HomeMy WebLinkAbout01-03790
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FRED J. WEBER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CNILACTIONNO.: 01-3790
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants.
PLAINTIFF'S PRETRIAL MEMORANDUM
AND NOW, this 7th day of November, 2003, comes the plaintiff, Fred J. Weber,
by and, through his attorney, John A. Abom, Esquire, of Abom & Kutulakis and enters
this pfl)trlal Memorandum as follows:
I. Statement of the Fads as to Liability and Damages
The Plaintiff, Fred J. Weber, ("Buyer") and Leroy and Donna Ellerman,
("Sellers") entered into a written agreement ("Agreement") on January 19, 2001 to
purchase the residential real property located at 927 Grahams Woods Road, Upper
Frankford Township, Cumberland County, Pennsylvania. A true and correct photocopy
of the written agreement executed by both parties for the premises is attached hereto
and incorporated herein by reference as Exhibit "A." The property subject to the
Agreement is a residential real property consisting of approximately 17 acres ofland,
four-bedroom residence and a two car detached garage. ("Property") Pursuant to the
terms of the Agreement, the Buyer paid two deposits to the Sellers towards the purchase
price of the residential real property. The first was made on January 19, 2001 for fifteen
thousand dollars ($15,000), and the second was made on March 8,2001 for ten thousand
dollars ($10,000). Settlement was scheduled to occur on or before July 3, 2001.
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On or about March 28,2001, Buyer observed sewage percolating to the surface of
the Property. The attached colored photographs labeled as "Exhibit B" illustrate the
condition of the property shortly after the discovery of the sewage on the Property. The
problem observed by the Buyer was caused by a problem related to the residence's septic
system and/or to a drainage problem existing on the property.
By letter dated April 2, 2001, Buyer notified Sellers of his intention to void the
Agreement as a result of the sewage percolating to the surface around the Property and
demanded a return of his $25,000 deposit.
Buyer's complaint filed on June 20, 2001 prayed for relief in the amount ofthe
$25,000 paid to the Sellers, the cost ofIitigation, interest from January 19, 2001, and
attorney fees incurred in Buyer's effort to recover his property.
On November 26,2001, the Sellers filed an answer to the complaint denying
knowledge of any sewage related issue or defect on the property. Sellers also made a
counterclaim against the Buyer seeking damages allegedly suffered by the Sellers due to
the Buyer's alleged breach of the January 19, 2001 Agreement.
Pursuant to the Buyer's preliminary objections, This Honorable Court
subsequently held that the damages itemized by the Sellers in their counterclaim were not
a direct and foreseeable result of the Buyer's alleged breach of contract. See Order
Attached as Exhibit "C."
By agreement of the parties Buyer is permitted to raise the claim that Sellers
breached the contract by not going through with the sale of the Property as the written
Agreement requires.
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To date, Sellers have not returned to the Buyer his $25,000 deposit. At no time
prior to July 3,2001, did the Sellers sell or tender to the Buyer the deed to the property.
Sellers continue to reside in the property and are no longer interested in selling the
property to the Buyer at the original purchase price.
II. A Statement as to the Principal Issues of Liability and Damages
1. Known Material Defect. On June 20, 2001, the Buyer commenced the above-
captioned action seeking the return of his $25,000 deposit. Said action alleges the Sellers
violated the Real Estate Disclosure Act, Act No. 84 of 1996,68 P.S. S 1021 et. seq.l
The Complaint also alleges that the Sellers violated 68 P.S. S 1024, in that they failed to
disclose a known material defect present on the property to the Buyer. This Court must
determine whether the sewage found by Buyer on the Property was (a) known to the
Sellers and, if so, (b) whether the sewage problem is a material defect on the Property.
2. Buyer's Breach. As to the Sellers' counterclaim, this Court must determine
whether the Buyer breached the Agreement and. If so, whether the Sellers suffered any
damages not previously dismissed by this Court by Order dated February 22,2002. On
that second issue, the Court must also determine whether the $25,000 Buyer has
requested to be returned is liquidated damages.
3. Sellers' Breach. By agreement of Sellers' counsel Plaintiff is permitted to
raise the claim that Sellers breached the contract by not going through with the sale of the
Property, as the written agreement requires. Sellers themselves breached the contract
because the deed was never transferred to the Buyer and settlement never occurred. If
1 The Complaint fIrst alleges that the Sellers failed to provide the Buyer with a disclosure statemeut
substantially similar with the statement prescribed by 68 P,S. ~ 1025 (Real Estate Disclosure Act;
Disclosure Form), Bnyer now concedes that the form used complied with the Act's reqnirements.
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this Court determines that the Sellers breached the Agreement, it must then determine the
damages suffered by the Buyer. To date the Sellers continue to own and reside at the
Property.
III. Summary of Legal Issues
A. The $25,000 Buyer Demands is Not Liquidated Damages and Should be
Returned to Buyer.
The Sellers have claimed that the $25,000 Buyer is demanding to be returned is
liquidated damages and should not be returned to Buyer. That amount cannot be
characterized as liquidated damages, because liquidated damages must be explicitly
provided for within the language of the contract. And, despite drafting the contract
themselves, the Sellers, failed to include a provision for liquidated damages.
Furthermore, that amount would serve as a penalty against the Buyer rather than an
estimate of the actual damages Sellers would face if Buyer breached the contract. And, if
said damages can be classified as a penalty they are not liquidated damages and should be
returned to the Buyer.
1. The $25,000 is Not Liquidated Damages Because it Was Not
Explicitly Provided for in the Language of the Contract.
The Supreme Court of Pennsylvania has noted that liquidated damages denotes,
"the sum a party to a contract agrees to pay ifhe breaks some promise, and which,
having been arrived at by a good faith to estimate in advance the actual damage that will
probably ensue from the breach, is legally recoverable. . . if the breach occurs." Pantuso
Motors v. Corestates Bank, 798 A.2d 1277, 1282 (2002) (emphasis added). Therefore,
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the amount ofliquidated damages must be explicitly provided for within the contract so
each party can agree to pay that specific amount if responsible for a breach. Otherwise,
there will be no "meeting of the minds" with regard to liquidated damages. In this case,
the $25,000 Sellers claim is liquidated damages was not listed as liquidated damages
within the Agreement. In fact, the Agreement to Purchase Real Estate Subsection two
(2) entitled "Purchase Price" lists $15,000 as a deposit and $10,000 as an additional
deposit to be paid by March 8, 200 I. See Exhibit A. Moreover, in Subsection seven (7)
of the Agreement entitled "Buyers Default" the Sellers at their option could "declare [the]
Agreement null and void and bring suit for damages for breach of contract and bring suit
for specific performance." Id. There was no language in the contract that would indicate
the Sellers could keep the $25,000 deposit as liquidated damages if a breach did occur.
The Sellers recognized this within the letter to the Buyer dated April 17 , 200 I, which
stated they would be returning the deposits to the Seller after they sold their cabin in
Alaska. Given Sellers had opportunity to include language in the Agreement to indicate
to the Buyer that the $25,000 was liquidated damages, but chose not to, Buyer was
unaware ofthe liquidate damages and there was no "meeting of the minds." Therefore the
$25,000 is not liquidated damages for the breach of the Agreement.
2. The Language of the Contract Is to Be Construed Against the
Sellers.
During both of their depositions, each of the Sellers testified that they had drafted
the Agreement to Purchase Real Estate (D. Ellerman Dep. at 18); (L. Ellerman Dep. at
23). Within the Agreement, the $25,000 was not defined as liquidated damages, but
rather as a deposit on the property. If the Sellers argue that this term "deposit" is
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ambiguous, but rather it was also intended to mean liquidated damages, such ambiguity
must be construed against them. Because, "[ w ]here the language of the contract is
ambiguous, the provision is to be construed against the drafter." Profit Wize Marketing
v. Wiest, 812 A.2d 1270, 1275 (Pa. Super 2002). Therefore, the liquidated damages
should not be defined to mean liquidated damages.
3. Forcing Buyer to Pay $25,000 to Sellers Acts as a Penalty or
Punishment Rather Than Reflecting Actual Damage to Sellers and
Therefore Cannot Be Liquidated Damages.
Even if the Sellers are successful in arguing that the $25,000 was intended to be
liquidated damages, the $25,000 acts only as a penalty rather than a pre-estimate of
probable actual damages and should not be allowed. While the purpose ofliquidated
damages is to provide an estimate in advance of actual damages, a penalty is fixed, "not
as a pre-estimate of probable actual damages, but as a punishment, the threat of which is
designed to prevent the breach." Pantuso Motors v. Corestates Bank, 798 A.2d 1277,
1282 (Pa. 2002). The $25,000 functions as a penalty and is not a correct estimate of
actual damages. The Sellers have failed to prove that $25,000 is the amount they
estimated at the signing of the Agreement to be a fair pre-estimate of the actual damages
they would incur if the contract was breached. Furthermore this Honorable Court has
already held that the original damages claimed by Sellers were not a direct and
foreseeable result of the Buyer's alleged breach of contract. Therefore the damages
Sellers have claimed in the past could not be classified as a fair pre-estimate of the actual
damages they would suffer if a breach occurred.
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B. The Sellers Violated the Real Estate Disclosure Act By Failing to Disclose
a Material Defect.
The Sellers violated the Real Estate Disclosure Act 68 P.S. 68 P.S. ~ 1021 et. seq.
by failing to disclose a material defect, and by failing to provide to the Buyer, prior to the
signing of the Agreement the Real Estate Disclosure Form as provided for in 68 P.S. ~
1024.
The Real Estate Disclosure Act requires sellers of residential real property to
disclose to a buyer all material defects in the property. The Act defines "material defect"
as a problem with the property or any portion of the property that would have a
significant adverse impact on the value ofthe residential property or that involves an
unreasonable risk to people on the land. 68 P.S. ~ 1022 (Definitions).
At no time prior to the signing of the Agreement did Sellers indicate to Buyer that
there was a problem with their sewage system. Given the existence of the sewage, and
the problems with the septic and drainage system it is believed Sellers knew ofthe
material defect prior to the signing of the Agreement. The existence of said sewage, the
problem with the septic system and drainage problem on the Property has a significant
adverse impact on both the value of the Property and it poses an unreasonable risk to
people on the property therefore it is a material defect.
C. The Seller's Ultimately Breached the Contract Because They Never
Closed on the Subject Property.
When the Buyer informed the Sellers of the sewage percolating from the property
they still were responsible for the risk of loss or damage to the said premises according to
the Agreement which notes, "[t]he risk ofloss or damage to said premises by fire or other
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casualty until delivery of deed is to be assumed by the Sellers." Exhibit A. The deed was
never transferred to the Buyer, and thus the Sellers still bore the risk of loss. At no time
after their notice of the sewage did they offer to repair the property. As a result, Buyer
continued to demand the $25,000 be returned and the contract to be rescinded.
Identification of Witnesses to be Called
1. Fred Weber (plaintiff - Buyer)
2. Leroy E. Ellerman (Defendant - Seller)
3. Donna L. Ellerman (Defendant - Seller)
4. Neighbor (John Cunningham) - Owner of neighboring property who first pointed out
to Mr. Weber the existence of the sewage on the Property.
Exhibits
1. Agreement To Purchase Real Estate dated January 19,2001.
2. Pictures of the Property taken by Buyer. These colored photographs illustrate the
condition of the property shortly after the discovery of the sewage surrounding the
Property.
3. Sellers' Property Disclosure Statement. This exhibit will be used to prove the
data disclosed to Buyer did not contain information related to the sewage
problem.
4. Letter from Buyer to Sellers dated April 2, 2001. In this letter, the Buyer notified
the Sellers of his intention to void the Agreement as a result of the sewage
percolating to the surface around the Property and demanded a return of his
$25,000 deposit.
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5. Flyer furnished to Buyer from Sellers which illustrates the property they were
selling that is the subject of this action.
6. Letter from Sellers to Buyer dated April 17, 2001 which explains that the deposits
paid by Buyer would be returned upon the sale of their property in Alaska.
Current Status of Settlement Negotiations
Buyer and Sellers have not negotiated regarding the settlement of this matter.
AB & KUTULAKIS, L.L.P.
John A. om, Esquire
orney LD. No. 77961
36 South Hanover Street
Carlisle, PA 17013
(717) 279-0900
Attorney for Plaintiff
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FRED J. WEBER,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION NO.: 01-3790
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants.
CERTIFICATE OF SERVICE
AND NOW, this 7th day of November 2003, I, John A. Abom, Esquire, of Abom
& Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the
foregoing Plaintiff's Pretrial Memorandum upon the Defendant by first class mail at the
following location:
Douglas G. Miller, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendants
ABOM & KUTULAKIS, L.L.P.
A. Abom, Esquire
36 South Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
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Exhibit A
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AGREEMENT TO PURCHASE REAL ESTATE
THIS AGREEMENT, made this /1 day of7JA"JtN'/of'/.y , 2001,
between Leroy E. Ellerman, Sr. and Donna L. Ellerman, husbancr' and wife, of927
Grahams Woods Road, Newville, P A 17241, hereinafter called "Sellers, and
Fred J. Weber, single man, of 1645 W. Lisburn Road, Mechanicsburg, Pennsylvania
17055, hereinafter called "Buyer".
WITNESSETH:
IT IS MUTIJALL Y AGREED AS FOLLOW:
1. That the Sellers hereby agree to sell and convey to Buyer, who hereby agrees to
purchase certain real property situated at 927 Grahams Woods Road, Upper Frankford
Township, Newville, Cumberland County, Pennsylvania,
2, PURCHASE PRICE - The purchase price for said real estate is the sum of ONE [
HUNDRED FIFTY-FIVE lHOUSAND ($155,000,00) DOLLARS, payable from the
Buyer to the Seller as follows:
Deposit
$ 15,000.00
Addition Deposit By March 8, 2001-$ 10,000.00
Balance Due By July 3,2001
$ 130.000.00
TOTAL
$ 155.000.00
3. TITLE - Title is to be good and marketable, otherwise the deposit money shall be
returned in full to the Buyer, The premises are to be conveyed free and clear of all liens and
encumbrances, except restrictions and easements of record, and lor physically noticeable
street improvements, if any, and to provisions of zoning ordinances affecting the use of said
premises. The risk of loss or damage to said premises by fire or other casualty until delivery
of deed is to be assumed by the Sellers.
4. SETTLEMENT - Settlement shall be held on or before July 3,2001.
5. RIGHT - OF - WAY CONTINGENCY - This purchase is contingent upon the
result of a title search into the Adams Electric Cooperative Company right-of-way to deter-
mine whether that right-of-way in any manner adversely affects the ability of Buyer to utilize
the property. Buyer shall promptly notifY Seller of the result of his inquiry into this matter.
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6. TAXES AND ADJUSTMENTS Sellers and Buyer agree to equally divide
payment of all real estate transfer taxes. County, municipal and school real estate taxes, 3\, J
SC'i\<er ami r.erns@ shall be ltflportionea bern;een SeHers and Buyer at the elate af settlement. ,(JX V {v
7. BUYERS DEF AUL T - In the event that the Buyer shall fail or refuse to make
settlement in accordance with the terms of this Agreement, the Sellers, at their option, may
declare this Agreement null and void and bring suit for damages for breach of contract and
bring suit for specific performance,
8. SELLERS DEF AUL T - In the event that the Sellers shall fail or refuse to
make settlement in accordance with the terms of this Agreement, the Buyer at his option,
may declare this Agreement null and void and bring suit for damages for breach of contract.
and bring suit for specific performance.
9, BINDING EFFECT - For the true performance ofall and every one of the
covenants and agreements aforesaid, each of the said parties binds himself, heirs, executors
and administrators and assigns, firmly by these presents.
10. POWER OF ATTORNEY - In the event that Sellers are not present at time of
settlement, we the Sellers, will be represented by our attorney Roger B. Irwin.
WHEREFORE, the parties hereto have carefully read and considered this Agree-
ment and, intending to be legally bound thereby, acknowledge receipt of a copy of this
Agreement, having hereunto set their hand and seal this day the date first above written.
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LYE. ELLERMAN, SR., Seller
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( DONNA L. EILERMAN, Seller
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Exhibit B
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Exhibit C
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
LEROY E. ELLERMAN and: NO, 2001-3170 CIVIL TERM
DONNA 1. ELLERMAN,
Defendants
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY, GUIDO, JJ.
ORDER OF COURT
AND NOW, this
JJ.t1
day of FEBRUARY, 2002, Plaintiffs preliminary
objections to defendants' counterclaim are sustained in part and denied in part, They are
sustained insofar as the demurrer to subparagraphs (a) through G) of counterclaim
paragraph 40 is GRANTED. In all other respects they are DENIED.
Edward E. Guido, 1.
John A. Abom, Esquire
For the Plaintiff
Mark D. Schwartz, Esquire
For the Defendants
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FRED J. WEBER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, FENNSYL VANIA
V,
LEROY E. ELLERMAN and: NO. 2001-3170 CIVIL TERM
DONNA L. ELLERMAN,
Defendants
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY, GUIDO, JJ.
OPINION AND ORDER OF COURT
Gurrently before us are plaintiffs preliminary objection's in the nature of a
demlmer to defendants'counterclaim, For the reasons hereinafter stated, they will be
denied in part and granted in part.
FACTUAL BACKGROUND
On January 19, 2001, the parties entered into a written agreement whereby
plaintiff agreed to buy the defendants' residence. The agreement required a deposit of
$25,000, payable $15,000 upon execution and another $10,000 by March 8, 2001.1
Settlement was to occur on or before July 3, 2001.
On April 3, 2001, plaintiff advised defendants that he was not going to buy the
property because of certain defects that he alleged had not been disclosed as required by
the Real Estate Sellers Disclosure Act of 1996.2 Plaintiff filed this suit on June 20, 2001,
asking that the contract be rescinded and that defendants be req uired to return his $25,000
deposit.
1 The entire deposit was paid as required,
2 68 P,S. ~ 1021 et seq.
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NO. 98-2534 CIVIL TERM
Defendants filed a counterclaim in which they allege that plaintiff had no grounds
to be excused from performing the contract. They have made a claim for damages arising
out of the alleged breach of the contract. Among their claims are certain items of
consequential damages allegedly incurred because they left their jobs and moved to
Alaska in reliance upon the agreement.]
DISCUSSION
The standard to be a~plied to preliminary objections in the nature of a demurrer
was succinctly stated by our Supreme Court as follows:
A demurrer can only be sustained where the complaint is clearly
insufficient to establish the pleader's right to relief. For the purpose of
testing the legal sufficiency of the challenged pleading a preliminary
objection in the nature of a demurrer admits as tme all well-pleaded,
material, relevant facts, and every inference fairly deducible from those
facts.
Since the sustaining of a demurrer results in a denial of the pleader's claim
or a dismissal of his suit, a preliminary objection in the nature of a
demurrer should be sustained only in cases that clearly and without a
doubt fail to state a claim for which relief may be granted. (citations
omitted).
The County of Allegheny v, Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985).
Applying the above standard to the case at bar, the counterclaim clearly stfltes a cause of
action for breach of contract. However, the demurrer cannot be overruled in its entirety.
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Paragraph 40 of the counterclaim provides as follows: /
As a result of the Plaintiffs breach, the Defendants have suffered, inter alia)
the following damages:
a. travel expenses to Alaska in January 2001 including airfare, car rental,
hotel, and lost time from work for both Mr. and Mrs. Ellerman;
b. storage fees for personal belongings from Febmary 2001 through June
2001;
c, expenses for public sale of personal and household items;
J See paragraph 39 ofthe defendants' counterclaim.
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NO. 98-2534 CIVIL TERM
d, expenses for moving from Pennsylvania to Alaska in March 2001
including rental of camper expenses, insurance, fuel, lodging tolls, and
cell phone charges;
e. lost wages for Mr. EIlern1an from February 26,2001, through June 15,
2001;
f. lost wages for Mrs, Ellennan from March 9 through May 16, 2001;
g. expenses incurred while living in Alaska including drivers license and
registration fees, homeowners insurance, and utility hook-up charges:
h. expenses ofMrs, Ellennan's return to Pennsylvania and Mr.
Ellennan's retum to Pennsylvania including sale of their home in
Alaska, airline tickets and other travel expenses including fuel and
lodging;
1. expenses since Defendants return to Pennsylvania including telephone
charges, utility hook-up charges, drivers license and registration fees;
J. additional expenses including, inter alia, federal tax on liquidating
retirement benefits early,
Consequential damages are recoverable for breach of contract only ifthe
defendants can prove "the damages. , . suffered were (1) such as would nonnally and
ordinarily result from the breach, or (2) that they were reasonably foreseeable and within
the contemplation of the parties at the time they made the contract, and (3) that the
damages can be proven." (emphasis added). Commonwealth, Dept. o/Transportation v,
Cumberland Construction Company, 90 Pa. Commonwealth 273, 282, 494 A.2d 520, 525
(1985), citing Taylor v, Kaufhold, 368 Pa. 538, 546, 84 A.2d 347, 351 (1951),
In the instant case, lost wages and moving expenses to Alaska are not damages
"such as would nonnally and ordinarily result from the breach," Nor can they be
considered to be "reasonably foreseeable" even if they may have been "within the
contemplation ofthe parties." Therefore, the demurrer will be sustained as to the
consequential damages claimed in subparagraphs (a) through (j) of counterclaim
paragraph 40.
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NO. 98-2534 CIVIL TERM
ORDER OF COURT
AND NOW, this 22ND day of FEBRUARY, 2002, Plaintiffs preliminary
objections to defendants' counterclaim are sustained in part and denied in part. They are
sustained insofar as the demurrer to subparagraphs (a) through G) of counterclaim
paragraph 40 is GRANTED, In all other respects they are DENIED,
By the Court,
sl Edward E. Guido
Edward E. Guido, 1.
John A, Abom, Esquire
For the Plaintiff
Mark D, Schwartz, Esquire
For the Defendants
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v.
: IN THE COURT OF COMMON PLEAS ~~V 0 7 2003 \:J
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001 - 3790 CIVIL TERM
FRED J. WEBER,
Plaintiff
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CML ACTION - LAW
DEFENDANTS'
PRE-TRIAL MEMORANDUM
AND NOW, come the Defendants, Leroy E. Ellerman and Donna L. Ellerman, now
known as Donna L. Trout, by and through their attorneys, Irwin & McKnight, and submit the
following Pre-Trial Memorandum:
I. PROCEDURAL AND FACTUAL HISTORY OF THE CASE
Plaintiff initiated this action by Complaint filed on June 20, 2001. Plaintiff seeks the
return of monies in the amount of $25,000.00 paid to Defendants pursuant to an Agreement of
Sale and in contemplation of the purchase of that real property known and numbered as 927
Grahams Woods Road, Newville, Cumberland County, Pennsylvania (the "Property"). The
Complaint alleges that Plaintiff is entitled to a return of these monies because of a perceived
deficiency in the septic system and/or drainage at the Property. The Complaint further alleges
that Defendants failed to disclose this deficiency perceived by Plaintiff. The Complaint also
alleged a violation of the Real Estate Seller Disclosure Act, but this issue was subsequently
withdrawn by Plaintiff.
On November 26,2001, Defendants filed an Answer with New Matter and Counterclaim.
Defendants assert in their New Matter, among other items, that they stood ready and willing to
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convey to Plaintiff good and marketable title to the Property. Defendants further pled that they
have never experienced any problems with the septic system and did not have any reason to
know of any problems with the system. Instead, Defendants assert that it was actually the
Plaintiff who breached the written agreement by refusing to complete the purchase of the
Property.
On December 18, 2001, Plaintiff filed preliminary objections to the Defendants'
Counterclaim. Following briefs and argument, the preliminary objections were sustained in part
and denied in part by Order of Court dated February 22, 2002. The Order dismissed
subparagraphs (a) through (j) of Defendants' Counterclaim paragraph forty (40). The remaining
provisions of Defendants' Counterclaim remained intact.
Plaintiff then filed two replies to Defendant's New Matter, the first on March 14, 2002,
and the second on September 4, 2002. These replies contain several conflicting responses, but
generally Plaintiff denies that he breached the Agreement and denies that the septic system was
in working order. In light of these new matter defenses, Defendants also deny that Plaintiff is
entitled to return of the deposit monies under the contract.
On September 17, 2002, Plaintiff filed a Motion for Summary Judgment, which
following briefs and argument was denied by Order of Court dated December 5, 2002.
The depositions of Defendants were held on February 14, 2003, and the deposition of
Plaintiff was held on September 22,2003.
II. STATEMENT AS TO ISSUES INVOLVED
Defendants have consistently denied that they breached the agreement for the sale of the
Property, and assert that they are entitled to retain the deposit monies paid by Plaintiff.
2
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With regard to breach of contract, the Agreement of Sale signed by the parties was not
contingent upon the performance of any inspections. After unilaterally determining that he did
not wish to purchase the property, Plaintiff instructed his legal counsel at the time to notif'y
Defendants that he was declaring the agreement void. There was no contingency permitting such
a declaration. Nor did Plaintiff obtain any expert report or verification of any malfunction in the
septic system. Defendants have consistently asserted that they never experienced any problems
with the septic and drainage systems, even after subsequent improvements were made to the
Property.
With regard to remedy, Defendants assert that Plaintiff was not able to purchase the
property immediately, but was also aware that they were moving to Alaska. In fact, it was
because of the Defendants' desire to move to Alaska that they were selling the Property.
Defendants needed funds in advance to facilitate their move. It was in part due to these reasons
that the large deposit of $25,000.00 was agreed to by the parties. As a result of the Plaintiff's
refusal to purchase the Property, Defendants were then forced to quickly sell the home they had
built and property in Alaska and return to Pennsylvania. Defendants are no longer in possession
of the bulk of the deposit monies, and assert that they are entitled to retain the same because of
the Plaintiff's actions in this matter.
Defendants may also file a pre-trial motion to permit amendment to their Counterclaim in
order to preserve for consideration and possible appeal their claims for damages incurred as a
result of the moves to and back from Alaska as a direct consequence of Plaintiff's actions in this
matter.
3
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III. WITNESSES
Defendants anticipate calling the following persons as witnesses:
a. Defendant Leroy E. Ellerman;
b. Defendant Donna 1. Ellerman, now known as Donna 1. Trout; and
c. Plaintiff Fred 1. Weber.
Defendants reserve the right to call any witnesses identified by Plaintiff, persons
referenced in any of the pleadings, discovery or depositions, or to produce rebuttal witnesses.
IV. EXHIBITS
Defendants anticipate presenting the following exhibits as evidence at trial:
a. Agreement to Purchase Real Estate;
b. Seller's Property Disclosure Statement;
c. Receipt from D.E.W. & Sons dated March 16,2001 for pumping of septic tank;
d. Correspondence from H. Anthony Adams, Esquire dated Apri12, 2001;
e. Various photographs of the subject Property; and
f. Various receipts and itemizations of expenses incurred by Defendants.
Defendants reserve the right to present any additional exhibits that have been referenced
in any of the pleadings, discovery or depositions, or as rebuttal evidence.
V. SETTLEMENT NEGOTIATIONS
The parties have had limited settlement negotiations in the past which were not
successful. The potential for ongoing settlement negotiations exist and legal counsel for the
parties are currently exploring those options.
4
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VI. CONCLUSION
Defendants respectfully seeks the entry of a judgment in their favor, dismissing the
Complaint filed by Plaintiff.
Respectfully Submitted,
IRWIN & McKNIGHT
By:
Douglas . M' er, squire
Supreme Court l.D. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants
Date: November 7,2003
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CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by fIrst class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
John A. Abom, Esquire
Abom & Kutulakis
36 South Hanover Street
Carlisle, P A 17013
Date: November 7, 2003
IRWIN & McKNIGHT
d)= xJ ,Ai1fJA,
Douglas G. . er, Esquire
Supreme Court LD. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants
.;
FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2001- 3790 CIVIL TERM.
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this
day of
, 2001, upon consideration of
Defendants Preliminary Objections to Plaintiffs Complaint, it is hereby ORDERED that said
objections are sustained and Plaintiff s Complaint is dismissed with prejudice.
BY THE COURT,
J.
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. ZOOI - 3790 CIVIL TERM
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
PRELIMINARY OBJECTIONS OF DEFENDANTS
TO PLAINTIFF'S COMPLAINT
AND NOW, this 17th day of August, 2001, comes Defendants, LEROY E. ELLERMAN
and DONNA 1. ELLERMAN, his wife, by and through their attorneys, Irwin, McKnight &
Hughes, and make the following Preliminary Objections to Plaintiffs Complaint, and in support
thereof avers the following:
I. Preliminary Objection for Failure of Pleading to Conform to Law or Rule of Court
Pursuant to Pa. R. Civ. P.I0Z8(a)(Z).
1. In his Complaint, Plaintiff alleges that the Defendants did not provide him with a
disclosure form substantially similar to that prescribed by The Real Estate Sellers Disclosure
Act. 68 P.S. ~~ 1024-1025.
2. In Paragraph Nineteen (19), however, Plaintiff does state that the Sellers did
provide a disclosure form, but alleges that it is not substantially similar to the form prescribed by
The Real Estate Sellers Disclosure Act.
*
3. Plaintiff further alleges that a photocopy of said disclosure form is attached to his
Complaint as Exhibit B.
4. Exhibit B, however, is merely a one page document on which it is explicitly stated
that it is page one of a total of two pages.
5. Pa. R.Civ.P. No. 1019(i) requires that when any claim is based upon a writing, the
pleader shall attach a copy ofthe writing, or the material part thereof.
6. Plaintiffs Complaint fails to set forth or attach the complete writing, and
presumably the portion which addresses the septic system at issue, upon which the allegation of
failure to conform with The Real Estate Sellers Disclosure Act is based.
7. Defendants therefore preliminarily object to the Complaint on the grounds that it
fails to conform to Pa. R.Civ.P. No. 1019(i) in that it fails to attach the complete writing upon
which the Plaintiff relies.
WHEREFORE, the Defendants, LEROY E. ELLERMAN and DONNA L.
ELLERMAN, his wife, respectfully request this Honorable Court to grant their Preliminary
Objection on the grounds that the Complaint fails to conform to law and rule of court, and
therefore the Complaint of the Plaintiff, FRED 1. WEBER, should be dismissed.
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II. Preliminary Objection in the Nature of a Demurrer Pursuant to Pa. R. Civ. P.
1028(a)(4).
8. Defendants hereby incorporate by reference paragraphs one (1) through seven (7)
inclusive of these preliminary objections as though fully set forth herein.
9. In support of his allegations, Plaintiff relies upon the provisions of The Real
Estate Sellers Disclosure Act, 68 P.S. ~ 1021 et seq.
10. Specifically, Plaintiff alleges that although Defendants provided him with a
disclosure form, it was not substantially similar to the form prescribed by the Act as set forth at
68 P.S. ~ 1025.
II. Plaintiff, however, fails to set forth any facts supporting his allegation that the
disclosure form provided by the Defendants is not substantially similar to the form prescribed by
the Act.
12. Defendants therefore preliminarily object in the nature of a demurrer to the
Complaint on the grounds that it fails to state any cause of action against Defendants upon which
relief may be granted under The Real Estate Sellers Disclosure Act upon which Plaintiff relies.
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WHEREFO~, the Defendants, LEROY E. ELLERMAN and DONNA L.
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ELLERMAN, his wife, respectfully request this Honorable Court to grant their Preliminary
I
Objection in the nanire of a demurrer and dismiss Plaintiffs Complaint.
Respectfully Submitted,
IRWIN, McKNIGHT & HUGHES
By:
Dated: August 17, 2([)01
Roger . ,Esquire
Supreme ID # 06282
Mark D. Schwartz, Esquire
Supreme Court ID # 70216
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorneys for Defendants
J!
FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2001 - 3790 CIVIL TERM
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Roger B. Irwin, Esquire, do hereby certify that I have served a true and correct copy of
the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
John A. Abom, Esquire
Abom & Kutulakis
8 South Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
Date: August 17,2001
IRWIN, McKNIGHT & HUGHES
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Roger B. I . Esquire
Supreme Court 1.0. No. 06282
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants
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FRED J. WEBER,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION NO.: 01-3790
LEROY E. ELLERMAN AND
DONNA L. ELLERMAN,
DEFENDANTS
ORDER OF COURT
AND NOW, this _ day of September 2002, upon consideration of the within Motion
for Summary Judgment, said Motion is hereby GRANTED.
BY THE COURT,
J.
John A. Abom, Esquire
Mark Schwartz, Esquire
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FREDJ. WEBER,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CML ACTION NO.: 01-3790
LEROY E. ELLERMAN AND
DONNA L. ELLERMAN,
DEFENDANTS
TO THE HONORABLE JUDGES OF SAID COURT:
MOTION FOR SUMMARY JUDGMENT
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AND NOW, this ~ day of September, 2002, comes the plaintiff, Fred]. Weber,
by and through his attorney, John A. Abom, Esquire, and files this Motion for Summary
Judgment, pursuant to Pa.R.C.P. 1035.2 as follows:
1. On January 19, 2001, Defendants/Sellers and Plaintiff/Buyer entered into a
written agreement (hereinafter referred to as "Agreement") to purchase the residential real
property located at 927 Grahams Woods Road, Upper Frankford Township, Cumberland
County, Pennsylvania. (Complaint ~5; Answer'\[5 (Admitted)).
2. A true and correct photocopy of the Agreement was attached to the Complaint as
Exhibit A. (Answer ~5 (Admitted)).
3. The Plaintiff paid to the Defendants a deposit of $25,000 in two installments on
January 19, 2001 and on March 8, 2001, (Complaint~~ 7 and 8, andAnswer~7 (Admitted)
and ~8 (Admitted)), in accordance with ~2 of the Agreement.
4. On June 20,,2001, the Plaintiff filed the Complaint in the instant action seeking a
rescission of the Agreement to Purchase Real Estate and the return of $25,000 in the
deposit monies the Plaintiff paid to the Defendants in January and March, 2001.
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5. On November 26, 2001, the Defendants filed an Answer, New Matter and a
Counterclaim, seeking monies the Defendants allegedly spent moving to Alaska in reliance
on the Plaintiffs Agreement to purchase the property at 927 Grahams Woods Road and
monies spent returning to Pennsylvania from Alaska upon learning of the Plaintiffs desire
not to purchase the same property.
6. On December 18, 2001, the Plaintiff filed Preliminary Objections to the
Defendant's Counterclaim in the form of a Demutter, and on February 22, 2002, the
Plaintiffs Preliminary Objections were sustained insofar as the consequential damages
claimed by Defendants in paragraphs (a) through G) of paragraph 40 of the Defendants'
Counte~claim due to the Plaintiffs alleged breach of contract.
I. MOTION FOR RETURN OF THE DEPOSIT MONIES DUE TO THE
DEFENDANTS/SELLERS BREACH OF THE AGREEMENT TO
PURCHASE REAL ESTATE
7. Paragraphs one (1) through six (6) are incorporated herein by reference.
8. According to the terms of the Agreement, the Plaintiff was to buy and the
Defendants were to sell the subject property on or before July 3, 2001. (Exhibit A, 'll4 to the
Complaint).
9. To date, the Defendants have not sold the subject property to the Plaintiff and
the Plaintiff has not purchased the property from the Defendants. (Defendants' New
Matter, 'll31; Defendants' Counterclaim, 'll38).
10. To date, the $25,000 deposit has notbeen returned by the Defendants to the
Plaintiff. (Complaint 'll24, Answer 'll24 (Admitted)).
11. One or both Defendants continue to reside at the property subject to the
Agreement. (Complaint'll'll 3-4; Answer 'll'll3-4 (Admitted)).
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WHEREFORE, the plaintiff respectfully requests that this Motion for Summary
Judgment be granted as no genuine issue as to any material fact exists as to whether the
Defendants breacheq -,r4 of the Agreement. As such the Plaintiff is entitled to a judgment as
a matter of law directing the return of the $25,000 deposit plus interest from July 3, 2001.
II. MOTION TO RECIND THE AGREEMENT TO PURCHASE REAL
PROPERTY AND FOR THE RETURN OF THE DEPOSIT MONIES
DUE TO THE DEFENDANTS' VIOLATION OF THE REAL ESTATE
SELLERS DISCLOSURE ACT
12. Paragraphs one (1) through ten (10) are incorporated herein by reference.
13. The Real "Estate Sellers Disclosure Act, Act No. 84 of 1996, was enacted on July
2, 1996 and became effective on August 2, 1996, and was in effect at all times pertinent to
the facts in this matter.' 68 P.S. 5 1021 et. seq.
14. The Real Estate Sellers Disclosure Act requires sellers of residential real property
to disclose to a buyer all material defects with the property prior to the signing of the written
agreement for the purchase of the property on a form prescribed by 68 P.S. 51025 or on a
form sitnilar to the form prescribed by 68 P.S. 51025. 68 P.S. 5 1024.
15. At no time prior to the signing of the Agreement did the Defendants complete
and deliver to the Plaintiff the disclosure form as prescribed by 68 P.S. 51025 (Real Estate
Disclosure Act; Disclosure Form).
16. At no time prior to the signing of the Agreement did the Defendants complete
and deliver to the Plaintiff a disclosure form similar to the form prescribed by 68 P.S. 51025
(Real Estate Disclosure Act; Disclosure Form).
17. Prior to the execution of the Agreement, the Defendants made some disclosures
to the Plaintiff on an outdated (1993) disclosure form. (Defendants' New Matter -,r30 and
Exhibit A to the Defendants' Answer, New Matter and Counterclaim).
'Act 114 0[2000, which b~came effective on December 20, 2001, repealed 68 P,S, ~1021 et. seq,
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18. This Court may determine, as a matter oflaw, whether the disclosure form
provided to the Plaintiff by the Defendants was substantially similar to the form prescribed
bylaw.
WHEREFORE, the plaintiff respectfully requests that this Motion for Summary
Judgment be granted as there is no genuine issue as to any material fact and the Plaintiff is
entided to judgment as a matter of law directing the rescission of the Agreement and the
return of the $25,000 deposit plus interest EromJanuary 19, 2001, as the Defendants failed to
comply with the provisions of 68 P.s. ~1025.
Respectfully submitted,
ABOM & KUTULAKIS, L.L.P.
J ' . Abom, Esquire
tomey ID. No. 77961
8 South Hanover Street; Suite 204
Carlisle, PA 17013
(717) 279-0900
Attornry for Plaintiff
FRED J. WEBER,
PLAINTIFF
V.
LEROY E. ELLERMAN AND
DONNA L. ELLERMAN,
DEFENDANTS
~-~-....., - , < ~
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION NO.: 01-3790
CERTIFICATE OF SERVICE
c.;r.--
AND NOW, this r:f day of September 2002, I, John A. Abom,
Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and
correct copy of the foregoing MOTION FOR SUMMARY JUDGMENT
upon the Defendant by first class mail at the following location:
Mark Schwartz, Esquire
Irwin, McKnight & Hughes,
60 West Pomfret Street
Carlisle, P A 17013
Attornry for Defendants
ABOM & KUTULAKIS, L.L.P.
--
J 0 . Abom, Esquire
outh Hanover Street, Suite 204
Carlisle, P A 17013
Attornry for Plaintiff
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FRED J. WEBER,
Plaintiff,
vs.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA
NO. 0/- 379() C()lCT~
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants.
CIVIL ACTION -LAW
NOTICE TO DEFEND
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 for relief
requested by the Plaintiff. You may lose money or property or other rights impOrtilllt
to you.
YOU SHOULD TAKE TIllS 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 Lawyer Referral Service
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
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NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas sigiuentes, usted tiene veinte (20) dias de plazo al
partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia
escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas
o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no
se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo
aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de
demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes
para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATEMENTE. SI
NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE
PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A
LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA
A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Lawyer Referral Service
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION NO.: o/..37'lO c.:vu~
V.
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants
COMPLAINT
Today comes, Plaintiff, Fred J. Weber, by and through his attorneys, Abom &
Kutulakis, LLP, who files this Complaint seeking the return of $25,000 he paid to the
Defendants as a deposit towards the purchase of residential real property, plus interest,
costs and attorney fees, because of the Defendants' failure to comply with the
Pennsylvania Real Estate Seller Disclosure Act by failing to disclose a material defect on
the property, and in support thereof avers the following:
1. Plaintiff, Fred J. Weber, (hereinafter referred to as "Buyer") is an adult
individual who currently resides at 1645 West Lisburn Road, Momoe Township,
Cumberland County, Pennsylvania.
2. Defendant Leroy E. Ellerman is an adult individual whose last known
address is 927 Grahams Woods Road, Upper Frankford Township, Cumberland County.
3. Defendant Donna L. Ellerman is an adult individual who address is 927
Grahams Woods Road, Upper Frankford Township, Cumberland County.
4. It is believed and therefore averred that the two defendants (hereinafter
referred to as "sellers") are lawfully married and are husband and wife,
5. On January 19, 2001, Sellers and Buyer entered into a written agreement
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(hereinafter referred to as "Agreement") to purchase the residential real property located
at 927 Grahams Woods Road, Upper Frankford Township, Cumberland County,
Pennsylvania. A true and correct photocopy of the written agreement is attached as
Exhibit A.
6. The property subject to the Agreement is residential real property
consisting of approximately 17 acres of land, a two story, four bedroom residence and a
two car detached garage.
7. According to the terms of the Agreement, Buyer paid to Sellers a deposit
of fifteen thousand dollars ($15,000) on January 19, 2001, towards the purchase price of
the residential real property.
8. According to the terms of the Agreement, Buyer paid to Sellers an
additional deposit of $10,000 on or about March 8, 2001, towards the purchase price of
the real estate.
9. On or about March 28,2001, Buyer observed sewage percolating to the
surface of the residential real property in a location near the above-described residence.
10. It is believed and therefore averred that the problem observed by the buyer
was caused by a problem related to the residence's septic system and/or to a drainage
problem existing on the property.
11. At no time prior to the signing of the Agreement between the Sellers and
the Buyers did the Sellers disclose to the Buyer any sewage-related problem existing on
the residential real property.
12. The Real Estate Sellers Disclosure Act, Act No. 84 of 1996, was enacted
on July 2,1996 and became effective on August 2,1996. 68 P.S. S 1021 et. seq.
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13. The Real Estate Sellers Disclosure Act requires sellers of residential real
property to disclose to a buyer all material defects with the property prior to the signing of
the written agreement for the purchase of the property. 68 P.S. g 1024.
14. The Real Estate Sellers Disclosure Act defines "material defect" as a
problem with the property or any portion of the property that would have a significant
adverse impact on the value of the residential real property or that involves an
unreasonable risk to people on the land. 68 P.S. g 1022 (Definitions).
15. The Real Estate Sellers Disclosure Act requires sellers of residential real
property to disclose to a buyer all material defects with the property prior to the signing of
the written agreement for the purchase of the property on a form prescribed by 68 P.S.
g1025 or on a form similar to thdorm prescribed by 68 P.S. g1025. 68 P.S. g 1024.
16. The Sellers did not disclose to the Buyer the material defect on the
property described in paragraphs 9 and 10.
17. At no time prior to the signing of the Agreement did the Sellers complete
and deliver to the Buyer a disclosure form as prescribed by 68 P.S. g 1 025 (Real Estate
Disclosure Act; Disclosure Form).
18. At no time prior to the signing of the Agreement did the Sellers complete
and deliver to the Buyer a disclosure form that is substantially similar to the form
prescribed by 68 P.S. g 1025 (Real Estate Disclosure Act; Disclosure Form).
19. Sellers did provide to the Buyer a disclosure form that is not substantially
similar to the form prescribed by the Real Estate Sellers Disclosure Act. A photocopy of
that disclosure form is attached as Exhibit B.
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Motion for Return ofPropertv
20. The averments of the previously numbered paragraphs are incorporated
herein by reference.
21. The existence of the percolating sewage, the problem with the septic
system and drainage problem on the residential real property has a significant adverse
impact on the value of the residential real property and poses an unreasonable risk to
people on the property.
22 The existence of the percolating sewage, the problem with the septic
system and drainage problem is of such a serious nature that is believed and therefore
averred that the Sellers knew of and were aware of the material defect prior to and at the
time of the signing of the written Agreement for the purchase of the property.
23 By letter dated April 2, 2001, Buyer notified Seller of his intention to void
the Agreement and demanded a return of his $25,000 deposit.
24 To date, Sellers have not returned to the Buyer his $25,000 deposit.
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WHEREFORE, PlaintiIDBuyer requests this Court to order the written
Agreement for the Sale of the residential real property at 927 Grahams Woods Road to be
null and void and Plaintiff further demands judgment in his favor in the amount of
amount of $25,000, costs oflitigation, interest from January 19,2001, and attorney fees
incurred in his effort to recover his property.
Respectfully submitted,
-----
(/ABO~~ U
)3-1: JoM A.
t//
C,' ,~.I~"__'
, )<
FRED J. WEBER,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA
vs.
NO.
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendant.
CIVIL ACTION - LAW
VERIFICATION
I, Fred J. Weber, hereby verify that the facts set forth in the foregoing are
true and correct to the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties
of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities.
F
Date:
~ ~'
CERTIFICATE OF SERVICE
AND NOW, this 20th day of June 2001, I, John A. Abom, Esquire, ofABOM &
KUTULAKIS, UP, hereby certify that I did serve a true and correct copy of the foregoing
Complaint, upon the Defendant and upon Defendant's counsel by depositing, or causing to
be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to
the following:
Roger Irwin, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, P A 17013
Date: June 20, 2001
o
orney for Plaintiff
8 South Hanover Street
Suite 204
Carlisle, P A 17013
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EXHIBIT A
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AGREEMENT TO PURCHASE REAL ESTATE
THIS AGREEMENT, made this If day of-:::r;~u-""II.f/ , 2001,
between Leroy E. Enerman, Sr. and Donna L. Ellerman, husband" and wife, of927
Grahams Woods Road, Newville, PA 17241, hereinafter called "Sellers, and
Fred J. Weber, single man, of 1645 W. Lisburn Road, Mechanicsburg, Pennsylvania
17055, hereinafter called "Buyer".
WITNESSETH:
IT IS MUTUALLY AGREED AS FOLLOW:
1. That the Sellers hereby agree to sell and convey to Buyer, who hereby agrees to
purchase certain real property situated at 927 Grahams Woods Road, Upper Frankford
Township, Newville, Cumberland County, Pennsylvania.
2. PURCHASE PRICE - The purchase price for said real estate is the sum of ONE L
HUNDRED FIFTY-FIVE THOUSAND ($155,000.00) DOLLARS, payable from the
Buyer to the Seller as follows:
Deposit
$ 15,000.00
Addition Deposit By March 8,2001-$ 10,000.00
Balance Due By July 3,2001
$ 130.000.00
TOTAL
$ 155.000.00
3. TITLE - Title is to be good and marketable, otherwise the deposit money shall be
returned in full to the Buyer. The premises are to be conveyed free. and clear of all liens and
encumbrances, except restrictions and easements of record, and lor physically noticeable
street improvements, if any, and to provisions of zoning ordinances affecting the use of said
premises. The risk of loss or damage to said premises by fire or other casualty until delivery
of deed is to be assumed by the Sellers.
4. SETTLEMENT - Settlement shall be held on or before July 3, 2001.
5. RIGHT - OF - WAY CONTINGENCY - This purchase is contingent upon the
result of a title search into the Adams Electric Cooperative Company right-of-way to deter-
mine whether that right-of-way in any manner adversely affects the ability of Buyer to utilize
the property. Buyer shall promptly notify Seller of the result of his inquiry into this matter.
'1 ;' II'
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6. TAXES AND ADJUSTMENTS - Sellers and Buyer agree to equally divide
payment of all real estate transfer taxes. County, municipal and school real estate taxes, 5\ '" )
.sev/er and refuse sllall1le appeftiened between SelkJ s and DUY<lf at the Elate af settlement. Jh.. ?!!/ {AJ
7. BUYERS DEF AUL T - In the event that the Buyer shall fail or refuse to make
settlement in accordance with the terms of this Agreement, the Sellers, at their option, may
declare this Agreement null and void and bring suit for damages for breach of contract and
bring suit for specific performance.
8. SEILERS DEFAULT -In the event that the Sellers shall fail or refuse to
make settlement in accordance with the terms of this Agreement, the Buyer at his option,
may declare this Agreement null and void and bring suit for damages for breach of contract
and bring suit for specific performance.
9. BINDING EFFECT - For the true performance of all and every one of the
covenants and agreements aforesaid, each of the said parties binds himself, heirs, executors
and administrators and assigns, firmly by these presents.
10. POWER OF ATTORNEY - In the event that Sellers are not present at time of
settlement, we the Sellers, will be represented by our attorney Roger B. Irwin.
WHEREFORE, the parties hereto have carefully read and considered this Agree-
ment and, intending to be legally bound thereby, acknowledge receipt of a copy of this
Agreement, having hereunto set their hand and seal this day the date first above written.
~~ O'~~
Witness .
~s~
Witne /
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LYE. ELLERMAN, SR., Seller
OJ/'
( DONNA L. ELLERMAN, Seller
L
Buyer
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EXHIBIT B
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19:22
TX/RX NO.6035
P.007
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SHERIFF'S RETURN - REGULAR
CASE NO: 2001-03790 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WEBER FRED J
VS
ELLERMAN LEROY E ET AL
DOUGLAS DONS EN
, Sheriff or Deputy Sheriff of
Cumberland County,pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
ELLERMAN LEROY E
the
DEFENDANT
, at 1310: 00 HOURS, on the 12th day of July
, 2001
at 927 GRAHAMS WOODS RD
NEWVILLE, PA 17241
by handing to
LEROY ELLERMAN
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
3.90
.00
10.00
.00
31.90
r~~
R. Thomas Kline
07/13/2001
ABOM & KUTULAKIS
Sworn and Subscribed to before
By:
Q~O~
Deputy Sheriff
me this :l3/lod day of
q17 ;Lbv; A.D.
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P ot:honotary
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SHERIFF'S RETURN - REGULAR
CASE NO: 2001-03790 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WEBER FRED J
VS
ELLERMAN LEROY E ET AL
DOUGLAS DONS EN;
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the withiin COMPLAINT & NOTICE
was served upon
ELLERMAN DONNA, L
the
DEFENDANT
, at 1208:00 HOURS, on the 12th day of July
, 2001
at 350 E HIGH ST
CARLISLE, PA 17013
by handing to
DONNA ELLERMAN
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
3.25
.00
10.00
.00
19.25
r~~-t:~
R. Thomas Kline
07/13/2001
ABOM & KUTULAKIS
Sworn and Subscribed to before
By:
Q+a~
Deputy Sheriff
me this .;z:3ML day of
C).J7 .2#J/ _A.D.
n'~L O. ~o/f'i
'- .:t7~thonotary
~
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\
FRED WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL V ANlA
V.
LEROY ELLERMAN and
DONNA ELLERMAN
Defendants
01_ -1790
No. Civil Action 2001
PRAECIPE FOR USING CASE FORARUGMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer
to complaint, etc.):
Defendants' Preliminary Objections.
2. Identify counsel who will argue case:
(a) For plaintiff: John A. Abom, Esquire
Abom & Kutulakis, L.L.P.
Suite 204
8 South Hanover Street
Carlisie, P A 17013
(b) For defendants: Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013
3. I will notify all parties in writing within two days that this case has been
listed for argument.
4. Argument Court Date: October 24, 2001
/
'--""-"'-'-
Dated: September 13, 2001
Jo 'A :Abom
orney for: Plaintiff
<, '1.>", -'.,_
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- ,
FRED WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
LEROY ElLERMAN and
DONNA ElLERMAN
Defendants
No. Civil Action 2001
CERTIFICATE OF SERVICE
AND NOW, this I?:y of s:.;4',",~2001, I,)ohn A.
Abom, Esquire, by and through ABOM dKUTULAKIS, hereby certify that I
did serve a true and correct copy of the foregoing Praecipe For Listing Case
For Argument, upon the below listed counsel of record and/or parties by
depositing, or causing to be deposited, same in the United States Mail, First-
class mail, postage prepaid addressed to the following:
Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013
Date: September 13, 2001
ABOM & KUTULAKIS, L.L.P.
)0 Abom
orney for: Plaintiff
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2001 - 3790 CIVIL TERM
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
TO: FRED J. WEBBER
c/o JOHN A. ABOM, ESQUIRE
8 SOUTH HANOVER STREET, STE 204
CARLISLE, PA 17013
cKNIGHT & HUGHES
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NOTICE TO PLEAD
YOU ARE HEREBY NOTIFIED that you must responsively plead to the withfu.
Defendants' New Matter and Counterclaim, pursuant to Pa. R.C.P. 2252(d) within twenty (20)
days after service, or a default judgment may be entered against you.
By:
Mark D. Schwartz, Esquire
60 West Pomfret Street
Carlisle, P A 17013
717-249-2353
Supreme Court LD. No: 70216
Attorney for Defendants,
Leroy E. Ellerman and
Donna L. Ellerman
, , - . p, "~''''- "" "~""~' ,.',- ~ --,,-.~"'-" '," ", I. ~ w<'';;'-~~i
FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2001 - 3790 CIVIL TERM
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
ANSWER WITH NEW MATTER AND COUNTERCLAIM
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. After reasonable investigation, Defendants are without sufficient knowledge or
information to form a belief as to the truth of this allegation and therefore it is specifically
denied.
10. Denied. By way of further reply, it is denied that the Defendants' knew or had
reason to know of an existing septic system and/or a drainage problem on the property.
11. Admitted in part, denied in part. It is admitted that Defendants did not disclose to
Plaintiff that any sewage-related problem existed on the property. It is denied that Defendants
knew or had reason to know that a sewage-related problem existed on the residential real
property prior to the signing of the Agreement or at any time relevant herein.
2
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12. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
further answer, the Defendants complied in all respects with the applicable provisions of the Real
Estate Sellers Disclosure Act.
13. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
further answer, the Defendants complied in all respects with the applicable provisions of the Real
Estate Sellers Disclosure Act.
14. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
further answer, the Defendants complied in all respects with the applicable provisions of the Real
Estate Sellers Disclosure Act.
15. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
further answer, the Defendants complied in all respects with the applicable provisions of the Real
Estate Sellers Disclosure Act.
16. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
further answer, the Defendants complied in all respects with the applicable provisions of the Real
Estate Sellers Disclosure Act.
17. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
3
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further answer, the Defendants complied in all respects with the applicable provisions of the Real
Estate Sellers Disclosure Act.
18. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
further answer, the Defendants complied in all respects with the applicable provisions of the Real
Estate Sellers Disclosure Act.
19. This allegation is a conclusion of law to which no response is required. To the
extent that an answer is deemed necessary this allegation is specifically denied. By way of
further answer, the Defendants complied in all respects with the applicable provisions ofthe Real
Estate Sellers Disclosure Act.
20. Defendants incorporate herein by reference their responses in paragraphs 1
through 19 as stated above.
21. Denied as stated. By way of further reply, it is denied that a problem with the
septic system or drainage on the property exists and that any such problem has an adverse impact
on the value of the property or poses an unreasonable risk to people.
22. Denied as stated. By way of further reply, it is denied that the Defendants knew
or had reason to know of any sewage or drainage problem at the time of signing of the
Agreement or at any time relevant herein.
23. Denied as stated. It is admitted that a letter dated April 2, 2001, was authored by
counsel for Plaintiff. It is specifically denied that Defendants in any way breached the
Agreement between the parties to permit Plaintiff to unilaterally void the Agreement.
4
.
---""
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24. Admitted in part, denied in part. It is admitted that the Defendants have not
returned the $25,000 deposit. It is denied that Defendants are required to return the deposit
monies to Plaintiff under the Agreement.
WHEREFORE, the Defendants, Leroy E. Ellerman and Donna L. Ellerman, respectfully
request this Honorable Court to enter judgment in its favor and against the Plaintiff and dismiss
Plaintiffs Complaint.
NEW MATTER
By way of further defense and response, the Defendants aver the following new matter:
25. Defendants incorporate herein by reference their responses to paragraphs 1
through 24 as stated above.
26. At all times relevant herein, Plaintiff was aware of the Defendants' intentions to
sell the property located at 927 Grahams Woods Road, Upper Frankford Township, Cumberland
County, in order to facilitate the Defendants move to the State of Alaska.
27. At all times relevant herein, the Defendants complied with all terms of the
Agreement between the parties dated January 19,2001.
28. Defendants stood ready to convey good and marketable title in accord with the
Sales Agreement at all times from January 19, 2001 through July 3, 2001.
29. At all times relevant herein, the Defendants complied with all applicable
provisions of the Real Estate Sellers Disclosure Act.
30. The Defendants provided an appropriate disclosure in accordance with the Real
Estate Sellers Disclosure Act with the provision of a signed Sellers Property Disclosure
5
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above.
6
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37. The Plaintiff was obligated to purchase the property and provide the balance of
$130,000.00 owed to the Defendants by July 3, 2001, pursuant to the parties Agreement dated
January 19,2001
38. The Plaintiff failed to purchase the property or pay the balance of the $130,000.00
owed under the Agreement by July 3, 2001. The Agreement between the parties included no
contingencies with exception of a right of way contingency, that would permit Plaintiff from
unilaterally voiding the Agreement. Plaintiff's actions mounted to a breach of the Agreement
dated January 19,2001.
39. As a result of Plaintiff unilaterally voiding the contract, Defendants sold their
home in Alaska and moved back to Pennsylvania.
40. As a result of the Plaintiff's breach, the Defendants have suffered, inter alia, the
following damages:
a. travel expenses to Alaska in January 2001 including airfare, car rental, hotel, and
lost time from work for both Mr. and Mrs. Ellerman;
b. storage fees for personal belongings from February 2001 through June 2001;
c. expenses for public sale of personal and household items;
d. expenses for moving from Pennsylvania to Alaska in March 2001 including rental
of camper expenses, insurance, fuel, lodging, tolls, and cell phone charges;
e. lost wages for Mr. Ellerman from February 26,2001 through June 15,2001;
f. lost wages for Mrs. Ellerman from March 9 through May 16, 200 I;
g. expenses incurred while living in Alaska including drivers license and registration
fees, homeowners insurance, and utility hook-up charges;
7
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h. expenses of Mrs. Ellerman's return to Pennsylvania and Mr. Ellerman's return to
Pennsylvania including sale of their home in Alaska, airline tickets and other travel expenses
including fuel and lodging;
1. expenses since Defendants return to Pennsylvania including telephone charges,
utility hook-up charges, drivers license and registration fees;
j. additional expenses including, inter alia, federal tax on liquidating retirement
benefits early.
WHEREFORE, Defendants ask judgment in their favor and in an amount in excess of
$25,000.00 said amount being the jurisdictional limit for referral to mandatory arbitration.
By: Mark. Schwartz, Esquire
Attorney LD. No. 70216
60 West Pomfret Street
Carlisle, Pennsylvania 17013
717-249-2353
Counsel for Defendants, Leroy E. Ellerman and
Donna L. Ellerman
Date: November 26,2001
8
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VERIFICATION
We have read the statements made in the foregoing document and they are true and
correct to the best of our knowledge, information and belief. We understand that false statements
herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn
falsification to authorities.
~~~
~y E. ELLERMAN .
iJ/~
I DONNA L. ELLERMAN
Date: November 26 . 2001
EXHIBIT" A"
.--'" SEU.ER'S PROPF.IITY DISCLOSURE ST" TF.MENT
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2001 - 3790 CIVIL TERM
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I the undersigned hereby certifY that on this 26th day of November, 2001, a copy of the
foregoing document was served by first-class, postage prepaid United States mail in Carlisle,
Pennsylvania upon the following:
John A. Abom, Esquire
ABOM & KUTULAKIS
8 South Hanover Street, Ste 204
Carlisle, PA 17013
IRWI M~HT & HUGHES
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: CIVIL ACTION NO.: 61-31"l1l
01- 3190 'c.,,:\
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants
ORDER OF COURT
AND NOW, this _ day of
, 200-, upon consideration of the
Plaintiff's Preliminary Objection to the Defendants' Counterclaim, it is hereby
ORDERED AND DECREED that said Objection is sustained and the Defendants'
Counterclaim is dismissed with prejudice.
J.
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FRED 1. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
. : CUMBERLAND COUNTY, PENNSYLVANIA
V.
: CIVIL ACTION NO.: 01-3170
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants
PRELIMINARY OBJECTI0N OF PLAINTIFF TO DEFENDANTS' COUNTERCLAIM
IN THE NATURE OF A DEMURRER
Today comes Plaintiff, Fred J. Weber, by and through his attorneys, Abom &
Kutulakis, LLP, who files this Preliminary Objection to the Defendants' Counterclaim
and in support thereof, avers as follows:
1. On June 20, 2001, the Plaintiff filed the instant action seeking recovery of
the deposit monies he paid to the Defendants n January and March, 2001, that had been
paid to the Defendant's as a deposit for the purchase of real property located at 927
Grahams Woods Road, Upper Frankford Township, Cumberland County.
2. On or about August 17,2001, the Defendant filed preliminary objections
to the Plaintiff's Complaint.
3. On or about October 22,2001, the Defendants withdrew their preliminary
objections.
4. On or about November 26, 2001, the Defendants filed an Answer, New
Matter and a Counterclaim.
5. The Defendant's counterclaim seeks reimbursement of monies the
Defendants' allegedly spent moving to Alaska in reliance on the Plaintiff's Agreement to
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purchase the property at 927 Grahams Woods Road and from Alaska upon learning of the
Plaintiff's desire not to purchase the same property.
6. The Defendants' counterclaim fails to state a claim for which relief can be
granted because the damages sought are not the type of injuries, which are recoverable as
a matter of law in this breach of contract action.
WHEREFORE, Plaintiff respectfully requests this Court to grant his Preliminary
Objection in the nature of a demurrer and dismiss the Defendants' Counterclaim.
Respectfully submitted,
y: 000 A. Abom
ttorney I.D. No. 77961
Attorney for the Plaintiff
8 South Hanover Street
Carlisle, P A 17013
(717) 249-0900
.
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FREDJ. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: CIVIL ACTION NO.: 01-3170
LEROY E. ELLERMAN and
DONNA 1. ELLERMAN,
Defendants
CERTIFICATE OF SERVICE
I, John A. Aborn, do hereby certifY that I have served a true and correct copy of
the foregoing document upon Mark D. Schwartz, Esquire, Attorney for the Defendants by
handcarrying a copy to his law office located at 60 West Pomfret Street, Carlisle, P A
17013.
/;J. //6/0 (
B' ohn A. Aborn
Attorney LD. No. 77961
Attorney for the Plaintiff
8 South Hanover Street
Carlisle, P A 17013
(717) 249-0900
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FRED WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
LEROY EllERMAN and
DONNA ELLERMAN
Defendants
CIVIL ACTION NO.: 04-J.HO
Q f- '3"190
e."ll,<{~.
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
1. Matter to be argued:
Plaintiff's prelitninary objections to Defendant's Counterclaim.
2. Counsel who will argue:
(a) For plaintiff: John A. Abom, Esquire
Abom & Kutulilis, L.L.P.
Suite 204
8 South Hanover Street
Carlisle, P A 17013
(b) For defendants: Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Potnfret Street
Carlisle, P A 17013
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4.
Argument Court Date:
February 13,2001
Dated: January /{3 .2002
. I;.." "~.
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FRED WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUN1Y, PENNSYL V ANlA
V.
CNIL ACTION NO.: 01-3170
LEROY ELLERMAN and
DONNA ELLERMAN
Defendants
CERTIFICATE OF SERVICE
AND NOW, this/~ day of ~~ 2002, I,John A. Abom, Esquire, by
and through ABOM & KUTULAKIS, hereby ce' that I did serve a true and correct copy
of the foregoing Praecipe for Usting Case for Argument, upon the below listed counsel of
record and/or parties by depositing, or causing to be deposited, same in the United States
Mail, First-class mail, postage prepaid addressed to the following:
Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, P A 17013
Date: January &, 2002
ABOM & KUTULAKIS, L.L.P.
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Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
1\~b
v.
.3,70
: CIVIL ACTION NO.: Ol~
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
BRIEF OF THE PLAINTIFF
I. SUMMARY OF THE FACTS
On January 19,2001, the Plaintiff, Fred Weber, entered into an Agreement with the
Defendants, Leroy and Donna Ellerman, for the purchase by the Plaintiff of the residential real
property located at 927 Grahams Woods Road, Upper Frankford Township, Cumberland County,
Pennsylvania, owned by the Defendants. A true and correct photocopy of the written agreement
is attached as Exhibit A. The property subject to the Agreement is residential real property
consisting of approximately 17 acres Qfland, a (two/three) story, four-bedroom residence and a
two-car detached garage.
In accordance with the terms of the Agreement, the Plaintiff paid to the Defendants a
deposit of twenty-five thousand dollars ($25,000) toward the purchase of the property, in two
installments. The plaintiff paid the first installment of fifteen thousand dollars ($15,000) on
January 19,2001, and the second installment of$10,000 on or about March 8, 2001.
The Agreement set forth that the settlement date for the sale of the property was to be
held on or before July 3, 2001.
On or about March 28, 2001, the Plaintiff observed sewage percolating to the surface of
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the residential real property.
By letter dated April 2, 2001, from Plaintiff's then-counsel, Anthony Adams, Esquire, the
Plaintiff notified the sellers of his intention to void the Agreement and demanded a return of his
$25,000 deposit. A true and correct copy of said letter is attached as exhibit B.
By letter dated May 21, 2001, undersigned counsel forwarded a letter to the Defendants'
counsel, again requesting repayment of the Plaintiff's $25,000 deposit.
On June 20, 200 I, the Plaintiff commenced the above-captioned action seeking the return
his $25,000 deposit. Said action alleges the Defendants' two separate violations of the Real
Estate Disclosure Act, Act No. 84 of 1996,68 P.S. 9 1021 et. seq.. The Complaint first alleges
that the Defendants failed to provide the Plaintiff with a disclosure statement substantially
similar with the statement prescribed by 68 P.S. 9 1025 (Real Estate Disclosure Act; Disclosure
Form). The Complaint also alleges that the Defendants violated 68 P.S. 9 1024, in that they
failed to disclose a known material defect present on the property to the Plaintiff.
On November 26,2001, the Defendants filed a counterclaim against the ,Plaintiff seeking
damages allegedly suffered by the Defendants due to the Plaintiff's alleged breach of the January
19,2001 Agreement. Defendant's Counterclaim at Paragraph 39 and 40. The damages sought
by the Defendants as a consequence of the Plaintiff's alleged breach include among other items:
(a) travel expenses, including airfare and RV expenses, and moving expenses for multiple trips
to and from Alaska; (b) lost wages for both defendants for the period of time each defendant
spent in Alaska; (c) storage fees for personal belonging from February 2001 to June 2001; and
(d) living expenses incurred while the Defendants lived in Alaska.
On December 18, 200 I, the Plaintiff filed this preliminary objection in the nature of a
demur asserting that the damages sought by the Defendants in paragraph 40 of their complaint
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are not recoverable in this breach of contract action.
II. ISSUE:
Whether the damages sought within the Defendants' counterclaim can be considered a
direct and foreseeable result of the Plaintiff s alleged breach of contract?
III. DISCUSSION
Loss is not recoverable on ground of contract breach where there is no causal relationship
between breach and loss. Robinson Protective Alarm Co. v. Bolger & Picker, 516 A.2d 299,512
Pa. 116. (1986).
Damages suffered must be direct and foreseeable results of breach. MoWer v. Jeke, 595
A.2d 1247,407 Pa.Super. 478 (1991). For excample, a former medical student's costs oflearning
Spanish and traveling to and from Mexico in anticipation of attending medical school in
Caribbean were not direct and foreseeable result of any breach on medical school's part. Reimer
v. Tien, 514 A.2d 566, 356 Pa.Super. 192 (1986).
Consequential damages, to be recoverable, must have been reasonably foreseeable at the
time that the contract was made. Frank B. Bozzo. Inc. v. Electric Weld Division ofFt. Pitt
Bridge Division of Spang Industries. Inc., 423 A.2d 702, 283 Pa.Super. 35 (1980); Rusiski v.
Pribonic, 474 A.2d 624, 326 Pa.Super.545 (1984). It is necessary in order to charge a party with
a particular loss that the loss be one that ordinary follows the breach of such a contract in the
usual course of events or is one that reasonable men in the position of the parties would have
foreseen as a probable result of the breach. Frank B. Bozzo. Inc. v. Electric Weld Division ofFt.
Pitt Bridge Division of Spang Industries. Inc., 423 A.2d 702, 283 Pa.Super. 35 (1980).
~\
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Consequential damages for breach of contract cannot be recovered unless they were
reasonably foreseeable and within the contemplation of the parties at the time they made the
contract and can be proved with reasonable certainty. Protection Service. Inc. v. Bro~ 98
Dauph. 359 (Pa.Com.PI. 1976).
In this case, the Defendants have claimed that the Plaintiff's letter of April 2, 2001 caused
them to reverse their permanent move to Alaska and seeks damages for all moving and travel
expenses and other items incurred before and after April 2, 200 I. This counterclaim does not
seek the recovery for losses that would normally follow such a breach of the Agreement for Sale.
It is not reasonable to conclude that the April 2, 200 1 letter caused the losses requested. Instead,
it was the Defendants' decision to return to their Cumberland County home, instead of relisting
the property for sale, that caused such losses. The Plaintiff informed the Defendants three
months prior to the proposed settlement date of his intention to not to purchase the property. The
Defendants made no effort to sell the property at all nor did they seek to reply to the Plaintiff's
correspondence by counteroffereing or even demanding full payment. The Defendants made no
effort to mitigate their alleged damages.
Respectfully submitted,
_--ABO KUTULAKIS
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EXHIBIT A .
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AGREEMENT TO PURCHASE REAL ESTATE
THIS AGREE:MENT, made this /f day of-::r;;~U,""f1.Y , 2001,
between Leroy E. Ellerman, Sr. and Donna L. Ellerman, husband" and wife, of927
Grahams Woods Road, Newville, PAl 7241, hereinafter called "Sellers, and
Fred J. Weber, single man, of 1645 W.Lisbum Road, Mechanicsburg, Pennsylvania
17055, hereinafter called "Buyer".
WITNE S SE TH:
IT IS MUTUALLY AGREED AS FOLLOW:
1. That the Sellers hereby agree to sell and convey to Buyer, who hereby agrees to
purchase certain real property situated at 927 Grahams Woods Road, Upper Frankford
Township, Newville, Cumberland County, Pennsylvania.
2. PURCHASE PRICE - The purchase price for said real estate is the sum of ONE [
HUNDRED FIFTY-FIVE THOUSAND ($155,000.00) DOLLARS, payable from the
Buyer to the Seller as follows:
Deposit
$ ,15,000.00
Addition Deposit By March 8, 2001-$ 10,000.00
Balance Due By July 3, 2001
, $ 130.000.00
TOTAL
$ 155.000.00 '
3. TITLE - Title is to be good and marketable, otherwise the deposit money sha1I be
returned in full to the Buyer. The premises are to be conveyed free and clear of all liens and
encumbrances, except restrictions and easements of record, and lor physically noticeable
street improvements, if any, and to provisions of zoning ordinances affecting the use of said
premises. . The risk of loss or damage to said premises by fire or other casualty until delivery
of deed is to be assumed by the Sellers.
4. SETTLEMENT - Settlement shall be held on or before July 3, 2QO 1.
5. RIGHT -OF - WAY CONTINGENCY - This purchase is contingent upon the
result of a title search into the Adams Electric Cooperative Company right-of-way to deter-
mine whether that right-of-way in any manner adversely affects the ability of Buyer to utilize
the property. Buyer shall promptly notify Seller of the result of his inquiry into this matter.
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6. TAXES AND ADJUSTMENTS - Sellers and Buyer agree to equally divide
payment of all real estate transfer taxes. County, municipal and school real estate taxes, 3\
-sewer and r-e.fuse sllall be llfll'lertioned between SeHera and Dtrycr at the date of settlement. ~ V {A.
7. BUYERS DEF AUL T - In the event that the Buyer shall fail or refuse to make
settlement in accordance with the terms of this Agreement, the Sellers, at their option, may
declare this Agreement null and void and bring suit for damages for breach of contract aild
bring suit for specific performance.
8. SELLERS DEF AUL T - In the event that the Sellers shall fail or refuse to
make settlement in accordance with the terms of this Agreement, the Buyer at his option,
may declare this Agreement null and void and bring suit for damages for breach of contract
and bring suit for specific performance.
9. BINDING EFFECT - For the tnJe performance ofall and every one of the
covenants and agreements aforesaid, each of the said parties binds himself, heirs, executors
and administrators and assigns, firmly by these presents.
10. POWER OF ATTORNEY - In the event that Sellers are not present at time of
settlement, we the Sellers, will be represented by our attorney Roger B. Irwin.
WHEREFORE, the parties hereto have carefi.illy read and considered this Agree-
ment and, intending to be legally bound thereby, acknowledge receipt ofa copy of this
Agreement, having hereunto set their hand and seal this day the date first above written.
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Witness '
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LYE. ELLERMAN, SR.,rSeller
f)J/
{ DONNA L. ELLERMAN, Seller
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Buyer
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EXHIBIT B
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LAW OFFICE
H. ANTHONY ADAMS
128 EAST KING STREET. SUITE A
SHIPPENSEURG. PENNSYL'V:.~ 17257
TELEPHONE (717) 532.3270
FAX (7171 532.8673
April 2, 2001
Leroy E. Ellerman, Sr.
Donna L. Ellerman
927 Grahams Woods Road
Newville, PA 17241
Dear Mr. & Mrs. Ellerman:
As you may remember, I represent Mr. Fred J. Weber. During a recent
trip to the property, Mr. Weber discovered that your seepage bed is seriously
malfunctioning and is very close to a stream. He was able simply by looking at
the bed to see sewage on the surface of the ground. A closer examination
shows that the entire drain field is little more than a marsh of decaying sewage.
There is obvious concern that any rain will wash contaminants into the stream.
Given this horrific discovery, we are declaring the agreement of January
19, 2001 void. Please immediately return the $25,000.00 that you are holding in
escrow.
Sincerely,
t~J
H. Anthony Adams
HM; dms
cc: Mr. Weber
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EXHIBIT C
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ABOM & KUTULAKIS
ATTORNEYS AT LAW
May 21,2001
Roger Irwin, Esquire
Irwin McKnight & Hughes
60 West Pomfret Street
Carlisle, P A 17013
Re: Agreement for Sale
927 Grahams Woods Road
Newville, PA 17241
Dear Mr. Irwin:
I am writing to confirm our telephone discussion on Friday, May 18,
2001. As you know, I represent Fred Weber who gave your clients, Leroy and
Donna Ellerman, a total of $25,000 as a deposit towards the purchase of the
home and property at 927 Grahams Woods Road in Upper Frankford
Township, Cumberland County. At this time, Mr. Weber is requesting the
Ellermans to repay to him the $25,000 he paid as a deposit, interest on the
$25,000 and reasonable attorney fees he incurred-in recovering his deposit.
As we discussed, Mr. Weber does not intend to purchase the home and
property at 927 Grahams Woods Road due to sewage and drainage problems
on the property. The Ellermans had a legal duty to disclose to Mr. Weber the
material defects of which one or both were aware and to disclose that
information on a form prescribed within Tide 68 of the Pennsylvania Statutes
prior to the signing of the agreement for sale. The disclosure form used by the
Ellermans was a preprinted form that dated back to 1991 and the legislation
prescribing a specific form for disclosing information became effective in
September of 1996. The new form is far more detailed and requests
information pertinent to the drainage issues preexisting on this property.
As to whether you clients were aware of the serious problems involving
the property's drainage and septic system, considering the close proximity of
the open sewage bed to the house and mowed area of the lawn, its size and the
fact that at least one neighboring property owner was aware of the problems,
Mr. Weber frods it nearly impossible to believe that the Ellermans did not
know of the septic and drainage problems prior to the signing to the agreement
for sale.
8 SOUTH HANOVEJt STREET, SUITE 204
CAlli.ISLE. PA 17013
(717) 249-0900
FAX (717) 249-3344
1 06 WALNUT STREET
HAlUUSRURG. PA 17101
(717) 232-9511
I
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I am hopeful that you will have the opportunity to discuss this matter
with the Ellermans. Should you or they have any questions or concerns, please
call me. In any event, Mr. Weber would like to know the Ellermans' position
regarding the payment of his monies by Monday, June 4, 2001. After June 4,
Mr. Weber has asked me to proceed to court to recover his money now in the
Ellermans' possession.
Sincerely,
AB' M
Cc: Fred Weber
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FRED WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
LEROY ELLERMAN and
DONNA ELLERMAN
Defendants
CERTIFICATE OF SERVICE
7L---
AND NOW, this -LL- day of i?6c?l/k. 2002, I, John A.
Abom, Esquire, by and through ABOM & KUTU S, hereby certify that I
did serve a true and correct copy of the foregoing ef in Support of
Preliminary Objections, upon the below listed counsel of record and/or parties
by hand delivering a copy addressed to the following:
Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, PA 17013
Date: February 11, 2002
AB...D-M&-KtJ
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itto ey for: Plaintiff
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2001 - 3790 CIVIL TERM
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
DEFENDANTS' BRIEF IN OPPOSITION TO THE PLAINTIFF'S
PRELIMINARY OBJECTION TO DEFENDANTS' COUNTERCLAIM
And now comes Defendants', Leroy E. Ellerman and Donna L. Ellerman, by and through
their attorneys, Irwin, McKnight & Hughes, who put forth the following in support of their Brief
In Opposition to Plaintiff's Preliminary Objections:
I. STATEMENT OF CASE
The parties, on January 19,2001, entered into a written Agreement of Sale for residential
real property located at 927 Grahams Woods Road, Upper Frankford Township, Cumberland
County, Pennsylvania. A complete copy of said Agreement is attached hereto and incorporated
herein as Exhibit "A".
According to the terms of the Agreement of Sale, Plaintiff Buyer was to pay to
Defendants Seller an initial deposit in the amount of Fifteen Thousand ($15,000.00) Dollars
toward the purchase of the property. In addition, Plaintiff was to pay an additional deposit of
Ten Thousand ($10,000.00) Dollars on or before March 8, 2001. Plaintiff complied with those
terms and deposited Twenty-Five Thousand ($25,000.00) Dollars with the Defendants.
At the time of the signing of the Agreement of Sale on January 19, 2001, Plaintiff did not
wish to immediately purchase the property, but expressed a desire to postpone settlement until
July of 2001. The Defendants could not wait to settle until the summer of2001, as they had
plans to move to Alaska and needed certain funds to facilitate their move. The parties, in part
due to those reasons, agreed to the above deposit of Twenty-Five Thousand ($25,000.00)
Dollars.
With the exception of a right-of-way contingency, which was adequately met, the
Agreement of Sale was not contingent upon any inspections or any other terms or circumstances
whatsoever. After determining unilaterally that he did not wish to purchase the property,
Plaintiff, by letter from his counsel, notified the Defendants that he was declaring the Agreement
of Sale void. As noted, there was no contingency with regard to the Agreement of Sale which
gave Plaintiff the option to declare the Agreement void. Therefore, Defendant Buyer was in
default pursuant to Paragraph 7 of the Agreement of Sale when he refused to make settlement in
accord with the terms of the Agreement.
As a result of the breach and failure of Plaintiff to pay Defendants the remaining One
Hundred Thirty Thousand ($130,000.00) Dollars due under the contract by July 3, 2001,
Defendants were unable to maintain their new homestead in Alaska and were forced to retum to
Pennsylvania.
The Defendants, in reliance on the Agreement of Sale and as a direct result of Plaintiff's
breach of said Agreement, incurred significant damages as a natural and probable consequence
of said breach.
After the filing of a Complaint by Plaintiff and an Answer with New Matter and
Counterclaim by Defendants, the Plaintiff filed the instant Preliminary Objections to Defendants'
Counterclaim. Plaintiff, through his counsel, filed a Praecipe for Listing Case for Argument with
the Court on January 18, 2002, for the upcoming Argument Court scheduled for February 13,
2002. As the moving party pursuant to C.C.R.P. S 210-6, Plaintiff was to have filed a brief with
2
this Court on February 1,2002. According to the Cumberland County Rules of Procedure, this
Court has the authority to deny Plaintiff's Preliminary Objections to Defendants Counterclaim
for the sole reason that a brief was not filed. However, counsel for Plaintiff apparently filed a
brief on Monday, February 11,2002, with the Court in support of the Plaintiff's Preliminary
Objections. The undersigned counsel received a copy of said brief on Monday, February 11,
2002, and submits the following brief in opposition to Plaintiffs Preliminary Objections.
II. OUElSTIONSPRESENTED
A. Whether Defendants have adequately pled in their Counterclaim a claim for
certain damages upon which relief can be granted where the Plaintiff was aware of
the Defendants' intentions to move to Alaska at the time the contract was formed?
Suggested Answer: Yes.
III. ARGUMENT
A preliminary objection in the nature of a demurrer is subject to Pa.R.C.P. No.1 028(a)( 4)
which provides for the "legal insufficiency of a pleading" and allows the Court to dismiss the
claim because of a failure to state a claim upon which relief can be granted.
The Supreme Court of Pennsylvania has eXplained that the standard of review for a
preliminary objection in the nature of a demurrer is to assume as true the averments of the
complaint, except as to the extent that they constitute conclusions of law. Cafazzo v. Central
Medical Health Services, 542 Pa. 526, 668 A.2d 521 (pa. 1995).
The substantive issue in the instant action concems whether Defendants have adequately
pled a claim for damages in their counterclaim against Plaintiff. The Plaintiff in support of his
Preliminary Objections argues that the recovery for losses demanded by Defendants would not
normally follow a breach of an Agreement of Sale. It of course iswell established that in order
3
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for a loss to be recoverable under a breach of contract claim, there must be a causal relationship
between the breach and the loss. Robinson Protective Alarm
512 Pa. 116, 516 A.2d 299, 303 at Footnote 9 (1986).
As noted in Plaintiff's Brief, in order to be recoverable any consequential damages
resulting from a breach of contract must have been reasonably foreseeable at the time the
contract was made. Rusiski v. Pribonic, 474 A.2d 624 (Pa. Super. 1984). In order for the
losses to be recoverable, they must have been within the contemplation of the parties at the time
the contract was entered into. As noted in Defendants' New Matter at Paragraph 26, Plaintiff
was aware at the time of the formation of the contract of the Defendants' intentions to use the
proceeds from the sale to facilitate a permanent move to Alaska. In fact, this very circumstance
necessitated the specific structure of the deposits and the final settlement date. It was also
contemplated that the Agreement of Sale was not subject to any contingencies by which the
buyer could void the sale prior to the fmal date set for settlement. In reliance on the certainty of
the Agreement of Sale and its language, Defendants moved forward with their relocation to the
state of Alaska. It necessarily flows and is a foreseeable result of Plaintiffs breach that
Defendants would not be able to continue to remain in Alaska without the majority of the
finances ($130,000.00) from the sale of their Pennsylvania home.
Plaintiff attempts to argue that Defendant's did not mitigate their damages nor make a
counteroffer with regard to Plaintiff's April2, 2001, letter which unilaterally declared the
Agreement of Sale null and void. This argument is specious in that the Plaintiff did not allow for
any type of negotiation or mediation with regard to the Agreement of Sale, but rather,
unilaterally declared it null and void in complete contradiction to the terms of the Agreement of
Sale.
4
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The issues of whether or not Defendants should have taken a different course of action
with regard to the Plaintiff s breach, are issues of fact for the jury whether or not they were
reasonable under the circumstances and can be raised by Plaintiff as defenses to Defendants'
Counterclaim. On their face, these damages are certainly causally related to the breach and were
reasonably foreseeable to both parties at the time of the inception of the Agreement of Sale. The
damages requested by Defendants are recoverable under the allegations as pled in Defendants'
New Matter and Counterclaim.
IV. CONCLUSION
In light of the above, the Defendants, Leroy E. Ellerman and Donna L. Ellerman,
respectfully request that this Honorable Court deny the Preliminary Objections of Plaintiff, Fred
J. Weber, to Defendants' Counterclaim, or in the altemative, grant Defendants the opportunity to
amend their Counterclaim to more specifically plead facts necessary to support the requested
damages.
Respectfully submitted,
By:
Date: 2 -rz - () Z
ar D. Schwartz, Esquire
Supreme Court ill # 70216
60 West PomfTet Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants
5
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EXHIBIT "A"
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AGREEMENT TO PURCHASE REAL ESTATE
rIDS AGREEMENT, made this day of , 200],
betvteen Leruy E. EIler-.nan, Sr. and Donllla L~ EIIt:nn.t.n, hu$b.and and wife, of92.7
Grahams Woods Road, Newvllle, P A 17241, hereinafter called "Sell",." and
F..... J. Weber, single man, of 1645 W. Lisburn Road, Med..nicsburg, Pennsylvania
17Q55, hereinafter caIIe1I "Buy..".
WHN1.SSETfu
IT IS MUTUALLY AGREfD AS FOLLOW:
I. That the SelI= hereby agree ", sell and C<>JW<y to Buyer, wlID hereby agrees to
purcbase certain real property situale1l at <n7 Grahams Woods Road, Upper Frnnkford
Towmbip, Newville, Cumbedand County, P""""YlvllI1ia.
2. PI JRrJ:I"Afi:FI PRICE - The pm-clI3se price for said real estate is. the sumafONE
HUNDRED FJFTV,FJVE THOUSAl\lD ($155,000.00) DOLLARS, payable from the
Buyer to the Seller a, follows:
Depo<it
.---$ 15,000.00
Addition DO{losit By March 8, 2001---$ 10,000,00
Bol"""e Due By July 3,2001
$ 13000000
TOTAL
$ 155.000.00
3. TlTLl! - TIde is to be good and marketable, otherwise the deposit money _ be
retunl<<I in full to tho Buyer. The promi... .... to b. conveyed :tree and c1ea.. of all Hens and
encumbrances, except .restrictions .and e&$Af'n-.t~ of recol'"lt and 10J physjcaUy noticeable
street improvements, if""Y, and to provisions of zoniog ordinan<:e. alllocting the us. of said
premi.... The risk afloss or damage to said pr=iseo by lire or other casualty UDtiI delivery
of deed ill to be 0S0Ull1ed by the SeIlm>.
4. SETTLEMENT - Settlem<mt sball beheld on or befnr.July3, 2001.
5, RI<TIIT - OF - WAY CONTINGENCY - Thi. purcllase i. contingent upon tbe
result of.ll title earcl1 into the Adams. RJecrnc Coope.mtiw Company right-of-way to detec-
mine ,wether that right-of-way in any _ adversely ~s the ability of Buyer to utili",
the prGpony, Buyer sball promptly n~ Seller Of the resull ofl.s inquiIy into tbisllJlllter.
04/17/01 19:22
TX/RX NO.6035
- _~ ,",_I -"'"
P.005
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6, TAXES AWl) ADJUSTMENTS - Sclkrll and Buyer agree to equally divide
payment ofaU real estate transfer taXP.S. County" municipal and schOOl real estate tzDj:ElS, /}:?4:.- ~.L. J
~fW~r ,..~ ~'o""\'~aJll;re,~pe~O!led e~i~.~ .€~ets afWl~~~at~_~t,a ~~!Igtt}l!~M.J/"-" ~
7, BUYERS DEFAULT -In lite event that the Buyer shall f.illor ,efuseto make
settlement.in a.ccordance with the terms of this Agreement, the SeUers~ at thejr option, may
declare this Ageement null and void and bring suit for damages f{lJ' b.-reach of contract and
bring suit fo, specific petfunnance.
8 Sf' 1 PRSDEFAULT - In the event that the Sellers shan tail or refuse to
make settlement in ~ with the tem>. of tbis Agrecm<:m. the BuJ'1'I' at hi. option,
lDlly declare this Agreement nult and void and bring suit fur damages for b,oach of contract
and bring suit for .pecific perfofIIlllllCe.
9 BINDING EFFECT - For the Ime pedlmoanee ofall and every one of the
covenants and agreement:;: aforesaid,. each of the said patties binds bim.s01f. heirs, executors
and admiTristrators and ass.igl.l~ iimdy by these presents_
10. POWER OF ATTORNEY - In the event that Seners are not present at time of
settlement, we the Sellers, will be represented by our attorney RoOger B. Irwin.
WlIEllEFORE, the parties hereto have carefully read and considered this Agree-
ment and, intellding to be legally bound thereby, acknowledge reecipt ofa copy oftbls
Agreement, bJ;v,ng hereuntG set their hand and ...u this day the date Ii... above ""ri<too.
'111CClLy 0.. '-1>ti~
Witness ' ~
-/.<4 ff
-DONNAL. ELLERMAN, SOller
L_._...'{: WA~. .-4.
---riiirOY E. ELI.ERMAN. SR., s.n..
tEf;t,fIL
04/17/01 19:22
TX/RX NO.6035
P.006
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t-,
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2001 - 3790 CIVIL TERM
LEROY E. ELLERMAN and
DONNA L. ELLERMAN, his wife,
Defendants
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I the undersigned hereby certify that on this 12th day of February, 2002, a copy of the
foregoing document was served by hand delivery and fIrst-class, postage prepaid United States
mail in Carlisle, Pennsylvania upon the following:
John A. Abom, Esquire
Abom & Kutulakis
8 South Hanover Street
Suite 204
Carlisle, P A 17013
6
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1- '."Ii-;
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
3+90 p'~ s~'''Y @ r,<;,~ :",,,
LEROY E. ELLERMAN and: NO. 2001-3+% CNIL TERM
DONNA L. ELLERMAN,
Defendants
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY, GUIDO, JJ.
AND NOW, this
ORDER OF COURT
dJ.~ day of FEBRUARY, 2002, Plaintiff's preliminary
objections to defendants' counterclaim are sustained in part and denied in part. They are
sustained insofar as the demurrer to subparagraphs (a) through G) of counterclaim
paragraph 40 is GRANTED. In all other respects they are DENIED.
Edward E. Guido, J.
~ A. Abom, Esquire
For the Plaintiff
~ark D. Schwartz, Esquire
For the Defendants
topie.f:> ff,\ed
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FRED J. WEBER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
LEROY E. ELLERMAN and: NO. 2001-3170 CIVIL TERM
DONNA 1. ELLERMAN,
Defendants
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
BEFORE BAYLEY. GUIDO, JJ.
OPINION AND ORDER OF COURT
Currently before us are plaintiff's preliminary objection's in the nature of a
demurrer to defendants' counterclaim. For the reasons hereinafter stated, they will be
denied in part and granted in part.
FACTUAL BACKGROUND
On January 19, 2001, the parties entered into a written agreement whereby
plaintiff agreed to buy the defendants' residence. The agreement required a deposit of
$25,000, payable $15,000 upon execution and another $10,000 by March 8, 2001.1
Settlement was to occur on or before July 3, 2001.
On April3, 2001, plaintiff advised defendants that he was not going to buy the
property because of certain defects that he alleged had not been disclosed as required by
the Real Estate Sellers Disclosure Act of 1996.2 Plaintiff filed this suit on June 20, 2001,
asking that the contract be rescinded and that defendants be required to return his $25,000
deposit.
I The entire deposit was paid as required.
268 P.S. ~ 1021 et seq.
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NO. 98-2534 CIVIL TERM
Defendants filed a counterclaim in which they allege that plaintiff had no grounds
to be excused from performing the contract. They have made a claim for damages arising
out of the alleged breach of the contract. Among their claims are certain items of
consequential damages allegedly incurred because they left their jobs and moved to
Alaska in reliance upon the agreement.3
DISCUSSION
The standard to be applied to preliminary obj ections in the nature of a demurrer
was succinctly stated by our Supreme Court as follows:
A demurrer can only be sustained where the complaint is clearly
insufficient to establish the pleader's right to relief. For the purpose of
testing the legal sufficiency of the challenged pleading a preliminary
objection in the nature of a demurrer admits as true all well-pleaded,
material, relevant facts, and every inference fairly deducible from those
facts.
Since the sustaining of a demurrer results in a denial of the pleader's claim
or a dismissal of his suit, a preliminary objection in the nature of a
demurrer should be sustained only in cases that clearly and without a
doubt fail to state a claim for which relief may be granted. (citations
omitted).
The County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985).
Applying the above standard to the case at bar, the counterclaim clearly states a cause of
action for breach of contract. However, the demurrer cannot be overruled in its entirety.
Paragraph 40 of the counterclaim provides as follows:
As a result of the Plaintiff's breach, the Defendants have suffered, inter alia,
the following damages:
a. travel expenses to Alaska in January 2001 including airfare, car rental,
hotel and lost time from work for both Mr. and Mrs. Ellerman;
,
b. storage fees for personal belongings from February 2001 through June
2001;
c. expenses for public sale of personal and household items;
3 See paragraph 39 of the defendants' counterclaim.
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NO. 98-2534 CIVIL TERM
d. expenses for moving from Pennsylvania to Alaska in March 2001
including rental of camper expenses, insurance, fuel, lodging tolls, and
cell phone charges;
e. lost wages for Mr. Ellerman from February 26,2001, through June 15,
2001;
f. lost wages for Mrs. Ellerman from March 9 through May 16, 2001;
g. expenses incurred while living in Alaska including drivers license and
registration fees, homeowners insurance, and utility hook-up charges:
h. expenses of Mrs. Ellerman's return to Pennsylvania and Mr.
Ellerman's return to Pennsylvania including sale of their home in
Alaska, airline tickets and other travel expenses including fuel and
lodging;
1. expenses since Defendants return to Pennsylvania including telephone
charges, utility hook-up charges, drivers license and registration fees;
J. additional expenses including, inter alia, federal tax on liquidating
retirement benefits early.
Consequential damages are recoverable for breach of contract only if the
defendants can prove "the damages. . . suffered were (1) such as would normally and
ordinarily result from the breach, or (2) that they were reasonably foreseeable and within
the contemplation ofthe parties at the time they made the contract, and (3) that the
damages can be proven." (emphasis added). Commonwealth, Dept. of Transportation v.
Cumberland Construction Company, 90 Pa. Commonwealth 273, 282, 494 A.2d 520, 525
(1985), citing Taylor v. Kaufhold, 368 Pa. 538, 546, 84 A.2d 347, 351 (1951).
In the instant case, lost wages and moving expenses to Alaska are not damages
"such as would normally and ordinarily result from the breach." Nor can they be
considered to be "reasonably foreseeable" even ifthey may have been "within the
contemplation ofthe parties." Therefore, the demurrer will be sustained as to the
consequential damages claimed in subparagraphs (a) through (j) of counterclaim
paragraph 40.
3
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'~ NO. 98-2534 CIVIL TERM
ORDER OF COURT
AND NOW, this 22ND day of FEBRUARY, 2002, Plaintiff's preliminary
objections to defendants' counterclaim are sustained in part and denied in part. They are
sustained insofar as the demurrer to subparagraphs (a) through (j) of counterclaim
paragraph 40 is GRANTED. In all other respects they are DENIED.
By the Court,
sf Edward E. Guido
Edward E. Guido, 1.
John A. Abom, Esquire
For the Plaintiff
Mark D. Schwartz, Esquire
For the Defendants
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FRED J. WEBER,
Plaintiff
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: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION NO.: 2001 - 3790
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants
REPLY AND NEW MATTER TO DEFENDANTS' NEW MATTER AND
COUNTERCLAIM
25. Plaintiff incorporates herein by reference his averments contained in
paragraphs I through 24 of his Complaint.
26. Admitted.
27. Denied. By way of further answer, the Defendants breached paragraph 4
ofthe Agreement to Purchase Real Estate in that settlement was not held on or before
July 3,2001.
28, After reasonable investigation, the Plaintiff is without sufficient
knowledge or information to form a belief as to the truth of this allegation and therefore,
it is denied.
29. This allegation is a conclusion oflaw to which no response is required. To
the extent an answer is deemed necessary, it is specifically denied. By way of further
answer, as set forth in the Complaint, the Defendants violated the Real Estate Sellers
Disclosure Act.
30. This allegation is a conclusion oflaw to which no response is required. To
the extent an answer is deemed necessary, it is specifically denied. By way of further
answer, as set forth in the Complaint, the Defendants did not provide a disclosure form
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that met the requirements of the Real Estate Sellers Disclosure Act.
29A1. Admitted.
30A2. Admitted.
31. Admitted.
32. This allegation is a conclusion of law to which no response is required. To
the extent an answer is deemed necessary, it is specifically denied.
33. Denied. By way of further answer, it is believed, and therefore averred,
that the Defendants were aware of and had experienced septic, drainage or other related
issues that resulted in pools of sewage percolating on the property.
34. Denied. By way of further answer, it is believed, and therefore averred,
that the Defendants were aware of and had experienced septic, drainage or other related
issues that resulted in pools of sewage percolating on the property on or before January
19,2001.
35. After reasonable investigation, the Plaintiff is without sufficient
knowledge or information to form a belief as to the truth of this allegation and therefore,
it is denied.
36. No responsive pleading is required.
37. This allegation is a conclusion oflaw to which no response is required. To
the extent an answer is deemed necessary, it is specifically denied.
38. Admitted in part, denied in part. Admitted to the extent that the Plaintiff
I Defendant's new matter contained two paragraphs numbered 29. Plaintiff's reply designates the second
paragraph 29 as 29 A.
2 Defendant's new matter contained two paragraphs numbered 30. Plaintiff's reply designates the second
paragraph 30 as 30A.
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did not pay to the Defendants $130,000.00 as originally contemplated within the
Agreement. It is denied that the Plaintiff owes the Defendants a balance of $130,000.00.
It is denied that the Agreement ever became valid due to the Defendants' violations of the
Real Estate Sellers Disclosure Act.
39. After reasonable investigation, the Plaintiff is without sufficient
knowledge or information to form a belief as to the truth of this allegation and therefore,
it is denied.
40. By Order of Court dated February 22, 2002, which was received by
Plaintiff's counsel on February 24, 2002, this court granted the Plaintiffs demurr with
regard to the damages listed by the Defendants in paragraphs 40a through 40j and
therefore a further answer is not required. To the extent that any remaining portions of
the Defendants' counterclaim sets forth a valid claim for the recovery of damages, it is
denied that the Defendants are entitled to recovery of any damages from the Plaintiff due
to their own violation of the Real Estate Sellers Disclosure Act.
NEW MATTER
41. The Plaintiff incorporates herein by reference his averments contained in
paragraphs 1 through 24 of his Complaint and the responses within his reply set forth
above in paragraphs 26 through 40.
42. The Defendants are estopped from recovering any damages from the
Plaintiff under grounds set forth in their counterclaim due to their own illegal actions,
which actions were violations of the Real Estate Sellers Disclosure Act, in obtaining the
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assent of the Plaintiff to the contract.
43. The Defendants are estopped from recovering any damages from the
Plaintiff under grounds set forth in their counterclaim due to their own fraudulent actions
and material misrepresentations, by failing to disclose known material defects upon the
property, in obtaining the assent of the Plaintiff to the contract.
WHEREFORE, Plaintiff requests this Court to order the written Agreement for
the Sale of the residential real property at 927 Grahams Woods Road to be null and void,
deny any and all claims for relief made by the Defendants and further award damages to
the Plaintiff in his favor in the amount of amount of $25,000, costs of litigation, interest
from January 19,2001, andattomey fees incurred in his effort to recover his property.
Respectfully submitted,
ABOM & KUTULAKIS
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VERIFICATION
PURSUANT TO Pa.R.C.P. 1024(c)
John A. Abom, Esquire, states that he is the attorney for the party filing the
foregoing document; that he makes this affidavit as an attorney, because the
party he represents lacks sufficient knowledge or information upon which to make
a verification and/or because he has greater personal knowledge of the
information and belief than that of the party for whom he makes this affidavit;
and/or because the party for whom he makes this affidavit is outside the
jurisdiction of the court, and verification of none of them can be obtained within
the time allowed for the filing of the document; and that he has sufficient
knowledge or information and belief, based upon his investigation of the matters
averred or denied in the foregoing document; and that this statement is made
subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification of
authorities.
Date:
March 14, 2002
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FRED WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBEllANDCOUNTY,PENNSYLVANU
V.
LEROY ELLERMAN and
DONNA ELLERMAN
Defendants
CERTIFICATE OF SERVICE
AND NOW, this 14th day of March, 2002, I, John A. Abom, Esquire, by and
through ABOM & KUTULAKIS, hereby certify that I did serve a true and correct copy
of the foregoing REPLY AND NEW MATTER TO DEFENDANTS' NEW MATTER
AND COUNTERCLAIM upon the below listed counsel of record and/or parties by hand
delivering a copy addressed to the following:
Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, P A 17013
Date: March 14,2002
ABOM&KUTULAKIS, L.L.P.
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orney for: Plaintiff
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FRED J. WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION NO.: 01-3790
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants
PLAINTIFF'S REPLY TO DEFENDANTS'
NEW MATTER-AN1DCOUNTERCLAIM
AND NOW, this ~ay of September, 2002, comes the plaintiff, Fred J.
Weber, by and through his attorney, John A. Abom, Esquire, and enters this Reply to
Defendant's New Matter and Counterclaim as follows:
25. No responsive pleading ne~essarY.l
26. Admitted in part, denied in part. The Plaintiff was aware ofthe Defendants'
intentions to move to Alaska. It is denied that the Defendants' effort to sell the property
located at 927 Grahams Woods Road, Upper Frankford Township, Cumberland County,
was contingent upon the sale of this property.
27. Denied. It is specifically denied that the Defendants complied with all terms
of the Agreement between the parties dated January 19,2001, as Plaintiff has averred the
exact opposite. In particular, Defendants violated ~4 ofthe Agreement in that they did
not hold settlement on the property and did not convey the property to the Plaintiff.
Specific proof to the contrary is demanded
28. Denied. It is specifically denied that the Defendants stood ready to convey
good and marketable title in accord with the Sales Agreement at all times from January
I Paragraphs 1 through 24 contain Defendants' Answers to Plaintiff's Complaint.
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19,2001, through July 3, 2001, and they, in fact, did not convey title to the Plaintiff.
Specific proof to the contrary is demanded.
29. This averment contains a conclusion oflaw to which a responsive pleading is
not required. It is specifically denied that the Defendants complied with all applicable
provisions of the Real Estate Sellers Disclosure Act, as Plaintiff has averred the exact
opposite. Specific proofto the contrary is demanded.
30. Admitted in part and denied in part. It is admitted that Exhibit A is the
disclosure statement provided to the, Plaintiff. It is specifically denied that the
Defendants provided an appropriate disclosure in accordance with the Real Estate Sellers
Disclosure Act, as Plaintiff has averred the exact opposite. Specific proof to the contrary
is demanded.
29 A. 2 Denied. It is specifically denied that there was no other contingency in the
Agreement that would allow the Plaintiff to be excused from purchasing the property. By
way of further answer, it is denied that the I'laintiffhad an obligation to purchase the
property. Specific proof to the contrary is demanded.
30A. Denied. It is specifically denied that the Plaintiff's letter dated April 2,
2001, did not excuse Plaintiff from purchasing the property, as Plaintiff has averred the
exact opposite. By way of further answer, it is denied that the Plaintiff had an obligation
to purchase the property. Specific proof to the contrary is demand.
31. Admitted in part. Denied in part. Admitted insofar as, Plaintiff did not pay
the Defendant $130,000 nor did Plaintiff attend settlement by July 3, 2001. It is
specifically denied that Plaintiff was required to pay the Defendants $130,000 and
required to proceed to settlement under the terms of the Agreement. In addition, it is
2 Defendants pleadings contained two paragraphs numbers 29 and two paragraphs numbered 30.
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averred that the Defendants did not hold settlement on or before July 3, 2001. Specific
proof to the contrary is demanded.
32. Denied. It is specifically denied that the Plaintiff is in default of the
Agreement. Specific proof to the contrary is demanded.
33. Denied. The Plaintiff intends to demonstrate through direct and
circumstantial evidence that the septic system problems and/or drainage problems and/or
sewage problems existed on the property.
34. Denied. It is specifically denied that the Defendants did not have knowledge
that there were problems with the septic and/or drainage systems at the time they
completed and signed the, Sellers Disclosure Statement. By way of further answer, the
Plaintiff has averred the exact opposite.
35. Plaintiff is without sufficient knowledge to admit or deny this averment.
36. Defendants incorporate herein by reference paragraphs I through 34 as stated
above.
37. Denied. It is specifically denied that the Plaintiff was obligated to provide
the balance of $130,000 to the Defendants by July 3, 2001 under the terms of the
Agreement.
38. Admitted in part. Denied in Part. It is admitted that the Plaintiff did not
purchase the property. Ids specifically denied that there were no contingencies that
would permit the Plaintiff to avoid the Agreement. It is specifically denied that the
Plaintiff's actions amounted to a breach.
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39. Denied. It is specifically denied that the Plaintiff caused the Defendants to
sell their Alaska home and move back to Pennsylvania and strict proof thereof is
demanded at trial.
40. Denied. Each and every averment and sub-averment in this paragraph is
specifically denied. By way of further answer, the averments in this paragraph were
disposed of by the Court Order entered by Judge Guido on February 22,2002.
ABOM & KUTULAKIS, L.L.P.
John A ~bom, Esquire
Atto y J.D. No. 77961
8 S Hanover Street; Suite 204
Carlisle, PA 17013
(717) 279-0900
Attorney for Plaintiff
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FREDJ. WEBER,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA
NO. 2001- 3790
vs.
LEROY E. ELLERMAN and
DONNAL.ELLERMAN,
Defendant.
CIVIL ACTION - LAW
VERIFICATION
I, Fred J. Weber, hereby verify that the facts set forth in the foregoing
Reply are true and correct to the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties
of 18 Pa.c.S. ~4904, relating to unsworn falsification to authorities.
Date:
"".<;j
FRED J. WEBER,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
: CIVIL ACTION NO.: 01-3790
LEROY E. ELLERMAN and
DONNA 1. ELLERMAN,
Defendants
CERTIFICATE OF SERVICE
AND NOW, this q"f-' day of September 2002, I, Jolm A. Abom, Esquire, of
Abom & Kutulakis, L.1.P., hereby certify that I did serve a true and correct copy of the
foregoing Planitiff's Reply to Defendants' New Matter and Counterclaim upon the
Defendant by fIrst class mail at the following location:
Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, P A 17013
Attorney for Defendants
ABOM & KUTULAKIS, 1.1.P.
Jolm . Abom, Esquire
8 S th Hanover Street, Suite 204
lisle, PA 17013
ttorney for Plaintiff
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FRED WEBER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
V.
CIVIL ACTION NO.: 01-3790
LEROY ELLERMAN and
DONNA ELLERMAN
Defendants
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUN1Y:
Please list the within matter for the next Argument Court.
1. Matter to be argued:
Plaintiffs Motion for Summary Judgment.
2. Counsel who will argue:
(a) For plaintiff: John A. Abom, Esquire
Abom & Kutulakis, L.L.P.
Suite 204
8 South Hanover Street
Carlisle, PA 17013
(b) For defendants: Mark Schwartz, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, P A 17013
3. I will notify all parties in writing within two day~ that this case has been listed for argument.
4. Argument Court Date:
Jo . Abom,
ttomey for Plaintiff
Dated: October 25, 2002
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FRED J. WEBER,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION NO.: 01-379Q
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants'
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BRIEF,OF THE PLAINTIFF
1. SUMMARY OF THE FACTS AND PROCEDURAL HISTORY
On January 19, 2001, the Plaintiff, Fred Weber, entered into an agreement With the
Defendants, Leroy and Donna Ellerman, for the purchase by the Plaintiff of the residential real
property located at 927 Grahams Woods Road, Upper Frankford Township, Cumberland County,
Pennsylvania, owned by the Defendants. A true and correct photocopy of the written agreement
is attached as EXhibit A. The property subject to the Agreement is residential real property
consisting of approximately 17 acres ofland, a (two/three) story, four-bedroom residence ahda
two-car detached garage. The cpntract price in the Agreement was $155,000.
In accordance With the terms of the Agreement, the Plaintiff paid to the Defendants a
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deposit oftwenty-p,v;t;lthousand dollars ($25,000)toward the purchase of the-property, in two
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installments. The plaintiff paid the first installment of fifteen thousand dollars ($15,000) on
January 19, 2001, and the second installmentof$10,000 on or about March 8, 2001.
The Agreement set forth that tht;l settlement date for the sale of the property was to be
held on or before July 3, 2001. '
On or about March 28,2001, the Plaintiff observed sewagt;l percolating to the surface of
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the residential real property.
By letter dated April 2, 2001, fro~ Plaintiffs then-counsel, Anthony Adams; Esquire; the
Plaintiff notified the sellers of his intention to void the Agreement and demanded a return of his
$25,000 deposit. A true and correct copy of said letter is attached as Exhibit B.
On June 20, 2001, the Plaintiff comnienced the above-captioned action seeking
the return his $25,000 deposit. As of June of2001, the Defendants have resided and continue to
reside at the subject property.
On, before and after July 3, 2001, the Plaintiff did not pay the $130,000 balance owed
under the Agreement to the Defendants and the Defendants' did not convey to the Plaintiff title
to the property.
On November 26,2001, the Defendants filed an Answer and a Counterclaim againSt the
Plaintiff seeking damages allegedly suffered by the Defendants due to the Plaintiff's breach of
the January 19, 2001 Agreement.
On December 18,2001, the Plaintiff filed preliminary objections in the nature of a
demurrer asserting that the consequential damages sought by the Defendants in paragraph 40 of
their counterclaim are not recoverable in this breach of contract action.
On February 22, 2002, following argument, this Court sustained in part and denied in part
the Plaintiff's preliminary objections. The preliminary objections were sustained insofar as the
demurrer to subparagraphs (a) through G) of counterclaim paragraph was granted.
On Septrneber 18,2002, the Plaintiff filed his Motion for Summary Judgment and a copy,
of the motion was mailed to the Defendants' counsel that day. On October 30, 2002,
. Defendants' new attorney sent a letter to Plaintiff s counsel indicating that a copy of the motion
had not been received by his office. On November 1,2002, undersigned counsel hand delivered
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an additional copy of Plaintiff's Motion for Summary Jud~entto Defendants' newattomey. As
of December 2,2002, the Defendant had not answered the Plaintiff's Motion for Summary
Judgment.
II. ISSUES RAISED IN MOTION FOR SUMMARY JUDGMENT:
1. Whether the plaintiff is entitled to the return the $25,000 deposit he paid to the
Defendants according to the terms of an agreement for sale where both parties have breached the
agreement and where the Defendants have not pled or suffered damages as a result of the
Plaintiff's breach?
Suggested answer: Yes.
2. Whether the plaintiff is entitled to the return the $25,000 deposit he paid to the
, Defendants according to the terms of an agreement for sale in a case where the Defendants did
not complete a property disclosure statement that was substantially similar to the property
disclosure statement prescribed by the Real Estate Seller Disclosure Act?
ISSUE WITHDRAWN BY PLAINTIFF
ill. DISCUSSION
In this case, the agreement between the parties sets forth that in the event that the buyer or
the seller shall fail or refuse to make settlement in accordance with the terms of the agreement,
the other party, at his option, may declare the agreement null and void and bring suit for damages
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for breach of contract and bring suit for specific performance. Exhibit A, paragraphs 7 and 8.
Plaintiff has requested the return of his deposit monies, with interest, and the Defendants'
had requested specific consequential damages which this Court ruled are not recoverable in the
Defendants' counterclaim.
The Plaintiff did not buy the property and the Defendant's did not sell and have not sold
the property. The Defendants in support of their breach of contract action have not sought
compensation for any damage to which they would be' entitled as a remedy for the Plaintiff's
breach of the agreement.
Generally, the measure of damages applicable in case of breach of contract is that
aggrieved party should be placed as nearly as possible in same position he would have occupied
had there been no breach, and he is entitled to be reimbursed for money actually paid out and for
all reasonable and proper expenses incurred on faith of the contract. Harman v. Chambers, 57
A.2d 842 (Pa.1948).
Damages suffered must be direct and foreseeable results of breach. MoWer v. Jeke. 595
A.2d 1247,407 Pa.Super. 478 (1991). Consequential damages, to be recoverable, must have
. been reasonably foreseeable at the time that the contract was made. Prank B. Bozzo. Inc. v.
. ,
Electric Weld Division ofPt. Pitt Bridge Division of Spang Industries. Inc.. 423 A.2d 702, 283
Pa.Super. 35 (1980); Rusiski v. Pribonic. 474 A.2d 624, 326 Pa.Super.545 (1984). It is necessary
. in order to charge a party with a particular loss that the loss be one that ordinary follows the'
breach of such a contract in the usual course of events or is one. that reasonable men in the
position of the parties would have foreseen as a probable result of the breach. Prank B. Bozzo,
mc. v. Electric, Weld Divisi~n ofFt. Pitt Bridge Division of Spang Industries, Inc., 423 A.2d 702,
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283 Pa.Super. 35 (1980).
. Wherefore, the Plaintiff respectfully requests this Court to grant his Motion for Summary
Judgment and return to him the deposit monies he paid to the Defendants' with interest from July
3, 200 I.
~espectfully submitted,
ABOM & KUTULAKIS
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EXHIBIT A
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AGREEMENT TO PURCHASE REAL ESTATE
THIS AGREEMENT, made this If day of---:::rANw,AfI.Y ,2001,
between Leroy E. Ellerman, Sr. and Donna L. Ellerman, husband and wife, of927
Grahams Woods Road, Newville, PA 17241, hereinafter called "Sellers, and
Fred J. Weber, single man, of 1645 W. Lisbum Road, Mechanicsburg, Pennsylvania
17055, hereinafter called "Buyer".
WITNE S SE TH:
IT IS MUTUAIL Y AGREED AS FOLLOW:
1. That the Sellers hereby agree to sell and convey to Buyer, who hereby agrees to
purchase certain real property situated at 927 Grahams Woods Road, Upper Frankford
Township, Newville, Cumberland County, Pennsylvania.
2. PURCHASE PRICE - The purchase price for said real estate is the swn of ONE
HUNDRED FIFTY-FIVE THOUSAND ($155,000.00) DOLLARS, payable from the
Buyer to the Seller as follows:
Deposit
$ 15,000.00
Addition Deposit By March 8, 2001-$ 10,000.00
Balance Due By July 3, 2001
$ 130.000.00
TOTAL
$ 155.000.00
3. TITLE - Title is to be good and IIllIfketable, otherwise the deposit money shall be
retumed in full to the Buyer. The premises are to be conveyed free and clear of all liens and
encumbrances, except restrictions and easements of record, and lor physically noticeable
street improvements, if any, and to provisions of zoning ordinances affecting the use of said
premises. The risk of loss or damage to said premises by fire or other casualty until delivery
of deed is to be assumed by the Sellers.
4. SETTLEMENT - Settlement sball be held on or before July 3, 2001.
5. RIGHT - OF - WAY CONTINGENCY - This purchase is contingent upon the
result of a title search into the Adams Electric Cooperative Company right-of-way to deter-
mine whether that right-of-way in any manner adversely affects the ability of Buyer to utilize
the property. Buyer shall promptly notify Seller of the result of his inquiry into this matter.
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6. TAXES AND ADJUSTMENTS - Sellers and Buyer agree to equally divide
payment of all real estate transfer taxes. County, municipal and school real estate taxes, "
-sewer aHa refuse shall be a!l!lOl'tiollcdlletv,;cefi Sellers and DUJa at tho date of settlemcllt. t:kC!!.. .
7. BUYERS DEFAULT - In the event that the Buyer shall fail or refuse to make
settlement in accordance with the tenns of this Agreement, the Sellers, at their option, may
declare this Agreement null and void and bring suit for damages for breach of contract and
bring suit for specific perfonnance.
8. SELLERS DEFAULT - In the event that the Sellers shall fail or refuse to
make settlement in accordance with the tenns of this Agreement, the Buyer at his option,
may declare this Agreement null and void and bring suit for damages for breach of contract'
and bring suit for specific perfonnance. '
9. BINDING EFFECT ~ For the true perfonnance of all and every one of the
covenants and agreements aforesaid, each of the said parties binds himself, heirs, executors
and administrators and assigns, firmly by these presents.
10. POWER OF ATTORNEY - In the eVent that Sellers are not present at time of
settlement, we the Sellers, will be represented by our attorney Roger B. Irwin.
. WHEREFORE, the parties hereto have care:t4lly read and considered this Agree-
ment and, intending to be legally bound thereby, acknowledge receipt of a copy of this
Agreement, having hereunto set their hand and seal this day the date first above written. ,
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Witness '
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LEJfi)y E. ELLERMAN, SR, Seller
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( DONNAL. ELLERMAN, Seller
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LAW OFFICE
H. ANTHONY ADAMS
128 EAST KING STREET, SUITE A
SHIPPENSBURG, PE!'o"NSYL"I-:4..NIA 17257
TELEPHOI;l.o"E (7171532-3270
FAX (7171532-6673
April 2, 2001
Leroy E. Ellerman, Sr.
Donna L. Ellerman
927 Grahams Woods Road
Newville, PA 17241
Dear Mr. & Mrs.. Ellerman:
As you may remember/ I represent Mr. Fred J. Weber. During a recent
trip to the property/ Mr. Weber discovered that your seepage bed is seriously
malfunctioning and is very close to a stream. He was able simply by looking at
the bed to see sewage on the surface of the ground. A closer examination
shows that the entire drain field is little more than a marsh of decaying sewage.
There is obvious concern that any rain will wash contaminants into the stream.
Given this horrific discovery/ we are declaring the agreement of January
19/ 2001 void. Please immediateiy return the $25;000.00 that you are holding in
escrow.
Sincerely/
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H. Anthony Adams
HM; dms
cc: Mr. Weber
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FRED J. WEBER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001 -3790 CIVIL TERM
DEe 0 4. 200t
v.
CIVIL ACTION - LAW
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants.
BRIEF OF DEFENDANTS.
LEROY E. ELLERMAN and DONNA L. ELLERMAN OPPOSING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
Defendants, LEROY E. ELLERMAN and DONNA L. ELLERMAN, by and through their
attorneys, Irwin, McKnight & Hughes, submit this Brief Opposing Plaintiff's Motion for
Summary Judgment.
I. FACTS
On or about January 19, 2001, the Plaintiff, Fred Weber entered into an agreement with
Defendants, Leroy and Donna Ellerman, to purchase certain real property known as 927 Grahams
Woods Road, Upper Frankford Township, Cumberland County, Pennsylvania. The property
subject to the Agreement consists a residence and detached two-car garage, situate upon
approximately 17 acres of land. The contract price in the Agreement was One Hundred Fifty-
Five Thousand ($155,000.00) Dollars.
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According to the terms of the Agreement of Sale, Plaintiff Buyer was to pay to
Defendants Seller an initial deposit in the amount of Fifteen Thousand ($15,000.00) Dollars
toward the purchase of the property. In addition, Plaintiff was to pay an additional deposit ofTen
Thousand ($10,000.00) Dollars on or before March 8, 2001. Plaintiff complied with those terms
and deposited Twenty-Five Thousand ($25,000.00) Dollars with the Defendants. At the time of
the signing of the Agreement of Sale on January 19,2001, Plairitiff did not wish to immediately
purchase the property, but expressed a desire to postpone settlement until July of 2001. The
Defendants could not wait to settle until the summer of 2001, as they had plans to move to
Alaska and needed certain funds to facilitate their move. The parties, in part due to those
reasons, agreed to the above deposit of Twenty-Five Thousand ($25,000.00) Dollars.
With the exception of a right-of-way contingency, which was adequately met, the
Agreement of Sale was not contingent upon any inspections or any other terms or circumstances
whatsoever. After determining unilaterally that he did not wish to purchase the property,
Plaintiff, by letter from his counsel, notified the Defendants that he was declaring the Agreement
of Sale void. As noted, there was no contingency with regard to the Agreement of Sale which
gave Plaintiff the option to declare the Agreement void. Therefore, Plaintiff Buyer was in default
pursuant to Paragraph 7 of the Agreement of Sale when he refused to make settlement in accord
with the terms of the Agreement.
As a result of the breach and failure of Plaintiff to pay Defendants the remaining One
Hundred Thirty Thousand ($130,000.00) Dollars due under the contract by July 3, 2001,
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Defendants were unable to maintain their new homestead in Alaska and were forced to return to
Pennsylvania.
On or about June 20, 2001, Plaintiff filed a Complaint in this matter. On or about
November 26,2001, Defendants filed an Answer with New Matter and Counterclaim, seeking in
part damages suffered due to Plaintiff's breach of the Agreement of Sale. Defendants assert in
their New Matter, among other items, that they stood ready and willing to convey to Plaintiff
good and marketable title to the subject real estate. (Def. New Matter ~ 28.) Defendants also
assert that they complied with all the terms of the Agreement, (Def. New Matter ~ 27), and that it
was the Plaintiff who defaulted under the terms of the Agreement (Def. New Matter ~~ 30-32).
Defendants further pled that they have never experienced any problems with the septic system
and did not have any reason to know of any problems with the system. (Def. New Matter mJ 33-
34). Plaintiff filed two replies to Defendant's New Matter, the first on March 14,2002, and the
second on September 4, 2002. These replies contain several conflicting responses, but generally
Plaintiff denies that he breached the Agreement and denies that the septic system was in working
order. In light of these new matter defenses, Defendants also deny that Plaintiff is entitled to
return of the deposit monies under the contract. (Def. Ans. ~ 24.)
Prior to filing his two replies, Plaintiff had filed preliminary objections, which following
briefs and argument were sustained in part and denied in part by Order of Court dated February
22, 2002. The Order dismissed subparagraphs (a) through (j) of Defendants' Counterclaim
paragraph forty (40). The remaining provisions of Defendants ' Counterclaim remained intact.
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Since this Court's prior ruling, no depositions or other discovery have been initiated or
pursued by Plaintiff. On or about September 18, 2002 Plaintiff filed his instant Motion for
Summary Judgment, which was not received by Defendants' legal counsel.
Plaintiff's legal counsel subsequently filed a Praecipe to list his Motion for Summary
Judgment for Argument for the upcoming Argument Court scheduled for December 4, 2002. As
the moving party pursuant to C.C.R.P. ~ 210-6, Plaintiff was to have filed a brief with this Court
on November 22,2002. According to the Cumberland County Rules of Procedure, this Court has
the authority to deny Plaintiff's Motion for Summary Judgment for the sole reason that a brief
was apparently not filed until December 3, 2002 when Defendants' legal counsel received his
copy. The undersigned counsel received a copy of said brief on Monday, February 11, 2002, and 7
submits the following brief in opposition to Plaintiff's Preliminary Objections. Defendants G
Stewart H. and Peggy Ann Porter also assert in their New Matter that they were mistakenly
named on 'the recorded Mortgage, when they were more accurately to be guarantors in the
transaction.
II. QUESTION PRESENTED
1. Whether a genuine issue of material fact exists where the Plaintiff breached the
agreement of sale for real estate when he unilaterally declared the agreement void
and where the parties dispute the amount of damages they have suffered?
Suggested Response: YES
2. Question regarding alleged violation of Real Estate Sellers Disclosure Act
withdrawn by Plaintiff pursuant to Plaintiff's brief received December 3, 2002.
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III. ARGUMENT
A. Standard of Review.
After the relevant pleadings are closed, Pa.R.Civ.P. No.1 035.2 provides that a party may
move for summary judgment as a matter of law:
(1) whenever there is no genuine issue of any material fact as to a necessary element
of the cause of action or defense which could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the
production of expert reports, an adverse party who will bear the burden of proof at
trial has failed to produce evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be submitted to a jury.
See also, McCarthv v. Dan LeDore & Sons Co.. Inc., 724 A.2d 938, 940 (Pa. Super. 1998).
"A proper grant of summary judgment depends upon an evidentiary record that either (1) shows
the material facts are undisputed or (2) contains insufficient evidence of facts to make out a
prima facie cause of action or defense and, therefore, there is no issue to be submitted to the
jury." Id. at 940. A non-moving party may not avoid summary judgment by merely resting upon
the mere allegations or denials of pleadings, and where a motion for summary judgment is based
upon insufficient evidence of facts, the burdened non-moving party must present some evidence
essential to preserve the cause of action. Id. at 940, citing Ertel v. Patriot-News Co., 544 Pa.
93,674 A.2d 1038 (1996).
However, the record must be examined in the light most favorable to the non-moving
party and the non-moving party is entitled to all reasonable inferences. Emerv v. Leaveslv
McCollum, 725 A.2d 807, 810 (Pa. Super. 1999), citing Kin2ston Coal Co. v. Felton Minim!
Co.. Inc., 456 Pa. Super. 270, 690 A.2d 284, 287 (1997). Further, any doubts as to the
5
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existence of a factual dispute must be resolved in the non-moving party's favor. Id. at 810.
Summary judgment is appropriate only in the "clearest of cases" where the right is clear and free
from doubt. Id. at 810.
Applying these standards to the Plaintiff's Motion for Summary Judgment, it is clear that
genuine issues of material fact exist and have been properly preserved by Defendants.
Defendants did not merely deny the allegations raised by PlaiIitiff, but have pled their own
assertions and defenses in New Matter and also included a Counterclaim. Significant factual
differences exist in the instant case regarding whether the septic system on the property was
malfunctioning, regarding which party breached the Agreement of Sale, and regarding whether
the deposit monies were intended to be liquidated damages in the event that Plaintiff breached
the contract. Plaintiff has not engaged in any formal discovery iIi the months since the Order of
Court of February 22, 2002 so that these material issues may be resolved. Plaintiff is therefore
not entitled to summary judgment as a matter oflaw.
B. A genuine issue of material fact exists where the Plaintiff breached the
agreement of sale for real estate when he unilaterally declared the agreement
void and where the parties dispute the amount of damages they have
suffered.
Defendants have consistently pled that it was Plaintiff who breached the Agreement of
Sale when he unilaterally declared the contract void without any supporting documentation or
evidence of a malfunctioning septic system. Defendants have also consistently pled that they
remained ready and willing to sell the property in accordance with the Agreement of Sale through
the date specified in the contract. Plaintiff in his brief, however, immediately assumes that both
6
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parties are in breach because the property was not sold. Plaintiff the!! immediately jumps to and
cites several cases regarding the issue of the measure of damages.
Plaintiff's assumption is that the issues of breach, responsibility, and the intent of the
parties with regard to damages have been resolved. This assumption could not be further from
truth. The parties and the pleadings they have filed reflect their strong dispute as to which party
is in actual breach of the contract. For the first time Plaintiff does seem to acknowledge that he
may have breached the contract when he unilaterally declared it void. However, the dispute
remains as to whether Plaintiff alone breached the contract, or whether Defendants also breached,
or whether Defendants' actions were anticipatory of Plaintiff's unjustified refusal to purchase the
property.
Defendants have also preserved their dispute as to the measure of damages. Defendants
assert that they are entitled to retain the deposit monies as liquidated damages in the event that
Plaintiff breached the contract. The agreed upon deposit was higher than usual in part to protect
the Defendants in the event of a breach by Plaintiff Buyer. These genuine issues of fact are
material and substantial and must result in a denial of Plaintiff's Motion for Summary Judgment.
IV. CONCLUSION
Defendants have consistently and repeatedly pled that the septic system on the property
was and is working properly. Defendants have also pled that it was Plaintiff who breached the
Agreement of Sale when he unilaterally declared the contract void without providing any proof
of a defect, nor providing Defendants the opportunity to repair any alleged defects. In addition,
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genuine issues of material fact exist with regard to damages and whether the parties intended that
the deposit monies may be retained as liquidated damages. For the reasons set forth above,
Defendants Leroy E. Ellerman and Donna L. Ellerman respectfully request that this Honorable
Court deny Plaintiff's Motion for Summary Judgment.
Respectfully Submitted,
IRWIN, McKNIGHT & HUGHES
By:
Dated: December 3, 2002
Douglas . Miller, Es uire
Supreme ourt ill # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants,
Leroy E. Ellerman and
Donna L. Ellerman
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CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certifY that I have served a true and correct copy
of the foregoing document, upon the persons indicated below via facsimile and by hand delivery,
on the date set forth below:
John A. Abom, Esquire
Abom & Kutulakis, L.L.P.
8 South Hanover Street, Suite 204
Carlisle, P A 17013
Date: December 3, 2002
IRWIN, McKNIGHT & HUGHES
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Douglas G . eXqJire
Supreme Court ill # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants
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FRED W. WEBER,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
LEROY E. ELLERMAN
and DONNA L.
ELLERMAN,
Defendants
NO. 01-3790 CIVIL TERM
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this 5th day of December, 2002, upon consideration of Plaintiff's
Motion for Summary Judgment, and following the submission of briefs and oral
argument held on December 4, 2002, the motion is denied. *
BY THE COURT,
011.
/fohn A. Abom, Esq.
Attorney for Plaintiff
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V Douglas G. Miller, Esq.
Attorney for Defendants
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*It is noted that Plaintiff's motion is not being pursued with respect to the issue of
"[w]hether the plaintiff is entitled to the return [of] the $25,000 deposit he paid to the
Defendants according to the terms of an agreement for sale in a case where the
Defendants did not complete a property disclosure statement that was substantially
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similar to the property disclosure statement prescribed by the Real Estate Seller
Disclosure Act." See Brief of Plaintiff, at 3.
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROI'HONJ'I'ARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) for JURY trial at the next tenn of civil court.
X) for trial without a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
(check one)
( X) Civil Action - Law
FRED WEBER,
Appeal f=m Arbitration
(other)
(Plaintiff)
vs.
LEROY ELLERMAN and
DONNA ELLERMAN,
The trial list will be called on
and
Trials commence on
(Defendant)
Pretrials will be held on
(Briefs are due 5 days before pretrials.)
vs.
(The party listing this case for trial shall
p=vide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No.
?mO
Civil 01-~
19
Indicate the attorney who will try case for the party who files this praecipe:
John A Ahom Esquire, Abom & Kutulakis. L.L.P.
Indicate trial counsel for other parties if known:
M~rk ~~hw;:art'7.. F:~qlli rp r Trwi n. McKni ght & HIHJhes
This case is ready for trial.
Signed:
Esquire
Print N
Date: 6/26/2003
Attorney for:
Plaintiff
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FRED WEBER,
Plaintiff
v.
LEROY E. ELLERMAN
and DONNA L.
ELLERMAN,
Defendants
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
NO. 01-3790 CIVIL TERM
ORDER OF COURT
AND NOW, this 1st day of July, 2003, a pretrial conference in the above matter is
scheduled for Wednesday, October 1,2003, at 1:30 p.m., in chambers of the undersigned
judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall
be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the
pretrial conference.
A NONJURY TRIAL in the above matter is scheduled for Monday, October 20,
2003, at 9:30 a.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle,
Pennsylvania.
v1OhnA. Abom, Esq.
36 South Hanover Street
Carlisle, PA 17013
Attorney for Plaintiff
v1'ouglas G. Miller, Esq.
60 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendant
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BY THE COURT,
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01-03 -03
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FRED WEBER,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
LEROY E. ELLERMAN
and DONNA L.
ELLERMAN,
Defendants
NO. 01-3790 CIVIL TERM
ORDER OF COURT
AND NOW, this 19th day of September, 2003, due to a conflict in the Court's
scheduled, the pretrial conference previously scheduled in the above matter for October
1,2003, is rescheduled to Wednesday, November 12,2003, at 11:15 a.m., in chambers of
the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial
memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least
five days prior to the pretrial conference.
A NONJURY TRIAL in the above matter previously scheduled for October 20,
2003, is rescheduled to Monday, December 22,2003, at 9:30 a.m., in Courtroom No. I,
Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
Jolm A. Abom, Esq.
Attorney for Plaintiff
Douglas G. Miller, Esq.
Attorney for Defendants
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FRED J. WEBER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants
NO. 01-3790 CIVIL TERM
IN RE: PRETRIAL CONFERENCE
ORDER OF COURT
A pretrial conference was held in the chambers of
Judge Oler in the above-captioned case on Wednesday, November 12,
2003. Present on behalf of the Plaintiff was John A. Abom,
Esquire. Present on behalf of Defendants was Douglas G. Miller,
Esquire.
This civil action filed by Plaintiff arises out of an
agreement of sale for a residence in which Plaintiff was the buyer
and Defendants were the sellers. Claims being pursued at this time
by Plaintiff are for failure to disclose a material defect in
violation of 68 P.S. Section 1024, and for breach of contract, both
of which pertain to an allegedly defective septic system which, in
Plaintiff's view, justified his withdrawal from his obligations
under the contract and warranted the return of his down payment of
$25,000. Defendants have counterclaimed for retention of the
$25,000 down payment as liquidated damages or, in the alternative,
as actual damages. Additional items of damages in Defendants'
counterclaim have been dismissed by prior order of court on
preliminary objections. Neither party is requesting specific
performance in this case.
This will be a nonjury trial which by separate order
of Court has been scheduled for Monday, December 22, 2003,
commencing at 9:30 a.m. The estimated duration of trial is one
day.
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With respect to issues expected to arise at trial,
counsel are requested, at least 7 days prior to commencement of the
trial, to submit to the Court briefs on the issue of whether a down
payment in a real estate transaction can be collected as liquidated
for the same.
damages by the seller where the contract does not expressly provide
With respect to settlement negotiations, counsel have
indicated that there is a possibility of settlement.
v00hn A. Abom, Esquire
For the Plaintiff
~uglas G. Miller, Esquire
For the Defendants
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FRED W. WEBER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
LEROY E. ELLERMAN
and DONNA L.
ELLERMAN,
Defendants
NO. 01-3790 CIVIL TERM
ORDER OF COURT
AND NOW, this 22nd day of December, 2003, upon relation of counsel that
settlement negotiations are on going in the above matter, the nonjury trial scheduled for
December 22,2003, is continued generally.
COUNSEL are directed to contact the court if the nonjury trial is to be rescheduled
or when a settlement is reached.
BY THE COURT,
John A. Abom, Esq.
Attorney for Plaintiff
Douglas G. Miller, Esq.
Attorney for Defendants
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FRED J. WEBER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001-3790 CIVIL TE~;"'~ 2003
CIVIL ACTION -LAW ....~ "
v.
LEROY E. ELLERMAN and
DONNA L. ELLERMAN,
Defendants.
DEFENDANTS' PRE-TRIAL BRIEF
Defendants, LEROY E. ELLERMAN and DONNA L. ELLERMAN, by and--t1ITough their
attorneys, Irwin & McKnight, submit this Pre-Trial Brief with regard to the measure of damages
and lack of an express liquidated damages provision in the contract.
I. FACTS
On or about January 19, 2001, the Plaintiff, Fred Weber entered into an agreement with
Defendants, Leroy and Donna Ellerman, to purchase certain real property known as 927 Grahams
Woods Road, Upper Frankford Township, Cumberland County, Pennsylvania. The property
subject to the Agreement consists a residence and detached two-car garage, situate upon
approximately 17 acres of land. The contract price in the Agreement was One Hundred Fifty-
Five Thousand ($155,000.00) Dollars.
According to the terms of the Agreement of Sale, Plaintiff Buyer was to pay to
Defendants Seller an initial deposit in the amount of Fifteen Thousand ($15,000.00) Dollars
toward the purchase of the property. In addition, Plaintiff was to pay an additional deposit ofTen
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Thousand ($10,000.00) Dollars on or before March 8, 2001. Plaintiff complied with those terms
and deposited Twenty-Five Thousand ($25,000.00) Dollars with the Defendants. At the time of
the signing of the Agreement of Sale on January 19, 2001, Plaintiff did not wish to immediately
purchase the property, but expressed a desire to postpone settlement until July of 2001. The
Defendants could not wait to settle until the summer of 2001, as they had plans to move to
Alaska and needed certain funds to facilitate their move. The parties, in part due to those
reasons, agreed to the above deposit of $25,000.00.
With the exception of a right-of-way contingency, which was adequately met, the
Agreement of Sale was not contingent upon any inspections or any other terms or circumstances
whatsoever. After determining unilaterally that he did not wish to purchase the property,
Plaintiff, by letter from his counsel, notified the Defendants that he was declaring the Agreement
of Sale void. As noted, there was no contingency with regard to the Agreement of Sale which
gave Plaintiff the option to declare the Agreement void. Therefore, Plaintiff Buyer was in default
pursuant to Paragraph 7 of the Agreement of Sale when he refused to make settlement in accord
with the terms of the Agreement.
As a result of the breach and failure of Plaintiff to pay Defendants the remaining One
Hundred Thirty Thousand ($130,000.00) Dollars due under the contract by July 3, 2001,
Defendants were unable to maintain their new homestead in Alaska and were forced to return to
Pennsylvania.
On or about June 20, 2001, Plaintiff filed a Complaint in this matter. On or about
November 26, 2001, Defendants filed an Answer with New Matter and Counterclaim, seeking in
2
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part damages suffered due to Plaintiff's breach of the Agreement of Sale. Defendants assert in
their New Matter, among other items, that they stood ready and willing to convey to Plaintiff
good and marketable title to the subject real estate. (Def. New Matter ~ 28.) Defendants also
assert that they complied with all the terms of the Agreement, (Def. New Matter ~ 27), and that it
was the Plaintiff who defaulted under the terms of the Agreement (Def. New Matter ~~ 30-32).
Defendants further pled that they have never experienced any problems with the septic system
and did not have any reason to know of any problems with the system. (Def. New Matter ~~ 33-
34). Plaintiff filed two replies to Defendant's New Matter, the first on March 14,2002, and the
second on September 4, 2002. These replies contain several conflicting responses, but generally
Plaintiff denies that he breached the Agreement and denies that the septic system was in working
order. In light of these new matter defenses, Defendants also deny that Plaintiff is entitled to
return of the deposit monies under the contract. (Def. Ans. ~ 24.)
The relevant provision in the Agreement is Paragraph Seven entitled "Buyers Default,"
which reads lIS follows:
"In the event that the Buyer shall fail or refuse to make settlement in
accordance with the terms of the Agreement, the Sellers, at their option, may
declare this Agreement null and void and bring suit for damages for breach of
contract and bring suit for specific performance."
Prior to filing his two replies, Plaintiff had filed preliminary objections, which following
briefs and argument were sustained in part and denied in part by Order of Court dated February
22, 2002. The Order dismissed subparagraphs (a) through 0) of Defendants' Counterclaim
paragraph forty (40). The remaining provisions of Defendants , Counterclaim remained intact.
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II. QUESTION PRESENTED
1. Whether the deposit in an Agreement to Purchase Real Estate is the proper
measure of damages for breach of contract where the purchaser could not settle
until July 3,2001, but the sellers required a substantial down payment by March
8, 2001 in order to accomplish their move to Alaska?
Suggested Response: YES
III. ARGUMENT
A. A deposit may not be retained as liquidated damages where the contract does
not provide for forfeiture.
If a contract does not contain a liquidated damages or forfeiture clause, a breach by the
purchaser does not confer a contractual right, in and of itself, upon the seller to retain any deposit
monies paid. See Cashman v. Sheaffer, 30 Pa. D. & C.3d 512, 518 (Cumb. C.C.P. 1984),
citing Restatement of Law, (second), Contracts ~ 374(1). Instead, the seller may recover for
actual damages caused by the breach. Id. at 519.
B. The deposit in the Agreement to Purchase Real Estate is the proper measure
of damages for breach of contract where the purchaser could not settle until
July 3, 2001, but the sellers required a substantial down payment by March
8, 2001 in order to accomplish their move to Alaska.
Generally, there are three remedies available to a seller when a buyer defaults under an
agreement of sale for real property. Olmo v. Matos, 439 Pa. Super. 1, 6, 653 A.2d 1, 3 (1994).
A seller may sue for damages, may seek specific performance, provided the requirements of
equitable relief can be met, or may sue for the purchase price as provided in the agreement,
conditioned upon the transfer of the property. Id. Under the first option, the measure of
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damages is often the contract price minus the market value of the land on the date of breach.
Trachtenburl! v. Sibarco Stations. Inc., 477 Pa. 517, 522, 384 A.2d 1209, 1211 (1978).
However, Pennsylvania law does not limit the measure of the damages to such a calculation, but
instead allows for other established damages. Id. 384 A.2d at 1213. The Restatement of Law,
(second), Contracts ~ 374(1), as adopted in Pennsylvania, provides that while the party in
breach is entitled to restitution for part performance, this restitution, if any, is limited by the loss
or damage caused by the breach. See Lancellott v. Thomas, 341 Pa. Super. 1, 10,491 A.2d
117,121-122 (1985).
In the instant case, Plaintiff required additional time to complete the purchase of the
property for financial reasons. The Defendants, however, were desirous of moving to Alaska and
needed to sell the subject property in order to have the equity available for the costs of their
move. As a compromise, the parties agreed to a substantial deposit of $25,000.00, made in two
payments with the second payment due on or before March 8, 2001. There was no agreement to
have these funds placed in escrow, and in fact these funds were primarily used by the Defendants
to purchase land in Alaska and pay for moving costs. A fact of which Plaintiff was or should
have been aware. In return, the date of settlement was extended to on or before July 3, 200 I and
Plaintiff was given access to the property in order to improve and/or prepare the property for his
ownership.
As a result of the breach by Plaintiff, the Defendant were unable to maintain two separate
properties with two mortgages on the opposite sides of the continent. Ultimately they were
5
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forced to return to Pennsylvania. Their damages in this case were extensive and justify an award
of the funds paid by Plaintiff.
IV. CONCLUSION
The deposit in the Agreement to Purchase Real Estate is the proper measure of damages
for breach of contract in this case. The Plaintiff could not settle until approximately July 3,2001,
but the Defendants required a substantial down payment by March 8, 2001 in order to accomplish
their move to Alaska. His unjustified refusal to complete the purchase, caused damage to the
Defendants in excess of the difference between contract price and market value.
Respectfully Submitted,
IRWIN & McKNIGHT
By:
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Douglas . er, Esquire
Supreme Court ill # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants,
Leroy E. Ellerman and
Donna L. Ellerman
Dated: December 16, 2003
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CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
John A. Abom, Esquire
Abom & Kutulakis
36 South Hanover Street
Carlisle, PA 17013
Date: December 16, 2003
IRWIN & McKNIGHT
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Douglas G iller:Esquh-e
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants
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FRED WEBER,
Plaintiff
V.
LEROY ELLERMAN and
DONNA ELLERMAN
Defendants
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: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION NO.: 01-3790
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PRAECIPE TO DISCONTINUE AND END
TO THE PROTHONOTARY:
Please mark this case settled, discontinued and ended, with prejudice.
Respectfully submitted,
IRWIN & MCKNIGHT
Douglas
Irwin & cKnight
60 West Pomfret Street
Carlisle, PA 17013
Atty. 10. 83776
Attorney for Defendants
ABOM & KUTULAKIS, L.L.P.
Jo A. Abom, Esquire
om & Kutulakis, LLP
36 South Hanover Street
Carlisle, PA 17013
Atty. 10. 77961
Attorney for Plaintiff
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