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HomeMy WebLinkAbout08-67740 KENNETH WIRTH, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA VS. :NO. C-r.. (? 7 Y cfir i fiun, FRANK WIRTH, : CIVIL ACTION - EQUITY DEFENDANT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATIN ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMAITON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. IF YOU DO NOT HAVE A LAWYER CONTACT: CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 KENNETH WIRTH, PLAINTIFF VS. FRANK WIRTH, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 ??vJ fiEr? CIVIL ACTION - EQUITY COMPLAINT IN EQUITY - PARTITION AND NOW, this ? a' day of November, 2008, comes, Plaintiff, Kenneth Wirth, by and through his attorneys, the law firm of Saidis, Flower & Lindsay and hereby avers as follows: 1. Plaintiff, Kenneth Wirth, is an individual residing at 1441 Raven Hill Road, Mechanicsburg, Pennsylvania, 17055. 2. Defendant, Frank Wirth, is an individual residing at 3748 Tudor Drive, Harrisburg, Pennsylvania 17109-1239. 3. Plaintiff and Defendant are the owners of certain real estate in Cumberland County as described below, and all of the interests of the parties in the property are held as joint tenants with right of survivorship. 4. The parties acquired title to the property known as 1441 Raven Hill Road by deed from Defendant Frank Wirth, dated February 13, 2001, recorded in the office of the Recorder of Deeds of Cumberland County in deed book 239, page 848, wherein said Defendant Frank Wirth conveyed all that certain lot as described in the Deed (which is attached hereto and incorporated herein as Exhibit A) to have and to hold as joint tenants with right of survivorship. 5. No person other than the parties to this suit has any interest in the property, which is presently in the possession of Plaintiff. 6. The property is subject to a mortgage held by Americhoice Federal Credit Union. 7. No partition or division of the property has ever been made. WHEREFORE, plaintiff demands that: (a) The Court decree partition of the real estate; (b) The share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying such partition into effect; and that, if the real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary sale or sales of the same may be made by such persons and in such manner as the Court may direct; and/or (c) Such other and further relief be granted as the Court deems just and proper. Respectfully submitted, SAIDIS, FLOWER & LINDSAY t ?(- By: Date e n E. osa Attorney I.D. 0440 Attorney for Plaintiff 2109 Market Street Camp Hill, PA 17011 (717) 737-3405 R^BE IRT P. ZIEGLER RrCO DER OF DEEDS CUMBERLAND COUNTY-PA 01 FEB 21 PP1 `t 01 D E E D Tax Parcel No.: 13-11-0272-022 THIS INDENTURE, Made the )a at-day of February, 2001 BETWEEN FRANK WIRTH, herein designated as the Grantor, AND FRANK WIRTH and KENNETH C. WIRTH, as joint tenants with the right of survivorship and not as tenants in common herein designated as the Grantees: WITNESSETH, that the said Grantors for and in consideration of the sum of One and N01100 ($1.00) Dollars lawful money of the United States of America, to the Grantor in hand well and truly paid by the said Grantees, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the Grantor being therewith fully satisfied, does by these presents grant, bargain, sell and convey unto the Grantees forever, their heirs and assigns, ALL THAT CERTAIN tract of land situate in Lower Allen Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northern line of Raven Hill Road at the dividing line between Lots 9 and 10 on the hereinafter mentioned Plan of Lots; thence along the northern line of Raven Hill Road South 72 degrees 25 minutes 40 seconds West 365.00 feet to a point at the dividing line between Lots 8 and 9; thence along the dividing line North 46 degrees 10 minutes 39 seconds West 517.23 feet to a point at lands now or late of Carol B. Brandt; thence along lands of Brandt and also lands now or late of Dirk Landman North 78 degrees 53 minutes 29 seconds East 487.97 feet to a point at the dividing line between Lots 9 and 10; thence along said dividing line South 35 degrees 19 minutes 18 seconds East 419.12 feet to a point on the northern line of Raven Hill Road, the point and place'of BEGINNING. BEING Lot No. 9, Plan of Raven Hill, recorded in Cumberland County Recorder's Office in Plan Book 24, Page 57. THIS IS A CONVEYANCE FROM FATHER TO FATHER AND SON AND IS THUS EXEMPT FROM REALTY TRANSFER TAXES. "'V' 233 PAGE $48 ?? 4-4 1 ? A,4 z j Pmi , BEING the same premises which Frank Wirth and Sandra E. Wirth, his wife, by deed dated May 1, 1995 and recorded October 20, 1995 in C:zmberland County Recorder's Office in Deed Book 129, Page 1093, granted and conveyed unto the grantor herein. TOGETHER with all and singular, the said property, improvements, ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and of every part and parcel thereof AND ALSO all the estates, right, title, interest, use, possession, property, claim and demand whatsoever, of the Grantor(s), both in law as in equity, of, in, and to the premises herein described and every part and parcel thereof with the appurtenances. TO HAVE AND TO HOLD all and singular the premises herein described together with the hereditaments and appurtenances unto the Grantees and to Grantees' proper use and benefit forever AND the Grantors covenant that, except as may be herein set forth, they do and will forever. specially warrant and defend the lands and premises, hereditaments and appurtenances hereby conveyed against the Grantors and all other persons lawfully claiming the same or to claim the same. UNDER AND SUBJECT to Acts of Assembly, county and township ordinances, rights of public utility and public service companies, existing restrictions and easements, visible or of record, to the extent that any persons or entities have acquired legal rights thereto. In all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. Wherever in this instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words "heirs, executors, administrators, personal or legal representatives, successors and assigns" had been inserted after each and every such designation. IN WITNESS WHEREOF, the said Grantors have hereunto set their hands and seals the day and year first above written. Signed, Sealed and Delivered, in the presence of: WITN S: CL Frank Wirth BON ? PAGE 849 Commonwealth of Pennsylvania: County of ON THIS, the / S"?-day of 4-e-4- 20,91 before me, the undersigned officer, personally appeared Frah, known to me (or satisfactorily proven) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged that ,ft/she/they executed the same for the purposes therein contained. NOT*Y PUBLIC My Commission Expires: NOTARIAL SEAL MARY D. VER RAGE, NotuY Pub?e ?`? ??"_ Fsirvfew Twp.. York Cnunly M Commi?s?or?Ex iresM 7.2002 I? hereby certify the address of the above-named Grantee(s) to be: 11.4- IQ 8'n- _ P W41 IRL-Y N ? ?G aN?c s ?U.a6 GA - ?? ss 600K 239 PACE 850 VERIFICATION I, Kenneth Wirth hereby verify that the statements made in the attached Complaint in Equity - Partition are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Dated: November , 2008 V,,( C. Kenneth Wirth -z rflz r W \ - CA) ? ' n7 C'? COQ d SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-06774 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WIRTH KENNETH VS WIRTH FRANK R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: WIRTH FRANK but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT - EQUITY On December 3rd , 2008 this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So -answers: -' ? Docketing 18.00 Out of County 9.00 Surcharge 10.00 T omas Kline Dep Dauphin Co 41.25 Sheriff of Cumberland County Postage .59 78.84 ? /x/?a?v ?-, 12/03/2008 SAIDIS FLOWER LINDSAY Sworn and subscribe to before me this day of A. D. In The Court of Common Pleas of Cumberland. County, Pennsylvania Kenneth Wirth vs. Frank Wirth No. 08-6774 civil Now, November 17, 2008 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Daupl i County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, 220 at o'clock M. served the within upon at by handing to a and made known to Sworn and subscribed before me this day of , 20 copy of the original So answers, the contents thereof. Sheriff of COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA tf:ilt oE?* Mary Jane Snyyder Real Estate Depu William T. Tully Solicitor )Ah Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin KENNETH WIRTH FRANK WIRTH Sheriffs Return No. 2008-T-2394 OTHER COUNTY NO. 08-6774 Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy VS And now: NOVEMBER 21, 2008 at 9:10:00 AM served the within COMPLAINT INEQUITY upon FRANK WIRTH by personally handing to FRANK WIRTH 1 true attested copy of the original COMPLAINT IN EQUITY and making known to him/her the contents thereof at 2310 WALNUT STREET HARRISBURG PA 17103 Sworn and subscribed to before me this 24TH day of November, 2008 117? NOTARIAL SEAL MARY JANE WMEltNotary Publi Highspire, Dauphin County M Commission Expires Sept 1 2010 So Answers, Sheriff of Daqpffih County, B Deputy Sheriff Deputy: S REED Sheriffs Costs: $41.25 11/19/2008 KENNETH WIRTH FRANK WIRTH IN THE COUR OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : No. 08-6774 Defendant : CIVIL ACTIO - EQUITY AND NOW COMES Defendant, Frank Wirth, by a Williams, P.C., to state the following Answer to Plaintiff's C I. Admitted. 2. Admitted. 3. Admitted. 4. Admitted with clarification. It is admitted tl property known as 1441 Raven Hill Road (the "Property") fi and Plaintiff as joint tenants with a right of survivorship. By was effectuated as part of an agreement by Plaintiff to p, ownership. No payments pursuant to said agreement have be 5. Admitted. 6. Admitted. INT IN EQUITY - PARTITION d through his attorneys, Shumaker )mplaint In Equity - Partition: Defendant transferred title to the i himself as sole owner to himself ay of further answer, such transfer money in consideration for such made by Plaintiff. 7. Admitted in part and denied in part. It is the Property has been made as between Plaintiff and Deft of whether the Property has ever been partitioned or dividedlby previous owners, and therefore the same is denied and strict proof of same is hereby demanded at time of trial. S Dated: J)'l ?/O? By Ev C. appas, I.D. A R f P. liney, I.D. P.O. Bo 88 Harrisbu g, PA 17108 (717) 76 -1121 that no partition or division of Defendant is without knowledge P.C. 0103 190 Attorneys I r Plaintiff :217276 _„ „LO '-w , i i . yq r j f' f OJ f4O f SH~.ER WILLIAM5 PAGE 04 The uadecsigned, Frank Wirth, hereby certifies the wioaai, that he is authorized to make this verifieatim and conut to the best of his knowledge, information and i statements herein are made subject to the penalties of X8 falsification to authorities. Dated: s/°g Frok he is the Defendant in the within hat the forgoing facts are true and :lief, and further swm that false . f4904 relating to unswom VIl I, Ryan P. Siney, Esquire, of the law firm of I served a true and correct copy of the foregoing Answer Partition, on this date by depositing a copy of the same in mail, first-class, postage prepaid, addressed as follows: Dean E. Reynosa, Esq SAIDIS, FLOWER & 2109 Market Street Camp Hill, PA 17011 Williams, P.C., hereby certify that Plaintiff's Complaint in Equity - possession of the United States SAY WILLIAMS, P.C. Dated: Q-110 0 By R P. iney, Esquire P. X). BOX 88 Harrisbu g, PA 17108 (717) 76 -1121 CY> T. ' _ s"s KENNETH WIRTH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 08-6774 FRANK WIRTH, : Defendant : CIVIL ACTION - EQUITY MOTION FOR ORDER DIRECTING PARTITION OF REAL PROPERTY AND NOW COMES Defendant, Frank Wirth, by and through his attorneys, Shumaker Williams, P.C., to state the following Motion for Order Directing Partition of Real Property pursuant to Pa.R.C.P. No. 1558: 1. On or about November 12, 2008, Plaintiff filed a Complaint seeking to partition the property located at 1441 Raven Hill Road, Lower Allen Township, Cumberland County, Pennsylvania (the "Property"). 2. On or about December 16, 2008, Defendant filed an Answer to Plaintiff's Complaint. 3. Defendant's Answer does not deny that the Property should be partitioned between the parties. 4. Defendant's contributions to the Property far exceed the contributions, if any, of Plaintiff. 5. Despite the fact that the Property is titled to both Plaintiff and Defendant, Plaintiff resides at the Property and has exercised unilateral control over the Property. 6. On or about August 14, 2009, Defendant learned that there are past due real estate taxes on the Property. 7. Defendant now seeks an Order which directs partition of the Property so that the respective rights and obligations of the parties can be determined and outstanding real estate taxes paid. 8. Defendant seeks to obtain an interest in the Property or proceeds from the sale of the Property in proportion to his contributions. 9. Although Defendant is amenable to stipulating to the interest or proceeds each party should receive, Plaintiff has heretofore been unwilling to enter into negotiations on such issues. 10. If the parties are unable to reach an agreement before or at a Preliminary Conference in this matter, Defendant respectfully requests this Court to appoint a Master pursuant to Pa.R.C.P. No. 1558 to determine the rights and obligations of the parties. 11. Pursuant to Local Rule 208.2(d), the concurrence of counsel for Plaintiff was sought and said concurrence was granted as to the relief sought by the instant Motion. 12. A Judge has not ruled on any matters related to this case. WHEREFORE, Defendant, Frank Wirth, respectfully requests this Honorable Court to enter an Order directing that the real property located at 1441 Raven Hill Road, Lower Allen Township, Cumberland County, Pennsylvania be partitioned and that each party receive an interest in the Property proportionate to his contributions to the Property, and that a Master be appointed to determine the amount of such proportion if the parties are unable to agree. SHUMAKER WILLIAMS, P.C. Dated: August 18, 2009 By v C. Pappas, I.D. #200103 R an P. Siney, I.D. #209190 P.O. Box 88 Harrisburg, PA 17108 :223973 (717) 763-1121 2 CERTIFICATE OF SERVICE I, Ryan P. Siney, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Motion for Order Directing Partition of Real Property, on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: John H. Pietrzak, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 SHUMAKER WILLIAMS, P.C. Dated: August 18, 2009 By jBRyP. Siney ox 88 Harrisburg, PA 17108 (717) 763-1121 F!, $ h OTAP 2009 AUG 18 PM L: 3 3 17 200a KENNETH WIRTH, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 08-6774 FRANK WIRTH, Defendant : CIVIL ACTION - EQUITY ORDER DIRECTING PARTITION OF REAL PROPERTY AND NOW, this day of O&M444- , 2009, upon consideration of Defendant's Motion for Order Directing Partition of Real Property, it is hereby ORDERED that partition be made of the real property located at 1441 Raven Hill Road, Lower Allen Township, Cumberland County, Pennsylvania, in proportion to the parties' respective interests. The parties or their attorneys are directed to appear for a Preliminary Conference on 2009 at in. to consider the matters set forth in Pa.R.C.P. No. 1558. 4LS?--62- x'30 4 Al BY THE COURT: J. D' ibution List; J n J. Pietrzak, Esquire, Reager & Adler, P.C., 2331 Market Street, Camp Hill, PA 17011 an P. Siney, Esquire, Shumaker Williams P.C., P.O. Box 88, Harrisburg, PA 17108 eo t'" MALLL 9 ;.q ilLGt,?,.1i 1,iVG OF THE Pf _j? H- NOTMY 2009 AUG 24 PM 1: 58 KENNETH WIRTH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW FRANK WIRTH, Defendant 08-6774 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of September, 2009, this being the time for the Preliminary Conference in the above-captioned matter, it appearing that the parties cannot agree to a plan of partition at this time, that the issues are fairly complex and involve other matters ancillary to the partition of the piece of real estate mentioned, accordingly, it is hereby ordered and directed that the parties will confer with each other on or before October 16, 2009, to determine if they can reach any settlement in this matter, failing to do so, a Master will be appointed by the Court to conduct hearings with regard to the partition. It is further ordered and directed that should the parties not be able to reach a compromise settlement in this matter, that each of them will submit two names to the Court who may be selected to serve as a Master in this matter. By the Court, ?v? ?NAX M. L. Ebert, Jr., John J. Pietrzak, Esquire 2331 Market Street Camp Hill, PA 17011 Fo the Plaintiff Ryan P. Siney, Esquire P.O. Box 88 Harrisburg, PA 17108 For the Defendant pcb Ca (Es mat 6CL RUD-OFFICE OF TFE FR'OTHKI) OTARY 2009OCT -6 AM 11: 39 KENNETH C. WIRTH IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 08-6774 CIVIL TERM FRANK WIRTH Defendant ORDER OF COURT A AND NOW, this 1q day of 2009, upon consideration of Plaintiff and Defendant's Joint Request for an open-ended extension of the October 16, 2009 deadline set forth in this Court's September 30, 2009 Order for the appointment of a Master in the above-captioned action, it is hereby ORDERED that the Court grants the parties an open- ended extension of time to reach a compromise settlement in this matter. It is further ORDERED that the Court will appoint a Master at the request of one or both of the parties should a compromise settlement not be reached, upon such request being forwarded to the Court in writing along with the names of two persons who the parties concur may be selected to serve as a Master in this matter. -,T\k k 4 -_ M. L. Ebert, Jr., J. Distribution: Counsel for Frank Wirth /yan P. Siney, Esquire Shumaker Williams PC 3425 Simpson Ferry Rd Camp Hill, PA 17011 V Counsel for Kenneth C. Wirth vrohn H. Pietrzak, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Fl I-IFu- 2099 CCT 19 F; l 2: 2 8 Y RLE[?' '-MCC Y IN THE COURT OF COMMON PLEAS Kenneth C. Wirth, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v Frank Wirth, TO THE PROTHONOTARY: Defendant : NO. 08-6774 CIVIL TERM ENTRY OF APPEARANCE Please enter the appearance of the undersigned counsel on behalf of the Plaintiff, Kenneth C. Wirth in the captioned matter. Respectfully submitted, REAGER & ADL R, P.C. i Date: g131 to Theodor A. dler, squire Attorney I.D. No. 16267 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Email: Tadler r.ReagerAdlerPC com Counsel to Plaintiff, Kenneth C. Wirth CERTIFICATE OF SERVICE AND NOW this ? day of September, 2010, I hereby certify that I caused a true and correct copy of the foregoing Entry of Appearance to be served upon the following counsel of record, via First Class U.S. Mail, addressed as follows: Ryan P. Siney, Esquire Shumaker Williams PC 3425 Simpson Ferry Rd Camp Hill, PA 17011 Alana L. Soud rs Paralegal, Reager & Adler, P.C. l ? i" ^ J S Kenneth C. Wirth, V. Frank Wirth, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6774 CIVIL TERM PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the captioned matter as withdrawn and discontinued with prejudice. Respectfully REAGER & ADL/ER,,P.C. e Date: a/4 Theodq? e AkAdler, Esquire Attorney I.D. No. 16267 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Email: Tadler &ReagcrAdlerPC.com Counsel to Plaintiff, Kenneth C. Wirth I CERTIFICATE OF SERVICE AND NOW this ?j day of September, 2010, I hereby certify that I caused a true and correct copy of the foregoing Praecipe to Discontinue to be served upon the following counsel of record, via First Class U.S. Mail, addressed as follows: Ryan P. Siney, Esquire Shumaker Williams PC 3425 Simpson Ferry Rd Camp Hill, PA 17011 n Alana L. Souders Paralegal, Reager & Adler, P.C.