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Home My WebLink About03-3450SA UL EWING LLP Attorneys for Plaintiffi Paige Macdonald-Matthes, Esquire Jack Gaughen Realtor EP~4 Matthew M. Haar, Esquire Pa. Attorney I.D. Nos. 66266 & 85688 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 238-7675 (Ms. Macdonald-Matthes) (717) 257-7508 (Mr. Haar) JACK GAUGHEN INC., d/b/a : IN THE COURT OF COMMON PLEAS OF JACK GAUGHEN REALTOR ERA, : CUMBERLAND COUNTY, PENNSYLVANIA 3915 Market Street : Camp Hill, PA 17011 : : Plaintiff, : NO. ~- ~q5--O c~ ~ i[ : _. BENJAMIN R. STARNER and : CIVIL ACTION - LAW PAULA K. STARNER, : 380 Bouring Bridge Road : Lewisberry, PA 17339 : ; Defendants. : JURY TRIAL DEMANDED 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 OFFICES SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Tel. - 717-249-3166 980881 7/18/03 SAUL EWING LLP Paige Macdonald-Matthes, Esquire Matthew M. Haar, Esquire Pa. Attorney I.D. Nos. 66266 & 85688 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 238-7675 (Ms. Macdonald-Matthes) (717) 257-7508 (Mr. Haar) JACK GAUGHEN INC., d/b/a JACK GAUGHEN REALTOR ERA, 3915 Market Street Camp Hill, PA 17011 Plaintiff, BENJAMIN R. STARNER and PAULA K. STARNER, 380 Boring Bridge Road Lewisberry, PA 17339 Attorneys for Plaintiffi Jack Gaughen Realtor ERA Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT Plaintiff Jack Gaughen Inc. d/b/a Jack Gaughcn Realtor ERA, by and through its undersigned counsel, hereby brings this Complaint against defendants Benjamin and Paula Stamer and avers as follows: 1. Plaintiff Jack Gaughcn Inc. d/b/a Jack Gaughen Realtor ERA ("Jack Gaughen") is a Pennsylvania corporation with offices at 3915 Market Street, Camp Hill, Pennsylvania, 17011. 98055 [ 7/18/03 2. Defendants Benjamin R. Stamer and Paula K. Stamer (the "Stamers"), husband and wife, are adult individuals residing at 380 Boring Bridge Road, Lewisberry, Pennsylvania, 17339. 3. On or about October 2, 2001, the Stamers entered into an Exclusive Listing Agreement ("Listing Agreement") with Jack Gaughen for two properties known as 374 and 367 Georgetown Road, Gardners, Cumberland County, Pennsylvania (the "Property"). The Listing Agreement had an expiration date of September 30, 2002. A copy of the Listing Agreement is attached as Exhibit A and incorporated herein by reference. 4. The Listing Agreement provided that Seller was responsible for paying a Broker's Fee of six percent (6%) of the sale price. See Listing Agreement ¶ 4. 5. On or about March 28, 2002, Jack Gaughen and the Stamers entered into a written Conditional Release From Exclusive Listing Agreement (the "Conditional Release") to accelerate the expiration date of the Listing Agreement to March 30, 2002. A copy of the Conditional Release is attached hereto as Exhibit B and incorporated herein by reference. 6. The Conditional Release required the Starners to pay Jack Gaughen a commission of six percent (6%) of the sale price if the Property was sold to any party that was introduced to the Property during the term of the Listing Agreement. 7. The Conditional Release specifically reserved Scott and Tamara Einerbrink (the "Einerbrinks") as parties who were introduced to the Property during the term of the Listing Agreement. The Starners and the Einerbrinks had a written agreement for the purchase and sale of the Property dated December 16, 2001. A copy of the December 16, 2001 agreement is attached hereto as Exhibit C and incorporated herein by reference. 8. On or about September 6, 2002, the Einerbrinks purchased the Property from the Starners for $345,000. 9. The Starners were and continue to be obligated to pay to Jack Ganghen a commission of $20,700. 10. Despite their contractual obligation to do so, and despite repeated requests by Jack Gaughen, the Stamers have failed to pay the commission that they owe to Jack Gaughen. COUNT I Breach of Contract 11. Jack Ganghen's averments in paragraphs 1 to i0 are incorporated herein by reference as if set forth at length. 12. A contract exists between Jack Ganghen and the Stamers, specifically the Conditional Release. 13. Based upon the Conditional Release, the Stamers are obligated to pay $20,700 to Jack Ganghen based upon the sale by the Stamers of the Property to the Einerbrinks for a total of $345,000. 14. Jack Gaughen has demanded that the Stamers pay the amount owed to Jack Gaughen, but the Stamers have refused and continue to refuse to pay the amount owed to Jack Gaughen. WHEREFORE, plaintiff Jack Gaughen Inc., d/b/a Jack Gaughen Realtor ERA respectfully requests that this Court enter judgment for it and against defendants Benjamin and Paula Stamer in the amount of $20,700, as well as interest and costs and such further relief as this Court deems just and equitable. Respectfully submitted, ~~squire Supreme Court ID #66266 Matthew M. Haar, Esquire Supreme Court ID #85688 SAUL EWING LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 238-7675 (Ms. Macdonald-Matthes) (717) 257-7508 (Mr. Haar) Attorneys for Plaintiff, Jack Gaughen Realtor, ERA Date: July 18, 2003 VERIFICATION I, Paul C_nmd~, hereby varify tl~ I am aulhor/z~d ~o make th/a vetificagon on behal£of laak G~a,~h_ en lac., d/b/a Sa~k C~,,~h~a R~altar ~RA, ~hal I have read the b~t~t of my knowl~, inflyi-mali0n and belial. Im~a ~s ~tp~ Date. d: July ~ , 2003 LISTING CONTILiCT t EXCLUSIVE RIGIIT '1'¢) SELL REAL PROI~ERTY BROKER (Company) JACK GAUGllEN REALTC)]( liRA LICENSEE(S) /~//L ~u~.~ ~ t~ Municipality (q~, b~rough, Iownsldl~ ~/~ ~t~ ~ . - / Identification Number (For exam ~le,~lx klenUfleallml m~,,la~r; mrc~l number; deed b~ok, page, recording dale) - STARTING AND ENDING ~A'I'ES OF LISTING CONTI{ACT (also called "Term') , A. NO Association of REALTORS~ has scl or recoul,le,ded 111o term of this conffact. By law, thc ]englh or tenn ora listing contract may not exceed one year. Seller ami Broker have discussed and agreed upon ibc lenglh or'le~ of this contract. B.Starting Date: This Co,lract starts whell s}gllet[ by SeJ]gr and Broker, mi[ess otherwise stated here: 3. PURPOSE OF'FIllS CONTRACT Seller is hiring Brnkcl Io market I'mpeuy ami to find a Inlycr. Seller will refer all offers and inquiries lo Broker. Seller aUmvs Broker Io ilSO i,'l,t and/ar eleclm,ic advertisl,g. Broker is acling as Seller Broker _/~./_? of/from any money paid by Ilia govetmnenL 12. SETI~LEMENT & POSSESSION . ' A. Preferred Settlement Date: '7"t~/~ ~ B. Seller will give possession of Ibc Properly to Buyer al settlement or on C. (1) If the Properly, or any part of il, is rented, Seller will give any lenses lo Broker before signing tbis ConlracL (2) If any leases are oral, Seller will provide a wrllletl sumnlary of Ibe lerms, including amount of renh ending date, and Tenant's responsibilities. (3) Seller will not enter into or re.ew tiny let~se durhlg lite lertll of ibis Comract except as follows: 1.3. TITLE A, Atsett~ement~Se~erw~givefu~righ~s~f~wnersh~pIfees~n~p~e)~abt~yerexceptasfoI~ws: (1) Mineral Righls Agree~nems (2) Other B. Seller bas: [] Yes El No Address Phone i Acck 0 Amount of balance $ El Yes [] No , Equityloan with ACCl, fl _ A~nount of balance $ leaden Type . 14. MULTIPLE LISTING SERVICE (IvlLS) (Cmnplele If Ih.kef is a member of an MLS) [] yes .~ ~o 16. SIGNS & KE~S Seller Il]lows (wbere pemlilled):. ~Yes ~ No Sale Sign .~ Yes ~ No Sold Sign ~ Yes ~ No 17. ITEMS INCLUDED IN TIlE PEICIg OFTIIE PltOIq~l[TY blinds; built-in air condiHoncrs', built-Jrt appliances, nmi lhe range/oven. Also incl~led: B. Items rented by the Seller 19. SELLER WILL REVEAL DEFECTS & ENVIRONMENTAl, IIAZAIIDS A. Seller (b~chtding Sellers exempt from Ibc Real Estate Seller's Dlsclosm'e Ac0 will disclose all k~lown material defects and/or , environmental bazards on a separate disclosure s~flleltlenl. A malerbd dui'ecl is a problem ar condition that: "(I) Seller will not lmld Broker or L[censee mspm~slble ln any wny; 21~ DEPOSI~ MONEY A: ' Broker, or any person Seller and file buyer mmm Ill IIle A gl'eelllelll of Sale, will keep all deposit momc~ prod by or for the buyer in an escrow account. If held by lhokek lifts escrow accOllll[ will be held as lequired by real estate licensing laws and regula- Pennsylvania). 23. TRANSFEE OFTIIIS CONTRACT (I) Broker stops doing business, OR " D. Associalion Fees $ Incblde', SELLI~R Name (pHnl)/" ,c~'--,. ' $S# / I., {o "51~ - 7 ~'~ ~ Mailing Add~ess _ Phfii~e gs _-- , FAX # , // SEL? Na ne pti t) Mailillg Address Phone #s FAX 0 SELLER DATE Name (prin0 ..... SS# Mailing Address nROKER {Company Name) 'J~CK GAUGlqEN gEAfldro~Q~.lil~C~ · ~' :~: LISTING CONTRACt EXCLUSIVE RIGIIT TO SELL REAL PROPERTY BROKER (Company) JACK GAUGHEN KEALTOILERA LICENS~(S) P,q bt/-- Municipality (city, borough, to,,vns{llp) ,D/c./e *,./Zs ~,4 . "' County C/.,/~,t~r-~..~ . ScboolDlsldct Zoning and Pi'cecal Usa /'~.¢r.,t ldenflficatiolLNumbar (For exaar piti, lax ldcntlltcabrou nlunb~r; Peri:el number; deed book, page, recording dale) __ 2. STARTING .inn/D .ENDING DATES OF LISTING COWI'RACT (also celled "Term") A. No Assentation of REALTORS® Ires set or reconlnlelnled lbo renu of Ihls coaL. act. By law, Ibc length or to.sm of a lisLing conlract my not exceed oeo year. Seller and Broker have discussed and agreed upon the length or term of Slarting Date: Tids Contract starts wben signed by Seller and Bro~r, unless oglenvise staied here:___ B. Ending Date: Tiffs Contract end ell ..,~]AT'f~m-,t~-,..~ .~, ~./ O~70 ~ C. 3. pURPOSE OF THIS CONTDACT Seller Is lilting Broker lo market Properly and to find a buyer. Seller will refer al/ offers and inquiries to Broker. Seller allows Broker In ese pthd and/or olcelronic adverllslng. Broker is analog as Seller Agent, as described in tho Consumer Notice. 4. BROIO~R'S FEE No AssoolatJan of REALTORS® ltas set or geconunended tlm Broker s Fee. Broker and Seller have negotiated the fo~ tlmt Seller will pay Broker. The Broker's Ilea Is ~, ~70 of/from the sale poco and paid by Seller. Seller will pay Broker a'lransacll0n fee o f..S.l.t~,l aetlleule,I./~.3 ,,~ ~ 5. COOPERATION WITH OTHER BROKEIIS Licensee blls explahled Broger'~cmhpany policies about cooperating other brokers. Broker and Seller agree l/uti Broker will pay Broker's Fcc: A. A fcc to another broker who represanls ll~e Seller (S UllAGENT}. EINo ~12Yes IfYes, amoant: ~ or/from the sale price. B. A fee to another broker who represents u buyer (DUYEB.'S AGENT}. A Buyer's Agent, cyan If compensated by Broker or Seller, will represani the Inieresll of Ilia hayer. UNo ~Yes ffYes, amount: "t of/from Ihe salt price. C. A f.ee ~ an~her brni?r who docs n~ represant el~tier the Soller or a bnyer (TRANSACTI~N L~ENSEE~ r3No ' ~lYes If Yes amount: '"f of/from Ihe sale price. g. PAYMENt'OF BROKER'S FEE A. Seller must pay Broker's Fee If Prol~erty~ or any ownersldp h~erest In It, Is soht or exclmnged during the langih D. Seller will pay Broker's Fee if negotlalloos Ibat ara pepding al the Bndhlg Dale of tills Conlract re;salt in a sale. C. Seller will pay Broker's Fcc after the Ending Date of l/ds Canlract IF: (1) A sole occurs wiflthL~ days oflhe Ending Date, AND (2) TiI~ buyer was shown or negotiated to bay file Propalty during Ihe Icrol of this contract. Seller wl/I not owe Braker's Fee It' the Property is Ilsled nudes ao "exaloslve right to sell contract" with another broker at the time of the sale. 7. BROKER'S FEE I~ SAr,E DOES NOT OCCUlt A. Seller wgl pay Broker's Fan If a ready, wright, and able buyer Is flared by Brohcr or hy anyone, h~cluding Seller. · accepted by Seller, B. ~f ~e Pr~P.e~-y ~r any part ~f ~t ~s lak¢n by any g~wreu~oI for publi¢ u~ (Eminen~ D~n~a~n)~ Se~ler wi~ pay Broker .~_~offfrom any money paid by tim govonUllanl. C. ~fa buyer~slgns an agre~mant ~f sole iheu re~ses Io in~y lh~ Proper~y' m. ~f a buyer is unab~e t~ buy it bceause of falllng to do all lite fltin~s required of the boyer In ibc agrcemant or sole, Seller will pay Broker: (I) ,KZ, '/~ 'olTfrom buyer's deposit monies, OR (2) the Brniter's Fee in Paragraph 4, whicbover Is less, 8, DUAL AGENCY Seller agrees flint Broker may also ri~presenl tile bayer(s) Iff lhe [ ropeHy. Broker is a DUAL AGENT v~ben representing both Seller and the buyer in lbo sale ora Inoperly. Designated Agency: ~l Not Applicable. ~J~ Applicable, Broker, Ute Dual Ageol, daslgu[ItO licensees to the inlorests o£ Sellerand Ilia noly buyer. Licensee (idontllied above) Is Ilia Delllglt nlell ^[gilt, wba will acl exolusivoly es l/~e Seller Agent, If Property is introduced to Iho buyer by a licettsee in lha Canq~aoy who is itel relm;senIlng Ibc bayer, Ihen Ihat licensee is authorized to ',vor}c on bolmlf of Seller, ffLlconaeo Is also rite Bayer AgenL then LJceance Js a DUAL AGENT. 9, BROKgR'S SERVIC.E TO BUYER Broker may provlda sen,lees Io a bayer for ,,vhicb Broker may accept a fee, Such sarvtces may include, but are not llmtted to, daed/doanoleu prepare ion; ordering cerlifical/ons required for closing; financial disclose to Seller if any fees are to be paid by Buyer, Any Bayer who boys throllgb a Jack Clanghen Realtor ERA licensee, regardless of the business rolatlonsldp, wtll pay Broker a $ I U0 Trausnction Fen at Settlement. 10. OTH~R PROPERTI~8 Seller agrees dar Broker ma9 tint other properlles res role and that Broker may show pmperlice to prospective buyers. 11, CONFLICT O1~' INTgREST A conflict of Interest Is when B~pker or Lice.see has a fimmcial or personal in eros where Broker or Ltcnnsce cannot put Seller's blterosts before any olher, l£1heB.}ker, oranyofBrokor'ssolespeople, basaco!tfllct of interest, Broker.will notify Seller In a thn¢ly manner. Lnitlolsh/-7,~'~ l'age I nf 3 llroker/Lieensee hLil/als Seller · / 12; S.ETT£EMENT & POSSESSION 'A.' Preferred Settlement Date: 13. TITLE (2) Other B. Seller bas: [] Yes [] No Morlgage widl Address Phone " Acer· g Amount of balance $ [] Yes [] No . Equity loan with' Address Phone Acct. # Amount of balance $ [] Yes [] No Seller atdhorizes Broker Io receive nlortgage payoff and/or equity loan payoff information from the lender. [] Yes [] No Past Due'Faxes Anlmull owed $__ [] Yes [] No Judgments AtllOUnt $ Type B. S~ll~-'wiJ~,011ow publishhlg of Ihe sale Inice after Seller nccepls au Agteemeul of Sale. [] Yes ,~ No 16. SIGNS & KEYS Seller allows (where permiHed}: fttYes VINo SaleSign ~v~Yes ~ No StfldSign Yes ~ No Keyin Office Yes ~ No Lock 17, ITEMS INCLUDED IN TIlE PEICE OFTIIE PBOI'EIH'Y 18. A. Included in tile sale and purchase pr. icc arc ali cxisllllg Ilems pemmneudy installed in 1h¢ Property, free of liens, including plumbing; heating; lighdng fixtures (including cMndcllora and ceiling fans); wa~er treatment systems; pool and spa equipment; garage door openers and transmitters; television aldelltlaS; shrubbery, planllngs, and unpotted trees, any remaining heating and · cooking fuels stored on the Property at the lime of settlelllenl; wall to wail ¢nq~edng; window covexina hardwa_r,e, shades, and blinds; buiJd-in a!r conditioner.y built-hi appliances, al~d the range[oven. Also inchlded: B. D See attached sheet for additional Items hlclmled h~ file sale. ' ' ~ J . ITEMS NOT INCLUDED IN TIlE PRICE OF TIlE PIIOPEIITY The following ilems are not included in Ibc purclmse and p/Ice of Ihe IhopeHy: B. Items rented by thc Seller _ C. El See attached sheet for additional items not [ucluded In Ihe sale. 19. SELLER WILL REVEAL DEFECTS & ENVIRONMlgNTAI, llAZAllltS · (I) is a possible danger to those living on the Properly, or (2) has a significant, adverse effect on d~e value of fl~ Property. 7'(I) Seller will no~ hold Broker or Licensee responsible hi any way; 20. IF PROPERTY WAS BUILT BEFORE 1978 The Reshlenthd I.ead-Based Paint l lazard Reduction Act says dmt any Seller of theprapefiy, wherethelead-basedpaimamllead-based mlnllmzardsare the coudidon of hepa n ed surfaces, andanyoher nfor- give a buyer 10 days (unless Seller and the buyer agree Ia a different period of time) fi'om the time un Agreement of Sale is signed the buyer must inform the Seller in writing of the clmlce. Tim Act does not reqtdre Ihe Seller to inspect f6r lead paint hazards or to 2~. DEPOSIT MONEY. ¢,. Broker, or any person Seller anti Ibc buyer naule in the Agreement el gale, will keep all'deposit moqies paid by or fo? the buyer in an escrow account, if beld by Brokm; lids escrow ILCCI)IIII( will be beld as required by real estale licensing laws and regula- tions. Seller agrees (hat the person keeldng the deposil iil[irlleS may wait to deposit any uncasbed check that is received as deposit money undl Seller bas accepted mi of fen B.If geller joins Broker or Licensee iii Ii bllvstdl for lbo leltnn or (lei]esi( umltics, Seller will pay Broker's and Licensee's 22. RECOVERY FUND Pennsylvania bas a Real Estate Recovery Fmld 0be Fm~d) to repay any persol,, who bas received a final For complete details about file Fund, call {717) 783-3658, or (8{11'1) 822-2113 (within Pennsylvania) and (717) 783-4854 (outside Pennsylvania). 23. TRANSFER OFTIIIS CONTEACT (I) Broker stops doing business, OR ., (2) Broker forms a new real eshll~ b.siness, OR 24. NOTICE TO PERSONS OFFEBING TO SELL OR EICNT IIOUSING IN PENNSYLVANIA Federal and state laws make it illegal for Seller, Broker, or anyone lo use RACE, CGLOR, RELIOION or I1ELIGIOUg CREED. SEX, DISABILITY (physical or mental), FAMILIAL STATUS (cbikh'en under 18 years tff age), AGE (40 or older), NATIONAL ORIGIN, USE OR HANDL- ING/TRAINING OF SUPPORT OR GUIDE ANIMALS, or Ibc PACT OP RELATIONSHIP O1~. ASSOCIATION TO AN INDi- VIDUAL KNOWN TO ,'lAVE A DISABILITY as reasons h}r rel'asb~g lo sell, show, or rent properties, loan money, or set deposit 25. NO OTIIER CONTRACTS Seller will not enter hire mmlller lisling agreemenl witb another broker Ibat b~glns belbre the Ending Date of this Contrael. 26. ADDITIONAL OFFERS/ ONCE SELI~I~R ENTERS IN'I'll AN AGRI!EMENT OF SALE, BROKER IS NOT REQUIRED TO 28. CIIANGES TO Tills CONTEACT All cbanges Io Ibis coll[lacl iiins[ be in wrili.g and signed by Broker slid Seller. 29. SPECIAL INSTRUCTIONS The Office of Attorney Oenmal bas sol pre-apliroved any special conditions or additional lerms · -~ ADDI'I'IONAL!NI~tIBblA'rlI)N (GI'TIONAI,) 30. TAXES~ UTILITIES, & ASSOCIATION FEES .-' E. Giber 31. BUYER FINANCING Seller will accept Ibc following anangemenls for bayer to pay for lite Property: [] Cash [] Yes [] No Conventional [] Yes [] No FI IA [] Yes []No VA Lq Ye~ Fl Nil ~1 Seller's help Io buyer (if any): sign this Contrael. NOTICE BEFORESI(ININO: IFSELLER IIAS LEGALQUESTIONS, SELLI~Ii ISABVISEDTOCONSULTANATTORNEY. Name (print) . SSg / b 6 Mailing Address Phone Os //~ FAX g E-Mail Name(print) J ssg~ ~/ Mailing Address Phone #s PAX It .......... E-Mail SELLER Name (prim) Mailing Address . Phone tis FAX # / E-Mail BROKER (Conqmny Name) ~ JACK QAUGI-II~.~N.,RE~'L~RA ACCEPTED BY ~' ~/ Phone Os '~/ FAX # ] '~ E-Mail DATE SS# ERA Jack Gaughen Realtor ERA Conditional Release From Exclusive Listing The undersigned Owner(s) and Jack Gaugben Reallm' ERA hereinafter called Broker, having {~xecuted a listing agreement dated October 2, 2001, fin' the listing o1' Owners property described as 367 and 374 Georgetown Rd Gardners PA and Owner desiring to terminate tbe same and to withdraw the properly from the market prior to the expiration o[ said listing agreement. Th~-' parties agree as follows: 1. Upon execution of this agreement by all pmties, all rights and obligations arising on account of the listing agreement are h,ereby l erminated. 2. In consideration of said listing agreeinenl by Itroker, Owner(s) agree that: A. In file event that tile property shall be sold, exchanged or leased to any of the pc{sons to whom the property was inlroduced by broker; broker's subagents or the Owner during tbe term of listing, broker shall be entitled to receive the commission set forth in said listing ngreement, whelber or not the said listing agreement would have expired tn accordance wilt~ II~ terms. The Seller(s) further agree to reimburse Jack Gaugben Realtor ERA $ N/A to cover part of the advertising and other expenses incnrred while the prnperty wns on Ihe market. '" Broe~ Withe., Scott and Tamara Einerbrink of Lewisberry. PA me hereby reserved as buyers for the above mentioned properties. Owner .--. / Date Date Owner .. ' Date ' DESIGNATED AGENT FOIl SELLEli {Ir .ppllc.hlc) DESIGNATED AGENT FOIl BUYER (if npplicablO (C) -- ~(0) ~ P*n.~lvn.la Asaoeln,l{on of REALI R~ ' .. 3. TERMS (1-00) C~Slh cashier's or certified check at llme t,r sculcmcm: TO'FAC De~s]~ paid on flccou,l{ or pumchnse Frice lo be held Seller's wrilten .pprov[I to be on or bcfor~: 13 El The filllowhlg are Ilar{ or er,ls Agreemen{ Ir cherl&t,d: WAIVER DP CONTINGICNCIES (1-00) IIEIqtlCSI".N'I'^'rlONS (1-00) . . .. 'l'l M Ir~ OF 'rill,: E$SI~.NCE.DEFAUU[' (1-0{~). WITNESs gEl.l,Ell Seller Name (prinl)'~ .' DELLINGER, INC. DBA CENTRAL STATE REAL~ ESCROW ACCOUNT TOTAL ITEMS ,~. o 0 o.oo }. ~1t~ tt 102-M ufo,',-' REALTORS* COOPERATING BROKER cOMPENSATION LI,71'I'EII 123 'SELLER .It is expressly understood a~d agreed by the partie~ hereto that: is the Listing Broker. : ' ~ O~iHi~ ~BuyerAgen~rnnsnctmn .,~t~- C ~Cc/o, .L~cen~ee/SubagentforSeller~den- LiatingB~kerwillp~yacashfeeof$ fl Ot 606 tiffed a~ve, when the fee i~ ~ceived by Listing Broker, LISTING BROKER (Conip~ny Name) ~ ff ~ ~nO~ ?V~p~. COOPERATING BROKER (Compan'/Name) C. ~- ~ 'Tfl/I (. ACCE~EO BY (' ~ ~ ~Y/-~,~ DATE P- ~- ,~c 7~ DATE I '~ ' /' t~ - O / BUYER'S AND SELLER'S ACENOWLEDGEMF. NT (}F C(}OPF, RA'I'IN¢i IIB(}EER COMPENSATION: BUYER SELLER ~[~o~, Pennsylvania Association of REA~OR~ DATE IL - /g. a~ [ DATE I)ATE ( ) FORFEITED AS LIQUIDATED DAMAOBS. 0~ RETURNED TO TI4E BUYER: ( ) OT:IER: ... AND SHALL BE DISBURSED A~ FOLLOWS: (WHEN AND TO WEOM) KNOWN ALL MEN. that wa the undersigned EUYEP,, BELLEE and AGENCIES forever discharge each other, Iheir BRO~OENT ~ffN~ '~ DATE ' '~,a-r,~ : , . (OTI'IER) ESCROW AGENCY Wl'rNESfl DATE '" SELLER -- WITNESS , DATE JACK GAUGHEN INC., d/b/a : IN THE COURT OF COMMON PLEAS OF JACK GAUGHEN REALTOR ERA, PLAINTIFF BENJAMIN R. STARNER and PAULA K. STARNER, DEFENDANTS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-3450 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the defendants, BENJAMIN R. STARNER and PAULA K. STARNER, in the above captioned case. Respectfully submitted, By: Mar~eusA/ ~ . 60 We~(Po fr~B~et Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for defendants Date: August 27, 2003 JACK GAUGHEN INC., d/b/a : IN THE COURT OF COMMON PLEAS OF JACK GAUGHEN REALTOR ERA, PLAINTIFF BENJAMIN R. STARNER and PAULA K. STARNER, DEFENDANTS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-3450 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Paige Macdonald-Matthes, Esquire Matthew M. Haar, Esquire 2 North Second Street, 7th Floor Harrisburg, PA 17101 IRWIN, McKNIGHT & HUGHES By: Marcus A. McKnight, III, Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court I.D. No.. 25476 Date: August 27, 2003 2 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-03450 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLJuND GAUGHEN JACK INC DBA JACK GAUG VS STARNER BENJA~MIN R ET AL R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT STARNER BENJAMIN R but was unable to locate Him deputized the sheriff of YORK Sheriff or Deputy Sheriff who being says, that he made a diligent search and , to wit: in his bailiwick. County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On August 13th , 2003 attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep york County 38.80 .00 75.80 08/13/2003 SAUL EWING Sworn and subscribed to before me this 2~- day of ~/~ A.D. Prothonotary __ , this office was in receipt of the So an swe?.~S~ ZL3P3 Sheriff of Cumberland County SHERIFF'S RETUP~ - OUT OF COUNTY CASE NO: 2003-03450 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GAUGHEN JACK INC DBA JACK GAUG VS STARNER BENJAMIN R ET AL R. Thomas Kline , duly sworn according to law, says, that he made and inquiry for the within named DEFENDANT $TARNER PAULA K but was unable to locate Her deputized the sheriff of YORK Sheriff or Deputy Sheriff who being a diligent search and , to wit: in his bailiwick. County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On August 13th , 2003 attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 08/13/2003 SAUL EWING Sworn and subscribed to before me this 2~ ~ day of ~ ~5 A.D. ~Prothonot ary ' ~ this office was in receipt of the So answe~.s :_ /_.~_~ R. Thomas Kline Sheriff of Cumberland County COUNTY OF~¥oRK OFFICE OF THE SHERIFF · - 28 EAST MARKET ST., YORK PA 17401 SHERIFF SERVICE PROCESS RECEIPT -,nd AFFIDAVIT OF RETURN 1. PLAINTIFF/S/ Jac~ Gaughen Ir~c d/b/a Jack C-augllen Rea~ Lot EiSA 3. DEFENDANT/S/ SERVICE CALl. (717) 771-9601 INSTRUCTIONS PLEASE TYPE ONLY LINE I THRU DO NOT DETACH ANY COPIES 2. ~OURT NUMBER 03--"3450 civil 4 /YPE OFV~.IIOR COMPLAINT BeDj~m,in R. Stmrner Notice ,~nc] C.c~t~]aJnt ~ ~nj~ R. Sta~er 6 ADDR~S~ (STREET OR RFC WITH BOX NUMBER, APT NO, ClT~ BORO, ~P., STATE AND ZiP CODE) AT 380 ~rin9 Bridge R~d Lewisite, PA 17339 NOW July 22 ,20 03 I, SHERIFF O~~NTY, PA, do hereby deputize t~ sheriJ York -- - COUNTY to execute thi~t~ return ~ordisg to law~-ThJs deputJzation being made at the request and risk of the p[aintiff. ~ ~ [~ - - SHERIFF O~UOUN~ 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST ~N EXPEDITING SERVICE: C~r 1 ~n~ ' NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any properly under within writ may leave without a watchman, in Custody of whomever is found in possession, after notifying Berson of levy or attachment, without liability on the part of such deputy or the sheriff to any pi herein for any loss, destruction, or removal of any property before sheriffis sale thereof· 9. TYPENAMEandADDRESS?fA~rORNEY/ORIGINATORandSIGNATURE,,, ~...,10' TELEPHONE NUMBERt ~ ,'~-, I 11. DATE FII "'--. SPACE BELOW FOR USE OF THE SHERIFF -- DO NOT ~ITE BELOW*THIS"LINE 18. NAME~TL~F~N~DUA~ER~ED~L~ADDRE~HERE~FN~T~H~NAB~E(R~a~i~nship~D~f~ndan~) I 19 ~teofSe~ice ~20. ~meofS( 23~~,-',Advance Costs.,, 24. i!~iiA(ii~i~~~ii~! 311 No ii~e 1~ i~Pservice Costs 25. N/F 26. Mileage 27 P°stagelt 28. Sub Total 29. Pound 30. NotarYu~~~}~t31. Surchg. 32. Tot. Costs 33 Costs Due R~_,,,~,~,~/~C~4~R, 4& Slgrtatu. r~of Foreign ~ 49. DATE County Sheriff 50 I ACKNOWLEDGE RECEJPT OF THE SHERIFFS RETURN SIGNATURE I 51. DATE RECEIVED OF AUTHORIZED ISSUING AUTHQRITY AND TITLE 1, WHITE - Issuing Authority 2. PINK - Attorney 3 CANARY - Shedffis Office 4. BLUE - Shedffis Office 2~of 2 COUNTY OF YORK OFFICE OF THE SHERIFF (717) 771-9601 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF R~,TURN 1. PLAINTIFF/S/ Jack Gaughen Inc d/b/a Jack Gaughen Realtor ERA 3. DEFENDANT/S/ Paula K. Starner ~ INSTRUG11ONS PLEASE TYPE ONLY LINE I THRU 12 DO Nor DETACH ANY COPIES 2. COURT NUMEER 03-3450 clvll 4. TYPE OF WRIT OR COMPLAINT Notice and Cc~plaint SERVE /' 5 NAME OF INDIVIDUAL, COMPAN'~ CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, A~ACHED, OR SOLD. Paula K. Sterner 6. ADDRESS (S/REET OR RFO WITH BOX NUMBER, APT NO, CI~ BORe, TWR, STATE AND ZIP CODE) AT 380 Bourin§ Bridge Road Lewisberry, PA 17339 7. INDICATE SERVICE: [~ PERSONAL O PERSON IN CHARGE X~X~DEPUTIZE~I_L_ ~[3 C RT. IL ~11ST CLASS MAiL ~ POSTED ~r OTHER NOW July 22 , 2003 I, SHERIFF O~uC~i~(~NTY, PA, do hereby deputize the sheriff of York COUNTY to execute this_.~ ~1) m_.~'return the~re..g,f-'a~rding to law. This deputization being made at the request and risk of the plaintiff. ~ ~ ~'-~,~¢.~¢~'~ 8 SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumber} ~nd OUT OF COUNTY CUMBERLAND ADVANCED FEE PAID BY SHERIFF NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss. destruction, or removal of any properly before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of A~'ORNEY / ORIGINATOR and SIGNATURE MATTHEW HAAR i l0. TELEPHONE NUMBER 11. DATE FILED 238-767.5 7-21-03 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). CUMBERLAND CO SHERIFF SPACE BELOW FOR USE OF THE SHERIFF -- DO NOT WRITE BELOW THIS LINE 13. lacknowledgereceiptofthewdt/ EJ 14. DATE RECEIVED 15. Expkatior~/HeadngDate or complaint as indicated above. R. AHR 7 - 2 4- 0 3 8 - 2 0 - 0 3 16. HOWSERVED: PERSONAL RESIDENCE(~ POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. Q I hereby certify and retam a NOT FOUND because I am unable to locate the individual, company, etc, name above· (See remarks below.) . NAME AN ITL F INDIV UAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) '~hA~r~TiNnN~D~ite ~me Miles Int. IDate Time Miles Int. IData ~me Miles Int. IData ~meIMiles/16t. IDatel~me Miles'lint 22, REMARKS: 23. Advance Costs 24. Service Costs 25, N/F 26, Mileage 27. Postage 28. SubTotal 29. Pound 30. Notary 34. Foreign County Costs 35. Advance Costa 36. Service Costs 37. Notary Cert. 38. Mileage/Posted/Not Found 39. Total Costs I 40. 41· AFFIRMED..dsubsedbedto before ..e tbis '. "." My Corem ss on '[ x;~res Mar. 21, 200{~I 48. Sig~re oPForeign 1. WHITE - Issuing Authodfy 2. PINK - AV, orney 3. CANARY - Sheriffs Office 31. Surch~J. 32, Tot. Costs 33 CostsDue0rRst~nd CheckN, Costs Due or Refund 49, DA~/11/03 51. DATE RECEIVED BLUE - Sheriffs Office JACK GAUGHEN, INC., d/b/a JACK GAUGHEN REALTOR ERA, PLAINTIFF BENJAMIN R. STARNER and, PAULA K. STARNER, DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION : NO. 2003-13450 CIVIL TERM .. JURY TRIAL DEMANDED NOTICE TO PLEAD TO: JACK GAUGHEN INC., d/b/a JACK GAUGHEN REALTOR ERA, and its attorneys, Paige Maedonald-Matthes, Esquire, and Matthew M. Haar, Esquire YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO COMPLAINT WITH NEW MATTER WITHIN TWE]bZI'Y (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. By: IRWIN, Mc, K/~__GHT & HUGHES MarcusA. c · qUire (717) 249-2353 Supreme Court ID. No. 25476 Attorney for Defendants Benjamin R. Starner and Paula K. Stamer Date: September 4, 2003 JACK GAUGHEN INC., d/b/a JACK GAUGHEN REALTOR ERA, PLAINTIFF BENJAMIN R. STARNER and PAULA K. STARNER, DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 03-3450 CIVIL TERM JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND NOW, this 4th day of September, 2003, come the Defendants, BENJAMIN R. STARNER and PAULA K. STARNER, by their attorneys, Irwin, McKnight & Hughes, and makes the following Answer with New Matter: The averments of fact contained in paragraph one (1) of the Complaint are admitted. The averments of fact conta'med in paragraph one (1) the Compla'mt are admitted in part and denied in part. It is admitted that the address listed is correct. It is denied that the name of Defendant, Benjamin R. Stamer, is correct. The averments of fact contained in paragraph three (3) of the Complaint are admitted. The averments of fact contained in paragraph four (4) of the Complaint are admitted. The averments of fact contained in paragraph five (5) of the Complaint are admitted in part and denied in part. It is admitted that a Release was signed. It is denied that the parties agreed that the Einerbrinks were subject to any reservation by Jack Gaughen, Inc. The averments of fact contained in paragraph six (6) of the Complaint are admitted in part and denied in part. It is admitted that the Defendants sought to terminate the Listing Agreement. It is denied that the Conditional Release required any commission to be paid if the Defendants sold the property to the Einerbrinks. The averments of fact conta'med in paragraph seven (7) of the Complaint are specifically denied. The Einerbrinks were introduced to the property by another realtor, Constantine J. Mallos, of Central State Realty. The contract dated December 16, 2001, between the Defendants and Scott and Tamara Einerbrink was released and became null and void. The averments of fact contained in paragraph eight (8) of the Complaint are admitted. The averments of fact contained in paragraph nine (9) of the Complaint are specifically denied. The Plaintiff had no interest in the contract which the Defendants negotiated with the Einerbrinks. All their rights had been released when the contract of December 16, 2001, was released and discharged. 2 10. The averments of fact conta'med in paragraph ten (10) of the Complaint are specifically denied. The Plaintiff had no interest in the contract which the Defendants negotiated with the Einerbrinks. All their rights had been released when the contract of December 16, 2001, was released and discharged. COUNT I BREACH OF CONTRACT AND NOW, this 4th day of September, 2003, comes the Defendants, Benjamin R. Starner and Paula K. Stamer, and makes the following Count I for Breach of Contract: 11. The averments of paragraphs one (1) through ten (10) of the Answer to the Complaint are hereby incorporated by reference and made a part of this Answer. 12. The averments conta'med in paragraph twelve (12) of Count I of the Complaint are specifically denied. The contract of December 16, 2001, was discharged and made null and void. The Plaintiff waived any right to a commission. 13. The averments contained in paragraph thirteen (13) of Count I of the Complaint are specifically denied. On the contrary, the contract which resulted in the sale had no involvement by either Jack Gaughen, Inc. or Central State Realty. 14. The averments of fact contained in paragraph fourteen (14) of Count I of the Complaint are specifically denied. On the contrary, the Defendants have no obligation to pay any commission to the Plaintiff. WHEREFORE, the Defendants, Benjamin R. Starner and Paula K. Stamer, request that the Complaint of the Plaintiff be dismissed with costs and interest as permitted by law paid to the Defendants. NEW MATTER AND NOW, this 4th day of September, 2003, comes the Defendants, Benjamin R. Stamer and Paula K. Stamer, and makes the following New Matter against the Plaintiff: 15. The averments of fact contained in the Answers numbered one (1) through fourteen (14) are hereby incorporated by reference and are made a part of this New Matter. 16. The Defendants were very dissatisfied with the lack of service offered by Paul Gunder, Realtor for Jack Gaughen, Inc. In a letter dated December 7, 2001, they requested the immediate cancellation of the Listing Agreement. A copy of that correspondence dated December 7, 2001, is attached hereto and incorporated by reference into this New Matter and marked as Exhibit "A". 4 17. The Plaintiff through a sub-agent, Constantine J. Mallos, attempted to sell the property with an Agreement of Sale dated February 11, 2002. That Agreement of Sale did not work and was cancelled by a Release which is attached hereto and incorporated by reference into this New Matter and marked as Exhibit "B". 18. Other attempts were made by the realtors to find an Agreement of Sale acceptable to the parties but those attempts failed. 19. Finally, out of frustration, the Defendants met with Scott and Tamara Einerbrink, and wrote their own contract dated June 26, 2002, and initialed on July 14, 2002. The sale took place on September 5, 2002. A copy of the Agreement of Sale is attached hereto and incorporated by reference into this New Matter and marked as Exhibit "C". 20. The Pla'mtiff had nothing to do with the negotiation of the terms of the final contract. The previous contracts were cancelled by the parties which ended any claim for commission that was established in the conditional release. 21. The Defendants owe the Plaintiff no compensation for the settlement held on September 5, 2002. WHEREFORE, the Defendants request judgment against the Plaintiff, Jack Gaughen, Inc. with costs and interest as permitted by law paid to the Defendants. By: Respectfully submitted, IRWIN, MCKNIG~H~S Carlisle, Pennsylvania 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for Defendants Date: September 4, 2003 EXHIBIT "A" December 7, 2001 Jack Gaughen Realtor ERA ATTN: Paul Gunder 1814 East Main Street Waynesboro, PA 17268 Listing Cancellation Agreements Request Dear Mr. Gunder: Please accept this letter as our formal request of you and your broker, Jack Gaughen Realtor ERA, to hereby release and terminate the listing agreements we signed with you for the marketing and sale of our properties at 374 and 367 Georgetown Road, Gardners, PA. The Member Broker Commitment to Service form you had us sign on 10/02/2001(copy attached), states that we must notify you in writing of our desire to terminate the listing agreement, and provide a mason for such.' Said form also states that Jack Gaughen Realtor ERA will have ten (10) days to correct the specific breaches of the contract. This is not applicable in our case, as the breaches you have made cannot be corrected. Our trust in you to represent z~c ~ is broken and the reasons for such are provided bel.o.w. The reasons we request the listing agreement termination are twofold. First, we have spoken with an interested party who stated that in lieu ofan actual tour and showing of the property, you stated that you would only do a 'drive-by'. This. breach or, contract is unacceptable. How is an interested person supposed to get a pr01~r review of the properties from inside a vehicle? Second and more importantly, you knowingly: a//d blatantly deceived us by stating if we terminated the listing agreement then we would have to reimburse you for any and all advertising costs that you incffrred in the marketing of our properties. Nowhere in our listing agreement documents does it state that we must reimburse you for your advertising costs. Additionally, you told me that if we terminated the listing agreement, then we would not be able to sell our properties for at least one year after the termination date. Again~ this is a blatant deception. Where in our listing agreement does it state that we cannot sell our home within one year of terminating our listing a~eement? It is quite obvious to us Mr. Gunder that you are serving your best interests by making such deceptive claims and by not showing our properties when an interested party requests such. You have a fiduciary duty to us and that duty has not been fulfilled. Please respect ou~ wishes and prepare a Listing Cancellation Agreement immediately. Thank you Sincerely, Jr Cc: James E. Crrando . EXHIBIT "B" REF.' TI,EAO..EMENTD^TED, / '2- / BY AND BETWEEN FOR THE SALE AND PURCHASE OF: NOW, it is ~eed between ~e pgdies that ~ELLER is no longer bo~d by ~nld Agreement of Sule or h~ve ~ny oblig~lian Io convey said properly Io BUYER. BUYER is no langer obli~ted to purch~e ~id pm~dy in ac~rdance wRh the [enn~ of Ihe Agreement of S~le. II i~ rudher 8Bread Ih~t 811 p~die~ relieve Cenlml S~te Really (~nd c~perating Broker, if applicable) of any obligation ~ ~eclian with ~aid AgreemenL IT IS AGREED TI IAT TIlE DEPOSIT IN TIIE ~OUNT OF ~ $ 6 ~ BErG IIELD ~ ESCROW BY C ~~ IN CONNEXION WITH THE ~OVE MENTIONED AG~E~NT OF SIIALL BE: FORFEITED AS LIQUIDATED DAMAGES. RETURNED TO TIlE BUYER: ( ) OTHER: ... AND SHALL BE DISBURSED AS FOLLOWS: (WHEN AND TO WHOM) B~ C~.,L ~ f3u~'rC ,~77~,'c ~c,- KNOWN ALL MEN, that we lhe undersigned BUYER, SELLER and AGENCIES ['~,i~i di~liiiso each other, their heirs, executors and admiulstratot~ of and From any and nil clnin~ resulting from Ihe agreement of sale For property and terms ns above described. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have hereunder set their hands LISTING BROKER/.~GENT WITNESS DATE SELLING BROKER/AGENT WITNESS DATE (OTHER) ESCROW AGENCY WITNESS DATE WIT~SS DATE - ~YER Wf N DATE EXHIBIT "C" VERIFICATION The foregoing Answer with New Matter is based upon information which has been gathered by counsel and us in the preparation of this action. We have read the statements made in this document and they are tree and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. R. STARNER PAULA K. STARNER Date: September 4, 2003 3 JACK GAUGHEN INC., d/b/a JACK GAUGHEN REALTOR ERA, PLAINTIFF BENJAMIN R. STARNER and PAULA K. STARNER, DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-3450 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Paige Macdonald-Matthes, Esquire Matthew M. Haar, Esquire 2 North Second Street, 7t" Floor Harrisburg, PA 17101 Date: September 5,2003 By: IRWIN, Mc/~.,ltT & H~I~ Marc~ A. M_cKn/Yght, ! Esquire (717) 249-2353 Supreme Court I.D. No. 25476 8 SA UL E WING LLP Attorneys for Plaintiffi Paige Macdonald-Matthes, Esquire Jack Gaughen Realtor ERA Matthew M. Hear, Esquire Pa. Attorney I.D. Nos. 66266 & 85688 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 238-7675 (Ms. Macdonald-Matthes) (717) 257-7508 (Mr. Hear) JACK GAUGHEN INC., d/b/a JACK GAUGHEN REALTOR ERA, Plaintiff, BENJAMIN R. STARNER and PAULA K. STARNER, Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : NO. 03-3450 : : : CIVIL ACTION - LAW : : : JURY TRIAL DEMANDED REPLY TO NEW MATTER Plaintiff Jack Gaughen Inc. d/b/a Jack Gaughen Realtor ERA ("Jack Gaughen'), by and through its undersigned counsel, hereby replies to the New Matter of Defendants Benjamin R. Starner and Paula K. Starner ("Starners") and avers as follows: 15. No responsive pleading is required. 16. Admitted in part and denied in part. It is admitted that Starners sent the December 7, 2001 letter attached to the Answer with New Matter as Exhibit "A." The December 7 letter is a written document, the terms of which are self-evident. It is denied that there was a "lack of service offered by Paul Gunder.' To the contrary, Mr: Gunder provided appropriate, professional service at all relevant times. After reasonable investigation, Jack Gaughen is without sufficient information to form a belief as to the 100067.1 9/17/03 truth of the remaining averments of paragraph 16, and such remaining averments are therefore denied. 17. Admitted in part and denied in part. It is admitted that Constantine J. Mallos ("Mallos") was a sub-agent of Jack Gaughen. It is admitted that Mallos and Jack Gaughen attempted to resurrect the deal between the Stamers and the Einerbrinks. It is admitted that Stamers attached a document titled "Release" to the Answer with New Matter as Exhibit B. Exhibit B is a written document, the terms of which are self- evident. The remaining averments of paragraph 17 constitute conclusions of law to which no responsive pleading is required, and are therefore denied. To the extent the remaining averments of paragraph 17 are deemed to constitute averments of fact, the same are denied, and Jack Gaughen incorporates by reference paragraphs 3 through 9 of the Complaint. 18. Admitted in part and denied in part. It is admitted that Jack Gaughen made significant efforts to try to successfully complete the December 16, 2001 contract between the Stamers and the Einerbrinks. See Complaint ¶ 7 & Exh. C. After reasonable investigation, Jack Gaughen is without sufficient information to form a belief as to the remaining averments of paragraph 18, and such remaining aYerments are therefore denied. 19. Admitted in part and denied in part. It is admitted only that Stamers have attached as Exhibit C a document which they purport to be a:a Agreement of Sale. After reasonable investigation, Jack Gaughen is without sufficient information to form a belief as to the truth of the remaining averments of paragraph 19, and such remaining averments are therefore denied. 100067'19/17/03 2 20. Admitted in part and denied in part. It is adtnitted that Jack Gaughen was not involved in the drafting of the document attached to the Answer with New Matter as Exhibit C. It is denied that Jack Gaughen "had nothing to do with" the sale between the Stamers and the Einerbrinks. To the contrary, and as admitted by the Starners, the Einerbrinks were introduced to the property while it was subject to an exclusive listing agreement with Jack Gaughen. See Complaint ¶¶ 3-4 & Exh. A; Answer ¶¶ 3-4. The remaining averments of paragraph 20 constitute conclusions of law to which no responsive pleading is required, and are therefore denied. To the extent the remaining averments of paragraph 20 are deemed to constitute averments of fact, the same are denied, and Jack Gaughen incorporates by reference paragraphs 3 through 9 of the Complaint. 21. Denied. The averments of paragraph 21 constitute conclusions of law to which no responsive pleading is required, and are therefore denied. To the extent the averments of paragraph 21 are deemed to constitute averments of fact, the same are denied, and Jack Gaughen incorporates by reference paragraphs 3 through 9 of the Complaint. 10006Ll 9/17/03 3 WHEREFORE, plaintiff Jack Gaughen Inc., d/b/a Jack Gaughen Realtor ERA respectfully requests that this Court enter judgment for it and against defendants Benjamin and Paula Stamer in the amount of $20,700, as well as interest and costs and such further relief as this Court deems just and equitable. Respectfully submitted, ~ai~e M~cdonald-Mlt~thes, Esquire Supreme Court: ID #66266 Matthew M. Haar, Esquire Supreme Court 1D #85688 SAUL EWING LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 238-7675; (Ms. Macdonald-Matthes) (717) 257-7508 (Mr. Haar) Attorneys for Plaintiff Jack Gaughen Realtor, ERA Date: September 17, 2003 VERIFICATION I, Paul Gunder, hereby verify that I am authorized to make this verification on behalf of Jack Gaughen Inc., d/b/a Jack Gaughen Realtor ERA, that I have read the foregoing Reply to New Matter, and that the statements of fl~ct made therein are true and correct to the best of my knowledge, information and belief I make this statement pursuant to 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities. Dated: September /'27 2003 CERTIFICATE OF SERVICE I hereby certify that on September 17, 2003, I served a tree and correct copy of the foregoing Reply to New Matter by first-class mail, postage prepaid, upon the following counsel of record: Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 Dated: September 17, 2003 Matthew M. Haar JACK GAUGHEN INC., d/b/a JACK GAUGHEN REALTOR ERA, Plaintiff, BENJAMIN R. STARNER and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-3450 PAULA K. STARNER, : Defendants. : CIVIL ACTION - LAW RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS Dated: March 2, 2004 TO THE HONORABLE, THE JUDGES OF SAID COURT: Matthew M. Haar, Esquire, counsel for the plaintiffin the above action respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $20,700.00. There is no counterclaim by the defendants. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Matthew M. Haar, Esquire and Marcus A. McKnight, III, Esquire. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ~ ~ ~ ~ l~[~t~he~v M. Haar, Esquire Supreme Court 1D #85688 SAUL EWING LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7508 Attorneys for Plaintiff ORDER OF COURT_ ........ this /7/~a'' of 2004, in consideration of the .~_w ' ~ l,~ff~~ ,Esquire. foregging petition, _'~_~. ~ ~- f~ ~/~ ~ , - , s ulre aba ( ]]d~/~r~t~ ._ ' ff~45~l~ / ~ ~{~ ~ .~f~sq ' .. -5~2~r ~t~/as nrayed for. Esq~re, ~e appoi~d arNtrators m me avove capuo~[,-~ ~ ~- , ~ BY THE ~T, 1032472 3/2/04 CERTIFICATE OF SERVICE I hereby certify that on March 2, 2004, I served a tree and correct copy of the foregoing Petition for Appointment of Arbitrators by first-class mail, postage prepaid, upon the following counsel of record: Dated: March 2, 2004 Marcus A. McKnight, III, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 I{/laithex~ M. Haar 1032472 3/2[04 JACK GAUGHEN, INC., d/b/a JACK GAUGHEN REALTOR ERA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 03-3450 CIVIL TI=RM BENJAMIN R. STARNER and : PAULA K. STARNER IN RE: ARBITRATION ORDER OF COURT AND NOW, April 7, 2004, the Court having been informed that the above-captioned case has settled prior to hearing, the panel of arbitrators previously appointed is vacated, and Thomas J. Williams, Esquire, Chairman of the Arbitration Panel, shall be paid the sum of $50.00. By th(; Court, /Thomas J. Williams, Esquire Chairman /Charles Zaleski, Esquire /'Jeffrey Yoffe, Esquire vCourt Administrator ¥ JACK GAUGHEN INC., d/b/a : IN THE COUR'r OF COMMON PLEAS OF JACK GAUGHEN REALTOR ERA, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : : NO. 03-3450 V. '- BENJAMIN R. STARNER and : CIVIL ACTION - LAW PAULA lC STARNER, : Defendants. : PRAECIPE FOR DISCONTINU/~dNCE TO THE PROTHONOTARY: Please mark the above-captioned matter discontinued with prejudice. Respectfullly submitted, IX{lat~hew gi. H'aar, L~quire Supreme Court ID//85688 SAUL EWING LLP 2 North Second Street, 7th Floor Hamsburg, PA 17101 (717) 257-7508 (Mr. Haar) Dated: April 23, 2004 Attorneys jbr Plaintiff Jack Gaughen Realtor, ERA 103993 I 4/23/04 CERTIFICATE OF SERVICE I hereby certify that on April 23, 2004, I served a true and correct copy of the foregoing Praecipefor Discontinuance by first class mail, postage prepaid, upon the following persons: Marcus A. McKnight, I1/, Esquire Irwin & McKnight 60 West Pomfi'et Street Carlisle, PA 17013 Matt~hew~,~l. Haar'~' Dated: April 23, 2004 1039931 4/23/0~