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HomeMy WebLinkAbout05-3386 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. ~ 33&'6 C' ~:l NOTICE OF APPEAL J:4, s: ~O~ Notice IS given that the appellant has filed in the above Court of Common Pleas an appeat from the judgment ren!ered by the District Justice on the date and in the case referenced below. Judicial District, County Of v c.lI - lJ 0 OD I '11 - 05" This block will be signed ONLY when this notation is required under Pa. RCP.O.J. No. 1oo8B. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAI SUPERSEDEAS to the judgment for possession in this case, 1001(6) in action (20) days after filing the NOTICE of APPEAL Signature of Prothonol.sty or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PaRCPD.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon 0JlclwJ-/1 t)f41!u.V Name of appellee(s} appellee(s), to file a complaint in this appeal (Common Pleas No. QoO-:; _ '03i'1" ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. RULE: To G!"U/.lj)t3~lp.,.... Name of appel/ee(s) , appellee(s) (1) You are notified that a rule is hereby entered upon you to file a compiaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: '\&\v '5" ,2005'" ~-~ m; ~~ 'gnat"," 01 Prot ,'Y Oeputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTrrRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 COURl FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FiLED WITHIN TEN (10) DA YS AFTER filing of the notice of appoaL Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served o a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) ,20 o by personal service rJ by (certified) (registered) marl, sender's receipt attached hereto, and upon the appellee, (name) , 20 0 by personal service sCl\der's receipt attached hereto , on o by (cMilled) (registered) mall. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 _"_._".,,_,,~_.,~_.._,.,,_,..,,,,_,e".,,_'_..__.'~_"_"._ .,_,...,__._.._...__.._,_~,._.,_~,._.__ Signature of affiant Signature of official before whom affidavit was mt'Jde My commission expires an 20 (") ,..., = 0 c: = "TI <'" en v(f~ '- ~~ mn c: Z.:.:x~ .- z[c-_ , !~ ~~~" CJ1 ~C~ .)>C' ,.. .~ Le" :x 5> _J c: 0 z ~ ::;! '" 0 -< Tille otoffidaJ AOPC 312A - 02 e ,.., ~ = = s: "'" -0 eo <-. *~ mr'n c= Z:1) . zc I ~-r' ~:2 C1I ~C' :Pc ." ~~ ZC< ::J!: 'Pc: ~ s:; ~ 0 ~ N PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE: TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing of the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF C~~!amrJ : S5 AFFIDAVIT: I hereby (swear) (affirm) that I served rsf' a copy of the Notice of Appeal, Common Pleas No<;(O.:>.:i--3,:t~J~ the District Justice designated therein on (date of service) ~v-t . ..:>-/ , 20 to)', r5i by personal service ~\OOffifiedl(ieglstered) mall, sender's receipt attach~hereto, and upon the appellee, (name) . on 701 . s'" . ' 20 ils' 0 by personal servlc" ~ (certified) (registered) mail, ~endels receipt attached hereto, Signat (SWORN.)) ~ AfFFIRMED) ANfj.B~CRIBED B... EFO.R..<E;..ME THIS If~' DAY OF ,2000 . ~,~~~ TItle ofo is! ~:;>, 3<.i. ~n My commission expires on .20 CJ CJ .D rr <<:J :r nJ .-'l U,S. Post I Service"., CERTIF ED MAILM RECEIPT (Domestic M if Only; No Insurance Coverage Provided) Postage $ NOTARIAL SEAL. PR01liONOTMY,1lOWI'f JI\JSUt 1''-1Sl f CUMSEmN<<l COUN1V COlUIT HOlISE "., CllMMISSION EllI'IIBMJMY2, m d::'\"; I"~ j 1"% C_str pt17,13I,ff rTl CJ CJ Cl Return Receillt Fee (Endorsement Required) CJ Restricted Delivery Fee ....-::t (Endorsement Rel'Wited) U1 nJ Certified Fee AOPC 312A. 02 Total Postage l~ Fees $ :r , ~ ::J;.df./~L.ti~k................m.................. ;:;;:';~p;(jA..~~~~Q?:{/>~~..............m , _.._~._-~ COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of ~6("JCVrd NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. NOTICE OF APPEAL ; ,,(y;".. 1:;1((. i'.l 33K6 c; '...! "JfJfJ':;- Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. 'Scl'LV ZIP CODE /) (j <:; l1' , ()f oy " I, (J/ ~ e"" (" ) _.... ,-,(,I,t IN THE CASE OF (Plaintiff) C \I - 0 () 0(, f 9 I - 0<) "-..1/ Te/tZe. fo' e, If appellanl was CI mant (se. Pa. R.C. .DJ No. 1001(6) in action befor. . Disttic/Justice, A COMPLAt~UST BE FILED within twenty This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No" 1008S. This Notice of Appeal. when received by the District Justice. will operate as a SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL Signa/UrB of Prothono/ary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (ThiS section of form to be used ONL Y when appellant was DEFENDANT (see Pa.RCPD.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon wldw~/1 13o.1I1/uv Name of appe/lee(s) appellee(s), to file a complaint in this appeal (Common Pleas No. QooS- _ ~"3?l, ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. ---;.-e'; ,.' ~.. .. (/;j:> >/&., ~ . ~ ,..../. . .' ,/ ~ t,:.____ ~ o,!!~antor sttomeyor agsnt RULE: To G/dl.vU/ 6a.-.-,Lv Name of appelleefs) , appellee(s) " .- .- /' (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a compiaint within this time, a JUDGMENT OF NON PROS MAY SE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the dale of the mailing. Date:'Jj;I" 5: , 200S- -4 ~~d?/'. ,~ ~ ;gn.tu"'ofPro~D'PUty YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312.02 COURT PILE COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBBRLAND 09-2-01 NOTICE OF JUDGMENTrrRANSCRIPT CIVIL CASE PLAINTIFF: .NAME am:! ADDRESS !cOLDWELL BAlIXBR HOMBSALE SERV GROUP SA BROOKWOOD AVE CARLISLE, PA 17013 L ~ Mag. Dist. No.: MDJ Name: Hon Address PAULA P. CORREAL 1 COURTHOUSE SQUARE CARLISLB, PA VS. T""h,", (717) 240-6564 17013 -0000 DEFENDANT: IsCBWARTZ, 1007 ACU CARLISLB, L Docket No.: CV-0000191-05 Date Filed: 5/05/05 NAME and ADDRESS MARY LYNN L, BT AL. DRIVE PA 17013 -, -1 &'.'... M,.. ... ..it- MARY LYNN L. SCBWARTZ 1007 ACRE DRIVE CARLISLB, PA 17013 THIS IS TO NOTIFY YOU THAT: Judgment: [iJ Judgment was entered for: POR PLll.I1Il'r:Ul'p (Name) I"'nT.nw1n.T. lUl.1crR"lI'V Ifn_llllT.lI' llR'RV [iJ Judgment was entered against: (Name) llCllWll'RTZ, VllVY T.Y1IIJII' T. in the amount of $ 4 124 0;0 on: . (Date of Judgment) ';/Oq/05 . . D Defendants are jointly and severally liable. D Damages will be assessed on: (Date & Time) D Amount of Judgment Subject to Attachment/42 PRC.S. 98127 $ o Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 4.000.00. Judgment Costs $ 124.511} Interest on Judgment $ .o.e Attomey Fees $ .00 Total $ 4,124.50 Post Judgment Credits $ Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ ,~ "';1"'_ ~tllch D This case dismissed without prejudice. ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DiViSION. YOU MUST INCLUDE A COpy OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES. IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MA Y BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 6/9/05 Date (3.~ ~~-e , Magisterial District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment 6/9/05 Date , Magisterial District Judge My commission expires first Monday of January, 2006 . SEAL AOPC 315.05 DATB PRINTED: 6/13/05 10:51:12 AM *In my opinion the Amendment to Exclusive Right to Sell Agreement can be misconstrued as appears to t~le happened in this case. Therefore, I believe my award is appropriate under che circumstances. Both part~~c must bear the responsibility for this situation. ! , Paula P. Correal Magisterial District Judge 09-2-01 NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS 'cOLDWELL BAlIXER HOMESALE SERV GROUP 8A BROOlOfOOD AVE CARLISLE, PA 17013 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No." MDJ Name: Hon Address PAULA P. CORREAL 1 COURTHOUSE SQUARE CARLISLE, PA L ~ / 17013-0000 DEFENDANT: 'sCHWARTZ, 1007 ACRE CARLISLE, L Docket No.: CV-0000191-05 Date Filed: 5/05/05 VS. NAME and ADDRESS I T"ephM' (717) 240-6564 MARY LYD L, ET AL. DRIVE PA 17013 , ~ . MARY LYD L. SCHWARTZ 1007 ACRE DRIVE CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: Judgment [iJ Judgment was entered for: FOR PL1I. "I1IIT"Il!'F (Name) rOT.nwRT.T. lUUlI'Il'1l!ll ROM1l!AlIT.R ARllV [iJ Judgment was entered against: (Name) AI"RWlI'RTZ, MTrRlIIlT. C! in the amount of $ 4,124 !ill on: (Date of Judgment) G/IlQ/O!i . o Defendants are jointly and severally liable. o Damages will be assessed on: o This case dismissed without prejudice. (Date & Time) Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total $ 4,000.00 $ 124.50 $ .00 $ .00 $ 4,124,50 ] 1 ~J~ i I O Amount of Judgment Subject to Attachment/42 Pa.C.s. 98127 $ o Portion of Judgment for physical damages arising out of residential lease $ Post Judgment Credits $ Post Judgment Costs $ ----------....- ------------ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FlUNG A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTlfRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAYBE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PA YS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ;:'/Gln~ . Date c&.~ (~~--e , Magisterial District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment 6/9/05 Date , Magisterial District Judge My commission expires first Monday of January, 2006 . SEAL AOPC 315.05 DATE PRINTED: 6/13/05 10:31:20 AM ~ ~ '-. C' ~ ~"\ ~ ~ '''\ -=t::- ~ ~ .~ '"'\ " ).<~ ;,,- " ( ~ 4__, ~ rl-l C) "" f~: = 0 = c.n " .-..., <- ~" -;;;;> , c:: r- nl- 2,;:} I "In :;J6 ,--- U1 9( ~: -2 ..,. < " :!> ()-d ~i~_~ :JI: o~ (") (srn .~ ::~ N 55 -< N -< July 13, 2005 Plaintiff vs Defendant Coldwell Banker Homesale Services Group vs Mary Lynn L. Swartz Michael C. Swartz Court of Common Pleas No. #2005-3386 Notice of Response from Plaintiff (appellee) Coldwell Banker Homesale Services Group to Defendant (appellant) Mary Lynn L. Swartz and Michad C. Swartz. On November 15,2004 Alice Womack presented a marketing proposal to Mr. and Mrs. Swartz and they entered into a Listing Agreement to sell 2854 Enola Road, Carlisle, PA. The expiration date was November 15, 2005. Alice Womack also assisted the Swartz in the purchase of 1007 Acre Drive, Carlisle, P A During this time Alice was also resourceful in helping the Swartz secure alternate financing so they did not need to sell 2854 Eoola Road immediately. Since it was the holidays and very stressful for the family, Mrs. Swartz ask~:d Alice to delay entering the property in the Multi-List until a later date. Following the purchase of 1007 Acre Drive, Alice regularly contacted Mrs. Swartz (at her request) to recommend possible names of buyers for th~i purchase of2854 Enola Road. Furthermore Alice created various marketing plans to facilitate the sale of their property. On April 10, 2005 Alice learned from Mrs. Schwartz that they sold 2854 Enola Road through ReIMax Broker Mike Adler. It is our understanding that 2854 Enola Road, Carlisle settled on Thursday, April 28, 2005. On April IS, 200S I sent a letter to Mr. and Mrs. Swartz outlining events. 1 asked for a fee of$13,500. As a result of discussions with Alice Womack, Coldwell Banker has adjusted its fee requirement to $8,000 and proceeded through the Civil Court. June 6, 200S Magisterial District Justice Paula Correal entered a judgment for Coldwell Banker Homesale Services Group. The Judgment was entered against Mary Lynn L. Swartz and Michael C. Swartz in the amount of $4,124.50. Coldwell Banker Homesale Services Group wants to receive the sum from Mr. and Mrs. Michael Swartz. Coldwell Banker Homesale Services Group wants a respon~i (including a check for the sum of $4,124.50) no later than August 3, 200S. Plaintiff's representative: Carol!. Cunningham, Operations Manager Coldwell Banker Homesale Services Group 8 Brookwood Avenue, Suite A Carlisle, PA 17013 ~ + ~ 1 ~. ~:rJ {~~; O"~.I -:;';;"< \')C.,: ~~}" ~~~; " ";PC % ~ f"," .... ~ <- S;; I - G": .~ '>-E ~ 1,-n n'F:: :g,tD ,Q. 7-)(1; '=4S;., ~~?, CD :-< l.i> <..) c James L. Goldsmith, Esquire Attorney 1.D. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, P A 17110 717-232-7661 Attorney for Plaintiff COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Ys. NO. 2005-3386-CIVIL MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING ALA WYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 James L. Goldsmith, Esquire Attorney LD. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, P A 17110 717-232-7661 Attorney for Plaintiff COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO.2005-3386-CIVIL MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION LAW COMPLAINT AND NOW comes Plaintiff by and thorough their counsel Caldwell & Kearns and files this Complaint and in support thereof avers as follows: L Coldwell Banker Homesale Services Group is a Pennsylvania corporation and a licensed real estate broker with a principal place of business located at 3435 Market Street, Camp Hill, Cumberland County, Pennsylvania, 17011 2. Defendants Mary L)'lill and Michael Schwartz, husband and wife, are adult individuals who reside at 1007 Acre Drive, Carlisle, Cumberland County, Pennsylvania, 17013 3. On November 12, 2004 Defendants entered into a written Listing Contract whereby they exclusively engaged Plaintiff to be and act as Defendants' exclusive real estate broker for the sale of real property I'ocated at 2854 Enola Road, 2 Carlisle, Cumberland County, Pennsylvania. A coOpy of the said Listing Contract is attached hereto and made a part hereof as Exhibit" A". 4. The said Listing Contract is an Exclusive Right to Sell agreement that provides in pertinent part: "7 A Seller will pay Broker's Fee if Property, or any ownership interest in it, is sold or exchanged during the term of this Contract by Broker, Broker's salespersons, Seller, or by any other penon or broker, at the listed price or any price acceptable to Seller." S. During the pendency of the Listing Contract it was amended at the request of Defendants to the extent that listing of the property was "not to be placed in MLS, no publicity - not on market". The said Amendment further provides that "All other terms and conditions of the said Exclusive Right to Sell Agreement shall remain unchanged and in full force and effect" The said Amendment to Exclusive Right to Sell Agreement is attached hereto and made a part hereof as Exhibit "B". 6. At no time was the Listing Contract terminated. 7. During the pendency of the Listing Contract, Defendants surreptitiously engaged a second real estate broker and, without notifying that broker of the pendency of the subject Listing Contract, sold their real property. 8. Upon the sale of the subject property, Defendants did not, contrary to the Listing Contract with Plaintiff, pay Plaintiff's fee. 9. Despite repeated demands, the fee owed by Defendants has not been paid. 3 10. Pursuant to the Listing Contract Defendants are obligated to pay 6% of the selling price of $239,000 plus a $195 transaction fee which comes to the total amount of $14,435 demand for which is hereby made. WHEREFORE Plaintiff demands judgment against Defendants in the amount of $14,435 plus costs of suit and interest Respectfully submitted: Date: ~f /o~~ 05-598/92054 4 VERlflCA 1'lON I verify that the averments in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating 10 unsworn falsification to authorities. Date: J7Jt., /O$" , By: Sh OIl A Helsel, President Harrisburg Region Coldwell Banker Hortlesale Services Group ^~I This fonn recomrn LISTING CONTRACT EXCLUSIVE RIGHT TO SELL REAL ESTATE "" "" .,_~ '". ,,,"' ~,,<C";. m. '..", .~ """~_. ...".., "Mro~ e.. . ~ ~ J~ ,:f;: ~~J/b/t1J!J/~c iJw ~o . ) 1 BROKER (Compan 2 LICENSEE S) 3 SELLER "I .- , Does Seller have a Listi 5 If yes, explain: 6 7 1. , 9 10 11 12 13 " 2. 15 16 17 " 19 20 3. 21 22 4. 2J 24 25 2G 27 28 5. 29 30 6. 31 32 n 34 35 36 37 38 7. 39 40 41 42 4J " 45 " " " " 50 51 52 53 " 55 LISTED PRICE $ 8enj D;JIJ . 4 / School District & ::.. ~/) ~,Q Present Use /l i~J;J.. (l~~ lock, Deed Book, Pa~e, Recording Date) -D -0 0 ST RTING & ENDING DATES OF LISTING CONTRACT (ALSO CALLED "TERM") A. No Association of REALTORS@ has set or recommended the term of this contract By law, the length or term of a listing c. tract may not exceed one year. Broker and Seller have discussed and agreed upon the length or term ~ this Contract. B. Starting Date: This Contract starts whcn signed }:froker an ler, unless ~ise stated here:-!-1 ([V, 1S-,/J.DOLj C Ending Date: This Contract ends on _ f /j-O O~ i DUAL AGENCY Seller agrees that Broker may also represent the buyer(s) of the Property. The Broker is a DUAL AGENT wh representing both Seller and the buyer in the sale of a property. ! DESIGNATED AGENCY o Not Applicahle o Applicable. Broker may designate licensees to represent the separate interests of Seller and the buyer. Licensee (identifi above) is the Designated Agent, who will act exclusively as the Seller Agent If Property is introduced to the buyer by a licens in the Company who is not representing the buyer, then that licensee is authorized to work on behalf of Seller. If Licensee is al the Buyer's Agent, then Licensee is a DUAL AGENT BROKER'S FEE No Association ofREALTORS@ ~s set or recommended the Broker's Fee. BCQker and Seller have negotiat the fee that Seller will pay Broker. Broker's Fee is % of the sales price AND $ I c; 6 , paid by Sell. COOPERATION WITH OTHER BROKERS Licensee has explained Broker's company policies about cooperating with other brokers. Broker and Seller agree that Broker will p: from Broker's Fee a fee to another broker who procures the buyer, is a member of a Multiple Listing Service (MLS), and who: A. ~ represents Seller (SUBAGENT). Broker will pay ~ of/from the sale price. B. .Q/ represents the buyer (BUYER'S AGENT). Broker will pay '3 of/from the sale prie. A Buyer's Agent, even if compensated by Broker for Seller, will represent the interests of the buyer. C. 0 does 1I0t represent either Sell~or a buyer (TRANSACTION l~lCENSEE). Broker will pay U of/from the sale price. PAYMENT OF BROKER'S FEE it.. Seller will pay Broker's Fee if Property, or any ownership interest in it, is sold or exchanged during the term of n Contract by Broker, Broker's salespersons, SeUer, or by any other person or broker, at the listed price or any price acceJl able to Seller. B. Seller will pay Broke,'s Fee if a ready, willing, and able buyer is found by Broker or by anyone, including Seller. A willing buy is one who will pay the listed price or more for the Property, or one who has submitted an offer accepted by Seller. C. Seller will pay Broker's Fee if negotiations that are pending at the Ending Date of this Contract result in a sale. D. Seller will pay Broker's Fee for a sateAhalt;C{ccurs after the Ending Date of this Contract IF: (I) The sale occurs within -:tl _J of the Ending Date, AND (2) The buyer was shown 0' negotiated to buy the Property during the term of this contract, AND (3) The Property is not listed under an "exclusive right to sell contract" with another broker at the time of the sale. E. If a buyer signs an agreement of sale then refuses to buy the Property, or if a buyer is unable to buy the Property because of faJ ing to ~ ~I 'he things required of the buyer in the agreement of sale (buyer default), Seller will pay Brok (1 bL '76 oflfrom buyer's deposit monies, OR the Broker's Fee in Paragraph 5, whichever is less. E If the Property or any part of it is taken by any government for public use (Eminent Domain), Seller will pay Broker's Fee fro any money paid by the government. G. [fa sale occurs, Broker's Fee will be paid upon delivery of the deed or other evidence of transfer of title or interest. [{the Proper is transferred by an installment contract, Broker's Fee will be paid u alIment contract. XLS Page 1 of 4 11. J [B REAuQ1;4 Pennsylvania Association of REALTORS" ASSOCIATION OF REALTORSill2C ll, The VoIc8forRea/Esbrt,,"InPen....ytvarJla 168 25. MARKETING OF PROPERTY / 169 k Where permitted, Broker, at Broker's op'ion, may use: J2f For sale sign 0 Sold sign 0 Key in office mock box )l1Print /electronic advertising, including photographs mroperty address in print/electronicadvertising. B. Broker fi will /0 \vill not use a Multiple Listing Service (MLS) to advertise the Property to other real estate brokers an, salespersons. Seller agrees that Broker, Licensec, and the MLS are not responsible for mistakes in the MLS' and/or advertising of the Property. 174 26. ITEMS INCLUDEDINOT INCLUDED IN THE PRICE OF THE PROI'ERTY A Included in the sale and purchase price are all existing items permanently installed in the Property, free ofliens, including plumb ing; heating; lighting fixtures (including chandeliers and ceiling fans); water treatment systems; pool and spa equipment; garagl door openers and transmitters; television antennas; shmbbery, plantings, and unpotted trees; any remaining heating and cookin~ fuels stored on the Property at the time of settlement; wall to wall carpetulg; window covering hardware, shad!,s, and blinds; built. in air onQitioners; bu' t~in ppliances, a d th fa e/Qven, unl s50thenvis 5t ted..AJ inclu,ded:-( t<- . r \ A-- '\- (, i-\ . allowing items re NOT .ncluded in the pure ase d nee ofthe Prope[ly: , -vel-n c Items leased by the Seller: '" 185 TITLE & POSSESSION k Seller will givel'ossession of Property to a buyer at settlemeut, or on B. At settlement, Seller will give full rights of ownership (fee simple) to a buyer except as follows: (I) Mineral Rights Agreements: (2) Other: C selle~has: 't' gj ~ f/- ~-1~ ~ortga e wit: '~.J-- - n rc Ct .~ . Amount of balance $ <> lfJ, J I, Address: l oOIJ'ft;r,S:;u}!,J[) (q3J1Yhone ~1,OD 'J 1;3~79t'b. Acel #: D(b~& '79.&5-1. o Equity Loan wit : Amount of balance $ Adejress: Phone: . Acct #: .0' Seller autborizes Broker to receive mortgage payoff and/or equity loan payoff information from lender(s). ,D. Sen~'h'iH':: 0 Judgrnoot5 OJ\.1l.mieiJiel.\33c3~llH;ul 0 Pa:;lDuc;TJ.X1::; DOlL\..!. $ $ $ $ E. If Seller, at any time on or since January], 1998, has been obligated to pay support under an order on record in any Pennsylvania 199 county, list the county and the Domestic Relations Number or Docket Number: ~..x ~ 200 TAXES, UTILITIES, & ASSOCIATION FEES 201 A At settlement, Seller will pay one-half of the total Real Estate Transfer Taxes, unless otberwise stated here: 202 B. Real Estate Property Tax Assessment $ WagelIncome Tax $ C. .l'stimatebUti1i~i~s (trash,' w~ter, ewer, electric 207 n:1fAssociation Fees Include: 208 BUYE2INANCING Seller wiyccept the following arrangements for buyer to pay for the Property: 209 _8 Cash -a--- Conventional mortgage . 0 FHA mortgage 210 0 Seller's help to buyer (if any): 170 171 172 173 175 176 177 178 179 180 181 182 153 186 187 188 189 190 191 192 193 194 195 196 197 196 203 204 205 206 B. ADDITIONAL INFORMATION (OPTIONAL) Yearly Taxes $ Per Capita Tax $ ;(j-,-r: I I () () -ISD 1m h-' ~ I VA mortgage 211 Seller has read the Consumer Notice as adopted by the State Real Estate Commission at. 49 Pa. Code ~35.336. 212 SeHer ghres permission for Broker to send information about this transaction to the fax number(s) and/or e-mail address(es) listed below. 213 Seller has read the entire Contract before signing. All Sellers must sign this Contract. 214 Return by facsimile (FAX) constitutes acceptance of this Contract. 215 216 SELLER'S MAILING ADDRESS: LER IS ADVISED TO CONSULT AN ATTORNEY. 217 218 PHONE: 219 SELLER 222 SELLER 223 224 Dm ~f.P}kJ~~,m. DATE t!ct/r~;ItJ>j '~G I I, DATE l(l/Bj ()~ C- XL~ Designated Agency: In designated agency, the employing broker may, with your consent, designate one or more licensees from the real estate compaI1Y to represent you~ Other licensees in the company may represent another party and shall not be provided with any confi- dential information. The designated agent(s) shall have the duties as listed above under seller agency and buyer agency. In designated agency, the employing broker will be a dual agent and have the additional duties of: Taking reasonable care to protect any confidential information disclosed to the licensee. Taking responsibility to direct and supervise the business activities of the licensees who represent the seller and buyer while raking no action that is adverse or detrimental to either party's interest in the transaction. The designation may take place at the time that the parties enter into a written agreement, but may occur at a later time. Regardless of when the designation takes place, the employing broker is responsible for ensuring that confidential infomlation is not disclosed. Transaction Licensee: A transaction licensee is a broker or salesperson who provides communication or document preparation services or performs other acts for which a license is required WITHOUT being the agent or advocate for either the seller/landlord or the buyer! tenant. Upon signing a written agreement or disclosure statement, a transaction licensee has the additional duty of limited confi- dentiality in that the following information may not be disclosed: The selJer/landlord will accept a price less than the asking/lisring price. The buyer/tenant will pay a price greater than the price submitted in a. written offer. The seller/landlord or buyer/tenant will agree to financing terms other than those offered. Other information deemed confidential by the consumer shall not be provided to the transaction licensee. OTHER INFORMATION ABOUT REAL ESTATE TRANSACTIONS The following are negotiable and shall be addressed in an agreement/disclosure statement with the licensee: The duration of the employment, listing agreement or contract. The fees or commissions. The scope of the activities or practices. The broker's cooperation with other brokers, including the sharing of fees. Any sales agreement must contain the zoning classification of a property except in cases where the property is zoned solely or primarily '0 peffilit single family dwellings. A Real Estate Recovery Fund exists to reimburse any person who has obtained a final civil judgment against a Pennsylvania real estate licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who has been unable to conect the judgment after exhausting all legal and equitable remedies. For complete details about the Fund, call (717) 783-3658. ACKNOWLEDGMENT mJrd1cwfIJ &hk~rl-c , Print ( sumer) Address (optional) jJil ,') -{) is ( Phone Number (optional) Address (optional) Phone Number (optional) royided this document to the above consumer during the initial interview. 4e-- / C E &{1Yltn.-{--lL !-00 ;t1--I-cJe () . r; print. (LiCr:t - // ~ ~~c/I/A orn(<-C/L Signed '"-o:icensee) Date: I Adopted by the State Real Estate Commission at 49 Po. Code 935336. AMENDMENT TO EXCLUSIVE RIGHT TO SELL AGREEMENT DATE OF-EXCLUSIVE RIGHT TO SELL AGREEMENT: RE: PROPERTY f}~ b1 ~k- Q ct SELLER: 5~~~ AGENT:-U "U)I/'rLL-U THIS FORM RECOMMENDED AND APPROVED FOR. BUT NOT RESTRICTED TO, USE BY MEMBERS OF THE GREATER HARRISBURG ASSOCIATION OF REALTORS YkJ, I; &OUL . -L99--_ Seller and Agent agree that the Exclusive R"ight to Sell Agreement shall be amended as follows: o The undersigned hereby authorizes the EXTENSION OF THE LISTING FROM , 1999_ to ,199_ o The undersigned hereby authorizes the LISTING PRICE ADJUSTED FROM $ to $ [lJ The undersigned hereby authorizes the FOLLOWING CHANGE/ADDITION: turf t~ /DQ P tv-ad .1~ f1 ( - ''S ho fJk ~ - jvYf f/v-- iyY\ (/1 ~ FAX Statement: This amendment may be execuled by the Seller or Agent and transmitted 10 the other for execution by telefax. When executed and delivered in such manner, this Amendment will be binding as though -executed by the parties on the original document. All other terms and conditions of the said Exclusive Right to Sell Agreement shall remain unchange .y All Seller ;' /"1L--5 ~ Seller 'By' and effect. ~y ~te/c /j2S 0 </ Date Date > '< . 'ie, ,;. -; ';;'ii.~,' ';: FOR. OFFICE USE,ONLY -t\::~::~ /Hf:;:- - ::', -;:'~~',:f~~~J:i i.-{{\ '~ l' .if AGENT'I:D. #: . _.'7i: '_" ~-, '4 '~ A LS#l 4/95 CERTIFICATE OF SERVICE AND NOW, thisdY day of af(&/;:: , 2005, I hereby certify that I have served a copy of the within Complaint on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, by Certified Mail No. 7003 2260 0001 8627 6404 and first class addressed to: Mary Lynn and Michael Schwartz 1007 Acre Drive Carlisle, PA 17013 CALDWELL & KEARNS By il/fp- 05.598/92054 (') ,..., 0 c=') ~~,. C~::) -n .;::." :n- "-,-. TI c:: hi (;-) C:. '" (.) ,'.-:::; C) -t"j ~-I '"',) -< \.D IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL COVER SHEET COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff vs. NO.2005-3386-CNIL MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants Plaintiff s Motion to Reinstate Complaint or in the Alternative S10tioin to Strike Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint : Caldwell & Kearns : Douglas L. Cassel, Esquire : Attorney ID# 92895 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 dcassel(liJ,caJdwelIkearns.com COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2005-3386-CIVIL MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CNIL ACTION - LAW PLAINTIFF'S MOTION TO REINSTAT]~ COMPLAINT ORIN THE ALTERNATIVE MOTION TO STRIKE DEFENDANTS' PRAECIPE AND/OR MOTION TO STRIKE PLAINTIFF'S COMPLAINT AND NOW, comes the Plaintiff, Coldwell Banker Homesale Services Group, by and through their attorneys, Caldwell & Kearns, and files the within Motion to Reinstate Complaint, or in the alternative, Motion to Strike Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint; and in support thereof, avers as follows: 1. A civil suit for breach of contract was brought by Plaintiff, Coldwell Banker Homesale Services Group, ("Plaintiff'), against Def,endants Michael and Mary Lynn Schwartz, ("Defendants") before Magisterial District Judge Paula Correal. 2. On or about June 9, 2005, a verdict was entered by Magisterial District Judge Paula Correal following the above-captioned parties' appearance before her honorable court. 3. On July 5, 2005, the Defendants appealed the award to the Court of Common Pleas of Cumberland County and Plaintiffs were ddivered a copy of the Notice of Appeal with Praecipe to Enter Rule to File Complaint and Rule to File. 4. On or about August 30, 2005, Plaintiffs filed a Complaint against Defendants alleging a cause of action for breach of contract 5. On or about September 16,2005, Defendants simultaneously filed Preliminary Objections to Plaintiffs Complaint and a Motion to Strike Plaintiffs Complaint for Failure to Follow Time Constraints ofPa. R.C.P.DJ. Rule 1004(B), 6. Defendants' Motion to Strike contained a Praecipe to Strike Complaint for Failure to Comply with Rule 1004(B) of the Pennsylvania Rules of Civil Procedure for District Judge (Pa. RC.P.D.J.). A true and correct copy of Defendants' Motion and Praecipe are attached hereto as Exhibit "A" and incorporated by reference herein. 7. Defendants' Motion to Strike Plaintiffs Complaint was improperly labeled as a Praecipe to Strike. 8. Said Praecipe was arbitrarily executed and cc:rtified by the Prothonotary of this Court on September 16, 2005, thereby purportedly striking Plaintiffs Complaint. 9. Defendants failed to file a Notice of Intent to Enter Judgment of Non Pros. 10. Defendants failed to enter a Judgment of Non Pros. II. The official notes of Pennsylvania Rule of Civil Procedure 237.1 state: "When a defendant appeals from a judgment entered in a magisterial district judge court, Pa.RC.P,M.DJ. 1004(b) authorizes the appellant to file a praecipe for a rule as of course upon the appellee to file a complaint or suffer entry of a judgment of non pros. The entry of the judgment of non pros is governed by Pa. R. C.P. 103 7(a) and is subject to this rule:' Pa. RC.P. 237.1 (emphasis added). 12. Pennsylvania Rule of Civil Procedure 1037(a) permits a defendant to enter a Judgment of Non Pros upon the failure ofa plaintiff to file a complaint. 13. The official note of Rule 1037(a) states: "See Rule 237. 1 (a)(2) which requires the praecipe for judgment of non pros to contain a certification of written notice of intent to file the praecipe." Pa.R.C.P. 1037(a). 14. The official note of Rule 1004 of the Rules of Civil Procedure of Magisterial District Judges also states in part: "The procedure upon failure to file a complaint pursuant to rule to do so entered under subdivision B will be governed by the Rules of Civil Procedure (Pa. RC.P. No. J037(a)):' IS. Defendants were required to file a 10 day Notice ofIntent to Enter Judgment of Non Pros prior to filing an Entry of Judgment of Non Pros. 16. Defendants failed to file the Notice ofIntent or the Entry of Judgment of Non Pros. 17. Instead, Defendants incorrectly filed a Motion to Strike Plaintiffs Complaint along with an attached Praecipe to Strike. 18. The Prothonotary did not have the authority to strike Plaintiffs Complaint when a judgment was never entered in Defendants' favor. 19. In order to strike Plaintiffs Complaint, Defendants were required to file a Notice ofIntent and an Entry of Judgment prior to Plaintiffs filing of a complaint 20. Plaintiff filed a Complaint prior to the filing of either of the aforementioned required pleadings, which were never filed by Defendants. 2 I. It is also believed, and therefore averred, that Defendants failed to file proof of service of their Notice of Appeal from the District Judge within ten (10) days as required under Rule 1005 of the Magisterial District Judge Ruiles of Civil Procedure. 22. Defendants failed to abide by the Pennsylvania and Cumberland County Rules of Civil Procedure, and as a result, have caused Plaintiff to incur significant costs in the preparation and filing of the within Motion. 23. Plaintiff now seeks to reinstate the Complaint filed on August 30, 2005, or in the alternative, to have Defendants' Motion to Strike Plaintiffs Complaint stricken. 24. Pursuant to Local Rule 208.3(a)(9) no concurrence was sought. WHEREFORE, Plaintiff Coldwell Banker Homesal,~ Services Group respectfully requests that this Honorable Court GRANT Plaintiffs Motion and REINSTATE Plaintiffs Complaint; or in the alternative, STRIKE Defendants' Motion to Strike Plaintiff s Complaint, and award such costs to Plaintiff associated with filing this Motion. Respectfully submitted, By: CALDWELL & KEARNS 12 Old~ih'&~ Attorney J.D. No. 27115 Douglas L Cassel, Esquire Attorney J.D. No. 92895 3631 North Front Street Harrisburg, P A 17110 (717) 232-7661 Dated: i/'J" 10) I I 05-598/9311 0 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document thisc21a day of Sfptell1bo1 ,2005, on the following by depositing a true and correct copy of the same in the U.s. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Daniel Pollock, Esquire 801 Sandbank Road #18 Mount Holly Springs, P A 17065 CALDWELL & KEARNS By: o ~: j:' r-> =' =' cJ' t/> r" -0 N -I """C ::J;:, <.f? Q, .-l :r::n Cl'r-- -am --tJI.-i (),l) ~~,~)\ :--::.\ 70 '< ;:- v:> l COLDWELL BANKER, HOMESALES SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA V. NO.2005-3386-CIVIL MICHAEL SCHWARTZ, AND MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW NOTICE TO PLEAD To: Coldwell Banker Home Services Group: You are hereby notified to file a written response to the enclosed Preliminary Objections within (20) Twenty days from service hereof or a judgment may be entered against you. /l~. evJf .... . Daniel oUock, Esq. Attorney for the Defendants 801 Sandbank Road #18 Mount Holly Springs, Pa. 17065 Pa. SuperId. 70315 E-Mail Dbigdanp @aoLcom. COLDWELL BANKER, HOMESALES SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYL VANIA V. NO. 2005-3386-CIVIL MICHAEL SCHWARTZ, AND MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW PRELIMINARY OBJECTIONS And now here comes the Defendants, Michael and Mary Lynn Schwartz, by and through their attorney, Daniel Pollock, Esq. to file these Preliminary Objections concerning the complaint with the court pursuant to Rule 1028 (1) and (3) of the Pennsylvania Rules of Civil Procedure. 1. IMPROPER SERVICE OF COMPLAINT 1. On or about September 1,2005 the defendant's received the Plaintiff's complaint Via certified Mail 2. Rule 1007(a) of the Rules for Civil Procedure for District Justice actions states that" the proceeding on appeal shall be conducted de novo in accordance with the rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas" 3. Rule 400(a) of the Rules of civil procedure states" that except as provided in subdivisions (b) and (c) and in rules 400r( covering Philadelphia County)" and 1930.4" ( Covering Domestic relations)" Original Process shall be served within the Commonwealth only by the sheriff. 4. Since service of Process was not made by the Sheriff, The service of the complaint should be voided. II. Failure to plead a sufficient cause of action 5. Plaintiff fails to plead a valid cause of action upon which a recovery could be granted Wherefore the Defendant Prays that the Plaintiffs complaint be dismissed. Date: September 16, 2005 Resp.ectfullY SUb~!f1r/ . 4l. 0 .,~( j .' ~tkv. V t;I ~ aniel Pollock, Esq. Counsel for the Defendants 801 Sandbank Road, #18 Mount Holly Springs, Pa. 17065 Pa. Super. rd. 70315 (717) 486-0030 E-Mail Dbigdanp@AOL.com AFFIDAVIT OF SERVICE On September 16, 2005 r, Daniel Pollock, Esq. did serve a copy of these Preliminary Objections by 1st class mail to the following party. James 1. Goldsmith, Esq. Law firm of Caldwell and Kearns 3631 North Front Street Harrisburg, Pa. 17110 Attorney for the Plaintiff Respectfully S.. ubnvr' e~, ., '.....JJi' ..' /rt/~) )IC' ; L-f;If:niel Pollock, Esq. 801 Sand Bank Road # 18 Mount Holly Springs, Pa. 17065 Pa. Super rd. 70315 (717) 486-0030 ~ 0 "'" ~ = C 0:::> :<' c.n -rJij:: U) ~~ !J)tI."1 f"'1 ~.-j-' -0 ZC -om ~...~': -3~ r:C' C1' k '< -0 -'fi ?c;. :x (::>5 z.o 7m ~c ~ d ~ .r:- ~ .s:- O< Q. COLDWELL BANKER, HOMESALES SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005-3386-CIVIL MICHAEL SCHWARTZ, AND MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW PRAECIPE TO STRIKE COMPLAINT FOR FAILURE TO COMPLY WITH RULE 1004(B) OF THE PENNSYL VANIA RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICE (PA. R.C.P. D.J.) AND NOW THIS ct - / ~ ~ DAY OF SEPTEMBER, 2005, After reviewing the attached PraecIpe io strl e the complaint in this matter the Plaintiffs complaint is striken and dismissed with prejudice. q - ( ~ -o( Date J. Prothonotary of Cumberlan County q~((;-6) ~ ~ Jlt COLDWELL BANKER, HOMESALES SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005-3386-CIVIL MICHAEL SCHWARTZ, AND MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW MOTION TO STRIKE PLAINTIFF'S COMPLAINT FOR FAILUTRE TO FOLLOW TIME CONSTRAINTS OF PA. R.C.P.D.J. RULE 1004(B) 1. On June 9, 2005 after the parties appeared before appeared before her, District justice Paula Correal entered a verdict for the Plaintiff's in this matter for $4,124.50 2, On July 5, 2005 the Defendants appealed the award to the Court of Common Pleas for Cumberland County 3. On the same day as the appeal the defendants served the Plaintiff at a principle place of business a copy of the Notice of Appeal, and a praecipe to file a complaint within 20 days after service or suffer entry of Non Pros. (Notice and Praecipe attached as exhibit (a)) 4. On August 30,2005 the Plaintiffs finally filed a complaint with the Court of Common Pleas of Cumberland County over 50 days after the Plaintiff's received the rule to file their complaint within 20 days. (Complaint attached as exhibit (b)) Wherefore the Plaintiffs Complaint must be stricken as a matter oflaw, as it was not timely filed as per the rule served upon the Plaintiff, and in fact was served over I month after the date it was to be filed. _September 16, 2005 Date :n:ys~,I ~iel POl~k~q, Counsel for the defendants Daniel Pollock, Esq. 801 Sandbank Road # 18 Mount Holly Springs, Pa. 17065 Pa. super. rd. 70315 ( 717) 486-0030 E-Mail Dbigdanp@AOL.com VERIFICATION r verify that the statements made in this Motion for praecipe to Strike complaint are true and correct to the best of my knowledge. I understand that false statements knowingly made herein are subject to the penalties of 18 Pa. C.S. 49 regarding1 unsworn falsifications to AuthOrities'.!;;J (J... f\. DATE AFFIDAVIT OF SERVICE On September 16, 2005 r, Daniel Pollock, Esq. did serve a copy of this Motion to Strike by 1st class mail to the following party. James 1. Goldsmith, Esq. Law firm of Caldwell and Kearns 3631 North Front Street Harrisburg, Pa. 17110 Attorney for the Plaintiff ~;:Ji7~ ~ 1:iimiel POII~k~~q. ~ 801 Sand Bank Road#18 Mount Holly Springs, Pa. 17065 Pa. Super rd. 70315 (717) 486-0030 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of ~ 00{ l"'^"- J. DISTRICT JUSTICE JUDGMENT ct COMMON PLEAS No. ;)~ 33~6 c. ',:/ ,., . I" ( Icl" NOTICE OF APPEAL "1"'\ C" "GO C" lj....l ,Y1 'y- .~ ~ ).. , Notice is given that the appellant has filed in the above Court 01 Common Pleas an appeal lrom the judgment rendered by the District Justice on the date and in the case referenced below. FROM NAME OF APPEL.LANT rr-1, /' (' ) . - /1 (;r1l.V. t\'>"\c f!'u,...\..t ADDRESS OF APPEI;J.ANT !te 1 /--(( (Ii. I~'{' DA;E QFJUOGMENl (p 0'1/0') OOCK ,. No. ~r ;'~l' ( "\ .......... ...~" MAG. GIST. NO. rf ( 0 '1 - ;2 CITY ( O...../i<;lR.. Of NAME OF D.J. PC1..l'/(.( I~ f (\Ul"lC' I STATE ZIP CODe I -7 L ~ (Def&lldantr ,,/I/.(,(,J. f ih'L.{ /i//:',l ((,.", <)d'l'(" SIGNATURE OF APPELLANT OR ATTORNEY OR .AGENT ./ ,-. i I / !'...,.r C V - {( (.( I '11 D<i 7.~ <'y , y' "r'_/j~ ' ( This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.C/ .D.J. No. 1001(6) in action R.C.P.D.J. No. 1008B. ./ This Notice of Appeal, when received by the Districl Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS, to the judgment for possession in this case. IN THE CASE OF (Plaintiff) '/cl\vf( i' ,.::~ (t ,\ L /~ (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONL Y when appellant was DEFENDANT (see Pa.R.CP.D.J. No. 1001(7) in action before Dislricl Justice. IF NOT USED, detach from copy of notice of appeal to be seNed upon app,:ilee. PRAECIPE: To Prothonotary Enter rule upon " I CLft L<.- l {I 13 (t IIL/ Nan19 of appeNee(s) appellee(s). to file a complaint in this appeal (Common Pieas No. ~OOS'" _ ':)'3 '(l, ) within twenty (20) days aller service 01 nule or suffer entry 01 judgment 01 non pros. .,'. :~A rf/ - ,/ ., . ~ I.. I. 'j d. \,,;.~' f r.-.. ..'/)l..~. /:. r .~ .. . Signature of aPpS lant or attorney or agent ( RULE: To (' ~ I,:/~/... u! /3 Ct. '''-1 (" Name of 8fJp9Hee(s) , appellee(s) ./ ,~," (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days aller the date 01 service 01 this rule upon you by personal service or by certified or registered mail. (2) If you do not.fiIe a t:O!l1Plaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. . !\. (3) The date ol'~ervic'" 0{ this 'njle if service was by mail is the date 01 the mailing. ,. .). -,.. ';" , Date: "1";\" 1.... . 200-;-';, ' -/3 f ,. 1 YOU MUST INCLUDE A COpy OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. ~ , " " ';,. , APPELLANT'S COpy Cf^~ AOPC 312-02 ,~ James 1. Goldsmith, Esquire Attorney J.D. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 717-232-7661 Attorney for Plaintiff COLDWELL BANKER HOMESALE SERVrCES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO.2005-3386-crVIL MrCHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defcndants crVIL ACTION LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. rF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFrCE SET FORTH BELOW. THIS OFFrCE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WrTH INFORMATION ABOUT AGENCrES THAT MAY OFFER LEGAL SERVrCES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIA TION 32 S. Bedford Street Carlisle, P A 17013 800-990-9108 TR~E COpy FROM RECORO '~T~~t.miJ,'JY Wl;;;:f?Gf. I h~f-lJ enl.l set my 1",06 ,'!'.;j ..,6 seal iJf sa~j C;;~J;t at lA"jh' 0 fl", ....u. ' ,..e, . a. "'.. ~a at James 1. Goldsmith, Esquire Attorney I.D. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg. PA 17110 717 -232-7661 Attorney for Plaintiff COLDWELL BANKER HOMESALE SERVrCES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 2005-3386-crvrL MrCHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants crVIL ACTION LAW COMPLAINT AND NOW comes Plaintiff by and thorough their counsel Caldwell & Kearns and files this Complaint and in support thereof avers as follows: I. Coldwell Banker Homesale Services Group is a Pennsylvania corporation and a licensed real estate broker with a principal place of business located at 3435 Market Street, Camp Hill, Cumberland County, Pennsylvania, 17011 2. Defendants Mary Lynn and Michael Schwartz, husband and wife, are adult individuals who reside at 1007 Acre Drive, Carlisle, Cumberland County, Pennsylvania, 17013 3. On November 12, 2004 Defendants entered into a written Listing Contract whereby they exclusively engaged Plaintiff to be and act as Defendants' exclusive real estate broker for the sale of real property located at 2854 Enola Road, 2 Carlisle, Cumberland County, Pennsylvania. A copy of the said Listing Contract is attached hereto and made a part hereof as Exhibit "A". 4. The said Listing Contract is an Exclusive Right to Sell agreement that provides in pertinent part: "7 A. Seller will pay Broker's Fee if Property, or any ownership interest in it, is sold or exchanged during the term of this Contract by Broker, Broker's salespersons, Seller, or by any other person or broker, at the listed price or any price acceptable to Seller." 5. During the pendency of the Listing Contract it was amended at the request of Defendants to the extent that listing of the property was "not to be placed in MLS, no publicity - not on market". The said Amendment further provides that "All other terms and conditions of the said Exclusive Right to Sell Agreement shall remain unchanged and in full force and effect." The said Amendment to Exclusive Right to Sell Agreement is attached hereto and made a part hereof as Exhibit "B" . 6. At no time was the Listing Contract terminated. 7. During the pendency of the Listing Contract, Defendants surreptitiously engaged a second real estate broker and, without notifying that broker of the pendency of the subject Listing Contract, sold their real property. 8. Upon the sale of the subject property, Defendants did not, contrary to the Listing Contract with Plaintiff, pay Plaintiff's fee. 9. Despite repeated demands, the fee owed by Defendants has not been paid. 3 10. Pursuant to the Listing Contract Defendants are obligated to pay 6% of the selling price of $239,000 plus a $195 transaction fee which comes to the total amount of $14,435 demand for which is hereby made. WHEREFORE Plaintiff demands judgment against Defendants in the amount of $14,435 plus costs of suit and interest. Date: ~l/o~'- 05.598192054 Respectfully submitted: L_ 4 VERlFICA TlON I verify that the averments in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating 10 unsworn falsification to authorities. Date: ~141{).5' - , By: Sh on A. Helsel, President Harrisburg Region Coldwell Banker Homesale Services Group 2 ..". d)~2,; ~i:f) ~(--' ~c~ 'j;"' c: -/ :2 r-> "'" '3', % 0-0 - C1' <;?, ~:n i" to -.:9,t? t)b ~,~ ..f't :r:. -f' qc':i b'" -\ 'il '..< -0 ::::l> r:? c.) 0:> IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL COVER SHEET COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff vs. NO.2005-3386-CIVIL MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants Plaintiffs Reply to Preliminary Objections : Caldwell & Kearns : Douglas 1. Cassel, Esquire : Attorney ID# 92895 : 3631 North Front Street : Harrisburg, P A 17110 : (717) 232-7661 dcassclCd'caldwellkearns.com COLDWELL BANKER HOMESALE SERvrCES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO.2005-3386-CIVIL MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION - LAW PLAINTIFF'S REPLY TO PRELIMINARY OBJECTIONS AND NOW, comes the Plaintiff, Coldwell Banker Homesale Services Group, by and through their attorneys, Caldwell & Kearns, and files the within Reply to Preliminary Objections; and in support thereof, avers as follows: IMPROPER SERVICE OF COMPLAINT 1. Admitted upon information and belief. 2. Admitted in part, denied in part. Admitted to the extent Pennsylvania Rule of Civil Procedure for Magisterial District Judges Rule 1007(a) is accurately stated. Denied to the extent that this paragraph contains a conclusion oflaw. 3. Admitted in part, denied in part. Admitted to the extent Pennsylvania Rule of Civil Procedure 400(a) is accurately stated. Denied to the extent that this paragraph contains a conclusion oflaw. By way of further answer, the Rules of Civil Procedure for Magisterial District Judges is explicit on this subject matter. Rule 1005(D) states in pertinent part: "The party filing a complaint under Rule 1004 shall forthwith serve it upon the opposite party in the appeal by leaving a copy for or mailing a copy to him at his address as shown in the magisterial district judge records mentioned in subdivision A ofthis rule. . . ." Therefore, Defendants' argument that Plaintiffs Complaint must be served by a sheriff is without merit and clearly contrary to the Rules of Civil Procedure. 4. Denied. As discussed in paragraph three (3), Defendants' Preliminary Objection is entirely without merit. WHEREFORE, Plaintiff Coldwell Banker Homesale Services Group respectfully requests that this Honorable Court DENY Defendants' Preliminary Objections and grant Plaintiff such relief as requested in Plaintiffs Complaint and any other costs this Court deems necessary and appropriate. FAILURE TO PLEAD A SUFFICIENT CAUSE OF ACTION 5. Denied. WHEREFORE, Plaintiff Coldwell Banker Homesale Services Group respectfully requests that this Honorable Court DENY Defendants' Preliminary Objections and grant Plaintiff such relief as requested in Plaintiffs Complaint and any other costs this Court deems necessary and appropriate. Respectfully submitted, CALDWELL & KEARNS By: Jam . G dsmitli, Esquire Attorney 1. . No. 27115 Douglas 1. Cassel, Esquire Attorney LD. No. 92895 3631 North Front Street Harrisburg, PAl 71 JO (717) 232-7661 Dated: '1/'J~ /u{ 05-598193125 COLDWELL BANKER, HOMESALES SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR ctJMBERLAND COUNTY, PENNSYL VANIA V. NO.2005-3386-CIVIL MICHAEL SCHWARTZ, ANn MARY L VNN SCHWARTZ Defendants CIVIL ACTION-LAW PRAECIPE TO STRIKE COMPLAINT FOR FAILURE TO COMPLY WITH RULE 1004(B) OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICE (PA. R.c.P. D.J.) AND NOW THIS ~ ~ I (p - 0 f DAY OF SEPTEMBER, 2005, After revicwing the attached Praecipc to strike the complaint in this mattcr the Plaintiff's complaint is striken and dismissed with prejudice. q - ((rO) Date ~ Prot onotary of Cumberland County .'Of ,c ""r ",,_ ,,,~,- f r,vc \",~JIC'" 1( ~';"oi'llt,A: ~~~:("'"o"C)r~ . _,r^_ ",~",~~_~~""",'-'ft..J \i1 Tt~~UP1Gny ';;r:!(JfifJ{;f, I ti8re un~Q s(t IrV l~i:~';-, and t~ seal of saki CWf1 "I Carlisle;;" . rho .' .' ..... , _.d"Y'1l .!:: ;;?;flOr EXHIBIT I A COLDWELL BANKER, HOMESALES SERVICES GROUP Plaintiff IN THE COlJRT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA '" ~ ~ V. NO. 2005-3386-CIVIL l~ . ~;; :, MICHAEL SCHWARTZ, AND MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW '''<: c' ~::c.. 4("-: ::::J 04. :J: --,'ci )>. c_ r'0 2-. .. MOTION TO STRIKE PLAINTIFF'S COMPLAINT FOR FAILUTRE=-.tO ;::~ FOLLOW TIME CONSTRAINTS OF PA. R.C.P.D.J. RULE 1004(B) 1. On JlU1e 9, 2005 after the parties appeared before appeared before her, District justice Paula Correal entered a verdict for thc Plaintiffs in this matter for $4, I 24.50 2. On July 5, 2005 the Defendants appealed the award to the Court of Common Pleas for Cumberland County 3. On the same day as the appeal the defendiU1ts served the Plaintiff at a principle place of business a copy of the Notice of Appeal, and a praecipe to file a complaint within 20 days after service or suffer entry of Non Pros. (Notice and Praecipe attached as exhibit (a)) 4. On August 30, 2005 the Plaintiffs finally filed a complaint with the Court of Common Pleas of Cumberland County over 50 days after the Plaintiffs received the rule to file their complaint within 20 days. (Complaint attached as exhibit (b)) Wherefore the Plaintiffs Complaint must be stricken as a matter oflaw, as it was not timely filed as per the rule served upon the Plaintiff, and in fact was served over 1 month after the date it was to be filed. September 16, 2005 Date ~,ectfy)\SUb~i~,~~ " C c:/ e,,~ i::-.J'W . Daniel ~llo\%, Esq, Counsel for the defendants U? ", "'t1 o " --l I:!J m~ -crr: .~DCJ ~~~ (:i ~ (2(1 ~5nl .:;:-:' '~J' ;::,: Daniel Pollock, Esq. 80 I Sandbank Road # 18 Mount Holly Springs, Pa. 17065 Pa. super. Id. 70315 ( 717) 486-0030 E-Mail Dbigdanp@AOL.com VERIFICATION 1 vcrify that the statcments made in this Motion for praccipe to Strike complaint are true and corrcct to thc best of my knowledge. 1 understand that false statements knowingly madc herein are subjcct to thc penalties of 18 Pa. C.S. 4904 regarding unsworn falsifications to Authorities. ../- ,7/ Y;"-' !t~. f4.--:;- '- e:.~ r!.7 C'--/ J... ~s~ Daniel Pollock, Esq. 1'/;(;4) 5_ J5ATE AFFIDA VlT OF SERVICE On September 16,2005 r, Daniel Pollock, Esq. did serve a copy of this Motion to Strike by 151 class mail to the following party. James 1. Goldsmith, Esq. Law firm of Caldwell and Kearns 3631 NOlih Front Street Harrisburg, Pa. 17 I 10 Attorney for the Plaintiff Respectfully Submitted, CZ1~~. /1 ).;. / ,~ f '. -- I~//-' /,c't.c//cJt/..}. ) __-c? -if ~ Daniel Pollock, Esq. 80 I Sand Bank Road # 18 Mount Holly Springs, Pa. 17065 Pa. Super1d. 70315 (717) 486-0030 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District. County Of ~0vt(/,MJ. NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT t COMMON PLEAS No. J.~ 33~(. C" (~{'l \'] ly.( I DY L NOTICE OF APPEAL r. ~ )' ;lGo"- Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NAME OF APPELlANT f'i. ( " - r !JL....'l.,'-...t. f \l '.--.,(. ! ;ij' '- \.., ADDRESS OF APPE'fANT I {6 I I, l l...-. DAJE OF JUDGMEI';IT IN THE CASE OF (Plain/iff) (p C 'f 1(. ') '/(J"j{ ii /'(, DOCK T No C \ .....) C. ' '1u.,. MAG.DIS1 NO. . -< (./ ., r:J--.::. () - :~ CnY (C<.r/'<'lJi. Ci NAME OF D.J. j) "U..l< lu I~ /') ( CYrie, I I ZIP CODE "'7 CI..' / )( ': 'l....t:, ,.L.... STATE /) il (Defendant)' V$ l"i /, <. b..t. I a..,'''' ,( SIGNATURE OF APPELLANT OR ATTORNEY OR AGENT '1 '.. ( j,j(!; t. .'. / C \I - {, ( (( I '1\ .. [') "\.... .. 7%-,../ / i l.' ,',' -.r /} r'~,,",. ,.~/lc '., ;;. n appellant was Claimant (see Pa. R.0' .D.J. No_ ./ 1001(6) in action This block will be signed ONLY when this notation is requlred under Pa. RC.P.DJ. No. 1008B. This Notice of Appeal, when received by the District Justice, wlll operate as a SUPERSEDEAS to the judgment for possession in this case. before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days aNe, filing the NOTICE ot APPEAL. Signature of Prothonorary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONL Y when appellant was DEFENDANT (see Pa.R.CPD.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECtPE: To Prothonotary Enter rule upon ('t{tlu.. ,'i '-:i {t t -', f / ~ . i'-...( . Name of appel/ee(s} appellee(s), to file a complaint in this appeal (Common Pleas No. 900'5'"'- ') 1 ~ ) within twenty (20) days after service of rule or suffer enby of judgment of non pros. ...,~. . / //; /// ,/ c C'_/} f;/ ;L., I " !,~..-- // I" ' (/ Sigliature of appellant or attorney or agent RULE: To (' e I,/;.~ (! / () Q.. ,I.., ,- Name of appeUee(s) . appeilee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of servioe of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a cOl11plaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) Date: "J;\\I ")' The' dat~ of.s.erv!te'o{ thi~'l\1le if service was by mail is the date of the mailing. ~ . , - . -. ,200;; ///1 /- ;; ~Q.., r) .J;; /, , , YOU MUST INCLUDE A COpy OF THE NOTICE OF JUDGMENTTTRANSCRIPT FORM WITH THIS NOTICE OF APPEAl. " , " . APPELLANT'S COPY {I~~ Aope 312-02 James L. Goldsmith, Esquire Attorney 1.D. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, P A 17110 717-232-7661 Attorney for Plaintiff COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA vs. NO. 2005-3386-CIVIL MICHAEL SCHWARTZ and MARY LYNN SCHW ARTZ, Defcndants CIVIL ACTION LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFrCE SET FORTH BELOW. THIS OFFrCE CAN PROVIDE YOU WITH INFORMATION ABOUT HrRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER. THIS OFFrCE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIA TION 32 S. Bedford Street Carlisle, P A 17013 800-990-9108 T~~E COpy FROM RECCRn In T..c'.'1"'n'l'''~ " . . . '~...:i.~;,i..h;j "~-i(];rrth. I (::-f~~ p_"'th r- ~f "r;:J '..~ ";{ ::;'F.-.j 'Ci.-, - ..~"...., ',J ",,'_ '"~_ ""- ._-p,.'., ':'>~ .!j l,'f:!-~'-""" ". d ~;.6 x& ~ ,~~~_! V:~i~t Jt '::~:-l'h'!o Q: r" . ,d. .. ,,~, ''''''. ; a 1;~.1 -~J' Cl '. c1:'Ll~ci) James L. Goldsmith. Esquire Attorney LD. No. 27115 CALDWELL & KEARNS 363] North Front Strect Harrisburg. P A 17110 7] 7-232-7661 Attorney for Plaintiff COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY , PENNSYLVANIA vs. NO.2005-3386-CIVIL MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIvrL ACTrON LA W COMPLAINT AND NOW comes Plaintiff by and thorough their counsel Caldwell & Kearns and files this Complaint and in support thereof avers as follows: I. Coldwell Banker Homesale Services Group is a Pennsylvania corporation and a licensed real estate broker with a principal place of business located at 3435 Market Street, Camp Hill. Cumberland County, Pennsylvania, 17011 2. Defendants Mary Lynn and Michael Schwartz, husband and wife, are adult individuals who reside at ] 007 Acre Drive, Carlisle, Cumberland County. Pennsylvania, 170 I 3 3. On November 12, 2004 Defendants entered into a written Listing Contract whereby they exclusively engaged Plaintiff to be and act as Defendants' exclusive real estate broker for the sale of real property located at 2854 EnoJa Road, 2 ,. Carlisle, Cumberland County, Pennsylvania. A copy of the said Listing Contract is attached hereto and made a part hereof as Exhibit "A". 4. The said Listing Contract is an Exclusive Right to Sell agreement that provides in pertinent part: "7 A. Seller will pay Broker's Fee if Property, or any ownership interest in it, is sold or exchanged during the term of this Contract by Broker, Broker's salespersons, Seller, or by any other person or broker, at the listed price or any price acceptable to Seller." 5. During the pendency of the Listing Contract it was amended at the request of Defendants to the extent that listing of the property was "not to be placed in MLS, no publicity - not on market". The said Amendment further provides that "All other terms and conditions of the said Exclusive Right to Sell Agreement shall remain unchanged and in full force and effect." The said Amendment to Exclusive Right to Sell Agreement is attached hereto and made a part hereof as Exhibit "B". 6. At no time was the Listing Contract tenninated. 7. During the pendency of the Listing Contract, Defendants surreptitiously engaged a second real estate broker and, without notifying that broker of the pendency of the subject Listing Contract, sold their real property. 8. Upon the sale of the subject property, Defendants did not, contrary to the Listing Contract with Plaintiff, pay Plaintiff's fee. 9. Despite repeated demands, the fee owed by Defendants has not been paid. 3 10. Pursuant to the Listing Contract Defendants are obligated to pay 6% of the selling price of $239,000 plus a $] 95 transaction fee which comes to the total amount of $14,435 demand for which is hereby made. WHEREFORE Plaintiff demands judgment against Defendants in the amount of $14,435 plus costs of suit and interest. Respectfully submitted: , Date: ~l/oS.-- l_ ~.- ..~//' -~ 05-508/92054 4 VERIFICA nON I verify that the averments in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: ~(" /0S- , By: Sh on A. Helsel, President Harrisburg Region Coldwell Banker Homesale Services Group CERTIFICATE OF SERVICE r hereby certify that I have served a copy of the within document thisJ& day of ~t{lrn~ ,2005, on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Daniel Pollock, Esquire 801 Sandbank Road #18 Mount Holly Springs, P A 17065 CALDWELL & KEARNS By: r",) ~:"--; (;/' <r: ~~,~ ' j.) _J ~ :1" :!l rts; -='0'-7 \~,?,\?; -;, {~~:~ . "~~ ~'S ,-< (ef} ,,::::- w- COLDWELL BANKER HOMESALE SERvrCES GROUP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ : NO. 2005 - 3386 ClvrL TERM ORDER OF COURT AND NOW, this 5TH day of OCTOBER, 2005, upon consideration of the attached petition it is hereby ordered that; (1) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within dO days of this date; (3) the petition shall be decided under Pa. R.C.P. No. 206.7; (4) depositions shall be completed within sixty (60) days ofthis date; (5) either party may list the matter for argument thereafter. (6) notice ofthe entry of this order shall be provided to all parties by the petitioner. Edward E. Guido, J. James 1. Goldsmith, Esquire Douglas 1. Cassel, Esquire . .~.~ Daniel Pollock, Esquire ~ ' j(J-/ll' or AH<):.'ic"', 'II] :! llPJ 9- .LJO SGOZ i)::\jLl.,!j~Ci-Li_C:c>I 3!-U :10 ]CH:~I~O-(Tr1!J - < COLDWELL BANKER HOMESALE SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYL VANIA NO, 2005-3386 V. MICHAEL SCHWARTZ, and MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW ANSWER TO PLAINTIFF'S MOTION TO REINSTATE COMPLAINT I. Admitted 2. Admitted 3. Admitted 4. Admitted 5. Admitted 6. Admitted in part, did not receive the copy of motion and praecipe along with the Plaintiffs motion for reinstatement. 7. Denied, To strike a complaint after a rule was issued for the Plaintiffs to enter a complaint within a certain time or suffer non-pros should be done by Praecipe, not by motion. 8. Denied. The praecipe was executed after the prothonotary's office checked with the court administrator and checked its records and found that the Plaintiff did not filc its complaint in accordance with Pa. R.C.P.DJ. Rule J004( B) nor in accordance with the rule the Prothonotary had served upon the Plaintiffs to have the complaint filed within 20 days of service. 9. Admitted in Part Denied in Part. Plaintiff was serverd with a praecipe to file a complaint wjthin 20 days or suffer Non pros by the Prothonotary on July 6, 2005 Rule 237.I(b) states that thc 10 day notice does not apply to ajudgemcnt entcred upon praecipe pursuant to an order of court, which the rule of the Prothonotary which ordered the Plaintiff to file the complaint within 20 days or suffer Non- Pros is according to Essinger v. Sun Refining, 549 A2d. 660 (P A, 1988) 10. Denied. Judgment of non pros is done by filing the motion to strike. 11. Admitted, by further note Defendant's served the Plaintiff with such rule when they served them with the notice of the appeal. 12.Admitted 13. Admitted in Part, the Case of Essinger V. Sun Refining 549 A2d, 660 states that there is no need for an additional 10 day notice when the plaintiff had been served with a rule to file within 20 days or suffer non Pros. 14. denied 15 denied, see Essinger v, Sun Refining Id. 16. not required to under Essinger, Id. 17. Defendant's correctly filed a motion to strike for failure to conform to rule. 18. The prothonotary has the authority to strike matters filed with it that do not conforrn to rules of court. 19. Denied, the court does not have the power to extend filing deadlines imposed by the legislature GOLLDBERG, V, GOLDBERG, 461 A2D.1307 (PA. SUPER 1983) Statutory Provisions for Appeal must be strictly complied with. 20. Admitted 21. denied, strict proof demanded 22. Denied as to the failure to abide by the Pennsylvania rules of Civil Procedure, Denied as to the failure to follow the Cumberland County rules of civil procedure because notice is not required for motions to dismiss, or preliminarily object based on matters not dealing with the facts of the case, Denied as to the Plaintiff having to incur significant costs to prepare or file this motion, In the alternative if the Defendant's did fail to follow the requisite local rules, the result is harmless error because the Plaintiff's failed to follow the rule to file which was issued and served upon the Plaintiffs on July 5, 2006 which would allow its complaint to be stricken for failure to follow the rule to file any time after July 25, 2005 23. Plaintiffs may seek to have their complaint reinstated but that should be denied due to their failure to file there complaint in a timely manner pursuant to the rule issued upon them. Defendant's motion to strike Plaintiffs complaint should be allow to stand because the Plaintiff's failed to file their complaint in a timely manner as ordered to by rule ofthe Prothonotary issued and served upon the Plaintiff on July 5, 2005. 24. Because the motion and praecipe dealt with preliminary matters of law and not with the admission of facts or witnesses, no concurrence was necessary. In the alternative if concurrence should have been sought the result was harmless error because the Plaintiff's complaint should have been and was dismissed as a matter oflaw for failure to follow the timelines laid out by Pa. R.C.P.DJ. 1004 and the Prothonotary's rule to file of July 5, 2005. Wherefore the Defendant's Pray that the Plaintiffs motion to reinstate their complllint be denied as well as their attempt to strike the Defendant's motion to strike ,'~ir complaint, and that they be assessed all costs and attorney fees associll~~d with the pursuit and defense oftheir motion(s) 4""'\" . ~ P~OCk, Esq. Pa. Super. rd. 70315 801 Sandbank Road, #18 Mount Holly Springs, Pa. 17065 (717) 486-0030 E-Mail Dbigdanp..I\i\OL.com Attorney for the Defendants Michael and Mary Lynn Schwartz Dated: October 25, 2005 AFFIDAVIT OF SERVICE On October 25, 2005 I, Daniel Pollock, Esq. did serve a copy ofthis Answer to reinstate complaint by 1 sI class mail to the following party. The Law firm of Caldwell and Kearns Attn. Douglass 1. Cassel, Esq. Attn. James L. Goldsmith, Esq. 363 I North Front Street Harrisburg, Pa. 17110 Respectfully Submitted, 4d.@;: 801 Sand Bank Road # 18 Mount Holly Springs, Pa. 17065 Pa. Superld. 70315 (717) 486-0030 .-' " c; : f>' C'_ COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff rN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.2005-3386-CIVIL v. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION - LAW MOTION TO MAKE RULE ABSOLUTE AND NOW, comes the Plaintiff, Coldwell Banker Homesale Services Group, by and through their attorneys, Caldwell & Kearns, and files the within Motion to Make Rule Absolute; and in support thereof, avers as follows: I. On or about September 27,2005, PlaintitTColdwell Banker Homesale Services Group, ("Plaintiff'), filed a Motion to Reinstate Complaint or in the Alternative Motion to Strike Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint. 2. On or about October 5, 2005, this Honorable Court issued a Rule upon Defendants Michael and Mary Lynn Schwartz, ("Defendants"), to show cause why Plaintiffs Complaint should not be Reinstated, or in the alternative, Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint should not be stricken. A true and correct copy of the Rule to Show Cause is attached hereto as Exhibit "A. .. 3. The Rule was returnable within twenty (20) days from the date of the Order, October 5, 2005. 4. Defendants have not filed an objection, or any response to this COUli's Rule to Show Cause. 5. It is respectfully requested that this Honorable Court make the Rule Absolute and enter an Order to Reinstate Plaintiffs Complaint, or in the alternative, Strike Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint. WHEREFORE, for the above-stated reasons, it is respectfully requested that this Honorable Court enter an Order to RErNSTATE Plaintiffs Complaint, or in the alternative, STRrKE Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint. Respectfully submitted: CALDWELL & KEARNS By: Dated: J{ If /0 ) I , 05-598/94478 COLDWELL BANKER HOMESALE SERvrCES GROUP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ : NO. 2005 - 3386 crvrL TERM ORDER OF COURT AND NOW, this 5TH day of OCTOBER, 2005, upon consideration of the attached petition it is hereby ordered that: (1) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within Jo days of this date; (3) the petition shall be decided under Pa. R.c.P. No. 206.7; (4) depositions shall be completed within sixty (60) days of this date; (5) either party may list the matter for argument thereafter. (6) notice of the entry of this order shaH be provided to all parties by the petitioner. ,...----.... ?Y"the Court, \ l_~,. Edward E. Guido, J. James 1. Goldsmith, Esquire Douglas 1. Cassel, Esquire I A TF..r ,-..,., , ., "~""'''''Co,. . -~':.'.,,:: ~...~Jt 4. C \ I..:...",b' fit;)i... r., .. T...ti/1lOl1Y \IIM;'~f. IIWl<; iir.lO SIlt my'" lid tll8. ~ III ;;aid C~.E COiItsII. PI.. , . ~ I:-;:~ ~(p~~~ ):~ PTotho f Daniel Pollock, Esquire EXHIBIT CERTIFICATE OF SERVICE AND NOW, this 1st day of November 2005, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Daniel Pollock, Esquire 801 Sandbank Road #18 Mount Holly Springs, P A 17065 CALDWELL & KEARNS ~7 ~//~ . By . /!/t"t~~ ....., ~ ,-) = c> C C,,,n -.... ~ :1: .." ~ rill I =,~~~ N 1-.- -'':J -U () ~nl: r:::' '. I 'j.- .~. 01 ";:, ..-:~ :< .r.'" r:!. JO COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff iTj"-.;' (' ;::,- 'VH~D I !'. ,J' "'.,J J.::':..... 1 .L.....; \ QVNOV 0 3)?2DD5 l~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005-3386-crvrL v. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants crVIL ACTION - LAW ORDER AND NOW, this '1 ~ day of t.\ ~ , 2005, upon consideration of Plaintiff Coldwell Banker Homesale Services Group's Motion to Make Rule Absolute, it is hereby ORDERED that: (1) Plaintiff's Complaint is hereby REINSTATED, and Defendants are directed to file responsive pleadings within twenty (20) days from the date of this Order; OR (2) Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint is hereby STRICKEN, and Defendants are directed to file responsive pleadings within twenty (20) days from the date of this Order. /.J/ ~ri v~l ( ~ ~ 'Pt ~ V:I\\//I~},S;'~:"JJd , I' Ir ....- ..,....,,,'"' /U.I\L :~",': "::~'>'\~ kJ +JE: :8 jl~ 8- AON SOUZ A"tI'.'I.'}'''I'',:: ,:,"..1 :JH1' ~o v.,.'., . ~'....I ......-.....,_ "",I .:J =,:JI"IO {j:J1H COLDWELL BANKER HOMES ALE SERVICES GROUP, Plaintiff TN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-3386-CIVIL v. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION - LAW MOTION TO MAKE RULE ABSOLUTE AND NOW, comes the Plaintiff, Coldwell Banker Homesale Services Group, by and through their attorneys, Caldwell & Kearns, and files the within Motion to Make Rule Absolute; and in support thereof, avers as follows: 1. On or about September 27,2005, Plaintiff Coldwell Banker Homesale Services Group, ("Plaintiff'), filed a Motion to Reinstate Complaint or in the Alternative Motion to Strike Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint. 2. On or about October 5, 2005, this Honorable Court issued a Rule upon Defendants Michael and Mary Lynn Schwartz, ("Defendants"), to show cause why Plaintiffs Complaint should not be Reinstated, or in the alternative, Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint should not be stricken. A true and correct copy of the Rule to Show Cause is attached hereto as Exhibit "A." 3. The Rule was returnable within twenty (20) days from the date of the Order, October 5, 2005. 4. Defendants have not filed an objcction, or any response to this Court's Rule to Show Cause. 5. It is respectfully requested that this Honorable Court make the Rule Absolute and enter an Order to Reinstate Plaintiffs Complaint, or in the alternative, Strike Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint. WHEREFORE, for the above-stated reasons, it is respectfully requested that this Honorable Court enter an Order to REINSTATE Plaintiffs Complaint, or in the alternative, STRIKE Defendants' Praecipe and/or Motion to Strike Plaintiffs Complaint. Respectfully submitted: CALDWELL & KEARNS By: Dated: If//Or; I I 05-598/94478 COLDWELL BANKER HOMESALE SERVICES GROUP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ : NO. 2005 - 3386 CIvrL TERM ORDER OF COURT AND NOW, this 5TH day of OCTOBER, 2005, upon consideration of the attached petition it is hereby ordered that: (I) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within Jo days of this date; (3) the petition shall be decided under Pa. R.C.P. No. 206.7; (4) depositions shall be completed within sixty (60) days of this date; (5) either party may list the matter for argument thereafter. (6) notice of the entry of this order shall be provided to all parties by the petitioner. Edward E. Guido, J. James 1. Goldsmith, Esquire Douglas 1. Cassel, Esquire I A T '/ ~~r- :-<\..- r.')- '" /" .'. '( i:l<7'"c.,.,n.-. f,:-\-.-"i~: ....~). , . 'I "",,,...bl n... ~tr.., ~ T..tlmony wftsi'OlOf, : 11ll1t; UlllO StIt my"" 8ld tile '!" 1IC 5ild ~00lt.!l CalIs1e,. PI..! ! ~ I;ff~ ~(fl~~ )'! Daniel Pollock, Esquire EXHIBIT CERTIFICATE OF SERVICE AND NOW, this 1 st day of November 2005, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Daniel Pollock, Esquire 801 Sandbank Road # 18 Mount Holly Springs, P A 17065 CALDWELL & KEARNS ~/A By 7 /I/.(/,/J~ Cl r-> ~ = C = .. <.." - X::n ,- C> -". (\1 r:: ___In I c'j'7 N <~3 () " ,,""-T, -c> ,<,,-..:} :~J ~ ;..0 .;-.::-rn 1') l..) .,\ ~. <..n "'b .r;"' :< . COLDWELL BANKER HOMESALE SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY,PENNSYLVANIA NO. 2005-3386 v. MICHAEL SCHWARTZ, and MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW MOTION TO STRIKE OFF RULE TO MAKE ABSOLUTE l. On November 7, 2005 this court granted the Plaintiffs motion to make rule absolute restoring their complaint which was stricken by the Prothonotary's office on September 16, 2005 2. On October 5, 2005, This court directed the Defendants to answer a rule within 20 days as to why the Plaintiffs rule should not be granted. (Copy attached as exhibit A) 3. On October 25,2005 the Defendants filed the answer to the court's rule. ( copy attached as exhibit B) 4. On November 1, 2005 the Plaintiffs having not received their copy of Defendant's Answer in spite of it being filed and mailed filed a motion to make rule absolute. 5. Plaintiff had not contacted Defendants prior to filing the rule to make absolute as requested by local rules nor had they contacted the Prothonotary's office to see if the answer to the rule had been filed 6 Had the Plaintiffs contacted either of the parties mentioned in paragraph 6, the Plaintiffs would have found out that the Defendant's were in compliance with the rule of October 5, 2005. 7. On November 11, 2005 Counsel for the Defendant sought concurrence of Plaintiffs Counsel, as of yet, no answer has been received Wherefore the Defendants Pray that the court strike off the Rule of November 7, 2005 as improvidently granted and return to the mechanics of the rule issued on October 5,2005 . Daniel Pollock, Esq. 801 Sandbank Road, # 18 Mount Holly Springs, Pa. 17065 Pa. Super. TD. 70315 ( 717) 486-0030 E-Mail-Dbigdanp@Aol.com COLDWELL BANKER : IN THE COURT OF COMMON PLEAS OF HOMESALE SERVICES GROUP : CUMBERLAND COUNTY, PENNSYLVANIA v. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ : NO. 2005 - 3386 ClvrL TERM ORDER OF COURT AND NOW, this 5TH day of OCTOBER, 2005, upon consideration of the attached petition it is hereby ordered that; (I) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within dO days of this date; (3) the petition shall be decided under Pa. R.C.P. No. 206.7; (4) depositions shall be completed within sixty (60) days of this date; (5) either party may list the matter for argument thereafter. (6) notice of the entry of this order shall be provided to all parties by the petitioner, Edward E. Guido, 1. James 1. Goldsmith, Esquire Douglas 1. Cassel, Esquire ((fy/'. b,; A) 'W'f\':'lll,-~1""t'(- -'-0;;1/ il'~ -"~~Vl rr"'Vt'O""';"I1""\!)IIJ lIlJ'~~~_ :~~ ~":N";...' V ."~'...'J-l\7t) n~}.........~'t!-...lt Ifllliii.tioOOilY~oof, t Iii" iJi~ ~ mjf it(:;w ~ 1M _ III smo ~CafMfJ, h. 6 ~h. (?;J.~ f) ~~~~.~ ~t~ ProttIo ., Daniel Pollock, Esquire . COLDWELL BANKER HOMESALE SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-3386 v. MICHAEL SCHWARTZ, and MARY LYNN SCHWARTZ Defendants CML ACTION-LAW ANSWER TO PLAINTIFF'S MOTION TO REINSTATE COMPLAINT L Admitted 2. Admitted ~) "'.') , , ,.'....j 3. Admitted r> < CJ '" -l :.>n 1.--' -:1:': 4. Admitted ~. ,J (,., ,o} 5. Admitted N , -;( ) ',il ,... ~ w ~ 6. Admitted in part, did not receive the copy of motion and praecipe along with the:"'. Plaintiff's motion for reinstatement. ( -, .' 7. Denied, To strike a complaint after a rule was issued for the Plaintiffs to enter a complaint within a certain time or suffer non-pros should be done by Praecipe, not by motion. 8. Denied. The praecipe was executed after the prothonotary's office checked with the court administrator and checked its records and found that the Plaintiff did not file its complaint in accordance with Pa. R.C.P.DJ. Rule 1004( B) nor in accordance with the rule the Prothonotary had served upon the Plaintiff's to have the complaint filed within 20 days of service. 9. Admitted in Part Denied in Part. Plaintiff was serverd with a praecipe to file a complaint within 20 days or suffer Non pros by the Prothonotary on July 6, 2005 Rule 237J(b) states that the 10 day notice does not apply to a judgement entered upon praecipe pursuant to an order of court, which the rule of the Prothonotary which ordered the Plaintiff to file the complaint within 20 days or suffer Non- Pros is according to Essinger v. Sun Refining, 549 A2d. 660 (P A. 1988) (B )(ti..tG') ,"ct!i.' " '~-" (/"."('" Ci"." ,-.,.~' f' " ~... r:!',,;:"l tfl~ ~':.II;.:I! ,I ,1\,~~JU,:.j ') ,,~_'v~" 1'I..p 'ir'-, . '-,.' ~_" ,,"'..~ :t.'~ {I ,:~'-... -r1"<;J!l,1.: t~I);~~! Ira ij (::-~lf';ql-,.!~?1~ ,-j J," ". ". ","<.) ~. , "Ii . '; " (""\ ~ *",~~_c,..-.~...,. r:;. "';j ~~ ~~u rig~ ~t>I:;" ,:....:..";;\1 "-~t 1L.-L.,tlOl1'-c.>. .-' l:t::; 10. Denied. Judgment of non pros is done by filing the motion to strike. I L Admitted, by further note Defendant's served the Plaintiff with such rule when they served them with the notice of the appeal. 12.Admitted 13. Admitted in Part, the Case ofEssinger V. Sun Refining 549 A2d. 660 states that there is no need for an additional 10 day notice when the plaintiff had been served with a rule to fIle within 20 days or suffer non Pros. 14. denied 15 denied, see Essinger v. Sun Refining lei. 16. not required to under Essinger, Id. 17. Defendant's correctly filed a motion to strike for failure to conform to rule. 18. The prothonotary has the authority to strike matters filed with it that do not conform to rules of court. 19. Denied, the court does not have the power to extend filing deadlines imposed by the legislature GOLLDBERG, V. GOLDBERG, 461 A2D. 1307 (PA. SUPER 1983) Statutory Provisions for Appeal must be strictly complied with. 20. Admitted 21. denied, strict proof demanded 22. Denied as to the failure to abide by the Pennsylvania rules of Civil Procedure, Denied as to the failure to follow the Cumberland County rules of civil procedure because notice is not required for motions to dismiss, or preliminarily object based on matters not dealing with the facts of the case. Denied as to the Plaintiff having to incur significant costs to prepare or file this motion, In the alternative if the Defendant's did fail to follow the requisite loc~ rules, the result is hannless error because the Plaintiff's failed to follow the rule to file which was issued and served upon the Plaintiffs on July 5, 2006 which would allow its complaint to be stricken for failure to follow the rule to file any time after July 25, 2005 23. Plaintiffs may seek to have their complaint reinstated but that should be denied due to their failure to file there complaint in a timely manner pursuant to the rule issued upon them. Defendant's motion to strike Plaintiff's complaint should be allow to stand because the Plaintiff's failed to file their complaint in a timely manner as ordered to by rule of the Prothonotary issued and served upon the Plaintiff on July 5, 2005. 24. Because the motion and praecipe dealt with preliminary matters of law and not with the admission of facts or witnesses, no concurrence was necessary. In the alternative if concurrence should have been sought the result was harmless error because the Plaintiff's complaint should have been and was dismissed as a matter of Jaw for failure to follow the timelines laid out by Pa. R.C.P.DJ. 1004 and the Prothonotary's rule to file of July 5, 2005. Wherefore the Defendant's Pray that the Plaintiff's motion to reinstate their complaint be denied as well as their attempt to strike the Defendant's motion to strike their eomplaint, and that they be assessed all eosts and attorney fees ~oeiated with the pursuit and defense of their motion(s) ~@ Pa. Super. Id. 70315 801 Sandbank. Road, #18 Mount Holly Springs, Pa. 17065 (717) 486-0030 E-Mail Dbi!!dano.Q\AOL.com Attorney for the Defendants Michael and Mary Lynn Schwartz ~: October 25, 2005 AFFIDAVIT OF SERVICE On October 25, 2005 I, Daniel Pollock, Esq. did serve a copy of this Answer to reinstate complaint by 151 class mail to the following party. The Law firm ofCaldwelJ and Kearns Attn. Douglass L. Cassel, Esq. Attn. James 1. Goldsmith, Esq. 3631 North Front Street Harrisburg, Pa. 1711 0 47:::;~ Daniel Pollock, Esq. 801 Sand Bank Road #18 Mount Holly Springs, Pa. 17065 Pa. Super rd. 70315 (717) 486-0030 AFFIDA VIT OF SERVICE On November 15, 2005 r, Daniel Pollock, Esq. did serve a copy of this Motion by I" class mail to the following party. Law Firm of Caldwell and Kearns 3631 North Front Street Harrisburg, Pa. 17110 Attn.: James 1. Goldsmith, Esq. Douglass L. Cassel, Esq. Respectfully Submitted, ~J b10tJ Daniel Pollock, Esq. 801 Sand Bank Road # 18 Mount Holly Springs, Pa. ] 7065 Pa. Superld. 70315 (717) 486-0030 (') ,,-, () c;--.) i~ C:::;! -11 ,:.: , .'Cd ::;1 c::;, iti ~ .,..;:: h"'" C' (JI , C-) -,-; c , (') j ;-;", - , \J) , .+-; .-~J -< '" -< H~1;-.cC-~~"-:T51 i :) . COLDWELL BANKER HOMESALE SERVICES GROUP Plaintiff NDV r fjJ ,.. ~ IN THE COUR . COMMON PLEAS FOR CUMBERLAND COUNTY, P]~NNSYLVANIA NO, 2005-3386 v, MICHAEL SCHWARTZ, and MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW ORDER OF THE COURT And Now the , 7~ day of November 2005 upon consideration of the motion ofthe Defendant's the Rule of November 7, 2005 ~~s imp~...::,. JJ.,JJ granted. A A~~'rJ~ ~ fI..t p.,a:;;... IF ttI -r~"" ...~~ ~~"" ~<''''''''''''"''').J,qdr..;t 1.tJDp,~. f4 ~'-.(.," /--_. BY THE COURT J. ,'"n" ,":: hj 08 :S i!d L I WN soal Ad\'J.(Y\<),: "'.'~J::j :JHl ::f0 :;~'I~~-:()-c}::J:!::j COLDWELL BANKER HOMES ALE SERVICES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.2005-3386-CIVrL v. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION - LAW PLAINTIFF'S REPLY TO DEFENDANTS' MOTION TO STRIKE OFF RULE TO MAKE ABSOLUTE AND NOW, comes the Plaintiff, Coldwell Banker Homesale Services Group, by and through their attorneys, Caldwell & Kearns, and files the within Reply to Defendants' Motion to Strike Off Rule to Make Absolute; and in support thereof, avers as follows: 1. Admitted. 2. Admitted in part denied in part. Admitted that this Honorable Court issued an Order of Court directing Defendants to answer mle within twenty (20) days as to why Plaintiffs request for relief should not be granted. The Order of Court is a document that speaks for itself and any characterization by Defendants is hereby denied with strict proof demanded at trial. 3. Denied. Defendants' Answer to Plaintiffs Motion to Reinstate Complaint is a document that speaks for itself and any characterization by Defendants is hereby denied with strict proof demanded at trial. 4. Admitted in part, denied in part. Admitted that Plaintiff filed a Motion to Make Rule Absolute on or about November 1,2005. Denied that Defendant's answer was timely mailed to Plaintiff. To the contrary, despite the fact that Defendant's Answer to Plaintiffs Motion to Reinstate Complaint was apparently filed on October 25, 2005, and bearing an Affidavit of Service of the same date, Defendants did not mail said Answer until October 31, 2005. Attached hereto as Exhibit "A" is the envelope sent to Plaintiffs counsel containing Defendants' Answer. The postmark elate on said envelope indicates Defendants' counsel failed to mail the document until six (6) days after filing, despite certifying to this Court that said document was mailed on Octoher 25,2005. As a result, Plaintiff was unaware of Defendants' allegedly timely filing of their Answer. Defendants' delay in forwarding the Answer to Plaintiffwas without good cause, particularly pointing to the fact that an Affidavit of Service was executed by Defendants' counsel contrary to what actually transpired. Plaintiff believes counsel fees are warranted in this instance and will seek such fees and costs as necessary. Plaintiff also believes that a hearing and/or status conference might be appropriate in order to resolve these outstanding issues seemingly caused by Defendants' failure to abide by the Pennsylvania and Cumberland County Rules of Civil Procedure. 5. Admitted in part, denied in part. Admitted that Plaintiff did not contact Defendants' counselor the Prothonotary. It is denied that Plaintiff was required to contact counsel prior to filing. To the contrary, the Rule was retumable within twenty (20) days, and without hearing otherwise, on the twenty-sixth (26th) day, Plaintifffileel its Motion to Make Rule Absolute. It is also denied that Plaintiff is required to contact the Prothonotary prior to filing. 6. Denied. See response in paragraph five (5) above. By way of further answer, it is specifically denied that Defendants' were in compliance with the Order of Court of October 5, 2005. By way of even further answer, Plaintiff went above and beyond allowing Defendants ample opportunity to respond, by forwarding an additional copy of the October 5, 2005, Order of Court to Defendant by way of correspondence dated October 12,2005, and allowing an additional six (6) days waiting for an Answer to the Rule prior to filing its Motion to Make Rule Absolute. 7. Admitted in part, denied in part. Admitted that counsel for Defendant left a voicemail for Plaintiffs counsel on or about November 11,2005, seeking concurrence. Denied that no response was given. Plaintiffs counsel responded by way of email at his earliest possible convenience on November 15, 2005. Regardless, Plaintiffs concurrence in the Motion was not, and is not, provided. WHEREFORE, Plaintiff Coldwell Banker Homesale Services Group requests that this Honorable Court DENY Defendants' Motion to Strike Off Rule to Make Absolute for the above-stated reasons, and award Plaintiff all costs and attorney fees associated with defending this Motion for failure of Defendant to confornl to the Rules of Court. Respectfully submitted: CALDWELL & KEARNS By: Dated: If!d- 'J. (uf J s 1. old mith, Esquire Attorne LD. No. 27115 Douglas 1. Cassel, Esquire Attorney LD. Number 92895 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Plaintiff 05-598195329 , . . '" ~~~(~ ,11/ sfr,!'/). (f2 [7aC;; L<Zv (;to of Gld({J<0(1 ~ (<2gcfAS .(];f:J l N, fl",,;j G~- \~"ls17u!/( a < (7 ((0 Aft~VvJr"'J5 (',,5'5c(1 (5q . ~o:F"7 6dIJC;ti:f(I/;75;; i d ilP i I!' ji i)i d' j' h! i' i Hi" d if in i' iq ,11:)i Ii I, l! I EXHIBIT \~ , . . 'f CERTIFICATE OF SERVICE AND NOW, this ot:.z day of fiIoVEmBi:~ , 2005, 1 hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Daniel Pollock, Esq. 801 Sandbank Road #18 Mount Holly Springs, P A 17065 CALDWELL & KEARNS By -rdiu \.,) (-- , 25 C) -n ~:-,. f1':'l ..- ):J -" c:. - COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2005-3386 MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 12th day of December, 2005, it appearing to the Court that it would be best for us to recuse ourselves because of our interest in the building rented by Plaintiff, and both counsel being desirous of filing a brief memorandum of law in support of their respective positions, they are given ten days from today's date within which to file such memorandum of law. The court reporter is directed to transcribe these proceedings and to have the court administrator assign this matter to another judge for resolution. Edward E. Guido, J. JB~ett M. Woodburn, Esquire For the Plaintiff ~iel Pollock, Esquire For the Defendant ~1J' ,) Court Administrator I. IIAyJ ell I' srs L-/ " v , " .--~_.--- ----------- - ~ .. COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff IN THE COUHT OF COMMON PLEAS OF CUMBEHLAND COUNTY, PENNSYLVANIA v. NO. 2005-3386 MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CIVIL ACTION - LAW TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDWARD E. GUIDO, J. Cumberland County Courthouse, Carlisle, Pennsylvania On Monday, December 12, 2005, in Courtroom No. 5 APPEARANCES: BRETT M. WOODBUHN, Esquire For the Plaintiff DANIEL POLLOCK, Esquire For the Defendants 1 .'J _, FOR THE PLAINTIFF Sharon A. Helsel INDEX TO WITNESS DIRECT 8 2 CROSS 9 ..,- oil. 1 THE COURT: Good afternoon. I apologize for 2 the delay. Before me is the petition of Mr. Pollock to 3 strike off the rule to make absolute. Do you agree that the 4 answer had been filed before the rule was made absolute? 5 MR. WOODBURN: The answer had been filed 6 before the rule was made absolute, that is correct, Your 7 Honor. 8 THE COURT: So, then we're back to your 9 petition for non pros? 10 MR. WOODBURN: To reinstate the complaint. 11 I'm Brett Woodburn, representing Coldwell Banker. We're the 12 Plaintiff. 13 THE COURT: We're back to your petition to 14 reinstate the complaint? 15 MR. WOODBURN: Correct. 16 THE COURT: So we'll proceed that way. 17 MR. WOODBURN: Your Hono.r, if I may, without 18 the need, I believe, to take testimony, which I'm prepared 19 to do, the Superior Court case of Frieillnan v. Lubecki speaks 20 directly to the situation. It holds in order to sanction a 21 party by not having the case proceed to the ultimate 22 determination when they have not filed a complaint within 23 the 20-day period to the rule to show cause, when the 24 complaint is filed before either the appeal is stricken or 25 in the case when the Defendant is the appellee before the 3 ,'.,1 .I, 1 notice to enter judgment of non pros and non pros is entered 2 -- in other words, when the Plaintiff wins the race to the 3 courthouse, there is no longer a remedy available to the 4 Defendant to strike the appeal; or in this case, the 5 procedural process would have been to file a ten-day notice 6 of intent to seek entry of judgment of non pros. 7 THE COURT: What facts cia we have that are in 8 dispute? That's the reason I'm having the hearing today. 9 Are any facts in dispute, Mr. Pollock? 10 MR. POLLOCK: The only fact that possibly is 11 in dispute is whether my client filed the notice back with 12 the prothonotary within the ten days, for which I do have a 13 copy with me. 14 THE COURT: All right. Well, if you can -- IS do you agree with that? Is that the only fact I have to 16 decide today? Other than that, is it a question of law? 17 MR. WOODBURN: It is a question of law, Your 18 Honor. 19 MR. POLLOCK: Yes. 20 THE COURT: Okay. So you agree that it was 21 filed within the ten days? 22 MR. WOODBURN: Yes. There's no dispute with 23 that. 24 THE COURT: Okay. All right. 25 MR. POLLOCK: Because that's the only issue 4 ,'" ,..1>, 1 they pled. 2 THE COURT: So that the only issue before me, 3 then, is whether or not you should be allowed to file a 4 complaint? 5 MR. WOODBURN: Correct, and I believe -- I 6 guess a collateral issue, if the Court is willing to hear 7 it, is a request for costs in this case, because we believe 8 that the law was clear and that the procedure followed by 9 the Defendants was not only inappropriate, but contrary to 10 the law of Pennsylvania. 11 THE COURT: Do I need to decide any facts on 12 that? 13 MR. WOODBURN: The only testimony I would 14 offer is testimony of my client as to what costs have been 15 incurred. 16 THE COURT: I'll hear that. I presume the 17 parties are going to want to file a brief, or do you just 18 want me to look at one case? 19 MR. WOODBURN: I want you to look at one 20 case, Your Honor, and the docket -- I can cite the 21 procedural history. I don't believe there's any question on 22 that. 23 THE COURT: The docket will speak for itself. 24 MR. WOODBURN: The docket speaks for itself. 25 THE COURT: I'll take testimony with regard 5 "II- ' ~~. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to costs. Then I'll look at your case and give you a chance to respond. MR. POLLOCK: Your Honor, for a precedent, we cite Esslinger v. Sun Refining. I mention that in my answer. THE COURT: Give me the cite on that, Mr. Pollock. MR. POLLOCK: The cite on that 549 A.2d 600. THE COURT: Okay. Do you have the cite on the Friedman case, sir? MR. WOODBURN: I do, Your Honor. I was unable to find the Esslinger v. Sun Refining case. The citation in the brief or the motion filed by defense counsel is 549 A.2d 660. MR. POLLOCK: THE COURT: MR. POLLOCK: I do apologize. Typographical. 600 is correct? Yes. I have a copy here, Your Honor. THE COURT: I've got the Atlantic 2d back there. Maybe if you give it to your opposing counsel, he can take a look at that. Give me the cite on the Friedman v. Lubecki, please. MR. WOODBURN: 524 A.2d 987. THE COURT: Okay. MR. POLLOCK: Your Honor, there is one thing 6 ... ,-, 1 that, since it's been brought up, may have some bearing on 2 this. Esslinger turns on the idea that there was a rule to 3 file followed. Now, in the paperwork, when one files an 4 appeal from the district justice court to the Court of 5 Common Pleas, the paperwork that is sent to the appellee 6 includes a rule to file, which I have a copy of it with me. 7 There should be a copy of that in the 8 THE COURT: Okay. It will be part of the 9 docket. 10 MR. POLLOCK: Yes. 11 THE COURT: All right. 12 MR. POLLOCK: Also, Rule 231.7 does not apply 13 to a judgment entered upon praecipe pursuant to an Order of 14 Court, which a rule to file would be. 15 THE COURT: Isn't the long and the short of 16 this, though, Mr. Pollock, even were I to dismiss this 17 charge, the statute of limitations have not run? 18 MR. POLLOCK: However, the 20 days to file 19 has run and res judicata would set in. 20 THE COURT: No, it would not. That law I 21 know without even looking it up or having it cited to me. 22 Res judicata does not set in. If I dismiss this for lack of 23 prosecution or non pros, my understanding of the law is that 24 they would simply get another term and number to file a 25 complaint. 7 ,,II . . ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. POLLOCK: However, since this matter is came up on a summary appeal, this matter was heard in the District Court downstairs and came here on a summary appeal THE COURT: I understand what you're saying. I don't think that's the law, but I will certainly look at all aspects of this. Do you want to put your evidence on with regard to costs? MR. WOODBURN: Yes, please, Your Honor. I call Sharon A. Helsel. THE COURT: Okay. SHARON A. HELSEL having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. WOODBURN: Q Would you please state your full name for the record. A Sharon A. Helsel. Q With whom are you currently affiliated? A Coldwell Banker Homesale Services. Q In what capacity? A Broker of record. Q Ms. Helsel, are you familiar with the case, the reason we're in court today? A Yes. Q Are you familiar with the costs that have 8 ..;, ...', 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been incurred by Coldwell Banker with respect to this procedural issue? A I know the costs to date -- I would not be able to include the cost for today -- but it's around 1,059 or 60 dollars. THE COURT: Does that include the preparation of the complaint, or is that just the procedural issue here? THE WITNESS: Just the procedural issue. THE COURT: Understood. MR. WOODBURN: That's all I have on that issue, Your Honor. THE COURT: Any questions, Mr. Pollock? MR. POLLOCK: Yes. CROSS-EXAMINATION BY MR. POLLOCK: Q Were you aware that this matter was -- that the complaint was to be filed within 20 days of your receipt? MR. WOODBURN: Objection, Your Honor, relevance. THE COURT: Sustained. BY MR. POLLOCK: Q Have you received a breakdown of the bill and what costs are A I have received some of the invoices. 9 .-~ 'y.', 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 They're actually paid directly out of our accounting department. Q But you have no invoices with you to enter? A No. Q How much an hour is your -- MR. WOODBURN: Objection, Your Honor, relevance. THE COURT: Overruled. BY MR. POLLOCK: Q How much an hour are you being billed out at? A I don't know the specifics, because it somewhat depends on which attorney is doing what, so I can't give you an absolute answer. MR. WOODBURN: If the Court would take notice that it is billed at $140.00 an hour. THE COURT: Well, that's not a fact I can take notice of. If you want me to show an exhibit or something, or if Mr. Pollock is prepared to agree to that fact, then I can take notice of it. MR. POLLOCK: You may go ahead and take notice. THE COURT: So you'll stipulate that the billing is $1,060.00 at $140.00 per hour? MR. POLLOCK: All right. That's all I have to bring. 10 ..... ' ~., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. POLLOCK: THE COURT: Anything else? Not of this witness. Thank you. I take it you're done? MR. WOODBURN: I am. I would like just to -- the docket will speak for itself. I wanted to just specifically draw the Court's attention to a docket entry of July 14th, 2005. THE COURT: I do not have the docket in front of me right now, although I have the file in front of me. What is that? MR. WOODBURN: The docket is actually a document that was filed on behalf of Coldwell Banker Homesale Services Group within 20 days of the filing of the notice of appeal. It contains the caption Coldwell Banker Homesale Services Group v. Mary Lynn Schwartz and Michael C. Schwartz, contains a Court of Common Pleas docket number and a narration in paragraph format of the allegations under which the Plaintiffs are bringing this claim. It has been signed by a representative of Coldwell Banker Homesale Services Group. It is a one-page document, which is the only reason I brought it to the Court's attention, so that in the review it doesn't get overlooked as it did, I think, the first time I looked through my file. 11 ~.,. I L! ~', 1 THE COURT: It's part of what document, did 2 you say? 3 MR. WOODBURN: I have my copy from my file. 4 It is actually docketed to this docket number. 5 THE COURT: Okay. That's the one signed 6 by -- oh, don't tell me this is the Coldwell Banker Homesale 7 Services Group that is on the Walnut Bottom Road? 8 MR. WOODBURN: Yes, 9 THE COURT: They rent from me. 10 MR. WOODBURN: I had no idea, Your Honor. 11 MR. POLLOCK: Nei ther did I. 12 THE COURT: Oh, and I didn't either. Well, 13 since there are no facts that need to be established, what I 14 will do will be to see that the docket gets copied, ask Sue 15 to transcribe what transpired today, and I will forward it 16 to another judge for resolution of the issue, if that's 17 satiSfactory to counsel. 18 MR. POLLOCK: Satisfactory, Your Honor. 19 MR. WOODBURN: Yes, Your Honor, that's fine. 20 THE COURT: I don't see that I could, in good 21 conscience, rule upon this since I've got a financial 22 interest in the building that they're paying rent on. So if 23 it's okay with counsel, that's the way I'll do it. 24 MR. POLLOCK: Fair enough, Your Honor. 25 MR. WOODBURN: No objection, Your Honor. 12 ,..., .-).t 1 Your Honor, I did have a copy of the Friedman case that I 2 cited. 3 THE COURT: What I'll do is I'll have my law 4 clerk indicate that the parties -- rather than submitting 5 memorandum of law, the Plaintiff feels that Freidman 6 controls and the Defendant feels that Esslinger controls. 7 If you give me a copy of your respective cases, I'll put 8 them right in the front of the file. 9 MR. POLLOCK: If you would, Your Honor, if 10 the copy of the notice of appeal and the copy of the 11 affidavit of service were put along with Esslinger, it would 12 be much appreciated. 13 THE COURT: Well, he'll get the whole file 14 with the docket. 15 MR. POLLOCK: I understand that. But it's 16 because of those two things that Esslinger is appropriate. 17 THE COURT: All right. Do you want to file a 18 memorandum addressed to the judge? 19 MR. WOODBURN: Your Honor, since I haven't 20 had a chance to review Esslinger, perhaps it would be 21 beneficial to take 22 THE COURT: Let me enter the following Order 23 then: 24 "AND NOW, this 12th day of December, 2005, it 25 appearing to the Court that it would be best for us to 13 ....-:..v ~..l 1 recuse ourselves because of our interest in the building 2 rented by Plaintiff, and both counsel being desirous of 3 filing a brief memorandum of law in support of their 4 respective positions, they are given ten days from today's 5 date within which to file such memorandum of law. 6 "The court reporter is directed to transcribe 7 these proceedings and to have the court administrator assign 8 this matter to another judge for resolution." 9 (Court was adjourned.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 ...... "'l-~ CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. V~J)n /? )dkS-v Susan Rice Stoner Official Stenographer ----------------------- The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. I~I /0(" Date Edward E. Guido, J. 15 .' .jl F. , . - ---- \ .~ COLDWELL BANKER, HOMESALES SERvrCES CORP., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. crvrL ACTION - LAW NO. 05-3386 CIVIL MrCHAEL SCHWARTZ and MARY L YNN SCHWARTZ, Defendants IN RE: PLAINTIFF'S MOTION TO REINSTATE COMPLAINT, PLAINTIFF'S REQUEST FOR COUNSEL FEES, AND DEFENDANTS' PRELIMINARY OBJECTIONS ORDER AND NOW, this 17' day of January, 2006, upon review of the record and the transcript of proceedings held before the Honorable Edward E. Guido on December 12, 2005, the complaint of the plaintiff, containing a notice to plead, is REINSTATED effective this date and the defendants are directed to file a responsive pleading within twenty (20) days. The court being willing to give counsel for the defendants the benefit of the doubt and concluding that his actions, to date, have been more wrong-headed than obdurate or vexatious, the request of the plaintiff for counsel fees is DENIED. It appearing that preliminary objections were filed by the defendants six minutes after they filed their "Praecipe to Strike Complaint," the preliminary objections of the defendants are DISMrSSED as moot. A review of said preliminary objections, however, reveals that they are patently frivolous and counsel for defendants is warned that any attempt to reassert similar preliminary objections may result in sanctions. '..,~~ . '-'Y ' L~ '~y' h (':-' D- [%",~\p - \' f\ V BY THE COURT, (. "'" ',,:; : / 'I '.",,: .".j , !..l .. Brett M. Woodburn, Esquire For the Plaintiff Daniel Pollock, Esquire For the Defendants :rlm COLDWELL BANKER HOME SERvrCES GROUP Plaintiff IN THE COURT OF COMMON PEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.2005-3386-CIV1L V. MICHAELSCHW ARTZ and MARY LYNN SCHWARTZ Defendants C1VILACTION-LA W NOTICE 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 Answer and New matter are served, by entering a written appearance personally or by attorney, and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money cla1med in the complaint or for any other claim or relief requested by the plaintiff. You may lose money, or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CAN NOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA. ]7013 (800) 990-9108 COLDWELL BANKER HOME SERVICES GROUP Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.2005-3386-CIVIL V. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ Defendants CIVIL ACTION-LAW ANSWER AND NOW, here come the Defendants, Michael and Mary Lynn Schwartz by and through their attorney, Daniel Pollock, Esq. to answer the complaint of the Plaintiff and to assert a new matter into this dispute. In support of their answer and new matter they aver the following: I. Admitted 2. Admitted 3. Admitted 4. Admitted 5. Admitted in part, denied in part, the "amended contract" as the plaintiff refers to it was drawn up and explained to the Defendants as a rescission of the contract mentioned in Plaintiffs complaint Paragraph #3 Defendants attempted, and believed that they were successful in rescinding the contract pursuant to the Pennsylvania Unfair Trade Practices Act for rescinding a contract for the purchase of goods or services entered into at one's own home. 6. Denied, see paragraph #5 7. Denied, contract with the Plaintiff was terminated previously, see paragraph #5 8. Admitted in part, denied in part, Defendants believed that the contract has been properly rescinded and hence did not owe the plaintiff any compensation, by further answer the Plaintiff did not do anything to assist in the sale of the property. \ 9. Denied, the Defendants claim that the Plaintiff is not owed any compensation. Defendants claim that the listing contract was properly rescinded as per the Pennsylvania Unfair Trade Practices Act. 10. Denied, as per paragraphs 5, 8, 9. II. Any allegation which can be stated or inferred by any party directly or indirectly against the interests ofthe defendants which has not been specifically admitted to herein his hereby denied. Wherefore the defendants, Michael and Mary Lynn Schwartz pray that a verdict be returned in their favor BY THrS HONORABLE COURT and that the Plaintiffs are not granted any recovery of damages. NEW MATTER Count I VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES ACT 12. Paragraphs 1-11 are incorporated by reference 13. Alice Summar Womack was an agent employed by the plaintiff to carry out its business of selling homes between September 2004 and January 2005, it is unknown whether she is currently an agent for Coldwell Banker Homesale Services Group. 14. On November 12,2004 at about 9:00 P.M. Ms. Womack arrived at the home of Michael and Mary Lynn Schwartz at 2854 Enola Road, Carlisle, Pa. to discuss the possibility of her selling their home for the Schwartz's through the brokerage Ms. Womack was affiliated with. 15 During the discussions held that night Ms. Womack convinced Mr. and Mrs. Schwartz to sign an exclusive agreement to sell their home at 2854 Enola Road Carlisle Pa. with her Brokerage Firm, Coldwell Banker Homesale Services Group. 16. Ms. Womack failed to provide Mr. and Mrs. Schwartz with the appropriate forms to rescind a contract for the purchase of goods or services entered into at the buyers' home as required under the Pennsylvania Unfair Trade Practices Act. 17. On or about November 15, 2004, Michael Schwartz notified Ms. Womack at Coldwell Banker's offices Via Telephone that he and his wife no longer wished to sell their home through Coldwell Banker. 18. Sometime during the late winter! early spring of 2005 Coldwell Banker instituted a law suit against The Defendants for Breach of Contract for not allowing them the right to sell the home at 2854 Enola Road, Carlisle, Pa. \ Wherefore, Defendants Pray that this Honorable Court find The Plaintiff, Coldwell Banker Homesale Services Group Liable for failure to abide by the terms of the Pennsylvania Unfair Trade Practices Act by failing to inform them of how and under what terms that they could rescind the exclusive listing agreement contract. COUNT II VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES ACT 19. Paragraphs 1-18 incorporated by reference. 20. On or about November 17,2004, Ms. Womack upon receiving the message left for her on or about November 15, 2004 concerning the Schwartz's desire not to sell their home through Coldwell Banker, Filled out an Amendment to Exclusive Right to Sell Agreement and wrote that Mr. and Mrs. Schwartz no longer wished to sell their home and not to put it on the market, and not to list the home with the Multi-list, and no publicity. 21. On November 20, 2004, Ms. Alice Womack of Coldwell Banker Homesale Services Group brought this amendment to the Schwartz Residence, at 2854 Enola Road, for their signature, passing the amendment off as the end of the business relationship between Coldwell Banker and Michael and Mary Lynn Schwartz. II Based on the events mentioned above, Michael and Mary Lynn believed to their legal determent that the Listing Contract concerning the sale of their home at 2854 Enola Road Carlisle, Pennsylvania was rescinded when they decided several months later to list and sell their property at 2854 Enola Road through another real estate broker. Wherefore the Michael and Mary Lynn Schwartz Pray that this Honorable Court find that they were victims of violations of the Pennsylvania Unfair Trade Practices Act by the actions of Ms. Womack's actions as an agent of Coldwell Banker Homesale Services Group in leading them to believe that their Listing contract had been rescinded. COUNT III VIOLATIONS OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT 23. In purchasing their home at 1007 Acre Drive Carlisle, Pa. on January 14,2005 which was listed for sale by Coldwell Banker Homesale Services Group, Alice Womack, acting as an agent for Coldwell Banker, sold a home warranty insurance policy underwritten by American Home Shield Corporation. , 24. Ms. Womack stated to Michael and Mary Lynn Schwartz that this home warranty policy would cover the Geo- Thermal HV AC system which the home used. 25. The Policy issued by American Home Sheild Corporation specifically excludes Geo- Thermal HV AC systems. 26. Ms. Womack knew that the home at 1007 Acre Drive used a Geo- thermal HV AC system for its source of heat as she filled out the Real Estate Disclosure statement that was given to the Mr. and Mrs. Schwartz. 27. Michael and Mary Lynn Schwartz considered the availability of a home warranty which would cover the HV AC system for 1 year a factor in the purchase of the home at 1007 Acre Drive. 28. Shortly after the closing on the property at 1007 Acre Drive the Geo Thermal HV AC System broke resulting in a $6,000 replacement bill for the Geo- Thermal power Plant ofthe HV AC system. 29. Michael and Mary Lynn Schwartz discovered that the Geo Thermal HV AC system was not covered when they attempted to collect from American Home Shield Corporation to pay for the replacement of the Power Plant of the Geo- Thermal HV AC system. 30. Alice Womack, acting as an agent of Coldwell Banker Homesale Services Group, falsely represented to Michael and Mary Lynn Schwartz that the Geo- Thermal HV AC system would be covered when she knew or should have known that the Geo- Thermal HV AC system would not be covered under the terms of the Home Warranty issued by American Home Shield Corporation. Wherefore the Defendants Pray that This Honorable Court find that they were victims of violations of Pennsylvania Unfair Trade Practices Act due to the behavior of Alice Womack acting as an agent of the Plaintiff. COUNT IV RESPONDANTSUPERIOR 31. Paragraphs 1-30 incorporated by reference 32. Through all events listed in this Answer and New Matters Alice Womack was an agent of Coldwell Banker Homesale Services Group, and was acting under its direction. 33. An Agent's acts while acing under the scope of their agency bind the party for whom the agent is acting as if the party had committed the acts itself. Wherefore the Defendants Pray that this Honorable Court find Coldwell Banker Homesales Services Group liable for all damages suffered by Michael and Mary Lynn Schwartz for Violations of the Pennsylvania Unfair Trade Practices Act. DAMAGES 34. Paragraphs 1-33 are incorporated by reference. 35. Because of the plaintiffs failure to follow the terms of the Pennsylvania Unfair Trade Practices Act concerning providing the Purchaser of goods or services which could cost more then $25 a form by which the purchaser may rescind the contract when the contract is completed or contemplated at the purchaser's home, Michael and Mary Lynn Schwartz have had to hire Legal counsel to defend against the claims of the Plaintiff 36. As of this moment the Costs of such legal services has exceeded $1,500 and are expected to exceed $3,000 by the close of trial 37. Because of the Home warranty not covering the Geo- Thermal HV AC system Michael and Mary Lynn Schwartz have suffered monetary damages. 38. To Replace the Geo- Thermal Power Plant cost $6,000 39. The cost of the Home warranty was $415 40. The extra Electric costs due to the malfunction of the Geo- thermal HV AC system was $200/Mo. 41. Due to the amount of money needed to replace the HV AC power Plant these extra electrical costs continued for 4 months. 42. The Pennsylvania Unfair Trade Practices Act calls for Treble Damages to be awarded for injuries suffered as a result of a violation of its terms. 43. Actual damages are projected to be approximately $10,215 by the close of trial. 44. Damages recoverable under the Pennsylvania Unfair Trade Practices Act in this action are $30,645 Wherefore the Defendants pray that this Honorable Court find that Coldwell Banker Homesale Services Group be found liable to them for the sum of $30,645 for the violations listed above. all' S mitt'" Daniel Pollock, Esq. Attorney for the Defendants Michael and Mary Lynn Schwartz Daniel Pollock, Esq. 801 Sandbank Road # 18 Mount Holly Springs Pa. 17065 Pa. Superld. 70315 Phone and Fax# (717) 486-0030 E-Mail Dbigdanp@Aol.com VERIFICATION r verify that the statements made in this Answer and New Matter are true and correct to the best of my knowledge. I understand that false statements knowingly made herein are subject to the penalties of 18 Pa. C.S. 4904 regarding unsworn falsifj ations to Authorities. :;'f~/{)U D TE' " ~ f/ U y?.,/ /~~ ,~/" / .a 'Mary &frt'SchQz '/ AFFlDA VIT OF SERVICE On February 6, 2006 I, Daniel Pollock, Esq. did serve a copy of this Answer and New Matter by 1st class mail to the following party. Law Firm of Caldwell and Kearns 3631 North Front Street Harrisburg, Pa. 17110 Attn.: James L. Goldsmith, Esq. Douglass L. Cassel, Esq. i7~ Daniel Pollock, Esq. 801 Sand Bank Road #18 Mount Holly Springs, Pa. 17065 Pa. Superld. 70315 (7 I 7) 486-0030 0 '" 0 . C -n "T1 ::;j JT; ,',:1:D w . r- , . , , ( en v r~) , -~ .- ::a --. I") -< --------- COLDWELL BANKER HOMESALE SERVICES GROUP, Plaintiff vs. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-3386-CNIL CNIL ACTION - LAW PRAECIPE Please mark all cross-claims and counter-claims in the above-captioned case settled, discontinued and withdrawn. Date: -If flJ(aG 05-598/100520 Respectfully submitted, qr~... Daniel Pol ck, Esquire AttorneyLD. #70315 801 Sandbank Road Mount Holly Springs, P A 17065 Attorney for Defendants Michael Schwartz and Mary Lynn Schwartz 2 s:- o;.' ;:%rp -T ..,', ~(-: ..",'1- '::'.(,':: '2C ~C ~U rC ~ ~ ~ c:r ':S ?;. ~ ~e - !~, - ~~ 06 %ft' 9, - ~ -0 '$ C,.r.) .. CP COLDWELL BANKER HOMESALE SERVICES GROUP, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2005-3386-CNIL vs. MICHAEL SCHWARTZ and MARY LYNN SCHWARTZ, Defendants CNIL ACTION - LAW PRAECIPE TO THE PROTHONOTARY: Please mark the claim in the above-captioned case settled, discontinued and withdrawn. Respectfully submitted, CALDWELL & KEARNS ~ Date: ~ I" If) (. o urn, Esquire LD. #81786 1 North Front Street Harrisburg, P A 17110 Attorney for Plaintiff Coldwell Banker Homesale Services Group 05-598/100523 8 s:: "'Om lTfn 2:::.-r:: 2'1" 6D- ~e:. P; ....., 2'......;:' --.C_. -c:- ~ ""-> c:::> = 00- :::z ;bIo -< ~ :r! m:n r- :Bf? go T!-r. 2~ o ~ -< -0 :JI: ~ CD