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Home My WebLink About09-4723I KENNETH F. KODADEK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. el- q7;,5 V. FRANK KODADEK, : 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 INFORMATION ABOUT HIRING A LAWYER. 1,w? ohn; 5eff 2 5020 Ritter Road State 109 Mechanicsburg, PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 IF YOU CANNOTAFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania 17013-3308 (717) 249-3166 KENNETH F. KODADEK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND CONTY,PENNSYLVANIA v. NO. 0 9 - y7,?-? EQUITY FRANK KODADEK, Defendant COMPLAINT INEQUITY SEEKING SPECIFIC PERFORMANCE OF SETTLEMENT AGREEMENT AND NOW, COMES Kenneth Kodadek, Plaintiff in the above-captioned matter, by his attorney, John M. Kerr, Esquire, and files the within Complaint In Equity Seeking Specific Performance of Settlement Agreement, representing as follows: PARTIES 1. Plaintiff is Kenneth F. Kodadek, an adult individual residing at 5 Mountain View Road, Carlisle, Pennsylvania 17013. 2. Defendant is Frank Kodadek, an adult individual residing at 246 Old York Road, Dillsburg, Pennsylvania 17019. FACTUAL BACKGROUND RELATING TO LEGAL DISPUTES oerr 5020 Ritter Road State 109 Meohardcsburg, PA 17055 Pwom: 717.766.4008 FAx: 717.766.4066 3. Prior to May, 2008, Plaintiff Kenneth Kodadek (hereinafter, "Plaintiff" or "Son") jointly owned with his father, Defendant Frank Kodadek (hereinafter, "Defendant" or "Father"), a 2001 GMC 1500 Stepside vehicle. 4. This joint ownership was evidenced by a Certificate of Title containing both names, as issued by the Pennsylvania Department of Transportation . 5. Plaintiff and Defendant had lived together for a period of time, from December, 2005 through November 17, 2007 in a home jointly owned as tenants in common, as Plaintiff was attending college and law school, and Defendant/Father was experiencing the effect of having lost a prior residence through foreclosure. 6. Both Plaintiff and Defendant were interested in restoring antique and dated automobiles and re-selling them to interested purchasers via internet :sites like a-bay and other methods to reach the auto consuming public. 7. As a result of living with his son, Defendant/Father was able to obtain Plaintiff's social security number and other identification data, normally protected by privacy laws. Defendant/Father was also familiar with Plaintiff's signature. 8. On or about May, 2008, Defendant Frank Kodadek -without Plaintiff Ken Kodadek's La 0(8¢ d ohn M.?err 5020 Ritter Road Suite 108 Mechanicsburg, PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 authorization or permission - forged his son's name on a title transferring interest in the 2001 GMC 1500 Stepside to Team Toyota in Langhorn, Pennsylvania. 9. Defendant Frank Kodadek successfully "traded" the 2001 GMC Stepside for the purchase of a Toyota RAV 4 at Team Toyota in Langhorn, Pennsylvania. 10. Defendant/Father represented that Plaintiff Ken Kodadek had signed his own name to the title document transferring ownership of the 2001 GMC Stepside. Iln fact, this was not true. 11. When Ken Kodadek became aware that this transaction had taken place, he reported the transaction as a criminal complaint to the Pennsylvania State Police. 12. The State Police in Carlisle, Pennsylvania interviewed Defendant Frank Kodadek, who continued to maintain that his son, Plaintiff Kenneth Kodadek, had voluntarily executed the title document of his own volition. 13. Additionally, both Plaintiff and Defendant jointly owned an Oldsmobile 442 Convertible, which had been restored by both parties, but primarily through the efforts of Plaintiff Kenneth Kodadek. 14. The Oldsmobile 442 Convertible was kept at the residence jointly owned by Plaintiff and Defendant, located at 3298 Enola Road, Carlisle, Pennsylvania 17015. 15. Unbeknowst to Plaintiff Kenneth Kodadek, his Father,Frank Kodadek, removed the Oldsmobile 442 Convertible from the residence and has secreted it at an unknown location. 16. Defendant Frank Kodadek thus deprived Plaintiff Kodadek frorn access to and enjoyment of the Oldsmobile Convertible which he restored and is jointly owned by him. 17. As noted at paragraphs 5 & 14 above, Father and Son jointly owned as tenants in common the real property located at 3298 Enola Road, Carlisle, Pennsylvania 17015. 18. This property was purchased with a down payment of $38,000.00 paid by Plaintiff/Son, Kenneth F. Kodadek. 19. During the period of time that he resided at the residence, Plaintiff/Son paid for 50% of the mortgage payments; utilities; and all repairs necessary to maintain the property. 20. Due to Father's fraudulent acts, as more particularly described at paragraphs 8-15 above, Plaintiff/Son moved out of the jointly owned residence in late November, 2007 and ceased making any further mortgage payments. 21. Defendant/Father also moved out of this residence, in July, 2008 and stopped making any mortgage payments after November, 2008, with the consequence that the residential property was ultimately placed in foreclosure status. THE ORAL AGREEMENT TO SETTLE 92=;?err 6020 Ritter Road suite 109 Mechanicsburg, PA 17055 PHOm: 717.766.4008 FAx: 717.766.4066 22. In late April, 2009, the parties began serious settlement discussions through their respective counsel with an intent to resolve their differences over the three major disputed issues identified above, i.e., the two vehicles and the real property. 23. These efforts to settle were the direct result of Defendant/Father stating to his son on Wednesday, April 22, 2009, that he was tired of the stress and wanted to resolve all disputed matters. Indeed, during this discussion, the parties agreed on a settlement figure, e.g., $20,000.00 and, generally, the remaining terms. 24. On April 24, 2009, undersigned counsel forwarded an e-mail to Defendant/Father's counsel, memorializing this discussion between the parties (see "Exhibit "A," appended to this Complaint, copy of said e-mail transmission). 25. Defendant/Father's counsel responded that his client had e-mailed him with the general terms of the agreement (see Exhibit "A") 26. Before drafting any Settlement Agreement, undersigned counsel requested that ;_! e; 9OZZ 5020 Ritter Road Suite 108 Mechardcsburg, PA 17055 Priom: 717.766.4008 FAx: 717.766.4066 Defendant/Father's counsel memorialize via e-mail the terms of the agreed-to settlement which he was expressly authorized by his client to enter into. 27. As a result, on May 1, 2009, Defendant/Father's counsel forwarded an e-mail to undersigned counsel explicitly stating the terms which Defendant/Father had agreed to with his Son (see Exhibit "B" to this Complaint, copy of said e-mail). 28. As part of that e-mail, counsel to Father asked Defendant to immediately contact him if any of the terms were not part of the express agreement (see Exhibit "B"). Undersigned counsel was never advised that Defendant/Father contradicted any of the terms furnished by his lawyer. 29. In fact, on May 8, 2009, undersigned counsel received an a-maul transmission from Defendant/Father's attorney, inquiring, "...what is the status of the matter on your side?" This e- mail went further, asking if part of the $20,000.00 to be paid to Plaintiff/Son could be allocated to reinstate the mortgage, which was in foreclosure (see Exhibit "C," appended to this Complaint, copy of said e-mail transmission). 30. Undersigned counsel wrote back in response to this e-mail, stating that his client would not agree to such a diversion of funds and adding, "...Please let me know, because I do not want to waste the time drafting an Agreement if Frank is not going to move forward" (see, Exhibit „c„) 31. Defendant/Father's counsel quickly responded, "...Frank is ready to move forward as discussed. Draft the agreement.... Let's get this done!" (see, Exhibit "C") 32. Consequently, undersigned counsel drafted a proposed written settlement agreement based upon the terms furnished by Defendant/Father's counsel (see Exhibit "D," appended to this Complaint, copy of proposed Settlement Agreement). 33. After receiving the proposed Agreement, Defendant/Father and his counsel proposed certain revisions (see Exhibit "E," appended to the Complaint, copy of red-lined Settlement Agreement, reflecting proposed revisions). 34. Those revisions were agreed to by both undersigned counsel and Plaintiff/Son and, consequently, there was a "meeting of the minds" (see Exhibit "F," appended to this Complaint, copy of e-mail transmissions dated May 14 and 15, 2009). On the following Monday, counsel were to schedule a date for the execution of the Agreement and transfer of the money and title to the vehicle in question. 35. From the standpoint of Plaintiff/Son, the terms of the Settlement Agreement were Lw OtB? of ohn M.?elr 5020 Ritter Road Suite 109 McChardCSburg,PA 17055 Pmom: 717.766.4008 FAx: 717.766.4066 advantageous in that, a) it provided him with $20,000.00 in funds immediately, which were necessary as he is a second year law student transferring to another state; and b) Defendant/Father was obligated to reinstate the mortgage on their jointly-owned residential property, thereby protecting Son's credit rating. DEFENDANT FATHER'S PRETEXT FOR REFUSING TO COMPLY WITH ORAL AGREEMENT TO SETTLE 36. In undersigned counsel's e-mail message, dated May 8, 2009 (see Exhibit "C"), he specifically stated, "...however, we are disclosing a mold issue in the bathroom. I have spoken with the Realtor and I left him a detailed voice message last evening." Accordingly, Defendant/Father's counsel was on actual notice that a mold issue was being disclosed. 37. Notwithstanding this disclosure, counsel for Defendant/Father stated, "Frank is ready to move forward as discussed. Draft the agreement" (see Exhibit "C") 38. Consistent with undersigned counsel's representation that the mold issue would be disclosed, as set forth at paragraph 36 above, Plaintiff/Son wrote a letter to the realtor, Mitch Gelbaugh, who had agreed to list the property (see Exhibit "G," appended to Complaint, copy of Ken Kodadek's letter of May 13, 2009). 39. The listing agent, Mitch Gelbaugh, had been selected at the request of Defendant/Father, Frank Kodadek. 40. On the day on which a settlement date was to be selected, Defendant/Father's counsel otln M.?err 5020 tatter Road Suite 108 Mechanicsburg, PA 17os5 Pnors: 717.766.4008 FAx: 717.766.4066 raised the mold letter of Plaintiff/Son as a basis to refuse to go forward with the settlement. 41. This was mere pretext as Defendant and his counsel were on actual notice that this issue was to be raised. 42. The listing realtor was uncomfortable with Defendant/Father's attempt to persuade him not to reveal the existence of the mold and, solely as the result of Defendant/Father's conduct, walked away from listing. 43. Both Kenneth Kodadek and the listing realtor were under a legal duty to reveal to potential purchasers the existence of the mold. 44. The raising of the mold issue by Defendant/Father and his counsel was pretextual because Father did not want to honor the covenants which were part of the bargained-for exchange. 45. Plaintiff/Son possesses no adequate remedy at law inasmuch as his credit rating and potential admission to the bar would be compromised by Father's failure to reinstate the mortgage. WHEREFORE, it is requested that the Court enforce the oral Settlement Agreement as memorialized at Exhibit "E" to this Complaint by compelling specific performance, and grant such other relief as it deems appropriate, including the imposition of attorney's fees and costs. Respectfully submitted, t v? 9- 1oh M. Kerr, Esquire Att rney I.D.#26414 Law Office of John M. Kerr 5020 Ritter Road Suite 109 Mechanicsburg, PA 17055 (717) 766-4008 Dated: July 16, 2009 1Kerr 5020 Ritter Road Stile 109 Med1arksbwg, PA 17055 Prlom: 717.766.4008 FAx: 717.766.4066 VERIFICATION The undersigned, Kenneth Kodadek, hereby states that he is the Plaintiff in the foregoing Equity Action to Enforce Settlement Agreement and, as such, is authorized to execute this Verification and that any factual statements in the Complaint are true and correct to the best of his knowledge, information and belief. He understands that any false statements are subject to the penalties prescribed at 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Igo A Q LL I j a -Q Kenneth Kodadek RE: Kodadek v. Kodadek Page I of 1 John Kerr From: Roger M. Morgenthal [rmorgenthal@sasllp.com] Sent: Friday, April 24, 2009 10:01 AM To: John Kerr Subject: RE: Kodadek v. Kodadek I'm out of town until Monday but Frank did email me with the general terms of the agreement. The 2004 mortgage to Countrywide is in both names. 1 checked it in the Cumb Co Recorder's office. Sent with Wireless Sync frorn Verizon Wireless ---- Original Message ---- From: "John Kerr" <kerrlaw@comcast. net> Date: 4/24/09 9:53 am To: "Roger M. Morgenthal" <rmorgenthal@sasllp.com> Cc: "Kenneth Kodadek" <kfkodadek@mail.widener.edu> Subj: Kodadek v. Kodadek Roger: At the conclusion of the Preliminary Hearing in Bucks County on Wednesday, Frank approached Ken as he was walking to his car with his wife. Frank brought up the issues between the two of them. He told Ken that he and his wife have had enough of the ordeal and that he had tried to settle with Ken's previous attorney. Ken told him that we have the suit ready to be filed over the automobiles. Ken offered to settle for $20,000.00 payable as soon as possible. In exchange, Ken would execute the deed transferring title to the house, as wel I as transferring title to the 1968 Oldsmobile 442. Frank's response was that he was willing to do so, provided that a realtor confirmed that the house could be sold for $120,000.00 within six months. Ken's wife was a witness to this conversation. Significantly, Frank stated that he presently had the $20,000.00 in his Scot Trade Account. Ken's offer shall remain open for one (1) week, through May I, 2009. There is now no question that Frank Kodadek has the money. The only issue is whether he beleives that the real estate can be sold within six (6) months. We have not filed the civil suit yet because of the pendency of the criminal action and the obvious difficulty with obtaining Mr. Kodadek's testimony in light of his constitutional privilege not to incriminate himself. That is no longer an issue. If Frank Kodadek wants to end this ordeal, I need to have the funds by next Friday with a Settlement Agreement acceptable to the parties. Ken will perform his obligations at that time. If not, we will file our lawsuits the following week. In addition, Ken maintains that his name is not on any loan documents in connection with the real estate. Please advise at your earliest opportunity. We do not intend to play games or engage in legal maneuvering. Thank you for your attention to this matter.... John Kerr Exhibit A 7/9/2009 Page 1 of 2 John Kerr From: Roger M. Morgenthal [rorgenthal@sasllp.com] Sent: Friday, May 01, 2009 9:23 AM To: John Kerr Cc: Frank Kodadek; Amy L. Haines Subject: Agreement .John, this will confirm our discussion that VOL] will prepare a settlement agreement for my review based on the terms set forth below. Allier looking at the correspondence again. I believe it is their intention that both list the property with the ReMax agent and both will then sign the deed to convey to the eventual purchaser. 1 was originally thinking that the deed would go to Frank now, but it would have to be under and subject to the mortgage lien, raising additional issues. It would also involve additional recording costs. The following are the terms provided to me by my client: Frank will pay Ken $20,000. 1 would like this to be escrowed with your office They will list the property with ReMax with an asking price as recommended by the agent. Ken will see that the property is cleaned out and ready for marketing at the earliest opportunity. Ken will transfer the title to the Oldsmobile to Frank, paying the title charges, when the $20,000.00 is paid. I am sending a copy of this email to my client, and if I have misunderstood anything I want him to let me know immediately. Roger Roger M. Morgenthal, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, Pennsylvania 17110 Phone: (717) 234-2401 ext. 161 Fax: (717) 234-3611 Toll Free: 1-800-822-9757 Exhibit B *Our Spam filter may be overachieving. If you don°t receive a timely response to your email please call 7/8/2009 Pagel of 3 John Kerr From: Roger M. Morgenthal [rorgenthal@sasllp.com] Sent: Friday, May 08, 2009 10:48 AM To: John Kerr Cc: Amy L. Haines; Frank Kodadek Subject: RE: Kodadek .John, Frank is ready to move forward as discussed. Draft the agreement.. I just had not heard anything, and I remember all the false starts we had last year when Ken was working through the other attorney. Let's get this done! Roger Roger M. Morgenthal, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, Pennsylvania 17110 Phone: (717) 234-2401 ext. 161 Fax: (717) 234-3611 Toll Free: 1-800-822-9757 *Our sparn filter may be overachieving. If you don't receive a timely response to your email please call me at (717) 234-2401. Thank You.* This email may contain PRIVILEGED and CONFIDENTIAL INFORMATION intended only for the use of the recipient(s) named above. The information may be protected by state and federal laws, including, without limitation, the provision of the HIPAA act of 1996, which prohibits unauthorized disclosure. If you are not the intended recipient, you are hereby notified that any use or dissemination of this information, unauthorized disclosure, copying, distribution or taking of any action based upon or in reliance upon the contents of the materials is strictly prohibited. Any review of these materials other than the by the intended recipient SHALL NOT constitute a waiver of the attorney-client privilege. If you have received this email in error, please immediately notify the sender by reply email at the address provided above and delete this message. From: John Kerr [mailto:kerrlaw@comcast.net] Sent: Friday, May 08, 2009 10:51 AM Exhibit C To: Roger M. Morgenthal 7/9/2009 Page 2 of 3 Subject: RE: Kodadek Roger: The answer to your question is absolutely not. Ken is to get $20,000.00. That was the deal. Frank was not making the payments, and it went into foreclosure. When he sells the property, he will be getting all of the profit. 1 am willing to draft an Agreement for your review on Monday. However, I want you to understand that we want the $20,000.00 within ten (10) days ofMonday, or may 21, 2009. At that time we will deliver the automobile. Ken has been out of state and just returned. I had him sign the listing Agreement; however, we are disclosing a mold issue in the bathroom. I have spoken with the Realtor and I left him a detailed voice message last evening. I am forwarding the Listing Agreement to him. Please let me know, because I do not want to waste the trine drafting an Agreement if Frank is not going to move forward.... Jol-in Kerr From: Roger M. Morgenthal [mailto:rmorgenthal@sasllp.com] Sent: Friday, May 08, 2009 10:27 AM To: John Kerr Cc: Amy L. Haines; Frank Kodadek Subject: Kodadek .John, what is the status of the matter from your side? I understand you spoke with Mitch Gelbaugh, the Realtor, but 1 do not know if Ken is willing to sign the listing agreement. I checked the foreclosure complaint at the courthouse, and they are showing Ken's address as the same as Frank's. I instructed my client to inform the deputy whenever service is made that Ken does not. reside at that address. Frank has been receiving faxed information from the lender concerning what must be paid to stop the forcclosure, and I'll forward that to you shortly for your information. Would it make more sense for Frank to apply part of the funds he had gathered to pay Ken the $20,000 to save the property for the benefit of both of them? Please let me know what you can. I am going to be out of the office this afternoon, but I want to act on this Monday at the latest. Roger Roger M. Morgenthal, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, Pennsylvania 17110 Phone: (717) 234-2401 ext. 161 Fax: (717) 234-3611 Toll Free: 1-800-822-9757 7/9/2009 SETTLEMENT AGREEMENT AND GENERAL RELEASE THIS AGREEMENT, between Kenneth F. Kodadek, an adult individual presently residing at 5 Mountain View Road, Carlisle, Pennsylvania 17013 (hereinafter, "K. Kodadek" or "Son") and Frank Kodadek, an adult individual residing at 246 Old York Road, Dillsburg, Pennsylvania 17019 (hereinafter "F. Kodadek" or "Father") WHEREAS, Father and Son previously resided together at 3298 Enola Road, Carlisle, Pennsylvania 17013 in a home which they owned as tenants in common; and WHEREAS, Son had furnished the funds for the down-payment in order to purchase said real estate; and WHEREAS, the real estate at Enola Road in Carlisle is presently subject to a foreclosure proceeding; and WHEREAS, both Father and Son have recently signed a listing agreement granting RE/MAX Delta Group, Inc. through Mitchell Gelbaugh the exclusive right to market said real estate; and WHEREAS, during the period of time that Father and Son lived together they restored antique and dated automobiles; and WHEREAS, the parties jointly owned a 2001 GMC 1500 Stepside vehicle, as well as a 1968 Oldsmobile 442 fully restored convertible; and WHEREAS, Son believes that he possesses a cause of action against Father as a result of the transfer of title of the 2001 GMC Stepside vehicle; and WHEREAS, Father and Son wish to amicably resolve their differences and respective interests in the aforesaid real estate and vehicles. THEREFORE, intending to become legally bound thereby, the parties agree and stipulate to the following: Exhibit D 1. Settlement Amount. In exchange and in consideration for the promises and covenants of Son, as more fully delineated hereinafter, Father agrees to pay Son the sum of $20,000.00 in certified funds within ten (10) calendar days of the execution of this Agreement. Simultaneous with the payment of said funds, Son shall transfer title to Father of the 1968 Oldsmobile 442 convertible after having paid all title charges. 2. Enola Road Real Property Son agrees to list, and has executed the appropriate listing contract, in order that the real property owned as tenants in common at Enola Road in Carlisle, Pennsylvania, may be marketed and brought to settlement. Father shall be entitled to all proceeds of the sale of this property, after all liens, including the present mortgage, have been satisfied. Son agrees to execute all necessary documents, including the appropriate deed, in order to transfer ownership of said real property to Father at the time of sale. In the event that the property fails to sell, Son will still transfer ownership of the real property to Father. In turn, Father agrees to reinstate the mortgage out of foreclosure and to take such actions as necessary to remove Son's name from the existing mortgage. 3. Reinstatement of Note and/or Mortgage Father shall be responsible for any monies due in order to take the mortgage, note or any liens on the real property out of foreclosure. This sum, as of May 8, 2009, amounted to $10,472.06 on Loan #086854143. 4. Disclosure of Mold Condition Son represents that he has fully disclosed to the Associate Broker, Mitchell Gelbaugh, a mold condition in the bathroom which, to his knowledge, has not been remedied. Father agrees to indemnify son and to hold him harmless, including reasonable attorney's fees, as a result of any claim made or lawsuit filed after sale of the real property, as a result of the mold condition which may not have been properly disclosed to the ultimate purchaser or purchasers. General Release. In exchange for the consideration of $20,000.00, identified at paragraph 1 above, Son agrees to release Father from any and all claims, lawsuits, causes of action, demands for money, of any kind, whether known or unknown, from the beginning of time until the date of execution of this Agreement, arising from the said joint ownership of any vehicle or the real property located at 3298 Enola Road, Carlisle, Pennsylvania 17013. Father agrees to similarly release Son from any claims for money, potential lawsuits or causes of action, emanating from the period of time they lived together at the residence of the real property identified above; from their joint ownership of any vehicle; from any vehicle gifted to Son by Father; or the like from the beginning of time until the execution of this Agreement. Entire Agreement. Father and Son represent that this writing constitutes the entire agreement between them, and that any oral representations or promises are hereby merged into the writing. 7. Interpretation. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. 8. Choice of Law. In the event that any dispute arises concerning the interpretation or enforcement of this Agreement, venue shall lie in Cumberland County, Pennsylvania. IN WITNESS HEREOF, the parties execute this Agreement, as of the date below written. Frank Kodadek (Date) Witness Kenneth Kodadek (Date) Witness Formatted: Font: 8 pt SETTLEMENT AGREEMENT AND GENERAL RELEASE THIS AGREEMENT, between Kenneth F. Kodadek, an adult individual presently residing at 5 Mountain View Road, Carlisle, Pennsylvania 17013 (hereinafter, "K. Kodadek" or "Son") and Frank Kodadek, an adult individual residing at 246 Old York Road, Dillsburg, Pennsylvania 17019 (hereinafter "F. Kodadek" or "Father"). WHEREAS, Father and Son previously resided together at 3298 Enola Road, Carlisle, Pennsylvania 17013 in a home which they owned as tenants in common; and WHEREAS, Son had furnished from fNris account the funds for the down-payment in order to purchase said real estate; and WHEREAS, the real estate at Enola Road in Carlisle is presently subject to a foreclosure proceeding filed to No, 09-26')3 in Cumberland County; and WHEREAS, both Father and Son have recently signed a listing agreement granting RE/MAX Delta Group, Inc. through Mitchell Gelbaugh the exclusive right to market said real estate; and WHEREAS, during the period of time that Father and Son lived together they restored antique and dated automobiles; and WHEREAS, the parties jointly owned a 2001 GMC 1500 Stepside vehicle, as well as a 1968 Oldsmobile 442 fully restored convertible; and WHEREAS, Son believes that he possesses a cause of action against Father as a result of the transfer of title of the 2001 GMC Stepside vehicle; said cause of action heir k disputed by father; and WHEREAS, Father and Son wish to amicably resolve their differences and respective interests in the aforesaid real estate and vehicles. THEREFORE, intending to become legally bound thereby, the parties agree and stipulate to the following: Exhibit E 1 7 yr 20r??i13PC,0?4a.. Formatted: Font: 8 pt 1. Settlement Amount. In exchange and in consideration for the promises and covenants of Son, as more fully delineated hereinafter, Father agrees to pay Son the sum of $20,000.00 in certified funds within ten (10) calendar days of the execution of this Agreement. Simultaneous with the payment of said funds, Son shall transfer title to Father of the 1968 Oldsmobile 442 convertible after having paid all title charges. 2. Enola Road Real Property. Son agrees to list, and has executed the appropriate listing contract, in order that the real property owned as tenants in common at Enola Road in Carlisle, Pennsylvania, may be marketed and brought to settlement. Father shall be entitled to all proceeds of the sale of this property, after all liens, including the present mortgage, have been satisfied. Son agrees to execute all necessary documents, including the appropriate deed, in order to transfer ownership of said real property to Father or directiy to the Purchaser at father= election at the time of sale. In the event that the property fails to sellLend date?? ,Son will still transfer ownership of the real property to Father at: that time. In turn, Father agrees to reinstate the mortgage out of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . foreclosure and to take such actions as necessary to remove Son's name from the existing mortgage f ossible or to held Son harmless agpinst anl? ciairn or damages ari, rorn said e? ort a e.._r_- p,, ties acknc w'edg?_that in order fc,r Sun s name to be removed fron) said rl s8c _E.:1ht willh?vr tc;.rrfinance.t.hc prrprrty,whitlim._a.y_nok r..t7fsssible. 3. Reinstatement of Note and/or Mortgage Father shall be responsible for any monies due in order to take the mortgage, note or any liens on the real property out of foreclosure. This sum, as of May 8, 2009, amounted to $10,472.06 on Loan #086854143. 4. Disclosure of Mold Condition Son represents that he has fully disclosed to the Associate Broker, Mitchell Gelbaugh, a mold condition in the bathroom which, to his knowledge, has not been remedied. Father agrees to indemnify son and to hold him harmless, including reasonable attorney's fees, as a result of any claim made or lawsuit filed after sale of the real property, as a Formatted: Font: 8 pt result of the mold condition which may not have been properly disclosed to the ultimate purchaser or purchasers. 5. General Release. In exchange for the consideration of $20,000.00, identified at paragraph 1 above, Son agrees to release Father from any and all claims, lawsuits, causes of action, demands for money, of any kind, whether known or unknown, from the beginning of time until the date of execution of this Agreement, arising from the said joint ownership of any vehicle or the real property located at 3298 Enola Road, Carlisle, Pennsylvania 17013 c,, . r any other matter between t_hern. Father agrees to similarly release Son from any claims for money, potential lawsuits or causes of action, emanating from the period of time they lived together at the residence of the real property identified above; from their joint ownership of any vehicle; from any vehicle gifted to Son by Father; or 94e-4ke from any matter between them from the beginning of time until the execution of this Agreement. 6. Entire Agreement. Father and Son represent that this writing constitutes the entire agreement between them, and that any oral representations or promises are hereby merged into the writing. 7. Interpretation. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. 8. Choice of Law. In the event that any dispute arises concerning the interpretation or enforcement of this Agreement, venue shall lie in Cumberland County, Pennsylvania. IN WITNESS HEREOF, the parties execute this Agreement, as of the date below written. Frank Kodadek Kenneth Kodadek (Date) (Date) Formatted: Font: 8 pt Witness Witness RE: Revised Draft Agreement John Kerr From: Roger M. Morgenthal [rmorgenthal@sasllp.com] Sent: Friday, May 15, 2009 3:06 PM To: John Kerr Cc: Amy L. Haines Subject: RE: Revised Draft Agreement Is Ken okay with the agreement then? Sent with Wireless Sync from Verizon Wireless ---- Original Message ---- From: "John Kerr" <kerrl aw@com cast. net> Date: 5/ 14/09 1:05 pm To: "Roger M. Morgenthal" <rmorgenthal@sasllp.com> Subj: RE: Revised Draft Agreement Roger: We are good to go. Let's set up a date which works with both our schedules.... John K. From: Roger M. Morgenthal [in aiIto: rinorgepthal ci>asIlp.com] Sent: Thursday, May 14, 2009 11:53 AM To: John Kerr Cc: Frank Kodadek; Amy L. Haines Subject: RE: Revised Draft Agreement Thanks, John. Let me know. Roger M. Morgenthal, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, Pennsylvania 171 10 Phone: (717) 234-2401 ext. 161 Fax: (717) 234-3611 Toll Free: 1-800-822-9757 *Our spam filter may be overachieving. If you don't receive a timely response to your email please call me at (717) 234-2401. Thank You.* Exhibit F Page l of 3 7/8/2009 RE: Revised Draft Agreement SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, Pennsylvania 17110 Phone: (717) 234-2401 ext. 161 Fax: (717) 234-3611 Toll Free: 1-800-822-9757 *Our spam filter may be overachieving. If you don't receive a timely response to your email please call me at (717) 234-2401. Thank You.* This email may contain PRIVILEGED and CONFIDENTIAL INFORMATION intended only for the use of the recipient(s) named above. The information may be protected by state and federal laws, including, without limitation, the provision of the HIPAA act of 1996, which prohibits unauthorized disclosure. If you are not the intended recipient, you are hereby notified that any use or dissemination of this information, unauthorized disclosure, copying, distribution or taking of any action based upon or in reliance upon the contents of the materials is strictly prohibited. Any review of these materials other than the by the intended recipient SHALL NOT constitute a waiver of the attorney-client privilege. If you have received this email in error, please immediately notify the sender by reply email at the address provided above and delete this message. From: John Kerr [1??aiito:kcr?lay? Sri comes the ] Sent: Thursday, May 14, 2009 11:58 AM To: Roger M. Morgenthal Subject: RE: Revised Draft Agreement Roger: I do not have any problem with your revisions. 1 am sending them on to Ken for his review.... John K. From: Roger M. Morgenthal [maIIto: rmorgenthal fz;sas1lp.conl] Sent: Thursday, May 14, 2009 11:43 AM To: John Kerr Cc: Frank Kodadek; Amy L. Haines Subject: RE: Revised Draft Agreement John, here is a marked-up revision that my client will get at the same time you do. I'll check with Frank about when we can take care of the title transfer and payment. Page 2 of 3 7/9/2009 RE: Revised Draft Agreement Roger M. Morgenthal, Esquire SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, Pennsylvania 171 10 Phone: (717) 234-2401 ext. 161 Fax: (717) 234-3611 Toll Free: 1-800-822-9757 *Our Spam filter may be overachieving. If you don't receive a timely response to your email please call me at (717) 234-2401. Thank You.* This email may contain PRIVILEGED and CONFIDENTIAL INFORMATION intended only for the use of the recipient(s) named above. The information may be protected by state and federal laws, including, without limitation, the provision of the HIPAA act of 1996, which prohibits unauthorized disclosure. If you are no Page 3 of 3 7/9/2009 May 13, 2009 Mitch- A little background on the mold issue at 3298 Enola Rd...I resided at -the property from 12/04-11/07. During this time period, there was a persistent problem with black mold in the bathroom as well as the first floor bedrooms-though the problem associated with the bathroom was more pronounced. The bathroom required weekly treatments with Tilex on the walls, shower, and ceiling. Frank had proposed to sell the property, on 4/07, and as such, it was listed with Century 21 "A Better Way." Prior to signing a listing agreement, I primed all of the bathroom surfaces with a mold/mildew resistant primer, and proceeded to use mold/mildew resistant latex on said surfaces. This effort did not remediate the problem as the mold soon returned. I had an expert view the situation, and it was in their professional opinion that all of the drywall be removed from the bathroom as the mold spores had become embedded given that drywall is porous. The property already had a vent fan installed in the bathroom prior to our purchasing the property. Further, cracking the bathroom window open to allow for air circulation did little to help remove moisture and curb the process. The installation of a dehumidifier may help some, but how much I do not know. Finally, I had previously disclosed that there was the presence of black mold in the first floor bedrooms. While the mold did not accumulate on the walls or ceilings in these areas, it did accumulate on our furniture, which also required weekly cleanings in an effort to reduce the high incidence level of allergy problems my wife, daughter, and I suffered while residing there. I offer this insight to you in good faith, as I believe that future purchasers of this property should be privy to this matter. I have no knowledge of any efforts undertaken by Frank to remediate this problem, and if so, whether they were successful. Feel free to contact me if you have any additional questions. Sincerely, Ken Kodadek Exhibit G CD W ? 2CC9 J L?L 16 A i ,01,E Z?JVM/V Sheriffs Office of Cumberland County R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant OFFkcE''-'F -"= SHERIFF Edward L Schorpp Solicitor tj? FiLEL A- 2009 AU, -6 AH 9. 23 Kenneth F. Kodadek vs. Frank Kodadek Case Number 2009-4723 SHERIFF'S RETURN OF SERVICE 07/16/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Frank Kodadek, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Complaint In Equity according to law. 07/23/2009 02:35 PM - York County Return: And now July 23, 2009 at 1435 hours I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint in Equity, upon the within named defendant, to wit: Frank Kodadek by making known unto himself personally, defendant at 246 Old York Road Dillsburg, PA 17019 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $28.44 August 04, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF ! 4 COUNTY OF YORK OFFICE OF THE SHERIFF S(717)1;961 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFF/S/ KENNETH F. KODADEK 2 COURT NUMBER 2009-4723 3. DEFENDANTlS/ FRANK KODADEK 4. TYPE OF WRIT OR COMPLAINT Cl' KI1yT -N%UITY SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD FRANK KODADEK PERSONAL 6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO. TWP, STATE AND ZIP CODE) AT 246 OLD YORK ROAD DILLSBURG, PA 17019 7. INDICATE SERVICE PERSONAL U PERSON IN CHARGE V DEPUTIZE U CERT MAIL U 1ST CLASS MAIL U POSTED J pTHER NOW JULY 16 , 20 09 I, SHERIF OUN A hereby deputize the sheriff of YORK COUNTY to execute j'rn ccording to law. This deputization being made at the request and risk of the plaintiff., /' ?.r SHERIFF 8. SPECIAL INSTRUCTIONS OR OTHER INFORMAT ON THAT WILL ASSIST IN EXPEDITI OUT OF CUMBERLAND ADV FEE PAID BY ATTY. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction. or removal of any property before sheriffs sale thereof. 9. NAME and AD RE D TTOJtNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11 D TE FILED 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be p eted d notice is to be mailed). CUMBERLAND COUNTY SHERIFFS OFFICE 1 CrITIRTHCNTSE SMARR, RMM -403 f aRTSGLF, PA 170,1-A SPACE BELOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS LINE 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. MJ MCGILL YCSO 7-20-09 18-15-09 16. HOW SERVED: PERSONAL RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. 1 hereby certify afid return a NOT FOUND because m unable to locate the individual, company, etc named above. (See remarks below.) 1 E AND TITLE r?TINDFVI71. SE VED LIST rESS F NOT S AB VE elationshi to Defe n1) 19, Date of Service 20 ime [ 2f. ATTEMPTS I-Date'I Time I M*j?, Int. I Date I Time I Miles I Int. I Date I Time I Miles I elnt I Date I Time I Miles I Int. II Date I Time IMiles F Int. Date Time Miles Int 22. 23. Advance Costs 24 Service Costs 25 N/F 26.eag e 27 Postage 28. Sub Total 29. Pound 30 No 31 iurchg. 32. Tot. Costs 33 Costs Due Refund Check No $100.00 I • V t i ?^, 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37. Notary Cert 38. Mileage/PostagelNot Found 39. Total Costs 40 Costs Due or Refund 41 AFFIRMED and subscribed to bello 6 m thi 29th - RS " . 6 e s 42. day of J_^'28„09,,#q Signature of p. Sheriff S ' 'Q 46. Signature of York 47 DATE iv:.:: ?1Al_ SEAL County Sheriff 4 LI; -TA, ;Y PUBLIC RICHARD P. EU A S FF e 7-29-09 K C - jNTY ' , _ ( pia Nu. AU G. 12, 2009 48 Signature of Foreign County Sheriff 49 DATE 50. 1 ACKN ECEI G NATURE S? f1ATF RFCG IVCfI OF AU I HUKILLU 155UING AUTHORITY AND TITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY -Sheriff's Office 4. BLUE - Sherdrs Office ? - A ?s.r . -04 tld j??01? hZ ti ?Jd ?? l?? 600 ddlti3h'S 3" Q? A13 J??1 rr KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Defendant. TO: Kenneth F. Kodadek c/o John M. Kerr, Esquire Law Office of John M. Kerr 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4723 EQUITY NOTICE TO PLEAD You are hereby advised to file a written response to the enclosed Defendant's Preliminary Objections to Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement within twenty (20) days from service hereof, or judgment may be entered against you. SMIGEL, ANDERSON & SACKS, LLP Date: August 12, 2009 By: 4011? 7*k?r Pete . Good, Esquire - ID# 64316 Jessica E. Mercy, Esquire - ID# 206405 4431 North Front Street, 3d Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Peter M. Good, Esquire I.D. No. 64316 Jessica E. Mercy, Esquire I.D. No. 206405 Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 09-4723 : EQUITY Defendant. DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT IN EQUITY SEEKING SPECIFIC PERFORMANCE OF SETTLEMENT AGREEMENT AND NOW COMES, Defendant Frank Kodadek, by and through his attorneys, Smigel, Anderson & Sacks, LLP, and file the following Preliminary Objections to Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement: PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER I. Legal Insufficiency of Plaintiff Kenneth F. Kodadek's Complaint in Equity Seeking Specific Performance of Settlement Agreement 1. In his Compliant in Equity Seeking Specific Performance of Settlement Agreement, Plaintiff alleges that Plaintiff and Defendant entered into an oral settlement agreement whereby Defendant agreed to (1) pay Plaintiff $20,000.00 and (2) pay all monies necessary to remove the Enola Road, Carlisle, Pennsylvania property (the "Property") from foreclosure and Plaintiff agreed (1) to transfer title of the 1968 Oldsmobile 442 convertible to Defendant and (2) that he would market and sell the Property but that Defendant would be entitled to all proceeds from the sale or in the event that he could not sell the Property that he would transfer ownership of the Property to Defendant. 2. Plaintiff alleges that the oral settlement agreement was created through settlement negotiations and subsequent written draft settlement agreements that were exchanged between Plaintiff and Defendant's respective counsel. 3. Plaintiff further alleges that a "meeting of the minds" when the revisions to the written draft settlement agreement were approved between the parties. 4. However, the written draft settlement agreement was never executed by the parties. This Court cannot grant the relief requested by Plaintiff, the specific performance of the alleged oral settlement agreement and, therefore, Plaintiff should have brought an action based in law for breach of contract and not an action in equity. 6. As a result, Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement is legally insufficient and should be dismissed. WHEREFORE, Defendant Frank Kodadek respectfully requests that this Honorable Court dismiss Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement for legal insufficiency. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER II. Legal Insufficiency of Plaintiff Kenneth F. Kodadek's Complaint in Equity Seeking Specific Performance of Settlement Agreement 7. In his Compliant in Equity Seeking Specific Performance of Settlement Agreement, Plaintiff alleges that Plaintiff and Defendant entered into an oral settlement agreement whereby Defendant agreed to (1) pay Plaintiff $20,000.00 and (2) pay all monies necessary to remove the Enola Road, Carlisle, Pennsylvania property (the "Property") from foreclosure and Plaintiff agreed (1) to transfer title of the 1968 Oldsmobile 442 convertible to Defendant and (2) that he would market and sell the Property but that Defendant would be entitled to all proceeds from the sale or in the event that he could not sell the Property that he would transfer ownership of the Property to Defendant. Plaintiff alleges that the oral settlement agreement was created through settlement negotiations and subsequent written draft settlement agreements that were exchanged between Plaintiff and Defendant's respective counsel. 9. Plaintiff further alleges that a "meeting of the minds" when the revisions to the written draft settlement agreement were approved between the parties. 10. However, the written draft settlement agreement was never executed by the parties. 11. Settlement negotiations and the exchange of written draft settlement agreements that are not executed by the parties do not establish that a "meeting of the minds" occurred or that an oral contract was entered into between the parties. 12. In addition, the fact that the parties took steps to create a written settlement agreement establishes that the parties did not intend for their negotiations to become an oral agreement and therefore there was no "meeting of the minds." 13. The Court cannot enforce an oral settlement agreement that is based solely on negotiations and the exchange of draft, unsigned agreements between the parties. 14. As a result, Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement is legally insufficient and should be dismissed. WHEREFORE, Defendant Frank Kodadek respectfully requests that this Honorable Court dismiss Plaintiff's Complaint in Equity for Specific Performance of Settlement Agreement for legal insufficiency. 4 Respectfully Submitted, SMIGEL, ANDERSON & SACKS, LLP Date: August 12, 2009 By: Pe t& M. Good, Esqui - ID# 64316 Jessica E. Mercy, Esquire - ID# 206405 4431 North Front Street, P Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4723 EQUITY CERTIFICATE OF SERVICE I, Jessica E. Mercy, Esquire, attorney for the Defendant in the above-captioned matter, certify that I this day served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: John M. Kerr, Esquire Law Office of John M. Kerr 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 SMIGEL, ANDERSON & SACKS, LLP Date: August 12, 2009 By: 4 ? W-?'- ? Pe M. Good, Esqui - ID# 64316 Jessica E. Mercy, Esquire - ID# 206405 4431 North Front Street, 3`d Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant TLF r •+r rrJ ry r+:; !"'i 2' ter .. 111 i tGG9 A .' fL r" , PRAECIPE FOR LISTING CASE FOR ARGUMEN'C TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for Argument Court KENNETH F. KODADEK, Plaintiff vs. FRANK KODADEK, Defendant No. 4723 , 2009 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.) Defendant's Preliminary Objections to Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement 2. Identify counsel who will argue cases: (a) for plaintiff John M. Kerr, Esquire (Name and Address) 5020 Ritter Road, Suite 109, Mechanicsburg Pennsylvania 17055 (b) for defendant: Peter M. Good, Esquire and Jessica E. Mercy Esquire (Name and Address) 4431 N. Front St., 3'd Floor, Harrisburg, PA 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 14, 2009 . Si ature Jessica E. Mercy, Esquire Print your name Date:. August 24, 2009 Frank Kodadek Attorney for Defendant KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4723 EQUITY CERTIFICATE OF SERVICE I, Jessica E. Mercy, Esquire, attorney for the Defendant in the above-captioned matter, certify that I this day served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: John M. Kerr, Esquire Law Office of John M. Kerr 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 SMIGEL, ANDERSON & SACKS, LLP Date: August 24, 2009 By: 4xx? Pe M. Good, Esquire - E0# A4316 Jessica E. Mercy, Esquire - ID# 206405 4431 North Front Street, 3rd Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant I *)I-.f-11 OF THE 209 AUlb 2 e PV 2: 5-7 KENNETH KODADEK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. FRANK KODADEK, NO. 2009 - 4723 CIVIL TERM Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HESS, GUIDO, JJ ORDER OF COURT AND NOW, this 16TH day of OCTOBER, 2009, after reviewing the record as well as the briefs filed by the parties in support of their respective positions, and having heard argument thereon, Defendant's Preliminary Objections are OVERRULED. By th ourt, Edward E. Guido, J. John M. Kerr, Esquire 5020 Ritter Road Suite 109 Mechanicsburg, Pa 17055 ?Jessica E. Mercy, Esquire 4431 North Front Street, P Floor Harrisburg, Pa. 17110-1778 Court Administrator m?-4kL 1 ?l Q ?? HE c 2099 OCT 19 A 10: 1 1 F SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Defendant. TO: Kenneth F. Kodadek c/o John M. Kerr, Esquire Law Office of John M. Kerr 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 Peter M. Good, Esquire I.D. No. 64316 Jessica E. Mercy, Esquire I.D. No. 206405 Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4723 EQUITY NOTICE TO PLEAD You are hereby advised to file a written response to the enclosed Defendant's Answer with New Matter to Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement within twenty (20) days from service hereof, or judgment may be entered against you. SMIGEL, ANDERSON & SACKS, LLP Date: By: TY Pete . Good, Esqu' - ID# 64316 Jessica E. Mercy, Esquire - ID# 206405 4431 North Front Street, 3rd Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Defendant. Peter M. Good, Esquire I.D. No. 64316 Jessica E. Mercy, Esquire I.D. No. 206405 Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4723 : EQUITY DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT IN EQUITY SEEKING SPECIFIC PERFORMANCE OF SETTLEMENT AGREEMENT AND NOW COMES, Defendant Frank Kodadek, by and through his attorneys, Smigel, Anderson & Sacks, LLP, and file the following Answer with New Matter to Plaintiff's Complaint in Equity Seeking Specific Performance of Settlement Agreement: PARTIES Admitted upon information and belief. 2. Admitted. FACTUAL BACKGROUND RELATING TO LEGAL DISPUTES Admitted with clarification. The 2001 GMC 1500 Stepside vehicle was purchased solely with funds contributed by Defendant. Defendant's intention was to name Plaintiff on the Certificate of Title as a survivor, but the notary listed Plaintiff as a co-owner. 4. Denied. The Certificate of Title that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. Denied as stated. Defendant denies that Plaintiff and Defendant began living together in December 2005 for the reasons stated. Rather, Plaintiff and Defendant have been living together off and on since April 1990. 6. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the averment that Plaintiff was interested in restoring antique automobiles for resale and the averment is therefore denied, with strict proof thereof demanded at trial. By way of further denial, Plaintiff has never restored an antique automobile. 7. Admitted with clarification. Defendant has knowledge of Plaintiff's social security number and other identification data, not because they lived together, but because Plaintiff is Defendant's son and as such Defendant would have knowledge of such information. In addition, by virtue of living with Defendant, Plaintiff was also able to obtain Defendant's private identification data, such as his social security number. 8. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, this issue has already been heard and dismissed by a Bucks County court. In addition, Plaintiff signed his own name on the title document transferring the 2001 GMC 1500 Stepside to Team Toyota. 9. Admitted. 10. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, Plaintiff did sign his own name on the title document transferring the 2001 GMC 1500 Stepside to Team Toyota. 11. Admitted. 12. Admitted with clarification. Defendant continued to maintain that Plaintiff had voluntarily executed the title document of his own volition because Plaintiff did in fact voluntarily execute the title document that transferred title to the 2001 GMC 1500 Stepside to Team Toyota. 13. Admitted in part and denied in part. It is admitted that the Certificate of Title to the Oldsmobile 442 Convertible listed Plaintiff and Defendant as joint owners. All other averments of this paragraph are denied with strict proof thereof demanded at trial. By way of further denial, the Oldsmobile 442 Convertible was purchased and restored solely with funds contributed by Defendant. Defendant's intention was to name Plaintiff on the Certificate of Title as a survivor, but the notary listed him as a co-owner. In addition, the restoration of the Oldsmobile 442 Convertible was completed exclusively by Defendant. At no time did Plaintiff take part in the restoration. 14. Admitted. 15. Denied. Defendant removed the Oldsmobile 442 Convertible from the Enola Road property because no one was living at the property and therefore it had become vacant. Defendant informed Plaintiff of the new location of the Oldsmobile 442 Convertible by letter. 16. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, Plaintiff did not provide any of the funds for the purchase and/or restoration of the Oldsmobile 442 Convertible, nor did he take part in the actual restoration of the vehicle. In 4 addition, Defendant's intention was to name Plaintiff on the Certificate of Title as a survivor, but the notary listed him as a co-owner 17. Admitted. 18. Denied. Defendant provided the funds for the $36,000.00 down payment for the Enola Road property. Plaintiff did not provide any of the funds for the purchase of the property. 19. Denied. Plaintiff has never paid any part of the mortgage, homeowners' insurance, property taxes, repairs or upkeep associated with the Enola Road property. All of these expenses have been paid and continue to be paid by Defendant. In addition, the only utilities that Plaintiff paid for when he was living at the property were the electric and the trash removal. 20. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the averments of this paragraph regarding the reason that Plaintiff moved out of the Enola Road property and the averments are therefore denied, with strict proof thereof demanded at trial. By way of further denial, throughout the years that Plaintiff and Defendant were living together, Plaintiff would often move in and out without notifying Defendant of his actions. 21. Admitted in part and denied in part. It is admitted that Defendant no longer lives at the Enola Road property. It is also admitted that at one time, Defendant had stopped making the mortgage payments due to financial difficulty. All other averments of this paragraph are specifically denied with strict proof thereof demanded at trial. By way of further denial, the Enola Road property was not ultimately sold at foreclosure sale and the mortgage payments have been brought up to date and current by Defendant. THE ORAL AGREEMENT TO SETTLE 22. Admitted. 23. Admitted. 24. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff s summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 25. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiffs summaries, conclusions or characterizations made regarding that writing are specifically denied. 26. Admitted. 27. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff s summaries, conclusions or characterizations made regarding that writing are specifically denied. 28. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff s summaries, conclusions or characterizations made regarding that writing are specifically denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the averments of this paragraph relating to 6 whether the undersigned counsel was ever advised that Defendant contradicted any of the terms and the averments are therefore denied, with strict proof thereof demanded at trial. 29. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 30. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 31. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff s summaries, conclusions or characterizations made regarding that writing are specifically denied. 32. Denied. The Settlement Agreement that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff s summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the averments of this paragraph and the averments are therefore denied, with strict proof thereof demanded at trial. 33. Denied. The red-lined Settlement Agreement that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff s summaries, conclusions or characterizations made regarding that writing are specifically denied. 34. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 7 35. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the averments of this paragraph and the averments are therefore denied, with strict proof thereof demanded at trial. DEFENDANT/FATHER'S PRETEXT FOR REFUSING TO COMPLY WITH ORAL AGREEMENT TO SETTLE 36. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 37. Denied. The e-mail that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 38. Denied. The letter that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. 39. Admitted. 40. Denied. Defendant's counsel raised the mold issue because the listing realtor declined to accept the listing for the Enola Road property due to Plaintiff's letter and actions and due to the fact that he did not want to get involved in the dispute between Plaintiff and Defendant. 41. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 42. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, the existence of the mold was disclosed by Defendant on the Seller's Property Disclosure Statement. In addition, the listing realtor declined to accept the listing for the Enola Road property and walked away from the listing due to Plaintiff's letter and actions and due to the fact that he did not want to get involved in the dispute between Plaintiff and Defendant. As a result, the listing realtor did not decline to accept the listing for the Enola Road property and walk away from the listing because of Defendant's conduct, but rather because of Plaintiff's conduct. 43. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 44. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. By way of further denial, Defendant's counsel raised the mold issue because the listing realtor declined to accept the listing for the Enola Road property due to Plaintiff's letter and actions and due to the fact that he did not want to get involved in the dispute between Plaintiff and Defendant. 45. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied. 9 WHEREFORE, Defendant Frank Kodadek respectfully requests that this Honorable Court dismiss Plaintiff's Complaint in Equity for Specific Performance of Settlement Agreement and enter judgment in his favor and against Plaintiff together with any costs associated therewith. NEW MATTER 46. Defendant hereby incorporates by reference paragraphs 1 through 45 of this Answer with New Matter as if fully set forth herein. 47. Plaintiff's Complaint in Equity for Specific Performance of Settlement Agreement fails to state a claim for which relief can be granted. 48. Plaintiff's claims may be barred in whole or in part by the Doctrine of Laches. 49. Plaintiff's claims may be barred in whole or in part by the Doctrine of Unclean Hands. 50. Plaintiff's claims are barred in whole or in part by its failure to litigate any damages sustained (all of which are denied). 51. Plaintiff's claims are barred in whole or in part by the Statute of Frauds. 52. In April 2009, Plaintiff and Defendant, through their respective counsel, began settlement negotiations in an effort to resolve their disputes involving issues surrounding the ownership and/or sale of (1) a 2001 GMC Stepside vehicle (2) a 1968 Oldsmobile 442 Convertible and (3) the real property located at 3298 Enola Road, Carlisle, Pennsylvania 17015. 53. During the settlement negotiations, counsel for the respective parties exchanged multiple e-mail communications setting forth the various terms that were to be included in a written settlement agreement between Plaintiff and Defendant. 54. After discussing the various terms of a settlement agreement, counsel for Plaintiff prepared a draft proposed written settlement agreement. 10 55. The draft proposed written settlement agreement was subsequently revised after review by Defendant's counsel. 56. The draft proposed written settlement agreement was never executed by the parties. 57. There was no "meeting of the minds" between Plaintiff and Defendant. 58. Plaintiff and Defendant did not agree on the essential terms of any oral settlement agreement and they did not intend for any such oral terms to be binding until reduced to writing and signed by the parties and, therefore, no oral settlement agreement existed between Plaintiff and Defendant. 59. On or about April 27, 2009, a mortgage foreclosure action was filed with respect to the Enola Road property. 60. In order to prevent the property from being foreclosed upon, counsel for the respective parties discussed listing the property for sale with a realtor. 61. In preparation for listing the property, Defendant completed a Seller's Property Disclosure Statement, which disclosed the existence of a mold issue in the house. 62. Even though the mold issue had already been disclosed, Plaintiff, in an effort to prevent Defendant from selling the property, wrote a letter to the listing realtor and insisted that the letter be attached to the Seller's Property Disclosure Statement. 63. However, the listing realtor declined to accept the listing for the property and walked away from the listing due to Plaintiff's letter and actions and due to the fact that he did not want to get involved in the dispute between Plaintiff and Defendant. 64. Knowing that the Enola Road property would not be listed for sale, it became crucial for Defendant to preserve the asset by bringing the mortgage current and preventing any 11 foreclosure on the property. 65. Defendant paid all costs associated with bringing the mortgage current and preventing any foreclosure with no assistance from Plaintiff. WHEREFORE, Defendant Frank Kodadek respectfully requests that this Honorable Court dismiss Plaintiff's Complaint in Equity for Specific Performance of Settlement Agreement and enter judgment in his favor and against Plaintiff together with any costs associated therewith. Respectfully Submitted, SMIGEL, ANDERSON & SACKS, LLP Date: Hi Ct 0c] to ??222( J By: Peter M. Good, Esquire - ID# 64316 Jessica E. Mercy, Esquire - ID# 206405 4431 North Front Street, 3rd Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant 12 11/18/2017 01:22 FAX VERIFICATION 1, Frank Kodadek, verify that the facts and statements set forth in the foregoing Defendant's Answer with New Matter to Plaintiffs Complaint in Equity Seeking Specific Performance of Settlement Agreement are true and correct to the best of his knowledge, information, and belief, and further states that false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: /` r 4-- C, q Frank Kodadek 16001 KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4723 EQUITY CERTIFICATE OF SERVICE I, Jessica E. Mercy, Esquire, attorney for the Defendant in the above-captioned matter, certify that I this day served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: John M. Kerr, Esquire Law Office of John M. Kerr 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 SMIGEL, ANDERSON & SACKS, LLP Date: ?l Gc-1 By: Pe r M. Good, Esquire - ID# 64316 Jessica E. Mercy, Esquire - ID# 206405 4431 North Front Street, 3rd Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant FLED-OFF OF THE (=M7A 2009 NOV 19 AM 8= O 4 CUMT C. 'sJN ?Y r EINJNSv I-VXNA PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) 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 C) ZZ? `st =g gi P R ' ----- (entire caption must be stated in full) (check one) Civil Action -Law KENNETH F. KODADEK ® Appeal from arbitration Equity (other) VS. FRANK KODADEK vs. (Plaintiff) (Defendant) The trial list will be call d on 1 /4/11 and Trials commence on 1 31 /11 1/19/11 Pretrials will be held on (Briefs are due 5 days be ore pretrials No. 09-4723 Civil Term equity Indicate the attorney who will try case for the party who files this john M. Kerr, Esquire Indicate trial counsel for other parties if known: Peter Good, Esquire This case is ready for trial. 11 /4/10 Date: Signed: _ Print Name: ?To Kenneth Kodadek Attorney for: s'6 _7 le'` . r G o 0 "n KENNETH F. KODADEK, IN THE COURT OF COMMON PL F z M ? PLAINTIFF CUMBERLAND COUNTY, PENNS` NI& ?m r ?D nv V. s An FRANK KODADEK, io C= ES =C') rn DEFENDANT 09-4723 CIVIL D A Ln -r; ORDER OF COURT AND NOW, this 15th day of November, 2010, the non-jury trial in the above referenced case has been assigned to this Court. Prior to setting an actual trial date, IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-trial memorandum with the Court on or before December 6, 2010, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the Court will set a trial date for this case. By the Court, ?VA UA M. L. Ebert, Jr., Ui. . . John M. Kerr, Esquire Attorney for Plaintiff Peter Good, Esquire Attorney for Defendant bas 3T iES ,ycwt i/, s f 1b L:ryolv) KENNETH F. KODADEK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FRANK KODADEK, DEFENDANT 09-4723 CIVIL ORDER OF COURT AND NOW, this 9th day of December, 2010, the non-jury trial in the above referenced case has been assigned to this Court, IT IS HEREBY ORDERED AND DIRECTED that the non-jury trial will be held on Friday, June 3, 2011, at 9:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. John M. Kerr, Esquire Attorney for Plaintiff --'--P-e-ter Good, Esquire Attorney for Defendant By the Court, ?*' I, ??A \' M. L. Ebert, Jr., Court Administrator - 1 bas (26 p lei rnd?lst rn 3 ;z rn C ?r- ?? - ?o $-) a O C: - )> %.0 CD C .) " C7 a < cr) ;:0 x SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 KENNETH F. KODADEK, Plaintiff, V. FRANK KODADEK, Defendant. Peter M. Good, Esquire I.D. No. 64316 Jessica E. Mercy, Esquire I.D. No. 206405 Attorneys for Defendant rw IN THE COURT OF COMMON PLIiS ° --+ CUMBERLAND COUNTY, PENTAWWI s ' No. 09-47236>?, C1 EQUITY c-) -- PRAECIPE TO WITHDRAW PETITION FOR LEAVE TO WITHDRAW AS COUNSEL TO THE PROTHONOTARY: Kindly withdraw Petitioner Smigel, Anderson & Sacks, LLP's Petition for Leave to Withdraw as Counsel in the above-captioned case. Respectfully submitted, SMIGEL, ANDERSON & SACKS, LLP Date: May 25, 2011 By: . /A W Peter M. Good, squire ID #64316 Jessica E. Mercy, Esquire ID #206405 River Chase Office Center, 3rd Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant KENNETH F. KODADEK, IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 09-4723 FRANK KODADEK, EQUITY Defendant. CERTIFICATE OF SERVICE I, Peter M. Good, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe to Withdraw Petition for Leave to Withdraw as Counsel was served upon the following as addressed below by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania as follows: John M. Kerr, Esquire Law Office of John M. Kerr 5020 Ritter Road, Suite 109 Mechanicsburg, PA 17055 Frank Kodadek 246 Old York Road Dillsburg, PA 17019 SMIGEL, ANDERSON & SACKS, LLP Date: May 25, 2011 By: _ a )4 Peter M. Good, squire ID #64316 Jessica E. Mercy, Esquire ID #206405 River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Defendant a KENNETH F. KODADEK, Plaintiff V. FRANK KODADEK, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-4723 CIVIL IN RE: NON-JURY TRIAL ORDER OF COURT r`? na ,.w C t ! CI7 71: -7 ? `u ri _ - ? C?i :ta AND NOW, this 12" day of December, 2011, after non jury trial in the above captioned matter and in consideration of the post trial briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that the Court finds in favor of the Defendant, Frank Kodadek and accordingly judgment is entered in his favor. By the Court, ? John M. Kerr, Esquire Atto ey for Plaintiff Peter M. Good, Esquire Jessica E. Mercy, Esquire Attorneys for Defendant eopl"Cs hZ„//.Z. 'v" ---? u- \) M. L. Ebert, Jr., KENNETH F. KODADEK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. FRANK KODADEK, NO. 09-4723 CIVIL Defendant IN RE: NON-JURY TRIAL OPINION AND ORDER OF COURT Ebert, Jr., J., December 12, 2011 - Statement of Facts Plaintiff, Kenneth Kodadek, currently resides in LaPorte, Indiana and is attending Valparaiso University School of Law. He expects to graduate in May 2012.1 Plaintiff is the son of the Defendant, Frank Kodadek.Z For a period of approximately ten (10) years, Plaintiff and Defendant lived together at a property located at 9750 Upper Strasburg Road, Upper Strasburg Township, Franklin County ("Franklin County Property") .3 The total payment for the Franklin County Property was paid for by the Defendant.4 Because of Defendant's financial difficulties, the Franklin County Property was titled solely in the name of Plaintiff. Notes of Testimony, June 3, 2011, pages 10-11 (hereinafter N.T. _). Z N.T. 12. 3 N.T. 12-13. 4 N.T.13-14. 14 In 2004, Father and Son moved from the Franklin County Property to 3298 Enola Road, Carlisle ("Carlisle Property").5 The Franklin County Property was sold and $36,000.00 from the proceeds of that sale were used as the down payment on the Carlisle Propert Y.6 The Carlisle Property was jointly titled in the names of both Plaintiff and Defendant.7 Plaintiff lived at the Carlisle Property with his wife and daughter until November of 2007 at which time they moved to 5 Mountainview Road in Carlisle before relocating to Indiana.9 During the time that Plaintiff lived at the Carlisle Property, Defendant paid all mortgage payments and taxes with the exception of the first month.9 Eventually Defendant purchased a 2001 GMC 1500 step-side Truck ("GMC Truck") and 1968 Oldsmobile convertible.10 These vehicles were purchased with Defendant's funds, however, both vehicles were titled in both Defendant and Plaintiff's name. i 1 Given the father and son relationship between the parties one might consider this action totally altruistic, however, Defendant admitted that he did have ulterior motives. The following testimony is enlightening: By Mr. Good: Q: So you wanted, as a matter of estate planning, you wanted to add Ken's name to the house even though the house was purchased in your name only? A: Even though I was told I could not do it, I made a deal with the title clerk. She understood --- Q: So the house, at your urging, after you bought it in your name, was re-titled in your name and Ken's name? A: It wasn't re-titled. She managed to catch it and get his name on it to the title. So he was a joint owner. ' N.T.13-14. s N.T. 13. ' N.T. 13. ' N.T. 10. ' N.T. 108, 111. ° N.T. 63,102,108 " N.T. 15. 2 Q: Was that the same thing, sir, with the automobiles? A: Absolutely. Q: So even though it was your money, you put his name on it for estate planning purposes? A: Not for estate planning. I had, I had a severe problem. In one of the properties that I owned, unbeknownst to me, I rented it to somebody that was what you would call a trip and fall expert. They sued me for x number of dollars, which I was never privy to. The word was coming out that they were going to take everything they could get. Q: You wanted to make yourself judgment proof by having your son on your assets? A: I took all the titles that were in my name only, I took them and Ken to, I guess it's a title place where you get stuff like that done. And I had all of it, I had his name added so the titles that I had were no longer any good. New titles were issued with his name on it. Q: And was there any, ever any monetary contribution made by Ken for any of the automobiles that you owned? A: No. Q: Now, regarding the Enola Road house, who made the Mortgage payments on that house? A: I did. Q: Who paid the taxes? A: I did.12 Defendant Father decided to sell the GMC Truck to Team Toyota in Langhorne, Pennsylvania in Bucks County.13 The transfer of the title of this truck was done by Defendant without his son's signature. 14 Plaintiff upon learning about the transaction, given his legal training and even though he :knew he had not in any way contributed funds for the purchase of 12 N.T.107-08. 13 N.T. 16. " N.T. 16. 3 the vehicle, decided to file criminal charges against his own father in Bucks County.15 A preliminary hearing on the charges was held on Wednesday, April 22, 2009.16 The charges against Defendant were dismissed. 17 According to Plaintiff and his "common-law wife" Nicole Freysinger, Father called out to Son outside of the Magisterial District Judge's Court in an act of apparent reconciliation in the parking lot so that they could talk about settling the disputes between them.18 Plaintiff and his wife state that Defendant agreed to pay his son $20,000.00 in cash in exchange for Plaintiff transferring his interests in the Carlisle Property and the 1968 Oldsmobile to Defendant. 19 Plaintiff contends that he immediately accepted this "offer," that there was a "meeting of the minds" and that upon his acceptance an oral contract was created. Defendant, on the other hand, while indicating that this arrangement would be acceptable, made it clear that the agreement was contingent upon him being able to sell the Carlisle Property for $120,000.00 within six months. 20 After the April 22, 2009 conversation between Plaintiff and Defendant, Plaintiff contacted his attorney, John M. Kerr ("Attorney Kerr"), to draft a written settlement agreement. 21 On April 24, 2009, Attorney Kerr forwarded an e-mail to Defendant's attorney, Roger Morgenthal ("Attorney Morgenthal"), outlining the terms of the proposed settlement agreement between Plaintiff and Defendant.22 On May 1, 2009, Attorney Morgenthal responded to Attorney Kerr's e-mail confirming that Attorney Kerr would prepare a written settlement agreement for review and include within that written settlement agreement a list of provided terms. 23 On May "N.T. 17. 16 N.T. 17. N. T. 17, 59. 8 N.T. 17, 89. 19 N.T. 18, 90. 20 N.T. 19. 2' N. T. 60, 62. 22 N.T. 75-76; Plaintiff's Exhibit 6 (hereinafter Pl's Ex. " N.T. 76-77; Pl.'s Ex. 17. 4 8, 2009, Attorney Morgenthal sent an e-mail to Attorney Kerr asking for an update on the status of the draft settlement agreement and asking if Plaintiff would be willing to apply a portion of the $20,000 payment from Defendant to stop foreclosure on the Carlisle Propert Y.24 Attorney Kerr responded that Plaintiff was absolutely unwilling to use any of the $20,000 payment to bring the mortgage on the Carlisle Property current.25 Attorney Kerr and Attorney Morgenthal proceeded to draft, revise, and prepare a written settlement agreement to be signed by Plaintiff and Defendant. 26 Although Defendant was aware that Attorney Kerr and Attorney Morgenthal may have been working on preparing a settlement agreement, he did not know the process had begun and was never consulted about the terms used in the written document.27 The e-mail correspondences and written settlement agreement did not include the contingent, condition precedent term requiring the Carlisle Property be sold within six months for $120,000 as discussed between Plaintiff and Defendant on April 22, 2009.28 Plaintiff and Defendant never signed the prepared written settlement agreement. 29 Discussion Oral Settlement Agreement "There is a strong judicial policy in favor of parties voluntarily settling lawsuits." Rothman v. Fillette, 469 A.2d 543, 546 (Pa. 1983); see also Manzitti v. Amsler, 550 A.2d 537, 543 (Pa. Super. 1988); Greentree Cinemas, Inc. v. Hakim, 432 A.2d 1039, 1041 (Pa. Super. 1981). A settlement agreement "may take the form of written agreements or oral statements, both of which are recognized as valid and enforceable." Storms ex rel. Storms v. O'Malley, 779 A.2d 24 N.T. 79; Pl.'s Ex. 18. 25 N.T. 79; Pl.'s Ex. 18. 26 N.T. 81; Pl.'s Ex. 19. 27 N.T. 128. 2$ N.T. 18, 73; Pl.'s Ex. 6-9, 17-19. 2' N.T. 84-85. 5 548, 557 (Pa. Super. 2001). "The enforceability of settlement agreements is ordinarily determined by general principles of contract law." Id. The Superior Court has elaborated on the general principles of contract law, stating: Contemporary contract law generally provides that a contract is enforceable when the parties reach mutual agreement, exchange consideration and have outlined the terms of their bargain with sufficient clarity. An agreement is sufficiently definite if the parties intended to make a contract and there is a reasonably certain basis upon which a court can provide an appropriate remedy. Greene v. Oliver Realty, Inc_, 526 A.2d 1192, 1194 (Pa. Super. 1987) (citation omitted). "An oral settlement: agreement may be enforceable and legally binding without a writing." Kazanjian v. New England Petroleum Com., 480 A.2d 1153, 1157 (Pa. Super. 1984). "If parties agree upon essential terms and intend them to be binding, `a contract is formed even though they intend to adopt a formal document with additional terms at a later date."' Johnston v. Johnston, 499 A.2d 1074, 1076 (Pa. Super. 1985) (quoting Courier Times, Inc. v. United Feature Syndicate, Inc., 445 A.2d 1288, 1295 (Pa. Super. 1982)); see also Compu Forms Control, Inc. v. Altus Group, Inc., 574 A.2d 618, 624 (Pa. Super. 1990) ("As we have recognized, if the parties agree on essential terms and intend them to be mutually binding, a contract is formed even though the parties intend to adopt a formal document later which will include additional terms."). However, "it is essential to the enforcement of such an [oral settlement agreement] that the minds of the parties should meet on all the terms as well as the subject matter. If anything is left open for future negotiation, the [oral settlement agreement] cannot form the basis of a binding contract." GHM Associates, Inc. v. Prudential Realty Group, 752 A.2d 889, 900 (Pa. Super. 2000) (quoting Isenbergh v. Fleisher, 145 A.2d 903, 907 (Pa. Super. 1958)). Additionally, the Superior Court has said "for a contract to be enforceable, the nature and extent of the mutual obligations must be certain, and the parties must have agreed on the material and necessary 6 details of their bargain" because "[w]hen performance under a contract is uncertain, the court will not write the contract for the parties." Krebs v. United Refining Co. of Penns ly vania, 893 A.2d 776, 783 (Pa. Super. 2006). "When oral contracts are disputed, the issues of what was said, done, and agreed upon by the parties are ones of fact to be determined by the fact finder." Id. at 783. "When there exists conflicting evidence as to whether the parties intended that a particular writing would constitute a complete expression of their agreement, the parties' intent is a question to be resolved by the finder of fact-in this case, the [trial court]." Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999). Therefore, this Court now turns to an analysis of the evidence on record to determine whether an enforceable settlement agreement existed between Plaintiff and Defendant. This Court finds no enforceable oral settlement agreement existed between Plaintiff and Defendant. Plaintiff and Defendant agreed to the essential terms of a settlement agreement but did not intend for their negotiation to be a binding oral contract. Both parties confirm that there was a "meeting of the minds" regarding the terms discussed on Wednesday, April 22, 2009, outside of the preliminary hearing at Bucks County. Both parties agree that the following terms were discussed: (1) Defendant would pay Plaintiff $20,000; (2) Plaintiff would transfer title of the Carlisle property and the 1968 Oldsmobile to Defendant; and (3) the transfer of payment for the titles was conditioned on the sale of the Carlisle property for $120,000 within six months. Although the essential terms were agreed upon, the parties did not have the intention to be bound by their discussion. The subsequent actions of both parties do not demonstrate an intention to be bound by the April 22"d conversation. Plaintiff claims that both parties had agreed to, and were intending to be bound because an oral contract was formed. However, the actions of both parties and 7 representations through their respective attorneys demonstrate that the April 22'd conversation was merely a starting point or a stage in the negotiation rather than a solidified oral contract. This Court finds an April 24th e-mail correspondence by Plaintiff s Attorney, Mr. Kerr, to Defendant's Attorney, Mr. Morgenthal, informative: Ken's offer shall remain open for one (1) week, through May 1, 2009 ... [i]f Frank Kodadek wants to end this ordeal, I need to have the funds by next Friday with a Settlement Agreement acceptable to the parties. Ken will perform his obligations at that time. If not, we will file our lawsuits the following week. Contrary to Plaintiff s claim, the language of an "offer" remaining "open" for a period of time, as well as a need to reach an "acceptable" position with the threat of proceeding with legal action is indicative of an offer to settle rather than memorializing a settlement agreement that had already been achieved. Additionally, Attorney Morgenthal's testimony reinforces the understanding that no settlement agreement was formed prior to the anticipated signing of a written document: Q: Did [Attorney Kerr] ever indicate to you at that point there was a binding oral agreement? A: I don't think that there was any indication there was anything except the discussion and we, our job was to put it into a written form. Q: Now looking back to Exhibit P-6, which is the initial e-mail from John Kerr to yourself, does John Kerr discuss that, that there will be a written settlement agreement being drafted? A: Yes, let me take a look here. Yeah, I need to have the funds with a settlement acceptable to the parties, which implies, yes, there will be something prepared that is signed. The record reflects an understanding that the parties had come to a "handshake" decision to further negotiate a settlement through their attorneys with the purposed terms they had discussed on April 22nd. The e-mail correspondence between their attorneys within two days of Plaintiff and Defendant's conversation represents the hashing out of an actual settlement agreement. This 8 Court refuses to acknowledge that an oral contract was formed when the parties express nothing more than an "agreement to agree" with no intention to be bound by their conversation. Mazella, 739 A.2d at 535. Therefore, this Court finds that the Plaintiff and Defendant did not enter into an enforceable oral contract. Written Settlement Agreement Additionally, this Court finds no enforceable settlement agreement was created between the parties based upon the chain of e-mails between counsel. Plaintiff argues that even if an oral contract did not exist between the parties as of April 22" a, the parties were bound by a settlement agreement that had been formed through a chain of e-mails between counsel from April 24, 2009 to May 15, 2009. Although it is true that Attorney Kerr and Attorney Morgenthal, as of May 15, 2009, had reached a point in negotiations where they believed their clients were amicable to a settlement agreement, even Plaintiff's counsel, Attorney Kerr, was of the understanding that the written agreement would be signed by the parties. The written settlement agreement that counsel had drafted was never signed by their respective clients. Therefore, considering "neither one of the parties trusted each other," this Court finds that Plaintiff and Defendant did not have the intention to be bound by the negotiations of their counsel without first signing the written settlement agreement. Also, this Court finds that Attorney Morgenthal was never given explicit authority to enter into binding settlement agreement. As Plaintiff correctly stated, the Pennsylvania Supreme Court is well settled on the law that an attorney may bind his client to a settlement agreement when express authority has been given. See Reutzel v. Douglas, M.D., 870 A.2d 787, 789-90 (Pa. 2005). However, "[a]s such, a client's attorney may not settle a case without the client's grant of express authority, and such express authority can only exist where the principal 9 specifically grants the agent the authority to perform a certain task on the principal's behalf." Id. at 790 (emphasis added). In the case sub judice, the record does not reflect Defendant giving Attorney Morgenthal a specific grant to bind Defendant to any settlement agreement. To the contrary, Defendant testified as follows: Q: Did you understand that Mr. Kerr and Mr. Morgenthal were attempting to draft and create a written settlement document that both you and Ken would sign? A: I heard something of that. I didn't know that it was actually taking place though. The record lacks any evidence that Attorney Morgenthal had the express authority required under Reutzel, and apparent authority will not meet the strict standard established by the Supreme Court to bind Defendant through Attorney Morgenthal's actions. Id. ("Hannington's statement that an attorney can bind his client to a settlement based on apparent authority alone is simply an incorrect statement of the law ...."). Therefore, this Court finds that no enforceable settlement agreement was formed through the chain of e-mails between Attorney Kerr and Attorney Morgenthal. Condition Precedent Finally, assuming, arguendo, a contract was formed orally on April 22"d, the contract never became enforceable because the condition precedent to sell the Carlisle Property for $120,000 within six months was not met. In Pennsylvania, "[i]t is well settled that if a contract contains a condition precedent, the condition precedent must occur before a duty to perform under the contract arises." Keystone Tech. Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223, 1228-29 (Pa. Super. 2003); see also Acme Markets, Inc. v. Federal Armored Express, Inc., 648 A.2d 1218, 1220 (Pa. Super. 1994). Although the parties may not have expressly used the term "condition precedent," Plaintiff testified that Defendant made clear during the April 22nd 10 discussion that one of the terms of the agreement would be selling of the Carlisle Property within six months for $120,000. Plaintiff did not dispute Defendant's condition requiring the sale of the Carlisle Property within six months for $120,000 and thought that they had an agreement at the end of their conversation. This Court finds that an oral contract formed through the conversations of Plaintiff and Defendant on April 22nd must include the condition precedent of selling the Carlisle Property within six months for at least $120,000. See Acme Markets, Inc., 648 A.2d 1220 ("While the parties to a contract need not utilize any particular words to create a condition precedent, an act or event designated in a contract will not be construed as constituting one unless that clearly appears to have been the parties' intention."). A fair reading of the testimony clearly indicates that Father, Frank Kodadek, did not have the $20,000.00 cash to pay his son. Clearly the house had to be sold in order to have the $20,000.00 cash available for payment to son. The son's continued insistence that the Carlisle property has a serious mold problem for all intents and purposes has made the property unsellable. Therefore, considering the Carlisle Property was never sold for at least $120,000 within six months from the date of April 22nd, a duty to perform under any contract never arose. Conclusion This Court finds that no enforceable settlement agreement formed between Plaintiff and Defendant. Accordingly the following Order is entered: AND NOW, this 12'h day of December, 2011, after non jury trial in the above captioned matter and in consideration of the post trial briefs filed by the parties, 11 IT IS HEREBY ORDERED AND DIRECTED that the Court finds in favor of the Defendant, Frank Kodadek and accordingly judgment is entered in his favor. By the Court, ?? JV" M. L. Ebert, Jr., J. John M. Kerr, Esquire Attorney for Plaintiff Peter M. Good, Esquire Jessica E. Mercy, Esquire Attorneys for Defendant 12