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Home My WebLink About04-3077ALFONSO V. CIERVO, : IN THE COURT OF COMMONS PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 011 .3677 WILLIAM D. BUTTORFF AND RUTH C. CIVIL ACTION - LAW BUTTORFF, husband and wife, Defendant. JURY TRIAL DEMANDED N O T I C E YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADOlA EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en ]as siguientes paginas, debe tomar acci6n dentro de los proximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes pars usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POS113LE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 ALFONSO V. CIERVO, Plaintiff, v. WILLIAM D. BUTTORFF AND RUTH C. BUTTORFF, husband and wife, Defendant. IN THE COURT OF COMMONS PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07- 3071 0,v °1',.... CIVIL ACTION - LAW JURY TRIAL DEMANDED Complaint AND NOW COMES, Plaintiff Alfonso V. Ciervo, by and through his counsel Smigel, Anderson & Sacks, L.L.P., who files the within Complaint by averring as follows: Parties: Plaintiff Alfonso V. Ciervo ("Ciervo") is a resident of the Commonwealth of Pennsylvania with a principle address of 1435 North Second Street, Harrisburg, Dauphin County, Pennsylvania. 2. Defendants William D. and Ruth C. Buttorff (collectively "the Buttorffs") are residents of the Commonwealth of Pennsylvania with a principle address of 306 Glover Street, Jersey Shore, Lycoming County, Pennsylvania. Jurisdiction and Venue: 3. This Court has jurisdiction over the parties and the subject matter of this case. 4. Venue is appropriate in Cumberland County, Pennsylvania pursuant to Pa.R.Civ.P. 1006, as it is where the cause of action arose and/or where transactions and occurrences took place out of which the cause of action arose. Background: On September 28, 1994, Ciervo entered into a Sales Agreement ("Agreement") with the Buttorffs for the purchase of the "lot and ground and improvements thereon" located at 4626 Clearview Drive, Camp Hill, Hampden Township, Cumberland County, Pennsylvania ("Subject Premises") for the purchase price of $119,900. A true and correct copy of the Agreement is attached hereto and made part of this document as Exhibit "A". 6. Under the terms of the Agreement, Ciervo was required to, pay the purchase price under the following structure: a. a down payment of $29,975.00 on September 28, 1994 (Exhibit A, ¶ 2A); and b. the balance of $89,925.00 at 8.5% interest in monthly installments of $885.53 for a defined period of 180 months, or 15 years which was to be applied to the principal and interest on the mortgage. (Exhibit A, ¶ 213) 7. Under the terms of the Agreement, Ciervo was also responsible for, inter alia, the following: a. payment of all real estate taxes to the Buttorffs on a monthly basis (Exhibit A, ¶¶ 2C, 5); b. payment of all utilities (Exhibit A, ¶ 5); and c. payment of all homeowners dues (Exhibit A, 15). 8. Ciervo was to pay all such costs and expenses to the Buttorffs who were then required, under the terms of the Agreement, to submit such payments directly to the lenders/creditors in the following priority: 2 a. late charges; b. lienable utilities; C. taxes and insurance; and d. mortgage (interest and principal) (Exhibit A, 16). 9. Under the terms of the Agreement, the Buttorffs were prohibited from either increasing the current encumbrance or lien on the Subject Premises or obtaining any additional encumbrance or financing that would create a new encumbrance or lien lien against the Subject Premises. Exhibit A, ¶ 17. 10. Ciervo and the Buttorffs entered into an agreement to sell the Subject Premises to Bin Ning Wu, with settlement for said sale occurring on May 16, 2003. 11. The Subject Premises was sold for $123,000.00, with $76,656.82 of the purchase price paid directly to Midland Mortgage Company as a payoff of the existing mortgage held by the Buttorffs on the Subject Premises. 12. The remaining equity in the Subject Premises, which was paid to Ciervo from the remaining settlement proceeds equaled $37,924.42. 13. According to the Amortization Schedule attached to and made part of the Agreement as Exhibit B, the balance on the existing mortgage at the time of the last payment prior to settlement in April of 2003 should have been $52,927.70, $23,729.12 less than the amount actually owed to the mortgage holder at the time of settlement. See Agreement at Exhibit B. 14. Contrary to the terms of the Agreement, and despite Ciervo's continued payments in accordance with the terms of the Agreement, the Buttorffs failed to apply such payments to the mortgage, principal and interest. COUNTI BREACH OF CONTRACT 15. Plaintiff hereby incorporates by reference paragraphs 1 through 14 of this Complaint as if fully stated herein. 16. The Buttorffs agreed and contracted to sell the Subject Premises to Ciervo in accordance with the terms, conditions, and covenants of the Agreement including the payment of certain liens and expenses (i.e. mortgage) from the monthly payments made by Ciervo. 17. Ciervo agreed and contracted to purchase the Subject Premises for $119,900, with $29,975 as a down payment and $89,925 at 8.5% interest in monthly payments of $885.53 for 180 months. 18. Ciervo has continually abided by the terms, conditions, and covenants of the Agreement, satisfying his duties and obligations thereunder. 19. The Buttorffs have materially breached the terms of the Agreement by failing to pay certain liens and expenses associated with the Subject Premises, specifically the mortgage (principal and interest) from the monthly payments remitted by Ciervo. 20. As a direct and proximate result of the Buttorffs' material breach of the Agreement, Ciervo has not received the benefit of his bargain and has suffered damages in the amount of $23,729.12, or the difference between the balance that should have been owed on the 4 mortgage as of April 2003 ($52,927.70) and the amount actually paid to the mortgage company to satisfy the encumbrance after the April 2003 payment ($76,656.82). WHEREFORE, Plaintiff Alfonso V. Ciervo prays that this Honorable Court enter judgment in his favor and against the Buttorffs in the amount of $23,729.12, plus interest and costs including reasonable attorneys' fees and costs in pursuing this matter. SMIGEL, ANDERSON & SACKS, LLP Date;',';1?j?t{ ??? By1Q1? ?C ,)ttJ?( J er M. Good, .D.#64316/ Susan M. L wner, Esquire I.D. #82023 4431 North Front Street Harrisburg, PA 17110-1778 (717) 234-2401 Attorney for Plaintiffs VERIFICATION I, Alfonso V. Ciervo, verify that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Date: -? ? f " O l j? r/ Urge ?1't A fo V. Ciervo ,_ _. ", Q ? ', - ?' d? 1 a r - ? ?' ? _ ?.. '? v d \"_', SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-03077 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CIERVO ALFONSO V VS BUTTORFF WILLIAM D ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: BUTTORFF WILLIAM D but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LYCOMING County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 2nd , 2004 , this office was in receipt of the attached return from LYCOMING Sheriff's Costs: So answers: Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Lycoming Cc 35.00 Sheriff of Cumberland County .00 72.00 08/02/2004 SMIGEL ANDERSON SACKS Sworn and subscribed to before me this -/ a" day of o?pay A.D. Prothonotary SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-03077 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CIERVO ALFONSO V VS BUTTORFF WILLIAM D ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: BUTTORFF RUTH C but was unable to locate Her deputized the sheriff of LYCOMING in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On August 2nd , 2004 , this office was in receipt of the attached return from LYCOMING Sheriff's Costs: So answer " -? Docketing 6.00 Out of County .00 Surcharge 10.00 R. Thomas Kline .00 Sheriff of Cumberland County .00 16.00 08/02/2004 SMIGEL ANDERSON SACKS Sworn and subscribed to before me this Y? day of (2 awvf A. D. D. Q /Protho n y In The Court of Common Pleas of Cumberland County, Pennsylvania Alfonso V. Ciervo VS. William D. Buttorff et al SERVE: Willian D. Buttorff Oy 3a 17 No. civil Now, July 6, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lycaning County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, July 12, within Complaint , 20 04 at 216 o'clock P. M. served the upon William D. Buttorff at 306 Glover Street, Jersey Shore, Pa. by handingto Ruth Buttorff, his wife, a true and attested and made known to her Sworn and subscribed before me this 29 day of JULY, 20 04 xti,?x_/ v copy of the original complaint So answers, x l?C1 the contents thereof. Sheriff of LYCOMING. County, PA Charles T. Brewer COSTS SERVICE $ 24.00 MILEAGE 7.50 AFFIDAVIT 3.50 WILLWM J. Bt1RD $ 35.00 Profavtary & Clerk of Carta PAID 7/20/04 expires det1.4 2QA9 My CWaissim In The Court of Common Pleas of Cumberland County, Pennsylvania Alfonso V. Ciervo vs. William D. Buttorff et al 6q-3077 SERVE: Ruth C. Buttorff No. civil Now, July 6, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lycoming County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, July 12, , 20 04 , at 2: 16 o'clock p. M. served the within complaint upon Ruth C. Buttorff at 306 Glover Street, Jersey Shore, Pa. by handing to her personally a true and attested and made known to her copy of the original complaint the contents thereof. So answers, Sheriff of LYCOMING County, PA Charles T. Brewer Sworn and subscribed before me thiiS 29 day of JULY, . 20 04 /l.X .Yl A ?Yl_ 14' COSTS SERVICE $ MILEAGE AFFIDAVIT WILLIAM I BURR $ Proyrptotary & Clerk of Couft Vf?I. Lyng Cotwr Renee K. Simpson Deputy Prothonotary Curtis R. Long Prothonotary John E. Slike solicitor office of the protb"notarp (Cumbertaub Cou"tp CIVIL TERM ORDER OF TERMINATION OF COURT CASES Tx AY OF NOVEMBER 2007 AFTER N EL? HE NOTICE AND NOW OF THIS 5 D RECEIVING NO ESPON INTENTION TO PROCEED AND WITH p?ICE IN ACCORDANCE WITH PA CASE IS HEREBY TERMINATED R. C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY Square • Carlisle, Pennsylvania 17013 (717) 240-6195 • Fax (717) 240-6573 One Courthouse Sq