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HomeMy WebLinkAbout01-0714IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY Plaintiff VS. ci-ol- CHICAGO TITLE INSURANCE COMPANY Defendants /tOO ~a, TO THE PROTHONOTARY: PRAECIPE Please issue a Writ of Summons in the above-captioned matter against Chicago Title Insurance Company. Respectfully submitted, BLAKINGER, BYLER~& THOMAS, V.C. Aaron S. Marines, Esquire Attorney I.D. No. 85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Commonwealth of Pennsylvania County of Cumberland GERALD EBERLY Plaitiff C~ICAGO TITLE INSURANCE COMPANY 1100 MAIN STREET SUITE 500 KANSAS CITY MISSOURI 64105 Court of Con. non Pleas No ...... 9-%-- 7 !-4_ -c- -~-v-%~- ................. l~ .... i~ _ _ _ _c)_v_%A _ -~- - ............................... To C~ICAGO TITLE INSUPANCE CCMPANY You are hereby notified that ._~8AL~_~F2RLY_ .............................................................. ~ ................. the Plaintif{ haS commenced an ac6on in -_-C2~[I.L-I~ .......................................... against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date ~'~RUARY 5, 2001 ~ .... Prothonotary .... IN THE COURT OF COMMON PLEAS IN AND FOR CUMBERLAND COUNTY, PENNSYLVANIA GERALD EBERLY, Plaintiff, NO.: 01-714 Civil In Civil Law CHICAGO TITLE INSURANCE COMPANY, Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance in the above-referenced matter on behalf of the Defendant Chicago Title Insurance Company. KLEHR, HARRISON, HARVE~tr-~.x B,tLANZBURO & ELLERS LLkP X I.D. N4~..' 55876 / Cynthia A. Clark, Esquire I.D. No.: 71260 260 South Broad Street Philadelphia, PA 19102 Phone: (215) 569-3177 Telecopier: (215) 668-6060 Attorney for Defendant Date: March 19, 2001 PHIL1-390423-1 CERTIFICATE OF SERVICE The undersigned, counsel for Defendant First USA Bank, N.A., hereby certifies that on March 19, 2001, tree and correct copy of the Entry of Appearance on behalf of Defendant Chicago Title Insurance Company was served via first class mail upon the following: Aaron S. Marines, Esquire Blakinger, Byler & Thomas, P.C. 28 Penn Square Lancaster' PA 17603 ~~ Cl~ark~f, ~~ (717) 509-7277 GERALD EBERLY, Plaintiff VS. CHICAGO TITLE iNSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0714 CIVIL CIVIL ACTION - LAW IN RE: MOTION TO COMPEL ORDER AND NOW, this ,?- (,¢ day of July, 2001, argument on the within motion to compel is set for Thursday, August 30, 2001, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Aaron S. Marines, Esquire For the Plaintiff Cynthia a. Clark, Esquire For the Defendant :rim ess, J. · :¢ GERALD EBERLY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiff CHICAGO TITLE INSURANCE COMPANY, Defendants CI-01-714 DEFENDANT CHICAGO TITLE INSURANCE COMPANY'S RESPONSE TO PLAINTIFF'S FIRST REOUEST FOR PRODUCTION OF DOCUMENTS Pursuant to the Pennsylvania Rules of Civil Procedure, Defendant Chicago Title Insurance Company ("Defendant") hereby answers and objects as follows to Plaintiffs' First Request for Production of Documents (the "Document Requests"). I. GENERAL OBJECTIONS 1. Defendant objects to the Document Requests to the extent that they seek information that is protected from discovery by attorney-client privilege, the work-product doctrine or any other applicable claim of privilege. 2. Defendant objects to the Document Requests to the extent that they exceed the scope of discovery permitted by the Pennsylvania Rules of Civil Procedure. 3. Defendant objects to the Document Requests to the extent that they are over broad or unduly burdensome. 4. Defendant obi ects to the Document Requests to the extent that they seek information that is irrelevant and not likely to lead to the discovery of admissible evidence. 5. Defendant objects to the Document Requests to the extent that they request the production of any information and/or documents not in the possession, control or custody of Defendant. 6. Defendant has not completed its discovery, investigation or preparation for the trial of this matter. Accordingly, documents and information will be provided without prejudice to Defendant' s right to make further obi ections and present additional information and documents that are hereafter discovered or that further discovery and investigation may indicate are relevant to this action and called for by these Interrogatories. II. SPECIFIC OBJECTIONS AND ANSWERS 1. Please provide a copy of the insurance policy issued to Gerald Eberly, Policy No. 2281 -S, with an effective date of May 8, 1998. Answer Subject to and without waiver of the General Objections, Defendant will make available for inspection and copying all relevant, responsive, non-privileged documents in its possession, custody or control. 2. Please provide any and all documents concerning the Plaintiffs claim against the insurance policy made on or about April 5, 1999. Answer Defendant objects to this Document Request to the extent it seeks the production of documents protected by the attorney-client privilege and/or the work product doctrine. Subject to and without waiver of the foregoing objection and the General Objections, Defendant will make available for inspection and copying all relevant, responsive, non-privileged documents in its possession, custody or control. PHIL1- 390480~1 2 3. Please provide any and all correspondence or documents, both internal and with the Plaintiff, that discusses the Plaintiffs claim against the insurance policy. Answer Defendant objection to this Document Request to the extent it seeks the production of documents protected by the attorney-client privilege and/or the work product doctrine. Subject to and without waiver of the foregoing objection and the General Objections, Defendant will make available for inspection and copying ail relevant, responsive, non-privileged documents in its possession, custody or control. 4. Please provide the statements of any employee, agent, or investigator of Chicago Title Insurance Company concerning the property, the existence of any easements on the property, or the Plaintiffs claim against the insurance policy. Answer Subject to and without waiver of the General Objections, no such statements exist. 5. Please provide any and all investigation reports prepared by you or by anyone acting on your behaif concerning the Property, the existence of any easements encumbering the Property, or the Plaintiffs claim against the insurance policy. Answer Defendant objects to this Document Request to the extent it seeks to production of documents protected by the attomey-client privilege and/or the work product doctrine. Subject and without waiver of the foregoing objection and the General Objections, no such reports exist except for documents prepared by Plaintiff's counsel. 6. Please provide any appraisais of the Property performed by any employee, agent, or investigator on your behalf. PHIL1- 390480-1 3 Answer Subject to and without waiver of the General Objections, Defendant is unaware of any such appraisals. By way of further response, discovery is ongoing and Defendant reserves the right to supplement or amend its response to this Document Request if further discovery so warrants. 7. If any appraisals of the Property were performed, please provide the curriculum vitae, or other qualifications, of the person performing the appraisal. Answer Subject to and without waiver of the General Objections, Defendant is unaware of any such appraisals. By way of further response, please see Defendant's response to Document Request No. KLEAR, HARRISON, B'R]ANZBURG & ELLERS L"kP / Dated: May 4, 2001 By Micbpel K. Coran, Esquire I.D. ~,/o.: 55876 Cynthia A. Clark, Esquire I.D. No.: 71260 260 South Broad Street/' Philadelphia, PA 19102// Phone: (215) 569-3177 Telecopier: (215) 668~.360~ Attorney for Defend~ant CERTIFICATE OF SERVICE The undersigned, counsel for Defendant Chicago Title Insurance Company, hereby certifies that on May 4, 2001, true and correct copy of Defendant Chicago Title Insurance Company's Responses to Plaintiff's First Request for Production of Documents was served via first class mail upon the following: Aaron S. Marines, Esquire Blakinger, Byler & Thomas, P.C. 28 Penn Square Lancaster, PA 17603 xx / PHIL1-396337-I ASM:pao 234058.t (184t4.001) 7/19/01 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY VS. Plaintiff CHICAGO TITLE INSURANCE COMPANY Defendant CI-01-714 MOTION TO COMPEL PRODUCTION OF DOCUMENTS Plaintiff, Gerald Eberly, by and through his counsel, Blakinger, Byler & Thomas, P.C., hereby moves this Court for an Order compelling the Defendant to respond to the Plaintiff's Request for Production of Documents in the above-captioned matter. In support of this Motion, the Plaintiff avers as follows: 1. The Movant is Gerald Ebefly, an adult individual residing at 623 Maple Street, East Earl, Lancaster County, Pennsylvania ("Eberlf'). 2. Eberly instituted the above-captioned lawsuit against Chicago Title Insurance Company ("Chicago Title") on February 9, 2001 by filing a Praecipe for a Writ of Summons with the Prothonotary of the Court of Common Pleas of Cumberland County. 3. On or about February 28,2001, Ebefly served Chicago Title with the Plaintiff''s First Request for Production of Documents, a copy of which is attached hereto as Exhibit "A." 4. Eberly's counsel granted Chicago Title to extension of time, until May 4, 2001, to comply with Eberly's Request for the Production of Documents. 5. On May 4, 2001, Chicago Title served Eberly with the Defendant's response to the ASM:pao 234058.1 (18414.001) 7/19/01 Plaintiff's First Request for the Production of Documents. In the response, wh/ch is attached hereto as Exhibit "B," Chicago Title's counsel indicated that documents would be available for inspection and copying upon request. 6. By informal resolution, Chicago Title's counsel agreed to copy and deliver all documents by Eberly's Request for Production of Documents. 7. When Chicago Title and its counsel failed to produce the requested documents for approximately six weeks, Eberly's counsel informed Chicago Title's counsel that he would arrive at Chicago Title counsel's office to inspect and copy the requested documents. Chicago Title was given ten days' advance notice of this request. 8. On June 22, 2001, Chicago Title and its counsel did not produce documents for inspection and copying at the office of Chicago Title's counsel. 9. By letter dated June 29, 2001, the undersigned again sought informal resolution of Chicago Title's failure to comply with Eberly's Request for the Production of Documents. A copy of this letter is attached hereto as Exhibit "C." 10. To date, Chicago Title has failed to produce any documents sought by Eberly's Request for Production of Documents. 11. Chicago Title's actions in continually avoiding Ebefly's legitimate discovery requests have been dilatory, obdurate, and vexatious. WHEREFORE, the Plaintiff, Gerald Eberly, respectfully requests that this Court enter the attached Order compelling the Defendant, Chicago Title Insurance Company, to comply with the PlaintiWs First Request for the Production of Documents, and that the Defendant and its counsel be 2 ASM:pao 234058.1 (t8414.001) 7/19/01 forced to pay the costs and reasonable attorney's fees required to compel compliance with the Plaintiffs discovery request, together with any other sanctions this Court deems just and appropriate. Respectfully submitted, BLAKINGER, BYLER & THOMAS, P.C. Aaron S. Marines, Esquire Attorney I.D. #85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff ASM:pao 234058.1 ('18414.001) 7/19/01 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Motion to Compel Production of Documents upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: Cynthia A. Clark, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 BLAKINGER, BYLER & THOMAS, P.C. By: gr~4 Aaron S. Marines, Esquire Attorney I.D. #85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff Dated: ,2001 Exhibit A ASM:Imm 219,967 (18414.001) 2/27/01 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION o LAW GERALD EBERLY Plaintiff VS. CHICAGO TITLE INSURANCE COMPANY Defendants Cl-01-714 PLAINTIFF'S FIRST REOUEST FOR PRODUCTION OF DOCUMENTS TO: Chicago Title Insurance Company 11 O0 Main Street Suite 500 Kansas City, MO 64105 You are directed pursuant to Pa. R.C.P. 4009 to produce the documents and things described below at the offices of Blakinger, Byler &Thomas, P.C., 28 Penn Square, Lancaster, Pennsylvania 17603 within thirty (30) days of the service of this Request for the Production of Documents. A. DEFINITIONS 1. As used herein, the words '~you" and '~our" refer to defendant and defendant's agents, representatives, attorneys and all other persons acting or purporting to act on behalf of defendant. 2. As used herein, the word "document" shall mean the original and any copy, regardless of origin or location, or any book, pamphlet, periodical, letter, memorandum, telegram, report, study, handwritten note, working paper, or any other written recorded, punched, or taped matter, however produced, to which you have or have had access. 3. As used herein, "corporation," "company' or "entity" shall mean any corporation, partnership, sole proprietorship, company, entity or business operation. ASM:lnnm 219,967 (18414,001) 2/27/01 4. As used herein, "communication" shall mean all conversations, whether oral or written, ail telephone c. alls, tele~ams, letters, memoranda, documents, discussions or any other form of communication. 5. As used herein, "identify" or "identity" used in reference to an individual or person means to state his full name, present business and private addresses, his present or last known occupation, his employer, and employer's address. 6. As used herein, "identify" or "identity" when used in reference to a corporation, company, entity or institution means to state its full name and present address, any fictitious names under which it operates, and the present owners, officers and directors thereof with their current addresses. 7. As used herein, "identi~' or "identity" when used in reference to a document or communication means to state the date, author, type of document or communication (e.g., letter, memorandum, telegram, chart, etc.) or any other means of identifying it, its present location, and the name and address of its custodian. [f any such document or communication was, but is no longer, in your possession or subject to your control, state what disposition was made of it and who presently has it. 8. As used herein, "policy" shall mean the commitment for title insurance issued by Chicago Title Insurance Company, No. 2281 -S, with an effective date of May 8, 1998. 9. As used herein, "Proper~3~' shall mean the property described on Schedule C of the above-reference policy, located in Southampton Township, Cumberland County, Pennsylvania. 2 ASM:lrnm 219~)67 (18414.001) 2/27/01 B. DOCUMENTS AND ITEMS TO BE PRODUCED 1. Please provide a copy of the insurance policy issued to Gerald Ebedy, Policy No. 2281-S, with an effective date of May 8, 1998. 2. Please provide any and all documents concerning the Plaintiff's claim against the insurance policy made on or about April 5, ][ 999. 3. Please provide any and ali correspondence or documents, both internal and with the Plaintiff, that discusses the Plaintiff's claim against the insurance policy. 4. Please provide the statements of any employee, agent, or investigator of Chicago Title Insurance Company concerning the property, the existence of any easements on the property, or the Plaintiff's claim against the insurance policy. 5. Please provide any and all investigation reports prepared by you or by anyone acting on your behalf concerning the Property, the existence of any easements encumbering the Property, or the Plaintiff's claim against the insurance po[icy. 6. Please provide any appraisals of the Property performed by any employee, agent, or investigator on your behalf. 7. If any appraisals of the Property were performed, please provide the curriculum vitae, or other qualifications, of the person performing the appraisal BLAKINGER, BYLER &THOMAS, P.C. Attorney ID# 19524 Aaron S. Marines Attorney I.D. #85728 28 Penn Square Lancaster, PA 17603 (717) Z99~1100 Attorneys for Plaintiff 3 ASM.:lrnm 21~967 (18414.001) 2/27/01 CERTIFICATE OF SERVICE I hereby certify that 1 am this day serving the foregoing Plaintiff's First Request for Production of Documents upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by first class mail addressed as follows: Chicago Title Insurance Company ! 100 Main Street Suite 500 Kansas City, MO 64105 Date: ~ ~ -~:.c~ , 2001 BLAKINGER, BYLER &THOMAS, P.C, By: ,lames H. Thomas Attorney ID# 19524 Aaron S. Marines Attorney I,D. #85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff Exhibit B Exhibit C June 29, 2001 (717) 509-7Z76 Cynthia A. Clark, Esquire Klehr, Harrison, Harvey, Branzburg & £1lers, LLP 260 South Broad Street Philadelphia, PA 19102 Re: Eberly v. Chicago Title Insurance Company No. CI-01-714 Dear Ms. Clark: I am very disappointed in your lack of cooperation with discovery in the above- referenced matter. I am even more disappointed with the lack of professional courtesy or respect that you have shown towards me in this matter. I sincerely hope that this is not the way that you will continue to proceed in this case. I served the Plaintiff's first Request for Production of Documents in order to aid the drafting of a complaint on February 8, Z001. Thus, the documents requested, which I am certain are not numerous and are located in one file, were due on March 30, pursuant to Pa. R.C.P. 4009. 1 ~ranted you two extensions of time until May 4. When 1 finally received the Defendant's response to Plaintiff's request for the production of documents, your "standard response" was that the documents would be available for inspection and copying at your office in Philadelphia. In a subsequent phone conversation, you indicated that you would copy the documents for a reasonable fee and send them to me. For the next six weeks, my secretary and I attempted to contact you literally dozens of times to check the status of these documents, During the time, you refused to extend me the simple professional courtesy of a return phone call. On or about June 1 :Z, I left a message on your personal voice mail stating that I would arrive at your office on June 2Z to inspect and copy the documents, My secretary and I again called numerous times in the ensuing 10 days to confirm this date. Again, you never returned any of these phone calls. On June :ZiZ, I arrived at your office only to be informed by you that the documents that 1 have requested were not at your office, and were in the process of being copied. Cynthia A. Clark, Esquire June 29, 2.001 Page 2 You have violated Pa. R.C.P. 4009, by not producing documents or making them available for copying and inspection within thirty (30) days. If I do not receive these documents before July 6, I will bring a motion to compel production in the Court of Common Pleas of Cumberland County. I have been very reasonable in ~ranting your continued request for extension of time, but ! can no longer allow you to avoid this initial discovery, in the future, [ hope that you will begin to exhibit the courtesy and professionalism expected of those in our profession. Sincerely, BLAKING£R, BYLER &THOMAS, P.C. Aaron S. Marines ASM:Imm cc: Gerald Eberly ASM:pao:lmm 228067.4 (18414.001) 10/3/01 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY VS. Plaintiff CHICAGO TITLE INSURANCE COMPANY Defendant CI-01-714 TO THE WITHIN DEFENDANT: NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defense 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-(800)-990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar action dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objeeciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier smna de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte ASM:pao:Jmm 228067.4 (18414.001) 10/3/01 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY Plaintiff VS. CHICAGO TITLE INSURANCE COMPANY Defendant CI-01-714 COMPLAINT 1. Plaintiff is Gerald Eberly, an adult individual who resides at 623 Maple Street, East Earl, PA 17519. 2. The Defendant is Chicago Title Insurance Company, a Missouri corporation with a place of business of 1100 Main Street, Suite 500, Kansas City, MO 64105. 3. At all times relevant hereto it is believed that Hamilton C. Davis, and Joel R. Zullinger, Hamilton C. Davis, a professional corporation with a place of business of 200 Chambersburg Trust Building, Chambersburg, PA 17201, were agents of the Defendant, and authorized to issue a commitment for title insurance on behalf of the Defendant. 4. On May 8, 1998, the Plaintiff purchased property in Southampton Township, Cumberland County, Pennsylvania from Ivan Z. and Ellen M. Leid. This property is described in the Cumberland County Recorder of Deeds Book 177, Page 1, and a legal description of the property is attached as Exhibit "A," and included herein by reference. 5. On May 8, 1998, the Defendant, through its agent Hamilton Davis, issued a commitment for title insurance to the Plaintiff ("Commitment"). This Commitment is attached as Exhibit "B," and is included herein by reference. ASM:pao:lmm '226067.4 ("[64.14.001) 10/3/01 6. Pursuant to the Commitment, the Defendant issued a title insurance policy to the Plaintiff with an effective date of May 1 I, 1998 ("Policy"). The Policy is attached as Exhibit "C,' and is included herein by reference. 7. The Commitment and Policy are written contracts between the Defendant and the Plaintiff. They require, inter alia, that the Defendant inderanify the Plaintiff for losses arising out of defects in the title to the property which are covered by the Policy and not specifically excluded. 8. Schedule B, Section l of the Commitment provides a number of conditions precedent to the issuance of the title insurance policy. 9. Attorney Davis indicated by initialing that all of the conditions precedent listed in Schedule B, Section 1 were completed on or before May 8, 1998, 10. Schedule A, Section 2 of the Commitment insured that the Plaintiff would receive fee simple title to the property, subject to certain enumerated exceptions. 11. The Commitment lists several general exceptions to indemnity, which include "(2) encroachment, overlaps, boundary line disputes, and any other matters which would be disclosed b) an accurate survey and inspection of the premises; (3) easements, or claims of easements, not shov~ by the public records; " 12. Schedule B, Section 2 of the Commitment provides a number of specific exceptio: to indemnity under the policy, including "defects, liens, encumbrances.., created, first appearing the public records or attaching subsequent to the effective date hereof but prior to the date proposed insured a ' " cqmres the property. 13. Subsequent to taking title to the property, the Plaintiff subdivided the property ASM:pao:lmm 228067.4 (18414.001) 10/3/01 two separate lots. One of the lots consisted of approximately 27 acres upon which the Plaintiff intended to construct a mobile home park of approximately 70 units. 14. After property settlement, the Plaintiff for the first time discovered an easement in favor of the Cumberland-Franldin Joint Municipal Authority (the "Authority") to provide for public sewer lines at a raised elevation, 15. The sewer line easement was ereated pursuant to a Declaration of Taking filed by the Authority on February 10, 1978. This Declaration of Taking was filed with the Recorder of Deeds for Cumberland County in Deed Book Q-27, Page 419, and lists as condemnees Glenn L. and Mary E. Cr/der, predecessors in title to the property. This Declaration of Taking is attached as Exhibit "D," and included herein by reference, 16. The sewer line easement was not listed as one of the specific exceptions to coverage under the title insurance Commitment or Policy. 17. The Plaintiff inspected the property on at least two occasions, once at the public auction where he purchased the property, and another time to discuss a potential encroachment by a neighboring structure. The elevated sewer line easement was not visible during either of these inspections. 18. Plaintiffhad no knowledge of the elevated sewer line easement, as no buildings that existed on the property at the time of the Plaintiff's inspections utilized public sewer facilities. Rather, Plaintiff was informed that all buildings on the property utilized on-lot sewer systems. 19. As a direct result of the sewer lot easement, Plaintiff was unable to develop the property as a mobile home park. ASM:pao:lmm 228067.4 (18414.001) 10/3/01 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Complaint upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: Cynthia A. Clark, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102-5003 Date: / 0 ./~ ,2001 BLAKINGER, BYLER & THOMAS, P.C. By: (~( ~/(d2/~/~ J~mes H. Thomas, Esquire Attorney I.D. #19524 Aaron S. Marines, Esquire Attorney I.D. #85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff Exhibit A ALL that certain tract of land, together with the improvements thereon erected, lying and being situate in Southampton Township, Cumberland County, Perinsylv~n{a, more particularly described as follows: BEGINNING at a point in the said road; thence along the same, North seventy-one and one-fourth (71-1/4) degrees East, fifty-six and six tenths (56.6) perches to a point in said road; thence along the same, North fifty- seven and one-half (57-1/2} ~egrees EasE, twenty-nine and three tenths (29.3) perches to a stake; thence by land now or late of Commerer, South thirty-nine and three- fourths (39-3/4) degrees East, two hundred' three and eight tenths (203.8) perches to a post, a corner of lands now or late of Commerer and now or late of Foreman; thence by lands now or late of Goodhml-~, South fifty-two and one-half (52-1/2) degrees West, thirty a~d six tenths (30.6} perches to a stake; t. hence by lands now or late of Carey, South eighty-two end one-half (82-1/2} degrees West, seventy-three and ~wo tenths (73.2) perches to a stake; thence by land now or late of Hershey, North thirty (30) degrees 'West, ~wenty-five and four tenths (25.4) perches to a pos~; thence North one (1) degree Wests, twenty (20) perches to a copper stone; thence South fifty-one (51} degrees West, fo%~%-teen and five tenths (14.5) perches to a white oak in the public road leading from the Cleversbu-~ Junction to the Molly Pitcher Highway; thence along said road, North thirty and one-fourth (30-1/4) degrees West, fifty-seven and one tenth (57.1) perches to a point in said road; thence with the same, North thirty-five and one-fou~-th (35-1/4) degrees West, ninety (90) perches to the place of BEGINNI/qG. CONTA/NiNG 109 Acres, 110 perches. EXCEPTING AND RESER%~/NG therefrom the following tracts of land: (1) All that certain tract of l~nd conta4n{ng approximately 4.66 acres which was condemned and taken by the Commonwealth of P-~ylvania ~or highway purposes along Interstate ~oute 81. (2) Ail Chat certain tract of land containing 21.074 acres which David L. Miller end Dorothy B. Miller, (~a~e i of 3) Crider; thence by lands of the same, South thirty degrees fifteen (15} minutes EaSt, ~le hl~l~fTed twenty zero hundredths (120.00) feet to an iron pin, a corner of Lot No. 3; thence by Lot No. 3,. South fifty-~ine (59) degrees .fifteen (15) m{nut~s West, two hunzlre~ ninety and centerli~e of Township ~o~te No. 316; t.b~nce by the centerline of Township P~ute No. 316, Nore-h tM{try degrees fifteen (15) m~nutes West, eighty-six and zero hundredtb~ (86.00) feet to an existing s~.'.~.e; thence laong the same, North ~h~ (30) ~egrees flfteen minutes West, sixty-four amd zero hundredths {6{.00) feet to the point an~ place of BEGINNING. CO~TA~NING: 1.00 acre. BEING THE SAM~ ~EAL ESTATE which Glenn L. Crider and Mary E. ~.ri~er, husband and wife, by ~ed ~ated September 29, I986 an~ recorded in the Office of the Hecorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 'P", ~ol~me 32, Page 385, unto Ivan Z. Leid and Ellen M. Leid, husband and wife, the grantors herein. (PaE~ 3 of 3) Exhibit B AMERICAN LAND TITLE ASSOCIATION COMMITMENT -- 1966 C'HICAGO TITLE INSURANCE COMPANY COMMITMENT FOR TITLE INSURANCE CHICAGO TITLE INSURANCE COMPANY, a corporation of Missouri, herein called the Company, for a valuable consideration, hereby commits to issue its policy or policies of title i~aturance, as identified in Schedule A, in favor of the proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest covered hereby in the land described or referred to in Schedule A, upon payment of the premiums and charges therefor; all subject to the provisions of Schedules A and B and to the Conditions and Stipulations hereof. This Commitment shall be effective only when the identity of the proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A hereof by the Company, either at the time of the issuance of this Commitment or by subsequent endorsement. This Com.mitment is preliminary to the issuance of such policy or policies of title insurance and all liability and obligations hereunder shall cease and terminate six months after the effective date hereof or when the policy or policies committed for shall issue, whichever first occurs, provided that the failure to issue such policy or policies is not the fault of the Company. IN WITNESS WHEREOF, Chicago Title Insurance Company has caused this Commitment to be signed and sealed as of the effective date of Commitment shown in Schedule A, the Commitment to become valid when countersigned by an authorized signatory. Issued by: JOEL R. ZUI I ,TNGER HAMILTON C. DAVIS A PROFESSIONAL CORPORATION 200 CHAMBERSBURG TRUST BUILDIH~ CHAMBERSBURG, PA 17201 A Authorized Siltaaatory CI:tlCAGO TITLE ]I',IS~CE COM]'A_NY nt :~ By: ~ Policy or Policies to be issued: OWNER'S: ALTA 10-17-92 $ Proposed Insured: Gerald gberly SCHEQULE A 400,000.00 Number: 2281-S Effective Date: Proposed Insured: 2. The estate or interest in the land described or referred to in this Commitment and covered herein is a fee simple, and title thereto is at the effective date hereof vested in: Ivan Z. Laid and Ellen M. Lefd, h/w 3. The land referred to in the Commitment is described in Schedule C. SCHEDULE B -- Section 1 The following are the requirements to be complied with: Instrument(s) creating the estate or interest to be insured must be approved, executed and filed for record, to wit: A. Deed from Ivan Z. Leid and Ellen M..Leid, h/w to Gerald Eberl7. B. Mortga§e from Gerald E~erly to Leroy ~oover. ,.{2. Payment of the full consideration to, or for the account of, the grantors or mortgagors. - L3. Payment of all taxes, charges, assessments, levied and assessed against subject premises, which are due and · payable. ~. Satisfactory evidence should be had that improvements and/or repairs or alterations thereto are completed; that contractor, subcontractors, labor and materialmen are all paid. 5. County and township tax receipts for calendar year 1997 and school tax receipts for fisc~ year 1997-98 must ~e produced. The title policy will not.insure against possible future tax levies which are mot yet due and payable. Assessment. $27,270. 6. Water and sewer receipts to be produced for 1997 and elapsed portion of i998. 7. Proof that no sewers or other public improvements for which assessments are possible hay, been installed or have been ordered to be installed upon or abutting these premises. "8. Sufficient evidence to be produced to remove mortmage in original amount of $112,000 frm Ivan Z. Leid and Ellen M. Leid, h/w to York Farm ~redit, ACA, dated 5/22/96, recorded 5/23/96 in Cumberland County Mortgage Volume 1321, Page 986. SCHEDULE AJB - Section I Schedule e -- Section 1 Consists 6f 1 Pages. ALTA Corn mitment 0 0 0 ~O Reorder Form No. 2838 (Rev. 2/90) SCHEDULE B '--- SECTION 2 Number 2281-S REQUIREMENTS The following requirements must be met: Schedule B of the Policy or Policies to be issued will contain exceptions to the mat~ers noted hereafter unless the same are disposed of to the satisfaction of the Company. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment. 2. The exceptions set forth at the inside cover hereof. 3. The Owner's Policyissued pumuanther~o willcontain underScheduie B He mo~gage, ifan~ noted underltem I of ScheduleB--Se~ionl. 4. Rights of the public in and to the area within the right-of-way of public road know~ as Hershey Road abutting the premises. UNDER AND SUBJECT to terms and provisions of Subdivision Plan as to Tax Parcel #39-13-0104-004C; see Plan Book 41, Page 83. 00021 SCHEDULE B - Section 2 Schedule B -- Section 2 Consists of 1 Pages. ALTA Commitment ~ ~ Reorcier Form No. 2839 (Rev. 12/89) COMMITMENT Number 2281-S SCHEOUL; C The land referred to in this Commitment is described as follows: ALL that certain tract of land, together with the improvements thereon erected, lying and being situate in Southampton Township, Cumberland County, Pennsylvmn{a, more particularly described as follows: BEGINNING at a po{hr in ~he said road; thence along the same, North seventy-one and one-fourth (71-1/4) degrees East, fifty-six and six tenths (36.6) perches ~o a point in said road; thence along the same, North fifty- seven and one-half (37-1/2) degrees East, twenty-nine and three tenths (29.3) perches to a stake; thence by land now or late of Commer~r, South ~h4rty-~ine and three- fourths (39-3/4) degrees East, two hundred' three and eight tenths (203.8} perches to a post, a corner of lands now or late of Commerer and now or late of Foreman; thence by lands now or late of ~oo~hmrt, South fifty-two and one-half (52-1/2) degrees West, thirty and six tenths (30.6) perches to a stake; thence by lands now or late of Carey, South eighty-two and one-half (82-1/2) degrees West, seventy-three and ~wo tenths (73.2) perches to a stake; thence by lan~ now or late of Hershey, North thirty (30) degrees-West, twenty-five ~4 four tenths (25.4) perches to a post; ~hence North one (1) degree Wests, twenty (20) perches to a copper stone; thence South fifty-one (31) degrees West, fourteen and five tenths (14.3) perches to a white oak in the pLfolic road leading from the Cleversburg Junction to the Molly Pitcher Highway; thence along said r~ad, North thirty and one-fourth (30-1/4) degrees West, fifty-seven and one tenth (37.1) perches to a point in said road; thence with the same, North th4rty-five and one-foLLrth (35-1/4) degrees West, ninety (90) perches to the place of BEGINNING. CONTA/NING 109 Acres, 110 perches. EXCEPTING AND RESERVING therefrom the following tracts of land: (1) Ail that certain . tract of land containing approximately 4.66 acres whzch was condemned and taken by the Commonwealth of P-n~-ylvania for highway purposes along Interstate ~oute 81. (2) Ail ~hat certain tract of land containing 21.074 acres which David L. Miller and Dorothy B. Miller, (.~age i of 3) O002Z NI~ER,2281-~ SCHEDULE. ¢ (continued) husband and wife, by their deed dated September 9.7, 1965 and recorded in the Cumberland County Office of the Recorder of Deeds in Deed Book T, volume 9.1, Page 1086, granted and conveyed unto Sun Oil Company, a New Jersey corporation. BEING THE SAME PREMISES which David L. Miller and Dorothy B. Miller, husband and wife, ~y their deed ~ated December ~1, 1976 and recorded January 9.6, 1977 in the Recorder's Office aforesaid in Deed Book Z, Volume 9_6, Page 608, granted and conveyed unto Glenn L. Crider and Mary B. Crider, husband and wife, ~he Grantors herein. ALSO EXCEPTING AND Pd~SERVING therefrom the following tracts of land: (3) All that certain lot of land known as Lot No. 1 which Glenn L. Crider and Mary E. Crider, husband and wife, by their deed dated February 25; 1983 and recorded. February 28, 1983 in the Recorder's Office aforesaid in Deed Book B, Volume 30, Page 714, granted and conveyed unto Wesley R. Cool and Susan P. Cool, husband and wife. (4) Ail that certain lot of land known as Lot No. A which Glerin L. Crider and Mary E. C-rider, husband and wife, by their deed dated February 14, 1985 and recorded March 4, 1985 in the Recorder' s. Office aforesaid i~ Deed Book D, Volume 31, page 252, granted and conveyed unto Donald C. Snyder and T~tmf~ L. $~yder, husband and wife. (5) All that certain lot of land known as Lot No. 5 which Glenn L. Crider and Mary E. Crider, by their deed dated May 20, 1986 and recorded May 21, 1986 in the ~ecordar's Office aforesaid in Deed Book W, Volume 31, Page 1035, granted and conveyed unto David L. Varner. (6) Ail that certain lot of Fro=nd lyLng and being situate in the Township of Southampton, County of Cumberland and Commonwealth of P-~ylva~ia, known as Lot No. 9. as shown on the survey Drepared by Thomas Michael Englerth, R.S., dated September 16, 1981 for Glen~ L. and Mary E. Crider, said survey being r~corded in Plan Book ~1, Page 83, being more fully bounded and described as follows: Beginning at a spike set in t-he centerline of Township Route No'. 316 at the corner of Lot No. 1 on the above-mentioned survey; thence by Lot ~o. 1, North fifty- nine (59) degrees fifteen (15) m~nutes ,East, two hundred ninety and forty hundredths (290.40) feet to an iron pin set in line of lands now or late of Glenn L. and Mary B. (Page Z of 3) 00023 NIb~ER 2281-$ $C~ULE C (continued) Crider; thence by lands of ~he sam~, Sou~h ~hirty (30) degrees fifteen (15) minutes EaSt, one hundred twenty and zero hundredths (120.00) feet to an. ~ pin, a cor~er of Lot No..3.; thence ~ Lot No. 3,. South ~tf~¥~ .mine (59) degrees .fzfteenl (15) mizn/t~s Wes=, two h~zldred ~ety s_nd forty hundredths (290.A0) feet to a spike set in centerli, ne of Township Route ~o. 316; t~le~ce by the centerlzne of Township Route No. 316, North ~hirgy degrees fifteen (15} m{~,ltes West, eighty-six and zero hundredths (86.00) feet to a~ existing .spike; thence laong the same, North thirty (30) degrees fifteen (15) minutes West, sixty-four and zero h~ndredths (64.00) feet to the point and place of BEGINNING. CONTAINING: 1.00 acre. BEING THE SAME P~EAL ESTATE which Gl-nn L. Crider and Mary E. ~.rider, husband and wife, by deed date~ September 29, 1986 and recorded in the Office of t. he Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 'F", ~olume 32, Page 385, unto Ivan Z. Leid and Ellen M. Leid, husband and wife, the grantors herein. 00024 EXCEPTIONS The policy or policies to be issued will be subiect to the following exceptions unless they are other'wise disposed of: (1) rights or claims of parties in possession not shown by the public records; (2) encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey and inspection of the premises; (3) easements, or claims of easements, not shown by the public records; (4) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not, shown by the public records; (5) taxes or special assessments which are not shown as existing liens by the public records. CONDITIONS AND STIpUlATIONS 1. The term "mortgage," when used herein, shall include deed of trust, trust deed, or other security instrument. 2. If the proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof, and sha~l fail to disclose such knowledge to the Company in writing, the Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to the extent the Company is preiudiced by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien, encumbrance, adverse claim or other matter, the Company at its option may amend Schedule B of this Commit- ment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to parag~'aph 3 of these Conditions and Stipulations. 3. Liability of the Company under this Commitment shall be only to the named proposed Insured and such parties included under the definition of Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment. In no event shall such liabL1ity exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subiect to the insuring provisions, the Exclusions from Coverage and the Conditions and Stipulations of the form of policy or policies committed for in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4. Any action or actions or rights of action that the proposed Insured may have or may bring against the Company arising out of the status of the title to the estate or interest or the status of the mortgage thereon covered by this Commitment must be based on and are subiect to the provisions of this Commitment. 00025 00026 Exhibit C AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (10-17-92) 39 02~5 106 00000075 CHICAGO TITLE INSURANCE COMPANY SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. In Wimess Whereof, CHICAGO TITLE INSURANCE COMPANY has caused this policy to be signed and sealed as of Date of Policy shown in Schedule A, the policy to become valid when countersigned by an authorized signatory. · Issuedby: JOEL R. ZULLII~IGER HAMILTON C. DAVIS, · A Professional Corporation 310 Chambetsburg Trust Building Chambersburg, PA 17201 ALTA Owner's Policy (10-17-92) CHICAGO TITLE INSURANCE COMPANY By: By: 228~..-S 39 0215 106 00000075 ~ 11, ].998 1. Name of Insured: ~ ]~'1~' 2. The estate or interest in the land which is covered by this Policy m: Fee Simple 3. Title to the estate or interest in'the land is vested in the Insured. 4. The land herein described is encumbered by the following mortgage or trust deed, and assignments: 14Drt~aqe f~ C~sld l~erly to ~o~ Ik~vgr, ~a~ed May 8, 1998, recor~e~ ~ 11, 1998, in Ownherl~r~l Ouunty M~g'tgat~ Ikx~k Volume 1452, Page 406, in t~e ~ of $ ~01)~ GOo,O0 and the mortgages or trust deeds, if any, shown in Schedule B hereof. 5. The land referred to in this Policy is described as follows: See ~h~t at~ ~ OOOO4 SCHEDULE A Owners FOrm This Policy valid only If Schedule B Is attached. Reorder Form No. 3529 (Rev. 1/89) ! 39 0215 lOe O000007S Poflcy Number: SCHEI~LE B EXCEPTIONS FROM COVERAGE This po!!cy does not insura against loss or damage (and the Company will not pay costs, a~ttorneys' less or expenses) which ar~e by raasOn of: ~ Special Exceptions: The mortgage, if any, referred to in Item"4 of Schedule A. : 1. Rights of the public in and to the;.area within the right-of- ~ i..way .of ' public road known/as Hershey Road abutting the ~ 2 .~Under and' sub]e_ct..t~erms and provisions of subdivision plan ' ~o tax parce/l~9-13-0104-004C; see Plan Book 41, Page 83. 3. · Under~-a d sub]ect to Consentable Line Agreement dated May 7, 1998. General Exceptions: · Encroachments, overlaps, boundary line disputes and any other matters which would be disclosed by an accurate survey and inspect'ion of the premises. 2 o Easements or'claims of easements not shown as existing liens by the public records, Countersigned Amho~ze~ Signato~/ SCHEDULE B (ExTENDED COVERAGE) Schedule B of this .P. olicy consists o! pages. ~Owner's Form - 1987 Reorder Form No. 3097 (Rev. 1188) EXTRA COPY EXHIBIT ALL that certain tract of land, together with the improvements thereon erected, lying and being situate in Southa~,~m~on Township. Cumberland ~ounty, Pennsylvania, more particularly described as follows: BEGINNIN~ at a point in the said road; thence along the same, North seven,fy-one and one-fourth (71-1/4) degrees East, fifty-six and six tenths (56.6} perches to a point in said road; ~hence along the same, ~or~h fifty- seven and one-half ($7-1/2) d~grees ~ast, twenty-nine and three tenths (29.3) per~es to a stake; thence ~y land now or late of Commer~r, Sout, h ~-nine and three- fourths (39-3/4) ~-grees East, two hundred three and eight t~nths (20~.8) perches to a post, a corner of lands now or late of Commerer and now or late of .Foreman; thence by lands now or late of ~oodhar~, South ~.lfty-t.wo and one-half (52-1/2) de,tees West, ~hir~y and s~x tenths (30.6) perches to a stake; ~hence by lands now or late of Carey, South eighty-two and one-half (82-1/2) degrees West, seventy-three and two tenths (73.2) perches to a stake; t-hence by land now or late of Hershey, North thirty (30) de,tees 'West, ~wenty-five and four tenths (25.4} perches to a post; thence North one (1) degree Wests, twenty (20) perches to a copper stone; thence South fifty-one (51) degrees West, fourteen and five tenths (14.5) perches to a white oak in the public road leading from the Cleversburg Junction to the Molly Pitcher Highway; thence along said road, North thirty and one-fourth (30-1/4) degrees West, fifty-seven and one tenth (57.1) perches to a point in said road; thence with the same, North thirty-five and one-fourth (35-1/4) degrees West, ninety (90) perches to the place of BEGINNING. CONTAINING 109 Acres, 110 perches. land:EXCEPTING AND RESERVING therefrom the following tracts of (1) All that certaii1 tract of land containing approximately 4.66 acres which was condemned and taken by the Commonwealth of Pennsylvania for highway purposes along Interstate Route 81. (2) Ail that certain tract of land containing 21.074 acres which David L. Miller and Dorothy B. Miller, (?a~e I of 3) 00006 NU~ER 2281-S SCHEDULE C (continued) husband and wife, by their deed dated September 27, 1965 and recorded in the Cumberland County Office of the Recorder of Deeds in Deed Book T, Volume 21, Page 1~86, granted and conveyed uzxto Sun oil Company, a New jersey corporation. BEING THE SAME PREMISES which David L. Miller and Dorothy B. Miller, husband and wife, by their deed dated December 31, 1976 and recorded January 28, 1977 in the Recorder's Office aforesaid in Deed Book Z, Volume 26, Page 608, granted and conveyed unto Glenn h. Crider and Mary E. Crider, husband and wife, the Grantors herein. ALSO EXCEPTING AND RESERVING therefrom the following tracts of land: {3) All that certain lot of land known as Lot No. 1 which Glenn h. Crider and Mary E. Crider, husband and wife, by their deed dated February 25, 1983 and recorded. February 28, 1983 in the Recorder's Office aforesaid in Deed Book B, Volume 3~, Page 714, granted and conveyed unto Wesley R..Cool and susan P- Cool, husband and wife. (4) All that certain lot of land known as Lot No. 4 which Glenn L. Crider and Mary E. Crider, husband and wife, by their deed dated February 14, 1985 and recorded March 4, 1985 in the Recorder' s Office aforesaid in Deed Book D, Volume 31, page 252, granted and conveyed ~nto Donald C. Snyder and Tammy L. snyder, husband and wife. (5) All that certain lot of land known as Lot No. 5 which Glenn L. Crider and Mary E. Crider, by their deed dated May 20, 1986 and recorded May 21, 1986 in the Recorder's Office aforesaid in Deed Book W, Volume 31, Page 1035, granted and conveyed unto David b. Varner. (6) All that certain lot of 9~ound lying and being situate in the Township of Southampton, County of Cumberland and Commonwealth of P-nnsylvania, known as Lot No. 2 as shown on the suxwey prepared by Thomas Michael Englerth, R.S., dated September 16, 1981 for Glenn L. and Mary E. Crider, said survey being recorded in Plan Book 41, Page 83, being more fully bounded and described as follows: Beginning at a spike set in the centerline of Township Route No. 316 at the corner of Lot No. I on the above-mentioned survey; thence by Lot No. 1, North fifty- nine (59) degrees fifteen (lS} minutes East, two hundred- ninety and forty hundredths (290.40) feet to an iron pin set in line of lands now or late of Glenn L. and Mary E. NIR4BEK 2281-S SCheDULE C (continued) Crider; thence by lands of the same, South thirty (30) degrees fifteen (15) minutes East, one h%~ndred twenty and zero hundredths (120.Q0) feet to an iron pin, & corner of Lot No. 3; thence by Lot No. 3,. South fifty-nine degrees fifteen (15} minutes Wes=, ~wo hundred ninety and forty .hundredths (29Q.40) ~ee= to a spike set in the centerl~ne of Township Route No. 316; thence by the centerline of Township Houte No. 316, Noz~ch thirty (30) degrees fifteen (15) mt,utes West, eighty-six and zero hundredths (86.00) feet to an existing spike; thence laong the same, North ~h{rby (30) degrees fifteen (15) minutes West, sixty-four and zero hundredths (64.00) feet to the point and place of BEGINNING. CONTAINING: 1.00 acre. BEING THE SAME PEAL ~STATE which ~1-'~- L. Crider and Mary E. ~.rider, husband and wife, by dsed dated September 29, 1986 and recorded in the O.ffice of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book "F", Volume 32, Page 385, unto Ivan Z. Leid and Ellen M. Leid, husband and wife, the ~rantors herein. ALSO BEING the same real estate which Ivan Z. Leid and Ellen M. Leid, husband and wife, by deed dated May 8, 1998 and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book Volume 177 Page i, conveyed unto Gerald Eberly. (Page 3 of 3) 00008 Exhibit 00027 Paul B, Karper and .J 00028 f m~'(~27 ~;~ 422, 00030 'ti' ~,' ... · :.~ .~ t' 00031 00032 00034 -?~/ ~l,*?. ~. "~,~ . , . ;.~..~'.. ..~ .. Exhibit E February 9, 1999 (717) 399-2267 Chicago Title Insurance Comloany c/o Joel R. Zullinger Hamilton C. Davis A Professional Corporation 200 Cha_mbersburg Trust Building Chambersburg, PA 17201 Gentlemen: Re: Ctu'cago Title I~surance Title Coriu~itrnent No. P_2gl-S Owner's Po]icy ALTA 10-17-92 Issued to Gerald Eberly Effective Date: 5/18/98 We represent Gerald Eberly. Please consider this to be a claim against the above-listed Title Insurance Policy on behalf of Mr. Eberly. The facts giving rise to this claim are as follows: The Chicago Title Insurance Commitment and Owner's Policy ("the Policy") were issued to Gerald Eberly on May 18, 1998 in connection with his purchase of a farm in Southampton Township, Cumberland County owned by Ivan Z, Leid and Ellen M. Leid. Based on the Report of Title and the Policy that was issued, two rights-of-way, the existence of which have caused Mr. Eberly substantial damages, were not noted. First, the Adams Electric Company claims to have a thirty (30) foot wide easement running through the middle of the property in a north/south direction. Secondly, on the eastern side of Hershey February 9,1999 Page 2 Road the Municipal Authority claims a 25-foot wide sanitary sewer easement. Neither the Title Comn~trnent nor the Policy contain any information concerning either of these interests. We are in the process of reviewing this matter and documenting Mr. Eberly's damages. Please refer this matter to the appropriate individual so that we may discuss ways to amicably resolve it. Failing that, we have been authorized to take whatever action is necessary to protect our client's rights. I look forward to hearing from a title company representative within ten (10) days of the date of this letter. Yours truly, BLAKINGER, BYLER & THO~, P.C. James H. Thomas JHT:ml cc: Mr. Gerald Eberly Exhibit F KJ~EHR, HARRISON, HARVEY, BRANZBURG & ELLERS L~ James H. Thomas, Esquire Blakinger, Byler & Thomas, P.C. 28 Penn Square Lancaster, PA 17603 AYTOP,~Ey$ AT LAW' (215) 568-6060 FAX~ (215) 568-660~ April 7, 1999 EMILY M. CLAY* JOSEPH O. GIBBONS* GARY L. LOZOFF* IvflNDY FRIEDMAN* CYNTH1A A. ~ Direct Dial: (215) 569-3177 J. SREEK s~rH~ Chicago Title Insurance Company Policy No.: 39 0215 106 00000075 Insured: Gerald~Eberly Dear Mr. Thomas: Tnis faro had been retained by Clficago Title hmurm~ce CompmO, ("Chicago Title") to investigate and review the claim asserted by Gerald Eberly against Chicago Title pmportedly under the above-referenced title insurance policy (the "Policy"). The claim is outlined in your February 9, 1999, letter to Diane McGowan of Chicago Title. This letter serves to apprise you of the current status of our investigation based upon the review of the facts thus far available to us and to request that you provide us with additional information to further assist us with our ongoing investigation. By letter dated February 9, 1999, you notified Chicago Title that Mr. Eberly has a potential claim against Chicago Title purportedly arising out of the existence of two rights-of-way over the Property. Mr. Eberly asserts that these two rights-of-way were not disclosed in either the Policy or. the title commitment ("Commitment"). One of the rights-of-way is an easement in favor of Adams PH1LI\182505q KLEHR, HARRISON, HARVEY, BRANZBURG & ~ ~, James H. Thomas, Esquire April 7, 1999 Page 2 Electric Company (the "Electric Easement"), and the other is an easement for a sewer line operated by the Cumberland Franklin Joint Municipal Authofity (the "Sewer Line Easement"). Base upon our review of the relevant conveyancing documents, Mr. Eberly obtained his interest in the Property through the following chain of title. By deed dated April 3, 1945, and recorded in the Office.of the Recorder of Deeds of Cumberland County at Deed Book 12-Y, Page 211, Daysie Zimmerman, et al., conveyed and granted a fee interest in the Property to Joseph L. Miller, Joseph L. Miller died on August 14, 1945, and by subsequent settlement and release in his estate duly recorded in the Office of the Recorder of Deeds of Cumberiand County at Miscellaneous Book 103, Page 55, the Property was conveyed in fee to Elizabeth M. Millard, daughter of Joseph L. Miller. By deed dated September 1, 1964, and recorded October 8, 1964, in Deed Book J, Volume 21, Page 657, in the Office of the Recorder of Deeds of Cumberland County, Elizabeth M. Millard and Edward R. Millard granted and conveyed a fee interest in the Property to David L. Miller and Dorothy B. Miller, husband and wife (the "Millers"). By deed dated December 31, 1976, and recorded January 26, 1977, at Deed Book Z, Volume 26, Page 608, in the Office of the Recorder of Deeds of Cumberland County, the Millers granted and conveyed to Glenn L. Crider and Mary E. Crider, husband and wife (the "Criders"), a fee interest in the Property. By deed dated September 29, 1986, and recorded in the Office of the Recorder of Deeds of Cumberland County at Deed Book F, Volume 32, Page 385, the Criders granted and conveyed a fee interest in the Property to Ivan Z. Leid and Ellen M. Leid, husband and wife (the "Leids"). By deed dated May $, 1998, and recorded in the Office of the Recorder of Deeds of Cumberland County, the Leids conveyed and granted a fee interest in the Property to Mr. Eberly. The Cumberland-Franklin Township Joint Municipal Authority filed a Declaration of Taking (the "Declaration"), pursuant to which easements for'server pm'poses (~numping stations), i.e., the Sewer Line Easement, were condemned in several land holdings in Cumberland County, including the Property, which at that time was owned by the Cfiders. The Declaration was recorded in the Office of the Recorder of Deeds of Cumberland County at Deed Book Q27, Page 419, on February 10, 1978. At this point and based upon the information thus far made available to us, it is uncertain how or when the Eleclric Easement came into existence. There may not be a recorded right-of-way for the Electric Easement. It is also possible that a right-of-way was conveyed to a predecessor of Adams Electric Company, and, additionally, that the fight-of-way is not readily identifiable as being applicable to the Property. Prior to 1976 and back into the early part of the 20th Century, the Miller family owned the Property as well as a substantial amount of the land surrounding the Property. The Miller family's land holdings were passed down through the Miller family by various deeds and PHILI\182505-1 KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS James H. Thomas, Esquire April 7, 1999 Page 3 wills. The previous configurations of the Miller family's land holdings are not consistent with the present configurations of the Property and the surrounding land, thereby causing the difficulty in determining the applicability of the Electric Easement to the Property. The Elecla'ic Easemem may have been conveyed so far back that it is difficult, if not impossible, to determine whether it applies to the Property. We are continuing our investigation into the origins of the Electric Easement. Since-the time that Mr2 Eberly acquired the Property, two surveys have been made of the Property, both of which plainly disclose the Electric Easement and the Sewer Line Easement. John M. Huck prepared a Boundary Survey of C, erald Eberly Property dated July 28, 1998 (the "Boundary Survey"). Fisher Engineering, Inc., prepared the Final Plan for Gerald Eberly Subdivision survey dated August 4, 1998 (the "Subdivision Plan"). Based upon our review of this matter thus far, we believe that the following provisions of the Policy may be applicable. The Exclusions from Coverage provision of the Policy provides that [t]he following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorney's fees or expenses which arise by reason of: 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; Co) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; [or] (c) resulting in no loss or damage to the insured claimant Schedule B of the Policy, entitled Exceptions from Coverage, states that PHILI\I82505q KLEHR, HARRISON, HARVEY, BRANZBURG & ELLER~ LLP James H. Thomas, Esquire April 7, 1999 Page 4 It]his policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. Encroachments, overlaps, boundary line disputes and any other matters which would be disclosed by an accurate survey and inspection of the premises. 2. Easements or claims of easemants not shown as existing liens by the public records. In order for us to proceed with our investigation, please provide us with the following information: · Proof of damages claimed by Mr. Eberly. · The dates and times Mr. Eberly inspected the Property prior to closing on the agreement of sale for the Property. · Whether Mr. Eberly, or anyone acting on his behalf, ever observed telephone poles on the Property and when he, or anyone acting on his behalf, first observed such telephone poles. · If Mr. Eberly, or anyone acting on his behalf, observed telephone poles on the Property, whether he, or ,~,qyone acting on his behalf, questioned anyone regarding such telephone poles, who they questioned, when they conducted the questioning, and the responses they received. · Whether Mr. Eberly, or anyone acting on his behalf, has any documents evidencing the existence of the Eleclric Easement. · Whether Mr. Eberly, or anyone acting on his behalf, ever observed any evidence of the Sewer Line Easement on the Property and when he, or anyone acting on his behalf, first observed such evidence of the Sewer Line Easement. · If Mr. Eberly, or anyone acting on his behalf, observed any evidence of the Sewer Line Easement on the Property, whether he, or anyone acting on his behalf, pHILl\I82505-1 ~LEHR, HARRISON, ~IARVEY, BRANZBURG & ELLEP~ ~LP James H. Thomas, Esquire April 7, 1999 Page 5 questioned anyone regarding such evidence of the Sewer Line Easement, who they questioned, when they conducted the questioning, and the responses they received· Whether any of the buildings or slructures, including Mr. Eberly's house, on the Property are hooked up to a sewer line. ~nether the parties who sold the Property to Mr. Eberly, or their agents, disclosed that there was a public sewer on the Property rather than a septic or other type of waste system. We would also like permission from Mr. Eberly to contact John M. Huck and Fisher Engineering, Inc. to obtain additional information regarding the Boundary Survey and the Subdivision Plan, including, but not limited to, how the exact location of the Sewer Line Easement and the Electric Easement were set. Chicago Title intends to fully investigate this matter prior to making its determination as to whether Mr. Ebefly's claims are covered under the Policy. Paragraph 4 of the Conditions and Stipulations section of the Policy, entitled Defense and Prosecution of Actions; Duty of Insured Claimant to Cooperate, provides that The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable thereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (c) ·.. Whenever requested by the Company, the insured, at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining wimesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be PHILI\I82505-1 t(LEHR, HARPdSON, HARVEY, IBRANZBURG & ELLERS LU' James H. Thomas, Esquire April 7, 1999 Page 6 necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligations to defend, prosecute, or continue the.litigation, wi~h regardto the matter or matters requiring such cooperation. Chicago Title Intends to diligently investigate this matter, and looks forward to Mr. Eberly's cooperation in doing so. CAC:dt cc: Diane McGowan, Esquire Michael K. Coran, Esquire Thank you for your attention to this matter, and please feel fi~ee to contact me if you have any questions. This letter is written subject to and without waiver of any and all defenses available under or otherwise. the Policy at lawV/~/.. tmly yours,~ /n I ~ C~'ai. Clark PHILI\182505-I Exhibit G December 15, 1999 (717) 509-7267 e-mail: jhlbbt~ptd,net Cynthia A. Clark, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102-5003 Ctffcago Title Insurance Company Policy No. 39 0215 106 000 00075 Insured' Gerald Hberly Dear Ms. Clark: This responds to your recent correspondence and request for information. I will respond to your requests in the order that they were made in the letter. These responses are prelLrninary and are not intended to state Mr. Eberly's complete legal position on this claim. 1. Proof of damages claimed by Mr. Eberly. Response: Because of the existence of the above~round sewer line along the road frontage to the property, Mr. Eberly will be Prevented from anything other than Iow density development el tho Pact. For example, if the property was subcb'vided for single-family lots, the fact that it has only one access point would prevent a street or cul- de-sac from being built that would exceed 800 feet in length. Because of the localion of ttu's cul-de-sac, the lot conb'guratinn requirements oi the Southampton To wnstffp Subdivision and Land Development Ordinance would lirm't the number of residenHal lots to two orpossibly three. Ifa second access was avaiIab]e, a loop sPeet could be constructed and the Pact could be fully developed for residential purposes. Mr. £berly initially contemplated December 15, 1999 Page 2 developing a mobile home park on the prop~. The tract of land adjoinsanexistingmob~lehomepark. Tlffsisprobablythelffghest and best use for the property, We are in the process of obtadrdng appraisals for these various uses and will provide them when we receive them. 2. The dates and times Mr. Eberly inspected the property prior to closing on the Agreement of Sale. Response: Mr. Eberly was on the property the date o£ the public auction when hepurchased it. Between then and the date of setNement he visited the property r~dth a locai engineer to discuss the possibility of developing a mobile home park. The engineer's prellnffnary response was that it would be possible. On the date scheduded for settlement, Mr. £berly went to the law or'ce of the seller's attorney, but learned that there was a problem rvith one of the boundary lines, SpecLffcally, the seller had expanded a concrete pad at his barn which apparently encroached on the neighbor's property. This was discovered pr~or to settlement and Mr. Eberly declined toproceed to selNement r4dth this issue outstanding. I-Ie recalls d~ving to theproperty on that date and simply stopping to ]ook at it. 3. Whether Mr. Eberly, or anyone acting on his behalf, ever observed telephone poles on the property and when he, or anyone acting on his behalf, first observed such poles. Response: The telephonepoles are visible. Mr. £berly observed them when he was on the property the first time. 4. If Mr. Eberly, or anyone acting on his behalf, observed telephone poles on the property, whether he, or anyone acting on his behalf, questioned anyone regarding such telephone poles, who they questioned, when they conducted the questioning, and the responses they received. Response: The telephone poles run aiong the edge of the property and the public road. Mr. Eberly viewed this as a common situation and was not concerned about it. December 15, 1999 Page 3 5. Whether Mr. Eberly, or anyone acting on his behalf, has any documents evidencing the existence of the electric easement. Response: Please refer to the title report and the survey, both o£ wtu'ch have previously been provided. 6. Whether Mr. Eberly, or anyone acting on his behalf, ever observed any evidence of the sewer line easement on the property and when he, or anyone acting on his behalf, first observed such evidence of the sewer line easement. Response: Mr. gberly never observed any visible sewer line easement on the property. He was only made aware o£ the easement after he subdivided the property into two parceIs and was advised of its existence and location by the local water and sewer authority. 7. If Mr. Eberly, or anyone acting on his behalf, observed any evidence of the sewer line easement on the property, whether he, or anyone acting on his behalf, questioned anyone regarding such evidence of the sewer line easement, who they questioned, when they conducted the questioning, and the responses they received. Response: Mr. Eberly never observed any evidence of the sewer line easement on the properly. 8. Whether any of the buildings or structures, including Mr. Eberly's house, on the property are hooked up to a sewer line. Response: None o£ the buildings or structures are connected to the public sewer line. They are all served by on-lot sewage disposal systems. 9. Whether the parties who sold the property to Mr. Eberly, or their agents, disclosed that there was a public sewer on the property rather than a septic or other type of water system. December 15, 1999 Page 4 Response: The seller disclosed that the property was served b? public sewage. You also requested permission from Mr. Eberly to contact John M. Huck and Fisher Engineering to obtain additional information regarding the boundary survey and the subdivision plan. Mr. Eberly declines to grant that permission since he has already provided you with all of the documentation from both Mr. Huck and Fisher Engineering. If you have specific questions, please direct them to Mr. Eberly through me. Yours truly, BLAKDVG£R~ BYLER & ZI-IO~ P. C. ]HT:rnl cc: Mr. Gerald Eberly James II. Thomas To: Gerald Eberly You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or judgment may be entered against you. KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP Michael K. Coran (55876) Brett D, Feldman (82689) 260 S. Broad Street Philadelphia, PA 19102-5003 (215) 568-6060 Attorneys for Defendant Chicago Title Insurance Company GERALD EBERLY Plaintiff, VS. CHICAGO TITLE INSURANCE COMPANY Defendant. Court of Common Pleas Cumberland County Civil ActionNo. CI-01-714 ~ANSWER WITH NEW MATTER Defendant, Chicago Title Insurance Company ("Chicago Title") through its attorneys Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, responds to the Complaint filed by plaintiff, Gerald Eberly as follows: 1. Denied. Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph, and, on this ground, denies the allegations and requires strict proof of them. 2. Admitted. 3. Denied. Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph, and, on this ground, denies the allegations and requires strict proof of them at the time of trial. By way of further answer, the allegations in this paragraph constitute conclusions of law to which no response is required. 4. Denied. Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph, and, on this ground, denies the allegations and requires strict proof of them. By way of further response the documents identified in plaintiff s complaint and attached thereto as Exhibit "A" are writings which speak for themselves. 5. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. By way of further answer, the documents identified in plaintiff' s complaint and attached thereto as Exhibit "B" are ~witings which speak for themselves. 6. Admitted on information and belief. By way of further response, the Title Insurance Policy identified in plaintiff's complaint and attached thereto as Exhibit "C" is a writing which speaks for itself. 7. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations, and, on this ground, denies the allegations and requires strict proof of them. 8. The documents identified in plaintiff's complaint and attached thereto as Exhibit "B" are writings which speak for themselves. 9. Denied. The allegations in this paragraph constitute conclusions of laws to which no response is required. By way' of further answer, see Chicago Title's response to Paragraph 8. 10. 11. 12. See Chicago Title's response to Paragraph 8. See Chicago Title's response to Paragraph 8. See Chicago Title's response to Paragraph 8. 13. Denied. Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph, and, On this ground, denies the allegations and requires strict proof of them. 14. Denied. Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegation in this paragraph, and, on this ground, denies the allegations and requires strict proof of them. 15. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. By way of further answer, the documents identified in plaintiff's complaint and attached thereto as Exhibit "D" are writings which speak for themselves. 16. The Title Insurance Commitment and the Title Insurance Policy (Exhibits "B" and "C" respectively), are writings which speak for themselves. 17. Denied. Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph, and, on this ground, denies the allegations and requires strict proof of them. 18. Denied. Chicago Title is without knowledge or infbrmation sufficient to form a belief as to the truth of the allegations in this paragraph, and, on this ground, denies the allegations and requires strict proof of them. 19. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations, and, on this ground, denies the allegations and requires strict proof of them. 20. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or intbrmation sufficient to form a belief as to the truth of the allegations, and, on this grounds, denies the allegations and requires strict proof of them. By way of further answer, it is specifically denied that the value of the subject property "without the PHIL 1: 422691-1 easement was approximately $800,000" and that the "value of the property with the easement and resulting limitations on subdivision is approximately $400,000." 21. Denied as stated. By way of further response, the letter identified in plaintiff s complaint and attached thereto as Exhibit "E" is a writing which speaks for itself. 22. Admitted. By way of further response, the letter identified in plaintiff s complaint and attached thereto as Exhibit "F' is a writing which speaks for itself. 23. Denied. It is specifically denied that plaintiff provided all of the information that was required pursuant to defendant's April 7, 1999 letter. By way of further response, the letter identified in plaintiffs complaint and attached thereto as Exhibit "G" is a writing which speaks for itself. 24. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title avers that it has, in fact, made no final determination with respect to Plaintiffs claim against the Policy. COUNT 1 BREACH OF CONTRACT 25. Chicago Title incorporates by reference herein each and every response to the allegations of the complaint as if set forth at length. 26. Admitted on information and belief. 27. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations, and, on this ground, denies the allegations and requires strict proof of them. 28. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations, and, on this ground, denies the allegations and requires strict proof of them. 29. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations, and, on this ground, denies the allegations and requires strict proof of them. By way of further answer, it is specifically denied that plaintiff has suffered damages in the amount of $400,000.00. 30. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations, and, on this ground, denies the allegations and requires strict proof of them. 31. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title avers that it has, in fact, made no final determination with respect to Plaintiff's claim against the Policy. WHEREFORE, defendant, Chicago Title Insurance Company demands judgment in its favor and against plaintiff, together with costs of suit, attorney fees and any such relief as the Court deems appropriate. COUNT II BAD FAITH BY INSURER 32. Chicago Title incorporates by reference herein each and every response to the allegations of the complaint as if set forth at length. 33. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. To the extent the allegations are deemed to be factual in nature, Chicago Title is without knowledge or information sufficient to form a belief as to the truth of the allegations, and, on this ground, denies the allegations and requires strict proof of them. 34. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. By way of further answer, it is specifically denied that Chicago Title has ever denied plaintiff coverage under the subject policy and commitment. Instead, Chicago Title has simply requested that plaintiff provide it with certain information necessary in order to reach a decision as to whether plaintiff is entitled to benefits under the subj eot title insurance. Until plaintiff provides such requested information, Chicago Title still cannot make such a determination. 35. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. By way of further answer, it is specifically denied that Chicago Title "knew or recklessly disregarded its lack of a reasonable basis in denying the Plaintiff's claim." Instead, see Chicago Title's response to Paragraph 34. 36. Denied. The allegations in this paragraph constitute conclusions of law to which no response is required. By way of further answer, 42 Pa. C.S.A. § 8371 is a writing which speaks for itself. WHEREFORE, defendant Chicago Title Insurance Company demands judgment in its favor and against plaintiff, together with costs of suit, attorney fees, and any such other relief as the Court deems appropriate. NEW MATTER 37. Plaintiff's claims are barred by Plaintiff's unclean hands. 38. Plaintiff's Complaint fails to state a claim upon which relief may be granted. 39. Plaintiff's claims are barred, wholly or in part, by its failure to mitigate any damages to which it may be entitled. 40. Plaintiff's claims are barred by the doctrines of laches, waiver and/or estoppel. 41. Plaintiff's claims are barred because it has suffered no damages. 42. Plaintiff's claims are not ripe and are premature. 43. Plaintiff's claims are barred because plaintiff purchased the subject property with actual and/or constructive notice of the sewer line easement. 44. Plaintiff's claims are barred because plaintiff's claim for indemnity is not covered under the terms of the subject policy. 45. Defendant has, at all times, acted reasonably, diligently and in good faith in its dealings with plaintiff. WHEREFORE, defendant, Chicago Title Insurance Company demands judgment it is favor and against plaintiff, together with costs of suit, interest, attorney fees and any such relief as the Court deems appropriate. Dated: October 23, 2001 KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: Michael K. Coran Brett D. Feldman 260 S. Broad Street Philadelphia, PA 19102-5003 Attorneys For Defendant Chicago Title Insurance Company PHil. l: 422691-I VERIFICATION I verify that the statements made in the foregoing Answer with New Matter are true and correct. This verification is made subject to the penalties of 18 Pa., C.S.A. § 4904, relating to unswom falsification to authorities. Brett D. Feldman Dated: October 23, 2001 CERTIFICATE OF SERVICE I hereby certify that I served on the 23rd day of October the foregoing Answer with New Matter upon the person and in the manner indicated below, which service satisfies the requiremems of the Pennsylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: James H. Thomas, Esquire Aaron S. Marines, Esquire 28 Penn Square Lancaster, PA 17603 (717) 299-I 100 Attorneys for Plaintiff Brett D. Feldman ASM:slb:lrnm 246614.1 ( 18414,001 ) 12/3/0t 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY Plaintiff VS. CHICAGO TITLE INSURANCE COMPANY Defendant CI-01-714 PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER Plaintiff, Gerald Eberly ("Ebefly") tl'u'ough his attorneys, Blakinger, Byler & Thomas, P.C. responds to the Defendant, Chicago Title Insurance Company ("Chicago Title") New Matter as follows: 37-40. Denied as conclusions of law to which no response is required. 41. Denied. As the direct result of Chicago Title's failure to discover the sewer line easement encumbering the property, Eberly has suffered damages in the amount of $400,000.00, which sum represents the diminution in value of the property between the title insured by the Chicago Title and the title actually received by Eberly. 42. Denied as a conclusion of law to which no response is required. 43. Denied. Eberly had no actual or constructive knowledge of the elevated sewer line easement encumbering the property. By way of further explanation, the Plaintiff did not and could not have known of the existence of an elevated sewer easement by their visual inspection of the property. Strict proof is demanded at the time oftriai. 44. Denied as a conclusion of law to which no response is required. To the extent a ASM:sfb:lrnm 246614.1 ( 18414.001 ) 12/3/01 response is required, the averment is denied. Paragraph 2 of the title insurance policy insures a fee simple interest in the property conveyed to Eberly. The easement or encumbrance on the property by the elevated sewer line easement is not listed by the title insurance policy as an exception to coverage. As a result, the title insurance policy indemnifies Eberly for the diminution in value caused by the easement. Strict proof is demanded at trial. 45. Denied as a conclusion of law to which no response is required. WHEREFORE, Plaintiff, Gerald Eberly respectfully requests that the Defendant's New Matter be denied, and judgment entered in favor of the Plaintiff. Respectfully submitted, BLAK1NGER, BYLER & THOMAS, P.C. Aaron S. Marines, Esquire Attorney I.D. #85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff ASM:slb:lmm 246614.1 ( 184t4.001 ) 12/3/01 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Response to Defendant's New Matter upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: Brett D. Feldman, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Dated: I ~/~5 ,2001 BLAK/NGER, BYLER & THOMAS, P.C. Aaron S. Marines, Esquire Attorney I.D. #85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff GERALD EBERLY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW Plaintiff, VS. CHICAGO TITLE INSURANCE COMPANY Defendant. CI-01-714 DEFENDANT CHICAGO TITLE INSURANCE COMPANY'S MOTION TO COMPEL PLAINTIFF'S ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS Defendant, Chicago Title Insurance Company ("Chicago Title"), by its counsel, hereby moves the Court for an Order pursuant to Pa. R.C.P. 4019 compelling plaintiff Gerald Eberly ("Eberly") to respond fully and completely to Chicago Title's Interrogatories and Request for Production of Documents as follows: This action was commenced on February 5, 2001 by the filing of a Writ of Summons. 2. 3. On October 3, 2001, Eberly filed a Complaint. On April 2, 2002, Chicago Title served a First Set of Interrogatories on Eberly. Pursuant to the Pennsylvania Rules of Civil Procedure, Eberly's answers and/or objections were due on or before May 2, 2002. A copy of the April 2, 2002 Interrogatories is attached as Exhibit A. 4. On April 24, 2002, Chicago Title served a First Request for Production of Documents on Eberly. Pursuant to the Pennsylvania Rules of Civil Procedure, Eberly's response and production of documents were due no later than May 24, 2002. A copy of the April 24, 2002 Request for Production of documents is attached as Exhibit B. 5. On May 8, 2002, Eberly requested and Chicago Title granted in writing an extension to respond to all discovery requests until May 29, 2002. A copy of the May 8, 2002 letter is attached as Exhibit C. 6. On June 5, 2002, Eberly was given notice, in writing, that its discovery responses were due no later than June 13, 2002. A copy of the June 5, 2002 letter is attached as Exhibit D. 7. On June 26, 2002, Eberly was given notice via telephone that Chicago Title would file a Motion to Compel Discovery Responses unless discovery responses were immediately provided. In response, counsel for Eberly could not provide a date that discovery responses would be forthcoming. 8. To date, Eberly has failed to respond to the discovery requests of Chicago Title. 9. The Interrogatories and Request for Production of Documents are relevant and/or are reasonably calculated to lead the discovery of admissible evidence. 10. Chicago Title therefore requires an Order of this Court, pursuant to Pa. R.C.P. 4019, compelling Eberly to serve answers to its First Set of Interrogatories and Request for Production of Documents and to produce all requested documents therein within ten (10) days of the Court's Order. PHiLI: 464274-1 WHEREFORE, defendant Chicago Title Insurance Company respectfully requests that the Court enter an Order, in the form attached hereto, that plaintiff Gerald Eberly serve answers to the discovery requests and produce all requested documents therein within ten (10) days of the date of the Order. KLEHR, HARRISON, HARVEY BRANZBURG & ELLERS LLP Dated: (~/~{02. By: Michael K. Coran, Esquire Brett D. Feldman, Esquire 260 South Broad Street Philadelphia, PA 19102 Attorneys for Defendant Chicago Title Insurance Company Exhibit A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY Plaintiff VS. CHICAGO TITLE iNSURANCE COMPANY Defendant CI-01-714 DEFENDANT CHICAGO TITLE INSURANCE COMPANY'S FIRST SET OF INTERROGATORIES DIRECTED TO PLAINTIFF GERALD EBERLY Defendant Chicago Title Insurance Company ("Chicago Title"), by and tl~rough its undersigned counsel, hereby directs the following interrogatories to Plaintiff Gerald Eberly to be answered under oath pursuant to Rule 4006 of the Pe~msylvania Rules of Civil Procedure. I. DEFINITIONS A. "You," "your," and "Plaintiff' means Plaintiff Gerald Eberly and all of his predecessors, successors, affiliates, attorneys, agents and/or representatives, both present and fon~er, and all other persons acting or purporting to act on his behalf. B. "Documenf' or "documents" shall mem~ any written, recorded, computer generated, fihiaed or graphic matter, whether performed or reproduced on paper, cards, tapes, film, electric facsimile, electronic mail, World Wide Web pages, computer code, coded computer files, computer storage devices, or any other media, including but not limited to papers, books, letters, photographs, tapes, disks, magnet storage media, compact disks, optical storage media, objects, tangible things, correspondence, telegrams, cables, telex messages, memoranda, notes, notations, records, work papers, transcripts, minutes, reports and recordings of telephone or other conversations, or of interviews, or of conferences, or of meetings, affidavits, statements, charts, graphs, specifications, drawings, blueprints, summaries, opinions, proposals, reports, studies, analyses, audits, evalu, ations, contracts, agreements, journals, statistical records, ledgers, books of account, bookkeeping entries, financial statements, tax returns, vouchers, checks, check stubs, invoices, receipts, desk calendars, appointments books, information stored in a personal digital assistant (PDA), diaries, lists, tabulations, summaries, sound output, microfilms, all records kept by electronic, photographic or me'chanical means, and all things similar to any of the foregoing documents is referred to, the reference shall include, but not be limited to, the original and each and every copy and draft thereof differing in any way from the original, if an original exists, or each and every copy m~d draft if no original exists. C. "Communication(s)"means any other maimer of transmitting or receiving information, opinions or thoughts, whether orally, in writing or otberwise, including, but not being limited to, conversations (whether face-to-face, by telephone, by Internet Relay Chat (IRC), by Instant Messaging (IM), in a computer-hosted chat room environment, or other~vise), correspondence, memoranda, telexes, telecopies, telegrams and releases. "Concerning" means relating to, referring to, describing, evidencing, regarding or constituting. E. "Co~,rm~unication(s)" means any mmmer of transmitting or receiving information, opinions or thoughts, whether orally, in writing or otherwise, including, but not being limited to, conversations (whether face-to-face, by telephone or otherwise), correspondence, memoranda, telexes, telecopies, tele~an~s and releases. F. "Complaint" means the Complaint in the above-captioned action. G. ")mswer" means the Answer and New Matter filed by the Defendant Chicago Title in this action. H, "Property" means the property as described in the Cumberland County Recorder of Deeds Book 177, Page 1, and recorded May 8, 1998 and whose legal deschption was attached as Exhibit "A" to Plaintiffs Complaint. I. The "Sewer Line Easement" means the right of way easement operated by the Cumberland-Franklin Township Joint Municipal Authority and recorded in the Office of the Recorder of Deeds of Cumberland County at Deed Book Q27, Page 419, on February 10, 1978. J. The ten'n "person" refers to both the plural and the singular, of any natural person, finn, corporation, association, group or organization, unless otherwise specifically stated. K. "Defendant" shall mean Defendant Chicago Title. L. The temps "and" and "or" each means and/or. M. The masculine gender includes the feminine gender and vice versa. N. The singular includes the plural and vice versa. I1. INSTRUCTIONS A. Whenever in these interrogatories there is a request to "state the basis" for a particular allegation, you are requested to provide the following specific information as to each such allegation: each and every fact upon which you base the allegation; each person with knowledge of the facts allegedly supporting the allegation and the individual scope of knowledge of each such person; m~d all documents or oral communications that you contend support the allegation. B. The tem~ "idemify" as used herein in cmmection with a "person" or "persons" means: state the names, titles, and the present addresses, or if m~cnown, the last ka~own addresses mid employers of such person or persons. C. If you claim that an answer to an interrogatory or a part thereof is in whole or part privileged or otherwise protected from discovery, identify such information by subject matter and state with particularity the nature and basis of your claim. D. If you object to any part of an interrogatory, answer all parts of the inten'ogatory to which you do not object and, as to each part to which you do object, state the basis for your objection. E. Unless otherwise indicated, the relevant time period covering these interrogatories shall be from January 1, 1997 through the present date. F. These interrogatories are propounded to you on a continuing basis and you are obliged to supplement your responses to these interrogatories as m~d when additional infom~ation requested herein comes to your attention. III. INTERROGATORIES 1. Identify each person whom you expect to call as a witness at trial and for each witness, set forth specifically the subject matter of his or her testimony. Identify all documents you intend to use and/or introduce into evidence at the trial of this action. PHILI: 446951-1 Identify any person whom you expect to testify as an expert witness at trial and, for each such person, provide a report (prepared and signed by the witness) containing a complete statement of all opinions to be expressed and the basis and reasons therefore, the data or other information considered by the witness in forming the opinions, any exhibits to be used as a summary of or support for the opinions, the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years, the compensatio~ to be paid for the study and testimony, and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. List each and every reason for your asserting in Paragraph 34 of PIaintiff's Complaint that "[d]efendant did not have a reasonable basis for denying benefits to the Plaintiff m, der the Policy and Commitment." List each and every reason for your asserting in Paragraph 35 of Plaintiff,s Complaint that "[d]efendant knew or recklessly disregarded its lack of a reasonable basis in denying Plaintiff's claim." List each and every reason for your asserting in Paragraph 19 of Plaintiff,s Complaint that "[als a direct result of the sewer line easement, Plaintiff was unable to develop the property as a mobile home park." PH1LI: 446951-1 In paragraph eighteen (18) of your complaint you state that "[p]laintiffwas informed that all buildings on the property utilized on-lot sewer systems." Identify all persons who made such representations and for each person listed identify the following: a) employer; b) job titles; c) work addresses and telephone number; d) date and location that such representations were made; and e) any documents containing such representations. List each and every reason for your asserting in Paragraph 20 of Plaintiffs Complaint that "[t]he value of the property without the easement was approximately $800,000." List each and every reason for your asserting in Paragraph 20 of PlaintifFs Complaint that "It]he value of the property with the easement and the resulting limitations on subdivision is approximately $400,000." 10. List each and every reason for your asserting in Paragraph 28 of Plaintiff's Complaint that "It]he Defendant should have, by using reasonable diligence, discovered the sewer line easement in its search of the title to the property." PHILI: 446951-1 11. In paragraph thirteen (13) of your complaint you explain thai subsequent to taking title to the property, you subdivided the Property into two separate lots with one of the lots consisting of approximately 27 acres upon which the Plaintiff intended to construct a mobile home park. With regards to the other subdivided property/lot, identify the following: Size in terms of acres; Whether it has been developed, and if so, for what; If it has not yet been developed, describe what you intend to use the property for; and d. Its value, in your opinion. 12. Identify when, how, mad by who Plaintiff first became aware of the Sewer Line Easement maintained by the Cumberland-Franklin Joint Municipal Authority. 13. Identify each and every time, including date, that Plaintiff visited and/or inspected the Property before settlement. 14. In your letter dated February 18, 2002 to counsel for Defendant you state that Plaintiff purchased the Property intending to develop it as a mobile home park. List each and every step that you have taken to develop the property as a mobile home park, and identify all documents regarding efforts to so develop the Property. 15. In your letter dated February 18, 2002 to counsel for Defendant you state that in order to develop the property as a mobile home park it is necessary to provide two entrances to the Property. List each and every reason for your conclusion that the Sewer Line Easement prevented Plaintiff from providing two entrances to the Property. 16. List each and every reason for asserting in your letter dated February 18, 2002 to Defendant that "Pem~sylvania law allows the reasonable investment expectations." As part of this answer, please provide citations to Pem~sylvania and non-Pennsylvania ease law and statutes that allegedly supports your position. 17. .]Explain whether Plaintiff, or anyone acting on his behalf, observed any evidence of the Sewer Line Easement on the Property before settlement. 18. Identify whether any buildings or structures located on the Property are cmmected to a sewer line. 19. Identify whether the party or parties who sold the Property to Plaintiff disclosed before settlement that the Property was served by a public sewer system rather than a septic or other type of waste disposal system. 20. List each and every reason for your contention in Count II of your Complaint as well as in your letter dated February 18, 2002, that Defendant has violated Pem~sylvania's Insurer Bad Faith Statute. PHILI: 446951-1 21. List each and every reason for your contention that Defendant has breached the subject Title Insurance Policy. 22. List each and every reason why Plaintiffbelieves that his claim is covered under the subject Title Insurance Policy. 23. List each and every reason why Plaintiffbelieves that his claim does not fall within any of the Exceptions from Coverage as listed within the subject Title Insurance Policy or the Commitment for Title Insurance. KLEHR, HARR/SON, HARVEY BRANZBURG & ELLERS LLP Michael K. Coran, Esquire Brett D. Feldman, Esquire 260 South Broad Street Philadelphia, PA 19102 Attorneys for Defendant Chicago Title Insurance Company PHIL]: 44§951-1 CERTIFICATE OF SERVICE I, Brett D. Feldman, Esquire, certify that I caused a true and correct copy of Defendant's Chicago Title Insurance Company's First Set of Interrogatories to be served upon the following counsel of record via first class mail: Aaron S. Marines, Esquire 28 Pecan Square Lancaster, PA 17603 Brett D. Feldman, Esquire Exhibit B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY Plaintiff VS. CHICAGO TITLE iNSURANCE COMPANY Defendm~t CI-01-714 DEFENDANT CHICAGO TITLE INSURANCE COMPANY'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF GERALD EBERLY PLEASE TAKE NOTICE that in accordm~ce with the Rules of Civil Procedure, you are hereby requested to produce true and complete copies of the following documents at the offices of Klehr, Harrison, Harvey, Branzburg & Ellers LLP within the time prescribed by the Pem~sylvania Rules of Civil Procedure. Unless otherwise indicated, the definitions set forth in Defendant, Chicago Title Insurance Company's April 2, 2002 Interrogatories directed to plaintiff apply in the instant request for production of documents. REQUEST FOR PRODUCTION OF DOCUMENTS 1. All documents you intend to use and/or introduce into evidence at the trial of this action. Each statement made by a party or witness relating in any way to plaintiffor the above- captioned matter. For purposes of this request "statement" means a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof; which is a substantial verbatim recital of an oral statement made by the person making it contemporaneously recorded. Every report prepared by any person whom is expected to testify as an expert witness at trial, regardless of whether such testimony will be oral, by deposition, or written. 4. All photographs, maps and surveys of the Property. All investigation materials and documents related to this case but not including: a. The mental impression of your attorney or his concltisions, opinion, memoranda, notes, or summaries, legal research or legal theories; b. The mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics; c. Legal papers filed of record m~d served upon the undersigned; d. Transcripts of depositions attended by the undersigned or another member of this Plaintiffs federal tax returns for each year from 1996 until the present. All documents identified in your answers to the interrogatories of Defendant Chicago Title Insurance Company. 8. A copy of all trial exhibits Plaintiff intends to introduce at the trial of this matter. 2 PHILI: 453129-1 All documents supporting your assertion in Paragraph 34 of Plaintiff's Complaint that "[d]efendant did not have a reasonable basis for denying benefits to the Plaintiff under the Policy and Commitment." 10. All documents supporting your assertion in Paragraph 35 of Plaintiff's Complaint that "[d]efendant knew or recklessly disregarded its lack of a reasonable basis in denying Plaintiff's claim." 11. All documents supporting your assertion in Paragraph 19 of Plaintiff's Complaint that "[a]s a direct result of the sewer line easement, Plaintiff was unable to develop the property as a mobile home park." - 12. 13. All documents supporting your assertion in Paragraph 20 of Plaintiffs Compla/nt that "[t]he value of the property without the easement was approximately $800,000." Ali documents supporting your assertion in Paragraph 20 of Plaintiff's Complaint that "It]he value of the property with the easement and the resulting limitations on subdivision is approximately $400,000." 14. All documents supporting your assertion in Paragraph 28 of Plaintiff's Complaint that "[tJhe Defendant should have, by using reasonable diligence, discovered the sewer line easement in its search of the title to the property." 15. In paragraph thirteen (13) of your complaint you explain that subsequent to taking title to the property, you subdivided the Property into two separate lots with one of the lots 3 consisting of approximately 27 acres upon which the Plaintiff intended to construct a mobile home park. With regards to the other subdivided property/lot, identify all documents that relate to the following: 16. Size in terms of acres; Whether it has been developed, and if so, for what; If it has not yet been developed, describe what you intend to use the property for; and Its value, in your opinion. All documents showing when, how, and by whom Plaintiff first became aware of the Sewer Line Easement maintained by the Cumberland-Frm~lin' )0int Municipal Authority. 17. All documents identifying each and every time, including date, that Plaintiff Visited and/or inspected the property before settlement. 18. In your letter dated February 18, 2002 to counsel for Defendant you state that Plaintiff purchased the Property intending to develop it as a mobile home park. Identify all documents addressing each and every step that you have taken to develop the property as a mobile home park. 19. In your letter dated February 18, 2002 to counsel for Defendant you state that in order to develop the property as a mobile home park it is necessary to provide two entrances to the Property. Identify all documents supporting your conclusion that the Sewer Line Easement prevented Plaintiff from providing two entrances to the Property. 4 PHILI: 453129-I 20. All documents for your assertion in your letter dated February 18, 2002 to Defendmat that "Pennsylvania law allows the reasonable investment expectations." 21. All documents addressing whether Plaintiff, or anyone acting on his behalf, observed any evidence of the Sewer Line Easement on the Property before settlement. 22. All documents addressing whether any buildings or structures located on the Property are cormected to a sewer line. 23. All documents addressing whether the party or parties who sold .the Property to Plaintiff disclosed before settlement that the Property was served by a p¢~iic sewer system rather than a septic or other type of waste disposal system. 24. Ail documents supporting your contention in Count II of your Complaint as well as in your letter dated February 18, 2002, that Defendant has violated pem~sylvania's Insurer Bad Faith Statute. 25. All documents supporting your contention that Defendant has breached the subject Title Insurance Policy. 26. All documents supporting your contention that Plaiutiffs claim is covered under the subject Title Insurance Policy. 27. All documents supporting your contention that your claim does not fall within any of the Exceptions from Coverage as listed within the subject Title Insurance Policy or the Commitment for Title Insurance. KLEHR, HARRISON, HARVEY BRANZBURG & ELLERS LLP By: Michael K. Coran, Esquire . Brett D. Feldman, Esquire 260 South Broad Street Philadelphia, PA ! 9.102 Attorneys for Defdndant Chicago Title Insurance Company 6 CERTIFICATE OF SERVICE I, Brett D. Feldman, Esquire, certify that I caused a true and correct copy of Defendant Chicago Title Insurance Company's Request for Production of Docmnents to be served upon the following counsel of record via first class mail: Aaron S. Marines, Esquire 28 Perm Square Lancaster, PA 17603 Date: April'S\,2002 f~ff.~ Brett D. Feldman, Esquire PH1LI: 453129-I Exhibit C I4~LEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP ATTORNEYS AT LAW BRETT D. FELDMAN Direct Dial: (215) 569°3697 BFeldman~Klehr corn 260 S. BROAD STREET PHILADELPHIA, PA 19102 (215) 568-6060 FAX: (215) 568-6603 www.klehr.com May 8, 2002 New Jersey Office 457 Haddonfield Road Suite 510 Cherry Hill, New Jersey 08002-2220 (856) 486-7900 Delaware Office 919 Market Street Suite 1000 Wilmington, Delaware 19801-3062 (302) 426-1189 VIA FACSIMILE AND REGULAR MAIL Aaron S, Marines, Esquire 28 Penn Square Lancaster, PA 17603 RE: Gerald Eberly v. Chicago Title Insurance Company Cumberland County C.C.P., Civ. A. No. CI-01-714 Dear Aaron: I write to confirm that Defendant Chicago Title Insurance Company has granted you until May 29, 2002 to answer its First Set of Interrogatories and Request for Production of Documents directed to Plaintiff. Also, I look forward to soon receiving from you a copy of the deed as referenced in paragraph 4 of your Complaint at Cumberland County Recorder of Deeds Book 177, Page 1. In the interim, if you have any questions regarding this letter please do not hesitate to contact me at the above phone number. SiT~Y' Brett D. Feldman BDF:ec PHIL1: 455836-1 Exhibit KLEHR~ HARRISON~ HARVEY~ BRANZBURG & ELLERS LLP ATTORNEYS AT LAW BRETT D. FELDMAN Direct Dial: (215)569-3697 BFeldman(~Klehr.com 260 S. BROAD STREET PHILADELPHIA, PA 19102 (215) 568-6060 FAX: (215) 568-6603 www.kleh r.com June 5,2002 New Jersey Office 457 Haddonfield Road Suite 510 Cherry Hill, New Jersey 08002-2220 (856) 486-7900 Delaware Office 919 Market Street Suite 1000 Wilmington, Delaware 19801-3062 (302) 426-1 t 89 James H. Thomas, Esquire Aaron S. Marines, Esquire 28 Penn Square Lancaster, PA 17603 RE: Gerald Eberly v. Chicago Title Insurance Company Cumberland County. C.C.P., Civ. A. No. CI-01-714 Dear Gentlemen: On April 2, 2002, I served upon you Defendant Chicago Title's first set of interrogatories directed to Plaintiff. On April 24, 2002, I then served upon you Chicago Title's first request for production of documents. On May 8, 2002, Chicago Title kindly granted you until May 29, 2002 to answer its interrogatories and request for production of documents directed to Plaintiff. To date, you have not served the responses to our interrogatory requests or request for production of documents. Please respond to these discovery requests by June 13, 2002 so as to eliminate the need for us to file a Motion to Compel. If you have any questionS, please do not hesitate to contact me at the above number. Sincerely, Brett D. Feldman BDF:ec Enclosures CERTIFICATE OF SERVICE I, Brett D. Feldman, Esquire, hereby certify that on this ~day of June, 2002, I caused a tree and correct copy of Chicago Title Insurance Company's Motion to Compel Plaintiff's Answers to Interrogatories and Request for Production of Documents and Proposed Order to be served, via first class mail, postage prepaid, upon the following: James H. Thomas, Esquire Aaron S. Marines, Esquire Blankinger, Byler & Thomas, P.C. Attorneys at Law 28 Penn Square Lancaster, PA 17603 KLEHR, HARRISON, HARVEY BRANZBURG & ELLERS LLP Dated: By: Michael K. Coran, Esquire Brett D. Feldman, Esquire 260 South Broad Street Philadelphia, PA 19102 Attorneys for Defendant Chicago Title Insurance Company JULO~2D02 ~ GERALD EBERLY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiff, VS. CHICAGO TITLE INSURANCE COMPANY Defendant. CI-01-714 ORDER AND NOW, this ~ ~- day of (?% ,2002, upon consideration of Defendant Chicago Title Insurance Company's Motion to Compel Plaintiff's Answers to Interrogatories and Request for Production of Documents, it is hereby ORDERED and DECREED that Plaintiff Gerald Eberly shall serve discovery responses to the Interrogatories and Request for Productio.n of Documents and produeo all ~oquostod dooum¢,,ts thorei~ within tc~ (.kOJ'days of ~aent.~te of this Order. BY THE COURT GERALD EBERLY, Plaintiff VS. CHICAGO TITLE iNSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0714 CIVIL CIVIL ACTION - LAW iN RE: MOTION TO COMPEL ORDER AND NOW, this ! o ' day of October, 2002, argument on the within motion to compel is set for Wednesday, October 30, 2002, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THECOURT, Aaron S. Marines, Esquire For the Plaintiff Brett D. Feldman, Esquire For the Defendant :rim ASM:MLS: 274647.1 ( 18414,001 ) 10/2/02 Cl-01-714 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY Plaintiff VS. CHICAGO TITLE INSURANCE COMPANY Defendant CI-01-714 MOTION TO COMPEL RESPONSE TO PLAINTIFF'S SECOND SET OF INTERROGATORIES Plaintiff, Gerald Eberly, by and through his counsel, Blakinger, Byler & Thomas, P.C., hereby moves this Court for an Order compelling the Defendant to respond to the Plaintiff's Request for Second Set of Interrogatories in the above-captioned matter. In support of this Motion, the Plaintiff avers as follows: 1. The Movant is Gerald Eberly, an adult individual residing at 623 Maple Street, East Earl, Lancaster County, Pennsylvania ("Eberly"). 2. Eberly instituted the above-captioned lawsuit against Chicago Title Insurance Company ("Chicago Title") on February 9, 2001 by filing a Praecipe for a Writ of Summons with the Prothonotary of the Court of Common Pleas of Cumberland County. Eberly filed a Complaint in this matter on October 4, 2001. On or about January 10, 2002, Eberly served Chicago Title with Plaintiff's Second Interrogatories to Defendant. 3. On or about March 11, 2002, Chicago Title responded to Ebefly's Second Set of Interrogatories. A copy of Eberly's Interrogatories together with Chicago Title's Answer thereto is attached as Exhibit "A". 4. Eberly's Interrogatories Nos. 14 through 17 request certain financial information concerning the wealth of Defendant, Chicago Title. ASM:MLS: 274647.1 ( 18414.001 ) 10/2/02 Cl-01-7'14 5. Chicago Title objected to and refused to provide answers to Interrogatories 14 through 17 of Eberly's Second Set of Interrogatories. 6. Count II of Eberly's Complaint states a cause of action in bad faith by Chicago Title pursuant to 42 Pa.C.S.A. § 8371. In this Count, Eberly alleges: 34. The Defendant did not have a reasonable basis for denying benefits to the Plaintiff under the Policy and Commitment. 35. the Defendant knew or recklessly disregarded its lack of a reasonable basis in denying the Plaintiff's claim. 36. Pursuant to 42 Pa. C.S.A. § 8371 this Court is permitted to assess the following against the Defendant: (a) Interest on the claim in an amount equal to the prime rate of interest plus 3%, assessed fi.om February 9, 1999 until the date of the judgment in this action; (b) punitive damages; and (c) court costs and attorneys' fees. WHEREFORE, the Plaintiff, Gerald Eberly, respectfully requests that this Court enter a judgment against the Defendant, Chicago Title Insurance Company for breach of contract and insurance bad faith in the amount of $400,000, plus interest in the amount equal to the prime rate of interest in the amount equal to the prime rate of interest, plus 3% accruing fi.om February 9, 1999 until the date of this judgment, punitive damages against the Plaintiff, and court costs and reasonable attorney fees incurred in this matter. 2 ASM:MLS: 274647.1 ( 18414.001 ) 10/2/02 CI-01-714 7. Pa,R.C.P. 4003.7 provides "a party may obtain information concerning the wealth of a defendant on a claim for punitive damages only upon an Order of the Court setting forth appropriate restrictions as to the time of the discovery, the scope of the discovery and the dissemination of the material." 8. All of the information requested by Eberly's Interrogatories 14 through 17 are necessary to establish the wealth of Defendant, Chicago Title. 9. Chicago Title has not objected to Eberly's Interrogatories 14 through 17 on the basis that the answers to said Interrogatories are sought in bad faith or would cause unreasonable annoyance, embarrassment, oppression, unnecessary expense, or any other reason pursuant to the Pa.R.C.P. 4011, only that such information may remain undisclosed without an Order of this Court. WHEREFORE, the Plaintiff, Gerald Eberly, respectfully requests that this Court enter the attached Order compelling the Defendant, Chicago Title Insurance Company, to fully comply with and answer the Plaintiff's Second Set of Interrogatories, subject to any appropriate restrictions as to the time of the discovery, the scope of discovery or the dissemination of the material discovered as may be imposed by this. Respectfully submitted, BLAKINGER, BYLER & THOMAS, P.C. Aaron S. Marines, Esquire Attorney I.D. #85728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff ASM:MLS: 274647.1 ( 18414.001 ) 10/2/02 CI-01-714 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Motion to Compel Response to Plaintiff's Second Set of Interrogatories upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: Brett D. Feldman, Esquire KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS, LLP 260 South Broad Street Philadelphia, PA 19102 Dated: ,2002 BLAKINGER, BYLER & THOMAS, P.C. Aaron S. Marines, Esquire Attorney I.D. 885728 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff Exhibit A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GERALD EBERLY VS. Plaintiff CI401-714 CHICAGO TITLE INSURANCE COMPANY Defendant DEFENDANT CHICAGO TITLE INSURANCE COMPANY'S RESPONSE TO PLAINTIFF'S SECOND SET OF INTERROGATORIES Defendant, Chicago Title Insurance Company (hereinafter "Defendant"), hereby responds and objects to Plaintiff's Second Set of Interrogatories as follows: GENERAL OBJECTIONS 1. Defendant objects to each interrogatory request to the extent it seeks information protected from disclosure by the attorney-client privilege, attorney work product doctrine, proprietary or confidentiality doctrines, or any other privilege and/or immunity. 2. Defendant further objects to each interrogatory request to the extent it seeks information not relevant to the allegations contained in the Complaint or is otherwise not reasonably calculated to lead to the discovery of admissible evidence within the meaning of the Pennsylvania Rules of Civil Procedure. 3. Defendant objects to the Interrogatories to the extent they are unduly burdensome and overly broad. PHIL1: 441332-1 4. Defendant objects to the Interrogatories to the extent they require Defendant to identify documents that are not within its custody or control. 5. Defendant objects to the Interrogatories to the extent they contain compounded questions which render them inconsistent with the Pennsylvania Rules of Civil Procedure. 6. Defendant objects on the grounds that Plaintiff has failed to provide adequate Definitions and Instructions. These general objections are made to each and every interrogatory hereto by reference as if fully set forth herein. SPECIFIC RESPONSES 1. List each and every reason for yotlr assertion in Paragraph 43 of the Defendant's Answer with New Matter that the Plaintiff, Gerald Eberly had actual and/or constructive notice of the elevated sewer line easement encumbering the property. Please identify any and all documents in your possession which support these reasons. RESPONSE: Plaintiffs counsel in his December 15, 1999 letter to counsel for Defendant states that by the date of settlement on the subject property, Plaintiff had visited and examined the subject property on at least three occasions. In that same correspondence, Plaintiff acknowledged that the seller of the subject property told him ~that the property was served by public sewage" rather than a septic or other type of water system. By way of further answer, the sewer line easement appears on the Boundary Survey of Plaintiff" s property prepared by John M. Huck and dated July 28, 1998, and on the Final Plan for Plaintiffs subdivision prepared by Fisher Engineering, Inc. and dated August 4, 1998. At this early stage of the litigation, such facts strongly suggest that during Plaintiff s repeated visits to the subject property, Plaintiff witnessed ph~/sical evidence of the easement and therefore "had actual and/or constructive notice of the elevated sewer line easement encumbering the property." Without waiving any objections, and in a good faith effort to respond, Defendant reserves the right to supplement this answer as additional discovery occurs. 2. List each and every reason for your asserting in Paragraph 44 of the Defendant's Answer with New Matter that the Plaintiff's claims for indermfity are not covered under the terms of the subject policy. Please identify any documents in your possession which snpport these reasons. RESPONSE: Defendant objects to this Interrogatory as it has not yet made a final determination as to indemnity coverage under the Policy. By way of further answer, counsel for Defendant in her April 7, 1999 correspondence to Plaintiff s counsel explained that the following terms of the subject policy were relevant in determining whether Plaintiff was covered: ,, The Exclusions from Coverage Provision of the Policy provides that: it]he following matters are expressly excluded from coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of... (3) [d]efects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant;... [orJ (c) resulting in no loss or damage to the insured claimant .... Schedule B of the Policy, entitled Exceptions from Coverage, provides that: [t]his policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: General Exceptions: Encroactunents, overlaps, boundary line disputes and any other matters which would be disclosed by an accurate survey and inspection of the promises. 2. Easements or claims of easements not shown as existing liens by the public records. By way of further answer, Defendant refers Plaintiffto the commitment for title insurance to Plaintiff which is attached to Plaintiffs complaint as Exhibit "B" as well as the Title Insurance Policy of May 1 I, 1998 which is also attached to Plaintiffs complaint as Exhibit "C.' 3. List each and every reason that you assert in Paragraph 41 of the Defendant's Answer with New Matter that the Plaintiff has suffered no damage due to the elevated sewer line casement encumbering the property. Please identify each and every document in your possession which support these reasons. RESPONSE: Plaintiff in his February 18,2001 letter to counsel for Defendant alleges that he is entitled to $400,000 in damages on account of the elevated sewer line. Specifically, plaintiff alleges that he is entitled to this amount which he alleges is the difference in the value of the property if developed as a mobile home park ($800,000) versus the value of the property if not developed in this manner ($400,000). Plaintiff alleges that under Pennsylvania law he is entitled to these damages which represent his "investment backed expectations." To the contrary, Pennsylvania law is clear that damages for Plaintiff's investment expectations are not recoverable. Pulte Home Corp. v. Indus. Valley Ins. Co., 73 D. & C. 2d 320. On this issue the Pulte Court stated that in a title insurance action "[d]amages further cannot be allowed for profits lost on the anticipated sale of dwellings which have not been PHIL1: 441332-1 constructed" because such damages "based on subsequent collateral undertakings would still be too remote and too speculative to be recovered." Id_.:. at 324. Instead, the proper measure of damages in a title insurance dispute is the value of the title without the encumbrance less the value of the title with the encumbrance. See Sattler v. Phila. Title Ins. Co., 162 A.2d 22, 25 (Pa. Super. Ct. 1960). Under the appropriate Pennsylvania damages standard plaintiff has suffered no damages since he purchased the property for $400,000 when he allegedly was unaware of the encumbrance and according to plaintiffs pleading in this action, the current value of the property as m~improved is still $400,000. By way of further answer, even if Pennsylvania law allowed for lost profits, plaintiff has never substantiated his damages claim despite counsel for counsel for Defendant repeatedly requesting that Plaintiff substantiate his claim of damages by obtaining an appraisal. (See correspondence from counsel for Defendant to Plaintiff dated April 7, 1999, November 2, 1999, December 2, 1999 and most recently on February 12, 2002.) In response, as the following referenced letters demonstrate, Plaintiffhas repeatedly promised Defendant that evidence substantiating his damages claim will be forthcoming: · December 15, 1999 (~'We are still in the process of obtaining appraisals for these various uses and will provide them xvhen we receive them."); * November 17, 1999 ("We are in the process of obtaining an appraisal which I will forward to you when it is received."); and ,, February 18, 2002 ("If we pursue litigation, we will provide you our expert appraisal report in accordance with Pennsylvania Rules of Civil Procedure.") Despite such repeated assurances, Plaintiff has failed to substantiate his damages claim, namely that the value of the subject property without the elevated sewer line easement is approximately $800,000.00 while the value of the property with the sewer line easement is approximately $400,000.00. Until and unless Plaintiffprovides support for his damages allegations, Defendant has no way to determine whether Plaintiff has actually suffered damages covered under the subject policy. By way of further answer, it is believed and therefore averred that Plaintiff is in possession of each one of the above referenced letters. If not, Defendant will provide copies of the above-referenced letters. 4. List each and every reason for your denial in Paragraph 20 of the Defendant's Answer with New Matter that the value oft. he property without the elevated sewer line easement was approximately $800,000.00 while the value of the property with the easement and resulting limitations on subdivision was approximately $400,000.00. Please identify each and every document in your possession ~vhich support these reasons. PHIL1: 441332-1 RESPONSE: Se~e Defendant's response to interrogatory number three. 5. List each and every reason that you assert in Paragraph 34 of Defendant's Answer and New Matter, that the Plaintiff has not provided you with "certain information necessary in order to reach a decision as to whether Plaintiff is entitled to benefits under the subject title insurance" with each and every piece of information that you require to make this determination, together with any requests that you have made of the Plaintiff to receive this information, the date or dates that such requests were made, the Plaintiffs response to these requests for information, and any and all reasons that you believe these responses were inadequate. Please identify any and all documents in your possession that support these reasons. . RESPONSE: See Defendant's response to interrogatory number three addressing how plaintiffhas failed to substantiate his damages claim. By way of further answer, Plaintiff has repeatedly refused to answer whether anyone acting on his behalf "ever observed any evidence of the sewer line easement on the property" or whether anyone acting on his behalf ever questioned anyone regarding evidence of the sewer line easement. Moreover, Plaintiffhas refused to honor Defendant's requests to be permitted to contact John M. Huck and Fisher Engineering to obtain information regarding the boundary survey, subdivision plan, and the exact location of the Sewer Line Easement. Until and unless Plaintiff provides the above outstanding requested information, Defendant will remain unable to determine whether Plaintiff is covered under the applicable provisions of the Title Insurance Policy. 6. If you assert that the Plaintiffhas not provided information necessary for you to determine if the Plaintiff is entitled to benefits under the title insurance policy, please explain any of the steps that you have taken to obtain information subsequent to the Plaintiffs December 15, 1999 letter in response to your request for information. In doing so, please provide: (a) Identify any letters or other written requests for additional information made to the Plaintiff subsequent to December 15, 1999. If you will do so without a PHIL1:441332-1 formal request for the production of documents, please provide any and all such requests in your possession. (b) Detail each and every reason why you believe the Plaintiffs December 15, 1999 response did not provide enough information to determine whether the Plaintiff was entitled to benefits under the title insurance policy. Identify any documents in your possession which support these reasons. (c) Identify each and every person involved in making the determinations mentioned in subparagraph (b) above, together with the person's professional address and telephone number. RESPONSE: Despite Plaintiff's refusal to provide Defendant with information necessary to make a determination as to coverage (see Defendant's response to interrogatory number five describing Defendant's effort to obtain from Plaintiffnecessary information), Defendant has continued to investigate whether Plaintiff is eligible for coverage and the measure of damages if Plaintiff is covered. By way of example, Defendant has extensively investigated the history, nature, and scope of the Unrecorded Electric Easement (i.e., obtaining a letter from Adams Electric Cooperative and a copy of the unrecorded easement which was signed by Mr. Glenn L. Crider) as well as the sewer system easement (i.e., obtaining condemnation proceedings for the sewer system easement). Instead of fully responding to Defendant's information requests, Plaintiff in February 2001 filed a Writ of Summons against Defendant. In the summer of 2001 Defendant provided complete responses to Plaintiff's Interrogatories and Request for Production of Documents. On October 3, 2001 Plaintiff filed his Complaint. On February 12, 2002, Defendant again requested that Plaintiff provide information regarding the following questions: l. The total amount of damages claimed by Mr. Eberly; 2. The method by which these damages are calculated; 3. An itemization of the component of damages; and 4. A settlement demand. Plaintiff's continued failure to provide complete answers to Defendant's information requests prevents Defendant from determining whether Plaintiff is covered under the title insurance policy. By way of example, and as discussed above, until Plaintiff establishes that he has PHIL1: 441332-1 actually suffered damages, the title insurance policy does not provide coverage and Pennsylvania law does not permit damages to be awarded. By way of further answer, the following individuals made the determination that Plaintiff's December 15, 1999 response did not provide enough information to determine whether the Plaintiffwas entitled to benefits under the title insurance policy: Michael Coran, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers 260 South Broad Street Philadelphia, PA 19102-5003 (215) 569-2497 Scott Elterman, Esquire Chicago Title Insurance Company 711 Third Avenue, 5'h Floor New York, NY 10017 (212) 988-0990 7. If you believe that the elevated sewer line easement would have been disclosed by an accurate survey of the property, please [sic] each and every reason for this assertion. Identify each and every document in your possession which supports this claim. RESPONSE: Since Plaintiff acquired the property, two surveys have been made of the Property, both of which clearly show the Sewer Line Easement. John M. Huck prepared a Boundary Survey of Gerald Eberly's Property dated July 28, 1998. Fisher Engineering, Inc., prepared the Final Plan for the Gerald Eberly Subdivision survey dated August 4, 1998. Since these surveys clearly show the sewer line easement, Defendant assets that it has already been established that "the elevated sewer line easement would have disclosed by an accurate survey of the property." 8. If you assert that the Plaintiff failed to notify you of the elevated sewer line easement, please provide each and every reason for this claim. Identify each and every document in your possession which supports this claim. RESPONSE: This interrogatory is ob.iectionable as premature as discovery has just begun and Defendant has not yet propounded discovery requests (interrogatories and requests for production of documents) regarding this and other relevant PHIL1: 441332-1 issues, let alone conduct depositions. Accordingly, Defendant reserves the right to amend this interrogatory response as discovery proceeds and additional information is revealed. By way of further answer, see Defendant's response to interrogatory number one. 9. If you assert that the Plaintiff failed to provide notice of a claim for indemnity pursuant to the title insurance policy, please provide each and every reason for that claim. Identify each and every document in your possession which supports this claim. RESPONSE: This interrogatory is objectionable as premature as discovery has just begun and Defendant has not yet propounded discovery requests (interrogatories and requests for production of documents) regarding this and other relevant issues, let alone conduct depositions. Accordingly, Defendant reserves the right to amend this interrogatory response as discovery proceeds and additional information is revealed. 10. If you assert that you could not have discovered the sewer line easement in your search of title to the property by using reasonable diligence, please provide each and every reason for that denial. Identify each and every document in your possession ~vhich supports this claim. RESPONSE: Defendant objects to this interrogatory as irrelevant to any of the claims which have been brought by Plaintiff in this action, or any defense which has been or could be raised by Defendant. Defendant further objects to this interrogatory as it is directed to a party other that Defendant. By way of further answer, the title search which apparently failed to reveal the sewer line easement ~vas conducted by Hamilton C. Davis of the Zullinger-Davis Corporation. Zullinger-Davis' address and phone number is as follo~vs: 75 East King Street P.O. Box 40 Shippensburg, PA 17257 (717) 532-5713 I 1. Please identify each and every witness who you intend to have testify at trial, together with that person's professional address, telephone number, and the anticipated substance of that witnesses' testimony. RESPONSE: This interrogatory is objectionable as premature as Defendant has not yet made any decision regarding which witnesses, if any, it intends to introduce at trial. Without waiving any objections, and in a good faith effort to respond, Defendant will provide required witness disclosures pursuant to the Pennsylvania Rules of Civil Procedure and any case management order entered by the Court. 12. Please state the name and address of each person who you expect to call as an expert witness at trial of this matter. State in detail the facts and opinions to which each proposed expert witness would be expected to testify to. RESPONSE: This interrogatory is objectionable as premature as Defendant has not yet made any decision regarding potential expert witnesses, if any, it intends to introduce at trial. Without waiving any objection, and in a good faith effort to respond, Defendant will provide required expert witness disclosures pursuant to the Pennsylvania Rules of Civil Procedure and any case management order entered by the Court. 13. If you have not already done so, please identify every document, piece of physical evidence, or other evidence of any nature whatsoever which you intend to introduce at trial. RESPONSE: This interrogatory is objectionable as premature as Defendant has not yet made any decision regarding which "documents", or "other evidence of any nature whatsoever", it intends to introduce at trial. Without waiving any objections, and in a good faith effort to respond, Defendant will provide required evidentiary disclosures pursuant to the Pennsylvania Rules of Civil Procedure and any case management order entered by the Court. 14. Are you required to report your financial condition to any governmental agency concerned with the licensing or regulation of insurance. If so, indicate the name and address of each agency to which you have reported. RESPONSE: Defendant objects to this interrogatory pursuant to Pennsylvania Rule of Civil Procedure 4003.7 which addresses when a party may obtain information concerning the Wealth of a defendant in a claim for punitive damages. 15. For each of the last five (5) fiscal years, please state your net worth, gross assets, gross income, and net income or loss. If you will do so without a formal request for the PHIL1: 441332-1 production of documents, please provide financial statements for the last five (5) fiscal years, and indicate whether these statements have been audited. RESPONSE: See Defendant's response to interrogatory number 14. 16. List any subsidiary or any other company in which you hold a controlling interest. RESPONSE: See Defendant's response to interrogatory number 14. 17. For each company listed in paragraph 16 above, state for each of the last five (5) fiscal years, the company's net worth, gross assets, gross income, and net income or loss. If you will do so without a formal request for the production of documents, please provide financial statements for each of these companies for the last five (5) years. RESPONSE: See Defendant's response to interrogatory nurnber 14. 18. Do you have any insurance that may indemnify you for all or part of the claim made by Plaintiff? If so, please identify the insurer, the type of policy, and the total amount of coverage. If you will do so without a formal request for the production of documents, please provide any and all such insurance policies. RESPONSE: Defendant does not have any insurance that may indemnify it for all or part of the claim made by Plaintiff: The only policy of insurance applicable to this matter is the title insurance policy. 19. Please list each and every person who prepared or assisted in the preparation of any responses to the preceding interrogatories, together with the person's business address and telephone number, job title, job duties or description, and the description of each person's work in the preparation of the interrogatory responses. PHIL1: 441332-1 RESPONSE: The following individuals assisted in the preparation of Defendant's responses to the preceding interrogatories: Michael Coran, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers 260 South Broad Street Philadelphia, PA 19102-5003 (215) 569-2497 Scott Elterman, Esquire Chicago Title Insurance Company 711 Third Avenue, 5~' Floor New York, NY 10017 (212) 988-0990 Brett D. Feldman, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers 260 South Broad Street Philadelphia, PA 19102-5003 (215) 569-3697 Dated: March 8, 2002. KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: ~/~ ~. ~'~fl~'~ Michael K. Coran Brett D. Feldman 260 S. Broad Street Philadelphia, PA 19102-5003 Attorneys For Defendant Chicago Title Insurance Company PHIL1:441332-1 VERIFICATION I verify that the statements made in Defendant Chicago Title Insurance Company's Response to Plaintiff's Second Interrogatories are true and correct. This verification is made subject to the penalties of 18 Pa., C.S.A. § 4904, relating to unswom falsification to authorities. Brett D. Feldman Dated: March 8, 2002. PHIL1: 441332-1 CERTIFICATE OF SERVICE I hereby certify that I served on the 8th day of March Defendant Chicago Title Insurance Company's Response to Plaintiff's Second Interrogatories upon the person and in the manner indicated below, which service satisfies the requirements of the Pem~sylvania Rules of Civil Procedure. Service by FIRST CLASS MAIL addressed as follows: Dated: March 8, 2002. James H. Thomas, Esquire Aaron S. Marines, Esquire 28 Penn Square Lancaster, PA 17603 (717) 299-1100 Attorneys for Plaintiff Brett D. Feldman GERALD EBERLY, Plaimiff VS. CHICAGO TITLE INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-0714 CIVIL CIVIL ACTION - LAW IN RE: MOTION TO COMPEL ORDER AND NOW, this '-/* day of November, 2002, argument on the within motion to compel is set for Thursday, December 5, 2002, at 2:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THECOURT, Aaron S. Marines, Esquire For the Plaintiff Brett D. Feldman, Esquire For the Defendant :dm IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE TO SETTLE. SATISFY, DISCONTINUE GERALD EBERLY Plaintiff(s) V. CHICAGO TITLE INSURANCE COMPANY Defendant(s) Case No. 01-714 Civil TO THE PROTHONOTARY: Please mark the above matter settled, ended, discontinued and costs paid. OR Please mark the above matter THIS MATTER WAS INDEXED FOR THE FOLLOWING: Arbitration Award (date) Default Judgment (date) Lis Pendens (date) Other (date) (~H. Thomas, Esquire Attorney for Plaintiff(s) Attorney for Defendant(s) Attorney for NOTE: Signature of Defendant(s) Counsel, Additional Defendant(s) Counsel needed if case has an Additional Defendant, Counterclaim or Crossclaim(s). DISCONTINUANCE CERTIFICATE AND NOW, ~.~-c~- f ~. o~ 0(4~it has been marked as above directed.