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HomeMy WebLinkAbout04-4919FRED L. METTLER and THERESA J. METTLER, husband and wife, Plaintiffs V. MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT COMMUNITY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004- 9 9 19 CIVIL TERM CIVIL ACTION-LAW PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons in the above-referenced case on behalf of the Plaintiffs, Fred L. and Theresa J. Mettler, to the Defendant, Mahlon N. Zimmerman t/a Country Manor Adult Community. O'BRIEN, BARIC & SCHERER Date: q l Solcq Robert L. O'Brien, Esquire I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Please serve the Defendant as follows: Mahlon N. Zimmerman t/a Country Manor Adult Community 9 Lantern Lane Shippensburg, Pennsylvania 17257 ? G s ? Q T? L /C r.r G Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS FRED L METTLER AND THERESA J METTLER husband and wife Court of Common Pleas Plaintiff Vs. No. 04-4919 In CivilAction-Law MAHLON N ZIMMERMAN T/A COUNTRY MANOR ADULT COMMUNITY 9 LANTERN LANE SHIPPENSBURG, PA 17257 Defendant To MAHLON N ZIMMERMAN T/A COUNTRY MANOR ADULT COMMUNITY You are hereby notified that FRED L METTLER AND THERESA J METTLER the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) CURTIS R. LONG Prothonotary Date SEPTEMBER 30, 2004 By Q M4&-- Deputy Attorney: Name: ROBERT L O'BRIEN ESQUIRE Address: 19 WEST SOUTH STREET CARLISLE, PA 17013 Attorney for: Plaintiff Telephone (717) 249-6873 Suprem Court ID No. 28351 SHERIFF'S RETURN - REGULAR CASE NO: 2004-04919 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND METTLER FRED L ET AL VS ZIMMERMAN MAHLON N T/A COUNTRY SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ZIMMERMAN MAHLON N T/A COUNTRU MANOR ADULT COMMUNITY the DEFENDANT at 1325:00 HOURS, on the 4th day of October 2004 at 9 LANTERN LANE SHIPPENSBURG, PA 17257 by handing to KATHY KYLE, OFFICE CLERK, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.80 Affidavit .00 Surcharge 10.00 .00 42.80 Sworn and Subscribed to before me this day of C c" x/n!19a?/ A.D. rothonotary So Answers: R. Thomas Kline 10/05/2004 OBRIEN BARK 'ERER By: Dep , y Sheriff FRED L. METTLER and, IN THE COURT OF COMMON PLEAS OF THERESA J. METTLER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2004 - 4919 CIVIL TERM MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT CIVIL ACTION-LAW COMMUNITY, Defendants 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 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 courtwithout 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. 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 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 FRED L. METTLER and, THERESA J. METTLER Plaintiffs V. MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT COMMUNITY, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 4919 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff's are Fred L. Mettler and Theresa J. Mettler, adult individuals residing at 5 Lantern Lane, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant is Mahlon N. Zimmerman, an adult individual, trading as Country Manor Adult Community, with a business location at 9 Lantern Lane, Shippensburg, Cumberland County, Pennsylvania 17257. 3. In the spring and summer of 2002 the Plaintiffs came upon advertising in a magazine known as Mature Living Choices. Mature Living Choices is a publication that is marketed regionally and contains advertising about housing choices for senior citizens. The particular region that was covered included Pennsylvania, New Jersey and Delaware. 4. The Defendant had placed advertising with the following statements; "NEW Spacious One-floor Custom Built Homes to Meet Your Needs" Copies of the advertising are attached as Exhibit A and incorporated herein. 5. The Plaintiffs traveled to the planned community and met with, Todd Swann, an agent of the Defendant. 6. At the time they inquired, the model home was being marketed. Mr. Swann stated that while the model home was not a custom built home that it was in fact equivalent in that it was a modular home. 7. Based on the representation made by the Defendant or his agent, the Plaintiffs entered into contracts, prepared by the Defendant, whereby they were purchasing a 2000 year model "Hallmark" modular home and entering into a long term air space lease. The relevant portion of the contracts are attached hereto as Exhibit B and incorporated herein. 8. The Hallmark modular homes are produced by a well established manufactured homemaker that is located in Rhode Island. Provisions of the Hallmark marketing materials are attached as Exhibit C and incorporated herein. One portion of the marketing information for Hallmark provides: A "Modular home" is ... A "STICK Built " HOME, CONSTRUCTED IN A FACTORY UNDER "IDEAL" CONDITIONS, STRUCTURALLY ENGINEERED TO BE BUILT IN SECTIONS (MODULES) WHICH CAN BE TRANSPORTED TO YOUR SITE. 9. The Defendant also represented that the model home had only been used as a model and not as a residence. 10. At all times relevant hereto, the Plaintiffs relied on the Defendant's representations. 11. The Plaintiffs performed their terms of the contract and took possession of the home. 12. Subsequent thereto, the Plaintiffs discovered the following: A. The home was not a manufactured home built by Hallmark, but rather was a mobile home mounted on a steel frame and brought to the site and was a Marlette, Stanton II, model 3266. It was manufactured on 2/9/00 as per the communication from Marlette attached hereto as Exhibit D. B. The site improvements were constructed in a negligent manner such that water pooled under and about the residence. C. There were other deficiencies with the home that had to be corrected by the Plaintiffs after they purchased the home. COUNT 1- UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 13. The allegations in Paragraphs 1 through 12 are incorporated herein. 14. The Defendant violated one or more of the following provisions of 73 P. S. Section 201, et seq, known as the Unfair Trade Practices And Consumer Protection Law. (4) "Unfair methods of competition" and "unfair or deceptive acts or practices" mean any one or more of the following: (1) Passing off goods or services as those of another; (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services; (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; (iv) Using deceptive representations or designations of geographic origin in connection with goods or services; (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have; (vi) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or second-hand; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (viii) Disparaging the goods, services or business of another by false or misleading representation of fact; (xvii) Engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding. 15. Pursuant to Section 201-9.2. Private actions, the Plaintiffs have the right to recover actual damages and the Court may, in its discretion, award up to three times the actual damages sustained. 16. The Plaintiffs allege that the actual damages they have sustained are: A. Original costs at time of purchase $88,368.20 B. Landscaping $1,868.02 C. Range and refrigerator $1,914.36 D. Gutter topping $1,545.00 E. Singer Plumbing and Heating $280.20 F. DK Electric $610.00 G. Duraclean $302.10 H. Carbaugh & Landi Painting $1,900.00 1. Country Manor $1,163.00 J. Glenn Bollinger $1,517.00 K. Lumber and other materials $1,199.88 L. Attorney Fees, to be determined at time of trial. WHEREFORE, the Plaintiffs respectfully request that the contract be rescinded, that they be awarded their actual damages, interest, costs, attorney fees and additional damages as the Court deems merited, an amount in excess of $25,000, the arbitration limits. COUNT 2 - MISREPRESENTATION 17. The Plaintiffs incorporate Paragraphs 1 through 16 herein. 18. The aforesaid actions by the Defendant andi'or his agent, that the home being purchased by the Plaintiffs was a 2000 modular home, were representations that were material to the transaction; made falsely, with knowledge of their falsity or recklessness as to whether they were true or false; were made with the intent of misleading the Plaintiffs to rely on them; that the Plaintiffs justifiably relied on the misrepresentations and the resulting injury to the Plaintiffs, was proximately caused by the reliance. 19. In the alternative, the aforesaid actions by the Defendant and/or his agent that the home being purchased by the Plaintiffs was a 20CIO modular home, were representations that were material to the transaction; made under circumstances in which the Defendant and/or his agent ought to have known their falsity; were made with a failure to make a reasonable investigation as to the truth of the statement ;were made with the intent to induce the Plaintiffs to rely on them; that the Plaintiffs justifiably relied on the misrepresentations and the resulting injury to the Plaintiffs was proximately caused by the reliance. 20. In the alternative, the representations made by the Defendant and/or his agent were untrue, were material in inducing the Plaintiffs -to purchase the home and the Plaintiffs relied on the representations and their resulting injury was proximately caused by the reliance. 21. The Plaintiffs allege that the actual damages they have sustained are: A. Original costs at time of purchase $88,368.20 B. Landscaping $1,868.02 C. Range and refrigerator $1,914.36 D. Gutter topping $1,545.00 E. Singer Plumbing and Heating $280.20 F. DK Electric $610.00 G. Duraclean $302.10 H. Carbaugh & Landi Painting $1,900.00 1. Country Manor $1,163.00 J. Glenn Bollinger $1,517.00 K. Lumber and other materials $1,199.88 L. Attorney Fees, to be determined at time of trial. WHEREFORE, the Plaintiffs respectfully request that the Court rescind the transaction and award as damages their actual damages, interest, costs and attorney fees, an amount in excess of $25,000, the arbitration limits. Respectfully submitted, O'BRIEN, BARK & SCHERER Robert L. O'Brien, Esquire I.D. # 283,51 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The: language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities. 4- DATE: /a d Fred L. Mettler VERIFICATION The statements in the foregoing Complaint are bared upon information which has been assembled by my attorney in this litigation. ThEI language of the statements is not my own. 1 have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities. 1 1 DATE: d. S Tki?/)resa J. Mettler r? > the lifestyle oking for. ter! Here are a few ,ws will be ranked #1 you dreamed possible rplans with attached garage _ntrance and fenced lar clubhouse features hot mputers, etc. il heated pool with land- it _ourts, stimulating walks in ie mid $90's rn* inprecedented sales 011,,T;YARDS We're NATIONWIDEI `,Visit us on the lnt::,rn:= 60,1EKLIW, M E M B E A EXHIBIT A p-17-04 08 57A Cumbel1cmd Co., PA Enjoy Your Best Years Here Toll Free 877-642-385$ Welcome to Country Manor... a new, elegantly planned community for the young at heart offering affordable independent living for an active lifestyle. Set on 35 acres, we arp convenient to many tnetropolitasn cities while offering shopping, restaurants, churches, go{f and entertain- ment nearby. Country Manor offers all the luxuries and amenities you desire. • ?? > Gated Community 76? t <, NEW Spacious One-floor 3 Acre lake with Friendship Custom Built Homes to Meet Gambo 174 Your Needs Coe .. > Nature Trails/1'onnis > 2 BW2 BA Floor Plans w/ Den Must or 3rd BR Available > Clubhouse with Fitness Room O-f) 29 60 ; :Iv > Starting as Low as Mid $70's > Gourmet KBCTrens > Covered Porch/Garage > Optional Fireplace > Myraid of Recrealounal Activities > A rdendly Place To Call Harne! 9 lantern Lane Shippensburg. PA 17257 I-81 to Exit 29,174 West toward VR?Ajnmmg? > Promrty Maintenance Available > Health Farilities and EMT's ony rninules away 11 W. King St., left on King St. Turn left on Queen St. to left on Rustic M? ono . Friday 10:00-5-00 Drive into community, Follow Sal & Sun, By Appointment Rustic Or, to Lantem Lane. Stop % or Call Tulay!! Please say you sow us in Ntatirel in{;r utac?> PAOI 1 tl ?X? jti P.O2 Country Manor 0-1 p-17-04 08:58A Country Manor > Gated Community > 3 Acre Lake with friendship Gazebo > Nature Trails/Tennis > Clubhouse with Fitness Room > Gourmet Kitchens > Covered Porct4arage > Optional Fireplace > Myraid of Recreational Activities 44 > A Friendly Place To Call Home! Cumberland Co., PA ... > NEW Spacious One-floor Custom Buift Homes to Meet Your Needs > 2 BR/2 BA Floor Plans wl Den or 3rd BR Available > Starting as Low as Mid $7V s ? Property Maintenance Available ? Health Facilities and EMT'* only minutes away 1-81 to Exit 29,174 West toward , I W, King $t., left on King St. Turn left on Queen St. to left on Rustic ` Monday - Friday 10:00 -5:00 Drive into community. Follow Sat & Sun. By Appointment Rustic Dr. to lantern Lane. Stop By or Call Today!! Room say you saw w in Ntil =jkAngQwAm > MAN 11 'S' I_XKIkWZ_:YL' P.O3 Welcome to Country Manor... a new, elegantly planned communily for the young at heart offering affordable independent living for an active litestyle. Set on 35 acres, we are convenient to many metropolitan cities while offering shopping, restaurants, churches, golf and entertain- ment nearby. Country Manor offers all the luxuries and amenities you desire. 9 Lantern Lane Shippensburg, PA 17257 Country Manor Adult Community S (S)- Fred and Terri Mettler Phone: 717-545-0586 kddress: 318 Fawn Rid a North Date: N 23/2002 Harrisbur PA 17110 Sales Person: d Swan )elivery Address: 5 Lantern Lane Shippensburg PA 17257 _ot #: Lot 188 Year: 2002 Bedrooms: 3 Model: Hallmark (Marlette model 3266) Sales Lot CM Job # 684-A Proposed Completion Date: OPTIONAL EQUIPMENT LABOR AND ACCESSORIES Base Price of Unit; $82,000.00 It is my responsibility to provide a support system that meets building Options Total $5,000.00 code requirements. Non Taxable Items $3,000.00 due upon signing of contract Fees'& Insurance** Total $87.000.00 Cash Purchase . lTricla4ni- 'xSet U O lions ; ; YES NO OPTION PRICE, Less Balance D66 Above Water/Sewer/Electric Hookup x Net`Allovi ia` =? =y" Microwave x Cash` Down Pa mint =;. $5,000.00 Stoveloven (gas) x Pre 'a` Dis66U t/Rebate';:. Stove/oven (electric) add $125.00 x Sales TaX r; ,:-= :. ',- Refrid erator x --. '-.Un aid Balance & Cask Sale Pricer-., $82,000.00 washer/dryer x Seller and Purchaser agree that not withstanding any other provisions of this Dishwasher x contract that upon all contingencies In this contract having been met, it Landscape package (ten pieces) x purchaser should fail or refuse to purchase the home descried herein within thirt da s afte, notice of availWA4 of the same from Seller iler ma that S Furniture (no uarantee or warranty) x y y , e y retain the entire cash downpaymmt and or net amount allowed for trade as Type of Furnace: gas fired forced a ir liquidated damages. See Attached List L FOR OPTIONAL EQUIPMENT:--$5,000.00 RKS: Settlement date to be December 31, 2002 or sooner If present home is not settled a swing loan will be assumed Initials: Initials: [} __ [ 6UYER_CANNOT._OCCl1PY, ROME UNTIL'ACa °MONEYS ARE 'RELEA,?ED TO COUNTRY MANOR.ADULT?COMM(JNfTY ':#:; mot:. ti - ° a,.. .• ... cl'. • l?L' , It is MUTUALLY UNDERSTOOD that this agreement is subject to necessary corrections, and adjustments conceming changes In net payoff on trade-In to be made at the time of settlement. concrete ad to be 14' x 16' microwave range hood combo add garbage disposal 1 telephone 4 cable locations 3 fan boxes close in door at den 4' closet in den pergo in hallway to replace carpet screened in back porch THIS AGREEMENT CONTAINS THE ENTIRE UNDERSTANDING BETWEEN YOU AND ME AND NO OTHER REPRESENTATIVE OR INDUCEMENT, VERBAL OR WRITTEN, HAS BEEN MADE WHICH IS NOT CONTAINED IN THIS CONTRACT. n EXHIBIT B P. ZIEGLER _.D ;'DER OF DEEC-1 F.RLAN0 C0UINTY-; '02 NOU 5 PM 1 47 THIS DEED, Tax Parcel : 3 q 13 - 01 O a - 0084 MADE THE a 9ro' day of ( C& I'm- in the year of our Lord two thousand two 2002) BETWEEN MAHLON N. ZIMMERMAN, t/a Country Manor Adult Community, Grantor and FRED L. METTLER AND THERESA J. METTLER, :husband and wife, Grantee: WITNESSETH, that in consideration of EIGHTY SEVEN THOUSAND AND 00/100*********( $87,000.00 ) Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said grantor does hereby grant and convey to the said grantees, ALL THAT CERTAIN Air Space Estate, as defined in a Declaration of Covenants and Restrictions for Country Manor Adult Community, a lease-hold residential park, recorded on August 7, 2001 in the office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Misc. Book 680, Page 196, [referred to herein as "the Declaration"] above Lot 188 , as shown in a Final Land Development Plan and recorded on Setpember 28, 2000, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Book 82, Page 5, which :Got 188 is more specifically described as follows:' ALL THAT CERTAIN parcel of land known as Lot No. 188 / Phase 5 on a Land Development Plan for Country Side Village, Phases 5, 6 & 7, as recorded in Cumberland County Plan Book 82, Page 005, Southampton Townshir,.Clamherland County, Commonwealth of Pennsylvania, with a mailing address of 11 Lantern Lane, Shippensburg, PA 17257, being further bounded and described as follows: BEGINNING at an iron pin at the intersection of the eastern right-of-way line of Lantern Lane and Lots 187 / Phase 5 and 188 / Phase 5 of Country Side Village; Thence along the eastern right-of-way line of Lantern Lane, North 23 degrees 13 minutes 30 seconds East, a distance of 62.62 feet, to an iron pin at the southwest corner of Lot 189 / Phase 5 of Country Side Village; 6oox 254 WF206i Thence along Lot 189 / Phase 5 of Country Side Village, South 66 degrees 46 minutes 30 seconds East, a distance of 51.85 feet, to an iron pin; Thence continuing along Lot 189 / Phase 5 of Country Side Village, South 73 degrees 16 minutes 53 seconds East, a distance of 58.52 feet, to an iron pin at the southeast corner of Lot 189 / Phase 5 and on line of Lot 224 / Phase 6 of Country Side Village; Thence along the property line of Lots 224 / Phase 6 and 225 / Phase of Country Side Village:, South 23 dsgrees 13 minutes 30 seconds West, a distance of 55.77 feet, to an iron pin on the northeast corner of Lot 187 / Phase 5 of Country Side Village; Thence along Lot 187 / Phase 5 of Country Side Village, North 73 degrees 45 minutes 48 seconds West, a distance of 110.82 feet, to an iron pin on the eastern right-of-way line of Lantern Lane, the point of BEGINNING. CONTAINING 6,348 Square Feet, or 0.14573 Acres as described on the Land Development Plan for Country Side Village, Sheet 10 of 20 Detail Lot Layout Plan, prepared by Carl Bert & Associates dated May 12, 2000, as revised July 6, 2000. TOGETHER WITH easements of access and of support for excavation (subject to natural conditions, including but not limited to: sinkholes) as specifically set forth in 'Paragraph 4.a of the Declaration. . AND TOGETHER WITH the rignts and obligations accruing to Grantee under the terms of that certain Loan Lease for the above-described Lot, signed and dated the same date as this Deed and evidenced by a Memorandum of Lease suitable for recording in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania. g ? "i M C3 =- r?, o n5 c? s M H- rD ?9 C') c-l rn r- H m m r'*, 9a. ut -- S r•7 77 7- Zri T R ' 1 1 7i>0 'Y7 1 ;M :D Z :;l ? m cn .ao?.sa cn?s tc+ - - ? ?. C ? r? o w 3 -4 + r..) <__ ? c -+ rri x:-- 19 r =K MK r`d ??? c7cn mm 1- >-1 17, r-- -v - 1 r T CA r r-; sm Mm fv `? ?.• - .ra - .o ? J r 1. ti 1'-?l O 1--' R ?">• FJ W C n f-•Y W .. cc ra iR tl4 W F+ 0 ?rro-I' L w `n C t- 3 i 4=1Lrl ac??noc•oZJaLn . 04.E O p C7pp400C Q Gi 9OOK 254 PACE2062 EXHIBIT "Bit MEMORANDUM OF LEASE THIS MEMORANDUM is to confirm the existence of a Land Lease between Mahlon N. Zimmerman t/a COUNTRY MANOR ADULT COMMUNITY, with offices at 490 Millway Road, Ephrata, PA 17522 ("Lessor") and FRED L. METTLER & THERESA J. METTLER with an address of 5 Lantern Lane, Shippensburg, PA 17257, ("Lessee") dated October 29, 2002. The leased property is Lot 188 shown on the final Land Development Plan recorded on September 28, 2000, in the Offices of the Recorder of Deeds, in and for Cumberland County, Pennsylvania, in Book 82, Page 5. The initial term of the Lease is for twent3(-nine (29) years, with renewal terms of twenty (20) years- Date2 (? 02- Dated: k lA a MD I- Dated: .. •t 002._ LESSOR: MAHLON N. ZIMMERMAN, t/a COUNTRY MANOR. ADULT COMMUNITY' by lam/ " ' N Wc>?, ? N AMPER MAN C r" =-? a dWNC,? ut rn ,-j :v z v ? LESSEE: 3 rn ° c ° c> M r- N Vn Q .?t-Ar -? FRED L. METTLER THERESA J. ME TLER COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF IA?JC? St. ) ON THIS, the day of 6 ebo bat 2002, before me the subscriber, personally appeared MAHLON N. ZIMMERMAN, who acknowledged that he executed the foregoing instrument for the purposes therein contained. WITNESS my hand and seal the day and year aforesaid. Notarial Seal Shirley Keys, Notary Public ,-Y -. Hampden Twp., Cumberland County My Commission Expires June 17, 2004 t:.,. h4ember,PennsyNarnaAssociationotNOtaries e;'' ?? • - ._;r; ?,' nox .691 PACE?_'721 ,5-- -t T14-/7 L4 n,( I$` r7 n 0 n. n_ ill Page 3 of 5 A "Modular home" is not... . A MOBILE HOME . AN INFERIOR QUALITY HOME . RESTRICTED TO BASIC PLANS OR STYLES . RESTRICTED TO SMALLER, LOW COST HOMES . RESTRICTED BY ZONING . DIFFICULT TO FINANCE . A NEGATIVE AT TIME OF RE-SALE . HERMETICALLY SEALED TO ARRIVE ON SITE READY TO MOVE INTO. A "Modular home" is... A "STICK BUILT" HOME, CONSTRUCTED IN A FACTORY UNDER "IDEAL" CONDITIONS, STRUCTURALLY ENGINEERED TO BE BUILT IN SECTIONS (MODULES) WHICH CAN BE TRANSPORTED TO YOUR SITE. The modular concept relies upon a FACTORY to produce a substantial structure in order to minimize ON-SITE work. Since the modular cannot replace all of the on site work 100%, we combine the best of both methods to achieve the best possible product structurally and esthetically, for the lowest cost and in the least amount of time. Some of the reasons for the benefits derived from Modular Construction, include: . Use of KILN dried lumber, nailed and glued, on site construction cannot use this quality material or method. . Under roof storage of materials to protect them from the elements before your house is built. . Precise measuring and cutting of materials on pre-set equipment and jigs. . Work performed in a controlled environment, no snow, rain, ice, mud, etc. to hamper the workers or the affect the quality of the product. . Continuous in-house inspections PLUS third party inspections to ensure the quality and integrity of your home. . Accurate in house engineering and drawings detailing virtually every stud and joist. . Reverse some "on-site" construction sequences, resulting in a better quality product. . Components (Modules) each structurally strong enough to retain its integrity without the EXHIBIT C http://www.modular-usa.com/new/ 9/16/2004 Page 4 of 5 remaining components. . Floor joists built into the center beam, not standing on edge on top of the beam. . Steel strapping used in critical areas to add strength. Our homes easily meet the 90 MPH wind requirements. . Two story homes are built with independent ceiling and upper level floor systems resulting in a stronger and more silent home. . Your option to act as your own coordinator to complete the final limited phases of completing your home, thus saving substantially on labor. . Accurate costing! Get started today by... Select from our vast assortment of plans that are available for further customization to your needs and options. Use our "Button # 4" link at the top, left margin of this page to introduce yourself to us and let us know how we can make your new home dream a reality. APPRAISERS I REAL ESTATE www.appmisemames.com J www.erealtyads.com NM W o'R Landscape & Garden Ideas Prefabricated House Look Of Wood - Strength Of Steel. Save Up To 50% on Steel Buildings. ® E-mail this to a friend Copyright ©1997 - 2004 Hallmark Homes, Inc. All Rights Reserved Ads by Company Branch Offices... Headquarters... Atlanta, GA Berwick, PA Branford, CT ( Charlestown, NH P.O. Box 1810 Milford, CT Charlestown, RI 02813 Manufactured House Sources Available by rflodular-usa.com Site Map for Modular-usa.com Prefabricated Home Sources at Modular- usa.com Prefabricated Houses Sources Available by Modular- usa.com Modular Homes for Sale China Building Systems Free Grants to Buy Compare Local Realtors@ Easily. Light gauge steel frame Gov't & foundation gran Try Multiple Services at One Site! technology Ease and speed of for your new or existing assembly 6G05 http://www.modular-usa.com/new/ 9/16/2004 L---Ma" /-900 -398 0234- 24 August 2004 Fred Mettler 5 Lantern Lane Shippensburg, PA 17257 Re: Home #T000080 Dear Sir, The above referenced home was built at this facility 2/9/2000. It is a Stanton H, model 3266. It is a sectional home also know as a doublewide. The standards it was constructed with are regulated by H.U.D code. Bob Bratton Asst. Service Mngr. 9 foe. &D ?1 `' 87, Sao. o-a e`ufw?, , a 4?LTa -'4 EXHIBIT D Marlette Homes, Inc. 0 P.O. Box 947 • Lewistown, Pennsylvania 17044 • 717 / 248-3947 FROM: JAV ID IMAGERY INC PHONE NO. : 717 532 2182! Oct. 28 2004 11:14RM P1 FAX 1 Date: From: ,,.A_ # of pages (including cover page): Subject: Notes: A service of Vivid Imagery Inc. VIVM 33 W King Si_ Shippensburg PA 17257 IMAGERY - . &ft (717) 532.5611 (800) 664-3210 FAX-(717)532-2182 FR0h VIVID IMAGERY INC PHONE NO. : 717 532 2182? Oct. 28 2004 11:15AM P2 July 31, 2002 RE: Prices on. homes Per your request enclosed you will fmd a copy of our Covenants as well as prices on our homes. I hope this will be helpful to you. Prices are as follows: Constitution-New Home $92,900.00 Constitution- Model Not Available /V,,Yj 5Etb„,I 4-r- c?,. `boo." Hallzxiark-New Home $94,900.00 L? u 1 E ??;c? Hallmark-Model $8@ ?6 a 0 6 . -..? .off. ?- Rosewood-New Horne $84,900.00 1 r?ar?? !JaUi? Rosewood-Model $77,900.00 - If you have any further questions please feel free to give us a call at our toll free number 1-877-642-385 8.. _ r COUNTRY MANOR ADULT COMMUNITY Kevin, L Zimxxaerman/caz Enclosure w --? ZP Q ^. ;ID IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW FRED L. METTLER and THERESA J. METTLER, Plaintiffs V. No. 2004-4919 Civil Term MAHLON N. ZIMMERMAN t(a COUNTRY MANOR ADULT COMMUNITY Defendants : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the LAW OFFICES OF GIBBEL, KRAY SILL & HESS, of 41 East Orange Street, Lancaster, Pennsylvania 17602, 717-291-1700, for Defendants Mahlon N. Zimmerman t/a Country Manor Adult Community in the above-captioned case. Respectfully submitted, Facsimile: 717-291-5547 Sup. Ct. Atty. I.D. #81985 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this ")`N-\ day of kb, , 2005, served the foregoing document upon the person and in the manner indicated below. Service by first class mail, addressed as follows: Robert L. O'Brien, Esquire O'Brien, Banc, Scherer 17 West South Street Carlisle, PA 17013 GIBBEL, KRAYBILL & HESS Sup. Ct. Atty. I.D. #81985 . . 5 CO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW FRED L. METTLER and THERESA J. METTLER, Plaintiffs V. No. 2004-4919 Civil Term MAHLON N. ZWMERMAN t/a COUNTRY MANOR ADULT COMMUNITY Defendants : JURY TRIAL DEMANDED NOTICE TO PLEAD To: FRED L. and THERESA J. METTLER c/o Robert L. O'Brien, Esquire O'Brien, Baric, Scherer 17 West South Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days of the date of service hereof or a judgment may be entered against you. Respectfully submitted, GIBBEL, KRAYBILk & J. 41 Past. Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #81985 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW FRED L. METTLER and THERESA J. METTLER, Plaintiffs V. No. 2004-4919 Civil Tenn MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT COMMUNITY, Defendants JURY TRIAL DEMANDED DEFENDANT'S ANSWER NEW MATTER AND COUNTERCLAIM Defendant, Mahlon N. Zimmerman, by and through his attorney, Gibbel, Kraybill & Hess hereby respond to Plaintiffs' Complaint by filing this Answer, New Matter and Counterclaim, and in support thereof state as follows: 1. Admitted. 2. Admitted and Denied. It is admitted only 'that Plaintiff named Mahlon N. Zimmerman t/a Country Manor Adult Community as a defendant in this matter. It is denied that Plaintiffs have a valid claim against the named defendant. 3. Denied. After reasonable investigation, Def,-ndant is without knowledge or information sufficient to form a belief as to the truth of this averment and therefore it is denied. 4. Denied as stated. In that this averment refers to a written document which speaks for itself, any characterization of the document is denied. Defendant specifically denies that it was ever represented to Plaintiffs that the model home they purchased was a "modular" home. Rather, Defendant at all time referred to the home as a "manufactured" home or a "doublewide", which accurately reflected the type of home purchased by Plaintiffs. 5. Admitted and Denied. It is admitted only that Plaintiffs met with Todd Swan. All other allegations are denied because there is no date and time skated for the meeting. Defendant denies that any inaccurate representations were ever made to Plaintiffs. 6. Denied. Defendant specifically denies that Mr. Swan or any other individual associated with Defendant ever stated that the model home was a "modular" home. These allegations also are denied because without stating the date and time of the alleged conversation, Defendant is unable to respond as to what actually was stated. 7. Denied. It is denied that Defendant made any inaccurate representations. At no time did Defendant ever represent to Plaintiffs that the home they were purchasing was manufactured by a company called Hallmark Homes, Inc. It is further denied that Plaintiffs relied on any representations that the model home they were purchasing was manufactured by Hallmark Homes, Inc. and was a modular home because no such representations were ever made. Quite to the contrary, the Plaintiffs understood and knew that the model home was manufactured by Marlette (model 3266) and was a doublewide manufactured home. For purposes of simply identifying different styles and layouts of homes, Defendant had used generic reference names within the development (Constitution, Hallmark and Rosewood). These were all internal names and in no way referred to any type of manufacturer of a home and never referred to Hallmark Homes, Inc. 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the accuracy of the web site for Hallmark Homes, Inc. set forth in this averment and therefore it is denied. It is specifically denied that Plaintiffs ever relied upon the representations made on the web site for Hallmark Homes, Inc. (a company which Defendant never heard about until Plaintiffs filed their complaint). By way of 2 further response, this print out is from a website for Hallmark Homes, Inc. and not for the Defendant and had absolutely no bearing on the transaction between Plaintiffs and Defendant. Defendant never represented that the homes were manufactured by Hallmark Homes, Inc.; quite to the contrary, the agreement attached to Plaintiff's Complaint: specifically states the home is a Marlette Model 3266. 9. Denied as stated. Because Plaintiffs have failed to state whom made the representation, when it was made and exactly what was said, Defendant is unable to respond and therefore this averment is denied. Defendant denies every misrepresenting the condition of the house. Moreover, Plaintiffs had numerous opportunities to inspect the house before deciding to purchase it and, in fact, did inspect the house. 10. Denied. As set forth above, it is denied that Defendant made any representations that Hallmark Homes, Inc. was building the homes or that it was a modular home; therefore Plaintiffs could not have relied on such representations. 11. Admitted and Denied. It is admitted only that Plaintiffs took possession of the house. The remainder of this averment is denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, it is denied that Plaintiffs performed their terms of the contract. 12. A. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth as to what Plaintiffs discovered and therefore it is denied. B. Denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, Defendant denies that the site improvements were constructed in a negligent manner. 3 C. Denied. Without specific allegations of the "other deficiencies" Defendant is unable to respond and therefore this allegation is denied. COUNT 1- UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 13. Defendant incorporates its responses to paragraphs 1 through 12 as if fully set forth herein. 14. Denied as a conclusion of law to which no response is necessary. 15. Denied as a conclusion of law to which no response is necessary. It is specifically denied that Plaintiffs are entitled to recover any damages. 16. Denied. Defendant denies that Plaintiffs are entitled to recover the alleged damages or that these damages were ever incurred. WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that the Court award Defendant his costs and attorney fees for defending this frivolous action. COUNT 2 - MISREPRESENTATION 17. Defendant incorporates its responses to paragraphs 1 through 16 as if fully set forth herein. 18. Denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, Defendant denies ever representing that the model home was a "modular" home. Plaintiffs at all times knew it was a double wide home constructed by Marlette. 19. Denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, Defendant denies ever representing that the model home was a "modular" 4 home. It was disclosed to Plaintiffs that the model home was a manufactured home built by Marlette. 20. Denied as a conclusion of law to which no response is necessary. It is specifically denied that Defendant and/or his agent made representations that were untrue; it is denied that any inaccurate representations were material in inducing the Plaintiffs to purchase the home; and it is denied that the Plaintiffs relied on any untrue representations. It also is denied that Plaintiffs' had any injury that was proximately caused by the reliance. 21. Denied. Defendant denies that Plaintiffs are entitled to recover the alleged damages or that these damages were ever incurred. WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that the Court award Defendant his costs and attorney fees for defending this action. NEW MATTER Wherefore, Defendant incorporates by reference its prior response and hereby avers the following new matter: 22. At all times Defendant accurately represented the manufacturer, type and condition of the model home that Plaintiffs purchased. 23. Defendant never stated that the model home sold to the Plaintiffs had been manufactured by Hallmark Homes, Inc. 24. At all times Defendant responded promptly and in a reasonable manner to all of Plaintiffs' many complaints. 25. Plaintiffs fully inspected the house before purchasing it and agreed to purchase it "as is." 5 26. Plaintiffs knew that the model home they purchased was a double wide. 27. Plaintiffs have failed to state a claim upon which relief may be granted. 28. Plaintiffs' claims arise out of and are based upon the contract between the Plaintiffs and Defendant and therefore are barred by the gist of the action doctrine. 29. Plaintiffs' claims are barred by the statute of limitations. 30. Plaintiffs' claims are barred by the doctrine of accord and satisfaction. 31. Plaintiffs request for rescission is an equitable remedy that is barred by the doctrine of unclean hands, laches, estoppel, waiver and the availability of an adequate remedy at law. 32. To the extent Plaintiffs incurred any damages, Plaintiffs were contributory negligent and are completely or partially responsible for their own damages. 33. To the extent Plaintiffs incurred any damages, Plaintiffs failed to mitigate their damages. 34. Plaintiffs are not entitled to recover their attorney's fees and costs under their claims for fraud and / or misrepresentation. 35. Plaintiffs have listed damages that they are not entitled to recover and for which they did not occur. 36. Plaintiffs have failed to state a claim under the Unfair Trade Practices and Consumer Protection Law and are not entitled to any treble d,,unages or an award of attorney's fees. COUNTERCLAIMS Defendant, by and through his attorney, incorporates by reference its Answer and New Matter and hereby asserts the following counterclaims against Plaintiffs: 6 37. Plaintiffs have engaged in conduct and taken action to intentionally and maliciously harm Defendant and his business interests including but not limited to: a. slandering Defendant and the quality of the homes within Country Manor Adult Community in an attempt to dissuade potential new pwxhasers of property from buying homes in the Community; b. spreading false rumors among existing homeowners within Country Manor Adult Community that Defendant had misrepresented the quality and type of homes; C. disseminating untrue and inaccurate information about Defendant and Country Manor Adult Community; and, d. making claims with the Attorney General's office that were not legitimate but done only in an attempt to disparage the reputation of Defendant. 38. Plaintiffs' actions have directly caused Defendant harm and damages, including the loss of sales within Country Manor Adult Community and injury to Defendant's reputation and business. COUNTERCLAIM -COUNT I TORTUROUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS 39. Paragraphs 1 through 38 above are incorporated herein by reference. 40. Defendant had prospective contractual relationships with many realtors, builders and home buyers throughout and surrounding Cumberland County. 41. Plaintiffs conspired with one another and agreed to interfere with the above mentioned relationships for the sole purpose of harming the Defendant by spreading untrue 7 rumors and making inaccurate statements to others within Country Manor Adult Community and also with prospective purchasers. 42. Plaintiffs did not have justification for taking such actions nor were such actions privileged. 43. As a result of Plaintiffs conduct, Defendant have sustained damages in the form of lost profits in excess of $35,000.00 but in an amount yet unliquidated, as well as attorneys fees and costs. WHEREFORE, Defendant respectfully requests your Honorable Court to enter judgment in favor of Defendant and against Plaintiffs for the full amount of damages incurred by Defendant, including attorneys fees, punitive and exemplary damages plus such other relief that is fair, just and equitable under the circumstances. COUNTERCLAIM-COUNT II SLANDER/DEFAMATION 44. Paragraphs 1 through 43 above are incorporated herein by reference. 45. The Plaintiffs did intentionally denigrate and malign the Defendant and Country Manor Adult Community before prospective home purchasers, residents of the Development, contractors and others in the residential real estate market. 46. It is believed and averred that Plaintiffs spread false rumors and intentionally disseminated misinformation about the Defendant and Country Manor Adult Community as set forth above. 47. Plaintiffs did this intentionally to interfere and damage the Defendant's ability to sell homes in Country Manor Adult Community. 8 48. The slander and defamatory communications have harmed the reputation of Defendant and Country Manor Adult Community. 49. The allegations spoke of by Plaintiffs were not true and have caused Defendant impairment of reputation within the construction and real estate community, lost profits and sales, along with the damages more fully set forth above. WHEREFORE, Defendant respectfully requests your Honorable Court to enter judgment in favor of Defendant and against Plaintiffs for the full amount of damages incurred by Defendant, including attorneys' fees, punitive and exemplary damages plus such other relief that is fair, just and equitable under the circumstances. GIBBEL, KRA By. L-_ / -- Defendant I East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #81985 9 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.A. Section 4904, relating to unworn falsification to authorities. Q4449 46'- Dateon N. i 4an CERTIFICATE OF SERVICE, I HEREBY CERTIFY that I have this ? "'_ day of _ I(Z ?YU ?_, 2005, served the foregoing document upon the person and in the manner indicated below. Service by first class mail, addressed as follows: Robert L. O'Brien, Esquire O'Brien, Banc, Scherer 17 West South Street Carlisle, PA 17013 GIBBEL, KRAYBILL & HESS 4A E;Yst Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #81985 r_? (' C 'f i t.. ? i G FRED L. METTLER and, THERESA J. METTLER Plaintiffs v. MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT COMMUNITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 4919 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER Plaintiffs, through their counsel, reply as follows: 22. The Plaintiffs' incorporate the allegations of their Complaint. From the very outset the Defendant and his agents represented that the home purchased by the Plaintiffs was a modular home, that it was a model home and had not been occupied and utilized as a residence. 23. The defendant and his agents continually represented that the home was a modular home and referred to it alternatively as being Hallmark and Marlette. After they purchased the home and realized that the home was a double wide, they received information that there was a manufacturer of modular homes called Hallmark and have utilized the sales information of that company to point out the differences between a modular home and a double wide. 24. The Defendant was slow in responding to repairing the problems with the home and at the present time problems still remain. Most of the work that was done was band - aided and not sufficient to repair the problems. 25. This is denied, they discussed the sellers responsibility for correcting problems with the home after the sale and the term "as is" never entered into the conversations with Mr. Swan or Mr. Zimmerman. 26. This is denied, at all relevant times prior to the purchase of the home, the Defendant and his agents represented that the home was a modular home. It was only after Mr. Mettler went into the crawl space, because of water accumulation, that it was discovered that the home was a double wide mobile home. 27. The Defendant states a legal conclusion to which no response is necessary. 28. The Defendant states a legal conclusion to which no response is necessary. 29. The Defendant states a legal conclusion to which no response is necessary. 30. The Defendant states a legal conclusion to which no response is necessary. 31. The Defendant states a legal conclusion to which no response is necessary. 32. The Plaintiffs deny that they were negligent and aver that they were misled and misinformed. 33. Plaintiffs have suffered damages and have mitigated their losses to the fullest extent possible. 34. The Defendant states a legal conclusion to which no response is necessary. 35. The Defendant states a legal conclusion to which no response is necessary. 36. The Defendant states a legal conclusion to which no response is necessary. Respectfully submitted, O'BRIEN, BARIC & SCHERER Robert L. O'Brien, Esquire I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Reply To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities. DATE: S O Fred L. Mettler VERIFICATION The statements in the foregoing Reply To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities. DATE: ?i? 'L7? G4°ct a G9 y? QQ Theresa J. Mettler 7C ? h? s U kj., FRED L. METTLER and, IN THE COURT OF COMMON PLEAS OF THERESA J. METTLER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2004 - 4919 CIVIL TERM MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT CIVIL ACTION-LAW COMMUNITY, Defendants JURY TRIAL DEMANDED TO: Mahlon N. Zimmerman c/o J. Dwight Yoder, Esquire Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, Pennsylvania 17602 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Preliminary Objections to the Counterclaim or a default judgment may be entered against you. O'BRIEN, BARIC & SCHERER Robert L. O'Brien, Esquire I. D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 FRED L. METTLER and, THERESA J. METTLER Plaintiffs V. MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT COMMUNITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 4919 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTION TO COUNTERCLAIMS - INSUFFICIENT SPECIFICITY 37. The Plaintiffs aver that the Defendant's broad assertions lack sufficient specificity to formulate a response. 38. The Plaintiffs aver that the Defendant's broad assertions lack sufficient specificity to formulate a response. INSUFFICIENT SPECIFICITY AND DEMURRER TO COUNTERCLAIM - COUNT I 39. Plaintiffs incorporate their averments and prior responses herein. 40. The Plaintiffs aver that the Defendant's broad assertions lack sufficient specificity to formulate a response. Pennsylvania courts have held that in order to support a claim for tortious interference with a contractual or a prospective contractual relation, that four elements must be pleaded: (1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent the prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct. The Defendant has failed to plead any element of the requirements. 41 thru 43 The Plaintiffs incorporate their preliminary objections in paragraph 40 herein. INSUFFICIENT SPECIFICITY AND DEMURRER TO COUNTERCLAIM - COUNT II 44. The Plaintiffs incorporate their preliminary objections to paragraphs 37 thru 43 herein. 45. Pursuant to 42 Pa. C. S. A. Section 8343, the Defendant has the burden to state the defamatory content of the communication, its publication, its application to the Defendant, the understanding of the recipient of its defamatory meaning, the understanding of the recipient of its intention to be applied to the Defendant, special harm resulting to the Defendant by the publication and whether the Plaintiffs abused a conditionally privileged occasion. The Defendant has failed to properly plead the elements of the alleged claim. The Plaintiffs further aver that the Defendant's broad assertions lack sufficient specificity to formulate a response. 46. Pursuant to 42 Pa. C. S. A. Section 8343, the Defendant has the burden to state the defamatory content of the communication, its publication, its application to the Defendant, the understanding of the recipient of its defamatory meaning, the understanding of the recipient of its intention to be applied to the Defendant, special harm resulting to the Defendant by the publication and whether the Plaintiffs abused a conditionally privileged occasion. The Defendant has failed to properly plead the conditionally privileged occasion. The Defendant has failed to properly plead the elements of the alleged claim. The Plaintiffs aver that the Defendant's broad assertions lack sufficient specificity to formulate a response. Wherefore, Plaintiffs respectfully request that the Defendants claims be dismissed. Respectfully submitted, O'BRIEN, BARIC & SCHERER Robert L. O'Brien, Esquire I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Preliminary Objections to Counterclaims are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities. DATE: ??C S? 0? or V I l ! Fred L. Mettler VERIFICATION The statements in the foregoing Preliminary Objections to Counterclaims are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities. -q/ I DATE: S/D 5 c?j % ?rf[L?Jc Theresa J. Mettler V f?1 r? r? v v7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW FRED L. METTLER and THERESA J. METTLER, Plaintiffs V. No. 2004-4919 Civil Term MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT COMMUNITY Defendants : JURY TRIAL DEMANDED NOTICE TO PLEAD To: FRED L. and THERESA J. METTLER c/o Robert L. O'Brien, Esquire O'Brien, Baric, Scherer 17 West South Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days of the date of service hereof or a judgment may be entered against you. Respectfully submitted, GIBBEL, KRAYBILL & HESS By: J. Di t Yod Atto>lnews for ?efendant 4I am Orange Street caster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #81985 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW FRED L. METTLER and THERESA J. METTLER, Plaintiffs V. No. 2004-4919 Civil Term MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT COMMUNITY, Defendants JURY TRIAL DEMANDED DEFENDANT'S AMENDED ANSWER AND NEW MATTER Defendant, Mahlon N. Zimmerman, by and through his attorney, Gibbet, Kraybill & Hess hereby respond to Plaintiffs' Complaint by filing this Amended Answer and New Matter, and in support thereof state as follows: 1. Admitted. 2. Admitted and Denied. It is admitted only that Plaintiff named Mahlon N. Zimmerman t/a Country Manor Adult Community as a defendant in this matter. It is denied that Plaintiffs have a valid claim against the named defendant. 3. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and therefore it is denied. 4. Denied as stated. In that this averment refers to a written document which speaks for itself, any characterization of the document is denied. Defendant specifically denies that it was ever represented to Plaintiffs that the model home they purchased was a "modular" home. Rather, Defendant at all time referred to the home as a "manufactured" home or a "doublewide", which accurately reflected the type of home purchased by Plaintiffs. 5. Admitted and Denied. It is admitted only that Plaintiffs met with Todd Swan. All other allegations are denied because there is no date and time stated for the meeting. Defendant denies that any inaccurate representations were ever made to Plaintiffs. 6. Denied. Defendant specifically denies that Mr. Swan or any other individual associated with Defendant ever stated that the model home was a "modular" home. These allegations also are denied because without stating the date and time of the alleged conversation, Defendant is unable to respond as to what actually was stated. 7. Denied. It is denied that Defendant made any inaccurate representations. At no time did Defendant ever represent to Plaintiffs that the home they were purchasing was manufactured by a company called Hallmark Homes, Inc. It is further denied that Plaintiffs relied on any representations that the model home they were purchasing was manufactured by Hallmark Homes, Inc. and was a modular home because no such representations were ever made. Quite to the contrary, the Plaintiffs understood and knew that the model home was manufactured by Marlette (model 3266) and was a doublewide manufactured home. For purposes of simply identifying different styles and layouts of homes, Defendant had used generic reference names within the development (Constitution, Hallmark and Rosewood). These were all internal names and in no way referred to any type of manufacturer of a home and never referred to Hallmark Homes, Inc. 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the accuracy of the web site for Hallmark Homes, Inc. set forth in this averment and therefore it is denied. It is specifically denied that Plaintiffs ever relied upon the representations made on the web site for Hallmark Homes, hic. (a company which Defendant never heard about until Plaintiffs filed their complaint). By way of 2 further response, this print out is from a website for Hallmark Homes, Inc. and not for the Defendant and had absolutely no bearing on the transaction between Plaintiffs and Defendant. Defendant never represented that the homes were manufactured by Hallmark Homes, Inc.; quite to the contrary, the agreement attached to Plaintiffs Complaint specifically states the home is a Marlette Model 3266. 9. Denied as stated. Because Plaintiffs have failed to state whom made the representation, when it was made and exactly what was said, Defendant is unable to respond and therefore this averment is denied. Defendant denies every misrepresenting the condition of the house. Moreover, Plaintiffs had numerous opportunities to inspect the house before deciding to purchase it and, in fact, did inspect the house. 10. Denied. As set forth above, it is denied that Defendant made any representations that Hallmark Homes, Inc. was building the homes or that it was a modular home; therefore Plaintiffs could not have relied on such representations. 11. Admitted and Denied. It is admitted only that Plaintiffs took possession of the house. The remainder of this averment is denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, it is denied that Plaintiffs performed their terms of the contract. 12. A. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth as to what Plaintiffs discovered and therefore it is denied. B. Denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, Defendant denies that the site improvements were constructed in a negligent manner. 3 C. Denied. Without specific allegations of the "other deficiencies" Defendant is unable to respond and therefore this allegation is denied. COUNT 1- UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 13. Defendant incorporates its responses to paragraphs 1 through 12 as if fully set forth herein. 14. Denied as a conclusion of taw to which no response is necessary. 15. Denied as a conclusion of law to which no response is necessary. It is specifically denied that Plaintiffs are entitled to recover any damages. 16. Denied. Defendant denies that Plaintiffs are entitled to recover the alleged damages or that these damages were ever incurred. WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that the Court award Defendant his costs and attorney fees for defending this frivolous action. COUNT 2 - MISREPRESENTATION 17. Defendant incorporates its responses to paragraphs 1 through 16 as if fully set forth herein. 18. Denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, Defendant denies ever representing that the model home was a "modular" home. Plaintiffs at all times knew it was a double wide home constructed by Marlette. 19. Denied as a conclusion of law to which no response is necessary. To the extent a response is necessary, Defendant denies ever representing that the model home was a "modular" 4 home. It was disclosed to Plaintiffs that the model home was a manufactured home built by Marlette. 20. Denied as a conclusion of law to which no response is necessary. It is specifically denied that Defendant and/or his agent made representations that were untrue; it is denied that any inaccurate representations were material in inducing the Plaintiffs to purchase the home; and it is denied that the Plaintiffs relied on any untrue representations. It also is denied that Plaintiffs' had any injury that was proximately caused by the reliance. 21. Denied. Defendant denies that Plaintiffs are entitled to recover the alleged damages or that these damages were ever incurred. WHEREFORE, Defendant respectfully requests that Plaintiffs' Complaint be dismissed with prejudice and that the Court award Defendant his costs and attorney fees for defending this action. NEW MATTER Wherefore, Defendant incorporates by reference its prior response and hereby avers the following new matter: 22. At all times Defendant accurately represented the manufacturer, type and condition of the model home that Plaintiffs purchased. 23. Defendant never stated that the model home sold to the Plaintiffs had been manufactured by Hallmark Homes, Inc. 24. At all times Defendant responded promptly and in a reasonable manner to all of Plaintiffs' many complaints. 25. Plaintiffs fully inspected the house before purchasing it and agreed to purchase it "as is." 5 26. Plaintiffs knew that the model home they purchased was a double wide. 27. Plaintiffs have failed to state a claim upon which relief may be granted. 28. Plaintiffs' claims arise out of and are based upon the contract between the Plaintiffs and Defendant and therefore are barred by the gist of the action doctrine. 29. Plaintiffs' claims are barred by the statute of limitations. 30. Plaintiffs' claims are barred by the doctrine of accord and satisfaction. 31. Plaintiffs request for rescission is an equitable remedy that is barred by the doctrine of unclean hands, laches, estoppel, waiver and the availability of an adequate remedy at law. 32. To the extent Plaintiffs incurred any damages, Plaintiffs were contributory negligent and are completely or partially responsible for their own damages. 33. To the extent Plaintiffs incurred any damages, Plaintiffs failed to mitigate their damages. 34. Plaintiffs are not entitled to recover their attorney's fees and costs under their claims for fraud and / or misrepresentation. 35. Plaintiffs have listed damages that they are not entitled to recover and for which they did not occur. 36. Plaintiffs have failed to state a claim under the Unfair Trade Practices and Consumer Protection Law and are not entitled to any treble damages or an award of attorney's fees. 37. Defendant has withdrawn without prejudice Defendant's Counterclaims against Plaintiffs but reserves the right to refile such claims in the future. 6 GIBBEL, KRAYBILL & HESS By: I for 41 ?Eas4 Orange Street 1 caster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #81985 VERIRCA TION 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.A. Section 4904, relating to unsworn falsification to authorities. Date. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this ?- day of ?2005, served the foregoing document upon the person and in the manner indicated below. Service by facsimile and first class mail, addressed as follows: Robert L. O'Brien, Esquire O'Brien, Baric, Scherer 17 West South Street Carlisle, PA 17013 GIBBEL, KRAYBILL & HESS Atthrn4s for Defendant 4 East Orange Street Lancaster, PA 17602 (717) 291-1700 Sup. Ct. Atty. I.D. #81985 l? r] ?? ' `J ?(1 Zl _, 'r ?. _ :M (R ? 7?i1 ?<3 _Hf, l 7^J Cl r- (l`) -. ?_ ?7x ' ' s' C : (,J .i r? '-; -.'. ..I FRED L. METTLER and THERESA J. METTLER Plaintiffs V. MAHLON N. ZIMMERMAN t/a COUNTRY MANOR ADULT (COMMUNITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 4919 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER Plaintiffs, through their counsel, reply as follows: 22. The Plaintiffs' incorporate the allegations of their Complaint. From the very outset the Defendant and his agents represented that the home purchased by the Plaintiffs was a modular home, that it was a model home and had not been occupied and utilized as a residence. 23. The defendant and his agents continually represented that the home was a modular home and referred to it alternatively as being Hallmark and Marlette. After they purchased the home and realized that the home was a double wide, they received information that there was a manufacturer of modular homes called Hallmark and have utilized the sales information of that company to point out the differences between a modular home and a double wide. 24. The Defendant was slow in responding to repairing the problems with the home and at the present time problems still remain. Most of the work that was done was band - aided and not sufficient to repair the problems. 25. This is denied, they discussed the sellers responsibility for correcting problems with the home after the sale and the term "as is" never entered into the conversations with Mr. Swan or Mr. Zimmerman. 26. This is denied, at all relevant times prior to the purchase of the home, the Defendant and his agents represented that the home was a modular home. It was only after Mr. Mettler went into the crawl space, because of water accumulation, that it was discovered that the home was a double wide mobile home. 27. The Defendant states a legal conclusion to which no response is necessary. 28. The Defendant states a legal conclusion to which no response is necessary. 29. The Defendant states a legal conclusion to which no response is necessary. 30. The Defendant states a legal conclusion to which no response is necessary. 31. The Defendant states a legal conclusion to which no response is necessary. 32. The Plaintiffs deny that they were negligent and aver that they were misled and misinformed. 33. Plaintiffs have suffered damages and have mitigated their losses to the fullest extent possible. 34. The Defendant states a legal conclusion to which no response is necessary. 35. The Defendant states a legal conclusion to which no response is necessary. 36. The Defendant states a legal conclusion to which no response is necessary. 37. It is admitted that Defendant has withdrawn his counterclaims. Respectfully submitted, O'BRIEN, BARIC & SCHERER Robert L. O'Brien, Esquire I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Reply To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsifications to authorities. DATE: IIAA Fred L. Mettler VERIFICATION The statements in the foregoing Reply To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to uinsworn falsifications to authorities. DATE: G7 L ! tP2Cd.a_ z2. ?j?L'c'?j Theresa J. Mettler _, ? ?? ? __, G:i ___ ?: vs Case No. 0 14 - L-1 I C( Statement of Intention to Proceed To the Court: Mr 4 Oks. r A t?ef intends to proceed with the above captioned matter. lJ? Print Name Sign Name Date: 2^7 to, Attorney for T ?C( %O-lk ? Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. -77 ; rte- ' CC' David 1n. Bueff Prothonotary XirkS. Sohonage, ESQ? Solicitor i j r? Renee X. Simpson 1" Deputy Prothonotary Irene E. W orrow 2nd 4)eputy Prothonotary Office of the Prothonotary Cumberland County, Pennsylvania V Li " g9l q CIVILTERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 25TH DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE -THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, TA 17013 • (717 240-6195 • Tax (717 240-6573