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HomeMy WebLinkAbout05-5065KENDALL PARLETTE and CHARLOTTE PARLETTE Plaintiffs v5. TODD KLINE and STACEY KLINE Defendants TO: DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA d S - ou U ??rcJZ- IN EQUITY NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle PA 17013 Telephone: (717) 249-3166 KENDALL PARLETTE and CHARLOTTE PARLETTE Plaintiffs VS. TODD KLINE and STACEY KLINE Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05"- EQUITY IN COMPLAINT IN EQUITY AND NOW, come the Plaintiffs Kendall Parlettq and Charlotte Parlette, by and through their attorney, Gregory J. Katshir, Esquire, and complains upon a cause of action in equity whereof the following is a statement: 1. Plaintiffs, Kendall Parlette and Charlotte Parlette, husband and wife, are adult individuals residing at 601 Sharon Street, Mechanicsburg, Pennsylvania 17050. 2. Defendants, Todd Kline and Stacey Kline, husband and wife, are adult individuals residing at 1130 East Lisburn Road, Mechanicsburg, Pennsylvania 17055. 3. On or about March 3, 2004, Plaintiffs and Defendants executed an Agreement of Sale wherein Plaintiffs agreed to sell their real property located at 1130 Lisburn Road, Mechanicsburg to Defendants. Settlement on the purchase occurred on April 16, 2004. 4. At settlement, the parties made an oral agreement to hold the sum of $20,000.00 in escrow pending an inspection of on-site septic system. James C. Miller, Esquire, the settlement agent, is holding the funds in his escrow account. 5. Defendants had complained of a wet drainfield. In good faith, Plaintiffs agreed to withhold $20,000.00 from their proceeds until it could be determined if the drainfield was wet from sewage and if they would be responsible for the repair. At no point prior to settlement did Defendants make a claim that the system was not working properly. 6. On or about September 2004, Gregory C. Moll, P.E. Township Engineer for Upper Allen Township inspected the on-lot sewage disposal system. Both Mr. Parlette and Mr. Kline were present. After inspection, Mr. Moll indicated that there was no evidence of sewage in the area and that the septic system and sandmound were not malfunctioning. 7. Defendants obtained an estimate for repairs from Associated Products. The work order indicates a saturated sandmound area, but does not indicate the area was wet from sewage. That report, however, was obtained approximately one year after the date of settlement. The report did indicate that the inspector found no malfunction in the septic system. 8. Plaintiffs have made repeated requests for the disbursement of the escrow funds. Defendants however refuse to permit the disbursement. 9. In that no adequate remedy at law exists, it would be appropriate for this Honorable Court to exercise jurisdiction over this matter. 10. Plaintiffs request this Honorable Court to issue order of court directing James C. Miller, Esquire to disburse the $20,000.00 held in escrow to Plaintiffs, Kendall Parlette and Charlotte Parlette. WHEREFORE, Plaintiff requests this Honorable Court to grant appropriate relief, including an award for costs, fees and interest. Respe Gregor{ J. Atshir, Esquire Attorney or Plaintiffs PA ID#61967 900 Market Street Lemoyne PA 17043 (717) 763-8133 VERIFICATION OF KNOWLEDGE. INFORMATION AND BELIEF I verify that the facts set forth in the foregoing Complaint to are true and correct to the best of my knowledge, information and belief. I understand that false averments herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: S"t 1 ? -,> 0 d S Date: Kendall Parlette 74 -? Charlotte Parlette vJ cri t i rz,r V {n ? ` ? Cry ;-C C` J KENDALL PARLETTE and CHARLOTTE PARLETTE Plaintiffs VS. TODD KLINE and STACEY KLINE Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 05-5065 CIVIL TERM IN EQUITY ACCEPTANCE OF SERVICE I accept service of the Complaint in Equity on behalf of Defendants Todd Kline and Stacey Kline and certify that I am authorized to do so. Date: II Ur-T 2-005 r ?) --- Robert P. Kline, Esquire Attorney for Defendants Todd Kline and Stacey Kline 714 Bridge Street New Cumberland PA 17070 r? L/ ("? ? ^`i 1 C. u'? .-i "? ?_ ? iii i:?:. ?, -r-, _ _ ?.., t?.7 i:3 c; t -?'. (,$5 KENDALL PARLETTE and CHARLOTTE PARLETTE, Plaintiffs V. TODD KLINE and STACEY KLINE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5065 CIVIL TERM IN EQUITY NOTICE TO PLEAD TO: Kendall Parlette and Charlotte Parlette c/o Gregory J. Katshir, Esquire 900 Market Street Lemoyne, PA 17043 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, "( 0 d-U 7CWS Date ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants KENDALL PARLETTE and CHARLOTTE PARLETTE, Plaintiffs V. TODD KLINE and STACEY KLINE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5065 CIVIL TERM IN EQUITY ANSWER TO COMPLAINT IN EQUITY WITH NEW MATTER AND NOW, come the Defendants, Todd Kline and Stacy Kline, by and through their attorney, Robert P. Kline, Esquire, and answer the Complaint in Equity at the above term and number as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part. Defendant admits that an agreement was reached to hold the sum of $20,000.00 in escrow with James A. Miller, Esquire, the settlement agent, serving as escrow agent. The remaining allegations of this paragraph are specifically denied. Defendants' understanding was that the escrow funds were to be used for the necessary repairs to the septic system. 5. Denied as stated. Defendants had presented Plaintiffs with a report from Dillsburg Septic, Excavating, & Paving, Inc., indicating that, at an inspection held on April 6, 2004, the system acceptance of effluent had failed as a result of a wet drain field. It was the understanding of the Defendants that the escrowed funds were to be held for the purposes of completing said repairs. A copy of the report is attached as Exhibit "A". 6. Denied as stated. Admitted that Gregory C. Moll, P.E., Township Engineer for Upper Allen Township, did perform an inspection at the property in the fall of 2004 at which both Mr. Parlette and Mr. Kline were present. Said inspection was held at the request of Plaintiffs. The representation as to Mr. Moll's opinion is a conclusion to which no responsive pleading is required and, to the extent a response is required, the allegation is denied. Admitted. A copy of the estimate and the work order from Associated Products are attached collectively as Exhibit "B". As Associated Products found that the sandmound was saturated, the estimate was provided for drain field restoration and tank replacement. The purported conclusions reached by Plaintiffs as to the contents of this report are specifically denied. 8. Admitted. 9. Admitted. 10. Denied. Defendants request that this Honorable Court issue an order directing that an adequate release of funds be made to repair the septic system and drain field as was requested at settlement on April 16, 2004. WHEREFORE, Defendants request that this Honorable Court grant appropriate relief, including the use of the escrow funds for their intended purpose, including an award for costs, fees and interest. NEW MATTER 11. An inspection was conducted prior to settlement, on April 6, 2004, by Dillsburg Septic, Excavating & Paving, Inc., and the report from said inspection indicates that the system acceptance of effluent had failed as a result of a wet drain field. A copy of the report of Dillsburg Septic is attached as Exhibit "A". 12. The sum of $20,000.00 was escrowed at settlement from the Plaintiffs' proceeds for the specific purpose of correcting the problems with the septic system as identified by Dillsburg Septic in its report attached as Exhibit "A". 13. The inspection by Gregory C. Moll, Township Engineer for Upper Allen Township, was performed at the request of Plaintiffs. 14. It is believed, and therefore averred, based upon representations made to Defendant Todd Kline by Gregory C. Moll, P.E., that he is not certified to make any determination regarding this septic system. 15. Defendants obtained an estimate from Associated Products Services, Inc. for said repairs in March, 2005. A copy of the estimate and the work order of Associated Products is attached as Exhibit "B". The work order confirms that Associated Products found that the sand mound was saturated and that drain field restoration and tank replacement were required. This inspection was performed at the expense of Defendants. 16. The problem with the septic systems continues to this date and Plaintiffs have refused to authorize the appropriate work or release appropriate funds from the escrowed monies in order to accomplish the required repairs. q t4 IN 2odS DATE Respectfully submitted, ROBERT P. KLINE, ESQUIRE Attorney ID#58798 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants 9-2004 01:07 AM P.04 DIl`+T+$ ? RC#' !3a'P1'IG', 'CA, VATIl GO FAVIMG t ENC. 919 Range End Road "COMMERCIAL' RESIDENTIAL" (717) 432.9704 0111aburg, PA 17019 Total Site Prop (717) 343-2910 Septic Systems Cleaned' Installed' Repaired Fax (717) 432.9999 Basement Excavation ' Grading " Backhos Service Water; Sewer Lines Installed & Repaired Complete Paving Service April d, 2004 Charlotte: & Ken Parlette 1130 E Lisburn Road Mechanicsburg, Pa. 17055 RE: Cleaning and Inspection _ X.,__,. ____ Surface Inspection To Whom It May Concern: RE: 1130 E Lisburn Toad Mechanicsburg, Pa. In accordance with your recent request, D1LLSBURG SEPTIC, EXCAVATING & PAVING, INC. performed an inspection of the septic system at the above noted property on 4-6-2004 - Portions of the system were not naturally exposed on the day of the inspection were not examined, and neither functionality nor integration is verified. System parts examined include: 1000 ` Septic Tank. Size and Condition Failed SEE BELOW System Acceptance of Effluent OK Proper Toilet Flush The system inspection which was performed for you includes no report on inaccessible parts of the system, quality of water discharge, or total system functionality. System defects includes: The drainfields are wet. You will need a permit from the Township to correct this problem. Page 1 of 2 ..y EXHIBIT "A" APR-09-2004 01:07 AM P.05 DILLBBURt $FPnct M17CCI VIA&i G, 8s PAVM09 ENC. 510 Range E'nd Road "COMMERCIAL " RESIDENTIAL" (717) 432.0704 Dlllsburg, PA 17019 total Site Prep (717) 646.2010 Septic Systems Cleaned "Installed " Repaired Fax (717) 492. 9699 Basement Excavstlon "Grading " Backhoe Service Water; Sewer Lines Installed & Repaired Complete Paving Service The seller is to inform Dalisburg Septic, Excavating & Paving, Inc., Buyer or Agents of any system malfunctions, illegal connections or surfacing water or.pipes, Any and all cost of liablUty or repairs reverts to the seller. This includes any sewage, washer, or sink waste. This letter is intended only as a report of present conditions of the septic system, based on what was observed, in light of our considerable on site waster water technology. DILL,SB[JRG SGP'I'IC, FXCAVAT'ING & PAVING, INC. does not warrant or guarantee the proper functioning of the system for any time in the future. The conditions of the system in the futwo will depend upon the size of the family, the family water conservation practices, and weather conditions, Because of numerous factors that may effect the proper operation of the septic system, as well as the inability of DILLSBURG SEPTIC, EXCAVATING & PAVING, INC, to monitor the use or maintenance of the system, this report shall be construed only as a report of the operating condition of the system an the date of the inspection. DII.LSBLJRG SEP'T'IC, EXCAVATING & PAVING, INC. specifically DISCLAIMS any warranty or assurance, either expressed or implied, associated with the future performance of the system, the inspection of the system, or this report. DILLSB G SEPTIC, EXCAVATING & PAVING MIC. 13l':...- F. Eugene I.,ivingston SEE? AT'T'ACHED MAINTENANCE. LETTER, Page 2 of 2 P.O. Box 231 • Mechanicsburg, PA • 17055-0231 • Phone (717) 766-5397 • 800-433-2070 , T ?, IIII • FAX (717) 766-4299 t • www.assocproducts.com r • email: associatedprod@aol.com i " Commercial/Residential Todd.Xtine 1130 E .Lisburn Rd 9viechanicsburg, Pa. 17o55 Dear Mr. Xtine, Thank you for the invitation to do the work at your home. The complete cost for a futtrestorationptus a new tank is s6163.oo. It includes backhoe services, enzymes, pump truck, electronic tocaters, terrafift and instaClation of a 1500 gallon tank with outlet filter. The work is to be done directly by .Associated Products Team members who are cert ftd and regularly tested by Pennsylvania Septic .Management Association's education program. There woutdbe a z year warranty with the work. If it tivoutdre-compact before the 2 years we woutdre-shoot it and if that faits you woutdreceive 50% of the air fracture price. Please sign andreturn 1 copy soon. Please enclose a deposit of s1,75o.oo toward this work. yours 7'ruty, Associated Products Services, Inc Arthur F. Nelson IIF ---------- Customer nature • Televised Drain & Sewer Line Service • Septic Management Service • Sanitized Portable Restrooms • Worksite Traffic Control • Flood Light Tower Rentals • Drainfield Restorations • Sewer & Drain Service EXHIBIT "B" "The Service People" W O R K ASSOCIATED PRODUCTS SERVICES INC 2 EAST ROAD P.O. BOX 231 MECHANICSBURG, PA 17055 717-766-5397 FAX=717-766-4299 SERVICE ADDRESS --------------- --------------- TODD KLINE 1130 E LISBURN RD MECHANICSBURG, PA 17055 O R D E R MAP= DRIVER= TIME= 1STAM WORK INV= 161132 - 01 ACCOUNT= 23068 TYPE SIDE GROUP= BILLPHONE= 691-1398 H TAX%= 0.00 SITE PHONE= 443-1441 C TAXIF-0 PO#= TERMS=COD ORDER BY= TODD KLINE SALES=AN DATE= 03/28;2005 BILL ADDRESS TODD KLINE 1130 E LISBURN RD MECHANICSBURG, ]?A 17055 DIRECTION: TAKE 114 OUT OF MECHANICSBURG, DOWN BOWMANSDALE RD TO NEW LIGHT TL AT LIGHT ONTO EAST LISBURN, FOLLOW 114 UNDERNEATH UNDERPASS, GO 2 MILES ON RIGHT, # ON BOX k,,? 61,,,d jjfied y+nd ?o?n ? 5044JJ IP &,x 10 5/,cam 50'L Orr??Y.u? Gv?lif Y74 (?'C g rote O? 44 cue. 7'0 !7e - [[ . C7/'Mr?/IG aN Pir i nJ.r Id R?gfu( T1'oN .?U? Q/1? )4/1 /t ?4(rN1?-?? 01 SPE SEPTIC EVALUATION PUMP & EVALUATE, 495.00, SEC FOUND NO MALFUNCTION OR VIOLATIONS rm r - a, y9 Alf frod-re 12e?u sq %??l+?o?n w C"- ?/ Si 6JL F,Ylri ; tti B ? M m <5 7A,u Dgey = air s: J c -A j /S'ad 5141" d1a 694?rlr ,11 74,7k 27//2 = .y;-0 Iola Ze,6 6k 3 04:, Driver: L3 "/ f 14 Truck#: /S /I Start Time: Stop time: _ Disposal: C?Sktr+M WnolO 3r 42e5?c?5,b/,- / sr Cri7/"t4 fv Jc/3 L'i2 L0'Id /7jk Dp CC TOTAL AMOUNT DUE : yy5 AMOUNT PAID HEC R CASH RECEIVED BY %1` yGk In't v/d ;?C' THANK YOU FOR YOUR VALUED PATRONAGE ALL INVOICES OVER 30 DAYS LATE INCUR A FINANCE CHARGE OF 18.0%/yr or A MINIMUM CHARGE OF 5.00 PER INVOICE VERIFICATION We verify that the statements made in the foregoing Answer to Complaint in Equity With New Matter are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. Z--?L Date 2 Date T-6rd Krirte ° - tacy Kline I CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer to Complaint in Equity With New Matter upon Plaintiffs by depositing same in the United States Mail, first class, postage pre-paid on the 4th day of November, 2005, from New Cumberland, Pennsylvania, addressed as follows: Gregory J. Katshir, Esquire 900 Market Street Lemoyne, PA 17043 Attorney for Plaintiffs ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants t ?7 ?r 2 , ? N KENDALL PARLETTE and : IN THE COURT OF COMMON PLEAS OF CHARLOTTE PARLETTE : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. : NO. 05 - 5065 CIVIL TERM TODD KLINE and : IN EQUITY STACEY KLINE Defendants REPLY TO NEW MATTER AND NOW, come the Plaintiffs Kendall Parlette and Charlotte Parlette, by and through their attorney, Gregory J. Katshir, Esquire, with the following Reply to New Matter as follows: 1. Paragraphs one through ten (1-10) of Plaintiffs' Complaint are incorporated herein as if the same were set forth in detail. 2. Paragraph eleven (11) of Defendants' New Matter is admitted to the extent that an inspection was conducted. However, Defendants' conclusions as to the content of the report is specifically denied and strict proof thereof is demanded at the time of trial. 3. Paragraph twelve (12) of Defendants' New Matter is denied. The money was placed in escrow until it could be determined if the drainfield was wet from sewage and if Plaintiffs would be responsible for repair. 4. Paragraph thirteen (13) of Defendants' New Matter is admitted. By way of further answer, Defendants consented to the inspection of the Township engineer. Mr. Moll was at Defendants' property to inspect another digging project. While at Defendants' property, he performed the inspection of the drain field. 5. Paragraph fourteen (14) of Defendants' New Matter is denied and strict proof thereof is demanded at the time of trial. 6. Paragraph fifteen (15) of Defendants' New Matter is admitted to the extent that Defendants' obtained an estimate from Associated Products. However, Defendants' conclusions as to the content of the report are denied and strict proof thereof is demanded at the time of trial. 7. Paragraph sixteen (16) of Defendants' New Matter is denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiffs request appropriate relief. Respectfully submitted, 6Katshir, Esquire for Plaintiffs PA ID#61967 900 Market Street Lemoyne PA 17043 (717) 763-8133 VERIFICATION OF KNOWLEDGE, INFORMATION AND BELIEF I verify that the facts set forth in the foregoing Reply to New Matter to are true and correct to the best of my knowledge, information and belief. I understand that false averments herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: II - IL - DS c{, "ta Kendall Parlette Date: l/- ofuc1 !?r Charlotte Parlette CERTIFICATION OF SERVICE I hereby certify that foregoing Reply to New Matter First Class mail, on November follows: Robert P. Kline, Esquire 714 Bridge Street New Cumberland PA 17070 true and correct copy of the was served upon the following via 15, 2005 postage prepaid as re Plaintiffs c.i ? PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for Jury trial at the next teen of civil court. (x) for trial without a jury. --------------------- --- ------------------------------ CAPTION OFCASE (entire caption must be stated in full) (check one) ( ) Civil Action - Law Kendall Parlette and Charlotte Parlette ( ) Appeal from Arbitration Plaintiffs ( X ) Equity - Pursuant to Rule 1502-1 (other) Vs. The trial list will be called on Todd Kline and Stacey Kline and Defendants ? I Trials commence on I I Pretrials will be held on (Briefs are due 5 days before pretrials) The party listing the case for trial shall provide forthwith a copy of the praecipe I to all counsel. Pursuant to Rule 214.1 1 No. 05-5065 Civil Term In Equity 2005 Indicate the attorney who will try the case for the party who files this praecipe: Gregory J. Katshir, Esquire Indicate trial counsel for other parties if known: Robert P. 'line Esquire for Defendants This case is ready for trial. Signed; _A W Print Name: 446efy khfs4,2 Date: 1 q 1116 5-- Attorney for: _ Paw(N a r-es ,.,, ' ; , _, :, KENDALL PARLETTE AND CHARLOTTE PARLETTE, PLAINTIFFS V. TODD KLINE AND STACEY KLINE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA 05-5065 CIVIL TERM ORDER OF COURT AND NOW, this 11 day of December, 2005, a non-jury trial is scheduled for Thursday, January 19, 2006, at 9:00 a.m., in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Edgar B. (Bayley, J. Gregory Katshir, Esquire For Plaintiffs Robert P. Kline, Esquire For Defendants Court Administrator /,? - - 7 o S e?-v.j 1 sal LO CJ -. c: ? X (, 17.- - 4- t> ' Y' KENDALL PARLETT AND CHARLOTTE PARLETTE, PLAINTIFFS V. TODD KLINE AND STACEY KLINE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SOLS 05 9565 CIVIL TERM PRE-TRIAL ORDER OF COURT AND NOW, this 18`h day of January, 2006, in preparation for the non-jury trial scheduled for Thursday, January 19, 2006 at 9:00 a.m. before this Court, each party is ordered to file with this Court a succinct list of findings of fact it intends to prove at trial and a list of witnesses it intends to call with a very brief synopsis of their testimony. These items shall be filed with this Court by 8:15 a.m., January 19, 2006. By the Court, c? %k i M. L. Ebert, Jr., J. Gregory Katshir, Esquire For Plaintiffs J\ I ,,1?5 m?I t£cL, l1lP,/U Robert P. Kline, Esquire For Defendants tz? Court Administrator ('` [... C"' M C,.t 1 KENDALL PARLETTE AND IN THE COURT OF COMMON PLEAS OF CHARLOTTE PARLETTE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. TODD KLINE AND STACEY KLINE, DEFENDANTSI 05-5065 CIVIL TERM ORDER OF COURT AND NOW, thi? 10t" day February, 2006, after trial in the above captioned case, the Court enters judgment in favor of the Plaintiffs and directs James A. Miller, Esquire to disburse the $20,000.00 he i presently holding in escrow to the Plaintiffs, Kendall and Charlotte Parlette. By the Court, 44?A M. L. Ebert, Jr., j, Gregory Katshir, Esquire For Plaintiffs Robert P. Kline, Esquire /y BG For Defendants J Court Administrator - K,-Pw James A. Miller, Esquire bas Ij G KENDALL PARLETTE and CHARLOTTE PARLETTE, Plaintiffs V. TODD KLINE and STACEY KLINE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. 05-5065 CIVIL TERM IN EQUITY DEFENDANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL Pursuant to Pa.R.C.P. 227. 1, Defendants, Todd Kline and Stacy Kline, through their undersigned counsel, move the Court for the entry of judgment in their favor notwithstanding the verdict of the Court and against the Plaintiffs, Kendall Parlette and Charlotte Parlette or, in the alternative, for a new trial, and in support aver the following: 1. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT The following facts were uncontradicted at trial: (A) Defendants proceeded to settlement based on the representations, upon which they justifiably relied, that the septic problem that existed prior to settlement, and continues to exist to this date, would be corrected from the escrow proceeds. (B) The sum of $20,000.00 was escrowed from Plaintiffs' settlement proceeds for the purpose of correcting the septic problem identified prior to settlement by Dillsburg Septic & Excavating, Inc.. (C) As of the date of the trial, the septic problems identified prior to settlement have not been corrected and, in fact, may have become worse. 2. Reliance upon the opinion of Gregory Moll, P.E., the Township Engineer, is faulty, at best, based upon Mr. Moll's limited knowledge of this particular system, the fact that his inspection was limited to the specific portion of the system identified as a problem by Plaintiffs and did not encompass the entire system, and that even Mr. Moll agrees that a problem existed with the system as of the date of trial. The only estimate presented at trial to complete the work necessary to repair the septic system was the estimate provided by Associated Products, Inc. and other related figures submitted by Defendants in the total amount of $10,683.00. 4. As a matter of law, given the uncontradicted facts adduced at trial, Defendants, Todd Kline and Stacy Kline, are entitled to judgment in their favor. Defendants, Todd Kline and Stacy Kline, reserve the right to file additional grounds supporting this Motion after receipt, review and analysis of requested portions of the trial transcript. WHEREFORE, Defendants, Todd Kline and Stacy Kline, request that the Court enter judgment in their favor notwithstanding the verdict and direct that the sum of $10,683.00 be paid from the escrow proceeds toward the repair of the septic system and related expenses. IL MOTION FOR NEW TRIAL The verdict was manifestly against the weight of the evidence, and in support thereof, Defendants state: (A) Defendants proceeded to settlement based on the representations, upon which they justifiably relied, that the septic problem that existed prior to settlement, and continues to exist to this date, would be corrected from the escrow proceeds. (B) The sum of $20,000.00 was escrowed from Plaintiffs' settlement proceeds for the purpose of correcting the septic problem identified prior to settlement by Dillsburg Septic & Excavating, Inc.. (C) As of the date of the trial, the septic problems identified prior to settlement have not been corrected and, in fact, may have become worse. Reliance upon the opinion of Gregory Moll, P.E., the Township Engineer, is faulty, at best, based upon Mr. Moll's limited knowledge of this particular system, the fact that his inspection was limited to the specific portion of the system identified as a problem by Plaintiffs and did not encompass the entire system, and that even Mr. Moll agrees that a problem existed with the system as of the date of trial. 3. The only estimate presented at trial to complete the work necessary to repair the septic system was the estimate provided by Associated Products, Inc. and the other related figures submitted by Defendants in the total amount of $10,683.00. 4. Defendants, Todd Kline and Stacy Kline, reserve the right to file additional grounds supporting this Motion after receipt, review and analysis of requested portions of the trial transcript. WHEREFORE, Defendants, Todd Kline and Stacy Kline, request that the Court grant Defendants a new trial. Respectfully submitted, 22 4z)e6 Zoo co P ,0 DATE ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Motion For Judgment Notwithstanding The Verdict or, in The Alternative, For a New Trial, upon Plaintiffs by depositing same in the United States Mail, first class, postage pre-paid on the 11 c? day of February, 2006, from New Cumberland, Pennsylvania, addressed as follows: Gregory J. Katshir, Esquire 900 Market Street Lemoyne, PA 17043 Attorney for Plaintiffs ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants _._, ' , -; ` .? :?; ?-??? <:. = ;_ . ,°? _ ?::? KENDALL PARLETTE AND : IN THE COURT OF COMMON PLEAS OF CHARLOTTE PARLETTE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. TODD KLINE AND STACEY KLINE, DEFENDANTS 05-5065 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR JUDGMENT NOT WITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL ORDER OF COURT AND NOW, this 24th day of February, 2006, after consideration of the Defendant's Motion, the Motion is DENIED. The Court's previous verdict and order of court dated February 10, 2006 is AFFIRMED. By the Court, M. L. Ebert, Jr., J. Gregory Katshir, Esquire For Plaintiffs Robert P. Kline, Esquire For Defendants Court Administrator James A. Miller, Esquire 4-7-06 0 MLE/bas KENDALL PARLETTE and CHARLOTTE PARLETTE Plaintiffs VS. TODD KLINE and STACEY KLINE Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 50 b< NO. 05-a563 CIVIL TERM IN EQUITY ANSWER TO DEFENDANTS' MOTION PURSUANT TO Pa. R.C.P. 227.1 AND NOW, come the Plaintiffs Kendall Parlette and Charlotte Parlette, by and through their attorney, Gregory J. Katshir, Esquire, with the following Answer and avers as follows: MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT 1. Paragraph one (1 A - C) of the Defendants' motion is denied. The facts as set forth by Defendants' were certainly contradicted during trial. Credible evidence was presented by Gregory Moll P.E. of Upper Allen Township that indicated that the complained of septic problem did not exist several months after the date of settlement. Defendants' and their experts were unable to demonstrate that any problem that may exist to date, in fact, existed at the date of settlement. Defendants' expert, Mr. Miller of Dillsburg Septic, indicated that no crack existed in the septic tank at the time of inspection prior to settlement. Defendants' expert, Mr. Marks of Associated Products, testified that he believed there is a crack in the septic tank, but was unable, however to determine when the crack occurred. He testified that he did not inspect the tank or field in 2004, but did so in 2005. He testified that the tanks have an approximate useful life of 25 years and admitted that the crack could have occurred sometime after settlement. 2. Paragraph two (2) is denied. Mr. Moll is a qualified profession who has been employed by Upper Allen Township for over a decade as its sewage enforcement officer. Mr. Moll inspected the complained of area on several occasions and found no problem with the septic system. Any problem that may currently exist with the system was not present at the time of settlement. 3. Paragraph three (3) is admitted. However, by way of further answer, no problem existed at the time of settlement for which Plaintiffs would be responsible. 4. Paragraph four (4) is denied. As indicated, the facts as set forth herein by Defendants' were certainly contradicted at trial. The case revolved around the issue of fact to which the fact finder has discretion. Reasonable minds could differ as to whether a problem with the septic system existed at the time of settlement. Further, Defendants raise no issue of law that can support their request for judgement in their favor 5. Paragraph five (5) is denied. WHEREFORE, Plaintiffs request this Honorable Court to deny Defendants' Motion for Judgment Notwithstanding the verdict. MOTION FOR NEW TRIAL 1. Paragraph one (1 A-C) is denied. As indicated above, credible evidence was presented at trial that indicated that no problem existed with the septic system at the time of settlement. Defendants' own experts testified that they could not determine when any problem occurred that might exist today. The weight of the evidence was clearly in favor of Plaintiffs as was determined by this Honorable Court. There was no factual or legal mistake of this Honorable Court that would warrant a new trail. 2. Paragraph two (2) is denied. Mr. Moll inspected the system on several occasions and found the system working properly. Mr. Miller of Dillsburg Septic inspected the septic tank in 2004, prior to settlement, and found no problems. Mr. Marks of Associate Products inspected the septic tank in 2005 and indicated he found a problem. However, he could not determine if that problem occurred prior to or after settlement. He did not inspect the system prior to settlement in 2004. 3. Paragraph three (3) is denied as set forth in the answer to Paragraph three (3) above. 4. Paragraph four (4) is denied. WHEREFORE, Plaintiffs request this Honorable Court to deny Defendants' request for a new trial. Respectfully atshir, Esquire Plaintiffs CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer to Motion Pursuant to Rule 227.1 was served upon the following via First Class mail, on 74? 7 6 G , postage prepaid as follows: Robert P. Kline, Esquire 714 Bridge Street P.O. Box 461 New Cumberland PA 17 70 Greg (6r Katshir, Esq Attor ey for Plaintiffs ?. ,, ; ?.? r? ?:? ?. ?- ?, ,, ,; Curtis R. Long Prothonotary office of the i3rotbonotarp Cutnberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 0,5'- ,505 CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573