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HomeMy WebLinkAbout11-0069COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS 9th Judicial District, County Of Cumberland FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No. ~0 ~ ~ '~ Ct V~ NOTICE OF APPEAL NOTICE OF APPEAL Notice is given that the appellant has tiled in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. Tyson Woods Hon. Charles A. Clement, Jr. Mechanicsburg 5540 Moreland Court 12/14/2010 Village of Moreland Court II CV-0000522-2010 PA Tyson Woods 17055 notation is required under Pa. R.C.P. D.J. No. 10086. This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDERS to the judgment for possession in this case. If appellant was ClaimanP ' (see Pa. R. C. P. D. J. No. 1001(6) in action before a Magisterial District Judge, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. Signature or Prothonotary a Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Village of Moreland Court II Name o/ appellees) appellee(s), to file a complaint in this appeal (Common Pleas No. ~)-(p9 Civil7u-M )within twenty (20) days after service of r or suffer of judgment of non pros. Si furs of appellant or attorney or agent Maric~C. Duffle, Esq. RULE: To Village of Moreland Court II , appellees) Name of appel/ee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) if you do nat file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. ~(3) .l`he cJate of service of this rule if service was by mail is the date of the mailing. Date: _ # ~ ~" 3011. Signature of Prothonotary or Deputy r YOU M~~INCLUpE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-05 -,- ~M~ ~ ~FI~C? ~,p~ -~ ~fi ZQ~ ! ~~ -~ P~ 1: c,, ~ ~'Ett'~SYL~~'~P~~ ~,~~. s 91.75 ~~ by a~ ~ Deb'-~~~ Ck~ 3ssa9 ~ as3i s a COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Mag. Dist. No: MDJ-09-1-01 MDJ Name: Honorable Charles A. Clement Jr. Address: Olde Towne Commons 400 Bridge Street, Suite 3 New Cumberland, PA 17070 'Telephone: 717-774-5989 Mark Clifford Duffie, Esq. 301 Market St PO Box 109 Lemoyne, PA 17043-0109 :; Village Of Morelandcourt li ,~ V. '~ Tyson Woods Notice of Judgment/Transcript Civil Case Docket No: MJ-09101-CV-0000522-2010 Case Filed: 9/28/2010 Disposition Details Disposition Summary Docket No Plaintiff MJ-09101-CV-0000522-2010 Village Of Morelandcourt 1i Defendant Tyson Woods Disposition Disposition Date Judgment for Plaintiff 12/14/2010 Judgment Summary JointlSeveral Liability Individual Liability Amount Participant Tyson Woods $0.00 $1,623.33 $1,623.33 Judgment Detail ~*Post Judgment) In the matter of Village Of Morelandcourt li vs., Tyson Woods on 12/14/2010 the disposition is Judgment for Plaintiff and judgment was awarded as follows: Judgment Component Joint/Several Liability Individual Liability Deposit Applied Amount Civil Judgment $0.00 $550.08 $550.08 Costs $0.00 $79.75 $79.75 Interest $0.00 $27.50 $27.50 Attorney Fees $0.00 $966.00 $966.00 Grand Total: b7,623.33 ANY PARTY HAS THE RIGHT TO APPEALWITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILINGA NOTICE OF APPEAL WITHTHE PROTHONOTARY/CLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THiS NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED tN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICTJUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ,, ~~.,~; ~•. ,~ ,. ~ a 12/14/2010 '` Date Magisterial District Judge Charles A. Clement Jr. 4~~ ~' ~--, iiY'~ i I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date Magisterial District Judge Charles A. Clement Jr. MDJS 315 Page 1 of 1 Printed: 12/14/2010 1:03:27PM -1E RQTrHGNi'-', JAN 12 P 1: le rN 5YLW` 1e`,. PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served 9 a copy of the Notice of Appeal, Common Pleas No.? o 1-0upon the magisterial District Judge designated therein on (date of service) T-11, ? i? 20 11 ? by personal service ® by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) Village of Moreland Court II, on ?L, 20 11 ?by personal service® by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS 10th DAY OF January, 2011 Sig t f official of whom affidavit was rdAde Nbkd cv-V Title of official ' My commission expires on, 20 CoMMtoNWEALTH OF PENNSYLVANIA NOTARIAL SEAL Gail J. Mahoney, Notary Public Lemoyne Borough, Cumberland County commission ex 1m February 19, 2014 Signature of affian Mark C. Duffle, E Counsel for Appellant AOPC 312A - 05 • J Postal Scivice CERTIFIED MAIL RECEiPT' C3 M (Domestic Mail Only. , No Ins urance Coverage Provided) ' C3 OFFICI F 0 AL USE Ln 1 n 0 Postage $ \, ?? % t C / ? Certffled Fee I ?? se a M p Retum Receipt Fee (Endorsement Requued) y `uC / co U / 0 p Restricted Delivery Fee (Endorsement Required) i U :? U N $ Total Postage -Fees ( C4 I e Cr C3 C3 t f. N or PO Iti (Domestic No Insurance c overage • •-• S - O ill , 0 C3 Postage $ ru Certified Fee ' PFisknark C3 Return Receipt Fee + ra A zw`? (Endorsement Required) ?? C3 f Delivery e Fee - p R (Endorsement quired) I? f l Total Postage & Fees / to Cel.2^ / C3 ?'" KICS s p N t fit or PO Box No. - 4co-- k? G D r-#?. 3 - .. 1- '- , PA 1-7C)'70 Mark W. Allshouse, Esquire Attorney ID # 78014 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff VILLAGE OF MORELAND COURT II CONDOMINIUM ASSOCIATION, Plaintiff V. TYSON WOODS, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV ANIA M NO. 2011-69 CIVIL ?- CIVIL ACTION - LAW -T, -:; NOTICE TO PLEAD - , --- TO: Tyson Woods, Defendant c/o Mark C. Duffle, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. 301 Market Street Lemoyne, PA 17043 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 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 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Date: l/?//?b? 2 ." M k W. Allshouse Es ire torney ID # 78014 833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Mark W. Ailshouse, Esquire Attorney ID # 78414 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff VILLAGE OF MORELAND COURT II CONDOMINIUM ASSOCIATION, Plaintiff V. TYSON WOODS, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-69 CIVIL CIVIL ACTION - LAW COMPLAINT AND NOW, comes the Plaintiff, Village of Moreland Court II Condominium Association, by and through its attorney, Mark W. Allshouse, Esquire and respectfully files the following Complaint and in support thereof avers as follows: Plaintiff, Village of Moreland Court II Condominium Association (hereinafter "Association"), is a condominium association duly established and authorized as set forth in the Public Offering Statement effective July 20, 1988 and recorded in the Cumberland County Recorder of Deeds Office in Miscellaneous Book 373, Page 1108 together with all amendments to Declaration made thereafter, including the First Amendment to Declaration dated October 10, 2008, having an address of P.O. Box 1522, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Tyson Woods, is an adult individual having a current address of 5540 Moreland Court, Mechanicsburg, Cumberland County, Pennsylvania 17055. Defendant purchased his condominium unit number 5540 under and subject to the recorded Declaration of Condominium Association as previously set forth above. 4. Article XIV of the Declaration sets forth each unit owner's liability for payment of assessments by the Association. A true and correct copy of Article XIV is attached hereto and made a part hereof marked as Exhibit "A". 5. Section 14.2 of the Article provides, inter alia, that each owner shall pay all assessments, levied by the Association and that such payment shall be due and payable on a monthly basis. 6. Unit owners have been provided written notice by the Condominium Association that all monthly unit payments shall be due by the fifth (5`h) of each month. Otherwise, a five percent (5%) late fee will be assessed on those payments, by language included on all past due invoices. 7. Despite request, Defendant has failed to pay monthly Association fees in the amount of.-Ninety-one and 68/100 Dollars ($91.68) per month since July 2010 through the present. 8. In addition, Defendant has incurred a late fee in the amount of Four and 58/100 Dollars ($4.58) for each month. 9. Section 14.6 of the Article states that a delinquent unit owner shall be obligated to pay all expenses of the executive Board for collecting Association dues, including reasonable costs and attorney's fees incurred in the collection. 10. Currently, the Association has occurred attorney's fees in the amount of Four Thousand One Hundred Fifty and 501100 Dollars ($4,150.50) which amount will continue to accrue throughout the pendency of this litigation. 11. Defendant has been contacted on numerous occasions through written invoice to advise him of his delinquencies. 2 12. As of the date of the filing of this Complaint Defendant owes Association dues and fees as follows: A. Unpaid dues for the months of July 2010 to January 2012 $1,741.92 B. Late fees for the months of July 2010 to January 2012 $ 87.02 C. Attorney's fees (which will continue to accrue) $4,605.50 D. Costs/fees (which will continue to accrue) $ 80.17 Total $6,559.61 13. Defendant is in breach of his obligations as a unit owner pursuant to and under the Declaration of Condominium as referenced herein. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant in the amount of Four Thousand Nine Hundred Sixty- three and 35/100 Dollars ($5,963.35) together with all costs, attorney's fees and interest which may accrue during the pendency of this litigation. Respectfully submitted, Date: Ollzolz ?+ 090AQ52e ark W. Allsho s, Esquire ttorney # 780 4 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Exhibit "A" contained in the By-Laws or the breach of any provision of this Declaration or the Act by any unit owner or any tenant of such unit owner shall give the Executive Board the right, in addition to any other rights to which it may be entitled, to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any such breach. ARTICLE XIII - Management The Association may employ'a professional, experienced managing agent who shall oversee the daily operation of the Condominium, in accordance with the provisions of the Act, the Declaration, the By-Laws and the Rules and Regulations. ARTICLE XIV - Assessments; Liability of Unit Owners Section 14.1 Special Assessments. If the cash requirement estimated at the beginning of any fiscal year shall prove to be insufficient to cover the actual Common Expenses for such fiscal year, for any reason (including, by way of illustration and not limitation, any unit owner's nonpayment of his assessment), the Executive Board shall have the power, at any time and from time to time, as it deems necessary and proper to levy one (1) or more Special Assessments against each unit owner: Section 14.2. Payment of Assessments. Each owner shall pay all assessments levied by the Association. Such assessments shall be due and payable on a monthly basis as designated by the Executive Board. Section 14.3. Use of Assessments. All monies collected hereunder shall be used for the purposes designated herein. Section 14.4. Failure to Fix New Assessments. If the Executive Board shall fail to fix new assessments for common Expenses, for the subsequent fiscal year, before the expiration of any fiscal year, the unit owners shall continue to pay the same sums they were paying for such assessments during the fiscal year just ended, and such sum shall be deemed to be the new assessments for the succeeding fiscal year. If the Executive Board shall change the assessment at a later date, such new assessment shall be treated as if it were a Special Assessment under Section 14.1 hereof. Section 14.5. No Exemption by Waiver. No unit owner may exempt himself from liability with respect to the Common Expenses by waiver of the enjoyment of the right to use any of the Common Elements or by the abandonment of his unit or otherwise. - 32 - Section 14.6. Personal Liability of Unit Owners. All sums assessed by the Association as an Annual or Special Assessment, together with interest thereon at the then maximum legal rate from the 30th day following adoption of the resolution fixing such assessment or from such due date or dates (in the case of assessments, payable in installments) as may be provided in such resolution, shall constitute the personal liability of the owner of the unit so assessed and also shall, until fully paid, constitute a lien against such unit pursuant to Section 3315 of the Act. The Association may take action for failure to pay any assessments or other charges pursuant to Section 3315 of the Act and may assess a late charge for failure to pay any assessments or other charge on the date on which it is due. The delinquent owner shall be obligated to pay (i) all expenses of the Executive Board, including reasonable attorneys' fees, incurred in the collection of the delinquent assessment by legal proceedings or otherwise; and (ii) any amounts paid by the Executive Board for taxes or on account of superior liens or otherwise to protect its lien, which expenses and amounts, together with accrued interest, shall be deemed to constitute part of the delinquent assessment and shall be collectible.as such. Section 14.6.1. Confession of Judgment. IN ORDER TO EXPEDITE THE EXECUTIVE BOARD'S COLLECTION OF ANY DELINQUENT ASSESSMENT, EACH UNIT OWNER (BY ACCEPTANCE OF THE DEED TO HIS UNIT) SHALL BE DEEMED TO HAVE APPOINTED ANY ONE OR MORE EXECUTIVE BOARD MEMBERS THE ATTORNEY-IN-FACT FOR SUCH UNIT OWNER TO CONFESS JUDGMENT AGAINST SUCH UNIT OWNER IN ANY COURT OF COMPETENT JURISDICTION IN PENNSYLVANIA, FOR ANY SUCH UNPAID ASSESSMENT(S), WHICH APPOINTMENT (BEING FOR SECURITY) SHALL BE IRREVOCABLE; AND FOR SO DOING, A COPY OF THIS ARTICLE AND SAID DEED, BOTH VERIFIED BY AFFIDAVIT, SHALL BE IRREVOCABLE; AND FOR SO DOING, A COPY OF THIS ARTICLE AND SAID DEED, BOTH VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL THE DECLARATION SHALL BE TERMINATED. Section 14.7. Unpaid Assessments Upon Execution Sale Against a Unit. Any unpaid assessments which cannot be promptly collected from the former unit owner may be reassessed by the Executive Board as a Common Expense to be collected from all of the unit owners, including (by way of illustration and not limitation) the Purchaser who acquired title at the sheriff's sale, his successors and assigns, and any holder of a Permitted Mortgage who comes into possession of a unit by deed in lieu of foreclosure or assigned in lieu of foreclosure. Section 14.8. Liability of Purchaser of Unit for Unpaid Assessments. Notwithstanding the provisions of Section - 33 - 14.6 of the Act, upon the voluntary sale, conveyance or any other voluntary transfer of a unit or any interests therein, the grantee thereof shall be jointly and severally liable with i the grantor thereof for all unpaid assessments for Common Expenses which are a charge against the unit as of the date of ! consummation of the sale, conveyance or transfer; but, such joint and several liability shall be without prejudice to such grantee's right to recover from such grantor the amount of any such unpaid assessments which such grantee may have paid, and ! until any such assessments are paid, they shall continue to be a lien against the unit which may be enforced in the manner set forth in Section 3315 of the Act. Section 14.9. Subordination of Certain Charges. Any fees, charges, late charges, fines and interest that may be ! levied by the Association, pursuant to Sections 3302(a) (10), ! (11) and (12) of the Act, shall be subordinate to any first ! lien Permitted Mortgage. ! Section 14.10. Utilities. Utilities to the Premises ! will be separately metered and shall be billed directly to the unit owners by the applicable utilities unless otherwise ! determined by the Association or Declarant. ARTICLE XV - Option to Contract the Condominium ! Section 15.1 Reservation. Declarant hereby i explicitly reserves an option until the 7th anniversary of the recording of this Declaration to contract the Condominium from ! time to time in compliance with Section 3212 of the Act without ! the consent of any unit owner or Mortgagee. The option to contract may be terminated prior to such anniversary only upon the filing of an amendment to this Declaration by the ! Declarant. Declarant expressly reserves the right to withdraw any or all portions of the Withdrawable Real Estate at any time, at different times, in any order, without limitation, ! except as set forth in Section 3212 of the Act, and without any ' requirement that any other real estate be withdrawn, added or converted; provided, however, that the Withdrawable Real Estate ! shall not exceed the area described on Exhibit D hereto. The exact dimensions of the Withdrawable Real Estate shall be adjusted by Declarant in conformity with the applicable governmental requirements for development, subdivision or ! withdrawal (without joinder of unit owners). There are no other limitations or assurances on the option to withdraw the withdrawable Real Estate from the Condominium. - Id VERIFICATION I, Jeff Jaxheimer, President of Village of Moreland Court II Condominium Association, being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Village of Moreland Court II Condominium Association Date: AM CQVc? By: he er, President C- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, as follows: Mark C. Duffle, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. 301 Market Street Lemoyne, PA 17043 Date: j 1611,7-0(z CIA?ark . ? , W. Allshuse Esquire : ID # 7801 4833 Spring Road Shermans Dale, PA 17090 (717) 582-4006 Attorney for Plaintiff Johnson, Duffie, Stewart & Weidner By: Mark C. Duffie I . D. No. 75906 301 Market Street P.O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcda-*dsw.com VILLAGE OF MORELAND COURT II CONDOMINIUM ASSOCIATION, Plaintiff V. Attorneys for Defendant, Tyson Woods IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-69 ?. TYSON WOODS, CIVIL ACTION - LAW Defendant NOTICE TO PLEAD TO: Village of Moreland Court II Condominium Association Mark Allshouse, Esq. 4833 Spring Road Shermans Dale, PA 17090 AND NOW, this 16'h day of April, 2012, you are hereby notified to plead responsively within twenty (20) days of the date of service hereof, or judgment may be entered against you. JOHNSON, DUFFIE, STEWART & WEIDNER Date: ?- By: Mark C. Duffie, E ire Attorney I.D. No. 75906 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Counsel for Defendant, Tyson Woods :491596 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 mcd@jdsw.com VILLAGE OF MORELAND COURT II CONDOMINIUM ASSOCIATION, Plaintiff V. TYSON WOODS, Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-69 CIVIL ACTION - LAW ANSWER TO PLAINTIFF'S COMPLAINT, NEW MATTER AND COUNTERCLAIM OF DEFENDANT TYSON WOODS AND NOW, comes the Defendant Tyson Woods, by and through his counsel, Mark C. Duffie, Esquire, and Johnson, Duffie, Stewart & Weidner, and files the following Answer, New Matter and Counterclaim to Plaintiffs Complaint. Admitted in part and denied in part. It is admitted that Plaintiff, Village of Moreland Court II, Condominium Association is a Condominium Association duly established and having an address of P.O. Box 1522, Mechanicsburg, Cumberland County, Pennsylvania 17055. It is denied in that the Association was not duly established and authorized as set forth in the public offering statement but established and authorized as set forth in the Declaration of Condominium dated December 20, 1989 and effective upon the recording of the Declaration in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Miscellaneous Book 373, Page 1108. The Declaration of Condominium was amended three times with respect to adding convertible real estate to the Condominium as well as a fourth and last time on October 10, 2008 by what is identified as a First Amendment to the Declaration of Condominium. 2. Denied. Defendant, Tyson Woods, is an adult individual having a current address of 1943 S. Market Street, Elizabethtown, Pennsylvania 17022. 3. Upon information and belief, this allegation is admitted. 4. Upon information and belief, this allegation is admitted. 5. Upon information and belief, this allegation is admitted. 6. Upon information and belief, this allegation is admitted. 7. Upon information and belief, this allegation is admitted. 8. Upon information and belief, this allegation is admitted. 9. Upon information and belief, this allegation is admitted. 10. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of said averment and strict proof thereof as demanded. 11. Upon information and belief, this allegation is admitted. 12. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or said averment and strict proof thereof as demanded. 13. The averments set forth in paragraph 13 are legal conclusions to which no response to pleading is required. To the extent a response required, the same as specifically denied. WHEREFORE, Defendant Tyson Woods request that the Complaint of Plaintiff be dismissed and a judgment be entered in favor of the Defendant and against the Plaintiff. NEW MATTER 14. The Defendant hereby incorporates his answers to paragraphs 1 - 13 as those the same were set forth here at length. 15. In the Declaration of Condominium as Amended, Article 3 defines the unit boundaries. 16. With respect to said unit boundaries, the lowest horizontal plane of each Unit is defined as, "The Unit - side face of the concrete slab, brick or underlayment constituting the floor of such unit..." 17. Article 4 defines and sets forth the Limited Common Elements as it pertains to each Unit. In Section 4.1 of Article 4, a Limited Common Element related to a Unit is that portion of Limited Common Element serving only the Unit above, below or adjacent to such Limited Common Element. 18. In the Defendant's Condominium Unit, there is a basement/crawl space accessible only through the Defendant's Unit and therefore is a Limited Common Element by definition set forth in the Declaration of Condominium and the Pennsylvania Uniform Condominium Act. The Defendant's Unit also has a detached garage to the rear and pursuant to the Declaration of Condominium, the yard and exterior deck between the Unit and the detached garage is a Limited Common Element. 19. As defined in Article 5, the Common Elements constitute the balance of the Condominium which include but is not limited to, the roofs, gutters, downspouts, subsurface storm water facilities and other yards or open space not defined as Limited Common Elements. 20. Since the Defendant purchased the Unit located at 5540 Moreland Court on May 30, 2006, the Defendant has experienced water problems in the basement/crawl space. 21. In December 2010, a subsurface storm water pipe which accommodates the gutters and downspouts for the Defendant's Unit and the neighboring Units, separated and discharged water into Defendant's crawl space. 22. The Plaintiff made attempts to repair the pipe and the mold caused by the standing water in Defendant's basement/ crawl space but the problem continued. 23. The exterior grading and the associated storm water management plan in the Common Areas are causing repeated water infiltration into Defendant's basement/crawl space. 24. As a result of this consistent water infiltration in Defendant's basement/crawl space, Defendant has attempted but has been unable to sell his Unit due to this problem. 25. On the date of the initial flooding, December, 2008, the association took several years until it made any effort to remediate the resulting mold problem in the Defendant's basement. 26. As a result, the Defendant withheld association dues as the Plaintiff failed to remedy a problem that occurred in a Limited Common Element below the Defendant's Unit as a result of a storm water issue originating in the Common Elements. 27. While the Plaintiff has made recent efforts to clean the mold, they have made no further effort to address the storm water distribution over the Common Elements, and as a result, the Defendant has continued to withhold payment of association dues as a result of the Plaintiff's failure to address it's maintenance responsibilities in the Common Area. 28. While Section 14.6 of the Declaration of Condominium provides that the Defendant is obligated to pay reasonable attorney's fees and expenses, the bulk of the attorney's fees and expenses that have been incurred to date have been a result of the Plaintiff's failure to repair or maintain the Common Areas which resulted in the water damage to the Limited Common Elements associated with Defendant's Unit. 29. The Plaintiff's failure to maintain and repair the Common Elements are resulting in the damage to the Limited Common Elements associated with the Defendant's Unit relieves the Defendant of any obligation to pay assessments until such maintenance and repairs have been completed. WHEREFORE, the Defendant, Tyson Woods, requests that the complaint of Plaintiff be dismissed and a judgment be entered in favor of the Defendant against the Plaintiff. COUNTERCLAIM 30. The Defendant, Tyson Woods, incorporates by reference the averments, set forth in paragraphs 1-29 as if set forth at length. 31. The Plaintiff, by its failure to maintain and repair Common Areas having caused continued damages to the Limited Common Element (basement/crawl space) of Defendant's Unit is in breach of the Declaration of Condominium and the Covenants containing therein and is therefore liable for said damage. WHEREFORE, the Defendant, Tyson Woods, demands judgment in his favor and against the Plaintiff, Village of Moreland Court II Condominium Association in an amount not to exceed the arbitration limits in the County of Cumberland, together with interests and cost of suit. Respectfully submitted, JOHNSON, DUFFIE, STEW,,4?& WEIDNER Mark C. Duffle I.D. No. 75906 301 Market Street P.O. Box 109 Lemoyne, Pennsylvania 17043-0109 Attorneys for Defendant VERIFICATION I, Mark C. Duffle, attorney for Tyson Woods, hereby certify that the matters asserted herein constitute matters of record, legal arguments and matters within the direct knowledge of counsel. The statements contained herein are true and correct to the best of the knowledge of the undersigned. This verification is made pursuant to the provisions of 18 Pa.C.S.A. §4904. Date: Y /? 11;? i CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on April 16, 2012: Mark Allshouse, Esquire 4833 Spring Road Shermans Dale, PA 17090 Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Mark C. Duffle MCD: kab:491063 ,} 'Lull 2 OCT 16 Ply 12: Q 4 CUMBERLAND MJCNI PENNSYLVANIA Johnson, Duffie, Stewart & Weidner By: Mark C. Duffie I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 VILLAGE OF MORELAND COURT II CONDOMINIUM ASSOCIATION, Plaintiff ATTORNEYS FOR DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-69 CIVIL V. TYSON WOODS Defendant CIVIL ACTION - LAW PRAECIPE TO MARK THE DOCKET SETTLED, SATISFIED AND DISCONTINUED TO THE PROTHONOTARY: Kindly mark the above docket settled, satisfied and discontinued with respect to both Plaintiffs cause of action and Defendant's counterclaim. MARK W. ALLSHOUSE, ESQUIRE f By: 12? ark W. Allshouse Counsel for Plaintiff Date: /U/q101 Z- JOHNSON, DUFFIE, By: Mark C. Duffie Counsel for De & WEIDNER Date td• r• 11, 517662