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HomeMy WebLinkAbout09-5621FRANK KODADEK, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : NO.09- 57&a I EQUITY KENNETH F. KODADEK, EQUITY -PARTITION DEFENDANT JURY TRIAL DEMANDED N O T I C E OU ItAN'F BEE, N SUED IN "OURT. If you, wish co u::fend against the . .:,Yis ae 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. IF YOU CANNOT AFFORD 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 2 Liberty Avenue Carlisle. PA 17013 (717) 249-3166 or 1-800-990-9108 FRANK KODADEK, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 09- KENNETH F. KODADEK, EQUITY -PARTITION DEFENDANT JURY TRIAL DEMANDED AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier stuna de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFRF?CA-N SERVICIOS, LEC ^ LES SPNI C ":RGO Q B.AJO COSTO A PERSO??'4.S Q[.JE. CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 1. 2. 3 FRANK KODADEK, PLAINTIFF V. KENNETH F. KODADEK, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09- -2 EQUITY - PARTITION JURY TRIAL DEMANDED COMPLAINT AND NO-W comes,Frauk Kodadek, Plaintiff in the abovc;-captioned action, by his attorneys Smigel, Anderson & Sacks, LLP and states the following: Plaintiff, Frank Kodadek, is an adult individual residing at 246 Old York Road, Dillsburg, Pennsylvania 17019. Defendant, Kenneth F. Kodadek, is an adult individual, sui juris, whose present or last known address is 5 Mountain View Road, Carlisle, Pennsylvania 17013. Plaintiff and Defendant are the owners of certain real estate with the improvements thereon erected in Cumberland County, Pennsylvania, as described below, and the interest of the parties in the property are held as joint tenants with the right of survivorship and not as tenants in common. 4. The parties acquired title to the property known as 3198 Enoia Road, Carlisle, Pennsylvania 17013, by deed from George S. Smith, Jr. and Linda L. Smith, his wife, dated December 15, 2004, and recorded in the Office for the Recorder of Deeds of Cumberland County in Deed Book 266, Page 3657, wherein said Grantors George S. Smith, Jr. and Linda L. Smith conveyed: ALL that certain tract of land with the improvements thereon erected, situate in Lower Frankford Township, Cumberland County, Pennsylvania, and being more fully bounded and described according to survey made by Noel B. Smith, Registered Surveyor, dated January, 1970, as follows: BEGINNING at a point at the intersection of the center lines of Pennsylvania Legislative Route 944 and Township Route T-458; thence from said beginning point by the center line of said Township Route "I'-458 by property of J. Clausen, North 18 degrees 18 minutes West 162.00 feet to a spike; thence by property formerly of J. Bryan and Edna G. Ensminger and now or formerly of Glenn L. and Marcella E. Young North 85 degrees 44 minutes East 362.17 feet to an iron pin; thence by same South 18 degrees 18 minutes East 226.94 feet to a point in the center line of Pennsylvania Legislative Route 944; thence by the center line of Pennsylvania Legislative Route 944 the following three courses and distances: (1) North 83 degrees 34 minutes West 202.55 feet; (2) North 84 degrees 27 minutes West 97.37 feet; (3) North 88 degrees 14 minutes West 83.41 feet to the place of beginning. CONTAINING 1.54 acres and being improved with a one and one-half story dwelling house with an address of 3298 Enola Road, Carlisle, PA 17013. 5. Said property is held equally between the parties with Plaintiff and Defendant each having a one-half interest therein. 6. Said property is subject to a certain mortgage of $75,000.00 secured on the said property, dated December 15, 2004 and recorder in the Office for the Recorder of Deeds of L umberla}nd County in N1ortgge hook 1891, Page 269 . 7. No person other than the parties to this suit has any interest in the property, which is presently unoccupied and under the control of the said parties. 8. No partition or division of the property has ever been made, although Plaintiff has requested the Defendant to join with him in making one. WHEREFORE, Plaintiff demands that: a. The Court decree partition of the real estate; b. The share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying out such partition into effect; c. That, if the real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary sale or sales of the same may be made such persons and in such manner as the Court may direct; and d. Such other and further relief be granted as the Court just deems just and proper. SMIGEL, ANDERSON & SACKS, LLP DATED: C O Z 0 -1? M A BY:_- Roger M. Morgenthal, quire Attorneys for Plaintiff ID #17143 4431 North Front Street, 3`d Floor Harrisburg, PA 17110 (717) 234-2401 VERIFICATION I, Frank Kodadek, verify that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: 7 L/0 IYo °I 3?-4? Kr/a" FRANK KODADEK 0 r -$g8. 5o P A ATT-/ asoi1 Sheriffs Office of Cumberland County ALED t- R Thomas Kline OF .M= ?',' `''+? { jT+ QY Sheriff ?r ofu,wt??rf Ronny R Anderson u4? "?'?409 A'G 24 A IL` 4 Chief Deputy Jody S Smith Civil Process Sergeant OFF CE OF ',-E s ER'FF Edward L Schorpp Solicitor Frank Kodadek Case Number vs. Kenneth F. Kodadek 2009-5621 SHERIFF'S RETURN OF SERVICE 08/19/2009 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: Kenneth F. Kodadek, but was unable to locate him in his bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Kenneth F. Kodadek. Resident of 5 Mountain View Drive Carlisle, PA 17013 is the defendant's mother in law. She stated the defendant has moved to Indiana, his current address is 905 N. Honeysuckle Lane LaPorte, IN 46350. SHERIFF COST: $38.84 SO AN$u,11ERS, iJ August 20, 2009 y R TH MAS KLINE, SHERIFF 77°° FRANK KODADEK, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-5621 EQUITY KENNETH F. KODADEK, EQUITY PARTITION DEFENDANT JURY TRIAL DEMANDED PRAECIPE TO: Prothonotary of Cumberland County Kindly reinstate the Complaint in the above-captioned action. Respectfully submitted, SMIGEL, ANDERSON & SACKS. LLP BY: Rol er M. Morgenthal, Esquire ID #17143 Attorneys for Plaintiff 4431 N. Front St., 3rd Floor Harrisburg, PA 17110 (717) 234-2401 DATED: 11/9/09 FiLL -1--T'CE nlP THE P7'= . "NOTARY 2009 NOY 10 AH : 4 9 ??? r VV C?f a y sti .2 33X 8? FRANK KODADEK, IN THE COURT OF COMMON PLEAS PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVAN IA v. NO. 09-5621 EQUITY KENNETH F. KODADEK, :EQUITY PARTITION DEFENDANT :JURY TRIAL DEMANDED ~ N © Cn ~~ ~ PRAECIPE ~ ..; . ~, rn ~ _ tr~, ~' 1 TO: Prothonotary of Cumberland County r~ _;: ~ .~- z ,._ ~ -, `o ~ O~ Kindly reinstate the Complaint in the above-captioned action. ~ ~ ~ c.n v Respectfully submitted, SMIGEL, ANDERSON & SACKS. LLP BY: ~ V ~~' Roger M. Morgent 1, Esquire ID #17143 Attorneys for Plaintiff 4431 N. Front St., 3`d Floor Harrisburg, PA 17110 (717) 234-2401 DATED: 02/23/2010 `-~' ~~l-~lG~ .~~~ ~~ ~7bv~~lf~7~ (,~~' ~c~~/acs ~~~ a~~~ .y y ( I r- SMIGEL, ANDERSON & SACKS, LLP Roger M. Morgenthal, Esquire River Chase Office Center M. No. 17143 4431 North Front Street, 3rd Floor Darryl J. Liguori, Esquire Harrisburg, PA 17110-1778 77 p l~ I.D. No. 91715 (717) 234-2401 Attorneys for Plaintiff FRANK KODADEK, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-5621 EQUITY KENNETH F. KODADEK, EQUITY PARTITION DEFENDANT JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTION TO PARTITION COMPLAINT AND NOW COMES, Plaintiff Frank Kodadek (hereinafter "Plaintiff'), by and through his counsel Smigel, Anderson & Sacks, LLP, who responds to Defendant's Preliminary Objection to Plaintiffs Partition Complaint as follows: BACKGROUND 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. It is admitted only that Defendant filed a Complaint in Equity Seeking Specific Performance of Settlement Agreement on July 16, 2009. The remainder of the averments are denied because the Complaint Defendant references is a writing which speaks for itself, and therefore Defendant's summaries, conclusions, or characterizations made regarding that writing are specifically denied. 6. Admitted. 7. Admitted. 8. Admitted. PRELIMINARY OBJECTION - PENDENCY OF A PRIOR ACTION 9. This is an incorporation paragraph to which no responsive pleading is required. 10. Denied. The averments in Paragraph 10 attempt to characterize the averments contained in the Complaint, which averments speak for themselves. No responsive pleading is therefore required. 11. Denied. The averments in Paragraph 10 attempt to characterize the averments contained in the Complaint, which averments speak for themselves. No responsive pleading is therefore required. 12. Denied. The averments in Paragraph 10 attempt to characterize the averments contained in the Complaint, which averments speak for themselves. No responsive pleading is therefore required. 13. Denied. After a bench trial on the Kenneth F. Kodadek's Complaint in Equity Seeking Specific Performance of Settlement Agreement, docketed at Cumberland County Docket No. 09-4723, the Honorable M. L. Ebert, Jr. entered a verdict in favor of Frank Kodadek on December 12, 2011. A true and correct copy of Judge Ebert's Order and Opinion is attached hereto as "Exhibit A." Therefore, Defendant's Preliminary Objection based upon the pendency of a prior action are now moot and should be overruled. WHEREFORE, Plaintiff Frank Kodadek respectfully request this Honorable Court to overrule Defendant's Preliminary Objection as moot and order Defendant to file an Answer to Plaintiffs Partition Complaint. Respectfully submitted, SMIGEL, ANDERSON & SACKS, L.L.P. Date: May 3, 2012 By: Rog M. Morg nthal, quire - ID # 17143 Darryl J. Liguori, Esquire - ID # 91715 4431 North Front Street, 3`d Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff Z?r? 10 D ?9 83S'- ?''7 KENNETH F. KODADEK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA C7- -.f .: V. -u z r? `I :ta ~, P'i't FRANK KODADEK, NO. 09-4723 CIVIL ca :; Defendant IN RE: NON-JURY TRIAL ORDER OF COURT AND NOW, this 12d' 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 rinds in favor of the Defendant, Frank Kodadek and accordingly judgment is entered in his favor. By the Court, 'V\ -1, A M. L. Ebert, Jr., John M. Kerr, Esquire Attorney for Plaintiff Peter M. Good, Esquire Jessica E. Mercy, Esquire Attorneys for De-fendant ---- _"_ jo As $l41 TRUE GCJPrY R0M' F-CORD 7"Patqft ll??'J 3 o s eyl pus in TeWmdny' whv* . I here unto set my hand o3un.ei}oe ieq list ul` and 1 ot.sa* urt.at car1131a, `f (311003 Old -4 Ad00 3- nd.L Thb-`"aY prothono 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.2 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. 2 N.T. 12. 3 N.T.12-13. 4 N.T.13-14. 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 Property.6 The Carlisle Property was jointly titled in the names of both Plaintiff and Defendant. 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.8 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 fiends, however, both vehicles were titled in both Defendant and Plaintiff's name.' 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. 6 N.T. 13. ' N.T. 13. ' N.T. 10. 9 N.T. 108, 111. 10 N.T. 63, 102, 108. ' N.T. 15. 2 Q: Was that the same thing, six, 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. " N.T. 16. 14 NX. 16. 3 A the vehicle, decided to file criminal charges against his own father in. Bucks County. 15 preliminary hearing on the charges was held on Wednesday, April 22, 2009.16 The charges against Defendant were dismissed." 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 is N.T. 17. 16 N.T. 17. 17 N.T. t7,59. is 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 Property. 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 regturing the Carlisle Property be sold within six months for $120,000 as discussed between Plaintiff and Defendant on April 22, 200928 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 2' 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. 28 N.T. 18,73; Pl.'s Ex. 6-9,17-19. 29 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." Kazaniian v New England Petroleum Coro., 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 Tsenbergh 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 Pennsylvania, 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 22nd conversation was merely a starting point or a stage in the negotiation rather than a solidified oral contract. This Court finds an April 24 h 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 Ken] 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 22d. 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 a-mails between counsel. Plaintiff argues that even if an oral contract did not exist between the parties as of April 22°d, the parties were bound by a settlement agreement that had been formed through a chain of a-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 22"d 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 22"d 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 22"d, 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, M. L. Ebert, Jr., J. John M. Kerr, Esquire Attorney for Plaintiff Peter M. Good, Esquire Jessica E. Mercy, Esquire Attorneys for Defendant 12 SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 FRANK KODADEK, PLAINTIFF V. KENNETH F. KODADEK, DEFENDANT Roger M. Morgenthal, Esquire I.D. No. 17143 Darryl J. Liguori, Esquire I.D. No. 91715 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 09-5621 EQUITY EQUITY PARTITION JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Roger M. Morgenthal, Esquire, attorney for Plaintiff, hereby certify that I this day have served a true and correct copy of the foregoing Answer to Defendant's PreliminM Objection to Plaintiffs Partition Complaint upon the person(s) indicated below by depositing the same in the U.S. Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: John M. Kerr, Esquire 5020 Ritter Road Suite 109 Mechanicsburg, PA 17055 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. Date: May 3, 2012 By: Roger M. Morgenth , Esquire - ID #17143 Darryl J. Liguori, Esquire - ID # 91715 4431 North Front Street, 3`d Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff 0 - 14 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE FRANK KODADEK, IN THE COURT OF COMMON PLEAS PLAINTIFF PENNSYLVANIArnrri CUMBERLAND COUNTY -- , v. NO. 09-5621 EQUITY KENNETH F. KODADEK, EQUITY PARTITION DEFENDANT =?=CD _- c: . 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer tc?7• complaint, etc.): Defendant's Preliminary Objection to Partition Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Roger M. Morgenthal, Esq., 4431 North Front Street, Third Floor, Harrisburg, PA 17110- (b) for defendants: John M. Kerr, Esq., 5020 Ritter Road, Suite 109, Mechanicsburg, PA 17055 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: June 1. 2012. Signature: Print your name: Roger M. Morgenthal, Esq. Attorney for Plaintiff Date: May 3, 2012 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 00*1? 118 q -c> a??o?1y gl0 FRANK KODADEK, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-5621 EQUITY KENNETH F. KODADEK, EQUITY PARTITION DEFENDANT JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Roger M. Morgenthal, Esquire, attorney for Plaintiff, hereby certify that I this day have served a true and correct copy of the foregoing Praecipe for Listing Case for Argument upon the person(s) indicated below by depositing the same in the U.S. Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: John M. Kerr, Esquire 5020 Ritter Road Suite 109 Mechanicsburg, PA 17055 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. Date: May 3, 2012 By: m Roger M. Morgenthal, squire - ID # 17143 Darryl J. Liguori, Esquire - ID # 91715 4431 North Front Street, 3`d Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff FRANK KODADEK, NO. 09-5621 V. Plaintiff KENNETH F. KODADEK, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CONTY,PENNSYLVANIA EQU ITY - PARTITION JURY TRIAL DEMANDED r? M ?„ 1T3 -.- < ca ?i c.n PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO THE PROTHONOTARY: Kindly withdraw the Preliminary Objections in the above-captioned matter, filed of record on June 2, 2010, entitled, "Defendant Kenneth Kodadek's Preliminary Objection To Partition Complaint." That Preliminary Objection, which was based upon the pendency of a prior action, is now moot as the prior action was resolved by the Court in December, 2011. Respectfully submitted, a &/__ Jo M. Kerr, Esquire Attorney I.D.#26414 John Kerr Law, P.C. 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 (717) 766-4008 ?ohni'rr a?e._ PC 5020 Ritter Road Suite 104 Mechardcsburg,PA 17055 PrioNE: 717.766.4008 FAx: 717.766.4066 Dated: May 15, 2012 CERTIFICATE OF SERVICE The undersigned hereby certifies that he has served a copy of the foregoing, "Praecipe To Withdraw Preliminary Objections," on the below-named individual in the manner indicated: First-Class Mail Postage Prepaid Roger Morgenthau, Esquire Smigel, Anderson & Sacks, LLP 4431 North Front Street, 3d Floor Harrisburg, PA 17110-1778 Jo n M. Kerr, Esquire 5 20 Ritter Road Suite 104 Mechanicsburg, PA 17055 (717) 766-4008 Dated: May 15, 2012 YIo,n 1<1 rr aw_. PC 5020 Rdtter Road Suite 104 Mechanicsburg, PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 FRANK KODADEK, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA - v. : NO 09-5621 EQUITY KENNETH F. KODADEK, : EQUITY PARTITION t ==s DEFENDANT : JURY TRIAL DEMANDED Frn r:? PRAECIPE TO WITHDRAW y' - TO PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark Plaintiff's Complaint in the above-captioned action as WITHDRAWN. Respectfully submitted, SMIGEL, ANDERSON & SACKS. LLP DATED: 11/12/2013 By: ? Roger M. Morgenthal, Esquire ID #17143 Darryl J. Liguori, Esquire ID #91715 4431 N. Front St., 3`d Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff FRANK KODADEK, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 09-5621 EQUITY KENNETH F. KODADEK, : EQUITY PARTITION DEFENDANT : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Darryl J. Liguori, Esquire, attorney for Plaintiff, hereby certify that I this day have served a true and correct copy of the foregoing Praecipe to Withdraw Complaint upon the person(s) indicated below by depositing the same in the U.S. Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, and addressed as follows: John M. Kerr, Esquire 5020 Ritter Road Suite 109 Mechanicsburg, PA 17055 Attorney for Defendant SMIGEL, ANDERSON & SACKS, L.L.P. 2013 B Date: November 12, y Roger M. Morgenthal, Esquire—ID #17143 Darryl J. Liguori, Esquire—ID # 91715 4431 North Front Street, 3rd Floor Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff