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HomeMy WebLinkAbout04-3977JEFFREY L. WALTERS and : BETH A. WALTERS, husband and : wife, : 397 HIGH STREET : WEST FAIRVIEW, PA 17025, : Plaintiffs : Vo JOHN SOPENSKY, : a/Ma PAUL J.SOPENSKY, : a/k/a PAUL JOHN SOPENSKY, : a/k/a P. JOHN SOPENSKY : 30 EAST MAPLEWOOD AVENUE : MECHANICSBURG, PA 17055, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY No. JURY TRIAL DEMANDED 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 afmr this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and 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 rellefrequested by the Plainti~ You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 JEFFREY L. WALTERS and : BETH A. WALTERS, husband and : wife, : 397 HIGH STREET : WEST FAIRVIEW, PA 17025, : Plaintiffs : JOHN SOPENSKY, : a/k/a PAUL J. SOPENSKY, : a/k/a PAUL JOHN SOPENSKY, : a/k/a P. JOHN SOPENSKY : 30 EAST MAPLEWOOD AVENUE : MECHANICSBURG, PA 17055, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY No. JURY TRIAL DEMANDED NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la denanda y la notification. Usted debe prensentar una apariencia escrita or en persona o pot abogado y archivar en la corte en forrna escrita sus defenses o sus obj¢ciones a las demandas en contra de su persona. Sea avisado que si usted no de difiende, la cone tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y pot cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o ostros derechos imprtantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIANTEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERV1CIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 2 JEFFREY L. WALTERS and : BETHA. WALTERS, husband and : wife, : 397 HIGH STREET : WEST FAIRVIEW, PA 17025, : Plaintiffs : : JOHN SOPENSKY, : a/k/a PAUL J. SOPENSKY, : a/k/a PAUL JOHN SOPENSKY, : a/k/a P. JOHN SOPENSKY : 30 EAST MAPLEWOOD AVENUE : MECHANICSBURG, PA 17055, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION No. Oq- 3qni JURY TRIAL DEMANDED COMPLAINT IN ~ AND NOW, come Plaintiffs Jeffrey L. Walters and Beth A. Walters, husband and wife, by their attorneys, Joseph A. Klein, P.C., and file the within Complaint in Equity which avers a cause of action in equity seeking specific performance of a written agreement for the sale of real estate, of which the following is a statement: 1. The Plaintiffs, Jeffrey L. Walters and Beth A. Walters, are husband and wife, adult individuals who reside at 397 High Street, Borough of West Fairview, West Fairview, Cumberland County, Pennsylvania 17025. 2. The Defendant, John Sopensky, a/k/a Paul J. Sopensky, a/k/a P. John Sopensky, a/Ida Paul John Sopensky, is an adult individual who resides at 30 East Maplewood Avenue, Mechanicsburg, Borough of Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. At all times hereinafter mentioned, to the best knowledge, information and belief of Plaintiffs, Defendant was and still is the owner of certain improved properties situate in the Borough of West Fairview, Cumberland County, Pennsylvania, known and numbered as 106 and 108 Second Street, West Fairview, Cumberland County, Pennsylvania 17025; 106 Second Street comprising the southern halfofa two and a half (2 ½ ) story frame apartment building and 108 Second Street comprised of the northern half of two and a half(2 ½ ) story frame apartment building, and 110 Second Street comprised of a two and one half(2 ½ ) story frame dwelling situate in West Fairview, Cumberland County, Pennsylvania 17025. The premises known and numbered as 106- 108 Second Street is assigned Tax Parcel I.D. No. 45-17-1044-218; the premises known and number as 110 Second Street is assigned Tax Parcel I.D. No. 45-17-1044-219. All of the said parcels of improved real estate are more particularly bounded and described as set forth in Exhibit "A" attached hereto and incorporated herein as though fully set forth at length. 4. By Deed dated May 18, 1995, Defendant together with his late mother Emily L. Sopensky, as grantors, conveyed unto Defendant Paul John Sopensky, as grantee, all of Tax Parcel No. 45-17-1044-219, comprised of the two and one half(2 ½) story frame dwelling known as 110 Second Street, West Fairview, Cumberland County, Pennsylvania 17025. Said premises is more particularly bounded and described as set forth in Exhibit "B", attached hereto and incorporated herein as though fully set forth at length. 5. On April 21, 2004, Plaintiff Jeffrey L. Walters, husband of PlaintiffBeth A. Walters, and Defendant entered into a written contract in the form of an Agreement of Sale, the same signed by Jeffrey L. Walters as "Buyer" on April 21, 2004, and by John Sopensky as "Seller" on April 25, 2004, the terms of which provide for the sale of 106- 108 Second Street and 110 Second Street, each identified by their respective Tax Parcel Identification Nos. 45-17-1044°218 and 45-17-1044-219, respectively, by the Defendant to the Plaintiffs for the total sum of TWO HUNDRED EIGHTY THOUSAND AND NO/100 ($280,000.00) DOLLARS, on account and as consideration for which the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS was paid, by check of Plaintiffs, as the "cash at signing of this Agreement", and as the down payment, said check timely deposited by Plaintiff Jeffrey L. Walters into Defendant's mailbox in accordance with Defendant's instructions for the same. A true and correct copy of said Agreement of Sale dated April 21, 2004, is attached hereto, identified as Exhibit "C", and incorporated herein by reference as though fully set forth at length. 4 6. Subsequent to his having executed the Agreement of Sale dated April 21, 2004 (Exhibit "C"), Defendant sought to renege on the sale price contained in that April 21, 2004, Agreement of Sale (Exhibit "C") and stated to Plaintiff Jeffrey L. Walters during the latter part of May 2004, that Defendant would only agree to sell the property to Mr. Walters if the sale price was increased to the sum of $290,000.00. 7. In light of the matters addressed in the immediate preceding Paragraph 6, incorporated herein by reference, on June 2, 2004, counsel for Plaintiff Jeffrey L. Walters wrote to Defendant John Sopensky to advise inter alia, of the binding effect of the Agreement of Sale dated April 21, 2004 (Exhibit "C"), and that the price negotiated at "arms length" as set forth therein was controlling. A true and correct copy of said letter dated June 2, 2004, is attached hereto as Exhibit "D", incorporated herein by reference as though fully set forth at length. 8. In furtherance of the provisions, terms and conditions of the Agreement of Sale dated April 21, 2004 (Exhibit "C"), Plaintiffs, their mortgage lending bank Mid Penn Bank, and various representatives of The Sentinel Agency, LLC, attempted on numerous and repeat occasions to communicate with Defendant to obtain specific information Defendant had and which were required to complete the title search and to enable preparation of the necessary documents to be utilized at settlement, including but not limited to the HUD-1 Settlement Statement, etc., said settlement scheduled in accordance with the requirements of the Agreement of Sale (Exhibit "C"), on July 1, 2004, at 9:30 a.m., at the office of The Sentinel Agency, LLC, 2146 North Second Street, Harrisburg, Pennsylvania 17110, being an office and title agency with which Defendant had prior experience. A true and correct copy ora June 29, 2004, letter addressed to Defendant John Sopensky summarizing all of the averments contained in the immediate preceding paragraph hereof (Paragraph 8) is attached hereto as Exhibit "E", incorporated herein by reference. 9. As early as May 28, 2004, Plaintiff Jeffrey L. Walters had obtained a mortgage commitment from Mid Penn Bank sufficient in amount to provide all financing required for the purchase of 106 and 108 Second Street, West Fairview, Cumberland County, Pennsylvania 17025, and 110 Second Street, West Fairview, Cumberland 5 County, Pennsylvania 17025, together with additional funds to be utilized by Plaintiff Jeffrey L. Walters to perform any repairs or renovations as may be required and/or as Plaintiff Jeffrey L. Walters may determine to make to said premises. 10. At the appointed date and time on July 1, 2004, Plaintiffs Jeffrey L. Walters and Beth A. Walters, husband and wife; a representative of mortgage lender Mid Penn Bank; Mr. Rick Shoop of The Sentinel Agency, LLC, the title company and settlement agent; Plaintiffs' attorney and approximately thirty-five (35) minutes late Defendant John Sopensky, appeared at the offices of The Sentinel Agency, LLC, to conclude settlement on the instant transaction. 1 I. At the aforesaid settlement Plaintiffs Jeffrey L. Walters and Beth A. Walters were prior thereto, and were on the date and time of said settlement and remain so through the date of filing the instant Complaint, ready, willing and able to comply with all terms and conditions of the Agreement of Sale dated April 21, 2004 (Exhibit "C"), and were ready, willing, able and prepared to conclude settlement on said real estate on the aforesaid date and time. 12. During the course of almost three (3) hours of discussion at the "settlement table" at The Sentinel Agency, LLC, on July 1, 2004, and as the result of further discussion for purposes of settlement only, Plaintiffs Jeffrey L. Walters and Beth A. Walters further agreed at the insistence of Defendant to pay the entire amount of real estate transfer tax, rather than the standard, usual and customary one-half (1/2 ) of the real estate transfer taxes in their capacities as buyers, and said Plaintiffs further agreed to pay unto Defendant an additional sum of $2,000.00 for all of the refrigerators and stoves as they were extant in the apartments on the date the aforesaid Agreement of Sale (Exhibit "C") was executed and which comprised the property in its then "as is" condition. 13. Despite Plaintiffs having acceded to all of the requirements of the April 21, 2004, Agreement of Sale (Exhibit "C"), and as well those further conditions imposed by Defendant upon Plaintiffs at the settlement table on July 1, 2004, Defendant adamantly and without good reason refused to conclude the settlement, refused to sign the deeds which had been prepared, and as well refused to deliver possession of the improved properties the subject of Agreement of Sale (Exhibit "C"), by further failing to 6 agree to deliver all keys to the same, despite Defendant's having allegedly come to the settlement to conclude the matter. 14. In order to complete his duty to settle pursuant to the terms of the Agreement of Sale (Exhibit "C") and further, in compliance with Defendant's request for the same so that he would not be charged for the preparation of the Deeds to convey the instant properties from himself unto Plaintiffs, Plaintiffs' counsel agreed to and did prepare the required deeds for the same so that The Sentinel Agency, LLC, the title company involved, would not prepare them and thus no charges for the same would be incurred by Defendant, a further savings to him. 15. On July 20, 2004, despite Defendant having refused to conclude settlement on July 1, 2004, Plaintiffs' counsel forwarded a letter to Defendant providing further opportunity for Defendant to settle and conclude the transaction if he did so on or before the close of business on Friday, July 30, 2004, to which no reply has ever been forthcoming either in writing or by telephone call to any representative or agent of The Sentinel Agency, LLC, or to Plaintiffs' counsel. A true and correct copy of the letter dated July 20, 2004, sent by Plaintiffs' counsel to Defendant Sopensky is attached hereto as Exhibit "F", incorporated herein by reference as though fully set forth at length. 16. When Defendant did present himself late at the settlement on July 1, 2004, he did bring together with him the original of Exhibit "G", comprised of his hand written list of"Rents & Security Deposits" for the various apartment units contained within I06- 108 and 110 Second Street. A copy of said hand written listing by Defendant of"Rents & Security Deposits" is attached hereto as Exhibit "G", incorporated herein by reference as though fully set forth at length. 17. Defendant has wholly failed to keep or perform his part of the said Agreement of Sale (Exhibit "C"), without justification therefor. The Plaintiffs are and have been prepared to fulfill each and every duty required of them under the terms of the written Agreement of Sale for their purchase of said premises, but Defendant has and continues to refuse attend settlement and/or execute the deeds to the said premises. Plaintiffs have secured all necessary financing for the said premises and have in the past, do currently, and will in the future stand ready, willing and able to pay for the property, in full, and to "settle" the matter in accordance with the terms, provisions and conditions 7 of the Agreement of Sale dated April 21, 2004 (Exhibit "C"), and as the same were further discussed and agreed upon as memorialized in the writing of July 20, 2004 (Exhibit "F"), incorporated herein by reference hereto, yet Defendant continues to refuse to honor the terms and conditions of the Agreement of Sale as further modified at the settlement table July 1, 2004, memorialized as aforesaid. WHEREFORE, Plaintiffs pray: (a) That pending this bill the Defendant by specially and on final hearing perpetually, enjoined from mortgaging or encumbering said property in any way, and from selling or conveying the same or any part thereof to any person other than the Plaintiffs; and (b) That the Defendant be commanded to specifically perform the said contract in the form of the Agreement of Sale and by good and sufficient deed convey and assure said premises and every part thereof with marketable title, free of all encumbrances to the Plaintiffs in fee simple and legally signed, sealed and acknowledge and deliver the said deeds to the Plaintiffs in proper legal form, and accept the consideration thereof and the cash which Plaintiffs now here offer in fulfillment of the agreed-upon price pursuant to the terms of the written Agreement of Sale and as the same was modified and memorialized as aforesaid; and (c) Payment to the Plaintiffs for any and all expenses and/or costs incurred by them as required in order to obtain this action and result, over and above those normal costs anticipated by Plaintiffs for the purchase of the real estate, together with all fees and costs and expenses ordinarily involved therewith (including costs and fees connected with the filing of the instant action in equity seeking specific performance), together with loss of rents Plaintiffs would have collected had settlement occurred on July 1, 2004~ together with any differential in mortgage interest as may be incurred by Plaintiffs as a result of the failure of Defendant to settle on July 1, 2004, and the increased mortgage lending interest rates from and after said date over the life of the mortgage; and any all additional fees, costs, or expenses which Plaintiffs may incur regarding title insurance, mortgage fees and/or extension, etc.; and (d) Such other general relief as the Court may deem appropriate. By: Respectfully Submitted: I.D. No. 09825 500 North Third Street, 7th Floor Harrisburg, PA 17101 (717) 233-0132 Attorneys for Plaintiffs Jeffrey L. Walters and Beth A. Walters, husband and wife 9 Exhibit A ~' DE~DIEHAULL,DBD THX8 DEED HADB TH~ ~' day of (3~c~_ in the year of our Lord one thoueand nine hundred~lnety-one (1991). BETW~.N · K. RICHARD S~AULL and YVONNE B. SHAULL, his. wife and Grantors, /A/K/A PAUL J~ SOP~NSKY A/K/A P. jOHN SOP~ISKY PAUL J, SOPENSKY and EMILY L. SOPE~KY, as Joint tenants with the right of survivorship, ~-~. ~&.~[ Grantees, WITNESSETE, that in consideration of ONE HUNDRED EIGHTY THOUSAND and NO/100T ...................... ($180,000.00) ...... £ ............ Dollars;.. in hand paid, the receipt whereof is hereby acknowledged, the said Grantors do hereby grant and convey to the said Grantees, their heirs and assigns, ALL those four certainpieCes or parcels of land situate in the Borough of West Fairview, Cumberland County, Pennsylvania bounded and · described as follows, to wit~ TRACT NO. l~ *BEGINNING at a point in the western line of Second Street at or opposite the center of the partition wall dividing properties known as No. 106 and No. 108 Second Street~ thence west- wardly, through the center of the partition wall dividing properties known as No. 106 and No. 108 Second Street and beyond, one hundred thirty-nine (139) feet to a point in the eastern line of an unnamed alley~ thence southwardly along the eastern line of said unnamed .alley,. twenty~two (22) feet to lands of Oliver aicci; thence eastward- ly.along lands of Oliver Ricci one hundred thirty-nine (139) feet to · point in.the western ~ine of Second Street; thence northwardly along the'western line of Second Street twenty-two (29) feet to a po. iht, the place of'BEGINNING. Having thereon erected the southern' half of a 2 1/2 story frame .apartment known as No. 106 Second Street. TRACT'NO. 21 'BEGINNING at a point in the western line of Second 'Street'at.or opposite'the center of the partition wall dividing properties'known as No. 106 and No. 108 Second Street} thence west- wardly through the center of the partition wall dividing properties. known as No. 106 and No. 108 Second Street and beyond, one hundred thirty-nine (139) feet. to a point in the eastern line of an unnamed alley; thence northwardly along the eastern line of said unnamed alley twenty-two (22) feet to lands of Alma Ray Shaull; thence'eastwardly along lands of Alma Nay Shaull one hundred thirty-nine (139} feet to a point in the western line of Second Street; thence southwardly along -1- · IN WITNESS WHEREOF, said Grantors have hereunto set their hands a~d seals tho .day and year first above ~ritten. I ~ON~E B. S~ULL . t. . . ..... CO~TY OF CUrBeD ~ ~ .............. On this, the ~ day of th~ , 1991, before me the undersigned officer, a Notary Public, personally appeared X. RICHARD SHAULLand YVONNB E~ SHAULL, his wife, known to me (or earle-' factorily proven} to be the persons whose na~es are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year ~irst above written. -3- o~ary Public ~J N:)T/,II~L SeAL' KAYE flF, Ni-F:, I.UCJ(L"/, ~'t~';',ry Public I,!.,' Cc,:r.~a. I);,;:~.. ~/,.:~ch 2~, 15'93 ~' DEED~SBAUZZ~,DED TIlX8 DBIID RADIi ~ES ~%k day of (~c~_ in the year of our Lord one thousand nine hundred~inety-one (1991). BETWEEN. K. RICHARD S~AULL and YVONNE B. SHAULL, his.wife and Grantors, /A/~/A PAUL J~ SOPENSKY and EMILY L. SOPE~KY, as Joint tenants with the right of su~ivorshlp, Grantees, WITNESSBTH, that in consideration of ONE HUNDRED EIGHTY THOUSAND and NO/100~ ...................... ($180,000.00) ...... l ............ Dollars[.. in hand paid, the receipt whereof is hereby acknowledged, the said Grantors do hereby grant and convey to the said Grantees, their heirs and assigns, ALL those four certain pieces or parcels of land situate in the Borough of West Fairview, Cumberland County, Pennsylvania bounded and -described as follows, to wit5 TRACT NO. 15 BEGINNING at a point in the western line of Second Street at or oppos£te the center of the partition wall dividing properties known as No. 106 and No. 108 Second Street~ thence west- 'wardly, through the center of the partition wall dividing properties known as No. 106 and No. 108 Second Street and beyond, one hundred thirty-nine (139) feet to a point in the eastern line of an unnamed alley~ thence, southwardly along the eastern line of said unnamed .alley,, twenty-.two (22) feet to lands of Oliver Ricci~ thence eastward- ly.along lands Of Oliver Ricci one hundred thirty-nine (139) feet to a point in-the western line of Second Street~ thence northwardly along the'western line of Second Street twenty-two (22) feet to a point, the place of'BEGINNING. Having thereon erected the souther~ half of a 2 I/2 story frame apartment known as No. 106 Second Street. TRACT'NO. 25 'BEGINNING at a point in the western line of Second Street at or opposite'the center of the partition wall dividing propertieg.known as No. 106 and No. 108 Second Street~ thence west- wardly through the center of the partition wall dividing p~operties. known as No. 106 and No. 108 Second Street and beyond, one hundred thirty-nine (139) feet. to a point in the eastern line of an unnamed alley~ thence northwardly along the eastern line of said unnamed alley twenty-two (22) feet to lands of Alma Ray Shaull~ thence eastwardly along lands of Alma Ray Shaull one hundred thirty-nine (139) feet to a point in the western line of Second Street~ thence southwardly along -1- oog .35 u:£ 374 oo the western line of Second Street twenty-two (22) feet to a point, the place of BEGINNING. HAVING'thereon erected the northern half of a 2 1/2 story frame apartment known as No. ~Second Street. TRACT NO. 35 BOUNDED on the east by Second Street; on the south by property late of Delma Ray Shaull; on the west by an Alley and on the north by property now or late of Emanuel Noopy. Said property having a frontage on Second Street of forty-three (43) feet and three and three-fourth (3 3/4} inches, and extending in depth one hundred thirty-nine (139) feet. HAVING thereon erected a two and one-half ~tory frame dwelllngknown as ~o./,~....~econd Street. ~TRACT NO~ 45 BEGINNING at a point in the southeast corner of Third ~U/and State Streets, thence along the southern line of State Street (.%~/~/ south fifty-eight and one-half (58 1/2) degrees east forty-one and two tenths (4.1.2) feet to lands of Albert J. Shaull; thence along lands late of Albert J. Shaull south thirty-four (34) degrees west sixty- seven and eight tenths (67.8} feet to a point on the eastern line of Third Streetl thence along the eastern line of Third Street north . three and three-fourths (3 3/4) degrees east seventy-nine (79) feet t~ a point, the place of BEGINNING. BEING part of Lot No. 7 on the Plan of May's Addition to the Town of West Fairview. BAVING thereon erected a two story frame store and apartment building known as no. 232 State Street. BEING the same premises which Mary C. Lewis, Clerk of the Orphans' Court Division of the Court of Common Pleas of Cumberland County, Pennsylvania, pursuant to an order of the Court in the Estate of Al~a B. Shaull, by her deed dated April 12, 1988, and recorded in the Office of the Recorder of Deeds in and for the County of Cumberland and Commonwealth of Pennsylvania, in Deed Book I, Volume 33, Page 740, granted.and conveyed unto K. Richard Shaul~ and Yvonne B. Shaull, Grantors herein. See alao Art£olee of Agreement dated May 8, 1989, and recordea::in the Office of the Recorder of Deeds in Coed Book , Volume ~ , Page ~0 . ~ AND the said: Grantors hereby covenant and agree that they wlXl · warrant specially the property hereby conveyed. Exhibit B This Indenture sop.n. , .nd L. [;p. g,%artle. of °h' Paul-- ~,~ party of the second part: WITNESSETH, that the said parties of the first part, in consideration of $1.00 (one dollar} to them now paid by the said party of the second part, doss grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns, ALL THAT CERTAIN piece or parcel of land situate in the Borough of West Fairview, Cumberland County, Pennsylvania bounded and described as follows, to wit: BOUNDED on the east by Second Street; on the south by property late of Delma Ray Shaull; on the west by an Alley and on the north by property now or late of Emanuel Hoopy. Said property having a frontage on Second Street of forty-three (43) feet and three and three-fourth (3 3/4) inches, and extending in depth one hundred thirty-nine (139) feet. HAVING thereon erected a two and one-half story frame dwelling known as No..ll~,,~econd__ Street. BEING the same premises which K. Richard Shaull and Yvonne B. Shaull, his wife, by their deed dated May 6, 1991, and recorded May 31, 1991, in the Office of the Recorder of Deeds in and for the County of Cumberland and Commonwealth of Pennsylvania, in Deed Book D, Volume 35, page 740, granted and conveyed unto Paul J. Sopensky, a/k/a Paul John Sopensky, a/k/a P. John Sopensky, and Emily L. Sopensky, as joint tenants with the right of survivorship, Grantors herein. THIS CONVEYANCE IS EXEMPT FROM REALTY TRANSFER TAXES AS IT IS A CONVEYANCE FROM MOTHER ~ SON TO SON. Undsr and subject to any and all restrictions, objections, etc., as they appear of record. With the appurtenances: TO HAVE AND TO HOLD the same unto and for the use of said party of the second part his heirs and assigns forever, And the said Paul J. Sopensky, a/k/a Paul John Eopsnsky, a/k/a P. John Sopensky, and Emily L. Sopensky for their heirs, executors and administrators covenants with the said party of the second part his heirs and assigns against all lawful claimants the same and every part thereof to Specially Warrant and Defend. NOTICE - THIS DOCUMENT MAY NOT/DOES NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHT OF SUPPORT UNDERNEATH THE SURFACE Iff%ND DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COA~ MAY HAVE/MAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL OF SUCH COA5 AND, IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. THE INCLUSION OF THIS NOTICE DOES NOT ENLARGE, RESTEICT OR MODIFY ANY LEGAL RIGHTS OR ESTATES OTHERWISE CREATED, TRANSFERRED, EXCEPTED OR RESERVED BY THIS INSTRUMENT. [Thte notice is set forth in the manner provided in Section 1 of the Act of July 17, 1957, P.b. 984, as amended, and is not intended as notice of unrecorded instruments, if any.] WITNESS the hands and seals of the said parties of the first (Seal) (Seal) (Seal) (Seal) ON THIS the /~ day of SS. undersigned officer, personally appeared Paul J. Sopensky, a/k/a Paul John Sopensky, a/k/a P. John Sopensky, and Emily L. Sopensky, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes ther~ih':'.".'"?~ ..... ...........~';. "~.. ,.~,'.. contaxned. · .b .:: ';t:.'" " ".' \ '~ ' IN WITNESS WHEREOF, I hereunto set my h~d and official My Commission Expires: (Title of Officer) CERTIFICATE OF RESIDENCE hereby certify that Paul John Sopensky's precise residence is 110 Second Street, West Fairview, PA. WITNESS my hand this /~'~day of /~ , 1~,~. RECORDED NUMBER DEED VOL. (ADOPTED) PAGE Paul J. Sopensky, a/k/a Paul John Sopensky, a/k/aP. John Sopensky, and Emily L. Sopensky FEES, $ FROM ,f '.J%~'-'~' . '. .... , TO 9~-te of Pennsylvania '% SS,k:~J' ~ ,'~,u,,W of CumbeHand ~ . Paul John Sopensky.~,rd~d in the office for the r'$c~lng of DI~ . .~ ~nd for Cumberland CounW~P~/ .]~Book ~- Vol. ~ .- Pa~ ~ ~ .~vlutess my hand and~eal of offi~ of E~ Cra'lisle. PA thia ~ day of ~ 19~ Scott A. Bell, Esquire 5070 Ritter Road, Suite 115 Mechanicsburg, PA 17055 Exhibit C April 21, 2004 John Sopensky 30 East Maplewood Avenue Mechanicsburg, PA 17055 Sale Agreement Tax ID 45-1%1044-218 (106-108 Second Street) Tax ID 45-17-1044219 (110 Second Stree0 West Fairview Cumberland County, Pennsylvania Dear Mr. Sopenslcy: I am tendering to you a proposal to purchase the above property. I agree to buy your lands, and improvements identified above and further del'meal below: Tax ID 45-17-1044-218 106-108 North Second Street Five (5) Unit Aparm~ent Building 2,862 Square Feet of GLA Tax ID 45-17-1044-219 110 North Second Street Four (4) Unit Apartment Building 2,289 Square Feet of GLA I agree to buy your lands, and improvements identified above, on North Second Street, West Falrview, Pennsylvania for the sum of Two Hundred Eighty ($280,000) dollars. · The sum of Two Hundred'Elgh~ Thousand ($280,000) dollars, payable as follows: Cash at signing of this agreement: $2,0000 Balance payable at settlement.: $278.000 Total $280,000 As part of this agreement, I reserve the right to purchase "the subject property" as two separate and distinct properties as follows: Tax ID 45-17-1047. 218 Five (5) Unit Aparanent Building ($140,000) Cash at signing of this agreement: TO be delivered within 5 days of execution of this agreement Balance at settlement: Total $1,000 $140,000 Tax ID 45-17-1044-219 Four (4) Unit Apartment Building ($140,000) Cash at signing of this agreement: To be delivered within 5 days of execution of this agreement Balance at settlement: Total $1,000 $140,000 397 High Street Village of West Fairview, 17025 * (717)979-0540 * April 21, 2004 · Settlement shall be made on or before July 1, 2004, and time is made the essence of this agreement. · Possession to be delivered at settlement. · Tide to be conveyed by special warranty deed to be good and marketable free and clear of all liens and encumbrances. · Rents, taxes and utilities to be apportioned as of date of settlement. The sale of the property is "as is". · You should be aware, I am a licensed real estate broker in the Commonwealth of Pennsylvania (RB- 052086-L; Expires May 31, 2004), and am buying this property for personal gain. · Discovery of any environmental conditions may necessitate re-negotiation at the buyers request. · The sale agreement is contingent upon availability of acceptable financing on behalf of the buyer. The parties hereto are legally bound by this agreement and intend it to bind their heirs, executors, successors, administrators and assigns. By: Dated: By: ~0(~. ;fl~ Dated: Seller: John $opansky Exhibit JOSEPH A. (717) Fix: (717) June 2, 2004 Mr. lohnSopensky 30 East MaplewoodAve. Mechanicsburg, PA17055 VIA FIRST CLASS U.S. MAlL Re: Our Client: Jeffrey L Walters Premises Situate: 106-108 North Second Street, West Fairview, Cumberland County, Pennsylvania 17025 110 Second Street, West Fairview, Cumberland County, Pennsylvania 17025 Agreement of Sale Dated.gpri121, 2004, Signed by Mr. Sopensky April 25, 2004 Dear Mr. Sopensky: Please be advised we represent Jeffrey L. Walters of 397 High Street, West Fairview, Cumberland County, Pennsylvania 17025. Mr. Waiters has brought to our attention an Agreement of Sale for the above- referenced premises, the total consideration for which was divided $140,000.00 Purchase Price, each parcel, for a total consideration of $280,000.00. We further understand that the said consideration ($280,000.00) was the result of arm's length negotiation resulting in an agreement, reduced to writing and signed by each of you as aforesaid. Mr. Waiters advised me late last week that you recently stated to him that you will only cooperate in the sale of the referenced premises in the event he agrees to increase the sale price to the sum of $290,000.00. Obviously, and as you are undoubtedly aware, the $280,000.00 sale price for the two (2) properties is in fact the agreed-upon amount as set forth in writing in the Agreement of Sale which as well contains language sufficient to clearly identifiy the premises, the subject of said Agreement, the same having been executed both by Mr. Waiters as Buyer and yourself as Seller. It is clear, therefore, that you are legally obligated to sell to Mr. Walters the two (2) identified parcels of property in accordance with the terms and provisions of the Mr. $opens]9' dune 2, 2004 Page 2 April 21, 2004, Agreement of Sale and for the price set forth therein in the amount of $280,000.00. In the event you elect not to cooperate and refuse to convey the same in timely manner and in accordance with said Agreement to Mr. Walters upon payment of the Price in accordance with all remaining terms and provisions of the aforesaid Agreement of Sale, Mr. Waiters will be left with no alternative other than to commence appropriate legal proceedings against you to compel the sale and as well, to seek payment by you of all legal costs, costs of the action, and other fees and expenses as may be incurred by him. I therefore heartily recommend to you that you promptly contact Mr. Walters to proceed with the obligations on the part of the Seller in accordance with the aforesaid Agreement of Sale to move to settlement thereon on or before July 1, 2004. Thank you for your attention to this important matter. MSS/ap Enclosure (Copy of the Agreement of Sale) Vb4trul~, yours, Ma-rk ~. SStqTer "- Exhibit E Jos~ A. KLmN ~fA~ S. SIL%-ER JOSEPH ~l. I{LEIN. P.C. ATTORNEYS AT LAW POST OFFICE BOX 1152 HARRISBI~RO. PA moa June 29, 2004 17171 1~13~3-o132 F~X: (717} 2/3~3-2510 Mr. John Sopcnsky 30 East Maplewood Ave. Mechanicsburg, PA 17055 VIA FACSIMILE (717) 558-9220 AND FIRST CLASS U.S. MAIL Re: Our Client: Jeffrey L Waiters "~. Premises Situate: 106-108 Second Street, West Falrview, Cumberland County, Pennsylvania 17025 110 Second Street, West Fairvienv, Cumberland County, Pennsylvania 17025 Date of Settlement: Thursday, July 1, 2004 Dear Mr. Sopensky: Over the past several days Denise from Thc Sentinel Agency, LLC, together with Mr. Rick Shoop of that firm, as well as myself and Mr. Walters, have continually attempted to communicate with you by telephone and voieemail messages left at your several telephone numbers (766-7143; 697-4440) to obtain specific information from you with respect to details required to complete the title search and as well prepare the necessary HUD-I Settlement Statement and otherwise prepare for settlement. Settlement, incidentally, has been scheduled on the date you requested, Thursday, July 1, 2004, at 9:30 a.m., at the offices of The Sentinel Agency, 2146 North Second Street, Harrisburg, Pennsylvania 171 I0. In accordance with our telephone conversation of several days ago, in order to have no charges for the same assessed against you, you requested that I prepare the deeds for the properties to be conveyed to Mr. Walters, and I have agreed to do so. Further, you raised the issue of transfer tax and that has now been resolved by several messages left on your various voieemail machines confirming that Mr. Walters will pay all transfer tax as imposed on the conveyance of the subject properties. The Sentinel Agency, in several conversations with you, has requested specific information with respect to rents, security deposits, authorizations to obtain pay-offs on your mortgage with Mellon Bank and on that with Orrstown Bank and obtain either satisfactions and/or releases from the lien of mortgage in the event one of those mortgages (Orrstown Bank) is a "blanket mortgage" covering not only the subject properties but others as well. Mr. Sopensky · June 29, 2004 Page 2 These specific areas of inquiry, and perhaps others, have been stated and restated to you several times by both Mr. Shoop and Denise of The Sentinel Agency but as of noon on June 29, 2004, you have still not provided the requested information to them. Mr. Walters stands ready, willing and able to perform as purchaser at the settlement scheduled as aforesaid. To date, however, you have continually failed to provide the necessary information requested on multiple occasions and by multiple persons and as well, you have failed to confirm that you will be in attendance at the settlement scheduled on ~'e date you have selected for the I must therefore advise you that in the event you fail to appear and perform at the settlement in a timely and appropriate manner, and should the settlement not occur on the date and at the time indicated herein, Mr. Walters will be then left.with no alternative other than to commence the necessary legal action against you in the form of an aetinn in equity seeking specific performance on the Agreement of Sale, which action would as well claim for additional expenses and costs incurred, counsel fees, and payment by you of any and all costs and expenses incurred in obtaining the mortgage loan commitment for the purchase of the property, title search and title insurance policy commitment, and any and other costs and charges incurred by Mr. Walters in this matter. When I obtained the facsimile number from Ms. Clark earlier today, I specifically inquired whether you would receive this letter should it be faxed to the 558-9220 fax number she provided to me and her response was "Yes, Mr. Sopensky will get the letter." Would you kindly promptly contact either Denise or Mr. Shoop at The Sentinel Agency (234-2666) to provide the specific information which they have requested from you on several occasions so as to enable them to complete the necessary data colleetion and settlement sheets for the settlement scheduled for this Thursday, July 1, 2004, at 9:30 a.m. Thank you for your prompt attention to these matters. Ver3~truly.yours, Mar[ MSS/ap cc: Mr. Jeffrey Walters (via facsimile only) Mr. Rick Shoop (via facsimile only) Exhibit F JOSEPH A. ATTOHNEXS AT LaW POST OFFICE Box 11§2 HtRalSElrao, PA 17108 JOSEPH A. I{LEIN M~ax S. Smvza 1717) l~.x: (717) 238-2516 July 20, 2004 Mr. John Sopensky 30 East Maplewood Ave. Mechanicsburg, PA 17055 VIA FIRST CLASS U.S. MAIL AND CERTIFI]~D MAIL, RETURN RECEIPT REQUESTED Re: Our Client: Jeffrey L Walters Premises Situate: 106-108 Second Street, West Fairvie~v, Cumberland County, Pennsylvania 17025 110 Second Street, West Faitn,ie~v, Cumberland County, Pennsylvania 17025 Dear Mr. Sopensky: Pursuant to an Agreement of Sale executed by Mr. Walters April 21, 2004, and by you April 25, 2004, all parties met at the offices &The Sentinel Agency on Thursday, July 1, 2004, presumably with a view to conclude settlement on the above-referenced real estate wherein Mr. Walters is the purchaser and you are the seller. Mr. Walters appeared at that settlement ready, willing and able to perform and pay the full purchase price as financed by a mortgage from Mid Penn Bank, and, subsequent to discussion with you agreed for purposes of the settlement only, to pay all real estate transfer taxes (rather than the standard, usual and customary 'A each by seller and buyer), and as well agreed to pay to you an additional sum of $2,000.00 for all refrigerators and stoves as they were extant in the apartments the dates the aforesaid Agreement of Sale was entered into and thus comprised the property in its then "as is" condition. In addition, all financing was in place in accordance with a financing commitment issued to Mr. and Mrs. Walters from Mid Penn Bank and all title work had been completed by The Sentinel Agency which was as well prepared, ready, willing and able to proceed with the dosing on July 1, 2004, in accordance with the HUD-1 Settlement Sheets reviewed by Mr. Shoop with you on said date. Unfortunately, as a result of discussions concerning multiple issues including one as simple as delivery of the possession of the premises by tender to the purchaser of all keys to the same, the settlement did not conclude on July 1, 2004. However, all funds Mr. Sopensky July2~ 2004 Page 2 required to be paid by Mr. Walters were delivered to and continue to remain with Mr. Kick Shoop at The Sentinel Agency and Mr. Walters remains ready, willing and able to proceed to settlement in accordance with the contract with you. Therefore, and with a view to a prompt resolution of this matter, Mr. and Mrs. Walters stand ready, willing and able to proceed to a final settlement on this transaction in accordance with the terms set forth above as agreed upon luly 1, 2004, and as the same may in part modify the Agreement of Sale dated April 21, 2004, so long as the final settlement together with delivery of possession of the premises by delivery of all keys occurs on or before the dose of business Friday, July 30, 2004. In the event you fail to cooperate and through The Sentinel Agency agree to schedule a mutually convenient date and time for this final settlement, Mr. and Mrs. Walters will be left with no reasonable alternative other than to commence the necessary legal action against you in equity, seeking specific performance in accordance with the Agreement of Sale dated April 21, 2004, and will in addition seek any and all costs and expenses reasonably incurred and related to the breach of said Agreement of Sale by you, without legally justifiable reason. I might also advise that in the event this matter does not settle and legal action is required, the bank's interest rate will increase and those additional interest charges, costs and expenses will as well be claimed against you. Would you therefore kindly contact Mr. Rick Shoop at The Sentinel Agency (717-234-2666) to advise of those dates and times available to you prior to the close of business on Friday, July 30, 2004, when you could appear at that office for purposes of attending final settlement thereon so that Mr. Shoop may thereafter coordinate final settlement with Mr. and Mrs. Walters and me. Thank you for your attention to these important matters. ! ,~~truly t/ours, MSS/ap cc: Mr. Jeffrey Walters Mr. Rick Shoop Mr. William Feist Exhibit G VERIFICATION I, Jeffrey L. Walters, hereby state that he is the Plaintiffin the foregoing action and that the foregoing averments in the COMPLAINT are true and correct to the best of his knowledge, information and belief. The language of said averments is that of counsel and not of Plaintiff Plaintiff has read the Complaint and to the extent that it is based upon information, which he has given to his counsel, it is true and correct to the best of his knowledge, information and beliefi To the extent that the language of the Complaint is that of counsel, he has relied upon counsel in making this Verification, This Statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsificatlon to authorities.Je ffrey~~ ~l~~ 10 VERIFICATION I, Beth A. Walters, hereby state that she is the Plaintiffin the foregoing action and that the foregoing averments in the COMPLAINT are true and correct to the best of her knowledge, information and belie£ The language of said averments is that of counsel and not ofPlaintifY Plaintiffhas read the Complaint and to the extent that it is based upon information which she has given to her counsel, it is true and correct to the best of her knowledge, information and belief To the extent that the language of the Complaint is that of counsel, she has relied upon counsel in making this Verification. This Statement is made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: I1 SHERIFF'S RETURN - CASE NO: 2004-03977 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WALTERS JEFFREY L ET AL VS SOPENSKY JOHN ET AL REGUIJIR CPL. MICHAEL BARRICK , Cumberland County,Pennsylvania, says, the within NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon SOPENSKY JOHN AKA PAUL J SOPENSKY AKA PAUL JOHN SOPENSK DEFENDANT , at 0008:44 HOURS, on the 13th day of August at 30 EAST MAPLEWOOD AVENUE MECHA~NICSBURG, PA 17055 by handing to JOHN SOPENSKY a true and attested copy of NOTICE COMPLAINT IN EQUITY the , 2004 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.40 Affidavit .00 Surcharge 10.00 .00 35.40 Sworn and Subscribed to before me this /~ day of ~. ~ ~ ~ A.D. ~ Prothonotary So Answers: R. Thomas Kline 08/16/2004 JOSEPH KLEIN JEFFREY L. WALTERS and : BETH A. WALTERS, husband and : wife, : 397 HIGH STREET : WEST FAIRVIEW, PA 17025, : Plaintiffs : JOHN SOPENSKY, : a/ida PAUL J.SOPENSKY, : a/Ida PAUL JOHN SOPENSKY, : a/k/a P. JOHN SOPENSKY : 30 EAST MAPLEWOOD AVENUE : MECHANICSBURG, PA 17055, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY No. 04-3977 Civil Term JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned action "Settled and Discontinued" on the docket. By: JOSEPH A. KLEIN, P.C Mark S. Silver, Esquire I.D No. 09825 500 North Third Street, 7th Floor Harrisburg, PA 17101 (717) 233-0132 Attorneys for Plaintiffs Jeffrey L. Walters and Beth A. Walters, husband and wife Date: .-7. '