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HomeMy WebLinkAbout09-7696FIED MAILTr., RECEIPT 7d11P111Y tal Service,,,, Mail .only; NoslnsuranceCoverage Provided) information visit our website at www.usps.comD ru I r9 E• ru ru O O O 0 r-q co ru CIO O O 17- Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) costal Service,,, ITIFIFD MAIL- RECEIF (Domestic Mall Qnly, No insurance coverage rroviaeal For delivery information visit our website at www.usps.comm SHIPPERSBURG PA 17257 ru Q' Postage $ rU Certified Fee $2.80 -' 09 v -?' ru ll Post*rk - O Return Receipt Fee 3 (Endorsement Required) $2. all Here E M Restricted Delivery Fee ill G ' C3 (Endorsement Required) lu. J r-=i co Total Postage & Fees $ $5. 7 1 11/1019/2009 _._... _ `- ru C3 Sent o tent To ?ln L - ------Apt. No ------ S`treet, Stret, Apt. 9, or PO Box No. PO Box NoIP+4 -S?.-°-- - - St t A -'^-ZIP+4 ? ate„ Z :1, 'f PS Form 3800. AUgLlst 2006 See Reverse for Instructions PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served Fes` a copy of the Notice of Appeal, Common Pleas upon the District Justice designated therein on (date of service) 200, ? by personal service Qd by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) 15my M.. 114-.11-1 -,on ` .? ..?? ' 20? ? by personal service a by (certified) (registered) mail, sender's receipt attached hereto. (SWORN FFIRMED) AND SUBSCRIBED BEFORE ME THI DAY OF 20Of- Signature of official befor whom affi avit was made L u, Signature ofaffiant Title of official ? My commission expires on 20 o fa CO*40NWEALTH OF PENNSYLVANtA = C . M Fn NOTARIAL SEAL , Harold S. Irwin Iii, Esq, Notary Public } - Carlisle, Cumberland Catitty c 2011 > c' - Q M commasim W L COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of t (/M? f C FROM C7 t - .w DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 1 t '?(pQ(o ±?; ?? ; y ?_r' s -r) NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. >?/1! l' ?f C f? L.?? M .w7 `? (.? It f'?'f ?'?7/" f•-'? ?..? l..- ???"?'????..?,? {d;r^ *t,}A e? ? 1a is required under Pa. If appellant was (see Pa. R. .D.J. No. 1001(6) in action R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A bOMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. signature of Prorhwiaary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal f Name of appettee(s) (Common Pleas No. - 'T(pQ(o if t'V i Tetrr) within twenty (20) days after service of rule or suffer entry of judgment of non pros. r?^ Signature of appellant or attorney or agent RULE: To f 4 i f "IL 0_14k appellee(s) Name of a Mee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upovyouu lx : pgrsonal service or by certified or registered mail. (2) -if you do not file a`com*?aint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) 'The date of service of toffs rule if service was by mail is the date of the mailing. Date: - ( 20[)9 No V SignatN I Prothonotary or Deputy 1 't`O „MUST INCLUDE At COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE- COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANTS COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE 1. COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of aq- I-0r NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. (9-%g(DCiyi 1 Term NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. 0694 Ric c (o? - 3 -oI _I 11? 0 6. 1D.5"d .QE6•vs?Rrnr RO /7 2-1- 1 vs C46 (f V/- 0000"z-61- 04 This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 100813. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Sipufum W P-M-Omy -DWAY was No. 1 1(6) in action before a District Justice, A L`9MPLAINT MUST BE FILED within twenty (20) days after Kling the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon 13,19 /Q/hL A A'YA,9--v( appellee(s), to file a complaint in this appeal • Name of 8pP"*g3) (Common Pleas No. QQ _ within twenty (20) days after se ice of rule or suffer entry of judgment of non pros. rte oraPPellanr oraMomey or agent RULE: 70 !/?j/f?+! 3^A ?t/,L, (/l//4?iG? , appellee(s) Name of eels) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: NOV '2009 S A ?• D Piotlronofary or D" YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE- COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW- APPELLANTS COPY PINK - COPY TO BE SERVED ON APPELLEE GOLD - COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of affiant Signature of official before whom affidavit was made TWO Of official My commission expires on 20 mlvvr u+ "TVII`MH 6x1£1 *30 Od sV34 ??p nr. ,,,) r 1?iN BE :£ Wd 9- AON 6002 AWiO1` UHiOdd 3F- ijo 301!_I"3lfd COMMONWEALTH OF PENNSYLVANIA COHNTY np. CUMBERLAND Mag. Dist. No.: 09-3-01 MDJ Name: Hon. HAROLD E. BENDER Address: 35 W ORANGE ST SHIPPENSBURG, PA Telephone: (717 532 - 7676 17257 - 0361 ATTORNEY DEF PRIVATE : HAROLD S. IRNIN 64 S PITT ST IRWIN LAW OFFICE CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF ® Judgment was entered for: NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS FWARD BA , RBARA KYNER 8 THOMPSON CREEK DRIVE SHIPPENSBURG, PA 17257 L J VS. DEFENDANT: NAME and ADDRESS T RICE, VERA 1050 GREENSPRING RD NENVILLE, PA 17241 L J DocketNo.: CV-0000261-09 Date Filed: 9/15/09 _ (Date of Judgment) 10/28/09 (Name) WARD, BARBARA KYNER ® Judgment was entered against: (Name) RICE, VERA in the amount of $ 7,417.222- F-1 Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. F] Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ i • aoa .4A Judgment Costs $ 134.50 Interest on Judgment $ .00 Attorney Fees $ Total $ 7,417.22 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. I Date , Magisterial District J I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date My commission expires first Monday of January, 2012 AOPC 315-07 , Magisterial District Judge SEAL DATE PRINTED: 10/28/09 3:56:00 PM ¦ Compute items 1, 2, and 3. Also complete item 4 0 Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpieo% or on the front If space permits. 1. Article Addressed to: HON HAROLD E. BENDER 35 W O.ranae Street Shiione?ishura, PA 17257 A. X 7 k-?"C B. ?NMQ by ( fYarrre) D. Is debmry address different from item 1? 0 Yes If YES, enter delivery address below: 0 No 3. *Vlcs type Csrtifled Mall ? Express Mail ? Registered 0 Retum Receipt for Merchandise ? Insured Mali 0 C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (Transfer from swvloe iebef) 2 Q 1 n n n n i 1911 1;41n PS Form 3811, February 2004 Domestic Return Receipt 102595-02-ir IFAO ¦ Complete Items 1, 2, and 3. Also complete Item 4 If Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can retum the card to you. ¦ Attach this card to the back of the malipiece, or on the frorit N space permits. 1. Article Addressed to: MC R RRARA VVm7?t WA-n R mh *?=-n t vaalr 1r _ Chi nncsnal?»rn _ AA 1 77ri 2, Article Number (TParWW (ion/ aerWce krW PS Form 3811, February 2004 7008 A, r I I k by (P*r? B.;fleoelvedf? D. Is delivery address di ferent from Kern 14 0 Yjes?° if YES, enter deNvery address below: 0 No 3. Type CerWAd Mail 0 Express Mail 13 Registered 0 Return Receipt for Merchandise 0 Insured mail ? C.O.D. 4. Re*Icted Delivery? (Exba Fee) 17 Yes 2810 0002 2912 5403 4i7 1 Return Reoela 102505.02-M-15x0 BARBARA KYNER WARD, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v No. 09-7696 CIVIL VERA RICE, RODNEY E. RICE and SANDRA J. RICE Defendants 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 aze 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 aze warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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 32 South Bedford Street Cazlisle, Pennsylvania 17013 717-249-3166 OR 1-800-990-9108 WEIGLE & ASSOCIATES, P. C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 BARBARA KYNER WARD, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v No. 09-7696 CIVIL VERA RICE, RODNEY E. RICE and SANDRA J. RICE Defendants COMPLAINT AND NOW comes the Plaintiff, Bazbaza Kyner Wazd, pursuant to a notice of appeal from a money Judgment entered in Magisterial District Court 09-3-01 on October 28, 2009 by the Defendant, Vera Rice, by and through her attorney, Jerry A. Weigle, Esquire, and Weigle & Associates, P.C., and in support of her claim, states the following: COUNTI (EQUITABLE RELIEF SOUGHT) 1. Plaintiff Bazbaza Kyner Wazd is an adult individual residing along with her present husband, Rufus M. Ward, at 8 Thompson Creek Drive, Shippensburg, Southampton Township, Cumberland County, Pennsylvania. 2. Defendant Vera Rice is an adult widow presently residing at 1050 Greenspring Road, Newville, Cumberland County, Pennsylvania. 3. Defendants Rodney E. Rice and Sandra J. Rice, husband wife aze adult individuals presently residing at 89 Hershey Road, Shippensburg, Southampton Township, Cumberland County, Pennsylvania. 4. Defendant Vera Rice and her husband, Jacob W Rice, took legal title to the above referenced 89 Hershey Road real estate, with home improvements erected thereon, by deed dated Mazch 29, 1988, and recorded in Cumberland County Deed Book G Vol. 33 at Page 201. The said Jacob W. Rice has since died thereby vesting sole legal title in the Defendant, Vera Rice, as surviving tenant by the entirety. WEIGLE & ASSOCIATES, P.C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 5. Prior to the above described deed of conveyance Defendants Rodney Rice and Sandra Rice entered into an agreement of sale to purchase the said 89 Hershey Road property, a copy of which is attached hereto, made a part hereof and marked "Exhibit A". 6. At all times relevant to this proceeding the above referenced real estate known as 89 Hershey Road, Shippensburg, Southampton Township, Cumberland County, Pennsylvania has been occupied by Defendants, Rodney Rice and Sandra Rice as their primary residence. 7. At all times relevant to this proceeding Defendants' property has been subject to an easement to provide water and sewer service to Plaintiffs property pursuant to a Cumberland County Orders of Court dated September 27, 1978, and May 10, 1979, copies of which are attached hereto, made a part hereof and mazked "Exhibit B". 8. The Plaintiff and her then husband, Bradley S. Kyner took title to the property to be serviced by the above referenced Court Ordered water and sewer easement by Deed dated September 14, 1979 and recorded in Cumberland County Deed Book S Vol. 28 at Page 685, a copy of which is attached hereto, made a part hereof, and mazked "Exhibit C". The Plaintiff took sole title to said real estate by deed dated Januazy 14, 1986, from Bradley S. Kyner, which deed is recorded in Cumberland County Deed Book V, Vo1.31 at page 346, a copy of which is attached hereto, made a part hereof, and marked "Exhibit D". 9. At all times relevant to this proceeding all of the Defendants knew or reasonably should have known about Plaintiff s right to water and sewer service from the 89 Hershey Road property. 10. During the month of February, 2005, Plaintiff noticed a sudden and severe loss of water pressure to her home and thereupon notified Defendant, Rodney Rice of the problem. WEIGLE & ASSOCIATES, P.C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 11. During the month of March, 2005, Plaintiff discussed the water pressure issue with the Defendant, Vera Rice and that the cause might be a break of some kind in the line connected to the well which serviced both the Rice property and the Plaintiff's residence. 12. Defendants have refused to acknowledge Plaintiff s requests for inspection, repair and/or maintenance of the water system furnishing Plaintiff's residence and refused to permit Plaintiff and/or her representatives to enter the property of Defendants to inspect, repair and/or maintain the said water system. 13. Defendant, Rodney Rice turned the water service to Plaintiff's property off completely on or about September 2001, then restored service after correspondence from Plaintiff s counsel was sent to Defendant Vera Rice and assurances were received from Defendant Vera Rice that water service would be restored. 14. Defendant Rodney Rice again turned the water service to Plaintiff's property off completely during the month of October 2008; water service has not been restored as of the date of this Complaint. 15. Plaintiff s property is now serviced by public sewer so that the sewer service to be provided to Plaintiffs property from the Defendant's property is not an issue in this litigation. 16. Plaintiff has since drilled her own well on her own property to provide potable water at an adequate pressure to her home at a total cost of $7,282.72. Copies of all cost receipts issued for the new well are attached hereto, made a part hereof and marked "Exhibit E". 17. Defendants' actions in failing to properly inspect, repair and/or maintain the water system servicing Plaintiffs home residence or in permitting the Plaintiff to cause the system to be repaired with the question of who pays for said repairs to be determined at a WEIGLE & ASSOCIATES. P.C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 later date has caused Plaintiff and her family great expense inconvenience and annoyance. 18. By reason of Defendants' actions, Plaintiff has been denied access to water service to her home residence in total and complete disregard to the Order of Court previously entered by this Honorable Court. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter the following equitable relief: (a) to order Defendant to refrain from further interfering with or obstructing Plaintiff's easement or right of way over Defendant's land; (b) to restore water service to Plaintiff s property immediately; (c) to award damages for deprivation of the use of the water system or Defendants property in an amount at least equal to the amount expended by Defendant for a new water system, plus interest, costs of suit, and reasonable attorney's fees; (d) to retain jurisdiction to this matter to ascertain that the Court's previous decree is obeyed; and (e) to order such other equitable relief as the Court may deem appropriate and just. COUNT II (INTENTIONAL TORTIOUS CONDUCT TOWARD REAL ESTATE) AND NOW comes the Plaintiff, Barbara Kyner Ward, by and through her attorney, Jerry A. Weigle, Esquire, and Weigle & Associates, P.C., who sets forth the following claim sounding in tort for the intentional violation of Plaintiff s property rights: 19. The averments set forth in Paragraphs 1 through 18 of this Complaint are incorporated by reference as though the same were fully set forth herein. WEIGLE & ASSOCIATES, P.C. -ATTORNEYS AT LAW - 726 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 20. The actions of the Defendants in failing to repair and maintain the water line from the well on their premises to the Plaintiff's property or not permitting the Plaintiff the opportunity to ascertain the problem and to make necessary repairs caused the water pressure to diminish greatly thereby interfering with the property rights and privileges and with respect to the use or enjoyment of Plaintiffs legal right to obtain a potable water supply from Defendants' property. 21. Defendants caused the water supply to Plaintiff's property to end completely during the month of October 2008, thereby creating a substantial and permanent interference with Plaintiff's right to use and enjoy her home residence in a reasonable manner. 22. Since calendar year 2005 culminating in a final shut off of Plaintiffs' water supply in late 2008, Plaintiff informed Defendants on numerous occasions of the decreasing water pressure. 23. The failure to maintain the waterline and to completely shut off the water source was willful, intentional, unreasonable, unjustified, and illegal. 24. Defendants' conduct has deprived Plaintiff of her legally obtained property right. 25. Defendants' have failed in their duty to respect the property rights of Plaintiff and have affected the condition of her real estate. 26. Defendants' conduct is the legal cause of the invasion of Plaintiff's property interest. 27. At all times relevant hereto, Defendants knew or should have known and have been on notice that Plaintiff had a legal right of access to water on Defendants property pursuant to the Order of Court entered September 27, 1978. WEIGLE & ASSOCIATES, P.C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-]397 28. The actions of the Defendants described hereinabove constitute a intentional tortuous and unlawful interference with the rights of the Plaintiff. 29. Plaintiff has sustained costs and expenses in the total amount of $ 7,282.72 as a direct result of Defendants willful, intentional, unreasonable, unjustified, and illegal tortuous actions. WHEREFORE, Plaintiff demands judgment against the Defendants in the amount of $ 7,282.72, interest thereon in the legal rate, costs, and reasonable attorneys fees and such other relief as the Court may determine to be just and reasonable. Respectfully submitted, WEIGLE & ASSOCIATES, P.C. .~-, _ ~/ 1 ~ ~ J/ 7 A. We~le, Esquire A orney for Plaintiff Supreme Court ID # 01624 126 East King Street Shippensburg, PA 17257 717-532-7388 WEIGLE & ASSOCIATES, P.C. -ATTORNEYS AT LAW - 1Z6 EAST KING STREET - SHIPPENSBURG, PA 172 5 7-139 7 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Dated: ~ ~ ~~~ --~"' Barbara Kyner W d WEIGLE 6c ASSOCIATES, P.C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-7397 Exhibit A , .r ,,. ,. - nr;;xlr>rMENT FOR THE SALE OF REAL ESTATE " '' T & C 1969A i r~ ~l _ Rev. 3-85 . , , ,,;.This form. recommended' ahd approved Cor, but not restricted to ~ ) ~''~°° ~~~ '' ~ `t~ s ~ ' 'use by members oClhcPennsylvania Association of REALTORS® (~ ( 1-88) 1,..wbim.Ntr :, , ,; ses ,,;. COP,,YRIGHT,PENNSYLVANIA,ASS.OCIATION OF REALTORSm,1973~ :w` ~ ~ ~ :.~ Z. Yellow. .ASenl 3 ~ ~ r S .I rrii_ .~ . , ~ .1- ~. ~ ~. . i. nntr e"Y ~ AGEN'[I FOR THE SELLER SUB AGENT FOR SELLER I s ,ewe ,,r ~g ,~! /' Cold ~., •.M«!teYa ?~. l~~?!/ 1~., f y/ ~J`~o~"r'/Y1'~ F S~ '~ >•~./n ~1.~ /~"1~.!yJ,7~T/ ~% f~'i %"/ _ " s. own .......... suyer~ ~ 7 + p;r v / f 2 S/}~1 fir. ~. ; ~~.r~. P7 •t nm of iftnin~. ~ •' ~ ! L -7 LJ ,1 nn,tx~r1,3 ,tU~l dr1, A I ~, / r - PA LICENSED BROKER PA. LICENSED BROKER , r{ iftlr'tl~,}3`JiY$!idr,1'Iflf^[,Ft7111a A'! thi f5~ Y -r + ~ 1 I ~~''(( {a5 r ,u31.~ trr a~ 1, ,, 4 li H t ~ S.L~t~l, ~~~~~y4t61s . ,,r.+ „u , J,.,~~ : ,I l ..I~~day of 1?') ~ ~ri/ ... A D 19 ~ ~.... . i' 1!J ., ,t~.a'ir. sSr+ti'INg+ltl~sicr:~l11$1N>lit~19~'fdrl~y e•- il~rf> • •1~ i i vj ~•d ~ ta,: c I { PRINCIIsAL$ (1 78) Belweeati t~ ~ '~ ~~~' ' IPrQ J/:~ (1~ ~~v ` l (reBrdmg at ~ ~ ~ !J ~ ~ ~•~ ~ G l "', ar In lt,,,{ , G _ C sl,~ 1,~~~~ 8X~G5! ~~ I Zip r~t2 ,~ 7 ) hereinafter coiled Seller, ,.and if?Hft,. n~ n,rf~F~ ~.1ffl.~Il r ~{5 ~~{'~ r > ,l 11 li t ~ , (restdmgat, , ./..~'.r7, , ~.,.~ 4~'a54,;/ b'/V `:.: ...:'.....1.....-t'atr`.l ~ti'~~t/.,~.',(,t:ra'l~k't.y:.?'."."/t..... ...... Z1µ! ~ •1,x:7. ..) hereinafter celled Buyer. ............ : PROPERTY. (3-85} Sellef lieteby agrees to sell and convey to Buyer! who hereby agrees to purchase: ' THAT ERTAIN-lot or piece of ground with buildings andimproremegts thereon erected if any known as ;; ~ ~': ~ .'; .3La~.. `.°~: ~ ~; ....S~i. ~r"i''l,..i!s',C~'r!.tf ~~ :...f.'.!s!..', ,:, !.."J, ~: 3' :~ ................: . ::.: . '.'in tfie'~ U' ~ ,!~y'}`}!~f r !'tl of~? .s!' N y ti /.~-ry 1' ~F; ~ County oF~ 4f ~~ .!j% rr t ~> .? .. •$tateof.t.r.a~?>'.; !t - ..la:...~Zip~'~:~•t~!?r:: I. .....,l ..... ............... 'Zoned........ ' ' r I' .......... ... .'TERMS (3-Bb) (a) Purchase Pnce 1. .. , :. ~y ............:...... .................. . ... Dollars which shall be std to the Seller b the Bu er as follows: ~ ' " ' P Y Y, ~ ` G /l G ..... ., . (b) Cash'or check at signing this agreement:::...... ` • ...:.. S ......~r• ••:! ~ ~ ~J•' ~~ "~ • • - .,.... c Cash or check to be aid on or before :....:...::.:'::::..: , (e) Cash or certified check at time of settlement :................... =-~ S ~ 'y ~ `~' u ~ ................:.. S .~~ ri ! , , - ~^ Written a royal of Seller to be on or before: TOTAL S ~. t~ /. ~.: ~.'~. - •°• .° • • • • . . 4 ,u l (g) Settlement to be made on or before ...... y !r'7~/1 l9. i ...,ll' .............. 19X . ~ ....... . (h) Conveyance Crom,Seller will be.by fee simple deed of ~ F.1/~i4,:Cf;g...:... ......... warranty. ...~ (i) Transfer taxes will be paid .:.:.f: ~a:,r~f.'Lt i ..6TT../:U.'Ft'r~'.:G!a.t!~!~:.'!.:~~<~:~!~ ::..:........:... ''' „" (jj Taxes will be apportioned pro-rata on a ....:..b~,j. Z.'a'' ........... ......:..... basis. Rents, water and a;;~,t;:.iL~l: sewer rents, (tenable municipal services; interest on mortgage assumptions, condominium fees and homeowner association fees if any, will be apportioned pro-rata at time of settlement. ' MORTGAGE CONTINGENCY (1.88) This sale is NOT contingent upon any mot~a a financing except as hereinafter provided. ~: j''=`'+ (a) Mortgage terms required by Buyerii"Amount oC mortgage loan S :~:~..~ ~...:•~ .'?... ,Term -?.~~.' ..:..:........... years. TYPe oC mortgage lf'. N..,Y .j ......:.........................:.............................:..................... ""~ "r'"°'=Interest rate::: ;'::...':'°:'.... ~1. i.~J.. Xu~ HOWEVER, BUYER AGREES TO ACCEPT THE 1_NTEREST RATE AS MAY BE COMMITTED BY THE MORTGAGE LENDER, not to exceed a maximum interest rate of .....................~~ . Q % (b) Within ten(10) days of Seller's approval oC this agreemynt, Buyer shall make a completed mo age ap lication to a responsible n ;' ; a mortgage lending institution throrigh.the odice ot. ~ !~f'.....lr.l>>'~Yl~l!~:{...:/~~xt~-?: J,-.~ ....., .............. - "t'"' who for the purposes' otnegotiating for the said mortgage loan, shall be wnsidered the Agent for the Buyer. ' (c). (1) Buyer will, upon receipt of a mortgage commitment, promptly provide a copy to Seller, Agent and/or Sub-agent, if any. r:~ s£3 ~~~ 2 Mort a e commitment date ..:. ~ ~ ~ ~ ' - O B B y9• i•'FL .t L...:. j. S .:....:.. , 19 .~. ~'...... IC a written commitment is not received by the above date, Buyer agrees to extend the commitment date until Seller terminates this agreement in writing. ,~~ ~lu,~r,(3) Should the mortgage commitment: not be valid until the date oC settlement be conditioned upon the sale or settlement of any other ;: ~ ,; r ,property or contain any other condition not specified herein; Seller has the option to terminate this agreement in writing. ;..r , •,I,,,r. In the event Seller terminates this agreement as specified in paragraphs (c) (Z) or (3), or the mortgage commitment is not obtained ;t+"W~'= +"ii.t'`by'the'date of settlement, all deposit monies paid on account shall be returned to the Buyer, subjcrt to the payments required. if any, provided for. in• paragraph ~9(c), 1, 2, and 3. j .~ ''i?(d) Seller hereby agrees'to`permitinspections by authoriied appraisers, reputable certifiers and/or Buyer as may be rcqul the lending institution or insurin ag~nci.~(G~ w~ ~ ~ ~!`~/I Uf s !~•vr- ~f/L yv /~LaPFi¢ ~r rri if~I.?~ ' - $PEC[AL CLAUSES T~~// rvry'~~C„~Fd~L ~SYNG~ AS" P~/Y . ~ ~,eL~~fs~r j~ lr .±....,.. rf i (a) This sale is NOT contin~ni iri any manner upon t~ sale or settlement of any other real estate except as may be hereina[ter ~~w , ~~fj).~,F' ~. t-+~.1 f-° !''~iyt'yiao r f!%1~. S/-7''!- r_$if'/~~ra.~r LvLLL Lu.IT/,! 7 !' ~ !. ~~ili r',i,+a . / -~"~ /) 1 F 7 1'l r'. tr* T ~7.-~ t/ r j .) 1~~1`it7t"-.) ~ /~! I ( ~r-S' !0'T1. ~ / / Lc'' r) ~.r t . ~ !J J t•.:'r~~.~.5~!-;I ,is~l j"i? /~/~: V rtr~. :;Yl,fl; i ~sr~.i:~•. ~ ~si,.•s~,~,F, :yZ. r;~.,r; : ,p r•7 , r ' yl ~y"=~7"v~T'ryT ! ~ !> (r rr? .''.) ! ~ f '' fi" ~ / i v/.s..~ s J ~ .; / j r~ ' + ;:, .,, , 1 ~ - ~ ,, ~. rt r= -- ~rl/--Sf.C:.t-,E'rt. - /'f vtL-~ r3Y f~ _ ~2 ~~~- 7~o sal L.~ ~+ !tea Y/r~ -! a i tct ~~r~~ ,,.- - .rte ., Fr ~~- r~""(/Ert~1:t~ Ire, r1'5:.. p.,,r.....~'r~vlrra~v~c-.G,2r~~+~rL~ v~•i •s/~-~! J- ~C!°}-~'{Jt5 ,v`HZr' Cr>r~~'r~l/~r~/'J7"l,rAsr7 y./l~f~ ~~~Y11~6•~jLi ~~r'1~,,.rr>~ i%`.r~r~t'ri'' ~~ ~~5~ t.~,,!!'j)"7'1:1' ~~'~t. GL !(fl~ClGl~a/l.rd~4 l~l~ :~-r_+7r~/~ii~'~o~,-'~J I ., wrJSl~~fl / iJrZyE~j /'~?'frlA~'i'(.4 ~ ^iNr r"°t r1 t'bf !r'r S r p ,~.MYy~S. "~IFI'Sr r~ r'! r'3"N'r'~a F;~ Wit? >>v~,~ A~t~+~• F_%~l~N~-~*'~ , _i:.rl;;... . 6. NOTICES&ASSESSMENTS(3.56) .i(';','}%;S ;:.'I;g.._._. d:~c:~f@)') is+.i'~) ti1:11:i::;P]::1.. (a) Seller represents as of the approval dateofthisagreement,thatnopublieimprovement,condominiumorhomeowneranocietionassessmentshave . 'beanmadeaga)netthepremiseswhichrcmainunpstdandthairionoticebyanygovemmenlorpubliceuthorityhasbesnservsdupontheSellerar t '~- ~""anyone on the Seller's beheif,.induding notices, relating to yiolation~ of zoning, hou;(ng,.building, safety or fire ordinances.whtch remain uncorrected unless otherwise specified herein. (b) ((required bylaw, Seller shall deliver to Huyer onbr beCott iiettterhent; a iertifieaTioa`frott{'the eppropti~te municipal department or dep9rtindnts disclosing notice of any uncorrceted violation of zoning, housing, building, safety or fire ordinances. (c) Sellerwiliberesponsible(oranynoticeofimprovementsorasscasmentsrecervedpnorbeforethedateoCSellersapprov2loCthisagreemen4unless improvemen s consist of sewer or aster lines not in use. ~ -' ' ' (d) Buyer will be~esponsible for any notice served upon Seller after the approval date ofthia agreement and forlheptiymenl'IhefiSiifter of an ublic improvement,.condominium or homeowntt association assessments.. - - ~ P 7. TITLE AND COSTS (3.85) - •. 1" I .. .- .. ~. I i,stno .. r:~ .r (a) The premises are to be conveyed free and cleat ~t all liens, encumbrances, and eaaemenb, EXCEPTING -HO~V~R, lhe;dollowin~ bzisti~g building restrictions, ordinances, easements oCroeds;.easementsvisible upon the ground, privileges or rights of public service companies; if any;;... otherwise the title to the above described real estate shall be good and marketable or ouch as will be rnsured by a reputable Tnie insurance -°Companyatthereguiairates-~•*i--~-;•:.,~--r, (b) In the event the Seiler is unable to give-a goodtind marketabls'title-drsueh•asesill be insured by a reputable Title Gomp any, subject to aforeaeid, Buyer shall have the option oftakmg such title as the Seller can give without abatement of pnee or of being repaid alPmoniq paid by Buyerto the Seller on account of the ppurchase price and the Seller.will reimburse the Buyec(or any. costs incurredibyrthe Buyewfor thoseitems specified. in paragraph 7(c) items (I), Q), (3), and in paragraph 7(d); and in the latter event there shall be nd furtherliability' or obligation ~on either of the parties heron and this agreement shall become NULL AND VOID and all copies will be rcturngd to Seller's agent Cor cancellation. (c) The Huyyer will pay for the following: _ , 1 ,.., ,. .:;;~i'i .f (1) The premium Cor mechanics lien insurance and/or title search,'or fee for cancellation of same, 1C any.. ~ ' (2) Tfie premiums (or flood~inaurantx and/or fire insurance with extended coverage, insurance binder charges'or cancellation:fee; ifady,~ (3) Appraisal fees and charges paid in advance to mortgagee if any. -~ •; ,tr.. r..,u, (4) Buyers normal settlement coals a,nd accruela. ~ ~ -~ ~ ~ ~ - - ~~ '~ (d) 'A'ny survry or surveys which may be required by the Title Insurance Coteysny'or the'ab~etracLng iitornry', for the preparation'of an"adequate' legal description of the premises (or the correction thereoQ, shall be secured end paid for by the Seller. However,-any survey or surveys desired by the Buyer or required by his/her mortgagee shall be secured and paid for by the Huyer. 8. FIXTURES, TREES, SHRUBBERY, ETC. (1 •BB) All existing plumbing, heating and lighting Gzturee (indludingchendeliera)and systems appurtenant thereto and forming a pan thereof,~and other ppermanent fiztures,~as well as all laundry tuba, T.Y. antennas, masts and rotor systems, together with wall _ , ; , to wall carpeting, screens, storm sash and(or doors,shades, awnings, venetian blinds, couplings, for automatic washers and dryers, etc., radiator covers, cornices, kitchen cabinets, drapery rods, drapery rod hardware, curtain rods, curtain rod hardware,~all trees; shrubbery, plantings now in or on property,' if any, unless specifically excepted in lhie agreement; are included in the sale acid purchase price.' 1 None of the above mentioned items shall be removed by the Seller from the remixaafter.[hedateofthisagrcement.; Any remaining heating and/or:e4pkingfuelsstored onlhepremiaeeettimeofseltiement arc also included under this agreement. Seller herebyy wartanis that he will deliver good title to all o[gthe article's-described in this paragraph, and any - other fixtures or items oCpenonelty specifically scheduled and to be included in thts~sale. ~ ~ ~ ~~ ~ . ... 9. DEPOSIT AND RECOVERY FUND (b-86) Deppoosits or hand monies shall be paid to agent for Seller, who shall retain the same until coneummationor IerminationofthisagreementinconformitgwithallapplicablelawsandrcQulalions. AgentfortheSellecmay,athia/hersoleoption,holdanyuncashed check tendered as deposit or hand monies, pending the ecee ranee of this oRer. - ' - Areal estate recovery fund exists to reimburse persona who Rave aullercd monetary loss.and have obtained an uncollectetile'judgment due to fraud, misrepresentation or deceit in a real estate transaction by a Pennsylvania licensee. For complete details, call 717-.783-3658. 10. POSSESSION AND TENDER (3-66) ~ ' - ~ ~ ~ ~ ~ ~ ~ ~ ?c'ity~~_. (a) Possession is to be delivered h deed, keys and physical possession to e~vacant buildinj; (if any) broom clean, free of debris-at day~and lime of settlement, or by deed and assignment of existing lease(s) al time of settlement if rcmnea .is tenant deco led at_ the si~ning~ of this .• j,, i agreemeril, unlas otherwise specified herein. Buyer will acknowledge existing lease(s) by initialing said lease(s~ at time of signing of this agreement of sale if tenant occupied. (b) Seller will not enter into any new leases, written extension of existing leasey,!~IL'any, ar;additionaL;easep,Sor thaiprCmipes<without expressed written consrnt of the Buyer. (c) Formal tender of an executed deed and purchase money is hereby waived. " ~ • ~ - ~ ~. i. ,~_ pu riy ly. ~ , r~ ,ii rhr'J (e.;, , (d) Buyer reserves the right to make a pn-settlement inapecnon of the aubjectprcmisea t„~~ ,i, lir 1 ~ ru ~ vl i i.r ;; i ! i;r) 11. MAINTENANCE AND RISK OF LASS (3-86) (a) Seller shall maintainthepmperty(includmgallitsmsmrntionedinparegraph #Bherein)sndanypersonalpropettyspecifiCellyschettii(edherein _._. - m its present condition, normal wear and tear excepted. . , ; . • ,;; .,, ~ t: -_ (b) Seller shall bear risk of loss from fire or other casualties until (tine of senlemenL In the event of damage to any property included imthia .sale try fire orothercasualties,notrcpaircdorreplacsdpriortoaettlament,HuyenhaBhavetheoptionofrescindingthisagreementandreceivingall .. .'monies paid on account or of accepting the property in its then condition together with the proceeds of any.. inaunnce recovery obtainable by Seller. Buyer is hereby notified t at he may insure his equitable interest in this property as of [he lime of the acceptancy of this agreement 12, RECORDING (3-85j This agreement shall not be recorded in the Office for the Recording of Deeda~or in any other office orplace of public record and if ' Buyer causes or permits this agreement to be rceorded, Seller may elect to treat such act as a breach of this agreement. 13. ASSIGNMENT (3.86) Thia agreement shell be binding upon [he parties, their respective heirs, personal representatives, Snardiana:end~anccesaors, and to the extent assignable, on the assigns of lhs panics hereto, it being expressly understood, however, that the Huyer shall not transfer or assign this agreement without the written consent of the Seller. ~ ~ ~ ~- •~ _ . 14. DEFAULT-TIME OF THE ESSENCE (1-79) The said time Cor settlement and all other times referred to~Cor the performance otany of the~obligations of this agreement are hereby agreed to be of the essence of Thia agreement Should the.Buyer. 1. (a) Fail to make any adduional payments as specified in paragraph #3, or ~ ~ `~' ~ "' "' "' "'' ' (b) Furnish Calx or incomPPlcte information to the Seller, the Seller s agent, orthc mortgage lender, concerning'the Buyer's•7egal br f naociel status, or fail to cooperate in.tAe processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment, or (c) Violate or fail to fulfill and perform any other terms or conditions oC this agreement, ~ ~ ~ .. > ~ ~ ; ~ .:. .,~i..r,[,~n iu c,~(.r~7 ;. then in such case; all depPosit money and other sums paid by [he.Buyer on nccount of the pirtChace price, whether required by this,,agrament or no; may be retained by the Seller. (1) On account of the purchase, or „ ....., ,~ L:._.,r., .,. ,,,, ,~:;~ ..•i+ t . :,i,d ,'Y.: •d =t 17i: ._ i. i d.wlt s .; (2) As monies to be applied to the Seliera damages, or _--,,;( .1r-.;,i.," err ..<.y, ~±t )r :•r,.)ur: ~'tai19..'. io avui;+;i~, ;,i:,l nirea :; ;Ji . ~' ~~ (3) As liquidated damages for such breach, as the Seller may elect, and in [he event that the Seger elects W retain the monies as 1i~ aidaledidamages';id'actordanCd~'with ~paPagreph # 14(3), the Seller shall he released from all liability or obligations and this agreement shall be NULL AND VOID and ell copies will be returned to the Seller's agrnl for cancellation. " - ~ - 15. AGENT(S~ (3-86)`lt i~'ezprca'sly•undenlood'Snd agreed belween'the'piriiee'Thai the named Agebt,'Biokei;`an'd.any Snb'Ageiit;'Broker~a6d their i salespeop e, emptoyeesro rears and or partners, are Agent(c) for the Seller, not the Buye[, however, the Agent(s). may perform services for the Buyer in connection wi{h financing, inaurana and document preparation, , , . ,~ ;,,,. rnn ,. ;,q; -. t:, ~ ~ ~ ,„ ~ ~ , ,~ ~ •;.;iu • rh ~,., /6. REPRESENTATIONS (3-85) It is understood that Buyer has inspected the property, or hereiip~ waiveii itietigh(io do so end has agreed io purefiase it as a' ~~• result of such inspection and not bequse of or in reliance upon any rcpresrntauan.m'ade by the Seller or any other officer, partner or employed of Seller, ~ ~ or by thq A any Sub Agent, if any, of the rSeller, {heir sa(eapeople serf empl0yeec, pincers.and Qr partners..; ,,.; ,,;,, , ~ , The Buyer has agreed to purchase it~in its present condition unless otherwise apecifisd herein. ~ It is further`Rnderilood~that this ~sgreement contatna I!srs hhe whole agreement between the Seller and the Buyer and there are no other terms,.obligadons, covenants: repreaepta(iotis; statements or cond itions,oral . ,,.r•, or othefwise of any kind.Whalittteyet,ronce(pipQ fhiqule. ; FurthermoreLthic ~gr4et{!ent:h;ll.r}otjie altgred, amended, ghanggd or modified except in ,, } sltiing,eiecuted by the parties _ . t0.i t r L Lna5r.1' J rfgn~~nq' rhl L~~~an11 ~(nn Ir WITNESS A$Y'BCIYER t~~•s~Yu,3_t~o\tin~s rt9ttm'~ri ~ a~ ptu'}tigr:)HUY)±Rtu, r t .rn r t rrr i axn' v r~~ieS~r ioka~ (L.(SEAL) TO BUYER ~ :..~~r~ .....f~...,t..i~ ~ ,. ..... ~u~l~?k;Bl7YER.,;~~~ , ..t zYl~=,r ,~ ,(ni ~nil•{..).,.;(SEAL) 'WITN~SS'1iS."" ' ~ i,J I:1' lli~ ~TO BI,IYER;ildhl5?•! .,Gf.~~~.~.....7-,~,. ~ ~~~. BUY)=R .+ >, ,ate a a r (S$AL) " ~ i, w tEli r:~lni ', n'r,r rrnc;~fr>rTn fitrrt~( (tr APPROVAL BY SELLER - ~. ~ ...- Seller hereb a roves the above contract lhu .~. , :...' ~ ~ .._.. - .; -A.D 19 ~tpp Y PP ......... ~~. ~~ day oL.... ; . ~+t!n: 0,..~., ~1 ~ t WITNESS AS ~~".Q ~ ~ - ~ - 4 TO SELLER .............. t. ....~ SELLER:. ~~?. ... y'i, '~, ':. ........(SEAL) WITNESS AS ....................... ~.... TO SELLER ... ....~ ........... ...............:............. SELLER...(,(„ ....•~...,,~~..: ~~- `~ .(SEAL) AGENT BY:...`:.-~:44^.~J~:.~.... .. .. ... • . ............ SELLER..................,. ; .,.................~..,..,..,;~...~(SEAL) TO :....................................................... (Agent) Dete.,.... .....,. .L. .. ,.19 i -...... In conjunction with the purchase of the premius described in this agreement'of sale attached hereto, l/Wet+emby authonztyorir~firm to perform the services as indicated below by my/our initials. - A. Order Title insurance in any reputable title insurance company . . ............:.. ...:.... ~: ~.,.' ~ ; :~ . , ~-,.c :~.- , ,,,, „; _ ~,, ~. QNITIALS) H. Order insurance in the amount of S ................... ^ Homeowners ^ Fire & Extended Coverages, O~~F'lood q.;r .~; ;', ;: (INITIALS) ~ ..:.......(INITIALS) Exhibit B • BAR73AItA A- KYNETt, . SN T1iE COU1tT Ok' CC~1N1pN FLEAS UL' PlAintif ~ CUNil31~RLAPd17 CpUNTY, PL;TdI3EYLVA232A v, cnrzL AcTZaN ~- Et~3I~1`Y JQIiId 5~1. EERSFi1vY, Elz- r N4. 29 ES2Ux7'Y 19743 L7ef enaant S TId 11L: P'IIdDxNG6 OF 1~'AGT and cONCLUSioDts Qr LATn~ BEP'p171:_..._..CdUIGLEY,. p. J. I. lpTTdDIPiGS C}P' FACT Th® real aettate involv~3 „in dais matter agnsists of a lot witYa a mobile hems execte~ or placed thereon. Said lqt being described in tho Cozaplaint. tariginally sa3r1 lot was awned by John Y~i. Hershey, Sr. , then defendant in t~h~,s matter, but was conveyed to ane B4rs. Smith. Mrs. 5n~ith ].eased tlia molail® bane and real e€tata to other 17ersons until her death. The mobile hems at all times material was acrvecl k;y water and sewer facilities located in whole- or in part on other pr op Erty of the defendant. Upon the cleatla of Mrs. with, the defeixiant puraha.svi t11e trailex and land from the Smith estate, recmiving a deed for the real estate in April of 1977. During the period beginning in late January ar early February 1977 and play 26, 1977, the: plraintiff, Barbara lCyner atxl her husYaazxl rrradley Kync~rxx entered into discussions with the c~cEendant concerning the purehas~ by the Ryners of the mobile home and real estate. At some time withl,n the aSoreaairl time per~.ad,an oral arsre~tent was entered into between the parties wharetby the deferxiant would sell and f-1r. and Mz'e. lcyner tvouJli purchase the mobile hcmo and the real ostate ut~on which said. home was located fora total canside;ration of $3,75Q. Mr, and Mrs. 1~yner recei:~ec7 the title to the mobile hems on or about Play 26 r 1975 . -1~ . 29. Equity is ~ a At the time that Mr. arld hrs. Kyner corrauenc~sd their c~cupancy of th© mgbila bane; said resicienae was continued to be served by water aru3 sewer as previously dgsaribed. A•t all times during the stores of occupancy pt the mabile hone by Nlr, and k1rs. Kyner anct subsequently by Mrs. Y,yner alone, the defendant was anci is an imm©c~iate neigiaber and in a pasitian to have frequent contact with Mr. aixi D9rc. P.yner and furtlxex wxa in a position to observe tkie auL•dgor activities of Mr. dixt ~'ira. Y.yner. During the period of theiL occupancy Mr. anti Mrs. Rynex caused certain improvements to be eregter3 ax rlacec3 "upon the pxapexty inoluding, among other thing R, a patio anc~ a sl~cd, saki lattex two itmns costing from between $1,115 and Y1,340. The defendant at no time entered any ob~~action to these activities. l4r. and Mrs. Y~yner were presented with tkie real estate tax bills for the year 1977 ~ ask saws were paid }ay tars. Kyner. The mobile hamcr and real ,estate were ~nxrckrased by blr. a.ncl P-7rs. Kyner Erczn furs obtained from th® People's Natignal I3a;nk of ~Y:ij~pon.~}~srg through a lean with the security for aaicl loan being limitExl to the mobile ham, and to they personal guarantee of the defendant. II. COAICLUSI (7h7S OP LATE An cxral agreestent feat the sale of th® mobile home and real agtate tog•ethrr with appropriate eaaements for the continue:l service of the real estate by water argil sewer facilities was enteroci into key aril betwr~era thra F{yners and tYae defen~clant. AlthougY~ .~axcl ac3recmenL- was never reduced tp Writing, the agr©eanent was nevsrth4less perfarmExl to such an extent that the purchasers took pogseesion of the real estate and. ::ha mobile home. The pexf armance of the agresnent is o£ ~.. a~ equity ls7a sufficient degree and of sufficient farce and effecttp render inappropriative and irrelevant. tYie affirmative defense of Statute of Zrraud s in this a ass. oRnr~ c~i~ CtAl~iT AND N(,~V, Saptembcx 27 , 197 8, at 1I:46 a.m. , of ter h©ariny , it is ordered and dxxeot®d that the defdndent, Sohn r2. Hershey, Sr., excxvute and aok,nowledge a ~QOd and sufficient deed of cgnveyance eon~i3.ning prevision of at least spe:~ia1 warranty and c:overiny the sub~~a©t traoia, that_~a dm],iver saki demcl to Barbara Klmer and flradley Kyner as grantees az~1 to pr gv3do in said deed a prcvi.sion far the inclusion of water ar~d sewer by way of easements effective to the granL-ees, their heirs and assigns. Dof©ndant iii further ordered and directed to immediately restate sewer and water Services to the premises. It is further o~lere~l ant? dixc~gted that the oonsiciasration to be rec3.tEri in said deed feet the purpose of realty transfer taxes be ~l,ppp, this figure being the fair mar>~ot value of the real estate as determined by this court fran the testimony presented. This axder shall be in the fr.~m and have the effect of a L~ecro© Nisi. The parties shall be .given a period of twenty(20) days from this elate within which tq f ~.l® ~coeptiane. At the time of the filing of exceptions the excepting party shall pravida a brief in support of his. Axceptance and ~aerve a copy on the other party., The party responding shall Have A period of fifteen(15) days to provide iL-s autYsorities in tkte. farm pf a brief aixl serve' a copy of samo on the other party. If no ~exce~:tions are filed within the aforesaid twenty I20~ day~.:~ p®rio3 this Wider shall beccxrte a f final order. In the went -3 -_. 29 F'quity 1978 exce~t5.ons aze filed same sha11 be disposed of by this court without oral argument unless the court directs otherwise in its own motion or at the request of gth~x counsel. By the Court, (sit{ei~th I3. Quayley Keith 8. Quigley. P.J. 41st Judicial District SpeC.i~11y Presiding Willimn dark, Esc~uiro~!. For Plaintiff Sally winder, Esquire For Def send ant :cfd -4- JOHN M. HERSHEY, SR., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA °' N0. 2552 CIVIL 1978 BARBARA A. KYNER, Defendant ACTION IN EJECTMENT BARBARA A. KYNER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v' CIVIL ACTION - EQUITY JOHN M. HERSHEY, SR., Defendant N0. 29 EQUITY 1978 O R D E R AND NOW, May 10, 1979, for the reasons set forth in the within Opinion, the verdicts of this Court in both cases are affirmed and the exceptions of John M. Hershey, Sr., are dismissed. BY THE COURT, ...,.. ~.. ... -.~+..bvi,u i , r . a . 41st Judicial District Specially Presiding ,. JOHN M. HERSHEY, SR., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v N0. 2552 CIVIL TERM 1978 BARBARA A. KYNER, ACTION IN EJECTMENT Defendant BARBARA A. KYNER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - EQUITY JOHN M. HERSHEY, SR., N0. 29 EQUITY 1978 Defendant OPINION The above captioned actions in ejectment and in equity for specific performance arise from an oral contract for the sale of a trailer and the real estate upon which it is situated. F'or the purposes of these actions the rele- ',want parties to the contract are John Hershey and Barbara Kyner. Mrs. Kyner's ('husband, Bradley, was also involved iri the negotiations but has not been made a party to either action. The trial court heard the ejectment action first I and, upon appropriate motion, incorporated that testimony into the equity action. The court found for Barbara Kyner, defendant in ejectment and plaintiff in equity (referred to as defendant hereafter), and ordered John Hershey (referred to as plaintiff hereafter) to execute and acknowledge a good and sufficient deed containing at least a special warranty to the described real estate to Barbara and Bradley Kyner, their heirs and assigns, and further to provide for the inclusion of water and sewer rights by way of easements. Exceptions have been taken to the court's findings that the oral contract II included the real estate; that easements for sewer and water services were created; that the evidence was sufficient to take the oral contract out of statute of frauds; and that the improvements made to the property could not be compensated for in damages and thus justified specific performance.- Plaintiff has also excepted to the court's ruling that Bradley Kyner, husband of the defendant, was incompetent to testify against the defendant under 42 Pa. C.S.A. § 5924. The evidence presented in this case is sufficient to find that the oral agreement between the parties included the real estate upon which the trailer was situated. Prior to the sale to the defendant, the trailer and real estate had been advertised for sale at approximately $3",500.00. The plaintiff himself had just purchased the trailer and lot for $3,300.00. The purchase price between plaintiff and defendant was established to be $3,750.00. The fair market value of the trailer and real estate was shown to be $3,500.00. After taking possession of the trailer and real estate, the defendant performed the duties and exercised the rights of full ownership by paying the taxes on the property and making several valuable improvements to the lot and trailer. The fact that these actions were performed without complaint from the plaintiff who lived next door is consistent with defendant's claim to ownership of the trailer and real estate. The testimony of the defendant, the entire circum- stances surrounding the sale, and the actions of both parties indicate that the oral contract included the land as well as the trailer. However, the mere existence of an oral contract for the sale of land, without more, is insufficient to justify the award of specific performance. Having found that the oral contract included the real estate, the court must then determine if sufficient evidence was presented to take the contract out of the statute of frauds. The general requirements necessary to take a parol contract for the sale of real estate out of the statute of frauds are: (1) the terms of the contract must be shown by complete satisfactory and indubitable proof; (2) the boundaries and quantity must be indicated; (3) the amount of consideration must be fixed; (4) possession must be taken pursuant to the con- tract; (5) the change of possession must be notorious, exclusive, continuous and maintained; (6) the vendee's performance must be to such an extent as to make compensation in damages or rescission inequitable. Klingensmith v Kling- ensmith,375 Pa. 178, 100A:•2d 76 (1953); Hart et. al. v Carroll, 85 Pa. 508 (187 The plaintiff can not seriously challenge the defendant's fulfillment of the requirements related to amount of consideration, the taking of possession - 2- pursuant to the contract, and the notorious, exclusive, continuous, and main- tained quality of that possession. The record is replete with references to the purchase price, the approximate times of the contrac[ and the taking of possession, and the quality of defendanta.s possession. The record itself in- dicates that those requirements have been met. However, plaintiffh exceptions related to the specific terms of the contract, the boundaries and quantity of land, and the degree of defendant's performance are more substantial and will be discussed individually. Plaintiff specifically excepts to the court's finding that the conveyance of the land pursuant to the oral contract included easements for water 'and sewer service to the trailer. Proof of the terms of an oral contract for the sale of land can be provided not only by the parties to the agreement, but also by the acts and declarations of the parties together, by the circum- stances connected with the transaction, or by the acts and declarations of the grantor alone. McGibbony v Burmaster,53 Pa. 332, (1866). All parties to this controversy agree that there was no specific agreement made relating to easements for water or sewer service. However, easements by implication can arise despite the absence of a specific agreement to that effect. Vander- werff v Consumer Gas. Co., 166 Pa. Super. 358, 71A•:2d 809 (1950). The only requirements necessary to give rise to an easement by implication are: (1) unity of title followed by separation of title; (2) indication of an intent that the easement be permanent; and (3) proof that the easement is necessary to the beneficial enjoyment of the land. Becker v Rittenhouse,297 Pa. 317, ~I 147 A 51 (1921); Hoover v Frickanisce, 169 Pa. Super. 443, 82 A:2d. 570 (1951 When these requirements are-met the right to the continued use of the easement arises by implication of law. Hoover v Frickanisce, supra. The plaintiff in this case owned both lots in question prior to the sale to defendant. This ownership and sale provides the unity and separation of title requirement. The fact that plaintiff previously sold the lot in question to a Mrs. Smith in 1973 and provided water and sewer service to her -3- trailer on the lot under a specific contract is relevant if only to show plain- tiff's continuous supplying of water and sewer service to the lot. When plain- tiff later repurchased the lot with the trailer on it from N,rs. Smith's estate, all rights merged as a result of plaintiff's common ownership of both proper.tie However, for a period of at least six years prior to the sale to defendant, plaintiff provided water and sewer rights to the lot in question. After the sale to the defendant, plaintiff continued to provide such service until the defendant and her husband separated approximately one year later. All of these facts indicate that at the time of the sale, and for some time afterward, the provision for water and sewer service to the lot was so continued and so manifest as to indicate an intent that it be permanent. The intent requirement for an easement by implication is measured by the implied or manifest acts of the parties, and not by some undisclosed understanding. Heffley v. Lohr 149 Pa.Super. 586, 27 A.2d 275 (1942). Finally, the water and sewer service must be deemed to be essential to the beneficial use of the property in question. The trailer and lot were pur- chased as a residence for a family, including two young children. Evidence was presented to show that it would be extremely difficult if not impossible to construct a sewer system on the property itself because of the small area available. Though implied easements have traditionally been applied to right- of-ways, it is not unusual to have them applied to water systems as well. Heffley v Lohr, supra.; Phillips v. Smelka, 76 D&C 287, 34 Erie 117 (1951). Plaintiff's contention that there was insufficient evidence of the boun- daries and quantity of land must also be rejected. The legal description of the land was set forth in plaintiff's complaint in ejectment. This description was stipulated by counsel into the record and incorporated into the equity action. Furthermore, several references to the 50' x 100' lot were made in the testimony of defendant Hershey, (N.T. 41, 46) and in that of his nephew who appraised the lot (N.T. 76). This is ample evidence for the court to find the actual boundaries and quantity of land covered by the oral agreement. To -4- a• ,. require more under .the circumstances of this case would place an impossible burden upon the defendant. Though applicable cases on'.this issue have at times required proof by means of unexecuted or undelivered deeds, Hart v Carroll, supra; McGibbonv v. Burmaster, supra; it must be recognized that at the time of the sale and for some months thereafter, the plaintiff himself had no deed to the land since he had just purchased it from Mrs. Smith. Defendant's performance under the contract involves the addition of severa: valuable improvements including a new patio valued at $300.00, a shed valued at $1,000.00, and improvements to the grade of the driveway. In addition, the plumbing and furnishings of the trailer have been replaced or repaired. Though the monetary value of the supplies needed for these improvements may be computed, the fact remains that much of the work was done by the defendant, her husband and friends. The net result of these improvements was to create a comfortable home for the defendant and her family. To require defendant to now forsake the land upon which her residence is situated and upon which valuable improvements have been made, would result in losses which would be impossible to determine in an action at law. In such a situation, when a vendee takes possession pursuant to a contract and, makes improvements which are not readily compensable in damages, or other equitable considerations make it impossible to do justice, then specific performance is the only appropriate remedy. Haskell v. Heathcote, 363 Pa. 184, 69 A.2d 71 (1949). While we recognize that the court's ruling precluding the testimony of Bradley Kyner, defendant's husband, probably precluded the introduction of evidence relevant to the issues at hand, we believe the ruling to have been proper. Mr. Kyner, in the view of the court, was statutorily incompetent to testify. We reject out of hand the plaintiff's contention that the defendant's failure to call her husband should result in the court concluding that if he had been called his testimony would have been unfavorable to the defendant on the theory that one who fails to call a witness who has knowledge on the subject at trial and is within the party's exclusive control can justify an inference that what the uncalled witness would say would be unfavorable to the party who failed to call him. We think that to permit such an inference to be drawn would be to, in effect, substitute that inference for testimony which is -5- ,. deemed inadmissible because of the incompetency of the witness. We do not believe any circumstances in this case compel a modification of along standing rule in order to achieve justice. If we were to be permitted to infer anything concerning what Mr. Kyner might have said, we are of the opinion that we could just as easily and logically infer that his testimony would not be worthy of belief because of his present domestic problem with the defendant and his close relationship to the plaintiff. While we .recognize that the plaintiff and defendant, now antagonists, once apparently friends, will remain in close proximity, possibly to the mutual displeasure of both, we are not disposed to disturb the Decree and Order' announced and entered at trial. KEITH B. QUIGLEY, P.J. 41st Judicial District Specially Presiding May 10, 1979 ,, Exhibit C 1IbaT-WVnnl, IIM, ahem terra A•t el IhQ. Hind. ah•n. Il.nr, 11.11, Ina., IMI•ny P•. qq~~ .+ MADE THE 1 ~Ll. + day of .~, t f"fdr rC4.J of ouY Lord one thousand ne hundred eevent In the year y-nine (1979) BETWEEN JOHN M. HERSHEY, SR., of R. D. 02, Shippeneburg, Cumberland County, Pennsylvania, hereinafter called the' 6 Grantor andBRADLEY S. KYN$R, of Southampton Townehip,~Cumbeiland. County, ..Pennsylvania, and BARBARA-.A. KYNER, hie wife, of R. D. B 2, '-Shlppeneburg, Pennaylvania,,'hereinaftet called the' i . .. 1 GranleA WITNESSETH, That in conlideralion of ONE THOUSAND ($1,000.00)-----------~-______ __________-___~_____________ Dollars, in hand poid, the receipt whereol it hereby acknowledged, the .aid grantor do es her 6 ront and convey to the .aid grantees , e y q their heirs and assigns, ALL that certain property situate. in Southampton Township, Cumberland County, .Pennsylvania, more fully bounded and described as ~followa: ... ~ BEGINNING at an iron pin on the Southerly side of a proposed street, said point . ~ of beginning being a distance of 184.49 feet on a course of North 49 degrees 37 minutes O1 seconds Eae[ along the Southerly side of the said proposed street from the center of Township Road No. 316; thence along the Southerly side of . the said proposed street North 49 degrees 37 minutes Olseconds East a distance of 50 feet to a point et other land of John M. Hershey; thence in a Southeasterly direction a distance of 100 fee[ to a point at land to be conveyed to Franklin M. Hershey; thence along land to be conveyed [o Franklin H. Hershey, South 49 degrees - ~ .36 minutes 43 seconds west a distance of 50 feet to a point; thence along other . land of John M. Hershey in a Northwesterly direction a distance of 100 feet to ' e point, Che place of BEGINNING. Pursuant to survey of Arrowood, Inc., R. S., dated December 7, 1971. i BEING the same premises which Franklin M. Hershey, Executor of the Estate ofRuth B. Smith, granted and conveyed to John M. Hershey, Sr., Grantor herein by deed dated April 1, 1977, recorded in Che Office of the Recorder of Deeds for Cumberland County . a[ Deed Book "C", Volume 27, a[ Page 789. - An easement is also granted herein to the Grantees,. .their heirs and aeeigna,~for water and sewer connectiana `which easementahall~be fonthe uaeof the water and sewer, and the connectlonaCheretoaeYhey. arelocatedon the date of this; deed. aa ~c , G ' - - - - I ' ~ c: _' . ~ /' / S. ~ -~n~ ~ s 6~ rf. Sehoe6 Dist. Cemb. Ce., Pi-, ~ rr ,, ' ~~ I7L Real Erl•t• Tw n,(•r Tst o.l. 1.4.:Z7:.'~ Aml. /.P.:°~ COAAMONFVf: A!iH OF PEhLJSYI\'6,F:U~ - ~ ~ ~¢f~ ~( v,~ v DEC9R(MFNI OF i;E VENUEr~ - C 6. Cer f)i,l. Cel. Aal, '~}y ~' oiAN3FER ~~~~ 1 . - ^' lAX DCfI9'79 Syy+} Ii I O. O (~I._ - - AND Ihe. said grantor hereby cavenanta. ahd sprees that they and each of them will wavant specially the property hereby convoyed. eooK~ 28 rnce 685. IN WITNESS WHEREOF, said prenror he the day and year Rnt a ereunlo of hie above written. hand and seal FieneJ, &relek eei ~elinrrrk _ ~(\y~) ~ - C~~//~ i tpe y ,~ e( John M~H~ ~ p .~ S=`-~-~ .~ ^n i ((// v Slate of PENNSYLVANIA -County of CUMBERLAND ss• On this, the /~f'~- ~ I,-~. a Notety public day of ~~` rx 4II~-1v in and for said County a d Stets ~ Iv 79 . before me, the undersigned oRcer, Personally appeared Tohn H. Hershey, Br, known to me (or satis(ocbrily Proven) to be the person whose name is ~ - ~, `1,,i,,,tA ~'f 1i in instrument, and acknowledged Ihof he `,''.~rry. Y~!"' IN WITNESS WHEREOF, I hereunto'set my hand and ofrc'ol seals for the ~ ~ubar(rhbey~~.rhe,:wirh• ~~~((~~~~(( //,~ `\ / ~pu'rpOse1t.athenin ~orepiped.: (0.t. tx ~~A C, \1~'~,;' . n ~_..___.__ _. \IfI - -'~ h'rt S. C~ Ile of ORkervYi~- CerliNe, CumMrlend [o. Py M~ ~ " the within named prenlee is do BereDy FrZh Bhi the preciaNNLNlpipiphieplyydyggEppp„Bpfpce addreu of ~~y/L~~-j~, ppenaburg, Pennsylvania 17257 ~ O ' Attorney tor~~,_LI"a<_.~_C.G9 ._~_~-... "~'~ * w W ~ W O X C'l W ~ ~ ~ H ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ ti ~~ COMMONWEAL OF PENNSYLVANIA County of ~ - -_ ~ u. _ `'~\ ----__ ~__ 1 ~.i^ RECORDED on this _ t7 ~'// ~-_ day of __~}-=Le A. D, 19.L~, in the Recorder i o~q 0 (~~/ C of the said Counh, in Dead Book - ~ Vol.._.~____ Pope --~ .. Given under my hand and the seal of the said ~_ tcq-the data boreswriuen. sober 2g rncE 686 ~~---~~~~ Recorder. Exhibit D Mai ry Mill~,~ln~ab, I~n~i, -~~, roan-Aet I~Ott-Deubl~ tMrt ~~Jl~ ~CCb, MADE TXE /Y ~~ of our Lord one lhoueand nine hundred ,.u~ day of ,~~~ irw~ in the year BETWEEN BRADLEY S. KYNER and BARBARA A: KYNER, husband and wife of Southampton Township, Cumberland Counr_y, Pennsylvania, hereinafter called Grantors , and BARBARA A. KYNER of Southampton Township, Cumberland County, Pennsylvania, hereinafter called Cmntee WITNESSETX, tAat in aoneideration of One end 00/ 100 I S 1.001-------------- ---------------------------------- in hand paid, the reeeip! whereof 4 hereby aoJerwwkdyed, the said grantor ;r do Aerr.6~{~~ and oonvsy to the said prnntes , his heirs end assigns v pesos ALL that certain property situate in Southampton Township, Cumberland County, Pennsylvania, more fully bounded and described as follows: BEGINNING at an iron pin on tho Southerly side of a proposed s*_rer.r_, said point of beginning being a distance of 184.49 feet on a cnur.sc of. Nnrrh 49 de..yrees 37 minutes Ol sr•cnnds Last along r_hn, Southerly aide of the said proposed street from h_hn r-enter of Townuhip 11nad Nn. 3161 thenr..e, o]~rn) thn Southerly irldr~ of thn uaid [,rnpn,y,~J nlre~•t North 49 degrees 37 minutes U1 seconds East a diatancr• of 50 for,•h, to a point at other land nf. ,]oho M. Hersheyi r_hcnco in a Southc•astorly direction a distance of 100 feet to a point at land *_o be conveyed to Franklin M. Hersheyi thence along land to br conveyed *_o Franklin M. Hershey, South 49 degrees 36 minutes 43 seconds west a distanco of. 50 feet to a points thence along nt_her land of Jnhn M. 1{ershcy in a Northwestly direction a distance of. 100 f.ee,t to a point, the place of. BEG.TNNING. Pursuant to survey of Arrowood, Inc., R,S., dated December 7, 1971. BRING the same premises which John M. Hershey, granted and conveyed unto Bradley 5. Kyner and Barbara A. Kyncr, husband and wife, Grantors herein, by deed dated Septr_mbez 14, 1979, recorded in the Offi~~u of the Recorder of Deeds for Cumberland County at Deed Book "S", Vol. 27, at Page'789. THIS TRANSACTION is between husband and wife and, as such, is c•xempt_ from Realr_y Transfer Taxes. m Y.. :~'~ ' _ iii [)F I G.~ .~ . ~ _ ' C / -C7 " ~C ~t ' ~ ~~~ ..~ I i „~ . ,, ~~ w __~ rV ~~, dooK~/31 pct 346 ~, And the said praetor s hereby oovenan2 and aprce that they wiU warsant generally the property hereby conveyed. !N WITNESS WHEREOF, raid grantors Aa vehertunto eet their hand s and seals the day and year h»t above written. fiJancD, 8ealeb anb 7Dellbereb -'~Q~~~t"'~~-•'~-••••~u • • - ^a•L in the .~reac eat ~ ~~:~_~.....w..«...._ .:.~ ».._.«.....»............«..»..._.._.«.~...._..........»...«... e~aL i~ ...._...........» ..................«........«........ ._.«........ ...........«...........«......«.«_........»«..~......«................... eD.4 State of Pennsylvania County of Cumberland on thin, the /t>' y~ day of the undersigned odiear, personally appeared et. ~rLUQ,'l. ij , ID ~~ , beJora me, Br/adley S({. Kyner knoum to me (or aatia/aetorily proven) to 6e the Parton whose name is tubamtibed to the within instrument, and acknowledged that he eseeuted came Jor the purposce thrrsin contained. IN WITNESS WHEREOF, 1 hereunto set my hand and oQieial teal. ' Use M. Os6be, MOTARrTPWL~ der' • ~.''~ StateoJ Pennsylvania tUpoerremp'i. ~6i1in°Oe'~> •O~:` sa. W oonenWbn em^ee AwWr rs.~,mv9,~•...J'.~•.`~~ County of Cumberlan O ':`J .d .•• An this. the / " " ' '" ' "",., ~""~' •~~-- day of rru.~.w~Jf-~. , 1~(p , beYore me, the undersigned officer, personally appeared Barbara A. Kyner '^'~ ~~, ,d'~5'Y(l.,l.~,.,, .a known to me (or tatiafactority proven) to be the person whose name is n~,•'t+j~j4?Rrjb~r~~idllis within instrument, osut acknowtedped thae l~,M~yC. emeeuted cams £or r~pys~(,tk~r?in contained. ••~ ~ ~ ; ~ ''~6" a •~ :.:: . !N WITNESS WHEREOF, I hersu eet m hand a+Sd o8iciai seat, ~ wears rcrr, rire;y r~•L•Va,~~%.y ll'=,„ ........ µY Comminlon Exprrat Auau11>Yb111/t0glcer. I do hereby oerNJy that LM precise reatdcnoa and complete post oAloe addresr of the within named prnntee 4 2 • D • ~' 6 l Qo x 6 y ' ~cLr.,a..7 rc~~ isa$6 Attorney for ._.V.C.:R.rL~K.C.~.....:.._.»....«._.._ 0 JiooK V 3~, PACF 347 Exhibit E Wluslers Well llrilhng lnc. ' 3 6C~-1 Green Springs Road Newville, Pa 17241 phone: (717) 776-6211 Fax: (717)776-9441 Bill To RUPUS WARD 8 THOMPSON CREEK DR SHIPPENSBURG, PA 17257 _ _ ,_ - ,; '~~ ~~o - ' .Invoice Date Invoice # 11/1/2007 7228 P.O. No. Ship Project Due Date Terms 11/1/2007 11/16/2007 Net 15 Quantity Item Code Description Price Each Amount 248 DR1100 DR 6" DRILLING LIMESTONE 8.00 1,984.00 168 DR6000-PE DR 6 5/8" STEEL CASING PLAIN 1 L50 1,932.00 1 DR6251 DR 6 1/4" ID DRIVE SHOE ROTARY 75.00 75.00 1 DR6200 DR 6" LOCKING WELL CAP 55.10 55.10 1.5 DR-DEV DR RIG DEV TIME 200.00 300.00 X-DIC PAYMENT -CHECK #1389 -4,000.00 -4,000.00 ~~ ~ ~~~ ~~ ~ \0 ~~ ~~ ~~~~ CUSTOMER Thank you for your buisness _ ~ Tota I X346.1 ~ Whislers Well llrllhng lnc. 3~6-1 Green Springs Road Newville, Pa 17241 Fhone: (717) 776-6211 Fax: (717) 776-9441 Bill To RUPUS WARD 8 THOMPSON CREEK DR SHIPPENSBURG, PA 17257 ~q ~o - ~ .invoice Date Invoice # 11/15/2007 7247 P.O. No. Ship Project Due Date Terms 11/15/2007 11/30/2007 Net 15 Quantity Item Code Description Price Each Amount 1 PU2801-BP PU2 3/4 HP lOGPM 230V BERKELEY PUMP 686.66 b8b.66 220 PI10309 PI 1" AQUA-JET PIPE 160# 0.66 145.20 225 WI12-2110 WI 12-2 FLAT W/GROUND 0.78 175.50 3 BR125210 BR 1 1/4" MIP X 1" INSERT 11.00 33.00 1 PL575 PL TORQUE ARRESTOR 11.66 11.66 2 BR10435 BR 1" MIP X 1"INSERT 10.08 20.16 1 BR125420 BR 1 1/4" INSERT COUPLING 13.20 13.20 1 TA400 TA IN-WELL PRESSURE TANK 916.80 916.80 1 TA401 TA 1N-WELL TANK FITTING PACKAGE 116.00 116.00 2 WI3100 WI SPLICE KIT (CLEAR) 3.76 7.52 2 WI7560 WI BLACK ELECT TAPE 1.58 3.16 1 VA75110 VA 3/4" BALL VALVE THREAD 11.98 11.98 1 BR75130 BR 3/4" TEE INSERT 10.00 10.00 3 BR75160 BR 3/4" MIP X 3!4" INSERT 5.44 16.32 1 BR75170 BR 3/4" MIP X 1" INSERT 3.86 3.86 2 C05005-1 CO 1/2" C X 3/4" FIP 6.24 12.48 17 PL540 PL 3/4"X1 ll2" CLAMP 16SS 1.36 23.12 8 DR2000 DR LABOR 65.00 520.00 ~ `~ ~\ ~~\~~ \ ~` ~ \ CUSTOMER Thank you for your buisness Totaf $2,726.62 ~i: ~~~ ~ ~~ ~ ~~. ~i ~~~~~~ 1" ,,~ BARBARA KYNER WARD, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. No. 09-7696 CIVIL r~ • c N °~ :, VERA RICE, RODNEY E. RICE . ~.~ i~'? and SANDRA J. RICE : =: :.~. ~.rz'''' Defendants '`~ ui 'j~ - . PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER ::~~ cam., u, ~ en c; ; ~ AND NOW comes the Plaintiff, Bazbaza Kyner Wazd, by and through her attorney, Jerry A. Weigle, Esquire, and Weigle & Associates, P.C., and responds to Defendants' New Matter as follows: NEW MATTER 30. No answer required. 31. Admitted. 32. Admitted. 33. Admitted. By way of further answer, both orders of Court filed in the equity action referred to were properly filed in the equity docket maintained by the Cumberland County prothonotary. 34. Admitted. 35. Denied as stated. Obviously the water and sewer lines already established which were the subject of the equity action did not move. At all times relevant hereto, Plaintiff's property was to be benefited from the water and sewer line established by John M. Hershey. WEIGLE & ASSOCIATES, P.C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-7 3 9 7 36. Admitted in part and denied in part. It is admitted that the conveyance of the property from John M. Hershey, Sr. to Robert J. Pringle, Jr. and Alice L. Pringle was dated July 12, 1979. It is denied that the Pringles were not made awaze at the time of purchase. A Decree Nisi was filed on September 27, 1978 and exceptions were filed by John M. Hershey, Sr. A final Order of Court dismissing the exceptions of John M. Hershey, Sr., and the verdicts of the Court were affirmed on May 10, 1979. The conveyance of the property to the Pringles occurred two months following the final Order which is of record in Cumberland County, Pennsylvania. 37. Defendants' averments in paragraph 37 aze a conclusion of law to which no response is required. By way of further answer, Defendants and their predecessors in title have been aware of the existence of the water and sewer easements since 1979. 38. Admitted in part and denied in part. It is admitted that Plaintiffs deed does not contain any maintenance agreement. It is denied that it is inconceivable that the Court would require the land owner to maintain the utility in question and strict proof to the contrary is demanded at the trial if at all relevant to this proceeding. 39. Admitted in part and denied in part. It is admitted that Plaintiffhad a legal duty to minimize her damages when a water problem materialized and then was not corrected. It is denied that Plaintiff did not minimize her damages: By way of further answer, Plaintiff installed a well. as a last resort in order to assure access to potable water to make her premises habitable. 40. Denied. It is specifically denied that Defendant allowed Plaintiff to come onto the property at 89 Hershey Road. In fact, Defendant prevented Plaintiff and her representatives from locating said water line to determine what the problem was. 41. Admitted in part and denied in part. It is admitted that Plaintiff's husband and Defendant's son attempted to determine what the problem was on one occasion; it is denied that any additional digging occurred or was permitted or that the location of the WEIGLE & ASSOCIATES, P. C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-7397 water problem was ever found on that one occasion. Byway of further answer, Plaintiff has made numerous requests to reenter the property in an effort to determine the problem but admission onto tho property was firmly denied. 42. Admitted in part and denied in part. It is admitted that Plaintiff drilled her own well to resolve the continuing problems with the water line, the lack of water pressure, and the random complete shutoff of water by the defendants to the Plaintiff's property. It is denied that Plaintiff had any other .viable option to make her home immediately habitable and strict proof to the contrary is demanded at trial. WHEREFORE, Plaintiff demands judgment against the Defendants in the amount of $ 7,282.72, interest thereon in the legal rate, costs, and reasonable attorneys fees and such other equitable relief as the Court may determine to be just and reasonable. Respectfully submitted, WEIGLE & ASSOCIATES, P.C. ,~''1 1 a, Jerr~A. Weigl>~Esquire Attorney for Plaintiff Supreme Court ID # 01624 126 East King Street Shippensburg, PA 17257 717-532-7388 WEIGLE & ASSOCIATES, P.G. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 VERIFICATION I verify that the statements made in the foregoing Answer to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. oa~m 1 !S/ arbara Kyner Ward;' WEIGLE & ASSOCIATES, P.C. -ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397 IN THE COURT OF COMMON PLEAS OF BARBARA KYNER, WARD, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs Case No. 09-7696 C VIL- f1 VERA RICE RODNEY E. RISE and SANDRA J. RICE - ro Defendants _ ., Statement of Intention to Proceed c . - - To the Court: The plaintiff, Barbara Kyner Ward, intends to proceed with the above captio ed-ma er Print Name JERRY A. WEIGLE, ESQ. Sign Name e7 �. Date: October 28, 2013 Attorney for Plaintiff Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I.Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b)has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and"the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d)for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision(d)(3)requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2.