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HomeMy WebLinkAbout04-3791IN THE COURT Of COMMON PLEAS Of CUMBERLAND COUNTY MARGARET E. BAUERLE, PLaintiff/Respondent VS. VIVIAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants/Petitioners NO. 04-3791 CIVIL ACTION - LAW PETITION FOR EMERGENCY RELIEF The Defendant, Vivian BeitzeL, Gregory K. BeitzeL and Kelly L. Beitze[, by their attorney, Diane G. Radc[iff, Esquire, file this Petition for Emergency Relief as follows: Petitioners are Vivian BietzeL, Gregory K. BeitzeL, and Kelly L. BeitzeL, the Defendants in the above captioned case. 2. The Respondent, is Margaret E. BauerLe, the PLaintiff in the above captioned case. Petitioners are the owners of a certain tract of real estate known and numbered as 424 West Main Street, Mechanicsburg, PA 17055 (the "Real Estate"). The Real Estate is the subject of the within action. On or about March 3, 2004, PLaintiff and Defendants entered into an Agreement for the Sale of Real Estate ("Bauerle Agreement"), wherein Petitioners agreed to sell and Respondent agreed to buy the Real Estate. A true and correct copy of the BauerLe Agreement is attached hereto, marked Exhibit "A" and made a part hereof. In the Complaint filed in this action on August 3, 2004, Respondent alleged that Respondent was unable to secure a mortgage, and as a result asked for a refund of the down payment which was wrongfully refused by Petitioners. However, rather than ask for that refund as part of PLaintiff's claim for relief, PLaintiff prayed instead that Petitioners Defendants be enjoined from mortgaging or selling the Real Estate. A true and correct cop!/of the Complaint is attached hereto, marked Exhibit "B" and made a part hereof. As part of Plaintiff's CompLaint Respondent also filed a Notice of Lis Pendens, a true and correct copy of which is attached hereto, marked Exhibit "C" and made a part hereof. ConcurrentLy herewith Petitioners filed an Answer with New Matter and Counterclaim to PLaintiff/Respondent's CompLaint. A true and Correct copy of the Answer with New Matter and CountercLaim is attached hereto, marked Exhibit "D" and made a part hereof. The lispendens and/or a request for an injunction set forth in the Complaint was improper because: 1 This action is in law not in equity since all facts aLteged revolve around a claim for refund of the down payment; 2 A lis pendens only lies where the subject of the law suit invotves title to real estate. Plaintiff has not alleged one fact indicating she is entitled to title to the real estate. She has not claimed that she stilt wants to buy the property and that she has the funds to do so. The facts she has aLLeged do not involve title to real estate, only a claim for refund of the down payment. PLaintiff is not entitled to an injunction in the form requested because: 1. Plaintiff has not alleged sufficient facts for such an injunction. 2. If PLaintiff is entitled to a refund of the deposit monies, PLaintiff has an adequate remedy at law, thereby foreclosing a claim for an injunction. Plaintiff was and is in default of the Agreement in that PLaintiff: 1. FaiLed to make a written mortgage al;pUcation within ten (10) days of the date of the a~reement; 2. FaiLed to cooperate in the processing of the mortgage application; 3. Failed to the remaining $190,000.00 due at settlement on account of the purchase price. 4. Failed to attend settlement on the scheduled date. 2 10. The filing of the lis pendens has placed a cloud on Petitioner's title to the real estate thereby preventing them from selling the Real Estate since they cannot give clear, good and marketable title to the Real Estate to a new buyer. It is believed that Respondent filed this action and lis pendens to improperly force Petitioners to refund the down payment to Respondent even though Respondent is not entitled to said down payment refund. After Respondent failed to apply for a mortgage in a timely fashion and failed and refused to complete settlement, thereby breaching the Bauerle Agreement, Petitioners entered into another contract to sell the Rea[ Estate with John C. And Sally J. Ho[bert. (the "Holbert Agreement) . A true and correct copy of the Holbert Agreement is attached hereto, marked Exhibit "D", and made a part hereof 11. 12. 13. 14. 15. 16. 17. 18. The Holbert Agreement requires settlement to he held on or before September 30, 2004. The Holberts will not complete settlement on thE: Holbert Agreement unless the lis pendens is removed by the September 30 2004 settlement date. If settlement does not occur by the September 30, 2004 settlement date it is believed that the Holberts will not buy the Real [!state. The Petitioners will be harmed if the real estate is not sold to the Halberds. Respondent does not want to buy the Real Estate and has not called for settlement nor tendered the purchase price to the Petitioners. It is therefore averred that the Respondent would not be harmed if the relief requested herein were granted. The $5,000.00 deposit funds will still be held in escrow even though the Real Estate is sold to the Holberts, thereby giving adequate security to Respondent for her claim. If necessary said $5,000.00 can be paid into the court for safekeeping. No judge has been assigned to this case. A copy of this petition was faxed to Respondent:'s attorney, James A. Miller, Esquire, on September 27, 2004 who has not advised Petitioners' attorney, Diane G radcliff, Esquire of his agreement to the relief requested herein. WHEREFORE, Defendants/Petitioners pray this Honorable Court to schedule an emergency hearing in this matter and upon said hearing to enter an order vacating the Lis Pendens and authorizing Defendants/Petitioners to proceed with settlement on the Ho[bert Agreement. Respectfully submitted, A~IF.~-~-R~D~[L , QUI E 3 ~'B-l', r ! .q d t ed~'o a d Camp Hill, PA 1701 1 Phone: (717) 737-0100 Fax: (717) (.)75-0697 Supreme Court ID # 32112 Attorney for Defendants VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, retating to unsworn falsification to authorities. Date: -7- VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that fatse statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, retat~ng to unsworn fatsification to authorities. VIVIAN BEITZF'L 5 EXHIBIT "A" BAUERLE AGREEMI-'NT STANDARD AGREEMENT FOR THE SALE OF REAL ESTATE PA LICENSED BROKER AJS*2K PA LICENSED BROKER SELLING BROKER (Cammpany) DESIGNATED AGENT FOR BUYER (if applicable PROPERTY (1 -DB) Seller he.by agrees to sell an~ofivcy to Buyer, who hereby agrees lo purchase: _, called "Seller," and 4 5 3. TERMS (1-00) ,/ (B) Cash or check :tt signing this Agrecmeqt: ' ~ ~ (C) Cash or check ~Qd~in days of IhcX~xccution of this (E) Cash. cashieCs or ccflificd check al time of setltemcnt: (H) ' ' FIXTURES a PERSONAL prOPErTY (1-0%. " ..~Eces; and ,he raage/ov'en unless o~he~w'iCse st~t ed. A[iso included: . ~ ~,Rcgardiag ~he Seller's ~eny Disclosure A~t.) (PAR Buyer Initials: REALTORS® ~8 I::1 2. Buret I ......i¢.,,¢d scncr-'s discLos~ ~k~ow. I¢~d-basca paint a,,d/or lead-I,ased paint haz:,rds, ~ i~'e,,dhc,Ti[rtp,ar~aph 10(A~) and 23 aa0 12. STATUS OF WATER (1-00) Buyer lnifinls:. ~ )~l ~S-2K PaRe 5 of 8 Seller ]llitials: ~ 417 EXHIBIT "B" COMPLAINT Margaret E Bauerle Plaintiff Vivian Be[tzel, Grego~ K Beitzel, Kelly L Beitzel, Defendants in the Court of Common Pleas Cumberland County, Pennsylvania No.: Civil Action - Law NOTICE YOU HAVE BEEN SUED IN COURT. If )'ou wish to defend against the claim,4' set forth in the follow~ng pages, you must take action within twenty (20) days after this complaint and not, ce are served, b), entering a written appearance personally or by attorney and tiling in writing with the court your defenses or objections to the claims set forth against you. You are warned that ffyou 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 moaev claimed in the complaint or for any other claim oz' 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 t I.',.VE A L.-VWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea dcfend~'~'se las demandas que se presentan mas adelante en las siguientes paginas, debc~ tom~'~ accion dentro de los proximos veiente (20) dias despucs de la notificacioi¥ de e,~ ... Demanda )' .'\viso radicando personalmente o pot medio de un abo[laklo una comt:,mcccnc~a cscr, tax ra&cando en la Corte por escnto sus defensas de, y obJ~CjClOlle.~2 i' a, las demandas presentadas aqui en contra suya. Se le advk!rte de que si ust~d,fallathlb :.if'71~*'~ romar action como se describe anteriormente, el caso puede proceder sin us[ell y~u,n fallo po~' cua]quier suma de dinero reclamada en la demanda o cualquier olra '' reclamacion o remedio solicitado por el demandante puede set dictado en contra suya pot Ia CoNe sin mas aviso adicional. Usled pued perder dinero o propiedad u dercchos importantes para usted. USTI.7, D DEBE LLEV..kR ESTE DOCUMENTO A SU ABOGADO INMEDIATAIvIENTE. SI uSTED NO TIENE~UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O V'AYA A LA SIGUIENTE OFICINA PAR/\ AVERIGUAR DONDE PUEDF, ENC©NTRAR ASISTENCIA LEGAL. ~ , I jill . I'..',. 171~11 MargareL E Bauerle Plaintiff In the Court of C:om~on Pleas Cumberland County, Pennsylvania NO.: Vivian Beitzel, Gregory K Beitzel, Civil Action - Law Kelly L Beitzel, Defendants COMPLAINT 1. Plaintiff is Margaret E Bauerle an adult individual residing at 330 Stumpstown Road, Mechanicsburg, Cumberland County, PA 17055 2. Defendant is Vivian Beit~el, an adult individual whose last known address was 424 West Main Street, Mechanicsburg, Cumberland County PA. 3. Defendant is Gregory K BeEzel, an adult individual whose last known address is believed to be 7032 Red Top Road, Harrisburg, PA 17111. 4. Defendant is Kelly L Beitzel, an adult individual whose last known address is believed to be 7032 Red Top Road, Harrisburg, PA 17111. 5. On or about March 3, 200't, Plaintiff and Defendants entered into an Agreement for the Sale of Real Estate ("Agreement"); attached hereto as Exhibit A is a copy of said agreement. 6. The real estate in question is known as 424 West Main Street, Mechanics, J~urg, Cumberland County, Pennsylvania, 17055 and more particularry described herein in attached Exhibit B. 7. Plaintiff complied With all terms of the agreement. 8. Plaintiff was unable to obtain a financing commitment consistent with the terms as set forth in section 6 of said agreement. 9. Defendants have failed and otherwise refused to comply with their duty to return M Lmsm LtC to Pt~inti~ t~ deposit mo~ies of five thousand ($5,000.00) ~oll~rs and ~o cents ~ r~qu~ed by the agreement. ~0. ~l~i~tiff ~as demanded payment and Defendant has failed and othe~ise refused to co~ly with plaintifffs request. WHEREFORE, ~lai~ti~ respec~olly reques~ that your Honorable Cou~ order that: (a) Defendant be enjoined, preliminarily until final hearing and permanently thereafter, from mortgaging or encumbering tt"~e properb/in ~ny way, and from sel',:ncj or conveying the same or any part thereof to any person other than Plaintiff; Defendant be required to specifically perform in accordance with the terms of the agreement by either paying Plaintiff in full, with interest at the legal rate thereon and attorney fees and costs and expenses of this action; Respe~:tfully submitted, }ames/A, Hiller, Esquire 2 l_.52-1vlarket Street /amp Hill PA 17011 (717) 737 6400 VERIFICATION ' I verify that the statements made in the attached Complaint are true and correct. I understand that false statementS herei~ are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Margaret E Bauerle EXHIBIT "C" LIS PENDENS Margaret E Bauerle : In the Court of Common Pleas Plaint?ff : Cumberland Counb/, Pennsylvania v. : NO.: O ¥-- ,_? "7 '~[ : Vivian Bei~:el, Gregory K Beitzei,. '. Civil Action - Law Kelly L Beitzel, : Defendants : NOTICE OF LIS PENDENS To Defendant, Vivian Beitzel, Gregory K BeitzeI,Kelly L E;eitzel, and All Others Whom May Concern: NOTTCE :IS HEREBY GTVEN that an action has been commenced and is now pending in the Court of Common Pleas of Cumberland C:ounb/on the complaint of the above-named Plaintiff against the above-named Defendant at Civil Action No. __ for, /nter a/ia, breach of contract. i/V~ILLER LIPSITT tLC REAL PROPER~ in Cumberland Count, Pennsylvan~a,"a'ffected by ~hJs notice is Pa~Jcu~arly described as follows: Dated: Respectfully submitted, MILLER LIPSi-I-F, LLC By__ .]ames A..JYlifl'e~ ~.Z/-5-7-Market SLreet Camp Hill, PA 1701! 717.737.6400 EXHIBIT "D" ANSWER WITH NEW MATTER ANI) COUNTERCLAIM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET E. BAUERLE, Plaintiff VS. VIVIAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants NO. 04-3791 CIVIL ACTION - LAW NOTICE TO PLEAD TO: Margaret E. Bauerte c/o James A. Miller, Esquire 2157 Market Street Camp Hill, PA 17011 You are hereby notified to file a written response to the endorsed New Matter and Counterclaim within 20 days from service hereof or a judgment may be entered against you. Respectfully submitted, DIANE G. RADCLIFF, ESQUIRE 3448 Trindle Road Camp Hill, PA 17011 Phone: (717) 737-0100 Fax: (717) 975-0697 Supreme Court ID # 32112 Attorney fol' Defendants IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY MARGARET E. BAUERLE, PLaintiff VS, VIVIAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants NO. 04-3791 CIVIL ACTION - LAW ANSWER TO PLAINTIFF'S COMPLAINT WITH N EW_W_MA_TTER_AND COUNTERCLAIM Defendants, Vivian Beitze[, Gregory K. Beitzet and KeLLy L. B,eitzet, by their attorney, Diane G. Radctiff, Esquire, rites this Answer to PLaintiff's CompLaint with New Matter and CountercLaim as fo[tows: ANSWER Admitted in Part and Denied in Part. It is admitted that PLaintiff is Margaret J. BauerLe. Defendants are without knowledge or information as to the truth or falsity of the averment set forth in Paragraph 1 of PLaintiff's CompLaint that PLaintiff's address is 330 Stumpstown Road, Mechanicsburg, PA 17055 and said averment is, therefore, denied. Defendants demand proof thereof at the trial of this; case, if relevant. Denied with Further Answer. It is denied that Defendant Vivian BeitzeL's address is 424 Main Street Mechanicsburg, PA 17055. By way of further Answer it is averred that Defendant Vivian Beitzet's address is 1 Westfietd Drive, CumberLand County, Mechanicsburg, PA 17055. Admitted. It is admitted that Defendant Gregory K. Beitzet is an adult individual residing at 7032 Red Top Road, Harrisburg, Dauphin County, PA 17111. Admitted. It is admitted that Defendant KeLLy L. Beitzet is an adult individual residing at 7032 Red Top Road, Harrisburg, Dauphin County, PA 17111. Admitted. It is admitted that on or about March, 3, 2004, PLaintiff and Defendants entered into an Agreement for the Sate of Real Estate ("Agreement"). -1- 10. Admitted. It is admitted that the real estate at issue is known and numbered as 424 West Main Street, Mechanicsburg, Cumberland Cou~ty, PA 17055. Denied with Further Answer. It is denied that Plaintiff complied with terms of the Agreement, and strict proof thereof is demanded at the trial of this case, if relevant. By way of further Answer it is believed and therefore averred that Plaintiff did not comply with the terms of the Agreement in that: Plaintiff fa,ted to apply for a mortgage within the required ten (10) day time period; Plaintiff never supplied Defendants with proof of such mortgage application nor rejection of mortgage financing; C. Plaintiff failed and refused to attend settlement when scheduled; D. Failed to tender and pay the purchase price; E. Plaintiff otherwise failed to comply with the terms of the Agreement. Denied with Further Answer. It is denied Piaiintiff complied with terms of the Agreement to obtain financing consistent with the terms as set forth in Section 6 of said Agreement and strict proof thereof is demanded at the trial of this case, if relevant. By way of further Answer Defendants incorporate by n.~ference the averments set forth in paragraph 7 herein the same as if fully set forth he,rein at length. Denied with Further Answer. It is denied that Defendants have failed and otherwise refused to comply with their duty to return to Plaintiff the deposit monies of five thousand ($5,000.00) dollars as required by the agreement, and strict proof thereof is demanded at the trial of this case, if relevant By way of further Answer it is averred that Plaintiff is not entitled to a refund of the deposit monies for the reasons set forth in paragraph 7 herein, incorporated by reference hereto. Admitted with Further Answer. It is admitted that Plaintiff has demanded payment, and Defendants have refused to comply with Plaintiff's Request. By way of further Answer it is averred that Plaintiff is not entitled to a refund of the deposit monies for the reasons set forth in paragraph 7, incorporated by reference hereto. WHEREFORE, Defendants respectfully request this Honorable Court to: A. Enter judgement in favor of Defendants and against Plaintiff, B. Dismissing Plaintiff's Complaint; -2- Vacate the Lis Pendens Authorize the distribution of the monies held in escrow to the Defendants 11. 12. 13. 14. 15. 16. 17. 18. 19. NEW MA'I-I'ER Defendants incorporate by reference the Answers and averments set forth in paragraphs 1 through 10 the same as if fuLLy set forth herein at Length. A mortgage contingency was included in paragraph 6 of the Agreement, which contingency required Plaintiff to make a written mortgage application within ten (10) days of the date of the agreement. Defendants believe and therefore aver that PLaintiff never made a mortgage application for the financing as set forth in the Agreement. Rather the mortgage application was made by her son, J. Marc BauerLe, in his individual capacity, who is and was not a party to the Agreement. Therefore, his application has no relevance to these proceedings or to the mortgage contingency set forth in the Agreement. The terminal date fo settlement as set forth in paragraph 3 of the Agreement was April 30, 2004. This date was extended by mutual agreement to May 19, 2004. SettLement was scheduled for May 19, 2004 and written notification thereof was sent by PLaintiff's settlement agent. A true and correct copy of the settlement notice is attached hereto marked Defendants' Exhibit "A" arid made a part hereof. PLaintiff did not attend settlement and did not tender remaining purchase price due Defendants under the terms of the Agreement. Several hours after the time scheduled for settlement, PLaintiff's agent faxed a statement from Wachovia Bank indicating that the mortgage financing application for J. Marc Bauede had been rejected. Again, since J. Marc Bauede is and was not a party to the contract, the rejection of his mortgage financin!~ application was and is not relevant to the Agreement. To the date hereof, PLaintiff never provided Defendants with proof of her mortgage application nor of any written rejection thereof. To the date hereof PLaintiff has not tendered the remaining purchase price and has not scheduled nor demanded the scheduling of settlement. -3- 20. 21. 22. 23. 24. 25. 26. In the default clause set forth in Paragraph 27 of the Agreement it is provided that Seller has the right to retain as liquidated damages all sums paid by the buyer including the deposit monies in the event buyer fails to pay any additional sums due under the Agreement, faits to cooperate in the processing of the mortgage application or violates or fails to fulfil[ and perform any other terms and condition of the Agreement. Plaintiff was and is in default of the Agreement in that Plaintiff: A. Failed to make a written mortgage application within ten (10) days of the date of the agreement; B. Failed to cooperate in the processing of the mortgage application; C. Failed to pay the remaining $190,000.00 due at settlement on account of the purchase price. D. Failed to attend settlement on the scheduled clare. As a result of Plaintiff's default and breach of the terms of the agreement, Defendants were entitled to terminate the Agreement and receivE: payment of the $5,000.00 deposit monies as liquidated damages. As a further result of Plaintiff's default and breach of the Agreement, Plaintiff is not entitled to specifically enforce the terms of the Agreement. As a further result of Plaintiff's default and breach of the Agreement, Plaintiff is not entitled to a lis pendens against the subject property. Plaintiff's Complaint is based on facts alleging a claim for a refund of the deposit monies, an action for monetary damages properly a civil action at law. Plaintiff's request for relief, however, is for an injunction to stop to further sale or encumbrance of the subject property, an action properly brought in equity. Plaintiff is not entitled to an injunction in the form requested because: A. Plaintiff has not alleged sufficient facts for such an injunction. B. If Plaintiff is entitled to a refund of the deposit monies, Plaintiff has an adequate remedy at law, thereby foreclosing a claim for an injunction. C. Plaintiff is in default of the terms of the Agreement for the reasons set forth in paragraph 24 above incorporated by reference hereto. -4- D. Plaintiff has not tendered the purchase price nor scheduled settlement within the required settlement date time period. WHEREFORE, Defendants respectfulty request this Honorable Court to: · Enter judgement in favor of Defendants and against Plaintiff, · Dismissing Plaintiff's Complaint; · Vacate the Lis Pendens · Authorize the distribution of the monies held in escrow to the Defendants COUNTERCLAIM 27. Defendants incorporate by reference the Answers and averments set forth in paragraphs 1 through 26 the same as if fully set forth herein at length. 28. Defendants are entitled to payment of the deposit rnonies as liquidated damages for the reasons set forth in paragraphs 12 through 26 incorporated by reference hereto. WHEREFORE, Defendants requests this Honorable Court to enter an order: · Awarding Defendants the $5,000.00 deposit monies and directing the escrow agent to pay over said funds to Defendants; · Awarding Defendants reasonable counsel fees and costs incurred in this action. Respectfully submitted, DIANE G. RADCLIFF, ESQUIRE 3448 Tdndle Road Camp Hill, PA 17011 Phone: (717) 737-0100 Fax: (717) 975-0697 Supreme Court ID # 32112 Attorney for Defendants -5- VERIFICATION I verify that t:he st:atements made in the fore~oin~ document are true and correct. I understand that: false stat:ement:s herein are made subject: t:o the penalties of 18 Pa.C.S. Sect:ion 4904, re[atin§ to unsworn fa[sificaUon t:o authorit:ies. VIVIAN BEITZEL Date: ~'- ~-~--~ ~ -6- VERIFICATION I verify that the statements made in the fore~oin~ document are true and correct. I understand that fa[se statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, re~atin8 to unsworn falsification to authorities. GREGORY I(.~ZZEL Date: I verify that the statements made in the fore§oin§ document are true and correct. I understand that fa[se statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relatin8 to unsworn falsification to authorities. KELLY L.~EITZEL ' - Date: TO: CI~OSING DEPT. 701-3532 FROM: NANCY J, TUIINER DATE: MAY Il, 2004 RE: BEITZEL TO BAUERI~E 424 WEST MAIN STREET, ~fECHANICSDURG, PA SE*ITI.,EMENT DATE: MAY 19, 2004 9:00 A.M. PLEASE PROVIDE COMMISSION, DEPOSIT MONIES, DEED PREPARTION FEE, 2004 BORO/COUNTY TAX RECEIPT A~D ANY OTtiER FEES FOR SE'FTLEMENT SHEET. THA~H~.YOU, THE FOL.~ .0 WING TRANS]~IrI-i.AL CONSI&'TS OF PAGES (INCLUDING COVER SHEErlY). I1~ YOU E~ID N0~ RECEIVE THE CORRECt' DEFENDANTS' EXHIBIT "A" EXHIBIT "E" HOLBERT AGREE/~,ENT STANDARD AGREEMENT FOR THE SALE OF REA1, ESTATE A/S-2K BItOKER 15 File X(;ENT FOR S~&,LER. I)esignat~d Agent(s) fl~r Seller, if ~fficabl~ 7~ ~ x OR , called "Seller," and Cmmt, ,,I - 1~] ~L~?.L~ ~'1 ~ in t~,e C ..........wdlth of I'em,svlvania. Zip O,de / ']0.~9" Buyer Initials: ~ ~"~d /~ A/S-2K :Page I of 8 Seller Inithds: ~ ,~. ~l~. ~* 215 SELf £R'S COPY THE ABOVE AMOUNTS ARE ESTIMATES AND DO NOT INCLUDE FEES FOR CERTIFICATION AND/OR INSPECTIONS REQUIRED UNDER THE AGREEMENT WITH EACH PROPERTY AND/ORr:~RTGAGE LENDER FUNDS REQUIRE[) TO COMPLETE CLOSING MUST BE BY CAS, I OF; CER'I IFIED CHECK. DEPOSIT MONEY: NOTICE TO THE BUYER (S) 1 TI- Sug ,~ e, ;o ~.I'L~ "'~lL//~2r' - ,, ...... b - ~ .... :__~__ .... rrna w~ accept your sales deposi for hetransfer tothe Listing Broker,_ ~z%~¢~, who is Agent for Seller. ' 2. The Agent for the Seffer is a Pennsylvania censed realestate broker who is required to holdyour 3. If your deposit is in the form of a check, it is to be made payable to the Agent for the Seller 4. The undersi~ d ac~dges r~ceipt of this notice prior to signing the Agreement of Sale. t/We hereby ac~.efe~opy of this Statemen of Estimated Buyers Settlemen Co,ts, EstimAte ~bl~eps, and Deposit Money No ce and approve the informa io~ HOME PROTECTION P~N WAIVER I/We hereby acknowledge that the Selling Broker has informed me/us of the cost and benefits of havin9 ~he -:ha-ic:Uelectdcal/pfumbin¢ com:onepts of the above premises warranted for one year ~om e.[e of purchase. J hereby decline such coverage and agree to hold harmless the Listing and Selling Real Estate Brokers and their agents in the event of subsequent mechanical defects, malfunctions or failures which would othe~ise have been covered. ......... Buyer Initials Buyer initials The Selling Broker informs the Buyer(s) of the adv~sablitiy of, and their right to order inspections on roof and any others even though inspection may not be required by the lender; and that the Selling Broker or any of his/her agents cannot be held liable for any defects that would have been delected or warranted by such inspection, er ~iti~ Buyer Initials IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NLARGARET E. BAUERLE, Plaintiff/Respondent VS. VIVlAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants/Petitioners : NO. 04-3791 : : CIVIL ACI'ION - LAW RULE TO SHOW CAUSE Re: Petition for Emer~Jency Relief AND NOW, thi~day of~j~~ upon consideration of the within Petition, it is hereby ordered that a Rute is issued upon the Respondent, Margaret E. Bauer[e, to show cause why the Petitioners, Vivian Beitzel, Gregory K. Beitze[ and Kelly L. Beitze[, are not entitled to the relief requested in the within Petition· County Courthouse, Carlisle, PA. Rule Returnable at a hearing to be held on th I day of , at ~i~)O o.clock/~. ~ ........ __m. in Courtroom~ the Cumber[and BY THE COORT: ~_~ JUDGE Distribution to: ~ ~r v~Diane G. Raddiff, Esquire, 3448 Tdndle Road, Camp Hi[[, PA 17011, Attorney for P /James ~. Miller, Esquire, 2157 Market Street, Camp Hi[[, PA 17011, Attorney for Respondent ORIGINAL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTYr MARGARET E. BAUERLE, Ptaintiff VS. ¥1VlAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants NO. 04-3791 : CIVIL ACTION - LAW NOTICE TO PLEAD TO: Margaret E. BauerLe c/o James A. MiJJer, Esquire 2157 Market Street Camp Hilt, PA 17011 You are hereby notified to fiJe a written response to the endorsed New Matter and Counterclaim within 20 days from service hereof or a judgment may be entered against you. RespectfulLty submitted, Phone: (7'17) 737-0100 Fax: (717)975-0697 Supreme Court ID # 32112 Attorney for Defendants IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY MARGARET E. BAUERLE, PLaintiff VS. VIVlAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants NO. 04-3791 CIVIl_ ACTION - LAW ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND COUNTERCLAIM Defendants, Vivian Beitzel, Gregory K. Beitzel and Kelly L. Beitzet, by their attorney, Diane G. Radctiff, Esquire, files this Answer to Plaintiff's Complaint with New Matter and Counterclaim as follows: ANSWER Admitted in Part and Denied in Part. It is admitted that Plaintiff is Margaret J. BauerLe. Defendants are without knowledge or information as to the truth or falsity of the averment set forth in Paragraph 1 of Plaintiff's Complaint that Plaintiff's address is 330 Stumpstown Road, Mechanicsburg, PA 17055 and ..said averment is, therefore, denied. Defendants demand proof thereof at the trial of this case, if relevant. Denied with Further Answer. It is denied that Defendant Vivian Beitzet's address is 424 Main Street Mechanicsburg, PA 17055. By way of further Answer it is averred that Defendant Vivian Beitzel's address is 1 Wes.tfietd Drive, Cumberland County, Mechanicsburg, PA 17055. Admitted. It is admitted that Defendant Gregory K. Beitzel is an adult individual residing at 7032 Red Top Road, Harrisburg, Dauphin Count,./, PA 17111. Admitted. It is admitted that Defendant Kelly L. Beitzel is an adult individual residing at 7032 Red Top Road, Harrisburg, Dauphin County, PA 17111. Admitted. It is admitted that on or about March 3, 2004, Plaintiff and Defendants entered into an Agreement for the Sale of Real Estate ("Agreement"). -1- 10. Admitted. It is admitted that the real estate at issue is known and numbered as 424 West Main Street, Mechanicsburg, CumberLand County, PA 17055. Denied with Further Answer. It is denied that PLaintiff complied with terms of the Agreement, and strict proof thereof is demanded at the trial of this case, if relevant. By way of further Answer it is believed and therefore averred that PLaintiff did not comply with the terms of the Agreement in that: Plaintiff failed to apply for a mortgage within the required ten (10) day time period; PLaintiff never supplied Defendants with proof of such mortgage application nor rejection of mortgage financing; C. Plaintiff failed and refused to attend settiernent when scheduled; D. FaiLed to tender and pay the purchase price; E. Plaintiff otherwise failed to comply with the terms of the Agreement. Denied with Further Answer. It is denied Plaintiff complied with terms of the Agreement to obtain financing consistent with the terms as set forth in Section 6 of said Agreement and strict proof thereof is demanded at the trial of this case, if relevant. By way of further Answer Defendants incorporate by reference the averments set forth in paragraph 7 herein the same as if fuLLy set forth herein at length. Denied with Further Answer. It is denied that Defendants have failed and otherwise refused to comply with their duty to return to PLaintiff the deposit monies of five thousand ($5,000.00) dollars as required by the agreement, and strict proof thereof is demanded at the trial of this case, if relevant By way of further Answer it is averred that PLaintiff is not entitled to a refund of the deposit monies for the reasons set forth in paragraph 7 herein, incorporated by reference hereto. Admitted with Further Answer. It is admitted that Plaintiff has demanded payment, and Defendants have refused to comply with Plaintiff's Request. By way of further Answer it is averred that PLaintiff is not entitled to a refund of the deposit monies for the reasons set forth in paragraph 7, incorporated by reference hereto. WHEREFORE, Defendants respectfully request this Honorable Court to: A. Enter judgement in favor of Defendants and against PLaintiff, B. Dismissing Plaintiff's Complaint; -2- Vacate the Lis Pendens Authorize the distribution of the monies held in escrow to the Defendants 11. 12. 13. 14. 15. 16. 17. 18. 19. NEW MATTER Defendants incorporate by reference the Answers and averments set forth in paragraphs 1 through 10 the same as if fully set forth herein at: Length. A mortgage contingency was included in paragraph 6 of the Agreement, which contingency required PLaintiff to make a written mortgage application within ten (10) days of the date of the agreement. Defendants believe and therefore aver that PLaintiff never made a mortgage application for the financing as set forth in the Agreement. Rather the mortgage application was made by her son, J. Marc Bauer[e, in his individual capacity, who is and was not a party to the Agreement. Therefore, his application has rio relevance to these proceedings or to the mortgage contingency set forth in the Agreement. The terminal date fo settlement as set forth in paragraph 3 of the Agreement was April 30, 2004. This date was extended by mutual agreement to May 19, :Z004. SettLement was scheduled for May 19, 2004 and written notification thereof was sent by PLaintiff's settlement agent. A true and correct copy of the settlement notice is attached hereto marked Defendants' Exhibit "A" and made a part hereof. PLaintiff did not attend settlement and did not tender remaining purchase price due Defendants under the terms of the Agreement. Several hours after the time scheduled for settlement, PLaintiff's agent faxed a statement from Wachovia Bank indicating that the mortgage financing application for J. Marc Bauerte had been rejected. Again, since J. Marc Bauerte is and was not a party to the contract, the rejection of his mortgage financing application was and is not relevant to the Agreement. To the date hereof, PLaintiff never provided Defendants with proof of her mortgage application nor of any written rejection thereof. To the date hereof PLaintiff has not tendered the remaining purchase price and has not scheduled nor demanded the scheduling of settlement. -3- 20. 21. 22. 23. 24. 25. 26. in the default clause set forth in Paragraph :27 of the Agreement it is provided that Seller has the right to retain as Liquidated damages all sums paid by the buyer including the deposit monies in the event buyer fails to pay any additional sums due under the Agreement, fails to cooperate in the processing of the mortgage application or violates or faits to fulfill and perform any other terms and condition of the Agreement. P~aintiff was and is in default of the Agreement in that Plaintiff: Failed to make a written mortgage application within ten (10) days of the date of the agreement; B. Fai~ed to cooperate in the processing of the mortgage application; Failed to pay the remaining $190,000.00 due at settlement on account of the purchase price. D. Failed to attend settlement on the scheduled date. As a result of PLaintiff's default and breach of the terms of the agreement, Defendants were entitled to terminate the Agreement and receive payment of the $5,000.00 deposit monies as liquidated damages. As a further result of Plaintiff's default and breach of the Agreement, Plaintiff is not entitled to specifically enforce the terms of the Agreement. As a further result of Plaintiff's default and breach of the Agreement, Plaintiff is not entitled to a lis pendens against the subiect property. Plaintiff's CompLaint is based on facts alleging a claim for a refund of the deposit monies, an action for monetary damages properly advi[ action at law. Plaintiff's request for relief, however, is for an injunction to stop to further sate or encumbrance of the subject property, an action properly brought in equity. Plaintiff is not entitled to an injunction in the form requested because: A. Plaintiff has not alleged sufficient facts for such an injunction. If Plaintiff is entitled to a refund of the deposit monies, Plaintiff has an adequate remedy at taw, thereby foreclosing a claim for an injunction. PLaintiff is in default of the terms of the Agreement for the reasons set forth in paragraph 24 above incorporated by reference hereto. -4- D. Plaintiff has not tendered the purchase price ,nor scheduled settlement within the required settlement date time period. WHEREFORE, Defendants respectfully request this Honorable Court to: · Enter judBement in favor of Defendants and asainst Plaintiff, · Dismissin~ PLaintiff's Complaint; · Vacate the Lis Pendens · Authorize the distribution of the monies held in escrow to the Defendants COUNTERCLAIM 27. Defendants incorporate by reference the Answers and averments set forth in parasraphs 1 throush 26 the same as if fully set forth herein at lensth. 28. Defendants are entitled to payment of the deposit monies as liquidated damases for the reasons set forth in parasraphs 12 throush 26 inco~rporated by reference hereto. WHEREFORE, Defendants requests this Honorable Court to enter an order: Awardin8 Defendants the $5,000.00 deposit monies and directin8 the escrow asent to pay over said funds to Defendants; · Awardin8 Defendants reasonable counsel fees and costs incurred in this action. Respectfully submitted, ~NE~. ~DCLIFF, ESQUIRE t...~448 Trind~ Road Cam~'~--C-R~ PA 17011 Phone: (7'17) 737-0100 Fax: (717) 975-0697 Supreme Court ID # 32112 Attorney for Defendants -5- C~IP HI~ PA 170H PHO~ · ~7.075.7Sfl9 FAX TRANSMI~YAL TO: CLOSING DEFT. 791-3532 FROM: NANCY J. TURNER DATE: MAY 11, 2004 RE: BEITZEL TO BAUERLE 424 WEST MAIN S~REET, ~fECHANIC SBURG. PA SE~P]ULEMENT DATE: MAY 19, 2004 9:00 A.M. PLF_,ASE PROVIDE COMMISSION, DEPOSIT MONIES, DEED pREPARTION IrEE, 2004 BOI~O/COUNTY TAX RECEIPT AND ANY OTHER FEES FOR. SE~I~LEMENT SHEET. THANKYOU. · HE FOI~0~rVING ~?.ANSMtTyAI~ CONSISTS OF / PAGES (INCLUDING COVER SHE~- !~ YOU DID NOT RECEI~ THE CORRE~ N~IBER OF PAGES OR RECEI~D TIIIS IN ERRO~ pLF~E iMMED~LYNOTI~THE SENDER ByTELEPIIONE ~ RETURN TI~E FASCIMILE TO THE SENDEB~. TI~KYOU~ TOTAL P, 0! DEFENDANTS' EXHIBIT "A" VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein arE: made subject to the penalties of 18 Pa.C.S. Section 4904, reJatin8 to unsworn falsification to authorities. VIVIAN BEITZEL Date: VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penatties of 18 Pa.C.S. Section 4904, retatin8 to unsworn fatsification to authorities. GREGORY ~.~EI'I'ZEL I verify that the statements made in the foresoin8 document are true and correct. I understand that fatse statements herein are made subject to the penatties of 18 Pa.C.S. Section 4904, retatin8 to unsworn fatsification to authorities. Date: Margaret E Bauerle Plaintiff : V, : Vivian Beitzel, Gregory K Beitzel, Kelly L Beitzel, : Defendants : in the Court of Common Pleas Cumberland County, Pennsylvania No,: Civil Action - Law NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that [f you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff, You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veiente (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objeccionee a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado pot el demandante puede set dictado en contra suya por la Corte sin mas aviso adicional. Usted pued perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. LIP$1TT LLC 2l-q7 Markpt Street Camp Hill, PA 17011 717W37-6400 Fax: 717W37-5555 Margaret E Bauerle : Plaintiff : : V, : Vivian Bei~2el, Gregory K Beitzel, ; Kelly L Beitzel, : Defendants : In the Court of Common Pleas Cumberland County, Pennsylvania No.: Civil Action - Law 1. Plaintiff is Margaret E Bauerle an adult individual residing at 330 Stumpstown Road, Mechanicsburg, Cumberland County, PA 17055 2. Defendant is Vivian Beitzel, an adult individual whose last known address was 424 West Main Street, Mechanicsburg, Cumberland County PA. 3. Defendant is Gregory K Beitzel, an adult individual whose last known address is believed to be 7032 Red Top Road, Harrisburg, PA 17111. 4. Defendant is Kelly L Beitzel, an adult individual whose last known address is believed to be 7032 Red Top Road, Harrisburg, PA 17111. 5. On or about March 3, 2004, Plaintiff and Defendants entered into an Agreement for the Sale of Real Estate ("Agreement"); attached hereto as Exhibit A is a copy of said agreement. 6. The real estate in question is known as 424 West Main Street, Mechanicsburg, Cumberland County, Pennsylvania, 17055 and more particularly described herein in attached Exhibit B. 7. Plaintiff complied with ali terms of the agreement. 8. Plaintiff was unable to obtain a financing commitment consistent with the terms as set forth in section 6 of said agreement. 9. Defendants have failed and otherwise refused to comply with their duty to return COMPLAINT MILLER LIPSITT LLC 2I,q7 Market Street Camp llill, PA 17011 717-737-6400 Fax: 717-737-5355 to Plaintiff the deposit monies of five thousand ($5,000.00) Dollars and no cents as required by the agreement. 10. Plaintiff has demanded payment and Defendant has failed and otherwise refused to comply with Plaintiff's request. WHEREFORE, Plaintiff respectfully requests that your Honorable Court order that: (al Defendant be enjoined, preliminarily until final hearing and permanently thereafter, from mortgaging or encumbering the property in any way, and from selling or conveying the same or any part thereof to any person other than Plaintiff; (b) Defendant be required to specifically perform in accordance with the terms of the agreement by either paying Plaintiff in full, with interest at the legal rate thereon and attorney fees and costs and expenses of this action; Resp~tted, James,,A. Miller, Esquire 2 ~dVlarket Street /amp Hill PA 17011 (717) 737 6400 VER~FICAI'~ON I verify that the statements made in the attached Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. IVlargaret E Bauede LIPSITT LLC 21B7 Markc~ Canxp tliH, PA 17011 717-737-~00 Fax: 71 Margaret E Bauerle : Plaintiff : : V. ; ; Vivian geitzel, Grego~ K geit2el, : Kelly L Beitzel, : Defendants In the Court of Common Pleas Cumberland County, Pennsylvania No.: Civil Action - Law PRAECZPE FOR LES PENDENS To the Prothonotary: Please index the above captioned action as a lis pendens against the following real property: 424 West Main Street, Mechanicsburg, Cumberland County, PA I hereby certify that this action affects title to or other interest in the above described real property. Ia squire 2157 t4~ket Street Ca~-Iill PA 17011 ~I7) 737 6400 IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY MARGARET E. BAUERLE, PLaintiff/Respondent VS. VIVIAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants/Petitioners NO. 04-3791 CIVIL ACTION - LAW PRAECIPE TO ENTER APPEARANCE PLease enter the appearance of Diane G. Raddiff, Esquire as Attorney for the Defendants in the above captioned case. ~.--RAD~IFF, ESQUIRE Camp HiJ[, PA 1701 1 Phone: (717) 737-0100 Fax: (7117) 975-0697 Supreme Court ID # 32112 Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MARGARET E. BAUERLE, Plaintiff/Respondent VS. VIVIAN BEITZEL, GREGORY K. BEITZEL and KELLY L. BEITZEL, Defendants/Petitioners NO. 04-3791 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, DIANE G. RADCLIFF, ESQUIRE, hereby certify that on September 28, 2004, I served a true and correct copy of the Defendants;' Answer with new Matter and Counterclaim and Defendants' Petition for Emergency Relief and Rule to Show Cause dated September 28, 2004 schedulin8 a hearing on the Petition for September 29, 2004 at 3:00 p.m. upon Plaintiff's Attorney, James A. Miller, Esquire, by handing him certifed copies of the same at his office located at the following address: James A. MilLer, Esquire 2157 Market Street Camp Hill, PA 17011 Camp Hill, PA 1701 1 Phone: (717) 737-0100 Fax: (717) 975-0697 Supreme Court ID # 32112 Attorney for Defendants MARGARET E. BAUERLE, : Plaintiff/Respondent : V. : : CIVIL ACTION - LAW VIVIAN BEITZEL, GREGORY :' K. BEITZEL and KELLY L. BEITZEL, : Defendants/Petitioners: NO. 04-3791 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of September, 2004, having been called for a hearing, the Rule entered on 29, 2004, IS MADE ABSOLUTE. the initiation of this suit, ~iane G. Radcliff, Esquire For Defendants/Petitioners ~aryl Christopher, Esquire For Plaintiff/Respondent prs IN THE COURT OF COMMON PLEAs OF CUMBERLAND COUNTY, PENNSYLVANIA this matter September The lis pendens filed pursuant to