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HomeMy WebLinkAbout07-0940IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17315 Defendant CIVIL ACTION - LAW NO. 2006 CV v7-9416 C ? to? NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de a stas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus ob.eciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la petici6n de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL D1NERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELFFONO A LA OFICINA CUY A DIRECCI6N SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, Pennsylvania 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17319 Defendant CIVIL ACTION -LAW r/ yo ? le, COMPLAINT Plaintiff, Margaret Siler, by and through her attorneys, Nichole M. Walters, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of The Pennsylvania State University state the following in support of this Complaint: STATEMENT OF FACTS 1. Plaintiff, Margaret Siler is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendants are Eric Siler, plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319 3. Prior to May 23rd, 2005, plaintiff was the sole owner of the residence located at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, (hereafter 3 "the residence") as evidenced by the deed dated March 1972, and recorded in the office of the Recorder of Deeds of Cumberland County in Deed Book 24N page 920. A true and correct copy of the deed is attached hereto and incorporated herein by reference as Exhibit "A." 4. Margaret Siler is currently 84 years old and is a widow with five adult children. 5. On May 23rd, 2005, plaintiff executed a deed conveying to defendants her residence at 56 Oak Avenue Camp Hill, Pennsylvania 17011 in consideration for $1.00 together with defendants' promise to move into the residence and care for plaintiff. 6. Defendants also promised to repair the residence and to keep the residence maintained in a reasonable fashion. 7. The conveyance was recorded on June 90, 2005 in the office of the Recorder of Deeds of Cumberland County in Deed Book No. 269, page 1534. The deed purports to be an absolute conveyance of the premises to defendants. A true and correct copy of the May 23, 2005 deed is attached hereto and incorporated herein by reference as Exhibit "B." 8. The deed, while in the form of a deed of gift, was, in fact, intended by plaintiff to be transferred as consideration for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence. 9. Although defendants accepted title to the residence they have not fulfilled their promises to plaintiff to repair and maintain her home and move into the residence and care for plaintiff. 4 10. Due to her physical condition, Plaintiff is dependant on the care of her children. Plaintiff has had a knee operation, two hip operations and was in therapy for her back and as a result has limited ambulation without assistance. 11. Plaintiff cannot drive and therefore, she relies on others to take her to doctor appointments, shopping and to the pharmacy. 12. Plaintiff is unable to perform routine household chores such as cooking, cleaning and laundry. 13. In September, 2006, plaintiff asked defendants to reconvey the property to plaintiff so that she could repair the roof and the furnace because she was without heat. Defendants refused. 14. Plaintiff never intended to move out of her home when completing the above mentioned conveyance but as a result of defendants breach of their obligations to plaintiff, may need to move to a place where care and assistance are available. COUNT I - UNDUE INFLUENCE 15. Paragraphs 1 through 14 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 16. There was a confidential relationship between defendants and plaintiff. 17. Defendants received a substantial benefit by acquiring title to the residence without giving valuable consideration. 18. Although Plaintiff may have possessed the requisite testamentary capacity on May 23, 2005, her weakened intellect and trust in family members made her susceptible to undue influence and manipulation by family members. 5 WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT II - FRAUD 19. Paragraphs 1 through 18 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length 20. The conveyance was without valuable consideration as the recited consideration of one dollar was merely formal and not actually exchanged. 21. Defendants' promises to care for plaintiff and repair her home were inducements for the conveyance without which the conveyance would not have been made. 22. Defendants procured the execution of the deed by fraud by inducing Plaintiff to convey the residence with no intention of honoring the agreement. The 6 defendants now maintain control over and have title to the property described therein as the fruit of such fraud. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT III - BREACH OF CONTRACT 23. Paragraphs 1 through 22 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 24. Defendants orally promised to care for plaintiff and repair her home as consideration for plaintiff conveying the home to the defendants. 7 25. Defendants have failed to fulfill their obligations under the agreement between Plaintiff and Defendants 26. Defendants did not move into the residence. 27. Defendants are not providing care for the plaintiff. 28. Defendants refuse to maintain the residence and repair the furnace and roof. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action. Respectfully Submitted, Dated: 2. U -7 Nichole M. Walters Supreme Court No. 84478 Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 9 VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: 1 5 VMargaret Si *r 10 granaors a!o hereby eraint and convey to the said grantee s ..their • . ' heirs and crssib ns, ALL that certain lot or tract of land situate in the Township of,Hampd3n, County of Cumberland and State of Pennsylvania, more particularly bounded and ' described as follows, to wit.- BEGINNING at a point on the westerly line of Oak ;. f Avenue , said point being at a distance of one hundred ninety-six (196) feet measured in a northerly direction along said Oak Avenue from the northerly line of. Trindle Road r ; thence in westerly' f direction along Lot No: 13, Block "S", on the Plan of Lots hereinafter Men one hundred fifty (150) feet to a point; thence in a northerly direction along Lot No. 5, Block."S", on said P : lan, fifty (50) feet to a point;, thence in an easterly direction along Lot No. 15, Block "S", on said Plan, one hundred fifty (l50) feet ? to a point on the westerly line of Oak Avenue; thence along-Oak Avenue, in a southerly direction fifty (50) feet to a point, the Place of BEGINNING, BEING Lot No. - - ? ?" 14,, Block n3u, on the Plan of Oakwood Park, as laid out by th i Pennsylvania Realty 6c Development Company, which Plan of Lots is recorded in the Offi6e for the recording'of deeds, etc., in and for Cumberland County, pennyylvania in Plan$ook 2 ', Page 59. HAVING TIiEREON . ERECTED a one-story stucco dwelling house known and numbered as 56 Oak Avenue. DOOKW24PAGE 920 EXNIBR L BEING the same premises which John G. Wiestling, widower t 1 his the 28th day of November, 1961, and recorded in the office of h deed of I3oeds in and for Cumberland Count - he Recorder Y, Pennsylvania, in Deed Book 'rJVol. 20 Page 793, granted and. conveyed unto Marie Williams Bell, of the Grantors The said John G. Wie'stling'died on Februa herein. .. ?"' r3' 26, 1972. rewashlP of /=z ....' Curnb. Co., Pa.. •' S*6ol MO. Curnb, Co., P. );% %.al 4wat. Traaafar T.r I % Real w.te Tranaf.r Tar Date An,f?rs? -?..2 Y•7LA(tT.SU •.? .. o.t..y v Col..?gt. ?-? :.•rh. -Co. IOiaf. Col,. Agty '?•I? .,??, S ,•• , ^1 CAA I?i ? "titer-/.?...a.•(u. 1t ? , '?!`?1???i1?'yjit ??C.., 13•??/'l,?r? ?' f i'? :r.:...711?.'.?n1...+.1 ,. ,... C?D? ?rn oA • lit `?7. ?y.(•'P , ' ' ? f_?11 /4yr2 ??I?1.; ,xra-,,, t^•s "amino • .. I "` 777 i .. I iN - - BQGK/Y 24PAGE 921 ! I . • Y (?ammanms<<!t of snlia lbani eCrallltt?f"D??_r??i.c3?,P?AV,a r8?. - . Ott this, the 4 / J day of 1972 , b%re nce a Notary Public in and for said County and State, the undersigned officer, personally appeared MARIE WILLIAMS BELL and THOMAS F. BELL, her husband, (or satisfactorily proven) to be the person s whose name 3 " are subscribed to the within .', =t?skfr#onie4-4` and acknowledged that they executed the same for the purpo therein contained. I.V ;Vj;%'XESS W'IIIs'RA70F, I have hereunt set r hand n! and Offi i seal. :ti' G,r??.?PIFAOM. Not.?r71'ubUo ? ?v'.`?c? C, Co m fy w:pdrN Iay 2 i, 1973 . '• •,! j- 13f1ISa11 vegiltll of ,' 4111111irt?b?[lliia ) d?vsillt o } O. On this, the day of 19 before ine the undersigned offices, personally appeared' known to ne(orsatisfaetorily proven) to be the person whose nance subscribed to the within tnstruncent, and acknowledged that he executed the sane for the purpose therein contained. LY N°IT MESS if'II171LOI; I have hereunto set my hand and seal. N 71 ?lert6ig (?Crfxfi4 that the precise address of the grantee hereilt is r o4 Y hve 3A7/7 2 CA 14; 1/ 4 89CKWI4rw 922 ?/,.- 4 .N ?_Oq / ? X Tax Parcel No. 10-21-0277-316 THIS DEED, MADE THIS o? 3 day of 12? , in the year of our Lord two thousand and five (2005) ? , N h a Grantor C-> E° rn m ? C> M "XI and ERIC A. SILER and HEATHER A. SILER, co r= rn husband and wife, 7° ;v 3 r Grantees: N - -n ?-, WITNESSETH, that in consideration of ONE DOLLAR ($1.00), in hand pfd, the receipt whereof is hereby acknowledged, the said grantor does hereby grant and convey to the said grantees, their heirs or assigns, BETWEEN MARGARET E. SILER widow ALL THAT CERTAIN lot or tract of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the westerly line of Oak Avenue, said point being at a distance of 196 feet measured in a northerly direction along said Oak Avenue from the northerly line of Trindle Road; thence in a westerly direction along Lot No. 13, Block "S", on the Plan of Lots hereinafter mentioned, 150 feet to a point; thence in a northerly direction along Lot No. 5, Block "S", on said Plan, 50 feet to a point; thence in an easterly direction along Lot No. 15, Block "S", on said Plan, 150 feet to a point on the westerly line of Oak Avenue; thence along Oak Avenue, in a southerly direction 50 feet to a point, the Place of BEGINNING. BEING Lot No. 14, Block "S", on the Plan of Oakwood Park, as laid out by the Pennsylvania Realty & Development Company, which Plan of Lots is recorded in the Office for the recording of deeds, etc., in and for Cumberland County, Pennsylvania, in Plan Book 2, Page 59. ft on Nft&M EXHIBIT HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered as 56 Oak Avenue. BEING the same premises Marie Williams Bell and Thomas F. Bell, her husband, by deed dated March 6, 1972, and recorded March 28, 1972 in the Recorder's Office in and for Cumberland County, Pennsylvania, in Deed Book "N", Vol. 24, Page 920, conveyed unto Edward H. Siler and Margaret E. Siler, his wife. And the said Edward H. Siler died July 3, 1991 whereby sole title to said premises became vested in Margaret E. Siler, by virtue of the doctrine of survivorship incident to tenancies by the entireties, Grantor herein. THIS TRANSFER IS WHOLLY EXEMPT FROM REALTY TRANSFER TAX BECAUSE IT IS A TRANSFER FROM MOTHER TO SON AND DAUGHTER- IN-LAW. TOGETHER with all and singular, the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances, to the same belonging, or in anywise appertaining and reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof; And also, all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, of the said parties of the first part, of, in, to or out of the said premises, and every part and parcel thereof, with the appurtenances: TO HAVE AND TO HOLD, the said premises, with and singular the appurtenances, unto the said party of the second part, her heirs and assigns, to and for the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever. AND the said grantor hereby covenants and agrees that she will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said grantor has hereunto set her hand and seal the day and year first above written. Signed, Sealed and Delivered the Presenc } Margaret E. Sil } ) AM PACFi'S36 Commonwealth of Pennsylvania ) County of Cumberland ) ss. On this, the day of /»e-z; , 2005, before me, the undersigned officer, personally appeared Margaret E. Siler, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ?6// Notary Public Notarial Seal Anne Carmody. Notry Public Mechanicsburg Boro, Ci nbarlend C VU* My Commission Expires Expires Mar. 11, 2006 I do hereby certify that the precise residence and complete post office address of the within named grantees is 56 Oak Avenue, Camp Hill, PA 17021. a3 2005 Attorney for "J&" COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ss. RECORDED on this day of , A.D. 20_, in the Recorder's Office of the said County, Deed Book , Vol. , Page Given under my hand and the seal of the said ° h d tv above written. driy this to be recorded In Cumberland County PA Recorder. i , 0-00 269 PPr.1536 1 ` " .? ?1 A •? ??` \i w V ra n =•.? C. ?: ? '"t'1 ?, ?`;.- ?1 f ?? ? °? N F) ?- ?,_ ?:. T .+? ? ...^ ?:. ?- ?_ r ?? -- -n -?{ -*? t? ? ? ?l '/w, _?`- ?,' J ?-??? -?`? IN THE COURT OF COMMON PLEAS, DAUPHIN COUNTY, PENNSYLVANIA MARGARET SILER Plaintiff V. ERIC SILER HEATHER SILER Defendants CIVIL ACTION - LAW NO. 0 7- Q q 6 (2t vc.l, ` i2)''? PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Please index the above-captioned action as a lis pendens against the following real property: 56 Oak Avenue, Camp Hill, Pennsylvania 17011. I hereby certify that this action affects title to or other interest in the above-described real property. Respectfully submitted, Trisha Cowart Certified Legal Intern ku? ri(1 D'n'1- Ca Nichole M. Walters Supreme Court No. 844780 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013-2899 (717) 240-5152 Dated: t) I a t0 -7 xi- 49 ^) V w ?J Cl) s C3 n C ? O -r? :? 1 Philip M. Intrieri & Associates Attomey at Law 615 North 4$"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. 1. D.: 76117 MARGARET E. SILER IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA Plaintiff vs : CIVIL ACTION: LAW ERIC A. SILER HEATHER A. SILER Defendants : No. 2007 940 - Civil Term PRAECIPE TO ENTER APPEARANCE To: The Honorable, Prothonotary of Cumberland County: Please enter my appearance in the above-captioned matter on behalf of DEFENDANTS, ERIC A. SILER, and HEATHER A. SILER. 3?9?7 Date PMI/sai Philip M. Intrieri, Esq. Attorney at Law cc: Nichole M. Walters, Esq. v ? ? ?? ? ??x ?? ? ?? ...r INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Pa. Attomey I.D. 76117 PMILaw@verizon.net MARGARET E. SILER IN THE COURT OF COMMON PLEAS CUMBERLAND CO, PENNSYLVANIA Plaintiff V. ERIC A. SILER HEATHER A. SILER CIVIL ACTION: LAW Defendants . No. 07 - 940 CIVIL TERM NOTICE TO DEFEND/PLEAD TO: MARGARET A. SILER: YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the defendants. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 l+ Philip M. Intrieri & Associates Attorney at Law 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. 1. D.: 76117 MARGARET SILER IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA Plaintiff vs CIVIL ACTION: LAW ERIC A. SILER HEATHER A. SILER Defendants : No. 07- 940 CIVIL TERM ANSWER WITH NEW MATTER AND COUNTERCLAIMS AND NOW, come Defendants, Eric and Heather Siler, by and through their attorney, Philip M. Intrieri, Esq., who files this Answer with New Matter and Counterclaims, and in support thereof avers as follows: 1. Admitted. 2. Admitted with clarification. The actual address of Eric Siler and his wife Heather is 413 Mountain View Terrace, Dover, PA, 17315. 3. Admitted. 4. Admitted. 5. Admitted in part. It is admitted that Margaret Siler executed a deed conveying real property located at 56 Oak Avenue, Camp Hill, PA to her son and daughter in law, defendants in this action. It is denied the conveyance was in return for defendant's promise to move into the residence and care for plaintiff. The transaction was a gift. 6. Denied. It is denied the defendants made any express promise, covenant or contract to repair and maintain the residence. 7. Admitted. The deed document speaks for itself and is in fact an absolute conveyance of the property to defendants. 8. Denied. While it is true the transaction was a gift, the deed is in reality a special warranty deed. It is denied the property was transferred in consideration of any express or implied contract to move in with plaintiff, care for plaintiff, or maintain/repair the residence. 9. Admitted in part. It is admitted the defendants have accepted title to the property. It is denied that defendants made any speck promises to move in with plaintiff, care for plaintiff, or maintain/repair the home. 10-11. Admitted. 12. Denied. Plaintiff is able to perform minor and low impact household chores. 2. 13. Admitted in part. It is admitted that at some point, plaintiff requested defendants reconvey the property to her, and defendants declined. It is denied she stated the basis for her request was roof or furnace repair, inasmuch as defendant Eric Siler did repair the roof, and did remove debris around, and changed a fully blocked filter in the furnace, which were preventing the furnace from properly ventilating. It is denied the plaintiff was without heat; the unit in place at that time, while aged, was functioning. 14. Admitted in part. It is admitted plaintiff likely intended to remain in the home. It is denied defendants breached any obligation to plaintiff, since there was and is no legal obligation of care and assistance created by the real estate transfer chargeable to defendants. Further, adequate family arrangements are fully in place to provide for plaintiffs care. 15. No answer required. 16. Admitted in part. It is admitted the parties have a relationship of parent to son and daughter in law. It is denied the mere existence of kinship gave rise to any situation of unfair advantage or overmastering influence. 17. Admitted with clarification. Consideration is not required to make a valid gift. 18. Admitted in part. The plaintiff did possess the requisite testamentary capacity on May 23, 2005, and further possessed the proper mental capacity to make a valid gift. It is denied that she acted under any form of diminished capacity, whether that be characterized as "weakened intellect and trust", or "susceptible to undue influence and manipulation", as those terms of art are legally understood and cognizable. 3. 19. No answer required. 20. Admitted with clarification. Consideration is not a required element of a valid gift. Further the deed, as a document under seal, is valid without consideration. 21. Denied. Inasmuch as the defendants never made any express statements or promises to care for plaintiff or repair the property, such statements could not have formed an inducement for the plaintiff to convey the property to defendants. 22. Admitted in part. It is admitted that defendants have title to the property and intend to maintain overall control of their property. It is denied their ownership springs from fraud of any kind. Further, to the extent this averment constitutes a legal conclusion, no answer is required. 23. No answer required. 24. Denied. The defendants made no oral promise to care for the plaintiff and repair the home as consideration for the conveyance. 25. Denied. While there are often discussions among the plaintiff and her children regarding her care and maintenance of the property, such discussions do not and did not rise to the requisite level of specificity or a concurrent meeting of the minds of both parties as regards to detail, required to form a legally binding oral agreement or contract. Since no agreement was formed, no obligations can arise. 26. Admitted. 4. 27. Denied. Defendants have assisted in providing care for the plaintiff, as do all siblings who reside in this area. 28. Admitted in part. Defendants share responsibilities with the plaintiff, and other siblings to maintain the residence, and as such do not wholly shoulder every routine maintenance task. It is denied defendants failed to repair the furnace and roof, inasmuch as they had no legal obligation to do so, and inasmuch as defendant Eric Siler did in fact make roof repairs, furnishing materials valued at some $800, and labor, and did in fact ensure the furnace was ventilating properly. If further problems existed with the furnace, none were called to the attention of defendants. NEW MATTER 29. Defendants incorporate their responses to paragraphs 1 through 28 as if they were set forth in full. GIFT 30. The transfer of the real property in question was a gift from plaintiff to her son and daughter in law. 31. The plaintiff possessed the proper mental capacity to make a gift. 32. The plaintiff expressed the intent to give defendants the real property, in that she initiated the idea approximately two months prior to the transfer, attended a meeting with attorney R. Mark Thomas on May 23, 2005 regarding the gift, and signed and executed the deed granting the property to defendants. 5. 33. The plaintiff delivered the gifted property, as evidenced by the delivery of the deed. Prior to such delivery, she also had provided the defendants with the key to the house. 34. The defendants accepted the gift. 35. Attorney Thomas explained to the plaintiff she was making a gift of real property. See: Defendant's Exhibit 1, Memorandum of Attorney R. Mark Thomas dated 3/13/2007. 36. Attorney Thomas explained to the defendants they were accepting a gift of real property, and further, had defendants sign an acknowledgement that they were receiving a gift to ensure they were aware of their liability for substantial capital gains tax if defendants later sold the property. See: Defendant's Exhibit 2, Acknowledgment of Eric Siler dated 5/23/2005. 37. The plaintiff was present for the signing of this acknowledgment and heard and understood the basis for presenting it was to explain the tax consequences of a gift as opposed to inheritance. 38. Attorney Thomas states that on May 23, 2005, Margaret Siler's intention to transfer the property was clear, and that there was nothing in her demeanor that would have caused him to question that intent, and further, that there was no mention of any [side] agreement other than Mrs. Siler's plans to continue to live at the property. See: Defendant's Exhibit 1. 39. WHEREFORE, since the actions of the plaintiff meet all the required elements to render a gift of property, defendants pray This Honorable Court dismiss the instant complaint with prejudice. 6. NO BREACH OF CONTRACT 40. The plaintiff claims defendants promised to care for plaintiff, move into the home, and maintain the residence in return for their receipt of title to the property. 41. The plaintiff does not have and can not produce any writing evidencing the existence of an agreement. 42. The plaintiff provides no detailed facts regarding the alleged oral agreement, including but not limited to how long such care would last, what form such care would take, ie., nursing home care, hospice care, when the defendants were to move in to the residence, and how the terms maintenance/repair were to be defined, and whether they included household chores, major painting and flooring, or the construction of an addition. 43. An alleged agreement which is so vague in nature is illusory and can not be enforced. 44. Mere discussion, preparation, or hope in anticipation of a possible contract, even if proven, will not by itself demonstrate the existence of a legally binding contract, since the parties will not have reached the requisite and final meeting of the minds necessary to form a valid agreement. 45. Since the plaintiff can not show the existence of an agreement with terms the defendants fully and freely accepted, plaintiff has failed to show the contractual elements necessary to support the existence of a contract, and therefore there was nothing for the defendants to breach. 7. 46. WHEREFORE, defendants pray This Honorable Court dismiss Count III of plaintiff's complaint with prejudice. In the alternative, should This Honorable Court find that an enforceable agreement did exist between plaintiff and defendants, defendants pray the Court allow a reasonable period of time to cure the breach. NO FRAUD OR UNDUE INFLUENCE 47. Evidence of fraud must be clear, precise and convincing. 48. The defendants made no false statements or misrepresentations to plaintiff regarding her care, moving in, or the repair/maintenance of the property. 49. Because no false statements were made to plaintiff, plaintiff could not form a basis for reliance on such statements. 50. If the conveyance of the real property was dependent on the fulfillment of any future conditions or promises, committed to or made by defendants, the plaintiff could have placed the deed in escrow until such conditions were completed. The plaintiff did not escrow the deed. 51. The transfer of the real property was voluntary in nature and not accomplished through persuasion or pressure by the defendants so significant that plaintiff's free will was overpowered. 52. The defendants do not reside with plaintiff, and consequently do not have the means and opportunity to apply constant pressure, undue persuasion, or overpowering influence to plaintiff. 8. 53. The plaintiff, in executing the deed, acted intelligently with knowledge of the consequences, since the attorney who handled the transfer, R. Mark Thomas, did advise plaintiff that she was making a gift. 54. The defendants accepted the gift in good faith, in an arm's length transaction. 55. The plaintiff also did not appear to attorney Thomas to be acting under undue pressure or influence. 56. The plaintiff has not met the legal requirements necessary to make a case for fraud, nor undue influence sufficient to justify rescission of the deed. 57. WHEREFORE, defendants pray This Honorable Court dismiss Counts I and II of plaintiff's complaint, with prejudice. AFFIRMATIVE DEFENSE : ESTOPPEL 58. The defendants, as a result of receiving the gift of real property from defendant, and acting in good faith reliance thereon, have been induced to substantially change position and suffered legal detriment, including payment of property taxes, making repairs to the roof, clearing debris from the basement, allowing family members to reside in the home free of rent, and, by holding title, accepting responsibility for any liability which may arise on the premises. 59. The plaintiff has profited by the acts of defendants, inasmuch as she accepted the above-listed benefits which arose from her discharge of the burden of ownership of the property. 9. 60. The plaintiff, even after filing the instant matter on February 20, 2007, continued to acknowledge and accept benefits from defendant's ownership of the property by forwarding the latest property tax bill to defendants for payment. Defendants paid this bill. 61. The plaintiff, through her own actions, in making a gift, accepting the benefits, and being fully aware of defendant's reliance on the gift and defendant's motivation to act to their prejudice by her conduct, is now barred and estopped from claiming any right or maintaining any action to the detriment of defendants. 62. WHEREFORE, defendants pray This Honorable Court dismiss the plaintiffs complaint with prejudice. COUNTERCLAIM 1, BREACH OF CONTRACT 63. Defendants incorporate their responses in paragraphs 1-29, and each averment under New Matter in paragraphs 30-62, for all counterclaims, as if they were set forth in full. 64. On May 23, 2005, the plaintiff executed a deed and did "grant and convey" the property commonly known as 56 Oak Avenue, Camp Hill, PA, to defendants. See: Plaintiff's Exhibit B. 65. The use of such terms "grant and convey" are fully effective to pass fee simple title to defendants, unless the instrument expressly limits the conveyance to a lesser estate. 21 P.S. Sec. 2. Such words shall be construed as an express covenant from the grantor to the grantee-defendants for the quiet enjoyment of the premises against the grantor, unless limited by express words in the deed. 21 P.S. Sec. 4. 10. 66. The deed contained no words of limitation as to the estate passed, or the fulfillment of conditions precedent. 67. The plaintiff has brought this instant action seeking rescission of the deed, return of the property, and other relief, thereby breaching her express promises to convey a full fee simple estate, and provide for the quiet enjoyment thereof. 68. WHEREFORE, defendants pray This Honorable Court find plaintiff in breach of contract, dismiss the plaintiff's complaint with prejudice, quiet fee simple title in defendants, and discharge the lis pendens. In the alternative, defendants pray the Court award them damages in an amount equal to the fair market value of the real property, and such other relief as the Court may deem just and proper. COUNTERCLAIM 11: BREACH OF WARRANTY 69. In the deed described infra, the plaintiff-grantor promised she would "warrant specially" the property conveyed. 70. The use of the term "warrant specially" shall be construed to mean that the grantor will warrant and defend the property unto the grantees against her lawful claims and demands. 21 P.S. Sec. 6. 71. The plaintiff has brought this instant action seeking rescission of the deed, return of the property, and other relief, thereby breaching her express warranty. 11. 72. WHEREFORE, defendants pray This Honorable Court find plaintiff in breach of warranty, dismiss the plaintiff's complaint with prejudice, quiet fee simple title in defendants, and discharge the lis pendens. In the alternative, defendants pray the Court award them damages in an amount equal to the fair market value of the real property, and such other relief as the Court may deem just and proper. COUNTERCLAIM III: ACTION TO QUIET TITLE 73. Plaintiff has filed this instant action on February 20, 2007, docketed at 07-940 Civil Term before This Honorable Court, seeking to enjoin defendants, infer alia, from granting, mortgaging or disposing of their interest in real property, and further seeking an order for defendants to reconvey the property back to plaintiff, and other relief. 74. Such action affects defendant's right, title and interest in the real property. 75. The real property in question is commonly known as 56 Oak Avenue, Camp Hill, PA, 17011, the metes and bounds of which are legally described within plaintiff's Exhibit B, and also within the deed duly recorded at Book 269, Page 1534, in the Office for the Recorder of Deeds of Cumberland County. 76. Plaintiff's action above-referenced is without merit in law or equity. 12. 77. WHEREFORE, defendants pray This Honorable Court, pursuant to Pa. R.C.P. 1066: a) Order the plaintiff, by way of Decree Nisi, be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interests and claims of defendants, unless the plaintiff takes such action as the Court may direct within 30 days, and unless such action is taken, direct the Prothonotary to enter final judgment upon praecipe of defendants, and b) Discharge the Lis Pendens filed at the same term and docket number, and c) Enter a final judgment that the above-referenced deed is valid, and direct the Prothonotary to enter such judgment, and further direct the Recorder of Deeds to record such judgment, and d) Direct and grant such other relief as the Court may deem appropriate. Respectfully submitted, /7 Date l-? (_-- Philip M. Intrieri, Esq. Attorney for Defendants Eric and Heather Siler 13. INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 48`" Street Harrisburg, PA 17111-3625 (717) 564-6969 Pa. Attomey I.D. 76117 VERIFICATION We hereby verify that the statements made in this ANSWER WITH NEW MATTER AND COUNTERCLAIMS are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. -SAf/0 7 Date Date( Mr. Eric A. Siler Defendant Ire r , -,6,7 cl., 3 //s/ R. MARK THOMAS Attorney at Law 101 South Market Street Mechanicsburg, Pennsylvania 17055-3851 Telephone: (717) 796-2100 Telefax: (717) 796-3600 March 13, 2007 Philip Intrieri, Esquire 615 North 48?' Street Harrisburg, PA 17111 Re: Margaret E. Siler to Eric A. Siler and Heather A. Siler 56 Oak Avenue, Camp Hill, PA 17011 Dear Mr. Intrieri: I recall preparing a deed to the above-captioned property with Margaret E. Siler as the Grantor and Eric A. Siler and his wife, Heather A. Siler, as Grantees. The deed would have been prepared on or about May 23, 2005. Initially, I was contacted by Eric Siler and scheduled an appointment for him and his mother to meet with me in my office. When I met with the two of them, it was clear that Margaret E. Siler intended to transfer this property to her son, Eric, and his wife. There was nothing in Margaret's demeanor that caused me to question her intent. There was no mention of an agreement with regard to the property other than that his mother was going to continue to reside at the property. I discussed with both Margaret and Eric the tax consequences of making a gift of this real property as opposed to Eric's inheriting this property. Specifically, I advised both Eric and his mother that Eric would only have a tax basis in the property equal to the tax basis that his mother had. On the other hand, I explained to both of them that if Eric inherited the property, he would receive a step-up in basis equal to the fair market value of the property on Margaret's date of death. Enclosed is a copy of an Acknowledgment that I had Eric sign in which he acknowledged his understanding of the tax consequences as a result of this gift. I also had Margaret bring a death certificate with regard to her deceased husband, Edward H. Siler, so that I could confirm that she was the sole owner of this property. -2- Please contact me with any questions which you might have. Very truly yours, . Muk t? R. Mark Thomas RMT/jlm Enclosure ACKNOWLEDGMENT 1. . Eric A. Siler, the son of Margaret E. Siler and one of the named Grantees in the deed prepared at my request by R. Mark Thomas, Esquire, hereby state the following: When I discussed the preparation of this deed and the -transfer of title to this property with R. Mark Thomas, Esquire, he explained to me the tax consequences that may flow from this transfer. Specifically. since my mother eras passing title to myself and my wife as a gift. my tax basis in the property would be equal to the tax basis that my mother has in the property. In the event that I should later decide to sell this property the capital gains tax would be significantly increased since I took title to the property by way of a gift from my mother rather than obtaining title to the property by inheritance. Having been so advised by R. Mark Thomas, Esquire, it is still the desire of both nay mother and myself that title be transferred by way of a gift rather than by inheritance. Eric A. Siler .5"a3 os Date Fl.o s Philip M. Intried & Associates 615 North 48th Street Harrisburg, PA 17111-3625 (717) 564-6969 Attorney I. D. # 76117 CERTIFICATE OF SERVICE I, Philip M. Intrieri, Esq., do hereby certify that on March , 2007, 1 served a true and correct copy of the foregoing ANSWER WTH NEW MATTER AND COUNTERCLAIMS, by causing the documents to be deposited in the United States Mail, first class postage prepaid, to the following: Ms. Nichole M. Walters, Esq. Dickinson Elder Law Clinic 150 South College Street Carlisle, PA 17013-2899 Date Philip M. Intrieri, Esq. Attorney At Law 615 North 48th Street Harrisburg, PA 17111 (717) 564-6969 Atty. ID # 76117 r'± `a rm -- Sy s cr % IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, Pennsylvania 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Dover, PA 17315 Defendant CIVIL ACTION - LAW NO. 07 - 940 Civil Term ANSWER TO NEW MATTER AND COUNTERCLAIMS Plaintiff, Margaret Siler, by and through her attorneys, Nichole M. Walters, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of The Pennsylvania State University state the following in support of this Answer to New Matter and Counterclaims: 30. Denied. The transfer of real property in question was intended by plaintiff to be consideration for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence. 31. Admitted in part and denied in part. It is admitted that plaintiff had capacity to make a gift. It is denied that Plaintiff made a gift of the property. Instead, the property was the consideration for defendants' promise to move into the property and care for the plaintiff and the property. Further, when there is some vicious element such as fraud or a confidential relationship in connection with the transaction, the law compels the recipient of the property to show that it was the free, voluntary and intelligent act of the person giving it. It is not enough that the plaintiff had the mental capacity to give a gift. 32. Denied. It was the defendants' idea to transfer the property. Furthermore, defendants initiated the meeting with attorney R. Mark Thomas regarding the transfer of the property. Plaintiff intended to transfer the property in return for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence 33. Denied. It is denied that the property plaintiff delivered was a gift. Instead, the plaintiff gave the defendants the property in return for the defendants moving in with the plaintiff, repairing her home and caring for the plaintiff and the residence. It is denied that the plaintiff provided the defendant with a key prior to March 8, 2007 when Defendant Eric Siler stopped by the property to ask the plaintiff for the key. 34. Denied. Title to the property was transferred to the defendants in consideration for their promise to move in with the plaintiff and provide care for both plaintiff and the property. 35. Denied. Plaintiff denies that Attorney R. Mark Thomas ever explained specifically to her that she was making a gift. 36. Denied. As way of further explanation, no answer is required as the document speaks for itself. 2 37. Admitted in part and denied in part. It is admitted that the plaintiff was present when the acknowledgement was signed. Plaintiff denies that she heard or understood that the basis for defendants' signing the acknowledgment was to explain the tax consequences of a gift as opposed to inheritance. 38. Denied. The exhibit speaks for itself. As way of further answer, the plaintiff discussed the parties' agreement while Attorney Thomas was present. 39. Denied. 40. Admitted. 41. Admitted. 42. Denied. 43. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. 44. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial, if deemed relevant. 45. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial, if deemed relevant. 46. Denied 47. This statement is a conclusion of law to which no response is required. Any implication that plaintiff failed to allege facts sufficient to support a claim for fraud and undue influence is denied. 3 48. Denied. Defendants made false statements and misrepresented to Plaintiff that they would move in with plaintiff, repair her home and take care of the plaintiff and the residence in return for the conveyance of the home. Although defendants accepted title to the residence they have not fulfilled their promises to plaintiff to repair and maintain her home and move into the residence and care for plaintiff. 49. Denied. The defendants promised to move in with the plaintiff, repair her home and take care of the plaintiff and the residence in return for the conveyance of the home. Plaintiff relied on these false statements and conveyed the property to the defendants. 50. Admitted in part and denied in part. It is admitted that the plaintiff did not escrow the deed. Any implication that the plaintiff would know she could escrow the deed without the benefit of legal counsel is denied. 51. Denied. The transfer of the property was only voluntary based on the fact that the plaintiff believed the defendants would move in with plaintiff, repair her home and take care of the plaintiff and the residence. Plaintiff was concerned that she would be unable to stay in her home because her physical condition and age would limit her ability to adequately care for herself. Defendants persuaded plaintiff to transfer the real property to them so that she would not have to leave her home. 52. Admitted in part and denied in part. It is admitted that the defendants did not reside with the plaintiff. However, any implication that the defendants could not influence the plaintiff because they did not live with her is denied. The natural confidence inspired by the mother-son relationship combined with plaintiffs 4 dependence on defendants as well as the particular state of mind of plaintiff at the time of the conveyance, adequately establishes that a confidential relationship existed. 53. Denied. Plaintiff did not have knowledge of the consequences of executing the deed because she was not advised by attorney R. Mark Thomas that she was making a gift. 54. Denied. Defendants accepted the property after promising they would move in with plaintiff, repair her home and take care of the plaintiff and the residence. 55. Denied. Plaintiff lacks sufficient knowledge of Attorney R. Mark Thomas' impressions so as to form an answer to this averment. 56. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary and strict proof is demanded at trial. 57. Denied. ANSWER TO AFFIRMATIVE DEFENSE : ESTOPPEL 58. Denied. Plaintiff has paid to replace the roof and paid to replace the furnace. Plaintiff pays all the utility bills for this property. 59. Denied. Plaintiff has had to continue to have the burden of ownership inasmuch that she paid to replace the roof and to replace the furnace. Plaintiff continues to be burdened with everyday ownership of the property including making sure the walkways are clear from snow and paying all utilities for the property. 60. Admitted in part and denied in part. It is admitted that plaintiff forwarded the tax bill to defendants. It is denied that plaintiff accepts or receives any benefits from 5 defendants as they have failed to fulfill their promises to care for plaintiff and the residence. 61. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial, if deemed relevant. 62. Denied. COUNTERCLAIM I, BREACH OF CONTRACT 63. No answer is required. However, plaintiff reasserts her answers to Paragraphs 30- 62 as set forth above. 64. Admitted. 65. The averment included in this paragraph is a conclusion of law to which no response is necessary. 66. Admitted. 67. Admitted in part and denied in part. It is admitted that plaintiff is seeking the relief defendants stated. It is denied that plaintiff breached her promise to convey a full fee simple estate and/or provide for the quiet enjoyment of the residence. 68. Denied. COUNTERCLAIM II: BREACH OF WARRANTY 69. Admitted. 70. The averment included in this paragraph is a conclusion of law to which no response is necessary. 71. Admitted in part and denied in part. It is admitted that plaintiff is seeking the relief defendants stated. It is denied that plaintiff breached her express warranty. 6 72. Denied. COUNTERCLAIM III: ACTION TO QUIET TITLE 73. Admitted. 74. Admitted. 75. Admitted. 76. Denied. 77. Denied generally and as to all subparts. Respectfully Submitted, Dated: '0 UdLotb-'-M - LAW±t a Nichole M. Walters Supreme Court No. 84478 Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 7 VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: Margaret qer 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, Pennsylvania 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Dover, PA 17315 Defendant CIVIL ACTION - LAW NO. 07 - 940 Civil Term CERTIFICATE OF SERVICE I hereby certify that on ApriA , 2007 I served a true and correct copy of the foregoing Answer to New Matter and Counterclaims by first class mail, postage prepaid, upon the following counsel of record: Trisha Cowart Certified Legal Intern Philip M. Intrieri & Associates Attorney at Law 615 North 48th Street Harrisburg, PA 17111 Nichole M. Waters Supervising Attorney Elder Law and Consumer Protection Clinic Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013 Phone: (717) 240-5152 C;J -T'1 i,_ /. rTl SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-00940 P COMMONWEALTH OF PENNSYLVANIA: + COUNTY OF CUMBERLAND SILER MARGARET VS SILER ERIC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: SILER ERIC but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On March 16th , 2007 , this office was in receipt of the attached return from YORK Sheriff's Costs: So answers• Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep York County 64.95 Sheriff of Cumberland County Postage 2.70 104.65 ? 3?d ?,'U? 03/16/2007 MARGARET SILER Sworn and subscribe to before me this day of , A. D. SHERIFF'S RETURN - OUT OF COUNTY M f CASE NO: 2007-00940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SILER MARGARET VS SILER ERIC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT SILER HEATHER to wit: but was unable to locate Her deputized the sheriff of YORK serve the within COMPLAINT & NOTICE County, Pennsylvania, to On March 16th , 2007 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge So answers 6.00 .00 55 10.00 . Thomas Kline .00 Sheriff of Cumberland County 00 16. o o -? 3/14 lo 7 03/16/2007 MARGARET SILER Sworn and subscribe to before me this day of in his bailiwick. He therefore A. D. I, OF 2 COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 1? SERVICE CALL (717) 771-9601 SHERIFF SERVICE INSTRWTIOM.S PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LNE 1 THRU 12 DO NOT DETACH ANY COPIES 1. PLAINTIFFS/ 2 COURT NUMBER 3. DEFENDANTISI Eric Siler et al SERVE 5. NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETC TO SE E OR DE Eric Siler o&/ /& &11A" y 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO, T 4. TYPE OF WRIT OR COMPLAIN I C A Notice and Complaint IPTIO OF PROPERTY TOJ4E LEVIED, ATT ED. OR SOLD V? low STATE ANOZI?P7CODE) ??/? AT qe?_ i e_ c r ' m c a s rt?i -i i?1 ? ?af!I ?JV?(O / // ?/ ! (r?J? C r 7. INDICATE SERVICE O PERSONAL L] PERSON IN CHARGE • DEPUTIZE J C RT. IL Ll 1 ST CLASS MAIL Ll POSTED J OTHER NOW February 21 _97 20 I, SHERIFF OF COUNTY, PA, do ereby deputiz the sheriff of York COUNTY to execute this retur th cording to law. This deputization being made at the request and risk of the plaintiff.. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SM"E OF COUNTY ADVANCE FEE PAID BY CUMBERLAND CO SHERIFF Please mail return of service to Ctunberland County Sheriff. Thank you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriff's sate thereof. 9. TYPE NAME and ADDRESS of ATTORNEY I ORIGINATOR and SIGNATURE N 1 G ti U L t M . PS N L I t K J 10. TELEPHONE NUMBER 11. DATE FILED 150 SOUTH COLLEGE ST., CARLISLE, PA 17013-2899 717'-240-5152 212012007 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) KANKAST CUMBERLAND CO SHERIFF SPACE BELOW FOR USE OF THE S#jlERFF - 00 NOT WRITE BELOW THIS LINE 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15. EzpiratioMHearing Date or complaint as indicated above. M J M C G I L L Y C S D 2/ 2 2 0 0 7 3/?3/2007 16. HOW SERVED: PERSONAL ( RESIDENCE( ) POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. 1 hereby certify and retur NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 1 E AAN TITLE OF INQIVID L SERVED I LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19, e I ice 20 yrx?t rv caQ 07 -6 1 21. E TVe Njle jit gate Time Miles Int. Date Time Miles Int. Date Tone Miles Int. Date Time Mile Int. Date Time Miles] Int. 22 23. Advance Costs $100.00 24. Service Costs a .00 25. NIF 26. M1lea a C4 1-N -4-j 1 27. Postage VF u 29. Pound 30 Notary -An 31. Surohg. 32. Tot. Costs ? 33 Costs Refund 35, 14 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37. Notary Cert. 38. Mileage/Postage/Not Found 39. Total Costs 40. Costs Due or Refund 41 AFFIRMED nd s ib b d t b t h 12 T I-i SO S . scr a u e a me t o e 42. day of TFNstt h ?? 7 u. ?pnaturrect ?_ 4 . E(7 « Ifiam yRdYARY - - LISA L- ". NC a",'o,; 5L1- j ` 46. Signature of County Sheriff F01''':;4 / / L/ T''1 E(0)Sl , S HE , F 47. ATE 3/1207 Y C1 YCY:1R-, YD5KC_., MY CCP?;f??:S3iC v EXPIRES AUG. 12, 2?3 , 48. Signature of Foreign County Sheriff _ 49 DATE 50. 1 AC " SIG NATURE 51 nATF RFCF ivF:n OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY . Sheriffs Office 4. BLUE - Sheriffs Office 2 OF 2 COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 14 SERVICE CALL (717) 771-9601 SHERIFF SERVICE M?ISTINXTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFF/S/ Siler 2 COURT NUMBER 3. DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAIN Eric Siler et al Notice and Complaint SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Heather Si.ler 6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO., CITY, BORO, TWP. STATE AND ZIP CODE) AT 413 Mountain View Terrace Etters, PA 17315 ;foci ?ed ?;rK Rd [oF 41-1 1?,??< ?A Iz3?s 7 INDICATE SERVICE U PERSONAL U PERSON IN CHARGE DEPUTIZE ?EFjT_IN? U 1ST CLASS MAIL U POSTED LI OTHER NOW February 21 2007 I, SHERIFF -(YFidW COUNTY, PA, d hereby deputize the sheriff of York COUNTY to execute thI ake reV2?- rd ing to law. This deputization being made at the request and risk of the plaintiff., SHERIFF OF WiWCOUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICb UT OF COUNTY CLinber ADVANCE FEE PAID BY CUMBERLAND CO SHERIFF v Please mail return of service to Cmberland County Sheriff. Thank you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATUR C H 0 E M . W A L T E R S 10. TELEPHONE NUMBER 11. DATE FILED 150 SOUTH COLLEGE ST., CARLISLE, PA 17013-2£399 717--240-5152 212012007 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW (This area must be completed if notice is to be mailed) cumber l 6 nd co sheriff SPAN SELOW FOR USE OF THE S ERFF - 00 NOT WRITE SELOW THIS LM 13. 1 acknowledge receipt d the writ M J M C G I L L Y C S O 2! D&TE 2 0 0 7ED 315 % 2? 2 0 0 r7 g Date or complaint as indirstted above. 16. HOW SERVED: PERSONAL RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW 17. 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) _ t A T TLE OF INDIVIDUA SERVE / (.IST ADDRE S HERE IF NOT SHO A VE (Relationship to Defendant) 19 a of rvice 20 Ti SS I 21. ATTEMPTS Time Males 1 Date Time Miles Int. Date Time Miles Int. Date Time Miles Int. Date Time Mile Int. Dale Time Miles Int 22. REMARKS: 23. Advance Costs 24 Service Costs 25 N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30. Notary 31. Surchg. 32 Tot. Costs 33 Costs Due or Refund Check 1 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37. Notary Cert. 38. Mileage/Postage/Not Found 39. Total Costs 40. Costs Due or Refund 2 1 Sv A 41. AFFIRMED and subscribed to bell r me this 42. day of 44. Signature of Dep. Sheriff 4 67 46. Signature of Y L/ 47. GATE NOTARIAL EAI_ ounty Sheriff C LISA L.BOINAIA"'e hO7HR t?JBLlI, ! ? _ C[+ LVi l'?1L1?1L1'1 L}iUJL iSLI"L\.Lr _F 7 _ J / 3/12/0 CITY Or 1 ?.' C MY COM`.i i 0N ' r,w. 12, 2009 48. Signature of Foreign County Sheriff 49 DATE 50. 1 ACKNOWLEDGE RECEIP F H NATURE 151 DATE RECEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY • Sheriffs Office 4. BLUE - Shenfrs Office -0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17315 Defendant CIVIL ACTION - LAW NO. 07- 940 Civil Term MOTION FOR LEAVE OF COURT TO FILE AN AMENDED COMPLAINT PURSUANT TO PA. R.C.P. 1033 AND NOW, comes the Plaintiff, Margaret Siler, by and through her attorneys, Mark W. Allshouse and the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Motion for Leave of Court to File an Amended Complaint Pursuant to Pa. R.C.P. 1033 avers as follows: 1. Pennsylvania Rule of Civil Procedure 1033 states that "A party, by either filed consent of the adverse party or by leave of court may at any time change the form of action, correct the name of a party, or amend his pleading." Pa. R.C.P. 1033 also states that "An amendment may be made to conform the pleading to the evidence offered or admitted." 2. Plaintiff, Margaret Siler, is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendants are Eric Siler, plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319. 4. Plaintiff is an 86 year old widow who has medical problems and relies on the care of her children. 5. Plaintiff initiated this action by filing a complaint on February 20, 2007 based on a failure by defendants to fulfill obligations to plaintiff for care in exchange for transferring the deed of her home. A copy of plaintiff s Complaint is attached to this Motion and marked as "Exhibit 1." 6. Discovery revealed additional facts, including the defendants' admitted knowledge of plaintiff s medical conditions, defendant's involvement in family discussion of plaintiff s care, and plaintiff s trust and reasonable reliance upon defendants in consultation and managing her affairs which were not known at the time the original complaint was filed. 7. These additional facts lead to additional causes of action including Confidential Relationship, Breach of Fiduciary Duty, Negligent Misrepresentation, Intentional Misrepresentation, and Unjust Enrichment. 8. Defendants will not be prejudiced by allowing plaintiff to amend her complaint as no additional discovery delay will be created. 9. Defendants do not concur with plaintiff s request to amend the complaint. 10. A copy of the proposed Amended Complaint is attached hereto as "Exhibit 2." WHEREFORE, the Plaintiff respectfully requests that this Honorable Court grant the Plaintiff s Motion for Leave to File an Amended Complaint. Respectfully submitted, s0 Brian McMorro?w Certified Legal Intern Dated: I I - (S ` ?CDI ,M,'h J n&kA &A. M k W. Allshouse sq. Su reme Court No. A014 Eld r Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 ib EXHIBIT 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17315 CIVIL ACTION - LAW NO. 2006 CV 0? - (?Iqd NOTICE O M = F w CD m at=? -71 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed'in the Complaint or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Defendant I . NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de a stas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la peticion de demands. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELFFONO A LA OFICINA MY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 '??tl?e..'Y1?1 ld)LC? -, Nichole M. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, Pennsylvania 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17319 Defendant CIVIL ACTION - LAW NO. 2006 CV COMPLAINT Plaintiff, Margaret Siler, by and through her attorneys, Nichole M. Walters, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of The Pennsylvania State University state the following in support of this Complaint: STATEMENT OF FACTS 1. Plaintiff,- Margaret Siler is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendants are Eric Siler, plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319 3. Prior to May 23rd, 2005, plaintiff was the sole owner of the residence located at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, (hereafter 3 "the residence") as evidenced by the deed dated March 1972, and recorded in the office of the Recorder of Deeds of Cumberland County in Deed Book 24N page 920. A true and correct copy of the deed is attached hereto and incorporated herein by reference as Exhibit "A." 4. Margaret Siler is currently 84 years old and is a widow with five adult children. 5. On May 23rd, 2005, plaintiff executed a deed conveying to defendants her residence at 56 Oak Avenue Camp Hill, Pennsylvania 17011 in consideration for $1.00 together with defendants' promise to move into the residence and care for plaintiff. 6. Defendants also promised to repair the residence and to keep the residence maintained in a reasonable fashion. 7. The conveyance was recorded on June 9t', 2005 in the office of the Recorder of Deeds of Cumberland County in Deed Book No. 269, page 1534. The deed purports to be an absolute conveyance of the premises to defendants. A true and correct copy of the May 23, 2005 deed is attached hereto and incorporated herein by reference as Exhibit "B." 8. The deed, while in the form of a deed of gift, was, in fact, intended by plaintiff to be transferred as consideration for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence. 9. Although defendants accepted title to the residence they have not fulfilled their promises to plaintiff to repair and maintain her home and move into the residence and care for plaintiff. 4 10. Due to her physical condition, Plaintiff is dependant on the care of her children. Plaintiff has had a knee operation, two hip operations and was in therapy for her back and as a result has limited ambulation without assistance. 11. Plaintiff cannot drive and therefore, she relies on others to take her to doctor appointments, shopping and to the pharmacy. 12. Plaintiff is unable to perform routine household chores such as cooking, cleaning and laundry. 13. In September, 2006, plaintiff asked defendants to reconvey the property to plaintiff so that she could repair the roof and the furnace because she was without heat. Defendants refused. 14. Plaintiff never intended to move out of her home when completing the above mentioned conveyance but as a result of defendants breach of their obligations to plaintiff, may need to move to a place where care and assistance are available. COUNT I - UNDUE INFLUENCE 15. Paragraphs I through 14 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 16. There was a confidential relationship between defendants and plaintiff. 17. Defendants received a substantial benefit by acquiring title to the residence without giving valuable consideration. 18. Although Plaintiff may have possessed the requisite testamentary capacity on May 23, 2005, her weakened intellect and trust in family members made her susceptible to undue influence and manipulation by family members. 5 WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT II - FRAUD 19. Paragraphs 1 through 18 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length 20. The conveyance was without valuable consideration as the recited consideration of one dollar was merely formal and not actually exchanged. 21. Defendants' promises to care for plaintiff and repair her home were inducements for the conveyance without which the conveyance would not have been made. 22. Defendants procured the execution of the deed by fraud by inducing Plaintiff to convey the residence with no intention of honoring the agreement. The 6 defendants now maintain control over and have title to the property described therein as the fruit of such fraud. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT III - BREACH OF CONTRACT 23. Paragraphs 1 through 22 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 24. Defendants orally promised to care for plaintiff and repair her home as consideration for plaintiff conveying the home to the defendants. 7 25. Defendants have failed to fulfill their obligations under the agreement between Plaintiff and Defendants 26. Defendants did not move into the residence. 27. Defendants are not providing care for the plaintiff. 28. Defendants refuse to maintain the residence and repair the furnace and roof. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action. 8 Respectfully Submitted, Dated: -ILO -7 Nichole M. Walters Supreme Court No. 84478 Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 9 VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: 414-OLl- Margaret Si)V r 10 ?? ?- --- ??•? r?s-r ? . .,: ? ,t, r a? ??_? ? EXHIBIT ,. '1 ?+ , i i i .i .. f .? 1 i ?' 4 S t r ? J 7K ? a LhomaS F. bell = v zoxiimouwtrnlth of tutioutbauia , 7`,•.? ..p. .?V; 21, 1973. Y(?`raiat'llinitwtall' of roils lU41109% • - ate. , xsunlu of the undersifued uffleer, personally appeared CIE WILI,IAMS BELL and THOMAS F. BELL, , her husband, f Ja (or satisfactorily proven) to be the person s whose na??te s are'. subscribed to the within .; 11?0 n?e!;?tamd ackrwrvledied that tby executed the sane fur the pure therein eontair". ..;; ...... IX?1L' gT.Y1iS3 WHERBOF, I have hereu»f rat lwnd and uffl seat. i ? w gip., r orm mMON4 llodiryPoblla r, w?r;rl(r Golmisdea ??N?lar d Cousr7 .. s . , } ? _ ? _ sac. A n? Ou this, the G ' day 1'#72 , before.wts a .Notary Public III F in and for said County-and State, ?f On this, the day of 19 , before no the uirdersiFned ofJloer, personally appeared. 5 - { known to ne(orsolisfacturily proven) to be the person' whose naps subscribed to Ilse within instrument, and aeknorvledied that ' he. . executed the sane for the purpose therein eonlained IX WIT.YBSS WHEREOF, I have hereunto set my hand aru! anal. N, Mrre6v 1?erfife that the precise address of the frante'e herein is - S6 04N Amt 3b2 c,/.?,p ?.4 BOOK /L4race 922 ,ITT-- --.-------••-.?-T-,-- ., „ _ . .. ._ .. _ _ .._:?..r .?. 1 ' 3 F' !1- t ,r". t' ? war 4 + .. sHiS'?t j t? . A 10, r ;Uq I ? x Tax Parcel No. 10-21-0277-315 THIS DEED, MADE THIS o2 3 day of in the year of our Lord two thousand and five (2005) BETWEEN MARGARET E. SILER, widow, Grantor c ?° h , , and ERIC A. SILER and HEATHER A. SILER, to husband and wife, 3 ? Grantees: F'' m = WITNESSETH, that in consideration of ONE DOLLAR, ($1.00), in hand paid, the receipt whereof is hereby acknowledged, the said grantor does hereby grant and convey to the said grantees, their heirs or assigns, ALL THAT CERTAIN lot or tract of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the westerly line of Oak Avenue, said point being at a distance of 198 feet measured in a northerly direction along said Oak Avenue from the northerly line of Trindle Road; thence in a westerly direction along Lot No. 13, Block "S", on the Plan of Lots hereinafter mentioned, 150 feet to a point; thence in a northerly direction along Lot No. 5, Block "S", on said Plan, 50 feet to a point; thence in an easterly direction along Lot No. 15, Block "S", on said Plan, 150 feet to a point on the westerly line of Oak Avenue; thence along Oak Avenue, in a southerly direction 50 feet to a point, the Place of BEGINNING. BEING Lot No. 14, Block "S", on the Plan of Oakwood Park, as laid out by the Pennsylvania Realty & Development Company, which Plan of Lots is recorded in the Office for the recording of deeds, etc., in and for Cumberland County, Pennsylvania, in Plan Book 2, Page 59. " No Nam E EXHIBIT a l I- HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered as 56 Oak Avenue. BEING the same premises Marie Williams Bell and Thomas F. Bell, her husband, by deed dated March 6, 1972, and recorded March 28, 1972 in the Recorder's Office in and for Cumberland County, Pennsylvania, in Deed Book "N", Vol. 24, Page 924, conveyed unto Edward H. Siler and Margaret E. Siler, his wife. And the said Edward H. Siler died July 3, 1991 whereby sole title to said premises became vested in Margaret E. Siler, by virtue of the doctrine of survivorship incident to tenancies by the entireties, Grantor herein. THIS TRANSFER IS WHOLLY EXEMPT FROM REALTY TRANSFER TAX BECAUSE IT IS A TRANSFER FROM MOTHER TO SON AND DAUGHTER- IN-LAW. TOGETHER with all and singular, the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances, to the same belonging, or in anywise appertaining and reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof; And also, all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, of the said parties of the first part, of, in, to or out of the said premises, and every part and parcel thereof, with the appurtenances: TO HAVE AND TO HOLD, the said premises, with and singular the appurtenances, unto the said party of the second part, her heirs and assigns, to and for the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever. AND the said grantor hereby covenants and agrees that she will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said grantor has hereunto set her hand and seal the day and year first above written. Signed. Sealed and Delivered the Presenc } Margaret E. Sil } } W 20 Pwj&V Commonwealth of Pennsylvania ) County of Cumberland ss. On this, they day of /1??? ; , 2005, before me, the undersigned officer, personally appeared Margaret E. Siler, kknown proven) to be the person whose name is subscribed to he within (instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public NoWW Sal My com,,, Expires E*kn Ma. 11, 200E I do hereby certify that the precise residence and complete post office address of the within named grantees is 56 Oak Avenue, Camp Hill, PA 17011. O R , 2005 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ss. RECORDED on this day of the Recorders Office of the said County, Deed Book A.D. 20_, in Vol. Page Given under my hand and the seal of the said d thl LYd tg above written. I 2s to be recorded Tn Cumberland County PA \ t; Recorder. 800K 269 pl.r!?5.?' , Attorney for __ A4r EXHIBIT 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17315 Defendant CIVIL ACTION - LAW NO. 07- 940 Civil Term NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de a stas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demands y la notificaci6n. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la petici6n de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELFFONO A LA OFICINA CUY A DIRECCI6N SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Mark W. Allshouse Supreme Court No. 78041 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17319 Defendant NO. 07- 940 Civil Term AMENDED COMPLAINT Plaintiff, Margaret Siler, by and through her attorneys, Mark W. Allshouse, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of The Pennsylvania State University state the following in support of this Complaint: STATEMENT OF FACTS 1. Plaintiff, Margaret Siler is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendants are Eric Siler, plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319 3. Prior to May 23rd, 2005, plaintiff was the sole owner of the residence located at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, (hereafter "the residence") as evidenced by the deed dated March 1972, and recorded in the CIVIL ACTION - LAW 3 office of the Recorder of Deeds of Cumberland County in Deed Book 24N page 920. A true and correct copy of the deed is attached hereto and incorporated herein by reference as Exhibit "A." 4. Margaret Siler is currently 86 years old and is a widow with five adult children. 5. Plaintiff has had a knee operation, two hip operations, and she was in therapy for her back. As a result, plaintiff has limited ambulation without assistance. 6. Plaintiff is unable to perform routine household chores such as cooking, cleaning and laundry. 7. Due to her physical condition, plaintiff is dependent on the care of her children. 8. Plaintiff does not want to move into a nursing home. 9. Plaintiff cannot drive and therefore, she relies on her family members to take her to doctor appointments, grocery shopping, and the pharmacy. 10. After plaintiff lost her driver's license in 2003, defendants had numerous discussions with plaintiff and other family members concerning care arraignments for plaintiff. 11. Defendants were aware of plaintiff's medical conditions, requirements for her care, personal needs such as transportation, feeding and hygiene, and plaintiff's fear of moving into a nursing home. 12. Defendants participated in family discussions of plaintiff's care including, plaintiff s transportation needs to medical appointments and rehabilitative care, plaintiff's need for assistance with obtaining prescriptions and groceries, and plaintiff's need for assistance with personal hygiene recovering from surgeries. 4 13. Defendants told plaintiff and other family members that plaintiff would move in with plaintiff and renovate the house 14. By participating in family discussions about plaintiff's care in the future, defendants' actions inferred and inspired plaintiff s confidence that defendants would act plaintiff's best interest. 15. As a result of the above actions and representations, plaintiff trusted and relied on defendants to act in her best interests regarding her personal care and financial affairs. 16. Defendants offered and represented that if plaintiff would transfer the deed to them, defendants would move into the house and provide continued care for plaintiff. 17. Defendants also promised to repair the residence and to keep the residence maintained in a reasonable fashion. 18. On May 23`d, 2005, in reliance on defendant's promises, plaintiff executed a deed conveying to defendants her residence at 56 Oak Avenue Camp Hill, Pennsylvania 17011 in consideration for $1.00 together with defendants' promise to move into the residence and care for plaintiff. 19. Plaintiff was not represented by counsel at the deed transfer. The attorney conducting the deed transfer was chosen and paid by defendants. 20. The conveyance was recorded on June 9t', 2005, in the'office of the Recorder of Deeds of Cumberland County in Deed Book No. 269, page 1534. The deed purports to be an absolute conveyance of the premises to defendants. A true and 5 correct copy of the May 23, 2005 deed is attached hereto and incorporated herein by reference as Exhibit "B." 21. The deed was intended by plaintiff to be transferred as consideration for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence as offered. 22. Despite accepting title to the residence, defendants have not fulfilled their promises to plaintiff to repair and maintain her home or move into the residence and care for plaintiff. 23. In September, 2006, plaintiff, having no other options, asked defendants to reconvey the property to plaintiff so that she could repair the roof and the furnace because she was without heat. Defendants refused. 24. Plaintiff never intended to move out of her home when completing the above mentioned conveyance, but as a result of defendants breach of their obligations to plaintiff, may need to move to a place where care and assistance are available. 25. Plaintiff was harmed by transferring her house for consideration of one dollar. Plaintiff is no longer secure in her living arraignment because she no longer owns her house, she no longer possesses a major asset that she could use later to pay for her care. 26. Plaintiff may be ineligible for necessary government assistance because she has not transferred her house for value. Plaintiff cannot afford to repair the house if she cannot recover the benefits of investing money in home repairs. 6 COUNT I - UNDUE INFLUENCE 27. Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 28. There was a confidential relationship between defendants and plaintiff. 29. Defendants received a substantial benefit by acquiring title to the residence without giving valuable consideration. 30. Although Plaintiff may have possessed the requisite testamentary capacity on May 23, 2005, her weakened intellect and trust in family members made her susceptible to undue influence and manipulation by family members. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff, (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. 7 COUNT II - FRAUD 31. Paragraphs 1 through 26 of plaintiff's complaint are hereby incorporated by reference as if set forth at length 32. The conveyance was without valuable consideration as the recited consideration of one dollar was merely formal and not actually exchanged. 33. Defendants' promises to care for plaintiff and repair her home were inducements for the conveyance without which the conveyance would not have been made. 34. Defendants procured the execution of the deed by fraud by inducing Plaintiff to convey the residence with no intention of honoring the agreement. 35. The defendants now maintain control over and have title to the property described therein as the fruit of such fraud. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff, (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT III - BREACH OF CONTRACT 36. Paragraphs 1 through 26 of plaintiff's complaint are hereby incorporated by reference as if set forth at length. 37. Defendants orally promised to care for plaintiff and repair her home as consideration for plaintiff conveying the home to the defendants. 38. Defendants have failed to fulfill their obligations under the agreement between plaintiff and defendants 39. Defendants did not move into the residence. 40. Defendants are not providing care for the plaintiff. 41. Defendants refuse to maintain the residence and repair the furnace and roof. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; 9 (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action. COUNT IV - CONFIDENTIAL RELATIONSHIP 42. Paragraphs 1 through 26 of plaintiff's complaint are hereby incorporated by reference as if set forth at length. 43. Defendants and plaintiff did not deal on equal terms, because plaintiff trusted that defendants were acting in plaintiff s interest with other family members as a result of their previous actions, and defendants stated intent in providing for her care. 44. Plaintiff relied on the presentation that defendants would act in good faith in managing her affairs. 45. Plaintiff relied on defendants' representation of acting in plaintiff's interest and did not secure independent counsel for the deed transfer on her house. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; 10 (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; (f) the Court declare the deed transfer voidable by the grantor; and (g) such other relief as the Court may deem proper and necessary. COUNT V - BREACH OF FIDUCIARY DUTY 46. Paragraphs 1 through 26 of plaintiff's complaint are hereby incorporated by reference as if set forth at length. 47. The confidential relationship created a fiduciary duty between the parties. 48. As part of this duty, defendants were obligated to act in plaintiff's interest. 49. By transferring the house to themselves without providing for plaintiff's care, and depriving her of the security of owning her home, defendants failed to act in plaintiff's interest breaching their fiduciary duty to plaintiff,. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; 11 (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VI - NEGLIGENT MISREPRESENTATION 50. Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 51. Defendant's representation that they would act in plaintiff's interest was either a negligent or reckless misrepresentation. 52. Defendants led plaintiff to believe that they would move in and care for her and the house if she transferred the deed. 53. When defendants determined they were not planning to move in with plaintiff or provide care for her, defendants should have communicated that to plaintiff clearly. 54. Defendants presented that they would move in and care for plaintiff intending these promises to cause plaintiff to transfer her house to them. 55. Plaintiff was injured by her action based on the reliance on defendants and she has lost the title to her home. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff, (c) that defendants be ordered to grant, convey, assign, and transfer the property to 12 plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VII - INTENTIONAL MISREPRESENTATION 56. Paragraphs 1 through 26 of plaintiff s complaint are hereby incorporated by reference as if set forth at length. 57. Defendants' representation that they would act in plaintiffs interest was intentionally false or made recklessly as to whether it was false. 58. Defendants knew or should have known that they were not planning to move in with plaintiff or provide care for her and communicated that to plaintiff clearly. 59. Defendants made the representation with intent for plaintiff to rely on the representation by transferring her house to them. 60. Defendants had a confidential relationship with plaintiff, which justified plaintiffs reliance on defendants for advice. 61. Plaintiff was injured by her action based on the reliance on defendants. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, 13 transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VIII - UNJUST ENRICHMENT 62. Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length and is being pled in the alternative to Count III herin. 63. Defendants accepted the deed and appreciated benefits of future gains from the rent or the sale of plaintiff's house. 64. Defendants accepted and retained such benefits under circumstances that it would be inequitable for defendant to retain the benefit without payment of value. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; 14 (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. Respectfully Submitted, Dated: Mark W. Allshouse Supreme Court No. 78014 Brian McMorrow Certified Legal Intern Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 15 VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: Margaret Siler 16 CERTIFICATE OF SERVICE I, Brian McMorrow Certified Legal Intern with the Elder Law Clinic, The Dickinson School of Law, The Pennsylvania State University, certify that on November 18th, 2008, I served the foregoing Rule to Show Cause and Petition to Amend Complaint Pursuant to Pa. R.C.P. 1033, by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Philip M. Intrieri & Associates Attorney at Law 615 North 48`h Street Harrisburg, PA 17111 Date: By: Brian McMorrow Certified Legal Intern The Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 17 EXHIBIT A , .101 DEW ' y .E.. dv; "a d., 1211 MY St.. AIM. 7 h. y'?tF Ski , .. L,.L'j •f ? ? - r yl' ^ L. i rifaote the day oj::.a.?, tJae near. ',,•Y Xineteen hundred and aevenV6two (1972) r L z fi+ r y: C?WPPlt MARIE WILLIAMS BELL and THOMAS F. BELL, bar husband, of the•Borough , S,. of Camp Hillj'.County of :Cumberland, State of Pennsylvania, 'GRANTORS; : A Wt I EDWARD H. w' •2,J SILER and Ml1RGARET S. SILER;,his wife; of the City of Harrisburg, "County RANTES3, rr : of Dauphin, State-of PennsyIvaniA a;? G _Ij ' i ..,.r•w?^ 1 ?. fir f' k? ?.. iA L i ?, ` ?-?. " •ti?a?sSs cP3? •?'.-* ,-{t F L ".?' ? 7! l? L ?.? i1? .;? That in oonsideratiorr of -, -. --- - - - z' Seventeen Thousand Five Hundred and'00/100 017 1500-00% -- o Zara ` D i in hand pathe receipt whereof is hereby aeknowjedQed, the said grantors do :7.:•. .' hereby grant arcrl: convey to the said grantee a •their :•.. heirs and :asscgf ?ns,', ALL that certain lot-or tract'of land situate in the. Township of.Hampden, County of Cumberland and'Stateof'Pennsylvania, more particularly bounded and described as follows, to wit:- BEGINNING at a point-on the westerly line of Oak Avenue, said point being fY. at a distance of one hundred ninety-aix (196). feet measured in e.norther b direction•>' c> along.said Oak Avenue 'froa.the northerly line of,Trindle Roadj thenco in a xeaterly'' direction along Lot No.13, Block "3", on the Plan. of•Lots'hereinafter'mentioned, • 3a.i;1 ; one hundred fifty.(150) feet to a:pointj thence in a northerly direction along,Lot No. 5, Block'."S", on, said Plan, fifty (50) feet to,. a. point] thence in an easterly -direction along Lox No;'•3,5,..Blook as",'on,said Plan, one hundred fifty (150) feel 'to a point on'the westerly line of Oak Avenue; tl*cs along :Oak Avenue, in a southerly direction fifty (50) feet to a point, the Place of BEGINNING, ?:, .r. BEING Lot No. lbBlock "39 , on the Plan of Oakwood Park, as laid out by. th Pennsylvania Realty & Development Company, which Plan of Lots is recorded in the ''.'•- Otfi6s for the recording of deeds, ete.? in and for Cumberland County, Pennsylvania, {: . . . if in Plan Book 2, Page. 59, r HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered ..e as 56 Oak Avenue, MOK j24PAm .920 EXHIBIT H 1 r 1 T i++ L I,?n zjt ,L 4 Ll j. i i' i f .f f { i I F r is EA I i' 7 4 G ::'." ... the said frantors - do hereby x warrant i s e !r SLpi genEralljr 5 the properfyhereby conveyed y' 1 x=y]?] 4• S s?4 3' 7?'?' ,' "?' i e I?? Ri r j,t i:•±'q.'.„?+r?!•i:' 'Til xt' Ustxtrs .< 1?1?rrraF, said grantoti 'Yuve' .1tereunto's-*etheir hands t '' :t and seals the day and year Jlrst aLoria written ignsA; ?ealeA'anA'lelinsrtd w ?;`?° ?` n list rtistl sr DF +.. G T j f: ?- OAQ f iams omas a .74 .i •4 r,F ,t• i a 1 1 . Dmm?uwsrlltll DF' laius l%laIn a }M ; • ?Dllllt}?f'D?C vihA3EiC/.?? . ... ... ??:t:•. G .' On this, the t; day o/ 1972 before nw a Notary Public fiE in and for said'County'and State, , ka p_L red MARIE NILI W HELL and THOMAS F. BELL'' the anderattaed officer, raorwll o Pe y r 7: ` : i+r her, husband, 'v' ' ??„1kp?ldi+ a(oraatis/aetoray proven)to betka persons whose name a are subiartbed to tha udUdn' E 7t IWe?reime oral ack+wudedied that t ia,y executed the some for the par therein contained, : q .,; ;;•; ?IXr?% J'XBS3 {YIItiNL01 , l have hareuht set / hand and' off, aaal. i?r:.;, q ; s i .. ?r. 'r1A,bllo a4liee?l'oruhl cw? R14,dcoml rag 'c: i;, ''t .' ??•?,,• E ;'•F.: tit tr; - ? 21, 1713 l ' l ' 1 l F ? . e }?l .Wp1A{? 1Dltwta r D , tllil5 llaltl t Q ) . W .,t>L:. ., SS. .r_, r 4?vuufv of ? On this, the day of 19 , before me 1 u _b r '` the uiulersiFnod ?Doer, personally appaare¢ :: •: 1 +w+un to me(orsrttts/aotarity proeen)1o be the person' urhosa uama subscribed to the uiithtn instrurnent, and ack oumfrdjed that 'he. . executed the same for the purpose therein-adatained• : T ° LY 11''17.VESS 1Y1188EOP, I have hereunto sat my hand and. !: seat. ' ?: 'S • , Y ? p1`Xrbiu rrftlaat else precise address of the grantee' lterein r . .. 3 aa? Ave 7 CA w5/, Ni 1lr n h 9 37 // 4F' J`(k??', eWX z4race 922 T..,.--..T_T , _ .. .... .. .?_ .? ......?._T.. ' ': ' r a , _ 1 , . i r tit. II Sr 77- EXHIBIT B ?.Oq I q X THIS DEED, MADE THIS ? 3 day of five (2005) Tai Paroel No. 10-21-0277-315 , in the year of our Lord two thousand and BETWEEN MARGARET E. SILER, widow, Grantor, C- Co n Z ? C)? M and ERIC A. SILER. and HEATHER A. SILER, r ? husband and wife, Grantees: WITNESSETH, that in consideration of ONE DOLLAR ($1.00), in hand paid, the receipt whereof is hereby acknowledged, the said grantor does hereby grant and convey to the said grantees, their heirs or assigns, ALL THAT CERTAIN lot or tract of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the westerly line of Oak Avenue, said point being at a distance of 196 feet measured in a northerly direction along said Oak Avenue from the northerly line of Trindle Road; thence in a westerly direction along Lot No. 13, Block "S", on the Plan of Lots hereinafter mentioned, 150 feet to a point; thence in a northerly direction along Lot No. 5, Block "S", on said Plan, 50 feet to a point; thence in an easterly direction along Lot No. 15, Block "S", on said Plan, 150 feet to a point on the westerly line of Oak Avenue; thence along Oak Avenue, in a southerly direction 50 feet to a point, the Place of BEGINNING. BEING Lot No. 14, Block "S", on the Plan of Oakwood Park, as laid out by the Pennsylvania Realty & Development Company, which Plan of Lots is recorded in the Office for the recording of deeds, etc., in and for Cumberland County, Pennsylvania, in Plan Book 2, Page 59. KAY! ? EXHIBIT HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered as 56 Oak Avenue. BEING the same premises Marie Williams Bell and Thomas F. Bell, her husband, by deed dated March 6, 1972, and recorded March 28, 1972 in the Recorder's Office in and for Cumberland County, Pennsylvania, in Deed Book "N", Vol. 24, Page 920, conveyed unto Edward H. Siler and Margaret E. Siler, his wife. And the said Edward H. Siler died July 3, 1991 whereby sole title to said premises became vested in Margaret E. Siler, by virtue of the doctrine of survivorship incident to tenancies by the entireties, Grantor herein. THIS TRANSFER IS WHOLLY EXEMPT FROM REALTY TRANSFER TAX BECAUSE IT IS A TRANSFER FROM MOTHER TO SON AND DAUGHTER- IN-LAW. TOGETHER with all and singular, the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances, to the same belonging, or in anywise appertaining and reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof; And also, all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, of the said parties of the first part, of, in, to or out of the said premises, and every part and parcel thereof, with the appurtenances: TO HAVE AND TO HOLD, the said premises, with and singular the appurtenances, unto the said party of the second part, her heirs and assigns, to and for the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever. AND the said grantor hereby covenants and agrees that she will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said grantor has hereunto set her hand and seal the day and year first above written. Signed. Sealed and Delivered he Presene } } Margaret E. Sil } } FS 2W PACEISV Commonwealth of Pennsylvania County of Cumberland ss. On this, thej§7.L day of /»n 2005, before me, the undersigned officer, personally appeared Margarer E. Siler, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public Wvw Sal Arm c`a ROO Nobly Polo m8ow s Um am cuob * d coin My Cow" M Ems EVNN Mv.11, 2= I do hereby certify that the precise residence and complete post office address of the within named grantees is 56 Oak Avenue, Camp Hill, PA 17011. o? , 2005 Attorney for COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ss. RECORDED on this day of . A.D. 20___, in the Recorder's Office of the said County, Deed Book , Vol. , Page Given under my hand and the seal of the said ofle h d tQ above written. dAi NIS to be recorded In Cumberland County PA Recorder. , 90011 269 W1536 CERTIFICATE OF SERVICE I, Brian McMorrow Certified Legal Intern with the Elder Law Clinic, The Dickinson School of Law, The Pennsylvania State University, certify that on November 18th, 2008, I served the foregoing Rule to Show Cause and Petition to Amend Complaint Pursuant to Pa. R.C.P. 1033, by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Philip M. Intrieri & Associates Attorney at Law 615 North 48th Street Harrisburg, PA 17111 Date: By:_ Bean McMorrow Certified Legal Intern The Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 ?._? c- ? ? ' i'Y'Y -?'? _ ?;:.'. . 3 .._e^• 1 __ ! , °{ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. CIVIL ACTION - LAW ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17315 Defendant NO. 07- 940 Civil Term MOTION FOR LEAVE OF COURT TO FILE AN AMENDED COMPLAINT PURSUANT TO PA. R.C.P. 1033 AND NOW, comes the Plaintiff, Margaret Siler, by and through her attorneys, Mark W. Allshouse and the Elder Law Clinic of the Penn State Dickinson School of Law, and in support of its Motion for Leave of Court to File an Amended Complaint Pursuant to Pa. R.C.P. 1033 avers as follows: 1. Pennsylvania Rule of Civil Procedure 1033 states that "A party, by either filed consent of the adverse party or by leave of court may at any time change the form of action, correct the name of a party, or amend his pleading." Pa. R.C.P. 1033 also states that "An amendment may be made to conform the pleading to the evidence offered or admitted." 2. Plaintiff, Margaret Siler, is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendants are Eric Siler, plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319. 4. Plaintiff is an 86 year old widow who has medical problems and relies on the care of her children. 5. Plaintiff initiated this action by filing a complaint on February 20, 2007 based on a failure by defendants to fulfill obligations to plaintiff for care in exchange for transferring the deed of her home. A copy of plaintiff's Complaint is attached to this Motion and marked as "Exhibit 1." 6. Discovery revealed additional facts, including the defendants' admitted knowledge of plaintiff's medical conditions, defendant's involvement in family discussion of plaintiff's care, and plaintiff's trust and reasonable reliance upon defendants in consultation and managing her affairs which were not known at the time the original complaint was filed. 7. These additional facts lead to additional causes of action including Confidential Relationship, Breach of Fiduciary Duty, Negligent Misrepresentation, Intentional Misrepresentation, and Unjust Enrichment. 8. Defendants will not be prejudiced by allowing plaintiff to amend her complaint as no additional discovery delay will be created. 9. A copy of the proposed Amended Complaint is attached hereto as "Exhibit 2." 10. No Judge has ruled upon this issue or any other issue in the same or related matter. 11. Opposing counsel of record does not concur in amending the complaint. Permission was sought from opposing counsel via telephone on October 27, 2008. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court grant the Plaintiff's Motion for Leave to File an Amended Complaint. Respectfully submitted, Brian McMorrow Certified Legal Intern Dated: 1 Z 0? W. Allshouse Es me Court No. 78014 Elder Law Clinic ' The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 I I -, EXHIBIT 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17315 Defendant 0 MM N3 ?e L r 0 ? CIVIL ACTION - LAW NO. 2006 CV ar - Q1wd rZ"rl OtiC- s' c - NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 , NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de a star demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificaci6n. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defenses o sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una order contra usted sin previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la petici6n de demander Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 L LAME pOR TELFFONO A LA OFICINA CUY A DMECCI6N SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Nichole M.. Walters Supreme Court No. 84478 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, Pennsylvania 17011 Plaintiff V. ERIC SMER HEATHER SILER 413 Mountain View Terrace Etters, PA 17319 Defendant CIVIL ACTION - LAW NO. 2006 CV COMPLAINT Plaintiff Margaret Siler, by and through her attorneys, Nichole M. Walters, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of The Pennsylvania State University state the following in support of this Complaint: STATEMENT OF FACTS 1. Plaintif? -Margaret Siler is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendants are Eric Siler, plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319 3. Prior to May 23rd, 2005, plaintiff was the sole owner of the residence located at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, (hereafter 3 "the residence's as evidenced by the deed dated March 1972, and recorded in the office of the Recorder of Deeds of Cumberland County in Deed Book 24N page 920.A true and correct copy of the deed is attached hereto and incorporated herein by reference as Exhibit "A." 4. Margaret Siler is currently 84 years old and is a widow with five adult children. 5. On May 23d, 2005, plaintiff executed a deed conveying to defendants her residence at 56 Oak Avenue Camp Hill, Pennsylvania 17011 in consideration for $1.00 together with defendants' promise to move into the residence and care for plaintiff. 6. Defendants also promised to repair the residence and to keep the residence maintained in a reasonable fashion. 7. The conveyance was recorded on June 9a', 2005 in the office of the Recorder of Deeds of Cumberland County in Deed Book No. 269, page 1534. The deed purports to be an absolute conveyance of the premises to defendants. A true and correct copy of the May 23, 2005 deed is attached hereto and incorporated herein by reference as Exhibit "B." 8. The deed, while in the form of a deed of gift, was, in fact, intended by plaintiff to be transferred as consideration for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence. 9. Although defendants accepted title to the residence they have not fulfilled their promises to plaintiff to repair and maintain her home and move into the residence and care for plaintiff. 4 I , 10. Due to her physical condition, Plaintiff is dependant on the care of her children. Plaintiff has had a knee operation, two hip operations and was in therapy for her back and as a result has limited ambulation without assistance. 11. Plaintiff cannot drive and therefore, she relies on others to take her to doctor appointments, shopping and to the pharmacy. 12. Plaintiff is unable to perform routine household chores such as cooking, cleaning and laundry. 13. In September, 2006, plaintiff asked defendants to reconvey the property to plaintiff so that she could repair the roof and the furnace because she was without heat. Defendants refused. 14. Plaintiff never intended to move out of her home when completing the above mentioned conveyance but as a result of defendants breach of their obligations to plaintiff, may need to move to a place where care and assistance are available. COUNT I - UNDUE INFLUENCE 15. Paragraphs 1 through 14 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 16. There was a confidential relationship between defendants and plaintiff. 17. Defendants received a substantial benefit by acquiring title to the residence without giving valuable consideration. 18. Although plaintiff may have possessed the requisite testamentary capacity on May 23, 2005, her weakened intellect and trust in family members made her susceptible to undue influence and manipulation by family members. 5 WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT II - FRAUD 19. Paragraphs 1 through 18 of Plaintiffs complaint are hereby incorporated by reference as if set forth at length 20. The conveyance was without valuable consideration as the recited consideration of one dollar was merely formal and not actually exchanged. 21. Defendants' promises to care for plaintiff and repair her home were inducements for the conveyance without which the conveyance would not have been made. 22. Defendants procured the execution of the deed by fraud by inducing Plaintiff to convey the residence with no intention of honoring the agreement. The defendants now maintain control over and have title to the property described therein as- the fruit of such fraud.. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff, (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such. consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT III - BREACH OF CONTRACT 23. Paragraphs 1 through 22 of Plaintiffs complaint are hereby incorporated by reference as if set forth at length. 24. Defendants orally promised to care for plaintiff and repair her home as consideration for plaintiff conveying the home to the defendants. 7 25. Defendants have failed to fulfill their obligations under the agreement between Plaintiff and Defendants 26. Defendants did not move into the residence. 27. Defendants are not providing care for the plaintiff. 28. Defendants refuse to maintain the residence and repair the furnace and roof. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying; assigning, transferring, mortgaging, or otherwise disposing of or encumbering the properly; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action. 8 Respectfully Submitted, Dated: 2 U -l Pte! -0 Nichole M. Walters Supreme Court No. 84478 Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 9 VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: I,? Margaret S' 10 MYL. - •1p. ' ' 101 D7fe •?- . ° ?-'. ?t` `. .Ea«.Mn idw CM 1711 Md 11.. iNM. ..Gi';:? ,.•.°1'r,3 ar .y1L. :.4A •.P+J", F ',?7q'e' ,.,,<' :aT' .?. .? .!'ffil 76e'' 'I ,.ke 1.?1?°+f'?f .•Ii, v.,•''i.. - `Aad,'? AI 1. a ,.1 •.},'.? : [C+T'.i IJrO - .' `' y?:..:-' : t?i, '.y+''•?,y4 . .. v ?? ? V' '? VIA Y? •t +•- day of ,cc:.,,.' the!/ear;:?w.,:x; ; ?tlade the Kneteen. hurulred'al7d •Bevga' two 72 hverst MARIE WIbLIAM4 EM and THOMAS F. MU, her hlieband, of the Borougti:l `;- of Camp Hill; Goupty of Vumberland, State of Pennsylvania, 'GRANTORS; z. ! .14 s..... EDWARD H.' SILEE: and MARGAREP It. SI=i. his wife;' of- the City. of Harrisburg, 'County '^'r, : a i s of Douiphl State 7of Penasyivania?, GRANTSffi. • ::. 7•" ' . ',IR . ?+ s; .?i• ......??-,"!nt.. •: i. f • .S.F ?Ltt'`' ", qN' '?,Y'•' ^Iy }5.114.!•: .`. tSP?? y•:; :.:... Y. . ' ?.: Rl:: .' J?'~-' } 7. . of . -.,?-.•- "`. '": ; 6 J s.? That in ooNtideratio `V Seventeen Thousand Five Hundred and'00/100 ($17,50Q.00)• Dollars, in hand paid, the receipt whereof 4 hereby aeknowjed,¢ed, the said iran•tore. do harabU grant and come;/ to the said grantees . their heirs aud,as4g,;i,;.' .. ; `' : ALL that. certain loi.or tract'of land situate in the. Township of,HampRiea, County of Cumberland and- state,of Pennsylvania, more particularly bounded and described as follows, to'•xitl- BM:DINM at•a.point 'on the westerly line of Oak,lvanue, said, point being .`v '` ;.. ',:.}. .: •.. ..,. < .M'IA' y. .at a distance of one hundred ninety; six (196)' feet measured in a. northerly direction-; ;<..;• along.said Oak Avenue from .the northerly line of _Trindle Road;' ' theaco is a weatarly° direction along Lot No...13, Block NS", on the Plan.of'Lota•hereinafter'mentioned, one 'hundred fifty. * (150'Seat. to a . : point; 'thence in a northerly direction anong,Lot ' J ?'s{fs?I i s,"r - 1 r No. $, Block';eSm, on add Plan, fifty ($o). foot to A point;. thence in an easterljr direction along Lot No;,.,15,'•.Block sSR, on .said Plan, one hundred fifty (150) feet:' i.f ... 'to a pointi on-the westerly line of Oak Avenue; ttienca along-Oak Avenue, 3n a ,.t. • southerly direction lift 0 feet to 'a point.' the Plaee_ of BEGINNING. G£ •'?n13MG Lot' No. 14 Block n3a, on the Plan :of Oakwood wood Park, as laid out bg th' 4 %J ••M Pennsylvania Realty & Development 0ompany, which Plan of Lots is recorded is the Offi6e for the recording Hof deeds, .etc.,, in and for. Cumberland County, Pennsylvania, in Plan Book 2, Page. 'S9, T , HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered ,,s?i as 56 Oak Avenue BMW4PAm 920 EKMrr ` L-J a '. i I M I I 4 r .fix a? cry d - iareb massant. :x ' i' "r 'iit? Lhe said ¢rantor o ' ' 1 U':, ` L;,. t; • - Al u ;A •:'t'y i? •~7•Fe I . r•' l • genr.ral?T• t4e•proper¢yh,erebjl?oonvcUed.•f _:%. :•'•:j,'' '' s' .. " Ss; ?'i.'.ti'1`F'a"i4f?'i''dY 'Y'?'. •.'t:. :`,;.' .?e .. .`?'i,'.,i ?.;^.,`!! ,xr %t.." :.pr•'l?ml ?':'f: . . Lj:. '.'S.?. •, ;Y! Ali :•. t.;: ? ar.. ^?;' M } `f2 ^ { t4ii 7 7 ?? Go#' lflit'9'ro, 11'SPDf? grarit'ote'.''ltave'' hereunto'aet'their kanda';? '. .. ? . •. ..' .;::' ' ti ' ; :, tic and scale the day acid j/tar Jlrst'abotie VI-i ?igrisD; •??eals? . r :?:.' ;:y? ,R= ,w?. °;.,y.-•;;?'•;.; ?u the sssst tt pF . { _ k ,' 4n ,n 1' W . C;aramnriutsrat 'af•• rnus'^lnania.: ? y .1' G On MIS, the G'am' doy of j-472 ,r Wore-a- . a Notary Public ' in and for said`Countr and State, the underst¢ued officer, penoaolly appeared jKME WI=AM3 BM and THOMAS F. B.ZM :.•.: ' her . husband, id e (ormite/aetarayproven) to be this persosi a. whore name a are'. aubraribad to the udtkln Er?me ' and ocknosulafed that t by exavuted the same for the pnrpo therein oontaired. ` IX?i $'XESS WIIBRsop. -I have hereuist set "ad anti' gffl -.'PP ZXVM real. °`?'•-) 0 osshl , NOL try Psl,I?e ?•+.,•Y.-?lsanfiu?nuussalt? nF ?ruua?lvasiia • ?•sas. , on, this, the day u/ i 19 , before 7144 the aiulenipned oplcer, personally appeore¢;:.: .. krawu to ne(orsalig/acturiiy proven) to be the ps sus ' whose nano! " o-` ''gubxeriOed to the telthln • c• Instrument, and aeknoieledied that As. . aseartted the sane for the Purpose therein•oontained.;:'....,. IX H7T.YESS )YIIEREOI; I have hereunto set my /arid aril:': seal. ' .. .. tom"'. 'T 'CrV6 Gr#iF• that the precise addresa of the grantee herein i 049 .,4t-.e 3k7/72 n ??D eaOK ? ?Z4?ACe 922 i l•3 ? :y?:,5 .' ? C. ,Lt era .410 2?y19' ? Tax Parcel No. 10-21-0277-815 THIS DEED, A - MADE THIS o?3 day of , in the year of our Lord two thousand and five (2005) BETWEEN MARGARET E. SILER, widow, Grantor, ; o and c ERICA. SILEft and HEATHER A. SILER, co ? ,,, -+ husband and wife, 3 L Grantees: WITNESSETH, N that in consideration of ONE DOLLAR ($1.00), in hand p-a d, the receipt whereof is hereby acknowledged, the said grantor does hereby grant and convey to the said grantees, their heirs or assigns, ALL .THAT CERTAIN lot or tract of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the westerly line of Oak Avenue, said point being at a distance of 196 feet measured in a northerly direction along said Oak Avenue from the northerly line of Trindle Road; thence in a westerly direction along Lot No. 13, Block "S", on the Plan of Lots hereinafter mentioned, 150 feet to a point; thence in a northerly direction along Lot No. 5, Block "S", on said Plan, 50 feet to a point; thence in an easterly direction along Lot No. 15, Block "S", on said Plan, 150 feet to a point on the westerly line of Oak Avenue; thence along southerly direction 50 feet to a point, the Place of BEGINNING. Oak Avenue, in a BEING Lot No. 14, Block "S", on the Plan of Oakwood Park, as laid out by the Pennsylvania Realty & Development Company, Which Plan of Lots is recorded in the Office for the recording of deeds, etc., in and for Cumberland County, Pennsylvania, in Plan Book 2, Page 59. EXHIBIT HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered as 56 Oak Avenue. BEING the same premises Marie Williams Bell and Thomas F. Bell, her husband, by deed dated March 6, 1972, and recorded March 28, 1972 in the Recorder's Office in and for Cumberland County, Pennsylvania, in Deed Book "N", Vol. 24, Page 920, conveyed unto Edward H. Siler and Margaret E. Siler, his wife. And the said Edward H. Siler died July 3, 1991 whereby sole title to said premises became vested in Margaret E. Siler, by virtue of the doctrine of survivorship incident to tenancies by the entireties, Grantor herein. THIS TRANSFER IS WHOLLY EXEMPT FROM REALTY TRANSFER TAX BECAUSE IT IS A TRANSFER- FROM MOTHER TO SON AND DAUGHTER- IN-LAW. TOGETHER with all and singular, the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances, to the same belonging, or in anywise appertaining and reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof, And also, all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, of the said parties of the first part, of, in, to or out of the said premises, and every part and parcel thereof with the appurtenances: TO HAVE AND TO HOLD, the said premises, with and singular the appurtenances, unto the said party of the second part, her heirs and assigns, to and for the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever. AND the said grantor hereby covenants and agrees that she will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said grantor has hereunto set her hand and seal the day and year first above written. Signed, Seated and Delivered AL rA A?4 the Presenc Margaret E. Sit ) ) FM 2W WrjJ35 Commonwealth of Pennsylvania ) County of Cumberland ss. On this, the day of rE 2005, before me, the undersigned officer, personally appeared MargareSiler known to me proven) to be the person whose name is subscribed to the within (instru.ment, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public NoWW SW ?9 Ex*nfth..Mv.„gn I do hereby certify that the precise residence and complete post office address of the within named grantees is 56 Oak Avenue, Camp Hill, PA 17011. 2006 Attorney for COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ss. RECORDED on this day of . the Recorder's Office of the said County, Deed Book A.D. 20_, in Vol. Page Given under my hand and the seal of the said • o, ?thg _d to above written. ,& is to be recorded In Cumberland County PA Recorder. DOOR 269 pO!?5cip` r ? , EXHIBIT 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17315 Defendant CIVIL ACTION - LAW NO. 07- 940 Civil Term NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de a stns demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demands y la notificaci6n. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la petici6n de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELFFONO A LA OFICINA CUY A DIRECCI6N SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Mark W. Allshouse Supreme Court No. 78041 Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17319 Defendant CIVIL ACTION LAW NO. 07- 940 Civil Term AMENDED COMPLAINT Plaintiff, Margaret Siler, by and through her attorneys, Mark W. Allshouse, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of The Pennsylvania State University state the following in support of this Complaint: STATEMENT OF FACTS 1. Plaintiff, Margaret Siler is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendants are Eric Siler, plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319 3. Prior to May 23rd, 2005, plaintiff was the sole owner of the residence located at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, (hereafter "the residence") as evidenced by the deed dated March 1972, and recorded in the 3 office of the Recorder of Deeds of Cumberland County in Deed Book 24N page 920. A true and correct copy of the deed is attached hereto and incorporated herein by reference as Exhibit "A." 4. Margaret Siler is currently 86 years old and is a widow with five adult children. 5. Plaintiff has had a knee operation, two hip operations, and she was in therapy for her back. As a result, plaintiff has limited ambulation without assistance. 6. Plaintiff is unable to perform routine household chores such as cooking, cleaning and laundry. 7. Due to her physical condition, plaintiff is dependent on the care of her children. 8. Plaintiff does not want to move into a nursing home. 9. Plaintiff cannot drive and therefore, she relies on her family members to take her to doctor appointments, grocery shopping, and the pharmacy. 10. After plaintiff lost her driver's license in 2003, defendants had numerous discussions with plaintiff and other family members concerning care arraignments for plaintiff. 11. Defendants were aware of plaintiff's medical conditions, requirements for her care, personal needs such as transportation, feeding and hygiene, and plaintiff s fear of moving into a nursing home. 12. Defendants participated in family discussions of plaintiff s care including, plaintiff's transportation needs to medical appointments and rehabilitative care, plaintiff s need for assistance with obtaining prescriptions and groceries, and plaintiff s need for assistance with personal hygiene recovering from surgeries. 4 13. Defendants told plaintiff and other family members that plaintiff would move in with plaintiff and renovate the house 14. By participating in family discussions about plaintiff s care in the future, defendants' actions inferred and inspired plaintiff s confidence that defendants would act plaintiffs best interest. 15. As a result of the above actions and representations, plaintiff trusted and relied on defendants to act in her best interests regarding her personal care and financial affairs. 16. Defendants offered and represented that if plaintiff would transfer the deed to them, defendants would move into the house and provide continued care for plaintiff. 17. Defendants also promised to repair the residence and to keep the residence maintained in a reasonable fashion. 18. On May 23rd, 2005, in reliance on defendant's promises, plaintiff executed a deed conveying to defendants her residence at 56 Oak Avenue Camp Hill, Pennsylvania 17011 in consideration for $1.00 together with defendants' promise to move into the residence and care for plaintiff. 19. Plaintiff was not represented by counsel at the deed transfer. The attorney conducting the deed transfer was chosen and paid by defendants. 20. The conveyance was recorded on June Wh, 2005, in the'office of the Recorder of Deeds of Cumberland County in Deed Book No. 269, page 1534. The deed purports to be an absolute conveyance of the premises to defendants. A true and 5 correct copy of the May 23, 2005 deed is attached hereto and incorporated herein by reference as Exhibit "B." 21. The deed was intended by plaintiff to be transferred as consideration for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence as offered. 22. Despite accepting title to the residence, defendants have not fulfilled their promises to plaintiff to repair and maintain her home or move into the residence and care for plaintiff. 23. In September, 2006, plaintiff, having no other options, asked defendants to reconvey the property to plaintiff so that she could repair the roof and the furnace because she was without heat. Defendants refused. 24. Plaintiff never intended to move out of her home when completing the above mentioned conveyance, but as a result of defendants breach of their obligations to plaintiff, may need to move to a place where care and assistance are available. 25. Plaintiff was harmed by transferring her house for consideration of one dollar. Plaintiff is no longer secure in her living arraignment because she no longer owns her house, she no longer possesses a major asset that she could use later to pay for her care. 26. Plaintiff may be ineligible for necessary government assistance because she has not transferred her house for value. Plaintiff cannot afford to repair the house if she cannot recover the benefits of investing money in home repairs. 6 COUNT I - UNDUE INFLUENCE 27. Paragraphs 1 through 26 of Plaintiffs complaint are hereby incorporated by reference as if set forth at length 28. There was a confidential relationship between defendants and plaintiff. 29. Defendants received a substantial benefit by acquiring title to the residence without giving valuable consideration. 30. Although Plaintiff may have possessed the requisite testamentary capacity on May 23, 2005, her weakened intellect and trust in family members made her susceptible to undue influence and manipulation by family members. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. 7 COUNT H - FRAUD 31. Paragraphs 1 through 26 of plaintiff s complaint are hereby incorporated by reference as if set forth at length 32. The conveyance was without valuable consideration as the recited consideration of one dollar was merely formal and not actually exchanged. 33. Defendants' promises to care for plaintiff and repair her home were inducements for the conveyance without which the conveyance would not have been made. 34. Defendants procured the execution of the deed by fraud by inducing Plaintiff to convey the residence with no intention of honoring the agreement. 35. The defendants now maintain control over and have title to the property described therein as the fruit of such fraud. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the 8 property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT III - BREACH OF CONTRACT 36. Paragraphs 1 through 26 of plaintiff s complaint are hereby incorporated by reference as if set forth at length. 37. Defendants orally promised to care for plaintiff and repair her home as consideration for plaintiff conveying the home to the defendants. 38. Defendants have failed to fulfill their obligations under the agreement between plaintiff and defendants 39. Defendants did not move into the residence. 40. Defendants are not providing care for the plaintiff. 41. Defendants refuse to maintain the residence and repair the furnace and roof. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; 9 (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action. COUNT IV - CONFIDENTIAL RELATIONSI11P 42. Paragraphs 1 through 26 of plaintiff s complaint are hereby incorporated by reference as if set forth at length. 43. Defendants and plaintiff did not deal on equal terms, because plaintiff trusted that defendants were acting in plaintiff s interest with other family members as a result of their previous actions, and defendants stated intent in providing for her care. 44. Plaintiff relied on the presentation that defendants would act in good faith in managing her affairs. 45. Plaintiff relied on defendants' representation of acting in plaintiff s interest and did not secure independent counsel for the deed transfer on her house. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; 10 (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; (f) the Court declare the deed transfer voidable by the grantor; and (g) such other relief as the Court may deem proper and necessary. COUNT V - BREACH OF FIDUCIARY DUTY 46. Paragraphs 1 through 26 of plaintiff's complaint are hereby incorporated by reference as if set forth at length. 47. The confidential relationship created a fiduciary duty between the parties. 48. As part of this duty, defendants were obligated to act in plaintiffs interest. 49. By transferring the house to themselves without providing for plaintiffs care, and depriving her of the security of owning her home, defendants failed to act in plaintiff s interest breaching their fiduciary duty to plaintiff,. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff, (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; 11 (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VI - NEGLIGENT MISREPRESENTATION 50. Paragraphs 1 through 26 of Plaintiff s complaint are hereby incorporated by reference as if set forth at length. 51. Defendant's representation that they would act in plaintiff s interest was either a negligent or reckless misrepresentation. 52. Defendants led plaintiff to believe that they would move in and care for her and the house if she transferred the deed. 53. When defendants determined they were not planning to move in with plaintiff or provide care for her, defendants should have communicated that to plaintiff clearly. 54. Defendants presented that they would move in and care for plaintiff intending these promises to cause plaintiff to transfer her house to them. 55. Plaintiff was injured by her action based on the reliance on defendants and she has lost the title to her home. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to 12 plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VII - INTENTIONAL MISREPRESENTATION 56. Paragraphs 1 through 26 of plaintiff s complaint are hereby incorporated by reference as if set forth at length. 57. Defendants' representation that they would act in plaintiffs interest was intentionally false or made recklessly as to whether it was false. 58. Defendants knew or should have known that they were not planning to move in with plaintiff or provide care for her and communicated that to plaintiff clearly. 59. Defendants made the representation with intent for plaintiff to rely on the representation by transferring her house to them. 60. Defendants had a confidential relationship with plaintiff, which justified plaintiff's reliance on defendants for advice. 61. Plaintiff was injured by her action based on the reliance on defendants. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, 13 transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VIII - UNJUST ENRICHMENT 62. Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length and is being pled in the alternative to Count III herin. 63. Defendants accepted the deed and appreciated benefits of future gains from the rent or the sale of plaintiffs house. 64. Defendants accepted and retained such benefits under circumstances that it would be inequitable for defendant to retain the benefit without payment of value. WHEREFORE, plaintiff prays: (a) that defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; 14 (b) that defendants be declared to hold the property as trustee for plaintiff; (c) that defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time defendants took title to the property; (d) if the defendants have already made any transfer for value of plaintiffs interest in any portion of the property, they be ordered to pay to plaintiff the amount of such consideration received or to be received; (e) if the defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. Dated: Respectfully Submitted, Mark W. Allshouse Supreme Court No. 78014 Brian McMorrow Certified Legal Intern Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 15 VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: Margaret Siler 16 CERTIFICATE OF SERVICE I, Brian McMorrow Certified Legal Intern with the Elder Law Clinic, The Dickinson School of Law, The Pennsylvania State University, certify that on November 18th, 2008, I served the foregoing Rule to Show Cause and Petition to Amend Complaint Pursuant to Pa. R.C.P. 1033, by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Philip M. Intrieri & Associates Attorney at Law 615 North 48" Street Harrisburg, PA 17111 Date: By: Brian McMorrow Certified Legal Intern The Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 17 EXHIBIT A x . of . :L: •.:[•- aw N+?. ..'i ' '' M, ?4 rk. Y . .. .. .. ..,, ..'Y ,' •?.' • .•' . -,Sol Dau .,X 1 i. .E..frN.. 2fd?. C4 1211 A,& St. 71N, r to • "ti 'y '. -'('N• ;;:i• jay .?,. •{... i..- r:•' ? Y.t ,,?. ( v -:r:?` VX .' :e?- at Sf• }??^-? ^' `,JK? iy • 511 .. y:T: .yu' ., 1..;.:, ? ?? .-p• :. y ?,+^ ?. ?n ,:. : ?..: iv;: ',t, ' '?:., yr v . : r.°•y?. Fr ' '?`S . ?:3•"'• '.s5,:' ,?` ::?:r':.,• '~ :ih...:i: •:.?,., .;?i .: jdd ;rtlada theday of i.i?:.a. the year'.:''`( ri_KK?gt •'?' 'Lj :• fl r4?r .71'lneteen hKJidred and "•80Y8ntw0 (1972) •i:k :.. .:r??h ?iTr'•' • r?:«?,?hn, J : . k _•?•.. r•!.. Y 1•J .•?.'1 . •. ?. •.M r. .'!•.N,.ty l?•ff???..•i?•!J':t M; •:•'r/',: MARIE WIa,LIAM3 HELL and THOMAS F.'BLLL, bar husband, of the Borough. -of Oamp -Hill :County of iCumberl.gnd, State of Pennsylvania, ORANTO k' µ ?.. . t+. ?LC :.i rM:i,17'.',:.7' ']i?'.N," •'!?: 'la.E'r n:•,:l'rl +?r5it:,M1• ';a'^,•?. •'sl• ,.:,?k ,••• EDWABD H. SILBB and NAROARET:3. snzBj.his xifs,F.ot'the Citv.of Harrisburg, 'Ooiuity of Dauphin, State of PAnnsy+lvania,: GRANTEES..„ t ?i. •?`i• yir s:.r+• --i?:. :e. 9^ •-,:. jltti? `: U?, .le lS.iV t"' J j:. rTy .'i.. 74,.a?' ,+r ., ?i'yr:5, ? •.... .:? C_? i,[i `;? ,,,ry,1J ..Y?t3TA'giSrtl?? That do oo?itideiatio>f °?' } • Ky` ,' `.'s 3eventeen Thousand Five Hundred and'00/100 (17,504 00)Y •."'.--= - : Dollars a` :' ! x. _:' f in hand paid, the receipt whereof tr hereby aekno4e4jed,.'the said grantors, do 'hereby jrant and convey to the said frantea.a " their lisirt and ;. ALL that. certain. lot:or traet•of land situate in the. Townehip of.Hampden, µj' a •? County' of Cumberland and State;af Pennsylvania, mars partioulirly bounded, and described as follows, to~vits- :s. BEGINNING -at•a?point"a1 the webtarly line of Oak,Avenne+ skid. point being 'i et aYdistance of one hundred ninety,-B x (196} feet measm-ed n,&. northerly dfrecti.on along.said Oak Avenue'fraa.the northerly line of Trindle Roads ':thence in a vasterly' direction along Lot No:.'73, Block W, on the Plan. of'Lote'hereinafterftentioned. ' one hundred fifty .(15014e t , No. 81ook',N3N, on add Plea; .="j='ty (50) feet to a pointx ; thence in an eastar],v „direction •along Lot No ;''35 :.Block' SN,' on.said Plan, one hundred fifty (150)'feet,.` .' to a point on'the westerly line of Oak Avenues ttienes'along ;Oak Avenue, .in a .:.; :• _ '.tic..,?• southerly direction fifty (50) feet to a point,' the'Placa, of BmINHIN6. BEING YLot.No. 14,,'Block e8a, on the Plan :of Oakwood Park, as ).ai.d out b35 th ' Pennsylvania Realty &*Deeelopment Com?s:ny,.which' Plan of Loan is recorded in the. Offi&a for the recording Hof deeds, .etc.,. in and for. Cumberlnnd County, Pennsylvania, : - is Plan' Book 2, Pago.-59. HAVING THEREON ERECTED a one-story stucco dwelling'bouse known and numbered as 56 Oak Avenue. ' eoauW4= .920 ExHIeRn 5 tit. 4. ¦ P . f. t .I I I •1 J I .I 1 I T M .i .t 1 1 I ' x s BEING the same.. Promises which'Joho G. Wieptling, Widower, by hie- deed dated the 28th day of No-mber ` . •`? ,1961, and reoorded'in the Office; of the.Reco£?der r:. of Doeds in'and for Cmlberland Cgnnty,.Peanayivaniy is Deed Book eJe; Vol. 20,:.?%, ??- Page 793, granted and. conveyed into Harigadilliamy Hek], of the tractors herein. , ` . ..The said JohnG. Wiestling died on Febrnarj 26,. 1.972. TOWWMP Cuslb. Soheo{ Dnt.twob. CO-. P; :; •'I', ?? 1.•ICc lile•w Tn"p, Ti?n•? J S 1•.I i4N Tr n1/w? Ta . ' ti ,;,•',' P-7,: o.b a. .R. ?;y W,O l.?1Y` Z2 C.r. ow D.M. C•L A __-b$ -Cc e11L CA A W ia• ' i { IV -82 r { . 116 4vt 1 11, ' 1 1 , ^t , ? RZ L• J i!tfa '•.•i'..,• 1 :f• •. ?e w.L.w. r..a.,??',wr • Y. rr w???....r..:: i.r ,.? jr i.. 11••.W ,•. " M R •'1 1 ,,•: :,, ?•• r.. ,.:,.,,:a • :, ..... L i ea?c-APB: 921 J. ' ' .. ?.` a'yV •'.t•':J,«Y,iV yy :4.. is `.'?:. UD the said rantora ? do hereb ''s- F + C MUD .:: t ?4 .U^I+ r.?-•- _ ?Warrant .- L ,1. •+? ^:,`'S• • -.°•'' _ .:• w,'•' ice', jr*i ie: `L i. Beaeral?Y ° .t1?6 properfU hereblj coirveUed. ' ,.:ir: ; #' = ' ; :: €+ .V, '. ... .. •!; •{'; :h:r/j'?F` •+. .?.,'•,•. ?..;'u;::"'6".• rt.?r :?` ?R1.`:i. ,+,`'••• - T+ ' . _ ,'?.4r+ }{*?r'1=?•r.`. .: r:;f:.ss?. ,'ii:L' ,+.+;.?„ r.:: •~?1v ??l : ka. ..kx• ''{ _ ^R:.. ?•`; :?. ,'?. J„ 1 "" r'pi vt*,.^'.l x:':,, •' r•AyF: ?,M1Y?:,j? #f.; y -uSw" •?lI4rr'taF'.?''•:J < .i ?':..F? ,r.!y'?• .. ;ty? : '• ?'•i :. ;n .- .:.:••+:••.'..; ''i 'r: ?r?'?,YJ'?,i .? . ??? -drantots e li.ererint`o 'iet.'their 7;attda,: and scale '•i' the day acid kcar Jirst'aborie wrltten:'r`+ ?ft?t[tT1? •?+ialCA •attlr ?Cli31Kt?1' ''? . ,?5 <•: : t:•. y:?• `.i:?' l• i.?? ? 4`.. s: ? F+.t tht rtstt rt of tK -I. Daiwa c • : ,I: y ` ZNI 41w_ .H' -V?. rya?.'n5• :X,.,. W r: QfmamQum?stiltl? 'nf#rnuI?lania ) & J z.at?, Siff. -of Sy +• On thl., do G day olL/ ..a NoWLry. Public in and for said'Comty and State as , :: as --d-Wined oDteer, penondly appearml . MARIE 111IT.IaAMB W1 and THOUS F. SELL.: . j;?j •i: ?' f•' .'?r' bar bus band, . y - t , . .', -{? . • :N''.. he tke'penow a whose name t+ are +. aKLrortbed to the idtAiw ?? • ' Ilk a (or watts/aetorlly prouau) to and aeknomled sd that t { •';'t LpEii?nw tT by ssYeated the some /or the parp Lhentn oontatued. a;?;. ........IN, g'.YESS W11S8BOF,•I have hersakf sat "ad and, off sue. i? ;.. '•i fs: ?,: Aa6iq Pu611e I ` •?,?• • 'y r OwnbwW i s's iflar 'fir t Z*- ?r Z I r ! '' v w 'ri ? ti j l'!!ti•,• :tit, .: :.ri.: +.. .;. -.'?. ',?r.?sisi't?tnttmsalt? uF ?sttus?lftatistt ' ?r_ "- "' `•' • on this, the day of 119 , La/ors »w y ° the aiulanigned o/?ear, pereoxolly appaarAd; 1 known to mo(orsaw"tority provsa)lo be the penow' iohws nanw? ?i : subsertbed to ilia uilthta. ; 1 r ?-' ^.` ' instrument, gait aakuomlad?ad that' 'he. . executed the sa»w /or the purpose thara wadatain.ed.::.e I I.Y WITNESS wVRRBOF; I have hereunto sat my hand a".'': saal. !,,, ?'• +"`' "f?.•.',r.. tin : ? .. .' ? .- .. '- ., ?r.:. :a_'.l• ;.fir.;":• .,. ?lereb U fer"-M that the precise address of the grantee: herein is vl, • i" --:? ooh' 2 .._.?. 3A717 . ; . enacWz4eiGE 922 -71 7 5'?' .•, .. 'I• .ia SFr:. :i.:,?. P, r . EXHIBIT B 2.oy1T x tax Parcel No. 10-21-0277-316 THIS DEED, r• MADE THIS oZt3 ? y of five (2005) ' in the year of our Lord two thousand and BETWEEN. MARGARET E. SILER, widow, _ c y F Grantor ' Z aa? and ERIC A. SILER and HEATHER A. SILER, rn .? husband and' wife, n Grantees: WITNESSETH, that in consideration of ONE DOLLAR ($1.00), in hand p- 2d, the receipt whereof is hereby acknowledged, the said grantor does hereby grant and convey to the said grantees, their heirs or assigns, ALL.THAT CERTAIN lot or tract of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the westerly line of Oak Avenue, said point being at a distance of 196 feet measured in a northerly direction along said Oak Avenue from the northerly line of 'bindle Road; thence in a westerly direction along Lot No. 13, Block "S", on the Plan of Lots hereinafter mentioned, 150 feet to a point; thence in a northerly direction along Lot No. 5, Block "S", on said Plan, 50 feet to a point; thence in an easterly direction along Lot No. 15, Block "S", on said Plan, 150 feet to a point on the westerly line of Oak Avenue; thence along Oak Avenue southerly direction 50 feet to a point, the Place of BEGINNING, ' in a BEING Lot No. 14, Block "S", on the Plan of Oakwood Park, as laid out by the Pennsylvania Realty & Development Company, which- Plan of Lots is recorded in the Office for the recording of deeds, etc., in and for Cumberland County, Pennsylvania, in Plan Book 2, Page 59. ' '' i EXHIBIT HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered as 56 Oak Avenue. BEING the same premises Marie Williams Bell and Thomas F. Bell, her husband, by deed dated March 6, 1972, and recorded March 28, 1972 in the Recorder's Office in and for Cumberland County, Pennsylvania, in Deed Book "N", Vol. 24, Page 920, conveyed unto Edward H. Siler and Margaret E. Siler, his wife. And the said Edward H. Siler died July 3, 1991 whereby sole title to said premises became vested in Margaret E. Siler, by virtue of the doctrine of survivorship incident to tenancies by the entireties, Grantor herein. THIS TRANSFER IS WHOLLY EXEMPT FROM REALTY TRANSFER TAX BECAUSE IT IS A TRANSFER FROM MOTHER TO SON AND DAUGHTER- IN-LAW. TOGETHER with all and singular, the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances, to the same belonging, or in anywise appertaining and reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof; And also, all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, of the said parties of the first part, of in, to or out of the said premises, and every part and parcel thereof, with the appurtenances: TO HAVE AND TO HOLD, the said premises, with and singular the appurtenances, unto the said party of the second part, her heirs and assigns, to and for the only proper use, benefit and behoof of the said party of the second part, her . heirs and assigns forever. AND the said grantor hereby covenants and agrees that she willwarrant specially the property hereby conveyed. IN WITNESS WHEREOF, said grantor has hereunto set her hand and seal the day and year first above written. Signed, Sealed and Delivered ' the Presen Margaret E. Sil) re 2W PAcrjjV r - Commonwealth of Pennsylvania ) County of Cumberland ss. On this, thec a day of d ?cz?`,: officer, personally append Margaret' E Siler 2005, before me, the undersigned proven) to be the person whose name is subscribed too the within ?in satisfactorily acknowledged that he executed same for the strument, and IN WITNESS WHEREOF, I hereunto set y hand and ofcti'all seal. -= Q Notary Public LM Y! W! ! ??i I do hereby certify that the precise residence and complete post office address of the within named grantees is 56 Oak Avenue, Camp Hill, pA 17011. 2005 Attorney for COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss. RECORDED on this day of the Recorders Office of the said Coup y A.D. 20____, in ty, Deed Book Vol. Page Given under my hand and the seal of the said d tQ above written. ' ?dNis to be record Tn Cumberland Counh' pAd Recorder. 9OOK 269 CERTIFICATE OF SERVICE I, Brian McMorrow Certified Legal Intern with the Elder Law Clinic, The Dickinson School of Law, The Pennsylvania State University, certify that on December 5th, 2008, I served the foregoing Rule to Show Cause and Petition to Amend Complaint Pursuant to Pa. R.C.P. 1033, by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Philip M. Intrieri & Associates Attorney at Law 615 North 48th Street Harrisburg, PA 17111 Date: ! 2/ p y 8 By: %?'^ Brian McMorrow Certified Legal Intern The Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 l ` f .. r f T ac ' ;;` ?J x?g MARGARET SILER, Plaintiff vs. ERIC SILER and HEATHER SILER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-940 CIVIL IN RE: PLAINTIFF'S MOTION FOR LEAVE OF COURT TO FILE AN AMENDED COMPLAINT ORDER AND NOW, this 9 day of December, 2008, a brief argument on the plaintiff's motion to file an amended complaint is set for Friday, January 16, 2009, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. ? Mark W. Allshouse, Esquire Elder Law Clinic ,,/Khilip M. Intrieri & Associates For the Defendants Arn (20pks m; I LC BY THE COURT, s? _?„- ?y ? 6..-., ?.r. 'j r. ?3" ?" ,c . ??'' k y? `. ? is 1?.. + • ?? T ? -? F^_.?.f l INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. Attomey at Law 615 North 4e Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. I.D.: 76117 MARGARET SILER Plaintiff vs ERIC A. SILER HEATHER A. SILER Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA : CIVIL ACTION: LAW : No. 07- 940 CIVIL TERM DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE OF COURT TO FILE AN AMENDED COMPLAINT AND NOW, come the Defendants, Eric and Heather Siler, who file this response to Plaintiffs Motion to Amend the Complaint, accompanied by the attached Brief in Opposition and Memorandum of Law, and in support thereof, answers as follows: 1-3. Admitted. 4. Admitted with clarification: The degree of plaintiffs reliance on the care of her children is a matter for the trier of fact. 5. Admitted as to the filing of the action. All assertions of fact contained herein are denied. 6. Denied. This averment is both false and misleading. While the facts asserted are valid, (with the exception that defendants "managed plaintiffs affairs"), these facts were not revealed during discovery, and were not unknown when the original complaint was filed. See: Defendants' Brief in Opposition, at pp. 4-8. 7. Admitted, as to the filing of the additional causes of action only. 8. Denied. Defendants do have further discovery pending, and the admission of the five proposed new causes of action would expand this process. 9-11. Admitted. NEW MATTER 12. The proposed amendments, because they sound in tort or fraud, are barred by the applicable two year statute of limitations. See: Defendants' Brief in Opposition. 13. The proposed amendments fail to state claims upon which relief can be granted, and thus fail for reasons of futility and legal insufficiency. See: Defendants' Brief in Opposition. 14. This matter is scheduled for oral argument on Friday, January 16, 2009, before the Honorable Judge Kevin A. Hess. 15. Local Rule 208.3 (a)(4) allows the Court to provide for briefing and argument upon the filing of a motion as necessary. 2. 16. Plaintiff's motion to amend presents extensive matters of law, and briefing would be helpful to a determination of the issues presented. WHEREFORE, defendants pray this Honorable Court grant leave to file the attached Brief in Opposition to Plaintiff's Motion to Amend Complaint, and further, allow the plaintiff to file a responsive brief should the plaintiff choose to do so. WHEREFORE, upon review of defendants' brief and any response thereto, defendants request this Honorable Court deny plaintiffs motion to amend the complaint to add counts of confidential relationship, breach of fiduciary duty, negligent and intentional misrepresentation, and unjust enrichment. WHEREFORE further, upon review of defendants' brief and any response thereto, defendants request this Honorable Court reject plaintiffs attempt, if any, to shift the traditional burden of proof to defendants, until the matter can be appropriately decided at the pre-trial stage, and upon submission of clear and convincing evidence that plaintiff had a confidential relationship with defendants. Respectfully submitted, Date Philip M. Intrieri, Esq. Attorney for Defendants 3. INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 41r Street Harrisburg, PA 17111-3625 (717) 564-6969 Attomey I. D. # 76117 PMILaw@verizon.net CERTIFICATE OF SERVICE 1, Philip M. Intrieri, Esq., do hereby certify that on January 2009, 1 served a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE OF COURT TO FILE AN AMENDED COMPLAINT and BRIEF IN SUPPORT THEREOF, by causing the documents to be deposited in the United States Mail, first class postage prepaid, to the following: Mark W. Allshouse, Esq. Brian McMorrow Dickinson Elder Law Clinic 45 North Pitt Street Carlisle, PA 17013 Date Philip M. Intrieri, Esq. Attorney At Law 615 North 48th Street Harrisburg, PA 17111 (717) 564-6969 Atty. ID # 76117 INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. Attorney at Law 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. I . D.: 76117 COVER PAGE MARGARET SILER Plaintiff vs ERIC A. SILER HEATHER A. SILER Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA : CIVIL ACTION: LAW No. 07- 940 CIVIL TERM BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO AMEND COMPLAINT BEFORE THE HONORABLE KEVIN A. HESS 115 ' ;-' 0 0 7 Date Philip M. Intrieri, Esq. Attorney for Defendants TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................. ii. 1. STATEMENT OF FACTS / PROCEDURAL HISTORY .................. 1. 2. GENERAL STATEMENT OF QUESTIONS INVOLVED ................. 3. 3. LEGAL AUTHORITY TO AMEND A COMPLAINT ......................... 4. 4. THE STATUTE OF LIMITATIONS and DISCOVERY RULE ............ 4. PROPOSED NEW CAUSES OF ACTION 5. CONFIDENTIAL RELATIONSHIP / BREACH OF FIDUCIARY DUTY.. 8. 6. NEGLIGENT and INTENTIONAL MISREPRESENTATION ............ 14. 7. UNJUST ENRICHMENT ......................................................... 16. 8. CONCLUSION ...................................................................... 19. TABLE OF AUTHORITIES CASES Em e Baselice v. Franciscan Friars Assumption BVM Province. Inc ................... 5,6 879 A.2d 270 (Pa. Super, 2005), appeal denied, 891 A.2d 729 Conner v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983) ................. 12 D.A. Hill Co. v. Clevetrust Realty Investors, 573 A.2d 1005 (Pa. 1990)....... 18 eToll. Inc. v. Elias/Savion Advertising, 811 A.2d 10 (Pa. Super, 2002).......... 14 Hercules v. Jones, 609 A.2d 837 (Pa. Super, 1992) .................................. 17 Hutchison v. Luddy, 870 A.2d 766 (Pa. 2005) ......................................... 10 InfoSAGE Inc. v. Mellon Ventures. L.P., 896 A.2d 616 (Pa. Super, 2006)..... 10 In re: Estate of Evasew, 584 A.2d 910 (Pa. 1990) ........................ 8, 9,11,12,13 In re: Estate of Luongo, 823 A.2d 942 (Pa. Super, 2003) .......................... 8 appeal denied, 847 A.2d 1287 Koken v. Colonial Assurance Co., 885 A.2d 1078 (Pa. Cmwlth, 2005)........ 9 Konidaris v. Portnoff Law Associates, 953 A.2d 1231 (Pa. 2008) .............. 16 Mancini v. Yavorek, 61 Pa. D. & C.4"' (Northumberland, 2003)............ 12,14,16 Matos v. Rivera, 648 A.2d 337, (Pa. Super, 1994), appeal ......................... 4 denied, 658 A.2d 795. McCown v. Fraser, 192 A. 674 (Pa. 1937) ............................................. 9 Mellev v. Pioneer Bank, 834 A.2d 1191 (Pa. Super, 2003) ..................... 6,8,10 FE Page Morse v. Lower Merion School District, 132 F.3d 902, 906 .................... 4,9 (3d Cir, 1997) Paves v. Corson, 801 A.2d 546 (Pa. 2002) ............................................ 10 Rivello v. New Jersey Auto. Full Ins. Underwriting Assn., 638 A.2d 253... 14,15 (Pa. Super, 1994) Romah v. Hygenic Sanitation Co., 705 A.2d 841 (Pa. Super, 1997).......... 4,16 Sevast v. Kakouras, 915 A.2d. 1147 (Pa. 2007) .................................. 16,17 Stoeckinaer v. Presidential Fin. Corp. of Delaware Valley ........................ 18 948 A.2d 828 (Pa. Super, 2008) The Brickman Group. Ltd. v. CGU Ins. Co., 865 A.2d 918 ........................ 4 (Pa. Super, 2004). Thomas v. Seaman, 304 A.2d 134, (Pa. 1973) ....................................... . 12 Warehime v. Warehime, 761 A.2d 1138 (Pa. 2000) ................................. 10 Wilson Area School District v. Skeg)ton, 895 A.2d 1250 (Pa. 2006) ............. 17 STATUTES 42 Pa. C.S.A. Sec. 5524(7) ............................................................... 5 42 Pa. C.S.A. Sec. 5525(a)(4) ............................................................ 16 RULES OF COURT Pa. R.C.P. 1033 ............................................................................... 4 U INTRIERI A ASSOCIATES Philip M. Intrieri, Esq. Attomey at Law 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. I.D.: 76117 MARGARET SILER IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA Plaintiff vs CIVIL ACTION: LAW ERIC A. SILER HEATHER A. SILER Defendants : No. 07- 940 CIVIL TERM BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION TO AMEND COMPLAINT AND NOW, come Defendants, Eric and Heather Siler, by and through their attorney, Philip M. Intrieri, Esq., who file this Brief in Opposition to Plaintiff's Motion to Amend the Complaint, and in support thereof present the following Memorandum of Law: 1: STATEMENT OF FACTS / PROCEDURAL HISTORY Eric and Heather Siler are the son and daughter-in-law of Margaret Siler. Around March of 2005, Margaret entered into discussions with Eric and Heather regarding Mother's intent to gift to them residential property she owned at 56 Oak Avenue in Camp Hill. Accordingly, on May 23, 2005, she executed a deed granting Eric and Heather full ownership of that property. The transfer and deed was handled and prepared by Attomey R. Mark Thomas. This attorney was chosen by Eric and Heather due to his convenient location. They had no previous nor subsequent relationship with Mr. Thomas. On the day of the transaction, Attomey Thomas explained to all parties that the transfer was a gift, and outlined the tax consequences of that gift in a writing he had Eric acknowledge. Attomey Thomas also stated later in writing that there was nothing in Mother's demeanor that caused him to question her intent, nor was there any mention of any side agreement with regard to the property, other than Mother was going to continue to reside there. See: Defendants' Answer, Exhibits 1 and 2. Mother continues to reside at the property, and is cared for by her daughter, who also lives there, and by the remainder of her family. Eric and Heather have paid all the property taxes on the residence since the transfer, and have conducted some repairs thereon. In September, 2006, after becoming dissatisfied with discussions and efforts on roof and fumace repair, Mother Margaret changed her mind about gifting the house to Eric and Heather, and requested they convey the property back to her. Eric and Heather declined. See: Plaintiffs complaint, at 13. Margaret commenced this action on February 20, 2007, bringing claims for Undue Influence, Fraud and Breach of Contract. Defendants filed an Answer with New Matter and Counterclaims on March 19, 2007. Discovery has commenced, and further discovery is pending. On November 20, 2008, the Plaintiff filed an abortive attempt to amend her original complaint, which was apparently rejected for failure to comply with local rules. On December 5, 2008, the Plaintiff again filed the instant Motion for Leave to Amend. 2. Plaintiff proposes to amend her original complaint to add five additional counts, which she frames as Confidential Relationship, Breach of Fiduciary Duty, Negligent Misrepresentation, Intentional Misrepresentation, and Unjust Enrichment. Defendants Eric and Heather Siler object to the proposed amendments because, as they sound either in tort or fraud, they are presented well past the applicable two year statute of limitations. Defendants further argue that the discovery rule can not be applied here to toll the statute, because the Plaintiff has discovered nothing new. Defendants further object on grounds that the amendments fail to state claims upon which relief can be granted. Plaintiffs Motion for Leave to Amend, and Defendants' objections, are now before this Court for disposition. The Honorable Judge Kevin A. Hess has scheduled oral argument for January 16, 2009. 2: GENERAL STATEMENT OF QUESTIONS INVOLVED 1. Should Plaintiffs Motion to Amend be denied because the proposed amendments are filed beyond the statute of limitations? Suggested answer: Yes. 2. Should the Plaintiffs Motion to Amend be denied because the proposed amendments fail to state claims upon which relief can be granted? Suggested answer: Yes. 3. Can the Discovery Rule be employed under the facts presented to toll the statute of limitations? Suggested answer: No. 3. 3: LEGAL AUTHORITY TO AMEND A COMPLAINT A party may amend a complaint pursuant to Pa. R.C.P 1033. The right to amend is to be liberally construed. Romah v. HvQenic Sanitation Co., 705 A.2d 841 (Pa. Super, 1997), affirmed, 737 A.2d 249. However, amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action. Romah, supra. A complaint states a new cause of action if the amendments propose a different theory or different kind of negligence from those which have been previously raised, or if the operative facts supporting the claim are changed. Matos v. Rivera, 648 A.2d 337, (Pa. Super, 1994), appeal denied, 658 A.2d 795. Further, amendment will not be permitted when the amendment would be futile, i.e., where a party will be unable to state a claim upon which relief can be granted. The Bdckman Group. Ltd. v. CGU Ins. Co., 865 A.2d 918, (Pa. Super, 2004). When testing the legal sufficiency of a complaint, the court need not credit the plaintiff's "bald assertions" or "legal conclusions". Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir, 1997). Moreover, unsupported conclusions of fact and unwarranted inferences contained in the complaint should not be accepted by the court. Id, at 906, n.8. It is defendants' position that, applying the above law to the case at bar, the Court should reject all five of the proposed additional causes of action, as explained below. 4: THE STATUTE OF LIMITATIONS and DISCOVERY RULE Since defendants will be arguing that the statute of limitations applies to bar all five proposed new causes of action, for purposes of brevity the general facts supporting this conclusion will be outlined here. The operative statute under limitation of actions states as follows: 4. " Two year limitation. The following actions and proceedings must be commenced within two years: (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter." 42 Pa. C.S.A. Sec. 5524(7). The two year limitations period governing tort claims based on intentional conduct, negligence and fraud begins to run as soon as the right to institute and maintain a suit arises. Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270 (Pa. Super, 2005), appeal denied, 891 A.2d 729. Our facts, which are readily ascertainable by the record, show that the deed transfer which is the core point of controversy for this case occurred May 23, 2005. Plaintiffs Exhibit B. Plaintiff further avers that, sometime after that date, the defendants failed to fulfill promises to move into the residence, and repair and maintain the home. Plaintiff's old complaint at 9, new complaint at 22. While these averments are undated, certainly her cause of action accrued at that point, meaning a point prior to her request to have the residence deeded back to her. However the conclusive date, by plaintiff's own admission, occurred some sixteen months after the deed transfer, in September 2006. She states as follows "In September, 2006, plaintiff, having no other options, asked defendants to reconvey the property to plaintiff so that she could repair the roof and the furnace because she was without heat. Defendants refused." Plaintiffs old complaint at 13, new complaint at 23. This clearly demonstrates that plaintiff had the right to maintain a suit, at the latest, by the end of September, 2006. Since the instant amendments were filed December 5, 2008, it is beyond question that they are presented several months after the expiration of the two year statute of limitations. As such they are barred by the operation of the statute. It only remains to demonstrate that the five proposed new causes of action sound in tort or fraud, (discussed specifically in the next sections), and the above argument is dispositive of the entire matter. 5. The Court need not even reach the question of whether the five amendments are legally sufficient to state a claim, however the defendant will present argument below to that effect in the interest of being thorough. We turn now to the question of whether the discovery rule can operate in this case to toll the statute. Defendants posit that the discovery rule can not be applied here. "The discovery rule is a judicially created device which tolls the running of the applicable statute of limitations until that point when the plaintiff knows or reasonably should know: 1) that he has been injured, and 2) that his injury has been caused by another party's conduct. The limitations period begins to run when the injured party possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress." Mellev v. Pioneer Bank, 834 A.2d 1191 (Pa. Super, 2003), (citations omitted). When considering the discovery rule, a court should bear in mind that a lack of knowledge, mistake, or misunderstanding do not toll the running of the statute of limitations. Baselice, supra. It seems that the plaintiff is aware that the amendments could be barred by the statute of limitations, because they attempt in their Motion to Amend to support the effort by alleging they have uncovered new information in the process of discovery. Plaintiff states, at para. 6, that these facts "were not known at the time the original complaint was filed." It is a baseless contention. The above averment contains a reasonable summary of these "unknown" facts, and thus we repeat it in full: "6. Discovery revealed additional facts, including the defendants' admitted knowledge of plaintiff's medical conditions, defendant's involvement in family discussion of plaintiff's care, and plaintiff's trust and reasonable reliance upon defendants in (sic) consultation and managing her affairs which were not known at the time the original complaint was filed." Plaintiffs Motion for Leave to Amend, at 6. See also the Amended Complaint, paragraphs 10, 14,15,19. See also: NOTE 1. NOTE 1: Plaintiff has engaged in a shell game by taking factual averments contained in their original complaint, renumbering them, splitting some, and placing them in different order in their amended complaint. We list these here, to ensure they are not viewed as "newly uncovered facts": New averment 5 is old averment 10. New 6 is old 12. New 7 is old 10. New 8 is old 14, but reworded. New 9 is old 11. New 13,16,17,22 is old 9. New 18 is old 5, with one phrase added. New 21 is old 8. New 23 is old 13. New 24 is old 14. 6. An analysis of the facts contained in plaintiffs averment 6 above, in conjunction with the existing record, demonstrate they were well known to the plaintiff at the time the original complaint was prepared, and were absolutely not uncovered during discovery six months later. Moreover the plaintiff was in full possession of these facts well before the original complaint was filed. We parse out averment 6 and point out the following: 1) Of course the defendants had knowledge of plaintiffs medical conditions; she is their mother and mother in law and assisted her along with the remainder of the family, as any son and daughter would. These facts are contained in the plaintiffs original complaint, at 10,11 and 12, and acknowledged in defendant's answer, at 10,11 and 12. To say the plaintiff had no idea her son knew of her medical conditions until discovery is absurd. 2) Of course the defendants participated in family discussions regarding Mother's care. Mother was certainly present and aware of this at the time they occurred. In fact, Mother presented the alleged obligations that arose from these discussions as a breach of contract in her original complaint. See, e.g. plaintiff s original complaint at 9,14,21,24, and 25, and defendants' answer at 25. The plaintiff will not be heard to say these discussions led to breached promises in her original complaint, but say in her motion to amend that these discussions were somehow recently discovered or unknown when the original complaint was filed. 3) The plaintiff alleges her "trust and reasonable reliance upon defendants in consultation and managing her affairs..." Again, it is absurd to assert she only recently discovered this trust. She states further this trust and reliance was unknown when the original complaint was filed. However, these concepts were already asserted in her original complaint, at 10,11 and 18. Plaintiffs averments in paragraph 6 are patently false. Such antics should not be countenanced by the Court. We bear in mind that in order for facts such as discussions between the parties, faith and reliance, and knowledge of medical conditions to be 7. relevant and material, they must be based on events which occurred prior to the May 23, 2005 deed transfer. The plaintiff can not argue now, some 3'h years or more later, that she did not have ample opportunity to develop claims based on those facts before now. Similarly, the initial round of discovery occurred between the parties in August/September, 2007. Even if discovery did reveal additional facts which could support new causes of action, the passage of some fourteen months has placed the plaintiff beyond the statute of limitations for new counts based in tort or fraud. This is not a case of discovery suddenly revealing new critical facts which support new causes of action; rather, it is simply a matter of a plaintiff wishing she had done more to embellish facts already at her disposal. The time for this remedy has expired. Counsel's inexperience also will not toll the statute. In re: Estate of Luongo, 823 A.2d 942 (Pa. Super, 2003), appeal denied, 847 A.2d 1287. Because the plaintiff was in full possession of all facts necessary to place her on notice of a need to investigate to determine if suit should be brought, and possession of those facts was gained over two years prior to plaintiffs attempt to amend, any new cause of action based on such facts is barred by law when brought after the expiration of the applicable statute of limitations. For this reason, defendants urge this Court to dismiss the proposed amendments. We turn now to a discussion of each of the proposed new causes of action, the characterization of each as sounding in tort or fraud, and further, whether they state a valid cause of action. 5: CONFIDENTIAL RELATIONSHIP / BREACH OF FIDUCIARY DUTY We discuss these counts together as they are intertwined in law. In fact, Black's Law Dictionary defines the terms fiduciary duty and confidential relation synonymously. Black's Law Dictionary, 6t' Ed. 1990. Breach of a confidential relationship is a fraud. In re: Estate of Evasew, 584 A.2d 910 (Pa. 1990). 8. Breach of fiduciary duty is also a fraud. Koken v. Colonial Assurance Co., 885 A.2d 1078 (Pa. Cmwlth, 2005). As such, they fall within the two year statute of limitations, and fail for the reasons described above. In rare cases, a breach of fiduciary duty has been held to arise from a contract action. Mellen, supra. However plaintiffs amended count 4 (confidential relation) discusses reliance, trust, dealing on unequal terms, and misrepresentation, and this is clearly couched in terms of fraud. Count 5, (fiduciary duty) relies completely on count 4, stating "The confidential relationship created a fiduciary duty between the parties." (Plaintiff's amended complaint, at 47.) Further counts 4 and 5 request essentially the same relief. Therefore, both counts 4 and 5 sound in fraud, and are barred by the two year statute. The next question is whether each fail by reason of legal insufficiency. "A confidential relationship is deemed to exist whenever the relative position of the parties is such that one has power and means to take advantage of or exercise undue influence over the other." Evasew, supra, quoting McCown v. Fraser, 192 A. 674 (Pa. 1937). By definition, the mere existence of kinship is not enough to give rise to a confidential relation. The problem with plaintiffs proposed amendment to include this count is that it fails completely to state any facts which show that the defendants had the power and means to influence their mother. Count 4 contains conclusory averments that the parties did not deal on equal terms and that mom trusted defendants. Yet the Court need not credit these bald allegations. Morse, supra. Plaintiff must allege what power the defendants supposedly had, and how they exercised that power. It is axiomatic that fraud must be pled with specificity. For this reason, count 4 falls, for failure to state a claim upon which relief can be granted. The same discussion with regard to count 5, breach of fiduciary duty, highlights even more clearly the deficiency in the amended pleading. First, we 9. recognize the circular reasoning in count 5, wherein the plaintiff claims, at 47, that "The confidential relationship created a fiduciary duty..." Pleading one cause of action as support for another, when they are essentially synonymous terms is proof of nothing. An examination of the case law in this area is helpful to our discussion. Breaches of fiduciary duty have been held to exist in the following types of cases: a) In a priest-penitent relationship, where sexual molestation occurred over a seven year period, and the victim was mildly retarded. Hutchison v. Luddv, 870 A.2d 766 (Pa. 2005). b) Where a son and daughter fleeced their mother out of some $600,000, where son was a doctor and had his mother admitted to the hospital, prescribed medication, and had her sign a power of attorney. Also, where mother was alone and moved in with daughter after a 20 year estrangement, and when mother complained, the daughter evicted her. Both son and daughter gave themselves and others large gifts of cash and jewelry. Paves v. Corson, 801 A.2d 546 (Pa. 2002). c) Where a brother used his controlling interest in the voting stock of Hanover Foods, which he held as a trustee, to retain his chairmanship, allegedly to the detriment of another brother and sister. Here, his fiduciary duty was well established in law, since a trustee owes a duty of absolute loyalty to trust beneficiaries. Warehime v. Warehime, 761 A.2d 1138 (Pa. 2000). See also, InfoSAGE Inc. v. Mellon Ventures. L.P., 896 A.2d 616 (Pa. Super, 2006), where the fiduciary duty of a company director to promote common interests, as opposed to personal interests, is established by our Business Corporation Law. d) Where a bank allowed a mother, acting as a parent and guardian, to deposit checks in her personal account, where the funds were clearly restricted on the face of the checks to be held in trust for her two minor daughters. Mellev, supra. A close examination of these cases reveals that in order to establish a breach of fiduciary duty/confidential relationship, the plaintiff must show and 10. plead the existence of either a statutory duty, some type of agency like guardian/ward, priest/penitent, lawyeddient, or that the defendant employed some type of artifice or device by which the defendant gained the power and means to take advantage of the plaintiff. Evasew, supra. Both the plaintiff's original complaint, and the amended version, fail to state these essential elements. The record (which consists of the pleadings, interrogatories, requests for production of documents, and active As pendens), shows the defendants, Eric and Heather, were not agents of their mother. They did not exercise constant advantage over a seven year period. They were not constant visitors. Mother is not retarded. Eric and Heather did not hold a power of attorney to act on their mother's behalf. They did not control any of her funds or investments. They did not pay her bills. They neither prescribed nor administered medication. They did not take advantage of a family financial trust. They did not abuse majority voting powers in a family business. They did not live with mother and thus did not control her living arrangement. Mother did not live alone. Mother did not rely exclusively on Eric and Heather for care and home repair. They did not draft her will, or manage her affairs. They did not receive any funds of the plaintiff as a guardian or otherwise and misappropriate them. In this case, plaintiff has merely adduced facts which show a kinship relationship, discussions on mother's care and home repair, and help with transportation. Other family members participated in these activities along with the defendants. These are matters which happen on a daily basis with most common mother-son and family relationships. They do not by themselves support a finding of confidential relationship or fiduciary status. If the opposite were true, then every son driving with mom on the way to the grocery store who said "someday, I'm gonna fix your roof" would have difficulty taking under her will, due to undue advantage. Plaintiffs position defies logic. Our Supreme Court has emphasized that much more power and means of influence are needed to support rescission of a deed. "Undue influence which 11. will avoid a deed is such influence as is obtained by excessive importunity, superiority of will or mind, or by other means constraining the grantor to do what he is unable to refuse..." Thomas v. Seaman, 304 A.2d 134, at 138, (Pa. 1973). Excessive importunity means to press or urge with troublesome persistence. Plaintiffs complaint is completely devoid of any averments which show the defendants had opportunities so numerous that they were able to overcome the will of the plaintiff. Further, there are no dates as to when such things may have occurred. Therefore, for all of the above reasons, plaintiff's request to amend the complaint to add counts 4 and 5, for breach of a confidential relationship and breach of fiduciary duty should be denied, for failure to state claims upon which relief can be granted. Defendants are aware that plaintiff's original complaint contained an unsupported averment of confidential relationship as part of count 1, undue influence, at paragraph 16, to wit: "there was a confidential relationship between defendants and plaintiff". Defendants are also aware that the right to amend a complaint can include claims that "merely amplify" an earlier non-specific pleading. Mancini v. Yavorek, 61 Pa. D. & C.0 (Northumberiand, 2003), quoting Conner v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). However plaintiff is attempting here to transform one sentence pled in support of undue influence into a fresh cause of action. Further plaintiff's attempt to amend the complaint by including confidential relationship as a stand alone count does much more than merely amplify the original. It could, without objection, establish a prima facia case for breach of a confidential relationship, which could change the posture of the entire case. This is because a confidential relationship, if established, could shift the burden of proof to the defendants. Heretofore, the plaintiff would have had substantial difficulty shifting the burden of proof based on their single sentence allegation in the original complaint. The Evasew case is instructive on the operation of the burden shifting 12. provisions gained by demonstration of a confidential relationship. As a general rule, fraud must be pled and proven with specificity. Where a fiduciary relationship exists and one party has gained an advantage in a transaction, the general rule is "somewhat relaxed". In that case the advantaged party has "... the burden of proving fairness, honesty, integrity... no abuse of confidence, good faith, and the act by which he benefited was the free, voluntary and independent act of the other party, done with full knowledge of its purpose and effect." And further, where it is certain the parties interacted on unequal terms, where the plaintiff demonstrates the other party's superior knowledge, overmastering influence, weakness, dependence, or justifiable trust, the transaction is presumed void. At this third level, the defendant has the burden of showing not only the above badges of fairness, but that"... he communicated his interest in the transaction and all information he had which was important for the other to know in order to enable him to judge the value of his property." Evasew, supra, at Lexis 4. It is defendants' position that, not only is the claim of the existence of a confidential relationship presented past the statute of limitations, but both the old and new versions of the complaint are insufficient to state the claim. This is because both versions fail to aver facts supporting the defendants' supposed power and influence. Evasew was a case wherein an appraiser hired by an estate to value two properties bought one for a substantially subpar price. Our Supreme Court held a confidential relationship existed between the estate and appraiser, and upheld restraint of the sale. In a lively dissent, Justice Zappala, joined by Chief Justice Nix, disagreed that a confidential relationship existed because the appraiser was only retained to value the property, and not to sell it. The executrix was free to reject the offer. Id., at Lexis 6. However, even the majority pointed out that, to show a confidential relationship, it is insufficient to merely state that confidence and trust existed on one side, without a showing of domination and influence on the other side. Id., at Lexis 5. 13. Based on all of the above reasoning, defendants urge this Honorable Court to deny leave to amend to add counts 4 and 5. These counts are presented beyond the statute of limitations, and further fail to state a claim upon which relief can be granted, since they fail to adduce facts stating defendants' means, power, and influence over plaintiff. Further, defendants urge this Court to reject plaintiffs attempt to shift the traditional burden of proof to defendants. 6: NEGLIGENT and INTENTIONAL MISREPRESENTATION Negligent and intentional misrepresentation are fraud claims. eToll. Inc. v. Elias/Savion Advertising, 811 A.2d 10 (Pa. Super, 2002). As such, amended counts 6 and 7 are presented past the statute of limitations and fail for this reason alone. As fraud claims they must be presented with particularity and plaintiff's attempt fails for this reason as well. Rivello v. New Jersey Auto. Full Ins. Underwritin Assn., 638 A.2d 253 (Pa. Super, 1994). The elements necessary to establish these claims are outlined as follows: "A claim of intentional misrepresentation requires plaintiff to allege facts which show a material misrepresentation is made with, at least, recklessness as to its truth with the intent to mislead another who justifiably relies upon the misrepresentation to her detriment. Negligent misrepresentation requires the same showing except the one representing the material fact need not have knowledge of its falsity or act with recklessness with respect to its falsity, but only make the misrepresentation under circumstances in which one ought to have known its falsity." Mancini, supra (citations omitted). Plaintiff's counts 6 and 7 merely recite the schoolbook elements of negligent and intentional misrepresentation with nothing more. As stated previously, a court need not credit bald assertions and legal conclusions when testing the legal sufficiency of a complaint. Morse, supra. This is of special import when alleging a claim based in fraud, which demands particularity. An examination of the proposed amendments demonstrate that plaintiff has failed to develop these claims with even minimal particularity. 14. By way of example, plaintiff avers at paragraphs 51 and 52, that defendants represented they would "act in plaintiffs interest... ", and"... move in and care for her and the house..." Yet there are no factual averments as to when this move would take place, in what room or rooms defendants would live, and what form the alleged promise of "care" would take place; i.e., cooking, cleaning, paying for a private caregiver, or funding a nursing home or critical care facility. We bear in mind that an essential element of negligent and intentional misrepresentation is that the representations were material. This means that the alleged misrepresentations were of such significance that they overcame mother's free will and served as inducements to transfer a deed. Thus it is insufficient to plead a promise of home repair without any averment as to the substantial necessity for such repair. The house was not falling over nor under citation for conditions of inhabitability. Similarly it is insufficient to plead a promise of personal care without a single averment plaintiffs care was inadequate. In other words, there should be at least some factual basis to support the contention that a promise of personal care was so awesome it induced mother to transfer a deed. The parties acknowledge that mother lived, and still lives with one daughter and her male companion. Further, mom has two sons and another daughter who reside minutes away. If there is any assertion that her care at the hands of the daughter who lives with her was so inadequate mom needed to give away a house, then defendants are alarmed, since mom is receiving the same care today. Further counts 6 and 7 can not be admitted by arguing they merely amplify claims brought forth in the original complaint. They are new causes of action, based on different theory, with substantially reduced levels of proof. Fraud, ,a claim asserted in the original complaint, requires an outright fraudulent utterance. Rivello. On the other hand, intentional or negligent representation only require recklessness as to truth, or a showing that the accused party ought to have 15. known of the falsity. Mancini. Therefore, admission of these counts would do more than amplify prior claims; it would cause defendants to undergo a substantial change in position. It is impermissible to allow a new cause of action after the running of the statute. Romah. Therefore, plaintiffs request for leave to amend to add counts 6 and 7 should be denied, on grounds of the statute of limitations, the failure to state claims sounding in fraud with particularity, and the failure to assert defendants' alleged statements were of such materiality they overcame plaintiffs free will. 7: UNJUST ENRICHMENT While it is elementary to demonstrate the expiration of the statute of limitations for plaintiff's first four proposed amendments, their claim for unjust enrichment requires a more extensive analysis. This is because unjust enrichment can arise from both quasi-contractual grounds and grounds of fraud. But see: Note 2. Actions which sound in quasi-contract, or contract implied in law carry a four year filing limit, and plaintiff is within that time period. 42 Pa. C.S.A. Sec. 5525 (a)(4). Sevast v. Kakouras, 915 A.2d. 1147 (Pa. 2007). Thus as a threshold matter we must decide whether plaintiff's instant claim sounds in quasi-contract or fraud. It is unquestionably a claim arising from fraud. We contrast the two legal theories: Quasi-contract "An action based on unjust enrichment is an action which sounds in quasi- contract or contract implied in law. [They] are distinguished from express contracts or contracts implied in fact [because they] are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises. They are obligations created by law for reasons of justice.„ Sevast, supra, at Lexis 6, (citations omitted). Note 2: In yet another case, our Supreme Court recently characterized in dicta unjust enrichment as a tort, which would carry a two year filing limit. Konidaris v. Portnoff Law Associates, 953 A.2d 1231 (Pa. 2008). 16. Fraud "Constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if permitted to retain it. The necessity for such a trust may arise from circumstances evidencing fraud, duress, undue influence or mistake. The controlling factor in determining whether a constructive trust should be imposed is whether it is necessary to prevent unjust enrichment. One who seeks imposition of a constructive trust must do so by dear, direct, precise and convincing evidence." Hercules v. Jones, 609 A.2d 837 (Pa. Super 1992), at Lexis 5. An examination of plaintiffs amended count 8 shows, both in the averments and relief requested, that it is based in fraud. First, it claims inequitable circumstances. (Plaintiffs amended complaint, at 64). It requests in the ad damnum clause a trust be declared. It further requests the defendants reconvey the property back to plaintiff. All of these points are characteristic of an unjust enrichment theory based in fraud, as described in Hercules. Moreover, nowhere in amended count 8, or in any of plaintiffs pleadings does the plaintiff claim the defendant should have their supposed obligations "created by law for reasons of justice", as described in Sevast. Certainly, plaintiff never seeks enforcement of the oft repeated obligations of the defendants to move in with her, care for her, and maintain the house. Performance of these obligations would be a standard remedy for one seeking damages on quasi- contractual theory. For the above reasons, we conclude plaintiffs request to amend her complaint by including count 8, for unjust enrichment, springs from fraud and should be barred by operation of the two year statute of limitations. It is well-established that the doctrine of unjust enrichment is not applicable when the relationship of the parties is founded upon a contract. This is because the mutual obligations and duties of the parties are governed by the contract itself, without need to resort to "off contract" theories of recovery. Wilson Area School District v. Skenton, 895 A.2d 1250 (Pa. 2006). Consequently the only way plaintiff can proceed with proposed count 8 is if this Court holds it 17. sounds in quasi-contractual theory. Thus, in the interest of being complete, we will address whether this count claiming unjust enrichment states a claim upon which relief can be granted. The three elements of an unjust enrichment claim are "... benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value." Stoeckinger v. Presidential Fin. Cora of Delaware Valley, 948 A.2d 828 (Pa. Super, 2008). With regard to the first element, the defendants have not received nor realized any benefit from the deed transfer. The record shows that defendants have neither sold, rented, borrowed on or assumed occupancy of the property in question. In fact, by paying the property taxes due each year the transfer has done nothing but negatively affected defendants' bank account. The plaintiff has only herself to blame for this fact, which can not be contested, since plaintiff filed and indexed a Praecipe for Lis Pendens at the same term and docket number on the day she filed her original complaint. This has tied up the marketability of the property, and thus, has prevented defendants from realizing any benefit whatsoever from the deed transaction. The plaintiff will not be heard to claim defendants received a benefit when their own filing prevented it. "A party asserting unjust enrichment cannot merely allege its own loss, but must demonstrate that the enriched party has in fact been benefited." D.A. Hill Co. v. Clevetrust Realty Investors, 573 A.2d 1005 (Pa. 1990). Simply put, this cause of action has not matured or accrued. The benefit must be "in fact", not future or theoretical. With regard to the third element, inequitable circumstances, defendants have exhaustively discussed why plaintiffs other assertions of confidential relationship, breach of fiduciary duty, and negligent and intentional misrepresentation fail to state a claim, and thus will not repeat these arguments here. Absent a basis for these other claims, plaintiff can show no inequity. 18. Certainty plaintiff has made no attempt in count 8 to develop any new facts supporting unjust enrichment beyond a mere recitation of its elements. 8: CONCLUSION Plaintiffs five proposed amendments are presented past the expiration of the statute of limitations, and further, fail to state claims upon which relief can be granted. For these reasons, plaintiff's request for leave to amend the complaint should be denied. Amendment of a complaint is a serious matter. It is not intended to be a fishing expedition for college credit. Even a cursory review of the applicable law would have revealed that plaintiffs first four claims are presented past the expiration of the statute, and consequently presentation of these claims is both frivolous and lacking in good faith. In particular, plaintiff's motion at averment 6, alleging discovery revealed additional facts, is a clear attempt to mislead the Court. This has caused the defendants to undergo substantial time and expense in responding to plaintiffs motion. Such conduct should not be condoned by the Court. Respectfully submitted, Date: /,r/ 15 o Philip M. Intrieri, Esq. Attorney for Defendants 19. - -n ?n s JAN 0 6 2009 MARGARET SILER IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA Plaintiff vs CIVIL ACTION: LAW ERIC A. SILER HEATHER A. SILER Defendants : No. 07- 940 CIVIL TERM ORDER OF COURT AND NOW, this day of , 2009, it is hereby ordered that: 1. Plaintiff's motion to amend to add count 4, confidential relationship is GRANTED / DENIED. 2. Plaintiff's motion to amend to add count 5, breach of fiduciary duty is GRANTED / DENIED. 3. Plaintiff's motion to amend to add count 6, negligent misrepresentation is GRANTED / DENIED. 4. Plaintiff's motion to amend to add count 7, intentional misrepresentation is GRANTED / DENIED. 5. Plaintiffs motion to amend to add count 8, unjust enrichment, is GRANTED / DENIED. 6. Plaintiff is directed to file a responsive brief within o?,6 days. 77. Oral argument on plaintiff's motion to amend is continued until 2009, at a% 30 ai?st/pm. BY THE COURT 44 KevA A. Hess, J. ,DISTRIBUTION: Z Mark W. Allshouse, Esq., Elder Law Cli c ,/Philip M. Intried, Esq., Intried & Associates Wpt'e's rnwe? t Llt-cc 1?g1? ?? ? ?..? ?: ? a `, "' MARGARET SILER, 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V ERIC SILER HEATHER SILER 413 Mountain View Terrace, Etters, PA 17319 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-940 CIVIL TERM IN RE: MOTION TO FILE AMENDED COMPLAINT ORDER OF COURT AND NOW, this 5th day of February, 2009, the motion of the plaintiff to amend complaint is granted. This order is entered without prejudice to the defendant to raise any and all defenses. Eric Ladley Certified Legal Intern Mark Allshouse, Esquire The Elder Law Clinic Philip M. Intrieri, Esquire For the Defendant By the Court, 104 Kevi 7 . Hess, J. :bg K : I I V 01 83.E 6602 A6 i ? ,u'r c 3 i.l. 3C rJ1 '1? 3 031H- ? t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 ERIC SILER HEATHER SILER Plaintiff V. CIVIL ACTION - LAW NO. 07- 940 Civil Term 413 Mountain View Terrace Etters, PA 17315 Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 I Y 7 1 NOTICIA USTED HA SIDO DEMANDADA EN CORTE. Si usted quiere defenderse de a stas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demands y la notificaci6n. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la petici6n de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODGADO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELFFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 ark W. Allsho /S' preme Court P.78041 Elder Law Clini The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, Pennsylvania 17013-2899 Phone: (717) 240-5152 2 V t t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET SILER 56 Oak Avenue Camp Hill, PA 17011 Plaintiff V. ERIC SILER HEATHER SILER 413 Mountain View Terrace Etters, PA 17319 Defendant NO. 07- 940 Civil Term AMENDED COMPLAINT Plaintiff, Margaret Siler, by and through her attorneys, Mark W. Allshouse, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of The Pennsylvania State University state the following in support of this Complaint: STATEMENT OF FACTS 1. Plaintiff, Margaret Siler is an adult individual residing at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 1701 L 2. Defendants are Eric Siler, Plaintiffs son, and his wife Heather Siler, who reside at 413 Mountain View Terrace, Etters, York County, Pennsylvania, 17319 3. Prior to May 23rd, 2005, plaintiff was the sole owner of the residence located at 56 Oak Avenue, Camp Hill, Cumberland County, Pennsylvania 17011, (hereafter "the residence") as evidenced by the deed dated March 1972, and recorded in the CIVIL ACTION - LAW 3 T I s r office of the Recorder of Deeds of Cumberland County in Deed Book 24N page 920. A true and correct copy of the deed is attached hereto and incorporated herein by reference as Exhibit "A." 4. Margaret Siler is currently 86 years old and is a widow with five adult children. 5. Plaintiff has had a knee operation and two hip operations, and she was in therapy for her back. As a result, plaintiff has limited ambulation without assistance. 6. Plaintiff is unable to perform routine household chores such as cooking, cleaning and laundry. 7. Due to her physical condition, plaintiff is dependent on the care of her children. 8. Plaintiff does not want to move into a nursing home. 9. Plaintiff cannot drive, and therefore, she relies on her family members to take her to doctor appointments, grocery shopping, and the pharmacy. 10. After Plaintiff lost her driver's license in 2003, Defendants had numerous discussions with Plaintiff and other family members concerning care arrangements for Plaintiff. 11. Defendants were aware of Plaintiff s medical conditions, requirements for her care, personal needs such as transportation, feeding and hygiene, and Plaintiff's fear of moving into a nursing home. 12. Defendants participated in family discussions of Plaintiff's care, including Plaintiff's need to be transported to medical appointments and rehabilitative care, Plaintiff's need for assistance with obtaining prescriptions and groceries, and Plaintiff's need for assistance with personal hygiene recovering from surgeries. 4 T 1 13. Defendants told Plaintiff and other family members that Defendants would move in with Plaintiff and renovate the house 14. By participating in family discussions about Plaintiff s care in the future, Defendants' actions implied and inspired Plaintiff's confidence that Defendants would act Plaintiff's best interest. 15. As a result of the above actions and representations, Plaintiff trusted and relied on Defendants to act in her best interests regarding her personal care and financial affairs. 16. Defendants offered and represented that if Plaintiff would transfer the deed to them, Defendants would move into the house and provide continued care for Plaintiff. 17. Defendants also promised to repair the residence and to keep the residence maintained in a reasonable fashion. 18. On May 23rd, 2005, in reliance on Defendant's promises, Plaintiff executed a deed conveying to Defendants her residence at 56 Oak Avenue Camp Hill,. Pennsylvania 17011 in consideration for $1.00 together with Defendants' promise to move into the residence and care for Plaintiff. 19. Plaintiff was not represented by counsel at the deed transfer. The attorney conducting the deed transfer was chosen and paid by Defendants. 20. The conveyance was recorded on June 9t', 2005, in the office of the Recorder of Deeds of Cumberland County in Deed Book No. 269, page 1534. The deed purports to be an absolute conveyance of the premises to Defendants. A true and 5 correct copy of the May 23, 2005 deed is attached hereto and incorporated herein by reference as Exhibit "B." 21. The deed was intended by Plaintiff to be transferred as consideration for Defendants moving in with Plaintiff, repairing her home and taking care of Plaintiff and the residence as offered. 22. Despite accepting title to the residence, Defendants have not fulfilled their promises to Plaintiff to repair and maintain her home or move into the residence and care for Plaintiff. 23. In September, 2006, Plaintiff, having no other options, asked Defendants to reconvey the property to Plaintiff so that she could repair the roof and the furnace because she was without heat. Defendants refused. 24. Plaintiff never intended to move out of her home when completing the above mentioned conveyance, but as a result of Defendants' breach of their obligations to Plaintiff, may need to move to a place where care and assistance are available. 25. Plaintiff was harmed by transferring her house for consideration of one dollar. Plaintiff is no longer secure in her living arraignment because she no longer owns her house, and she no longer possesses a major asset that she could use later to pay for her care. 26. Plaintiff may be ineligible for necessary government assistance because she has not transferred her house for value. Plaintiff cannot afford to repair the house if she cannot recover the benefits of investing money in home repairs. 6 I 1 1 ` COUNT I - UNDUE INFLUENCE 27. Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 28. There was a confidential relationship between Defendants and Plaintiff. 29. Defendants received a substantial benefit by acquiring title to the residence without giving valuable consideration. 30. Although Plaintiff may have possessed the requisite testamentary capacity on May 23, 2005, her weakened intellect and trust in family members made her susceptible to undue influence and manipulation by family members. WHEREFORE, Plaintiff prays: (a) that Defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that Defendants be declared to hold the property as trustee for Plaintiff; (c) that Defendants be ordered to grant, convey, assign, and transfer the property to Plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time Defendants took title to the property; (d) if Defendants have already made any transfer for value of Plaintiffs interest in any portion of the property, they be ordered to pay to Plaintiff the amount of such consideration received or to be received; (e) if Defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay Plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. 7 I , COUNT H - FRAUD 3 Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length 32. The conveyance was without valuable consideration as the recited consideration of one dollar was merely formal and not actually exchanged. 33. Defendants' promises to care for plaintiff and repair her home were inducements for the conveyance without which the conveyance would not have been made. 34. Defendants procured the execution of the deed by fraud by inducing Plaintiff to convey the residence with no intention of honoring the agreement. 35. Defendants now maintain control over and have title to the property described therein as the fruit of such fraud. WHEREFORE, Plaintiff prays: (a) that Defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that Defendants be declared to hold the property as trustee for Plaintiff, (c) that Defendants be ordered to grant, convey, assign, and transfer the property to Plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time Defendants took title to the property; (d) if Defendants have already made any transfer for value of Plaintiffs interest in any portion of the property, they be ordered to pay to Plaintiff the amount of such consideration received or to be received; (e) if Defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay Plaintiff the fair market value of the 8 I . I , property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT III - BREACH OF CONTRACT 36. Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 37. Defendants orally promised to care for Plaintiff and repair her home as consideration for Plaintiff conveying the home to the defendants. 38. Defendants have failed to fulfill their obligations under the agreement between Plaintiff and Defendants 39. Defendants did not move into the residence. 40. Defendants are not providing care for Plaintiff. 41. Defendants refuse to maintain the residence and repair the furnace and roof. WHEREFORE, Plaintiff prays: (a) that Defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that Defendants be declared to hold the property as trustee for Plaintiff; (c) that Defendants be ordered to grant, convey, assign, and transfer the property to Plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time Defendants took title to the property; (d) if Defendants have already made any transfer for value of Plaintiffs interest in any portion of the property, they be ordered to pay to Plaintiff the amount of such consideration received or to be received; 9 . / , (e) if Defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay Plaintiff the fair market value of the property at the time of the action. COUNT IV - CONFIDENTIAL RELATIONSHIP 42. Paragraphs 1 through 26 of Plaintiff s complaint are hereby incorporated by reference as if set forth at length. 43. Defendants and Plaintiff did not deal on equal terms, because Plaintiff trusted that Defendants were acting in Plaintiff s interest with other family members as a result of their previous actions, and Defendants stated intent in providing for her care. 44. Plaintiff relied on the representation that Defendants would act in good faith in managing her affairs. 45. Plaintiff relied on Defendants' representation of acting in Plaintiff s interest and did not secure independent counsel for the deed transfer on her house. WHEREFORE, Plaintiff prays: (a) that Defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that Defendants be declared to hold the property as trustee for Plaintiff; (c) that Defendants be ordered to grant, convey, assign, and transfer the property to Plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time Defendants took title to the property; 10 (d) if Defendants have already made any transfer for value of Plaintiffs interest in any portion of the property, they be ordered to pay to Plaintiff the amount of such consideration received or to be received; (e) if Defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay the plaintiff the fair market value of the property at the time of the action; (f) the Court declare the deed transfer voidable by the grantor; and (g) such other relief as the Court may deem proper and necessary. COUNT V - BREACH OF FIDUCIARY DUTY 46. Paragraphs 1 through 26 of Plaintiff's complaint are hereby incorporated by reference as if set forth at length. 47. The confidential relationship created a fiduciary duty between the parties. 48. As part of this duty, Defendants were obligated to act in Plaintiff's interest. 49. By transferring the house to themselves without providing for Plaintiff's care, and depriving her of the security of owning her home, Defendants failed to act in Plaintiff's interest breaching their fiduciary duty to Plaintiff. WHEREFORE, Plaintiff prays: (a) that Defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that Defendants be declared to hold the property as trustee for Plaintiff; (c) that Defendants be ordered to grant, convey, assign, and transfer the property to Plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time Defendants took title to the property; 11 (d) if Defendants have already made any transfer for value of Plaintiffs interest in any portion of the property, they be ordered to pay to Plaintiff the amount of such consideration received or to be received; (e) if Defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay Plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VI - NEGLIGENT MISREPRESENTATION 50. Paragraphs 1 through 26 of Plaintiff s complaint are hereby incorporated by reference as if set forth at length. 51. Defendants' representation that they would act in Plaintiff s interest was either a negligent or reckless misrepresentation. 52. Defendants led Plaintiff to believe that they would move in and care for her and the house if she transferred the deed. 53. When Defendants determined they were not planning to move in with Plaintiff or provide care for her, Defendants should have communicated that to Plaintiff clearly. 54. Defendants presented that they would move in and care for Plaintiff, intending these promises to cause Plaintiff to transfer her house to them. 55. Plaintiff was injured by her action based on the reliance on Defendants, and she has lost the title to her home. WHEREFORE, Plaintiff prays: (a) that Defendants be restrained and enjoined from granting, conveying, assigning, 12 I 1 / ` transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that Defendants be declared to hold the property as trustee for Plaintiff, (c) that Defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time Defendants took title to the property; (d) if Defendants have already made any transfer for value of Plaintiffs interest in any portion of the property, they be ordered to pay to Plaintiff the amount of such consideration received or to be received; (e) if Defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay Plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VII - INTENTIONAL MISREPRESENTATION 56. Paragraphs 1 through 26 of Plaintiff s complaint are hereby incorporated by reference as if set forth at length. 57. Defendants' representation that they would act in Plaintiff's interest was intentionally false or made recklessly as to whether it was false. 58. Defendants knew or should have known that they were not planning to move in with Plaintiff or provide care for her, and they should have communicated that to Plaintiff clearly. 59. Defendants made the representation with intent for Plaintiff to rely on the representation by transferring her house to them. 13 60. Defendants had a confidential relationship with Plaintiff, which justified Plaintiffs reliance on Defendants for advice. 61. Plaintiff was injured by her action based on the reliance on Defendants. WHEREFORE, Plaintiff prays: (a) that Defendants be restrained and enjoined from granting, conveying, assigning, transferring, mortgaging, or otherwise disposing of or encumbering the property; (b) that Defendants be declared to hold the property as trustee for Plaintiff; (c) that Defendants be ordered to grant, convey, assign, and transfer the property to plaintiff in fee simple, subject merely to such valid encumbrances as may have existed at the time Defendants took title to the property; (d) if Defendants have already made any transfer for value of Plaintiffs interest in any portion of the property, they be ordered to pay to Plaintiff the amount of such consideration received or to be received; (e) if Defendants do grant, convey, assign, transfer, mortgage, or otherwise dispose of or encumber the property, they be ordered to pay Plaintiff the fair market value of the property at the time of the action; and (f) such other relief as the Court may deem proper and necessary. COUNT VIII - UNJUST ENRICHMENT 62. Paragraphs 1 through 26 of Plaintiffs complaint are hereby incorporated by reference as if set forth at length and is being pled in the alternative to Count III herein. 63. Defendants accepted the deed and appreciated benefits of future gains from the rent or the sale of Plaintiff s house. 14 ,?- ;;N'r +• '"'?..`n'?' i. 'ice' t...,., tm ,oe[a x' F, . • 15x404~ Sd. Co. f:f l /wk l6 i?llar 7. to; ?? •• 4 •'y'• ;?. 'w.iv??r 'J.? . .r f ?!•'{. ?aJt..}C.:f•ir!y' j'•o?r.):6„ .,+.Ykt::. .:.i" I''<`'?`X. •. . ?.•y,r•l? i?S5 r•:i ?•},iy? .. y?.:tZ •. ?: ,y • ?7'„gds?,•'•li. {: r-,r?t t.?? ;,,,. ?:?? i ."?±.:` :l.t:i•.::. ?ri,Tfr.?•• ?,'rO .x''.;" •?`S:.f.-?1` ''j^:+?i?''T„•?,'Y•'•, 's,{;'?Y Y'" ' ??' ? . } :•?.y?.ii' .rya,... aiF ? ?b' '¢ 1, . ;• :b•{::;;; ` tic 40 .s ' 1F t1, ?t rr .. vKy i..r F. .9 .$ T `t: ?L f, 'S i 4 4 C. D. Of DAPOW StatrFO? Plnps72jraaia,: 5i8AYJ,;.1515.15' :°: .. 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' EOMTiRD H. • SIfSlC aRd MiRGARIi• E. 3LLLbItj': his wife •?zol tho CiSJ :o! Harrisbiarg, 'Qonatar ty / i+. 1?t `'. : •t ?« i.n^:+y7•' IM1-. fi ".} , ._/"`;•,y • . i:• ? r4 .•'i } , ?„ \ r °fr*rY i 5 ?? • t.r 'd: .?. Y?t?1CClri l?la¢?t That ? ooni?dei'aLioi? of ,•;. • ' ?. . • ::, • . • a • SersatssRShonaand Mrs $nodrrd ?aad :00/lO0 00}:,Ih?ar?, • n ' • ia? hand paid, th•srsoaipt whrroof ti hereby ackaww,[ed fed,•'Lhe raid iraritorr. do• 5: -1 • ?heraby,?i'drit anaT,'•`oonaay tq the said ¢rantes a „5 •their •, •r.'; "..•lieirt a?ut.asat.?ni,; r • ?.f. ? • :' , . • • ?•• .' . •..? ..: •. •• , ? /40•.4•• .. ? thaVOerttiR-lOt • OZ tS'a0ti' Of land Cltttate io the,, Township Of , HdlpdeR? j ••Oomty of Cmnber2aRd aacf•Statr?.ot=PaaneylvaRi.a, sofa P+e'tioulanlJ' bonded and ' .. described am follows ic'vits • 813MOM•at• a,poiat'oa the mbtarly+7lur of Odt,hroo<io) aaid,point being `' as 56 Oak Avenne. ? ;`. ?' . _ :. •.. ? 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X419' X THIS DEED, r? 0, MADE THIS o2+3 day of five (2005) Tax Pou I No. 10-21-0277415 , in the year of our Lord two thousand and BETWEEN MARGARET E. SILER, widow, Grantor, c z and ERIC A. SILER and HEATHER A. SUER, husband and wife, Grantees: WITNESSETH, that in consideration of ONE DOLLAR ($1.00), receipt whereof is hereby acknowledged, the said grantor does convey to the said grantees, their heirs or assigns, K-j 3 N M in hand p- hereby grant ALL THAT CERTAIN lot or tract of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the westerly line of 'Oak Avenue, said point being at a distance of 196 feet measured in a northerly direction along said Oak Avenue from the northerly line of Trindle Road; thence in a westerly direction along Lot No. 13, Block "S", on the Plan of Lots hereinafter mentioned, 150 feet to a point; thence in a northerly direction along Lot No. 5, Block "S", on said Plan, 50 feet to a point; thence in an easterly direction along Lot No. 15, Block "S", on said Plan, 150 feet to a point on the westerly line of Oak Avenue; thence along Oak Avenue, in a southerly direction 50 feet to a point, the Place of BEGINNING. BEING Lot No. 14, Block "S", on the Plan of Oakwood Park, as laid out by the Pennsylvania Realty & Development Company, which Plan of Lots is recorded in the Office for the recording of deeds, etc., in and for Cumberland County, Pennsylvania, in Plan Book 2, Page 59. I` a* Wdsm 7E7KH W ca ;; MC, o rn a o rn ? v m .a ?vv CA d, the and . . ii , ? W HAVING THEREON ERECTED a one-story stucco dwelling house known and numbered as 56 Oak Avenue. BEING the same premises Marie Williams Bell and Thomas F. Bell, her husband, by deed dated March 6, 1972, and recorded March 28, 1972 in the Recorder's Office in and for Cumberland County, Pennsylvania, in Deed Book W, Vol. 24, Page* 920, conveyed unto Edward H. Siler and Margaret E. Siler, his wife. And the said Edward H. Siler died July 3, 1991 whereby sole title to said premises became vested in Margaret E. Siler, by virtue of the doctrine of survivorship incident to tenancies by the entireties, Grantor herein. THIS TRANSFER IS WHOLLY EXEMPT FROM REALTY TRANSFER TAX BECAUSE IT IS A TRANSFER FROM MOTHER TO SON AND DAUGHTER- IN-LAW. TOGETHER with all and singular, the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances, to the same belonging, or in anywise appertaining and reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of every part and parcel thereof And also, all the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and equity, of the said parties of the first part, of in, to or out 'of the said premises, and every part and parcel thereof with the appurtenances: TO HAVE AND TO HOLD, the said premises, with and singular the appurtenances, unto the said party of the second part, her heirs and assigns, to and for the only proper use, benefit and behoof of the said party of the second part, her heirs and assigns forever. AND the said grantor hereby covenants and agrees that she willwarrant specially the property hereby conveyed. IN WITNESS WHEREOF, said grantor has hereunto set her hand and seal the day and year first above written. Signed, Sealed and Delivered the Presen e4 "A./4 } } Margaret E. Sil } } 5M 2W PAcfj,5,V '. . I I . W W Commonwealth of Pennsylvania ) County of Cumberland ) SS. On this, tboa day of d7 - , 2005, before me, the undersigned officer, personally appeared mar erRsiler, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. lip Notary Public s.r 11 Amy CWM* Nobly NO r OXM*MM ?a?No11.2= s I do hereby certify that the precise residence and complete post office address of the within named grantees is 56 Oak Avenue, Camp Hill, PA 17011. ?'t e?3 '2005 Attorney for JG?? COMMONWEALTH OF PENNSYLVANIA ) ss. COUNTY OF CUMBERLAND ) RECORDED on this day of . A.D. 20_, in the Recorder's Office of the said County, Deed Book . Vol. , Page Given under my hand and the seal of the said ° th to above written. dr jr is to be recorded In Cumberland Count}, PA Re order. OR 2699 po"1536 ;. , ? ? , I . , . . VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: ;? o fog Margaret Sile 1 . 11 . V CERTIFICATE OF SERVICE I, Eric Ladley, Certified Legal Intern with the Elder Law Clinic, The Dickinson School of Law, The Pennsylvania State University, certify that on February 24, 2009, I served the foregoing Rule to Show Cause and Petition to Amend Complaint Pursuant to Pa. R.C.P. 1033, by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Philip M. Intrieri & Associates Attorney at Law 615 North 48 h Street Harrisburg, PA 17111 t Date: February, 24, 2009 By: Eric Ladley Certified Legal Intern The Elder Law Clinic The Dickinson School of Law The Pennsylvania State University 150 South College Street Carlisle, PA 17013 _ ;. _ ?, ? 4?.! ? ? Y ` t ?4? ti -.i ??y.. r ? { f t ,,, _ ?, , r ;?.. ??f ., i ? ?-- i? ; =-? INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. Attomey at Law 615 North 48' Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. 1. D.: 76117 MARGARET SILER Plaintiff vs ERIC A. SILER HEATHER A. SILER Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA : CIVIL ACTION: LAW No. 07- 940 CIVIL TERM DEFENDANTS' PRELIMINARY OBJECTION TO COUNT EIGHT OF PLAINTIFF'S FIRST AMENDED COMPLAINT AND NOW, come the Defendants, Eric and Heather Siler, by and through their attorney, Philip M. Intried, Esq., who file this Preliminary Objection in the Nature of a Demurrer to Count 8 of Plaintiff's First Amended Complaint, pursuant to Pa. R.C.P 1028, and in support thereof, objects as follows: Plaintiff commenced this action for rescission of a deed granting defendants ownership of a property at 56 Oak Avenue in Camp Hill on February 20, 2007. The original complaint brought claims for Undue Influence, Fraud and Breach of Contract. 2. On February 5, 2009, after briefing and argument, the plaintiff was granted leave to amend her complaint by the Honorable Kevin A. Hess. The First Amended Complaint adds additional counts for Breach of Confidential Relationship, Breach of Fiduciary Duty, Negligent and Intentional Misrepresentation, and Unjust Enrichment. 3. The plaintiff has failed to plead the proper elements necessary to sustain a charge of unjust enrichment, and consequently count 8 fails by reason of legal insufficiency. 4. The three elements of an unjust enrichment claim are benefits conferred on defendants by the plaintiff, appreciation of such benefits, and acceptance and retention of such benefits under inequitable circumstances. 5. Plaintiff states in her First Amended Complaint, at averment 63, that "Defendants accepted the deed and appreciated benefits of future gains from the rent or sale of plaintiff's house." 6. Plaintiff has consequently failed to sufficiently plead the first element of an unjust enrichment claim, since a future, speculative or theoretical benefit is not a benefit in fact. 7. A possible future benefit is not an actual benefit received. 8. Defendants have never sold, rented, collateralized or transacted the house in any fashion. Defendants have never occupied the home. 9. Defendants have realized no monetary benefit from the deed transfer at issue. 10. Defendants have regularly paid all property taxes due on the 2. property, and thus ownership of the property has had only a negative impact on their finances. WHEREFORE, since plaintiff has not alleged that an actual benefit was conferred and received, defendants pray This Honorable Court sustain defendants' demurrer to plaintiffs claim of unjust enrichment, and strike Count 8 from plaintiff's first amended complaint. Respectfully submitted, 31 2--o Date IZI ? (- ?-- Philip M. Intried, Esquire Attorney for Defendants 3. INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 4e Street Harrisburg, PA 17111-3625 (717) 564-6969 Attorney 1. D. # 76117 PMILaw@verizon.net CERTIFICATE OF SERVICE I, Philip M. Intrieri, Esq., do hereby certify that on March , 2009, 1 served a true and correct copy of the foregoing DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFF'S FIRST AMENDED COMPLAINT, by causing the documents to be deposited in the United States Mail, first class postage prepaid, to the following: Mark W. Allshouse, Esq. Eric Ladley, CLI Dickinson Elder Law Clinic 45 North Pitt Street Carlisle, PA 17013 -5'// ? -od,'?- Date Philip M. Intrieri, Esq. Attorney At Law 615 North 48th Street Harrisburg, PA 17111 (717) 564-6969 Atty. ID # 76117 C') - C° ice rcn a_ tt_L CL N PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) ayA I I4r VS. S? l?r S ?I?r No. O 7- O r r Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint etc.): be?e,niCLr+1s PrQlI nn;nary Ob; c??on?nCoun-? ;a??t Pl4???' ?'s ?rs?'AMendec? 2. Identify all counsel who will argue cases: Gom??a??1'? (a) for plaintiffs: Erll(I LO XU cer?j` ?e.gakirn PA Izoi3 N\ e k P?11s? ous? s (b) for defendants: DI ) if An -4-' 1 _i r VT?4 N140-11 a,& (Name and A dress) (Name and Address) f'4+ S- + . (Arl;sle , FA 1-[ 013 M1 HU5 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: r Signature ' L rI C, Print your name 'PlaI t'-£? IV1?at'?,ar? 16- Z( © Date: Attorney for ?J INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. C`? G-? - ?, 4? °,v :?? ;::K ?.? ?; ? ?,? - - ?; , ?.? ?_' ?5 ?.,_ MARGARET SILER, Plaintiff V. ERIC A. SILER HEATHER A. SILER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007 - 0940 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTION BEFORE HESS, GUIDO, JJ. ORDER OF COURT AND NOW, this 8TH day of MAY, 2009, after reviewing the briefs filed by the parties and having heard argument thereon the Defendants' Preliminary Objection to Count 8 of Plaintiff's Amended Complaint is DISMISSED. Edward E. Guido, J. Mark W. Allshouse, Esquire 45 North Pitt Street Carlisle, Pa. 17013 Philip M. Intrieri, Esquire f % 615 North 48TH Street r (?? Harrisburg, Pa. 17111 :sld cc) ?E . Ct EJ ?? 5 L U Q Oar% c = a CV INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. Attomey at Law 615 North 48' Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. I . D.: 76117 MARGARET SILER Plaintiff vs ERIC A. SILER HEATHER A. SILER Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA : CIVIL ACTION: LAW No. 07- 940 CIVIL TERM DEFENDANTS' APPLICATION FOR AMENDED ORDER FOR PURPOSE OF INTERLOCUTORY APPEAL AND NOW, come the Defendants, Eric and Heather Siler, by and through their attomey, Philip M. Intried, Esq., who file this Application for Amendment of the Order of This Honorable Court entered May 8, 2009, which dismissed Defendants' Preliminary Objection in the Nature of a Demurrer to Count 8 of Plaintiff's First Amended Complaint, pursuant to Pa. R.A.P. 1311(b), and in support thereof, applies as follows: Plaintiff commenced this action for rescission of a deed granting defendants ownership of a property at 56 Oak Avenue in Camp Hill on February 20, 2007. The original complaint brought claims for Undue Influence, Fraud and Breach of Contract. 2. On February 5, 2009, after briefing and argument, the plaintiff was granted leave to amend her complaint by the Honorable Kevin A. Hess. The First Amended Complaint adds additional counts for Breach of Confidential Relationship, Breach of Fiduciary Duty, Negligent and Intentional Misrepresentation, and Unjust Enrichment. 3. On March 17, 2009, the Defendants filed a preliminary objection to Count 8 of plaintiffs First Amended Complaint, claiming the plaintiff had failed to plead the proper elements necessary to sustain a charge of unjust enrichment, and requesting the Court strike Count 8 for reasons of legal insufficiency. 4. The three elements of an unjust enrichment claim are benefits conferred on defendants by the plaintiff, appreciation of such benefits, and acceptance and retention of such benefits under inequitable circumstances. 5. Plaintiff states in her First Amended Complaint, at averment 63, that "Defendants accepted the deed and appreciated benefits of future gains from the rent or sale of plaintiffs house." 6. Defendants argued that plaintiff had consequently failed to sufficiently plead the first element of an unjust enrichment claim, since a future, speculative or theoretical benefit is not a benefit in fact. Defendants argued further that a possible future benefit is not an actual benefit received. 7. Defendants have never sold, rented, collateralized or transacted the house in any fashion. Defendants have never occupied the home. 8. Defendants have realized no monetary benefit from the deed transfer at issue. 2. 9. Defendants have regularly paid all property taxes due on the property, and thus ownership of the property has had only a negative impact on their finances. 10. Plaintiff never filed an answer to the factual averments of defendants' preliminary objection. 11. Both parties filed briefs in support of their respective positions, and defendants' preliminary objection to plaintiff's cause of action for unjust enrichment was entertained at Argument Court on April 29, 2009, before the Honorable Judges Kevin A. Hess and Edward E. Guido. 12. On May 8, 2009, defendants' preliminary objection was dismissed by order of the Honorable Edward E. Guido. Defendants now seek to amend this order, to apply for the statement specked in 42 Pa. C.S.A. 702(b), that the order sought to be reviewed involves a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the matter. 13. Defendants did seek the concurrence of opposing counsel on June 2, 2009, and plaintiff's counsel does not concur with the application. REASONS IN SUPPORT OF APPLICATION FOR AMENDMENT OF ORDER The facts are not in dispute. All seem to agree that mother transferred a house to son and daughter in 2007, and all concur that son and daughter, both before and after the commencement of litigation, never realized any gain from the transaction. The question at hand is whether mom can still maintain an action for unjust enrichment against son and daughter in the absence of present 3. enrichment, by fashioning a claim for future enrichment. Our appellate courts have consistently rejected claims for future, speculative or theoretical enrichment. On the other hand, our courts have exercised their powers of equity to impose a constructive trust on title to land in favor of a disadvantaged party where there are circumstances evidencing fraud, undue influence or abuse of a confidential relationship, in order to prevent unjust enrichment. We seek appellate review to explore the bounds of the doctrine of unjust enrichment, and in particular, whether that doctrine is sufficiently flexible to encompass situations where actual present enrichment does not exist. There is no question we are addressing a cause of action for future enrichment. Even in the posture of a demurrer, with the facts seen in the light most favorable to the non-moving party, plaintiff mom has never moved to amend her core cause of action in disputed count 8 wherein son and daughter are charged with accepting "the deed and appreciated benefits of future gains from the rent or sale of plaintiff's house." Plaintiffs First Amended Complaint, at 63. There is no doubt that, as a general proposition, a deed to a house confers a benefit, and becomes a benefit appreciated and received, which is all that is generally required to sustain the enrichment element of an unjust enrichment claim. However, under the unique facts of the instant case, the transfer of the deed has not been a benefit to son. It is black letter law that title to land confers a bundle of rights, and these rights are generally listed as the right to use, possess, dispose, exclude and enjoy. Black's Law Dictionary, 6t' Ed. 1991. It is beyond dispute that defendants have exercised none of these rights, and consequently, the transfer and receipt of a benefit has never occurred. As a result, mom brings an action for future enrichment, and a court rejecting a demurrer to such action must either completely abandon the prime element of enrichment, or maintain the fiction that, somehow, enrichment exists. 4. This is directly counter to our appellate direction that, when considering a demurrer, a court must reject unsupported conclusions of fact, and unwarranted inferences contained in a complaint. Morse v. Lower Merton School District, 132 F.3d 902, 906 (3d Cir, 1997). As a result, this case presents a controlling question of law about which there is substantial ground for difference of opinion, and it is a prime candidate for appellate review. It can be argued, as the plaintiff has, that the transfer of title to a house confers a present benefit; that merely because the defendants have never exercised any rights to the property, does not lead to the conclusion that holding title is not a benefit. Plaintiff then demonstrates the benefit by arguing that defendants could someday sell, someday rent, someday possess and occupy, and someday borrow against the equity. These assertions may or may not be true. There are two major flaws in such approach: First, these assertions are utterly incapable of proof, and second, the approach fully acknowledges the absence of a present benefit, which renders any cause of action for unjust enrichment legally insufficient because enrichment is just not there. Consequently plaintiff has advanced, and the 9t' District has recognized, a cause of action for future enrichment. In the opinion of the defense, there simply is no cause of action in Pennsylvania for unjust future possible maybe someday enrichment. However, if the 9t' District is going to allow such an action to proceed, it should not do so without explicit appellate authority. It bears noting that, while defendants have found no case directly on point, our appellate courts have consistently rejected claims of unjust enrichment where such claims reflect little or no gain for the advantaged party, or where the claim of enrichment is for future gain, speculative, or merely theoretical. These are: D.A. Hill Co. v. Clevetrust Realty Investors, 573 A.2d 1'005 (Pa. 1990), (no real benefit from a mall foreclosure, even though subcontractors incurred a loss), Fili i v. S. City of Erie, 968 A.2d 239 (Pa. Cmwlth 2009), (Mayor's successful defense of criminal charges conferred no actual benefit on city, even though mayor was pursuing economic development), Konidaris v. Portnoff Law Associates, 884 A.2d 348 (Pa. Cmwlth 2005), (possible benefit from future attorney fees not a present enrichment when fees were never paid), Boring v. Google, 598 F.Supp. 2d 695 (W.D. Pa, 2009), (enrichment claim rejected where benefit from trespass nominal at best), and Blackmon v. Iverson, 324 F.Supp. 2d 602 (E.D. Pa, 2003), (enrichment claim rejected when based on theory of misappropriation of a nickname or idea). The instant defendants, facing a claim of unjust enrichment wherein there is no demonstrable enrichment, are certainly similarly situated with the above-listed defendants. Thus, there are substantial grounds for a difference of opinion as to the application of the doctrine of unjust enrichment to our facts. The U.S. Supreme Court has emphasized, that to state a proper claim, a plaintiff "is required to plead facts sufficient to raise a right of relief above the speculative level." Bell Atlantic Corp. v. Twomblv, 550 U.S. 544, 127 S.Ct. 1955 (2007). The plaintiff, in argument, brings four cases to our attention which held °a deed to a home constitutes a benefit for purposes of unjust enrichment." (Chambers, Balazick, Moreland, Brasile, citations omitted, plaintiff's brief, at p.10). These cases held nothing of the sort. In these cases, (save for Balazick which discussed a bank account), the court addressed only the inequitable circumstances of a deed transfer, and lack of possession was not at issue. In other words, plaintiff's authorities only addressed the inequitable, or unjust element of unjust enrichment. None are on point with the instant dispute, where enrichment itself is in doubt, probably because it was presumed since parties or heirs were already in possession of the real estate. In fact, the matter of whether a claim for unjust enrichment can lie where the advantaged party has never exercised any beneficial right to real property appears to be a matter of first 6. impression in this Commonwealth. As such, appellate review is essential. Simply put, the decision of the 9"' District, if allowed to stand, represents a radical departure from basic and longstanding principles of law, including the duty to accept only well-pleaded facts when considering a demurrer, (future enrichment is a guess), the abandonment of the element of enrichment, (unjust enrichment requires both an enrichment and an injustice), and the plaintiff's duty to demonstrate a benefit in fact. Fili i, supra, Samuels v. Hendricks, 445 A.2d 1273 (Pa. Super, 1982), D.A. Hill Co., supra. Further, immediate review will serve to materially advance the ultimate disposition of the issue, since it may narrow the issues for the trier of fact, and will have necessary implications on plaintiff's companion claims for different species of fraud. The following questions would be presented for appellate review: Does a cause of action exist in Pennsylvania for unjust future enrichment? 2. Is the current doctrine of unjust enrichment sufficiently flexible to encompass facts where no enrichment currently exists, but which may lead to enrichment in the future? 3. Did the 9"' District impermissibly stretch the bounds of an unjust enrichment claim, by allowing a claim to proceed for theoretical or speculative enrichment? 4. Does the law of constructive trusts, which imposes a duty to reconvey title to property in cases of fraud, undue influence or mistake to prevent unjust enrichment, provide a cause of action for unjust future enrichment, or merely a remedy once unjust enrichment is demonstrated? 7. WHEREFORE, defendants pray This Honorable Court grant their application for amendment of the order dismissing their preliminary objection, to state that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter. Respectfully submitted, Cn.?o Date Philip M. Intried, Esquire Attorney for Defendants 8. MARGARET SILER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ERIC A. SILER NO. 2007 - 0940 CIVIL TERM HEATHER A. SILER, Defendants IN RE: DEFENDANTS' PRELIMINARY OBJECTION BEFORE HESS, GUIDO, JJ. ORDER OF COURT AND NOW, this 8TH day of MAY, 2009, after reviewing the briefs filed by the parties and having heard argument thereon the Defendants' Preliminary Objection to Count 8 of Plaintiff s Amended Complaint is DISMISSED. Edward E. Guido, J. Mark W. Allshouse, Esquire 45 North Pitt Street Carlisle, Pa. 17013 Philip M. Intrieri, Esquire 615 North 48TH Street Harrisburg, Pa. 17111 sld TRUE CCPy Fp-wt4 C''RD In Testimony whereof, i unto set my Mend and the seal of said Court at Carlisle, pa. 71* ......` ...... day of... ......, a4G??' Prothonotary INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 4e Street Harrisburg, PA 17111-3625 (717) 564-6969 Attorney I. D. # 76117 PMILaw@verizon.net CERTIFICATE OF SERVICE I, Philip M. Intrieri, Esq., do hereby certify that on June - , 2009, 1 served a true and correct copy of the foregoing DEFENDANTS' APPLICATION FOR AMENDMENT OF ORDER FOR PURPOSE OF INTERLOCUTORY APPEAL, by causing the documents to be deposited in the United States Mail, first class postage prepaid, to the following: Mark W. Allshouse, Esq. Dickinson Elder Law Clinic 45 North Pitt Street Carlisle, PA 17013 /Z-tsa Date Philip M. Intrieri, Esq. Attorney At Law 615 North 4e Street Harrisburg, PA 17111 (717) 564-6969 Atty. ID # 76117 FiLED-oFrCE O 7HE PR},, OTARI 2009 JUN -5 PM I2* Q 3 CUMBER ') CC{v' OY PD YLVW INTRIERI $ ASSOCIATES Philip M. Intrieri, Esq. 615 North 4e Street Harrisburg, PA 17111-3625 (717) 564-6969 Pa. Attorney I.D. 76117 PMILaw@verizon.net MARGARET SILER Plaintiff VS ERIC A. SILER HEATHER A. SILER Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA : CIVIL ACTION: LAW : JURY TRIAL DEMANDED : No. 07- 940 CIVIL TERM NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR 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 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. Attomey at Law 615 North 48th Street Harrisburg, PA 17111-3625 (717) 564-6969 Atty. I.D.: 76117 MARGARET SILER IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA Plaintiff vs CIVIL ACTION: LAW ERIC A. SILER JURY TRIAL DEMANDED HEATHER A. SILER Defendants : No. 07- 940 CIVIL TERM ANSWER WITH NEW MATTER AND COUNTERCLAIMS AND NOW, come Defendants, Eric and Heather Siler, by and through their attorney, Philip M. Intrieri, Esq., who files this Answer with New Matter and Counterclaims, to Plaintiff's First Amended Complaint, and in support thereof avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part. It is admitted that Margaret Siler underwent certain operations. Insofar as plaintiff during previous discovery refused to disclose even minimal information about these medical procedures, the remainder of this averment is denied. 6. Denied. Plaintiff is able to perform minor and low impact household chores. 7. Defendants are without sufficient information to form an answer. 8. Defendants are without sufficient information to form an answer. 9. Admitted in part. It is admitted plaintiff cannot drive. Defendants are without sufficient information to form an answer as to the remainder of this averment. 10. Admitted. 11. Admitted in part. It is admitted defendants were aware of plaintiff's general medical condition. Defendants are without information to form an answer as to the remainder of this averment. 12. Admitted. 13. Denied. It is denied defendants made any specific promises to plaintiff or other family members that they would renovate the house. 2. 14-15. No answer is required, insofar as defendants are not in possession of sufficient information to answer as to plaintiffs state of mind. 16. Denied. It is denied the conveyance of the deed was made in return for any offer or representation that defendants would move into the house or care for plaintiff. The transaction was a gift. 17. Denied. Although defendants voluntarily assisted with repairs, as any son and daughter in law would do, it is denied defendants made any promise to repair or maintain the residence. 18. Admitted in part. It is admitted the plaintiff executed the deed. It is denied the transfer was in consideration for any express or implied contract to move in with and care for plaintiff. 19. Admitted in part. It is admitted that defendants paid the attorney who conducted the transaction. Insofar as this attorney had no previous nor subsequent relationship with either party, and was chosen for convenience, the attorney's representation was neutral. 20. Admitted. The document speaks for itself. 21. Denied. Plaintiff's intent was to gift the property to the defendants. 22. Admitted in part. It is admitted that defendants have accepted title. It is denied such acceptance was in return for any promise to move in, repair or maintain the home, and care for plaintiff. 3. 23. Admitted in part. It is admitted that, in September, 2006, plaintiff requested defendants reconvey the property to her, and defendants declined. It is denied she stated the basis for her request was roof or furnace repair, inasmuch as defendant Eric Siler did repair the roof, and did remove debris around, and changed a fully blocked filter in the furnace, which were preventing the furnace from properly ventilating. It is denied the plaintiff was without heat; the unit in place at that time, while aged, was functioning. 24. Admitted in part. It is admitted plaintiff likely intended to remain in the home. It is denied defendants breached any obligation to plaintiff, since there was and is no legal obligation of care and assistance created by the real estate transfer chargeable to defendants. Further, adequate family arrangements are fully in place to provide for plaintiffs care. 25. Denied. Plaintiff has undergone no substantial change in position. 26. Denied, insofar as defendants are without knowledge of the rules regarding "government assistance". No answer is required as to the remainder of this averment, as it is conclusory and argumentative. 27. No answer required. 28. Denied. The mere existence of kinship does not give rise to a confidential relationship. 29. Denied. Defendants received no benefit from the transaction. By way of further answer, consideration is not required to make a valid gift. 4. 30. Admitted in part. The plaintiff did possess the requisite testamentary capacity on May 23, 2005, and further possessed the proper mental capacity to make a valid gift. It is denied that she acted under any form of diminished capacity, whether that be characterized as "weakened intellect and trust", or "susceptible to undue influence and manipulation", as those terms of art are legally understood and cognizable. 31. No answer required. 32. Admitted with clarification. Consideration is not a required element of a valid gift. Further the deed, as a document under seal, is valid without consideration. 33. Denied. Inasmuch as the defendants never made any express statements or promises to care for plaintiff or repair the property, such statements could not have formed an inducement for the plaintiff to convey the property to defendants. 34. No answer required to this conclusion of law. 35. Admitted in part. It is admitted that defendants have title to the property and intend to maintain overall control of their property. It is denied their ownership springs from fraud of any kind. Further, to the extent this averment constitutes a legal conclusion, no answer is required. 36. No answer is required. 37. Denied. See answers supra. S. 38. Is a conclusion of law and no answer is required. 39. Admitted. 40. Admitted with clarification. While defendants have in the past assisted in providing care for the plaintiff, as did all siblings in this area, plaintiffs counsel has denied defendants reasonable and meaningful contact with their mother. 41. Admitted in part. Defendants share responsibilities with the plaintiff, and other siblings to maintain the residence, and as such do not wholly shoulder every routine maintenance task. It is denied defendants failed to repair the furnace and roof, inasmuch as they had no legal obligation to do so, and inasmuch as defendant Eric Siler did in fact make roof repairs, furnishing materials valued at some $800, and labor, and did in fact ensure the furnace was ventilating properly. If further problems existed with the furnace, none were called to the attention of defendants. 42. No answer is required. 43-45. These averments contain conclusions of law, and no answer is required. 46. No answer is required. 47-49. These averments contain conclusions of law and argument, and no answer is required. 50. No answer is required. 6. 51. Is a conclusion of law, and no answer is required. 52. Denied. See answers supra. 53. Denied. Defendants never intended to move in with plaintiff. 54-55. Are conclusions of law, and no answer is required. 56. No answer required. 57. Is a conclusion of law to which no answer is required. 58. Denied as stated. Both plaintiff and defendants knew defendants were not planning to move in with plaintiff. 59-61. Are conclusions of law to which no answer is required. 62. No answer is required. 63-64. Are conclusions of law to which no answer is required. NEW MATTER 65. Defendants incorporate their responses to paragraphs 1 through 64 as if they were set forth in full, for all new matter, affirmative defenses, and counterclaims. 7. 66. The transfer of the real property in question was a gift from plaintiff to her son and daughter in law. Plaintiff knew defendants never planned to move in with her. 67. The plaintiff possessed the proper mental capacity to make a gift. 68. The plaintiff expressed the intent to give defendants the real property, in that she initiated the idea approximately two months prior to the transfer, attended a meeting with attorney R. Mark Thomas on May 23, 2005 regarding the gift, and signed and executed the deed granting the property to defendants. . 69. The plaintiff delivered the gifted property, as evidenced by the delivery of the deed. Prior to such delivery, she also had provided the defendants with the key to the house. 70. The defendants accepted the gift. 71. Attorney Thomas explained to the plaintiff she was making a gift of real property. See: Defendant's Exhibit 1, Memorandum of Attorney R. Mark Thomas dated 3/13/2007. 72. Attorney Thomas explained to the defendants they were accepting a gift of real property, and further, had defendants sign an acknowledgement that they were receiving a gift to ensure they were aware of their liability for substantial capital gains tax if defendants later sold the property. See: Defendant's Exhibit 2, Acknowledgment of Eric Siler dated 5/23/2005. 8. 73. The plaintiff was present for the signing of this acknowledgment and heard and understood the basis for presenting it was to explain the tax consequences of a gift as opposed to inheritance. 74. Attorney Thomas states that on May 23, 2005, Margaret Siler's intention to transfer the property was clear, and that there was nothing in her demeanor that would have caused him to question that intent, and further, that there was no mention of any [side] agreement other than Mrs. Siler's plans to continue to live at the property. See: Defendant's Exhibit 1. 75. Prior to the meeting on May 23, 2005 with Attorney Thomas, Margaret Siler located and retrieved her husband's death certificate. 76. At the May 23, 2005 meeting with Attorney Thomas, Margaret Siler brought her husband's death certificate to facilitate the transfer of the property. 77. Margaret Siler suffers from no mental infirmity or mental disability. 78. Margaret Siler does not claim that the deed transfer in question was a mistake. 79. Margaret Siler is mentally fit, and is capable of assisting her legal counsel with this current litigation. 80. Margaret Siler is fully aware that courts exist to resolve disputes, and has visited the Cumberland County Courthouse on numerous occasions. 81. The residence at 56 Oak Avenue, Camp Hill, PA, in the years 2005, 9. 2006 and 2007 was filled with debris, junk, mementos, and many items in storage. Living areas were crowded. 82. At all or most times pertinent to this litigation, plaintiff's daughter Lisa and Lisa's boyfriend resided and do reside at 56 Oak Avenue, Camp Hill, PA. 83. At all times pertinent to this litigation, satisfactory arrangements are and were in place to care for Margaret Siler's health, safety and well-being. 84. Margaret Siler's health, safety and well-being are in no danger. 85. Margaret Siler was aware, in early 2007, of her own medical conditions, and was aware, in early 2007, that her family members knew of these conditions. 86. In September, 2006, Margaret Siler concluded that she had been wronged by the fact that defendants did not move in with her, care for her, renovate the house and fix the roof and furnace, and concluded she was entitled to have the house reconveyed to her. 87. At all times pertinent to this litigation, defendants son and daughter- in-law never managed any of Margaret Siler's bank accounts, investments, or finances, and never paid any of her bills. 88. At all times pertinent to this litigation, defendants never controlled Margaret Siler's living arrangement, and defendants never held a power of attorney to act on Mother's behalf. 10. 89. Margaret Siler placed trust in defendants in May, 2005. 90. Prior to May, 2005, Eric and Heather Siler visited Margaret Siler approximately five to six times per month. 91. On May 23, 2005, Margaret Siler executed the deed in question with full knowledge and understanding that the document transferred her interest in the property to defendants. 92. No one demanded Margaret Siler transfer the property in question to Eric and Heather Siler. 93. Margaret Siler executed the deed in question on a voluntary basis. 94. Margaret Siler is aware of the value of the real property located at 56 Oak Avenue, Camp Hill, PA. 95. Margaret Siler is an intelligent, cogent, articulate, friendly, and sympathetic individual. 96. The property at 56 Oak Avenue, Camp Hill, PA, is being maintained in good repair. 97. The plaintiff claims defendants promised to care for plaintiff, move into the home, and maintain the residence in return for their receipt of title to the property. 98. The plaintiff does not have and can not produce any writing evidencing the existence of an agreement. 11. 99. The plaintiff provides no detailed facts regarding the alleged oral agreement, including but not limited to how long such care would last, what form such care would take, ie., nursing home care, hospice care, when the defendants were to move in to the residence, and how the terms maintenance/repair were to be defined, and whether they included household chores, major painting and flooring, or the construction of an addition. 100. An alleged agreement which is so vague in nature is illusory and can not be enforced. 101. Mere discussion, preparation, or hope in anticipation of a possible contract, even if proven, will not by itself demonstrate the existence of a legally binding contract, since the parties will not have reached the requisite and final meeting of the minds necessary to form a valid agreement. 102. Since the plaintiff can not show the existence of an agreement with terms the defendants fully and freely accepted, plaintiff has failed to show the contractual elements necessary to support the existence of a contract, and therefore there was nothing for the defendants to breach. 103. Evidence of fraud must be clear, precise and convincing. 104. The defendants made no false statements or misrepresentations to plaintiff regarding her care, moving in, or the repair/maintenance of the property. 105. Because no false statements were made to plaintiff, plaintiff could not form a basis for reliance on such statements. 12. 106. If the conveyance of the real property was dependent on the fulfillment of any future conditions or promises, committed to or made by defendants, the plaintiff could have placed the deed in escrow until such conditions were completed. The plaintiff did not escrow the deed. 107. Margaret Siler, at all times pertinent to this litigation, lived and continues to live at 56 Oak Avenue in Camp Hill. 108. The defendants do not reside with plaintiff, and consequently do not have the means and opportunity to apply, constant pressure, undue persuasion, or overpowering influence to plaintiff. 109. The defendants accepted the gift of real property in good faith, in an arm's length transaction. 110. The plaintiff, on May 23, 2005, did not appear to attorney Thomas to be acting under undue pressure or influence. AFFIRMATIVE DEFENSE ONE: ESTOPPEL 111. The defendants incorporate herein all previous averments in paragraphs 1-110, as though they had been set forth in full, for all affirmative defenses. 112. The defendants, as a result of receiving the gift of real property from defendant, and acting in good faith rfeliance thereon, have been induced to substantially change position and suffered legal detriment, including payment of property taxes, making repairs to the roof, clearing debris from the basement, 13. allowing family members to reside in the home free of rent, and, by holding title, accepting responsibility for any liability which may arise on the premises. 113. The plaintiff has profited by the acts of defendants, inasmuch as she accepted the above-listed benefits which arose from her discharge of the burden of ownership of the property. 114. The plaintiff, even after filing the instant matter on February 20, 2007, continued to acknowledge and accept benefits from defendant's ownership of the property by forwarding property tax bills to defendants for payment, and/or allowing such bills to be paid by defendants. 115. The plaintiff, through her own actions, in making a gift, accepting the benefits, and being fully aware of defendant's reliance on the gift and defendant's motivation to act to their prejudice by her conduct, is now barred and estopped from claiming any right or maintaining any action to the detriment of defendants. 116. WHEREFORE, defendants pray This Honorable Court dismiss the plaintiffs complaint with prejudice. AFFIRMATIVE DEFENSE TWO: STATUTE OF LIMITATIONS (As to Counts 4, 5, 6, land 8) 117. While plaintiff had undergone several physical surgical procedures prior to May 23, 2005, plaintiff did not at that time suffer from dementia or any form of weakened mental health. 118. Plaintiff has never sought treatment for mental health concerns. 14. 119. Causes of action for breach of a confidential relationship or fiduciary duty, and negligent or intentional misrepresentation are tort claims. Plaintiffs claim for unjust enrichment, as framed, sounds in tort. 120. The plaintiff formed an opinion in September, 2006, that defendants had breached certain promises made to her and requested defendants reconvey the property to plaintiff. (See: Party admissions, at 22, 23 and 24 of plaintiff's amended complaint.) 121. By law, tort claims in Pennsylvania must be filed within two years. 42 Pa. C.S.A. 5524 (7). 122. Plaintiff filed her tort claims on December 5, 2008, by way of a Motion for Leave to Amend, thus missing the bar of the statute of limitations by at least 35 days. 123. WHEREFORE, defendants pray this Honorable Court dismiss with prejudice plaintiff's Counts 4, 5, 6, 7 and 8, since they are barred by the statute of limitations. COUNTERCLAIM I, BREACH OF CONTRACT 124. Defendants incorporate their responses in paragraphs 1-64, and each averment under New Matter in paragraphs 65-123, for all counterclaims, as if they were set forth in full. 125. On May 23, 2005, the plaintiff executed a deed and did "grant and convey" the property commonly known as 56 Oak Avenue, Camp Hill, PA, to defendants. See: Plaintiffs Exhibit B. 15. 126. The use of such terms "grant and convey" are fully effective to pass fee simple title to defendants, unless the instrument expressly limits the conveyance to a lesser estate. 21 P.S. Sec. 2. Such words shall be construed as an express covenant from the grantor to the grantee-defendants for the quiet enjoyment of the premises against the grantor, unless limited by express words in the deed. 21 P.S. Sec. 4. 127. The deed contained no words of limitation as to the estate passed, or the fulfillment of conditions precedent. 128. The plaintiff has brought this instant action seeking rescission of the deed, return of the property, and other relief, thereby breaching her express promises to convey a full fee simple estate, and provide for the quiet enjoyment thereof. 129. WHEREFORE, defendants pray This Honorable Court find plaintiff in breach of contract, dismiss the plaintiffs complaint with prejudice, quiet fee simple title in defendants, and discharge the Gs pendens. In the alternative, defendants pray the Court award them damages in an amount equal to the fair market value of the real property, and such other relief as the Court may deem just and proper. By way of further alternative relief, should the trier of fact order and direct recission of the deed, defendants pray this Honorable Court award them attorney fees, the funds and labor they invested in the property, including roof repair in the amount of $800 materials and $ 800 labor, and property taxes of $ 4,135.23, and any and all amounts invested in the real property subsequent to the undersigned date. 16. COUNTERCLAIM II: BREACH OF WARRANTY 130. In the deed described in plaintiffs exhibit B, the plaintiff-grantor promised she would "warrant specially" the property conveyed. 131. The use of the term "warrant specially" shall be construed to mean that the grantor will warrant and defend the property unto the grantees against her lawful claims and demands. 21 P.S. Sec. 6. 132. The plaintiff has brought this instant action seeking rescission of the deed, return of the property, and other relief, thereby breaching her express warranty. 133. WHEREFORE, defendants pray This Honorable Court find plaintiff in breach of warranty, dismiss the plaintiff's complaint with prejudice, quiet fee simple title in defendants, and discharge the lis pendens. In the alternative, defendants pray the Court award them damages in an amount equal to the fair market value of the real property, and such other relief as the Court may deem just and proper. By way of further alternative relief, should the trier of fact order and direct recission of the deed, defendants pray this Honorable Court award them the funds and labor they invested in the property, including roof repair in the amount of $800 materials and $ 800 labor, and property taxes of $ 4,135.23, attorney fees, any and all amounts invested in the real property subsequent to the undersigned date. COUNTERCLAIM III: ACTION TO QUIET TITLE 134. Plaintiff has filed this instant action on December 5, 2008, docketed 17. at 07-940 Civil Term before This Honorable Court, seeking to enjoin defendants, inter alia, from granting, mortgaging or disposing of their interest in real property, and further seeking an order for defendants to reconvey the property back to plaintiff, and other relief. 135. Such action affects defendants' right, title and interest in the real property. 136. The real property in question is commonly known as 56 Oak Avenue, Camp Hill, PA, 17011, the metes and bounds of which are legally described within plaintiff's Exhibit B, and also within the deed duly recorded at Book 269, Page 1534, in the Office for the Recorder of Deeds of Cumberland County. 137. Plaintiff's action above-referenced is without merit in law or equity. 138. WHEREFORE, defendants pray This Honorable Court, pursuant to Pa. R.C.P. 1066: a) Order the plaintiff, by way of Decree Nisi, be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interests and claims of defendants, unless the plaintiff takes such action as the Court may direct within 30 days, and unless such action is taken, direct the Prothonotary to enter final judgment upon praecipe of defendants, and b) Discharge the Lis Pendens filed at the same term and docket number, and c) Enter a final judgment that the above-referenced deed is valid, and direct the Prothonotary to enter such judgment, and further direct the Recorder of Deeds to record such judgment, and d) Direct such other relief as the Court may deem appropriate. 18. COUNTERCLAIM IV: UNJUST ENRICHMENT 139. The defendants plead this action in the alternative to Counterclaim 140. The defendants, by making repairs to the real estate in question, and by payment of property taxes thereon, conferred a benefit on the plaintiff. The plaintiff received such benefits, and appreciated the value thereof. 141. The plaintiff received such benefits under circumstances that it would be inequitable for her to retain them without payment of value. 142. Such inequitable circumstances include : a) Plaintiff gifted real estate to the defendants, by executing a deed of contractual effect, and later attempted to rescind such gift after having her property taxes paid, b) Plaintiff was unduly influenced by family members to take such a negative action against her son and daughter in law, c) Plaintiff was unduly influenced by household members, who are in constant need of funds to support illicit habits, and d) Plaintiff's warranty of title and clear intent to make a gift of the real property in question were misrepresented to the defendants. 143. WHEREFORE, defendants pray This Honorable Court award them, by way of restitution, all funds and labor they invested in the property, including roof repair in the amount of $800 materials and $ 800 labor, and property taxes of $ 4,135.23, attorney fees required to defend the instant action, and any and all amounts invested in the real property subsequent to the undersigned date. Respectfully submitted, 6111(116 % fzs? Date Philip M. Intrieri, Esq. 19. R. MARK THOMASA Attorney at Law + 101 South Market Street Mechanicsburg, Pennsylvania 17055-3851 Telephone: (717) 796-2100 Telefax: (717) 796-3600 March 13, 2007 Philip Intrieri, Esquire 615 North 48`h Street Harrisburg, PA 17111 Re: Margaret E. Siler to Eric A. Siler and Heather A. Siler 56 Oak Avenue, Camp Hill, PA 17011 Dear Mr. Intrieri: I recall preparing a deed to the above-captioned property with Margaret E. Siler as the Grantor and Eric A. Siler and his wife, Heather A. Siler, as Grantees. The deed would have been prepared on or about May 23, 2005. Initially, I was contacted by Eric Siler and scheduled an appointment for him and his mother to meet with me in my office. When I met with the two of them, it was clear that Margaret E. Siler intended to transfer this property to her son, Eric, and his wife. There was nothing in Margaret's demeanor that caused me to question her intent. There was no mention of an agreement with regard to the property other than that his mother was going to continue to reside at the property. I discussed with both Margaret and Eric the tax consequences of making a gift of this real property as opposed to Eric's inheriting this property. Specifically, I advised both Eric and his mother that Eric would only have a tax basis in the property equal to the tax basis that his mother had. On the other hand, I explained to both of them that if Eric inherited the property, he would receive a step-up in basis equal to the fair market value of the property on Margaret's date of death. Enclosed is a copy of an Acknowledgment that I had Eric sign in which he acknowledged his understanding of the tax consequences as a result of this gift. I also had Margaret bring a death certificate with regard to her deceased husband, Edward H. Siler, so that I could confirm that she was the sole owner of this property. DEFENDAN_ EXHIBIT No. / -9- Please contact me with any questions which you might have. Very truly yours, K. Na"tk lima. R. Mark Thomas RMT/j lm Enclosure ACKNUWLEDGWIEN'1' 1. vrie A. Siler, the son of Margaret E. Siler and one of the named Grantees in the decd prepared at my request by R. Mark Thornas, Esquire, hereby state the following: When I discussed the preparation of this deed and the transfer of title to this property with R. Mark 1-'homas, Esquire, he explained to me the tax consequences that may tlow from this transfer. Specifically. since my mother w-tts passing title to mysclfand my wife as a gift. my tax basis in the property would be equal to the tax basis that my mother has in the property. In the event that I should later decide to sell this property the capital gains tax would be significantly increased since I took title to the property by way of a gift from my mother rather than obtaining title to the property by inheritance. I laving bcen so advised by R. Mark Thomas, Esquire, it is still the desire of both my mother and myself that title be transferred by way of a gift rather than by inheritance. Eric A. Siler .S?,a3 pS' Date DEFENDANT'S EXHIBIT NO. INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 PMILaw@verizon.net Pa. Attorney I.D. 76117 VERIFICATION We hereby verify that the statements made in this ANSWER WITH NEW MATTER AND COUNTERCLAIMS are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. June 9, 2009 Date /s/ Eric A. Siler Mr. Eric A. Siler June 9, 2009 Date /s/ Heather A. Siler Ms. Heather A. Siler INTRIERI & ASSOCIATES Philip M. Intrieri, Esq. 615 North 48"' Street Harrisburg, PA 17111-3625 (717) 564-6969 Attomey I. D. # 76117 PMILaw@verizon.net CERTIFICATE OF SERVICE I, Philip M. Intrieri, Esq., do hereby certify that on June /6 2009, 1 served a true and correct copy of the foregoing DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIMS, by causing the documents to be deposited in the United States Mail, first class postage prepaid, to the following: Mark W. Allshouse, Esq. Dickinson Elder Law Clinic 45 North Pitt Street Carlisle, PA 17013 -6,/,/ ?? .7 Date Philip M. Intrieri, Esq. Attorney At Law 615 North 48th Street Harrisburg, PA 17111 (717) 564-6969 Atty. ID # 76117 FULEIIDI-C? -'F 111,71E OF THE rb,b? o r ,? , T3 U' ,J` 9 JL. }i ; Ifi, i {V A I" ? i I I : 11 E 2 Cl 1, . ,?i i JUN 10 200gel MARGARET SILER IN THE COURT OF COMMON PLEAS, CUMBERLAND CO, PENNSYLVANIA Plaintiff vs : CIVIL ACTION: LAW ERIC A. SILER HEATHER A. SILER Defendants : No. 07- 940 CIVIL TERM ORDER OF COURT M AND NOW, this day of , 2009, upon review of defendants' Application for Amended Or er for Purpose of Interlocutory Appeal, the "'Wer of Eh1&4f?0-.u4eflte fed+W81h,2 ee9, is amended tc ,ead as . by D. 0 1! ! rat 10.0h ich -pEN?E J. PISTRIBUTION: Mark W. Allshouse, Esq., Elder Law Clc., 45 North Pitt Street, Carlisle, PA 17013 >-f3hilip M. Intrieri, Esq., Intrieri & Associates, 615 N. 48th Street, Hbg, PA 17111 LrICL 12op?es mat OF ?3 is R' : , ;OTtoy 2009 UN' 17 AN 10: 18 -fy Q The Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013 (717)240-5152 Mark W. Allshouse, Esquire Brian W Mains Certified Legal Intern MARGARET SILER : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 07 - 940 Civil Term ERIC SILER HEATHER SILER Defendants : Civil Action - Law ANSWER TO NEW MATTER AND AFFIRMATIVE DEFENSES AND COUNTERCLAIMS Plaintiff, Margaret Siler, by and through her attorneys Mark W. Allshouse, Esq. and The Elder Law and Consumer Protection Clinic of The Dickinson School of Law of the Pennsylvania State University, states the following in support of this Answer to New Matter and Affirmative Defenses and Counterclaims: Answer to New Matter 65. No Answer required. 66. Denied. To the contrary the transfer of real property in question was intended by plaintiff to be consideration for Defendants moving in with Plaintiff, repairing her home and taking care of the plaintiff and the residence. By way of further response, while Plaintiff at this time concurs with Defendants' admission that they never planned to move in with her, it is denied that she knew this at the time of the transfer. By way of further response and in the alternative, even if the transfer is determined to be a gift, the gift was conditioned upon Defendants' moving in with Plaintiff, repairing the home, and taking care of the plaintiff and the residence. 67. Denied as stated. While plaintiff had capacity to make a gift, it is denied that Plaintiff made a gift of the property. By way of further response, the property was the consideration for defendants' promise to move into the property and care for the plaintiff and the property. 68. Denied. To the contrary, it was the defendants' idea to transfer the property. By way of further response, defendants initiated the meeting with Attorney R. Mark Thomas regarding the transfer of the property. By way of further response, plaintiff intended to transfer the property in return for defendants moving in with plaintiff, repairing her home and taking care of the plaintiff and the residence. 69. Denied as stated. To the contrary, Plaintiff never delivered a gift. By way of further response, Plaintiff deeded Defendants the property in return for the defendants moving in with the plaintiff, repairing her home and caring for the plaintiff and the residence. It is specifically denied that the plaintiff provided the defendant with a key prior to March 8, 2007. By way of further answer, Defendant Eric Siler persuaded Plaintiff to give him a key, indicating that he would let someone into the home to measure and replace the windows; however, such window measurement and replacement never occurred. 70. Denied as stated. To the contrary, there was no gift, but title to the property was transferred to the defendants in consideration for their promise to move in with the plaintiff and provide care for both Plaintiff and the property. 71. Denied. To the contrary, Attorney R. Mark Thomas never explained specifically to Plaintiff that she was making a gift. 72. Denied. By way of further explanation, no answer is required as the document speaks for itself. 73. Admitted in part and denied in part. It is admitted that the plaintiff was present when the acknowledgement was signed. Plaintiff denies that she heard or understood that the basis for defendants' signing the acknowledgment was to explain the tax consequences of a gift as opposed to inheritance. 74. Denied as stated. The exhibit speaks for itself. 75. Plaintiff is without sufficient knowledge or recollection at this time insomuch that she is unable to answer. 76. Denied. Plaintiff is without sufficient knowledge or recollection at this time and as a result she is unable to admit to this allegation. 77. Denied as stated. To the contrary, Plaintiff suffers from the infirmity typically associated with age, i.e. memory recall issues, etc., which has been compounded by the stress associated with her medical procedures, and by the stress induced by Defendants' failure to repair her home and care for her as agreed, and Defendants' refusal to re-convey the property to Plaintiff. 78. Admitted. 79. Admitted in part. It is admitted that Plaintiff is capable of assisting legal counsel. However, Plaintiff is without sufficient knowledge, information, or belief as to Defendants' intended meaning of the term "mentally fit" in this averment and therefore cannot admit or deny the remainder of the allegation. 80. Admitted. 81. Denied in part and admitted in part. It is denied that the residence was filled with "debris" and "junk." It is admitted that the living areas were crowded. By way of further response, Defendants agreed to help Plaintiff sort through her belongings and remove the items no longer desired by Plaintiff from the residence, but failed to do so. By way of further response, Defendants removed many of Plaintiff s valued personal items from the home and left these items outside the home subject to the elements to make room in the home for Defendants' personal belongings. 82. Admitted. 83. Denied. To the contrary, Plaintiff s health, safety and well-being are affected by the condition of her home, which was and still is in need of repairs. Any implication that arrangements, which may have been or are now in place, were made for the benefit of Plaintiffs health, safety and well-being by Defendants of their own volition is specifically denied. 84. Denied as stated. Plaintiff s health, safety and well-being are affected by the condition of her home, which is still in need of repairs; which repairs Defendants agreed to make in consideration for Plaintiff deeding the home to them. 85. Admitted. 86. Denied as stated. In September, 2006 Plaintiff requested that Defendants re-convey the property to her so that she could make necessary repairs the roof and furnace, which request was denied by Defendants. 87. Denied. By way of further response, Defendants have no son or daughter-in-law. 88. Admitted in part and denied in part. It is admitted that Defendants never held a power of attorney for Plaintiff. It is denied that defendants never controlled Plaintiff's living arrangement and to the contrary, by the totality of the circumstances, including but not limited to; Defendants' failure to repair the home as agreed, Defendants' refusal to move in and care for Plaintiff and the home as agreed, and their refusal to re-convey title to Plaintiff enabling her to make necessary repairs, Defendants have exercised a substantial degree of control over Plaintiff's living arrangement. 89. Admitted. By way of further answer as a mother Plaintiff has placed trust in Defendants, her son and daughter-in-law, on occasions before and since May, 2005 as well. 90. Denied. Plaintiff is without sufficient recollection at this time to admit to this allegation. By way of further response, Plaintiff believes that Defendants visited no more than two times in any month during the period of time in question. 91. Denied as stated. It is admitted that Plaintiff executed the deed in question, but did so with the understanding that she would remain in the home and that the transfer was conditioned upon Defendants moving in with Plaintiff, repairing the home, and taking care of Plaintiff and the residence. 92. Denied. To the contrary, by their agreement with Plaintiff that Defendants would repair Plaintiff's home and take care of her and the residence in consideration for Plaintiff deeding the property to them, Defendants made a demand for the transfer of the property; which demand was satisfied by Plaintiff when she executed the deed. 93. Admitted in part and denied in part. Plaintiff did voluntarily execute the deed, however, the transfer of the property was only voluntary based on the fact that Plaintiff was induced into said execution based upon her belief that Defendants would move in with Plaintiff, repair her home and take care of the plaintiff and the residence. By way of further response, Plaintiff was concerned that she would be unable to stay in her home because her physical condition and age would limit her ability to adequately care for herself and Defendants persuaded plaintiff to transfer the real property to them so that she would not have to leave her home. 94. Denied. To the contrary, Plaintiff is unaware of the value of the property. By way of further response, it is denied that Plaintiff would be able to determine the actual value of the property without employing a professional appraiser. 95. Admitted. By way of further response, Plaintiff does suffer from imfirmity associated with age, i.e. memory recall issues, etc. 96. Denied. To the contrary, the property is still in need of repairs. 97. Admitted. 98. Denied as stated. The executed deed is a result of the parties' agreement and constitutes circumstantial evidence thereof. 99. Denied a stated. By way of further response, the nature of the agreement between the parties was such that details of the kind included in this averment were implied in the stated terms thereof, and no such statement of "detailed facts" was necessary for the parties to reach a meeting of the minds as to the terms of the agreement, and as to each parties' obligations under those terms. 100. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. 101. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial, if deemed relevant. 102. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial, if deemed relevant. 103. This statement is a conclusion of law to which no response is required. Any implication that plaintiff failed to allege facts sufficient to support a claim for fraud and undue influence is denied. 104. Denied. To the contrary, Defendants made false statements and misrepresented to Plaintiff that they would move in with plaintiff, repair her home and take care of the plaintiff and the residence in return for the conveyance of the home. By way of further response, although Defendants accepted title to the residence they have not fulfilled their promises to plaintiff to repair and maintain her home and move into the residence and care for Plaintiff. 105. Denied. To the contrary, the defendants promised to move in with the plaintiff, repair her home and take care of the plaintiff and the residence in return for the conveyance of the home. By way of further response, Plaintiff relied on these false statements and conveyed the property to the defendants. 106. Admitted in part and denied in part. It is admitted that the plaintiff did not escrow the deed. Any implication that the plaintiff would know she could escrow the deed without the benefit of legal counsel is denied. 107. Admitted. 108. Admitted in part and denied in part. It is admitted that the defendants did not reside with the plaintiff. However, any implication that the defendants could not influence the plaintiff because they did not live with her is denied. By way of further response, the natural confidence inspired by the mother-son relationship combined with Plaintiffs dependence on Defendants as well as the particular state of mind of Plaintiff at the time of the conveyance, adequately establishes that a confidential relationship existed. 109. Denied. Conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial. 110. Denied. After reasonable investigation, Plaintiff lacks sufficient knowledge of Attorney R. Mark Thomas' impressions so as to form an answer to this averment. Answer to Affirmative Defense One: Estoppel 111. No answer required. 112. Denied. Conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial. By way of further response, Plaintiff has paid the following: a. Expenses incurred to replace the roof; b. Expenses incurred to replace the furnace; c. All utility bills; d. 2009 county and township real estate taxes, which tax bill was forwarded to Plaintiff by Defendants. 113. Denied. To the contrary, Plaintiff has had to continue under the burdens of ownership, inasmuch as she paid to replace the roof and to replace the furnace, without the benefit of actually owning the property, which ownership would have enabled her to utilize the accrued equity in the property to finance such repairs. By way of further response, Plaintiff continues under the everyday burdens associated with ownership of the property, including making sure the walkways are clear from snow and paying all utilities for the property, without the benefit of actual ownership. 114. Admitted in part and denied in part. It is admitted that plaintiff forwarded the tax bill to defendants. It is denied that Plaintiff accepts or receives any benefits from defendants as they have failed to fulfill their promises to care for Plaintiff and the residence. Additionally, Defendants as owners of the property are responsible for the taxes, but have forwarded the most recent tax bill to Plaintiff which she paid. 115. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. Strict proof thereof is demanded at trial, if deemed relevant. 116. Denied for the reasons set forth in the above paragraphs of Plaintiffs Answer to New Matter and Counterclaims and Affirmative Defenses. Wherefore Plaintiff respectfully requests this Honorable Court enter judgment in favor of Plaintiff. Answer to Affirmative Defense Two: Statute of Limitations (As to Counts 4, 5, 6, 7 and 8) 117. Admitted in part and denied in part. It is admitted that Plaintiff had undergone several surgical procedures. It is denied that these procedures did not have some effect in weakening Plaintiff's mental health. However, any implication that Plaintiff should not have been granted leave by this Court to amend and amplify her timely filed complaint or that she is barred from doing so by statute of limitations is denied. 118. Denied. After reasonable investigation Plaintiff is without sufficient knowledge, information, or belief as to Defendants' intended meaning of the term "mental health concerns" in this averment insomuch that she is incapable of admitting thereto. 119. Denied. The averment included in this paragraph is a conclusion of law to which no response is necessary. By way of further response, the bases of claims and statutes of limitations have already been addressed by the Court in its hearing and granting of Plaintiff s motion to amend her complaint. By way of further response, Defendants admit that the execution of the deed was contractual. (See Def. Answer with New Matter and Counterclaims at ¶ 142.) 120. Admitted in part and denied in part. It is admitted that Plaintiff asked Defendants to re- convey the property to her. However any implication that Plaintiff should not have been granted leave by this Court to amend and amplify her timely filed complaint, or that she is barred from doing so by statute of limitations is denied. 121. Denied. Conclusion of law to which no response is required. By way of further response, the statute speaks for itself, however any implication that Plaintiff s complaint is subject to, or barred in any way by this statute is denied. 122. Denied. Conclusion of law to which no response is required. By way of further response, Plaintiff's timely filed complaint was amended and amplified pursuant to this Court's order and in accordance with 42 Pa.C.S. § 5525(a)(4), and any implication that Plaintiff should not have been granted leave by this Court to amend and amplify her timely filed complaint, or that she is barred from doing so by statute of limitations is likewise denied. 123. Denied for the reasons set forth in the above paragraphs of Plaintiff's Answer to New Matter and Counterclaims and Affirmative Defenses. Wherefore Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff. Answer to Counterclaim I: Breach of Contract 124. No answer required. 125. Admitted. 126. The averment included in this paragraph is a conclusion of law to which no response is necessary. 127. Admitted. 128. Admitted in part and denied in part. It is admitted that plaintiff is seeking the relief Defendants stated. It is denied that plaintiff breached her promise to convey a full fee simple estate and/or provide for the quiet enjoyment of the residence. 129. Denied for the reasons set forth in the above paragraphs of Plaintiff's Answer to New Matter and Counterclaims and Affirmative Defenses. Wherefore Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff. Answer to Counterclaim II: Breach of Warranty 130. Admitted. 131. The Averment included in this paragraph is a conclusion of law to which no response is necessary. 132. Admitted in part and denied in part. It is admitted that plaintiff is seeking the relief defendants stated. It is denied that plaintiff breached her express warranty. 133. Denied for the reasons set forth in the above paragraphs of Plaintiff's Answer to New Matter and Counterclaims and Affirmative Defenses. Wherefore Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff. Answer to Counterclaim III: Action to Ouiet Title 134. Admitted. 135. Admitted. 136. Admitted. 137. Denied. Conclusion of law to which no response is required. Strict proof thereof is demanded at trial. 138. Denied for the reasons set forth in the above paragraphs of Plaintiff's Answer to New Matter and Counterclaims and Affirmative Defenses. Wherefore Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff. Answer to Counterclaim IV: Uniust Enrichment 139. No answer required. 140. Denied. To the contrary, Defendants, having been deeded the property, are responsible for paying the taxes thereon and have intentionally shirked this responsibility to the detriment of Plaintiff by forwarding the 2009 tax bill to her for payment. By way of further response, Defendants have failed to repair and care for the real estate, as agreed, to the detriment of Plaintiff. By way of further response, Defendants, by their own admission, failed to fix the roof to the detriment of Plaintiff. (See Def. Answer with New Matter and Counterclaims at ¶ 86.) 141. Denied. Conclusion of law to which no response is required. By way of further response, the circumstances surrounding the transfer of the real estate in question are such that it would be inequitable for Defendants not to re-convey the property to Plaintiff. 142. Denied. It is denied that Plaintiff has caused any inequitable circumstances. The subparts are denied as follows: a. Denied. See answers supra. b. Denied. Conclusion of law to which no response is required. c. Denied. Conclusion of law to which no response is required. d. Denied. See answers supra. By way of further response, the circumstances of inequity related to the real estate in question exist as to the benefit of Defendants and the detriment of Plaintiff. See answers supra. 143. Denied for the reasons set forth in the above paragraphs of Plaintiff's Answer to New Matter and Counterclaims and Affirmative Defenses. Wherefore Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff. Respectfully submitted, Date: &3,' 4,/"-- ,/ ` -7-" ? Brian W. Mains, Certified Legal Intern Mark W. Allshouse, Esq. Supreme Court ID Number 78014 The Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013 (717)240-5152 VERIFICATION I verify that the statements made in the undersigned document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: 3b AZLO'g, 4?2 Margaret Sil MARGARET SILER : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 07 - 940 Civil Term ERIC SILER HEATHER SILER Defendants : Civil Action - Law CERTIFICATE OF SERVICE I, Brian W. Mains, certify that on UL ? 2 , 2009, I served the foregoing document by placing a true and correct copy of the same in the United States first class mail, postage prepaid, addressed as follows: Philip M. Intrieri, Esq. Intrieri & Associates 615 North 48'x' Street Harrisburg, PA 17111-3625 Date: y. .?-•? 4 41,1, Brian W. Mains Certified Legal Intern Elder Law and Consumer Protection Clinic The Dickinson School of Law The Pennsylvania State University 45 North Pitt Street Carlisle, PA 17013 FILED-13--: , C OF T HIE PPICI i C' IF AR 7 20 0° iU - 2 NM 2: t 2 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AOPC 1013 Rev.08/21/2009 Karen Reid Bramblett,Esq. ?§upertor Court of Vennotbauia Prothonotary !Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary August 21, 2009 RE: Siler, M. v. Siler, E. No. 42 MDM 2009 Trial Court Docket No: 07-940 Dear Attorney Intrieri 100 Pine Street, Suite 400 Harrisburg, PA 17101 (717) 772-1294 www, supcrior(ourt, state. Pa. US Enclosed please find a copy of an order dated August 21, 2009 entered in the above-captioned matter. Pursuant to the foregoing order, a certified copy of same is being forwarded to the trial court judge and the trial court. Res ectfully, Milan K. Mrkobrad, Es . Deputy Prothonotary /wjt Enclosure cc: Mark Wayne Allshouse, Esq. The Honorable Edward Guido, Judge Mr. Curtis R. Long, Prothonotary Margaret Siler V. Eric A. Siler, et al. ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 07-940) No. 42 MDM 2009 Filed: August ?I , 2009 The Petition for Permission to Appeal is hereby DENIED. Per Curiam TRUE COPY FROM RECORD Attest: AUG 21 09 DgmtY PfothonotW7 Superior Court of PA - Middle DISWCt I- !- r 2009 Cii'v v }