HomeMy WebLinkAbout97-00252
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DAVID WAGNER AND
VANNEIl WAGNER,
:
COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
,
,
Plaintiffs
.
,
v.
NO.: 97-252
DENNIS SEMANCIK,
.
,
,
,
IN EJECTMENT
Defendant
,
,
MOTION OF PARTIES FOR ORDER OF COURT
ACCEPTING TERMS OF AGREEMENT
AND
INCORPORATING THOSE TERMS IN ORDER
AND NOW corne the parties, by their undersigned counsel, and
hereby move this Court for an Order incorporating the terms of the
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attached Agreement of Parties as an order 0f this Court.
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Date: 2 \0c j (.",
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KENNETH'A. WISE, ESQUIRE
10 NO. 16142
126 LOCUST STREET
P. O. BOX 11489
HARRISBURG, PA 17108-1489
ATTORNEY FOR PLAINTIFFS
Date:
'y.",;..5'- 'i"7
DAVID WAGNER AND COURT OF COMMON PLEAS,
VANNIlB WAGNER, , CUMBERLAND COUNTY, PA
,
,
,
Plaintiffs , CIVIL ACTION - LAW
,
:
V. , NO. : 97-252
,
DENNIS SEMANCIK, IN EJECTMENT
Defendant
AGREEMENT OF THE PARTIES
AND NOW, come the parties to this agreement, David H. Wagner
and Vannee A. Wagner,
"Plaintiff," and Dennis Semancik,
"Defendant," and horeinafter agree that
WHEREAS this above captioned action is an action by Plaintiffs
to recover possession to a certain parcel of real estate in the
borough of New Cumberland, Cumberland County, Pennsylvania, known
and numbered as 341 Ninth street, and to extinguish all interest in
Defendant thereto;
WHEREAS Defendant contests this action;
WHEREAS the parties desire to amicably resolve their
differences in this action;
NOW WHEREFORE the parties agree and stipulate as follows:
1. Defendant agrees to an entry of judgement against him in
favor of Plaintiffs for possession of property and for money
judgement in the amount of $15,000.00, to cover the cost or any
arrearages and other charges due either under this agreement or the
aforesaid Agreement of Sale. This judgment shall be enforceable
only to the extent of any such costs, arrearages, or other charges
at the time the judgment is executed upon. The parties agree that
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in calculating satisfaction of the money judgment, credit shall be
given for any total amount of arrearages and other charges under
$15,000.00. In the event that the total amount of arrearages and
other charges exceeds $15,000.00, the parties agree that Plaintiffs
may bring a supplemental petition in this action or in any other
2, Defendant agrees that he is in arrears on the following
action to recover that difference.
charges and will pay them as set forth herein:
,
I.
A, Monthly payments on the aforesaid agreement from
November, 1996, through September, 1997, inclusive:
$4400.00.
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B.
Payment of taxes and municipal charges accruing
under that aforesaid Agreement of Sale from date of
purchase through September 7, 1997: $1331.08.
C. Attorney's fees: $1778.02.
D, Special cost of service: $142,90.
E, Total: $7652.00, together with legal costs.
3. Defendant will payoff the accrued charges set forth in
the previous par.agraph as follows:
A. Initial payment of $5,000.00 due with the signing
of this agreement;
B. Remaining balance of $2,652.00 by September 30,
1997.
4, Defendant will continue to make payments on the agreement
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and to pay the taxes and other municipal charges as they come due
as per the aforesaid Agreement of Sale. Plaintiffs agree that they
will take no action to execute on judgement provided that the terms
of this condition are complied with, including particularly the
terms of the underlying Agreement of sale, incorporated by
reference herein to the extent not inconsistent with the terms of
this agreement.
5. Defendant will continue to make monthly payments on
principal and accruing interest under the terms of the aforesaid
Agreement of Sale.
6, Should Defendant not make a payment as due under the
terms of this agreement and the aforesaid Agreement of Sale, within
fifteen (15) days from the due date, Plaintiffs may send to
Defendant a notice declaring Defendant to be in default and giving
Plaintiff fifteen (15) days from the date of the notice to cure the
default, Should the default not be cured within that fifteen day
period, Plaintiffs may proceed with execution on the judgments, or
either of them, without further notice to Defendant. Said notice
is sufficient if sent by First Class united States Mail and
addressed to Defendant at the aforesaid address on Ninth Street in
the borough of New Cumberland.
7. Should Defendant not make a monthly installment on
interest and principal within five days of the due date, Defendant
shall be assessed a late fee of $5.00 per day running from the
sixth day of non-payment when due and ending when Plaintiffs
request execution of the judgement,
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B. Defendant will pay Plaintiffs for their reasonable costs
of enforcing this agreement, including reasonable attorney's fees
and expenses.
9. Defendant will allow Plaintiffs the opportunity to
thoroughly inspect the property at a mutually agreeable time within
the next ninety (90) days. After this inspection, or after any
other inspection, should Plaintiffs feel that Defendant is not
complying with the terms of this agreement or the aforesaid
Agreement of Sale, Plaintiffs may give written notice of the
noncompliance and give Defendant at least forty-five (45) days to
comply. If Defendant has not complied within the period allowed,
Plaintiffs may proceed with execution on the judgments, or either
of them, without further notice to Defendant, Said notice is
sufficient if sent by First Class united States Mail and addressed
to Defendant at the aforesaid address on Ninth Street in the
borough of New Cumberland.
10. The terms of the aforesaid Agreement of Sale dated
September 11, 1995, and entered into between the parties to this
agreement shall remain in effect except to the extent modified by
the terms of this agreement. That Agreement of Sale is attached
hereto, labeled Exhibit "A" and incorporated by reference herein,
11. The failure of Defendant to make a payment on interest
and principal or make other payment required under either this
agreement or the aforesaid Agreement of Sale within fifteen days of
the due date shall constitute a default. The failure of Defendant
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INSTALLMENT SALES AGREEMENT
THIS AGREEMENT, made this ~ day Of~~
1995, by and between VANNEE A. WAGNER and DAVID H. GNER, Husband
and Wife, hereinafter referred to as "SELLERS"
-AND-
DENNIS SEHANCIK
hereinafter referred to as "BUYER".
The parties hereto, with intent to be legally bound, do hereby
agree, covenant and represent as follows:
1. SALE AND PURCHASE. The SELLERS shall sell and convey to
BUYER, who shall purchase, all that certain tract or parcel of
ground with the improvements thereon erected as is, located at 341
Ninth Street, New Cumberland, Cumberland County, Pennsylvania, as
more fUlly described on Exhibit "A" attached hereto and made a part
hereof, hereinafter referred to as the "Premises", upon the
following terms and conditions. The sale includes whatever
electric, heating, plumbing fixtures, systems and equipment and all
fixtures permanently affixed or attached to the "Premises".
2. PURCHASE PRICE. The price or consideration to be paid
shall be SIXTY-TWO THOUSAND and XX/100 ($62,000.00) Dollars, which
shall be paid to SELLERS by the BUYERS in the following manner:
(a) The sum of One and XX/l00 ($1.00) Dollar tendered in
good faith at the time the BUYER executes and presents this
Agreement, the receipt of which is hereby acknowledgedi
(b) The sum of Sixty One Thousand Nine Hundred Ninety-
Nine and XX/l00 ($61,999.00) Dollars together with interest at the
rate of Three (3%) Percent per annum, shall be paid in equal
monthly installments of Four Hundred and XX/l00 ($400.00) Dollars
per month, beginning on the first (1st) day of June, 1995, and on
the first day of each month thereafter with a final payment of the
balance of the monies, THIRTY NINE THOUSAND ONE HUNDRED TWENTY-NINE
and 76/100 ($39,129.76) DOLLARS, due on or before June 1, 2002.
Each of said payments shall be applied first to interest and the
balance to principal.
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(c) The BUYER shall have the right to prepay the said
purchase price in whole or in part at any time without fee or
penalty.
3. QUIET ENJOYMENT. SELLERS covenants to allow BUYER quietly
and peaceably to enjoy possession of the premises free from
interference or interruption of SELLERS or any person claiming
under or through SELLERS and SELLERS represents to BUYER that they
have sufficient ownership interest in the premises to enter into
and carry out the provisions of this Agreement.
4. DEED IN ESCROW. The parties acknowledge that SELLERS have
executed a deed to the premises in recordable form bearing even
date herewith, to be deliVered to the BUYER. The parties agree
that the deed shall not be recorded now and that if this Agreement
is terminated, and if BUYER's interest in the premises is forfeited
due to a default by the BUYER hereunder, such deed shall be
destroyed and shall be void and of no force and effect. The
parties further agree that the said deed shall immediately
hereafter be transmitted to Maryann Murphy, Esquire, BUYER'S
attorney, as escrow agent, to be held in escrow as above described.
5. SETTLEMENT AND POSSESSION.
(a) Time is considered to be of the essence and
settlement shall be had on or before the fifteenth (15th) day of
September, 1995;
(b) In the event that the BUYER fails to appear at
settlement, then the SELLERS, at their option, may declare this
Agreement null or void; and
(c) Possession shall be given to BUYER at the time of
settlement.
6. "AS IS" CONDITION. The BUYER has inspected the property
and does not rely on any representations made by the SELLERS
relating to any condition of the property or any repairs which may
be required thereto. The BUYER agrees to purchase the said property
in an "AS IS" condition.
7. REAL ESTATE TAXES. INSURANCE. SKWER. WATER and GARBAGE:
Real estate taxes, water and sewer rents, if any, and other
lienable items of a similar nature, shall be apportioned as of the
date of possession and settlement hereof and shall thereafter be
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borne and paid for by the BUYER prior to any penalty period.
Failure to pay prior to the penalty period may be considered a
default of the terms of the Agreement by the SELLERS. SELLERS agree
to promptly forward to BUYER any tax statements issued by the
taxing authorities, insurance invoices and sewer, water and garbage
invoices which they may hereafter receive. BUYER shall provide
SELLERS with proof of payment of said real estate taxes, insurance,
sewer, water and garbage charges promptly after payment is made.
All realty transfer taxes in effect at the time of final
settlement, which term means when a formal deed is tendered for
recording by the SELLERS to the BUYER and levied upon by the
Commonweal th of Pennsylvania, or any potential subdivision thereof,
shall be paid by the BUYER.
8. REAL ESTATE TRANSFER TAXES: All realty transfer taxes in
effect at the time of final settlement, which term means when a
formal deed is tendered for recording by the SELLERS to the BUYER
and levied upon by the Commonwealth of Pennsylvania, or any
potential subdivision thereof, shall be paid one half by SELLERS
and one half by BUYER.
9. UTILITIES. BUYER shall be responsible for all utilities
consumed in connection with the use of said premises.
10. INSURANCE. BUYER agrees to maintain at his expense fire
and extended coverage insurance on the premises in an amount not
less than Sixty-Two Thousand ($62,000.00) Dollars with the
designated loss payee being the SELLERS herein, and BUYER as their
respective interests may appear. BUYER shall acquire and keep in
full fOlce and effect during the term of this Agreement liability
insurance of at least One Hundred Thousand ($100,000.00) Dollars
for accident, injury or death to any person or to property, and One
Hundred Thousand ($100,000.00) Dollars for accident, injury or
death to persons or property arising out of anyone occurrence,
with SELLERS being named as additional insureds.
11. DESTRUCTION. Destruction of or damage to any building or
other improvement now or hereafter placed on the premises, whether
from fire or any other cause, shall not release the BUYER from any
of his obligations under this Agreementi it being expressly
understood that the BUYER bears all risk of loss to or damage of
the premises from the date of possession thereon.
12. CONDEMNATION. If the whole or part of the premises shall
be condemned by eminent domain, or acquired in lieu of
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condemnation, for any public or quasi-public use or purpose, BUYER
shall be entitled to the entire award and is hereby authorized to
suttle any award without the consent of SELLERS, but BUYER shall
not be released from any of their obligations under this Agreement.
BUYER agrees to pay SELLERS in full their obligation hereunder this
Agreement upon receipt of such an award.
13. COMPLIANCE WITH LAWS. BUYER shall not violate any law,
rule or ordinance of any governmental authority having jurisdiction
over the premises in connection with his use of the premises.
14. MAINTENANCE. BUYER shall maintain and repair the premises
(inClUding any improvements thereto made or caused to be made by
BUYER) in good condition during the terms of this Agreement.
15. BUYERS DEFAULT. The occurrence of any of the following
shall constitute a default by BUYER:
(a) Failure to make any monthly installment on account
of the purchase price when due, if the failure continues for ten
(10) daysi failure to pay all items set forth in Paragraph 7 of
this Agreement prior to any penalty poriodi failure to maintain
insurance coverage as provided in Paragraph 10 of this Agreementi
SELLERS shall not be required to give any notice to cure any of
these defaults before proceeding with any legal or equitable rights
they may havei notice has been given by SELLERS to BUYERi
(b) Failure to perform any other provision of the
Agreement if the failure to perform is not cured within fifteen
(15) days after notice has been given by the SELLERS to the BUYER.
Provided, however, if the default cannot reasonably be cured within
fifteen (15) days, BUYER shall not be in default of this Agreement
if BUYER commences to cure the default within the fifteen (15) day
period diligently and in good faith continue to cure the default.
Notices required under this Paragraph shall specify the
alleged default and shall demand that the BUYER perform the
provisions of this Agreement as the case may be, within the
applicable period of time, or be SUbject to SELLERS' remedies in
the event of default by BUYER.
16. PERSONALTY: All plumbing, heating and lighting
fixtures, and systems appurtenant thereto and forming a part
thereof, as well as ranges, laundry tubs, T.V. antennas, masts and
rotor systems, together with screen storm sash and/or doors,
shades, awnings, venetian blinds, couplings for automatic washers
and dryers, etc., radiator covers, cornices, kitchen cabinets,
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drapery rods, drapery rod hardware, curtain rods, curtain rod
hardware, fixtures / other permanent fixtures etc., all trees,
shrubbery, plantings now in or on property, and remaining heating
and cooking fuels stored on the premises, if any, unless
specificallY excepted in this Agreement, shall be included in the
sale and purchase price. None of the above mentioned items shall
be removed by the SELLERS from the premises after the date of this
Agreement. SELLERS shall deliver the good title to all the
articles described in this paragraph, and any other fixtures or
items of personalty specifically scheduled and to be included in
this Sale.
17. FINAL SETTLEMENT: Final settlement shall take place on
or before June 1, 2002. In the event. that BUYER fails to make
final settlement on or before June 1, 2002, or within any extension
of said time granted by SELLERS to BUYER, this Agreement shall be
deemed null and void and the amount paid by the BUYER to SELLERS
shall be forfeited as liquidated damages. If this Agreement is
contingent upon financing, it is understood and agreed that if,
after full cooperation of BUYER, aforesaid financing is not
obtained the deposit shall be returned, less any expense incurred
on behalf of BUYER, and this Agreement shall be null and void.
18. STATUS OF WATER AND SEWER: SELLERS warrant that this
property is serviced by Public water and Public sewer. Further,
SELLERS warrant that these systems are fully paid for and, as of
the date of this Agreement, are in satisfactory operating
condition. If aforesaid systems are private, SELLER warrants that
they have no knowledge or information that public water and sewer
will be installed for at least six (6) months after the date of
settlement aforesaid.
19. MUNICIPAL IMPROVEMENTS: SELLERS have no notice of
municipal improvements such as sidewalks, curbs or any other
improvements.
20. ADJUSTMENTS AT SETTLEMENT: Taxes, rents, water and sewer
rents and all other per iodic claims and charges upon the above
described premises shall be apportioned at the time of settlement.
purchase price includes fuel oil remaining in the tank at the time
of settlement.
21. RISK OF LOSS: SELLERS shall bear the risk of loss from
fire or other casualty until time of settlement. In the event of
damage to the property by fire or other casualty, BUYER shall have
the option of rescinding this Agreement and receiving hand money
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paid on account or of accepting the property in its then condition
with the proceeds of any insurance recovery obtainable by SELLERS.
22. TITLE: SELLERS specifically warrant that they have good
and marketable title to said property and shall convey to BUYER by
general warranty deed good and marketable title to said premises.
23. REJECTION OF TITLE: In the event that material defects
are found in the title, and reported to the SELLERS, then, if such
defects are not cured within sixty (60) days, this Agreement shall
become null and void and the deposit monies of One and xx/lOa
($1.00) Dollar shall be returned to the BUYERS at the option of the
BUYER. SELLERS agree to the 'application of so much of the purchase
money as required to the payment of liens and encumbrances at
settlement.
24. DEPOSITS: All payments on account of this transaction
shall be retained in a separate escrow account for the benefit of
the parties to this transaction.
25. ZONING OR DEED RESTRICTION: SELLERS warrant that the
present use of the property violates no existing zoning ordinance
or regulation, nor deed restrictions, and that SELLERS have no
notice whatsoever of any proposed zoning change.
26. COPIES: This Agreement and the attached Addendum,
executed in quintuplicate, contains the final and entire agreement
between the parties except as otherwise provided herein.
27. LEGAL RESPONSIBILITY: THIS IS A LEGALLY BINDING
CONTRACT. BUYER and SELLERS each acknowledge that they had the
opportunity to have said Agreement reviewed by their respective
attorneys.
28. APPROVAL: This Agreement is subj ect to the written
approval of SELLERS.
29. RECORDING OF INSTALLMENT SALES AGREEHENT: It is
specifically agreed that this Installment Sales Agreement and
attached Addendum shall be recorded at BUYER'S expense at the
Cumberland County Recorder of Deeds office.
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DAVID WAGNER AND
VANNEE WAGNER,
COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
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CIVIL ACTION - LAW
Plaintiffs
V.
NO.: 97-252
DENNIS SEMANCIK,
IN EJECTMENT
Defendant
PLAINTIFF'S PRETRIAL MEMORANDUM
AND NOW, come Plaintiffs by their undersigned counsel and
respectfully submit the following Pretrial Memorandum:
I. NATURE OF CLAIMS:
This is an action for recovery of real property on default
of an Agreement of Sale. The property is located at 341 Ninth
Street in the borough of New Cumberland, Cumberland County,
Pennsylvania,
Plaintiffs are claiming default in the agreement due to non-
payment of installments, taxes, and utilities. Plaintiffs are
also claiming expenses and attorney's fees as per the agreement.
Defendant is claiming that he has the right to cure default,
either under Act 6 or in reliance on what he claims is an Act 6
notice upon which he relied to his material detriment.
II, STATEMENT OF FACTS:
Plaintiffs are the owners of a certain parcel of residential
real estate located at 341 Ninth street, New Cumberland,
Cumberland County, Pennsylvania.
On September 11, 1995, Plaintiffs and Defendant entered into
an Agreement of Sale for the property. Defendant entered into
possession of the property. The Agreement of Sale called for the
Defendant to make monthly installment payments of $400.00. It
also called for the Defendant to keep current all property taxes,
water and sewer rents, or other charges accruing against the real
estate owing to Defendant's occupancy.
Defendant ceased making monthly payments on approximately
November 1, 1996, and has continued in arrears ever since.
Defendant has also failed to pay taxes and water and sewer
charges,
Defendant claims that the notice sent to him of default
constitutes an "Act 6 notice." He claims that this constitutes
an Act 6 "mortgage" within the definition of Act 6 (41 Pa. C.S,A,
5.101 et seq.), or that, in the alternative, he relied on the
notice. In either event, Defendant claims the right to cure, and
he claims the ability to cure.
Plaintiff's claim for damages to date are as follows:
1.
Back payments
$4000,00
2.
Unpaid taxes, water, and sewer charges
1276,65
3.
Reasonable attorney's fees and litigation
costs
1160.42
4,
Late charges and accrued interest
Total:
?
$6437.07
2
Plaintiff desires a money judgement for the expenses,
together with an appropriate judgement extinguishing claim or
interest Defendant may have in the property,
III, STATEMENT OF ISSUES:
1, Did Defendant commit a default of Agreement of Sale?
2. If so, is Defendant entitled to cure by payment of
accrued arrearages or of the entire accelerated amount?
IV, UNUSUAL ISSUES/TRIAL PROBLEMS
Plaintiffs anticipate no unusual trial issues or problems.
V, WITNESSES:
1,2. Plaintiffs
VI, EXHIBITS
1, Agreement of Sale
2. Business records on payments received
3, Tax statements
4, Water and sewer charge statements
5. Notices sent to Defendant
6. Calculation of charges
7, Litigation costs, including attorney's fees
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II, STATEMENT OF ISSUES:
1. Is Defendant in default under the terms of the parties'
sales agreement and, if so, what is the amount of the default?
2. Is Defendant required to pay Plaintiffs' attorney's fees
under the terms of the sales agreement?
3. Is Defendant entitled to cure the default by payment of
accrued arrearages, or is he required to pay the entire
accelerated amount?
III, UNUSUAL ISSUES/TRIAL PROBLEMS:
None anticipated.
IV, WITNESSES:
1, Dennis Semancik (Defendant)
2. Defendant reserves the right to call other witnesses
upon reasonable notice to the court and Plaintiffs' counsel,
V. EXHIBITS:
1. Installment Sales Agreement
2. Notice of Default and Intent to Foreclose
3. Letter to Plaintiffs' counsel dated May 20, 1997,
offering to cure the default
4. Account statements sent by Plaintiffs to Defendant
5. Defendant reserves the right to introduce other relevant
documents, upon reasonable notice to the court and Plaintiffs'
counsel.
VI, STATUS OF SETTLEMENT NEGOTIATIONS:
The parties are actively pursuing settlement negotiations
and appear to be close to an agreement.
Respectfully submitted,
/
Philip C Briganti
Attorney for Defendant
LEGAL SERVICES, INC.
a Irvine Row
Carlisle, Pa 17013
(717) 243-9400
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SI::MANCIK DENNIS
R. Thomas Kline
. Sherlff. who being duly sworn accordlng
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to law, says, that he made a dlligent. search and lnqulry for the wlt.hln
named defendant, to Wlt: SEMANCIK D~:NNIS
but was unable to locate Hlm
ln hlS balllwlck.
He therefor~ returns
the COMPLAINT - EJ~CTMENT
NUTTO:
tltH flJUN[I , as to the withln named defendant
S~:MANCIK DI::NNts
S rXn:EN ATTEMPTS AT SERV 10: W~:RE MADE I:lUT [. I:: FT .
WAS Nllf AT HUM~: OR WUULUN' I' AW;WI::H I'IW DljUR.
,;herlff's Cost.s:
Docket.ing
Service
Affldavit
Surcharge
11,\.00
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:-50 anS)ol'E"f" S :
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R. Thomas IUln~. Sherlff
$~B' KENNFTH WISE
1'12/14/1997
Sworn ann subscribed to before
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DAVID WAGNER AND
VANNEE (GRISTICK) WAGNER,
Plaintiffs
COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PA
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V,
CIVIL ACTION - LAW
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NO.: tj 7 J.'!) lUll' \,.,b'l.",
IN EJECTMENT
DENNIS SEMANCIK,
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 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,
Court Administrator - Fourth Floor
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240-6200
NOTICIA
Le han demandado a usted en la corte, Si usted quiere
defenderse de estas 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 0 en persona 0 por abogado y archivar en la corte en forma
escrita sus defensas 0 sus objectiones alas demandas en contra de
su persona, Sea avisado que si usted no se defiende, la corte
tomara medidas y puede cntrar una orden contra usted sin previo
aviso e notificacion y por cualquier queja 0 alivio que es pedide
en la petie ion de demanda. Usted puede perder dinero 0 sus
propiedades 0 ostros derechos importantes para usted.
LLEVE E5TA DEMANDA A UN ABODAGO INMEDIATAMENTE, 51 NO TIENE
ABOGADO 0 51 NO TIENE EL DINERO 5UFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME paR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR
ASISTENCIA LEGAL,
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Court Administrator - Fourth Floor
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240-6200
5, On or about July 29, 1996, Plaintiffs notified Defendant
that they were declaring him in default of the aforesaid agreement
of sale in the following particulars:
A, Failure to make monthly payments within thirty (30)
days starting in February, 1996, and continuing to date.
S, Failure to pay water and sewer charges and continuing
to date.
C, Failure to maintain fire and extended coverage
insurance on the premises.
6, Defendant was sent a notice of default and an opportunity
to cure. Attached hereto as Exhibit C is a copy of the said notice
sent to Defendant. Said notice was sent by certified mail on or
about July 5, 1996, and by first class United states mail on or
about July 29, 1996.
7, Defendant currently owes the following charges:
A, Monthly installment payments of $400.00 from November
1, 1996, to date,
S, Water, sewer, taxes as follows:
Charges for late payment of installment payments, water and sewer
payments, and taxes continue to accrue.
B. Defendant continues in occupancy of the premises and
refuses to surrender possession of the aforesaid premises to
Plaintiffs,
9. Under the agreement, Plaintiffs are entitled to reasonable
attorney's fees, which fees are anticipated at a minimum amount of
2
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ADDENDUM
ALL THAT CERTAIN tract or parcel of land situate in the Borough of
New Cumberland, County of Cumberland, state of Pennsylvania, more
particularly bounded and described as follows, to wit:
BEGINNING at a point on the northern line of Ninth street, at a
distance of 90 feet measured in an easterly direction from the
northeast corner of Ninth Street and a 13.5 foot alley, said alley
having been increased in width from 10 feet by the addition of the
western 1,5 feet of Lot No. 38 and the eastern 2 feet of Lot No. 61
on the plan of lots hereinafter mentioned; thence North 47 degrees
00 minutes West for a distance of 10 feet to a point on the
southerly side of a 10 foot alley; thence south 43 degrees 00
minutes West along the southerly side of said alley for a distance
of 22,50 feet to a point on a line running through the center of
the partition wall of a double frame house erected on the lot
herein described and the lot adjoining on the west; thence along
said center line South 47 degrees 00 minutes East for a distance
of 100 feet to a point on the northerly line of Ninth Street;
thence along said northerly line of Ninth street North 43 degrees
00 minutes East for a distance of 22.50 feet to the place of
BEGINNING.
HAVING THEREON erected the eastern half of a double frame dwelling
house and being part of Lot No. 37 on the Plan of Lots known as
Seven Maples No.1, said plan recorded in Cumberland County
Recorder's Office in Plan Book 1, page 94.
UNDER AND SUBJECT, NEVERTHELESS, to conditions, restrictions and
easements of prior record pertaining to said premises.
BEING the same premises which Vannee A. Gristick and David H,
Wagner, husband and wife, by their deed dated December 22, 1993 and
recorded on December 29, 1993 in the Office of the Recorder of
Deeds of Cumberland County, Pennsylvania in Deed Book 36,
Vol. S, Page 710, granted and conveyed unto Vannee A. Wagner and
David H. Wagner, the Grantors herein,
EXlIInIT "A"
INSTALLMENT SALES AGREEMENT
THIS AGREEMENT, made this ~ day Of~~
1995, by and between VANNEE A. WAGNER and DAVID H. GNER, Husband
and Wife, hereinafter referred to as "SELLERS"
-AND-
DENNIS SEHANCIK
hereinafter referred to as "BUYER".
The parties hereto, with intent to be legally bound, do hereby
agree, covenant and represent as follows:
1. SALE AND PURCHASE. The SELLERS shall sell and convey to
BUYER, who shall purchase, all that certain tract or parcel of
ground with the improvements thereon erected as is, located at 341
Ninth Street, New Cumberland, Cumberland County, Pennsylvania, as
more fully described on Exhibit "A" attached hereto and made a part
hereof, hereinafter referred to as the "Premises", upon the
following terms and conditions. The sale includes whatever
electric, heating, plumbing fixtures, systems and eqUipment and all
fixtures permanently affixed or attached to the "Premises".
2. PURCHASE PRICE. The price or consideration to be paid
shall be SIXTY-TWO THOUSAND and XX/l00 ($62,000.00) Dollars, which
shall be paid to SELLERS by the BUYERS in the following manner:
(a) The sum of One and XX/l00 ($1.00) Dollar tendered in
good faith at the time the BUYER executes and presents this
Agreement, the receipt of which is hereby acknOWledged;
(b) The sum of Sixty One Thousand Nine Hundred Ninety-
Nine and XX/l00 ($61,999.00) Dollars together with interest at the
rate of Three (3%) Percent per annum, shall be paid in equal
monthly installments of Four Hundred and XX/l00 ($400.00) Dollars
per month, beginning on the first (1st) day of June, 1995, and on
the first day of each month thereafter with a final payment of the
balance of the monies, THIRTY NINE THOUSAND ONE HUNDRED TWENTY-NINE
and 76/100 ($39,129.76) DOLLARS, due on or before June 1, 2002.
Each of said payments shall be applied first to interest and the
balance to principal.
1
~.^H 16116
(c) The BUYER shall have the right to prepay the said
purchase price in whole or in part at any time without fee or
penalty.
3. QUIET ENJOYMENT. SELLERS covenants to allow BUYER quietly
and peaceably to enjoy possession of the premises free from
interference or interruption of SELLERS or any person claiming
under or through SELLERS and SELLERS represents to BUYER that they
have sufficient ownership interest in the premises to enter into
and carry out the provisions of this Agreement.
4. DEED IN ESCROW. The parties acknowledge that SELLERS have
executed a deed to the premises in recordable form bearing even
date herewith, to be delivered to the BUYER. The parties agree
that the deed shall not be recorded now and that if this Agreement
is terminated, and if BUYER'S interest in the premises is forfeited
due to a default by the BUYER hereunder, such deed shall be
destroyed and shall be void and of no force and effect. The
parties further agree that the said deed shall immediately
hereafter be transmitted to Maryann Murphy, Esquire, BUYER'S
attorney, as escrow agent, to be held in escrow as above described.
5, SETTLEMENT AND POSSESSION.
(a)
settlement shall
September, 1995;
Time is considered to be of the essence and
be had on or before the fifteenth (15th) day of
(b) In the event that the BUYER fails to appear at
settlement, then the SELLERS, at their option, may declare this
Agreement null or void; and
(c) Possession shall be given to BUYER at the time of
settlement.
6. "AS IS" CONDITION. The BUYER has inspected the property
and does not rely on any representations made by the SELLERS
relating to any condition of the property or any repairs which may
be required thereto. The BUYER agrees to purchase the said property
in an "AS IS" condition.
7. REAL ESTATE TAXES. INSURANCE. SEWER. WATER and GARBAGE:
Real estate taxes, water and sewer rents, if any, and other
lienable items of a similar nature, shall be apportioned as of the
date of possession and settlement hereof and shall thereafter be
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borne and paid for by the BUYER prior to any penalty period.
Failure to pay prior to the penalty period may be considered a
default of the terms of the Agreement by the SELLERS. SELLERS agree
to promptly forward to BUYER any tax statements issued by the
taxing authorities, insurance invoices and sewer, water and garbaga
invoices which they may hereafter receive. BUYER shall provide
SELLERS with proof of payment of said real estate taxes, insurance,
sewer, water and garbage charges promptly after payment is made.
All realty transfer taxes in effect at the time of final
settlement, which term means when a formal deed is tendered for
recording by the SELLERS to the BUYER and levied upon by the
Commonwealth of Pennsylvania, or any potential subdivision thereof,
shall be paid by the BUYER.
8. REAL ESTATE TRANSFER TAXES: All realty transfer taxes in
effect at the time of final settlement, which term means when a
formal deed is tendered for recording by the SELLERS to the BUYER
and levied upon by the Commonwealth of Pennsylvania, or any
potential subdivision thereof, shall be paid one half by SULLERS
and one half by BUYER.
9. UTILITIES. BUYER shall be responsible for all utilities
consumed in connection with the use of said premises.
10. INSURANCE. BUYER agrees to maintain at his expense fire
and extended coverage insurance on the premises in an amount not
less than Sixty-Two Thousand ($62,000.00) Dollars with the
designated loss payee being the SELLERS herein, and BUYER as their
respective interests may appear. BUYER shall acquire and keep in
full force and effect during the term of this Agreement liability
insurance of at least One Hundred Thousand ($100,000.00) Dollars
for accident, injury or death to any person or to property, and One
Hundred Thousand ($100,000.00) Dollars for accident, injury or
death to persons or property arising out of anyone occurrence,
with SELLERS being named as additional insureds.
11. DESTRUCTION. Destruction of or damage to any building 'If
other improvement now or hereafter placed on the premises, whether
from fire or any other cause, shall not release the BUYER from any
of his obligations under this Agreement; it being expressly
understood that the BUYER bears all risk of loss to or damage of
the premises from the date of possession thereon.
12. CONDEMNATION. If the whole or part of the premises shall
be condemned by eminent domain, or acquired in lieu of
3
condemnation, for any public or quasi-pUblic use or purpose, BUYER
shall be entitled to the entire award and is hereby authorized to
suttle any award without the consent of SELLERS, but BUYER shall
not be released from any of their obligations under this Agreement.
BUYER agrees to pay SELLERS in full their obligation hereunder this
Agreement upon receipt of such an award.
13. COMPLIANCE WITH LAWS. BUYER shall not violate any law,
rule or ordinance of any governmental authority having jurisdiction
over the premises in connection with his use of the premises.
14. MAINTENANCE. BUYER shall maintain and repair the premises
(including any improvements thereto made or caused to be made by
BUYER) in good condition during the terms of this Agreement.
15. BUYERS DEFAULT. The occurrence of any of the fOllowing
shall constitute a default by BUYER:
(a) Failure to make any monthly installment on account
of the purchase price when due, if the failure continues for ten
(10) days; failure to pay all items set forth in Paragraph 7 of
this Agreement prior to any penalty period; failure to maintain
insurance coverage as provided in Paragraph 10 of this Agreement;
SELLERS shall not be required to give any notice to cure any of
these defaults before proceeding with any legal or equitable rights
they may have; notice has been given by SELLERS to BUYER;
(b) Failure to perform any other provision of the
Agreement if the failure to perform is not cured within fifteen
(15) days after notice has been given by the SELLERS to the BUYER.
Provided, however, if the default cannot reasonably be cured within
fifteen (15) days, BUYER shall not be in default of this Agreement
if BUYER commences to cure the default within the fifteen (15) day
period diligently and in good faith continue to cure the default.
Notices required under this Paragraph shall specify the
alleged default and shall demand that the BUYER perform the
provisions of this Agreement as the case may be, wi thin the
applicable period of time, or be sUbject to SELLERS' remedies in
the event of default by BUYER.
16. PERSONALTY: All plumbing, heating and light ing
fixtures, and systems appurtenant thereto and forming a part
thereof, as well as ranges, laundry tubs, T.V. antennas, masts and
rotor systems, together with screen storm sash and/or doors,
shades, awnings, venetian blinds, couplings for automatic washers
and dryers, etc., radiator covers, cornices, kitchen cabinets,
4
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drapery rods, drapery rod hardware, curtain rods, curtain rod
hardware, fixtures, other permanent fixtures etc., all trees,
shrubbery, plantings now in or on property, and remaining heating
and cooking fuels stored on the premises, if any, unless
specifically excepted in this Agreement, shall be included in the
sale and purchase price. None of the above mentioned items shall
be removed by the SELLERS from the premises after the date of this
Agreement. SELLERS shall deliver the good title to all the
articles described in this paragraph, and any other fixtures or
items of personalty specifically scheduled and to be included in
this Sale.
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17. FINAL SETTLEMENT: Final settlement shall take place on
or before June I, 2002. In the event that BUYER fails to make
final settlement on or before June 1, 2002, or within any extension
of said time granted by SELLERS to BUYER, this Agreement shall be
deemed null and void and the amount paid by the BUYER to SELLERS
shall be forfeited as liquidated damages. If this Agreement is
contingent upon financing, it is understood and agreed that if,
after full cooperation of BUYER, aforesaid financing is not
obtained the deposit shall be returned, less any expense incurred
on behalf of BUYER, and this Agreement shall be null and void.
18. STATUS OF WATER AND SEWER: SELLERS warrant that this
property is serviced by Public water and Public sewer. Further,
SELLERS warrant that these systems are fUlly paid for and, as of
the date of this Agreement, are in satisfactory operating
condition. If aforesaid systems are private, SELLER warrants that
they have no knOWledge or information that pUblic water and sewer
will be installed for at least six (6) months after the date of
settlement aforesaid.
19. MUNICIPAL IMPROVEMENTS: SELLERS have no notice of
municipal improvements such as sidewalks, curbs or any other
improvements.
20. ADJUSTMENTS AT SETTLEMENT: Taxes, rents, water and sewer
rents and all other periodic claims and charges upon the above
described premises shall be apportioned at the time of settlement.
Purchase price includes fuel oil remaining in the tank at the time
of settlement.
21. RISK OF LOSS: SELLERS shall bear the risk of loss from
fire or other casualty until time of settlement. In the event of
damage to the property by fire or other casualty, BUYER shall have
the option of rescinding this Agreement and receiving hand money
5
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY
:
On this, the day of , 1995, before me, a
Notary PUblic, the undersigned officer, personally appeared VANNEE
A, WAGNER and DAVID H. WAGNER, known or satisfactorily proven to be
the persons whose names are subscribed to the within instrument,
and acknowledged that they executed the same for the purpose
therein contained,
IN WITNESS WHEREOF, I hereunto set my hand and official seal,
(SEAL)
Notary Public
My Commission expires:
COMHOHWBALTH OF PENNSYLVANIA
.
.
: 55:
COUNTY
.
.
On this, the day of , 1995, before me, a
Notary PUblic, the undersigned officer, personally appeared DENNIS
SEMANCIK, known or satisfactorily proven to be the person whose
name is subscribed to the within instrument, and acknowledged that
he executed the same for the purpose therein contained,
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
(SEAL)
Notary Public
My Commission expires:
NOTICE OF DEFAULT
AND INTENT TO FORECLOSE
DATE:
Re: Account No.:
Address: 341 Ninth street, New cumberland, Pennsylvania
TO: Dennis semancik
This is a notice of default and of our intent to foreclose
on your agreement of sale. Please read all of this Notice.
FROM: Vannee A, Wagner and David H. Wagner
The AGREEMENT OF SALE held by Vannee A. Wagner and David H,
Wagner (hereinafter we, us, or our) on your property located at
341 Ninth street, New Cumberland, Cumberland County, Pennsylvania,
IS IN SERIOUS DEFAULT (because you have not made payment for
taxes, home owners insurance, sewer or trash). The total amount
now required to cure this default, or in other words, get caught
up in your payments, as of the date of this letter, is $1,019.92.
You may cure this default within THIRTY (30) DAYS of the
date of this letter, by paying to us the above amount of
$1,019.92, plus any additional monthly payments and late charge
which may fall due during this period. Such payment must be made
either by cash, cashier's check, certified check or money order,
and made at the office of Kenneth A. Wise, Esquire, 126 Locust
street, Harrisburg, PA,
If you do not cure the default within THIRTY (30) DAYS, we
intend to exercise our riqht to accelerate the aqreed upon
pavments. This means that whatever is owing on the original
amount borrowed will be considered due immediately and you may
lose the chance to payoff the original agreement of sale in
monthly installments. If full payment of the amount of default is
not made within THIRTY (30) DAYS, we also intend to instruct our
attornevs to start a lawsuit to foreclose on the propertv. If
foreclosed. the property will be sold by.the Sheriff to pav off
the debt. If we refer your case to our attorneys, but you cure
the default before they begin legal proceedings against you, you
will still have to pay the reasonable attorney's fees, actually
incurred, up to $50.00. However, if legal proceedings are started
against you, you will have to pay the reasonable attorney's fees
even if they are over $50.00. Any attorney's fees will be added
to whatever you owe us, which may also include our reasonable
costs. If YOU cure the default within the thirty dav period. YOU
will not be required to pay attorney's fees,
We may also sue you personally for the unpaid principal
balance and all other sums due under the agreement of sale.
We may also sue you personally for the unpaid principal
balance and all other sums due under the agreement of sale,
If you have not cured the default within the thirty day
period and foreclosure proceedings have begun, vou still have the
riqht to cure the default and prevent the sale at anv time UP to
one hour before the Sheriff's foreclosure sale. You mav do so bv
pavinq the total amount of the unpaid monthlY payments plus any
late or other charqes then due. as well as the reasonable
attorney's fees and costs connected with the foreclosure sale (and
perform anv other requirements under the aqreement of sale.) It
is estimated that the earliest date that such a Sheriff's sale
could be held would be approximately January 9, 1997 A
notice of the date of the Sheriff sale will be sent to you before
the sale. Of course, the amount needed to secure the default will
increase the longer you wait. You may find out at any time
exactly what the required payment will be by calling us at the
following number: 238-3838. This payment must be in cash,
cashier's check, certified check, or money order, and made payable
to us at the address stated above.
You should realize that a Sheriff's sale will end your
ownership of the mortgage property and your right to remain in it.
If you continue to live in the property after the Sheriff's sale,
a lawsuit could be started to evict you.
You may have additional rights to help protect your interest
in the property. YOU HAVE THE RIGHT TO SELL THE PROPERTY TO
OBTAIN MONEY TO PAY OFF THE MORTGAGE DEBT, OR TO BORROW MONEY FROM
ANOTHER LENDING INSTITUTION TO PAY OFF THIS DEBT. (YOU MAY HAVE
THE RIGHT TO SELL OR TRANSFER THE PROPERTY SUBJECT TO THE
AGREEMENT OF SALE TO A BUYER OR TRANSFEREE WHO WILL ASSUME THE
MORTGAGE DEBT PROVIDED THAT ALL THE OUTSTANDING PAYMENTS, CHARGES,
AND ATTORNEY'S FEES AND COSTS ARE PAID PRIOR TO OR AT THE SALE AND
THAT THE OTHER REQUIREMENTS UNDER THE AGREEMENT OF SALE ARE
SATISFIED.) CONTACT US TO DETERMINE UNDER WHAT CIRCUMSTANCES THIS
RIGHT MIGHT EXIST. YOU HAVE THE RIGHT TO HAVE THIS DEFAULT CURED
BY ANY THIRD PARTY ACTING ON YOUR BEHALF.
If YOU cure the default. the aqreement of sale wi 11 be
restored to the same position as if no default had occurred.
However, you are not entitled to this right to cure your default
more than three times in any calendar year.
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van?ee A. Wa.gner,' / '
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Dav1d H. Wagner ?
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DAVID WAGNER AND . COURT OF COMMON PLEAS,
,
VANlfEE (GRISTICK) WAGNER, . CUMBERLAND COUNTY, PA
.
:
Plaintiffs . CIVIL ACTION - LAW
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V, : NO. : 97-252
.
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DENNIS SEMANCIK, : IN EJECTMENT
.
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Defendant ,
,
ORDER) .. ~
AND NOW, to wit, this 2...!! day of Jlf1"M/'
, 1997, in
consideration of Plaintiff's MOTION OF PLAINTIFF TO EFFECT SERVICE
OF COMPLAINT BY ALTERNATE MEANS it is hereby ordered as follows:
1, Tom Taylor, Taylor Investigation, is hereby appointed by
this court especially to serve a certified copy of the complaint on
Defendant. In case the nominee is for any reason unable to serve
process, Plaintiff may secure another competent adult individual
who is not related to the parties and who has no interest in this
case to serve, In such case, Plaintiff shall make a request nunc
pro tunc to have that third party appointed to serve process.
2, Process shall be served by personally handing a certified
copy of the complaint together with the required notices to
Defendant and by stating in his presence the following:
Mr, Dennis Semancik, I am giving you a certified copy of a
Complaint in an action brought against you by Plaintiffs Vannee
Wagner and David Wagner. This is an action to declare default on
an Agreement of Sale for the property situated at 341 Ninth Street,
New Cumberland, Cumberland County, Pennsylvania. You are
required to defend this, or a judgement by default may be entered
against you. Please see the notice at the front of this document
for further details,
Verified proof of service, signed by the Server, shall be
served,
BY THE
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4. Plaintiff, David Wagner, on March 3, 1997, paid a personal
visit to the property at 341 Ninth street, New Cumberland,
pennsylvania. He determined from his inspection that the property
is apparently occupied, and apparently occupied by Defendant.
Attached hereto as Exhibit B is a copy of the verified statement of
David Wagner.
5. In light of the circumstances recited above, the most
likely way of effecting personal service on Defendant and giving
Defendant actual notice would be to personally deliver the
Complaint to Defendant by a person who does not appear to be a
member of the Sheriff's Office,
6, Movant nominates Tom Taylor, Taylor Investigation to
effect personal service.
7, In the case of the above nominee, he:
A. is a competent adult individual;
B. is not a party to these proceedings, nor is he
related to a party to these proceedings, nor does the nominee have
any financial interest in the outcome of this proceeding,
C. The above nominee either know Defendant personally
or, through photographs and descriptions supplied by Plaintiff, are
aware of his appearance,
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WHEREFORE, Plaintiffs respectfully request that pursuant to
Pa.R.C.P. Rule 430 that an Order be issued allowing the Complaint
to be personally served on Defendant by the above named nominee, or
another competent adult individual who is not related to the
parties and who does not have a financial interest in the outcome
of this proceeding.
Respectfully submit~~d,
Date:
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KENNETH A. WISE, ESQUIRE
ID NO, 16142
126 LOCUST STREET
p, 0, BOX 11489
HARRISBURG, PA 17108-1489
(717) 238-3838
, , it'
ATTORNEY FOR PLAINTIFFS
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VERIFICATION
,
upon my personal knowledge or information and belief, I hereby
verify that the facts averred in the foregoing MOTION OF PLAINTIFF
TO EFFECT SERVICE OF COMPLAINT BY ALTERNATE MEANS are true and
correct to the best of my knowledge, information and belief. I
understand that false statements or averments therein made will
subject me to the criminal penalties of 18 Pa.C.S. section 4904
relating to unsworn falsification to authorities.
,
,{ - /,. <,.
Date:, /"11,'/
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Kenneth A. Wise
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DAVID WAGNER AND , COURT OF COMMON PLEAS,
,
VANNBB (GRISTICK) WAGNER, . CUMBERLAND COUNTY, PA
.
,
,
Plaintiffs CIVIL ACTION - LAW
V. NO. : il / r~
DENNIS SBHANCIK, IN EJECTMENT
Defendant :
RETURN OF SERVICE
m /1 7
On the G day of fly .. ;n- 7:0:;' v-'tr , 1997, I, _
/H.!l1'1 H.$ E. ----;1:-., 1 Lv 1.. , served j) &,v,v 1..1'
J'EI1 t17JCI K with the foregoing COMPLAINT by: r~:!JcJlVn I'L'1
H /j7.;/)1 '" ~ 1/ ~ H 1/',. th- -77-1 F (JJ.-~;N1I0L- V.r-Jv.JHl/v'
G-,-lSr ;JV/VliJ(L N/bH fcJ-'/lJuL.., )/~v/',i/fv \,.'"h....v7'-' ,j<l.
I verify that the statements in this Return of Service are
true and correct. I understand that false statements herein are
made subject to the penalties of 18 Pa, C.S.A. ~4904 relating to
unsworn falsification to authorities.
Date:
os- DC. - 97
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DAVID WAGNER and
VANNEE (GRISTICK) WAGNER,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 97-252 CIVIL TERM
IN EJECTMENT
V,
DENNIS SEMANCIK,
Defendant
NOTICE TO PLEAD
TO: David Wagner and Van nee (Gristick) Wagner
You are hereby notified to file a written response to the
enclosed New Matter within twenty (20) days from service hereof
or a judgment may be entered against you.
Date:
S-!c27/ct 7
, I
DAVID WAGNER and
VANNEE (GRISTICK) WAGNER,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-252 CIVIL TERM
V.
IN EJECTMENT
DENNIS SEMANCIK,
Defendant
ANSWER
COMES NOW the defendant, Dennis semancik, by counsel, Philip
C, Briganti, Esquire, Legal Services, Inc., and as his Answer to
plaintiffs' complaint, states as follows:
1. Admitted.
2. Admitted.
3, Admitted.
4, Admitted.
5, Admitted in part and denied in part.
Defendant admits
that on or about July 29, 1996, Plaintiffs mailed him the Notice
of Default and Intent to Foreclose attached to Plaintiffs'
Complaint as Exhibit "C", and that said Notice informed him that
Plaintiffs were declaring him in default of the Installment Sales
Agreement because he had not paid sewer charges.
However,
Defendant denies that on or about July 29, 1996, Plaintiffs
notified him that they were declaring the agreement in default
for failure to make monthly payments within thirty (30) days
starting in February, 1996, and continuing to date; for failure
to pay water charges and continuing to date; and for failure to
maintain fire and extended coverage insurance on the premises.
6. Admitted in part and denied in part. Defendant denies
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that he was sent a copy of said Notice by certified mail on or
about July 5, 1996, as he never received a copy of said Notice
sent by certified mail and is without sufficient knowledge or
information to determine the truth of this averment. However,
Defendant admits that he was sent a copy of this Notice by first
class United states mail on or about July 29, 1996.
7. Admitted in part and denied in part, Defendant admits
that he owes monthly installment payments of $400.00 from
November 1, 1996, to date, and certain sewer and tax charges,
which amount he is presently unable to determine. Defendant
denies that he owes water charges.
8, Admitted,
9, Denied. Defendant denies that the agreement provides
that Plaintiffs may recover attorney's fees, and that reasonable
attorney's fees in this matter can be anticipated in the amount
of $2500.00 or greater if these proceedings are contested.
NEW MATTER
I. Estoppel
10. In Paragraph 6 of Plaintiffs' Complaint, Plaintiffs
aver that Defendant was sent a Notice of Default and Intent to
Foreclose, which Notice is attached to Plaintiffs' Complaint as
Exhibit "C" and incorporated herein by reference.
11. In reasonable reliance on said Notice, which affords
Defendant the opportunity to cure a default in his obligations
under the agreement of sale, Defendant made arrangements to
procure the funds necessary to cure the default and, through
counsel, offered to cure the default.
12, Plaintiffs, through counsel, contrary to the
representations set forth in their Notice, rejected Defendant's
offer to cure the default, and demanded that Defendant completely
payoff the loan in order to resolve this case.
13, Because of Plaintiffs' representations in said Notice,
plaintiffs are estopped from refusing to permit Defendant to cure
the default in his obligations under the agreement of sale.
II. Waiver
14. Defendant repeats and incorporates by reference his
averments set forth above in paragraphs 10 through 13.
15. By virtue of Plaintiffs' Notice of Default and Intent
to Foreclose, plaintiffs have waived any right they may have had
to foreclose upon the agreement of sale or pursue the ejectment
of Defendant from the premises without affording Defendant the
opportunity to cure the default.
WHEREFORE, Defendant respectfully requests that judgment be
entered in his favor, that the relief requested by plaintiffs be
denied, and that he be granted such other and further relief as
this Court may deem reasonable and just.
Respectfully submitted,
/
/;4 o--:?-
Philip Brigan
Attorney for Def ndant
LEGAL SERVICES, INC.
a Irvine Row
Carlisle, pa 17013
(717) 243-9400
DAVID WAGNER and
VANNEE (GRISTICK) WAGNER,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-252 CIVIL TERM
V.
DENNIS SEMANCIK,
Defendant
IN EJECTMENT
CERTIFICATE OF SERVICE
I, Philip C. Briganti, hereby certify that a copy of the
foregoing Notice to Plead, Answer and New Matter is this 27th day
of May, 1997, being served upon Kenneth A. Wise, Esquire, 126
Locust Street, P.O. Box 11489, Harrisburg, PA 17108-1489 by
regular mail, postage prepaid.
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DAVID WAGNER AND
VANNEB WAGNER,
COURT OP COMMON PLEAS,
CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
Plaintiffs
v.
NO.: 97-252
DENNIS SEKANCIK,
IN EJECTMENT
Defendant
RESPONSE TO NEW HATTER
10. Admitted and denied. Admitted that a Notice of Default
was sent. Because no Exhibit "c" was attached to Plaintiff's copy
of Answer and New Matter, Plaintiff is without information to form
a belief as to the truth of the averment. Proof is demanded.
11. Whatever document it is speaks for itself. As to the
remaining allegations, after reasonable investigation, Plaintiffs
are without information sufficient to form a belief as to the truth
of the averment.
Proof is demanded.
Plaintiffs believe, and
therefore aver, that no sincere arrangements have been made since
the so called ability to cure occurred on the heels of several
weeks where Defendant was ducking service of process, and where
Plaintiffs had to resort to getting a special order of process to
serve him.
12. [No allegation made in paragraph 12.J
13. This is a legal conclusion for which no response is
necessary. To the extent that one is, it is denied and proof is
demanded.
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VERIPICATION
Upon my personal knowledge or information and belief, I hereby
verify that the facts averred in the foregoing RESPONSE TO NEW
MATTER are true and correct to the best of my knowledge,
information and belief.
I understand that false statements or
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averments therein made will subject me to the criminal penalties of
18 Pa.C.S. section 4904 relating to unsworn falsification to
authorities.
Date: "S--- '"2)0 C( 7
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Vannee (Gristick) Wagn r
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CERTIPICATION OP SERVICE
I hereby certify that I am this day serving a true and correct
copy of the attached RESPONSE TO NEW MATTER on the following
individual by First Class U.S. Mail addressed as follows:
Philip c. Briganti, Esquire
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
Date:
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KE~~~/A. j~rsE,
ID NO. 16142
l26 LOCUST STREET
P. O. BOX 11489
HARRISBURG, PA 17108-1489
(717) 238-3838
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ESQUIRE
ATTORNEY FOR PLAINTIFFS
CERTIPICATION OP SERVICE
I hereby certify that I am this day serving a true and correct
copy of the attached PRAECIPE FOR LISTING CASE FOR TRIAL on the
fOllowing individual by First Class U.S. Mail addressed as follows:
Philip C. Briganti, Esquire
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
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Date:
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K~~trH A.' WISE, ESQUIRE
ID NO. 16142
126 LOCUST STREET
P. O. BOX 11489
HARRISBURG, PA 17108-1489
(717) 238-3838
ATTORNEY FOR PLAINTIFFS
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted In duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one)
for JURY trial at the next term of civil courl.
( XX) for trial without a Jury.
.
............................................................................................................................................................................
CAPTION OF CASE
(enllre capllon must be stated In full)
(check one)
Assumpsit
DAVID WAGNER AND VANNEE WAGNER
Trespass
Trespass (Motor Vehicle)
(Plaintiff)
~X) In Fjoctmont
(olher)
vs,
DENNIS SEMANCIK
Thelrlalllstwillbecalledon 1\11g 17,lqq7
and
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Trials commence on SPpt 1 Ii. 1 qq7
Pretrials will be held on ~l1g 77 1 qq7 1:-
(Briefs are due 5 days before pretrials.)
(Defendant)
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(The party listing this case for trial shall provide
forthwith a copy of the praecipe to all counsel,
pursuant to local Rule 214-1.)
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No. 97-252 Civil
Indicate the attorney who willlry case for the party who files this praecipe: ___________
Kenneth A. Wise, 126 Locust Street, Harrisburg, PA 17101
Indicate trial counsel for other parties if known: Philip C. B};j,,g.anjj'L ____.... ."'___'_
Legal Services, Inc., 8 Irvine Row, Carlisle, PA J,7011____________
This case Is ready lor trial.
Signed: 11I-i~~;~~.Z~ ..~"~.;~:.---
Print Name: _.!..enn~!.~. ~.._~!?e, Esquire
Allorney for: .~.l~i_nti_f.fs_ _ .'_ _____..._u
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Date: _Y.. _____~ _ _... __...._. ___
CERTIPICATION OF SERVICE
I hereby certify that I am this day serving a true and correct
copy of the attached Corrected Praecipe For Listing Case For Trial
on the following individual by First Class U.S. Mail addressed as
follows:
Philip C. Briganti, Esquire
LEGAL SERVICES, INC.
8 Irvine Row
Carlisle, PA 17013
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mNETH' A. WISE', ESQUIRE
ID NO. 16142
126 LOCUST STREET
P. O. BOX 11489
HARRISBURG, PA 17108-1489
(717) 238-3838
ATTORNEY FOR PLAINTIFF
DAVID WAGNER and VANNEE
WAGNER.
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERlAND COUNTY, PENNSYLVANIA
vs.
97-0252 CIVIL TERM
DENNIS SEMANClK.
Defendant
CIVIL ACTION - lAW
IN RE: PRETRIAL CONFERENCE
ORDER
AND NOW. this
Ir
day of July. 1997. at the request of counsel for the
BY THE COURT,
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defendant and with the concurrence of counsel for the plaintiff, the pretrial conference in the
above captioned nonjury case set for Monday. July 28. 1997. is continued to Friday. August 29.
1997, at 9:00 a.m, in the chambers of the undersigned.
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Kevil)' A. l'less, J.
Kenneth A. Wise, Esquire
For the Plaintiffs
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Philip C. Briganti, Esquire
For the Defendant
Court Administrator
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