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HomeMy WebLinkAbout99-03292 ?9 `.t q6' ?a c' t r> y: 00M A,. C? d1- i _ 2 1( ` ,V ??VJJ N n FF w ?^ 2: Ep, ro a ? ? a v a .¢ a ro L3oQ? ,?, 5 wo a a z z 0< O 1 E N> N H ejf '" Z o E 2 Qz P 4-1 H W a ia1 q a ?Z?w$ a xHO a•+ oo (a w Wo?ar a aa c z<??s W9U ? U 2: a •? D E cq w z = W E? n E U Z W a E 40 N H E4 0 c7 z> Z o W UO ro o Z u % Y 3 ROBERT L. WITMER, Plaintiff VS. SCOTT T. POLLY and CARLA S. POLLY, Defendants N O T I C E IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW NO. Y7 - T O D E F E N D You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court House Court Administrator 1 Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 Mary A., Etter Dissinger, Esquire Attorney for Plaintiff ROBERT L. WITMER, Plaintiff VS. SCOTT T. POLLY and CARLA S. POLLY, Defendants 1. Plaintiff residing at 4 Pennsylvania. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA : CIVIL ACTION - LAW . No. 99. 3.1 9-z e // - COMPLAINT is Robert L. Witmer, a citizen of Pennsylvania, Carleton Court, Camp Hill, Cumberland County, 2. Defendants are Scott T. Polly, a citizen of Pennsylvania, residing at 5316 Oxford Circle #14, Mechanicsburg, Cumberland County, Pennsylvania and Carla S. Polly, a citizen of Pennsylvania, residing at 8 South 15th Street, Camp Hill, Cumberland County, Pennsylvania. 3. On or about August 16, 1996, the parties hereto entered into a contract for a sale of real estate (Hereinafter referred to as "agreement"), the terms of which are set forth in the Exhibit "A" attached hereto, which is incorporated herein by reference thereto as if set forth at length. 4. According to this agreement, Defendants agreed to pay installments of one thousand dollars ($1,000.00) per month. 5. On or about December 1998, Defendants stopped paying this monthly amount. 6. Defendant, Carla S. Polly, notified Plaintiff, via a letter dated November 14, 1998, that she intended to vacate the demised premises and that she did not intend to continue with payments. \ I. 7. As of this date Defendants have failed and refused to continue with monthly payments. I`. COUNT I BREACH OF CONTRACT I•' a. Paragraphs number 1 through 7 are incorporated herein by reference thereto as if set forth at length. 9• After Plaintiff took repossession of the demised premises, he became aware of damage to the demised premises, which include but is not limited to the following: a. Stains and mildew buildup on the interior of all windows and walls; b• Failure to properly repair garage roof; C. Water damage to interior breezeway ceiling because of improperly repaired garage roof; d. Removal of privacy fence and gate; e. Damage and/or removal of the carpeting in the first 1 floor living room, hallway, two upstairs bedrooms, and j' basement carpet; i f. Removal of doors from the basement den closet; g. Removal of duct vent cover in the basement bar room; h. Removal of a dehumidifier in basement washroom; ` i. Removal of shelf in the basement; I I )• Removal of closet in upstairs bedroom; l 1= 4 i ?t k. Removal of wallpaper leaving rough unpainted walls; II 1. Poor painting of walls; M. Removal of an outdoor brick barbecue area; n. Rear lawn severely damaged. 10. As a direct and proximate cause of the damage set forth above, Plaintiff was forced to sell the real estate at a reduced price, suffering great financial loss. 11. According to presettlement possession addendum to agreement of sale, Paragraph 3, Defendants were to pay all utility bills, including, but not limited to, electricity, garbage collection, cable TV, water, sewer, gas, telephone, contents and liability insurance, etc. 12. Defendants failed to pay the sewage for the last three years in breach of the agreement. 13. The Defendants have failed to fulfill their obligations under the terms of the contract and have moved out of the premises on or about December 15, 1998 without fulfilling the terms of the contract. WHEREFORE, Plaintiff Robert L. Witmer, demands judgment against Defendants, Scott T. Polly and Carla S. Polly, in an amount under $25,000.00, an amount not in excess of jurisdictional requirements requiring compulsory arbitration. COUNT II LOSS OF RENT 14. Paragraphs number 1 through 17 are incorporated herein by reference thereto as if set forth at length. 15. As a result of Defendants' breach of the agreement Plaintiff was denied the opportunity to rent said premises to another renter. 16. As a direct and proximate result, Defendants failure to vacate the premises, Plaintiff was denied rent for the period which Defendants were in possession of the property. WHEREFORE, Plaintiff, Robert L. Witmer, prays this Honorable Court to award him reasonable rental for the period of time which Defendants held the property. Respectfully submitted, DISSINGER & DISSINGER a/ Etter DissingarrF`ulre Attorney for Plaintiff Supreme Court ID # 27736 28 North 32nd Street Camp Hill, PA 17011 717-975-2840 VERIFICATION I, Robert L. Witmer, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Robert L. Witmer, P1 intiff is '` !'1VtCL'L')VSL'IV1 1'V11, 1KILL OFALL Ayr\ll rUA%`LrAt10g1 'IV l1L'AL L'O1[11 L' Thi: m recommended and-approved for, but not rt ;led to, use by m,.,ibers of the Greater Harrisburg Association of 1e.SALTORSO AGENT FOR SELLER SUB AGENT FOR SELLER AGENT FOR BUYER EPA 44a ( RC-A u Assoc. . LICENSED PA BROKER PA. LICENSED BROKER . This Agreement made this day of r LICENSED BROKER L L PRINCIPALS Between, 4c..t' 199E (residing at /90 2 ) hereinafter called Seller, and ? - (residing at Y11 7Jtt a ie) Qom( jA pn /701 ?? hereinafter caucd IIuycr. ) 2. PROPERTY: Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase: ALL DAT ERTAIN Lot or piece of g ound with buildinggs and improvements thercon erected, if any, known as: 3tJ9 JZo. / 7 . t _ZJr'!f l/R /Jn / ' 3. LONIN :Zoning Classificat Failure of this Agreement to contain the zoning classifici is zoned solely or primarily to permit single-family dwelli, deposits tgndered by the Buyer shall be returned to the 4. TER ::(a) Purchase Price 0 /• (i to be paid by the IIuycr as follows: gh loni (b) DEPOSIT Check H, Cash O, Nate ? m.Usaah __._-"'. _.. ................ if Note, to be redeemed on or before the day of _ (c) ADDITIONAL DEPOSIT due on or before the day of (d) BALANCE OF PURCHASE PRICE at sculemenl (cash, callfred check, and/or mortgage funds) ..................... ept in cases where the property (or each parcel thereof, if subdividable) render this Agreement voidable at the option of the Buyer and if voided fithout a requirement of court action. $. 1. (e) Written approval of "J to be orsor before the 14) day of (f) Settlement to be made on or before the 31" day o 19 (g) The fallowing shall be appportioned pro-rata as of and at time of sculemc and homeowner association fret if any, water and/or sewer rents If any, led and assessed, rents, Interest on Mortgage assumptions, condominium fecs evenly unless otherwise provided herein. together with any other licnahk municipal services. All Realty Tra ---_._.__..._.. be divided 5. PROPERTY SETTLEMENT CONTINGENCY: This agreement is subject to the settlement of Buyer's properly located at -1114 . on or 6. FINANCING CONTINGENCY: This agreement is subject to the financing as followsefore ,(a) MPRINCIPAL AXIMUMI MOIALTS /01//SOO TYPE MINIMUM TERM_ 30 IN .?f.?. TEREST RATE. R %s MAXIMUM TOTAL POINTS, INCLUDING LOAN ORIGINATION FEE, TO BE PAID BY THE Bl}YER;_I_ TERMINAL DATE for Obtaining Financing Commitment /.S-, ,;7001 as hcreln provid d, this Agrmment shall be NULL ANDKVOID and albut cannot l deposit monies shall be «Iurt ed for obtaining to the Buyer on Buyer's or before dale or settl ment as asm be obtained aubJed however to the provisions in Paragraphs 6(b) and 6(c). (b) .Buyer shall make a completed application to a responsible lending institution for the said loan within _( calendar days from the Seller's approval hereof. Should the Buyer fail to make such completed application within the specified time, it shall be at the option of the Seller, within five (5) calendar days Ihereafin to. (i) Dttlere this Agreement NULL AND VOID, at which time, all monies paid on account will be forfeited to Seller as liquidated damages, subject to the Rules and Regulations of the Pcnnsyivania Real Estate Commission, or (ii) In absence of written notice to Ih<Buyer by the Seller declaring this Agreement NULL AND VOID, the condition and contingency provided for in this Paragraph, logdher with any other Bnancing contingencies that may be herein or endorsed hereto, shall no longer prevail, and this Agreement shall remain effective according (c) Shcerar As ant msust rtteiv eewritlenXOmmitmerlt valid until the date of satlcmwere en4 for the said hereof. n, on or before the terminal date as sp is not furnished wish the trims as apeciBW hcreln, or on other terms accepted in writing by the Buyer, on or before the spified date. Sella If the said commitment el Ihar dale, or any other lime lhercafter, during the term of this Agrecmenl, canal, but not beyond the date of receipt of thhe commitmnt by the Seller. or Agent, to declare this Agreement NULL AND VOID, by written notice to the Buyer ofhit/her decision to cancel, al which rinse all deposit monies paid on account shall be returned to the Buyer, subject to the payment required, if any, provided for in Paragraph 12(b): (i), (ii), and (iii), (d) Seller hereby agrees to permit InspM(cns by authorircd appraisers, reputable certifiers and/ar Buyer as may be mquircd by the lending Institution or Insuring agencies. (c) Seller hereby agrees la pay additional mortgage discount points and/or Ion origination fee in cue of a buyer obtaining financing from a lending institution requiring any one or all of aforesaid Pecs, providing the total of said fm does not cxcecd __%. of the amount of the mortgage. 7. STATUS OF WATER AND SEWER: Seller warrants that this proprly is serviced by • ?.w.t-e water and -?'a... sewer. Further, Seller warrants That Ihcsc systems are fully paid for and, as of the date of thi greement are in setisraclory operating condusan. If eh 1c. aforesaid .M. ssic is pill vatq Seller warrants that he/she has no notice from the municipality or from municipal suthoriiics that public water and/or sewer will be assessed or installed, a. MUNICIPAL IMPNOVEMENTS: Scllcr has no notices of municipal improvements (such as sidewalks, curbs, ate.) except Access to a public road may require Issuance of a Highway occupancy permit from the Department of Transportation. 9. SPECIAL CLAUSES: 10. ATTACHED ADDENDA are made a part of this Agreement: y U Dual Agency Consent U Home inspection U Other(s): _ I L PERSONALTY: All existing plumbing, heating, air-conditioning and a Pan therm(, nd other Permanent fixtures, as well as all ranges, lam sash and/or doors, shades, awnings, venetian blinds, couplings for ai rods, drapery rod hardwares cures,,, rod, ...r,.:.._ -- --- _ 11 .- deliver survive J?l ??' ?:ava - 6A i Infestation IlKadon Disclosure U Private Water/On-Site Sewage UFHA/VA Ling fixlurcs (including chandcliert and "ding fang ad sydems appunenanl therein sad.forming ' tubs, T.V. anleanas, masts and rotor systems uri on, together wnh wall io wall carpeting, scrttns, storm c washers and dryers, etc. radiator covers, minim, water mhenrs, kitchen cabineu, drapery shubbcry , plantings now in or on property, amit door oMnera, sheds; if any, canters spedfi<dly one of the about mentioned items shall be removed or aubstitumd by the Seller from premlus at on the PM es at time of settlement art dso included under this Agree ot. Scllcr hereby warnnh 'agraphany other fixture or item[ of Iersunaby sP..Ily scheduled tp be included in ihb rrltttr¢al rysiems and equipment and apsdiassces to be in mover wnAlnn n.n.r ., rm.,,..-.n got Wrile in This EXHISM, i I ' i 1 I,) The pretenses are to be conveyed in fee limp' special warranty dad,finetixtd clear of all liens, encumbrance easements, EXCEPTING HOWEVER, the following: Existing building rtstrictions, ordinances,e :eats of roads, privilcga or rights of public service companies; .y; or casements or restrictions visible upon the ground, otherwise the title to the above described rm. estate shall be good and marketable or such as will be insured by a reputable title insurance company at The regular rates. (b) The Buyer will pay for the following: I. ' ' (i) The premium for title insurance, mechanics lien insurance and/or title search, or ree for cancellation of same, if any. (it) The premium for [load insurance and/or fire insurance with extended coverage, insurance binder charges or cancellation fee, it any. (Iii) Appraisal fees and charges paid in advance to mortgagee, if any. (iv) Buyer's normal settlement costs and accruals unless otherwise staled herein. (c) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney for the preparation or an adequate legal description or the premises (or the correction thereoQ, shall be secured and paid for by the Seller. However, any survey or surveys desired by the Buyer or required by his mortgagee shall be secured and paid for by the Buyer. (d) in the event the Seller is unable to give a good and marketable title or such as will be insured by a reputable title company, subject as aforesaid, Buyer shall have the option of taking such title as the Seller can give without abatement of price or of being repaid all monies paid by the Buyylr to the Seller on account of the purchase price and the Seller will reimburse the Buyer for any costs incurred by the Buyer for those Items specified in Paragraph 12(bl items (i), (it). (III) and in Paragraph 12(c); and In the latter event there shall be no further liability or objection on either of the parties hereto and this Agreement shall become NULL AND VOID. 13. PAYMENT OF DEPOSIT: Deposits, regardless of the form of payment and the person designated as payee, shall be paid to Agent for the Sella, who their retain them in an escrow account until consummation or termination of this Agreement in conrormdy wish all applicable laws and regulations. Agent for the Seller may, at his or her sole option, hold any uncahal check tendered as deposit, pending the acceptance of this offer. ..' . . If there is a dispute between the Buyer and the Seller over who is entitled to the deposit, Agent will not be responsible to resolve that dispute and will not be liable to either Buyer or the Seller for refusing to release the deposit without an adequate written agreement between Buyer and Seller or a valid court order. Buyer and Seller agree that, in the event the Agent and/or Subagent are/is joined in litigation for the return of deposit' monies, the Agent's and/or Subagent's reasonable attorney's fca and costs will be paid by the party joining the Agent or Subagent. 14. POSSESSION AND TENDER: (a) Possadon Is to be delivered by deed, keys and physical possession to a vacant building (if any) al day and time of settlement, or by deed and assignment or existing leased at the time of settlement if premises is tenant occupied at the signing of this Agreement, unless otherwise specifieed herein. Buyer will acknowledge existing lease(s) by Initialing said )me(t) at time of signing of this Agreement of Sale if tenant occupied. (b) Seller will not enter into any new lease(s), written extension of existing trie(s), if any, or additional Icasc(s) for the premises without express wdittn consent of the Buyer. (c) Formal tender of an acculed deed and purchase money is hereby waived. (d) Buyer reserves [lie right to make a presettlement Inspection or the subject premises, and will execute appropriate documentation of such inspection: 15. RISK OF LOSS: (a) Seller shall maintain the property (including all items mentioned in paragraph 111 herein) and any personal property specifically scheduled herein In its present condition, normal wear and tau excepted. (b) Seller shall bear risk of loss from fire or other casualty until time or settlement. In the event of damage to the property by fire or other casually, Buyer shall have the option of rescinding this agreement and receiving hand money paid on account or of accepting the property in its then condition with the proceeds of any Insurance recoveryy obtainable by Seller. Buyer is hereby notified that he may insure his equitable interest in this property as or the time of the acceptance or this agreement. 16. REPRFSEN'FAT1ON5: It is understood that Buyer has inspected elm property, or hereby waives the right to do so and be/she hu agreed to purchase It as a result of such Inspection nqd not because of or in reliance upon any representation made by the Seller or any other officer, partner or employee of Seller, or by the agent or the Seller or any of the latle0s salespersons and employees, or by a cooperating Broker, if any, or any or his/her salespersons and employees and that he/she has agreed to purchase it in its present condition unless otherwise specified herein and further acknowledges that the aforementioned parties are not qualified to render an opinion on construction, engineering, or environmental matters and that the buyer has been advised that he/she may require or wish to seck the mistance of experts in those fields. It is further understood that this Agreement contains the whole agreement between the Seller and Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement shall not be altered, amended, changed or modified except in writing aeculed by the putla hereto.. 17. RECORDING: This agreement shall not be recorded in the Office for the Recording of Deeds or in any other office or place of public record, and if Buyer shall record this . agreement or cause or permit the same to be recorded, Seller may, at his/her option, elect to trat such act as a brwch of this agrecmenl. 18. ASSIGNMENT: This Agreement shall be binding upon the respalive heirs, executors, administrators, successors and, to the extent assignable, on the assigns of the parties . hereto, it being expressly understood, however, that the Buyer shall not transfer or assign this Agreement without the written consent or the Seller being first obtained. 19. NON-LIABILITY OF AGENT: Except as maybe provided by a separate agreement or addendum to this Agreement. Agent(s) or Sub-Agcnt(s), if any, are representing Scaler, ' not the Buyer. - ' It 11 exprady understood and agreed between the parties hereto that the herein named agent. his/her salespersons and employees or any officer or partner or agent and any cooperating broker and his/her salespersons and employees and any officer or partner of the cooperating broker are acting a agent only, in bringing the Buyer and Seller together, and will in no case whatsoever be held liable jointly or severally to either party for the performance or any item or covenant of this Agreement or for damages for the nonperformance Iheraf. 20. DEFAULT - TIME 15 OF THE ESSENCE: The said time for settlement and all other items referred to for the performance of any of the obligations of this Agreement arc hereby agreed to be of the essence of this Agreement. Should the Buyer: (a) Fail to make any additional payments as specified in Paragraph 4, (b) Furnish false or incomplete information to the Seller, the Seller's agent, or the mortgage lender, concerning the Buyer's legal or financial status, or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment, or (e) Violate or fail to fulfill and perform any or the terms or conditions of this Agreement, then in such case, all deposit mania and other sums paid by the Buyer on account of the purchase price, whether required by this Agreement or not, may be retained: . (i) by the Seller on account of the purchase price, should the seller demand the full purchase price, or (ti? as monies to be applied to the Seller's damages, or (Ifs) as liquidated damages for such breach, as the Seller may that. and in the event that the Seller elects to retain the monies as liquidated damages in accordance with Paragraph 2(h(c)(iil), the Seller shall be released from all liability or obligation as this Agreement shall be NULL AND VOID. 21. RECOVERY FUND: A real estate recovery fund exists to reimburse any persons who has obtained a final civil judgment against a Pennsylvania real estate licensee owing to fraud, misrepresentation. or deceit In a real estate transaction and who has been unable to collect the judgement after exhausting all legal and equitable remedies. For com- plete details about the fund, call (717) 1834854. 22. REAL ESTATE DISPUTE RESOLUTION SYSTEM: Any dispute or claim arising out of or relating to this Assailant, the breach or this Agreement or the service provided in elation to this Agreement shall be submitted to mediation in accordance with the Rules and Procedures of the Real Estate Dispute Resolution System. Disputes shall include repreeenlations made by the buyer, seller, or any broker, agent, subagent, or other person or ably in connection with the sale, purchase, finmcing, conditions, or other aspect of the property to which this Agreement pertains including, without limitation, allegations of concealment, misrepresentation, negligence and/or fraud. The provisions of this paragraph relating to mediation shall survive settlement on the subject property or earlier termination of this Agreement. Buyer and seBa acknowledge that they have received, road, and understand the standard announcement brochure and rula and pleadures for the Rai Estate Dispute Rcsolu• thin System. 23, DESCRIPTIVE HEADING: The descriptive headings used herein ere for convenience only and they are not intended to indicate all or the matter in the sections which follow them. Accordingly, they shall have no effect whatmever in determining the rights or obligations of the parties. 24. AGREEMENT: THIS AGREEMENT CONTAINS THE WHOLE AGREEMENTBETWEEN THE SELLER AND BUYER. THERE ARE NO OTHER TERMS, OBLIGA• TIONS, COVENANTS, REPRESENTATIONS, STATEMENTS OR CONDITIONS, ORAL OR OTHERWISE, OF ANY KIND WHATSOEVER CONCERNING THIS SALE, EXCEPT AS ATTACHED TO THIS CONTRACT. [Do Not Write in This Space] This is a legally binding contract; it not understood, consult your attorney. Fu Stateaant: Thu Document may bt executed by the Buyer or Seller and transmitted to the other for accution by Weiss. When executed and dclivaed in such mmner, this Document will be binding as though executed by she parties on the original document. 1 APPR VALBB/yY BUYER: In witness whaaf, the parties lieeto, intending to he legally bound hereby, have (herelnda art Ili an d eels the dry and year first above written. 4e otWil.sr,,. BUYER ? (SEAL) WilryISS AS 70 UMN •/ ItUYCR (SEAL) Wit AS7---- . ?G Y or 19 ' APPROVAL BY SLLLt71: Shca(t) hn rhY aDNuvn cantata this des (SEAL) T SCLLLR {KtF FLMUC W 1NL55 AS TO b1LLl:R AGENT BY MAY Sf"jes-e.. SELLER -(SEAL) HSA 110 J/9e PRE-SET•TLEME, POSSESSION ADDENDUM TO .,.GREEMENT OF SAFE This form recommended and approved for, but not restricted to, use by members of the Greater Ilarrisburg Association of REALTORS`. ?J,''?/6 f L DATE Olr SALES AGREEMENT: -+?=°?-u-C RE: PROPERTY: ? U - BUYER: In considcralion'of Purchase Price and the nwtutal promises contained in this Addendum, the Seiler and Buyer agree that ancy Buyer may take possession 1996 , hereinafter rOccupancyaDate, under the followingpter s and rconditions: sum held 1. Deposit. Prior to the Occupanc Date, the Buyer shall deposit tlas anaddi onal alesf deposit$_.bq 49 the termsof the Agree- merow account mint for the Sale and Purchase of R at L.'I'his Additional Sales Deposit shall be credited to the Buyer at the time it of Agreement. to be held by Seller. Buyer shall also pay, prior to the Occupancy Date, a security/damage deposit of $ This security/damage deposit will be returned to Buyer at Settlement. If Settlement does not take place, the unused por- tion of the security/damagc deposit will be returned to Buyer within 30 days from a) the date Buyer vacates the Property, or b) the last date agreed to for Settlement, whichever is later. This security/damage deposit may be used to pay any past M. due rent, damages not repaired by Buyer, or to pay other money damages owed by Buyer t Seller. Datc until Settlement. f. 2. Fcc. The Buyer agrees to pay to the Seller the sum of $„ t. incinth's fee payable on or before the Occupancy cacti month. Tile fee shall be paid directly Seller j Thereafter, agrees to pay the fee in monthly installments wU°Phe first the (cc will be paid in advance, on the I day of by mail A late fee will be charged if received by the Sclicr with a postmark dated after the -.5-- day 1 of cacti month. At Settlement, Seller will return any rent collected for clays falling after Settlement. If Settlement does not take place, Buyer will continue to pay the fee as aforesaid until Buyer fully vacates the premises and restores posses- sion to Seller in the same condition as existed on the Occupancy Date. 3. Utilities. a. Utility Charges. Buyer shall pay from and after the Occupancy Date all operating and utility charges connected with one the use of the Property, including but not limited to electricity, garbage collection, cable sewage, contents and liability insurance, associationYcondominium•fees, ctc. Seller will only pay and Seller's insurance (Paragraph 10, below), until settlement. b. Transfer cp0O15• Buyer agrees to place the utility accounts and other services in Buyer's name as of the Occupant' . Date. lf'-any-utility-or-servicaprovider-will-not•apcn-an-account-with-Buyer, the related charges will be pro-rated at ! settlcment-bascd-o n-t he-Oceu p an ey-Date. 4. Proper y Inspection. Buyer acknowledges that Buyer: (??SJ a, [ I has made a complete inspection of the Property; or b. [ ) will make a complete inspection of the Property on or before the Occupancy Date. lngranted speetoln, Buyer wilie ompletcatnd-For tile Sale and urchase of Real sign a-Prc-Settlement Walk-Th This inspection A44the ic-imc-of-this-Propertyinspection paragraph 14 oug -ktspccUon-Form. $ .Buyer's essence. Should hBuyer fail or refuse to perform under the rims of this Addendum or of the Agreement for the Sale and Purchase of Real Estate of which it is a part: a. Buyer will immediately vacate the Property and Seller shall be entitled t mmedi to possession. Buyer agrees that Seller may institute proceedings to recover possession without providing prior notice, retain the pt rchas Deposiitt b Scllcr on account of this Addend mgor the Agreement of which iP sta part. Seiler may also other and the Additional Sales Deposit pursuant to the provisions of Paragraph 20 of the Agreement for the Sale and Pur- chase of Real Estate of which this is a part. c. Buycr shall pay to Seller all costs incurred in having Buyer removed from the Property including court costs and attorney fees. 6. Repairs. If, for any reason, Settlement does not take place, Buyer will repair all damages, completely clean the Property, and return it to Seller in the as good a condition as existed on the Occupancy Date. 7. Maintenance. Buyer agrees to maintain the Property in good condition, free of trash and debris, and to abide by all regula- tions of the Seller relative to the occupancy. S. Assignment. Buyer may not assign Buyer's rights under this Addendum or lease the Property to any party. 9. Conflict. The provisions of the Agreement for the Sale and Purchase of Rcal Property shall remain in full force and effect except for those provisions that are amended or superseded by this Addendum. c s Scllc will m a ntain fire the 10• Personal obtain insurance coverage for personal property rtyand Buyer'sll? bill ys r Buyer will ualty coverage and coverage for Seller's liability until settlement. It. Entry. Seller or Seller's agent may cntcr the Property at ?y\ 12. Pets. Pets [ro will / I tyc in tile event of emergency, otherwise o.?a weekly oasts with 24 hours prior notice to Ift51 uy= be allowed"on the Property prior to settlement. 13. Changes to Property. Buyer will not make any alterations, including painting or other improvements to the Property prior to settlement without the Seller's prior written permission. 14 Indemnification. harmless occupancy Seiler, the Agents and Brokers. front of the Property. in connection! therewith, claims, , actions that arse from, or occur during Buyer Buyer will defend Seller from all such suits and claims, and pay Seller's costs, including attorney fees and damages awarded. IS• cfax. Agreement. This Addendum may be executed by the When executed and delivered in such manner, this Buyer or be binding asdthoto tile ugh executed the execution tc parties on the original document. f-? Witness: Seiler: Date: ? ... Witness W iutc;r. .?? .rte=rY.,asr Witness: MM, Wh.?,M .4 • wihNr N. Mph W ,.x Seiler: Buycr. Buyer; Date: -- ----- Date: /-?---- Date: _d2! ??... .. ADDENDUM TO SALES AGREEMENT In reference to Agreement of Sale between oif Jl -" ,,-' X the Purchaser, and 11 The Seller, Dated L. ,-? /G /9 yE covering the real properly commonly known as 7-4 the undersigned Purchaser and Seller hereby agree to the following: The herein agreement, upon Its execution by both parties. Is herewith made an Integral part of the aforementioned Agreement of Sale. Dated: Dated: /C' 1914 Purchaser senor ?'- Purchaser pp / Seiler Witness Agent ' Witness Agent ROBERT L. WITMER, Plaintiff Vs. SCOTT T. POLLY and CARLA S. POLLY, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA NO. 3292 CZ Vii 1999 L. CIVIL ACTION - LAW RULE 1312-1.The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Mary A. Etter Dissinger, counsel for the Plaintiff in the above action respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the -Plaintiff in the action in less than $25,000.00. The counterclaim of the Defendants in the action is $1,100.00. The following attorney is interested in the case as counsel or is otherwise disqualified to sit as arbitrator: Mary Kollas Kennedy WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Mary A. Et er Dissing? Sga$re Attorney for Plaintiff 28 North 32nd Street Camp Hill, PA 17011 717-975-2840 ORDER OF COURT AND NOW, &Qsf , 1999, in consideration of the oing pet tion, 7xz&, eG/ , Esquire, ti?? - _ ____ -_?------- , Esquire, and 2 Esquire are appointed arbitrators in Bove- ptio ed action as prayed for. BY THE, COURT, 59OC7-1 ;iii !l:to1 I'•IC i ?,.IJI?I r PEA\I,.?l LU„?\';?1 ROBERT L. WITMER, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY : PENNSYLVANIA Vs. NO. 99-3292 Civil Term SCOTT T. POLLY and CARLA S. POLLY, ! CIVIL ACTION - LAW Defendants CERTIFICATE OF SERVICE 1, Mary A. Etter Dissinger, Esquire, hereby certify that on the date set forth below I served a true and correct copy of the foregoing Petition for Appointment of Arbitrators upon the attorney for Defendants, by First Class United States mail. addressed as follows: Mary Kollas Kennedy, Esquire KOLLAS AND KENNEDY 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 Date Mary A. Etter D ss nger,Esqu rj ?- :? C) C::: p <n „. ¢ lw GL 1. W ;1l(1 F- V) CJ u? i.U -1 o ?t ? .ROBERT L. WITMER Plaintiff Vs. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 CIVIL TERM CIVIL ACTION - LAW NOTICE OF HEARING BY BOARD OF ARB p You are hereby notified that the Board of Arbitrators appointed by the Court in the above captioned case will sit for the purpose of their appointment at the offices of James D. Bogar, Esquire, One West Main Street, Shiremanstown, Pennsylvania 17011 on Friday, January 21, 2000 at 8:30 a.m. Any party requesting a continuance will assume the responsibility of contact and notification of all parties to re-schedulo this hearing. James D. Bogar, Esquire David A. Greene, Esquire David A. Jones, II, Esquire Date: December 28, 1999 TO: Mary A. Etter Dissinger Dissinger & Dissinger 28 North Second Street Camp Hill, PA 17011 By es D. g r, Cha man qamof b trators s Mary Kollas Kennedy Kollas & Kennedy 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 Court Administrator ROBERT L. WITMER Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3292 CIVIL TERM IN RE: APPOINTMENT OF ARBITRATORS ORDER OF COURT AND NOW, October 22, 1999, the appointment of Leslie Fields, Esquire, as chairman of the arbitration panel in the above-captioned matter is vacated, and James Bogar, Esquire, shall be appointed in her stead. David A. Greene, Esquire and David Jones II, Esquire, shall remain as arbitrators. Leslie Fields, Esquire James Bogar, Esquire Court Administrator Co- r?L.-iC. 1 o??sl4 y? By the Court, F I c?,. :ryr` 99 OCT 25 (J-1 9* 12 c,uuN I'ENNSYLVAN!A h ROBERT L. WITMER Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 99-3292 CIVIL TERM IN RE: APPOINTMENT OF ARBITRATORS ORDER OF COURT AND NOW, October 22, 1999, the appointment of Leslie Fields, Esquire, as chairman of the arbitration panel in the above-captioned matter is vacated, and James Bogar, Esquire, shall be appointed in her stead. David A. Greene, Esquire and David Jones II, Esquire, shall remain as arbitrators Leslie Fields, Esquire James Boger, Esquire Court Administrator By the Court, CASE NO: 1999-03292 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WITMER ROBERT L VS. POLLY SCOTT T ET AL CHRISTOHPER EVANS , Sheriff CUMBERLAND County, Pennsylvania, who being duly or Deputy Sheriff of sworn according to law. says, the within NOTICE AND COMPLAINT was served upon POLLY SCOTT T defendant, at 16:44 HOURS, on the 3rd day of June 1999 at 5316 OXFORD CIRCLE # 14 MECHANICSBURG, PA 17055 CUMBERLAND County, Pennsylvania, by handing to SCOTT T. POLLY a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answ rs Docketing 18.00 Service 9.30 ???r4 2 Affidavit .00 Surcharge 8.00 n $3S DISSI/19 15R && DflSSINGER 06/0890 / J, by h ??."/??L y uepuz Sworn and subscribed to before me r?J " this Fl__ day of 19_ A.D. ?-7?-PYb `fTcSYTdF?`P. p the SHERIFF'S RETURN - REGULAR CASE NO: 1999-03292 P i COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WITMER ROBERT L VS. L POLLY SCOTT T ET AL I. BRIAN BARRICK Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT upon POLLY CARLA S was served defendant, at 18:55 HOURS, on the 7th day of June the 1999 at 8 SOUTH 15TH ST f CAMP HILL, PA 17011 County, Pennsylvania, by handing to MICHELLE POLLY (ROOMATE)RD a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing Her attention to the contents thereof. i + Sheriffs Costs: Docketing 6.00 So answers. Service 6.20 Affidavit 00 2 Surcharge . 8.00 R-IYlomas urine, S?ieri $2U 2U-D6%08?1ER & DIS?S LAGER c u Y e i Sworn and subscribe to before me this k'L?- day of rr, - 19 9g A.D. N lp } Z ; z n Wg<z° Y a o in ° Z O N n m 4xzn a g k LL J a o a f a u e wr ruo•.D+uu•amm•n moo oa wra bx l?'NOYVNYLW vNV1? Tv q NM4ND r lvpp u46 rn ROBERT L. WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION - LAW ORDER AND NOW, this day of 1999, upon consideration of Defendants Scott T. Polly and Carla S. Polly's Preliminary Objection raising the existence of an arbitration agreement it is hereby ORDERED that: Plaintiff, Robert L. Witmer, submit the dispute which is the subject of this action to arbitration in accordance with the arbitration provision of the parties' contract. Further, that all proceedings in this action are stayed pending arbitration. BY THE COURT: J. i- I ROBERT L. WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION - LAW AND NOW, this day of , 1999, upon consideration of Defendants Scott T. Polly and Carla S. Polly's Preliminary Objections raising insufficient specificity of Pleadings of Plaintiffs Complaint it is hereby ORDERED that: Plaintiff, Robert L. Witmer, file a more specific Complaint in particular paragraphs 7, 9, 15 and 16 thereof within twenty (20) days after notice of this Order. BY THE COURT: J. ROBERT L. WITMER : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-3292 Civil Term SCOTT T. POLLY and CIVIL ACTION -LAW CARLA S. POLLY, Defendants RULE TO SHOW CAUSE AND NOW, this day of 1999, upon consideration of Defendants' Preliminary Objection to Plaintiff Complaint by way of demurrer Plaintiff shall have days to respond hereto and show cause why such Preliminary Objection should not be granted. This rule is returnable on the day of 1999, Courtroom # Cumberland County at a.m./p.m. BY THE COURT: J. ROBERT L, WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION - LAW DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendants Scott T. Polly and Carla S. Polly, by and through their attorneys, Kollas and Kennedy, preliminarily object to Plaintiff's Complaint as follows: PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a)(3) RAISING INSUFFICIENT SPECIFICITY OF PLAINTIFF'S COMPLAINT 1, Paragraph 7 of Plaintiffs complaint alleges that "as of this date Defendants have failed and refused to continue with monthly payments." 2. Pa. R.C.P. 1019(f) requires that "averments of time, place and items of special damage shall be specifically stated." 3. The aforementioned paragraph 7 fails to state with any specificity the time within which Defendants have allegedly failed and refused to continue with monthly payments. 4. Paragraph 9 of Plaintiffs complaint alleges "damage to the demised premises." 5. Pa. R.C.P. 1019(a) requires that material facts on which a cause of action is based should be stated in a concise and summary form. 6. The aforementioned paragraph 9 of Plaintiff s complaint fails to set forth with any specificity any action by the Defendants causing the damage delineated in paragraph 9. 7. Plaintiff's paragraph 15 avers "as a result of Defendants breach of the agreement Plaintiff was denied the opportunity to rent said premises to another renter." 8. The aforementioned paragraph 15 fails to state with any specificity the time within which Plaintiff was denied the opportunity to rent said premises. 9. The aforementioned paragraph 15 of Plaintiff's complaint fails to state what breach by Defendants has caused the denial of opportunity of Plaintiff in paragraph 15. 10. Plaintiff's paragraph 16 avers "[a]s a direct and proximate result, Defendants failure to vacate the premises, Plaintiff was denied rent for the period which Defendants were in possession of the property." 11. Plaintiff's paragraph 16 is inconsistent with Pa. R.C.P. 10190 in that it contains sentence fragments making the substance of the averment unclear. Further, Plaintiffs Exhibit "A" indicated that Plaintiff received rent from Defendants. 12. Plaintiffs complaint lacks sufficient specificity to apprise Defendants of the issues to be litigated, to allow them to adequately prepare and assert defenses to Plaintiff's allegations, and to identify and join any potentially responsible parties as additional defendants. WHEREFORE, Defendants Scott 7'. Polly and Carla S. Polly, respectfully request that this Court order Plaintiff to more specifically plead the averments of paragraphs 7, 9, 15 and 16 of his complaint. 2 DEFENDANTS' PRELIMINARY OBJECTIONS PURSUANT TO Pa. R.C.P. 1028(a) IN THE NATURE OF A DEMURRER TO PLAINTIFF'S COMPLAINT 13. Defendants' paragraphs 1 through 12 are incorporated herein by reference as though set forth in full below. 14. Plaintiff commenced this action by filing a complaint on June 1, 1999. A copy of the complaint is attached hereto as Exhibit "A." 15. In the complaint, Plaintiff alleges damages to property demised to Defendants by Plaintiff. See paragraph 9 of Plaintiffs complaint. 16. Plaintiff has failed to aver anywhere in the complaint that Defendants have caused the damages of which the Plaintiff complains. 17. Defendants object to paragraphs 9 and 10 of Plaintiffs complaint on the ground that those averments fail to state a cause of action for which relief can be granted. WHEREFORE, Defendants respectfully request that this Honorable Court grant its preliminary objection by way of a demurrer and dismiss paragraphs 9 and 10 of Plaintiffs complaint. DEFENDANTS' PRELIMINARY OBJECTION PURSUANT TO Pa. R.C.P. 1028(a)(6) TO PLAINTIFF'S COMPLAINT DUE TO AN AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION 18. Defendants' paragraphs 1-17 are incorporated herein by reference as though set forth in full below. 19. Plaintiff's action is based on an agreement between the parties entered into on the 16th of August 1996, and marked as Exhibit "A" to Plaintiffs complaint. 20, At paragraph 22 of this agreement the language states: "REAL ESTATE DISPUTE RESOLUTION SYSTEM: Any dispute or claim arising out of or relating to this Agreement, the breach of this Agreement or the service provided in relation to this Agreement shall be submitted to mediation in accordance with the Rules and Procedures of the Real Estate Dispute Resolution System." 21. Plaintiff has breached the arbitration provision of the parties' contract by commencing this action instead of submitting the dispute which is the subject of this action to arbitration. 22. This Court has authority to compel arbitration and stay judicial proceedings pursuant to 42 Pa. Cons. Stat. § 7304(a) and (d). WHEREFORE, Defendants Scott T. Polly and Carla S. Polly request that this Court enter an order pursuant to Pa. R.C.P. 1028(a)(6) compelling Plaintiff to submit the dispute which is the subject of this action to arbitration in accordance with the arbitration provision of the parties' contract and staying all proceedings in this action pending arbitration. Rule 206-6 Notification to: Mary A. Etter Dissinger, Esquire DISSINGER & DISSINGER 28 N. Thirty-Second Street Camp Hill, PA 17011 Attorney for Plaintiff RESPECTFULLY SUBMITTED, lamtyKollas nedy, Esquire KOLLAS AND KENNEDY I.D. No. 69246 1104 Fernwood Avenue, Suite 104 Camp Hill, Pennsylvania 17011 Telephone: (717) 731-1600 ATTORNEY FOR DEFENDANTS DATE: 4M2 A ROBERT L. WITMER IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-3292 Civil Term SCOTT T. POLLY and CIVIL ACTION - LAW CARLA S. POLLY, Defendants VERIFICATION I, SCOTT T. POLLY, verify that the statements made in the foregoing DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 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 unswom falsification to authorities. By: DATE: 07-411 ROBERT L. WITMER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-3292 Civil Term SCOTT T. POLLY and CARLA S. POLLY ;CIVIL ACTION -LAW , Defendants VERIFICATION I, CARLA S. POLLY, verify that the statements made in the foregoing DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 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: bLtXQ 'a q t CARLA S. POLLY DATE: & 122)11 r, (1 ROBERT L. WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION . LAW CERTIFICATE OF SERVICE 1, Carole A. Rose, of the Law Offices of Kollas and Kennedy, hereby certify that I have this 22nd day of June, 1999, served a true and correct copy of DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT by depositing same in the United States mail, first class, postage prepaid, addressed to the following: Mary A. Etter Dissinger, Esquire DISSINGER & DISSINGER 28 N. Thirty-Second Street Camp Mll, PA 17011 Attorney for Plaintiff LAW OFFICE OF KOLLAS AND KENNEDY BY: &" 1, 6- - t 0 Carole A. Rose ROBERT L. WITMER, Plaintiff VS. SCOTT T. POLLY and CARLA S. POLLY, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA : CIVIL ACTION - LAW NO. N O T I C E T O D E F E N D You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court House Court Administrator 1 Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 Mary F. Etter Dissinger quire Attorney for Plaintiff TRUE COPY FROM RECORD in Testimony whereat, I here unto set my hand and the seal of said Coyrt at COW, Pe. _ ROBERT L WITMER, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY : PENNSYLVANIA VS. SCOTT T. POLLY and : CIVIL ACTION - LAW NO CARLA S. POLLY, NO. Defendants COMPLAINT 1. Plaintiff is Robert L. Witmer, a citizen of Pennsylvania, residing at 4 Carleton Court, Camp Hill, Cumberland County, Pennsylvania. 2. Defendants are Scott T. Polly, a citizen of Pennsylvania, residing at 5316 Oxford circle #14, Mechanicsburg, Cumberland County, Pennsylvania and Carla S. Polly, a citizen of Pennsylvania, residing at 8 South 15th Street, Camp Hill, Cumberland County, Pennsylvania. 3. On or about August 16, 1996, the parties hereto entered into a contract for a sale of real estate (Hereinafter referred to as "agreement"), the terms of which are set forth in the Exhibit "A" attached hereto, which is incorporated herein by reference thereto as if set forth at length. . 4. According to this agreement, Defendants agreed to pay installments of one thousand dollars ($1,000.00) per month. 5. On or about December 1998, Defendants stopped paying this monthly amount. 6. Defendant, Carla S. Polly, notified Plaintiff, via a letter dated November 14, 1998, that she intended to vacate the demised premises and that she did not intend to continue with payments. 7. As of this date Defendants have failed and refused to continue with monthly payments. COUNT Y BREACH OF CONTRACT a. Paragraphs number 1 through 7 are incorporated herein by reference thereto as if set forth at length. 9. After Plaintiff took repossession of the demised premises, he became aware of damage to the demised premises, which include but is not limited to the following: a. Stains and mildew buildup on the interior of all windows and walls; b. Failure to properly repair garage roof; C. Water damage to interior breezeway ceiling because of improperly repaired garage roof; d. Removal of privacy fence and gate; e. Damage and/or removal of the carpeting in the first floor living room, hallway, two upstairs bedrooms, and basement carpet; f. Removal of doors from the basement den closet; g. Removal of duct vent cover in the basement bar room; h. Removal of a dehumidifier in basement washroom; i. Removal of shelf in the basement; j. Removal of closet in upstairs bedroom; k. Removal of wallpaper leaving rough unpainted walls; 1. Poor painting of walls; M. Removal of an outdoor brick barbecue area; n. Rear lawn severely damaged. 10. As a direct and proximate cause of the damage set forth above, Plaintiff was forced to sell the real estate at a reduced price, suffering great financial loss. 11. According to presettlement possession addendum to agreement of sale, Paragraph 3, Defendants were to pay all utility bills, including, but not limited to, electricity, garbage collection, cable TV, water, sewer, gas, telephone, contents and liability insurance, etc. 12. Defendants failed to pay the sewage for the last three years in breach of the agreement. 13. The Defendants have failed to fulfill their obligations under the terms of the contract and have moved out of the premises on or about December 15, 1998 without fulfilling the terms of the contract. WHEREFORE, Plaintiff Robert L. Witmer, demands judgment against Defendants, Scott T. Polly and Carla S. Polly, in an amount under $25,000.00, an amount not in excess of jurisdictional requirements requiring compulsory arbitration. COUNT II LOSS OF RENT 14. Paragraphs number 1 through 17 are incorporated herein by reference thereto as if set forth at length. + 15. As a result of Defendants' breach of the agreement Plaintiff was denied the opportunity to rent said premises to another renter. 16. As a direct and proximate result, Defendants failure to vacate the premises, Plaintiff was denied rent for the period which Defendants were in possession of the property. WHEREFORE, Plaintiff, Robert L. Witmer, prays this Honorable Court to award him reasonable rental for the period of time which Defendants held the property. Respectfully submitted, DISSINGER & DISSINGER Mary . Etter Dissinge, Esre Attorney for Plaintiff Supreme Court ID f 27736 28 North 32nd Street Camp Hill, PA 17011 717-975-2840 VERIFICATION I; Robert L. Witmer, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 1S Pa. C.S. 54904 relating to unsworn falsification. Ro ert L. Witmer, Pi nt ff A%jKLe ZJVli'1N 1 A, VA Inn. OnLG Lf1Ygl rVA%%,nt%0r 'veer I%LnL AL,0 A&LA L' This m recommended' and approved for, but not It 'led to, use by m..atbers of the Greater Harrisburg Association of R.:AI.TORSO AGENT FOR'SELLER SUB AGENT FOR SELLER AGENT FOR BUYER Rel/w Re4trY Assoc. PA. LICENSED BROKER PA. LICENSED BROKER PA. LICENSED BROKER This Agreement made this 14 day of L _:? 19_x, 1. PRINCIPALS Between, +--e?t' (residing at -BOA-- 172 ) hereinafter called Seller, and (residing at _ 6fL7.r 7k t. Lw? "Q h hA /7cy-Y' ) hereinafter called Buyer. d 2. PROPERTY: Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase: ALL T AT ERTAIN Lot or piece of g ound with buildin s and improvements thereon erected, it any, known as: _2y9 710, / 7. 3. ZONING:. Zoning Classification -tom Failure or this Agreement to contain the zoning classification except in cases where the properly (or each parcel thereof, if subdividable) is zoned solely or primarily to permit single-family dwellings shall render this Agreement voidable at the option of the Buyer and if voided deposits (gndered by the Buyer shall be returned to the Buyer without a requirement of court action. 4. TERMS::(a) Purchase Price d C,r ?f/. rs-GQo a. to h (b) (c) (d) (e) (0 (W 5. PRO. .on or before 6. FINANCING WNTINGENCY: This agreement is subject to the financing as follows: - (a) PRINCIPAL AMOUNTS- 101115'00 TYPE Cox.r/"• MINIMUM TERM - 304j.- MAXIMUM INITIAL i . ' INTEREST RATE 1'2 ' ,r Vs MAXIMUM TOTAL' POINTS; INCLUDING LOAN ORIGINATION FEE, TO Bt PAID BY THE'BU.YER: TERMINAL DATE for Obtaining Financing Commitment o'e' t'? l61 'a 00/ Broker may advise Buyer of possible sources of mortgage funds, but cannot assume responsibility for obtaining Buyer's mortgage. If said loan cannot be obtained as herein Drovided, lh(s Agreement shall be NULL AND VOID and all deposit monies shall be returned to the Buyer on or before date of settlement a provided herein, subjea however to the Drovidons In Puatns 6(b) and 6(). c (b) Buyu shill make a wmplded aDPliutlon to a rupomible lending institution for the Bald loan within _? calendar days from the Seller's approval hereof. Should the Buyer fail to make tuck comVleted aplication within the spcified tame, it shall be at the optiooof the Shceq within five (S) calendar days thereafter lo: (q Deciue this Ayeement NULL AN D VOID, at which time, all monies paid on account wail be forte led to Seller u liquidued damages, subject to the Rules and myivania Rqulallons of the Pen Red Estate Commission, or is ph (il) In absence of written notice to the Buyer by the Seller ded-nmis this Agreement NULL AND VOID, the condillon and contingency provided for In lhisPuagraph, together with any other Muu:ingconlingeneica that may bt herein or endorsed hereto, shill no Iongu prevail, and thh Atrument shall remain effective according to lit tomes in l e tame mm nu u if the condillon and contingency for were not a Wn hereof. (c) Seller or Agent muss reeeivea wdtlen:commitmentvdid until the do x 0r, emen t, the said loan, on or before the lrrminil dale as specified. If the said commitment is not fur shed with the lams u tpeeified herein, or on other terms accepted in writing by the Buyu, on or before the speeified date. Seller shall have the option, at the data. or my oNer t(me thrreafta, dur(ng the term of This Agreemcn6 until, but not beyond IM1c doe of reuiDl of the commitment by the Seiler, or Agent, to deelarc this AgreemenINULL AND VOID, by written notice to the Buyyu of Nx/h'deetstonmuncQ, atwNch timeail deposit monies paid on account shall be returned to the Bur sub led to the WYment required, if an Y. Drevided for in Pas h il(b): (i), (ii), and (gill: ittrop (d) Sell' hereby agrees to mu inspediom by authorized spin M. reputable certifiers and/or Buyu u may be t quired by the lending Institution or Insuring agenda. W Sell' hereby agree to pay additional monpge i ixemot palms and/or loan origin ni?n ice In case of a buyer obtaining financing from a lending institution requiring, any one or all of err" it test, providing the lotd of said feu not not exceed _R of the amount of the montage. 7. STATUS OF WATER AND SEWER: sir wuranu that This Property I. se rviced by = a•?-l^'G-? water and sew'. Funhm Seller wuren4 that thew systems uc fully pdd for and. as of the dale of IN grtemcnt sac in wtishdory oprruing condino aforesaid system is private, Sdiu wauants that he/she her no nontt from the municipality or from municipal authorities that public water and/or sewer will be austsed or installed. S. MUNICIPAL IMPROVEMENTS: Seller her no notius of municipal Improvements (such a sidewalks, curbs, etc.) except ??•'cy Access to a public road may require issuance, or a Highway occupancy permit from the Department of Transportation. 9. SPECIAL CLAUSES: e 30. ATTACHED ADDENDA are made a part of this Agreement: PlWood fnfestalton (lKadon Disclosure ? Private Water/On-Stle Sewage ?FHA/VA Cl Dual Agency Content O Home inspection 0 Othu(s): It. PERSONALTY: All existing plumbing, haling, a rconditioning and fighting fixtures (including chandeliers and ailing fans) a pan therrot. and other permanent fixtures. as well as all ranges, laundry tubs, T.V. anitpna, mails and rotor systems, logo sash and/or dears, abodes. awalnp, venetian blinds, couplings for automatic washers and dryers, etc. radiator covert, corm rods, draptty rod hardware, curio rands, curtain rod hardware, all treat shubbery, plantings now In or on property, gage aapied ip thia Agreement, arc Included in the We and purchase prim. None or the above mentioned items shell be removed t date of this A4reement. Any remaining heating and/or seeking rods stored on the premises at time of Kitimat at also Include that he/she well ddiv' good title to all of the articles described in this paragraph, and any other fixlurrs or Items or persona sale. Seiler wunnts di plumbens, heating, ai, cgqnd;tionina, mechanical and gectncal systems and cquipmenland applianceslot This warranty does not survive etosin4 dn.?aa.n- n? .(.+.( 9 O. __Y..C l../. Not Write in This systems appurtenant thereto and lorming with wall to will cupcling, Want, storm water softeners, kitchen cabinets, drapery r.openers, sheds; if any, unless specifically tbstinned by the Sella from premises after sder this Agreement. Seller busby warrants ?t?eL Jl aylc, mLcy? ,q1• •.? ayt rx'? . (a) The premise anew beeonveycd in fee limp' especial warranty dad,-free and clear or all hens. encumbranci casements, EXCEPTING HOW EVER, the following: ExOnlns building restrictions, ordinances, t nits of wads, privileges or rights of public service companies, y; or easements or restrictions visible upon the ground, othterwises the till; to the above described rw elate shall be good mid marketable or such as will be insured by a reputable title insurer" company at the regular rates. (b) The Buyyer will pay for Ihe•following. (I) Tde premium for title [margin=. mechanics Ilen insurance and/or title search, or fm for cancellation of saner, if any. (it) The premium for flood insurance and/or fire insurance with extended coverage, insurance binder charges or cancellation rce, it any. (lip Appraisal fea and charge paid in advise" to mostgagm, if any. (iv) Buyer's normal settlancnt costs and Annual; unless otherwise stated heroin. (e) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney for the preparation of an adequate legal description of the premlves (or the correction thereof), shall be secured and paid for by the Seller. However, any survey or surveys desired by the Buyer or required by his mortgages: shall be secured and paid for by the Buyer. ' (d) In the event the Seller is unable to give a good and marketable title or such As will be Insured by a reputable title company, subject At aforcuid, Buyer shall have the option of taking such title u the Seller can give without abasement of prim or of being repaid all mania paid by the Buyer to the Seller on account of the purchase price and the Seller will reimburse the Buyer for any crisis incurred by the Buyer for those items specified in Paragraph 12(b) items (p, hh. (it) and in Paragraph 12(c); and In the (aster event there shall be no further liability or abjection on either of the Weis hereto and this Agreement shall become NULL AND VOID. 17. PAYMENT OF DEPOSIT& Deposits, regardless of the form of payment and the pawn dalgamed u pay". shall be paid to Agent for the Sella, who shall stain them In an escrow amount until consummation or termination or this Agreement in conformity with all applicable laws and regulations. Agent for the Seller may, at his or her sole option, hold any uecashed check tendered as deposit, pending the acceptance of this offer. If there Is a dispute between the Buyer and the Seller over who is entitled to the deposit, Agent will not be responsible to rcwlve that dispute and will not be liable to either Buyer or the ScIla for refusing to release the deposit without an adequate written ¦gramenl between Buyer and Seger or a valid court order. Buyer and Seller agree that. In the event the Agent and/or Subagent are/it joined In litigation for the return of deposit monies, the Agent's and/or Subagent's rawnsble attorney's fee and wits will be paid by the party joining the Agent or Subagent. 11. POSSESSION AND TENDER: (a) Pagination Is to be delivered by deed, keys and physical possession to a vaunt building (if any) as day And time of settlement, or by deed and assignment of existing lc s)at the timeof settlement if premises Itrmant occupled at the signing oftlds Agreement, tritest otherwise specified herein. Buyer will acknowledge existing leaac(s) by Initialing aid lcase(s) at time of signing or this Agreement of Sale H lenanl occupied, (b) Seller will not enter Into any new iasets), written natation of existing lease(s), If Any, or additional lease(s) for the premises without express wriltericonseni of the Buyer. (c) Formal tender of an executed deed and purchase money is hereby waived. (d) Buyer reserves the right to make a preutilemenl inspection of the subject premiscs, and will execute appropriate documenation of such inspection. IS. RISK OF LOSSt i. (a) -Seller shall maintain the property (including all hens mentioned in pusgraph 011 hercin) and my personal properly specifically scheduled herein In its present condition, normal war and ter excepted.. (b) Seller shall bear risk of loss from fire or other casualty until time of snllcmcni. In the event of damage to the property by fire or other casualty. Buyer shall have the option of rescinding this agrecmens and receiving hand money paid an account or of accepting the properly in its then condition with the proceeds of any Insurance recoveryr obtainable by Seller. Buyer is hereby notified that he may Insure his equitable interest in this property As or the time of the acceptance of this agreement. 16. REPRFSENYATIONS: It is understood that Buyer has inspected the property, or hereby waives the right to do to and he/she has agreed to purchase it u a result of such IatpeeIion aqd not use of or in relimice, upon any representation made by the Shccr or any other of seer, partner or employ" of Sella, or by the agent or she Selicr or y of lbe tatter's Wesperwnt and employees, or by a cooperating Broker, if any, or any of his/her ulespersons and employees and shot he/she has "grad to purchase it an In ha present condition unless otherwise specified herein and further acknowledges that the aforementiond patties are not qualifd to render on opinion on construction, cnginxring, or environmental matters and that the buyer has bttn advised that he/she may require or wish to It the assistance of opera in show folds. It is further understood that this Astronaut contains the whole agreement between the Scher and Buyer and there are no other terns, obligations, covenants, reg risen W low, statements or conditions. oral or otherwise of any kind whatsoever concerning this ate. Furthermore, this Agreement shall not be altered, amended, changed or mWified eseept in writing "muted by the parties hereto. I 17. RECORDING: This ¦greemenl shall not be recorded in The Office for the Recording or Dads or in any other office or place of public record, and if Buyer shall record this agreement or cause or permit the cone to be recorded, Seller may, at his/her option, elect to treat such act ar a breach of this agreement I 18. ASSIGNMENT: This Agreement "hall be binding upon the respective heirs, executors, administrators, successors and, to the extent assignable, on the assigns of the parties . hereto, It being apressiy understood, however, that the Buyer shall not transfer or "elan this Agreement without the written consent of the Seller being first obtained. 19. NON-LIABILITY OF AGENT: Except At maybe provided by a separate agreement or addendum to this Agreement. Agent(s) or Sub•Agcn1(s), if any, arc representing Seller, not the Buyer. It Is esprady understood and agreed between the parties hereto that the herein named agent, his/her salespersons and employees or any officer or partner or agent and Any cooperating broker and his/her salespersons and employees And any officer or partner of the cooperating broker are acting as agent only, ip bringing the Buyer and Seller together, and will in no cue whatsoever be held liable jointly or severally to either party for the performance of any item or covenant or this Agreement or for damages for the nonpaformanct therenf. ' I 20. DEFAULT - TIME IS OF THE E,GSENC& The aid time for settlement and all other items referred to for the performance of any of the obligations of this Agreement are hereby agreed to be of the amence of this Agreement. Should the Buyer: (a) Fall to make any additional payments u specified in Paragraph 1, (b) Furnish false or Incomplete Information to the Seller, the Seller's agent, or the mortgage lender, concerning the Buyer's legal or financial status, or fall to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment, or (c) Violate or fail to fulfill and perform my of the lams or conditions or this Agreement. then in such ease, sill deposit monies and other turns paid by the Buyer on account of the purchase prim, whether required by this Agreement or not, may be retained: t (ij by the Seller on account of the purchase prim, should the seller demand the full purchase price, or (is) u monies to be applied to the Sella'" damages, or - (fit) u liquidated damage for such breach, as the Scher may elect, and in the event that the Sean claps to retain the mores as liquidated damages in arwrdmce with Paragraph 20(eXiii). the Scher shall be released from all liability or obligation u this Agreement shall be NULL AND VOID. 21. RECOVERY FUND: A real estate recovery fund exists to reimburse any persons who has obtained a find civil judgment against a Pennsylvania rat estate limns" awing to fraud, misrepresentation, or dwelt in a rat estate transaction and who has been unable to What the judgement after exhausting all legal and equitable remedies. For corn. plat details about the fund, call (717) 787.1651. IL REAL ESTATE DISPUTE RESOLUTION SYSTEM: Any dispute or claim arising out of or relating to this Agrerment, the breach of this Agreement or the service provided In relation to this Agreement shall be submitted to mediation in accordanm with the Rules mid Procedures of the. Real Estate Dispute Resolution System. Dispute shall include teprucatatdons made by the buyer, miles. or any broker, agent, eubagmt, or other pawn or entity in connection with the axle, purchase, financing, conditions, or other sepal of the property to which this Agreement patens including, without limitation, allegations or concealment misrepresentation, negligence And/or fraud. The provisions or this paragraph relating to mediation shall sur,ivc settlement an the subject property or earlier termination or this Agreement. Buyer and setter Acknowledge that they have romived, read, and understand the:Amdwd Announcement brochure and ruin and procedures for the Rat Estate Dispute Retain. Lion System, 21. DESCRIPTIVE HEADING: The descriptive hadings used herein are for convenience only and they are not intended to indicate all or the matter In the sections which follow them. AccordirWy, they shall have no effect whatsoever in determining the rights or obligations of the parties. H. AGREEMENT. THIS AGREEMENT CONTAINS THE WHOLE AGREEMENT BETWEEN THE SELLER AND BUYER. THERE ARE NO OTHER TERMS. OBLIGA• TIONS, COVENANTS, REPRESENTATIONS, STATEMENTS OR CONDITIONS, ORAL OR OTHERWISE, OF ANY KIND WHATSOEVER CONCERNING THIS SALE, EXCEPT AS ATTACHED TO THIS CONTRACT. ' i [Do Not.Write in This Space] This is a legally binding contract; If not understood, consult your attorney. FALL sit 1: This Documents may be snouted by the Buyer Of Sefkr And transmitted to the other for execution by telefax. When accused and delivered in sw.h manaer, this Document will be binding Y though ca¢vsed by the parties on she original dugvmal. APPR VAL BY BUYER., In witness whsrmf, the parties haao, lnlmdingto be le-Sally bound hereby, have ha der as th, and d s the day And year first above Wilson. radaLveH,g.+. BUYER (SEAL) witS As TO VUYu BUYE0. (SEAL) w 13 AS TT)WTkt A"ROVAL a?YySELLOU Seisms) hacby npprova c w this day of AL aUGau.vag.? SELLER (SEAL w NTO gtiglt ? ' AOrNTaY: / AL14Y (sua4A' l±r E sEU.Lg „f• (SFAt4 PRI's-SETTLEME... POSSESSION ADDENDUM TO .GIZEEMENT OF $ALE This form recommended and approved for, but not restricted to, use by members of the Greater Harrisburg Association of RL'ALTOttsw. DATE OP SALCS AGREEMENT: _tL RE: PROPERTY: 3V9 7z, - lL SELLER: .t _ ,, _y ( EUXCR: e?Zf ...? 1 In consideration of Purchase Price and the mututal promises contained in this Addendum, the Seller and Buyer agree that Buyer may take possession of the Property prior to the date of Settlement, with occupancy beginning. 7 n, f 1991_, hereinafter Occupancy Date, under the following terms and conditions: 1. Deposit. Prior to the Occupanc Date, the Buyer shall deposit the additional sum of s Dooo . to be held in the escrow account of ?(/nK a- 4 i as an additional sales deposit under the terms of the Agree- ment for the Sale and Purchase of R& Estate. This Additional Sales Deposit shall be credited to the Buyer at the time of Agreement. Buyer shall also pay, prior to the Occupancy Date, a security/damage deposit of s to be held by Seller. This security/damage deposit will be returned to Buyer at Settlement. if Settlement does not take place, the unused por- tion of the security/damagc deposit will be returned to Buyer within 30 days from a) the date Buyer vacates the Property, or b) the last date agreed to for Settlement, whichever is later. This sccurity/damagc deposit may be used to pay any pas?y? due rent, damages not repaired by Buyer, or to pay other money damages owed by Buyer to Seller, f•L 2. Fee. Toe Buyer agrees to pay to the Seller the sum of s Unu 4 pctayfrom Occupancy Date until Settlement. ' Buyer agrees to pay the fee in monthly installments with ?lte first month's fee payable on or before the Occupancy Date Thereafter, the fee will be paid in advance, on the I° day of each month. The fee shall be paid directlW1 Seller by mail. A$ S-0 late fee will be charged if received by the Seller with a postmark dated after the A5 day of each month. At Settlement, Seller will return any rent collected for days falling after Settlement. If Settlement does not take place, Buyer will continue to pay the fee as aforesaid until Buyer fully vacates the premises and restores posses- sion to Seller in the same condition as existed on the Occupancy Date. 3. Utilities, a. Utility Charges. Buyer shall pay from and after the Occupancy Date all operating and utility charges connected with the use of the Property, including but not limited to electricity, garbage collection, cable TV, water, sewage, gas, telephone contents and liability insurance, association/conliominium•fees, etc. Seller will only pay the existing trtortgagc(s), taxPat and Seller's insurance (Paragraph 10, below), until settlement. b. Transfer of Accounts. Buyer agrees to place the utility accounts and other services in Buyer's name as or the OccupanDate. If-atywtility-or-sewicc-proyider-will-not-open-an-accountwitlrBnycr, the-related charges will-be pro-rated settlcmunrbased-on-t he-Occu pancy-Date. 4. Property Inspection. Buyer acknowledges that Buyer: a. has made a complete inspection of the Property; or b. will make a complete inspection of the Property on or before the Occupancy Date. This inspection is the pre-scttlcment inspection granted to Buyer in the Agreement for the Sale and Purchase of Real Estatparagraph 14. A+4be-timcmHhis-Property-Inspection,-Buyer-will-complete-and-sign•a-Pre-Scttlement Wa-Inspection-Form. 5.Buyer's Default. The time for the performance of any of the obligations of this Addendum are hereby agreed to be of the essence. Should Buyer fail or refuse to perform under the terms of this Addendum or or the Agreement for the Sale and Purchase of Real Estate of which it is a part: a. Buyer will immediately vacate the Property and Seller shall be entitled to immediate possession. Buyer agrees that Seller may inslilute proceedings to recover possession without providing prior notice. b. Seller may retain the security/damage deposit and apply it to unpaid fees, damages, or other sums owed by Buyer to Seller on account of this Addendum or the Agreement of which it is a part. Seller may also retain the purchase Deposit and the Additional Sales Deposit pursuant to the provisions of Paragraph 20 of the Agreement for the Sale and Pur- chase of Real Estate of which this is a part. c. Buyer shall pay to Seller all costs incurred in having Buyer removed from the Properly including court costs and attorney fees. 6. Repairs. if, for any reason, Settlement does not take place, Buyer will repair all damages, completely clean the Property, and return it to Seller in the as good a condition as existed on the Occupancy Date, 7. Maintenance. Buyer agrees to maintain the Property in good condition, free of trash and debris, and to abide by all regula- tions of the Seller relative to the occupancy. 8. Assignment. Buyer may not assign Buyer's rights under this Addendum or lease the Property to any party. 9. Conflict. The provisions or the Agreement for the Sale and Purchase of Real Property shall remain in full force and effect except for those provisions that are amended or superseded by this Addendum. 10. Personal Property/Insurance. Seller is not responsible for Buyer's personal contents or other items placed on the Property. Buyer will obtain insurance coverage for personal property and Buyer's liability. Seller will maintain fire and casualty coverage and coverage for Seller's liability until settlement. 11. Entry, Seller or Seller's agent may enter the Property at any t?rtc in the event of emergency, otherwise on a weekly basis with 24 hours prior notice to Buyer. (cc;k s. pl?(? ) 12, Pets, Pets [w will / [v-jb t be allowcdlbn the Property prior to scttlcment. ? /?_ .? 13. Changes to Property. Buyer will not make any alterations, including painting or other improvements to the Property prior to settlement without the Seller's prior written permission. 14. Indemnification. Buyer will indemnify and hold harmless Seller, [lie Agents and Brokers, from all claims, lawsuits, and actions that arise from, or occur daring Buyer's occupancy or use of the Property. In connection therewith, Buyer will defend Seller from all such suits and claims, and pay Seller's costs, including attorney fees and damages awarded. 15. FAX Agreement. This Addendum may be executed by the Buycr or Seller and transmitted to the other for execution by telefax. When executed and delivered in such manner, this Addendum will be binding as though executed by the parties on the original document. Witness: 4 r ,r Seller: Date: E-br, be. Witness Witness: 4 rdg del t++. Witness: Datc: Date: 2 ') / Datc: .^2fl & Seller: Realty Associates, Inc. ADDENDUM TO SALES AGREEMENT In reference to Agreement of Sale between , the Purchaser, and The Seller, Dated, /? 9L covering the real property commonly known as 2579 72. l1., C??y .(? Ll r r?A /7077 the undersigned Purchaser and Seller hereby agree to the following: The herein agreement, upon its execution by both parties, is herewith made an Integral part of the alorementioned Agreement of Sale. Dated: Purchaser Purchaser Witness _tti - f! Agent Dated: w ?G q9L _ ,?? 'Seller. Seller Witness 044 Agent r ..W /t1? L.. ,L kE/mau Ak . Z--t L..(L Jed , ..? I.Je tin.." -r r t -.? AwTA" ?cn.t zt i,iw r,• "7 t?1fL F- 'r7 o m U w w l7 Q ? 3 N Z v n3Z?r a O Y P W N Z `o w ?a r o ??a Z < ? z= _ O m° N 2 i ROBERT L. WITMER, Plaintiff VS. SCOTT T. POLLY and CARLA S. POLLY, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA N0. 99-3292 Civil Term CIVIL ACTION - LAW N 0 T I C E T O D E F E N D You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court House Court Administrator 1 Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 Ator n GHe d, Esquire ey for Plaintiff ROBERT L. WITMER, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY : PENNSYLVANIA VS. NO. 99-3292 Civil Term SCOTT T. POLLY and CARLA S. POLLY, CIVIL ACTION - LAW Defendants AMENDED COMPLAINT 1. Plaintiff residing at 4 Pennsylvania. is Robert L. Witmer, a citizen of Pennsylvania, Carleton Court, Camp Hill, Cumberland County, 2. Defendants are Scott T. Polly, a citizen of Pennsylvania, residing at 5316 Oxford Circle #14, Mechanicsburg, Cumberland County, Pennsylvania and Carla S. Polly, a citizen of Pennsylvania, residing at 8 South 15th Street, Camp Hill, Cumberland County, Pennsylvania. 3. on or about August 16, 1996, the parties hereto entered into a contract for a sale of real estate (Hereinafter referred to as "agreement"), the terms of which are set forth in the Exhibit "A" attached hereto, which is incorporated herein by reference thereto as if set forth at length. 4. Defendants were in possession of the premises from August 1996 through mid-December 1998. 5. While in their possession, Defendants allowed the property to become damaged as set forth in Paragraph 13 below. 6. According to this agreement, Defendants agreed to pay installments of one thousand dollars ($1,000.00) per month. 7. on or about December 1998, Defendants stopped paying this monthly amount. 8. Defendant, Carla S. Polly, notified Plaintiff, via a letter dated November 14, 1998, that she intended to vacate the demised premises and that she did not intend to continue with payments. 9. Since December 1998, Defendants have failed and refused to continue with regular monthly payments required by the contract (See Exhibit "A"). 10. The Defendants vacated the premises in mid December 1998. COUNT I BREACH OF CONTRACT 11. Paragraphs number 1 through 10 are incorporated herein by reference thereto as if set forth at length. 12. According to pre-settlement possession addendum to agreement of sale, Paragraph 6, Defendants were required to repair all damage to the property, completely clean the property, and return it to Plaintiff in as good a condition as when the Defendants occupied the property. 13. After Plaintiff took repossession of the demised premises on or about December 1998, he became aware of damage to the demised premises, which include but is not limited to the following: a. Stains and mildew buildup on the interior of all windows and walls; b. Failure to properly repair garage roof; C. Water damage to interior breezeway ceiling because of improperly repaired garage roof; d. Removal of privacy fence and gate; e. Damage and/or removal of the carpeting in the first floor living room, hallway, two upstairs bedrooms, and basement carpet; f. Removal of doors from the basement den closet; g. Removal of duct vent cover in the basement bar room; h. Removal of a dehumidifier in basement washroom; 11 i. Removal of shelf in the basement; H 7. Removal of closet in upstairs bedroom; k. Removal of wallpaper leaving rough unpainted walls; 1. Poor painting of walls; M. Removal of an outdoor brick barbecue area; n. Rear lawn severely damaged. 14. The aforementioned damage occurred after Defendants took possession of the Property and before Plaintiff re-took possession in mid-December 1998. 15. As a direct and proximate cause of the damage set forth above, Plaintiff was forced to sell the real estate at a reduced price, suffering great financial loss. 16. According to pre-settlement possession addendum to agreement of sale, Paragraph 3, Defendants were to pay all utility bills, including, but not limited to, electricity, garbage collection, cable TV, water, sewer, gas, telephone, contents and liability insurance, etc. (See Exhibit "A"). 17. Defendants failed to pay the sewage for the last three years in breach of the agreement. 18. The Defendants have failed to fulfill their obligations under the terms of the contract and have moved out of the premises on or about December 15, 1998 without fulfilling the terms of the contract. WHEREFORE, Plaintiff Robert L. Witmer, demands judgment against Defendants, Scott T. Polly and Carla S. Polly, in an amount under $25,000.00, an amount not in excess of jurisdictional requirements requiring compulsory arbitration. COUNT II LOSS OF RENT 19. Paragraphs number 1 through 18 are incorporated herein by reference thereto as if set forth at length. 20. As a result of Defendants' breach of the agreement Plaintiff was denied the opportunity to rent said premises to another renter. 21. As a direct and proximate result of Defendants' failure to vacate the premises, Plaintiff was denied rent for the period which Defendants were in possession of the property. WHEREFORE, Plaintiff, Robert L. Witmer, prays this Honorable court to award him reasonable rental for the period of time which Defendants held the property. Respectfully submitted, DISSINGER & DISSINGER Ste en G. Held, Esquire Attorney for Plaintiff supreme court ID # 72663 28 North 32nd Street Camp Hill, PA 17011 717-975-2840 VERIFICATION I, Robert L. Witmer, verify that the statements made in this Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. l+ Robert L. Witmer, Plaintiff a /'1laICL'L'1V1L'1V I P111V 111L' DB.LL' t%11%11 -U 1\l>11t10L' 'A' 1XJ!' 1A? A'OA I1X .? use Thi: in recommended and approved for, but not ri ,led to, AGENT FOR SELLER by in-abcrs of the Greater Harrisburg Association of IWALTORS© EPA. UB AGENT FORSELLER AGENT FOR BUYER REI Pk e44rr 4ssoc, PA. LICENSED BROKER LICENSED BROKER n PA. LICENSED BROKER This Agrccment made this day of r,4 a.,a:f 1. PRINCIPALS Between, '4?c t' , k t9?6 (residing at / /70 Zr hereinafter called Scllcr, and ) (residing at h47S 7h t ,t,/„., per(,-?y /?? p? /7al u hereinafter called Buyer. ) 2. PROPERTY: Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase: ALL TAT BRTAIN Lot or piece of g ound with buildjn¢s and improvements thereon erected, if any, known as: ?y9 220 /7 t _- J. 'LONIN :Zoning Classification !14- , Failure of this Agreement to contain (he zoning classification except in cases where the property (or each parcel thereof, if subdividable) is zoned solely or primarily to permit single-family dwellings shall render (his Agrccmcnl voidable at the option l the Buyer of, if and if voided deposits (gndcrcd by the Buyer shall be returned to the Buyer without a requirement of court action. 4. TERMS::(a) Purchase Price Q-ate it 11--. r 1 C? to be paid by the Buycr as (b) DEPOSIT Chick Id, Cash C If Note, to be redeemed on or t (c) ADDITIONAL DEPOSIT due c day or (d) BALANCB OF PURCHASE 1'I (cash, certified check, and/or in q," (e) Written approval of 8eae? to be oll'or before the day of cd:IX Is, 74, (0 Settlement to be made on at her (g) The following shall be apportion and homeowner association fees i Y. water and/or sewer rents if any. togc(hcr with any our evenly unleu otherwise provided Transfer herein. let licnablc municipal services. All Really PROPERTY SE 7LUIENT CONTINGENCY: This agreement is subject to the settlement of Buyer's properly located at -"IV//4 4. FINANCING CONTINGENCY: before on or This agreement is subject to the financing as follow: (a) PRINCIPAL AMOUNT S l L7 yi SOU TYPL Cope/'- - . ' MAXIMUM INITIAL MINIMUM TLRM .3-_V INTERCST RATG f'? 01. MAXIMUM TOTAL POINTS, 'INCLUDING LOAN ORIGINATION FLE, TO UCi'AID BY THE UUYBH:?_ TERMINAL DATE for Obtaining Financing Commitment _ /? ,?OIJ/ Broker may advise Buyer of possible sources of mortgage funds, but cannot assume responsibility for obtaining Buyer's mortgage. If said loan cannot be obtained as herein Provided, this Agreement shall be NULL AND VOID and all deposit monies shall be returned to the Buyer on or before date of settlement herein. subject however to the provisions in Paragraphs 6(b) and 6(c). as provided (b) Buyer shall make a completed aPPlicalior. to a responsible lending institution for the said loan within Should the Buyer fail to make such completed application within the specified Time, it shall be at the optio-o (Th e gtjj«dar, d five (5) front cl otdar Seller's aye meal hereof. r (i) Declare this Agreement NULL AND VOID, as which lime, all monies paid on account will be fortclud to Seller as liquidated damages, subject to tie Rules and app Regulations of the til Real Estate Comm to: absence n notice to ission, or (ii) In absence of written notice to the Buyer encies the that Scllcr d edaiu9 this Agreement NULL AND VOID, the condition and contingency provided for in this paragraph. together milli any other financing contingencies may be herein or endorsed hereto, shall no Jorge ccording r prevail, and this Agreement shall remain effective a (c) Seiler to or fits ms in the same manner as if the condition and contingency were not a part hereof. Agenntt muss receive a written:commitment valid until the dale orscubmcm. for the said loan, ou or hefinethe mrmiwl date as specified. If the said commitment a1 Isalfdatc5 orauy othcrlGmcstbcrciflcq during the teen olf IlnieAgrcenen4 untih bol not biyo dnihc date off cccinl of cificd mdate. S it the Seller, the option, declare this Agrtement NULL AND VOID, by written notice m th<Buyer ofhis/her decision la cancel, at wlJch lime all Jeposil monies paid on account shall or be returned to the Buycr, subject to the payment required, if any, provided for in Puagraph I2(b): (i), (ii), and (iii). Agent. 1, (d) Scllcr hereby agrees to permit impedions by aulharixcd appraisers, reputable eenifiers and/ar Buycr as may se «quircd by the (c) lending Institution or insuring ageneiu. any o coo call of aforesaiJ fees,l prm'idingg hie total of sold fees ndocs nlotaac canati?n fccen cast of a buyer obtaining (financing from a lending institution requiri TUS /s a(thre amount of the mortgage. 7. STA ng. Of WATER AND SI:WEIt: Scllcr warrants flat this properly is serviced by ss.l ewer. Funhcr, Scllcr warrants That Ihcse syucros arc fully paid for and, as of the date of this eF . mater and is private, Scllcr warrants that he/she has no notice from the municipality ar from municipal aulhoritits shat public water anJ/or timer mitt n. aIf either ssessed or aforesaid system !. MUNICIPAL IM!'I10YEMENTS: Scllcr has no notices of municipal improvements (such as sidewalks, curbs, ele.) except Access to a public road may require issuance of a 111811w3y occupancy Permit from the Department of Transportation. 9. SPECIAL CLAUSES: 10. ATTACHED ADDENDA are (Trade a part of nJs Agmcmcm. WW--d Ifcsliamn B?1Qadon Omlosmc ? Private Water/On-Site Sewage ?FHA/VA O Dud Agency Consent ? liome Inspection L) Othegq: _ 11. PERSONALTY: All cabling plumbing, heating, air-mudincining and lighling fixtures (including chandeliers and ceiling fans) and systems appurtenant thereto and forming a part thereof, and other permanent fixtures, as well as all ranges, laundry tubs, T.V. antennas, masts and rotor systems, together with wall to wall carpeting, screens, slorns user and/or doors, dudes, awnings, venetian blinds, couplings for automatic washers and dryers, c«. radiator coven, cornices, water softeners, kitchen cabinets. Jrapery curtain rods, curtain rod hardware, all trees, shubbery, plantings now in or on Property, tarage door.oPCners, sheds; if any, unless specifically rods, drapery rod hardware, excepted in this Agreement, arc included in the sale and purchase price. None of the above mentioned items shill be removed or substituted by the Scllcr from premises after date of this Agreement. Any remaining healing and/or cooking furls stored on the premises at time of settlement are also included under this Agreement. Seller hercby wurams that le/she will deliver good title to all of the articles described in this paragraph, and any other fixtures or items of personally specifically scheduled to be included in this sale. Seller warrants all plumbing, healing, air a ndtisoning,mechani,alaud ecircal sfstems and equipmentand&PPlimca to be in proper weri.ins order at time of settom,•„r This warranty does not survive closing. y. vlot Write in This ,i` 'A ? ? f4 - »riS4?j .4 r-. i \t (3) -The premises arc to be conveyed in fee sfmp' special warranty dyed, free and clear of all)iens, ebcumbrancy 'cmements.EXCEPTING HOWEVER, the following: j? Existing building rchriclions,ordinances. e mtsofroads, privilegeorrights ofpublic service companies, y; or easements or restrictions visible upon the ground, otherwise the title to the above described Sea, estate shall be good and marketable or such as will be insured by a reputable title insurance company at the regular rates: (b) The Buyer will pay for the following: ' f) The premium for title insurance, mechanics lien insurance and/or title search, or fee for cancellation of same, if any. (ii) The premium for ?o 4 insurance and/or fire insurance with extended coverage, insurance binder charges or cancellation fee. If any, Gii) Appraisal fees and charges pail in advance to mortgagee, if any. (iv) Ouyee" normal settlement costs and 'cruab unless otherwise stated herein. (e) Any survey or surveys which nay be required by the Title insurance Company or the abstracting attorney for the preparation of an adequate legal description of the premises for the correction IherensL211 Le secured and paid for by the Seller, llowcn,. any survey or surveys desired by line Buyer or required by Iris mortgagee shall be sttore and paid for n IS y ILe Buyer. (d) In the event the Seller is unable to give a good and mukemLle title or such u will be insured by a reputable lisle company, subject as aforesaid. Buyer shall have the oPtlmn of raking such lisle as Jas Seller can give without abatement of price or of being repaid all monies paid by the Buyer to the Seller on account of the purchase peter and the Seller will rehnUuno ILe Uuycr for 'any costs Incurred by the Buyer for those items specified in Paragraph 12(b) items (I), (it), (Iii) and in Paragraph 12(c); - In the latter event ILere shall Le no funhe IiaLilily or objMimn on either of the pusses 6erelo and this Agecm<nt shall become NULL AND VOID. 12. PAYMENT OF DEPOSIT: Deposits, an regardless of She form at payment mud the person designated as payee, shall be paid [a Agent for Ilse Seller, who shall retain them in escrow account until eonsummatloit Or terminal In. of This ARrcenenl in conformity with all applicable laws and regulations. Agent for the Seller may, at his of her solo option, hold any uncashnl check tendered AS deposit. Ixndine Ile acceplanee of this offer. If there is a dispute between the Uuycr and the Seiler over who is entitled to tla deposit. Agent will not be responsible to resolve Ilan dispute and will not be liable to either Buyer or tire Seller for refusing to release lira deposit without an adequate written agreement between Buyer and Seller or a valid court order. Buyer and Seller agree that, in the event ]Ile Agent and/or Subagent are/is joined In litigation for lira return of deposit monies, Ilse Agent's mid/or Subagent's reasonable attorney's fees and costs will be paid by the party joining the Agent or Subagent 14. POSSESSION AND TENDER; (a) Possession is to be delivered by decd, keys and physical possession to a vacant building (if any) at day and time of settlement, of by deed and assignment of existing lease(s) at the ILne of sc dement if premise is Icnanl occupied at the signing of this Agreement, unless otherwise specified herein. Buyer will acknowledge existing ]case(s) by inilialing said lease(s) at time of signing of [his Agreement of Sale if Ienaln occupied. (b) Seller will not enter Into any new lease(s), written extension of existing lease(s), if any, or additional lease(s) for the premises without express writtenconsent of tlta Buyer. (c) Formal tender of an ueeued decd and purchase money is hereby waived. (d) Buyer reserves tle right to make a pruclilenett inspection of the subject premises, and will execute appropriate doconenmion of such ingectimn: 15. RISK OF LOSS; (a) Seller shall maintain the properly (including all items mentioned in paragraph #1 1 herein) and any personal properly specifically scheduled herein in its present condition, normal wear and tear uccptcd., (b) Seller shall bear risk or loss riot,, fire or other casually mail time of settlement. In the event or damage to lla properly by fire or other casualty, Buyer shall have the option of rescinding this agreement and receiving hand money paid on account or or accepting the properly in its then condition with the proceeds crony Insurance recoveryy obtainable by Seller. Buyer is hereby notified that he may insure his equitable interest in this properly as of [lie lime of (hc acceptance of this agreement. 18. REPRESENATIONS: It is understood that ]toyer has inspected the property, or hereby waives the right to du see and he/she has agreed to Purchase it as a reudl of such inspection and not because or or fn reliance upon any representation made by the Seller or any other orfrecr, partner or employee of Seller. or by the agent of the Seller or any of the patter's salespersons and employers, or by a coofxraling Ilrokcr. If any, or any of his/her salespersons and employees and that he/she has agreed to purchase it In its present condition unless othenrise specified parch, and further ackunwledges that the aforementioned parties are not qualified to sender an opinion on construction, engineering, or cuvironmculal matters mid that the buyer has been advised that he/she may require or wish to seek the Assistance or experts it, those fields. It is further understood that this Agrccmcnl contains the whole agreement between (he Seiler and Buyer and [here arc no other terms, obligations, covenants, repluentotiom, stalemcna or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement shall not be altered, amended, changed or modified except in writing ueculed by tie parties hereto, 17. RECORDING: This agtecnstni shall flat be recorded fn the Office for the Recording of Deeds or in any other office or place of public record, and it Buyer shall record This agrMITIML or cause or permit the same to be recorded, Seller may, at his/her option, elect to It"[ inch act as a breach of (Ills agreement. 18. ASSIGNMENT: This Agreement shall be binding upon the respective heirs, executors, administrators, successors and, to the extent assignable, on the assigns of the parties . hereto, it being expressly understood, however, 1112( the Buyer shall star transfer or assign [his Agrccmcnl not the Buyer without the written consent of the Seller being first obtained, 19. NON-LIABILITY OF AGENT; Except as essay, be provided by a separate agrecnanl or addendum to Ibis ABrecmenl, Agcu1(s) or Sub•Ageu(L), if any, ate reprcseditng Seiler. . . It is expressly understood and agreed between the parties hereto that the herein named agent; his/her salespersons and employees or any officer or partner or agent and any cooperating broker and his/her salespersons and employees mid any officer or partner of the cooperating broker arc acting AS agent only in bringing tie Buyer and Seller together, and will In no case whatsoever be l1eld liable jointly or severally to either party for Ile performance of any item or covenant of this Agreement or for damages for the nonperformance [hereof. i- 20. DEFAULT - TIME IS OF 711E ESSENCE: The said [line for settlement and all other items referred to for the performance of any of the obligations of this Agreement are hereby agreed to be of the essence of this Agreement. Should the Buyer; (a) Fail to make any additional payments as specified in Paragraph 4, (b) Furnish false or incomplete Information to the Seller. the Seller's agent, or the mortgage lender, concerning the Buyer's legal or financial status, or fail to cooperate in she processing of the mortgage loan application, which acts would result in lla failure to obtain the approval of a mortgage loan commitment. or (c) Violate or fail to fulfill and perform any of the tams or conditions of this Agreement, (hen in such case, all deposit monies ad other suns paid by Lite Buyer on account or the purchase price, whether required ty this Agreemenl or not, may be retained: (i) by the Seller on account of she purchase price, should the seller demand the full purchase price, or (ii) AS monies to be applied to the Seller's damages, or (fit) as liquidated damages for such breach, As lire Seller may elect, and in Fla event that the Seller elects to retain the monies as liquidated damages in accordance with Paragraph 20(c)(iii), lire Seller shall be released from all liability or obligation u this Agreement shall be NULL AND VOID, 21. RECOVERY FUND; A real estate recovery fund exists to reimburse any persons who has obtained a final civil judgment against a Pennsylvania real cslate liccmee owing to fraud, misrepresentation, or deceit in a real estate transaction and who has ban unable to collect the judgement after exhausting all legal and equitable remedies. For com• pleas details about the fund, call (717) 7834854. 22. REAL ESTATE DISPUTE RI•:SOLUTION SYSTEM: Any dispute or claim arising out of or relating to this Agrccmcnl, the breach of this Agrccmcnt or [he service provided in teladon to this Agreement shall be submitted to mediation in accordance with the Rulu and Procedure of the Real Estale Dispute Resolution System. Disputes shall include repreaenta[iont made by the buyer, seller, or any broker, agent, subagent, or other person or ensily in connection with the sale, purchase, financing, conditions, or other aspect of the property to which this Agreement pertains including, without limitation, allegation of concealment, misrepresentation, negligence and/or fraud, The provisions or this paragraph relating to mediation shall survive settlement on the subject properly or earlier termination of this Agreement. Buyer and seller acknowledge that they have received, read, and understand 16e standard announcement brochure and rules and procedures for the Real Estate Dispute Resolu- lion System. 25. DESCRIPTIVE HEADING: Tire descriptive headings used herein are for convenience only and they are not intended to indicate all of lla matter in the sections which follow them. Accordingly, they Shall have no street whatsoever in determining the rights or obligations of the poetics. 24. AGREEMENT-. THIS Arsur"Mrvrlnu -,.,.. ?.,.. TO OR BUYER. THERE ARE NO OTHER TERMS, DULIGA- OF ANY KIND WHATSOEVER CONCERNING THIS [Do Not.Write in This Space] This is a legally binding contract; if not understood, consult your attorney. Fu Statement: This Document may be ueculed by tlsc Buyer or Seller and Itammiucd to the other for execution by leeaL. Wlan executed and delivered in Loch manner, skis Document will be binding a though executed by the parties on the original document APPR VAL BY BUYER: h wireless whereof, the parties hereto, intending to be legally bound hereby, have hherrytnJet set tLr anda d Is the day and year first above written. M,ITJ""m 00 0UII:it BUYER I L/n?z?CG`??/l-t?'?/? (SEAL) %IMLS9 AS 70 But" -- BUYER (SGL) APPR`?rrOO?/VAAL BY SELLER: Sdin (q I¢tcby app....... :nsact (Lis 4i Is AGENT BY: __S ,MAY _ day or _. ??' 17G SELLER 'SLAL) -.-___ ... ... SELLER IISA 110 7/94 A PRE-SETT'LEME, POSSESSION ADDENDUM TO .GIZEEMENT Or SALE This form recommended and approved for, but not restricted to, use by members of the Greater Harrisburg Association of REALTORSt°. DATE OP SALES AGREEMENT: RE: PROPERTY: iy 71.. BUYER: 9CvcC .?I,-.._.... y .t L:..oG...c ©.-Ct'..?. In consideration of Purchase Price and the mututal promises contained in this Addendum, the Seller and Buyer agree that Buyer may take possession of the Properly prior to the date or Settlement, with occupancy beginning 7Gr, U.>? i , 1996 , hereinafter Occupancy Date, under the following terms and conditions: 1. Deposit. Prior to the Occupant Date, Ate Buyer shall deposit the additional sum of $_ ?nOU to be held in the escrow account of F_ n Pr A17 ?. -as an additional sales deposit under (lie terms of the Agree- mcm for the Sale and Purchase of Rein Estate. This Additional Sales Deposit shall be credited to the Buyer at the time of Agreement. Buyer shall also pay, prior to the Occupancy Date, a security/damage deposit of $ •- to be held by Seller. This security/damage deposit will be returned to Buyer at Settlement. If Settlement does not take place, the unused por- tion of the security/damagc deposit will be returned to Buyer within 30 days from a) the date Buyer vacates the Property, or b) the last date agreed to for Settlement, whichever is later. This security/damage deposit may be used to pay any past due rent, damages not repaired by Buyer, or to pay other money damages owed by Buyer to Seller. 7.Lw 2. Gce. T¢tc Buyer agrees to pay to the Seller the sum of $_4 000 pct?day ['rem Occupancy Dale until Settlement. . Buyer agrees to pay the fee in monthly installments with Pic first month's fee payable on or before the Occupancy Date Thereafter, the fec will be paid in advance, on the f ° day of each month, The fee shall be paid directl? Seller by mail. AS :iU late fee will be charged if received by the Seller with a postmark dated after the .5=_ day of each month. At Settlement, Seller will return any rent collected for clays falling after Settlement. If Settlement does not take place, Buyer will continue to pay the fee as aforesaid until Buyer fully vacates the premises and restores posses- sion to Seller in the same condition as existed on the Occupancy Date. 3. Utilities. a. Utility Charges. Buyer shall pay from and after the Occupancy Date all operating and utility charges connected with the use of the Property, including but not limited to electricity, garbage collection, cable TV, water, sewage, gas, telephone contents and liability insurance, association/contlominium•fces, ctc. Seller will only pay the existing mortgage(s), taxes and Seller's insurance (Paragraph 10, below), until settlement. b. Transfer of Accounts. Buyer agrees to place the utility accounts and other services in Buyer's name as of the Occupancy . Date. If-any-ttNlity-or-sarvico-provider-will-not-open-an-account?vitlrBuyer, the related charges will be pro-rated at settlement-based-on-the-Occupancy-Date. 4. PropcVy Inspection. Buyer acknowledges that Buyer: a. [ ?] has made a complete inspection of the Property; or C b. [ ] will make a complete inspection of the Properly on or before the Occupancy Date. This inspection is the prc-scttlement inspection granted to Buyer in the Agreement for the Sale and Purchase of Real Estate, paragraph 14. Ai-tlto-time-of-this-Property-Inspection-Buyer-will-complete-and-sign.a-Pre-Settlement Walk-ThrougI -In&pcrlion-corm. . 5.Buyer's Default. The time for the performance of any of the obligations of this Addendum arc hereby agreed to be of the essence. Should Buyer fail or refuse to perform under the terms of this Addendum or of the Agreement for the Sale and Purchase of Real Estate of which it is a part: a. Buyer will immediately vacate the Properly and Seller shall be entitled to immediate possession.. Buyer agrees that Seller may institute proceedings to recover possession without providing prior notice. b. Seller may retain the security/damage deposit and apply it to unpaid fees, damages, or other sums owed by Buyer to Seller on account of this Addendum or the Agreement of which it is a part. Seller may also retain the purchase Deposit and the Additional Sales Deposit pursuant to the provisions of Paragraph 20 of the Agreement for the Sale and Pur- chase of Real Estate of which this is a part. c. Buyer shall pay to Seller all costs incurred in having Buyer removed from the Property including court costs and attorney fees. 6. Repairs. If, for any reason, Settlement does not take place, Buyer will repair all damages, completely clean the Property, and return it to Seller in the as good a condition as existed on the Occupancy Date. 7. Maintenance. Buyer agrees to maintain the Property in good condition, free of trash and debris, and to abide by all regula- tions of the Seiler relative to the occupancy. 8. Assignment. Buyer may not assign Buyer's rights under this Addendum or lease the Property to any party. 9. Conflict. The provisions of the Agreement for the Sale and Purchase of Real Property shall remain in full force and effect except for those provisions that are amended or superseded by this Addendum. 10. Personal Properly/Insurance. Seller is not responsible for Buyer's personal contents or other items placed on the Property. Buyer will obtain insurance coverage for personal property and Buyer's liability. Seller will maintain fire and casualty coverage and covc:agc for Seller's liability until settlement. 11. Entry. Seller or Seller's agent may enter the Property at any late in the event of emergency, otherwise on a weekly basis with 24 hours prior notice to Buyer. (LS;k S. Onl•O -) ' 12. Pets. Pets [xl will / [uahtaw be allowedAon the Property prior to settlement. ZLLJ 13. Changes to Properly. Buyer will not make any alterations, including painting or other improvements to the Property prior to settlement without the Seller's prior written permission. 14. Indemnification. Buyer will indemnify and hold harmless Seller, the Agents and Brokers, from all claims, lawsuits, and actions that arise from, or occur during Buyer's occupancy or use of the Property. In connection therewith, Buyer will defend Seller from all such suits and claims, and pay Seller's costs, including attorney fees and damages awarded. 15. FAX Agreement. This Addendum may be executed by the Buyer or Seller and transmitted to the other for execution by telefax. When executed and delivered in such manner, this Addendum will be binding as though executed by the parties on the original document. Witness: Sellel: ? 5 Date: '??c• A(. Witness Witness: //. ., Seller: Date: Date: P /_/Y. -??? 9G? Date: Witness: ?F??t4rti i •. Realty Associates, Inc. ADDENDUM l'O SALES AGREEMENT In reference to Agreement of Sale between x the Purchaser, and ?? ?X• u/"x•k..? The Seller, Dated ?. (J 9L covering the real property commonly known as ?v9 24 ?q 701 .A., the undersigned Purchaser and Seller hereby agree to the following: .C. , Al ,7 . y . y-I nn i-- - - The herein agreement, upon Its execution by both parties, Is herewith made an Integral part of the aforementioned Agreement of Sale. ?G, /9YL Dated: _ Ar, 1990- Dated:. --J,4(- -,,t ?"c•'?-?? Purchaser .1 Seller Purchaser Seller Witness .14 G o+ w.y. Agent Witness - e =?r?-•?.' Agent ROBERT L. WITMER, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY : PENNSYLVANIA VS. NO. 99-3292 Civil Term SCOTT T. POLLY and CARLA S. POLLY, CIVIL ACTION - LAW Defendants CERTIFICATE OF SERVICE I, Stephen G. Held, Esquire, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the attorney for Defendants, by First Class United States mail addressed as follows: Mary Kollas Kennedy, Esquire KOLLAS AND KENNEDY 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 Date July 7, 1999 Sl,pl n G. Held, Esquire r• uc c.. ii N OI W n Z W < wg' g <z Yao o i?o z 0 N w a n LL J < 0 Y a f u wn?um•eowut•vauo. moue -aw «to? ']MI'1rMlIlr1lVLNl ?u«c 1M M MdtNM Y'?V?T cult 1w ROBERT L. WITMER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : N0.99-3292 Civil Term SCOTT T. POLLY and CIVIL ACTION -LAW CARLA S. POLLY, Defendants NOTICE TO PLEAD TO: Mary A. Etter Dissinger, Esquire DISSINGER & DISSINGER 28 N. Thirty-Second Street Camp Hill, PA 17011 You are hereby notified to file a written response to the enclosed Answer to Amended Complaint with New Matter and Counterclaim within Twenty (20) days fi•om service hereof or a judgment may be entered against you. KOLLAS AND KENNEDY BY: Mary Kollas IC iedy, Esquire Supreme Cou D. No. 69246 KOLLAS AND KENNEDY 1104 Femwood Avenue, Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEY FOR DEFENDANTS ROBERT L. WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION - LAW ANSWER TO AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIM AND NOW come the Defendants, Scott T. Polly and Carla S. Polly, by and through their attorneys, Kollas and Kennedy, respectfully answer the Amended Complaint as follows: 1 Admitted. 2. It is denied that Scott T. Polly resides at the address listed in Plaintiffs Amended Complaint. Defendant, Scott T. Polly, an adult individual, currently resides at 2311 New York Avenue, Camp Hill, Cumberland County, Pennsylvania. It is admitted that Carla S. Polly resides at the address listed in Plaintiff's Amended Complaint. 3. Admitted. 4. Denied as stated. Plaintiffs Amended Complaint is unclear as to what premises Defendants possessed from August 1996 through mid-December 1998. Strict proof demanded at trial. 5. Denied as stated. Plaintiffs Amended Complaint is unclear as to what property Defendants are alleged to have damaged. It is specifically denied that Defendants damaged any property ofthe Plaintiffs. Strict proof demanded at trial. 6. Denied as stated. Plaintiff's averment is unclear as to what agreement it is referring. It is admitted that Defendants agreed to pay installments of One Thousand Dollars ($1,000.00) per month pursuant to the Agreement marked as Exhibit "A" to Plaintiff's Amended Complaint. 7. It is admitted that Defendants stopped paying installments pursuant to Plaintiff's Exhibit "A" after mid-December 1998. By way of further answer, Defendants vacated the premises located at 349 North 17th Street, Camp Hill, Pennsylvania as of December 12, 1998. 8. It is admitted that Defendant, Carla S. Polly, notified the Plaintiff via-letter dated November 14, 1998, that she intended to vacate the premises at 349 North 17th Street, Camp Hill, Pennsylvania. 9. Denied as stated. It is denied that further monthly payments are required by Plaintiffs Exhibit "A." Therefore, it is denied that Defendants have committed any failure or refusal pursuant thereto. Strict proof demanded at trial. 10. It is admitted that Defendants vacated the premises located at 349 North 17th Street, Camp Hill, Pennsylvania on or about December 12, 1998. COUNTI BREACH OF CONTRACT 11. Paragraphs 1-10 are incorporated therein by reference as though set forth in full below. 2 12. Plaintiffs Exhibit "N' is a legal document which speaks for itself. Therefore, no answer is required by Defendants. To the extent an answer is required, same is denied. Strict proof demanded at trial. 13. After reasonable investigation, Defendants are without information sufficient to admit or deny Plaintiff's awareness. To the extent an answer is required, same is denied. Strict proof demanded at trial. By way of further answer: a. Stains and mildew buildup on the interior of the premises was a condition which existed prior to Defendants taking possession of the premises. Strict proof demanded at trial. b. Defendants are aware of no problem with the garage roof and therefore deny any failure to repair. Strict proof demanded at trial. C. The leaking breezeway was a condition which existed prior to Defendants taking possession of the premises. Strict proof demanded at trial. d. Plaintiff instructed Defendants to remove the privacy fence in a letter dated November 26, 1998, at true and correct copy of which is attached hereto as Exhibit "1." The privacy fence was in disrepair at the time Defendants took possession of the premises and Defendants removed the fence because of the danger it posed to their minor children. e. Plaintiff gave Defendants permission in February of 1997 to remove the carpet from the living room, hallway and two bedrooms. Said carpet was rotting. 3 f. The doors to the basement den closet were reinstalled prior to Defendants vacating the premises. g. The duct cover was replaced prior to Defendants vacating the premises, h. The dehumidifier was reinstalled prior to Defendants vacating the premises. i. The shelf was stored in the basement closet at the time of Defendants vacating the premises. j. The Defendants did remove the closet and Plaintiff assented to such removal. k. Denied as stated. The living room wallpaper was removed, the walls were sanded smooth, and repainted with interior wall paint. 1. It is specifically denied that any painting by Defendants was done poorly. Strict proof demanded at trial. M. The outdoor brick barbeque was in such disrepair as to render it a danger. A tree limb had knocked the chimney down. Defendants then removed the brick barbeque. n. It is specifically denied that Defendants left the rear lawn damaged. Strict proof demanded at trial. 14. It :s specifically denied that any damage occurred at anytime while Defendants were in possession of the property located at 349 North 17th Street, Camp Hill, Pennsylvania. Strict proof demanded at trial. 4 15. After reasonable investigation, Defendants are without information sufficient to admit or deny the averments contained in this paragraph. To the extent an answer is required, same is denied. The averments of this paragraph also contain a legal conclusion to which no response is required. Strict proof demanded at trial. 16. Plaintiff's Exhibit "A" is a legal document which speaks for itself. Therefore, the averments contained in this paragraph require no answer by Defendants. To the extent an answer is required, same is denied. Strict proof demanded at trial. 17. It is specifically denied that Defendants failed to pay sewage charges attributable to the premises located at 349 North 17th Street, Camp Hill, Pennsylvania. Strict proof demanded at trial. 18. It is specifically denied that the Defendants have failed to fulfill their obligations under the terms of the contract. Strict proof demanded at trial. WHEREFORE, the Defendants, Scott T. Polly and Carla S. Polly, request that this Honorable Court enter an Order in their favor dismissing the suit against them with prejudice. COUNT II LOSS OF RENT 19. Paragraphs 1-18 are incorporated herein by reference as though set forth in full below. 5 20 It is specifically denied that the Defendants breached any Agreement with Plaintiff. It is specifically denied that Plaintiff was denied the opportunity to rent said premises. Strict proof demanded at trial. 21. It is specifically denied that Plaintiff was denied rent for the period in which Defendants were in possession of the property. Plaintiffs Exhibit "A" categorizes Eight Hundred Thirty One Dollars ($831.00) as rent of each monthly payment of One Thousand Dollars ($1,000.00) from Defendants to Plaintiff. This was received by Plaintiff as rent. See Plaintiff's Exhibit "A' addendum to Sales Agreement WHEREFORE, Defendants, Scott T. Polly and Carla S. Polly, respectfully request this Honorable Court to enter an Order in their favor and dismiss Count II of the Complaint against them. NEW MATTER 22. Paragraphs 1-21 are incorporated herein by references though set forth in full below. 23. Plaintiffs Amended Complaint fails to state a claim upon which relief may be granted. 24. The contract between the parties, marked at Plaintiffs Exhibit "A," provided that should the buyer fail to fulfill the terms of the Agreement all deposit monies paid by the Buyer on account of the purchase price may be retained by Seller as monies to be applied to the Seller's damages. 25. On or about December 1, 1998, Defendants believe and therefore aver that the monies paid by Buyer on account of the purchase price and held in escrow by Plaintiffs real estate agent totaled in excess of Six Thousand Fifty Six Dollars ($6,056.00.) 26. The escrow account containing in excess of $6,000.00 was relew.ed to Plaintiff by his real estate agent on or about November 17, 1998. 27. Pursuant to the terms of the Agreement between the parties, see Plaintiff's Exhibit "A," Paragraph 20, the deposit monies released to Plaintiff must be applied to any damages suffered by Plaintiff. 28. Defendants believe and therefore aver that any repairs they did to the property served to increase its value, and, as a result, Plaintiff has no damages. 29. Defendants request that if any judgment is entered against them, it must be offset by the escrow monies in excess of $6,056.00 already released to Plaintiff. AFFIRMATIVE DEFENSE OF IMPOSSIBILITY 30. Paragraphs 1-29 are incorporated herein by references as though set forth in full below. 31. Under the terms of the contract, Defendants were to obtain financing by October 15, 2001, to purchase the property at 349 North 17th Street, Camp Hill, Pennsylvania. 7 32. Defendants separated from each other on July 17, 1998. 33. The marriage of the Defendants is irretrievably broken. As a result, obtaining financing as anticipated under the contract has been rendered impossible. 34. It has become impossible for the Defendants to perform under the contract. Plaintiff's action for damages and for rent for any failure by Defendants to perform is barred. 35. It is further averred that Defendants have paid fair rental value for the time in which they possessed the premises. WHEREFORE, Defendants, Scott T. Polly and Carla S. Polly, respectfully request this Honorable Court find in their favor and dismiss the complaint against them. COUNTERCLAIM 36. Paragraphs 1-35 are incorporated herein by reference as though set forth in full below. 37. Defendant, Scott T. Polly, is an adult individual with a current residence of 2311 New York Avenue, Camp Hill, Cumberland County, Pennsylvania. 38. Defendant, Carla S. Polly, is an adult individual with a current residence of 8 South 15th Street, Camp Hill, Cumberland County, Pennsylvania. 39. Plaintiff, Robert L. Witmer, is a an adult individual with a current residence of 4 Carlton Court, Camp Hill, Cumberland County, Pennsylvania. 40. Plaintiff is liable to Defendant in an amount in excess of One Thousand One Hundred Dollars ($1,100.00) as a result of repairs and improvements made to the premises at 349 North 17th Street, Camp Hill, Cumberland County, Pennsylvania, between November 1996 and December 1998, including but not limited to: a. Replacement of a bathroom toilet and a removal of a shower door which was leaking water into the basement. b. Repair tank assembly of bathroom toilet downstairs. C. Replace spigot, add shut-off valve to outside front faucet. d. Removal of tree stump. e. Installation of new mailbox. f. Removal of cement footing for flagpole, dirt fill and reseeding. 9. Topsoil and reseeding. h. Increase value to structure on property from stripping wallpaper, painting living room and uncovering hardwood floors. i. Various yard work, including, reseeding entire yard, spot reseeding, fertilization and weed repellent, tan barking and addition of various plants. 9 WHEREFORE, Defendants, Scott T. Polly and Carla S. Polly, demand judgment be entered in their favor and against Plaintiff on Defendants' Counterclaim in the amount of One Thousand One Hundred Dollars ($I, 100.00) together with court costs and fees or that in the event Plaintiff has judgment against the Defendants on Plaintiff's cause of action that Plaintiff'''s judgment be set off to the extent that Plaintiffs judgment exceeds Defendant's recovery. RESPECTFULLY SUBMITTED: Mary Kollas a edy, Esquire Supreme Cou D. No. 69246 KOLLAS AND KENNEDY 1104 Fernwood Avenue, Suite 104 Camp Hill, PA 17011 (717)731-1600 ATTORNEY FOR DEFENDANTS _7121 DATED: 10 ROBERT L. WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Tenn CIVIL ACTION - LAW I, SCOTT T. POLLY, verify that the statements made in the foregoing ANSWER TO AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIM 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. DATE: 1-Z7-gci By: L/, % SCOTT T. POLLY ROBERT L. WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION - LAW I, CARLA S. POLLY, verify that the statements made in the foregoing ANSWER TO AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIM 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 unswom falsification to authorities. DATE: I.2-1-g9 By: &6t 4wo' CARLA S. POLLY 0 November 26,1999 I of 2 Scott and Carla Polly (Buyers) requirements, labeled (B), for returning the property at 349 North 17th Street Camp Hill, PA. 17011, to Robert L. Witmer (Seller). (B) Monthly mortgage payment from Scott and Carla Polly (Buyers) is due December 5th. 1998 in the amount of $415.50 (cash or Money Order only) payable to Robert L. Witmer (Seller). (B) If payment is not received by D&=Mber 5. 1998, the full monthly amount of 51000.00 will be paid by Scott and Carla Polly (Buyers), payable by Cash or Money Order only, and payable to Robert L. Witmer (Seller), This amount covers the monthly rent payment and escrow money that would normally be due for the month of December 1998. (B) It is agreed that all furniture removed by Scott Polly (Buyer) from the premises at 349 North 17th Street, left there by Robert L. Witmer (Seller), will be returned to 349 North 17th Street, Camp Hill, PA. 17011 in the same condition as it was when it was removed. Refer to the Agreement For the Sale and Purche_ a of Real Estate, Paragraph I1 Personalty, and the Addendum to Sales Agreement; Paragraph labeled Furniture. This furniture must be returned no later than Saturday December 5, 1998. Fumiture is to be inspected by Robert L. Witmer (Seller) in the presence of both Scott and Carla Polly (Buyers), to determine if in fact the furniture has sustained any damage. Scott Polly (Buyer) will be responsible for any replacement or repair costs. Also, the furniture will be placed in the garage at 349 North 17th Street Camp Hill, PA. 17011 and covered by clean white sheets. From the Pre-Settlement Possession Addendum of the Sales Agreement Paragraph 6 Repairs; If, for any reason, Settlement does not take place, Buyer will repair all damages, completely clean the Property, and return it to Seller in the as good condition, free of trash and debris, and to abide by all regulations of the Seiler relative to the occupancy (B) Scott and Carla Polly (Buyers) will be responsible for the cleaning of the interior at 349 North 17th Street Camp Hill, PA. 17011. This will include, and not limited too, the removal of any stains or repairs on the carpet in the lower level and the removal of all mildew build-up and repainting, if necessary, on the interior of all windows and walls. Robert L. Witmer (Seller) will pay for the repairs to the exterior Breezeway and Garage Roof ($1582.00). Robert L. Witmer (Seller) will pay for the replacement of the Privacy Fence and Gate.($1000.00) Robert L. Witmer (Seller) will pay for the reinstallation of the carpeting in the first floor living room, hallway and 2 upstairs bedrooms. ($958.00) (B) Scott and Carla Polly (Buyers) will pay Robert L. Witmer (Seller) $500.00 towards the repairs that must be made to the damaged interior Breezeway. This is the room located between the kitchen and the garage. Payment must be made on or before the final walkthrough on Sunday December 13, 1998. Cash or Money Order (payable to Robert L. Witmer (Seller) ) only. (B) Scott and Carla Polly(Buyers) will be responsible for the removal of the original privacy fencing from the property at 349 N. 17th Street Camp Hill, PA. 17011. (B) Scott and Carla Polly (Buyer) will be responsible for re-installing and/or replacing the doors that were removed from the basement den closet and reinstall and/or replace the duct vent cover in the basement barroom. EwEXHUNT t nwainaw November 26,1998 2of2 (B) Scott and Carla Polly (Buyers) will be responsible for re-installing the dehumidifier in the washroom in the basement. It is to reinstalled on a shelf similar in size and strength to the one that was removed. This reinstallation will include reinstalling the hose from the back of the dehumidifier and connected to the dmin pipe where the washer drains off its water. Draining of water from the dehumidifier through the hose to the drain pipe must be in proper working order. (B) All garage door openers and keys will be returned to Robert L. Witmer (Seller) on Sunday December 13, 1998. A final walkthrough will be conducted by Robert L. Witmer (Seller) in the presence of both Scott a IM. nd Carla Polly (Buyers). This w•alkthrough will be conducted at 12:00 o m on S mdav mb r 1 Scott and Carta Polly (Buyers) are responsible for repairin Wallet g any new damages discovered during the walkthrough. (B) Scott and Carla Polly (Buyers) will sign and date to confirm that you have read and will comply with all requirements labeled (B), for returning the property to Robert L. Witmer (Sellee) an December 13, 1998. all re (B) Scott and Carla Polly (Buyers) will provide Robert L. Witmer (Seller) with a forwarding address and telephone number. (B) Please return this document to Robert L. Witmer (Seller) no later than Friday December 4, 1998. Mail to Robert L. Witmer, 4 Carleton Court Camp Hill, PA. 17011 Failure to comply with any of the aforementioned items labeled '(B)' or modify any of the aforementioned items labeled 'M' or failure to sign and complete all information on this document, will result in Robert L. Witmer (Seller) taking legal action against Scott and Carla Polly (Buyers). Scott and Carla Polly (Buyers), will also reimburse Robert L. Witmer (Seller) for any legal fees that Robert L. Witmer (Seller) may incur. Refer to the Pre-Settlement Possession Addendum to Agreement of Sale, Paragraph 14 - Indemnification. Carla Polly (Sign) Date Forwarding Address: (Please Print) Telephone: Scott Polly (Sign) Forwarding Address: (Please Print) Date Telephone: Sinc ? Robert L. Winner ROBERT L. WITMER, Plaintiff V. SCOTT T. POLLY and CARLA S. POLLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION - LAW I, Carole A. Rose, of the Law Offices of Kollas and Kennedy, hereby certify that I have this 27th day of July, 1999, served a true and correct copy of ANSWER TO AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIM by depositing same in the United States mail, first class, postage prepaid, addressed to the following: Mary A. Etter Dissinger, Esquire DISSINGER & DISSINGER 28 N. Thirty-Second Street Camp Hill, PA 17011 Attorney for Plaintiff LAW OFFICE OF KOLLAS AND KENNEDY BY: OAL&. I • IW? Carole A. Rose r i 1 -' lJ W ~ a ? a a o w w z Enz ^ ° G4 E W l7 E E zE Z3rn- Z ° °w ?g° '" ua 14 z ° z H ° W wU 2?, w u a W at 2 Zo °o u Fw aa4J Qz O ce z W Ez4 Z HtW as C uwozan 5az 3d Ww o ° ^ rnH J r Ea z «?a °x.?NF a C E W N m4 ? D E(!1 H W E p m ° W F N? ?H HU W a Q ° £ Q Q U Z 7 F. W p 4 Z •J w °x tns OW H LU w Enu az Y T L. WITMER, Plaintiff VS. SCOTT T. POLLY and CARLA S. POLLY, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA NO. 99-3292 Civil Term CIVIL ACTION - LAW RESPONSE TO DEFENDANTS' NEW MATTER AND COUNTERCLAIM AND NOW comes the Plaintiff and responds as follows: NEW MATTER 22. No response required. 3. Denied. It is denied Plaintiff's amended complaint failed to tate a claim upon which relief may be granted. 24. Denied. To the extent that Defendants contend that this is the only option allowed as set forth in their Paragraph t24 of New !Satter, the same is denied. It is denied that the contract between the parties provides only that should the Buyer fail to fulfill the terms of the agreement, the deposit monies paid by :hem on account of the purchase price may be retained by Seller as conies to be applied to Seller's damages. 25. Denied. It is denied that Plaintiff's real estate agent held funds in excess of Six Thousand Fifty Six Dollars ($6,056.00). It is further denied that the monies paid by Buyer on account of the purchase price were held in escrow by Plaintiff's real estate agent. 26. Denied. It is denied that the escrow account contained in excess of $6,000.00. It is further denied that any sum in excess of $6,000.00 was released to Plaintiff by his real estate agent on or about November 17, 1998. 27. Denied. It is denied that pursuant to the terms of the agreement of the parties the deposit monies released to Plaintiff must be applied to damages suffered by Plaintiff. 28. Denied. Plaintiff is without knowledge as to what Defendants believe and therefore the same is denied and proof thereof is demanded at time of trial. It is denied that Defendants performed any repairs to the property. It is denied that the Defendants did anything to increase the value of the property. It is denied that Plaintiff has no damages. 29. Denied. It is denied that Defendants are entitled to have Six Thousand Fifty Six Dollars ($6,056.00) they claim was released to Plaintiff utilized to offset damages suffered by Plaintiff as a result of Defendants' damage to the property. AFFIRMATIVE DEFENSE OF IMPOSSIBILITY I . No response required. 1. Admitted. 32. Denied. Plaintiff is without knowledge of the same and therefore the same is denied and proof thereof demanded at time of trial 33. Denied. Plaintiff is without knowledge as to whether or not the Defendants' marriage is irretrievably broken. Therefore, the same is denied and proof thereof is demanded at time of trial. It is further deniei that whether or not the Defendants, marriage is irretrievably broken, it does not render their performance of the contract impossible. By way of further answer, it is averred that whether or not the parties are separated, financing is not precluded and therefore performance of the contract was not and is not impossible. 4. Denied. It is denied that it had become impossible for the efendants to perform under the contract. It is denied that laintiff's remedies are barred. 35. Denied. it is denied that the Defendants have paid fair rental value for the time they were in possession of the premises. It is further denied that Plaintiff has only one remedy. WHEREFORE, Plaintiff respectfully requests the Court to dismiss and ignore the affirmative defenses raised by Defendants in their answer to Plaintiff's Amended Complaint. COUNTERCLAIM 6. No response required. 7. Denied. Plaintiff is without knowledge as to whether or not efendant, Scott T. Polly has moved from the residence indicated o Plaintiff by Mr. Polly at the time he left the premises, which s the subject of this suit, and therefore the same is denied and roof thereof is demanded at time of trial. 38. Admitted. 39. Denied. It is denied that the Plaintiff resides at 4 Carlton Court, Camp Hill, Cumberland County, Pennsylvania. By way of further answer, it is averred that the Plaintiff reesides at 4 Carleton Court, Camp Hill, Cumberland County, Pennsylvania. . Denied. It is denied that Plaintiff is liable to Defendants r a sum in excess of One Thousand Dollars ($1,000,00). It is rther denied that Defendants conducted any repairs or provements to the premises at 349 North 17th street, Camp Hill, mberland County, Pennsylvania, at any time: a. Denied. Plaintiff is without knowledge as to whether or not Defendants replaced a bathroom toilet and removed a shower door which were leaking water into the basement, and therefore the same is denied and proof thereof is demanded at time of trial. It is further denied that any such action by the Defendants served to increase the value of the premises. b. Denied. Plaintiff is without knowledge as to the allegations set forth in Paragraph 40. b. and therefore the same is denied and proof thereof is demanded at time of trial. Plaintiff further avers that even if a toilet tank assembly were repaired, such constitutes. maintenance and did not serve to increase the value of the premises at 349 North 17th Street, Camp Hill, Cumberland County, Pennsylvania. C. Denied. Plaintiff is without knowledge as to whether or not Defendants replaced a spigot and added a shut-off valve to the outside front faucet, and therefore the same is denied and proof thereof is demanded at time of trial. Plaintiff further avers that if a spigot was replaced and a shut-off valve was added to outside front. faucet, the same is maintenance and did not serve to increase the value of the premises. d. Denied. Plaintiff is without knowledge as to whether or not Defendants removed a tree stump, and therefore the same is denied and proof thereof is demanded at time of trial. By way of further answer, Plaintiff avers removal of a tree stump did not and does not constitute an improvement to the premises which would increase the value of the premises. e. Denied. Plaintiff is without knowledge as to whether or not Defendants installed a mailbox, and therefore the same is denied and proof thereof is demanded at time of trial. By way of further answer, Plaintiff avers installation of a mailbox did not and does not constitute an improvement to the premises and would not increase the value of the property. f. Denied. Plaintiff is without knowledge as to whether or not Defendants removed cement footing for flagpole, added dirt fill and reseeded and therefore the same is denied and proof thereof is demanded at time of trial. By way of further answer, Plaintiff avers removal of cement footing for flagpole, adding dirt fill and reseeding did not and does not constitute an improvement to the premises and would not increase the value of the property. g. Denied. Plaintiff is without knowledge as to whether or not Defendants replaced topsoil and reseeded and therefore the same is denied and proof thereof is demanded at time of trial. By way of further answer, Plaintiff avers replacing topsoil and reseeding did not and does not constitute an improvement to the premises and would not increase the value of the property. h. Denied. Plaintiff is without knowledge as to whether or not Defendants stripped wallpaper, painted the living room and uncovered hardwood floors and therefore the same is denied and proof thereof is demanded at time of trial. By way of further answer, Plaintiff avers stripping of the wallpaper, the painting of the living room, and the uncovering of the hardwood floors as done by Defendants actually caused a significant decrease in the value of the property. i. Denied. Plaintiff is without knowledge as to whether or not Defendants did various yard work, including, reseeding the entire yard, spot reseeding, added fertilization and weed repellant, tan barking and addition of various plants and therefore the same is denied and proof thereof is demanded at time of trial. By way of further answer, Plaintiff avers that if there was any yard work done, if there was any reseeding done, if there was any spot reseeding done, if there was any fertilization and weed repellant used, and if any tan bark or various plants were added, they did not increase the value of the premises. WHEREFORE, Plaintiff demands that the Counterclaim of Defendants be dismissed. Respectfully submitted, DISSINGER 6 DISSINGER Mary A. Etter Dissinger, Er uIre Attorney for Plaintiff 28 North 32nd Street Camp Hill, PA 17011 717-975-2840 VERIFICATION I, Robert L. Witmer, verify that the statements made in this Response to Defendants' New Matter and Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 54904 relating to unsworn falsification. Rrt L. Witmer, F ntiff ROBERT L. WITMER, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY : PENNSYLVANIA VS. NO. 99-3292 Civil Term SCOTT T. POLLY and CARLA S. POLLY, CIVIL ACTION - LAW Defendants CERTIFICATE OF SERVICE I, Mary A. Etter Dissinger, Esquire, hereby certify that on the date set forth below I served a true and correct copy of the foregoing document upon the attorney for Defendants, by First Class United States mail addressed as follows: Mary Kollas Kennedy, Esquire KOLLAS AND KENNEDY 1104 Fernwood Avenue, suite 104 Camp Hill, PA 17011 Date: Mary. . Etter D ss nge Esqu re ROBERT L. WITMER, Plaintiff ) Vs. ) SCOTT T. POLLY and ) CARLA S. POLLY, Defendants CA In The Court of Cc=am ?leas of Cumberland Cbuncy, ?e^.nsy1-rania vo 99-3292 CIVIL TERM CIVIL ACTION - LAW tie do solemnly swear (or a=_:ra) thac we w'_1 support., obey and defend -`:e Constitution of the Qnited States and tae Constituticn of this Com?on- ,eslth and that we will. discharge the duties of our c: aca withh _idelit-r. de, tae undersigned a=bi:_at.crs, av.=z been d.:17 ampcintad and sworn (c= a_:i=ned), maka ce iollcw^=g a•.:a_d: (`Tote: I: damages for de-la-.7 are awariad, trey shall *--a se?a=atel7 stated.) ..U- ?- E0 Cs t & ? A."cpa yjG c dh e u'' let' c'.&" &&,., . .•' l - ) .ate c' wa=d: Ycw, _ ae.???;f sum=` -.as ant.arad u=cn ;a=pas or cae.:= att..:- ?"-`___3:..:, ...SS 2n t.5. (-=se7= =:.=e '_- J?wrdR.i/ r 2000 r 3C ,???,?J •'. , tae dcckac and Mize by par •Vrs. kv awaa , A ted, .Gc.d l.ra. 4 - Y - v o C-2