HomeMy WebLinkAbout06-0148
II
GRACE BONNIE NEFF,
Plaintiff
Defendant
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
VS,
CIVIL ACTION - LAW
QUIET TITLE
KENNETH ROCKY,
NO. ,'ii)()&- I 'If:" c'" I
NOTICE
TO DEFENDANT NAMED HEREIN:
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH
IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS
COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR
BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO
THE CLAIMS SET FORTH AGAINST YOU, YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE
CASE MAY PROCEED WITHOUT YOU, AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE
COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY
OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY
OR OTHER RIGHTS IMPORTANT TO YOU,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 249-3166
-1-
II
Defendant
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
GRACE BONNIE NEFF,
Plaintiff
vs,
CIVIL ACTION. LAW
QUIET TITLE
KENNETH ROCKY,
NO, (Ie:;. 1'If' (C-<-<~j Tv--
COMPLAINT TO QUIET TITLE
AND NOW comes the above-named Plaintiff, by her attorney, Samuel L, Andes, and
files the following Complaint to Quiet Title to real property situate in the Borough of
Lemoyne, Cumberland County, Pennsylvania, aLL based upon the foLLowing:
1, The Plaintiff is Grace Bonnie Neff, an adult individual who resides at 117 Walton
Street, Lemoyne, Cumberland County, Pennsylvania,
2, The Defendant is Kenneth Rocky, an adult individual who resides, to the best of
Plaintiff's knowledge, at 103 Dawn Drive, Carlisle, Cumberland County, Pennsylvania,
3, In October of 2001, Plaintiff was the sole owner of real estate situate in the
Borough of Lemoyne, Cumberland County, Pennsylvania, together with improvements erected
thereon known and numbered as 117 Walton Street, aLL of which are more particularly
bounded and described in Exhibit A which is attached hereto (hereinafter, the "Property"),
4. By an Installment Sales Agreement dated 11 October 2001, a copy of which is
attached hereto and marked as Exhibit B (hereinafter, the "Agreement"), Plaintiff agreed to
-2-
. II
sell the Property to the Defendant in exchange for payment of a specified consideration in
various installments, all as more specifically set out in the Agreement.
5, Defendant failed to perform his obligations under the Agreement by failing to make
the payments as due c>.nd, by doing so, breached the Agreement between the parties,
6, As a result of Defendant's breach of the Agreement, Plaintiff terminated the
Agreement and Defendant's rights in the Property. Despite repeated requests and demands
by Plaintiff, however, Defendant has failed to execute a document formally terminating his
interest in the Agreement or acknowledging the termination of the Agreement,
7, The Agreement was recorded in the Recorder of Deeds Office in and for
Cumberland County, Pennsylvania, in Mise, Book 681 at Page 3743. As a result, until a
document is filed terminating absolutely the Defendant's rights under the Agreement, the
Agreement creates and represents a cloud on Plaintiff's title to the Property,
8, Defendant, by refusing to execute a document formally terminating his rights
under the Agreement, has injured Plaintiff by continuing a cloud on the Property and, by
continuing in his failuFe and refusal to execute such an agreement, continues to injure
Plaintiff and her interest in the Property,
9. Defendant's conduct in this matter has been arbitrary, vexatious, and in bad faith,
As a result, Plaintiff is entitled to recover her attorney's fees in this matter.
10. Plaintiff anticipates that her fees to conclude this matter and quiet the title to
the Property will exceed $1,000,00,
-3.
. II
WHEREFORE, Plaintiff prays this Court to:
A, Decree that the Agreement is null and void because the Defendant
has breached it; and
B. Decree that Plaintiff is the sole owner of the Property; and
C. Award Plaintiff her attorney's fees in this matter, in the amount of
$1,000,00 or more; and
D, Order and decree such other actions as the Court deems appropriate
and necessary to adjudicate and resolve this case,
~GJQ~
Samuel L, Andes
Attorney for Plaintiff
Supreme Court ID 17225
525 North 12th Street
Lemoyne, PA 17043
(717) 761-5361
-4-
. II
I verify that the statements made in this document are true and correct, I understand that
any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904
(unsworn falsification to authorities),
DATE:
l-~1..16 / OS
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OUlT -CLAIM DEED
THIS INDENTURE
MADE this 13th day of October, 2004.
BETWEEN KENNETH ROCKY of 117 Walton Strcet, Lemoyne, Cumberland
County, Pcnnsylvania 17043, Party ofthc First Part, Grantor
-AND-
GRACE BONNIE NEFF, adult individual of2165 York Road, Dovcr, York County,
Pennsylvania 17315, Party ofthc Sccond Part, Grantec.
WITNESSETH, in consideration of thc sum of Onc and 00/100 ($1.00) Dollar, rcceipt
whcreof is hcreby acknowlcdgcd, KENNETH ROCKY, the said Grantor, docs hcreby rclcasc
and quit claim to the said Grantcc, GRACE BONNIE NEFF, her successors and assigns, all
thosc certain tracts or parcels of real estatc situatcd and being located in Borough of Lemoyne,
Cumberland County, Pennsylvania, morc fully boundcd and describcd on Exhibit "A,"
attachcd hcreto and made a part hcreof.
TOGETHER with all buildings, improvcments, woods, ways, rights, libcrties, privilegcs,
hcreditaments and appurtcnances, to thc samc bclonging, or in any way appertaining, and any
revisions, rcmaindcrs, rents, issues and profits thercof, and of evcry part and parcel thercof,
including any intcrests spccifically sct forth on Exhibit "A," if any. And also, all the estatc, right,
title, intercst, property, posscssion, claim and dcmand whatsoevcr, both in law and cquity, of the
Grantor of, in and to thc same.
TO HAVE AND TO HOLD the said prcmiscs, and thc appurtcnanccs, hcreby granted to
Grantee and Grantec's hcirs, successors and assigns, to and for the only propcr use, bencfit and
bchalf of the said Grantec and Grantce's heirs, succcssors and assigns forcvcr, under and subjcct
to the conditions set forth on Exhibit "A," if any.
IN WITNESS WHEREOF, the said Grantor has hercunto sct his hand and scal thc day
and year first abovc written.
WITNESS:
Kenneth Rocky
Plaintiff's Exhibit
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COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF DAUPHIN
On thc 13th day of October, 2004, bcforc mc, a Notary Public in and for said County and
Statc, thc undcrsigned officcr, personally appeared KENNETH ROCKY, known to mc (or
satisfactorily proven) to be thc pcrson whose namc is subscribcd to the within instrument, and
acknowledged that hc exccuted the same for the purposcs thercin contained, and dcsircd thc same
might bc rccorded as such.
IN WITNESS WHEREOF, I hercunto sct my hand and official scal.
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Notary Public
NOTARIAL SEAl
CHRISTINA L, NICHOLAS, fiolary Public
Susquehanna Twp., Dauphin County
My CommisSion Expires June 20, 2005
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CERTIFICATE OF RESIDENCE
I hercby certifY that the precisc residence of the Grantec is;
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Attomcyl Agcnt for Grantec
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RECORDED in thc Officc
Pcnnsylvania in Record Book
and Scal of Office, this
of Dccds in
and for Cumberland County,
WITNESS my Hand
,200_.
Recorder of De cds
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ALL THOSE CERTAIN tracts or parccls ofland situatc in thc Borough ofLcmoync, County of
Cumbcrland and Commonwcalth of Pennsylvania, boundcd and dcscribcd as follows, to wit;
TRACT NO.1:
BEGINNING at the northeast corner ofWarrcn and Walton Streets; thcncc eastwardly along thc
northcrn sidc of Walton Strcct, 60 fect to a point; thence northwardly on a line parallcl with
Warren Street, 100 fcct to a point; thencc wcstwardly at right angles with Warren Strcet, 60 fect
to the eastern side of Warren Strcet; and thcncc southwardly along Warrcn Strect, 100 feet to thc
placc ofBEGINNlNG.
HAVING THEREON ERECTED a dwelling house known as No. 117 Walton Strect,
Lemoync, Pcnnsylvania 17043.
BEING Lot No. 439 on a Plan of Lots laid out for R.R. Baugher, known as Rcplat ofthc Walton
Quarry Plot.
UNDER AND SUBJECT to casements, restrictions, rights-of-way or othcr mattcrs of prior
rccord.
BEING THE SAME PREMISES WHICH John Neff and Gracc Bonnie Neff, husband and
wife, by their Dccd datcd Octobcr 19, 1994 and rccorded January II, 1995 in the Office ofthc
Rccordcr of Dceds of Cumbcrland County, Pcnnsylvania, in Decd Book 117, Page 476,
transfcrrcd and convcyed unto John Neff.
TRACT NO.2:
BEGINNING at the northeast corncr of Warren and Walton Strccts; thcncc northwardly along
thc castcrn sidc of Warren Strcct, 100 feet to a point; thcncc wcstwardly 15 fcet to a point in thc
centcr of a proposcd strcet known as Warrcn Strect; thence southwardly 100 fcet to a point on the
north side of Walton Street; thcnce eastwardly 15 fcct to thc southwest corncr of 201 Walton
Strcct, the placc of BEGINNING.
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Neff to Rocky ;sc scnlre
'01 OCT 16
PFl 1 11
INSTALLMENT SALES CONTRACT
THIS AGREEMENT is madc this 11th day of Octobcr, 2001, by and bctwecn GRACE
BONNIE NEFF, of 117 Walton Strcct, Lemoyne, Cumberland County, Pennsylvania 17043,
hereafter "Scller" and Grantor
-and-
KENNETH ROCKY, singlc man, 415 9th Street, Ncw Cumbcrland, Cumbcrland County,
Pcnnsylvania, 17070, hcreafter "Purchaser" and Grantec
WHEREAS, Scllcr is the record owner of thc premiscs known and numbered as 117
Walton Strcct, Lcmoyne, Cumbcrland County, Pennsylvania, and more particularly describcd on
Exhibit "A"; and
WHEREAS, Scller desircs to sell and Purchaser agrces to purchase said real cstate undcr
and subjcct to the terms and conditions hcrcinaftcr provided; and
WHEREAS, thc partics dcsire to confirm their undcrstanding in writing.
NOW THEREFORE, the partics hereto, intcnding to bc legally bound hcreby, agree as
follows:
1. REClT ALS. The recitals sct forth above arc incorporatcd hercin by rcfcrence.
2. PREMISES. Scller agrccs to sell to Purchascr and Purchaser agrees to purchasc
and accept the convcyance from Scllcr of all and singular that certain parccl or tract of land and
premises situatc in Lcmoync Borough, Cumbcrland County, Pennsylvania, as more particularly
dcscribcd on Exhibit "A", attachcd hereto and made a part hercof, and known and numbered as
I 17 Walton Strcct, Lcmoyne, Cumberland County, Pennsylvania 17043.
For no additional consideration, Scller also agrccs to scll to Purchascr any
interest that shc may havc in thc real prcmiscs that arc dcscribcd on Exhibit "B", attached hcrcto
and made a part hcrcof.
3. CONSIDERATION. Purchascr agrees to pay to Seller as consideration or pricc
for thc said premiscs the sum of Ninety Thousand and 00/100 ($90,000.00) Dollars.
I
BUDX 681 FAGE:r743
Plaintiff's Exhibit
B
4. PAYMENT OF PURCHASE PRlCE. Purchascr shall pay to Sellcr thc sum of
Nincty Thousand and 00/100 ($90,000.00) Dollars as follows:
a. Tcn Thousand and 0011 00 ($10,000.00) Dollars at or before the signing and
dclivery of this agreement, rcccipt of which is hcrcby acknowlcdged; and
b. The balancc of Eighty Thousand and 0011 00 ($80,000.00) Dollars, amortized ovcr
a term of thirty (30) ycars, with intcrcst computcd at the ratc ofninc (9%) perccnt pcr annum on
the unpaid principal balance, in cqual monthly installmcnts of Six Hundrcd Forty Three and
701100 ($643.70) Dollars, beginning on Novembcr 1,2001, and monthly thercafter until paid in
full. Intcrest shall bc dcducted first from cach paymcnt and thc balancc applied to the rcduction
of principal. Purchaser may, at any time, prcpay the balancc hereundcr without penalty. Time is
of the essence for all payments required hereunder including principal payments, interest
payments, real estate tax payments, insurance paymcnts, etc" etc" etc. This Installment Sales
Contract and a Promissory Note shall sccure said balance of thc purchasc price.
c. Purchascr shall pay a latc chargc equal to fivc (5%) pcrccnt of the principal and
intcrcst payment duc if Scllcr does not rcccivc payment by the fiftccnth (15th) day of thc month.
Nonetheless, this provision shall not bc construed to allow late paymcnt. AlIlatc chargcs shall be
a pcna1ty and not applicd against the rcduction of principal or the paymcnt of intcrcst.
d. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE
ENTIRE REMAINING PRINCIPAL BALANCE AND ALL ACCRUED INTEREST
SHALL BE DUE AND PAYABLE SIXTY (60) MONTHS FOl,LOWING SETTLEMENT,
5. TITLE. When the purchase pricc is paid in full, Seller agrces to dcliver to
Purchaser said prcmiscs by deed of spccial warranty, free and clcar of all licns, encumbrances,
and easements, cxccpting easements, rights-of-way, and restrictions of record which are visib1c
on inspection, cxisting building restrictions and ordinances, othcrwise titlc shall bc good and
marketablc or such as will be insured by a reputablc title insurancc company doing business in
Pcnnsylvania at thcir rcgular rates.
Buycr acknowlcdges that a rcasonable opportunity has been cxtcnded for Buyer to
examinc thc titlc, and by executing this agreemcnt Buyer acknowledges that the condition of the
titlc is satisfactory to Buycr and that Buyer shall not rcfuse to discharge any obligation to Seller
hcreunder on thc basis of objections to thc title unlcss such objcctions arise as a rcsult of
transactions occurring subsequent to thc datc of this agrcement or as the rcsult of matters not
recordcd by thc datc of this agreemcnt.
6. PAYMENT. All paymcnts, obligations, fces, chargcs, noticcs or any other items
to bc given from Purchascr to Scllcr shall be delivcrcd to Sellcr at the following addrcss;
Bonnic G. Ncff
2165 York Road, Dovcr, PA 17315
or at any modification thereof provided in writing to Purchaser from Scllcr.
2
BOD~ 681. fAGE3"744
7. POSSESSION & OCCUPANCY. Purchaser shall bc cntitled to posscssion of
the prcmises upon cxecution of this Agrccment and thc paymcnt of any monics rcquired at thc
time of or prior to the exccution hercof. Continued possession is subjcct to compliancc by
Purchaser with the terms and conditions of this agreemcnt.
8. APPORTIONMENT. It is undcrstood that until thc dccd is rccorded, all tax bills
will be issucd in the namc of Seller, howcvcr, it will bc the responsibility of Purchascr to either
pay the tax bill dircctly or reimbursc Scller for any taxes paid upon proof of paymcnt presented
from Scllcr to Purchaser. It shall bc the responsibility of Scllcr to pay all rcal estatc taxes, water
rcnts, scwer rcnts, rcfusc changes, municipal assessments, and othcr charges now lcvied on thc
prcmises prior to scttlcmcnt or date of Purchaser's posscssion, whichcver shall first occur. All
rcal estate taxcs, rcnts, water rcnts, scwcr rents, rcfusc charges, municipal assessments,
municipal utilitics and othcr chargcs in relation to thc rcal cstate shall be proratcd as of the datc
of this agrcemcnt or datc of Purchascr's posscssion, whichcvcr shall first occur. Watcr, sewer,
rcfuse, municipal utility chargcs or any othcr fees, chargcs, costs, or asscssments which may
becomc a licn on the premiscs which is the subjcct of this Agrecmcnt shall bc paid by Purchascr
hcrcinaftcr. Further, Purchascr shall provide Scllcr with proof of payment of all itcms requircd to
bc paid by Purchaser undcr this Agreement within tcn (10) days of thc reccipt of a paid invoicc
or other evidencc of paymcnt and it shall bc the obligation of Purchaser to obtain a rcccipt for all
payments madc hcrcundcr at the time of payment. All chargcs rcquired to be paid hcreunder by
Purchascr shall be paid in a timcly manncr and beforc any such chargcs becomc past due, go into
dcfault or havc any pcnalty added thercto.
Failure of Purchascr to make such paymcnts requircd hcrcin as thc same bccome due and
bcfore any penalty pcriod, may be paid by Scller, and if so paid, Sellcr shall be cntitled to add to
the amount paid, intcrcst, pcnalties, and a five (5%) pcrccnt accommodation charge, all of which
sums shall bc addcd to thc ncxt monthly payment rcquircd to be madc by Purchaser undcr this
agreement pursuant to writtcn notice from Scller to Purchascr ofthc amount paid for Purchascr's
accommodation. In addition thereto, Scllcr may treat Purchaser's failure to pay such itcms on a
current basis as a dcfault under this agrccmcnt that must bc curcd by Purchascr within thc time
hereinaftcr sct forth.
9. ESCROW. Notwithstanding anything to the contrary hcrcin containcd,
Purchascr agrccs to pay Ninety-Two and 67/1 00 ($92.57) Dollars per month, on thc due date for
cach monthly payment, to be hcld by Seller as an escrow for paymcnt of rcal estatc taxcs.
Further, Purchaser agrees to pay an additional sum of Twcnty Thrcc and 25/100 ($23.25)
Dollars, on thc due datc for cach payment to be held by Seller as an escrow for payment of
insurance prcmiums. Thc sums rcquired hcrcin to bc paid may be from time to time, incrcascd or
dccrcascd, in conjunction with incrcasc or decrcasc in real cstatc taxcs and insurance prcmium.
Thc funds shall bc held by Seller in a non-intercst bcaring account and Seller agrees to pay the
real cstate taxes when billcd and during the discount period. Adjustments for overpayment or
undcrpayment of taxes shall be adjusted at the end of each calendar ycar by notice, from Seller.
At the timc of thc cxccution of this Agrccmcnt, Purchascr shall pay an cscrow to Seller for thc
taxcs to bc fcvicd for the next tax billing pcriods.
3
BOOK 681 fAGE:r745
Ie. REALTY TRANSFER TAX. All realty transfer taxes shall bc divided cqually
betwcen the parties hcrcto and shall bc paid at thc time a Dccd is dclivercd to Purchaser for
rccordation.
II. INSURANCE (Fire, ctc.). Purchascr agrces to kecp thc prcmises herein
conveyed insured for fire, storm and casualty covcrage, paid in advance, with any reliable
insurancc company Iiccnscd to do busincss in thc Commonwealth of Pcnnsylvania, acceptable to
Sellcr, in thc amount cqual to at least the One Hundred (100%) per ccnt replacemcnt value ofthe
premises, Scllcr and Purchascr as their intcrest may appear.
In the cvcnt fire or storm damage to thc premiscs should occur, all monies rcceivcd from
any insurancc company shall be applicd first to rcasonable rcpair of said damages and monics in
exccss thercof shall bc paid to Scllcr to be applicd to the unpaid purchase pricc.
12. INSURANCE (Liability). Purchascr agrees to keep thc premises hcrcin
convcyed insurcd with comprchensivc gcneral and contractual, liability insurance, with Scllcr
namcd as additional insured, in the policy limits of Three Hundred Thousand and 00/100
($300,000.00) Dollars for personal injury and One Hundred Thousand and 00/1 00 ($100,000.00)
Dollars for propcrty damage.
13. INSURANCE (Miscellaneous). (a) Copics of all policies rcferred to
hercin shall bc marked or endorscd in such manncr that Scller shall bc notificd of thc
canccllation or thrcat of cancellation of any policy at least thirty (30) days beforc the policy is to
bc canceled.
(b)
Purchascr.
All policies will be endorscd with notations as to the interests of Sellcr and
( c) Failurc to obtain or maintain thc aforcsaid insurancc policies shall be considcrcd
default in thc tcrms of this Agrcement.
(d) Copics of all policics shall bc delivcrcd to Scllcr.
(e) It is understood that thc prcmises may be insured in the name of Sellcr and Seller
may pay the insurancc premiums dircctly. In that cvent, Purchascr agrccs to rcimburse Scllcr for
any insurance prcmiums paid upon prcscntation by Seller to Purchascr of a paid insurancc
reccipt.
14. MAINTENANCE & REPAIRS. It is agrced that Purchaser has inspected the
prcmiscs, find it in good condition and acccpt it "as is" without rcliance upon opinions or
rcprescntations of Scllcr. The Sellcr makcs no warranty as to thc adequacy of cxisting sewcr or
water facilities and all warranties, expressed or implied, are hercby disclaimed and Purchaser
acknowfedges thc same and agrccs to accept the samc "as is". The present "as is" condition will
bc maintained by Purchaser who shall assumc and be responsible for the maintenance and repair
of the prcmises from thc date hcrcof, and shall keep and hold Seller safe and harmless from any
and all claims for work and labor done or matcrials furnished in conncction with maintaining thc
4
BOOr. 681 FAGE :3"746
said premiscs in good ordcr and rcpair, all as otherwise providcd hcrcin. Purchascr agrecs that
thcy will, at thcir own cxpensc, maintain. thc prcmises in a good statc of rcpair and in a good
condition at all timcs and will not pcrmit any wastc or disrepair to occur. Purchaser agrces to
comply at all timcs with all applicablc housing codc, safcty codc, or other govcrnmcntal
rcquircmcnts, or requiremcnts imposed by any insurancc company to maintain insurancc
coverage for the said propcrty. Purchascr has been provided with a written Seller's Disclosure
Statement.
15. IMPROVEMENTS & ALTERATIONS. No major improvcmcnts or
altcrations, nor any structural improvements or altcrations, shall be madc to thc premises without
the prior written conscnt of Scllcr, which conscnt shall not bc withhcld unreasonably. No
improvcmcnts shall bc madc to thc prcmiscs until such timc as a Stipulation Against Liens or
comparablc document is recordcd with thc Prothonotary of Cumbcrland County, Pcnnsylvania.
Purchascr agrccs that Scller or Sellcr's agcnt or agcnts shall havc thc right at all rcasonablc times
of the day and upon reasonable notice undcr the circumstanccs to cnter the premises for the
purpose of inspcction to detcrmine whether Purchasers have complied with all of thc tcrms of
this Agreemcnt. In thc cvcnt of Purchaser's default as to any term of this Agreemcnt, any and all
improvements and additions made to the prcmises, at Seller's sole option, shall bc and rcmain as
a pcrmanent part of thc prcmiscs and shall not bc rcmovcd by Purchascr and Purchaser will not
be entitlcd to any rcimbursement thcreforc; ncvertheless, if such improvements, alterations or
additions are made without thc writtcn prior approval of Scllcr, Purchascr will, at thc sole option
of Scllcr, rcmovc the same within tcn (10) days, upon writtcn noticc from Scller, to do so. In the
cvcnt of such notice to removc itcms, Purchascr will rcpair thc surfaccs from which such items
or improvcments were removcd in conformity with the surrounding surfaccs.
Purchascr shall not permit any mechanic's claim or lien to be placcd upon the premises or
any building or improvement constituting a part thcrcof and in casc of thc filing of any such
claim or lien, Purchascr will promptly discharge same or procure a lien or rclcase bond with a
good and sufficicnt surcty company in an amount cqual to onc and onc-half (1 1/2) timcs thc
amount of the claim or thc licn. If dcfault in discharge thereof or procuring a bond shall continue
for a pcriod of twcnty (20) days aftcr scrvice of the mcchanic's claim or licn, Seller shall havc thc
right and privilcgc of paying thc same or any portion thcrcof without inquiry as to the validity
thercof, andlor of dcclaring this agrccmcnt in dcfault, without any further noticc rcquirements to
Purchaser.
16. ASSIGNMENT OF SALE. This Agrccmcnt may not be assigned by Purchaser
without thc prior writtcn approval of Scllcr which may bc withhcld at Sellcr's solc option; nor
may thc prcmiscs bc sold by Purchascr by means of an Installmcnt Salcs Contract or comparable
documcnt without the prior written approval of Seller; providcd, that nothing containcd in this
paragraph shall be construed as a prohibition against the salc of thc prcmises by Purchascr to a
third party whcrcby Scllcr rcccivcs thc full considcration statcd herein and is paid in full.
17. INSPECTION & WARRANTY AS TO USE/OCCUPANCY. Seller warrants
that the prcsent usc of thc prcmiscs is in conformity with federal, statc and local laws rclativc to
zoning. Seller makes no warranty or reprcsentation as to thc conformity of any future use or
occupancy of the subject premises insofar as fedcral, statc or local laws are conccrncd relative to
5
~OOK 68t fAGE3747
zoning, bolilding or othcr laws, ordinances or codes. In thc cvent that Purchascr wishcs to obtain
approval of any change of use or occupancy, Scllcr agrecs to cooperatc to a reasonable degrec
with such application or requcst, providing all costs associated therewith shall bc bornc by
Purchaser. Purchaser has inspccted thc prcmiscs and acknowledgc that there arc no
reprcsentations which havc been made by Seller or any othcr pcrsons, as to condition or any
othcr matter nor is Purchaser rclying on any rcprcsentation in cntering into this transaction
exccpt as sct forth hcrcin. Purchaser is purchasing thc prcmiscs in "as is" condition. Scllcr
warrants that Scller has not receivcd any notice of any violation of any govcrnment regulations.
Purchaser is advised that the prcmises are serviccd by a privatc water system and by a
public scwer system.
18. CONDEMNATION. In thc cvent of condemnation of the premiscs or any portion
thereof by any govcrnmental agcncy, public authority or utility prior to the payment of all thc
obligations set forth hcrein from Purchaser to Scllcr, thc paymcnt of damages for thc "taking"
shall bc divided bctween Purchaser and Scller as thcir respcctive intcrests may appear.
19. DEFAULT. Any failurc of Purchaser to make payment of any monics requircd
by this Agreement within fiftccn (15) days aftcr thc due datc for such paymcnt, or thc
performancc of any act forbiddcn by this Agrccmcnt, or the failurc to pcrform any act requircd
by this Agreemcnt, shall constitutc a default at thc option of Sellcr. In the casc of default by
Purchaser, Scller shall rctain any and all monies rcccived under thc provisions of this Agrcement,
whethcr on account of purchasc price or otherwisc, as compcnsation for Purchaser's use and
occupancy of said prcmises to thc datc of breach. IN DETERMINING DEFAULT, TIME IS OF
THE ESSENCE. Thc rctention of monies receivcd hercunder by Seller shall not limit any other
right or claim of Sellcr hercundcr or at law.
20. CONFESSION OF JUDGMENT, In the cvent of default of any payment of
any sum of principal or interest, or other charge, fee or amount herein agrced to be paid
for the space of ten (10) days after the same shall become due and payable by the terms
hereof, or on the breach of any other terms of this Agreement, at the option of Seller, the
whole of the principal amount remaining due shall become duc and payable forthwith,
anything herein before contained to the contrary notwithstanding. In such case of default,
Purchaser hereby authorizes and empowers any attorney of any court of record in the
Commonwealth of Pennsylvania or elsewhere to appear for Purchaser and confess a
judgment for the entire principal sum and interest remaining unpaid thereon with ten
(10%) per cent attorney's commission or fees, hereby waiving the right of exemption and
inquisition, so far as the land herein dcscribed, and any property or building thereon may
be concerned, Said Seller, at Seller's option, among other remcdies available to Seller, may
proceed by Action of Ejectment on this Agreement after default made as aforesaid for the
recovery of said premises; in such case, Purchaser hereby authorizes and empowers any
attorney of any court of record in the Commonwealth of Plmnsylvania or elsewhere to
appear for Purchaser and confess judgment of ejectment, and authorizes the immediate
issuing of a Writ of Possession and Execution (without asking leave of court) for thc costs
and ten (10%) percent attorney's commission or fees, waiving all stay and exemption laws,
Any exercise of any confession of judgment provisions herein shall not exhaust these
6
BJOK 681 FACE3748
confessio-1S of judgment rights and Seller shall continue to have the privilege of again
confessing judgment at any later date or dates,
Purchaser's Initials
At thc timc of cxccution of this Agrccmcnt, Purchasers furthcr agrcc to dclivcr to Seller,
a Quit-Claim Dccd signcd and acknowledgcd, which may be recordcd at Scller's option, aftcr
any default by Purchascrs which rcmains uncured.
21. DEFAULT BY SELLER. In thc cvcnt that titlc cannot bc conveyed by Scllcr
to Purchascr at thc time of final payment in accordancc with this contract, Purchaser shall havc
thc option of taking such titlc as Scllcr can convcy (without abatcmcnt of pricc), or of
terminating this contract and bcing rcpaid all monies paid on account of the purchasc price, less
thc rcasonable rental value of the premises, togethcr with rcasonable costs actually incurred by
Purchascr for titlc search.
22. QUIET ENJOYMENT. Seller covcnants, warrants and agrccs to allow
Purchascr to quictly and peaceably enjoy possession of thc prcmiscs frce from any interference
or interruption from them or any pcrson claiming undcr or through them, so long as Purchaser is
in compliancc with all ofthc tcrms of this Agreement and cxccpt as othcrwisc providcd herein.
23. NOTICES. Unless othcrwisc provided herein, any noticc, tcnder or dclivcry to
bc given hereunder by either party to thc othcr may bc effcctcd by pcrsonal dclivery in writing or
by certificd mail, postagc prcpaid, rcturn rcccipt requested, and shall bc dcemed rcccivcd as of
thc date of mailing. Mailed noticcs shall bc addresscd to Sellcr at thc addrcss set forth Paragraph
6 abovc, and to Purchascr at the following address:
Kcnncth Rocky
117 Walton Strcet, Lemoync, P A 17043
Nevertheless, either party hereto may changc thc address set forth herein in accordancc
with this paragraph.
24. RECORDING.
party at thc cost of Purchascr.
This Agreement may bc rccorded at thc option of eithcr
25. APPLICABLE LAW. In thc cvent of any disagrccmcnt or misundcrstanding, the
terms of this Agreement shall be construed pursuant to thc laws of thc Commonwealth of
Pcnnsylvania in cffcct at thc timc of thc cxecution hereof and as they may bc amended
subscqucntly.
26. TIME OF THE ESSENCE. Timc shall bc of the esscncc throughout this
Agrccmcnt and all of its conditions or modifications.
7
800,\ 68 t fAGE .3"749
2'i. WAIVER. Thc failurc of cither party to insist upon strict enforccment of any
provision of this Agrccmcnt shall not constitutc a waiver of the right to enforcemcnt of that
provision or any othcr provision.
28. MODIFICATION. No modification of this Agreemcnt shall be binding unlcss
the same shall bc in writing and duly approvcd by Scller and Purchascr by signing their namcs
thereto.
29. ENTIRE AGREEMENT. This documcnt contains the cntirc Agrccment
bctwcen the PURCHASER and Scller; thcre arc no rcprcsentations, warranties, covcnants, tcrms
or conditions cxcept as specifically set forth herein. Purchaser spccifically waives, rcleases and
relinquish any other claims, actions, contracts, agrccments or rights which thcy have for any
building, construction work or othcr matter for compensation" paymcnt or intcrcst in thc
prcmises or against Seller.
30. BINDING AGREEMENT. This Agrccment is voluntarily entcred into by all
parties signcd hcrcunder after cach party hercto has rcad thc same and aftcr cach party has cither
rcvicwed this Agrcemcnt with legal counscl or waivcr the right to do the same. Each party hcrcto
acknowledgcs that hc or she has read this Agrccment and undcrstands thc same. This Agreemcnt
shall extcnd to and bc lcgally binding upon thc parties hereto, their rcspective heirs, cxecutors,
administrators and assigns. This Agrccment shall bc construed fairly and not in favor of or
against, Sellcr, Purchascr, or author. All obligations, duties and liabilities crcated hercunder shall
bc joint and scveral.
IN WITNESS WHEREOF, the parties hcrcto, intending to bc legally bound, havc
cxecutcd this Agrccment thc day and year first above writtcn.
WITNESS:
~f1.~~
SELLER: ~
~~ ~~'i '\j "
GRACE BONNIE NEFF '
PURCHASER:
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6
8
cOOK G81 PAGE3750
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF DAUPHIN
On this, the ll'h day of Octobcr, 200 I, before me, thc undcrsigned officer, pcrsonally
appcared KENNETH ROCKY, known to mc (or satisfactorily provcn) to bc the person whosc
name is subscribed to thc within instrument, and acknowledgcd that hc cxecutcd the same for thc
purposes thcrcin containcd.
IN WITNESS WHEREOF, I havc hcreunto sct my hand and official scal.
~(~~-
I\J otary Public
NOTARIAL SEAL
Steve C. Nicholas, Notary Public
Township of Susquehanna, County of Dauphin
My Commission Expires Sept. 25, 2003
******
COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF DAUPHIN
On this, the 11 Ih day of Octobcr, 2001 bcfore mc, the undcrsigned officer, personally
appcared GRACE BONNIE NEFF, a single woman, known to mc (or satisfactorily proven) to bc
thc person whosc namc is subscribcd to thc within instrumcnt, and acknowlcdged that hc
cxecutcd the samc for the purposcs thcrcin containcd.
IN WITNESS WHEREOF, I havc hercunto set my hand and official scal.
k ( ;{)t/---_
,
Notary Public
NOTARIAL SEAL
Steve C. Nicholas, Notary Public
Township of Susquehanna, County of Dauphin
My C~mmisslon Expires Sept. 25, 2003
9
BOOK 681 PAGE3'?,51
ALL THAT CERTAIN tract or parcel of land situate in the Borough of Lcmoyne, County of
Cumberland and Commonwcalth ofPcnnsylvania, boundcd and dcscribed as follows, to wit:
BEGINNING at thc northcast comcr ofWarrcn and Walton Strcets; thencc castwardly along thc
northern side of Walton Strcct, 60 feet to a point; thcncc northwardly on a linc parallcl with
Warrcn Strcct, 100 fcct to a point; thcnce westwardly at right angles with Warren Street, 60 feet
to thc eastern sidc ofWarrcn Strcet; and thcncc southwardly along Warren Strcct, 100 fcet to the
placc of BEGINNING.
HAVING THEREON ERECTED a dwelling house known as No. 117 Walton Strcet,
Lemoync, Pcnnsylvania 17043.
BEING Lot No. 439 on a Plan of Lots laid out for R.R. Baughcr, known as Rcplat of the Walton
Quarry Plot.
UNDER AND SUBJECT to eascments, restrictions, rights-of-way or othcr matters of prior
record.
BEING THE SAME PREMISES WHICH John Ncff and Gracc Bonnic Ncff, husband and
wifc, by thcir Dccd dated Octobcr 19, 1994 and rccordcd January 11, 1995 in the Officc ofthc
Recorder of Dccds of Cumberland County, Pcnnsylvania, in Dccd Book 117, Page 476,
transfcrred and conveycd unto John Neff.
Exhibit "A"
10
BOOK 681 PAGE3'752
ALL THAT CERTAIN tract or parccl of land situatc in thc Borough of Lemoyne, County of
Cumberland and Commonwealth ofPcnnsylvania, boundcd and describcd as follows, to wit:
BEGINNING at the northcast corncr of Warren and Walton Streets; thcnce northwardly along
the castcrn side ofWarrcn Street, 100 fcct to a point; thencc wcstwardly 15 feet to a point in the
centcr of a proposed strcct known as Warrcn Strcct; thencc southwardly 100 fcct to a point on
the north sidc of Walton Strcct; thence eastwardly 15 fcct to the southwest corncr of 201 Walton
Strect, thc place ofBEGlNNING.
I Certi fy tl
In Cum bel
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Created: 1112/06 3.27PM
Revised; Jl12/06 3:27PM
Hillary A. Dcan, Esquirc
LD. Numbcr 92878
MARTSON DEARDORFF WILLIAMS & OTTO
Ten East High Strect
Carlisle, PA 17013
717-243-3341
Attorneys for Plaintiffs
GRACE BONNIE NEFF,
Plaintiff
; IN THE COURT OF COMMON PLEAS OF
; CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2006 - 148 CIVIL
KENNETH ROCKY,
Defendant
; CIVIL ACTION - LAW
: QUIET TITLE
PRAECIPE
To the Prothonotary;
Plcase cnter the appearancc of Hillary A. Dean, Esquire, of Marts on DcardorffWilliams & Otto
for thc Defendant.
MARTSON DEARDORFF WILLIAMS & OTTO
By .11., A Dom,; ire a j)t tJ/ JU
Attorncy LD. No. 92878
10 East High Street
Carlisle, P A 17013
(717) 243-3341
Date: January 12,2006
Attorneys for Defendant
.~
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CERTIFICATE OF SERVICE
I, Mary M. Pricc, an authorized agent of MARTS ON DEARDORFF WILLIAMS & OTTO,
hcrcby ccrtifythat a copy of the forcgoing Praccipe was servcd this date by depositing samc in thc Post
Office at Carlislc, P A, first class mail, postagc prcpaid, addressed as follows:
Samucl L. Andes, Esquire
525 North Tweffth Strcet
P.O. Box 168
Lemoync, P A 17043
MARTSON DEARDORFF WILLIAMS & OTTO
BY~') 1't. (~
Mary . Pricc
10 East High Strcct
Carlislc, PA 17013
(717) 243-3341
Dated; January 12,2006
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SHERIFF'S RETURN - REGULAR
CASE NO: 2006-00148 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NEFF GRACE BONNIE
VS
ROCKY KENNETH
BRIAN BARRICK
Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT -QUIET TITLE
was served upon
ROCKY KENNETH
the
DEFENDANT
, at 0917:00 HOURS, on the 12th day of January ,2006
at 103 DAWN DRIVE
CARLISLE, PA 17013
by handing to
DIANA ZAWATSKI, FIANCEE'S
DAUGHTER, ADULT IN CHARGE
a true and attested copy of COMPLAINT -QUIET TITLE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Postage
Surcharge
So Answers:
18.00
4.40
.39
10.00
.00
32.79
~~--'.c~
R. Thomas Kline
01/13/2006
SAMUEL ANDES
Sworn and Subscribed to before By:
me this .l6~ day of
l
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/Prothonotary .", J
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Hillary A. Dean, Esquire
1.D. Numbcr 92878
MARTS ON DEARDORFF WILLIAMS & OTTO
Tcn East High Strcet
Carlisle, PA 17013
717-243-3341
Attorncys for Plaintiffs
GRACE BONNIE NEFF,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
; CUMBERLAND COUNTY, PENNSYL VANIA
v.
; NO. 2006 - 148 CIVIL
KENNETH ROCKEY,
Defcndant
: CIVIL ACTION - LAW
; QUIET TITLE
v.
STEVE C. NICHOLAS,
Defcndant
NOTICE
You havc bccn sucd in court. If you wish to dcfend against the claims set forth in the following
pages, you must take action within twcnty (20) days aftcrthis Complaint and Noticc arc served, by cntering
a writtcn appcarance pcrsonally or by attorncy and filing in writing with the court your defcnses or
objcctions to thc claims sct forth against you. You arc warned that if you fail to do so, the case may
procccd without you and a judgment may be cntered against you by the court without furthernotice for any
moncy claimed in thc Complaint or for any othcr claim or relicf requested by the Plaintiffs. You may losc
moncy or propcrty or othcr rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LA WYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE
CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
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 REDUCE FEE OR NO FEE:
Cumberland County Bar Association
32 South Bedford Street
Carlisle, P A 17013
(717) 249-3166
F:\F1LES\DA T AFlLEIGenerallCurrerll\1 J 791.lans&cfoss
Crealed: 1/18/06 11:08AM
Revised: 2/6/06 9:35AM
~
Hillary A. Dean, Esquirc
J.D. Number 92878
MARTSON DEARDORFF WILLIAMS & OTTO
Tcn East High Street
Carlislc, PA 17013
717-243-3341
Attorneys for Plaintiffs
GRACE BONNIE NEFF,
Plaintiff
; IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
; NO. 2006 - 148 CIVIL
KENNETH ROCKEY,
Dcfendant
; CIVIL ACTION - LAW
; QUIET TITLE
v.
STEVE C. NICHOLAS,
Dcfcndant
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT,
COUNTERCLAIM AND CROSS CLAIM
I. Neithcr admittcd nor denicd. Aftcr reasonable investigation, Answering Defcndant is
without knowledge or information sufficient to form a belicf as to thc truth of the avcrmcntcontained in
Paragraph I.
2. Admittcd.
3. Admitted. By way offurthcr answcr, Dcfendant's name is spclled Rockey.
4. Paragraph 4 is denied as a conclusion of law to which no responsc is rcquircd.
5. Paragraph 5 is denied as a conclusion of law to which no rcsponsc is rcquircd.
6. Admitted in part, denicd in part. It is admittcd that thc Installmcnt Sales Contract was
tcrminated. Thc rcmainder of Paragraph 6 is denied as a conclusion oflaw to which no rcsponse is
requircd.
7. Admittcd in part, denicd in part. It is admittcd that thc Agreement was recorded in thc
Recorder of Dc cds Office in and for Cwnbcrland County, Pcnnsylvania, in Misc. Book 681 at Pagc 3743.
The rcmainder of Paragraph 7 is dcnied as a conclusion of law to which no rcsponse is required.
8. Paragraph 8 is denicd as a conclusion of law to which no rcsponse is rcquircd.
9. Paragraph 9 is denicd as a conclusion of law to which no response is required.
10. Thc avcrmcnt of Paragraph 10 is spccifically denied. Strict proof is dcmanded thcreof.
WHEREFORE, Answcring Defcndant rcqucsts this Honorablc Court to dismiss Plaintiffs
Complaint, with prcjudice.
COUNTERCLAIM
KENNETH ROCKEY v. GRACE BONNIE NEFF
11. Paragraphs 1 through 10 are hcreby incorporatcd by refcrence as though fully sct forth
hercin.
12. On Octobcr 11,2001, Kenncth Rockcy and Grace Bonnic Neff entered into an Installment
Sa1cs Contract (hcreinafter "contract") for thc sale ofthc prcmiscs known as 117 Walton Strcct, Lemoync,
Cumberland County, Pcnnsylvania. The contract price for thc premiscs was ninety thousand dollars
($90,000.00).
13. Kenneth Rockey paid ten thousand dollars ($1 0,000.00) at the time of signing, and made
monthly paymcnts toward thc purchase price in accordancc with the contract.
14. Kcnncth Rockey made 33 consecutivemonthlypaymcnts of$643. 70 towards thepurchasc
, of thc premises.
15. On or around thc month ofJune, 2004, the partics agrecd to convcy said prcmises back
to Plaintiff and thc $10,000.00 down payment would bc reimbursed to Mr. Rockey.
16. Defendant did not make monthly paymcnts toward the purchase pricc from June, 2004,
through Octobcr, 2004.
17. Dcfcndant continued to pay the homeowners insurance and the utilitics for the premises at
117 Walton Street from November, 2004 through April, 2005 at the requcst of the Plaintiff.
18. Said paymcnts ofhomeowncrs insurance and utilitics totalcd $1 ,483 .55 for the six month
period. Sec attached Exhibit "A," a truc and correct copy of thc reccipts.
19. On Octobcr 13,2004, Dcfcndant wcntto the offices of his attorney, Stcve C. Nichofas,
at Northwood Office Center, 2215 Forest Hills Drivc, Suite 37, Harrisburg, Dauphin County,
Pcnnsylvania, 17112, and signcd a Quit-Claim Decd drafted by Attorncy Nicholas.
20. Defendant believes, and therefore avers, that said Quit-Claim Deed signed by him on
October 13, 2004, terminated the contract between himself and Plaintiff.
COUNT I
21. Paragraphs 1 through 20 are hereby incorporated by reference as though fully set forth
herein.
22. Under the Installment Sales Contract, Mr. Rockey gained equity in the premises by making
33 monthly payments of$643.70 toward the purchase price.
23. Under the terms ofthe Installment Sales Contract, $80,000.00 at 9% interestona 30 year
amortization schedule reveals that Mr. Rockey paid $1 ,629.28 toward the principal of the purchase price
of the premises.
24. Further, at the time of signing said contract in October, 2001, Mr. Rockey paid
$10,000.00 towards the principal of the purchase price.
25. Mr. Rockey paid $1 ,483.55 in homeowner's insurance and utilities from November, 2004
through April, 2005.
26. Mr. Rockey is entitled by law to be compensated for the equity he gained in the premises
at 117 Walton Street, Lemoyne, Pennsylvania.
WHEREFORE, based upon the foregoing, Defendant Kenneth Rockey respectfully demands
judgment in his favor in an amount of not less than $13,112.83, together with interest and costs, and any
other remedy this court may deem appropriate.
COUNT 2
27. Paragraphs I though 25 are hereby incorporated by reference as though fully set forth
herein.
28. Plaintiffhas directly and/or indirectly received the benefit of payments of homeowners
insurance and utilities for the premises she owns at 117 Walton Street, paid for by Defendant, valued at
not less than $1,483.55.
29. In dcclining to rcimbursc Defcndant for the payment ofhomcoWllcrs insurance and utilities
he made aftcr thc contract was terminated, and for thc equity he gaincd in the premises, Plaintiffhas bcen
unjustly enrichcd in an amount of not Icss than $13,112.83.
30. Dcfendant is entitled to bc compensated for hispaymcntofhomcowners insurance, utilities,
and cquity gained in thc prcmises, for which he has not rcceivcd paymcnt.
WHEREFORE, based upon the forcgoing, Defcndant respectfully demands judgment in his favor
in thc amount of not less than $13, 112.83, togethcr with intercst thcreon and costs, and any otherrcmedy
this Court may deem appropriatc.
CROSS CLAIM
KENNETH ROCKEY v, STEVE C. NICHOLAS
31. Paragraphs 1 though 29 are hcreby incorporatcd by refcrence as though fully set forth
hcrcin.
32, Stevc C. Nicholas is a licensed profcssional attorney with offices at 2215 Forest Hills
Drivc, Suite 37, Harrisburg, Pennsylvania, 17112. Defendant Rockey is asserting a professional liability
claim against this Defcndant.
33. On or about Octobcr 11,200 I, Mr. Nicholas prepared the Installmcnt Sales Agrccmcnt
betwcen Gracc Bonnic Neff and Kcnneth Rockey for the purchase ofthc premises at 117 Walton Strect,
Lcmoync, Pcnnsylvania.
34. On or about October 13,2004, Mr. Nicholas preparcd thc Quit-Claim Dccd signed by
Defcndant Rockcy.
35. On or about Octobcr 13,2004, at his offices in Harrisburg, Mr. Nicholas adviscd Mr.
Rockcy to sign the Quit-Claim Dced that he prepared,
36. Mr. Nicholas failed to advise Mr. Rockcy of his rightto rcceive a refund ofthc cquity to
which hc was entitlcd under law,
37. Mr. Nicholas adviscd Mr. Rockcy that signing thc Quit-Claim Decd would terminatc thc
installment salcs contract bctween Mr. Rockcy and Ms. Neff.
38. Defcndant Rockey believcs, and thcrefore avers, that if the Installment Salcs Agreement
was not terminatcd bythc signing of the Quit-Claim Deed, Mr. Nicholas failcd to propcrly draftadocumcnt
suitable for this purposc.
39. Mr. Rockcy belicves, and thercforc avcrs, that if the Installment Salcs Agreement was not
tcrminated by the signing of the Quit-Claim Dced, Mr. Nicholas is responsible for thc payment of Plaintiff
Neff s fccs, including attomey' s fccs, to quict thc titlc to thc prcmiscs, ifthe Court elects to award Plaintiff
attorncy's fees.
40. Mr. Rockey believes, and thcrefore avers, that Mr. Nicholas failed to advise him of his right
to rcimburscment of cquity in the premiscs and is thereforc liable for such.
WHEREFORE, bascd on the foregoing, Dcfendant Kenneth Rockey rcspcctfully dcmands
judgment in his favor, and against Defcndant Steve C. Nicholas, in an amount of not less than $13, 112.83,
plus any fecs, including attorncy' s fces, together with costs, and any other remcdythis Court may dcem
appropriate.
MARTSON DEARDORFF WILLIAMS & OTTO
{.
By I {, t ). tL { () _ l
Hillary A. De'
Attorncy J.D. No. 92878
10 East High Strcet
Carlislc, PA 17013
(717) 243-3341
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Attorneys for Defendant
Kcnncth Rockcy
EXHIBIT A
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2005090132000398000001
IM.~GR O~
20041105 000000000024283874
00u~OOD00000036700 000000003073 0
000000005080361721
KENNETH L ROCKEY
113 t3REEN LANE DR
CAMP HILL, PA 17011-8315
,,~
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Pennsylvania American Water
P.O. Box 578, Alton IL 62002
1-800-565-7292
08/09/2005
Rocky, Ken
113 Grccn Lane Dr
Camp Hi lll7001
Account Number: 24-1337755-3
Premise Number: 240371734
117WaltonSt
Dcar Customcr;
Our rccords indicatc you are rcqucsting your lcdger history from the above mentioncd account. Bclow is
thc information requestcd, wc hope this additional information is hclpful.
Current Balance; $ 0
Bill Date:
Type;
Amount:
08 II Q4
082304
091004
09 23 04
10 1204
11 0904
111004
120804
121004
122804
12 28 04
01 ]205
021005
02 24 05
03 09 05
03 2405
04 06 05
04 1205
04 1905
06 08 05
CHG
LKB
CHG
LKB
CHG
CHG
LTC
LTC
CHG
LKB
LKB
CHG
CHG
LTC
CHG
LKB
LTC
CHG
CHG
LKB
28.24
28.24 CR
34.01
34.01 CR
28.96
27.80
.43
.85
15.65
56.76 CR
16.93CR
11.64
13.97
.17
13.97
25.61 CR
.21
12.86
5.25
32.46CR
Plcase contact our Customcr Scrvicc Ccnter at 1-800-565-7292, if we can providc additional assistance.
Rcpresentativcs are available 24 hours a day, 7 days a week for your convenicnce.
Sincerely,
Customer Scrvice
ACTSTMT
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. .
Trans Date Status Amoont.. Remaining
-j29-Au9-2005 C $3.00 $0.00
1 29-Aug-2005 0 $0.00 $3.00
'I 04-Aug-2005~- C ($37.80) $0.00
-104-AUg-2005' C ($63.00) $0.00
104-Aug-2005 0 $0.00 ($63.00)
-I 09-Jul-2005- 0 $60.00 $60.00
H-Jun-2005 C $1.80 $0.00
H-Jun-2005 C $3.00 $0.00
65862 17-Jun-2005, 0 $0.00 $4.80
"; 64893 02-May-2005 0 $96.00 $58.20
_ 19-Apr-2005 C '~$109.46) $0.00
~;; l13-APr-2005 ..; C $0.65 $0.00
.;.i 13-Ap,-2005; C $4.57 $0.00
-;tt 63611 ; 13-Apr-2005 C ~ $0.00
03-Mar-2005 Cl1:ll91.79) ) $0.00
:. 03-Ma,-2005 C~171. 76) $0.00
62708 i 02-Mar-2005,; C $96.00 $0.00
ll-Feb-2005.ii; C $12.94 $0.00
J l1-Feb-2005 i C $0.00 $0.00
04-Jan-2005 ..., C $94.00 $0.00
15-0ec-2004 .. C $7.85 $0.00
"I 15-0ec-2004 ';i C $0.00 $0.00
] 12-Nov-2004' C $94.~ $0.00
14-0ct-2004:; C $3.00 $0.00
14-0ct-2004 C $0.00 $0.00
01-Sep-2004 C $60.00 $0.00
'"I 20-Aug-2004.: C ($98.70) $0.00
19-Aug-2004. C! $4.70 I $0.00
19-Aug-2004 C $0.00 $0.00
14-Jul-2004 C $94.00 $0.00
06-Jul-2004 C ($3.60) $0.00
02-Jul-2004 C ($75.78) $0.00
" 02-Jul-2004 C ($94.94) $0.00
" 01-Jul-2004 C $7.05 $0.00
1 01-Jul-2004 C $1.25 $0.00
I 01-Jul-2004 ..- C $0.00 I $0.00
'!28-Apr-2004 .. C $94.00 $0.00
"I 28-Jan-2004 C $2.10 $0.00
-j28-Jan-2004 C $1.25 $0.00
BalalfceAfter .
$63.00 "
"'"
$60.00 ...:;
$60.00 "
-
$9780 ...:;
$160.80
$160.80
$100.80
$99.00
$96.00
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$108.81
$104.24
$104.24
$196.03
$367.79 ~
$271. 79
$258.85
$258.85
$164.85
$157.00
$157.00
$63.00
$60.00
$60.00
$0.00
$98.70
$94.00
I $94.00
$0.00
$3.60
$79.38
$174.32
$167.27
$16602
$166.02
$72.02
$69.92
Description
Penalty - Sewer-08/291
InternalBiIJ
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Irtl
UTILITIES, INC.
Ken L Rockey
117 Walton St
Lemoyne PA 17043
Account Number 216-544-5272-15
READ DATE
4/18/2005
2/17/2005
1/19/2005
12/17/2004
11/16/2004
10/18/2004
TOTAL
PAYMENTS
06/14/05
03/22/05
02/23/05
01/27/05
01/03/05
TOTAL
DUE DATE
7/18/2005
3/16/2005
2/11/2005
1/14/2005
12/13/2005
11/10/2005
178.69
13.28
200.00
27.83
120.00
539.80
7.41 cr
518,54
2.35
539.8
26.32 cr
UGI Utilities, Inc.
225 Morgantown Road
Post Office Box 13009
Reading, PA 19612.3009
16101375-4441 Telephone
USAGE
TOTAL NET LATE PAYMENT
CHARGE
107
17
142
2
82
20
152.53
30.14
182.98
11.05
1 08.43
33.41
0.14
1.56
0.65
518.54
2.35
balance as of 10/20/04
Total Net Bills
Late Charges
Total Payments
Refunded by check 7/14/05
,
,
,
0 ,
w ,
,",3 ,
'"''" ,
H ,
'"
VERIFICATION
Thc foregoing document is bascd upon information which has becn gathcrcd by my counscl in the
preparation ofthc lawsuit. Thc language ofthc document is that of counscf and not my own. I havc read
thc document and to the cxtent that it is bascd upon information which I havc givcn to my counsel, it is truc
and COITcctto thc best of my knowledge, information and belief. To thc cxtcnt that the contcntofthc
documcnt is that of counscl, I have rclied upon counscl in making this vcrification.
This statemcnt and verification are made subject to thc penaltics of 18 Pa. C.S. Section 4904
rclating to unsworn falsification to authorities, which providcs that if! makc knowingly false averments, I
may bc subject to criminal pcnaltics.
~#
Kenneth Rockcy
CERTIFICATE OF SERVICE
I, Mary M. Price, an authorizcd agent of MARTS ON DEARDORFF WILLIAMS & OTTO,
bercby ccrtifythat a copy of the foregoing Answer to PlaintilT s Complaint, Counterclaim and CrosscIaim
was scrved this date by depositing samc in thc Post Office at Carlisle, P A, first class mail, postagc prepaid,
addrcssed as follows:
Samucl 1. Andcs, Esquirc
525 North Twelfth Strcet
P.O. Box 168
Lemoync, PA 17043
MARTSON DEARDORFF WILLIAMS & OTTO
By
Ma . Price
10 Ea tHigh Strcct
Carlisle, PA 17013
(717) 243-3341
Date; Fcbruary 6, 2006
C)
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Hillary A. Dcan, Esquirc
J.D. Numbcr 92878
MARTSON DEARDORFF WILLIAMS & OTTO
Ten East High Strcct
Carlisle, P A 17013
717-243-3341
Attorncys for Plaintiffs
GRACE BONNIE NEFF,
Plaintiff
; IN THE COURT OF COMMON PLEAS OF
; CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2006 - 148 CIVIL
KENNETH ROCKEY,
Dcfcndant
; CIVIL ACTION - LAW
; QUIET TITLE
v.
STEVE C. NICHOLAS,
Defcndant
RULE 1042,3 CERTIFICATE OF MERIT FOR STEVE C. NICHOLAS
I, Hillary A. Dcan, Esquire, hereby state that thcrc cxists arcasonable probability that thc carc, skill
or knowlcdgc exercised or exhibitcd in thc trcatmcnt, practice or work that is thc subjcct ofthc Crossclaim
Complaint containcd hcrcin, fcll outside acceptable professional standards and that such conduct was a
causc in bringing about the harm.
MARTSON DEARDORFF WILLIAMS & OTTO
Datc: February 6, 2006
Attorneys for Defendant Kenneth Rockey
CERTIFICATE OF SERVICE
I, Mary M. Pricc, an authorizcd agcnt of MARTS ON DEARDORFF WILLIAMS & OTTO,
hcrcby certifY that a copy of the forcgoing Certificate of Merit was scrvcd this date by depositing same in
thc Post Officc at Carlisle, P A, first class mail, postage prcpaid, addrcsscd as follows;
Samuef 1. Andcs, Esquire
525 North Twclfth Strcct
P.O. Box 168
Lcmoync, P A 17043
MARTSON DEARDORFF WILLIAMS & OTTO
By ~ftG~N
Mary ricc
10 East igh Strect
Carlislc, PAl 70 13
(717) 243-3341
Date: February 6, 2006
c:'~?,
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v"
Edwin A.D. Schwartz, Esquirc
Attorney LD. Number 75902
McKISSOCK & HOFFMAN, P.c.
2040 Linglestown Road, Suitc 302
Harrisburg, PA 17110
(717) 540-3400, ext. 24
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
GRACE BONNIE NEFF,
v.
KENNETH ROCKEY,
NO.: 2006-148 CIVIL
Defendant
v.
CIVIL ACTION - LAW
STEVE C. NICHOLAS,
QUIET TITLE
Defendant
NOTICE TO PLEAD
To: Kcnneth Rockey
clo Hillary A. Dean., Esq.
Ten East High Strcet
Carlisle, PA 17013
You are hereby notified to file a written response to the enclosed Preliminary
Objections within 20 days from service hereof or a judgment may be entered against
you,
PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT STEVE C.
NICHOLAS TO DEFENDANT'S CROSS CLAIM
AND NOW, comes Additional Defendant, Steve C. Nicholas, by and through his
counsel, McKissock & Hoffman, P.c., and respcctively provides thc forcgoing
Prcliminary Objections to Defendant's Cross Claim! and as such, provides thc following:
[ For purposes of clarification to this Court, it should be noted that attorney Hillary A. Dean represents
Defendant Kenneth Rockey not Plaintiff as indicated in the attorney's identification block above the
caption of Defendant's Answer to Plaintiff's Complaint.
I. Preliminary Objection In The Nature Of A Motion to Strike For Failing
To Conform To Law Or Rule Of Court
1. Additional Dcfendant Steve C. Nicholas was impropcrly joined to thc instant
. 2
actIOn.
2. Dcfendant has attemptcd to join Stcve C. Nicholas to thc instant action without
complying with the spccific mandates ofPa.R.C.P. 2252(b). Spccifically, Defcndant has
attcmpted to join Steve C. Nicholas to this action by simply including his namc in thc
caption and asserting a "cross claim".
3. Defcndant has not complicd with Pa.R.C.P. 2252(b), inasmuch as Dcfendant has
not filed a Praecipe for a Writ nor a Complaint formally joining Stcve C. Nicholas in this
action.
4. Inasmuch as Dcfendant has not propcrly joined Steve C. Nicholas to the instant
action, all claims asscrted by Defendant against Steve C. Nicholas in the nature of a cross
claim should bc stricken.
WHEREFORE, Additional Defcndant Steve C. Nicholas respectfully requests this
Honorable Court grant his preliminary objections and strike Defendant's cross claim as
asscrted against him, and furthcr grant all such other rclicf as is just and propcr.
2 For purposes of reference, Steve C. Nicholas will be referred to throughout these objections as an
"Additional Defendant". Such reference shall not be construed, expressly or by inference, as an
acknowledgement that Steve C. Nicholas either been properly joined in this action or is a proper party to
this action.
II, Preliminary Obiection In The Nature Of A Demurrer
5. Additional Defendant respcctfully incorporates the objcctions as sct forth
hcrcinabove as is more fully statcd hcrc.
6. Defcndant's apparent cfforts to asscrt a cross claim against Additional Dcfendant
Stcve C. Nicholas are without any basis in law.
7. At no timc relevant to the undcrlying action was Dcfendant, Kcnneth Rockey cver
represented by Additional Defendant Steve C. Nicholas. Therc was never any
attorney/client relation established nor was there any privity betwccn Mr. Rockey and
Mr. Nicholas
8. This lack of an attorneylclient rclation is tacitly acknowlcdged by Dcfendant
Rockey inasmuch as there is no alfegation in thc cross claim to any agrcement for
rcprescntation betwcen Mr. Rickey and Mr. Nicholas.
9. Absent the cstablishment of an attorney/client relationship, Defendant Rockcy
cannot, as a mattcr of law, assert a profcssionalliability claim against Additional
Dcfendant Stcve C. Nicholas. See Kituskic v. Corbman, 714 A.2d 1027 (Pa. 1998) (the
elements nccessary to assert a professional liability claim against an attorney are; (a)
cmploymcnt of tbc attorney or other basis for duty; (b) the failurc of the attorncy to
cxcrcise ordinary skilf and knowlcdge; and (c) that such negligcncc was the proximatc
cause of thc actual damages.)
10. Given the completc lack of any attorncy/client relation between Mr. Rockey and
Mr. Nicholas, Mr. Rockey, as a matter of law cannot asscrt a profcssionalliability claim
against Mr. Nicholas.
12. Regardlcss of thc form of Defcndant's pleading attcmpts (via cross claim, joinder,
ctc.), Dcfendant Kenncth Rockey has no standing to assert a professional liability claim
against Additional Defcndant Stcve C. Nicholas.
WHEREFORE, Additional Dcfendant Steve C. Nicholas respectfully rcqucsts this
Honorablc Court grant his preliminary objections and strike Defendant's cross claim as
asserted against him, and furthcr grant all such othcr relicf as is just and proper.
III. Preliminarv Obiection In The Nature Of A Motion to Strike Certificate Of Merit
13. Additional Dcfendant rcspectfully incorporatcs the objcctions as sct forth
hereinabove as is more fully stated here.
14. Thc Ccrtificate of Mcrit as attachcd to Defcndant's Answcr to Plaintiff's
Complaint, Countcrclaim and Cross Claim fails to comply with thc rcquirements of
Pa.R.c.p. 1042.3.
15. Namcfy, Defcndant's counsel hersclf has certified "that a rcasonable probability"
cxists that thc standard of care has bccn brcachcd. Self certification by counsel is not
permitted, contemplated or in conformity with the spirit of the Rules of Civil Procedurc
.
which govern cCltificates of merit.
16. In fact the rulcs specifically requirc that the certificatc of merit rcflect that "an
appropriate licensed professional has suppljed a written statemcnt". Pa,R.C.P.
1042.3(a)(I). (Emphasis added).
17. Defendant's instant Certificatc of Mcrit docs not indicatc the prcsencc of a written
statcment from an appropriately licenscd profcssionaf to support possible futurc sanctions
undcr Pa.R.C.P. 1042.7.
WHEREFORE, Additional Defcndant Stevc C. Nicholas rcspectfully requcsts this
Honorablc Court grant his preliminary objections and strikc Defcndant's Certificatc of
Mcrit as failing to comply with Pa.R.C.P. 1042.3, and further grant all such other rclief as
is just and propcr.
Rcspectfully submitted,
By:
McKissock & Hoffman, P.C
/~'
Edwin A.D. Schw
1.D. No.: 75902
2040 Linglestown Road, Suitc 302
Harrisburg, PA 17110
(717) 540-3400
Attorncys for Additional Defendant
Steve C. Nicholas
Dated; 077"~..4 Ob
CERTIFICATE OF SERVICE
I hcrcby certify that I am this day scrving a copy of the foregoing Preliminary
Objcctions to Dcfcndant's Answcr to Plaintiff's Complaint, Counterclaim and Crossclaim
upon the person(s) and in thc manner indicatcd bclow, which scrvice satisfies the
requiremcnts of the Pennsylvania Rules of Civil Proccdure, by depositing a copy of same
in thc United States Mail, first-class postagc prcpaid, addressed as follows:
Samuel 1.. Andcs, Esq.
525 North Twclfth Strcct
P.O. Box 168
Lcmoyne, PA 17043
(Counsel for Plaintiff)
Hillary A. Dcan., Esq.
Ten East High Street
Carlislc, PA 17013
(Counsel for Defendant)
McKissock & Hoffman, P.C.
By:
Datcd: Z.y' ~~ oc.
Edwin A.D. Schw sqUlrc
Identification No.; 5902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Attorncys for Additional Dcfendant,
Stevc C. Nicholas
--n
\
c
(I)
-.'-
, ~
Edwin AD. Schwartz, Esquire
Attorney I.D. Number 75902
McKISSOCK & HOFFMAN, P.e.
2040 Lingfestown Road, Suite 302
Harrisburg, P A 1711 0
(717) 540-3400, ext. 24
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
GRACE BONNIE NEFF,
v.
KENNETH ROCKEY,
NO.; 2006-148 CIVIL
Dcfendant
v
CIVIL ACTION - LAW
STEVE C. NICHOLAS,
QUIET TITLE
Dcfendant
ENTRY OF APPEARANCE
Kindly entcr my appearancc on behalf of Additional Dcfcndant, Steve e.
Nicholas, Esquire, in thc abovc-captioncd.
Rcspcctfully submitted,
McKissock & Hoffman, P.C.
By:
Edwin A.D. Schw z, quire
Attorney J.D. No.; 75902
2040 Linglcstown Road
Suite 302
Hanisburg, PA 17110
(717) 540-3400
Dated: .;;?~ ~6 <:> b
Attorncys for Additional Dcfendant, Stevc
e. Nicholas, Esquire
.
CERTIFICA TE OF SERVICE
I hcreby certify that I am this day serving a copy of the forcgoing Entry of
Appearancc upon the pcrson(s) and in the manncr indicated bclow, which service
satisfics the requiremcnts of thc Pennsylvania Rules of Civil Procedure, by depositing a
copy of samc in the Unitcd States Mail, first-class postage prepaid, addresscd as follows;
Samuef L. Andes, Esq.
525 North Twelfth Strcet
P.O. Box 168
Lemoyne, PA 17043
(Counsel for Plaintiff)
Hillary A Dcan., Esq.
Ten East High Strect
Carlisfe, PA 17013
(Counsel for Defendant)
McKissock & Hoffman, P.C.
BY;~~
Edwin AD. Sch z squire
Attorney J.D. No.; 75902
2040 Linglcstown Road
Suite 302
Harrisburg, PA 17110
(7] 7) 540-3400
Dated: :zy ~.J<~ <=> c::
Attorneys for Additional Defcndant,
Stcvc C. Nicholas, Esquirc
,-./
F;\F]LES\DA T AFlLE\General\Currenl\11797. lans2/ajl
Crealed 4/]8/06 1153AM
Revised 4/18/06 0:06PM
11797.1
Hillary A. Dean, Esquire
LD. Numbcr 92878
MARTSON DEARDORFF WILLIAMS & OTTO
Ten East High Strcet
Carlislc,PA 17013
717-243-3341
Attorncys for Plaintiffs
GRACE BONNIE NEFF,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
; CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2006 - 148 CIVIL
KENNETH ROCKEY,
Defendant
: CIVIL ACTION - LAW
: QUIET TITLE
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT
AND NEW MATTER COUNTERCLAIM
TO: GRACE BONNIE NEFF, Plaintiff, and hcr attorney, SAMUEL L, ANDES, ESQUIRE
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.
AND NOW comes Dcfcndant, Kcnneth Rockey, by and through his attorneys, MARTSON
DEARDORFF WILLIAMS & OTTO, and hcrcby rcsponds to Plaintiffs Complaint as follows;
I. Ncither admitted nordcnicd. Afterrcasonablc investigation, Answcring Dcfcndant is
without knowlcdge or information sufficicnt to form a bclicf as to thc truth ofthe avcrmcnt contained in
Paragraph 1.
2. Admitted.
3. Admittcd. By way of further answer, Dcfendant's namc is spcllcd Rockcy.
4. Paragraph 4 is dcnicd as a conclusion oflaw to which no rcsponsc is rcquircd.
5. Paragraph 5 is dcnicd as a conclusion of law to which no rcsponsc is requircd.
6. Admittcd in part, dcnicd in part. It is admittcd that thc Installmcnt Salcs Contract was
tcrminatcd. Thc rcmaindcr of Paragraph 6 is denicd as a conclusion oflaw to which no responsc is
rcquircd.
7. Admitted in part, denied in part. It is admitted that the Agreement was recorded in the
Recorder of Deeds Office in and for Cwnberland County, Pennsylvania, in Misc. Book 681 at Page 3743.
The remainder of Paragraph 7 is denied as a conclusion oflaw to which no response is required.
8. Paragraph 8 is denied as a conclusion of law to which no response is required.
9. Paragraph 9 is denied as a conclusion oflaw to which no response is required.
10. The averment of Paragraph 10 is specifically denied. Strict proof is demanded thereof.
WHEREFORE, Answering Defendant requests this Honorable Court to dismiss Plaintiffs
Complaint, with prejudice.
NEW MATTER COUNTERCLAIM
KENNETH ROCKEY v. GRACE BONNIE NEFF
II. Paragraphs I through 10 are hereby incorporated by reference as though fully set forth
herein.
12. On October 11,2001, Kenneth Rockey and Grace Bonnie Neff entered into an Installment
Sales Contract (hereinafter "contract") for the sale of the premises known as 117 Walton Street, Lemoyoe,
Cumberland County, Pennsylvania. The contract price for the premises was ninety thousand dollars
($90,000.00).
13. Kenneth Rockey paid ten thousand dollars ($10,000.00) atthetime of signing, and made
monthly payments toward the purchase price in accordance with the contract.
14. Kenneth Rockey made 33 consecutive monthly payments of$643. 70 towards the purchase
of the premises.
15. On or around the month ofJune, 2004, the parties agreed to convey said premises back
to Plaintiff and the $10,000.00 down payment would be reimbursed to Mr. Rockey.
16. Defendant did not make monthly payments toward the purchase price from June, 2004,
through October, 2004.
17. Defendant continued to pay the homeowners insurance and the utilities for the premises at
117 Walton Street from November, 2004 through April, 2005 at the request of the Plaintiff.
18. Said payments ofhomeowners insurance and utilities totaled $1 ,483.55 for the six month
period. See attached Exhibit "A," a true and correct copy of the receipts.
19. On October 13, 2004, Defendant went to the offices of attorney, Steve C. Nicholas, at
Northwood Office Center, 2215 Forest Hills Drive, Suite 37, Harrisburg, Dauphin County, Pennsylvania,
17112, and signed a Quit-Claim Deed drafted by Attorney Nicholas.
20. Defendant believes, and therefore avers, that said Quit-Claim Deed signed by him on
October 13, 2004, terminated the contract between himself and Plaintiff.
COUNT I
21. Paragraphs 1 through 20 are hereby incorporated by reference as though fully set forth
herein.
22. Under the Installment Sales Contract, Mr. Rockey gained equity in the premises by making
33 monthly payments of $643.70 toward the purchase price.
23. Under the terms of the Installment Sales Contract, $80,000.00 at 9% interest on a 30 year
amortization schedule reveals that Mr. Rockey paid $1 ,629.28 toward the principal ofthe purchase price
of the premises.
24. Further, at the time of signing said contract in October, 2001, Mr. Rockey paid
$10,000.00 towards the principal of the purchase price.
25. Mr. Rockey paid $1 ,483.55 in homeowner's insurance and utilities from November, 2004
through April, 2005.
26. Mr. Rockey is entitled by law to be compensated for the equity he gained in the premises
at 117 Walton Street, Lemoyoe, Pennsylvania.
WHEREFORE, based upon the foregoing, Defendant Kenneth Rockeyrespectfully demands
judgment in his favor in an amount of not less than $13,112.83, together with interest and costs, and any
other remedy this court may deem appropriate.
COUNT 2
27. Paragraphs 1 though 26 are hereby incorporated by reference as though fully set forth
herein.
28. Plaintiffhas directly and/or indirectly received the benefit of payments of homeowners
insurance and utilities for the premises she owns at 117 Walton Street, paid for by Defendant, valued at
not less than $1,483.55.
29. In declining to reimburse Defendant for the payment ofhomeowners insurance and utilities
he made after the contract was terminated, and for the equity he gained in the premises, Plaintiffhas been
unjustly enriched in an amount of not less than $13,112.83.
30. Defendant is entitled to be compensated for his payment of homeowners insurance, utilities,
and equity gained in the premises, for which he has not received payment.
WHEREFORE, based upon the foregoing, Defendant respectfully demands judgment in his favor
in the amount of not less than $13, 112.83, together with interest thereon and costs, and any other remedy
this Court may deem appropriate.
Respectfully Submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
By
.Hillary A. De
Attorney J.D. o. 92878
10 East High Street
Carlisle, PA 17013
(717) 243-3341
/
Date: April 18, 2006
Attorneys for Defendant
Kenneth Rockey
EXHIBIT A
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OO~JOOC00000036700 0(0000)0>(73 ,
00(000(05080361721
KEtn{E'{H L ROCKE'!
113 L:JP..EEN L'WE LR
CAMF Hl:'L, PA 1'1011-8315
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1-S00-565.7:Q::!
08 09.2005
Rocky, Ken
113 Green Lane Dr
Camp Hi III ~001
Account :-;umber: 24-133~~55-3
Premise Number: 2403 ~ I ~34
\ \7 Walton 5t
Dear Customer:
Our records indicate you are requesting your ledger history from the above mentioned account. Below is
the information requested, we hope this additional information is helpful.
Current Balance: $ 0
Bill Date:
Type'
Amount
08 II 04
082304
09 1004
09 23 04
10 1204
110904
II 1004
l2 08 04
121004
122804
122804
01 1205
02 10 05
02 24 05
030905
03 24 05
04 06 05
04 1205
04 1905
06 08 05
CHG
LKB
CHG
LKB
CHG
CHG
LTC
LTC
CHG
LKB
LKB
CHG
CHG
LTC
CHG
LKB
LTC
Clm
CflG
LKB
28.24
28.24 CR
34.01
34.01 CR
28.96
27.80
,43
85
15.65
56.76 CR
16.93 CR
1164
13.97
.17
1397
2561 CR
.21
12.86
5.25
32,46CR
Please contact our Customer Service Center at 1-800-565-7292, if we can provide additional assistance,
Representatives are available 24 hours a day, 7 days a week for your convenience,
Sincerely,
Customer Service
.\CTST\H
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InvoIce Tran. Oats Statu. Amount Rsmalnlng O..crlplfon Balanc.Atler
I !Z9.AUg.Z005 JCI $3.00 $0.00 IPenally. Sewer.08/Z9/1 $63.00 "
-
" 67998 IZ9.AUg.2005 . n/OI $0.00 $300 l,nternalBill I $60.00 "
--
I I 04.Aug-2005 ~I ($3780) $0.00 Ipayment - Refuse.081 I $60.00 "
I 104.AUg-Z005 ($63 DO) $0.00 I Payment. Sewer.08/0 I $97.80 "
-
I 67588 I 04.Aug.2005 "'/0 $0.00 ($63.00) l,nternalBill I $16080 "
-
I 67073 I Og-Jul.Z005 0 $60.00 $60.00 $160.80 "
-
I 117 .Jun.Z005 C $1.80 $0.00 Penally. Refuse.06/17 $100.80 "
"'"
'" I 17.Jun.ZOOS C $3.00 $0.00 Penalty. Sewer-06l171 $99.00 "
"'"
I 65862 '1 17.Jun-200S 0 $0.00 $4.80 InternalBIII $96.00 "
I 64893 IOZ.May-2005 0 $96.00 $58. ZO $96.00 "
I 19.Apr.200S J~]t~.1 "'"
-, $0.00 IUtility Billing paym.0411 $0,00 "
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I -I 13.Apr-200S fCl $0.6S I $000 Ipenalty - Refuse.04/13I $109.46 "
-
I I 13.Apr.2005 fc $4,57 $0.00 IPenalty - Sewer.04/13/1 $108.81 "
-
-I 63611 113.APr.2005=i iQ.Oll. $0.00 InternalBilI $104.24 "
"'"
l 1 03-Mar.2005 C 91.79) $0.00 Payment. Refuse.031 $104.24 "
"'"
I -, 03-Mar.2005' C $171,76) $0.00 Payment. Sewer-03/0 $196.03 "
-
I 62708 I 02.Mar-200S 1 $96.00 $0.00 $367.79 "
"'"
-, 1'1.Feb-Z005 E $1Z.94 $0.00 lpenally. Refuse-02l11 , $271.79 "
"'"
-, 59614 -I 11.Feb.2005 . ~ $0.00 $0.00 InternalBIII $258,85 "
"..
I 58693 I 04.Jan-ZOOS C $94.00 $0.00 $258.85 "
-
1 15-0ec-2004 C $7.85 $0.00 Penally. Refuse-12115 $164.85 "
J 115-oec.2004 -fc "'"
57374 $0.00 $0.00 IntemalBIII $157.00 "
"'"
1 56426 11Z-Nov-ZOO4 C $94.0 $0.00 $157.00 "
- "'"
1 1 14-0ct-2004 C $3.00 $0.00 Penally. Refuse-10/14 $63.00 "
-
I 55090 I 14-0ct-2004 C $0.00 $0.00 IntemalBIII $60,00 "
....
-I 54238 101.Sep.2oo4 C $60.00 $0.00 $60.00 "
I '120-Aug-2004 Cj ....
($98.70) $0,00 Utility Billing Paym.08/ $0.00 "
I I 19.Aug-2004 JC $4.70 $0.00 I Penalty. Refuse.08119I $98.70 "
I 49943 -I 19.Aug.Z004 fc $0.00 $0.00 InternalSiII $94.00 "
I 48975 I 14.Jul-Z004 fCl $94.00 $0.00 $94.00 "
-
I I 06.Jul.Z004 fCl ($3.60) $0.00 IUlilily Billing Paym.07/1 $0.00 "
I 02.Jul.2004 fCl /payment. Refuse-071 , -
($75.78) $0.00 $3.60 "
-
I 02.Jul.2004 fCl ($9494) $0.00 lPayment. Sewer-07/0 I $79.38 "
, 01.Jul.2004 fCl $705 $0.00 IPenalty . Refuse-07/011 $174.32 "
I 01.Jul.Z004 [CI I /Penalty. Sewer.0710111 --
$125 $0.00 $167.27 "
-
44097 I 01.Jul-ZOO4 fCl $000 I $0.00 l,nternal8iU , $166.0Z "
43168 I Z8.Apr.2004 [CI $9400 I $000 I I $16602 "
-
I jZ8.Jan.Z004 fCl $210 I $0.00 JPenalty - Refuse-01i28 , $7Z.0Z "
-
I IZ8.Jan.2oo4 fCl $IZ5 I $0.00 IPenally. Sewer.01lZ8/1 $69 92 "
-
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IlTlI./TlES INe
Ken L Rockey
117 Walton 51
Lemoyne PA 17043
Account Number 216-544-5272-15
READ DATE
4/18/2005
2/17/2005
1/19/2005
12/17/2004
11/16/2004
10/18/2004
TOTAL
PAYMENTS
06/14/05
03/22/05
02/23/05
01/27/05
01/03/05
TOTAL
DUE DATE
7/18/2005
3/16/2005
2/11/2005
1/14/2005
12/13/2005
11/10/2005
178,69
13,28
200,00
27,83
120,00
539,80
7.41 cr
518,54
2,35
539,8
26,32 cr
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USAGE
TOTAL NET LATE PAYMENT
CHARGE
107
17
142
2
82
20
152,53
30,14
182,98
11,05
108,43
33,41
0.14
1,56
0,65
518.54
2,35
balance as of 1 0/20/04
Total Net Bills
Late Charges
Total Payments
Refunded by check 7/14/05
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VERIFICATION
The foregoing docwnent is based upon information which has been gathered by my cOlmsel in the
preparation ofthe lawsuit. The language ofthe document is that of counsel and not my O\\TI, I have read
the docllment and to the extent that it is based upon information which I have given to my counsel, it is true
and correct to the best of my knowledge, information and belief. To the extent that the content of the
document is that of counsel, I have relied upon counsel in making this verification,
This statement and verification are made subject to the penalties of 18 Pa, C ,S. Section 4904
relating to unsworn falsification to authorities, which provides that in make knowingly false averments, I
may be subject to criminal penalties,
~#-
Kenneth Rockey
CERTIFICATE OF SERVICE
I, Ami J. Thurnma, an authorized agent of MARTS ON DEARDORFF WILLIAMS & OTTO,
hereby certify that a copy ofthe foregoing Answer was served this date by depositing same in the Post
Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows:
Samuel L. Andes, Esquire
525 North Twelfth Street
P,O. Box 168
Lemoyne, P A 17043
MARTSON DEARDORFF WILLIAMS & OTTO
By (111\A~ ~Hll,d
AmiJ. Th ma
10 East High Street
Carlisle, P A 17013
(717) 243-3341
Date: April 18, 2006
II
I'
GRACE BONNIE NEFF, ) IN THE COURT OF COMMON PLEAS
Plaintiff ) OF CUMBERLAND COUNTY,
) PENNSYLVANIA
vs. )
)
KENNETH ROCKEY, ) CIVIL ACTION - LAW
Defendant )
)
vs, ) QUIET TITLE
)
STEVE C. NICHOLAS, ) NO, 2006-148 CIVIL TERM
Defendant )
PLAINTIFF'S REPLY TO THE COUNTERCLAIM OF DEFENDANT KENNETH ROCKEY
AND NOW comes the above-named Plaintiff, by her attorney, Samuel L. Andes, and
makes the following Reply to the Counterclaim of the Defendant Kenneth Rockey:
11, No answer required, To the extent that any factual response is deemed
necessary or appropriate, Plaintiff incorporates herein the averments set out in her original
complaint.
12. Admitted,
13. Admitted,
14. Admitted with clarification, One of the checks with which Rockey made payment
bounced and was never made good, By way of further answer, Plaintiff states that Rockey
or his wife occupied the property until October of 2004 without making any payments
pursuant to the agreement during that time,
15, Denied. The discussions between the parties in June of 2004 involved Rockey's
wife who still occupied the property, and continued to occupy it through October of that
year, Rockey's offer to continue to pay utilities and other expenses at the home until
Plaintiff returned to take possession of it, and the fact that Rockey was no longer able or
willing to make payments on the installment sales agreement. There was never any
discussion involving the refund of $10,000.00 to Rockey,
II
16. Admitted. By way of further answer, Plaintiff states that, during that time,
Rockey and/or his wife occupied the property without making those payments,
17, Admitted, Rockey made those payments, however, because he and or his wife
continued to occupy the property through the end of October of that year and Rockey
continued to store his possessions in the property thereafter. Plaintiff agreed to allow
Rockey that limited occupancy and use of the property in exchange for his making payment
of insurance, utilities, and other expenses, In addition to paying those expenses, Rockey
was to vacate the property, remove his possessions from it, and leave it in a clean condition
so that Plaintiff could take possession of it in April of 2005, Rockey failed to perform those
obligations.
18. It is admitted that the documents attached as Exhibit A to Rockey's Answer
indicate payments made. Whether those payments were all made by Rockey and whether
he was refunded any portion of those payments or not, however, is not known to Plaintiff
because that information is within the exclusive control of Rockey and so Plaintiff denies
Rockey's claim that he made these payments in full and the implication that he did not
receive any portion of those payments back, and demands proof thereof at trial. The
averments set forth in the preceding paragraphs of this Reply are incorporated herein,
19. Although Plaintiff is aware that Rockey signed a quit claim deed and believes that
was signed at the office of Steve Nicholas, she is not precisely aware of when, where, or
how that deed was signed because that information is within the exclusive possession of
Rockey and Mr, Nicholas and so she denies the same and demands proof thereof at trial.
20. Although Plaintiff cannot answer averments as to what Rockey believes, she
acknowledges that the transactions between the parties, including the quit claim deed,
notices issued to Rockey by Mr, Nicholas, and communications from Plaintiff to Rockey
terminated the agreement as a result of Rockey's violation and breach of the agreement by
failing and refusing to make the payments due,
II
COUNT I
21, No answer required, To the extent that a factual response is required or
appropriate, Plaintiff incorporates herein by reference the averments made in her original
complaint and the averments set out in the foregoing portions of this Reply,
22, Denied as stated, Although it is admitted that Rockey obtained an equitable
interest in the property as a result of the agreement he signed and the payments he made,
Plaintiff states that any equitable interest he acquired in the property was terminated when
he breached the agreement and failed to cure his default. Rockey has admitted as much in
the statements made in Paragraph 20 of his counterclaim,
23. Denied. Plaintiff at the present time is unable to determine the amount of
principal that Rockey paid on the installment sales agreement because she does not have
information as to the precise amount and date of the payments Rockey made. Because that
information is within the exclusive control of Rockey, she denies these averments and
demands proof thereof at trial. Plaintiff denies that Defendant gained any equity in the
property as a result of any principal payments he made on the debt, because he defaulted n
the agreement and, thereby, lost any equitable interest in the property,
24. Admitted, By way of further answer, the averments set out in Paragraph 23
above are incorporated herein by reference.
25, Denied. Plaintiff does not know what expenses Rockey paid for homeowners
insurance or utilities, because that information is within the exclusive possession of Rockey
and so Plaintiff denies the same and demands proof thereof at trial.
26, Denied, Rockey forfeited and lost any equitable interest he obtained in the
property by virtue of the agreement between Plaintiff and Rockey when he breached the
contract, failed to cure his breach, and acknowledged the termination of the contract by
executing and delivering the quit claim deed, Moreover, Rockey occupied the property for
approximately three and a half years, during which he enjoyed the exclusive occupancy, use
and benefit of the property, As a result of both of these matters, Rockey has no equity in
the property and is not entitled to compensation for any payments he made during the time
he benefitted from his occupancy of the property,
II
WHEREFORE, Plaintiff prays that Rockey's counterclaim be dismissed and that
judgment be entered in her favor in accordance with her complaint.
COUNT II
27, No answer required. To the extent that a factual response is required or
appropriate, Plaintiff incorporates herein by reference the averments made in her original
complaint and the averments set out in the foregoing portions of this Reply,
28. Denied. Rockey received the benefit of all of the payments he made both
because he was obligated to make those payments under the agreement he signed with
Plaintiff and because he enjoyed the exclusive occupancy, use, and benefit of the property
during the time that he made the payments,
29, Denied, Plaintiff was without the occupancy, use, or benefit of the property for
more than three years while Rockey alone enjoyed the occupancy, use, and benefit of the
property and, as a result, was not unjustly enriched by the amounts Rockey paid, To the
contrary, Rockey, alone, enjoyed the benefit of the payments he made during the time he
occupied the property,
30, No answer is required because Paragraph 30 merely states a legal conclusion, and
an erroneous one, not a factual averment. To the extent that a factual response is
required, Plaintiff incorporates herein the statements set out in the foregoing paragraphs of
this Reply,
WHEREFORE, Plaintiff prays that Rockey's counterclaim be dismissed and that
judgment be entered in her favor in accordance with her complaint,
PLAINTIFF'S REPLY TO CROSS CLAIM OF
DEFENDANT KENNETH ROCKEY AGAINST STEVE C. NICHOLAS
31, No answer required. To the extent that a factual response is required or
appropriate, Plaintiff incorporates herein by reference the averments made in her original
complaint and the averments set out in the foregoing portions of this Reply,
II
i
32, Plaintiff admits that Mr, Nicholas is an attorney with offices at the address
listed, She denies that Rockey is validly asserting any claim against Mr, Nicholas,
33. Admitted,
34. Plaintiff does not know the date the quit claim deed was prepared but believes
it was prepared by Mr. Nicholas,
35, Denied, Plaintiff has no knowledge about the communications between Mr,
Nicholas and Rockey because she was not party to those communications and information
about them is now within the possession of adverse, or potentially adverse, parties,
Accordingly, she denies the averments in Paragraph 35 and demands proof thereof at trial.
36. Denied for the same reasons set forth in the Reply to Paragraph 35 above.
Plaintiff states, by way of further answer, that Rockey does not have a right to receive any
refund or other payment and was not entitled to any refund of equity under the law,
37, Denied for the same reasons set forth in the Reply to Paragraph 35 above,
38. Denied for the same reasons set forth in the Reply to Paragraph 35 above, Way
of further answer, Plaintiff states that her attorney prepared and sent to Rockey, on or
about 7 November 2005, a termination waiver and release document and a request that he
sign and return that document to avoid the trouble for everyone of a quite title action,
Attached hereto, and marked as PLAINTIFF'S REPLY EXHIBIT - 1, is a copy of the termination
waiver and release and the letter with which it was mailed to Rockey in November of 2005,
39, No answer required because the statements in Paragraph 39 of Rockey's Cross
Claim state a conclusion of law and are not factual averments, To the extent that a factual
response is required, Plaintiff denies that Mr, Nicholas is responsible for payment of fees or
costs or damages incurred and created solely by Rockey and his violation of the agreement
with Plaintiff,
40. No answer is required because the statements in Paragraph 40 state a conclusion
of law and are not averments of fact, To the extent that a factual response is required,
Plaintiff states that Rockey had no right of reimbursement to which Mr, Nicholas, or anyone
else, was obligated to advise him,
II
II
i WHEREFORE, Plaintiff prays this court to dismiss Rockey's Cross Claim against Steve
C, Nicholas and to enter judgment in favor of the Plaintiff in accordance with her original
complaint.
~jJ.J;..
Attorney for Plaintiff
Supreme Court 10 17225
525 North 12th Street
Lemoyne, PA 17043
(717) 761-5361
I verify that the statements made in this document are true and correct. I understand that
any false statements in this document are subject to the penalties of 18 Pa, C.S, 4904 (unsworn
falsification to authorities),
DATE: f,jg /Of
~Jf~
GRACE BONNIE NEF
II
. '
PLAINTIFF'S REPLY EXHIBIT - 1
SAMUEL L. ANDES
ATTORNEY AT LAW
525 NORTH TWELFTH STREET
P. Q. BOX J68
LEMOYNE,PENNSYLVANlA17043
TELEPHONE
(717) 761-5361
p=
(n7\ 761-14:)5
7 November 2005
Mr. Kenneth Rocky
103 Dawn Drive
Carlisle, P A 17013
Dear Mr. Rocky:
I represent Grace Bonnie Neff with whom you entered into an agreement in October 01
2001 to purchase her residence at 117 Walton Street in Lemoyne. You eventually defaulted on
that agreement by failing to make payments and I write now to resolve the status of that
agreement and the property.
You signed a Quit Claim Deed in 2004 to return the property to Mrs. Neff. However, to
make it clear that you have released any rights you acquired to the property as a result of the
installment sales agreement, we need to file something in the courthouse other than the Quit
Claim Deed or I will have to file an action with the court to have it formally declare that you
have no rights in the property, The simplest way to do that, obviously, is for both of you to
sign a document releasing any rights or claims against the other, or to the property, arising out
of that agreement. I have prepared such a document and I enclose it. If you will take it to a
notary public, sign it, and return a notarized copy to me, I will have Mrs, Neff do the same and
then record it at the courthouse, That will end the matter completely. If you will not do that, 1
will have no choice but to file a formal Quiet Title action against you to clear this matter up.
That will only involve a good bit of expense and trouble for you and I would like to avoid that
for everyone, If you have any questions about this, you may want to consult an attorney.
Otherwise, please get the enclosed document signed and notarized, keep the extra copy for
your files, and then return the document to me in the enclosed envelope, If I do not hear from
you, or an attorney on your behalf, within two weeks, I will assume that you are not going to
cooperate and I will then commence legal action against you to protect my client's rights.
Please help us avoid that.
Sincerely,
Samuel L. Andes
amh / Enclosures
cc: Ms, Grace Bonnie Neff
x.
TERMINA nON WAIVER AND RELEASE
WITNESSETH, the parties executing this Termination Waiver and Release were parties
to an installment sales contract dated 11 October 2001 which was thereafter recorded in the
Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book 681 at
Page 3743 and, after the agreement was signed, Kenneth Rocky, the purchaser under the
agreement, defaulted by failing to make the payments and the parties now wish to terminate
that agreement, waive their claims against each other, and release the other party from those
claims and wish to have those actions reduced to writing,
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter set forth and intending to be legally bound and to legally bind their heirs,
successors, and assigns hereby, the parties do hereby covenant, promise, and agree as follows:
1, Both parties hereby terminate the installment stales agreement between them dated
11 October 2001 and recorded as described above,
2, Each of the parties does hereby waive, release, relinquish, and terminate absolutely
any rights they may have against the other as a result of the installment sales contract and
hereby releases the other party from any further obligation thereunder.
3, The parties acknowledge that title to the property which was the subject of that
agreement, which is a residence known and numbered as 117 Walton Street in Lemoyne,
Cumberland County, Pennsylvania, which is rnore particularly bounded and described on
Exhibit A, has been returned to Grace Bonnie Neff and Kenneth Rocky does hereby waive,
release, relinquish and terminate absolutely any interest in or claim to that property.
IN WITNESS WHEREOF the parties hereto have set their hands and seals this
day of 2005.
Witness
GRACE BONNIE NEFF
Witness
KENNETH ROCKY
II
II
!ICOMMONWEALTH OF PENN5YL VANIA
II
I!COUNTY OF CUMBERLAND
I'
I'
,I
II On this, the day of ,2005, before me, a Notary
i!Public, the undersigned officer, personally appeared GRACE BONNIE NEFF known to me (or
Illsatisfactory proven) to be the person whose name is subscribed to the within instrument, and
I acknowledge that said person executed the sarne for the purposes therein contained,
II IN WITNE55 WHEREOF, I hereunto set my hand and official seal.
.1
Ii
Ii
Ii
if
I'
Ii
Ii
II
,
COMMONWEALTH OF PENN5YL VANIA
)
(55.:
)
Notary Public.
)
(55.:
)
,
I
I COUNTY OF CUMBERLAND
I
Ii On this, the day of ,2005, before me, a Notary
[Public, the undersigned officer, personally appeared KENNETH ROCKY known to me (or
satisfactory proven) to be the person whose name is subscribed to the within instrument, and
I acknowledge that said person executed the same for the purposes therein contained,
! IN WITNE55 WHEREOF, I hereunto set my hand and official seal.
Notary Public,
I
I
I
,
EXHIBIT A
ALL THOSE CERTAIN tracts or parcels ofland situate in the Borough of Lemoyne, County of
Cumberland and Commonwealth ofPeIUlsylvarua, bounded and described as follows, to wit:
TRACT NO, 1:
BEGINNING at the northeast corner of Warren and Walton Streets; thence eastwardly along the
northern side of Walton Street, 60 feet to a point; thence northwardly on a line parallel with
Warren Street, 100 feet to a point; thence westwardly at right angles with Warren Street, 60 feet
to the eastern side of Warren Street; and thence southwardly along Warren Street, 100 feet to the
place of BEGINNING,
HAVING THEREON ERECTED a dwelling house known as No. 117 Walton Street,
Lemoyne, Pennsylvania 17043.
BEING Lot No. 439 on a Plan of Lots laid out for R.R. Baugher, known as Replat of the Walton
Quarry Plot.
UNDER AND SUBJECT to easements, restrictions, rights-of-way or other matters of prior
record.
BEING THE SAME PREMISES WHICH John Neff and Grace Bonnie Neff, husband and
wife, by their Deed dated October 19, 1994 and recorded January 11, 1995 in the Office of the
Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 117, Page 476,
transferred and conveyed unto John Neff.
TRACT NO. 2:
BEGINNING at the northeast corner of Warren and Walton Streets; thence northwardly along
the eastern side of Warren Street, 100 feet to a point; thence westwardly 15 feet to a point in the
center of a proposed street known as Warren Street; thence southwardly 100 feet to a point on the
north side of Walton Street; thence eastwardly 15 feet to the southwest corner of 201 Walton
Street, the place of BEGINNING.
SHERIFF'S RETURN - OUT OF COUNTY
..,,,
.
CASE NO: 2006-00148 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NEFF GRACE BONNIE
VS
ROCKY KENNETH
R, Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named ADD'TL DEFEND
, to wit:
NICHOLAS STEVE C
but was unable to locate Him
in his bailiwick, He therefore
deputized the sheriff of DAUPHIN
County, Pennsylvania, to
serve the within COMPLAINT -QUIET TITLE
PLAINTIFF'S COMPLAINT, COUNTERCLAIM AND CROSSCLAIM
On February 17th, 2006 , this office was in receipt of the
DEF~NDANT'S ANSWER TO
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Dauphin County
Postage
18,00
9.00
10.00
37,25
,39
74,64
02/17/2006
MDW&O
.. ..7
So a~nsw- -'.".--v '?""::.=------..::.-- ~.....~~..~~ ~ .
. /../. /~~~
".<Co";' :.:--.~._.,--,-
R, Thomas Kline
Sheriff of Cumberland County
Sworn and subscribed to before me
this .:lP
,1aoL...
day of .=1,J",u"j
-In The Court of Common Pleas of Cumberland County, Pennsylvan:ia
Grace Bonnie Neff VS Kenneth Rockey
VS,
Steve C. Nicholas
\
No.
06-148 civil
Now,
Feb~ 7. 2006
, I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
.- ;"~ J~~
Sheriff of Cumberland County, P A
Affidavit of Service
Now,
,20-, at
0' clock
M, served the
within
upon
at
by handing to
a
copy of the original
and made lmown to
the contents thereof,
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of ,20_
,
COSTS
SERVICE .
MILEAGE
AFFIDAVIT
$
$
@ttitt of tlp~ ~1rpriff
Mary Jane Snyder
Real Estate Deputy
William T, Tully
Solicitor
Charles E, Sheaffer
Chief Deputy
Michael W, Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
County of Dauphin
NEFF GRACE BONNIE
vs
Sheriff's Return
NICHOLAS STEVE C ESQUIRE
No, 0226-T - -2006
OTHER COUNTY NO, 06-148
AND NOW:February 14,2006 at 10:37AMserved the within
DEFT'S ANSWER TO PLA COMPLAINT COUNTERCL upon
NICHOLAS STEVE C ESQUIRE by personally handing
to STEVE C NICHOLAS ESQ DEFT 1 true attested copy(ies)
of the original DEFT'S ANSWER TO PLA COMPLAINT COUNTERCL and making known
to him/her the contents thereof at
Sworn and subscribed to
before me this 14TH day of FEBRUARY, 2006
~A/
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept. I, 2006
NORTHWOOD OFFICE CENTER
2215 FOREST HILLS DR - SUITE 37
HBG, PA 17112-0000
So Answers,
JR~
:~rHf ~:y.
" Deputy Sheriff
Sheriff's Costs: $37.25 PD 02/09/2006
RCPT NO 214730
Pa,
GM
\
051.17/2006 WED 15:46
65/17/2006 03:38
FAX 717 540 3434 McKissock & Hoffman, PC
I4i 0021003
717-243-1850
MDW&O
PAGE 02/03
Edwin A,D, Schwartz, Esquire
Attorney LD. Number 75902
McKISSOCK & HOFFMAN, P.e.
2040 Linglestown'Road, Suite 302
Harrisburg, PA 17110
(717) 540-3400, ex\. 24
GRACE BONNIE NEFF,
Plaintiff
IN THE COURT OF COMMON PlEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v,
Defendant
NO,: 2006-148 C1VlL
crvll. ACTION - LAW
KENNETH ROCKEY,
v,
STEVE C, NICHOLAS,
QUlET TITLE
Defendant
STIPULATION
AND.NOW comes Samuel L. Andes, Esquire, as cOUllllel for Plaintiff, Grace
Bonnie Neff; and Hillary A, Dean, Esquire, as counsel for Defendant, Kenneth Rockey;
.and Edwin AD, Schwartz, Esquire, as counsel for Additional Defendant, Steve C,
Nicliolas, who on behalf of their respective clients hereby agree and stipulate to the
following:
1. The crossclaim asserted by Defendant, Kenneth Rockey, against Steve C.
Nicholas in Defendant's Answer to Plaintiff's Complaint, Counterclaim and Crossclaim
as filed with the Prothonotary pf Cumberland County on February 6, 2006 is hereby
. withdrawn with prejudice, It is further agreed that any and all claims against Steve C,
Nicholas by either of the parties are hereby waived and dismissed with prejudice,
2, Defendant, Kenneth Rockey, is pennitted twenty (20) days from the date
of filing of this Stipulation to file an Amended Answer and New Matter to the Complaint
filed by Plaintiff, Grace Bonnie Neff,
1!
05/17/2006 03:38
717-243-1850
MDW & 0
Ii!J 003/003
PAGE 03/03
05/17/2006 WED 15:46 FAX 717 540 3434 McKissack & Hoffman. PC
.
3. The PIeliminary Objections of Additional Defendant, Steve C. Nicholas,
to Defendant, Kenneth Rockey's, Crossclaim will be withdrawn, via Praecipe within ten
(10) days of the filing of this Stipulation,
Respectfully submitted,
~
Samuel L. Andes, Esq,
Attorney 10. No.: 17225
525 North Twelfth Street
P,O. Box 168
Lemoyne, PA 17043
(Couns~l for Plaintiff)
ary A,D
Attorney LO, ,: 92878
Ten East High Street
Carlisle, PA 17013
(CoWl8~lfor Defendant)
Oate;2.( M7t~c.b.. zc:o:"
Oate:~~
Edwin A,O, Schwartz,
McKissack & Hoffnian, .C,
Attorney ID, No,; 75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Attorneys fo( Additional Defendant,
Steve C, Nicholas, Esquire
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Edwin A.D, Schwartz, Esquire
Attorney LD, Number 75902
McKISSOCK & HOFFMAN, P,C,
2040 Linglestown Road; Suite 302
Harrisburg, PA 17110
(717) 540-3400, ex!. 24
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
GRACE BONNIE NEFF,
v,
KENNETH ROCKEY,
NO,: 2006-148 CIVIL
Defendant
Defendant
CNIL ACTION - LAW
I QUIET TITLE
PRAECIPE
v,
STEVE C, NICHOLAS,
To the Prothonotary:
Kindly withdraw and strike the Preliminary Objections of Additional Defendant,
Steve C, Nicholas to Defendant, Kenneth Rockey's Cross Claim in the above-referenced
matter.
The request to withdraw and strike the Preliminary Objections are based upon the
filing of the Stipulation of all counsel as filed with the Prothonotary on May 18,2006,
McKissock & Hoffman, P,C,
BY~~~~
Edwin A,D, Schw z quire
LD, No,: 75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Date: ......-3 .___-J/ <::>~
/
Attorneys for Additional Defendant
"
.
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Praecipe upon
the person(s) and in the manner indicated below, which service satisfies the requirements
of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United
States Mail, first-class postage prepaid, addressed as follows:
Samuel L. Andes, Esq,
525 North Twelfth Street
P,O, Box 168
Lemoyne, PA 17043
(Counsel for Plaintiff)
Hillary A, Dean" Esq,
Ten East High Street
Carlisle, PA 17013
(Counsel for Defendant)
McKissock & Hoffman, p,c.
BY:~~
Edwin A,D. Sch
Identification No.: 902
2040 Linglestown Road
Suite 302
Harrisburg, P A 17110
(717) 540-3400 .
Dated: 'Z:3 --;'V 0 Co
Attorneys for Additional Defendant,
Steve C, Nicholas
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PRAECIPE FOR USTING CASE FOR TRIAL
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
( )
(xxxx )
for JURY trial at the next term of civil court.
for trial without a jury.
(' 'n :-;:l
(xxxx )
( )
(xxxx )
Civil Action - Law
Appeal from Atbitratioo
Quite Title Action
GRACE BONNIE NEFF,
Plaintiff
The trial list will be called on ~ / A:',
and N / A . .
Trials commence on N / A.
vs.
Pretrials will be held on N / A (Briefs
are due 5 days before pretrials).
KENNETIi ROCKEY,
Defendant
(The party listing this case for trial
shall provide forthwith a copy of the
praecipe to all counsel, pursuant to
local Rule 214.1).
No.
2006 - 148 Civil
Indicate the attorney who will try case for the party who files this praecipe:
Samuel L. Andes, Esquire 525 North 12th Street, Lemoyne, PA 17043
Indicate trial counsel for other parties if known:
Hillary A Dean, Esquire
10 East High Street, Carlisle, PA 17013
This case is ready for trial.
,~
Samuel L. An e~ .
Attorney for Plaintiff
7 July 2006
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GRACE BONNIE NEFF,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V,
KENNETH ROCKEY,
DEFENDANT
: 06-0148 CIVIL
ORDER OF COURT
AND NOW, this 17th day of July 2006, the non-jury trial in the above
referenced case has been assigned to this Court, Prior to setting an actual trial date
IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-trial
memorandum with the Court on or before August 7,2006 in the following format:
I. A concise statement of factual issues to be decided at trial.
II, A list of witnesses the party intends to call at trial along with a concise
statement of their anticipated testimony,
III, A list of all exhibits each party anticipates presenting at trial.
IV, A statement of any legal issues each party anticipates being raised at trial
along with copies of any cases which may be relevant to resolution of the stated issue,
V, An estimate of the anticipated time needed for the party to present its case,
Upon receipt and review of these memorandums, the Court will set a trial date for
this case,
By the Court,
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Samuel L. Andes, Esquire
Attorney for Plaintiff
Hillary A. Dean, Esquire
Attorney for Defendant
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GRACE BONNIE NEFF,
PLAINTIFF
V,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
KENNETH ROCKEY,
DEFENDANT
: 06-0148 CIVIL
ORDER OF COURT
AND NOW, this 9th day of August, 2006, the non-jury trial in the above
referenced case will be held on Friday, October 20,2006 at 9:30 a,m. in Courtroom
No, 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania,
By the Court,
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M, L, Ebert, Jr.,
~muel L, Andes, Esquire
Attorney for Plaintiff
,A;lIary A. Dean, Esquire
Attorney for Defendant
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GRACE BONNIE NEFF,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
KENNETH ROCKEY,
Defendant
CIVIL ACTION - LAW
NO. 06-0148 CIVIL TERM
ORDER OF COURT
AND NOW, this 20th day of October, 2006, after
trial in this matter based on the stipulation of the parties
and after argument, it is hereby ordered and directed that
the parties shall submit proposed findings of fact to the
Court on or before the close of business Friday, November
3rd, 2006.
By the Court,
-\.~
Ebert, Jr., J.
~uel L. Andes, Esquire
For the Plaintiff
~lary
For the
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GRACE BONNIE NEFF,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
KENNETH ROCKY,
Defendant
CIVIL ACTION - LAW
NO. 2006-148 CIVIL TERM
IN RE:
TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE M. L. EBERT, JR., J.
Cumberland County Courthouse, Carlisle, Pennsylvania
on Friday, October 20, 2006, commencing at 9:30 a.m.
in Courtroom Number Five
APPEARANCES:
Samuel L. Andes, Esquire
For the Plaintiff
Hillary A. Dean, Esquire
For the Defendant
ORIGINAL
1 (Whereupon, Plaintiff's Exhibit Nos. 1, 2,
2 and 3 were marked for identification.)
3 (Whereupon, Defendant Exhibit Nos. 1 and 2
4 were marked for identification.)
5 THE COURT: This is the time and place for
6 Neff versus Rocky, a non-jury trial.
7 MR. ANDES: Yes, Your Honor.
8 THE COURT: Parties ready to proceed?
9 MR. ANDES: We are, and with your indulgence
10 I think we have agreed -- I know we have agreed to submit
11 the case on a set of stipulated facts. If I may, I will
12 recite them, and Ms. Dean will correct me if I go astray.
13 As you are aware, this is a matter involving an
14 installment sales agreement for the purchase by the
15 Defendant and the sale by the Plaintiff of real estate in
16 Lemoyne.
17 We have agreed that the document marked as
18 Plaintiff's Exhibit 1 is a true and accurate copy of the
19 installment sales agreement which both parties signed and
20 which is valid.
21 We have agreed that the document marked as
22 Plaintiff's Exhibit 2 is a true and correct copy of a quit
23 claim deed executed by Mr. Rocky in October of 2004 but not
24 recorded for some time thereafter, specifically on November
25 3rd of 2005. We have agreed that's a valid deed.
2
1 Plaintiff's Exhibit No.3 is a letter that I sent
2 to Mr. Rocky dated the 7th of November, 2005, with a release
3 that I asked him to sign releasing any claims under the
4 installment sales agreement marked as Plaintiff's Exhibit 1.
5 THE COURT: That was November the 7th?
6 MR. ANDES: Yes, of 2005. We have also
7 agreed that if called to testify, the Plaintiff would
8 testify that Mr. Rocky -- I'm sorry. The parties have
9 further agreed and stipulated that Mr. Rocky was in
10 possession of the property from October of 2001 through
11 November of 2004 and during that time he made a down payment
12 as required by the agreement of $10,000.00, and he made 31
13 payments of principal and interest of $643.70. Those were
14 the monthly installments of principal and interest.
15 And that he, in addition to that, for the same 31
16 months made payments of $115.82, which was an escrow
17 arrangement for the payment of real estate taxes and
18 homeowner's insurance, and that from those funds the
19 Plaintiff paid the real estate taxes and homeowner's
20 insurance.
21 Mr. Rocky vacated the property in November of '04.
22 His last payment was made in May of '04, but after he
23 vacated or -- strike that. After May he would testify that
24 he paid an additional $1,483.00 for electric service and
25 homeowner's insurance for the property for the period from
3
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May of '04 until April of '05, and his Exhibit No.1 are
copies of checks and a copy of a bill summary from PP&L.
We have agreed that would be admitted as an
exhibit although my client does not acknowledge she has any
liability to reimburse him for those expenses.
Defendant's Exhibit No.2 is an amortization
schedule for the principal balance due under the installment
sales agreement at the interest rate and with the payment
terms set out in the agreement, and we have agreed the
parties have agreed that Defendant's Exhibit 2 may be
entered as an exhibit.
The Defendant, I understand, will contend that he
should be reimbursed some portion of the principal that he
paid or all of the principal that he paid, and we do not
acknowledge or agree that he's owed that money but that may
be entered as an exhibit subject to my client's defense of
it.
We have also agreed that if my client were called
to testify, she would testify that upon her regaining
possession of the property in the spring of 2005, there were
damages to the property as follows:
There was a roof leak and damage to downspouts
that had caused water to leak into the second floor -- I'm
sorry, leak into the living room area near the fireplace
which damaged the plaster on the walls and the ceiling and
4
1 the stone face on the fireplace.
2 There was a solar panel tank in a rear porch area
3 that leaked and caused extensive damage to the floor and
4 caused mold problems. The carpet throughout the first
5 floor, but in particular in the living room area, was
6 damaged by a dog, was not damaged when my client entered
7 into the agreement with the Defendant.
8 When she moved back in, it was extensivley damaged
9 as were the vertical blinds in the living room, and those
10 items required replacement. My client would testify that
11 the total cost to affect the repair of these items is
12 $7,287.00.
13 The Defendant stipulates that that would be my
14 client's testimony although he does not stipulate that he
15 owes that money. Is that a fair statement of our
16 stipulation?
17 MS. DEAN: The only thing I would add, Your
18 Honor, is that the estimate or the amount of $1,483.55 is
19 not just for PP&L and homeowner's insurance, that also
20
21
22
23
24
25
includes UGI, sewer and trash, and water which those
exhibits are in -- all in that packet.
THE COURT: And that's Defendant's Exhibit
No. I?
MS. DEAN: Correct.
MR. ANDES: So utilities and homeowner's
5
1 insurance for that period of time --
2 MS. DEAN: Is all included in May.
3 MR. ANDES: May of '04 until sometime in
4 April of '05. And with that, Your Honor, unless you feel
5 the necessity of any factual questions you would like us to
6 address, we're willing to allow that to be the record in the
7 case.
8 We each have some argument to make, and I think
9 the legal issues are probably what -- my position is the
10 legal issues will decide the case.
11 THE COURT: There was some -- I may have
12 improperly, you know, adduced this myself, but I caught
13 something in either the pleadings and/or your briefs,
14 pretrial memorandums, in regard to the fact that there was
15 almost a second contract to agree to terminate the first
16 contract.
17 That, you know, that was the negotiation about the
18 quit claim deed and that really I'm not in breach because I
19 never, A, the Plaintiff never told me, and, B, we really had
20 negotiated the ending of this entire thing, so consequently
21 I'm not in breach and the forfeiture clause that's pretty
22 obvious in Plaintiff's Exhibit No.1 doesn't come into play.
23 I didn't hear -- and that's a major factual dispute.
24 MR. ANDES: We don't have any evidence to
25 that, Your Honor.
6
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2
3
4
5
6
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MS. DEAN: That would be Defendant's
position, Your Honor.
THE COURT:
MR. ANDES:
But you realize record wise
There isn't any evidence of it in
the record, that's correct.
THE COURT: I'll leave it at that.
MR. ANDES: All right.
THE COURT: I'm probably going to -- again,
I've read this extensively, but I'm probably going to ask
you to just layout -- this doesn't seem tremendously
lengthy, but probably your proposed findings of fact with
regard to this case.
I'm not even positive about any more law on this.
I mean I'm assuming, Ms. Dean, you're basically relying on
that new restatement. It's not new any longer, but the
restatement of torts basically saying she shouldn't get a
windfall in all of this.
And I think, Mr. Andes, you're probably relying on
your forfeiture clause in saying there really wasn't any
windfall. We're about even with regard to -- even if you
accepted, you know, the total amount of payments and now I
have damages, and, you know, you had to pay that insurance
because he was still in possession of the place, was
required to do that under the escrow.
So I'm going to ask you then for proposed findings
7
1 of fact with regard to that. I would be happy to hear oral
2 argument, or if you prefer to do it in writing, that's
3 really up to you.
4 MR. ANDES: I am prepared, and I think it may
5 be helpful if we offered some oral argument, and then if
6 there's something you would like us to expand upon we can
7 address that in writing if you would.
8 THE COURT: Everyone is agreed, though, I'm
9 going to ask you for, you know, one through however of your
10 proposed findings of fact, and then based on this record,
11 pursuant to these stipulations, make a decision.
12 Would it be necessary to have those stipulations
13 transcribed, and would you like an opportunity to look at
14 them between you or --
15 MR. ANDES: I think they're simple enough,
16 Your Honor.
17 MS. DEAN: They're fine.
18 MR. ANDES: We wrote them down even.
19 THE COURT: Okay. Great. All right. Ms.
20 Dean.
21 MS. DEAN: Your Honor, it is Defendant's
22 position in this case that there was no breach of the
23 contract; however, we will be laying that out in our
24 proposed findings of fact.
25 However, Defendant's argument would be that even
8
1 if it were to be found that he was in default of the
2 contract and in breach, that the Plaintiff would not be
3 entitled to receive a windfall in this case.
4 Mr. Rocky lived in the home from October 2001
5 through -- or his wife through November of 2004, which is
6 about three and a half years. At that time he put down
7 $10,000.00 towards the purchase price of the home, and the
8 exhibit 2, Defendant's Exhibit 2, shows that those payments
9 that were made to him from November of 2001 through May of
10 2004, so that he had put down about $876.22 as principal,
11 towards the principal purchase price of the property.
12 We're looking at about, you know, $18,000.00 there
13 plus the other part -- portion of the payment that had gone
14 to interest. The, you know, essential restatement does
15 state that, you know, even if a party is in breach, the
16 opposing party or the non-breaching party should not receive
17 a windfall.
18 And in this case Mrs. Neff would be unjustly
19 enriched by the retention of the $10,000.00 as well as the
20 principal purchase price which would be money he paid in
21 principal, not the interest, but the principal, the $876.22.
22 Furthermore, after Mr. Rocky and his wife did
23 leave the premises altogether -- they signed the quit claim
24 deed in October of 2004 -- Mr. Rocky continued to make
25 payments of the utilities, the homeowner's insurance, as
9
1 well as UGI, water bills, and that amount as we stipulated
2 to was $1,483.55.
3 Again, Mr. Rocky's position is that even if he
4 were in breach of the contract, which at all times he
5 maintains he is not, should Mrs. Neff be permitted to keep
6 those portions of his purchase price, she would be unjustly
7 enriched.
8 Further, I would like to state I believe that
9 there is going to be some argument about some damages to the
10 premises; however, I would like to note that Plaintiff's
11 complaint does not anywhere state that the premises were
12 damaged at any time that Mr. Rocky was in occupation of the
13 property.
14 The action simply in quiet title and from our
15 understanding the Plaintiff only was seeking something else
16 besides a quiet -- a quit claim deed to be signed to
17 terminate any rights that Mr. Rocky had in the property.
18 At all times Mr. Rocky's position is that when he
19 signed a quit claim deed, he felt that did terminate the
20 contract and the reason that the quit claim deed was not
21 immediately filed -- it was filed a year later -- was as we
22 will show in our proposed findings of fact because Mr. Rocky
23 was to be paid his $10,000.00 down money, and if he were to
24 get up and testify he would say Mrs. Neff was buying the
25 property back from him.
10
1 Again, while there isn't a huge expanse of cases
2 on this matter, there is case law to suggest that even if it
3 were to be found that Mr. Rocky is in default or was in
4 breach, he is still entitled to portions of the principal
5 purchase price of the property.
6 The other amounts would be fair to say that those
7 would be considered rents for the time that he occupied the
8 property if it were -- he would not be claiming those
9 amounts. Other than that, I believe that that would be our
10 position at this time.
11 MR. ANDES: Well, Your Honor, first of all
12 there is no testimony -- there's no evidence about any
13 agreement to modify or reform this contract, and for there
14 to be a reformation there would have to be a subsequent
15 agreement which would require consideration, and there's
16 nothing in the record to support that.
17 What we have is an installment sales agreement.
18 We have a default, and we have a continuing occupancy after
19 the default for some period of time. We acknowledge
20 payments were made pursuant to the installment sales
21 agreement, a $10,000.00 down payment, a $643.70 of principal
22 and interest as agreed, plus an amount to reimburse my
23 client the homeowner's insurance and real estate taxes that
24 she was required to pay and, in fact, did pay.
25 The case law that Ms. Dean refers to, and she
11
1 referred to them in her pretrial memorandum, consist, number
2 one, of a case by this Court, by Judge Bayley in 1984, I
3 believe, in which he found that in the absence of a
4 forfeiture clause, there could be restitution, but he made
5 it very clear that in the absence of that -- that is only in
6 the absence of a forfeiture clause.
7 The other case that she cited and frankly the only
8 case that I can find that departs from the cornmon law on
9 this point is Lancelloti versus Thomas, which was decided in
10 1985, in which the Superior Court adopted the restatement of
11 restitution and said that if there is a disporportionate
12 benefit to the seller, the buyer may recover the
13 disproportionate benefit.
14 Now, in doing so, that case -- by the way,
15 Lancelloti and Thomas involved not the sale of real estate,
16 but the sale of tangible personal property. But more
17 importantly, even if you take the Defendant's argument at
18 the most beneficial and the strongest and say the
19 restatement of restitution does apply here, the restatement
20 specifically excludes recovery in the face of a forfeiture
21 clause, and I'm reading now from Paragraph 2 of Section 357,
22 and this is cited and quoted in the Lancelotti opinion.
23 The Plaintiff has no right to -- the Plaintiff
24 being the buyer who is himself breached the contract, the
25 Plaintiff has no right to compensation for his partial
12
1 performance if it is merely a payment of earnest money or --
2 this is the part I emphasize if the contract provides it
3 may be retained and it's not so greatly in excess of the
4 Defendant's harm that the provision is rejected as imposing
5 a penalty.
6 Now, we don't have any proof here by the Defendant
7 of the rental value of the property or what he contends was
8 the excess benefit he conferred. All he told us -- all the
9 record reflects is what he paid, and he had the unfettered,
10 unlimited, unconditional occupancy of that property for 36
11 or 37 months.
12 If he believed that the money he paid exceeded the
13 benefit he received by occupying the property, the burden is
14 on him to prove that, and one way to prove it would be to
15 come in with credible evidence or proof of a rental value or
16 an occupancy value of the property, which he has not done.
17 The forfeiture clause therefore controls whether
18 we follow the restatement or whether we follow the common
19 law rule, which is also cited in Lancelotti and quoted at
20 length because there's a forfeiture clause.
21 And in the face of a forfeiture clause, unless the
22 Defendant proves such an excess benefit to my client as to,
23 in effect, be a penalty, which he hasn't done, then the
24 forfeiture clause provides my client can retain the money.
25 THE COURT: Even Judge Bayley's opinion -- he
13
1 still recognizes that even if a contract has a forfeiture
2 clause, it must bear reasonable relationship to the harm
3 caused by the breach. How do you describe the harm that
4 your client suffered here?
5 MR. ANDES: Well, she suffered harm in two
6 ways, actually three ways. An immediate way was that she
7 did not have occupancy of this property for a period of 37
8 months while the Plaintiff or the Defendant did, and that's
9 a loss. That's a financial loss. Just like if I can't live
10 in my house.
11 She also when she moved back in found rather
12 extensive damages, and the total cost of those is going to
13 exceed $7,000.00. So there are two types of damage that she
14 received.
15 Another type of damage is that after this man's
16 default, she no longer received the monthly payments of
17 $643.00. Now, she eventually got back occupancy of the
18 property, but she lost the bargain of the sale.
19 So those are the three damages I think she
20 suffered, and I think they're very real as opposed to Mr.
21 Rocky's contention that somehow she received this great
22 benefit, but he hasn't proven what that benefit is or what
23 it's worth.
24 THE COURT: Ms. Dean, and I guess this was
25 always the issue here about -- you know, when I put all
14
1 these payments together, and I think I came up -- this isn't
2 precisely correct -- but I added the $10,000.00 and there
3 was still some dispute whether there were 31 payments or 33.
4 I think you've now stipulated that there were 31 payments.
5 You do all the math and someplace you get in there
6 to around $31,000.00 or something, and you divide that out
7 by the total amount of months that the person was in the
8 home, it comes out to something like less than a thousand
9 dollars a month to occupy a full house. Where are you
10 seeing a tremendous unjust enrichment here? What are you
11 looking at?
12 MS. DEAN: Well, first of all, you know, we
13 feel that we shouldn't even be at this argument because we
14 feel they were not in breach of the contract and that the
15 forfeiture clause shouldn't apply.
16 If you read that installment sales contract on
17 Page 6, Paragraph 19, states that in determining a breach
18 time is of the essence. Mr. Rocky was never notified that
19 he was in breach until a year after the quit claim deed was
20 filed.
21 THE COURT: I've read that with interest but,
22 you know, the terms of describing the breach, I think it
23 went 15 days without making payment after a payment was due.
24 Do you really believe that, you know, you could go for a
25 whole year having not made a payment, and said, gee, I
15
1 really don't believe I'm in breach. Does that sound
2 credible?
3 MS. DEAN: Well, Your Honor, you know, we
4 would contend that it wouldn't have been a whole year, that
5 Mr. Rocky went ahead and terminated his rights in the
6 contract by signing a quit claim deed in October of 2004.
7 In June of 2004 --
8 THE COURT: That's true, but that means the
9 quit claim deed came five or six months after the time
10 that's described in the contract as when you're in breach,
11 which is 15 days after making a payment.
12 You know, your client seems to be expanding that
13 idea of, I'm going to put on blinders and, you know, until
14 somebody tells me I'm in breach even though I'm not making
15 any payments, I'm not in breach. That's hard for me to get
16 over that.
17 MS. DEAN: And that would be the argument
18 that the two had made the agreement at that time when Mr.
19 Rocky fell into some financial difficulty to go ahead and
20 terminate the contract, and, you know, return the premises
21 or any rights that he had in the premises back to Mrs. Neff.
22 You know, Plaintiff states that, you know, she had
23 no occupancy of the property for 36 months or 33 months, but
24 they're never denying that, you know, Mr. Rocky did make
25 payments towards the property from November of 2001 through
16
1 July or May 2004.
2 And again I would reiterate that the damages that
3 have been brought up today were never sued for or brought up
4 in any action. There was never any action in ejectment
5 brought towards Mr. Rocky.
6 While he did exit the premises In November or
7 October and his wife in November of 2004, Mrs. Neff's
8 daughter did then occupy the property from November or
9 December of 2005 forward, you know, and --
10 THE COURT: Is that in the record anyplace?
11 MR. ANDES: No. What we agreed to in the
12 record, Your Honor, and I think Ms. Dean will agree, was
13 that Mr. Rocky had occupancy of the property from the 11th
14 of October, 2001, through November of 2004. After that
15 possession was returned to my client.
16 THE COURT: Okay. Understand.
17 MS. DEAN: And again, as we were saying, we
18 would, you know, our first position would be that the
19 forfeiture clause does not apply here, and that, you know,
20 if time is of the essence regarding a default, there's no
21 mention of any default until after a quit claim deed was
22 already filed.
23 The quit claim deed in Mr. Rocky's mind did
24 terminate any rights he had to the property, which was
25 signed and was filed. Unfortunately it wasn't filed until a
17
1 year later, but it was signed in October of 2004. It wasn't
2 filed until November of 2005, but it was signed.
3 At that point, you know, he would have testified
4 and, you know, we'll show in our proposed findings of fact
5 that there was an agreement, although it was orally, between
6 the two that, you know, they were friends.
7 They were going to go ahead and terminate the
8 contract. Mr. Rocky was in, you know, having a hard time as
9 far as financially went, and he wasn't going to make an
10 issue of whatever was a default or a non-default.
11 Again, you know, the harm that she has suffered, I
12 don't see any great harm that she has suffered, and, you
13 know, Mr. Rocky has suffered a harm in that he said about
14 purchasing a home and, you know, put $10,000.00 down and
15 continued to occupy it for three and a half years, then made
16 an agreement to go ahead and terminate that, you know,
17 without ever going ahead and trying to work out a payment
18 plan or anything after he had one check that bounced decided
19 okay I'll go ahead and relinquish my rights in the property.
20 Now he's out of that money that he could have put towards
21 another home.
22 THE COURT: Okay.
23 MR. ANDES: If I may, virtually ninety
24 percent of what she just said is not in the record. If you
25 want to, I suppose we can debate the party's financial
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circumstances or whatever, but I want to make, if I may,
just two comments.
It's true that when we filed this complaint, we
did not seek damages for the repairs that my client had to
make, and we're not asking you to award a monetary judgment
against this man.
We're asking you to enter a decree in our quit
claim or quiet title action to make it clear that he has no
further rights in the property. We asked him to do that
voluntarily, and he never responded, which is why we had to
file this action several months later. That's what we're
after.
He is the one that has the burden to demonstrate
somehow my client received the benefit far and beyond what
her loss of occupancy was worth. He has not done that. All
we're asking is that you deny his counterclaim to suggest
that my client suffered no damage, when, in fact, she was
out of the property and had no benefit from it except his
payments.
All we're asking is that she be allowed to retain
those payments and that you enter a decree quieting the
title so that there's no dispute about anybody's rights in
the property in the future.
THE COURT:
MR. ANDES:
Okay.
Thank you.
19
1 THE COURT: Okay. Thank you very much. I'll
2 enter this order:
3 AND NOW, this 20th day of October, 2006, after
4 trial in this matter, based on the stipulation of the
5 parties and after argument, it is hereby ordered and
6 directed that the parties shall submit proposed findings of
7 fact to the Court on or before close of business Friday,
8 November 3rd, 2006.
9 MR. ANDES: Fine. Thank you, Your Honor.
10 THE COURT: Thank you very much. We'll stand
11 in recess.
12 (Whereupon, the proceedings were concluded at
13 10:10 a.m.)
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~
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
the same.
~f.~an~Jf.an.d/~
Official Court Reporter
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and
directed to be filed.
'\\\S\ \)(0
,
Date
OS :6 \~~ 9 I {'ION SOOZ
N:lV.LQ;.\Ur j,UJUd 3Hl :10
381:!:.10-{]:1l1.:l
GRACE BONNIE NEFF,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v,
KENNETH ROCKEY,
DEFENDANT
: 06-0148 CIVIL
ORDER OF COURT
AND NOW, this 9th day of November, 2006, following trial in the above
captioned matter we find by a preponderance of the evidence in favor of the
Plaintiff and thereby order that the Quit Claim Deed dated October 13, 2004 and
recorded in the Recorder of Deeds Office in Cumberland County, Pennsylvania
in Deed Book 271 at page 3879 is fully valid, and accordingly Defendant Kenneth
Rockey is forever barred from asserting any right, lean, title, or interest in or to
the property at 1117 Walton Street in the Borough of Lemoyne, Cumberland
County, Pennsylvania, as is more particularly described in the aforementioned
deed.
On the Defendant Kenneth Rockey's counter claim, the Court finds in
favor of Grace Bonnie Neff and therefore DENIES Defendant's request for
monetary damages, fees and costs.
By the Court,
~~u1
J.
M. L. Ebert, Jr.,
Hillary A. Dean, Esquire
Attorney for Defendant
> Il---t{-t)' ~ ~
Jl-l5
Samuel L. Andes, Esquire
Attorney for Plaintiff
bas
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