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HomeMy WebLinkAbout03-2550TODD GIBSON & DIANE GIBSON Plaintiffs LIBERTY LAND TRANSFER, INC., 4660 Trindle Road, Suite 101 Camp Hill, PA 17011 Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW · JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue a Writ of Summons in the above-captioned action· X Writ of Summons shall be issued and forwarded to Attorney. Dated: May 30, 2003 By: Respectfully submitted, RHOADS & SINON LLP Attorney I.D. No. 72 ,70 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs 474283.1 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: - Prothonotary TODD GIBSON & DIANE GIBSON, Plaintiffs V. LIBERTY LAND TRANSFER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW : NO. 03-25:50 : JURY TRIAL DEMANDED PROOF OF SERVICE As evidenced by the Sheriff's Return of Service attached hereto as Exhibit "A" and incorporated herein by reference, a Writ of Summons in this action was served on Defendant Liberty Land Transfer by the Sheriff by handing a copy to Defendant's Vice-Presdient, Adult in Charge, Holly Keller at the Defendant's principal place of business located at 4660 Trindle Road, Suite 101, Camp Hill, Pennsylvania 17011. By: Respectfully submitted, RHOADS & SINON LLP Kenneth L. Joel Stephanie E. DiVittore One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5;731 Attorneys for Plaintiffs 476494.1 SHERIFF'S RETURN - REGULAR CASE NO: 2003-02550 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GIBSON TODD ET AL VS LIBERTY LAND TRANSFER INC BRIAN BARRICK , Sheriff or iDeputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon LIBERTY LAND TRANSFER INC the DEFENDANT , at 1600:00 HOURS, at 4660 TRINDLE ROAD CAMP HILL, PA 17011 HOLLY KELLER, VICE PRESIDENT, on the 5th day of June SUITE 101 by handing to ADULT IN CHARGE , 2003 a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18 Service 9 Affidavit Surcharge 10 37 00 66 00 00 R. Thomas }(line 00 66 06/06/2003 So Answers: Sworn and Subscribed to before RHOADS & SINON ~ / //~ A.D. Prothonotary EXHIBIT "A" CERTIFICATE OF SERVICE; I hereby certify that on this 17th day of June, 2003, a true and correct copy of the foregoing Proof of Service was served by means of United States mail, first class, postage prepaid, upon the following: John D'Lauro D'Lauro & Dickenson 225 South 15th Street, Suite 811 Philadelphia, PA 19102 SHERIFF'S CASE NO: 2003-02550 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GIBSON TODD ET AL VS LIBERTY LAND TP~ANSFER INC RETURN - REGULAR BRIAN BARRICK , Cumberland County, Pennsylvania, says, the within WRIT OF SUMMONS LIBERTY LA/~D TP~ANSFER INC DEFENDAlqT , at 1600:00 HOURS, at 4660 TRINDLE ROAD CAMP HILL, PA 17011 HOLLY KELLER, VICE PRESIDENT, a true Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the on the 5th day of June , 2003 SUITE 101 by handing to ADULT IN CHARGE and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18 Service 9 Affidavit Surcharge 10 37 So Answers: 66 00 00 R. Thomas K~±ne 00 Sworn and Subscribed to before me this /2 ~ day of  ~ A.D. ~othonotary ' ~ 06/06/2003 ~ RHOADSBy: & SINON~ ~ri Deputy Sh riff Kenneth L. Joel, Esquire Attorney I.D. No. 72370 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17101 (717) 233-5731 Attorneys for Plaintiffs TODD GIBSON & DIANE GIBSON, Plaintiffs LIBERTY LAND TRANSFER, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2550 JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this Counterclaim 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 clain~ts 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 YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 20-6200 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 pot 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 como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualqnier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u 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 4th Floor, Cumberland County Courfliouse Carlisle, PA 17013 (717) 20-6200 Kenneth L. Joel, Esquire Anorney I.D. No. 72370 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17101 (717) 233-5731 Attorneys for Plaintiffs TODD GIBSON & DIANE GIBSON, Plaintiffs V. LIBERTY LAND TRANSFER, Defendant : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 03-2550 : JURY TRIAL DEMANDED COMPLAINT NOW COME Plaintiffs Todd Gibson and Diane Gibson ("Gibsons") through their attorneys, Rhoads & Sinon, LLP, and file the within Complaint and in support thereof aver the following: 1. Plaintiffs Todd and Diane Gibson are married imhviduals with an address of 1091 Peters Mountain Road, Dauphin, Pennsylvania 17018. 2. Upon information and belief, Defendant Liberty Land Transfer, Inc. ("Liberty Land") is a Pennsylvania Corporation with a place of business located at 4660 Trindle Road, Suite 101, Camp Hill, Pennsylvania 17011 engaged in the business of providing title search and title insurance services. 3. In 2001, the Gibsons sought to purchase real property located at 1091 Peters Mountain Road, Middle Paxton Township, Dauphin County, Pennsylvania ("Property"). 477431.1 4. In connection with the purchase of the property, the Gibsons contacted Liberty Land to perform a title search and provide title insurance for the Property. 5. In connection with the title work, Liberty Land, through Holly Keller, determined that a portion of the Walter property was subject to litigation, an equity action filed against Ralph S. Walter, Jr. ("Walter"), the owner of the Property ("the Equity Action"). 6. Specifically, on or about May 18, 1998, Gwendolyn and Ronald Stricker ("Strickers"), owners of neighboring property, filed a Complaint against Walter seeking access to their barn by means of an easement through Walter's property. 7. Based on the existence of the Equity Action, Liberty Land informed the Gibsons that it would not provide title insurance until such action was ended. 8. Liberty Land informed the Gibsons that further action was necessary to resolve the Equity Action because although there existed a Right-of:Way and Easement Agreement ("Right-of-Way Agreement") that would have resolved the Equity Action, the Agreement was not fully executed prior to Mr. Walter's death. 9. In reliance on Liberty Land's representations rogarding the status of the Equity Action, the Gibsons contacted the Strickers in an attempt to amicably resolve the matter. 10. Liberty Land assisted in these negotiations, including correspondence dated April 12, 2001, wherein Holly Keller, a Liberty Land employee, pro,poses, on behalf of the Gibsons, that in order to resolve the Equity Action, the Gibsons would agree to deed a 25' x 224.40' parcel of the Walter property upon its purchase by the Gibsons. (A copy of the April 21, 2001 correspondence is attached hereto as Exhibit "A" and incorporated herein by reference). 2 11. Accepted by the Strickers, the Gibsons entered into an Agreement with Verda Glacken, Executrix of Ralph S. Walter, Jr., Estate and the Strickers whereby the Gibsons and the Estate agreed to convey a 25' x 224.40' parcel of land along the southern edge of the Walter/Gibson property. (A copy of the Agreement is attached hereto as Exhibit "B" and incorporated herein by reference). 12. Subsequently, the Gibsons purchased the Walter property conveyed to them by Glacken, the Executrix of the Walter Estate. 13. After purchasing the property, the Gibsons employed a survey and engineering firm to subdivide the 25' x 224.40' parcel of land to be conveyed to the Strickers. 14. Upon completion of the subdivision plan, the Gibsons and Strickers became engaged in a dispute regarding the parcel of the property to be conveyed. The Strickers maintained that the Gibsons agreed to convey a 24' x 750' parcel of property. 15. As a result, on September 24, 2002, the Strickers instituted an Equity Action against the Gibsons seeking conveyance of a 25' x 750' parcel of property and other relief. 16. The parties have engaged in discovery and are preparing the litigation for trial at significant time, inconvenience and expense to the Gibsons. 17. Further, in the event that the Strickers are successful in the litigation, in addition to the value of the additional 25' x 525.6' parcel of property that the Gibsons would be compelled to convey to the Strickers, the Gibsons will suffer damages in the form of loss of use and enjoyment of the property in question. 18. In defending the litigation by the Strickers, the Gibsons became aware that the Right-of-Way Agreement between Mr. Walter and the Strikers was fully executed on August 5, 1999. (A copy of the fully executed Right-of-Way Agreement :is attached hereto as Exhibit "C" and incorporated herein by reference). 19. Further, the Gibsons discovered that, by Court Order dated June 25, 1999, the Dauphin County Court of Common Pleas, by the Honorable Scott Evans, directed the parties to the Equity Action to execute the Right-of-Way Agreement and discontinue the Equity Action. (A copy of the Court Order is attached hereto as Exhibit ';D" and incorporated herein by reference). COUNT I (Negligence) Plaintiffs incorporate herein by reference the allegations of Paragraphs 1 through 20. 19above. 21. In executing its duties as providing title search and insurance services, Liberty Land and its representatives had a duty to carefully, properly mad non-negligently perform these services. 22. Liberty Land was negligent, careless and reckless by failing to properly and carefully research the title to the Property. Specifically Liberty Land was negligent, careless and reckless in failing to discover that the Right-of-Way Agreement was fully executed and, as a result, consistent with the June 25, 1999, the parties to the Equity Action were obligated to mark the litigation discontinued. 23. The negligence, carelessness and recklessness of Liberty Land and its representatives as set forth herein, consisted of the following: (a) failing to discover that the Right-of-Way Agreement was fully executed; 4 (b) (c) (d) failing to discovery that, pursuant to the June 25, 1999 Court Order, the parties were obligated to discontinue the Equity Action; failing to properly advise the Gibsons refi,,arding the proper course of action; and failing to act in the best interest of the Gib.sons. 24. As a direct result of the negligence, carelessness and recklessness of Liberty Land, the Gibsons suffered the above-mentioned damages. 25. At all relevant times, Holly Keller acted as the agent, servant and/or employee of Liberty Land. 26. Acting within the course and scope of her duties, Liberty Land is wholly liable for the negligence, carelessness and recklessness of Holly Keller, its; agent, servant and/or employee. WHEREFORE, Plaintiffs Todd and Diane Gibson respectfully request that this Court enter judgment in their favor, and against Defendant Liberty Land Transfer, Inc., in an amount in excess of $25,000.00 together with costs and interest as allowed by law. Respectfully Submitted, RHOADS & S1NON LLP By: Kenneth L. Joel, Esquire Stephanie E. DiVittore, Esquire One South !Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys tbr Plaintiffs ATTORNEY VERIFICATION I, Stephanie E. DiVittore, Esquire, depose and state that I am the attorney for Plaintiffs Todd and Diane Gibson, that I am acquainted with the facts set forth in the foregoing Complaint and verify that the statements made in the aforementioned document are true and correct. I am signing this verification in order to serve this pleading, and a substituted verification will be filed in a timely manner hereafter. 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. Stephanie E. DJVittore, Esquire 471308.1 471308.1 EXHIBIT "A" LIBERTY LAND TRANSFER, 1NC. TITLE INSURANCE AGENTS Lee Park - Suite 305 Conshohocken, PA 19428 Philadelphia Office: Lewis Tower Build~ug - Suite 811 225 South 15m Street Philadelphia, PA 19102 215- 546-1900 Fax 218-$46-5161 Harrisburg Office: 4660 Trindle Road - Suite 10]. CampHill, PA 17011 717-975-9915 Fax 717-763-7460 w~av.libertylandtransfer.com Delaware Office: 1222 Krug Street P O Box 25144 Wilmmglon, DE 19899 302-651-9201 Fax 302-651-0294 Pittsbuxgh Office: 4290 Old Wilham Penn Highway MonroevOJe, PA 15146 412-373-1185 Fax 412-373-7267 4/12/01 TO: Richard Freeburn, Esq. FROM: Holly Keller Stricker/right of way Dick: I spoke with Mrs. Stricker last evening. She indicated that they would not cooperate in signing the existing agreement to terminate the equity suit, instead they would like a deed for the 25' right~of-way leading to the barn. The buyers really would like this property; they are willing to deed the 25' strip to Mr. and Mrs. S~ricker, however, deeding the strip will require a' subdivision of the property which takes time. The buyers need to own the property in order to cooperate and give your ~lients what they want, but they cannot own the property as long as the equity suit remains unsatisfied. My proposal is this - the sellers (the Walters' estate) will put money in escrow to pay for the survey work, the subdivision process, preparation and recording of the deed for the 25' strip; the buyers will sign an agreement to perform the above items for the Strickers; the Stricker's will terminate the equity suit. I know your clients are angry and hpset with all that has happened to date. This proposal will hopefully appease them, in that they are getting what they want and the sellers will be paying for it. The only other solution I see is that the sellers will have to hire counsel and fight this thing out in court, which not only will cost the sellers lots of money, your:client will have to pay your fees to go 'back to court and they probably wouldn't end up with fee title to the strip. (And worse case scenario, is the sellers put up a fence to stop the use of the lane across their land by your clients - at this point in time, there is no right-of-way for their use of this lane) I appreciate your help in this matter. Will you talk to your clients, about the above proposal? Thanks. EXHIBIT "B" W~[ne~da'/, Mly ~9. 2001 6:46 PMTo: AGREEMENT Tills AGREEMENT, this day of _,' 2001, by and between Verda Giacken, Executrix of Ralph S. Waller, Jr., Estate CGiacken"), party of the first part, Todd Gibson and Diane Gibson, husband and wile ("Gibson"), party of the second part, and Ronald Stricker and Owendolyn S~rick~r, husband mid xvife ("S1ricker"), parly of the third part;, WHEREAS, Ralph S. Walter, Jr., is the record title owner to a certain tract of land situate in Danplfin, Dauphin County, Pennsylvania, more particularly described as identified herein in attached exhibit A; $,VtIEREAS, Gibson bas an equitable interest in Glackens' real property; WIIEREAS, S~cker is the record title owner to a e~'tain ~'act of la~d situate in Dauphin, Dauphin County, Pennsylvania, mom pan'icularly descri .b~ as idenlified herein in attached Exhibil B; WIIEREAS, the parties hereto arc desirous of' undertaking certain, mutually beneficial actions; ' NOW THEREFORE, in consideration of the promises and of lite mutual promises, covenants and undcrtakings hereinafter set forth and for other good ,a~ Wu_able consideration receipt of which is hereby acknowledged by each ofthe parties of Ihe first part, pafly of the second part and party of the third part, intending to be~l~gal[y bound hereby covenant and agree as follows: Glacken shall Iransfer unto Gibson that real properly identified herein in at~ached Exhibit A; Glacken shall place in a non-interest bearing escrow account the sum of $10,500.00 from tho sale of said real property to Gibson; said funds to be held by Slrick~r's allomey, James A. Miller, Esquire, 2010 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 C/17)737-6400; Gibson sbell immediately undertake efforts to subdivide thc real propcrty as identified herein in attached Exhibit C; Glackcn, Gibson end Slricker acknowlcdgc and ag:mc fi,at Mcllmm Associatcs, PC, shall perform the work associated with thc subdivision identified hereinabove; 5. Glacken, Gibson atad~.~cknr slmll provide their complete coopcratio~ in Melham Associates, PC, perform~c¢ of the subdivision work'; Glacken, or her agent, Gibson ant ';tricker agree Io nnderlake an onsight inspection of the real property, vcith Ix .elham Associates, PC, present in c,rder to delineate the particular grants and co ,veyanees intended and mom particularly stated as, the conveyance by the pa ty of the firsl part and the party of second part Io the party of the third p ,fly, a 25 foot wide slrip ofland along the sonthem boundary of the Glacke~s properl3', from a point adjacent to the Glackens' driveway, along the entire y of the sunthem boundary up to a point across the Strickers' ham; 7. Gibson and Slricker do hereby agree to enter a more formal road maintenance agreement on or before the expira ion of six (6) months from the ,date of transfer of real properly between Glacken and Gibson for Ibc reasonable allaying of costs associated with Ih{ right-of-way, driveway portion betxveen Peters Mountain Road and the entran,: to Glackens' property (to be transferred to Gibson); 8. The parties hereto acknowledge that ,ttached Exhibil D identifies the intended, approximated costs associaled x~4th: se subdivision effort and the schedule for completion of such; 9. Olacken and Gibson do hereby fi~rtber agree that they shall conlact Ibc telephone company and cable service provider and'inslroct Ihese companies to move their wires fi'om the old telephone pole (identified herein on attached Exhibit C on Stricker's fight-of-way) to the new telephone pole (identified herein on attached Exhibit C on Stficker's fight-of-way) and do hereby further agree that they shall be wholly responsible for the costs, if any, associated with said companies undertaking(s); 10. Stricker shall undertake the removal and discontinuance oftheir pending eqnity action clouding title to Glaeken's real properly in order for Gibson to proceed to settlement thereon; 11. This agreement shall be binding upon the respeclive heirs, executors, administrators, suca:essors and assigns; 12. The parties hereto acknowledge that time is of the essence but nevertheless agree that such undertakings cannot be definitively defined in terms of time, and therefore lhey shall each accept a reasonable time flame in which to complete the performances hereunder, 13. This Agreement shall not be recorded in any office for the recorder of deeds in any county. Todd Gibson R. on~ld St~ckcr G~.vc~dol~ Stfickcr IN WITNESS WttEREOF, th~ parties hereto scl lh¢ir hands and s~ls on da~es so indicated. Dal~: WITNESS: Verda Glacken ' Diane Gibson - Ronald Slrickcr Gwendolyn SIricker IN WITNESS WHEREOF,~ the parties hereto set ll~eir hands and seals on tile dates so indicated. Date: WITNESS: Verda Glacken Date: -Todd Gibson Diane Gibson Date: Ronald Stricker Gwend01yn~ ~tt~ck~r ' - EXHIBIT "C" RIGHT-OF-WAY AND EASEMENT AGREEMENT ,,% THIS INDENTURE, made the day of ~o~.~ , 1 9 9 9 between I~.LPH S. WALTER, JR., singk: man, of Dauphin ~ounty, Pennsylvania, of one part (hereinafter cailed Grantor), and RONALD E. STRICKER AND GV~ENDOLYN Ii. STRICI{ER, of York County, Pennsylvania, of the other part (hereinafter called the Grantees); WITNESSETH, that the Grantor and Grantees, for and in consideration of the. settlement of the action fried in the Court of Common Pleas of Dauphin County, Pent'sylvania at No 5518 Equity, 1998, and intending to be legally bound hereby, agree that the Grantor has granted, and by these presents does hereby grant unto the said Grantees, their heirs and assigns,.-.the :Free and uninterrupted use, liberty and privilege of, and 'passage in' and along a certain lane or passage way, fifteen feet in width, beginning at a point on the northern edge of a private road, at the western most corner of lands of Grantees, as described in Grantees' deed dated July 6, 1995, and recorded in the Office of the Recorder ¢,f Deeds of Dauphin County, Pennsylvania, in Record Book 2437, Page 63, and extending along the boundary of Grantor's and Grantees' la~%ds past a barn currently located on the lands of Grantees, North 69 degrees, 52 minutes, 07 seconds East a distance of approximately 224.40 feet; THENCE North 11 degrees 07 minutes, 53 seconds West to the Northwestern corner of said fifteen foot wide passage way, THENCE South 69 degrees, 52 minutes, 07 sec~r~ds West to the northern edge of said private road. IT BEING UNDERSTOOD, that the cart path currently located within said passage way shall not be expanded beyond its current dimensions so as to encroach further into 'We ]a-nds of Grantor: and, IT BEING FURTHER UNDERSTOOD, that in the event that Grantees develop..the lands to the nor~ of the said barn for non- agricultural purposes, the said fifteen foot wid~ easement and right-of- way granted herein shall continue to ex/st, but shah terminate at the point where the southwestern corner of the aforesaid barn is currently located. TOGETHER. with the free ingress, egress and regress to and for the said Grantees, their heirs and assigns, their tenants and under tenants, occupiers or possessors of the said Grantees' sa/d premises contiguous to said passage way, in common with them. TO HAVE AND TO HOLD, all and singular thc privileges aforesaid to them. the said Grantees, their heirs and assigns, to and for thc any proper usc and behoof of thc said Grantees, their heirs and assigns, forever. IN wxTNESS WHEREOF, the said Grantor and Grantees have hereunto set their hands and seals the day and year first above written. WITNESS: RALPH S,~ W~LTER, ~R~ ' "~ RONALD E. STPdCKER - COM2vIO~ALTH OF PENNS~V~: : COUNTY OF DAUPHIN : SS: On this, the ~4~- day of~]~, 1999, before me, a Notary Public, the undersigned officer, personally appeared Ralph S. Walter, known to me (or satisfactorily pro~,en) to be the person whose name is subscribed to the within Right-of-Way and Easement Agreement, and acknowledged to me that he executed same for the purposes therein contained. IN WrFN~S WHEREOF, I hereunto set my hand and official seal. 499~142 COMMONWEALTH OF PENNSYLVANIA: : COUNTY OF DAUPHIN : SS On this the 23rd day of September, 1999, before me, a Notary Public, the undersigned officer, personally appeared Ronald E. Stricker and Gwendolyn K. Stricker, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument and acknowledged that they exectuted the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my atld offic~l,s.eal~,~/ NOTARY PUBLIC EXHIBIT "B" EXHIBIT "D" RONALD E. STRICKER and GWENDOLYN K. STRICKER Plaintiffs RALPH S. WALTER, JR. Defendant IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 5518 Equity 1998 CML ACTION - EQUITY ORDER AND NOW, to wit this 075/ day of 3'U A/~/ 1999, upon consideration of the agreement to settle this action presented to the Court by counsel for all parties, and based upon the representations of counsel that they were authorized by their clients to enter into said agreement, the same is hereby approved and the following order is entered confirming said agreement: 1. The parties are directed to execute a Right-of-Way and Easement Agreement, a copy of which is attached hereto; 2. The Right-of-Way and Easement Agreement is incorporated in and made part of this Order: and, 3. Following the execution of the Right-of-Way Agreement, the parties shall promptly respective complaint and counterclaim prejudice. 19-- r-i file praecipes settled and and Easement to mark their discontinued with CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of July, 2003, a tree ~md correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: John D'Lauro D'Lauro & Dickenson 225 South 15th Street, Suite 811 Philadelphia, PA 19102 Kenneth L. Joel, Esquire Attorney I.D. No. 72370 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17101 (717) 233-5731 Attorneys for Plaintiffs TODD GIBSON & DIANE GIBSON, Plaintiffs V. LIBERTY LAND TRANSFER, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-2550 JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO: THE PROTHONOTARY Kindly substitute the Verification attached hereto as Exhibit "A" for the Attorney Verification attached to Plaintiffs' Complaint that was filed on or about July 7, 2003. Respectfully Submitted, RHOADS & SINON LLP By: Kenneth L. Joel, Esquire Stephanie E. DiVittore, Esquire One South Market Square P. O. Box 1146 HanSsburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs 4804191.1 EXHIBIT "A" VERIFICATION Todd Gibson deposes and says, subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities, that the facts set forth in the foregoing Complaint are tree and correct to the best of his knowledge, information and belief. CERTIFICATE OF SERVICE I hereby certify that on this 16th day of July, 2003, a true and correct copy of the foregoing Praecipe to Substitute Verification was served by means of United States mail, first class, postage prepaid, upon the following: John D'Lauro D'Lauro & Dickenson 225 South 15th Street, Suite 811 Philadelphia, PA 19102 DEASEY, MAHONEY & BENDER, LTD. BY: GERALD J. VALENTINI, ESQUIRE ADAM J. PANTANO, ESQUIRE Identification Nos.: 58261/85261 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103-2978 411.21449 Attomeys for Defendant, Dynacon, Inc. AISHA DIXON DYNACON, 1NC., CITY OF PHILADELPHIA and PHILADELPHIA GAS WORKS COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-2550 JURY TRIAL DEMANDED _ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned attorneys as counsel for defendant, Liberty Land Transfer. BY: Respectfully submitted, DEASEY, MAHONEY & BENDER, LTD. ADAM J. PANTANO, ESQUIRE Attorneys for Defendant, Liberty Land Transfer DEASEY, MAHONEY & BENDER, LTD. BY: GERALD J. VALENTINI, ESQUIRE ADAM J. PANTANO, ESQUIRE Identification Nos.: 58261/85261 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103-2978 411.21461 Attorneys for Defendant, Liberty Land Transfer TODD GIBSON and DIANE GIBSON LIBERTY LAND TRANSFER COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-2550 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned attorneys as counsel for defendant, Liberty Land Transfer. Dated: ~,~3 BY: Respectfully submitted, DEASEY, MAHONEY & BENDER, LTD. ADAM J. PANTANO, ESQUIRE Attorneys for Defendant, Liberty Land Transfer DEASEY, MAHONEY & BENDER, I.TD. SUITE 1300 · 1800 JOHN E KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 Kenneth L. Joel, Esquire Attorney I.D. No. 72370 Stephanie E. DiVittore, Esquire Attorney I.D. No. 85906 RHOADS & S1NON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17101 (717) 233-5731 Attorneys for Plaintiffs TODD GIBSON & DIANE GIBSON, Plaintiffs LIBERTY LAND TRANSFER, Defendant : iN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CiVIL ACTION - LAW : NO. 03-2550 : JURY TP&AL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER 27. The allegations of Paragraph 27 of Defendant's New Matter do not require a response. To the extent a response is required, Plaintiffs Todd and Diane Gibson ("Gibsons") incorporate their responses to Paragraphs 28 through 42 below. 28. The allegations contained in Defendant's New Matter Paragraph 28 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 29. The allegations contained in Defendant's New Matter Paragraph 29 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 4853981 30. The allegations contained in Defendant's New Matter Paragraph 30 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 31. The allegations contained in Defendant's New Matter Paragraph 31 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law. it is specifically denied and strict proof thereof is demanded at the time of trial. 32. The allegations contained in Defendant's New Matter Paragraph 32 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 33. The allegations contained in Defendant's New Matter Paragraph 33 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 34. The allegations contained in Defendant's New Matter Paragraph 34 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 35. The allegations contained in Defendant's New Matter Paragraph 35 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 36. The allegations contained in Defendant's New Matter Paragraph 36 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 37. The allegations contained in Defendant's New Matter Paragraph 37 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 38. The allegations contained in Defendant's New Matter Paragraph 38 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 39. The allegations contained in Defendant's New Matter Paragraph 39 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. 40. Denied. It is specifically denied that the Gibsons did not sustain damages as a result of the Defendant's conduct as set forth in the Gibsons' Complaint. By way of further answer, the Gibsons incurred damages as a direct result of the Defendant's negligence. 41. Denied. It is specifically denied that the Gibsons failed to mitigate the damages incurred as a result of the Defendant's negligence. By way of further answer, the Gibsons mitigated their damages as required by Pennsylvania law. 42. The allegations contained in Defendant's New Matter Paragraph 42 constitute conclusions of law and, therefore, no response is required. To the extent any allegation is deemed not to be a conclusion of law, it is specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiffs Todd and Diane Gibson respectfully request that this Court enter judgment in their favor and against Defendant Liberty Land Transfer and further request that this Court award Plaintiffs their costs, including attorneys' fees and such other relief as allowed bylaw. Respectfully Submitted, RHOADS & SINON LLP By: Kenneth L. Joel, Esquire Stephanie E. DiVittore, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorney',; for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this 27th day of August, 2003, a true and correct copy of the foregoing Plaintiffs' Reply to New Matter was served by means o['United States mail, first class, postage prepaid, upon the following: Gerald J. Valentini, Esquire Adam J. Pantano, Esquire Deasey, Mahoney & Bender, Ltd. 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, PA 19103-2978 DEASEY, MAHONEY & BENDER, LTD. BY: GERALD J. VALENTINI, ESQUIRE ADAM J. PANTANO, ESQUIRE Identification Nos.: 58261/85261 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103-2978 411.21461 TO: ALL COUNSEL YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. ADAM J. PANTANO, ESQUIRE Attorney for Defendant, Liberty Land Transfer Attorneys for Defendant, Liberty Land Transfer TODD GIBSON and DIANE GIBSON V. LIBERTY LAND TRANSFER COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO. 03-2550 JURY TRIAL DEMANDED DEFENDANT, LIBERTY LAND TRANSFER'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Defendant, Liberty Land Transfer (hereinafter "Answering Defendant") by and through its counsel, Deasey, Mahoney & Bender, Ltd., hereby respond to Plaintiff's Complaint and avers, upon information and belief in support of the same, as follows: 1. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 2. Admitted. 3. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph. DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 " 1800 JOHN F. KENNEDY BOULEVARD PHILADELPHIA, PA 19109-2978 The same are, therefore, denied and strict proof thereof is demanded at time of trial. 4. Admitted in part. Denied in part. It is admitted that Answering Defendant preformed various functions related to Plaintiff's purchase of property. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 5. Admitted in part. Denied in part. It is admitted that Answering Defendant preformed various functions related to Plaintiff's purchase of property. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 6. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the troth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, the averments contained in this paragraph refer to a written document which speaks for itself and therefore no answer is required. 7. Admitted in part. Denied in part. It is admitted that Answering Defendant preformed various DEASEY, MAHONEY & BENDER, L'rO. SUITE 1300 1800 JOHN F. KENNEDY BOULEVARD * PHILADELPHIA, PA 19103-2978 functions related to Plaintiff's purchase of property. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 8. Admittedinpart. Denied in part. Itis admittedthatAnsweringDefendantpreformedvarious functions related to Plaintiff's purchase of property. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 9. Denied. Answering Defendant denies theavermentscontainedinthisparagraphastheystate conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief' as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 10. Admitted in part. Deniedinpart. ItisadmittedthatAnswering Defendantpreformedvarious functions related to Plaintiff' s purchase of property. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, DEASEY, MAHONEY & BENDER, LTD, SUITE 1300 * 1800 JOHN E KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 however, Answering Defendant are without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, the averments contained in this paragraph is referred to a written document that speaks for itself and therefore no response is required. 11. Admitted in part. Denied in part. It is admitted that Answering Defendant preformed various functions related to Plaintiff's purchase of property. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, the averments contained in this paragraph is referred to a written document that speaks for itself and therefore no response is required. 12. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the troth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 13. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant are DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 * 1800 JOHN F. KENNEDY BOULEVARD · [ HILADELPHIA, PA 19103-2978 without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 14. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 15. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 16. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. 17. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN E KENNEDY BOULEVARD * PHILADELPHIA, PA 19103-2978 Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, the averments contained in this paragraph is referred to a written document that speaks for itself and therefore no response is required. 18. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, the averments contained in this paragraph is referred to a written document that speaks for itself and therefore no response is required. 19. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. By way of further response, the averments contained in this paragraph is referred to a written document that speaks for itself and therefore no response is required. COUNT I - NEGLIGENCE 20. Answering Defendant hereby incorporates by reference its responses to the allegations contained in paragraphs 1 through 19 of Plaintiff's Complaint, as if the same were set forth herein at length. DEASEY, MAHONEY & BENDER, L'rD. SUITE 1300 · 1800 JOHN F KENNEDY BOULEVARD ,, PHILADELPHIA, PA 19103-2978 21. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 22. Denied. Answering Defendant denies the averments cont~dned in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 23. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of' Answering Defendant caused or contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. By way of further response, it is specifically denied that Answering Defendant: a. failed to discover the right away agreement was fully executed; b. failed to discover that pursuant to the June 25, 11999 court order, the parties were obligated to discontinue the equity action; c. failed to properly advice the Gibsons regarding fhe proper course of action; and d. failed to act in the best interest of the Gibsons. 24. Denied. Answering Defendant specifically denies that it was negligent, careless and/or reckless in any way, and that any such conduct on the part of Answering Defendant caused or DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 contributed to the cause or occurrence of the accident described in Plaintiff's Complaint or to any injury, damage and/or loss to the Plaintiff, the existence of which is denied. To the contrary, Answering Defendant acted reasonably and with due care at all times and its conduct neither caused nor contributed to injury or loss, if any, by Plaintiff. Should any of the allegations in this paragraph of Plaintiff's Complaint be deemed factual, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the troth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at trial. 25. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 26. Denied. Answering Defendant denies the averments contained in this paragraph as they state conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Should any of these allegations be deemed factual, however, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained therein. The same are, therefore, denied and strict proof thereof is demanded at time of trial. WHEREFORE, Answering Defendant, Liberty Land Transfer, demands judgment in its favor and against all parties together with attorneys fees, interest and costs and whatever further relief this Honorable Court deems appropriate under the cimumstances. NEW MATTER By way of further answer to Plaintift~s complaint, Answering Defendant, Liberty Land Transfer, avers the following New Matter: 27. Answering Defendant, Liberty Land Transfer, incorporates herein by reference each of their DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN E KENNEDY BOULEVARD " BHILADELPHIA, PA 19103-2978 answers and averments in response to paragraphs 1 through 26 above as though same were fully set forth herein at length. 28. Plaintiffs complaint fails to state a claim upon which relief can be granted. 29. Plaintiffs claims are barred by the applicable Statute of Limitations. 30. Plaintiffs claims are barred by the Doctrine of Laches. 31. This Court lacks subject matter jurisdiction over this matter. 32. This Court lacks personal jurisdiction over Defendant, Liberty Land Transfer. 33. Service was improperly made upon Defendant, Liberty Land Transfer. 34. Any act and/or omissions on the part of this Answering Defendant which are alleged to constitute negligence were not substantial causes or factors which led to the subject incident, and did not result in the losses alleged to have been sustained by Plaintiff. 35. The incident and damages alleged in Plaintiffs complaint were caused solely by the negligence of Plaintiff and are therefore barred. 36. Plaintiffs claims are barred and/or limited pursuant to Pem~sylvania Comparative Negligence Act, 42 Pa.C.S.A. {}7102. 37. The subject incident and the alleged damages, if any there were, sustained by Plaintiff were not caused by any negligence, carelessness or recklessness on the part of this Answering Defendant, but instead were caused solely by the negligence, carelessness and/or recklessness on the part of some third party or parties other than this Answering Defendant, over whom Answering Defendant had no control. 38. Plaintiffs actions and/or omissions were negligent and such negligence was a superseding, intervening cause of the alleged accident which bars and/or limits all claims by Plaintiff arising therefrom. DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN F. KENNEDY BOULEVARD " PHILADELPHIA, PA 19103-2978 39. Answering Defendant avers that Plaintiff assumed the risks of any and all damages of which he complains. 40. Plaintiff did not sustain any damages as a result of the alleged incident referred to in Plaintiffs complaint. 41. Plaintiff has failed to mitigate any damages that he allegedly sustained. 42. The accident was caused by the acts and/or omissions on the part of some third person or persons over whom Answering Defendant had no control or right to control. WHEREFORE, Answering Defendant, Liberty Land Transfer, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, together with attorney's fees and such costs as this Court deems reasonable. Dated: September 2, 2003 BY: Respectfully submitted, DEASEY, MAHONEY & BENDER, LTl). GERALD J. VALENTINI, ESQUIRE ADAM J. PANTANO, ESQUIRE Attorneys for Defendant, Liberty Land Transfer DEASEY, MAHONEY & BENDER, LTD. SUITE 1300 · 1800 JOHN R KENNEDY BOULEVARD · PHILADELPHIA, PA 19103-2978 VERIFICATION I, , make this verification subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. The attached Answer with New Matter is based upon information which I have furnished to my counsel and information which has been gathered by counsel in preparation for the defense of this lawsuit. The language contained in the document is that of counsel and not mine. I have read the Answer with New Matter as drafted by counsel and, to the extent it is based upon information which we ]have given to our counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter are that of counsel, I have relied upon our counsel in making this verification. CERTIFICATE OF SERVICE I, ADAM~ PANTANO, ESQUIRE, hereby certify that I have served upon all person(s) listed below a true and correct copy of Defendant, Liberty Land Transfer Answer to Complaint with New Matter in this matter by first class postage prepaid mail. Kenneth L. Joel, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 DEASEY, MAHONEY & BENDER, LTD. ADAM J. PANTANO, ESQUIRE Date: September 2, 2003 DEASEY, MAHONEY & BENDER, lTD. SUITE 1300 · 1800 JOHN R KENNEDY BOULEVARD ~' PHILADELPHIA, PA 19103-2978 ~ Kenneth L. Joel, Esquire Attorney I.D. No. 72370 RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17101 (717) 233-5731 Attorneys for Plaintiffs TODD GIBSON & DIANE GIBSON, Plaintiffs LIBERTY LAND TRANSFER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 03-2550 JURY TRIAL r)EMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the docket in this matter, satisfied, discontinued and ended pursuant to Pa. R. Civ. P. 229. Respectfully submitted, RH~ SINON LLP Kenneth L. Joe~ One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 518971.1 CERTIFICATE OF SERVICE I hereby certify that on November 30, 2004, a tree and correct copy of the foregoing Praecipe to Discontinue was served by means of United States mail, first class, postage prepaid, upon the following: Adam J. Pantano, Esquire Deasey, Mahoney & Bender, Ltd. 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, PA 19103-2978