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HomeMy WebLinkAbout10-0254 FILED-?-YFICE Hubert X. Gilroy, Esquire OF - r ; T-' : uTA,'Y I.D. No. 29943 Seth T. Mosebey, Esquire 2010 JAN -8 AM III: Q9 I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER Y MARTSON LAW OFFICES v 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff LUCY M. JANSEMA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2010- ZS CIVIL ACTION ANDREW M. MCCREA and SALLY ANN MCCREA, 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 are served, by entering a written appearance personally or by an 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 THAI' MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 s 1 ?- d DP- a # I K /*? J-3 s9 f'a- F:\FII.ES\Clients\13640 Jansema\13640.1.cornimpd Created: 9/20/04 0:06PM Revised: 1/8/10 9:I8AM Hubert X. Gilroy, Esquire I.D. No. 29943 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff LUCY M. JANSEMA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA NO.2010- V. CIVIL ACTION ANDREW M. MCCREA and SALLY ANN MCCREA, Defendants COMPLAINT Plaintiff, Lucy M. Jansema ("Plaintiff'), by her attorneys, Martson Deardorff Williams Otto Gilroy & Faller, sets forth the following: 1. Plaintiff, Lucy M. Jansema ("Plaintiff'), is an adult individual residing at 31 West Main Street, Newville, Cumberland County, Pennsylvania. 2. Defendants, Andrew M. McCrea and Sally Ann McCrea ("Defendants") are adult individuals residing at 150 Gypsy Run Road, Newville, Cumberland County, Pennsylvania. 3. On August 5, 1986, the parties executed an Option to Purchase Real Property ("Option"). A true and correct copy of the Option is attached hereto and incorporated as Exhibit «A 9, 4. Paragraph 1 of the Option provides Plaintiff with an option to purchase certain real property located in Lower Mifflin Township, Cumberland County, known as Pond Field. 5. Pursuant to Paragraph 2 of the Option, the period for Plaintiff to exercise her option to purchase Pond Field would commence on the ninetieth (90`h) day following the death of Mary H. McCrea (mother of Plaintiff and Defendant Andrew M. McCrea) and end nine (9) months thereafter. 6. The option in question was granted from Defendants to the Plaintiff as a result and at the direction of Mary H. McCrea who desired Plaintiff to receive the Pond Field if Plaintiff desired after Mary H. McCrea's death, and was also granted simultaneous with a conveyance by Mary H. McCrea of a larger tract of land to the Defendants a part of which included the Pond Field. 7. Paragraph 11 of the Option states that settlement on Pond Field shall occur within ninety (90) days from the date of Plaintiff s exercise of the option. 8. Mary H. McCrea died on February 10, 2009. 9. On October 18, 2009, Plaintiff timely exercised her option to purchase Pond Field. A true and correct copy of Plaintiffs correspondence to Defendants is attached hereto and incorporated as Exhibit "B." 10. In order to occupy the land, Plaintiff must obtain subdivision approval from Lower Mifflin Township. 11. Pond Field is a landlocked parcel of property, which will require Plaintiff to obtain a right-of-way. 12. Under the Lower Mifflin Township Ordinance, the right-of-way must be at least fifty (50) feet in width. 13. Defendants have acknowledged that they will oppose any waiver of the width of the right-of-way which Plaintiff may seek. 14. Because the of the topography of the land and Defendants' opposition to a waiver request, Plaintiff will be required to negotiate the grant of an easement from an adjacent landowner. 15. Defendants allege that Plaintiff will also be required to negotiate the purchase of an easement from the Church of God to obtain access to the public road south of Pond Field. 16. Defendants have also suggested that Plaintiff must purchase an easement over other lands of the Defendants in order for Plaintiff to gain access to the Pond Field, and Defendants have suggested that Plaintiff must purchase that land. This is contrary to the intent of the option in that it was clear that Mary H. McCrea intended that as a condition of her conveyance of the mentioned real estate to Defendants, Defendants would grant Plaintiff the option as indicated, that Defendants would give Plaintiff access to the Pond Field at no additional consideration, and that Defendants would cooperate in a good faith manner in Plaintiff s efforts to obtain the necessary subdivision of the Pond Field and gain appropriate access. COUNT I - REFORMATION OF CONTRACT 17. Paragraphs 1 through 16 are incorporated herein by reference as though fully set forth below. 18. Plaintiff's ability to settle on Pond Field within ninety (90) days of exercising her option is impossible, or at a minimum impracticable, due to the requirement of subdivision approval and necessity of obtaining easements. 19. The above-referenced impossibility of performance is through no fault of Plaintiff. 20. Settlement within ninety (90) days of exercising the option was made based on the assumption that Plaintiff would not be required to obtain subdivision approval and that Plaintiff would not experience the difficulties, including Defendants' lack of cooperation, and delay in obtaining the necessary easements. 21. Due to the practical realities of obtaining subdivision approval, which was not contemplated by the parties at the time of negotiating and executing the Option in 1986, and negotiating the necessary easements for Pond Field, it is impossible for the parties to settle within ninety (90) days of Plaintiff's exercise of her option to purchase Pond Field. 22. Furthermore, the requirement of subdivision approval and negotiating the necessary easements was a mutual mistake which neither party contemplated when negotiating an executing the Option in 1986. 23. Defendants will not be prejudiced by an extension of time for Plaintiff to settle on Pond Field; therefore, both parties can be placed in the positions they intended as memorialized in the Option. 24. Since Plaintiff has become aware of Defendants' position in this matter, Plaintiff has in good faith attempted to negotiate a reasonable resolution with the Defendants to obtain an extension in order for Plaintiff to proceed with surveying work, negotiation of necessary easements and other matters that would be necessary to obtain a subdivision of the Pond Field. Despite such good faith efforts by Plaintiff, Defendants have refused Plaintiff's overtures and have consistently maintained that Plaintiff must abide by the ninety (90) day time limit set forth in the Option which, as indicated, is practically impossible. 25. Plaintiff has funds necessary to proceed with the survey work and has initiated negotiations for the possible obtaining of any necessary easements from adjacent landowners, as may be required, in order to fulfill the terms of the Option. WHEREFORE, Plaintiff requests that this Honorable Court enter an Order reforming the Option and providing Plaintiff with a reasonable extension of time from the date of the entry of its Order in which to settle on Pond Field. COUNT II - ANTICIPATORY BREACH OF CONTRACT 26. Paragraphs 1 through 25 are incorporated herein by reference as though fully set forth below. 27. Pennsylvania law is clear that there is implied in an agreement by the parties to a contract to do and perform those thing that, according to reason and justice, they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party's right to receive the fruits of the contract. 28. Defendants' actions have absolutely and unequivocally destroyed or hindered Plaintiff's ability to settle on Pond Field within ninety (90) days of Plaintiff's exercise of her option. 29. Defendants have stated that they will oppose any waiver of the Lower Mifflin Township Ordinance with regard to the width of the right-of-way. 30. To date, Defendants have not provided their half of the estimated cost of completing a survey. 31. Defendants have suggested that Plaintiff must purchase an easement over other lands of the Defendants to gain access to the Pond Field which is contrary to the intent of the parties and the intent of Mary H. McCrea when the option was executed and is in violation of the agreement of the parties. WHEREFORE, Plaintiff requests that this Honorable Court enter an Order granting the following relief: (a) Granting Plaintiff a reasonable extension of time from the date of the entry of its Order in which to settle on Pond Field; (b) Prohibiting Defendants from opposing any waiver requests filed by Plaintiff with Lower Mifflin Township; (c) Directing the Defendants to convey the easement over their land to Plaintiff at no compensation; and (d) Assessing damages against Defendants as the Court deems appropriate. MARTSON LAW OFFICES By 26A J. Hubert X. Gilr4Eire I.D. No. 29943 Seth T. Mosebey, Esquire I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff EXHIBIT A i [43Thia OPTION TO PU$CBASE REAL PROPERTY option agreement made and entered into this IY_L day of %k , 1986, by and between ANDREW M. McCREA and SALLY ANN MCCREA, husband and wife, of Lower Mifflin Township, Cumberland County, Pennsylvania, hereinafter referred to as "SELLER/I, and LUCY H. McCREA BERILLA, of the Borough of Neville, Cumberland County, Pennsylvania, hereinafter referred to as `IBVYBR". WITNESSETH.- IILTON C. OAVI9 WOINIT AT LAI, LLI i INI„IN„U,I TUNA. WHEREAS, SELLER is the owner of certain property situated in the Township of Lower Mifflin, Cumberland County, Pennsylvania; and WHEREAS, the parties desire that SELLER hereby grant the BUYER an option to purchase all or part of said property on the terms and conditions hereinafter set forth. NOW, THEREFORE, for and in consideration of the payments, covenants and agreements herein as specified, the parties hereto intending to be legally bound hereby covenant and agree as follows; 1. For and in consideration of the sum of One ($1.00) Dollar in hand paid, by BUYER to SELLER, receipt of which is hereby acknowledged, SELLER hereby grants unto BUYER the exclusive and irrevocable option and right to purchase at any time within the option period herein provided, upon the terms and provisions of this agreement, the real property located and situate in Lower Mifflin Township, Cumberland County, Pennsylvania, Commonwealth of 'ennsylvania, more particularly described on Schedule "A" attached hereto and Incorporated by reference. 2. The option period shall be a nine (9) month-period, commencing on he ninetieth (90) day following the death of Mary H. McCrea (mother of III ,., x Andrew M. McCrea and Lucy H. McCrea Berilla) and expiring on the three hundred sixty-fifth (365) day following the death of Mary H. McCrea. 3. The option may be exercised by BUYER, her successors or assigns, during the option period, by mailing, telegraphing or delivering in person, a written notice of exercise to SELLER or SELLER's designee at R. D. i3, Box Lower Mifflin Township, Cumberland County, Pennsylvania, 17241, which said notice must be transmitted in such a manner as to be actually received by said SELLER before the termination of the option period as above specif ied. 4. Upon the exercise of the option in the manner aforesaid, this r' agreement shall, without further action of BUYER or SELLER, be and become a binding agreement of sale, and enforced by law or equity for sale by SELLER and purchase by BUYER of the premises described in Schedule A at the price specified in Paragraph 6 hereof and upon the terms and conditions as thereinafter set forth. 5. The title to said property is to be conveyed free and clear of all TON C. DAVIS ONNp AT LAW A INI?P,N„NN8 FMA• lencumbrances except for the following reservations, exceptions and leases, and no others: existing building restrictions, ordinances, privileges or rights of public service companies, if any. If this option is exercised by Lucy H. McCrea Barilla, she shall be entitled to erect or construct one residential dwelling (and customary appurtenant buildings) upon the land and SELLER and BUYER must thereafter mutually consent in writing to any future development or subdivision of either the option area or the remaining land which is at the time owned by SELLER. (I 6. The total purchase price for said property shall be Five Hundred ($500.00) per acre calculated upon the exact acreage as determined by survey; 2 said amount includes the amount paid by BUYER to SELLER pursuant to Paragraph r' ,TON C. DAVIS a.+leY AT NAw a SHI??IM.sY28 Ptu" 1 above. I1 7. SELLER agrees that, except as herein provided, all taxes, liens, encumbrances or other interests of persons not a party to this Agreement will be satisfied, discharged or paid by the SELLER including other expenses incident to the preparation and execution of the deed. 8. The SELLER further agrees to coney said property to the BUYER by general warranty dead, conveying to the BUYER a good and marketable. valid, unencumbered, indefeasible fee-simple title to the property; that the purchase price shall be payable at the time of settlement; and that said lands, including improvements, shall be delivered in the same condition as they now erat customary use and wear expected. 9. Taxes, water assessments and other general and special assessments of whatsoever nature for the year in which the settlement of the transaction (takes place shall be prorated as of the data of the settlement of the transaction. If the settlement of the transaction shall occur before the tax rate is fixed, the apportionment of taxes shall be on the basis of the tax rate for the next preceding year applied to the latest assessed valuation. 10. Loss or damage to the property by fire or from an act of God shall be at the risk of the SELLER until settlement and in the event that such loss for damage occurs. the BUYER may, without liability, refuse to accept conveyance of title, or may elect to accept conveyance of title, in which case there shall be an equitable adjustment of the purchase price. 11. In the event this option is exercised, settlement shall take place within ninety (90) days from the date of exercise. 12. This Agreement and.the settlement hereunder if the option granted 3 r. .TON C. OAVIS 'oNNO1 At LAW I S 1NIFFINNNNNN PINNA. herein is exercised shall be subject to the following additional terms and conditions: A.' The parties hereto agree that the exact location of the boundaries of the area subject to this option shall be determined by a survey at the time of the exercise of this option (if the same is exercised) and this survey and location will be done based upon the agreement between the parties hereto and that the cost and expanses of the survey and subdivision necessary to stake settlement under the exercise of this option shall be shared equally by the parties hereto B. If this option is exercised by Lucy H. McCrea Barilla and as the result thereof, she shall acquire ownership of the option area, SELLER shall have the right of first refusal to purchase the option area if Lucy H. McCrea Berilla should bona fide desire to sell or convey or otherwise transfer the same. If this right of first refusal is exercised by SELLER, the price of the land shall be the same as was paid by Lucy H. McCrea Berilla and if any improvements have been erected or constructed thereon, they shall be appraised by a qualified appraiser agreeable to the parties hereto (or if they cannot agree upon an appraiser, each shall select one and the two shall select a third and the three shall agree by a majority vote) and BUYER shall pay to Lucy H. McCrea Berilla the amount for which the improvements, if any, are appraised. C. The rights granted unto the BUYER, Lucy H. McCrea Berilla hereunder shall be personal to her and shall not be assignable by her, either voluntarily or involuntarily, to any party or person nor shall the saute be exercisable by any attorney-in-fact, guardian, trustee or other person except Lucy H. McCrea Berilla. And this agreement shall terminate 4 and thereafter be of no futher force and effect upon the death of Lucy H. McCrea Berilla should her death occur prior to the completion of settlement for the subject pra>aises. r' IN WITNESS WHEREOF, the SELLER and the BAYER, intending to be legally bound hereby, and intending to legally bind their respective heirs and ' assigns, have sat their hands and seals this"`` daY of As-?? 1986. WITNES -{,STEAL) Mdrew K. McCSEI? 11----??==-- SELLER 0;; (SEAL) tally n ACraa SEDER (SEAL) '- cy KeCrea Barill BAYER ILTDM C. DAVIS tttORMer At LAW 11t[ i $101"9024YR11 PC"" 5 SCHEDULE "A" ALL that certain parcel of land situate in Lower Mifflin Township, Cumberland County, Pennsylvania, being k part of premises conveyed to*SELLEit by Mary H. McCrea by deed dated the day of it'du < ., , 19$6, recorded in the Office of the Rocor sr o Deeds In and for Cupkirland dountyp -, AML Pennsylvania, in Dead gook Vol, _'. !fie which area is sn area of approximately 13.5 acres, of land, consisting of a iOld of appto*i atelr 13 acres in area which is commonly referred to by the parties hereto send other members of the McCrea family as the "Pond Field",, together w*tb approximately 1/2 acre of woodland adjacent thereto an the north, than Oral location of which the parties heretofore &%so.ued sad agreed upon The exact location and boundaries of this area are to be determined by survey and agreement of the parties pursuant to provisions of the agreement contained r. IILTOM 6. OAV1S %TTon*gv AT LAN ILI, A SM1„lM„UMN P[MMA. 6 EXHIBIT B Lucy M Jansema 31 W Main St Newville, PA 17241 Andrew and Sally Ann McCrea 150 Gypsy Run Road Newville, PA 17241 October 18, 2009 Dear Andrew and Sally Ann, I am exercising the option on the Pond Field as stated in the Agreement of Sale this 180, day of October, 2009. Lucy M. Jansema, aka, Lucy McCrea Berilla VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I nuke knowingly false averments, I may be subject to criminal penalties. L 'Y JANS MA Salzmann Hughes, P.C. RLE[}-O'TCE James D. Hughes, Esquire {- T !- PP, ,()T j()T Attorney I.D. No. 58884 354 Alexander Spring Road, Suite 1 20 Q FE8 -' $ PL 3? 2 Carlisle, Pennsylvania 17015 D ? 1 (717) 249-6333 LUCY M. JANSEMA, IN THE i66'ikOMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ANDREW M. MCCREA and SALLY ANN MCCREA, Defendants To: Lucy M. Jansema 31 West Main Street Newville, PA 17241 NO. 2010-254 CIVIL ACTION NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer and New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, Salzmann Hughes, P.C. Date: -Zf O// O Aey I.D. # 58884 sann B. Morrison, Esquire Attorney I.D. # 77041 354 Alexander Spring Road Carlisle, Pennsylvania 17015 717.249.6333 Attorneys for Defendants Salzmann Hughes, P.C. James D. Hughes, Esquire Attorney I.D. No. 58884 354 Alexander Spring Road, Suite 1 Carlisle, Pennsylvania 17015 (717) 249-6333 Attorney for Defendants LUCY M. JANSEMA, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ANDREW M. MCCREA and SALLY ANN MCCREA, Defendants NO. 2010-254 CIVIL ACTION DEFENDANTS' ANSWER WITH NEW MATTER Defendants, Andrew M. McCrea and Sally Ann McCrea ("Defendants"), by and through their attorneys, Salzmann Hughes, P.C., hereby file this Answer with New Matter in response to the Complaint of Lucy M. Jansema ("Plaintiff') as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. By way of further response, as to the Option to Purchase Real Property ("Option"), the written agreement speaks for itself and therefore no response is required. 5. Admitted. By way of further response, as to the Option, the written agreement speaks for itself and therefore no response is required. 6. Admitted in part, denied in part. It is admitted that the Defendants entered into the Option with the Plaintiff at the time they purchased the larger tract of land in which the Pond Field is included. It is denied that there was any requirement as a part of the overall transaction that the Defendants grant the Option to the Plaintiff. By way of further answer, the Defendants did agree to grant the Option in an effort to relieve their mother, Mary H. McCrea, from undue pressure being exerted by the Plaintiff at that time for such an option for the Pond Field. It is also specifically denied as to Mary H. McCrea's intent relative to an option being granted to the Plaintiff relative to the Pond Field. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. By way of further response, at the time the Option was entered into between the parties, Plaintiff was fully aware of the requirement that the Pond Field would need to be subdivided as a part of exercising her option. 11. Admitted in part, denied in part. It is admitted that the Pond Field would be a landlocked parcel of property absent obtaining the necessary rights of way to gain access to the public road. From the date of the Option between the Plaintiff and the Defendants, all parties knew or should have known of the need for Plaintiff to obtain such rights of way to the property. 12. Admitted. As to the Lower Mifflin Township Ordinance, no response is required as the Ordinance speaks for itself. However, upon information and belief, Defendants believe that any private right of way must be at least fifty (50) feet in width. 13. Admitted. By way of further response, the Defendants are concerned about the allowance of additional traffic on a sixteen (16) foot private road which does not easily allow two vehicles to pass at the same time. The Defendants have expressed traffic, health and safety concerns about having such a narrow right of way serve another residential use, specifically with respect to emergency vehicles, as well as maintenance issues concerning the private road. 14. Admitted in part, denied in part. It is denied that the sole reason for the need for the grant of an easement from an adjacent landowner is because of Defendants concerns about a waiver request on the width of the right of way and its topography. By way of further answer, it is acknowledged that the land adjacent to the existing sixteen (16) foot right of way has a tributary immediately adjacent to the roadway and therefore, an easement would be required from an adjacent landowner. These conditions have existed since 1986 when the Option was entered into between the parties. 15. Admitted. By way of further answer, the Defendants also have rights to a fifty (50) foot right of way together with the Church of God along the private right of way, which will be necessary to obtain access to the public road south of the Pond Field. Defendants have agreed in good faith to allow the Plaintiff access via this fifty (50) foot right of way in exchange for the somewhat insignificant fair market value of the same, however, it is the Defendants' opinion that their sole granting of this easement would be legally insufficient. Again, this easement with the Church of God has existed since the time of the Option in 1986. 16. Denied. The Option Agreement speaks for itself. By way of further answer, Mary H. McCrea is not a party to the Option Agreement and there were no conditions on the purchase of the larger tract by the Defendants relative to the Option Agreement. It is not stated anywhere in the Option Agreement that the Plaintiff would not need to tender the fair market value of any easement required. The Defendants have cooperated in good faith in immediately notifying the Plaintiff and the surveyor she selected to perform the services of the subdivision, namely Mr. Eric Diffenbaugh of Diffenbaugh Surveying, with the information the Defendants thought would be necessary relative to the Option. The Option was exercised as stated in the Complaint on October 18, 2009. To ensure that the Plaintiff was aware of any outstanding issues relative to the subdivision of the Pond Field, Defendants directed their legal counsel to directly contact the surveyor, Mr. Diffenbaugh, to ensure he was aware of these issues. The true and correct copy of the correspondence outlining such issues dated October 21, 2009, three (3) days after exercise of the Option, is attached to and incorporated herein as Exhibit "A" to this Answer. COUNT 1- REFORMATION OF CONTRACT 17. The responses to Paragraphs 1 through 16 are incorporated herein by reference as though fully set forth below. 18. Denied. The Option is clear on its face that settlement must occur within ninety (90) days of the Plaintiff exercising her Option. By way of further response, the Option period commenced as of the date of Mary H. McCrea's decease, specifically, February 10, 2009, with the intent being that the Plaintiff would have a period of nine (9) months commencing ninety (90) days after her decease in which to research and obtain any necessary easements or ascertain any requirements prior to exercising the Option. The ninety (90) day period after exercising the Option was solely for purposes of gaining municipal approval and settlement. 19. Denied. Defendants aver there is no impossibility of performance as the parties would not have agreed to this time frame in 1986 otherwise. Upon information and belief, the Plaintiff has done very little relative to subdivision of the Pond Field and resolution of the requisite issues, even up to the date of filing the Complaint. By way of further response, the Contract is very clear about the amount of time allotted and the Plaintiff's lack of investigation or any action during the Option period, which under Paragraph 2 of the Option Agreement was intended to be 365 days after the death of Mary H. McCrea, were solely the responsibility and fault of the Plaintiff. 20. Denied. The Option speaks for itself. By way of further response, Paragraph 12A. specifically contemplates the necessity of a survey and subdivision as the parties were to equally share the costs of the same. It is also specifically denied that the Defendants have shown anything but cooperation in this process, however, cooperation does not include reforming the clear terms of the Contract. 21. Denied. By way of further response, given the length of the Option, the Option speaks for itself and the Defendants and Plaintiff both agreed on the ninety (90) day time frame when executing the Option in 1986. 22. Denied. It is specifically denied that there was any mutual mistake relative to the terms of the Option in 1986. By way of further response, the Defendants were willing to grant the Option only upon the terms set forth in the Option document with the intent that if the Plaintiff did not follow through with the same, the Option would terminate. 23. Denied. It is specifically denied that the Defendants will not suffer prejudice as the Defendants specifically entered into the Contract accepting its terms as signed by both parties. 24. Denied. Defendants are unaware of Plaintiffs efforts in obtaining the subdivision and the other requirements associated therewith. Defendants deny any good faith efforts by Plaintiff in attempting to comply with the Option, despite their good faith efforts to cooperate and make the Plaintiff aware of issues relating to the same. Defendants also deny the impossibility of Plaintiff complying with the Option as set forth in the Agreement. 25. Denied. Defendants are without sufficient information to form any belief as to the averments of Paragraph 25 and therefore the same are denied. COUNT II- ANTICIPATORY BREACH OF CONTRACT 26. The responses to Paragraphs 1 through 25 are incorporated herein by reference as though fully set forth below. 27. Paragraph 27 contains conclusions of law to which no responsive pleading is required. To the extent any responsive pleading is required, the same is specifically denied. 28. Denied. To the contrary, Defendants have in good faith alerted the Plaintiff of any potential issues on subdividing the Pond Field and have in no way destroyed or hindered her ability to exercise the Option as set forth in the Option Agreement. 29. Admitted. By way of further answer, Defendants are quite concerned about the health and safety risk of having additional residential traffic utilizing a sixteen (16) foot right of way as stated in the response to number 13 above. 30. Denied. It is specifically denied that the Defendants have not made arrangements for payment of one half of the estimated cost of completing the survey as required under Paragraph 12A of the Option. By way of further response, the Defendants contacted Mr. Diffenbaugh directly and asked whether he would like any monies in advance for their part of the cost. Mr. Diffenbaugh did not request any additional funds in order to commence the work. Defendants at all times have stood ready to pay one half of any cost associated with the survey and subdivision. 31. Denied. It is specifically denied that the Agreement states any intent of the parties relative to the purchase of any easements needed for subdivision of the Pond Field. NEW MATTER 32. Defendants' Answers to Paragraphs 1 through 31 are incorporated herein as if set forth in full. 33. The Option Agreement between the Plaintiff and Defendants was entered into after the Defendants had purchased the larger tract, of which the Pond Field is a part, from Mr. McCrea's mother, Mary H. McCrea. 34. Mary H. McCrea is not a party to the Option. 35. The Option clearly contemplated an option period of nine (9) months commencing on the 90th day following the death of Mary H. McCrea pursuant to Paragraph 2 of the Option. 36. Paragraph 11 clearly indicates that should the Plaintiff exercise the Option, settlement should take place within ninety (90) days from the date of exercising the Option. 37. There were no contractual stipulations from Mary H. McCrea in the sale of the larger tract of which the Pond Field is a part to the Defendants. 38. Upon information and belief, the Plaintiff did attend a municipal meeting in Lower Mifflin Township to inquire about subdivision of the Pond Field during the option period, which was prior to her exercising the Option as stated under the Option Agreement. 39. Upon information and belief, other than attending a municipal meeting, the Plaintiff has undertaken no further steps to understand or act upon the requirements relative to the subdivision of the Pond Field. 40. The Option is very clear and unambiguous on its face relative to the Plaintiff's requirements in exercising the Option and making settlement on the purchase of the Pond Field. 41. Upon information and belief, up through the date of filing the Complaint in this matter, the Plaintiff has made no submission of any kind to Lower Mifflin Township relative to the subdivision or any other action relating to the subdivision of the Pond Field. 42. Defendants have continued to honor the terms of the Agreement as it has been written. 43. It is the Plaintiff's inaction which has led to her inability to exercise the Option. 44. Based upon the date in which the Plaintiff exercised the Option, namely October 18, 2009, Plaintiff had failed to make settlement on the Option by January 16, 2010, the date of expiration of the Option specifically provided for in accordance with the terms of the Option agreement entered into between the Plaintiff and Defendants. 45. By the terms of the Option Agreement, the Option has lapsed. 46. Defendants have in no way breached any terms of the Option. WHEREFORE, Defendants request this Honorable Court to enter an Order denying Plaintiff's request to reform the Option contract which is clear on its face without ambiguity, thereby declaring the Option terminated, together with any and all damages, costs and attorney's fees and any other damages that this Court deems appropriate against the Plaintiff. Respectfully Submitted, P.C. ies, Esquire 58884 Susan .pB. Morrison, Esquire A ey ID# 77041 54 Alexander Spring Road, Suite 1 Carlisle, Pennsylvania 17015 Telephone: (717) 249-6333 Fax: (717) 249-7334 Date: Z /?j t7 Attorneys for Defendants VERIFICATION I verify that all the statements made in the foregoing Responsive Pleading are true and correct to the best of my knowledge, information and belief and that any false statements made are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: Z? / ` /'`C Andrew M. McCrea L Sally AtiffMcCrea EXHIBIT "A" LZMANN 4TLI fGHESPC. Attorneys at Law EXPERIENCE • INTEGRITY • INNOVATION 1 79 St. Paul Drive • Chambersburg, PA • 17201 • (717) 263-2121 • Fax (717) 263-0663 354 Alexander Spring Road • Suite 1 Carlisle, PA • 17015 • (717) 249-6333 • Fax: (717) 249-7334 239 E. Main St. -Waynesboro, PA • 17268 • (717) 762-3170 Fax: (717) 762-0988 105 N. Front St. ; Suite 401 Harrisburg, PA • 17101 - (717) 234-6700 • Fax (717) 249-7334 *Please reply to Carlisle Office October 21, 2009 YIA E-MAIL AND FIRST CLASS MAIL Eric Diffenbaugli Diffenbaugh Surveying 25 Broad Street Newville, PA 17241-1501 RE: McCrea Property/ Lower Mifflin Township/ Option Agreement Dear Eric: As you are aware,. our firm represents Andrew M. and Sally Ann McCrea with respect to an Option Agreement with Lucy H. McCrea-Berilla, dated on or about August 5, 1986. It is my understanding that you will be performing the survey and single lot subdivision for that area of my client's property (which is known as the "Pond Field"), together with approximately one-half acre of woodland adjacent thereto on the north side of the subject property. It is further my understanding that my clients and the Optionee, now Lucy Janserna, met on or about October 18, 2009, and have established the boundaries as contemplated under the Option Agreement. As we discussed during our earlier conversation, I wanted to ensure that.you are aware of several issues that will need to be addressed as a part of the contemplated subdivision. The first issue concerns the fact that there is an approximately fifteen thousand (15,000) square foot strip of land that the Optionee will need to purchase from the edge of the Pond Field to the property line. owned by my clients. Without this easement, this parcel would undoubtedly be landlocked. Mr. McCrea is willing to grant such an easement for the fair market value of the same. The second issue concerns the fact that the Township under its ordinances requires that any private right of waybe at least.fifty.(50) feet in width. Although Mr. McCrea now owns property to the. east of the sixteen (16) foot private road (formerly of Joseph Salsbury) which: extends to the public road,.the topography of the ATTORNEYS G. Bryan Salzmann, Esq... Stephen E. Patterson, Esq. Melissa K. Dively: Esq. Samuel E. Wiser, Jr., Esq. James D. Hughes, Esq. LeRoy S. Maxwell it ,. Esq. Rebecca R. Hughes, Esq. George F. Douglas,.III,. Esq. Adam R. Schellhase, Esq. Nancy H. Meyers.Es : Morrison; Esq. Donald E. I:eFever, Esq. bles, Esq.* Charles E. Zaleski, Esq. Ann E. Dera EXHIBIT I(COM Thomas J. Finueane, Esq. Patricia R Br eau, Esq. 'Also Admitted to Georgia Bar Eileen C. Finucane, Esq. William W < A , Esq. x WWW. Eric Diffenbaugh October 21, 2009 Page Two land and the tributary immediately parallel to the private road does not allow for widening of the easement on the eastern side. Therefore, the Optionee will need to explore the granting of an additional easement from the adjacent landowner. It is Mr. McCrea's position that if additional traffic is to be burdening this narrow private lane, any type of waiver of the fifty (50) foot requirement would be inappropriate. Third, there is in existence a fifty (50) foot easement inclusive of the private roadway from the Church of God property south to the public road. However, this easement is for the benefit of the church and the property currently owned by Mr. McCrea, and therefore any additional use of this easement area will need to be purchased for its fair market value from those parties. As the option agreement is very specific that the Optionee must settle within ninety (90) days from the date of exercising the option (October 18, 2009), I wanted to ensure that you were aware of these issues as you completed the survey and prepared the subdivision. To the extent that you have any questions, or are in need of any documentation which we can provide for you, please do not hesitate to give me a call. It is my understanding that you already have a copy of the option agreement, which provides, inter alia, that the costs and expenses associated with your services for the survey and subdivision would be shared equally between the parties. As such, I request that you contact Mr. McCrea and provide him with an estimate of the cost for your services so that he knows what to expect. As always, in the event you have any other questions or concerns, please do not hesitate to give me a call. P. C. JDH/krc CC: Mr. & Mrs. Andrew M. McCrea Very truly yours, CERTIFICATE OF SERVICE I hereby certify that on the 6'("' day of February 2010, I served a true and correct copy of the foregoing document via United States mail, first class, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Respectfully submitted, HES, P.C. James D. ghes, Esquire Attorne .D. # 58884 Sus B. Morrison, Esquire A rney I.D. # 77041 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333 FAX: (717) 249-7334 LUCY M. JANSEMA, V. Plaintiff ANDREW M. McCREA and SALLY ANN McCREA, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2010-254 : CIVIL ACTION r ACCEPTANCE OF SERVICE 00 N I, James D. Hughes, Esquire, attorney for the Defendants in the above-captioned matter, hereby agree on behalf of my clients, Andrew M. and Sally Ann McCrea, to g , accept service of the Plaintiff's Complaint, which was filed on q Vwrv 2010. ey .58884 HUGHES, P.C.r Spring Road, Ste. 1 554exande e, PA 17015 Attorney for Defendants Date: ?, 2010 Hubert X. Gilroy, Esquire I.D. No. 29943 Seth T. Mosebey, Esquire I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff F7LED +? lu` 0- rl?r PROTHONOrApy 1010 MAR -4 PM 3- PENN SYLIIAN'4 LUCY M. JANSEMA, Plaintiff V. ANDREW M. MCCREA and SALLY ANN MCCREA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-254 CIVIL ACTION PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER Plaintiff, Lucy M. Jansema, sets forth the following in response to Defendant's New Matter: 32. No responsive pleading is required. 33. DENIED. On the contrary, the sale of the larger tract of land by Mary H. McCrea to Defendant was essentially made simultaneously with the Defendant's execution of the option agreement. By definition, the option agreement could not have been executed until actually Defendant owned the real estate. However, all documents were prepared by the same attorney and executed in a mutual settlement at the same time involving Plaintiff, Defendants and Mary H. McCrea. 34. ADMITTED. 35. DENIED. Said allegation is a Conclusion of Law and no responsive pleading is required. In the alternative, the option agreement speaks for itself. 36. DENIED. Said allegation is a Conclusion of Law and no responsive pleading is required. In the alternative, the option agreement speaks for itself. By way of further answer, Defendants are aware that it is impossible to get a residential subdivision approved within ninety days because of Pennsylvania Department of Environmental Protection (DEP) Rules and regulations which have been adopted subsequent to the execution of the option agreement between the parties. 37. DENIED. On the contrary, Mary H. McCrea dictated that the Defendant's execution of the option agreement was part and parcel of the agreement of Mary H. McCrea to convey the larger tract to the Defendants. 38. ADMITTED. 39. DENIED. Plaintiff has made numerous efforts to act upon the option agreement including, but not limited to, the following: A. Reviewing the matter with legal counsel. B. Discussing the matter with a surveyor. C. Requesting Defendants to pay funds for a subdivision survey, which request Defendants have refused to act upon. D. Asked the Defendants to attempt to set the parameters of the "pond field" so that a survey could be competed. By way of further answer, Defendants even refused to meet at the property to outline the parameters of the "pond field" until Plaintiff formerly executed the option which further delayed and obstructed Plaintiff's ability to proceed with reasonable exercise of the option agreement. Furthermore, Defendants have on a number of occasions even refused to discuss the "option" agreement between the parties. Additionally, Defendants have "dictated" the boundaries of the pond field in an arbitrary and capricious manner contrary to the intent and terms of the option agreement. 40. DENIED. Said allegation is a Conclusion of Law and no responsive pleading is required. In the alternative, the option agreement speaks for itself. By way of further answer, the impossibility of concluding the subdivision within ninety days because of the mentioned DEP regulations makes it clear and unambiguous that the parties were under a mutual mistake when they agreed to a ninety day time frame to settle on the real estate after exercising the option. 41. ADMITTED. By way of further answer, because the real estate in question is owned by the Defendants, the Defendants must join in a submission to Lower Mifflin Township relative to subdivision. Additionally, Defendants have failed to pay monies for purposes of completing a subdivision survey and have otherwise failed to meet their obligations under the option agreement. 42. DENIED. The allegations as set forth in Plaintiff's Complaint are incorporated herein by reference thereto. Additionally, the Defendants have failed to honor their terms under the option agreement in a number of ways including, but not limited to the following: A. Defendants would not discuss setting the parameters of the "pond field" until after Plaintiff exercised the option agreement. B. Defendants wrongfully attempted to suggest that the option period started to run once Plaintiff simply provided Defendants with a copy of the option agreement, which was at the Defendants' request when Defendants suggested they did not even have a copy of the option agreement. C. Defendants have refused to make payments for completion of the survey that is necessary in this case. 43 DENIED. On the contrary, it has been the anticipatory breach of the Defendants which has delayed Plaintiff's exercise of the option. 44. ADMITTED that settlement has not taken place. DENIED that Plaintiff has "failed to make settlement". Failure to make settlement is the sole cause of the Defendants. 45. DENIED. Said allegation is a Conclusion of Law and no responsive pleading is required. In the alternative, the option agreement is extended because of Defendants' breach of the agreement. 46. DENIED. Said allegation is a Conclusion of Law and no responsive pleading is required. In the alternative, Defendants have breached the option agreement for reasons as set forth in the Complaint and above. WHEREFORE, Plaintiff requests your Honorable Court to enter judgment in her favor as set forth in the Complaint. Date: March, 2010 MARTSON LAW OFFICES By a?X " Hubert X. Gilroy, Esq ire I.D. No. 29943 10 East High Stree Carlisle, PA 170 (717) 243-334 Attorneys for Plaintiff VERIFICATION The foregoing Answer is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. L Y M.(bkNSEN4iK Lucy M. Jansema vs Case No. 2010-254 ;.; Andrew M. McCrea and , Sally Ann McCrea c..) `,'i Statement of Intention to Proceed .< + —0 t^. To the Court: Lucy M. Jansema intends to proceed with the ••ove captioned matter. Hubert X. Gilroy, Esquire.an Name Print Name b Date: October 2.+, 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 Ru1e230(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.