HomeMy WebLinkAbout05-0973
CHADWICK O. BOGAR,
Plain tiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.2005- cn3
MANN REALTY,
Defendant
: CIVIL ACTION - LAW
NOTICE TO PLEAD
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 (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that
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 Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
717-249-3166
CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v
No. 2005-
CIVIL TERM
MANN REALTY INC.,
Defendant
CIVIL ACTION-LAW
ACTION FOR DECLARATORY JUDGEMENT
Plaintiff, Chadwick O. Bogar, by his Attorneys, Broujos & Gilroy, P.C., sets forth the
following:
1. Plaintiff is Chadwick O. Bogar, an adult individual residing at 101 Hunt Court,
Hummelstown, Dauphin County, Pennsylvania.
2. Defendant, Mann Realty Inc., is a Pennsylvania Corporation with principal offices
located in Lemoyne, Cumberland County, Pennsylvania.
3. On or about September 1, 2003, Plaintiff purchased from Defendant a parcel of real
estate located in Upper Allen Township, Cumberland County, Pennsylvania, referred
to as Lot 6 of Allen Glen Court, and as more particularly described in deed from
Defendant to Plaintiff recorded in the Cumberland County Recorder of Deed's office
in Deed Book 260, Page 3278 (hereinafter referred to as the "Real Estate").
4. The Real Estate is part of a Planned Community known as Allen Glen, and is subject
to various restrictions as set forth in the "Declaration of Allen Glen, a Planned
Community" as recorded in the Cumberland County Recorder of Deeds Office in
Miscellaneous Book 695 page 1524 (hereinafter referred to as the "Declarations").
5. Section 8.04 of the Declarations provides, in summary, that the owner of a lot in Allen
Glen must commence construction of a single family dwelling within 12 months of
initial settlement unless said time frame is extended by the Defendant. Failure to
commence said construction within the time frame would give the Defendant, at it's
option, the ability to repurchase the lot under terms as set forth in the Declarations.
6. Plaintiff and Defendant reached an agreement (hereinafter referred to as the
"Extension Agreement") whereby the Plaintiff's obligation to commence construction
of a single family dwelling on the Real Estate was extended for a period of two years.
7. Plaintiff has attempted to sell the Real Estate to a third party and Defendant has
created a cloud on the title to the Real Estate by virtue of Defendant asserting that
Plaintiff cannot assign the Extension Agreement to a third party upon sale of the lot.
8. The cloud Defendant has created on the title of the Real Estate by its actions in this
matter renders plaintiff unable to sell the Real Estate.
9. A declaration by the Court with respect to Plaintiff's rights to sell the Real Estate to a
third party and such third party's status with respect to Section 8.04 and other
sections of the Declarations is necessary in order to resolve the disputes between the
parties and conclusively determine each partys' respective position relative to Section
8.04 and other sections of the Declarations.
WHEREFORE, Plaintiff requests your Honorable Court to order the following relief:
A. Declare that Plaintiff shall have two years from the date of a frnal decree in
this case to commence construction of a single family dwelling on the Real
Estate.
B. Declare that Plaintiff may sell the Real Estate to a third party and may assign
Extension Agreement to build a single family dwelling to the third party under
such a situation as to not trigger the ability of the defendant to repurchase the
Real Estate under Section 8.04 of the Declarations.
C. Such other relief as the Court deems just and appropriate.
Hubert X. Gilroy,
Broujos & Gilroy, .C.
Attorney for Plai tiff
VERIFICA nON
The undersigned hereby verifies that the statements of fact in the foregoing
Complaint are true and correct to the best of my knowledge, information and belief. I
understand that any false statements therein are subject to the penalties contained in 18 Pa.
C.S.A. ~ 4904, relating to unsworn falsification to authorities.
Dated: Z. III I 0 '5
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adwick O. Bogar
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CHADWICK O. BOGAR
Plaintiff
CIVIL ACTION - LAW
v.
NO. 2005-973
MANN REALTY INC.
Defendant
ANSWER
1. Admitted on information and belief.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. The averments of Paragraph 6 are conclusions oflaw to which no response
is required. To the extent that a response is deemed necessary, such
averments are specifically denied and strict proof thereof is demanded at
the time of trial.
7. The averments of Paragraph 7 are admitted in part based upon information
and belief. It is admitted that Plaintiff attempted to sell real estate to a
third party. The remainder of Paragraph 7 is a conclusion oflaw to which
no response is required. To the extent that a response is deemed
necessary, the averments are specifically denied and strict proof thereof is
demanded at the time of trial. By way offurther answer, Defendant has
done nothing to create a cloud on the title, all parties knowingly entered
into the purchase agreement and Plaintiff, who is an attorney, was fully
aware of the language included therein.
8. Denied. The averments of Paragraph 8 are conclusions of law to which no
response is required. To the extent that a response is deemed necessary,
the averments are specifically denied and strict proof thereof is demanded
at the time of trial. By way offurther answer, Plaintiff is not unable to sell
the real estate, rather he is unable to sell it at the price which he desires.
9. The averments of Paragraph 9 are conclusions oflaw to which no response
is required. To the extent that a response is deemed necessary, the
averments are specifically denied and strict proof thereof is demanded at
the time of trial.
WHEREFORE, Defendant requests the Court determine that Plaintiff does not
have the authority to assign an extension agreement to a third party as such
assignment would be adverse to the language of the Declaration of Allen Glen, a
Planned Community.
R~
Kirk S. Sohonage, Esquire (77851)
Attorney for Defendant
PO Box 480
840 Market Street
Camp Hill, PA 17001-0480
P.7l7.6l2.9721
F.7l7.6l2.9722
CERTIFICATE OF SERVICE
1 hereby certify that a copy of this Answer was served upon the following counsel
via United States Mail on the 18th day of March 2005:
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, Pennsylvania 17013
Kir S. Sohonage, Esquire
Attorney for Defendant
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE POOTHOl\OI'ARY 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)
(X
civil Action - Law
CHADWICK O. BOGAR,
Appeal from Arbitration
(other)
(Plaintiff)
vs.
MANN REALTY
The trial list will be called on June 21, 200
and
Trials commence on
July 18, 2005
(Defendant)
Pretrials will be held on June 29, 2005
(Briefs are due 5 days before pretrials.)
vs.
(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. 973
Civil 2005
19
Indicate the attorney who will try case for the party who files this praecipe:
Hubert X. Gilroy, Esquire-4 North Hanover Street, Carlisle, PA 17013
Indicate trial counsel for other parties if known,
Kirk S. Sohonage, Esquire-840 Market Street, Harrisburg, PA 17001
This case is ready for trial.
Signed:
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Print Name, Hubert X. Gilroy, Esquire
Date:
Attorney for: Plaintiff
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CHADWICK O. BOGAR, :
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
MANN REALTY,
Defendant
NO. 05-973 CIVIL TERM
ORDER OF COURT
AND NOW, this 5th day of May, 2005, a pretrial conference in the above matter is
scheduled for Wednesday, July 13,2005, at 1 :30 p.m., in chambers ofthe undersigned
judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall
be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the
pretrial conference.
A NONJURY TRIAL in the above matter is scheduled for Wednesday, August 10,
2005, at 9:30 a.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle,
Pennsylvania.
BY THE COURT,
Aubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Plaintiff
~rk Sohonage, Esq.
P.O. Box 480
Camp Hill, P A 17001
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
No. 2005-973
CIVIL TERM
MANN REALTY, INC.,
Defendant
CIVIL ACTION-LAW
MOTION TO FILE AMENDED COMPLAINT
Plaintiff, Chadwick O. Bogar, by his attorneys, Broujos & Gilroy, P.C., sets forth
the following:
1. Plaintiff desires to file an Amended Complaint to simply raise the claim that
Section 8.04 of the Declarations violates the Rule Against Perpetuities. A copy of
the Amended Complaint is attached hereto and marked "Exhibit A", with the only
difference between the Amended Complaint and the original Complaint filed in
this case being the addition of Paragraph 10 and the addition of Subparagraph C
of the "Wherefore" clause.
2. Defendant is not willing to stipulate to the filing of an Amended Complaint.
3. Although Plaintiff suggests that a fair reading of the initial Complaint raises the
issue of the Rule Against Perpetuities, Plaintiff desires to modify the pleadings to
make that claim.
4. Allowing the filing of the Amended Complaint does not prejudice the Defendant in
this case, nor does it result in a delay of any proceedings.
WHEREFORE, Plaintiff requests your Honorable Court to allow him to file an
Amended Complaint.
CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
No. 2005-973
CIVIL TERM
MANN REALTY, INC.,
Defendant
CIVIL ACTION-LAW
ACTION FOR DECLARATORY JUDGMENT
AMENDED COMPLAINT
Plaintiff, Chadwick O. Bogar, by his Attorneys, Broujos & Gilroy, P.C., sets forth the
following:
1. Plaintiff is Chadwick O. Bogar, an adult individual residing at 101 Hunt Court,
Hummelstown, Dauphin County, Pennsylvania.
2. Defendant, Mann Realty, Inc., is a Pennsylvania Corporation with principal offices
located in Lemoyne, Cumberland County, Pennsylvania.
3. On or about September 1, 2003, Plaintiff purchased from Defendant a parcel of real
estate located in Upper Allen Township, Cumberland County, Pennsylvania, referred
to as Lot 6 of Allen Glen Court, and as more particularly described in deed from
Defendant to Plaintiff recorded in the Cumberland County Recorder of Deed's office
in Deed Book 260, Page 3278 (hereinafter referred to as the "Real Estate").
4. The Real Estate is part of a Planned Community known as Allen Glen, and is subject
to various restrictions as set forth in the "Declaration of Allen Glen, a Planned
Community" as recorded in the Cumberland County Recorder of Deeds Office in
Miscellaneous Book 695 page 1524 (hereinafter referred to as the "Declarations").
EXHIBIT
I A
5. Section 8.04 of the Declarations provides, in summary, that the owner of a lot in Allen
Glen must commence construction of a single family dwelling within 12 months of
initial settlement unless said time frame is extended by the Defendant. Failure to
commence said construction within the time frame would give the Defendant, at it's
option, the ability to repurchase the lot under terms as set forth in the Declarations.
6. Plaintiff and Defendant reached an agreement (hereinafter referred to as the
"Extension Agreement") whereby the Plaintiff's obligation to commence construction
of a single family dwelling on the Real Estate was extended for a period of two years.
7. Plaintiff has attempted to sell the Real Estate to a third party and Defendant has
created a cloud on the title to the Real Estate by virtue of Defendant asserting that
Plaintiff cannot assign the Extension Agreement to a third party upon sale of the lot.
8. The cloud Defendant has created on the title of the Real Estate by its actions in this
matter renders Plaintiff unable to sell the Real Estate.
9. A Declaration by the Court with respect to Plaintiff's rights to sell the Real Estate to a
third party and such third party's status with respect to Section 8.04 and other
sections of the Declarations is necessary in order to resolve the disputes between the
parties and conclusively determine each party's respective position relative to Section
8.04 and other sections of the Declarations.
10. Section 8.04 of the Declarations violates the Rule Against Perpetuities, 20 PA.C.S.A.
Section 6104, in that it gives the Defendant a perpetual option to purchase the Real
Estate and is void.
WHEREFORE, Plaintiff requests your Honorable Court to order the following relief:
A. Declare that Plaintiff shall have two years from the date of a final decree in
this case to commence construction of a single family dwelling on the Real
Estate.
B. Declare that Plaintiff may sell the Real Estate to a third party and may assign
Extension Agreement to build a single family dwelling to the third party under
such a situation as to not trigger the ability of the Defendant to repurchase the
Real Estate under Section 8.04 of the Declarations.
C. Declare that Section 8.04 of the Declarations is void insofar as it gives the
Defendant an option to repurchase the Real Estate.
D. Such other relief as the Court deems just and appropriate.
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
Attorney for Plaintiff
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v
No. 2005-973
CIVIL TERM
MANN REALTY, INC.,
Defendant
CIVIL ACTION-LAW
ORDER OF COURT
AND NOW, THIS ~ day of July, 2005, upon consideration of the attached
Motion to File Amended Complaint, a Rule is hereby issued upon the Defendant to show
cause why the Plaintiff should not be allowed to file an Amended Complaint as set forth
in the attached Motion. This Rule is returnable -2- days from service upon the
Defendant's counsel.
BY THE COURT,
Cc: Hubert X. Gilroy, Esquire
Kirk S. Sohonage, Esquire
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
MANN REALTY, INC.,
Defendant
CIVIL ACTION - LAW
NO. 05-973 CIVIL TERM
PRETRIAL CONFERENCE
A pretrial conference was held in the chambers of the
undersigned judge on Thursday, July 13, 200~;. Present on behalf of
the Plaintiff was Hubert X. Gilroy, Esquire. Present on behalf of
the Defendant was Kirk S. Sohonage, Esquire.
This is an action for a declaratory judgment to the
effect that Plaintiff can assign his rights to a residential lot,
including the right to build upon the lot during an extended
period, without subjection of the lot to repurchase by the original
owner of the lot (Defendant) under a certain restrictive covenant.
This will be a nonjury trial of an anticipated
duration of one half day By separate order of Court, the nonjury
trial has been scheduled for August 10, 2005, commencing at 9:30
a.m.
Plaintiff's counsel has indicated that, in an excess
of caution, he will be filing a motion or petition to amend the
complaint to assert the invalidity of the aforesaid restrictive
covenant on the basis of the Rule against Perpetuities.
With respect to settlement negotiations, it does not
appear to the Court that a settlement of the case is likely.
By the Court,
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Hubert X. Gilroy, Esquire
4 North Hanover Street
Carlisle, PA 17013
For the Plaintiff
Kirk Sohonage, Esquire
P.o. Box 480
Camp Hill, PA 17001
For the Defendant
Court Admin
Prothonotary
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IN THE COURT OF COMMON I'LEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
CHADWICK O. BOGAR
Plaintiff
CIVIL ACTION - LAW
v.
NO. 2005-973
MANN REALTY INC.
Defendant
ANSWER TO RULE
AND NOW, comes Mann Realty and answers the Rule to Show Cause Why
Plaintiff should not be allowed to file and Amended Complaint and in support thereof
avers the following:
I. Admitted on information and belief.
2. Admitted.
3. Denied. It is specifically denied that any reading of the Complaint raises
the issue of the Rule Against Perpetuities - if it did there would be no
reason to amend the Complaint.
4. Denied. The averment contained in Paragraph 4 is a conclusion of law to
which no responsive pleading is required. To the extent that a response is
deemed necessary, Defendant denies the same. By way of further answer,
allowing the Complaint to be amended would certainly prejudice the
Defendant in that it would force him to research and prepare for argument
of an obtuse issue that is specifically excepted by statute from application
in this case.
5. Title 68 Pa.C.S., Section 5203, states that "the Rule Against Perpetuities
may not be applied to defeat any provision of the declaration.. .or any
instrument executed pursuant to the declaration...
WHEREFORE, Defendant objects to the amending ofthe complaint to include a
claim that the Declarations of A1\en Glen violate the Rule Against Perpetuities in
that Pennsylvania law specifically prohibits the application ofthat Rule to
Declarations for Planned Communities, such as the one in this case. In the event
that such amendment is permitted, then Defendant rt:serves the right to file
Preliminary Objections to the same.
R~1JlY
Kirk S. Sohonage, Esquire (77851)
Attorney for Defendant
PO Box 480
Camp Hill, PA 17001-0480
P.717.612.972l
2
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Answer was servc:d upon the following counsel
By hand delivery on the 26th day of July 2005:
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, Pennsylvania 17013
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Kirk S. Sohonage, Esquire
Attorney for Defendant
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CHADWICK O. BOGAR, :
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COuNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MANN REALTY, INC,
Defendant
NO. 05-973 CIVIL TERM
ORDER OF COURT
AND NOW, this 2ih day of July, 2005, upon consideration of Plaintiff's Motion
To File Amended Complaint, and of Defendant's Answer to Rule, the motion to amend is
granted.
BY THE COURT,
~rt X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Plaintiff .J
~ Sohonage, Esq.
P.O. Box 480
Camp HilI, PA 17001
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
No. 2005-973
CIVIL TERM
MANN REALTY, INC.,
Defendant
CIVIL ACTION-LAW
NOTICE TO PLEAD
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 (20) days aftler this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that
if you fail to do so the case may proceed without you and 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 Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
717-249-3166
CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
No. 2005-973
CIVIL TERM
MANN REALTY, INC.,
Defendant
CIVIL ACTION-LAW
ACTION FOR DECLARATORY JVDGMENT
AMENDED COMPLAINT
Plaintiff, Chadwick O. Bogar, by his Attorneys, Broujos & Gilroy, P.C., sets forth the
folIo wing:
1. Plaintiff is Chadwick O. Bogar, an adult individual residing at 101 Hunt Court,
Hummelstown, Dauphin County, Pennsylvania.
2. Defendant, Mann Realty, Inc., is a Pennsylvania Corporation with principal offices
located in Lemoyne, Cumberland County, Pennsylvania.
3. On or about September 1, 2003, Plaintiff purchased from Defendant a parcel of real
estate located in Upper AlIen Township, Cumberland County, Pennsylvania, referred
to as Lot 6 of AlIen Glen Court, and as more partkularly described in deed from
Defendant to Plaintiff recorded in the Cumberland County Recorder of Deed's office
in Deed Book 260, Page 3278 (hereinafter referred to as the "Real Estate").
4. The Real Estate is part of a Planned Community known as Allen Glen, and is subject
to various restrictions as set forth in the "Declaration of Allen Glen, a Planned
Community" as recorded in the Cumberland County Recorder of Deeds Office in
MiscelIaneous Book 695 page 1524 (hereinafter referred to as the "Declarations").
5. Section 8.04 of the Declarations provides, in summary, that the owner of a lot in Allen
Glen must commence construction of a single family dwelling within 12 months of
initial settlement unless said time frame is extended by the Defendant. Failure to
commence said construction within the time frame would give the Defendant, at it's
option, the ability to repurchase the lot under terms as set forth in the Declarations.
6. Plaintiff and Defendant reached an agreement (hereinafter referred to as the
"Extension Agreemcnt") whereby the Plaintiff's obligation to commence construction
of a single family dwelling on the Real Estate was extended for a period of two years.
7. Plaintiff has attempted to sell the Real Estate to a third party and Defendant has
created a cloud on the title to the Real Estate by virtue of Defendant asserting that
Plaintiff cannot assign the Extension Agreement to a third party upon sale of the lot.
8. The cloud Defendant has created on the title of the Real Estate by its actions in this
matter renders Plaintiff unable to sell the Real Estate.
9. A Declaration by the Court with respect to Plaintiff's nights to sell the Real Estate to a
third party and such third party's status with respect to Section 8.04 and other
sections of the Declarations is necessary in order to resolve the disputes between the
parties and conclusively determine each party's respective position relative to Section
8.04 and other sections of the Declarations.
10. Section 8.04 of the Declarations violates the Rule Against Perpetuities, 20 PA.C.S.A.
Section 6104, in that it gives the Defendant a perpetual option to purchase the Real
Estate and is void.
WHEREFORE, Plaintiff requests your Honorable Court to order the following relief:
A. Declare that Plaintiff shall have two years from the date of a final decree in
this case to commence construction of a single family dwelling on the Real
Estate.
B. Declare that Plaintiff may sell the Real Estat.e to a third party and may assign
Extension Agreement to build a single family dwelling to the third party under
such a situation as to not trigger the ability olr the Defendant to repurchase the
Real Estate under Section 8.04 of the Declarations.
C. Declare that Section 8.04 of the Declarations is void insofar as it gives the
Defendant an option to repurchase the Real Estate.
D. Such other relief as the Court deems jnst and appropriate.
H~ GiI y, E.."'~
Broujos & roy, P.C.
Attorney f Plaintiff
/
VERIFICATION
The undersigned hereby verifies that the statements of fact in the
foregoing Amended Complaint are true and correct to the best of my knowledge,
information and belief. I understand that any false statements therein are subject
to the penalties contained in 18 Pa. C.S.A. ~ 4904, relating to unsworn falsification
to authorities.
Dated: 1(,-' ( OS
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - LAW
MANN REALTY ASSOCIATES,
INC. ,
Defendant
NO. 05-973 CIVIL TERM
IN RE: AMENDMENT OF CAPTION
ORDER OF COURT
AND NOW, this 10th day of August, 2005,
pursuant to an agreement of counsel reached in open court,
the caption of the complaint herein is amended to reflect
that the proper name of the Defendant is Mann Realty
Associates, Inc.
By the Court,
~ubert x. Gilroy, Esquire
4 North Hanover Street
Carlisle, PA 17013
For Plaintiff
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P.O. Box 480
Camp Hill, PA 17001
For Defendant
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - LAW
MANN REALTY ASSOCIATES,
INC. ,
Defendant
NO. 05-97~ CIVIL TERM
IN RE: COMPLAINT FOR DECLARATORY JUDGMENT
ORDER OF COURT
AND NOW, this 10th day of August, 2005, upon
consideration of the complaint for declaratory judgment
filed in the above-captioned matter, and following a nonjury
trial, the record is declared closed, and the matter is
taken under advisement.
Pursuant to a request of both counsel, briefs
shall be submitted on the issues which counsel perceive to
exist in the case on or before the close of business on
Friday, August 19, 2005.
It is noted that neither counsel has
requested that a transcript of the notes of testimony be
prepared and filed.
By the Court,
b ~ ilL
esley 01 J., J.
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Hubert X. Gilroy, Esquire
4 North Hanover Street
Carlisle, PA 17013
For Plaintiff
Kirk Sohonage, Esquire
P.O. Box 480
Camp Hill, PA 17001
For Defendant
:mae
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CHADWICK o. BOGAR
Plaintiff
CIVIL ACTION - LAW
v.
NO. 2005-973
MANN REAL TV ASSOCIATES,
INC.
Defendant :
PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT
AND NOW, comes the Defendant and files these preliminary objections to the
Amended Complaint and in support thereof avers the following:
I. The Plaintiff's Amended Complaint fails to conform to law or rule of
court;
2. The Plaintiff's Amended Complaint is legally insufficient.
WHEREFORE, Defendant requests the Court grant a demurrer to the Defendant's
Amended Complaint.
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rk . S onage, Esquire (77851)
Attorney for Defendant
PO Box 480
840 Market Street
Camp Hill, P A 17001-0480
P.717.612.9721
F.717.612.9722
CERTIFICATE OF SERVICE
I hereby certify that a copy of these Preliminary Objections were served upon the
following counsel via United States Mail on the 18th day of August 2005:
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, Pennsylvania 17013
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Attorney for Defendant
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAN][) COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MANN REAL TY ASSOCIATES, INC.,
Defendant
NO. 05-973 CIVIL TERM
MOTION TO STRIKE
Plaintiff, Chadwick O. Bogar, by his attorneys, Broujos & Gilroy, sets forth the following:
1. The above action was commenced by the Plaintiff filing a Complaint on February 24,
2005.
2. Defendant filed an Answer to the Complaint on Mar.:h 18,2005.
3. By Order of Court dated July 25, 2005, the Court allowed Plaintiff to file an Amended
Complaint.
4. Plaintiff filed an Amended Complaint on July 29, 2005, which Amended Complaint only
included one new paragraph, which was paragraph 10 and which suggested that the
Declaration at question in this case violated the Rule Against Perpetuities.
5. Without filing an Answer to the Amended Complaint, Defendant appeared through his
counsel at trial in this case on August 10,2005. At Ithe said trial, this Court entered an
Order declaring that the record was closed and that the case would be taken under
advisement by the Court with the opportunity for counsel for both parties to submit
briefs. Defendant filed a brief in support of its position as stated at trial on August 19,
2005.
6. On August 18, 2005, Defendant filed Prelimin:i1ry Objections to the Amended
Complaint.
7. Defendant's Preliminary Objections are inappropriately filed and should be stricken for
the following reasons:
A. By appearing at trial and litigating the case on the merits, Defendant has waived
the right to file any Preliminary Objections.
B. By failing to note any objection on the record at trial to the Court proceeding
with the trial without giving the Defendant an opportunity to file Preliminary
Objections within twenty days of the date of filing of the Amended Complaint,
Defendant waived any right to file Preliminary Objections.
C. The Preliminary Objections filed by the Defendant essentially suggest that the
Amended Complaint fails to conform to law or rule of Court and that the
Amended Complaint is legally insufficient. Such allegations merged into any
defense advanced by the Defendant at trial and were addressed by Defendant's
arguments at trial and by Defendant's post-triial brief.
D. The nature of the Preliminary Objections filed in this case, when considering the
fact that the Amended Complaint only included one new paragraph relating to a
claim that the declaration in question violated the Rule Against Perpetuities,
suggests that the Defendant has merely filed Preliminary Objections in an effort
to delay these proceedings and cause further tiinancial harm to the Plaintiff.
WHEREFORE, Plaintiff requests your Honorable Court to issue an Order striking the
Preliminary Objections filed by the Defendant in this case.
y?lt:;
Hubert X. Gilro , Esquire
Broujos & GiI oy, P.C.
Attorney for Plaintiff
CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAN][) COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MANN REAL TY ASSOCIATES, INC.,
Defendant
NO. 05-973 CIVIL TERM
AFFIDAVIT OF SERVIClE
I hereby certify that a copy of the foregoing Motion was served upon the below named
counsel for Defendant by depositing the...,e,ame in the United States Mail at Carlisle,
Pennsylvania, postage prepaid, on the \.r day of Sept,ember, 2005:
Kirk Sohonage, Esquire
Counsel for Mann Realty Associaltes, Inc.
Post Office Box 480
Camp Hill, P A 17011
L
Hubert X. G' oy, Esquire
Attorney ~ Plaintiff
Broujos & Gilroy, P.C.
4 N. Hanover Street
Ca.-lisle, PA 17013
(717) 243-4574
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
MANN REALTY, INC,
Defendant
NO. 05-973 CIVIL TERM
ORDER OF COURT
AND NOW, this 22nd of September, 2005, upon consideration of Plaintiffs
Motion To Strike, a Rule is hereby issued upon Defendant to show cause why the relief
requested should not be granted.
RULE RETURNABLE within 7 days of the date of this order.
BY THE COURT,
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
No. 2005-973
CIVIL TERM
MANN REALTV, INC.,
Defendant
CIVIL ACTION-LAW
MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE
Plaintiff, Chadwick O. Bogar, by his attorneys, BI~oujos & Gilroy, P.C., sets forth
the following:
1. On September 15, 200S, Plaintiff fIled a Motion to Strike Preliminary Objections
which Defendant fIled on August 18, 2005.
2. By Order of Court dated September 22, 200S, this Court issued a Rule upon
Defendant to show cause why the relief requested on Plaintiff's Motion to Strike
should not be granted. Said Rule was returnable s,even days from the date of the
September 22, 200S Order.
3. Defendant has not fIled any documentation in response to Plaintiff's Motion to
Strike. Specifically, Defendant has not filed any document to show cause why the
Motion to Strike should not be granted.
WHEREFORE, Plaintiff requests your Honorable Court to make the Rule Absolute
and to strike the Preliminary Objections fIled in this case.
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Hubert X. G' oy, Esquire
Broujos i1roy
Attorn s for Plaintiff
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION-LAW
MANN REALTY
ASSOCIATES, INC.,
Defendant
NO. 05-973 CIVIL TERM
IN RE: ACTION FOR DECLARATORY JUDGMENT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 10th day of October, 2005, upon consideration of Plaintiffs
complaint and amended complaint, and Defendant's preliminary objections to the
amended complaint, following a non-jury trial, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
I. Defendant's preliminary objections to Plaintiffs amended complaint
are dismissed.
2. Plaintiff has a valid two-year extension to begin construction on Lot
Number 6, commencing on September 2, 2004, and expiring on
September 2, 2006.
3. Plaintiff may assign the two-year extension to a third-party grantee of
Lot Number 6.
4. In the event of a failure by Plaintiff or any assignee to commence
construction on Lot Number 6 within the time of the two-year
extension, Defendant's option to repurchase Lot Number 6 will expire
three months after the expiration of the aforementioned extension.
BY THE COURT,
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Hubert X. Gilroy, Esq.
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
Kirk Sohonage, Esq.
P.O. Box 480
Camp Hill, PA 17011
Attorney for Defendant
CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION-LAW
MANN REALTY
ASSOCIATES, INC.,
Defendant
NO. 05-973 CIVIL TERM
IN RE: ACTION FOR DECLARATORY JUDGMENT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., October 10,2005.
This case arises out of a real estate transaction between Chadwick O. Bogar
(Plaintiff/Buyer) and Mann Realty Associates, Inc., (Defendant/Seller) for a parcel of
land known as Lot 6 of Allen Glen, Upper Allen Township, Cumberland County,
Pennsylvania. The parcel of land is part of a planned community known as Allen Glen
and is subject to various restrictions set forth in the "Declaration of Allen Glen, a Planned
Community."
Section 8.04 of the Declaration includes a requirement that the buyer begin
construction of a single family home on the lot within twelve months of the initial
settlement; otherwise, the seller has the option to repurchase the property, at any time, for
the original consideration paid. Although the initial twelve-month period elapsed,
Plaintiff alleged that Defendant granted him an extension of two years to commence
building on the lot; Defendant, on the other hand, denies that an agreement for the
extension was reached. Plaintiff then filed a complaint, which was later amended,
requesting that the court (I) declare that Plaintiff has a two-year extension to commence
construction, (2) declare that Plaintiff may transfer the property to a third party and
assign the extension to the third party, and (3) declare that the seller's option to
repurchase the lot under Section 8.04 of the Declaration void against the Rule against
Perpetuities. After a non-jury trial was held, Defendant filed preliminary objections to
Plaintiffs amended complaint.
For the reasons stated in this OpllllOn, Defendant's preliminary objections to
Plaintiffs amended complaint will be denied, and a declaration of rights will be entered.
STATEMENT OF FACTS
Plaintiff is Chadwick O. Bogar, who currently resides at 101 Hunt Court,
Hummelstown, Dauphin County, Pennsylvania. I Defendant is Mann Realty Associates,
Inc., a Pennsylvania corporation with its principal offices located in Lemoyne,
Cumberland County, Pennsylvania.2 For the purposes of the transactions discussed
herein, Robert M. Mumma, II, was acting as Defendant's authorized agent.3
On September 2, 2003, Plaintiff purchased from Defendant, for the price of
$200,000.00,4 a vacant parcel of land known as Lot Number 6 of Allen Glen.5 Allen
Glen is a planned community of about 23 lots located in Upper Allen Township,
Cumberland County, Pennsylvania.6 Like all lots purchased in Allen Glen, Lot Number 6
is subject to a number of restrictions set forth in the "Declaration of Allen Glen, A
Planned Community," which was recorded pursuant to the Pennsylvania Uniform
Planned Community Act.?
Of primary importance to this case is Section 8.04 of the declaration, which sets
forth time limitations for commencing construction of a home on a newly-purchased lot. 8
Section 8.04 provides, in pertinent part:
Declarant Repurchase Option. The Owner(s) of each Lot or Lots
shall, within twelve (12) months from the date of settlement, commence
construction of the single family detached dwelling to be constructed upon
the Lot or Lots. In the event that the Owner(s) shall fail to commence
] Amended Compl., filed July 29, 2005, ~ I (hereinafter PI.'s Amended Com pI. ~; Answer, filed Mar.
21, 2005, ~ I (hereinafter Def.'s Answer _).
2 PI.'s Amended Compl. ~ 2; Def.'s Answer ~ 2.
3 Notes of Testimony 5, Hr'g., Aug. 10,2005 (hereinafter NT~.
4 See NT 33.
5 NT. 3-4; PI.'s Ex. 1, Hr'g., Aug. 10,2005 (hereinafter PI.'s Ex.~.
6NT 3-4; PI.'s Amended Compl. ~~ 3-4; Def.'s Answer~~ 3.4.
7 NT. 4; PI. 's Ex. 2.
'N.T. 4-5; PI.'s Ex. 2.
2
construction within such twelve (12) months, then such Owner(s) shall, at
the option of Declarant, reconvey the Lot or Lots to Declarant, for the same
consideration which Owner(s) paid for the subject Lot or Lots, and the
Owner(s) shall also pay all realty transfer taxes assessed in connection with
reconveyance. Declarant, or its designees, reserve the right, at its option, to
extend, in writing, the date on which construction must commence.
Construction with respect to the single family detached dwelling, to include
the garage, must be completed within twelve (12) months after construction
has begun but not later than two (2) years following the date of settlement,
unless the date of commencement has been extended by Declarant, or its
designees, in writing.
In the event that the Owner(s) shall elect to convey the Lot or Lots
conveyed to them during the twelve (12) months following the date of the
initial settlement, then the successor Owner(s) shall be required to
commence construction within twelve (12) months from the date that the
Lot was conveyed by Declarant to the initial Owner(s). Any successor
Owner(s) must complete the single family detached dwelling, to include the
garage, within two (2) years from the initial settlement. Declarant reserves
the right, as set forth above, to extend the date on which construction must
commence or be completed, or both, for the successor Owner(s).9
In order to be in compliance with Section 8.04 of the declaration, Plaintiff would
have had to commence construction of a single family home on Lot Number 6 by
September 2, 2004.10 Plaintiff, however, did not commence construction by this date.
Instead, in June of 2004, Plaintiff began discussions with Mr. Mumma to receive an
extension for commencement of construction of a home on Lot Number 6.11 During
these discussions, Plaintiff made it known to Mr. Mumma that he intended to sell the
property.12 It appears, as evidenced by Plaintiff and Mr. Mumma's exchange of e-mails
between June 4, 2004, and June 8, 2004, that the parties agreed to a two-year extension
for commencement of construction on Lot Number 6.13 As understood by Plaintiff, and
'PI.'sEx.2.
10 See PI.'s Ex. 1; PI.'s Ex. 2.
II N.T. 12,24.
"NT.22.
13 PI.'s Ex. 3. The contents of the e-mails were as follows: On June 4, 2004, Plaintiff wrote, "This
constitutes written confirmation that you granted to Carter and me an indefinite extension of time to
3
the court finds as a fact, this extension was to run from September 2, 2004, to September
2, 2006.14
Upon receiving an extension for commencement of construction on his property,
Plaintiff began marketing Lot Number 6 for sale. IS In December of 2004, Plaintiff
entered into an agreement to sell his property to Jeffrey and Melinda Mandak for
$212,000.00.16 However, before the sale was completed, Mr. Mumma began asserting
that no agreement for an extension for commencement of construction had been
reached. 17 If Mr. Mumma was correct in alleging that no extension had been granted,
then Mr. Mumma could, at any point in the future, exercise the option under Section 8.04
of the declarations to repurchase Lot Number 6 at the original purchase price, regardless
of whether the property had subsequently been sold to a third party.18 Because of the
uncertainty surrounding the validity of the extension, as well as the repurchase option
under Section 8.04, the Mandaks revoked their agreement to purchase Lot Number 6.19
The dispute concerning the extension for commencement of construction, coupled
with the repurchase option, has created a serious problem with the title to Lot Number 6,
leaving Plaintiff unable to sell the property.20 Consequently, Plaintiff filed a complaint
on February 24, 2005, requesting that this court order the following relief:
A. Declare that Plaintiff shall have two years from the date of a final
decree in this case to commence construction of a single family
dwelling on the Real Estate.
B. Declare that Plaintiff may sell the Real Estate to a third party and may
assign Extension Agreement to build a single family dwelling to the
commencing building on my lot in Allen Glen." On June 8, 2004, Mr. Mumma responded, "It was a two
year extension. Not indefinite." On June 8, 2004, Plaintiff responded, "Okay. Thx."
"N.T.24.
"NT 12.
[('NT 11-12,33.
17 NT 25-27.
"N.T.I8.
19NT27.
2ONTI7,31.
4
third party under such a situation as to not trigger the ability of the
Defendant to repurchase the Real Estate under Section 8.04 of the
Declarations.
C. Such other relief as the Court deems just and appropriate21
On July 29, 2005, Plaintiff, with permission of the court, filed an amended
complaint raising the issue of the Rule against Perpetuities.22 Plaintiff, in this regard,
requested that this court, in addition to the relief requested in the original complaint,
"[ d]eclare that Section 8.04 of the Declarations is void insofar as it gives the Defendant
an option to repurchase the Real Estate.,,23
A non-jury trial was held on this matter on August 10,2005. Both parties have
submitted post-trial briefs. Eight days after the record had been declared closed, on
August 18, 2005, Defendant filed preliminary objections to Plaintiffs amended
complaint, contending (I) that the amended complaint failed to conform to law or rule of
court, and (2) that the amended complaint was legally insufficient.24
DISCUSSION
Statement of Law
Validity of a Contract. In order for a valid contract to exist, "there must be an
offer, acceptance, and consideration or mutual meeting of the minds." Yarnall v. Almy,
703 A.2d 535, 538 (Pa. Super. 1997). "An offer is a manifestation of willingness to enter
a bargain, so made as to justify another person in understanding that his assent to that
bargain is invited and will conclude it." Perry v. Tioga County, 694 A.2d 1176, 1178
(Pa. Commw. 1997). The acceptance of an offer requires the unequivocal agreement of
the offeree to enter into a contract with the offeror. Warner Bros. Theatres v. Proffitt,
329 Pa. 316, 319,198 A. 56, 58 (1938). Finally, a mutual meeting of the minds occurs
when "the parties mutually assent to the same thing[.]" Hahnemann Med. Call. & Hasp.
of Philadelphia v. Hubbard, 267 Pa. Super. 436, 440, 406 A.2d 1120, 1122 (1979).
21 Action for Declaratory Judgment, filed Feb. 24, 2005 (hereinafter PI. CampI. ---1.
22 PI.'s Amended CampI.
23 PI.'s Amended CampI.
24 Def.'s Prelim. Objections to Amended CampI., filed August 18, 2005.
5
Assignment of Contract Rights. A party to a bilateral contract may assign his or
her rights to a third party so long as the contract "does not involve personal skill, trust or
confidence ... [and] does not materially alter the other party's duties and
responsibilities." Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 285, 687 A.2d
1167,1172 (1997). "Where an assignment is effective, the assignee stands in the shoes
of the assignor and assumes all of his rights." [d.
Time for Exercise of a Contract Option. An option that does not specify a time
period in which it needs to be exercised presents a problem of construction. See Barr v.
Deiter, 190 Pa. Super. 454, 460, 154 A.2d 290, 293 (1959). When a time period for
exercising the option is not designated, "the option ... [has] to be exercised in a
reasonable time considering all the circumstances." [d.
Rule against Perpetuities. An option to repurchase property, which does not
contain a time limit for exercise of the option, has in one context been described as a
"violent breach of the rule against perpetuities.... It isolates the property. It takes it out
of commerce. It removers] it from the market. It halts improvements." Barton v. Thaw,
246 Pa. 348, 364, 92 A. 312, 316 (1914).25
Application of Law to Facts
With respect to Defendant's preliminary objections to Plaintiffs amended
complaint, filed after the record in the case had been closed, the court regards them as
neither meritorious nor timely. Accordingly, they will be dismissed.
With respect to the merits of the case, the evidence presented at trial established,
to the court's satisfaction in its capacity as trier-of-fact, the validity of the two-year
extension for commencement of construction on Lot Number 6, commencing on
September 2, 2004, and ending on September 2, 2006. Plaintiff wrote an e-mail to Mr.
Mumma to confirm an agreement to extend the time Plaintiff had to begin construction
on his property, thus suggesting there was an offer and acceptance for the extension. In
25 But see Cent. Delaware County Auth. v. Greyhound Corp., 527 Pa. 47, 55 n.8, 588 A.2d 485, 489 n.8
(199]) (noting that Pennsylvania uses a wait-and-see approach to determining whether the Ru]e against
Perpetuities voids a future property interest); Act of Dec. ] 9, ] 996, P.L. 1336, 11 1, 68 Pa. C.S.A. 11 5203
(suggesting that Ru]e against Perpetuities does not apply to certain aspects ofp]anned communities).
6
his reply to Plaintiffs confirmation e-mail.Mr. Mumma responded that the extension
was for two years, not indefinite, again suggesting that an agreement had been reached
for the extension. While Mr. Mumma's response that the extension was for only two
years may at first have caused some question about whether there was a mutual meeting
of the minds on the extension, Plaintiffs response of "Okay" to Mr. Mumma's response
strongly suggests there was a mutual meeting of the minds, and that the parties agreed to
a two-year extension.
This court also believes that the two-year extension granted to Plaintiff was
assignable to a third party. The two-year extension to commence construction did not
involve personal skill, trust, or confidence. Additionally, this court believes that
assignment of the two-year extension to a third party will not materially alter the duties of
Defendant under the Declaration or the two-year extension. Thus, the two-year extension
is assignable to a third party.
Finally, the Declarations did not designate a time period for exercising the option
to repurchase Lot Number 6; therefore, Defendant has to exercise the repurchase option
within a reasonable time of its becoming available. A repurchase option, such as the one
included in Section 8.04 of the Declarations, creates a serious problem with the title to
the property; this court believes that a reasonable period for exercising such an option is
three months.26
ORDER
AND NOW, this 10th day of October, 2005, upon consideration of Plaintiffs
complaint and amended complaint, and Defendant's preliminary objections to the
amended complaint, following a non-jury trial, and for the reasons stated III the
accompanying opinion, it is ordered and directed as follows:
I. Defendant's preliminary objections to Plaintiffs amended complaint
are dismissed.
26 Because the court has found that Defendant has three months to act upon the repurchase option from the
date it becomes exercisable, it is unnecessary for the court to address Plaintiff's Rule against Perpetuities
position.
7
2. Plaintiff has a valid two-year extension to begin construction on Lot
Number 6, commencing on September 2, 2004, and expiring on
September 2, 2006.
3. Plaintiff may assign the two-year extension to a third-party grantee of
Lot Number 6.
4. In the event of a failure by Plaintiff or any assignee to commence
construction on Lot Number 6 within the time of the two-year
extension, Defendant's option to repurchase Lot Number 6 will expire
three months after the expiration of the aforementioned extension.
BY THE COURT,
sf J. Wesley Oler. Jr.
J. Wesley Oler, Jr. J.
Hubert X. Gilroy, Esq.
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
Kirk Sohonage, Esq.
P.O. Box 480
Camp Hill, PA 17011
Attorney for Defendant
8
CHADWICK O. BOGAR, :
Plaintiff
v.
MANN REALTY, INC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
NO. 05-973 CIVIL TERM
ORDER OF COURT
AND NOW, this 14th day of October, 2005, upon consideration of Plaintiffs
Motion To Make Rule To Show Cause Absolute, the motion is deemed moot by virtue of
the Order of Court dated October 10,2005, in the above matter.
,4'bert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
~rk Sohonage, Esq.
P.O. Box 480
Camp Hill, P A 1700 I
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BY THE COURT,
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Kirk S. Sohonage, Esquire
PO Box 480
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P.717.612.9721
Attorney for Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CHADWICK O. BOGAR
Plaintiff
CIVIl, ACTION - LAW
v.
NO. 2005-973
MANN REAL TY ASSOCIATES,
INC.
Defendant
PETITION FOR LEAVE TO WITHDRAW
AND NOW comes the Petitioner, Kirk S. Sohonage and files this Petition for
Leave to Withdraw and in support thereof aver:
1. Petitioner represents Plaintiff Robert M. Mumma II in the matter.
2. For various reasons Petitioner can no longer effectively represent the interests of
Plaintiff and it is impractical for Petitioner to continue representing him.
3. Plaintiff has not paid Petitioner for his services and it is a financial hardship for
Petitioner to continue his representation of Plaintiff.
4. Withdrawal by Petitioner will not prejudice the interests of Plaintiff, in that this
matter has already been decided by this Court, although there has been a Motion
for Reconsideration filed at the request of Plaintiff.
5. Robert M. Mumma II's addresses are Box 58, Bowmansdale, PA 17008 and 6880
S.E. Harbor Circle, Stuart, FL 34996.
6. Robert M. Mumma II has been served.
WHEREFORE, Petitioner respectfully requests that he be allowed to withdraw as
counsel for Defendant in the above-captioned action.
LO ' z..o ,0 ;5
Date
Respeetfully Submitted
H/
Kirk S. sllhonage, Esq.
J.D. No.: 77851
Box 480
Camp Hill, P A 17001-0480
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and conect copy of the foregoing
PETITION FOR LEAVE TO WITHDRAW was served by hand-delivery upon the
following:
Hubert X. Gilroy, Esquire
BROUJOS & GILROY
Hanover Street
Carlisle, P A 17013
Robert M. Mumma II
IO-l:"<Jo$
Date
Kirk S. Sohonage, Esquire
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Kirk S. Sohonage, Esquire
PO Box 480
Camp Hill, PA 17001-0480
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CHADWICK O. BOGAR
Plaintiff
CIVIL ACTION - LAW
v.
NO. 2005-973
MANN REALTY ASSOCIATES,
INC.
Defendant
MOTION FOR RECONSIDERATION
OF OCTOBER 10. 2005 ORDER
AND NOW, comes the Defendant and asks for Reconsideration of the Court's
October 10, 2005, Order in this Declaratory Action and in support thereof avers the
following:
1. The e-mail communications between Plaintiff and Robert M. Mumma II
did not constitute a writing as was required for an extension under Section 8.04 of the
Declarations of Allen Glen.
2. Alternatively, Plaintiff Bogar lacks the authority to unilaterally assign any
extension in that such extension, if determined valid, was specific to Plaintiff and his
former wife, Carter Bogar, and that specificity prohibits assignability.
3. Defendant submits that based upon the testimony of Plaintiff it was clear that
there was no meeting of the minds and no agreement was created between the parties in
that the Plaintiffs initial e-mail was to confirm an indefinite extension, the Defendant's
reply offered a different understanding of the length of an extension, which Plaintiff
could not have accepted by writing "Okay."
4. The Plaintiff failed to pay any consideration for the alleged extension and
therefore it was invalid.
5. Defendant asks for Reconsideration of this Court's October 10,2005 Order.
BY:
Kirk . Sohonage, Esquire
Attorney for Defendant
y/,:/ ..
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CERTIFICATE OF SERVICE
I hereby certify that a copy of this Motion for Reconsideration was served upon
the following counsel by hand-delivery on the 20th day of October 2005 at the
following address:
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.c.
4 North Hanover Street
Carlisle, Pennsylvania 17013
/If/'
Kirk S. Sohonage, Esquire
Attorney for Mann
S. Ct. ID #77851
PO Box 480
Camp Hill, P A 17001-0480
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
MANN REAL TY ASSOCIATES,
INC.,
: NO. 2005-973
Defendant
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
1. Matter to be argued: Defendant's Motion for Reconsideration (construed by Plaintiff to
be Defendant's Motion for Post-Trial Relief)
2. Counsel who will argue case:
a) For Plaintiff: Hubert X. Gilroy, Esquire
4 N. Hanover Street, Carlisle, P A 17013
b) For Defendant: Kirk S. Sohonage, Esquire
Post Office Box 480, Camp Hill, P A 17011
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: November 23, 2005
Hubert X. Gilroy,
Broujos & Gilro
4 N. Hanover reet
Carlisle, P A 17013
(717) 243-4574
ID #29943
Attorney for Plaintiff
Dated: October 21, 2005
r., ...,
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Kirk S. Sohonage, Esq.
P.O. Box 480
CampHill,PA 17001-0480
Attorney J.D. No. 77851
(724) 880-7285
CHADWICK O. BOGAR,
Plaintiff,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No. 2005-973
MANN REALTY ASSOCIATES, INC.,
Defendant
CIVIL ACTION - LAW
NOTICE OF APPEAL
Notice is hereby given that Mann Realty Associates, Inc., defendant above-named,
hereby appeals to the Superior Court of Pennsylvania from the order entered on the lOth day of
October, 2005. This order has been entered in the docket as evidenced by the attached copy of
the docket entry.
RESPECTFULLY SUBMITTED,
Filed: November 9,2005
11 ;p./-I.
k-..w( >. ;: 0-'7~ ,E=~
Kirk S. Sohonage, Esq.
Attorney for Mann Realty Associates, Inc.
REQUEST FOR TRANSCRIPT
Pursuant to Pa. R.A.P. 904(c) and 1911, Defendant respectfully requests that the hearing upon
which the October 10, 2005 Order is based be transcribed, upon necessary payment or deposit.
Dated: November 9,2005
K;;J., >. >~I E~. :D.H.
Kirk S. Sohonage, Esq.
Attorney for Mann Realty Associates, Inc.
, .
CERTIFICATE OF SERVICE
I, Kirk S. Sohonage, Esq" hereby certify that on November 9, 2005, 1 served a true and
correct copy of the foregoing Notice of Appeal by first class mail, postage prepaid upon the
following addresses:
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
Dated: November 9, 2005
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Kirk S. Sohonage, Esq.
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Cumberland County Prothonotary's Office
Civil Case Print
Page
1
2005-00973 BOGAR CHADWICK 0 (vs) MANN REALTY ASSOCIATES INC
Reference No. . :
Case Type.....: COMPLAINT
Judgment......: .00
JVdge Assigned: OLER J WESLEY JR
Dlsposed Desc. :
------------ Case Comments -----0---0---
Filed........ :
Time. . . . . .... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
2/24/2005
2:23
0/00/0000
0/00/0000
********************************************************************************
General Index Attorney Info
BOGAR CHADWICK 0
101 HUNT COURT
HUMMELSTOWN PA 17011
MANN REALTY ASSOCIATES INC
NO ADDRESS PROVIDED
PLAINTIFF
GILROY HUBERT X
DEFENDANT
********************************************************************************
* Date Entries *
********************************************************************************
2/24/2005
3/21/2005
4/26/2005
5/06/2005
7/19/2005
7/20/2005
7/21/2005
7/26/2005
7/28/2005
7/29/2005
8/11/2005
8/11/2005
8/18/2005
- - - - - - - 0 - - - - - FIRST ENTRY - - - - - - - - 0 - - - - -
ACTION FOR DECLARATORY JUDGMENT
------------------------------------------------~------------------
ANSWER - BY KIRK S SOHONAGE ESQ FOR DEFT
-----------------------------------------------------------------~-
PRAECIPE FOR LISTING CASE FOR TRIAL -HUBERT X GILROY ATTY FOR PLFF
-------------------------------------------------------------------
ORDER OF COURT - DATED 5/5/05 - A PRETRIAL CONFERENCE IN THE ABOVE
MATTER IS SCHEDULED FOR 7/13/05 AT 1:30 PM IN CHAMBERS OF THE
UNDERSIGNED JUDGE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - A
NONJURY TRIAL IN THE ABOVE MATTER IS SCHEDULED FOR 8/10/05 AT 9:30
AM IN CR 1 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT
J WESLEY OLER JR J COPIES MAILED 5/9/05
-------------------------------------------------------------------
MOTION TO FILE AMENDED COMPLAINT BY HUBERT X GILROY ESQ FOR PLFF
-------------------------------------------------------------------
ORDER OF COURT - DATED 7/19/05 - IN RE MOTIN TO FILE AMENDED
COMPLAINT 0 RULE IS ISSUED UPON THE DEFENDANT TO SHOW CAUSE WHY
THE PLAINTIFF SHOULD NOT BE ALLOWED TO FILE AN AMENDED COMPLAINT
AS SET FORTH IN THE ATTACHED MOTION - THIS RULE IS RETURNABLE 7
DAYS FROM SERVICE UPON THE DEFENDANT'S COUNSEL - BY J WESLEY OLER
JR J
PRETRIAL CONFERENCE - BY J WESLEY OLER JR J
-------------------------------------------------------------------
ANSWER TO RULE 0 BY KIRK S SOHONAGE ESQ FOR DEFT
---------------------------------------~---------------------------
ORDER OF COURT - DATED 7/27/05 - IN RE PLFF'S MOTIONTO FILE
AMENDED COMPLAINT AND OF DEFT'S ANSWER TO RULE - THE MOTION TO
AMEND IS GRANTED - BY THE COURT J WESLEY OLER JR J COPIES MAILED
-------------------------------------------------------------------
ACTION FOR DECLARATORY JUDGMENT AMENDED COMPLAINT - BY HUBERT X
GILROY ESQ
-------------------------------------------------------------------
ORDER OF COURT - DATED 8/10/05 - IN RE AMENDMENT OF CAPTION -
PURSUANT TO AN AGREEMENT OF COUNSEL REACHED IN OPEN COURT THE
CAPTION OF THE COMPLAINT HEREIN IS AMENDED TO REFLECT THAT THE
PROPER NAME OF THE DEFENDANT IS MANN REALTY ASSOCIATES INC - BY J
WESLEY OLER JR J - COPIES MAILED 8/11/05
-------------------------------------------------------------------
ORDER OF COURT - DATED 8/10/05 - IN RE COMPLAINT FOR DECLARATORY
JUDGMEN - UPON CONSIDERATION OF THE COMPLAINT FOR DECLARATORY
JUDGMENT AND FOLLOWING A NONJURY TRIAL THE RECORD IS DECLARED
CLOSED AND THE MATTER IS TAKEN UNDER ADVISEMENT - PURSUANT TO A
REQUEST OF BOTH COUNSEL BRIEFS SHALL BE SUBMITTED ON THE ISSUES
WHICH COUNSEL PERCEIVE TO EXIST IN THE CASE ON OR BEFORE THE CLOSE
OF BUSINESS ON 8/19/05 - IT IS NOTED THAT NEITHER COUNSEL HAS
REQUESTED THAT A TRANSCRIPT OF THE NOTES OF TESTIMONY BE PREPARED
AND FILED 0 BY J WESLEY OLER JR J - COPIES MAILED 8/11/05
-------------------------------------------------------------------
PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT- BY KIRK S SOHONAGE
ESQ FOR DEFT
PYS511
~
Cumberland County Prothonotary's Office
Civil Case Print
Page
2
2005-00973 BOGAR CHADWICK 0 (vs) MANN REALTY
Reference No. . :
Case Type.....: COMPLAINT
Judgment......: .00
JVdge Assigned: OLER J WESLEY JR
Dlsposed Desc. :
------------ Case Comments -------------
9/23/2005
10/07/2005
10/12/2005
10/17/2005
10/20/2005
10/20/2005
10/21/2005
ASSOCIATES INC
Filed. . . . . . . . :
Time. . . ...... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
2/24/2005
2:23
0/00/0000
0/00/0000
---------------------------------------~---------------------------
ORDER OF COURT - DATED 9/22/05 - IN RE PLFF'S MOTION TO STRIKE A
RULE IS HEREBY ISSUED UPON DEFT TO SHOW CAUSE WHY THE RELIEF
REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 7 DAYS OF
DATE OF THIS ORDER - BY THE COURT J WESLEY OLER JR J COPIES MAILED
-------------------------------------------------------------------
MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE - BY HUBERT X GILROY
ESQ FOR PLFF
-------------------------------------------------------------------
ORDER OF COURT - DATED 10/10/05 - IN RE ACTION FOR DECLARATORY
JUDGMENT - IN RE PLFF'S COMPLAINT AND AMENDED COMLAINT - AND
DEFT'S PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT FOLLOWINGA
NON-JURY TRIAL AND FOR THE REASONS STATED IN THE ACCOMPANYING
OPINION - BY THE COURT J WESLEY OLER JR J COPIES MAILED
-------------------------------------------------------------------
ORDER OF COURT - DATED 10/14/05 - IN RE PLFF'S MOTION TO MAKE RULE
CAUSE ABSOLUTE THE MOTION IS DEEMED MOOT BY VIRTUE OF THE ORDER OF
COURT DATED 10/10/05 IN THE ABOVE MATTER - BY THE COURT J WESLEY
OLER JR J COPIES MAILED
-------------------------------------------------------------------
MOTION FOR RECONSIDERATION OF 10/10/05 ORDER - BY KIRK S SOHONAGE
ESQ FOR DEFT
-------------------------------------------------------------------
PETITION FOR LEAVE TO WITHDRAW - BY KIRK S SOHONAGE ESQ
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT FOR DEFT'S MOTION FOR
RECONSIDERATION - BY HUBERT X GILROY ESQ FOR PLFF
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information *
* Fees & Debits Beq Bal Pvmts/Adl End Bal *
************************************************~*******************************
COMPLAINT
TAX ON CMPLT
SETTLEMENT
AUTOMATION
JCP FEE
35.00
.50
5.00
5.00
10.00
35.00
.50
5.00
5.00
10.00
.00
.00
.00
.00
.00
55.50
55.50
.00
********************************************************************************
* End of Case Information *
********************************************************************************
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Appeal Docket Sheet
Docket Number: 1916 MDA 2005
Page 1 of 2
November 15, 2005
Superior Court of Pennsylvania
-
Chadwick O. Bogar
v.
Mann Realty Associates, Inc., Appellant
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: November 15, 2005
Journal Number:
Case Category:
)c>O)- 973 (JIV;)
Awaiting Original Record
Civil
CaseType:
Related Docket Nos.:
Declaratory Judgment
Consolidated Docket Nos.:
Next Event Type: Receive Docketing Statement
Next Event Type: Original Record Received
SCHEDULED EVENT
Next Event Due Date: November 29, 2005
Next Event Due Date: December 27, 2005
Appellant
Pro Se:
IFP Status:
Appellee
Pro Se:
I FP Status:
COUNSEL INFORMATION
Mann Realty Associates, Inc.
Appoint Counsel Status:
No
Appellant Attorney Information:
Attorney: Sohonage, Kirk S.
Bar No.: 77851 Law Firm:
Address: PO Box 480
Camp Hill, PA 17001
Phone No.: (717)612-9721 Fax No.:
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Bogar, Chadwick O.
Appoint Counsel Status:
Appellee Attorney Information:
Attorney: Gilroy, Hubert Xavier
Bar No.: 29943
Address: 4 N. Hanover Street
Cariisle, PA 17013
Phone No.: (717)243-4574
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Law Firm: Broujos & Giiroy, P.C.
Fax No.: (717)243-8227
11/15/2005
3023
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Appeal Docket Sheet
Docket Number: 1916 MDA 2005
Page 2 of2
November 15, 2005
Superior Court of Pennsylvania
'*
FEE INFORMATION
Fee Date
11/9/05
Fee Name
Notice of Appeal
Fee Amt
60.00
Paid
Amount
60.00
Receipt Number
2005SPRMD001009
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland
Date of Order Appealed From: October 10, 2005
Date Documents Received: November 14, 2005
Order Type: Order Entered
Division: Civil
Judicial District: 9
Date Notice of Appeal Filed: November 9, 2005
OTN:
Judge:
Oler, Jr, J. Wesley
Judge
Lower Court Docket No.: 2005-973
ORIGINAL RECORD CONTENTS
Original Record Item
Filed Date
Content/Description
Date of Remand of Record:
BRIEFS
Filed Date
Docket EntrylDocument Name
DOCKET ENTRIES
Party Type
Filed By
November 15, 2005 Notice of Appeal Filed
Appellant
Mann Realty Associates, Inc.
November 15, 2005 Docketing Statement Exited (Civil)
Middle District Filing Office
11/15/2005
3023
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CHADWICK O. BOGAR, :
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
MANN REALTY, INC,
Defendant
NO. 05-973 CIVIL TERM
IN RE: DEFENDANT'S APPEAL FROM
ORDER OF COURT DATED OCTOBER 10, 2005
AND NOW, this 18th day of November, 2005, the Court having received
notification from the Superior Court that an appeal was filed by Defendant in the above-
captioned matter on November 9,2005, from an order of this court dated October 10,
2005, it is ordered and directed as follows:
I. Defendant is directed to comply with Pennsylvania Rule of
Appellate Procedure 1911 by filing an order directing the court
reporter to produce, certify and file the transcript in this matter;
Defendant is further directed, in accordance with Pennsylvania Rule
Judicial Administration 5000.6, to deposit one-half the estimated
charge for the transcript as a condition precedent to the reporter's
commencement of transcription; Defendant is further directed to serve
the aforesaid order for transcript in accordance with Pennsylvania
Rule of Judicial Administration 5000.5 (see also Pa. R.A.P. 1911);
2. Defendant is directed to comply with Pennsylvania Rule of
Appellate Procedure 906(a) by serving notice of the appeal upon the
undersigned judge and upon opposing counsel, along with copies of
the proof of service showing compliance with the rule; and
3. Pursuant to Pennsylvania Rule of Appellate Procedure 1925(b),
Defendant is directed to file of record and serve on the undersigned
judge a concise statement of matters complained of on appeal no later
than 14 days after entry of this order.
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BY THE COURT,
JIubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
l L_, ,
J. Wesley OIer, lP., J.
C._
,Kirk Sohonage, Esq.
tI P.O. Box 480
Camp Hill, P A 1700 I
Attorney for Defendant \),
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CHADWICK O. BOGAR, :
Plaintiff
v.
MANN REALTY, INC,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
NO. 05-973 CIVIL TERM
IN RE: DEFENDANT'S MOTION FOR
RECONSIDERATION OF OCTOBER 10, 2005 ORDER
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 18th day of November, 2005, upon consideration of Defendant's
Motion for Reconsideration of October 10, 2005 Order, and it appearing that Defendant
has filed an appeal to the Pennsylvania Superior Court from the order in question,
divesting this court of further jurisdiction in the matter, the motion for reconsideration is
,
deemed moot and the matter is stricken from the November 23,2005, argument court list.
BY THE COURT,
Court Administrator
JffIhert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Plaintiff ~
J':irk Sohonage, Esq.
P.O. Box 480
Camp Hill, P A 1700 I
/RObert M. Mumma, II
Box 58
Bowmansdale, P A 17008
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.I. Wesley Ole~, Jr:, J.
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CHADWICK O. BOGAR, :
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
MANN REALTY, INC,
Defendant
NO. 05-973 CIVIL TERM
PETITION FOR LEAVE TO WITHDRAW
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 18th day of November, 2005, upon consideration of the Petition
for Leave To Withdraw filed by Kirk S. Sohonage, Esq., with respect to his
representation of Defendant in the above-captioned matter, and it appearing that
petitioner has filed an appeal to the Pennsylvania Superior Court from an adjudication in
this case, thereby divesting this court of jurisdiction, and it further appearing that
Defendant is a corporation which can not proceed without legal representation, I an order
will not be entered at this time by this court permitting withdrawal by Defendant's
counsel.
BY THE COURT,
~ubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Plaintiff ?
[t~
.LWesley 01
vi
J.
vKirk Sohonage, Esq.
P.O. Box 480
Camp Hill, P A 1700 I
Attorney for Defendant
^
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I See Walacavagev. Exce1/2000, Inc., 331 Pa. Super. 137,480 A.2d 281 (1984).
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.Aobert M. Mumma, II
Box 58
Bowmansdale, P A 17008
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - LAW
MANN REALTY ASSOCIATES,
INC. ,
Defendant
NO. 05-973 CIVIL TERM
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the HONORABLE J.
Wesley Oler, Jr., J., Cumberland County
Courthouse, Carlisle, Pennsylvania, on August 10,
2005, in Courtroom Number One.
ORIGINAL
APPEARANCES:
Hubert X. Gilroy, Esquire
For the Plaintiff
Kirk Sohonage, Esquire
For the Defendant
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FOR THE PLAINTIFF
Chadwick O. Bogar
FOR THE DEFENDANT
INDEX TO WITNESSES
e
DIRECT CROSS REDIRECT RECROSS
10 25 36 38
2
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INDEX TO EXHIBITS
FOR THE PLAINTIFF MARKED ADMITTED
Ex. No. 1 - deed premarked 9
Ex. No. 2 - declaration premarked 9
Ex. No. 3 - e-mail premarked 9
Ex. No. 4 - 1/4/05 letter premarked not admitted
FOR THE DEFENDANT
3
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1 MR. GILROY: Good morning, Judge.
2 MR. SOHONAGE: Good morning, Your Honor.
3 THE COURT: This is the time and place for a
4 nonjury trial in the case of Chadwick O. Bogar, Plaintiff,
5 versus Mann Realty, Inc., Defendant, at No. 05-973 Civil
6 Term. We will let the record indicate that the Plaintiff is
7 present with his counsel, Hubert X. Gilroy, Esquire.
8 Present on behalf of the Defendant is Kirk S. Sohonage,
9 Esquire. This is an action for a declaratory judgment.
10 Mr. Gilroy.
11 MR. GILROY: Judge, good morning. We believe
12 we're going to be able to submit some stipulations to just
13 resolve the evidentiary issues on that, but preliminarily,
14 we noted that the Defendant in the caption is named as Mann
15 Realty, Inc., and the accurate name is Mann Realty
16 Associates, Inc. We would make a motion to have the caption
17 amended to reflect the correct name of Mann Realty
18 Associates, Inc., and my understanding is the defense does
19 not have any objection to that.
20 MR. SOHONAGE: That is correct, Your Honor.
21 We have no objection.
22 THE COURT: All right. We'll enter this
23 order:
24 AND NOW, this 10th day of August, 2005,
25 pursuant to an agreement of counsel reached in open court,
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
.
.
the caption of the complaint herein is amended to reflect
that the proper name of the Defendant is Mann Realty
Associates, Inc.
(End of order.)
MR. GILROY:
Judge, what we would like to
propose, if Your Honor is satisfied with this procedure, is
that I would recite a number of facts and offer a number of
exhibits into evidence, at least three out of four of which
there's no disagreement on. One may be an objection on
relevancy, but I believe Mr. Sohonage would then agree to
certain facts and that we would then submit these facts as a
record for the case for this Court's disposition, and then I
would suggest we would set a briefing schedule and proceed
from there.
THE COURT: All right.
MR. GILROY: The background of this case,
Your Honor, is that the Plaintiff, Chad O. Bogar, purchased
real estate in Upper Allen Township, Cumberland County,
Pennsylvania, pursuant to a deed from Mann Realty
Associates, Inc., to Mr. Bogar dated September 2nd, 2003.
A copy of the deed is Plaintiff's Exhibit Number 1. The
real estate purchased consisted of lot number 6 of Allen
Glen. Allen Glen being a planned community located in Upper
Allen Township.
THE COURT:
How do you spell Allen Glen?
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
e
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MR. GILROY:
THE COURT:
A-l-l-e-n, G-l-e-n.
And you say it is a planned
residential community?
MR. GILROY:
A planned community, is it's
title.
THE COURT: Well, strictly speaking, exactly
what is it?
MR. GILROY:
It's a subdivision of about 23
lots with the -- incorporating the Uniformed Planned
Community Act pursuant to declarations which have been
filed, which we will now refer to.
THE COURT: All right.
MR. GILROY: The real estate purchased, as
indicated, is part of a -- about a 23 lot subdivision which
is subject to a declaration of Allen Glen, a planned
community, which was filed pursuant to the relevant
provisions of the Pennsylvania Uniform Planned Community
Act. This declaration is being filed of record as
Plaintiff's Exhibit Number 2.
The pertinent parts of the declaration --
excuse me. The real estate purchased by Mr. Bogar was
unimproved. It was a vacant lot. The pertinent parts of
the declaration that are at issue would be Section 8.04, and
that would be on page 16 and 17.
In summary, the declarations suggest that a
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1 purchaser of a new lot had one year to commence construction
2 of a residential dwelling on the lot. Mr. Bogar had
3 communications with Robert Mumma, who is the principle of
4 Mann Realty, Inc. -- excuse me, Mann Realty Associates,
5 Inc., and it is Robert M. Mumma, II. He signed the deed,
6 which is Exhibit 1. Mr. Bogar had discussions with
7 Mr. Mumma and attempted to get an extension of the one year
8 time limit within which to commence construction of a
9 residence on the lot.
10 Mr. Mumma and Mr. Bogar then exchanged
11 e-mails, and we'll offer as Plaintiff's Exhibit Number 3 a
12 one page document that basically is an e-mail from Mr. Bogar
13 to Mr. Mumma indicating that Mr. Mumma granted an indefinite
14 extension to build, and then an e-mail from Mr. Mumma back
15 saying, no, it was a two year extension. So in essence,
16 Plaintiff's position is Mr. Mumma granted a two year
17 extension to build.
18 THE COURT: And what is the date of the
19 e-mail?
20 MR. GILROY: June 8th, 2004.
21 THE COURT: All right.
22 MR. GILROY: Our position would be it was a
23 two year extension from the one year deadline. The initial
24 one year deadline would have expired on September -- in
25 September '04. So our position is -- and Mr. Bogar would
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testify to the effect -- that the extension would be from
September '04 through September '06.
THE COURT: Well, is there a stipulation that
that, in fact, was the intention? If not, I would have to
hear from Mr. Bogar or I would have no way of evaluating the
credibility of that claim.
MR. SOHONAGE: I cannot --
THE COURT: You cannot stipulate?
MR. SOHONAGE: I cannot stipulate to that.
THE COURT: All right.
MR. GILROY: All right. Well, then since we
got some in, maybe we'll put Mr. Bogar on for this
particular issue, and maybe for the final issue.
THE COURT: All right. Mr. Sohonage, are you
able to stipulate to all of the facts that Mr. Gilroy
recited so far?
MR. SOHONAGE: Your Honor, as his exhibits
are documents, I'll simply stipulate that they're the best
evidence. They speak for themselves. I believe most of the
facts related to the documents --
THE COURT: Well, there were quite a few
facts in there that I don't know whether they're in the
documents or not.
If we are going to have a stipulation, I
need to be sure that the facts are stipulated to.
MR. GILROY: I'll put them on in testimony
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rather quickly, Judge. I thought we were just shortcutting
it with me reciting what Mr. Bogar would say.
MR. SOHONAGE: With what he said up to the
extension, I can certainly stipulate to.
Up to the extension?
THE COURT:
MR. GILROY:
MR. SOHONAGE:
MR. GILROY:
Up to the Exhibit Number 3.
Exhibit Number 3.
The e-mail, which is where you
stopped me, Judge.
THE COURT: All right.
MR. SOHONAGE: I can stipulate to that, Your
Honor -- to those facts.
THE COURT: And is there an agreement that
those items should be admitted into evidence, that is
Plaintiff's Exhibits 1, 2, and 3?
MR. SOHONAGE: Yes, Your Honor.
objection to that.
I have no
THE COURT: All right.
Plaintiff's Exhibits
1, 2, and 3 are admitted.
(Whereupon, Plaintiff's Exhibits 1, 2, and 3
were admitted into evidence.)
MR. GILROY: Okay, Judge. We'll put
Mr. Bogar on for hopefully some short testimony. Mr. Bogar.
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Whereupon,
CHADWICK O. BOGAR
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GILROY
Q Mr. Bogar, please state your full name and
address for the record.
A Chadwick O. Bogar. My address is 101 Hunt
Court, Hummelstown, Pennsylvania.
Q You were in court, and you heard me recite
some proposed stipulated facts over the past five minutes.
Are those facts correct?
A Yes.
Q Okay. With that background, I'm referring
you to Plaintiff's Exhibit Number 3, which is the e-mail
exchange between you and Mr. Mumma; is that correct?
A Yes.
18 Q And in summary, you had discussions with
19 Mr. Mumma personal discussions on the telephone or in
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person about extending the one year deadline to construct a
home; is that right?
A Yes.
Q And you asked for an extension, and under the
e-mails, as confirmed by Mr. Mumma, you understood you got a
two year extension?
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A Yes.
Q What was your understanding as far as -- and
with respect to requesting the extension, when did you
request the extension from? What was the date it was going
to start?
A Shortly before the e-mail was sent, but
during our discussions I already had one year, pursuant to
the declarations.
Q So you purchased the property in September of
'03, and you had one year to start construction under the
declarations?
A Correct.
Q Okay. And so you thought your one year
expired in September of '04?
A Yes.
Q And when you requested an extension, what
the extension was going to run from when?
A From September of '04, back to the one year
anniversary date of purchase. Then two more years to
were you
September of '06.
Q All right. So when Mr. Mumma e-mailed back
to you in June of 2004 and granted you a two year extension
I believe those are his words in the e-mail -- what did
you understand it to be a two year extension -- from when to
when?
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A From September of '04 to September of 2006.
Q Okay. And you felt under that that you had
until September of '06 to commence construction of a
residence on the lot?
A Correct.
Q
Okay.
Did you ever have any specific
discussions with Mr. Mumma as far as when that extension was
to start?
A When I had asked Bobby for the extension, I
just basically conveyed to him that I didn't have the
resources to commence construction, and he said that I could
do whatever I wanted with the lot, and so -- you know, I
could sell it. I mean we had one year, and it was about
that one year period. It was about to expire, and my
understanding was that it was two years from that date.
Q So based upon an extension, you understood it
was going to extend the deadline date?
A Yes.
Q From September to two years from that
September?
A Yes.
Q Not from the June time when you originally
when you had the e-mails or had the discussion?
A No. But at that time I still had three more
months to commence building.
So I just -- my understanding
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was -- my intention was that it would be two years from
September of '04.
Q Okay. Now, subsequent to June of 2004, did
you then try to sell the property?
A Yes.
Q And is there also a provision in Section 8.4
with respect to your ability to sell the property?
A Yes.
Q During your attempts to sell the -- excuse
me. Did you enter into an agreement to sell the property to
a Dr. Jeffrey and his wife Melinda Mandak, M-a-n-d-a-k?
A Yes.
THE COURT:
MR. GILROY:
THE COURT:
How do you spell Jeffrey?
J-e-f-f-r-e-y.
Thank you.
BY MR. GILROY:
Q Were the Mandaks represented by Attorney Andy
Sheely?
A Yes.
Q In summary, was that transaction aborted?
A Yes.
Q And what was your understanding as to why it
was aborted?
A Originally Mr. -- or Bobby, Mr. Mumma, had
indicated that he wanted to repurchase the lot at the time
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of settlement and then convey the lot and sell it directly
to the Mandaks.
Q Okay. Let's back up. There is a provision
under Section 8.4 where the declarant -- and for purposes of
this hearing when you say Mr. Mumma you're referring to Mann
Realty Associates?
A Yes, yes.
Q And that's also the same as the declarant,
all the same entity?
A Yes.
Q So the declarant, under the declarations, has
the ability to buy the real estate back if you don't
commence construction in one year; is that right?
A Yes.
Q
Okay.
So after June of 2004, when you had
the two year extension, you marketed the property for sale?
A Yes.
Q Mr. Mumma tells you he wants to buy the
property back?
A I had written Mr. Mumma a letter in December
after I learned of the sales agreement.
Q December of 2004?
A Yes. I'm sorry, December 2004, asking if he
were going to -- I mean my interpretation on the provision
was I had no intention of building, he could exercise his
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option to repurchase it. He eventually said no, but what he
wanted
THE COURT: He said no what? He didn't agree
with you of your interpretation or he didn't want to
repurchase it?
THE WITNESS: He didn't want to repurchase
the lot, Your Honor.
Instead what he wanted was --
MR. SOHONAGE: I'm going to object to
hearsay, Your Honor.
THE COURT: From Mr. Mumma?
MR. SOHONAGE: I think he's going to testify
about what Mr. Mumma wanted.
THE COURT: Why don't you just say what he
said?
THE WITNESS: There's a letter from counsel,
and I don't think it was Kirk Sohonage. I think it was
Daryl Christopher, but basically that he had no intention of
purchasing the property, but that his ownership interests
would continue through the property, and continue after the
sale. And Andy Sheely had written a letter to my counsel,
Mr. Gilroy, indicating that the provision itself is
unacceptable.
MR. SOHONAGE: I'm going to object to this
any testimony about this letter or what Mr. Sheely opines
with regard to this issue. I think it's irrelevant, and I
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1 think it's certainly hearsay, Your Honor.
2 MR. GILROY: Your Honor, so you know where
3 we're going
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THE COURT: Well, wait. There's been an
objection.
MR. GILROY:
I haven't offered the letter
yet.
THE COURT: Do we have a copy of the letter?
MR. GILROY: Yes.
THE COURT: Why don't we just introduce a
11 copy of the letter?
12 MR. GILROY: We've premarked this letter as
13 Plaintiff's Exhibit Number 4, Judge, which is a January 4,
14 2005, letter from Mr. Sheely to me.
15 MR. SOHONAGE: I'll maintain the same
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objection.
THE COURT: What's your objection to this
item?
MR. SOHONAGE:
First of all, I believe it's
hearsay, Your Honor.
It's a letter from Mr. Sheely to
Mr. Gilroy. Secondly, I believe it's not relevant to the
issue. In this letter basically Mr. Sheely opines what he
thinks is at issue here and offers his opinions, and
well, he is an attorney, but I submit it's an expert
opinion, and there's no qualifications at this point.
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THE COURT: Well, I certainly would not
consider the contents of the letter for the truth of any
the correctness of any opinion expressed in it.
I think
Mr. Gilroy is simply trying to show that this transaction
fell apart because of the claim, whether meritorious or not,
that Mr. Mumma had. For that limited purpose, do you have
any objection to the letter?
MR. SOHONAGE: Well, the letter says a lot
more than that, Your Honor. If it's for the limited purpose
that the deal fell through, I think Mr. Bogar's already
testified to that.
MR. GILROY: Well, I'm offering it, Judge,
and we have pled in our pleadings that the restriction in
question, Section 8.04, has created a cloud on the title,
and we're offering this letter in support of that. We agree
it's Mr. Sheely saying we have problems with the title as a
result of this restriction. We agree with the Court's
analysis that it's not hearsay. We're not offering it to
prove that it's true.
We're just offering it to prove that
attorneys and potential purchasers feel there's a cloud on
the title. Whether there is or not, that's up to Your Honor
to decide, and that's hopefully what we're going to resolve
in the case, but we just want to demonstrate that
Mr. Bogar's having difficulty selling the property because
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of the questionable terminology of Section 8.04, and thereby
that provision creates a cloud in the title and limits his
ability to sell it.
MR. SOHONAGE: Your Honor, I think Mr. Bogar
can certainly address that, and I believe he has. The
problem with this letter, Mr. Gilroy keeps saying it's not
introduced for the truth of the matter. Frankly, I think it
is. I think they're introducing it to show that attorneys
believe that the fact is there is a cloud on this title or
people believe there's a cloud on this title. So I submit
they are introducing this for the truth of the matter. The
testimony that Mr. Gilroy says it's to elicit, I think it
clearly could come from Mr. Bogar.
THE COURT: All right. The objection is
sustained.
MR. SOHONAGE: Thank you, Your Honor.
THE COURT: You'll have to bring this out
through Mr. Bogar.
MR. GILROY: Okay.
BY MR. GILROY:
Q Mr. Bogar, from your discussion -- did you
have any personal discussions with Attorney Sheely or the
Mandaks?
A Yes. Well, Mr. Sheely, not the Mandaks.
Q All right. And from your understanding, is
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there a problem with the title on the property as a result
of this Section 8.04, and is it limiting your ability to
sell the property?
A Yes.
MR. SOHONAGE: I'm going to object on
foundation grounds. I mean if his understanding is based on
hearsay, I'll object on foundation.
BY MR. GILROY:
Q Well, did somebody tell you they won't
certify the title because Section 8.04 is creating a cloud
on it?
A Yes.
MR. SOHONAGE: Objection again. Your Honor,
I mean --
THE COURT: The objection is sustained.
MR. SOHONAGE: Thank you.
BY MR. GILROY:
Q
Have you been having trouble selling the
property?
A
Q
A
Q
A
Yes.
Why?
Because of Section 8.04.
Okay. Is that because of interpretations?
Yes. I think it creates a cloud on the
title.
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Q Okay. Subsequent to the deal with the
Mandaks falling through, did you further evaluate the
provisions of Section 8.04 relative to the open ended
ability of the declarant to exercise an option to purchase
the property?
A Yes, I have.
Q And in summary, does Section 8.04 basically
give the declarant after one -- after one year, if you don't
build on the property, or if you don't build within any
extension period, Section 8.04 essentially says the
declarant can repurchase the property at the original
purchase price; is that right?
A Yes. At any time.
Q Any time?
A
It's open ended.
It's forever.
Q There's no time limitation at all?
A No.
Q So you could -- from your reading of
Section .04, you could hold the property for 40 years and
the declarant could exercise an option to repurchase it for
$200,000?
A Yes.
Q And is there any provision in there relative
to the declarant waiving that right -- excuse me.
Is there
any provision that if you sell it to somebody else the
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declarant's rights are waived?
A No.
Q So if you sold the property, the declarant
could still come in, under the agreement, and redemand that
the new buyer repurchase the property -- sell the property
back?
A Yes. That's the declarant's position.
Q At 200,000?
A Yes.
Q And do you feel that that provision violates
the rule against perpetuities?
A Yeah.
Q From what you understand it to be?
A
I'm a lawyer too, and absolutely.
I had no
-- until I heard this theory, I read that provision a
hundred times, and never once thought that that is what it
was, that you could come in at any time, and you know, I
have an offer on the table for $300,000, and he can say,
okay, well, you know, you can go ahead and sell it, but
they're subject to -- you know, they're under my thumbnail,
so to speak.
Q And it could be repurchased for two hundred
thousand?
A Yes.
Q
Okay.
Simply because a home is not built on
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the property within one year or within some extension?
A Yes.
Q
Okay.
So in summary, are you asking this
Court to declare that you had an extension to build on the
property pursuant to an agreement with Mr. Mumma until
September of 2006?
A
Yes.
Q And do you want to be able to assign that
extension if you sell the property to somebody else?
A Yes.
Q So if you sold the property to somebody next
week, you want that entity or individual to have the ability
to assume your extension through September of 2006?
A Yeah. Otherwise I can't sell it. I mean
somebody would have to take a very substantial risk.
Q Okay. And finally, are you asking the Court
to declare that the options provision under Section 8.04 are
void under the rule against perpetuities?
A Well, that and the comment to the section
itself says that -- or reads that it doesn't apply to the
deeds.
Q Well, the specific relief you're asking the
Court for is three things?
A Yes.
Q Extension through September of 2006, the
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ability to assign the extension, correct?
A Yes.
Q And a declaration that the option is void
under the rule against perpetuities?
A Yes.
Q That's the third thing. If the Court
declares the provision -- the option is void under the rule
against perpetuities, do you agree the Court doesn't have to
address the other two issues?
MR. SOHONAGE: I'm going to object to the
question. It asks for a response that calls for expertise.
It calls for speculation too. If the Court does something
and he's going to speculate on how he proceeds, Your
Honor -- I'll object.
MR. GILROY: We're just stating what our
requested relief is, Judge. We're saying if you rule on one
particular item, we are saying that you don't have to rule
on the other two. Whether that's accurate or not, we just
want you to know.
THE COURT: All right.
For the limited
purpose of indicating what they are requesting, do you still
have an objection?
MR. SOHONAGE: I'll withdraw the objection.
THE COURT: All right.
MR. GILROY: No further questions, Judge.
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THE COURT: Mr. Bogar, are you an attorney in
Pennsylvania now?
THE WITNESS: Yes, I am.
THE COURT: A practicing attorney?
THE WITNESS: Yes.
THE COURT: And what is your relationship, if
any, with Mr. Mumma? Do you have any family relationship?
THE WITNESS: I did, Your Honor. He was my
uncle-in-law up until the divorce decree that was executed
by this Court in November of last year.
THE COURT: So you were married to his niece?
THE WITNESS: Yes, Your Honor.
THE COURT: I see. And when you -- when you
were discussing with Mr. Mumma this extension of the one
year period, was he aware or not aware that you intended to
sell the property?
THE WITNESS: Yeah, as a matter of fact, he
was because he said -- I had an idea at the time of building
a spec home on the property and then selling the spec home,
and Bobby had said, well, that may not be the best idea
because there's a lot of profit built into the spec home
that you will never see, but then he said, I could do
whatever I wanted with the lot. That's when I had written
him.
I wanted to confirm we had the extension to commence
building in the event that I wanted to build sometime down
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the road or do whatever.
THE COURT: And this Mann Realty Associates,
Inc., I assume that's a corporation of some kind?
THE WITNESS: Yes, Your Honor.
THE COURT: Is it a business corporation?
THE WITNESS: Yes.
THE COURT: And do you know who the
stockholders are?
THE WITNESS: No, Your Honor. My
understanding is is that Bobby -- Mr. Mumma's the sole
stockholder, but I don't know.
THE COURT: All right. Mr. Sohonage.
MR. SOHONAGE: Thank you, Your Honor.
CROSS EXAMINATION
BY MR. SOHONAGE:
Q Just briefly, Mr. Bogar -- and I think we've
stipulated to a lot of the issues. Let me first ask you,
you are an attorney, obviously, so when you read the
declarations initially before purchasing the property, did
you have any reservations about 8.04?
A Actually I was represented by counsel at that
time, James Miller, but certainly -- I mean it never came up
with him nor me.
Q So you entered this having read it, but you
didn't have any reservations at that time?
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A No. My reading was obviously different from
Mann Realty's reading.
Q Did Mr. Miller express reservations to you?
A No.
Q Now, at some point in time you testified with
Mr. Gilroy you had conversations with Mr. Mumma about an
7 extension; is that correct?
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A Yes.
Q And I can assume this is sometime in the late
spring, early summer of 2004?
A I believe so.
Q In fact -- I'm sorry.
A Go ahead. I just can't recall exactly.
Q In fact, your first e-mail, at least
regarding Exhibit 3, to Mr. Mumma was dated June 4th, 2004?
A Yes.
Q
All right.
So you had had discussions
leading up to your e-mail?
A Oh, yes.
Q Okay. And your discussions entailed your
belief that this was an indefinite extension?
Yeah.
He said I could do whatever I wanted
A
with the lot.
Q Did your discussions entail the fact that the
extension was to run from September 2nd, 2005 -- or 2004
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until September 2nd, 2006?
A As you know, Bobby's well versed in
extensions and litigation and all of that, and I didn't feel
I had to get into that. When we were representing Bobby, if
we asked for an extension for a pleading to be filed or what
have you, it was from the date that we had already been
given. For example -- I'm sorry.
Q My question was, did you have discussions
with Mr. Mumma that the extension was going to go from 2004
to 2006?
A No.
Q All right. So you sent this e-mail on the
4th of June. You said this constitutes written confirmation
that you granted to Carter -- now Carter is your ex-wife,
his niece?
A Yes.
Q To Carter and me an indefinite extension of
time to commence building on my lot in Allen Glen. You
agree that that's what was sent on the 4th of June?
A Yes.
Q And then on the 8th Mr. Mumma responds, it
was a two year extension period, not an indefinite period;
is that correct?
A Yes.
Q So at that point your understanding with
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Mr. Mumma about this extension was not agreed to. You
believed it was indefinite, and he comes back and says,
it's not indefinite, it's two years?
no,
A Right.
Q And there's a possibility that your
understanding of when the extension ran was not agreed to
either?
A Anything's possible.
Q So there's a possibility there was no meeting
of the minds with regard to this extension at all?
A No. I can't go there. I mean --
Q Do you know
THE COURT: Let him finish his answer.
THE WITNESS: I mean I have no idea what
I mean he's not even here today.
Bobby was thinking.
BY MR. SOHONAGE:
Q Sure.
A But, you know, he's a fairly sophisticated,
bright guy, and I honestly believe that it was from two
thousand or from September of 2004.
Q All right. You believe that, but you have no
evidence, and I think you just testified, you don't know
what Mr. Mumma thought?
A No.
Q And you thought one thing, and you don't know
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what he thought?
A
I have never been able to figure that
No.
one out.
Q So I mean there's a possibility that you guys
weren't thinking the same thing, is the bottom line?
A It must be because that's his position now.
Q Okay. So there's a possibility that there's
no meeting of the minds, is what I was coming to?
A Yeah.
Q Now, with regard to the rule against
perpetuities, when did you first come to the conclusion that
8.04 or the declarations in whole violated the rules against
perpetuities?
A Actually, I can tell you, it was very clear
to me, I had filed an action with this Court once I learned
that Bobby was not going to purchase the lot back
Mr. Mumma was not going to purchase the lot back from me.
Instead, his position had changed to my ownership interests
continues to the next buyer. So I was fairly stunned by
that.
Q So when --
THE COURT: When you say my ownership
interests, you mean Mr. Mumma's interests?
THE WITNESS: Yes, Your Honor.
THE COURT: All right.
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BY MR. SOHONAGE:
Q When did you first come to the conclusion,
was my question? I mean, do you recall a time period?
A Well, when the deal fell through.
Q So we're talking December of 2004 is when you
first came to this conclusion?
A Possibly, yeah.
Q All right. If it's your belief that the
extension does not expire until 2006, then under the
declarations, you would agree that Mr. Mumma has until that
time period to buy this property back from you because you
conceivably could begin building within the next year and a
month?
A No, I don't believe so because -- my position
is he's waived that. He had his chance, and now he has
said, it's in writing, he doesn't want to repurchase the
lot, what he wants is the difference between the offer and
what I paid for the lot.
Q He waived it by doing what?
A He never exercised it the first time.
Q Well --
A The deal fell through.
Q At some point you kept referring to this as a
right of first refusal, did you not, in letters to my
office?
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Yes.
And, in fact, this is not a right of first
refusal?
A No, no. I've come to find out later from my
counsel that it's probably not. It's more kin to an option.
Q But it's your position that even though you
have a year and a month
if you're correct with the
extension date, you have a year and a month to complete
or commence building, it's your position that Mr. Mumma has
to buy it back from you now or you must have the authority
to sell it without his right to buy it back going to the
purchaser?
A If I understand your question correctly, the
problem with that is no one will buy the lot from me. I
mean once they learn of this litigation -- once they learn
Bobby's position -- I mean I can't look somebody in the eye
and say that he's not going to come after them after I sell
the lot.
Q
Okay.
Let me ask you this.
If you're
correct on the extension date, and it expires 2006, and as
Mr. Gilroy suggested perhaps you sell it next week to a
purchaser, it is your position that that purchaser then
would -- should maintain your extension and should have the
ability to begin building within a year and three weeks?
A Right. There's no assignment provision in
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the declarations. As you know, we were working with
Mr. Sheely to hammer something out with the Mandaks. You
started putting that language in it, and it's not
assignable. My position is that if I sold the property
tomorrow, whoever purchases the property from me will have
to commence construction, plans approved, building permit,
and commence the construction by September of '06.
Q But your position is not that Mr. Mumma would
have the ability to come in and repurchase if they don't
begin building?
A No, no.
Q Now, if a lot was purchased by somebody else
or excuse me, strike that. If another lot was purchased
by a buyer, that buyer would have one year to commence
building?
A If someone bought a lot other than mine, a
lot owned by Mann Realty in that subdivision, Allen Glen,
they would have one year from the date of closing to
commence construction.
Q And -- but the deal from Mr. Mumma to be able
it repurchase it would still exist with the new purchasers?
A If they don't commence construction.
Q Within that one year?
A Right. After that one year period passes,
say it's one year and one day from the date of purchase,
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yes, he could come In and either offer to buy it back or
not.
Q But basically the same deal you had would be
with any new purchaser of any other lot?
A Correct.
Q But you're asking that this Court, with your
lot, that you should be allowed to transfer it and that
Mr. Mumma has no rights to transfer along with your
assignment of an extension?
A Right. He had that opportunity, and he
didn't do it, and he came up with the -- this new theory
where ownership interests survive the sale, and therefore,
the deal just fell apart.
Q Well, you say a new theory. You disagree
with this position?
A
Wholeheartedly.
I mean that property's --
you could never sell it.
Q Well, you stated that in your complaint, you
could never sell it. Actually you could sell it. You're
not going to be able to sell it maybe for the price you
want; is that correct?
A I can't imagine -- I mean especially having
dealt with Andy Sheely, I can't imagine anyone wanting to
buy that lot from me knowing that if they don't -- unless
there's a house on it that they've completed, Mr. Mumma
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could come and take it away.
Q If you sold the property -- strike that.
What did you pay for this property, Mr. Bogar?
A $200,100.
Q If you sold the property for $200,100, and
the assignment transferred Mr. Mumma's ability to come in
and repurchase the transfer, then the perspective buyer
would not lose anything out other than what they paid. He
would repurchase it at the same price; isn't that correct?
A Well, that's not Mr. Mumma's position. His
position is that if I sell it to someone let's just use
another 250, as we discussed yesterday. That if he
exercised his option -- if they didn't commence building
within that one year period or the date of the expiration of
my extension, he could buy it back for the price that I paid
for it.
Q
My question to you was if you sell it for the
exact price you paid for it, then the perspective purchaser
doesn't lose any money. That was my question.
A Well, that's not necessarily true because
they're going to be paying title
going to do their due diligence.
door.
insurance, taxes, they're
All that money's out the
Q Other than costs and fees associated with it,
they're not going to lose any other money; is that correct?
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A Correct.
Q So your contention that you can't sell the
property, and your contention in your complaint that he's
prohibiting you or stopping you from selling the property is
not correct?
A I don't agree with that, no.
Q You can't sell the property for the amount
you think you should be able to sell it for. Have you tried
to sell the property for what you actually paid for it?
A Yes, I have.
Q $200,100?
A
I listed -- the sale to the Mandaks was
No.
for $212,000, and that $12,000 was basically realtor fees.
Q And basically it's your position you want to
get out of this thing, right? Putting it as plain and
simply as you can?
A This is my --
MR. GILROY: We'll stipulate to that.
THE WITNESS: Without getting into it, Your
Honor, this is my last to tie to Mr. Mumma, and I would be
the happiest person in the world if I had -- if I were able
to settle this once and for all.
MR. SOHONAGE: That's all I have.
THE COURT: All right. Mr. Gilroy.
35
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1 REDIRECT EXAMINATION
2 BY MR. GILROY:
3 Q Mr. Bogar, you purchased the property for
4 $200,000. Did you take out a loan?
5 A Yes, I did.
6 Q Are you paying monthly payments on that?
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A
Yes, I am.
Q Which include interest?
A Yes.
Q So the longer this drags out that you can't
do something with the property, you're losing money
basically?
A Oh, yeah. I've lost about $8,000 in interest
fees, and probably another $1500.00 in tax fees as a result
of the falling apart or the crash of the deal with the
Mandaks.
Q Now, from your understanding, if Mr. Mumma's
position is correct, and you get the extension, and the
extension's assignable, if you sell the property, the new
buyer has to start construction before September of 2006?
A Oh, absolutely.
Q Okay. If you don't sell the property, after
2006, what's your understanding as far as what Mr. Mumma
could do?
A He can buy -- he can buy it back from me.
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Q At any time?
A Any time.
Q
Okay.
So there's -- under the agreement --
there's nothing in the agreement saying he has to buy it
back within a certain time?
A
No.
It's wide open. There are no
restrictions.
Q What's the life of your mortgage?
A Actually my mortgage expires -- I have to do
a balloon payment in February or March of '06.
Q Okay. Well, let's say you own this property
and it continued on for 15 years and it appreciates in
value?
A Yes.
Q To $300,000. What's your understanding of
Mr. Mumma's position relative to his ability to buy it back?
A He can buy it back at any time.
Q At $200,000?
A At 200,000.
Q Okay. And is that where you feel that
there's a problem with the rule of perpetuities?
A
The rule, and it's just unconscionable.
I
mean there is a section of the Planned Community Act that
basically says the Court can strike a provision that's
unconscionable. Basically I'm paying all of the costs and
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this mortgage on the property for $200,000, so I'm paying a
portion of that. I'm paying the taxes, and then he can come
in and just take it back.
Q But there's no time limits within which he
has to exercise this option?
A No.
Q So if 10 years from now you got a buyer who
was going to buy it, your understanding is Mr. Mumma could
step right in and take the property?
A Yes.
Q Under the language of the declaration?
A Yes.
Q Okay. And that's your problem?
A That's my problem.
MR. GILROY: Nothing further.
THE COURT: Mr. Sohonage.
MR. SOHONAGE: Just to follow up briefly.
RECROSS EXAMINATION
BY MR. SOHONAGE:
Q Mr. Bogar, if you sell the property, and the
extension is assignable, then I think we agree your position
is any purchaser would have to begin building by September
2006?
A Correct.
Q And complete then by September 2007?
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A Correct.
Q If that builder fails to commence -- begin
commencement in September of 2006, fails to complete
building in 2007, then your position is Mr. Mumma has no
rights to do anything; is that correct?
A Yeah. Because I think the provision itself
is violative of the rule against perpetuities, as well as
just unconscionable.
Q So basically if it's sold and you're allowed
to sell it as assigned, then Mr. Mumma loses all rights that
have been set forth in the declarations?
A Well, if that declaration is voided, that
Section 8.04 is voided, I believe so.
Q So he has no remedy available if somebody
chooses to sit on this property for the rest of his life?
A Well, he does have a remedy. You know, just
like with me, he could -- I gave him the option to
repurchase it.
Q No. I meant of a subsequent purchaser.
A No. I think a subsequent purchaser -- let's
just say that my assignment's good and I assign it, and we
don't get into the other issues, then I think he does have
his remedy that's there. The problem with that --
Q What is that remedy?
A The remedy is to repurchase at some point.
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Q From the subsequent purchasers?
A I would think so. And if the Court upholds
the provision is fine and sound, and my assignment's good, I
think -- if that's what your saying? Is that what you're
asking me?
Q Your assignment's good -- my question was
following your position that the assignment should be able
to occur, but Mr. MUITill\a's rights would not transfer with the
assignment?
A Well, no, because he gave me an extension to
commence building.
Q Okay. So if his rights don't transfer with
the assignment, my question is if these people don't build
or don't start building or finish building, he has no
rights. He can't do anything.
A Oh, that's not accurate.
Q What are his rights then?
A If my assignment's good, and we don't get
into the issue of 8.04, then he still has the ability to
repurchase.
Q If the assignment's good, and he has the
well, where does his ability to repurchase come from?
Strike that. Let's take your position. I mean your
position through the course of this matter has been you
believe you should be able to assign, correct?
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A Yes.
Q And that Mr. Mumma's rights should not pass
with that assignment? His rights to repurchase at the price
that you paid should not pass with that assignment?
A No. That's not what I'm saying.
Q All right. Tell me what your position is
because I thought the whole testimony was that.
A In the complaint we're asking for three
things. That the provision, in short, is violating the rule
against perpetuities. The second position, as Mr. Gilroy
said, is that I was given an extension to two thousand --
September of 2006, and the thirdly, that I may assign that
extension to a subsequent purchaser, and that subsequent
purchaser would step into my shoes, as if I were bound by
it would be me.
Q So your position is he should be able to
assign and Mr. Mumma's interest in this property goes along
with the assignment?
A Well, yeah.
Q Okay. Because I thought the whole time here
you kept talking about Mr. Mumma's interests not moving.
MR. GILROY: In the alternative, Your Honor,
as indicated
THE COURT: No, no. You can't interrupt the
cross examination. We'll consider your argument during the
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argument.
BY MR. SOHONAGE:
Q All right. So your position is now you
should be able to assign the property, and Mr. Mumma's
property interest will transfer so that if these people
don't start building in 2006, your position is Mr. Mumma can
come in -- his remedy is he should be able to come in and
buy the property back if they don't commence building in
2006; is that correct?
A That's correct
Q At what price --
THE COURT: Let him finish his answer and
then you can ask the next question.
THE WITNESS: If the Court upholds the
provision and says it is sound, Mr. Mumma's rights clearly
would go -- would follow the sale of my property, and my
extension would follow through.
BY MR. SOHONAGE:
Q Okay. At what price do you believe -- if his
property rights transfer, what price -- when the subsequent
purchasers don't commence building in 2006, what price do
you believe he should be able to repurchase it? At the
price that you paid for it then; is that correct?
A I believe that's our position.
Q Well, that's what the whole deal was that was
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set up in December of 2004, right? The Mandaks would buy it
at $212,000, and if they didn't begin building within a year
then Mr. Mumma could buy it back at 200,000, or whatever you
paid for it. Wasn't that the deal we had set up?
A That is the deal that was set up, but then
Mr. Sheely became very concerned about the provision of 8.04
and didn't want his clients to be bound by that.
Q Okay. But your position is you believe the
assignment should transfer and that the property interest to
Mr. Mumma should transfer? That's your position?
A
And that's our alternative position.
If the
Court upholds the validity of 8.04 --
Q Well, I'm asking your position. I mean so
basically you have either position, it's either it should or
it shouldn't?
A
Right.
I mean if the provision's no good, we
don't even go to the second issue. I mean why
Q I mean so basically you're just
we're
going to throw this to the Court and say you decide, and
that's what the declaratory action is?
A Correct. At least my understanding of it.
Q So if the Court says you can assign, then you
believe the Court should also say then Mr. Mumma's rights
move with the assignment?
A Well, I mean I can't speak for the Court.
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Q Sure.
A But the Court may say you can void -- if the
Court voids 8.04, my assignment could say it's irrelevant.
Q But we're going to leave it to the Court?
A Correct.
MR. SOHONAGE: No further questions.
MR. GILROY: No further questions.
THE COURT: You may step down. Thank you.
Mr. Gilroy, do you have anything further?
MR. GILROY: We just move for the admission
of Exhibits 1, 2, and 3, Judge.
THE COURT: They were already admitted.
MR. GILROY: And we have nothing further.
We rest.
THE COURT: Mr. Sohonage.
MR. SOHONAGE: I believe they were admitted.
If they weren't, I have no objection. We have nothing to
put on at this point, Your Honor. I would simply ask for an
opportunity to brief the issue of whether this matter is
assignable for the rule against perpetuities.
THE COURT: All right. Mr. Gilroy, do you
have any objection to that?
MR. GILROY: No, Judge. We would simply ask
for somewhat of an accelerated briefing schedule. As you
can see, Mr. well, one of the practical problems is if
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Your Honor determines that this
first of all, if Your
Honor determines this provision is violative of the rule
against perpetuities, then we don't even need to go to the
assignment or anything like that. We're done, as far as
we're concerned.
But if Your Honor doesn't make that decision,
and we still are addressing the -- the date of the two year
assignment and whether -- excuse me. The date of the two
year extension, and whether it can be assigned, the clock's
running on that right now.
So as a practical matter, we need to, if we
can, try to expedite that so that Mr. Bogar knows what his
rights are, and any potential buyer would know where they
would stand. So we're suggesting if we can present a brief,
both parties present a brief by next Wednesday, so just cut
it down to a one week briefing schedule and move forward.
THE COURT: Mr. Sohonage, is that sufficient
18 time for you?
19 MR. SOHONAGE: Well, I would ask for at least
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until next Friday, but whatever the Court orders I will
comply with, Your Honor.
THE COURT: So you would be satisfied with a
briefing schedule that calls for briefs to be submitted by
August 19th?
MR. SOHONAGE:
If that is next Friday, Your
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Honor, that's appropriate with me. Yes, sir.
MR. GILROY:
THE COURT:
We'll live with that, Judge.
All right. And did either
counsel wish the transcript be prepared?
MR. GILROY:
I don't need a transcript.
MR. SOHONAGE: No, sir, Your Honor.
THE COURT: All right. We'll enter this
order:
AND NOW, this 10th day of August, 2005, upon
consideration of the complaint for declaratory judgment
filed in the above-captioned matter, and following a nonjury
trial, the record is declared closed, and the matter is
taken under advisement.
Pursuant to a request of both counsel, briefs
shall be submitted on the issues which counsel perceive to
exist in the case on or before the close of business on
Friday, August 19, 2005.
It is noted that neither counsel has
requested that a transcript of the notes of testimony be
prepared and filed.
(End of order.)
MR. SOHONAGE: Thank you, Your Honor.
THE COURT: Court is adjourned.
(Whereupon, the proceedings concluded at
10:23 a.m.)
46
e
e
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
~~'
chele A. Eline /]
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
'1--1 () v \"6) ,I) to ~
Date
(1)/ (-
{/U L-, /'
J Wesley 0 er, J , J.
inth Judicial District
47
CHADWICK O. BOGAR, :
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
MANN REALTY
ASSOCIATES, INC.,
Defendant
NO. 05-973 CIVIL TERM
ORDER OF COURT
AND NOW, this 29th day of November, 2005, upon consideration of the Notice of
Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa.
R.A.P, 1925(b), to file of record in this Court and to serve upon the undersigned judge a
concise Statement of Matters Complained of on Appeal no later than 14 days after entry
of this Order.
BY THE COURT,
I
",. ;:,../~ .'\ t,,, ,~. i /L
J. Wesley Oler, Jr':, J.
flubert X, Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
1/
~
.,..Kirk Sohonage, Esq.
P,O. Box 480
Camp Hill, PA 1701 I
Attorney for Defendant
:rc
),
\ =8 .~ GZ "1" SUUZ
..1'
_,'J
. ;
~
Kirk S. Sohonage, Esq.
P.O. Box 480
Camp Hill, PA ]7001-0480
Pa. J.D. No. 7785]
(724) 880-7285
CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No. 2005-973
MANN REALTY ASSOCIATES,
INC.,
CIVIL ACTION - LAW
Defendant
CONCISE STATEMENT OF MATTERS
COMPLAINED OF ON APPEAL
AND NOW, comes the Defendant, Mann Realty Associates, Inc., and files this
Concise Statement of Matters Complained of On Appeal, required by Order of Court,
dated November 18,2005, pursuant to Pa.R.A.P. I 925(b), and in support thereof avers
the following:
I. The trial court erred in finding that a valid contract existed between the
parties.
2. The trial court erred in finding that Plaintiff could assign extension of
contract to a third-party grantee.
Filed: December 2, 2005
RESPECTFULLY SUBMITTED,
f-( M-4 ? >o-~~ E=.':J- Y II.
Kirk S. Sohonage, Esq. (77851)
P.O. Box 480
CampHill,PA ]7001
(724) 880-7285
Attorney for Mann Realty Associates, Inc.
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.
CERTIFICATE OF SERVICE
[, Daryl E. Hewitt, hereby certify that on December 2, 2005, [ served a true and
correct copy of the foregoing Concise Statement of Matters Complained of On Appeal
upon the following addresses:
The Honorable J. Wesley Oler, Jr.
Cumberland County Courthouse
One Courthouse Square
Carlisle, P A 17013
(By Hand Delivery)
Hubert X. Gilroy, Esq.
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
(By First Class Mail, Postage Prepaid)
Date: December 2, 2005
YcyC ~::/~~:71
Daryl E. Hewitt I
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CHADWICK O. BOGAR,: IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MANN REALTY
ASSOCIATES,INC,
Defendant
NO. 05-973 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, .T., December 13,2005.
In this contract case, Defendant has appealed from an order, entered
following a bench trial, granting Plaintiff declaratory relief. The grounds for the
appeal have been expressed in Defendant's statement of matters complained of on
appeal as follows:
I. The trial court erred in finding that a valid contract
existed between the parties.
2. The trial court erred in finding that Plaintiff could assign
extension of contract to a third-party grantee.]
The order of court from which Defendant has appealed was accompanied
by an opinion which set forth the court's rationale on the issues being pursued on
appeal. Accordingly, the record does not require supplementation and the
prothonotary is requested to transmit the same to the Pennsylvania Superior Court
for disposition of the appeal.
BY THE COURT,
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I Defendant's Concise Statement of Matt rs Compla'rned of on Appea!, tiled December 2, 2005.
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vflubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
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Airk Sohonage, Esq.
P.O. Box 480
Camp Hill, PA 17011
Attorney for Defendant
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Chadwick O. Bogar
IN THE SUPERIOR COURT
OF PENNSYLVANIA
v.
(C.P. Cumberland County
No. 2005-973)
No. 1916 MDA 2005
Filed: December 36 ,2005
()5 - r7.3 ~~.
Mann Realty Associates, Inc.
ORDER
This appeal has been taken from the nonjury verdict entered
October 12, 2005.
To preserve issues for appeal, parties are required to file post-
trial motions following a verdict entered after a trial in law or equity.
See Pa.R.A.P. 302(a); Pa.R.C.P. 227.1; Motorists Mutual
Insurance Co. v. Pinkerton, 830 A.2d 958 (Pa. 2003); Chalkey v.
Roush, 805 A.2d 491 (pa. 2002). See also Baughman v. State
Farm Mutual Automobile Insurance Company, 656 A.2d 931 (Pa.
Super. 1995) (quashing appeal from verdict so that trial court could
rule on pending post-trial motions).
Appellant represents that it filed a post-trial motion that was
erroneously labeled as a motion for reconsideration. Although it is not
clear at this time whether that motion constituted a proper motion for
post-trial relief pursuant to Pa.R.C.P. 227.1, the docket indicates that
the trial court deemed the motion to be moot due to the pendency of
this appeal. Accordingly, the above-captioned appeal is hereby
QUASHED.
Per Curiam
TRUE COPY FROM RECORD
Attest: DEe 3 0 2OO~
~;/E.:~ If.~
Deputy Prothonotary
Superior Court of PA - Middle District
I .
No. 1916 MDA 2005
Carbon Copy Recipient List
Addressed To: Kirk S. Sohonage, Esq.
PO Box 480
Camp Hill, PA 17001
Carbon Copied: Hubert Xavier Gilroy, Esq.
Broujos & Gilroy, P.C.
4 N. Hanover Street
Carlisle, PA 17013
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
The Honorable J. Wesley Oler, Jr.
Court of Common Pleas of Cumberland County
Cumberland County Courthouse, One Courthouse Sq
Carlisle, PA 17013
1013 -10/99
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CHADWICK O. BOGAR, :
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
CIVIL ACTION - LAW
MANN REALTY, INC,
Defendant
NO. 05-973 CIVIL TERM
ORDER OF COURT
AND NOW, this 9th day of January, 2006, upon consideration of the order of the
Pennsylvania Superior Court at No. 1916 MDA 2005 dated December 30,2005, quashing
the above-captioned appeal from a nonjury verdict entered October 12, 2005, and
following a conference in chambers of the undersigned judge in which Plaintiff was
represented by Hubert X. Gilroy, Esq" and Defendant was represented by Kirk S,
Sohonage, Esq., and it appearing that counsel do not agree as to whether Defendant's
motion for reconsideration of the verdict should be construed as a motion for post-trial
relief pursuant to Pennsylvania Rule of Civil Procedure 227.1, it is ordered and directed
as follows:
I. A hearing is scheduled for Friday, January 13,2006, at 11:00
a.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle,
Pennsylvania, on the issue of whether Defendant's motion for
reconsideration should be construed as a motion for post-trial relief.
2. At the conclusion of the hearing the court will enter an order
disposing ofthis issue; and
3. Counsel are requested to be prepared at the conclusion of the
hearing to argue Defendant's motion, should it be deemed a motion
for post-trial relief.
BY THE COURT,
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Hubert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
Kirk Sohonage, Esq.
2933 North Front Street
Harrisburg, PAl 711 0
Attorney for Defendant
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CHADWICK O. BOGAR
Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
v.
CIVIL ACTION
MANN REALTY, INC.
Defendant
No. 05-973 CIVIL TERM
MOTION TO CONTINUE HEARING
AND NOW, comes Defendant, by named counsel, Kirk S. Sohonage, Esquire, and files the within Motion
to Continue a hearing scheduled for Friday, January 13th, ,2006 and in support thereof avers the following:
I. A hearing has been scheduled by the Honorable Judge Okr on
Defendant's Motion for Reconsideration for Friday, January ]3,2006 at]] :00
a.m. in Courtroom # ], Cumberland County Courthouse,
2, Undersigned counsel provided notice of the scheduled hearing to Robert
M. Mumma II, a director and/or officer of the Defendant, by regular mail and by
leaving a message on Mumma's phone.
3. On Wednesday, January]], 2006, Mumma left a phone message
for undersigned counsel advising that he would be out of town on the
13th and told counsel to Request a Continuance so that Mumma could obtain new
counsel to argue this matter.
4, Undersigned counsel currently has a pending Motion before this Court for
Leave to Withdraw.
Accordingly, the Defendant Requests a Continuance based upon the
statements and desires of Robert M. Mumma II.
Kirk S. Sohonage, Esquire
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CHADWICK O. BOGAR, :
Plaintiff
IN THE COURT OF COtvIMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
MANN REALTY, INC,
Defendant
NO. 05-973 CIVIL TERM
ORDER OF COURT
AND NOW, this 1ih day ofJanuary, 2006, upon consideration of Defendant's
Motion To Continue Hearing, the motion is denied.
BY THE COURT,
J.
~bert X. Gilroy, Esq.
4 North Hanover Street
Carlisle, P A 17013
Attorney for Plaintiff
Ark Sohonage, Esq.
2933 North Front Street
Harrisburg, P A 17110
Attorney for Defendant
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - I,AW
MANN REALTY ASSOCIATES,
INC. ,
Defendant
NO. 05-973 CIVIL TERM
IN RE: MOTION FOR POST-TRIAL RELIEF
ORDER OF COURT
AND NOW, this 13th day of January, 2006, upon
consideration of Defendant's Motion for Reconsideration,
which has been deemed pursuant to an agreement of counsel to
be a Motion for Post-trial Relief Pursuant to Pennsylvania
Rule of Civil Procedure 227.l, and following oral argument
on the motion so construed, Defendant's motion is denied.
By the Court,
/'
,Hubert X. Gilroy, Esquire
4 North Hanover Street
Carlisle, PA 17013
For Plaintiff
:mae
~irk Sohonage, Esquire
P.O. Box 480
Camp Hill, PA 17001
For Defendant
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CHADWICK O. BOGAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - LAW
MANN REALTY ASSOCIATES,
INC. ,
Defendant
NO. 05-973 CIVIL TERM
IN RE: MOTION FOR RECONSIDERATION
ORDER OF COURT
AND NOW, this 13th day of January, 2006,
pursuant to an agreement of counsel reached in open court on
this date, Defendant's Motion for Reconsideration is deemed
to be a Motion for Post-trial Relief Pursuant to
Pennsylvania Rule of Civil Procedure 227.1.
By the Court,
".-
_~~bert X. Gilroy, Esquire
4 North Hanover Street
Carlisle, PA 17013
For Plaintiff
i~rk Sohonage, Esquire
P.O. Box 480
Camp Hill, PA 17001
For Defendant
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