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HomeMy WebLinkAbout03-2002HAROLD S. IRWIN, 111, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PLAINTIFF CRAIG M. KELLEY amd : IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. : CIVIL ACTION - LAW CHRISTOPHER B. POLKINGHORN and : - 00 KRISTINE L. POLKINGHORN, his wife,: NO. 03 CIVIL TERM Defendants 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 an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-243-3166 CRAIG M. KELLEY amd : IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Vs. : CIVIL ACTION - LAW CHRISTOPHER B. POLKINGHORN and : KRISTINE L. POLKINGHORN, his wife, : NO. 03 -,Zvo-2- CIVIL TERM Defendants COMPLAINT NOW comes the plaintiffs, by their attorney, Harold S. Irwin III, Esquire, and file this complaint against the defendants, representing as follows: 1. The plaintiffs are Craig M. Kelley and Andrea E. Kelley, his wife, adult individuals residing at 250 Walnut Street, Carlisle, Cumberland County, Pennsylvania 17011. 2. The defendants are Christopher B. Polkinghorn and Kristine L. Polkinghorn, adult individuals residing at 4111 Copperfield Drive, Harrisburg, Dauphin County, Pennsylvania 17112 and having a place of business at 2608 Walnut Street, Harrisburg, Dauphin County, Pennsylvania. 3. On or about December 5, 2002, defendants executed and delivered a deed, conveying to the plaintiffs certain real property known and numbered as 34 - 36 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013. A copy of said deed is incorporated herein by reference and attached hereto as Exhibit "A". 4. Said deed contained the following warranty language: "And the said Grantors hereby covenant and agree that they will warrant generally the property hereby conveyed." 5. At the time of said real estate settlement, defendants executed a Seller's affidavit wherein they certified, inter alia, that there were no outstanding liens, taxes, utility charges or other obligations pertaining to said real estate which were not being satisfied in the settlement. 6. Subsequent to the settlement, however, plaintiffs were advised by the Cumberland County Tax Claim Bureau that, contrary to the terms of plaintiffs warranty and sellers' affidavit, there were outstanding real estate taxes on said properties for 2002 in the amount of $3,455.99, as of February 13, 2003, which outstanding amount has now increased to $3,502.53. A copy of the Tax Claim Bureau notice is incorporated herein by reference and attached hereto as Exhibit "B". 7. In addition, plaintiffs have been advised that, contrary to the terms of their warranty and sellers' affidavit, plaintiffs also had unpaid water charges for the premises in the amount of $183.87, which amount plaintiffs have been required to pay. A copy of the receipt for payment of these charges is incorporated herein by reference and attached hereto as Exhibit "C". 8. Plaintiffs have made demand of defendants to pay these outstanding taxes and real estate taxes; however, defendants have refused to pay the same or any part thereof and continue so to refuse. 9. The failure of the plaintiffs to pay said taxes and water charges is a breach of their warranty as contained in the deed. 10. Such failure is also in direct contravention of their notarized affidavit in which they affirmed that no such taxes or charges were outstanding and amounts to fraud against the plaintiffs such that plaintiffs' counsel fees and costs in bringing this action should be reimbursed to them. WHEREFORE, plaintiff demands judgment against the defendant for plaintiffs actual damages of $$3,686.40, plus such additional amounts as are added by the Tax Claim Bureau at the time of payment, plus interest and attorney fees. i April 25, 2003 HAROLD S. IRWIN, II Attorney for plainti s 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 VERIFICATIM The foregoing complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of the complaint is the language of my counsel and not my own. I have read the complaint and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the complaint is that of counsel, I have relied upon counsel in making this verification. I understand that false statements made herein are suh;ect to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. April 2003 CRAIG M. KELLEY a4 ANDREA E. KELLEY EXHIBIT "A" Tax Parcel # 05-21-0320-112 DEED MADE THE 5_ day of in the year of our Lord two thousand and two (2002) BETWEEN KRISTINE L. POLKINGHOR- , and CHRISTOPHER B. POLKINGHORN, wife and husband. of Harrisburg, Dauphin County. Pennsylvania. hereinafter called. GRANTORS, and CRAIG M. KELLEY and ANDREA E. KELLEY, husband and wife, of Carlisle. Cumberland County, Pennsylvania. hereinafter called. GRANTEES. WITNESSETH, that in consideration of ONE HLTDRED AND SIXTY THOUSAND ($160,000.00) dollars, in hand paid, the receipt whereof is hereby acknowledged, the said Grantors do hereby grant and convey to the said Grantees, their heirs and assigns, as tenants by the entireties: ALL THAT CERTAIN tract of land with the improvements thereon erected situate in the Fourth Ward of the Borough of Carlisle, known as 34-36 North Hanover Street. Cumberland County, Pennsylvania. bounded and described as follows: BEGINNING at a point on the western line of North Hanover Street. being the northern extremity of said lot thence westwardly along the line of land now or formerly of R. H. Wenger. a distance of 65 feet to a point. thence southwardly I foot 6 inches to a point: thence westwardly a distance of 175 feet to a point at land now or formerly of the estate of John D. Meck; thence southw•ardly along said last mentioned property 30 feet to a point on the line of property formerly of N. W. Blumenthal, now of Fred Wardecker; thence eastwardly along said line a distance of 180 feet to a point; thence South 1 foot 6 inches to a point; thence eastwardly along said lands a distance of 60 feet to said North Hanover Street; thence northwardly along said North Hanover Street 33 feet to a point, the Place of Beginning. HAVING THEREON erected a three story building known and numbered as 34-34 ''/2- 36 North Hanover Street. TOGETHER with the free use, liberty and privilege of a 10 foot right-of-way or alley leading from the western extremity of said lot to West Louther Street. BEING the same premises that Ralph C. Peiper and Doreen R. Peiper, husband and wife, by their Deed dated December 29, 2000 and recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Deed Book "236", Page 991, granted and conveyed unto Kristine L. Polkinghorn, a married woman, Grantor herein. CHRISTOPHER B. POLKINGHORN joins in this conveyance to transfer whatever interest he may be construed to have. And the said Grantors hereby covenant and agree that they will warrant generally the property hereb-,- conveyed. IN WITNESS WHEREOF, the said Grantors have hereunto set their hands and seals the day and vear first above written. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF L. POL G ORN CHRISTO ER B. POLKIN RN COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the day of ?,tt 2002, before me. a Notary Public for the Commonwealth of Pennsylvania, the undersigned officer. personally appeared K.RISTINE L. POLKINGHORN and CHRISTOPHER B. POLKINGHORIIN known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SERI.) Notary Public I do hereby certify that the precise residence and complete post office address of the within-named Grantees is: Zsp W r9??"'?'T? C,q,2Lct[? P.•? -? Date: l Z/3 c3 2-_ Attorney for COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND RECORDED on this day of A. D. 2002, in the Recorder's Office of the said County, in Deed Book . , Volume , Page Given under my hand and the seal of the said Office, the date above wntten. Recorder EXHIBIT "B" FPcr, t10. -- --- _--=+-'+sn ?lar. 01 T ? s a Y 17 ? D b f Z J X G? n • z A 0 ?r^ pN mm0 9 x Corn -C 040 m c = ? G Z rn w A w? ? Q? Z ?J l T ?in ???' oy? ? • D n?? ? }Z? ?.. ?m3 r rn ca n 0 3 a Z? O C.) ! 90 a yc M N Q o$ C7 mN 0 m D M^c rX- 2 r- z O S' g n z z m r ? C.a Z. O go Z 'fl Co = AD O O A' 0 rn rn? Z -0 0 m Z ?rn D O Z m < .Q O z ca r R] O .0 C< -.1 r N L-j O Q ru Ir Ir m Is. A Q 4 D n Nrm rnT o U)jT 9 m N D? o xs 3 x P3 EXHIBIT "C" Name: _ Paid By: Borough of Carlisle 53 W. South Street Carlisle, PA 17013 Cash Receipt Account No: i Misc. Desc: Amount Paid: PA I D APR 1 0 29,,Clerk Initials ?%1-- r C6 c : c> ' T v ' it' ?? v - C L - SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-02002 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KELLEY CRAIG M ET AL VS POLKINGHORN CHRISTOPHER ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: POLKINGHORN CHRISTOPHER B but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On June 3rd , 2003 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 36.50 $ /v. .00 73.50 06/03/2003 HAROLD IRWIN III Sworn and subscribed to before me this /?7 day of 02N3 A.D. Prothonotary' Aas Kline ff of Cumberland County (plitEQ of t4P hrriff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax:(717)255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania KELLEY CRAIG M vs County of Dauphin POLKINGHORN CHRISTOPHER B Sheriff's Return No. 1043-T - - -2003 OTHER COUNTY NO. 03 2002 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for POLKINGHORN CHRISTOPHER B the DEFENDANT named in the within NOTICE & COMPLAINT and that I am unable to find him/her in the county of Dauphin, and therefore return same NOT FOUND, May 28, 2003 AS PER DEPUTY GASPICH DEF DOES NOT ANSWER THE DOOR, THEY LOOK OUT THE WINDOW BUT DO NOT ANSWER THE DOOR. THEY WERE SAID TO OWN A JEWERLY SHOP IN WALNUT STREET IN PENBROOK. Sworn and subscribed to before me this 28TH da f MAY, 2003 ?/?)? f So Answers, t? Sheriff of Dauphin County, Pa. PROTHONOTARY By Deputy Sheriff Sheriff's Costs: $36.50 PD 05/01/2003 RCPT NO 178291 In The Court of Common Pleas of Cumberland County, Pennsylvania Craig M. Kelley et al vs. Christopher B. Polkinghorn et al SERVE: Christopher B. Polkinghorn No. 03-2002 civil Now, April `29, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. rl Sheriff of Cumberland County, PA Affidavit of Service Now, within , 20 , at o'clock M. served the upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this day of 20 COSTS SERVICE $ MILEAGE AFFIDAVIT SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-02002 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KELLEY CRAIG M ET AL VS POLKINGHORN CHRISTOPHER ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: POLKINGHORN KRISTINE L but was unable to locate Her deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On June 3rd , 2003 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 06/03/2003 HAROLD IRWIN III Sworn and subscribed to before me this /,t a? day of (9UP-1, d'09-3 A.D. / ?' hu., Prothonota"r omas Kline iff of Cumberland County i?c?e f4e o*heri.f f Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy COnunonwealth of Pennsylvania KELLEY CRAIG M vs County of Dauphin POLKINGHORN CHRISTOPHER B Sheriff's Return No. 1043-T - - -2003 OTHER COUNTY NO. 03 2002 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for KRISTINE L the DEFENDANT named in the within NOTICE & COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, May 28, 2003 AS PER DEPUTY GASPICH DEF DOES NOT ANSWER THE DOOR. THEY LOOK OUT THE WINDOW BUT DO NOT ANSWER. THEY ARE SAID TO OWN A JEWERLY SHOP IN PENBROOK Sworn and subscribed to So Answers, //? b foIZ s 2 8TH of MAY, 2003 k e,; nf Sheriff of Dauphin County, Pa. PROTHONOTARY By Deputy Sheriff Sheriff's Costs: $36.50 PD 05/01/2003 RCPT NO 178291 In The Court of Common Pleas of Cumberland Country, Pennsylvania Craig. M. Kelley et al VS. Christopher B. Polkinghorn et al SERVE: Kristine L. Polkinghorn No 03-2002 civil Now, April 29, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within 20 , at o'clock M. served the upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this day of 20 COSTS SERVICE $ MILEAGE AFFIDAVIT $ CRAIG M. KELLEY and : IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Vs. : CIVIL ACTION - LAW CHRISTOPHER B. POLKINGHORN and : KRISTINE L. POLKINGHORN, his wife,: NO. 03 - :0? CIVIL TERM Defendants PETITION FOR ALTERNATIVE SERVICE NOW come the petitioners, by their attorney, Harold S. Irwin, III, Esquire, and present this petition for alternative service, representing as follows: 1. The plaintiffs are Craig M. Kelley and Andrea E. Kelley, his wife, adult individuals residing at 250 Walnut Street, Carlisle, Cumberland County, Pennsylvania 17011. 2. The defendants are Christopher B. Polkinghorn and Kristine L. Polkinghorn, adult individuals residing at 4111 Copperfield Drive, Harrisburg, Dauphin County, Pennsylvania 17112 and having a place of business at 2608 Walnut Street, Harrisburg, Dauphin County, Pennsylvania. 3. On or about December 5, 2002, defendants executed and delivered a deed, conveying to the plaintiffs certain real property known and numbered as 34 - 36 North Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013. 4. Said deed contained the following warranty language: "And the said Grantors hereby covenant and agree that they will warrant generally the property hereby conveyed." 5. At the time of said real estate settlement, defendants executed a Seller's affidavit wherein they certified, inter alia, that there were no outstanding liens, taxes, utility charges or other obligations pertaining to said real estate which were not being satisfied in the settlement. On the basis of said affidavit, the proceeds of $12,214.90 were paid over to defendants. 6. Subsequent to the settlement, however, plaintiffs were advised by the Cumberland County Tax Claim Bureau that, contrary to the terms of plaintiffs warranty and sellers' affidavit, there were outstanding real estate taxes on said properties for 2001 in the amount of $3,635.04 and for 2002 in the amount of $3,525.80, which amounts continue to increase. 7. In addition, plaintiffs have been advised that, contrary to the terms of their warranty and sellers' affidavit, plaintiffs also had unpaid water charges for the premises in the amount of $183.87, which amount plaintiffs have been required to pay. 8. Plaintiffs have made demand of defendants to pay these outstanding real estate taxes and water charges; however,; defendants, despite agreeing to take care of this matter, have refused to pay the same or any part thereof and continue so to refuse. 9. The failure of the plaintiffs to pay said taxes and water charges is a breach of their warranty as contained in the deed. 10. Such failure is also in direct :ontravention of their notarized affidavit in which they affirmed that no such tax-Is or charges were outstanding and amounts to fraud against the plaintiffs such that plaintiffs' counsel fees and costs in bringing this action should be reimbursed to them. 11. Plaintiffs filed a complaint against the defendants on April 28, 2003, and a certified copy thereof was forwarded to the Sheriff of Dauphin County, Pennsylvania for service upon the defendants at their residence at 4111 Copperfield Drive, Harrisburg, Dauphin County, Pennsylvania 17112 and at their place of business at 2608 Walnut Street, Harrisburg, Dauphin County, Pennsylvania. 12. On May 28, 2003, Dauphin County Deputy Sheriff Gaspich reported that he arrived at the residence to serve the complaint and that the defendants were inside the residence, looked out the window at him, but refused to answer the door to accept service. 13. Following that attempt to make service, the Dauphin County Sheriff filed a Return of Service marked "Not Found". See Exhibit "A" attached hereto and incorporated herein by reference. 14. Plaintiffs believe and therefor aver that both of the addresses for defendants listed above are accurate as the residence and place of business of defendants; however, defendants have so far successfully and intentionally avoided service of this complaint. 15. Plaintiffs have a legitimate complaint for a substantial sum of money owed to it by the defendants and should not be prevented the ability to prove its case in a Court of law or otherwise obtain judgment against the defendants due to defendants' refusal to accept service of plaintiffs complaint. WHEREFORE, plaintiff requests that your Honorable Court enter an Order providing that plaintiffs reinstate their complaint and proceed to serve defendants by regular mail and by publication, once m the Cumberland County Law Journal and once in a local newspaper in Cumberland County, Pennsylvania. August 7 11 , 2003 HAROLD S. IRWIN, III, Attorney for Plaintiffs VERIFICATION I verify that the facts contained in the foregoing complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn falsification to authorities. August 11, 2003 ANDREA E. KELLEY EXHIBIT "A" off-re of t4P *hr--riff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania KELLEY CRAIG M vs County of Dauphin POLKINGHORN CHRISTOPHER B Sheriff's Return No. 1043-T - - -2003 OTHER COUNTY NO. 03 2002 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for POLKINGHORN CHRISTOPHER B the DEFENDANT named in the within NOTICE & COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, May 28, 2003 AS PER DEPUTY GASPICH DEF DOES NOT ANSWER THE DOOR, THEY LOOK OUT THE WINDOW BUT DO NOT ANSWER THE DOOR. THEY WERE SAID TO OWN A JEWERLY SHOP IN WALNUT STREET IN PENBROOK. Sworn and subscribed to before me this 28TH daffy-9f MAY, 2003 t?'J1?cU rte.,` PROTHONOTARY. So Answers, Sheriff of Dauphin County, Pa. By ;Deputy Sheriff Sheriff's Costs:$36.50 PD 05/01/2003 RCPT NO 178291 C7 ? , c-} C ,, i ^? > -? c?? .__ ? 1.? ' ,. ' .. i ,? . ) f.,,.. ".? : :rn 7 . j __? rr x -.. r-- i _? HAROLD S. IRWIN, 111, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PETITIONER CRAIG M. KELLEY and IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. : CIVIL ACTION .. LAW CHRISTOPHER B. POLKINGHORN and : KRISTINE L. POLKiNGHORN, his wlfc,: NO. 03 - 2002 CIVIL TERM Defendants ORDER OF COURT NOW, this _t,_L day of , 2003, in consideration of the within petition and on motion of Harold S. Irwin. I'll, Esquire, attorney for plaintiff, it is ordered and decreed that plaintiff shall file a praecipe to reinstate the complaint in this action and service upon the defendants is authorized to be accomplished by publication, once in the Cumberland County Law Journal and once in a local Cumberland County newspaper as well as by regular mail at defendants' residence and place of business. By the Court, p ??5 oq -c VNVAUASNN3d S :I Pd S- 83S CO A?J?11 i -10 Ii -01?j HAROLD S. IRWIN, 111, ESQUIRE ATTORNEY ID NO. 29920 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 2436090 ATTORNEY POR PLAINTIPP CRAIG M. KELLEY amd : IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs . Vs. : CIVIL ACTION - LAW CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINGHORN, his wife, : NO. 03 - 2002 CIVIL TERM Defendants PRAECIPE TO THE PROTHONOTARY: Please reinstate the complaint filed in this matter. The Court has authorized service upon the defendants by publication. Accordingly, please do not forward the reinstated complaint to the Sheriff, but return it to plaintiffs counsel for service as permitted by the attached Order. November 24, 2003 HAROLD S. IRWIN, II Attorney for plaintiff 64 South Pitt Street Carlisle, PA 17013 (717) 243-6090 Supreme Court I.D. NO. 29920 c> - ?? ? _' ?,?? ?,. ?, -? u, .._ r_ c ?- (-', fit, __1i ?? CRAIG M. KELLEY and ANDREA E. KELLEY, his wife, Plaintiffs V. CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINGHORN, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-2002 CIVIL TERM NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford St. Carlisle, PA 17013 (717) 249-3166 OR (800) 990-9108 CRAIG M. KELLEY and ANDREA E. KELLEY, his wife, Plaintiffs V. CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINGHORN, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-2002 CIVIL TERM DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT NOW come the Defendants, by their Attorneys Stephanie E. Chertok, R.N., Esq., and John C. Porter, Esq., and file this Answer and New Matter against the Plaintiffs, representing as follows: ANSWER 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied in that the averment contains a conclusion of law to which no responsive pleading is required. Admitted to the extent that the deed in question did contain the language Plaintiffs set-off in quotes. 5. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the truth of Plaintiffs' averment. 6. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the truth of Plaintiffs' averment. In addition, the same contains a conclusion of law to which no responsive pleading is required. 7. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the truth of Plaintiffs' averment. In addition, the same contains a conclusion of law to which no responsive pleading is required. 8. Denied. 9. Denied in that the averment is a conclusion of law to which no responsive pleading is required. 10. Denied in that the averment contains conclusions of law to which no responsive pleading is required. NEW MATTER 11. Plaintiffs' tenth averment includes scandalous matter -- Plaintiffs' suggestion that Defendants committed fraud. 12. Plaintiffs' are barred from recovering due to Plaintiffs', and/or Plaintiffs' Agent's comparative negligence. 13. Plaintiff's claims are barred because Plaintiffs have failed to join necessary parties as Defendants, namely Harold S. Irwin, III, Esq. and Penn Attorneys Title Insurance. 14. Plaintiffs' claims are barred by the Doctrine of Merger. 15. Plaintiffs' have failed to allege a cause of action for fraud. 16. Plaintiffs' have failed to plead the elements of fraud with the requisite particularity mandated by Pa. R.C.P. 1019(b). IT Plaintiffs' claims are barred by estoppel. 18. Plaintiffs' claims are barred by justification. 19. Plaintiffs' claims are barred by release. 20. Plaintiffs' claims are barred because Plaintiffs lack standing. WHEREFORE, Defendants request that this Court dismiss Plaintiffs' Complaint with prejudice and award Defendants Attorney's Fees due to Plaintiffs' inclusion of scandalous matter. Date 1 5 p BY: LC , John C. Porter, Esquire Co-counsel for Defendants PA Sup. Ct. ID# 90152 61 W. Louther St. Carlisle, PA 17013 717-249-1177 CRAIG M. KELLEY and ANDREA E. KELLEY, his wife, Plaintiffs V. CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINGHORN, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-2002 CIVIL TERM YERIFICATION We verify that the statements made in this document are, to the best of our knowledge and belief, true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. §4904 relating to unsworn falsification to authorities. DATE: 1115 )0 6 Kristine L. Polkinghom CRAIG M. KELLEY and ANDREA E. KELLEY, his wife, Plaintiffs V. CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINGHORN, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-2002 CIVIL TERM CERTIFICATE OF SFBVI John C. Porter, Esquire, hereby certifies that he served a copy of Defendants' Answer and New Matter to Plaintiffs' Complaint upon Plaintiffs' Counsel of Record by First Class Mail, postage prepaid to the following address: Irwin Law Office Hal S. Irwin, III, Esquire 64 South Pitt Street Carlisle, PA 17013 DATE: January 15, 2004 Bonn C. Porter, Esquire Co-counsel for Defendants Carlisle, PA 17013 717-249-1177 PA Sup. Ct. ID# 90152 61 W. Louther St. (7 ? CJ __ f- ? ._{ ' ? =.. r rr. = °" .-, nt -- _I',O V S ?r _ as _ - - r ?rt . _ r. J i ,? ? acvr r, =_' c.,? S ` ?+ _L HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29111110 64 SOUTH PITT STREET CARLISLE PA 17018 (717) 2436000 ATTORNEY FOR PLAINTIFF CRAIG M. KELLEY and ANDREA E. KELLEY, his wife, Plaintiffs Vs. CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINOHORN, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. OS - 2002 CIVIL TERM PLAINTIFF'S ANSWER TO DEFENDANTS NEW MATTER NOW, come the plaintiffs, by their attorney, Harold S. Irwin, III, Esquire, and respond to the defendants' new matter, representing as follows: 11. The averments of paragraph eleven of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Defendants' execution of a notarized affidavit indicating there were no unpaid taxes or water bills was knowingly false and fraudulent. 12. The averments of paragraph twelve of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Plaintiffs' damages are based upon defendants' breach of the special warranty contained in the deed and their misrepresentation regarding the existence of unpaid real estate taxes and water bills on the premises. 13. The averments of paragraph thirteen of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Plaintiffs' damages are based upon defendants' breach of the special warranty contained in the deed and their misrepresentation regarding the existence of unpaid real estate taxes and water bills on the premises. 14. The averments of paragraph fourteen of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Plaintiffs' damages are based upon defendants' breach of the special warranty contained in the deed and their misrepresentation regarding the existence of unpaid real estate taxes and water bills on the premises. 15. The averments of paragraph fifteen of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. The complaint alleges that at the time of said real estate settlement, defendants executed a Seller's affidavit wherein they certified, inter alia, that there were no outstanding liens, taxes, utility charges or other obligations pertaining to said real estate which were not being satisfied in the settlement. Those statements were fraudulent. 16. The averments of paragraph sixteen of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. The complaint alleges that at the time of said real estate settlement, defendants executed a Seller's affidavit wherein they certified, inter alia, that there were no outstanding liens, taxes, utility charges or other obligations pertaining to said real estate which were not being satisfied in the settlement. Those statements were fraudulent. 17. The averments of paragraph seventeen of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Furthermore, such averments are patently false. 18. The averments of paragraph eighteen of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Furthermore, such averments are patently false. 19. The averments of paragraph nineteen of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Furthermore, such averments are patently false. 20. The averments of paragraph twenty of defendants' new matter are conclusions of law to which no response is required. To the extent that a response is required, these averments are specifically denied. Furthermore, such averments are patently false. WHEREFORE, plaintiffs demand judgment against the defendants as requested in their complaint. January Z?-, 2004 HAROLD S. IRWIN, III Attorney for plaintiff 64 South Pitt Street Carlisle, PA 17013 (717) 249-2353 Supreme Court ID NO. 29920 VERIFICATION I hereby verify that I am the plaintiff in this action and that the facts in stated in the above answer to new matter are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S. Section 4904, relating to unsworn falsification to authorities. January -U-, 2004 LaKMO M. KELL January 17 , 2004 ANDREA E. KELLEY CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing answer to new matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: JOHN C PORTER ESQ 61 W LOUTHER ST CARLISLE PA 17013 January ZL, 2004 V _ - w %-?" HAROLD S. IRWIN, III Attorney for plaintiff 64 South Pitt Street Carlisle, PA 17013 (717) 249-2353 Supreme Court ID NO. 29920 ?-? n.> "' C7 c.? -c- _r1 '' i L, T ? ' - +yL 1 ?1 N '„ ? - !.) ? i' _ r- { .r- - w CRAIG M. KELLEY and ANDREA E. KELLEY, his wife, Plaintiffs VS. CHRISTOPHER S. - IN THE COURT OF COMMON PLEAS OF - CUMBERLAND COUNTY, PENNSYLVANIA - CIVIL ACTION - LAW and , KRISTINE L. POLKINGHORN, his wife, : NO. 03-2002 CIVIL TERM Defendants PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Harold S. Irwin, III, Esquire, counsel for plaintiffs in the above action, respectively represents that: This action is at issue. 2. The claim of the plaintiff in the action is less than $35,000.00. 3. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: HAROLD S. IRW IN, III - Attorney for Plaintiffs JOHN PORTER - Attorney for Defendants WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, 6&?- H S. IRWIN, III Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that I have served a copy of Plaintiffs' Petition for Appointment of Arbitrators by placing same in the United States mail at Carlisle, Pennsylvania, Regular Mail on this 19th day of July, 2005, addressed as follows: CHRISTOPHER B POLKINGHORN KRISTINE L POLKINGHORN 4111 COPPERFIELD DR HARRISBURG PA 171 n HAROLD S. IRWIN, III Attorney for Plaintiffs 1r 6N U? v 4 0 c V r, C o h5 ?? Ja i HAROLD S. IRWIN, 111, ESQUIRE ATTORNEY ID NO. 29920 94 SOUTH PITT STREET CARLISLE PA 17013 (717)243.6090 ATTORNEY FOR PLAINTIFF RECEIVED JUL 222005 CRAIG M. KELLEY and : IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Vs. : CIVIL ACTION - LAW CHRISTOPHER B. POLKINGHORN and : KRISTINE L. POLKINGHORN, his wife, : NO. 03 - 2002 CIVIL TERM Defendants ORDER OF COURT K NOW, this «) day of 200 , in consideration of the foregoing petition for appointment of arbitrators,, Esquire, ad12 Esquire and ?- cello ,cam Esquire are hereby appointed abbitrators in the above action as prayed for. By the ourt, i ?f'J. v? Uj S-1 '.' ; . CRAIG M. KELLEY and : IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW NO. 03-2002 CIVIL TERM CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINGHORN, his wife IN RE: ARBITRATION PANEL ORDER OF COURT AND NOW, August 30, 2005, the appointment of George Costopoulos, Esquire, as arbitrator in the above matter is vacated, and Stacy B. Wolf, Esquire, is appointed in his stead; David Baric, Esquire, shall remain as chairman of the panel, and Valerie Faden, Esquire, shall remain as arbitrator. David Baric, Esquire 19 West South Street Carlisle, PA 17013 -? Chairman of the Arbitration Panel By the Court, AAke-IN G r o r, P.J. (4.. Court Administrator <:, (- ???? Ll'- i .?_ ? ?_ ?_ _ u.S _ { _ ?U CY7 - ???? n ?3 ?? nJ r. y LL Ca ?? !_.') V N CRAIG M. KELLEY ANDREA E. KELLEY, Plaintiffs V. CHRISTOPHER B. POLKINGHORN KRISTINE L. POLKINGHORN, Defendants IN RE: APPOINTMENT OF ARBITRATORS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-2002 CIVIL TERM CIVIL TERM AND NOW, THIS ZS day of January, 2006, the appointment of Stacy B. Wolf, Esquire as arbitrator of the arbitration panel in the above-captioned matter is vacated, and Megan Malone, Esquire shall be appointed in her stead; David A. Baric, Esquire shall remain as chairman and Valerie J. Faden shall remain as arbitrator. Harold S. Irwin, Esquire 64 South Pitt Street Carlisle, Pennsylvania 17013 Stacy B. Wolf, Esquire 37 South Hanover Street, Suite 201 Carlisle, Pennsylvania 17013 Megan Malone, Esquire 401 East Louther Street Carlisle, Pennsylvania 17013 BY THE COURT Edgar B7Bayley, P.J. Valerie J. Faden, Esquire 2807 Market Street Camp Hill, Pennsylvania 17011 Christopher and Kristine Polkinghorn P.O. Box 10767 Harrisburg, Pennsylvania 17105 David A. Baric, Esquire 19 West South Street Carlisle, Pennsylvania 17013 4. HAROLD S. IRWIN, 111, ESQ ATTORNEY ID NO. 29920 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243$090 ATTORNEY FOR PLAINTIFF CRAIG M. KELLEY AND : IN THE COURT OF COMMON PLEAS OF ANDREA E. KELLEY, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. : CIVIL ACTION - LAW CHRISTOPHER B. POLKINGHORN and KRISTINE L. POLKINGHORN, his wife, : NO. 03 - 2002 CIVIL TERM Defendants PRAECIPE TO SETTLE AND DISCONTINUE To the Prothonotary: Please mark this case settled and discontinued, with prejudice. February 20, 2006 HAROLD'S. IRWIN, III Attorney for Plaintiffs 64 South Pitt Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 -? ?;; .-? ', ?_;: ?: - _ , ,. s,? r,. :y CRAIG M. KELLEY ANDREA E. KELLEY, PLAINTIFFS V. CHRISTOPHER B. POLKINGHORN KRISTINE L. POLKINGHORN, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-2002 CIVIL TERM ORDER OF COURT AND NOW, this day of January, 2009, the appointment of a Board of Arbitrators in the above-captioned case, IS VACATED. David A. Baric, Esquire, Chairman, shall be paid the sum of $50.00. David A. Baric, Esquire Court Administrator sal By the Edgar w rna??ck. 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