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HomeMy WebLinkAbout09-2021HAROLD S. IRWIN, 111, ESQ. SUPREME COURT ID NO. 29920 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PLAINTIFFS KENNETH W. OUTSHALL and DELORES M. OUTSHALL, his wife, Plaintiffs V. DEBRA ACCOMANDO, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 2009 Ot U c L 4 l 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 an attomey and filing in writing with the court your defenses or objections to the claims set forth against you. You are wamed 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, PA 17013 717-243-3166 KENNETH W. GUTSHALL and DELORES M. GUTSHALL, his wife, Plaintiffs V. DEBRA ACCOMANDO, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 2008 - z o 1 au') ?;:_ COMPLAINT NOW come the plaintiffs, by their attorney, Harold S. Irwin, 111, Esquire, and file this complaint against the defendant, representing as follows: 1. Plaintiffs are KENNETH W. GUTSHALL and DELORES M. GUTSHALL, his wife, adult individuals residing at 4724 East Trindle Road, Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania 17050. 2. Defendant is DEBRA ACCOMANDO, an adult individual residing at 1216 Fruitville Pike, Lititz, Pennsylvania 17543. At all times relevant hereto, plaintiff believes and therefor avers that defendant was the owner of certain commercial property, on which is situated a business enterprise known as NAPA Transportation and which adjoins the land of the plaintiffs and others who own residential property along East Trindle Road. 3. In the Fall of 2003, defendant or her agents began installing a fence along the property line between defendant's land and land of plaintiffs and their neighbors. This installation was halted by the township due to various regulations with which the defendant and her agents were out of compliance. 4. On November 3, 2003, a township meeting was held to determine whether defendant would be permitted to install the fence and, if so, what requirements would be imposed on its installation. 5. Plaintiffs and various neighbors attended the township meeting, after which they discussed with defendant's husband the possibility of defendant conveying to plaintiffs and their neighbors a strip of land along their common boundary. One of the neighbors, Frank Lentz, was designated as the person to handle the negotiations between the landowners and defendant. 6. Eventually, an agreement was reached whereby defendant would convey to plaintiffs and their neighbors this strip of land along their common boundary, provided that all of the property owners participated in the transaction and paid to defendant the sum of $3,500 per lot to cover the costs of the transaction. This agreement was never reduced to a written agreement of sale, but communicated between the prospective purchasers by correspondence with Mr. Lentz. 7. Three of plaintiffs' neighbors declined to participate, but plaintiff agreed to purchase each on of their lots along with plaintiffs' own, for a total purchase price of $14,000.00. No written agreement of sale was ever prepared or signed by any of the parties to this transaction. 8. On March 4, 2004, defendant's attorney, Leslie D. Jacobson, Esquire, wrote a letter to Mr. Lentz, advising him of the terms of the transaction, acknowledging the receipt of a $500 downpayment for each lot, and requesting an additional payment of $1,000 per lot. A copy of this letter is incorporated herein by reference and attached hereto as Exhibit "A". 9. As of April 6, 2004, plaintiffs had made deposits totaling $4,000, the checks for which were cashed on May 10, 2004. 10. On March 16, 2005, Mr. Lentz sent a letter to plaintiffs, advising them that the township had given final approval for the subdivision plan. A copy of this letter is incorporated herein by reference and attached hereto as Exhibit °B". 11. Despite the approval of the township, no action was taken by the defendant to conclude this transaction. 12. On October 26, 2007, John Walker, project engineer for Hoover Engineering Services, Inc., sent plaintiffs a letter indicating that the final plan had been approved by Hampden Township, but that in the long delay a change in some of the property owners had occurred and all the current owners would need to sign off on the plan and the transaction. 13. On February 1, 2008, the project manager, Mr. Walker, was advised by Hampden Township that the Board of Commissioners had approved the final plan at its January 31, 2008 meeting, contingent on various minor details and recording of the plan within one year. A copy of this letter is incorporated herein by reference and attached hereto as Exhibit "C". 14. On June 9, 2008, plaintiffs were advised that defendant had finally signed the approved subdivision plan and that deeds for the various lots could be prepared. 15. On November 20, 2008, plaintiffs finally received an executed deed for the four lots they had agreed to purchase and they paid the remaining $10,000. A copy of this deed is incorporated herein by reference and attached hereto as Exhibit "D". This deed has not yet been recorded. 16. The deed attached as Exhibit "D" purports to be a quit-claim deed to these four lots, with no warranty whatever, was not signed by the defendant's husband to convey his marital property interests, and contains a variety of other drafting errors. 17. Plaintiffs were unrepresented during the negotiations for the purchase of these lots and at the time of final settlement. At no time were they advised that they would receive a quit- claim, no warranty deed, the implications of receiving such a deed, or that a title search should be performed prior to completing the purchase to ensure that the property they were purchasing would be free and clear of all encumbrances or defects in title. 18. A condition of the township for plan approval required that all purchasers, after receipt of their deed, prepare and execute a new deed combining their existing lot with the lot or lots being purchased on this plan. 19. Plaintiffs contacted their current counsel to prepare this deed. However, after discussion of the long ordeal plaintiffs had endured and upon discovery of several drafting errors, including the omission of any recital for the defendant's source of ownership in the property, and the realization that the deed was a quit-claim deed signed by defendant only and not her husband, counsel recommended that a title search be performed to determine whether or not there were liens on the property or other defects of title which led to the delivery of a quit- claim deed instead of a deed of special warranty. 20. A title search was performed at plaintiffs request, which search revealed the following additional issues: A. That defendant took title originally on November 5, 2002, but that a corrective deed was executed on July 30, 2004; no reason was stated in the corrective deed to justify the need for correction; B. The possibility that transfer taxes may have been required, but not paid in a prior transfer in the chain of title; C. Various restrictions, easements, rights-of-way, and other terms and conditions about which plaintiffs were not informed prior to completing this purchase; and, most importantly, D. The existence of two unsatisfied mortgages on the property, one by a former owner of the property for $1,087,500, and one by the defendant for $1,440,000. 21. After reviewing the title search, plaintiffs' counsel contacted defendant's counsel, Leslie David Jacobson, Esquire, by letter dated January 21, 2009, requesting information regarding the quit-claim deed, notifying him of several of the issues involved (including the unsatisfied mortgages on the property conveyed to plaintiffs), and requesting that he contact defendant in an effort to resolve these matters amicably. A copy of this letter is incorporated herein by reference and attached hereto as Exhibit "E". 22. Attorney Jacobson responded to this letter on January 22, 2009, by stating, inter alia, that he would speak to his client regarding this matter, but that he believed that the defendant had no responsibility to do anything further. A copy of this letter is incorporated herein by reference and attached hereto as Exhibit °F". 23. The drafting defects and omissions in the structure of this deed, the fact that it is a quit- claim deed, the fact that Mr. Accomando did not sign the deed, and the existence of two unsatisfied mortgages on the property, the possibility of unpaid transfer taxes, and the incomplete corrective deed in the chain of title all will affect the title to the property which the plaintiffs already own once compliance with the township's condition to combine the properties into one deed is accomplished. 24. In effect, plaintiffs have spent $14,000 and have now had to engage counsel to correct the deficiencies in this transaction, which defendant refuses to consider, let alone perform, and plaintiffs have received nothing of value in return. 25. While reasonable minds could differ regarding the issues of providing a quit-claim deed rather than a special warranty deed, the failure of defendant's husband to execute the deed, and the drafting defects in the deed, it is unconscionable, arbitrary, and capricious for the defendant and her counsel to expect plaintiffs to pay $14,000 for this property while knowing it is encumbered with substantial mortgage liens and refusing to ensure the satisfaction or release of these mortgages. WHEREFORE, plaintiff demands that the Court enter an order providing a timetable within which defendant must obtain the release of any liens or encumbrances upon this property, for the defendant to deliver a properly drafted and fully executed deed of special warranty for the property purchased by plaintiffs (including the joinder of defendant's spouse), within which defendant must resolve any issues with regard to transfer taxes and corrective deeds, and that defendant be required to reimburse to plaintiffs their costs and attorney fees in this matter. IRWIN LAW OFFICE March 27, 2009 HAROLD S. IRWIN, I Attorney for Plainti 64 South Pitt Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 VERIFICATION I certify that I am the plaintiff herein and that the facts contained herein are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn falsification to authorities. March 2009 E NETH W. GUTSHALL DELORES M. GUTSHALL EXHIBIT "A" 4 LAW OFFICES OF LESLIE DAVID JACOBSON LESLIE DAVID JACOBSON 8150 DERRY STREET SUITE A HARRISBURG, PA 17111-5260 (717) 909-5858 Facsimile: (717) 909-7788 March 4, 2004 Frank E. Lentz IV 1510 Timber Chase Drive Mechanicsburg, PA 17050 Dear Mr. Lentz: Please be advised that I represent the Accomandos and NAPA Transportation Inc. My clients have shared with me the Letters oflntentsigned by you and the other neighbors in regard to the transfer of certain parcels of ground from my clients to the residents neighboring the NAPA Transportation property. I understand that you are the contact person for all of the neighbors. We have now assigned the matter to a professional engineer to perform the necessary surveys, prepare a subdivision plan, and proceed with the necessary township approval. We have also been able to determine that the cost for the project will be $3,500 per lot, W cover all the costs, fees, and expenses, as well as the transfer taxes and deed preparation for the transactions. Therefore, kindly have each buyer forward to my attention an additional $1,000 deposit toward the $3500 purchase price. We acknowledge having received $500 from each buyer already, which will then leave a balance due and owing of $2,000 per lot, which would be payable at the time of the tendering and recording of the Deeds. Please do not hesitate to contact me, or Mr. Accomando directly, if you have any questions or comments. Thank you for your immediate attention to this matter. LDJ/cs cc: NAPA Transportation, Inc. Leslie D. Jacobson V ALLEN D. MOYER v 4 EXHIBIT "B" March 18, 2004 Dear Neighbors: Attached you will find the most recent piece of correspondence relative to our NAPA land purchase. If you would like, please forward the money to me and I will deliver it to Mr. Jacobson. Alternately, you can mail the payment directly to the law office. I would appreciate if you would let me know if you mail the payment directly so that I am up-to-date when I next speak to him. A few notes on what this money covers per Mr. Jacobson: Approximately 1/3 will go towards the engineer's fees for the surveys. When this is done we will have complete surveys of each of our properties which outline the exact boundaries. Approximately 113 goes towards legal fees Approximately 1/3 goes towards taxes, land transfer fees and deep preparation'fees. If you have any questions please contact me and I will contact Mr. Jacobson for an answer. This will help to keep the legal fees to a minimum. As usual, if you need to speak with me feel free to cal me at 717-730-7111 in the evening or 717-703- 5437 during the day. Please note that daytime is probably the best time to get in touch with me. 4/ A EXHIBIT "C" rt •1 Hampden Township Board of Commissioners Me" C. Finkelstein, Preskient Albers H. Bienwock, Vice Presidern John V. Thomas, Asst. Se aetarv Kenneth E. Fetrow Donald R. Mc Callin , Townsho Manager Michael H, Crosser! February 1, 2008 John B. Walker, Project Manager Hoover Engineering Services, Inc 658 Gaumer Road, Suite 100 New Cumberland, PA 17070 RE: Final Subdivision Plan for NAPA Transportation PC File No. 09408-04 nD: February 29, 2008 Dear Mr. Hoover: This will confirm action of the Hampden Township Board of Commissioners at its January 31, 2008 meeting to approve the above-referenced plan contingent upon: (1) submission of five copies 18" x 24" and one full-size complete set of the plan signed, sealed, notarized and showing lots/parcels with street addresses and a certified copy of the associated electronic file tying the property to the nearest Township monument; (2) bonding for or the placement of property markers as required; and (3) - Township Engineer approval and recordation within one year. In order for the plan to be recorded within the one-year time limit which is January 31, 2009, all of the conditions listed above must be met and the revised vlan received in the Engineering Department at least five days prior to January 31. If the plan is not recorded by January 31, 2009, the plan approval process will have to be started over, including application, fees, etc. There will be no reapproval granted by the Board of Commissioners. 230 S. Sponing Hill Road Mechanicsburg, PA 17050-3097 John B. Walker, Project Manager Page Two February 1, 2008 + If you have any questions, please call J. R. Spease, Township Engineer. Sincerely, MICHAEL H. OSSERT Township Manager c: Debra H. Accomando, Owner J. R. Spease, Township Engineer Darrell L. McMillan, Codes Enforcement Officer EXHIBIT "D" QUIT CLAIM DEED THIS INDENTURE, made the edgy of h?NEOJQ?,0.2008. BETWEEN Debra Accomando, GRANTOR(S) AND Kenneth W. and Delores Gutshall, GRANTEE(S) WITNESSETH that the said Grantor(s), for and in consideration of the sum of FOURTEEN THOUSAND DOLLARS AND ZERO CENTS ($14,000.00), lawful money of the United States of America, well and truly paid by the said Grantee(s) to the said Grantor(s), at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, alienated, enfeoffed, released, conveyed and confirmed and by these presents does grant, bargain, sell, alien, enfeoff, release, convey and confirm unto the said Grantee(s), her heirs and assigns. ALL THAT CERTAIN tract or parcel of land situate in the Township of Hampden, County of Cumberland and Commonwealth of Pennsylvania more particularly bounded and described as follows to wit. BEGINNING at an iron pin on the eastern right-of-way line of a private drive at the dividing line between Lots 1, and 1-D as shown on the hereinafter mentioned plan; thence along the eastern right-of-way line of the aforementioned private drive North twenty-five degrees, twenty-seven minutes, fifty-four seconds West (N 25° 27' 54" R9 a distance of twenty feet (20.009 to a point; thence along the dividing line between Lot 1-D and lands of Robert J. and Patricia S. Langan, lands of Crystal A. Glass, lands of Kenneth W. and Delores Gutshall and lands of David C. and Ingrid K. Vogelsong North sixty-four degrees, thirty-two minutes, six seconds East (N 64° 32' 06"E) a distance of three hundred seventeen and eleven hundredth feet (317.11) to an iron pin at the dividing line between Lot 1-D and lands now or late of Rite Aid Realty; thence along the dividing line between lot 1-D and said lands of Rite Aid Realty South twenty-five degrees, twenty-seven minutes, fifty-four seconds East (S 25° 27'54. E) a distance of twenty feet (20.00) to a concrete monument at the dividing line between Lots 1, 1-D and lands of Rite Aid Realty: thence along the dividing line between Lots 1 and 1-D South sixty- four degrees, thirty-two minutes, six seconds West (S 64° 32' 06" 09 a distance of three hundred seventeen and eleven hundredth feet (317.11) to an iron pin , being the place of BEGINNING. Containing 6,342.20 square feet or 0.146 acres. BEING Lot No. 1-D as shown on the Final Subdivision Plan for Napa Transportation. Said plan being recorded in the Office of the Recorder of Deeds of and for the County of Cumberland, Instrument Number 200825030, Instrument Type PLAN. Project Drawing No. 204032 prepared by Hoover Engineering Services, Inc. UNDER and SUBJECT to restrictions and conditions as now appear of record. IN WITNESS WHEREOF, the said Grantor(s), have hereunto set their hands and seal the day and year first above written. Signed, Sealed and Delivered in the Presence of WITN CERTIFICATION OF ADDRESS I hereby certify that the precise residence of the Grantee(s) in the within Deed is: Kenneth W. & Delores Gutshall 4724 East Trindle Road Mechanicsburg, PA 17055 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF Vrif-6 SS ) On this, the ? day of , 2008 before me, a Notary Public, the undersigned officer, personally appeared Debra Accomando who represents as the Grantor, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purpose therein contained. IN XVI'TNESS WHEREOF, I hereunto set my hand and Notorial seal -11"M 1A Shelley L. Notarial seal S?hrer , Notary Public M Sprang TwP•. Cum nand Y Conlnlis5ion Expires e County N Member, Pennsylvania Associa? of Ner?n.i-- My Commission Expires: EXHIBIT "E" IRWIN LAW OFFICE 64 SOUTH P/TT STREET HAROLD S. IRWIN, I I I CARLISLE, PEN=nvANm 17013 717-243.6090 PHA www.irwinlawofl a.COm 717-243-9200 SARAH A. HARDESTY e-mail. • lrwiniawofl<!ce@gmail.com FACSIMILE PARALEGAL January 21, 2009 LESUE D JACOBSON ESQ 8150 DERRY ST STE A HARRISBURG PA 17111-6260 RE: Accomando to Gutshall Dear Mr. Jacobson: As you know, I now represent the Gutshalls in the above matter. You prepared a deed conveying a strip of land from Debra Accomando to the Gutshalls. At the time, unfortunately, the Gutshalls were not represented by an attorney. In my view, this placed certain responsibilities on you to ensure that their interests were being protected, or, at least, to advise them to seek independent legal counsel. My interest at this point, however, is simply to repair the damage that has been done and see that the Gutshalls get what they paid for. If it were as easy as correcting the deficiencies in this unrecorded deed, fixing the situation would not be complicated. The problems, however, are deeper. 1 have had a title search performed on this property. As you apparently knew at the time, there is an open mortgage from Debra H. Accomando to Mid Penn Bank, dated October' 31, 2002 and recorded in . Mortgage Book 1786, Page 627. This mortgage is in the amount of $1,440,000. However, worse still, there is an open mortgage from the former owner,. K & P Associates, et al. to Canandaigua National Bank, dated May. 15, 1998 and recorded in Mortgage Book 1453, Page 779. This one is for $1,087,500. Either both of these mortgages must be satisfied or the Gutshall tract must be released by the lenders. I have many issues with the deed. Briefly: 1. 1 believe that my clients should be provided with a special warranty deed, not a quit claim deed. 2. Ms. Accomando's husband must sign the deed to release any marital property interest. 3. There are a variety of errors and % or omissions in the drafting of the deed that should be corrected. 4. The deed contains no recital indicating the source of title for Ms. Accomando. I would be happy to prepare a new deed that corrects these problems, if you prefer. However, I will not do so until we have reached an agreement that these matters will be addressed and that f the deed will be signed by your client. Ac comando to Gutshall Page Two You mentioned on the phone that the Gutshalls got what they bargained for. I disagree with that position. There does not appear to be any agreement of sale to determine what the bargain was and, as stated, the Gushalls were unrepresented and unprotected. They did, however, pay the full $14,000 for the property and they deserve a good, specially warranted deed and clear title with no liens. Please review this matter with your client and advise. I hope to hear back from.you in a _ reasonably short period of time. yours, Harold S. irw1h. III r i EXHIBIT "Fn LAW OFFICES OF LESLIE DAVID JACOBSON LESLIE DAVID JACOBSON 8150 DERRY STREET SUITE A HARRISBURG, PA 17111-5260 CHAD J. JULIUS (717) 909-5858 Facsimile: (717) 909-7788 22 January 2009 Mr. Hal Irwin Irwin Law Office 64 South Pitt Street. Carlisle, PA 17013 Re: Accomando to Gutshall Dear Mr. Irwin: I am in receipt of your correspondence dated 1.21.2009 in regard to the above-referenced matter. Please be advised that I was not involved initially with this matter. I was asked by my client, Debra Accomando, to help in the conclusion of the matter. This problem arose many years ago and involved a fence on the Accomando property and encroachments by some or all of the neighbors. Several meetings were held with the neighbors and the township, and an agreement was reached. My understanding of the agreement was that a Subdivision Plan would be filed with each neighbor receiving a Quit Claim Deed for the newly created parcels, for the property adjoining their lots. Further, the only consideration was that the property owners would pay for their pro-rated share of the engineering costs. It is my understanding that the entire process was handled by Hoover Engineering. The property descriptions in the deeds were prepared by Hoover Engineering. Further, most of my dealings were with Mr. Frank Lentz, as the spokesperson and representative for himself, and all the other adjoining property owners. The Gutshall's constantly called my office requesting information about the process. The only duty I owed the Gutshall's was to be polite and civil to them, which I am certain they will tell you I always was. Several times I advised them to seek counsel, but apparently they chose not to. Please be careful in expressing your views regarding my responsibility, as it relates to your clients. At your request I will speak with my client, however I do not believe that it is our responsibility to do anything further. If after reviewing this correspondence you have any questions or comments, please feel free to contact me at your convenience. OS QV Sheriffs Office of Cumberland County R Thomas Kline 4??d" Ql `N??a"rte Ly w? Solicitor Sheri e? t 4? Ronny R Anderson Jody S Smith Chief Deputy OMCE c SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/03/2009 03:33 PM - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on April 11, 2009 at 1341 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Debra Accomando, by making known unto Ron Accomando, adult in charge, at 4800 E. Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania, 17050, its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $40.12 SO ANSWE ,, April 09, 2009 R TH KL , SHERIFF De ty Shert-ff Docket No. 2009-2021 Kenneth Gutshall v Debra'Accomando FILED-iXrICE OF THE PPO # HOKOAAY 209 APR 13 AM 8: 58 Scott McPartland The Law Offices of Leslie D. Jacobson Attorneys for Defendant 8150 Derry Street, Ste. A Harrisburg, PA 17111-5260 TEL: (717) 909-5858 FAX: (717) 909-7788 KENNETH W. GUTSHALL and DELORES M. GUTSHALL, his wife, Plaintiffs V. DEBRA ACCOMANDO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Equity No. 2009-2021 Civil Term NOTICE TO PLEAD TO: Harold S. Irwin, III, Esq. YOU ARE HERBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTION WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. THE LAW OFFICES OF LESLIE DAVID JACOBSON Date: 5/8/09 Scott McPartland ID# 209669 8150 Derry Street, Ste. A Harrisburg, PA 17111 717.909.5858 FAX: 717.909.7788 Attorney for Defendant KENNETH W. GUTSHALL and DELORES M. GUTSHALL, his wife, Plaintiffs V. DEBRA ACCOMANDO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Equity No. 2009-2021 Civil Term DEFENDANT'S PRELEWWARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW COMES, Debra Accomando, Defendant, by and through her attorney, the Law Offices of Leslie David Jacobson, and files the following Preliminary Objection to the Complaint and in support thereof states as follows: Plaintiffs aver in their Complaint that an agreement was reached whereby Defendant would convey to Plaintiffs a small strip of land along their common boundary. 2. Plaintiffs aver in their Complaint in Paragraph 6 that the agreement was oral and it was not put in writing. 3. Paragraph 16 of Plaintiffs' Complaint states that Plaintiffs received a Quit Claim Deed for the land. 4. Plaintiffs, in Paragraph 25 of their Complaint, are demanding that Defendant clear liens and ensure satisfaction or release of mortgages on the land. PRELEMINARY OBJECTION PURSUANT TO PA.R.C.P 1028.1(a)(4) LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 5. Defendant incorporates paragraphs 1 through 4 above as though set forth at length. 6. Plaintiffs' Complaint does not state a cause of action. 2 7. Nowhere in Plaintiffs' Complaint does it allege that Defendant and Plaintiffs bargained for anything other than a Quit Claim Deed. 8. Plaintiffs do not aver in their Complaint that Defendant agreed to ensure satisfaction or release of any mortgages on the land. 9. Plaintiffs' Complaint avers that no warranty was given with the Deed in Paragraph 16. 10. Plaintiffs aver in their Complaint that the agreement was not reduced to writing; therefore, the Statute of Frauds would bar enforcement of any oral agreement for the conveyance of land. 11. Therefore, Plaintiffs' demands in their Complaint fail to state a claim upon which relief may be granted. WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiffs' Complaint for failure to state a claim and for whatever other relief the court deems just and appropriate. Respectfully Submitted, Date: 5/8/09 Scott McPartland Attorney I.D. No.: 209669 Law Offices of Leslie David Jacobson 8150 Derry Street Harrisburg, PA 17111 717.909.5858 FAX: 717.909.7788 3 KENNETH W. GUTSHALL and DELORES M. GUTSHALL, his wife, Plaintiffs V. DEBRA ACCOMANDO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Equity No. 2009-2021 Civil Term CERTIFICATE OF SERVICE I, Scott McPartland, do hereby certify that a copy of the foregoing Preliminary Objections to the Complaint were this day served upon the following person in the manner indicated below: FIRST CLASS MAIL Harold S. Irwin, III, Esq. 64 South Pitt Street Carlisle, PA 17013 Date: 5/8/09 Scott McPartland Attorney for Defendant 4 CAF TYE- 2009 HAY I I Pdi 3: 58 l? ,??:,, NlY