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HomeMy WebLinkAbout06-07-12IN RE: IN THE COURT OF COMMON PLEAS OF The Estate of CUMBERLAND COUNTY, PENNSYLVANIA Leroy D. Smith, Jr., Deceased ORPHANS' COURT DIVISION NO. 21-12-0227 DECLARATORY JUDGMENT ACTION PETITION UNDER DECLARATORY JUDGMENT ACT TO DECLARE DEED INVALID ..,~ AND NOW, comes James Neff, Administrator of the Estate of Leroy~~~Smith,c Jr., Deceased, by and through his attorney, Michael A. Scherer, Esquire, a ~ =~ ~ ~;~,- respectfully represents as follows: °~~- ~.' 1. No judge has been assigned to this case. y -' ~.ry, t..: 2. The opposing party has been contacted and has not replied and therefor is assumed to oppose this Petition. 3. The Declaratory Judgment Act, 42 Pa.C.S.A. Section 7531, provides that persons interested, as or through an administrator, may have a declaration of rights or legal relations in respect thereto to determine any question arising in the administration of the estate. See 42 Pa.C.S.A. Section 7535(3). 4. The decedent is Leroy D. Smith, Jr., who died on December 12, 2009. 5. The decedent's last residence was 344 Old State Road, Gardners, Cumberland County, Pennsylvania 17324 (hereinafter "real estate"), being parcel number 08-38-2175-018 which the decedent owned at the time of his death. 6. The decedent was preceded in death by his wife, Debra K. Smith, whereupon title to the real estate become vested in the name of the decedent. See decedent's deed which is attached hereto as "E~chibit A." {Tl ~---, ~:~.! .f ':I_l _~ -w; ~-rz ~ _... , ~: r.":: c; -rz --,~5 ~n d ,~.-~ 7. Undersigned counsel intended to take control of the real estate and sell it to pay the decedent's administrative expenses, pay creditors and distribute any remaining sums to the decedent's heirs. 8. Undersigned counsel has been alerted to a deed the purportedly conveys the real estate from the decedent's estate to Nicholas Halkias. A copy of the deed dated October 6, 2011 is attached hereto as "Exhibit B." 9. The conveyance as described in the preceding paragraph of this Petition was fraudulent, and can best be understood by virtue of a letter written to Mr. Halkias by Stephen Tiley, Esquire, which has been attached hereto as "Exhibit C." Attorney Tiley represents the decedent's father's estate, Leroy D. Smith, Senior. 10. Undersigned counsel has written to Mr. Halkias to attempt to resolve this matter, however, Mr. Halkias has not replied. See attached "Exhibit D." WHEREFORE, the Administrator, James Neff, hereby requests that the Court issue a Rule upon Nicholas Halkias, to show cause why the deed to Nicholas Halkias dated October 6, 2011 should not be declared invalid and that title be restored to the decedent, Leroy D. Smith, Jr. Respectfully submitted, BARK SCHERER LLC Mic ael .Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 2#9-6873 VERIFICJATION The statements in the foregoing Petition under Declaratory Judgment Act to Declare Deed Invalid 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: ~-- U~ ~' James Neff 1~1.11T-W~mnlY O~.A, S~Ort Fann, k! W 1900. INnry M~II, Inc„ IMiaN, ~, ~~ji~ ~eeb, MADE TXE 15th day o/ June o/ orlr Lord one lharrsand dine hundred eighty-four (1984). in the year CETWEEN LEROY D. SI171TH and JOYCE M. SMITH, husband and wife, of Dickinson Town- ship (mailing address: R. D. A2, Box 236, Gardners, Pennsylvania 17324), Cumberland County, Pennsylvania, parties of the first part, Grantor s, and LEROY D. SMITH, JR., and DEBRA K. SMITH, husband and wife, of Dickinson Township (mailing address: R. D. Y2, Box 252-A, Gardners, Pennsylvania 17324), Cumberland County, Pennsylvania, parties of the second part, Grantee s; WITNESSETII, that in eonsideratior! o/ One $1.00; Dot[ars, in hand paid, the receipt uherru/ is hereLy acknmvledged, !hr srtid grantors. do hereh1[ grout and convey to the said grantee s ,their heirs and assigns, as tenants by the entireties, f ALL that certain tract of land situate in Dickinson Township, Cumberland !i County, Pennsylvania, bounded and described as follows: +~ BEGINNING at a point in the center of the Old Gettysburg Road,. said point I being 200 feet in a southerly direction along the center of said. road from lend now or iiii formerly of C. E. Murray; thence by land now or formerly of Earl G. Rank, Jr., and wife, South 73 degrees 45 minutes East, 150 feet to a stake; thence by land now ar formerly of Eugene C. Jacoby, South I4 degrees 45 minutes West, 160 feet to a stake; thence by land now or formerly of Earl G. Rank, Jr., and wife, North 73 degrees ~45 minutes West, 150 feet to a point in the center of the Old Gettysburg Road; thence by the center of said road, North 14 degrees 45 minutes East, 160 feet to the Place of BEGINNING. BEING all of the property which Earl G. Rank, Jr., and wife, by deed dated October 24, 1978, and recorded October 24, 1978, in the Office of the Recorder of Deeds in and for Cumberland County at Carlisle, Pennsylvania, in Deed Book "C", Volume 28, Page 646, granted and conveyed to Leroy D. Smith and Joyce M. Smith, husband and wife, Grantors herein. THE W[TH1N Grantees ere the son and daughter-in-law of the within Grantors and therefore this conveyance is exempt from realty transfer taxes im~~jsed by .the Commonwealth of Pennsylvania and Dickinson Township and Carlisle Area School District. f _~ i to :J W F ~ . BOOKS 3fl PACE1O2G "EXHIBIT A" AND the said yraatnrs hereby covenant amd agree that they wiU warrant generally the property hereby conveyed. !N W1TNF,SS WXF,PF,'OF, said yrYtntors hove hrreru+to set their hands and seals the da7t and year Jirxt rtbvvr written. ... ....... ~./..if!ii....r~7~ ........................... SEAL b~tgnto, stalto anD L{tlibett0 1 Leroy D. mith tR•tat µlrt6tntt 0( J l~ ~ ...........................1.....................-......................._..... 3 L J c M.3mith ~~ .................................................................... ............. i6AL I do hereby certify that the precise residence and complete post office address of the within named Grantees is R. D. #2, Box 251-A, Gardners, PA 17924. ~~~ State of Pennsylvania xR. Cwrnty of Cumberland On this, the 15th day of June , 1984 ,before mr, tlar undr,•signed q~icer, pnso>rally appeared Leroy D. Smith and Joyce 11i. Smith, husband and wife, knrnun to me (or satisJaetority proven) to br the prison s ruhvse Warne s are subscribed to the roithiu instrument, a~ul acknvtrlydDrd that they rrccutrd the sarnr for the purposes therein containad. IN WITNESS K'HF.P.F.OF, ! ha•ranh, xrt ,ny lrrtnd and a(lieial seal, • NOTARY vllsuG GRLISLF, Cll HEAlAN000UMY, A u •.'. MY t)QMM19910N EXRRFS A~T 14 YOE7 ............ . ......0__.-°°--................._.. ;. ~•itle o/ Opicer. r BOOKS 3U ~ACE1O27 •~~~.: >:• •- ~('~~ ~~ ~~1~-' - wAA;~tANTY DEED This Deed made the-...~i_day of~c-}u~Cr 201 ] Between LEROY D SMITH dR, AND DEBRA K SMITH, NICHOLAS HALKIAS ='~' 3g • ~ / 75- Ord' (hereinafter called the Grantors), of the one part, and (hereinafter called the Grantee), of the other part, W1t11eSSet.~1 that the said Grantors for and in consideration of the sum of Five Hundred and 00/100 DOLLARS ($500,00) lawful money ofthe United States of America, unto them well and trul id b the said Grantee, at or before the seating and delivery hereof, the receipt whereof is hereby acknowledged, has sold, bequeathed, alienated, transferred, remised, released and quit-claimed, and by these presents does sell, bequeath, transfer, remise, release and quit~taim unto the said Grantee, as sole owner, his heirs and assigns, ALL that certain tract of land located in Dickinson Township, Cumberland County with a house known as 344 Old State Road described as Follows BEGINNING at a point in the center of the Old Gettysburg Road, said point being 200 feet in a southerly direction along the center of said road from land now or formerly of G.E. Murray; thence by land now or formerly of Earl G. Rank, Jr., and wife, South 73 Degrees 45 Minutes East, 150 feet to a stake; thence by land now or formerlyu of Eugene C. Jacoby, South 14 Degrees 45 Minutes West, , 160 feet to a stake; thence by land now or formerly of Earl. G. Rank, Ir., and wife, North 73 degrees 45 minutes West 150 feet to apoint in the center of the Old Gettysburg Road; thence by the center of said road, North 14 degrees 45 minutes East, 160 feet to the Place of BEGINNING. Being the same tract of land deeded to grantors as recorded in Deed Book S30 Page 1026 dated the I5~' day of June 1984. Said grantor Debra K. Smith having deceased on October 4`h 2006 and her will recorded in file 2008-0046 in the register of wills office of Cumberland county, with title then vesting soley to her husband Leroy D. Smith Jr. Leroy D. Smith Jr. having died, and his will probated as recorded in the register of wills in fife number 21-11-1055 naming his son to be Executor of his last will and testimant. "EXHfBIT B" Together Wlth all and singular the tenements, hereditaments and appurtenances, thereunto belonging, or in any wise appertaining, and the reversions, remainders, rents, issues and profits thereof; and also, all the estate, right, tide, interest, property, claim and demand whatsoever as well in law as in equity, of the said party of the frst part, of, in, or to the above-described premises, and every part ~d parcel thereof, with the appurtenances. TO ~]1Ve Gild tO hO~d the said lot or piece of ground described premises together with the appurtenances, unto the said Grantee, his hens and assigns, forever. In Witness Whereof, the party of the first pact has hereunto set her hand and seal. Dated the day and year first above written. SEALED AND DELIVERED OIN THE PRESENCE OF US: {SEAL} Shawn Michael Smith, Executor for the estate Q)f Leroy D. Smith. State of ~1~1UI115~ L~Ii~/u f} ss County of } On this the LP~~day of ~7~t~j~_ 20l 1, before me, the undersigned Notary Public, personally appeared Shawu 11~chael Smith, ]mown to me (or satisfactorit ven to be the name is subscribed to the within instrument, and aclrnowiedged that he executed the same forth purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. _~_ N07ARIAL SEAL Camels J. Manges Notary Public Boro of Carlisle, Cumberland County t `{~ r ` r My Commiss(on Expires June 21, 2014 My comm~ss~on expires l.~,i~ ~( The address of the above-named Grantee is: 4075 Linglestown Rd #244 Iiarrisburg, 7 ~~ J~ '~On beha of the Grantee v 2 ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201130259 Recorded On 11/1/2011 At 12:28 :27 PM * Instrument Type -DEED Invoice Number - 95983 User ID - SW * Grantor -SMITH, LEROY D * Grantee - HALKIAS, NICHOLAS * Customer -JAMES HALKIAS * FEES STATE TRANSFER TAR $5.00 STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $11.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 CARLISLE AREA SCHOOL $2.50 DISTRICT DICKINSON TOWNSHIP $2.50 TOTAL PAID $72.00 * Total Pages - 3 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA is /~ 'S'~ ° RECORDER O~ 1)LFEDS * - lnformatgon denoted by an asterisk may change during the verification process and may not be reflected on Ibis page. 003HAZ( IEI IIIIIIIIII li II I II III II III TaxDB Result I~etai?s DistrictNo 08 Parcel ID 08-38-2175-018. MapSuft"ix HouseNo 344 Direction Street OLD STATE ROAD Ownerl HALKIAS,1`IICHOLAS C/O PropType RT PropDesc LivArea 938 CurLandVal 27900 CurImpVal 22800 CurTotVal 50700 CurPretVal Acreage .55 C1GrnStat TaxEx 1 SaleAmt 500 SaleMo 11 SaleDa 01 SaleCe 20 SaleYr 11 DeedBkPage 201130259 YearBlt 1984 HF File Date HF Approval_Status Page 1 of 1 Detailed Results for Parce108-38-2175-018. in the 2010 Tax Assessment Database http://taxdb.ccpa.net/details.asp?id=08-3 8-2175-018.&dbselect=l 1 /17/2012 FREY ~ TILEY ATTORNEYS-AT-LAW 5 South Hanover Street Carlisle, Pennsylvania 17013 ROBERT M. FREY RETIRED STEPHEN D. TILEY ROBERT G. FREY November 14, 2011 Mr. Nicholas Halkias 4075 Linglestown Road, No. 244 Harrisburg, PA 17112 Re: Property of Leroy Smith, Jr. Estate of Leroy D. Smith, Sr. Cumberland County Parcel No. 08-38-2175-018 344 Old State Road Dickinson Township Cumb. Cty., PA Dear Mr. Halkias: ~ ~ , ~~~ TELEPHONE (717) 243-5838 FACSIMILE {717) 24ki-6441 I represent the estate of Leroy D. Smith, Sr. It has come to my attention that you accepted a deed recorded at Instrument No. 2011-30259 for the above referenced property. That deed purports to be from the estate of Leroy D. Smith, Jr., although the signature block is by Shaw Michael Smith, Executor of the estate of Leroy D. Smith (no senior or junior). More importantly, the first page of that deed references an estate filed to Cumberland County No. 21-11-1055. This is not the estate of Leroy D. Smith, Jr. This is the estate of his father, Leroy D. Smith, Sr. There was a typographical error on the original Letters Testamentary that indicated Jr., rather than Sr., however that error did not exist on the Petition as filed. To my knowledge there is no estate filed for Leroy D, Smith, Jr. Moreover, the Petition for Letters Testamentary was not filed, and Letters Testamentary were not issued, until October 7, 2011, the day after the date of your purported deed. In addition, Letters Testamentary in theestate of Leroy Smith, Sr., were issued to his two surviving sons, Michael E. Srlnith and Jeffrey L. Smith, not his grandson Shawn Michael Smith. "EXHIBIT C" Mr. Nicholas Kalkias Re: Property of Lerov Smith, Jr•. Estate of Leroy D. SmitlT, Sr. Cumberland County Parcel No. 08-38-2175-018 344 Old State Road Dickinson Township Cumb. Cty., PA November 14, 2011 Page 2 Frey and Tiley Attorneys At-Law From my discussions with Michael and Jeffrey Smith, I note that Leroy D, Smith, Jr., is survived by a son, Shawn, a son Scott, and a granddaughter Paige, who, to my client's knowledge, is the sole heir of Jesse Smith, who was a third child of Leroy D. Smith, Jr. I believe that your deed is ay best, defective. In order to clarify the recorded record, that the reference in the deed to Estate File No. 21-11-1055 is in error, a copy of this letter will be recorded in the Register of Wills Office in the Leroy D. Smith, Sr., file. Sincerely yours, ~~ '~v~ Stephen D. Tiley SDT/tl cc: Mr. Michael E. Smith Mr. Jeffrey L. Smith r BARK Attorneys at Law S CHERER LLC David A. Banc Michael A. Scherer Tricia D. Naylor Bret P. Shaffer 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 (717) 249-5755 -Fax mschererQbaricscherer.com April 18, 2012 Nicholas Halkias Nicholas Halkias 4075 Linglestown Road, No. 244 344 Old State Road Harrisburg, Pennsylvania 17112 Gardners, Pennsylvania 17324 RE: Real Estate of Leroy D. Sm~h, Jr. 344 Old State Road, Gardners, PA 17324 Dear Mr. Halkias: I am the attorney for the Estate of Leroy D. Smith, Jr I am in possession of Attorney Tiley's letter to you dated November 14, 2011, wherein he informs you of the problems with the manner in which you attempted to obtai title to the real estate located at 344 Old State R©ad. That real estate was the only asse~in Mr. Smith's estate, and I intend for the estate to sell it to raise funds to pay Mr. Smith's debts and distribute the remainder to his heirs. Kindly contact my office to let me know whether the real estate is presently occupied and if you are going to agree to deed your interest in the real estate back to the estate voluntarily. If not, I will begin the procedure to regain clear title to the property through the Courts. Thank you for your anticipated cooperation. Very truly yours, MAS/jl cc: s Neff File ~ mas.dirlgenlitlneff/halkias.ltr BARK SCHERER LLC ~i'V Mich I A. Scherer "EXHIBIT D" CERTIFICATE OF SERVICE I hereby certify that on June 6, 2012, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of the Petition For Declaratory Judgment, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Nicholas Halkias Nicholas Halkias 4075 Linglestown Road, No. 244 344 Old State Road Harrisburg, Pennsylvania 17112 Gardners, Pennsylvania 17324 ~' J f . Lindsa