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HomeMy WebLinkAbout01-03823Jesse Raymond Rohl, Dgnire PA Atty. No.: 55798 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 (717) 241-4813 (717) 2414829 (fm) RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. U/- 3?23 Ct ,,- P 71, JURY TRIAL DEMANDED 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 or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Fourth Floor Carlisle, PA 17013 (717) 240-6200 AVISO USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o per medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion come se describe anteriormente, el caso puede proceder sin usted y un fallo per cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado per el demandante puede ser dictado en contra suya per la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad a otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse Fourth Floor Carlisle, PA 17013 (717) 240-6200 Jesse Raymond Rohl Attorney I.D. No. 55798 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 (717) 241-4813 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. CIVIL ACTION - LAW NO. 0 1- 3 8,2 3 C6.? i,-- JURY TRIAL DEMANDED COMPLAINT NOW COME Plaintiffs Richard E. Milligan and Kay D. Milligan, by and through their attorney, Jesse Raymond Ruhl, and file the within Complaint as follows: 1. Plaintiffs Richard E. Milligan and Kay D. Milligan are husband and wife with a present address located at 55 Ridge Avenue, Carlisle, PA 17013. 2. Defendant William C. Costopoulos is an adult individual with an address located at 831 Market Street, Lemoyne, PA 17043. 3. Defendant William C. Kollas is an adult individual with an address located at 1104 Fernwood Avenue, Camp Hill, PA 17011. 4. Upon information and belief, Defendants Costopoulos and Kollas are partners, trading and doing business as Regency Homes. 5. Regency Homes is a developer of a tract of land situated adjacent to the property owned by Plaintiffs. 6. Regency Homes has an address located at 7099 Carlisle Pike, Carlisle, PA 17013. 7. Defendant Boyd E. Diller, hie. is a corporation with an address of 6820 Wertzville Road, Enola, PA 17025. 8. Defendant Diller is in the earth moving and excavation business and at all times, pertinent hereto was acting as the agent, servant and/or employee of Defendants Costopoulos, Kollas and/or Regency Homes. 9. Defendant Follmer Excavating, Inc. is a corporation with an address located at 238 Locust Point Road, Mechanicsburg, PA 17055. 2 10. Defendant Follmer is in the earth moving and excavation business and at all times, pertinent hereto was acting as the agent, servant and/or employee of Defendants Costopoulos, Kollas and/or Regency Homes. FACTUAL BACKGROUND 11. Defendants Costopoulos, Kollas and Regency Homes are developers of a tract of land known as Kingsbrook Development. 12. The Kingsbrook Development property and the Plaintiffs share a common property line, and the Kingsbrook Development property abuts Plaintiffs' property to the east of Plaintiffs' property. 13. In the course of developing their property known as Kingsbrook Development, Defendants Costopoulos, Kollas and Regency Homes, through the acts and conduct of their employees, servants, agents, workers, independent contractors and/or others acting on their behalf, made repeated and unlawful trespasses onto the property owned by Plaintiffs. 14. These trespasses were made through the intentional acts of all Defendants hereto for the purpose of increasing the value of Kingsbrook Development while diminishing the value of Plaintiffs' property. 15. These repeated trespasses occurred between the time of March, 2000 and continued through the fall of 2000. 16. The repeated and unlawful trespasses were made without any claim of right thereto and were made in complete disregard for the rights of Plaintiffs. 17. Moreover, the trespasses continued even after advised by Plaintiffs that the Defendants were trespassing and that the trespasses must cease. 18. Nevertheless, Defendants refused to abide by the Plaintiffs' demand that the trespasses cease, and Defendants continued with their wanton, willful, reckless and/or negligent trespass upon the Plaintiffs' property. 19. These trespasses continued despite the fact that Defendants' admitted their trespasses and offered to pay for some of the damage caused to Plaintiffs' property. See Defendant Follmer's check No. 1086 in the amount of $400.00, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. 4 20. This admission and acknowledgment of the trespass by their agent is binding upon Defendants Costopoulos, Kollas and Regency Homes. 21. The sum of $400.00 offered by Defendant Follmer is totally inadequate to compensate Plaintiffs for the damages suffered. 22. As a result of the trespass, Plaintiffs suffered damage to their property in the following manner: a. Plaintiffs' mail box was damaged; b. Defendants removed the top soil from Plaintiffs' property; C. Defendants removed mulch from Plaintiffs' property; d. Defendants removed and/or destroyed shrubbery on Plaintiffs' property; e. Defendants removed and/or destroyed approximately 29 deciduous trees of approximately 4%2 "- 5" caliper, plus other trees of smaller caliper. f. Defendants' destroyed the balance of natural beauty and cultivated landscaping that Plaintiffs were fostering; and g. Defendants interfered with Plaintiffs' right to be free from invasion. 23. In addition, Plaintiffs were damaged in that the trespass will require them to re-landscape the areas which were the subject of the trespass. 24. As a result of the trespasses, Plaintiffs have been damaged in an amount in excess of $94,650.00 as set forth on the Bid Proposal dated February 2, 2001, a copy of which is attached hereto at Exhibit "B" and incorporated herein by reference. COUNT I -TRESPASS (Plaintiffs v. All Defendants) 25. The foregoing averments are incorporated herein by reference. 26. Defendants, through their agents, servants and/or employees knowingly, recklessly and/or negligently trespassed upon the Plaintiffs' property. 27. The aforesaid actions of Defendants, their agents, servants and/or employees damaged and wrongfully interfered with Plaintiffs' property, and Plaintiffs rights as property owners as set forth above. 28. The acts of Defendants were outrageous, reckless, callous, performed with reckless indifference, and were performed to increase the value of Defendants' development while diminishing the value of Plaintiffs' property. 29. As a result, the conduct of Defendants entitles Plaintiffs to an award of punitive damages. WHEREFORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in an amount in excess of $94,650.00, plus punitive damages, attorney's fees, interest and costs of suit. COUNT II - STRICT LIABILITY (Plaintiffs v. All Defendants) 30. The foregoing averments are incorporated herein by reference. 31. An individual trespassing and responsible for the destruction of property is strictly liable for any and all harm caused without regard for negligence. 32. Moreover, the operation of heavy construction equipment is an abnormally dangerous and ultrahazardous activity. 33. Defendants were at all times pertinent hereto engaged in an abnormally dangerous and ultrahazardous activity. 34. Plaintiffs suffered damage to their property in the following manner as a result of the invasion: a. Plaintiffs' mail box was damaged; b. Defendants removed the top soil from Plaintiffs' property; 7 C. Defendants removed mulch from Plaintiffs' property; d. Defendants removed and/or destroyed shrubbery on Plaintiffs' property; e. Defendants removed and/or destroyed approximately 29 deciduous trees of approximately 4%2 "- 5" caliper, plus other trees of smaller caliper. f. Defendants' destroyed the balance of natural beauty and cultivated landscaping that Plaintiffs were fostering; and g. Defendants interfered with Plaintiffs' right to be free from invasion. 35. As a result, Defendants are strictly liable for the damages suffered by Plaintiffs. WHEREFORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in an amount in excess of $94,650.00, plus punitive damages, attorney's fees, interest and costs of suit. COUNT III - NEGLIGENCE (Plaintiffs v. All Defendants) 36. The foregoing averments are incorporated herein by reference. 37. Plaintiffs suffered damages to their property as a result of the negligence of the Defendants, their agents, servants and/or employees acting within the course and/or scope of their employment. 38. Defendants had a duty to avoid trespassing onto Plaintiffs' property. 39. Defendants breached this duty by carelessly, recklessly, negligently or wantonly trespassing upon Plaintiffs' property. 40. The negligence, carelessness, recklessness or wantoness of Defendants, their agents, servants and/or employees consisted of the following: (a) Failure to establish or identify the exact property lines before proceeding with the operation of heavy machinery; (b) Willfully and recklessly destroying shrubbery and trees before ascertaining the ownership thereof; (c) Callously disregarding Plaintiffs' assertion of the trespass, and continuing trespassing upon the Plaintiffs' property; (d) Failing to properly direct and supervise their employees, agents, contractors, servants and/or workmen. 41. The Plaintiffs have been damaged by the negligence, carelessness, recklessness or wantoness of the Defendants, and the negligence, carelessness, recklessness and/or wantoness of the Defendants was the proximate cause of Plaintiffs' injury. WHEREFORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in an amount in excess of $94,650.00, plus punitive damages, attorney's fees, interest and costs of suit. COUNT IV - CONVERSION (Plaintiffs v. All Defendants) 42. The foregoing averments are incorporated herein by reference. 43. As set forth more fully above, Defendants converted the property of Plaintiffs. 44. The Defendants converted Plaintiffs' property for their own personal, commercial advantage, to the financial disadvantage of Plaintiffs. 45. The conversion of Plaintiffs' property was done intentionally and callously so that the value of Kingsbrook Development would be augmented. 46. Converting Plaintiffs' property for the commercial advantage of the Defendants was outrageous conduct which entitles Plaintiffs to an award of punitive damages. 10 WHEREFORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in an amount in excess of $94,650.00, plus punitive damages, attorney's fees, interest and costs of suit. DATED: June 21, 2001 r se and Ru`fil, Esquire Att ey ID No. 55798 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 (717) 241-4813 Attorney for the Plaintiffs \\MV Mle documents\=Iflgm\com hl itwpd 11 VERIFICATION Kay D. Milligan deposes and says, subject to the penalties of 42 Pa.C.S.A. Sec. 4101, relating to unworn falsification to authorities, that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. At Kay W. Milligan EXHIBIT "A" FOLLMER EXCAVATING, INC 717-432-0606 6 SUMMER DR. DILLSBUR01, PA 17019 1086 S 8,2733,5., Dnre =Z3W $ d? PNCBANIh PNC B?, NA Cmtnl PA 040 1:0 3 i 3 i 2 7 381: 108 6.5080 5 wun. ee r... -d w 2 i 3 56' EXHIBIT "B" + DAVIS LANDSCAPE LTD Since 1934 Davis Landscape Ltd. Kid Proposal February 2, 2001 fo: Rich and Kay Milligan Carlisle, PA From: `ferry Hoffman, Chief Estimator Davis Landscape Ltd. Phone 4 717-545-4235 Fax# 717-545-3660 Reference Project: Rick and Kay Milligan Scope of Work: 1.)Supply all equipment and labor to install 29 Deciduous trees 4 1/2-5" caliper. 2. )Installation of aged mulch over entire planting area to a depth of I ". 3.)Fine grade seed and mulch lawn areas. 4.)Hydro-seed (no grading) disturb area of existing field. Proposal Price: $94,650.00 Clarification: 1) Supply and/or spreading of topsoil is excluded. 2) Davis Landscape to receive topsoil within one tenth of a foot from finish grade. 3) Erosion control materials (mats, netting, blankets, silt fence, temp. seed and mulch) are excluded. 4) Maintenance of plant material is until initial completion of our installation work. All maintenance beyond this time is by home owner. 5) Maintenance of seeded areas is excluded. 6) Sodding is excluded. 7) Proposal price is based on installation of project in the Spring 2001 planting season. 8) Warranty of plant material is 6 month from date of installation. 9) Proposal may be withdrawn if not accepted within 30 days. W p/bids/bids-pa/milligan 2340 Paxton Church Road. iiarrisburg PA 17; ,'J • (717) 545-4235 • Fax (717) 545-3660 146 Rupert Roaa, Raleigh, NC 27,603 • (9 S; 662-1009 • Fax (919) 662-3877 xa ==?f Ykuk'ilYi.?}L bf ._ :?-.i ni y'dvs}?vi'ee&Xe$4.. I l I R7 V 1 ?F V BARRY A. KRONTHAL, ESQUIRE Pa. Supreme Court I.D. No. 55672 MARGOLIS EDELSTEIN P. O. Box 932 Harrisburg, PA 17108-0932 Telephone: (717) 975-8114 Facsimile: (717) 975-8124 E-Mail: bronthal@margolisedelstein.com Attorneys for Boyd E. Diller, Inc. File#25250.4-0003 RICHARD E. MILLIGAN AND KAY D. MILLIGAN, HIS WIFE Plaintiffs versus COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY, CUMBERLAND COUNTY, PENNSYLVANIA: Kindly enter my appearance in the above-captioned action on behalf of Defendant, Boyd E. Diller, Inc. I am authorized to accept service on behalf of said participant in this matter. MARGOLIS Date: Baz . Kronthal I.D. No. 55672 P.O. Box 932 Harrisburg, PA 17108-0932 (717) 975-8114 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Praecipe to Enter Appearance on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on theg4A day of? 2001, and addressed as follows: Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 William Cospopoulos 831 Market Street Lemoyne, PA 17043 William Kollas 1104 Fernwood Avenue Camp Hill, PA 17011 Follmer Excavating 238 Locust Point Road Mechanicsburg, PA 17055 MARGOLIS EDELSTEIN BydLJO//_ ? Carol Moose D:U Zurich\25250.4-0003\Pimds\Pmecipe to Enter Appcarmee.8-3-01.wpd 11 c1 c ?. 'v T -' rc? ?r RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife, Plaintiffs V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC. AND FOLLMER EXCAVATING; INC., Defendants NO. 01-3823 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Andrew C. Sheely, as counsel for Defendant Follmer Excavating, Inc. in the above-captioned matter. dVXA e I Andrew C. Sheely, Esquire 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of C. Kent Price and the law firm of Thomas, Thomas, Thomas & Hafer, LLP, as counsel for Defendant Follmer Excavating, Inc. in the above-captioned matter. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire P.O. Box 999 Harrisburg, PA 17108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CERTIFICATE OF SERVICE AND NOW, this 3 day of August, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant Follmer Excavating, Inc., hereby certify that I have this day served the within Praecipe for Withdrawal/Entry of Appearance by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Jesse Raymond Ruhl, Esquire 36 South Hanover Street P,O. Box 1319 Carlisle, PA 17013 John W. Dornberger, Esquire John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 128 East Ie Avenue Conshohocken, PA 19428 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire O v (_. mC r-, Z -T r ? - cv t i RICHARD E. MILLIGAN, and KAY D. MILLIGAN, Plaintiffs V. WILLIAM WILLIAM WILLIAM WILLIAM REGENCY BOYD E. FOLLMER C. COS'TOPOULOS, C. KOLLAS, C. COSTOPOULOAS and C. KOLLAS, t/d/b/a HOMES DILLER, INC. EXCAVATING, INC. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 01-3823 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: RICHARD E. MILLIGAN and KAY D. MILLIGAN Plaintiffs, and THE LAW OFFICES OF JESSE RAYMOND RUHL Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. DATE: July 13 , 2001 Z#4?&ao Andrew C. Sheely, ire PA ID # 62469 Attorney for Defendant Follmer Excavating, Inc. 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (fax) u?nx2 RICHARD E. MILLIGAN, and KAY D. MILLIGAN, Plaintiffs V. WILLIAM WILLIAM WILLIAM WILLIAM REGENCY BOYD E. FOLLMER C. COSTOPOULOS, C. KOLLAS, C. COSTOPOULOAS and C. KOLLAS, t/d/b/a HOMES DILLER, INC. EXCAVATING, INC. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 01-3823 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT FOLLMER EXCAVATING INC. TO PLAINTIFFS' COMPLAINT Defendant Follmer Excavating, Inc., by and through counsel of Andrew C. Sheely, Esquire, hereby files these Preliminary objections pursuant to Pa. R.C.P. No. 1028 (a) to the Complaint filed by Plaintiffs, and respectfully states as follows: 1. Plaintiffs commenced the above-captioned matter on or about June 21, 2001. 2. Defendant Follmer Excavating, Inc. was served with a true and correct copy of the complaint on or about June 26, 2001. I. PRELIMINARY OBJECTION IN THE NATURE OF MOTION TO STRIKE FOR LACK OF CONFORMITY TO LAW OR RULE OF COURT PURSUANT TO Pa.R.C.P. 1028(a)(2) 3. Paragraphs 1 through and including 2 are incorporated herein by reference. 4. Counts I - IV of Plaintiffs' Complaint names five (5) separate Defendants in one count in violation of by Pa. R.C.P. No. 1020 (a) and Pa. R.C.P. No. 1020 (d) which requires that separate causes of action be set forth in separate counts. 5. The "Wherefore Clause" in Counts I - IV of Plaintiffs' Complaint contains a demand for attorney fees constituting multiple causes of action in a single count in violation of Pa. R.C.P. No. 1020 (a) which requires that separate causes of action and claims for special damages be set forth in separate counts. 6. The "Wherefore Clause" in Counts I - IV of Plaintiffs' Complaint contains a demand for punitive damages constituting multiple causes of action in a single count in violation of Pa. R.C.P. No. 1020 (a) which requires that separate causes of action and claims for special damages be set forth in separate counts. 7. The attachment of Exhibit's "A" and "B" to Plaintiffs' Complaint constitutes evidentiary material improperly attached to a pleading in violation of Pa. R.C.P. No. 1028 (a) (2) which prevents the inclusion of impertinent matter to a pleading. WHEREFORE, Defendant, Follmer Excavating, Inc. respectfully requests that this Honorable Court direct Plaintiffs to file an amended pleading to set forth separate causes of action as to each defendant, that separate causes of action be set forth in separate counts and that the evidentiary exhibits be stricken in their entirety from the complaint. II. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT TO Pa.R.C.P. 1028(a)(4) 8. Paragraphs 1 - 7 are incorporated herein as if set forth 2 at length. 9. Each of Plaintiffs' "Wherefore" clauses in Counts I - IV requests relief in the nature of attorney fees. 10. Under the facts alleged in the Complaint, there is no cause of action for attorney fees against Defendant Follmer Excavating, Inc. 11. Each of Plaintiffs' "Wherefore" clauses in Counts I - IV requests relief in the nature of punitive damages. 12. Under the facts alleged in the Complaint, there is no cause of action for punitive damages against Defendant Follmer Excavating, Inc. 13. Plaintiffs' Complaint fails to set forth a cause of action for Strict Liability in Count II against Defendant Follmer Excavating, Inc. as no sufficient facts have been averred which would support such theory of liability. 14. Plaintiffs' Complaint fails to set forth a cause of action for Negligence in Count III against Defendant Follmer Excavating, Inc. as the Complaint is void of sufficient facts to support such theory of liability as no duty of care existed or relationship existed between Plaintiffs and Defendant Follmer Excavating, Inc. 15. Plaintiffs' Complaint in Count IV fails to set forth a cause of action for Conversion against Defendant Follmer Excavating, Inc. as the Complaint is void of sufficient fact to support the theory of Conversion. 3 WHEREFORE, Defendant Follmer Excavating, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs' claims for attorney fees and punitive damages as requested in Plaintiffs' "Wherefore" clause and dismiss Counts II, III, and IV as to Defendant Follmer Excavating, Inc., or in the alternative, require that Plaintiffs file an amended pleading to set forth sufficient factual averments which would support a claim for attorney fees, punitive damages and the theories of liability as sought in Plaintiffs' Complaint. III. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION OF A MORE SPECIFIC PLEADING TO Pa.R.C.P. 1028(b)(3 16. Paragraphs 1 - 15 are incorporated herein as if set forth at length. 17. Plaintiffs' Complaint fails to set forth sufficient facts to frame a proper answer or defense to support Plaintiffs' claims against Defendant Follmer Excavating, Inc. for attorney fees. 18. Plaintiffs' Complaint fails to set forth sufficient facts to frame a proper answer or defense to support Plaintiffs' claims against Defendant Follmer Excavating, Inc. for punitive damages. 19. Paragraphs 30 through 35 of Plaintiffs' Complaint fails to allege sufficient facts which would allow Defendant Follmer Excavating, Inc. to frame a proper answer and defense to Plaintiffs' claim of strict liability against Defendant Follmer Excavating, Inc. where Plaintiffs have failed to allege any duty 4 between Plaintiffs and Defendants. 20. Paragraphs 30 through 35 of Plaintiffs' Complaint fails to allege sufficient facts which would allow Defendant Follmer Excavating, Inc. to frame a proper answer and defense to the Plaintiffs claim of strict liability against Defendant Follmer Excavating, Inc. where Plaintiffs have failed to allege or specify any inherent or dangerous activity conducted by Defendant Follmer Excavating, Inc. for the benefit of Plaintiffs. 21. Paragraphs 36 through 41 of Plaintiffs' Complaint fails to allege sufficient facts to frame a proper answer and defense to Plaintiffs' claim of negligence against Defendant Follmer Excavating, Inc. 22. Paragraphs 42 through 46 of Plaintiffs' Complaint fails to allege sufficient facts which would allow Defendant Follmer Excavating, Inc. to frame a proper answer and defense to Plaintiffs claim of conversion against Defendant Follmer Excavating, Inc. where Plaintiffs failed to allege the items converted by Defendant and the value of such items. 23. Paragraphs 42 through 46 of Plaintiffs' Complaint fails to allege sufficient facts which would allow Defendant Follmer Excavating, Inc. to frame a proper answer and defense to Plaintiffs claim of conversion against Defendant Follmer Excavating, Inc. where Plaintiffs have failed to distinguish between items allegedly damaged and items allegedly converted. 5 rv? WHEREFORE, Defendant respectfully requests that this Honorable Court require that Plaintiffs amend its complaint so as to allow Defendant to frame a proper answer and defense. Respectfully itted, Date: July 12, 2001 Andrew C. Sheely, ire PA ID # 62469 Attorney for Defendant Follmer Excavating, Inc. 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (fax) 6 CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Defendant's Preliminary Objections to Plaintiffs' Complaint upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: THE LAW OFFICES OF JESSE RAYMOND RUHL Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 Date: July 13, 2001 4!? C sz?l Andrew C Sheely, E u e 7 VERIFICATION I verify that the statements made in these Preliminary Objections are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: July 13 , 2001 C- C?JPG-Ci Ja es M. Follmer, President Follmer Excavating, Inc. 8 P 101300046 LAWOFFICES OFRALPH F. TOUCH By: Edward J. Cermanski, Esquire Attorney I.D. No. 56278 401 Penn Street, Suite 100 Reading, PA 19601 Tel. 610-320-4663 Fax 610-320-4767 Attorney for Defendant, Boyd E. Diller, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Richard E. Milligan and Kay D. Milligan his wife, Plaintiffs CIVIL DIVISION NO. 01-3823 V. William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes, Boyd E. Diller, Inc., and Follmer Ecavating, Inc. Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance in the above-entitled matter on behalf of the Defendant, Boyd E. Diller, Inc.. Dated : July 5, 2001 Edward J. Cermanski, Esquire Attorney for Defendant, Boyd E. Diller, Inc JURY TRIAL DEMANDED PANEL OF TWELVE JURORS REQUESTED CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the foregoing ENTRY OF APPEARANCE upon all parti their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class mail, postage prepaid: Jesse R. Ruhl, Esquire The Law Offices of Jesse Raymond Ruhl 36 South Hanover Street, Suite 302 Carlisle, PA 17013 William C. Costopoulos and William C. Kollas d/b/a Regency Homes, Inc. 7099 Carlisle Pike Carlisle, PA 17013 Follmer Excavating, Inc. 238 Locust Point Road Mechanicsburg, PA 17055 Dated: July 5, 2001 Edward J. Cermanski Attorney for Defendant, Boyd E. Diller, Inc. 101300046/ Cermanski N POST & SCHELL, P.C. BY: JOHN W. DORNBERGER I.D. # 69293 BY: JOHN R. CANAVAN, ESQUIRE I.D. # 84728 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. TO THE PROTHONOTARY: ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED Kindly enter my appearance on behalf of Defendants, William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/bJa Regency Homes, in connection with the above-captioned matter. Respectfully POST & S(/HELL/,/P.C. DORNBERGER, ESQUIRE CANAVAN, ESQUIRE I, Kelley A. Spangler, an employee of the law offices of Post & Schell, P.C., do hereby certify that on the date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) by sending same in the United States mail, first-class, postage prepaid: Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 Boyd E. Diller, Inc. 6820 Wertzville Road Enola, PA 17025 Follmer Excavating, Inc. 238 Locust Point Road Mechanicsburg, PA 17055 DATE: 7 10-01 ?] ?L. 'ru L' KELLEY A SPAN ER, SQUIRE (1 i'-_ p 'fi'r _'__ ?. _ ,. ?:.. r Andrew C. Sheely, Esquire 127 S. Market Street P.D. Box 95 Mechanicsburg, PA 17055 PA ID No. 62469 717-697-7050 (Phone) 717-697-7065 (Fax) RICHARD E. MILLIGAN, and KAY D. MILLIGAN, Plaintiffs V. WILLIAM WILLIAM WILLIAM WILLIAM REGENCY BOYD E. FOLLMER C. COSTOPOULOS, C. KOLLAS, C. COSTOPOULOAS and C. KOLLAS, t/d/b/a HOMES DILLER, INC. EXCAVATING, INC. M IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-3823 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED TO: CURTIS R. LONG, PROTHONOTARY COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PRAECIPE FOR ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendant Follmer Excavating, Inc. in the above-captioned matter. AA40t?? ANDREW C. SHEELY, ES UIRE July/) , 2001 Pa. I.D. No. 62469 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 (717) 697-7050 r CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Praecipe for Entry of Appearance upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: THE LAW OFFICES OF JESSE RAYMOND RUHL Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 Date: July 13 , 2001 A?? -- Andrew C. Sheely, E e 2 _?,?u? ? ? ?,b ? . _., n . ? =?r???? _ ... _ ?, i i CASE NO: 2001-03823 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLIGAN RICHARD E ET AL VS COSTOPOULOS WILLIAM C ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon COSTOPOULOS WILLIAM C the DEFENDANT' at 1200:00 HOURS, on the 25th day of June 2001 at 831 MARKET STREET LEMOYNE, PA 1`7043 by handing to AMI GELBAUGH, OFFICE MANAGER 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 18.00 Service 9.92 Affidavit .00 Surcharge 10.00 .00 37.92 Sworn and Subscribed to before me this Aa- day of o2,er? A. D . Prf0thonotary So Answers: ?00-- R. Thomas Kline 06/29/2001 JESSE RUHL By : l7_??? .D1 SHERIFF'S RETURN - REGULAR CASE NO: 2001-03823 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLIGAN RICHARD E ET AL VS COSTOPOULOS WILLIAM C ET AL BRIAN BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KOLLAS,WILLIAM C the DEFENDANT , at 1355:00 HOURS, on the 25th day of June , 2001 at 1104 FERNWOOD AVENUE CAMP HILL, PA 17011 by handing to DAWN BAREFOOT, LEGAL ASSISTANT 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 6.00 Service 8.68 Affidavit .00 Surcharge 10.00 .00 24.68 Sworn and Subscribed to before me this a3.?A_ day of o4vv A. D. Pr t onotary So Answers: R. Thomas Kline 06/29/2001 JESSE RUHL By: 44, AJ Deputy heriff SHERIFF'S RETURN - REGULAR CASE NO: 2001-03823 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLIGAN RICHARD E ET AL VS COSTOPOULOS WILLIAM C ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT Sc NOTICE was served upon COSTOPOULOS,WILLIAM C T/D/B/A REGENCY HOMES the DEFENDANT at 1538:00 HOURS, on the 25th day of June 2001 at 7099 CARLISLE PIKE CARLISLE, PA 17013 by handing to LYNDE RENARD, MANAGER 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 6.00 Service 3.72 Affidavit .00 Surcharge 10.00 .00 19.72 Sworn and Subscribed to before me this day of Jao ( A.D. Q..? p L3 7v?eee.? r thonotary So Answers: R. Thomas Kline 06/29/2001 JESSE RUHL By: Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2001-03823 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLIGAN RICHARD E ET AL VS COSTOPOULOS WILLIAM C ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland' County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KOLLAS WILLIAM C T/D/B/A REGENCY HOMES the DEFENDANT at 1538:00 HOURS, on the 25th day of June 2001 at 7099 CARLISLE PIKE CARLISLE, PA 17013 by handing to LYNDE RENARD, MANAGER 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this ,2 u day of 0,j0. 24510 r A. D. P onotary So Answers:- R. Thomas Kline 1 06/29/2001 JESSE RUHL By: kz?e A ? Deputy 5herif SHERIFF'S RETURN - REGULAR CASE NO: 2001-03823 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLIGAN RICHARD E ET AL VS COSTOPOULOS WILLIAM C ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FOLLMER,EXCAVATING INC the DEFENDANT at 1030:00 HOURS, on the 28th day of June 2001 at 238 LOCUST POINT ROAD MECHANICSBURG, PA 17055 by handing to TERRY EBERLY, DISPATCHER 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: So Answers: Docketing 6.00 Service 4.34 Affidavit .00 001 Surcharge 10.00 R. Thomas Kline nn L V . J 2 06/29/2001 JESSE RUHL Sworn and Subscribed to before me this a 3A4_ day of L11? ?v?l A.D. ?q? tf6PJ. Pr t1ionotary By . 4 d c ? Deputy SYle'riff SHERIFF'S RETURN - REGULAR CASE NO: 2001-03823 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLIGAN RICHARD E ET AL VS COSTOPOULOS WILLIAM C ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon DILLER BOYD,E INC the DEFENDANT , at 0956:00 HOURS, on the 28th day of June 2001 at 6820 WERTZVILLE ROAD 17025 by handing to THELMA DILLER, OFFICE MANAGER 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 6.00 Service 6.20 Affidavit .00 Surcharge 10.00 .00 22.20 Sworn and Subscribed to before me this a3+rA day of oZ (9th A. D. .? T thonotary ' So Answers: R. Thomas Kline 06/29/2001 JESSE RUHL By - Deputy S *tiff POST & SCHELL, P.C. BY: JOHN W. DORNBERGER I.D. # 69293 BY: JOHN R. CANAVAN, ESQUIRE I.D. # 84728 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, T/DB/A REGENCY HOMES IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED Defendants. ORDER AND NOW, this day of 2001, upon consideration of the Preliminary Objections of Defendants William C. Costopoulus, William C. Kollas, and William C. Costopoulus and William C. Kollas t/b/d/a Regency Homes, and any response thereto, it is hereby ORDERED and DECREED that Defendants' Preliminary Objections are GRANTED and Plaintiffs' claims for trespass, strict liability, negligence and conversion are DISMISSED with prejudice. J. w ? POST & SCHELL, P.C. BY: JOHN W. DORN13ERGER I.D. # 69293 BY: JOHN R. CANAVAN, ESQUIRE I.D. # 84728 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. ORDER AND NOW, this day of 2001, upon consideration of the Preliminary Objections of Defendants William C. Costopoulus, William C. Kollas, and William C. Costopoulus and William C. Kollas t/b/d/a Regency Homes, and any response thereto, it is hereby ORDERED and DECREED that Defendants' Preliminary Objections are GRANTED. It is further ORDERED and DECREED: 1. Plaintiffs' claims for trespass, strict liability, negligence and conversion are DISMISSED with prejudice; 2. Plaintiffs will file an Amended Complaint within thirty (30) days setting forth with specificity material facts in support of the conversion claim. ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, T/D/B/A REGENCY HOMES IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED J. POST & SCHELL, P.C. BY: JOHN W.DORNBERGER I.D. # 69293 BY: JOHN R. CANAVAN, ESQUIRE I.D. #84728 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, T/DB/A REGENCY HOMES IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS WILLIAM C. COSTOPOULUS, WILLIAM C. KOLLAS, AND WILLIAM C. COSTOPOULUS AND WILLIAM C. KOLLAS TB/DA REGENCY HOMES TO PLAINTIFFS' COMPLAINT Defendants William C. Costopoulus, William C. Kollas, and William C. Costopoulus and William C. Kollas t/b/d/a Regency Homes ("Objecting Defendants'), by and through their counsel, Post & Schell, P.C., hereby file these preliminary objections in the nature of demurrers and motions to strike to the Complaint of Plaintiffs Richard E. Milligan and Kay D. Milligan ("Plaintiffs"), as follows: 1. On or around June 21, 2001, Plaintiffs filed an action for property damage allegedly sustained due to the actions of Objecting Defendants and the other named defendants. A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A." 2. In their Complaint, Plaintiffs allege Objecting Defendants were the developers of a tract of land known as Kingsbrook Development. 3. The Complaint further alleges that Objecting Defendants made repeated trespasses onto the property owned by Plaintiffs during the course of their development of Kingsbrook Development. 4. Plaintiffs' Complaint alleges the following counts against all defendants, including Objecting Defendants: trespass; strict liability; negligence; and, conversion. 5. Plaintiffs allege that Defendants Boyd E. Diller, Inc. ("Diller") and Follmer Excavating, Inc. ("Folhner") were acting as the agents, servants and/or employees of Objecting Defendants. See paragraphs 8 and 10 of Exhibit "A." 1. Demurrer to Trespass, Strict Liability and Negligence Claims A. Demurrer to Trespass Claim 6. Rule 1028(a)(4) allows any party to file Preliminary Objections to any pleading for "legal insufficiency of a pleading." 7. Plaintiffs allege that Objecting Defendants trespassed on Plaintiffs' property "through their agents, servants and/or employees," presumably Defendants Diller and Follmer. 8. It is well-established Pennsylvania law that "the employer of an independent contractor is not liable for physical harm caused another by an act or omission of the contractor or his servant " Donnelly v. Septa, _ Pa.Super. _, 708 A.2d 145, 148 (1998). 9. Under Pennsylvania law, "an employer may be liable for the intentional torts committed by a servant, but not for those committed by an independent contractor." S= Mahon v. City of Bethlehem, 898 F.Supp. 310 (E.D.Pa. 1995), citing Canan v. Divine Providence Hospital, 287 Pa.Super. 364, 430 A.2d 647 (1980). -2- 10. As a matter of law, Objecting Defendants may not be held liable for the alleged intentional torts of their independent contractors, Boyd and Folhner. WHEREFORE, Objecting Defendants respectfully request that this Honorable Court enter an Order dismissing Plaintiffs' claims for trespass. B. Demurrer to Strict Liability Claim 11. Objecting Defendants incorporate paragraphs 1 through 10 as if set forth fully at length herein. 12. Under Pennsylvania law, one who employs an independent contractor may be liable for the negligence of the independent contractor when the work entails an abnormally dangerous activity, a peculiar risk or a special danger. 13. Under Section 520 of the Restatement (Second) of Torts, which has been adopted by the Pennsylvania Supreme Court, the factors to be considered in determining whether an activity is ultrahazardous or abnormally dangerous include the extent to which an activity is not a matter of common usage and the inappropriateness of the activity for the place where it is performed. Villari v. Termincx International, Inc-, 677 F.Supp. 330 (E.D.Pa. 1987). 14, "All construction work involves a risk of some harm; only where the work is done under unusually dangerous circumstances does it involve a `special danger' or `peculiar risk,"' (as contemplated by Sections 416 and 427 of the Restatement (Second) of Torts). Edwards v. Franklin & Marshall Co11ePe, 444 Pa.Super. 1, 663 A.2d 187 (1995) (parenthetical added). 15, Plaintiffs fail to describe the manner in which the operation of the construction machinery caused the alleged property damage; they simply proclaim that the operation of heavy equipment is an abnormally dangerous activity. See Motter v. Meadows Limited Partnership, 451 Pa.Super. 520, 680 A.2d 887 (1996) (holding that an employer of an independent contractor was not -3- liable for the collapse of a trench wall because it was an obvious and unavoidable risk faced by excavating companies every day and does not present a special danger or peculiar risk). 16. Plaintiffs' Complaint acknowledges that Objecting Defendants were involved in the development of residential homes on the land adjacent to Plaintiffs' property, where the presence of heavy construction machinery was not only appropriate, but necessary. 17. Plaintiffs have not alleged that Objecting Defendants, in the position of employer of the independent contractors, should have foreseen the risks involved and taken protective measures, nor have Plaintiffs alleged that the specific tasks performed were substantially out of the ordinary. See Ortiz Y. Ra-el Development Corporation, 365 Pa.Super. 48, 528 A.2d A.2d 1355 (1987). 18. As a matter of law, Objecting Defendants may not be held liable for strict liability as Plaintiffs have failed to show the existence of an abnormally dangerous activity undertaken by Objecting Defendants or the independent contractors, Diller and Follmer. WHEREFORE, Objecting Defendants respectfully request that this Honorable Court enter an Order dismissing Plaintiffs' claims for strict liability. C. Demurrer to Negligence Claim 19. Objecting Defendants incorporate paragraphs 1 through 18 as if set forth fully at length herein. 20. Pennsylvania case law has held that an employer of an independent contractor "is not required to contemplate or anticipate abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of operative details of the work which ordinarily may be expected to be carried out with proper care." Molter, supra. -4- 21. It is well-established Pennsylvania law that "the employer of an independent contractor is not liable for physical harm caused another by an act or omission of the contractor or his servant." Donnelly v. 4 n a, sup . 22. As a matter of law, Objecting Defendants may not be held liable for the alleged negligence of their independent contractors, Boyd and Follmer. WHEREFORE, Objecting Defendants respectfully request that this Honorable Court enter an Order dismissing Plaintiffs' claims for negligence. if. Motion to Strike Entire Complaint for Insufficient Specificity 23. Objecting Defendants incorporate paragraphs 1 through 22 as if set forth fully at length herein. 24. Rule 1028(a)(3) of the Pennsylvania Rules of Civil Procedure allows any party to file Preliminary Objections to any pleading for "insufficient specificity in a pleading." 25. Rule 1019(a) of the Pennsylvania Rules of Civil Procedure requires a parry to plead "[t]he material facts on which a cause of action or defense is based ... in a concise and summary form." This requirement is designed to apprise the opposing party of what the pleading party intends to establish at trial. 26. Pennsylvania courts have held the following, regarding Pa.R.C.P. 1019(a): "The purpose of 1019(a) is to require the pleader to disclose the `material facts' sufficient to enable the adverse party to prepare his case. A complaint therefore must do more than give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. It should formulate the issues by fully summarizing the material facts. `Material facts' are `ultimate facts,' i.e., those facts essential to support the claim. Evidence from which such facts may be inferred not only need not, but should not be alleged. Allegations will withstand challenge under 1019(a) if (1) they contain averments of all the facts the plaintiff will eventually have to prove in order to -5- recover, and (2) they are sufficiently specific as to enable the defendant to prepare his defense." Smi h vWag=, 403 Pa.Super. 316, 588 A.2d 1308, 1310 (1991) (citations omitted), (quoting ak r v. Raneos, 229 Pa.Super. 333, 349-350, 324 A.2d 498, 505-506 (1974)). 27. Plaintiffs' Complaint contains claims for trespass, strict liability, negligence and conversion, for property damage allegedly suffered during a "trespass" apparently involving heavy construction equipment. See Exhibit "A" and paragraphs 32 and 33 of Exhibit "A." 28. Plaintiffs' trespass and negligence claims fail to include any description of the nature of the trespass or the specific actions undertaken by Objecting Defendants to accomplish the alleged trespass; Plaintiffs simply use conclusory language alleging trespass and describe the damage alleged to have occurred. See Exhibit "A." 29. Plaintiffs' strict liability claim merely proclaims the operation of heavy construction machinery "an abnormally dangerous and ultrahazardous activity" and lists property damage allegedly sustained. Plaintiffs do not describe how the operation of the heavy construction machinery caused their alleged property damage. 30. Plaintiffs' conversion claim lacks specificity as to the specific act and/or acts undertaken by Objecting Defendants which deprived Plaintiffs of the use or possession of their property without their consent. 31. In order for Objecting Defendants to prepare a defense, Plaintiffs must plead factual averments in greater detail than that set forth in their Complaint and, consequently, Plaintiffs' vague and conclusory pleading is defective as a matter of law. WHEREFORE, Objecting Defendants respectfully request that this Honorable Court enter an Order dismissing Plaintiffs' Complaint or requiring a more specific Complaint within thirty (30) days. -6- i III. Demurrer to Punitive Damages Claim 32. Objecting Defendants incorporate paragraphs 1 through 31 as if set forth fully at length herein. 33. Punitive damages are awarded where a Defendant's conduct is particularly egregious or outrageous, with evil motive, or in reckless disregard for another's rights. Martin v. Johns- Manville-Corp., _ Pa. _, 494 A.2d 1088, 1096 (1985). 34. Plaintiffs' Complaint fails to set forth facts demonstrating that Objecting Defendants behaved in this regard. As such, Plaintiffs fail to state a claim for punitive damages, either expressly or implicitly. 35. A showing of gross negligence is insufficient to support an award of punitive damages. 40 P.S. §1301.812-A(b). 36. Under the facts alleged in Plaintiffs' Complaint, punitive damages may not be imposed on Objecting Defendants for the actions of others, namely the independent contractors employed by Objecting Defendants, Diller and Follmer. 37. As a matter of law, Plaintiffs have failed to set forth a claim for punitive damages for which relief can be granted. -7- WHEREFORE, Objecting Defendants respectfully request that this Honorable Court dismiss Plaintiffs' claims for punitive damages. Respectfully POS P.C. DATE: ,11& Ia JOHN fL CANAVAN, ESQ. Attorney for Defendants William C. Costopoulus, William C. Kollas, t/b/d/a Regency Homes -8- I, John R. Canavan, Attorney forDefendants William C. Costopoulus, William C Kollas, and William C. Costopoulus and William C. Kollas t/b/d/a Regency Homes do hereby swear and affirm that the facts and matters set forth in the foregoing document are true and correct to best of my knowledge, information and belief. The undersigned understands that the statements made therein are subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. DATE: Ii I&I d I JOHN M CANAV -9- JrJV1 •riY hiHC INJLK&N .t I,VJ. tf-Lli- 1 1U 10 VALLEY YUKGt tfK? JUV-1S-Ot 04:30PN FROMNyen?Batnnar 717 291 16094 4 fi10-770-9726 T-327 P.003/018 F-T66 08126101 16:01 FAX r Jw K00W Mdl>, E -(- PAAq.M. f317Y la Y. 1h"W&1nt VA, s„ 1319 C=1WkvA11013 (7173111+?/]+Inwl RICHARD E. MILLIGAN and KAY D. MILLIGAN, iris wife plaintiffs. V. W111j M C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, Vd/b/a REGENCY ROMES, BOYD E. DIL.IER, INC., and FOLLMEREXCAVATING, INC, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA cvm ACTION - LAW NO. o /- 818 t?4 fytJ1 7.t • ? r. MRY TWAL DEMANDED NOTICE TO DBFEND YOU HAVE BEEN SU&D 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 {fling in waiting with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff, Yea may lose money or property or other rights. important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE_ IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT ARE YOU CAN GET LEGAL FIBI T°, Court Adwinietrator Cumberland County Courthouse Fourth Floor Carlisle, PA 17013 (717) 240-6200 rp.UE Copy FROM R#-CORD ttl 7ostUnony WWW t 1' *MjUWAj0011W radar' wd Ota seal of saki Z d1 r.1+•?V, P0. ?r JUN 26 '01 11:16 6103276857 PAGE.04 '"' •tfT:tMU IMUKAVI.t C.US. ti-16- 1 10:14 M-26-01 04:31 PM VALLEY t'UKtit bK, PRO bers-Benner 310-T70-9720 717 231 1609:# 5 os?2>s/oi y5:02 M T-327 P.OO4/Of8 P-Ire 4 A VI'SO • LISTED HA SIDE DEMANDADO/A EN CORTE. Si Uted desea deftulmse do Ins dcmandas que se presentan mss adolame en las siguientes pagims, lobe tamer action dentro de les proximos veinta (20) dies deapues de la notification de amDemanda yAviso radicando petwWrnente o par media de un abogedo tma carupaxeceaeia escrife. y radicando en la Corte par escrito sus defenses de, y objections a, las demandaspresenttda, aqua to Comm auya. Sc le adviem do glre si uted falls de temar action como se desedbe anteriormante, ei caso puede proceder sin rated y un fallo par cualquier sums, de ftero m1amada an la danenda o cualquier etra reclamsdon a remedio solicitado pox el detnendaute puede ser dictado en contre soya par la Corte sin mas aviso adicioml. Usted puede perdcr diuero o pmpiedad u olive de rhos hzVoxtames pars ustcd. LISTED DBBE LLEVAR ESTB DOCUMMO A SU ABOGADO INNMDIATANMWM SI USTED NO TIENE UN ABOGADO O NO PUMP PAGARLE A UNO, U AM O VAYA A LA SIOUDDIn OFICINA PARA AVMUGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Court Atintinistrator Cumberland County Courthouse Fourth Floot Carlisle, PA 17013 (717) 240-0200 JUN 26 '01 11:16 6103276857 PP6E.05 SENT t3Y:ENC INSUKANCt Ca. ; 6-26- 1 10:14 : VALLEY FOKGE bK- 717 291 1609;# 6 JUN-25-01 04:31PM FRO"Yers-Benner 910-770-9728 7-327 P 005/018 F-768 06125/01 15:02 FAX - 4 4 Jura sa7R101N1 Ruh, Aauwq LD. Nw 13709 364. HWWW9tr,a4 YA. Box 1319 C%,JjA. a'A 11013 C717)241-413 RICHARD F. MILMAN and KAY D. MILLIGAN, his wife Plaintiffs, Y. WILLIAM C. COSTOPOULOS, WIIJ IAM C. KOU AS, WILLIAM C. COSTOPOULOS and WILLIAM C. K01?.LAS, VW& REGENCY HOMES, BOYD E. DILLM INC-, and FOLLMER EXCAVATING, INC. Defendants. IN THE OURT CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - LAW NO. 01- 3r.23 LA'_ J -,a-- ' 1511 ?... JURY TRIAL DEMANDED COMPLAINT NOW COME PlamtiM Richard E. Milligan and Kay D. Milligan, by Bud through then attornay, Jesse Raymond Rulll, and file the within Complaint as follows: 1. Plaintiffs Richard E. Millig m and Kay D. Artilligan am husband and wife with a present address located at 55 Ridge Avenue, Carlisle. PA 17013. 2. Defendant Will= C. Costopoulos is an adult indlAdual with an address 10e at 831 A.r N V?1Y?lle.? Market Sheet, Lemoyne, PA 17043. t` W JUN 26 '01 11:17 6103276857 PAGE.06 StNT BY:EMC INSUKANCt COQ. J121-25-01 04:91PM FROM-44yars-Banner 06125/01 15:0Z FAX 6-26- 1 10:14 ; VALLEY FORGE BR- 717 291 1609;# 7 010-T10-8T20 T-327 P-006/010 F-706 r 3, pefen&mt William C. ICollas is an adult individual with an address located at 1104 Ferawood Avenue, Camp Hill, PA 17011- 4. Upon information and belied, Defendants Coatopoulos and yollas are putners, trading and doing business as Regency Homes. 5. Regency Homes 16 a developer of a twat of land situated adjacent to the property owned by Plaintiffs. 6. Regency Homes bas an address located at 7099 Carlisle Pike, Carlisle, PA 17013. 7. Defendant BoYd E. Diller, Inc. is a ootporadon with an address of 6820 Wetttville Road Enola. PA 17025. 8. Defendant Diller is in the earth moving and excavation business and at all times, p®rtiuattt bweto was acting as the agent, servant and/or employee of Defendants Costopouios, Kollas and/or Regency Homes. 9. Defendant Foll mer Excavating, Inc. is a corporation with as addicas located at 238 Locust Poirot Road, Mecb2: icaburg, PA 17055. Z JUN 26 101 11:17 6103276857 PAGE.07 Jt1Vl •LSY:uic ImUKAIVLz 1,05. : b-20- 1 1U:14 VAULT tMit BK- 717 291 1609:9 8 JUN-25-01 04:11 PM FROM-Myers-Bonny 610-770-0726 T-827 P.007/018 F-768 09!76/01 18:02 FAa r 10. Defendant Follmer is in the earth lmovtng and excavation business and at all times, pertinent hereto was acting as Idle sgent, servant and/or employee of Defendants Costopoulos, Kailas and/or Regency Flames. FACTUAL BAC'KMOUND 11. Defendants Costopoulos Ko11as and RegartaY Homes we developers of a tract of land known as Kingsbrook Development. 12. The Mgsbrook Development property and the Plaintiffs share a common property lice, and the KingObrook Development property abuts Plaintiffs' Property to the east of Plaintiffs' ProPVrtY- 13. In the course of developing their Property known as Ktngabr00k Development' Defendants Costopoulos, Kolias and Acg=OY Homan, through the acts and conduct of their employees, servants, agents, workm, independent contractors and/or others acting on their behalf made repeated and unlawful trespasses onto the property owned by Plaintiffs. 3 JUN 26 '01 11:17 6103276857 PAGE.OG SENT BY:EMC 1NSUKANCE CO$. ; 6-26- 1 ; JUN-25-01 04:32PM FRO"yers-Brmar ?06/2s/01 10:02 FAX 10:15 VALLEY FORGE BR- . 717 291 1609;# 9 610-T70-8726 T-32T P.008/018 F-788 14. These trespasses were made tbrough tite intentional acts of sll Defixtdants hemto for the purpose of increasing the value of Yingsbrook Development while diminishing the value of Plaintiffs' property. • 15. 'These repeated trespasses occutsod between the time of Match. 2000 and continued through the fall of 2000. 16. 'fhe repeated and unlawful trespasses were made without any claim, of right thereto and were tech in complete disregard for the rights of Plaintiffs. 17. Moreover, the trespasses continued even after advised by Plaintiffs that the Defendants were trespassing and that the trespasses must cease. 18. Nevertheless, Defendants refttscd to abide by the Plainiim' demand that the trespasses cease, and Defcadents continued with their WIOM willflll, reckless aod/or negligent trespass upon the Plaintiffs' property. 19. These trespasses oontinued despite the fact that Defendants' admitted their trespasses end offered to pay for some of the dam$ge caused to Plaintiffs' property. Sal Defendant fr.nmee. obeok No. 1086 in the amount of $400.00, a copy of which is attached hereto as Exblbit `W' and incorporated herein by reference. 4 JUN 26 '01 11:17 6103276857 PAGE.09 'JtAl by :tTdC INJUKANCt C04. b-Lb- 1 10:1b VALLtT tUK(it M, 717 201 lb05;910 JUN-26-01 04:32PM FROM-Mrar"wer 610-TTO-0729 T-32T P. 002/010 F-700 06/25101 15;OZ FAX 20. This admission and acknowledgment of the trespass by their W"I is binding upon Defendants Costopoulos, Kollw and Regency Homes. 21. The sum of Soo.o0 offered by Defendant Follmer is totally inadequate to compensate plaintiff for the, damages Suffered. 22. As a result of the trespass, PlainWflfs suffbred damage to their property in the following manner. a. Plaintiffs' mail box was damaged; b. t Defendants removed the top soil from Plaintiffs' property; c, Def gnd,aatr removed tuuleh fivrn Plaintiffs' property; d.. Defendants removed and/or destroyed shrubbery on Pleintitt's' property; e. Defendants removed and/or destroyed approximately 29 deliduOus 'fees Of approximately 4% "- 5" calipec> plus other trees of smaller caliper. f. Defendants' destroyed the balance of natural beauty and cull rated landscaping that Plaintiffs wtre fostering; and g. Defendants interfered with PlainWs' right to be free from invasion. 23. In addition, Plaintiff were damsgcd in that the trespass wtll require them to re-landscape the areas wbich.wv= the subject of the trespass. 5 JUN 26 '01 i1:ie 6103276857 PAGE.10 JC?YI 0(•[1%l, IIYJUIVlUVY,f_ I.VJ. . O-LU- 1 lU•10 . 4AJ I M rmuc or,- ? fl! Lyl 10Ua'7.811 JUN-25-01 04:32PN fR%Hyers-Benner 610-770-27Ze MN P.010/018 f-788 0e/2s/ci 10:02 RAX 24. As a result of the trespasses, Plaintiffs have been dammed in an aznount in 1,11-" of $94,650.00 as set forth on the Bid Proposal dared Fabrnaty 2" 2001. a COPY of which is attwbed hereto at Exhibit 'B" and incorporated herein by raference. COUNTI -TRXSPASS (Ptsinttffs v. All Defendants) 25. The foregoing averments ate incorporated herein by rek cl,4a. 26. Defendants, through their agents, servants and/or employees knowingly, rookieesly and/or negligently trespassed upon the Plaintiffs` VOPerty- 27. The aforesaid notions of Defendants, their agents, servants and/or employees damaged and wrOnSfully in%Tfaed withPlsintiffs` PrOPe1'ty. and Plaintiit§ rights as property owners as set forth above. 2S. The acts of Defendants were outrageous, reckless, callous, performed with rcokless indifference, and watts perPormod to inCreaso the value of Defendants' development while diminishing the value Of Plaintiffs' prOPeo ty- 29, As a casalt, the conduct of Defendants entitles Plaietif'dr to an award of punitive dmmages- 6 JUN 26 '01 11:18 6103276857 PAGE.11 SENT`BY:EOIC INSURANCE.COS. 6-26- 1 : 10:15 VAUEY FORGE BR- 717 231 1609412 JON-25-01 0442PM FROM-Myers-Benner 610-T70-0724 T-327 P.011/018 F-760 `W25/01 15:03 FAX WH MFORE PlaintiM Richard B. Malligaa and Kay D. Milligan demand judgment in their favor and against Dofendants !n an awount. is excess of $94,650.40, plus punitive damage,, attomey's foes, inmost and costs o£suit. COLNT YI - STRICT LIABILITY glainfiM v. All Defetd=tl) 30. The foregoing avertnents are incorporated herein by reference. 31. An individual trespassing and responsible for the dent motion Of property is strictly liable for any and all harm caused without regard for negllgonce. 32. Moreover, the operation of heavy construction equipment is an abnormally dang0raw and ultrahazatdous activity- 33. Defendants were at all times pertinent bereto engaged in an abnormally dangerous and ulgahazardous activity. 34. Plaintiffs suffered d=095 to their property in the following manner as a result of 'he invasion- a. Plaintiffs' mail box was damaged: b. Aefendants removed the top soil from Plaintiffs' property', 7 JUN 26 '01 11:18 6103276857 PAGE. 12 30NA 6r•EiP1l. IIVJUKNIYI,E I,VJ_ O?LO- 1 JLW-28-01 04:12PM FROK-Myers-Banner 0,8/25/01 15:03 PAX lU•10 Valir l UVKUE DNI + /1! 201 18U.7:81J 610-770-8720 T-221 P.012/018 F-768 C. Defendants renwved mulch from Plaintiffs' property; d. Defendants removed and/or destroyed shrubbery on Pleinliffa' Property: e. Defendants removed and/or destroyed approximateiy 29 deciduous trees of approximately 4%2 "- 5" caliper, plus other trees of smaller caliper. £ Defendants' destroyed the balance of natural beauty and cultivated landscaping that Plaintiffs ware fosteriug; and 91 Defendants intetfered with PlaittM' right to be free from itwasiom 35. As aresult, Defendants are strictly liable for the damages suffered by Plaintiffs. WjjMrORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in all amount in excess of $94,650.00, plus pmutive damages, attorney's fees, interest and costs of suit. COM 11I - NEGLIGENCF (Pialatiffs v. AD Defendants) 36. The foregoing avem=0 are incarporated herein by reference. 37. Plaintiffl: suffered damages to their property as a result of the ttogligence Of the Defendants, their agents, savants and/or employees acting within the course and/or scope of their employment. 8 JUN 26 '01 11:18 6103276857 PRGE.13 SENT.BY:ERIC INSURAPICE,CO$. ; 6-26- 1 10:16 ; JUN-28-01 04:33PU FR0**sr0enner Os/2s/ol 15:03 FAY VALLEY FORGE BR- ' ' 717 291 1609;#14 818-770-8728 T-927 P.0131018 F-T88 33. Dcf6ndanis had a duty to avoid trespassing onto Plaintiffs' property. 39. Defmdonts breached this duty by carelosely, recklessly, negligently or wantonly trespassing upon Plaintiffs' property- 40. The negli,erne, carelessness, recklessness or wantoness of Dafendame, their ageoM servants and/or employees consisted of the fallowing-- (a) Failure to establish or idea* the exact property lines before proceeding with the operation of heavymachimery; (b) W illfirily and recklessly doshroying shrubbery and trees before ascertaining ft ownership thereof; (c) Callously disregarding Plaintiffs' assertion oftho trespass, and continuing trespassing upon the Plaintiffs' property, (d) Failing to properly direct and supervise their employers, agents, contractors, servants andlorwot'anen. 41. The Plaintiffs have been damaged by the negligence, carelessness, recklessness or wautoness of the Defendants, and the negligence, carelessness, recklessness and/or wantoness of the Defendants was the proximate cause of Plaintiff'3' 1woty. 9 JUN 26 '01 11:19 6103276857 PBGE.14 3011 LST;M, 11V3UXA.NLr- I,VZ). : b-Zb- 1 S lUmlb ; VALL r tMit tW- tirl 201 l(jUU;rx15 JUN-26-01 04:2aPY FROI+*vro-B4nnsr 810-770-8128 T-32T P.014/016 F-T0t 06/25/01 10:0] FAX WHEREFORE Piaintiffa Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in an amount in excess of $94,650.00. Plus punitive damages, attorney's fees, interest and costs of suit. COUNT N - CONVERSION {plaintiffs v_ All Defeadants) 42. The foregoing avameutg are inooVorated herein by reference. 43. As set forth morn flatly above, Defendants converted the property of Plaintiffs, 44. The Defendants converted PlaitltiM' Property for their a" peraonol, commercial advantage, to the futancial disadvantage ofPlaintiffs. 1 43. The oonversion of Plaintiffs' property was done intentionally and callously so that thE value of Kin$abrook Development would be augmented 46. Converting Plaintiffs' property for the comnareial advantage of the Defendants was outrageous conduct which enritlea plaintiffs to an award of punitive damages. 10 JUN 26 101 11:19 6103276857 PRGE.15 StNT BY:tMC IMUKA4NU5LU?. 6-2b- 1 10:16 VALLEY FORGE BK- 717 291 1609416 JUN-28-01 04:33P4 FROM-Myers-Benner 610-TTO-BT26 T-327 P.015/B18 F-T6! ;93 FAx n.lvliUigan de0aind judgneat iun Plainriffs Rimed 1?-lviiilige'+t and 1CaY plus p,tive danuV, WI$ 0 650 their favor and against pe{endents in to ®mo'>nt in t Xcca of S94, attonleY's fecs, interest and oasts of suit- DATA June 21, 2001 A=1D140. 55798 36 S- Hanover Street P.0- Box 1319 C;We, YA 17013 (717) 241-4813 Arre?? fo P.a?la?en 11 JUN 26 '01 11:19 6103276857 PAGE.16 auvr of uut nvauauv t?tv?. o-zo- 1 to t? VAt1 -1 rVrUt LWI MM M00417 1UN-28-01 04 :33PS FROM Ilyarc-Benner 010 T70-?72fi T-92T P.0101016 F-768 oeiaaial l.a:os FA% ?itIFIC1?.T10N of 41 Ys C SA Sec. 4101, ea to thep?>,es Coi nplatht ICxY L) • ?filhgan deposes and 501, subj set forth to the foco8a'ng illatibeoizu 'elating to uo*' falsificatl°r to sutb tip, itigpt?,9tiou andbelief aj:c tmo and corveet to the best of ha Ul"W JUN 26 '01 11:19 6103276857 PAGE.17 JrJVi.lsr uu? IVJUKAVItyLU?. 0'ZO 1 Wall VA11J_Y rl1KUt W, 717 291 1609;#1S -? JUN-25-01 84:33PM FROM-Myers-Benner 610-770-0T28 T-327 P.C1T/016 F-788 Oeig?/oi 15;03 FAX - M8, KK EXCAVATIN% INC 6rt-LsQLgm, P/l IMte TUN 26 '01 11:19 ee 5080 5 Z W 108 tali efNFeAgN J 6103276857 PAGE.18 SCNT tsY:EMC INSUKANCE+COS. 6-26- 1 10:17 VALLEY FORGE Bfe- ` 717 291 1609419 JUN-25-01 04:93PM FROM-Myers-Banner 610-770-Q726 T-327 P.010/016 i-T60 ? 1g:OS Ff_--r^ ,dB/25101 V i•L pAV?S LANDSCAPE zero uavis l.andscapo Ltd. Bid PrOPOSa1 f ebruarY 2.2001 fo. VS h and Kay Milligan Cartisto, PA PrAm:'1*eny Rot'fmarl, Chief Estimator Dave Landscape Ltd. FaO 7 t7-545-3660 phone # 711-545-42:35 Reference Project: Rick and K.ay Nblhgan and tabor to install 20 Deciduous trees 4 1/7,S" calipor. Scope of Work: depth of 1 ,.)Supply all egalpTnent hutting areato a 2.)ttrstallanon of aged mulch over entire p seed and iuuleh lawn areas n held. 3 )' dco-seod (no gradhtg) disturb area of d Puce. $94,650.00 4.)Ny poop Cjary'(te>tt10A: cf Io snit is excluded. afoot ftra finish grade. 1) Supply for spreading P soil vjlthig one tenth mulch) ace 2) Davis Landscape to recertre topsoil blankets. silt e' temp. seed and 3) gtoaion control materials (mats, excluded. is until initial completion of out i?llahon work. All 4) Mainteuanoe of plant material home owner. maintemnec beyond this time is by 5) Mainteoarue of seeded wens is excluded. 6) Sodding is excluded. in the Spring Zoo i pianting season. 7) Proposal price is based on installation of project 8) Warr'arvEy of plant material Is 6 month from date of installation 9) proposal may be withdrawn if not accepted within 30 days. wp/bids/blds paimill Pn yyLO ,axton Road. liarnaburg, FR 171'10 • ;717) 545 4236 • Fear (717) 646-3660 7 49 Rupert pond. (ta1e151,, hFC 27603 • :916) 662.1008 'Fax (919} 662-3677 JUN 26 '01 11:20 6103276657 PAGE.19 4 " CERTIFICATE OF SERVICE 4 d% F I, Kelley A. Spangler, an employee of the law offices of Post & Schell, P.C., do hereby certify that on the date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) by sending same in the United States mail, first-class, postage prepaid: Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 Edward J. Cermanski, Esquire Law Office of Ralph F. Touch 401 Penn Street, Suite 100 Reading, PA 19601 (Attorney for Boyd E. Diller, Inc.) Follmer Excavating, Inc. 238 Locust Point Road Mechanicsburg, PA 17055 0, L DATE: 0 KEL Y A. SPANGLER, Jesse Raymond Buhl Attorney I.D. No. 55798 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 (717) 241-4813 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED REPLY TO PRELIMINARY OBJECTIONS OF DEFENDANT FOLLMER EXCAVATING, INC. NOW COME Plaintiffs Richard E. Milligan and Kay D. Milligan, by their attorney, Jesse Raymond Ruhl, and file the within Reply to Preliminary Objections of Defendant Folhner Excavating, Inc. as follows: 1. Admitted. 2. Admitted. I. PRELIMINARY OBJECTION IN THE NATURE OF MOTION TO STRIKE FOR LACK OF CONFORMITY TO LAW OR RULE OF COURT PURSUANT TO Pa. R.C.P. 1028 (a) (2) 3. Admitted. 4. Denied. It is denied that Plaintiffs' Complaint violates Pa. R. Civ. P. 1020. 5. Denied. It is denied that Plaintiffs' Complaint violates Pa. R. Civ. P. 1020. 6. Denied. It is denied that Plaintiffs' Complaint violates Pa. R. Civ. P. 1020. 7. Denied. It is denied that Exhibit "A" and "B" are improperly attached to Plaintiffs' Complaint. WHEREFORE Plaintiffs respectfully request that the Court enter an Order dismissing Defendant Follmer's Preliminary Objections. II. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT TO Pa. R.C.P. 1028 (a) (4) 8. Admitted. 2 9. Admitted. 10. Denied. It is denied that Plaintiffs have no claim for attorney's fees against Follmer. 11. Admitted. 12. Denied. It si specifically denied that there is no cause of action for punitive damages against Defendant Folhner. 13. Denied. It is specifically denied that Plaintiffs' Complaint fails to set forth a cause of action for strict liability against Defendant Follmer. 14. Denied. It is specifically denied that the Complaint is void of sufficient facts to support a theory of liability for negligence against Defendant Follmer. 15. Denied. It is specifically denied that the Complaint is void of sufficient facts to support a theory of liability for conversion against Defendant Follmer. WHEREFORE Plaintiffs respectfully request that the Court enter an Order dismissing Defendant Follmer's Preliminary Objections. 3 III. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION OF A MORE SPECIFIC PLEADING TO Pa. R.C.P. 1028 (b) (3) 16. Admitted. 17. Denied. It is specifically denied that Plaintiffs' Complaint fails to set forth sufficient facts to frame a proper answer or defense to support Plaintiffs' claims against Follmer for attorney's fees. 18. Denied. It is specifically denied that Plaintiffs' Complaint fails to set forth sufficient facts to frame a proper answer or defense to support Plaintiffs' claims against Follmer for punitive damages. 19. Denied. It is specifically denied that Paragraphs 30 through 35 of Plaintiffs' Complaint fail to allege sufficient facts which would allow Defendant Folliner Excavating, Inc. to frame a proper answer and defense to Plaintiffs' claim of strict liability against Defendant Follmer Excavating, Inc. where Plaintiffs have failed to allege any duty between Plaintiffs and Defendants. 20. Denied. It is denied that Paragraphs 30 through 35 of Plaintiffs' Complaint fails to allege sufficient facts which would allow Defendant Follxner Excavating, Inc. to frame a proper answer and defense to the Plaintiffs claim of strict liability against Defendant Follmer Excavating, Inc. where Plaintiffs have failed to allege or specify any inherent or dangerous activity conducted by Defendant Follmer Excavating, Inc. for the benefit of Plaintiffs. 21. Denied. It is denied that Paragraphs 36 through 41 of Plaintiffs' Complaint fails to allege sufficient facts to frame a proper answer and defense to Plaintiffs' claim of negligence against Defendant Follmer Excavating, Inc. 22. Denied. It is specifically denied that Paragraphs 42 through 46 of Plaintiffs' Complaint fails to allege sufficient facts which would allow Defendant Folhner Excavating, Inc. to frame a proper answer and defense to Plaintiffs claim of conversion against Defendant Follmer Excavating, hic. where Plaintiffs failed to allege the items converted by Defendant and the value of such items. 23. Denied. It is specifically denied that Paragraphs 42 through 46 of Plaintiffs' Complaint fails to allege sufficient facts which would allow Defendant Follmer Excavating, Inc. to frame a proper answer and defense to Plaintiffs' claim of conversion against Defendant Folhner Excavating, hic. where Plaintiffs have failed to distinguish between items allegedly damaged and items allegedly converted. WHEREFORE Plaintiffs respectfully request that the Court enter an Order dismissing Defendant Follmer's Preliminary Objections. LAW OFFICES OF JESSE R. DATED: August 31, 2000 By: P Attorney I.D. # 55798 36F. Hanover Street C lisle, PA 17013 (717) 241-4813 (717) 241-4829 (fax) Attorney for the Plaintiffs \\PC2\fim fan\ cu U\MilligmVcply to Poffm P.O's.w d 6 Certificate of Service I hereby certify that on August 2, 2001, a true and correct copy of the foregoing Reply to Preliminary Objections was served by first class mail, postage prepaid, upon the following: Andrew C. Sheely, Esquire 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Edward J. Cermanski, Esquire Law Offices of Ralph F. Touch 401 Perm Street, Suite 100 Reading, PA 19601 Lawrence V. Young, Esquire CGA Law Firm 29 N. Duke Street York, PA 17401-1282 C) G _a rn Cl rrs oi ? c3 , u? F_ tv j f R PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate). TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Cast. CAPTION OF CASE (entire caption must be stated in full) RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife (Plaintiff) VS. WILLIAM C. COSTOPOULUS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULUS and WILLIAM C. KOLLAS, t.d.b.a RSMCY HOMES, BOYD E. DILLER, INC. and FOLLPER EXCAVATING, INC. (Defendant) No. 01-3823 Civil 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's dennaer to complaint, etc.): Preliminary Objections to Plaintiffs' Complaint of Defendant Follmer Excavating, Inc. 2. Identify counsel who will argue case: (a) for plaintiff: Address: (b) for defendant: Address: Jesse Raymond Ruhl, Esquire 36 S. Hanover Street Carlisle, PA 17013 John R. Canavan, Esq. C. Kent Price, Esq. 240 Grandview Avenue P.O. BOX 999 Camp Hill, PA 17011 Harrisburg, PA 17108 3. I will notify all parties in writing within two days that this case bas been listed for argument. 4. Argument Court Date: October 24, 2001 Dated: September 17, 2001 Atto ey for Plaintiffs r Certificate of Service I hereby certify that on September 17, 2001, a true and correct copy of the foregoing Praecipe was served by first class mail, postage prepaid, upon the following: C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Be-., 999 Harrisburg, PA 17108 John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Lawrence V. Young, Esquire CGA Law Firm 29 N. Duke Street York, PA 17401-1282 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 4V Jesse R and Ruhl ,ua3euiv'as;xAiw .c u..wo-?ae?+, z" .rx ,v=?H „_ _., 16 en C ' rf , tV -s, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) RICHARD E. MILLIGAN and KAY D. MULLIGAN, his wife (Plaintiff) VS. WILLIAM C. COSTOPOUIOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOUTAS and WILLIAM C. KOLLAS, t.d.b.a REGENCY HOMES, BM E. DILLER, INC. and FOLIMER EXCAVATING, INC. (Defendant) No. 01-3823 Civil A; 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections to Plaintiffs' Complaint of Defendants William C. Costopoulos, William C. Kollas, and Williams C. Costopoulos and William C. Kollas t.d.b.a Regency Hanes 2. Identify counsel who will argue case: (a) for plaintiff: Jesse Raymond Rohl, Esquire Address: 36 S. Hanover Street Carlisle, PA 17013 (b) for defendant: Address: John R. Canavan, Esq. 240 Grandview Avenue Camp Hill, PA 17011 C. Kent Price, Esq. P.O. Box 999 Harrisburg, PA 17108 3. 1 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 17, 2001 Atto for Plaintiffs Certificate of Service I hereby certify that on September 17, 2001, a true and correct copy of the foregoing Praecipe was served by first class mail, postage prepaid, upon the following: John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 Lawrence V. Young, Esquire CGA Law Firm 29 N. Duke Street York, PA 17401-1282 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 G. C/Jr M ?} Cli RICHARD E. MILLIGAN AND KAY MILLIGAN, his wife, PLAINTIFFS V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS AND WILLIAM C KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-3823 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS. AND WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS. T/D/B/A REGENCY HOMES, AND FOLLMER EXCAVATING, INC.. TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this '?b day of October, 2001, IT IS ORDERED: (1) Count If averring Strict Liability of plaintiffs' complaint, IS STRICKEN. (2) Claims in plaintiffs' complaint for attorney fees, ARE STRICKEN. (3) All other preliminary objections of defendants William C. Costopoulos, William C. Kollas, and William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes, and Follmer Excavating, Inc., to plaintiffs' complaint, ARE DISMISSED. Byytthe•Court, Edga . Ba ley I ?' 3 i? pri 1 NO Iv? Jesse Raymond Ruhl, Esquire For Plaintiffs John R. Canavan, Esquire For William C. Costopoulos, William C. Kollas, and William C. Costopoulos and William C. Kollas t/d/b/a Regency Homes C. Kent Price, Esquire For Follmer Excavating, Inc. :saa RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC. AND FOLLMER EXCAVATING, INC., Defendants NOTICE TO: Richard E. Milligan and Kay D. Milligan c/o Jesse Raymond Ruh[, Esquire 350 West Market Street York, PA 17401 Boyd E. Diller, Inc. c/o Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 CIVIL ACTION - LAW JURY TRIAL DEMANDED YOU ARE HEREBY notified to plead to the enclosed New Matter and Crossclaims within twenty (20) days of service hereof or a default judgment may be entered against you. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANT FOLLMER EXCAVATING, INC. DATED: 1 ) j a i )01 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife, Plaintiffs V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC. AND FOLLMER EXCAVATING, INC., Defendants 1. Admitted. NO. 01-3823 CIVIL ACTION - LAW JURY TRIAL DEMANDED 2. The allegations are addressed to a party other than the answering Defendant and, therefore, no answer is required. 3. The allegations are addressed to a parry other than the answering Defendant and, therefore, no answer is required. 4. The allegations are addressed to a party other than the answering Defendant and, therefore, no answer is required. 5. The allegations are addressed to a party other than the answering Defendant and, therefore, no answer is required. 6. The allegations are addressed to a party other than the answering IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Defendant and, therefore, no answer is required. 7. The allegations are addressed to a party other than the answering Defendant and, therefore, no answer is required. 8. The allegations are addressed to a party other than the answering Defendant and, therefore, no answer is required. 9. Admitted. 10. Admitted in part, denied in part. It is admitted that the answering Defendant is in the earth moving and excavation business. The remaining allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 11. The allegations are addressed to a party other than the answering Defendant and, therefore, no answer is required. 12. Denied. After reasonable investigation, the answering Defendant is without information or knowledge sufficient to form a belief as to the truth of the allegations and proof is demanded. 13. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 14. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 15. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 16. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 17. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 18. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 19. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 20. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 21. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 22. Denied. The allegations regarding trespass are conclusions of law and/or fact to which no answer is required. The remaining allegations are denied on the basis that, after reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth thereof. By way of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 23. Denied. The allegations regarding trespass are conclusions of law and/or fact to which no answer is required. The remaining allegations are denied on the basis that, after reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth thereof. By way of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 24. Denied. The allegations regarding trespass are conclusions of law and/or fact to which no answer is required. The remaining allegations are denied on the basis that, after reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth thereof. By way of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). COUNT I - TRESPASS 25. The answers set forth above in Paragraphs 1 through 24 are incorporated herein by reference. 26. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 27. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 28. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 29. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant Follmer Excavating, Inc. demands judgment in its favor and against Plaintiffs. COUNT II - STRICT LIABILITY 30.-35. This Count has been stricken by Order of Court dated October 30, 2001. COUNT III - NEGLIGENCE 36. The answers set forth above in Paragraphs 1 through 29 are incorporated herein by reference. 37. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 38. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 39. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 40. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 41. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant Follmer Excavating, Inc. demands judgment in its favor and against Plaintiffs. COUNT IV - CONVERSION 42. The answers set forth above in Paragraphs 1 through 29 and 36 through 41 are incorporated herein by reference. 43. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 44. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 45. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). 46. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, the allegations are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant Follmer Excavating, Inc. demands judgment in its favor and against plaintiffs. NEW MATTER 47. Plaintiffs' Complaint fails to set forth causes of action against the answering Defendant upon which relief may be granted. 48. The answering Defendant did not trespass upon Plaintiffs' property. In the alternative, to the extent that the evidence may show that the answering Defendant did so trespass, which is denied, such conduct was not done knowingly, intentionally, recklessly, wantonly or negligently. 49. The answering Defendant was not negligent. 50. The answering Defendant did not cause or contribute to causing any of the alleged damages by negligent acts or omissions. 51. Any conduct on the part of the answering Defendant was not a proximate cause of the damages alleged by the Plaintiffs. 52. The answering Defendant did not convert any property of the Plaintiffs. 53. Any damages suffered by the Plaintiffs may have been due to acts or omissions on the part of third parties for which the answering Defendant is not liable or responsible. 54. The Plaintiffs may have failed to mitigate their damages. 55. Plaintiffs are not entitled to punitive damages. WHEREFORE, Defendant Follmer Excavating, Inc. demands judgment in its favor and against the Plaintiffs. 56. If the matters alleged in the Complaint occurred as alleged therein, which is specifically denied, then Defendant Boyd E. Diller, Inc. is solely liable to the Plaintiffs. 57. In the alternative, Defendant Boyd E. Diller, Inc. is jointly and/or severally liable with the answering Defendant, and/or Defendant Boyd E. Diller, Inc. is liable over to the answering Defendant for contribution and indemnity, the existence of any laibility on the part of the answering Defendant being specifically denied. 58. The answering Defendant asserts this crossclaim against Defendant Boyd E. Diller, Inc. in order to preserve its rights of contribution and indemnity. WHEREFORE, Defendant Follmer Excavating, Inc. demands that any judgment entered in favor of the Plaintiffs be entered solely against Defendant Boyd E. Diller, Inc. In the alternative, Defendant Follmer Excavating, Inc. demands that in the event judgment is entered against it, any liability on its part being specifically denied, that said judgment be entered jointly and/or severally against Defendant Boyd E. Diller, Inc.together with Defendant Follmer Excavating, Inc., or that Defendant Boyd E. Diller, Inc. be held liable over to Defendant Follmer Excavating, Inc. for contribution or indemnity. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR DEFENDANT FOLLMER EXCAVATING, INC. 148958.1 VERIFICATION I, C. Kent Price, state that I am attorney for Defendant Follmer Excavating, Inc. that 1 make this Verification on behalf of Defendant Follmer Excavating, Inc. and that I am familiar with the facts and allegations set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my knowledge, information and belief. This verification and statement is made pursuant to 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. C. Kent Price, Esquire DATE: ? I J `? ?? Q I CERTIFICATE OF SERVICE AND NOW, this 2)' da of November, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant Follmer Excavating, Inc., hereby certify that I have this day served the within Answer with New Matter and Crossclaims on Behalf of Defendant Follmer Excavating, Inc. by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Jesse Raymond Ruhl, Esquire 350 West Market Street York, PA 17401 John W. Dornberger, Esquire John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire -.: ?? r i _ (_ n=_ ?? ?.- ?. ? y _ -? e RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife, Plaintiffs V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC. AND FOLLMER EXCAVATING, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY OF DEFENDANT FOLLMER EXCAVATING, INC. TO CROSSCLAIM OF DEFENDANTS COSTOPOUL , KOLLAS AND REGENCY HOMES 66. Paragraphs 1 through 58 of Defendant Follmer Excavating, Inc.'s Answer and New Matter are incorporated herein by reference. 67. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, it is specifically denied that the damages alleged to have been suffered by the Plaintiffs were caused by any negligent, careless or reckless act and/or omission of the answering Defendant, or that they were due to the breach of any obligation on the part of the answering Defendant. 68. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, it specifically denied that the answering Defendant is liable to the Plaintiffs, or is jointly and/or severally liable with Defendants or liable over to Defendants on the causes alleged by the Plaintiffs. 69. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, it is specifically denied that the answering Defendant is liable for common law indemnity, contractual indemnity and/or contribution to the Defendants on the causes alleged by the Plaintiffs. WHEREFORE, Defendant Follmer Excavating, Inc. demands judgment in its favor and against all other parties hereto. THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR DEFENDANT FOLLMER EXCAVATING, INC. VERIFICATION I, C. Kent Price, state that I am attorney for Defendant Follmer Excavating, Inc. that I make this Verification on behalf of Defendant Follmer Excavating, Inc. and that 1 am familiar with the facts and allegations set forth in the foregoing document. I have read the foregoing document and hereby affirm that it is true and correct to the best of my knowledge, information and belief. This verification and statement is made pursuant to 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Q: -L?Vyt C ( C. Kent Price, Esquire DATE: CERTIFICATE OF SERVICE AND NOW, this day of January, 2002, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant Follmer Excavating, Inc., hereby certify that I have this day served the within Reply of Defendant Follmer Excavating, Inc. to Crossclaim of Defendants Costopoulos, Kollas and Regency Homes by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Jesse Raymond Ruhl, Esquire 350 West Market Street York, PA 17401 John W. Dornberger, Esquire John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 THOMAS, THOMAS & HAFER, LLP C. Kent Price, Esquire w _ ??, ?•fi?iYHh-vmo..®-?i, " +b+ d'.kreoYiffiW+aL?pa' 4Y:F.' x. ?c (? ?? \? G I ?} tai ?r' -- , u, r r . _„? 3a` !_ yis; ?V -G C, 4 JAN 0 4 2002, POST & SCHELL, P.C. BY: JOHN W. DORNBERGER I.D. # 69293 BY: JOHN R. CANAVAN, ESQUIRE I.D. # 84728 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, (incorrectly identified as) T/D/B/A REGENCY HOMES RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiffs and Co-Defendants: You are hereby noticed to plead to the enclosed New Matter and Crossclaims of William C. Costopoulos, William C. Kollas and William C. Costopoulos and William C. Kollas, (incorrectly identified by Plaintiffs as) t/b/d/a Regency Homes, within tlwenty/10) days of service hereof or a default may be entered against you. JOHN RICANAVAN, ESQUIRE Attorney for Defendants William C. Costopoulos, William C. Kollas and William C. Costopoulos and William C. Kollas, (incorrectly identified as) t/b/d/a DATE: i 13102 Regency Homes POST & SCHELL, P.C. BY: JOHN W. DORNBERGER I.D. # 69293 BY: JOHN R. CANAVAN, ESQUIRE I.D. # 84728 240 GRANDVIEW AVENUE CAMP HILL, PA 17011 (717) 731-1970 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILL" C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, (incorrectly identified as) T/DB/A REGENCY HOMES IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED ANSWER, NEW MATTER AND CROSSCLAIMS OF DEFENDANTS WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, AND WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, (incorrectly identified by Plaintiffs as) TB/D/A REGENCY HOMES Defendants William C. Costopoulos, William C. Kollas, and William C. Costopoulos and William C. Kollas, (incorrectly identified by Plaintiffs as) t/b/d/a Regency Homes ("Defendants"), by and through their undersigned counsel, Post & Schell, P.C., hereby files this Answer, New Matter and Crossclaims to Plaintiffs' Complaint as follows: 1. Admitted. Upon information and belief, it is admitted only that Plaintiffs are correctly identified and live at the address set forth in the corresponding averment. -1- 2. Admitted. 3. Admitted. 4. Admitted in part; denied in part. It is admitted only that Defendant Costopoulos and Kollas have a partnership which is involved in the development of real estate and conducts business as Kollas and Costopoulos. It is denied that Defendants Kollas and Costopoulos operate a partnership which trades under the name Regency Homes. All remaining allegations are denied as conclusions of law. 5. Denied. It is denied that Regency Homes is an entity or is the developer of a tract of land situated adjacent to the property owned by Plaintiffs. Any remaining allegations are denied as conclusions of law. 6. Admitted in part; denied in part. It is denied that Regency Homes is an entity or has an address at 7099 Carlisle Pike, Carlisle, Pennsylvania. It is admitted that Regency Homes, Inc. has an address at 7099 Carlisle Pike, Carlisle, Pennsylvania. Any remaining allegations are denied as conclusions of law. 7. Denied. The corresponding averments are directed to a party other than Defendants and, accordingly, no response is required. To the extent any response is required, the corresponding averments are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 8. Denied. The corresponding averments are directed to a parry other than Defendants and, accordingly, no response is required. To the extent a response is required, it is denied that Defendant Diller was the agent, servant and/or employee of Defendants. All remaining allegations are denied as conclusions of law. -2- 9. Denied. The corresponding averments are directed to a party other than Defendants and, accordingly, no response is required. To the extent any response is required, the corresponding averments are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 10. Denied. The corresponding averments are directed to a party other than Defendants and, accordingly, no response is required. To the extent a response is required, it is denied that Defendant Diller was the agent, servant and/or employee of Defendants. All remaining allegations are denied as conclusions of law. 11. Admitted in part; denied in part. It is admitted that Defendants Kollas and Costopoulos are the developers of a tract of land known as Kingsbrook. It is denied that Defendants Kollas and Costopoulos trade as Regency Homes. Any remaining allegations are denied as conclusions of law. 12. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. Further, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 13. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 14. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. -3- 15. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 16. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(c) of the Pennsylvania Rules of Civil Procedure. 17. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 18. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 19. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a -4- belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 20. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that Defendants Follmer and/or Diller were the agent(s) of Defendants. 21. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 22. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 23. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. 24. Denied. The corresponding allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. To the extent any further response is required, after -5- reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law. COUNTI 25. Defendants incorporate by reference their Answers to paragraphs 1 through 24 as if set forth at length herein. 26. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that any party to this lawsuit was the agent, servant and/or employee of Defendants. 27. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. Farther, it is specifically denied that any party to this lawsuit was the agent, servant and/or employee of Defendants. 28. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 29. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor and against Plaintiffs. COUNT II -6- 30.-35. This Count has been stricken in its entirety by Order of this Court dated October 30, 2001. COUNT III 36. Defendants incorporate by reference their Answers to paragraphs 1 through 29 as if set forth at length herein. 37. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. Further, it is specifically denied that any parry to this lawsuit was the agent, servant and/or employee of Defendants. 38. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 39. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 40. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. Further, it is specifically denied that any party to this lawsuit was the agent, servant and/or employee of Defendants. 41. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. -7- WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor and against Plaintiffs. COUNT IV 42. Defendants incorporate by reference their Answers to paragraphs 1 through 41 as it set forth at length herein. 43. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 44. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 45. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 46. Denied. The corresponding allegations constitute conclusions of law to which no response is required. To the extent a response is required, the allegations are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor and against Plaintiffs. NEW MATTER 47. Plaintiffs have failed to state a claim upon which relief may be granted. -8- 48. Defendants assert all defenses, limitations, rights and/or remedies set forth in any agreement entered between the parties and/or their predecessors-in-interest. 49. Plaintiffs' claims may be barred or limited by the Statute of Limitations. 50. Plaintiffs' claims may be barred or limited by the affirmative defense of consent. 51. Plaintiffs' claims may be barred or limited by the Doctrines of Waiver and/or Release. 52. Plaintiffs' claims may be barred or limited because they assumed the risk of the occurrences alleged in their Complaint. 53. Plaintiffs' damages, if any, were caused by their own comparative and/or contributory negligence. 54. Plaintiffs' claims may be barred or limited by the Doctrine of Estoppel. 55. Defendants' actions and/or omissions were privileged. 56. Plaintiffs are not entitled to recovery as a matter of law and/or equity. 57. Defendants may have had no responsibility for the area in question. 58. Any damages suffered by Plaintiffs were, in whole or in part, the result of an act of God and/or the natural changing of the land. 59. Plaintiffs' claims are barred or limited by the doctrines of res judicata or collateral estoppel. 60. Plaintiffs' claims are barred or limited by the Doctrine of Spoilation of Evidence. 61. Plaintiffs damages were caused by their failure to maintain their property in a safe and proper manner. -9- 62. Plaintiffs' alleged damages were the result of the actions, omissions and/or breach of obligations of third parties over whom Defendant had no responsibility and for whom Defendant is not liable. 63. Plaintiffs have failed to mitigate their damages. 64. The actions and/or omissions of Defendants were not the proximate cause of Plaintiffs' alleged damages. 65. The damages are not recoverable under the applicable law. WHEREFORE, Defendants respectfully requests that this Honorable Court enter judgment in their favor and against Plaintiffs. CROSSCLAIMS 66. Defendants incorporate by reference the averments contained in paragraphs 1 through 65 of this Answer as if set forth at length herein. 67. If the damages were suffered by Plaintiffs as alleged, the same were not caused by Defendants, but a cause thereof was the negligence, carelessness, recklessness, breach of obligations and other liability producing conduct of Defendants Boyd E. Diller, Inc. and Follmer Excavating, Inc. 68. Boyd E. Diller, hie. and Follmer Excavating, Inc. are liable to Plaintiffs or are jointly and/or severally liable with Defendants or are liable over to Defendants for any monies required to be paid by Defendants. 69. If the damages were suffered by Plaintiffs as alleged, the same being denied, Boyd E. Diller, Inc. and Follmer Excavating, Inc. are liable for common law indemnity, contractual indemnity and/or contribution to Defendants on the cause of action declared upon by Plaintiffs. -10- WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor and against Boyd E. Diller, Inc. and Follmer Excavating, Inc. Respectfully submitted, POST & SCHELL. P By: "I A41 1 l_? JOtor R. CANAVAN, ESQ. At ey for Defendants William C. Costopoulos, William C. Kollas, and William C. Costopoulos and William C. Kollas, (incorrectly identified as) DATE: I t/d/b/a Regency Homes ? 3 0 Z -11- VERIFICATION I, WILLIAM C. KOLLAS, ESQUIRE, do hereby swear and affirm that the facts and matters set forth in the foregoing documents 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.A. 4904, relating to unsworn falsification to authorities. BY: 4? WILLIAM C. KOLLAS, ESQUIRE DATE: CERTIFICATE OF SERVICE I, John R. Canavan, an attorney of the law offices of Post & Schell, P.C., do hereby certify that on the date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) by sending same in the United States mail, first-class, postage prepaid: Jesse Raymond Ruhl, Esquire 350 W. Market Street York, PA 17401 Barry A. Kronthal, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 (Attorney for Boyd E. Diller, Inc.) C. Kent Price, Esquire THOMAS, THOMAS & HAFER P.O. Box 999 Harrisburg, PA 17108 (Attorney for Follmer Excavating, Inc.) DATE: l 3 0 JOHN If CANAVAN, ESQUIRE f^.J Z? r n, c? r RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED PLAINTIFFS', REPLY TO. NEW MATTER OF DEFENDANT FOLLMER EXCAVATING, INC. NOW COME Plaintiffs Richard E. Milligan and Kay D. Milligan, by their attorney, Jesse Raymond Ruhl, and file the within Reply to New Matter of Defendant Folhner Excavating, Inc., as follows: 47. Denied. The averments contained in paragraph 47 of Defendant's New Matter are conclusions of law to which no response is required. To the extent a response is required, the averments are denied. 48. Denied. It is specifically denied that "Defendant did not trespass upon Plaintiffs' property." To the contrary, Defendant Follmer trespassed upon Plaintiffs' property knowingly, intentionally, recklessly, wantonly or negligently, and Mr. Folhner admitted that he did so trespass. ?.I 49. Denied. It is specifically denied that Answering Defendant was not negligent. 50. Denied. It is specifically denied that Answering Defendant did not cause or contribute to causing any of the alleged damages by negligent acts or omissions. To the contrary, Plaintiffs' damages were caused by the acts and omissions of Answering Defendants. 51. Denied. It is specifically denied that Answering Defendant's conduct was not a proximate cause of Plaintiffs' damages. To the contrary, Answering Defendant caused Plaintiffs' damage. 52. Denied. It is specifically denied that Answering Defendant did not convert any property of the Plaintiffs. 53. Denied. It is specifically denied that any damages suffered by Plaintiffs' may have been due to acts or omissions on the part of third parties for which the Answering Defendant is not liable or responsible. To the contrary, Answering Defendant's conduct caused the damage suffered by Plaintiffs. 54. Denied. It is specifically denied that Plaintiffs are not entitled to punitive damages. 2 WHEREFORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants Follmer Excavating in an amount in excess of $94,650.00, plus punitive damages, attorney's fees, interest and costs of suit. April 29, 2002 LAW OFFICE OF JESSE RAYMOND RUHL Jesse Attomp.D. #55798 350 Vest Market Street York, PA 17401 (717) 854-0066 (717) 854-4339 (fax) Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on April 29, 2002, a true and correct copy of the foregoing Plaintiffs' Reply to New Matter of Defendant Follmer Excavating, Inc., was served by first class mail, postage prepaid, upon the following: John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 Lawrence V. Young, Esquire CGA Law Firm 29 N. Duke Street York, PA 17401-1282 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 z ;M kU?l Jess /Raymond CJ ?' __ f'`=` , 'U I" .. - t_ : , ?'- ? >C- -_ }' ` _' ? ' - C :? ? 'i"i C? ?? RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife, Plaintiffs V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC. AND FOLLMER EXCAVATING, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO: CUMBERLAND COUNTY PROTHONOTARY Please enter the appearance of W. Darren Powell, Esquire, of the law firm of Thomas, Thomas & Hafer, LLP, as counsel for Defendant Follmer Excavating, Inc., in the above matter. Dated: / O Z I.D. No. 68953 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendant, Follmer Excavating, Inc. (717) 237-7154 CERTIFICATE OF SERVICE I, Kim M. Lehman, a secretary with Thomas, Thomas & Hafer, LLP, hereby certify that a copy of the foregoing Entry of Appearance was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Jesse Raymond Ruhl, Esquire 350 West Market Street York, PA 17401 John W. Dornberger, Esquire John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Dated: / -'-Zoz- , L //" / - Kim M. Lehman ? C i M (TI __F ? M (TI ?r Z t'_ ;' 3? r rw POST & SCHELL, P.C. BY: PAUL W.GREGO I.D. #:39701 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO: 01 3823 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendants, William C. Costopoulos, William D. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes, in the above-captioned matter. POST & SC LL, P.C. By: Paul . Grego, Esquire I.D. No. 39701 Attorney for Defendants I. CERTIFICATE OF SERVICE I, Anne E. Esh, Paralegal to Paul W. Grego, Esquire of the law offices of Post & Schell, P.C., do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) by sending same in the United States mail, first-class, postage prepaid: Jesse Raymond Ruhl, Esquire 350 W. Market Street York, PA 17401 Barry A. Kronthal, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 (Attorney for Boyd E. Diller, Inc.) C. Kent Price, Esquire THOMAS, THOMAS & HAFER P.O. Box 999 Harrisburg, PA 17108 (Attorney for Follmer Excavating, Inc.) BY: " (e r'xJ ' DATE: G J? `I ANNE E. ESH, PARALEGAL -2- -n4 Ob ?-r .T BARRY A. KRONTHAL, ESQUIRE Pa. Supreme Court I.D. No. 55672 MARGOLIS EDELSTEIN P. O. Box 932 Harrisburg, PA 17108-0932 Telephone: (717) 975-8114 Facsimile: (717) 975-8124 E-Mail: bkronthal@margolisedelstein.com Attorneys for Boyd E. Diller, Inc. File#25250.4-0003 RICHARD E. MILLIGAN AND KAY D. MILLIGAN, HIS WIFE Plaintiffs versus WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 NOTICE TO PLEAD To: Richard E. Milligan and Kay D. Milligan c/o Jesse Raymond Ruhl, Esquire 350 W. Market Street York, PA 17401 William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes c/o Paul W. Grego, Esquire 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605 Follmer Excavating c/o W. Darren Powell, Esquire C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 YOU ARE HEREBY NOTIFIED to plead to the enclosed ANSWER WITH NEW MATTER AND CROSSCLAIM OF DEFENDANT, BOYD E. DILLER, INC., within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submitted, /Y8/oy Harrisburg, PA 17108-0932 717-975-8114 Attorney for Defendant, Boyd E. Diller P.O. Box 932 BARRY A. KRONTHAL, ESQUIRE Pa. Supreme Court I.D. No. 55672 MARGOLIS EDELSTEIN P. O. Box 932 Harrisburg, PA 17108-0932 Telephone: (717) 975-8114 Facsimile: (717) 975-8124 E-Mail: bkronthal@margolisedelstein.com RICHARD E. MILLIGAN AND KAY D. MILLIGAN, HIS WIFE Plaintiffs versus Attorneys for Boyd E. Diller, Inc. File#25250.4-0003 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants ANSWER WITH NEW MATTER AND CROSSCLAIM, OF DEFENDANT, BOYD E. DILLER, INC., TO THE COMPLAINT OF PLAINTIFFS, RICHARD E. AND KAY D. MILLIGAN AND NOW, comes Defendant, Boyd E. Diller, Inc. ("Diller"), by and through its counsel, Margolis Edelstein, and hereby files this Answer with New Matter and Crossclaim, to the Complaint of Plaintiffs, Richard E. Milligan and Kay D. Milligan (collectively referred to as "Plaintiffs"), averring the following in support thereof: ANSWER 1. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. 2. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. 3. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. 4. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. 5. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. 6. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. 7. Admitted. 8. Admitted in part and denied in part. It is admitted that Diller was, inter alia, is in the earth moving and excavation business at all times relevant hereto. By way of further answer, the allegations of this Paragraph concerning whether Diller was acting as the agent, servant, and/or employee of Defendants, William C. Costopoulos, William C. Kollas and/or Regency Homes, state a conclusion of law to which no response is required and they are, therefore, denied. 9. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. 10, Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. FACTUAL BACKGROUND 11. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 12. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 13. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 14. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 15. Denied. After reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 16. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 17. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, after reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. Further, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 18. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, after reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. Further, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 19. Admitted in part and denied in part. It is admitted that attached to Plaintiff s Complaint appears to be Draft No. 1086 in the amount of $400.00. The remaining averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, after reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the remaining averments of this Paragraph and they are, therefore, denied. Further, the remaining averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 20. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 21. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 22. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, after reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. Further, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 23. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, after reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. Further, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 24. Admitted in part and denied in part. It is admitted that attached to Plaintiff's Complaint as Exhibit "B" is a document entitled Davis Landscape Ltd., Bid Proposal. The document, being in writing, speaks for itself, and the averments relating thereto are, therefore, denied. The remaining averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, after reasonable investigation, Diller is without knowledge or information sufficient to form a belief as to the truth of the averments of this Paragraph and they are, therefore, denied. Further, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). WHEREFORE, Defendant, Boyd E. Diller, Inc., respectfully request judgment in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. COUNT I- TRESPASS (Plaintiffs v. All Defendants) 25. The answers contained in Paragraphs 1 through 24 inclusive hereof, are incorporated by reference herein as if set forth in their entirety. 26. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 27. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 28. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 29. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). WHEREFORE, Defendant, Boyd E. Diller, Inc., respectfully request judgment in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. COUNT II- STRICT LIABILITY (Plaintiffs v. All Defendants) 30. The answers contained in Paragraphs 1 through 29 inclusive hereof, are incorporated by reference herein as if set forth in their entirety. 31.-35. This Count has been stricken in its entirety by Order of Court dated October 30, 2001. WHEREFORE, Defendant, Boyd E. Diller, Inc., respectfully request judgment in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. COUNT III- NEGLIGENCE (Plaintiffs v. All Defendants) 36. The answers contained in Paragraphs 1 through 35 inclusive hereof, are incorporated by reference herein as if set forth in their entirety. 37. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 38. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 39. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 40. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 41. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). WHEREFORE, Defendant, Boyd E. Diller, Inc., respectfully request judgment in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. COUNT IV- CONVERSION (Plaintiffs v. All Defendants) 42. The answers contained in Paragraphs 1 through 41 inclusive hereof, are incorporated by reference herein as if set forth in their entirety. 43. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 44. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 45. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). 46. Denied. The averments of this Paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this Paragraph are generally denied, pursuant to Pa. R.C.P. No. 1029(e). WHEREFORE, Defendant, Boyd E. Diller, hic., respectfully request judgment in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. NEW MATTER 47. The answers contained in Paragraphs 1 through 46 inclusive hereof, are incorporated by reference herein as if set forth in their entirety. 48. Plaintiffs' Complaint fails to set forth causes of action against Diller upon which relief may be granted. 49. Diller did not trespass upon Plaintiffs' property. In the alternative, to the extent that the evidence may show that Diller did so trespass, which is denied, such conduct was not done knowingly, intentionally, recklessly, wantonly or negligently. 50. Diller was not negligent. 51. Diller did not cause or contribute to causing any of the alleged damages by negligent acts or omissions. 52. Any conduct on the part of Diller was not a proximate cause of the damages alleged by the Plaintiffs. 53. Diller did not convert any property of the Plaintiffs. 54. Any damages suffered by the Plaintiffs may have been due to acts or omissions on the part of third parties for which Diller is not liable or responsible. 55. The Plaintiffs may have failed to mitigate their damages. 56. Plaintiffs are not entitled to punitive damages. 57. Plaintiffs' claims, if any, were caused by the conduct of others, for whom Diller is not legally or otherwise responsible 58. Plaintiffs' claims, if any, are barred by the applicable statute of limitations. 59. Plaintiffs' claims, if any, may be barred or limited by the affirmative defense of consent. 60. Plaintiffs' claims, if any, may be barred or limited by the doctrines of waiver and/or release. 61. Plaintiffs' claims, if any, are barred by the doctrines of contributory and comparative negligence and/or assumption of the risks. 62. Plaintiffs' claims, if any, may be barred or limited by the doctrine of estoppel. 63. Diller's actions were privileged. 64. Plaintiffs' claims, if any, are barred or limited by the doctrines of res judicata and/or collateral estoppel. 65. Plaintiffs' claims, if any, are barred or limited by the doctrines of spoilation of evidence. 66. Plaintiffs' damages, if any, are caused by their failure to maintain their property in a safe and proper manner. 67. Defendants assert all defenses, limitations, rights and/or remedies set forth in any agreement entered between the parties and/or their predecessors-in-interest. WHEREFORE, Defendant, Boyd E. Diller, Inc., respectfully request judgment in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. CROSS-CLAIM PURSUANT TO PA. R.C.P NO. 2252(d) BOYD E. DILLER, INC. V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS. WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS T/DB/A REGENCY HOMES, AND FOLLMER EXCAVATING, INC. 68. The answers contained in Paragraphs 1 through 67 inclusive hereof, are incorporated by reference herein as if set forth in their entirety. Further, the allegations set forth against Defendants, William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas t/d/b/a Regency Homes, and Follmer Excavating, Inc. ("collectively referred to as "Defendants"), in Plaintiff's Complaint are incorporated by reference herein, without admission or adoption, as if set forth in their entirety. 69. The negligence, recklessness, and/or carelessness of Defendants exceeds any negligence on the part of Diller, with the existence of any negligence on the part of Diller, being expressly denied. 70. Diller avers that Defendants are solely liable to Plaintiffs on their cause of action. 71. Alternatively, if it is determined that Diller, is liable to Plaintiffs, with said liability being specifically denied, then Defendants are jointly and severally liable with Diller, on Plaintiffs' cause of action and/or Defendants are liable over to Diller, by way of contribution. WHEREFORE, to the extent that Plaintiffs, Richard E. Milligan and Kay D. Milligan, are entitled to recover on their Complaint, Defendant, Boyd E. Diller, Inc., demands judgment against Defendants, William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas t/d/b/a Regency Homes, and Follmer Excavating, Inc., on the basis that they are solely liable to Plaintiffs on Plaintiffs' cause of action, liable over to Boyd E. Diller, Inc., by way of contribution and/or indemnification and/or jointly and severally liable with Boyd E. Diller, hic., on Plaintiffs' cause of action, with any liability on the part of Boyd E. Diller, Inc., being expressly denied. Date: t,I/F/ou Camp Hill, PA 17011 (717) 975-8114 VERIFICATION I, Walter I. Diller, state that I have read the foregoing Answer with New Matter, and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S.A. § 4904, relating to unworn falsification to authorities. Date: " /0 - O SY Milligan v. Costopoulos CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the IIn. States Wail at Camp Hill, Pennsylvania, first-class postage prepaid, on the 0 da of f (i{J r 2004, and addressed as follows: Jesse Raymond Ruhl, Esquire 350 W. Market Street York, PA 17401 Paul W. Grego, Esquire 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605 W. Darren Powell, Esquire C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 MARGOLIS EDELSTEIN By: Ojz__? ? Carol Moose MdmdirV Zuich\25250.4-0003Tleads\Amwer with New MaMr.5-27-04.wpd ,. ? A'£9hSCt+? use,..:..:. ?. `? ? ??? ??)f --?1 7 ?? ?? N ? i tT i 7 ("l r_?i :? r:?;S ;Jnt z..a =' c? _ ? G. ?: POST & SCHELL, P.C. BY: PAUL W. GREGO I.D. #:39701 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO: 013 823 v. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. JURY TRIAL DEMANDED Defendants. CROSS-CLAIM OF BOYD E. DILLER INC. Defendants, William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes hereby file the instant Response to Cross-claim Boyd E. Diller, Inc. 68. This paragraph contains statements for which a response is not required. 69. Denied. The averments of this paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments this paragraph are generally denied pursuant to Pa.R.C.P. 1029. 70. Denied. The averments of this paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa.R.C.P. 1029. 71. Denied. The averments of this paragraph state a conclusion of law to which no response is required and they are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa.R.C.P. 1029. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment in their favor and against Boyd E. Diller, Inc. and Follmer Excavating, Inc. Respectfully submitted, DATE:I 11 22 0q POST & SCHELL, P.C., By: l' & C L<---:' ,b",- PAUL W. GREGO, ESQ. Attorney for Defendants William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes -2- CERTIFICATE OF SERVICE I, Dana C. Panagopoulos, Esquire do hereby certify that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the date set forth below. Jesse Raymond Ruhl, Esquire 350 W. Market Street York, PA 17401 Barry A. Kronthal, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 (Attorney for Boyd E. Diller, Inc.) C. Kent Price, Esquire W. Darren Powell, Esquire THOMAS, THOMAS & HAFER 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (Attorney for Follmer Excavating, Inc.) POST & SCHELL, P.C., BY:) DATE: 014 ANA C. PANAGOPOULOS, ESQ. C'vl c> C-il N) k.D n 4 ?. PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) RICHARD E. MILLIGAN, and 9 Civil Action - Law KAY D. MILLIGAN, ? Appeal from arbitration (other) (Plaintiff) VS. The trial list will be called on June 21, 2005 and WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, and Trials commence on July 18, 2005 (See Attached For Remaining Defendants) (Defendant) Pretrials will be held on June 29, 2005 VS. (Briefs are due S days before pretrials No. 01-3823 , Term Indicate the attorney who will try case for the party who files this praecipe: Jesse R. Ruhl, Esq. Indicate trial counsel for other parties if known: This case is ready for trial. Print Date: May 27, 2005 Signed: Attorney for: Plaintiffs LIST OF DEFENDANTS WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. COUNSEL OF RECORD Jesse Raymond Ruhl, Esq. PO Box 22647 Philadelphia, PA 19110-2647 (215) 670-2449 (215) 670-2148 (fax) C. Kent Price, Esq. Thomas Thomas & Hafer 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 (717) 237-7105 (fax) John R. Canavan, Esq. Post & Schell 240 Grandview Avenue Camp Hill, PA 17011 (717) 731-1970 (717) 731-1985 (fax) Barry A. Kronthal, Esq. Margolis Edelstein PO Box 932 Harrisburg, PA 17108 (717) 975-8114 (717) 975-8124 (fax) Attorney For Plaintiffs Attorney for Defendant Follmer Excavating, Inc. Attorney for Defendants Costopoulos, Kollas and Regency Homes Attorney for Defendant Boyd E. Diller, Inc. A CERTIFICATE OF SERVICE I hereby certify that on May 28, 2005, a true and correct copy of the foregoing Praecipe was served by first class mail, postage prepaid, upon the following: John R. Canavan, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 C. Kent Price, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 a c? r ? ,?a ?; _ ?, ?„ -?, .-„ t .?, ?, . _ T '*' - w rn rid i.i iCJ = y _. ?, ?? __ .J ?' , --C 16 Richard E. Milligan and Kay D. Milligan IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas t/d/b/a Regency Homes, Boyd E. Diller, Inc., and Follmer Excavating, Inc. NO. 01-3823 CIVIL TERM ORDER OF COURT AND NOW, June 22, 2005, counsel having failed to call the above case for trial, the case is stricken from the July 18, 2005 trial term. Counsel is directed to relist the case when ready oesse R. Ruhl, Esquire 4 For the Plaintiff / Kent Price, Esquire For Follmer Excavating li6hn R. Canavan, Esquire For Costopoulos, Kollas and Regency Homes L,B1rry A. Kronthal, Esquire For Boyd E. Diller, Inc. Court Administrator By the Court, //*-0%1 o(korilf. o er, P.J. 7 jhk RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3823 JURY TRIAL DEMANDED PRAECIPE TO REMOVE CASE FROM TRIAL LIST TO THE PROTHONOTARY: Kindly remove this case from the civil trial list for the week of July 18, 2005. LAW Dated: June 20, 2005 By: YMOND 55 Jro:x ond . Ruhl PD. Noo. 55798 P 47 Philadelphia, PA 19110-2647 (215) 670-2449 (215) 670-2148 (fax) (D Mal cn 2--. ca tV V%, M LAW OFFICES OF RALPH F. TOUCH Jeffrey S. Lee, Esquire Atty. I.D. No. 69952 401 Penn Street, Suite 100 Reading, PA 19601 (610) 320-4780 Fax (610) 320-4787 Attorney for Defendant, Boyd E. Diller, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Richard E. Milligan and Kay D. Milligan his wife, Plaintiffs CIVIL DIVISION NO. 01-3823 V, William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes, Boyd E. Diller, Inc., and Folhner Ecauating, Inc. Defendants PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Edward J. Cermanski Esquire, as counsel of record for Defendant, Boyd E. Diller, Inc., and enter in his place Jeffrey S. Lee, Esquire, as counsel for Defendant, Boyd E. Diller, Inc. Edwar . Ce anski, Esquire Atty. I.D. #5 78 401 Penn Street, Suite 100 Reading, PA 19601 J fre S. Lee, Esquire .D. # 69952 401 Penn Street, Suite 100 Reading, PA 19601 Dated: Wednesday, October 05, 2005 CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the foregoing document(s) upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: Jesse R. Ruhl, Esquire The Law Offices of Jesse Raymond Ruhl 36 South Hanover Street, Suite 302 Carlisle, PA 17013 William C. Costopoulos and William C. Kollas d/b/a Regency Homes, Inc. 7099 Carlisle Pike Carlisle, PA 17013 Folhner Excavating, Inc. 238 Locust Point Road Mechanicsburg, PA 17055 Dated: October 5, 2005 Lee, Esquire for Defendant, Boyd E. Diller, Inc. 101300046/ Lee tl M1 y? _?11 r _ F , G. t?7 o 2 c POST & SCHELL, P.C. BY: PAUL W.GREGO I.D. #:39701 BY: DANA C. PANAGOPOULOS I.D.#:89491 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO: 01 3823 V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. JURY TRIAL DEMANDED Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendants William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Rengency Homes, and on whose behalf a jury trial is hereby demanded in the above-captioned matter. POST & SCHELL, P.C. BY: /) 6, DATE: I I L)`J DANA C. PANAGOPOULOS Attorney I.D. No. 89491 f POST & SCHELL, P.C. BY: PAUL W.GREGO I.D. #:39701 BY: DANA C. PANAGOPOULOS I.D. #: 89491 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO: 01 3823 JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of Defendants William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Rengency Homes, and on whose behalf a jury trial is hereby demanded in the above-captioned matter. POST & SCHELL, P.C. _ BY:? DATE: ci JOHN W. DO E ER Attorney I.D. No. 84 28 R CERTIFICATE OF SERVICE I, Dana C. Panagopoulos, Esquire do hereby certify that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the date set forth below. Jesse Raymond Ruhl, Esquire 350 W. Market Street York, PA 17401 Barry A. Kronthal, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 (Attorney for Boyd E. Diller, Inc.) C. Kent Price, Esquire W. Darren Powell, Esquire THOMAS, THOMAS & HAFER 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (Attorney for Follmer Excavating, Inc.) DATE: POST & SCHELL, P.C., B . tom} DANA C. P. NAGOPOULOS, ESQ. r ,CO c -n c„ o ? ? -o M _ .fin; LAW OFFICES OF RALPH F. TOUCH Jeffrey S. Lee, Esquire Atty. I.D. No. 69952 401 Penn Street, Suite 100 Reading, PA 19601 (610) 320-4780 Fax (610) 320-4787 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Richard E. Milligan and Kay D. Milligan his wife, Plaintiffs CIVIL DIVISION NO. 01-3823 V. William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes, Boyd E. Diller, Inc., and Follmer Ecavating, Inc. Defendants PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Edward Cermanski, Esquire, as counsel of record for Defendant, Boyd E. Diller, Inc., and enter in his place Jeffrey S. Lee, Esquire, as counsel for Defendant, Boyd E. Diller, Inc. ?--? Edwarfl eerm?? ski, Esquire Atty. I.D. #5K692 401 Penn Street, Suite 100 Reading, PA 19601 y e, Esquire I.D. 69952 'e Street, Suite 100 mg, PA 19601 Dated: Wednesday, November 02, 2005 CERTIFICATION OF SERVICE I hereby certify that I have served a copy of the foregoing document(s) upon all parties, their attorneys or representatives, and all other relevant organizations, in the manner(s) set forth below: By first-class mail, postage prepaid: Jesse R. Ruhl, Esquire The Law Offices of Jesse Raymond Ruhl 36 South Hanover Street, Suite 302 Carlisle, PA 17013 William C. Costopoulos and William C. Kollas d/b/a Regency Homes, Inc. 7099 Carlisle Pike Carlisle, PA 17013 Follmer Excavating, Inc. 238 Locust Point Road Mechanicsburg, PA 17055 Dated: Wednesday, November 02, 2005 Lee, Esquire for Defendant Diller, Inc. 101300046 /31/20106 1'_+:27 7172911609 POST S& SCHELL F'.,,. F`:;iaL. %1./%2 {i It P SCHELLPr gTTQn Nx I Are adw This telecopied material and the Information contained In it is Intended only for the use of the Individual or entity to Which it is addressed and may contain information that Is privileged, confidential and exempt from disclosure. If the reader of thie message is not the intended recipient or an employee or agent responsible for delivering the message to the intended reciplent, you are hereby notified that any dissemination, distribution or copying of this communication Is strictly prohibited. If you have received this communication In error, please notify us Immediately by telephone and return the original message to us by mail. 1-hank you. FILE NANIE: CLIENT NO: BILE No.. MMLIGAN 769 110465 FAX COYER SHEET NANtz Beth ,Jesse Raymond. Ruhl, Esq. W. Darren Powell, Esq. Barry Kronthal, Esq. COMPANY Chambers of Judge M.L, Ebert, Jr. FROM: Dana C. Panagopoulos 717-391-1167 TOTAL PAGES (INCLUTDMC CD'VPR. SHEET); D.aTE: MARCH 31, 2006 Rapt NOi PHONE No. 717-240-6460 215-670-2,2,48 7I7`-23'X=74.05 717= 915-8124 DESCRIPTION: Letter dated. March 31, 2006 from, Plaintiff Counsel COMMENTS: Beth- Per the attached letter, please be advised that the .Defendants' Joint Motion is not opposed. Accordingly, per Judge Ebert's March 10, 2006 Order, counsel will not be appearing for the bearing on Monday. Thank yowl, Dans Panagopoulos In the event of any problems in recelving this transmission, please call our office at 717.2911672. 1857 WILLIAM PRNN WAY PC ROU tey44 1.111A5TEP, PA T76VS-0248 717.241,4532 wwW..rOSrSCNeLL.GOM A PENNSYLVANU RP0PES6i0NAL COMPOMAriON 03/31/2006 15:27 7172911609 POST & SCHELL P.C. JESSE RAYMOND RUHL ATTORNEY AT LAW P.O. Box 22647 Philadelphia, PA 19110.2647 (215) 6702449 (215) 670-2148 (far) March 31, 2006 PAGE ?02/K2 Dana C. Panagopoulos, Esq. POST & SCHELL 1857 William Penn Way PO Box 10248 Lancaster, PA 17605-0248 RE: Milligan v. Costopoulos, et al. Dear Dana: I have no objection to the relief you have requested in your motion to compel a site inspection of my clients' property. I have the following dates available in April to conduct the inspection: Wednesday, April 5 Thursday, April 6 Tuesday, April l 1 (morning only) Wednesday, April 12 Thursday, April 13 Tuesday, April 18 Wednesday, April 19 Thursday, April 20 Please advise which, if any of these dates arc acceptable to you and advise me of the time which you would like to begin the inspection. If there is anything additional you require from me, please advise. Very truly yours, ls/ Jesse Raymond Buhl Jesse Raymond Ruhl JRR/tbm cc: Barry A. Kronthal, Esq. C. Kent Price, Esq. POST & SCHELL, P.C. BY: PAUL W.GREGO I.D. #:39701 BY: DANA C. PANAGOPOULOS I.D.#: 89491 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. RECEIVED FEB 2 B Goo ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO: 01 3823 ORDER AND NOW, this day of 2006, upon consideration of Defendant's Motion to Compel, it is hereby ORDERED and DECREED that said Motion is GRANTED. It is hereby ORDERED that a site inspection be conducted at Plaintiff's property, with Plaintiffs and their counsel present, within thirty (30) days of the entry of this Order. 11? J. 0 0117 2990" AP 9: 45 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs V. WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 01-3823 CIVIL IN RE: DEFENDANTS' JOINT MOTION TO COMPEL ORDER OF COURT AND NOW, this 10th day of March, 2006, upon consideration of the foregoing petition, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the plaintiffs to show cause why the defendants are not entitled to the relief requested; 2. The plaintiffs will file an answer to this petition on or before March 31, 2006; 3. The petition shall be decided under Pa.R.C.P. No. 206.7; 4. If the Plaintiffs file an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing shall be held on the 3`' day of April, 2006, at 10:30 a.m. in Courtroom No. 5 of the Cumberland County Courthouse. If no answer to the Rule to Show cause is filed by the required date, the relief request by the Defendants shall be granted. By the Court, "'\ M. L. Ebert, Jr., -f r 1+{ t1 ^ir -, I Jesse Raymond Ruhl, Esquire Attorney for Plaintiffs Dana C. Panagopoulos, Esquire Attorney for Defendants William Costopoulos, William Kollas, William Costopoulos, William Kollas, t/d/b/a Regency Homes Barry A. Kronthal, Esquire Attorney for Defendant Boyd E. Diller, Inc. C. Kent Price, Esquire W. Darren Powell, Esquire Attorneys for Defendant Follmer Excavating, Inc. bas a a 'z RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants CIVIL ACTION - LAW 01-3823 CIVIL IN RE: DEFENDANTS' JOINT MOTION TO COMPEL ORDER OF COURT AND NOW, this 10th day of March, 2006, upon consideration of the foregoing petition, IT IS HEREBY ORDERED AND DIRECTED that: 1. A rule is issued upon the plaintiffs to show cause why the defendants are not entitled to the relief requested; 2. The plaintiffs will file an answer to this petition on or before March 31, 2006; 3. The petition shall be decided under Pa.R.C.P. No. 206.7; 4. If the Plaintiffs file an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing shall be held on the 3`d day of April, 2006, at 10:30 a.m. in Courtroom No. 5 of the Cumberland County Courthouse. If no answer to the Rule to Show cause is filed by the required date, the relief request by the Defendants shall be granted. By the Court, M. L. Ebert, Jr., A . Jesse Raymond Ruhl, Esquire Attorney for Plaintiffs Dana C. Panagopoulos, Esquire Attorney for Defendants William Costopoulos, William Kollas, William Costopoulos, William Kollas, t/d/b/a Regency Homes Barry A. Kronthal, Esquire Attorney for Defendant Boyd E. Diller, Inc. C. Kent Price, Esquire W. Darren Powell, Esquire Attorneys for Defendant Follmer Excavating, Inc. bas POST & SCHELL, P.C. BY: PAUL W. GREGO I.D. #:39701 I3Y: DANA C. PANAGOPOULOS 1,D.#: 89491 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife PlaintiAs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO: 01 3823 Defendants, by and through their attorneys, hereby file the following Motion to Compel, and in support thereof, aver as follows: Plaintiffs initiated the instant action for property damage, loss of trees, which they allegedly suffered when Defendants entered onto their property and destroyed some trees, which developing land abutting Plaintiff's property. A copy of Plaintiff's Complaint is attached hereto as Exhibit "A." e 2. In an effort to discern the location of the alleged trees, the types of trees, the topography of the area and other information, the parties scheduled an inspection of Plaintiffs property, which was to occur on September 29, 2005. 3. By letter dated August 15, 2005, counsel for Follmer Excavating, Inc. informed Plaintiffs counsel that he would like to schedule a site inspection and indicated that he would like Plaintiffs and their counsel to be present at the inspection. A copy of the August 15, 2005 letter is attached hereto as Exhibit "B." 4. As noted above, the inspection was scheduled for September 29, 2005. A copy the August 24, 2005 letter confirming the inspection for September 29, 2005 is attached hereto as Exhibit "C." 5. Counsel for all Defendants, as well as some of their respective experts, were present at the inspection, however both Plaintiffs and their counsel failed to appear at the inspection. Additionally, Plaintiffs' failed to inform Defendants that neither he nor his clients intended to appear at the inspection. A copy of the undersigned's September 29, 2005 letter regarding the site inspection is attached hereto as Exhibit "D." 6. Since that date, Defendants have attempt to schedule a second inspection Plaintiffs property, however, Plaintiffs counsel has failed to respond to requests. Attached are copies of counsels' October 10, 2005 and December 27, 2005 requesting a second site inspection as Exhibit "E." See also Exhibit D. 7. This discovery is essential to Defendants' preparation of their defense. 8. Plaintiffs' failure to respond is unreasonable, dilatory and prejudicial. 9. All Defendants join in the filing of the instant Motion. -2- t WHEREFORE, Defendants William C. Costopoulos, William C. Kollas, and William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes, hereby request that this Honorable Court enter an order requiring that a site inspection be conducted at Plaintiff's property, with Plaintiffs and their counsel present, within thirty (30) days. Respectfully Submitted, Post & Schell, P.C. By: Pw----- Dana . Panagopoulos, Esquire Attorney for Defendants William C. Costopoulos, William C. Kollas, and William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes Date: 2117 D tp -3- CERTIFICATE OF SERVICE I, Dana C. Panagopoulos, Esquire do hereby certify that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in theI United States Mail, First Class Delivery, on the date set forth below. Jesse Raymond Ruhl, Esquire 350 W. Market Street York, PA 17401 Barry A. Kronthal, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 (Attorney for Boyd E. Diller, Inc.) C. Kent Price, Esquire W. Darren Powell, Esquire THOMAS, THOMAS & HAFER 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 (Attorney for Follmer Excavating, Inc.) DATE: POST & SCHEPLL, P.C., 1 BY: 61 ANA C. PANAGOPOULOS, ESQ. Nt •K.Y;MC IMUKA L WJ. 0-26- 1 1V 11 : 441-01 ' 04:30Pq FROd!-1Ayetc-@rnnar V'ALtl YVKUC tSK- 117 201 1buo;t 4 66lRe/Di 16:91 EAI 610-770-Y116 T-377 P.003/011 F-758. law FA"ro dtkt Ary /AAq,XG., 5`+N6 16i.1kn orua r.A.7... PN C." VA 19015 ttlt)rq-+rli ,,, til]y rltd1l?(Qwl RICHA" B. MILUGAN and KAY D. MiLLIGAN, his wife Plaintiffs, Lei THE COURT OF COMMON PLEAS CUMBERLAND COUWY,, PENNSYLVANIA CIVIL ACTION - LAW V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOIJI.OS and V,rMISAM C. KOLLAS, tld/b/a REGENCY AOMHS, 130YD F. DILLER, INC., and FOLLMER.EXCA.VATING, INC, Defendants. NO. ch 8z3 L44i9 -72, 1!'.N• I ,. rll JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE 13EEN SUED IN COURT. If you wish to defead ap.inst the claims sct forth in the fallowing pagna, }you must fake acticn within twenty (20) days after thin Complaint and Notice are served; by entering it written appearance personally or byattorney and filing in writing with the Court your defenses or objections to tale claims set forth against you. You are warned that if you fail to do so tha case may proceed without you and a judgment may be catered against you by the Court without further notice for any many claimed in the Complaint or for any other alaim or tchcf requested by the Plaintiff. You may lose money or property or other rights important to },ou. YOU SHOUID TAKE TMS PAPER. TO YOUR LAWYER AT ONCR IF YOU DO NOT HAVE A I..AWYER OR CANNOT AFFORD ONE GO TO OR TELEPTIONE THE OFFICE SET FQF:fH BELOW TO FIND OUT)&WERE YOU CARL GET I EGAL HELP. Court Adminiatrator Cumberland County Courthouse Fourth Floor C`arlirle, PA 17013 (717) 240-6ZOO FRUE Copy 11 7otOtxrywlet0, ROMRECQRU I' here U;brf w my han6 mid the seal of a+ild a{ Pa. r httTLli011p? JUN 26 'Ei1. 11:1.6 67 03;?76AS? PF'1GF id 4N 't1Y=tArIC MSUKAN(.L COS. ; 6-1b- 1 PM-16791 ' 04:91 PM FROM-t(Y9 r"ann r 10:14 VAI.LtY YVi{(it 13K.# 910-770-9126 t ` A_.KL5-Q e11 1J1 16()8;# b 7-321 P.004/O10 F7769 USTEP HA SIDE DEMANDADO/A EN CORTE. Si usted desea dcfenderso do tae "deakaudas que se p==tan mas adoteme en [as siguicutes pajinas, debe tamer accion dentro do 1o3 psoxirme veiato (20) dies dcspucs de la notificacion do ests. Dema uU y Avian radieaado peamnalmentc a por media de un abagado uns comparo=cia esedta y radicarWo en la Coto par esedto sus defenses do, y objcceioncs a, las dcmandm prtsewAdst aqui en contra suyz. Sc le Advierto do q}ca si usted fella de tomar action como se describe enteriormeate, of caso puode proceder sin usted y un fallo por realquier soma de dincro =clamada on la deananda o cualquier atm rmismwion a remedio solicitado par el demaudame puedo sordictado en contra soya par la Corte sin mas aviso adicioml. Usted puode perder ditrero o propicdad u otme deteahos iretportautes Para ustcd. LISTED DBBE LUVAR ESTB D0CU PNTO A SU ABOGADO INMEDIATAMEi TF- SI USTED NO TIBNF- UN ABOGADO ONO POP-DE PAGAR LB A UNO, IX AME O VAYA A LA STC3UtF2d M OFICIN"A PARA AVFRIGUAR DONDE PITEDE ENCONER AR ASIS=CL4 LEGAL, Court Administrator Cumberland County Courthouse Fourth Floor Carlfale, PA 17013 (717) 240-6200 .T?Ihf c?L'- '13( If .. tf. 6!032x?,,,! PPF,i a, SENT BY: EMC INSUKANCI GUS. : ti-16- 1 : 1U-.14 VALLt7 t'UKCfL tSK- /1/ Z01 i(Mv; 6 1OR-25-01 ' 04:31PM FROMiDyers-8eneer 810-770-8720 7-327 P.005/018 f-768 06/25/01 15:02 FAX 1ciaY Raymond RAI 'Muxuy Lo. Nu. 64798 36s. Hwwwesml yS).8m1 t314 (b,q'wis.PA 17013 (7nJ?AIi813 'FtICHAJRD E. MIL A13AN and KAY D. MILLIGAN, "s wife Plainrifls, V. WII,y(UW C ?C?//O5TO?POULOS, WnJ1AM C. AOLI?t1S, WILLIAM C COSTOPOULOS and WII.LLAM C. KOLLAS, Vd/Vd, REGENCY HOW% 130YD E. DILLER, INC., and FOLLMBR EXCAVATING, INC. Defendants. COVRT COUNTY, PL CUmBj3N..AND P vA"'A CIVIL ACTION - LAW No_ 01- 3 f2,3 I x'I ?a JURY TRIAL. DEMANDED COMPLAINT i NOW COME PlaiutiM Richard E. Milligan and XSYD- Milligan, by and ffi rough their attomey, 7aaae Raymond Auld, and file the within ComPlaint as follows: 1. Plaintiffs Richard E. Milligan and Kay D. Milligan are husband and wife with a Preeetst addreas located at 55 Ridge Avenue, Carlisle, PA 17013. 2. Defcndant William C- Costopaulos is an adult individual with an address located at 831 i',t?l? O.,P Market Sheet, Lemoyne, PA 17043_ JUN 26 '01 11:17 6103276857 PRGF pr r StAr t3Y:tXG ? NSUKANCt Mi. ; b-Yb- 1 10:14 VAL.LU IMit 15K- 117 201 1bUy;u 710i?27-Ot 04:71PM FROIhi an-Benner 610-T70-sT2A T-327 P.006/011 F-700 04/25/01 15:OE FA= 3. Defendant Williatn C. Kollas is an adult individual with an address located at 1104 Fernwood Avenueti Camp 11111, PA 17011. 4. Upon in and baliet Defendants Costopoulos and Kollas are parhters, ttading and doing business as Regency Homes. 5. Rogmcy Houses i0 a developer of a tract of land gibwted adjacent to the propc4 owned by Plaintiffs. 6. Regency-Homes bas an address located at 7099 Carlisle Pike, Carlisle, PA 17013. address of 6820 Wentzville Rand 7. Defendant Boyd B. Diller, Inc. is a corporation with an Enola, PA 17025. 8. Defendant Diller is in the earth moving and excavation business and a1 all times, pertinemt hereto .vas acting as the agent, servant and/or employee of Defendants Costopoulos, Kollas and/or Regency Homes.. 9. Defendant Follmer Excavating, IM is a corporation with an address locatod at 238 Locust Point Road, Machanicgburg, PA 17055. 2 JUN 26 •01 11:17 6103276857 PAGE-07 JC.NI V:tNu IN3MAIK.G LVJ. 1V•14 ; VALLCI CVRUC DIC- LU1 !0U5.µ O JEW-26-01 ' 04IIIPM FmMVars-Bonner 610-770-BT26 T-927 P-00TAIS F-761 06/76/01 L5.21 FAX - - - - -. r 10. Defendant Folimer is in the earth MO"MC and excavatiOn business and at all times, pertinent hereto was act. wg as the agent, servant andfor omployee of Defendants Costopoulos, Kollas and/orRcgencyHomcs. FACTUAL BACKGROM 11. Defendants Costopoulos. Kollas and Resmq Homes arc developers of a tract of land knowa as Kingsbrook Development. IT The Kingsbrook Development property and the PlaintiffB share a common property line, and the Kiagsbrook Development property abuts Plaintiffs' property to the oast of Plaintiffs' property. 13_ In the course of developing their property known no Krngsbrook DtvelopaterA. Defendants Costopoulos, Kollas and Xcgency Homes, through the acts and conduct of their employees, servants, agcots, workersp independent contractors and/or others aodnz oa their bcWZ made repeatod anal unlawful irespassm onto the property owned by Plaintiffs. 3 JUN 26 '01 11=17 6103276857 PAGE.oe ZUNI' tsr:rita, -IIVJUrMNLr- h,VJ- , U-Lo- 1 . lU-1J AN=25-01• 04:32PM FRO-Wers-Benner ,06y2s/ol 13:02 FAX 4 val I r I rMuc M- 610-T10-AT26 i-32T /1! L41 IUUA,N J P.006/018 F-788 la. These trespasses' we" trade through the intentional acts of all Detl ttdants hereto for the purpose of increasing the value ofRingsbrock Development while diminishing the value of Plaintiffs' property. 15. These repeated trespasses oeautred betwcan the time of Mamb. 2oW and continued through the fall of 2000- 16- The repeated and unlawful trespasses were made without any claim of right thereto and were made in complete disregard for the rights ofPlaintif£s- 17, Moreover, the trespasses continued even after advised by Plaintiffs that the Defendants were trespassing and that the trespasses must cease, 18. Nevertheless, Defmdaute rduscd to abide by rite PlakfiNe demand that the trespasses cease, and Defendants coutinuad With their wanton, w10d, reckless eodfor negligent trespass upon the Plaintiffs' Property- 19. These trespassee oontinuod despite the fact that Defendants' admitted. their trespasses and offered to pay for some of the dnmaga caused to Plaintiffs' property- So Defendant Follmces obeck No. 1086 in the amount of $400.00, a copy ofwhich is attached hereto as Exb1bit "A" and incorporated herein by reference- 4 JUN 26 '01 11=17 6103276857 PRGE.09 JCIAI nl;rAL Iil3u WILL uvo_ V-LV- 1 aV•aJ YA LVlxu. u4• ul cue aVVU••rav iWt-36-01 641:32PN FROM-Mrorc-haper 810-T70-9721 T-327 P.009/018 f-788 06/38/01 15:02'FAX 20. This admission and aanowledgmeRt. Of the trespass by their agent is binding upon Defendants Costopoulos, Kollas and Regency Homes. 21. The sum of $40o.00 offered by Defendant Follmor is totally itladequatz to compensate plaintiffs for the damages suffered. 22. As a result of the trespass, Plaintiffs suntred damage to their property in the following manner a. Plaintiffs' mail box was damaged; b.l Defendants removed the top soil from Plaintiffs' property; C. Def e-nndantc removed mulch fiom Plaintiffs' property; & Defendants removed andlor destroyed ahrobbery on Plaintiffs' property; e. Defeldants to WVOd and/or de°t`OYOd-approximately 29 deciduous trees of approximately 4%' - 5" caliper, Plus other trees of smaller caliper. L Defendants' destroyed the balance of natural beauty and cultivatcd landscaping that Plaintiffs were fosteeing;, and g. DeAndants interfered with PlaiuAfjs' right to be fzee lroln invasion. 23. In addition, Plaintifft were damaged in that the trespass will requiro theta to re-landscape the areas which we= the subject of the trespass- 5 JUN 26 101 11=18 6103276857 PAGE.10 SLNI B•r•r16C I,NJUKAJNLt LVJ. . b-ZD- 1 lU•lA • ' JlN-tS-Ot .04:32PY FROM-Myers-Bmnrr 00/25/01 10:a2 FAI VALLr.t rVKUE DK" !1/ Lj1 1DU.7.a11 618-770-8726 T-327 P.010/018 F-708 24. As a result of the trespasses, Plaintiffs have been dama$ad in as amount to cxccss of $94,650.00 as set forth on the Did Proposal dated Febraary 2. 2001. a copy of which is attacbed hecato at p,, ft'bit'B" and incorporated herein by reference. CoUNTI -TRESPASS (plaintiffs v. All Dcfeadento) 23. The foregoing averments 80 incorporated herein by mferenca. 26. Defendants, tbrou& their agents, servants and/or employees Imowingly, recklessly and/or negligently trespassed upon the Plaintiffs' ProPerty 27. The aforesaid actions ofDefendants. their agcnra, a,,,ants and/or employees da»ged and w -On> lly interred with Plaintiffs' propeYtY, and Plaintift r1ghts as Property owners as sat forth above. 28. The acts of Defendants were outrageous, reckless, callous, performed with reckless indifference, end were performed to in=wo the value of Defendants' development wb e diminishing the value of Plahrri W ptnpet'ty 29. As a result, the Conduct of I3efead'ants entitles PlaintiPFa to an award of punitive damages- 6 JUN 26 '01 11:18 6103276857 PAGc.11 SENT'UY:EMC )MUKANCt COS. b-26- 1 : 10:10 ' '.JUNa28-Ol ' Oda2PM FROM-Ny6rs-Benner 06/25/01 -15:03 FAY VAL.LU 1'OK(it tSK- 111 231 16Oy:812 410-770-8728 F-82t Pm1/018 .f-T88 WHWFORE PlaintiM Richard &. Milligan and Kay D. Wlligan demand judgment in their favot and against Dafgndartts in an amount in excess of $94,650.00, plus punltlvo damages, attamey's fees, interest and costs of suit. COUNT 11- STRICT LIABUXI Y (plaintin v. All Defendawts) 30. The foregoing averments are incorporated herein by reference. 31. An individual trespasaung and responsible for the destruction of propwv is strictly liable for any and all haul caused without regard for negllgeaea. 32. Moreover, the operW,011 of heavy oonstrtrction equipment is an abnormally dangerous and ultcabayardous activity. 33. Defendants were at all times pertinent hereto engaged in an abnormally dangerous and ulraahaaardoU3 activity. 34_ Plaintiffs suffeued damage to their pzope'tY in the following manner as a result of the invasion. a. Plaintiffs' mail box was damaged: b. Defendants removed the toP soil from Plaintiffs' property', 7 JUN 26 '01 11:10 6103276857 PAGE.12 3UNI [5,j:[Mc 103UIMILt m,UJ. . O-LO- 1 1U-10 YALLLI rVICUr- DA- 111 L51 IQUJ.MIJ JUR°28-01 44:32PM FR"yers-Benner 610-7T0-0T26 T-32T P.012/019 F-T68 oa/25/0 1 16:03 PAX C. Defendants removed mulch from Plaintiffs' Property; d. Defendants removed and/or destroyed shrubbery on Plaintiffs' Prop e. Defendants removed and/or destroyed 2.ppro7im11eiy 29 deciduous trees of approximately 41/2t- 5" caliper. plus other trees of smaller caliper. f, Defendants' destroyed the batanco of natural beautyand eultivaved landscaping that Ptaintim were fostering, and g. TAefbndants interfered with Plaintiffs' right to be free from invasion. 35. M aTesuU, Defendants arc strictly liable for the damages suffered by Plaintiffs. WHEREFORE Plaintiffs Richard E. Milligan and Tray b. Milligan demand judgmont in their favor and against Defendants in all amount in excess of $94,650-00, plus pmutive damages, attorney's fees, interest and costs of suit. COUNT III - NEGLIGENCE (Plalatlffs v. AD Defendants) 36_ The foregoing averments are utcarPorated herein by referenda. 37. PlaintifA suffered damages to their property as a result of tho negligence of the Defendants; their agents, servants and/or elnptoyeea 8rting within the course and/or reoope of their employment- JUN 26 '01 11:18 6103276857 PAGE. 13 SENT BY=.FMC #INSURANCE COS. (i-16- 1 10:1b ; JUN'26-01" 04:33P1! FRO* @fv-Benner 06125/01 15:03 FAX. VALLEY t'OKGL tiK- 610-TTO-0726 36. Defendants had a duty to avoid trespassing onto plaintiffs' property. /l( 2W IbUZJ;914 T-927 P.013/418 R-766 39: . ?po{endants breached this duty by carelosaly, reckessly, negligently or wantonly trespassing upon Plaintiffs' pzoperty 40. -Me ne91i9nee, carelessness, recklessness or wantoness of Dckadauts. their agents, servants and/or ompioyees consisted of the following. (a) Failure to establish or identify the exact property lines before proceeding with the operation of heavy machinery: (b) WIllfully aad recklessly destroying shrubbery and trees Wore ascertaining Oro ownership thereof; (c) Callously disregarding Plaintiffs' assertion of the trespass, and continuing trapassing upon the Plaintiffs' proPertY, (d) Failing to properly direct and supervise their employees, agents, contractors, servauto and/or woemmen. 41. The plaintiffs have been damaged by the ntghgence, caral0sness, roaklessr=s or wantoness of the Defendants, and the negligahce, carelessness, recklessness and/or wanton=s of the Defendants was the proximate cause of Pla9nt'M' 14"y. JUN 26 '01 11:19 6103276057 PAGE.14 St1Yl' HYINC 1,NSUKAN(x CUJ. : ()-'Lti- 1 : 10:16: VALLtt rMit nK- /1! Znl Mub:810 Jlar-46-OI ' 64:33PM FR"oro-04nncr 610 T70-0726 T-327 P.OIAIpig F-761 06/25/01 115:03 FAX `HEFy iti Plaintiffs Richard E. Milligan and Kay D. Milligan demand jud&mout in their favor and againstDefendants in an a=unt in excess of $94,650.00. plus punitive damages, attorney's fees, interest and costs of suit. CoUn rv - CONVEMON (pWntat v- AM Defcadant5) 42. The foregoing averments ere inootporated herein by reference. 43. As set forth Marc fully above, Defendants converted the property of Plaintiffs. 44. The Defendants converted PWntiM2 property for their own personal, commercial advantage. to the financial disadvantage of Plaintiffs. I that the 45. The conversion of Plaint" ProPcrty was done intentionally and callously so value of Kingsbrook Development would be augimmtcl 46. Converting Plaintiffs' property for the coM:nereial advantage o i the Defoadants was outrageous cooductwhich araltlos Plaintiffs to an award of ptmitive damages. 10 JUN 26 '01 11:19 6103276857 PAGE.15 St3VI [jY:t11IC I,NSUKAMZ CUJ. : b-10- 1 : 1U:1b •J111-25-0F 04:33PM Fk01Mpvs-Bennor Q6/ iol. ;Qa FAx . VAI1tY tVKUt ISK-+ /1/ 1Zi1 lbUy:Slb 610-7T0-BT26 T-327 P-015/016 F-T65 D. Milligan demand jud iu plaiuriffs Rrcttud p Mi1li aztd KaY e dame8 WI???? p?ieudanlf in e za arlount in ?? of 894,650.00, 41u` Pu"i°e?• their favoc and mey's Foos, interest and oasts of suit I) -MD-. June 21, 2001 r Att?yID140.55795 36 S. gwvor Street p.0_ Box 1319 Carlisle, pA 17013 (717) 241-4833 , { ameyy for hpl?? M orc?w 11 JUN 26 '01 11:19 6103276857 PAGE.16 3LIN1 IST-MC 13PI3UKAIVCt CVJ. : b-ZU- 1 ; 1U?1 JI""]. 04:33PM FROM-Uyar%-Banner oa/a is of te:oa PAI i VALLJ-T rVKUt OKI tli Zyl 1UU.z);iFll C10 I70-3726 T-92t P.018/011 F-768 ?gIFICA"fIC? ?eyevatfics of 41 paC•5-p!- Sec. 4101, Ray p, NfilliB depoua and s`y$' ?j 1 S eet fo?t]'til foregoing CO?p t om faisi{leatiott to autt tion .abelid telatiaY to answ - to thebest ofber correct kTloale' 1? are to Ye b islh{I? S JUN 26 '01 11=19 - 6103276857 PRGE.17 m.av'Nmwv+s¢Ln )"Nl [Sx:tmc MUKANLt Cos. ; O-Lb- 1 lU•11 VALLt7 [VKUG DK-" !lI LJl 100.7;&!b "1tAl-E3-91 94:33PM FRW4Ibars Benner 610-779-9728 T-32T P.91T/019 F-760 16:03 Fa poLtWt 9 XCAV.A r#gk MC 7p? in vo+s e?xC Y% ioae. JUN 26 '01 11:19 6103276057 PAGE.18 &M KY:t7NC INSUKANCt COS. (3-zb- 1 0:11 : VAI I tY t'OKUt tSK- A W-26-01' 04:23N FROM-Myers-Benner 610-770-OT26 T-927 14:01 FAI ?-?"- ?06/25?Ol t•c DAVIS,LANDSCAPE M ))awls Landscaple Ltd. Bid prOPosai £chru 2.2001 - ce- nett 1? lcay ivri?rt?a?+ Cartisto PA From-'t'erry aoffim% Chief Estimator Dsvrs l andseape Ltd- Fax# 717-543-36b0 Phone it 717-545-4235 /it ZU1 ItIO;glu P.010/018 P-760 Werence Project' Rick and Kay Nblhgan stall 29 Deciduous trees 4 !/L-S., ealipot. Stops of W ork: and tabor to in area to a depth of 1 I.)5nppb' !al egttlPn lastins 2.)WWISUon of aged mulch over Oea5 3.)Fine E sen® gr?adi 093 (h6wrb area. of e?dstirtg held- $94,650.00 .4•)Nydro-see l proposal Price: Ctarificadon. dllg of topsoil is excluded- a fool ftra fmshgr ? . am S amdfor sPM8 onetotttl• 1) upp?y soiS w rt tln 3) DP.rosto co °lo trilm n?iog. blankets sift o• temP- tant material is until inifial COroP160a of our instslietton work ccclttded. 4) MatntcusW"e of this tune is by home owner. and rnaiatenance ??ad areas ed is e%dud- 5) Maa?reoahe 2001 planting ?eason6j Soddtns is excluded. t in the SP"nB 7) prepotal price is based on installation from date of days- g) Warranty of p(al material Is 6-m t onth f frrom accepted within 3 3 0 U 9) proposal may be %4'%bdrawn if tro Wp(bids/t lds pafmiltigaa ? . 1{ernaburq, FA 171'10 • (717) 545 4236 - Fax (717) 646-3660 23 0 t p4xpu (pert)huRrtxi Road.oaa R216911, HC 2760 1- 3919) 862-1009 • Fax (919) 662-3877 JUN 26 '01 11:20 6103276857 PAGE. 19 Y } , THOMAS, THOMAS & HAFER LLP ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 August 15, 2005 VIA FACSIMILE Jesse Raymond Ruhl, Esquire P.O. Box 22647 Philadelphia, PA 19110-2647 Re: Milligan v. Follmer Excavating, Inc., et al. Docket No. 01-3823 Our File No. 347-10989 Dear Jesse: www.tthlawxom W. Darren Powell (717) 237-7154 dpowell@tthlaw.com I would like to inspect your clients property. Given the desire to move this case forward without further delay, I would like to do this sooner rather than later. I believe it would be beneficial to have either yourself or your present to client point out the location of trees at issue. My office will be in contact with you in the near future to obtain mutually convenient dates. Of course, I would like to have the color copies of the photographs prior to the inspection. Thank you for your attention to this matter. W DP/skr :335257v7 cc: Barry A. Kronthal, Esquire Dana C. Panagopoulos, Esquire Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 0 Fax: (412) 697-7407 Very truly yours, r y t 4 i ? THOMAS, THOMAS & HAFER LLP ATTORNEYS AT LAW Mailing Address: P.O. Box 99% Harrisburg, PA 17108 Street Address: 305 North Front Street Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 www.tthlaw.com Kate A. Wilhelm, Paralegal (717) 237-7111 kwithelm@tthtaw.com August 24, 2005 Jesse Raymond Ruhl, Esquire Dana C. Panagopoulos, Esquire P.O. Box 22647 Post & Schell Philadelphia, PA 19110-2647 1857 William PenmWay P.O. Box 10248 Bart' A. Kronthal, Esquire Lancaster, PA 17605-0248 Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Re: Milligan v. Follmer Excavating, Inc., et al. Dear Counsel: This letter will confirm that the site inspection has been scheduled to occur on Thursday, September 29, 2005 at 10:00 a.m. at Plaintiffs property located at 55 Ridge Avenue, Carlisle, PA 17013. Thank you for your cooperation. If you have any questions, please do not hesitate to contact me. Very truly yours, Thomas, ThomasA Hafer, LLP Paralegal KAW/368549.4 Bethlehem Office t 3400 Bath Pike, suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 t Fax: (610) 868-1702 Pittsburgh Office t 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 t Phone: (412) 697-7403 • Fax: (412) 697-7407 * r . 4 ?. oST& pSCHEI.I_, ATTORNEYS AT LAW September 29, 2005 Jesse Raymond Ruhl P.O. Box 22647 Philadelphia, PA 19110-2647 RE: Milligan v. Kollas, et al. Dear Jesse: Very truly yours, Dana C. Panagopoulos DCP:dcp cc: Barry A. Kronthal, Esq. W. Darren Powell, Esq. Dana C. Panagopoulos Direct Dial: 717-391-1167 Fax Number: 717-291-1609 dpanagopoulos@postschell.com File #: 769/110465 1857 WILLIAM PENN WAY P.O. 00X 10248 LANCASTER, PA 17605-0248 717291.4532 WWVd.POSTSCHELL.COM A PENNSYLVANIA PROFESSIONAL CORPORATION i u4 r ?? r THOMAS, THOMAS & HAFER LLP ATTORNEYS AT LAW Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Street Address: 305 North Front Street, Harrisburg, PA 17101 Phone: (717) 237-7100 Fax: (717) 237-7105 October 10, 2005 VIA FACSIMILE Jesse Raymond Ruhl, Esquire P.O. Box 22647 Philadelphia, PA 19110-2647 Re: Milligan v. Follmer Excavating, Inc., et al. Docket No. 01-3823 Our File No. 347-10989 Dear Jesse: www.tthlaw.com W. Darren Powell (717) 237-7154 dpowell@tthlaw.com We coordinated last week's site inspection of your client's property so that both you and your client would be present to point out the damages and the location of the trees that you claim were cut down. Despite this, neither you nor the Milligans appeared for the site inspection, frustrating our ability to evaluate your claimed damages. It is imperative that you and/or your client be present at the site inspection in order to identify the location of the trees at issue and in order to appropriately appraise the property. As such, it will be necessary to reschedule an inspection. My office will be contacting you for convenient dates for you and your client. Very truly yours, Thomas, Thomas & Hafer, LLP W. Darren Powell WDP/gmC:335257.9 cc: Barry A. Kronthal, Esquire (via facsimile) Dana C. Panagopoulos, Esquire (via facsimile) Bethlehem Office • 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 * Fax: (610) 868-1702 Pittsburgh Office • 301 Grant Street, Suite 1150, Pittsburgh, PA 15219 • Phone: (412) 697-7403 • Fax: (412) 697-7407 -go- PoST& SCHEU_J, ATTORNEYS AT LAW December 27, 2005 Jesse Raymond Ruhl P.O. Box 22647 Philadelphia, PA 19110-2647 RE: Milligan v. Kollas, et al. Dana C. Panagopoulos Direct Dial: 717-391-1167 Fax Number. 717-291-1609 dpanagopoulos@postschell.com File M 769/110465 Dear Jesse: PENNSYLVANIA PHIIAOELPHA PITTSBURGH HARRISBURG LANCASTER ALLENTOWN NEW JERSEY PRINCETON As you are aware, all defense counsel was present at your clients' property for the site inspection on September 29th. Despite our previous requests, neither ur were present. In light of this, I belie at another i e pro with r clients present, schedule e. I ask o tact me t next thirty DCP:dcp cc: Barry A. Kronthal, Esq. W. Darren Powell, Esq. 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717291.4532 WWW.POSTSCHELL.COM A PENNSYLVANIA PROFESSIONAL CORPORATION r :s ? .tti + r n ? -p,- t CJ -4 Poo Curtis R. Long Prothonotary office of the Protbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor Date Dec. 3, 2007 TO: Attorney Ruhl, We are returning the enclosed transaction(s) for the following reason(s) : • Incorrect fee received $ should be $ • Need signature • Must provide duplicate copies of the proposed judgment, decree or order and stamped envelopes addressed to the said persons and/or attorneys for notification. Please note: This notification is not a substitute for service of process. Other reasons : I tried to call you. First you're phone was different than that listed on your letterhead and then there was no answer. The enclosed Motion CURTIS R. LONG Prothonotary Cumberland County One Courthouse Square FILED 10, Carlisle, PA 17013 OF THE- F,=- , + ?,r ()T, ? Y 2901 DEC I I A 10: 4 6 1 .. ,,VES F30t o PITNE 3 4?1 02 1A $ 0 0004631598 DEC MAILED FROM ZIP CO Jesse Raymond Ruhl, Esquire PO Box 22647 Philadelphia PA 1q110-2647 193 NEE 1 8061 23 12/0C RETURN TO SENDER RUHL' JESSE BOX CLOSED UNABLE TO FORWARD RETURN TO SENDER W ` off 191 in.* PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ® for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) RICHARD E. MILLIGAN and KAY D. MILLIGAN (check one) ® Civil Action - Law ?? Appeal from arbitration (other) (Plaintiff) VS. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, T/D/B/A REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. The trial list will be called on March 4, 2008 and 'Fiats commence on March 31 .2008 Pretrials will be held on March 12, 2008 (Briefs are due S days before pretrials No. 01-3823 Civil Term Indicate the attorney who will try case for the party who files this praecipe: Indicate trial counsel for other parties if known: Panagopoulos, E quire This case is ready for trim Signed: C. Date: „ Print Name: Attorney for: _ P 1 a i n i- i f f G { STACY B. WOLF, ESQUIRE ATTORNEY ID NO. 88732 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFFS RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife, Plaintiffs V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC., Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW : NO. 01-3823 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Stacy B. Wolf, Esquire, do hereby certify that I have served a true and correct copy of Praecipe for Listing Case for Trial upon the following persons by U. S. Mail, postage prepaid: Dana C. Panagopoulos, Esquire Post & Schell, P.C. 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605-0248 Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 February, 2008 W. Darren Powell, Esquire Thomas, Thomas & Hafer 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 `. R3 t L . I '_ BARRY A. KRONTHAL, ESQUIRE Pa. Supreme Court I.D. No. 55672 SHAUN J. MUMFORD, ESQUIRE Pa. Supreme Court I.D. No. 84176 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 Facsimile: (717) 975-8124 E-Mail: bkronthal@margolisedelstein.com Attorneys for Boyd E. Diller, Inc. File#25250.4-0003 RICHARD E. MILLIGAN AND KAY D. MILLIGAN, HIS WIFE Plaintiffs versus WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC Defendants PENNSYLVANIA NO. 01-3823 RESPONSE OF DEFENDANT, BOYD E. DILLER, INC.,TO THE CROSS-CLAIM OF DEFENDANTS, WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS AND WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS T/D/B/A REGENCY HOMES AND NOW, comes Defendant, Boyd E. Diller, Inc., by and through its counsel, Margolis Edelstein, to respond to the Cross-claim of Defendants, William C. Costopoulos, William C. Kollas, and William C. Costopoulos and William C. Kollas t/d/b/a Regency Homes, and avers the following support thereof: 66. This paragraph is an incorporation paragraph to which no responsive pleading is required and the same is, therefore, denied. COURT OF COMMON PLEAS CUMBERLAND COUNTY, 67. Denied. The averments of this paragraph contain legal conclusions to which no responsive pleading is required and the same are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa. R.C.P. 1029(e). 68. Denied. The averments of this paragraph contain legal conclusions to which no responsive pleading is required and the same are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa. R.C.P. 1029(e). 69. Denied. The averments of this paragraph contain legal conclusions to which no responsive pleading is required and the same are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant, Boyd E. Diller, Inc., respectfully requests that judgment be entered in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. MARGOLIS EDELS Date: 21;4 d8 By: Bang A. nt I.D. No. 5567 Shaun J. M ford I.D. No. 84 76 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 _,, CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the day of 2008, and addressed as follows: Stacy Wolf, Esquire 10 W. High Street Carlisle, PA 17013 Paul W. Grego, Esquire 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605 W. Darren Powell, Esquire C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 MARGOLIS EDELSTEIN By: Carol Moose M:\md r\l Zurich\25250.4-00003\Pleads\Response to Crossclaim Costopoulos.2-28-08.wpd CJ ? ry r ?,Ty ?y r '...y BARRY A. KRONTHAL, ESQUIRE Pa. Supreme Court I.D. No. 55672 SHAUN J. MUMFORD, ESQUIRE Pa. Supreme Court I.D. No. 84176 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 Facsimile: (717) 975-8124 E-Mail: bkronthal@margolisedelstein.com Attorneys for Boyd E. Diller, Inc. File#25250.4-0003 RICHARD E. MILLIGAN AND KAY D. MILLIGAN, HIS WIFE Plaintiffs versus WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/bla REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 RESPONSE OF DEFENDANT, BOYD E DILLE& INC TO THE CROSS-CLAIM OF DEFENDANT, FOLLMER EXCAVATING INC AND NOW, comes Defendant, Boyd E. Diller, Inc., by and through its counsel, Margolis Edelstein, to respond to the Cross-claim of Defendant, Follmer Excavating, Inc., and avers the following support thereof. 56. Denied. The averments of this paragraph state conclusions of law to which no responsive pleading is required and they are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa. R.C.P. 1029(e). 57. Denied. The averments of this paragraph state conclusions of law towards no responsive pleading required and they are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa. R.C.P. 1029(e). 58. Denied. The averments of this paragraph state conclusions of law towards no responsive pleading required and they are, therefore, denied. By way of further answer, the averments of this paragraph are generally denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant, Boyd E. Diller, Inc., demands judgment in its favor and against Plaintiffs, Richard E. Milligan and Kay D. Milligan, with costs assessed to Plaintiffs. MARGOLIS Date: By: Barry A. Kr I.D. No. 5567 Shaun J. Mumford I.D. No. 84176 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 r' __* CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the day of , 2008, and addressed as follows: miual Stacy Wolf, Esquire 10 W. High Street Carlisle, PA 17013 Paul W. Grego, Esquire 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605 W. Darren Powell, Esquire C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 MARGOLIS EDELSTEIN By: Carol Moose M:Vndir\l Zurich\25250.4-00003\Pleads\Response to Crossclaim2-27-08.wpd ? ; ?? {sue[ .4I RICHARD E. MILLIGAN AND KAY D. MILLIGAN V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 01-3823 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of March, 2008, upon consideration of the call of the Civil Trial List and counsel for the Plaintiffs in the person of Stacy B. Wolf, Esquire, having called the case for trial and counsel for two of the Defendants having objected to the scheduling of the trial in the forthcoming term of court, the case will remain on the trial list without prejudice to Defendant's precipe right to file a formal motion for a continuance and consideration of the matter for pretrial conference. By the Court, J. ? Stacy B. Wolf, Esquire Dana C. Panagopoulos, Esquire /Barry A. Kronthal, Esquire ? . Darren Powell, Esquire Court Admin pcb COP I ir-s ml c Led- sley 0 r., L y C6- > CR OR N 8 /Y . RICHARD E. MILLIGAN and KAY D MILLIGAN, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3823 V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC. AND FOLLMER EXCAVATING, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PIPE `Ta LfS' 4DRAL*OZGUNEW L i TO: PROTHONOTARY: Please list Defendants' Joint Motion for Partial Summary Judgment for oral argument. PLEASE NOTE THIS MATTER IS ASSIGNED TO JUDGE EBERT. Pre-Trial Conference is scheduled for March 12, 2008, and trial is scheduled to commence March 31, 2008. 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Joint Motion for Partial Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Stacy B. Wolf, Esquire address: Wolf & Wolf 10 West High Street Carlisle, PA 17013 (b) for defendants: W. Darren Powell, Esquire address: Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108-0999 Defendant Fol/mer Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Defendants Regency Homes Paul Grego, Esquire Post & Schell, P.C. 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605-0248 Defendant Diller 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: BY: Corey J LEsquire I.1?4; rb. 508 3D' ,-Borth Front Street/P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7639 2 C? ? 0 r C=Z; -n ' ?i -?r ni -Ti CC! i C_. rri .w? (.... ,. E3 4 CO c w RICHARD E. MILLIGAN and KAY D MILLIGAN, his wife, Plaintiffs V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC. AND FOLLMER EXCAVATING, INC., Defendants NO. 01-3823 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' JOINT MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOW, comes the Defendants, William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas t/d/b/a Regency Homes, Boyd E. Diller, Inc. and Follmer Excavating, Inc., by and through their respective attorneys, and file this Joint Motion for Partial Summary Judgment, averring and stating as follows: 1. On or about June 21, 2001, Plaintiffs' filed their Complaint against Defendants. 2. The Complaint alleges that in the course of Defendants Kollas and Regency Homes developing a tract of land known as Kingsbrook Development, which shares a common property line with Plaintiffs' property, Defendants made repeated and unlawful trespasses onto the property owned by Plaintiffs, resulting in alleged damage to Plaintiffs' property. 3. Plaintiffs reside at 55 Ridge Avenue, Carlisle, PA 17013 and allege that as a result of Defendants' trespass, they sustained damage to 29 deciduous trees of approximately 4 Y2 to 5" caliper. See Plaintiffs' Complaint Paragraph 22 and copies of photographs of Plaintiffs' property before and after the subject incident attached hereto as Exhibit "A." 4. Plaintiffs state that the Defendants removed and/or destroyed the shrubbery. See IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs' Complaint at 122. s ? 5. Plaintiffs seek damages for the cost replacement of the damaged trees in the amount of Fifty-eight Thousand Five Hundred Thirty-five Dollars ($58,535). See Appraisal for Cost of Cure attached hereto as Exhibit "B." SUMMARY JUDGMENT STANDARD 6. A proper grant of summary judgment depends upon an evidentiary record that either (1) shows that the material facts are undisputed, or (2) contains insufficient evidence and facts to make out a prima facie cause of action or defense, and therefore, there is no issue to be submitted to a jury. Pa.R.C.P. 1035.2; McCarthy v. Dan Lepore & Sons, Inc., 724 A.2d 938, 940 (Pa. Super. 1998). 7. When a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve their cause of action. Id. 8. If a nonmoving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law. Id. 9. The nonmoving party must adduce sufficient evidence on the issues essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the nonmoving party. Id. 10. In other words, once a motion for summary judgment is made and properly supported, the nonmoving party may not simply rest upon the mere allegations in her pleadings. Samarin v. GAF, 571 A.2d 398, 402 (Pa. Super. 1989). 11. The pleadings in this matter are closed, and discovery has been completed. PROPER MEASURE OF PLAINTIFFS' DAMAGES (IF ANY) i a 12. The correct measure of damages for the trimming of the trees in issue is the diminution, if any, in the value of the real estate, not the cost to replace the 29 deciduous trees of approximately 4'/z to 5" caliper. 13. Under Pennsylvania law, the measure of damages for removal damage of non- commercial trees is the diminution in the market value of the land. Curfman v. R & H Restaurants, Inc. 14 D&C3d. 298 (C.C.P. Franklin County 1980); Richards v. Sun Pipe Line Co., 431 Pa. Super. 429, 636 A.2d 1162, 1164-1165 (Pa. Super. 1994); Norris v. Philadelphia, 49 Pa. Super. 641 (1912); Mahaffey v. New York C. &H. R&R Co., 78 A. 143 (Pa. 1910); Ribblett v. Cambria Steel Co., 96 A. 649 (Pa. 1916); Bullock v. Baltimore & O.R. Co., 84 A. 421 (Pa. 1912). 14. As a result of the removal of the trees, the diminution in value of the property is Two Thousand Dollars ($2,000). See Before/After Valuation attached hereto as Exhibit "C." 15. As such, the Plaintiffs' damages should be calculated as the diminution in the fair market value of their property. PUNITIVE DAMAGES 16. Plaintiffs' Complaint also asserts claims for punitive damages. 17. The Pennsylvania Supreme Court has adopted Section 908(2) of the Restatement Second of Torts, which permits punitive damages only "for conduct that is outrageous because of the defendant's evil motives or his reckless indifference to the rights of others". Rizzo v. Hanes, 555 A.2d 58, 69 (Pa. 1989) (quoting Restatement (Second) of Torts § 908(2)). 18. Plaintiffs have completely failed to present any evidence that supports a claim for evil motive or reckless indifference. 19. Punitive damages are not to be awarded for "misconduct which constitutes ordinary negligence such as inadvertence, mistake, and errors in judgment". McDaniel v. t 6 Merck, 533 A.2d 436, 447 (Pa. Super. 1987), appeal denied, 551 A.2d 215 (Pa. 1988)(2itina Martin v. Johns-Manville Corp., 494 A.2d 1088 (Pa. 1985)). 20. Accordingly, Plaintiffs are not entitled to punitive damages. WHEREFORE, Defendants respectfully request this Court to grant their Joint Motion for Partial Summary Judgment, and issue an Order in the form proposed, directing that the correct measure of Plaintiffs' damages, to the extent any are proven at trial, is the diminution in value of the real estate and precluding any testimony as to the actual value of the trees, and that Plaintiffs' claims for punitive damages are dismissed. Respectfully Submitted, THOMAS, THQkAAS & HAFER, LLP W. Darren quire Corey , Esquire 305 rth nt Street, P.O. Box 999 H risburg, PA 17108 (717) 237-7154 I.D. No. 68953 Attorneys for Defendant Follmer Excavating, Inc. MARGOLIS EDELSTEIN Barry A. Kronthal, Esquire P.O. Box 932 Harrisburg, PA 17108-0932 Attorneys for Defendant Boyd E. Diller, Inc. POST & SCHELL, P.C. quire 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605-0248 Attorneys for Defendants William C. Costopoulos, William C. Kollas, William C. Costopoulos and William C. Kollas t/d/b/a Regency Homes 6 CERTIFICATE OF SERVICE I, Sherry Hauenstein, a paralegal for the law firm Thomas, Thomas & Hafer, LLP, hereby state that a true and correct copy of the foregoing Motion for Partial Summary Judgment was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: Barry A. Kronthal, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Stacy B. Wolf, Esquire Wolf & Wolf 10 West High Street Carlisle, PA 17013 Paul Grego, Esquire Post & Schell, P.C. 1857 William Penn Way P.O. Box 10248 Lancaster, PA 17605-0248 THOMAS, THOMAS & HAFER, LLP By: LI .'- 4If7Ijjn'4 01 2-7-0 Sherry auenstein Dated: 3 575135.2 `. FILL No.193 07/10 '01 13:08 `?:MIJRRAY INS "r 07/10/2001 12:30 717-697-7065 FAX:717 -N,, 2 3255 ANDREW C -9 ? Y ATTY jswg Kaynunw Riftil \tkMilOV J.D. No. ii798 3a S. Fl omw stmt P.Q.13ox 1319 C;Mia. PA 17013 (717) 24) .4813 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife RAGE 6/ 21 PAGE 04 IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, tkl/b/a REGENCY HOMES, CIVIL ACTION - LAW NO. BOYD E. DILLER, INC., and FOLLMER F.XCAVAT NG, INC. Defendants. : JURY TRIAL DEMANDED COMPLAINT NOW COME Plaintiffs Richard E. Milligan and Kay D. Milligan, by and through their attorney, Jesse Raymond Ruhl, and file the within Complaint as follows: 1. Plaintiff's Richard E. Milligan and Kay D. Milligan are husband and wife with a present address located at 53 Ridge Avenue, Carlisle, PA 17013. 2. Defendant William C. Costopoulos is an adult individual with an address located at 831 Market Street, Lemoyne, PA 17043. exHieR FILE No.193 07/10 101 13:08 TD:HURRAY INS • 07/10/2001 12:30 717-69-,-7065 FAX:717 ?92 3255 PAGE 7/ 21 ANDREW C SHEELY ATTY PAGE 05 3. DefendantWilliam C. Kollas is an adult individual with an address located at 1104 Pernwood Avenue, Camp Hill, PA 17011. 4. Upon, information and belief, Defendants Costopoulos and Kollas are partners, trading and doing business as Regency Homes. S. Regency Homes is a developer of a tract of land situated adjacent to the property owned by Plainti.M. 6, Regency Homes has an address located at 7099 Carlisle Pike, Carlisle, PA 17013, 7, Defendant Boyd H. Diller, Inc. is a corporation with an address of 6920 Wertzville Road, Enola, PA 17025. B. Defendant Diller is in the earth moving and excavation business and at all times, pertinent hereto was acting as the agent, servant and/or employee of Defendants Costopoulos, Kollas and/or Regetwy Homes. 9. Defendant Follmer Excavating. Inc. is a corporation with an address located at 238 Locust. Point Road, Mechanicsburg, PA 17055. 2 FILE No.193 07/10 '01 13:09 I MURRAY INS } 07/10/2001 12:30 717-69i-7065 10 FAX:717 Z92 3255 PAGE 8/ 21 ANDREW C SHEM Y ATTY PAGE 06 Defendant Follmcr is in the earth moving and excavation business and at all times, pertinent hereto was acting as the agent, servant and/or employee of Defendants Costopoulos, Kollas and/or Regency Homes. FACTUAL BACKGROUND 11. Defendants Costopoulos, Kollas and Regency Homes an developers ofa tract of lazd known as Kingsbrook Devclopment, 12. The Kingsbrook Development property and the Plaintiffs share a common property line, and the Kingsbrook Development property abuts Plaintiffs' property to the east of Plaintiffs' property. 13. In the course of developing their property known as Kingsbrook Development, Defendants Costopoulos, Kollas and Regency Homes, through the acts and conduct of their employees, servants, agents, workers, independent contractors and/or others acting on their behalf, made repeated and unlawful trospasses onto the property owned by Plaintiffs. 3 FILE No.193 07/10 '01 13.09 'D:MURRAY INS FAX:717 "'92 3255 PAGE 9i 21 07/10/2001 12:30 717.697-7065 ANDREW C SHEELY ATTY PAGE 07 14. These trespasses were made through the intentional acts of all Defendants hereto for the purpose of increasing the value ofKingsbrook Development while diminishing the value of Plaintiffs' property. 15. These repeated trespasses occurred between the time of March, 2000 and continued through the fall of 2000. 16. The repeated and unlawful trespasses were made without any claim of right thereto and were made in oomplete disregard for the rights of Plaintiffs. 17. Moreover, the trespasses continued even after advised by Plaintiffs that the Defendants were trespassing and that the trespasses must cease. 18. NovertheleS$, Defendants refused to abide, by the Plaintiffs' demand that the trespasses cease, and Defendants continued with their wanton, willful, reckless and/or negligent trespass upon the Plaintiffs' property. 19. These trespasses continued despite the fact that Defendants' admitted their trespasses and offered to pay for some of the damage caused to PlaintiM' property. See Defendant Follmer's chock No. 1086 in the amount of $400.00, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. 4 FILE No.193 07/10 '01 13:09 T:MURRAY INS 07/10/2001 12:30 717-697-7065 FAX:717 "'92 3255 PAGE 10i 21 AW)REW C SHEELY ATTY PAGE 08 20. This admission and acknowledgment of the trespass by their agent is binding upon Defendants Costopoulos, Koji as and Regcnoy Homes. 21. The sum of $400.00 offered by Defendant Follmor is totally inadequate to oompensate Plaintiffs for the damages suffered. 22. As a result of the trespass, Plaintiffs suffered damage to their property in the following manner., a. Plaintiffs' mail box was damaged; R b. Defendants removed the tap soil from Plaintiffs' property, C. Defendants removed mulch from Plaintiffs' property, d. Defendants removed and/or destroyed sl=bbery on Plaintiffs' property, e. Defendants removed and/or destroyed approximately 29 deciduous trees of approximately 4'h "- 5" caliper, plus other trees of smaller caliper. f Defendants' destroyed the balance of natural beauty and cultivated landscaping that plaintiffs were fostering; and g. Defendants interfered with Plaintiffs' right to be free from invasion. 23. In addition, Plaintiffs were damaged in that the trespass will require theta to re-landscape the areas which were the subject of the trespass. 5 t FILE No.193 07/10 '01 13:09 'D:HURRAY INS 07/10/2001 12:38 717-697-7065 FAX : 717 '?V 3255 ANDREW C SHEELY ATTY PAGE 11/ 21 PAGE 09 24. As a result of the trespasses, Plaintiffs have been damaged in an amount in excess of $94,650.00 as set forth on the Bid proposal dated February 2, 2001, a copy of which is attached hereto at Exhibit "B" and incorporated herein by reference- COUNT I -TRESPASS (PlaiuHM Y. All Defendants) 25, The foregoing averments are incorporated herein by reference. 26. Defendants, through their agents, servants and/oar employees knowingly, recklessly and/or negligently trespassed upon the Plaintiffs' property. 27. The aforesaid actions of Defendants, their agents, servants and/or employees damaged and wrongfully interfered with Plaintiffs' property, and Plaintiffs rights as property owners as set forth above. 28. The acts of Defendants were outrageous, reckless, callous, pertbimed with reckless indifference, and were performed to increase the value of Defendants' development whila diminishing the value of Plaintiffs' property. 29. As a result, the conduct ofDefcndants eatitles Plaintiffs to an award of punitive damages. 6 FILE: No.193 07/10 '01 13:10 D:MURRAY INS 07/10/2001 12:30 717-697-7065 FAX:717 °'92 3255 PAGE 12r 21 ANDREW c SW-ELY ATT`f PAGE 10 WHEtZUORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in an amount in excess of $94,650.00, plus punitive damages, attorney's fees, interest and costs of suit. COUNT IY - STRICT LIABILITY (Plaintiffs v, All Defendants) 30. The foregoing averments are incorporated herein by reference. 31. An individual trespassing and responsible far the destruction of property is strictly liable for any and all harm caused without regard for negligence. V 32. Moreover, the operation of heavy construction equipmoat is an abnonnally dangerous and ultrahatardous activity. 33. Defendants were at all times pertinent hereto engaged in an abnormally dangerous and ultrahaxardous activity. 34. Plaintiffs suffered damage to their property in the fallowing manner as a result of the invasion: a. Plaintiffs' mail box was damaged; b. Defendants removed the top soil from Plaintiffs' property; 7 t F I L.?a Sao*L9764-g ot'X 13.10 ' D : HURRAY INS 072; MM 4;74;3 AO 717-69'1-7065 800-942-9715 Phone 717-230-8200 Phone 800--833-9422 Fax 717-221-6062 Fax FAX:717 =°92 3255 ANDREW C SHEELY ATTY C. Defendants removed mulch from Plai*-roPer'yl PE N NATIONAL INSURANCE d. Defendants removed and/or destroyed shrubbery on Plaintiffs' property; e. Defendants removed and/or destroyed approximately 29 deciduous trees of approximately 4f/x "- S" caliper, plus other trees of smaller caliper. PAGE 13/ 21 PAGE 11 f: Defendants' destroyed the balitace of natural beauty and cuttivated laxtdsoaping that plaintiffs were fostering; and 9. Defenditnts inte trod with Plaintiffs' right to be free from invasion. 35. As a result, Defendants are strictly liable for the damages suffered by Plaintiffs. WHEREFORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in as amount in excess of $94,650.00, plus punitive damages, atttotney's fees, interest and costs of suit. COUNT III - NEGLIGENCE (Plaintiffs v. All Defendants) 36. The foregoing averments are incorporated herein by reference. 37. Plaintiffs suffered damages to their property as a result of the negligence of the Defendants, their agents, servants and/or employees acting within the course and/or scope of their employment. 8 F I LEOQN, h-Q74r1iQ oiled 13:10 ,) : MURRAY INS 0 2iA&171J,2Q@ 717-697-7965 800-942-9715 Phone 717-230-8200 Phone 800-833-9422 Fax 717-221-6M2 Fax FAX:717 '1q2 3255 ANDREW C SI EELY ATTY 38. Defendants had a duty to avoid trespassing on? ntiff?'r ZONAL RANCE 39. Defendants breached this duty by carelessly, recklessly, negligently or wantonly trespassing upon Plaiztiffs' property, PAGE 141 21 PACE 12 40. The negligence, carelessness, recklessness or wantoness of Defendants, their agents, servants and/or employees consisted of the following: (a) Failure to establish or identify the exact property lines before proceeding with the operation of heavy machinery; (b) Willfully and recklessly destroying shrubbery and trees before ascertaining the ownership thereof; (c) Callously disregarding Plaintiffs' assertion of the trespass, and continuing trespassing upon the Plaintiffs' property; (d) Failing to properly direct and supervise their employees, agents, contractors, setvants and/or workmen. 41. The plaintiffs have been damaged by the negligence, carelessness, recklessness or wantoness of the Defendants, and the ;negligence, carelessness, recklessness and/or wantoness of the Defendants was the proximate cause of Plaintiffs' injury. 9 FILES No.193 07/10 '01 13:10 '0:MURRAY INS FAX:717 °92 3255 PAGE 15i 21 07/10/2001 12:30 717-69 x7065 ANDREW C SHEELY ATTY PACE 13 WHEREFORE Plaintiffs Richard E, Milligan and Kay D. Milligan demand judgment in their favor and against Defendants in an amount in excess of $94,650.40. plus punitive damages, attorney's fees, interest and costs of suit. COUNT TV - CONVERSION (Plaintiffs v. All Defendants) 42. The foregoing averments are incorporated herein by reference. 43_ As sot forth more idly above, Defendants converted the property of Plaintiffs. 44. The Defendants converted Plaintiffs' property for their own personal, commercial advantage, to the financial disadvantage of Plaintiffs. 45. The conversion of Plaintiffs' property was done intentionally and callously so that the value ofKingsbrook Developmont would be augmented. 46. Converting Plaintiffs' property for the commercial advantage, of the Defendants was outrageous conduct which entitles plaintiffs to an award of punitive damages, to FILE, No.193 07/10 '01 13:10 'D:MURRAY INS FAX:717 `92 3255 PAGE 16i 21 07/10/2001 12:30 717-697-7065 ANDREW C STEELY ATTY PAGE 14 WHERVORE Plaintiffs Richard E. Milligan and Kay D. Milligan demand judgment in their favor and against Dofcnd=ts in an amount in excess of $94,650.00, plus punitive damages, attorney's fees, interest and costs of suit. DATED: June 21, 2001 Jl /.//, se R y tong RRM1, Esquire A Att oy M No. 55798 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 (717) 241-4813 Attorney for the Plaintiffs naas6ne Rkedsw?ww?7li?wi?iut,w;d 11 FILE,No.193 07/10 '01 13:11 TD:MURRAY INS FAX:717 "192 3255 PAGE 17/ 21 07/10/2001 12:30 717-69-i-7065 ANDREW C 5HEELY ATTY PAGE 15 v1;WIC,A TION Kay D. Milligan deposes and says, subject to the penalties of 42 P&C.S.A. Sec. 4101, relating to unsworn falsification to authorities, that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. r% y .Milligan FILE,No.193 07/10 '01 13:11 '?:MURRAY INS 07/10/2001 12:30 717-697-7065 FAX:717 "92 3255 ANDREW C SNEELY ATTY PAGE 20/ 21 PAGE 1$ FILE,No.193 07/10 '01 13:11 'D:MURRAY INS 07/10/2001 12:30 717-697-7065 FAX:717 °92 3255 PAGE 18/ 21 ANDREW C SNEELY ATTY PAGE 16 DA71 T&V. it-IN 4'.. im (11jo - rwzz all h ZO$ of50805213SN' •• 4M.0 ai EXCAVATING, INC 1086 0 SUMMER . PA 17018 OR. --5--Z3 -75e) 4o-t?u tt FILE,No.193 07/10 '01 13:11 "):MURRAY INS 07/10/2001 12:30 717-697-7065 FAX : 717 -92 3255 ANDREW C SHEELY ATTY PAGE 19/ 21 PAGE 17 EXHIBIT "B" . FILE; No.193 07/10 '01 13:11 '?:MURRAY INS 07/10/2001 12:30 717-63(-7065 FAX:717 "92 3255 PAGE 21/ 21 ANDREW C SHEELY ATTY PAGE 19 -.- DAVIS LANDSCAPE LTD Smee 19JU Davis Landscape Ltd. Bid Proposal February 2, 240 l 10. Bich and Kay Milligan Carlisle, PA From: Terry Koffman, (thief Vstimasor Davis Landscape Ltd. Phone # 7.17-545-4235 Fax# 717-545-3060 Reference Projeet: Rick and Kay Milligan Scope of Work: !,)supply all equipment and tabor to install 29 Deciduous trees 4 1/2-5° caliper. 2. )lnstallWon of aged mulch over entire planting area to a depth of 1 ". 3.)Fine grade seed and mulch lawn areas. 4,)Ky'dro-seed (no gmding) disturb area of e:asttno field. Proposal Hoe; $94,650.00 Clarification: 1) Supply and/or spreading of topsoil is excluded. 2) Davis Landscape to receive topsoil within one tenth of a foot from finish grade. 3) Erosion control materials (mats, netting, blankets, silt tbnce, temp. seed and mulch) are excluded. 4) Maintenance of plant material is until initial completion of our installation work. All maintenance beyond this time is by home owner. 5) Maintenance of seeded areas is excluded. 6) Sodding is excluded. 7) Proposal price is based on installation of project in the Spring 2001 planting season. $) Wanm ity of plant material is 6 month from date of installation. 9) Proposal may be withdrawn if not accepted within 30 days. W p/bids/bids-pOmitlipn 2340 Paxton Church Road Hasowouq; PA ? 71 • (717) 545.4235 • Fax (717) 545-3660 146 Rupert Rolla. f=aleicb. NC 27(Mi - i;! c •a: (132.1049 9 Fax (919) 692.3877 AWN Plaintiffs' Photos. Nos.: 10-10 - 10-12 f'ae 4 of?7 Plailitiffs' Photos. Nos.: 10-13 - 10-15 Plainti#'ts No, j.: 10-1 9 hens. 21 Plaintiffs' Photos. Nos.: 10-22 - 10-24 PaL)c 8 o Plaintiffs' Photos. Nos.: 10-28 - 10-30 Pa'7c R) Plaintiffs' Photos. Nose 10-31 - 10-33 r? a 9? z- - r,- M ? j t}r r ti I13?se?- r_ ? y Plaintif'fs' Photos. Nos.; 10-34 - 10-36 p`i?,?C' t 1 ii i` 21 r p,a«etiffsph1t Nos.. 10-31 - z i 41 Plaintiffs' Photos. Nos.: 10-40 - 10-42 f r• j :Al is, f. •1 ?,??tntiytfs 46 'Nos„ 10 p"jae i 7 1.. ice'' '•'. ??.^?l l? r.a?. !y 1 "ntms Photos AO-49 - ?Q- , Nos'. Plaintiffs' Photos, Nos.: 10-52 - 1.0-54 Plaintiffs' photos. Nos.: 110-58 - 10-60 plaintiffs' Photos. Nos.: 10-61 - 10-63 Pa 7e ? l of ?, f / M 7 ? 4 r lye > k ?C 7Y' 5}{ ti 1 S {?'v 57' ,ti 4 y.??? j ? r >t rat ? ?°¢°. Ali- Plaintiffs' Photos. Nos.: 10-64 a 10-66 plaintiffs' phfltfls• 10-69 Pa4e ?3 of Plaintiffs' Photos. Nos.: 10-70 - 10-72 page 24 of 27 Plaintiffs' Photos= Nos.- 10-73 - 10-75 14 - f t t? r . f?f 'Y?yj AF C a Plaintiffs' Photos. Nos.: 10-76 - 10-78 ti plaintiffs Nos-'10-19 - 10-?l h About Trees We're All About Trees Appraisal for Cost of Cure, Milligan Residence, 55 Ridge Avenue, Carlisle, PA. Prepared for: Mr. Jesse Ruhl, Esquire 350 West Market Street York, PA 17401 Prepared by: Eric Vorodi Consulting Arborist ISA Certified Arborist PD-347 May 3, 2005 © ABOUT TREES 2005 Eric Vorodi, Consulting Arborist EXHIBIT 25 Sheeley Lane Boiling Springs, PA 17007 (717)241-2814 (717) 576-4398(c) vorodi@paonline.com About Trees We're All About Trees May 5, 2005 Mr. Jesse Ruhl, Esquire 350 West Market Street York, PA 17401 Dear Mr. Ruhl, The following report contains an appraisal for the value of approximately 30 trees destroyed by construction equipment on the property of Mr. and Mrs. Dick Milligan, 55 Ridge Ave, Carlisle, PA. Definition of assignment. You have requested an appraisal for the destroyed trees/landscape at the location indicated above. Purpose of this report. The purpose of this report is to provide a written estimate of the value of the trees that were destroyed as a result of trespass by construction equipment on the property and the complete removal of trees and stumps from the site. Additional damage occurred as a result of destruction of soil structure, groundcover and loss of topsoil from the disturbed site. Assumptions and limitations. The date the damage occurred was prior to May of 2004 when I was first contacted. Date of consultation. I was originally contacted by Mr. Ruhl on May 20, 2004. We had an initial meeting on June 8, 2004. Field examinations were conducted on July 7`h, July 21St and August 13'h, 2004. Limit of scope. This report provides a valuation of the trees which were destroyed by the trespass of construction equipment onto the Milligan property. Tree identification and location. The Milligan property is located in the Wertz Run Heights development, several miles north of the town of Carlisle, PA. The disturbed site consists of an area of approximately 10,000 ft2 (1/4 acre) located at the east end of the Milligan property. The area measures 120' wide at the base of the incline, 90' wide at the top, 90' long on the northern border and approximately 103' long on the southern border. Based on pre-casualty photographs of the site and a survey of the adjacent woodlot, it can be determined that the subject trees consisted of a stand of Chestnut Oak (Quercus prinus), Northern Red Oak (Quercus rubra) and Eastern White Pine (Pinus strobus) that Eric Vorodi, Consulting Arborist 25 Sheeley Lane Boiling Springs, PA 17007 (717)241-2814 (717) 576-439S(c) vorodi@paonline.com About Trees We're All About Drees occurred in approximately the same percentages and distribution as trees on the neighboring tract of land which remains undisturbed. General tree conditions and observations. In the case of completely destroyed landscapes with a significant volume of plant material, it is typical to obtain plant data from a plot which closely resembles the destroyed site. In this case, the adjacent property consists of a continuation of the woodlot which was destroyed. Consequently, data was collected from the adjacent property. A plot with identical dimensions was measured in the adjacent woodlot to collect data. This site will be referred to as the survey plot. The survey plot consisted of approximately 75 live trees between 2" and 14" diameter breast height (DBH). Other seedling and understory vegetation also exists. Approximately 50% of the trees in the survey plot were identified and measured to provide data to evaluate the loss from the destroyed site. The sample from the survey plot contained: a) Thirty (30) Chestnut Oaks (Quercus prinus) ranging from 2" to 14" DBH (diameter breast height) with an average diameter of 7.5". b) Three (3) Northern Red Oak (Quercus rubra) (or Red/Black Oak crosses) ranging from 2.5" to 11.25" DBH, with an average diameter of 6.6". c) One (1) Eastern White Pine (Pinus strobus) with a DBH of 21". Vigor. The trees in the survey plot displayed good vigor and overall appearance. Foliage color was good. Average twig growth was typical for oak growing under these conditions. The trees are naturally occurring and adapted for the site. Trunk condition. The survey trees have predominantly single, straight and uniform trunks without cavities, decay or evidence of previous injury. Root crown. Root crowns were visible at and above grade (as desired) and showed good buttress root development and no evidence of girdling roots. Branch and crown structure. The survey trees have a branch structure typical of the species as grown on a wooded site. Pests. No significant insect, mite or disease infestation was found. Life expectancy. Before the trespass and destruction of the site, the trees would have had a life expectancy in excess of 50 years. Damage. Pre-casualty photos of the site show that approximately 30 trees were destroyed as a result of trespass by construction equipment on the property and the complete removal of trees and stumps from the site. Additional damage occurred as a Eric Vorodi, Consulting Arbonst 25 Sheeley Lane Boiling Springs, PA 17007 (717) 241-2814 (717) 576-4398(c) vorodi@paonline.com b . About Trees We're All About Trees result of destruction of soil structure, groundcover and loss of topsoil from the disturbed site. Appraisal. Method. It was determined by the consulting arborist that the "Cost of Cure" method (as described in the Guide for Plant Appraisal, 90' Edition) would be the most appropriate method to use to provide a valuation for these trees. The "Cost of Cure" method is commonly used to determine valuations for trees when complete destruction of a site is responsible for the loss of multiple plants. Additional justification for the "Cost of Cure" method is provided by the primary, secondary and tertiary functions of the stand of trees. The primary function was to provide privacy from the adjacent new development being built. The height (approximately 30') and density of the previously existing stand of trees provided near complete privacy from the new development. Additionally, it provided screening from newly installed street lights along the road in the new development and acted as a sound barrier. Finally, the stand of trees provided wildlife habitat that cannot and is not being fulfilled by the remainder of the Milligan landscape. The tree stand provided cover and food for white-tailed deer, squirrels, numerous species of birds and other small mammals. The Cost of Cure in this case consists of: 1. the cost of replacement plants (adjusted for condition), plus 2. the cost of installation, plus 3. the cost of maintenance for a five (5) year period to ensure that the trees become well established and continue to thrive beyond the first five (5) years after installation. Trees for installation were specified to be 2.5" caliper (diameter). The average diameter of the oak trees in the stand was 7.5" DBH. If the replacement trees were to increase in diameter at a rate of 1/2" per year, it could be expected to take at least ten (10) years to reach parity. Appraised Value. The appraised value to restore the property to its pre-casualty condition, purchase and install trees and provide maintenance for a period of five (5) years until the trees are established is $58,385. Supporting information. Appraiser's credentials. The consulting arborist and appraiser for this report was Mr. Eric Vorodi. Mr. Vorodi is an ISA (International Society of Arboriculture) Certified Arborist, (Certified Arborist PD-347). He holds degrees in Biology and Horticulture from The Pennsylvania State University. He has worked in the fields of horticulture and arboriculture since 1989 and has worked as a consulting arborist since 2002. Eric Vorodi, Consulting Arborist 25 Sheeley Lane Boiling Springs, PA 17007 (717)241-2814 (717) 576-4398(c) vorodi@paonline.con, About Trees We're A11 About Trees Photographs. See attached. Field Form Report for Cost of Cure. See attached. Should you have any questions, feel free to contact me by phone or email at any time. Respectfully, \JIQ Eric Vorodi Certified Arborist, PD-347 Eric Vorodi, Consulting Arborist 25 Sheeley Lane Boiling Springs, PA 17007 (717)241-2814 (717) 576-4398(c) vorodi@paonline.com Milligan property suPPorting photo 1. View looking east from back deck. Note street lamps visible. Milligan proper!y supporting, photo 2. View looking east from front yard. Houses to be located at top center and top right of photo. Milligan property supporting photo 3 View looking north across destroyed area. (Approximately'/4 acre) Milligan property supporting photo 4. Neighbors to the east at top of hill, one lot beyond Milligan property. Milligan property supporting photo 5. Digitally rendered photo of potential view of future neighbor to the east. Milligan propertjsupporting photo 6. Digitally rendered view to the east with trees restored. View of Milligan property from neighboring lot at top of hill. Approximation of view of Milligan property from neighboring lot at top of hill before destruction of trees. Milligan property supporting photo 7. Milligan property supporting photo 8. FIELD FORM REPORT FOR COST OF CURE Site Location Address 5s !` e Ave . City (R r ll S?G Suite PA Zip Code ?? 1 3 OWNER TN'FORMATION Name Dick- t {Cay A 441"I" ,-_? {lrS?L State PA Zip Code )?0 13 c ?07 1 I ?) Z If 0 - 0 1? 7 9 Bus. Phone ( ) Fax Z/' °? Time 9'00 am/Pm Weather (7vv wQ.'ct.t _- ?ction Date 7 information requested by Mr. Jesse R-W W - p Reason for appraisal, type of damage and additional comments rrda L!' Sf fc IFe `r co>+s?( ?fi lao ? ?,,. a?? ?r?, P.-aPeR^f?. SUMMARY Cost of Cure determines the cost of the replacement and/or repairing of plants and restoration of the property to its pre-casualty condition. Add Debris Removal and Hardscape Restoration Cost, Plant Replacement Cost, and Plant Restoration and Establishment Cost together in order to determine Cost of Cure. All Cost of Cure recommendations to recreate Mevious use or intended passive recreational use shall be of good judgment. practical reasonable and shall not exrPP,d the value before the casualty These procedures (methodologies) can be used to estimate landscape value in the absence of a casualty, e.g. an inventory. ACTUAL APPRAISED A. Debris Removal and Hardsc ape O Restoration Cost.............................................................................................. $ $ 93? B. Plant Replacement Cost ............................. ................................. $ 372 ?2- $ 3`f, C. Plant Restoration and Establishment Cost ............................ ......... $ 3 i 6 b $ 2-3,605- COST OF CURE ................................................................A + B + C = $ 6 01 Sg 7 $ S? , 5 3S Prepared by Err C- V& re, dT , Ce,,-6 i'r",? r/avrfs? PD -3Y7 Address A brwt 'TrezS 2 S SGt e e le r La,,, City ?a t A N j Se rt"f s State 10A Zip Code J 700 7 Res. Phone ( ) Bus. Phone (71-7 ) 2 1 1 - 281 Fax ("t 1-7 ) 2- L f CERTIFICATION I certify that all the statements of fact in this Frelc) Form are true, complete and correct to the best of my knowledge and belief and are made in good faith. Signature of Appraiser ??- ` / This form is published as an aid in determining Cost of Cure landscape values. While this form provides a detailed format for determining value, the integration of facts needed to determine value requires a high degree of knowledge and experience. This form is intended for use by or in consultation with adequately trained personnel. CTLA and its Sponsoring Organizations accept no liability for values determined through use of this form. CTLA's Sponsoring Organizations American Association of Nurserymen-1250 I Street, N.W., Suite 500, Washington, DC 20005, (202) 789-2900 American Society of Consulting Arborists-15245 Shady Grove Road, Suite 130, Rockville, MD 20850, (301) 947-0483 Associated Landscape Contractors of America-12200 Sunrise Valley Drive, Suite 150, Reston, VA 22091, (703) 620-6363 Association of Consulting Foresters of America-1403 King Street, Alexandra VA 22314, (703) 548-0990 International Society of Arboriculture-P.O. Box 3129, Champaign, IL 61826-3129,(217) 355-9411 National Arborist Association-P. O. Box 1094, Amherst, NH 03031, (603) 673-3311 Information entered on this form may be admissible as evidence. (Based on Guide to Plant Appraisal, 8th Edition) A publication of the International Society of Arboriculture. ©Copyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved. r ? Sketch Showing Layout of Site` ?.T ?i i I- J_ --------------- - ?JJ L h'-I - - - ?. Li L" LLj_ _11J 1 - ---- - - -------- 1 l L _j LJ i ! r r L ' I - - - A _1L.1 i_ij _j 7. -r J .. 1 I I ,--,- -?- - - - = ` J- ' - W u 1- J LEGEND" l l L J_LL:_LL 1 1 J-J -J--l. LL ; l ? f f S Gdiacewf ?40 ed lot T small mrP?e `? - I., LI L_1 I I I I ! r i_J!1 I II J ' _.I ' LI ? I J I L 1 --?_J r J' 1 L l_ I -LJ I t l L - ?: r!L/CLCLC? 7 *Include North arrow where appropriate. "Include language for description of areas. Explanation of Sketch East W N1 I? am ? vo ? !vl.iC?n w65 , fw 6 fMJ 6? er,V ?y Plh,Et t . Ey,' i' a G,?P& w i +(? Its so ?i? t"wGS Co4ptefrly jewta{isb%fj - 't?cts 6 [(dWd? 5t' 5- ?J+4I 4Vf3011( p?S?tts? - - d?WN lni(I. T Description of Photos - 5ef ct -Uc(1,ed . #l #5 #9 #2 #6 #10 #3 #7 #11 #4 #8 #12 © Copyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved A. DEBRIS REMOVAL and HARDSCAPE RESTORATION COST Trunks, stumps. branches, dead shrubs, contaminated soil, broken hardscape structures, i.e., destroyed rock walls, damaged lightning ,protection. broken irrigation and any other damaged aspects of the landscape that should be removed. Repairs to the hardscape should restore any hardscape structure to its pre-casualty condition. Cost shall include hauling and dumping fees, hardscape materials costs, equipment costs, labor costs, license fees, and any other expenses associated with removing debris, cleaning the damaged site and restoring the hardscape structures. This form may be useful for estimating hardscape value in the absence of a casualty. = 1 List Debris Removal, Cleaning and Hardscape Restoration Tasks 2 Debris Removal Cost 3 Cleaning Cost 4 Hardscape Restoration Cost 5 Pre-Casualty Hardscape Cond. (%) 6 Appraised Hardscape Restoration Value (4 x 5) . j it? ?; 1T I COLUMN TOTALS SOURCE OF ESTIMATE(S) - CONTRACTOR(S) Estimate #(s) Name Address Phone # ACTUAL DEBRIS REMOVAL AND HARDSCAPE RESTORATION COST ... ADD COLUMNS (2 + 3 + 4) .......... $ APPRAISED DEBRIS REMOVAL AND HARDSCAPE RESTORATION COST ... ADD COLUMNS (2 + 3 + 6) .......... $ Attach any additional contractor information, i.e., reports, management plans, schedules, maps etc. to this document relevant to debris removal and hardscape restoration. OCopyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved. DETERMINING PLOT SIZE FOR ASSESSING PLANT LOSS/DAMAGE Plots should represent similar vegetative types and sizes, soils, exposure and other factors that influence plant growth. Plant size, quantity and condition are key variables in determining the extent of and method to use for site restoration. On-site plot(s), representative of the damaged site, should be selected when the damaged site is so large that it would be unreasonable to assess 100% of the damage. Off-site plot(s), representative of the pre-damaged site, should be selected when the plants and/or their remains were totally destroyed or removed from the damaged site. More than one plot may be advisable if the vegetation varies in size, species or condition at the site. Plot dimensions can be selected that are most convenient for the site as long as the plot is large enough to include a representative sample of all or a portion of the damaged site. Area of plot(s) for large damaged sites can be a smaller % of the total site area than for smaller damaged site(s). A radius of a circle or a rectangle (a square is an equal-sided rectangle) is easy to use. It is only necessary to be able to relate the plot area(s) to the damaged site area in order to arrive at a total inventory or plant replacement cost. The Plot Size Dimension Table is illustrative of the relation of plot dimensions to plot area. PLOT SIZE DIMENSIONS Sides of Radius of Approximate Plot Size a Square a Circle (Feet) (Feet) (Square Feet) Acres 6.6 3.7 45 1/1000 21.7 11.8 430 1/100 41.7 23.5 1,740 1/25 46.7 26.3 2,180 1/20 66.0 37.2 4,350 1/10 93.4 52.7 8,720 1/5 104A 58.9 10,900 114 Meters Meters (Square Meters) (Hectares) 5 2.8 25 1/400 10 5.6 100 1/100 15 8.5 225 1/44 20 11.3 400 1/25 25 14.1 625 1/16 30 17.0 900 1/11 40 22.6 1600 1/6 50 28.3 2500 1/4 60 33.9 3600 1/3 Example 1: 21,780 square feet (ft2) or 2,000 square meters (m2) of trees, shrubs and ground cover were damaged in a wooded area behind a home. A representative plot of 4,356 ft2 or 400 m2 equals 20% of the damaged site that should be inventoried. Using the Plot Size table, 4,356 ft2 or 400 m2 represents 1/10 of an acre or 1/250 hectare so a square with 66-ft or 20-m sides or a circle with 37.2-ft or 113 m radius can be used to establish the plot in which representative vegetation can be inventoried. Example 2: 2.5 acres (108,900 ft2) or 1 hectare (10,000 m2) of frees, shrubs and ground cover were damaged in a wooded area. Therefore, 10,890 ft2 or 1,000 m2 of undisturbed similar vegetation equalling about 10% of the damaged site should be inventoried. Thus, a recommendation of establishing five 1/10th acre plots or rive 1/25th hectare plots judiciously spaced could be used to collect reasonable data representative of the site. ©Copyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved. B. PLANT REPLACEMENT COST Page of _ raiser: Eri G V0 V* t Notekeeper: -d Area in (fr, to ): "? r /?+ 'D Appraised vegetation for inventory is located: Area in (ft'. m ): On Site Off Site ? (check one) ?_ if ttta kppraise l5 a s 1e`-e t 'ti beaus of the size of the area or because plants are removed, then Plant Rr :tor 'i,tnt C" L w4iz f ?,,? f „3S+.i:tt h r: "+Jr, S:re" pint ;f :itX1 ft= i found with vegetation similar to what was destroyed. An inventory and nteas[sred +i, itl3in this pint. The cost to replace these plants within the undamaged plat 3, ,e M Ar -% TX Plant Replacement Cost of Plots = Plant Replacement Cost 3`x t-ft.1i X $3,405 = $41,609 REPLa=iC'EMENT VEGETATION APPRAISED COST CO MPOU NDED C OST AT _% XX 8 j I # Plans '^i art- Size Plants Cost 9 Total Plant Cost (7 x 8) 10 Adjusted Plant Cost (4 x 9) 11 Actual Cost to Install* 12 Actual Replacement Cost (9+11) 13 ears to Parity 14 _ t j < 15 Future Plant Cost (lo x ] 4) 16 Future Installed Cost (I I x ] 4) 17 t(12) X S yes, Future Maintenance Cost 18 Appraised (iU+ u)+f7 or Compounded Appraised 15 + 16 + 17 2•s ' Z5' ty 0-7 IZ 3Y5- 215-9 3? 287- /v r 23 6oS S?' 3S? i i-\ TOTALS Il??llllll!llll?l 6 r 7 Y, r2, YS? 22 ,ref 37 ?$ llll?ll lllnlul 23 60 5- 1 d S35' fthztnaged Area (ft') = Plot Areas (ft=) x Actual Plant Replacement Cost of Plots = $ Darnaged Area (ft=) - Plot Areas (ft-) x Appraised Plant Replacement Cost of Plots = Damaged Area (ft=) + Plot Areas x Total Number of Replacement Plants = st of installation usually varies between 2 and 3 times the plant cost depending on region and type of plant. Cost includes but is not limited to all s1 f6rtransportation, equipment, labor, soil, mulch, guying, guarantee, profit, etc. St- Directions for calculating Compounded Costs or Values on pages 8 and 9. Copyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved. 5 C. PLANT RESTORATION and ESTABLISHMENT COST Using good judgment, check and estimate the cost of those categories and tasks listed below which are necessary to re-establish the area to its pre-casualty condition. Which tasks, if any, under which categories are necessary will depend on the situation. Multiply current year cost times number of years for establishment to determine actual cost. Example: 1 year cost to fertilize = $800; thus, for 3 years fertilization at 6% interest the compounded cost is the sum of the Annual Compound Interests (1.19 + 1.12 + 1.06 = 3.37) multiplied by the annual cost of the fertilizer - $800 x 3.37 = $2,696.* Category I. Pre-planting and/or Restoration and Establishment S Y ?S ? $ a. Control vegetative composition and competitive vegetation by the removal of inferior species, herbicide use, or controlled burns. V $ b. Protect against erosion as needed. An example would be a soil stabilization system. $ c. Establish and operate irrigation and drainage system(s). $ d. Test the soil and fertilize and/or amend or replace as indicated. $ e. Minimize other environmental impacts, i.e., wind, cold, salt, intense sunlight, etc. $ f. Protect original recreational features of area. ? $ g. Minimize insect, disease, cultural problems and risk of fire (Plant Health Care Program). Cost of I. Actual $ 23, or Appraised* $ 2- 3 , 60s Source of Estimate (Contractor) L"7 (I tz l,V44sca IJe,) Cum er /mot , P14 Attach any additional contractor information i.e., reports, management plans, schedules, maps, etc. to this document relevant to pre-planting and/or restoration and establishment. Category II. Plant Removal to Re-establish and Maintain Planted Species Note: These removals are made for the purpose of re-establishing original tree and shrub composition and quality by removing trees and shrubs of non-original undesirable species, form, or condition from the understory and main canopy of a damaged area. $ a. Remove non-original trees and shrubs from the lower crown classes (Suppressed and Intermediate trees/shrubs) to release newly planted species. $ b. Remove damaged trees and shrubs with unreasonable risk or non-original species from the middle and upper portion of the canopy (Dominant and Codominant trees) to stimulate newly planted tree and shrub species. $ c. Remove damaged Dominant trees with unreasonable risk to stimulate new plants in the lower crown classes. Definitions: 1. Dominant - crowns extending above the general level of the crown cover and receiving full light from above and partly from the sides. 2. Codominant - crowns forming the general level of the crown cover and receiving full light from above, little from the sides. 3. Intermediate - crowns extending into the crown cover formed by dominant and codominant trees; receiving a little direct light from above (often referred to as understory trees). 4. Suppressed (overtopped) - crowns receive no direct light either from above or from the sides (often referred to as understory trees/shrubs). Note: Selection of plants to be cut in thinnings based on original quality and density at the time of loss. Relative plant position and condition play important roles. Some plants grow vertically (geotropic). Other plants tend to lean toward the light (phototropic). Cost of 11. Actual $ Appraised* $ Source of Estimate (Contractor) Attach any additional contractor information i.e., reports, management plans, schedules, maps, etc. to this document relevant to plant removal to re-establish and maintain planted species. * See page 8 and 9 for more detail about Compounded Costs. © Copyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved. Category III. Pruning to improve Restoration of Damaged Plants $ a, Allow self-pruning of trees and shrubs (natural branch shedding). $ b. Prune to clean, thin, raise, reduce and/or restore the crowns of trees to remain (Circle one or more types of pruning - See ISA Tree Pruning Guidelines 1995). Cost of M. Actual $ Appraised* $ Source oPEstimate (Contractor) Attach any additi,.mil contractor information, i.e., reports, management plans, schedules, maps, etc. to this document relevant to pruning to improve restoration of dan-u-,oei ?res Category TV Clear Cut to Regenerate Lost Plants 5 a. Remove undesirable plants if the area has regrown with undesirable, non-original species. $ b. Allow natural reproduction by seed from original trees and shrubs previously destroyed and sow seed in the soil duff. $ c. Review suggested Tasks a-g in Category I and recommend any of those treatments for Category IV. Cost of IV. Actual $ Appraised* $ Source of Estimate (Contractor) Attach any additional contractor information i.e., reports, management plans, schedules, maps, etc. to this document relevant to clear cutting to regenerate a lost wooded area. Category V. Leave Seed Trees and Shrubs to Regenerate Lost Plants Note: The area has been clear cut or selectively cut and/or damaged except for certain trees and shrubs, called seed trees and shrubs, left standing singly or in groups. These trees and shrubs furnish seed to naturally restock the damaged area if they are healthy and present no unreasonable risk. After new trees and shrubs are established, seed trees and shrubs maybe left indefinitely. $ a. Select seed trees and shrubs if they are dominant, healthy, wind firm and seed bearing. These trees should be managed for health and vigor. $ b. Check soil pH, soil temperature, etc., and determine how much duff and soil needs to be replaced (see Category I-d). $ c. Review suggested Tasks a-g in Category I and recommend any of those treatments for Category V. Cost of V. Actual $ Appraised* $ Source of Estimate (Contractor) Attach any additional contractor information, i.e., reports, management plans, schedules, maps, etc. to this document relevant to leaving seed trees to regener- ate a lost wooded area. Category VI. Use Stump Sprouts, Root Suckers and Layered Branches to Regenerate Lost Plants Note: Stump sprout regeneration is a practical, common method to regenerate many types of plants, especially in "clear cut" wooded areas. Tactics can be employed to manage selected dominant sprouts for future tree and shrub re-establishment based on individual species requirements, tolerances, and cultural problems during re-establishment of a damaged area. $ a. Prune stump sprouts to one dominant sprout that may take 3-7 years of continual trimming depending on the species. $ b. Encourage and thin (if necessary) root suckers for future plants. $ c. Layer (if necessary) low-growing branches by covering with soil to stimulate roots and sprouts for future trees/shrubs. $ d. Review suggested Tasks a-g in Category I and recommend any of those treatments for Category VI. Cost of VI. Actual $ Appraised* $ Source of Estimate (Contractor) Attach any additional contractor information, i.e., reports, management plans, schedules, maps, etc. to this document relevant to using stump sprouts, root suckers and layered branches to regenerate lost plants. See directions for calculating Compounded Costs or Values on pages 8 and 9. 0 Copyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved. • Category VII. Employ Shelterwood Method to Regenerate Lost Plants Note: The gradual removal of dominant, live, damaged trees and shrubs in a series of partial removals which extend over the management period. You should be establishing new plants before the older, affected, damaged trees and shrubs die or are removed. The Shelterwood Method is often used in wooded areas with plants of the same size and age. This method is practical when plants have not been mortally injured, but they have incurred serious damage. Insect, disease, and cultural management must be employed to allow damaged, older plants to survive and new, healthy plants to thrive. A Plant Health Care Program may be utilized to help the damaged trees or shrubs to survive long enough to allow re-establishment of other species. $ a. Remove certain damaged trees with unreasonable risk to alloNi, crownsof remaining trees to enlarge for "wind firming" of roots and trunks of healthy trees. $ b. Remove damaged shrubs and ground cover to create space that allows desirable tree and shrub seedlings to become established. $ c. Scarify soil in open spaces to promote seed germination of selected species. d. Remove vegetation which competes with desirable species. (Selective plant removal over many years may be necessary for original stocking of lost vegetation to be recreated. $ e. Review suggested Tasks a-g in Category I and recommend any of those treatments for Category VII. Cost of VII. Actual $ Appraised* $ Source of Estimate (Contractor) Attach any additional contractor information, i.e., reports, management plans, schedules, maps, etc. to this document relevant to ennalo}'in_ Sheltenvood Methods to regenerate lost wooded areas. *See Table I to determine appraised cost. Summary of Plant Restoration and Establishment Categories Category Actual Cost ($1 Appraised Cost (S) 1. Z3, 605- Z3, 609" II. o ? III. o O IV o 0 V. 0 0 VI. © o VII. D P TOTAL Z3 6os 2f 69 S *TABLE 1. ANNUAL INTEREST RATES CO MPOUNDED I I Years 5% 6% 7% 8% 9% ! 1 1.05 1.06 1.07 1.08 1.09 2 1.10 1.12 1.14 1.17 1.19 3 1.16 1.19 1.23 1.26 130 4 122 1.26 1.31 1.36 1.41 5 1.28 134 1.40 1.47 1.54 6 1.34 1.42 150 159 1.68 7 1.41 150 1.61 1.71 1.83 8 1.48 1.59 1.72 1.85 1.99 9 1.55 1.69 1.83 2.00 2.15" 10 1.63 1.79 1.97 2.16 2.34 Multiply the actual cost to be compounded by the factor shown for the interest rate chosen and the estimated number of years for the-plant(s) to reach an equivalent size. If more years are estimated than covered by the Table, multiply the two figures in the Table whose years add to the number desired. For example, 8 years at 6% and another example, 15 years at 6%: ex.l-8=3+5 Then: 1.19x134=159 ex.2-15=5+ 10 Then 134x1.79=239 8 =1 + 7 Then: 1.06 x 1.50 = 1.59 15 = 8 + 7 Then: 150 x 159 = 239 Hence: actrurl cost x factor = appraised cost © Copyright 1997 by the Council of Tree and Landscape Appraisers and the International Society of Arboriculture. All Rights Reserved. 8 APPRAISAL OF L O C A T 10 N :55 Ridge Avenue Carlisle PA 17013 CLIENT : W. Darren Powell, Thomas, Thomas, & Hafer, LLP 305 North Front Street AS OF DATE : April 1, 2000 APPRAISER : Stephen Coyle SUPERVISORY A P P R A I S E R : William F. Rothman RSR Appraisers 3 Analysts 05SC032 A SINGLE FAMILY RESIDENCE FannieMae Uniform Residential Appraisal Report of this a to pmm& the leader/client with an accurate, and tract m of the market value ofthe Pao iy Ad&= 55 Ridge Avenue city Carlisle state PA Zip code 17013 Borrower N/A Owner of Public Record Richard E. &Kay D Milligan cmw Cumberland Lead Daairoion Deed Book 174, Page 722 Asseswes Parcel # 29-05-0429-036 Tax yew 2005 R.E. Taxes S 2,615 N ' Name Wertz Run H ' is mapReferawe 05-0429-036 Camrs Trax 119.01 O=UWA X Owner Tenant Vacant S ' Assessments I N/A FM HOA S N/A month X Fee Sim =be' Asai Pudtase Tramectim Refinence Transaction X Other describe Litigation Le ndedChernt W. Darren Poymil, trice, *owas, Thomas, & Hafer LLP Address 305 North Front Stroet Is the subject property onrmWv offered for sak orhas it beat offaW for sale in the twelve months txior to the effeeve date of this mxvisel? Yes X No Report data source(s) used. offaim oke(s)L and date(s) N/A I did did no analyze the cmftd fa sale fa the subject pudnase transaction. Explain the results of the analysis of the cmdad for sale or why the walysis was not Md"Med N/A eonuw Price S N/A Data of Contract N/A Is the PnPay seller the owner of ' record? Yes No Dat• s s PiUm Is there finer?cial assistance oar chaam sale concessiam oft or do etc. to be Paidbyanyvartyon behalf of the barrows? Ym No If Yea report the total dollar amount and describe the itevas to be paid. N/A N44a: Ram and the •(dw seldAmbeed are ra nt mmwAW Factors. Nel abberbood Cha racteristics Oae Unit Try U % Location Urban X Suburban Rural ROIWW Values X Stable Dec ' ' PRICE AGE O wu4t 90 °/. H»ih Over 75Y. X ZS-TS°% . Under 25Y. Demend/S 1 3 X Tn Bal. Over S I $ 000 24 Unit 5 % t3rovuth id X Stable Slow Time 11 1 3 mtlns X 3 6 mtM Ova 6 mtln 98 Low New muiti-Fwaav % Bawokff m The neighborhood is bounded b Route 944 to the north, • Route 34 to the cast; Route I-7 490 Hmh 70 camm .W 5 % to the south, and the Lo Road to the west. 160 Prod 15 Other % Nwobodwod Da+ayt m This is a suburban/Rural neighborhood approxupately two miles north of Carlisle and about one and one-half miles south of the cumberland-Perry County border. Considerable new home development has occurred within the neighborhood over the vast several vows and the predominant use has changes Sum farming to residential. Economically, this is a middle-class neighborhood. Marled Ca rAtiaa (mcltdma amport for the above conclusions) Because the focus of this appraisal report is valuation of the subject in a previous time period, Spring of 2000, discussing of market condition during a period five Years past is neither useful nor practical. Dimmgm Area 1.85 Shape Irregular view Average s Zoning Classification R-1 Dmai -on Suburban Residential X N Grandfathaed Use No describe Is the hW" and beat use of the subject property as ' ed or as proposed per lane and xxmficwow) the Presest use? X Yes No JfN% describe pa" drat gibe Public O ther dewrlbe OR-site Electric' X Water X Stmt Mac "M X an sari Sewn X MIASpecial Flood Hamd Area Ym X IN. FEMAFlood Z. "C" FE A # 4203670005B FEmA Dare 4/1/1982 Am the utilities and oft'-site ' wynNyamb typical for the madcet area? X Yes No NN describe Ate there adverse site ctwx1marn or external factors (casements. a-=-oadmw" envuu metal conditi laird Usca, ac)? Yes XNo If Y describe Damage to hm located along the northeast perimeter of the parcel. G D ON FO TION EXTERIOR ESCRIPTI Units X One One with Unit Caxsere Skb t3sw1 S Foundation Walls Floors # Of Stories One Full Basemerg PaKial Basement Fwaicr Walls Vin l Siding Walls Ty. X Det Att S-Det.T d Unit B.=t Area . ft. Roof Surface TrinWinish X Under Cant. Basement Finish % Gutters & Dowimputs Bath Floor pesizalstyle) Ranch Outside /bgt S I.P,. Window T Bath Wainscot Year Built 1998 E ideroe of watatim Storm Sash/fngrkted Ca Steam Nave Effective rs 6 Settlement Saeans Dn # of Cam Attic Nano Heabral FWA B Radiant Ame nities W-WS s # Driveway Surfs. Drop Stair Stairs Other Fuel F' s # Faux No. M. Floor Scuttle Cooling Central Air Co"fi Patio/Deelc Porch i cmvw No. of Cars Finished Haatal Individual Other Pool Other Aft Dec Bmh-in Dish,.W. Miaowsve Washer Other deaaibe Finished are above made contains: Rooms Bedroom Bath(s) So= Fed of Gross Li"m Area Above Grade Ad&dornl tew m (medal enemy efficient texas, etc.): None observed. Detailod description of improvement is not possible because Appraiser was not granted access to the premises. Describe the cotxhbon of the aeoaty (including needed mpmm dcteriaatim, ranovatiorw remodelim etc.). Appraiser was unable to inspect the property improvements. Therefore, only those attributes observable from a curb-side inspection and records research are considered as part of thus report. Are there env ohyaical deficiencies or adveraa conditions that affect the livability, soundness, or swicdual inn mty of the waperty? Yes X No If Yea describe None observed. Appraiser was unable to inspect the property improvements. Does the aooerty nowally canfam to the neiahbohood (functional utility, style, condition, use, crostrudim, etc )7 X Yes No If No describe Freddie Mac Form 70 Made 2005 Page 1 of 6 Fannie Mae Farm 1004 Macb 2005 RSR Appraisers S Analysts I "" N ? Uniform Residential Appraisal Report File# 05SCO32 There are N/A comparable orouaties currently offered for sale in the subject neighborhood no mm in price from $ to $ There we 93 le sales in the subject within the peg twelve months Immaim, sale voice from $ 8,000 to s 484 130. FEATURE sum a COMPARABLE SALE # 1 COMPARABLE SALE # 2 COMPARABLE SALE # 3 Address 55 Ridge Avenue Carlisl PA 17013 16 Pennway Drive Carlisle PA 17013 1140 Pine Road Carlisle, PA 17013 71 Derbyshire Drive Carlisle PA 17013 Prmimiw to Subiect sate Price o A : S APproximattly 5 Miles s 152 000 ximatel 7 Miles S 180 000 Approximately 3.5 M iles $ 227 900 Sale Price/G=as Uv. Aran S R 80 sq. R 100 . R $ 106.20 sq, R Data s CPMLS & Public Records CPMLS & Public Records CPMLS alt Public Records Verificali s Bart Carpenter 717-243-3429 Irene Wjstler 717-25 8-0025 Doris Law (717-258 -0027 VALUEADJUSTNGM DESCRIPTION DESCRIPTION - Ad'ustmant DESCRIPTION S 'ustnent DESCRIPTION - S 'ustlow, Sale or Fineneing Cancossio m = zsx Conventional None Conventional None Conventional None Date of saklrime 3/14/2000 12/7/1999 12/7/1999 Location Suburban-Rural Inferior 20,000 Similar 0 superior -30,000 Leasd"d/Fw s' le Fee Simple Fee Simple Fee Simple Fee Simple site 1.58 Acre 1.0 Acre 7.500 1.31 Acre 2,500 0.29 Acre 12,500 View Aveme Av a Average A e Desim(Style) ch Ranch Ranch Ranch ouaiity of Construction Average Average A e Average Actual Am 7 Years 8 Years 6 Years 6 Years Condition v e A e Average Avera ge above Grade Total Bdtms. Baths Total Bdrms. Baths 0 Total Bd[ms. Baths 0 Total Bdmss. Baths 0 Room Count nk. lkuJnL rile 6 3 2 0 6 3 2 0 6 3 2 0 Gross Li ' Area 2 100 . R 1,900 . R 10,000 1,800 . R 15,000 2,146 . R -2,300 Basement & Finished Roams Below Grade Yes nknown Full Unfinished None 0 Full Unfinished None 0 Unknown 0 Functional e Average Average Ave-M-90 Heatinalcooliza 'known H/P Oil FHA/CA Gas FIWCA Efficient Item nknown None None None wo-car (larame Two-car Game 0 Two-car Garage 0 Two-car Game 0 Pad?Patio0ock Porch/Dock Porch/Deck Porch/Patio None Fire lace Unknown One None None On Golf Course No No No Yes -10,000 NotAdh oust X + S 37,500 X + 17 500 + X - $ -29,900 Adjusted Sale Price ofComPIm* .. ,, Los Adj. 24.67 % Adj. 24-67% s 189,5 Net Adj. 9.72 % Grass M. 9.72% S 197,500 Net Adj. -13.08 Ya Groin '. 24.05% s 198,100 lain T 7 I X did did not researh the sale or tra afar ' of the sub'ed end l sales. If not. m My research did X not reveal am prior sales or tnmsfeas of the subied prooaty fa the thra veers prior to the effective date of this appraisal Data s CPMLS Public Records X 'd rat reveal any prior sales or transfers of the comparable sales for" year prior to the date of We of the compara MY, esearch did ble sale _ Data source(s) CPMLS Public Records the results of the rmeardn and noel of the 'or We ortransferof the sub 'ect promw and p2NNEIkle sales additional 'orsales on 3 . ITEM SUBJECT COMPARABLE SALE # I COMPARABLE SALE # 2 COMPARABLE SALE # 3 Date of Prior SaldTronfer /A /A /A /A Price of Pear Sale/rrmder Data Source(s) Effective Date of Dam Source(s) Analysis of prior sale or transfer history of the subted oroperty and comparable sales None Sammy of sales comparison approach Extraordinary adiustments were made for location for Comparable sales 1 and 3 Extraordinary adjustments were made for site for comparable sales 1, 2 and 3. Because the Appraiser was unable to inspect the improvement no adjustments were made for interior factors such as quality, condition, or confiituration. Based upon the data available the adjusted range for the subject is estimated at $189,500 to $198,100 durinit the sprint of 2 193.000 Indicated Vahro br. soles Comporis ADWINCb S 193,000 Coat Approach ardeydowd) sNot used In tone Approach (if devebped) Not Used Choose $195,000 as the estimate of value for the subject on or about April 1,2000. This appraiad is made X "ss ie, subject to completion per Plain and speciticatiens on the basis of a hypothetical condition that the improvements have been completed. to the followinig repairs or aterstiem on the basis of a hypothetical condition that the repairs or alterations have been completed, or ( 1 6ubied -- the following required inspection based on the worpordinam assumption that the condition or deficiency does not require alteration or repair. Bandon a complete visual inspection of the Interior and exterior areas of the subject properly, ddlaed scope of work, statement of asswaptiom and baiting conditions, and appraiser's certification, my (our) opinion of the n arket value, as defined, of thereat properly that is the subject of this report is Freddie Mae Form 70 March 2005 Page 2 of 6 Fannie Mae Form 1004 March 2005 Uniform RaRiAentin] Annraieol ID,-n^.4 rues U7Jl.U-lL COST APPROACH TO VALUE (not required by Famde Mae) Provide adequate mfoaradon fa the laAw/chft to replicate vas" coat fimm wd calcxilsrtiens Supwd for the ooioion of ate value (s wag a y of comoamble laW salty or other medw& for asumahm sits value) ESTMATED REPRODUCTION OR RSPLAC6IvIB U COST NEW OPmON OF srm VALUS ................................................................. . Samoa of cost data Dwenbs . Ft ...................... . " mbm from coat service Effective dap of cost dam S q. Ft ........... . = $ Canmaus on Cart " aces mkulnti eta. Ckudcamort .Ft = Total Sstimete of Cost New .................................................................. . Less cal Futtetianal Extarml Demwietim 'S( A DemyciaW Cost of hmmoveawab ........................................................ = $ -As Is- Value of Site hupmvcma ...................................................... . = S Life tMM asd VA and Y Not used INCOME APPROACH TO VAL UE (not required by Fannie Mae) EdimN Monthly Maket Rat S X Gross Rau Multiplier = s Not Used Indicated Vahte by hmcome Apuoech Sumsmav of hrcome Amsosch (mchxhm amoort for market rata ad ORM) PROJECT INFORMATION FOR PUDs a ' We Is din devdopa/MQlw in annul of the HomommeW Association MOA)? Yes No Unit type(s) AWdted Provide due followim ffdmubm for PUDs ONLY if *a &vaopWWdda ism caurol of the MA and the suNca proMW a an atta&W dwdll wit Leal Name ofpmea Taal number of dtatm Total number of wits Total number of mots sold Total m®ba of wits rented Total mmmba of units for We Dam SQUV*3) " Was the moma aerated the ca emon of =sum s into a PUD? Yes No If Y date of camecsicn Does the wojea cow= any units? Yes No Dam s Are dte tsti common ekmaft and reaaim facilities cowActa? Yes No If No describe stun, of lotion Am the woman ck= is kaaod to or ft Hamwwners' Association? Yes No If Ym describe the retie) tams and options Daa m c mmm elaaente and reaabo al facilities. Fmddie Mac Farm 70 Mach 2005 Pap 3 of 6 Fauna Mae Form 1004 Mamcb 2005 Uniform Residential Appraisal Report File# OSSCO32 This report form is designed to report an appraisal of a one-unit property or a one-unit property with an accessory unit; including a unit in a planned unit development (PUD). This report form is not designed to report an appraisal of a manufactured home or a unit in a condominium or cooperative project. This appraisal report is subject to the following scope of work, intended use, intended user, definition of market value, statement of assumptions and limiting conditions, and certifications. Modifications, additions, or deletions to the intended use, intended user, definition of market value, or assumptions and limiting conditions are not permitted. The appraiser may expand the scope of work to include any additional research or analysis necessary based on the complexity of this appraisal assignment. Modifications or deletions to the certifications are also not permitted. However, additional certifications that do not constitute material alterations to this appraisal report, such as those required by law or those related to the appraiser's continuing education or membership in an appraisal organization, are permitted. SCOPE OF WORK: The scope of work for this appraisal is defined by the complexity of this appraisal assignment and the reporting requirements of this appraisal report form, including the following definition of market value, statement of assumptions and limiting conditions, and certifications. The appraiser must, at a minimum: (1) perform a complete visual inspection of the interior and exterior areas of the subject property, (2) inspect the neighborhood, (3) inspect each of the comparable sales from at least the street, (4) research, verify, and analyze data from reliable public and/or private sources, and (5) report his or her analysis, opinions, and conclusions in this appraisal report. INTENDED USE: The intended use of this appraisal report is for the lender/client to evaluate the property that is the subject of this appraisal for a mortgage finance transaction. INTENDED USER The intended user of this appraisal report is the lender/client. DEFINITION OF MARKET VALU The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing oftitle from seller to buyer under conditions whereby: (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and each acting in what he or she considers his or her own best interest; (3) a reasonable time is allowed for exposure in the open market; (4) payment is made in terms of cash in U. S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions* granted by anyone associated with the sale. *Adjustments to the comparables must be made for special or creative financing or sales concessions. No adjustments are necessary for those costs which are normally paid by sellers as a result of tradition or law in a market area; these costs are readily identifiable since the seller pays these costs in virtually all sales transactions. Special or creative financing adjustments can be made to the comparable property by comparisons to financing terms offered by a third party institutional lender that is not already involved in the property or transaction. Any adjustment should not be calculated on a mechanical dollar for dollar cost of the financing or concession but the dollar amount of any adjustment should approximate the market's reaction to the financing or concessions based on the appraiser's judgment. STATEMENT OF ASSUMPTIONS AND LDM NG CONDITIONS: The appraiser's certification in this report is subject to the following assumptions and limiting conditions: 1. The appraiser will not be responsible for matters of a legal nature that affect either the property being appraised or the title to it, except for information that he or she became aware of during the research involved in performing this appraisal. The appraiser assumes that the title is good and marketable and will not render any opinions about the title. 2. The appraiser has provided a sketch in this appraisal report to show the approximate dimensions of the improvements. The sketch is included only to assist the reader in visualizing the property and understanding the appraiser's determination of its size. 3. The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in this appraisal report whether any portion ofthe subject site is located in an identified Special Flood Hazard Area. Because the appraiser is not a surveyor, he or she makes no guarantees, express or implied, regarding this determination. 4. The appraiser will not give testimony or appear in court because he or she made an appraisal of the property in question, unless specific arrangements to do so have been made beforehand, or as otherwise required by law. 5. The appraiser has noted in this appraisal report any adverse conditions (such as needed repairs, deterioration, the presence of hazardous wastes, toxic substances, etc.) observed during the inspection of the subject property or that he or she became aware of during the research involved in performing this appraisal. Unless otherwise stated in this appraisal report, the appraiser has no knowledge of any hidden or unapparent physical deficiencies or adverse conditions of the property (such as, but not limited to, needed repairs, deterioration, the presence of hazardous wastes, toxic substances, adverse environmental conditions, etc.) that would make the property less valuable, and has assumed that there are no such conditions and makes no guarantees or warranties, express or implied. The appraiser will not be responsible for any such conditions that do exist or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is not an expert in the field of environmental hazards, this appraisal report must not be considered as an environmental assessment ofthe property. 6. The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory completion, repairs, or alterations on the assumption that the completion, repairs, or alterations of the subject property will be performed in a professional manner. Freddie Mac Foam 70 March 2005 Pap 4 of 6 Fannie Mae Form 1004 March 2005 Uniform Residential Appraisal Report Fae# 05SCO32 APPRAISER'S CERTIFICATION: The Appraiser cetifies and agrees that: 1. I have, at a minimum, developed and reported this appraisal in accordance with the scope of work requirements stated in this appraisal report. 2. I performed a complete visual inspection of the interior and exterior areas of the subject property. I reported the condition ofthe improvements in factual, specific terms. I identified and reported the physical deficiencies that could affect the livability, soundness, or structural integrity of the property. 3.1 performed this appraisal in accordance with the requirements ofthe Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place at the time this appraisal report was prepared. 4. I developed my opinion of the market value of the real property that is the subject of this report based on the sales comparison approach to value. I have adequate comparable market data to develop a reliable sales comparison approach for this appraisal assignment. I further certify that I considered the cost and income approaches to value but did not develop them, unless otherwise indicated in this report. 5. I researched, verified, analyzed, and reported on any current agreement for sale for the subject property, any offering for sale ofthe subject property in the twelve months prior to the effective date ofthis appraisal, and the prior sales ofthe subject. property for a minimum of three years prior to the effective date of this appraisal, unless otherwise indicated in this report. 6. I researched, verified, analyzed, and reported on the prior sales of the comparable sales for a minimum of one year prior to the date of We of the comparable sale, unless otherwise indicated in this report. 7. I selected and used comparable sales that are locationally, physically, and functionally the most similar to the subject property. 8. I have not used comparable sales that were the result of combining a land sale with the contract purchase price of a home that has been built or will be built on the land. 9. I have reported adjustments to the comparable sales that reflect the market's reaction to the differences between the subject property and the comparable sales. 10. I verified, from a disinterested source, all information in this report that was provided by parties who have a financial interest in the sale or financing of the subject property. 11. I have knowledge and experience in appraising this type ofproperty in this market area. 12. I am aware o4 and have access to, the necessary and appropriate public and private data sources, such as multiple listing services, tax assessment records, public land records and other such data sources for the area in which the property is located. 13.1 obtained the information, estimates, and opinions furnished by other parties and expressed in this appraisal report from reliable sources that I believe to be true and correct. 14. I have taken into consideration the factors that have an impact on value with respect to the subject neighborhood, subject property, and the proximity of the subject property to adverse influences in the development of my opinion of market value. I have noted in this appraisal report any adverse conditions (such as, but not limited to, needed repairs, deterioration, the presence of hazardous wastes, tonic substances, adverse environmental conditions, etc.) observed during the inspection of the subject property or that I became aware of during the research involved in performing this appraisal. I have considered these adverse conditions in my analysis ofthe property value, and have reported on the effect of the conditions on the value and marketability ofthe subject property. 15. I have not knowingly withheld any significant information from this appraisal report and, to the best of my knowledge, all statements and information in this appraisal report are true and correct. 16.1 stated in this appraisal report my own personal, unbiased, and professional analysis, opinions, and conclusions, which are subject only to the assumptions and limiting conditions in this appraisal report. 17. I have no present or prospective interest in the property that is the subject of this report, and I have no present or prospective personal interest or bias with respect to the participants in the transaction. I did not base, either partially or completely, my analysis and/or opinion of market value in this appraisal report on the race, color, religion, sex, age, marital status, handicap, familial status, or national origin of either the prospective owners or occupants of the subject property or of the present owners or occupants of the properties in the vicinity of the subject property or on any other basis prohibited by law. 18. My employment and/or compensation for performing this appraisal or any future or anticipated appraisals was not conditioned on any agreement or understanding, written or otherwise, that I would report (or present analysis supporting) a predetermined specific value, a predetermined minimum value, a range or direction in value, a value that favors the cause of any party, or the attainment of a specific result or occurrence of a specific subsequent event (such as approval of a pending mortgage loan application). 19. I personally prepared all conclusions and opinions about the real estate that were set forth in this appraisal report. If I relied on significant real property appraisal assistance from any individual or individuals in the per6ormance ofthis appraisal or the preparation of this appraisal report, I have named such individual(s) and disclosed the specific tasks performed in this appraisal report. I certify that any individual so named is qualified to perform the tasks. I have not authorized anyone to make a change to any item in this appraisal report; therefore, any change made to this appraisal is unauthorized and I will take no responsibility for it. 20. I identified the lender/client in this appraisal report who is the individual, organization, or agent for the organization that ordered and will receive this appraisal report. Freddie Mac Foam 70 March 2005 Page 5 of6 Faume Mae Form 1004 Mach 2005 Uniform Residential Appraisal Report File # 05SCO32 21. The lender/client may disclose or distribute this appraisal report to: the borrower; another lender at the request of the borrower; the mortgagee or its successors and assigns; mortgage insurers; government sponsored enterprises; other secondary market participants; data collection or reporting services; professional appraisal organizations; any department, agency, or instrumentality of the United States; and any state, the District of Columbia, or other jurisdictions; without having to obtain the appraiser's or supervisory appraiser's (if applicable) consent. Such consent must be obtained before this appraisal report may be disclosed or distributed to any other party (including, but not limited to, the public through advertising, public relations, news, sales, or other media). 22. I am aware that any disclosure or distribution of this appraisal report by me or the lender/client may be subject to certain laws and regulations. Further, I am also subject to the provisions of the Uniform Standards of Professional Appraisal Practice that pertain to disclosure or distribution by me. 23. The borrower, another lender at the request of the borrower, the mortgagee or its successors and assigns, mortgage insurers, government sponsored enterprises, and other secondary market participants may rely on this appraisal report as part of any mortgage finance transaction that involves any one or more of these parties. 24. If this appraisal report was transmitted as an "electronic record" containing my "electronic signature," as those terms are defined in applicable federal and/or state laws (excluding audio and video recordings), or a facsimile transmission ofthis appraisal report containing a copy or representation of my signature, the appraisal report shall be as effective, enforceable and valid as if a paper version of this appraisal report were delivered containing my original hand written signature. 25. Any intentional or negligent misrepresentation(s) contained in this appraisal report may result in civil liability and/or criminal penalties including, but not limited to, fine or imprisonment or both under the provisions of Title 18, United States Code, Section 1001, et seq., or similar state laws. SUPERVISORY APPRAISER'S CERTIFICATION: The Supervisory Appraiser certifies and agrees that: 1. I directly supervised the appraiser for this appraisal assignment, have read the appraisal report, and agree with the appraiser's analysis, opinions, statements, conclusions, and the appraiser's certification. 2. I accept full responsibility for the contents of this appraisal report including, but not limited to, the appraiser's analysis, opinions, statements, conclusions, and the appraiser's certification. 3. The appraiser identified in this appraisal report is either a sub-contractor or an employee of the supervisory appraiser (or the appraisal firm), is qualified to perform this appraisal, and is acceptable to perform this appraisal under the applicable state law. 4. This appraisal report complies with the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place at the time this appraisal report was prepared. 5. If this appraisal report was transmitted as an "electronic record" containing my "electronic signature," as those terms are defined in applicable federal and/or state laws (excluding audio and video recordings), or a facsimile transmission of this appraisal report containing a copy or representation of my signature, the appraisal report shall be as effective, enforceable and valid as if a paper version of this appraisal report were delivered containing my original hand written signature. APPRAISER Signature Name Stephen Cov company Name RSR Appraisers & Analysts company Address 3 Lemoyne Drive, Suite 100 Lemoyne PA 17043 Telephone Number 717-763-1212 Email Address Date of Sipnatme and Report November 25, 2005 EB6xtiw Date of Appraisal Aord 1, 2000 State Certification # Assistant to Certified Gen. Appraiser or State License # or Other (describe) State PA Expiration Date of Certification or License ADDRESS OF PROPERTY APPRAISED 55 Ridge Avenue Carlisle PA 17013 APPRAISED VALUE OF SUBJECT PROPERTY $ 193,000 LENDER/CLIENT Name W. Darren Powell, Esquire company Name Thomas, Thomas, & Hafer, LLP Company Address 305 North Front Street Harrisburg, PA 17101 Email Address Y,01AAISER (ONLY IF REQUIRED) Name William F. RAPM company Name RSR Appraisers & Analysts company Address 3 Lemoyne Drive, Suite 100 Lemoyne PA 17043 Telephone Number 717-763-1212 Email Address Date ofsipoattne November 25, 2005 state certification # GA00030L or State License # Stare PA Expiration Date of Certification or license 06/30/2007 SUBJECTPROPERTY X 8 Did not inspect subject property Did inspect exterior of subject property fiom street Daze of Iospecoon October 5, 2005 (curb-side) Did inspect interior and wocrior of subject property Date of luspertion COMPARABLE SALES Did not inspect aderior of comparable sales from street X Did inspect exteriorof comparable sales from smxt Date of inspection November 21, 2005 Freddie Mac Form 70 March 2005 Page 6 of 6 Fannie Mae Form 1004 Malt 2005 SUBJECT PHOTOGRAPH ADDENDUM OsscO32 NtA Zip Code 17,013 55 Rid a Avenue Cumberland State P. P Address County t t.v ONT OF BJEC'T PROPERTY REAR OF gUBJEC'T PROPERTY STREET SCENE ftSR Appraisers & AnatYsts ADDITIONAL PHOTOGRAPH ADDENDUM OSSCO32 Borrower N/A Property Address 55 Ridge Avenue City Carlisle County Cumberland State PA Zip Code 17013 Lender W Darren Powel Esquire; tomas, Thomas, & Hafer LLP Area of Damage 1 Area of Damage 2 RSR Appraisers 6 Analysts Detailed Results f or Parcel 29-05-0429-036. in f DbttidNo 29 Parcel ID 29-05-0429-036. Mapswft HovpNo 55 Direction Street RIDGE AVENUE Ownerl MILLIGAN, RICHARD E & KAY D Owaer2 PropT'pe R PropDesc UvArea 2100 Curl,andVal 42900 CurlmpVal 130570 CurTotVal 173470 CurPrefVal Acreage 1.58 C[Gra tat Ta=Ei 1 SaleAmt 32000 SakMo 4 SakDa 2 SakCe 19 SakYr 98 DcedBkPage 00174-00722 Ye"It 1998 HF File Date 10/25/2004 IE Approval Status A ie 2004 Tax Assessment Database http://taxdb.ccpa.nettdetails.asp?id=29-05-0429-036.&dbselect=l 10/10/2005 I - Y nI e j ?r5? 414 r 3, 3 r< S? pp " : .. . $' r 6? s A.:t V i rf !t: , a •qt,. , ' •, sl. {? -t tiled. .,•,? . y.x,. fc. ?. y a u3 , ' •r + d ? r C.,? ?r+ yam. .. M b . z?, ie:Ju: Subject: 55 Ridge Avenue, Carlisle, PA 17013 Tax ID Number: 25-05-0439-036 , 7 a I?u.c,.c a9-o5 -oy?q_as? GLER :"^:'4D2 a OF DEEDS b!f t:RLNtID COUNTY - P. '90 APR Z AM 10 05 I.g D= r L Made the day of 1 in the year Nineteen hundred and ninety-ei8ht (1998) Belwxn KOId.AS AND COB'POYOUWS, a Peough=b Generd PuMership comprised of William C. Kokes and WMbm C. Conwooloa, hadnaea tofened to as GRANTOR AND RICHARD & i1K.I.IGAN and KAY D. MULLIGAN, haneiafter refined to as GRANTERS, Wknessetb, that is cooriderstim dIMTY-TWO THOUBAND DOLLARS ($3$000.00? in hand paid, the no* whereof is hesaby aclasowiedged, the said Gmator does hereby Smut and convey to the said Grantees, their heirs and assigns, ALLTRAT CMrAIN piece or parcel of lied with bttt7d'itgs mad huprovemoats thereon erected, ifsuy, Aunts, is Watt Rua HeisW, North Middleton Township. Cambwlmd County, Commonwodth of Penosylvaela bounded amd dacrkted in accofdanoo wkh Find S"VIB oar Phi for Phan No. II for "Wats Rhm Heights," recorded oar October 16.19%, is Chonberhed County Pin Book 73, Page 47, a ARovAL to wt xZG1NNMG at a point, acid point bdog located on due nodbae d&-oPway line of Ridge Avame at the co®ssa foal pn*oay coma of Lot 1187 and Lot 685 of Warts Rhtm Hdghte, Phase 2; Thanes ahts!g Lot lis7 and Lot /86 North 37 deg!sse IS mantes 00 seconds East, a distaos of264.68 Ant to a paint at Lot /84 of Warts Rm H*W. Phase 2; Thamoo Woes Lot u184 South So dosses 55 siRm 00 saonds Feat, a dWeos 118.03 hat to a pai ; Them along the arms Souk 49 daS 15 vibes 00 seconds FAA, a diomm of 180.61 hat to a point at bed saw or late ofKallm std Codopodse. Ksssisoot. Section VH; 7'hmco along laud now or hue of Kausa said Costopual s, ICiogabrook. Soodon VII South 20 desreea 32 ndmrtes 03 seconds West, a didence of96.92 lid to a point oar the modbm Aghl-okay he ofltidge Avemm; 9lmoe along the mod berm rWa-af-my lee of Rids Avenue the AADVASS 3 coarser South 79 degrees 31 minutes 27 seconds West, a distance of 68.49 feet to a point; i0ax 174 ME 722 on the are of a curve, curving to the right having a radius of 325.00 feet, an arc length of 270.72 feat and a ceotrai angle of 47 degrees 43 minutes 34 ascends to a point; North 52 degrees 45 minutes 00 socoods West, a distance of 39.57 feet to a point, the point of BICGENMG. SAID LOT CONTAINS 68,766.51 square feet or 1.579 sera. SAID LOT is subject to a portion ofa 20 feet storm drainage easemeat located along its northern property doe and an 8o feet wide storm pipe excavation easement as located and shown on the I=[ Subdivision Phu of Warts: Rua Heights, Phase 2. BEING Lot M 85 of** Paul Subdividon Phu of Wertz Rim Heights, Caddo, Cumberland County, Pennsylvania, recorded is Plan Book 73, Pegs 47, on October 16,19%. BEING part ofthe I ices which Norman J DoMW and Nancy J. Dd§MM his w9 Wiill'iam Q 13'ipp=md and Margaret J. Hppmsted, his wife, and Anthony L Lepore and Devadioa S. Lapore, his vdk by their Dead doted Ann" S. 1993, and reoosded PAWK 5, 1993, in the Office ofthe Recorder ofDeads in and for Con" nd County in Deed Book'1?- Volume 36. Page 438. granted and convoyed onto KoWs and Costopoalor, a Pennaylvanu General Partnership, Granters herein. UNDER AND SUBJECT to Dederstion of Building and Use Restrictions for the 11mal Subdivision Phm of Waltz Run Heights, dated December 16, 1993, sad recorded in Miscellaneous Book 463, Page 1178. And the said Grantor does hereby warrant specially the property hereby conveyed. IN WITNESS WHEREOF, the undersigned, being all of the general partners of the said Grantor have heramto set their hands and scant the day and year first above written. Ca?LL 20 V, cn,wu wy- WRLMM C. COSTOPOULOS (SEAL) WaLTAM Q KOLLAS eoaK 174 PAGt 723 COMMONWEALTH OF PENNSYLVANIA . SS. COUNTY OF CUMBERLAND Om dit, ds /S dsy ct ,199i, befate mq, a Notary Public. ply Weered WHJJALN C. CWRIOPOULOS and SYHJJAM C. KOLLAS, WW a . o mh dgsd dot dray ate dw gaabed pauftm ofKOLIAS AND COSTUFOULOS, ad that they as such smenlpartom behig totboaind so to do execoted do fwgpieg imtiommt fir the puipoaad aincontained. IN W[I?ms WHEREOF, Y have homwo set my bad ad offiool seal ad rV Y7 SO Pablo . ?? Alohry ?,x? I hereby certify that the precise residence and complete post office address of the witbin Cnatees is 391 Za kev> emus T'_ rrme P.pe?YP? /Pd93 Ammy _ C Bar Ora em boas 174 race 724 S. N 888i588d'88itkio w venue, Canis le, PA 17013 entiai Subject - 55 Ridge A R 1, Suburban Res Zone. ?},tY lVlr7?g A ; 1v . F'mm CONSERVATION (C) rrn»n ruaa as?ans noaw FIRM 2ONL c I..I1. J FLOAT NISMAri a?rc MAP mvFnaeEr tr NORTH MfDj)rl MINI: - PE]gM I.VANIA ca:mncei•ruru C4UNYY i Subject PANEL S OF 1C .. I?I f CsrEEfNIl1•"An 1 MwCa i!f)V[ F6 ? 4?D367 tNSCt$ Ts EFFFCtIEE GIL APM t. 1202 _ rrrmll'ne;rp??)Irasaln .?w.' 'n Y •-- n•. a i.:.x:... r ? w>•x ss ie.w e• SUBJECT: 55 Ridge Avenue, Carlisle, PA FIRM: 4203670005B DATE: 04/01/1982 ZONE: licit COMPARABLES PHOTOGRAPH ADDENDUM 05SC032 91 Borrower N/A _ Property Address 55 Ridge Avenue City Carlisle County Cumberland State PA Zip Code 17013 Lender W. Darren Powel Esquire; thmas, Thomas, 8t Hafer LLP COMPARABLE SALE # 1 16 Permway Drive Carlisle, PA 17013 Date of Sale : 3/14/2000 Sale Price 152,000 Sq. Ft. 1,900 S / Sq. Ft. 80 COMPARABLE SALE # 2 1140 Pine Road Carlisle, PA 17013 Date of Sale : 1217/1999 Sale Price 180,000 Sq. Ft. 1,800 S / Sq. Ft. 100 COMPARABLE SALE # 3 71 Derbyshire Drive Carlisle, PA 17013 Date of Sale : 12/7/1999 Sale Price 227,900 Sq. Ft. : 2,146 S / Sq. Ft. 106.20 RSR Appraisers & Arraiysts Comparable Sales Area Map 05SC031 APPRAISAL OF LOCATION :55 Ridge Avenue Carlisle PA 17013 CLIENT : W. Dairen Powell, Thomas, Thomas & Hafer, LLP 305 North Front Street AS OF DATE :March 30, 2000 APPRAISER : Stephen Coyle SUPERVISORY APPRAISER :WilliamF.ro&maa RSR Appraisers & Analysts A SINGLE FAMILY RESIDENCE Uniform Residential Appraisal Report ?a?'iniPMaP File# 05SC031 in of this riammy appraisal report is to provide the leader/client with an accunue, and adequately supported, opinion of the market value of the subject ppoper!y. Prwerty Add= 55 Ridge Avenue city Carlisle state PA zip code 17013 Borrows N/A Owner of Public Record Richard E &Kay D. Milligan courtty Cumberland Deed Book 174, Page 722 Assessor's parcel # 29-05-0429-036 Tax year 2005 RE. Taxes $ 2,615 Nsae Wang Run Hei ghts Zvia ReFaerue 05-0429-036 Census Tract 119.01 X owner 11 Tenant vacant s Assesstaeuts$ N/A PUD HOA$ N/A ear 1 1. month X Fee Sim le I.easelnold Other describe Purchase Tratuection Refinance Tr&asaction X Other describe Litigation i LendedClient W. Darren Powell, u" Thomas Thomas & Hater LLP Address 305 North Front Street { Is the subject property currently offered for sale or has it been offered for sale in the twelve awnths prior to the effective data of this appraisal? Yes X No Report data source(s) use& offer mtprice(s). and date(s) N/A I did did not amlytt the co at act for sale for the subject purchase transaction. Explain tlto results of the analysis of the contract for sale or why the analysis was not ?erformcd N/A Contract Price$ N/A Date of Contract N/A Is the property seller the owner of public record? Yes No Data s Is there mt fma wW assistance pan clarstes. We concessions. gift or do ent assistance, etc. to be 'd b any party on behalf of the borrower? Yes No KYm report the total dollar amount and describe the items to be paid. N/A i Nete: Ram and the racial empositim of the nobthborbood arc not s ratsal factors. Nek dd hood Characteristi a One-Unit Hou sing Trends One-un Headag Prow Load Use % Locatiprn Urban X Suburban Rwal values X lmseas Stable Decl' ' PRICE AGE One-Unit 90 % Built-Up Over 75% X 25-75% Under 25% Su 1 S e X In Balance Over Supply $ 000 2-4 Unit 5 % Growth Rid X Stable Slow Marke ' Time Under 3 mtlns X 3-6 U. Over 6 mths 98 Low New Multi-F % Newbothood 'es The nei hborhood is bounded b Route 944 to the north; Route 34 to the cast; Route I-7 490 Hi 70 Coranmcial 5 % to the south and the Longs Gap Road to the west 160 Fred. 15 10th- % NeiWhborhopdDescription This is a suburban/Rural neighborhood appro*1nately two miles north of Carlisle and about one and one-half miles south of the cumberland Perry County border Considerable new home development has occurred within the neighborhood over the vast several years and the predominant use has changes from farming to residential Economically, this is a middle-class neighborhood Market conditions (includim support for the above conclusions) Because the focus of this appraisal report is valuation of the subject in a previous time period, Spring of 2000, discussing of market conditions during a period five ears ast is neither useful nor facticttl. ions; Area 1.85 shape Irregular view Average ,,I s fw Classification R-1 Zonin Dews lion Suburban Residential lieroa X 11-w lxoncanf i,, GranndfatheredUse No nl describe Is the Wwst and best use of the subject property as improved or as proposed per lens andspecifications) the present use? X Yes No If No describe s t OWL- Public Other (describe) Ot her describe Olrsitelra rovewents-' Public P rivat e Electricity X water X Sucet Macadam X Goa Sari Saw" X Alley FEMAS ' Flood Hazard Am Yes X No FEMAF1oodZone "C" FEMAiv # 4203670005B FEMAivia Date 4/1/1982 Are the utilities end off-site unwyanents icai for the market area? X Yes No If No describe Are there any adverse site conditions or external factors (easements, encroachments, environmental conditions, land uses etc. )7 Yes X xo if Y describe None apparent from curb-side inspection - G D ON FOUND TIO EXTERIORDESCRIMON ruateriaWrn 'lion INTERIOR inateriabileonditlen units X One One with Unit Concrete Slab Crawl S Foundation Wails Floors # of Stories One Full Basement Partial Baseme t Exterior walls Vinyl Siding Walls T X Del Alt S-Det./End Unit Baseman Area s q. ft. Roof Surface TriniNinish X Urrder Corot Basernent Finish % Gutters & Downspouts Bath Floor Doing (style) Ranch Outside EqUait Sum Pum Wundow T Yea Built 1998 Evidence of ldestation Storm Sashtlasulated Car Sto N. i effective Age rs 6 Dam Sealemera Screens Drivewa # of Cars Attic None Heating I FWA HW B Radiant Amenities WoodStov s # Drivewa Surface i Dm Stair Stairs Otlxr Fuel F' lac s # Fence 1 6. No. of Cars Floor Scunle Cool' Cerdral Air Conditionin Patio/Deek Porch I carDort No. of Cars Finished Heated Individual Other Pool Other Att Del Built-in liancea Re¢i an Dishwasher Dis Microwave 1w-4-/1Other describe Finished are above grade contitnts• Rooms Bedrooms Bath(s) Square Feet of Gross Uyum Area Above Grade Additional features (special enew efLciaa items, ate.): None observed Detailed description of improvement is not possible because Appraiser was not granted access m the premises Describe the condition of the tanpeRV (includjnt needed repaim deterioration, renovations, remodelinz etc.). Appraiser was unable to inspect the property improvements Therefore only those attributes observable from a curb-side inspection and records research are considered as part of this report. Are then any P-hnLal deficiencies or adverse conditions that affed the livability, soundness or structural jnteakity of the property? Yes X No If Yes. describe :i None observed Appraiser was unable to inspect the property improvements - Does the property wmativ conform to the neighborhood (functional utility, style, condition, use construction. etc W X Yes No RNo, describe Freddie Mac Form 70 Markin 2005 RSR Appraisers $ Analysts Page 1 of6 Fannie Mae Form 1004 March 2005 -Pow Ered M• a a . e 6 10 Uniform Residential Appraisal Report He# 05SC031 There we N/A comoanble oopectim currently offered for sale in the subieot neighborhood ranging in price from S to S - - i There ace 93 le sales in the suNect boy hood within the pot twelve months rarwa in s ale rice from $ 8,000 to $ 484 130. FEATURE SUBJECT COMPARABLE SALE # 1 COMPARABLE SALE # 2 COMPARABLE SALE # 3 Address 55 Ridge Avenue Carlisle, PA 17013 16 Pennway Drive Carlisle PA 17013 1140 Pine Road Carlisle PA 17013 71 Derbyshire Drive Carlisl PA 17013 Pradmity to gub ect Approximately 5 Mile s A roxituatel 7 Miles A roxjmatel 3.5 Miles Sale Prig S 152,000 S 180,000 : S 227,900 Sale PrimOoss Liv. Area a so. S $ 80 N. It S 100 so. IL $ 106.20 . It. Data Source(s) CPMLS & Public Records CPMLS & Public Records CPMLS & Public Records Verification Source(s) Bart Cal-Denter 717- 243-3429 Irene Wistler 717-25 8-0025 Doris Law 717-258-0027 VALUE ADJUST1ARM- DESCRIPTION DESCRIPTION + - S Ad'umrnE DESCRIPTION + - $ Ad ushment DESCRIPTION - S 'ustment j sale as Financing Concession Conventional None Conventional None Conventional None Date of Sale/Time 3/14/2000 12/7/1999 1217/1999 Location Suburban-Rural Inferior 20,000 : Similar 0 Su riot -30 000 i LeaseholMee s' le Fee Simple Fee Sim le Fee Simple Fee simple Site 1.58 Acre 1.0 Acre 10,000 1.31 Acre 5.000 0.29 Acre 15,000 s view Desim s le Average Ranch Average Ranch Average Ranch Average Ranch of Corntruction a Average Average Average Actual Age 7 Years 8 Years 6 Years 6 Years Condition a Average Re Average .A Above Grade Total Edges. Baths Total Bdma. Baths 0 Total Bdrms. Baths 0 Total Bdrms. Baths 0 Room Count nk Unk nk. 6 ,3 l 2 0 6 3 2 0 6 3 2 0 Gross Living Area 2,100 . f L 1,900 . It. 10,000 1,800 . A. 15,000 2,146 sq, fL -2 300 Basement & Finished Rooms Below Grade _ Yes nknown Full Unfinished None 0 Full Unfinished None 0 Unknown 0 Functional Utility ve a Average Average Average Heatinalcooling nknown WP Oil FHA/CA Gas FHA/CA Boom Efficientltems to, None None Non oargadcwmd wo-car Game Two-car Garage 0 Two-car Game 0 Two-car Garage 0 Porch/Patio(Deck Porch/Deck Porch/Deck Porch/Patio None Fireplace Unknown One None None On Golf Course No No No Yes -10,000 Net Ad'u mment oW X + - s 40 000 X + s 20 000 "X- s -27 300 Adjusted Sale Price of les Net Adj. 26.32% Gross Adj. 26.32 % s 192,000 Net Adj. 11.11 % Gross Ad'. 11.11 % Is 200 000 Net Adj. -11.99% Gross Ad. 25.14% s 200,600 and comparable sales. Hoot, explain I X did did not research the sale or transfer history of the surb'ect proper MYresearch did X 'd not reveal aav prior sates or um fns of the subiect pro peRy for the three years prior to the effective date of this appraisal Data EMM Qs CPMLS Public Records mm research did x Trot reveal am prior sales or transfers of the comparable sales for the year prior to the date of sale of the comparable sale. i Date nouns) CPMLS Public Records Report the results of the research and anal is of pia or age or transfer history of the sub ject o and comparable sales out additional for sales on oam 3 . rrsm SUBJECT COMPARABLE SALE # 1 COMPARABLE SALE # 2 COMPARABLE SALE # 3 Date of Price Sale/Transfer i /A N/A N/A /A , Price of prior Solarrarnfer i Data Source(s) Effective Date of Date Source(s) Analysis of prior We or hrnfer history of the subject pro perty and comparable sales None. Summary of Sales Comparison Approach Extraordinary adiustments were made for location for Comparable sales 1 and 3. Extraordinary adiustments won made • , for site for comparable sales 1 2 and 3 Because the Appraiser was tenable to inspect the improvement, no adjustments were made for interior factors such as -1 quality, condition, or configuration Based upon the data available the adiusted range for the subject is estimated at $192,000 to $200,600 during the spring of 200 195,000 radicated Value by Saks Companion Auoroach S 19S,000 Cost Anorvach fir developed) sNot used Income Approach of developed) Not Used Choose S195,000 as the estimate of value for the subject on or about March 30, 2000. This appryisd Wmade X "as is", subject to completion per plans and specifications on the basis of a hypothetical condition that the improvements have been hated, Oubjeat to the following repairs or alteration of the basis of a hypothetical condition that the repairs or alterations have been completed, or '.ct t the follownut ved impaction ham ort the cdcaor limes assumption that the condition or deficiency does not require alteration or repair Based an a complete visual inspection of One interior and exterior arras of the subject property, defined scope of work, statement of assumptions and limiting condlUons, and appraiser's certification, my (our) opinion of the market value, as defined, of the real property that is the subject of this report is 1 195-000 - f March 30, 2000 -which 1% th, h-Mefived,lCafib Freddie Mac Form 70 March 2005 Page 2 of 6 Fannie Mae Form 1004 March 2005 14 Uniform Residential Appraisal Report File# 05SC031 COST APPROACH TO VALUE (not required by Famde Mae) Provide admuate infamatim for the lender/client to replicate Your cost fimm and calculations. Support for the opinion of site value (summary of comemble lend sales or other methods for estimetine site value) ESTIMATW REPRODUCTION OR REPLACEMENT CAST NEW OPINION OF SITE VALUE ......................................................... ......... = E Source of cost data Dwelling S q. Ft (it = S from cost service Effective date of cost data S q. Ft. .......... ......... = $ Commeus on Cost Appmech (arm llivinit area calculations iati etc. Gam C rt S q. Ft .............. ......... = S Total Estimate of CostrNew .......................................................... ......... Less Yh 'cal Functional fixtemal 1 Depreciation $ e eciated Cost of Ion rovements ............................................... ......... = $ "As Is" Value of Site Improvements .............................................. ......... = $ Esti uded Ranauum Eoonamic Life and VA aril Yeats CA ED VAI BY COST APPROACH ........... ................ = S Not used INCOME APPROACH TO VAL UE (not required by Fannie Mae) Estimated Moldbly Market Rent S X Gross Batt multiplier = s Not Used Indicated Value by ln mw Approach Summary of hmme Ampach (ittcuding support for market rem and GRM) PROJECT INFORMATION FOR PUDs Of a livable s Is the developer/builder in control of the Homeowners' Association (HOA)7 Yes No Unit type(s) Detarlted Attached Provide the following infarmahm for PUDs ONLY if the developer/builder ism control of the HOA and the subiect property is an attached dwelling unit. Legal Name of troiea Total rmmber of p ha= Total number of units Total number of units sold Total number of units rented Total number of units for sale Data Source(s) Was the proiect created boy the conversion of buil ' s into a PUD? Yes No If Yes date of..i. Does the project cauam an multi-dwelfirm units? Yes No Data So s Am the uruts. camnon clemaft and recreation facilities complete? Yes No If No describe status of completion. Are the common elemmu leased to or by the Homeoymers' Association? Yes No If Yes, describe the rental terms and options. Describe common elements and recreational facilities. Freddie Mae Form 70 March 2005 Page 3 of 6 Fatntie Mae Form 1004 March 2005 r A Uniform Residential Appraisal Report Fi?e# 05SC031 This report form is designed to report an appraisal of a one-unit property or a one-unit property with an accessory unit; including a unit in a planned unit development (PUD). This report form is not designed to report an appraisal of a manufactured home or a unit in a condominium or cooperative project. This appraisal report is subject to the following scope of work, intended use, intended user, definition of market value, statement of assumptions and limiting conditions, and certifications. Modifications, additions, or deletions to the intended use, intended user, definition of market value, or assumptions and limiting conditions are not permitted. The appraiser may expand the scope of work to include any additional research or analysis necessary based on the complexity of this appraisal assignment. Modifications or deletions to the certifications are also not permitted. However, additional certifications that do not constitute material alterations to this appraisal report, such as those required by law or those related to the appraiser's continuing education or membership in an appraisal organization, are permitted. SCOPE OF WORK: The scope of work for this appraisal is defined by the complexity of this appraisal assignment and the reporting requirements of this appraisal report form, including the following definition of market value, statement of assumptions and limiting conditions, and certifications. The appraiser must, at a minimum: (1) perform a complete visual inspection of the interior and exterior areas of the subject property, (2) inspect the neighborhood, (3) inspect each of the comparable sales from at least the street, (4) research, verify, and analyze data from reliable public and/or private sources, and (5) report his or her analysis, opinions, and conclusions in this appraisal report. INTENDED USE: The intended use of this appraisal report is for the lender/client to evaluate the property that is the subject of this appraisal for a mortgage finance transaction. INTENDED USER The intended user of this appraisal report is the lender/client. DEFINITION OF MARKET VALU The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing oftitle from seller to buyer under conditions whereby: (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and each acting in what he or she considers his or her own best interest; (3) a reasonable time is allowed for exposure in the open market; (4) payment is made in terms of cash in U. S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions* granted by anyone associated with the sale. *Adjustments to the comparables must be made for special or creative financing or sales concessions. No adjustments are necessary for those costs which are normally paid by sellers as a result of tradition or law in a market area; these costs are readily identifiable since the seller pays these costs in virtually all sales transactions. Special or creative financing adjustments can be made to the comparable property by comparisons to financing terms offered by a third party institutional lender that is not already involved in the property or transaction. Any adjustment should not be calculated on a mechanical dollar for dollar cost of the financing or concession but the dollar amount of any adjustment should approximate the market's reaction to the financing or concessions based on the appraiser's judgment. STATEMENT OF ASSUMPTIONS AND LIMITING CONDITIONS: The appraiser's certification in this report is subject to the following assumptions and limiting conditions: 1. The appraiser will not be responsible for matters of a legal nature that affect either the property being appraised or the title to it, except for information that he or she became aware of during the research involved in performing this appraisal. The appraiser assumes that the title is good and marketable and will not render any opinions about the title. 2. The appraiser has provided a sketch in this appraisal report to show the approximate dimensions of the improvements. The sketch is included only to assist the reader in visualizing the property and understanding the appraiser's determination of its size. 3. The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in this appraisal report whether any portion ofthe subject site is located in an identified Special Flood Hazard Area. Because the appraiser is not a surveyor, he or she makes no guarantees, express or implied, regarding this determination. 4. The appraiser will not give testimony or appear in court because he or she made an appraisal of the property in question, unless specific arrangements to do so have been made beforehand, or as otherwise required by law. 5. The appraiser has noted in this appraisal report any adverse conditions (such as needed repairs, deterioration, the presence of hazardous wastes, toxic substances, etc.) observed during the inspection of the subject property or that he or she became aware of during the research involved in performing this appraisal. Unless otherwise stated in this appraisal report, the appraiser has no knowledge of any hidden or unapparent physical deficiencies or adverse conditions of the property (such as, but not limited to, needed repairs, deterioration, the presence of hazardous wastes, toxic substances, adverse environmental conditions, etc.) that would make the property less valuable, and has assumed that there are no such conditions and makes no guarantees or warranties, express or implied. The appraiser will not be responsible for any such conditions that do exist or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is not an expert in the field of environmental hazards, this appraisal report must not be considered as an environmental assessment of the property. 6. The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory completion, repairs, or alterations on the assumption that the completion, repairs, or alterations of the subject property will be performed in a professional manner. Freddie Mac Fam 70 March 2005 Page 4 of6 Fannie Mae Fam 1004 Mamh 2005 Uniform Residential Appraisal Report File# 05SC031 APPRAISER'S CERTIFICATION: The Appraiser cetifies and agrees that: 1. I have, at a minimum, developed and reported this appraisal in accordance with the scope of work requirements stated in this appraisal report. 2. I performed a complete visual inspection of the interior and exterior areas of the subject property. I reported the condition of the improvements in factual, specific terms. I identified and reported the physical deficiencies that could affect the livability, soundness, or structural integrity of the property. 3. I performed this appraisal in accordance with the requirements of the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place at the time this appraisal report was prepared. 4. I developed my opinion of the market value of the real property that is the subject of this report based on the sales comparison approach to value. I have adequate comparable market data to develop a reliable sales comparison approach for this appraisal assignment. I further certify that I considered the cost and income approaches to value but did not develop them, unless otherwise indicated in this report. 5. I researched, verified, analyzed, and reported on any current agreement for sale for the subject property, any offering for sale of the subject property in the twelve months prior to the effective date of this appraisal, and the prior sales of the subject. property for a minimum of three years prior to the effective date of this appraisal, unless otherwise indicated in this report. 6. I researched, verified, analyzed, and reported on the prior sales ofthe comparable sales for a minimum of one year prior to the date of sale of the comparable sale, unless otherwise indicated in this report. 7. I selected and used comparable sales that are locationally, physically, and functionally the most similar to the subject property. 8. I have not used comparable sales that were the result of combining a land sale with the contract purchase price of a home that has been built or will be built on the land. 9. I have reported adjustments to the comparable sales that reflect the market's reaction to the differences between the subject property and the comparable sales. 10. I verified, from a disinterested source, all information in this report that was provided by parties who have a financial interest in the sale or financing of the subject property. 11. I have knowledge and experience in appraising this type of property in this market area. 12. I am aware of, and have access to, the necessary and appropriate public and private data sources, such as multiple listing services, tax assessment records, public land records and other such data sources for the area in which the property is located. 13. I obtained the information, estimates, and opinions furnished by other parties and expressed in this appraisal report from reliable sources that I believe to be true and correct. 14. I have taken into consideration the factors that have an impact on value with respect to the subject neighborhood, subject property, and the proximity of the subject property to adverse influences in the development of my opinion of market value. I have noted in this appraisal report any adverse conditions (such as, but not limited to, needed repairs, deterioration, the presence of hazardous wastes, toxic substances, adverse environmental conditions, etc.) observed during the inspection of the subject property or that I became aware of during the research involved in performing this appraisal. I have considered these adverse conditions in my analysis of the property value, and have reported on the effect of the conditions on the value and marketability of the subject property. 15.1 have not knowingly withheld any significant information from this appraisal report and, to the best of my knowledge, all statements and information in this appraisal report are true and correct. 16. I stated in this appraisal report my own personal, unbiased, and professional analysis, opinions, and conclusions, which are subject only to the assumptions and limiting conditions in this appraisal report. 17. I have no present or prospective interest in the property that is the subject of this report, and I have no present or prospective personal interest or bias with respect to the participants in the transaction. I did not base, either partially or completely, my analysis and/or opinion of market value in this appraisal report on the race, color, religion, sex, age, marital status, handicap, familial status, or national origin of either the prospective owners or occupants of the subject property or of the present owners or occupants of the properties in the vicinity ofthe subject property or on any other basis prohibited by law. 18. My employment and/or compensation for performing this appraisal or any future or anticipated appraisals was not conditioned on any agreement or understanding, written or otherwise, that I would report (or present analysis supporting) a predetermined specific value, a predetermined minimum value, a range or direction in value, a value that favors the cause of any party, or the attainment of a specific result or occurrence of a specific subsequent event (such as approval of a pending mortgage loan application). 19. I personally prepared all conclusions and opinions about the real estate that were set forth in this appraisal report. If I relied on significant real property appraisal assistance from any individual or individuals in the performance of this appraisal or the preparation of this appraisal report, I have named such individual(s) and disclosed the specific tasks performed in this appraisal report. I certify that any individual so named is qualified to perform the tasks. I have not authorized anyone to make a change to any item in this appraisal report; therefore, any change made to this appraisal is unauthorized and I will take no responsibility for it. 20. I identified the lender/client in this appraisal report who is the individual, organization, or agent for the organization that ordered and will receive this appraisal report. Freddie Mac Fort 70 March 2005 Page 5 of 6 Fannie Mae Fain 1004 March 2005 1 Uniform Residential Appraisal Report File# 05SCO31 21. The lender/client may disclose or distribute this appraisal report to: the borrower; another lender at the request of the borrower; the mortgagee or its successors and assigns; mortgage insurers; government sponsored enterprises; other secondary market participants; data collection or reporting services; professional appraisal organizations; any department, agency, or instrumentality of the United States; and any state, the District of Columbia, or other jurisdictions; without having to obtain the appraiser's or supervisory appraiser's (if applicable) consent. Such consent must be obtained before this appraisal report may be disclosed or distributed to any other party (including, but not limited to, the public through advertising, public relations, news, sales, or other media). 22. I am aware that any disclosure or distribution of this appraisal report by me or the lender/client may be subject to certain laws and regulations. Further, I am also subject to the provisions of the Uniform Standards of Professional Appraisal Practice that pertain to disclosure or distribution by me. 23. The borrower, another lender at the request of the borrower, the mortgagee or its successors and assigns, mortgage insurers, government sponsored enterprises, and other secondary market participants may rely on this appraisal report as part of any mortgage finance transaction that involves any one or more of these parties. 24. If this appraisal report was transmitted as an "electronic record" containing my "electronic signature," as those terms are defined in applicable federal and/or state laws (excluding audio and video recordings), or a facsimile transmission of this appraisal report containing a copy or representation of my signature, the appraisal report shall be as effective, enforceable and valid as if a paper version of this appraisal report were delivered containing my original hand written signature. 25. Any intentional or negligent misrepresentation(s) contained in this appraisal report may result in civil liability and/or criminal penalties including, but not limited to, fine or imprisonment or both under the provisions of Title 18, United States Code, Section 1001, et seq., or similar state laws. SUPERVISORY APPRAISER'S CERTIFICATION: The Supervisory Appraiser certifies and agrees that. 1. I directly supervised the appraiser for this appraisal assignment, have read the appraisal report, and agree with the appraiser's analysis, opinions, statements, conclusions, and the appraiser's certification. 2.1 accept full responsibility for the contents of this appraisal report including, but not limited to, the appraiser's analysis, opinions, statements, conclusions, and the appraiser's certification. 3. The appraiser identified in this appraisal report is either a sub-contractor or an employee of the supervisory appraiser (or the appraisal firm), is qualified to perform this appraisal, and is acceptable to perform this appraisal under the applicable state law. 4. This appraisal report complies with the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place at the time this appraisal report was prepared. 5. If this appraisal report was transmitted as an "electronic record" containing my "electronic signature," as those terms are defined in applicable federal and/or state laws (excluding audio and video recordings), or a facsimile transmission of this appraisal report containing a copy or representation of my signature, the appraisal report shall be as effective, enforceable and valid as if a paper version of this appraisal report were delivered containing my original hand written signature. APPRAISER Signature 9 Nam St hen Co le Company Name RSR Appraisers & Analysts Company adds. 3 Lemoyne Drive Suite 100 Lemoyne PA 17043 Telephone N.mber 717-763-1212 Email Address Date of Signature and Report November 25, 2005 Effective Date of Appraisal March 30, 2000 statecertificaaon# Assistant to Certified Gen. Appraiser SUPERVI.$ORY APPRAI R-(9NLY IF REQUIRED) Signature Name W06 F. rothwan _ Cotopany Nana RSR Anprafse & Analysts company Address 3 Lemoyne Drive, Suite 100 Lemoyne PA 17043 TelephoneNurnber 717-763-1212 Email Address Date ofsignature November 25.2005 stite Certification # GA00030L or state License if or State License # State PA or Otbar (describe) State # Expiration Date of Certification or License 0613012007 State YA Expiration Data of Ca ufication or Lice ase ADDRESS OF PROPERTY APPRAISED 55 Ridge Avenue Carlisle PA 17013 APPRAISED VALUE OF SUBJECT PROPERTY S 195,000 LENDER/CLIENT Name W. Darrwn Powell Esquire Company Name Thomas Thomas & Hafer. LLP company Address 305 North Front Street Harrisburg. PA 17101 SUBIECTPROPERTY HX Did not inspect subject property Did inspect exterior of subject property from street llateofbtspeetion October 5 2005 (curb-side) Did inspect interior and exterior of subject property Date of Inspection COMPARABLE SALES X 8 Did not inspect exterior of comparable sales from street Did inspect exterior of comparable sales from street Date of inspection November 21.2005 Email Address Freddie Mac Form 70 Mardi 2005 Page 6 of 6 Fannie Mae Form 1004 March 2005 SUBJECT PHOTOGRAPH ADDENDUM OSSCO31 Address 55 Ridge Avenue Carlisle County Cumberland State PA Zip Code 17013 W. Darren Powell Thomas, Thomas & Hafer LLP FRONT OF SUBJECTPROPERTY REAR OF SUBJECT PROPERTY STREET SCENE RSR Appraisers & Analysts i , • Detailed Results fo r Parcel 29-05-0429-036. in tl DistrictNo 29 Parcel ID 29-05-0429-036. M"Suf k HouseNo 55 Direction Street RIDGE AVENUE Ownerl MMLIGAN, RICHARD E & KAY D Owner2 PropType R. PropDesc UvArea 2100 CurLaudVal 42900 CurImpVa1 130570 CurTotVal 173470 CurPretVal Acreage 1.58 CIGrnStat Ta:Ei 1 SabAmt 32000 SaleMo 4 SaloDa 2 SaleCe 19 SaIeYr 98 DeedBkPage 00174-00722 YearBlt 1998 BY File Date 10/25/2004 HF Approval Status A ie 2004 Tax Assessment Database http://taxdb.ccpa.net/details.asp?id=29-05-0429-036.&dbselect=l 10/10/2005 r ? . o`er w? 00 • ? ?a,? (\ e ? \ ? . t - 3ik ? i' t{K y . n 4 4 rv rN%., , ,. r ( r ;? 5 'r xF i ?F ( ? 4 !? P r ? ' is ' ?'•< d+ 1 fi ? x' w. AT, s; a r it e ?? u A 1 Subject: 55 Ridge Avenue, Carlisle, PA 17013 Tax ID Number: 25-05-0439-036 ;P -05 44- G LER /V ^, 0: ii OF 3G EDS biCi:R! ::rIU COUNTY -iii. 90 Nit Z Bpi 10 05 TMq DEED Made the _? 5 day of / in the year Nineteen hundred and n'unety-eight (1998) Between KOLLAS AND COSTOPOULOS, a PawrAvama GeneralPamlership comprised of William C. Kollas and William C. Costopoulos, hereinafter referred to as GRANTOR, AND RICRARD E. MH.I.IGAN sad KAY D. MILL IGAN, hereinafter referred to as GRANTEES, t, <i. Witnesaeth, that in Consideration ofTHIRTY-TWO TFIOUSAND DOLLARS (S32,000.00), in band paid, the mosipt vritereof h hereby acknowledged, the said Grantor does hereby grant and convey to the said Grantees, their heirs and assigns, ALL THAT CERTAIN piece or parod of lard with buildings and improvenuaits thereon erected, if say, situate in Wertz Rini Heights, North Middleton Township, Cumberland County, Commonwealth of Pannglvania boom" and des uibed in accordance with bind Subdivision Plan for Phase No. U for "Wertz Run 1140W' recorded on October 16, 1996, in Cumberland Comity Phu Book 73, Page 47, as Mows, to wit: BEGMING at a point, said point being located on the aosthers right-of-way ]lase of Ridge Avenue at the oommon fica property comer of Lot #87 and Lot #85 of Weitz Run Heights, Phase 2; Tiesoe along Lot 097 and Lot #86 North 37 degrees 15 minutes 00 seconds East, a distance of264.68 Bret to a pWa at Lot 084 of Watt Rua I<Ieiglats, prase 2; Thence along Lot #54 South 50 degrees 55 show 00 seconds East, a distaste 118.03 feet to a point; Thatce along the same South 49 degrees 15 minutes 00 seconds East, a distance of 180.61 Bret to a point at land now or hue ofKaRn and Coatopoaloa, lKisgabr mk. Section VII; 7luetce along land now or late of Koss and Codopoulc% IOsga mx*, Sood" V11 South 20 dcgn= 32 mbiates 03 seoouds Wast, a distatwe of %.92 Bet to a point on the northern right-ofrway line ofRidge Avenwe; Tbenee along the northern right-of-way We of Ridge Avenue the following 3 courses: I. Soudi 79 degrees 31 minutes 27 seconds Wag, a distance of 68.49 feet to a point; id-ox 174 P.,cf 722 r 4 1' f a at the arc of a =me, curving to the right having a radius of 325.00 feet, an arc length of 270.72 feet and a central angle of 47 degrees 43 minutes 34 seconds to a point; North 52 degrees 45 minutes 00 seconds West, a distance 909.57 feet to a point, the point of BEGINNING. SAID LOT CONTAINS 68,766.51 square feet or 1.579 acres. SAID LOT is subject to a portion of a 20 feet storm drainage easement located along its northern property line and an 80 hat wide storm pipe excavation easement as located and shown a the Final Subdivision Plan of Wertz Run Heights, Phase 2. BEING Lot # 85 of the Final Subdivishm Pfau of Wertz Run Heights, Carlisle, Cumberland County, Pennsylvania, recorded in Plan Book 73, Page 47, on October 16, 1996. BEING part of the prardses which Norman L Dellinger and Nancy L Dellinger, his wife; WM= G. IBppeasteel and Margaret L Hippeasteel, his wife, and Anthony L Lopore and Davadise S. L.epot% Ids wiR4 by their Deed dated August 5, 1993, and recorded August 5, 1993, is the Office of the Recorder "reds in and for C smbulmd Canty, a Deed Book "L," Volume 36, Page 438, granted and cos vayed unto Kola and Costopoulos, a Pennsylvania General Pautnerdtip, Grantors hernia. UNDER AND SUBJECT to Declaration of Building and Use Restrictions for the Final Subdivision Plan of Watt Run Heights, dated December 16, 1993, and recorded in Miscellaneous Book 463, Page 1178. And the said Grantor does hereby warrant spodAy the property hereby conveyed. IN WITNESS WHEREOF, the uudarsigoed, being all of the geaerab partners of the said Grantor have hereunto set their hands and seals the day and year first above written. 0_QJ1.L-.)U? A) .`9- ?EAL) WILLIAM C. COSTOPOULOS (SEAL) W1L1.1AM C. KOLLAS BOOB 174 PACE 723 COMMONWEALTH OF PENNSYLVANIA . . SS: COUNTY OF CUMBERLAND Oa then. tke f3( day 1998, before me, a Notary Publiq pasoaally appearod WILLIAM G COSTOPOULOS and WILUAM G KOLLAS. who aolmaw1odged that they as do gmeml paatma ofKOL LAS AND COSTOPOULOS. and that they as sack Swerol pubma beh% sudmimd m to do vammul the foregoing isdrumeat for the pttrpaaes tb=VW 00nta4ed. IN WffNZ S WMREOF. I have beretmto sec my band aad official scat y?,is_wlrJ' ty.?i '?• ?' .,?"??~'??. '' Iewr/?IdelYp landCwN /--p___ ?V7, - 4 w.. `d• t+grtxasialonN OcL tat Notary Public I hereby cartiljr that the precise residence and complete post office address ofthe wlUtia Grantees is 991 & Av: meta Yrruee- P./L S6u?rP? ! Pd 93 Alleraey fas Grantees arc x am 174 rzf 724 ES w? ?SOSSS?OOOP4 T Subject: 55 Ridge Avenue, Carlisle, PA 17013 Zone: R-1, Suburban Residential f CONSERVATION (C) o f R f 1o r i 2. ^4- f A?I W:t 11-161ttl. iChl t _ MOM{ MID -00011L P1161ow FIRM ai7NE c 119n0 INSUP.gm UTI No ; i 'I t `-i i NORTH b1(11 MIX)N, - HNNSlr7.'GrANIA Subject it I i ;I PANEL 3 fi^2 10 .... •..... I 6 C-HPANILT•PRiEIML4NEtA 20,\ L A R 4alYidT D MIS `;` EFLIIEMO LATE: APHIL 1. IM - _ • I Ilugb .:,=u5 • SUBJECT: 55 Ridge Avenue, Carlisle, PA FIRM: 4203670005B DATE: 04/01/1982 ZONE: 11 Ct7 COMPARABLES PHOTOGRAPH ADDENDUM 05SC031 -, v Borrower N/A Property Address 55 Ridge Avenue City Carlisle County Cumberland State PA Zip Code 17013 Lender W. Darren Powell, Thomas, Thomas & Hafer, LLP COMPARABLE SALE # 1 16 Pennway Drive Carlisle, PA 17013 Date of Sale : 3/14/2000 Sale Price 152,000 Sq. Ft. 1,900 $ / Sq. Ft. 80 COMPARABLE SALE # 2 1140 Pine Road Carlisle, PA 17013 Date of Sale : 12/7/1999 Sale Price 180,000 Sq. Ft. 1,800 $ / Sq. Ft. 100 COMPARABLE SALE # 3 71 Derbyshire Drive Carlisle, PA 17013 Date of Sale : 12/7/1999 Sale Price 227,900 Sq. Ft. 2,146 $ / Sq. Ft. 106.20 RSR Appraisers & Analysts -, ., Comparable Sales Area Map rl ?? C"? `-a -+ " ??? ? = _ t i ."`"? t?.?C ?.', ?? «, ?? ? Y? ..?: POST & SCHELL, P.C. BY: PAUL W. GREGO I.D. #:39701 BY: MEGHAN K. FINNERTY I.D.#: 202950 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife Plaintiffs, V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC. Defendants. ATTORNEYS FOR DEFENDANTS WILLIAM C. COSTOPOULOS WILLIAM C. KOLLAS WILLIAM C. COSTOPOULOS AND WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION LAW NO: 01-3823 DEFENDANTS' MOTION FOR A CONTINUANCE Defendants, by and through their attorneys, hereby file the following Motion for a Continuance, and in support thereof, aver as follows: 1. Plaintiffs initiated the instant action for property damage, loss of trees, which they allegedly suffered when Defendants entered onto their property and destroyed some trees while developing land abutting Plaintiff's property. 2. This case has been around for over six years during which former counsel for Plaintiffs took little or no action to prosecute Plaintiffs' claims before the eventual voluntary I forfeiture of his license to practice law in the Commonwealth. Current counsel entered last year, and little further action has been taken on the file since that point, until the sudden filing last month of a Praecipe to List the matter for trial. 3. Last summer, after years of prior failed attempts, Defendants were finally allowed to inspect the Plaintiff's property at which point they retained an expert to evaluate the alleged damage. 4. In an effort to settle this matter before further defense costs were incurred-- including the preparation of dispositive motions and expert reports--Defendants collectively made an offer of settlement in January of this year. 5. This offer apparently never reached Plaintiffs' counsel as she changed her email address. 6. One month later, without advance warning to any party, Plaintiff listed this matter for trial. 7. Defendants file the instant motion respectfully requesting a continuance until the next trial term so that an expert report may be prepared and submitted and so that the court may have time to review and rule on Motions for Partial Summary Judgment. 8. On March 7, 2008, the undersigned sought concurrence from opposing counsel; however, counsel was out of the office for the remainder of the day. 9. Pursuant to Pennsylvania Rule of Civil Procedure 216, a court may continue a case for "[s]uch special ground as may be allowed in the discretion of the court." Pa. R.C.P. 216(A)(4). -2- 10. In determining whether a request for a continuance should be granted, the courts are to consider the following factors: "'[1] whether there was prejudice to the opposing party by a delay, [2] whether opposing counsel was willing to continue the case, [3] the length of the delay requested and [4] the complexities involved in presenting the case."' Papalia v. Montour Auto Service Co., 452 Pa. Super. 395, 400, 682 A.2d 343, 345 (1996) (citing Snyder v. Port Authority of Allegheny County, 259 Pa. Super. 448, 453, 393 A.2d 911, 914 (1978)). 11. In the present case, Defendants are requesting a brief one term continuance so that several matters including the appropriate measure of damages can be simplified prior to trial through the filing of dispositive motions and so that Defendants may have their expert prepare a report. 12. Any prejudice Plaintiff would suffer by a brief one term continuance after years of neglecting this matter is far outweighed by the prejudice Defendants would suffer if they were not able to have their expert prepare a thorough report. 13. Furthermore, it is respectfully submitted that the issue of measure of damages can be simplified prior to trial through the submission of briefs should this request for a bri continuance be granted. WHEREFORE, Defendants hereby request that this Honorable Court enter an order granting their Motion for Continuance until the next trial term. Respectfully Submitted, Post & Schell, P.C. By: Paul W. Gr o, Esquire Attorney for Defendants William Costopoulos, William C. Kollas, and -3- William C. Costopoulos and William C. Kollas, t/d/b/a Regency Homes Date: 3-1-0 -4- CERTIFICATE OF SERVICE I; Lilly A. Torres, an employee of the law offices of Post & Schell, P.C., do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following person(s) at the following address(es) by sending same in the United States mail, first-class, postage prepaid: Stacy B. Wolf, Esquire WOLF & WOLF 10 West High Street Carlisle, PA 17013 Barry A. Kronthal, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 W. Darren Powell, Esquire THOMAS, THOMAS & HAFER 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 LILLY A. TO S DATE: -5- n Fn + ,... ( _ f"o e'r .1 N STACY B. WOLF, ESQUIRE ATTORNEY ID NO. 88732 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFFS RICHARD E. MILLIGAN and KAY D. MILLIGAN, his wife, Plaintiffs V. WILLIAM C. COSTOPOULOS, WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW : NO. 01-3823 PRAECIPE TO WITHDRAW CLAIMS OF PLAINTIFF RICHARD E. MILLIGAN TO THE PROTHONOTARY: Kindly mark the matter withdrawn solely as to Plaintiff Richard E. Milligan. April ? 2008 STACY B. W%F, ESQUIRE WOLF & WOLF 10 West High Street Carlisle, PA 17013 717-241-4436 SUPREME COURT ID #88732 4?b , ;:. ;?,.°s c? . C t`" _ r Jl f?? L.) STACY B. WOLF, ESQUIRE ATTORNEY ID NO. 89732 WOLF & WOLF 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFF KAY D. MILLIGAN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM C. COSTOPOULOS, : CIVIL ACTION LAW WILLIAM C. KOLLAS, WILLIAM C. COSTOPOULOS and : NO. 01-3823 WILLIAM C. KOLLAS, t/d/b/a REGENCY HOMES, . BOYD E. DILLER, INC., and FOLLMER EXCAVATING, INC., Defendants PRAECIPE TO THE PROTHONOTARY: Kindly mark this action settled, discontinued and ended. - 2, ?A e. June 2008 -4a6.,tl STACY OLF, ESQ RE WOLF & WOLF 10 West High Street Carlisle, PA 17013 717-241-4436 SUPREME COURT ID #88732 Attorney for Plaintiff t'