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HomeMy WebLinkAbout05-3361 Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. You have been sued in court, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you, You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the 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. NOTICE CIVIL ACTION-LAW SARAH M, SHULLER, Defendant. CIVIL TERM NO, 2005-- 3 3 ~ I v, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALBERT H. SHULLER and SARANNE E, SHULLER, husband and wife, ALBERT H, SHULLER and SARANNE E, SHULLER, husband and wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v, NO, 2005- j J ~ { CIVIL TERM SARAH M, SHULLER, Defendant. CIVIL ACTION-LAW COMPLAINT NOW, come Plaintiffs, Albert H, Shuller and Saranne E, Shuller, by and through their attorneys, O'BRIEN, BARIC & SCHERER, and file the within Complaint and, in support thereof, set forth the following: 1. Albert H, Shuller and Saranne E, Shuller, husband and wife, are adult individuals who reside at 120 Leeds Road, Newville, Cumberland County, Pennsylvania 17241, 2, Sarah M, Shuller is an adult individual who resides at 414 South Richard Street, Bedford, Bedford County, Pennsylvania 15522, 3, Albert H, Shuller and Saranne E, Shuller are the record owners of a certain property known as 100 Leeds Road, Newville, Cumberland County, Pennsylvania (the "Property"). 4, Albert H. Shuller and Saranne E, Shuller acquired title to the Property from Sarah M, Shuller by virtue of a certain deed dated December 7, 200 I and recorded on December 10, 2001 in the Cumberland County Recorder of Deeds Office in Book 249, Page 2677, et seq. 5. A true and correct copy of the Deed is attached hereto as Exhibit "1" and is incorporated by reference. 6. Prior to the execution of the Deed, Albert H, Shuller, Saranne E. Shuller and Sarah M, Shuller executed a certain agreement relating to the Property which agreement purported to establish a life estate interest in the Property for Sarah M, Shuller. ("Life Estate Agreement"), A true and correct copy of the Life Estate Agreement is attached hereto as Exhibit "2" and is incorporated by reference. 7, Pursuant to the terms of the Life Estate Agreement, Sarah M, Shuller was obligated to perform the following: a) maintain the Property; b) pay the real property taxes for the Property; c) provide adequate insurance for the Property; d) pay all utilities serving the Property; e) pay heating expenses for the Property; and f) undertake and pay for normal structural repair expenses, 8, Shortly after the execution of the Life Estate Agreement and recording of the Deed, Sarah M, Shuller informed Albert H. Shuller and Saranne E. Shuller that she would not be able to pay for the obligations identified in paragraph 7, 9. Since September, 2002, Albert H. Shuller and Saranne E. Shuller have incurred and continue to incur costs and expenses to meet the obligations identified in paragraph 7, 10, To the date ofthis Complaint, Albert H. Shuller and Saranne E, Shuller have expended in time and services provided the sum of$14,595.11 to meet the obligations identified in paragraph 7. 11, The Life Estate Agreement provides, in relevant part, as follows: "Failure to comply with the terms of this agreement on the part of Sarah Marie Shuller will constitute a violation of the "Life Time Estate" agreement between the parties and make the agreement null and void." COUNT I-QUIET TITLE ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 12, Plaintiffs incorporate by reference paragraphs one through eleven as though set forth at length, 13, Pa.R.C,P, 1061 (b) provides, in relevant part, as follows: "(b) The action (to quiet title) may be brought (1) to compel an adverse party to commence an action of ejectment; (2) where an action of ejectment will not lie, to determine any right, lien, title or interest in the land or determine the validity or discharge of any document, obligation or deed affecting any right, lien, title or interest in land; (3) to compel an adverse party to file, record, cancel, surrender or satisfy of record, or admit the validity, invalidity or discharge of, any document, obligation or deed affecting any right, lien, title or interest in land; or (4) to obtain possession ofland sold at a judicial or tax sale," 14, Pa,R.C,P. 1066, relating to "form of judgment or order" in a quiet title action provides: "(a) The Court shall grant appropriate relief upon affidavit that a complaint containing a notice to defend has been served and that the defendant has not filed an answer, or after a hearing or trial on the pleadings or merits, (b) Upon granting relief to the plaintiff, the court (1) shall order that the defendant be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest or claim of the plaintiff set forth in his complaint, unless the defendant takes such action as the order directs within thirty (30) days thereafter. If such action is not taken within the 30-day period, the prothonotary on praecipe of the plaintiff shall enter final judgment; (2) shall enter a final judgment that a docwnent, obligation or deed affecting a right, lien title or interest in the land is canceled or is valid, invalid or discharged or that a copy of a lost plan, docwnent obligation or deed is an authentic copy; (3) shall enter a final judgment ordering the defendant, the prothonotary, or the recorder of deeds to file, record, cancel, surrender or satisfy of record, as the case may be, any plan, docwnent, obligation or deed determined to be valid, invalid, satisfied or discharged, and to execute and deliver any docwnent, obligation or deed necessary to make the decree effective; or (4) shall enter any other order necessary for the granting of proper relief," 15, Sarah M. Shuller has breached the terms of the Life Estate Agreement by failing to perform her obligations under and pursuant to the Life Estate Agreement, 16, The existence of the Life Estate Agreement presents an alleged cloud upon the title to the Property prohibiting conveyance of the Property by Albert H, Shuller and Saranne E, Shuller. 17, Pursuant to Pa,R.C,P, 1066, Albert H. Shuller and Saranne E, Shuller respectfully request the Court to (a) declare that they are the fee simple owners of the Property; (b) compel Sarah M, Shuller to release the Life Estate Agreement and ( c) determine and order that the Life Estate Agreement is invalid and discharged, WHEREFORE, Plaintiffs respectfully request the Court: (1) declare that Albert H. Shuller and Saranne E, Shuller are the fee simple owners ofthe Property; (2) order Sarah M, Shuller to release any interest she holds in the Property; (3) determine and order that the Life Estate Agreement is invalid and discharged; (4) award reasonable attorneys' fees and costs in favor of Plaintiffs and (5) grant such other relief as the Court deems appropriate, COUNT II-DECLARATORY RELIEF ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 18, Plaintiffs incorporate by reference paragraphs one through seventeen as though set forth at length, 19, Sarah M, Shuller has threatened to not join in to any conveyance of the Property by Albert and Saranne Shuller, 20, An actual controversy exists between Albert and Saranne Shuller and Sarah M. Shuller whether the Life Estate Agreement is null and void and of no effect. WHEREFORE, Plaintiffs respectfully request the Court to: (l) declare that Albert and Saranne Shuller are the fee simple owners of the Property; (2) order Sarah M. Shuller to release any life estate interest she may have in the Property; (3) determine and order that the Life Estate Agreement is invalid and discharged; (4) award reasonable attorneys' fees and costs in favor of Plaintiffs and (5) grant such other relief as the Court deems appropriate, COUNT III-BREACH OF CONTRACT ALBERT H. SHULLER and SARANNE E. SHULLER V. SARAH M. SHULLER 21, Plaintiffs incorporate by reference paragraphs one through twenty as though set forth at length, 22, During the period November 29,2001 through December 3,2001, Albert H, Shuller and Saranne E, Shuller loaned to Sarah M, Shuller the sum of$3,629,98 so Sarah M. Shuller could meet obligations she had to her creditors. 23. At the time ofloaning the money to Sarah M, Shuller, Sarah M, Shuller orally agreed to repay the money loaned to her by Albert H. Shuller and Saranne E, Shuller. Repayment was to be made with payments of at least $100.00 per month, 24. During the period December 1,2001 through August, 2002, Sarah M, Shuller made payments against the loaned amount totaling $850,00. 25, Sarah M, Shuller has failed and refused to make any further payments against the loan since August, 2002 and is in breach of her agreement to repay the money. WHEREFORE, Plaintiffs respectfully request this Court enter judgment in their favor and against Sarah M, Shuller for the sum of $2,779,98 plus interest, costs and expenses. dab.dirlrealestatelshullerlcomplaint.pld Respectfully submitted, David A, Baric, Esquire I.D.# 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiffs VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by our attorney in this litigation. The language of the statements is not our own, We have read the statements; and to the extent that they are based upon information which we have given to our counsel, they are true and correct to the best of our knowledge, information and belief, We understand that false statements herein are made subject to the penalties of 18 Pa,C.s. S 4904 relating to unsworn falsifications to authorities, 2hJ DATE: or..,,;( r - d :.,- ., ~:~c;~ S ~l~ ,/ Saranne E, Shuller 1- / Jo) 7v.-.. Tax Parcel No. '1J{IS 1J'E'E1J -<t: Made the 7th day of December, 2001; BETWEEN Sarah M. Shuller, single person, of Bedford, Bedford County, Pennsylvania, n_ M . <:.'j, - ~.~. 0 >- - . ~ 1.:...:,- .--i r-i -, ....:... ,~ ::::> o E:: -. v a::: ~.~) GRANTORS, c::> r-\ ,~ c..:> _.-:r ".! L.I..J .-": (.J D .--l ,-. ..., 0- . AND Albert H. Shuller, Jr. and Saranne E. Shuller, husband and wife of Newville, Cumberland County, Pennsylvania, GRANTEES, WITNESSETH, that the Grantor, for and in consideration of One Dollar and 00/100 ($1.00) DOLLAR, lawful money of the Unfted States of America, to the Grantors in hand well and truly paid by the Grantees, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged and the Grantors being therewith fuffy satisfied, do by these presents grant, bargain, sell and convey unto the Grantees forever ALL THAT CERTAIN tract of land situated in Penn Township, Cumberland County, Pennsylvania more particularly bounded and described as follows: TRACT NO.1: BEGINNING at a lime stone in the Pine Grove Road corner of land now or formerly of Crane Iron Company; thence by lands formerly of A. E. Borough, South 71 degrees East 11.5 perches to a lime stone; thence by same South 18 Y. degrees East 14.5 perches to a maple tree; thence by lands now or formerly of Harry Cockley, North 49 Yo degrees West 10.4 perches to a post; thence North 58 % degrees West 12 perches to a stone at edge of bridge over run in Pine Grove Road corner of lands now or formerly of Charles Garver; thence by said Pine Grove Road North 21 Y. degrees East 5.6 perches to the place of BEGINNING. CONTAINING 109 perches EXHIBIT "1" bUJ.i 2iS r;,lt2677 TRACT NO.2: BEGINNING at a stone in the Pine Grove Road; thence along said road, North 26 Y. degrees East, 12.4 perches to a stone corner of lands now or late of Charles Garver; thence by the latter, North 34 degrees West, 11 perches to a post corner of lands now or late of said Garver; thence by same, South 56 degrees West, 8.9 perches to a stone corner; thence along line of lands now or late of Noah Cockley, South 27 % degrees East, 17.1 perches to the place of BEGINNING. CONTAINING 133 perches, more or less TRACT NO.3: BEGINNING at a spike in the center of the Pine Grove Road, thence by land now or formerly of the estate of Charles Garber, deceased, South 50 % degrees West, 302 feet to a post; thence by lands now or formerly of Albert H. Shuller, et aI., South 39 % degrees East, 174.5 feet to a bolt in the center ofthe aforementioned Pine Grove Road; thence by the center of said road, North 20 % degrees East, 357.3 feet to a spike in the center of said road, the place of BEGINNING. CONTAINING 6/10 OF AN ACRE BEING the same property which Albert H. Shuller, and Grayce H. Shuller, his wife, of Bedford, Bedford County, Pennsylvania granted and conveyed unto Sarah M. Shuller, by deed dated February 27, 1990 and recorded in the Office ofthe Recorder of Deeds in and for Cumberland County in Deed Book K, Volume 34, Page 890. . THIS transfer is between brother and sister and therefore is tax exempt in accordance with 72 P.S. ~ 8102-c.3(6). AND the Grantors hereby warrant specially the property herein conveyed. IN WITNESS WHEREOF, the Grantors have hereunto set their hands and seals the day and year first above written. Witness: ff!gJ,uh.JfL/1 &tv ~~.~ Sarah M. shuller noo~ 249 p:M2G'i'8 COMMONWEALTH OF PENNSYLVANIA COUNTY OF c.lJN\e,et...LA~b ss. ON THIS, the 7TH day of Oe-c..e""be-R.. , 2001, before me the undersigned officer, personally appears .sARA 1-1 M. S th..>LLeR" known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within deed and acknowledged that they executed the same for the purpose therein contained. WITNESS my hand and seal the day and year aforesaid. '''''f'". NOlarial Stal 1_ M. RobiJuoa, NOlIry Public Carlisi. Bom. ClImberlancl County My Commission Expi... lune 6, 2005 I hereby certify that the precise mailing address of the Grantee is: 1.;1.0 LEeos RoAD Me......._"" \\e. I PA 17 a"ll ~~PA · Attor e for Gra e~ BOOK 24J i':M2679 BE IT KNOWN TO ALL MEN AS FOLLOWS: And Now This The 29'. Day of November in the Year of Our Lord 2001. I Albert H. "BUCK" Shuller and I Saranne E. Shuller, wife of Albert do hereby grant and convey the following "LIFE TIME EST ATE" to Sarah Marie Shuller, the sister of Albert. This Life Time Estate will permit her to live in the house located at 100 Leeds Road, Newville, Pa. 17241. This structure known as the "Big House" or "Old School House", will be her's to inhabit and reside in for as long as she is physically and mentally capable of doing so. She may not lease or sub-lease or convey this residence or ground to anyone under the terms of this agreement. In return for this Life Time Estate, Sarah Marie Shuller will be expected to maintain the property in a proper and acceptable liveable condition. She will pay the yearly taxes on the property along with adequate insurance to protect the property. She will be expected to pay all utilities, heating expenses and the normal structural repair expenses for the dwelling in which she resides. Failure to comply with the terms of this agreement on the part of Sarah Marie Shuller will constitute a violation ofthe "Life Time Estate" agreement between all parties and make the agreement null and void. Any financial considerations invested into the property by Sarah Marie Shuller up to the point of the violation will be forfeited by her. This agreement will be binding upon the heir's of the Estate of Albert H."BUCK" Shuller and Saranne E. Shuller. S;g~~ Albert H. "BUCK" Sh er (Grantor) (seal) Date I/-'z~-c/ Signed k~ ,t AL.l4c -$aranne E. Shuller (Grantor) (seal) Date // -.29' -<1 j Signed ~~~ Sarah Marie Shuller (Grantee) (seal) Date h - Y'\ -0 \ cc: Sarah Marie Shuller Michele M. Shuller EYI;:~rI' 112." 8 ....., ,= ~ <-"" ~1 td. ~:!l ""-\:::;, c: .- ~~~ ~ I i1J? ~ (\ ~ ,.,. :-9 ~ (J\ .._L::!J ::11;: ~;?("') ." ~~ '" :,..;o--;fn ~, ~. ..j; =2 Ul ~. :D '-. 0 -< ~ ~ ~ ~ \]\\ ~ ~ ~ " ~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-03361 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SHULLER ALBERT H ET AL VS SHULLER SARAH M R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SHULLER SARAH M but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of BEDFORD County, Pennsylvania, to serve the within COMPLAINT & NOTICE On July 18th , 2005 , this office was in receipt of the attached return from BEDFORD Sheriff's Costs: Docketing Out of County Surcharge Dep Bedford County Postage 18.00 9.00 10.00 27.55 .74 65.29 07/18/2005 OBRIEN BARIC so~.sw ~</~~~/ ~/~--r; R: Thomas Kline Sheriff of Cumberland County SCHERER Sworn and subscribed to before me this 2:J~ day of c...l P.. I J 2~.D. . ..... Q Yh.jp~. ;~ Prothonotary In The Court of Common Pleas of Cumberland County, Pennsylvania Albert H. Shuller et al VS. Sarah M. Shuller No. 05-3361 civil Now, July 6, 2005 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Bedford County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .~~rd~~~ Sheriff of Cumberland County, P A Affidavit of Service Now, ,Tnl y 1] th ,20~, at12: 25 o'clock p M. served the within ("'nmpl;::'lint upon C::.=.r;::'lh M Shllllpr at .11.1 C::nllrh R;rhr'lrn Strppt. Reoforn, PA 155)/. by handing to hpr pprq"nrllly a trl1P copy of the original comp 1" i n t and made known to her the contents thereof. So answers, -~;#- S ri f of 7$if:{ COSTS SERVICE MILEAGE AFFIDAVIT $ Sworn and subscribed before me this I~ day ofq 1.0 .~ ,20.Q2.. KEU.YLN~i\RYc&~ BEDFORD . I'" "'r'\"MI~~ION RES MARCH 5. m. '...., ';"'''-~'-''''''-'''--''''--'" $ ALBERT H. SHULLER and SARANNE E. SHULLER, Husband and wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLANO COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW No.: 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant : JURY TRIAL DEMAN OED PRAECIPE TO LIST FOR ARGUMENT To the Prothonotary of Cumberland County: Please list the Preliminary Objections of Defendant to Plaintiffs' Complaint for Oral Argument on August 24, 2005 at 9:00 A.M. By . ALLISON ~ - rt::? Brad y . Allison squire-"''''' Pa. 10 No. 8007 Attorney for Defendant 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 ? Date: TtN/y ~1r l..()rJ5 '?::~ C) G:;' -i\ (..'.j'l C,,~, .~ ALBERT H. SHULLER and SARANNE E. SHULLER, Husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -. LAW No.: 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2005, upon consideration of the Preliminary Objections of Defendant Sarah M. Shuller to Plaintiffs' Complaint; any response thereto; and after holding hearing or argument regarding same, it is hereby ORDERED, DIRECTED, AND DECREED as follows: 1. The aforesaid Preliminary Objections are GRANTED. 2. Plaintiffs' claims in Counts I, II, and III of the Complaint for attorney's fees and/or expenses incurred in this litigation are dismissed with prejudice. By the Court, J. ALBERT H. sHULLER and SARANNE E. SHULLER, Husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION- LAW No.: 2005-336'1 CIVIL TERM SARAH M. SHULLER, Oefendant JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT ANO NOW, comes Defendant Sarah M. Shuller, by and through her attorney, Bradley D. Allison, Esquire, and files these Preliminary Objections to Plaintiffs' Complaint pursuant to Pa.R.C.P. 1028 et seq., respectfully averring as follows: 1. The instant case arises out of an agreement between the parties hereto for the transfer of real estate to Plaintiffs and the providing of a Life Time Estate in such property by Plantiffs to the Defendant. 2. This case was instituted by the filing of a Complaint, which has been served upon the Defendant. 3. In Counts I and II of the Complaint, Plaintiffs seek reasonable attorney's fees and costs or expenses incurred in the litigation against the Defendant. (See Complaint, Wherefore Clause) In Count III, Defendants appear to be seeking expenses of this litigation against Defendant. (See Complaint, Wherefore Clause) I. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER 4. Paragraphs 1 through 3 are incorporated herein by refHrence as if set forth at length. 5. Under the Pennsylvania Rules of Civil Procedure, Preliminary Objections in the Nature of a Demurrer may be filed to a Pleading which fails to state a claim upon which relief may be granted. Pa. R.C.P. 1028 (a) (4). 6. Although Defendants seek attorney's fees and expenses of litigation in this case, they have failed to set forth any authority for the award of the same by the Court. 7. Under Pennsylvania Law, absent an Agreement betwel3n the parties for the payment of fees, statutory authority for the same, or some other exception, each party generally is responsible for its own attorney's fees. Halrt v. O'Mallev. 2001 Pa. Super. 221, 781 A2d 1211 (2001). 8. Moreover, under Pennsylvania law, absent a statute awarding same or an agreement between the parties, each side to the lawsuiit pays its own expenses to litigate. Lavelle v. Koch, 532 Pa. 631,617 A.2d 319, 3:!3 (1992). 9. Plaintiffs' Complaint fails to attach any document wherEiby Defendant agreed to pay Plaintiffs' attorney's fees and expenses; no averment exists in Plaintiffs' Complaint setting forth an oral agreement between the parties as to the payment of attorneys fees and expenses; nor do Plainitiffs cite any statute under the circumstances set forth in the Complaint that justify the award of attorney's fees and/or expenses. 10. Based on the foregoing, Plaintiffs' Complaint fails to state a proper claim for the award of attorneys' fees and/or expenses. The claims therefore should be dismissed with prejudice. WHEREFORE, Defendant Sarah M. Shuller respectfully request your Honorable Court to grant her Preliminary Objections to Plaintiffs' Complaint in the Nature of a Demurrer and dismiss Plantiffs' claims for attorney's fees and/or expenses incurred in this litigation with prejudice. Respectfully Submitted, By Bra yO. AI' on, PA. 1.0. No. 80072 102 W. Penn St., Ste. 2 Bedford, PA. 155,22 (814) 623-7566 " CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 29th day of July, 2005, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: Oavid A. Baric, Esquire 19 West South Street Carlisle, PA 17013 By ~ f-_' ,-~.:. ',,:.r ,__..,,."1 c:.: \..,. -,~"' n ":';n .-1 :;1=11 j,ir:..:. I=-~."~ ~,..1 <") c.] IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ALBERT H. SHULLER and SARANNE SHULLER, Plaintiffs, :CIVIL ACTION - LAW v. :No. 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant STIPULATION AND NOW, this / /-#l day of flu.j I.A.S "t 2005, comes Defendant, Sarah M. Shuller, by and through her attorney, Bradley D. Allison, Esquire, and Plaintiffs Albert H. Shuller and Saranne Shuller, by and through their attorney, Oavid A. Baric, Esquire, and enter this Stipulation as follows: 1. Plaintiffs hereby withdraw and forego any further claim for attorney's fees and expenses of suit, other than costs of suit (filing and sheriffs service fees) as that phrase is defined and interpreted under Pennsylvania law, which has or may be raised in the Complaint. 2. Defendant shall have thirty (30) days from the filing of this Stipulation in Court to file her Answer with New Matter to Plaintiffs' Complaint and any Counterclaim(s). 3. Counsel for Plaintiffs will file the instant Stipulation and notify the Cumberland County Court Administrator of the Stipulation and removal of Defendant's Preliminary Objections from the Argument Court List currenty scheduled for August 24, 2005. WITNESS the hands and seals of the undersigned counsel on behalf of their respective clients with intent to be legally bound and having been "tho',ed by "e;~;e"ts to erne, tho SdP"t~ ~ Bra ey O. Air on, Esquire David A. Baric, Esquire Pa. 1.0. No. 80072 Pa. 1.0. No. 44853 Attorney for Defendant Attorney for Plaintiffs 102 W. Penn Street, Ste. 1 19 West South Street Bedford, PA 15522 Carlisle, PA 17013 (814) 623-7566 (717) 249-6873 n ~ ~~r: ' fT'.): -"7 n' 'Z<'. (J.~ '"' It.: z. ::.~ ~ 2.:: G? - CJ' :!2 ~.. ~ ~-,-, fl"\ -" -0 hj~ ~n (') ) -i-or ::'-....\ GO gfTI ~ u:> .. N 0' ALBERT H. SHULLER and SARANNE E. SHULLER, Husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW No.: 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant NOTICE TO PLEAD TO: Albert H. Shuller Saranne E. Shuller c/o David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter and Counterclaim(s) within twenty (20) days from service hereof or a judgment may be entered against you. Date: September 19, 2005 Law Office of Bradley D. Allison BY: PA I.D. No. 80072 102 W. Penn Street, Suite 1 Bedford, PA 15522 (814)623-7566 ALBERT H. SHULLER and SARANNE E. SHULLER, Husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLANO COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW No.: 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIMS AND NOW, comes the Defendant, Sarah M. Shuller, by and through her attorney, Bradley D. Allison, Esquire, and files the within Answer with New Matter and Counterclaim(s), respectfully averring in support thereof as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted with clarification. It is admitted that Plaintiffs acquired title from Defendant to the property referenced in Paragraph 4 of Plaintiffs' Complaint. However, to the extent that such acquisition was without further obligation by Plaintiff(s) or proper under the circumstances more particularly referred to in this Answer and New Matter below, the same is specifically denied, and strict proof thereof is demanded at the time of trial. 5. Admitted in part and denied in part. It is admitted that a copy of the Deed conveying the property is attached to Plaintiffs' Complaint. It is specifically denied that such Deed was properly done in the interests of Defendant, and strict proof thereof is demanded at the time of trial. 6. Admitted in part and denied in part. It is admitted that Defendant signed the document labeled Life Time Estate Agreement. It is further admitted that the same was signed prior to execution of the Oeed. However, Plaintiffs were aware that due to financial problems experienced by Defendant that Defendant was, at the time of the signing of the Agreement, unable to meet the terms of the alleged Life Time Estate Agreement. Moreover, Plaintiffs were specifically aware of such financial difficulties in as much as Plaintiff Albert Shuller was acting as the agent, servant, employee, and/or representative of Defendant at such time to purportly help her resolve such financial difficulties. It is specifically denied therefore that an enforceable Agreement was reached between the parties, and strict proof thereof is demanded at the time of trial. 7. Paragraph 7 of Plaintiffs' Complaint contains conclusions of law to which no responses are required. By way of further response, Plaintiffs were aware at the time the Agreement was signed that Defendant was unable in meet the terms and provisions of the alleged Agreement. Strict proof to the contrary is demanded at the time of trial. 8. The averments of Paragraph 8 of Plaintiffs' Complaint are specifically denied. To the contrary, Plaintiffs knew at the signing of the Agreement, not after the execution of the Life Time Estate Agreement and recording of the deed, that Defendant would not be able to pay for the obligations as set for in the Life Estate Agreement. Strict proof to the contrary is demanded at the time of trial. 9. After reasonable investigation, Oefendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 9 of Plaintiffs' Complaint. The same, therefore, are specifically denied, and strict proof thereof is demanded at the time of trial. 10. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 10 of Plaintiffs' Complaint. The same, therefore, are specifically denied, and strict proof thereof is demanded at the time of trial. 11. Paragraph 11 of Plaintiffs' Complaint contains conclusions of law to which no responses are required. By way of further response, the document speaks for itself and can be reviewed by the Court in terms of the language contained therein; however, no Agreement was ever consummated by the parties to this lawsuit in as much as Plaintiffs knew that Defendant was unable to meet the terms contained therein at the time the document was signed and Defendant believes and thus avers that Plaintiffs knew the real property at issue was uninhabitable and had been for some time prior thereto. Therefore, consideration and/or adequate consideration was not exchanged between the parties to the alleged Agreement. Strict proof to the contrary is demanded at the time of trial. COUNT I - QUIET TITLE ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 12. Defendant incorporates herein by reference Paragraphs 1 through 11 of her Answer above as if set forth at length. 13. Paragraph 13 contains conclusions of law to which no responses are required. 14. Paragraph 14 contains conclusions of law to which no responses are required. 15. Paragraph 15 contains conclusions of law to which no responses are required. To the extent responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 16. Paragraph 16 contains conclusions of law to which no responses are required. 17. Paragraph 17 contains conclusions of law to which no responses are required. To the extent responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to enter judgment in her favor and dismiss Plaintiffs' Complaint with prejudice, with costs of suit to be paid by Plaintiffs. COUNT 11- DECLARATORY RELIEF ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 18. Defendant incorporates herein by reference Paragraphs 1 through 17 of her Answer above as if set forth at length. 19. Denied as stated. It is admitted that Defendant Sarah M. Shuller will not join in the conveyance of the property in which she holds and/or should hold a legal interest. It is specifically denied, in so far as the language "threatened" is used, that Defendant maliciously or otherwise harassed or threatened Plaintiffs with respect to these matters. Strict proof to the contrary is demanded at the time of trial. 20. Paragraph 20 of Plaintiffs' Complaint contains conclusions of law to which no responses are required. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to grant relief to her based on her Answer with New Matter and to dismiss Plaintiffs Complaint with prejudice, with costs of suit to be paid by Plaintiffs. COUNT'" - BREACH OF CONTRACT ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 21. Defendant incorporates herein by reference paragraphs 1 through 20 of her Answer above as if set forth at length. 22. Admitted in part and denied in part. It is admitted that Plaintiff Albert Shuller paid certain monies on Defendant's car loan at his own initiative and in his role as her financial advisor. After reasonable investigation, Plaintiff is without knowledge or information at present sufficient to form a belief as to the truth of the averment of the amount paid; therefore, the same is specifically denied, and strict proof thereof is demanded at the time of trial. It is further specifically denied that any agreement was reached by Defendant with Plantiffs as to repayment of such monies, and strict proof thereof is demanded at the time of trial. 23. Paragraph 23 contains conclusions of law to which no responses are required. To the extent that responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 24. Admitted in part and denied in part. It is admitted that certain payments were made by Defendant to Plaintiffs but no specific monthly loan amount or payment was reached between the parties, and strict proof otherwise is demanded at the time of trial. After reasonable investigation, Defendant is without knowledge or information at present sufficient to form a belief as to truth of the averment that $850.00 was paid by Defendant to Plaintiffs; the same therefore is specifically denied, and strict proof thereof is demanded at the time of trial. 25. Paragraph 24 contains conclusions of law to which no responses are required. To the extent that responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to enter judgment in her favor and against Plaintiffs and dismiss Plaintiff's Complaint with prejudice, with costs of suit to be paid by Plaintiffs. NEW MATTER 26. Paragraphs 1 through 25 above of Defendant's Answer to Plaintiffs' Complaint are incorporated herein by reference as if set forth at length. 27. The document attached to Plaintiffs' Complaint labeled Life Time Estate Agreement is merely an offer which was not unconditionally accepted by Defendant since Plaintiffs knew Defendant was unable to meet the terms set forth in such document. Therefore, a valid and enforceable agreement was not entered by the parties to this lawsuit upon which Plaintiffs may seek relief. 28. The document and any alleged agreement is not supported by consideration and/or adequate consideration and therefore is unenforceable against Defendant so as to justify the relief sought by Plaintiffs because Plaintiffs knew that the subject property was uninhabitable at the time the document was signed and had been for some time prior thereto. 29. The alleged Life Time Estate Agreement is unenforceable against Defendant so as to justify the relief sought by Plaintiffs because it was entered prior to the signing of the Deed related to which any valid and enforceable Agreement could have been made. 30. The alleged Life Time Estate Agreement is unenforceable against Oefendant so as to justify the relief sought by Plaintiffs because it was void ab initio since Plaintiffs did not hold title to the subject real estate at the time the document was signed and therefore could not have entered or offered to enter the alleged Agreement. 31. Defendant pleads the doctrine of impossibility of performance as a bar to the relief sought by Plaintiffs since the real property at issue was uninhabitable at the time the Life Time Estate Agreement document was signed, which Plaintiffs were aware of that time, thereby preventing Defendant from the outset from receiving the benefit of her alleged bargain. 32. The relief sought in Plaintiffs' Complaint should be denied in as much as Plaintiff(s) procured the Deed conveying Defendant's interest in the subject property to Plaintiffs by fraud since Plaintiff Albert Shuller misrepresented to Defendant, which she relied upon to her detriment, that transfer of title was being made so as to prevent Defendant's creditors at that time from obtaining her property by judgment and she would get the property back, when in reality, Plaintiff Albert Shuller knew, as Defendant's financial advisor, that the same was not true and/or was not the real reason for conveyance to Plaintiffs of Defendant's property which Plaintiff(s) wanted, which misrepresentation was material to the transaction. Therefore, a constructive trust should be established and Defendant's one-half interest in the subject property returned to her by Plaintiffs being required by Order of Court to execute a deed re-conveying such interest to Defendant. 33. At the time the Deed and Life Time Estate Agreement were signed, Plaintiff Albert Shuller stood in a fiduciary capacity for Defendant and in confidential relationship with her as her agent, servant, employee, and/or representative in financial matters, as demonstrated by document labeled "Employment Agreement" attached hereto as Exhibit "A," which fiduciary duty(ies) and confidential relationship Plaintiff Albert Shuller breached in coercing Oefendant, while she was under economic duress and while serving such role(s), to transfer to he and his wife Defendant's interest in the subject property and representing that a life estate would be reserved for Defendant in the deed, but failing to insure the same was reserved in the deed, and while knowing Defendant was, prior to its execution, unable to meet the terms and conditions of the alleged Life Time Estate Agreement. Accordingly, a constructive trust should be established in favor of Defendant related to the subject real estate; an Order entered with respect thereto; and Plaintiffs required to re-convey Defendant's interest in the property to her. 34. The relief sought by Plaintiffs should be denied; the deed into Plaintiffs rescinded; and title re-conveyed to Defendant in as much as the Deed was induced or procured by fraud as more particularly set forth in Paragraph 32 above, which is incorporated herein by reference as if setforth at length. 35. Plaintiffs have waived any claim to relief against Defendant in entering the alleged Life Time Estate Agreement knowing Defendant was unable to meet the terms included therein. 36. The relief sought by Plaintiffs under the alleged Life Time Estate Agreement should be denied since no mutual meeting of the minds took place as to the existence of a true and enforceable Agreement capable of being performed by Defendant at the time the same was allegedly entered. 37. Any damages or losses suffered by Plaintiffs were the result of their own acts or failure(s) to act or failure to mitigate damages, for which Defendant is not responsible. 38. Under the facts noted herein and further demonstrated in this case, Plaintiffs have failed to state a claim upon which relief may be granted. 39. No agreement existed between Plaintiffs and Defendant which was sufficiently definite in its terms related to a loan for Defendant's car so as to be enforceable. 40. Plaintiffs' claims are barred by the defense of justification in as much as Plaintiffs were aware from the outset that Defendant was unable to meet the terms and obligations set forth in the alleged Life Time Estate Agreement. 41. Plaintiffs' claim with respect to the alleged agreement regarding the car loan is barred by the defense of justification in as much as it was Plaintiff Albert Shuller's idea to payoff the car in order to assist Defendant with her financial struggles and to put more money in her pocket out of her earnings, rather than sending the same to another creditor. 42. Based on the foregoing facts set forth in this New Matter and conduct of Plaintiff Albert Shuller, Plaintiffs should be estopped from obtaining full title to the subject property and/or Defendant's share of the proceeds of the sale of the property in the event the Court awards the same. 43. Plaintiffs' claims are barred or should be barred by the doctrine of unclean hands in so far as the manner by which Plaintiff(s) have obtained title to the subject real estate was based upon fraud and/or misrepresentation. 44. The alleged Life Time Estate Agreement does not comport with the Written Obligations Act and is not binding upon Defendant so as to justify relief to Plaintiffs. 44. Alternatively, should this Honorable Court find the alleged Agreement enforceable, Defendant, upon sale of the subject property, should be entitled to one-half of the fair market value of the subject real estate less monies, if any, found to be owed by her to Plaintiffs. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to grant judgment in her favor and against Plaintiffs and to dismiss Plaintiffs' Complaint with prejudice, with costs of suit to be paid by Plaintiffs. COUNTERCLAIMS COUNT I DEFENDANT V. PLAINTIFF ALBERT SHULLER 45. Paragraphs 1 through 44 of Defendant's Answer with New Matter above are incorporated herein by reference as if set forth at length. 46. At all times material hereto, Plaintiff Albert Shuller was under an Employment Agreement to handle any and all of Defendant's financial affairs. (See Exhibit "A" attached hereto). 47. Plaintiff Albert Shuller breached his fiduciary duty(ies) to Defendant in his capacity as her agent, servant, employee, representative, and/or financial advisor by: a. Leading Defendant, while she was under economic duress, through misrepresentation to transfer the subject real estate to Plaintiffs with the understanding that the property would be returned to her, knowing Defendant was unable to meet the terms and conditions necessary to retain any life estate in the subject property and not intending to return her interest to her; b. Failing to insure that that a life estate or interest in the subject real estate in favor of Defendant was reserved in the Deed conveying the property into Plaintiffs; c. Advising Defendant, while acting in such capacity and under such duty(ies), to transfer her property into the name of he and his wife so as to commingle Defendant's assets with those of Plaintiffs; d. Advising Defendant to transfer the subject real property into the name of he and his wife with the intent and expectation that such property would remain in Plaintiffs' name and that Defendant would likely be unable to recover the same into her name. 48. As a direct and proximate result of the aforesaid breach(es), Defendant has been deprived of her interest in her real property, which is unique and incapable of being adequately redressed by money damages. WHEREFORE, Defendant Sarah M. Shuller respectfully request your Honorable Court to enter judgment in her favor and against Plaintiff finding (1) the aforesaid breach(es) by Plaintiff Albert Shuller; (2) determining that a constructive trust be established in favor of Defendant as to a one-half interest in the subject real estate; and (3) entering an Order requiring Plaintiffs to sign a Deed re-conveying such interest to Defendant, with costs of suit to be paid by Plaintiffs. COUNT" OEFENDANT V. PLAINTIFF ALBERT SHULLER 49. Paragraphs 1 through 48 of Defendant's Answer with New Matter and Counterclaims above are incorporated herein by reference as if set forth at length. 50.At all times material hereto, Plaintiff Albert Shuller was acting as Oefendant's financial adviser and stood in a confidential relationship with her in as much as she trusted him to assist her in dealing with her finances. 51. Plaintiff Albert Shuller breached such relationship by: a. Leading Defendant, while she was under economic duress, through misrepresentation to transfer the subject real estate to Plaintiffs with the understanding that the property would be returned to her, knowing Defendant was unable to meet the terms and conditions necessary to retain any life estate in the subject property and not intending to return her interest to her; b Failing to insure that that a life estate or interest in the subject real estate in favor of Defendant was reserved in the Deed conveying the property into Plaintiffs; c. Advising Defendant, while acting in such capacity and under such duty(ies), to transfer her property into the name of he and his wife so as to commingle Defendant's assets with those of Plaintiffs; d. Advising Defendant to transfer the subject real property into the name of he and his wife with the intent and expectation that such property would remain in Plaintiffs' name and that Defendant would likely be unable to recover the same into her name. 52. As a direct and proximate result of the aforesaid breach(es) by Plaintiff Albert Shuller of his confidential relationship with Defendant, Defendant has been deprived of her interest in the subject real property, which is unique and incapable of being adequately redressed in money damages. WHEREFORE, Defendant Sarah M. Shuller respectfully request your Honorable Court to enter judgment in her favor and against Plaintiff finding (1) the aforesaid breach(es) by Plaintiff Albert Shuller; (2) determining that a constructive trust be established in favor of Defendant as to a one-half interest in the subject real estate; and (3) entering an Order requiring Plaintiffs to sign a Deed re-conveying such interest to Defendant, with costs of suit to be paid by Plaintiffs. COUNT '" DEFENDANT V. PLAINTIFFS 53. Paragraphs 1 through 52 above are incorporated herein by reference as if set forth at length. 54. On or about October, 2004, Defendant made request for return by Plaintiffs of various items of personal property of Defendant located in the house at the real property at issue. 55. A copy of a list of such items prepared by Defendant and forwarded to Plaintiffs and/or their attorney is attached hereto as Exhibit "B" and incorporated herein by reference as if set forth at length, the value of which items Defendant believes to be in excess of $25,000.00. 56. Plaintiffs have failed and refused to return such items to Plaintiff, despite request, and/or have prevented her from having access to the house or place(s) where the same are located, which failure and refusal constitutes intentional conversion of Defendant's personal property without justification or defense and without proper claim of right to such property. 57. Such intentional and egregious conduct by Plaintiffs is outrageous under the circumstances, thereby warranting punitive damages. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court enter judgment in her favor and against Plaintiffs, plus punitive damages, cost of suit, and interest on the judgment at the statutory rate. A JURY TRIAL IS DEMANDED Respectfully Submitted, LLlSON BY VERIFICATION I, SARAH M. SHULLER, hereby verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa. Con. Stat. Ann. Section 4904 relating to unsworn falsification to authorities. ~~.h Sarah M. Shuller Dated: ~~t<-"'.r \"1 , 2005 EMPLOYMENT AGREEMENT BY AND BETWEEN ALBERT H. "BUCK" SHULLER AND SARAH MARIE SHULLER Date November 29,2001 As of this date I Sarah Moo Shuller do appoint my brother Albert H. "BUCK" Shuller to act on my behalf in any and all financial matters in which I am presently involved. He has my full support and approval to conduct financial inquirers and pay creditors as he may deem advisable. Signed ~~ ~ (seal) Sarah M. Shuller Witness JtUb~,f,~~ (seal) / Saranne E. Shuller Date II -J.,\.-01 Date //-.:l 9 -0/ ! .... STROUP & STROUP Attorneys at Law 102 W. Penn St.., Ste 2 Bedford, Pennsylvania 15522 Stanley G. Stroup (1903-1977) Gordon E. Stroup Telephone No. (814) 623-5178 Fax No. (814) 623-5179 October 13, 2004 David A. Baric, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 Re: Shuller Matter Dear Mr. Baric: In accordance with my secretary's telephone conversation with you on September 15,2004, enclosed you will find the list of personal property that Sarah Shuller desires to remove from the Newville real estate owned by Albert (Buck) and Saranne Shuller. Would you please let my office know if she can obtain these items and when? Thank you. Gordon Stroup GS/tw Enclosure CC: Sarah Shuller , REQUESTED LIST OF POSSESSIONS-lOO LEEDS ROAD,NEWVILLE, PA.: Antique Cherry Comer Cupboard Apartment Sized Baby Grand Piano, Piano Bench,Sheet Music Chestnut, "Mouse Hole", Hutch Style, Cupboard Walnut Dining Room Set and Mirror-Table, Six Chairs, Buffet,Small China Cupboard, Extra Table Boards. Pump Organ Small, Oak, Library Table Black, Lion Head, Ann Chair with Leather Seat Large, Wooden, Round, Pedestal, CoffeeTable Green Painted, Lady's DesklVanity and Chair Green Painted Rocker Green Painted High Chair Black, Pineapple Open Design Back, Dining Ann Chair Black, Straight Back Chair Modem, Blue,Wooden, Kitchen Stool Small ,Maple, Bedroom Ann Chair Maple Twin Bed-Head and Foot Board, Frame, Mattress, Bedding Large ,Wooden, Storage Cupboard (Basement) Walnut Kitchen Table(Basement) Two Steamer Trunks- One Large and One Small Green Painted, Low, Square Stool Three Old Easy Chairs Old Hickory Rocker Two Small Microwaves Brown ApartmentlDorm Sized Refrigerator Small TV VCR and Video Tapes Boom Box Style ,Radio/Cassette Tape Recorder/Player Combination Deer Head-Doe- Mounted Large, Grey, Iron ,Cooking Kettle and Stand Sears Gas Grill-Boxed Three Aluminium Lawn Chairs Two ,Cloth Covered, Large, Cheese Boxes Wall Tapestries-London Bridge, Oslo, Lady All Currier and Ives Prints (Lithographs) White and Yellow Floral Table Lamp-Electric Small Cat Lamp Green Painted Floor Lamp Brass Floor Lamp Twisted Metal Floor Lamp with Extended Ann for Chinese Lantern Shade Small Cranberry Ceiling Light- Boxed Modem, Small, "Gone With The Wind"Style, Electric, Table Lamp Tiffany Style, 01 eiling Light-Cream, Red, Amber-Dining Room (Original Fixature Still In e House To Return To This Area) _. - 1 Antique ,Large, Cranberry, Raised Floral Decoration, Ceiling Light (Bathroom)-(Original Fixature, Likewise, Available, As Only Recently Installed) Cranberry, Swirl, Chain Pull Style- Antique-Ceiling Light (Entrance Hall) Small, Modem, Glass, Tiffany Style, Fruit Design, Ceiling Light (First Floor Bedroom)- (Original Available For Return Installation) Medium Sized ,Stained Glass Window-Blue Basket and Fruit-Not Installed Carmel Glass and Metal Old Porch Ceiling Light- Saved From Porch When Removed. All Seasonal Decorations-Including Wreaths, Window Clings, Hanging Glass Decorations, Etc. All Artificial Plants and Arrangements Message School Slate Cat's Meow Collection, Wooden Santa Collection, School House Decorations Two Rag Dolls- Andy and Annie Large Indian Doll Small Glass Dresser Clock Wooden Chicken, Cow, and Reindeer Figures-Large ,Seated. Framed Indian Mesa Poster Old Faithful Poster Framed Baptismal Certificate- Blanche Davis Framed Certficate of Promotion PA State Police Framed Picture of TECH Basketball Team TECH Banner Small, Brown Toned, Sheep Picture-Framed Large, Framed, Brown Toned, Church Picture All Longaberger Baskets All Metal Blue Granite-Cooking and Serving Ware- Modern Modern Blue Willow Dishes Blue Drinking Glasses Character Drinking Glasses "S"Initial Drinking Glasses Fluted Champagne Glasses Small Cat Milk and Cream Pitchers Metal Napkin Ring Holders Blue Enamel Stainless Steel Eating Utensils/Place Settings Red,Green, and Blue Colanders Black Metal Cooking Pots and Pans Electric Coffee Pot Coffee Pot Thermos Electric Toaster Antique Toaster Copper Kitchen Wall Decorations Dessert First Cat Picture- Framed Wooden Cat Calender Decorative Trivets and Country Decorations-Including Those In The Bathroom Home Interior Figurines and Decorations - - 2 Window Bottle Collection Glass Coke Bottle Collection (Basement) Chinese Checker Boards- Glass, and Antique Wood and Metal Pink and White Rose Pitcher and Bowl Set Red Clay Pottery - One Wide Mouth With Handle and One Bird House One Wooden Bird House Plastic Bird Bath and Lawn Decorations Wooden Decorative Cat Carosel Hornet Nest Small Wall Shelf Small Pottery Jug- Small Mouth Microwave Dishes Books-Religious, Mystery, Modem Duffy School Series, National Geographies, Misc. Hertitage Woven Tablecloths-Blue and Rose Sports Equipment-Badminton, Volley Ball,Frisbees, Croquet Set, Fishing Pole, Wooden Archery Youth Bow In Wooden Case, Kites Painted Flat Irons Painted Iron Pots Oak Veneer, Antique, Victrola-Hand Crank-Tall ,With Record Storage Cabinet, Combination Piece of Furniture 78 Records and Jackets Shoe Last Set-Candle Holders Two Tambourines Cowboy Hat Metal Animal Candle Lights Painted and Unpainted Horseshoes and Blacksmith Puzzle Wooden Chicken Paddle Game Board Games Personal Clothing, Towels, Linens, Rugs Goose Cookie Jar Slate Wall Decorations Black End table White Danish Modem Triangular Table Ironstone Dishes and Ware Cassette Tapes Modem, Kerosene, Wall Mount With Reflector, Lamp Modem Blue Goose Kerosene Lamp Old Substation Keys Christmas Trees, Artifical and Decorations All Wooden Tree, Cat, School House, Country, and Goose Decorations China Skeleton ,Seated, With Hinged Jaw Electric Fan Small Electric Ice Cream Freezer Igloo Large Cooler and Jugs Wooden, White Cat, Vertical, Paper Towel Holder Green, Aladdin Lamp Style, Tea Pot - - - .- _. 3 White, With Blue Bunny Trim, Tea Pot Tea Cozy and Tea Items Kitchen Utensils and Decorations Iron Griddle and Waffle Iron Gnome Couple Figures China Half Girl Figurine Artificial Fruit Aquarium With Glass Top Gardening Tools; Hammer, Screw Drivers, Etc. Old, Empty, Semi Circular Shaped, Wooden, Radio Cabinet-Floor Model Papers and Items From My Car-Stored In Downstairs Empty Bedroom Speckled Brown Flower Vase-Ceramic Cosmetic and Medical Supplies Trays-Metal and Plastic White Metal ,With Red Trim, Kitchen Work & Storage Cabinet Black Painted Platform Rocker Plastic Comer Cat Litter Pan Cannister Sets- Red Tupperware and Blue Metal Granite Ware Watermelon Basket and Tray Wooden Cutting Boards Old Agricultural Advertisement Thermometer Electric and Candle Powered Scent Pots Wooden Christmas Carosel School Days Framed Picture Small Grandma Moses Picture Wooden Amish Couple Figures Framed Picture of George Washington Boxed Casserole Dishes Pull Start, Gas Powered, Push Lawnmower - ._. Anything Not Listed, That I Deem To Be Mine, Since I Have Had To Prepare This List From Memory. Respectfully submitted, Sarah M. Shuller - ._-~ October 02, 2004 ADDITIONAL ITEMS STORED AT 120 LEEDS ROAD, NEWVILLE, PA: Small, Mini, Brown Vinyl Covered Refrigerator Civil War Video Series (Continued) 4 Video Tapes (Borrowed From Me) Guidepost Christian Book Series Bird House Decoration Large Black Amethyst Vase Wooden Side Chair With Open Heart Back (Bobby's Sale)- Needed Tightening Violin- Stradivarius Label (In Safe) The Shuller Family Bible I Would Greatly Appreciate It, If These Items Could Be Obtained At The Same Time. - - .- - - ..- - "-- 5 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 19th day of September, 2005, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 By Bradley . on, E u e Attorney f r Defendant 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 ...' ~ (') ~ \i;;: ,;--." ;::f' .-\ L/) :f. en C;l -D ~'" - ~> :,. 'f'.:';"'t .~.~ f'" d ALBERT H. SHULLER and SARANNE E. SHULLER, husband and wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. NO. 2005- 3361 CIVIL TERM SARAH M. SHULLER, Defendant. CIVIL ACTION-LAW PLAINTIFFS' PRELIMINARY OBJECTIONS TO COUNTERCLAIM OF DEFENDANT NOW, come Plaintiffs, Albert H. Shuller and Saranne E. Shuller, by and through their attorneys, O'BRIEN, BARIC & SCHERER, and file the within Preliminary Objections to Counterclaim of Defendant and, in support thereof, set forth the following: I. Insufficient Specificity I. Pursuant to Pa R.C.P. 1028(a)(4) the counterclaims filed by Defendant are not sufficiently specific. 2. Pa R.C.P. IOI9(a) requires that all material facts for a cause of action must be asserted in a pleading. Further, a complaint or counterclaim must apprise the other party of the claim being asserted and must summarize the facts essential to support the claim. 3. Pa R. C.P. IO I 9(b) requires that averments of fraud must be averred with particularity. 4. Defendant has made averments that there existed "fiduciary duties", that "misrepresentations" were made, that "advice" was given by Plaintiffs to Defendant, that Plaintiff was the "financial advisor" of Defendant, that a "confidential relationship" existed yet nowhere in her counterclaims does Defendant set forth material facts upon which these conclusory allegations rest. ii 5. Defendants' counterclaims fail to apprise Plaintiffs of the claims being asserted by Defendant against them. WHEREFORE, Plaintiffs request that this Preliminary Objection be sustained and Defendant be directed to file an amended counterclaim which contains sufficient specificity. II. Failure to Conform to Law or Rule of Court 6. Pa R.C.P. IOI9(a) requires that all material facts for a cause of action must be asserted in a pleading. Further, a complaint or counterclaim must apprise the other party of the claim being asserted and must summarize the facts essential to support the claim. 7. Pa R.C.P. IOI9(b) requires that averments offraud must be averred with particularity. 8. Defendant has made averments that there existed "fiduciary duties", that "misrepresentations" were made, that "advice" was given by Plaintiffs to Defendant, that Plaintiff was the "financial advisor" of Defendant, that a "confidential relationship" existed yet nowhere in her counterclaims does Defendant set forth material facts upon which these conclusory allegations rest. WHEREFORE, Plaintiffs request that this Preliminary Objection be sustained and Defendant be directed to file an amended counterclaim which shall conform to law and rules of Court. III. Legal Insufficiency 9. Defendant has failed to aver facts in her counterclaim which would support the imposition of punitive damages. WHEREFORE, Plaintiff requests that this Preliminary Objection be sustained and the prayer of Defendant for punitive damages be dismissed with prejudice. I' II ,I 'I il ,. 'I II II It i Respectfully submitted, ? EN'BARIC&:?& David A Baric, Esquire LD. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiffs dab.dir/realestate/shuller/prelimiuary.obj " !I- CERTIFICATE OF SERVICE I hereby certify that on September t- ?, 2005, I, David A. Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of Plaintiffs' Preliminary Objections To Counterclaim Of Defendant, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Bradley D. Allison, Esquire Law Office Of Bradley D. Allison 102 West Penn Street, Suite 1 "oMmu, P'M'~ /? David A. Baric, Esquire o c.;; 1"'''''' "..=., :~~ en 1"'''1 -0 r0 O'J C} -n --l ..,... f11:D -cs:;. ~/Jr.:? ~~~} ~.? -"~:-.0 2:j~: ;::-,.~ rI~" .0 ....:: ::-::"~ a o (T. ALBERT H. SHULLER and: IN THE COURT OF COMMON PLEAS OF SARANNE E. SHULLER, : CUMBERLAND COUNTY, PENNSYLVANIA Husband and wife, Plaintiffs : CIVIL ACTION - LAW : No.: 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: PLAINTIFFS C/O DAVID BARIC, ESQUIRE YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER AND AMENDED COUNTERCLAIMS WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. L1S0N . Alliso , Pa. I. . NO.8 72 Attorney for Defendant 102 W. Penn Street, Suite 1 Bedford, PA 15522 (814) 623-7566 ])Je: {f)/~,1f)5 ALBERT H. SHULLER and SARANNE E. SHULLER, Husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW No.: 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER AND AMENDED COUNTERCLAIMS AND NOW, comes the Defendant, Sarah M. Shuller, by and through her attorney, Bradley D. Allison, Esquire, and files the within Answer with New Matter and Amended Counterclaim(s), respectfully averring in support thereof as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted with clarification. It is admitted that Plaintiffs acquired title from Defendant to the property referenced in Paragraph 4 of Plaintiffs' Complaint. However, to the extent that such acquisition was without further obligation by Plaintiff(s) or proper under the circumstances more particularly referred to in this Answer and New Matter below, the same is specifically denied, and strict proof thereof is demanded at the time of trial. 5. Admitted in part and denied in part. It is admitted that a copy of the Deed conveying the property is attached to Plaintiffs' Complaint. It is specifically denied that such Deed was properly done in the interests of Defendant, and strict proof thereof is demanded at the time of trial. 6. Admitted in part and denied in part. It is admitted that Defendant signed the document labeled Life Time Estate Agreement. It is further admitted that the same was signed prior to execution of the Deed. However, Plaintiffs were aware that due to financial problems experienced by Defendant that Defendant was, at the time of the signing of the Agreement, unable to meet the terms of the alleged Life Time Estate Agreement. Moreover, Plaintiffs were specifically aware of such financial difficulties in as much as Plaintiff Albert Shuller was acting as the agent, servant, employee, and/or representative of Defendant at such time to purportly help her resolve such financial difficulties. It is specifically denied therefore that an enforceable Agreement was reached between the parties, and strict proof thereof is demanded at the time of trial. 7. Paragraph 7 of Plaintiffs' Complaint contains conclusions of law to which no responses are required. By way of further response, Plaintiffs were aware at the time the Agreement was signed that Defendant was unable in meet the terms and provisions of the alleged Agreement. Strict proof to the contrary is demanded at the time of trial. 8. The averments of Paragraph 8 of Plaintiffs' Complaint are specifically denied. To the contrary, Plaintiffs knew at the signing of the Agreement, not after the execution of the Life Time Estate Agreement and recording of the deed, that Oefendant would not be able to pay for the obligations as set for in the Life Estate Agreement. Strict proof to the contrary is demanded at the time of trial. 9. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 9 of Plaintiffs' Complaint. The same, therefore, are specifically denied, and strict proof thereof is demanded at the time of trial. 10. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraph 10 of Plaintiffs' Complaint. The same, therefore, are specifically denied, and strict proof thereof is demanded at the time of trial. 11. Paragraph 11 of Plaintiffs' Complaint contains conclusions of law to which no responses are required. By way of further response, the document speaks for itself and can be reviewed by the Court in terms of the language contained therein; however, no Agreement was ever consummated by the parties to this lawsuit in as much as Plaintiffs knew that Defendant was unable to meet the terms contained therein at the time the document was signed and Defendant believes and thus avers that Plaintiffs knew the real property at issue was uninhabitable and had been for some time prior thereto. Therefore, consideration and/or adequate consideration was not exchanged between the parties to the alleged Agreement. Strict proof to the contrary is demanded at the time of trial. COUNT I - QUIET TITLE ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 12. Defendant incorporates herein by reference Paragraphs 1 through 11 of her Answer above as if set forth at length. 13. Paragraph 13 contains conclusions of law to which no responses are required. 14. Paragraph 14 contains conclusions of law to which no responses are required. 15. Paragraph 15 contains conclusions of law to which no responses are required. To the extent responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 16. Paragraph 16 contains conclusions of law to which no responses are required. 17. Paragraph 17 contains conclusions of law to which no responses are required. To the extent responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to enter judgment in her favor and dismiss Plaintiffs' Complaint with prejudice, with costs of suit to be paid by Plaintiffs. COUNT" - DECLARATORY RELIEF ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 18. Defendant incorporates herein by reference Paragraphs 1 through 17 of her Answer above as if set forth at length. 19. Denied as stated. It is admitted that Defendant Sarah M. Shuller will not join in the conveyance of the property in which she holds and/or should hold a legal interest. It is specifically denied, in so far as the language "threatened" is used, that Defendant maliciously or otherwise harassed or threatened Plaintiffs with respect to these matters. Strict proof to the contrary is demanded at the time of trial. 20. Paragraph 20 of Plaintiffs' Complaint contains conclusions of law to which no responses are required. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to grant relief to her based on her Answer with New Matter and to dismiss Plaintiff's Complaint with prejudice, with costs of suit to be paid by Plaintiffs. COUNT'" - BREACH OF CONTRACT ALBERT H. SHULLER and SARANNE E. SHULLER v. SARAH M. SHULLER 21. Defendant incorporates herein by reference paragraphs 1 through 20 of her Answer above as if set forth at length. 22. Admitted in part and denied in part. It is admitted that Plaintiff Albert Shuller paid certain monies on Defendant's car loan at his own initiative and in his role as her financial advisor. After reasonable investigation, Plaintiff is without knowledge or information at present sufficient to form a belief as to the truth of the averment of the amount paid; therefore, the same is specifically denied, and strict proof thereof is demanded at the time of trial. It is further specifically denied that any agreement was reached by Defendant with Plantiffs as to repayment of such monies, and strict proof thereof is demanded at the time of trial. 23. Paragraph 23 contains conclusions of law to which no responses are required. To the extent that responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 24. Admitted in part and denied in part. It is admitted that certain payments were made by Defendant to Plaintiffs but no specific monthly loan amount or payment was reached between the parties, and strict proof otherwise is demanded at the time of trial. After reasonable investigation, Defendant is without knowledge or information at present sufficient to form a belief as to truth of the averment that $850.00 was paid by Defendant to Plaintiffs; the same therefore is specifically denied, and strict proof thereof is demanded at the time of trial. 25. Paragraph 24 contains conclusions of law to which no responses are required. To the extent that responses are deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to enter judgment in her favor and against Plaintiffs and dismiss Plaintiff's Complaint with prejudice, with costs of suit to be paid by Plaintiffs. NEW MATTER 26. Paragraphs 1 through 25 above of Defendant's Answer to Plaintiffs' Complaint are incorporated herein by reference as if set forth at length. 27. The document attached to Plaintiffs' Complaint labeled Life Time Estate Agreement is merely an offer which was not unconditionally accepted by Defendant since Plaintiffs knew Defendant was unable to meet the terms set forth in such document. Therefore, a valid and enforceable agreement was not entered by the parties to this lawsuit upon which Plaintiffs may seek relief. 28. The document and any alleged agreement is not supported by consideration and/or adequate consideration and therefore is unenforceable against Defendant so as to justify the relief sought by Plaintiffs because Plaintiffs knew that the subject property was uninhabitable at the time the document was signed and had been for some time prior thereto. 29. The alleged Life Time Estate Agreement is unenforceable against Defendant so as to justify the relief sought by Plaintiffs because it was entered prior to the signing of the Deed related to which any valid and enforceable Agreement could have been made. 30. The alleged Life Time Estate Agreement is unenforceable against Defendant so as to justify the relief sought by Plaintiffs because it was void ab initio since Plaintiffs did not hold title to the subject real estate at the time the document was signed and therefore could not have entered or offered to enter the alleged Agreement. 31. Defendant pleads the doctrine of impossibility of performance as a bar to the relief sought by Plaintiffs since the real property at issue was uninhabitable at the time the Life Time Estate Agreement document was signed, which Plaintiffs were aware of that time, thereby preventing Defendant from the outset from receiving the benefit of her alleged bargain. 32. The relief sought in Plaintiffs' Complaint should be denied in as much as Plaintiff(s) procured the Deed conveying Defendant's interest in the subject property to Plaintiffs by fraud since Plaintiff Albert Shuller misrepresented to Defendant, which she relied upon to her detriment, that transfer of title was being made so as to prevent Defendant's creditors at that time from obtaining her property by judgment and she would get the property back, when in reality, Plaintiff Albert Shuller knew, as Defendant's financial advisor, that the same was not true and/or was not the real reason for conveyance to Plaintiffs of Defendant's property which Plaintiff(s) wanted, which misrepresentation was material to the transaction. Therefore, a constructive trust should be established and Defendant's one-half interest in the subject property returned to her by Plaintiffs being required by Order of Court to execute a deed re-conveying such interest to Defendant. 33. At the time the Deed and Life Time Estate Agreement were signed, Plaintiff Albert Shuller stood in a fiduciary capacity for Defendant and in confidential relationship with her as her agent, servant, employee, and/or representative in financial matters, as demonstrated by document labeled "Employment Agreement" attached hereto as Exhibit "A," which fiduciary duty(ies) and confidential relationship Plaintiff Albert Shuller breached in coercing Defendant, while she was under economic duress and while serving such role(s), to transfer to he and his wife Defendant's interest in the subject property and representing that a life estate would be reserved for Defendant in the deed, but failing to insure the same was reserved in the deed, and while knowing Defendant was, prior to its execution, unable to meet the terms and conditions of the alleged Life Time Estate Agreement. Accordingly, a constructive trust should be established in favor of Defendant related to the subject real estate; an Order entered with respect thereto; and Plaintiffs required to re-convey Defendant's interest in the property to her. 34. The relief sought by Plaintiffs should be denied; the deed into Plaintiffs rescinded; and title re-conveyed to Defendant in as much as the Deed was induced or procured by fraud as more particularly set forth in Paragraph 32 above, which is incorporated herein by reference as if set forth at length. 35. Plaintiffs have waived any claim to relief against Defendant in entering the alleged Life Time Estate Agreement knowing Defendant was unable to meet the terms included therein. 36. The relief sought by Plaintiffs under the alleged Life Time Estate Agreement should be denied since no mutual meeting of the minds took place as to the existence of a true and enforceable Agreement capable of being performed by Defendant at the time the same was allegedly entered. 37. Any damages or losses suffered by Plaintiffs were the result of their own acts or failure(s) to act or failure to mitigate damages, for which Defendant is not responsible. 38. Under the facts noted herein and further demonstrated in this case, Plaintiffs have failed to state a claim upon which relief may be granted. 39. No agreement existed between Plaintiffs and Defendant which was sufficiently definite in its terms related to a loan for Defendant's car so as to be enforceable. 40. Plaintiffs' claims are barred by the defense of justification in as much as Plaintiffs were aware from the outset that Defendant was unable to meet the terms and obligations set forth in the alleged Life Time Estate Agreement. 41. Plaintiffs' claim with respect to the alleged agreement regarding the car loan is barred by the defense of justification in as much as it was Plaintiff Albert Shuller's idea to payoff the car in order to assist Defendant with her financial struggles and to put more money in her pocket out of her earnings, rather than sending the same to another creditor. 42. Based on the foregoing facts set forth in this New Matter and conduct of Plaintiff Albert Shuller, Plaintiffs should be estopped from obtaining full title to the subject property and/or Defendant's share of the proceeds of the sale of the property in the event the Court awards the same. 43. Plaintiffs' claims are barred or should be barred by the doctrine of unclean hands in so far as the manner by which Plaintiff(s) have obtained title to the subject real estate was based upon fraud and/or misrepresentation. 44. The alleged Life Time Estate Agreement does not comport with the Written Obligations Act and is not binding upon Defendant so as to justify relief to Plaintiffs. 44. Alternatively, should this Honorable Court find the alleged Agreement enforceable, Defendant, upon sale of the subject property, should be entitled to one-half of the fair market value of the subject real estate less monies, if any, found to be owed by her to Plaintiffs. WHEREFORE, Oefendant Sarah M. Shuller respectfully requests your Honorable Court to grant judgment in her favor and against Plaintiffs and to dismiss Plaintiffs' Complaint with prejudice, with costs of suit to be paid by Plaintiffs. COUNTERCLAIMS COUNT I DEFENDANT V. PLAINTIFF ALBERT SHULLER 45. Paragraphs 1 through 44 of Defendant's Answer with New Matter above are incorporated herein by reference as if set forth at length. 46. At all times material hereto, Plaintiff Albert Shuller was under an Employment Agreement to handle any and all of Defendant's financial affairs. (See Exhibit "A" attached hereto). 47. At all times material hereto, Defendant, being unable to fully handle her financial obligations and problems, placed complete faith and trust in Plaintiff Albert Shuller, at his insistence, to handle her financial affairs so as to help her out of difficulties with creditors and obligations with respect thereto. 48. Plaintiff Albert Shuller breached his fiduciary duty(ies) to Defendant in his capacity as her agent, servant, employee, representative, and financial advisor by: a. Leading Defendant, while she was under economic duress, through misrepresentation to transfer the subject real estate to Plaintiffs with the understanding that the property would be returned to her, knowing Defendant was unable to meet the terms and conditions necessary to retain any life estate in the subject property and not intending to return her interest to her; b. Failing to insure that a life estate or interest in the subject real estate in favor of Defendant was reserved in the Deed conveying the property into Plaintiffs; c. Advising Defendant, while acting in such capacity and under such duty(ies), to transfer her property into the name of he and his wife so as to commingle Defendant's assets with those of Plaintiffs rather than keeping Defendant's assets, in her best interests, separate from his own; d. Fraudulently advising Defendant to transfer the subject real property into the name of he and his wife while truly intending and expecting that such property would remain in Plaintiffs' name, contrary to his representations to Defendant that her interest in the subject property would be returned to her, and while knowing that Defendant would likely be unable to recover the same into her name. 49. As a direct and proximate result of the aforesaid breach(es), Defendant has been wrongfully deprived of her interest in her real property, which is unique and incapable of being adequately redressed by money damages. WHEREFORE, Defendant Sarah M. Shuller respectfully request your Honorable Court to enter judgment in her favor and against Plaintiff finding (1) the aforesaid breach(es) by Plaintiff Albert Shuller; (2) determining that a constructive trust be established in favor of Defendant as to a one-half interest in the subject real estate; and (3) entering an Order requiring Plaintiffs to sign a Deed re-conveying such interest to Defendant, with costs of suit to be paid by Plaintiffs. COUNT II DEFENDANT V. PLAINTIFF ALBERT SHULLER 50. Paragraphs 1 through 49 of Defendant's Answer with New Matter and Counterclaims above are incorporated herein by reference as if set forth at length. 51.At all times material hereto, Plaintiff Albert Shuller was acting as Defendant's financial adviser and stood in a confidential relationship with her in as much as she placed complete trust in him to assist her in dealing with her finances and to counsel her correctly in attempting to resolve her problems with creditors. 52. Plaintiff Albert Shuller breached such relationship by: a. Leading Defendant, while she was under economic duress, through misrepresentation to transfer the subject real estate to Plaintiffs with the understanding that the property would be returned to her, knowing Defendant was unable to meet the terms and conditions necessary to retain any life estate in the subject property and while not intending, upon making such representation, to return her interest in such property to her once conveyed into Plaintiffs; b Failing to insure through his own attorney that a life estate or interest in the subject real estate in favor of Defendant was reserved in the Deed conveying the property into Plaintiffs; c. Fraudulently advising Defendant, while acting in such capacity and under such duty(ies), to transfer her property into the name of he and his wife so as to commingle Defendant's asset with those of Plaintiffs rather than keep such asset; in Defendant's best interests, separate from his own d. Fraudulently advising Defendant to transfer the subject real property into the name of he and his wife with his true intent and expectation being that such property would remain in Plaintiffs' name and that Defendant would likely be unable to recover the same into her name. 53. As a direct and proximate result of the aforesaid breach(es) by Plaintiff Albert Shuller of his confidential relationship with Defendant, Defendant has been deprived of her interest in the subject real property, which is unique and incapable of being adequately redressed in money damages. WHEREFORE, Defendant Sarah M. Shuller respectfully request your Honorable Court to enter judgment in her favor and against Plaintiff finding (1) the aforesaid breach(es) by Plaintiff Albert Shuller; (2) determining that a constructive trust be established in favor of Defendant as to a one-half interest in the subject real estate; and (3) entering an Order requiring Plaintiffs to sign a Deed re-conveying such interest to Defendant, with costs of suit to be paid by Plaintiffs. COUNT III DEFENDANT V. PLAINTIFFS 54. Paragraphs 1 through 53 above are incorporated herein by reference as if set forth at length. 55. On or about October, 2004, Defendant made request for return by Plaintiffs of various items of personal property of Defendant located in the house at the real' property at issue. 56.A copy of a list of such items prepared by Defendant and forwarded to Plaintiffs and/or their attorney is attached hereto as Exhibit "8" and incorporated herein by reference as if set forth at length, the value of which items Oefendant believes to be in excess of $25,000.00. 57. Plaintiffs have refused to return such items to Plaintiff, despite request, and/or have prevented her from having access to the house or place(s) where the same are located, which failure and refusal constitutes willful and intentional conversion of Defendant's personal property without justification or defense and without proper claim of right to such property. 58. Such willful, intentional and egregious conduct by Plaintiffs, while knowing such property belongs to Defendant and while knowing they have no valid or legal claim to the same, is outrageous in nature, thereby warranting punitive damages. WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court enter judgment in her favor and against Plaintiffs in an amount in excess of $25,000.00, plus punitive damages, cost of suit, and interest on the judgment at the statutory rate. A JURY TRIAL IS DEMANDED Respectfully Submitted, B D. ALLISON VERIFICATION I, Sarah M. Shuller, hereby verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa. Con. Stat. Ann. Section 4904 relating to unsworn falsification to authorities. By ~~~, Sarah M. Shuller Oated: \ ~ -).\. _ ~<; EXHIBIT "A" EMPLOYMENT AGREEMENT BY AND BETWEEN ALBERT H. "BUCK" SHULLER AND SARAH MARIE SHULLER Date November 29,2001 As of this date I Sarah Moo ShuIler do appoint my brother Albert H. "BUCK" ShuIler to act on my behalf in any and all financial matters in which I am presently involved. He has my full support and approval to conduct financial inquirers and pay creditors as he may deem advisable. Signed ~~.~ Sarah M. ShuIler (seal) Date II -J.'1-0\ Witness J<UD~ ~,~h4/..tl..<- / Saranne E. Shuller (seal) Date //- ~ 9 -~I EXHIBIT "B" ! l:.. STROUP & STROUP Attorneys at Law 102 W. Penn St.., Ste 2 Bedford, Pennsylvania 15522 Stanley G. Stroup (1903-1977) Gordon E. Stroup Telephone No. (814) 623-5178 Fax No. (814) 623-5179 October 13,2004 David A. Baric, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 Re: Shuller Matter Dear Mr. Baric: In accordance with my secretary's telephone conversation with you on September 15,2004, enclosed you will find the list of personal property that Sarah Shuller desires to remove from the Newville real estate owned by Albert (Buck) and Saranne Shuller. Would you please let my office know if she can obtain these items and when? Thank you. Gordon Stroup GS/tw Enclosure CC: Sarah ShuIler " , REQUESTED LIST OF POSSESSIONS-lOO LEEDS ROAD,NEWVILLE, PA.: Antique Cherry Comer Cupboard Apartment Sized Baby Grand Piano, Piano Bench,Sheet Music Chestnut, "Mouse Hole", Hutch Style, Cupboard Walnut Dining Room Set and Mirror-Table, Six Chairs, Buffet,Small China Cupboard, Extra Table Boards. Pwnp Organ Small, Oak, Library Table Black, Lion Head, Ann Chair with Leather Seat Large, Wooden, Round, Pedestal, CoffeeTable Green Painted, Lady's DesklVanity and Chair Green Painted Rocker Green Painted High Chair Black, Pineapple Open Design Back, Dining Ann Chair Black, Straight Back Chair Modem, Blue,Wooden, Kitchen Stool Small ,Maple, Bedroom Ann Chair Maple Twin Bed-Head and Foot Board, Frame, Mattress, Bedding Large ,Wooden, Storage Cupboard (Basement) Walnut Kitchen Table(Basement) Two Steamer Trunks- One Large and One Small Green Painted, Low, Square Stool Three Old Easy Chairs Old Hickory Rocker Two Small Microwaves Brown Apartment/Dorm Sized Refrigerator Small TV VCR and Video Tapes Boom Box Style ,Radio/Cassette Tape RecorderlPlayer Combination Deer Head-Doe- Mounted Large, Grey, Iron ,Cooking Kettle and Stand Sears Gas Grill-Boxed Three Aluminium Lawn Chairs Two ,Cloth Covered, Large, Cheese Boxes Wall Tapestries"London Bridge, Oslo, Lady All Currier and rves Prints (Lithographs) White and Yellow Floral Table Lamp-Electric Small Cat Lamp Green Painted Floor Lamp Brass Floor Lamp Twisted Metal Floor Lamp with Extended Arm for Chinese Lantern Shade Small Cranberry Ceiling Light- Boxed ~odem, Small, "Gone With The Wind"Style, Electric, Table Lamp TIffany ~tyle, 01 eiling Light-Cream, Red, Amber-Dining Room (Original Fixature Still In e House To Return To This Area) - - - - 1 Antique ,Large, Cranberry, Raised Floral Decoration, Ceiling Light (Bathroom)-(Original Fixature, Likewise, Available, As Only Recently InstaJled) Cranberry, Swirl, Chain Pull Style- Antique-Ceiling Light (Entrance Hall) Small, Modem, Glass, Tiffany Style, Fruit Design, Ceiling Light (First Floor Bedroom)- (Original Available For Return Installation) Medium Sized ,Stained Glass Window-Blue Basket and Fruit-Not Installed Cannel Glass and Metal Old Porch Ceiling Light- Saved From Porch When Removed. All Seasonal Decorations-Including Wreaths, Window Clings, Hanging Glass Decorations, Etc. All Artificial Plants and Arrangements Message School Slate Cat's Meow Collection, Wooden Santa Collection, School House Decorations Two Rag Dolls- Andy and Annie Large Indian Doll Small Glass Dresser Clock Wooden Chicken, Cow, and Reindeer Figures-Large ,Seated. Framed Indian Mesa Poster Old Faithful Poster Framed Baptismal Certificate- Blanche Davis Framed Certficate of Promotion PA State Police Framed Picture of TECH Basketba\1 Team TECH Banner Small, Brown Toned, Sheep Picture-Framed Large, Framed, Brown Toned, Church Picture All Longaberger Baskets All Metal Blue Granite-Cooking and Serving Ware- Modem Modem Blue Willow Dishes Blue Drinking Glasses Character Drinking Glasses "S"Initial Drinking Glasses Fluted Champagne Glasses Sma\1 Cat Milk and Cream Pitchers Metal Napkin Ring Holders Blue Enamel Stainless Steel Eating Utensils/Place Settings Red,Green, and Blue Colanders Black Metal Cooking Pots and Pans Electric Coffee Pot Coffee Pot Thermos Electric Toaster Antique Toaster Copper Kitchen Wall Decorations Dessert First Cat Picture- Framed Wooden Cat Calender Decorative Trivets and Country Decorations-Including Those In The Bathroom Home Interior Figurines and Decorations - -- - - ,........... .- 2 Window Bottle Collection Glass Coke Bottle Collection (Basement) Chinese Checker Boards- Glass, and Antique Wood and Metal Pink and White Rose Pitcher and Bowl Set Red Clay Pottery - One Wide Mouth With Handle and One Bird House One Wooden Bird House Plastic Bird Bath and Lawn Decorations Wooden Decorative Cat Carosel Hornet Nest Small Wall Shelf Small Pottery Jug- Small Mouth Microwave Dishes Books-Religious, Mystery, Modern Duffy School Series, National Geographies, Misc. Hertitage Woven Tablecloths-Blue and Rose Sports Equipment-Badminton, Volley Ball,Frisbees, Croquet Set, Fishing Pole, Wooden Archery Youth Bow In Wooden Case, Kites Painted Flat Irons Painted Iron Pots Oak Veneer, Antique, Victrola-Hand Crank-Tall ,With Record Storage Cabinet, Combination Piece of Furniture 78 Records and Jackets Shoe Last Set-Candle Holders Two Tambourines Cowboy Hat Metal Animal Candle Lights Painted and Unpainted Horseshoes and Blacksmith Puzzle Wooden Chicken Paddle Game Board Games Personal Clothing, Towels, Linens, Rugs Goose Cookie Jar Slate Wall Decorations Black End table White Danish Modern Triangular Table Ironstone Dishes and Ware Cassette Tapes Modern, Kerosene, Wall Mount With Reflector, Lamp Modern Blue Goose Kerosene Lamp Old Substation Keys Christmas Trees, Artifical and Decorations All Wooden Tree, Cat, School House, Country, and Goose Decorations China Skeleton ,Seated, With Hinged Jaw Electric Fan Small Electric Ice Cream Freezer Igloo Large Cooler and Jugs Wooden, White Cat, Vertical, Paper Towel Holder Green, Aladdin Lamp Style, Tea Pot ..... .- -- - 3 .- - White, With Blue Bunny Trim, Tea Pot Tea Cozy and Tea Items Kitchen Utensils and Decorations Iron Griddle and Waffle Iron Gnome Couple Figures China Half Girl Figurine Artificial Fruit Aquarium With Glass Top Gardening Tools; Hammer, Screw Drivers, Etc. Old, Empty, Semi Circular Shaped, Wooden, Radio Cabinet-Floor Model Papers and Items From My Car-Stored In Downstairs Empty Bedroom Speckled Brown Flower Vase-Ceramic Cosmetic and Medical Supplies Trays-Metal and Plastic White Metal ,With Red Trim, Kitchen Work & Storage Cabinet Black Painted Platform Rocker Plastic Comer Cat Litter Pan Cannister Sets- Red Tupperware and Blue Metal Granite Ware Watermelon Basket and Tray Wooden Cutting Boards Old Agricultural Advertisement Thermometer Electric and Candle Powered Scent Pots Wooden Christmas Carosel School Days Framed Picture Small Grandma Moses Picture Wooden Amish Couple Figures Framed Picture of George Washington Boxed Casserole Dishes Pull Start,Gas Powered, Push Lawnmower ..... .- Anything Not Listed, That I Deem To Be Mine, Since I Have Had To Prepare This List From Memory. Respectfully submitted, .- - Sarah M. Shuller - October 02, 2004 ADDITIONAL ITEMS STORED AT 120 LEEDS ROAD NEWVILLE PA- , ,. Small, Mini, Brown Vinyl Covered Refrigerator Civil War Video Series (Continued) 4 Video Tapes (Borrowed From Me) Guidepost Christian Book Series Bird House Decoration Large Black Amethyst Vase Wooden Side Chair With Open Heart Back (Bobby's Sale)- Needed Tightening Violin- Stradivarius Label (In Safe) The Shuller Family Bible - I Would Greatly Appreciate It, If These Items Could Be Obtained At The Same Time. - ....... - .- '............. - 5 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 19th day of September, 2005, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 By Bradley . on, E u e Attorney f r Defendant 102 W. Penn St., Ste. 1 Bedford, PA. 15522 (814) 623-7566 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the 26th day of October, 2005, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 By Bra O. lIison, E quire Attorney for Defendant 102 W. Penn Sf., Ste. 1 Bedford, P A. 15522 (814) 623-7566 Cl ( ....., r;~ ~n o r) -,4 ~.) ~"..j -< o -n .-1 :J~ -r'! nlr~ :C~ ',,il.,.,- :C) :\'-', -::J ;-.-,....\ ',,:, () t,)rn :,::~t .",. :]~ - --",-... (:? ("-.) ALBERT H. SHULLER and SARANNE E. SHULLER, husband and wife, Plaintiffs, v. SARAH M. SHULLER, Defendant. TO: Sarah M. Shuller c/o Bradley D. Allison, Esquire 102 West Penn Street, Suite 1 Bedford, Pennsylvania 15522' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V AN1A NO. 2005- 3361 CIVIL TERM CIVIL ACTION-LAW NOTICE TO PLEAD \J You are hereby notified that you have twenty (20) days in which to plead to the enclosed Reply To New Matter and Answer And New Matter To Counterclaims Of Defendant or a Default Judgment may be entered against you. Date: /l1/QoS- r t David A. Baric, Esquire J.D. #44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 ALBERT H. SHULLER and SARANNE E. SHULLER, husband and wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. NO. 2005- 3361 CIVIL TERM SARAH M. SHULLER, Defendant. CIVIL ACTION-LAW REPLY TO NEW MATTER AND ANSWER AND NEW MATTER TO COUNTERCLAIMS OF DEFENDANT NOW, come Plaintiffs, Albert H. Shuller and Saranne E. Shuller, by and through their attorneys, O'BRIEN, BARIC & SCHERER, and file the within Reply to New Matter and Answer and New Matter to Counterclaims of Defendant and, in support thereof, set forth the following: 26. Paragraphs one (1) through twenty-five (25) of the Complaint of Plaintiffs are incorporated herein by reference. 27. To the extent these averments constitute conclusions of law, no response is required. To the extent a response is required, the averments are denied. To the contrary the Life Time Estate Agreement is a document which speaks for itself. Defendant accepted the agreement and Plaintiffs did not believe Defendant would breach the obligations of the agreement. The agreement is binding and enforceable. 28. Denied. To the contrary, the agreement is binding and enforceable. Consideration for the agreement included, but was not limited to, the rights granted to Defendant therein. The property was habitable and, in point of fact, individuals had resided in the property at different periods of time. 29. Denied. The parties entered into the agreement realizing and expecting that Defendant would convey the property over to Plaintiffs after executing the Life Time Estate Agreement. 30. To the extent these averments constitute conclusions oflaw, no response is required. To the extent a response may be required, the averments are denied. To the contrary, the parties entered into the Life Time Estate Agreement realizing and expecting that Defendant would convey the property over to Plaintiffs after executing the agreement. 31. Denied. To the contrary, the property was habitable and individuals had resided in the property for different periods prior to execution of the agreement. 32. Denied. There was no fraud or misrepresentation made by Albert Shuller to Defendant. Albert Shuller was not a "financial advisor" to Defendant. At or about the time of the transaction, Defendant had credit card debt of approximately $50,000.00 and was seriously delinquent in her payment of her debts. No constructive trust is warranted under the facts or applicable law. 33. Denied. Albert Shuller did not stand in a fiduciary capacity to Defendant and there was not a confidential relationship between Albert Shuller and Defendant. The "Employment Agreement" did not establish a fiduciary duty or a confidential relationship between Albert Shuller and Defendant. To the contrary, the Employment Agreement merely permitted Albert Shuller to obtain debt information from the creditors of Defendant. Albert Shuller did not breach any fiduciary duty to Defendant because he had no such duty. Moreover, Albert Shuller did not coerce Defendant into any act. Plaintiffs did not believe Defendant would breach her obligations under the Life Time Estate Agreement. Whether Defendant was under "economic duress" is not answerable because such phrase implies a state of mind of Defendant and it is, therefore, denied. 34. Denied. To the contrary, Plaintiffs should be granted the relief sought in their Complaint. There was no fraud in the inducement and Plaintiffs incorporate by reference their response to paragraph thirty-two (32) as though set forth at length. 35. Denied. To the contrary, the Life Time Estate Agreement is binding and enforceable and Plaintiffs have never waived the terms or obligations of the agreement. Plaintiffs did not believe Defendant would breach the agreement at the time of execution. 36. Denied. To the contrary, the Life Time Estate Agreement is binding and enforceable. The parties to the agreement reviewed and agreed to the terms therein. Defendant was aware of the obligations she had under the agreement and accepted those obligations never representing to Plaintiffs her intent to breach the agreement. 37. Denied. To the contrary, the damages and losses incurred by Plaintiffs were the direct and proximate result of the acts of Defendant and Plaintiffs have not failed to mitigate their damages. 38. To the extent these averments are conclusions oflaw, no response is required. To the extent a response may be necessary, the averments are denied. To the contrary, Plaintiffs have stated a claim upon which relief may be granted. 39. Denied. To the contrary, the parties were aware of a loan being made by Plaintiffs to Defendant and Defendant began repayment of the loan and defaulted on the repayment plan agreed to by the parties as further set forth in the Complaint at paragraphs twenty-two (22) through twenty-five (25) which paragraphs are incorporated herein by reference as though set forth at length. 40. To the extent these averments constitute conclusions oflaw, no response is required. To the extent a response is necessary, the averments are denied. To the contrary, Plaintiffs were not aware Defendant intended to breach the agreement. At no time did Defendant indicate to Plaintiffs that she intended to breach the agreement or would be unable to fulfill her obligations under the agreement. 41. To the extent these averments constitute conclusions oflaw, no response is required. To the extent a response is necessary, the averments are denied. To the contrary, Defendant borrowed the money and agreed to repay the money loaned to her. Defendant received the benefit ofthe money loaned and is not justified in refusing to pay the rightful debt owed to Plaintiffs. 42. To the extent these averments constitute conclusions oflaw, no response is required. To the extent a response is necessary, the averments are denied. To the contrary, Plaintiffs should and are entitled to full title to the property and there were no acts of Albert Shuller which would give rise to an estoppel. 43. To the extent these averments constitute conclusions oflaw, no response is required. To the extent a response is necessary, the averments are denied. To the contrary, there was no fraud or misrepresentation and therefore the doctrine of unclean hands is not applicable to Plaintiffs. 44. To the extent these averments constitute conclusions of law, no response is required. To the extent a response is necessary, the averments are denied. To the contrary, the Life Time Estate Agreement is enforceable against and binding upon the Defendant. 44.(sic) Admitted in part and denied in part. It is admitted only that Defendant does owe Plaintiffs money. The remaining averments are denied. To the contrary, Defendant is not entitled to one-half of the fair market value of the property. WHEREFORE, Plaintiffs request this Court grant judgment in their favor and against Defendant in accordance with the Prayer for relief of Plaintiffs as set forth in their Complaint. ANSWER AND NEW MATTER TO COUNTERCLAIMS COUNT I 45. Plaintiffs incorporate by reference paragraphs one through twenty-five (25) of their Complaint and paragraphs 26 through 44. (sic) of their Reply to New Matter as though set forth at length. 46. Denied. The document is a writing which speaks for itself. To the contrary, the Employment Agreement was intended only to permit Albert Shuller to obtain account balance information from creditors of Defendant. 47. Denied. To the contrary, Defendant is and at all materials times has been a competent adult and not suffering from any mental or physical disability. Defendant has been able to handle and has at all relevant times did handle her financial affairs. Defendant did request advice from Albert Shuller as to how he would structure payment of the many creditors of Defendant, however, Defendant kept and maintained control of her income. It is denied that Albert Shuller had the complete faith and trust of Defendant in the handling of Defendant's finances. 48. Denied. To the contrary, Albert Shuller had no fiduciary duty to Defendant and never breached any such duty. Moreover, Albert Shuller was not the agent, servant, employee, representative or financial advisor of or to Defendant as those titles imply a relationship which did not exist. Plaintiffs incorporate by reference their answer to paragraph 47 as though set forth at length herein. (a) Denied. To the contrary, Plaintiffs and Defendant agreed to transfer the property to Plaintiffs and Defendant would retain a life estate interest. The Defendant was not under economic duress at the time of the transfer such that it influenced the transaction. Defendant's obligations under the Life Time Estate Agreement were reasonable and within the financial capabilities of Defendant. (b) Denied. To the contrary, Plaintiffs and Defendant executed the Life Time Estate Agreement which created a life estate interest in the property for Defendant subject to the terms therein. (c) Denied. To the contrary, Albert Shuller had no fiduciary duty to Defendant and was not her agent or attorney-in-fact such that commingling of assets would be a potential issue. (d) Denied. To the contrary, Albert Shuller did not advise Defendant that the property would be returned to her. Defendant knew she would have the right to live in the property under the Life Time Estate Agreement provided she complied with the terms of that agreement. 49. Denied. To the contrary, there were no breaches by Plaintiffs of any duty owed to Defendant. Defendant has not been deprived of any property right or interest to which she could make claim. WHEREFORE, Plaintiffs request judgment be entered in their favor and against Defendant in accordance with the prayer for relief as set forth in the Complaint and that the Counterclaims of Defendant be dismissed with prejudice. COUNT II 50. Plaintiffs incorporate by reference paragraphs one through twenty-five of their Complaint, paragraphs 26 through 44. (sic) of their Reply to New Matter and paragraphs 45. through 49 of this Answer as though set forth at length. 51. Denied. To the contrary, at all material times Albert Shuller was not a financial adviser to Defendant and did not have a confidential relationship with her. Moreover, Defendant did not place her "complete" trust in Albert Shuller. Rather, Defendant did and continued to run and manage her own income. Albert Shuller did, at the request of Defendant, discuss with Defendant which creditors he thought should be paid. Defendant made the final decision on creditors to be paid, when to pay them, how much to pay them and she wrote the checks to pay them. 52. Denied. To the contrary, there was no "relationship" to breach and Albert Shuller never breached any duty to Defendant. (a) Denied. To the contrary, no misrepresentation regarding the real estate was made by Albert Shuller to Defendant regarding return of the real estate. The obligations of Defendant under the Life Time Estate Agreement were plainly written, easily understood, not unreasonably burdensome and were within the financial means of Defendant. It was neither the intention nor it was it discussed by Plaintiffs and Defendant that the real property would be returned to Defendant. (b) Denied. To the contrary, Albert Shuller had no such obligation to Defendant and Defendant certainly could have sought legal representation of her own. (c) Denied. To the contrary, there was no fraudulent advice given by Albert Shuller to Defendant. Albert Shuller was not acting in any capacity which placed any duties upon him as an agent or attorney in fact for Defendant such that commingling of assets would be an issue. (d) Denied. To the contrary, it was neither the intention nor was it discussed by Plaintiffs and Defendant that the real property would be returned to Defendant. 53. Denied. To the contrary, there were no breaches by Plaintiffs of any duty owed to Defendant. Defendant has not been deprived of any property right or interest to which she could make claim. WHEREFORE, Plaintiffs request judgment be entered in their favor and against Defendant in accordance with the prayer for relief as set forth in the Complaint and that the Counterclaims of Defendant be dismissed with prejudice. COUNT III 54. Plaintiffs incorporate by reference paragraphs one through twenty-five of their Complaint, paragraphs twenty-six through forty-four (sic) of their Reply to New Matter and paragraphs forty-five through fifty-three of this Answer as though set forth at length. 55. Admitted in part and denied in part. It is admitted only that Defendant has made a request to retrieve certain personalty. The scope of that request and whether the personalty identified by Defendant is actually the property of Defendant is denied and proof thereof demanded. 56. Admitted in part and denied in part. It is admitted only that the document was forwarded by the attorney for Defendant to the attorney for Plaintiffs. Whether the personalty identified by Defendant in the list is actually the property of Defendant is denied and proof thereof demanded. It is denied that the personalty identified on the list would have a value in excess of $25,000.00 and proof thereof is demanded. 57. Denied. To the contrary, Plaintiffs requested that Defendant sign a release to absolve them from liability in the event Defendant or her agents were injured while removing personalty from the property. Defendant has failed and refused to execute such release. Attached hereto as Exhibit "3" and incorporated by reference is a copy of correspondence from the attorney for Plaintiffs to the attorney for Defendant requesting execution of such a release. There has been no conversion of any personal property of Defendant by Plaintiffs. 58. Denied. Plaintiffs incorporate by reference their answer to paragraph fifty-seven as though set forth at length. Punitive damages are neither warranted nor supported by the facts. WHEREFORE, Plaintiffs request judgment be entered in their favor and against Defendant in accordance with the prayer for relief as set forth in the Complaint and that the Counterclaims of Defendant be dismissed with prejudice. NEW MATTER TO COUNTERCLAIMS 59. The Defendant is a college graduate. 60. At all relevant times hereto the Defendant was employed as a registered nurse. 61. At all relevant times hereto the Defendant was receiving a paycheck for her work as a nurse. 62. Albert Shuller did not have authority to write checks from any checking accounts held by Defendant. 63. Albert Shuller and Sarah Shuller are brother and sister. 64. At the time of the execution of the Life Time Estate Agreement, Defendant had credit card debts totaling in excess of $50,000.00. 65. At the time of the execution of the Life Time Estate Agreement, Defendant intended to sell her real property in Bedford County, Pennsylvania and relocate to Cumberland County, Pennsylvania. 66. Defendant consented to the terms and provisions of the Life Time Estate Agreement. 67. Defendant knew and understood the terms and provisions of the Life Time Estate Agreement at the time she signed the document. 68. As of the date of signing the Life Time Estate Agreement the Defendant agreed to convey over to the Plaintiffs the real property referenced in the Agreement. 69. The allegations of an oral agreement to reconvey the real estate to Defendant are barred by the Statute of Frauds. 70. The Plaintiffs were justified in each and every one of their acts regarding the subject matter of this litigation. 71. The acts of Defendant in breach of the Life Time Estate Agreement work an estoppel of the claims now asserted by Defendant. 72. Albert Shuller was never a permitted signatory on checking accounts held in the name of Defendant. 73. Since November 29,2001, the Defendant has exclusively controlled her income. WHEREFORE, Plaintiffs respectfully request this Court enter judgment in their favor and against Defendant dismissing the Counterclaims of Defendant with prejudice and awarding costs and expenses to Plaintiffs. Respectfully submitted, David A. Baric, Esquire LD. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 dab.dir/realestate/sh uller/counterclaim.rep VERIFICATION The statements in the foregoing Reply To New Matter And Answer And New Matter To Counterclaims Of Defendant are based upon information which has been assembled by our attorney in this litigation. The language of the statements is not our own. We have read the statements; and to the extent that they are based upon information which we have given to our counsel, they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904 DATE: I/~ /</ -l?"/ relating to unsworn falsifications to authorities. . Shuller /4~t ;Ai~ Saranne E. Shuller I, Ii II I i I II CERTIFICATE OF SERVICE I hereby certify that on November 15, 2005, I, David A. Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of Reply To New Matter and Answer And New Matter To Counterclaims of Defendant, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Bradley D. Allison, Esquire Law Office Of Bradley D. Allison 102 West Penn Street, Suite 1 Bedford, Pennsylvania 15522 David A. Baric, Esquire 0 ". ) 0 ~ c~ , ~) -Tl <,:","l =ri -.=2 c:~ 1'1'1 --- iTl ~J c:~) C'J (~) :t'h -' " ~:; i n ~- \,.) , -,.. (.,) :.q f'...:.~ ", ALBERT H. SHULLER and SARANNE E. SHULLER, Husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW No.: 2005-3361 CIVIL TERM SARAH M. SHULLER, Defendant : JURY TRIAL DEMANDED DEFENDANT'S REPLY TO PLAINTIFFS' NEW MATTER TO DEFENDANTS COUNTERCLAIM AND NOW, comes the Defendant, Sarah M. Shuller, by and through her attorney, Bradley D. Allison, Esquire, and files the within Reply to Plaintiffs' New Matter to Defendants Counterclaim Against the Plaintiffs, respectfully setting forth as follows: 58. Paragraphs 1 through 58 of Defendants Answer with New Matter and Counterclaims to Plaintiff's Complaint incorporated herein by reference as if set forth at length. 59. The averments of Paragraph 59 of Defendants' New Matter is specifically denied. To the contrary, Defendant has nursing credits and has obtained certification as a registered nurse but has no college degree. Strict proof otherwise is demanded at the time of trial. 60. Admitted. 61. Admitted. 62. Admitted. 63. Admitted. . 64. The averments of Paragraph 64 of Plaintiffs' Answer with New Matter are specifically denied. The amount of consolidated debt owed by Defendant at the time the Life Time Estate document was signed was well below $50,000.00 and believed to be approximately $29,607.00. Strict proof otherwise is demanded at the time of trial. 65. The averments of Paragraph 65 of Plaintiffs' Answer with New Matter are specifically denied. To the contrary, while Defendant had discussed possibly selling her property in Bedford County, no decision has been made at such time. Strict proof otherwise is demanded at the time of trial. 66. Paragraph 66 of Plaintiffs' New Matter contains a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 67. Admitted in part and denied in part. It is admitted that Defendant knew what the terms of the Life Time Estate Agreement were. It is specifically denied that she understood she was to be bound by them or that Plaintiffs intended that she be bound by them because both she and Plaintiffs knew that she was not able to meet such terms at the time the same was signed, which she had explained to Plaintiffs. Strict proof otherwise is demanded at the time of trial. 68. Paragraph 68 of Plaintiffs' New Matter contains a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. By of further answer, Defendant only conveyed the real property at issue because Albert Shuller had told her she need to do so to avoid creditors and once ~ ~ her financial situation was better, the property would be deeded back to her. Strict proof otherwise is demanded at the time of trial. 69. Paragraph 69 of Plaintiffs' New Matter contains a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 70. Paragraph 70 of Plaintiffs' New Matter contains a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 71. Paragraph 71 of Plaintiffs' New Matter contains a conclusion of law to which no response is required. To the extent that a response is deemed required, each and every averment of same is specifically denied, and strict proof thereof is demanded at the time of trial. 72. Admitted. 73. The averments contained in Paragraph 73 are specifically denied. To the contrary, Plaintiff Albert Shuller, acting as the agent, servant, employee and fiduciary of Sarah M. Shuller, directed Defendant in the manner to utilize her income and told her what checks to sign, and strict proof otherwise is demanded at the time of trail. - . WHEREFORE, Defendant Sarah M. Shuller respectfully requests your Honorable Court to enter judgment in her favor and against Plaintiffs on Defendant's Counterclaims and dismiss Plaintiffs' Complaint with prejudice, with costs of suit to be paid by Plaintiffs. A JURY TRIAL IS DEMANDED. Respectfully Submitted, LAW OFFICE OF BRADLEY D. ALLISON ~- adley D. A ison, Esquire .I.D. No. 80072 Attorney for Defendant 102 W. Penn Street, Ste. 1 Bedford, PA 15522 (814) 623-7566 ~ . VERIFICATION I, Sarah M. Shuller, hereby verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa. Con. Stat. Ann. Section 4904 relating to unsworn falsification to authorities. By 4~.~ Sarah M. Shuller Dated: November 23,2005 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been served in this matter on the/stday of December, 2005, by placing a copy of the same in the United States Mail, Postage Paid, addressed as follows: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 By (~, '-".~ 1 !.'\ C I (,)"", L':' "','" '-, II ALBERT H. SHULLER and SARANNE E. SHULLER, husband and wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. NO. 2005- 3361 CIVIL TERM SARAH M. SHULLER, Defendant. CIVIL ACTION.LA W PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the Complaint and Counter-Claim filed in the above-captioned matter as having been settled and discontinued with prejudice. r2 mEN. Mm~ David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 radley . Allison, Esquire I.D. # 80072 102 West Penn Street, Suite 1 Bedford, Pennsylvania 15522 (814) 623-7566 Attorney for Defendants Attorney for Plaintiff dab.dir/realestate/sbuller/discontinue. pra ,-...) = c::::::> c.r- c:::;l fTi ("") co o 11 ~-n r11E -0 t!J -fJ \...) ,~~~: (=.~- ~~t~ Z';{" '"" ~ --c7 ......... ...i.... r'" .- W c....:;