HomeMy WebLinkAbout01-0895SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO, INC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
.OC T NO.: b,'(
CIVIL ACTION - LAW
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claims set forth in
the following pages, you must take action within twenty (20) days after this complaint and notice
are served, by entering a written appearance personally or by an attorney and filing in writing
with the Court your defenses or objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a judgment may be entered against
you by the Court without further notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER 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
78751.1 2/12/01
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGIIEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO, INC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO.:
CIVIL ACTION - LAW
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan en las paginas siguientes, usted debe romar acci6n dentro los pr6ximo viente
(20) dias al partir de la fecha de la demanda y la notificaci6n. Usted debe presentar una apariencia escrita
o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las
demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomarfi medidas y
puede entrar una orden contra usted sin aviso adicional o notificaci6n y por cualquier queja o alivio que es
pedido en la petici6n de demanda. Usted puede perder dinero o sus propiedades o otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A UN ABOGADO
1NMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE
PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
78751 1 2/12/01
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO, INC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendants.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
: DOCKETNO.: ~/-~?q3' (-?~" /
._
..
._
CIVIL ACTION - LAW
COMPLAINT
AND NOW, COMES, Jack Gaughen Realtor, ERA, by and through its counsel Saul
Ewing LLP, and files its Complaint against the named Defendants, Pamay Development Co.,
Inc., Harry S. Claypool & Sons, Inc., and Zimmerman Building Corporation, and in support
thereof avers as follows:
1. Plaintiff, Jack Gaughen Realtor, ERA, (hereinafter "PLAiNTIFF") is a
Pennsylvania business corporation with an address located at 3915 Market Street, Camp Hill,
Cumberland County, Pennsylvania, 17011-4038.
2. Defendant Pamay Development Co., Inc.(hereinafter "PAMAY") is a
Pennsylvania real estate development corporation having its principal place of business located
at 5140 East Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania 17055
3. Defendant Harry S. Claypool & Sons, Inc. (hereinafter "CLAYPOOL & SONS")
is a Pennsylvania business corporation engaged in the construction of new homes and having its
787511 2/12/01
principal place of business located at 1210 King Circle, Mechanicsburg, Cumberland County,
Pennsylvania,
4.
Pennsylvania real estate development corporation having its principal place of business located
at 2029 Cato Avenue, State College, Pennsylvania.
Defendant, Zimmerman Building Corporation (hereinafter "ZIMMERMAN"), is a
COUNT I - BREACH OF CONTRACT
Jack Gaughen Realtor, ERA v. Pamay Development Co., Inc and
Harry S. Claypool & Sons, Inc.
5. The averments set forth in paragraphs 1 through 4 of the Complaint are
incorporated herein by reference as if more fully set forth at length.
6. On or about January 8, 1999, PAMAY as Seller entered into an Exclusive Right
to Sell Agreement for Sale of Real Estate with Plaintiff for certain lots situate in a subdivision
known as "Pinehurst", Hampden Township, County of Cumberland, Pennsylvania. Pursuant to
the terms of the agreement, Plaintiff is entitled to receive a five percent (5%) commission on the
lot and house package price. A true and correct copy of the Exclusive Right to Sell Agreement,
together with its corresponding Addendum l-A, is attached hereto and marked as Exhibit "A".
7. On or about March 18, 1999 PAMAY, as Seller, entered into an Agreement of
Sate for an unimproved lot known and numbered as Phase V Lot #24, Pinehurst, Mechanicsburg,
Cumberland County, Pennsylvania (hereinafter "Lot#24") with Roger and Deborah Lekberg
(hereinafter collectively "LEKBERG"), as Buyers. The purchase price for Lot//24 was
$170,000.00. A true and correct copy of the Agreement of Sale is attached hereto and is marked
as Exhibit "B".
78751 1 2/12/01
8. On or about March 18, 1999 PAMAY and LEKBERG executed a Real Estate
Agency Relationship Addendum to the March 18, 1999 Agreement of Sale, together with
Prudential Thompson Wood ("PRUDENTIAL") and PLAINTIFF as agents, whereby the parties
agreed that PRUDENTIAL would be paid two and one-half percent (2 V2%) of the purchase price
of Lot 24 by PLAINTIFF at the time the home being built settles and is completed. A true and
correct copy of the Real Estate Agency Relationship Addendum To The Agreement of Sale is
attached hereto and is marked as Exhibit "C".
9. On or about March 30, 1999 Harry S. Claypool, Sr., as President of PAMAY,
executed a Statement of Estimated Seller's Costs whereby Claypool sought to bind an
unidentified "Builder" to the obligation to pay the Broker's Commissions. The unidentified
"Builder" was neither a party to this sale document nor to the Exclusive Listing Agreement, and
consequently the "Builder" was not in privity to the contract. A true and correct copy of the
Statement of Estimated Seller's Costs is attached hereto and is marked as Exhibit "D".
10. On or about April 12, 1999, Harry S. Claypool, Sr. on behalf of CLAYPOOL &
SONS entered into a Construction Agreement with LEKBERG for the construction of a new
home. The contract price for the new home was $890,000.00. A true and correct copy of the
Construction Agreement is attached hereto and is marked as Exhibit "E".
11. On or about April 5, 1999, Harry S. Claypool, Sr., on behalf of CLAYPOOL &
SONS, executed a Statement of Estimated Seller's Costs wherein CLAYPOOL & SONS agreed
to pay a Broker's Commission of five percent (5%) of the total purchase price ($890,000.00) or
$44,500.00. A true and correct copy of the CLAYPOOL & SONS Statement of Estimated
Seller's Costs is attached hereto and is marked as Exhibit "F".
7875L 1 2/12/01
12. Settlement on Lot//24 occurred on April 9, 1999. A true and correct copy of the
HUD-1 Settlement Statement is attached hereto and is marked as Exhibit "G".
13. Settlement on the construction loan for the LEKBERG residence occurred on or
about May 3, 1999. A Certificate of Occupancy for the LEKBERG residence was issued on or
about February 18, 2000.
14. All conditions precedent for the payment of the Broker's commission have been
satisfied since February 18, 2000.
DEFENDANTS have received all of the money from the lending institution
15.
involved.
16.
As of the date of the filing of this Complaint, PLAiNTIFF has not received the
$44,500.00 Broker's Commission it is due pursuant to the Agreements of Sale for Lot 4/24 and
the new home constructed upon said Lot #24.
17. Despite PLAINTIFF'S repeated and numerous requests for payment of the
Broker's Commissions, DEFENDANTS PAMAY and CLAYPOOL & SONS have failed and
otherwise refused to pay PLAINTIFF'S Broker's Commissions due under the Agreements of
Sale.
18. DEFENDANTS' willful failure to pay the Broker's Commissions PLAINTIFF is
owed constitutes a material breach of the Agreements of Sale.
19. As a direct and proximate result of DEFENDANTS' breach, PLAINTIFF has had
to incur legal fees associated with the filing of this action to recover all sums due and owing
PLAINTIFF under the Agreements of Sale.
78751.1 2/12/01
WHEREFORE, PLAINTIFF, Jack Gaughen,ERA, respectfully requests that Judgment
be entered in its favor and against the DEFENDANTS, PAMAY DEVELOPMENT CO.,
INC. and HARRY S. CLAYPOOL & SONS, INC., jointly and severally, in the sum of Forty-
four thousand five hundred and no/100 Dollars ($44,500.00), together with pre-judgment
interest from February 18, 2000, post-judgment interest, reasonable attorneys fees and costs,
and further award PLAINTIFF all such other relief as is proper and just.
COUNT II - BREACH OF CONTRACT
Jack Gaughen Realtor, ERA v. Zimmerman Building Corporation and Harry S. Claypool
& Sons, Inc.
20. The averments set forth in paragraphs 1 through 18 are incorporated herein by
reference as if more fully set forth at length.
21. On or about May 13, 1997 ZIMMERMAN entered into an Exclusive Right to Sell
Agreement for Sale of Real Estate with Plaintiff for certain lots situate in a subdivision known as
"Phase IIIB, Kingswood Leyland Drive," Hampden Township, County of Cumberland,
Pennsylvania. Pursuant to the terms of the agreement, Plaintiff is entitled to receive a five
percent (5%) commission on the "total package (lot and house)". A true and correct copy of the
Exclusive Right to Sell Agreement is attached hereto and is marked as Exhibit "H".
22. On or about February 15, 1999 DEFENDANT ZIMMERMAN, as Seller, entered
into an Agreement of Sale with Forrest and Linda Adams,(collectively "ADAMS"), as Buyers,
for an unimproved lot located in the Kingswood Development and known and numbered as 3713
Leyland Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055 (hereinafter
"LEYLAND PROPERTY"). A true and correct copy of the Agreement of Sale is attached hereto
and is marked as Exhibit 'T'.
78751.I 2/12/01
23. In addition to the Agreement of Sale, DEFENDANT ZIMMERMAN and
ADAMS executed an Addendum to Agreement of Sale (hereinafter "Addendum") whereby
DEFENDANT ZIMMERMAN and ADAMS agreed that an unidentified "Builder" would be
obligated to pay a five percent (5%) Broker's Commission to PLAINTIFF on the house and lot
value. The unidentified "Builder" was not a party to this sale document, and consequently the
Builder was not in privity to the contract. A true and correct copy of the Addendum is attached
hereto and is marked as Exhibit "J".
24. On or about February 20, 1999 Harry S. Claypool, Jr. on behalf of
DEFENDANT, CLAYPOOL & SONS entered into a Construction Agreement with ADAMS for
the construction of their new home on the LEYLAND PROPERTY. A true and correct copy of
the Construction Agreement is attached hereto and is marked as Exhibit "K".
25. Some time subsequent to the execution of the Construction Agreement, Harry S.
Claypool, Jr. on behalf of DEFENDANT, CLAYPOOL & SONS executed a Statement of
Estimated Seller's Costs for the LEYLAND PROPERTY whereby CLAYPOOL & SONS,
agreed to pay a Broker's Commission of five percent (5%) of $300,700.00 or $15,035.00. A true
and correct copy of the Statement of Estimated Seller's Costs is attached hereto and marked as
Exhibit "L".
26. Settlement for the unimproved lot located at the LEYLAND PROPERTY
occurred on or about April 19, 1999. A true and correct copy of the HUD-1 Settlement Sheet is
attached hereto and marked as Exhibit "M".
27. Construction of the home located at the LEYLAND PROPERTY was completed
on or about November 15, 1999.
787511 2/12/01
28.
involved.
29.
DEFENDANTS have received all of the money from the lending institution
As of the date of the filing of this Complaint PLAINTIFF has not been paid the
$15,035.00 in Broker's Commissions it is due under the Agreements of Sale.
30. Despite repeated and numerous requests for payment of all Broker's Commissions
due under the Agreements of Sale, DEFENDANTS have failed and otherwise refused to pay all
Broker's Commissions due and owing under the Agreements of Sale.
31. DEFENDANTS' willful failure to pay the Broker's Commissions PLAINTiFF is
owed constitutes a material breach of the Agreements of Sale.
32. As a direct and proximate result of DEFENDANTS' breach, PLAINTIFF has had
to incur legal fees and costs associated with the necessity of filing of this action to recover all
sums due and owing PLAiNTIFF under the Agreement of Sale.
WHEREFORE, PLAINTIFF, Jack Gaughen, ERA, respectfully requests that this
Honorable Court enter Judgment in its favor and against DEFENDANTS, ZIMMERMAN
BUILDING CORPORATION and HARRY S. CLAYPOOL & SONS, INC., jointly and
severally, in the sum of Fifteen thousand thirty-five and no/100 Dollars ($15,035.00), together
with pre-judgment interest from November 15, 1999, post-judgment interest, reasonable
counsel fees and costs, and further award PLAINTIFF all such other relief as is proper and
just.
78751 1 2/12/~)1
COUNT III-UNJUST ENRICHMENT
Jack Gaughen Realtor, ERA v. Pamay Development Co., Inc.,
and Harry S. Claypool & Sons, Inc.
33. The averments set forth in paragraphs 1 through 31 are incorporated herein by
reference as if more fully set forth at length.
34. DEFENDANTS have received the benefit of PLAINTIFF'S brokerage services by
virtue of the fact that PLAiNTIFF produced ready, willing and financial qualified Buyers for the
following properties:
(a) Lot 24, Pinehurst, Sand Pine Court (Buyers-LEKBERG).
35. DEFENDANTS, jointly and severally, have each received a financial benefit as a
result of PLAINTIFF'S efforts.
36. DEFENDANTS, jointly and severally, have been unjustly enriched by virtue of
the fact that they have received the benefit of PLAINTIFF'S services without compensating
PLAINTIFF for its efforts.
WHEREFORE, PLAINTIFF, Jack Gaughen Realtor, ERA, respectfully requests that
this Honorable Court enter Judgment in its favor and against the DEFENDANTS, jointly and
severally, in the sum of $44,500.00, and further award PLAINTIFF all such other relief as is
equitable and just.
78751.1 2/12/01
COUNT IV-UNJUST ENRICHMENT
Jack Gaughen Realtor, ERA v. Harry S. Claypool & Sons, Inc.
and Zimmerman Building Corporation
37. The averments set forth in paragraphs 1 through 35 are incorporated herein by
reference as if more fully set forth at length.
38. DEFENDANTS have received the benefit of PLAINTIFF'S brokerage services by
virtue of the fact that PLAINTIFF produced ready, willing and financial qualified Buyers for the
following properties:
(a) Lot 614, 3713 Leyland Drive (Buyers-ADAMS).
39. DEFENDANTS, jointly and severally, have each received a financial benefit as a
result of PLAINTIFF'S efforts.
40. DEFENDANTS, joimly and severally, have been unjustly enriched by virtue of
the fact that they have received the benefit of PLAINTIFF'S services without compensating
PLAINTIFF for its efforts.
WHEREFORE, PLAINTIFF, Jack Gaughen Realtor, ERA, respectfully requests that
this Honorable Court enter Judgment in its favor and against the DEFENDANTS, jointly and
severally, in the sum of $15,035.00, and further award PLAINTIFF all such other relief as is
equitable and just.
78751.1 2/12/01
Date: February [~, 2001
Respectfully Submitted,
SAUL EWING, LLP
Paige Macdonald-Matthes, Esquire
Attorney ID No. 66266
2 North Second Street, 7~ Floor
Harrisburg, PA 17101
(717) 238-7675
Attorney for Plaintiff
78751.1 2/12/0[
FEB 87 2001 15:07 FR SERS 717 238 4622 717 230 4622 TO 4023~12523~?7009 P,13/13
VERIFICATION
I, Anne Storms, Manager, Camp Hill office of Jack Gaughen Realtor, ERA,
hereby verify and confirm that I ara authorized to sign this V~ification on behalf of Jack
Gaughen Realtor in this action, and I further aclmowledgc that I have read the foregoing
Comp[aint and that the facts stated therein are true and correct to the best of my knowledge,
information and belief.
I understand also that any false statements herein arc made subject to the penalties
of 18 Pa C.S. § 4904, relating to unswom falsification to authorities.
Aane Store
Manager, Camp I-Iill Office
lack Gaughen Realtor, ERA
TOTAL PAGE, 13 ~*
Exhibit A
Received 02/09/2001 09:59AM in 10:58 on line r7] for 4023 ~40RKSRV1 printed BOO81ASO on 02/09/2001 10:11AM * Pg 13/13
FE~-09-01 FEI 10:15 JACK GAUGHEN FAX NO. 7611495 P. 13
Received 02/09/2001 09:59AM in 10:58 on tine E?] for 4023 WORKSRV1 printed BOO81ASO on 02/09/2001 10:11AM * Pg 12/13
FES-09-O! FRI 10:14 JACK GAUGHEN FAX NO. 76!!495 P. 12
Exhibit B
Received 02/07/2001 06:10PM in 07:18 on tine [15] for 4023 WORKSRV2 printed B0081831 on 02/07/2001 06:18PM * Pg 2/9
F~-07-O1 ~Eb 18:17 JACK GAU~-HEN FAX NO, 78~1495 P. 02
BTANDARD AGREEMENT ~'OR THE SALE OF ~AL ESTATE ~S R~idt, ntial
PA LICENSED BROKER - ·
AGENT FOR SELLER ~ c ~ f~a ~.~ ~ &~ --~ PH 7 ~ t -~P~
ReGeivedFEB_OT_O102/OT/2001WEb 06:10PM18:17 in 07:ISjAcKon GAUGHEN[~ne [15] for 4023 WORKSRV2 DrintedFAx No.BOOB18317611495°n 02/07/2001 06:18PM ~P~/9.
Received 02/07/2001 06:1OPM in 07:18 on line [15] for 4023 WORKSRV2 printed 80081831 on 02/07/2001
FES-O7-O1 WED 18:18 J~OK G~UGHEN
06:18PM * Pg 4/9
FAX NO. 7811495 P. 04
Received 02/07/2001 06:1OPM in 07:18 on Line [15] for 4023 WORKSRV2 printed B0081831 an 02/07/2001
FEB~O?-01 WED 18:19 J~CK G~UGHEN FAX NO. 7611495
06:18PM * Pg 5/9
P. 05
ReceivedFEE~wOT_O102/0?/2001~jED 06:10PM18:20 in O?:18jAOKonG~;UGHE~Line [15] for 4023 WORKSRV2 printed FAX No,BOOB18317611495°n 02/07/2001 06:18PM-- ~v*PP~6/9.
Received 02/07/2001 06:1OPM in 07:18 on Line [15] for 4023 WORKSRV2 ~rinteQ B0081831 on 02/07/2001
FB~-O?-01 WED 18:21 JACK GAUGHEN FAX NO, 7611495
06:1SPM *p,P~ ~/9
Rece, ived 02/07/2001 06:1OPM in 07:18 on tine [15] for 4023 WORKSRV2 printed B0081831 on 02/07/2001
FEB~07-O1 ~ED 18:22 JAOK G~U~HEN FAX NO. 7811495
Received 02/07/2001 06:10PM in 07:18 on line £15] for 4023 WORKSRV2 ~rinted B0081831 on 02/07/2001
FEB-O7-O1 ~ED 18:23 JACK GAUGHEN FAX NO. 761149G
Exhibit C
REAL ESTATE AGENCY RELATIONSHIP ADDENDUM
TO THE AGREEMENT OF SALE
This form recommended and approved for, but not restricted to, use by the members of the Greater Harrisburg Association of REALTORS®.
DATE OF AGREEMENT OF SALE: ~ - 1 ~? - '-I *l , 19___
BUYER(S)/SELLER(S) have read and received a copy of the Disclosure Regarding Real Estate Agency Relationship and have
agreed as follows:
A) is the Agent of the SELLER(S) and shall be compensated
according to the Exclusive Right to Sell Agreement For Sale of Real Estate.
B)
is the: (Check only one)
] Sub-Agent for the SELLER(S).
] Exclusive Agent for the BUYER(S) and shall be compensated by the BUYER(S) in accordance with the Buyers'
Agent Employment Agreement.
[ ] Exclusive Agent for the BUYERS(S) and shall be compensated by the Listing Broker pursuant to the offer
of cooperation to BUYER(S) Agents as set forth in the Multiple Listing Service.
Exclusive Agent for the BUYER(S) and shall be compensated as follows:
Fax Agreement: This Document may be executed by the Buyer or Seller and transmitted to the other for execution by telefax.
When executed and delivered in such manner, this Document will be binding as though executed by the parties on the original
document.
I/WE CONFIRM THE AGENCY AND ACKNOWLEDGE RECEIPT OF A COPY OF THIS ADDENDUM AND THE
DISCLOSURE REGARDING REAL ESTATE AGENCY RELATIONSHIP.
SELLER:
SELLER:
DATE: ~' Ig-ff~
~DATE:
HAR#3 10/~
Exhibit
STATEMENT OF ESTIMATED SELLER'S COSTS
Date Prepared: "~ - ~O -- 5' ell Seller: ~g rJ/z)
Type Loan: ~ Property: ~_~'7-
Sale Price: q I "-/O. oo O Mortgage Amount:
The follow'ing ESTI~ATE is given so that the Sellers ~511 understand approxinmtely what costs will be deducted front the Gross Sale
Priee at tlie lime of setdement:
i. Broker's Comredssion:
2. 1 °/'o Transfer Tax ........................................................................ $
3. Nota~.' Fees .............................................................................. $
4. Deed Preparation ....................................................................... $
5. Radon Certification ..................................................................... $
6. Wood Infestation Inspection ......................................................... $
7. Private On-Lot Sewage System Inspection ..................................... $
8. Water Analysis Report ................................................................ $
9. Roof Certification .......................................................................$_
10. Hmne Warran .ty Program ........................................................... $
i 1. Hmne Inspection Fee ................................................................. $
12. Buyers Closing Costs ................................................................. $
13. Mortgage Discount of Plaeement Fee
( % of mortgage amount) ........................................... $
14, Settlement or Disbursement Fee ................................................... $ l O O
15. FHA/VA Fees ($400 average - Fees vary according to lender*) ............ $
16. Transaction Fee ........................................................................ $ 7 5.
17. OTHER: $
TOTAL ESTIMATED SELLING EXPENSES ............................................. $
*Above es ~timate includes a total of average fees for one Fl-f.4/X/A ln~ection, Flood Certification, Tax Service Fee, Notm'y and M/seellaneoas fees.
Total deductions at settlement are estirmtted as follows:
$ Eslimate~$elling Expenses
$ Bs~nff[e Payoff First Mortgage
$ ~t~t~ tf ~P~y~ ff AdditiomTd Mortgage/Liens
$ / TOTAL ESTIMATED DEDUCTIONS
Based on the above~'/mates, appmxhna/e proceeds at settlement nm)' be:
$ / Gross Sale Price
$ Less Total F~.hnated Deductions
$ Est/mated Proceeds at Settlement
The above figures Include payoff information provided by Sellers, and may not include payoff of all liens, cncumbranocs, property
taxes or special assessments. ,MI payoffs and/or release of ex/sting mortgages and liens will be deducted from your proceeds at
settlement.
UWe acknowledge receipt of a cop), of this Statement of Estinmted Seller's Costs, mid mtderstand and agree to the above estimated
charges.
Rev. 10/98
(Seller)
(Seller)
Exhibit E
ADDEHDUH "D"
CONSTRUCTION ACEEENENT
Harry S. Claypool & Sons Inc.
Party o[ the [Lrst part, IwrelnaEter called CONTRACTOR.
AND
Roger D. Lekberg
and
Deborah J. Lekberq
Party of the second part, hereinafter called OWNER
ITgN 1. SPECIFIC TE~H$ AND PROVISIONS OF TRIS CONTRACT
lA) Description at. ho.mi *
(S) hocetion~ ~O~ ~2~ Pin~husr~,San~ Pine Court
lC) Work or materials sho~n on plans or apecllicatlons attached hereto
or signed by the parties hereto:
(o)
Date of Bulling Permit
Work to commence on or bet'ore , and to
be complet~,d within 225 days therenft:.r or.os extended as
hereina[ter provided.
~E) Raslc Contract Prlcet'
Downpayment
Installmentst
First $
Second $
Tltlrd $
Fourth $
Fifth $
$ ,'35. O00
and drlve~ay $
as Per Bank's D~aw Schedule
(F) Special conditions or terms applicable to this contract:
ADDENDUM "D"
CONSTRUCTION ACREEMEN?
THIS ACREEMENT, made this
by and between
day of Uaw~h , 1999, ,
Harry S. Claypool & Sons Inc.
Party of the first part, hereinafter called CONTRACTOR,
AND
Roger D. Le.kber~ and
Deborah J. Lekber~
Party of the second parc, hereinafter called OWNER
WITNKSSBTII~ That the CONTRACTOR and the OWNER for the mutual considers:ion here-
lnalcer mentioned, Lntend[ng to be lo&ally bound hereby, agree as follows~
ITEM I. SPECIFIC TE]~MS AND PROVISIONS OF TRZ*~ CONTRACT.
(A) Description o[ home~ '
(a) Location; LOt ~24 Pin&husrt,Sand Pine Court
(C) Work or materials shown on plans or speclIicatlons attached hereto
or signed by tho parties hereco~
(D)
Date of Builing Permit
be completed within 225 days therenf:er or.as extended as
hereinafter provided.
Basic Contract Price;'
Oownpayment
Installmentsl
First
Second
?hlrd
Fourth
Fifth
Amount to be ~lthheld
from Fifth installment
pending completion of
e#terlor~ sradin&,
seeding, cement work ·
and drive.ay
, oo,oo .o
$ 45~0n0 *
$ a~ Per Bank's Draw Schedule
$
$
$
$
Special conditions or terms applicable to this contract;
Page _~ of _~ Pages
1TEH II. PAYNENTS
OVNER agrees to pay the contract price in the amounts set forth in
The dovnpayment shall be paid when thls. A&reement is signed and the
balance of the contract price shall be paid In five installments payable at the
several scares of completion listed below or in installments provided by pay out
schedule of construction mortgsRe lenderl
;
(a) FIRST INSTALL~4SNT
(b) SECOND IHSTALLN£NT
(c) THIRD INSTALI~ENT
(d) FOURTH INSTALLNENT
(e) FIFTH INSTALU4ENT
ITEH III. SCOPE OF ~ORK
CONTRACTOR shall furnish all the materials and perform all th~ ~ork for
the construction of the home described In Item I, as aho~n on the said dra~lngs
and described in the specifications which docunents are incorporated herein by
tn this contract. House to be completed in all respects for occupancy as a
residence in broom clean condition except as otherwise hereLn provided. Haterials
to be new and If exact items set forth on the specifications cannot be obtained
then CONTRACTOR shall have the right to substitute reasonably comparable items.
ITE~ IV. TIHE OF COHPLETION
The york to be performed under this contract shall COherence on or before
provided, however, this time shall be extended to the extent that delay in per-
prohibit the CONTRACTOR from performtn8 hereunder ~lth each day of such delay to be
added on to said completion date.
ITEM V. LOCATIHC D~ELLINC ON LOT
It shell be the responsibility and liability of the O~/NER to properl~
indicate upon the site where and how the dvellin8 shall be'situate, 8twins lot
corners, elevations, benchmarks, and other data necessary for th~a purpose; tf
OVHE# falls to so locate the dvellin8 prior to time CONTRACTOR commences ~orh, then
CONTRACTOR may situate the dwellin& in such a position as he deems advisable and
CONTRACTOR shall in no way be responsible or liable to O~NER for Improper location
o! the building or for any consequentLa~ results therefrom w~atsoevero
. ZT£H VI. CNANC£S IN ~ORK
O~/~ER may order, tn writin8, changes in the work when reasonable which
are timely made at leas£ 15 days before the scheduled work for that par: of the
in advance, shal! be paid for tn advance and the O~ shall pay CONTRACTOR in
addition thereto the sum of $ 200.0~or each change Got bis time and expense .in
ZT£H VI~. CORRECTION/ O~
The par:Les hereto aa herein set forth hereby agree to expressly fix and
limit the extent of CONTRACTOR'S liability :o OVN£R, their heirs and assigns got
any defective workmanship and materials in the construction o~ the said bouse by
CONTRACTOR and the terms hereof shall be controlling between the parties hereto in
lieu of ail warranties expressed or implied by la~ of reasonable good workmanshlpj
materials being free of defects and/or of residen~'belng habitable. ·
CORTRRCTOR uarranta and guarantees for the period of one year from the date
of completion or occupancy of the house ~hichever occurs first except as otherwise
hereinafter provided ~hat all materials to be furnished in the construction of the
said house will be of standard quality and free-from reaRonable defects, will be
Installed and applied tn a reasonable good and workmanlike manner conditioned upoq~.
and provided that O~NER delivers to CONTRACTOR a written list of all such delects
within said one year period.
The liabi'ltty of CONTRACTOR to 0VNER for defective matertals~ ~orkmanship
and installations under this warranty and guarantee is hereby limited to the correc-
tion or replacement by CONTRACTOR of the said d~r~f-workmanship or materials
in the discretion of CONTRACTOR and no other claims ~hatsoever shall be made upon
or required to be allowed by CONTRAC?OR and after said one year period CONTRACTOR
Is released from ali claims except those ~hicb are reasonable and wr/tten notice
of which is delivered to CONTRACTOR whitbin said one year period.
In the event that a veil ts involved as the source of ~ater supply [or
house CONTRACTOR ~ill have a well drilled and the pump installed but will not have
the water tested [or human consumption nor chemically nnalyzed but the supply will
be tested for a ceasonable period of time an~ the CONTRACTOR makes no guarantee
or representation as :o the quality or qu~htity of ~ater supply to'be obtained from
the veil and shall not be liable to OVN£R Ln any manner aa to the quality or quantity
Concrete basement ~loors and masonry basement ~alZs cblp and crack from
time to time and [umber will shrink and twist with no reasonable explanation £here-
[oru costs of replacement of aa'Id masonry ~ork and wood materials are prohibitive
floors or basement walls and shrinkage and twisting oE lumber and CONTRACTOR shat1
not be liable or obligated to O~NER therefore with any and ail claims for all such
of which CONTRACTOR receives ~ritten notice ~lthIn said one year period.
Vhenever natural topograpby of the said lot is disturbed settling
occur over a period of time; CONTRACTOR shaZ! not be liable for any such settling
but repairs and fill for same ahaZ! be the liability and responsibility o! O~NBR
aa well as the responstbtlityto carry the rata ~ater from the spouttng'a~ay from
O~NER shal! further exercise all reasonable'diligence in discharging and
problems and expense to CONTRACTOR tn correcting samej that upon takinS possession
shall notify CONTRACTOR~Ithtn l~ days thereof 6f all patent defects, otherwise any
obJeccluna thereto'a~d claims thereof by OVNER shall be deemed to have been ~alved
Stipulation against Liens shall be filed at the expense of 0VNgR. The
CONTRACTOR wfCh his request for [lnal payment~ upon demand of 0V~ER, shall deliver
to OHNgR a complete Release of a~l Mechanical blahs arising out of this contract
and if required shall furnish an affidavit that so [ar as he has knowledge or infer-
marion the Release includes all the labor and materials for which a Nechanlc~a Lien
could be flied but the CONTRACTOR may tf any subcontractor or supplier refuses toexecute
- Page ~ of ~ Pages
a Release of HecbanLcts Lien furnish bond with adequate security to indemnify
ITEH IX, ASSIGNMENT OF HORTGAGE PROCEEDS
It is agreed by the OVNER that the proceeds of any construction mortgage
are hereby assigned~ transferred and set over to cbc CONTRACTOR and payable to said
CONTRACTOR in accordance w~th the terms of payment as herein provided, in addition
£o such mortgage montee~ all other monies required to equal the purcbns~ price
shall at the option of the CONTRACTOR .be placed in escrow with the mo:tEaser or
any bank and the OWNER hereby directs~ ~uthori~es and empowers such escrow agent
to pay CONTRACTOR at the times and in the amounts specified in this con:tact.
ITEH Xo EHCUHBER PROPERTY
lc ts agreed by the OK~IER that he will not encumber the property upon
which :he house ia to be erected other than by a construction mot:gage to any
lendinR institution without first obtaining the written consent of :be CONTRACTOR.
IT~ xl. ~asuRAHc~
OWNER ·shall furnish by time el commencement of ~ork a standard bullder~'~'''
risk~ storm and £1re insurance policy with extended coverage and additional
O~ER shall provide on demand to CONTRACTOR the necessary endorsements on this
fire insurance policy so that O~NBR and CORTRACTOR~$1nterests as they appear are
~olntly protected until :he completion of contract and so that both are named
insured in all insurance policies and in the even: CONTRACTOR is not a co-insured
rights of subroEatton against CONTRACTOR are go be ~aived or released by insurance
carrier or at least every e[~ort ~ust be taken by D~NEg to have such subrogation
rights waived or released.
ITEH XII. UNDERGROUND IHPEDfHENTS
This c~niract on the part of CONTRACTOR does not contemplate removal of
any rock in making excavation for foundation walia~ sewage or water lines and In
the event rock is encountered the excavation costs for the necessary cutting and
excavation :brough the same shall be agreed upon before th~or~ continues but in
no even: shall the CONTRACTOR be obllEed to bear the extra costs of boyleE to re-
move such rockl OWNER shall be responsible and liable for any under, round plpe~
electrical lines~ ~ater problems~ wa:er seepage into basement~ springs or other
underground impediment or problems not known to CONTRACTOR at time hereo[l OVNER
shall pay for moving any excess dirt from premises and for any fill needed for Era~lngo
ITEH XIII. WAR ~LAUSE
In the event there ia n war~ or if any government agency either Federal~
State or any political subdivision thereof enac:.~.any legislation wbich restricts
or limits the CONTRACTOR so as to hinder or prevent h~m from performing In accor-
dance with the terms of this Agreement then in that even: the said CONTRACTOR
shall be relieved el further perle:mange and shall be entitled to payment [or the
work already completed unless o:het~iee herein provided.
ITEH XIV* SPECIAL AS~E$SHENT
I: ia mutually agreed by and between the'parties hereto that the O~NER is
to be char~ed with any special assessments or improvement bonds~ including :hose
in the [utur~ for work and materials included in the plans and apeci£ica:lons~ or
commenced or completed at the time of closing~ CONTRACTOR has no obligation ~hat-
soever in this regard.
ITEH XV. TITLE AND RIGHT OF TNGRESS~ EGRES~ AND REGRESS
It is a covenant of this contract that OWNER represents and warrants ghat
he has a good title tn Eec simple to the premises and free and uninterrupted access
to same and does hereby grant and convey to the CONTRACTOR~ Its successors and
assigns full and complete right of ingress, egress and regress and such occupancy
or possession of the premises hereinbefore described as shall be demanded by the
CONTRACTOR [or the aforesaid construction. Any refusal thereo~ is a default by
the OWNER whereupon t~e full amount of the contract price ~hall become immediately
due and payable. OilIER f~rther represents and va:rants proposed construction to
conform to all zoning and building requirements.
- Pace 6 of 6 Paee~ -
IT~-M ~VI. PEFAULT
In the event that the ONNBR shall default tn the payments hereinbefore
set forth or in the event of any default on his part in the other provisions herein
then and in that event O~NRR does hereby authorlse and empower any Attorney or
Pro:honorary o£ any.Court of Record of Pennsylvania or ~,Isevhere to appear for
and enter Judgment against said OWNER for the unpaid balance of the contract
price due CONTRACTOR with or without declaration with costs of suit, release of
errors, without stay of execution and with ten percent added for collection fees;
and the said OWNER waives the rlsht of inquisition on any real estate that may be
levied upon to collect this debt and. does hereby 9oluntarliy condemn the same and
authorize the prothonotary to enter upon the execution voluntary condemnation and
the said OVN£R does further agree that sal~ estate ~ay be sold on execution and
does hereby waive and release al! relief from any end all appraisements, stay or
exemption laws of any state now in force or hereafter to be passed.
Upon the confession of Judgment for the whole am~nt of balance due, as
hereinbefore provlded~ a copy of this agreement certified to be a correct copy
by the said CONTRACTOR or agent thereof, when filed with such confession of Judg-
ment shall be sufficient warrant for the confession of Judgment, The remedies
herein provided shall be in addition to and not In substitution of the rights and
remedies which ~ould othe~l~e~'~a-vested in CONTRACTOR Under the terms of the
AGreement or othe~tse all of which rights and remedies ere specially reserved--bY'%.
CONTRACTOR and the failure to exercise the remedies herein provided shall not
preclude the resort to any appropriate remedy nor shall the use of the special
remedies hereby provided prevent the subsequent or concurrent resort to any other
remedy which by law would be vested tn the CONTRACTOR for the recovery o£ damages,
monies due or otherwise in the event of a breach of any of t~e covenants by the
O~NER.
ITRN XVII, INDEPENDENT CONTRACTOR
CONTRACTOR shall be considered an independent. CONTRACTOR in respect to
that part of the work tn the erection and construction of the said bulldLn& ~blch
l.t has undertaken.to do and perform,
1TEH XVlll, OVN£RSHIP OF NATERIALS
It is mutually agreed that all materials delivered upon the said preml~es
shall be regarded as the property of CONTRACTOR until paid .for by O~NER andshall
vandalism and malicious mischief shall be the liability of O~NERo
iTEH IIX. FINANCINC, PRRNITS, ~LANS ~N~ SPECIFICATIONS
It shall be the eesponsiblli:y of the O~NSR to arrange for and to secure
the financing necessary for the construction of the home and to secure and pay for
any and all building permits, fees or licenses that are required. It being under-
stood that CONTRACTOR will furnish ell necessary plans and specifications for the
homo and shall assist O~NER in the securing of financing and all necessary permits
in whatever manner it can. O~NER at any time on demand of CONTRACTOR must estab-
lish satisfactory proof of ability to pay contract price or balance due.
IT£N XX. STOPPACE OF WORK
In the event the work to be performed by CONTRACTOR is stopped by any
public authority not due to the fault of CONTRACTOR for a period of 30 days or a
suit in equity is instituted asking f~r an injunction a&alnst the work involved
or the work is stopped through any act or neglect of the OVNER for a period of 10
days or should the OVNER fail to pay thoCONTRACTORany payment within 20 days after
it ts due then the CONTRACTOR upon' 15 days written notice to O~NER, and the matter
not being corrected in the interim, may stop work and terminate the contract and
recover from the OVNER payment for ali mate:tale delivered end work executed in-
cluding his costs thereon~ his overhead and lO percent of both for his pro[lc
liquid{~ted damageSo
ITEN XXI. OWNER*S LIABILITY INSURANCE
O~IER shall be responsible for and et his option may maintain such
fnsurance as will protect him item his co~tin~ent~.t~b~L~ty to others for damages
because of bodily injury including death which may eris~ from operations under
this contract.
- Page ~ o~ ~ Pages -
ITE~f ~II. INCONSISTkN~;/' Ti~P~S
Yerms and conditions set torth on the specifications sod drawings
re[erred to shall Fontrol in the event el any Inconsistency vlth uny o! the ocher
Lerms or conditions of tbie gnntrectl hand Hr[£1nB ~n!tLslsd shsl! control over
typed and printed ,luatrnrl Cypnd matters shall control over printed matters.
IT~N XXlll. HOT,ICE ~ 'l
Notice to either potty ns betel, provided shall be deemed re be given
to the other party*l day a/tar properly*mailed by certified mall postage prepaid
addressed to the other p~r~y at tbs address hers[obeYers stated or addressed to
the last knovn residence.ag the othe~party,
ITt~l XXl¥. LINITATIOHS O~ CONTRACTOR*S LIABILITY FOB D£YECTIVE ~JOaANSHIP
AND HATKKIALS
ONN£R hereby expressly under, tends sod egrrrsthst CONTRACTOB'S liability
to O~£R ih limited ss hereinbefore provided sod applies solely to reasonable
defects in uorkmoflship and m~teriols supplied under the terms of ~his AKreem~,nt
and does not extend to or spply to any daflmKe from any el the follfl~fng c~usc, s ..~.
or conditLons~ fife, storm, lightning, M~scher) landslides esrch movement, blnk
holes, termites, Lnsects! floods, Yster seepage! shrinkage and tv/sling el !u~-
ITEH XXV. I'ARTI£S
~herever'used herein singular s~all include plural and plural shall
include singular. CONTRACTOR and O~N~R wherever used,herein shall Include
their hPlrso execators~ administrators, successor& and ~sslgns. Il this instrument
bill!les and all covenants herein of the parties shall apply both .Jointly and
severally. This A~reement sh~ll be e£fec~ive upon buiflg signed by ail el the
parties hereto." ..
IH VITNE$$ ~IgREOP~ the patties have hereunto sec their hands shd seals the
dsy and year llrR'ab~w written.
MITNESSt
- Pas. _6 of _6 PAS.. -
Exhibit F
STATEMENT OF ESTIMATED SELLER'S COSTS
DatcPrepared: ~-J -S-q e/ Seller: bi ~am.~,~ .~, C ~.t~Foot_ o- ~j
Sale Price: ~ ~ ~ O, o~ 0 Mo~gage ~nount:
~xe follo~g EST~ i$ Sven ~o ~t ~e SeBors ~ ~de~d appro~nmtely ~vhat costs ~ be deducted Rom fl~c Gross
Price at ~e ~m of seffiement:
2.
3.
4.
5.
6.
7.
8.
9.
10.
iI.
12.
13.
14.
15.
16.
17.
Broker's Coanrdssion: ~-' % ors ~g 0, 00~.. .............
1% Transfer Tax ........................................................................ $
Notary Fees ..............................................................................
Deed Preparation .......................................................................
Radon Certification ..................................................................... $ '~-
Wood Infcstation Inspection ......................................................... $
Private On-Lot Sewage System Inspection ..................................... $
Water Anal)sis Report ................................................................
Roof Certification .......................................................................
Honm Warran .ty Program ............................................................
Ilomc Inspection Fcc ................................................................. $
Buyers Closing Costs ................................................................. $
Mortgage Discotmt of Placement Foe
( % of mortgage amoun0 ........................................... $ "-
Settlemem or Disbursement Fee ................................................... $ - -
FHA/VA Fees ($400 average - Fees v;ay according to lender*) ............ $
Transaction Fee ........................................................................ $ 7 ~;. 041
O'I'HER: $_
TOTAl. ESTIMATED SELLING EXPENSES ............................................. $ ti ~, ~-'C50 ~
estim;de includ;m iA total of average l'ecs lbr one FHA/VA Inspection, Flood Certification. Tax Service Fcc, Notary mid Miscellaneous fees. '
Total deductions at scttimncnt are estimated as follows:
$ Estimated Sclling Expenses
$ Esthante PayoffFirst Mortgage
$ Estimate Payoff Additional Mortgage/Liens
$ TOTAL ESTIMATED DEDUCTIONS
Based on ll~e above estbuates, approxinmte procced~ at settloment may bo:
$ Gross Sale Price
$ Lc,ss Total Estimated Deductions
$ Estimated Proceeds at Sottlement
The above figures include payoff infom~ation provided by Sellers, .-nd may not include payoff of all liens, encumbrances, property
t,.xes or special assessments. Ail payoffs and/or release of existing mortgages and liens willbe deducted from your proceeds at
sot0.ement.
IRVe acknowledge receipt of a cop), of tiffs Statement of Estimated Seller's Costs, and tmderstand and agree to tho above estimated
charges.
Wimess:
.(Seller)
Rev. 10/98
Exhibit G
A. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Saidis, Guido, Shuff & Masland
C. NOTE:
D. NAME AND ADDRESS OF BORROWER:
1. __FHA 2. __FMHA 3..~_~ CONV. UNIN$,
4. __VA 5. CONV. INS.
6, File Number I 7. Loan Number
I
TI99-182
SETTLEMENT STATEMENT
This form is furnished lO give you a s/a/em/ltl of oct//al settlement costs. Amour/ts paid to and by the settlement agen/ are $11owtt.
Items marked "(P.O.C.)'werepaid outside the closing; they are shown here for btforntationol purposes and are t/et itwluded in the totals.
Roger D. Lekberst, Deborah J. Lekberg, 6108
E. NAME, ADDRESS AND TIN OF SELLER: Pamay Development: Co,, Inn.
F. NAME AND ADDRESS OF LENDER: N/A
G. PROPERTY LOCATION:
[~ Property Services Received
or
H. SE~LEMENT AGENT: Saidis, Shuff & Masla~d
PLACE OF SETTLEMENT: 2109 Market Street
Camp Hill, PA 17011
I. S~7TLEMENT DATE: 04-09-99
lot), GROSS AMOUNT DUE FROM BORROWER:
101. ConUact sales price 170,000. O0
102. Personal property
103. Settlement charges to borrower(line 1400) 2,966.38
104.
105.
Adj#stments for items paM by seller in advance
106. City/town taxes to
107. County taxes 04-09-99 to 12-31-99 100.06
108. Assassmenta to
109. School 4-9 to 6-30-99 126.28
110.
111.
112,
113.
114.
115.
116.
120. GROSS /JffOUIVT DUE FROM BORRO~R 173,192.72
. ~ .200. ~AMOUNTE:FAIDBY/OR,.It~.BEtIJ~ O~BORROWER..? ·
201. Deposit or earnest nloney 1,500.00
202. Principal amouat of new loan(s)
203. Existing loan(s) taken subject to
20~.
205.
206.
207.
208.
209.
Adjustmetgs for i/e/ns unpaM by seller
210, City/Iowa taxes lo
211. County taxes to
212. Assessments to
213.
214.
215.
216.
217.
218.
219.
TOT/J3 PAID BY/FOR
220. BORROWER 1,500. O0
301. Gross amoum duo from borrowor(lbte 120) '[73,192.72
302. L~ss mounts paid by/for borrower(line 220) 1,500. O0
303. C~SH ( X FROM) ( TO} BORROWER 1.7't, 692.72
Lot #24 Sand Pine, Pinehurst Phase V Mech~nicsburg
TIN #251694606
Pennsylvania 17055
400. GROSS AMOUNT DUE TO $1~IZER:
401. Contract sales price 170,000.00
~02, Personal property
403.
404.
405.
,~djustmen/s for items paid by seller ln advance
406. City/town taxes to
407. Coun~ taxes 04-09-99 to 12-31-99 100.06
408. AsscssmnlRs to
409. School 4-9 to 6-30-99 126.28
410.
411.
412.
413.
414.
'415.
416.
420. GROSS 3MOUNT DUE TO .q'.~FY.~.R 1.7 0,22 6.34
,,~,,~? ,, 5~0. ~UCTIONS IN.~OUArf DUE TO
501. Excess deposit(see instruct/o/ts)
502. Scnlcmcnt charges to sclmcr(llne 1400) 3 9,5 51.4 9
503. Existing loan(s) taken subject to
504. Payoff of first mortgage loan PNC Release 88,400.00
505. Payoff of second mortgage loan
506,
507.
508.
509.
Adjustments for iten~ unpaid by seller
510. City/town taxes to
511. County taxes to
512. Assessments to
513.
514.
515.
516.
517.
518.
'519.
TOTAL REDUCT/ON AMOUNT
520. DUE SF. II.RR 127,951.49
601. Gross amount due to s~ger(line 420) 1.70,226,34
602. Less reductions in amouat due salJer(h'ne 520) 127,951.49
60$.C~SH ( ~ TO) ( FROM) S~'Y~'.~:.~ 42,274.85
BASED ON PRICE $
Division of Commission (fine 700) as Ibllows:
701. $ to
702. $ to
703, Commission paid at Setticmcnt
704.
SL~iTLEMENT CHARGES
PAID FROM
- BORROWER'S
FUNDS AT
Sh IulLEMENT
PAID FROM
SELLER'S
FUNDS AT
SE'I']?LEM~NT
801. Loan Origination Fee
802. Loan Discount %
803, Appraisal Fcc to
804. Credit Report to
805. Lender's Inspection Fee to
806, Mortgage Insurance Application Fcc to
807. Assumption Fee to
808,
809.
810.
811.
81'l.
813.
81,;.
901. lnmrcst from to ~ $ /day (-days)
902. Mortgage Insurance Premium for months to
903. Hazard Insurance Premium for I year to ((Buyer))
904.
905.
1001. Hazard Insurance months @ $ per month
1002. Mortgage Insurance months @ $ per month
1003, City property taxes months @ $ per month
1004. County pwperty taxes months @ $ per month
1005. Annual assessments months ~ $ per monlh
1006. months @ $ per raouth
1007. months @ $ per month
[00g. molFIls ~ $ per utonl]l
1101. Settlement or closing fee lo
1102. Abstract or lille search to
1103, Title examination to
1104. Ti0e insurance binder to
1105. Document preparation to
1106. Notary fee to
1107. Attorney's f~e to
(includes above items numbers;
1108. Title insurance to
(includes above items numbers;
Saidis, Shuff & Masland
Saidis, 8huff & Masland
Eckert Seamans Cherin & Mellott
Robert C, Saidis, Agt.
1109. ~ndcr's¢over~c $ N/A
lllO. Ow~r'sco~rage 1,060.88 $ 170,000,00
1111. Payment to Waggoner Frutiger & Daub, Escrow Agts
1112, House Review Plan to Cathy Claypool
1113. Income Tax Escrow to Pamay Development Co., Inc.
50.00
4.00
1,060.88
200.00
3,400.00
100.00
34,000.00
1201. Recording fees: Deed $ 25.50 : Mortgage $ :Release $
1202. City/county tax/stamps: De, ed $ 1700,00 : Mortgage $
1203. State tax/stamps Deed $ 1700.00 : Mortgage $
1204.
1205.
14.00
25.50 14.00
1,700.00
1,700.00
1301.
1302.
1303.
1304,
1305.
1306.
1307.
1308.
Initiation Dues to Pinehurst Homeowners Association
Dues 4/99 to 5/99 to Pinehurst Homeowners Association
1999 Cty/~h~p Tax to Kathryn Fetrow
Record Stip v. Liens to Prothonotary
100.00
16.00
10.00
137.49
1400. TOTAL SCITL~MENT CHARGE8 (enter on lints 103, Section .r and 502, Section
2,966.38 39,551.49
FAST START DISCLOSURE and RELEASE OF LIABILITY
AND HOW come the Owners who are now m possession of or about to acquire an u.nlmproved lot, more parhcu)ady
described and known as Lot ~*._~.,c[ , Sheet/Road, SA~VL~ ~'/,~- t~,'7, - ,
in the Development of _~u,,[ 5~' ,
a~d evidence their des~e to comme'~ce consffucflon on the above referenced pmpe~ prior to the approval and recor-
dation of a construction permanen~ mortgage, a procedure commonly known as "Fast
The undersigned acknowledg~ that Ha~ls Savings Bank does not make pay wa~anties, rep~esentatiofls or
guarantees ~s to the pe~orma~ce ~ Owner or Comractor nor as to the financial responsibility of ei~er. The under-
signed hereby agree to release He~ls Savings Bank ~rom any and all claims relating to or arising Eom their
to proceed under the "Fast Start" ~rocedures. The Owners acknowledge that they did not rely on the Contractor's
participation in the "Fast Sta~t" program and Contractor acknowledges that It did not ~ely on ~e fact that the Owners
have applied to Harris Savings Bad~ for a construction mort~age es a basis for enteHn~ lpto a consffucflon contract.
The undersigned have finaJEe(.~ ali of the bufldins specifications and house plans and have entered into a
construction agreement on the ~: day of . , 19 . The undersigned
are aware of Harris Savings Bank'~standard schedule of advances ~d acknowledge that no ~unds will be disbursed
pr or ~o mor~age settlement and ~co~datlon.
[( is [udher understood ~d agreed that ii co~uctlen s~ prior [o the mo~gage reco~d~lon there ~e no ~suranc~
or guarantees wha(soever and ~er~ have been no ~epresentattons that Harris Savings Bank will approve a manage
~oan in e~ amount and no such e~ectatlon exists. Onl~ a final written moH~age commitment afeared ~nd a~epted
will bind Harris Savings Bank jn al;ir way, The undexsigned acknowledge that ther~ is a risk that a mo~gage loan
may not be approved, .'
in consideration of '
Ha~ 5evm~ B~k agreeing to accept a "F~t Sta~" moffgage loan application the under-
signed hereby release and ~gree ~o Indemn~y and hold H~rris ~auings Bank harmless from any and all claims
direct or co~quential arising fro~ the~ decbion to commence construction pr[or to ~ecordaaon of a first mor~age
~i~n or gram any claim ~ising out o~ the tronsa~ion from whatever cause including the failure of Harris Savings Bank
to approve a first mo~gage loan ~pplicaaon for the u~dersigned.
You acknowiease that Herris~ ~uuings Bo~k ~Jll require the issuance o~ a rise insurance bJ~der (mithout
~ny mechanl~ lien ~ccption) p~or to the "Fast ~tart~ along with a stipulation against liens and any other ti~
compan~ requirements an~ preco~itions deemed ~ecessary to insure Harris Savings Bank's first lien position after
loan settlement. The undersigned .~gree ~ a condition o~ ~y mortgage to comply with any an~ ail requ~ements
o~ their 5electe~ title insurance co~pany ~or the I~uance of the title Insurance policy (without mechanl~ lien excep-
/ion~ at ~he time of mor~age settk~Jment and ~ecordetlon. Said requirements may be but are not limited to:
A bring down title search Im~,ediately prior to settlement evidencing that the prope~y b ~ree and cigar o[
liens and encumbrances.
The undated acknowJedg~ a receipt of a copy o~ this Fast Start Disclosure and Reie~e o] Llabflg~
Ihis ~ , day o~~ ~ r,'/ , 19 ~Y , being aware o~ the rls~ involved
and having been advised by Harrl;~ 'Savt6gs Bank to proceed with ex~eme caution.
AND NOW this dat~ immediately above set Jorth the pa~es hereto agree to the t~rms and conditions, represea-
Y
latlons, promises aod agreements
~" / Owner
herein contained intending thereby to be legally bound.
Conb*actor
Owner ':"-
Contzactor
Exhibit H
Received 02/09/2001 09:59AM in 10:58 on Line [7] for 4023 tJORKSRVI printed 00081A80 on 02/09/2001 10:11AM *Pg2/13
F£~-09-01 FR) 10:08 JACK GAUGHEN FAX NO, 7611495 ,
?02
ExcLUsIv~.~ PAGHT TO SELL AGREEMENT :FOR SALE O1~ ~L ESTATE
_.f~..~_~ ......... ~__-- ...... · ..... =__~__~d
............... [~ _~ ~ r~ ................. .
Received 02/09/2001 09:59AM in 10:58 on ~ne [7] for 4023 WORKSRV1 printed BOO81A80 on 02/09/2001 lO:11AM * Pg 4/13
FE~-O9-01FRI 10:08 JACK GAUGHEN FAX NO, 7611495 P. 04
MT; 52 0~D: XD: 05I~5/99 Orig Price; $ 60000 [
7 Remarks: LOTS ~ ~617; Sl~; 613; 616; 615-~m&~,608'~T~L~YLA/A~
DRIV~ $65,000 ~CH. LOTS 606;~ 605; ~ ~ 600;
SA Show InSet: C~LL LIST OFFICE
BA Show I~s~r: CA~L LIST OFFICE
List Offioe: GAUG1 Na~e: JACK GAU~HEN Phone: 761-~800
EXIBIT I
Received 02/09/2001 09:59AM in 10:58 on line [7] for 4023 UORKSRV1 printed BOO81ASO on 02/09/2001
FE,,BT-09-O1FRI 10:08 JACK GAUGHEN FAX NO. 7611495
I 7..
-j
P~eceived 02/09/2001 09:59AM in 10:58 on Line [7] for 4023 WORKSRV1 printed BOO81ASO on 02/09/2001 10:1lAM * Pg 6/13
E~B-09-O! FRI 10:09 JACK GfiUGHEN FA× NO, 76~495 P, 08
. ,~ ~ , :
~su
Received 02/09/2001 09:59AM in 10:58 on Line (7] for 4023 WORKSRV1 printed 80081A80 on 02/09/2001
FEB-O9-OI FRI lO;lO JACK GAUGHEN FR× NO. 7611495
Rer. e~ved 02/09/2001 09:59AM in 10:58 on l~ne [7] for 4023 WORKSRV1 printed BOO81ASO on 02/09/2001
FEB~09-O1 FEI 10:11 J~CK GAU~HEN F~X NO. 7611496
Received 02/09/2001 09:59AM in 10:58 on Line £?] for 4023 WORKSRV1 printed BOO81ASO on 02/09/2001
FEB.'-O9-O1FRI 10:12 JACK GRUGHEN FAX NO. 7811495
Received 02/09/2001 09:59AM in 10:58 on [ine [7] for 4023 ~ORKSRV1 printed BOO81ASO on 02/09/2001
FE~09-O1 ?RI I0:~3 J~CK GAUGHEN FAX NO. 761149~
474
Received 02/09/2001 09:59AM in 10:58 on line [7] for 4023 t~ORKSRVl printed BOO81ASO on 02/09/2001
FE~-09-O1 FRI 10:14 JACK GAUGHEN FAX NO. T611495
KI~I(~$W'OOD ~
~DDH~ TO AOR~ OF SALH
(~ ~ ~pt ~ 81S ~d 616)
lO:11AM * Pg 11/13
P. 11
$.
EXIBIT J
· 997 - Sale of Let
KINGSWOOD IIIB
ADDENDUM TO AGREEMENT OF SALE
(All Lots Except Lots 615 and 616)
2.
3.
4.
5.
6.
BetweeuZIMMERMANBUILDINGCORPORATION($eIIer)SUd · ~',~-44_#.~--~,:~..~.t~.~..,/~. ~'~..'~.t.,,,.-~ (Buyer),
-'7'? for tot (-,/.'/ . niB, mm an Sel er and uyer agra:
Seller's obligation as to transfer tax Shall be limited to $ ~7~ ~ . Buyer shall indemnify and hold Seller
harmless from any further obligation, and this clause shall survive suttlement.
Buyer aeknowledge~ receipt of the Public Offering Statement for Kingswood, a planned community, dated August 20, 1997.
Membership in the Kingswood Homeowner's Association is mandatory. An initiation rea of $100.00 will be collected at
settlement.
The recreation area referred to on the Final Subdivision Plan at Plan Book 55, page 93 has I~.~n eliminated and has been
developed as building lots, and the aeneas easement between lots 220 and 221 has been eliminated.
Buyer shall be l~sponsibln to plant at least ~.. shade trees, within five (5) feat of any Lot line along a street, subject
to approval as to type, size and location by the Architectural Review Comt~ttea.
Buyer acknowledges and agrees that any constroction, improvement or movement of sail on the Lot is under and subject to
the restriction and regulation of the Cumberland County Soil Conservation District. Buyer shall be responsible for
constructing and maintaining erosion and sedimentation controls in aeeordsnce with the approved plans. Buyer hereby
indemnlf~es and holds harmless Seller, its successors and assigns, from any loss, damage or claim that Buyer may have or
incur as a result of the Buyer*s failure to construct and maintain proper erosion and sedimentation controls. This clause shall
survive settlement.
Builder, to be selected by Buyer and approved by Seller, shall be obligated to pay n five percent (5%) commission to Jack
Gangben Realtor on the house and lot value. This restriction shall be'binding on the grantea, and their successors and assigns
until the initial house is built on this Int.
Buyer shall obtain approval of the building plans prior to settlement on the lot for the dwelling house to be built on the lot
showing the 2,500 square feet of finished living area (2,200 .square feat for a ranch) and the exterior design, materials and
colors.
Witne.~:
ZIMMERMAN BUILDING CORPORATION
By: ~+/; '~'~-'~ . ~',~,~.-=.....
Date:
Witness: BUYER:
Date:
EXIBIT K
20 4ay of February ,3.~9, ~y=n4
Harry CLaypool & $on~ In~. e
Mechanicsburg,~A
~scr~p=~on o~ home: Brick Fron~ 2-Story Home
with Three car garage
Location:
Lot% 614 3713 Leyland Drive ,Mechanicsburg,PA
Kingswood
(g) ~ks~C conCr~t¢/:: ,l:'ur~l. oe $ .300,700 · 00
'* 23,070.00 :'.
AS PER ~a~v'R', .~ D~AW SCHEDULE
$
ThOr4
Z~ *rZZ- SCOPE OF
CO~R shal~ ~n no ~aX be re~p~fl~b~e or l~able Co O~R ~o~ tmP~°pe~ IoCaC~
the bgldtni or io~ any conaequenci~ ~ult- ~he~e~rom ~h~oever.
c~atzucC~ Involved ~s to b~ done and whl~ ~ea not ~r~a~y alCeF the
(3)
i
.:, .I~ IX. AS$IG~N~ OF ~RTGACE P~EDS .
~ no Ivenc shall the C~O~.bt ob~ed ~o b~c the a~a com~s of ~v~ c,
c~flced or co~Z~ed a~ the e~me
~ ~e ~a~ CO~O~ ~r ~n~ ~eceof, ~hau f~ed ~ ~u~ con~e~o~on Df
(6)
· · AND Z~LT~CRXAL~
AcC o~ God o~ acc~ b~ond ~e cofl~o~ oE ~H~R.
~nclud& m~. CO~O~ and O~ ~herev~r ~ed h~re~ sh~l ~nclude ~ho~r
EXIBIT L
STATEMENT OF ESTIMATED SELLER'S COSTS
Date Prepped: Seller: ½_ ~_~J~2- ~-~_ ~l_~1]y2~20[
Sale Price: ~ r>~/ 7 m a Mopgage mnount: '
~e folloxdng ESTheTE is given so tlmt flxe Sellers x~ ~ders~d approxinmtely what cos~ ~411 be deducted Rom 0xe Gross S~e
Price at rite ~c of seffiement:
i. Broker's Co~mission: ~' %of$ 5 0~/~ ~~ ............... $
2. 1% Tr~ffer Trax ........................................................................ $
3. No~ Fees .............................................................................. $
4. Deed Prep~afion ....................................................................... $
5. ~don Centurion ..................................................................... $
6. Wood I~tation ~specfion ......................................................... $
7. Private On-Lot Sewage System ~pecfion .....................................
8. Water ~ysis Repo~ ................................................................ $
9. Roof Ce~caffon .......................................................................
10. Home Wam~ Pro~ ............................................................ $
11. Home hk~ccdon Fee ................................................................. $
12. Buyers Cles~g Costs ................................................................. $
13. Me,gage Discmmt of Placement Fee
( % of moagage amotmt) ........................................... $
14. Senl~ment or D~sbursement Fee ................................................... $
15. ~VA Fees (5;400 average - Fees v~' accor~g to lender*) ............ $
16. Tr~mcfion Fee ........................................................................ $
I. 7. OT~R: .___ $_
TOT~ EST~TED SELLING E~ENSES ............................................. $ /
*Above esfimat~ includes a toted of .vcrage l%es tbr one F~A Inspection% FI~ Ccffificafion, Tax Sm'ice
Total deductions at settlement are esfinmted as follows:
$ Estimated Sell/rig Expenses
$ Esthnate Payoff Fh'st Mortgage
$ Estimate Payoff Additional Mortgage/Liens
$ TOTAL ESTIMATED DEDUCTIONS
Based on the above estimates, approximate proceeds at settlement maybe:
$ Gross Sale Price
$ Less Total Estimated Deductio~
$ Estimated Proceeds at Settlement
The above figures hxclade payoff information provided by Sellers, m~d may ant hxclude payoff of ;ill liens, encmnbr,~ccs, property
taxes or special assessments. All payoffs and/or release of existing mortgages and liens will be deducted from your proceeds at
settlement.
I/We acknowledge receipt of a copy of this Statement o£Estimated Seller's Costs, and mxderstand and agree tb thc above estimated
(Seller)
(SelleO
Rev. 10/98
EXIBIT M
. 7 A. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
ROBERT E. MYERS, ESQUIRE
27895
· TYPE OF LOAN
SETTLEMENT STATEMENT
Itentf marked "(P.O.C.)'were pald otttslde the ctoshlg: they are shots here for inforwtatlonal purposes attd are trot hwhtded hi the tott~l.L
O.N^ME^NG^ODaESSOFaOnROWEa: Fattest E. Adams, Linde B. Adams
202 Cherokee Drive, Mechanicsburg PA 17055
E. NAME. ADDllESS AND TIN OF SELLER: Zimmerman But ] di ng Corporati on
F. NAMEANDAODRESS OFLENDER: tIARRIS SAVINGS BANK
Second and Pine Streets
tlarrlsburg, PA 17101
o. PnoPEnTYLOCATION: 3713 Leyland Drive Hechanicsburg
PA 17055
or
H. SETTLEMENT AGENT: Robert E. Myers, Esqui re
EL*CE OF SETnEMENT: 100 01d York Road
New Cumberland, PA 17070
l. SETTLEMENT GATE: 04-1g-gg
ItlO. GROSS AMOUffI' DUE FROM BORROWER:
101. Contract sales price Lot: ~5,000,O0 -
102. Personal Proper~y
103. Scltlemcnt charges to borrower(line 1400) 9,302... 03. ·
104.
105.
Adjustmettts for items paid by seller itt adrance
,o~. ct,y/tow. ,axes 04-19-99 to 07-01-99 28.06
,07. county tax. 04-19-99 to 01-01-00 24.21
109.
110.
,2o. Gnoss Auovm' ou~ FROU ~O~O,V~R 7~,'~"~%--0 7
201. Deposil or earnest money X__[~(J0 o
202. Principal amount of new loan(s) 255,000 w/
203XI~gg~FgCI)II4~X~X)~I~.gI, I~K 29,300 be4 n,,~
2O4. d:Lsbursed at: t:he time hereo£ 29,300.00
205.
206.
207.
208.
209.
Adjttstntents for items unpaid by seller
210. City/town luxes lo
21 I. County taxes lo
213.
214.
2{6.
217.
218.
219.
7'OTAL PAID BY/FOR
~20. BOItROWER 30,800.
301. Gross amou,,t duc ram borrowcfftine 120) 74,3.54,
~02, Less amount, paid by/Iht borrowerfllne 220) 30,800, O0
303. CASlf ( X FROM) ( TO) BORROWER 43,554.30
]~,:,;,¢a,a.;&SUblMAE¥ oP ~EtI.LeR'~ TRANSACTION
4~. GROSS AMOUr' DUE TO SEIJ. ER:
401. Conlract sales price Lot 65 ~O~O.OO
402. Personal pro~y
403.
4~.
405.
~djnttmttttt for item~ poid by tt#tr in od~nct
4~. City/town luxes 04-[9-99 m 07-0[-99 28.(
4o~. coumy ~. 04-I9-99 ~o 01-0[-00 24.;
4~.
410.
411.
412.
413.
415.
416.
420. GROSS AMOUr' DUE 1~ ~EI~'R 6 5.05 ~ _ ? 7
,~;i~.;~,(,',h.'~O~.,[ ~D~CITON$ IN dMOU~' DUE TO
501. Excess de~silf~ee instr.ctltm.O
502. ~eldement charges Io s~Oerfline 1400)
503. Extsling loan(s) laken subject to
5~. Payoff of firsl softgage Io~n
505. Payoff of second mortgage Io~n
5~.
507.
508.
5~.
ddju~tmtnts for item~ tmpald by ~eller
513.
514.
515.
516.
517.
518.
519.
520. DUE SE~ER 6 J ,084.38
· r~:.:. ,~ . · ~: ~. ~Sll ~T S~77~ME~' TO/FROM SEH~R
601. Gross nmounl due to aellcrfli.e 420J .........
60L ~. reduetl0n~ In amount due ~ellefflint 520J
'dO3. CASll ( X TO) ( F~OMI SEIJ.ER 23,9~7'.89
SETTLEMENT CIIARG 'ES
BASED ON P~CE $
DiVision of Commission (line 7~) as follows:
701. $ to
702. $
7~.
802. Loan Discount
803. App~lsal F~e to
8~. Credit Report
805. ~uder's In$~cfion Fee
aOa. Underwz~t~ng Fee
~o9. File stipulation
~10. Tax Service
811. Application
812. P~ood Ger~f~cntXon Fee
81~.
814.
90[. Interest from 4/19/99to5/1/99 O $40.04 /day ( 12 -days)
~o~. u,~,r, t,,,,~,,,== m~.,~.n, rot 1 y=.r ~o (iST YEAR)
9~.
905.
1001. IIazard Insurance 2 months @ $ 31.42 per mouth
1002. Mortgage Insurance monlbs @ $ per monlh
1003. City property taxes montbs ~, $ per month
[004. County property taxes months @ $ per mouth
1005. Annual assessmenls months {~ $ per month
1006. months @ $ per month
1007. momlm @ $ per month
1008. months @ $ per month
PAll) FROM PAll) FROM
BORROWER'S S I.'.I.LRR '.~
FUND,~ AT FI.IND.~ AT
S F.I'YLF. M F, NT
5,100.00
210.00
125.00
i0.00
94.00
26.00
480.48
62.84 ',,
135.96
II01. Setdemeut orclosing fee to
1102. Abstract or title searcb to
1103. Title examinetion to
1 IO4. Title insurance binder to
1105. Document preparation Io Ha'r'r'4.~ R~a~r'In~ Rank
IB~. ~o~a,,/ rcs ,0 CASfl 8.00
1107. ^Oomey's fee to
(ittchtde$ abo~'e Jtent~ nttt,ber$; )
HO8. Title insurance to ROBERT E. ~YERS, ESQ.
(htchtdes aboge item~ nutnber$: )
I1~. Lcndc~'s cowraga $ ~, 000. O0
I 110. Owner's coverage $
un. Yransact~on fee to Oack Gaughen Realty ]~.00
m2. THLE INSORANEE ENDORSEMENTS ~o ROBER~ E. ~YERS, ES~. 1~0.00
u~z Preparation stip vs. glens to Robert E. ~yers, Esquire 2~.00
1201. Recording fees: Deed S 25,50 : Moflgnge $ 35.50 :Release $
1202. City/coun~ laxhtamps: Deed $ 650.00 : Mortgage $ ~50.00
1203. State taxhtamps Deed $ 650.00 : Mo~gage $ 650.0(
12~.
1205.
~o~. counLy/¢ownship ~999 ~ax ~o KaLhryn FeLro~, Tax Collector 3d.3~
~o~. Express mail Lo Rober~ E. Hyers, Esquire 30.00
t~o~. HJds~a~e Bank release ¢o NJd-S~aLe Bank 2~000.~
~. PHC Brokerage Lo PHC Brokerage
s~o~. CenLral Pennsylvania Conservancy Lo CenLral Pennsylvania Conse 100.0C
~s~. Deed prepare]on and seLLlemenL Lo EckerL Seamans CharJn & Hell 200.00
~o~. House Plan Review ~o CaLhy Cla2pool
t~os. [n~L]a~Jon Dues ¢o K~ngwood Homeowners Assoc, ~00,00
14~. TO~L S~ME~ CHARGES (enter on Iine.~ IOJ. .~ectlo, J n,d 502. Sect/on K) 9. 302.03 .
-' ~ 41,0~4.3~
5E~R ~lmeerm~n BU'I tdl,dg Co~ S~LI.fiR ~ 5ltll.l.:R 3
Robert E. Myers, Esquire
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO., 1NC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO. 01-895 CIVIL
CIVIL ACTION - LAW
PRELIMINARY OBJECTIONS OF DEFENDANT PAMAY DEVELOPMENT CO., INC.
Defendant, Pamay Development Co., Inc. ("Pamay"), by and through its attorneys,
Stevens & Lee, files the following Preliminary Objections, pursuant to Pa. R.C.P. 1017(a) and
1028 and in support thereof, states as follows:
I. Preliminary Obiection - Leeal Insufficiency of the Comolaint (Dermurrer) Pursuant to
Pa. R.C.P. 1028(a)(4)
1. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes a preliminary
objection raising the legal insufficiency of a pleading (demurrer).
2. Plaintiff has filed a four count Complaint against Defendants Pamay, Harry S.
Claypool & Sons, Inc. and Zimmerman Building Corporation. Two counts of the Complaint
(i.e., Counts I and III) name Pamay as a Defendant.
3. Count I of the Complaint, against Pamay, is for breach of contract. Count III of
the Complaint, against Pamay, is for unjust enrichment.
4. Both counts rely on an allegation that a five (5%) percent commission on homes
and lots sold in the Pinehurst Development were due to Plaintiff. (Complaint, ~q[ 6 and 11).
5. Nowhere in the Complaint is it alleged, nor could it be, that Defendant Pamay was
responsible for the five (5%) percent commission to be paid to Plaintiff.
6. In fact, in paragraph 6 of Plaintiff's Complaint, the identity of the Defendant
responsible for the payment of the five (5%) percent commission is noticeably absent. That
paragraph reads, in relevant part, as follows:
Pursuant to the terms of the [Exclusive Right to Sell] Agreement, Plaintiff is
entitled to receive a five (5%) pement commission of the lot and house package
price.
Plaintiff attaches, as Exhibit "A" to the Complaint, the Exclusive Right to Sell Agreement.
7. Exhibit "A", the document on which the breach of contract cause of action is
based, reads as follows: "5% commission to be paid on lot and house package by approved
builder." Defendant Pamay is nowhere identified as the builder, nor could it be. In fact, Pamay
is identified as the "Seller". (See Exhibit "A" to Complaint).
8. Furthermore, Plaintiff's Complaint provides that "Claypool & Sons agreed to pay
broker's commission of five percent (5%) of the total purchase price..." (See Complaint, ~[11).
As evidence of the alleged breach, Plaintiff attaches Exhibit "F" to the Complaint which is the
Statement of Estimated Seller Costs wherein it clearly provides that the broker's (i.e., Plaintiff's)
commission of five (5%) percent is to be paid by Harry S. Claypool & Sons, Inc. (i.e., the
Builder).
9. Likewise, Plaintiff's unjust enrichment claim against Pamay is based upon the
fact that "Defendants" have received all financing from the bank, but have failed to pay the five
(5%) percent commission owed to Plaintiff.
10. This unjust enrichment claim fails to state a cause of action against Defendant
Pamay, because is not Pamay who has been unjustly enriched. The only party who could be
unjustly enriched would be the party responsible for paying the five (5%) percent commission
2
that has not been paid. As can be seen above, Pamay is not, nor has it been alleged that it is, the
party responsible for the payment.
11. Plaintiff's claims as they relate to Defendant Pamay are legally insufficient, fail to
state a cause of action against Pamay on which relief may be granted by the Court, and should be
dismissed with prejudice.
WHEREFORE, Defendant Pamay Development Co., Inc. respectfully requests this Court
to dismiss the Complaint as it relates to Pamay, with prejudice, for failure to state a cause of
action for which relief can be granted.
Respectfully submitted,
STEVENS & LEE
Dated: March 15, 2001
Joseph D. Shelby, Esquire
Supreme Court I.D. #69399
P.O. Box 11670
Harrisburg, PA 17108-1670
(717) 561-5223
Attorneys for Defendant Pamay
Development Co., Inc.
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Preliminary Objections of
Defendant Pamay Development Co., Inc. was served on the following by United States mail, first
class postage prepaid, this 15th day of March, 2001.
Paige MacDonald-Matthes, Esquire
Saul Ewing, LLP
2 North Second Street, 7th Floor
Harrisburg, PA 17101
Harry S. Claypool & Sons, Inc.
1210 King Circle
Mechanicsburg, PA 17055
Zimmerman Building Corporation
2029 Cato Avenue
State College, PA 16801
03/15/01 THU 14:29 FA,~ 717 240 65'73 CU]t~ CO PROT~0NOTARY ~002
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(MuSt be tTT~wri~cen an~ submitted in
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Ple~ce li~t the witl~n mat~er for ~he next Argyle.it Court.
CAPTION OF CASE
(e~tize cal~_'h*~ must be stated in
Jack Gaughen Realtor, ERA
Pamay Development Co., Inc. Harry S. Claypool & Sons, Inc.
and Zimmerman Building Corporation
(Defendant)
No. 01-895 Ci~ri~ ~ 2001
State matter te be az~3ued (i.e.. plaintiff's mti(m for n~ trJ~]~ defendant's
d~er to c~,~l~-t, etc. ):
Preliminary Objections of Defendant Pamay Development Co., Inc.
(a) for 91a{nttff: Paige MacDonald-Matthes, Esq.
A~ess: Saul & Ewing LLP
2 North Second Street, 7th Fl.
Harrisburg PA 17101
(b) for defe~L~nt: Ronald M. Lucas, Esq.
~rt~: Joseph D. Shelby, Esq.
P.O. Box 11670
Harrisburg PA 17108-1670
I~ not/fl~ym~ par~es ~nwritingwith/n t~ocla~s that ttu~ case has
been li~te~ for ar~um~nt.
4. Ar~t C~ Date:
May 23, 2001
~ Co. Irs
At'for P~Y~Diopment/
?17 ~40 65?3 P~GS.02
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
PAMAY DEVELOPMENT CO, INC. :
HARRY S¥ CLAYPOOL & SONS, :
INC., and ZIMMERMAN BUILDING :
CORPORATION, :
Defendants. :
DOCKET NO.:01-895
CIVIL ACTION - LAW
NOTICE OF INTENTION TO TAKE DEFAULT JUDGMENT
TO:
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Mechanicsburg, PA 17055
YOU ARE 1N DEFAULT BECAUSE YOU HAVE FAILED TO FILE IN
WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU IN THE PLAINTIFF'S COMPLAINT.
UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS
NOTICE, A YUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A
HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A
LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT
AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Date: March 20, 2001
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
Paige Macdonald-Matthes
Attorney ID No. 66266
Saul Ewing LLP
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 257-7500
Attorney for Plaintiff Jack Gaughen
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO, INC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendants.
1N THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT
: DOCKET NO.:01-895 c) c~
: CIVIL ACTION - LAW t-~ ~, ;<,
TO THE PROTHONOTARY:
Please enter judgment in the above-captioned case in the form attached hereto,
Harry S. Claypool & Sons, Inc. *
pursuant to Pa. R. Civ. P. 1037 for~defendant's failure to file a pleading to the Complaint,
which contained a notice to defend, in the amount of $59,535.00, together with pre-judgment
interest from 2/18/00, post-judgment interest, filing fees in the sum of $45.50 and Sheriff's
costs in the amount of $200.00.
The undersigned hereby certifies that a written Notice of Intention to Take
Default Judgment was served pursuant to Pa. R. Civ. P. 237.1 more than ten days prior to the
filing of this Praecipe. A true and correct copy of the Notice of Intention to Take Default
Judgment is attached hereto as Exhibit A.
Dated: April 4, 2001
Paige Macdonald-Matthes
Attorney ID No. 66266
Saul Ewing LLP
Penn National Insurance Tower
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Attorney for Plaintiff
* Per t~-I ~%one oo~m~xsation with
arty Pdi~e Mao~x~!d-Mattt~s
4-6-01. ihs
80957 1 4/3/01
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
PAMAY DEVELOPMENT CO, INC. :
HARRY S. CLAYPOOL & SONS, :
INC., and ZIMMERMAN BUILDING :
CORPORATION, :
Defendants. :
DOCKET NO.:01-895
CIVIL ACTION - LAW
JUDGMENT
IT IS HEREBY ORDERED that Judgmem is entered in favor of Jack Gaughen,
Inc. t/d/b/a Jack Gaughen Realtor ERA and against Harry S. Claypool & Sons, Inc., in the
amount of $59,535.00, together with pre-judgment interest from 2/18/00, post-judgment
interest, filing fees in the sum of $45.50 and Sheriff's costs in the amount of $200.00.
80957.1 4/3/01
Exhibit A
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ER~
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMJBERLAND COUNTY,
PENNSYLVANIA
:
PAMAY DEVELOPMENT CO, INC, :
HARRY S. CLAYPOOL & SONS, :
INC., and ZIMMERMAN BUILDING :
CORPORATION, :
Defendants. :
DOCKET NO.:01-895
CML ACTION - LAW
NOTICE OF INTENTION TO TAKE DEFAULT JUDGMENT
TO:
Harry S. Claypool & Sons, Inc.
16 West Mulberry. Hill Road
Carlisle, PA 17013
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE IN
WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU IN THE PLAINTIFF'S CONfPLAINT.
UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS
NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A
HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A
LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT
AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
Date: Marcia 23, 2001
Paige Ma~donald-Matthes
Attorney ID No. 66266
Saul Ewing LLP
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 257-7500
Attorney for PlaintiffJ'ack Gaughen
CERTIFICATE OF SERVICE
I, Paige Macdonald-Matthes, attorney for Plaintiff Jack Gaughen, Inc. t/d/b/a
Jack Gaughen Realtor ERA, do hereby certify that on this 4t~ day of April, 2001, I served a
true and correct copy of the foregoing Praecipe for Entry of Default Judgmem by U,S. First
Class Mail, postage prepaid, addressed as follows:
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
Paige Macdonald-Matthes
809571 4/3/01
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
Vo
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
PAMAY DEVELOPMENT CO, INC. :
HARRY S. CLAYPOOL & SONS, :
INC., and ZIMMERMAN BUILDING :
CORPORATION, :
Defendants. :
DOCKET NO.:01-895
CIVIL ACTION - LAW
NOTICE OF ENTRY OF JUDGMENT
NOTICE IS HEREBY GIVEN in accordance with Pa. R, Civ. P. 236 that a
Judgment in the above-captioned matter has been entered against you in the amount of
$59,535.00, together with pre-judgment interest from 2/18/00, post-judgment interest, filing
fees in the sum of $45.50 and Sheriff's costs in the amount of $200.00.
othon tary
If you have any questions regarding this Notice, please contact:
Paige Macdonald-Matthes, Esquire
Saul Ewing LLP
Penn National Insurance Tower
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Notice Sent To:
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
Paige Macdonald-Matthes
Saul Ewing LLP
Penn National In~surance Tower
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
SHERIFFIS RETURN - REGULAR
CASE NO: 2001-00895 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
GAUGHEN JACK REALTOR ERA
VS
PAM_AY DEVELOPMENT CO INC ET AL
SHAWN HARRISON ,
Cumberland County, Pennsylvania,
says, the within COMPLAINT & NOTICE
P/INLAY DEVELOPMENT CO INC
DEFENDANT at 0017:30 HOURS,
at 1937 MONTGOMERY DR
MECHANICSBURG, PA 17055
HARRY CLAYPOOL, SR. - PART OWNER
a
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
on the 23rd day of February , 2001
by handing to
true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service 7.44
Affidavit .00
Surcharge 10.00
.00
23.44
Sworn and Subscribed to before
me this / / ~ day of
.~.. ~2£,~ / A.D.
~_~O t~o~nno t~ r~
So Answers:
R. Thomas Kline
04/05/2001
SAUL EWING
By:
SHERIFF'S RETURN - REGULAR
CASE NO: 2001-00895 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
GAUGHEN JACK REALTOR EP~A
VS
PAMAY DEVELOPMENT CO INC ET AL
SHAWN HARRISON , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to
says, the within COMPLAINT & NOTICE was served upon
CLAYPOOL HARRY S & SONS INC
DEFENDANT , at 0020:13 HOURS,
at 16 W MULBERRY HILL ROAD
CARLISLE, PA 17013
MARJORIE CLAYPOOL SECRETARY
a true and attested copy of
the
on the 23rd day of February
by handing to
COMPLAINT & NOTICE
together with
law,
, 2001
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service 3.10
Affidavit .00
Surcharge 10.00
.00
19.10
Sworn and Subscribed to before
me this //~ day of
~ ~?~2 / A.D.
/ ~rothonotary ~ '
So Answers:
R. Thomas Kline
04/05/2001
SAUL EWING
SHERIFF'S RETURN -
CASE NO: 2001-00895 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
GAUGHEN JACK REALTOR ERA
VS
PAMAY DEVELOPMENT CO INC ET AL
OUT OF COUNTY
R. Thomas Kline
duly sworn according to law,
and inquiry for the within named DEFENDANT
, Sheriff or Deputy Sheriff who being
says, that he made a diligent search and
to wit:
in his bailiwick.
County,
ZIMMERNLAN BUILDING CORP
but was unable to locate Them
deputized the sheriff of CENTRE
serve the within COMPLAINT & NOTICE
He therefore
Pennsylvania, to
On April 5th 2001
attached return from CENTRE
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
DEF. CENTRE CO 46.00
.00
83.00
04/05/2001
SAUL EWING
Sworn and subscribed to before me
this //~r~ day of ~
A.D.
Prothonotar~
this office was in receipt of the
So answ~': // //
R .-/~ho-m~s- ~<~1 ine ~z/ ' --~- J
Sheriff of Cumberland County
SHERIFF'S OFFICE
CENTRE COUNTY
Rm 101 Court House, Bellefonte, Pennsylvania, 16823 (814) 355-6803
SHERIFF SERVICE INSTRUCTIONS FOR SERVICE OF PROCESS:You must file one
instruction sheet for each defendant, please type or print legibly. Do
PROCESS RECEIPT, AND AFFIDAVIT OF RETURN Not detach any copies.
1. Plaintiff(s) 2. Case Number
3. Defendant(s) ~ 4. Type of Writ or Complaint:
~l~ ~ 5. Name of Individual, Company, Corporation, Etc., to Serve or Description of Property to be Levied, Attached or Sold.
AT ' / 6. Address (Street or RFD, Apa~ment ~., City, Bo~, Twp., State and Zip Code)
7. Indicate unusualservice: [; R~ Mail i Certified Mail LJ De~tize ;; Post U ~her
Now, 20 . I SHERIFF OF CENTRE COUNTY, PA., do hereby deputize the Sheriff of
County to execute this Writ and make return thereof according to law. This deputation
being made at the request and risk of the plaintiff. _ _ Sheriff of Centre County
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE
NOTE ONLY APPMCAB LE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff tevying upon or attaching any property under within writ may leave
same without e watchman, ir~ custody of whomever is found in possession, affer notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to
any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof.
9. Print/Type Name and Address of Attorney/Originator 10. Telephone Number I 11. Date
I
12. Signature
SPACE BELOW FOR USE OF SHERIFF ONLY - DO N~T WRITE BELOW'r.,HIS LINE
13. * acknowledge r~ceipt of the writ ~ SIGNATURE of Authorized CCSD Deputy of Clerk and Title I 14. Date Filed I 15. Expiration/Hearing Date
TO BE COMPLETED BY SHERIFF
16. Served and made known to , on the day of
20 __ , at o'clock, m., at , County of Centre
Commonwealth of Pennsylvania, in the manner described below: Defendant(s) personally served.
Adult family member with whom said Defendant(s) resides(s). Relationship is
Adult in charge of Defendant's residence.
Manager/Clerk of place of lodging in which Defendant(s) resides(s).
Agent or person in charge of Defendant's office or usual place of business.
and officer of said Defendant company.
Other
On the day of ,20 , at o'clock, M.
Defendant not found because:
[ Moved r Unknown I NO Answer I Vacant ~f~- Other O , ~ -~ b ~ ~r~¢5~ ~r ~ '
Advance Costs Docket Service Sur Charge Affidavit Misc. Total Co,ts
17. AFFIRMED and subscrib~ to bebre me this~O _
So
Anewer.
18. Signature of Dep. Sheriff 19. Date
22. Dete
[ ~ ~~ 21. Signature of Sheriff~
C),r ,~ ';~'t ;2~1 ~ SHER FF OF CENTRE COUNTY
[ ~":" ~. ~s Aug 28, ~ Amount Pd. Page
24. I A~L~ OF THE SHEBIFF'S ~ETU~N SI8N~TURE
White- Prothonotary Canary- Attorney
I25. Date Received
SHERIFF'S OFFICE
CENTRE COUNTY
Rm 101 Court House, Bellefonte, Pennsylvania, 16823 (814) 355-6803
SHERIFF SERVICE INSTRU(~TIONS FOR SERVICE OF PROCESS:You must file one
instruction sheet for each defendant, please type or print legibty. Do
PROCESS RECEIPT, AND AFFIDAVIT OF RETURN Net detach any copies.
1. Plaintiff(s) 2. Case Number
3. Defendant(s) rO 4. Type of Writ or Complaint:
7. Indicate unusual service: ~ Rag Ma' d Cert' 'ed M ' E ep ' e 7 Po ~
Now, 20 . I SHERIFF OF CENTRE COUNTY, PA., do hereby deputize the Sheriff of
~ County to execute this Writ and make return thereof according to law. This deputation
being made at the request and risk of the plaintiff· _
Sheriff of Centre County
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE
NOTE ONLY APPUCABLE ON WRIT OF EXECUTION: N.B.WAIVER OF WATCHMAN- Any deputy sheriff levying upon or attaching any property under within writ may leave
same without a watchman, in custody of whomever is found in p~ession, after notifying person of levy or anachment, without liability on the part of such deputy or the sheriff to
any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof.
9. Print/Type Name and Address of Altorney/Originator 10. Telephone Number 11. Date
12. Signature
SPACE BELOW FOR USE OF SHERIFF ONLY - DO I~TWRiTE BELOW'OffS LINE
13. I acknowledge receipt of the wrff ~. SIGNATURE of Authorized CCSD Deputy of Clerk and Title I 14. Date Filed J 15. Expi ~mt~earing Date
TO BE COMPLE I ED ~Y SHI~RIFF
20 __ , at o'clock, __ m., at , County of Centre
[- Defendant(s) personally served.
/ Adult family member with whom said Defendant(s) resides(s). Relationship is
i Manager/Clerk of place of lodging in which Defendant(s) resides(s).
On the day of
Defendant not found because:
~ Moved ~ Unknown
Remarks: F*~,¢~, · r-
17. AFFIP~E~ and s~b~,;ibed to before me this . 90
L Corinne Petel's~ 'Notary Public I Amount Pd.
My ~omrfJ~a~l~l'~, ~entr~ C,o~ mtv J
24. J A~dl~l~'~ffrRL~-~'r~ ~ ~'~SI~IEII=Fb RETURN S~(~NATURE
White - Prothonotary
,20 , at o'clock, M.
Affidavit Mileage I Potage ~ Misc. /TotalCo~ts ;I Cos~Beor~
18. Signature of Dep. 9heriff 19. Date
21. Signature of Sheriff / 22. Date
SHERIFF OF CENTRE COUNTY
Page
Canary-Afforney
25, Date Received
~n The Court of Common Pleas of Cumberland County, Pennsylvania
Jack Gaughen Realtor, ERA
VS.
Pamay Development Co., et. al.
Serve: Zimmerman Building Corp. No. 01-895 Civil
]Wow, 2 / ~ 4 / o 1 ,20 ~ (~., I, SHERIFF OF CUM]BERLAND COUi'4TY, PA, do
hereby deputize the Sheriff of Centre County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Sem4ce
,20 , at o'clock__
served the
upon
by handing to
a
and made known to
copy of the orig/nal
the contents thereof.
So answers,
Sworn amd subscribed before
me ttis __ day of
; 20
Sheriffof
COSTS
SERVICE
MILEAGE
.A3'FIDAVIT
Conn/y, PA
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO, INC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NOTICE TO DEFEND
You have been sued in Court. lfyou wish to defend against the claims set forth in
the following pages, you must take action within twenty (20) days after this complaint and notice
are served, by entering a written appearance personally or by an attorney and filing in writing
with the Court your defenses or objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a judgment may be entered against
you by the Court without further notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER 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
78751.1 2/12/01
IRUE COPY FROM RECORD
m Testimony whereof, I here unto set my hano
an.d these, al of said Color at Carlisle. ~.
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA, :
Plaintiff, :
PAMAY DEVELOPMENT CO, INC. :
HARRY S. CLAYPOOL & SONS, :
INC., and ZIMMERMAN BUILDING :
CORPORATION, :
Defendants. :
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PE~N~,'SYLVANIA
DOCKET NO.:
CIVIL ACTION - LAW
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan en las paginas siguientes, usted debe tomar acci6n dentro los pr6ximo viente
(20) dias al partir de la fecha de la demanda y la notificaci6n, Usted debe presentar una apariencia escrita
o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las
demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomar~ medidas y
puede entrar una orden contra usted sin aviso adicional o notificaci6n y por cualquier queja o alivio que es
pedido en la petici6n de demanda. Usted puede perder dinero o sus propiedades o otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A UN ABOGADO
1NMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE
PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCR/TA ABA JO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
78751.1 2,'12/01
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Perm National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717)257-7500
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO, INC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO.:
CIVIL ACTION - LAW
COMPLAINT
AND NOW, COMES, Jack Gaughen Realtor, ERA, by and through its counsel Saul
Ewing LLP, and files its Complaint against the named Defendants, Pamay Development Co.,
Inc., Harry S. Claypool & Sons, Inc., and Zimmerman Building Corporation, and in support
thereof avers as follows:
1. Plaintiff, Jack Gaughen Realtor, ERA, (hereinafter "PLAINTIFF'*) is a
Pennsylvania business corporation with an address located at 3915 Market Street, Camp Hill,
Cumberland County, Pennsylvania, 17011-4038.
2. Defendant Pamay Development Co., Inc.(hereinafter "PAMAY") is a
Pennsylvania real estate development corporation having its principal place of business located
at 5140 East Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania 17055
3. Defendant Harry S. Claypool & Sons, Inc. (hereinafter "CLAYPOOL & SONS")
is a Pennsylvania business corporation engaged in the construction &new homes and having its
78751.1 2/12/{)1
JACK GAUGHEN REALTOR, ERA
Plaintiff
PAMAY DEVELOPMENT CO.,
INC., HARRY S. CLAYPOOL &
SONS, INC., AND ZIMMERMAN
BUILDING CORPORATION
Defendants
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
No. 895 Civil 2001
PRAECIPE TO WITHDRAW
TO THE PROTHONOTARY:
Please withdraw the above captioned case from the May 23, 2001, Argument List.
Dated: ,2001
Attorney ID #18343
P.O. Box 11670
Harrisburg PA 17108-1670
(717) 561-5204
Attorney for the Defendants
04/23/01/SL1 159957vl/67050.001
CERTIFICATE OF SERVICE
I, Ronald M. Lucas, Esquire, hereby certify that I am this day serving the
foregoing document upon the persons and in the manner indicated below which service satisfies
the requirements of Pa. R.A.P. 121:
Service by first class mail, and facsimile as follows:
Paige Macdonald-Matthes, Esq.
Saul Ewin~
2 North 2n~ St, 7th Floor
Harrisburg PA 17101
Ro/n aid MT. L, ticas
Attorney I.D. No. 18343
Stevens & Lee
P.O. Box 11670
Harrisburg, Pennsylvania 17108-1670
Telephone: (717) 561-5204
Attorneys for Defendants
03122101/$L1 149727vl/00000,000
SAUL EWING, LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 257-7500
Attorneys for Jack Gaughen Realtor ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Vo
PAMAY DEVELOPMENT CO., INC,
HARRY S. CLAYPOOL & SONS, INC
and ZIMMERMAN BUILDING
CORPORATION,
Defendants
RULE
DOCKET NO.: 01-895 CIVIL
CIVIL ACTION - LAW
AND NOW, this rT0' day of ~-~,-q.D c_
consideration of the Plaintiffs Motion for Sanctions a copy of which is attached hereto, a Rule is
issued upon Defendant Harry S. Claypool & Sons, Inc., to show cause, if any it has, why
Plaintiffs Motion should not be granted
Rule returnable
days from the date of service.
BY THE COURT:
824192 6/1/01
SAUL, EWING, REMICK & SAUL, LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO., INC,
HARRY S. CLAYPOOL & SONS, INC.,
and ZIMMERMAN BUILDING
CORPORATION
Defendants.
dUN 0
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO.: 01-895 CIVIL
CIVIL ACTION - LAW
MOTION FOR SANCTIONS
AND NOW, COMES the Plaintiff, Jack Gaughen Realtor, ERA by and through
its counsel, Saul, Ewing, LLP, and files its Motion for Sanctions, and in support thereof avers as
follows:
1. On February 14, 2001, the Plaintiff filed its Complaint against the
Defendants at the above-referenced docket number.
2. On April 4, 2001, a Praecipe for Entry of Default Judgment was filed
against Co-Defendant Harry S. Claypool & Sons, Inc. at the above-referenced docket number.
3. On April 4, 2001, upon the Court's review of the docket, a judgment by
default was entered against t Co- Defendant Harry S. Claypool & Sons, Inc. in the amount of
$59,535.00 together with pre-judgment interest from February 18, 2000, post-judgment
interest, plus costs in the amount of $245.50. A true and correct copy of the Order of
Judgment is attached hereto and marked as Exhibit "A".
82419.2 6/1/01
4. In an attempt to enforce its judgment against the Defendant, prepared
Interrogatories in Aid of Execution ("Interrogatories") directed to Co-Defendant, Harry S.
Claypool & Sons, Inc. on or about April 9, 2001.
5. Harry S. Claypool, Jr. and Marjorie Claypool prepared and submitted
answers to the Interrogatories on behalf of Defendants without the assistance of legal counsel
on or about May 4, 2001.
6. In the answers to the Interrogatories, Co-Defendant Harry S. Claypool &
Sons, Inc. indicated that the corporation would soon be filing for relief in bankruptcy and that
the corporation was represented by Keith DeArmond, Esquire.
7. Plaintiff's counsel attempted to contact Keith DeArmond, Esquire no less
than four (4) times by telephone to confirm his representation of Defendant. None of the
telephone calls were returned.
8. As of the date of the filing of this Motion, no counsel has entered their
appearance on behalf of the Defendant either in this Court, or in the United States Bankruptcy
Court for the Middle District of Pennsylvania.
9. On May 21, 2001, Plaintiff noticed Defendant Harry S. Claypool &
Sons, Inc. for deposition in aid of execution to be held on June 1, 2001 at 9:30 a.m. A true
and correct copy of the Notice of Deposition is attached hereto and is marked as Exhibit "B".
10. Plaintiff's Notice of Deposition was accompanied by a letter which
requested that Defendant forward the Notice to counsel if counsel was retained.
11. On May 31, 2001, Plaintiff's counsel's office contacted Defendant to
confirm the time for the deposition. Plaintiff's counsel received a return telephone call from
Marjorie Claypool who advised that she was calling on behalf of the corporation and that
82419.2 6/1/01 -2-
Harry S. Claypool, Jr. would not be attending the deposition. Marjorie Claypool further
advised that the Defendant was represented by Michael D. Hess, Esquire and that he would be
in contact with Plaintiff's counsel, if he had not done so already.
12. On Thursday, May 31, 2001 at approximately 4:35 p.m., Plaintiff's
counsel contacted Michael D. Hess, Esquire to inquire whether he was, in fact, representing
the Defendant and to confirm the Defendant's intentions vis-a-vis the deposition. Plaintiff's
counsel was advised by Mr. Hess' secretary that he was not in the office, but that she would
leave him a message. Plaintiff's counsel advised that the deposition would not be rescheduled.
13. At approximately 4:40 p.m. Plaintiff's counsel received a telephone call
from Michael D. Hess, Esquire confirming his representation of the Defendant. Mr. Hess
advised that he would be filing the Defendant in bankruptcy but did not offer a specific date.
When asked when he was provided with a copy of the Notice of Deposition, Mr. Hess further
advised that he was aware of the deposition as early as Tuesday, May 29, 2001. Mr. Hess
advised that neither he nor his client would attend the deposition notwithstanding the fact that a
petition in bankruptcy has not been filed on behalf of Defendant and notwithstanding the fact
that the deposition was properly noticed.
14. Defendant and defense counsel willfully and purposely failed to notify
Plaintiff's counsel that they did not intend to appear for deposition.
15. In anticipation of the deposition, Plaintiff's counsel spent several hours
preparing for the deposition.
16. On Thursday, May 31, 2001 at approximately 6:22 p.m., Marjorie
Claypool left a message on Plaintiff's counsel's voice mail indicated that she wanted to
82419.2 6/1/01 -3-
reschedule the deposition of Harry S. Claypool and that Mike Hess, Esquire would be in
contact.
17.
the answers that were provided to the Interrogatories and to ask additional questions of the
Defendant that have been raised by virtue of the answers provided to the Interrogatories.
18. Plaintiff will be prejudiced if this Honorable Court does not enter an
Order imposing sanctions against Defendant for Defendant's failure to comply with the Notice
of Deposition.
19. As a direct and proximate result of Defendant's conduct, Plaintiff has
had to incur the additional cost of preparing and filing this Motion for which Plaintiff should
be reimbursed.
20. As of the date of the Motion, Plaintiff's counsel has not received any
written confirmation from Attorney Michael Hess that he is representing Defendant.
Plaimiff is emitled under the Rules of Civil Procedure to further develop
WHEREFORE, Plaimiff, Jack Gaughen Realtor ERA, respectfully requests that
this Honorable Court grant its Motion for Sanctions, award Plaintiff counsel fees and costs
incurred in the preparation for the deposition, as well as the filing of this Motion in the sum of
$850.00, direct Defendant to appear at the office of Sanl Ewing LLP for deposition, and further
award Plaintiff all such other relief as is proper and just.
82419.2 6/1/01 -4-
Date: June 1, 2001
Respectfully submitted,
SAUL EWING, LLP
Paige Macdonald-Matthes
Attorney ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Attorneys for Jack Gaughen Realtor ERA
82419.2 6/1/01
-5-
Exhibit A
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO, INC.
HARRY S. CLAYPOOL & SONS,
INC., and ZIMMERMAN BUILDING
CORPORATION,
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO.:01-895
CIVIL ACTION - LAW
NOTICE OF ENTRY OF JUDGMENT
NOTICE IS HEREBY GIVEN in accordance with Pa. R. Civ. P. 236 that a
Judgment in the above-captioned matter has been entered against you in the amount of
$59,535.00, together with pre-judgment interest from 2/18/00, post-judgment interest, filing
fees in the sum of $45.50 and Sheriff's costs in the amount of $200.00.
If you have any questions regarding this Notice, please contact:
Paige Macdonald-Matthes, Esquire
Saul Ewing LLP
Penn National Insurance Tower
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Notice Sent To:
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
Paige Macdonald-Matthes
Saul Ewing LLP
Penn National Insurance Tower
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
Exhibit B
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
JACK GAUGHEN REALTOR, ERA
Plaintiff,
PAMAY DEVELOPMENT CO., INC.,
HARRY S. CLAYPOOL & SONS, INC.,
AND Z1MMERMAN BUILDING
CORPORATION
Defendants.
Docket No.:01-895
CML ACTION- LAW
NOTICE OF DEPOSITION
TO:
HARRY S. CLAYPOOL
President, Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
PLEASE TAKE NOTICE that the deposition of HARRY L. GROSSMAN,
President Atlantic Freight Systems, Inc, will be taken at the Law Offices of Saul Ewing LLP, 2
North Second Street, 7th Floor, Penn National Insurance Tower, Harrisburg, Pennsylvania on
Friday, June 1, 2001 commencing at 9:30 a.m. until excused before a Court Reporter duly
authorized to administer the oath, pursuant to Rule 4007.1 of the Pennsylvania Rules of Civil
Procedure.
In accordance with Rule 4009.1 of the Pennsylvania Rules of Civil Procedure, the
Deponent is requested to bring with him to the deposition the items and/or documents listed in
Exhibit "A," which is attached hereto and incorporated herein by reference.
Dated: May 21, 2001
Respectfully submitted,
Paige Macdonald-Matthes, Esquire
Saul, Ewing LLP
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17108-1291
(717) 238-7675
Attorney for Plaintiff
EXHIBIT "A"
five (5) years.
4.
1. Copies of the Articles of Incorporation and the Corporate Minute Book for Harry
S. Claypool & Sons, Inc.
Copies of any Articles of Dissolution for Harry S. Claypool & Sons, Inc.
Copies of Corporate tax returns for Harry S. Claypool & Sons, Inc. for the past
Copies of all financial statement prepared on behalf of Harry S. Claypool & Sons,
Inc. or submitted by Harry S. Claypool & Sons, Inc. to any lender or lending institution during
the past five (5) years.
5. Copies of all certificates of title to any property owned by Harry S. Claypool &
Sons, Inc., including any copies of any UCC filings.
6. Copies of all loan documents prepared at the request of or on behalf ofI-Iarry S.
Claypool & Sons, Inc. during the past five (5) years.
7. Copies of all bank statements for Harry S. Claypool & Sons, Inc generated during
the past five (5) years.
CERTIFICATE OF SERVICE
I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 21st day of May
2001, I served a true and correct copy of the foregoing Notice of Deposition of Harry S.
Claypool, via First Class Mail, postage prepaid, and certified mail upon the following:
Harry S. Claypool, Jr.
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
Paige Macdonald-Matthes
A~TORNEYS AT LAW
pAIGB MACDONALD-MATTHES
Phone: (717) 238-7675
Fax: (717) 257-7583
pmac. donald- matthes~ saul .corn
www.saul.com
Harry S. Claypool, Jr.
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
May 21, 2001
Re:
Jack Gaughen Realtor, ERA v. Pamay Development Co., Inc., Harry S.
Claypool & Sons, Inc. and Zimmerman Building Corporation
Dear Mr. Claypool:
As you are aware, this firm represents the interests of Jack Gaughen Realtor, ERA in
regard to the above referenced matter. At this time we are unaware of whether Harry S.
Claypool & Sons, Inc.("Claypool") is represented by legal counsel in light of the fact that no
Notice of Appearance has been filed on your behalf in regard to the above referenced matter.
Enclosed is Notice of Deposition in Aid of Execution directing your appearance at my
office on Friday, June 1, 2001 at 9:30 a.m. I would ask that you please make sure that you
bring the documents identified in Exhibit "A" to the Notice to the deposition.
I note in the answers to the imerrogatories in aid of execution which you prepared on
behalf of Claypool, you made reference to the fact that Keith DeArmond, Esquire would be
representing Claypool in a possible bankruptcy filing. Please be advised that I have not
received any notice ~om Mr. DeArmond concerning a bankruptcy filing nor have I received
confh'mation of his representation of Claypool in this matter. Moreover, Mr. DeArmond has
failed to respond to any of the several telephone messages I have left for him. Thus, I can only
presume that he is not representing Claypool in this matter.
In the event that Claypool is represented by legal counsel, I would ask that you please
forward this notice to your counsel's attention and request that they contact me directly.
2 North Second Street, 7'~ Floor * Harrisburg, PA 17101-1604 , Phone: (717) 257-7500 · Fax: (717) 238-4622
s~140.25at~01 BALTIMORE CHES'TERBROOK HARRISBURG NEW YORK PHILADELPHIA PRINCETON WILM'I~GTON
May 21, 2001
Page 2
Thank you for your prompt attention to this matter.
Very truly yours,
Paige Macdonald-Matthes
PMM/aja
Enclosure
cc: Karen Stone (w/encl.
CERTIFICATE OF SERVICE
I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 1st day of June
2001, I served a true and correct copy of the foregoing Motion for Sanctions, via First Class
Mail, postage prepaid, and certified mail upon the following:
Harry S. Claypool, Jr.
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
(with courtesy copy to)
Michael D. Hess, Esquire
Burke & Hess
11 East High Street
Carlisle, PA 17013
Paige Macdonald-Matthes
82419.2 6/1/01
SAUL, EWING, REMICK & SAUL, LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Perm National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO., INC,
HARRY S. CLAYPOOL & SONS, INC.,
and ZIMNIERMAN BUILDING
CORPORATION
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO.: 01-895 CIVIL
CIVIL ACTION - LAW
MOTION FOR RULE ABSOLUTE
AND NOW, COMES the Plaintiff, Jack Gaughen Realtor, ERA by and through
its counsel, Saul, Ewing, LLP, and files its Motion for Sanctions, and in support thereof avers as
follows:
1. On February 14, 2001, the Plaintiff filed its Complaint against the
Defendants at the above-referenced docket number.
2. On April 4, 2001, a Praecipe for Entry of Default Judgment was filed
against Co-Defendant Harry S. Claypool & Sons, Inc. at the above-referenced docket number.
3. On April 4, 2001, a judgment by default was entered against Co-
Defendant Harry S. Claypool & Sons, Inc. in the amount of $59,535.00 together with pre-
judgment interest from February 18, 2000, post-judgment interest, plus costs in the amount of
$245.50. A true and correct copy of the Order of Judgment is attached hereto and marked as
Exhibit "A".
82419 2 7/3/01
4. In an attempt to enforce its judgment against the Defendant, prepared
Interrogatories in Aid of Execution ("Interrogatories") directed to Co-Defendant, Harry S.
Claypool & Sons, Inc. on or about April 9, 2001.
5. Harry S. Claypool, Jr. and Marjorie Claypool prepared and submitted
answers to the Interrogatories on behalf of Defendants without the assistance of legal counsel
on or about May 4, 2001.
6. In the answers to the Interrogatories, Co-Defendant Harry S. Claypool &
Sons, Inc. indicated that the corporation would soon be filing for relief in bankruptcy and that
the corporation was represented by Keith DeArmond, Esquire.
7. On May 21, 2001, Plaintiff noticed Defendant Harry $. Claypool &
Sons, Inc. for deposition in aid of execution to be held on June 1, 2001 at 9:30 a.m. A true
and correct copy of the Notice of Deposition is attached hereto and is marked as Exhibit "B".
8. Plaintiff's Notice of Deposition was accompanied by a letter which
requested that Defendant forward the Notice to counsel if counsel was retained.
9. On May 31, 2001, Plaintiff's counsel's office contacted Defendant to
confirm the time for the deposition. Plaintiff's counsel received a return telephone call from
Marjorie Claypool who advised that she was calling on behalf of the corporation and that
Harry S. Claypool, Jr. would not be attending the deposition. Marjorie Claypool further
advised that the Defendant was represented by Michael D. Hess, Esquire and that he would be
in contact with Plaintiff's counsel, if he had not done so already.
10. On Thursday, May 31, 2001 at approximately 4:35 p.m., Plaintiff's
counsel contacted Michael D. Hess, Esquire to inquire whether he was, in fact, representing
the Defendant and to confirm the Defendant's intentions vis-a-vis the deposition. Plaintiff's
824192 7/3/01 -2-
counsel was advised by Mr. Hess' secretary that he was not in the office, but that she would
leave him a message. Plaintiff's counsel advised that the deposition would not be rescheduled.
11. At approximately 4:40 p.m. Plaintiff's counsel received a telephone call
from Michael D. Hess, Esquire confirming his representation of the Defendant. Mr. Hess
advised that he would be filing the Defendant in bankruptcy but did not offer a specific date.
When asked when he was provided with a copy of the Notice of Deposition, Mr. Hess further
advised that he was aware of the deposition as early as Tuesday, May 29, 2001. Mr. Hess
advised that neither he nor his client would attend the deposition notwithstanding the fact that a
petition in bankruptcy has no__[ been filed on behalf of Defendant and notwithstanding the fact
that the deposition was properly noticed.
12. As a direct and proximate result of Defendant's failure to appear for
deposition, Plaintiff's counsel prepared and filed a Motion to Compel and for Sanctions.
13. On June 7, 2001, this Honorable Court issued a Rule to Show Cause
upon Defendant to Show Cause, if any it had, why Plaintiff's Motion should not be granted. A
true and correct copy of the Rule is attached hereto and is marked as Exhibit "C".
14. A copy of the Rule was served upon Defendant by the Court on June 8,
2001. A courtesy copy was also served on Attorney Hess on or about June I 1, 2001.
15. As of the date of the filing of this Motion, no attorney has entered their
appearance on behalf of the Defendant either in this Court, or in the United States Bankruptcy
Court for the Middle District of Pennsylvania.
16. As of the date of the filing of this Motion, the Defendant has not filed
for relief in Bankruptcy in the United States Bankruptcy Court for the Middle District of
Pennsylvania.
82419 2 7/3/01 -3-
17. As of the date of the Motion, no response has been filed to the Rule
issued by the Court and no contact has been made to Plaintiff's counsel to reschedule the
deposition,
18. Plaintiff has had to incur additional counsel fees in the preparation and
filing of the two (2) motions, in addition to the costs incurred in preparation for the 6/1/01
deposition. Specifically, Plaintiff has incurred counsel fees and costs in the collective sum of
$820.
WHEREFORE, Plaintiff, Jack Gaughen Realtor ERA, respectfully requests that
this Honorable Court grant its Motion for Sanctions, award Plaintiff counsel fees and costs
incurred in the preparation for the deposition, as well as the filing of this Motion in the sum of
$820, direct Defendant to appear at the office of Saul Ewing LLP for deposition on 7/12/01, and
further award Plaintiff all such other relief as is proper and just.
82419 2 7i3/01 -4-
Date: July 3, 2001
Respectfully submitted,
SAUL EWING, LLP
Paige Macdonald-Matthes
Attorney ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Attorneys for Jack Gaughen Realtor ERA
82419 2 7/3/0I
-5-
Exhibit A
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
PAMAY DEVELOPMENT CO, INC. :
HARRY S. CLAYPOOL & SONS, :
INC., and ZIMMERMAN BUILDING :
CORPORATION, :
Defendants. :
DOCKET NO.:01-895
CIVIL ACTION - LAW
NOTICE OF ENTRY OF JUDGMENT
NOTICE IS HEREBY GIVEN in accordance with Pa. R. Civ. P. 236 that a ·
Judgment in the above-captioned matter has been entered against you in the amount of
$59,535.00, together with pre-judgment interest from 2/18/00, post-judgment interest, filing
fees in the sum of $45.50 and Sheriff's costs in the amount of $200.00.
~.~ ~- O/ eroth n~o~rYL~(~~f
If you have any questions regarding this Notice, please contact:
Paige Macdonald-Matthes, Esquire
Saul Ewing LLP
Penn National Insurance Tower
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Notice Sent To:
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
Paige Macdonald-Matthes
Saul Ewing LLP
Penn National Insurance Tower
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
Exhibit B
PAIGE MACDONALD-MATTHES
Phone: (717) 238-7675
Fax: (717)257-7583
prnacdonald-matthes@ saul .corn
www.saul.com
Harry S. Claypool, Jr.
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
May 21, 2001
Re:
Jack Gaughen Realtor, ERA v. Pamay Development Co., Inc., Harry S.
Claypool & Sons, Inc. and Zimmerman Building Corporation
Dear Mr. Claypool:
As you are aware, this firm represents the interests of Jack Gaughen Realtor, ERA in
regard to the above referenced matter. At this tkne we are unaware of whether Harry S.
Claypool & Sons, Inc. CClaypool") is represented by legal counsel in light of the fact that no
Notice of Appearance has been filed on your behalf in regard to the above referenced matter.
Enclosed is Notice of Deposition in Aid of Execution directing your appearance at my
office on Friday, June 1, 2001 at 9:30 a.m. I would ask that you please make sure that you
bring the documents identified in Exhibit "A" to the Notice to the deposition.
I note in the answers to the interrogatories in aid of execution which you prepared on
behalf of Claypool, you made reference to the fact that Keith DeArmond, Esquire would be
representing Claypool in a possible bankruptcy filing. Please be advised that I have not
re6eived any notice from Mr. DeArmond concerning a bankruptcy filing nor have I received
confn'mation of his representation of Claypool in this matter. Moreover, Mr. DeArmond has
failed to respond to any of the several telephone messages I have left for him. Thus, I can only
presume that he is not representing Claypool in this matter.
In the event that Claypool is represented by legal counsel, I would ask that you please
forward this notice to your counsel's attention and request that they contact me directly.
2 North Second Street, 7'b Floor . Harrisburg. PA 17101-1604 . Phone: (717) 257-7500 , Fax: (717) 238-4622
811402~t21,01 BALTIMORE CHESTERBROOK HARRISBURG NEW YORK PHILADELPHIA PRINCETON WILMINGTON
· May 21, 2001
Page 2
Thank you for your prompt attention to this matter.
Very truly yours,
Paige Macdonald-Matt
PMM/aja
Enclosure
cc: Karen Stone (w/encl.)
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
JACK GAUGHEN REALTOR, ERA
Plaintiff,
PAMAY DEVELOPMENT CO., INC.,
HARRY S. CLAYPOOL & SONS, INC.,
AND ZIMMERMAN BUILDING
CORPORATION
Defendants.
Docket No. :01-895
CML ACTION- LAW
NOTICE OF DEPOSITION
TO:
HARRY S. CLAYPOOL
President, Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
PLEASE TAKE NOTICE that the deposition of HARRY L. GROSSMAN,
President Atlantic Freight Systems, Inc, will be taken at the Law Offices of Saul Ewing LLP, 2
North Second Street, 7th Floor, Penn National Insurance Tower, Harrisburg, Pennsylvania on
Friday, June 1, 2001 commencing at 9:30 a.m. until excused before a Court Reporter duly
authorized to administer the oath, pursuant to Rule 4007.1 of the Pennsylvania Rules of Civil
Procedure.
In accordance with Rule 4009.1 of the Pennsylvania Rules of Civil Procedure, the
Deponent is requested to bring with him to the deposition the items and/or documents listed in
Exhibit "A," which is attached hereto and incorporated herein by reference.
Dated: May 21, 2001
Respectfully submitted,
Paige Macdonald-Matthes, Esquire
Saul, Ewing LLe
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17108-1291
(717) 238-7675
Attorney for Plaintiff
EXHIBIT "A"
five (5) years.
4.
1. Copies of the Articles of Incorporation and the Corporate Minute Book for Harry
S. Claypool & Sons, Inc.
Copies of any Articles of Dissolution for Harry S. Claypool & Sons, Inc.
Copies of Corporate tax returns for Harry S. Claypool & Sons, Inc. for the past
Copies of all financial statement prepared on behalf of Harry S. Claypool & Sons,
Inc. or submitted by Harry S. Claypool & Sons, Inc. to any lender or lending institution during
the past five (5) years.
Copies of all certificates of title to any property owned by Harry S. Claypool &
Sons, Inc., including any copies of any UCC filings.
6. Copies of all loan documents prepared at the request of or on behalf of Harry S.
Claypool & Sons, Inc. during the past five (5) years.
7. Copies of all bank statements for Harry S. Claypool & Sons, Inc generated during
the past five (5) years.
CERTIFICATE OF SERVICE
I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 21st day of May
2001, I served a tree and correct copy of the foregoing Notice of Deposition of Harry S.
Claypool, via First Class Mail, postage prepaid, and certified mail upon the following:
Harry S. Claypool, Jr.
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
Paige Macdonald-Matthes
Exhibit C
SAUL EWING, LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 257-7500
Attorneys for Jack Gaughen Realtor ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO., INC,
HARRY S. CLAYPOOL & SONS, ][NC
and ZI~INIER~MAN BUILDING
CORPORATION,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO.: 01-895 CIVIL
CIVIL ACTION - LAW
RULE
ANDNOW, this 7'~ .dayof ~"LL~'~ ,2001, upon
consideration &the Plaintiffs Motion for Sanctions a copy &which is attached hereto, a Rule is
issued upon Defendant Harry S. Claypool & Sons, Inc., to show cause, if any it has, why
Plaintiffs Motion should not be granted
Rule returnable ~-0 days from the date of service.
~ BY THE COURT: /
In T~iim~ny wh,~r~f, I het~ Un?,o set my ~
CERTIFICATE OF SERVICE
I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 3~d day of July
2001, I served a true and correct copy of the foregoing Motion for Rule Absolute, via First
Class Mail, postage prepaid, and certified mail upon the following:
Harry S. Claypool, Jr.
Harry S. Claypool & Sons, Inc.
16 West Mulberry Hill Road
Carlisle, PA 17013
(with courtesy copy to)
Michael D, Hess, Esquire
Burke & Hess
951 Rohrestown Road
Lancaster, PA 17601
Paige Macdonald-Matthes
82419 2 7/3/01
SAUL EWING LLP
Paige Macdonald-Matthes, Esquire
Supreme Court ID No. 66266
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(717) 238-7675
Attorneys for Jack Gaughen Realtor, ERA
JACK GAUGHEN REALTOR, ERA,
Plaintiff,
PAMAY DEVELOPMENT CO., INC,
HARRY S. CLAYPOOL & SONS, INC.,
and ZIMMERMAN BUILDING
CORPORATION
Defendants.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO.: 01-895 CIVIL
CIVIL ACTION - LAW
PRAECIPE TO WITHDRAW, SETTLE AND DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the above referenced matter withdrawn, settled and discontinued
with prejudice as to Defendants Pamay Development Co., Inc. and Zimmerman Building
Corporation.
Attorney ID No. 18343
Stevens & Lee
P.O. Box 11670
Harrisburg, PA 17108-1670
(717) 561-5204
Paige Ma~donald-Matthes, Esquire
Attorney ID No. 66266
Saul Ewing LLP
Penn National Insurance Tower
2 North Second Street, 7t~ Floor
Harrisburg, PA 17101
(717) 238-7675
Attorneys for Defendants Attorneys for Plaintiff
Pamay Development Co., In~. ~nd
Dated: 3une 7, ~ma Building CorporatiO~ated: 3une ~., 200l
82496 1 6/5/01
JACK GAUGHEN
REALTOR, ERA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Paige Macdonald-Matthes, Esq.
Penn National Insurance Tower
2 North Second Street, 7th Floor
Harrisburg, PA 17101
Attorney for Plaintiff
BY THE COURT,
esley Ole~,~,
days prior to the deposition.
V. :
PAMAY :
DEVELOPMENT CO., :
INC., HARRY S. :
CLAYPOOL & SONS, :
1NC., and ZIMMERMAN :
BUILDING :
CORPORATION, :
Defendants : NO. 01-0895 CIVIL TERM
ORDER OF COURT
AND NOW, this 16t~ day of July, 2001, upon consideration of Plaintiff's Motion
for Rule Absolute, flied July 6, 2001, the motion is granted to the extent that the Rule
issued on June 7, 2001, is made absolute and Defendant Harry S. Claypool & Sons, Inc.,
is directed to appear through a proper corporate designeee for a deposition, with the
materials requested, at the office of Plaintiff's counsel in Harrisburg, Pennsylvania, at the
time indicated in a proper notice of deposition served by Plaintiff's counsel at least 10
Harry S. Claypool & Sons, Inc.
Attn: Harry S. Claypool, Jr.
16 West Mulberry Hill Road
Carlisle, PA 17013
Defendant, Pro Se
Michael D. Hess, Esq.
BURKE & HESS
951 Rohrestown Road
Lancaster, PA 17601
(Courtesy Copy)
irc