Loading...
HomeMy WebLinkAbout04-5854L MILLARD T. ILGENFRITZ, JR. and : IN THE COURT OF COMMON PLEAS OF SANDRA W. ILGENFRITZ, : CUMBERLAND COUNTY, PENNSYLVANIA Husband and Wife, 1018 Rockledge Drive Carlisle, PA 17013 Plaintiffs V. :No. 2004 - 5? 5 CIVIL TERM EDWARD F. KESSLER and RUTH C. KESSLER, Husband and Wife, Defendants. : CIVIL ACTION JURY TRIAL DEMANDED PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO CURTIS R. LONG, PROTHONOTARY: Please issue a Writ of Summons against the Defendants, Edward F. Kessler and Ruth C. Kessler, and enter our firm's appearance on behalf of the plaintiffs, Millard T. Ilgenfritz, Jr. and Sandra W. Ilgenfritz. Please have the Sheriff serve the Defendants at the following address: EDWARD F. KESSLER and RUTH C. KESSLER 42 TURNBRIDGE LANE CARLISLE, PA 17013 Respectfully submitted, IRWIN & McKNIGHT //ff By: Douglas . Miller, Esquire Supreme Court I.D. No. 83776 Matthew A. McKnight, Esquire Supreme Court I.D. No.: 93010 60 West Pomfret Street, Carlisle, PA 17013 November 19, 2004 (717) 249-2353 To: Edward F. Kessler and Ruth C. Kessler 42 Turnbridge Lane Carlisle, PA 17013 You are hereby notified that Millard T. Ilgenfritz, Jr. and Sandra W. Ilgenfritz, Plaintiffs, have commenced an action against you which you are required to defend or a default judgment may be entered against you. ?')? t Date: 2004 PROT: JO OTAR By: -DE TY ? _?:-- ?.? fl .--? ' ? ??'? ?-' 1 ? ?? - ;?.?:. ?? ? t„ra -? f' -; L? ?' ,? ° ` - rs s cJ\ MILLARD T. ILGENFRITZ, JR. and : IN THE COURT OF COMMON PLEAS OF SANDRA W. ILGENFRITZ, Husband : CUMBERLAND COUNTY, PENNSYLVANIA and Wife, Plaintiffs V. : No. 2004 - 5854 CIVIL TERM EDWARD F. KESSLER and : CIVIL ACTION RUTH C. KESSLER, Husband and Wife, : Defendants. : JURY TRIAL DEMANDED NOTICE TO DEFEND 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, order and notice are served, by entering a written appearance personally or by attorney and by filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. MILLARD T. ILGENFRITZ, JR. and : IN THE COURT OF COMMON PLEAS OF SANDRA W. ILGENFRITZ, Husband : CUMBERLAND COUNTY, PENNSYLVANIA and Wife, Plaintiffs V. : No. 2004 - 5854 CIVIL TERM EDWARD F. KESSLER and : CIVIL ACTION RUTH C. KESSLER, Husband and Wife, : Defendants. : JURY TRIAL DEMANDED COMPLAINT AND NOW COMES the Plaintiffs, Millard T. and Sandra W. Ilgenfritz by and through their attorneys, Irwin & McKnight, to make the following Complaint and in support thereof avers as follows: 1. The Plaintiffs, Millard T. and Sandra W. Ilgenfritz, are adult individuals who are principally reside at 1018 Rockledge Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. The Defendants, Edward F. and Ruth C. Kessler, are adult individuals principally reside at 42 Tunbridge Lane, Carlisle, Cumberland County, Pennsylvania 17013. 3. Plaintiffs' principal residence is also known as Lot 32 of the Pleasant View Estates subdivision and has a tax parcel designation of 40-23-0602-018. 4. Defendants own the vacant parcel of land known as Lot 31 of the Pleasant View Estates subdivision which also fronts Rockledge Drive and has a tax parcel designation of 40-23- 0606-017 (Lot 31 is hereinafter referred to as the "Kessler Property"). 5. Lot 31 owned by Defendants is directly adjacent to Lot 32, the Plaintiffs' principal residence (Lot 32 is hereinafter referred to as the "Ilgenfritz Property"). 6. On or about April 9, 2004, Plaintiffs and Defendants entered into an Agreement for Sale of Land whereby Plaintiffs would purchase a twenty (20) foot wide portion of the Kessler Property, which would be measured from the existing pin separating Lot 31 and Lot 32. A true and correct copy of said Agreement for Sale of Land, including the referenced lot drawing, is attached hereto as Exhibit "A". 7. Upon the Plaintiffs' information and belief, the pins separating the Ilgenfritz Property and Kessler Property in the Pleasant View Estates subdivision have been in place since 1954, the date indicated on the drawing included as part of Exhibit "A." 8. The Plaintiffs purchased their property on or about September 1, 1968. 9. The Plaintiffs' one-story brick ranch style house and driveway were constructed and have existed on their property since 1968. 10. Pursuant to the Agreement attached as Exhibit "A," the Plaintiffs agreed to purchase the above-referenced twenty (20) foot strip of land for the purchase price of Six Thousand Two Hundred Sixty and no/100 ($6,260.00) Dollars, plus half of the total costs associated with subdividing the Kessler Property. 11. Pursuant to the Agreement attached as Exhibit "A," Defendants were to subdivide a similar twenty (20) foot strip of land on the opposite side of the Kessler Property and construct one (1) residence on the residue of the Kessler Property. 12. The Agreement specifically provides that the tract of land to be conveyed is as follows: "The lot beginning on West side of Rockledge Dr. at pin between lot 31 (Kessler property) and lot 32 (Ilgenfritz property), thence along Rockledge Dr. in Southerly direction a 2 distance of 20 ft., then in Westerly direction, on a straight line parallel with the present boundary between lots 31 and 32, to the Western boundary of lot 31 (a distance of approximately 230 ft.)." 13. Both Plaintiffs and Defendants were aware of the existence and location of the pin between their properties prior to the execution of the Agreement attached as Exhibit "A." 14. Defendants now believe that the location of the pin is improper and encroaches upon the Kessler Property. 15. As a result, Defendants apparently will agree to convey a twenty (20) foot strip of land from the location where they believe the pin should be located, rather than from the locations where the pin is and has been located for in excess of twenty-one (21) years. A true and correct copy of correspondence dated October 25, 2004, from Defendants' legal counsel is attached hereto and incorporated herein as Exhibit "B." 16. Since the execution of the parties' agreement, Plaintiffs have always been, and now are, ready and willing to comply with the terms and conditions of the Agreement for Sale of Land and to perform all actions agreed upon. 17. Defendants have wholly failed to keep or perform their part of the Agreement for Sale of Land attached hereto as Exhibit "A." 18. As a result of Defendants' wrongful conduct in revoking the parties' agreement, the Plaintiffs have suffered unique damages for which no adequate remedy exists at law. WHEREFORE, the Plaintiffs, Millard T. Ilgenfritz, Jr. and Sandra W. Ilgenfritz, respectfully request that this Honorable Court enter judgment against Defendants and award the following relief: 3 (a) that Defendants be enjoined, preliminarily until final hearing and permanently thereafter, from encumbering or subdividing the property in any way contrary to the parties' Agreement for Sale of Land, and from selling or conveying the twenty (20) foot wide portion subject to that Agreement to any person other than the Plaintiffs; (b) that Defendants be ordered to specifically perform the Agreement for Sale of Land and by good and sufficient deed convey the premises, as identified in said Agreement following subdivision approval to be obtained by Defendants, with marketable title and free of all encumbrances to the Plaintiffs in fee simple; (c) that Defendants be ordered to legally sign, acknowledge and deliver the deed to Plaintiffs in proper legal form, and accept in consideration thereof the agreed purchase price; (d) that Plaintiffs be awarded their costs; and (e) such other general and further relief as this Court may deem just and proper. Respectfully submitted, IRWIN & McKNIGHT Dated: December 22, 2004 By: - ZU& Douglas G. Miller, Esquire Supreme Court I.D. # 83776 Matthew A. McKnight, Esquire Supreme Court I.D. # 93010 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiffs Millard T. and Sandra W. Ilgenfritz 4 VERIFICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. fr LARD T. ILGE IT , J . SANDRA W. ILGENF'R,TZ Date: 12/22/04 EXHIBIT A ' z c4%? .Z-?Lp ' acs- a v z? ?- °.1- i D.. / f y, - ??.-.r.?. ,??u-P??"of?cZtt'?--C,G@tiQ.- ???L???r• CQ? r ? ? JJ? 7 6u ??cc-vC?o` --?3.??t..c.-¢:c??•?u.- c?'T.- -?'-Q? ,.?.c..,?.-?,%,g...-?o-? 3 f -51-e life rs u _ fir, t Cry ,,_ f , u -f C• y • ti?+ i f t K r /J 1 f f u. zoo sa : E X. . Q !o . E . it's, A ? J 20? /. n / _ / /c s-c r 0 o-4 O 4 ? • 8 ? -a N ? e -- . rh N 20 1.1A 233r 70' v+ (A b ?'t 'v AA O U )U7 N O`L L Y 5 P D-L `AJG's 2. C k. .SO? n Q M A C. 1P A V. e' Q 1 Sc" D o a O r.. rn u r . m Z it p.d t` U O A ``' ID m rat t Law Offices D'BRIE , B, I RIC & SCII F_ RER 19 Guest South Street Carlisle, Pennsylvania I1-013 Robert L. O'Brien David A. Boric ,Michael,-. Scherer (717) 249-6873 Far (717) 249-57>j direct: dbartc?`aobslaw. com October 25, 2004 Roger Irwin, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 RE: Kessler/11Renfritz Dear Roger: I met with you last week to review the results of the surveys showing the rotation of the Ilgenfritz property. The survey attached to the April 9, 2004 agreement entered into by the parties identifies the specific location of the twenty (20) foot wide strip of land to be conveyed. The most recent survey discovered the driveway of the Ilgenfritz' is actually six plus feet over the boundary line at Rockledge Drive. Apparently, your clients want the twenty (20) foot wide strip to be measured from the edge of their existing driveway. This change would constitute a condition on the ground not known at the time of signing which, as I pointed out to you in oar meeting, would trigger the release provisions of the Agreement of Sale. The Kesslers have attempted to move forward with this transaction as written, that is, sale of a twenty (20) foot wide strip from the pin as referenced in the plan attached to the agreement, however, your clients have not agreed to such a transfer. At this point, we are notifying you that the release language has been triggered and the conveyance will not occur. The remaining issue is the survey costs incurred and I would appreciate hearing from you regarding a proposed allocation of those costs,. Very truly yours, DUBRIE:N, BA C & JSRER r DAB/ta David A. Baric, Esquire cc: Mr. and Mrs. Kessler CERTIFICATE OF SER`'ICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DAVID A. BARIC, ESQUIRE; O'BRIEN, BARIC & SCHERER 19 WEST SOUTH STREET CARLISLE, PA 17013 Date: December ?, 2004 IRWIN & McKNIGHT Douglas t. Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 ?7 n. ? i r? ?. r; f'i'7 ?. _ MILLARD T. ILGENFRITZ, JR. and : IN THE COURT OF COMMON PLEAS OF SANDRA W. ILGENFRITZ, Husband : CUMBERLAND COUNTY, PENNSYLVANIA and Wife, Plaintiffs V. : No. 2004 - 5854 CIVIL TERM EDWARD F. KESSLER and : CIVIL ACTION RUTH C. KESSLER, Husband and Wife, : Defendants. : JURY TRIAL DEMANDED PRAECIPE TO ENTER LIS PENDENS TO THE PROTHONOTARY: Please index the above-captioned action as a lis pendens against the following real property: OWNERS: Edward F. Kessler (Cumberland County Deed Book 262, Page 1028) Ruth C. Kessler PROPERTY: Lot No. 31 on Plan of Pleasant View Estates in Plan Book 6, Page 1 South Middleton Township Cumberland County, Pennsylvania Tax Parcel # 40-23-0602-017 I hereby certify that this action involves the specific enforcement of an agreement to purchase a portion of the above-referenced property, and thereby affects the title to or other interest in said property. Respectfully submitted, IRWIN & McKNIGHT Dated: December 22, 2004 By: ?4 1 wte, Douglas . Miller, Esquire Supreme ourt I.D. # 83776 Matthew A. McKnight, Esquire Supreme Court I.D. # 93010 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DAVID A. BARIC, ESQUIRE O'BRIEN, BARIC & SCHERER 19 WEST SOUTH STREET CARLISLE, PA 17013 Date: December 22, 2004 IRWIN & McKNIGHT ?>? /v fi fe& Douglas . Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 --4-- V? ell- I r1 ' CL- C `v t MILLARD T. ILGENFRITZ, JR. and SANDRA W. ILGENFRITZ, 1018 Rockledge Drive Carlisle, Pennsylvania 17013 Plaintiffs V. EDWARD F. KESSLER and RUTH C. KESSLER, husband and wife, Defendants TO: Millard T. Ilgenfritz Sandra W. Ilgenfritz c/o Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-5854 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified that you have twenty (20) days in which to plead to the enclosed Answer, New Matter and Counterclaim or a Default Judgment may be ered against you. OBRIEN, ? RJfy RER d David A. Baric, Esquire Date: I.D.#44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 MILLARD T. ILGENFRITZ, JR. and SANDRA W. ILGENFRITZ, 1018 Rockledge Drive Carlisle, Pennsylvania 17013 Plaintiffs V. EDWARD F. KESSLER and RUTH C. KESSLER, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-5854 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED ANSWER, NEW MATTER AND COUNTERCLAIM NOW, come Defendants, Edward F. Kessler and Ruth C. Kessler ("Kesslers") by and through their attorneys, O'BRIEN, BARIC & SCHERER, and file the within Answer, New Matter and Counterclaim and, in support thereof, set forth the following: ANSWER I . After reasonable investigation, Kesslers are within information or knowledge sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 2. Admitted. 3. It is admitted only that the tax parcel number for the property known as 1018 Rockledge Drive, Carlisle, Cumberland County, is as set forth by Plaintiffs. The remaining averments are denied. To the contrary, Plaintiffs' property is only a portion of Lot 32 of the Pleasant View Estates subdivision. Further, Kesslers are without knowledge or information sufficient to form a belief as to the truth of the remaining averments and they are, therefore, denied. 4. Admitted in part and denied in part. It is admitted the Kesslers own that property known as Lot 31 of the Pleasant View Estates as referenced on the survey of record with the Recorder of Deeds of Cumberland County at Plan Book 6, p. 1. It is further admitted the tax parcel number for Lot 31 as referenced in the Plan Book is 40-23-0606-017. It is denied that the property dimensions or boundaries are accurately portrayed by any tax map. Admitted in part and denied in part. It is admitted only that Lot 31 is owned by the Kesslers and is adjacent to 1018 Rockledge Drive, Carlisle, Cumberland County, Pennsylvania. It is denied that Lot 32 is the Plaintiffs residence or is correctly identified as being the "Ilgenfritz Property". To the contrary, 1018 Rockledge Drive is only a portion of Lot 32 of the Pleasant View Estates subdivision. Denied. To the extent these averments seek to state the Agreement of Sale, the document is a writing which speaks for itself. Further, the Agreement of Sale incorporated by reference a Plan which indicates the exact boundaries and location of the land to be sold. Denied. To the contrary, Millard Ilgenfritz has admitted that he placed the pin as it now sits subsequent to his purchase of a portion of Lot 32. Survey studies undertaken since execution of the Agreement of Sale have revealed the pin as reflected on the Plan sits approximately six (6) feet to the right of the existing pin facing the lots from Rockledge Drive and is under the paved driveway of Ilgenfritz. 8. After reasonable investigation, the Kesslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 9. After reasonable investigation, the Kesslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 10. Denied. To the extent these averments seek to state the Agreement of Sale, the document is a writing which speaks for itself. 11. Denied. To the extent these averments seek to state the Agreement of Sale, the document is a writing which speaks for itself. 12. Denied as stated. To the contrary, the Agreement specifically identifies the property to be conveyed on the Plan which is attached to the Agreement. The Plan identifies the strip of land as beginning at the pin identified on the Plan. 13. Denied. To the contrary, the parties mistakenly believed the pin, as present on the ground, was in conformance with the pin identified in the Plan attached to the Agreement. 14. Denied as stated. To the contrary, the pin as placed by Ilgenfritz is improper and does encroach upon the Kessler's property. 15. Denied. To the contrary, the referenced correspondence points out to counsel for Plaintiffs that the contract was terminated by its very terms. Further, it is denied that the pin as extent on the ground has been so located for a period of twenty-one (21) years. 16. Denied. To the contrary, Plaintiffs have refused to comply with the terms of the Agreement. Attached hereto as Exhibit "C"and incorporated by reference is a letter from counsel for Plaintiffs dated December 23, 2004 wherein Plaintiffs, through their counsel, refuse to assume costs associated with surveying of the property which is necessary to effectuate any transfer. 17. Denied. To the contrary, the Kesslers have no obligation to complete the transaction. Moreover, it is Plaintiffs who have wilfully and wrongly failed to perform. 18. Denied. To the contrary, Plaintiffs have suffered no damage and have expressly released the Kesslers from any and all claims which the Plaintiffs could assert. WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiffs together with costs and expenses. NEW MATTER 19. The Ilgenfritz property is a lot previously subdivided from the original filed Pleasant View Estates Subdivision Plan and consists of approximately one-half of the original lot as referenced on the Plan. 20. When the subdivision was made which created the Ilgenfritz property, the surveyor erred and rotated the lot moving the boundary line between the portion of Lot 32 purchased by Ilgenfritz onto what is now the Kessler property. 21. Subsequent to the execution of the Agreement: for Sale of Land, a surveyor met with Millard Ilgenfritz and counsel for the Ilgenfritz' and explained the error made in the prior survey. 22. The Agreement of Sale specifically identifies the land to be conveyed in the Plan attached to the Agreement. The point at which the description begins, is measured as being 229.44 feet from the edge of the Kessler property along Rockledge Drive at the border of the Kessler property with the property of the Cooks. 23. The pin placed by Ilgenfritz on the edge of his property on Rockledge Drive bordering the Kessler property is not 229.44 feet from the edge of the Kessler property at the border with the Cook property. 24. At the time of execution of the Agreement, there was a mutual mistake of a material fact, that is, the parties believed the pin as placed by Ilgenfritz was at the boundary of the lots as referenced on the Plan. 25. The Agreement provides that Ilgenfritz shall pay "... one-half ('/z) the total cost of subdivision action. Such cost may include but may not be limited to Surveyor cost, township fees, County fees and transfer tax." 26. The Plaintiffs have failed and refused to pay the costs required by the Agreement. 27. By signing the Agreement, Plaintiffs expressly recognized and accepted the proper boundary line between the lots as noted on the Plan. 28. Plaintiffs seek to unilaterally amend the Agreement by changing the description of the property to be conveyed. 24. The movement and placement of the pin on the ground by Millard Ilgenfritz at a location different from the point referenced on the Plan made the performance of the Agreement impossible. 30. The Agreement releases the Kesslers from any and all claims that "may arise from items or conditions on this lot of ground that may not be known at this time." It is averred that the deviation of the pin on the ground from that point referenced on the Plan triggers this release provision. 31. Performance of the Agreement was made impossible by the claims of Ilgenfritz to ownership of a segment of the land by adverse possession. The Kesslers cannot convey "good title" to Ilgenfritz for land which Ilgenfritz asserts a colorable claim of adverse possession. WHEREFORE, Defendants respectfully request that judgment be entered in their favor and against Plaintiffs together with costs and expenses. COUNTERCLAIM RESCISSION 32. Defendants incorporate by reference their answers to paragraphs one through eighteen and their New Matter as set forth at paragraphs nineteen through thirty-one as though set forth at length. 33. At the time of execution of the Agreement, the parties mistakenly believe the pin extant on the ground was at the juncture of the properties as reflected on the Plan attached to the Agreement. 34. Alternatively, Ilgenfritz was aware that he had placed the pin and Ilgenfritz further did not know whether his pin placement was in conformance with the Pleasant View Estates Subdivision Plan. 35. Ilgenfritz has refused to pay one-half of the survey costs as related in the correspondence of counsel for Ilgenfritz appended hereto as Exhibit "C". 36. A failure of a party to perform under a contract permits the other party to rescind the contract. 37. A mutual mistake of a material fact permits rescission of a contract. 38. A party to a contract is in breach of the contract when that party makes performance of the contract impossible. 39. The actions of Ilgenfritz in moving the pin rendered performance of the contract impossible. 40. By so making performance of the contract impossible, the Kesslers are entitled to rescind the contract. 41. Ilgenfritz has breached the Agreement by failing and refusing to pay one-half of the surveyor costs. 42. The survey costs incurred to the date hereof total $3,000.00. 43. As a direct and proximate result of the breach by Ilgenfritz, Defendants will incur damages of $1,500.00 representing one-half of the survey costs. WHEREFORE, Defendants respectfully requests this Court enter judgment for Defendants and against Plaintiffs rescinding the Agreement and awarding Defendants costs and expenses and one-half of the surveyors fees in the amount of $1,500.00. Respectfully submitted, ;i:R]'C & U r David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Defendants dab. d i r/realesta te/kessler/ilgen fritz/a nswer& n ewm a tier. pld VERIFICATION The statements in the foregoing Answer, New Matter and Counterclaim are based upon information which has been assembled by our attorney in this litigation. The language of the statements is not our own. We have read the statements; and to the extent that they are based upon information which we have given to our counsel, they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsifications to authorities. DATE: Edward F. Kessler Ruth C. Kessler LAW OFFICES IRWIN & McKNIGHT WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET HAROLD S. IRWIN (1925-1977) ROGER B. IRWIN CARLISLE, PENNSYLVANIA 17019-3222 HAROLD S. IRWIN, 3R. 0954-1986) MARCUS A. McKNIGHT. III IRWIN. IRWIN&IRWIN (1956-1986) DOUGLAS G. MILLER (717) 249-2353 IRWIN. IRWIN & M[KNIGHT (1986-1994) MATTHEW A. McKNIGHT FAX (717) 249-6354 IRWIN. McKNIGHT & HUGHES (19W-2003) WWW IMHLAW.COM IRWIN & McKNIGHT (2003- ) December 23, 2004 DAVID A. BARIC, ESQUIRE O'BRIEN, BARIC & SCHERER 19 WEST SOUTH STREET CARLISLE, PA 17013 RE: ILGENFRITZ v. KESSLER Dear Dave: Enclosed please find a certified copy of the Complaint filed in the above-referenced matter. Also enclosed is a time-stamped copy of the Praecipe to Enter Lis Pendens. After discussing the most recent proposal with our clients, they were not agreeable to assuming one-third of the survey expenses. Roger Irwin had only one brief meeting with the surveyor, and Mr. and Mrs. Ilgenfritz did not speak with him at all. Your clients would also benefit the most from the survey, therefore our clients will riot agree to assume the additional costs. Please contact me in the event that you would like to discuss this further, otherwise I will anticipate your prompt reply. Very truly yours, IRWIN & McKNIGHT Douglas G. Miller DGM:tds Enclosure cc: Mr, and Mrs. Millard Ilgenfritz (w/enc) cc: Ed and Ruth Kessler w/Enc. 12/28/04 EXHIBIT "C" CERTIFICATE OF SERVICE I hereby certify that on January 13, 2005, I, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve the Answer, New Matter and Counterclaim, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Douglas Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 David A. Baric, Esquire ? ?_? ? C:` C"- -n <_, ?_ MILLARD T. ILGENFRITZ, JR. and : IN THE COURT OF COMMON PLEAS OF SANDRA W. ILGENFRITZ, Husband : CUMBERLAND COUNTY, PENNSYLVANIA and Wife, Plaintiffs V. :No. 2004 - 5854 CIVIL TERM EDWARD F. KESSLER and : CIVIL ACTION RUTH C. KESSLER, Husband and Wife, : Defendants. : JURY TRIAL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANTS' NEW MATTER AND COUNTERCLAIM AND NOW this ?? day of February, 2005, comes the Plaintiffs, Millard T. Ilgenfritz, Jr, and Sandra W. Ilgenfritz, by and through their attorneys, Irwin & McKnight, and respectfully file this Answer to the Defendants' New Matter and Counterclaim, and in support thereof aver as follows: NEW MATTER 19. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph nineteen (19) so they are therefore specifically denied and strict proof thereof is demanded at trial. 20. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twenty (20) so they are therefore specifically denied and strict proof thereof is demanded at trial. 21. The averments of fact contained in paragraph twenty-one (21) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, a surveyor met briefly with Attorney Roger B. Irwin on one occasion, and did not prove that there was an error made in a prior survey. 22. The Agreement of Sale referenced by Defendants in paragraph twenty-two (22) speaks for itself and therefore no response is required. In the event that a response is required, after reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twenty-two (22) so they are therefore specifically denied and strict proof thereof is demanded at trial. 23. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in paragraph twenty-three (23) so they are therefore specifically denied and strict proof thereof is demanded at trial. 24. The averments contained in paragraph twenty-four (24) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 25. The Agreement of Sale referenced by Defendants in paragraph twenty-five (25) speaks for itself and therefore no response is required. To the extent that a response is required, Defendants have engaged the services of a surveyor to perform services far in excess of those referenced in the Agreement of Sale, including the creation of two (2) building lots on Defendants' property. Therefore, the averments that Plaintiffs agreed to pay one-half ('/z) of the surveyor costs under any and all circumstances are specifically denied and strict proof thereof is demanded at trial. 26. The averments contained in paragraph twenty-six (26) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 27. The averments contained in paragraph twenty-seven (27) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, the 2 parties met at the properties prior to preparing and signing the Agreement of Sale and physically inspected the location of the existing pin and boundaries of the properties. 28. The averments contained in paragraph twenty-eight (28) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 29. The averments contained in paragraph twenty-nine (29) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiffs did not move the existing pin on the edge of their property on Rockledge Drive. 30. The averments contained in paragraph thirty (30) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 31. The averments contained in paragraph thirty-one (31) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter a judgment in their favor and against Defendants in this matter, and award Plaintiffs the relief requested in their Complaint. COUNTERCLAIM 32. The averments of fact contained in the Plaintiffs' Complaint and the Plaintiffs' answers in paragraphs nineteen (19) through thirty-one (31) above are hereby incorporated by reference as if fully set forth below. 3 33. The averments contained in paragraph thirty-three (33) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 34. The averments contained in paragraph thirty-four (34) are specifically denied and strict proof thereof is demanded at trial. 35. Plaintiffs object to the inclusion of the correspondence attached as Exhibit "C" to Defendants' Answer on the grounds that said correspondence was part of settlement negotiations not admissible under Pennsylvania law, and therefore no response is required. Said objection shall be continuing in nature unless explicitly waived by Plaintiffs. To the extent that a response is required to paragraph thirty-five (35) the averments are conclusions of law, and are also specifically denied and strict proof thereof is demanded at trial. 36. The averments contained in paragraph thirty-sir: (36) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any assertion that Plaintiffs have failed to perform, are specifically denied and strict proof thereof is demanded at trial. 37. The averments contained in paragraph thirty-seven (37) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any assertion that there was a mutual mistake, are specifically denied and strict proof thereof is demanded at trial. 38. The averments contained in paragraph thirty-eight (38) are conclusions of law to which no response is required. To the extent that a response is required, the averments, including any assertion that Plaintiffs have breached the Agreement of Sale, are specifically denied and strict proof thereof is demanded at trial. 39. The averments contained in paragraph thirty-nine (39) are conclusions of law to which no response is required. To the extent that a response is required, the averments are 4 specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiffs did not move the existing pin on the edge of their property on Rockledge Drive. 40. The averments contained in paragraph forty (40,1 are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 41. The averments contained in paragraph forty-one (41) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 42. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph forty-two (42) so they are therefore specifically denied and strict proof thereof is demanded at trial 43. The averments contained in paragraph forty-three (43) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter a judgment in their favor and against Defendants in this matter, and award Plaintiffs the relief requested in their Complaint. Respectfully Submitted, IRWIN & McKNIGHT By: iq4-^ Douglas (t. Miller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717)249-2353 Attorney for Plaintiffs, Dated: February 15, 2005 Millard T. Ilgenfritz, Jr., et al. 5 VERIFICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. MI LARD T. ILGE T J SANDRA W. ILCj F I Date: February 3, 2005 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: David A. Baric, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 (Attorney for Defendants) Date: February 15, 2005 IRWIN & McKNIGHT T7 ` /J i& Douglas It. Miller Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Plaintiffs CIL SHERIFF'S RETURN - REGULAR CASE NO: 2004-05854 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ILGENFRITZ MILLARD T JR ET AL VS KESSLER EDWARD F ET AL SGT DAVID ZEIGLER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon KESSLER EDWARD F the DEFENDANT , at 1626:00 HOURS, on the 24th day of November-, 2004 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 by handing to EDWARD CRESSLER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18 . 0 0 .00 .00 10.00 R. Thomas Kline .00 28.00 11/29/2004 MARCUS MCKNIG-3T Sworn and Subscribed to before By: Iz- me this day of A.D. P othonotary Deputy S eri SHERIFF'S RETURN - REGULAR CASE NO: 2004-05854 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ILGENFRITZ MILLARD T JR ET AL VS KESSLER EDWARD F ET AL SGT DAVID ZEIGLER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS KESSLER RUTH C was served upon the DEFENDANT , at 1626:00 HOURS, on the 24th day of November , 2004 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 RUTH C KESSLER by handing to 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this day of C .. p?0 j' A. D. rothonotary So Answers: R. Thomas Kline 11/29/2004 MARCUS MCKNIGHT / By: 7 Deputy Shl e -i_'f f PRAECIPE FOR LISTING CASE FOR (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. ( x ) for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) MILLARD T. ILGENFRITZ, JR. and SANDRA W. ILGENFRITZ, husband and wife 1018 Rockledge Drive Carlisle, Pennsylvania 17013 (x ) Civil Action - Law ( ) Appeal from Arbitration other) (Plaintiff) VS. EDWARD F. KESSLER and RUTH C. KESSLER, husband and wife, The trial list will be called on and (Defendant) VS. Trials commence on Pretrials will be held on (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 5854 Civil Term x-rgcx 2004 Indicate the attorney who will try case for the party who files this praecipe: David A. Baric, Esq., 19 West South Street, Carlisle, PA 17013 Indicate trial counsel for other parties if known: Douglas G. Miller, Esq., 60 West Pomfret Street, Carlisle, PA 17A13 This case is ready for trial. Signed: Print Name: David A. Baric, Esquire Date: April 28, 2005 Attorney for: Edward F. Kessler and Ruth C. Kessler C7 ? Q _ C, cn SJ J ti3 MILLARD T. ILGENFRITZ, JR. AND IN THE COURT OF COMMON PLEAS OF SANDRA W. ILGENFRITZ, Husband CUMBERLAND COUNTY, PENNSYLVANIA and Wife, PLAINTIFFS V. EDWARD F. KESSLER AND RUTH C. KESSLER, Husband and Wife, ; DEFENDANTS 04-5854 CIVIL TERM ORDER OF COURT AND NOW, this ?=::J ? day of May, 2005, IT IS ORDERED that a civil bench trial shall be conducted at 1:30 p.m., Thursday, June 9, 2005, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvagia. - ,.9ouglas G. Miller, Esquire For Plaintiffs 1? -,6avid A. Baric, Esquire For Defendants Court Administrator sal M1S ?? CJ ?' - G 'S1 CJ"? ._; -?f? i7 fT: 1 N T. Cf _„ - W _? - t?J (.r] MILLARD T. ILGENFRITZ, JR. and : IN THE COURT OF COMMON PLEAS OF SANDRA W. ILGENFRITZ, Husband : CUMBERLAND COUNTY, PENNSYLVANIA and Wife, Plaintiffs V. : No. 2004 - 5854 CIVIL TERM EDWARD F. KESSLER and : CIVIL ACTION RUTH C. KESSLER, Husband and Wife, : Defendants. : JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE TO CURTIS R. LONG, PROTHONOTARY: Please mark the above-captioned case settled and discontinued and mark the lis pendens terminated. Respectfully submitted, IRWIN & McKNIGHT Date: June 4, 2007 By: Douglas . Mil er, Esquire Supreme Court ID #83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DAVID A. BARIC, ESQUIRE O'BRIEN, BARIC & SCHERER 19 WEST SOUTH STREET CARLISLE, PA 17013 Date: June 4, 2007 IRWIN & McKNIGHT A. 68 Douglas it. 'ller Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 C? e --' ? ?'-, ? +i?? ?- ' : ' t ?. t; t n r` t" ? ...G ? 1