HomeMy WebLinkAbout14-0645 Supreme Court-of Pennsylvania
Cou — C,om Pleas
R. 4 -et For Prothonotary Use Only:
County Docket No: �sT
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the tlin and service ofpleadings or other pa ers as required by law or rules of court.
Commencement. of Action:
S
El Complaint El Writ of Summons ❑ Petition El Notice of Appeal
❑ Transfer from Another Jurisdiction ❑ Declaration of Taking
E
C Lea d Plai ntiff's Name
Lead Defendant's Name:
Brenan STPerva i Michael Scott
T [ � -- - f
I ❑ Check here if you are a Self- Represented (Pro Se) Litigant
Name of Plaintiff /Appellant's Attorney: WIIIIam L. Adler'
Are money damages requested? : x❑ Yes ❑ No Dollar Amount Requested: within arbitration limits
A (Check one) �_ outside arbitration limits
Is this a Class Action Suit? ❑ Yes 0 No
Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your
PRIMARY CASE. If you are making more than one type of claim, check the one that
you consider most important.
TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS
❑ Intentional ❑ Buyer Plaintiff Administrative Agencies
❑ Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment
❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections
❑ Nuisance~ . _ �__ -� ❑ Dept. of Transportation
❑ Premises Liability ! ❑ Zoning Board
S ❑ Product Liability (does not include ❑ Statutory App O
E mass tort) ❑ Employment Dispute: r -�
I
El Discrimination Slander /Libel/ Defamation I
C ❑ Other: ❑ Employ Dis pute: Other
T - -- Judicial Appeals
I - — ❑ MDJ - Landlord /Tenant
I 0 Other: ❑ MDJ - Money Judgment
O MASS TORT (Rent ❑ Other:
❑ Asbestos
N ❑ Tobacco I
❑ Toxic Tort - DES
❑ Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS
❑ Toxic Waste
Ejectment ❑ Common Law /Statutory Arbitration
❑ Other: ❑ Eminent Domain /Condemnation ❑ Declaratory Judgment
B - � ❑ Ground Rent ❑ Mandamus
�9
❑ Landlord /Tenant Dispute ❑ Non - Domestic Relations
❑ Mortgage Foreclosure Restraining Order
PROFESSIONAL LIABLITY ❑ Partition ❑ Quo Warranto
❑ Dental ❑ Quiet Title ❑ Replevin
❑ Legal
❑ Medical E3 Other: ❑ Other: r _ _ _ _____ _
❑ Other Professional:
Pa.R.C.P. 205.5 212010
V
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r0 TPONOJA hY
LIT Tlj,
William L. Adler, Esquire 5
4949 Devonshire Rd. C UMBERL AND COU
Harrisburg, PA 17109 P E " S Y(. VA 1j1A TY q�
Phone: 717- 652 -8989
Fax: 717 - 307 -3343
Email: BAL@BillAdlerLaw.com
Supreme Court ID: 39844
Brendan S. Perva, : IN THE COURT OF COMMON PLEAS
Plaintiff : Cumberland COUNTY, PENNSYLVANIA
V. : CIVIL ACTION - LAW
Michael Scott, :NO. 1 - l!t"l S
Defendant
EJECTMENT
N O T I C E
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within Twenty (20) days after this Complaint and Notice are
served by entering a written appearance personally or by 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
2 Liberty Ave.
Carlisle, PA 17013
(717) 249 -3166
a
?*7 360)
u
N 0 T I C I A
Le han demandado a usted an la corte. Si usted guiere
defenderse de estas demandas expuestas en las paginas siguientes,
usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia
escrita o en persona o por abogado y archivar en la corte en
forma escrita sus defensas o sus objeciones a las demandas en
contra de su persona. Sea avisado gue si usted no se defienda,
la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificacion y por cualquier gueja o alivio gue es
pedido en la peticion de demanda. Usted puede perder dinero o
sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUNENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Ave.
Carlisle, PA 17013
(717) 249 -3166
Brendan S. Perva, : IN THE COURT OF COMMON PLEAS
Plaintiff : Cumberland COUNTY, PENNSYLVANIA
V. : CIVIL ACTION - LAW
Michael Scott, : NO.
Defendant
COMPLAINT
COUNT I - EJECTMENT
AND NOW COMES the plaintiff, Brendan S. Perva, through his attorney, William L.
Adler, and respectfully represents the following:
1. Plaintiff, Brendan S. Perva is an adult individual with an address of 131 Holly Drive,
Mechanicsburg, PA 17055.
2. Defendant, Michael Scott, is an adult individual with an address of 131 Holly Drive,
Mechanicsburg, PA 17055.
3. Plaintiff is the owner of 131 Holly Drive, Mechanicsburg PA 17055 (hereinafter, the
Property).
4. Plaintiff acquired title to the Property from Thomas and Joseph Carestia, Administrators of
the Estate of Laura M. Carestia, by deed dated May 16, 2011 and recorded June 20, 2011 to
Instrument Number 201117458, which deed is recorded in the Office of the Recorder of Deeds of
Cumberland County, Pennsylvania.
5. Prior title to the Property is attached hereto as Exhibit A.
6. Defendant has no legal or equitable interest in the property.
7. There are no oral or written agreements between plaintiff and defendant regarding ownership
of the Property.
8. Defendant currently occupies part of the Property, and after proper notice to vacate, has
refused to vacate the Property.
WHEREFORE, plaintiff respectfully requests that plaintiff be granted exclusive possession of
the Property.
COUNT II - LANDLORD TENANT
9. Paragraphs one through eight are incorporated herein by reference.
10. Plaintiff and defendant had a landlord -tenant relationship.
11. Defendant orally agreed to share all utilities with plaintiff and to pay for half of the mortgage
payment that plaintiff made on a monthly basis as rent for defendant's occupancy of the Property.
12. There is no written lease.
13. All agreements were oral regarding the leasing of the premises.
14. Proper notice to vacate the Property was sent and delivered to defendant on October 17,
2013.
15. Defendant as of February 1, 2014 is in arrears on the payment of rent and utilities to plaintiff
in the amount of $2,569.94.
16. Repeated demand for payment has been made to defendant who refuses to pay the same.
17. The amount of rent and utilities due from defendant continues to accumulate.
WHEREFORE, plaintiff respectfully request that judgment be entered against defendant in the
amount of $2,569.94 together with interest and costs of suit, and that plaintiff be awarded
exclusive possession of the Property.
William L. Adler, Esquire
4949 Devonshire Road
Harrisburg, PA 17109
Phone: 717- 652 -8989
Fax: 717- 307 -3343
Supreme Court ID: 39844
bal@billadlerlaw.com
January 30, 2014
EXHIBIT A
CHAIN OF TITLE, 131 Holly Dr., Mechanicsburg PA 17011
Anthony Carestia died 3/23/09, thereby vesting title in Laura Carestia as the surviving tenant by
the entireties who died on 8/19/09.
Deed dated November 4, 1978 from Teneyck Joseph Hennessey, Jr. And Mary Lou Hennessy to
Anthony J. Carestia and Laura M. Carestia recorded in Record Book M, Volume 28, Page 83.
Deed dated August 28, 1972 from Raymond D. Williams and Jacqualene A. Williams to
Teneyck Joseph Hennessy, Jr. And Mary Lou Hennessy recorded in Record Book T, Volume 24,
Page 1069.
Deed dated November 13, 1969 from Cleason C. Cromer and Florence A. Cromer to Raymond
D. Williams and Jacqualene A. Williams recorded in Record Book L, Volume 23, Page 630.
Deed dated May 29, 1969 from Paul T. Shearer and Russell S. Eberly, copartners trading and
doing business as Spring Run Acres to Cleason C. Cromer recorded in Record Book G, Volume
23, Page 706.
Being part of the same premises which Russell S. Eberly and Helen G. Eberly by deed dated
May 7, 1969 and recorded in Deed Book E, Volume 23, Page 1023 granted and conveyed to Paul
T. Shearer and Russell S. Eberly, copartners, trading and doing business as Spring Run Acres.
Being a part of the same premises which Russell S. Eberly by deed dated May 31, 1952 and
recorded in Deed Book A, Volume 15, Page 138 conveyed to Russell S. Eberly and Helen G.
Eberly.
VERIFICATION
I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING
ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE
MADE SUBJECT TO THE PENALTIES OF 18 Pa.C_S.A. Section 4904 RELATING TO
UNSWORN FALSIFICATION TO AUTHORITIES -
DATE:
wed' �(,rr C• .�°J�,�1„
Teo
2014 FEB , t
U � 8 � dd 2" 4
>;r
William L.Adler, Esquire it-AND c
4949 Devonshire Rd. Ns YL ,A tiliT y NIA
Harrisburg,PA 17109
Phone: 717-652-8989
Fax: 717-307-3343
Email: BALP,BillAdlerLaw.com
Supreme Court ID: 39844
Brendan S. Perva, : IN THE COURT OF COMMON PLEAS
Plaintiff : Cumberland COUNTY,PENNSYLVANIA
v. : CIVIL ACTION=LAW
Michael Scott, : NO. - ( it£
Defendant
: EJECTMENT
ACCEPTANCE OF SERVICE
I accept service of the plaintiff' s complaint in the above
matter on be f of Michael Scott and certify that I am
authorized ,t o so.
Darrell Dethlefs squire
2132 Market St:.
Camp Hill,PA 17011
Date: , / /01
is
, ` ti t f y J fti t,
^�� ray
2 , FEB 26
PENitiS C/ At l @`I
BRENDAN S. PERVA, • IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY,
• PENNSYLVANIA
v. .
•
MICHAEL SCOTT, :
Defendant • NO. 14-645 Civil
NOTICE TO PLEAD
To: Brendan S. Perva
c/o William L. Adler, Esq.
4949 Devonshire Rd
Harrisburg, PA 17109
You are notified to file a written response to the attached Answer,New Matter, and
Counterclaim within twenty (20) days from service hereof or a judgment may be entered against
you.
Respectful .ubmitted,
____
„v....4i..
Date: a a `,Q 1-1
Darrell C. Dethlefs, Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St, Camp Hill, PA 17011
(717) 975-9446
ddethlefs@aol.com
Supreme Court ID No. 58805
BRENDAN S. PERVA, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY,
: PENNSYLVANIA
V.
•
•
MICHAEL SCOTT,
DEFENDANT : NO. 14-645 Civil
ANSWER
COUNT I - EJECTMENT
AND NOW COMES the defendant, Michael Scott, through his attorney, Darrell C.
Dethlefs, and respectfully represents the following:
1. Admitted.
2. Admitted.
3. Admitted in part and denied in part. Admitted that Plaintiff's name is on the deed for the
property located at 131 Holly Drive, Mechanicsburg, PA 17055, but denied that Plaintiff
is the sole'owner. Defendant has an equitable interest in the property because he paid
part of the'purchase price, utilities, and half of the mortgage payment to Plaintiff each
month.
4. Admitted in part and denied in part. Admitted that Plaintiff's name is on the deed for the
property located at 131 Holly Drive, Mechanicsburg, PA 17055, but denied that Plaintiff
is the sole'owner. Defendant has an equitable interest in the property because he paid
part of the purchase price, utilities, and half of the mortgage payment to Plaintiff each
month.
5. Admitted.
6. Denied. By way of further answer, Defendant has both legal and equitable interests in
the property. There were several oral agreements regarding ownership and maintenance
of the property, several of which were memorialized in emails between Plaintiff and
Defendant. Defendant, as a co-owner, transferred money for all utilities and half of the
mortgage payment to Plaintiff each month.
7. Denied. By way of further answer, there were several agreements regarding ownership
and maintenance of the property, several of which were memorialized in emails between
Plaintiff and Defendant.
8. Admitted'in part and denied in part. Admitted that Defendant currently occupies part of
the Property and that Defendant will not vacate the property, but denied that notice to
vacate was proper. By way of further answer, there was no landlord-tenant relationship
between Plaintiff and Defendant, and a Notice to Vacate was never properly served upon
Defendant.
WHEREFORE, the Defendant, Michael Scott, respectfully requests judgment in his
favor and against Plaintiff with costs, attorney's fees, and any other relief the Court deems just
and to dismiss Plaintiff's Complaint.
COUNT II—LANDLORD TENANT
9. This is an incorporation paragraph that requires no response.
10. Denied. These allegations constitute conclusions of law to which no response is
necessary! By way of further answer, there was no landlord-tenant relationship between
Plaintiff and Defendant.
11. Admitted in part and denied in part. Admitted that Defendant orally agreed to share all
utilities with Plaintiff and to pay for half of the mortgage payment, but denied that this
was rent for Defendant's occupancy of the Property. By way of further answer, there
were several oral agreements regarding ownership and maintenance of the property,
several of which were memorialized in emails between Plaintiff and Defendant.
Defendant, as a co-owner, transferred money for all utilities and half of the mortgage
payment tb Plaintiff each month.
12. Admitted.' By way of further answer, there is no written lease because there was no
landlord-tenant relationship between Plaintiff and Defendant.
13. Admitted. By way of further answer, several of these agreements were memorialized in
emails between Plaintiff and Defendant.
14. Denied. By way of further answer, a Notice to Vacate was never properly served upon
Defendant.
15. Denied. These allegations constitute conclusions of law to which no response is
necessary. By way of further answer, there was no landlord-tenant relationship between
Plaintiff and Defendant, so Plaintiff was never entitled to rent payments from Defendant.
16. Admitted in part and denied in part. Admitted that demand for payment has been made,
but denied that Plaintiff is entitled to rent payments from Defendant.
17. Denied. ley way of further answer, there was no landlord-tenant relationship between
Plaintiff and Defendant, so Plaintiff was never entitled to rent payments from Defendant.
WHEREFORE, the Defendant, Michael Scott, respectfully requests judgment in his
favor and against Plaintiff with costs, attorney's fees, and any other relief the Court deems just
and to dismiss Plaintiff's Complaint.
NEW MATTER
18. Paragraph§ one through seventeen are incorporated herein by reference.
19. Plaintiff's actions are barred by the affirmative defenses of estoppel and fraud.
20. Plaintiff represented to Defendant that they would be purchasing the property located at
131 Holly Drive, Mechanicsburg, PA 17055 as co-owners, and that Defendant's name
would be added to the deed for the property after it was purchased.
21. Defendant relied on these representations to his detriment when he orally agreed to share
all utilities with Plaintiff and to pay for half of the mortgage payment, and when he
transferred money for all utilities and half of the mortgage payment to Plaintiff each
month.
22. Plaintiff now alleges that Defendant has no interest in the property, and has failed to add
Defendant's name to the deed for the property as promised.
WHEREFORE, the Defendant, Michael Scott, respectfully requests judgment in his
favor and against Plaintiff with costs, attorney's fees, and any other relief the Court deems just
and to dismiss Plaintiff's Complaint.
COUNTERCLAIM
COUNT I—EQUITABLE OWNERSHIP
23. Paragraphs one through twenty-two are incorporated herein by reference.
24. Where a transfer of property is made to one person and the purchase price is paid by
another, a prima facie case for a resulting trust is established in favor of the party who
advanced the purchase price. Grubb v. Delathauer, 274 Pa.Super. 511, 418 A.2d 523
(1980).
25. Defendant advanced $5,000.00 in equity towards the purchase price of$159,900.00, and
each party is equally responsible for the mortgage amount of$155,846.00. Defendant
has since shared all utilities with Plaintiff and paid for half of the mortgage payment each
month.
26. A resulting trust was established in favor of Defendant.
27. In the absence of an agreement to divide the property in some other manner, the
beneficiary of a resulting trust is entitled to an interest in such proportion as his
contribution bore to the total purchase price. Lewis v. Spitler, 266 Pa.Super. 201, 403
A.2d 994 (1978); McHenry v. Stapleton, et al., 423 Pa. 186, 278 A.2d 892 (1971);
Zahorsky v. Leschinsky, 394 Pa. 368, 147 A.2d 362 (1959).
28. Defendant advanced $5,000.00 in equity towards the purchase price of$159,900.00, and
each party is equally responsible for the mortgage amount of$155,846.00. Defendant
has since shared all utilities with Plaintiff and paid for half of the mortgage payment each
month.
29. There was no agreement to divide the property, so Defendant is entitled to a 51.86%
interest in the property (((($155,846.00/2)+$5,000.00)/($159,900.00))x100%=51.86%).
30. A constructive trust arises where a person holding title to property is subject to an
equitable duty to convey it to another on grounds that he would be unjustly enriched if he
were permitted to retain it. Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982).
31. Defendant advanced $5,000.00 in equity towards the purchase price of$159,900.00, and
each party is equally responsible for the mortgage amount of$155,846.00. Defendant
has since shared all utilities with Plaintiff and paid for half of the mortgage payment each
month.
32. Plaintiff would be unjustly enriched if he were permitted to retain sole ownership of the
property.
WHEREFORE, Defendant respectfully requests that Defendant be awarded a 51.86%
interest in the property.
COUNT II—DEED REFORMATION
33. Paragraphs one through thirty-two are incorporated herein by reference.
34. Reformation is an equitable remedy and is one of the procedures employed to correct
inequities'resulting from accident, mistake, and fraud. See Bispham's Principles of Equity
(7th Ed.),P. 45.
35. A party seeking reformation on the basis of unilateral mistake may be granted relief if the
party against whom reformation is sought has such knowledge of the mistake as to justify
an inference of fraud or bad faith. Line Lexington Lumber &Millwork Co. v.
Pennsylvania Publishing Corp., 451 Pa. 154, 301 A.2d 684 (1973).
36. Plaintiff represented to Defendant that they would be purchasing the property located at
131 Holly Drive, Mechanicsburg, PA 17055 as co-owners, and that Defendant's name
would be added to the deed for the property after it was purchased.
37. Defendant relied on these representations to his detriment when he orally agreed to share
all utilities with Plaintiff and to pay for half of the mortgage payment, and when he
transferred money for all utilities and half of the mortgage payment to Plaintiff each
month.
38. Plaintiff now alleges that Defendant has no interest in the property, and has failed to add
Defendant's name to the deed for the property as promised.
WHEREFORE, Defendant respectfully requests that the deed for the property located at
131 Holly Drive,Mechanicsburg, PA 17055, be reformed to include his name as a co-owner.
. .
Respectfull, bmitted,
Date: 9 o)I I L1 -0 ...,.
1
Darrell C. Dethlefs, Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St, Camp Hill, PA 17011
(717) 975-9446
ddethlefs @aol.com
Supreme Court ID No. 58805
Certificate of Service
I, Derrell C. Dethlefs, Esq., the undersigned, hereby certify that on a I a LP , a
true and correct copy of the Answer, New Matter, and Counterclaim were served on t e
following:
Brendan S. Perva
c/o William L. Adler, Esq.
4949 Devonshire Rd
Harrisburg, PA 17109
BY: A ......___.
,,----tio.
Date: O9 ()Le 1 I II
Darrell C. Dethlefs, Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St, Camp Hill, PA 17011
(717) 975-9446
ddethlefs @aol.com
Supreme Court ID No. 58805
Verification
I verify that the statements made in the Answer with New Matter are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904
relating to unsworn falsification to authorities and can be punishable by fine or imprisonment.
-Z7/4
Date Michael Scott
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson '
Sheriff t
Jody S Smith ,�
Chief Deputy 2 .
Richard W Stewart
Solicitor , � � ' j *`
Y �
PEHNSYLVAHIA
Brendan S Perva
vs. Case Number
Michael Scott 2014-645
SHERIFF'S RETURN OF SERVICE
02/20/2014 03:58 PM- Deputy Stephen Bender, being duly sworn according to law, served the requested Complaint
in Ejectment by"personally" handing a true copy to a person representing themselves to be the
Defendant, to wit: Michael Scott at 131 Holly Drive, Upper Allen, Mechanicsburg, PA 17055.
STEPHEN BENDER, DEPUTY
SHERIFF COST: $43.79 SO ANSWERS,
February 24, 2014 RONIV ANDERSON, SHERIFF
William L. Adler, Esquire
4949 Devonshire Rd.
Harrisburg, PA 17109
Phone: 717- 652 -8989
Fax: 717- 307 -3343
Email: BAL @BillAdlerLaw.com
Supreme Court ID: 39844
Brendan S. Perva,
Plaintiff
v.
Michael Scott,
Defendant
6141 �",? 20 P I. 1 9
PENJy� Y� A NIA y
: IN THE COURT OF COMMON PLEAS
: Cumberland COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 14 -645 Civil
: EJECTMENT
REPLY TO NEW MATTER AND COUNTERCLAIM AND
COUNTER -REPLY AS NEW MATTER
AND NOW COMES the plaintiff, Brendan S. Perva, through his attorney, William
Adler, and respectfully represents the following:
18. Denied.
19. Denied. This is a conclusion of law to which no responsive pleadings required.
20. Admitted in part and denied in part. It is admitted that when the plaintiff and defendant
started talking about purchasing the property, that they discussed ownership as co- owners. Upon
identifying a property and applying for a mortgage, it became evident that due to the defendant's
poor credit history, they could not qualify for a mortgage with the defendant being on the deed.
Both parties mutually agreed that only plaintiff would be on the title.
21. Denied. Plaintiff is unaware as to what defendant relied upon in making monthly payments.
Once it was determined that defendant was not credit worthy to purchase the property, the
arrangement became a rental arrangement whereby defendant would pay half the mortgage
payment plus half of all utilities to plaintiff in return for occupying part of the Property.
22. Admitted in part and denied in part. Defendant has no interest in the Property. Plaintiff
never agreed to add defendant's name to the property. Furthermore, adding defendant's name to
the deed would be deemed a transfer and a technical default under the mortgage.
23. Denied.
24. Denied. This is a conclusion of law to which no responsive pleadings required
25. Admitted in part and denied in part. It is admitted that defendant gave plaintiff $5000
towards the purchase of the property. It is denied that this was in exchange for any equity in the
property. Defendant has paid half the expenses of the property in return for the privilege of
living in the property. Defendant has no legal responsibility to pay the mortgage because
defendant is not on the note. Defendant's only obligation is to pay rent to plaintiff.
26. Denied. This is a conclusion of law to which no responsive pleading is required.
27. Denied. This is a conclusion of law to which no responsive pleading is required. By way of
further answer thereto the only writing in this matter is a gift letter signed by the defendant which
acknowledges that the $5000 was a gift to plaintiff. Furthermore, the statute of frauds prevents
defendant from making a claim to this property in that there is no writing evidencing any
agreement to give any interest in this property to the defendant.
28. Admitted in part and denied in part. Defendant has not made a full payment to Plaintiff
since August of 2013. This was considered rent by the plaintiff. The $5,000 was a gift.
29. Denied. This is a conclusion of law to which no responsive pleading is required.
30. Denied. This is a conclusion of law to which no responsive pleading is required.
31. Denied. Defendant acknowledged in writing that the $5000 was a gift and not a contribution
towards equity. See prior responses.
32. Denied. Defendant acknowledged in writing that the $5000 was a gift and not a contribution
towards equity. In addition, plaintiff has put approximately $30,000 in capital investment into
the house and believes that if it was sold today it would be a loss.
33. Denied.
34. Denied. This is a conclusion of law to which no responsive pleading is required.
35. Denied. This is a conclusion of law to which no responsive pleading is required.
36. Denied. See response to paragraph 20.
37. Denied. Plaintiff is unaware as to what defendant relied upon.
38. Admitted in part and denied in part. Plaintiff has not added defendant to the deed. Plaintiff
never promised to do so. Defendant has no interest in the property.
WHEREFORE, plaintiff respectfully request that judgment be entered against defendant in the
amount of $2,569.94 together with accumulating rental and utility payments due from defendant,
interest and costs of suit, and that plaintiff be awarded exclusive possession of the Property.
COUNTER- REPLY/NEW MATTER
39. Paragraphs one through 38 are incorporated herein by reference.
40. Defendant's claims are barred by the statute of frauds.
41. Defendant's claims are barred by the doctrine of estoppel, laches, and accord and
satisfaction.
WHEREFORE, plaintiff respectfully request that judgment be entered against defendant in the
amount of $2,569.94 together with accumulating rental and utility payments due from defendant,
interest and costs of suit, and that plaintiff be awarded exclusive possession of the Property.
William L. Adler, Esquire
4949 Devonshire Road
Harrisburg, PA 17109
Phone: 717- 652 -8989
Fax: 717- 307 -3343
Supreme Court ID: 39844
bal @billadlerlaw.com
March 18, 2014
VERIFICATION
I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING
ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE
MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO
UNSWORN FALSIFICATION TO AUTHORITIES.
DA1E:
CERTIFICATE OF SERVICE
I, William L. Adler, Esquire, Attorney Plaintiff, hereby certify on March 18, 2014, I served
a copy of the within reply to new matter and counterclaim upon the following person by first class
mail, postage prepaid addressed as follows:
Darrell Dethlefs
2132 Market St.
Camp Hill, PA 17011
William L. Adler, Esquire
BRENDAN S. PERVA,
PLAINTIFF
V.
L
t HE
PRO
+014tlR25 PH 4: ;
CUMBERLAND COUNTY
PENNS 'LVANIA
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY,
: PENNSYLVANIA
MICHAEL SCOTT,
DEFENDANT : NO. 14 -645 Civil
COUNTER -REPLY
AND NOW COMES the Defendant, Michael Scott, through his attorney, Darrell C.
Dethlefs, and respectfully represents the following:
1. Paragraphs one through 38 are incorporated herein by reference.
2. Denied. This is a conclusion of law to which no responsive pleading is required.
3. Denied. This is a conclusion of law to which no responsive pleading is required.
WHEREFORE, the Defendant, Michael Scott, respectfully requests judgment in his favor
and against Plaintiff with costs, attorney's fees, and any other relief the Court deems just and to
dismiss Plaintiff's Complaint.
Respectful) submitted,
Darrell C. Dethlefs, Esq.
Dethlefs - Pykosh Law Group, LLC
2132 Market St, Camp Hill, PA 17011
(717) 975 -9446
ddethlefs@aol.com
Supreme Court ID No. 58805
Certificate of Service
I, Derrell C. Dethlefs, Esq., the undersigned, hereby certify that on
true and correct copy of the Counter-reply was served on the following:
William L. Adler, Esq.
4949 Devonshire Rd
Harrisburg, PA 17109
BY:
Darrell C. Dethlefs, Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St, Camp Hill, PA 17011
(717) 975-9446
ddethlefs@aol.com
Supreme Court ID No. 58805
Verification
I verify that the statements made in the Counter -reply are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to
unsworn falsification to authorities and can be punishable by fine or imprisonment.
.3/7Z;// y
Date
Michael Scott
PRAECIPE FOR LISTING CASE FOR NON JURY TRIAL
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case for a TRIAL WITHOUT A JURY.
CAPTION OF CASE
jentire caption must be stated in full'
Brendan S. Perva
Michael Scott
(Plaintiff)
vs.
(Defendant)
VS.
(check one)
(1 Civil Action — Law
11 Appeal from arbitration
(other)
No. 14-645
Indicate the attorney who will try case for the party who files this praecipe:
William L. Adler, Esg., 4949 Devonshire Road, Harrisburg, PA 17109
Civil Term
Indicate trial counsel for other parties if known:
Darrell Dethlefs
2132 Market St.
Camp Hill, PA 17011
This case is ready for trial.
Date: May 29, 2014
Signed:
Print Name: Wiliam L. Adler. Esq., 4949 Devonshire Road, Harrisburg. PA 17109
Attorney for: Plaintiff
40,61.15 Fob
c-11 i`1sa
0138759
BRENDAN S. PERVA, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
vs.
MICHAEL SCOTT,
Defendant
: CIVIL ACTION — LAW
: NO. 14-645 CIVIL
IN RE: NONJURY TRIAL
ORDER
AND NOW, this 6 day of June, 2014, a pretrial conference in the above
matter is set for Wednesday, June 25, 2014, at 10:15 a.m. in Chambers of the undersigned.
BY THE COURT,
William L. Adler, Esquire
4949 Devonshire Road
Harrisburg, PA 17109
For the Plaintiff
✓Darrell Dethlefs, Esquire
2132 Market Street
Camp Hill, PA 17011
Court Administrator — piktgri
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Kevi A. Hess, P.J.
( U►PENNSAYLVAN AND COUNT',
BRENDAN S. PERVA, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
MICHAEL SCOTT,
Defendant NO. 14-645 Civil
STATEMENT OF OBJECTIONS
1. This real property dispute was first addressed by Magisterial District Judge 09-3-05, Judge
Mark Martin,when Judge Martin dismissed the case without prejudice on December 19,
2013.
2. Plaintiffs Complaint was filed in Cumberland County at Docket No. 14-645 on January 30,
2014.
3. Defendant's attorney, Darrell C. Dethlefs, Esq., accepted service of the complaint on
February 17, 2014.
4. Defendant filed his Answer,New Matter and Counterclaim on February 26, 2014.
5. Plaintiff's Reply with New Matter was filed on March 18, 2014.
6. Defendant filed his Counter-Reply on March 25, 2014.
7. Plaintiff served Defendant with Interrogatories and a Request for Production of Documents
on April 7, 2014.
8. Defendant responded to Plaintiff's discovery requests and served Plaintiff with
Interrogatories, Requests for Admissions, and Requests for Production of Documents, on
May 7, 2014.
9. Plaintiff responded to Defendant's discovery requests on May 20,2014.
10. Plaintiff filed a Praecipe for Listing Case for Non Jury Trial on May 29, 2014 (attached
hereto as Exhibit A).
11. The Honorable Kevin A. Hess, in an Order dated June 6, 2014, scheduled the matter for a
pretrial conference on June 25, 2014 (attached hereto as Exhibit B).
12. Defendant objects to Plaintiff's Praecipe and the Order scheduling a pretrial conference
because he intends to schedule depositions of Plaintiff, Alice Perva, and Bradley Perva, in
response to Plaintiff's Response to Defendant's Interrogatories (attached hereto as Exhibit
C).
13. The case will be ready for listing following the scheduling and taking of these depositions.
Respect ly s . e
Date: / � � (LI
Vi Darrell ethlefs, Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St, Camp Hill, PA 17011
(717) 975-9446
ddethlefs@aol.com
Supreme Court ID No. 58805
PRAECIPE FOR LISTING CASE FOR NON JURY TRIAL
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case for a TRIAL WITHOUT A JURY.
-------------------------------------------------------------------------------------------------------------------------------
CAPTION OF CASE
jentire caption must be stated in fulll (check one)
Civil Action —Law
❑ Appeal from arbitration
Brendan S. Perva (other)
(Plaintiff) No. 14-645 Civil Term
vs.
Michael Scott
(Defendant)
V5.
Indicate the attorney who will try case for the party who files this praecipe:
William L. Adler, Esq., 4949 Devonshire Road, Harrisburg, PA 17109
Indicate trial counsel for other parties if known:
Darrell Dethlefs
2132 Market St.
Camp Hill, PA 17011
This case is ready for trial. Signed:
Print Name:
Date: May 29, 2014 Attorney for: Plaintiff
BRENDAN S. PERVA, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs. CIVIL ACTION—LAW
NO. 14-645 CIVIL
MICHAEL SCOTT,
Defendant
IN RE: NONJURY TRIAL
ORDER
AND NOW, this (• day of June, 2014, a pretrial conference in the above
matter is set for Wednesday, June 25, 2014, at 10:15 a.m. in Chambers of the undersigned.
BY THE COURT,
' f
4 j6L-
' ]Kevi A. Hess, P.J.
William L. Adler, Esquire
4949 Devonshire Road
Harrisburg, PA 17109
For the Plaintiff
Darrell Dethlefs, Esquire
2132 Market Street
Camp Hill, PA 17011
Court Administrator
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BRENDAN S. PERVA, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
MICHAEL SCOTT.
Defendant NO. 14-645 Civil Plaintiff's answers to
INTERROGATORIES ADDRESSED TO PLAINTIFF—FIRST SCT
TO: Plaintiff, Attn:
William L. Adler, Esq.
4949 Devonshire Rd
Harrisburg, PA 17109
Defendant, Michael Scott, by and through his undersigned counsel, hereby serves the
following Interrogatories Addressed to Plaintiff— First Set on Plaintiff, Brendan S. Perva,which
require written responses within thirty (30)days in accordance with the Pennsylvania Rules of
Civil Procedure.
DEFINITIONS
l. "Plaintiff' shall mean Plaintiff, Brendan S. Perva,and shall include, where applicable,
Plaintiffs employees, agents,attorneys, representatives or any other persons or entities
acting or purporting to act in concert with or on Plaintiffs behalf.
2. "Defendant"shall mean Defendant, Michael Scott,and shall include, where applicable,
Defendant's employees, agents,attorneys,representatives or any other persons or entities
acting or purporting to act in concert with or on Defendant's behalf.
3. Unless otherwise indicated, the terms"you,""your,"and"yours,"as used herein, mean
Plaintiff,each person acting or authorized to act on his behalf, including but not limited
to his agents,employees,contractors, representatives,experts or his respective attorneys
in this litigation.
4. "Document"shall mean the original and each non-identical copy(whether different from
the original because of notes,additions,changes,or deletions made on the copy or
otherwise ,or draft of each writing of every kind and description(together with all
worksheets,supporting documents,and other relevant material),whether inscribed by
hand or mechanical,electronic,microfilm,photographic,or other means(such as
recording,film,tape,videotape,disc,diskette,or other means including data processing
files and other computer readable records or programs and all other data compilations
from whit information can be obtained,transcribed,and translated). Document shall
also include, but not be limited to, internet tvebsites,blogs, Facebook.com,Twitter.com,
Myspace.com,correspondence, letters,electronic mail,telegrams, messages,telephone
logs,diaries,teletype messages,memoranda,notes,reports, printouts,records,or minutes
of meetings,conferences,or telephone or other conversations or communications,
appointment calendars,contracts,contract addenda,amendments, changes,and
modifications.
5. "Person"or"persons'means all natural persons,corporations, partnerships or other
business associations,and all other legal entities, including all members,officers,
employees,agents, representatives,attorneys,successors, predecessors,assigns,
divisions;affiliates, and subsidiaries.
6. "Relatin&"(including any variant thereof), includes referring to,alluding to,
responding to,concerning, in connection with,commenting on or in respect of,
analyzing;touching upon,and constituting the being,and is not limited to
contemporaneous events,actions,communications or documents.
7. The term`"communications,"as used herein,means all statements,admissions,denials,
inquiries,'discussions,conversations, negotiations,agreements,contracts(whether written
or oral),understandings, meetings,telephone conversations, letters,correspondence,
notes,faxes,electronic mail, voicemail messages,telegrams,telexes,advertisements, or
any otherform of written or verbal intercourse.
8. "Identify,"when used in reference to a natural person,means to state his or her name,
present or last known address and telephone number,present or last known employer and
his or her employer's address,and position or job title at time of employment.
9. "Identify"when used in all other contexts than those described above means to describe
in detail with particularity and specificity.
10."Identify"or"identification"shall mean,when used in reference to any document, to:
a. state the type of document(e.g., letter,email, memorandum,fax,etc.);
b. sthte its date;
c. state its title,if any;
d. describe its general subject matter and contents;
e. identify the present location(s)and custodian(s)of the original and all known
copies of said document;
f. identify its author or originator;
g. if-the document is no longer in your possession, identify its last known custodian,
describe the circumstances under which it passed from your control to that person,
and.identify each person having knowledge of such circumstances and/or the
present location of the document;and/or
h. in lieu of identifying the document in the manner set forth above, attach a copy of
the document in question to your response to these interrogatories.
I I.The conjunctions"and"and"or"shall be interpreted to mean"and/or,"and shall not be
interpreted to exclude any information otherwise within the scope of any request.
GENERAL INSTRUCTIONS
1. The Discovery Requests are to be answered in writing,verified, and served upon the
undersigned within 30 days of their service on you.
2. To the extent any Discovery Request is objected to,set forth all reasons therefore. If you
claim privilege as a ground for not answering or responding to any request in whole or in
part,describe the factual basis for your claitn of privilege in sufficient detail to permit the
court to adjudicate the validity of the claim. If you object in part to any request,answer
the remainder completely.
3. These requests shall be deemed continuing and require additional responses if further
information is obtained between the time the answers are served and the time of trial.
Such additional responses shall be served from time to time,but not later than 30 days
after such-additional information is received.
4. If you assert a privilege, work product immunity, or decline to provide an answer on the
basis of some other objection:
a. identify or describe the document or communication in question;
b. describe the basis for the asserted privilege and objection;
c. identify every person to whom the document was sent, or every person present
when the communication was made;
d. identify the present custodian of the document, if any.
5. Where an interrogatory does not specifically request a particular fact, but where such fact
or facts ate,necessary to make the answer to the interrogatory either comprehensible,or
complete,or not misleading, you are requested to include such fact or facts as part of the
answer,and the interrogatory shall be deemed to specifically request such fact or facts.
G. If, in ansd ering any Discovery Request,you encounter any ambiguity in a question,
instruction;;or definition,set forth the matter deemed ambiguous and interpretation you
used in the,answering.
7. The singular shall include the plural and the plural shall include the singular.
8. A masculine, feminine or neuter pronoun shall not exclude the other genders.
INTERROGATORIES
1. Identify the person(s)answering or supplying information in answer to these
interrogatories.
Brendan Perva
2. State with particularity the factual basis for each claim or defense you are asserting in this
case.
See complaint
3. Identify each person who has knowledge of the facts concerning each claim or defense
you are asserting in this case.
Myself,Alice Perva, Bradley Perva
4. List all sums paid by Defendant towards 131 Holly Drive,Mechanicsburg,PA(the
Property). .
Defendant has made no payments towards the property. Defendant has paid Plaintiff
for the privilege of living in the Plaintiff's home.
5. Did Defendant provide you with$5,000.00 to be used as a down payment for the
purchase of the property?
Defendant provided me with a gift,which he clearly stated that required no re-payment,or
assumption of any equity in my home.
6. How was this$5,000.00 paid?
Money transfer
7. How long has Plaintiff resided in the Property?
Since June 2011
8. What is the,total square footage of the Property?
1814 square feet
9. How many square feet of the Property does Plaintiff occupy?
530 square feet
10. How many square feet of the Property does Defendant occupy?
1300 square feet
11. Are there any signed agreements between Plaintiff and Defendant regarding the
Property? If so, please provide them pursuant to the request for production of documents.
There are no written agreements between the Plaintiff and defendant.
12. What does Plaintiff believe the fair market value of the Property to be as of the time of
answering these interrogatories? On what is this based?
$175,000,appraisal provided by realtor in September 2013. This appraisal was also based on the
Plaintiff making approximately$10,000 in additional repairs to the property prior to listing.
13.if you know of the existence of any photographs, motion pictures,video recordings,
maps,diagrams,or models relevant to the case,state:
a. The nature or type of such item;
none
b. The date when such item was made;
c. Tile identity of the person that prepared or made each item; and
d. Tlie subject that each item represents or portrays.
14. If you, or someone not an expert subject to Pa. R.C.P. 4003.5, conducted any
investigations of the case, identify: none
a. Each person, and the employer of each person,who conducted any
investigation(s);and
b. Ah notes,reports or other documents prepared during or as a result of the
investigation(s)and the persons who have custody thereof.
15. Identify each person you intent to call as a non-expert witness at the trial of this case,and
for each person identified state your relationship with the witness and the substance of the
facts to which the witness is expected to testify.
a. Alice Perva, mother of both the Plaintiff and Defendant. She will testify regarding discussions she
witnessed between the Plaintiff and Defendant. She will also testify in regards to the financial and
physical work put into the Property.
b. Bradley Perva, brother of both the Plaintiff and Defendant. He will testify regarding discussions
he witnessed between the Plaintiff and Defendant. He will also testify in regards to the financial and
physical work put into the Property.
16. Identify each expert you intend to call as a witness at the trial of this matter,and for each
expert state:
a. The subject matter about which the expert is expected to testify; and
none
b. The substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.
17. Identify all exhibits that you.intend to use at(lie trial of this matter.
See response to request for production of documents. Plaintiff will present all bills paid and
settlement documents.
18. If you intend to use any admission(s)of a party at trial, identify such admission(s).
Written admission that$5,000 was a gift to plaintiff.
19. I f any Lan'djord's live, ten or thirty days' notice were served within one year prior to the
filing of tliis matter please state the following and attach a copy of the original of each
and every one of said notices(both the fronts and backs (hereof) to your answers to these
interrogatories and as to each of said notices,please state:
a. Was a particular notice a 5-day, 10-day or 30-day notice?
a. Two separate 30 day notices were served to the Defendant.
b. Who served the notice on behalf of plaintiff?
b. I served both notices,the first via email,the second via regular mail and by physically handing it to
the defendant.
C. Wbo received the notice on behalf of Defendant and where was it served?
C. The defendant received both notices at the Property.
d. Ori what day and at what time was the notice served?
d. The first was served on 9-24-13. The second was served on 10-18-13 via mail and 10-21-13 when I
handed him a copy.
e. 1-lave you attached a copy of the notices to your Answers to their Interrogatory?
yes
Respe fully •ubrnitted,
Date:
q( l ( l
Da . Dethlefs, Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St,Camp Hill, PA 17011
(717)975-9446
ddettilefs@aol.com
aol.com
Supreme Court ID No.58805
CERTIFICATE OF SERVICE
I, Darrell C. Dethlefs, Esquire,the undersigned,hereby certify that on May I,2014,a
true and correct copy of the Interrogatories Addressed to Plaintiff—First Set was sensed on the
fol lowing:
William L. Adler, Esquire
4949 Devonshire Rd
Harrisburg, PA 17109
BY:
Darrell C. Dethlefs,Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St,Camp Hill,PA 17011
(717) 975-9446
ddethlefs@aol.com
Supreme Court ID No. 58805
11/15/2013 16:18 7179752309 DETHLEFS PYKOSH LAW PAGE 01/02
DETHF,FFS-PYKOSH LAW GROUP, LLC
Darrell C.Dethiefs* Le a,� l Staff
Michael J.Fykosh l 2132 Maxket Street Sherry L.Deckman
Bryan'N.Shook Camp Hill,PA.17011 Crystal L.Mahoney
Heather N.Orlsko Phone: (717)975-9446 Melissa C.Foreman
Charles J.Hartwell Toll Free:(300)287-1202 Kathryn S.Fogle
Richard D.Hollingworth,Jr. Fax: (717)975-2309
Matthew R.Seeley E-mail: ddethlel's@aol.cona
Nicole L.Javitt www.dplglaw.com "Licensed PA Tifie Agent
November 15,2013
VIA EMAIL AND REGULAR MAIL
William L.Adler, Esquire
4949 Devonshire Road
Harrisburg, PA 17109
RE: My Client: Michael Scott
Your Client: Brendan Perva
F
Dear Mr.Adler:
Please be advised-that my office has been retained to represent Iver. Scott in his property dispute with
his brother, Brendan. It is my understanding that you represent Brendan. I have received your October
17,2013 letter. Your letter indicates that my client is a tenant with a month-to-month tenancy. That is
not correct.
is
Your client and niy client entered into an agreement to purchase the property at 131 Holly Drive,
Mechanicsburg, Pennsylvania, as partners. As a partner, my client provided the down payment money
for the purchase of the property. Additionally, each month,your client would provide my client with an
email wherein he would set out what the expenses were for the month,which included mortgage, PP&L,
water and other utilities.
My client would {ay half the mortgage and half the utilities.
I have these emails from your client to my client documenting the monthly request for the mortgage
payment and we have documentation of the subsequent transfer of the mortgage payment plus utilities
to your client,
My client was to tie on the Deed for the purchase. Then, the mortgage broker talked my client into
not having his name on the Deed, in essence being a silent partner because it was easier to obtain
J
138 East Market Street,3`d Floor 550 Cleveland Avenue,Suite 204
York,PA.17401 A Debt Relief Agency Chambersburg,PA 17201
The Dethlefs-Pykosh Lmv Group, LLC— "Your Full Service Law Firm"
11/15/2013 16:18 7179752309 DETHLEFS PYKOSH LAW PAGE 02/02
financing without my client being on the Deed. Nevertheless, Mr. Scott contributed substantial capital
towards the purchase of the property arid, likewise, contributed capital for the monthly mortgage
payment, payment of utilities and for the renovations of the property. Therefore, Mr. Scott will not
vacate the property. If your client proceeds with an eviction action, my client will file suit for recovery of
the down payment, seeking recovery of the many thousands of dollars that he has documented that
represent his contributions to the repairs of the property.
My client proposes that the parties enter Into negotiations through our offices to have one party buy
the other party out of the property.
If your client is interested in discussing buying my client out of the property, please advise and I will set
forth a demand wOich includes documentation of his capital contributions to the purchase and repair of
the property. If your client wishes to be bought out of the property by my client, please advise and set
forth your client's'proposal to be bought out of the property by my client.
While the parties negotiate on the buyout of the other partner, they should be able to co-exist in the
property peaceably. I await your response.
Very truly you
i
Darrell C.Dethlefs.
r
DCD:sId
cc: Michael Scott
i
WILLIAtM L. ADLER
ATTORNEY AT LAW
-1949 Devonshire Road
HARRISBURG, PENNSYLVANIA 17109
MONK (717) 65XS989
FAT (71 7) 307-3343
H'IM Vl_: 13 \I.rii?13iIlAdlerLa�y.com
WE13SITF: BillAdlerl.axy.com
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October 17. 2013
Adr. Michael Scott
131 (lolly Dr.
Mechanicsburg, PA 17053
Re: Tenancy at 131 [-lolly Drive. h)Icchanicsburg, PA
Mr. Scutt:
I have been retahwd by yow half-brother BrendaIl to help him regain exclusive possession of his property
at 131 Holly Drive.Mechanicsburg, PA- YOU have been rniding thereon a month-to-month tenancy forsorne tinle.
It is his wish that you voluntarily vacate the property within the next 30 days, removing all your belongings along
with yourself. This N a difficult action Or hull to take, but he has determined that it N required for his own peace
of mind. If you have any concern for him, you %viii voluntarily remove yourself and your belongings loin the
premises within the next:30 days. If not, this shall serve as your 30 day notice to vacate the premises. At the end
ofthat 30 days I have been instructed to file an action at the local district justice for possession ofthc property. You
currently owe a little over$200 in rent for unpaid utilities, and this would be included in the action for possession
along Wth any other charges such as the cost of filing the action and any, rent that may remain unpaid. He regrets
that he has to We this action. but icels that it is necessary. Your anticipated cooperation would be greatly
appreciated. Thant: you.
THIS IS AN ATfEN-IPTTO COLLECT A DI-.BT AND ANY INFORNfATION O13TAINF.D WII1 lit.
L SFI) FOR THAT PURPOSE.
Very truly yours,
William I.. Adler
WI.A
Grrtizil -30 Day Notification https://rr-li1.google.corrVm-iil/u/0!?tu=2&ik--8d4Od65980&view=pt&sear.
G f#4aj0
' dperva . <dperva@gmail.com>
"i;.,Osk
30 Day Notification
dperva@gmail.com<d perva@g mail.com> Tue, Sep 24, 2013 at 7:29 AM
To: michaeltimothyscott@gmail.com, piles5@aol.com
Michael Scott,
I am hereby notifying you that you have 30 days to vacate the property at 131 Holly Drive, Mechanicsburg, Pa
17055. As no written lease exists, a 30 day notice is required by Pennsylvania law. You must remove all of your
belongings no later than Friday, October 25th, 2013.
Thank you,
Brendan Perva
I of 1 5/20/2014 8:23 Al
VERIFICATION Answers to Interrogatories
I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING
ARE TRUE AND CORRECT.I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE
MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO
UNSWORN FALSIFICATION TO AUTHORITIES.
DATE:—3 ��—
CERTIFICATE OF SERVICE
1,William L.Adler,Esquire,Attorney for Plaintiff,hereby certify on May 20,2014,1 served
a copy of the within plaintiffs answers to interrogatories upon the following person via email at the
following email address
Dethlefs, Darrell
2132 Market St.
Camp Hill, PA 17011
E-mail: ddethlefs@aol.com
Zfltie��.�. aol�z
William L. Adler, Esquire
BRENDAN S. PERVA, : IN T1IE COURT OF COMMON PLEAS OF
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
vs. : CIVIL ACTION — LAW
: NO. 14-645 CIVIL
MICHAEL SCOTT,
Defendant •
IN RE: PRETRIAL CONFERENCE
ORDER
AND NOW, this 25' day of June, 2014, the parties being satisfied that the
depositions of the plaintiff's witnesses will be completed by the time of trial, nonjury trial in this
case is set for Wednesday, August 13, 2014, at 10:00 a.m. in Courtroom Number 4, Cumberland
County Courthouse, Carlisle, PA.
BY THE COURT,I
Kevi A. Hess, P.J.
`� William L. Adler, Esquire
4949 Devonshire Road
Harrisburg, PA 17109
For the Plaintiff
arrell Dethlefs, Esquire
2132 Market Street
Camp Hill, PA 17011
For the Defendant
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BRENDAN S. PERVA,
Plaintiff
v.
~PRO F HO!t3
7°f1,JUL E0 AM
tt
UMBERLAND COIJ f'`s`
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
MICHAEL SCOTT,
Defendant NO. 14-645 Civil
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO
RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Plaintiff certifies that:
1. Notice of intent to serve the subpoenas was given to William L. Adler, Esq., attorney for
Plaintiff. Mr. Adler waived the twenty -day notice requirement via email, attached hereto as
Exhibit A. Mr. Adler does not object to the subpoenas.
Date: [ ( U I `�
Respect . ly submitted,
arrell . Dethlefs, Esq.
Dethlefs-Pykosh Law Group, LLC
2132 Market St, Camp Hill, PA 17011
(717) 975-9446
ddethlefs@aol.com
Supreme Court ID No. 58805
7/10/2014
RE: Depositions
Gmail - RE: Depositions
William L. Adler <BAL@billadlerlaw.com> Wed, Jul 9, 2014 at 3:30 PM
To: Katie McDonald <kmcd7787@gmail.com>
I will waive the 20 day notice requirement to object to the subpoenas.
Bill
—Original Message—
From: Katie McDonald
Sent: Tuesday, July 08, 2014 3:28 PM
To: William L. Adler
Subject: Re: Depositions
Yes, he'll be there. We meant the notice requirement for the subpoenas we want to issue to Mr. Rhine and
Wells Fargo.
Katherine L. McDonald, Esquire
Dethlefs-Pykosh Law Group, LLC
2132 Market Street
Camp Hill, PA 17011
(c)
(o)
(f)
********************PRIVATE AND CONFIDENI1AL******************** This electronic message transmission and
any files transmitted with it, are communications from The Dethlefs-Pykosh Law Group, LLC. This message
contains information protected by the attomey/client privilege and is confidential or otherwise the exclusive
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On Tue, Jul 8, 2014 at 3:26 PM, William L. Adler <:-`: :'.;::':::::;>;;: ' ::.:::::,::•> wrote:
> For trial or depositions? I will waive the notice requirements and have Brendan, Brendan's mother and brother
there on the 17th at 9:00. Can we have his mother's deposition first? I assume your client will be there to be
EXHIBIT
1,4
htl //mail.gcog le.corn/mail/u/0/?ui=2&il e545375ca98,vievwpt&q=BAL%40billadlerlawcom&gs=true&search=qu th=1471c9b6oec8d9a3&surd=1471c9b60... 1/5
BRENDAN S. PERVA, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION
MICHAEL SCOTT, : No. 14-645 CIVIL
DEFENDANT
ORDER OF COURT
AND NOW, this 'Y day of September, 2014, following trial without a jury,
judgment is entered in favor of the Defendant and against the Plaintiff in the amount of
$13,640.56. Inasmuch as this sum represents the Defendant's ownership interest in the
real estate located at 131 Holly Drive, Mechanicsburg, Pennsylvania, upon satisfaction
of this judgment, by payment into Court or otherwise, the Defendant's ownership
interest in said property will be extinguished.
William L. Adler, Esquire
4949 Devonshire Road
Harrisburg, PA 17109
For the Plaintiff
,..f.*)arrell C. Dethlefs, Esquire
2132 Market Street
Camp Hill, PA 17011
For the Defendant
:rlm
Cr:011w ndxt_
9/V/Y
BY THE COURT:
Kevin Hess, P.
-g-
BRENDAN S. PERVA, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION
MICHAEL SCOTT, : No. 14-645 CIVIL
DEFENDANT
TRIAL MEMORANDUM AND ORDER
Plaintiff Brendan Perva initiated the above -captioned action against his half-
brother Michael Scott seeking ejectment and damages in the amount of rents due.
Defendant answered and filed counter -claims seeking equitable ownership and
reformation of the deed. Plaintiff then responded to Defendant's counter claims and
filed a counter -reply of his own claiming Defendant is barred from seeking recovery
under statute of frauds as well as estoppel, laches, and accord and satisfaction. A non -
jury trial was held on Wednesday, August 13, 2014.
In early 2011, the brothers orally agreed to a business venture whereby Plaintiff
and Defendant would both live in a house intended to be jointly owned. The property in
question is located at 131 Holly Drive, Mechanicsburg, PA. Due to credit constraints,
Defendant was not able to be included on the deed or the mortgage. Though those
documents were solely in Plaintiffs name, Defendant agreed to contribute $5,000
toward the down payment on the home. He also agreed to pay half of the mortgage
and utilities monthly. The parties took up residence in the property and began the
process of rehabilitating it. To date, Plaintiff has contributed $31,877.87 while
Defendant has contributed $7,104.17 to the improvement of the property. (Trial
Stipulations, ¶ 3). This arrangement worked for almost 2 years until the relationship
began to fray and Defendant was struggling to maintain his financial obligations. The
troubles culminated with Plaintiff serving Defendant with an eviction notice, to which
Defendant has not complied.
A number of stipulated facts were presented at trial; foremost among them stated
that "Defendant contributed $5,000.00 towards the purchase of the Property." (Trial
Stipulations, ¶14).
A purchase -money resulting trust arises in favor of the person who paid
the purchase price, when the transfer of property is made to one person
and the purchase price is paid by another. In order for a purchase -money
resulting trust to arise, the following is required (1) the transfer is made to
one person and the purchase price is paid by another; (2) the payor does
not have the intention that no resulting trust shall arise; (3) the transferee
is not the natural object of the transferor's bounty.... The law is clear that
once the evidence establishes that a party has made a partial payment
towards the purchase price, the beneficiary has a prima facie case for a
purchase -money resulting trust in his favor in the proportion that the
amount paid by him bears to the total purchase price. Purman v.
Johnston, 22 A.2d 722 (Pa. 1941) (mere payment of purchase price is
sufficient to create a resulting trust).
Fenderson v. Fenderson, 685 Pad 600, 604-05 (Pa. Super. Ct. 1996) (some internal
citations omitted).
In applying the above 3 -part test, 'Nile law requires clear, direct, precise and convincing
evidence of a resulting trust before it will convert absolute ownership into an estate of
lesser quality." Id.
We first find the property in question was titled solely to Plaintiff, (Trial
Stipulations, IT 1), while the down payment was provided by Defendant. Plaintiff
asserted during testimony that because the $5,000.00 was a gift to him, as evidenced
by the "Gift Letter," that the $5,000.00 down payment should not be considered as
having originated from Defendant. This proposition is directly at odds with the stipulated
facts. "Defendant contributed $5,000.00 towards the purchase of the Property."
2
(Stipulated Facts, If 4) (emphasis added). "Stipulated facts are binding upon the court
as well as the parties." Borough of New Bloomfield v. Wagner, 35 A.3d 839, 846 n.10
(Pa. Commw. Ct. 2012) (citing Park v. Greater Delaware Valley Savings & Loan
Association, 523 A.2d 771, 773 (Pa. Super. Ct. 1987)). Second, there was no testimony
to indicate that Defendant did not intend a resulting trust to be formed. There was
substantial testimony as to Plaintiff's belief that he was to be the sole owner of the
property. However, Plaintiff's beliefs are not at issue. Lewis v. Spitler, A.2d 994, 997
(Pa. Super. Ct. 1979) (trustee's intent irrelevant to the determination of a resulting trust,
only beneficiary's lack of intent could rebut the presumption of a trust). With no
evidence to the contrary, it is presumed that Defendant intended to have an interest in
the property. Finally, Plaintiff was not the "natural object" of Defendant's "bounty."
"When the transfer of property is made to a wife, child or other natural object of the
bounty of the person who contributed to the purchase price, it is presumed that the
transaction was intended as a gift and a resulting trust does not arise. However, the
relationship of brother and sister, does not, per se, give rise to a presumption that one is
the object of the other's bounty." Fenderson, 685 A.2d 600, 606. Defendant has met
his burden and we deem a resulting trust to have been created at the time of the sale.
"The owner of the legal title to land may maintain ejectment against every
person but the holder of the equitable title." Dutton's Estate, 57 A. 719, 721 (Pa. 1904).
Having found that Defendant is a holder of at least a part of the equitable title, ejectment
in favor of Plaintiff, as the legal title holder, would be improper.
Defendant seeks reformation of the deed based on his equitable ownership
established above. The default rule for reformation of a deed is that the party seeking
3
reformation must prove by clear, precise and indubitable evidence either fraud or mutual
mistake. Gallagher v. Finnin, 192 A.2d 136, 137 (Pa. Super. Ct. 1963). However,
[R]eformation of a deed may also be made by a court of equity when there
has been a mistake by one party with knowledge of that mistake by the
other party. A party seeking reformation on the basis of such unilateral
mistake may be granted relief if the party against whom reformation is
sought has such knowledge of the mistake as to justify an inference of
fraud or bad faith. A corollary to the aforementioned principles is the rule
that the mistake under scrutiny, as well as the actual intent of the parties,
must be clearly proven.
Dudash v. Dudash, 460 A.2d 323, 327 (Pa. Super. Ct. 1983).
Defendant asserts unilateral mistake as the basis for his relief. Specifically,
Defendant alleges Plaintiff was aware of Defendant's belief that Defendant would be
added to the deed to the property, took money from Defendant for the property, and
then subsequently attempted to deny Defendant had any interest in the property.
Conversely, Plaintiff testified that he was unaware of any such belief by the Defendant.
We find Plaintiff less than convincing in this instance. Defendant produced emails on
which Plaintiff had been copied which expressly indicated Defendant's desire to be
added to deed despite the difficulties in financing. Additionally, every month Plaintiff
collected half of what was stipulated to as the mortgage payment and utilities, which
included the property taxes and insurance costs for the property. Further, the original
informal agreement between the parties was that the brothers would invest in this
property together. Plaintiff provided no evidence that the informal agreement no longer
applied simply because Defendant was unable to obtain financing. We are satisfied that
Defendant has sufficiently established his mistake in believing he would be added to the
deed.
4
However, reformation of a written instrument will not be granted to the detriment
of subsequent bona fide purchasers, Iienholders, or encumberancers who took without
notice of the latent equity. 79 A.L.R.2d 1180, 1187; See also Concord Liberty Say. &
Loan Asso. v. Freedman, 61 Pa. D. & C.2d 487 (C.P. 1973) (defendant in reformation
action could have had notice and therefore reformation action could proceed) and
Essner v. D'Andrea, 16 Phila. 262 (1986), Aff'd without opinion, 544 A.2d 1047 (1988)
(reformation of the deed was proper under a resulting trust even when property in
question was subject to a mortgage of a third -party creditor who took with notice of
plaintiff's down payment).
Essner, supra, granted the reformation of the deed, despite the subsequent
mortgage on the property because the payment by the plaintiffs was known to the bank.
Here, it was known that Defendant was paying Plaintiff $5,000 towards the down
payment of the property, however it cannot be said that the mortgagor in this case
encumbered the property with notice of Defendant's equitable rights. Defendant signed
a gift letter which stated that he was providing the $5,000 down payment as a gift to his
brother without expectation of repayment. From the perspective of the mortgagor,
Defendant abnegated all claim to the money that was used as a down payment.
Therefore, reformation of the deed would be a violation of the mortgagor's subsequent,
good -faith encumberance upon the property.
Defendant's payments to Plaintiff were for the mortgage upon the property and
monthly utility expenses incurred, as opposed to rent. (Stipulated Fact, ¶ 5). Under the
doctrine of a resulting trust, the Defendant accrues an ownership interest. Thus,
landlord -tenant damages are improper, as no landlord -tenant relationship exists.
As to Plaintiffs defenses, Galford v. Burkhouse, 478 A.2d 1328, 1334 (Pa.
Super. Ct. 1984) held that "while parole evidence concerning the circumstances
surrounding the execution of a deed is admissible to challenge the legal title and
establish a resulting trust, such parole evidence cannot be the basis for an oral
express trust which would be violative of the Statute of Frauds." (emphasis added).
Here, parole evidence would be no bar to the establishment by this Court of a resulting
trust. In any event, the establishment of the resulting trust in favor of Defendant was
based not on any oral agreement between the parties, but was instead based squarely
on the stipulations provided by parties which stated that Defendant paid $5,000.00
towards the purchase of the property.
Plaintiff's claim for estoppel fails on its face. In describing estoppel, our courts
have held that
[t]he essential elements of estoppel are: (1) Misleading words, conduct or
silence by the party against whom the estoppel is asserted, (2)
unambiguous proof of reasonable reliance on the misrepresentation by the
party seeking to assert the estoppel, and (3) no duty of inquiry on the party
seeking to assert estoppel.
Straup v. Times Herald, 423 A.2d 713, 720 (Pa. Super. Ct. 1980) (internal citations
omitted, overruled in part on other grounds).
While the Defendant may have been silent concerning the enforcement of his interest,
there are no facts alleged or on the record that indicate that Plaintiff relied on the silence
of any misleading conduct. To the contrary, Plaintiff sought and received monthly
"mortgage payments," from the Defendant (Stipulated Facts, IT 5), which belies any
argument of estoppel.
Laches is also no bar to Defendant's recovery.
6
Laches bars relief when the complaining party is guilty of want of due
diligence in failing to promptly institute the action to the prejudice of
another. Thus, in order to prevail on an assertion of laches, [claiming
party] must establish: a) a delay arising from [opposing party's] failure to
exercise due diligence; and, b) prejudice to the [claiming party] resulting
from the delay.
Sprague v. Casey, 550 A.2d 184, 187 (Pa. 1988) (internal citations omitted).
While Defendant did not show proper due diligence by allowing the deed, title, and
mortgage to be placed solely in Plaintiff's name and continuing to pay for the property
for two years without complaint, Plaintiff did not allege nor suffer any prejudice. A
prudent, cautious person would have sought at least a modicum of assurances that he
was entitled to a return on his investment. Regardless of Defendant's neglect, however,
Plaintiff put forth no evidence and none was indicated in the counter -reply, to suggest
that Plaintiff had been in any way prejudiced by Defendant's delay.
An accord and satisfaction is the result of an agreement between the
parties which may be and usually does result from an implied agreement
arising from the circumstances. If an agreement stems from a disputed
claim, the acceptance of an amount less than the creditor claims to be
due, when tendered by the debtor in full satisfaction of the creditor's claim,
becomes a completed accord and satisfaction ... unless vitiated by fraud,
deception or some other invalidating element.
Law v. Mackie, 95 A.2d 656, 660 (Pa. 1953).
Plaintiff has alleged no facts in his Counter-Reply/New Matter which would
indicate that there was any settlement or agreement between the parties in which
Defendant was accepting a lesser interest in the property beyond the simple statement
that Defendant's claims are barred by accord and satisfaction. In fact, the parties' other
brother, Brad Perva, testified that while attempting to mediate the situation, Defendant
would hear no offer of settlement in which his interest in the property was removed
7
without being fully reimbursed. There is thus no support for the Plaintiff's allegation of
accord and satisfaction.
Having found that a resulting trust exists in favor of Defendant proportional to the
total sum he has paid, it behooves us to fashion a final resolution of this dispute. Courts
in equity are provided broad powers, which allow the flexibility to form remedies to meet
the requirements of the case. See Buchanan v. Brentwood Fed. Say. & Loan Asso.,
320 A.2d 117, 126 n.17 (Pa. 1974). However, while "[e]quity provides remedies where
the law has established a right but not an adequate remedy..., equity must follow the
law. A court of equity has no more right than has a court of law to act on its own notion
of what is right in a particular case [and] must be guided by the established rules and
precedents" Sandin v. Dempsey, 27 Pa. D. & C.5th 33, 62 (C.P. 2012), affd without
opinion, 75 A.3d 541 (Pa. Super. Ct. 2013). Plaintiff has requested to be granted
exclusive possession and amounts owed by Defendant. Conversely, Defendant has
requested to be instituted as a part-owner in the property, including being placed on the
deed. For the preceding reasons, the requested relief by both parties is largely denied.
The Plaintiff will retain the title to the property solely in his name, just as the obligation
under the mortgage will be solely Plaintiffs.1 However, Plaintiff must recompense
Defendant for the money paid towards the property in order to divest Defendant of his
interest in the property. Specifically, Defendant is entitled to recover the $5,000 down
payment and any payments made to the mortgage during the course of residency. See
Kauffman v. Kauffman, 109 A. 640, 642 (Pa. 1920) ("[resulting trust] payment[s] may be
temporarily deferred or made by installments"). Additionally, Defendant shall be owed
1 Reformation of the mortgage in addition to the deed is untenable due to lack of mutual mistake, unilateral
mistake, fraud, accident, or bad faith. Regions Mortg., Inc. v. Muthler, 889 A.2d 39 (Pa. 2005).
8
for any improvements Defendant made to the property. In this regard, we include the
$2,800 for contracted drywall work in the amount owed to Defendant, thereby making
the total improvements $7,104.17. (Trial Stipulations, ¶ 3). The amount owed to
Defendant shall be reduced by the amount owed in arrearages, $10,422.49. (Trial
Stipulations, ¶ 6). This amount is proper in light of the fact that Defendant made only
mortgage payments for the months of September through December of 2013. (Trial
Stipulations, 3). Thereafter, Defendant made no payments but continued residing on
the property. Plaintiff is entitled to recover the unpaid utility payments from the period of
Defendant's partial payment. Plaintiff then would be entitled to repayment of both utility
payments and house payments, by way of contribution, for the period of Defendant's
non-payment. Therefore, the numbers break down as follows:
Amount Due to Defendant:
Down Payment - $5,000.00
Mortgage Payments - $824.75 * 29 = $23,917.75 12 = $11,958.88
Improvements - $7,104.17
Total - $24,063.05
Amount Due to Plaintiff:
Arrearages - $10,422.49
Net Amount Due to Defendant:
$24,063.05 - $10,422.49 = $13,640.56
We will enter judgment on behalf of the Defendant with the understanding that
once satisfied, any ownership interest in the real estate at 131 HoIIy Drive,
Mechanicsburg, Pennsylvania, will be extinguished.
ORDER
11
AND NOW, this g day of September, 2014, following trial without a jury,
judgment is entered in favor of the Defendant and against the Plaintiff in the amount of
9
$13,640.56. Inasmuch as this sum represents the Defendant's ownership interest in the
real estate located at 131 Holly Drive, Mechanicsburg, Pennsylvania, upon satisfaction
of this judgment, by payment into Court or otherwise, the Defendant's ownership
interest in said property will be extinguished.
BY THE COURT,
10
BRENDAN S. PERVA,
v.
1ED tJ1 FicE •
OF THE P.
Mil OCT AM 11
CUMSERLANDCiUN
PENNS YLVANI kl
: IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
•
: CIVIL ACTION
•
•
MICHAEL SCOTT,- : NO. 14-645 CIVIL
Defendant
4 PRAECIPE TO SETTLE, DISCONTINUE AND SATISFY
TO THE PROTHONOTARY:
Please mark the above -captioned matter settled, satisfied and discontinued. The
Defendant's interest in the subject property located at and known as 131 Holly Drive,
Mechanicsburg, rennsylvania, is hereby extinguished.
Date:
Date:
BY:
Darr- C. fs, Esquire
Attorney for Defendant
BY:
William L. Adler, Esquire
Attorney for Plaintiff