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Home My WebLink About97-01081 of the exhibits, and if they are unable to agree the objecting party must file a motion in limine with supporting authority by the close of business on July 31st, 2000, Any response with supporting authority must be filed by the close of business on August 3rd, 2000. If there is not an agreement as to the exhibits admissibility, we will hear argument on the motions in limine in chambers at 8:15 on Friday, August 4, 2000, The parties are directed to submit trial briefs in support of their respective positions at the commencement of trial, By the Court, William Andring, Esquire Pro Se Edward E. Guido, J, C- aplw -fY) ~ iD-1-00 'RK3 David J, Lennox, Esquire For the Defendants :mae ~l t:i' .(:::'i~"\;: r.~' -,.,'- r... .~i.::.y;....y \..I.~ . ..1 1...Ji 00 JU:1-2 fi\ 2: S! CI ".. :' "," cru'lTY ,"",,'11...._ ;,-h, \~) ..., I F-'.. ''''\.'''11''1'' tI11"';:'I~.t'J'::"\ .' WII.LlAM H, ANDRING. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY. PENNSYLVANIA v, : CIVIL ACTION. EQUITY EARL F, ARNOLD and JANICE M, ARNOLD. : No, 97.1081 EQUITY TERM Defendants CERTIFICATE OF SERVICE I. William H, Andring, hereby certify that on this, the 14'h day of October. ]999.1 served a copy of the attached document by causing it to be deposited in the United States Mail, first class postage prepaid. addressed as follows: David J, Lennox, Esq, Jan M, Wiley & Associates One South Baltimore Street DilIsburg. PA 170]9 Wi '}L; 1 I 5 1999J ~ WILLIAM H, ANDRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY EARL F, ARNOLD and JANICE H, ARNOLD , No, 97-1081 Equity t I I' , I Defendants PRETRIAL MEMORANDUM Your Honor: This prelrialmemorandul11 is being submilled for Ihe purpose of salis lying Ihe diclales of C,C,R,P.212-4, 1. Statement OCThe Basic Facts As To Liability. A, On Seplember 5, 1979. Plainliff entered inlo a long leml sales agreement whereby he agreed 10 pay all tuxes associaled with the premises, pursuuntto clause four (4) of the agreement; and B, Plainlifffurther agreed, by the signing of the agreement referred 10 in "A,".lhal he would pay all municipal charges, pursuanlto clause four (4) oflhe sales agreemenl; and C, Plainliff has failed 10 pay Ihe taxes and municipal charges associaled wilh Ihe premises as agreed; and D. Defendunt has paid all of Ihe unpaid luxes and municipal charges; and E. Therefore, Defendant should not be required to specifically performlhe lenns of the agreement of sale, as Plaintiff has breached Ihe tenns of Ihe agreement, and Ihus. comes 10 the court wilh "unclean hands", (DEFENSE TO PLAINTIFF'S 1CTlON) F, Furthennore, Plainliff is liable 10 Defendanllor Ihe unlounl of unpaid laxes and municipal charges associaled wilh the premises. The claim is nol barred by laches as no prejudice has resulted 10 Plainliff, (COUNTERCLAIM) 2. Statement OCThe Basic Facts As To Damages. As a result of PlaintifT's failure to pay taxes und municipal charges associated with Ihe premises, pursuant to the agreement heretofore referred 10, Defendanl has had 10 pay Ihose charges, 1 The damages soughl arc Ihe unpaid laxes and municipal charges associaled wilh Ihe premises, plus inleresl, cosl and allol11ey fces. along wilh any olhcr damagcs Ihe courl deems equilable under the eireumslwlces, 3. Slalcmcnl Ax To The I'rlncipalls~ucx Of Lillbilily And Damages. A, Breach of conlracl. i. In breaching clause four (4) of the agreement.l'laintill"should not be awarded specific pcrfonnnnce oflhe sales agreemenl. as Specilic l'erJormance is an equitable remedy. nnd should nol be awarded where Ihe c1aimanl comes 10 the court wilh unclean hnnds, ii. In breaching Ihe agreemenl and causing Ihe Defendanllo suITer damages. in failing to abide by Ihe paymenltenlls oflhe agreement,l'lainlilTshould be required 10 compensale Defendanl for Ihose damages. B. "Clenn Hnnds" doclrine: Speeilie performance should nol be grantcd where the one secking specific perfonllnnee comes 10 Ihe courl wilh unclewl hands, Mr, Andring is a real estate allomey nnd has olTended Ihe conscious of the court when he failed 10 abide by the lemls of a long lentl sales agreemenl. yel asks Ihe court 10 specilical1y enforce Ihe duly of Ms. Arnold under thai very agreemenl. C, Defendnnl's prayer for damages should nol be barred by laches. as I'laintilThas suncred no prejudice as a resull of Defendanl's failure 10 assert her righllo enforce paymenl of Ihe laxes and municipal charges, under Ihe agreemenl. 4. Summary Of Lcgallssucs Itcgardlng Admlssibilily Of Tcslimony, Exhibils, Or Any Olllcr Mallcr, And Lcgal Aulhorilics Rclicd On. A, Tax infol11lalion compilation. i. Rule of Evidence YU I (a) permils authenlication by any reasonablc mcans which cSlablish Ihal the item soughllo be entered is whallhe proponent claims illo be. 2 ii. Rule of Evidence 902(4) permils sdfaulhenlicaliun of public records aUlhorized by law 10 be recorded and kepI and in facl recorded and kepI. or data compilalions in W1Y form, when eertilied us correcl by a cuslodian aulhorized 10 make the cerlificaliun, I. Tax eolleclor's duly allesled record, II. Municipal delinquent charge coordinator's duly allesled record, S. The identity ofwilnesses to be called. A, Defendanl. Mrs, JWlice Arnold 6. A list of elhibits with brief identification of each. A, The sales agreemenl 8, Tux records showing ullluxes due over dules in queslion, C, Municipal churge records showing all charges due over dales in question.. 7. The current status of settlement negotiations. Defendant's seUlemenl overtures have been rebufii:d by I'luinlilT, 10 { ( ~ I q c, Wiley, Lenox & Colgan, I',C, Olle S, Baltimore Slreel Dillsburg, I' A 17019 (717) 432.9666 3 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typcwrillen and submilled in duplicate) TO THE I'ROTIIONOTARY OF CUMBERLAND COUNTY: Please list the within mailer for the next Argument Court, -----...--------...------------------.----------...------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) WILLIAM II, AND RING (1'Iaintitl) vs. EARL F, ARNOLD AND JANICE M, ARNOLD (Defendants) No. 97.]081 Civil Equity Tenn 19....2L I, State molter to be argued (i.e,. plaintiffs motion for new trial. defendant's demurrer to complaint. ete,): Plaintiffs Motion for Default Judgment against Defendants' Counterclaim and Plaintiff's Preliminary Objections to Defendants' Amended Counterclaim, 2, IdentifY counsel who will argue case: (a) for plaintiff: Address: William H. Andring. Esq, 248 Creek Road Camp lIiII,l'A 17011 David J. Lenox. Esq. Jan M. Wiley & Associates One South Baltimore Street 1',0, Box 288 Dillsburg.I'A 170]9 ), I will notify all parties in writing within two days that this case has been listed for argument. (b) for defendant: Address: 4, Argument Court Date: January 28, 1998 Dated: December 5, 1997 ~ , i WILLIAM H. ANDRING, Plaintiff IN THE COUR'J.' OF C01'1i'lOI~ PLEAS OF CUHBERLAND COllll'rY, PENNSYLVANIA v. CIVIL ACTIOU - EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, Defendants NO. 97-1081 EQUITY ~Efti'l onDER OF COUR'l' AND NOW, this ~t~tday of August, 1997, upon consideration of Defendants' Motion To Quash Subpoena and Deposition Notice, a hearing is SCHEDULED for Tuesday, Sep1:elllber 30,1997, a1: 9:00 a.Ill., in Courtroom No.5, Cumberland Coun1:Y Courthouse, Carlisle:, Pennsylvania. PENDING SAID HEARING, the subpoena and de:position notice are hereby STAYED. BY THE COURT, J William H. Andring, Esq. 248 Creek Road Camp Hill, PA 17011 Plaintiff, Pro Se Jan M. Wiley, Esq. One South Baltimore Street Dillsburg, PA 17019 Attorney for Defendants ~,~(}.....,..s..<.. '1/3/ ~1. ..J .e :rc WILLIAM H. ANDRING, I plaintiff I I V. I I EARL P. ARNOLD and JANICE M. I ARNOLD, I Defendants I IN THE COURT OP COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY No. 97-1081 Equity MOTION TO QUASH SUBPOENA AND DEPOSITION NOTICE n '.!:> ( ...J -. ~1:' . ,; I" '" . ~J I, David J. Lenox, Esquire, Attorney for Defendants. h~reby moves the Court for an Order Quashing the Subpoena and Deposition Notice (attached), dated August 21st, 1997, which were issued by Plaintiff and served upon me on or about August 22nd, 1997. Said Subpoena and Notice require me, Defendants counsel, to appear and testify and to produce documents. The reasons and grounds for the Motion to Quash are as follows: 1. Plaintiff, William H. Andring is an attorney in the state of Pennsylvania and acting as his own counsel in the above entitled action. Plaintiff has totally ignored the Pennsylvania Rules of civil Procedure with respect to a subpoena upon a person not a party, Pa.R.C.P.Nos.4009.21 - 4009.27, in that no prior notice and no opportunity for objections were given as required in Rule 4009.21. No certificate of compliance pursuant to Rule 4009.23 was made available. No written notice of intent to serve the subpoena under Rule 4009.24 was filed. 2. I am licensed to practice law in the state of Pennsylvania and I have been retained by Defendants to defend them in the present action. I am acting in my professional capacity as o "11 ..I ~ ~ -n ;\ .:- , "g >-. " " 1--' I) in " .., , , '~1 .", attorney and counselor of law with no relationship with or connection to the Defendants except with respect to my representation of them in the subject matter of this action. There is no information that I have pertaining to the above action or correspondence, or records of discussion between myself and Defendants other than those obtained solely through the attorney client relationship with the Defendants and as such is privileged and constitutes privileged communication and information. Accordingly, I am not a fit or proper person for examination under the Pennsylvania Discovery Rules. 3. The Plaintiff has also served both of the above named Defendants with documents entitled "Deposition Notice" and "Notice to Attend" (attached). Each of those documents request the identical information which Plaintiff requests in his subpoena served on me. Therefore, all properly discoverable materials and documents in the above entitled action will be provided by the Defendants themselves. 4. It causes Defendants unreasonable annoyance, oppression and burden to permit Plaintiff to subpoena Defendant's Attorney for the exact same information which will be provided by Defendants in that such testimony or deposition if offered by me as Defendant's attorney could lead to my possible disqualification as their trial attorney. 5. When taken together, all of the above grounds for Quashing the Subpoena and Notice: the fact that Plaintiff ignored all the proper Pennsylvania Rules of civil Procedure for pursing " William II. AIIlJrinll or helween ur on hehulf of JIUlice M. Arnold und WilliJluLlI. AlIllrinll from ~97 tlllhe presen!: uny notice made pursuunl to Ihe l.lllm Inl~sluntll'rnleclion Law, Act No, (, of 1974, rclulinll to a reul eslule inslullment sules contrnel for u properly loeulcd at 1)24 Mill Road. Ilampoell T~'wnship. Cumherland County. I'ennsylvuniu: and uny eontrnet or other allreement hetween Eurl F, Arnold und Jun M, Wiley & Associules rur the provision of leval representation or services, Iryou fuillo allend or 10 produce the documents or things required hy this suhpoena, you may he suhjeello the sanclions authorized hy Hule 234.5 orlhe I'ennsylvunia Rules or Civil Procedure. including hy nOllimiled to cosls, ullomey fees und imprisonment. Issued by: Willillln II. Andring. Esq, 248 Creek Hoad CamJlllill. I'A 170 II (717) 737.9847 IDII2(i(i()l) l)ale:-1J'-'f)~rL9_!LL, Seal orthe Court By /s/~'~1:'J..<:c:..-_f:-L.1Ji....J ,~( ~.r_ [: (-;1Yc,'2 1c'c.. r-, UF-r , ~ WILLIAM II. ANDRING. Plaintil1' IN TIlE COURT OF COMMON PLEAS CUMBERl.AND COUNTY.PENNSYLV ANIA v, CIVIL ACTION. EQUITY EARl. F, ARNOl.D and JANICE M, ARNOLD. No, 97 . 1081 EQUITY TERM Delcndunts NOTICE TO ATl'liliU To: Janice M, Arnold I. You are ordered by the Court to come to 234 North Street at Ilurrisburll Pennsylvania, on September 4. 1997 at 1:00 o'c1ock~, M, to tcstify on behalf of PlaintilT in ti..:: 2!,ove case, and to remain until excused. 2, And bring with you the following: Every bill. canceled check. reccipt. or other document or writinll of any nature relatin~ to any pavmcnt of principal. interest. taxcs. insurance. sewal1e. trash. municipal charlles or assessmcnts. or other payment of any nature made by any person pursuant to a real cst ate installment sales contract for a property located at 924 Mill Road. Ilampden Township, Cumberland County. Pennsylvania. or otherwise relatinllto or to or for the account nfsaid property. from January I. 197910 the present: every leller. writinll' or other document rclatinllto any reljuest or demand for paymcnt from any person or directed to U11Y person for the payment of principal. interest. laxes. insurance. sewalle. trash. municipal charlles or assessments, or other payment of any nalure pursuant to a real estate installment soles contract for a property located at 924 Mill Road. Ilampden Township. CUlI1hcrland County, Pennsylvania, .. or otherwise relatinl! to or to or for the account of said proocrty, from Januarv I. 1979 to the present: nny Icller, correspondence or other writinl! between or on behalf of Earl F. Arnold and William II. Andrinl! or between or on behalf of Jnnice M. Arnold and William II. Andrinl! from Jnnunrv 1. 1997 to the presen!: nny notice made pursuant to the Lonn Interest and Protection Law. Act No, 6 of 1974. rclatinl! to a real estate installment sales contract for a property located at 924 Mill Road, Hampden Township. Cumberlnnd County. I'ennsylynnia: and any contmct or other al!recment between Earl F, Arnold nnd Jon M, Wilcy & Associates for the proyision of lellal representation or services, If you fail to allend or to produce the documents or things required by this notice. you may be subject to the sanctions authorized by the Pennsylynnia Rules ofCiyil Procedure, Date: <;/,;, /r;7 I I ...., William II, Andring, Esq, 248 Creek Road Camp Hill, I'A 17011 (717) 737-9847 10# 26609 , , \ " , . ,- WILLIAM H, ANDIUNG. PlainlilT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, CIVIL ACTION. EQUITY EARL F, ARNOLD llIld JANICE M, ARNOLD, No, 97 . 1081 EQUITY TERM Defendllllls DEPOSITION NOTICE To: Earl F, Arnold I. You life ordered 10 eome 10 234 North Slreel al Ilarrisburl! , PennsylvllIlia, on Seolember 4. 1997 al 2:00 o'clock -L, M, to provide a deposition on behalf of PlaintilT in Ihe above case. llIld 10 remain unlil excused. 2, And bring with you the following: Everv bill. cllllccled check. recciol. or other document or writinl! of anv nature relatinl! to llIlV oavment of orincioal. interest. taxes. insurance. sewal!e. trash, municipal chllfl!es or assessments, or other oaymenl of llIlY nalure made by llIlY ocrson oursuanllo a real estatc inslallment sales contract for a oroocrty located al 924 Mill Road, Hamoden Townshio. Cumberland County. PennsylvllIlia, or olhcrwise rclatinl! 10 or to or for Ihe accounl of said oroocrty. from JllIluarv I. 1979 10 Ihc orcscnt: cvcrv Icllcr. wrilinl!, or othcr documcnt rclatinl! to llIlY rcuuesl or dcmlllld for oaymcnt from any ocrson or dircctcd to llIlY ocrson for Ihc oaymcnt of orincioal. intcrcst. taxcs, insurancc. scwal!e, trash, municioal chllfl!cs or asscssmcnts, or othcr oaymcnl of llIlY nature oursullIll to a rcal cstatc installmcnt salcs contract for a oroocrty locatcd at 924 Mill Road, Ilamlldcn Townshio, Cumbcrland Countv. PcnnsylvllIlia. J . \ , t I ., >. -j' ~... c: C'. ,"-- ,.' UI( " (.I: . f:'r' ..., (,J, 1'::1 Ci r" " ~.J I (' , U, i -.-. II r- .., I.J CJ- ,.) . - .. . WILLIAM H. ANDRING Plaintiff . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . I V. EARL F. ARNOLD and JANICE M. ARNOLD NO. 97-1081 EQUITY TERM Defendants IN RE: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AND PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM BEFORE HOFFER. P.J.. OLER. J.. GUIDO. J. ORDER J~~ day of FEBRUARY, 1998, Plaintiff's AND NOW, this Motion For Default Judgment in connection with Defendants' Counterclaim and Plaintiff's Preliminary Objections to Defendants' Amended Counterclaim are DENIED. Edward E. Guido, Judge William H. Andring, Pro David J. Lenox, Esquire For the Defendants Se _ ~.." I't>~.l .J./':H,/Q8, I .J:, ,-P. Isld ., ":.! ,,- ,~" , .It.; ~ I " ". ~ :y;:: ~ , 'I J Cl~ '.(, ~.:..] lJlJ , '0 . , '". - },b'LI.., '_' . ,H' .. '- .. j:U~:G-{jjl'J . NO. 97-10BI EQUITY TERM On December 2, 1997, Defendants filed their amended counterclaim. On December B, 1997, Plaintiff filed preliminary objections to Defendants' amended counterclaim. Plaintiff's Motion for default judgment and his preliminary objections to Defendants' amended counterclaim are currently before this Court for disposition. DISCUSSION MOTION FOR DEFAULT JUDGMENT Judge Bayley's order of October 2, 1997, directing the Defendants to file a more specific pleading did not set a time frame within which said pleading should be filed. We agree with Plaintiff that under the terms of Pa. Rule of Civil Procedure I028(e) the amended counterclaim should have been filed within twenty (20) days after Defendants received notice of the order. However, we do not agree that Defendants' delay until December 2, 1997, would require that the amended counterclaim be stricken and a default judgment thereon be entered in favor of Plaintiff. Although Rule 102B(e) provides that an amended pleading ..... shall be filed within twenty (20) days after notice of the order", our Courts have consistently held that the word "shall", as it relates to the pleading chapter, is to be interpreted flexibly, thus permitting exceptions in the interest of justice. See Paulish v. Bakaitis, 442 Pa.434 275 A.2d 3lB, 1971. Likewise, Pa. Rule of Civil Procedure 126 requires that: The rules shall be liberally construed to secure the just ... determination of every action or proceeding to which they are applicable. The Court at every stage of any such action or proceeding may disregard any error or defect of 2 NO. 97-1081 EQUITY TERM procedure which does not affect the substantial rights of the parties. The determination of whether or not to grant an exception to the twenty (20) day filing rule is within the broad discretion of the trial court. Francisco v. Ford Motor Comoanv, 397 Pa.Super. 430, 580 A.2d 374 1990, Peters Creek Sanitarv Authoritv v. Welch, 545 Pa.309, 681 A.2d 167 [1996].' This Court strongly feels that the interests of justice require us to deny Plaintiff's requested relief. The history of this particular case is one in which the parties had not strictly enforced the time frames required by the Rules of Civil Procedure. As noted above, Plaintiff filed his preliminary objections more than four (4) months after they were due. In addition, the docket indicates that Plaintiff's reply to Defendants' new matter was also filed more than four (4) months after it would have been due. In neither case did the Defendants object. We find that Defendants' delay was caused by their justifiable reliance on the fact that strict conformance with the time requirements of the Rules would not be insisted upon. Therefore, their delay is excusable. We also note that the amended pleading was filed twelve (12) days after Plaintiff's 'Plaintiff cites both of these cases in support of his position. However, the Francisco case involved a pleading that was filed almost four years after it was due and the Peters Creek case involved a pleading which was almost two years late. In the instant case, Defendants' amended pleading was only about forty (40) days late and was filed less than two weeks after their receipt of Plaintiff's motion for default judgment. 3 NO. 97-10BI EQUITY TERM motion for default was mailed to Defendants.' They certainly moved expeditiously to file their amended pleading once it was clear that the other side was going to insist upon strict compliance with the time frames set forth in the Rules. Therefore, Plaintiff's motion for default judgment and his request to strike the counterclaim should be, and is hereby, denied. · PRELIMINARY OBJECTIONS Plaintiff's remaining preliminary objections require very little discussion. He has asked us to dismiss the amended counterclaim for failure to comply with Judge Bayley's order of October 2, 1997. We find that Exhibits A and B to the amended counterclaim provide the specificity directed by Judge Bayley. Plaintiff also asks us to dismiss the counterclaim because it amends the prayer for judgment contained in the original counterclaim in violation of Pa. Rule of Civil Procedure I033. However, this is an equity action which is governed by Pa. Rule of Civil Procedure 152B. Pursuant to Rule 152B, "the prayer for relief may be amended as of course at any time." For the above stated reasons, Plaintiff's motion remaining 'Plaintiff's certificate of service indicates that the Motion For Default Judgment was served by depositing a copy of it in first class mail, postage prepaid, addressed to Defendants' counsel on November 20, 1997. There were four (4) weekend days and Thanksgiving in those twelve days. 'Plaintiff has not alleged any prejudice by the late filing, nor can we possibly conceive of any. 4 NO. 97-1081 EQUITY TERM preliminary objections are denied. ORDER AND NOW, this ~~~ day of FEBRUARY, 1998, Plaintiff's Motion For Default Judgment in connection with Defendants' Counterclaim and Plaintiff's Preliminary Objections to Defendants' Amended Counterclaim are DENIED. By the Court, /s/ Edward E. Guido. J. Edward E. Guido, Judge William H. Andring, Pro Se David J. Lenox, Esquire For the Defendants :sld 5 Plaintiff filed and served a Motiun for Dcfault Judgmcnt against Dclcndants' Counterclaim. predicated uponthc fi.ilure of Dclcndants tu cumply with thc Cuurt Ordcr uf Octuher 2. 1997 and Pa,R,C.I', 1028(e), On Dccember 2. 1997. Dcfcndants tilcd and scrvcd an Amcnded Countcrclaim in thc present action, Ilowcvcr. lhe Amcndcd Countcrclaim fhils to set ..,..Ii,rth thc amuunt of eaeh tax payment due for the time periud in which it is due. which amounts constitute the total arrearage alleged in paragraph 34 to equal or exceed $3.696,84.... as required in the Order of Octo her 2. 1997, The Amcndcd Counterclaim also purports to amend the praycr lilr judgment contained in lhe Counterclaim, contrnry to the Court Order of October 2. 1997. and Pa,R,C.I', 1033, Therefore. on December 8. 1997, Plaintiff filed Preliminary Objcctiuns to the Amcnded Counterclaim, Defendants have not filed an answer tu cither thc Motiun lilr Default Judgment or lhe Preliminary Objections. II. AR(;UMENT In response to thc Prcliminary Ohjeetions ufthc Plaintill: this Court directed Defendants to file a mure specific plcading, Defendants failed tu filc thc pleading within twenty days of notice of the Order. as required by Pa.R.C,P, ~1028(c), After Plaintilrfilcd a Motion for Default Judgment, Defendants then waited an additional 12 days tu tile an Amcnded Counterclaim. thus failing to comply with the tcn day standard contained inPlI,R,C.I', ~2J7,I, This blatant disregard of the rules ofproeedure has not occurred in isolation. but must bc viewcd in conjunction with Defendants' failure to comply with the provisions of thc Loan Interest and Protection Law. and 5 speci nc pleading selling forth Ihe amounl of eaeh lox paymenl due filr the lime period in which il is due, whieh wnounts conslilule Ihe 10101 arrearage alleged in purngmph 34 10 equal or exceed $3,696,84," Defendanls hove responded by nling on Amended COIuplainl whieh simply Iisls \0\01 dolll\r amounls, by calcmlur }"'ar, elainled 10 be owed for reul estate tuxes from 1979 Ihrough 1996, There is no indication of the Iypes ofluxes, when Ihey were paid, how Ihey were paid. Ihe time period for which Ihe laxes were due, or the nature of the paymenls (ie discounl, face or penally), The wnounl claimed now tolals $3.326,89. and no explanalion is provided for the discrepancy from the previous ngure, Clearly. the Defendants have lailed 10 sel forth "the wnount of W lux paymenl due for Ihe time period in which it is due," (emphasis added). In addilion. Ihe Amended Counlerelaim purports 10 amend Ihe claim for relief, including a number of claims nol conlained in the original Counterclaim. Clearly. Ihis was nol aulhorized by the Order of Court. and is a violalion oflhe requirements of 1'1l.R.CI', S1033. which provides thai a pleading may be umended only by n\ed consent of Ihe adverse parly or by leave of court, Neilher has oecurred in Ihis case, and Ihese provisions must also be stricken from thc Amended Counlerclaim, - III. CONCLUSION Dcfcndanls fuiled to comply with Ihe provisions of the Loan Inlercsl and Prolection Law before ming the Counlerclaim, failed to me a sufiicienlly specific Counterclaim, failed 10 produce documents or provide tcstimony 10 suppOrt the Counterclaim at a deposilion, failed to me an Amended Counterclaim wilhin the lime period pcnnilled by Ihe Rules, failed to comply 7 WILLIAM II, ANDRINO, PlaintifT : IN TilE COURT OF COMMON PLEAS : CUMBERLAND COUNTY.PENNSYL VANIA : CIVIL ACTION - EQUITY : No, 97 - 1081 EQU ITY TERM v, EARL (I, ARNOLD and JANICE M, ARNOLD, DefendwllS DEFENDANTS' BRu.:fo"F IN OI'I'OSITION TO I'LAINTIFF'S I'RELlMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM I. BACKGROUND Defendants' have filed a counlerelaim to plainlifT's aclion for specific perfonnance of a real eslale sales agreemenl claiming lhal plaintifT is in breach of said agreemenl for failure 10 payor reimburse defendants' for real estate laxes WId municipal charges which by lhe lenns oflhe sales agreemenl were lhe responsibilily of plain lifT, Defendanls' original counlerclaim lumped lhe lolal alleged defaults os 10 I) real eslale lax arrearage and lhen os 10 2) municipal charge arrearage, in lwo separale paragraphs of the counlerclaim, being respeclively paragraphs Nos, 34 and 36. On Oclober 2,1997, following oral argumenl on plainlifT's preliminary objeClions to defendants' counlerclaim. this Court ordered a more specific counlerclaim selling forth the amount of each lax payment due for the time pcriod in which it is due, and selling forth the amount of each municipal charge due for the time period in which il is due, os were claimed respectively in paragraphs 34 and 36 of defendanls' original counterclaim, Defendants' filed the required amended counterclaim on December 2, 1997, I; I'luintilT raises preliminury objections in the nuture of insunicient spccifieity und lur Fuilure to Confonn to Rule of Court bused on, the 20 duy filing deudline lur required umendments set forth in l'a.R.C.P.1028(c), and on l'a.R.C.I'. 1033, alleging the laller rule to proscribe WI amcndmcnt to thc praycr for rclicf under the present circumstances. II, ARGUMENT Taking the objcctions in order of case of disposal, l'a.R.C.I'. 1033 is inapposite or overridden by the specific rule governing actions in equity. l'a.R.C.I'. 1528, a single sentcnce rule states, 'The prayer for rclicf may be Wllended as of coursc at any time." Rcgarding the continued claim of lack of specificity the UIIlendcd counterclaim goes to great length to itemize the exact "amount of each tax payment due for the timc period in which it is duc". Allached herelo for the Court's convenience arc the Schedules incorporated into the counterclaim which show the ycar, the wnount of real estate tax, the amount contributed by plaintilT, the resulting shortfall per ycar and thc total of plaintilT's arrearage. Thc Schedulc regarding Municipal Charges is further purlicularizcd on a quarterly busis. Defendants' respectfully submit that plaintiffhus been more than adequately apprised oftheir claim and of thc grounds and material facts upon which it rests. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293,464 A2d. 1349 (1983), D'Antona v. Hamllton Grinding Wheel Company, 225 I'a. Super. 120,310 a2d. 307 (1973). 2 ! j j' I '. t SCHEDULE "A" REAL ESTATE TAXES Year Total Real Estate Total Contribution Amount Taxes paid by by Plaintiff owed by Plaintiff Defendant to Defendant 1979 $ 76,72 $ 75,00 -$ 1.72 1980 $ 294,41 $ 300,00 -$ 5,59 1981 $ 319,36 $ 300.00 $ 19,36 1982 $ 324,35 $ 300,00 $ 24.35 1983 $ 324,35 $ 300.00 $ 24.35 1984 $ 349.30 $ 300,00 $ 49.30 1985 $ 434.13 $ 300.00 $ 134.13 1986 $ 464.07 $ 300.00 $ 164.07 1987 $ 471.56 $ 300.00 $ 171.56 1988 $ 481.54 $ 300.00 $ 181. 54 1989 $ 506.49 $ 300.00 $ 206.49 1990 $ 546.41 $ 300.00 $ 246.41 1991 $ 603.80 $ 300.00 $ 303,80 1992 $ 666.17 $ 300,00 $ 366,17 1993 $ 678.65 $ 300.00 $ 378.65 1994 $ 698.61 $ 300.00 $ 398.61 1995 $ 711. 08 $ 300.00 $ 411. 08 1996 $ 736.03 $ 481. 70 $ 254.33 TOTALS $8,687.03 $5,356,70 $3,326.89 SCHEDULE "B" TRASH REMOVAL Year Quarter Amount paid Amount contributed Amount owed to by Defendants by Plaintiff Defendants by Plaintiff 1987 1 $ 26,64 $26.64 $ -0- 1988 1 $ 26.64 $ -0- $ 26,64 2 $ 26.64 $ -0- $ 26.64 3 $ 26,64 $ -0- $ 26.64 4 $ 26.64 $ -0- $ 26.64 1989 1 $ 26,64 $ -0- $ 26.64 2 $ 26.64 $ -0- $ 26.64 3 $ 26.64 $ -0- $ 26,64 4 $ 26.64 $ -0- $ 26.64 1990 1 $ 26.64 $ -0- $ 26.64 2 $ 26.64 $ -0- $ 26.64 3 $ 26.64 $ -0- $ 26.64 4 $ 44.01 $ -0- $ 44.01 1991 1 $ 44,01 $ -0- $ 44,01 2 $ 44.01 $ -0- $ 44.01 3 $ 44.01 $ -0- $ 44.01 4 $ 44.01 $ -0- $ 44.01 1992 1 $ 44.01 $ -0- $ 44.01 2 $ 44.01 $ -0- $ 44,01 CONTINUATION OF SCHEDULE "B" 3 $ 44.01 $ -0- $ 44.01 4 $ 44.01 $ -0- $ 44.01 1993 1 $ 44.01 $ -0- $ 44,01 2 $ 44.01 $ -0- $ 44.01 3 $ 44.01 $ -0- $ 44.01 4 $ 33,00 $ -0- $ 33.00 1994 1 $ 33.00 $ -0- $ 33,00 2 $ 33.00 $ -0- $ 33.00 3 $ 33.00 $ -0- $ 33.00 4 $ 33.00 $ -0- $ 33.00 1995 1 $ 33.00 $ -0- $ 33.00 2 $ 33.00 $ -0- $ 33.00 3 $ 33,00 $ -0- $ 33,00 4 $ 33.00 $ -0- $ 33.00 1996 1 $ 33.00 $ -0- $ 33.00 2 $ 33,00 $ -0- $ 33.00 TOTALS $1,210.80 $26.64 $1,184.16 PIlM:CII'E FOil l,r:i'I'INt; CAlm FOil 'J'IlJAI. --- --_.~" -.------ (N'IllL be lypewl'i It"'l '"1<1 B1,llllillUlJ ill ulJ[lli.cLlLe) '10 'llIE PIlC1J'1I0IDI'AIlY OF CUMUElllJlNlJ COUNI'Y Please lisl the [ollowillU CLlse. (Check aile) lor ,JUIlY lrial ill Lhe lIexl lellll o[ civil cour\. x) [or ldLll. withoul a jury. ----------------------------------------- Cl\P'l'lON OF CASE (enlire CilptiOIl nusl lle slilled ill [lJl.1) (check une) William H. Andring civil Action - Law ^ppeal fWIII Arbitration (x F.qlli~y (olher) ( Plaintiff) vs, Earl F. Arnold and Janice N. Arnold 'I'he lrial lisl will be called on and 'l'rials COfllllence on ( Dcfendanl ) Prelrials will be held on (Uriefs are due 5 days before prelrials,) vs, (The parly lislillU lhis case for lrial shall provide forlhwith a copy of lhe praecipe lo aU counsel, pursuanl to local Ilule 214.1.) No,97-10B1 Civil Equity 1997 lndicale the attorney who will lry case [or the party who files lhis praecipe. David J, Lenox, Esquire Jmlicille lrial. counsel fur other pw-Lies if Imuwn: William H. Andring, Esquire Pro Se 'rhis case is i-eady for triil1. (~n/7 /' "good, /1-;' l-n/. ~, .. Prinl Nalle: DaVId J. Lenox Dale. August 5, 1999 AL torney [or: Defendants WILLIAM H. ANDRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,I'ENNSYLV ANIA v. CIVIL ACTION - EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, No. 97.1081 EQUITY TERM , Defendants PLAINTIFF'S PRELIMINARY OB,IECTlONS 1l! DEFENDANTS' AMENDED COUNTERCLAIM AND NOW comes PlaintilT, William II. Andring, and files the within Preliminary Objections to Defendants' Amended Counterclaim: I. On August 21, 1997, Plaintifftilcd Preliminary Objections to the Counterclaim of Defendants in the present action. which Objections included an allcgation of insufficient specificity in the Counterclaim of Defendant. 2. On October 2. 1997, subsequent to oral argument on the Prcliminary Objections to the Counterclaim. this Court entered an Order directing that: (a) Dcfendants shall filc a marc spccific pleading selling forth the Wllount of each tax payment duc lor thc time period in which it is due, which amounts constitutc the total arrearage alleged in paragraph 34 to equal or cxcced $3,696,84. (b) Defendants shall file a more specific pleading sclling forth the UIIlount of each municipal charge due for the time period in which it is due, which amounts constitute the loIal arrearagc alleged in paragraph 36 to cqual or cxcced $1,184.16 3. Defendants failed to file a morc specific plcading. a~ dirccted by the Court in the Order rcferrcd to in the previous paf'dgmphs hcreol: within twenty days of notice of the Order. as rcquired by l'a.R.C.P. 1028(e). , , WILLIAM H. ANDRING, Plaintiff IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, No. 97 - 1081 EQUITY TERM Defendants CERTIFICATE OF SERVICE I, William H. Andring, hcreby certify that on this, the .s !5:. day of ~ e c ''''' bt: '"" ,1997, I served a copy of the attached document by causing it to be deposited in the United Stales Mail, first c1uss postage prepaid, addressed us follows: David J. Lenox, Esq. Jan M. Wiley & Associates One South Baltimore Street P.O. Box 288 Dillsburg,PA 17019 (Jd&-=iIt1 , WiIIiUlll H. Andring / , ,~ ! WILLIAM H. ANDRING, plaintiff I I IN THE COURT OF COMKON PLEAS CUMBERLAND COUNTY, PEN!fSYLVAlIIA CIVIL ACTION - EQUITY No. 97-1081 Equity . . v. I I EARL F. ARNOLD and JANICE H. ARNOLD, . . Defendants I I To William H. Andring: YOU ARE HEREBY notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from the date of service hereof or a Judgment may be entered against you, Jan M. Wiley & Associates ~~~# ~~Uir./ Attorney for Defendan s ID #29078 One South Baltimore Street Dillsburg, PA 17019 Phone: (717) 432-9666 Dated:December 2, 1997 SCHEDULE "A" REAL ESTATE TAXES Year Total Real Estate Total Contribution Amount Taxes paid by by Plaintiff owed by Plaintiff Defendant to Defendant 1979 $ 76.72 $ 75,00 -$ 1.72 1980 $ 294.41 $ 300,00 -$ 5.59 1981 $ 319.36 $ 300.00 $ 19.36 1982 $ 324.35 $ 300.00 $ 24.35 1983 $ 324.35 $ 300,00 $ 24.35 1984 $ 349,30 $ 300.00 $ 49,30 1985 $ 434.13 $ 300.00 $ 134.13 1986 $ 464. 07 $ 300.00 $ 164.07 1987 $ 471.56 $ 300,00 $ 171.56 1988 $ 481. 54 $ 300.00 $ 181. 54 1989 $ 506.49 $ 300,00 $ 206.49 1990 $ 546,41 $ 300.00 $ 246.41 1991 $ 603.80 $ 300,00 $ 303.80 1992 $ 666.17 $ 300.00 $ 366.17 1993 $ 678,65 $ 300,00 $ 378.65 1994 $ 698,61 $ 300.00 $ 398.61 1995 $ 711. 08 $ 300,00 $ 411. 08 1996 $ 736,03 $ 481. 70 $ 254.33 TOTALS $8,687.03 $5,356.70 $3,326.89 SCHEDULE "B" TRASH REMOVAL Year Quarter Amount paid Amount contributed Amount owed to by Defendants by Plaintiff Defendants by Plaintiff 1987 1 $ 26,64 $26.64 $ -0- 1988 1 $ 26,64 $ -0- $ 26,64 2 $ 26.64 $ -0- $ 26.64 3 $ 26,64 $ -0- $ 26.64 4 $ 26,64 $ -0- $ 26,64 1989 1 $ 26,64 $ -0- $ 26,64 2 $ 26,64 $ -0- $ 26.64 3 $ 26,64 $ -0- $ 26,64 4 $ 26.64 $ -0- $ 26.64 1990 1 $ 26,64 $ -0- $ 26,64 2 $ 26,64 $ -0- $ 26.64 3 $ 26.64 $ -0- $ 26.64 4 $ 44,01 $ -0- $ 44,01 1991 1 $ 44.01 $ -0- $ 44.01 2 $ 44.01 $ -0- $ 44,01 3 $ 44.01 $ -0- $ 44,01 4 $ 44.01 $ -0- $ 44.01 1992 1 $ 44.01 $ -0- $ 44.01 2 $ 44.01 $ -0- $ 44,01 CONTINUATION OF SCHEDULE "B" 3 $ 44.01 $ -0- $ 44,01 4 $ 44.01 $ -0- $ 44,01 1993 1 $ 44.01 $ -0- $ 44,01 2 $ 44.01 $ -0- $ 44,01 3 $ 44,01 $ -0- $ 44.01 4 $ 33.00 $ -0- $ 33,00 1994 1 $ 33,00 $ -0- $ 33.00 2 $ 33.00 $ -0- $ 33.00 3 $ 33.00 $ -0- $ 33.00 4 $ 33.00 $ -0- $ 33.00 1995 1 $ 33.00 $ -0- $ 33.00 2 $ 33,00 $ -0- $ 33.00 3 $ 33,00 $ -0- $ 33.00 4 $ 33.00 $ -0- $ 33.00 1996 1 $ 33,00 $ -0- $ 33.00 2 $ 33.00 $ -0- $ 33.00 TOTALS $1,210.80 $26.64 $1,184,16 .,.. ~.- to"; c: t.,: -. ,- It ~ ~. -' ( ,) ~ [.. ,. c... "- l...;: ~4. 1 C' I u:' , ( to. I' , ..... ". r" Li U' \_J ~ C'l (.; ..:l ~ (.~J , It) /;~ ~'. 1. j- , ("10- ... etc.,. 0.. ' - Il. _~ -:: 2;"- r::> , 1 u. "J --it - I ~, I u.: - i.. .-- c: r.- ;/; :..- l:; r- ~_i oJ' 0 WILLIAM II. ANDRING, I'luintilT IN TIlE COURT OF COMMON I'LEAS CUMBERLAND COllNTY,l'ENNSYLVANIA Dcfcndunts CIVIL ACTION - EQIIITY Q Jl () -, ." - ,'J .'- ."1",1 -=! ' .." No. 97 - IOH I EQUITY TERM r ,. 'i-- ,..., :') ';CJ Cj j6 . . ~ , -" '. . "'.l.1 -' I, !() .-' l:-? "iI\ :;\ .' ',. :.1 r.- ~ (..) ....; -. v. EARL F. ARNOLD and JANICE M. ARNOLD, PLAINTIFF'S MOTION I:OR I)EFAIJLT ,JUIJGMENT IWli.nst I)EFENI)ANTS' COlJNTEI{CLAIM ANI) NOW comes I'laintilT, Willium II. Andring, and IiIcs thc within Motion for Default Judgment against the Defendunts' Countcrcluim: I. On August 21, 1997, i':..intilT IiIcd I'rcliminury Objcctions to the Counterclaim of Dcfendants in the present action, which Objections ineludcd an allegation of insufficient specificity in the Countcrclaim of Defcndant. 2. On October 2, 1997, subsequent to oral argument on the Preliminary Objections to the Counterclaim, this Court entcred un Ordcr directing that: (a) Defcndants shulllilc a more spcciflc plcading selling forth the amount of each tax paymcnt due for the time pcriod in which it is due, which amounts constitute the totlll arrearagc Illlcgcd in paragraph 34 to equal or exceed $3,6%,H4. (b) Defendants shalllilc a more specific pleading selling forth the Wllount of each municipal charge due for the timc period in which it is due, which amounts constitute the total arrearage alleged in paragraph 36 to equul or exceed $1,184.16 I !I~ i~, ~. t r \ ~ clJ = '2 ~ """"- e os <( <(op,. .'" ::t:.:.o:"": ~~:t ._ u c. ::oo~ ~;:!ju w a: S o f3 'C :: Ii! ci 1l~ gZlX- ~ ii: "'~ o Q ll..: J z",:: ~.c()X :c~Q, :I"'~ .c 0 :i -l i 1:'3... ~ tJjNOV 24 1997 WILLIAM H. ANDRING, Plaintiff IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Y. CIVIL ACTION - EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, No. 97 - 1081 EQUITY TERM . Defendants RULE TO SHOW CAUSE AND NOW, this day of ,1997, in consideration of the Motion for Default Judgment which has been filed by PlaintilT, a rule is hereby entered upon the Defendants. Earl Arnold and Janice Arnold, to show cause as to why the relief requested in the Motion should not be granted. Rule returnable the day of 199_, at o'clock . M.. in Court Room No. Cumberland County Courthouse. Carlisle. PA. By the Court, , j' J. NOV 2 t~ 1991 WILLIAM II. ANDRINn, Plaintiff IN TIlE COURT OF COMMON PLEAS CUMUERI.AND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, No. 97 - 1081 EQUITY TERM Defcndants n ~-, " ," _. -11 - :J T: ." , -rJ ~.I If_. . -111 ,,) '.o? l:,) - ~ r"'" ,....\ -"., -;D ..- 1c) r:~ ')In -:i " -" ,:~ ',.;~ .-; (,) -:. .. PLAINTIFF'S MOTION FOI{ J)I':FAULT JUJ)(;MENT lIl:lIin~t HEFF.NIMNTS' COlJNTEI{CLAI M AND NOW comes PlaintilT. William II. Andring, and IiIcs the within Motion for Dcfault Judgment against the Defendanls' Counterclaim: I. On August 21,1997, Plaintiff filed Preliminary Objcclions to the Counterclaim of Defendants in the present action, which Objcctions included an allegation of insunicicnt specificity in the Counterclaim of Dcfcndant. 2. On October 2, 1997, subsequent to oral argument on the Preliminary Objections to the Counterclaim, this Court entered an Order directing that: (a) Defcndants shall file a more speci lie pleading selling forth the amount of each tax payrncnt duc for thc timc period in which it is due, which amounts constitute the totalllrrearage allcgcd in paragraph 34 to cqual or excecd $3,696.84. (b) Defcndants shall file a more specific pleading selling forth the amount of each municipal charge due for the time period in which it is due, which amounts constitute the total arrearage alleged in paragraph 36 to equal or exceed $1,184.16 . WILLIAM II. AND RING, I'lninlill" IN TIlE COURT OF COMMON PLEAS CUMBERLAN () COUNTY. PENNSYLVANIA v. CIVIL ACTION. EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, No. 97.1081 EQIJlTY TERM Dcfendunts CERTIFICA n: OF SF-RVleE I, Willium II. Andring, hcreby certify that on this, the --.J(} t5::- day of No t/ e ~ {; e r' , 1997, I servcd a copy of the allached document by causing it to be depositcd in the Unitcd Stalcs Muil, first c1nss postuge prepaid. addressed as follows: David J. Lenox, Esq. Jan M. Wiley & Associutes Onc South Bultimore Slrect P.O. Box 288 Dillsburg,I'A 17019 ikL~/Y Willium H. Andring WILLIAM II. ANDRING, I'luintiff IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV ANIA v. CIVIL ACTION - EQUITY EARL F. ARNOLD und JANICE M. ARNOLD, No. 97 - 1081 EQUITY TERM Defendunts PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANTS JUlll PLAINTIFF'S NEW MATTER AND NOW comes Pluintiff. William II. And ring. and Iiles the within Answer to the New Malter of Defendunts and Plaintiff's New Multer: 22. No Answer Required. 23. Denied. It is specificully denicd thatPlaintiffhus fuiled to comply with the contract in any manner what-sa-ever. hus fuiled to provide proof of insurance coverage to Defendants, or that Defendants have made duc demund for proof of insurance covcragc, and spccific proof thercof is hereby demanded. 24. Denied. It is specificully denied that Plaintiffhus failed to comply with the contract in any manncr what-so-ever, hus fuiled to pay any reul estute taxes us required by the contract, or that Defendants havc made due dcmund for puyment ofreul estate taxes, and specific proof thereof is hereby demanded. 25. Denied. It is specifically denied thutl'luintiff has failed to comply with the contract in any manner whut-so-ever, thut any real estate taxes have been in urrears since July, 1980, or that uny such arrearage is in un amount of $3.696.84. and specific proof thereof is hereby demanded. 26. Denied. It is specifically denicd that Plainlin' has failcd to comply with the contract in any manner what-so-ever, has failed to pay for any municipal charges and ussessments, or that Defendants have made demand for such chargcs and assessmcnts, and specific proof thereof is hereby demanded. 27. Denied. It is specifically denied that PlaintilThus failed to comply with the contract in any manner what-so-eyer, that municipal charges have been in arrears since April, 1987, or that the arrearage is in an amount of$I.1 84.16. and specific proofthercof is hereby demanded. 28. Denied. It is specifically denied that PlaintilThas failed to comply with the contract in any manner what-so-ever, that PlaintilThas failed to seek any required mortgage financing, or that Defendants have made demand for such financing. and specific proofthereof is hereby demanded. 29. Denied. It is specifically denied that PlaintilThas failed to comply with the contract in any manner what-so-ever, that Defcndants provided any wriuen notice of any breach of contract, or that defendants demanded possession of the rcal property at issue, and specific proof thereof is hereby demanded. 30. Denied. It is specifically denied that Plaintiff has failed to comply with the contract in any manner what-so-ever, that Defcndants are entitled to possession of the real property at issue, or that Plaintiff has unjustifiably refuscd to give Defendants possession of the rcal property at issue, and specific proof thereof is hcreby demanded. PLAINTIFF'S NEW MATTER 40. Thc allegations contained in the previous paragraphs hereof arc incorporated as though fully set forth herein. 41. The Contract is, by its tenns. subject to the provisions of the Loan Interest and Protection Law, Act of 1974. No.6 (hercinatler the "Act"). 42. Pursuant to the provisions of Section 403 of the Act, the Defendants are required to provide certain wrillen notices to Plaintiff by certilied or registered mail, containing certain specificd infonnation, prior to commencing any action for rccovery under the Contract for failure of Plaintiff to make required payments. 43. The New Maller of Defendants in the !lresent action contains no allegation that the notices required by Section 403 of the Act were provided to PlaintilT. 44. Defendants have failed to provide the notices required by Section 403 of the Act to Plaintiff. 45. The defenses and claims raised by Defendants in Paragraphs 22 through 30 of their New Maller are barred for failure to provide the noticcs required by Section 403 of the Act to Plaintiff. 46. Thc defenses and claims raised by Defendants in Paragraphs 22 through 30 of their New Maller arc barred us a maller of accord and satisfaction. in that Defendants have accepted all payments made by PlaintilT on the Contract and have never notified Plaintiff of any deficiencies in payments as required by the act or in any other manner. 47. The defenses and claims raised by Defendants in Paragraphs 22 through 30 of their New Maller are barred and Defendants are estopped from asserting such claims. in that Defendants have accepted all paymcnts made by PlaintiO' on the Contract and haye never notified Plaintiff of any defieiencies in payments as rcquircd by thc act or in any other manner. 48. The defenses and claims raised by Defendants in Paragraphs 22 through 30 of their New Maller are barred a~ a mailer of laches. in that Delcndants havc accepted all payments made by Plaintiff on the Contract and have ncver notificd I'laintilT of any deficiencies in payments us required by the aet or in any other manncr. 49. The defenses and claims raiscd by Defcndants in Paragraphs 22 through 30 of their New Maller are barred by the statute of limitations. 50. The defenses and claims raised by Defendants in Paragraphs 22 through 30 of their New Maller are barred by thc statute of frauds. WHEREFORE, PlaintilT rcquests that this Court enter an Order directing that Dcfendants specifically perform thcir obligations under the Contract by acccpting thc tendcr of performance by Plaintiff and conveying to PlaintilT the premiscs known as 924 Mill Road in fee simple by general warranty deed, free and clear of all liens and encumbrances, and that Defendants pay to Plaintiff all damages. costs and allomey's fees incurred by Plaintiff us a result of the breach of contract by Defendants. Respectfully submilled, - WILLIAM H. ANDRING, PlaintilT IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLV ANIA Y. CIVIL ACTION - EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, No. 97 - IOSI EQUITY TERM Defendants VERIFICATION I, Willium H. Andring, hereby verify thutthe statements mude in the attached document arc true and correct, to the best of my knowledge, or inlimnution and belief. I understand thut false statements hercin urc made subject to the penulties of IS l'a.C.S. Section 4904, relating to unsworn falsification to authorities. t I. r I I 1 I 5. Beginning in Oetobcrof 1979 und continuing through July, 1996, PlaintilThus mude monthly payments to the Sellcrs pursuuntto the provisions of the Contraet in un amount of $308.81 in principal and interest and $25.00 in taxes. 6. In July of 1997, Sellers notificd PluintilTthatthe annual real estate taxes on the Property had increused. and that a corrcsponding increasc in PlaintilT's monthly tax payment would be required. 7. From August of 1997 to the present, PlaintifThas made monthly payments to the Sellers pursuant to the Contract in the amount of$308.81 in principal and interest and $61.34 in taxes. 8. Sellers have accepted every payment madc by PlaintilT. us referred to in the previous paragraphs hereof. have nevcr notified I'laintilT of any deficiency in any monthly payment other than as referred to in Paragraph 6 hereof. und have never provided an accounting of any kind us to the disposition of the paymcnts rcceived from PlaintilT. 9. All taxes and municipal charges or assessments on the Property are current and paid to date. 10. PlaintilThus paid every bill fur every municipal charge or assessment which he hus ever received, or of which he was cver made aware. 11. By leller dated December 14. 1996. Plaintiff olTered to discharge his obligations under the Contract by paying in fullthc unpaid principal balance due undcr the Contract. 12. By leller dated Deccmbcr 27, 1996. Counsel lor Scllcrs rcjcctcd the tender of performance referred to in thc prcvious pamgmph hcrcof. 13. By telcphonc convcrsation on January 8. 1997.l'laintin'spccitically requested of Attorney David J. Lennox, counsel for Sellers, that PlaintilTbe provided with copies of all bills, reeeipts, canceled checks, and similar documentation for all amounts which Sellers claimed were due and owing to Sellers from I'laintilTpursuantto the Contract. Allorney Lennox responded that he did not possess sueh documentation, and that it would only bc provided to PlaintilT at "another time." I. DEMURRER 14. Thc allegations contained in thc previous paragraphs hereof are incorporated us though fully set forth herein. IS. The Contract is, by its tenns. subject to the provisions of the Loan Interest and Protection Law, Act of 1974. No.6 (hercinaner the "Act"). 16. Pursuant to the provisions of Section 403 of thc Act. the Sellers were required to provide certain wrillen notices to Plaintiff by certified or registered mail, containing certain specified infonnation, prior to commencing the present action. 17. The Counterclaim in the present action contains no allegation that the notices required by Section 403 of the Act were provided to I'laintilT. 18. Sellers have failed to providc the notices requircd by Section 403 of the Act to the Plaintiff. II, INSUFFICIENT SPECIFICITY 19. The allegations contained in the previous pamgraphs hereof are incorporated as though fully set forth herein. 20. Paragraphs 33 and 34 ofthc Countcrclaim allege that the payment ofrcal estate taxes by Defendant Andring has .....been in arrears since on or about July, 1980, and the total arrcarage now equals or exceeds $3.696.84." 21. The Countcrclaim docs not spccify any paymcnt which has not been made in accordance with the provisions ofthc Contract, docs not indicate the period or periods for which taxes arc allcged to be due, does not indicatc thc amounl oftaxcs usscssed, docs not indicatc the amount of taxes paid. and docs not contain any olhcr information of sufficient specificity which would enable PlaintilTto respond to the allcgation that taxes havc not bcen paid in accordance with the provisions of the Contmct. 22. Paragraph 35 of the Counterclaim alleges thatl'laintilT..... hus failed to pay for municipal charges and assessments... ". but contains no infonnation as to the nature or amounts of municipal charges or assessments allegedly at issue. 23. Paragraph 36 of the Complaint allegcs that Plaintiff has failed to pay municipal charges for refuse removal.....sincc on or about April. 1987. and the total arrearagc now equals or exceeds $1.184.16." 24. The Counterclaim docs not specify any payment for refuse rcmoval which has not been made in accordance with thc provisions of the Contract, does not indicate the period or pcriods for which payments for refusal removal are allegcd to be due, does not indicate the amount of refuse removal chargcs, docs not indicatc thc amount of rcfuse removal charges paid. and does not contain any other infonnation of sufficient specificity which would enable defendants to respond to the allegation that refuse rcmoval chargcs have not becn paid in accordance with the provisions of thc Contract. 25. Paragraphs 32. 33. 35, 37. 38 and 39 of the Countcrclaim make reference to alleged WILLIAM H. ANDRING, PluintilT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY , PENNSYLVANIA Y. CIVIL ACTION. EQUITY EARL F. ARNOLD und JANICE M. ARNOLD, No. 97 - 1081 EQUITY TERM Defendants VERIFICATION I, Williwn H. Andring, hereby verify that the stutements made in the attached document are true and correct, to the best of my knowledge, or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904. relating (0 unsworn falsification to authorities. . ' . . WILLIAM H. AHDRING, . IN THE COURT OF COMHON PLEAS . Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA . . v. . CIVIL ACTION - EQUITY . : EARL F' ARNOLD and JANICE M. : No. 97-1081 Equity ARNOLD . . Defendants . . ANSWER WITH NEW MATTER AHD COUNTERCLAIM OF DEFENDANTS EARL F. ARNOLD AHD JANICE M, ARNOLD 1, - 3. Admitted. 4. Admitted in part and denied in part, Admitted that the contract was entered into as averred. Denied that Janice M. Arnold is a Plaintiff herein. Rather she is Plaintiff in a civil Action No: 1997-00164 P currently pending before this same court, and based on the same Sales Agreement sued upon herein, and filed against William H. Andring, the Plaintiff herein, prior to the institution of the present civil Action, By way of further Answer, Plaintiff incorporates herein by reference their New Matter and Counterclaim. 5, Admitted. 6. Admitted. 7, Admitted. 8. Admitted in part and denied in part, Denied that Plaintiff made payments pursuant to the provisions of the contract in that the payments that Plaintiff did make were habitually late and in that the real estate taxes have progressively risen during the term of this Sales Agreement and municipal charges have also . progressively risen and new municipal charges have been initiated and Plaintiff did not increase his payments correspondingly, By way of further Answer, Defendant incorporates herein by reference their New Hatter and Counterclaim. 9. Denied. It is impossible to have notified Defendant Andring of any matter in July of 1997. Defendant is obviously referring to a notice of July 1996, wherein Plaintiff notified Defendant of not only the current deficiency of montly payments but also of the arrearage due from Defendant to Plaintiff for both taxes and municipal assessment. 10, Admitted. with the exception that the date intended is in 1996, 11. Admitted in part and denied in part. Denied that Paragraph 6 of Plaintiff's complaint contains any reference to a deficiency in monthly payments, It is denied that Plaintiff has never been notified of deficiency in his monthly payments. Plaintiff was specifically notified of said deficiencies and has continued to refuse to pay the same, By way of further Answer, Defendants incorporate herein by reference their New Hatter and Counterclaim. 12. Denied. Plaintiff has been notified of municipal charges and assessments which Plaintiff did not pay and continues to refuse to pay, By way of further Answer, Defendants incorporate herein by reference their New Hatter and Counterclaim. 13. Admitted, 14. Denied. Plaintiff has not offered to discharge his obligations under the contract in his letter of December 14, 1996. The letter disclaims the existence of Plaintiff's obligation to reimburse Defendants for payments of taxes and municipal fees and therefore disclaims his willingness to discharge those obligations thereby continuing to place himself in breach of said Contract, By way of further Answer, Defendants incorporate herein by reference their New Matter and Counterclaim. 15. Denied, Defendants, through the referenced letter of December 27, 1996, conditionally accepted the tender of performance, subject to Plaintiff's reimbursing Defendant, Janice M. Arnold, for real estate taxes and municipal charges, as were Plaintiff's obligation under the subject Sales Agreement, 16. Denied. Denied that Attorney Lenox withheld knowledge of, or production of, documentation. 17. Admitted in part and denied in part. It is denied that Plaintiff has continued to make payments pursuant to the Contract in that Plaintiff's continued payments are habitually late, and do not include reimbursement for duly demanded real estate taxes and municipal charges. 18. Denied. It is denied that Plaintiff has complied fully with all the terms and conditions of the Contract in that Plaintiff is in breach of the Contract for failure to pay when duly demanded, real estate taxes and municipal assessments for which the Contract obligates Plaintiff, By way of further Answer, Defendants incorporate by reference their New Matter and Counterclaim herein. 19, Denied, Paragraph 19 of Plaintiff's Complaint avers a conclusion of law to which no Answer is required, It is denied that Defendants have breached their responsibilities under the Contract by rejecting the tender performance from Plaintiff, instead, it is specifically averred that Defendant Janice M. Arnold currently sole title owner of the property in question has communicated through counsel that she stands ready to accept the unpaid principal balance due under the Contract and to deliver the deed to Plaintiff at such time as Plaintiff cures his default status under the Sales Agreement by reimbursing her for back real estate taxes and municipal charges. By way of further Answer the Defendants incorporate herein by reference their New Matter and Counterclaim, 20. Denied. Paragraph 20 of Plaintiff's Complaint avers a conclusion of law to which no Answer is required. Furthermore, Defendants deny Plaintiff's entitlement to specific performance based on Plaintiff's default status under the Sales Agreement being sued upon. 21. Denied. Any interest and other payments required of Plaintiff subsequent to the tender of performance by Plaintiff is caused solely by Plaintiff's failure to cure his default status under the Agreement, and by way of further Answer, Defendants incorporate herein by reference their New Matter and Counterclaim, WHERErORE, Defendants Earl F. Arnold and Janice M. Ar.nold, respectfully requests that this honorable court dismiss Plaintiff's Complaint with prejudice, and award it costs of suit. NEW MATTER 22. Defendants incorporate herein by reference Paragraph 1 through 21 of their Answer to Plaintiff's Complaint, and allege as New Matter the following: 23, That Plaintiff, William H. Andring, has failed, refused, and still fails and refuses, to comply with the contract sued upon, in that the Plaintiff, William H. Andring, has failed to provide proof of insurance coverage endorsed to Defendants, although Defendants have made due demand therefore, 24. That Plaintiff, william H, Andring, has failed, refused and still fails and refuses, to comply with the contract, in that the Plaintiff, William H, Andring, has failed to pay real estate taxes, assessed against the subject property although Defendants have made due demand therefore. 25. That said payment of assessed real estate taxes has been in arrears since on or about July , 1980, and the total arrearage now equals or exceeds $3,696.84, 26. That Plaintiff, William H. Andring, has failed, refused, and still fails and refuses to comply with the contract, in that the Plaintiff, William H, Andring, failed to pay for municipal charges and assessments, although Defendants have made due demand therefore, . 27. That said payment of assessed municipal charges for refuse removal has been in arrears since on or about April, 1987, and the total arrearage now equals or exceeds $1,184,16, 28. That Plaintiff, William H. Andring, has failed and refused, and still fails and refuses, to comply with the contract, in that Plaintiff, William H. Andring, failed to seek mortgage financing for the unpaid balance of the principal purchase price owing under such Sales Agreement, although Defendants have made due demand therefore. 29. That on the 17th day of July, 1996 and on the 6th day of November, 1996 Defendants gave Plaintiff William H. Andring, written notice that because of Plaintiff's Breech of contract, Defendants demanded immediate possession of the above described real property, 30. That the Plaintiff, William H, Andring, has failed and refused, and still fails and refuses, to give Defendants possession of the above described real property. WHEREFORE, Defendants respectfully request this court find that Plaintiff is in default of his obligations under the subject Sales Agreement and dismiss Plaintiff's Complaint with prejudice, and award it cost of suit. COUNTERCLAIM 31. Defendants incorporate herein by reference Paragraphs 1 through 30 of the foregoing Answer and New Matter to Plaintiff's Complaint, and asset as a Counterclaim the following: 32, That Plaintiff, William H, Andring, has failed, refused, and still fails and refuses, to comply with the contract, in that the Plaintiff, William H. Andring, has failed to provide proof of insurance coverage endorsed to Defendants, although Defendants have made due demand therefore. 33, That Plaintiff, William H, Andring, has failed, refused and still fails and refuses, to comply with the contract, in that the Plaintiff, William H, Andring, has failed to pay real estate taxes, assessed against the subject property although Defendants have made due demand therefore. 34. That said payment of assessed real estate taxes has been in arrears since on or about July , 1980, and the total arrearage now equals or exceeds $3,696.84. 35, That Plaintiff, William H. Andring, has failed, refused, and still fails and refuses to comply with the contract, in that the Plaintiff, william H, Andring, failed to pay for municipal charges and assessments, although Defendants have made due demand therefore. 36. That said payment of assessed municipal charges for refuse removal has been in arrears since on or about April, 1987, and the total arrearage now equals or exceeds $1,184.16. 37, That Plaintiff, William H. Andring, has failed and refused, and still fails and refuses, to comply with the contract, in that Plaintiff, William H, Andring, failed to seek mortgage financing for the unpaid balance of the principal purchase price owing under such Sales Agreement, although Defendants have made due demand therefore. 38, That on the 17th day of July, 1996 and on the 6th day of November, 1996 Defendants gave Plaintiff William H, Andring, written notice that because of Plaintiff's Breech of Contract, nefendants demanded immediate possession of the above described real property. 39, That the Plaintiff, William H, Andring, has failed and refused, and still fails and refuses, to give Defendants possession of the above described real property. WHEREFORE, Defendants pray for Judgment against the Plaintiff as follows: 1. Restoring Defendants to possession of the above described real property, 2. Declaring Plaintiff's interest and right in said contract null and void. 3. Declaring all monies paid under said contract forfeited to Defendant as liquidated damages. 4, For cost of the action; and 5, For such other and further relief as the court may deem just and proper, Jan One South Baltimore Street Dillsburg, PA 17019 Phone: (717) 432-9666 JANICE M. ARNOLD . IN THE COURT OF COMMON PLEAS OF , : COHBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. , CIVIL ACTION - LAW . WILLIAM H. ANDRING and JOSEPH PAVLAKOVICH . NO. , Defendants . . ~ 1. That Plaintiff's complaint of Defendants above named, claiming a right to any interest or possession in the real property described in the Complaint, and for cause of action alleges both Plaintiff and Defendants, are residents of Cumberland County, Commonwealth of Pennsylvania. 2. That Plaintiff is now the owner in fee simple and entitled to the possession of certain real property located at Hampden Township, Cumberland County, Pennsylvania, more fully bounded and described as follows: Beginning at a point marked by a railroad spike in the bed of Mill Road, a 16 feet wide private road, said point being six hundred fifty (650) feet West of the center line of Good Hope Mill Road: thence extending in and along Mill Road, North sixty-three (63) degrees twenty-eight (28) minutes West forty-two feet to a point; marked by a railroad spike, at a corner of land now or late of Harry Aunst: thence along said land, North thirty-seven (37) degrees forty-seven (47) minutes East one hundred thirty-nine and twenty-five hundredths (139,25) feet to a point in line of land now or late of Lloyd Eby; thence along said land, South thirty-eight (38) degrees thirty-five (35) minutes East, forty (40) feet to a corner; thence continuing along said land now or formerly of Eby South thirty-six (36) degrees thirty-nine (39) minutes West one hundred twenty-one and sixty-four hundredths (121,64) feet to a point and place of BEGINNING. 3. That the above described property was deeded to Plaintiff, Janice M, Arnold, individually, by Grantors, Earl F. Arnold and Janice M, Arnold, formerly husband and wife, by deed dated April 30, 1996 and recorded in the Cumberland County Office of the Recorder of Deeds in Deed Book 138 beginning at Page 1183, 4. By reason of the above conveyance and also through a separately executed Assignment Earl F, Arnold has transferred to Plaintiff, Janice M, Arnold, all of his rights and interest in the above described property including his rights and interests in the below referenced Sales Agreement. 5. That on September 5, 1979 Plaintiff and Defendant, William H. Andring, entered into a written contract for the sale of Plaintiff's land a copy of which is attached her.eto and marked "Exhibit A" hereof, and in accordance with the provisions of the contract Defendant, William H. Andring, entered into possession on or about September 5, 1979, 6, That Defendant, William H, Andring, has failed, refused, and still fails and refuses, to comply with the contract, in that the Defendant, William H. Andring, has failed to provide proof of insurance coverage endorsed to Plaintiff, although Plaintiff has made due demand therefore. 7, That Defendant, William H, Andring, has failed, refused, and still fails and refuses, to comply with the contract, in that the Defendant, William H. Andring has failed to pay real estate taxes, assessed against the subject property although Plaintiff has made due demand therefore, 8. That said payment of assessed real estate taxes has been in arrears since on or about July, 1980, and the total arrearage now equals or exceeds $3,696.84. 9. That Defendant, William H. Andring, has failed, refused, and still fails and refuses, to comply with the contract, in that the Defendant, William H, Andring, failed to pay for municipal charges and assessments, although Plaintiff has made due demand therefore. 10. That said payment of assessed municipal charges for refuse removal has been in arrears since on or about April, 1987, and the total arrearage now equals or exceeds $1,184.16. 11. That Defendant, William H. Andring, has failed and refused, and still fails and refuses, to comply with the contract, in that Defendant, William H. Andring, failed to seek mortgage financing for the unpaid balance of the purchase price owing under such Sales Agreement, although Plaintiff has made due demand therefore. 12, That on the 17th day of July, 1996 and on the 6th day of November, 1996 Plaintiff gave Defendant, William H, Andring, written notice that because of Defendants Breech of Contract, Plaintiff demanded immediate possession of the above described real property. 13, That the Defendant, William H. Andring, has failed and refused, and still fails and refuses, to give Plaintiff possession of the above described real property, 14, That Defendant, Joseph Pavlakovich, is currently residing at the premises at the above described real property, with and pursuant to the permission of Defendant, William H. Andring, and as a party in possession is named as an additional Defendant of this Complaint, WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 1, Restoring Plaintiff to possession of the above described real property. 2, Declaring Defendant's interest and right in said contract null and void. 3, Declaring all monies paid under said contract forfeited to Plaintiff as liquidated damages. 4. For cost of this action; and 5. For such other and further relief as the court may deem just and proper, By: /~ One South Baltimore Street Dillsburg, PA 17019 Phone: (717) 432-9666 JANICE H. ARNOLD . IN THE COURT OF COMMON PLEAS OF . . COHlIERLAND COUNTY, PENNSYLVANIA . Plaintiff . , vs. : CIVIL ACTION - LAW WILLIAM H. ANDRING anc! . , JOSEPH PAVLAKOVICH . NO. . Defendants . . ~ I, Janice M. Arnold, Plaintiff in the foregoing action, verify that I am authorized to :nake this verification and that the stateMents made in the forecoina Motion are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A, Section 4904 relating to Uns~orn falsification to authorities. CL~~~ ~ ~ /anice M. Arnold, Plaintl f DATED: January~, 1997 i, .. 7. Th. r.ll .Itlt. trlnsf.r tIX.S paysble upon d.liv.ry of tho d..d for the pr.mi..s, if .ny, shall be paid one.hslf by the Sellers , .:' Ind one.half by tho Purcha..r. 8. In tho .v.nt that tho Purchas.r shall flil or r.fus. to p.y sny monthly installm.nt wh.n tho sam. b.com. duo Ind shall flil to pay tho sam. for a period of thirty (30) days th.reafte~, he shall be in deflult under this Agreement, or if tho Purchs..r fail or r.fuse to pay any taxes or insurance premiums when the same become due, the Sellers shall have the option of paying the same Ind sdding the amount th.r.or to the unpaid balanc. of the purchss. price due ~d.r thi. Agr..ment or declaring the Purchaser to be in del.ult ur.d.r this ~greement, provided, howe~erl :~at ~eal estate taxes sha!l be con- side red due !nd ~a:able i~ mont~ly i~s:al~ment5 as ~rov~!ed in ?3ra- i~aph a. ~ereinabove. and the i~5ur3nce ?remi~~s shall :e considered payable on :~e date of expiration or the then existing ;l'olicy; or if the P:.::-c:-'.aser shall fail or refuse :0 pay :or any :nunic:';l'al asseSS::'le~t or cha:'1es when the same are due and payable. ~e shall :e in default under :~is ~greement; or if the Purchaser should fail or :efuse to perfo~ any of the covena~tSI :e~. promises or condit:.ons herein- above set forth. h. shall be in default under this Agr.em.nt. 9. In the event the Purchaser is in default unde~ :~is rigreement for any of the reasons set forth in Para~raph 8 he:oeoi 1 :;,e Sellers shell have the option of either: (A) to declare the unpaid balanc. of the purcha.. pric. imm.diat.ly due and payable and proc.ed by an appro- priat. Iction to coll.ct th~ same, in which .v.nt the Purchas.r h.r.by authorizes any attorney of any Court of Record 1n Pennsylvania Dr else- 1ooIl",0,""_ SNIL."lCD. "'C~LI. . I1.ll:lCl" wh.r. to app.ar for him and in his name to conf.ss a judgm.nt against him for the unpaid balanc. of the purchase pric. without .ny stay of .x.cution and with t.n p.r c.ntum (l~ add.d for coll.ct!on f.... and also waiv.s the right of inquisition on said r.al .s:.t. and vol- untarily condemns the same and hereby authorizes the Prot~onotary to -5- the execution of the Contract, and to pay the remainder of the purchase price to the Sellers in monthly installments of$308.81 in principal and interest. 7. Thc Contract provided that the real estate taxes on the Property were to be paid by Plaintiff Andring to the Sellers in monthly installments equal to 1/12th of the annual real estate \aXes, suid wnounts to be held by the Sellers and paid to the proper laxing authorities upon issuance of the annual tax notices. 8. Beginning in October of 1979 and continuing through July, 1996, Plaintiff Andring has made monthly payments to the Sellers pursuant to the provisions of the Contract in an amount of$308.81 in principal and interest and $25.00 in taxes. 9. In July of 1997, Sellers notified PlaintilT Andring that the annuul real estate taxes on thc Property had increused, and that a corresponding increuse in PlaintilT Andring's monthly tax payment would be required. 10. From August of 1997 to the prcscnt, PlaintilT Andring hus made monthly payments to the Sellers pursuant to the Contract in the umount of$308.81 in principal and interest and $61.34 in taxes. II. Sellers have accepted every payment made by PlaintilT Andring, as referred to in thc previous paragraphs hereof, have never notified PlaintilT Andring of any deficiency in any monthly payment other than us refcrred to in Paragraph 6 hercof, and have never provided an accounting of any kind us to the disposition of the payments received from Plaintiff Andring. 12. PlaintifT Andring hus paid every bill for every municipal charge or assessment which he hus ever received, or of which he wa~ ever made aware. 13. All taxes and municipal charges or ussessments on the Property arc current and paid to date. 14. By leller dated December 14, 1996, Plaintiff Andring offered to discharge his obligations under the Contract by paying in full the unpaid principal balance due under the Contmc\. A copy of this letter is attached. IS. By leller dated Deccmber 27, 1996, Counsel for Defendants rejected thc tender of performance referred to in the previous paragmph hereof. A copy of this leller is allached. 16. By telephone convcrsation on January 8.1997, PlaintilT Andring specifically rcquested of Attorney David J. Lennox, counsel for Defendants, that PlaintilT Andring be provided with copics of all bills, rcceipts, canccled checks, and similar documentation for all umounts which Defendants claimed were due and owing to them from I'laintilT Andring pursuant to the Contmc\. Attorney Lennox responded that he did not possess such documentation, and that it would only be provided to Plaintiff Andril)g at "another time." 17. PlaintilThus continued to thc prcsentto makc monthly payments to Defendants pursuant to thc contmct. 18. Plaintiffhus complied fully with all of the terms and conditions of the Contrac\. 19. Defendants have breached thc contract by rejecting the tcnder of performance from PlaintilT. 20. PlaintilT is entitled to specific pcrlonnance of the contract by Defendants. 21. PlaintilT hus sulTered damagcs caused by the brcach of contract by Defendants, in that Plaintiffhus been requircd to make interest and other payments subscquentto the tender of perfonnance by Plaintiff. WHEREFORE, Plaintitl. rcquests that this Court entcr an Order directing that Defendants specifically perform their obligations undcr thc Contract by accepting the tender of WILLIAM H. ANDRING, Plaintiff IN TIlE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY EARL F. ARNOLD and JANICE M. ARNOLD, No. Defendants VERIFICATION I, William H. Andring, hereby verify that the statements made in the attached Complaint are true and correct, to the best of my knowledge, or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. William H. Andring r.. --: ','ll.rj'. '.: ,t :.l..1 :" , " AGREEMENT OF SALE OF RrAL ESTATE TillS AGREEMENT I made Ind entered into this oS lit day of ~4'f'II.. en !:"'" 1979, by Ind between: 1"""'1.. "f~lr'''.!! ,,'''!w.. ," t"".t ".' ~ ~ . 'L"'......U. ~...-. . . ....~ ..~f'.,~/EARL FIIARNOLD'lnd \JANICE H. ARNOLD, .,' . "1\," '.~ I hi. ftUti"of "~mpden Townahip, ,. " . ,.." , Cumberland County, Pennoylvnnia, p"rtieo of the nrat' part, hereinafter called the "Sellerl". ; .. e:'4t: ~m~~ ~:I.I ~~:;; ;til~::; ~""~tn ........c ,.,11:'".'6 hue,,",,", U"'1 ~~~... r.~il l;! :s: ,~ C> .., AND WILLIAH II. ANDRING, of the n.me place, party of the aecond part, hereinafter called the "Purchaser", . '. . IT IS AGREED BY AND BETWEEN TilE PARTIES IIERETO AS FOLLOWS: '" l ~.... t I,' ,. ;'. 1. The SeUerl "IIree t!' lell to the Purcha.er, and the Purchaser I . ,..., . "IIreel to purchale Ind Iccept the convey,nc~ of: ., "," '. " 1', ' . ALL TIlAT CERTAIN LOT or piece of IIround nHuate in IInmpden Township. Cumberland County. Pennsylvnnin t bounded and described in accordance with 8 survey Bnd plan th(!r.eof made by Ernelt J. WIlker, Profe..ional Enllineer, dated July lq, 1972, II followl: If , . BEGINNING at I point marked by a raUroad apike in the bed nf Hill ROld, a 16 feet wide private rond, .Iid point beinll 6Su foet Welt of the center line of Good lIope Mill Road; thence extendinll in Ind Ilonll Mill Road, North 63 dellreel 28 minuteo Welt q2 feet to a point, marked by a rlil- road spike. at . comer of land now or late of IIBrry Aunst; thence along Slid land, North 37 drgrces 117 minutcs [aRt 139.2S feet to I point in Une of land now or In te of l.loyd Eby; thence along !laid lund, South 38 degrees 3S minutes EBBt, llO feet to a comer; thence continuing Blong 90id land of Eby South 36 dellree. 39 minute. We.t 121.611 feet to a point and pllce of BEGINNING. '. ... TOGETHER with the rillht to u.e the .aid private road at all times hereafter for purpoRes of ingress, egress Rnd re- gress to the above premises, which exhmds across other lands now Dr formerly of Arthur I. Shoffer and J. Joyce Shaffer hi. ., ....'....."lfe. -In conmon 'with all other persons now entitled to the . Ukl liberty Ind to III other per.on. whom the .aid Arthur I. . Ind J. Joyce Shaffer may hereafter convey a like liberty; it beinll underatood Ind allreed that the Purcha.er, hie heirl Ind 1.1111nl, Ihlll pay hil pro rlta shIre Iccordinll to I foot frontalle with other perlonl using the said road for the relson- ~. . able'malntlnlnce of'the Ilid road until such time Sl it Ihlll U"."tcll l"IlI"'I(IJIII. Md!.u'1 . IUccIlt , ' " ,:':>., ~";"'/" 1lXIt.24G rAt( ~73 ~"'l~',"'_""~"'~"!"~ ":1 r... l.~",,~ .. , . I' . 1..' ,'"...;'1.' .. . ~ . ~'lt. .t, ,.~ ,. .,' ,\ .4' 'W ': \1.,. .,.... " beaome maintdned by I m~nicipal luthority. ALSO tOllether with In eaoement for aU time, 10 feet in width throllllhout, Icr011 the p.emioea hetween the ahove . described premioel Ind the Conodoguinet Creek, cOMectinll the above described premiaea with the Conodoll\linet Creek . , Ind In e......nt, 15 feet in width throughnut, acrOBn the edd adjoining premiael and olonll the hIgh wate. mark of the Ilid Creek for beach purposes with the 10r.ation of ths 10 feet e..ement for Iccesl to the Creek to he designated from time to time by thl Idd Arthur I. and J. Joyce Shaffer, thllr hei.. Ind Illiana. Tha Ilid ealementl to be u.ed by IiIIrf!ltthe .PurchaIBr" hil hairl Ind I.aignl, in COlMlOn with the uid Arthur I. Ind J. Joyce Shaffer, their heir. Ind "sianl, Ind III personl who now haVI I like right. '.' IIAVING thareon erected lone Itory frsme dwelUnll hOllle. BEING the lime premises which Stlte Cnpital Slvings and Loan ASlociltion, by itl deed dated Septemher 19, 1977, Ind recorded in the' Office of the Recorder of Oeeda in Ind for Cumberland CDunty, Pennaylvllnia, in n(led Book "H" Volume 27, Paae 7QS, IIrlnted and conveyed unto Earl F. Arnold Ind Jlnice H,.Arnold, hie wifa, the Sellerl herein. . . I" '" ~.. 'i .. ;" ~\ . . 2. The Purohaler.lareel to pay to the Sellerl I. the full con- ,.,.., ~ '" .a" ,"""''!" ".' '") dderstion and pricI for Idd premisel the lum of Thirty-Six Tholllsnd ; .. I '..1 '(t'.;\.'"..; '1l,. 1- Ind NallOO ($36.DOO.OD) Dolllra, plyable 10 follows: Fbur Thousand Ind . I' t"I"", . NollOO ($q,OOO.OO) Dolllra upon the execution Ind deUvery of thio AI1~dement.-th.-rl!C!.ipt whereof ia hereby acknow1edge.1 by the Sellers, I. "'I t ,""'. .,.."'......\,.. rI.... ..' Ind the ballnce of Idd purchaoe price, to wit: Thirty-Two Thollnlnd .' I I.,.. .r I I Ind No/100 ($32,000.00) Dolllrs to be plid in five (S) years f.om the II .... I;. I," 'U!. ,..'. dlte hereof tOllethlr.with interest thereon (nnd on the unpaid hllonce t ,". ". ,,1'1.1' ..' . thlreof) from the date hereof It the .ate of ten per centum (1())!} per . . ._ "'f I.,.' . annum, which sdd purchaee price and interest nhnll he paid in regulor ',..' . .:' "II consecutive monthly payments of Three Hundred Eight nnd Sl1100 ($30S.S1) Dolla.. per month, eech eaid monthly peyment to he npplJed first on account of interelt Ind th~ balence of each said payment to be IppUed on account of the purcheae price, Baid montluy payments to commence one I . ,'. . (1). month.rl;"..th~dlte hdreof Ind Idd payments shall be paid on the -. ..... '"-. alma dlY of each Ind every month thereafter for I total of fifty-nine . , (59) luch plymenta, and the full remaininll unpaid balance of purchue price and interelt' shill be plid to the Sellers on the ~ dlY of , ,I ..-.. .~.. ,'/.,... &00lC -2- 246 PACE int .,';' /' . , " It: ., . '. ~ "j" II ....,il'""""l'o""~ ~~~: :I:~~'"-il'.r" !. Thl Purahlur lhall be entitled to possession of the premiae. U_O'M.. .Mlll.....IOt. MCCAL.. . I\.ICtllll , . .,~;.,.~,.... upon ths execution Ind d~livery of this Allreen~nt. ., , . Ij, . Real; ,!"t.ta, taxel for the year 1979 ah.ll be pror.ted between thl p.rtiol .o,of thl dltl of thil Asreemont, Ind .11 t.xel .ccruinll .ftlr the d.te of thi. Allreemont shill be paid by the Purchaser snd shall be p.ysbla to Seller. in monthly instoUments concurrently wHh ~!:'r~~:~,~~~~~~~y,P.~~.~. .It 'forth in P.rallrlph 2, hlreinlbov.;A..Qhj'uQh~tnlt.1Lmant\to be in In .mount equIl to one- , . 'f,l. I ..~. "~. ..', - .. . tv.lfth (LI12)IOf,thl,.n~u.l rell estate t.xes, Ilid omounts to be hold by Selle...,.w~thou.t"oblia.tion.of interest Ind to be p.id by Seller to the proper,j;.dna .uthority upon iOluance of .nnual real elt.te tax nottcel... Thl ,PurahaOlr.lhall ply II charged or u..ssed III ...,nicipal '. . I ',' charae. or...I..I'~ent~~f~~ .~~Vi~~~to Dr improvements on Dr incident. 1 , ~o laid pl'tlll118I", 1"!"ll11".I',ll}lll..provide Seller., upon demand, with .. . ~ rec.ipt. .howingp.ymtnt;~f!.ll it.ma,required by thie plrlllreph. .... 5. The Purah..er; .lIr.el th.t he will et hia own coat inaure the premieee egdnst fire by policy Dr policies of insnrance with extended coverelll.in,',.n .moun~.I'~,.~t d,~.t..Th1rty-Two Thousand end No/100 ($!2,DOO,OO) Dollars snd that sold policy Dr policies ehall be properly endorsed to Iho~ the inte....t of the SeUerl end the Purchaeer, and the Sell.... ahsll' be 'entitled to the proceeda of aaid inaurance in the even of .ny 1011I to the extent of their interest. Purchaser shall supply Sellere,. upon demand, with certificates of insurance for the coverallea required by tH. plrlllraph. 6. The Purch.eer ollrelll to keep the premiaes in u lIood condition I. at prelent and C'ormdt no ",..te: thereon. The PurchBSel" .gre~. not to mIIke .ny atroctural alteration of sdd premia.s without the prior Ipprovol,of.,tho,Slllera. The Seller. shall have the risht to inapect said premieea periodicelly which add inspection shall be upon reaaon- Ible prior notice to the Purchaler and ehall be conducted .t relaonable time.. -lI- .". ,;: I ,:. .;\ ""_., BOOlI.,246 rAG(, 276 'O' 4",.tt'll~;J'~."~i~:""it .}.'t,f,(t~'.~4~~''': ," ..... , ",'t 1"1'.1 ,',t,'/ !,. t~, '~~a~lIIlfM\~r,,~'tlj\""..1"f::;I!:;J~",' ",. ,,"','3")\.~ ' 1 7. The real estate tranlfer taxea payable upon deUvory of the daad for lhe r>remiaoa, if any. Ihall be paid one-hllf by the Sollera and one-half by the Purchuer. 8. In the event that thl Purchaaer shill fan Dr refuoe to PlY Iny monthly inltallment when thl lime becomo duo and Ihlll fan to PlY the aame for a period of thirty (30) days thereaftor, he shall be '.,.iIIodafault.under thia Allreement, Dr if the Purchaaer fail Dr refule to .. , "',101 "",. , . " pay any taXII, Dr, inaurallc,e premiwna when the lime become dUI, the Selle... Ihall have the option of paying the lime Ind addinll the emount thlreof to the unpaid balance of the purchue price due under thia Agreement Dr declaring the Purchleer to be in defsult under thia Allreement. provided, howevIl', that real eltate taxes ahall be con- lidered,~uI and payable in,monthly inatallmento al provided in Para- llraph.,!\. ,hlreina~ove,and. thl in.~ranca premiwna ohall be conaidered plYlble on the date of ,"xpiration of, ,the th~n exiatinll policy; or if th~Purahaael"~ll fli~o~ refuae to pay for any municipIl laaealment Dr charge. when the lime are due and payable, he shall be in default unde(,~~!a:,~gl'!'~!I~lr..'!.r I1FJ~hl .P.urahuer should fail Dr refuae to perf'~nn,.ny,of. the covenanta, tenns. promises or conditions herein.. above .et, forth". ,he ahal~ I~e ,in ,~efault under this Allreement. '. 9.. In tha.,~I',ent .~ha,1"".rchaaer i. in deflult under this Agreement for a,ny" of,.th~,,!,,!!\'p,n"I~~t.~!,rth in Parallrlph 8 hereof, the Sellera ahall ,have",~~ert!'p.At.io'1.,~f e1thar, (A) to declare the unpaid balance of tho' pU;.(,hia,~phc,e"iln114idiltelY due Ind plyable snd proceed by sn appro- .- '" ,',' " priate Icti~n~d!ool1ect th, slme, in which event the Purchaser hereby authorizeo any attorney of Iny Court of Record in Pennsylvania or else- , wher. to Ippear for him and in hi. name to confess a judllment sllsinat · hilll'fol'.tha.unpdd.ballncl of the purchase price without any Itay of --"--' execution and with ten per centum (l~ Idded for collection feel, and 1110 wlive. the rillht of inquilition on Ilid real estate Ind vol- untarily condemna the lime Ind hereby authoriEel ths Prothonotary to ....; . ...1' I .' , ',r,' '.. 1.',....5. . ' . '" '..', ~\ ,-';~;,'~ e- 2AG "...' 27'7 I: . .:".t :,"':,..... ',Il ':-,' '-li:',II'J~'_'"""'i.;r '^'" .. ~ ,.J:J;;~,,...~.~. ~'l'JII\.~......-- ).......~.~:~..,,;-,..., 1 --- ~~.'\i~I.bt.' . 7, ....'. ..~... ...."~r..-. .'f,~ ,-' 'rl . ~ ': I.:';".' r,~'\: . >; ,..., l"L. h'". /1""'1.'.' . ,.", ,"'.' rt: ,'"1,.1 I""" .f. \ -Lt."r Or'J"rr;', 11""1". I . ,. ...'h.1.~!.,. .. ,', I , intar' upon. writ 'ofaxeoution hil laid voluntlry condcllUlltion; Dr 'j 'r ,P'", ' , , (B)'to declare thl Purahallr'a ~illht and interelt in and to thil Allree~ntn~ and void and proceed to retake po.se.oion of the <.prem1UI, in tfhich event the Purchlaer IlIrees that all moniel paid under thb Allreement Ihal1 be forfeited to the Sellerl al liquidated danellol, Ind the Purchller hereby authorbes Iny Ittorney of any Court i ~fl!~"f(f~I!"t"~~~~~~I~!!~.~~~~~~..fO~ him Ind in hil' n.me' to confen \ rJ~dament. 1n.~1l. ~~~b~~~.~t~~,,1 of; Ijectment and authorbel the I . . inmedilte. ialulnce,:of, a tfrit of poaleaaion with writ of execution for ," ..,. '. , ) I I I coati without any atlY of execution and waivel the rillht of appeal Ind rllea.. all errorll and in either event the rillhto of the Purchaler hereunder lhall bo at In end. 10. Thb Allreement of Sale ohall not be Iso1l1ned by the Purch..or without the prior written approval of ,the Sellerl. Should the Pur- cr.ner nailln Dr attempt to uailln Ida inte.rest in Ind under thb Allreement of Sale, t/1e Sellerl ohall hove the right to declare the Purchuer to be in deflult under thio Agreement and the Sellers ohlll be entitled immediately to pursue the remedieo more fully oet forth in Plragraph 9.'.bove. IN WITNESS WIIEREOF the portiea intendinll to lell"lly bind them- ..lvee, their hel~. Idmlniatratora, executor. and Issigne, have Bet their hando' ond oealo hereto the day Ind year firot obove written. .,--' -. -.. . of: ~ :t0u~ (SEAL Eorl F. Arnold Q~;u 771. ~~ (SEAL ~an~1?;ld ~"" ~rAL i 1 1m II. Andrinll /' "'"'' ;.. 'ihl'" .., r.,'ll"-".~ '-' t .., I nt.'~"....' t:. f~ ". I f'h....t11Jfl "'t\~ (' '."".~ -6- (4.... If; ...,.. \'f ~ '." . . .' ~;V.,;;.".~-.:.. I', , ,. '..;." ,.it~".,... ",~:",'d ~I'')~' 1,1 ' ,,:~. .~". .,', ','. ; II:'.' '." ...t~:y.:j,~'t;,~' 240.... 278 "",..~ .. '. U\IUn 'MlII. >'(:~. " ~ '~..A_.,.._.. . . . .0;"" ' w'" . ,I' ,..'. 1p' . ' .,~:/.:. " ..' . ~~.Jll,;.,,\ i'~(l.~/4" ?, ,\,.. J . ..1'\1\ I ~Il ",1": .' ....~ ':.,' . '':-. ,;.: I.. ,. ... , , , , .;. :. .' I.... UWOf'ICII 'HIL.Aa.., "cCAl.la . IUClCU , ~" .' I',,' ,"- .' ," ,'" , I' ~" .. " ~ ~C~EALTH or'. PENNSYLVANIA) .f). ",'" '" . ~~. .OOHTY.~ 'i" or . CUtIIERLANO) ",' \h'" , ~,' . ~'" I;: '. ~ .::':\: ',On thia, the ~ day , 1979, beCor .;' , ss. . ; ~';' II" . of SJAnvt~ ma a Notary Public in Ind far the county Ind otate aforeslid, perlonlll appelred rARL F. ARNOLD and JANICE H. ARNOLD, his wife, known to ma "'j. (aI', aaUaflctorlly pl'oven) to, bl the perlona whOle nlmes are lublcribed 'OW' ~~A~~e~nt ~~ ..~~i~':.~~;~:~:/that-t-h-;t;~~:':;:d"';'" Uth~";."'io t~urpol.."thll'ein aontainad. . ~~ '~If .. .h:~~ ", 5;'~!":,,~ !t,I.T~~"l'HEREl>>', I hereunto lit hand Official....al.!,.".. 'f' .,.4~. 7.... .',' . i 'f"""O.I(J '(',:&. . ...'. . I"': ' . ~:,t'),""\:,i.i~ :'~/' :.\ ',,' ,1~' ....1';.. I . . ..",,\. ~~" t1> "I' ", i:I....', ,'. . .ry c. 'to .'. : J:~ . :~::e.l DOIIAlO l!M1c' NOIlIY ~.:l:~:'Oi'I'\~')''''''''' . , ...-,.... ,..... ....... I :.2:!i,:,.:,:, . ;:"'/ . CloJ"" -~ .'HIIO,.... . r ""'~ .' ~(' ~~. ,....:); ;.;!~~, .,'1::. ,..".. ,..... "i .t. '. ,~ ",'. II" ,f , ,.,.,III'.~i~ ,~t{~':!1,,~: . '~;:'.r~'~',:,~:}~t~t'.~~/ll. .'14 ,,' :7~N~~""h...., '. . ;t.' ,.I\I,~..,.'I'\...,.f.ol' ," . ""'~'\"l' '.. . "~''''''.") '. . . '-~I., , . ' V,COIHlNllEALTIt'OFfrPEIINSYLVANIA);('" ,i' '; " 'c~~i)i;:,:.A;':',JCUtIIERLAN~' '.as., ; /_' t~". ..~..~ 'f~\,. " ~o'11: day of ..J'e.M!"Je,<., , 1979,' before me _ ttll?,~~~~;;'d f:r'l;:~;~~tY~~d"at~t~ aforeoaid, peroonally eppiared WILLIAM H.'ANDRING,'known to me (01' latiafoctorily proven) to .' ....,~: .f.\ , . '. ." .t. t' . ".. . ~., , be the pereon whOee nama 10 ~ubacribed to the within Agreement DC Sale, . ::. '1 .. ....:.. :.~. ~," , .... and acknow1aclaed l:hlt he executed the same for the purpooel therein '" t;.';".~(o.,'~ ."-."' . .', l. . oontained. l/t;.b~,',' . t'. ., t~.. . .~ . IN WITNESS WHEREOF, I horeunto ',1" .,.1 official leal,. ;c,'t:~:'I,:"-t"""..I~..I~_. .... - -.,-.. _4.. r . "tJ . . otary Publ~"~Lf,1.I. ,!-1'''",',. : ~t.'~..' .:.;.'0:1 \ DOHAIO l!MIC NOI'IY.' "e .. .. ~ ~1 .. '-"riM .. .. " .... -'11I ~....."" ',ti" ,> ',.. . ~.\ \;-.~.:t"O'I\'."""'::''' '," ..., ..' ,"+' ....... "'I.'.....\; .' ....~..,.:...';~).,., . ~~~_.. . ,'. j, : ,.... 01 .....II)1Wn.. 1.1 ".:" .' Clll/lllr 01 Cvm!!ootlolld . '. "~In lIta oIfid far lIta _C... olllMdl ,r ~~~:: Cumberland c:ount), ~ . .:. . :.....:>.VOl~ Po..- ;J.7J ;vi '\, wttnaae "" ha~ ~~,~ '.':(.~,;~~:,,~ ~ ~Z(~:';' ,eoox 246 rAcE 279 ;~t~~':t1'v..~~.~t~~".,\ "