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CATHERINE A. WILLIAMS,
plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
:
97 - 4/32 t.(.~{ T~
v.
TERRENCE I<. 0' MALLEY and SANDRA
L. O'MALLEY, husband and wife,
THOMPSON WOOD REAL ESTATE,
INC., t/a and d/b/a PRUDENTIAL
THOMPSON WOOD REAL ESTATE, and
STEPHEN THOMPSON,
:
.
.
.
.
CIVIL ACTION - LAW
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.
.
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JURY TRIAL DEMANDED
Defendants
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NOTICI!
You have been sued in court. If you wish to defend against the
claims set forth in the following pages, you must take action within
twenty (20) days after this complaint and notice are served, by
entering a written appearance personally or by attorney and filing in
writing with the court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case
may proceed without you and a judgment may be entered against you by
the court without further notice for any money claimed in the complaint
or for any other claim or relief requested by the plaintiff. You may
lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY COURT ADMINISTRATOR
CUMBERLAND COUNTY COURTHOUSE
Carlisle, Pennsylvania 17013
(717) 240-6200
(717) 697-0371
, ,I
By: 1!.fA U (
Kndrew C. Sheely, E e
Pa. 1.0. No. 62469
1 West Main Street -
Shiremanstown, PA 17011
(717) 737-8761
Attorney for Plaintiff
CATHERINE A. WILLIAMS,
Plaintiff
.
.
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
97 -If/32 ~ T~
TERRENCE K. 0' MALLEY and SANDRA
L. O'MALLEY, husband and wife,
THOMPSON WOOD REAL ESTATE,
INC., t/a and d/b/a PRUDENTIAL
THOMPSON WOOD REAL ESTATE, and,
STEPHEN THOMPSON,
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendants
.
.
COMPLAI1I'1'
Plaintiff, by and through her attorney, Andrew C. Sheely,
Esquire, hereby files this Complaint and respectfully submits the
following averments of fact and causes of action:
1. Plaintiff is Catherine A. Williams, an adult individual
who resides at 17 Bellview Drive, Marysville, Perry County,
Pennsylvania.
2. Defendants Terrence K. O'Malley and Sandra L. O'Malley
are husband and wife and adult individuals who presently reside
at 2217 canterbury Drive, Mechanicsburq, cumberland County,
Pennsylvania.
3. Defendant, Thompson Wood Real Estate, Inc., t/a and d/b/a
Prudential Thompson Wood Real Estate, is a Pennsylvania
Corporation with its offices at 3815 Market Street, Camp Hill,
CUmberland County, Pennsylvania 17011.
4. Defendant, Stephen Thompson, is an adult individual and
agent for Defendant, Thompson Wood Real Estate, Inc., t/a and
d/b/a as Prudential Thompson Wood Real Estate, at 3815 Market
Street, Camp Hill, cumberland County, Pennsylvania 17011.
5. On or about November 7, 1996, plaintiff, Catherine A.
Williams, entered into an Agreement for the Sale of Real Estate
with Defendants Terrence K. O'Malley and Sandra L. O'Malley. A
copy of the Agreement of Sale is attached hereto as Exhibit "A".
6. The Agreement for the Sale of Real Estate involved the
sale of a residential property owned by Defendants Terrence K.
O'Malley and Sandra L. O'Malley located at 216 westview Drive,
Mechanicsburg, Monroe Township, CUmberland County, Pennsylvania,
and was signed by Defendant Stephen Thompson as the purported
equitable owner.
7. Settlement on the property was scheduled to occur at 4:00
p.m. on December 12, 1996.
8. In addition to the Agreement for the Sale of Real Estate,
the parties executed a Wood Infestation Addendum, a Radon
Disclosure Addendum, a Private Water/On Site Sewage Addendum and
a Home Inspection Addendum.
9. Defendants Terrence K. O'Malley and Sandra L. O'Malley
further prepared a written Seller's Property Disclosure
statement, a copy of which is attached hereto as Exhibit "B".
10. At all relevant times herein, Defendant Stephen
Thompson, individually and as agent for Defendant Thompson Wood
Real Estate, Inc., t/a and d/b/a prudential Thompson Wood Real
Estate, and Defendant Thompson Wood Real Estate, Inc., t/a and
d/b/a prudential Thompson Wood Real Estate, acted as agents on
behalf of Defendants Terrence K. O'Malley and Sandra L. O'Malley.
11. On or about November 9, 1996, Defendant stephen
2
. .
Thompson, individually and as agent for Defendant Thompson Wood
Real Estate, Inc., t/a and d/b/a Prudential Thompson Wood Real
Estate, and Defendant Thompson Wood Real Estate, Inc., t/a and
d/b/a Prudential Thompson Wood Real Estate, signed and executed a
Private Water/On-site Sewage Addendum which required that
Defendants Terrence K. O'Malley and Sandra L. O'Malley perform
and pay for an inspection of the on-site sewage system on the
property. A copy of the addendum is attached hereto as Exhibit
"Cn.
12. The Private water/On-site Sewage Addendum further
required that either Defendants Terrence K. O'Malley and Sandra
L. O'Malley or Defendants, Stephen Thompson, individually and as
agent for Defendant Thompson Wood Real Estate, Inc., t/a and
d/b/a Prudential Thompson Wood Real Estate, and Defendant
Thompson Wood Real Estate, Inc., t/a and d/b/a Prudential
Thompson Wood Real Estate, advise and provide Plaintiff.
Catherine A. Williams, with a report within five (5) days if the
required inspection revealed defects in the system.
13. On or about November 29, 1996, subsequent to the
November 9, 1996 Private Water/On-site Sewage Addendum,
Plaintiff, Catherine A. Williams, and Defendants Terrence K.
O'Malley and Sandra L. O'Malley, Stephen Thompson, individually
and as agent for Defendant Thompson Wood Real Estate, Inc., t/a
and d/b/a Prudential Thompson Wood Real Estate, and Defendant
Thompson Wood Real Eatate, Inc., t/a and d/b/a Prudential
Thompson Wood Real Estate, eiqned another Addendum to Agr....nt
3
of Sale indicating that a septic test would be performed by a
reputable company of Buyer's choice. A copy of the Addendum is
attached hereto as Exhibit "D".
14. On or about December 10, 1996, Plaintiff contacted
oillsburg Septic Service and its agent F. Eugene Livingston to
determine the status of the septic system.
15. On or about December 10, 1996, Plaintiff was orally
advised by F. Eugene Livingston that a recent inspection revealed
that the tank was overflowing, the drain pipes were not
functioning properly and that he could not guarantee that the
septic system would work properly for six (6) months.
16. A written report subsequently submitted to Plaintiff
also reported substantial defects in the system, including an
overflowing tank, clogged drain lines and an inoperable system. A
copy of the written report is attached hereto as Exhibit "E".
17. Defendants Terrence K. O'Malley and Sandra L. O'Malley
advised in their written Seller's Property Disclosure Statement
that the on lot septic system required pumping every three (3)
years and that such septic system was pumped on January 1, 1996,
less than one year from the scheduled date of settlement.
18. Paragraph 9 (h) of the Seller's Property Disclosure
Statement clearly and unequivocally states that Defendants
Terrence K. O'Malley and Sandra L. O'Malley were not aware of any
problems with the on-site septic system.
19. On or about December 22, 1995, Defendanta Terrence X.
O'Malley and Sandra L. O'Malley confirmed and were advised in a
4
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written report from the Monroe Township Sewage Enforcement
Officer that Defendant O'Ma11eys should conserve water, replace
an outlet baffle and repair a leak in the system. A copy of the
report is attached hereto as Exhibit "E".
20. Defendants never advised Plaintiff of this written
report directed to Defendant O'Ma11eys, or of any other
inaccurate information as set forth on the Seller's Property
Disclosure Statement from Defendants prior to the date of
settlement as required by 68 P.S. 1028.
21. In reliance upon the statements and actions of
Defendants and in preparation for settlement on December 12,
1996, Plaintiff catherine A. Williams paid an amount of $731.23
for inspections of the residence prior to settlement.
22. In reliance upon the statements and actions of
Defendants and in preparation for settlement on December 12,
1996, Plaintiff Catherine A. Williams paid an amount of $25.00
for inspection of the chimney of the residence prior to
settlement.
23. In reliance upon the statements and actions of
Defendants and in preparation for settlement on December 12,
1996, Plaintiff Catherine A. Williams paid an amount of $35.00
for inspection of a water softener of the residence prior to
settle.ent.
24. In reliance upon the statements and actions of
Defendants and in preparation for settlement on December 12,
1996, Plaintiff Catherine A. Williams paid an amount of $737.00
5
for preparation and moving expenses prior to settlement.
25. plaintiff, Catherine A. Williams, as a condition of the
Agreement for the Sale of Real Estate, deposited an amount of
three thousand dollars ($3,000.00) with Defendants stephen
Thompson, individually and as agent for Defendant Thompson Wood
Real Estate, Inc., t/a and d/b/a Prudential Thompson Wood Real
Estate, and Defendant Thompson Wood Real Estate, Inc., t/a and
d/b/a prudential Thompson Wood Real Estate. A copy of the deposit
check is attached hereto as Exhibit "G".
26. Settlement did not occur on December 12, 1996 and
Defendants failed to return the initial deposit of $3,000.00 to
Plaintiff in accordance with the Agreement for Sale of Real
Estate and Addendums, notwithstanding repeated demands by
Plaintiff to return such sums.
COUNT I - FRAUD AND PUNITIVE DAMAGBS PURSUANT TO ,. P.S. 1032
Plaintiff Catherine A. Williams v.
Terrence K. O'Mallev and Sandra L. O'Mallev
27. Paragraphs 1 - 26 are incorporated by reference herein
as if set forth at length.
28. Prior to completing the Seller's Property Disclosure
statement, Defendants Terrence K. O'Malley and Sandra L. O'Malley
knew and were aware of substantial defects in the septic system
at their residence located at 216 westview Drive, Mechanicsburq.
Monroe Township, CUmberland county, Pennsylvania.
29. Prior to the date of scheduled settlement, Defendants
Terrence K. O'Malley and Sandra L. O'Malley advised Plaintiff in
6
a written disclosure statement and represented that they were not
aware of any problems with the septic system on the property with
the intent to induce Plaintiff to purchase their real property
with such hidden defects and problems.
30. Prior to the date of scheduled settlement, Defendants
Terrence K. O'Malley and Sandra L. O'Malley made material
misrepresentations to Plaintiff with actual knowledge of their
misleading nature, deceptive content and falsity at the time they
were made or in reckless disregard of the truth, all constituting
outrageous conduct by failing to disclose material defects as
required by law.
31. Prior to the date of scheduled settlement, Defendants
Terrence K. O'Malley and Sandra L. O'Malley made willful and
wanton written statements in complete disregard of the actual
conditions of the septic system located at 216 Westview Drive,
Monroe Township, CUmberland County, Pennsylvania.
32. Plaintiff relied and made substantial expenditures of
funds upon the material misrepresentations and willful, wanton
and knowing written falsifications made by Defendants Terrence K.
O'Malley and Sandra L. O'Malley concerning the septic field prior
to purchasing the residence.
33. Defendants Terrence K. O'Malley and Sandra L. O'Malley
had actual knowledge of the defective conditions of the septic
system and failed to disclose conditions which were known and
dangerous to Plaintiff, all to the detriment of Plaintiff.
34. Defendants Terrence K. O'Malley and Sandra L. O'Malley
7
are liable for the fraudulent representations and willful
misrepresentations made to Plaintiff and relied upon by Plaintiff
who has been damaged in an amount in excess of $5,000.00.
WHEREFORE, Plaintiff demands judgement against Defendants
Terrence K. O'Malley and Sandra L. O'Malley in an amount of in
excess of the limits of compulsory arbitration, plus interest,
court costs attorney fees, together with punitive damages, and
any other relief deemed necessary and proper by the Court.
COUNT II - BREACH OP CONTRACT
Plaintiff Catherine A. Williams v.
Terrence K. O'Mallev and sandra L. O'Mallev
35. Paragraphs 1 - 34 are incorporated herein by reference
as if set forth at length.
36. Pursuant to the Agreement of Sale for Real Estate and
Private Water/On-Site sewage Addendum to the Agreement of Sale,
Plaintiff is entitled to the return of her deposit together with
other expenses incurred as a result of the incidents occurring
prior to settlement.
37. Defendants Terrence K. O'Malley and Sandra L. O'Malley
breached paragraph 7 of the Agreement for the Sale of Real Estate
(Exhibit A), the Private water/On-Site Sewage Addendum (Exhibit
C) and the Addendum to Agreement of Sale (Exhibit D) by failing
to truthfully disclose the condition of the septic system and by
failing to return the deposit money to Plaintiff upon her
request.
8
38. Plaintiff was the intended beneficiary of the septic
system certification pursuant to the Agreement of Sale for Real
Estate and the Addendums and Defendants failure to provide all
required information as required by law constitutes a breach of
the terms and conditions of the above-stated documents.
39. As a result of breach of the Agreement for the Sale of
Real Estate and the Addendums, Plaintiff is entitled to the
return of her deposit of $3,000.00.
40. As a result of breach of the Agreement for the Sale of
Real Estate and the Addendums, Plaintiff is entitled to other
damages exceeding the amount of $1,52B.23.
WHEREFORE, Plaintiff demands judgement against Defendants
Terrence X. O'Malley and Sandra L. O'Malley in an amount of
$4,528.23, plus interest, court costs, attorney fees and any
other relief deemed necessary and proper.
COUNT III - BRBACH OF CONTRACT
Plaintiff v. Defendant Thompson Wood Real Estate. Inc.. t/a and
d/b/a prudential Thomoson Wood Real Estate
41. Paragraphs 1 - 40 are incorporated herein by reference
as if set forth at length.
42. Defendant Stephen Thompson, agent for Defendant Thompson
Wood Real Estate, Inc., t/a and d/b/a Prudential Thompson Wood
Real Estate, executed the Agreement of Sale for Real Estate and
Addendums at all times relevant hereto as a purported equitable
owner of the property subject for sale at 216 Westview Drive,
Mechanicsburg, Pennsylvania.
9
43. Pursuant to the Agreement for Sale of Real Estate
(Exhibit A), the Private water/On-Site sewage Addendum (Exhibit
C) and the Addendum to Agreement of Sale (Exhibit D), Defendant
Thompson Wood Real Estate, Inc., t/a and d/b/a prudential
Thompson Wood Real Estate, breached the Agreement of Sale and
Addendums by failing to truthfully disclose the condition of the
septic system and by failing to return the deposit money to
Plaintiff upon her request.
44. Plaintiff was the intended beneficiary of the septic
system certification pursuant to the Agreement for the Sale of
Real Estate and Addendums.
45. As a result of breach of the Agreement for the Sale of
Real Estate and the Addendum of Private water/On-site Sewage
Addendum, Plaintiff is entitled to the return of her deposit of
$3,000.00, together with her other expenses and costs of this
suit.
46. As a result of breach of the Agreement for the Sale of
Real Estate and attached addendums, Plaintiff is entitled to
other damages exceeding the amount of $1,528.23.
WHEREFORE, plaintiff demands judgement against Defendant
Thompson Wood Real Estate, Inc., t/a and d/b/a Prudential
Thompson Wood Real Estate, in an amount of $4,293.00, plus
interest, attorney fees and court costs and any other relief
deemed necessary and proper.
comrr V - BRUCH OF COH'l'RAC'l'
plaintiff v. Defendant Steohen Thomoson
10
.
.
47. Paragraphs 1 - 46 are incorporated herein by reference
as if set forth at length.
48. Defendant stephen Thompson executed the Agreement of
Sale for Real Estate (Exhibit A) and the Private water/on-site
Sewage Addendum (Exhibit C) as the purported owner of the real
estate located at 216 westview Drive, Mechanicsburg,
Pennsylvania.
49. Pursuant to the Agreement for Sale of Real Estate
(Exhibit A), the Private Water/on-Site Sewage Addendum (Exhibit
C) and the Addendum to Agreement of Sale (Exhibit D), Defendant
Stephen Thompson breached the Agreement of Sale by failing to
truthfully disclose the condition of the septic system and by
failing to return the deposit money to Plaintiff upon her
request.
50. As a result of breach of the Agreement for the Sale of
Real Estate and the Addendum of Private water/on-Site Sewage
Addendum, Plaintiff is entitled to the return of her deposit of
$3,000.00.
51. As a result of breach of the Agreement for the Sale of
Real Estate and the Private Water/On-Site Sewage Addendum,
Plaintiff is entitled to other damages exceeding the amount of
$1,528.23.
WHEREFORE, Plaintiff demands judgement against Defendant
Stephen Thompson, 1n an amount of $4,293.00, plus interest,
attorney f... and court costs and any other relief deemed
11
necessary and proper.
COUNT VI - UHPAIR TRADB PRACTICBS AND CONSUMBR PROTECTION LAW
Plaintiff Catherine A. Williams v.
Terrence K. O'Mallev and Sandra L. O'Mallev
52. Paragraphs 1 - 51 are incorporated herein as if set
forth at length.
53. The sale of real estate and the offering of services
primarily for personal, family and household purposes and the
sale of real estate is governed by the Unfair Trade Practices and
Consumer Protection Law, 73 P.S. Section 201-1 et sea.
54. Defendants Terrence K. O'Malley and Sandra L. O'Malley
engaged in unfair and deceptive trade practices in the following
manners:
i. Representing that the septic system was in
good working condition when they knew that the system
had a history of problems documented by the Monroe
Township Sewage Enforcement officer: and
ii. Representing that the septic system and
drain fields were in good working condition when they
knew they had been advised within one year to make
various repairs and corrections to the system, and to
conserve water: and
iii. Failing to advise their agents or Plaintiff
of the prior problems associated with the septic system
and drain fields on the property in question and
failing to advise their agents or Plaintiff of known
defects in the septic system, drain fields and related
features prior to settlement while representing that
the conditions of the septic system were in good
condition: and
iv. Concealing hidden and known defects concerning the
.eptic syst.. to their agents or Plaintiff who was relying
upon their representation. when purchasing the residence:
a~
12
v. Providing a written disclosure to Plaintiff advising
that the septic system requires pumping every three (3)
years when they had pumped the system within one (1) year of
the septic inspection which required another pumping; and
vi. Failing to provide a written report to Plaintiff in
accordance with all Agreements of Sale for Real Estate and
Addendums within the time period prescribed therein so as to
allow Plaintiff to be reasonably informed of the conditions
of the septic system within a reasonable period prior to
settlement; and
vii. Signing documents purporting to be the owners of
real estate when they were not the owners of the real estate
which was subject to this sale.
55. As a result of the aforesaid statements of fact and
actions, Defendants Terrence K. O'Malley and Sandra L. O'Malley
violated the Unfair Trade Practices and Consumer Protection Law,
73 P.S. Section 201-1 et sea.
WHEREFORE, Plaintiff demands judgment against Defendants
Terrence K. O'Malley and Sandra L. O'Malley in excess of
$4,528.33, plus interest, attorney fees, court costs, an amount
determined by this Honorable Court which in its discretion may
award a judgment three (3) times the times the amount of the
award which fairly represents the losses sustained by Plaintiff
and any additional relief an deemed necessary and proper pursuant
to 73 P.S. Section 201.9.2 et sea.
COUll'1' VII - UHPAlR "RADII PRACTICII8 AIm CON8UKIIR PRO"IICTION LaW
Plaintiff v. Defendant Thomnson Wood Real Estate. Inc.. t/a and
d/b/a Prudential Thomnson Wood Real Estate
56. Paragraphs 1 - 55 are incorporated herein as if .et
forth at length.
13
57. Defendants Thompson Wood Real Estate, Inc., t/a and
d/b/a Prudential Thompson Wood Real Estate, engaged in unfair and
deceptive trade practices in the following manners:
i. Failing to advise Plaintiff of known
defects in the septic system, drain fields and related
features prior to settlement while representing that
the conditions of the septic system were in good
condition: and
ii. Failing to provide Plaintiff with reports
submitted to Defendants or other statements made to
them which had been forwarded to Defendants prior to
settlement concerning the condition of the septic
system and field in accordance with the Private
Water/On-Site Sewage Addendum:
iii. Failing to advise Plaintiff of known prior
problems associated with the septic system and drain
fields on the property in question: and
iv. Concealing hidden and known defects concerning the
septic system to Plaintiff who was relying upon Defendant's
representations in purchasing the residence: and
v. Inducing Plaintiff to purchase the real property and
residence when Defendants had knowledge of the actual
condition of the septic system and by materially
misrepresenting the actual condition of the complete septic
system prior to settlement: and
vi. Signing the Agreement for the Sale of Real Estate
as equitable owner when they were not actually the equitable
owner of the real estate: and
vii. Causing the likelihood of confusion or
misunderstanding as to the relationship between Defendants
Thompson Wood Real Estate, Inc., t/a and d/b/a Prudential
Thompson Wood Real Estate, and Stephen Thompson,
individually, by purporting to be the listing agent and also
the equitable owner on all relevant documents presented to
Plaintiff.
58. As a result of the aforesaid statements of fact and
actions, Defendants Thompson Wood Real Estate, Inc., t/a and
14
d/b/a Prudential Thompson Wood Real Estate, violated the Unfair
Trade Practices and Consumer Protection Law, 73 P.S. Section 201-
1 et sea.
WHEREFORE, Plaintiff demands judqment aqainst Defendants,
Thompson Wood Real Estate, Inc., t/a and d/b/a Prudential
Thompson Wood Real Estate, in excess of $4,529.33, plus interest,
court costs and attorney fees, an amount determined by this
Honorable Court which in its discretion may award a judqment
three (3) times the amount of the award which fairly represents
the losses sustained by Plaintiff and any additional relief as
deemed necessary and proper pursuant to 73 P.S. Section 201-9.2
et sea.
COtnl'l' VIII - UNPAIR TRADB PRACTICBS AND CONSUMBR PROTECTION LAW
Plaintiff v. SteDhen ThomDson
59. Paraqraphs 1 - 59 are incorporated herein as if set
forth at 1enqth.
60. Defendant Stephen Thompson enqaqed in unfair and
deceptive trade practices in the followinq manners:
i. Failinq to advise Plaintiff of known
defects in the septic system, drain fields and related
features prior to settlement while representinq that
the conditions of the septic system were in qood
condition: and
ii. Failinq to provide Plaintiff with reports
submitted to him or his principles or other statements
made to him or his principles concerninq the condition
of the septic Bystem and field in accordance with the
Private Water/On-Site Sewaqe Addendum: and
iii. Failinq to advise Plaintiff of known prior
problems associated with the septic system and drain
15
fields on the property in question; and
iv. Concealing hidden and known defects concerning the
septic system to Plaintiff who was relying upon Defendants's
representations in purchasing the residence; and
v. Inducing Plaintiff to purchase the real property and
residence when Defendant had or should have had actual
knowledge of the condition of the septic system and by
materially misrepresenting the actual condition of the
complete septic system prior to settlement; and
vi. Signing the Agreement for the Sale of Real Estate
as equitable owner when they were not actually the equitable
owner of the real estate; and
vii. Causing the likelihood of confusion or
misunderstanding as to the relationship between Defendants
Thompson Wood Real Estate, Inc., t/a and d/b/a Prudential
Thompson Wood Real Estate, and Stephen Thompson,
individually, by purporting to be the listing agent and also
the equitable owner of all relevant documents presented to
Plaintiff.
61. As a result of the aforesaid statements of fact and
actions, Defendant Stephen Thompson violated the Unfair Trade
Practices and Consumer Protection Law, 73 P.S. Section 201-1 ~
~
WHEREFORE, Plaintiff demands judgment against Defendant,
Stephen Thompson, in excess of $4,528.33 plus interest and court
costs, an amount determined by this Honorable Court which in its
discretion may award a judgment three times the times the amount
of the award which fairly represents the losses sustained by
Plaintiff and any additional relief as deemed necessary and
proper pursuant to 73 P.S. Section 201-9.2 et sea.
COUNT IXI VIOLATION OF REAL ESTATE DISCLOSURE ACT 18 P.S. 1102t
Plaintiff v. Terrence K. O'Malley and Sandra L. O'Malley
16
62. Paragraphs 1 - 61 are incorporated herein as if set
forth at length.
63. All sellers of real estate are under an affirmative
duty to not make any representations which he or his agent know
or have reason to know are false, deceptive or misleading and
shall not fail to disclose a known material defect.
64. Defendants failed to amend the existing property
disclosures statement or provide an amended disclosure at any
time prior to settlement.
65. As a result of the aforesaid statements of fact and
actions, Defendants Terrence K. O'Malley and Sandra L. O'Malley
violated the Real Estate Disclosure Act, 68 P.S. 11021 et sea.
WHEREFORE, Plaintiff demands judgement against Defendants
Terrence K. O'Malley and Sandra L. O'Malley in an amount of in
excess of the limits of compulsory arbitration, plus interest,
court costs attorney fees, together with punitive damages, and
any other relief deemed necessary and proper by the Court as
authorized by the Real Estate Disclosure Act.
COUNT XI VIOLATION OP RIAL ESTATE DISCLOSURE ACT &. P.S. 1102'
Plaintiff v. Defendant ThomDson Wood Real Estate. Inc.. t/a and
d/b/a Prudential ThomDson Wood Real Estate
66. Paragraphs 1 - 65 are incorporated herein as if set
forth at length.
67. All sellers of real estate are under an affirmative
duty to not make any representations which he or his agent know
or have reason to know are false. deceptive or misleading and
17
shall not fail to disclose a known material defect.
68. Defendant Thompson Wood Real Estate, Inc., t/a and d/b/a
Prudential Thompson Wood Real Estate, by and through their agent
Stephen Thompson, failed to amend the existing property
disclosures statement or provide an amended disclosure at any
time prior to settlement notwithstanding the fact the septic
system had subsequent defects discovered after presentation of
the original disclosure statement.
69. As a result of the aforesaid statements of fact and
actions, Defendant Thompson Wood Real Estate, Inc., tla and d/b/a
Prudential Thompson Wood Real Estate, violated the Real Estate
Disclosure Act, 68 P.S. 11021 et sea.
WHEREFORE, Plaintiff demands judgement against Defendant
Thompson Wood Real Estate, Inc., t/a and d/b/a Prudential
Thompson Wood Real Estate, in an amount of in excess of the
limits of compulsory arbitration, plus interest, court costs
attorney fees, together with punitive damages, and any other
relief deemed necessary and proper by the Court as authorized by
tho Real Estate Disclosure Act.
COURT XII VIOLA~IOH OP REAL E8~ATB DISCLOSURe ACT 6. P.S. 11029
Plaintiff v. Defendant SteDhen ThomDson
70. Paragraphs 1 - 69 are incorporated herein as if set
forth at length.
71. All sellers of real estate are under an affirmative
duty to not make any representations which he or hi. agent know
or have reason to know are false, deceptive or misleading and
18
shall not fail to disclose a known material defect.
72. Defendant stephen Thompson, purported equitable owner,
failed to amend the existing property disclosures statement or
provide an amended disclosure at any time prior to settlement
notwithstanding the fact the septic system had subsequent defects
discovered after presentation of the original disclosure
statement.
73. As a result of the aforesaid statements of fact and
actions, Defendant stephen Thompson violated the Real Estate
Disclosure Act, 68 P.S. Sl021 et sea.
WHEREFORE, Plaintiff demands judgement against Defendant
Stephen Thompson, in an amount of in excess of the limits of
compulsory arbitration, plus interest, court costs attorney fees,
together with punitive damages, and any other relief deemed
necessary and proper by the Court as authorized by the Real
Estate Disclosure Act.
Respectfully submitted,
Date: July ,.."'t, 1997
/) "
f;nj:.,. (.
Andrew C. Sheely, Es
1.0. No. 62469
1 West Main Street
Shiremanstown, Pennsylvania
(717) 737 - 8761
Attorney for Plaintiff
19
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2. ,aOrERTY, Seiter bertb, 'Irea 10 ItU and conve, 10 Bu)'Cr, who web, I.,cello I"Ifthuc: ALL TlI^T CERTAIN lol 01 piKe
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I verify that the statements made in this Complaint are true and
correct. I understand that unsworn statements herein are made subject
to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn
falsification to authorities.
.
'/J..aAv</
DATE: JUli/! ' 1997
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CATHERINE A. WILLIAM$,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBEHLAND COUNTY, PENNSYLVANIA
v.
NO. 97-4132 CIVIL TERM
TERRENCE K. O'MALLEY and
SANDRA L. O'MALLEY, husband
and wife, THOMPSON WOOD REAL
ESTATE, INC., t/a and d/b/a
PRUDENTIAL THOMPSON WOOD REAL
ESTATE, and STEPHEN THOMPSON,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
TO PLAINTIFF NAMED HEREIN:
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 Answer with New Matter 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 wi thout
further notice for any money claimed in the Amended Answer with
New Matter or for any other claim or relief requested by the
Defendant. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR
Cumberland County Courthouse, 4' Floor
I Courthouse Square
Carlisle, Pennsylvania 17013-3381
17}7) 240-6200
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-4132 CIVIL TERM
CATHERINE A. WILLIAMS,
Plaintiff
TERRENCE K. O'MALLEY and
SANDRA L. O'MALLEY, husband
and wife, THOMPSON WOOD REAL
ESTATE, INC., t/a and d/b/a
PRUDENTIAL THOMPSON WOOD REAL
ESTATE, and STEPHEN THOMPSON,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ANSWER AND NEW M1\TTER AND COUNTERCLAIM
Defendants Terrence K. O'Malley and Sandra L. O'Malley, by
and through their attorney, R. Mark Thomas, Esquire, hereby file
this Answer, New Matter and Counterclaim to the Plaintiff's
Complaint:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
S. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Denied. The private water/on-site sewage addendum
required the Defendants, Terrence K. O'Malley and Sandra L.
O'Malley, to advise the Plaintiff in writing if the Seller was
going to make repairs at Seller's expense for any defects found
in the system. The addendum did not require Sellers to advise
Plaintiff in writing of any defects, but rather whether Sellers
would repair any defects at Seller's expense. By way of further
answer, the inspection was performed on December 4, 1996, and
minor repairs were made to the system at the expense of the
Sellers. Written notice of the minor defects and repairs were
obtained by the Seller on December 9, 1996 and promptly provided
to Plaintiff.
13. Admitted.
14. Admitted in part, denied in part. It is admitted that
the Plaintiff contacted Dillsburg Septic Service and its agent F.
Eugene Li vingston, but Defendants are without sufficient
information to either affirm or deny the purpose of Plaintiff's
contacting Dillsburg Septic Service or the date on which said
contact occurred, and therefore that portion of the allegation is
denied and strict proof thereof demanded at time of trial.
15. Denied. Defendants are without sufficient information
to either affirm or deny what was told to the Plaintiff by F.
Eugene Livingston and therefore same is denied and strict proof
thereof demanded at time of trial.
16. Denied. It is denied that the written report contained
information as to substantial defects in the system. By way of
further answer it is averred that any defects in the system were
minor and repairs were made at the expense of the Defendants.
And further, the system was certified as being operational and
properly working.
17. Admi t ted. By way of further answer, the township in
which the property is located required the pumping of the septic
system tank every three (3) years and that was the schedule
followed by the Defendants. Further, the last of these pumpings
occurred on or about January 1, 1996.
18. Admitted. By way of further answer the Defendants
state that they have never experienced any problems with the
septic system.
19. Admitted in part, denied in part. It is admitted that
when the three-year inspection by the township occurred on or
about December 22, 1995 the Defendants were advised that they
should conserve water, replace an outlet baffle and repair a leak
in the system. However, it is denied that the Defendants ever
experienced any problems with the septic system and that the
repairs recommended by the township were major repairs. In
addition, the repairs were made at the request of the township,
not because Defendants had experienced problems with the system.
20. Admitted. By way of further answer, the Defendants
were not aware of any problems with the septic system other than
what was told to them by the township and those recommended
repairs were made by the Defendants. The Defendants believed the
problems to be minor and since the repairs were made at the time
of inspection and at request of the township the Defendants did
not consider that to be what was referred to in the Disclosure
Statement.
21. Denied. Defendants are without sufficient information
or knowledge to either affirm or deny this allegation and
therefore same is denied and strict proof thereof demanded at
time of trial.
22. Denied. Defendants are without sufficient information
or knowledge to either affirm or deny this allegation and
therefore same is denied and strict proof thereof demanded at
time of trial.
23. Denied. Defendants are without sufficient information
or knowledge to either affirm or deny this allegation and
therefore same is denied and strict proof thereof demanded at
time of trial.
24. Denied. Defendants are without sufficient information
or knowledqe to either affirm or deny this allegation and
therefore same is denied and strict proof ther~of demanded at
time of trial.
25. Admitted.
26. Admitted in part, denied in part. It is admitted that
settlement did not occur on December 12, 1996, however, the
Defendants did appear for settlement and were ready, willing and
able to tender performance at the time set for settlement. It is
denied that the Buyer is entitled to the return of the three
thousand dollars ($3,000.00) since the Plaintiff breached the
Agreement of Sale.
COUNT I - FRAUD AND PUNITIVE DAMAGES PURSUANT TO 68 P.S. 1032
ANSWER TO PLAINTIFF'S COUNT I
27. No answer required.
28. Denied. It is denied that Defendants Terrence K.
O'Malley and Sandra L. O'Malley were aware of substantial defects
in the septic system at their residence. By way of further
answer it is denied that there were ever any substantial defects
in the septic system at their residence.
29. Admitted in part, denied in part. It is admitted that
the written Disclosure Statement indicates that there were no
problems with the septic system. It is denied that the
Defendants made any knowing misrepresentations concerning the
condition of the septic system with the intent to induce the
Plaintiff to purchase their property with hidden defects and
problems. By way of further answer it is denied that there were
any serious and danqerous defects in the septic system.
WHEREFORE,
enter judgment
Plaintiff.
Defendants pray that this Honorable Court will
in favor of the Defendants and against the
COUNT II - BREACH OF CONTRACT
DEFENDANTS' ANSWER TO PLAINTIFF'S COUNT II
35. No answer required.
36. Denied. This allegation is a conclusion of law to
which no responsive pleading is required and therefore same is
denied.
37. Denied. This allegation is a conclusion of law to
which no responsive pleading is required and therefore same is
denied. By way of further answer, Defendants deny that they were
not truthful in their disclosures and deny that Plaintiff is
entitled to the return of any deposit monies.
38. Denied. This allegation is a conclusion of law to
which no responsive pleading is required and therefore same is
denied. By way of further answer, Defendants did provide all
required information to the Plaintiff as set forth in the
Agreement of Sale and all addendums thereto.
39. Denied. This allegation is a conclusion of law to which
no responsive pleading is required and therefore same is denied.
40. Denied. This allegation is a conclusion of law to which
no responsive pleading is required and therefore same is denied.
By way of further answer and as more fully set forth in the New
Matter and Counterclaim it is denied that Plaintiff is entitled
to recover any damages in this matter.
WHEREFORE, Defendants pray this Honorable Court will enter
judgment in favor of the Defendants on Count II of the
Plaintiff's Complaint.
COUNT III - BREACH OF CONTRACT
Paragraphs 41 through 46 involve allegations concerning a
party other than this Defendant and therefore this Defendant is
not required to answer these paragraphs.
COUNT V - BREACH OF CONTRACT
Paragraphs 47 through 51 involve allegations concerning a
party other than this Defendant and therefore this Defendant is
not required to answer these paragraphs.
COUNT VI - UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW
52. No answer required.
53. Denied. This allegation is a conclusion of law to
which no responsive pleading is required and therefore same is
denied.
54. Denied. It is denied that Defendants Terrence K.
O'Malley and Sandra L. O'Malley engaged in unfair and deceptive
trade practices. By way of further answer the Complaint is
answered as follows:
i. It is denied that Defendants' septic system
had a history of problems and it is denied that
Defendants in any way misrepresented to Plaintiff the
condition of the septic system; and
ii. It is denied that Defendants made any
misrepresentations concerning the septic system and the
drain fields. By way of further answer the septic
system and drain fields were in good worKing condition
when the Defendants tendered performance under the
Agreement of Sale.
iii. It is denied that there were any known
defects in the septic systems, drain fields and related
features prior to settlement other than what was
revealed following the inspection that was performed on
December 4, 1996. Again it is denied that any defects
established due to the inspection of December 4, 1996
were of a serious and dangerous nature and it is denied
that these defects warrant the Plaintiff breaching the
Agreement of Sale; and
iv. Denied. Defendants deny that they concealed
or hid any known defects concerning the septic system
from their agents or Plaintiff.
v. Denied. It is denied that the representation
that the septic system needed pumped every three (3)
years was a unfair or deceptive trade practice since
that is in fact the history of the septic system.
vi. Denied. It is denied that the Defendants
were required to provide a written report to Plaintiff,
but rather the Defendants were to advise Plaintiff
whether they intended to pay for any repairs to the
system and in fact the Defendants did pay for repairs
to the system; and
vii. Denied. The Defendants were in fact the
owners of the real estate which was the subject to this
sale.
55. Denied. This allegation is a conclusion of law to
which no responsive pleading is required and therefore same is
denied.
WHEREFORE, Defendants pray that judgment would be entered in
their favor and against the Plaintiff on this Count.
COUNT VII - UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW
Paragraphs 56 through 58 are allegations against a party
other than this Defendant and therefore this Defendant is not
required to provide answers thereto.
COUNT VIII - UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW
Paragraphs 59 through 61 are allegations Aqainst a party
other than this Defendant and therefore this Defendant is not
required to prOVide answers thereto.
COUNT IX - VIOLATION OF REAL ESTATE DISCLOSURE ACT 68 P.S. 51029
62. No answer required.
63. Denied. This allegation is a conclusion of law to
which no responsive pleading is required and therefore same is
denied. To thE extent that this allegation is not construed as a
conclusion of law the Defendants deny that they knowingly made
any false representations concerning a material defect in their
property.
64. Admitted. By way of further answer, the Plaintiff at
no time requested an amended Property Disclosure Statement.
65. Denied. This allegation is a conclusion of law to
which no responsive pleading is required and therefore same is
denied.
WHEREFORE, Defendants pray this Honorable Court will enter
judgment in favor of the Defendants and against Plaintiff on this
Count.
COUNT X - VIOLATION OF REAL ESTATE DISCLOSURE ACT 68 P.S. 51029
This Count is a claim against a party other than this
Defendant and therefore this Defendant is not required to provide
answers to Paragraphs 66 through 69.
COUNT XI - VIOLATION OF REAL ESTATE DISCLOSURE ACT 68 P.S. 51029
This Count is a claim against a party other than this
Defendant and therefore this Defendant is not required to provide
answers to Pafaqraphs 70 through 73.
NEW M1\TTER
74. Paragraph 1 through 73 are incorporated herein as if
set forth at length.
75. The Agreement for the sale and purchase of the real
estate in question called for settlement to be made on or before
December 12, 1996.
75. An addendum to the Agreement of Sale was executed by
the Plaintiff and Defendants at the request of the Plaintiff on
December 2, 1996, wl:ich extended the settlement date from the
December 12, 1996 to December 16, 1996.
76. The Addendum to Agreement of Sale dated December 2,
1996 stated that the septic tests to be performed at the
Defendants' residence would be performed by a reputable company
of Buyer's choice.
77. Plaintiff, as Buyer, selected Dillsburg Septic'
Excavating to do the septic inspection.
78. On December 4, 1996 the septic system was inspected by
Dillsburg Septic' Excavating.
79. Dillsburg Septic' Excavating determined at the time of
inspection that the drain lines were clogged and per agreement
with the Defendants the drain lines were cleaned and treated and
Dillsburg Septic , Excavating stated that they felt the system
should work fine.
80. Defendant employed Dillsburg Septic & Excavating
services to clean and treat the lines which work was completed on
December 7, 1996 at a cost of $505.00 which was paid by the
Defendants.
81. Dillsburg Septic & Excavating did provide an inspection
and report of the system which indicated that the system should
work fine and this report was dated December 9, 1996.
82. A copy of this report was provided to the Plaintiff.
83. On December 11, 1996, sometime after 3:00 p.m., the
Plaintiff notified the Defendants that she would not appear for
settlement and in fact she did not appear for settlement.
84. On December 12, 1996, the date that had been set for
settlement, the Defendants appeared at the time and place set for
settlement and were ready, willing and able to tender performance
under the terms of the Agreement of Sale.
85. Plaintiff never sought to reschedule settlement on or
before December 16, 1997 which was the terminal date for
settlement under the Addendum to the Agreement of Sale.
86. Paragraph 20 of the Agreement of Sale states that time
is of the essence and that should the Buyer fail to fulfill or
perform any of the terms or conditions of this Agreement all
deposit monies and other sums paid by the Buyer on account of the
purchase price may be retained by the Seller.
COUNTERCLAIM
COUNT I - BREACH OF CONTRACT
87. Paragraphs 1 through 86 are incorporated herein as if
set forth at length.
88. Following Plaintiff's refusal to tender performance
under the Agreement of Sale dated November 9, 1996, Defendants
sold the property on March 21, 1997, to another Buyer at a price
of $112,000.00, which was the fair market value of the property
at the time, causing a loss to Defendants of the di fference
between the price agreed-upon with Plaintiff and the actual sales
price, together with costs and expenses incurred by Plaintiff in
dealing with Plaintiff on the sale of the property.
89. The costs and expenses incurred by Defendants in
dealing with Plaintiff and on reliance that Plaintiff would
complete the sale of the property under the Sales Agreement of
November 9, 1996, consisted of the following:
a. For repairs made to the private water system:
$634.80;
b. For repairs made at the request of the
Plaintiff's home inspection engineers: $1.348.46;
c. For maintaining electrical services to the
property between the settlement date and the actual
date of sale to the third parties: $251.80:
notified of the written inspection performed by Dillsburg Septic
System within a short period of time prior to the scheduled date
and time for settlement.
80. Plaintiff is without sufficient information to form an
opinion as to the truth of the allegations set forth in paragraph
80 of Defendant O'Malleys New Matter. To the extent a response is
necessary, the allegation is denied and strict proof thereof
demanded at arbitration or hearing, or trial.
81. Denied. To the contrary, the written report was not
communicated in writing to the Plaintiff until on or about
December 12, 1996, and the report clearly indicated that Dillsburg
Septic and Excavating could not guarantee that the septic lines
would remain functioning as stated in Exhibit ME" of Plaintiff's
Complaint.
82. Admitted.
83. Denied. To the contrary, Plaintiff was under no
obligation to appear for settlement due to the failure of
Defendant O'Malleys to satisfactorily comply with all conditions
of the Agreement of Sale and Addendums and due to Defendants
failure to honestly and fairly depict the true condition of the
septic system during negotiations for purchasing the home.
84. Plaintiff is without sufficient information to form an
opinion as to the truth of the allegations set forth in paragraph
84 of Defendant O'Mal1eys New Matter. To the extent a response is
necessary, the allegation is denied and strict proof thereof
demanded at arbitration or hearing, or trial.
2
85. Admitted with clarification. Plaintiff did not seek to
reschedule settlement due to Defendants failure to satisfactorily
comply with all conditions of the Agreement of Sale and Addendurns
and due to Defendants failure to honestly and fairly depict the
true condition of the septic system during negotiations for
purchasing the home.
86. Admitted with clarification. Paragraph 20 is
inapplicable in the instant matter as Defendant O'Malley's failed
to satisfactorily comply with all conditions of the Agreement of
Sale and Addendums and due to Defendants failure to honestly and
fairly depict the true condition of the septic system during
negotiations for purchasing the home.
87. Paragraphs 1 through 73 of Plaintiff's Complaint are
incorporated herein as if set forth at length and paragraphs 74 -
86 of this responsive pleading are incorporated as if set forth at
length.
88. Plaintiff is without sufficient information to form an
opinion as to the truth of the allegations set forth in paragraph
88 of Defendant O'Halleys Counterclaim. To the extent a response
is necessary, the allegation is denied and strict proof thereof
demanded at arbitration or hearing, or trial.
89. Denied. Plaintiff is without sufficient information to
form an opinion as to the truth of the allegations set forth in
paragraph 88, including subparagraphs a - f of Defendant O'Halleys
Counterclaim. To the extent a response is necessary, the
allegations are denied and strict proof thereof demanded at
3
arbitration or hearing, or trial. By way of further
response,Defendant's failure to ~atisfactorily comply with all
conditions of the Agreement of Sale and Addendums and due to
Defendants failure to honestly and fairly depict the true
condition of the septic system during negotiations for purchasing
the home does not support Defendant's request for relief in the
Counterclaim.
90. Denied and strict proof demanded thereof at arbitration,
hearing or trial. By way of further response, any damages incurred
by Defendant O'Malleys were self-inflicted due to their failure to
satisfactorily comply with all conditions of the Agreement of Sale
and Addendums and due to Defendants failure to honestly and fairly
depict the true condition of the septic system during negotiations
for purchasing the home.
WHEREFORE, Plaintiff, Catherine A. Williams, respectfully
requests that this Honorable Court dismiss or find against the
Counterclaim of Defendants Terrence K. O'Malley and Sandra L.
O'Malley and in favor of Plaintiff in the underlying complaint.
Otted,
4
CATHERINE A. WILLIAMS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
No: 97-4132 Civil Term
TERRENCE K. O'MALLEY and
SANDRA L. O'MALLEY,
husband and wife, THOMPSON
WOOD REAL ESTATE, and
STEPHEN THOMPSON,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
TO: Catherine A. Williams, Plaintiff and
Andrew C. Sheely, Esquire
127 South Market Street
P.O. Box 95
Mechanicsburg, PA 17055
YOU ARE HEREBY NOTIFIED, that the New Matter set forth herein contains
averments against you to which you are required to respond within twenty (20) days
after service thereof. Failure by you to do so may constitute an admission.
CALDWELL & KEARNS
/
, Esquire
Dated: .>~ /fir
CATHERINE A. WILLIAMS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
No 97-4132 Civil Term
TERRENCE K. O'MALLEY and
SANDRA L O'MALLEY,
husband and wife, THOMPSON
WOOD REAL ESTATE, and
STEPHEN THOMPSON.
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEFENDANTS. THOMPSON WOOD REAL ESTATE AND STEPHEN
THOMPSON'S ANSWER TO THE COMPLAINT WITH NEW MATTER
1, Admitted.
2, Admitted.
3. Admitted"
4. Admitted"
5. Admitted in part.
1996.
The Agreement of Sale was executed November 9,
6. Admitted in part The said agreement speaks for itself.
7. Admitted that settlement was to take place on or before December 12,
1998
8 Admitted
9. Admitted,
2
10, Admitted in part. Defendant Stephen Thompson and Thompson Wood
Real Estate, Inc., at all times relevant hereto acted within their capacity as real estate
licensees pursuant to the Pe,1nsylvania Real Estate Licensing and Registration Act.
Said Defendants furthermore acted as listing agents on behalf of the O'Malleys
pursuant to a written agreement.
11, Admitted in part. Defendant Stephen Thompson executed the said
document with the authority of Defendants O'Malley with their full knowledge,
understanding and consent to the provisions of the said addendum which were
intended by them to be part of the Agreement of Sale. Defendant Thompson did not
execute the document on his own behalf or on behalf of Defendant Prudential
Thompson Wood.
12. Denied. The said addendum speaks for itself. It is believed and therefore
averred that the addendum was executed by the O'Malleys on December 2, 1996. The
addendum was executed by Defendant Thompson on behalf of the O'Malleys, The
said addendum provided for an inspection and contingencies based upon the results of
the inspection and it was binding on the parties to the transaction who were Defendants
O'Malley and Plaintiff Williams.
13 Denied. The said addendum speaks for itself. The addendum was
executed by Defendant Thompson on behalf of the O'Malleys"
3
14. Denied. After reasonable investigation, answering Defendants are
without knowledge or information sufficient to form a belief as to the truthfulness of the
averments of Paragraph 14 of Plaintiffs complaint and the same are thereby denied,
15, Denied. After reasonable investigation, answering Defendants are
without knowledge or information sufficient to form a belief as to the truthfulness of the
averments of Paragraph 15 of Plaintiffs complaint and the same are thereby denied,
16. Denied. A copy of livingston's report was not attached to the copy of
Plaintiffs complaint served upon answering Defendants. Answering Defendants admit
that they did not advise Plaintiff of the existence of Exhibit "E" inasmuch as the said
document was never provided by Defendant O'Malleys to answering Defendants.
Furthermore, answering Defendants did not know of the existence of said document or
have reason to believe of the existence of said document
17. Denied. The specific disclosure is set forth in Exhibit "B" to Plaintiffs
complaint The said Exhibit speaks for itself.
18. Denied. The said document speaks for itself.
19. Denied. The said report speaks for itself Exhibit "E" is also identified by
Plaintiffs complaint as livingston's report.
20. Denied What the O'Malleys set forth in their Seller's Property Disclosure
Statement is apparent from a reading from the said document, which speaks for itself,
After reasonable investigation, answering Defendants are without knowledge or
4
information sufficient to form a belief as to the truthfulness that Defendants O'Malley
never informed Plaintiff of the written report referenced in Paragraph 19 of Plaintiffs
complaint. Answering Defendants were never informed of its existence and therefore
were unable to make any disclosure regarding the existence of said document.
21. Denied. After reasonable investigation answering Defendants are without
knowledge or information sufficient to form a belief as to the truthfulness of the
averments of Paragraph 21 of Plaintiffs complaint and the same are thereby denied.
22. Denied" After reasonable investigation answering Defendants are without
knowledge or information sufficient to form a belief as to the truthfulness of the
averments of Paragraph 22 of Plaintiffs complaint and the same are thereby denied~
23. Denied, After reasonable investigation answering Defendants are without
knowledge or information sufficient to form a belief as to the truthfulness of the
averments of Paragraph 23 of Plaintiffs complaint and the same are thereby denied.
24. Denied. After reasonable investigation answering Defendants are without
knowledge or information sufficient to form a belief as to the truthfulness of the
averments in Paragraph 24 of Plaintiffs complaint and the same are thereby denied,
25, Denied. The said deposit was not given to Defendant Stephen Thompson
individually, Rather, the deposit was given to Defendant Thompson Wood Real Estate,
Inc., to be held in an escrow account pursuant to the Real Estate licensing and
Registration Act and the Rules and Regulations of the PeMsylvania Real Estate
5
Commission,
26, Admitted that settlement did not take place December 12, 1996 and that
Defendants O'Malley have refused to authorize the release of the said deposit of
$3,000 to Plaintiff. Answering Defendants have at all times relevant hereto expressed
an interest in releasing the said deposit in any manner and to any party as may be
agreed upon between Plaintiff and Defendants O'Malley, Pursuant to the Pennsylvania
Real Estate Licensing and Registration Act and the Rules and Regulations of the
Pennsylvania State Real Estate Commission, answering Defendants are not permitted
to release the funds in the event of a dispute between the parties to the real estate
transaction.
COUNT I
27-34. The allegations of Paragraphs 27 through 34 are directed to
Defendants other than answering Defendants.
COUNT II
35-40. The allegations of Paragraphs 35 through 40 are directed to
Defendants other than answering Defendants.
COUNT III
41. No answer required~
42 Admitted in part Defendant Stephen Thompson executed the Agreement
of Sale and several addenda WIth the express consent of Defendants O'Malley and
6
after complete disclosure of the contents of said documents by Defendant Thompson to
O'Malleys. Furthermore, Defendants O'Malleys and answering Defendants had
entered into an agreement whereby answering Defendants would purchase the
O'Malleys interest in the real estate in the event it would not sell For this reason,
Defendant Thompson reviewed and was given authority to execute documents on
behalf of the O'Malleys.
43. Denied. Answering Defendants were never in possession of the subject
property, never title holders to the subject property and never conducted an
independent investigation of the condition of the subject property. Rather, answering
Defendants reasonably relied upon the disclosures of Defendants Q'Malleys and the
fact that Defendants O'Malleys truthfully completed a Seller's Property Disclosure
Statement. Answering Defendants were never apprised of the history of the septic
system nor of the existence of Exhibit '"E" Answenng Defendants have at all times
relevant hereto agreed to return the deposit money to Plaintiff in the event that the
O'Malleys would authorize the same~ Pursuant to the Rules and Regulations of the
State Real Estate Commission and the Pennsylvania Real Estate Licensing and
Registration Act, answering Defendants are not permitted to release a deposit absent
the agreement of the parties to the transaction
44, Denied. The averments of paragraph 44 are conclusions of law to which
no answer need be made
7
45, Answering Defendants do not admit that the Agreement of Sale was
breached by the O'Malleys Nevertheless, answering Defendants are willing to release
the Plaintiffs deposit upon the agreement of all parties to the said transaction.
46, Denied that the Agreement of Sale was breached as aforesaid.
COUNT V
47. No answer required.
48, Denied. See the averments of Paragraph 42 which are incorporated
herein by reference as though set forth in length~
49. Denied. See the averments of Paragraph 43 which are incorporated
herein by reference as though set forth in length
50, Denied. See the averments of Paragraph 45 which are incorporated
herein by reference as though set forth in length.
51. Denied. See the averments of Paragraph 46 which are incorporated
herein by reference as though set forth in length.
COUNT VI
52.55, The averments of Paragraphs 52 through 55 are direded to
Defendants other than answering Defendants
COUNT VII
56. No answer required
57. Denied that answenng Defendants engaged in any unfair, deceptive trade
6
58. Denied. The averments of Paragraph 58 are conclusions of law to which
no answer need be made.
COUNT VIII
59-61, The averments of Paragraphs 56 through 58, inclusive, are
incorporated herein as though set forth at length.
COUNT IX
62-65. The averments of Paragraphs 62 through 65 are directed to
Defendants other than answering Defendants
COUNT X
66" No answer required~
67. Denied. The averments of Paragraph 67 are conclusions of law and not
factual allegations to which a response is required.
68. Denied. Answering Defendant had no knowledge of the falsity of the
Seller's Property Disclosure Statement, to the extent that the same is deemed to be
false, Answering Defendant was not duty-bound to execute Seller's Property
Disclosure Statement It is further averred that the signature of Stephen Thompson on
the Agreement of Sale and documents does not render him duty-bound to execute a
Seller's Property Disclosure Statement when the title owners have executed the same.
Answering Defendant did not learn of a condition regardIng the septic system
subsequent to Plaintiffs receipt of the Seller's Property Disclosure Statement that was
10
not also known by seller, Any newly discovered information was discovered pursuant
to inspections conducted on behalf of Plaintiff for purposes of this transaction, with the
results known by Plaintiff
69. Denied, The averments of Paragraph 69 are conclusions of law to which
no answer need be made
COUNT XI
70-73. The averments of Paragraphs 66 through 69 are incorporated
herein by reference as though set forth here at length,
NEW MATTER
74. At all times relevant hereto, answering Defendants reasonably relied
upon the representations of the title owners and sellers, Defendants O'Malley WIth
respect to the condition of the property.
75. Answering Defendant Stephen Thompson specifically requested that
Defendants O'Malley complete a Seller's Property Disclosure Statement that accurately
reflected the condition of the property as known by them
76, Answering Defendants were without knowledge, information or reason to
believe that there were any prior inspections or problems with the on-lot sewage
disposal system that were not revealed by Defendants O'Malley.
77. Answering Defendants believe and therefore aver that the septic system
which is the subject of this IIl1gation was cleaned, Inspected, and after remediation, was
11
WHEREFORE, answering Defendants request that judgment be entered in their
favor as against all others, or in the alternative, that Defendants O'Malley be held
solely liable to Plaintiff, or that Defendants O'Malley be held jointly and severally liable
with answering Defendants or liable over to them.
Respectfully submitted,
CALDWELL & KEARNS
/1
Dated: s"!/f'r
ames L. Got smith, Esquire
Atty 10 #2Z 15
Attorne or Defendants Stephen
Thompson and Thompson Wood
Real Estate, Inc.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
13
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. "RU"IOltAt.. C:O"'O..,TIO_
ATTORNEYS AT LAW
3.3. NO""" "'ONT STREET
HARRISBURG. PENNSYLVANIA 171.0
CATHERINE A. WILLIAMS,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
.
.
TERRENCE K. O'MALLEY and
SANDRA L. O'MALLEY, husband
and wife, THOMPSON WOOD REAL
ESTATE, INC., t/a and d/b/a
PRUDENTIAL THOMPSON WOOD REAL
ESTATE, and STEPHEN THOMPSON
Defendants
.
.
97 - 4132
: CIVIL ACTION LAW
JURY TRIAL DEMANDED
PLAINTIPPS RBPLY TO NBW MATTBR or DBPBNDANTS THOMPSON WOOD
REAL ESTATB. INC.. ~/a and d/b/a PRUDBNTIAL THOMPSON WOOD
RBAL BSTATB. and STBPHBN THOMPSON
Plaintiff, Catherine A. Williams, by and through counsel of
Andrew C. Sheely, Esquire, hereby files this Reply to the New
Matter and Counterclaim of Defendants Thompson Wood Real Estate,
Inc., t/a and d/b/a Prudential Thompson Wood Real Estate, and
Stephen Thompson, and respectfully states as follows:
73. paragraphs 1 through 73 of Plaintiff's Complaint are
incorporated herein as if set forth at length.
74. Plaintiff is without sufficient information to form an
opinion as to the truth of the allegations set forth in paragraph
74 of Defendants New Matter. To the extent a response is
necessary, the allegation is denied and strict proof thereof
demanded at arbitration or hearing, or trial.
75. Plaintiff is without sufficient information to form an
opinion as to the truth of the allegations set forth in paragraph
75 of Defendants New Matter. To the extent a response is
necessary, the allegation is denied and strict proof thereof
demanded at arbitration or hearing, or trial.
76. Plaintiff is withuut sufficient information to form an
opinion as to the truth of the allegations set forth in paragraph
76 of Defendants New Matter. To the extent a response is
necessary, the allegation is denied and strict proof thereof
demanded at arbitration or hearing, or trial.
77. Denied. To the contrary, Plaintiff was advised by
Dillsburg Septic and Excavating that the sewage system at
Defendants property was not functioning at the time of inspection,
that it had to be pumped and that it could take as long as six (6)
months before another meaningful inspection could be performed.
By way of further response, Plaintiff was not informed by any
Defendant that the septic system was not functioning until being
notified of the written inspection performed by Dillsburg Septic
System within a short period of time prior to the scheduled date
and time for settlement.
78. Denied. To the contrary, Plaintiff advised all parties
that she would not settle due to the inoperable status of the
septic system, due to statements by agents for Dillsburg Septic
and Excavating that six (6) months was necessary to determine
whether the septic system was properly functioning and that
Dillsburg Septic System would not guarantee that the septic system
would be properly working in six (6) months.
79. Plaintiff is without sufficient information to form an
opinion as to the truth of the allegations set forth in paragraph
79, as ahe is not familiar with the policies of Dillsburq Septic
2
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.... to...' .....