HomeMy WebLinkAbout01-6062IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
V.
ERNEST A. CLAWSER, m,
Defendant
CIVIL ACTION - EQUITY
No:O/-
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue a Writ of Summons in the above-captioned matter against the following
Defendant:
Ernest A. Clawser,
1341 Old Willow Mill Road
Mechanicsburg, Pennsylvania 17055
Further, please enter this as a Lis Pendens on the property known as Lot Number 4, Old
Willow Mill Road, Mechanicsburg, Cumberland County, Pennsylvania 17055.
Respectfully Submitted,
LAW OFFICE OF MICHAEL J. HANFT
Date: October 22, 2001
MiChael J. Hanft, Es/~uir~ ~'
Attorney I.D. No. 57976
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, III,
Defendant
TO ERNEST A. CLAWSER, III:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CWIL ACTION - EQUITY
No:
WRIT OF SUMMONS
You are hereby notified that David W. Hall has commenced an action against you.
Date:
Prothonotary
By:
Deputy
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, IH,
Defendant.
CIVIL ACTION - EQUITY
No.: 01=6062
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Please take notice that Ernest A. Clawser, III, Defendant in the above-captioned action,
hereby appears in the above-captioned action by his attorneys, Gates & Associates, P.C. and such
counsel hereby enters its appearance pursuant to Pa.R.C.P. 1012.
Respectfully submitted,
GATES & ASSOCIATES, P.C.
DATE: October ;~0, 2001
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Praecipe to Enter Appearance, has been served upon the following counsel of record by first class
mail, postage prepaid, addressed as follows:
Michael J. Hanf~, Esquire
LAW OFFICE OF MICHAEL J. HANFT
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES & ASSOCIATES, P.C.
DATE: October 30, 2001
.~lbert N~ P~ter~n;E-squ[r~ v, ~
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
SHERIFF'S RETURN
CASE NO: 2001-06062 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HALL DAVID W
VS
CLAWSER ERNEST A III
- REGULAR
DAWN KELL , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
CLAWSER ERNEST A the
DEFENDANT , at 1800:00 HOURS,
at 1341 OLD WILLOW MILL ROAD
MECHANICSBURG, PA 17055
on the 29th day of October , 2001
HEATHER WILKINSON
a true and attested copy of WRIT OF SUMMONS
by handing to
(GIRLFRIEND)
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 6.50
Affidavit .00
Surcharge 10.00
.00
34.50
Sworn and Subscribed to before
me this ~ day of
A.D.
/ /-Prothonotary ! '
So Answers:
~l. ~ Kline~
10/30/2001
MICHAEL H3LNFT
By: ~o~
Deputy Sheriff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, HI,
Defendant.
CIVIL ACTION - EQUITY
No.: 01-6062
PRAEC1PE TO ENTER RULE UPON
THE PLAINTIFF TO FILE COMPLAINT
TO THE PROTHONOTAKY:
Please enter a rule, pursuant to Pa.R.C.P. 1037(a), upon the Plaimiffto file a complaim
within twenty (20) days after service of said rule.
Respectfully submitted,
GATES & ASSOCIATES, P.C.
DATE: November 14, 2001
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
And now, this Nov~nber 15,
above Praecipe.
2001, a Rule is issued in accordance with the
Curtis R. Long,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
CWIL ACTION - EQUITY
ERNEST A. CLAWSER, m, :
Defendant :
No. 01-6062
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by 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 fights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
Lawyer Referral Service
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, m,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
No. 01-6062
COMPLAINT
AND NOW, this 5th day of December, 2001, comes the Plaintiff, David W. Hall, by and
through his counsel, the Law Office of Michael J. Hanfi, and files the following Complaint, and
in support thereof avers as follows:
1. Plaintiff, David W. Hall, is an adult individual with an address of 132 Porter
Avenue, Carlisle, Cumberland County, Pennsylvania 17013.
2. Defendant, Ernest A. Clawser, 1II, is an adult individual with an address of 1341
Old Willow Mill Road, Mechanicsburg, Cumberland County, Pennsylvania 17055.
3. Plaintiffbelieves, and therefore avers, that Defendant is the legal owner of that
certain parcel of land, which property is subject of this dispute, otherwise known as Lot Number
4, Old Willow Mill Road in Mechanicsburg, Cumberland County, Pennsylvania (hereinafter
"Premises").
4. On March 27, 2001, Plaintiff and Defendant entered into a written agreement for
the sale of the Premises from Defendant to Plaintiff(hereinafter "Agreement of Sale"). A copy
of the Agreement of Sale is attached hereto as Exhibit "A" and by reference incorporated herein
and made a part hereof.
5. Plaintiff tendered to Defendant the sum of Two Thousand ($2000.00) Dollars as
earnest money deposit (hereinafter "Deposit").
6. Pursuant to the Agreement of Sale, Plaintiffs Deposit would he non-refundable
thirty (30) days after March 27, 2001.
The Agreement is silent as to a terminal date for Plaintiff to settle on the
Premises.
8.
9.
10.
Plaintiff desires to purchase the Premises.
Defendant has not refunded Plaintiff's Deposit.
Defendant refuses to sell Plaintiff the Premises pursuant to the Agreement of Sale
attached hereto as Exhibit "A" and by reference incorporated herein and made a part hereof.
11. There are no other written agreements between the Parties regarding the Premises.
WHEREFORE, Plaintiff requests this Honorable Court grant Specific Performance of the
Agreement of Sale of the Premises in favor of Plaintiff and against Defendant.
Respectfully Submitted,
LAW OFFICE OF MICHAEL J. HANFT
Lindsay D. Gingrich
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
F:\U~r Fold~kFirm Dec./G~ndc~$2001k219S-2 compla/nt wpd Attorneys for Plaintiff
Verification
I verify that the statements made in the foregoing Complaint are true and correct to the best
of my knowledge, information and belief. This Verification is made by Plaintiff's counsel based
upon information provided by Plaintiff to Plaintiff's counsel regarding the factual averments
contained herein. I understand that false statements herein are made subject to the penalties of 18
Pa. C. S. Section 4904, relating to unsworn falsification to authorities.
CERTIFICATE OF SERVICE
AND NOW, this 5th day of December, 2001, I, Lindsay D. Gingrich, Esquire, hereby certify
that I have this day served the following persons with a copy of the foregoing document, by first
class, United States Mail, postage pre-paid, addressed as follows:
Albert N. Peterlin, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Road, Suite 100
Lemoyne, Pennsylvania 17043
LAW OFFICE OF MICHAEL J. HANFT
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attomeys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff, :
..
_,
ERNEST A. CLAWSER, IH, :
_.
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
NOTICE TO PLEAD
TO: David W. Hall
You are hereby notified to file a written response to the enclosed Answer, New Matter
and Counterclaim of the Defendant within twenty (20) days from service hereof or a judgment
may be entered against you.
Respectfully submitted,
GATES & ASSOCIATES, P.C.
DATE: December 7, 2001
Albert N~. Peterlin, Esquire~ J
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
CERTH~ICATE OF SERVICE
I, Albert N. Peteflin, Esquire, hereby certify that a true and correct copy of the foregoing
Answer, New Matter and Counterclaim of the Defendant, has been served upon the following
counsel of record by first class mail, postage prepaid, addressed as follows:
Michael J. Hanft, Esquire
LAW OFFICE OF MICHAEL J. HANFT
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES & ASSOCIATES, P.C.
DATE: December 7, 2001
AIb~e¥[l~. Pe~eriin, l~s~ui~e ~ 'V
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
Deposit check # 1447 for $ 2000.00 towards the purcha~ price ors 37,000.00 for lot # 4
On Old Willow Mill Road will Im r~fundable for a maximum of 30. days beginning on
March 27, 2001.
David W. Hall
Era.st A. Clawser HI
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, III,
Defendant
CIVlL ACTION - EQUITY
No. 01-6062
NOTICE TO PLEAD
TO: ERNEST A. CLAWSER, Ill, and his attorney, ALBERT N. PETERLIN, ESQUIRE
You are hereby notified to plead to the attached Preliminary Objections within twenty
(20) days from service hereof or a default judgment may be entered against you.
HANFT & KNIGHT, P.C.
Date: January 4, 2002
Lindsay Gingrich Maclay, Esquire
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiff, David W. Hall
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, III,
Defendant
CIVIL ACTION - EQUITY
No. 01-6062
PRELIMINARY OBJECTIONS OF PLAINTIFF, DAVID W. HALL, TO
DEFENDANT'S NEW MATTER AND COUNTERCLAIM
AND NOW, this 4th day of January, 2002, comes the Plaintiff, David W. Hall
(hereinafter "Plaintiff Hall"), by and through his attorneys, Hanft & Knight, P.C., and files the
following Preliminary Objections to Defendant's New Matter and Counterclaim, and in support
hereof, avers as follows:
PRELIMINARY OBJECTION FOR INSUFFICIENT SPECIFICITY IN A PLEADING
1. On or about December 5, 2001, PlaintiffHall filed a Complaint in the above-
referenced matter. A copy of Plaintiff Hall's Complaint is attached hereto as Exhibit "A".
2. On or about December 7, 2001, Defendant, Ernest A. Clawser, III (hereinafter
"Defendant Clawser"), filed an Answer, New Matter, and Counterclaim. A copy of Defendant
Clawser's Answer, New Matter, and Counterclaim is attached hereto as Exhibit "B".
3. Paragraphs 13 through 18 of Defendant Clawser's New Matter states that Plaintiff
Hall has failed to state a claim upon which relief can be granted; that his claim is barred by
failure of consideration; that his claim is barred by the Statute of Frauds; that his claim is barred
by Justification; by laches; and by waiver and/or estoppel.
4. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file preliminary
objections to any pleading on the grounds of insufficient specificity of the pleading.
5. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose
of which is to require the pleader to disclose the material facts sufficient to enable the adverse
party to prepare his case.
6. In his New Matter, Defendant Clawser fails to in any way enumerate how Plaintiff
Hall "failed to state a claim upon which relief can be granted."
7. In his New Matter, Defendant Clawser fails to in any way enumerate how Plaintiff
Hall's claim "is barred by failure of consideration" by offering no more specificity in his
pleading than to say in Paragraph 14 of Defendant Clawser's New Matter that "Plaintiff has
failed to perform his obligations pursuant to the parties' agreement."
8. In his New Matter, Defendant Clawser fails to with any specificity state how
Plaintiff Hall's claim is "barred by the Statute of Frauds."
9. In his New Matter, Defendant Clawser fails to in any way enumerate any reasons
or facts to support the averment that Plaintiff Hall's claim is "barred by justification."
10. In his New Matter, Defendant Clawser fails to enumerate any reason or facts to
support the averment that Plaintiff Hall's claim is "barred by laches."
11. In his New Matter, Defendant Clawser fails to enumerate any reasons or facts to
support the averment that Plaintiff Hall's claim is "barred by the doctrines of waiver and/or
estoppel."
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and dismiss Defendant Clawser's New Matters for failure to
comply with Pennsylvania Rule of Civil Procedure 1019(a).
PRELIMINARY OBJECTION IN THE NATURE OF FA/LURE OF A PLEADING TO
CONFORM TO RULE OF COURT
12. Paragraphs 1 through 11 are incorporated by reference as if fully set forth herein.
13. Paragraphs 13 through 18 of Defendant Clawser's New Matter states that Plaintiff
Hall has failed to state a claim upon which relief can be granted; that his claim is barred by
failure of consideration; that his claim is barred by the Statute of Frauds; that his claim is barred
by Justification; by laches; and by waiver and/or estoppel.
14. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading.
15. In his New Matter, Defendant Clawser fails to enumerate with any specificity how
Plaintiff Hall "failed to state a claim upon which relief can be granted."
16. In his New Matter, Defendant Clawser fails to enumerate how Plaintiff Hall's
claim is barred by failure of consideration by offering no more specificity in his pleading than to
state in Paragraph 14 that "Plaintiff has failed to perform his obligations pursuant to the parties'
agreement."
17. In his New Matter, Defendant Clawser fails to specifically state with any
specificity how Plaintiff Hall's claim is barred by the Statute of Frauds.
18. In his New Matter, Defendant Clawser fails to enumerate any reasons or facts to
support the averment that Plaintiff Hall's claim is barred by justification.
19. In his New Matter, Defendant Clawser fails to enumerate any reason or facts to
support the averment that Plaintiff Hall's claim is barred by laches.
20. In his New Matter, Defendant Clawser fails to enumerate any reasons or facts to
support the averment that Plaintiff Hall's claim is barred by the doctrines of waiver and/or
estoppel.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and dismiss Defendant Clawser's New Matters for failure to
comply with Pennsylvania Rule of Civil Procedure 1019(a).
PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER
21. Paragraphs 1 through 20 are incorporated by reference as if fully set forth herein.
22. Paragraph 4 of Defendant Clawser's Counterclaim alleges that Plaintiff Hall's
filing of his Complaint was "arbitrary, vexatious, and/or in bad faith."
23. Other than so stating in Paragraph 4 of the Countemlaim, Defendant Clawser fails
to specifically state with any specificity how Plaintiff Hall's Complaint was arbitrary, vexatious
and/or in bad faith.
WHEREFORE, Plaintiff, David W. Hall, requests that this Honorable Court grant his
Preliminary Objection and dismiss Defendant Clawser's prayer for "costs, attorney's fees, and
such other relief as the court deems just and proper."
PRELIMINARY OBJECTION FOR INSUFFICIENT SPECIFICITY IN A PLEADING
24. Paragraphs 1 through 23 are incorporated by reference as if fully set forth herein.
25. In Paragraph 3 of his Counterclaim, Defendant Clawser claims that "Plaintiff
failed to satisfy his obligations on or before April 25, 2001;" however, Defendant Clawser fails
to enumerate, which of his "obligations" Plaintiff Hall allegedly failed to satisfy.
26. In Paragraph 4 of his Counterclaim, Defendant Clawser claims that "Plaintiff's
commencement of this matter constitutes conduct that is arbitrary, vexatious and/or in bad faith;"
however, Defendant Clawser fails to enumerate how Plaintiff Hall's conduct constitutes that
which is "arbitrary, vexatious and/or in bad faith."
27. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file preliminary
objections to any pleading on the grounds of insufficient specificity of the pleading.
28. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose
of which is to require the pleader to disclose the material facts sufficient to enable the adverse
party to prepare his case.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and dismiss Defendant Clawser's New Matters for failure to
comply with Pennsylvania Rule of Civil Procedure 1019(a).
Respectfully Submitted,
HANFT & KNIGHT, P.C.
Attorney i.D.~No. 57975 ~
Lindsay Gingrich Maclay
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, this 4th day of January, 2002, I, Lindsay Gingdch Maclay, Esquire, hereby
certify that I have this day served the following persons with a copy of the foregoing document,
by first class, United States Mail, postage pre-paid, addressed as follows:
Albert N. Peterlin, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Road, Suite 100
Lemoyne, Pennsylvania 17043
HANFT & KNIGHT, P.C.
~7M9~4aYl E~luire ~[
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Exhibit A
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff :
: CWIL ACTION - EQUITY
: No. 01-6062 ~. r ~ ...
ERNEST A CLAWSER, ~ , ~,'
Defendant
NOTICE --; "~ · -,
You have been sued in court. If you Wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
court without further notice for any money claimed in the complaint or for any other claim or
relief requested by the plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
Lawyer Referral Service
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
NOTICIA
Le hah demandado a usted en la corte. Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir dc la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado
y archivar en la corte en forrna escrita sus de£ensas o sus objeciones a las demandas en contra dc su
persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso o notifica¢ion y por cualguier queja o alivio que es pedido en la peticion
de demanda. Usted puede perder dinero o sus propiendades o otros derechos importantes para usted.
LLEVE ESTA DEMANDAA UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO O SI NO TIENE EL DINERO SOFICIENTE DE PAGAR TAL SERVICO,
VAYA EN PERSONAL O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Bar Association
Lawyer Referral Service
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
LAW OFFICE OF MICHAEL J. HANFT
Attorney I.D. No. 57976
Lindsay D. Gingrich
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013 -9142
(717) 249-5373
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff :
: CIVIL ACTION - EQUITY
V. :
: No. 01-6062
ERNEST A. CLAWSER, lyI, :
Defendant :
COMPLAINT
AND NOW, this 5th day of December, 2001, comes the Plaintiff, David W. Hall, by and
through his counsel, the Law Office of Michael $. Hanft, ~d files the following Complaint, and
in support thereof avers as follows:
1. Plaintiff, David W. Hall, is an adult individual with an address of 132 Porter
Avenue, Carlisle, Cumberland County, Pennsylvania 17013.
2. Defendant, Ernest A. Clawser, III, is an adult individual with an address of 1341
Old Willow Mill Road, Mechanicsburg, Cumberland County, Pennsylvania 17055.
3. Plaintiff believes, and therefore avers, that Defendant is the legal owner of that
certain parcel of land, which property is subject of this dispute, otherwise known as Lot Number
4, Old Willow Mill Road in Mechanicsburg, Cumberland County, Pennsylvania (hereinafter
"Premises").
4. On March 27, 2001, Plaintiff and Defendant entered into a written agreement for
the sale of the Premises from Defendant to Plaintiff(hereinafter "Agreement of Sale"). A copy
of the Agreement of Sale is attached hereto as Exhibit "A" and by reference incorporated herein
and made a part hereof.
Premises.
8.
9.
10.
5. Plaintifftendered to Defendant the sum of Two Thousand ($2000.00) Dollars as
earnest money deposit (hereinafter "Deposit").
6. Pursuant to the Agreement of Sale, Plaintiff's Deposit would be non-refundable
thirty (30) days after March 27, 2001.
The Agreement is silent as to a terminal date for Plaintiffto settle on the
Plaintiffdesires to purchase the Premises.
Defendant has not refunded Plaintiff's Deposit.
Defendant refuses to sell Plaintiff the Premises pursuant to the Agreement of Sale
attached hereto as Exhibit "A" and by reference incorporated herein and made a part hereof.
11. There are no other written agreements between the Parties regarding the Premises.
WHEREFORE, Plaintiff requests this Honorable Court grant Specific Performance of the
Agreement of Sale of the Premises in favor of Plaintiff and against Defendant.
Respectfully Submitted,
LAW OFFICE OF MICHAEL J. HANFT
Lindsay D. Gingrich
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attomeys for Plaintiff
I verify that the statements made in the foregoing Complaint are true and correct to the best
of my knowledge, information and belief. This Verification is made by Plaintiff's counsel based
upon information provided by Plaintiff to PlaintifFs counsel regarding the factual averments '
contained herein. I understand that false statements herein are made subject to the penalties of 18
Pa. C. S. Section 4904, relating to unsworn falsification to authorities.
h, F~qt~re J
CERTIFICATE OF SERVICE
AND NOW, this 5th day of December, 2001, I, Lindsay D. Gingrich, Esquire, hereby certify
that I have this day served the following persons with a copy of the foregoing document, by first
class, United States Mail, postage pre-paid, addressed as follows:
Albert N. Peterlin, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Road, Suite 100
Lemoyne, Pennsylvania 17043
LAW OFFICE OF IVlICHAEL J. HANFT
C_~grich//- ' ~
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, : CIVIL ACTION - EQUITY
;
Plaintiff, : No.: 01-6062
;
V. ~
;
ERNEST A. CLAWSER, IH, :
Defendant. :
AMENDED ANSWE1L NEW MATTER AND
COUNTERCLAIM OF THE DEFENDANT
The Defendant, Ernest A. Clawser, III ("Clawser"), by and through his attorneys, Gates,
Haibruner & Hatch, P.C., respond to Plaintiff, David W. Hall's ("Plaintiff') Preliminary
Objections and aver as follows:
1. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
2. Admitted.
3. Admitted.
4. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
5. Admitted in part, denied in part. It is admitted that Plaintifftendered to Clawser
Two Thousand and 00/100 ($2,000.00) Dollars as earnest money deposit. All other averments
contained in this paragraph are specifically denied.
6. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
7. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
8. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
9. Admitted in part, denied in part. It is admitted that the Two Thousand and 00/100
($2,000.00) Dollars that Plaintifftendered to Clawser have not be returned to Defendant. All
other averments contained in this paragraph are specifically denied.
10. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
11. Admitted in part, denied in part. It is admitted that Clawser and Hall have not
entered into any agreements prior to or subsequent to March 27, 2001. All other averments
contained in this paragraph are specifically denied.
WHEREFORE, Defendant, Ernest A. Clawser, III demands this Honorable Court enter
judgment in his favor and against Plaintiff, David W. Hail with prejudice, together with costs,
attorney's fees, and such other relief as the Court may deem just and proper.
NEW MATTER IN THE FORM
OF AFFIRMATIVE DEFENSES
12. Clawser hereby incorporates by reference the answers to Paragraph 1 through 11
as though fully set forth herein.
13. Clawser and Plaintiff entered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg, Cumberland
County, Pennsylvania (referred to hereinafter as the "Property"). A true and correct copy of the
2
Agreement is attached hereto as Exhibit "A."
14. Pursuant to the agreement, Plaintiffpaid two thousand and 00/100 ($2,000.00)
dollars earnest money to Clawser.
15. The aforementioned earnest money constituted consideration provided by Plaintiff
to Clawser in exchange for Clawser holding the Property for a limited and definite period of time
for the benefit of Plaintiff
16. Pursuant to the Agreement, settlement was to occur or Plaintiff and Clawser were
to enter into an agreement of sale on or before April 25,2001 or the earnest monies were forfeit.
17. Plaintiff was unable to close on the Property on or before April 25, 2001.
18. Plaintiff.was not even able to provide a written letter of commitment from a bank
or other financial institution on or before April 25, 2001.
19. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
20. Plaintiff.failed to satisfy his obligations pursuant to the Agreement and as set forth
above within the agreed upon thirty (30) day period.
FIRST AFFIRMATIVE DEFENSE
21. Clawser hereby incorporates by reference the averments in Paragraph 1 through 20
as though fully set forth herein.
22. Plaintiff forfeited his earnest money by failing to satisfy his obligations pursuant to
the Agreement and as set forth above.
23. Plaintifflost his right to purchase the Property as a result of his failure to satisfy his
obligations pursuant to the Agreement.
24. Plaintiff's claim is barred by failure to state a claim upon which relief can be
granted.
SECOND AFFIRMATIVE DEFENSE
25. Clawser hereby incorporates by reference the averments in Paragraph 1 through 24
as though fully set forth herein.
Plaintiff failed to satisfy his obligations pursuant to the Agreement and as set forth
26.
above.
27. Plaintiff's claim is barred by failure of consideration.
TttlRD AFFIRMATIVE DEFENSE
28. Clawser hereby incorporates by reference the averments in Paragraph 1 through 27
as though fully set forth herein.
The Agreement constituted an option to enter into an agreement for the sale of real
29.
property.
30.
31.
Agreements for the sale of real property must be in writing.
Plaintiff's claim is barred by the statute of frauds.
FOURTH AFFIRMATIVE DEFENSE
32. Clawser hereby incorporates by reference the averments in Paragraph 1 through 31
as though fully set forth herein.
33. As a result of Plaintiff's failure to satisfy his obligations pursuant to the
Agreement and as set forth above, Clawser is entitled not to sell or to enter in an agreement to sell
4
the Property to Plaintiff.
34. Plaintiff's claim is barred by justification.
FIFTH AFFIRMATIVE DEFENSE
35. Clawser hereby incorporates by reference the averments in Paragraph 1 through 34
as though fully set forth herein.
36. Plaintiff failed to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
37. Plaintiff's claim is barred by laches.
SIXTH AFFIRMATIVE DEFENSE
38. Clawser hereby incorporates by reference the averments in Paragraph 1 through 37
as though fully set forth herein.
39. Plaintiff failed to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
40. Plaintiff' s claim is barred by the doctrine waiver and/or estoppel.
COUNTERCLAIM
Defendant, Ernest A. Clawser, III, by way of counterclaim against Plaintiff, hereby avers:
1. Clawser and Plaintiff entered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg, Cumberland
County, Pennsylvania (referred to hereinafter as the "Property"). A true and correct copy of the
Agreement is attached hereto as Exhibit "A."
2. Pursuant to the agreement, Plaintiffpaid two thousand and 00/100 ($2,000.00)
dollars earnest money to Clawser.
3. The aforementioned earnest money constituted consideration provided by Plaintiff
to Clawser for Clawser holding the Property for a definite limited period of time for the benefit of
Plaintiff.
4. Pursuant to the Agreement, settlement was to occur or Plaintiff and Clawser were
to enter into an agreement of sale on or before April 25, 2001 or the earnest monies were forfeit.
5. Plaintiffwas unable to close on the Property on or before April 25, 2001.
6. Plaintiffwas not even able to provide a written letter of commitment from a bank
or other financial institution on or before April 25, 2001.
7. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
8. Plaintiff failed to satisfy his obligations pursuant to the agreement and as set forth
above within the agreed upon thirty (30) day period.
9. Plaintiff's suit is brought without legal or factual grounds and serves the sole
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiff to the terms
of their written Agreement.
10. Plaintiff instituted the instant proceedings fraudulently and/or dishonestly for the
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiff to the terms
of their written Agreement.
11. Plaintiff instituted the instant proceedings at random or convenient selection or
choice, rather than based upon reason or nature.
12. Plaintiff's commencement of this matter constitutes conduct that is arbitrary,
vexatious and/or in bad faith.
WHEREFORE, Defendant, Ernest A. Clawser, III demands judgment against Plaintiff,
together with costs, attorney's fees, and such other relief as the court deems just and proper.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
~i. ibert N.~eterli-n ~ -, s~ui~~ ~'~,;*" I
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DATE: JANUARY 8, 2002
7
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a tree and correct copy of the foregoing
Amended Answer, New Matter and Counterclaim of the Defendant, has been served upon the
following counsel of record by first class mail, postage prepaid, addressed as follows:
Lindsay G. Maclay, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER &HATCH, P.C.
DATE: JANUARY 8, 2002
Albert N. ~eter|in', E~q~ire_'~v' v
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, m,
Defendant
CIVIL ACTION - EQUITY
No. 01-6062
NOTICE TO PLEAD
TO: ERNEST A. CLAWSER, III, and his attorney, ALBERT N. PETERLIN, ESQUIRE
You are hereby notified to plead to the attached Preliminary Objections within twenty
(20) days from service hereof or a Default Judgment may be entered against you.
Date: February 5, 2002
HANFT & KNIGHT, P.C.
Attorney I.D. No. 57976
Lindsay Gingrich Maclay, Esquire
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attomeys for Plaintiff, David W. Hall
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, m,
Defendant
CIVIL ACTION - EQUITY
No. 01-6062
PRELIMINARY OBJECTIONS OF PLAINTIFF, DAVID W. HALL, TO
DEFENDANT'S NEW MATTER AND COUNTERCLAIM (SECOND SET)
AND NOW, this 5th day of February, 2002, comes the Plaintiff, David W. Hall
(hereinafter "Plaimiff Hall"), by and through his attorneys, Hanft & Knight, P.C., and files the
following Preliminary Objections to Defendant's New Matter and Counterclaim, and in support
hereof, avers as follows:
PRELIMINARY OBJECTION FOR FAILURE OF A PLEADING TO CONFORM TO
RULE OF COURT
1. On or about January 9, 2002, Defendant, Ernest A. Clawser, III, filed an Amended
Answer, New Matter and Counterclaim. A copy of Defendant Clawser's Amended Answer, New
Matter and Counterclaim is attached hereto as Exhibit "A."
2. Pursuant to Pennsylvania Rule of Civil Procedure 1024, "[e]very pleading
containing an averment of fact not appearing of record in the action or containing a denial of fact
shall state that the averment or denial is tree upon the signer's personal knowledge or
information and belief and shall be verified" (Emphasis Added).
3. Defendant Clawser failed to file a Verification with his Amended Answer, New
Matter and Counterclaim.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and dismiss Defendant Clawser's Amended Answer, New
Matter and Counterclaim for failure to comply with Pennsylvania Rule of Civil Procedure 1024.
pRELIMINARY OBJECTION FOR FAILURE OF A PLEADING TO CONFORM TO
RULE OF COURT
4. On or about January 11, 2002, Defendant Clawser served upon Plaintiff Hall's
counsel, a Notice to Plead; however, this Notice was never filed with the Cumberland County
Prothonotary's Office. A copy of the Notice to Plead which was served upon Plaintiff's counsel
is attached hereto as Exhibit "B."
5. Pursuant to Pennsylvania Rule of Civil Procedure 1026,"... every pleading
subsequent to the Complaint shall be filed within twenty days after service of the preceding
pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend
or is endorsed with a notice to plead" (Emphasis Added).
6. Defendant Clawser failed to file a Notice to Plead with his Amended Answer,
New Matter and Counterclaim, and instead, simply served a Notice to Plead on Plaintiff's
counsel.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests this Honorable Court grant
his Preliminary Objections and dismiss Defendant Clawser's Amended Answer, New Matter and
Counterclaim with prejudice for failure to comply with Pennsylvania Rule of Civil Procedure
1026.
PRELIMINARY OBJECTION FOR FAILURE OF A PLEADING TO CONFORM TO
RULE OF COURT
7. Pursuant to Pennsylvania Rule of Civil Procedure 1017,"... the pleadings in an
action are limited to a complaint, an answer thereto, a reply if the answer contains a new matter
or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a
preliminary objection, and an answer thereto" (Emphasis Added).
8. Pursuant to Pennsylvania Rule of Civil Procedure 1022, "[e]very pleading shall be
divided into paragraphs numbered consecutively" (Emphasis Added).
9. Defendant Clawser numbered his Amended Answer and New Matter as
Paragraphs 1 through 40 and then began his Counterclaim as Paragraph 1. A copy of Defendant
Clawser's Amended Answer, New Matter and Countemlaim is attached hereto as Exhibit "A."
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and dismiss Defendant Clawser's Amended Answer, New
Matter and Countemlaim for failure to comply with Pennsylvania Rule of Civil Procedure 1022.
pItF, I,IMINARY OBJECTION FOR FAILURE OF A PLEADING TO CONFORM TO
RULE OF COURT
10. Pursuant to Pennsylvania Rule of Civil Procedure 1019(i), "[w]hen any claim or
defense is based upon a writing, the pleader shall attach a copy of the writing..."
11. Defendant Clawser failed to attach to his Amended Answer, New Matter and
Counterclaim, a copy of the "Agreement" he references in Paragraph 13 of his New Matter and
Paragraph 1 of his Counterclaim. A copy of Defendant Clawser's Amended Answer, New
Matter and Counterclaim is attached hereto as Exhibit "A."
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and dismiss Defendant Clawser's Amended Answer, New
Matter and Counterclaim for failure to comply with Pennsylvania Rule of Civil Procedure
1019(i).
Respectfully Submitted,
HANFT & KNIGHT, P.C.
~Ag~cha~f i. I-~n~,'l~Sq~re- /
Attorney I.D. No. 57976
Lindsay Gingrich Maclay
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, this 5th day of February, 2002, I, Lindsay Gingrich Maclay, Esquire, hereby
certify that I have this day served the following person with a copy of the foregoing document, by
first class, United States Mail, postage pre-paid, addressed as follows:
Albert N. Peterlin, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Road, Suite 100
Lemoyne, Pennsylvania 17043
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Exhibit A
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
¥.
ERNEST A. CLAWSER, IH,
Defendant.
: CIVIL ACTION - EQUITY
· ' No.: 01-6062 -~
:
AMENDED ANSWER, NEW MATTER AND
COUNTERCLAIM OF THE DEFENDANT
The Defendant, Ernest A. Clawser, III CClawser"), by and through his attorneys, Gates,
Halbruner & Hatch, P.C., respond to Plaintiff, David W. Hall's ("Plaintiff") Preliminary
Objections and aver as follows:
1. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
2. Admitted.
3. Admitted.
4. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
5. Admitted in part, denied in part. It is admitted that Plaintifftendered to Clawser
Two Thousand and 00/100 ($2,000.00) Dollars as earnest money deposit. All other averments
contained in this paragraph are specifically denied.
6. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
7. Denied. The averments contained in tiffs paragraph refer to a writing, the terms of
which speak for themselves.
8. Denied. Clawser is without sufficient information to form a beliefas to the truth of
the averments contained in this paragraph.
9. Admitted in part, denied in part. It is admitted that the Two Thousand and 00/100
($2,000.00) Dollars that Plaintifftendered to Clawser have no[ be returned to Defendant. All
other averments contained in this paragraph are specifically denied.
10. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
11. Admitted in parr, denied in part. It is admitted that Clawser and Hall have not
entered into any agreements prior to or subsequent to March 27, 2001. All other averments
contained in this paragraph are specifically denied.
WHEREFORE, Defendant, Ernest A. Clawser, III demands this Honorable Court enter
judgment in his favor and against Plaintiff, David W. Hall with prejudice, together with costs,
attorney's fees, and such other relief as the Court may deem just and proper.
NEW MATTER IN THE FORM
OF AFFIRMATIVE DEFENSES
12. Clawser hereby incorporates by reference the answers to Paragraph 1 through 11
as though fully set forth herein.
13. Clawser and Plaintiffentered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg, Cumberland
County, Pennsylvania (referred to hereinafter as the "Property"). A true and correct copy of the
2
Agreement is attached hereto as Exhibit "A.'
14. Pursuant to the agreement, Plaintiffpaid two thousand.and 00/100 ($2,000.00)
dollars earnest money to Clawser.
15. The aforementioned earnest money constituted consideration provided by Plaintiff
to Clawser in exchange for Clawser holding the Property for a limited and definite period of time
for the benefit of Plaintiff..
16. Pursuant to the Agreement, settlement was to occur or Plaintiff and Clawser were
to enter into an agreement of sale on or before April :25, 2001 or the earnest monies were forfeit.
17. Plaintiffwas unable to close on the Property on or before April :25, 2001.
18. Plaintiffwas not even able to provide a written letter of commitment from a bank
or other financial institution on or before April 25, 2001.
19. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
20. Plaintiff failed to satisfy his obligations pursuant to the Agreement and as set forth
above within the agreed upon thirty (:30) day period.
FIRST AFFIRMATIVE DEFENSE
21. Clawser hereby incorporates by reference the averments in Paragraph 1 through 20
as though fully set forth herein.
22. Plaintiff forfeited his earnest money by failing to satisfy his obligations pursuant to
the Agreement and as set forth above.
23. Plaintifflost his right to purchase the Property as a result of his failure to satisfy his
obligations pursuant to the Agreement.
24.
granted.
25.
Plaintiff's claim is barred by failure to state a claim upon which relief can be
SECOND AFFIRMATIVE DEFENSE
Clawser hereby incorporates by reference the averments in Paragraph 1 through 24
as though fully set forth herein.
26. Plaintiff failed to satisfy his obligations pursuant to the Agreement and as set forth
above.
27. PlaintiWs claim is barred by failure of consideration.
THIRD AFFIRMATIVE DEFENSE
28. Clawser hereby incorporates by reference the averments in Paragraph 1 through 27
as though fully set forth herein.
29. The Agreement constituted an option to enter into an agreement for the sale of real
property.
30.
31.
Agreements for the sale of real property must be in writing.
Plaintiff's claim is barred by the statute of frauds.
FOURTH AFFIRMATIVE DEFENSE
32. Clawser hereby incorporates by reference the averments in Paragraph I through 31
as though fully set forth herein.
33. As a result of Plaintiff's failure to satisfy his obligations pursuant to the
Agreement and .as set forth above, Clawser is entitled not to sell or to enter in an agreement to sell
4
the Property to Plaintiff.
34. Plaintiff's claim is barred by justification.
FIFTH AFFIRMATIVE DEFENSE
35. Clawser hereby incorporates by reference the averments in Paragraph 1 through 34
as though fully set forth herein.
36. Plaintiff failed to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
37. Plaintiff's claim is barred by laches.
SIXTH AFFIRMATIVE DEFENSE
38. Clawser hereby incorporates by reference the averments in Paragraph 1 through 37
as though fully set forth herein.
39. Plaintiff failed to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
40. PlaintiWs claim is barred by the doctrine waiver and/or estoppel.
COUNTERCLAIM
Defendant, Ernest A. Clawser, III, by way of counterclaim against Plaintiff, hereby avers:
1. Clawser and Plaintiffentered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg, Cumberland
County, Pennsylvania (referred to hereinat~er as the "Property"). A true and correct copy of the
Agreement is attached hereto as Exhibit "A."
5
2. Pursuant to the agreement, Plaintiffpaid two thousand and 00/100 ($2,000.00)
dollars earnest money to Clawser.
3. The aforementioned earnest money constituted consideration provided by Plaintiff
to Clawser for Clawser holding the Property for a definite limited period of time for the benefit of
Plaintiff
4. Pursuant to the Agreement, settlement was to occur or Plaintiff and Clawser were
to enter into an agreement ofsaie on or before April 25, 2001 or the earnest monies were forfeit.
5. Plaintiff was unable to close on the Property on or before April 25, 2001.
6. Plaintiffwas not even able to provide a written letter of commitment from a bank
or other financial institution on or before April 25, 2001.
7. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
8. Plaintiff failed to satisfy his obligations pursuant to the agreement and as set forth
above within the agreed upon thirty (30) day period.
9. Plaintiff's suit is brought without legal or factual grounds and serves the sole
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiff to the terms
of their written Agreement.
10. Plaintiff` instituted the instant proceedings fraudulently and/or dishonestly for the
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiff to the terms
of their written Agreement.
11. Plaintiff`instituted the instant proceedings at random or convenient selection or
6
choice, rather than based upon reason or nature.
12. Plaintiff's commencement of this matter constitutes conduct that is arbitrary,
vexatious and/or in bad faith.
WHEREFORE, Defendant, Ernest A. Clawser, Ill demands jud~nent against Plaintiff,
together with costs, attorney's fees, and such other relie£as the court deems just and proper.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Aibert N.~eterhn, l~sqmre ~' J
Attorney ID No. 84180
1013 Mumma Road, Suite I00
Lemoyne, PA 17043
(717) 731-9600
DATE: JANUARY 8, 2002
7
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Amended Answer, New Matter and Counterclaim of the Defendant, has been served upon the
following counsel of record by first class mail, postage prepaid, addressed as follows:
Lindsay G. Maclay, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
DATE: JANUARY 8, 2002
Albert N. Peteriin~ E~q~ire'~/~ ' ¥
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
Exhibit B
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
:
Plaintiff, :
:
;
ERNEST A. CLAWSER, IH, :
;
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
NOTICE TO PLEAD
TO: David W. Hall
You are hereby notified to file a written response to the enclosed Amended Answer, New
Matter and Counterclaim of the Defendant within twenty (20) days from service hereof or a
judgment may be entered against you.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Albert N.'Peterlin, EsqUire ~ ' !
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DATE: January 11, 2002
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
;
Plaintiff, :
;
ERNEST A. CLAWSER, IH, :
:
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
NOTICE TO PLEAD
TO: David W. Hall
You are hereby notified to file a written response to the enclosed Second Amended
Answer, New Matter and Counterclaim of the Defendant within twenty (20) days from service
hereof or a judgment may be entered against you.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
VAib'ert N. P~terli~n,~E'~qu~r~ ' '
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, IH,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
No.: 01-6062
:
..
:
..
Defendant. :
SECOND AMENDED ANSWER~ NEW MATTER
AND COUNTERCLAIM OF THE DEFENDANT
The Defendant, Ernest A. Clawser, III CClawser"), by and through his attorneys, Gates,
Haibruner & Hatch, PC., respond to the Preliminary Objections of Plaintiff, David W. Hail, to
Defendant's New Matter and Counterclaim (Second Set) and aver as follows:
1. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
2. Admitted.
3. Admitted.
4. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
5. Admitted in part, denied in part. It is admitted that Plaintifftendered to Clawser
Two Thousand and 00/100 ($2,000.00) Dollars as earnest money deposit~ All other averments
contained in this paragraph are specifically denied.
6. Denied~ The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
7. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
8. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
9. Admitted in part, denied in part. It is admitted that the Two Thousand and 00/100
($2,000.00) Dollars that Plaintiff`tendered to Clawser have not be returned to Defendant. All
other averments contained in this paragraph are specifically denied.
10. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
11. Admitted in part, denied in part. It is admitted that Clawser and Hall have not
entered into any agreements prior to or subsequent to March 27, 2001. All other averments
contained in this paragraph are specifically denied.
WHEREFORE, Defendant, Ernest A. Clawser, III demands this Honorable Court enter
judgment in his favor and against Plaintiff, David W. Hall with prejudice, together with costs,
attorney's fees, and such other relief as the Court may deem just and proper.
NEW MATTER IN THE FORM
OF AFFIRMATIVE DEFENSES
12. Clawser hereby incorporates by reference the answers to Paragraph 1 through 11
as though fully set forth herein.
13. Clawser and Plaintiff` entered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanlcsburg, Cumberland
County, Pennsylvania (referred to hereinafter as the "Property"). A true and correct copy of the
2
Agreement is attached hereto as Exhibit "A."
14. Pursuant to the agreement, Plaintiff paid two thousand and 00/100 ($2,000.00)
dollars earnest money to Clawser.
15. The aforementioned earnest money constituted consideration provided by Plaintiff.
to Clawser in exchange for Clawser holding the Property for a limited and definite period of time
for the benefit of Plaintiff
16. Pursuant to the Agreement, settlement was to occur or Plaintiff. and Clawser were
to enter into an agreement of sale on or before April 25, 2001 or the earnest monies were forfeit.
17. Plalntiffwas unable to close on the Property on or before April 25, 2001.
18. Plaintiff was not even able to provide a written letter of commitment from a bank
or other financial institution on or before April 25, 2001.
19. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
20. Plaintiff failed to satisfy his obligations pursuant to the Agreement and as set forth
above within the agreed upon thirty (30) day period.
FIRST AFFIRMATIVE DEFENSE
21. Clawser hereby incorporates by reference the averments in Paragraph 1 through 20
as though fully set forth herein.
22. Plaintiff forfeited his earnest money by failing to satisfy his obligations pursuant to
the Agreement and as set forth above.
23. Plalntifflost his right to purchase the Property as a result of his failure to satisfy his
obligations pursuant to the Agreement.
24. Plaintiff's claim is barred by failure to state a claim upon which relief can be
granted.
SECOND AFFIRMATIVE DEFENSE
25. Clawser hereby incorporates by reference the averments in Paragraph 1 through 24
as though fully set forth herein.
26. Plaintiff failed to satisfy his obligations pursuant to the Agreement and as set forth
above.
27. Plaintiff's claim is barred by failure of consideration.
THIRD AFFIRMATIVE DEFENSE
28. Clawser hereby incorporates by reference the averments in Paragraph 1 through 27
as though fully set forth herein.
29. The Agreement constituted an option to enter into an agreement for the sale of real
property.
30. Agreements for the sale of real property must be in writing.
31. Plaintiff' s claim is barred by the statute of frauds.
FOURTIt AFFIRMATIVE DEFENSE
32. Clawser hereby incorporates by reference the averments in Paragraph 1 through 31
as though fully set forth herein.
33. As a result of Plaintiff's failure to satisfy his obligations pursuant to the
Agreement and as set forth above, Clawser is entitled not to sell or to enter in an agreement to sell
the Property to Plaintiff
34. Plaintiff's claim is barred by justification.
FIFTH AFFIRMATIVE DEFENSE
35. Clawser hereby incorporates by reference the averments in Paragraph 1 through 34
as though fully set forth herein.
36. Plaintifffailed to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
37. Plaintiff's claim is barred by laches.
SIXTH AFFIRMATIVE DEFENSE
38. Clawser hereby incorporates by reference the averments in Paragraph 1 through 37
as though fully set forth herein.
39. Plaintifffailed to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
40. Plaintiff's claim is barred by the doctrine waiver and/or estoppel.
COUNTERCLAI~I
Defendant, Ernest A. Clawser, III, by way of counterclaim against Plaintiff, hereby avers:
41. Clawser and Plaintiff'entered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg, Cumberland
County, Pennsylvania (referred to hereinafter as the "Property"). A true and correct copy of the
Agreement is attached hereto as Exhibit "A."
42. Pursuant to the agreement, Plaintiffpaid two thousand and 00/100 ($2,000.00)
dollars earnest money to Clawser.
43. The aforementioned earnest money constituted consideration provided by Plaintiff
to Clawser for Clawser holding the Property for a definite limited period of time for the benefit of
Plaintiff.
44. Pursuant to the Agreement, settlement was to occur or Plaintiff and Clawser were
to enter into an agreement of sale on or before April 25, 2001 or the earnest monies were forfeit.
45. Plaintiff was unable to close on the Property on or before April 25, 2001.
46. Plaintiff was not even able to provide a written letter of commitment from a bank
or other financial institution on or before April 25, 2001.
47. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
48. Plaintiff failed to satisfy his obligations pursuant to the agreement and as set forth
above within the agreed upon thirty (30) day period.
49. Plaintiff's suit is brought without legal or factual grounds and serves the sole
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiffto the terms
of their written Agreement.
50. Plaintiff instituted the instant proceedings fraudulently and/or dishonestly for the
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiffto the terms
of their written Agreement.
51. Plaintiff instituted the instant proceedings at random or convenient selection or
6
choice, rather than based upon reason or nature.
52. Plaintiffs commencement of this matter constitutes conduct that is arbitrary,
vexatious and/or in bad faith.
WHEREFORE, Defendant, Ernest A. Clawser, III demands judgment against Plaintiff,
together with costs, attorney's fees, and such other relief as the court deems just and proper.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Albert N. Pet~lin~-l~,s~re~ w~ - ~1
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
VERIFICATION
I, Ernest A. Clawser, III, state that I have reviewed the foregoing Second Amended
Answer, New Matter and Counterclaim of the Defendant and verify that it is true and correct to
the best of my knowledge, information and belie£
I further verify that these statements made by me are subject to the penalties of 18
Pa.C.S.A. § 4904 relating to unswom falsification to authorities.
DATED:
Ernest A. Clawser, III
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a tree and correct copy of the foregoing
Second Amended Answer, New Matter and Counterclaim of the Defendant, has been served upon
the following counsel of record by first class mail, postage prepaid, addressed as follows:
Lindsay G. Maclay, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
DATE:
Albert N. Peterlin, Esquire
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
EXHIBIT
Deposit check # 1447 lbr $ 2000.00 ~ownrds th~ purchu~ price o£$ 37,000.00 foz lot # 4
On Old Willow Mill Rood will bo r~fundablo for n mn-~.mvan, of 30. days beginning on
March 27, 2001.
I~vid W. Hs21
Ernest A. C~.wser 'lf~.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, III,
Defendant
TO:
CIVIL ACTION - EQUITY
No. 01-6062
NOTICE TO PLEAD
ERNEST A. CLAWSER, m, and his attorney, ALBERT N. PETERL1N, ESQUIRE
You are hereby notified to plead to the attached Preliminary Objections within twenty
(20) days from service hereof or a Default Judgment may be entered against you.
Date: March 1, 2002
HANFT & KNIGHT, P.C.
I~ichael J. IOn~/,-Esq~re
Attorney I.D. No. 57976
Lindsay Gingfich Maclay, Esquire
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiff, David W. Hall
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, 1II,
Defendant
CWIL ACTION - EQUITY
No. 01-6062
PRELIMINARY OBJECTIONS OF PLAINTIFF, DAVID W. HALL, TO
DEFENDANT'S NEW MATTER AND COUNTERCLAIM (THIRD SET)
AND NOW, this 1st day of March, 2002, comes the Plaintiff, David W. Hall (hereinafter
"Plaintiff Hall"), by and through his attorneys, Hanft & Knight, P.C., and files the following
Preliminary Objections to Defendant's New Matter and Counterclaim, and in support hereof,
avers as follows:
PRELIMINARY OBJECTION FOR INCLUSION OF SCANDALOUS OR
IMPERTINENT MATTER
1. On or about February 8, 2002, Defendant, Ernest A. Clawser, ffI, filed a Second
Amended Answer, New Matter and Countemlaim. A copy of Defendant's Second Amended
Answer, New Matter and Countemlaim is attached hereto as Exhibit "A."
2. Paragraph 49 of Defendant's Counterclaim alleges that "Plaintiff's suit is brought
without legal or factual grounds and serves the sole purpose of annoying and harassing Clawser
in retaliation for Clawser holding Plaintiff to the terms of their written agreement."
3. Defendant offers no averments that in any way support the claim that Plaintiff's
"sole purpose" for bringing suit is to "annoy and harass" Defendant Clawser.
4. Defendant's Paragraph 49 of his Counterclaim is wholly without proof of the
allegations raised, contradicted by the pleadings, and therefore, was only included in Defendant's
Counterclaim to color Plaintiff in a bad light in the eyes of the Court.
WHEREFORE, Plaintiff, David W. Hall, requests this Honorable Court grant his
Preliminary Objection and strike Paragraph 49 of Defendant Clawser's Counterclaim.
PRELIMINARY OBJECTION FOR INCLUSION OF SCANDALOUS OR
IMPERTINENT MATTER
5. Paragraphs 1 through 4 are incorporated by reference as if fully set forth herein.
6. Paragraph 50 of Defendant's Counterclaim alleges that "Plaintiff instituted the
instant proceedings fraudulently and/or dishonestly for the purpose of annoying and harassing
Clawser in retaliation for Clawser holding Plaintiff to the terms of their written agreement."
7. Defendant Clawser offers no averments that in any way support the claim and
allegation that Plaintiff Hall fraudulently or dishonestly instituted the instant proceedings.
8. Defendant Clawser offers no averments that in any way support the claim that
Plaintiff Hall's purpose for bringing suit was to "annoy or harass" Defendant Clawser.
9. Defendant's Paragraph 50 of his Counterclaim is wholly without proof of the
allegations raised and was therefore, only included in Defendant's Counterclaim to color Plaintiff
in a bad light in the eyes of the Court.
WHEREFORE, Plaintiff, David W. Hall, requests this Honorable Court grant his
Preliminary Objection and strike Paragraph 50 of Defendant Clawser's Counterclaim.
PRELIMINARY OBJECTION FOR INSUFFICIENT SPECIFICITY IN A PLEADING
10. Paragraphs 1 through 9 are incorporated by reference as if fully set forth herein.
11. Paragraph 50 of Defendant's Counterclaim alleges that "Plaintiff instituted the
instant proceedings fraudulently and/or dishonestly for the purpose of annoying and harassing
Clawser in retaliation for Clawser holding Plaintiff to the terms of their written agreement."
12. Defendant Clawser fails to enumerate any allegations in support of his allegation
or claim that Plaintiff Hall instituted the proceedings fraudulently or dishonestly.
13. Defendant Clawser fails to enumerate with any specificity at all, what Plaintiff
Hall allegedly lied about.
14. Defendant Clawser fails to enumerate with any specificity at all, what aspect of
PlaintiffHall's Complaint is or was allegedly fraudulent.
15. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file preliminary
objections to any pleading on the grounds of insufficient specificity of the pleading.
16. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose
of which is to require the pleader to disclose the material facts sufficient to enable the adverse
party to prepare his case.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and strike Paragraph 50 of Defendant Clawser's Connterclaim
for failure to comply with Pennsylvania Rule of Civil Procedure 1019(a).
PRELIMINARY OBJECTION FOR INSUFFICIENT SPECIFICITY IN A PLEADING
17. Paragraphs 1 through 16 are incorporated by reference as if fully set forth herein.
18. Paragraph 51 of Defendant Hall's Counterclaim alleges that "Plaintiffinstituted
the instant proceedings at random or convenient selection or choice, rather than based upon
reason or nature."
19. Plaintiff Hall is unable to ascertain the meaning of Defendant's Paragraph 51.
20. Defendant Clawser offers no allegations, factual basis, or explanation as to the
meaning of "Plaintiff instituted the instant proceedings at random or convenient selection or
choice, rather than based upon reason or nature."
21. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file preliminary
objections to any pleading on the grounds of insufficient specificity of the pleading.
22. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose
of which is to require the pleader to disclose the material facts sufficient to enable the adverse
party to prepare his case.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and strike Paragraph 51 of Defendant Clawser's Counterclaim
for failure to comply with Pennsylvania Rule of Civil Procedure 1019(a).
PRELIMINARY OBJECTION FOR INCLUSION OF SCANDALOUS OR
IMPERTINENT MATTER
23. Paragraphs 1 through 22 are incorporated by reference as if fully set forth herein.
24. Paragraph 51 of Defendant Hall's Counterclaim alleges that "Plaintiff instituted
the instant proceedings at random or convenient selection or choice, rather than based upon
reason or nature."
25. Plaintiff Hall is unable to ascertain the meaning of Defendant's Paragraph 51.
26. Paragraph 51 of Defendant's Counterclaim is wholly without proof of the
allegations raised and was only included in Defendant's Counterclaim to color Plaintiff in a bad
light in the eyes of the Court.
WHEREFORE, Plaintiff, David W. Hall, requests this Honorable Court grant his
Preliminary Objection and strike Paragraph 51 of Defendant Clawser's Countemlaim.
PRELIMINARY OBJECTION FOR INSUFFICIENT SPECIFICITY IN A PLEADING
27. Paragraphs 1 through 26 are incorporated by reference as if fully set forth herein.
28. In Paragraph 52 of his Counterclaim, Defendant Clawser claims that "Plaintiff's
commencement of this matter constitutes conduct that is arbitrary, vexatious and/or in bad faith;"
however, Defendant Clawser fails to enumerate any allegations or with any specificity, how
Plaintiff Hall's conduct constitutes that which is "arbitrary, vexatious and/or in bad faith."
29. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file preliminary
objections to any pleading on the grounds of insufficient specificity of the pleading.
30. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose
of which is to require the pleader to disclose the material facts sufficient to enable the adverse
party to prepare his case.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
grant his Preliminary Objections and strike Paragraph 52 of Defendant Clawser's New Matters
for failure to comply with Pennsylvania Rule of Civil Procedure 1019(a).
PRELIMINARY OBJECTION FOR INCLUSION OF SCANDALOUS OR
IMPERTINENT MATTER
31. Paragraphs 1 through 30 are incorporated by reference as if fully set forth herein.
32. In Paragraph 52 of his Counterclaim, Defendant Clawser claims that "Plaintiff's
commencement of this matter constitutes conduct that is arbitrary, vexatious and/or in bad faith."
34. Paragraph 52 of Defendant's Counterclaim is wholly without proof of the
allegations raised and was only included in Defendant's Counterclaim to color Plaintiff in a bad
light in the eyes of the Court.
WHEREFORE, Plaintiff, David W. Hall, requests this Honorable Court grant his
Preliminary Objection and strike Paragraph 52 of Defendant Clawser's Counterclaim.
Respectfully Submitted,
HANFT & KNIGHT, P.C.
Hal~t~, Esql~re - _ ~
Attorney I.D. No. 57976
Lindsay Gingrich Maclay
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, this 1st day of March, 2002, I, Lindsay Gingrich Maclay, Esquire, hereby
certify that I have this day served the following person with a copy of the foregoing document, by
first class, United States Mail, postage pre-paid, addressed as follows:
Albert N. Peterlin, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Road, Suite 100
Lemoyne, Pennsylvania 17043
HANFT & KNIGHT, P.C.
i~dsay Gin~ch M~lay, Esquire
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013-9142
(717) 249-5373
Exhibit A
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
;
Plaintiff, :
;
V.
:
ERNEST A. CLAWSER, IH, :
:
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
NOTICE TO PLEAD
TO: David W. Hall
You are hereby notified to file a written response to the enclosed Second Amended
Answer, New Matter and Counterclaim of the Defendant within twenty (20) days from se~ice
hereof or a judgment may be entered against you.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
DATE:
Albert N. Peterlin,-E]quYr~
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, HI,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
No.: 01-6062
..
:
_.
SECOND AMENDED ANSWER, NEW MATTER
AND COUNTERCLAIM OF THE DEFENDANT
The Defendant, Ernest A. Clawser, III ("Clawser"), by and through his attorneys, Gates,
Halbruner & Hatch, P.C, respond to the Preliminary Objections of Plaintiff, David W. Hall, to
Defendant's New Matter and Counterclaim (Second Set) and aver as follows:
1. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
2. Admitted.
3. Admitted.
4. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
5. Admitted in part, denied in part. It is admitted that Plaintifftendered to Clawser
Two Thousand and 00/100 ($2,000.00) Dollars as earnest money deposit. All other averments
contained in this paragraph are specifically denied.
6. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
7. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
8. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
9. Admitted in part, denied in part. It is admitted that the Two Thousand and 00/100
($2,000.00) Dollars that Plaintiff.tendered to Clawser have not be returned to Defendant. All
other averments contained in .this paragraph are specifically denied.
10. Denied. The averments contained in this paragraph refer to a writing, the terms of
which speak for themselves.
11. Admitted in part, denied in part. It is admitted that Clawser and Hall have not
entered into any agreements prior to or subsequent to March 27, 2001. All other averments
contained in this paragraph are specifically denied.
WHEREFORE, Defendant, Ernest A. Clawser, III demands this Honorable Court enter
judgment in his favor and against Plaintiff, David W. Hall with prejudice, together with costs,
attorney's fees, and such other relief as the Court may deem just and proper.
NEW MATTER IN THE FORM
OF AFFIRMATIVE DEFENSES
12. Clawser hereby incorporates by reference the answers to Paragraph 1 through 11
as though fully set forth herein.
13. Clawser and Plaintiff.entered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg, Cumberland
County, Pennsylvania (referred to hereinafter as the "Property"). A true and correct copy of the
2
Agreement is attached hereto as Exhibit "A."
14. Pursuant to the agreement, Plaintiffpaid two thousand and 00/100 ($2,000.00)
dollars earnest money to Clawser.
15. The aforementioned earnest money constituted consideration provided by Plaintiff
to Clawser in exchange for Clawser holding the Property for a limited and definite period of time
for the benefit &Plaintiff
16. Pursuant to the Agreement, settlement was to occur or Plaintiff and Clawser were
to enter into an agreement &sale on or before April 25, 2001 or the earnest monies were forfeit.
17. Plaintiffwas unable to close on the Property on or before April 25, 2001.
18. Plaintiffwas not even able to provide a written letter &commitment from a bank
or other financial institution on or before April 25, 2001.
19. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
20. Plaintifffailed to satisfy his obligations pursuant to the Agreement and as set forth
above within the agreed upon thirty (30) day period.
FIRST AFFIRMATIVE DEFENSE
21. Clawser hereby incorporates by reference the averments in Paragraph 1 through 20
as though fully set forth herein.
22. Plaintiff forfeited his earnest money by failing to satisfy his obligations pursuant to
the Agreement and as set forth above.
23. Plaintifflost his right to purchase the Property as a result of his failure to satisfy his
24.
granted.
obligations pursuant to the Agreement.
Plaintiffs claim is barred by failure to state a claim upon which relief can be
SECOND AFFIRMATIVE DEFENSE
25. Clawser hereby incorporates by reference the averments in Paragraph I through 24
as though fully set forth herein.
Plaintifffailed to satisfy his obligations pursuant to the Agreement and as set forth
26.
above.
27.
Plaintiffs claim is barred by failure of consideration.
_THIRD AFFIR3IATIVE DEFENSE
28. Clawser hereby incorporates by reference the averments in Paragraph I through 27
as though fully set forth herein.
29. The Agreement constituted an option to enter into an agreement for the sale of real
property.
30.
31.
Agreements for the sale of real property must be in writing.
Plaintiffs claim is barred by the statute of frauds.
FOURTH AFFIRMATIVE DEFENSE
32. Clawser hereby incorporates by reference the averments in Paragraph I through 31
as though fully set forth herein.
33. As a result of Plaintiffs failure to satisfy his obligations pursuant to the
Agreement and as set forth above, Clawser is entitled not to sell or to enter in an agreement to sell
4
the Property to Plaintiff
34. Plaintiff's claim is barred byjustification.
FIFTH AFFIRMATIVE DEFENSE
35. CIawser hereby incorporates by reference the averments in Paragraph 1 through 34
as though fully set forth herein.
36. Plaintiff failed.to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
37. Plaintiff's claim is barred by laches.
.SIXTH AFFIRMATIVE DEFENSE
38. Clawser hereby incorporates by reference the averments in Paragraph 1 through 37
as though fully set forth herein.
39. Plaintiff failed to satisfy his obligations pursuant to the Agreement within the
agreed upon and definite time period.
40. Plaintiff's claim is barred by the doctrine waiver and/or estoppel.
COUNTERCLAIM
Defendant, Ernest A. Clawser, III, by way of counterclaim against Plaintiff, hereby avers:
41. Clawser and Plaintiff entered into either an agreement of sale or an option to enter
into an agreement of sale on March 27, 2001 ("Agreement") regarding certain real property
commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg, Cumberland
County, Pennsylvania (referred to hereinat~er as the "Property"). A true and correct copy of the
Agreement is attached hereto as Exhibit "A."
42. Pursuant to the agreement, Plaintiffpaid two thousand and 00/I00 ($2,000.00)
dollars earnest money to Clawser.
43. The aforementioned earnest money constituted consideration provided by Plaintiff
to Clawser for Clawser holding the Property for a definite limited period of time for the benefit of
Plaintiff
44. Pursuant to thg Agreement, settlement was to occur or Plaintiff.and Clawser were
to enter into an agreement of sale on or before April 25, 2001 or the earnest monies were forfeit.
45. Plaintiffwas unable to close on the Property on or before April 25, 2001.
46. Plaintiffwas not even able to provide a written letter of commitment from a bank
or other financial institution on or before April 25, 2001.
47. Plaintiff, in fact, was not able to obtain a letter of commitment from a bank or
other financial institution prior to July, 2001.
48. Plaintiff failed to satisfy his obligations pursuant to the agreement and as set forth
above within the agreed upon thirty (30) day period.
49. Plaintiff's suit is brought without legal or factual grounds and serves the sole
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiff.to the terms
of their written Agreement.
50. Plaintiff instituted the instant proceedings fraudulently and/or dishonestly for the
purpose of annoying and harassing Clawser in retaliation for Clawser holding Plaintiff to the terms
of their written Agreement.
51. Plaimiffinstituted the instant proceedings at random or convenient selection or
6
choice, rather than based upon reason or nature.
$2. Plaintiff's commencement of this matter constitutes conduct that is arbitrary,
'exatious and/or in bad faith.
WHEP, EFORE, Defendant, Ernest A. Clawser, III demands judgment against Plaintiff,
together with costs, attorney's fees, and such other relief as the court deems just and proper.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Albert N. Pet~lin~E~sq~re~ .-v'-' ~J
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
7
I, Ernest A. Clawser, III, state that I have reviewed the foregoing Second Amended
Answer, New Matter and Counterclaim of the Defendant and verify that it is true and correct to
the best of my knowledge, information and belief
I further verify that these statements made by me are subject to the penalties of 18
Pa.C.S.A. § 4904 relating to ~nsworn falsification to authorities.
DATED:
Ernest A. Clawser, III
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Second Amended Answer, New Matter and Counterclaim of the Defendant, has been served upon
the following counsel of record by first class mail, postage prepaid, addressed as follows:
· Lindsay G. Maclay, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
DATE:
Attorney ID No. 84180
101;3 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
Deposit ch~k # 1447 for $ 2000.00 towards th~ purchase price ors 37:,000.00 f°r lot # 4
On Old Willow lVfill Road will bo mfundabl~ for a maximumof30 days'beginning on
March 27, 2001.
David W. Hall
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff, :
ERNEST A. CLAWSER, III, :
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
Admitt~.
Admitted.
Denied. Clawser avers in Paragraphs 41 through 48 that Clawser and the Plaintiff
entered into a certain agreement that was clearly breached by the Plaintiff. Plaintiff is now improperly
retaliating against the Defendant as a result of Plaintiff's own default.
4. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
WHEREFORE, Defendant, Ernest A. Clawser, III.respectfully requests that this Court deny the
Plaintiff's Preliminary Objections as patently frivolous and enter an order in the form attached hereto.
SCANDALOUS OR IMPERTINENT MATTER
as though fully set forth hereto.
Clawser hereby incorporates by reference the answers to Paragraph 1 through 4
ANSWER TO PLAINTIFF'S THIRD SET
OF PRELIMINARY OBJECTIONS
The Defendant, Ernest A. Clawser, III ("Clawser"), by and through his attorneys, Gates,
Haibruner & Hatch, P.C., answer the Preliminary Objections of Plaintiff, David W. Hall, to Defendant's
New Matter and Counterclaim (Third Set) and aver as follows:
SCANDALOUS OR IMPERTINENT MATTER
6. Admitted.
7. Denied. Clawser avers in Paragraphs 41 through 48 that Clawser and the Plaintiff
entered into a certain agreement that was clearly breached by the Plaintiff. Plamtiffis now improperly
retaliating against the Defendant as a result of Plaintiff's own default.
8. Denied. Clawser avers in Paragraphs 41 through 48 that Clawser and the
Plaintiff entered into a certain agreement that was clearly breached by the Plaintiff. Plaintiff is now
improperly retaliating against the Defendant as a result of Plaintiff's own default.
9. Denied. The averments contained in this paragraph constitute conclusions of law
to winch no response is required.
WHEREFORE, Defendant, Ernest A. Clawser, III respectfully requests that this Court deny the
Plaintiff's Preliminary Objections as patently frivolous and enter an order in the form attached hereto.
INSUFFICIENT SPECIFICITY OF PLEADING
10. Clawser hereby incorporates by reference the answers to Paragraph 1 through 9
as though fully set fotth hereto.
11. Admitted.
12. Denied. Clawser avers in Paragraphs 41 through 48 that Clawser and the
Plaintiff entered into a certain agreement that was clearly breached by the Plaintiff. Plaintiff is now
improperly retaliating against the Defendant as a result of Plaintiff's own default.
13. Denied. Clawser avers in Paragraphs 41 through 48 that Clawser and the
Plaintiff entered into a certain agreement that was clearly breached by the Plaintiff. Plaintiff is now
improperly retaliating against the Defendant as a result of Plaintiff's own default.
14. Denied. Clawser avers in Paragraphs 41 through 48 that Clawser and the
Plaintiff entered into a certain agreement that was clearly breached by the Plaintiff. Plaintiff is now
improperly retaliating against the Defendant as a result of Plaimiff's own default.
2
15. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
16. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
WHEREFORE, Defendant, Ernest A. Clawser, III respectfully requests that this Court deny the
Plaintiff's Preliminary Objections as patently frivolous and enter an order in the form attached hereto.
INSUFFICIENT SPECIFICITY OF PLEADING
17. Clawser hereby incorporates by reference the answers to Paragraph 1 through 16
as though fully set forth herein.
18. Admitted.
19. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
20. Denied. Clawser avers in paragraphs 41 through 48 that Clawser and the
Plaintiff entered into a certain agreement that was clearly breached by the Plaintiff. Plaintiffis now
improperly retaliating against the Defendant as a result of Plaintiff's own default.
21. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
22. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
WHEREFORE, Defendant, Ernest A. Clawser, m respectfully requests that this Court deny the
Plaintiff's Pre 'hminary Objections as patently frivolous and enter an order in the form attached hereto.
SCANDALOUS OR IMPERTINENT MATTER
23. Clawser hereby incorporates by reference the answers to Paragraph 1 through 22
as though fully set forth herein.
3
24. Admitted.
25. Denied. Clawser is without sufficient information to form a belief as to the truth of
the averments contained in this paragraph.
26. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
WHEREFORE, Defendant, Ernest A. Clawser, III respectfully requests that this Court deny the
PlaintifFs Preliminary Objections as patently frivolous and enter an order in the form attached hereto.
INSUFFICIENT SPECIFICITY OF PLEADING
27. Clawser hereby incorporates by reference the answers to Paragraph 1 through 26
as though fully set forth herein.
28. Admitted in part, denied in part. It is admitted that Clawser alleges that Plaintiff's
commencement of this action constitutes conduct that is arbitraz7, vexatious and/or m bad faith. All other
averments contained in this paragraph are denied as improper conclusions of law to which no response is
required.
29. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
30. Denied. The averments contained in this paragraph constitute conclusions of law
to which no response is required.
WHEREFORE, Defendant, Ernest A. Clawser, III respectfully requests that this Court deny the
PlaintifFs Prel'mainary Objections as patently frivolous and enter an order in the form attached hereto.
SCANDALOUS OR IMPERTINENT MATTER
31. Clawser hereby incorporates by reference the answers to Paragraph 1 through 30
as though fully set forth herein.
32. Admitted.
4
33. Denied. Thc averments contained in this paragraph constitute conclusions of law
to which no response is required.
WHEREFORE, Defendant, Ernest A. Clawser, III r~spcctfully requests that this Court deny the
Plaintiff's Preliminary Objections as patently frivolous and enter an order in the form attached hereto.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DATE: March 5, 2002
5
CERTIFICATE OF SERVICE
I, Albert N. Peteflin, Esquire, hereby certify that a true and correct copy of the foregoing
Answer to Plaintiff's Third Set of Preliminary Objections has been served upon the following
counsel of record by first class mail, postage prepaid, addressed as follows:
Lindsay G. Maclay, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
Albert N. Peterlin, Esqmre
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DATE: March 5, 2002
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, lIl,
Defendant.
CIVIL ACTION - EQUITY
No.: 01-6062
PRAECIPE TO LIST CASE FOR ORAL ARGUMENT
TO THE PROTHONOTARY:
Please list the within matter for the next Argument Court.
1. The matter to be argued is the Plaintiff's Preliminary Objections.
2. Names and addresses of all attorneys who will argue the case:
(a) Plaintiff(s): Lindsay G. Maclay, Esquire and Michael J. Hanf~, Esquire, Hanft &
Knight, P.C., 19 Brookwood Avenue, Suite 106, Carlisle, Pennsylvania 17013-
9142
(b) Defendant(s): Albert N. Peterlin, Esquire and Mark E. Halbruncr, Esquire, Gates,
Halbruner & Hatch, P.C., 1013 Mumma Road, Suite 100, Lemoyne, Pennsylvania
17043.
Within two (2) days, I will notify all parties that this ease has been listed for
argument.
4.
Argument Court Date: May 22, 2002
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Attorney I.D. #84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Plaintiffs)
Dated: May 1, 2002
DAVID W. HALL,
PLAINTIFF
V.
ERNEST A. CLAWSER, III,
DEFENDANT : 01-6062 EQUITY
IN RE: PRELIMINARY OBJECTIONS OF PL~
DEFENDANT'S SECOND AMENDED COUN'
AND NOW, this
of plaintiff to defendant's second amended counterclaim, ARE
ORDER OF COURT
day of June, 2002, tl~e preliminary objections
Lindsay Gingrich Maclay, Esquire
For Plaintiff
//Albert N. Peterlin, Esquire
For Defendant
:saa
IN THE COURT Ol: COMMON PLEAS OF
· CUMBERLAND C(:~UNTY, PENNSYLVANIA
dNTIFF TO
'ERCLAIM
DISMISSED.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff :
V. :
:
ERNEST A. CLAWSER, l~I, :
Defendant :
CIVIL ACTION - EQUITY
No. 01-6062
PLAINTIFF'S REPLY AND ANSWER TO DEFENDANT'S SECOND AMENDED
.,ANSWER, NEW MATTER AND COUNTERCLAII~ !
AND NOW, this 8th day of July, 2002, comes Plaintiff, David W. Hall, by and through his
attorneys, Hanfi & Knight, P.C., and files the following Answer to Second Amended Answer, New
Matter and Counterclaim of the Defendant, and in support thereof, avers as follows:
1-11. No answer required.
NEW MATTER IN THE FORM OF AFFIRMATIVE DEFENSE~;
12. No answer required.
13. Denied as stated. It is specifically denied that Plaintiff and Defendant entered into
an option to enter into an Agreement of Sale. The Agreement attached to Defendant's Second
Amended Answer, New Matter and Counterclaim as Exhibit "A" speaks for itself.
14. Admitted.
15. Denied. It is specifically denied that the earnest moneypaid by Plaintiffto Defendant
was in exchange for Defendant holding the property for "a limited and definite period of time for the
benefit of Plaintiff." Strict proof thereof is demanded at trial.
16. Denied. It is specifically denied that settlement was to occur or Plaintiff or Defendant
were to enter into an Agreement of Sale on or before April 25, 2001 or the earnest monies were
forfeited. The Agreement attached to Defendant's Second Amended Answer, New Matter, and
Counterclaim as Exhibit "A" speaks for itself. Strict proof thereof is demanded at trial.
17. Denied. It is specifically denied that Plaintiff was unable to close on the property on
or before April 25, 2001. More specifically, it is specifically denied that Plaintiff was under any
obligation to close on or before April 25, 2001. Strict proof thereof is demanded at trial.
18. Denied. It is specifically denied that Plaintiff was required to provide a written letter
of commitment from a bank or other financial institution on or before April 25, 2001. Strict proof
thereof is demanded at trial.
19. Denied. It is specifically denied that Plaintiff was not able to obtain the letter of
commitment from a bank or other financial institution prior to July 2001. By way of further answer,
it is specifically denied that Plaintiff was under any obligation to do so. Strict proof thereof is
demanded at trial.
20. Denied. The averments of Paragraph 20 are a conclusion of law to which no response
is required. If a more specific response is deemed necessary, the averments of Paragraph 20 are
specifically denied and strict proof thereof is demanded at trial.
.FIRST AFFIRMATIVE DEFENSE
21. No response is required.
22. Denied. The averments of Paragraph 22 are a conclusion of law to which no response
is required. If a more specific response is deemed appropriate, the averments of Paragraph 22 are
specifically denied and strict proof thereof is demanded at trial.
23. Denied. The averments of Paragraph 23 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 23 are
specifically denied and strict proof thereof is demanded at trial.
24. Denied. The averments of Paragraph 24 are a conclusion of law to which no response
is required. If a more specific response is deemed appropriate, the averments of Paragraph 24 are
specifically denied and strict proof thereof is demanded at trial.
_SECOND AFFIRMATIVE DEFENSE
25. No response required.
26. Denied. The averments of Paragraph 26 are a conclusion of law to which no response
is required. If a more specific response is deemed appropriate, the averments of Paragraph 26 are
specifically denied and strict proof thereof is demanded at trial.
27. Denied. The averments of Paragraph 27 are a conclusion of law to which no response
is required. If a more specific response is deemed necessary, the averments of Paragraph 27 are
specifically denied and strict proof thereof is demanded at trial.
28.
THIRD AFFIRMATIVE DEFENSE
No response required.
29. Denied. It is specifically denied that the Agreement attached Defendant's Second
Amended Answer, New Matter and Countemlaim as Exhibit "A" is an option to enter into an
Agreement for the sale of real property. The Agreement attached to Defendant's Second Amended
Answer, New Matter and Counterclaim as Exhibit "A" speaks for itself. Strict proof thereof is
demanded at trial.
30. Denied. The averments of Paragraph 30 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 30 are
specifically denied and strict proof thereof is demanded at trial.
31. Denied. The averments of Paragraph 31 are a conclusion of law to which no response
is required. If a more specific response is deemed appropriate, the averments of Paragraph 31 are
specifically denied and strict proof thereof is demanded at trial.
FOURTH AFFIRMATIVE DEFENSE
32. No response required.
33. Denied. The averments of Paragraph 33 are a conclusion of law to which no response
is required. Ifa mom specific response is deemed appropriate, the averments of Paragraph 33 are
specifically denied and strict proof thereof is demanded at trial.
34. Denied. The averments of Paragraph 34 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 34 are
specifically denied and strict proof thereof is demanded at trial.
FIFTH AFFIRMATIVE DEFENSE
35. No response required.
36. Denied. The averments of Paragraph 36 are a conclusion of law to which no response
is required. If a more specific response is deemed appropriate, the averments of Paragraph 36 are
specifically denied and strict proof thereof is demanded at trial.
37. Denied. The averments of Paragraph 37 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 37 are
specifically denied and strict proof thereof is demanded at trial.
_SIXTH AFFIRMATIVE DEFENSE
38. No response required.
39. Denied. The averments of Paragraph 39 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 39 are
specifically denied and strict proof thereof is demanded at trial.
40. Denied. The averments of Paragraph 40 are a conclusion of law to which no response
is required. If a more specific response is deemed appropriate, the averments of Paragraph 40 are
specifically denied and strict proof thereof is demanded at trial.
COUNTERCLAIM
41. Denied as stated. It is specifically denied that Plaintiff and Defendant entered into
an option to enter into an Agreement of Sale. The Agreement attached to Defendant's Second
Amended Answer, New Matter and Counterclaim as Exhibit "A" speaks for itself. Strict proof
thereof is demanded at trial.
42. Admitted.
43. Denied. It is specifically denied that the earnest money paid by Plaintiff to Defendant
was in exchange for Defendant "holding the property for a limited and definite period of time for the
benefit of Plaintiff." Strict proof thereof is demanded at trial.
44. Denied. It is specifically denied that settlement was to occur or Plaintiff or Defendant
were to enter into an Agreement of Sale on or before April 25, 2001 or the earnest monies were
forfeited. The Agreement attached to Defendant's Second Amended Answer, New Matter, and
Counterclaim as Exhibit "A" speaks for itself. Strict proof thereof is demanded at thai.
45. Denied. It is specifically denied that Plaintiff was unable to close on the property on
or before April 25, 2001. More specifically, it is specifically denied that Plaintiff was under any
obligation to close on or before April 25, 2001. Strict proof thereof is demanded at thai.
46. Denied. It is specifically denied that Plaintiff was required to provide a written letter
of commitment from a bank or other financial institution on or before April 25, 2001. Strict proof
thereof is demanded at trial.
47. Denied. It is specifically denied that Plaintiff was not able to obtain the letter of
commitment from a bank or other financial institution prior to July 2001. By way of further answer,
it is specifically denied that Plaintiff was under any obligation to do so. Strict proof thereof is
demanded at trial.
48. Denied. The averments of Paragraph 48 are a conclusion of law to which no response
is required. If a more specific response is deemed necessary, the averments of Paragraph 48 are
specifically denied and strict proof thereof is demanded at trial.
49. Denied. The averments of Paragraph 49 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 49 are
specifically denied and strict proof thereof is demanded at trial.
50. Denied. The averments of Paragraph 50 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 50 are
specifically denied and strict proof thereof is demanded at trial. By way of further answer, the
averments of Paragraph 50 contain an allegation of fraud which, pursuant to the Pennsylvania Rules
of Civil Procedure, are required to be specifically pleaded. Defendant has failed to do so.
51. Denied. The averments of Paragraph 51 are neither a coherent thought nor make any
sense. Therefore, the averments of Paragraph 51 are specifically denied. Strict proof thereof is
demanded at trial.
52. Denied. The averments of Paragraph 52 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, the averments of Paragraph 52 are
specifically denied and strict proof thereof is demanded at trial. By way of further response, the
averments of Paragraph 52 contain an allegation of"arbitrary, exatious and/or in bad faith." It is
believed that Defendant is alleging conduct that is "arbitrary, vexatious and/or in bad faith." The
averments of Paragraph 52 do not conform with Pennsylvania Rule of Civil Procedure I 019, which
require that "material facts on which a cause of action or defense is based shall be stated in a concise
and summary form." Defendant has failed to do so. Therefore, the averments of Paragraph 52 are
specifically denied and strict proof thereof is demanded at trial.
WHEREFORE, Plaintiff, David W. Hall, respectfully requests that this Honorable Court
dismiss Defendant, Ernest A. Clawser, l]I's, New Matter and Counterclaim.
Respectfully submitted,
HANFT & KNIGHT, p.C.
Attorney I.D. No 57976
Lindsay Gingrich Maclay, Esquire
Attorney I.D. No. 87954
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorney for Plaintiff
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, III,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
:
CIVIL ACTION - EQUITY
:
No. 01-6062
.'
CERTIFICATE OF SERVICE
AND NOW, this 8th day of July, 2002, I, Michael J. Hanft, Esquire, hereby certify that I have
this day served the following persons with a copy of the foregoing document, by first class, United
States Mail, postage pre-paid, addressed as follows:
Albert N. Peterlin, Esquire
GATES, HALBRUNER & HATCH, P.C.
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
HANFT & KNIGHT, P.C.
~ich~~i~J~
Attorney ID No. 57976
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013~9142
(717) 249-5373
Attorney for Plaintiff
VERIFICATION
l VERIFY that the statements set forth in the attached document are tr~e 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. Section 4904 relating to unsworn falsification to authorities.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff, :
ERNEST A. CLAWSER, III, :
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
ORDER
AND NOW, this ! (. "' day .~,~ ~ ,2002, upon
consideration of Defendant's Motion to Compel Discovery from Plaintiff, it is hereby
ORDERED that Plaintiff, David W. Hail shall, within 2.,o days, serve Defencl~nt with
complete answers to Defendant's Interrogatories, Request for Production of Documents and
Request for Admissions propounded upon Plaintiff or risk fimher sanctions.
BY THE COURT:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, HI,
Defendant.
CIVIL ACTION - EQUITY
No.: 01-6062
DEFENDANT'S MOTION FOR
SANCTIONS AGAINST PLAINTIFF
AND NOW, comes the defendant, Ernest A. Clawser, III (''Defendant or"Clawser"), by
and through his attorneys, Gates, Halbnmer & Hatch, P.C., and makes the following motion for
sanctions against plaintiff, David W. Hall (''Plaintiff' or "Hall") and in support thereof avers as
follows:
1. On July 26, 2002, Defend_ant served Defendant with true and correct copies of
Interrogatories of the Defendant Addressed to the Plaintiff ("Interrogatories'); Request for
Production of Documents of the Defendant Addressed to the Plaintiff ("RFPD"); and Request for
Admissions of the Defendant Addressed to the Plaintiff C'RFA") (Collectively referred to
hereinafter as "Defendant's Discovery Requests").
2. Answers to Defendant's Discovery Requests were due on or before thirty (30)
days after service thereof pursuant to Pa.R.C.P. 4006, 4009.12 and 4014.
3. On September 5, 2002, Counsel for Defendant served Plaintiff with written notice
that Plaintiff's time for serving responses to Defendant's Discovery Requests had passed.
4. On September 11, 2002, Defendant filed Defendant's Motion to Compel
Discovery from Plaintiff ("Motion to Compel").
5. The Court granted Defendant's Motion to Compel pursuant to an order ("Order")
dated September 16, 2002. A true and correct copy of the Order is attached hereto as Exhibit
"A" and incorporated herein by reference as though set forth in full.
6. Pursuant to the Order, Plaintiffwas required to serve upon Defendant full and
complete answers to Defendant's Discovery Requests on or before October 7, 2002.
7. To date, Defendant has not received any answers whatsoever to Defendant's
Discovery Requests.
VOIEREFORE, Defendant, Ernest A. Clawser, III, respectfully requests the Court enter
an order imposing sanctions agahst Plaintiff, David W. Hall pursuant to Pa.R.C.P. 4019.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
DATE: October 18, 2002
Albe'~N. Peterlin, Esc/ui~e '
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
Exhibit A
SEP _'1 ~
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff, :
:
V.
:
ERNEST A. CLAWSER, HI, :
:
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
ORDER
n NOW, this /&+k da:,,
,2002, upon
consideration of Defendant's Motion to Compel Discovery from Plaintiff, it is hereby
ORDERED that Plaintiff, David W. Hall.shall, within. ~*. 0 days, serve Defendant with
complet~ answers to Defendant's Interrogatories, Request for Production of Documents and
Request for'A~missions propounded upon Plaintiff or risk further sanctions.
BY THE COURT:
· .'.'. 72 ? - - '
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Defendant's Motion for Sanctions Against Plaintiff, has been served upon the following co~mael
of record by first class mail, postage prepaid, addressed as follows:
Michael J. Hanft, Esquire
Lindsay G. Maclay, Esquire
LAW OFFICE OF MICHAEL J. HANFT
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
(~rt N. Peterkin, l~squil~e ~ ~-
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATE: October 18, 2002
DAVID W. HALL, :
Plaintiff :
:
vs. : 01-6062 CIVIL
:
ERNEST A. CLAWSER, II, :
Defendant : CIVIL ACTION - EQUITY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: DEFENDANT'S MOTION FOR SANCTIONS
ORDER
AND NOW, this Z ~ day of October, 2002, a brief argument on the within motion
for sanctions is set for Thursday, December 5, 2002, at 2:00 p.m. in Courtroom Number 4,
Cumberland County Courthouse, Carlisle, PA.
BYTHECOURT,
Michael J. Hanfi, Esquire
For the Plaintiff
Albert N. Peterlin, Esquire
For the Defendant
:rlm
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff, :
V. :
ERNEST A. CLAWSER, HI, :
:
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
ORDER
AND NOW, this day of ,2002, upon
consideration of Defendant's Motion for Sanctions Again.qt Plaintiff, it is hereby ORDERED
and DECREED that said motion is GRANTED and that all matters regarding which the
questions that were asked, or the character or description of the thing or land, or the contents of
the paper, or any other designated fact shall be taken to be established for the purposes of the
action in accordance with the Defendant's defense and claim(s) pursuant to Pa.R.C.P. No.
4019(c)(1). Further, Plaintiffs shall not support or oppose the Defendant's designated claims
pursuant toO Pa.R.C.P. No. 4019(c)(2).
BY THE COURT:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, HI,
Defendant.
CIVIL ACTION - EQUITY
No.: 01-6062
DEFENDANT'S MOTION FOR
SANCTIONS AGAINST PLAINTIFF
AND NOW, comes the defendant, Ernest A. Clawser, III ("Defendant or "Clawser"), by
and through his attorneys, Gates, Haibruner & Hatch, P.C., and makes the following motion for
sanctions again.qt plaintiff, David W. Hail ("Plaintiff" or "Hall") and in support thereof avers as
follows:
1. On July 26, 2002, Defend_ant served Defendant with true and correct copies of
Interrogatories of the Defendant Addressed to the Plaintiff ("Interrogatories"); Request for
Production of Documents of the Defendant Addressed to the Plaintiff ("RFPD"); and Request for
Admissions of the Defendam Addressed to the Plaintiff ("RFA") (Collectively referred to
hereinafter as "Defendant's Discovery Requests").
2. Answers to Defendant's Discovery Requests were due on or before thirty (30)
days after service thereof pursuant to Pa.R.C.P. 4006, 4009.12 and 4014.
3. On September 5, 2002, Counsel for Defendant served Plaintiff with written notice
that Plaintiff's time for serving responses to Defendant's Discovery Requests had passed.
4. On September 11, 2002, Defendant filed Defendant's Motion to Compel
Discovery from Plaintiff ("Motion to Compel").
5. The Court granted Defendant's Motion to Compel pursuant to an order ("Order")
dated September 16, 2002. A tree and correct copy of the Order is attached hereto as Exhibit
"A" and incorporated herein by reference as though set forth in full.
6. Pursuant to the Order, Plalntiffwas required to serve upon Defendant full and
complete an.qwers to Defendant's Discovery Requests on or before October 7, 2002.
7. To date, Defendant has not received any an.qwers whatsoever to Defendant's
Discovery Requests.
WHEREFORE, Defendant, Ernest A. Clawser, III, respectfully requests the Court enter
an order imposing sanctions again.qt Plaintiff, David W. Hall pursuant to Pa.R.C.P. 4019.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATE: October 18, 2002
Exhibit A
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
:
Plaintiff, :
._
ERNEST A. CLAWSER, III, :
:
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
ORDER
day ~~.~, 2002, upon
AND NOW, this
consideration of Defendant's Motion to Compel Discovery from Plaintiff, it is hereby
ORDERED that Plaintiff, David W. Hall shall, within ~. 0 days, serve Defendant with
complet~ an~qwers to Defendant's Interrogatories, Request for Production of Documents and
Request for A4missions propounded upon Plaintiff or risk further sanctions.
BY THE COURT:
Q _ '2
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Defendant's Motion for Sanctions Against pl_ainfiff, has been served upon the following counsel
of record by fu'st class mail, postage prepaid, addressed as follows:
Michael J. Han~t, Esquire
Lin&say G. Maclay, Esquire
LAW OFFICE OF MICHAEL J. HANFT
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
~b~rf N.~e~er~m, l~squi~eV ~-
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendan0
DATE: October 18, 2002
DAVID W. HALL,
Plaimiff
VS.
ERNEST A. CLAWSER, II,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-6062 CIVIL
CIVIL ACTION - EQUITY
IN RE: DEFENDANT'S MOTION FOR SANCTIONS
ORDER
AND NOW, this 2 ~' ~ day of October, 2002, at the request of counsel for the
defendant, argument on the within motion for sanctions set for Thursday, December 5, 2002, at
2:00 p.m. is changed to 4:00 p.m. on the same day, in Courtroom Number 4, Cumberland County
Courthouse, Carlisle, PA.
BY THE COURT,
Michael J. Hanft, Esquire
For the Plaintiff
Albert N. Peterlin, Esquire
For the Defendant
A. Hess, J.
~ IL>- ~ f'~od.~
:rim
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
vs.
ERNEST A. CLAWSEI~ HI,
Defendant
CIVIL ACTION - EQUITY
No.: 01-6062
NOTICE PURSUANT TO Pa.R.C,P. 236
To Plaintiff:
David W. Hall
c/o Michael J. Hanft, Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
You are hereby notified that on
o 2002, the
following Order has been entered against you in thc
above-captioned case:
Complaint Dismissed with Prejudice
A D~endido(s)/a(as):
David W. Hall
c/o Michael J. Han~ Esquire
Hanft & Knight, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
Por este medio se le esta notificando que el
de del 2002, el/la
siquiente Fallo has sido a~otado en contra suya en el
caso mencionado en el cpigrafe.
Date:
l~othonotav/
I hereby certify that the name ~md address of
the proper person(s) to receive this notice is:
Michael J. Hanfl, Esquire
Hanfl & Knight, P.C.
19 Bmokwood Avenue, Suite 106
Carlisle, PA 17013-9142
Fecha:
Protonotario
Ce~Sfico que la sigquiente direccion es la
del defendido/a segun indicada ea el certificado de
residencia:
Michael J. Hanft, Esquire
Hanft & Knight, P.C.
19 Bmokwood Avenue, Suite 106
Carlisle, PA 17013-9142
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
:
Plaintiff, :
VS. :
:
ERNEST A. CLAWSER, HI, :
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Defendant, Ernest A. Clawser, III ("Defendant" or "Clawser"), by and through his
attorneys, Gates, Halbruner & Hatch, P.C., makes the following motion for summary judgment
against the plaintiff, David W. Hall ("Plaintiff" or "Hall"):
1. Hall instituted the instant action by filing a Praecipe for a Writ of Summons and
Lis Pendens with this Court in October 22, 2001.
2. A writ of summons was issued on October 23, 2001.
3. Coun.qel for Defendant filed a Praecipe to Enter Appearance on October 31, 2002.
4. Defendant filed a Praecipe to Enter Rule upon the Plaintiffto File Complaint on
November 15, 2002.
5. Plaintiff filed a Complaint on December 5,2001.
6. Defendant fried an Answer, New Matter and Counterclaim of the Defendant
("Answer") with this Court on December I0, 2001.
7. On or about January 4, 2002, Plaintiff filed Preliminary Objections to Defendant's
Answer (''First Preliminary Objections").
8. On January 9, 2002, Defendant filed an Amended Answer, New Matter and
Counterclaim of the Defendant (''Amended Answer") with this .Court in response to Defendant's
First Preliminary Objections.
9. On or about February 5, 2002, Plaintiff filed Preliminary Objections ("Second
Preliminary Objections") to Defendant's Amended Answer.
10. On February 11, 2002, Defendant filed a Second Amended An.~wer, New Matter
and Counterclaim of the Defendant ("Second Amended Answer") with this Court in response to
Defendant's Second Preliminary Objections.
11. On March 1, 2002, Plaintiff filed Preliminary Objections ("Third Preliminary
Objections") to Defendant's Second Amended An.~wer.
12. On March 6, 2002, Defendant filed an Answer to Plaintiff's Third Set of
Preliminary Objections.
13. Plaintiff's Third Preliminary Objections were de~ied pursuant to an Order of this
Court dated June 18, 2002.
On July 2, 2002, Plaintiff filed an answer to Defendant's Second Amended
14.
Answer.
15.
16.
As a result of the foregoing, the Pleadings are closed.
Pursuant to an Order entered December 5, 2002, the Request for Admissions of
the Defendant addressed to the Plaintiff are admitted. A tree and correct copy of the Request for
Admission of the Defendant addressed to the Plaintiff are attadted hereto as Exhibit "A" and
incorporated herein by reference as though set forth in full.
17. Plaintiff admits that Plaintiff desired and/or intended to purchase certain real
property commonly identified as Lot Number 4, Old Willow Mill Road, Mechanicsburg,
Cumberland County, Pennsylvania ("Property") from the Defendant. See Exhibit "A."
18. Plaintiff admits that in furtherance of the proposed or contemplated real estate
transaction, Plaintiff and Defendant executed a Letter setting forth the purchase price and the
period of time within which Plalntiffmust close on the Property. See Exhibit "A.
19. Plaintiff admits that he provided two thousand mad 00/100 dollars ($2,000.00) in
earnest money ("Earnest Money") to Defendant regarding the proposed purchase of the Property.
See Exhibit "A."
20. Plaintiff admits that pursuant to the Letter, Plainliffwas required to settle or close
on the Property no later than April 25, 2001. See Exhibit "A."
21. Plaintiff admits that he was unable to obtain financing or even a letter of
commitment on or before April 25, 2001. See Exhibit "A."
22. Plaintiff admits that the Earnest Money became non-reftmdable after April 26,
2001 where Plaintiff was unable to settle or close on the Property. See Exhibit "A."
23. Plaintiff admits that Defendant was under no obligation to sell the Propen'y to
Plaintiff or to enter into an agreement of sale with Plaintiff after April 25, 2001.
24. There is no genuine issue of any material fact as to Defendant's defense.
25. Defendant is entitled to judgment as a matter of law.
WItEREFORE, Defendant, Ernest A. Clawser, Il/, respectfully requests that the Court
enter an Order granting Defendant's Motion for Summary Judgment and dismissing Plaintiff's
Complaint with prejudice, plus costs, attomey fees and such other relief as is just.
GATES, HALBRUNER & HATCH, P.C.
Albert N. Peterlin, Esquire
Attorney ID No. 84180
1013 Mnmma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATED: December 12, 2002
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, : CIVIL ACTION - EQUITY
:
Plaintiff, : No.: 01-6062
:
V. :
:
ERNEST A. CLAWSER, III, :
Defendant. :
REQUEST FOR ADMISSIONS
OF THE. DEFENDANT
ADDRESSED TO THE PLAINTIFF
PLEASE TAKE NOTICE that the Plaintiff, David W. Hall (hereinafter referred to as
"Plaintiff' or "Hall") is required, pursuant to Pa. R. Civ. P. 401,4, to serve upon the undersigned
aa original of Plaintiff's answers in writing and under oath, to the following requests for
admissions within thirty (30) days after the service of this document.
A. GENERAL INSTRUCTIONS
1. The General Instructions set forth in Defendant, Ernest A. Clawser, III's
Interrogatories of the Defendant Addressed to the Plaintiff are incorporated by reference as
though set forth fully at length herein.
B. DEFINITIONS
1. The Definitions set forth in Defendant, Ernest A. Clawser, III's Interrogatories of
the Defendant Addressed to the Plaintiff are incorporated by reference as though set forth fully at
length herein.
REQUESTS FOR ADMISSIONS
1. Plaintiff desired and/or intended to purchase the Property from Defendant.
2. Plaintiff and Defendant executed the Letter.
3. Pursuant to the Letter, the proposed purchase price of the Property was thirty-
seven thousand and 00/100 ($37,000.00) dollars.
4. Pursuant to the Letter, Plaintiff provided two thousand and 00/100 ($2,000.00)
dollars in earnest money to Defendant regarding the proposed purchase of the Property.
5. Pursuant to the Letter, the earnest money Plaintiff paid and which is described in
the previous paragraph was refundable for no more than thirty (30) days beginning on March 27,
2001.
6. Plaintiff was unable to obtain financing from any person, including but not limited
to any bank, mortgage company or other lending institution, in an amount sufficient to settle on
the Property on or before April 25, 2001.
7. Plaintiffwas unable to obtain a commitment letter from any person, including but
not limited to any bank, mortgage company or other leading institution, for financing regarding
the proposed purchase of the Property on or before April 25, 2001.
8. After the expiration ofthixty (30) days beginning on March 27, 2001, Defendant
became under no obligation to refund the eamest money Plaintiff paid and which is described in
Paragraph 4 hereof.
9. After the expiration of thirty (30) days beginning on March 27, 2001, Defendant
became under no obligation to enter into an agreement of sale for the Property to Plaintiff.
10. After the expiration of thirty (30) days beginning: on March 27,2001, Defendant
became under no obligation to sell the Property to Plaintiff.
(Signature Page Follows Immediate Hereto)
2
GATES, HALBRUNER & HATCH, P.C.
Date:
~ib~t N. Peterlin, ~Esqu~re
Attorney for Defendant
(Signature Page of Request for Admissions of Defendant Addressed to Plaintiff,
David v. Hall vs. Ernest A. Clawser, m)
3
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, ESquire, hereby certify that a true and correct copy of the foregoing
Request for Admissions of the Defendant Addressed to the Plaintiff, has been served upon the
following counsel of record by first class mail, postage prepaid, addressed as follows:
Michael J. Hanft, Esquire
Lindsay Gingrich Maclay, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 10'6
Carlisle, PA 17013-9142
DATED: July 26, 2002
GATES, HALBRUNER & HATCH, P.C.
Albert N. Peterlin, Esquire ~
Attorney for the Defendant
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a tree and correct copy of the foregoing
Defendant's Motion for Summary Judgement, has been served upon the following counsel of
record by first class mail, postage prepaid, addressed as follows:
Michael J. Hanft, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, ltALBRUNER & HATCH, P.C.
A~ffer~ N. ~deterlin,~Esqu~ e -- '
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATE: December 12, 2002
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, III,
Defendant.
CIVIL ACTION - EQUITY
No.: 01-6062
PRAECIPE TO LIST CASE FOR ORAL ARGUMENT
TO THE PROTHONOTARY:
Please list the within matter for the next Argument Court.
1. The matter to be argued is the Defendant's Motion for Summary Judgment.
2. Names and addresses of all attorneys who will argue 'the case:
(a) Plaintiff(s): Michael J. Hanft, Esquire, Hanft & Knight, P.C., 19 Brookwood
Avenue, Suite 106, Carlisle, Pennsylvania 17013-9142
(b) Defendant(s): Albert N. Peterlin, Esquire and Mark E. Halbruner, Esquire,
Gates, Halbruner & Hatch, P.C., 1013 Murmma Road, Suite 100, Lemoyne,
Pennsylvania 17043.
Within two (2) days, I will notify all parties that this case has been listed for
argument.
4.
Argument Court Date: February 12, 2003
Respectfully submitted,
GATES, H[ALBRUNER & HATCH, P.C.
Albert N. Pete'rlin/Esqu]r-e %/r t I
Attorney I.D. #84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-!9600
(Attorneys for Defendant)
Dated: January 22, 2003
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Praecipe to List Case for Oral Argument, has been served upon the following counsel of record
by United States fn'st class mail, postage prepaid, addressed as :follows:
Michael J. Hanft, Esquire
LAW OFFICE OF MICHAEL J. HANFr
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
DATE: January 22, 2003
Albert N. I'eterlid, g:s l ' e c .7r U
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DAVID W. HALL,
Plaintiff
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND CO[;NTY, PENNSYLVANIA
vs. ' 01-6062 CIVIL
ERNEST A. CLAWSER, II, ·
Defendant -
CIVIL ACTION - EQUITY
DEFENDANT'S MOTION FOR SUMlvIARY JUDGMENT
BEFORE BAYLEY AND HESS., J.J.
ORDER
AND NOW, this /Z* day of February, 2003, the :motion of the defendant for
summary judgment is GRANTED.
/~Viichael J. Hanfi, Esquire
For the Plaintiff
t/Albert N. Peterlin, Esquire
For the Defendant
:rlm
BY THE COURT,
ess, J.
02-1
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
VS.
ERNEST A. CLAWSER, III,
Defendant
CIVIL ACTION - EQUITY
No.: 01-6062
PRAECIPE TO LIST COUNTERCLAIM FOR TRIAL
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the following case:
(check one) ( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
The trial list will be called on.
and
Trials commence on
Pretrials will be held on
(Bdefs are due 5 days before pretrials.)
(The party listing this case for trial shall provide forthwith a copy ol; the praecipe to all counsel,
pursuant to local Rule 214-1 .)
No. 01-6062 Civil - Equity
Attorney who will try case for the Counterclaim-Plaintiff/Defendant is Albert N. Peterlin, Esquire, Gates
Halbruner & Hatch, P.C., 1013 Mumma Road, Suite 100, Lemoyne, Pennsylvania 17043.
Upon information and belief, trial counsel for Counterclaim-Defendant/Plaintiff is Michael J. Hanft,
Esquire, Hanfi & Knight, P.C., 19 Brookwood Avenue, Suite 106, Carlisle, Pennsylvania 17013-9142.
Name: Albert N. Peterlin, Esquire
Date:March 11, 2003 Attorney for: Counterclaim-Plaintiff/Defendant
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Praecipe to List Counterclaim' for Trial has been served this day upon the following counsel of
record by United States first class mail, postage prepaid, at the fi>llowing address:
Michael J. Hanft, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106.
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
DATE: March 11, 2003
eft N. Peterlin, Esqhire v -x~ -. v "
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DAVID W. HALL, :
Plaintiff :
:
vs. : 01-6062 CIVIL
:
ERNEST A. CLAWSER, II, :
Defendant : CIVIL ACTION - EQUITY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: NONJURY TRIAL
ORDER
AND NOW, this ] ~e day of March, 2003, pretrial conference in the above
captioned matter is set for Wednesday, April 9, 2003, at 9:00 a.m. in the Chambers of the
undersigned.
BY THE COURT,
Michael J. Hanft, Esquire
For the Plaintiff
Albert N. Peterlin, Esquire
For the Defendant
:rim
IN THE COURT OF COMMON F'LEAS OF
CUMBERLAND COUNTY, PENNSYLVANI/~
DAVID W. HALL,
Plaintiff
ERNEST A. CLAWSER, 1II,
Defendant
CIVIL ACTION - EQUI
No. 01-6062
PLAINTIFF'S MOTION FOR WITHDRAWAL OF ADMI~
AND NOW, this 9th day of April, 2003, comes the Plaintiff, David W.
his attorneys, Hanft & Knight, P.C., to file a Motion for Withdrawal of Adr
Pennsylvania Rule of Civil Procedure 4014(d), in support of which Motion a
1. On or about March 27, 2001, David W. Hall (hereinafter "Plait
Clawser, m (hereinafter "Defendant") entered into a written Agreement of S~
premises known as Lot No. 4, Old Willow Road, Mechanicsburg, Cumberland ¢
(hereinafter "Premises").
2. Pursuant to the Agreement of Sale, Plaintiff tendered to the Defen
Thousand Dollars ($2,000.00) as an"eamest money" deposit, with said deposit 1
thirty (30) days after March 27, 2001.
3. Plaintiff did not conclude the transaction by March 27, 2001, wi
refused to sell the Premises to Plaintiff and declined to refund Plaintiff's depc
FY
SIONS
?Iall, by and through
tissions, pursuant to
'ers as follows:
tiff") and Ernest A.
le for the sale of the
ounty, Pennsylvania
[ant the sum of Two
eing non-refundable
lereupon Defendant
sit.
4. The Agreement of Sale was silent as to the terminal date for Pit
Premises and there were no other written agreements between the parties re
5. Plaintiff instituted the instant action against Defendant by filing
Summons and a Lis Pendens on October 22, 2001.
6. On November 15, 2001, Defendant filed a Praecipe to Enter Rule
File a Complaint. Plaintiff filed a Complaint on December 5, 2001.
7. Written discovery was served on Plaintiff by Defendant; Plaintit
Defendant's discovery and, by Order dated December 5, 2002, this Hon,
Defendant's Motion for Sanctions.
8. On December 16, 2002, Defendant filed a Motion for Summary Jud
claim; pursuant to an Order dated February 12, 2003, DefendanI's Motion fo
was granted and Plaintiff's claim for specific performance was dismissed wil
9. This matter is before the Court solely for the purposes of dete:
counterclaim, wherein Defendant seeks damages on the basis of the allegation ti
his action for arbitrary, vexatious, or bad faith reasons.
10. Defendant's allegations that Plaintiff instituted his action for arbitr;
faith reasons are premised upon this Court's Order of Februa~ 12, 2003,
Pa.R.C.P. 4014(b), Defendant's requests for admissions were admitted in light
to respond in a timely manner.
11. The reason for Plaintiff's failure to answer or respond to said requeS
his desire to end the litigation due to financial hardship. Having become disillu~
with the case, he was wary of incurring further legal expenses, in addition to ti
he anticipated being called upon to forfeit.
intiff to settle on the
arding the premises.
Praecipe for Writ of
Upon the Plaintiff to
did not respond to
~rable Court granted
ment as to Plaintiff' s
Summary Judgment
prejudice.
aining Defendant's
tat Plaintiff instituted
fy, vexatious, or bad
thereby, pursuant to
of Plaintiff's failure
for admissions was
[oned and frustrated
~e $2000.00 deposit
12. Pursuant to Pa.R.C.P. 4014(d), this Court may "permit withdra,~
admissions] when the presentation of the merits of the action will be subserve,
who obtained the admission fails to satisfy the court that withdrawal or amel
him or her in maintaining the action or defense on the merits."
13. The contents of Defendant's Requests for Admissions request rel
and material facts in dispute in Defendant's counterclaim, namely, whether
action for arbitrary, vexatious, or bad faith reasons.
14. The merits and substance of Defendant's counterclaim can onl
Plaintiff is permitted to withdraw his admissions.
15. Pre-Trial in this matter has been set for April 9, 2003, thus,
sufficient time to conduct discovery regarding the matters addressed in the orig:
request.
16. Defendant cannot demonstrate any real or meaningt~.fl prejudice to
permitting Plaintiff to withdraw his admissions. However, the failure of the
withdrawal by Plaintiff will cause demonstrable and unjust prejudice to Plai
defend the counterclaim on the merits.
· al or amendment [of
thereby and the party
dment will prejudice
Lte to essential issues
laintiff instituted his
be preserved if the
~efendant will have
~al written discovery
himself by an Order
Court to allow such
ttiff in his ability to
WHEREFORE, Plaintiff respectfully requests that this Honorable
permitting Plaintiff to withdraw the deemed admitted Request for Admk,
discovery requests only as they would relate to Defendant's Counterclaim.
~ourt enter an Order
~ions to Defendant's
Respectfully submitted,
HANFT & KNIGHT, P.,
chael J. Hanfi, F:~qui~
Attorney I..D. No. 57976
19 Broolc~rood Avenue,; uite 106
Carlisle, Pennsylvania 1 7013
(717) 249-5373
Attorney for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, this 9th day of April, 2003, I, Michael J. Hanfi, Esquire
have this day s6rved the following persons with a copy of the foregoing docum,
and by first class, United States Mail, postage pre-paid, addressed as follows
Albert N. Peterlin, Esquire
GATES, HALBRUNER & HATCH, P.C.
1013 Mumma Road, Suite 100
Lemoyne, Pennsylvania 170413
HANFT & KNIGHT, P.
Miethael J. Hanfl, Esq~ri
Attorney Il) No. 57976
19 Brookwood Avenue, ~
Carlisle, PA 17013-9142
(717) 249-5373
Attomey for Plaintiff
hereby certify that I
~nt, by hand delivery
uite 106
DAVID W. HALL, Plaintiff
VS.
ERNEST A. CLAWSER, II, '
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-6062 CIVIL
CIVIL ACTION - EQUITY
IN RE: pRETRIAL CONFERENC~E
Present at a pretrial conference held this date were Albert N. Peterlin, l~squire, attorney
for Ernest A. Clawser, II, defendant/counterclaimant, and Michael J. Hanft, Eflquire, attorney for
David W. Hall, plaintiff/counterclaim defendant.
In this case, the plaintiff had filed an action in specific performance with regard to an
agreement for the sale of premises on Old Willow Road, Mechanicsburg, Cmhberland County,
Pemasylvania. In the course of that litigation, he failed to respond to requests for admissions, one
of which was an acknowledgement that he had lost the right to purchase the property. The
plaintiff, thereafter, suffered summary judgment·
The counterclaim of the defendant is the only matter remaining before the court. This
involves the contention that the litigation was commenced in bad faith and that the filing was
vexatious under 42 P.S. 2503(9).
Trial in this case has been set for June 9, 2003, at 9:30 a.m. One imPortant issue will be
the import the plaintiff's deemed admissions in the resolution of the defeniant's counterclaim.
The plaintiff is currently in the process of filing a motion for withdrawal of those admissions.
The defendant/counterclaimant intends to respond. After filing, the motion and the answer
should be referred to the undersigned for resolution, hopefully without th6 necessity for oral
argument.
April 9, 2003
~ev///.l~ A~. ~ess,~.~
Michael J. Hanft, Esquire
For the Plaintiff/Counterclaim Defendant
Albert N. Peterlin, Esquire
For the Defendant/Counterclaimant
Court Administrator
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, HI,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: NO.: 01-6062
Defendant :
ANSWER TO PLAINTIFF'S MOTION
FOR WITHDRAWAL OF ADMISSIONS
Thc Defendant, Ernest A. Clawser, III ("Clawser"), by and through his attorneys, Gates,
Halbruner & Hatch, P.C., answer thc Motion for Withdrawal of Admissions of Plaintiff, David
W. Hall ("Plaintiff') and aver as follows:
1. Denied. Thc averment refers to a writing that speaks for itself.
2. Admitted in part, denied in part. It is admitted that Plaintiff tendered two
thousand and 00/100 dollars ($2,000.00) as an "earnest money" deposit, with said deposit being
non-refundable thirty (30) days after March 27, 2001. All other averments contained in this
Paragraph are denied.
3. Admitted in part, denied in part. It is admitted that Plaintiff did not conclude the
transaction on or before March 27, 2001. By way of further explanation, Plaintiff represented to
Defendant that he would be able to obtain financing within one (1) week of the date of the Letter.
Plainitff was unable to do so and, in fact, was unable to obtain a letter of commitment within
thirty (30) days of March 27, 2001. Thereafter, in early May, 2001, Plaintiff conveyed to
Defendant that Plaintiff was unable to even obtain a letter of commitment until mid-July, 2001.
At that point, Defendant retained PlaintiWs deposit and properly refused to sell the Property to
Plaintiff pursuant to the letter. All other averments contained in this Paragraph are denied.
4. Denied. The averment refers to a writing that speaks for itself. By way of further
response, the letter required the Plaintiff to settle on or before thirty (30) days after
March 27, 2001.
5. Admitted.
6. Admitted.
7. Admitted. By way of further response, the Order states that "the contents of the
paper or any other designated fact shall be taken to be established for the purposes of this action
in accordance with the Defendant's defense and claim pursuant to Pa.R.C.P. 4019, and same
shall be neither supported nor opposed by the Plaintiff."
8. Admitted.
9. Admitted.
10. Denied. Defendant's counterclaim is premised upon, inter alia, the letter, dated
March 27, 2001, executed by Plaintiff and Defendant, and the admissions of the Plaintiff,
deemed admitted pursuant to an Order dated December 5, 2002 and, as a result, conclusively
established pursuant to Pa.R.C.P. 4014(d).
11. Denied. After reasonable investigation, Defendant lacks knowledge or
information sufficient to form a belief as to the troth of the averments set forth in this paragraph.
By way of farther response, it is irrelevant as to why Plaintiffinstimted this cause of action why
Plaintiff desires to extricate himself from this litigation. By way of further response, Defen~nt
never wished to be involved in this litigation to begin with but has properly proceeded to enforce
his rights. Further, Plaintiff only now, at this late stage, wishes to withdraw the admissions
2
deemed admitted by the Order dated December 5, 2002 where he faces having to reimburse
Defendant the cost of the suit he initiated. Plaintiff had no trouble instituting litigation and
forcing defendant to incur substantial costs defending the case or in impeding the Defendant's
ability to sell the Property to a buyer that actually was ready, willing and able.
12. Denied. The averments in this paragraph contain conclusions of law to which no
response is required. By way of further response, this motion is actually a disguised Motion for
Reconsideration of this Court's Order, dated December 5, 2002, granting Defendant's Motion for
Sanctions. As a result, the applicable standard is that of a motion for reconsideration, which
must be brought within thirty (30) days of the entry of the relevant order. Plalntiff has not done
SO.
13. Denied. The matters set forth in Defendant's Request for Admissions are
conclusively established pursuant to Pa.R.C.P. 4014(d) and this Court's Order, dated December
5, 2002, which expressly related to Defendant's defenses and claims.
14. Denied. The averments in this paragraph contain conclusions of law to which no
response is required. However, pursuant to this Court's Order dated December 5, 2002, "the
contents of the paper or any other designated fact shall be taken to be established for the purposes
of this action in accordance with the Defendant's defense and claim pursuant to Pa.R.C.P. 4019,
and same shall be neither supported nor opposed by the Plaintiff." By way of further response,
this motion is actually a disguised Motion for Reconsideration of this Court's Order, dated
December 5, 2002, granting Defendant's Motion for Sanctions. As a result, the applicable
standard is that of a motion for reconsideration, which must be brought within thirty (30) days of
the entry of the relevant order. Plaintiff has not done so.
3
15. Admitted in part, denied in part. It is admitted that a Pre-Trial conference was
conducted on April 9, 2003. All other averments contained in this paragraph are denied.
16. Denied. This motion is actually a disguised Motion for Reconsideration of this
Court's Order, dated December 5, 2002, granting Defendant's Motion for Sanctions. As a result,
the applicable standard is that of a motion for reconsideration, which must be brought within
thirty (30) days of the entry of the relevant order. Plaintiff has not done so. By way of further
response, Pa.R.C.P 4014(d) is applicable where a party fails to respond or responds in an
untimely fashion to discovery requests. Such a failure effects an automatic admission of the
discovery requests without the party propounding the discovery being required to affirmatively
move for the same. The instant case is beyond that where Plaintiff failed to respond to an Order
compelling a response to Defendant's discovery requests and an Order, dated December 5, 2002,
granting Defendant's Motion for Sanctions in the form of admissions was entered.
WHEREFORE, Defendant, Ernest A. Clawser, III respectfully requests that this Court
deny the Plaintiff' s Motion for Withdrawal of Admissions.
Respectfully submitted,
GATES, IIALBRUNER & HATCH, P.C.
"Alb e/~N.~eter~, ~s~ ~/~
Attorney ID No. $4150
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATE: April 11, 2003
4
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a lxue and correct copy of the foregoing
Answer to Plaintiff's Motion for Withdrawal of Admissions, has been served upon the following
counsel of record by £~rst class mail, postage prepaid, addressed as follows:
Michael J. Hanft, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
DATED: April 11, 2003
GATES, HALBRUNER & HATCH, P.C.
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
go
ERNEST A. CLAWSER, III,
Defendant
CIVIL ACTION - EQUITY
No. 01-6062
ORDER
for WithAdrNDawaN1OofW} t~his. /'. °t"day °f ~°~, 2003, upon consideration of plmn ·
~mmss~ons, IT IS ORDERED that Plaintiff: - _ . tfff's Motion
· ~s t~eemecl to nave withdrawn the
deemed admitted admissions to Defendant's discovery request solely for purposes of Defendant's
counterclaim and for no other purpose.
BY THE COURT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
Plaintiff, :
VS. :
ERNEST A. CLAWSER, III, :
CIVIL ACTION - EQUITY
No.: 01-6062
Order dated April 15, 2003:
I. BACKGROUND
1. On July 26, 2002, Defendant served Plaintiff with certain discovery requests
including, but not limited to, a request for admissions pursuant to Pa.R.C.P. 4001(d) and 4014(a).
2. Pursuant to Pa.R.C.P. 4014(b), Plaintiff was req~fired to serve answers to
Defendant's request for admissions on or before August 28, 2002.
3. Plaintiff failed to serve Defendant with any anew'ers to Defendant's request for
admissions and has not done so to date.
4. As a result, Plaintiff was deemed to have admitted all of the above-mentioned
request for admissions pursuant to Pa.R.C.P. 4014(b).
5. As of August 28, 2002, pursuant to Pa.R.C.P. 4014(d), the admissions were
deemed to be conclusively establishe&
6. At this time, the admissions were made "under" Pa.R.C.P. 4014.
Defendant. :
DEFENDANT'S MOTION FOR RECONSIDERATION
OF Ti:l~ ORDER DATED APRIL 15, 2003
Defendant, Ernest A. Clawser, III ("Defendant" or "Clawser"), by and through his
attorneys, Gates, Halbruner & Hatch, P.C., makes the following motion for reconsideration of the
7. On September 11, 2002, Defendant fried a Motion to Compel.
8. Defendant's Motion to Compel was granted pursuant to this Court's Order dated
September 16, 2002.
9. Plaintiff failed to comply with this Court's Order dated September 16, 2002 and
did not serve Defendant with answers to Defendant's request for admissions.
10. On October 21, 2002, Defendant filed a Motion for Sanctions.
11. Defendant's Motion for Sanctions was granted pursuant to this Court's order
dated December 5, 2002.
12. Pursuant to the Order dated December 5, 2002, all matters contained in
Defendant's request for admissions were deemed to be admitted.
13. The matters admitted pursuant to the Order dated December 5, 2002 were
admitted outside of or not "under" Pa.R.C.P. 4014.
14. On December 16, 2002, Defendant fried a Motion for Summary Judgment
regarding Plaintiff's claim for specific performance.
15. Defendant's Motion for Summary Judgment was granted by Order dated February
12, 2003 and Plaintiff's claim for specific performance was dismissed with prejudice.
16. On March 12, 2003, Defendant filed a Praecipe to List Counterclaim for Trial.
17. On April 9, 2003, Plaintiff filed a Motion for Withdrawal of Admissions.
18. On April 12, 2003, Defendant filed an Answer to Plaintiff's Motion for
Withdrawal of Admissions.
19. On April 14, 2003, Plaintiff fried a Brief in Support of PlaintiWs Motion for
Withdrawal of Admissions.
2
20. On April 15, 2003, this Court, by Order dated April 15, 2003, granted Plaintiff's
Motion for Withdrawal of Admissions without providing Defendant the opportunity to file a
brief in support of his Answer to PlaintiWs Motion for Withdrawal of Admissions.
21. The Order dated April 15, 2003 is interlocutory.
22. It is up to the discretion of the Court to entertain a motion for reconsideration.
23. A motion for reconsideration is the appropriate vehicle for bringing to the Court's
attention law not previously considered in the entry of an order.
II. Plaintiff's Admissions Established Pursuant to Order Dated December 5,
2002 Were Conclusively Established Outside and Not "Under" Pa.R.C.P. 4014
24. Pa.R.C.P. 4014(a) allows a party to serve a request for admissions of fact upon
any other party.
25. Pa.R.C.P. 4014(b) requires the responding party to serve an answer on the
propounding party within thirty days of service of the requests or the requests are deemed
admitted.
26. Pa.R.C.P. 4014(d) provides that any matter admitted "under this rule" is
conclusively established unless the court on motion permits withdrawal or amendment of the
admission.
27.
of the thirty day period subsequent to Defendant's service of the discovery requests on Plaintiff.
28. PlaintiWs admissions were conclusively established "under" Pa.R.C.P. 4014(d),
as of the expiration of the thirty day period subsequent to Defendant's service of the discovery
requests on Plaintiff.
PlaintiWs admissions were admitted under Pa.R.C.P. 4014(b), as of the expiration
3
29. Plaintiff's admissions were conclusively established outside or not "under"
Pa.R.C.P. 4014 as of the entry of this Court's Order dated December 5, 2002.
30. Plaintiff's admissions conclusively established pursuant to this Court's Order
dated December 5, 2002 may not be withdrawn pursuant to Pa.R.C.P. 4014(d) where the
admissions were conclusively established outside or not "under" Pa.R.C.P. 4014.
31. Plaintiff's Motion for Withdrawal of Admissions/s a disguised Motion for
Reconsideration of this Court's Order dated December 5, 2002.
32. Plaintiff has not set forth any new law or facts not previously considered by this
Court in order to justify reconsideration of this Court's Order dated December 5, 2002.
HI. Defendant is Prejudiced by the Withdrawal of the Admissions Where
Defendant is Denied the Rig_ht and Abili~ to Engage in Discovery_ in
Order to Prosecute Claims as is Provided for in Pa.R.C.P. 4001 and 4014.
33. Pa.R.C.P. 4014(d) permits a party who has admitted material facts to move the
Court to withdraw the admissions in order to proceed on the merits.
34. Pa.R.C.P. 4014(d) requires the party who obtained the admissions to demonstrate
prejudice to him in maintaining the action on the merits in the event the admissions are
35. Pa.R.C.P. 4001 (a) and (d) provides a party with the right and power to engage in
discovery including, but not limited to, propounding request for admissions upon any party to an
action.
36. Discovery of the facts is favored in order to develop a full and complete record, to
avoid surprise and seek the truth.
37. Plaintiff is circumventing the above rules of procedure by simply ignoring them.
4
38. The withdrawal of the admissions forces Defendant to prosecute his counterclaim
and to engage in trial without the benefit of discovery as expressly permitted in the Pennsylvania
Rules of Civil Procedure.
39. As set forth above, Defendant suffers severe prejudice by being forced to
prosecute his counterclaim without the benefit of basic litigation rights expressly provided for in
the Pennsylvania Rules of Civil Procedure.
'WHEREFORE, Defendant, Ernest A. Clawser, III, respectfully requests that the Court
enter an Order granting Defendant's Motion for Reconsideration of the Order Dated April 15,
2002 and denying Plaintiff's Motion for Withdrawal of Admissions, plus costs, attorney fees and
such other relief as is just.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Albert N. Peterlin, E4sq~ir~- -~/~'~ ~
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendan0
DATED: April 18, 2003
5
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a tree m~d correct copy of the foregoing
Defendant's Motion for Reconsideration of Order Dated April 15, 2003, has been served upon
the following counsel of record by first class mail, postage prepaid, addressed as follows:
Michael J. Hand, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
~l~}~r~N. Peterlin~ E~ssq~ireTM
Attorney for the Defendant
DATED: April 18, 2003
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff
Vo
ERNEST A. CLAWSER, llI,
Defendant
CIVIL ACTION - EQUITY
No. 01-6062
PLAINTIFF'S REPLY AND ANSWER TO DEFENDANT'S MOTION FOR
RECONSIDERATION OF THE ORDER DATED APRIL 15, 2003
AND NOW, this 28th day of April, 2003, comes the Plaintiff, David W. Hall, by and through
his attorneys, Hanft & Knight, P.C., files the following Reply and Answer to Defendant's Motion
for Reconsideration of the Order Dated April 15, 2003:
1. Admitted.
2. Admitted.
3. Admitted in part, denied in part. It is admitted that Plaintiff failed to serve answers to
Defendant's July 26, 2002, requests for admissions. With respect to Defendant's averment that
Plaintiff has not provided answers "to date," the Court's Order of December 5, 2002, obviated both
Plaintiff's need and ability to do so.
4. Admitted in part, denied in part. It is admitted that Plaintiffwas deemed by this Court to
have admitted, pursuant to Pa.R.C.P. 4014(b), the specific matters addressed in Defendant's July 26,
2002, requests for admissions. All other inferences of Defendant's averment are denied.
5. Denied. Plaintiff was deemed by this Court to have admitted the specific matters
addressed in Defendant's July 26, 2003, requests for admissions by Order dated December 5, 2002.
6. Denied. As stated. Plaintiff's admissions were made pursuant to Pa.R.C.P. 4014.
7. Admitted.
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted.
13. Denied. The averments of Paragraph 13 are a conclusion of law to which no response
is required. Ifa more specific response is deemed appropriate, and to indulge in opposing counsel's
semantical exercise, Plaintiff's admissions were made pursuant to Pa.R.C.P. 4014. Further, it is
pointed out that Paragraph 13 of Defendant's Motion is inconsistent with Paragraph 6.
14. Admitted.
15. Admitted.
16. Admitted.
17. Admitted.
18. Admitted
19. Admitted
20. Denied as stated. It is admitted that this Court, by Order dated April 15, 2003, granted
Plaintiff's Motion for Withdrawal of Admissions. Plaintiff believes, and therefor avers, that the
Court ruled on the merits of Defendant's Motion.
21. Denied. The averment of Paragraph 21 is a conclusion of law to which no response is
required.
22. Denied. The averment of Paragraph 22 is a conclusion of law to which no response is
required.
23. Denied. The averments of Paragraph 23 are conclusions of law to which no response
is required.
24. Admitted.
25. Admitted.
26. Denied. The averments of Paragraph 26 are conclusions of law to which no response
is required.
27. Denied. The averments of Paragraph 27 are conclusions of law to which no response
is required.
28. Denied. The averments of Paragraph 28 are conclusions of law to which no response
is required.
29. Denied. The averment of Paragraph 29 is a conclusion of law to which no response is
required. Furthermore, the averment of Paragraph 29 expressly contradicts those of Paragraphs 6,
27, and 28.
30. Denied. Pursuant to Pa.R.C.P. 4014(d), this Court may "permit withdrawal or
amendment [of admissions] when the presentation of the merits of the action will be subserved
thereby and the party who obtained the admission fails to satisfy the court that withdrawal or
amendment will prejudice him or her in maintaining the action or defense on the merits."
31. Denied. Plaintiff properly relied upon Pa.R.C.P. 4014(d) to permit resolution of this
matter on the merits. As the contents of Defendant's Request for Admissions relate to essential
issues and material facts in dispute in Defendant's counterclaim,, the merits and substance of that
counterclaim could only be preserved by permitting Plaintiff to withdraw his admissions.
32. Denied. The averments of Paragraph 32 are premised on the assumption that Paragraph
31 is correct. Plaintiff's reliance on Pa.R.C.P. 4014(d) was not "a disguised motion for
reconsideration," and hence, Plaintiff was not required to "set forth any new law or facts."
Denied as stated. Pa.R.C.P. 4014(d) provides in part that, "the court may permit
or amendment when the presentation of the merits of the action will be subserved
33.
withdrawal
thereby."
34.
Denied as stated. Pa.R.C.P. 4014(d) provides in part that, "the court may permit
withdrawal or amendment when.., the party who obtained the admission fails to satisfy the court
that withdrawal or amendment will prejudice him or her in maintaining the action or defense on the
merits."
35. Denied. The averments of Paragraph 35 are conclusions of law to which no response
is required.
36. Denied as stated. The discovery rules speak for themselves.
37. Denied. Plaintiff's Motion was filed pursuant to the plain meaning ofPa. R.C.P. 4014(d).
38. Denied. By virtue of this Court's Order permitting Plaintiff to withdraw his admission,
the Defendant is now compelled to prosecute his counterclaim on the merits. This does not
constitute the suffering of severe prejudice by Defendant.
39. Denied. As stated, by virtue of this Court's Order permitting Plaintiff to withdraw his
admission, the Defendant is now compelled to prosecute his coun.terclaim on the merits. This does
not constitute the suffering of severe prejudice by Defendant.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order
denying Defendant's Motion for Reconsideration of the Order ]Dated April 15, 2003.
Respectfully submitted,
HANFT & KNIGHT, P.C.
Michae~l j. '~}squ. e~~/¢
Attorney I.D. No. 57976
19 Brookwood Avenue, Suite 106
Carlisle, Pennsylvania 17013
(717) 249-5373
Attorney for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, this 25th day of April, 2003, I, Michael J. Hanft, Esquire, hereby certify that I have
this day served the following persons with a copy of the foregoing document, by hand delivery and by fn-st
class, United States Mail, postage pre-paid, addressed as follows:
Albert N. Peterlin, Esquire
GATES, HALBRUNER & HATCH, P.C.
1013 Mumma Road, Suite 100
Lemoyne, Pennsylvania 17043
HANFT & Ird'qlGHT, P.C.
~lichael J. Hanft, Esqfiire
Attorney ID No. 57976
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
(717) 249-5373
Attorney for Plaintiff
DAVID W. HALL, :
Plaintiff :
:
vs. : 01-6062 CIVIL
:
ERNEST A. CLAWSER, II, :
Defendant : CIVIL ACTION - EQUITY
AND NOW, this
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
MOTION FOR RECONSIDERATION
ORDER
day of April, 2003, our order of April 15, 2003, is amended
to provide that it is entered without prejudice to the defendant/counterclaimant, to request a
continuance of the hearing set in this matter for the purpose of engaging in discovery.
BY THE COURT,
ichael J. Hanfi, Esquire
For the Plaintiff/Counterclaim Defendant
dlbert N. Peterlin, Esquire
For the Defendant/Counterclaimant
:rim
IN THE COURT OF COMMON PiLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Plaintiff,
V.
ERNEST A. CLAWSER, HI,
Defendant
CIVIL ACTION - EQUITY
No.: 01-6062
MOTION FOR CONTINUANCE
The Defendant, Ernest A. Clawser, III ("Clawser"), by and through his attorneys, Gates,
Halbruner & Hatch, P.C., hereby moves for a continuance of the: trial currently scheduled for
June 9, 2003 in order to engage in discovery.
Opposing Counsel concurs with Defendant's request for a continuance in order to engage
in discovery.
WHEREFORE, Defendant, Ernest A. Clawser, III respectfully requests that this Court
continue the trial of Defendant's counterclaim until such time sufficient to permit the parties to
this action to engage in discovery:
Respectfully submitted,
DATE: May 20, 2003
GATES, HALBRUNER & HATCH, P.C.
Albert N. Peterlin, l~sq~ir~e~ ~'~/~ / [
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendan0
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a tree ;and correct copy of the foregoing
Motion for Continuance, has been served upon the following cc,unsel of record by first class
mail, postage prepaid, addressed as follows:
Michael J. Hanfl, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
DATED: May 20, 2003
GATES, HALBRUNER & HATCH, P.C.
Albert N. Peterlin, Es~luire
Attorney for the Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL, :
:
Plaintiff, :
ERNEST A. CLAWSER, III, :
:
Defendant. :
CIVIL ACTION - EQUITY
No.: 01-6062
ORDER
n~o~ow,~h~ ~ ~a~o~
,2003, upon consideration
of Defendant's Motion for Continuance, it is hereby ORDERED and DECREED that said motion
is GRANTED and the trial shall be continued until ~~/'c.; /O , 2003~ ~ Q'' ~
BY THE COURT:
1~ ~. HESS, J.
DAVID W. HALL, :
Plaintiff :
:
vs. : 01-6062 CIVIL
:
ERNEST A. CLAWSER, II, :
Defendant ' CIVIL ACTION - EQUITY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: MOTION FOR CONTINUANCE
ORDER
AND NOW, this '2 ¢ day of June, 2003, because of a conflict in the judicial
calendar, hearing in the above captioned matter set for October 10, 2003, is rescheduled to
Thursday, October 9, 2003, at 9:30 a.m. in Courtroom Number 4, Cumberland County
Courthouse, Carlisle, PA.
BY THE COURT,
Michael J. Hang, Esquire
For the Plaintiff/Counterclaim Defendant
Albert N. Peterlin, Esquire
For the Defendant/Counterclaimant
:rim
Ke~. Hess, J.
DAVID V~. HALL,
plaintiff,
ERNEST A. CLAWSER,
coURT OF CONINION pLEAS OF
"file PENNSYLVANIA
C~VlBERLAND COUNTY,
: CIVIL ACTION ' EQUITY
: No.: 01-6062
Defendant.
T
"or "Clawser"), by and through his
Defendant, Ernest A. Clawser, III (,,Defendant
attorneys, Gates, Halbrnner & Hatch, P.C., makes the following motion for summ~ judgment
pursuant to Pa.R.C.P. 1035.2 and 4014:
1. The pleadings are dosed, discovery requests
2. On June 6, 2003, Defendant served plaintiff with certain
including, but not limited to, a request for admissions pursuant to Pa.R.C .P. 4001 (d) and 4014(a).
· . Exhibit "A" and
A true and correct copy of the Request for Admisstons ts attached hereto as
incorporated herein by reference as though set forth in full. serve answers to
3. Pursuant to pa.R.C.P. 4014(b), plaintiff was required to
2003.
Defendant's request for admissions on or before July 7,
4. plaintiff failed to serve Defendant with any answers to Defendant's request for
admissions and has not done so to date.
5. As a result, Plaintiff was deemed to have admitted all of the above-mentioned
request for admissions pursuant to Pa.R.C.P. 4014(b).
6. As of July 8, 2003, pursuant to Pa.R.C.P. 4014(d), the admissions were
deemed to be conclusively established.
H. T D F T' R
7. Pa.R.C.P. 4014(a) allows a party to serve a request for admissions of fact upon
any other party.
8. Pa.R.C.P. 4014(b) requires the responding patty to serve an answer on the
propounding party within thirty days of service of the requests or the requests are deemed
admitted.
" " le"
9. Pa.R.C.P. 4014(d) provides that any matter admitted under tlns m is
conclusively established unless the court on motion permits withdrawal or amendment of the
admission.
10. PlaintifFs admissions were admitted under Pa.R.C.P. 4014(b), as of the expiration
of the thirty day period subsequent to Defendant's service of the discovery requests on Plaintiff.
11. PlaintitT s admissions were conclusively established "under" Pa.R.C.P. 4014(d),
as of the expiration of the thirty day period subsequent to Defendant's service of the discovery
requests on plaintiff.
12. Pursuant to paragraphs 11 and 12 of the Request for Admissions, Plaintiff
admitted to instituting this action in bad faith.
13. There is no genuine issue of any material fact as to a necessary element of the
2
cause of action or defense.
WHEREFORE, Defendant, Ernest A. Clawser, m, respectfully requests that the Court
enter an Order granting Defendant's Motion for Snmmaty Judgment as to Defendant's
Counterclaim: plus costs, attorney fees and such other relief as is just.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
Attorney ED No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATED: July 16, 2003
3
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, h~reby certify that a tree and correct copy of the foregoing
Defendant's Motion for Sunmm~ Judgement as to Defendant's Counterclaim~ has been served
upon the following counsel of record by first class mail, postage prepaid, addressed as follows:
Michael J. Hanff, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106.
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
Alb'~rt N. 'Peterlin, Esquire
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATE: July 16, 2003
IN THE COURT OF cOMMON PLEAS OF
CUMBERLAND cOUNTY, PENNSYLVANIA
DAVID W. HALL,
V.
ERNEST A. CLAWSER, III,
Defendant.
CIVIL ACTION - EQUITY
No.: 01-6062
pRAECIPE TO LIST CASE FOR ORAL ARGUMENT
TO THE PROTHONOTARY:
Please list the within matter for the next Argument Court.
1. The matter to be argued is the Defendant's Motion for Summary Judgment as t°
Defendant's Counterclaim.
2. Names and addresses of all attorneys who will argue the case:
(a) Plaintiff(s): Michael J. Hanft, Esquire, Hanft & Knight, P.C., 19 Brookwood
Avenue, Suite 106, Carlisle, Pennsylvania 17013-9142
(b) Defendant(s): Albert N. Peterlin, Esquire, Gates, Halbnmer & Hatch, P.C., 1013
Mumma Road, Suite 100, Lemoyne, Pennsylvania 17043.
Within two (2) days, I will notify all parties that this case has been listed for
Argument Court Date: August 27, 2003
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
~bert N. Peterlfn, ~squire ~
Attorney I.D. #84180
1013 Mununa Roa~, Suite 100
Lemo~ne, PA 17043
(717) 731-~600
(Attorneys for Defendant)
Dated: August 1, 2003
CERTIFICATE OF SERVICE
I, Albert N. Peter[in, Esquire, hereby certify that a tree and correct copy of the foregoing
Defenrlant's Motion for Summary Judgement as to Defenrlant's Counterlc!sim, has been served
upon the following counsel of record by first class mail, postage prepaid, addressed as follows:
Michael J. Hanft, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATE: August 1, 2003
IN Tl~E COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DAVID W. HALL,
Pla'mtiff,
VS.
ERNEST A. CLAWSER, HI,
Defendant.
CIVIL ACTION - EQUITY
No.: 01-6062
]PRAECIPE TO WITHDRAW DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
AS TO DEFENDANT'S COUNTERCLAIM
TO THE PROTHONOTARY:
Please withdraw the Defendant's Motion for Summary Judgment as to Defendant's
Counterclaim.
Respectfully submitted,
GATES, HALBRUNER & HATCH, P.C.
~dbe~rt N. PeYerli~,~e~ v~- , ~
Attorney ID No. 84180
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendan0
DATED: August 27, 2003
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing
Praecipe to Withdraw Defendant's Motion for Summary Judgement as to Defendant's
Counterclaim, has been served upon the following counsel of record by first class marl, postage
prepaid, addressed as follows:
Michael J. Hant~, Esquire
HANFT & KNIGHT, P.C.
19 Brookwood Avenue, Suite 106
Carlisle, PA 17013-9142
GATES, HALBRUNER & HATCH, P.C.
~er~l~. Pet~rli~, E~q~e~' ~/~/VI
Attorney ID No. 84180 ~
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
(Attorneys for Defendant)
DATE: August 27, 2003
DICKINSON COLLEGE, :
Plaintiff :
V.
NOCUTS, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COLrNTY, PENNSYLVANIA
CIVIL ACTION - LAW'
NO. 01-6062 CIVIL TE]PdVI
IN RE: ADDITIONAL DEFENDANT'S PRELIMINARY
OBJECTIONS TO DEFENDANT'S COMPLAINT TO
JOIN ADDITIONAL DEFENDANT
BEFORE HOFFER, P.J., HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 28th day of August, 2003, upon consideration of the preliminary
objections filed by the Additional Defendant to the Defi:ndant's complaint to join the
Additional Defendant, the complaint is stricken for lack of' compliance with Pennsylvania
Rule of Civil Procedure 2253.
Howard D. Kauffman, Esq.
100 Pine Street
Suite 260
Harrisburg, PA 17101
Attorney for Plaintiff
BY THE COURT,
zjO!9. 0..;:, :_., ,~
Rodger L. Puz, Esq.
DICKIE, McCAMEY &
CHILCOTE, P.C.
Firm #067
Two PPG Place
Suite 400
Pittsburgh, PA 15222-5402
Attorney for Defendant
John R. Ninosky, Esq.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Additional Defendant
:rc
DAVID W. HALL,
Plaintiff
VS.
ERNEST A. CLAWSER, II,
Defendant
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-6062 CIVIL
CIVIL ACTION- EQUITY
IN RE: MOTION FOR CONTINUANCE
ORDER
AND NOW, this / a-' day of December, 2003, upon review of the transcript of the
hearing in this case, said transcript reflecting that the plaintiffpurchased property other than the
land at issue in July of 2001 and it appearing that this case was initiated in October of 2001,
because the court wishes to inquire of the plaintiffwhether he misspoke concerning the year of
the purchase of his present home and because the court may have improvidently denied the
request of the defendant to reopen the record, the record of these proceedings is herewith
REOPENED and continued hearing set for Thursday, February 5, 2004, at 10:30 a.m. in
Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA.
BY THE COURT,
J4ichael J. Hanfi, Esquire
For the Plaintiff/Counterclaim Defendant
~ert N. Peterlin, Esquire
For the Defendant/Counterclaimant
:rlm
. Hess, J.
12-Jb
DAVID W. HALL,
Plaintiff
VS.
ERNEST A. CLAWSER, II,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-6062 CIVIL
CIVIL ACTION. EQUITY
IN RE: COUNTERCLAIh_~
ORDER
AND NOW, this ~ ' day of March, 2004, the court being unable to conclude by a
preponderance of the evidence that the plaintiff filed the captioned lawsuit without a legal basis
and/or for the sole purpose of causing harassment to the defendant, on the counterclaim of the
defendant for counsel fees, we find in favor of the plaintiff.
BY THE COURT,
Michael J. Hanft, Esquire
For the Plaintiff/Counterclaim Defendant
Albert N. Peterlin, Esquire
For the Defendant/Counterclaimant
:rim