HomeMy WebLinkAbout01-2617 R. LEN WELLER, JR. and : IN TIlE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLER, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
: NO. 01-2617 CIVIL TERM
V. :
: CIVIL ACTION-LAW
HARRY H. FOX, JR. and :
ANN FOX, husband and wife : JURY TRIAL DEMANDED
Defendants. :
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by an attorney and filing in writing with
the court, your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so, the case may proceed without you and a judgment may be entered against you
by the court without further notice for any money claimed in the complaint or for any other claim
or relief requested by the plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, OO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN (}ET LEOAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
R. LEN WELLER, JR. and : IN THE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLER, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
: NO. 01-2617 CIVIL TERM
V. :
: CIVIL ACTION-LAW
HARRY H. FOX, JR. and :
ANN FOX, husband and wife : JURY TRIAL DEMANDED
Defendants. :
COMPLAINT
NOW, come Plaintiffs, R. Len Weller, Jr. and Virginia A. Weller, by and through their
attorneys, O'BRIEN, BARIC & SCHERER, and file this Complaint and, in support thereof, set
forth the following:
1. R. Len Weller, Jr. and Virginia A. Weller, ("Wellers') are husband and wife, adult
individuals who reside at 1 $ Mare Road, Carlisle, Cumberland County, Pennsylvania.
2. Defendants, Harry H. Fox, Jr. and Ann Fox are husband and wife, adult
individuals who reside at 15 Montego Court, Dillsburg, Pennsylvania.
3. On or about July 18, 2000, the Wellers entered into an Agreement for the Sale and
Purchase of Real Estate with Defendants. A true and correct copy of the Agreement for Sale is
attached hereto and incorporated as Exhibit 1.
4. Pursuant to the Agreement for Sale, the Weilers were to purchase a lot designated
as Lot #4 (the "property") from Defendants in the Mandy Meadows development located in West
Pennsboro Township, Cumberland County, Pennsylvania.
5. The Agreement for Sale was amended by and Addendum "A", a true and correct
copy of which is attached hereto as Exhibit 2 and is incorporated. The Addendum provided, in
relevant part, as follows:"Seller agrees to provide Buyer with a site investigation and percolation
test report for an on-lot sewage disposal system, issued by the township sewage enforcement
6. On or about August 11, 2000, the property was conveyed by the Defendants to the
Wellers by special warranty deed. A tree and correct copy of the deed ofconveyanee is attached
hereto as Exhibit 3 and is incorporated.
7. Defendants created, developed and sold residential building lots in the
development known as Mandy Meadows. As part of the development efforts for the property,
Defendants ordered and paid for site investigation and percolation test reports for each lot in the
development.
8. Aaron P. McKonly was the agent of the Defendants in the transaction between the
parties having held himself out to the Wellers as having authority to act on behalf of the
Defendants.
9. At all relevant times hereto, Aaron P. McKonly held himself as an agent for the
Defendants and the Defendants represented to the Wellers that McKonly was their agent.
Alternatively, the Defendants ratified the acts of McKonly undertaken by him on their behalf.
10. At the time of execution of the Agreement For Sale, Defendants were aware that
the Wellers intended to build a residence on the property. Further, Defendants and/or their agent
were aware of the proposed location of the residence of the Wellers to he constructed on the
2
property. Defendants supplied the Wellers with a drawing identifying the proposed location of a
residence on the property prior to execution of the Agreement For Sale. A tree and correct copy
of the drawing is attached as Exhibit 4 and is incorporated.
11. At the conclusion of the real estate settlement for the property, McKonly handed
to the Wailers a site investigation and percolation test report for the property. A true and correct
copy of the site investigation and percolation test report ("sewage test report") is attached hereto
as Exhibit 5 and is incorporated.
12. The sewage test report was dated October 11, 1998 and, upon information and
belief, had been in the possession oftbe Defendants prior to entering into the Agreement For Sale
with the Wellers.
13. The sewage test report contained the following written information:
"4B &4C - OLD DUMP SITE-FILL OVER JUNK"
14. The sewage test report was never provided to or discussed with the Wellers prior
to the execution of the Agreement For Sale or the closing for the property.
15. Upon reviewing the second page of the sewage test report which contained the
statement set forth at paragraph 13, the Wellers contacted McKonly regarding the reference to a
dump site on the property. The Wellers were informed that the "junk" had been removed and
clean fill provided.
16. Subsequent to closing, the Wellers began to clear the property for the construction
of their residence. This work included many hours of labor to remove brash on the property
which was in the area were the foundation for the house was m be built. During the process of
3
clearing this area, the Wellers discovered that junk and debris had not been removed, rather, a
thin layer of topsoil had merely been place over the junk and debris. The junk and debris
consisted in part of construction materials such as shingles, car parts, glass and plastics and other
sundry items and was in some areas several feet deep.
17. As a consequence of the location of the junk and debris on the property, the
Wellers were precluded fi~m building a residence where they had intended without first having
to remove the junk and debris.
1 g. The Wellers have sold the property to other individuals as a direct and proximate
result of the junk and debris on the property which precluded the Wellers from building a home
where they had intended.
19. The damages incurred by the Wellers include, but are not limited to the following:
a. Closing costs for the sale of the property $3,220.00
b. Title insurance $ 627.00
c. recording fees $ 61.00
d. transfer tax $ 419.00
e. county/school property taxes $ 99.43
f. sound mound design fees $ 200.00
g. equipment rental for land improvements $ 310.00
h. interest paid on loan $3,095.54
i. labor for land improvements $2,000.00
TOTAL: $ ! 0,03 i.97
4
COUNT-I
NEGLIGENT MISREPRESENTATION
R. LEN WELLER, JR. and VIRGINIA A. WELLER v.
HARRY H. FOX, JR. and ANN FOX
20. Plaintiffs incorporate paragraphs one through nineteen as though set forth at
length.
21. Defendants, by and through their agent, negligently mis~presented to the Wellers
the condition of the property including the ability of the Wellers to build a residence on the
property in the area of the hidden junk and debris.
22. The Wellers justifiably relied upon the representations of the Defendants.
23. The representations were false, directly or by innuendo, and were intended to
deceive the Weliers.
24. These misrepresentations caused the Wellers to incur the aforementioned costs
end expenses in purchasing the property end preparing it for the consffuction ora residence.
25. These representations were intended to and did induce the Wellers to conclude the
purchase of the property.
26. Defendants were aware of the condition of the property long before entering into
the Agreement for Sale with the Wellers and had a duty to disclose the location of the junk and
debris on the property.
27. Defendants and/ur their agents undertook to hide the condition on the property by
causing fill to be placed over tbe junk and debris on the property.
WHEREFORE, Plaintiffs request jodgment in their favor and against the Defendants as
follows:
1. the sum of $10,031.97,
2. interest and costs of this action, and
3. such other relief as this court deems just and proper.
UN COUNT-II
FAIR TRADE PRACTICES AND CONSUMER PROTE .
R. LEN WELLER JR. v. nn,~.~ ...... CTION LAW
28. Plaintiffs incorporate paragraphs one through twenty-seven as though set forth at
length.
29. The actions of Defendants are in violation of the Unfair Trade Practices and
Consumer Protection Law. 73 P.S. §201-1, et seq.
30. Defendants represented that the property had uses or benefits which it did not
have, to wit, the property could be used for the construction of a residence by the Wellers in the
location represented to the Wellers by the Defendants as appropriate for the residence without
having to remove junk and debris from the property.
3 I. The Defendants otherwise engaged in fraudulent conduct which created a
likelihood of confusion or misunderstanding on the part of the Wellers including, but not limited
to, the aforementioned representations.
6
32. Said acts and omissions by the Defendants are violative of the Unfair Trade
Practices and Consumer Protection Law including, but not limited to, Sections 201-2(v),(vii) and
33. Plaintiffs seek an amount not in excess of the compulsory arbitration limits.
WHEREFORE, Plaintiffs request judgment in their favor and against the Defendants as
follows:
a. the sum of $I0,031.97;
b. costs, interest and attorney fees;
c. a trebling of the actual damages; and
d. any other relief that this court deems jnst and proper.
Respectfully submitted,
David A. Baric, Esquire
I.D. # 44853
17 West South Slreet
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiffs
da b'dir/litigation/weHer/eomplaint, pld
VERIFICATION
The statements in the foregoing Complaint are based upon information which have been
assembled by our attorney in this litigation. The language oftbe statements is not our own. We
have read the statements; and to the extent that they are based upon information which we have
given to our counsel, they are true and correct to the best of our knowledge, informat/on and
belief. We understand that false statements herein are made subject to the penalties of lg Pa.C.S.
~ 4904 relating to unsworn falsifications to authorities.
R. Len We/let, Jr.
Virginia A Wel/er --
I1. TITLE AND COSTS:
a) The I~mfll~e aim to be CmlVgygd Iree ~nd dM M df k~. ~mbranc~ a~l el. emente, EXCEPTING HOWEVER:
nJchnavd~i~umdb,/ampumbleTlleln~mmeComp~aynltMmgulnrml~t~% ',..~.~..,-'..\ ., ..
b) ~ the ~ camm give a ~ nnd [l~kmble ,,e. ,.ch es wal be I.a.md 1)y,.&'mpmm~,.11~. m~a .n~e~C~q~nj~ at
regular mtee. Ihen Ihe Buyer ham the option 0l b/lng tach tltJe M m~ ~e0er ~ ~ ~'~d d ~-~'~
incu,T~ by me Buyer for fnepec~M .p4cdfled fn pnmg~ph ~c, an,~ ~11(~) items (~). (a). (3). a~ h paragraph
lbo Iltt~' r,~'t t Ihm shill be no further ilMity or OlJglliofl Off MIItllr OI lbo plJlJ~l hMelO and Ildi Agreement shMI become
NI.I~. AND VOfD ~nd .u Go~ ~l ~ mmpm~, .SdM's ~gent~,r c~meuon.
· Nol~llae ~tl~' d p~y I(x the fqloMng: ,~..,,', - · .'. '% .,
fee. ilm~y. ,. .... .,.~',,,., .... ,~ ;... ,.,_ ,, ..., .,Tr~,,;,-',,.,,.,~%, . ..
__ .~.~uye~: ~ n _m,~ oo.tq, . ". '
e.w. .... _ ' ·
12. DEPOSIT AND RECOVERY FUND: I~poaite eCMnd ((l~.ie.e ,h~l be pakJ to .eo.~,Se~ ''~~m
Ihe r, eller may hold any uncelhed check [~.-.,7~,-~,7 aa depoelt Jxmdk~ 1he acceplam~e d ~ ~c b~ Ihe eV&"ll d (~,al)ute Io~ lbo
Judgmem due Io fraud, mi~epmeentaUon o~ deceit in a mai ufate tmn~tlon by a Pmmsy~va~la ffcensee. For co~lele
(~717-793-3656.
~3. ~hb--G~D FOSSESmON:
dean, Iree o~ debM o*' by deed and aulonmegtt al re(bfog bese(a) at tlnle of selde~ g p~ ~ ~ ~ ~
b) 8eMr wil.flpt_ enter bltO any new .lea~e~. wdRen. W .(~ exi~lng leaseB, l/en¥o M the premiM8 without exFesaed w~tlen
14. MAINTEN~EANO RI~K OF. LJ~: :~'~.' % ~,'- ':~.".-',' ~'. .
b) Sener eha, bear dak ol Ion Imm tim, m' omer mmummM u~ m~ ~lee~ll~ me event d damaO~ to
Inch~d b..~m ul~ by tim m' by omm'eamue#~ not a~QM~I or minced p~m. lo amtfemenl. Ouy~r ml~?. ~ ~ ~ M
m~cfnoll~g mi. Agreement Ind meeMng d monlee peJd on aGeounl m' ol aGeep~ng 01e pRq)Mly ~ b ~ ~ ~
[nterem m 1nm pmpel~ a8 o~ 1he lime of Ihe W M ihll AgmemenL -,.%
15.AECOnDmO: 11~ Agmem.nt ahaJl not be r. cmded fn me Ome. fer 1he Re(xxdfng M Deeda m. In any ~r M M ~ M
publb recoiL
16.~ Thi~gremnmlt Mb~lX'lTo~X~x~,~leio~l~'~lk. le~pectlvehek~pe~lo~j mpm~ntab~, guar~ana
n) Io [n'm=~d ngalnm me BuyM for ~ notual danmgu; m'
hemfn, Wr mlde by 1he ~gent fro' Ihe Buym,, 1hi .40ent for 1he W. m. Iny M M W UMW, ~
dflme, W ixlrmem.
'rile eu~r hu qm.~ to pu~ the pmpedy mn n. pm.~t ~[,h.~ unto..mew np.dMd hemh. # k kdlmr
~reM0nedbydpemllleh~.~.a~;,,..,mfonn. · /" "-.'~.--",."-- -~.'-'~',,'-~..X' ...-,~. -
~I~V~ t~ BY ~ov~ TI~__ PlJ~a~ he~oo blt&'~k~ k) I~ legdY Ixmnd her.~Y, .hp~J~mmd~r ~t thMr hmlde ~ --.
·
ADDENDUM A
TO ^OP~EMEt, rr O~ SA~. m MAUn TInS .=Jllk...~ DAY OI,
AND
7(Q(am~d) Ti~ UI~ff~3~I~D BUYRI~ A.~U~'qO ~ P0R TIER. CONTRACTO~ AS
WELL, ~ ~ A~ ~ ~Y ~ ~ ~A~ ~ ~R ~
~ ~D ~ ~ ~ ~ ~A~ ~N ~A~ ~ ~AGE
~ ~ ~ ~O~ ~A~ ~ ~T,~T, ~
~T $EWA~ FA~ ~ ~ ~ 7 ~ ~ A~ ~ ~ ~ ~
D~ ~ ~ ~ ~ ~ ~ A ~W~E FA~
~ ~ ~~ ~ ~l~ ~~PSEW~
~1) ~ ~Y~~~~~,AG~ ~,
EXHiBiT 2
B~em: ~Y ~ ~X ~ and~ G' ~ hb wlf~ ofDIbb ~
York~un~,PA · .'
~mb~tnd ~un~, FA · ,
EXHIBIT 3
ALL THAT C~]t. TATN ~ac~ of land ..~tu~ I},JnS nnd IMng h West Pmmbafo TownddP,
BHGINNDqlG at t'pabt h ac nnsr tho'~...or J~..11~ itqad (T-326~ thenos mmhuins in
nd .h,~_ aid mdwu~ ,bq'oUov, hS emzrm md diG.-,;,~. Q South22deStus ~ mlnum 12
seconds Hm~, a'dlmnm or S6.0S0 b~ to I poin~ 2) thane by I n to lb s~Sht havlq a
radiul of 12~t~.640 ~lt. an s~, I,..._~h otp 199..~4 a., and a dmnl i~ of ~mlh I? ~ ~ '?
mimatm 31 _.,,,.,,,d. gasz. & dMsm~ of 199.3';6 bst to a pob~ 3) 1beam Sou& 13 defines Il
~ md e,~.d.~8 dins Lat No. S .o. rb badmbr rshud to i PI~....S~. 69
tl.~,~. 29 mlmbm 43 ~ Wesk t dbtmeo or 547.640 n"d to a pobtt at Lot no. ;~ 0tm
herebubr zUGnred to ~ pan; bn0e dons b bst menC~rdd bnds Nmb 67 deJmn
27 ndmge8 32 ..,,,~- We~, a b af307.1,44 ~ to & point at o4lm' lands M of Bdpr C-
h,,),u~ ,b doas ib Imf me.mad trna Neflh 61 deJms 08 mbuUs 12 mends Hut. a
dJsmmo of'791,975 bi to b pa[~ and PI~ oFB~X~qG*41NG.
CONTA~NG a p n of 4.26S sam snd a net n of&~0 nam md being dasJpuled as
Lot No. 4 m a Phial SubdivMoa Plsn orMmdy Madov~, la'epmud by Shdb' & Mt~r,
prah~ad I,aM.Surve)qm. bid Plan b ns:~tnl~d h lbo OmsdJedmd (~mn~y bax~s
Ob h Plan Bodt ";9, at Pq~ 44.
mtsblidmlenll. The~ shill bo penni .1~. no outlido dos ?hsmm..~.. ,Ihsn tht sl,md b 2
ptwerty. Hasu d~l be paudtad sg..k~s m b .nulntmm~ of hanes b m ~G~Ganc~
myJoe, doMiusnc~L ' ... · ~ ' ·
PROP. l(
\ / DRIVEWAY
/ .'
// ...
II
/F '"'
~ aP i"
/ / ..
'\
e 81 / . '
/
SED y .....~. · \ ..i.~. · · ·
,a~ .e. -)/~' ,
., ~..~ -..
.. ~ .~'~.
'l _y'=-/"7~:' ""
.,.~'~.. ~'// /,,....
EXHIBIT 4
3~e4~.FM.WQ02goA Rev. 11igS COMMONV~ALTIt OF PEN#SYLVANIA
. ~EPAR~E~ OF E~I~ONME~ PROTE~ON
IUR~U M WASA ~ ~EM~
SITE INVESTIGATION AND PERCOLATION
TEST REPORT FOR ON-LOT DISPOSAL OF SEWAGE
ER-BWQ-2g0 ~pe~ix A
~UITA~E SoilType~ Slope ~-~ ~ DepthtoUmitingZo~e ~ Ave. Perc. Rate~
~ UNSUITABLE ~Mottling ~ See~orPondedWater ~ Bedrock ~ Fra~ures ~ Coarse Fragments
~ Pert. Rate ~ Slope ~ ~ Unstabilized Fill ~ Floodplain ~ ~her
INSTRU~IONS FOR COMPLETION OF THIS FORM ARE LO~TED ON THE REVERSE
SOILS DESCRIPTION:
SoiSsDescription Complete by: ~~ ~ ~ Date; % ~ ~ ~
~ Inches D~cdptlon of Horizon
0 TO
TO
PERCO~TIO~ TEST:
Percolation Test Complet~ by: ~~ ~ ~ Date: ~ ~v
Weathe~ Conditions: ~ Below 40~ ~ 4~ or above ~ DW ~ Bain, Sleet, Snow (last 24 hours)
Soil Conditions: ~ Wet ~ D~ ~Frozen ~~ ~ ~ ~ ~
.,, R~dlflg Reading Reading Reading Rlldl~ R~dl~ Reading
Reading No.1: No.2: No.3: NoA: Ho.5: No.S: No.7: No.l:
HoJ4 No. j lateral Inch~ I~es In,es In,es Inches inches Inches
YesJ No of drop of dap ~ drop of drop of drop of dap of dap of drop
·" Water remimin~ in ~be hole at the end of the fiKa130-minute presoak? Yes, use 30-minute mte~Bl; Ho, use 1 O-minute
~akula~ion of Average Percolation Rate:
Hole No. final period Minutes/Inch of Hole The information provided Is ~e true and
& . ? correct result of tests conducted by me,
or verified I~anner approv~by the
~ ~: ~ ~ ~ge Enforceme~r
Mia
EXHIBIT 5
36J~O-FM.WQ02gOA Roy. 11/gS COMMONWEALIX OF PENNSYWANIA
SITE INVESTIG T:ON AND
TEST REPORT FOR ON-LOT DISPOSAL OF SEWAGE
ER-BWQ-2~ Ap~ndix A
Application No. Municipality~ County~ .
Site Location ~~ ~. ~ Subdivision Name ~
~UITABLE SoilType~ Slope~ De~htoLimi~ingZone &~ Ave. Perc. Rate~,.
~ UNSUITABLE ~ Moiling ~ Seeps or Ponded Water~... _~dr°ck ~ra~ur~ ~ C~eFragmenU
~ Perc. Rate ~ Slope ~ Un~abiliz~ill ~ FIo~plam ~ ~her
INSTRU~IONS FOR COMPLETION OF THIS FORM ARE LO~TED ON THE REVERSE
SOILS DESCRI~ION:
SoilsDescrip~ionComple~eby: ~ ~ Da~e: ~
inches Des~i~ion ~ Ho~on
TO
~~ ~ ~~ ~~ Depth t6 Limiting
~O TO~'~ . Zone:
ZO TO~Z' t~ ~ ~l~ ¢~ . ~o~ ~ ~ inches
PERCO~TION TEST:
Percolation Test Completed by: ~~ ~ ~ Date: ~ ~ ~ '
WeatherConditions: ~ Below~*F ~0'F or above ~ ~ RaJn, Sleet, Snow (last 24 houn)
Soil Conditions: ~ Wet ~ D Frozen ~ ~~ ~
... R~di~ R~ding Re~ing RMi~ RMing R~ RMt~ ReMI~
H~IiNe. R~di~ No.1: No.2: No.]: No~: No.5: N~.6: ~.7: No.l:
lnti~al Inch~ lnch~ In,es In,is In~ I~h~ lnch~ Inches
Yes No of drop ~ drop ~ drop of drop ~ drop of drop
'" Water remaining Zn the hole at the end o~ the final ~minute prmak? Yes. use ~mlnute inte~al: No. use 10-minute
Calculation of Average Percolation Rate:
Drop during PeK. Rate as Depth
Hole No. final period ~inutesflnch of Hote The intormation p~lded is the true and
I ~[~ . ~ ~ . correct result of tes~ conducted by me,
pe~orm~ under~y ~al su~wision,
Z ~ ~ ~: or verifi,~ ~,nner appm~ by the
TOTALOF~IN/I~ ~ = ~. Inch
R. LEN WEI.I,ER. JR. and : IN THE COt)RT OF COMMON PLEAS OF
VIRGINIA A. WEI.I,ER. : CUMBERL,AND COUNTY. PENNSYLVANIA
husband and wife, :
Plaintiffs. N(.). d9 / - ~0~/"~ ~
CIVIL ACTION-LAW
V.
FOX..IR. and
.ILIRY TRIAL DEMANDED
ANN G. FOX.
husband and wile.
Defendants.
_PRAECIPE FOR WRIT OF SUMMONS
TO THE PRGT}IONOTARY:
Please isstle a Writ of Summons in the above-referenced case oil behalf of the Plaintift~. R.
Len Weller, Jr. and Virginia A. Weller. to the Detkndants, I larry H. Fox. Jr. and Ann G. Fox.
O'BRIEN, BARIC & SCHERER
Da~:~fl//~7 _ David A. Baric. Esquire
I.D. ~ 44853
17 West South Street
Carlisle. PA 17013
(717) 249-6873
Please serve the Defendants as follows:
I-larry ]-L Fox. Jr. and Ann G. Fox
15 Montego Cot, rt
Dillsburg, Pennsylvania. 17019
":il :1'111111 IIIIIIIIIIIIIIIIIIIIIIII ! I II
Commonwealth of Pennsylvania
County of Cumberland
R. Le~. #ell~ro Jr. and
V~r~nia &. ~ler,
hus~d ~d
Court of Con. on Ple~
H~ H. ~x, Jr. ~d No. 01-26X7 ~X ~ 19 ....
.....................................
X5 ~nt~ ~u~ In .............................................
'fo H&L&I H. FOx, Jr. ~nd Ann G. Fox, husband and wife
You are hereby notified that
R. /~m Me.t].~o 3to ami Viz~l_,aia
the Plaintiffs ha v~ornmenced an action in _~_(~.l.~_-_..IgtM_ ...............................
against you which You are required to defend or a de[ault judgment ma}, be entered against you,
(SEAL)
/s/ curt~s R. Long
Prothonotary
I
R. LEN WELLER, JR., and : IN THE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLER, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
v. : NO. 01-2617
;
HARRY H. FOX, JR., and ANN FOX, :
husband and wife, : CIVIL ACTION - LAW
Defendants. :
DEFENDANTS' PRELIMINARY OBJECTION
TO PLAINTIFFS' COMPLAINT
AND NOW, this2, ~ day of Sanuary, 2002, come Defendants Harry H. Fox, Jr., and Arm
Fox, by their attorneys, Irwin, McKnight & Hughes, and make the following Preliminary Objection
to Plaintiffs' Complaint, and in support thereof aver the following:
Preliminary Obleetiou in the Nature of a Demurrer
1. Plaintiffs R. Leu Weller, Jr., and Virginia A. Weller ("Plaintiffs") seek, in their
Complaint, damages for alleged negligent mis~presentation and violations of the Unfair Trade
Practices and Consumer Protection Law by Defendants Harry H. Fox, Jr., and Arm Fox
("Defendants").
2. Plaintiffs' claims are rooted in a real estate transaction in which Plaintiffs were
buyers and Defendant Harry H. Fox, Jr., was the seller. A copy of the Agreement of Sale is
attached hereto as Exhibit "A", a copy of Addendum A to the Agreement of Sale is attached
hereto as Exhibit "B", a copy of the Deed conveying the real estate to the Wellers is attached
hereto as Exhibit "C", and a copy of the Deed conveying the real estate to Harry H. Fox, Jr., is
attached hereto as Exhibit "D"; all of these docureents are incorporated herein by reference.
3. Ann Fox is not named as a seller under Paragraph I of the Agreereent of Sale.
See Exhibit "A" attached hereto.
4. Ann Fox's signature does not appear as a seller at the end of the Agreement of
Sale. See Exhibit "A" attached hereto.
Ann Fox's re,trois do not appear anywhere on the Agreement of Sale regarding
changes to the Ag/~eereent of Sale. See Exhibit "A" attached hereto.
6. Ann F°x is n°t named as a seller on Addendure A to the Agreereent of Sale, See
Exhibit "B" attached hereto.
7. Ann Fox's signature does not appear as a seller at the end of Addendum A to thc
Agreereent of Sale. See Exhibit "B' attached hereto.
8. Ann Fox's initials do not appear anywhere on Addendure A to the Agreereent of
Sale regarding changas to the Agreereent of Sale. See Exhibit "B" attached hereto.
2
9. The "Being" clause of Exhibit A to the Deed from Fox to Weller states that the
premises were previously granted and conveyed fi.om Donald I. Myers and Tammy L. Myers to
Harry H. Fox, Jr. See Exhibit "C" attached hereto. Ann Fox was joined in the conveyance
solely to convey any rights she may have in the premises by and through her marriage to Harry
H. Fox, Jr. See Exhibit "C' attached hereto.
10. Although Ann Fox's name and signature appear on the Deed from Fox to Weller,
they appear solely by virtue of her marriage to Harry H. Fox, Jr. See Exhibit "C" attached
hereto.
11. Because she neither owned the real estate nor took part in the sale of the real
estate to Plaintiffs, Ann Fox is not a proper defendant in this case and no valid claim has been
pled against her.
12. The Complaint is legally insufficient with respect to Ann Fox as no claim has
been stated against her upon which relief can be granted. Pa.R.C.P. No. I028(a)(4).
13. In the alternative, Ann Fox is a misjoined and/or unnecessary party. Pa.R.C.P.
No. 2232(b).
WHEREFORE, Defendants Harry H. Fox, Jr., and Ann Fox respectfully request this
Honorable Court to grant their Preliminary Objection in the nature of a demurrer pursuant to
3
Pa.R.C.P. No. 1028(a)(4) and dismiss Plaintiffs' Complaint as it pertains to Defendant Ann Fox
due to its legal insufficiency with respect to Defendant Ann Fox.
In the alternative, Defendants respectfully request this Honorable Court to treat this
motion as one to drop a party pursuant to Pa.R.C.P. No. 2232Co) and requests that the motion be
granted with respect to Defendant Ann Fox.
Respectfully Submitted,
IR?TeT~,i~T & HUGHES
D. Schwartz, Esquire
Supreme Court ID # 70216
West Pomfret Professional Building
60 West Pornfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Dated: January ~__~_~, 2002 Attorneys for Defendants
4
F-,2fHIB T T ~'A"
'11. YITLE AND COST'~:
~1 ~ premMs are Io be cor~myed line ~nd ~r ~ MI ~., I~rl~. ~ elm~N*, EXCE~ING ~VER:
~.717-78~.
~mln. ~ .~r W ~ ~e ~t Mr ~e ~r. ~e ~eM ~ Mler. M ~y d ~Mr m~ ubWe. ~
EXH'r BTT
ADDENDUM A
TO AOR~EMENT OF SA?:, tS lvIADI~ ~li~ ~ DAY O~
lJ
AND
~ p~ ~~AO~~DA~ IFm DAY
~d) ~ ~ B~ ~ ~~ ~R ~ia ~
SY~ ~ ~ ~~ ~ ~A~ ~0~ ~
~V~ ~A~ ~A~ A~, P~ (1~ 1~5 ~ '~ ~ ~ ~ ~
~T SEWAGE PA~ ~ ~ ~ 7 ~ ~ A~ ~ ~ ~ ~
IT W~ ~D. ~ ~ ~WA~ ~ S~t~ ~ DA~ ~ ~.
~1) ~ ~ ~Y ~ ~ ~ ~ ~D~ ~ ~ ~, AG~S~ IF
P~ ~ ~T~~AO~M~EBE~L~
DIS~ ~ ~M ~ ~ B~ ~ ~ ~'S A~ S~
BY ~ B~
~ ~ ~ ~ ~ONS ~ ~ ~~D AG~E~ OF ~ ~
EX~D ~AY OF ~ 20 ~ . ~ ~G ~ BE ~Y ~
~. 2~ ~2~ ~'J/z&._ ~,~: ,-,,.
EXHIBIT "C"
R~Oi~OC'.'~ ~)~ hEEDS '" · · '
· CUldL~EP,~N~ C0U,qTY?'P'~ ': ' · · ' ~?;'~-"
'OOflgGtS:. p, fll122. ..-' .. · ':
,,.,..,..,or
~'XllOIJ~kN])p000) ' ' ":::.:.~...'.:...'. v '.. '
Between: HARRY t~ l~X J'r]~, aid'ANN ~?FOX, his wife, of DIIbburg,
YorkCount~,FA' . .' ' ...". ' ' .;"~ .
part. end '.' ..
Cumberland Count}', PA · ; "· · , '
~ (hereinalter calla] of tl~
WITNES~ETH~ that tho said Onmim(s), ~ md in oomidegttlon of tho sum of L~o~"one
Lot 4, Mandy Meadows, as mo~u specifically set foflh in ~,,J,~.~!t 'A" Attached hereto,
hereby conveyed. '"
, '.~..' . ~.... ~, .?,,,~ ...:. :'..:~ .. ~.,:. , . . . . ..
· . .' ~ 22? P,.u
J
mifmtes 49 ~..,~d, But. a did;f nco ot.39.g29 her to a pab~ hi hid roidu~;, nS
rmdw~, nad mtmdins daq Lot 14'o. S of,h~ bt,~_?nff z~nmi k~ mbdivi~m Plan, S°uth ~
27 aduute8 32 Nmmb Wes~ t dimm~ of'3~7.144 bf to I point '* otber bnds ~q;F orEdpr ~-
),(ye~ tbmoo dins b 1ut m~_~,d Imds Nal~ 61'delnses 08 mira~tm t2 seamds FJst, a
db~n~o cd'7~1.975 foet eo ~ho point and .X~a~. of .BR~q04~O. -
C:OlqT~4Di(3 a p I~a or 4.265 U d I M I~ o[4.0~0 I~1 ~d bdq diw~n~xi u
OflIc~ h II,tm Bodt 79, at ~q,P 44.
c~lith~u ~ m-biclc ]inap of m:~. and to mo
deal~dto, nnwi~tblmd. '"' .,;.~ ; "'
I b'ibdl be Pamittd n~eccumu]''Im °f ddx/sdunlc m' '''~llc~:~d Rblchs'
un]m Impt .....
:3. Ali thSb stm7 mddedld .s~r~~mu mai hr° '~ mlnbum °r 1200 squm fi°et
hbhed Uvins mw. ,Ail Bi-Levd. C~ Cbd 6c. oibr 1J smr~-F~-' d''d;'] smlcture, must hsve a
minimum or isoo sture bst of'hidmS tlr'mS u~. '. All Me-sm~ raid~tld stn~tues rout
have a nialmum oF 1800 fquuo fast of' .flnid~. Uqdn~ m'n.
emblidnen~ Trim d~llbopeml .~d.no°ut~b .~S. ?~J~t~ln~~s~t h'2
· dop, wd no mo~ ibm 2 dop.lMy bo pe~.. tted ~l~Mo o: mY zueaeaull
5. ,Fim~ dill be pmnit~d no ~mm~bl r~sln8 of*bwl, Hmtoc~ o~ hop ou the
mua~ty b droll bOlml~U~d fo Io~si' lb mli~-m'~''~ °fh~ses i j in SccG~lnc° v''~zh
·
EXHIBIT "D"
'98 OCT ltl
MADETHE /,," dayor (~)~L~C'e v- , inLheyesroi'ourLordOnc
Thousand Nine Hundred and Ninety-eight (1998).
DONALD I. MYERS and TAMMY L. MYERS, his wile, or'West Pennsboro Towuship,
Cunlberland Courtly, PA
GI~ANTORS
AND
HARRY H. FOX JR., o£ Dillsburg. York County, Pennsylvania,
GRANTEE
WITNKSSKTII. that in consideration or'the sum of.Sixty-nine thousand nine hundred
dollars, ($69,900.00), in hand paid. tile receipt whereof'is hereby acknowledged, the said
Granlors do hercby grant and convey, in tee simple, to the said Grantee, his heirs, and
assigns:
ALL THAT CERTAIN tract o£1and situate in West Pennsboro Township. Cumberland'
County, Pennsylvania. being Lot I 1, as shown on. Subdivision Plan for Donald !. Myers,
recorded in Cumberland County records in Plan Book 77, nt page 99, more particularly
bounded and described as £ollows. to wit:
BEGINNING at a poinl, a railroad spike in tile centerline or'Crossroad School Roed
(T-435), nt cmmnon comer of'Lot No. I and Lot No. I I, as shown on Subdivision Plan
for Hazel E. Myers dated May 21, 1996 and recorded in Cumberland County Plan book
72, at page 120; thence along Lot No. I, being lands N/F or'Hazel E. Myers. North 6!
de.ecs 08 minutes 12 seconds East, I, 198.42 £eet to a railroad spike in the centerline
Kerrsville Road (L.R. 21004); thence over the centerline o£ Kerrsville Road by the
Ibllowin§ courses and distances: I) South 22 de~mes 13 minutes East, 86.05 feet to a
point; 2) thence by e curve to the right having a rcdius of' 1262.64 t'eet, an arc distance or
199.58 I'eet to n point; 3) thence South 13 degrees 18 minutes 49 seconds East, 259.34
feet to a point; Ihe41ce by a curve to the lelt herin§ a radius or 166.60 feet. an arc distance
o1'277.31 £eet to a point; thence North 71 degrees 18 nlinutas 50 seconds East 2.23 I'eet
, , 00x 187 PAG ?9
to a railroad spike; thence along lands N~ or Hazel E. Myers, South 02 degrees 28
m nutes 29 seconds East 190.76 Feet to an iron pin; theeee along lands orsame, South 09
degrees $8 minutes 23 seconds Eut 150.00 Feet to an iron pin; thence along lands NF of
Donald !. Myers South 74 degrees 44 minutes 34 seconds West, 480.$(~"reet to a point;
thence along lands orthe same north 28 degrees I I minutes I'/seconds West 121.68 feet
Io a point; thence alon~ lands of same* South 62 degrees 13 minutes 29 seconds West,
294.98 Feet to a railroad spike in the centerline et'Crossroad Schcol Road (T-438); thence
over the centerllnu ot'Crosarond School Road by the following courses and dista.nces:
North 55 degrees 41 minutes 41 seconds West 135.57 feet to a point; North 52 degrees
52 minutes 51 seconds West 191.36 feet to a point; North 53 degrees 26 minutes 37
seconds West 98.34 Feet to a point; North 54 degrees 51 minutes 41 seconds West 62.71
Feet to a point, by a cot~'e to the right having a radius ot'527.52 teet, an arc distance or
129.35 Feet to a point; North 40 degrees 48 minutes 45 seconds West 66.58 feet to a
point; by a curve to the left having a radius oF844.72 feet, an arc distance oF 109.84 feet
to a point; North 48 degrees 15 minutes 48 seconds West 82.87 feet to a railroad spike,
the point and Place o£BEGINNTNG.
CONSISTING OF 20.8624 ACRES, MORE OR LESS.
BEING ALL orLot no. I 1 as shown on Subdivisico Plan for Hazel E. Myers, recorded in
Cumberland Counly Plan Book 71, at page 120, now Plan or Donald I. Myers, recorded
in Plan Book 77, at page 99.
IT BEING the same premises which Hazel E. Myers, widow, by her deed et'August 23, ..../,,... :.
1996, and recorded in Cumberland County records in Deed Book 144, at page 929, ~:. - .~)
granted and conveyed unto Donald I. Myers and Tammy L. Myers, his wife, Grantors
herein.
AND THE said Grantors hereby covenant and agree they will Warrant ,¥P£CI,,II.,/o ¥ the
property hereby conveyed.
I~' WlT~V~¥,~ ~'///'.*J~EOF, the said Grantors have hereunlo set their hands and seals the
day and year first above written.
WITNESS:
r ---~' ~/1'~] (SEAL)
MYERS /
TAMMY(~. ''
:1.87 80
CERTIFICATE OF RESIDENCE:
I hereby certify the precise residence of the Grantee(s) herein is ns follows: ,...
..~.~/~o.~. ~0o ,.?xc -~.. a:_~.~ a ..',~, t,'~--~--~--
c!2, ~ ~,~.,'r, ~;,~ .~_?.. 'Z~ .~.~,._...~'~ ?~¥~'~-. .
COMMONWEALTH OF '"~l-,J :
co~Nr~ oP e.w,~--~'-~''v''= :
On ,bis tbg ~X day of ~i ~ , 19~, before me, a NoraO Public,
uude~igned o~cer, pemonnlly appeagd:
DONALD L. MYERS AND TAMMY L. MYERS, filS WIFE
~own to me, or ~tlsractorily proven to be fl~e per~n(s) whose Name(s) i~a~ subscribed to the
within ins~ment, nnd ~owl~ged that I~ ex~u~d ~e ~e for the pu~os~ tbe~in
contnln~.
IN WI~ESS WHEREOF, [ ~ve hereumo set my hnnd ~d no.iai seal
NOTARY PUBLIC ; L~.~,¢~:," "c'"~~'
M~..,~,,.. ~,~, ~. ~. ~ ] '~;~'c~"~
· ~;,]:.: :.;,..'..,
0~ ~e~~, in ~d f~umberlnnd County, P~nsylv~li.. ~coac?i~.~,¥'z~ ¥.'V
~~.~ ~ ~ ~ ~,~,.~.~ ;.-.-...
,.,.,,~ - ~ - - .~ .... ;~,,. .. .
~ ~ ~ ~ ~ ~ m .. -~ ~%.,,...:,.,..
~ ~ ~. ~ ~ ~ ~ ~ ~ ........ ~ ....,.
~ ,..~~-- ...... ~;,,.... la..._..~ ~..%,~[
~--~ = [ ~/~ .... , ,,~.
CERTIFICATE OF SERVICE
I, Mark D. Schwartz, do hereby certify that I am this day serving a true and correct copy
of the foregoing document upon the person, and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same
with the United States Post Office in Carlisle, Pennsylvania, postage prepaid, and addressed as
follows:
David A. Baric, Esquire
O'Brien, Baric and Scherer
17 West South Street
Carlisle, PA 17013
IRWIN, Me~N IGHT & HUGHES
60 West Pomfret Street
Carlisle, PA 17013
717-249-2353
Supreme Court I.D. # 70216
Attorney for the Defendant
Date: January 7"~ ,2002
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2001-02617 P
COMMONWEALTH OF PEN~SYLVkNIA:
COUNTY OF CUMBERLAND
WELLER R LEN JR ET AL
VS
FOX HARRY H JR 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:
FOX kNN G
but was unable to locate Her in his bailiwick. He therefore
deputized the sheriff of YORK County, Pennsylvania, to
serve the within WRIT OF SUMMONS
On May 25th , 2001 , this office was in receipt of the
attached return from YORK
Sheriff's Costs: S .
Docketing 6.00
Out of County .00 ~ Kline nl
Surcharge 10.00 R. ~hQ~as
.00 S~r~//ff of Cumberland Cou
.00
16.00
05/25/2001
O'BRIEN, BARIC & SCHERER
Sworn and subscribed to before me
this ~ day of ~,~,
~_$o; A.D.
~ ~ Prothonot'ar~'
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2001-02617 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WELLER R LEN JR ET AL
VS
FOX HARRY H JR 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:
FOX HARRY H JR
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of YORK County, Pennsylvania, to
serve the within WRIT OF SUMMONS
On May 25th , 2001 , this office was in receipt of the
attached return from YORK _~~
Sheriff's Costs: S~ ~..~
Docketing 18.00 __ . ~
Out of County 9.00
Surcharge 10.00 ~.R-;-' T~mas Kline
Dep. York CO 77.68 ~ Sheriff of Cumberland County
.00
114.68
05/25/2001
O'BRIEN, BARIC & SCHERER
Sworn and subscribed to before me
this .;/~ day of ~. J
' I Prothonot~r~ '
J* OT Z
COUNTY OF YORK
OFFICE OF THE SHERIFF
28 EASTMARKETST., YORK, PA 17401 (717) 771-9601
· SHERIFF SERVICE p ]N~ll~JOTIONS
~ ~ ~U ~PROCEss RECEIPT and AFFIDAVIT OF RETURN LE
~of
ADVANCED FEE PADI BY SHERIFF OUT OF COUNTY
~TE' ONLy Appm~- ~ CUNRFp/aNn
RIC & SCHERER 17 W. SOUTH ST. CARL~
SLE, PA 17~ ~SER ~E~
CANARy. She.frs Office 4. BLUE. Sherdt's Of~----'-'~-~ J~ = ~ECEJVED
* ul ~ · ~lk...? -
COUNTy OF YORK ................
OFFICE OF THE SHERIFF'
28 F..AST MARKET ST., YORK, PA 17401
PROCEss SHERIFF SERVICE
RECEIPT and AFFIDAVIT OF RET
1 PLAIN~FFIS! ~. . URN
'"" " '-- " ~""" " ~ '~6'/.7
to law. This deputJzation beth-, m-~ ,20~ I, SHERIFF OF ~C~)UNTYi PA, do hereby deputize lite
u auea~t~erequ~dri~kc~f~thUeNpTY~aint~ri~c~teth~Writ~dmakeretumthere~ac~rd~"g
& SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT V~LL ASSIST IN EXPEDITING SERVICE: ~ SHERIFF OF ,~ K' NTY
:]:".~ .~. r t ~.rlr~
...__~_~"~' FiE PAD/ ~v Sue., uUT .":t:' '~ ....
· '"'J.OTE'-ONLYAPm~r..,=.. -- --'; .~r.~ I I-I- . ' · ' :,,... j '.-'
, · 1Nthomawalch--._ . WRITOF;~=~ ........ : 'F'~J /[fi ,
~.: I~lrein~anyloss ~es~.~_l? Whomev~isfound~ ' ' ^I~ROFWRTCla~a~
-.,., r ,..(., ,-. ~,~==s BELO~ (-~ area must be cm~oisted if nofice is to~ maiisd) 5
' '" ' ' ;~'~'"
!' ~ ' Ilsuing AUthority 2 PINK. Altomey 3. CANARy. S,herifFs O~ce 4. BLUE. Sheriff's OfFice ~ VED
COUNTY OF YORK
2 0,2 OFFICE OF THE SHERIFF
28 EAST MARKET ST., YORK, PA 17401 (?17) 771-9601
SHERIFF SERVICE -~--~E~
PROCEss RECEIPT and AFFIDAVIT OF RETURN
3 DEFE T 1 1
~ -t~ w / UEI'ACH ANY COI~s
.1 S~tJ ~' E)
~, 20~ I, SHERIFF OF ~ CO - 'IHER --
Cumber 7 and
ADVANCED FEE PAID BY SHERIFF OUT OF COUNTY
--- ~ ~ CUMBERLAND
O'BRZEN. BAR~c & SCHERER ~7 ~. SOU
~EOFSE.CECo~-~..~_~ SOUTH ST. CARLISLE, PA 17013 ,o ~LE~NEN.BE"
CUMBERLAND CO. SHERiF~E~oaDDR;~"eL°~ ~""~"~,~~ 5-2-01
41. AFFIRMED art~.~),bar~bed to betofei ,~. this
~ 2 nf ~. '~"~'; kJ"4'~'~>~?.--- ..........
COUNTy OF YORK ............
OFFIC,,E OF THE SH
~ -----_____ -~..,,~. ERIFF ~.~.~,.
5HERI-- - ...... ~l.. YOR~ PA 17401 ~! ~ ~ '
PROCEss R~e=,-- FF SERVICE ..... "' ~ ~ '~
Aj .... Y 5t:t.:~[tF ~uT ~F '~")L':~Ty
,- ,, ... Ea~ADDREs ~m~ ~mg~ ~ ~ln u
.... mus~ ~ ~.~ ~ ~ · ~ be ~) . · '~ .... ~'~
~M f~ a~. .,.
~NOT F
'~~. ~'~"( , ~, _
R. LEN WELLER, JR. and
VIRGINIA A. WELLER, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
Plaintiffs, :
V. :
: NO. 01-2617
HARRY H. FOX, JR. and :
ANN FOX, : CIVIL ACTION-LA W
:
Defendants :
RULE TO SHOW CAUSE
AND NOW, this ~ day of October, 2002, upon consideration of the
MOTION TO COMPEL DISCOVERy, a rule is issued upon Defendant to show cause, if any
there be, why the relie£requested in the Motion to Compel Discovery should not be granted.
Rule returnable ~ _ days £rum service.
BY THE COURT,
R. LEN WELLER, IR. and
VIRGINIA A. WELLER, : IN THE COURT OF COMMON PLEAS OF
Plaintiffs, : CUMBERLAND COUNTy, PENNSYLVANIA
:
V. :
: NO. 01-2617
HARRY H. FOX, JR. and :
ANN FOX, ~ CIVIL ACTION.LA W
Defendants
.-
NOW, come Plaintiffs, by and through their attorneys, O'BRIEN, BARIC & SCHERER,
and file the within Motion to Compel Discovery and, in support thereof, set forth the follow/ng:
1. Plaintiffs filed this action which relates to the transfer ora lot of ground to
Plaintiffs by Defendants.
2. Defendants have filed Preliminary Objections to the
demurrer filed on or about January 22, 2001. Complaint in the nature of a
3. Counsel for Plaintiffs provided counsel for Defendants with Deposition Notices
on or about March 5, 2002, seek/ng to take the depositions of the Defendants on March 19, 2002.
True and correct copies of the Notices are attached hereto as Exhibit "A" anJ
4. Counsel for Defendants requested that the depositions, as u are incorporated.
the date set. noticed, be cancelled for
5. By correspondence dated March 15. 2002, counsel for Plaintiffs requested dates to
take the depositions °fDefendants. No reply has been received from counsel for Defendants.
WHEREFORE, Plaintiffs request that this Court direct the Defendants to appear before
counsel for Plaintiffs to be deposed on a date certain within forty-five (45) days of the date of the
order.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
David A. Baric, Esquire -
ID#44853
17 West South Street
Carlisle, PA 17013
(717) 249-6873
Attorney for Plaintiffs
D'~B/LJtiptJon/Weller/DJ$covery. mot
R. LEN WELLER, JR. and
VIRGINIA A. WELLER, : IN THE COURT OF COMMON PLEA
Plaintiffs, CUMBERLAND COUN y' . S OF
: T_, PENNSYLVANIA
V.
: NO. 01-2617
HARRY H. FOX, JR. and :
ANN FOX, ~ CIVIL ACTION-LAW
Defendants :
CERTIFICATION OF SERVICE
I hereby certi~ that on October 15, 2002, I, David A. Baric, Esquire,
Scherer, did serve a copy of the MOTION TO COMPEL of O'Brien, Baric &
postage prepaid, to the party listed below, as £ollows: DISCOVERY, by first class U.S. mai/,
James D. Hughes, Esquire
Attorney for Defendant
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, Pennsylvania 17013
· , quire
Attorney for Plaintiff
Date: October 15, 2002
~' R. LEN WELLER, JR. and : IN THE COURT OF COMMON PLEAS OF
!i VIRGINIA A. WELLER. :
i! husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA
:
!I Plaintiffs, :
;i : NO. 01-2617 CIVIL TERM
: CIVIL ACTION-LAW
HARRY H. FOX, JR. and :
ANN G. FOX,
husband and wife, : JURY TRIAL DEMANDED
Defendants. :
NOTICE OF DEPOSITION
TO: Harry H. Fox, Jr.
c/o James D. Hughes, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, Pennsylvania 17013
PLEASE take notice that the deposition of .
~ -tuut et seq. otthe Pennsylvania
of discovery and any other annro,~ 'o* ...... Harry H. Fox, Jr. wall be taken fo
· 'r ~n~,~ purpose pursuant to R,.,~ *^,,,- . r the purpoo,.
Rules of Civil Procedure, as amended, before a Notary Public duly authorized by law to administer
oath, on Tuesday, March 19, 2002 at 9:00 a.m. and from day to day thereafter until concluded at the
office of O'Brien, Baric &Scherer, 17 West South Street, Carlisle, Pennsylvania.
O..'BRIEN, BARIC & SC[4g~ gR
I.D. # 44853
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Exhibit "A"
CERTIFICATE OF S.ERVICF,
I hereby ceftin, that on March 5, 2002, David A. Baric, Esquire, of O'Brien, Basic & Scherer,
did serve a copy of the Notice of Deposition, by first class
listed below, as Follows: U.S. mail, postage Prepaid, to the parry
Harry Il. Fox, Ir.
c/o James D. Hughes, Esquire
.; Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, Pennsylvania 17013
David A. Baric, Esquire
R. LEN WELLER, JR. and
VIRGINIA A. WELLER, : IN THE COURT OF COMMON PLEAS OF
husband and wife, i CUMBERLAND COUNTy, PENNSYLVANIA
Plaintiffs, :
: NO. 01-2617 CIVIL TERM
V.
: CIVIL ACTION-LAW
HARRy H. FOX, JR. and :
ANN G. FOX, :
:
husband and wife, : JURY TRIAL DEMANDED
Defendants. :
NOTIC~E OF DEPOSITION
TO: AnnG. Fox
c/o James D. Hughes, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, Pennsylvania 17013
:, PLEASE take notice that the deposition of Ann G. Fox will be taken for the purpose of
~ discovery and any other appropriate purpose pursuant to Rule 4007 et seq. of the Pennsylvania
'I Rules of Civil Procedure, as amended, before a Notary Public duly authorized by law to
· 'iadminister oath, on Tuesday, March 19, 2002 at I 0:00 a.m. and from day to day thereafter until
il concluded at the office ofO'Brien, Baric & Scherer, 17 West South Street, Carlisle,
!I Pennsylvania.
O Bm N, BAmC & SCOUR
,, David A. Baric, Esquire -
'~ I.D. # 44853
.~ 17 West South Street
· i Carlisle, Pennsylvania 17013
.: (717) 249-6873
C~CERTIFICATE OF SERVICE
I hereby certify that on March $, 2002, David A. Baric, Esquire, ofO'Brien, Baric &
Scherer, did serve a copy of the Notice of Depositinn, by first class U.S. mail, postage Prepaid, to
the party listed below, as follows:
Ann G. Fox
c/o James D. Hughes, Esquire
Irwin, McKnight & Hughes
60 West Pomfret Street
Carlisle, Pennsylvania 17013
David A. Baric, Esquire
I ~ IFext South &reel
{.'arlixh,. Pemi. Wh.anht 17013
David.4. Btwh' (-ID 24~)-6873
i]lJcb¢ld .{. Nchercr P}t.r t-I D 24~-5755
E-nlai/: obx'tt:ob.vht~;col~l
March 15. 2002
VIA FACSIMILE: (717} 249-6354
Mark Schwartz, Esqui~
I~'in. McKnigla & Hughes
60 West Pomfmt Street
C~lisle, Pemtsylv~ia 17013
~: Weller v. Fox
De~ Mark:
. I w~t to t~e ~e Fox's deposition befo~ ~e Pmlimin~ Ob'~tions . ' . ~
pe~med under the Rules of CivP ~ ...... .' 'J am dec~ded as is '
the defenders. , -,,,~uum. me~e g~ve me a aate or dates to depose both of
Ve~. truly yours,
DAB/~.~x David A. Baric, Esquire
C¢: ~
da b.dir/litig~ ~ion/well~r/~ehw~rtz2.1tr
Exhibit "B"
PRAECIPB FOR LISTING CASE FOR ARGUMENT
[~ust be typewritte~ and submitted in
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please 14~t the within watter fo~ t_he next Argument Court.
CAPTION OF CASE
(entir~ c.~ ma~t be sta~ed in ~,ll)
R. LEN WELLER and
VIRGINIA A. WELLER,
husband and wife
( plaintiff
HARRY H. FOX, JR. and
ANN G. FOX,
husband and wife {Defendant)
No. 2617 Ci%d_lTerm ~ 2001
1. State matter to be argued (i.e., plaintiff's motic~ for ne~ tr(~l, defer~ant '~
clem~£=r to c~,%)la(nt, etc.):
Defendants Preliminary Objections
2. Identif~ ooun~el who w~ll argue case:
(a) fox Dl~(ntiff: David A. Baric, Esquire
Ac~s: O'Brien, Baric & Scherer
17 West South Street
Carlisle, Pennsylvania 17013
(b) for defendant: James D. Hughes, Esquire
;~m/~s: Irwin, McKnight & Hughes
60 West Pomfret Sbree~
Carlisle, Pennsylvania 17013
3. I w~ 11 notify ~ ~rtins in writing within t~o days that this case has
been ~mte~ fo~ az~t.
4. Argu~t Court Dete: October 22, 2003
Deted: September 10, 2003 Attorney fox Plaintiffs
R. LEN WELLER, JR., and : IN THE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLEI~ : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
v. : NO. 01-2617
HARRY H. FOX, JR., and ANN FOX, :
husband and wife, : CIVIL ACTION - LAW
Defendants. :
ORDER
AND NOW, this ~ day of ~, 2003, uP®
consideration of the Petition to Dismiss a Defendant and the Stipulation to Amend Parties signed
by respective legal counsel for the parties, it is hereby ORDERED that said Petition is Granted
and that Ann Fox is dismissed from this action.
It is further ORDERED that the Prothonotary amend the caption to reflect the dismissal
of Defendant, Ann Fox. It is further ORDERED that Defendant, Han'y H. Fox, Jr. is directed to
file an Answer within twenty (20) days of the date of this signed Order.
BY THE COURT:~ ~
R. LEN WELLER, JR., and : IN THE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLER, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
v. : NO. 01-2617
:
HARRY H. FOX, JR., and ANN FOX, :
husband and wife, : CIVIL ACTION - LAW
Defendants. :
PETITION TO DISMISS A DEFENDANT
AND NOW COME Defendants, by and through their attorneys, Irwin, McKnight &
Hughes. and in support of the Petition to Dismiss a Defendant aver as follows:
1. This action was commenced by a Complaint filed on or about October 31, 2001.
2. The named Defendants are Harry H. Fox, Jr. and Ann Fox.
3. The real estate transaction between the parties occurred on or about August 11.
2000.
4. According to Defendant, Ann Fox. pursuant to her deposition testimony taken on
November 19, 2002. she had no knowledge or information regarding the real estate transaction or
the subdivision known as Mandy Meadows.
5. Accordingly, the parties have consented to the dismissal without prejudice of Ann
Fox as a party Defendant in this matter as evidenced by the attached Stipulation to Amend
Patties signed by the respective legal counsel of the paxties.
6. Defendant requests Court approval of the dismissal of Ann Fox as a party
Defendant.
WHEREFORE, it is respectfully requested that this Honorable Court approve thc
dismissal of Ann Fox as a Defendant in this litigation.
Respectfully submitted~
IRWIN, McKNIGHT & HUGHES
By::~
Supreme Court I.D. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants
Date: October ~, 2003
2
R. LEN WELLER, JR., and : IN THE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLER, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
v. : NO. 01-2617
:
HARRY H. FOX, JR., and ANN FOX, :
husband and wife, : CML ACTION - LAW
Defendants. :
STIPULATION TO AMEND PARTIES
TO THE PROTHONOTARY:
THIS STIPULATION, made and entered into as of this /0~'g~' day of
~, 2003, by and between counsel for respective parties in the above-
captioned matter.
WHEREAS, the real estate transaction upon which this matter is based occurred on or
about August 11, 2000; and
WHEREAS, on or about November 19, 2002, Defendant Ann Fox was deposed at the
offices of O'Brien, Baric & Shearer; and
WHEREAS, Ann Fox testified that she has no knowledge or information regarding this
real estate transaction or the subdivision referred to as Mandy Meadows.
WHEREAS, based upon the above deposition testimony, counsel for the respective
parties have agreed that Ann Fox be dismissed as a party Defendant~ without prejudice to
Plaintiffs.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereby agree as
follows:
Ann Fox shall be dismissed as a party Defendant in the above-caption matter without
prejudice.
The Prothonotary is requested to amend the caption in accordance with this Stipulation
Dat~d:'~~~
Doug ,i~
~yfor~efendants_ //
David Barie, E~ui~
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I, Douglas G. Miller, do hereby certify that I am this day serving a lxue and correct copy
of the foregoing document upon the person, and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same
with the United States Post Office in Carlisle, Pennsylvania, postage prepaid, and addressed as
follows:
David A. Baric, Esquire
O'Brien, Baric and Scherer
17 West South Street
Carlisle, PA 17013
IRWIN & MeKNIGHT
60 West Pomfret Street
Carlisle, PA 17013
717-249-23.~3
Supreme Court I.D. # 83776
Attorney for the Defendant
Date: October O~ , 2003
R. LEN WELLER, JR., and : IN THE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLER, : CUMBERLAND COUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
v. : NO. 01-2617
HARRY H. FOX, JR., :
: CML ACTION - LAW
Defendant. :
PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS
TO THE PROTHONOTARY:
Please withdraw the Preliminary Objections to Plaintiff's Complaint filed on behalf of thc
Defendant. Harry H. Fox, Jr. in the above-captioned matter.
Respectfully submitted,
IRWIN, MeKNIGHT & HUGHES
Date: October 29. 2003 By: ~
~upreme ~.ourt ID #83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendant
CERTIFICATE OF SERVICE
I, Douglas G. Miller, do hereby certify that I am this day serving a true and correct copy
of the foregoing document upon the person, and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same
with the United States Post Office in Carlisle, pennsylvania, postage prepaid, and addressed as
follows:
David A. Baric. Esquire
O'Bden. Baric and Scherer
17 West South Street
Carlisle, PA 17013
IRWIN & McKNIGHT
By: ~
60 West Pomfret Street
Carlisle, PA 17013
717-249-23~3
Supreme Court I.D. # 83776
Attorney for the Defendant
Date: October 29, 2003
R. LEN WELLEK, JR., and : IN THE COURT OF COMMON PLEAS OF
VIRGINIA A. WELLER, : CUMBERLAND cOUNTY, PENNSYLVANIA
husband and wife, :
Plaintiffs, :
: NO. 01-2617
¥o
HARRY H. FOX, JR., :
: CIVIL ACTION - LAW
Defendant. :
PRAECIPE TO WITHDRAW APPEARANCE
To Curtis IL Long, Prothonotary:
Please withdraw the appearance of Douglas G. Miller, Esquire on behalf of the
Defendant, Harry H. Fox, Jr., in the above captioned case.
Respectfully Submitted,
IRWIN & MCKNIGHT
Dated: October 4' 2003 ~
Supreme Court I.D. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
PRAECIPE TO ENTER APPEARANCE
To Curtis IL Long, Prothonotary:
Please enter my appearance on behalf of thc Defendant, Harry H. Fox, Jr.. in the above
captioned case. Respectfully Submitted,
SALZM ~UGHES.~ FISHMAN
Date: October ~ _, 2003 ~m~ ~ ug~hes, ~'~qu,re
[ S~ar~ Eourt I.D. No. 58884
I 95 A)ffxander Spring Road
I C)~disle, Pennsylvania 17013
~,,/(717) 249-6333
CERTIFICATE OF SERVICE
I, James D. Hughes, do hereby certify that I am this day serving a true and correct copy
of the foregoing document upon the person, and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing the same
with the United States Post Office in Carlisle, Pennsylvania, postage prepaid, and addressed as
follows:
David A. Baric, Esquire
O'Brien, Baric & Scherer
17 West South Street
Car/isle, Pennsylvania 17013
Respectfully submitted,
SALZMA ~/NN, ~,~H~S & FISHMAN, P.C.
, 9~,~Alexander Spring Road, Ste 3
· .,A~arlisle. Pennsylvania 17013
I/ ~ (717) 249-6333
Date:_ {~ ~' O~
IN THE COUI~ OF (IPPI(~ t~.~S
3F ~ ODUNTY, PA
R. Le~ Weller, Jr., and
Virginia A. Weller,
Pla/ntiffs
V
tlarry H. Fox, Jr.
Defendant
SALZMANN, HUGHES
FISHMAN, P.C.