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HomeMy WebLinkAbout00-03135 . .- ~ -". - "&" ~- ~-<" " ,~-~. ,,< ,.. - "o"~ - - SAMUEL E. JAMIESON, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, DEFENDANTS : 00-3135 CIVIL TERM ORDER OF COURT AND NOW, this ~day of July, 2000, IT IS ORDERED that trial on the within case shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, at 1 :30 p.m., Wednesday, August 30, 2000. Any discovery sought by defendants shall be completed in time to meet this trial date. \ By the Court, Edgar B. Bayley, J. 'oY /'; , ~ L-- ~f1_/,.DO ~ Michael J. Cassidy, Esquire For Plaintiff Keith B. DeArmond, Esquire For Defendants Court Administrator :saa "-'- _.- ". .,,~,-<- . OF ~_ r-;\:'"'I_\["'E r" \. 'I--L,\ .'--" .....'frnV 1~)\ (}j . 'f' "'-"r,,II' '\-\~\ '.;:-' ,_,,-~<";;\,<,.)i",,' . T~.~ . .,.;,\\:\;6 III ~b 1.\\. GO JU\- . "rUN\'! CUWi~r~~~Y~\I~\~'t>. ~-~ ~, ,~_l'!:1 . <"I - ~ ~_l!llJ:IIfl"'l'~,,~_,.~~!I!!'llit'\lf1il!lI/~.~'''f;!~'''-'W~~;'>'UR''1fmP,!!~~l1~~t.l, ~_ ''=' ,. ~Iw) . - ,~> ~, '" ",- ".~,-- ,~-. .-, '" ___, .'_v -, COO' ___'",-_-,_",';:'__":~~',-_~, ,,;'~:- """,-;,__-f'_;,~I',,",,,,-,,;:-.,,~,,;,,, ,~" -' ""-"",;"_,, ,,'_ J Richard J. Pierce Court Administrator OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square' Carlisle, PA 17013 'Phone Taryn N. Dixon (7-17) 240-6200 Assistant Court Administrator (717) 697-0371 (717) 532-7286 (717) 240-6462 FAX MEMORANDUM TO: The Honorable Edgar B. Bayley - e;07,W FROM: Taryn N. Dixon, Assistant Court Administrator DATE: July 5, 2000 INRE: 3135 Civi12000 SAMUEL E. JAMIESON v. RANDY S. ZIMMERMAN The above case is assigned to you for a non-jury trial. Please provide me with copies of your scheduling orders and final disposition date so that I can monitor the case for statistical purposes. Attachment . ,,"' .,"'>"~""", p-.. -,', "~<".-'_""!"U;,-;'_l""""'""",,:", -',,","0.'.; "",,,,;,,,,,',,,,.- > - < "'1, Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy I.D. No. 82164 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0 I 09 (717) 761-4540 Attorneys for Plaintiff SAMUEL E. JAMIESON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2000-3135 Civil v. CIVIL ACTION - IN EJECTMENT RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, Defendants PLAINTIFF'S ANSWER TO NEW MA TTER .ft. AND NOW, this ., D day of June 2000, comes Plaintiff, SAMUEL E. JAMIESON, by and through his undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and answers Defendants' New Matter as follows: COUNT I - FRAUD 21. Denied. Defendants' averments are denied to the extent that they are denials of or inconsistent with Plaintiff's averments. 22-26. Admitted. 27. Admitted in part. Denied in part. It is admitted that Plaintiff agreed to provide financing for the purchase of said properly. However, Defendants' averment is denied in that Plaintiff did not lend money to Defendants. Furthermore, Plaintiff never agreed to secure any amount of money by a mortgage in Plaintiffs favor. Also, Plaintiff did not agree to deed the property to Defendant, Randy S. Zimmerman. On the contrary, Plaintiff agreed to convey the property to Defendants via an Installment Sales Agreement because Defendants were incapable of securing financing for the sale of the properly themselves. " - ,-~ . _~'_" ',_0,_ ,c. ,_.., ,.. "~'-",.'- ,-- -",..<1' ~_.......+..;".-",~","c: -;~,F,"="--i~..., _"~ ." 28. Admitted. 29. Admitted. 30. Admitted in part. Denied in part. Defendants' averment is admitted to the extent that Defendant Randy S. Zimmerman tendered to Plaintiff $5,500.00 as a down payment on the property. Defendants' averment is denied to the extent that the verbal agreement for the sale of the property did not contemplate deeding the property to Defendant Randy S. Zimmerman and securing the purchase amount with a mortgage. 31. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment. 32. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment. 33. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment. 34. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment. 35. Denied. Defendants' averment is denied to the extent that the reference paragraph was not added without Defendants' consent or assent thereto. On the contrary, the referenced paragraph was added to the Agreement of Sale on September 12, 1991, the date of settlement on the subject property between Seller, Jean Wilson, and Buyers, Samuel E. Jamieson and Nancy J. Jamieson, his wife. The assignment clause was added with Defendants' knowledge and consent as evidenced by their signatures, which were dated September 12, 1991. 36. Denied. Defendants' averment is denied in total. On the contrary, the Agreement of Sale clearly indicates Defendants' assent and consent to the assignment of rights as evidenced by their signatures as dated September 12, 1991. . "~,-,<.,~, ~ ~, ,-- "'~, ,-0-";0:-,", - ,--~-, ';"'.- '-,"-,'- ~'-- '~~I-~"-'-"--- -"{~,.-,C"",,,i:c...l';;"'_--'_-_~,,___ "" 37. Admitted in part. Denied in part. Defendants' averment is admitted to the extent that sometime after settlement on September 12, 1991, Defendant Randy S. Zimmerman demanded that Plaintiff deed to him the subject property. The remainder of Defendants' averment is denied, particularly to the extent that Plaintiff never promised to deed the subject properly to Defendant Randy S. Zimmerman along with a mortgage in favor of the Plaintiff. 38. Admitted. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in his favor. COUNT II - UNJUST ENRICHMENT 39. Denied. Defendants' averments are denied to the extent that they are denials of or inconsistent with Plaintiff's averments. 40. Denied. Defendants' averment is denied in total. On the contrary, Defendants have failed to make payment to Plaintiff under the Installment Sales Agreement since September 1997. 41. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment. 42. Denied. Defendants' averment is denied in total. On the contrary, Defendants were required to make a down payment to Plaintiff in the amount of $7,500.00, in return for Plaintiff's agreement to purchase the property and enter into an Installment Sales Agreement with Defendants. Furthermore, under the terms of the Installment Sales Agreement, Defendants had a duty to repair and maintain the subject property. Therefore, any repairs or maintenance performed by Defendants during the term of the Installment Sales Agreement were done pursuant to their obligations and duties under the Installment Sales Agreement. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment in his favor. ",,""'"'c ~" ,- ~".< "'^ . ',_,'. ._.~, ','-", I.~" '.'1;j.,;-~"~'e'_''''_~'' _, .,".<2.,.,,' '.'._ '_', ~. ._> COUNT III - ESTOPPEL 43. Denied. Defendants' averments are denied to the extent that they are denials of or inconsistent with Plaintiff's averments. 44. Denied. Defendants' averment is denied in total. Plaintiff had no foreknowledge of, nor did he consent to, construction of a new roof upon the dwelling located on the subject property. 45. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of said averment. 46. No response required. Defendants' averment states a legal conclusion to which no responsive pleading is required. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in his favor. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: J. assidy Attorn .0. No. 82164 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff :135962 n_ " ,--,.-,~'-,,'. -d,,'~'_ ,--."".,", -~"~ ,.-"~[.-'--n.,,'f; ,-~, ....0. 'n..",,,,', -",,, '';-., ..,--",- .'''>-''t, VERIFICA TION I, SAMUEL E. JAMIESON, verify that the statements made in this ANSWER TO NEW MATTER are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A !l4904, relating to unswom falsification to authorities. Date: b 150 \00 . S.S&" Samuel E. Jamies CERTIFICA TE OF SERVICE AND NOW, this "'3 <:> of<- day of J- 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing ANSWER TO NEW MATTER upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Keith B. DeArmond, Esquire DeARMOND & DeARMOND 2800 Market Street Camp Hill, PA 17011 JOHNSON, DUFFIE, STEWART & WEIDNER ~(7 , By: ~ ~_ Mich I J Cassidy --) i."'i.k~,j' - ~" - .--'o.h'-~ ~<-....> '''--itiR.tltiiiIiIIIli~ f' ,',"",.<,;'" __ . ,. ,"~,' r;,.,;- " ""-""~-'.--'" ^" '~ ~ C) C s: -Om mfTl ~~~ -<~c r'CI ~;: 7~.~ ~2:': ~ ",. .,.~ ~,,~_ ,~ J, __ ~-,-~- '" Cl <:..) L- ,... r":: I U1 o "'TI .... T f-~l:O ~.r'n ;:_~~C-? ~~:~(J i-!_j~ ;;5f'O ~ 1; -< ~":J!lt. :::rt: '2 ':11 '0 ',', ",' " "'';'" _=,_, "~.' <' ,,.,,, _",c,,"_;~_;'~~ ,- ,~", .'1 ;"'-_".1'_,;,___" ;-,,>.-,. -",,",,"'- -',. ~ "'-'-~i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA SAMUEL E. JAMIESON, PLAINTIFF V. 2000-3135 CIVIL RANDY S. ZIMMERMAN AND PATRICIAL. ZIMMERMAN, DEFENDANTS CIVIL ACTION - IN EJECTMENT To: Samuel E. Jamieson, c/o Michael J. Cassidy, Esq. You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ,~ Keith B. DeArmond, Es . Attorney for Defendant DeArmond & DeArmond 2800 Market Street Camp Hill, PA 17011 717-730-9394 Supreme Ct. I.D. No. 58878 '. , . . "~-''''--'-''" ~, -'I ;. - -~ " " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAMUEL E. JAMIESON, PLAINTIFF v. 2000-3135 CIVIL RANDY S. ZIMMERMAN AND PATRICIA L. ZIMMERMAN, DEFENDANTS CIVIL ACTION - IN EJECTMENT ANSWER AND NEW MATTER AND NOW, comes the Defendants, Randy S. Zimmennan and Patricia L. Zimmerman, by and through their attorney, Keith B. DeArmond, Esquire, and files this their Answer and New Matter as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part and denied in part. It is admitted that the parties to the Agreement are obligated to the terms as alleged in Paragraph 10. It is denied Randy S. Zinnnennan is obligated under terms of the Agreement as he never executed said Agreement. 11. Admitted in part and denied in part. It is admitted that the parties to the Agreement are obligated to the terms ~ alleged in Paragraph 10. It is denied Randy S. Zimmennan is obligated under terms of the Agreement as he never executed said Agreement. 12. Denied. To the contrary, the Defendants aver that the last payment was made on or about May of 1998. B. Admitted. 14. Admitted in part and denied in part. It is admitted that the parties have not complied with the terms of the referenced agreement. it is denied that the reference agreement is valid and enforceable. 15. Admitted. J, ; ,l- ,_I ,n ',_' 16. Admitted. 17. No response required. 18. Admitted. 19. Denied. Defendants are sufficient knowledge to form a belief as to the truth of the averments contained in Paragraph 19 and therefore deny same. 20. Admitted. WHEREFORE, Defendants request that judgment be entered in their favor and against the Plaintiff. NEW MATTER COUNT I FRAUD 21. The averments contained in paragraphs 1 through 20 are incorporated herein by reference as if set forth at length. 22. In 1991, the Defendants entered into a sales agreement with Jean L. Wilson for the purchase of the real property located at 1017 Swarthmore Drive, NewCumberland, Cumberland County, Pennsylvania for $70,000.00. A copy of said Agreement is attached hereto and incorporated herein by reference as Exhibit" A." 23. Tbe Realtor handling the sale of the real property was Stephanie A. Jamieson, the Plaintiff's daugnter. 24. Pursuant to the aforementioned Sales Agreement, an earnest money depGsit of $2,000.00 was to be paid. A copy of a check evidencing the payment of said deposit by Defendant Randy S. Zimmerman is attached hereto and incorporated by reference as Exhibit "B." 25. In 1991, the Plaintiff and the Defendants, entered into a verbal agreement for the financing of the purchase of the subject real property. 26. Pursuant to the terms of the aforementioned vemal agreement, Defendant, Randy S. Zimmerman would provide the sum of $7,500.00 as down payment for the purchase of the suiject real property. Said sum would be inclusive of the $2,000.00 deposit already tendered. 27. Furthermore, pursuant to the aforementioned verba1 agreement, Plaintiff would provide financing for the purchase of said real properly. The amount of money loaned by Plaintiff would be secured by a mortgage in the Plaintiff's favor. The property would be deeded to Defendant, Randy S. Zimmerman. 28. 12,1991. Settlement on the purchase of the suiject real property occurred on or about September 29. Settlement was attended by the Plaintiff, Nancy 1. Jamieson and Randy S. Zimmerman, Defendant Defendant, Patricia L. Zimmerman was not in attendance. 30. Two days prior to settlement, the Defendant, Randy S. Zimmerman tendered the remaining balance of $5,500.00 due under the aforementioned verbal agreement directly unto the Plaintiff. ", ,-, "", -I',,',,>. - ',,- ,,- -',~l 31. Defendant, Randy S. Zimmerman left settlement with the understanding that he would be receiving a deed in the mail. 32. After a period oftime, Defendant, Randy S. Zimmerman became concerned that he had received no deed as had been represented. 33, Defendant, Randy S. Zimmerman discovered that the property had not been deeded to him as he believed was to occur, but in fact, said property had been deeded to the PIaintif[ and his Wife. 34. Defendant believes andaYer$ that the deed originally presented to him which names him as the Grantee, was altered to name the PIaintif[ and Nancy 1. Jamieson as Grantees. 35. Defendant subsequently obtained a copy of the original Sales Agreement Said Agreement was signed by the Defendants on t\1e bottom ofboth pages. Upon inspection of the Agreement, Defendant, Randy S. Zimmerman noted that the following paragraph was added above the Defundant's signatures on the first page: "My contractnal interest is hereby assigned to Samuel E. Jamieson and Nancy 1. Jamieson." 36. The Defendants believe and aver that at no time did they sign a document assigning their contract rights to any party. 37. After the discovery of the state of the title to the real estate, Defendant, Randy S. Zimmerman demanded of the Plaintiff that the subject real property be deeded to him as had been promised along with a mortgage in favor of the Plai:\1tiff. 38. To date the Plaintiff has refused to transfer his interest in the real property and produce a mortgage to secure moneys owed. WHEREFORE, Defendants request that : (a) the alleged deed be decreed fraudulent, void and of no effect, and that the defendants be directed to execute a conveyance to Defendants of the property described herein and that the Plaintiffbe compelled to accept a mortgage equal in an amount sufficient to secure those sums advanced by PIaintif[ for the purchase of the property less adjustments for those payments made to the Plaintiffby the Defendants; (b) the Defendant be enjoined from executing any transfer or conveyance to third parties of the property; (c) such other relief as the Coort may be deem proper and necessary. COUNT II UNJUST ENRICHMENT 39. The avennents contained in paragraphs 1 through 38 are incorporated herein by reference as if set forth at length. 40. Since the purchase of the real property, the Defendants made payments unto the Plaintiff according to their origirull agreement while continuing in their demand that the title be transferred. Payments continued as previou1y alledged. 41. Since the purchase of the real property, the Defendants have made numerous repairs, including bnt unt limited to the replacement of a roof. ~>-".- ;. - ,--;" -~ - -,"-,- i, ,I". -- ,'L'__ -'-, 42. Defendant has benefited from the Defendant, Randy Zimmerman by his providing the down payment for the purchase of the S~ect real property and by the Defendant repairing and maintaining said property. WHEREFORE, Defendants demand judgment in their favor and against the plaintiff in amount sufficient to recompense them for the down payment and the fair values of repairs and maintenance made on the subject property along with all monthly payments made unto the Plaintiff. COUNT m ESTOPPEL 43. The averments contained in paragraphs I through 42 are incorporated herein by reference as if set forth at length. 44. That with the knowledge, acquiescence, and consent of the Plaintiff, Defendants began construction of a new roof upon the dwelling located on the subject real property. 45. That with the knowledge, acquiescence, and consent of tile PJl1intiff, Defendants made valuable, lasting improvements on the subject real property. 46. That by reason ofhis knowledge, acquiescence, and consent to the possession of the subject real property and to the valuable improvements made thereon, Plaintiff is estopped from claiming title to said real property. WHEREFORE, Defendants demand judgmel1t be entered in their favor and against the Plaintiff. Respectfully submitted, DeArmond & DeArmond 4~' ./ i ,< ./'1 i -- ["./--- C ,/ G(z{) r;{) Keith B. DeArmond, Esquire 2800 Market Street Camp Hill, PA 17011 (717) 730-9394 Sup. Ct. ID # 58878 " ~ "',,, -I ~~ VERIFICATION I, the undersigned, do hereby veruy that the statements made in the foregoing document are correct to the best of my knowledge, information and belief. I understand that statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. " Date: 6 -/!-tJtJ 0.,' "', .' " e _. _'~~ "-'-",,' ' ,'.,-', I ,"-~~ -, _ ,_ --', " " VERIFICATION I, the undersigned, do hereby verify that the statements made in the foregoing document are correct to the best of my knowledge, information and belief. I understand that statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Date: &j;~o y1~~~.~ ,., >----.. AGREEMENT ~'OR THE SALE AND PURCHASE Of REAL ESTATE This form recommended and approved fori but not restricted to, use by members of the Oreater Harrisburg Association of REALTORSIIJ ~AOENT FOR SELLER~ ~SUB AGENT FO~ SELLERJ R t./ rnA't. f(\::.QI+y C.eflru,,--\ Ol \ A':::'5Dc..iQ.~~ L\)Ov\o...:(.. r1-b~oc..ia,;R..s PA. LICENSED BROKER PA. LICENSED BROKER :::l"t1:h day or A"3" s+ I. PRINCIPALS Between, :-r t!.6. Y"\ t,) ~ \.5("0, r-., (residing at ~::~~~~:tCal~\~lle;;,~j, ~~~~ ~::2, ;p:'~~?~~~i ~~~"g l .?;mfYVU""lYlo.~ hereinafter called Buyer. .' 2. PROrF.RTl:': Seller hereby agrees to s.elt and convey to Buyer, who hereby agr<<u. to purchase: ALL THAT CERTA'N Lot or piece of Quod with buildings and I prov ments thereon erected, If any, known as: 'Dli 5-.\1 "IAr-+hN"'\r-.'f"e" f? n. N. c.. 3. ZONING: Zoning Classlncation Pallure or this a8r~ment to contain the 2.on\ng classification (except for single family dwellings) shall render Ihis agreement voidable at Ihe option of the buyer and if voIded deposits tende ed-by the buyer s be returned to the buyer without a requIrement of court action. 4. TERMS: (a) Purchase Price . ."" This. Agreement made this IL'1L ., \0- be paid by the Buyer as fo-nowa: (br DEPOSIT Chedr: 11( Cash 0, Note 0 al Ihe sllll1lng or Ihls ajlecmenl. receipt or which I. hefeb)' acknowledged .................. If Note. to Ite redeemed on ot berore the ~, I A day or lei ADDITIQNAL DEPOSIT due on or before the ..__.____._______dllyor ,l1)~.... ............ (d) PALANCE OF PURCHASE PRICE al $tlllement l " 0 (cash, cerlineddta:k, and/or rnortCage rundd ......... .............. ......................... s () nl ODD. a d TOTAL....S ,0. ()r-.h.oD Wriuenapprov.lofSdlerlobeonorbcforelne .:)"1- day of ~~~~.r ,19..9...!- Selllement to bc ma.dc on or befote the l'n'tD dayoC _<....~Q____,19-9.1-. The Collowlo.,hall bc.allPDrtlOlled pro-tal. III of and lit l.Ime or JClllement. Tallel oJ levIed and Itues~, renls, Inlerest on mortgage assumptions, condonlinium rees and homeowner assoc:latlon feU If any. water and/or lewer renlslf any, logetller with any olher lIel1llble municipal scrvl<<l. All Rully Tlandcr Tues .haJJ Ire: dIvided tvenlyunlcuotllerwlse provided hefeln. 5. PROPERTY SE'f'Il.EMENT CON11NGENCl': Thil agrceOWlt II lubJa:IID the lelllement of Buyer', propeny localtd at ~ A ($ ..,OI()O() DO ..............$ 19_. Ol,CCO,OO {,j {O {I' onorbdore 6. FINANCING CONTINGENCYl Thll qr<<lIlenll. subject to Ihe nnllDcin, as follow,: NIA (a) PRINCIPAL AMOUNT $ TYPE MINIMUM TERM TIiRMINAL DATE for OblaJnlnl FlnanelnS Commitment Broker may advise Buyer of poulble SDurces of tnOfllage fund., bUI cannol assume responsibility for obtainlnll Buycr"lnorrgage. If sili.ld 10lln tlIl1111l1 be oblllhled as. berrln pfovldc:d, thil Aar<<niC:Qt shall be NULL AND VOID and aU. dcpo~lt monies sluill be retutl\ed LO lhe Blly(r on or btfOl"e dale of !CIllct11ent as provided heteln. subja:1 however to the provisions In Paragraphs 6(b} and 6(c). (b) Buyer shall make a completed appllcallon 10 a resr,onslble lending Insllllltlon ror lhe said loin within days from Ihe Seller'. approval hereor. Should the Buyer rail to make such completed application W Ihln the specified time. It shall be at the option of the SclJer, within nVe (5) days thereafter to: (II Declare IItfa Agreement NULL AND '\'010,11I. which lime, all monies paid on lICCounl will be forfeited to Sedler as liquidated damagcl, subjccllo the Rules and Regulations of the Pennsylvania Real Estate Comml$llon, or (Ii) III abscltCC: of wrhteo ootlce 10 the Bu)'<< by the Sdlcr da:larlng lhb Agreement NULL AND VOID,lhe comUlloQ and contingency provided ror In Ihb Paragraph, 10gdherwhhanYOlhernnanclngCOllllngenclcslhalma)'beherelnorendorsedhcrelo,shallnolongerprev81l.andlhl,Aarccrnentlhallrernalntrrecllvc:accordlng 10 lis lerms In lhe same mllJlner as If lhe condllion and tontlnaency were not a pari hereof. Ie) Seller or Acenl O1Ult tccdve a wdttencommltmenl valid IltItiltlul date of SCItkmenl, for Ihe Sltid loan, on or before Ihe lermlnal dale as tpccllied. If the said commitment Is not furnbhed wllh the terlOt as .peclncd herdn, or on olber lernu: aI:<<pled In wrlllna by Ihe Buyer, on or before llle s-pcdfled dale, Seller shall have the opllon, allhat date, or .ny, ~lher time thereafter, durin,tlle term of Ibis ^sreemcnt, until, but not beyond the date or recei!1 of Ihe tommitment by the SeUer, or Agenl, to lic<:tMe Ibis. "'1(~mcU\ NULL AND VOtD,by wtl1.kR I\0lkc 10 I~ Buyet oC hls.(1m dc<:iston 10uRcd, at whith It~.1 dcpll$\lmIlI\k"patdon aoeo\IM $h-all be felUl"lW! 10 Ihe Buyer, subJed to the pllyment required, Jf any, pwvided for In paragraph l2{b): (I), (iii, arod (iltl. ld) Seller hereby agrees to permlllnspectlons ~t aUlhorlud appralsersj reputable certifiers and/or Buyer as may be required by tile lending Il15tttutlon or Imulln, agcrocles, (c) Seller h'treby agrees 10 pay any morts~ <I,lscount polnls lit placement fc:c In Qt5e of a buyer requlrlnl VA, FHA, or conventional rllUlndns from a lendln,lnstilutlon requiring any one or all of aforetold fees, provldbla the total ofuld rees docs nol e1tCeed _'TI oflhe amounl oflhe mOll.age. 1. stATUS or WATE{C. AND -SEWER:. ScIlet wananll that t.h1s properly k servittd by ~tAh';r willer and D..uh\ic sewer, Fudller, Seller warrants thatlhesc: sJ'51eml arc fully paid for and. as oCthe dale of thili aBr ent are In lal.isfactory operating conditlo-;.!1afore5Aid systems are private, Seller WlllranlS Ihal lIe/lhe has no Informal Ion lhlll publle walef andlor sewer will be: aues5ed or Inltalled for alleasl shr (61 months aflet lhe dale of ~elllelnenl as aforesaId. I. MUNICIPAL IMPROt'EP.IIi:NTSr Sel~ has no notices of munleipallmprovemenlS (,uch as sidewalks, curbs, ne.) ucepl tJ () E "{( f'" (>ti (>n c;.. AccCQ 10 a tibllc road may require luuance of a HI,hway occupane permit rrom the Deparlmenl or Transporlalion. , . ).11'..(", Q dec.r MAXIMUM'INITIAL INTEREST RATE ... c:. 9. fiPECIAL LA St:Sl DPrlv,teWalerlSeplle '\(OIhel(sl: II, PERSONALTY: All e.lstlna plumbing, heating. IlIr.condilionlnB and IIlhtln, flxlulCl (Including chandeliers) and .ysl.eml aPPurlenanltherelo and formlnl a partlhercof, and other permanent fixlut:es, as well al all ranseS, laundry lubs, T.V, anlennas, masL~ and rolor syslem" log~ther writ! wall to wall car pel lng, .lCtccns, tlorm saslt andlor doorl shades awninJS, venellan blinds, coupling; for aUlomatie washers and dryers, etc. radiator cover.. cornice" witter softenefs, kllchen cabinets. drapery rodl, dra~ry ,ocI h~dw8fe: cunaln rods, .curtain rOG hardware, a1ltf<<S, shubberl' plantlngs now in or on Pfoperty, i"lt.ie <loor openers. sheds; Ir any, unless lpeclfically ucepted In this Agreement, are Indudcd In lhe sale and purchase PfIc:e..None 0 the above menlloned Items .hall be removed or lubstlluled by the Seller from premises after date of this "'j,feemcnt. My tcmalnlut-hca1lplandJor cooltlnt fuels stOled on It!e premIses alllme of sclllcment Itrc also Ineludtd IInder tbls Aareemenl. Seller hereby warr:!.'Ils lha. he/she will delivCf good title 10 all of lhe arlicles deterlbed In Ihis plU"llgraph. and any olher nXIUreS or Items or personally l(lCclntally .lCheduled to be Included In lIds mlc. Seller warrants all pWmblng. hcatlnj' air c dill IIlnl' mccltanlCltland ela:lllcal systems and e ulpalc II and appllancello be In proper working order at lime or telllelhcnl. 11liswarranty doesnollu,vlveelolpg. . -m,,~I-~ ~ ~~~~o . '7?;y .fln~~ ~ ~~~Z;~( "l.~ ~;;(;;~; in This Space) -M4 ~?~~J tJ.-?~ ~ I ;j 9//~1 G) ,-- O"QO",.", )?viii)) ;, C '"pidS 5.0'. q,~t" ~1 .,;,; "J'v'-1lytl. .1liI. iIlII, - - H. TIfl'.!'..:-\NIl COSTS: . (II) The premises are 10 be\:Onveycll in fee simple hy spc:dal warranly dCL<d, free and clear of allticns, encurubrallces and easemerus, EXCEPTING i-IOWI::VER, lhe following: E~i.l1ing building rClilrkliou~, ordinanus, easeDlellts uf roads, privileges or righls of public service companies, if any; or e:rsemems ur rcmiclions visible uponlhe ground, ulherwise the lille 10 Ihe llhuve described real e"ale shall be gooll and marketable or such as will be iusured by a repulable tille in.llIrallce cnrrrp:r"y 31 lhe regulur rares. (101 The 8uyer will pay forlhe followillg: . (i) The premium for litle lusuranec, mecllanics lien insurance and/or title search, Dr fee for cancellalion of same, If any. (Ii) The premium for noud insurance and/or nre Insurance wilh eJltended euverage, insuram:e binder eharges or caneeliation fee, if any, lili) Appralsalfee'andehar~spa;ldlnlldvallcetumort.q<<,lfany. (iv) Buyer's normal setllcmcnl t:o"s and accruals unlesS'otherwiscslated herein, _ . r (c) AllY surveyor surve)'ll whh:h may be requlrediby lhe Title Insurance Company or the abstracting al[orney fot the prepanllfan of an ad(quale le.gal deKriplion of lhe premises (or Ihe_ corrccllDlllhereoO, shall be sccured and paid for by Ihe Seller. However, any surveyor surveys desired by the Buyer or required by his morlgagee ~hllll besecurcd anopald for by Ihe Buyer, ., . (d) In Ihe evenl the Seller is uuable 10 give a good and markelable thle or such as wlll be in~ured by a Teplllable lilre company, ~ubjcel as afuresaid, Buyer shall have lhe uption of taking sueh Utle as the Seller can give wilhollt abalement of priee or ofbeillg repai.:l aU nloniespaid by the Buyer 10 IheSeUer on accounl of Ihe'purchase pri<<: and lbe Seller will reimbufse the Buyer fOf any eosls Incurred by llie Buyer for Ihose ilent.l spccilied in Pafapaph 12/b) ilemS (I), (iI), (iii) and in Paragraph 12(c); . Ilnd in lhe rallcr cvem Ihere shall be no furlher liabilil~,or objCl;tlon on eilher of Ihe parlies herelO and lh!s.i\greemenl shall becorne NUll AND VOID, 1),,1'/\ YMENT 0'" lJEI'OSIT: Deposils, regardless of Ifle form of paynlenl and life person designated as payee, shull be p4id 10 Agem for lhe Seller, who shall relain Ihem In UIl esnow aeooolll umll consummation or lerminallon of lhis Agrccmenl In conformity wllb allllpplieable laws and regulalitons, 'Agent for Ihe Seller may, at his or her sole oplion, hold any uncashed check tendered as deposit, pending tbe aeeeplance of this orrer, , ,." .' . If thue is II dispute hetween the Buyer and lhe Seller over who is enthlcd to the deposil, Ag~nl';'m not b~ responsible'lo resolve Ihat dispule and will nol be liable 10 either Buyer or the Seller for rdusing to release the deposll wllh;Dul an adequate wrillen agreement between Buyer and Seller or a."'lid \:Ou(l Ofder. Buycr and Seller agree that, In IheevenllheAgenl and/orSul1agenl,are/isjoined,lnIiUgaljon for the relurn 01 tkpQsil monlea" the Agent's'andforSubagenl'S reasonablcaltorney's rees and coslS will be paid by the pa;rty joining the Agenl orSubagcnt; I ~,' ;, I ,; '.' I 14. POSSESSION AND TENDER: . , ,. (a) Possession is 10 be delivered by deed, keY5 and physical possession 10 a va~anl building (If any) al day and time of selllemenl, or by deed and assignmenl of exisling leasc(s)allhe lime of scnlemenl if premises is tenant oe~upied at the signing of Ihis Agreement, unless otherwise specined herein, Buyer will acknowledge uisling leasc(s) , by initialing said leue(s) altime of sianing of 11115 Aareement of Sale if lenant occupied, . (b) 'Seller wlllnol enter inlo any new luse{s), \Hillel! ex.lension of exisling luse(s), if any, or addilionallease(s} for Ihe premlse~ wilhou! express wrlllen cOnselll of Ihe Buyer, (c) Formal tender of an executed deed and purchase money is hereby waived, : : t i I -,," I (d) Bu)'t:r reserves the, right 10 make a pre5dtlcment InSpecllon of Ihe subJecl premises, and will ex.e~ule approprlale documenlation' of su~h Inspection. 15. RISK OF LOSS: (a) Seller shall maintain Ihe property (ineluding all llemsmentiOlled in parag raphlllhereln)andanypenoualproperlyspeeifieallyscheduledhereininitspresentcolldilion, normalwearalldlearnceptcd. . (bl Seller shail bear risk of loss from Ore Or olher casually unJillime of ulIlemenl, In the evenl of damage to the properly by fire or other casualty, Buyer Iiball have the uplion of rescinding Ihis agreement and rC'l:eiving hand mqney Paid on aecbu>;lt QT of lI~ceplina the Ploperty in II. lhen eonditioo with the proceeds of any insuranee recovery obtainable bySeUer. Bllyeris hereby notilied Ihal he may Insure'his equllable Interest In ths property lIS oftht time of lhe aceeplallCe of this agreement. 16. REPRESENTATIOf'l5: It is understbod thai Buyer has Inspected the properlY, or hereby waives Ihe rllht 10 do so and he/she hIlS agreed 10 purehase il as a relult or such inspeetion and nOl breause of Dr in relianccupon any representation m ade by Ihe SelJer or any olherorncer, partner or employee of SelJer, or byl he asent or the SeHcr or any of lbe latter's salespersons and employccs, or by a cooperating Broker, if any, or any or his/her sale!penolU and mlploYeel and Ihal hc:l5he has agrCl:d 10 purehase il in ils present condilion unless otherwise speelfied herein and fUllher aeknowledges that lhearoremenlionedparllesare nol quallncd to repder an opinion on eoustrllclion, engineering, or environmelllal lIIatlefs and thslthe buyer has bccnad visedlhathe/shemayrequifeorwishlo~klhFassislanceofex.perlSlntho$Cfields.ltisfllrtllerunderslood lhalthis Agrccment cODlains the whole agreement between the Seller and Buyer and lhere are no olher lerms, obliglUions, covenanls, repTesenlaJions, slalements or conditions, oral or olherwlse of any kind whatsoever concerning Ihis sale, Furthermore, this Agreement shall nOl be a11Ued, amended, ehangw or modified exeept in wrlling exeeuled bYlhcparllesln:reto, . . 11. RECORDING: This agreelUeot shall not be recorded in lhe Ornee for the Recording of Deeds or in any olher ornee or place of publie reeord, and if Buyer shall record lhis agreemenl or 1:au5e. or permll Ihe same 10 be recorded, Seller may, at his/hct oplion, eJe~IIO treal such ad as a breacl\ of this agrccment, 18. ASSIGNMENT: This Agreement ~hall' be binding upon tbe reiipeCUVe heirs, exeeutors, adminiSlraton, snecessors and, 10 lhe eXlenl assignalole, on lhe aSiiigns of the parties herelo, Ii being expressly understood; however, thlllhe Buyer slutll nollrander or assign Ihls'Agreement wilhoullhe wrlllen consenl of the Sellcr being firsl oblained, 19, NON.I,I/\DILlH' OJ: AGF..NT: Agenl{s) or Sub_Agentls), If-any, ate rer,resenling SeUer, nutll,e Duyer, II I~ cxprL'!ldy m"krs!l'lId ~nd ogre..'li helwc<:II lile ih1nles hClel" lhatlle herein mImed ogenl, bi~ber ~ale'llCrsu,ns and ~mpluyees Dr all)' ".mc.er ~r porloer or ogenl, ~nd anycwperatlng-brokcrandhlS/hersalespeuonsandemplayeeslndanyorf1~rorpllrlneloflheeoopc:rallflsbrUkdareaclmgasagelltolll)'rnbrrnglllglheDuycrlllldSdlcr logelher, and will in no case whalsoever be heid liable jointly or severany to either parly for the performan~e of any hem or eoveuanl of lhi5 Agreemenl or far damages for Ibe nonpc:lforman~elhereof, ' 20, DEFAULT - TIME IS qr TnE $,5SENCEt The said time for sClllcmenl and all olher hems referred to for Ihe performanee of any of Ihe obJiaalious of Ihis Agreemcnl afe herebya.reed to be of thC'.essence or this Agreetllent. Should Ihe Ruyer: (a) Fail to make any addldonal paymcnlslS,speeWedIn Parasraph 4, , (b) Furnish false or Incomplete Informallon 10 Ihe Seller, the Seller'. agent, or the mOrlillge lender, eoncernlng Ihe Buyer's legal or nnandal Sl~lus, Dr fad 10 eooperale illlhe prot:essina uf Ihe morlga~ loon appHeatlon, which ad. wuuld result. In the failure to oblaln the approval of a morlgage 10lln commrlmenl, or Icl Violale Dr fail to fulnll and perform any of the terms or conditions of Ihls Agreemenl, lhen In sueh case, all deP,Dsit m~nies and other sums paid by Ihe Buyer on a~eounl of the pllrchase price, whether required by this Agreemenl at not, may be retained: . Ii) by the Sellet onaceounl of the purchase price, should the sellCf demandt he full plltchaseprice, or Iii) as monies 10 be applied to the Seller's damages, or . as the (M~let~:~~~:~~d':rh: ~~~III~:a~~r:~~lIer declS 10 relaln Ihe monies as liquidated damages ill aceordanee with Paragraph 2O(c)(iil), lhe Seller shall be rclealcd from all Jlablllly or obl1aation as thls Agreement shall be NULL AND VOID, 1\. RF,COVl'.RY FUN'): '" real t1i\l\te lecuv<<y fund nis\stu reimburse-any persons wno 11115 oblained a final eivil judgment qaillst a Pennsylvania real eSlale lieen..ee Qwing It) fralld, misrepresentation, or det:elt In a real eslale trall!action and who has been unable to colleCllhe Judgement after exhausling alll~gar ~nd equilable rem~dies. For ~urn- plcleddailsaboullhefund,etlUI711)7a1_16n. 21, DESCRIPTIVE HEADING: The descriptive headings used herein are for convenience only and Ibeyare nOI inlended to indicate all of the m_lIer in Ihe seellons which follow them. Accordingly, Ihey shallllave no enecl whalsoever in delctmining Ihe rights or obligalions of the pardes. D, AGREEMENT: THIS AGREEMENT CONTAINS THE WHOLE AGREEMENT BETWEEN THE SELLER AND DUYER. THERE ARE NO OTHER TERMS, OllLlGA. TIONS, COVENANTS, REPRESENTATIONS, STATEMENTS OR CONDITIONS, ORAL OR OTHERWISE, OF ANY KIND WHATSOEVER CONCERNING THIS SALE, EXCEPT AS ATTACHED TO THIS CONTRACT, " [Do Not Write in This Space] .' This Is II legally binding contract; If nol understood, consull your allorney. This Agreemelll and ~ny amendments th~relo, ~ay be eKeeute,d by the,parlies by way o.f Ir.aniim.'ii~ion lhrouah a facsimile (FAX) maehine, such a copy JhaU have Ihe samt legal enforeeabililyand bindingeffeel upon Ihe partIes a! though It were Signed by all parties III orlglnal form. APPROVAL BY BUYER: In wilness whereof, the pallies herel~, inlendina to be legal1y bqund hereby, havc ."\:t..[) ho...nf t Q, n(UY)U~ DUYER WIT~~~ER a '1 OS tu =at.k DUYER WITNE5SASTOIlUYER nd seals Iheday and year first above wrillcn. (SEAL) (SI::AL) 'vesconlractlhls~' ,,-,J d.Y,r~~ .,,~ SEtlE~ . .,{)~ SELLr:II.~ _(SEA!.) IrSA /(~ 11/'111 (SEAL) WLTN' AGENT BY: "A ~- .>f"U-" ,~ , " 'llcl {...4('d 1ilfJ-,J ~ ;J. l.( _ A': 'J""ijfi'1. - " " ' ~. . . ,.;~. :. :"." ::-,.,..," - ,. I:" ~.n,li ...~ "'. RANDY So ZIMMERMAN 418 3RD STREET, 2ND FLOOR. NEW CUMBERLAND, PA 17070 PHONE 717-n4-1527 ~'9k 0697 ~~11 ......,. T....... /) " .; -i.,. r~;J- ~ 1" - /\...~_~.~ . ...... . .~ "-J ~"f -1 -:. .. I ~ ~~/",~~e~ ~~~~ \~ .I. >OR~ PUOO' ! I ~ (J. DOLLARS ! I MEMO ': 2:i 1.3 7 5 b :101: 0 '100...:1 2'1 2:\u" -', ,~ - . "c' 'L' _ i ~.;..."I~-. J" _ '-, ~."_, ; " . , , I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAMUEL E. JAMIESON, PLAINTIFF V. RANDY S. ZIMMERMAN AND PATRICIAL. ZIMMERMAN, DEFENDANTS 2000-3135 CIVll, CIVll, ACTION - IN EJECTMENT CERTIFICATE OF SERVICE I hereby certifY that I have served a true and correct copy of a Answer and New Matter via United States First Class Mail upon the following: Michael J. Cassidy, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Date: June 20, 2000 ~rz~ " KeithB. DeAimond, EsqUlH.../ DeArmond & DeArmond 2800 Market Street Camp Hill, PA 17011 717-730-9394 ., ,~ 'w"-~~~""~~~~iI~~i!;~MI~<\Ifu"""""'~'*".il"W'!-cl"W1>.l!!iilllJfm~__~'~c.:, ~~ -,' >- q~ ~ 7'.J C~; "--)- I" .' ,'~ - --.' . (5~ . , . Ei:;;- __.J C': ~:; ~. [i L.i.~ o co -'" t;~' ~~~ ";".f (;1 "'Z: C::) ("',-.' ':: _of::/) i':~:; <~J ~~ ~~ () ::::) Q ~ '\1.""..""v _r~'.,..".>' "~.Wc"" ,~ ~,. ., "~ "~~~ _0',"', -'~.ili ~~ . . 1<... " " ~'J PRAECIPE FOR LISTING CASE FOR TRIAL (Mu~t be typewritten and submitted in duplicate) TO THE POOTHOIDI'ARY OF CUMBERLAND COUN'1'\' Please list the following case: (Check one) for JURY trial at the next tenn of civil court. ( XX) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) Civil Action - Law Appeal from Arbitration SAMUEL E. JAMIESON, (xx) Civil Action - In E-iectment (other) (Plaintiff) vs. The trial list will be called on and RANDY S. Z IMMERMAN and PATRICIA L. ZIMMERMAN, Trials commence on (Defendant 13 Pretrials will be held on (Briefs are due 5 days before pretrials. ) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 3135 Civil 2000 ~ Indicate the attorney who will try case for the party who files this praecipe: Michael J. Cassidy, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER, P.O. Box 109, Lerroyne, PA 17043-0109 Indicate t:cial counsel for other parties if known: Keith B. DeArn1ond, Esquire DeARMOND & DeARMOND, 2800 Market Street, Camp Hill, PA 17011 This case is ready for trial. r Signed: L- ~ L],. ~ Print Narre: MichU J. Cassidy, Esquire Date: (, /Z.9 !(J,) I , Attorney for: Plaintiff "~ [jJld."u.r.......~''''''';Ij'''.''"~~"'''"'''~;'''''''''"''w";I;"),:",J<"',,'''_,'o-'-,,,,'=,,~cdiL..,u,M,)''',,j:jll;;l.iHi)jhl!iil\ijiU:lgjiillJli'-- - ~;n;,~t\\jiMiii~~" L -~ ~-~ ~,.-< i () c~ 0 C 0 -'n 'S: '- _::.:J v.cd c..--: ~f'n r- -t..!.! :::u 'f- z:c- J ..-,rn (j) ....-- U1 ..::.:,<-, -?--;;:>. ~ , r:C; -:~~ ~' :;;:>, ~C) :::!: @~~ ,sO 9 PC: ~ ';J1 ~ :0 <0 -< =^- .~" '......~ ,~I ,,"""'''"": , Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy J.D. No. 82164 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 AUG 28 ~ - Attorneys for Plaintiff SAMUEL E. JAMIESON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2000-3135 Civil v. CIVIL ACTION - IN EJECTMENT RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, Defendants PRETRIAL MEMORANDUM PURSUANT TO LOCAL RULE NO. 212-4 AND NOW, this 2.5ltday of August 2000, comes Plaintiff, SAMUEL E. JAMIESON, by and through his undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and files this Pretrial Memorandum pursuant to Local Rule 212-4, and states as follows: I. STATEMENT OF THE FACTS AS TO LIABILITY During 1991, Defendants Randy and Patricia Zimmerman, who were husband and wife at that time, were attempting to purchase a new home in New Cumberland, Cumberland County, Pennsylvania. Defendants signed a Sales Agreement to purchase 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, and made a Two Thousand Dollar ($2,000.00) cash deposit on the property. However, Defendants could not qualify for financing of the home. Plaintiff, Samuel E. Jamieson, and his wife, Nancy Jamieson, deceased, agreed to purchase the subject property and, in turn, arrange for Defendants to purchase the home from Plaintiff and his wife by way of an installment sales agreement. Defendants assigned their rights under the Sales Agreement to Samuel E. Jamieson and Nancy J. Jamieson. Settlement on the property took place on September 12, 1991. Plaintiff and his wife paid Seventy Thousand Twelve Dollars and 71/100 ($70,012.71) cash at settlement. The cash used to purchase the property was money saved by Plaintiff for his retirement. This cash transaction is reflected on the HUD- 1 Settlement Sheet, which is signed by Plaintiff and his wife. 1 .' . I ~'" l,j'''t....Jilil'''''''''''; ~ , Immediately upon purchasing the property, Plaintiff and his wife agreed to allow Defendants to reside at the property pursuant to an Installment Sales Agreement. Defendant Randy Zimmerman refused to sign the Installment Sales Agreement. Patricia Zimmerman, Plaintiff's daughter, did sign the Installment Sales Agreement. The ISA called for a total cash purchase price of $62,500.00, to be paid in equal successive monthly installments of $657.37 on the same day of each month. A 9.5% per annum interest rate was applied to the unpaid portion of the installment principal balance. Furthermore, Defendants were responsible for payment of real estate taxes, water and sewer rentals, fire insurance, liability insurance, and repairs. The ISA further provides that if Defendants fail to pay any monthly installment when due, Plaintiff may terminate the Agreement and bring an action at law or in equity to recover damages for all losses resulting from the breach of the ISA and/or recover possession of the property. Defendants have resided at the property since September 1991. Defendants have failed and refused to pay any monthly installments since September 12,1997. II. STATEMENT OF THE BASIC FACTS AS TO DAMAGES As to this action in ejectment, Plaintiff seeks recovery of possession of the property as well as loss of income. Defendants have failed to make any payment under the ISA since September 12, 1997. Thus, Plaintiff is entitled to recover possession of the property under the terms of the Installment Sales Agreement. Also, Plaintiff seeks recovery for loss of income from rental payments for the approximately thirty-six (36) month period during which Defendants have occupied the property without making any payments under the ISA. Plaintiff is entitled to $23,665.32 (36 months x $657.37 per month) plus interest and penalties. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES Plaintiff contends that this is an incontrovertible case and there are no issues of liability or damages. Nonetheless, Defendants have filed three (3) counterclaims in the form of New Matter. Count I of Defendants' "affirmative defense" claims Plaintiff committed fraud. Count II claims Plaintiff was unjustly enriched to the extent that Defendant Randy Zimmerman provided a down payment for the purchase of the subject property. Count III claims Plaintiff should be estopped from ejecting Defendants from the property 2 ~ " .~~,i ~ , since Defendants allegedly made valuable, lasting improvements to the property. IV. ADMISSIBILITY OF EVIDENCE There currently are no legal issues pending regarding the admissibility of any testimony, any exhibits, or any other matter. V. IDENTITY OF WITNESSES TO BE CALLED A. Samuel E. Jamieson - Plaintiff. B. Stephanie Boyd - Plaintiff's daughter; part-time real estate agent who brokered the sale of 1017 Swarthmore Road, New Cumberland, Pennsylvania. VI. LIST OF PLAINTIFF'S EXHIBITS A. HUD-1 Settlement Sheet for purchase of 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12,1991. B. Agreement for the Sale and Purchase of Real Estate for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated August 29,1991. C. Deed for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12, 1997, and recorded in Cumberland County Recorder of Deeds Book H, Volume 35, Page 773. D. installment Sales Agreement for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12, 1991, between Samuel E. and Nancy J. Jamieson and Randy S. and Patricia L. Zimmerman. E. Termination Letter dated November 19, 1999, from Samuel E. Jamieson to Patricia Zimmerman and Randy Zimmerman. F. Final Termination Notice dated March 28, 2000, to Patricia L. Zimmerman. G. Final Termination Notice dated March 28, 2000, to Randy S. Zimmerman. 3 Co,' I ,~I ~ '" t-."~,,Ji , , VII. CURRENT STA TUS OF SETTLEMENT NEGOTIATIONS The parties to the above-captioned lawsuit have been unable to negotiate a settlement. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Micha J assidy Attor e .0. No. 82164 301 arket Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4040 Attorneys for Plaintiff :137574 4 "'_.HI I CERTIF/CA TE OF SERVICE 25 Ii AND NOIN, this day of August 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing PRETRIAL MEMORANDUM upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Keith B. DeArmond, Esquire DeARMOND & DeARMOND 2800 Market Street Camp Hill, PA 17011 JOHNSON, DUFFIE, STEWART & WEIDNER " , ",-" "".", ,- ".,-,""" "'. '"~ ~"-';L , , Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy J.D. No. 82164 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 AUG 28 2~ Attorneys for Plaintiff SAMUEL E. JAMIESON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2000-3135 Civil v. CIVIL ACTION - IN EJECTMENT RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, Defendants PRETRIAL MEMORANDUM PURSUANT TO LOCAL RULE NO. 212-4 AND NOW, this 1.5tt.day of August 2000, comes Plaintiff, SAMUEL E. JAMIESON, by and through his undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and files this Pretrial Memorandum pursuant to Local Rule 212-4, and states as follows: I. STATEMENT OF THE FACTS AS TO LIABILITY During 1991, Defendants Randy and Patricia Zimmerman, who were husband and wife at that time, were attempting to purchase a new home in New Cumberland, Cumberland County, Pennsylvania. Defendants signed a Sales Agreement to purchase 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, and made a Two Thousand Dollar ($2,000.00) cash deposit on the property. However, Defendants could not qualify for financing of the home. Plaintiff, Samuel E. Jamieson, and his wife, Nancy Jamieson, deceased, agreed to purchase the subject property and, in turn, arrange for Defendants to purchase the home from Plaintiff and his wife by way of an installment sales agreement. Defendants assigned their rights under the Sales Agreement to Samuel E. Jamieson and Nancy J. Jamieson. Settlement on the property took place on September 12, 1991. Plaintiff and his wife paid Seventy Thousand Twelve Dollars and 71/100 ($70,012.71) cash at settlement. The cash used to purchase the property was money saved by Plaintiff for his retirement. This cash transaction is reflected on the HUD- 1 Settlement Sheet, which is signed by Plaintiff and his wife. 1 -,' "" ~ "k' ~.,' .' ;"_~ "." ~F" ",. '-'''.-Ji '~I ~ Immediately upon purchasing the property, Plaintiff and his wife agreed to allow Defendants to reside at the property pursuant to an Installment Sales Agreement. Defendant Randy Zimmerman refused to sign the Installment Sales Agreement. Patricia Zimmerman, Plaintiff's daughter, did sign the Installment Sales Agreement. The ISA called for a total cash purchase price of $62,500.00, to be paid in equal successive monthly installments of $657.37 on the same day of each month. A 9.5% per annum interest rate was applied to the unpaid portion of the installment principal balance. Furthermore, Defendants were responsible for payment of real estate taxes, water and sewer rentals, fire insurance, liability insurance, and repairs. The ISA further provides that if Defendants fail to pay any monthly installment when due, Plaintiff may terminate the Agreement and bring an action at law or in equity to recover damages for all losses resulting from the breach of the ISA and/or recover possession of the property. Defendants have resided at the property since September 1991. Defendants have failed and refused to pay any monthly installments since September 12, 1997. II. STATEMENT OF THE BASIC FACTS AS TO DAMAGES As to this action in ejectment, Plaintiff seeks recovery of possession of the property as well as loss of income. Defendants have failed to make any payment under the ISA since September 12, 1997. Thus, Plaintiff is entitled to recover possession of the property under the terms of the Installment Sales Agreement. Also, Plaintiff seeks recovery for loss of income from rental payments for the approximately thirty-six (36) month period during which Defendants have occupied the property without making any payments under the ISA. Plaintiff is entitled to $23,665.32 (36 months x $657.37 per month) plus interest and penalties. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES Plaintiff contends that this is an incontrovertible case and there are no issues of liability or damages. Nonetheless, Defendants have filed three (3) counterclaims in the form of New Matter. Count I of Defendants' "affirmative defense" claims Plaintiff committed fraud. Count II claims Plaintiff was unjustly enriched to the extent that Defendant Randy Zimmerman provided a down payment for the purchase of the subject property. Count III claims Plaintiff should be estopped from ejecting Defendants from the property 2 --, " "'"~" ...,,-It.' ~ since Defendants allegedly made valuable, lasting improvements to the property. IV. ADMISSIBILITY OF EVIDENCE There currently are no legal issues pending regarding the admissibility of any testimony, any exhibits, or any other matter. V. IDENTITY OF WITNESSES TO BE CALLED A. Samuel E. Jamieson - Plaintiff. B. Stephanie Boyd - Plaintiff's daughter; part-time real estate agent who broke red the sale of 1017 Swarthmore Road, New Cumberland, Pennsylvania. VI. LIST OF PLAINTIFF'S EXHIBITS A. HUD-1 Settlement Sheet for purchase of 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12, 1991. B. Agreement for the Sale and Purchase of Real Estate for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated August 29, 1991. C. Deed for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12, 1997, and recorded in Cumberland County Recorder of Deeds Book H, Volume 35, Page 773. D. Installment Sales Agreement for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12, 1991, between Samuel E. and Nancy J. Jamieson and Randy S. and Patricia L. Zimmerman. E. Termination Letter dated November 19, 1999, from Samuel E, Jamieson to Patricia Zimmerman and Randy Zimmerman. F. Final Termination Notice dated March 28, 2000, to Patricia L. Zimmerman. G. Final Termination Notice dated March 28, 2000, to Randy S. Zimmerman. 3 , , :137574 ~ . '_~>'~_"b,^,_J~ '" "". "-_' ~,,~.'-' c.,,- ."'_' ," VII. CURRENT STATUS OF SETTLEMENT NEGOTIA TIONS The parties to the above-captioned lawsuit have been unable to negotiate a settlement. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Micha J. assidy Attor e .0. No. 82164 301 arket Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff 4 . . . CERTIF/CA TE OF SERVICE 2sd AND NOIN, this day of August 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing PRETRIAL MEMORANDUM upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsyivania, addressed as follows: Keith B. DeArmond, Esquire DeARMOND & DeARMOND 2800 Market Street Camp Hill, PA 17011 JOHNSON, DUFFIE, STEWART & WEIDNER , ""['" . ]-+-"1".,., '--; > ~~ 1 Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy LD. No. 82164 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff SAMUEL E. JAMIESON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff .AHJ<J fliIJ. 3/ J-S' .. ~ v. CIVIL ACTION - IN EJECTMENT RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, Defendants NOTICE TO DEFEND To the Defendant: 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 defense 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 properly 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, Pennsylvania 17013 Telephone: (717) 249-3166 .', .., -'<' ~,. J _ ~ 1- '..lSll!i. Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy LD. No. 82164 30 I Market Street P. O. Box 109 Lernoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff SAMUEL E. JAMIESON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. D1J - 3/-3!r 6..;.:J t--U- v. CIVIL ACTION - IN EJECTMENT RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, Defendants COMPLAINT AND NOW, this /7"" day of May 2000, comes Plaintiff, SAMUEL E. JAMIESON, by and through his undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and files the following Complaint averring as follows: COUNT I EJECTMENT 1. Plaintiff, SAMUEL E. JAMIESON, is an adult individual who resides at 405 Sixteenth Street, New Cumberland, Cumberland County, Pennsylvania. 2. Defendant, RANDY S. ZIMMERMAN, is an adult individual who resides at 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania. 3. Defendant, PATRICIA L. ZIMMERMAN, is an adult individual who resides at 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania. 4. Defendants are currently divorced from each other, but continue to reside together. .~. -,' , "-"..'.-1 ;,,_, '.,""l. .~~, 5. Plaintiff is the father of Defendant Patricia L. Zimmerman. 6. Plaintiff is the owner of real property located at 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as the "Property"). 7. Plaintiff acquired title to the Properly on September 12, 1991, through a deed recorded in the Recorder's Office of Cumberland County, in Deed Book H, Volume 35, Page 773. A true and correct copy of the deed is attached hereto, incorporated herein by reference, and marked as Exhibit "A." 8. Defendants are currently in possession of the Property pursuant to a real estate Installment Sale Agreement (hereinafter referred to as the "Agreement") dated September 12, 1991, to which Plaintiff is a signatory as Owner, and Defendant Patricia L. Zimmerman is a signatory as Purchaser. A true and correct copy of the Agreement is attached hereto, incorporated herein by reference, and marked as Exhibit 'IB," 9. Under the terms of the Agreement, the total cash purchase price for the Property is $62,500.00, to be paid in monthly installments. 10. The Agreement obligates Defendants to pay equal successive monthly installments of $657.37 each, on the same day of each month, with the first installment payable October 12,1991. 11. The Agreement further provides that if Defendants fail to pay any monthly installment when due, Plaintiff may terminate the Agreement and bring an action at law or in equity to recover damages for all losses resulting from the breach of the Agreement and/or recover possession of the Properly. 12. Defendants have failed and refused to pay any monthly installments since September 12, 1997. 13. Plaintiff sent written notice of default to Defendants by letter dated November 19, 1999. A true and correct copy of Plaintiff's letter of November 19, 1999, is attached hereto, incorporated herein by reference, and marked as Exhibit "C." . , . , ' ~.."~, ~I,,''''- _' ., "_~. , ~...,.,.~J'i 14. Defendants have failed and refused to timely cure the defaults of which they were notified by Plaintiff's letter dated November 19, 1999. 15. Thirty (30) days written notice of termination was sent via U.S. Certified Mail to Defendants, individually, by letter dated March 28, 2000. A true and correct copy of Plaintiff's letters dated March 28, 2000, along with copies of the signed Return Receipts are attached hereto, incorporated herein by reference, and marked as Exhibit "D." 16. Despite termination of the Agreement which became effective April 30, 2000, Defendants have refused to vacate and surrender possession of the Property to Plaintiff. WHEREFORE, Plaintiff respectfully requests that this honorable Court enter judgment in favor of Plaintiff and against Defendants for possession of the property herein described: 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania. COUNT II LOSS OF INCOME 17. Paragraphs one (1) through sixteen (16) inclusive are incorporated herein by reference as though fully set forth at length. 18. Plaintiff claims damages in an amount to be determined for Defendants' failure to pay the agreed-upon monthly installments from September 12, 1997, up to the termination of the Agreement. 19. The fair-rental value of the Property is the monthly installment amount reserved under the Agreement. 20. Plaintiff claims additional damages for Defendants' unlawful detention of the Property in the amount of the Property's fair-rental value from the termination of the Agreement to and including the time of trial, less any sums received on account of rent since the termination of the Agreement. ".. ~. - '-,- 1 ,__'1_ _w'_'" ., ' j WHEREFORE, Plaintiff respectfully requests that this honorable Court enter judgment against Defendants for unpaid monthly installments and rent plus interest and costs in an amount in excess of $25,000.00. JOHNSON, DUFFIE, STEWART & WEIDNER By: . ssidy I. . No. 82164 301 Ma et Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff :134513 VERIF/CA TION I verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A ~4904, relating to unsworn falsification to authorities. Date: 5( ~1{C)o S.r, ~' Samuel E. Jamies I.",", ~" P 102-DEEO-WARAANTY IND. OR CORP. R ST-t CClpyrlphl1976C1 by ALL.STATe LEGAL SUPPLY CO. 0110 CClmmorco O,Ivo. Crol\ford. N. J. 07016 mf!in IDl.'l.'ll i mad'.!h, r.;b 10 day of fttnt1M- , 19 '1/ iBttwttt1 JEAN L. WILSON herein desigJtuted a.~ lite Gnmlors, AnZ'l SAMUEL ,,; 'JAMIESO~:ana:NANCY J/JAMIESON ":.. Husband and Wife herein desiuuuted (J.~ the Grcmtf!t!s,' ulitnusetll, that the Grantors, for and in conl:lideration of SEVENTY THOUSAND 'and 00/100 ($10,.000.00)..........,..................................... . DOLLARS lawful 'Iltoney of tlte United Stale; of A?I~e';ca., to the Grantors in ha.nd well amI truly vat'a by tlw Gral/lees. at or before the sealing and delivery oj these presents, the receipt whereof is hereby ac1mowletloed mid the Grantors being therewith fully satisfied, do by the:;e pre:;ent:; Orant, bargain, /leU cwd CQIlvell unto the Grantees forever, Cumberl.and tract or parcel oj land and premises, situate, iI/illY cUtd beil'll ill the Borough of New. C:umberland in tile CUUll(Y of and COlnmmiweaJ.th oj Pe~1I1vaniflt more particularly described as j'o/lOW3: l\11 THAT CERTAIN BEGINNING at a point on the northerly li~e of Swarthmore Road at the dividing line between Lots Nos. 19 and 20, Block "AII on the hereinafter mentioned Plan of Lots; thence northeastw9rdly along the westerly line of Lot No. 20, Block nAil on the hereinafter mentioned Plan of Lots, one hundred forty-three and seventy-seven one-hundredths (143.77) feet to a point; thence south eighty-nine degrees forty-three minutes west (S 890 43' W) along the lands formerly of Elmer E. Zimmerman one hundred fifteen and forty-six one-hundredths (115.46) feet to a point; thence southwardlY along the easterly line of Lot. No. 18, Block IrAIl one hundre{ nine and eighteen one-hundredths (109.18) feet to a point on the northerly line of Swarthmore Roaa;thence along the latter line east- wardly by a- curve to the right having a radius of three hundred five (305) feet and an arc distance of sixty-five (65) feet to a point, the place of BEGINNING. BEING Lot No. 19, Block nAil on the Plan of Lots of Section 1 Park Hills and Drexel Hills, said Plan being recorde~ in the County Recorder's Office in Plan Book 7, Page 23. 1 I 'I I !I I I I I 1 i of High1anr I Cumberland I HAVING THEREON ERECTED a brick and frame dwelling house known as 1017 Swarthmore Road, new Cumber1ana. Pennsylvania. SUBJECT to restrictions ana conditions as contained in prior deeds. BEING THE SAME premises which Ronald J. Calhoun and Doris L. Calhoun, husband and wife, by deed dated Dec.ember .16, 1967 and recorded December 21, 1987 in the Office of Recorder of Deeds, in and for the County of Cumberland, pennsylvania, in Deed Book C, Volume 33, Page 565 granted and conveyed unto Benjamih H. Wilson and Jean L. Wilson. The said Benjamin H. Wilson having expired on March 6, 1988, thereby vesting sole title to Jean L. Wilson, his wife, by operation of law. W-t'st- JAw-'" School Dlst. Cumbo Co., Po. -t% Real Estele lransfer.Tax Dnto 7-r3"1IAmt.3S0'QP f!vW-f ~~ Climb. Co. Dlst. Co!. Agt. A 8orourzhof At V- C,(l.!,-e...fl'l J Cumbo Co,# Po. -t.,*,Real Estll.lo1ronsfer"Tax; Data f-r?-?/ Amcd.s;-O .OQ If .{ofAr;J. 2 ~ Cumbo Co. DIs( COl. Agt. ' ~PKH 35 PAGE 773 l~~"",,, I,"""L" '" . ,0 COMMONWEALTH OF PENNSYLVANIA == D,PARrMEI~T OF REVfNUE :: :: "ALTV ==---= ~~'1i' E----1 =.=: }~~~~~rEIlSEP13'9i ~:r.cll 70 O. U O,~~ ,';;;0 . tlii.IiH.9 .___....,.~_._.J;;.: , ".,\'1' " .~ " :~'. .,<., , <:", ~"<:" "'::f:~)~-"';'~' ~, "E.~ORDED-OFFlCE or HiE'. f;EC0ROI.;;, OF eEEOS ~ CUMeERLAtW (;OUNTY.~PA. '91 SEP 13 AI'! n 10 lIlogtlqrr with all and singular the buildings, improvements, way.s, woods, waters, watercourses, 1-ights, liberties, privileges. hereditaments and appurtenances to the same belonging or in anywise apperto.ining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereoj; and oj' everu part and parcel thereof; Anb alBa all the estate, right, title, interest. use, possession, property, claim and demand whatsoever of the Grantors both in law and in:equity, of, in and to the premises herein described and evmJ part and parcel thereof with the appurtenances, lIlo lJQu~ nnll to IJolb all and singular the premises lwrein described together with the hereditaments and appurtenances unto the Grantees and to Grantees'proper . use and benefit forever. . . Speciall Y 1\nll the Grantors covenant that, except as may be herem setfaTth, they do and will fortutr wQfrant and llrfrnb the lands and premises, hereditaments and a:ppurtena.nee8 hereby con'Veved~aoai1Ult the Grantors and all other persons lawfully claiming the same or to claim the same. /11. all references herein to any par#es. persons, entities or corporations, the use of any particular gender or the plural or sinoular number is intended to include Ute appropriate gender or number as the t6%t oj' tlte wWtin i1tsbou11lellt may require. , . Wherever in this instrument any party shall be des!qnated or referred to by nall~e or general refere7~ce, such designa. tion w intended to and shall have the same effect as if the words "heirll, 6%ecutor8, administrators. personal or legal representatives, ~ccessors and assigns" had been inserted o/ler each and every such designation. . In JDlIitl1tllll Wllttrtof. the Grantors have hereunto set their hands and seals, or if a corporatio1l, it has caused these presents to be signed by its proper corporate officers and its corporate seal to be affi:xed hereto, the day and year first above written. Bignell, 'taltil ana JhUurnil . In t~t prtltnrf of l Of Jltt"ltb bll ...~.~~~~Qp ~ ... ,_. .......-...:::#::. """'-...(f,............ . . ............................. ...' .,., J L. WILSON .. . . . ; -0.:.:...'.......""'..'" CllDmmDl1UJtnlt11 Df -,fltl1nglnnnIB., Cllol1ntg of ,lit It l!l.m.mbmb, thDt on 4 I L Clm.hdM..tL Illll.: llf / 1 before 'me the subscriber perstmally appeared JEAN L. WILSON known to me (or satisfactorily proven) to be the person whose name is subscribed to the within deed and acknowledged that s he executed the same jor the purposes therein ccm'.ltined. . ~,,,,;;:;,::i.' WlitnuB my hand and seal the day and year oresaid.1. f} I!-/:.~ :i~~~., '.. ...~ i ._k'" '1-fL..J!..1 .~t ,0', ."'~, NOl~R""S""1 . , .. ."........ .. .."'l":"'~, 'J'"'.~''''~''''''''''''''''''''''''''' ". t:f .. ~:r- ... . ...,~... CA "~:::-,'" HQU.y F. :-\EU.!:::A, Nf.r1nrl Publlo ...i;:._ z' 8";~':.~ ~,/:.'.tit..~ l HampC3nr~.,p.. C:m~bt'rJ:ir,:lCQuntu ,~"": "~; r,'~" 'l'rrJ:~ My^-- ,., E .';1 ~,A."\.I ~lJt.' .,""" ~ ..._ ..-...:::::."mS~Qn XP;ssMerch15.1.993,\r '~l" ""~~';~'.~/.;'~;:: -.,..- .iF!-',,~":S-I," ~".:~'-,l. 'O".O'K\ 13'. 0;; r.Ie.E '774."'~_0':~'ii.~~';?~;~:/' u M v ""':i~t.,~tt:" _. --- I _~ 1- .; QlommonlUtallq of ~tnnagluanla, Qluuntg of ill! it mtmt1l1brrtb1 that on 19 personally appeared who acknowledged self to be the "'" """ --.,+' ,ss.: . b($Jim~ me the sub.'icriber, of a C01'Poration. and that being authorized to do 80 as such corporate oJ]icer executed the Jimt{loino illstru1ncmt for the purposes therein contained on behalf of tl~e corporation. ltDJlfnt.lls my hand and seal the day and year aforesaid. ......................................"..........,.....,................,.... REGISTERED BY THE OORDUGH DF N CUMBERlAND , 91 9,-- oS Secretary '" ~ ::r- o () Q (6 ~ ~ ~ lit) C h ~'.,.., .."'\''\.~~.,,f~','. . :.,.;.,.~il...fl1t"...."(tr~~~~,\~". .l:!(\Q.~q.' ,'.1 ~...~jr"\:: '. ;:~),l,~~ ;~t("~~'l '~. ?l"\'t~~, ...., '; ,~~.".... . '([1..... d.~~~ .~1,.1 ; ;;:~>1" . ~ ~ C' .1. ","(i", 1,,( .,,!!.,tt' "'.'," I, , ""~,.~\~l;.' .' ,~~j State of pennsy\i,ia'riia",'} ss County of Cumberland Recorded in the office for the recording of Deeds etc. in and for,~umb.~oun~> ..-17'1 . mct...dBook 1:1- Vo Pag~'/;) witness my hanc{ and lSeal of offic f Cf/ Carlisle, PA this f~'"tf1 da of 1~ " . ... '" ,; ~ ~'O' I;.~ - -.:; "''' ...~ '" .~ "" . Q .~ ., . ~a 1i~ " - ,,"- - ~ 6,8 ., " t ij " ~ 'U.:3 :5~~ '" . 'U'&j d ~~6 aooK ~ 35 PAC, 775 ~ ~ ~ ~I~ ~8 ,,~ \--., "\ . ~. I~ : 1]1 i ~,I i ~'tl~\ .1, ~.,i Page 1 of 5 AGREEMENT MADE this 12th day of September, 1991, between Samuel E. and Nancy J. Jamieson owner(s) of the hereinafter described premises, ("Owner"), and Randy S. and Patricia L. Zimmerman ("Purchaser"). BACKGROUND Purchaser desires to purchase the premises situate and known as 1017 Swathmore Road, New Cumberland, Pa., New Cumberland Borough, Cumberland County. ("premises") (See attached description) by making installment payments on account of the purchase price, desires to occupy the premises while making such installment payments, and will receive the deed to the premises at a later date. Owner is willing to sell the premises and receive payment in installments. ' Now Therefore, the parties hereto, in consideration of the mutual covenants contained herein, and intending to be legally bound hereby, do enter into this Installment Sale Agreement, pursuant to the provisions of the Pennsylvania "Installmen't Land Contract Law" of June 8, 1965. 1. SALE OF PREMISES. Owner agrees to sell the premises to Purchaser, who agrees to purchase-the same, upon the terms and conditions set forth in this Agreement. The premises includes any building or structure located thereon as at the date of this Agreement. . 2. PRICE AND PAYMENT (a) The total cash purchase price for the premises is $62,500.00 Accordingly, the balance of the purchase price to be paid in installments is $62,500.00 (ltinstallment principal balance"). (b) The installment principal balance shall be paid, at such place as shall be designated froln time to time by Owner, in equal successive monthly installments of $657.37 (Subject to change due to changes in the costs of Taxes, Insurance, Utilities) each, on the same day of each month, the first installment payable the 12th day of October, 1991, but Purchaser shall have the right to pay additional monies in reduction of the installment principal balance at any time and in any amounts. Each monthly payment is to be applied as follows: (1) First to interest on the unpaid portion of the installment principal balance at the rate of 9.5 percent per annum, then (2) To payment of one-twelfth of real estate taxes and water and sewer rentals, then (3) To payment of one-twelfth of annual premiums for fire insurance on the premises with extended coverage, and for liability insurance, then (4) To payment of any repairs and assessments chargeable to Purchaser or authorized under the terms of this Agreement, and then (54) The net balance of each monthly installment shall be applied in reduction of the unpaid installment principal balance. 3. OWNERS COVENANTS. (a) Owner covenants with Purchaser that Owner's title shall be good and marketable during the entire term of this Agreement and that the only liens and encumbrances affecting the premises shall be those which can be extinguished by the payment of a definitely ascertainable sum not in excess of the unpaid installment principal balance. (b) Upon Purchaser's written request, at reasonable intervals no oftener than once every six months during the term of this Agreement, Owner will: (1) Inform Purch~ser in writing of the then unpaid installment principal balance, and (2) Furnish Purchaser with a compl~te itemization of all components of all installment payments, and (3) Make available to Purchaser for inspection, all tax and insurance receipts for the premises and all bills and receipts for repairs of which Purchaser is responsible. 4. TIME FOR SETTLEMENT. Settlement for the purchase of the premises shall be made: Seven years (7 Years) from date of purchase, at the option of the seller. Seller may choose to extend this time at the option of the buyer. ."~'I Page 2 Own~r shall 9i')(' r'urehUG~I' dt least ninety (90) days' notice of the date fixed for settlement unclel section 4 above. or at least (10) days' not.ice if settlement 1.:3 fixed under the pru../i8.l.0nS of Section 4 above; provided that if tilL~ inSUrall(~,"_:- is ordored promptly by Purchaser upon receiving notiCE! of ,:.;.~L.llc'm(;'fi\:" ,"~('Ltl(':11l0nt :::::11",.11 noL take place until the Litl(~ report has bu,:'" 1'1 Cp~l.l \"<J 1.>'/ U'r',j Litle insurance company. Time Is of the essence of t.his Agreement. S. AT SETTLEMENT. (a.) At :>01 U(-'IIH,;"lil (:(,0111', 11 (.kdivcr t.o P'.Hchascr a fee simple deed with special warranty (,l~U30, conveying the premises to Purchaser. (b) Purchaser St101J, PDY, at ~eLtlement, for title insurance, conveyancing, chvr<jc::, I)f th,.:> Iflort.f,~a9c::', ::\nd oLhcr u::3ual and customary C08t~:; paY<-.lble by [] : 1.1]' ':, 11..18(') " (c) The titl(" actually conv0ycd t.o r'ulci',. mark€,table and such d::::; ~,'ill ['0 In:"-.urc:! <.: ]">:'81IJ;)1 t.itle insurance company in,.:;'..!)- i,n-; t. i:, l' pre-mi" which tl,e prcolises ~r~ ~,W~"~~~' (d) Th8 ,-Fl'::; ;:nel (,t'.C!.II'"'.'l .J.' il" cooking range, €'ne! J.;)'_'!f"I'::- . 'if.' property of OI,ln('r ".)'.' ,1:: ii"'" :3etllernent. (,,) All r': authority shull b0 (f) Formal :..., shall b..l good and '-at03 by any responsible 1(.c~t8d in the county in Ii ;,11,.1 plumbing system, ! ~!hi(:h are the 11 t.". t-_]",lll':;f'~rred at :11 ".1." b(~'r 11'~' l;,:, I tendf?f' of r il'...... '1.1 I '~h':::l:_"_' I dr::..:,d clf"ld , ,1 Y.', .~: ~ 1111 ' t" '.1 L,y ony g0v0rnmental :'.C'nd;:'l" vi rnold,,:,::~ are hereby waived. 6. POSSESSION OF PREMISES. uwnor agr,-,G:.;..; to del iver possession either by the assignment, ell U11) tim~,;' of 1:he signin9 of this A!;lreement, of the existing written or ':;ral J.e,J:C;":-'~;; e'r lr lh", buildillg upon the premises is vdcdnt, purchu:::;er ::',1\<.111 1"101...-1:) Uk: ) i<)ll::" t.v Oc.cupy t.he building immediately upon apPl'oval <,.11'1'.1 ':"_l.i\.:(--,, (,I thi~'-, t,'J'o" ':-':W(: 111:, by Owner. If such building is not vacanl: at the tjfri'_;' ,:,!7 I:h,.:, 0i'.1nln'J oj' thi':".~ f\UY'~'("rnent, Owner does not CQV(1nant t.o d(-d.j\,',", <:.c~,:,~:.iun 1'_C' {>urcl\o:;c'r, but ~.Jill cooperate with Purch,1ser to ,3S~.';.i.:!{I: f."IJrCh;.'l.~3e) t<J obti,(in po:::;:;.,os'':..lon .Jt Purchi;\ser's expense. Owner does I,.lWYT;Hll ii <I: :"I.I'-',.:'j'':-''''.'1 ':~h;;lll helve l.h':' rj,ghl: 1:0 possession. 7. MAINTENANCE RErAIRS, CASUALTY LOSS AND INSURANCE. From and after the cxccut.lo\1 of l~h.i'-:; (""~)\ (;:"(:~ITI'":!rlt., f'urchascr 8hall iJ.ssum~) and be responsible for the flklirlLe\li.Hll.,:.:e of the' prenli:.";>.:~s (and the building(s) contained thereon) ill 'd('(Y..: 0l'(Jcr ":ll'"ld rcp"dr. and Purchaser shall indemnify c,),nd save OwnE-.'r hdf'lll'L':,3''::; '...If Cind frOl1l ;.Hld all cl<:\irll:"=:~ for work and labor done or materials furni'.~h,,:,j ill u:.-nn",",tion "d.th t.he nVlint:.."'nanc.Q and repairs of the 8~Ctid prcmi'~;,~,:::;. Pj~;:,k ()'r ,~,,11l1~3~Y," !o I:h,. r',::-iilj~:;0.'Z~ by firu or other casualty shall not voiJ tIlls A9l'c~mGnt, but shull bo Purchasor's risk. Purchasor sho.ll oblaill .)IKJ III<:lint<.lin in full foY'("(:- and effect fire insurance with extended covcr'-::lgc~' in arnourrt:?; nod companic:;;; 8pprovcd by Owner, insuring both Owner and PUI'ci')JS~I' ~s thoir inlGrcsts may appear; ~nd the original policies shall be lodged witl1 6lnd rot0inod by OW1"!8r until settlement hereunder' . 8. PUBLIC IMPROVEMENTS. f'urclvJscr ::.~hnll ~)(~cH the cost of all impr ovements mad,::) pursuilnl to the author i ty of any government agency ("public irnprov2f11crrl::';") ro,t" 1,.>11..)( k done c'r ordervd to be clone in and about t.he prBrnis(~3 by an> ~:::'..((.h 9)\/r:\ HfliG'ntal i;'J;J8T'iC} ir0fd ,:'rl'~ nil(:J the date of this Agrl'Jement; it beS fig uncl,-:--'r::-:tood fcmd 8.gr('0'(\ I' Iv\1: ':'I!I!~-Ir'l \-);J:'O; f1i.l ~,nowledge of any notice presently out?:tandinu 1"(,1' l~h~:l p!;.q-forman'c-(' of any such work. 9. INSPECTION. Owner tJr hl'~" 8uthorizE'd fJgoTlt_ :::hDl1 have the right at dll reasonable hour'::.; cf the .)..:;:/ l',) (.:11\:'(;\ th;,:' prcIIiL'=",:,'~:; for lh,) purpose of inspection 'to ck:t0rlilill'} 1,-111,~'l:h~'1 r'ulclk1~~,i:l i::.'; '_lJlIll',J.~(i.119 wiLh Lhe l","'rms of this Agreement. 10. OWNER'S REMEDIES_ (a) In t.he <',".'/;,'ni'. monthly instal 1 rnc l'd:. , (,1 sum pay...~blc by Pure lla:.'",~r by Purchaser pursuant t_lJ both of the followir:!~; (1) Own<,T [11;);' i>:'rrni n,.)l:_(, t.his Ag;"r.:;:'i1ICflt, provick'd, however. that as <E\ conciition pr".'o:,,:'dcnl~ I~," I~h.: (:x<l"ci::,c:' of" ::::uch 1 i.!'Jht, Owner shall serve upon Purchasor a WT ltt.('r) T"lcd:ic:e of t.f;:~nllin;;lt.i(lll ("Ilulic(-."). which notice 811a11 be either s81'ved per~o11ally or by rogistcl'0J 01' certified mail sent to the last kno\oJn acldr('::-;s of Purchaser. ThE: notice :;,:,hall specify the nature of the default, and if t.he defaull arises from PUrCiiiJ.Ser'S failure to keep the premises in goud rCP41ir pur::.'u,:illl~ to Lho provisiulls of Lhis Agreement, the notice shall conlain .:t rc<;;ollably SP0'c:il7ic ::..~liJLc"mr'n~~ of tho itt~rns in dis- repair. Th,~' 11(,t..lC" Ild1.; '.,[--,,'r.j["/ lh,:: fJ'lopo:_,,~'d cJ.:Ji..~ (lr te',mindtion, but in no . 1 1 I "- " , ,I~ i - 1- '_'f ':HI'! <lofoult by Purcha:3cr in the payment of any r:.,r "in a ,';::,;c:,:::,:;IfI-:'n1. for publ J.':". imp1 ovements, or of any G,.. ,: "I L! , ;(;' ("r n.:'p;J i r ::;, IIl.Jd-:".' I_,y ('Jf I' or Owner and payable t.h;:' terms of I:.hi':.': AtCHeOm"-~nl:.,, Ownol may do either or .............II'~._.j -"'L the notice is served upon or received by Purch"lser (th.,:) "~ervice 'date") if termination is to take place because of failure by Purchaser to have made one,or more monthly installments when due, or less than sixty (60) days ;-'af'tEitT the service date if the termination is to occur because of failure by ',,: rp.urchaser to make repairs as aforesaid or for failure to pay an assessment :~for public improvements. If the default(s) set fort.h in the notice shall have been cured by Purchaser prior to th8 proposed date of termination, then . and in such event the contemplated termination shall not take place, and ':',-iI,\'thilil, Agreement shall continue in full force and effect. It termination does : ;>~.~:~:~(~'take' ",place, Owner may never theless mal ntai n an action for damages for breach ',:'rof this Agreement as well a$ an action 'fOl th0 recovery of possession of the premises as may be provided by law or in this Agreement, or both. (2) In addition to termination, Owner may also bring as action at ,(" '.Law or in Equity to recover damages for all losses resulting from the breach Qf""this Agreement, which damages shall be linlited to the recovery of any .:;')i? unpa,id "monthly installrnent(s) due prior to the surrender of the premises, or t,",:'"unpaid assessments or expenditures payable by Purchaser under the terms of \;l,":...thi,s""'Asreement including all installment and assessments for public '.:,';~'i(:~:impr:'ovements due pr ior to the surrender, of the premises by Purchaser, and .>.c w,tw'never Purchaser is responsible for repairs) also the value of the :';'/'r'epai rs made by Owner pr ior to the surrender and also the cost of any actual , ,r'epairs done by Purchaser of the vandal ism of the prernis.;:s pr ior to actual 'delivery of possession to Own€!)". and the eXC""S$ of the unpaid installment // -,~pr incipal balance over the mar ]..et pr ice at the time of the breach. However, "1'. the _unpaid installment principal balance shelll not be considered an item of recoverable damages. '< (b) If Owner shall become enli lleu Lo r.)v:;;;;~(~:::sion of the premises. '-'-'and 'Purchaser shall then fail to peaceably remove from and surrender >',::".possession of the piornises. Purchaser hel"eby author izes any attorney, as ;:1"8}t;',iatto.r,ney for Purchaser, to file an agieement for enter ing in any competent ,''',f,~.court'. an amicable action and judgrnellL' in ejectment agai nst Purchaser. and :,,<al.l. persons claiming under him for the reCOVel'y by Owner of possession of ':",::':the premises. for which this f~9rE:efllent shall be hi:.;:; sufficient warrant; /ii::,~::,~whereupon, if Owner so desil'es, a Writ of Poss8ssion. may issue forthwith ",',<,'!:~~:w:i:'!;.,h'out any prior writ of proceedings whatever. and provided that if for any ~~~r~ason' after such action shall have commenced the same shall be terminated JV;,i?fmd,.:the possession of th(;J premises shull remain in or be restored to the >, ,::~'.pur6haser, Owner shall have the right, upon any pr ior or subsequent default .' (::':~:',~,hioh, 'gives 'Ownel" the r i9hl to possession. to br i ng one or more amicable ;\~:YFl:l'ctions, as hereinbefore set forth to recover possession of the premises. ,':I,'>;,1n' any amicable action of ejectment, if Owner shall cause to be filed an . {affidavit made by him or someone acti ng for him setti ng forth the facts .... necessary' to author ize the entry of judgment. of which facts such not be (: ..',nec,essary to file the original as a warrant of attorney. ):f:;f:;':: (c) Purchaser expressly agrees that. except as may otherwise be ::'}~i-:!:;rprov~ded for in the Pennsylvanio. "Installment Land Contract Law: of June 8. ;','!i~i.g'1965', any judgment. order I or decree E:<ntered against him shall be final, and .'.::\'.i;'ilj'f)u'rchaser shall not take atl appeal, certiorari, writ of error, exception, or \{,~'objection to the same, or file a motion or rule to strike off or open or "ta'y',":execution of the same, and releases to Owner and to any and all ttorneys who may appear for him, all errors in said proceedings and all "ilibility therefor; and he further expressly waives the benefit of any and """.',811',;'s1:.ay of execution or eXDrnption from "ivil process provisions of any law. :r;~.~~~~fof.-.:,the Commonwealth of Pennsylvania or of any other applicable governmental ';,~~!Y~!tau,t.,h"Qr'ity now in force or hereafter to be passed. t.his waiver to extend to "It!~;'~':~'nch"to be applicable in any proceedings or actions for the recovery of ")':.c.~'po:ssession, for damages, breach of contract, or for rent, whether by . "::,;-;1.'l.'dJstress or otherwise. It is expressly agreed that execution fOl" possession, ;~:;"~,_dam_ages, breach of contract , or otherwise may issue upon any judgment : ente,red in any proceeding immediately upon th8 entry of such judgment. . :,(!r,::' 11 . ' NON-DEFAULTING PURCHASER'S REMEDIES. ':j~\;,:,~:",/ ,: (a) In the, event Owner shall fail to perform any of the covenants ~$~torth,in Section 3(b) of this Agreement. a non-defaulting Purchaser may <.?':.,'etither of the following: " ";\,., ,,;\'; (1) Such Purchaser may terminate this Agreement, and provided ~"'" that.,.,he surrenders possession of the premises, such Purchaser may maintain :''-t~: 'an~action against Owner to recover payments of principal made under the :'PY'o,V,isions of this Agreement, and payments for any assessments for public improvements paid by hi{lI, and other damages which such Purchaser may have '~uff!3'red, but such Purcha::::er shall not be 0ntitled to i!1terest on any such ,<,'payments. Full performance by such Purchaser shall be deemed to have been ";;:di"made0so ,:long as he continued to tender each monthly installment payment ,:;'i>,'p'u.'rsuant to this Agreement to the time of the surrender of possession. . (2) So long as lho default continues, such Purchaser may remaln ~~ ~' --'~~ ~ '-'1 Page 4 in possession under this Agreement and tender to Owner each monthly installment provided for in this Agreement less that portion which is allocable to principal, if Owner shall have refused or neglected to disclose' the information required to be disciosed under the provisions of Section,:c.//:!:,iiL 3( b) of this Agreement. Purchaser, in maki ng his tender, may withhold from,<:?i:::_j-. each monthly installment, that portion which ho in good faith estimates:as . bei ng allocable to pr i ncipal, and \.<Jhen Owner's default has been remedied ~,'" Purchaser shall pay to Owner all sums which have thus been withheld. ,,' A Purchaser who elects either of tho remedies set forth in paragraphs (1) end (2) immediately above sheil servewritton notice of his election ..', upon Owner, personally or by regi::stcred or certified mail return receip,t;:?,~X,-'i:"',: requested, and shall with reasonable particularity state the reason fot.'his action and the remedy he has elected. the notice shall state that Purchaser intends to termi nate the Agreement or that Purchaser intends to commen'ce . withholding principal payments unless on a specified date not less than' sixty (60) days after se)"vice of the notice or receipt of mailed not'ice by Owner, Owner shall have c.ured the uofault ond shall have advised Purchaser of such curing in writing delivered personally to him or sent to him by registered mail to his last known address. (b) If Owner shall havr) failed to keep his title good an marketable. during the entir€.! t<nm of t.his AgT"E"c>mcnt itS provid0d for in Section 3(s'):clf this Agreement, and .:, non-def.::ttJlting Purchaser shall demand in writing, at any time after the c-'xpiratioll of said 30 days, in the absence of such curing, terminate this Agreement on account of uncertainty and recover" from Owner all monthly installments paid, less the portion allocable to taxes~. water and sewer rentals, and insurance premiums, and less the cost of repairs made by Owner for which such Purchaser is responsible. 12. DEFAULTING PURCHASER'S REMEDIES. (a) If Purchaser has paid on account of the total purchase price a sum in excess of twenty-five percent thereof, and shall have voluntarily' surrendered possession of the promises as a defaulting Purchaser~ he shall be entitled to recover that portion of the cash purchase price paid by-:hlm in excess of twenty-five percent thereof. less any actual damages sustained" 1,1, by Owner resulting from the breach of this Agreement by Purchaser, including,",," but not limited to tho excess of the unpaid i nstallrnent pr i ncipal balanoe','-:' over the market price at the time of the breach, any unpaid monthly installment payment(:3) due pr ior to the surrender of the possession, and ';" .' (whenever Purchaser is rosponsiblo for the repairs) the value of the repal-rs; made by Owner pr ior to tht:J sur r onder and the cOst. of any actual repairs -made. '" by Owner subsequent to the surrender. which repairs became necessary by reason of damage done by Purchascr or the vandalism of the premises prior to the actual delivery of possession back to Owner, and any assessments for public improvements. (b) In order to obtain such recovery, such defaulting Purchaser may maintain an action at law or in equity. That portion of the cash purchase price which will have been retained by Owner under the provisions of this Section 12 shall be considored as liquidated damages covering possible losses to Owner sustained by the breach of this Agreement, for use and occupancy, and for depreciation. and not as a penalty. (c) No action under the provisions of this paragraph may be' instituted by such defaulting Purchaser unless the same shall have been instituted within one year from the date of such purchaser's default. ' (d) No right of actJon by defaulting Purchaser shall be deem-ed ".8 cloud on Owner's titlo, nor shall it prevent Owner from conveying a clear title to the premises because of the pendency of such action. 13. ASSIGNABILITY. Although this Agreement is subject to unlimited assignment by Owner, it is not to be assigned by Purchaser without the prior consent of Owner. Purchaser shall not rent nor sublet the premises without the prior written consont of Owner. 14. NON-WAIVER. Failure of either party to insist upon strict performance by the other party in one or more instances shall not be construed as a waivQr, reloase, or relinquishment or any term, covenant, or condition of this Agreement" but on the contrary. each term. covenant, or condition of this Agreement shall continue in full force and effect. 15. INTEGRATION. This AgrOt'ffient is tho cnti re agrf2ement of the .parties and there are no understandings dealings with the same subject matter other' than those contai ned herei n. Thi::, f-\gl"E:ornent cannot be modi fied except. by a writing signed by the parties hereto or their authorized assignees. 16. INCLUSIVENESS. In this Agreeolent the singular includes plural,a'nd male gender includes the female gender. , " .1 , ,......;;:1"'" .... /.;;,p".~:"F,.. NO RECORDATION. any public office. "'c' "...,..,.,.....,19... TITLES. The titl"" to ,~':' :,':'p'u~plose of clarity only and are This Agreement shall not be lodged for record in tho oections 0F thic A91'o~ment are for the not to be deemed part of this Agreement. .::p!~},\,'\~~:S,~~~HA-)" ; .'" _, '..',\~.::. '" f . "/INWITNESS WHEREOF. the parties hereto have executed this Agreement the day :.:' ,;J\":.n'~~,:Yeiar'-'first above written. ':;,::;,y.;,;:"-" ,~~:'.:r.,:+,:- 'f ".",io 'll.", ,""'T"."'E"S" 'S"E' 5"': '",'i'.W.. " . .: ':~>:;~">~~";;~:i~':::'I::i,;;'\':; ;:: -, j . :' (Seal) :','" Purchaser ::PAiluir,tu 'rt ~M\ (Seal) Purch-' 'ar ~~e~~Seal) i(A~? t~f/1/YH;Mh{) (Seal) "':'::'~i""'W"."" ';J;~,~1f;i{r';: : , }l,\~. ~ ~. . "',.' ::':~~~~.t~I"1 "_', ;'iH~~t,:::; , ' f.;- r,.,t'r:r:.f..:'/,',:;< :,.... .',,; " .".,,' '1/1' I.r_ ~n/ll~A~,,,'~ ' :;,',t~:~4\i:k'-I;>"; ;'. ,) :"",,~"'H:'; lt~, i ~':.:; , t ~'~ '". :'.i :):i-"" ~ , .1:.,;', . ,," ~ ~ ~ .. ~, ^ Patricia & Randy Zimmerman 1017 Swarthmore Road New Cumberland, Pa 17070 Dear Pattie & Randy, November 19, 1999 , "H i i! 11 Ii II II [I I I I I I I I I I I This is .to inform you that you must leave the premises at 1075 Swarthmore Road, New Cumberland, Pa within thirty days (30 days) from the receipt of this notice. Due to not paying your payments as agreed to, according to the agreement of sale between you and I. I am very sorry that I must do this, but I did use my retirement money to purchase the property for you and Randy. I need the money to make repairs to my home. Due to you not making the payments for two years the compound interest has caused your balance to add up to approximatly $72,000.00. If you had made your payments as agreed to, your balance would be approximatly $56,000.00. Sincerly, Samuel E. Jamieson 405 16th Street New Cumberland, Pa 17070' JERRY R- DUFFIE RICHARD W. STEWART C. ROY WEIDNER- IR- EDMUND G. MYERs DAVID W. DELUCE RALPH H. WRIGHT, JR- DAVID J. LANZA MARK C. DUFFIE KEIRSTEN WALSH DAVIDSON MICHAEL .J. CASSIDY LAW OFFICES JOHNSON, DUFFIE, STEWART & WEIDNER A Professional Corporation 301 MARKET STREET P. O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WEBSITE: www.jdsw.com TELEPHONE 717-761-4510 FACSIMILE 717-761-3015 E-MAIL mail@jdsw.com HORACE A JOHNSON OF COUNSEL WRITER'S EXT. NO. 38 E-MAIL mjc@jdsw.com March 28, 2000 _I Palricia L. Zimmerman 1017 SWath more Road New Cumberland, PA 17070 Re: Termination Notice FilE COpy Dear Patricia: Please be advised that we represent Mr. Samuel E. Jamieson with respect to the Installment Sales Agreement dated September 12,1991, for the property which you now occupy at 1017 Swathmore Road, New Cumberland. Under the Installment Sales Agreement, you are required to make equal monthly installments of $657.37 to Mr. Jamieson. According to my client, you have failed to make any monthly payments since September 1997. Failure to make timely payment each month constitutes a breach of the Installment Sales Agreement. Under the Agreement, Mr. Jamieson is entitled to terminate the Installment Sales Agreement in the event of breach or default by the purchasers. Mr. Jamieson sent an initial Notice of Termination on or about November 22, 1999, in accordance with the requirements set forth in the Installment Sales Agreement. This letter serves as a second and final Notice of Termination. YOU MUST VACATE THE PREMISl';S BY APRIL 30. 2000. OR YOU WILL BE SUED IN COURT. the termination date of the installment Sales Agreement is hereby established as April 30, 2000. If you fail to vacate the premises by this date, Mr. Jamieson will enforce his rights by filing a Complaint in the Cumberland County Court of Common Pleas. Please be advised that if Mr. Jamieson is forced to take legal aciion against you, he will be entitled to take possession of the property, recovery of damages in the amount of all installment payments which are currently in default, and payment by you of all legal fees. Please be advised that Mr. Jamieson will be enforcing his rights in their entirety if he is forced to take legal action against you. Please contact me directly if you have any questions regarding this matter. Very truly yours, mmb:133019.2 12070-1 cc: Samuel E. Jamieson Sent VIA U.S. Certified Mail. No. Z 200 146477 JOHNSON, DUFFIE, STEWART & WEIDNER ~C \ .-~~ ~. .. " 1ii Cl Complete items 1 and/or 2 for additional services. QJ Complete items 3, 4a, and 4b. r! C Prin\Y.l)urnamltand address on1he reverse of this fann so thai we can relum this.. ~ card to you. ! C Attach this form to the front of the mailpiece, or on the back if space does not G) permit. :5 CI Write "Return Receipt Requested" on the mailpiece below the article number. c CI The Return Receipt will show to whom the article was delivered and the date o delivered. i 3. Article Addressed to: li. e. E o " SENDER: ~t.(\c.\Q \.... L.\~~""G." tan ~a.,,'n~~ ~a.Q w~ Cll~ \a."<i 1 pC>. l'lDID er 1994 "'.'-." \, I also wish to receive the follow~ ing services (for an extra fee): 1. 0 Addressee's Address 2. 0 Restricted Delivery 4a. Article Number z. Lea \ '-\ ~ \.\11 4b. Service Type o Registered o Express Mail o Return Receipt for Merchandise ~rtified o Insured o COD 7. Date of Delivery -S ~:t 8. Addressee's Address (Only if requested and fee is paid) " '>" ~L +1 ! .,; " ;;; Ii; Ul a a; " .. a: " ~ .. li a: '" " ~ I .E [I ~I ~ i I I 102595-99.8.0223 Domestic Return Receipt "I , ~~"j IERR Y R DUFFIE RICHARD W. STEWART C. ROY WEIDNER JR EDMUND G. MYERs DAVID W. DELUCE RALPH H. WRIGHT, JR DAVID J. LANZA MARK C. DUFFIE. KEIRSTEN WALSH DAVIDSON MICHAEL J. CASSIDY LAW OFFICES JOHNSON, DUFFIE, STEWART & WEIDNER A Professional Corporation 301 MARKET STREET P. O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WEBSITE: www.jdsw.com HORACE A JOHNSON OF COUNSEL TELEPHONE 717-761-4510 FACSIMILE 717-761-3015 E.MAIL mail@jdsw.com WRITER'S EXT. NO. 38 E.MAIL mje@jdsw.com March 28, 2000 Randy S. Zimmerman 1017 Swath more Road New Cumberland, 'PA 17070 Re: Termination Notice FILE COpy Dear Randy: Please be advised that we represent Mr. Samuel E. Jamieson with respect to the Installment Sales Agreement dated September 12, 1991, for the property which you now occupy at 1017 Swathmore Road, New Cumberland. Under the Installment Sales Agreement, you are required to make equal monthly installments of $657.37 to Mr. Jamieson. According to my client, you have failed to make any monthly payments since September 1997. Failure to make timely payment each month constitutes a breach of the Installment Sales Agreement. Under the Agreement, Mr. Jamieson is entitled to terminate the Installment Sales Agreement in the event of breach or default by the purchasers. Mr. Jamieson sent an initial Notice of Termination on or about November 22, 1999, in accordance with the requirements set forth in the Installment Sales Agreement. This letter serves as a second and final Notice of Termination. YOU MUST VACATE THE PREMISES BY APRIL 30. 2000. OR YOU WILL BE SUED IN COURT. The termination date ofthe Installment Sales Agreement is hereby established as April 30, 2000. If you fail to vacate the premises by this date, Mr. Jamieson will enforce his rights by filing a Complaint in the Cumberland County Court of Common Pleas. Please be advised that if Mr. Jamieson is forced to take legal action against you, he will be entitled to take possession of the property, recovery of damages in the amount of all installment payments which are currently in default, and payment by you of all legal fees. Please be advised that Mr. Jamieson will be enforcing his rights in their entirety if he is forced to take legal action against you. Please contact me directly if you have any questions regarding this matter. Very truly yours, mmb:133019.1 12070-1 cc: Samuel E. Jamieson Sent VIA U.S. Certified Mail. No. Z 200 146476 JOHNSON, DUFFIE, STEWART & WEIDNER ~(i' o Complete items 1 and/or 2 for additional services. Complete items 3, 4a, and 4b. o Print your name and address on ilie reverse of this form so that we can return this card to yoU: D Attach this form to the front of the mailpiece, or on the back if space does not permit. [J Write "Return Receipt Requested" on the mailpiece b~low the article number. Dine Return Receipt will snow to whom \he article was delivered and \he date delivered. 3. Article Addressed to: ~ ~. .. " Vi .. l/! ~ S1l'l'\f ~U SENDER: e.Qnd'-ts 'i>.L\~~" IOn ~o.t.{-,~e. tDo.d ~ C:u~\C\ro,~ 1'lCS1C) '", I also wish to receive the follow- ing services (for an extra fee): 1. 0 Addressee's Address 2. 0 Restricted Delivery 4a. Article Number L 200\\.\\.Jl \.\1\.1> 4b. Service Type ,:. 0 Registered o Express Mail o Return Receipt for Merchandise ~ertified o Insured DeaD 7. Date of Delivery '3 -.2q 8. Addressee's Address (Only if requested and fee is paid) 102595-99-8..Q223 Domestic Return Receipt -,!;J' I / l .; <J 'i: .. III 15. a; <J .. a: 1\ ",' .S[ ... ~ ~ .2 ~ g. ... c .. .c .... ~~ - ..liIlil'il1<llij;-~_&~\lli.i'",'~>"":,!_h,,,"'~_","':I...hbi)!i,,-~,,,,,~ ",1!;i~~~idltr""'''''''''''''' h"""......~ "_~,Jliololii~:I <~. ~~. . j ~ ~ ~~ ~~ ......... -".'-j I ~ J @ ~\I~~ v- \ v.. <::y \:' 0 (~ () c: c:> $-= -1'1 -0 f-~~i ~;, ~:::J r1'\ ~z. :..-l! ."~.:: .. ::G L':. C , .-.., rn (r; \D ''-j Q _c/ -=.~ ~"'D --~ c::) ~~i -;', ~,-'- -'n .- - (") -j:" r;:- ej rn C:J :_i-;! (,J ::n ~~ . "",.....~~- "~ . , , ~"""1 ( ... " ':l SHERIFF'S RETURN - REGULAR CASE NO: 2000-03135 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND JAMIESON SAMUEL E VS ZIMMERMAN RANDY S ET AL HAROLD WEARY , Sheriff or Deputy Sheriff of Cumberland County, pensylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon ZIMMERMAN RANDY S the DEFENDANT , at 0019:53 HOURS, on the 25th day of May 2000 at 1017 SWARTHMORE ROAD NEW CUMBERLAND, PA 17070 by handing to RANDY S. ZIMMERMAN a true and attested copy of COMPLAINT - EJECTMENT together with NOTICE and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 9.30 .00 10.00 .00 37.30 So Answers: r~~J~~ R. Thomas Kline OS/26/2000 JOHNSON, DUFFIE, STEWART Sworn and Subscribed to before By: ~~~ tJ-G'< 7 Deputy S eriff me this .'}""'"^ day of q,,,. ,2.inJO A.D. 9ii:: (;I. )nJQ(}~.. 'l~;; othonotary J . , . ..... SHERIFF'S RETURN - REGULAR CASE NO: 2000-03135 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND JAMIESON SAMUEL E VS ZIMMERMAN RANDY S ET AL HAROLD WEARY , Sheriff or Deputy Sheriff of Cumberland County, Pensylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon ZIMMERMAN PATRICIA L the DEFENDANT , at 0019:53 HOURS, on the 25th day of May , 2000 at 1017 SWARTHMORE ROAD NEW CUMBERLAND, PA 17070 by handing to RANDY S. ZIMMERMAN a true and attested copy of COMPLAINT - EJECTMENT together with NOTICE and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So Answers: r~ 't-<~~~ R. Thomas Kline OS/26/2000 JOHNSON, DUFFIE, STEWART Sworn and Subscribed to before By: /&~e&~ me this ,J ~ day of 0,,-,--, J-o-vv A.D. ~ Q.~ il~~ Prothonotary "~~-IIIj_'~"""""~ ~ ~ ~ ;I"""..mci , . Johnson, Duffie, Stewart & Weidner By: Michael J. Cassidy LD. No. 82164 301 Market Street P. O. Box 109 Lernoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff AUG 28 {~ '" SAMUEL E. JAMIESON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2000-3135 Civil v. CIVIL ACTION - IN EJECTMENT RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, Defendants PRETRIAL MEMORANDUM PURSUANT TO LOCAL RULE NO. 212-4 AND NOW, this Z5/J,day of August 2000, comes Plaintiff, SAMUEL E. JAMIESON, by and through his undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and files this Pretrial Memorandum pursuant to Local Rule 212-4, and states as follows: I. STATEMENT OF THE FACTS AS TO LIABILITY During 1991, Defendants Randy and Patricia Zimmerman, who were husband and wife at that time, were attempting to purchase a new home in New Cumberland, Cumberland County, Pennsylvania. Defendants signed a Sales Agreement to purchase 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, and made a Two Thousand Dollar ($2,000.00) cash deposit on the property. However, Defendants could not qualify for financing of the home. Plaintiff, Samuel E. Jamieson, and his wife, Nancy Jamieson, deceased, agreed to purchase the subject property and, in turn, arrange for Defendants to purchase the home from Plaintiff and his wife by way of an installment sales agreement. Defendants assigned their rights under the Sales Agreement to Samuel E. Jamieson and Nancy J. Jamieson. Settlement on the property took place on September 12, 1991. Plaintiff and his wife paid Seventy Thousand Twelve Dollars and 71/100 ($70,012.71) cash at settlement. The cash used to purchase the property was money saved by Plaintiff for his retirement. This cash transaction is reflected on the HUD- 1 Settlement Sheet, which is signed by Plaintiff and his wife. 1 .- 1.'_1 ~"' ~~l I>' < Immediately upon purchasing the property, Plaintiff and his wife agreed to allow Defendants to reside at the property pursuant to an Installment Sales Agreement. Defendant Randy Zimmerman refused to sign the Installment Sales Agreement. Patricia Zimmerman, Plaintiff's daughter, did sign the Installment Sales Agreement. The ISA called for a total cash purchase price of $62,500.00, to be paid in equal successive monthly installments of $657.37 on the same day of each month. A 9.5% per annum interest rate was applied to the unpaid portion of the installment principal balance. Furthermore, Defendants were responsible for payment of real estate taxes, water and sewer rentals, fire insurance, liability insurance, and repairs. The ISA further provides that if Defendants fail to pay any monthly installment when due, Plaintiff may terminate the Agreement and bring an action at law or in equity to recover damages for all losses resulting from the breach of the ISA and/or recover possession of the property. Defendants have resided at the property since September 1991. Defendants have failed and refused to pay any monthly installments since September 12, 1997. II. STATEMENT OF THE BASIC FACTS AS TO DAMAGES As to this action in ejectment, Plaintiff seeks recovery of possession of the property as well as loss of income. Defendants have failed to make any payment under the ISA since September 12, 1997. Thus, Plaintiff is entitled to recover possession of the property under the terms of the Installment Sales Agreement. Also, Plaintiff seeks recovery for loss of income from rental payments for the approximately thirty-six (36) month period during which Defendants have occupied the property without making any payments under the ISA. Plaintiff is entitled to $23,665.32 (36 months x $657.37 per month) plus interest and penalties. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES Plaintiff contends that this is an incontrovertible case and there are no issues of liability or damages. Nonetheless, Defendants have filed three (3) counterclaims in the form of New Matter. Count I of Defendants' "affirmative defense" Glaims Plaintiff committed fraud. Count II claims Plaintiff was unjustly enriGhed to the extent that Defendant Randy Zimmerman provided a down payment for the purchase of the subject property. Count III claims Plaintiff should be estopped from ejecting Defendants from the property 2 - \~a , / I . since Defendants allegedly made valuable, lasting improvements to the property. IV. ADMISSIBILITY OF EVIDENCE There currently are no legal issues pending regarding the admissibility of any testimony, any exhibits, or any other matter. V. IDENTITY OF WITNESSES TO BE CALLED A. Samuel E. Jamieson - Plaintiff. B. Stephanie Boyd - Plaintiff's daughter; part-time real estate agent who broke red the sale of 1017 Swarthmore Road, New Cumberland, Pennsylvania. VI. LIST OF PLAINTIFF'S EXHIBITS A. HUD-1 Settlement Sheet for purchase of 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12,1991. B. Agreement for the Sale and Purchase of Real Estate for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated August 29, 1991. C. Deed for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12, 1997, and recorded In Cumberland County Recorder of Deeds Book H, Volume 35, Page 773. D. Installment Sales Agreement for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, dated September 12, 1991, between Samuel E. and Nancy J. Jamieson and Randy S. and Patricia L. Zimmerman. E. Termination Letter dated November 19, 1999, from Samuel E. Jamieson to Patricia Zimmerman and Randy Zimmerman. F. Final Termination Notice dated March 28, 2000, to Patricia L. Zimmerman. G. Final Termination Notice dated March 28, 2000, to Randy S. Zimmerman. 3 , II. :137574 "'.,d~;;'i' VII. CURRENT STA TUS OF SETTLEMENT NEGOTIA nONS The parties to the above-captioned lawsuit have been unable to negotiate a settlement. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Micha J. assidy Attor e .0. No. 82164 301 arket Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff 4 -"',"'~ L'~.ti.-' ,. CERTIFICA TE OF SERVICE AND NOW, this 25" it. day of August 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing PRETRIAL MEMORANDUM upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Keith B. DeArmond, Esquire DeARMOND & DeARMOND 2800 Market Street Camp Hill, PA 17011 JOHNSON, DUFFIE, STEWART & WEIDNER " BY:~ Mich I J - ..... SAMUEL E. JAMIESON, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-IN EJECTMENT RANDY S. ZIMMERMAN and PATRICIA L. ZIMMERMAN, Defendants NO. 00-3135 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of August, 2000, this matter having been called for a hearing on a complaint by plaintiff to eject defendants from 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania, and the parties having reached a settlement of this dispute, IT IS ORDERED: 1. Judgment in ejectment is entered in favor of plaintiff, Samuel E. Jamieson, against defendants, Randy S. Zimmerman and Patricia L. Zimmerman for 1017 Swarthmore Road, New Cumberland, Cumberland County, Pennsylvania. 2. Plaintiff will delay execution on the judgment as long as a commitment letter from a financial institution is issued by November 1, 2000, to finance the purchase of said property by defendants in the amount of $68,000.00, with defendants paying all closing costs. 3. If a commitment letter has been issued by November 1, 2000, execution will be further delayed as long as there is settlement not later than December 1, 2000. 4. If defendants do not purchase the property and plaintiffs retake possession, defendants shall be liable to plaintiff for any damages to the property over normal wear and tear. 5. Plaintiff foregoes his claim for any past rentals due him from defendants. ~ ..... Michael J. Cassidy, Esquire For Plaintiff Keith B. DeArmond, Esquire For Defendants prs "\. J. ~ ~ 1}.).()1) '-j-'" - Ii I', " I~ I' ii, II Ii i: 1I ~~!Lf:D-Oi'~HCE .--'-.'-"-, .:{}<Olf\RY 00 t:l..J~ 3 J Pt~112: h 5 CUMbi:i-([j:.!\D CCJUNTY PENNSYL\I,\NI,,I, . -- ,1 , I ,'I: