HomeMy WebLinkAbout80-0420Paragraph 3.) of Defendant's "Motion For More Specific
Pleading'T lacks conformity to Pa. R.C. P. No. 1028(b) because
the Defendant failed to raise the objection in its "Motion
For More Specific Pleading" initially filed on or about
February 29, 1980, even though the matter objected to was
then clearly a part of the record. Defendant has waived
the objection by virtue of Pa. R.C.P. No. 1032.
Paragraph 4.) of Defendant's motion for more specific
pleading is as follows:
"~I.) The documents referred to in Count III are not
attached to the Complaint and without them the allegations of
this Count are incomprehensible.".
Paragraphs 3.) and 4.) of Defendant's "Motion For More
Specific Pleading" lack conformity to Pa. R.C.P. No. 1017
which makes the motion available only in cases where a
pleading is vague or ambiguous and a more specific pleading
may cure the defect. In the instant case, in paragraphs
3. and 4.) Defendant is seeking information which ordin-
arily must be obtained pursuant to Pa. R.C.P. Nos. X001 et
sec which provides the prescribed procedure for "Depositions
and Discovery".
- 15 -
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife, .
Plaintiff
v.
JOHN W. PRAHL AND CO., INC.,
Defendant .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
420 CIVIL 1980
IN ASSUMPSIT AND TRESPASS
JURY TRIAL DEMANDED
IN RE: PLAINTIFFS' PRELIMINARY OBJECTIONS TO
THE DEFENDANT 5 PRELIMINARY OBJECTIONS
Before SHUGHART, P.J.; SHEELY, J, and HOFFER, J.
ORDER OF COURT
AND NOW, January 15, 1981, after careful consideration
of the briefs filed and oral argument, the plaintiffs' preliminary
objections to the defendant's preliminary objections to the
plaintiffs' complaint be and are hereby dismissed.
By the Court,
r
i F ~ ,~~
<,, f L
~.
John M. Eakin, Esquire --~ ~ ~ ~ ~ '~ i~~_~. ""
For the Defendant
William B. Teeny
Plaintiff
:dp
Dal/fe F . Sh(ughart~,~ P . J .
~~.~ .
;7
~
~~ j.-
.m .~.{
'L "t
i
- .l
'T
.1 ~ _'}
~vp '_;~ ~~"i
_..
W t ~.
r, .'t
'L~ ,::. ~. C.s f~rt
Y
-~ ~
1
~ r
,.. A3
WILLIAM B. TENNY and
S:-iIRLEY A. TENNY, his wife,
Plaintiff
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
~~
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
. N0. 420 CIVIL, 1980
IN ASSUMPSIT AND TRESPASS
. JURY TRIAL DEMANDED
BRIEF
OPPOSING DEFENDANT'S
PRELIMINARY OBJECTION
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
INDEX TO BRIEF
TABLE OF CONTENTS
Page(s)
INDEX TO BRIEF i
1. STATEMENT OF JURISDICTION 1
2. STATEMENT OF THE QUESTIONS 2
3. STATEMENT OF THE CASE . 3 through 7
A. PROCEDURAL HISTORY 3
B. STATEMENT OF THE PLEADINGS (NOT IN ISSUE). 4-5-6-7
4. ARGUMENT 8 through 20
A. DEFENDANT HAS ABANDONED ITS "PRELIMINARY
OBJECTION" BY FAILING TO LIST IT FOR
ARGUMENT CONSISTENT WITH THE REQUIRE-
MENTS OF PA. R.C.P. N0. 1028 AND LOCAL
RULE N0. 211-2 AND BY NOT ARGUING ITS
MERITS IN THE BRIEF AS REQUIRED BY LOCAL
RULE 210-~I 8_g
B. DEFENDANT'S "DEMURRER" SHOULD BE STRICKEN
OFF AS LACKING CONFORMITY TO LAW AND RULE
OF COURT AND AS BEING IMPERTINENT MATTER 10-11
C. DEFENDANT'S "MOTION TO STRIKE" SHOULD BE
STRICKEN OFF AS LACKING CONFORMITY TO
LAW AND RULE OF COURT 12-13
D. DEFENDANT'S "MOTION FOR MORE SPECIFIC
PLEADING" SHOULD BE STRICKEN OFF AS
LACKING CONFORMITY TO LAW AND RULE OF
COURT 1?~-15
ALTERNATELY:
E. DEFENDANT'S "DEMURRER" IS WHOLLY WITHOUT
MERIT 16
F. DEFENDANT'S "MOTION TO STRIKE" IS WHOLLY
WITHOUT MERIT 17
G. DEFENDANT'S "MOTION FOR MORE SPECIFIC
PLEADING" IS WHOLLY WITHOUT MERIT 18-19-20
5. CONCLUSION 21
- i -
1. STATEMENT OF JURISDICTION
On October 2, 1980, Your Honorable Court granted
Plaintiff's Application For Extension, of equal date,"for 30
days to give the plff. an opportunity to list the preliminary
objections for argument", copies of which are attached hereto
as EXHIBIT "A" and EXHIBIT "B", respectively, and incorporated
herein by reference.
By virtue of Pa. R.C.P. No. 1028 the court has juris-
diction of all preliminary objections and the court shall deter-
mine promptly all preliminary objections in a manner consistent
with law and rule of court.
Accordingly, both Plaintiff`s and Defendant's prelim-
inary objections are presently before Your Honorable Court to
be determined.
- 1 -
2. STATEMENT OF THE QUESTIONS
A. HAS DEFENDANT ABANDONED ITS "PRELIMINARY OBJECTIONS" BY
FAILING TO LIST IT FOR ARGUMENT CONSISTENT WITH THE
REQUIREMENTS OF PA. R.C.P. N0. 1028 AND LOCAL RULE N0.
211-2?
Answer: YES
B. SHOULD DEFENDANT'S "DEMURRER" BE STRICKEN OFF AS LACKING
CONFORMITY TO LAW AND RULE OF COURT AND AS BEING IMPERTINENT
MATTER?
Answer: YES
C. SHOULD DEFENDANT'S "MOTION TO STRIKE" BE STRICKEN OFF AS
LACKING CONFORMITY TO LAW AND RULE OF COURT?
Answer: YES
D. SHOULD DEFENDANT'S "MOTION FOR MORE SPECIFIC PLEADING" BE
STRICKEN OFF AS LACKING CONFORMITY TO LAW AND RULE OF COURT?
Answer: YES
ALTERNATELY:
E. IS DEFENDANT'S "DEMURRER" WHOLLY WITHOUT MERIT?
Answer: YES
F. IS DEFENDANT'S "MOTION TO STRIKE" WHOLLY WITHOUT MERIT?
Answer: YES
G. IS DEFENDANT'S "MOTION FOR MORE SPECIFIC PLEADING" WHOLLY
WITHOUT MERIT?
Answer: YES
- 2 -
STATEMENT OF THE CASE
A. PROCEDURAL HISTORY
The instant action was commenced by filing a Complaint
on February 4, 1980. Defendant filed Preliminary Objections
to the Complaint on February 2g, 1g80.
On March 10, 1980, the Plaintiff filed an Amended
Complaint, and again on April 3, 1980, the Defendant filed
Preliminary Objection (sic). On April 23, 1980, Plaintiff filed
Preliminary Objections To Preliminary Objections for the purpose
of delineating the issues raised by the preliminary objections
filed by Defendant.
On October 2, 1980, Plaintiff filed an Application For
Extension because of the "240 day rule", and on October 2, 1980,
the court issued an Order Of Court granting the application
for 30 days to give the Plaintiff an opportunity to list the
preliminary objections for argument. On November 3, 1980, the
Plaintiff filed a Praecipe For Listing Case For Argument, and
the preliminary objections are presently before Your Honorable
Court for determination as hereinbefore stated.
- 3 -
B. STATEMENT OF THE PLEADINGS
(NOT IN ISSUE)
The instant action is an action in assumpsit and
trespass. A Jury Trial is demanded.
In the Amended Complaint the Plaintiff has duly
identified the parties to the action and has duly pleaded,
alternately, two (2) counts in assumpsit and a third count in
trespass. The Plaintiff has pleaded the existence of an agree-
ment between the parties and has duly attached a copy of the
writing upon which the instant law suit is based.
In the Amended Complaint Plaintiff pleads facts which
demonstrate its full compliance with the agreement. The pertin-
ent terms of the agreement are fully stated in Count I - In
Assumpsit. Plaintiff states that a demand was made for the
Defendant to comply with the express terms of the agreement
but that the Defendant refused and failed to do so. Plaintiff
further states that the Defendant has previously admitted its
failure to perform as agreed, and Defendant's statements of
admission are duly incorporated by reference in the pleading.
Plaintiff states that because of Defendants refusal
and failure to comply with the requirements of the agreement
it was unable to secure a mortgage release which lead to Plain-
tiff's ultimate financial collapse and loss of valuable property.
Plaintiff states that it also lost additional income promised
by the Defendant as an inducement for the agreement. Plaintiff
states that it also lost borrowing power and financial indepen-
dence because of the Defendant's failure to perform in accordance
- 4 -
with the express terms of the agreement.
Plaintiff states that it has been damaged as a result
of Defendant's breach of agreement as stated and specifies the
nature and amounts of damages suffered by it. Plaintiff also
specifies the exact relief to which it deems itself entitled,
and a demand is made for the relief specified.
Count II - In Assumpsit is pleaded by Plaintiff in
the alternative. Relevant preceding parts of the pleading
are incorporated in Count II by incorporation by reference.
In Count II Plaintiff states that the agreement was
written by the Defendant, its officer(s), agent(s), or employee(s),
and that paragraph 6 of the agreement was a "buy-back" provision
and the agreement was signed on that basis by Plaintiff having
no reason to believe otherwise.
Plaintiff succinctly states the provisions of the said
paragraph 6 and subsequent circumstances which actuates the
provisions stated therein. Plaintiff states that it demanded
Defendant comply with the provisions of paragraph 6 of the agree-
ment but that the Defendant refused and failed to do so.
Plaintiff states that because the Defendant refused
and failed to comply with the provisions of paragraph 6 of the
agreement, it suffered the loss of the use, benefit, and control
of the property which is the subject of the agreement, resulting
in Defendant's entering a Judgment against the Plaintiff at
Cumberland County Court No. 3536 CIVIL, 1977, and also the loss
of income promised as an inducement for Plaintiff to sign the
agreement in the first place.
- 5 -
In Count II - In Assumpsit, Plaintiff states that
it has been damaged as a result of Defendant's breach of
paragraph 6 of the agreement, as stated, and specifies the
nature and amounts of damages suffered by it as a result of
the breach. Plaintiff also specifies the exact relief to which
it deems itself entitled, and a demand is made for the relief
specified.
In Count III - In Trespass, Plaintiff states that the
Defendant attached a proposed easement to a Complaint indexed
to Cumberland County Court No. 3536 Civil, 1977. Plaintiff states
that the proposed easement was never knowingly and willingly
acknowledged and delivered to the Defendant and that no duly
acknowledged original typewritten instrument exists or ever did
exist.
The Defendant denied under oath that the propased
easement or any part thereof was ever duly recorded in the
Cumberland County Recorder of Deeds Office, and Defendants
statements of denial are duly incorporated by reference in the
pleading.
However, Plaintiff states that a copy of the proposed
easement has been altered to include an acknowledgment by the
Plaintiff who has never knowingly and willingly acknowledged and
delivered the altered "facsimile" to the Defendant and that the
altered "facsimile" was presented to the Cumberland County Record-
er of Deeds for indexing and recording, as indexed in the
Recorder's Docket "Entry Book 1974 to 1975" at No. 4575, by the
Defendant, its officer(s), servant(s), agent(s), or employee(s).
Plaintiff states that the altered ''facsimile" is recorded under
- 6 -
the name of Hampden Township Sewer Authority and Hampden Twp
Sewer Auth., alternately. Plaintiff states that the document
clearly shows the alteration in that two dates written thereon
are more than two years apart and the signatures purporting to
be the Plaintiff's are not the same on the altered "facsimile"
and the "proposed easement" which also contains no acknowledg-
ment. Plaintiff states that the Defendant, its officer(s),
servant(s), agent(s), or employee(s), at all times subsequent
to December 7, 1974, has had full knowledge that the altered
"facsimile" had been recorded. Plaintiff states that it never
knowingly and willingly signed the altered "facsimile".
Plaintiff pleads averments of fraud with particularity
and states that it had no prior knowledge or belief as to property
and rights lost because of the fraud and deceit stated. Plain-
tiff states that it has been damaged by the Defendant as a
result of the fraud and deceit stated. Plaintiff specifies the
nature and amounts of damages suffered by it and claims punitive
damages in excess of $10,000.00. Plaintiff also specifies the
exact relief to which it deems itself entitled, and a demand
is made for the relief specified.
- 7 -
4. ARGUMENT
A. DEFENDANT HAS ABANDONED ITS "PRELIMINARY OBJECTION" BY
FAILING TO LIST IT FOR ARGUMENT CONSISTENT WITH THE
REQUIREMENTS OF PA. R.C.P. N0. 1028 AND LOCAL RULE N0.
211-2 AND BY NOT ARGUING ITS MERITS IN THE BRIEF AS
REQUIRED BY LOCAL RULE 210-4.
Upon service of the Complaint and Amended Complaint,
the Defendant filed preliminary objections instead of simply
answering the pleadings both of which were adequate to put the
Defendant on notice as to Plaintiff's claim.
The Plaintiff is under no duty to list Defendant's
preliminary objection (sic) for argument. Once preliminary
objections for either side are listed for argument, the case is
before the court which must promptly determine all preliminary
objections as required by Pa. R.C.P. No. 10281.
On November 3, 1980, Plaintiff's preliminary objections
were listed for argument, and the Defendant was amply notified of
the pending argument. Defendant eventually served Plaintiff a
copy of its Brief on January 8, 1981. However, the Defendant
failed to list its preliminary objection (sic) for argument as
required by Local Rule No. 211-22 and also failed to argue in
its Brief matters contained in its preliminary objections.
Accordingly, Your Honorable Court should not permit argument
by Defendant on matters contained in its preliminary objections
1The pertinent part of Pa. R.C.P. No. 1028 provides that:
"(c) ~ ~ ~. The court shall determine promptly al l_ prelim-
inary objections." (emphasis added)
2Loca1 Rule No. 211-2 provides that:
"No matter shall be argued at an Argument Court, including
those matters continued from a prior Argument List, unless
the matter is placed on the Argument List, maintained in
a docket in the office of the prothonotary, by a party or by
a court official at the direction of the court."
- 8 -
and not argued in its Brief.
The Defendant has abandoned its preliminary objection
(sic) consistent with the sanctions of Local Rule No. 210-43.
3The pertinent part of Local Rule No. 210-4 provides that:
"~ ~ ~. Matters not argued in the brief shall be deemed
abandoned, and the court may restrict oral argument
accordingly."
- g -
B. DEFENDANT'S "DEMURRER" SHOULD BE STRICKEN OFF AS LACKING
CONFORMITY TO LAW AND RULE OF COURT.
Paragraph l.) of Defendant's demurrer is as follows:
"l.) Count I - There is no breach of any contract alleged
in this count.".
Paragraph 1.) of Defendant's demurrer lacks conformity
with Pa. R.C.P. No. 1017 and is impertinent matter in that:
1. The allegation thereby being made is not made
against the sufficiency of the claim itself but is in the
nature of a claim against the content of the complaint which
must be raised in a motion for a more specific pleading
consistent with the provisions of Pa. R.C.P. No. 1017; and
2. The specific allegation that a breach of contract
has occurred is, in the instant case, a conclusion of fact
which need not be pleaded, and thus, the said paragraph
l.) is impertinent matter.
Paragraph 2.) of Defendant's demurrer is as follows:
"2.) Count II - The agreement referred to does not give
plaintiffs the right to require defendant to convey the land
to them."
Paragraph 2.) of Defendant's demurrer lacks conformity
to Pa. R.C.P. Nos. 1029 and 1030 and is impertinent matter in
that:
1. The allegation thereby being made is a general
denial of Count II of Plaintiff's Amended Complaint and is
therefore a responsive pleading which must be pleaded with
the answer consistent with the requirements of Pa. R.C.P.
- 10 -
No. 1029;
2. The allegation thereby being made may be an affirm-
ative defense which should be pleaded in a responsive
pleading under the heading "New Matter" consistent with the
requirements of Pa. R.C.P. No. 1a30; and
3. The allegation thereby being made is not a claim
against the sufficiency of the pleading but is a conclusion
of fact for the Jury, and thus, it is impertinent matter.
- 11 -
C. DEFENDANT'S "MOTION TO STRIKE" SHOULD BE STRICKEN OFF AS
LACKING CONFORMITY TO LAW AND RULE OF COURT.
Defendant's motion to strike is as follows:
"Plaintiff moves to strike the following:
l.) The damage claims in Count I (Paragraph 10) as these
damages cannot be recovered on the cause of action stated in this
count, assuming arguendo, that a breach of contract is alleged.
2.) The damage claims in Count II (Paragraph 20 & 21) for
the following reasons:
a.) Paragraph 20(a) and Paragraphs 21(a) and 21(b) -
There was no default judgment intered (sic) against plain-
tiffs in the case at 3536 Civil 1977.
b.) Paragraph 20(b) and Paragraph 21(c) - A claim for
loss of commissions which plaintiffs would receive for selling
land owned by defendants is inconsistent with Count II which
purports to state a cause of action to collect for failure
to reconvey the land to the plaintiffs.
3.) The damage claims in Count III (Paragraph 39) as (1)
there is no allegation plaintiffs lost .~42 acres of land and (2)
"unliquidated damages in excess of $10,000.00" cannot be awarded
on the cause of action set forth in this Count."
Defendant's "Motion To Strike" should be stricken off
as lacking conformity to law and rule of court as follows:
1. Defendant's "Motion To Strike" lacks conformity to
Pa. R.C.P. No. 1017 because it requests the court to strike
only certain specified paragraphs of the Amended Complaint
while the said rule makes the motion available to strike
off not less than. the entire pleading.
- 1~ -
2. Defendant's "Motion To Strike" lacks conformity to
Pa. R.C.P. No. 1017(b)(2) because it fails to raise any
objection for which the motion to strike off a pleading
is made available.
3. Paragraph 3.}(1) of Defendant's "Motion To Strike"
lacks conformity to Pa. R.C.P. No. 1028(b) because the
Defendant failed to raise the objection in its initial
preliminary objections dated February 29, 1980, even though
the matter objected to was then clearly a part of the
original Complaint.
- 1,3 -
D. DEFENDANT'S "MOTION FOR MORE SPECIFIC PLEADING" SHOULD BE
STRICKEN OFF AS LACKING CONFORMITY TO LAW AND RULE OF
COURT.
Paragraph l.) of Defendant's motion for more specific
pleading is as follows:
"l.) Paragraph 8 is incomprehensible"
Paragraph l.) of Defendant's "Motion For More Specific
Pleading" lacks conformity with Pa. R.C.P. No. 1028 because
it fails to state specifically in what manner the opposing
averment is incomprehensible.".
Paragraph 2.) of Defendant's motion for more specific
pleading is as follows:
"2.) Exhibit A is not the complete agreement between the
parties and plaintiffs should be required to plead the entire
agreement.".
Paragraph 2.) of Defendant's "Motion For More Specific
Pleading" lacks conformity to Pa. R.C.P. No. 1029(a) because
it is a general denial of paragraph 3 of the Amended Complaint
which must be pleaded in a responsive pleading and because
it fails to refer specifically to the paragraph in which
the averment admitted is set forth
Paragraph 3.) of Defendant's emotion for more specific
pleadin~is as follows:
"3.) In Count III the plaintiffs should be ordered to plead
categorically whether they allege (1) defendant forged plaintiffs'
name, (2) whether defendants caused a notary to complete a false
acknowledgment and (3) what is the difference, if any, between
the so called "proposed easement" and the "facsimile" referred to
in this Count.".
- l~
Paragraph 3.) of Defendant's "Motion For More Specific
Pleading" lacks conformity to Pa. R.C. P. No. 1028(b) because
the Defendant failed to raise the objection in its "Motion
For More Specific Pleading" initially filed on or about
February 29, 1980, even though the matter objected to was
then clearly a part of the record. Defendant has waived
the objection by virtue of Pa. R.C.P. No. 1032.
Paragraph 4.) of Defendant's motion for more specific
pleading is as follows:
"~4.) The documents referred to in Count III are not
attached to the Complaint and without them the allegations of
this Count are incomprehensible.".
Paragraphs 3.) and 4.) of Defendant's "Motion For More
Specific Pleading" lack conformity to Pa. R.C.P. No. 1017
which makes the motion available only in cases where a
pleading is vague or ambiguous and a more specific pleading
may cure the defect. In the instant case, in paragraphs
3. and 4.) Defendant is seeking information which ordin-
arily must be obtained pursuant to Pa. R.C.P. Nos. X4001 et
s~ which provides the prescribed procedure for "Depositions
and Discovery".
- 15 -
E. DEFENDANT'S "DEMURRER" IS WHOLLY WITHOUT MERIT..
Defendant's "Demurrer" is as follows:
"The complaint fails to state a cause of action on which
relief may be granted in that:
l.) Count I - There is no breach of any contract
alleged in this count.
2.) Count II - The agreement referred to does not
give plaintiffs the right to require defendant to convey the
land to them.".
Defendant's paragraph l.) as above stated may or may
not be true but if the averment were contained in the Amended
Complaint, the statement would amount to only a conclusion of
fact which is ultimately for the Jury to decide. Furthermore,
Count I includes sufficient statements of fact to show that a
breach of contract by the Defendant is claimed by Plaintiff.
Defendant's paragraph 2.) as above stated is also a
conclusion of fact for the Jury to decide. The Agreement clearly
shows that there were certain promises made between the parties,
and the Plaintiff can present evidence to show just exactly
what the promises made were.
- 16 -
F. DEFENDANT'S "MOTION TO STRIKE" IS WHOLLY W~THQUT MERIT.
Defendant's "Motion To Strike" is reproduced on
page 11, supra.
Defendant's averments in this motion all pertain to
the propriety of the damages claimed in Plaintiff's Amended
Complaint. Defendant makes no claim in this motion that Plaintiff's
Amended Complaint lacks conformity to law or rule of court or
that the pleading contains scandalous or impertinent matter.
Accordingly, Defendant's "Motion To Strike" is not within the
scope of Pa. R.C.P. No. 1017.
"The propriety of the damages claimed can generally
4
not be raised by a motion to strike.", citing 2 Anderson Pa. Civil
Practice, p. 470, note 77.
4See also Pa. Power & Li ht Co. v. Breach, lg D & C.2d 102,
10 Cumb. 5 (1959);
Farnsworth v. Dorcon, Inc., 50 D. & C.2d 366 (L970); and
Smith v. Engineers Limited Pipeline Co., 10 Chest.
_ 369 (1961)
- 17 -
G. DEFENDANT'S "MOTION FOR MORE SPECIFIC PLEADING" IS WHOLLY
WITHOUT MERIT.
Paragraph l.) of Defendant's motion is as follows:
"l.) Paragraph 8 is incomprehensible".
Paragraph 8 of the Amended Complaint. is as follows:
rr8. Defendant refused and failed to comply with the
aforesaid terms of the "agreement" and also paragraph 4 of the
"agreement" which provides that "Settlement is to be made on
or before March 15, 1974, and paragraphs 1, 2, and 3 of DEFEND-
ANTS' INTERROGATORIES, FIFTH SET,entered on or about February
23, 1978, in the above-named Court as indexed to No. 3536
CIVIL, 1977, are incorporated herein by reference.".
There is nothing incomprehensible about Plaintiff's
paragraph 8 as above-stated. While the averment does include
the technical procedure of incorporating. matter already on
record in this Court, Defendant is not pro se and its
counsel is fully competent to understand and interpret the
procedure used by Plaintiff.
Paragraph 2.) of Defendant's motion is as follows:
"2.) Exhibit A is not the complete agreement between the
parties and plaintiffs should be required to plead the entire
agreement.".
Plaintiff's pleading is in no manner insufficient because
it does not plead evidence. Defendant has every right to plead
in its answer and new matter, if any, whatever it deems to be
the complete agreement between the parties. Plaintiff has
already attached the writing upon which Counts I and II are
based which fulfills the requirement of Pa. R.C.P. 1019(h}.
- 1 ~? -
Paragraph 3.) of Defendant's motion is_as follows:
"3.) In Count III the plaintiffs should be ordered to
plead categorically whether they allege (1) defendant forged
plaintiffs' name, (2) whether defendants caused a notary to
complete a false acknowledgment and (3) what is the difference,
if any, between the so called "proposed easement" and the
"facsimile" referred to in this Count.".
None of the averments contained in Defendant's
paragraph 3.) as above stated are essential to Count III -
In Trespass. However, paragraphs 26, 3a, 33, and 35 of Plaintiff's
Amended Complaint state facts which clearly show the difference
between the "proposed easement" and the altered "facsimile".
A dictionary will provide the balance of information sought
in ( 3) , supra
Furthermore, Defendant has every right to file an
answer to Count III together with new matter and a notice to
plead.
Paragraph ~I.) of Defendant's motion is as follows:
"4.) The documents referred to in Count III are not
attached to the Complaint and without them the allegations of
this Count are incomprehensible.".
While it is not clear to Plaintiff which allegations
Defendant is referring to in paragraph 4.) as above stated, the
averments in Count III show that all of the documentary evidence
is a matter of public record and specify official references as
to their whereabouts.
Moreover, "as the pleading of evidence is improper, it
necessarily follows that a pleading is not insufficient because
- l~j. -
it does not plead evidence ~ ~ ~", citing 2 Anderson Pa.
Civil Practice, p. 493, §1017.118.
- 20 -
5. CONCLUSION
For any or all of the foregoing reasons and those
stated in Plaintiff's "Preliminary Objections To Preliminary
Objections", Your Honorable Court should:
A. Dismiss Defendant's preliminary objections with
20 days within which Defendant may plead over;
B. Overrule Defendant's preliminary objections; or
C. Sustain Plaintiff's preliminary objections with
20 days within which Defendant may plead over.
Respectfully submitted,
„ ~ ~ //`~ l
G~ L'~'LIAM B. ~~3~NY 'g or Plaintiff
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
- 21 -
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
IN THE COURT OF COMMON 1'I~EAS Ulu'
CUMBERLAND COUNTY, PENNSYLVANIA
No. 420 CIVIL, 1980
. IN ASSUMPSIT and TRESPASS
JURY TRIAL DEMANDED
APPLICATION-FOR EXTENSION
AND NOW, this 2nd day of October, 1980,-comes the
Plaintiff, WILLIAM B. TENNY and SHIRLEY A. TENiJY, his wife, pro
se, and present their application as follows:
1. The instant action was commenced upon filing of a
Complaint on February ~,-1980. TWENTY (25) DAYS latter the
Defendant finally got around to filing Preliminary Objections
dated February 29, 1980.
2. In an effort to cure the said objections, the
Plaintiff filed an Amended Complaint as of course on March 10,
1980. TWENTY (24) DAYS latter on April 3, 1980, the Defendant
filed another dilatory pleading entitled Preliminary Objections.
3. For the purpose of delineating the issues, on
April 23, 1980, the Plaintiff filed Preliminary Objections
To Preliminary Objections.
4. The Defendant appears to have abandoned its
Preliminary Objections filed on February 29, 198O,and on April
3, 1980, as:the Defendant has failed to list its objections for
- argument.
5. Furthermore, the Court has not determined the
preliminary objections as filedl.
1See Pa. R.C.P. §1O28(c)
- 1 -
EXHIBIT j'A`'
6. Additionally, in no manner, whatsoever, was the
Plaintiff notified of the Pa. Supreme Court Order dated November
19, 1979, and Cumberland County Order Of Court dated August 21,
1980, until on or about September 18, 1980, upon receipt of a
postage card, a copy of which is attached hereto as EXHIBIT "A"
and incorporated herein by reference, from the Cumberland County
Prothonotary's Office, Court House - Carlisle, Pa. 17013.
7. The amount of time which elapses between the
commencement of this action and final-judgment has no affect,
whatsoever, upon the unified Judicial System and is therefore
not a procedural matter within its-discretion.
8. The Defendant has not complained of delay.
9. Delay in prosecuting the instant action is due
solely to the Defendant's inaction on its dilatory pleadings,
as aforesaid, and is in no manner due to any act or failure
to act by the Plaintiff.
10. Unless this petition is granted, the Plaintiff
will be denied substantive legal and constitutional rights
resulting in irreparable harm and damage to them.
WHEREFORE, the Plaintiff demands sufficient time in
which to prosecute the instant action to final judgment.
Respectfully submitt
LLTAM B, f ntiff
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
- 2 -
EXHIBI i '~ A"
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 420 CIVIL, 1980
IN ASSUMPSIT and TRESPASS
JURY TRIAL DEMANDED
A F F I D A V I T
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF CUMBERLAND
WILLIAM B. TENNY and SHIRLEY A. TENNY, being duly
sworn according to law, depose and say that the foregoing
statements contained in their Application For Extension are
true and correct to the best of their knowledge, information,
and belief.
- W~~LIAM B. T NY,~`af~iant
SHIRLE A. TENNY affiant
SUBSCRIBED AND SWORN TO BEFORE
ME this 2nd day of October, 1980
G~j F
~ NOT RY PUBLIC p
My Commission Expires: / O
i
EXHIBIT ~'A"
r
PROTHONOTARY'S OFFICE
Court House -Carlisle, PA 17013
~~ h~.o
lapsed since the institution of this action;
thus only remain to comply with the 240-day rule established
~ by Supreme Court Order of November 19, 1979. Unless this case Is
listed on the Trial Ready List (Rule 212-5) or the Trial List (Rule 214-1)
within the next , the court shall require that good cause be
shown why the case should not be dismissed f//o~~r want of prosecution.
Plaintiff ~ Defendant LIc-~'tn1 Lt/ ~~~
Date _~1 h /.~ 190 #~~ Civil 19~
~,
Prothonotary
,.
Your vote is ~-''STS
~~a ~v~
yGl.'r VGiGe.
Say ~' somethin~.~
~~~:
.~C
30 g -7'j-~Q2,k-cam S~ .
/ 7d l/
EXHIBIT "A"
EXHIBIT '~A~~
~., ~ _ - -
i= _-_-- ~_~-~-.
J i:~~'
4EP16'80 ~j s ~° - - .
~,. , ~-
~~--•-~ ~~1-e73?91 1, i.
~J .
i
M.-~~-'
WI]~L I11i~! ~~~~:';;~'~~
SHIRLEY A . 'i'!~'. i:d ti~ , 't, i . ~ •~~ i .. ~ ,
Flaintiff
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
~,~,._.~~RLA?Jl~ ~'UU,d'1". , '. i~;PJN,'~ L~V~"~,;~1J ~~
;Jo. X420 CIVIL, 1980
II'1 ASSUMPSIT and `I'RI?SFl1S
ORDER OF COURT
AND NOW, this ~ day of October, 1980, ur~on
consideration of Plaintiff's application for exteri:~ i~~ti, :h~'
said tapplication hereby granted -~.L `~,j` ~ ;~ ,' ,
i c ~ c ~_ 1
f i~ ~.~, /
`~ N
~'~_ z~-~ ~ .?-~ - ..
~ ~~. ~ 1
\ i`. '
( ~J
~~
J ..` ~~ ~
~~7
~~~ °~~~~x/~f~=. n~11- ~ ~ V
~~~~
~V~~~~ I
?1,
{U -~"i
1 ~ ~q ~" t~,,.
'~ EX?IIBIT "B '
"w.7~
~,\
WILLIAT~2 B . TENNY and
SHIRLEY A. TENTIY, his wife
Plaintiffs
vs.
JOHN W . PRAHL A.NP, CO . , INC . ,
Defendant
.. IT1 THE COt?RT OF COMMON PLEAS OF
.. Ct;l`~IBED.LP.ND COU?`1TY , PENNSYLVANIA
1`I0. 420 CI~TIL ]_980
.. CI~~IL ACTLON - LA?a
.. IN ASSti~fPSIT and TRESPASS
DEFENDANT'S BRIEF CONTRA
PLAINTIFFS PP.ELIP'IINARY OBJECTIONS
TO PRELIMINARY OBJECTIONS
HISTORY OF THE C.aSE
This is an action in trespass and assumpsit filed
February 4, 19850, in which plaintiffs` amended complaint alleges
an agreement of sale for_ purchase of plaintiffs' land c~~as breached
by defendant. Preliminary objections were filed by defendant in-
eluding a demurrer, a motion to strike and motion for a more
specific pleading. Defendant filed preliminary objections to
the preliminary objections on April 23, 1980. These were:-
l.) A Motion to Strike the Demurrer because
the demurrer contains impertinent matter and
is a conclusion of law.
2.) A Motion to Strike the I"~otion to Strike
because the motion is to strike some but not
all of the allegations and becal~se the motion
was improper.
3.) A Motion to Strike the Motion for a More
Specific Pleading because the motion c~.oes not
specify precisely what is incomprehensible about
an incomprehensible allegation.
..-
The Court by Order of Court dated. October 2, 180 granted
leave to plaintiffs to list the preliminary objections for argu-
ment even though the 240 day rule had been violated. The plain-
tiffs failed to comply with the Order of Court and instead only
listed the Preliminary Objections to the Preliminary Objections
for argument.
ISSUES
I. Are the preliminary objections to defendant's
preliminary objections ~~i_thout merit?
II. Should this case be dismissed for plaintiffs'
failure to bring the case to issue as required
by Rule 212-4(2)(a) of the Cumberland County
Rules.
DISCUSSION
I. Plaintiffs` Preliminary 0 bjections to Defendant's
Preliminary Objections should be stricken.
All three of plaintiffs' preliminary objections are
motions to strike which motion is proper to attack a pleadin
because of lack of conformity to law or rule of court of because
of scandalous or impertinent matter. R.C.P. 1017(b)(2).
None of defendant`s preliminary objections fail to conform
to the law or a rule of court. There is nothing scandalous or
impertinent contained therein; the urge to characterize plaintiffs
preliminary objections in more vivid terms was resisted by defendant.
Specifically, defendant's preliminary objections were
(1) a Demurrer in which it was alleged the plaintiffs did not
-2-
r ~ .-
plead a breach of contract nor did the plaintiffs allege an
obligation on the part of the defendant to reconvey the land,
which allegation is essential to plaintiffs' cause of actian;
(2) a Motion to Strike the damage claim as the improper measure
of damages was pleaded; and (3) a Motion for a r~lore Specific
Pleading because the allegations of Paragraph 8 were incompre-
hensible, in addition, the plaintiffs pleaded only part of the
contract and further plaintiffs hinted at but never categorically
accused defendant of forgery.
The merits of defendant' s preliminary obj ecta_ons are
not before the court. The only issue is whether plaintiffs' pre-
liminary obj ectians are proper under R.. C . P . 1017 (b) (2) . It is
apparent that, if sustained, the preliminary objections filed. by
defendant would require plaintiffs to amend. the Complaing before
defendant would be required to answer.
Plaintiffs have not alleged facts to show the defendant's
preliminary objections were improperly pleaded and therefore the
preliminary objections to the preliminary objections are properly
stricken.
II. This action should be dismissed because
of Plaintiffs' failure to comply c~ith
the Order of Court directing plaintiff
to list the preliminary objections for
argument.
On October 2, 1980, the Court ordered plaintiffs to list
the preliminary objections for argument within 30 days. This
-3-
rl
t ,~
order followed the notice from the prothonotary that the 240 day
requirement for certification for trial had not been. met. On the
30th day the plaintiffs only listed the preliminary objections to
the preliminary objections for argument and thereby violated the
Order of Court which required plaintiffs to list all objections
for argument.
Local Rule 212-4(2)(a) governs this case. If the nre-
liminary objections remain undisnosed of, the case will not be
at issue for months. This is a situation caused by plaintiffs and
would have been avoided had the Order of Court been complied with.
The time has come for Mr. Teeny to be required to comply
with the rules of court if he insists on practicing law. He may
claim to be financially unable to retain counsel but every time
he embarks on one of his escapades he forces his opponent to incur
unnecessary expenses. Mr. Prahl s'nould have his situation con-
sidered by the court, he should not be required to defend this
case further. The case would be dismissed for failure to comply
with the Order of Court had a member of the bar represented Mr.
Tenny and Mr. Tenny should be in no better position because he
represented himself.
Respectfully submitted
Jo M. Eakin
At rney for Defendant
-4-
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
N0. X120 CIVIL, 1980
IN ASSUMPSIT and TRESPASS
JURY TRIAL DEMANDED
ANSWER TO DEFENDANT'S "PRELIMINARY OBJECTION"
AND NOW, this 2nd day of February, 1981, comes the
Plaintiff WILLIAM B. TENNY and SHIRLEY A. TENNY, his wife, pursuant
to Pa. R.C.P. No. 1028, and submits the following:
1. As to Defendant's averments stated under the
heading "DEMURRER":
(a) It is denied that Count I - In Assumpsit
fails to state a cause of action on which relief may be
granted in that "1.) Count I - There is no breach of any
contract alleged in this count." for the following reasons:
(1) Paragraphs 1 and 2 of the Amended Complaint
identify the above-captioned parties;
(2) Paragraph 3 of the Amended Complaint
establishes the existence of an agreement between the
said parties, identifies the agreement with particular-
ity, and incorporates by reference an attached copy of
the writing upon which the cause of action is based;
(3) Paragraphs 6 and 8 of the Amended Complaint
show the material parts of the agreement upon which
Plaintiff's cause of action stated in Count I - In
Assumpsit is based;
(~) Paragraph 7 of the Amended Complaint
- 1 -
shows that Plaintiff demanded Defendant comply with
the express terms of the agreement;
(5) Paragraph 8 of the Amended Complaint
shows that the Defendant refused and failed to comply
with the express terms of the agreement;
(6) Paragraphs 9, ga, 9b, and 9c of the
Amended Complaint show the exact nature of the damages
suffered by Plaintiff as a result of Defendant's
refusal and failure to comply with the express terms
of the agreement;
(7} Paragraph 10 of the Amended Complaint
shows the exact amount of damages suffered by Plaintiff
as a result of Defendant's breaching the agreement; and
(8) Paragraph 11 of the Amended Complaint
specifies the relief to which the Plaintiff deems
himself entitled; and
(b) It is denied that Count II - In Assumpsit fails
to state a cause of action on which relief may be granted in
that "2.) Count II - The agreement referred to does not
give plaintiffs the right to require defendant to convey
the land to them." for the reason that the allegation con-
tained in paragraph 2.), as aforesaid, is a conclusion of
fact for the Jury to decide as the agreement clearly shows
that there were certain promises made between the parties,
and the Plaintiff intends to present evidence to show just
exactly what the promises made were, in the alternative.
2. As to Defendant's averments stated under the
heading "MOTION FOR MORE SPECIFIC PLEADING":
- 2 -
(a) That paragraph 8 is incomprehensible, Defen-~
dam's paragraph l.), is denied in that paragraph 8 of the
Amended Complaint states that: "8. Defendant refused and
failed to comply with the aforesaid terms of the "agreement"
and also paragraph ~} of the "agreement" which provides that
"Settlement is to be made on or before March 15, 1974, and
paragraphs 1, 2, and 3 of DEFENDANTS' INTERROGATORIES, FIFTH
SET, entered on or about February 23, 1978, in the above-
named Court as indexed to No. 3536 CIVIL, 1977, are incor-
porated herein by reference.".
There is nothing incomprehensible about
Plaintiff's paragraph 8 as above-stated. While the averment
does include the technical procedure of incorporating matter
already on record in this Court, Defendant is not pro se and
its counsel is fully competent to understand and interpret
the procedure used by Plaintiff and authorized by Pa. R.C.P.
No. 1019(g)l;
(b) That Exhibit A is not the complete agreement
between the parties and plaintiffs should be required to
plead the entire agreement, Defendant's paragraph 2.), is
denied in that Plaintiff's pleading is in no manner insuf-
ficient because it does not plead evidence. Plaintiff al-
ready has attached the writing upon which Counts I and II
1The pertinent part of Pa. R.C.P. No. 1019(8) is as follows:
"(g) ~ ~ ~. A party may incorporate by reference any matter
of record in any State or Federal court of record whose records
are within the county in which the action is pending, or any
matter which is recorded or transcribed verbatim in the office
of the prothonotary, clerk of any court of record, recorder of
deeds or register of wills of such county."
- 3 -
are based which fulfills the requirement of Pa. R.C.P.
No. 1019(h)2. By way of further answer, Defendant has
every right to plead in its answer and new matter, if any,
whatever it deems to be the complete agreement between the
parties;
(c) That in Count III the plaintiffs should be
ordered to plead categorically whether they allege (1)
defendant forged plaintiffs' name, (2) whether defendants
caused a notary to complete a false acknowledgment and (3)
what is the difference, if any, between the so called
"proposed easement" and the "facsimile" referred to in
this Count, Defendant's paragraph 3.), is denied because
none of the averments contained in Defendant's paragraph
3.), as above stated, are essential to Count III - In
Trespass and because paragraphs 26, 30, 33, and 35 of
Plaintiff's Amended Complaint already state facts which
clearly show the difference between the "proposed easement"
and the altered "facsimile". A dictionary will provide the
balance of information sought by Defendant's paragraph 3.).
By way of further answer, Defendant has every
right and privilege to file an answer to Count III together
with new matter and a notice to plead in order to place
additional matter in issue.
2Pa. R.C.P. No. 1019(h) provides as follows:
"(h) A pleading shall state specifically whether any claim
or defense set forth therein is based upon a writing. If so,
the pleader shall attach a copy of the writing, or the material
part thereof, but if the writing or copy is not accessible to
him, it is sufficient so to state, together with the reason,
and to set forth the substance of the writing."
- 4 -
(d) That the documents referred to in Count III
are not attached to the Complaint and without them the
allegations of this Count are incomprehensible, Defendant's
paragraph 4.), is denied because, while it is not clear to
Plaintiff which allegations Defendant is referring to in
paragraph 4.), as above stated, the averments in Count ITI
of the Amended Complaint show that all of the documentary
evidence is a matter of public record and specify official
references as to their whereabouts.
By way of further answer, "as the pleading of
evidence is improper, it necessarily follows that a pleading
is not insufficient because it does not plead evidence '~
~ ~ „3
WHEREFORE, Plaintiff demands that the Defendant's
PRELIMINARY OBJECTION be overruled.
Respectfully submitted,
. ; _;
WILLIAM! B. ENN for`P aintiff
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
3See 2 Anderson Pa. Civil Practice, p.493, §1017.118
- 5 -
WILLIAM B. TENNY and IN THE COURT OF COMMON PLEAS OF
SHIRLEY A. TENNY, his wife, .CUMBERLAND COUNTY, PENNSYLVANIA
.Plaintiff
N0. ~I20 CIVIL, 1980
vs.
IN ASSUMPSIT and TRESPASS
JOHN W. PRAHL AND CO., INC.,
Defendant JURY TRIAL DEMANDED
A F F I D A V I T
COMMONWEALTH OF PENNSYLVANIA
. SS
COUNTY OF CUMBERLAND
WILLIAM B. TENNY and SHIRLEY A. TENNY, being duly sworn
according to law, depose and say that the matters contained in
the foregoing ANSWER TO DEFENDANT'S "PRELIMINARY OBJECTION"
of even date herewith are true and correct to the best of their
knowledge, information, or belief.
r ,
6 j; ~ i
WILLIAM B. TENNY, affiant
t
SHIRLEY, A. TENNY, a~'fiant
SUBSCr-sIBLL' AND SWORN TO BEFORE
ME this 2nd day of February, 1981
' ~ ~ ~) _
r ,; ___
-~~-•-" ~' ;~ ~ ~ ~ ~ ~' '~ ~; ANA,' 'i~~iH~r?fOftU hdOiAftY PU6LIC
l~/ NOTAI~- P BLIC Gph~;P Hill. CORD, CUM6ERLAND COUPJTT
MY ~~LiP~1MlSS,QN EXt 1;2E~ MAR. 10, 19II&
My C Omml S S 1 On EXp 1r e S : Member. ~e'~nsy~van~a ~lssori~t!on of P}o?arir.•s
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANTA
N0. X420 CIVIL, 1980
IN ASSUMPSIT and TRESPASS
JOHN W. PRA HL AND CO., INC.,
Defendant JURY TRIAL DEMANDED
PROOF OF SERVICE
I certify that I am this day serving a copy of
ANSWER TO DEFENDANT'S "PRELIMINARY OBJECTION" of even date here-
with upon the persons and in the manner indicated below, which
service satisfies the requirements of Pa. R.C.P. No. 1027.
Service by first class mail
addressed as follows:
Mr. John M. Eakin, Esquire
Eakin & Eakin, Atys. At Law
Market Square Building
Mechanicsburg, Pa. 17055
Dated: February 2, 1981
t`
WILLIAM B. TEN Y -for .Plaintiff
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
WILLIAM B. TENNY and
SHIRLEY A. TEN1`1Y, his wife,
Plaintiff
IN THE COURT OF COMl`![ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 420 CIVIL, 1980
vs. .
I?~1 ASSUl`~~[PSIT and TRESPASS
JOHN W. PRAHL AND CO., INC.,
Defendant JURY TRIAL DEMAPdDED
N O T I C E
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 Amended 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 ma,y proceed without you
and a judgment may be entered against you by the court without
further notice for any money claimed in the Amended Complaint,
or for any other claim or relief reauested by the Plaintiff. You
may lose money or property or other rights important to ,you.
YOU SHOULD TAKE 1HIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR
THIRD FLOOR
CUMBERLAND COUNTY COURT HOUSE
CARLISLE, PENNSYLVANIA 17013
_,
TELEPHONE; 717 24~,-X1~133
,~ f~ ` ~.
,~ / ~ ,
G,Y_~'LL'IAM B . TENNY ,.~-
2309 Market Street ~
Camp Hill, Penna. T,'~011
Tel: 717 737-1600
t~aILLIAM B. TENNY and IN THE COURT OF COMMON PLEAS OF
SHIRLEY A. TENNY, his wife, . CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
No. 420 CIVIL, 1980
vs.
IN ASSUMPSIT and TRESPASS
JOHN W. PRAHL AND CO., INC., .
Defendant . JURY TRIAL DEMANDED
AMENDED COMPLAINT
TO THE HONORABLE, THE JUDGES OF SAID COiJRT:
AND NOW, this 10th day of March, 1980, comes the
Plaintiff, WILLIAM B. TENNY and SHIRLEY A. TENNY, his wife, pro
se, pursuant to Pa. R.C.P. §1028, and avers that:
1. The Plaintiff is WILLIAI`.'I B. TENNY and SHIRLEY A.
TENNY, his wife, adult individuals residing at 2309 Market Street,
Camp Hi11, Pennsylvania.
2. ,The Defendant is <JOHl`1 W. PRAHL AND C0 . , INC . , a
corporation organized and existing under the laws of the Common-
wealth of Pennsylvania, having its principal place of business
at 1001 Homestead Avenue, Harrisburg, Pennsylvania.
3. Plaintiff and Defendant entered into an Agreement
Of Sale dated Februa.r,y 4, 1974 (hereinafter referred to as
"agreement"), whereby the Defendant agreed to purchase from the
Plaintiff a parcel of land containing eleven unimproved building
lots shown as Lots No. 74, 75, 76, 77, 78, 88, 89, g0, 92, 93,
and 94 on Plan No. 6, Ridgeland, which Plan is recorded in the
Office for the Recording of Deeds in and for Cumberland County,
Pennsylvania, in Plan Book 20, Page 12; a copy of the said
"agreement" is attached hereto as E:`~HIBIT "A" and incorporated
herein by reference.
4. Plaintiff conveyed to Defendant a good and marketable
- 1 -
title to the said parcel of land, free and clear of incumbrances
except easements and restrictions of record, and the Deed dated
June 7, 1974, was accepted by the Defendant.
COUNT I - IN ASSUMPSIT
5. The above paragraphs 1, 2, 3, and 4 are incorporated
herein by reference and stated as though fully written.
6. The "agreement" specifies a purchase price for the
said parcel o.f land of Eighty One Thousand Six Hundred Eighty
----------- ------------------------------- Dollars $ 81,680.00
"faith terms as follows
Deposit on the signing of this agreement,
receipt o f which is hereby acknowledged --------- $ 2,000.00
Cash on or before Settlement ______________________ $ 18x000.00
Note and/or first mortgage by bank
of which $21,000.00 is to be held
in escrow as hereinafter provided --------------- $ 61,680.00
TOTAL SALES PRICE ---------------------------- $ 81,680.00".
7. In March of 1874 Plaintiff demanded that settlement
be made in accordance with the said terms of the "agreement".
8. Defendant refused and failed to comply with the
aforesaid terms of the "agreement" and also paragraph 4 of
the "agreement" which provides that "Settlement is to be made
on or before March 15, 1974, and paragraphs 1, 2, and 3 of
DEFENDANTS' INTERROGATORIES (FIFTH SET) entered on February 10,
1978, together with paragraphs (1), (2), and (3) of PLAINTIFF'S
ANSWERS TO DEFENDANTS' INTERROGATORIES, FIFTH SET, entered on or
about February 23, 1978, in the above-named Court as indexed to
No. 3536 CIVIL, 1977, a.re incorporated herein by reference.
9. Because of Defendant's refusal and failure to comply
- 2 -
with the requirements of the "agreement", as aforesaid, Plaintiff:
a. was unable to secure a Mortgage Release from
Cumberland Valley Savings and Loan Association of Carlisle,
Pennsylvania, covering the premises which is the subject
of the "agreement", causing the Plaintiff's ultimate
financial collapse and loss of valuable property upon
some of which Defendant is currently building dwelling
houses;
b. suffered the loss of income in the nature of
real estate listings and sales commissions promised as an
inducement for Plaintiff to sign the "agreement" to be paid
jointly through the employing broker; and
c. suffered the loss of borrowing power and finan-
cial independence resulting in Plaintiff's dependence upon
Defendant's "an,y style" performance of the "agreement" and
Defendant's Default Judgment entered. against Plaintiff at
Cumberland County Court No. 3536 CIVIL, 1977, as stated
below i.n paragraph 20a incorporated herein by reference.
10. As a result of the aforesaid, the Plaintiff has
been damaged as follows:
a. Fair market value of lost property
upon some of which Defendant is currently
buildinp~ dwelling houses:
b. Loss of income promised as
inducement for Plaintiff to sign the
"agreement":
c. Defendant's Default Judgment
against Plaintiff for "Construction Costs":
$ 88,975.00
$ 33,ooo.oa
$ 59,130.00
- 3 -
d. Defendant's Default Judgment
against Plaintiff for "Interest Expense": $ _15870.00
TOTAL $ 196,975.00
11. Defendant is liable to the Plaintiff in the
amount of $196,975.00.
WHEREFORE, Plaintiff demands judgment against the
Defendant in the amount of $196,975.00 with interest.
COUNT II - IN ASSUMPSIT
12. The above paragraphs 1, 2, 3, and 4 are incorporated
herein by reference and stated as though fully written.
13. The "agreement" was written by Plaintiff, its
officer(s), agent(s), or employee(s).
14. Paragraph 6 of the "agreement" was represented
by John W. Prahl, President of the Plaintiff corporation, to
Plaintiff to be a "buy-back" provision-who therefore signed
the agreement on that basis having no reason to believe otherwise.
15. Paragraph 6 of the said "agreement" provides for
circumstances arising subsequent to June 7, 1974, whereby the
Defendant is unable to construct dwelling houses as planned on
all or certain lots shown to be part of the parcel of land more
particularly identified in paragraph 3 above; and paragraph 6
of the "agreement" is incorporated herein by reference.
16. In the Spring of 1975 the Department of Environ-
mental Resources (hereinafter referred to as DRR) invoked a ban
on all new sewer line construction in Hampden Township, Cumberland
County, Pennsylvania, which prohibited construction of new sewer
lines for the Defendant's proposed 11 house real estate develop-
rrlent project throughout the balance of 1975 and thereafter until
- 4 -
the ban was finally lifted by DER.
17. Because of the said DFR ban on construction of new
sewer lines in Hampden Township, Cumberland County, Pennsylvania,
the Defendant was unable to construct single family dwelling
houses as planned on any lot included in the aforesaid parcel
of land.
18. Plaintiff has on several occasions offered payment
and demanded that Defendant accept payment for the said parcel
consistent with paragraph 6 of the said "agreement" incorporated
herein b,y reference.
19. Defendant has failed and refused to perform in
accordance with the reauirements of paragraph 6 of the said
"agreement" incorporated herein by reference.
20. Because of Defendant's refusal and failure to
perform as required by the "agreement", as aforesaid, the
Plaintiff:
a, suffered the loss of the use, benefit, and
control of the r~remises which is the subject of the "agree-
ment", resulting in Defendant's entering a Default Judgment
against Plaintiff at Cumberland County Court No. 3536
CIVIL, 1977; and
b. suffered the loss of income in the nature of
real estate listings and sales commissions promised as an
inducement for Plaintiff to sign the "agreement" to be paid
jointly through the employing broker.
21. As a result of the aforesaid, the Plaintiff has been
damaged as follows:
a. Defendant's Default Judgment
- 5 -
against Plaintiff for "Construction Costs": $ 59.,130.00
b. Defendant's Default Judgment
against Plaintiff for "Interest Expense": $ 15,870.00
c. Loss of income promised as
inducement for Plaintiff to sign the
"agreement": $ 33,000.00
TOTAL $ 108,000.00
22. Defendant is liable to the Plaintiff in the
amount of 108,000.00.
WHEREFORE, Plaintiff demands judgment against the
Defendant in the amount of $108,000.00 with interest.
COUNT III - IN TRESPASS
23. Plaintiff incorporates herein by reference and
states as though fully written the above paragraphs 1, 2, 3,
and ~4.
24. A proposed Easement dated June 3, 1972 (herein-
after referred to as "proposed easement"), was attached to a
Complaint filed against the above-named Plaintiff and indexed
to Cumberland County Court No. 3536 CIVIL, 1977, a matter of
record incorporated herein by reference.
25. The "proposed easement" provides, in part, that the
Defendant, "Company its successors, assigns and lessees" (sic)
be granted by the Plaintiff "the right, privilege and authority
to consturct, maintain and operate a sewer line and such
fixtures and apparatus essential to such operation, through and
under the property" (sic) located in the Township of Hampden,
County of Cumberland, State of Pennsylvania, owned at all times
relevant to this Amended Complaint by the above-named Plaintiff,
- 6 -
William B. Tenn,y and Shirley A. Tenn,y, his wife, by Deed recorded
in the Cumberland County Recorder of Deeds Office in Deed Book
A, Volume 21, Page 858, a matter of record incorporated herein
b,y reference.
26- The "proposed easement" was never knowingly and
willing-fly acknowlledged and delivered by the Plaintiff to the
Defendant as no duly acknowledged original typewritten instru-
ment exists or ever did exist.
27. The Defendant has previously denied under oath
that the "proposed easement" or any part thereof was ever duly
recorded in the Cumberland County Recorder of Deeds Office, and
paragraph 1 (SECOND SET) and paragraphs 6 and 7 (FOURTH SET)
of DEFENDAI~ITS' INTERROGATORIES entered on February 10, 1978,
together with paragraph (1) SECOND SET and paragraphs (6)
and (7) FOURTH SET of PLAINTIFF'S ANSWERS TO DEF'ENDANTS' INTER-
ROGATORIES entered on or about February 23, 1978, in the above-
named Court and indexed to No. 3536 CIVIL, 1977, matters of
record incorporated herein by reference.
28. On June 7, 1974, a copy of the "proposed easement"
(hereinafter referred to as "facsimile") was presented to the
Cumberland County Recorder of Deeds for indexing and recording,
as indexed in the Recorder's Docket "Entry Book 1974 to 1975" at
No. 1-1575, a matter of record incorporated herein by reference,
b,y the Defendant, its officer(s), servant(s), agent(s), or
employee(s).
2g. The "facsimile" is recorded in the Cumberland
County Recorder of Deeds Office i_n Miscellaneous Book 209,
pages 671 and 672, a matter of record incorporated herein by
- 7 -
reference.
30. The "facsimile", recorded as aforesaid, has been
altered to include an acknowledgment by the Plaintiff who has
never knowingly and willingly acknowledged and delivered the
altered "facsimile" to the Defendant.
31. The altered "facsimile" is indexed in the Cumberland
County Recorder of Deeds "Grantor Index To Miscellaneous Book A
to Z, from Jan 1, 1973 to Dec 31, 1977", under index tab T to Z,
page 2, line 6, and under the indexed Name of Tenny, Shirley A.
and William B. and the other name of Hampden Twp Sewer Auth.,
a matter of record incorporated herein by reference.
32. The altered "facsimile" is indexed in the Cumberland
County Recorder of Deeds "Czrantee Index To Miscellaneous Book A
to Z, from Jan 1, 1973 to Dec 31, 1977", under index tab H, I, J,
K, page 3, line 31, and under the indexed name of Hampden Township
Sewer Authority and the other name of William B. Tenny, a matter
of record incorporated herein by reference.
33. The date on the altered "facsimile" shows it to have
been signed and the signatures witnessed on June 3, 1972, while
the acknowledgment added, as aforesaid, contains June 7, 197+,
as the date it was taken; the two said dates written on the
altered "facsimile" are more than two years apart.
34. The Defendant, its officer(s), servant(s), agent(s),
or employee(s), at all times subsequent to December 7, 197, has
had full knowledge that the altered "facsimile" had been recorded
as aforesaid.
35. The signatures contained on the altered "facsimile"
purporting; to be those of the Plaintiff are different from the
8 -
signatures contained on the "proposed easement"
36. The Plaintiff never knowingly and willingly signed
the altered "facsimile".
37. Fraud and deceit of Defendant, its officer(s),
servant(s), agent(s), or employyee(s) consists of the following:
a. Knowingly and willingly obtaining Plaintiff's
property, as aforesaid, without having paid just compensation
for the taking;
b. Knowingly and willingly obtaining Plaintiff's
property, as aforesaid, without their knowledge and consent;
c. Knowingly and willingly presenting for recording
an unrecordable instrument;
d. Deliberate concealment, as aforesaid, of the
existance of an altered instrument;
e. Deliberate deception, as aforesaid, as to the
indexing and recording of the altered "facsimile";
f. Misrepresenting, as aforesaid, the "proposed
easement" as being one and the same as the altered "facsimile";
and
g. Such other fraud and deceit as probably never
will be known to the Plaintiff.
38. Because of the fraud and deceit of Defendant, its
officer(s), servant(s), agent(s), or employee(s), as aforesaid,
the Plaintiff had no reason to know or believe that it had lost
property or rights as by the altered "facsimile".
39• As a result of the fraud and deceit of Defendant,
its officer(s), servant(s), agent(s), or employee(s), as afore-
said, the Plaintiff has been damaged by the Defendant as follows:
- 9 -
a. Loss of .42 Acres of land
$ 8,00.00
b. Interest to date: $ 3,177.00
c. Unliquidated damages in excess of: $ 10,000.00
WHEREFORE, Plaintiff demands judgment against the
Defendant in the amount of $11,577.00 liquidated damages and
in excess of $10,000.00 unliquidated damages.
~ ~ ~' r `
av.
WjI~L~AM T N Y fo~' ,z tiff
A F F I D A V I T
/;
COMMONWEALTH OF' PENNSYLVANIA `'`
COUPITY OF CUMBERLAND
SS
WILLIAM B. TENNY and SHIRLEY A. TENNY, being duly sworn
according to law, depose and say that the matters contained in
the foregoing AMENDED COMPLAINT are true and correct to the
best of their knowledge, information, and belief. -~=>
~ 1 .?
i ~' 4-
~ ~
ILL AM B. TENNY of ian~_.
SHIRLEY~,fA. TENNY,, ffiant
SUBSCRIBED AND SWORN TO BEFORE
ME this 10th day of March, 1980
~ ~~
j~
NOTARY PUBLIC
'~
My Commission Expires : _ ' ~~'~%'~t',~~__~___~~'~ ~ ~ ~~_j
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
- 10 -
•
AGRFL'1~?E?~'T OF SAI,F
;nlxL; AGRFEI~IENT, made. this 4th day of February, 1974 between.
LJ:CI,T.,~r~~~^, I3. TL:NNY and :~ItIFT.Lr'~' 7'~. `.PENNX, hi.s wife, hereinafter
i:•~.~i"~1~:~~r..,cl to ,as •L17e Gr_antor_•r:~, and JUAN W. k~RAI3L and CO. , inc. ,
lxc:rein.af_ter referred to as the Grantee is as follows:
`!'lie C,.r.antee hereby agrees to ptarchase from the Grantors the
properties known as Lots 74, 75, 76, 77, 78, 86, 89, 90, 92,
93, and 94 as shown on Plan No. 6, Ridgeland, which Plan is
r.c~c:ox•ded i_n the Office for_ the Recording of Deeds in incl. far
c.~cunl,r>rJ_c~rieq Cnu nty, I'ennsylvtania, in Plan Book 20, Pcic]E• J.2
for and i.n consideration of the sum of_ Eighty One Thousand Six
ITundrecl 1?_i_ghty ------------------------ Dollars $ 51.,680.00
with t~erm~ as follows
1_;~~posi.t on the signing of_ this agreement,
r_•r~cc~..pt o f which is hereby acknowledged --- --- $ 2 , 000.00
Ca.s11 on or before Settlement ---------------- --- $ ]_8,000.00
Note anci/or first mortgage by bank ..
of w!~ri.ch $21, 000.00 is to be held
in escrow as hereinafter provided --------- --- $ 61,680.00
,- ~,~
!-Q~ P_ 1 0~ ~ ~ ~ 2_S'
;~c:~rir'~;t:1~,;~^!'1' Of' SALF. (Continued? m~~.de this 4th day of Fobru~a.ry, 1974
3. PosseCsi.on is to be given at settlement except as
hE~reinafter provided.
4.. Settlement is to be ;ma.de on or before Marc11 15, ]..974.
5. 'I'rans:Eer ta.xE~s shall be shared equally between the
C;rar~t_ors ,_!nd. the Grantee.
6. In the event that the Grantee is unable to obtain a.
building perzn:it to construct <-~ singl_e family dwelling house on
~i particular lot or lots, the Grantors hereby agree to reimburse
the Grantee a sum equal to the va)_ue of the• lot on a front f_-ootage
1:,,:~cai_z w:l.t~l~ rc~~~pe~ct to thca total consid~z-at'ionF co:t"ner. lots ar..e!
to be computed on the basis of their short side frontage only.
7. Grantors accept .responsibility for, and agree to make
payment of, all funds required to construct improvements in
accordance with all Township and Utility requirements and all
other miscellaneous costs arising therefrom until the street
suctions and sewers are accepted by the appropriate authorities.
Aforesaid l;scrow Fund consisting of $21,000.00 shall k~e paid to
G.r~ntors in stages as follows:
~:kJt1,(3er ~/~;,
~~
AGREEAZENT OF SALE (Continued) made this 4th day of February, 1974
9. Grantee agrees to permit Grantors to remove top soil
stock pile which is located on Lots 77 and 78 within 30 days
from date 'of notice given by Grantee.
9
10. Grantee hereby agrees to grant William B. Tenny, Broker,
an exclusive authorization to sell contract for a period not to
exceed 90 days from the date that carpeting is installed in each
dwelling house to be constructed upon the lots as heretofore
described. Further, in consideration for consummating a sale.,
Grantee agrees to pay a Brokerage fee of 5% of the gross sales
price of the said dwelling houses.
~~
~:ntf 1~i !T ~~
c~
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF CUMBERLAND
WILLIAM B. TENNY, being duly sworn according; to law,
deposes and says that he has this day served a copy of AMENDED
COMPLAINT of even date herewith upon the persons and in the
manner indicated below, which service satisfies the requirements
of Pa. R.C.P. §1027.
Service by First Class Mail
Addressed as follows:
Mr. John M. Eakin, Esg.
Eakin R: Eakin, At,ys . At Law
Market Square Building
Mechanicsburg-, Pa. 17055
John W. Prahl and Co., Inc.
1001 Homestead Avenue
Harrisburg, Penna.17101
Dated: March 10, 1880
SUBSCRIBED AND SWORN TO BEFORE
ME this 10th day of March, 1880
NOT RY PUBLIC
My Commission Expires:
~~ ~ ~ ~ _.
W LL AM B. N a iant
1
t> >~'~' ~' ~L1~'~ ~ ] ~ /
-~
a
`^TILLIAPZ B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
. IN THE COURT OF COr~'IT~ZON PLEAS OF
CUMBERLAND COUNTY, PEPINSYLVANIA
No. 1420 CIVIL, 1980
IN ASSUMPSIT and TRESPASS
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS TO PRELIMINARY OBJECTIONS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
AND NOW, this 23rd day of April, 1980, comes the
Plaintiff, WILLIAM B. TENNY and SHIRLEY A. TENNY, his wife, pro
se, pursuant to Pa. R.C.P. §1017(a), and submits the following:
MOTION TO STRIKE OFF "DEMURRER"
Plaintiff moves your Honorable Court to strike off
defendant's preliminary objections entitled "DEMURRER" for the
following reasons:
1. Paragraph l.) of defendant's "DEMURRER" lacks
conformity with Pa. R.C.P. §1017 and is impertinent matter in
that:
(a) The allegation thereby being made is not made
against the sufficiency of the claim itself but is in the
nature of a claim against the content of the complaint which
must be raised in a motion for a more specific pleading
consistent with the requirement of Pa. R.C.P. §1017; and
(b) The specific allegation that a breach of
contract has occurred is, in the instant case, a conclusion
of fact which need not be pleaded, and thus, the said
paragraph l.) is impertinent matter.
2. Paragraph 2.) of defendant's "DEMURRER" lacks con-
- 1 -
fortuity with Pa. R.C.P. §§ 1029 and 1030 and is impertinent matter
in that:
(a) The allegation thereby being made is a general
denial of Count II of plaintiff's Amended Complaint and is
therefor a responsive pleading which must be pleaded with the
answer consistent with the requirements of Pa. R.C.P. §1029;
(b) The allegation thereby being made is an
affirmative defense which must be pleaded in a responsive
pleading under the heading "New Matter" consistent with the
requirements of Pa. R.C.P. §1030; and
(c) The allegation thereby being made is not made
against the sufficiency of the claim itself but is a con-
elusion of fact regarding evidence not yet in issue, and
thus, it is impertinent matter.
WHEREFORE, your Honorable Court should strike off
defendant's "DEMURRER"
MOTION TO STRIKE OFF "MOTION TO STRIKE°'
Plaintiff moves your Honorable Court to strike off
defendant's preliminary objections entitled "P'IOTION TO STRIKE"
and assigns the following reasons:
1. Defendant's "MOTION TO STRIKE" lacks conformity to
Pa. R.C.P. §1017 because it requests the court to strike only
certain specified paragraphs of the Amended Complaint while the
said rule makes the motion available to strike off not less than
the entire pleading.
2. Defendant's "MOTION TO STRIKE" lacks conformity to
Pa. R.C.P. §1017(b)(2) because it fails to raise any objection
for which the motion to strike off a pleading is made available.
- 2 -
3. Paragraph 3.)(1) of defendant's "MOTION TO STRIKE"
lacks conformity with Pa. R.C.P. §1028(b) because the defendant
failed to raise the objection in its initial preliminary object-
ions dated February 29, 1980, even though the matter objected to
was then clear~_y a part. of the record.
WHEREFORE, your Honorable Court should strike off
defendant's "MOTION TO STRIKE".
MOTION TO STRIKE OFD` "MOTION FOR MORE SPECIFIC PLEADING"
Plaintiff moves your Honorable Court to strike off
defendant's preliminary objections entitled "MOTION FOR MORE
SPECIFIC PLEADING" and assigns the following reasons:
1. Paragraph l.) of defendant's "MOTION FOR MORE
SPECIFIC PLEADING" lacks conformity with Pa. R.C.P. §1028 because
if' fails to state specifically in what manner the opposing
averment is incomprehensible.
2. Paragraph 2.) of defendant's "MOTION FOR MORE
SPECIFIC PLEADING" lacks conformity to Pa. R.C.P. §1029(a)
because it is a general denial of paragraph 3 of the Amended
Complaint which must be pleaded in a responsive pleading and
because it fails to refer specifically to the paragraph in which
the averment admitted is set forth.
3. Paragraph 3.) of defendant's "MOTION FOR MORE
SPECIFIC PLEADING" lacks conformity to Pa. R.C.P. §1028(b)
because the defendant failed to raise the objection in its "MOTION
FOR MORE SPECIFIC PLEADING" initially filed on or about February
29, 1980, even though the matter objected to was then clearly a
part of the record.
4. Paragraphs 3.) and 4.) of defendant's "MOTION FOR
- 3 -
MORE SPECIFIC PLEADINCx" lack conformity to Pa. R.C.P. §1017 which
is limited to "Pleadings Allowed" because the information which
defendant wants ordinarily must be obtained pursuant to Pa.
R.C.P. §§ ~-1001, et sea, which provides the prescribed procedure
for "Depositions and Discovery".
WHEREFORE, your Honorable Court should strike off
defendant's "MOTION FOR MORE SPECIFIC PLEADINr".
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
- 4 -
.l.,
Respectfully subrYi,~.~'ed,
WILLIA~1 B . TENNY an
SHIRLEY A. TENNY, his wife,
Plaintiff_
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
IN THE COURT OF CO`~inON PLEAS OE
CUMBERLAND COUNTY, PENNSYL~.TANIA
No. 420 CIVIL 1980
IN ASSUi~PSIT & TRESPASS
JURY TRIAL DEMANDED
PRELIMINARY OBJECTION
AND NOj~1, this ~~day of rebruary, 1980, the defendant files
the following preliminary objection.
DEi'IURwT~E~
l.) Plaintiff failes to state a course of action on which
relief may be granted in Count I because the contract relied upon
does not give the right to plaintiff to compel defendant to reconvey
the lots involved.
SECOND COUNT
2.) Plaintiff improperly brings this action fount II)in tres-
pass to cancel an allegedly forged document; this court has no jur-
isdiction of a matter which must be brought in equity.
3.) Plaintiff fails to state a cause of action on which relief
may be granted (Count II) because there is no allegation the defen-
dant's agent, officer or employee forged any documents.
-1-
M
MOTION FOR i~ORE SPECIFIC PLEADING
4.} Plaintiff fails to state how the damages (both counts)
were calculated and there is no means by which defendant can deter-
mine what theory of recovery plaintiff is pursuing.
5.) Plaintiff failed to .attach the documents referred to in
Count II to the complaint; without these documents, tl~e allegations
of Count II are incomprehensible.
Respectfully Submitted
ey for Defendant
_2_
FEI.Et?-AFFlC€
~~ T1~~ PR~TNbNtY~ARY
CL'~#~,~RL,~fit~ GQU~17Y
~'ENN~YLVANiA
~-~e 1~ ~ ~e ~M 'BO
...
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs
JOHN W. PRAHL AND CO., INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 420 CIVIL, 1980
IN ASSUr1PSIT and TRESPASS
PRELIMINARY OBJECTION
AND NOW, this 3rd day of April, 1980, the defendant files
the following preliminary objection.
DEMURRER
The complaint fails to state a cause o.f action on which
relief may be granted in that:
l.) Count I - There is no breach of any contract alleged
in this count.
2.) Count II - The agreement referred to does not give
plaintiffs the right to require defendant to convey the land to
them.
MOTION TO STRIKE
Plaintiff moves to strike the following;
l.) The damage claims in Count I (Paragraph 10) as these
damages cannot be recovered on the cause of action stated in this
count, assuming arguendo, that a breach of contract is alleged.
-1-
r • • ~ / _•
2.) The damage claims in Count II (Paragraph. 20 & 21) for
the following reasons:
a.) Paragraph 20(a) and Paragraphs 21(a) and 21(b) -
There was no default judgment intered against plaintiffs in the
case at 3536 Civil 1977.
b.) Paragraph 20(b) and Paragraph 21(c} - A claim for
loss of commissions which plaintiffs would receive for selling
land owned by defendants is inconsistent ~,eith Count II which
purports to state a cause of action to collect for failure to
reconvey the land to the plaintiffs.
3.) The damage claims in Count III (Paragraph 39) as (1) there
is no allegation plaintiffs lost .42 acres of land and (2) "unliquid-
ated damages in excess of $10,000.00" cannot be awarded on the cause
of action set forth in this Count.
i~10TI0N FOR MORE SPECIFIC PLEADING
Defendant moves for a more specific pleading in the following:
1.) Paragraph 8 is incomprehensible
2.) Exhibit A is not the complete agreement between the ;parties
and plaintiffs should be required to plead the entire agreement.
3.) In Count III the plaintiffs should be ordered to plead
categorically ~,~hether they allege (1) defendant forged plaintiffs'
name, (2) whether defendants caused a notary to complete a false
acknowledgment and (3) what is the difference, if any, between the
so called "proposed easement" and the "facsimile" referred to in
this Count.
_2-
.. -~ -
4.) The documents referred to in Count III are not attached
to the Complaint and without them the allegations o_f_ this Count
are incomprehensible.
Respectfully Submitted
-'
Attorney for Defendant
-3-
~~~.~~-o~~icg~ v
~ T~1~ .t~~T~~Y
~~'M8~'~L~~~ ~t~
;~~~S~u#N~A
~~ ~ 11 ~~+ '~fl
SMERI~F'S t•~e~r~.Jr,~J
CUMMONV~lEALTH OF fEf~~F1SYLVANIA In tl~e Court of Common Picas of
C .LINTY OF CUMBERLANf) C:.rmk_rerian~i County, Pennsylvania
420 Civil 1980
William B. Tenny and Shirley A. Tenny his No~----------.--------------
wife Complaint in Assumpsit and Trespass
vs.
John W. Prahl and Co., Inc.
riOf`+ rl fj. f~<"'!~i, ~fiE'TIC'I, A^.'ll0 i ,,, r'. C;UiA~ ,.,'cl~~n aCCOrClil;rJ tv' ~~W Say"o ih~a h'; Rr/;.i:,
cllilc~':;rrt _:~%]iCh 8nd IrrU'I`/ ?Ui l(if, ,:itil 'i iti';rlt`U U;~c.r}~i^i~li, l0 ~rVl',: -_.lOtll~~.~Za11~~.nd_ Co., InC.
`` ,
1'
__.----._--_. , i.U~ 4'b' .i U :~!it? ic: ~~t(;ut~--------------rr~l C~ir~i (~i i~`;d~1, r., v,...
iheri.'~l~ri' C%f)atll~C~ i;?c St ,,fit{ _ Dallphln r t
~~ani<;, ic; ser.~e tl~ v~~itl~iir _._------~c~p_l~nt-~-z~-~ssu~tpa~~--and--~re-s-pas-s--- ---------
Gn ___-~b-~a~20~--X9$0-._- , tiii; offir:P v~,:a in rerei~,*,. o~ the at~_acl-iec!
n ~~
reiurn from ___Ilaugtain_-------------------_.___ ~,ouniy, renrtsylv~;n!~~.
Shr:riii's Costs:
nocl:eting 10.75
Service
20.55
31.30 Pd. by
Atty.
2-27-80
Sworn arrJ subscriL;ec1 to t~efore me
tfris _~,~...-L -- day r,f /~).~~_~_.~~:~_
. ~Tl ~ ~ Z t (1 /.
~.{~ _ ~ Prothonotary
SG ~.fiS4Vcl"S:
'r.','~` ~~ .. '~
-1~
Fi0C3ERT B. FAII_OR, `.i:~;riff
c ,
5-1,.
COMMiONWEALTH OF PENNA ;
COUNTY OF DAUPHIN ;
SHERIFF'S RETURN
NO. l~20 Civil 1980
1980
AND NOW: February 7 ~ }~ ~ at 335 P M. SERVED THE
WITHIN COMPLAINT IN ASSITI4IPSIT & TRESPASS UPON
John W. Prahl & Co., Inc.
HANDING TO John W. Prahl
BY PEkSONALLY
A TRUE ATTESTED COPY OF THE ORIGINAL COMPLAINT IN ASSIINII'SIT & TRESPASS
AND MAKING KNOWN TO Him THE CONTENTS THEREOF AT
1001 Homestead Ave., Harrisburg, Dauphin County, Penna.
SO ANSWERS
his residence,
-~~ , ,-
SHERIFF OF DAUPHIN COUNTY, PENNA.
BY
DEPUTY .SHE IFF
Sworn and subscribed to
1g8o
before me this 8th day of February aU¢t~c
//, it
PROTHONOTARY
Sheriff's Cost j$ ?~~ ,~
,,
~~
%` ~'i'~
~, ,
,," ~~~
~~ .. ;~~~
In The Court of Common Pleas of Cumberland County, Pennsylvania
William B. Tenny and Shirley A. Tenny, his wife
VS.
John W. Prahl and Co., Inc.
420 Civil
No- -------------------- --------------------------------------------~ 19--80--
~, . ,
r - ~ Y..r-'~ `3~
Sheriff of Cumberland County, Pa.
Af~'idavit of Service
Now, ._--:__February___5_-----•---••-•,,,,,,,,~ 1~.R....., I, SHERIFF OF CUMBERLAND COUNTY, PA., do
hereby deputize the Sheriff of ---_-Dauphin __ _ _ County to execute this Writ,
this deputation being made at the request and risk of the Plaintiff.
Now- -----------------------------------------------------••----------------------•---•~ 19------------~ at --------------------- ------ o'clock ------------M. served
the within ----------------•-------•----•------•--•---•---------------......---•---•-------------------•------------------ -
upon .---•------------------------------------
at ---------------------------------------••--••----------------•-•------------••••---------•------------------•----------------- -•--------------------------------------------------- ------
by handing to -_-..-....-•---------------•----------•-•-•---•------------•--••-•--------------------------------------------------------------------------------------------------
a copy of the original ---------------------•----------------•-------------------
and made known to -_-------------------------•---------•---.....---•---------------------------------------------•--- the contents thereof.
So answers,
Sworn and subscribed before
me this ---------.-- day of -------------•---------------------- 19-----•--
Sheriff of County, Pa.
COSTS
SERVICE ------------------------ $
MILEAGE ----------------------
AFFIDAVIT ------------------
---------------------------------------
$
Farm D--4
~nIILLIAM B. 'PENNY and
SHIRLEY A. TENNY_, his wife,
Plaintiff
vs.
JOHN jnr, PRAHL AND CO. , INC . ,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUPITY, PENNSYLVANIA
. No. 420 CIVIL, 1980
IN ASSUMPSIT and TRESPASS
ORDER OF COURT
AND NOW, this day of October, 1980, upon
consideration of Plaintiff's application for extension, the
said application i `; hereby grantedny.L _1 ~ s~~~ ~,,~~--
[[yy ~ °~-
3 l ~ ~ / fir.: ~-'
v (,
~' J .
i°
t
~" '
.
„„y _
~ _
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
JOHN W. PRAHL AND CO., INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 420 CIVIL, 1980
. IN ASSUMPSIT and TRESPASS
JURY TRIAL DEMANDED
APPLICATION FOR EXTENSION
AND NOW, this 2nd day of October, 1980, comes the
Plaintiff, WILLIAM B. TENNY and SHIRLEY A. TENNY, his wife, pro
se, and present their application as follows:
1. The instant action was commenced upon filing of a
Complaint on February 4, 1980, TWENTY (25) DAYS latter the
Defendant finally got around to filing Preliminary Objections
dated February 29, 1980.
?_. In an effort to cure the said objections, the
Plaintiff filed an Amended Complaint as of course on March 10,
1980. TWENTY (24) DAYS latter on April 3, 1980, the Defendant
filed another dilatory pleading entitled Preliminary Objections.
3. For the purpose of delineating the issues, on
April 23, 1980, the Plaintiff filed Preliminary Objections
To Preliminary Objections.
4. The Defendant appears to have abandoned its
Preliminary Objections filed on February 29, 1980, and on April
3, 1980, as the Defendant has failed to list its objections for
argument.
5. Furthermore, the Court has not determined the
preliminary objections as filedl.
1See Pa. R.C.P. §1028(c)
- 1 -
6. Additionally, in no manner, whatsoever, wa.s the
Plaintiff notified of the Pa, Supreme Court Order dated November
19, 1979, and Cumberland County Order Of Court dated August 21,
1980, until on or about September 18, 1880, upon receipt of a
postage card, a copy of which is attached hereto as EXHIBIT "A"
and incorporated herein by reference, from the Cumberland County
Prothonotary's Office, Court House - Carlisle, Fa. 17013.
7. The amount of time which elapses between the
commencement of this action and final judgment has no affect,
whatsoever, upon the unified Judicial System and is therefore
not a procedural matter within its discretion.
8. The Defendant has not complained of delay.
g. Delay in prosecuting the instant action is due
solely to the Defendant's inaction on its dilatory pleadings,
as aforesaid, and is in no manner due to any act or failure
to act by the Plaintiff.
10. Unless this petition is granted, the Plaintiff
will be denied substantive legal and constitutional rights
resulting in irreparable harm and damage to them.
WHEREFORE, the Plaintiff demands sufficient time in
which to prosecute the instant action to final judgment.
Respectfully submit/t
j -,--
~ ~ G..--
IAM B. ~"EN~fi~'" f~" ~'laa'ntiff
WILLIAM B. TENNY
2309 Market Street
Camp Hill, Penna. 17011
Tel: 717 737-1600
- 2 -
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
JOHN W. PRAHL AND CO., TNC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 420 CIVIL, 1980
IN ASSUMPSTT and TRESPASS
JURY TRIAL DEMANDED
A F F I D A V I T
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF CUMBERLAND .
WILLIAM B. TE
sworn according to law,
statements contained in
true and correct to the
and belief.
SUBSCRIBED AND SWORN TO BEFORE
ME this 2nd day of October, 1980
ant
NO^lARY PUBLIC
~; ,.._.fi
My Commission Expires : ~%~°,~ { ~~,~~ ~ / ~ / C~-~--
ANY and SHIRLEY A. TENNY, being duly
depose and say that the foregoing
i;heir Application For Extension are
best of their knowledge, information,
.,
wK .
r
PROTHONOTARY'S OFFICE
Court House -Carlisle, PA 17013
~aA
lapsed since the institution of this action;
~ thus only 4 remain to comply with the 240-day rule established
" by Supreme Court Order of November 19, 1979. Unless this case is
listed on the Trial Ready List (Rule 212-5) or the Trial List (Rule 214-1)
within the next mss, the court shall require that good cause be
shown why the case should not be dismissed f//o}}r w/~ant of prosecution.
Plaintiff ~~ - ~ Defendant C-Ic~ ~(l pig ~~qG
~f~ ~ . mac. /'
Date /.~ 190 #~ Civil 19~
0\ C~.ttin o .,,, ,~ t ~ C . ~ ~(~ ~~i Z.i
Prothonotary
p6 aMT~R
Your vote is - ' ~,..~
. ~ ~,~
your voice. "e _~~
say `' S~fr10t~;1t3g' ' ~~'
:, t
nn V
~ 30 ~ ~cvc,k~t- S~
~~ ~~
1~a~/
EXHIBIT "A"
ti~:IILLIAM B . TENNY and
SFIIRLEY A. TENNY, his wife,
Plaintiff
IN THE COURT OF COMMON PLEAS OIi'
CUMBERLAND COUNTY, PENNSYLVANIA
. ~~ ~ c1vIL 1980
VS. ,. 1.
Ii1 ASSU1`•'IPSI.T ~ 'E•~f:.Sf'~'~S~S
JOHN W. PRAHL AND CO., INC.,
Defendant JURY TRIAL DEMANDED
N O T I C E
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 b,y attorney and filing in writing; with the court your defenses
or objections to the claims set forth against you. Vou are
warned that if you fail. to do so the case may proceed without •you
and a judgment ma.y be entered against ,you by the court without
further notice for any money claimed in the Complaint, or for an,y
other claim or relief requested by the Plaintiff. You may lose
money or property or other .ri-ghts important to ,you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT A?~-'FORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELO~~°:T TO FIi~1D OUT WHERE YOU CAN GET LEGAL HELP .
COURT ADMINISTRATOR
THIRD FLOOR
CUI~JBERLAND COUNTY COURT HOUSE
CARLISLE, PENNSYLVANIA 17013
TELEPi30NE : 717 249,-11.:3.3=
,, -: ,,
B y ,~!, ~~ -~ ,'
W~LIA~B . n NYC ~''~~" •' --------
2309 1`2arket Street
Camp Hi11, Penna. 17
Tel: 717 737-1600
WILLIAM B. TENNY and IN THE COURT OIL' COMMON PLEAS OF
SHIRLEY A. TENNY, his wife, CUP-~BERLAND COUNTY, PENNSYLVANIA
Plaintiff
c~~d CIVIL, 1980
vs.
IN ASSUMPSIT and TRESPASS
JOHN W. PRAHL AND CO., INC.,
Defendant JURY TRIAL DEMANDED
TO TIDE HONORr'1BLE, THE JUDGES OF SAID COURT
AND NOW, this 4th da,y of February, 1980, comes the
Plaintiff, WILLIAM B. TENNY and SHIRLEY A. TENNY, his wife, pro
se, a,nd avers that:
1. The Plaintiff is WILLIAM B. TENNY and SHIRLEY A.
TENNY, hi_s wife, adult individuals residing at 2309 Market Street,
Camp Hill, Pennsylvania.
2. The Defendant is JOHN W. PRAHL AND CO., I~ZC., a
corporation organized and existing under the laws of the Common-
wealth of Pennsylvania, having its principal place of business
at 1001 Homestead Avenue, Harrisburg, Pennsylvania..
3. Plaintiff and Defendant entered into an Agreement
Of Sale dated February 4, 1974 (hereinafter referred to as
"agreement"), whereby the Defendant agreed to purchase from the
Plaintiff a parcel of land containing e7_even unimproved building
Lots shown as Lots No. 74, 75, 76, 77, 78, 88, 89, 90, 92, 93,
and 94 on Plan No. 6, Ridgeland, which Plan is recorded in the
Office for the Recording of Deeds in and for Cumberland County,
Pennsylvania, in Plan Book 20, Page 12; a copy of the said
"a.greement" is attached hereto as EXHIBIT "A" and incorporated
herein b,y reference.
4. Consistent with the said "agreement", Plaintiff
- 1 -
conveyed to Defendant a good and marketable title, free and
clear of encumbrances except easements and restrictions of
record, and the Deed dated June 7, 1974, was accepted b,y the
Defendant.
COUNT I - IN ASSUMPSIT
5. The above paragraphs 1, 2, 3, and 4 are incorporated
herein by reference and stated as though fully written.
6. Paragraph 6 of the said "agreement" provides for
c=i_rcumstances arising subsequent to June 7, 1974, whereby the
Defendant is unable to construct dwelling houses as planned on
all. or certain lots shown to be part of the parcel of land more
particularly identified in paragraph 3 above; and paragraph 6
of the said "agreement" is incorporated herein by reference.
7. In the Spring of 19'75 the Department of Environ-
mental Resources (hereinafter referred to as DER) invoked a ban
on a.ll new sewer line construction in Hampden Township, Cumberland
County, Pennsylvania, which prohibited construction of new sewer
lines for the Defendant's proposed 11 house real estate develop-
ment project throughout the balance of 1975 and thereafter until
the ban was finally lifted by DER.
8. Because of the said DER Ban on construction of new
sewer lines in Hampden Township, Cumberland County, Pennsylvania,
the Defendant was unable to construct single family dwelling
houses as planned on any lot included i.n the aforesaid parcel
of land.
9. Plaintiff has on several occasions ~~ffered payment
and demanded that Defendant accept payment for the said parcel
consistent with paragraph h of the said "agreement" incorporated
herein by reference.
- 2 -
10. Defendant has failed and refused to perform in
accordance with the requirements of paragraph 6 of the said
"af;reernent" incorporated herein by reference .
11. Because of Defendant's failure a.nd refusal to
pe.r.form as required by the "agreement", as aforesaid, Plaintiff
has been damaged as follows:
a. Defendant's Default Judgment
against Plaintiff for "Construction Costs": $ 59,130.00
b. Defendant's Default Judgment
against Plaintiff for "Interest Expense": ]_5,870.00
c. Other Consideration promised
Plaintiff' for the "agreement": 33,000.00
TOTAL $ 108,000.00
12. Defendant is liable to the Plaintiff in the
amount of $108,000.00.
WHEREFORE, Plaintiff demands judgment against the
Defendant in the amount of $108,000.00 with interest.
COUNT II - IN TRESPASS
13. The above paragraphs 1, 2, 3, and 4 are incorporated
herein by reference and stated as though fully written.
14. A proposed Easement dated June 3, 1972 (herein-
after referred to as "proposed easement"), was att;ached to
a Comp1_aint filed against the above-named Plaintiff and indexed
to Cumberland County Court No. 3536 C=ivi7, 1977, incorporated
herein by reference.
15. The "proposed easement" provides, in part, that the
Defendant, "Compa.ny its successors, assigns and =1_essees" (sic)
be granted by the Pla-int,iff "the r.-i~;ht, privilege and authority
to consturct, maintain and operate a. sewer line and such
- 3 -
fixtures and apparatus essential to such operation, through and
under the property" (sic) located in the Township of Hampden,
County of Cumberland, State of Pennsylvania, owned at a.ll times
relevant to this Complaint by the above-named Plaintiff, William
B. Tenny and Shirley A. Tenny, his wife, by Deed recorded in the
Cumberland County Recorder of Deeds Office in Deed Book A,
Volume 21, Page 858, incorporated herein b,y reference.
15. The "proposed easement" was never knowingly
and willingly acknowledged and delivered by the Plaintiff to the
Defendant as no duly acknowledged original typewritten instru-
ment exists or ever did exist.
lE. The Defendant has previously denied under oath
that the "~:roposed easement" or any part thereof was ever duly
recorded it the Cumberland County Recorder of Deeds Office, and
paragraph 1 (SECOND SET) and paragraphs 6 and 7 (FOURTH SET)
of "Defendants' Interrogatories" entered on Febr~zary 10, 1978,
together with paragraph (1) (Second Set) and. paragraphs (6)
and (7) (Fcurth Set) of "Plaintiff's Answers To Defendants'
Interrogatories" entered on or about February 23, 1978, i.n
the above-named Court and indexed to No. 3536 Civil, 1977, are
incorporated herein by reference.
17. On June 7, 1974, a copy of the "proposed easement"
{hereinaftEr referred to as "fa.csimile") was presented to the
Cumberland County Recorder of Deeds for indexing and recording,
as indexed in the Recorder's Docket "Entr,y Book 1974 to 1975" at
No. 4575, incorporated herein by reference, by the Defendant,
its servant(s), agent(s), or employee(s).
18. The "facsimile" is recorded in the Cumberland
County Recorder of Deeds Office in Miscellaneous Book 209,
- 4 -
pages 671 and 672, incorporated herein b,y reference.
19. The "facsimile", recorded as aforesaid, has been
altered to include an acknowledgment by the Plaintiff who has
never knowingly and willingly acknowledged and delivered the
altered "facsimile" to the Defendant.
20. The date on the altered "facsimile" shows it to have
been signed and the signatures witnessed on June 3, 1972, while
the acknowledgment added., as aforesaid, contains June 7, 1_97~I,
a.s the date it was taken; the two said dates written on the
altered "facsimile are more than two years apart.
21. The Defendant, at all times subsequent to December
7, 1.9711, has had full knowledge that the altered "facsimile"
had been recorded as aforesaid.
22. The signatures contained on the altered "facsi_rnile"
purporting to be those of the Plaintiff are different; from the
signatures contained on the "proposed easement".
23. The Plaintiff never knowingly and willingly signed
the altered "facsimile".
21~. The Plaintiff never knowingly and willingly received
and accepted payment from the Defendant, or anyone else, for i,he
altered "facsimile", their land to be occupied b,y the proposed
sewer line to be constructed by the Defendant, and the property
r_i_ghts thereby obtained b,y the Defendant from the Plaintiff, as
aforesaid.
25. The altered "facsimile" is indexed in the Cumberland
County Recorder of Deeds "Grantor Index To Miscellaneous Book A
to Z, from Jan 1, 1973 to Dec 31, 1977", under index tab T to Z,
page 2, line 6, and under the indexed Name of Tenny, Shirley A.
and William B. and the other name of Hampden Twp Sewer 9uth.,
- 5 -
incorporated herein b,y reference.
26. The altered "facsimile" is indexed in the Cumberland
County Recorder of Deeds "Grantee Index To Miscellaneous Book A
to Z, from Jan 1, 1973 to Dec 31, 1977", under index tab H, I, J,
K, page 3, line 31, and under the indexed name of Hampden Township
Sewer Authority and the other name of William B. Tenny,
incorporated herein by reference.
27. Because the altered "facsimile" was concealed
under the other name of "Hampden Twp Sewer Auth." and under
the Grantee indexed name of "Hampden Township Sewer Authority"
as stated in above paragraphs 24 and 25, respectively; because
the Defendant misrepresented the "proposed easement" as being;
one and the carne as the altered "facsimile" as stated in the
above paragraph 14; and because the Defendant denied under oath
that the "proposed easement" or any part thereof had ever been
recorded as stated i_n the above paragraph 16, the P]_aitiff had
no reason to know or believe that it had lost property or rights
as by the altered "facsimile".
28. Because of the taking of Plaintiff's real property
and rights as stated in the foregoing paragraphs 13, et sec{,
the Plaintiff has been damaged by the Defendant as follows:
a. Loss of .42 Acres of land; $ 8,400.00;
b. Interest to date: 3,177.00;
c. and Punitive Damages: 34,731.00,
TOTAL
$ 46,308.00.
WHERE~~ORE, Pl~_iintiff demands judgment against the
Defendant in the amount of $46,308.00 with interest.
~~s ~'"-.
WILLIAM B. TENNY and
SHIRLEY A. TENNY, his wife,
Plaintiff
vs.
~TOHN PRAHL AND CO., INC.,
Defendant
IN THE COURT OF' COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
l~,~G CIVIL, 1.980
. IN ASSUMPSIT and TRESPASS
JURY TRIAL DEMAP~dDED
A F E I D A V I_T
COMMONWEALTH OF PENNSYLVANIA
SS
COUNTY OF CUMBERLAND
WILLIAM B. TENNY and SHIRLEY A. TENNY, being duly sworn
according to la.w, depose and say that the matters contained in
the foregoing COMPLAINT of equal date herewith are true and
correct to the best of their know,gledge, information, and belief.
~ / ~ r
~TLLIA~~ENP~Y , i~nt
SHIRLEY ENNY, aff~ ht~
SUBSCRIBED AND SWORN TO BEFORE
ME this ~Ith day of February, 1980
NOTARY PUBLIC
,'
My Commission Expires: ~ ,~.~~~-~, _~U ~-
AGRI;EME'~'T OF SA.LT'.
THIS AGREEMENT, made this 4th day of February, 1974 between
WILLIA.^~1 B. TENNY and SHIRLEY A. TENNY, his wife, hereinafter
referred to as the Grantors, and JOIIN W. PRAHL and CO., Inc.,
hereinafter referred to as the Grantee is as follows:
The Grantee hereby agrees to purchase from the Grantors the
properties known as Lots 74, 75, 7G, 77, 78, 88, 89, 90, 92,
93, and 94 as shown on Plan No. 6, Ridgeland, which Plan is
recorded in the Office for the Recording of Deeds in and for
Cumberland Cou nty, Pennsylvania, in Plan Sook 20, Page 12
far and in consideration of the sum of Eighty One Thousand Six
Hundred Eighty ------------------------ Dollars $ 81,680.OC
with terms as follows:
Deposit on the signing of this agreement,
receipt of which is hereby acknowledged ------ $ 2,000.00
Cash an or before Settlement ------------------- $ 18,000.00
Note and/or first mortgage by bank
of which $21,000.00 is to be held
in escrow as hereinafter provided ------------ $ 61,680.00
TOTAL SALES PRICE -- ---------------------- $ 81,680.00
W I T N E S S E T H:
WHEREAS, Grantors and Grantee, having bound themselves to the
full consideration for said Lots before certain improvements
have been completed and having agreed to certain other consid-
erations for the _. transfer of the Lots,
NOW, THEREFORE, in consideration of these premises and intending
to be legally bound, the parties mutually covenant and agree
as follows:
1. If financing is not procured as shown, deposit will
be returned to the Grantee.
2. Grantors shall convey to Grantee a good and marketable
title, free and clear of any encumbrances except easements and
restrictions of record.
EXHIBIT ''A"
Page 1 of 3 Pages
AGREEMENT OF SALE (Continued) made this 4th day of February, i~74
3. Possession is to be given at settlement except as
hereinafter provided.
4. Settlement is to be made on or before March 15, 1974.
5. Transfer taxes shall be shared equally between the
Grantors and the Grantee.
6. In the event that the Grantee is unable to obtain a
building permit to construct a single family dwelling house on
a particular lot or lots, the Grantors hereby agree to reimburse
the Grantee a sum equal to the value of the lot on a front footage
basis with respect to the total consideration; corner lots are
to be computed on the basis of their short side frontage only.
7. Grantors accept responsibility for, and agree to make
payment of, all funds required to construct improvements in
accordance with all Township and Utility requirements and all
other miscellaneous costs arising therefrom until the street
sections and sewers are accepted by the appropriate authorities.
Aforesaid Escrow Fund consisting of $21,000.00 shall be paid to
Grantors in stages as follows:
Upon completion of Sewer Lines $ 4,400.00
Upon completion of Curbs 3,800.00
Upon completion of Underground Utilities 2,200.00
Upon completion of Street Paving 9,600.00
Upon completion of miscellaneous work 1,000.00
TOTAL --------------------------------- $ 21,000.00
8. Grantors agree to provide areas for excess fill and top
soil disposal. Grantors further agree to provide additional fill
in cases where needed. All costs arising from the transporting
of fill and/or top soil shall be at the Grantee's expense except
in the case of excess top soil which shall be transported to
Grantors' property at the Grantors' expense and at their option.
EXHIBIT "A"
Pane 2 of 3 Panes
AGREEMENT OF SALE (Continued) made this 4th day of February, 1974
9. Grantee agrees to permit Grantors to remove top soil
stock pile which is located on Lots 77 and 78 within 30 days
from date of notice given by Grantee.
10. Grantee hereby agrees to grant William B. Teeny, Broker,
an exclusive authorization to sell contract for a period not to
exceed 90 days from the date that carpeting is installed in each
dwelling house to be constructed upon the lots as heretofore
described. Further, in consideration for consummating a sale.,
Grantee agrees to pay a Brokerage fee of 50 of the gross sales
price of the said dwelling houses.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above written.
L~i~nes~
/,
r
7i ~, (" ~
Witness
' ~ ~~ ~~ ~~
,, ' ~~- ; r ~ (SEAL )
;J-o~iri i~7~ra~a~, inc.
;,John W. Prahl, President
:r--'
/~ ;
i
'~ z
~~'~ ~ y'~~ _ / ~ ~ ~%~ (SEAL)
illrain Tenri~ %
(SEAL)
/~./c.c. Lam:°~ -- _~') c ter'-F: I,.c_~-c.-.
irley Aj. Tenny
EXIII3IT "A"
-~ ;
`~
PRAECIPE FOK LISTING CASE FOR ARGI.`~IENT
(Must be typewritten and submitted in duplicate-
TO THE PROTHONOTARYjOF CUMBERLAND COUNTY:
Please list the within matter foI r the next:
Pre-Trial Argument Court
Argument Court
CAPTION OF GASP.
(entire caption must he stated in full)
WILLIAM B. TENNY and
SHIRLEY A. TENi~IY, his wife,
(Plaintiff)
vs.
JOHN W. PRAHL AJD CO., INC.,
(Defendant)
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 420 CIVIL, 1980
IN ASSUMPSIT and TRESPASS
;~ _
, JURY TRIAL DEMANDER-. - -
r_.
No. 4 2 0 Civil _ -- __-_-- I y 8 0-
1. State matter to be argued (i. e., plaintiff's motion for new trial,
defendant's demurrer to complaint, etc.): pl~.intif f' s PRELIMINARY
OBJECTIONS TO PRELIMINARY OBJECTIONS
2. Identify counsel who will argue case:
(a) for plaintiff: WILLIAM B. TENNY
(b) for defendant: JOHN M . EAKIN , E s q .
3. I will notify all parties in writing within two days that this case has been
listed for argument. _
Dated: November 3, 1980
(AttornEy for . , - I -