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HomeMy WebLinkAbout08-43940/ MICHAEL L. BANGS, ESQUIRE I.D. #41263 429 SOUTH 18TH STREET CAMP HILL, PA 17011 (717) 730-7310 MICHELE ADKINS, ) Plaintiff ) VS. ) ANTHONY R. MAGARO and ) JOANNE MAGARO, ) Defendants ) ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.2008 - L l39N CIVIL l vrvl NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 MICHAEL L. BANGS, ESQUIRE I.D. #41263 429 SOUTH 18TH STREET CAMP HILL, PA 17011 (717) 730-7310 ATTORNEY FOR PLAINTIFF MICHELE ADKINS, Plaintiff vs. ANTHONY R. MAGARO and JOANNE MAGARO, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008 - y 3 9 y CIVIL COMPLAINT AND NOW comes the Plaintiff, MICHELE ADKINS, by and through her attorney, Michael L. Bangs, Esquire, and files this Complaint as follows: 1. Plaintiff, MICHELE ADKINS ("Adkins"), is an adult individual who currently resides at 348 Clifford Drive, Martinsburg, West Virginia, but formerly resided at 106 Pine Hill Road, Enola, Cumberland County, Pennsylvania. 2. Defendant, ANTHONY R. MAGARO ("AM"), is an adult individual who resides at 106 Pine Hill Road, Enola, Cumberland County, Pennsylvania. 3. Defendant, JOANNE MAGARO ("JM"), is an adult individual who resides at 107 East Allen Street, Apartment 6, Mechanicsburg, Cumberland County, Pennsylvania. 4. AM and JM jointly own the residence known as 106 Pine Hill Road, Enola, Cumberland County, Pennsylvania ("Property"). 5. Adkins met Dion Magaro, son of Defendants AM and JM, and eventually became engaged to him. 6. While Adkins dated Dion Magaro prior to their engagement, Adkins resided in her home at 118 South Enola Drive, Enola, Cumberland County, Pennsylvania. 1 7. Defendants AM and JM's son Dion Magaro resided at the Property. 8. After the parties became engaged, Defendants AM and JM indicated that if they moved into the Property together, and did certain remodeling and repairs to the Property, that the Property would be deeded to both Adkins and Dion Magaro. 9. Adkins, based upon this promise, moved into the Property. 10. When Adkins moved into the Property, Defendant AM was still residing in the Property. 11. Based upon the promise made by Defendants AM and JM, Adkins commenced spending her own funds for remodeling and repairs beginning in November, 2006. 12. From the period from November, 2006 until October, 2007, Adkins paid for materials and remodeling work done on the Property in reliance upon the promises made by Defendants AM and JM that the Property would be deeded to her and Dion Magaro. 13. Adkins would not have incurred any costs for materials to be used for remodeling and repairs and for specific remodeling and repairs to the Property but for the promises made by Defendants AM and JM that the Property would be deeded to both her and Dion Magaro. 14. Dion Magaro physically assaulted Adkins and was ultimately charged and convicted of the assault. 15. As a result of the assault on Adkins, Adkins moved from the Property and the relationship between Adkins and Dion Magaro ended. 16. Subsequent to the assault, Adkins received further promises from Defendants AM and JM that they would repay her for the money she spent on the remodeling and repairs to the Property and for materials used for that purpose. 17. Some payments were made to Adkins but then those payments stopped. 2 18. Defendants AM and JM have failed or refused to make any further payments or deed the property to Adkins in accordance with the promise that they made prior to her expending funds for materials and labor used in the repair and remodeling of the Property. 19. Adkins has expended approximately $17,000.00 for repairs and remodeling to the Property which was incurred solely and exclusively as a result of the promises made by Defendants AM and JM that the Property would be deeded to her and their son Dion Magaro. 20. Defendants AM and JM knew or should have known, or had reasonable expectation, that their promise to deed the Property to Adkins and their son Dion Magaro would induce Adkins to spend her own funds to remodel and repair the Property. 21. Defendants AM and JM were aware that Adkins was using her own funds to make repairs and remodel the Property based upon their promise to deed the Property to Adkins and their son Dion Magaro. 22. Adkins acted in detrimental reliance upon the promises of Defendants AM and JM to deed the Property to her and Dion Magaro and in doing so suffered damages in an amount in excess of $17,000.00. 23. Defendants AM and JM are estopped from refusing to compensate Adkins for her expenditures to the Property. 24. The promises of Defendant AM and JM to deed the Property to Adkins and Dion Magaro and repay her for her expenditures for remodeling and repairs must be enforced to avoid an injustice to Adkins and a resulting unjust enrichment to Defendants AM and JM. 25. Defendants AM and JM, individually and collectively, should be required to reimburse Adkins for all of her expenditures for the remodeling and repairs to the Property or, in the alternative, to be required to deed her the Property in accordance with their promises. 3 WHEREFORE, Adkins requests this Honorable Court to grant an award as follows: A. Impose a constructive trust on the Property in favor of Plaintiff and against Defendants; B. Direct the Defendants deed the Property to Plaintiff; C. Direct the Defendants to pay Plaintiff for all expenditures she has made for remodeling and repairs to the Property; D. Such other relief as the Court may order. Date:' Respectfully submitted, MICHAEL L. BANGS Attorney for Plaintiff 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 4 VERIFICATION I hereby verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: MI HELE ADKINS 6 It a W MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR PLAINTIFF I.D. NO. 41263 429 SOUTH 18TH STREET CAMP HILL, PA 17011 C717) 730-7310 MICHELE ADKINS, ) IN THE COURT OF COMMON PLEAS Plaintiff ) OF CUMBERLAND COUNTY, PENNSYLVANIA VS. ) NO. 2008-4394 CIVIL TERM ANTHONY R. MAGARO and ) JOANNE MAGARO, ) CIVIL ACTION Defendants ) TO: JOANNE MAGARO 107 East Allen Street, Apt. 8 Mechanicsburg, PA 17055 DATE OF NOTICE: August 25, 2008 IMPORTANT NOTICE Required by Rule 237.1(a)(2) YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 I HAEL L. BANGS Attorney for Plaintiff ?u. -{ [?.? fit. y'E'1 ?? ? f ;. ? j *: .?.. ;??? 1'x'3 ? .. .. ?,?..? "` i •-^t MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR PLAINTIFF I.D. NO. 4126' 4,29 SOUTH 18 H STREET CAMP HILL, PA 17011 L717) 730-73 10 MICHELE ADKINS, ) IN THE COURT OF COMMON PLEAS Plaintiff ) OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) NO. 2008-4394 CIVIL TERM ANTHONY R. MAGARO and ) JOANNE MAGARO, ) CIVIL ACTION Defendants ) TO: ANTHONY R. MAGARO 106 Pine Hill Road Enola, PA 17025 DATE OF NOTICE: August 25, 2008 IMPORTANT NOTICE Required by Rule 237.1(a)(2) YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 ? ?. cII?..Q Q. MICHAEL L. BANGS Attorney for Plaintiff cj:3 ; f Ch CD MICHELE ADKINS, Plaintiff, vs. ANTHONY R. MAGARO and JOANNE MAGARO, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2008-4394 CIVIL TERM PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter our appearance as attorneys for Anthony R. Magaro and Joanne Magaro, Defendants in the above-captioned action. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. Mark E. Halbruner, squire Attorney ID No. 66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Telephone: (717) 731-9600 Date: S? -Z-7 -d2 CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing document on this date by First Class mail to the following: Michael L. Bangs, Esquire 429 South 18`h Street Camp Hill, PA 17011 (Attorney for Plaintiff) GATES, HALBRUNER & HATCH, P.C. Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Telephone: (717) 731-9600 Date: 9 -'?,'7-©2 n? fV - co A Mark E. Halbruner, Esq. Gates, Halbruner & Hatch P.C. 1013 Mumma Road, Suite 100 Lemoyne PA 17043 (717) 731-9600 (Attorney for Defendants) MICHELE ADKINS, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -LAW ANTHONY R. MAGARO and JOANNE MAGARO, NO. 2008-4394 CIVIL TERM Defendants. PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW, come Anthony R. Magaro and Joanne Magaro (hereinafter "Defendants"), by and through their undersigned counsel, and make the following Preliminary Objections to the Complaint in the above-captioned action: 1. INSUFFICIENT SPECIFICITY 1. Michele Adkins (hereinafter "Plaintiff) alleges that she expended "approximately $17,000.00" for labor and materials to repair and remodel the real property owned by Defendants, but she does not itemize the labor and materials or the cost thereof. 2. Defendants cannot adequately respond to the Complaint without an itemized description of the labor and materials that Plaintiff provided and the costs she paid for them. WHEREFORE, Defendants respectfully request that the Court dismiss the Complaint or, in the alternative, order Plaintiff to file an Amended Complaint. II. NONJOINDER OF AN INDISPENSABLE PARTY 3. Paragraphs 1 through 2, above, are incorporated herein by reference. 4. Plaintiff demands equitable relief (i.e. constructive trust and specific performance) relating to an alleged agreement in which Defendants would deed their real property to Plaintiff and Dion Magaro in exchange for certain repairs and remodeling to the real property. 5. Dion Magaro is an indispensable party to this action because any equitable decree would affect his rights under the alleged agreement. 6. Dion Magaro is not a party to this action. WHEREFORE, Defendants respectfully request that the Court strike Plaintiff s demands for equitable relief. III. LEGAL INSUFFICIENCY (DEMURRER) AS TO DEMAND FOR EQUITABLE RELIEF 7. Paragraphs 1 through 6, above, are incorporated herein by reference. 8. Equitable relief is only appropriate where there is no adequate remedy at law. 9. Plaintiff has not alleged any facts to demonstrate why monetary damages cannot be accurately calculated or why monetary damages would otherwise be an inadequate remedy. WHEREFORE, Defendants respectfully request that the Court strike Plaintiffs demands for equitable relief. IV. LEGAL INSUFFICIENCY (DEMURRER) AS TO DEMAND FOR CONSTRUCTIVE TRUST 10. Paragraphs 1 through 9, above, are incorporated herein by reference. 11. Plaintiff demands the imposition of a constructive trust on Defendants' real property. 2 12. A constructive trust is only appropriate where the Defendants obtained the real property under circumstances which render it inequitable for them to retain the ownership and beneficial interest in the property. 13. Plaintiffhas not alleged anything inequitable about Defendants' acquisition of the real property at issue. WHEREFORE, Defendants respectfully request that the Cou strike Plaintiff's demand for a constructive trust. Respectfully omitted, GATES, HA LINER & HATCH, P.C. Mark E. HaIner, Esquire Attorney ID. 66737 1013 MurraRoad, Suite 100 Lemoyne, 17043 Telephond 7) 731-9600 (Attomey`Defendants) Date: _?-Q S2 3 116 CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a true and correct copy of the foregoing document on this date by First Class mail to the following: Michael L. Bangs, Esquire 429 South 18`h Street Camp Hill, PA 17011 (Attorney for Plaintiff) GATES, HALBRUNER & HATCH, P.C. Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Telephone: (717) 731-9600 Date: ???.? . CO2! ?? ?` ??:? 2 ? - s? .? c? j°' ? ?- 'a ? ? ??; ....?. • • `w+ -? a . 7 CASE NO: 2008-04394 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ADKINS MICHELE VS MAGARO ANTHONY R ET AL MARK CONKLIN , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MAGARO JOANNE the DEFENDANT , at 0021:00 HOURS, on the 11th day of August 2008 at 107 EAST ALLEN STREET APT 8 MECHANICSBURG, PA 17055 by handing to JOANNE MAGARO DEFENDANT a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Additional Comments JOANNE MAGARO RESIDES AT APARTMENT 8 - NOT APARTMENT 6 Sheriff's Costs: So Answers: Docketing Service 6.00 15.00 Affidavit . 00 Surcharge 10.00 R. Thomas Kline 00 q'b.JDY Q. 31.00 08/13/2008 MICHAEL BANGS Sworn and Subscibed to By: before me this day epu ty Sheriff of A. D. ti CASE NO: 2008-04394 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ADKINS MICHELE VS MAGARO ANTHONY R ET AL STEVE BENDER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MAGARO ANTHONY R the DEFENDANT , at 0017:15 HOURS, on the 30th day of July 2008 at 106 PINE HILL ROAD ENOLA, PA 17025 by handing to ANTHONY MAGARO DEFENDANT a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Postage -?`b Il,t 6 P ?,,. ? Sworn and Subscibed to before me this of So Answers: 18.00 10.00 .00 r 10.00 R. Thomas Kline .42 38.42 08/13/2008 MICHAEL BANGS By: day Deputy Sheriff A.D. I3Q,'1(?•? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court) CAPTION OF CASE (entire case must be stated in full) MICHELE ADKINS, Plaintiff vs. ANTHONY R. MAGARO and JOANNE MAGARO, Defendants No. 2008-4394 Civil Term 1. State matter to be argued (i.e. plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiff s Complaint 2. Identify all counsel who will argue cases: (a) for plaintiff: Michael L. Bangs, Esquire 429 South 18th Street, Camp Hill, PA 17011 (b) for defendants: Mark E. Halbruner, Esquire Gates, Halbruner & Hatch, 1013 Mumma Road, Suite 100, Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 22, 2008 Date: 1> INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Michael L. Bangs, Esquire Attorney for Plaintiff to C O MICHAELE ADKINS, Plaintiff V. ANTHONY R. MAGARO and JOANNE MAGARO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008 - 4394 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS, GUIDO, JJ. ORDER OF COURT AND NOW, this 20TH day of NOVEMBER, 2008, upon review of the briefs filed by the parties in support of their respective positions, and having heard argument thereon, Defendants' Preliminary Objections are GRANTED in part. The Preliminary Objection raising the failure to join an indispensable party is GRANTED. It is ordered and directed that Dion Magaro be joined as a party Plaintiff pursuant to Pa. Rule of Civil Procedure 2227. In all other respects the Preliminary Objections are DISMISSED. By the.,C.. Edward E. Guido, J. Michael L. Bangs, Esquire Mark E. Halbruner, Esquire Court Administrator sld Pad ?01 NV ?W? AC ME Pti v?'.;i'yi. ; `i :? ?i 4w MICHAEL L. BANGS, Esquire ATTORNEY FOR PLAINTIFF ID #41263 429 South 18TH Street Camp Hill, PA 17011 (717) 730-7310 MICHELE ADKINS, Plaintiff ) IN THE COURT OF COMMON PLEAS and DION MAGARO, Involuntary ) OF CUMBERLAND COUNTY, Plaintiff ) PENNSYLVANIA vs. ) CIVIL ACTION - LAW ANTHONY R. MAGARO and ) JOANNE MAGARO, ) NO. 2008-4394 Defendants ) PRAECIPE TO THE PROTHONOTARY: Pursuant to the Order of Court dated November 20, 2008 and Pa. Rule of Civil Procedure 2227(b), the caption is to be amended to include DION MAGARO as Involuntary Plaintiff. Respectfully submitted, MICHAEL L. BANGS Attorney for Plaintiff 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 Date: )h G U .-??, ??"[?R ? ...?^ \ •? (~ .ice} ?, ? -}'1 1 ? ? . , > ,,, ,, ?y ?+- t' ? l? b '? ?... /k '? .-G, S MICHAEL L. BANGS, Esquire ATTORNEY FOR PLAINTIFF ID #41263 429 South 18TH Street Camp Hill, PA 17011 (717) 730-7310 MICHELE ADKINS, Plaintiff ) IN THE COURT OF COMMON PLEAS and DION MAGARO, Involuntary ) OF CUMBERLAND COUNTY, Plaintiff 1 PENNSYLVANIA VS. ) CIVIL ACTION - LAW ANTHONY R. MAGARO and ) JOANNE MAGARO, ) NO. 2008-4394 Defendants ) PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Please enter a lis pendens against Anthony R. Magaro and Joanne Magaro for the property owned by them located at 106 Pine Hill Road, Enola, Pennsylvania. Respectfully submitted, _ A? MICHAEL L. BANGS Attorney for Plaintiff 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 Date: fi1 -? 7 w -70 Mark E. Halbruner, Esq. Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne PA 17043 (717) 731-9600 (Attorney for Defendants) MICHELE ADKINS, Plaintiff, and DION MAGARO, Involuntary Plaintiff vs. ANTHONY R. MAGARO and JOANNE MAGARO, Defendants. TO: MICHELE ADKINS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW NO. 2008-4394 CIVIL TERM NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. GATES, HALBRUNER, HATCH & GUISE, P.C. C, Mark E. Halbruner, Esquire Attorney ID No. 66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Telephone: (717) 731-9600 (Attorneys for Defendants) Date: /n Lcs!? Mark E. Halbruner, Esq. Gates, Halbruner, Hatch & Guise, P.C. 1013 Mumma Road, Suite 100 Lemoyne PA 17043 (717) 731-9600 (Attorney for Defendants) MICHELE ADKINS, Plaintiff, and DION MAGARO, Involuntary Plaintiff vs. ANTHONY R. MAGARO and JOANNE MAGARO, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-4394 CIVIL TERM ANSWER WITH NEW MATTER AND NOW, come Anthony R. Magaro and Joanne Magaro (hereinafter "Defendants"), by and through their undersigned counsel, and make the following Answer with New Matter to the Complaint in the above-captioned action: ANSWER 1. Admitted. 2. Admitted. 3. Denied. Defendant Joanne Magaro resides in Apartment 8 and not Apartment 6 as stated in the Complaint. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. Defendants did not make the promise described in Paragraph 8 of the Complaint. Before any work began at the Property, Defendant Anthony Magaro told Adkins that he would cover the costs to remodel/repair the bedroom and bathroom occupied by her and Dion Magaro if she provided the original store receipts and work orders. 9. Denied. Adkins moved into Defendants' Property so she could live there for free while renting out her own property at 118 South Enola Drive. 10. Admitted. 11. Denied. Defendants did not make the promise referred to in Paragraph 11 of the Complaint. 12. Denied. Defendants did not make the promises referred to in Paragraph 12 of the Complaint. 13. Denied. Defendants did not make the promises referred to in Paragraph 13 of the Complaint. 14. Denied as stated. Defendants believe and therefore aver that Dion Magaro was assaulted by Adkins and acted in self-defense. 15. Denied as stated. Defendants believe and therefore aver that Adkins assaulted Dion Magaro. 16. Denied as stated. Before any work began at the Property, Defendant Anthony Magaro told Adkins that he would cover the costs to remodel/repair the bedroom and bathroom occupied by her and Dion Magaro if she provided the original store receipts and work orders. 17. Admitted. By way of further answer, Defendant Anthony Magaro paid Adkins for the costs to repair/remodel the bedroom and bathroom occupied by her and Dion Magaro. 2 18. Denied as stated. Defendants refuse to make further payments to Adkins or deed the property to her, and Defendants deny any obligation to do so. 19. Denied. Defendants did not make the promises referred to in Paragraph 19 of the Complaint. Defendants cannot determine how much, if any, of her own funds Adkins expended for repairs and remodeling to the Property in excess of the amount she has already been paid. Furthermore, some of the materials and labor allegedly purchased by Adkins were used to improve her own real property at 118 South Enola Drive, and Adkins removed from the Property some of the materials for which she demands reimbursement. 20. Denied as a conclusion of law. To the extent that a response is required, Defendants did not make the promise referred to in Paragraph 20 of the Complaint. 21. Denied. Defendants did not make the promise referred to in Paragraph 21 of the Complaint. Defendants cannot determine how much, if any, of her own funds Adkins expended for repairs and remodeling to the Property. 22. Denied as a conclusion of law. To the extent that a response is required, Defendants did not make the promise referred to in Paragraph 22 of the Complaint, and Defendants cannot determine how much, if any, of her own funds Adkins expended for repairs and remodeling to the Property. 23. Denied as a conclusion of law. 24. Denied as a conclusion of law. To the extent that a response is required, Defendants did not make the promise referred to in Paragraph 24 of the Complaint. 25. Denied as a conclusion of law. 3 WHEREFORE, Defendants respectfully request that the Complaint be dismissed in its entirety and that judgment be entered in their favor. NEW MATTER 26. Paragraphs 1 through 25, above, are incorporated herein by reference. 27. The Statute of Frauds, 33 P.S. §1 et seq., prohibits the specific enforcement of an agreement for the sale of real property unless it is in writing and signed by the seller. 28. Adkins alleges an oral agreement to convey Defendants' Property in exchange for remodeling and repairs. 29. The Statute of Frauds bars the specific enforcement of the agreement alleged by Adkins. 30. Adkins' claims may be barred by the doctrine of [aches. 31. Adkins' claims may be barred by the applicable statute of limitations. 32. Adkins may have failed to mitigate her damages. 33. Some ofthe materials and labor allegedly purchased by Adkins were used to improve her own real property at 118 South Enola Drive. 34. Adkins removed from the Property some of the materials which she allegedly purchased to remodel and repair it. 35. Some or all of the alleged remodeling and repair expenses were paid from a joint account which included Dion Magaro's funds. 36. To the extent that Defendants are found liable, Adkins should only be awarded the expenses which she paid with her own funds. 4 37. Adkins removed from the Property, without paying for them, various items of tangible personal property that did not belong to her. 38. Defendants' liability, if any, to Adkins should be offset by the value of the materials and other tangible personal property she removed from the Property. 39. Defendants' liability, if any, to Adkins should be offset by the amount which they have already paid her. 40. As more fully explained in Defendants' Preliminary Objections to the Complaint, Adkins has not pleaded facts sufficient to support a claim for specific performance. 41. As more fully explained in Defendants' Preliminary Objections to the Complaint, Adkins has not pleaded facts sufficient to support the imposition of a constructive trust. 42. Adkins had no communications with Defendant Joanne Magaro regarding the subject matter of the Complaint. 43. Defendant Anthony Magaro could not legally bind his joint tenant, Defendant Joanne M agaro. WHEREFORE, Defendants respectfully request that the Complaint be dismissed in its entirety and that judggnent be entered in their favor. Respectfully submitted, GATES, HALBRUNER, HATCH & GUISE, P.C. 2 ? ? ?c` ---9 = ? Mark E. Halbruner, Esquire Date: -Vt -] /p 9 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel in defense of this claim. The language of the document is that of counsel and is not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification: This statement and verification are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. ANTHONY . AGARO Date: 3- S-D CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner, Hatch & Guise, P.C., hereby certify that I served a true and correct copy of the foregoing document on this date as follows: Michael L. Bangs, Esquire 429 South 18`h Street Camp Hill, PA 17011 Via fax transmission to (717) 730-7374 (Attorney for Plaintiff) Dion Magaro 106 Pine Hill Road Enola PA 17025 (Involuntary Plaintiff) GATES, HALBRUNER, HATCH & GUISE, P.C. Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Telephone: (717) 731-9600 Date: f 1^7 /o7( `=; i.;? n 7' ?.? . ! _ - _? .`t°? '?;? ? ??; ? ? i ?^ C e.: --r PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. ® for trial without a jury. ------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) VS. (Defendant) VS. X Civil Action - Law ? Appeal from arbitration (other) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due S days before pretrials No. 2- 6?X, 43q q (I (v + L Term Indicate the attorney who will try case for the party who files this praecipe: KN4L L, (4' - t d/1 1 ?, Indi late trial counsel for other parties if known.- This case is ready for trial. Date: Signed: Y w V.-z/li k L Print Name: I Ct Rd L Attorney for: k T t $ r-C fW is Ce FILED- OF THE P"Z-1 .-Y-7 2009 AUG 21 AM 10: S 1 PP,ivN SYLVANIA' ,??s ov ?C-L i4?1? CO/ sss? ,?? aa9ss? MICHELE ADKINS, Plaintiff, IN THE COURT OF COMMON PLEAS OF and DION MAGARO, Involuntary CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, VS. ANTHONY R. MAGARO and JOANNE MAGARO, Defendants CIVIL ACTION - LAW NO. 2008-4394 CIVIL IN RE: NONJURY TRIAL ORDER AND NOW, this 2 (-' day of August, 2009, a pretrial conference in the above- captioned matter is set for Friday, October 9, 2009, at 9:30 a.m. in the Chambers of the undersigned. BY THE COURT, Michael L. Bangs, Esquire For the Plaintiff Mark Halbruner, Esquire For the Defendants Dion Magaro, Pro Se Involuntary Plaintiff a 7- 0 9 :rlm OF PE ly 2009 AUG 27 AN 10: G 9 CU vi`iiTY MICHELE ADKINS, Plaintiff, IN THE COURT OF COMMON PLEAS OF and DION MAGARO, Involuntary CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW vs. NO. 2008-4394 CIVIL ANTHONY R. MAGARO and JOANNE MAGARO, Defendants IN RE: NONJURY TRIAL ORDER AND NOW, this y ` day of September, 2009, the pretrial conference in the above-captioned matter set for October 9, 2009, is rescheduled for October 15, 2009, at 9:30 a.m. in the Chambers of the undersigned. BY THE COURT, Kevi A. Hess, J. Michael L. Bangs, Esquire /For the Plaintiff ? Mark Halbruner, Esquire For the Defendants ,o- ion Magaro, Pro Se Involuntary Plaintiff rlm LIM eVkiA6_L FILED-10 i I: F OF TNT 2009 SEP -4 PM 12: 33 CUMBQ ? 4 u COUNTY PENNSYLVANIA MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR PLAINTIFF I.D. No. 41263 MICHELE ADKINS 429 South 18'h Street Camp Hill, PA 17011 (717) 730-7310 Email: mikebangs@,verizon.net MICHELE ADKINS, Plaintiff ) IN THE COURT OF COMMON PLEAS and DION MAGARO, Involuntary Plaintiff) OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) NO. 2008-4394 CIVIL TERM ANTHONY R. MAGARO and ) JOANNE MAGARO, ) CIVIL ACTION - LAW Defendants ) PLAINTIFF MICHELE ADKINS' RESPONSE TO DEFENDANTS' NEW MATTER 26. No answer required. 27. Paragraph 27 is a legal conclusion to which no answer is required. To the extent an answer is required, it is denied. 28. Denied as stated. Adkins has claimed a constructive trust on the property based upon representations made by one or more of the Defendants and based upon the actions of Plaintiff in responding to those representations. 29. Denied. Paragraph 29 is a legal conclusion to which no answer is required. To the extent an answer is required it is denied. 30. Denied. Paragraph 30 is a legal conclusion to which no answer is required. To the extent an answer is required it is denied. 31. Denied. Paragraph 31 is a legal conclusion to which no answer is required. To the extent an answer is required it is denied. 32. Denied. Paragraph 32 is a legal conclusion to which no answer is required. To the extent an answer is required it is denied. 33. Denied. It is specifically denied that some of the materials and labor purchased by Adkins which she is claiming in this case were used to improve her own real property at 118 South Enola Drive. 34. Denied. It is specifically denied that Adkins removed from the property some of the materials which she purchased to remodel and repair it and for which she has claimed an amount due and owing from Defendants. 35. Denied as stated. It is denied that any of the remodeling and repair expenses were paid from funds that were owned at all by Dion Magaro. All funds used to purchase the materials were Michele Adkins'. 36. Admitted in part and denied in part. It is admitted that Adkins should be awarded expenses which she paid for with her own funds. It is denied to the extent that this averment suggests that Dion Magaro had any of his own funds in the account from which these expenses were paid. 37. Denied. It is specifically denied that Adkins removed from the property, without paying for them, any items of tangible personal property that did not belong to her. Adkins only removed property that did belong to her. 38. Denied. It is specifically denied that Adkins removed any materials or other tangible personal property that was owned by the Defendants or that they should have any offset for any alleged value for those materials or other tangible personal property. 39. Admitted. 40. Denied. Paragraph 40 is a legal conclusion to which no answer is required. To the extent an answer is required it is denied. 41. Denied. Paragraph 41 is a legal conclusion to which no answer is required. To the extent an answer is required it is denied. 42. Denied. It is specifically denied that Adkins had no communication with Defendant Joanne Magaro regarding the subject matter of the Complaint. 43. Denied. It is specifically denied that Defendant Anthony Magaro could not legally bind his joint tenant, Defendant Joanne Magaro. It is averred that Anthony Magaro had the express authority to bind Defendant Joanne Magaro. WHEREFORE, Plaintiff Michele Adkins requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendants, together with costs of suit. Respectfully submitted, 'MICHAEL L. BANGS Attorney for Plaintiff 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 VERIFICATION PURSUANT TO Pa. R.C.P. 1024(c) I, MICHAEL L. BANGS, Esquire, counsel for Michele Adkins, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief based upon information and documents provided to me by Michele Adkins. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: CHAEL L. BANGS, Esquire CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served the foregoing document by depositing a copy of the same in the United States mail, postage prepaid, at Camp Hill, Pennsylvania, addressed to the following: Mark E. Halbruner, Esquire Gates, Halbrunner & Hatch 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Dion Magaro 106 Pine Hill Road Enola, PA 17025 DATE: lO o IWENDN? K. S UB Paralegal 2 \JF THE OTARY 2009 SEP 14 PM 2, 14 it MICHELE ADKINS, Plaintiff, IN THE COURT OF COMMON PLEAS OF and DION MAGARO, Involuntary CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW vs. NO. 2008-4394 CIVIL ANTHONY R. MAGARO and JOANNE MAGARO; Defendants IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held October 15, 2009, were Michael Bangs, Esquire, attorney for the plaintiff, and Mark Halbruner, Esquire, attorney for the defendants. Dion Magaro, Pro Se, and involuntary plaintiff, was not present. This case involves a contention on the part of plaintiff Adkins that she made substantial improvements to a home owned by the defendants and occupied by Anthony R. Magaro. She contends, further, that in exchange for those improvements the defendants had promised to deed the property to her and to Dion Magaro. While the defendant, Anthony Magaro, agrees that some money may be owed, he contends that the amounts involve a joint claim by Ms. Adkins and his son. He also claims, however, certain amounts by way of a set-off . This claim has to do with certain property allegedly removed from the real estate by Ms. Adkins. At the conference, we discussed the legal issue of whether any promise to convey the real estate was governed by the Statute of Frauds. It appears that specific performance cannot be awarded in this case because of the absence of a writing. Another issue involves the contention that, if an award is made, it must be in favor of the plaintiffs jointly. The pleadings, however, raise the contention that, even though the improvements were paid for out of a joint account, the money came exclusively from the plaintiff, Michele Adkins. We are of the opinion that that issue is before the court because of the state of the pleadings. A nonjury trial in this case has been set to commence on Thursday, December 17, 2009, at 9:15 a.m. October 15, 2009 ? Michael L. Bangs, Esquire For the Plaintiff -/ Mark Halbruner, Esquire For the Defendants Dion Magaro, Pro Se Involuntary Plaintiff Kevin . Hess, J. Arn CopifS m?.L? COP ?OVis/vq 20G9 OCT 15 A I E: C E MICHELE ADKINS, Plaintiff, IN THE COURT OF COMMON PLEAS OF and DION MAGARO, Involuntary CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. ANTHONY R. MAGARO and JOANNE MAGARO, Defendants CIVIL ACTION - LAW NO. 2008-4394 CIVIL IN RE: NONJURY TRIAL BEFORE HESS, P.J. VERDICT AND NOW, this 12` day of January, 2010, following trial without a jury, we find in favor of the plaintiff and against the defendants in the amount of $10,000.00. BY THE COURT, Kevin ess. P. J. Michael L. Bangs, Esquire For he Plaintiff Z ark Halbruner, Esquire For the Defendants Dion Magaro, Pro Se Involuntary Plaintiff :rlm Clop L ksrL%[ ? ,-Mtn 371- ? t N ? r? W ? MICHELE ADKINS, Plaintiff, IN THE COURT OF COMMON PLEAS OF and DION MAGARO, Involuntary CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW VS. NO. 2008-4394 CIVIL ANTHONY R. MAGARO and JOANNE MAGARO, Defendants IN RE: NONJURY TRIAL BEFORE HESS, P.J. GENERAL FINDINGS AND VERDICT This matter was tried without a jury. In accordance with Pa.R.C.P. 1038, we are prepared to make general findings. The defendants are joint owners of a residence at 106 Pine Hill Road, Enola, Cumberland County, Pennsylvania. The plaintiff met Dion Magaro, the son of the defendants, and eventually became engaged to him. No doubt because of the engagement, the defendants, particularly Anthony Magaro, urged the plaintiff to move into the Pine Hill Road property and make improvements to it with the understanding that eventually the home would be deeded to the plaintiff, Michelle Adkins, and their son, Dion. Pursuant to this agreement, Ms. Adkins obtained a loan for around $20,000. Most of this money was to be set aside and used for the aforementioned remodeling. From November 2006 until October 2007, the plaintiff paid for materials and remodeling work in excess of $16,000. The upgrades to the real estate were substantial and included a new well and a complete remodeling of the kitchen, including the purchase of all new appliances. Unfortunately, thereafter, the relationship between Ms. Adkins and Dion deteriorated. Following an assault by NO. 2008-4394 CIVIL Dion, Ms. Adkins moved from the property and the relationship between Adkins and Dion ended. Despite this rift which developed, Mr. Magaro continued to assure the plaintiff that she would be repaid for the moneys she expended for remodeling and repairs. This money, however, has not been forthcoming. The plaintiff has expended a total of $16,286.19. Of that amount, at least $5,000 has been repaid. Allowing for adjustment for certain materials which Ms. Adkins took with her when she left, we are satisfied that the amount owed the plaintiff is at least $10,000. The plaintiff seeks, inter alia, the imposition of a constructive trust on the property in favor of the plaintiff and against the defendants. Our understanding of the law is that a constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground he would be unjustly enriched if her were permitted to retain it. See Nagle v. Nagle, 799 A.2d 812 (Pa.Super. 2002). We are satisfied that the imposition of a constructive trust in this case is an extreme measure which goes beyond the remedy necessary to compensate the plaintiff. Similarly, we will not grant the plaintiff's request that the defendants deed their property to the plaintiff. There is no written agreement requiring such a conveyance and the Statute of Frauds is clearly implicated. Instead, we will enter the following order. VERDICT AND NOW, this i2' day of January, 2010, following trial without a jury, we find in favor of the plaintiff and against the defendants in the amount of $10,000.00. BY THE COURT, Kevin 2 Hess, P. J. NO. 2008-4394 CIVIL Michael L. Bangs, Esquire For the Plaintiff Mark Halbruner, Esquire For the Defendants Dion Magaro, Pro Se Involuntary Plaintiff Am MICHAEL L. BANGS, ESQUIRE ATTORNEY FOR PLAINTIFF I.D. NO. 41263 MICHELE ADKINS 429 SOUTH 18TH STREET CAMP HILL, PA 17011 (717) 730-7310 MICHELE ADKINS, ) IN THE COURT OF COMMON PLEA S And DION MAGARO, Involuntary ) OF CUMBERLAND COUNTY, Plaintiff, ) PENNSYLVANIA vs. ) NO. 2008-4394 CIVIL TERM Z;:o ANTHONY R. MAGARO and ) CIVIL ACTION - LAW -`< -n cn JOANNE MAGARO, `.._ .- c Defendants r ca PRAECIPE rv TO THE PROTHONOTARY: Pursuant to the Verdict entered by President Judge Kevin A. Hess on January 12, 2010, Defendants have paid Plaintiff Michele Adkins the sum of $10,000.00. Please satisfy the judgment, discontinue and end case. Respectfully submitted, BANGS LAW OFFICE, LLC MICHAEL L. BANGS ?- Attorney for Plaintiff Mi `?' ele Adkins 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID 441263 Date: =`y' x Mark Halbruner, Esquire For the Defendants c? ys Dion Magaro, Pro Se Involuntary Plaintiff