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ATTORNeY. AT I-AW
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Plaintiffs also requested that Defendant perform additional work on Plaintiffs'
home which did not include the bid work to Old Guard Mutual Insurance
Company. See Exhibit "F" of Plaintitl's Amended Complaint.
6. Admitted in part and denied in part. It is admitted that the parties
orally agreed that Defendant would provide certain materials and services to
Plaintiff as outlined in Exhibit A of Plaintiffs' Amended Complaint. However, it is
specifically denied that any terms were agreed upon as to completion
requirements or material specifications as alleged by Plaintiffs. To the contrary,
the parties at no time discussed specifications or completion requirements and the
bid sheets were designed simply to provide Plaintiffs' insurance company with an
outline of the materials, labor, and other costs associated with performing the
necessary repairs.
7. Denied. It is specifically denied that Gregory L. Snyder agreed to
authorize payments to the Plaintiffs based upon the oral agreement between
Plaintiffs and Defendant. To the contrary, Gregory L. Snyder, agent for Old
Guard Insurance Company, agreed to authorize payments based solely upon the
materials, labor and costs outlined by the bid sheets presented to him.
8. Admitted.
9. Denied. Paragraph 9 is a conclusion of law to which no responsive
pleading is required. To the extent a response is deemed required by this Court,
2
Defendant specifically denies that Plaintiffs are third party beneficiaries to any
contract existing between Defendant and Old Guard Insurance Company.
10. Denied. Paragraph 10 is a conclusion of law to which no responsive
pleading is required. To the extent a response is deemed required by this court,
Defendant specifically denies that the bid sheets list any beneficiary.
11. Admitted.
12. Denied. Paragraph 12 is a conclusion of law to which no responsive
pleading is required.
13. Denied. Paragraph 13 is a conclusion of law to which no responsive
pleading is required.
14. Admitted in part and denied in part. It is admitted that certain
checks were issued to Mr. Nelson and Farmer's Trust as alleged by Plaintiffs.
However, it is specifically denied that all checks were so issued. To the contrary,
at least one check was issued to Mr. Nelson, Farmer's Trust and R.B.'s
Construction.
15. Denied. Paragraph 15 is a conclusion of law to which no responsive
pleading is required.
16. Denied. Paragraph 16 is a conclusion of law to which no responsive
pleading is required.
17. Denied. Defendant specifically denies that the parties came to
agreement on terms and conditions of the contract based upon the bid sheet. To
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the contrary, the bid sheet served only as an outline of materials and labor to be
performed. No additional terms and/or conditions were agreed upon or even
discussed, other than Plaintiffs' agreement to move out of the residence during the
reconstruction project performed by Defendant and necessary modifications to the
project during the course of reconstruction.
18. Admitted in part and denied in part. It is admitted that Defendant
departed the job site on December 6, 1996. However, it is specifically denied that
any agreement was reached between the parties as to completion of the work
outlined in the bid sheets. By way of further response, Plaintiffs' interference and
threatening conduct toward Defendant caused Defendant to leave the job site on
December 6, 1996.
19. Denied. Defendant specifically denies that he provided no
explanation for departing the job site. To the contrary, Defendant, on numerous
occasions, notified Plaintiffs of their continued interference with the work and that
Defendant would not be able to complete the work as outlined, unless Plaintiffs'
interference at the job site ceased.
20. Denied. Defendant specifically denies Plaintiffs' allegation that they
did not interfere with Defendant in the performance of the outlined work. To the
contrary, Defendant had arranged with the insurance company to be out of the
house during the reconstruction period. However, Plaintiffs did not leave the
home, did not move the required furniture, attempted to interfere with the project
4
on numerous occasions, and generally were a nuisance and obstacle to Defendant
throughout the project.
21. Denied. Defendant specifically denies that Plaintiffs were not a
contributory factor to the Defendant leaving the job site. To the contrary,
Defendant had arranged with the insurance company to be out of the house during
the reconstruction period. However, Plaintiffs did not leave the home, did not
move the required furniture, attempted to interfere with the project on numerous
occasions, and generally were a nuisance and obstacle to Defendant throughout
the project.
22. Denied. Paragraph 22 is a conclusion of law to which no responsive
pleading is required. To the extent a response is deemed required by this court,
Defendant specifically denies that his failure to complete the project was in any
way a breach of contract. To the contrary, there were no completion terms, nor
were there additional terms and conditions agreed upon by the parties, other than
Plaintiffs' agreement to move out of the home while the work was to be performed
by Defendant and certain modifications to the project during the course of
reconstruction. By way of further response, Plaintiffs' conduct was the sole and
proximate cause for Defendant leaving the job site prematurely.
23. Denied. After reasonable investigation, Defendant is without
knowledge as to the truth of the matter averred; therefore, strict proof of same is
demanded at the time of trial.
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24. Denied. The bid sheets attached to Plaintiffs Complaint at Exhibit
"An are a writing and speak for themselves, and any allegation to the contrary is
specifically denied. By way of further response, many of the items listed by
Plaintiffs were, in fact, completed by Defendant. Other items such as construction
methods or materials were amended to better suit the home with the express
agreement of Plaintiffs. Still other items remain uncompleted due directly to
Plaintiffs' interference with Defendant's work progress and eventual threatening
conduct toward Defendant. At all times relevant hereto Defendant performed in a
professional and workmanlike manner and performed pursuant to the oral
agreement.
25. Admitted.
WHEREFORE, Defendant respectfully requests this Court to deny the relief
requested by Plaintiffs and issue judgment against Plaintiffs for amounts
presently due and owing, plus costs, interest, and attorney's fees, along with any
other relief this Court may deem just and appropriate.
COUNT II. BREACH OF IMPLIED WARRANTY
26. Defendant's answers to paragraphs 1 through 25 are incorporated
herein by reference.
27. Denied. Paragraph 27 is a conclusion of law to which no responsive
pleading is required. To the extent a response is deemed necessary, Defendant
specifically denies breaching any implied warranty of fitness. To the contrary,
6
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Defendant performed all work in a professional and workmanlike manner, and
while the work is fit for the particular use, Defendant in no way warranted the
work completed to Plaintiffs, particularly in light of Plaintiffs' interference with
the project and threatening conduct, which forced Defendant to stop work prior to
completion.
28. Denied. After reasonable investigation, Defendant is without
knowledge as to the truth of the matter averred, therefore strict proof of same is
demanded at the time of trial.
29. Denied. It is specifically denied that Defendant breached the
agreement by failing to complete the job in a workmanlike manner. To the
contrary, all work completed at the job site was performed in a professional and
workmanlike manner and was performed as agreed to by the parties. Certain
items, however, were not finished due directly to the interference and threatening
conduct of Plaintiffs forcing Defendant to prematurely leave the job site.
30. Denied. Defendant specifically denies damaging any vanity. By way
of further response, Defendant after reasonable investigation has no knowledge as
to the value of the allegedly damaged vanity; therefore, strict proof of same is
demanded at the time of trial.
31. Admitted in part and denied in part. It is admitted that Defendant
did accidentally break etched glass in the front door of Plaintifl's' residence. The
value of such glass is specifically denied as Defendant after reasonable
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investigation has no knowledge as to the truth of the matter alleged; therefore,
strict proof of same is demanded at the time of trial.
32. Denied. Defendant specifically denies damaging the legs of Plaintiffs'
chess set. By way of further response, Defendant after reasonable investigation
has no knowledge as to the value of the allegedly damaged property; therefore,
strict proof of same is demanded at the time of trial.
33. Admitted in part and denied in part. It is admitted that Defendant
did not replace the gutters. It is specifically denied that Defendant was required
to replace the gutters and rainspuuts. To the contrary, Plaintiffs specifically
requested that Defendant rpmove the gutters and ruins pouts from the home and
due directly to Plaintiffs' interference and threatening conduct Defendant was
required to leave the job site before replacing the gutters and rainspouts.
Moreover, the gutters and rainspouts were in such poor condition that they were
no longer usable for the intended purpose.
WHEREFORE, Defendant respectfully requests this Court to deny the relief
requested by Plaintiffs and issue judgment against Plaintiffs for amounts
presently due and owing, plus costs, interest, and attorney's fees, along with allY
other relief this Court may deem just and appropriate.
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COUNT III . UNJUST ENRICHMENT
34. Defendant's Answers to paragraphs 1 through 33 are incorporated
herein by reference.
35. Denied. After reasonable investigatioll, Defendant is without
knowledge as to the truth of the matter asserted, therefore, strict proof of same is
demanded at time of trial.
36. Denied. After reasonable investigation, Defendant is without
knowledge as to the truth of the matter asserted, therefore, strict proof of same is
demanded at time of trial.
37. Admitted in part and denied in part. It is admitted that Old Guard
Mutual Insurance Company paid Defendant $30,000 for materials and services
rendered. However, it is specifically denied that Plaintiff performed all their
obligations by paying such amount. To the contrary, amounts due and owing
remain outstanding and remain unpaid despite demand by Defendant to Plaintiffs.
38. Denied. Paragraph 38 is a conclusion of law to which no responsive
pleading is required. To the extent a response is deemed required by this Court, it
is specifically denied that Defendant has been unjustly enriched. To the contrary,
Plaintiffs received more from Defendant in labor and materials than the amount
paid by Plaintiffs through their insurance company, Old Guard Mutual Insurance.
By way of further response, Plaintiffs owe Defendant additional amounts for
services and materials rendered and have not paid such amounts despite demand.
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39. Denied. Paragraph 39 is a conclusion of law to which no responsive
pleading is required. To the extent a response is deemed required by this Court, it
is specifically denied that Defendant refused to perform the agreed upon work. By
way of further response, Defendant was forced to leave the job site prior to
completion directly due to the conduct of Plaintiffs.
WHEREFORE, Defendant respectfully requests this Court to deny the relief
requested by Plaintiffs and issue judgment against Plaintiffs for amounts
presently due and owing, plus costs, interest, and attorney's fees, along with any
other relief this Court may deem just and appropriate.
COUNT IV . BREACH OF ORAL CONTRACT
40. Defendant's answers to paragraphs 1 through 39 are incorporated
herein by reference.
41. Admitted.
42. Denied. It is specifically denied that Defendant agreed to pay
Plaintiff Eugene Nelson for his labor. To the contrary, the parties agreed to
exchange the labor of Plaintiff Eugene Nelson for the cost of certain materials on
the project. By way of further response, when Defendant requested Plaintiff
Eugene Nelson to fill out time sheets to record the amount of time spent on the
project by Plaintiff, Plaintiff refused and never provided Defendant with reliable
records of actual time spent on the project.
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43. Denied. It is specifically denied that Plaintiff Eugene Nelson
performed 625 hours oflabor as alleged by Plaintiff. To the contrary, Plaintiff
Eugene Nelson performed very few actual hours of work for Defendant.
44. Denied. It is specifically denied that Defendant failed to compensate
Eugene Nelson. To the contrary, Plaintiff was compensated by Defendant in the
provision of materials to the Plaintiffs for the project.
WHEREFORE, Defendant respectfully requests this Court to deny the relief
requested by Plaintiffs and issue judgment against Plaintiffs for amounts
presently due and owing, plus costs, interest, and attorney's fees, along with any
other relief this Court may deem just and appropriate.
NEW MATTER
45. Plaintiffs' Complaint fails to state a cause of action insofar as their
claims concern uncompleted work. Completion was never a term discussed by the
parties in their oral agreement and Plaintiffs' interference and threatening
conduct was the direct and proximate cause of Defendant leaving the job site
prematurely. Defendant performed all work at the job site in a workmanlike and
professional manner.
46. Plaintiffs have waived and/or are estopped from claiming the amounts
set forth in their Complaint due to their conduct which was the direct proximate
result of Defendant leaving the job site prematurely.
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47. Plaintiffs have failed to plead adequate facts to support their claimed
damages.
48. Plaintiffs' claims are barred by the doctrine of impossibility of
performance in that Plaintiffs denied Defendants access to the job site by their
interference and threatening conduct.
49. Plaintiffs claims are barred by lack of and/or failure of consideration
by Plaintiffs failure to make payment to Defendants.
50. Plaintiffs presently owe Defendant Seventeen Thousand Eight
Hundred Ninety-Six Dollars Sixty-Four ($17,896.64) Cents in labor and materials
provided by Defendant to Plaintiffs, all of which has not been paid by Plaintiffs
despite demand.
WHEREFORE, Defendant respectfully requests this Court to dismiss
Plaintiffs' Complaint and enter judgment in favor of Defendants.
COUNTERCLAIM
51. The averments contained in paragraphs 45 through 50 of Defendant's
New Matter are incorporated herein by reference as if fully set forth herein.
52. Defendant provided services and materials valued at Seventeen
Thousand Eight Hundred Ninety-Six Dollars Sixty-Four ($17,896.64) Cents to
Plaintiffs, which amounts have not been paid despite demand. The allegations
and exhibits of Defendant's Mechanic's Lien Claim filed March 21, 1997 are
incorporated by reference herein and attached collectively as Exhibit "A" hereto.
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exhibit A
ROBERT E. BROUGH, JR. tJdlbla
R. B.'S CONSTRUCTION,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
NO. 91~/1f?9 /?1/....0
EUGENE NELSON and DAWN
NELSON, husband and wife,
Defendants
CML ACTION. LAW
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The Claimant, Robert E. Brough, Jr., tJdlbla R.B.'s ConstructiOD, is an
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ltIECHANIC'S LIEN CL4lM.
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adult individual with an address at 1104 A Pine Road, Carlisle, Pennsylvania,
17013.
2. Defendants, Eugene Nelson and Dawn Nelson, his wife, reside at 63
Red Tank Road, Boiling Springs, Pennsylvania, 17007.
3. Defendants, Eugene Nelson and Dawn Nelson, contracted with
Claimant rill an oral agreement to perform, as a contractor, certain repairs,
renovations, and additions to Defendants' home, such repairs being necessitated
by a fire.
4. Claimant's work began, per Defendants' instructions, on July 22,
1996.
demolition and reconstruction:
$7.640.00
(b). Materials for work required by insurer as
listed above:
$ 18.36
(c). Four Hundred Twenty and one-half (420.50)
hours of extra labor requested by owners for
re-wiring of home, construction of downstairs
bathroom and laundry room, installation of rear
roof, and improvement of attic:
$ 8.405.00
(d). Materials for work required by insurer for
above listed extras requested by owners:
$ 1.933.28
The invoices due and owing delineating the labor and materials provided by
Claimant pursuant to the work required by Defendants and their insurance
company are attached hereto as Exhibit "B". The invoices delineating the
additional labor and materials requested by Defendants over and beyond that
required by Defendants' insurance company, are attached hereto as Exhibit "C".
~... B. 's CONSTRue. ..ON
All Twes oj Q:u."enter Work
1104 A PIne Road
CmIIsle,PA 17013
(717) 486-7576
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DESCRIPTION
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R. 8.'s CONSTRUcn\JN
All Types of Carpenter Work
1104 A PIne Road
CarUs1e, PA 17013
(717) 486-7576
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DESCRIPTION
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EUGENE NELSON and DAWN NELSON, : IN THE COURT OF COMMON PLEAS
husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs .
.
. 97- 1310
. Cu.u..Q Te((ll
v. . NO.
.
ROBERT E. BROUGH, JR. t/d/b/a CIVIL ACTION AT LAW
R.B. 's CONSTRUCTION, .
.
Defendant . JURY TRIAL DEMANDED
.
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
'II money claimed in the complaint or for any other claim or relief
1'1 requested by the plaintiff. You may lose money or property or
other rights important to you.
!I
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i YOU SHOULD TAKE THIS PAPBR TO YOUR LAWYER AT ONCB. IF YOU DO
i NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
! I OFFICB SBT FORTH BBLOW TO FIND OUT WHERE YOU CAN GBT LEGAL HELP.
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Court Administrator
Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6100
EUGENE NELSON and DAWN NELSON,
husband and wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
NO.
: CIVIL ACTION AT LAW
JURY TRIAL DEMANDED
ROBERT E. BROUGH, JR. t/d/b/a
R.B.'S CONSTRUCTION,
Defendant
COMPLAINT
BREACH OF CONTRACT
AND NOW, come the Plaintiffs, Eugene Nelson and Dawn Nelson,
by and through their attorney, Patrick F. Lauer, Jr., and hereby
file the following Complaint for Breach of Contract, in support of
which Plaintiffs respectfully aver as follows:
1. Plaintiffs are adult individuals residing at 63 Red Tank
Road, Boiling Springs, Cumberland County, Pennsylvania, 17007.
2. Defendant is an adult individual trading and doing
business as R.B.' s Construction with an address at 1104 A pine
Road, Carlisle, Pennsylvania, 17013.
3. Plaintiffs and Defendant entered into a written contract
whereby the Defendant agreed to remodel the Plaintiffs' home at 63
Red Tank Road, Boiling Springs, Pennsylvania, 17013 for $44,195.32.
See Exhibit "A".
4. On or about December 6, 1996, Defendant departed the job
site before completing the work contracted for in August of 1996.
5. The Defendant provided no explanation for departing the
job site and for his failure to complete the project.
6. The Plaintiff did not interfere with the Defendant while
completing the project.
7. The Plaintiff was not a contributory factor in the
Defendant leaving the job site.
8. The Defendant's actions in failing to complete the terms
and conditions of the contract are a breach of contract.
9. Tuckey Restoration, Inc., 12 stover Drive, Carlisle, PA,
17013, performed an independent inspection of the Plaintiff's
property and estimated the cost to complete the project is
$35,000.00 plus cleaning and demolition work.
10. The Defendant's failure to perform the project, of which
the costs associated with each item were quoted by the Defendant
for completion, consisted of the following:
Sand blast brick
Replace 472 sq. ft. of attic floor
Replace 1/4" round molding 160 lin.ft.
Replace 1 1/2" cove molding 160 lin.ft.
Replace half of snow guards
Pre-hung elite door
Paint brick, floor and floor joists
stain killer
Replace four shutters
Replace two pine panel doors
Handrail in attic
Demolition of 2nd floor
$
$
$
$
$
$
with
$ 260.00
$ 374.00
$ 282.00
$ 68.00
$3,492.00
650.00
969.00
65.00
118.00
108.00
120.00
Southeast Bedroom
" One gallon trim paint $ 30.47
Paint 1 door, 3 windows, trim $ 120.00
Reinstall trim $ 80.00
Painting the room $ 160.00
Northeast Bedroom
One gallon trim paint $ 30.47
Paint 1 door, 3 windows, trim $ 120.00
Reinstall trim $ 80.00
Painting the room $ 160.00
wood around roof
$1,140.00
i
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11.
The Defendant further breached the agreement by failing
to completed the job in a workmanlike manner through the following:
The four windows in the attic were operable
prior to the fire, but the replacement
windows were non-operable and the
framing was unfinished $1,440.00
Used 1/2" drywall which is contrary to the
estimate listing 5/8" drywall. Shingles
were half nailed and half stapled. No
a-clips put between plywood for expansion.
May void warranty on the shingles $1,000.00
Bath tub walls installed improperly,
worker painted over dry wall dust
and must be sanded and repainted,
Drywall incomplete $ 393.43
160 lin. ft. of 1x12 soffit actually
replaced with 3/8" plywood strips and
five 4x8 sheets $ 680.00
1x8 facing actually replaced with
3/4 x 5 3/4 $ 520.00
Toilet, faucet in shower, as well as
basement plumbing leak
II
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I for particular use.
i
12.
The Defendant breached the implied warranty of fitness
13. The estimate by Tuckey Restoration, Inc. states "the
I!
integrity of the drywall work included uneven and wavy sheets."
14. On the additional work agreed to, the Plaintiffs'
supplied the Luaun valued at twenty-one dollars ($21.00).
15. On the additional work, Eugene Nelson performed the
demolition valued at $657.36.
16. Defendant damaged a vanity with a purchase price of one
hundred and ten dollars ($110.00).
17. Employee of Defendant broke red etched glass above the
front door of Plaintiffs' residence.
18. Employee of Defendant broke the legs off Plaintiffs'
chess set (table) which is worth fifteen hundred dollars
($1,500.00) .
19. Defendant paid $52.00 for the rubber roof as opposed to
the $212.00 estimate and Plaintiffs' should be reimbursed for the
$160.00 difference.
20. Plaintiffs supplied forty Western Red Cedar nine foot
posts, of which the two hundred dollar ($200.00) cost should be
reimbursed by the Defendant.
21. Defendant failed to replace the gutters and rainspouts he
pulled off the Plaintiffs' residence.
22. Plaintiffs, via Old Guard Mutual Insurance Company,
performed their obligations by paying $30,000.00 (thirty thousand
dollars) to the Defendant for services rendered.
23. The Defendant has been unjustly enriched, for the cost to
complete this agreed upon project in its entirety - subsequent to
Defendant's breach for making an improvident contract - will
greatly exceed $44,195.32.
24. The Defendant has refused to perform the contract he made
with the Plaintiffs, and his leaving the job site prior to
completion constitutes breach of contract.
lWtdIlll~"""""" ml*.:w
Exhibit A
110111
Ci;
R. B.'s CONSTRUCTION
All Types of Carpenter Work
1104 A Pine Road
Carlisle, PA 17013
(717) 486-7576
DATE
"
LV
R. B.'s CONSTRUCTION
. All Tvpes of Carpenter Work
1104 A Pine Road
Carlisle, PA 17013
(717) 486-7576
Dale .1;- 0/ It
, 1,;1);. 1.;.1',:b,
. v
DATE
Q
L
R. B. 's CONSTRUCTION
. All Types of Carpenter Work
1104 A Pine Road
Carlisle, PA 17013
(717) 486-7576
,
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I
EUGENE NELSON AND
DAWN NELSON,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
NO. 97.1310 CIVIL TERM
CIVIL ACTION AT LAW
JURY TRIAL DEMANDED
I
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ROBERT E. BROUGH, JR.
tIdlbla R.B.'S CONSTRUCTION,
Defendant
PRELIMINARY OBJECnONS OF
DEFENDANT. ROBERT E. BROUGH. JR. t/dlb/a R.B.'S CONSTRucnON
AND NOW, comes Defendant, Robert E. Brough, Jr., t1dlb/a R.B.'s Construction, by and
through his attorneys, METTE, EVANS & WOODSIDE, to make the following Preliminary
Objections, in support of which he avers as follows:
COUNT I- MOnON TO STRIKE FOR FAILURE TO PLEAD IN ACCORDANCE
WITH LAW AND/OR RULE OF COURT
1. In their Complaint, Plaintiffs, Eugene and Dawn Nelson (collectively referred to
hereinafter as "Nelson') allege the existence of a written contract between themselves and
Defendant Robert E. Brough, Jr., t1dlb/a R.B.'s Construction ("Brough').
2. Plaintiffs do not attach a written contract to their Complaint, however. Instead,
Plaintiffs attach as Exhibit "A" to their Complaint a bid sheet prepared by Brough for Plaintiffs'
insurance company, Old Guard Insurance, c/o Gregory L. Snyder.
3. The document attached by Plaintiffs to their Complaint does not constitute a
contract.
9. Pursuant to the requirements of Pa. RC.P. 1019(h), Plaintiffs' claim Is not In
accordance with the law andlor rule of court and this Court should strike Plaintiffs' Complaint
pursuant to Pa. RC.P. 1028(a)(2) accordingly.
WHEREFORE, Defendant, Robert E. Brough, Jr., Udlb/a RB.'s Construction,
respectfully requests this Court to grant its Motion to Strike Plaintiffs' Complaint for failure to
plead in accordance with law andlor Rule of Court.
COUNT II- MOTION TO STRIKE FOR PLAINTIFFS LACK OF
CAPACITY TO SUE DEFENDANT PURSUANT TO PA. R.C.P. 1028(sU61
10. In the alternative to the foregoing, if this Court deems the document attached to
Plaintiffs' Complaint at Exhibit "A" a written contract, then Plaintiffs lack contractual privity to sue
Defendant and lack standing to bring the claim herein.
11. Exhibit 'A' clearly provides that the services and materials provided by Brough
were "sold to' Old Guard Insurance Company rJo Gregory L. Snyder.
12. If Exhibit 'A' is deemed a contract, Nelson is not a party to the contract and lacks
contractual privity to bring this claim,
13. The proper party to bring this claim, if any, is Old Guard Insurance Company.
14. Plaintiffs have no standing.
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EUGENE NELSON and DAWN NELSON,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-1310 CIVIL TERM
v.
ROBERT E. BROUGH, JR.
t/d/b/a R.B.'S CONSTRUCTION,
Defendant
CIVIL ACTION AT LAW
JURY TRIAL DEMANDED
REPLY TO DEFENDANT'S NEW MATTBR AND COUNTERCLAIM
AND NOW, come the Plaintiffs, Eugene Nelson and Dawn Nelson,
by and through their attorney, Patrick F. Lauer, Jr., and hereby
file the following Reply to Defendant's New Matter and Counterclaim
filed by Defendant, Robert E. Brough, Jr., t/d/b/a R.B.'s
Construction, in support of which Plaintiffs respectfully aver as
follows:
45. Denied. Paragraph 45 is a conclusion of law to which no
responsive pleading is required. If the Court deems a response
necessary, Plaintiffs deny their Complaint fails to state a cause
of action regarding uncompleted work. Defendant did not perform
all work at the job site in a workmanlike and professional manner.
Defendant breached the oral agreement and the Plaintiffs' conduct
was not interfering or threatening.
46. Denied. Paragraph 46 is a conclusion of law to which no
responsive pleading is required. If the Court deems a response
necessary, Plaintiffs specifically deny their conduct was the
direct proximate cause of the Defendant leaving the job site
prematurely.
47. Denied. Paragraph 47 is a conclusion of law to which no
.
responsive pleading is required. If the Court deems a response
necessary, Plaintiffs specifically deny they have failed to plead
adequate facts to support their claimed damages.
48. Denied. Paragraph 48 is a conclusion of law to which no
responsive pleading is required. If the Court deems a response
necessary, Plaintiffs deny engaging in interference and threatening
conduct.
49. Denied. Paragraph 49 is a conclusion of law to which no
responsive pleading is required. If the Court deems a response
necessary, Plaintiffs deny failure to make payment to Defendant.
To the contrary, Plaintiffs paid Defendant Thirty Thousand Dollars
($30,000.00) which constitutes consideration.
50. Denied. Paragraph 50 is a conclusion of law to which no
responsive pleading is required. If the Court deems a response
necessary, Plaintiffs deny owing Defendant any IDoney due to the
Defendant's nonperformance and breach of contract.
5!. Admitted.
52. Admitted in part and Denied in part. It is admitted that
the allegations and exhibits of Defendant's Mechanic's Lien Claim
filed March 21, 1997 are incorporated by reference in paragraph 52
of Defendant's Counterclaim, and that it is attached as Exhibit
"A". However, Plaintiffs specifically deny that Defendant provided
services and materials valued at Seventeen Thousand Eight Hundred
Ninety-Six Dollars Sixty-Four ($17,896.64) Cents, and Plaintiffs
specifically deny that they owe Defendant this amount.
WHEREFORE, Plaintiffs respectfully request this Honorable
Court to deny the relief requested in the Defendant's Counterclaim.
Plaintiffs also respectfully request this Court enter judgment
against the Defendant in the amount of Forty-One Thousand Two
Hundred and Fifty Dollars ($41,250.00), plus costs of demolition
I:
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and clean up, incidental and consequential damages, court costs,
attorney fees, interest, plus any other relief the Court may deem
appropriate.
Respectfully submitted,
Date: S::-h 7?
trick F. Lauer, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
lD' 46430 Tel. (717) 763-1800
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EUGENE NELSON and DAWN NELSON, . IN THE COURT OF COMMON PLEAS
.
husband and wife, . CUMBERLAND COUNTY, PENNSYLVANIA
.
Plaintiffs .
.
.
.
v. NO. 97-1310 CIVIL TERM
.
.
ROBERT E. BROUGH, JR. t/d/b/a CIVIL ACTION AT LAW
R.B. 's CONSTRUCTION,
Defendant . JURY TRIAL DEMANDED
.
AMENDED COMPLAINT
PURSUANT TO Pa.R.C.P. No. 1028/cl/11
AND NOW, come the Plaintiffs, Eugene Nelson and Dawn Nelson,
by and through their attorney, Patrick F. Lauer, Jr., and hereby
file the following Amended Complaint, in support of which
Plaintiffs respectfully aver as follows:
COUNT I - BREACH OF ORAL CONTRACT
1. Paragraphs 1 and 2 of the Complaint are incorporated
herein by reference.
2. Paragraphs 3 through 24 of the Complaint are hereby
withdrawn.
3. On July 15,1996, the Plaintiffs', Eugene Nelson and Dawn
Nelson (collectively referred to hereinafter as "the Nelsons"),
residence received considerable damage from a fire.
4. The Plaintiffs have a homeowners insurance policy with
IOld Guard Mutual Insurance Company via R.T. Dunn Insurance, Inc.,
1200 W. Main St., P.O. Box 2335, Mechanicsburg, PA 17055.
5. Plaintiffs and Defendant entered an oral contract based
upon a bid sheet prepared by Robert E. Brough, Jr. See Exhibit" A" .
. .
6. Plaintiffs and Defendant orally agreed that the Defendant
would provide materials and complete services in accordance with
the specifications detailed in exhibit "A" for $44,195.32.
7. Gregory L. Snyder, Claims Adjuster for Old Guard
Insurance Company, agreed to authorize payments to the Plaintiffs
based on the oral agreement between Plaintiffs and Defendant, which
is confirmed in the bid sheet attached as exhibit "A".
8. In Paragraph 3 of Robert E. Brough, Jr.'s Mechanic's Lien
Claim filed on March 21, 1997, Brough admits the existence of an
oral contract between the Nelsons and himself. See Exhibit "B".
9. In the event the Court deems the agreement to be between
Old Guard Insurance Company and the Defendant, the Plaintiffs
allege they are third party beneficiaries.
10. The bid sheet lists the beneficiary as the "Nelson job 63
Red Tank Rd." See Exhibit "A".
11. In Paragraph 3 of the Defendant's Action in Replevin
filed on January 30, 1997, Defendant states he provided various
construction services at the Nelsons' residence upon their request
land instruction. See Exhibit "C".
, 12. Plaintiffs allege partial performance after receiving
,
,
!instructions constitutes offer and acceptance of a contract.
,
13. Plaintiffs allege an oral contract is sufficient to bring
la breach of contract claim.
I
,
14. Old Guard Mutual Insurance Company made checks payable to
,the order of Mr. Nelson and Farmer's Trust, as mortgagee.
15. Plaintiffs allege that endorsement of these checks, and
hence payment to the Defendant constituted consideration.
16. Plaintiffs allege that there was a "meeting of the
minds. "
17. Plaintiffs allege that the terms and conditions of the
contract were agreed upon in accordance with the bid sheet.
18. On or about December 6, 1996, Defendant departed the job
site before completing the work agreed upon.
19. The Defendant provided no explanation for departing the
job site and for his failure to complete the project.
20. The Plaintiff did not interfere with the Defendant while
completing the project.
21. The Plaintiff was not a contributory factor in the
Defendant leaving the job site.
22. The Defendant's actions in failing to complete the terms
and conditions of the agreement are a breach of contract.
23. Tuckey Restoration, Inc., 12 Stover Drive, Carlisle, PA,
17013, performed an independent inspection of the Plaintiff's
property and estimated the cost to complete the project from the
time of the breach is $35,000.00 plus cleaning and demolition work.
See Exhibit "0".
24. The Defendant's failure to perform the project, of which
the costs associated with each item were quoted by the Defendant
for completion, consisted of the following:
Sand blast brick $ 650.00
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Replace 472 sq. ft. of attic floor
Replace 1/4" round molding 160 lin.ft.
Replace 1 1/2" cove molding 160 lin.ft.
Replace half of snow guards
Pre-hung elite door
Paint brick, floor and floor joists
stain killer
Replace four shutters
Replace two pine panel doors
Handrail in attic
Demolition of 2nd floor
$
$
$
$
$
with
$ 260.00
$ 374.00
$ 282.00
$ 68.00
$3,492.00
969.00
65.00
U8.00
108.00
120.00
Southeast Bedroom
One gallon trim paint $ 30.47
Paint 1 door, 3 windows, trim $ 120.00
Reinstall trim $ 80.00
Painting the room $ 160.00
Northeast Bedroom
One gallon trim paint $ 30.47
Paint 1 door, 3 windows, trim $ 120.00
Reinstall trim $ 80.00
Painting the room $ 160.00
Southwest Bedroom
One gallon trim enamel $ 30.47
Paint 2 doors, 1 window $ 120.00
Reinstall trim $ 80.00
Painting the room $ 160.00
Northwest Bedroom
Four buckets compound $ 55.20
Hang and finish $ 378.00
One gallon trim enamel $ 30.47
Two gallons drywall sealer $ 35.19
Two gallons paint $ 48.30
Labor to paint walls $ 160.00
Paint 2 windows, 4 doors $ 140.00
Reinstall trim $ 80.00
Back Bedroom
6 1/2x4x12 boards $ 52.80
2 2x6x16 drywall nailers $ 14.20
3 buckets compound $ 41.40
Hang and finish $ 154.28
2 gallons drywall sealer $ 35.19
2 gallons paint $ 48.30
Labor to paint $ 160.00
2 gallons sealer
2 gallons trim paint
paint walls and trim
$ 35.19
$ 60.94
$ 280.00
$ 44.00
$ 13.80
$ 112.48
$ 24.15
$ 17.60
$ 60.00
$ 27.60
$ 35.19
$ 48.30
$ 140.00
$2,365.00
$1,408.00
$ 480.00
$1,140.00
Basement Stairwav
5 1/2" drywall
1 bucket compound
Labor to hang and finish
1 gallon wall paint
1 gallon drywall sealer
Labor to Paint
Rear Laundrv Room
2 buckets compound
2 gallons drywall sealer
2 gallons paint
Labor to paint
Clean Uo and Refinish
Stairway Bannister
Clean up and repaint 3 bedroom floors
Hallway, 2nd floor, stairway to attic,
stairway entrance way, 2 living
rooms, paint exterior wood and
wood around roof
See Exhibit "A".
25. On the additional work agreed to, the Plaintiffs'
supplied the Luaun valued at twenty-one dollars ($21.00).
NBBREFORE, the Plaintiffs demand judgment against the
Defendant in the amount of thirty-five thousand dollars
($35,000.00) to complete the project, plus costs of demolition and
clean up, incidental and consequential damages, court costs,
attorney fees, interest, plus any other relief the Court may deem
appropriate.
COUNT II - BREACH OF IMPLIED WARRANTY
26. Paragraphs 1 through 25 are incorporated herein by
reference.
27. The Defendant breached the implied warranty of fitness
for particular use.
2B. The estimate by Tuckey Restoration, Inc. states "the
integrity of the drywall work included uneven and wavy sheets." See
Exhibit "D".
29. The Defendant further breached the agreement by failing
to completed the job in a workmanlike manner through the following:
The four windows in the attic were operable
prior to the fire, but the replacement
windows were non-operable and the
framing was unfinished $1,440.00
Used 1/2" drywall which is contrary to the
estimate listing SIB" drywall. Shingles
were half nailed and half stapled. No
a-clips put between plywood for expansion.
May void warranty on the shingles $1,000.00
Bath tub walls installed improperly,
worker painted over dry wall dust
and must be sanded and repainted,
Drywall incomplete $ 393.43
160 lin. ft. of 1x12 soffit actually
replaced with 3/B" plywood strips and
five 4xB sheets $ 6BO.00
1xB facing actually replaced with
3/4 x 5 3/4 $ 520.00
Toilet, faucet in shower, as well as
basement plumbing leak
30. Defendant damaged a vanity with a purchase price of one
hundred and ten dollars ($110.00).
31. Employee of Defendant broke red etched glass above the
front door of Plaintiffs' residence ($1,200.00). See Exhibit "E".
32. Employee of Defendant broke the legs off Plaintiffs'
chess set (table) which is worth fifteen hundred dollars
11
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($1,500.00).
33. Defendant failed to replace the gutters and rainspouts he
pulled off the Plaintiffs' residence.
WHEREFORE, the Plaintiffs demand judgment against the
Defendant in the amount of thirty-five thousand dollars
($35,000.00) to complete the project, plus costs of demolition and
clean up, incidental and consequential damages, court costs,
attorney fees, interest, plus any other relief the Court may deem
appropriate.
COUNT III - UNJUST ENRICHMENT
34. Paragraphs 1 through 33 are incorporated herein by
reference.
35. Defendant paid $52.00 for the rubber roof as opposed to
the $212.00 estimate and Plaintiffs' should be reimbursed for the
$160.00 difference.
36. Plaintiffs supplied forty Western Red Cedar nine foot
posts, of which the two hundred dollar ($200.00) cost should be
reimbursed by the Defendant.
37. Plaintiffs, via Old Guard Mutual Insurance Company,
performed their obligations by paying $30,000.00 (thirty thousand
dollars) to the Defendant for services rendered.
38. The Defendant has been unjustly enriched, for the cost to
complete this agreed upon project in its entirety - subsequent to
Defendant's breach for making an improvident contract - will
I,
greatly exceed $44,195.32.
39. The Defendant has refused to perform the agreement he
made with the Plaintiffs, and his leaving the job site prior to
completion constitutes breach of contract, breach of implied
warranty and unjust enrichment.
WHEREFORE, the Plaintiffs demand judgment against the
Defendant in the amount of thirty-five thousand dollars
($35,000.00) to complete the project, plus costs of demolition and
clean up, incidental and consequential damages, court costs,
attorney fees, interest, plus any other relief the Court may deem
appropriate.
COUNT IV - BREACH OF ORAL CONTRACT
40. Paragraphs 1 through 39 are incorporated herein by
reference.
41. Plaintiffs and Defendant reached an oral agreement on
additional work beyond the bid sheet in exhibit "A." See Exhibit
ifF".
42. Plaintiffs allege Defendant agreed to pay Eugene Nelson,
Plaintiff, ten dollars ($10.00) per hour for labor.
43. Plaintiffs allege Eugene Nelson performed six hundred and
twenty-five hours of labor.
44. Plaintiffs allege the Defendant failed to compensate
Eugene Nelson for the agreed upon labor.
WHEREFORE, the Plaintiffs demand judgment against the
Defendant in the amount of Six Thousand Two Hundred and Fifty
EUGENE NELSON and DAWN NELSON,
husband and wife,
PENNSYLVANIA
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
Plaintiffs
v.
NO. 97-1310 CIVIL TERM
ROBERT E. BROUGH, JR. t/d/b/a
R.B.'S CONSTRUCTION,
Defendant
CIVIL ACTION AT LAW
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the
foregoing AMENDED COMPLAINT upon the person, and in the manner,
indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of the
same with the United States Post Office at Camp Hill,
Pennsylvania, through first class mail, prepaid and addressed as
follows:
METTE, EVANS & WOODSIDE
Michael D. Reed, Esquire
3401 North Front st.
P.O. Box 5950
Harrisburg, PA 17110-0
Patrie Laue, Jr., Esquire
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011
10' 46430 Telephone (717) 763-1800
Date:
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exhibit A
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R. B. 's CONSTRUCTION
. All Types 01 Carpenter Work
1104 A Pine Road
Carlisle, PA 17013
(717) 486-7576
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Exhibit B
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RESTORATION, INC.
12 Stover Drive
Carlisle, fA 17013
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Febnwy 24,1997
Mr. Patrick Lauer, Jr.
a South Hanover Street
CarHsle, PA 17013
Subject:
Eugene Nelson
63 Red Tank Road
Mt. Holly Springs, PA
'Dear Mr. Lauer:
On January 7, 1997, Tuckcy's was called out to perform an inspection oCthe above-
mentioned property. The following observations were IWIde:
I. The house consi~1ed of a two-stoty farmhouse.
2. A fire had OCCUlTed in the attic of the house. The cause was ruled to be
electrical.
3. Damage to the house con~;sted of the need for new trusses and a roof.
plus exh:Dsi1ie water damage throughout the entire first and second
floor.
We were ad....ised that Mr. Nelson had hired a contractor to make the necessaty repairs to
the house and that the contractor had begun these repairs.
The following observations were made y,ith the understanding that Tuckey's did not have
the opportunity to assess the properly immediately follov.1ng the fire:
1. The roof had been repaired: ho\\e\'er, upon mention by the owner, it
was observed that the coutractor had not installed H clip; in the
plywood sheathing and, therefore, there were deflections in the roof
2. Rooftnlsses looked acceptable.
3. All damaged areas were removed froO! the bouse.
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Exhibit F
110111
R. B. 's CONSTRUCTION
All Types of Carpenter Work
11 04 A Pine Road
CarUsIe, PA 17013
(717) 486-7576
Sold to
Adclres
Phone
DATE
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DESCRIPTION
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Date /.:?-/~-f.6
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EUGENE NELSON and DAWN
NELSON, husband and wife,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ROBERT E. BROUGH, JR.,
t/d/b/a R.B.'s CONSTRUCTION,
Defendant
NO. 97-1310 CIVIL
IN RE: PRETRIAL CONFERENCE
A pretrial conference was held before the Honorable
George E. Hoffer, president Judge, on Wednesday, January 13,
1999.
In this contract action, Matthew Eshelman, Esquire,
represents the plaintiff, and Michael D, Reed, Esquire,
represents the defendant,
Plaintiffs are homeowners whose home suffered
extensive fire damage. Plaintiffs had fire insurance.
Plaintiffs hired the defendant to make needed restorations.
Defendant supplied various estimate sheets, totaling about
$44,000.00, to the insurance carrier; both sides agree that the
estimates supplied were appropriate in dollar amount and covered
all fire damages, Defendant started in on the work and
defendant claims the insurance company issued at least two
co-paychecks for the amount of $30,000,00 which the defendant
has received for completed work,
Defendant counterclaims that he is still owed
$17,000,00, which includes some fire damage work that he
completed, plus additional work done at the homeowners request,
and outside the fire damage coverage, Defendant claims that the
agreement with the homeowners was that they would move out of
the house while he completed the work; this did not happen, and
defendant left the job at some point without totally completing
,
97-1310 civil
Pretrial Conference
page 2
everything, for various reasons for which the defendant feels
justified.
Plaintiffs' first claim is for $6500.00, which is the
husband's claim for work he did, at $10.00 an hour, taking the
place of work that Brough should have done. Plaintiffs' second
claim is for approximately $35,000,00 for money needed to
properly finish the job. plaintiffs' third claim is for
approximately $15,000,00 that plaintiff feels defendant has been
unjustfiably enriched; plaintiff puts forward this theory as an
alternative to the $35,000,00 claim,
Plaintiff has had some of the work done for which he
received estimates from the Tuckey company, Plaintiffs' lawyer
cannot tell the court how much has been done to this point.
Defendant desires to inspect the premises to determine the
extent of completion of the repairs, and both sides agree that
the plaintiff homeowner will make the house available for
complete inspection on Saturday, January 16, 1999, at noontime.
The court desires to have a complete charge on the
contract elements to be submitted to the jury, along with an
appropriate measure of damages charge; the court also desires
what counsel can consider an appropriate jury interrogatory
slip. Plaintiffs' counsel shall furnish his version of
appropriate charges and interrogatories to the court and defense
counsel no later than the close of business on Wednesday,
January 20, 1999; defense counsel shall respond with his version
of these documents no later than close of business on Wednesday,
5. Defendant (Brough) claims that he completed additional repairs to the home
(beyond the scope of the fire restoration agreement) In the nature of electrical,
plumbing, bathroom, extension roof and other repairs for which he has not been
compensated. Defendant (Brough) claims he Is owed $10,338 for those repairs.
Plaintiffs (Nelsons) contend that they owe the defendant (Brough) $3865, and no
more, for the additional repairs. What Is the amount of the additional repair work
undertaken by Brough for which he has not been compensated (your verdict must
be a dollar amount between $3,865 and $10,338)?
-=
Amount: $ '-:::l-XD-
6. What amount of hours do you find that Eugene Nelson worked for Robert
Brough within the scope of Brough's fire restoration contract, or the approved
extras?
Number of hours: '3LC:.>
7a, Do you find that the Plaintiffs have proven, by a fair preponderance of the
evidence, that the parties agreed to an hourly wage of $10.00 for Plaintiff Eugene
Nelson's work performed within the scope of Defendant Brough's contracts.
Yes
No ><
If your answer to Question 7a. Is no, then proceed to Question 7b.
If your answer is yes, stop here.
7b. The Plaintiffs maintain that a reasonable hourly wage for the work performed
by Mr. Nelson toward the fire restoration or extra remodeling Is $10,00 per hour.
The Defendant maintains that a reasonable hourly wage for that work was $5.00
to $6.00 per hour, What is a reasonable hourly wage for the work performed by
Mr. Nelson toward the fire restoration or extra remodeling (your verdict must be
between $5.00 and $10.00 per hour)?
Amount: $ C.,-
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(Date)
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(Fore son)
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LEGAL DESCRIPTION OF PROPERTY FOR SHERIFF'S SALE
The real estate is described more fully as follows:
All those two certain tracts ofland situate in South Middletown Township,
Cumberland County, Pennsylvania, bounded and described as follows:
Tract No.1, North:
BEGINNING at a railroad spike set 1.5 feet west of the centerline of the Red
Tank Road and on the northern line of the Philadelphia, Harrisburg and Pittsburgh
Branch of the Conrail Railroad; thence by the northern line of said railroad North 81
degrees 4 minutes West 461.03 feet to a capped iron pin; thence by a curve to the
right with a radius of 1910.08 feet an arc length of 406.16 feet to a capped iron pin;
thence by same North 68 degrees 53 minutes West 292.95 feet to a capped iron pin;
thence by land now or formerly of PPG Industries North 16 degrees 38 minutes 53
seconds East 741.37 feet to an existing concrete monument; thence by same South 74
degrees 49 minutes 37 seconds East 598.77 feet to an existing buried spike 1 foot
East of the center line of the said Red Tank Road; thence in said Road South 0
degrees 21 minutes 3 seconds East 21.28 feet to an existing railroad spike 1.5 feet
East of the center line of said road; thence by same South 0 degrees 34 minutes 14
seconds West 182.70 feet to a railroad spike along the west edge of the macadam of
said road; thence in said road South 23 degrees 21 minutes 4 seconds East 86.80 feet
to an existing buried spike 1.3 feet west of the center line of said road; thence by
same South 27 degrees 46 minutes 25 seconds East 114.72 feet to a p.k. nail in the
center line of said road; thence by same South 29 degrees 29 minutes 15 seconds East
257.91 feet to a p.k. nail in the center line of said road; thence by same South 30
degrees 5 minutes 46 seconds East 156.70 feet to a p.k. nail in the center of said road;
thence by same South 26 degrees 1 minute 46 seconds East 81.52 feet to a p.k. nail
set in the center of said road; thence by same South 8 degrees 9 minutes 43 seconds
East 17.50 feet to a railroad spike set 1.5 feet west of the center line of said road, the
place of beginning, containing 14.7449 acres, more or less, and being improved with a
2-112 story brick and frame house, frame barn, frame sheds, cribs and other
outbuildings, and
IT BEING Lot No.1, North on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Office of
the Recorder ofOeeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Tract No.1, South:
BEGINNING at a capped iron pin on the southern line of the Philadelphia,
Harrisburg and Pittsburgh Branch of the Conrail Railroad, said capped iron pin being
438.12 feet South North 81 degrees 4 minutes West ofa railroad spike in the center
line of the Red Tank Road and said capped iron pin being the northwest corner of
land of Franklin S. Rhinehart, Jr. and wife; thence along said Rhinehart land South
19 degrees 26 minutes 2 seconds West 609.59 feet to an iron pipe; thence by same
North 60 degrees 33 minutes 9 seconds West 151.07 feet to an iron pin; thence by
same North 42 degrees 40 minutes 10 seconds West 101.73 feet to an iron pipe;
thence by same North 68 degrees 17 minutes 18 seconds West 765.95 feet to an iron
pipe; thence by land now or formerly of J. Frank Wilson and wife North 17 degrees 14
minutes 39 seconds East 399.79 feet to an iron pin at old fencepost; thence by same
North 87 degrees 36 minutes 32 seconds East 207 feet to a capped iron pin on the
southern line of said railroad; thence by the southern line of said railroad South 68
degrees 53 minutes East 369.73 feet to a capped iron pin; thence by same on a curve
to the left with a radius of 1,970.08 feet an arc distance of 418.92 feet to a capped iron
pipe; thence by same South 81 degrees 4 minutes East 41.36 feet to a capped iron pin,
the place of beginning, containing 11.5560 acres, more or less,
IT BEING Lot No.1, South on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Offile of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Both tracts totaling 26.30 acres more or less.
UNDER AND SUBJECT to a Metropolitan Edison Company Right-of-Way
over the southern part thereof as indicated and shown on said Plan.
TOGETHER WITH a 30 foot wide easement for the maintenance, repair and
replacement of the spring houses and water lines as shown on said Subdivision Plan
and as set forth in paragraph 2 of the Notes and Site Data and the Certification of
Title on said Subdivision Plan, except that in said Certification Lots #1 and #2
should be lots #1, North and #1, South and that lot #3 should be lot #2.
BEING the same premises which Harold A. Wise and Anna M. Wise, by their
deed dated April 18, 1986 and to be recorded simultaneously with this document
granted and conveyed unto Eugene J. Nelson, Jr. and Dawn M. Nelson, as recorded at
Deed Book V-31, page 359.
196230
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LEGAL DESCRIPTION OF PROPERTY FOR SHERIFF'S SALE
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The real estate is described more fully as follows:
All those two certain tracts of land situate in South Middletown Township,
Cumberland County, Pennsylvania, bounded and described as follows:
Tract No.1, North:
BEGINNING at a railroad spike set 1.5 feet west of the centerline of the Red
Tank Road and on the northern line of the Philadelphia, Harrisburg and Pittsburgh
Branch of the Conrail Railroad; thence by the northern line of said railroad North 81
degrees 4 minutes West 461.03 feet to a capped iron pin; thence by a curve to the
right with a radius of 1910.08 feet an arc length of 406.16 feet to a capped iron pin;
thence by same North 68 degrees 53 minutes West 292.95 feet to a capped iron pin;
thence by land now or formerly ofPPG Industries North 16 degrees 38 minutes 53
seconds East 741.37 feet to an existing concrete monument; thence by same South 74
degrees 49 minutes 37 seconds East 598.77 feet to an existing buried spike 1 foot
East of the center line of the said Red Tank Road; thence in said Road South 0
degrees 21 minutes 3 seconds East 21.28 feet to an existing railroad spike 1.5 feet
East of the center line of said road; thence by same South 0 degrees 34 minutes 14
seconds West 182.70 feet to a railroad spike along the west edge of the macadam of
said road; thence in said road South 23 degrees 21 minutes 4 seconds East 86.80 feet
to an existing buried spike 1.3 feet west of the center line of said road; thence by
same South 27 degrees 46 minutes 25 seconds East 114.72 feet to a p.k. nail in the
center line of said road; thence by same South 29 degrees 29 minutes 15 seconds East
257.91 feet to a p.k. nail in the center line of said road; thence by same South 30'
degrees 5 minutes 46 seconds East 156.70 feet to a p.k. nail in the center of said road;
thence by same South 26 degrees 1 minute 46 seconds East 81.52 feet to a p.k. nail
set in the center of said road; thence by same South 8 degrees 9 minutes 43 seconds
East 17.50 feet to a railroad spike set 1.5 feet west of the center line of said road, the
place of beginning, containing 14.7449 acres, more or less, and being improved with a
2-112 story brick and frame house, frame barn, frame sheds, cribs and other
outbuildings, and
IT BEING Lot No.1, North on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Office of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Tract No.1, South:
BEGINNING at a capped iron pin on the southern line of the Philadelphia,
Harrisburg and Pittsburgh Branch of the Conrail Railroad, said capped iron pin being
438.12 feet South North 81 degrees 4 minutes West ofa railroad spike in the center
line of the Red Tank Road and said capped iron pin being the northwest corner of
land of Franklin S. Rhinehart, Jr. and wife; thence along said Rhinehart land South
19 degrees 26 minutes 2 seconds West 609.59 feet to an iron pipe; thence by same
North 60 degrees 33 minutes 9 seconds West 151.07 feet to an iron pin; thence by
same North 42 degrees 40 minutes 10 seconds West 101.73 feet to an iron pipe;
thence by same North 68 degrees 17 minutes 18 seconds West 765.95 feet to an iron
pipe; thence by land now or formerly of J. Frank Wilson and wife North 17 degrees 14
minutes 39 seconds East 399.79 feet to an iron pin at old fencepost; thence by same
North 87 degrees 36 minutes 32 seconds East 207 feet to a capped iron pin on the
southern line of said railroad; thence by the southern line of said railroad South 68
degrees 53 minutes East 369.73 feet to a capped iron pin; thence by same on a curve
to the left with a radius of 1,970.08 feet an arc distance of 418.92 feet to a capped iron
pipe; thence by same South 81 degrees 4 minutes East 41.36 feet to a capped iron pin,
the place of beginning, containing 11.5560 acres, more or l<lss,
IT BEING Lot No. I, South on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Office of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Both tracts totaling 26.30 acres more or less.
UNDER AND SUBJECT to a Metropolitan Edison Company Right-of-Way
over the southern part thereof as indicated and shown on said Plan.
TOGETHER WITH a 30 foot wide easement for the maintenance, repair and
replacement of the spring houses and water lines as shown on said Subdivision Plan
and as set forth in paragraph 2 of the Notes and Site Data and the Certification of
Title on said Subdivision Plan, except that in said Certification Lots #1 and #2
should be lots #1, North and #1, South and that lot #3 should be lot #2.
BEING the same premises which Harold A. Wise and Anna M. Wise, by their
deed dated April 18, 1986 and to be recorded simultaneously with this document
granted and conveyed unto Eugene J. Nelson, Jr. and Dawn M. Nelson, as recorded at
Deed Book V-31, page 359.
196230
THE NAMES OF THE OWNERS OR REPUTED OWNERS OF THIS
PROPERTY ARE:
Eugene J. Nelson, Jr. and
Dawn M. Nelson
A SCHEDULE OF DISTRIBUTION, being a list of persons, and/or
governmental or corporation entities or agencies being entitled to receive part of the
proceeds of the sale received and to be disbursed by the Sheriff (for example to banks that
hold mortgages and municipalities that are owed taxes) will be filed by the Sheriff thirty
(30) days after the sale and distribution of the proceeds of sale in accordance with this
Schedule will, in fact, be made unless someone objects by filing exceptions to it, within ten
UO) days of the date it is filed. Infonnation about the Schedule of Distribution may be
obtained from the Sheriff of Cumberland County, 1 Courthouse Square, Carlisle,
Pennsylvania 17013.
THIS PAPER IS A NOTICE OF THE TIME AND PLACE OF THE SALE OF
YOUR PROPERTY.
It has been issued because there is a Judgment against you. It may cause
your property to be held, to be sold or to be taken to pay the Judgment. You may have
legal rights to prevent your property from being taken. A lawyer can advise you more
specifically of these rights. If you wish to exercise your rights, you must act promptly.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. GO
TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET FREE LEGAL ADVICE.
Lawyer Referral Service
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
The legal rights you may have are:
1. You may file a petition with the Court of Common Pleas of
Cumberland County to open the judgment if you have a meritorious defense against the
person or company that has entered judgment against you. You may also file a petition
with the same Court if you are aware of a legal defect in the obligation or the procedure
used against you.
-2-
LEGAL DESCRIPTION OF PROPERTY FOR SHERIFF'S SALE
The real estate is described more fully as follows:
All those two certain tracts of land situate in South Middletown Township,
Cumberland County, Pennsylvania, bounded and described as follows:
Tract No. I, North:
BEGINNING at a railroad spike set 1.5 feet west of the centerline of the Red
Tank Road and on the northern line of the Philadelphia, Harrisburg and Pittsburgh
Branch of the Conrail Railroad; thence by the northern line of said railroad North 81
degrees 4 minutes West 461.03 feet to a capped iron pin; thence by a curve to the
right with a radius of 1910.08 feet an arc length of 406.16 feet to a capped iron pin;
thence by same North 68 degrees 53 minutes West 292.95 feet to a capped iron pin;
thence by land now or formerly ofPPG Industries North 16 degrees 38 minutes 53
seconds East 741.37 feet to an existing concrete monumtlnt; thence by same South 74
degrees 49 minutes 37 seconds East 598.77 feet to an existing buried spike 1 foot
East of the center line of the said Red Tank Road; thence in said Road South 0
degrees 21 minutes 3 seconds East 21.28 feet to an existing railroad spike 1.5 feet
East of the center line of said road; thence by same South 0 degrees 34 minutes 14
seconds West 182.70 feet to a railroad spike along the west edge of the macadam of
said road; thence in said road South 23 degrees 21 minutes 4 seconds East 86.80 feet
to an existing buried spike 1.3 feet west of the center line of said road; thence by
same South 27 degrees 46 minutes 25 seconds East 114.72 feet to a p.k. nail in the
center line of said road; thence by same South 29 degrees 29 minutes 15 seconds East
257.91 feet to a p.k. nail in the center line of said road; thence by same South 30
degrees 5 minutes 46 seconds East 156.70 feet to a p.k. nail in the center of said road;
thence by same South 26 degrees 1 minute 46 seconds East 81.52 feet to a p.k. nail
set in the center of said road; thence by same South 8 degrees 9 minutes 43 seconds
East 17.50 feet to a railroad spike set 1.5 feet west of the center line of said road, the
place of beginning, containing 14.7449 acres, more or less, and being improved with a
2-112 story brick and frame house, frame barn, frame sheds, cribs and other
outbuildings, and
IT BEING Lot No. I, North on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Office of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Tract No.1, South:
BEGINNING at a capped iron pin on the southern line of the Philadelphia,
Harrisburg and Pittsburgh Branch of the Conrail Railroad, said capped iron pin being
438.12 feet South North 81 degrees 4 minutes West of a railroad spike in the center
line of the Red Tank Road and said capped iron pin being the northwest corner of
land of Franklin S. Rhinehart, Jr. and wife; thence along said Rhi/lehart land South
19 degrees 26 minutes 2 seconds West 609.59 feet to an iron pipe; thence by same
North 60 degrees 33 minutes 9 seconds West 151.07 feet to an iron pin; thence by
same North 42 degrees 40 minutes 10 seconds West 101.73 feet to an iron pipe;
thence by same North 68 degrees 17 minutes 18 seconds West 765.95 feet to an iron
pipe; thence by land now or formerly of J. Frank Wilson and wife North 17 degrees 14
minutes 39 seconds East 399.79 feet to an iron pin at old fencepost; thence by same
North 87 degrees 36 minutes 32 seconds East 207 feet to a capped iron pin on the
southern line of said railroad; thence by the southern line of said railroad South 68
degrees 53 minutes East 369.73 feet to a capped iron pin; thence by same on a curve
to the left with a radius of 1,970.08 feet an arc distance of 418.92 feet to a capped iron
pipe; thence by same South 81 degrees 4 minutes East 41.36 feet to a capped iron pin,
the place of beginning, containing 11.5560 acres, more or less,
IT BEING Lot No.1, South on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Office of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Both tracts totaling 26.30 acres more or less.
UNDER AND SUBJECT to a Metropolitan Edison Company Right-of-Way
over the southern part thereof as indicated and shown on said Plan.
TOGETHER WITH a 30 foot wide easement for the maintenance, repair and
replacement of the spring houses and water lines as shown on said Subdivision Plan
and as set forth in paragraph 2 of the Notes and Site Data and the Certification of
Title on said Subdivision Plan, except that in said Certification Lots #1 and #2
should be lots #1, North and #1, South and that lot #3 should be lot #2.
BEING the same premises which Harold A. Wise and Anna M. Wise, by their
deed dated April 18, 1986 and to be recorded simultaneously with this document
granted and conveyed unto Eugene J. Nelson, Jr. and Dawn M. Nelson, as recorded at
Deed Book V-31, page 359.
196230
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LEGAL DESCRIPTION OF PROPERTY FOR SHERIFF'S SALE
The real estate is described more fully as follows:
All those two certain tracts of land situate in South Middletown Township,
Cumberland County, Pennsylvania, bounded and described as follows:
Tract No.1, North:
BEGINNING at a railroad spike set 1.5 feet west of the centerline of the Red
Tank Road and on the northern line of the Philadelphia, Harrisburg and Pittsburgh
Branch of the Conrail Railroad; thence by the northern line of said railroad North 81
degrees 4 minutes West 461.03 feet to a capped iron pin; thence by a curve to the
right with a radius of 1910.08 feet an arc length of 406.16 feet to a capped iron pin;
thence by same North 68 degrees 53 minutes West 292.95 feet to a capped iron pin;
thence by land now or formerly of PPG Industries North 16 degrees 38 minutes 53
seconds East 741.37 feet to an existing concrete monument; thence by same South 74
degrees 49 minutes 37 seconds East 598.77 feet to an existing buried spike 1 foot
East of the center line of the said Red Tank Road; thence in said Road South 0
degrees 21 minutes 3 seconds East 21.28 feet to an existing railroad spike 1.5 feet
East of the center line of said road; thence by same South 0 degrees 34 minutes 14
seconds West 182.70 feet to a railroad spike along the west edge of the macadam of
said road; thence in said road South 23 degrees 21 minutes 4 seconds East 86.80 feet
to an existing buried spike 1.3 feet west of the center line of said road; thence by
same South 27 degrees 46 minutes 25 seconds East 114.72 feet to a p.k. nail in the
center line of said road; thence by same South 29 degrees 29 minutes 15 seconds East
257.91 feet to a p.k. nail in the center line of said road; thence by same South 30
degrees 5 minutes 46 seconds East 156.70 feet to a p.k. nail in the center of said road;
thence by same South 26 degrees 1 minute 46 seconds East 81.52 feet to a p.k. nail
set in the center of said road; thence by same South 8 degrees 9 minutes 43 seconds
East 17.50 feet to a railroad spike set 1.5 feet west ofthe center line of said road, the
place of beginning, containing 14.7449 acres, more or less, and being improved with a
2-112 story brick and frame house, frame barn, frame sheds, cribs and other
outbuildings, and
IT BEING Lot No.1, North on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Office of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Tract No.1, South:
BEGINNING at a capped iron pin on the southern line of the Philadelphia,
Harrisburg and Pittsburgh Branch of the Conrail Railroad, said capped iron pin being
438.12 feet South North 81 degrees 4 minutes West ofa railroad spike in the center
line of the Red Tank Road and said capped iron pin bcing the northwest corner of
land of Franklin S. Rhinchart, Jr. and wifc; thcncc along said Rhinehart land South
19 degrces 26 minutes 2 seconds West 609.59 feet to an iron pipe; thence by same
North 60 degrces 33 minutes 9 scconds Wcst 151.07 fcet to an iron pin; thcnce by
same North 42 degrces 40 minutes 10 scconds Wcst 101.73 feet to an iron pipe;
thence by same North 68 degrecs 17 minutes 18 seconds West 765.95 feet to an iron
pipc; thence by land now or formerly of J. Frank Wilson and wife North 17 degrees 14
minutes 39 seconds East 399.79 feet to an iron pin at old fencepost; thcnce by same
North 87 degrees 36 minutes 32 seconds East 207 feet to a capped iron pin on the
southern line of said railroad; thence by the southern line of said railroad South 68
degrees 53 minutes East 369.73 feet to a capped iron pin; thence by same on a curve
to the left with a radius of 1,970.08 feet an arc distance of 418.92 feet to a capped iron
pipe; thence by same South 81 degrees 4 minutes East 41.36 feet to a capped iron pin,
the place of beginning, containing 11.5560 acres, more or less,
IT BEING Lot No.1, South on the Final Subdivision Plan for Harold A. Wise
and Anna M. Wise, his wife, which said subdivision plan is recorded in the Office of
the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 48,
Page 83.
Both tracts totaling 26.30 acres more or less.
UNDER AND SUBJECT to a Metropolitan Edison Company Right-of-Way
over the southern part thereof as indicated and shown on said Plan.
TOGETHER WITH a 30 foot wide easement for the maintenance, repair and
replacement of the spring houses and water lines as shown on said Subdivision Plan
and as set forth in paragraph 2 of the Notes and Site Data and the Certification of
Title on said Subdivision Plan, except that in said Certification Lots #1 and #2
should be lots #1, North and #1, South and that lot #3 should be lot #2.
BEING the same premises which Harold A. Wise and Anna M. Wise, by their
deed dated April 18, 1986 and to be recorded simultaneously with this document
granted and conveyed unto Eugene J. Nelson, Jr. and Dawn M. Nelson, as recorded at
Deed Book V-31, page 359.
196230
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