HomeMy WebLinkAbout02-1221GLENN HERMAN,
Plaintiff
PAUL E. DICK,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:NO. 02- /~o~! ~
:IN EQUITY
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may procccd without
you and a judgment may be entered against you by the Court without further notice for
any money claimed in the Complaint of 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, PA 17013
(717) 249-3166
GLENN HERMAN,
Plaintiff
PAUL E. DICK,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
· NO. 02- {3)
:IN EQUITY
COMPLAINT
Back.qround
1. Plaintiff, Glenn Herman, is an adult individual residing at 22 Henry Road,
Branchburg, Somerset County, New Jersey 08876.
2. Defendant, Paul E. Dick, is an adult individual presently residing at 1100
Enola Road, Carlisle, Cumberland County, Pennsylvania, 17013.
3. On or about June 5, 2001, Plaintiff signed an Agreement for the Sale of
Vacant Land (the "Agreement') offering $168,000.00 for approximately 70 acres of
property located at 671 Old Mill Road, Lower Frankford Township, Cumberland County
Pennsylvania owned by the Defendant.
4. The Agreement, a copy of which is attached hereto as Exhibit A, was
transmitted to Defendant through agents of Jack Gaughen Realtors.
5. On or about June 8, 2001, Defendant modified the Agreement, including
increasing the purchase price to $180,000.00, initialed all changes and signed the
Agreement.
6. At the same time, Plaintiff reviewed and signed a Statement of Estimated
Seller's Costs sheet, which sheet estimated anticipated costs of the transaction and
seller's procccds therefrom. A copy of this document is attached hereto as Exhibit B.
7. Peter Karl(alas, a realtor employed by Jack Gaughen Realtors, was
present at the time that Defendant signed the Agreement and Statement of Estimated
Seller's Costs and spent sufficient time with Defendant to ensure that all provisions and
information were explained to and understood by Defendant.
8. All modifications mede to the Agreement by Defendant were accepted by
Plaintiff, as evidenced by his initials, which were handwritten next to each change.
9. On June 8, 2001, Plaintiff tendered a check and two (2) money orders
totaling $2,500.00, copies of which are attached hereto as Exhibit C, as payment of the
down payment required in the Agreement.
10. Promptly upon execution of the Agreement, Plaintiff secured a home
equity loan on his current home with which to purchase the subject property, and wes
fully prepared to fulfill his obligations under the Agreement.
Plaintiff remeins fully prepared to fulfill his obligations under the
11.
Agreement.
12.
After executing the Agreement, Defendant, through his attorney, asked
Larry Neidlinger, an Engineer, to start the process of subdividing the property, as
required by state and local law.
13. Mr. Neidlinger substantially completed a plan and delivered it to
Defendant's attorney. A question remained as to the exact line along which the
property was to be divided.
14. The subdivision process was halted because of Defendant's refusal to
cooperate in providing the details necessary to complete the plan.
15. In reliance upon the Agreement, Plaintiff asked Mr. Neidlinger to begin the
engineering work required by state and local law to develop this property, which work
Mr. Neidlinger agreed to perform at an estimeted cost of $3,200.
16. Mr. Neidlinger did walk through the property with Plaintiff, pointed out the
boundaries, identified appropriate locations for the soil and water testing, and prepared
a plan to set off a small lot occupied by the mobile home identified in the Agrccment.
Count 1 - Specific Performence
Plaintiff hereby incorporates paragraphs 1 through 12 as if fully set forth
17.
herein.
18.
In addition to arranging sufficient financing to complete this transaction,
Plaintiff did, in reliance on the executed Agreement, contract with Larry Neidlinger,
Engineer, to perform preliminary tests in anticipation of developing the subdivided
property.
19. Plaintiff remains fully prepared to tender payment in full pursuant to the
terms of the Agreement.
20. Plaintiff has had to delay plans to relocate into Cumberland County from
New Jersey and has put all plans related to his relocation on hold.
21. Despite repeated attempts by Plaintiff and by his real estate agent, Bill
Myers, to contact Defendant and proceed with this transaction, Defendant has refused
to take any action and has repudiated the contract.
WHEREFORE, for all the above reasons, the Plaintiff, Glenn Herman,
respectfully requests that this Court order the Defendant, Paul E. Dick, to honor the
Agreement for the Sale of Vacant Land executed by him on June 8, 2001.
22.
herein.
23.
Count 2 - Breach of Contract
Plaintiff hereby incorporates paragraphs 1 through 12 as if fully set forth
Plaintiff intended to further subdivide and develop this property upon
completion of its purchase. Defendant's action has caused Plaintiff to lose any profit he
may have earned in the sale of the subdivided lots, which profit he estimates to be
$100,000.
24. As a result of Defendant's refusal to perform according to the Agreement,
Plaintiff has suffered the loss of out-of pocket expenses which he incurred in reliance
upon the Agreement. These expenses include the $2,500 down payment, $3,200 owed
to Mr. Neidlinger, attorneys' fees of $1,267.50, and costs of suit.
WHEREFORE, for all the above reasons, the Plaintiff, Glenn Herman,
respectfully requests that this Court grant to him and against Defendant a judgment in
the amount of $106,967.50 plus costs of suit, which amount represents all expenses
incurred by Plaintiff in reliance upon the Agreement.
Date
Respectfully Submitted
TURO LAW OFFICES
J~oSu~'pl~t~lrSe~°~' ~squire
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
EXHIBIT A
1 1.
3
5
AGREEMENT FOR THE SALE OF VACANT LAND
· This form recommended and approved for. but not restricted to use by, the mmnbers of the pennsylvania Association of REALTORS® (PAR).
MS-VL
· PA LICENSED BROKER, ~
LISTIN~;Ji, ROKE[t (,~ompany)~t~. ~ ~t
DESIGNATED AGENT FOR SELLER (if applicable)
PA LICENSED BROKER
SELLING BROKER (Company)
ADDRESS ~
PH J FAX
DESIGNATED AG1ENT FOR BUYER (if applicable)
2 0 ~.~[ ,is between
called "Seller," and
called "Buyer."
6 2. PROPERTY (1-98) Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase:
7 ALL,THAT CERTAIN lot or J/ieee of R.round with buildings aqd improvemgr~ts there~%ted, if any, known as:
9 in the of
t ~ County of in the Commonwealth of Pennsylvania, Zip Code
tl Identification (e.g., Tax 1D0; Parcel #; Lot, Block, Deed Book, Page, Recording Date)
12 3. TERMS (1-00) ~
70 t
Dollars
6
7
6
,
11
13
15
16
17
18
19
21
22
23
24
25
~7
~8
29
31
32
33
16
which will be paid to Seller by Buyer as follows:
(B) Cash or check at signin~th~ Agreement: $
Cash or check within ~ ~ys of the execution of this Agreement:
(D) - $ '
(E) Cash, cashier's or c,~ified check at time of se~lement: ~L
(~ ~si~ p~d on account of p~cha~ price to ~ held by Listing Broker, ~ess '~ise sated he~: /
(G) Seller's wfi~en approval to ~ on or ~fo~: ~ ~} ~ ~ ~, %~ 23
(H) Settlement ,o ~ made on or ~fore: 7~ ~ ~- % ~ ~ i ~ a O (
(I) Conve ance from Seller will ~ b fee simple deed of s~cial wa~y unless o~emise sated hem: /Of
(J) Pa meat of tr~sfer axes will ~ divided equally ~tween Buyer and Seller unless otherwtse sated here:
At time of ~ffiement, ~e following will ~ adjusted pro-ram on a daily b~is ~tween Buyer and Seller, ~imbursing wh~re~
(K) taxes; ~nts; inte~st on financing ~sumptions; homeowner ~s~iation fees, if any; water ~d/or sewer fees, if any, togeths~.~
other lienable municipal se~ices. ~e ch~ges a~ to ~ pro-rated for ~e ~fi~(s) covered: Seller will pay up to and incl~~
of settlement; Buyer will pay for all days following settlement, unless otherwise stated here:
34 4. FIXTURES AND PERSONAL PROPERTY (1-00} 34
36 (A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property, free of liens. Also included: 35
36 36
37 (B) LEASED items (items not owned by Seller): 37
38 38
39 (C) EXCLUDED: 39
40 49
41
42
43
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
SPEC1AL~LAUSES (1-00) 4~
(A),~B~uyer and Seller have received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.366. 42
(B) ,,~f~Buyer and Seller have received a statement of their respective estimated closing costs before signing this Agreement of Sale· 43
(C) [] Buyer has received the Deposit Money Notice (for cooperative sales when Listing Broker is holding depo~tn, oney) before signing ~4
this Agreement. ~ . ~ _ I '---..~, '~,~'
(D) The following are a part of this ngreement ifcheckod: ~r 2 ~'~- 7& g'~._~/
[] Tenant-Occupied Property Addendum (PAR Form TOP) t ..L ~"¢-' . ~t.., ,, ~ ,~ ~> ~4~
Buyer lnitlals:ra~~/:
BPelBnlylvmnil A,l~)dltJon of
REALTORS®
6. __FINANCING CONTINGENCY (1-00)
[] WAIVED. This sale is NOT contingent on financing. ~-.,,~'~
[] ELECTED
(A) This sale is contingent upon BuyeLobtai_ni_ng ~n~c~il~ as follows:/,e-'T/
1. Amount of loan $ . · t'
2. Minimum Term ~ th ~ years
!
3. Type:"J~.~nd Acquisition Only
[] Land Acquisition and Construction
[] Other
§8
70
72
73
74
75
4.Interest rote ~' %; however, Buyer agrees to accept the interest rate as may be committed by the lender, not to exceed
a maximum interest rate of ~'/ %.
5. Discount points, loan origination, loan placement and other foes charged by the lender as a percentage of the loan (excluding any insur-
ance premiums and VA funding fee) not to exceed O % of the loan.
The interest rate and fees provisions required by Buyer are satisfied if a lender makes available to Buyer the right to guarantoe an interest rate
at or below the Maximum Interest Rate specified herein with the percentage foes at or below the amount specified herein. Buyer gives Seller
the right, at Seller's sole option and as permitted by the lending institution and applicable laws, to contribute financially, without promise of
reimbumement, to the Buyer and/or lender to make the above terms available to Buyer.
(B) Within 10 days of the execution of this Agreement, Buyer will make a completed, written financing application to a responsible lending insti-
tutinn. The Selling Broker, if any, otherwise the Listing Broker is authorized to communicate with the lender for the purposes of assist-
lng in the loan process.
(C) 1. Upon receipt of a financing commitment, Buyer and/or Selling Broker will promptly deliver a copy of the commitment to Listing Broker,
if any, otherwise to Seller.
2. Financing commitment date '~"t.A.- ( ~ '~_ 7, ~. O 0 t . If a written commitment is not received by
Listing Broker, if any, otherwise by Seller, by"the above d~te, Buyer and geller agroe to extend the commitment date until Seller ter-
minates this Agreement in writing.
3. Seller has the option to terminate this Agreement in writing, on or after the financing commitment date, if the financing commitment:
a. Is not valid until the date of settlement, OR
b. Is conditioned upon the sale and settlement of any other property, OR
c. Contains any other condition not specified in this Agreement.
4. In the event Seller does not terminate this Agreement as provided above, Buyer has the option to terminate this Agmemant in writing if
the financing commitment:
a. Is not obtained by or valid until the date of settlement, OR
b. Is conditioned upon the sale and settlement of any other property which do not occur by the date of settlement, OR
c. Contains any other condition not specified in this Agreement which Buyer is unable to satisfy by the date of settlement.
5. If this Agreement is terminated as specified in paragraphs 6 (C) (2), (3) or (4), all deposit monies paid on account of purchase price will
be returned to Buyer. Buyer will be responsible for any premiums for mechanics lien insurance and/or title search, or fee for cancellation
of ,same, if any; AND/OR any premiums for flood insurance and/or fire insurance with extended coverage, insurance binder charges or
cancellation fee, if any; AND/OR any appraisal fees and charges paid in advance to lender.
(D) .~Sell~r Assist
~ NOT APPLICABLE
"[] - APPLICABLE. Seller will pay:
[] $ , maximum, toward Buyer's costs as permitted by the lender.
7. INSPECTIONS (1-98) t
(A) Seller hereby agrees to permit inspections by authorized appraisers, reputable certifiers, insurer's representatives, surveyors, municipal officials
and/or Buyer as may be required by the lending institutions, if any, or insuring agencies. Seller further agrees to permit any other inspections
required by or provided for in the terms of this Agreement. /1:~
(B) Buyer agrees that Buyer, or anyone on the Property at Buyer's direction or on Buyer's behalf, will leave the Property in its same condition. In ! 14
the case of damage, Buyer will bear the risk of restoring the Property or of reimbursing Seller for any loss of value, t
(C) Buyer reserves the right to make a pre-settlement inspection of the Property. Buyer's right to make this inspection is not waived by any other
provision of this Agreement. t
8. STATUS OFWATER (1-00)
(A) .An.off-Property source of water
~ is not available for the Property.
[] is available for the Property through (Name of Service Provider)
I~.wANECTION TO OFF-PROPERTY WATER SOURCE CONTINGENCY'
IVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on determining that the terms of connecting
the Property to an off-Property water source are acceptable to Buyer. Buyer WAIVES THIS OPTION and agrees to the RELEASE set forth in
paragraph 23 of this Agreement.
[] ELECTED. Buyer will, within days of the execution of this Agreement and at Buyer's expense, determine the terms of connecting
the Property to the water source. If the terms of connection are not acceptable to Buyer, Buyer will:
1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR
2. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement of Sale will be VOID. t~
[] (B) Seller represents that Property is served by an on-site water source. ';31
,~-SITE WATER SERVICE INSPECTION CONTINGENCY t
WAIVED. Buyer acknowledges that Buyer has the option to request an on-site water service inspection of the Property. BUYER WAIVES t.q3
THIS OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement. 134
[] ELECTED 135
1. Buyer has the option, within days of the execution of this Agreement and at Buyer's expense, to deliver to Listing Broker, if any, t
otherwise to Seller, a written inspection report by a qualified, professional water testing company of the quality and/or quantity of the on-
site water service. 1
2. Seller agrees to locate and provide access to the on-site (or individual) water system, if applicable, at Seller's expense, if required by rite
inspection company.
3. If the report reveals that the water service does not meet the minimum standards of any applicable goveromental authority and/or falls to 141
satisfy the requirements for quality and/or quantity as set by the lender, if any, then Seller will, within __ days of receipt of the
report, notify Buyer in writing of Seller's choice to: 143
a. Upgrade the water service to the minimum acceptable levels, before settlement, in which case Buyer accepts the Property and 144
agrees to the RELEASE set forth in paragraph 23 of this Agreement, OR
b. Not upgrade the water service.
4. If Seller chooses not to upgrade the service to minimum acceptable levels, or falls to respond within the time given, Buyer will, within 117
days, either: ~ ta
a. Accept the Property and the water service and, if required by the lender, if any, and/or any governmental authority, upgrade the water
service before seulement or Within the time required by the lender, if any, and/or any governmental authority, at Buyer's expense
and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in paragraph 23 of this t
Agreement. If Seller denies Buyer permission to upgrade the water service, Buyer may, within 5 days of Seller's denial, terminate t
this Agreement. If Buyer terminates this Agreement, all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement of Sale will be VOID, OR
b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer t
and this Agreement of Sale will be VOID.
[] (C) Buyer is aware that there is no developed water source for the Property.
ON-SITE WATER SERVICE APPROVAL CONTINGENCY
[] WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on receiving municipal approval for the instal- t 59
lation of a well. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement.
Buyer initials~__
A/S-VL Page 2 of 6
Seller Iuitials:
16fi [] ELECTED. Within l0 days of the execution of this Agreement, Buyer will make a completed, written application for the municipal approval 15~
1 ~ 7 for the installation of a well. This sale is contingent upon Buyer obtaining, within days of the execution of this Agreement, munjci- 18·l
{68 pal approval for the installation of a well. Buyer will pay all costs associated with the application for approval, including but not limited to,
tt~ any municipal fees and test expenses. In the event Buyer is unable to secure approval for well installation, Buyer will either:
1 ltl I. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR 170
!?~ 2. Terminate this Agreement of Sale, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer 1 ~1
t72
~72 and this Agreement of Sale will be VOID.
173 9. STATUS OF SEWER (1-00) 174
i7~ (A) Seller represents that Property is served by:
17~ [] Off-Property Sewage Disposal System
1;'fi I'"l Individual On-Lot Sewage Disposal System (See Sewage Notice 1)
t ?·1 [] Individual On-Lot Sewage Disposal Sysfem in Proximity to Well (See Sewage Notice 1; see Sewage Notice 4, if applicable) ~ 77
178
t18 [] Ten-acre Permit Exemption (See Sewage Notice 2) i73
~ I~ ~ Holding Tank (See Sewage Notice 3) 188
1~0 None (See Sewage Notice 1)
181 [] None Available (See Sewage Notice 5 or Sewage Notice 6, as applicable)
183 (B) Connection to an off-Property sewage disposal system
1 g~. [] is not available for the Property. ~ 85
I~18 [] is available for the Property through (Name of Service Provider) 188
~ ~§ PUBLIC SYSTEM CONTINGENCY
la? [] WAIVED. Buyer acknowledges that Buyer has the option to make this Ag~ement contingent on receiving municipal approval for the con- t~?
lf3~ nection of the Property to a sewage disposal system. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 23 ~
~3~
1~9 of this Agreement.
~9o [] ELECTED. Within 10 days of the execution of this Agreement, Buyer will make a completed, written application for the municipal approval
i ~ I for the connection of the Property to a sewage disposal system. Th s sale is contingent upon Buyer obtaining, within days of the exe-
~ ~ cution of this Agreement, municipal approval for the connection of the Prope~o' to a sewage disposal system. Buyer will pay all costs associ-
1~3 ated with the application for approval, including but not limited to, any municipal fees and test expenses. In the event Buyer is unable to secure ~
~q4 approval for sewer connection, Buyer will either:
~ ~ 1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR ~
i~i 2. Terminate this Agreement of Sale, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer
1
I? and this Agreement of Sale will be VOID.
~98 ~(C~. INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSTALLATION CONTINGENCY
laa ~r WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on receiving all applicable government
ZOO ..~'X approval for the installation of an individual sewage system· BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth ~n para
z0l graph 23 of this Agreement. ~2
202 [] ELECTED. Within I 0 days of the execution of this Agreement,
2~ [] Buyer
~4 [] Seller
205 will make a completed, written application to all appropriate authorities for the installation of an on-lot sewage disposal system, and will pay
206 all costs associated with the application for approval, including but not limited to, any fees and percolation test expenses. This sale is contin-
207 gent upon the receipt of all applicable government approval for the installation of an individual sewage system within days of the %';
2~8 execution of this Agreement. In the event test results are unacceptable to Buyer or approval for an individual sewage system is unable to be
,'0~ secured, Buyer will either:
~: ~ 1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR 2l
2t ~ 2. Terminate this Agreement of Sale, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer ::
2{~ and this Agreement of Sale will be VOID. Buyer will promptly deliver all information and test results acquired through the approval ;",2
213
y~3 process to Seller.
~,4 ~tD~ INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY · 714
~qs' ~ ,~ WAIVED. Buyer acknowledges that Buyer has the option to request an individual on-lot sewage disposal inspection of the Property. BUYER ~
~'16 WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement.
717 [] ELECTED
?18 1. Buyer has the option, within days of the execution of this Agreement and at Buyer's expense, to deliver to Listing Broker, if any, ~'~
:¢ t§ otherwise to Seller, a written inspection report by a qualified, professional inspector of the individual on-lot sewage disposal system.
?~O 2. Seller agrees to locate and provide access to the individual on-lot sewage disposal system, and, if required by the inspection company,
z~ empty the septic tank, at Seller's expense. Seller also agrees to restore the Property prior to settlement.
?22 3. If the report reveals defects that do not require expansion or replacement of the existing sewage disposal system, Seller will, within
2>'3 days of receipt of the report, notify Buyer in writing of Seller's choice to: ?23
~:!4 a. Correct the defects before settlement, including retests, at Seller's expense, in which case Buyer accepts the Property and agrees to ~4
;~5 the RELEASE set forth in paragraph 23 of this Agreement.
~2~ b. Not correct the defects, or if Seller fails to respond within the time given, Buyer will, within days, either:
227 1) Accept the Property and the system and, if required by the lender, if any, and/or any governmental authority, correct the ?27
?28 defects before settlement or within the time required by the lender, if any, and/or any governmental authority, at Buyer's sole
22~ expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in para-
Z30 graph 23 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within 5 days of Seller's denial,
;731 terminate this Agreement. If Buyer terminates this Agreement, all deposit monies paid on account of purchase price will be 231
~32 retumed promptly to Buyer and this Agreement of Sale will be VOID, OR . 232
2:~3 2) Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
;)34 promptly to Buyer and this Agreement of Sale will be VOID. 23~
235 4. If the report reveals the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, within days ?35
230 of receipt of the report, submit a corrective proposal to Selling Broker, if any, otherwise to Buyen The corrective proposal will include,
23'1 but not be limited to, the name of the remediation company; provisions for payment, including retests; and completion date for corrective 237
238 measures. Within 5 days of receiving Seller's con'ective proposal, or if no corrective proposal is received within the time given, Buyer 238
239 will: 239
2~0 a. Agree to the terms of the corrective proposal, if any, in writing, in which case Buyer accepts the Property and agrees to the
241 RELEASE set forth in paragraph 23 of this Agreement, OR 241
242 b. Accept the Property and the system and, if required by the lender, if any, and/or any govenunental authority, correct the defects 242
~ ~ before senlement or within the time required by the lender, if any, and/or any govemmental authority, at Buyer's sole expense and
2~4 with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in paragraph 23 of this 2,4?.
245 Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within 5 days of Seller's denial, terminate this
246 Agreement. If Buyer terminates this Agreement, all deposit monies paid on account of purchase price will be retumed promptly to 248
247 Buyer and this Agreement of Sale will be VOID, OR 247
248 c. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
z49 to Buyer and this Agreement of Sale will be VOID.
ZSO 10. ENVIRONMENTAL AUDIT & PROPERTY INSPECTIONS (1-~) 250
25~ (A) Seller represents and warrants that Seller has no knowledge, except as listed bel°w, °f whether:
~52 1. The Property has been contaminated by any substance in any manner which requires remediation; 252
z53 2. The Property contains any wetlands, flood plains, or any other environmentally sensitive areas, development of which is limited or pre- 253
254 eluded by law; 254
255 3. The Property contains any substance, the removal or disposal of which is subject to any law or regulation; 255
~56 4. Any law has been violated in the handling or disposing of any material waste or the discharge of any material into the soil, air, surface 2'56
257
257 water, or ground water; 255
~5~ 5. The Property contains underground fuel or liquid storage tanks.
?59 EXCEPTIONS: N- /'~ ~ ~ 260
260 261
262
264 Buyer Initials
A/S-VL Page 3 of 6 Seller Initials: P ~- /). 264 263
(B) Seller and Buyer acknowledge that Broker: z115
1. Isa licensed mai estate broker; 2116
2. Is not an expert in construction, engineering, or environmental matters; and 267
3. Has not made and will not make any representations or warranties nor conduct investigations of the environmental condition or suita- Z68
bility of the Property, or any adjacent property. 2t~0
ENVIRONMENTAL AUDIT/INSPECTION CONTINGENCY 2'/0
WAIVED. Buyer understands that Buyer has the option to request audits and inspections of the Property. BUYER WAIVES THIS OPTIO.N 2it
and agrees to the RELEASE set forth in paragraph 23 of this Agreement. Buyer reserves the right to make a pre-settlement inspection 6f the 2?2
Property. 2?:3
[] ELECTED. Within __ days of the execution of this Agreement, Buyer has the option, at Buyer's expense, to have the following audits 27,1
or inspections completed by a licensed or otherwise qualified professional: (check the inspections that Buyer will order) 2711
[] Environmental Hazards 2711
[] Underground Storage Tanks 2??
[] Property Boundary/Square Footage Verification/Delineation 2711
[] Flood Plain Verification/Delineation 2?9
[] Wetlands Verification/Delineation a111
[] Specific Property Inspection limited to 281
2t~:3 If Buyer is not satisfied with any condition as stated in any written report Buyer receives pursuant to the audits or inspections obtained under 253
284 this provision, Buyer will, within the time allotted for obtaining such audits or inspections:
285 1. Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 23 of this Agreement, ;7115
296 OR 21111
28t 2. Terminate the Agreement of Sale in writing, in which case ail deposit monies paid on account of pumhase price will be returned promptly 251
281t to Buyer and this Agreement of Sale will be VOID. 2811
280 11. NOTICES & ASSESSMENTS (1-00)
:?~l~ (A) Seller represents as of Seller's execution of this Agreement, that no public improvement and/or homeowner association assessments have been
~ made against the Property which remain unpaid and that no notice by any govemment or public authority has been served upon Seller or any-
~.02 one on Seller's behalf, including notices relating to violations of zoning, housing, building, safety or tim ordinances which remain uncorrected,
;?93 and that Seller knows of no conditioq that would constitute violation of any such ordinances which remain uncorrected, unless otherwise spec-
294 ified hem: ~ 13 q~'-~
' 295
295 (B) Seller knows of no other potential notices (including violations) and assessments except as follows: N O iA, '~, 295
206
201 (C) In the event any notices (including violations) and assessments are received after execution of this Agreement and before settlement, Seller will
2~ notify Buyer in writing within 5 days of receiving the notice or assessment that Seller will: 208
200 1. Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees to the RELEASE set forth 209
300 in paragraph 23 of this Agreement. 300
~01 2. NOT comply with notices and assessments at Seller's expense, in which case Buyer will notify Seller within 5 days in writing that Buyer
302 will: afl2
303 a. Comply with the notices and assessments at Buyer's expense and agree to the RELEASE set forth in paragraph 23 of this Agreement, 303
304 OR 304
305 b. Terminate this Agreement, in which case ail deposit monies paid on account of purchase price will be returned promptly to Buyer
:306 and this Agreement of Sale will be VOID. :31111
89? If Buyer fails to notify Seller within the time given, Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 23 of 301
3o8 this Agreement. 358
300 (D) Buyer is advised that access to a public road may require issuance of a highway occupancy permit from the Pennsylvania Department of 3110
:tlU Transportation or appropriate authority. 310
3~ 12. TITLE, SURVEYS, & COSTS (1-00)
~ (A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing
3~3 deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances, easements of roads, easements visible upon
a I~ the ground, easements of record, privileges or rights of public service companies, if any; otherwise the title to the above described mai estate
31~ will be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates.
3~ (B) In the event Seller is unable to give a good and marketable title and such as will be insured by a reputable Title Company at the regular rates,
~ ? as specified in paragraph 12(A), Buyer will have the option of taking such title as Seller can give without changing the price or of being repaid ~ ?
3 ~* all monies paid by Buyer to Seller on account of the purchase price and Seller will reimburse Buyer for any costs incurred by Buyer for those
5 t~ items specified in paragraph 12(C) and in paragraph 12(D) items (l), (2), (3); and in the latter event them will be no further liability or obli- ,~
:~11 gation on either of the parties hereto and this Agreement will become VOID.
~;?~ (C) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney, for the preparation of an adequate 32t
322 legal description of the Property (or the correction themo0, will be secured and paid for by Seller. However, any survey or surveys desired by 322
323 Buyer or required by lender will be secured and paid for by Buyer. 32:3
324 (D) Buyer will pay for the following: 324
aZ.5 1. The premium for mechanics lien insurance and/or title search, or fee for cancellation of same, if any; 325
~26 2. The premiums for flood insurance and/or tim insurance with extended coverage, insurance binder charges or cancellation fee, if any;
327 3. Appraisal fees and charges paid in advance to lender, if any; 327
328 4. Buyer's customary settlement costs and accruals. 328
320 13. ZONING CLASSIFICATION (1-~8) ~ | / ~29
330 (n) Zoning Classification: ]'~ ~ '.~ ~ ~': L,L /- ~--~ ¥' ~=~ 3311
aal Failure of this Agreement to contain the~iloning classification (except in cases where the property land each parcel thereof, if subdividable } is
332 zoned solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer, and, if voided, any 332
338 deposits tendered by Buyer will be returned to Buyer without any requirement for court action. 333
384 (B) ZONING APPROVAL CONTINGENCY 334
33~5 J~ / NOT APPLICABLE. 385
a:36 ~ WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on receiving municipal approval for the 3311
337 ' ~ intended use of the Property. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement. 3:37
338 [] ELECTED. aaa
aa0 1. This sale is contingent on Buyer receiving zoning approval, or variance, or special exception from
~4~ (municipality) to use the Property as a (proposed use).
341 2: Application for the approval (or variance/special exception) will be made within days of the execution of this Agreement of Sale. 341
2~) Buyer will pay for applications, legal representation, and any other costs associated with obtaining approval. 341'
34:3 3. If the municipality requires the application to be signed by the current owner, Seller agrees to do so. 343
M4 4. If final, unappealable approval is not obtained by , this Agreement of Sale will be 344
345 VOID, in which case all deposit monies paid on account of purchase price will be retumed promptly to Buyer.
346 14. LAND,~SE RESTRICTIONS OTHER THAN ZONING (1-98)
:t47 (A)~ None Known 'aa?
3~8 (B)' [] ' The Property, or a portion of it, is pmferentiaily assessed for tax purposes under the Following Acts (See Land Use Restrictions Notices):
340 [] Farmland and Forest Land Assessment Act (Clean and Green Program) 349
350 [] Open Space Act (an Act enabling certain counties of the Commonwealth to covenant with land owners for preservation of land in 350
351 farm, forest, water supply, or open space uses)
3sz [] Other 352
35:3 [] Buyer and Seller have determined the consequences that may result from the sale or a change in the use of the Property, or any portion 353
3§4 of it. 354
aSS (C) [] Seller has no knowledge of any covenants, subdivision restrictions or other restrictions affecting the Property unless otherwise stated here: 3,55
(D) [] Seller has no knowledge of any rights to timber, crops or minerals, except coal, that do not transfer with the Property unless otherwise 35 ?
stated here: 35~
357
358
3~9 (E) [] Buyer acknowledges that any land use restrictions associated with the Property's enrollment in the Clean and Green Program or under the
~;; Open Space Act or any other program identified in this paragraph 14, are encumbrances upon the Property. Buyer agrees that delivery of
~ title s~c~o~e encumbrances will not violate Seller's duty under paragraph 12(A) of this Agreement. /-~ /)
3~8 Buyer lnitials.~ A/S-VL Page 4 of 6 Seller Initials: f' .
364
3~.4 15. ~CO~k.L NOTICE
365 ~ NOT APPLICABLE 365
366 [2]' APPLICABLE 366
361 THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHTS OF SUPPORT UNDERNEATH THE SURFACE LAND 3~
3fi8 DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL SUCH COAL AND 3611
369 IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH L,~d~rD, (This 369
370 notice is set forth in the manner provided in Section 1 of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges that he may not be obtaining the 3 l0
371 right of protection against subsidence resulting from coal mining operations, and that the property described herein may be protected from damfige 371
372 due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgment is made for the purpose 372
3/3 of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27, 1966." Buyer agrees 3?3
3'/4
3/4 to sign the deed from Seller which deed will contain the aforesaid provision. 315
37§ 16. POSSESSION (1-98)
316 (A) Possession is to be delivered by deed, keys (if any) and:
317 1. Physical possession to a vacant building (if any) broom-clean, free of debris at day and time of settlement, AND/OR :t7'1
370 2. Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is tenam-occupied at
3;~ the execution of this Agreement or unless otherwise specified herein. Buyer will acknowledge existing lease(s) by initialing said lease(s)
380 at time of signing of this Agreement of Sale, if Property is tenant-occupied. 380
38~ (B) Seller will not enter into any new leases, written extension of existing leases, if any, or additional leases for the Property without expressed 3 ~
3~2 written consent of Buyer.
9~,3 17. RECORDING {3-B~) This Agreement will not be recorded in the Office for the Recording of Deeds or in any other office or place of public
~ record, and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement.
~ 18. ASSIGNMENT {~.85) This Agreement shall be binding upon the parties, their respective heirs, personal representatives, guardians and succes- '~5
a~ sots, and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer will not transfer or assign
3~? this Agreement without the written consent of Seller.
9~a 19. DEPOSIT & RECOVERY FUND
:~; (A) Deposits paid by Buyer within 30 days of settlement will be by cash, cashier's or certified check. Deposits, regardless of the form of payment
3~}~ and the person designated as payee, will be paid to Broker or party identified in paragraph 3(F), who will retain them in an escrow account
~ until consummation or termination of this Agreement in conformity with all applicable laws and regulations. Any uncashed check tendered as 9~
:~2 deposit may be held pending the acceptance of this offer.
~3 (B) In the event of a dispute over entitlement to deposit monies, a broker holding the deposit is required by the Rules and Regulations of the State
3~,1 Real Estate Commission (49 Pa. Code §35.327) to retain the monies in escrow until the dispute is resolved. In the event of litigation for the 391
:~95 return of deposit monies, a broker will distribute the monies as directed by a final order of court or the written Agreement of the parties. Buyer t
3% and Seller agree that, in the event any broker or affiliated licensee is joined in litigation for the retum of deposit monies, the attorneys' fees and 39n
~,~: costs of the broker(s) and licensee(s) will be paid by the party joining them.
a~.~a (C) A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate :~
aaa licensee owing to fraud, misrepresentation, or deceit in a real estate transactaon and who have been unable to collect the judgment after exhaust
400 ing all legal and equitable remedies. For complete details about the Fund, call (717) 783-3658, or 1-800-822-2113 (within Pennsylvania) and
4~1 (717) 7834854 (outside Pennsylvania). ONLY (1-00)
4~2 20, ~PL~NNED COMMUNITY (HOMEOWNER ASSOCIATION) NOTICE FOR PURPOSES OF RESALE
~,'~3 .~ NOT APPLICABLE
404 '- []' APPLICABLE
~0,5 (A) Buyer acknowledges that the Property is part of a planned community as defined by the Uniform Planned Community Act. (See Definition of
,:t}~. Planned Community Notice for the definition contained in the Act.)
att ~ (B) §5407(a) of the Act requires Seller to furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws, the roles and reg-
~0~ ulations of the association, and a Certificate containing the provisions set forth in §5407(a) of the Act.
~ (C) Within days of the execution of this Agreement, Seller will submit a request to the association for a Certificate and the documents
~ i o necessary to enable Seller to comply with the Act. The Act provides that the association is required to provide these documents within 10 days 41
~11 of Seller's request. ~;
~ ~ ~ (D) Under the Act, Seller is not liable to Buyer for the failure or delay of the association to provide the Certificate in a timely manner, nor is Seller 1
9~3 liable to Buyer for any erroneous information provided by the Association and included in the Certificate. ~ 3
4I ~ (E) Buyer may declare the Agreement of Sale VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR 4~ 4
415 until settlement, whichever occurs first. Buyer's notice declaring the Agreement void must be in writing; thereafter all deposit monies will be 41
t~( retumed to Buyer. ~
417 (F) In the event the association has the right to buy the Property (right of first refusal), and the association exercises that right, Seller will reim- 4t7
~i~; burse Buyer for all monies paid by Buyer on account of purchase price and for any costs incurred by Buyer for: (1) The premium for mechan- 4
4t9 its lien insurance and/or title search, or fee for cancellation of same, if any; (2) The premium for flood insurance and/or fire insurance with
420 extended coverage, insurance binder charges or cancellation fee, if any; (3) Appraisal fees and charges paid in advance to mortgage lender, if
,t~ any; (4) Buyer's customary settlement costs and accruals. 422
,~:,2 21. MAINTENANCE & RISK OF LOSS {1
~20 (A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically scheduled herein in its present condition, normal
4~,1 wear and tear excepted.
026 (B) In the event any system or appliance included in the sale of the Property fails and Seller does not repair or replace the item, Seller will promptly
4.Z~ notify Buyer in writing of Seller's choice to:
~1;:1 1. Repair or replace the failed system or appliance before settlement, or credit Buyer at settlement for the fair market value of the failed
42~ system or appliance (this option must be acceptable to the lender, if any). In each case, Buyer accepts the Property and agrees to the
429 RELEASE set forth in paragraph 23 of this Agreement, OR
430 2. Make no repairs or replacements and not credit the Buyer at settlement for the fair market value of the failed system or appliance, in which
431 case Buyer will notify Seller in writing within 5 days or before settlement, whichever is sooner, that Buyer will:
432 a. Accept the Property and agree to the RELEASE set forth in paragraph 23 of this Agreement, OR 432
133 b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be retumed promptly to Buyer
~!34 and this Agreement of Sale will be VOID. 4.14
43s (C) Seller will bear risk of loss from fire or other casualties until time of settlement. In the event of damage by fire or other casualties to any prop-
~3~ erty included in this sale that is not repaired or replaced prior to settlement, Buyer will have the option of rescinding this Agreemeut and 436
432 promptly receiving all monies paid on account of purchase price or of accepting the Property in its then condition together with the proceeds
,138 of any insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyer's equitable interest in this Property as of
43~ the time of execution of this Agreement.
446 22. WAIVER OF CONTINGENCIES (1-00)
~ ~ In the event this Agreement is contingent on Buyer's right to inspect and/or repair the Property, Buyer's failure to exerdse any of Buyer's options
,;i· within the time limits specified in the contingency provision(s) will constitute a WAIVER of that contingency and Buyer accepts the Property
aa~ and agrees to the RELEASE set forth in paragraph 23 of this Agreement.
~: 23. RELEASE (~-00) - Buyer hereby releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOY-
~,~ EES, and any OFFICER or PARTNER of any one of them and any other PERSON, FIRM, or CORPORATION who may be liable by or
~,l~i through them, from any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of
447 the consequences thereof, whether now known or not, which may arise from the presence of environmental hazards, any deficiencies in the
440 on-site water service system, or any defects or conditions on the Property. This release will survive settlement.
449 24. REPRESENTATIONS 04)0)
45o (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers,
their licensees, employees, officers, or partners are not a part of this Agreement, unless expressly incorporated or stated in this Agreement.
(B) It is understood that Buyer has inspected the Property before signing this Agreement of Sale (including fixtures and any personal prop-
erty specifically scheduled herein), or has waived the right to do so, and has agreed to purchase it in its present condition unless other-
wise stated in this Agreement. Buyer acknowledges that Brokers, their licensees, employees, officers, or partners have not made an
independent examination or determination of the structural soundness of the Property, the age or condition of the components, envi-
ronmcotai conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor have they made a
mechanical inspection of any of the systems contained therein.
4§2
Buyer Initials.'~
A/S-VL Page 5 of 6
Seller InitiaiJ~'~d' ~-')
4§a (C) It is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other terms, obligations,
4~ covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agree- 46,4
013~ ment will not be altered, amended, changed, or modified except in writing executed by the parties. 41313
413§ (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraphs.
~13'/ 25. TIME OF THE ESSENCE-DEFAULT {1-00)
4§5 The said time for settlement and all other times referred to for the performance of any of the obligations of this Agreement are hereby agreed to be 466
469 of the essence of this Agreement. For the purposes of this Agreement, number of days will be counted from the date of execution, by excludi.ng the 4139
470 day this Agreement was executed and including the last day of the time period. Should Buyer: 470
a~1 (A) Fail to make any additional payments as specified in paragraph 3; OR 471
,:75 (B) Furnish false or incomplete information to Seller, Listing Broker, Selling Broker, or the lender, if any, conceming Buyer's legal or financial 4?2
~13 status, or fail to cooperate in the processing of the financing application, which acts would result in the failure to obtain the approval of a financ-
414 ing commitment; OR 474
47~ (C) Violate or fail to fulfill and perform any other terms or conditions of this Agreement;
4t13 then in such case, Seller has the option of retaining ail sums paid by Buyer, including the deposit monies, 1) on account of purchase
41~ price, or 2) as monies to be applied to Seller's damages, or 3) as liquidated damages for such breach, as Seller may elect, unless 4??
47~ ot, o~erwise checked below.
4 ~ ,~% Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages.
450 If Seller elects to retain all sums paid by Buyer, including deposit monies, as liquida~d damages, Buyer and Seller will be released from 4130
48~ further liability or obligation and this Agreement will be VOID. 481
08~ 26. BROKERS CI-00} The Business Relationships between the Broker(s) and Seller and Buyer are as follows, UNLESS a different relationship is
483 checked below. 483
484 (A) The Listing Broker is Agent for Seller. 4§4
41~13 (B) The Selling Broker is Agent for Buyer. 4~5
4~t~ (C) When the Listing Broker and Selling Broker are the same, the Broker is a Dual Agent. Dual Agency applies to all licensees, UNLESS there is 455
a~! a Designated Agent for Seller and a Designated Agent for Buyer. If the same Licensee is designated for Seller and Buyer, the Licensee is a
aaa Dual Agent. 4813
46~ A Business Relationship exists that is different from above, as follows:
~5 [] The Selling Broker is the AgenqSubagent for Seller.
491 [] The Selling Broker is a Transaction Licensee.
492 [] The Listing Broker is a Transaction Licensee.
493 (D) Broker(s) may perform services to assist unrepresented parties in complying with the terms of this Agreement. 493
494 27. MEDIATION (7-9fl)
495 [] NOT AVAILABLE
4~13 [] WAIVED. Buyer and Seller understand that they may choose to mediate at a later date, should a dispute arise, but that there will be no ob- 496
~§? ~_/ligafion on the part of any party to do so.
4~ ~[~ ELECTED
49.q - (A)" Buyer and Seller will try to resolve any dispute or claim that may arise from this Agreement of Sale through mediation, in accordance with the
§90 Rules and Procedures of the Home Sellers/Home Buyers Dispute Resolution System. Any agreement reached through a mediation conference
sO1 and signed by the parties will be binding.
50~ (B) Buyer and Seller acknowledge that they have received, read, and understand the Rules and Procedures of the Home Sellers/Home Buyers
503 Dispute Resolution System. (See Mediation Notice.) 503
so4 (C) This agreement to mediate disputes arising from this Agreement will survive settlement.
50S
506 Buyer and Seller acknowledge that they have read and understand the notices and explanatory information set forth in this Agreement.
50l
50~ Buyer acknowledges receiving a copy of this Agreement at the time of signing.
509 559
5~0
512
5t4
545
519 BUYER DATE
5~6 SS #
NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return by facsimile transmission (FAX) of this 51
Agreement of Sale, and all addenda, bearing the signatures of all parties, constitutes acceptance of this Agreement. Parties to this transaction
are advised to consult an attorney before signing if they desire legal advice.
WITNESS '~e~~ )rff, ~UYER ~ DATE
Buyer Name (print) C-s.' t ~ ~ ~,,x J'~ ~. ~,.~ t,,'~ ,eL ~,'I ~ / SS# t.~2_'-IO IlS'Y''~
MallingAddress ~.;Z- H~_~'t~ ~.~ U'~ I'~,~.-t~u~-ln ~,~ff~r-ei /~ ~- ~ ~Y~f~'~ '
Phone #s ~r0 ~' ~., { _'~ t ~ {D ~ ~ FAX # - -- '4 E-Mail
WITNESS
Buyer Name (print)
Mailing Address
5i2
514
515
516
517
518
1319
520
521
Phone #s FAX # E-Mail 622
WITNESS BUYER DATE 524
Buyer Name (prin0 SS # 525
Mailing Address
Phone #s FAX # E-Mail 5z7
520
Seller hereby approves the above contract this (date) 529
and in consideration of the services rendered in procuring the Buyer, Seller agrees to pay the named Listing Broker a fee of ~ 530
of/from the,.,he,~rein specified sale p.~c.e.~n_~.e even~ Buy.~lef..~uflts hereunder, any monies paid on account will be divided -~ ~'.~t~ _
Seller. '~-~ -~..o Llsfi)a~)}~oker~,t~6~.,b~ml~ will the sum p~d ~o)the List~g Broker .be in'exeess of the above specified Br~er's f~..
s t'
· ~.~. /'E Z ' DATE
Seller Name (print) .~:~/¥'~Z~. ~-: p('¢~.. .... ' S~#I qL~ /.z~ i ~-A / -/ - 535
Phone #s '2 12/ ~ /_ g./'7 ~-"' FAX # - ' E-Mail 531
WITNESS SELLER DATE
Seller Name (print) SS # 1340
Mailing Address
Phone #s FAX # E-Mail. 54~
543
WITNESS SELLER DATE 544
Seller Name (print) SS # 545
Mailing Address 546
Phone gs FAX # E-Mall
The undersigned' [] Listing Broker [] Selling Broker agree.to submit to mediation__ in accordance with paragraph 27 of this Agw~ement.
ACCEPTEDBY ~x "~ff /..,./~ /~"~a , , DATE
SELLING BRO~R (C.~y ia~~~ ~~ ~
MS-VL P~e 6 of 6
547
540
549
555
551
552
553
,554
555
556
557
558
559
560
SELLER'S COPY
EXHIBIT B
STATEMENT OF ESTIMATED SELLER'S COSTS
Date Prepared: ~'~--~,/~ ~)~/ Seller: ~.~_/ ~-i~)/(~'
Type Loan: Property:
Sale Price: /~, Z~ 0 lO Mortgage Amount:
The following ESTIMATE is given so that the Sellers will understand approximately what costs will be deducted from the Gross Sale
Price at the time of settlement:
%T erT x ........................................................................
2.
3. Notary Fees .............................................................................. $
4. Deed Preparation ....................................................................... $ ,/0 O
5. Radon Certification ..................................................................... $
6. Wood Infestation Inspection ......................................................... $
7. Private On-Lot Sewage System Inspection .....................................$
8. Water Analysis Report ................................................................ $
9. Roof Certification ....................................................................... $
10. Home Warranty Program ............................................................ $
11. Home Inspection Fee ................................................................. $
12. Buyers Closing Costs ................................................................. $
13. Mortgage Discount of Plaeemcnt Fee
( % of mortgage amoun0 ........................................... $
14. Settlement or Disbursement Fee ................................................... $
15. FHA/VA Fees ($400 average - Fees va~ according to lender*) ............ $
16. Transaction?ee ............................................... ~ ....... ..Z ............ t I~ 100.00
TOTAL ESTI]VlATED SELL~G EXPENSES ............................................. $
*Above estimate includes a total of average fees for one FHA/VA lmpeetion, Flood Cerlification, Tax Service Fee, Notm'y and Miscellaneous fee,.
Total deductions at ,s~[~ont are estimated as follows:
$ ~'~_ ~ Estimated Selling Expenses
$ tga~_.) e~O Estimate Payoff First Mortgage
$ ~ .~ _, Estimate PayoffAdditiona! Mortgage/Liens
$ J('.~ .Cq't~' ~pTOTAL ESTIMATED DEDUCTIONS
$ //I ~ , ~ 0 0,, Gross Sale Priee
$ ' o~'"~r ~ ~, Less Total Estimated Dedu~ions
$ ~?/~, ,/.¥ff EstimatedProeeedsatSettiement
The above figures include payoff information provided by Sellers, and may not include payoff of all liens, encumbrances, property
taxes or special assessments. All payoffs aod/or release of existing mortgages and lieas will bo deducted from your proeeeds at
serdement.
l/We acknowledge receipt of a copy of this Statement of Estimated Seller's Costs, and undemland and agree to the above estimated
charges/ /~ /?
Rev. 11/00
(Seller)
.(Seller)
(Sener)
EXHIBIT C
3Ol
mlO2L202L~,2m: hS:~'"L65hh 011' 2257 /
~: ~O 2 ~OONOO~:
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. ~4904 relating to unsworn falsification to authorities.
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-01221 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HERMAN GLENN
VS
DICK PAUL E
BRIAN BARRICK , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
DICK PAUL E the
DEFENDANT , at 1053:00 HOURS, on the 14th day of March , 2002
at 1100 ENOLA ROAD
CARLISLE, PA 17013
by handing to
PAUL E DICK
a true and attested copy of COMPLAINT - EQUITY
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 3.45
Affidavit .00
Surcharge 10.00
.00
31.45
Sworn and Subscribed to before
me this ~ ~ day of
~r6thonotary ,
So Answers:
R. Thomas Kline
03/15/2002// ~ /~
JAMES M ROBINSONA
GLENN HERMAN,
PAUL E. DICK,
Plaintiff,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
..
NO. 02 - 1221 CIVIL TERM
._
CIVIL ACTION - EQUITY
:
JURY TRIAL DEMANDED
pRELIMINARY OBJECTIONS OF DEFENDANT
TO PLAINTIFF'S COMPLAINT
AND NOW this 19th day of April, 2001, comes the Defendant, PAUL E. DICK, by and
through his attorneys, Irwin, McKnight & Hughes, and makes the following Preliminary
Objections to Plaintiff's Complaint, and in support thereof avers the following:
I. Preliminary Objection for Failure of a Pleading to Conform to Law or Rule of
Court Pursuant to Pa. R.Civ. P. 1028(a)(2)
1. Plaintiff, Glenn Herman, filed a civil complaint on or about March 12, 2002
against Defendant Paul E. Dick in the Court of Common Pleas of Cumberland County,
Pennsylvania at Docket No. 2002 - 1221, alleging causes of action for specific performance and
breach of contract.
2. The dispute involves a purported Agreement of Sale for the purchase of property
owned by Defendant.
3. Pa.R.Civ.P. No. 1508 states that a Plaintiff "may state in kis complaint two or
more causes of action cognizable in equity."
4. Generally no authority is conferred to join a legal cause of action with an
equitable cause of action in the same complaint. 14 Standard Pennsylvania Practice, 2d§ 80:10.
5. Plaintiff's Complaint pleads concurrently both a cause of action in equity, specific
performance, with a cause of action at law, breach of contract.
6. Plaintiff's pleading fails to conform to the above cited Rules of Court.
WHEREFORE, Defendant Paul E. Dick respectfully requests this Honorable Court to
dismiss Plaintiff's cause of action for breach of contract.
II. Preliminary Objection in the Nature of a Demurrer Pursuant to Pa. R.Civ. P.
1028(a)(4).
7. In Paragraph 23 of Plaintiff's Complaint, he states that he intended to subdivide
the subject property following purchase and that he stands to lose any profit on the sale of the
subdivided lots "which profit he estimates to be $100,000."
8. The purported Agreement of Sale does not make any reference to Plaintiff's stated
intention to further subdivide the property upon purchase, nor does Plaintiff allege that he ever
conveyed said intention to Defendant.
9. Plaintiff's Complaint fails to state any cause of action against Defendant upon
which relief may be granted for recovery of purported lost profits, because Plaintiff does not
allege that subsequent subdivision was within the contemplation of the parties and such damages
are not the type of injuries which are typically recoverable as a matter of law in a breach of
contract action.
2
WHEREFORE, Defendant Paul E. Dick respectfully requests this Honorable Court to
dismiss Plaintiff's Complaint with regard to recovery of alleged lost profits by Plaintiff.
III.
Preliminary Objection Raising Insufficient Specificity of Plaintiff's Complaint
Pursuant to Pa. R. Civ. P. 1028(a)(3).
10. Plaintiff's Complaint fails to allege with sufficient particularity that the purported
Agreement of Sale makes any reference to Plaintiff's stated intention to further subdivide the
property upon purchase.
11. Plaintiff's Complaint fails to allege with sufficient particularity that Plaintiff ever
conveyed an intention to Defendant to further subdivide the property upon purchase.
12. Plaintiff's Complaint fails to allege with sufficient particularity any support for
the estimated amount of lost profits from further subdivision.
WHEREFORE, Defendant Paul E. Dick respectfully requests this Honorable Court to
dismiss Plaintiff's Complaint with regard to recovery of alleged lost profits by Plaintiff.
Dated: April 19, 2002
By:
Respectfully Submitted,
IRWIN, McKNIGHT & HUGHES
Douglas t~lV~iller, Esquire - --
Supreme C~urt ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendant,
Paul E. Dick
GLENN HERMAN,
PAUL E. DICK,
Plaintiff,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 02 - 1221 CIVIL TERM
:
CIVIL ACTION - EQUITY
:
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by fLrst class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
James M. Robinson, Esquire
28 South Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
Date: April 19, 2002
IRWIN, McKNIGHT & HUGHES
Douglas (~Miller~ lgsqulre -
Supreme C~urt I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendant,
Paul E. Dick
GLENN HERMAN,
PAUL E. DICK,
Plaintiff
V,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 02-1221 CIVIL TERM
: ClIVIL ACTION - EQUITY
ANSWER TO PRELIMINARY OBJECTIONS
Plaintiff, Glenn Herman, by and through his attorneys, Turo Law Offices,
respectfully submits the following answer to the preliminary objections to his complaint
filed by the Defendant, Paul E. Dick.
1. Admitted.
2. Admitted.
3. Admitted. By way of further answer, although Plaintiff admits that the text
of the rule is properly quoted, it should be noted that the rule does not expressly prohibit
joining a legal cause of action with a cause of action in equity.
4. Denied. By way of further answer, the source quoted by Defendant in this
averment specifically states, "where the plaintiffs specify that the primary relief which
they seek is equitable, even though they seek damages in the alternative, an objection
based on misjoinder of causes of action will be dismissed by the court." 14 Standard
Pennsylvania Practice, 2d § 80:10.
5. Admitted.
6. The averments contained in paragraph 6 state a legal conclusion to which
no responsive pleading is required. To the extent that a response is required, such
averments are denied.
WHEREFORE, for all the reasons set forth above, the Plaintiff, Glenn Herman, requests
judgment in his favor and respectfully requests this Honorable Court to deny the
Defendant's Preliminary Objection.
7. Admitted
8. Admitted. By way of further answer, the matter of subdividing the properbj
was discussed in the presence of the Defendant. The discussion was initiated with
Larry Neidlinger as a result of Defendant's discussions about subdividing the portion of
the property on which his house and barn were located (as handwritten on the
Agreement of Sale). The further subdivision of the property by the Plaintiff was made
necessary by Defendant's insistence that Plaintiff agree to allow an existing mobile
home to remain on the property. See Exhibit A to Complaint, page 1.
9. The averments contained in paragraph 9 state a legal conclusion to which
no responsive pleading is required. To the extent that a response is required, such
averments are denied.
WHEREFORE, for all the reasons set forth above, the Plaintiff, Glenn Herman, requests
judgment in his favor and respectfully requests this Honorable Court to deny the
Defendant's Preliminary Objection.
10. The averments contained in paragraph10 state a legal conclusion to which
no responsive pleading is required. To the extent that a response is required, such
averments are denied.
11. The averments contained in paragraph 11 state a legal conclusion to
which no responsive pleading is required. To the extent that a response is required,
such averments are denied.
12. The averments contained in paragraph 12 state a legal conclusion to
which no responsive pleading is required. To the extent that a response is required,
such averments are denied.
WHEREFORE, for all the reasons set forth above, the Plaintiff, Glenn Herman, requests
judgment in his favor and respectfully requests this Honorable Court to deny the
Defendant's Preliminary Objection.
Respectfully Submitted
TURO LAW OFFICES
Ja~s M. Robeson, Esquire
28~South Pitt~Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Plaintiff's Answer to
Preliminary Objections upon Douglas D. Miller, Esquire, by depositing same in the
United States Mail, first class, postage pre-paid on the 6th day of May, 2002, from
Carlisle, Pennsylvania, addressed as follows:
Douglas D. Miller, Esquire
Irwin, McKnight & Hughes
West Por~fret Professional Building
60 West Pomfret Street
Carlisle, PA 17013
TURO LAW OFFICES
J~l~s M. Robinson, Esquire
28~South Pitt treet
Carlisle, PA ~'r~{13
(717) 245-9688
Attorney for Plaintiff
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
Glenn Herman
vs.
(Plaintiff)
Paul E. Dick
(Defendant)
No. 02-1221 Civil Term 2002
Dated:
State matter to be argued
defendant's demurrer to complaint, etc.):
Defendant's Preliminary Objections
Identify counsel who will argue case:
(a) for plaintiff:
Address:
(b) for defendant:
Address:
(i.e., plaintiff's motion for new trial,
James M. Robinson, Esquire
28 South Pitt St.
Carlisle, PA 17013
Douglas G. Miller, Esquire
60 West Pomfret St.
Carlisle, PA 17013
I will notify all parties in writing within two days that this case
has been listed for argument.
Argument Court Date: July 24, 2002
May 7, 2002
ttorne/f0r Plaintiff
GLENN HERMAN,
PLAINTIFF
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT 02-1221 EQUITY TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
AND NOW, this
defendant to plaintiff's complaint, ARE DISMISSED.
TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J. AND GUIDO, J.
ORDER OF COURT
~/'7. day of August, 2002, the preliminary objections of
f James M. Robinson, Esquire
For Plaintiff
~FoOUglas G. Miller, Esquire
r Defendant
Edgar B. 15'ay~y,.J
:saa
GLENN HERMAN,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT
IN RE:
: 02-1221 EQUITY TERM
PRELIMINARY OBJECTIONS OF DEFENDANT
TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J. AND GUIDO, J.
OPINION AND ORDER OF COURT
Bayley, J., August 12, 2002:--
On March 12, 2002, plaintiff, Glenn Herman, instituted this complaint in equity
against defendant, Paul E. Dick. Plaintiff avers that he entered into a written agreement
dated June 5, 2001, to purchase real estate from defendant, and that defendant has
refused to transfer the real estate to him under the terms and conditions of their
contract which is attached as an Exhibit to the complaint. Count 1 seeks specific
performance of the agreement to sell the real estate. Count 2, titled "Breach of
Contract," avers:
23. Plaintiff intended to further subdivide and develop this property
upon completion of its purchase. Defendant's action has caused Plaintiff
to lose any profit he may have earned in the sale of the subdivided lots,
which profit he estimates to be $100,000.
24. As a result of Defendant's refusal to perform according to the
Agreement, Plaintiff has suffered the loss of out-of pocket [sic] expenses
which he incurred in reliance upon the Agreement. These expenses
include the $2,500 down payment, $3,200 owed to Mr. Neidlinger,
02-1221 EQUITY TERM
attorneys' fees of $1,267.50, and costs of suit.
WHEREFORE, for all the above reasons, the Plaintiff, Glenn
Herman, respectfully requests that this Court grant to him and against
Defendant a judgment in the amount of $106,967.50 plus costs of suit,
which amount represents all expenses incurred by Plaintiff in reliance
upon the Agreement.
Defendant has filed a preliminary objection alleging the misjoinder of a cause of
action at law with a cause of action in equity. Pa. Rule of Civil Procedure 1509(c)
provides:
The objection of the existence of a full, complete and adequate
non-statutory remedy at law shall be raised by preliminary objection. If
the objection is sustained, the court shall certify the action to the law side
of the court.
In Lustig v. Lusfig, 438 Pa. Super. 320 (1995), the Superior Court of
Pennsylvania stated:
There is no authority in the Rules of Civil Procedure permitting the joinder
of an action at law with an action in equityJ
In Adams v. Ramsey, 49 Cumberland L.J. 269 (2000), there was a preliminary
objection to causes of action in a complaint in equity for specific performance of real
estate, and damages for breach of a separate agreement to settle the dispute. Noting
that this was not a situation where the plaintiff sought damages collateral to specific
performance, the preliminary objection was sustained and the cause of action for
breach of the separate settlement agreement was transferred to the law side of the
~ The Supreme Court of Pennsylvania has recently published Proposed
Recommendation No. 180, which is a Proposed Consolidation of the Action in Equity
with the Civil Action.
-2-
02-1221 EQUITY TERM
court.
In Rusiski v. Pribonic, 511 Pa. 383 (1986), a chancellor in equity granted
specific performance of an agreement to sell real estate and awarded collateral
damages to the plaintiff. The Supreme Court of Pennsylvania stated that:
consequential damages may be awarded as collateral relief to a decree of
specific performance, since the power of a chancellor extends to shaping
and rendering a decree which accords with the equities in the case. Sigal
v. Manufacturer's Light & Heat Co., 450 Pa. 228, 299 A.2d 646 (1973);
Township of Salisbury v. Vito, 446 Pa. 200, 285 A.2d 529 (1971);
Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968).
However, these damages must be such as would naturally and
ordinarily follow from the breach, must have been reasonably foreseeable
and within the contemplation of the parties at the time they made the
contract and must be capable of being proved with reasonable certainty.
Keystone Diesel Engine Company v. In/in, 411 Pa. 222, 191 A.2d 376
(1963); Adams v. Speckman, 385 Pa. 308, 122 A.2d 685 (1956); Taylor V.
Kaufhold, 368 Pa. 538, 84 A.2d 347 (1951).
In the case sub judice, for plaintiff to be entitled to specific performance in
equity, defendant must have breached the contract of sale for real estate dated June 5,
2001. Plaintiff also seeks money damages for the alleged breach. Those damages are
collateral to the count of specific performance; i.e., damages arising from the failure of
plaintiff to transfer the real estate to him as required by the contract of June 5, 2001.
Therefore, the preliminary objection as to joinder will be dismissed.
Defendant objects to the claim of plaintiff for lost profits. In Rusiski v. Pribonic,
supra, the chancellor awarded specific performance of a 1979 contract to sell real
estate. On the original closing date, the buyer had secured a twenty year mortgage at
10.25 percent interest. In 1982, following the decree of specific performance, the
-3-
02-1221 EQUITY TERM
buyers were only able to secure a mortgage at a rate of 15.25 percent. The chancellor
awarded collateral damages by calculating the five percent increase in the mortgage
rate over the term of the mortgage, reduced to net worth. By the time the Supreme
Court heard the case, interest rates were 10.50 percent, and the average life of a
residential mortgage was 11.79 years. While the Court concluded that the claim for
damages was collateral to the decree in specific performance it reversed the award
concluding, that because interest rates over the life of the mortgage could be expected
to fluctuate dramatically, the actual damages to the buyers were not capable of being
proven with reasonable certainty. In the words of the Court, "We would look a little silly
today if the Chancellor's Decree had been fulfilled and Appellees today would be
refinancing the debt at today's rate of interest of ten to eleven per cent [sic]. What a
windfall equity would have bestowed upon them." The Court held that the only
collateral damages suffered by the buyers for the breach which could be ascertained
with reasonable certainty were the increases in closing costs occasioned by the
passage of time.
In the case sub judice, plaintiff has pleaded a claim for lost profits arising out of
defendant's alleged breach of the June 5, 2001 contract to sell real estate for which
specific performance is sought. Such damages are liquidated, not unliquidated, as
suggested by defendant. Whether the damages sought ara reasonably foreseeable
and within the contemplation of the parties' contract on June 5, 2001, and if so, whether
they can be proven with reasonable certainty, is a matter of evidence, not pleading.
-4-
02-1221 EQUITY TERM
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this J ~ day of August, 2002, the preliminary objections of
defendant to plaintiffs complaint, ARE DISMISSED.
By th,
James M. Robinson, Esquire
For Plaintiff
Edgar B. Bayley, J.
Douglas G. Miller, Esquire
For Defendant
:saa
-5-
GLENN HERMAN,
PAUL E. DICK,
Plaintiff,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 02 - 1221 CIVIL TERM
:
: CIVIL ACTION - EQUITY
:
: JURY TRIAL DEMANDED
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed Answer with New
Matter within twenty (20) days from service hereof or a judgment may be entered against you.
Date: October 1, 2002
IRWIN, McKNIGHT & HUGHES
Do~glas~. M~lle~', Es~quire
Supreme Court I.D. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendant,
Paul E. Dick
GLENN HERMAN,
PAUL E. DICK,
Plaintiff,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02 - 1221 CIVIL TERM
:
CIVIL ACTION - EQUITY
:
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER
TO PLAINTIFF'S AMENDED COMPLAINT
AND NOW this 1st day of October, 2002, comes the Defendant, Paul E. Dick, by and
through his attorneys, Irwin, McKnight & Hughes, and respectfully file this Answer with New
Matter to the Plaintiff's Complaint, and in support thereof aver as follows:
1. The averments of fact contained in paragraph one (1) of the Plaintiff's Complaint
are admitted.
2. The averments of fact contained in paragraph two (2) are admitted.
3. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the troth of the averments contained in paragraph three (3) so
they are therefore specifically denied and strict proof thereof is demanded at trial.
4. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph four (4) so they
are therefore specifically denied and strict proof thereof is demanded at trial.
5. The averments of fact contained in paragraph five (5) are specifically denied and
strict proof thereof is demanded at trial. By way of further answer, Defendant does not recall
initialing and signing the alleged Agreement and the initials appear to be different throughout the
document.
6. The averments of fact contained in paragraph six (6) are specifically denied and
strict proof thereof is demanded at trial. By way of further answer, Defendant does not recall
signing the second completed Statement of Estimated Seller's Costs.
7. The averments of fact contained in paragraph seven (7) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
8. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the aveJments contained in paragraph eight (8) so
they are therefore specifically denied and strict proof thereof is demanded at trial.
9. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph nine (9) so they
are therefore specifically denied and strict proof thereof is demanded at trial.
10. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the troth of the averments contained in paragraph ten (10) so they
are therefore specifically denied and strict proof thereof is demanded at trial.
11. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the troth of the averments contained in paragraph eleven (11) so
they are therefore specifically denied and strict proof thereof is demanded at trial.
12. The averments of fact contained in paragraph twelve (12) are specifically denied
and strict proof thereof is demanded at trial. By way of further answer, the Defendant's
attorneys did not ask Mr. Neidlinger to start the process of subdivision.
13. The averments of fact contained in paragraph thirteen (13) are specifically denied
and strict proof thereof is demanded at trial. By way of further answer, Mr. Neidlinger did
prepare a "sketch plan" that was shown to Defendant's attomeys, which plan raised more
questions than it answered with regard to the property and the alleged Agreement of Sale.
14. The averments of fact contained in paragraph fourteen (14) are specifically denied
and strict proof thereof is demanded at trial. By way of further answer, the "sketch plan" had
several errors, did not adequately identify the acreage of the property, did not contain satisfactory
lot lines, and did not otherwise correspond with the alleged Agreement of Sale.
15. The averments contained in paragraph fifteen (15) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
16. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph sixteen (16) so
they are therefore specifically denied and strict proof thereof is demanded at trial.
COUNT I - SPECIFIC PERFORMANCE
17. The answers contained in paragraphs one (1) through sixteen (16) to the
Plaintiff's Complaint are hereby incorporated by reference as if fully set forth herein.
18. The averments contained in paragraph eighteen (18) are conclusions of law to
which no response is required. To the extent that a response is required, the avem~ents are
specifically denied and strict proof thereof is demanded at trial.
19. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the troth of the avem~ents contained in paragraph nineteen (19) so
they are therefore specifically denied and strict proof thereof is demanded at trial.
20. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the troth of the averments contained in paragraph twenty (20) so
they are therefore specifically denied and strict proof thereof is demanded at trial.
21. The avemients contained in paragraph twenty-one (21) are conclusions of law to
which no response is required.
WHEREFORE, Defendant, Paul E. Dick, respectfully requests this Honorable Court to
enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs
and attorney fees, and such other and further relief as this Court deems just.
COUNT II - BREACH OF CONTRACT
22. The answers contained in paragraphs one (1) through twenty-one (21) to the
Plaintiff's Complaint are hereby incorporated by reference as if fully set forth herein.
23. The averments contained in paragraph twenty-three (23) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
24. The averments contained in paragraph twenty-four (24) are conclusions of law to
which no response is required. To the extent that a response is required, the averments are
specifically denied and strict proof thereof is demanded at trial.
WHEREFORE, Defendant, Paul E. Dick, respectfully requests this Honorable Court to
enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs
and attorney fees, and such other and further relief as this Court deems just.
NEW MATTER
25. The averments of fact contained in the Answers to the Plaintiff's Complaint are
hereby incorporated by reference and are made part of this New Matter.
26. Defendant lacked the capacity necessary to execute the purported Agreement of
Sale.
27. Furthermore, Defendant cannot recall if in fact he initialed each location on the
document alleged by Plaintiff to be the Agreement of Sale between the parties, and in fact the
initials at the end of the document appear to differ from those on the first several pages.
28. At all relevant times hereto, Defendant has required the assistance of his agents
named under various Powers of Attorney in order to properly manage his financial, property and
business affairs and resources.
29. At all relevant times hereto, Defendant was unable to fully understand the terms,
conditions, and requirements of the purported Agreement of Sale.
30. At no time were any of Defendant's agents named under various Powers of
Attorney present to explain the terms, conditions, or requirements of any document purported to
be signed by Defendant.
31. On or about May 22, 2002, Defendant executed a Listing Contract to list his
property for sale at the price of $250,000.00.
32. Defendant's son, and his agent under a Power of Attorney, had discussed the
terms of the Listing Contract with Defendant and agreed with the price.
33. Defendant, however, did not discuss the specific terms of any purported
Agreement of Sale with any of his agents under various Powers of Attorney.
34. The purported Agreement of Sale dated June 5, 2001 was prepared less than one
month after the property was listed in accordance with the Listing Contract.
35. Despite the short time the property was placed on the market, the purported
Agreement of Sale contains a sales price some $70,000.00 less than the listing price, and only
72% of the listing price.
36. The terms of the purported Agreement of Sale are unconscionable, overreaching
and negotiated in bad faith.
37. Paragraph Two of the purported Agreement of Sale identifies the property as
approximately 70 acres of 671 Old Mill Road.
38. Paragraph Five of the purported Agreement of Sale references an "incomplete"
subdivision and the subdivision of approximately 10 acres containing a house and barn.
39. The "sketch plan" dated June 28, 2001 and prepared by Larry V. Neidlinger is
asserted by Plaintiff to be the substantial completion of said subdivision.
40. However, the "sketch plan" identified by Plaintiff had several material errors, did
not adequately identify the acreage of the property, did not contain satisfactory lot lines to
Plaintiff, and did not otherwise correspond to the above-cited paragraphs in the alleged
Agreement of Sale.
41. The "sketch plan" identifies three (3) lots to be subdivided from the main
property, identified as Lots A, B, and C.
42. According to the "sketch plan," Lots A, B, and C are to range in sizes of
approximately 10 acres, 7 acres, and 2 acres respectively.
43. However, the "sketch plan" incorrectly states that the residual tract is to be
approximately 69.24 acres, when in fact it neglects to also subtract Lot B identified as having 7
acres.
44. Upon information and belief therefore, the "sketch plan" actually creates a
residual tract of approximately 62.24 acres, far less than the property identified in the purported
Agreement of Sale.
45. Furthermore, the "sketch plan" places the primary interior lot line for Lots A and
B in such a manner as to exclude an existing fence line utilized by Defendant and his son in the
operation of a farm.
46. If the interior lot line were properly adjusted to include said existing fence line,
the residual tract would be further reduced by a significant margin.
47. Likewise, to require Defendant to remove said existing fence line would result in
significant labor and expense not contemplated by the purported Agreement of Sale.
48. The alleged Agreement of Sale, in light of the "sketch plan," contains such
material mistakes that it is incapable of being performed in accordance with its terms.
49. At all relevant times prior to June 2001, Plaintiff assured Defendant and his agent
or agents that if the parties entered into an agreement, the property would be used solely as a
residence for himself and members of his family.
50. Plaintiff's Complaint, however, seeks among its remedies lost profits fi.om his
inability "to further subdivide and develop the property."
51. In the alternative, if this Court finds that a binding Agreement of Sale exists, said
prior oral representations of Plaintiff constitute a condition of the contract upon which Defendant
reasonably and in good faith relied.
52. In the alternative, in the absence of such representations, Defendant would not
have agreed to sell property to Plaintiff.
53. Accordingly, the representations of Plaintiff estop him from seeking the remedies
requested in the Complaint.
WHEREFORE, Defendant, Paul E. Dick, respectfully requests this Honorable Court to
enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs
and attorney fees, and such other and further relief as this Court deems just.
Dated: October 1, 2002
Respectfully Submitted,
IRWIN, McKNIGHT & HUGHES
Douglas ~Mffier, E~qu[re
Supreme Court ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendant,
Paul E. Dick
VERIFICATION
The foregoing document is based upon infomtation which has been gathered by my
counsel and myself in the preparation of this action. I have read the statements made in this
document and they are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904, relating to unswom falsification to authorities.
PAUL E DICK, by and through
his agent, RICHARD DICK
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a tree and correct copy
of the foregoing document upon the persons indicated below by facsimile and by first class
United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
James M. Robinson, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
(Attorney for Plaintiff)
Date: October 1, 2002
IRWIN, McKNIGHT & HUGHES
Douglas G~Mi~le~-, ~squire
Supreme Court ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendant,
Paul E. Dick
GLENN HERMAN,
PAUL E. DICK,
Plaintiff
v. i NO. 02-1221
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL TERM
: CIIVIL ACTION - EQUITY
ANSWER TO DEFENDANT'S NEW MATTER
Plaintiff, Glenn Herman, by and through his attorneys, Turo Law Offices,
respectfully submits the following answer to the new matter filed by the Defendant, Paul
E. Dick.
25. No answer is required.
26. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to fo,. a belief as to the truth of the avem~nt. It is therefore specifically
denied and proof thereof is demanded at trial.
27. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to form a belief as to the truth of the averment. It is therefore specifically
denied and proof thereof is demanded at trial.
28. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to fo,. a belief as to the truth of the averment. It is therefore specifically
denied and proof thereof is demanded at trial.
29. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to form a belief as to the truth of the averment. It is therefore specifically
denied and proof thereof is demanded at tdal.
30. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to form a belief as to the truth of the ave,~ent and it is therefore
specifically denied and proof thereof is demanded at trial.
31. Admitted.
32. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to fo., a belief as to the truth of the averment. It is therefore specifically
denied and proof thereof is demanded at trial.
33. After reasonable investigation, the Plaintiff is without sufficient knowledge
or info~mafion to fo~l. a belief as to the truth of the ave¢l~ent. It is therefore specifically
denied and proof thereof is demanded at trial.
34. Admitted.
35. Admitted with an explanation. Originally, Defendant wanted to list the
property for $300,000. The listing agent info~¥~l Defendant that land in that area was
selling for approximately $2,000 per acre. After some discussion, the listing agent
agreed to list the property for $250,000, but told him that he would be lucky to get
$200,000. When the subject offer of $2,571.43 per acre was made, the listing agent
informed Defendant that it was a good offer because all of the improvements ware
located on the 10 acres being retained by the Defendant. The Defendant had several
days dudng which to consider the offer before accepting it.
36. Denied.
37. Admitted.
38. Admitted.
39. Denied. Mr. Neidlinger was asked by Roger InNin, Esq. to prepare a
subdivision plan for the Defendant. The first part of this project was to prepare a sketch
plan on which the Defendant could identify the exact boundaries of the two parcels.
The sketch plan was substantially completed, not the subdivision plan.
40. Admitted. The sketch plan was incomplete because the Defendant never
appeared at a meeting scheduled at Mr. Irwin's office to discuss the proposed
subdivision and identify the exact line along which the parcel was to be divided. Mr.
Neidlinger could not properly identify the exact lot lines or acreage of the subdivided lots
without this info~,ation from the Defendant.
41. Admitted with an explanation. The sketch plan is an informal document
used to plot and sketch out the details of the moro detailed subdivision plan. Mr.
Neidlinger was using the subject sketch plan to plot the details for two proposed
transactions on the same lot, the subdivision of the parcel into two lots (Lot A and the
residual) for the Defendant, and the partitioning of approximately two acres (Lot C)
around the mobile homo for the Plaintiff (due to the Defendant's request on page 1 of
the Agreement of Sale). Lot B was plotted merely as a continuation of the interior lot
line in the event that Defendant decided to retain a larger portion of the parcel, the
proposed line being a logical place to divide the property.
42. Admitted with an explanation. In the first transaction in which the lot is
subdivided for the Defendant, Lot C is merely a portion of the residual, which was to be
sold to the Plaintiff. As mentioned above, Lot C was identified for the Plaintiff in the
event that he decided to partition an area around the mobile home after completion of
the first transaction.
43. Admitted with an explanation. Mr. Neidlinger admits that he mede a
clerical error on the sketch plan. He intended to identify the parcel to be sold by
subtracting Lot A from the total acreage of 81.24 acres. As mentioned above, Lot B
was identified only in case Defendant changed his mind about the size of the parcel to
be retained. Mr. Neidlinger never intended to deduct Lot C from the acreage to
determine the size of the residual.
~.~.. Denied. The residual lot was intended to be the total acreage of 81.24
acres minus the ten acres identified as Lot A.
45. Admitted with an explanation. Mr. Neidlinger's instructions from Roger
Irwin, Esq. was to subdivide ten acres, including the existing house and barn, from the
subject parcel of land. After plotting the parcel, Mr. Neidlinger identified a line along
which it was logical to divide the parcel, based on its present shape. There was no
logical way for him to include the house, barn and fence in a ten-acre parcel. By using
the line he identified, the house and barn fit nicely into the parcel, although the fence
remained in the residual lot. This is one of several items he intended to discuss with the
Defendant at the meeting at which the Defendant never appeared.
46. Denied. Based on the instructions given by Mr. Irwin, if the interior lot line
was moved to the fence line, then the side lot line would also be moved to keep Lot A
approximately 10 acres. This would mean that the barn would not be located in Lot A,
which is why Mr. Neidlinger proposed the interior lot line where he plotted it.
47. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to form a belief as to the truth of the averment and it is therefore
specifically denied and proof thereof is demanded at trial. By way of further answer, it
was never intended that Defendant would be required to remove the fence unless he
wished to do so of his own accord.
48. Denied.
49. Denied.
50. Admitted.
51. This ave,,ent is a legal conclusion to which no response is required. To
the extent that a response is required, the averment is specifically denied. By way of
further response, it is denied that any such oral representations were ever mede.
52. After reasonable investigation, the Plaintiff is without sufficient knowledge
or information to fom, a belief as to the truth of the averment and it is therefore
specifically denied and proof thereof is demanded at trial.
53. This ave,,ent is a legal conclusion to which no response is required. To
the extent that a response is required, the averment is specifically denied.
WHEREFORE, for all the reasons set forth above, the Plaintiff, Glenn Herman, requests
judgment in his favor and against the Defendant.
Respectfully Submitted
TURO LAW OFFICES
Date
Ja~)(s M. Robi~l(son, Esquire
2ff,~outh Pitt {itreet
Carlisle, PA 17013
(717) 245-9688
Attomey for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the Plaintiff's Answer to
Defendant's New Matter upon Douglas G. Miller, Esquire, by depositing same in the
United States Mail, first class, postage pre-paid on the 17th day of October, 2002, from
Carlisle, Pennsylvania, addressed as follows:
Douglas G. Miller, Esquire
Irwin, McKnight & Hughes
West Pornfret Professional Building
60 West Pomi~et Street
Carlisle, PA 17013
TURO LAW OFFICES
Ja~h~s M. Robinson, Esquire
27~..o.uth_P. itt ./?~r_ ~e .e. t
Ca?lisle, PA m 17013
(717) 245-9688
Attomey for Plaintiff
VERIFICATION
I, James M. Robinson, Esquire, attorney for the Plaintiff herein, have sufficient
knowledge of the fac~s contained in this Answer to Defendant's New Matter and vedfy
that the statements made in the foregoing Answer to Defendant's New Matter are true
and correct to the best of my knowledge, based upon info..afion received from the
Plaintiff. I understand that false statements herein made are subject to the penalties of
18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. A verification
executed by the Plain[iN will be filed of record as soon as it becomes available.
Date/
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
(Check one)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
( ) for JURY trial at the next term of civil court.
( X ) for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
Glenn Herman
(Plaintiff)
vs.
Paul E. Dick
(Defendant)
(check one)
( )
( )
( )
ix)
Assumpsit
l"respass
Trespass (Motor Vehicle)
· (;p~-~_'i f'ir, p~rfnrz~,-lCe
(other)
The trial list will be called on
and
Trials comrnence on
Pretrials will be held on
(Briefs are clue 5 days before pretrials.)
(The party listing this case for trial shall provide
forthwith a copy of the praecipe to all counsel,
pursuant to local Rule 214-1.)
Indicate the attorney who will try case for the party who files this praecipe:
Indicate trial counsel for other parties if known:
Doug]~.~ G_ Miller; ~.s~ire
Date:
This case is ready for trial.
2/20/03
Print Name~/ J_ames_M_~__13D._bi_n~on_~_F~
Attorney for:
]Plaintiff
GLENN HERMAN,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT
02-1221 EQUITY TERM
AND NOW, this
ORDER OF COURT
day of March, 2003, IT IS ORDERED that an
adjudication shall be conducted in Courtroom Number 2, Cumberland County
Courthouse, Carlisle, Pennsylvania, at 1:30 p.m., Wednesday, Ap
Edgar B. Bayley,
03.
James M. Robinson, Esquire
For Plaintiff
Douglas G. Miller, Esquire
For Defendant
Court Administrator
:sal
GLENN HERMAN,
PLAINTIFF
Vo
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT
02-1221 EQUITY TERM
ORDER OF COURT
AND NOW, this {,"? day of March, 2003, IT IS ORDERED that the
adjudication currently scheduled for Wednesday, April 16, 2003, IS CANCELLED. The
adjudication is rescheduled to Thursday, May 15, 2003, at 8:45 a.m., in Courtroom
Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania.
James M. Robinson, Esquire
For Plaintiff
Douglas G. Miller, Esquire
For Defendant
Court Administrator
Edgar B. Bayley, J.
:sal
Turo Law Offices
RON TURO, Esquire
ROBERT J. MULDERIG, Esquire
GALEN R. WALTZ, Esquire
JAMES M ROBINSON, Esquire
DANIEL D. WORLEY, Esquire
www. TuroLaw. com
28 South Pitt Street
Carlisle, Pennsylvania 17013
(717) 245-9688
(800) 562-9778
Fax (717) 245-2165
March 12, 2003
The Honorable Edgar B. Bayley
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013-3387
Re:
Glenn Herman v. Paul E. Dick
No. 02-1221 Equity Term
Dear Judge Bayley:
I am in: receipt of your Order dated March 10, 2003 wherein you scheduled
adjudication of the above-referenced matter for April 16, 2003. I have just been
contacted by my client who indicates that he is having major surgery during March and
will require the month of April to recover.
I am writing to request that the above matter be rescheduled for sometime after
May 1, 2003.
Thank you for you consideration of my request.
JMR/jge
cc:
Sincerely,
a ' ·
Douglas G. Miller, EsqUire
Glenn Herman
GLENN HERMAN,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT
: 02-1221 EQUITYTERM
IN RE: ADJUDICATION IN EQUITY
AND NOW, this
DECREE NlSl
day of June, 2003, IT IS DECREED:
(1) Defendant, Paul E. Dick, shall convey to plaintiff, Glenn Herman, that part of
his farm at 671 Old Mill Road, Lower Frankford Township, Cumberland County, south of
the established fence, under the terms and conditions in the contract of sale dated June
5,2001.
(2) Plaintiffs claim for collateral damages, IS DENIED.
(3) Each party shall pay their own attorney fees and costs.
Edgar B. Bayley, J.
James M. Robinson, Esquire
For Plaintiff
Douglas G. Miller, Esquire
For Defendant
:sal
GLENN HERMAN,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT
Bayley, J., June 3, 2003:--
: 02-1221 EQUITYTERM
IN RE: ADJUDICATION IN EQUITY
OPINION AND DECREE NISI
On March 12, 2002, plaintiff, Glenn Herman, instituted this complaint in equity
against defendant, Paul E. Dick. Plaintiff alleges that he entered into a written contract
dated June 5, 2001 to purchase real estate from defendant, and that defendant
breached the agreement by refusing to transfer the property to him. Plaintiff seeks
specific performance of the contract of sale and collateral damages for defendant's
breach. An adjudication was conducted on May 15, 2003. The issues have been
briefed and are ready for decision.
FINDINGS OF FACT
Paul Dick, age 84, lives in Carlisle. He owns an 81.24 acre farm at 671 Old Mill
Road, Lower Frankford Township, Cumberland County. There is a farmhouse on the
property in which his son Richard Dick has lived for about ten years. Richard Dick has
used the property as a crop farm for about twenty years. He grows mostly hay which
he uses for raising beef cattle on the property. About nine years ago, Richard Dick built
02-1221 EQUITY TERM
a sturdy fence running generally east and west across the width of the property to the
south of where the farmhouse, a barn and a pasture is located. The pasture provides
access to a stream. Dick uses the pasture to graze his cattle. At times he uses the
stream to water them.
In the early part of 2001, Paul Dick contacted Peter Kafkales, a real estate agent
for Jack Gaughen Realtor, ERA. Dick told Kafkales that he wanted to sell the land on
his farm beyond the fence and keep the remainder. Dick wanted the remainder so his
son would be able to continue to live in the farmhouse, use the barn, and raise cattle on
the land retained. When the property was sold, Richard Dick could rent other land on
which to grow hay. Peter Kafkales visited the farm and Paul Dick showed him what he
wanted to sell. Kafkales knew that the pasture with access to the stream was to be
retained as part of the land around the house and barn, and that the fence was to be
the line of demarcation for a subdivision of the property. There is a mobile home that
Dick rents to a woman on the south end of the farm. That part of the farm was to be
sold but Dick wanted to protect the current lessee indefinitely.
Ka~ales drew up a listing agreement for 671 Old Mill Road, Newville, Lower
Frankford Township, Cumberland County at $250,000, which Paul Dick signed.
Ka~ales put the property on the Multi-List using a figure of"70 plus acres" to be sold
out of 80 acres. The acreage was listed as "70 plus" by "eyeballing" the property.
Glenn Herman saw a sale sign on the farm and contacted William Myers, an agent for
Jack Gaughen Realty, ERA. Myers never met Paul Dick. Myers, Herman, and
-2-
02-1221 EQUITY TERM
Kafkales went together to see the farm. Herman liked the property. He wanted to
move from New Jersey, build a house on the property in which he would live with his
mother, and build two houses on two acre Pots which he would sell to raise money to
put toward his own house. Herman made an offer and Dick made a counteroffer.
Herman increased his offer which Dick accepted and which resulted in his execution of
a written agreement of sale dated June 5, 2001. William Myers drafted that sales
contract which sets forth in part:
1. "70 -+ Acree of 571 Old Mill Road." (Emphasis added.)
2. "Purchase price $180,000."
3. "Settlement to be made on or before August 8, 2001, or date of final
subdivision approval."
4. "Since subdivision is incomplete, offer is $2,571.43 per acre and
final price will be based on # of acres times the $2,571.43. Only
subdivision will be approx. 10 Acre lot containing house and barn, as
per seller's request." (Emphasis added.)
5. "Buyer agrees to continue current land rental agreement with owners
of mobile home on property."
Herman paid a deposit of $2,500 on the contract. Larry Neidlinger, a surveyor,
was contacted by Paul Dick's attorney to prepare a land subdivision needed for the sale
to be completed. Neidlinger talked to Peter Kafkales, but he never talked to Paul Dick
or saw the agreement of sale. Neidlinger prepared a sketch to be utilized by Dick and
-3-
02-1221 EQUITY TERM
Herman to create some parameters to help them determine where the dividing lines
would be located so he could then prepare a subdivision to be submitted to Lower
Frankford Township? Neidlinger met Herman who told him that he wanted to subdivide
the land on which the mobile home was located. Herman retained Neidlinger for that
purpose and also had him identify an area on the sketch that approximated the location
of a house so that the land could be probed to determine if it was adequate for sewage
disposable. Herman told Neidlinger that he wanted his dividing line with Dick to be at
least in a tree line that is closer to Dick's house and barn than the fence so that he
could be assured of continued visual protection from those buildings. Neidlinger did not
walk into the woods so he did not know that the fence crossed the width of the property.
On the sketch, Neidlinger drew a line through the woods, not along the fence, and
continued it east. The line then goes through the fence and through the woodland that
is south of the pasture? Neidlinger also drew a line just east of the house and barn
enclosing approximately ten acres.3 The road frontage is to the west. The pasture and
part of the woodland to the east as enclosed on the sketch is approximately seven
acres? Neidlinger estimated the acreage in Tract A and Tract B because the woodland
Defense Exhibit No. 1, a copy of which is attached to this opinion.
The fence is only depicted on the western side of the property.
Tract A on the sketch.
Tract B on the sketch.
02-1221 EQUITY TERM
and marshy areas of the typography make it extremely difficult, even with his expertise,
to accurately determine the amount of the acreage.
THE ISSUES
Plaintiff maintains that defendant is contractually obligated to convey his farm to
him except for that area designed as Tract ^ on the Neidlinger sketch consistent with
the details to be drawn on a final subdivision plan. Alternatively, plaintiff maintains that
defendant is contractually obligated to convey his farm to him except for that area north
of the fence. Defendant maintains that plaintiff is not entitled to a decree of specific
performance. The issues are whether plaintiff is entitled to a decree of specific
performance, and if so whether he is entitled to any collateral damages.
LEGAL PRINCIPLES
In Yinger v. Springer, 452 Pa. 66 (1973), a cause of action in equity for
specific performance was based on a written sales agreement that described "the
property known as R D 1 New Cumberland Jacob Springer's 80 acres more or less
wich [sic] will exclude 7 acres of the 87 acres more or less." Citing Suchan v. Swope,
357 Pa. 16 (1947), the Supreme Court of Pennsylvania noted:
Parol evidence to describe the land intended to be sold is
one thing, and parol evidence to apply a written description to land
is another and very different thing, and for that purpose is
admissible.
The Court concluded:
In the instant case we must deal with a parcel which can be
defined algebraically as "my farm minus X" where the parcel
02-1221 EQUITY TERM
constituting "my farm" is given a more complete description than
was given in Suchan and the parcel equal to "X" is defined only as
a parcel equal to "7 acres" but which parcel appellant alleges is the
subject of a sales agreement between Yinger and another buyer.
Just as parol evidence is admissible to show that the description of
the whole parcel is sufficiently definite under the statute, so parol
evidence is admissible to show that the description of the parcel to
be subtracted from the whole parcel is sufficiently definite under the
statute.
In Turner v. Hoetetler, 359 Pa. Super. 167 (1986), a cause of action in
equity for specific performance was based on a written contract that provided for
the sale of a surveyed two acre tract and an option to purchase eight additional
acres. The contract provided that "[t]he said eight acres shall be contiguous to
and shall lie generally south and west of the two acre parcel. The exact
boundary lines of the said eight acres shall be determined by mutual agreement
of the parties." The purchasers took possession of the two acre tract but when a
dispute arose with respect to the eight additional acres the purchasers brought
an action in equity for specific performance of the contract. Reviewing the
relevant decisions, the Superior Court noted:
[w]here, from the face of the contract, it appears that a
certain or specific tract was intended to be conveyed, but its
description is ambiguous due to its wording, parol evidence will be
admissible to allow a more precise description to be made, and
specific performance will be a proper remedy.
The trial judge allowed the introduction of conflicting parol testimony:
Appellees' testified that, after some discussion, appellant's
agreed to sell appellees 10 acres. Appellees further testified that
the contract was drawn as it was to utilize the two acre survey
02-1221 EQUITY TERM
which had already been completed; and that the so-called eight
acre "option" was an extension of the two acre tract as defined by
natural borders, such as fences, tree lines and the like. Appellees
also testified that although some concern arose over the wording in
the memorandum when it was presented to them, all the parties
were in a hurry to close the deal and they chose not to have it
redrafted, as it had taken several weeks to get the draft in question
from Mr. Ogburn. According to appellees, in September, 1980,
when the first $2,000 payment became due, Mr. Turner and Mr.
Hostetler "walked the lines" of the eight acres to conclusively
establish its borders. Appellants, Hostetlers, testified that the initial
agreement was only firm on the two acres but that the Turners had
desired an opportunity to purchase more if they later desired,
hence the option was included. Hostetlers also testified that,
although several proposals and counter-proposals were made
regarding the borders of the eight acre tract, none were ever
mutually agreed to.
The trial court found appellees' testimony more credible and issued a
decree nisi for the specific performance of the contract, setting the boundaries as
per the testimony of appellees. The Superior Court of Pennsylvania affirmed,
concluding:
The trial judge found that the parties did subsequently
determine the boundaries of the eight acres in question. At that
time, giving effect to that factual finding, the obligation arose to
convey the tract, as set by the parties, upon timely payment of the
sales price which has been paid in full. Appellants' failure to
convey resulted in the bringing of an action for specific
performance and, considering the trial judge's finding, he was
correct in ordering the tract to be conveyed.
DISCUSSION AND CONCLUSIONS
This case involves a contract for the sale of a specific tract but its
description is ambiguous. Thus parol evidence was properly admitted, without
-7-
02-1221 EQUITY TERM
objection by either party, to determine if possible a description to the land
defendant contracted to sell to plaintiff. The evidence is that Paul Dick contacted
Peter Kafkales in the early part of 2001 to Sell that part of his farm south of the
established fence, with the current lessee of the mobile home at the southern
end of the property to be protected indefinitely. Kafkales clearly understood
what was to be sold, and it was on that basis that he took the listing for Jack
Gaughen Realty, ERA. Dick's intent is confirmed by his son Richard that the
crop portion of the farm would be sold which would allow him to continue to live
in the farmhouse and utilize the barn and the surrounding land that includes the
pasture he needs to raise cattle. The dispute as to what land is included in the
agreement of sale dated June 5, 2001, which was drafted by William Myers who
never met Paul Dick, is caused by the language used in the sales contract: "70 +
acres of 671 Old Mill Road - Only subdivision will be approx. 10 Acre lot contain
house and barn, as per seller's request." (Emphasis added.) Paul Dick never
made any "request." He listed for sale and contracted to sell only that part of his
farm south of the fence. The amount of acreage to be sold, described in the
contract as 70 acres plus or minus, was and still is unknown because the
typography of the property makes it extremely difficult to estimate the acreage
being retained. That is why the sales price is $2,571.43 per acre rather than the
set amount.
Based on our findings of fact, and pursuant to the principles set forth in
02-1221 EQUITY TERM
Yinger v. Springer, supra and Turner v. Hostetler, supra, we conclude that
plaintiff is entitled to specific performance of the written contract of sale dated
June 5, 2601, under the terms and conditions therein, for that part of defendant's
farm south of the established fence. That is what defendant contracted to sell
and plaintiff contracted to buy?
Plaintiff seeks an award of collateral damages as pleaded in his complaint
of any profit he may have earned from the sale of the lots he planned to
subdivide, his $2,500 down payment, money he owes to Larry Neidlinger, his
attorney fees and his costs of suit. In Ru$iski v. Pribonic, 511 Pa. 383 (1986),
the Supreme Court of Pennsylvania stated:
consequential damages may be awarded as collateral relief to a decree of
specific performance, since the power of a chancellor extends to shaping
and rendering a decree which accords with the equities in the case. $igal
v. Manufacturer's Light & Heat Co., 450 Pa. 228, 299 A.2d 646 (1973);
Township of Salisbury v. Vito, 446 Pa. 200, 285 A.2d 529 (1971);
Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968).
However, these damages must be such as would naturally
and ordinarily follow from the breach, must have been reasonably
foreseeable and within the contemplation of the parties at the time
they made the contract and must be capable of being proved with
reasonable certainty. Keystone Diesel Engine Company v. Irvin,
411 Pa. 222, 191 A.2d 376 (1963); Adams v. Speckman, 385 Pa.
308, 122 A.2d 685 (1956); Taylor V. Kaufhold, 368 Pa. 538, 84
A.2d 347 (1951).
5 This means that Dick must subdivide his property so that he can present a deed to
plaintiff in conformity with our decree.
-9-
02-1221 EQUITY TERM
Before this dispute arose, plaintiff asked Larry Neidlinger whether he
could further subdivide two building lots on the subdivision plan to be submitted
to Lower Frankford Township for the purchase from Dick. Neidlinger advised
him, and plaintiff accepted the advice, not to complicate the Dick subdivision but
to wait until his purchase of the land was completed. Our remedy of specific
performance will allow plaintiff to later seek a subdivision of lots on the property
he is purchasing. He has not proven any damages with reasonable certainty.
Furthermore, such damages would not naturally follow from Dick's refusal to
transfer the land plaintiff demanded, and were not foreseeable and within the
contemplation of the parties at the time they made their contract. Plaintiff's
$2,500 down payment will go toward the final purchase price so he has not lost
that money. We will not award plaintiff counsel fees. He sought to enforce
specific performance of that part of the farm designated as Tract B on the
Neidlinger sketch with the dividing line for Tract A in the woods and north of the
fence. He is not entitled to that relief to which Dick has successfully defended.
Equity warrants that each party pay their own attorney fees and costs in bringing
their dispute to resolution.
DECREE NI$1
AND NOW, this ~'(~,. day of June, 2003, IT I$ DECREED:
(1) Defendant, Paul E Dick, shall convey to plaintiff, Glenn Herman, that part of
his farm at 671 Old Mill Road, Lower Frankford Township, Cumberland County, south of
James M. Robinson, Esquire
For Plaintiff
02-1221 EQUITY TERM
the established fence, under the terms and conditions in the contract of sale dated June
5, 2001.
(2) Plaintiff's claim for collateral damages, I$ DENIED.
(3) Each party shall pay their own attorney fees and costs.
By the~Cou
Douglas G. Miller, Esquire
For Defendant
;sal
-11-
GLENN HERMAN, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF ' CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT
· 02-1221 EQUITY TERM
AND NOW, this
ORDER OF COURT
day of June, 2003, IT IS ORDERED that
defendant shall file a brief in chambers not later than Thursday, June 26, 2003, on his
motion for post-trial relief. Plaintiff shall file a response brief not later than Monday, July
7, 2003. If either party seeks oral argument the request should be made at the time of
the filing of the briefs, in which case oral argument will be sch~_~:J) by this judge.
Edgar B.
James M. Robinson, Esquire
For Plaintiff
Douglas G. Miller, Esquire
For Defendant
:sal
GLENN HERMAN,
PLAINTIFF
V.
PAUL E. DICK,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
DEFENDANT : 02-1221 EQUITY TERM
IN RE: MOTION OF DEFENDANT FOR POST-TRIAL RELIEF
ORDER OF COURT
AND NOW, this ~/~ day of July, 2003, the motion of defendant for post-
trial relief, IS DENIED. IT IS ORDERED:
(1) Defendant, Paul E. Dick, shall convey to plaintiff, Glenn Herman, that part of
his farm at 671 Old Mill Road, Lower Frankford Township, Cumberland County, south of
the established fence, under the terms and conditions in the contract of sale dated June
5, 2001.
(2) Plaintiff's claim for collateral damages, IS DENIED.
(3) Each party shall pay their own attorney fees and costs.
James M. Robinson, Esquire
For Plaintiff
Douglas G. Miller, Esquire
For Defendant
Edgar B. B'ay~y,~.[,,,(
~.~ ~/o.0~3
:sal
GLENN HERMAN,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
PAUL E. DICK,
DEFENDANT : 02-1221 EQUITY TERM
IN RE: MOTION OF DEFENDANT FOR POST-TRIAL RELIEF
OPINION AND ORDER OF COURT
Bayley, J., July 9, 2003:--
On March 12, 2002, plaintiff, Glenn Herman, instituted this complaint in equity
against defendant, Paul E. Dick. Plaintiff alleged that he entered into a written contract
dated June $, 2001 to purchase real estate from defendant, and that defendant
breached the agreement by refusing to transfer the property to him. Plaintiff sought
specific performance of the contract of sale and collateral damages. An adjudication
was conducted on May 1{~, 2003. On June 3, 2003, the following Decree Nisi was
entered, supported by a written opinion:
(1) Defendant, Paul E. Dick, shall convey to plaintiff, Glenn
Herman, that part of his farm at 671 Old Mill Road, Lower Frankford
Township, Cumberland County, south of the established fence, under the
terms and conditions in the contract of sale dated June 5, 2001.
(2) Plaintiff's claim for collateral damages, IS DENIED.
(3) Each party shall pay their own attorney fees and costs.
02-1221 EQUITY TERM
On July 13, 2003, defendant filed a timely motion for post-trial relief pursuant to
Pa. Rule of Civil Procedure 227.1(a)(4). Defendant avers:
The Court erred in the Decree Nisi by ruling that Defendant was
correct in disputing the amount of property that was to be retained, but
that the price is restricted to a per acre amount, despite that Plaintiff knew
or should have known the approximate boundary line that would be
established.
The Court's decision effectively decreases the purchase price
approximately $25,000.00, which issue is an integral and essential part of
the contract.
Defendant contends that the purchase price according to the
Agreement of Sale for the property is One Hundred Eighty Thousand and
00/100 ($180,000.00) Dollars.
In the alternative, Defendant contends that the Court was incorrect
as a matter of law because the mistake as to the acreage so changes the
intended purchase price as to prevent the Agreement of Sale from being
enforceable.
DISCUSSION
Defendant avers in his post-trial motion that there was testimony at trial that "he
was accustomed to agreeing to a price for property that assured [him] a net sum." The
testimony at trial was that defendant sold numerous tracts over the years without using
a realtor. It was his custom to agree to a price with the purchaser paying all expenses
except attorney fee. Contrary to that custom, when defendant decided to sell part of his
81.24 acre farm, he listed the property with a realtor. On June 5, 2001, he signed an
agreement of sale with plaintiff that contained the following provisions:
-2-
02-1221 EQUITY TERM
"70 + Acres of 671 Old Mill Road."
"Purchase price $180,000."
"Since subdivision is incomplete, offer is $2,571.43 per acre and final
price will be based on # of acres times the $2,571.43. Only subdivision
will be approx. 10 Acre lot containing house and barn, as per seller's
request."
The price of 70 acres at $2,571.43 an acre is $180,000. The typography of the
land that defendant is retaining made it extremely difficult to estimate the amount of that
acreage; therefore, the land being sold was listed "70 +," and the final price was
"$2,571.43 per acre" rather than a set $180,000. As it turns out, the land being sold is
less than 70 acres. The per acre price protected both parties. It is unlikely that
defendant would be making the same argument if the land being sold had turned out to
be more than 70 acres. This court has not decreased the purchase price because the
order of specific performance requires defendant to convey only that part of his farm
that he agreed in writing to sell at a price of $2,571.43 per acre. Accordingly, for the
reasons set forth in the opinion in support of the decree nisi which is incorporated
herein, the order of specific performance properly enforces the sale under the terms
and conditions that defendant and plaintiff agreed to in their written contract of June 5,
2001. Defendant cannot change the terms. He is not entitled to post-trial relief.
ORDER OF COURT
AND NOW, this (~ day of July, 2003, the motion of defendant for post-
-3-
02-1221 EQUITY TERM
trial relief, IS DENIED. IT IS ORDERED:
(1) Defendant, Paul E. Dick, shall convey to plaintiff, Glenn Herman, that part of
his farm at 671 Old Mill Road, Lower Frankford Township, Cumberland County, south of
the established fence, under the terms and conditions in the contract of sale dated June
5, 2001.
(2) Plaintiff's claim for collateral damages, IS DENIED.
(3) Each party shall pay their own attorney fees and costs. ~
By Court,
Edgar B. Bayley, J.
James M. Robinson, Esquire
For Plaintiff
Douglas G. Miller, Esquire
For Defendant
:sal
-4-
GLENN HERMAN,
PAUL E. DICK,
Plaintiff,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
._
: NO. 02 - 1221 CIVIL TERM
:
: C1VIL ACTION - EQUITY
:
: JURY TRIAL DEMANDED
_NOTICE OF APPEAL
Notice is hereby given that Paul E. Dick, Defendant in the above-captioned matter,
hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on
the 9t~' day of July, 2003. This Order has been entered in the docket as evidenced by the attached
copy of the docket entry.
Dated: August 8, 2003
By:
Respectfully Submitted,
IRWIN, Mci(NIGHT & HUGHES
Douglas ~}. l~lffier, Esquire
SupremeCourt ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendant,
Paul E. Dick
GLENN HERMAN,
PAUL E. DICK,
Plaintiff,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
..
: NO. 02 - 1221 CIVIL TERM
_.
: CIVIL ACTION - EQUITY
..
: JURY TRIAL DEMANDED
REQUEST FOR TRANSCRIPT
A Notice of Appeal having been filed in this matter, the official court reporter is hereby
ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of
the Pennsylvania Rules of Appellate Procedure.
Dated: August 8, 2003
By:
Respectfully Submitted,
IRWIN, McKNIGHT & HUGHES
Do,las C~Mffier, Esq~uire-
Supreme Court ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendant,
Paul E. Dick
PYS510
2002-01221 HERMAN' GLENN (vs) DICK PAUL E
Reference No..:
Case Type ..... : COMPLAINT - EQUITY
Judgmeh% ...... .00
Judge Assigned:
Disposed DescriBe Comments .............
cumberland County Prot~onotary's office
civil Case Inquiry
Filed ........ :
Time ......... :
Execution Date
Jury Trial...
Disposed Date
Higher Crt 1.
Higher Crt 2.
Page 1
3/12/2002
12:40
o/oo/oooo
o/oo/oooo
08876
DICK PAUL E
1100 ENOLA ROAD
CARLISLE PA 17013
Judgment Index
6/03/2003 DECREE NISI
DICK PAUL E *********************************
. Entries *************************************
3/12/2002
3/15/2002
4/19/2002
5/0?/2002
5/07/2002
8/12/2002
10/01/2002
10/01/2002
10/17/2002
2/20/2003
3/11/2003
3/17/2003
.... FIRST ENTRY ....
~O~P~A~N~ ~ ~Q~I~Y ..............
SHERIFF'S FILE RETURNED FILED.
Case Type: COMPLAINT EQUITY Ret Type.: Regular
Litigant.: DICK PAUL ~
Address..: 1100 ENOLA ROAD
Ct¥/St/ZP: CARLISLE, PA 17013
Hn~ To: PAUL E DICK
Shf/DDty · BRIAN.BARRICK -^~3 00
e Tlm~~ 03/14/2002 £u~ :
Dat/ ' ' ~ ~ Da ~v' ES M ROBINSON 03/15/2002
Costs .... : ~'=~ ~ _~. JAN
~L~I~ARY OBJECTIONS OF DEFT TO PLFF'S COMPLAINT - BY DOUGLAS G
MILLER ESQ FOR DEFT .............................
~-~0 PRELIMINARY OBJECTIONS BY JANES M ~?~?~_~_~?~_~_
~&~-~6~-L~-&~-~6~-~'--~ENDANT'S PRELIMINARY
OBJECTIONS) BY JANES M. ROBINSON, ESQ._ ............................
A~jk~-A~-~$6~-2-6A~&6-~/[2-02- IN RE PRELIMINARY OBJECTION OF
DEFT TO PLFF S COMPLAINT- A~E DISMISSED - BY THE COURT EDGAR B
BAYLEY J COPIES MAILED 8/14/02 ..............
~R WITH NEW MATTER TO PLFF'S ANENDED COMPLAINT - BY DOUGLAS G
MILLER ESQ FOR DEFT .........
~-~ ................................................ G
H NEW MATTER TO PLFF'S AMENDED COMPLAINT - BY DOUGLAS
MILLER ESQ FOR DEFT ............................
~WER TO DEFT'S NEW MA~[~_i_~[_~_A~_~_~_~?~?~_~?_[?~_~[[ .....
pRAECIPE FOR LISTING CASE FOR TRIAL - BY JAMES M ROBINSON ESQ FOR
PLFF ...........................................................
COURT - DATE 3/10/0 M E L °N
............................................. ............
-- TED 3 17/03- IT IS QRD~RED THAT TH -
ORDER OF COUR%.z_~ o~DULED FOR 4/16/03 IS CANCE~E9 THE
ADJUDICATION co~m~gaM~¥~ TO 5/ /03 AT 8:45 AN IN c~ z .....
BAYLEY J COPIES MAILED ...........................
.........................................
PLAINTIFF
DEFENDANT
Amount
ROBINSON JAMES M
MILLER DOUGLAS G
Date Desc
HERMAN GLENN
22 HENRY ROAD
BRANCHBURG NJ
Attorney Info
General Index
Page 2
PYS510 Cumberland County Prot~onotary's office
civil Case Inquiry
2002-01221 HERMAN' GLENN (rs) DICK PAUL E
Filed ........ : 3/12/2002
12:40
Reference No..: Time ......... :
Case Type ..... : COMPLAINT - EQUITY Execution Date 0/00/0000
JudgmenZ ...... .00 Jury Trial ......
Judge Assigned: Disposed Date. 0/00/0000
Disposed Desc.: . ts ............. Higher Crt 1.:
............ Case Commen Hi~her Crt 2.:
ISI DATED 6/3/03 - IN RE ADJUDICATION IN EQUITY -
6/03/2003 DECREE ~ICK ~HALL CONVEY TO PLFF GLENN HERMAN THAT PART OF HIS
PAUL E TWP CUMBERLAND cOUNTY
FARM AT 671 OLD MILL ROAD LOWER FP_ANKFORD
SOUTH OF THE ESTABLISHED FENCE .UNDER THE ,TERMS AND CONDITIONS IN
THE CONTRACT OF SALE DATED 6/5/03 - PLFF S CLAIM FOR COLLATEP~AL
DAMAGES IS DENIED - EACH PARTY SHALL PAY THEIR OWN ATTY FEES AND
COSTS - Bi THE COURT EDGAR B BAYLEY J ESQ COPIES MAILED
6/13/2003 ~NDANT S POST-TRIAL MOTION __B_Y__D_O_U_G__I~_S__G__M_I_L_L_E_R__E_S_Q__F_O__R_~[~___
~-~-~&~-[-6~-~/{6/03 - IT IS ORDERED THAT DEFT SHA~
MADE AT THE TIME OF Tmm
ARGUMENT WILL BE SCHEDULED BY THIS JUDGE - BY THE COURT EDGAR B
BAYLEY J COPIES MAILED .........................
...................... &0~---6~-~2~26~-- IN RE MOTION OF DEFT
OP - ENIED - PLFF CLAIM _
7/09/2003 INION AND ORDER OF C _ FOR COLLATERAL DAMAGES
FOR POST-TRI_A~L~EL~I~EF~, e~.l, y THEIR OWN ATTY FEES AND COSTS
IED - ~AC~ ~ ...... PA
IS DEN J COPIES MAILED ,/10/03
BY THE COURT EDGAR B BAYLEY LAST ENTRY .............
Escrow Information *
· s Ad' End Bal
· Fees & Debits ........ *****************************************************
COMPLAINT 35.00 35.00 .00
.50 .50 .00
TAX ON CMPLT 5.00 5.00 .00
SETTLEMENT 5.00 5.00 .00
JCP FEE ....
............................
45.50 45.50
· d of Case Information
********************************************************************************
GLENN HERMAN,
PAUL E. DICK,
Plaintiff,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02 - 1221 CIVIL TERM
:
: CIVIL ACTION - EQUITY
:
: JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
James M. Robinson, Esquire
28 South Pitt Street
Carlisle, PA 17013
Attorney for Plaintiff
The Honorable Edgar B. Bayley
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
pam Sheaffer, Court Reporter
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Date: August 8, 2003
IRWIN, McKNIGHT & HUGHES
er~ Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendant,
Paul £. Dick
GLENN HERMAN, :
Plaintiff :
PAUL E. DICK, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
02-1221 CIVIL TERM
TRANSCRIPT OF PROCEEDINGS
Proceedings
Cumberland County Courthouse,
On May 15,
held before the HONORABLE EDGAR B. BAYLEY, J.
Pennsylvania,
Carlisle,
2003,
In Courtroom Number 2
APPEARANCES:
James M. Robinson, Esquire
For the Plaintiff
Douglas R. Miller, Esquire
For the Defendant
FOR PLAINTIFF
INDEX TO WITNESSES
DIRECT CROSS REDIRECT RECROSS
Glenn Herman 3 11 25 --
Pete N. Kafkalas 27 37 50 50
William R. Myers 51 55 ....
Larry Neidlinger 57 67 77 --
Glenn Herman 79 81 ....
(Recalled)
FOR DEFENDANT
Paul E. Dick 84 98 --
Richard L. Dick 101 114 116
Roger Irwin, Esq. 118 126 --
INDEX TO EXHIBITS
FOR THE PLAINTIFF MARKED
1 - Agreement for sale of
vacant land 6
2 - Turo Law Offices
transaction listing 9
3 - Statement of Estimated
Seller's Costs 26
FOR THE DEFENDANT
1 - Subdivision plan 12
2 - Listing contract 37
3 - Statement of Estimated
Seller's Costs 41
ADMITTED
83
83
83
130
130
130
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE COURT: Does
re-read the opinion I wrote,
May ]_5, 2003
Carlisle, Pennsylvania
anyone want to make an opening?
so I am familiar with what the
issues are. If you don't want to make an opening, call your
first witness.
MR. ROBINSON: Your Honor, I would like to call
Glenn Herman to the stand.
GLENN HER~N,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. ROBINSON:
Q
the Court,
A
Jersey.
Q Mr. Herman, how is it that we are in Cumberland
County, Pennsylvania, for a matter concerning property?
A I had seeked to purchase a piece of property from
Mr. Paul Dick and made an offer, which he accepted, and a
contract was signed. Later on he did not wish to sell after it
was signed.
Q
A
Sir, would you state yeur full name and address for
please?
Glenn Herman, 22 Henry Road, Branchburg, New
How did you learn that the property was for sale?
I had been looking for property for approximately 6
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
years to build a house for retirement purposes, and was looking
throughout actually a few states. While riding through this
particular area there was a sign that
property.
Q
A
was posted on the
Who did you contact abeut the property initially?
I initially contacted the agency that was listed on
the sign and got in touch with Mr.
Q Mr. Bill Myers, okay.
A
walking it?
Q
A
telephone,
agreed --
Bill Myers.
When did you first see the property?
When I had gone by it. But are you talking about
Yes, sir.
Shortly after talking to Mr. Myers on the
I came up the following day I believe it was and we
we agreed to meet at the real estate office, which I
did. We traveled out to the property and I believe the real
estate agent, Pete, came a little while later to walk the
property with us and show us the property because he was the
listing agent apparently and he was familiar with the basic
outline of the property, the boundaries.
Q What were your plans for the property?
A Most of it I was going to continue to use as it
was, which was farm; however, I was intending to build a house
for myself, my own residence. On the two outer corners of the
property I was planning on building two other houses which I
4
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
was going to sell
Q
A
Q
for profit.
So it would require
Yes.
subdivision,
Additional work by professionals
complete your plans?
A Correct.
Q
A
survey?
in order to
What was presently located on the property?
The only thing that was on the property which was
for sale was a trailer that was being lived in by individuals
who I had not met. In the contract, it stipulated that the
individuals would still be allowed to stay on the property and
the lease continued as available for them. At which point
after the contract had been signed, I asked Mr. Neidlinger, who
was doing a survey, while he was doing a survey he might as
well subdivide that in case it was not subdivided by the county
already for approximately two acres for that site, and that is
the only other structure that was on the property that I am
aware of.
Q
few times,
During your testimony you mentioned a contract a
I would like you to take a look at this. This is
an agreement for the sale of vacant land. Do you recognize
that document?
A It has been over 2 years.
THE COURT: Do you have it marked?
MR. ROBINSON: No, Your Honor.
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it marked.
MR. ROBINSON: I apologize, Your Honor.
like to have that marked Plaintiff's Exhibit 1.
A
THE COURT: If you are going to utilize it, I want
Do that first.
I would
(Plaintiff's Exhibit 1 marked for identification.)
Yes, I would say this is a contract and my initials
are also on it as the buyer.
BY MR. ROBINSON:
Q What is the size of the property that we are
talking about?
A The size of the property was undetermined exactly,
it was approximately 72 acres. That was to be verified by
survey, it would be plus or minus.
Q It was to be, does that mean that there was
additional subdivision work that had to be done prior?
A It was not laid out exactly, because Mr. Dick
wanted approximately ten acres, according to the contract,
where he had his house and his barn. and whatever structure
might have been on the property.
Initially, the property as surveyed was 82 acres,
plus or minus.
portion, it was
wind up being.
per acre what
minus
So cutting out the ten acres, surveying that
undetermined exactly what the acreage would
According to the contract, it was figured out
I would pay for whatever remained of the acreage,
the ten acres.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
it looks like $167,500 that is crossed off.
how the final sales price was arrived at?
On the contract there is an amount, a sale price,
Can you tell me
The initial price that I had offered was not
I asked I believe at ~hat time for Mr. Myers, who
to check with the surrounding vicinity to
see whether or not what the upper properties were going for.
At which point I made another offer rounding it off basically,
making it a little neater, just rounding it off. Where I was
paying approximately, according to the other listings,
approximately $200 more an acre.
Q What was that total sale price?
A 180,000 I believe. It would probably increase if
the acreage was larger than said acreage because of a final
survey.
Q When was this contract supposed to be consummated
or when was it supposed to be?
A I believe in August of 2001.
Q It is on the contract, is it not?
A The agreement was signed June 5, 2001. Seller's
written approval would be by June 8, 2001, on or before that
date; and the settlement made on or before August 8, 2001, or a
date of final subdivision approval.
Q The final comment that you read I see is
handwritten on the contract, and it is initialed?
A
accepted.
was representing me,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Q
be done,
work?
A
Yes, I initialed it.
Obviously, some additional subdivision work had to
do you know if anybody or who was retained to do that
From my initial contact it was Larry Neidlinger who
was going to do the initial sub -- division or survey of the
property. I had gotten in contact with Mr. Neidlinger and
walked the property with him and made some comments to him at
the time about doing some extra work that I would pay for
because I was under the understanding that the seller would
have to pay for the initial sub -- plot layout.
Anything I wanted extra, like the two acres laid
out for the little house that was on the property, you know,
for that, plus any other subdivision that I wanted. So I was
going to handle that out of my own pocket.
Q Did you ask Mr.
work for you?
A
contract,
A
Q
price was?
A
Q
Absolutely.
Your initial
Neidlinger to start any of that
offer for the property, from the
was how much, sir?
167,500.
Was there any negotiating concerning what the final
Repeat that.
Was there any negotiating concerning that --
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
offer
again
was
not
But
there
agent
to Mr. Dick.
a counter offer,
A I made the offer through Mr. Myers, he made the
to I believe -- I guess it was Pete who made the offer
It came back that -- no, I believe there
but I can't quote you the amount, it is
really written here period, so I can't come up with it.
then I offered a second, and it was accepted.
Q But you do recall
somewhere?
A
Q
that there was a counter offer in
Yes.
Just so that we are clear
Q
A
property.
property for sale.
Q How was it that
Neidlinger?
A
in this matter was whom?
A The agent was Bill Myers.
Who was Pete?
Pete was representing Mr.
I believe he was the
on one point, sir, your
Dick in the sale of the
listing agent who listed the
you became involved with Mr.
Were you the person that chose Mr. Neidlinger?
No. He was -- from what I understand, he was
already chosen to do the survey of the property. It may have
been the listing agency that asked him to perform the work, I
don't know.
(Plaintiff's Exhibit No. 2 marked for
identification.)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BY MR.
Can
ROBINSON:
Q Mr. Herman, I am presenting you with a document.
you tell me what that document contains?
THE COURT: Is this Exhibit 2?
MR. ROBINSON: Yes, Your Honor, Plaintiff's Exhibit
A
Law Offices
this case.
BY MR.
date?
THE COURT: Go ahead, sir.
Okay, it is a list of payments I made to the Turo
for the hiring of an attorney to represent me in
ROBINSON:
Q What is the total amount that has been paid to
A
To date it is $4,840 for attorney's fees.
Does that include the costs for today's trial?
No, that does not include today's costs or any
other cost following today.
Q Have we spoken about what the cost
be?
A
Q
this particular project or have you incurred any additional
debts with
A
Neidlinger,
for today would
Today, I believe it was $500 for today.
Have you expended any other funds with regards to
regard to this particular project?
I have. I will have a bill coming from Mr.
because of the work that he had done prior, and it
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is not complete,
that to be over $3,000 for that.
have expended other money.
Whether or not I have
yes.
Q Are you at this
of the contract?
A Yes, I just
stock certificates that
order to sell them.
for
and I have not received that yet. I expect
I can't say whether or not I
lost money in the process,
time prepared to complete your side
need a few weeks in order to obtain
I have and to give them to a broker in
MR. ROBINSON: Those are all the questions
this witness.
THE COURT: Cross.
I have
BY MR. MILLER:
Q Mr. Herman,
CROSS-EXAMINATION
I am going to refer you to this exhibit
that is posted here,
Dick, Lower Frankford Township, Cun~erland County,
2001, have you seen this document before?
A Can I get up to look at it?
THE COURT: Yes.
A Actually, I haven't seen that exact document;
it does show the layout of the subdivision that I wanted.
also shows Mr.
and it is entitled sketch plan for Paul
PA, June 28,
Dick's property showing a
but
It
ten acre division for
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
that. So I
am familiar with basically the overall sketch.
THE COURT: Are you going to have this marked?
MR. MILLER: I do want to have it marked. I don't
think he can substantiate what this is. Mr. Neidlinger is
actually here in the courtroom today.
THE COURT: Are you going to ask questions?
MR. MILLER: I do, and I would like to have it
marked.
THE COURT:
have it admitted later,
MR. MILLER:
Go ahead and have it marked and we can
so that you can ask the questions.
Ail right.
(Defendant's Exhibit No. 1 marked for
identification.)
BY MR. MILLER:
Q The sketch plan that we now have marked as D-l, you
agree this accurately describes or close enough describes the
the property that is the subject of the agreement
boundaries of
of sale?
A
Q
Yes, I believe it does.
I am referring to the upper left-hand corner on the
left-hand side of this exhibit marked as D-i, and the dark blue
line, is it your understanding that that approximates the
boundary of the property?
A I would believe so.
Q I believe you had mentioned the house and barn
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
where Mr. Dick was living or using~, are those buildings
referenced at the top portion of the property?
A From what I can tell, yes.
Q The mobile home that you had referenced that was
being rented out, is that identified in the lower portion of
the property?
A Yes.
Q Jumping over to the righ't-hand side, the upper
portion of the property, it looks like it is identified by two
different parcels, parcel A on the left and parcel B on the
right, is that correct?
A
plan is marked into two separate lots,
the right, is that correct?
I can't see it from here.
The upper portion of the property on the sketch
A on the left and B on
A
that?
A
Q
correct?
A
Q
it, but there
correct?
Right.
A, there is a designation of ten acres underneath
Correct.
B, there is a designation of 7 acres plus or minus,
Yes.
I think you mentioned it when you were looking at
is no parcel D that is referenced on here,
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
ten acres,
Q
A
the property you were buying?
I was buying everything except portion A, which
which is referenced within the contract.
Correct.
What was your understanding as to what portion of
Was that your understanding when you had initially
gone out to the property or --
is
Yes.
So your understanding has always been that what
that you were not
A
represented by parcel A is the only piece
buying?
A
Q So
with either Mr.
Correct.
it is not true that you had any conversations
Dick or with his power of attorney, his son,
wherein they indicated that they wanted the entire upper
portion of the property, which is represented by A and B?
A I went according to the contract, according to what
was said. The contract stipulates ten acres.
Q I guess I am not asking you what is in the
contract, but I believe you testified that before the contract
was signed, you had gone out to the property at least on one
occasion and had walked around the property?
A
Correct.
Who was with you on that occasion?
The initial walk was with Mr. Myers and
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Mr.
Kafkalas.
Pete Kafkalas.
Yes.
So you had both your agent and the listing agent
with you on that?
A Yes. The listing agent was the one that really
knew the property boundaries.
Q During that initial walk through, isn't it true
that he indicated the upper portion of the property was going
to be retained by the seller?
A No, just the portion of the house and the barn,
approximately ten acres.
Q But it is true on the property, is it not, that
there is a fence that I believe the lower portion of which is
marked underneath the boundary for A but that actually extends
through the woods that are referenced on parcel B and extends
around the property, isn't that correct?
A I have no idea if it extends around the property.
I didn't walk the acreage that was with the house and the barn
and that has nothing to do with it.. As far as I am concerned,
ten acres is ten acres, the fence oan stay where it is.
Q
is marked as the lower line
A If you say so.
Q
The fence as it is indicated on here is below what
of A and B, isn't that correct?
I guess, if you could .kook at the plan and tell me
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
what you think it says on there.
A According to what I see on that sketch, the fence
would be on the acreage that I would be purchasing.
Q Was it your understanding either initially or after
the contract was signed that that fence would be on your side
of the line or on the Dick side of the line?
It would be on my side.
How many times, do you recall, were you at the
A
property?
A
where
surveyor?
A
Q
Approximately six altogether, sometimes alone.
Q Do you recall having a meeting at the property
Paul Dick and his son were present, as well as the
Correct.
Do you recall during that conversation that the
Dicks had told you that they wanted the line below the fence?
A No, they did not. What was said to me by I believe
a third individual, other than Richard or Paul, there was
another individual there and I don"t know his name, he said
they would -- other than the ten acres, they would still like
access to a small stream that was in the back portion of the
property,
Q
right-hand side of the --
A I guess it would be,
which would have been section B I believe.
That stream, is that referenced over on the
ye s.
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q You would acknowledge that there are woodlands that
go across the lower portion of that area?
A Yes, there is.
Q Is there fencing that continues through that
woodland area over towards the stream?
A I didn't go into the woods that far to see whether
or not the fencing continues or the condition of the fencing,
if there is any.
Q Okay, fair enough. Let me get back to parcel A and
the designation of ten acres. Do you remen~er the first time
that ten acres was mentioned to you?
A I can't be exact, no, it has been over 2 years.
Q Was it referred to you as ten acres or
approximately ten acres or what was the initial reference that
you --
A The initial reference was that Mr. Dick wanted to
retain ten acres of property so that he could retain his house
and his barn.
Q Do you recall who told you that?
A Other than it being listed in here, I believe my
selling agent had also mentioned it.
Q In the initial offer that you had made, was there
any reference to the mobile home that is listed at the bottom
of the property sketch?
A
What do you mean by reference? I knew it was
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
there.
Q
to know is
document
property,
document?
A
Q Correct, I think you testified to that.
A And I knew according to the contract that it
stipulates that it stayed there and that they remain there.
I knew it was there from the very beginning.
I think you are jumping ahead of me.
in the initial offer that was submitted, the
that you would have signed offering to buy the
was there any reference to the mobile home in that
What I want
So
It was signed as such, so it was written on the
paper prior to my looking at the contract and signing.
Q Let me be more precise even, that paragraph on the
bottom of page 1, was that part of your initial offer or was
that added in subsequent to your initial offer?
No, that was part of the initial offer, I knew it
and I agreed to any and all terms that Mr. Dick had
A
was there,
required.
Q
In looking at the bottom of page 1, I guess I am
comparing the bottom paragraph that references the mobile home
and the paragraph above that that is handwritten that
references the subdivision of the barn and the house, those two
appear to me to be different handwriting. Do you have any
insight as to who put those paragraphs on the agreement?
A I believe Mr. Myers put everything on that.
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Do
property where Mr.
me if I am wrong,
the barn?
A
A
Q
wanting to
you recall during your conversation at the
Dick and his son. were with you, and correct
that conversatior~ took place at the house and
Correct.
At the property?
Correct.
Do you recall them saying anything to you about
retain the mobile home and keep the rent that was
being paid by the occupants of that. mobile home?
A No, sir.
Q So if I told you it was their understanding
according to the contract that they were keeping the mobile
home in the area surrounding that from what was being sold,
would that be a surprise to you?
A That would be a surprise,
paper right at the very bottom, buyer agrees to continue
rental agreement with owners of mobile home on
current land
property.
Q
because it states on the
But the current land rental agreement, correct me
if I am wrong, specifies that the rent would be paid to the
Dicks, isn't that correct?
A That is not what the ingression was given.
Q So it was your impression that that mobile home was
being conveyed to you?
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Correct. Not so much the mobile home, but the
people would be able to use the current land. Whether or not
the mobile home actually goes with the property, I have no
idea. As far as I am concerned, the mobile home was theirs.
Q The mobile home was whose?
A The people who were renting the property or leasing
the property.
Q Have you ever seen a written lease agreement?
A No, sir.
Q I believe you testified that the property that you
were buying when you signed this agreement was undetermined,
that there needed to be a survey done to specify the bounds of
what was being sold, is that correct?
Yes, because the ten acres would have to be
A
surveyed.
Q
ten acres,
A
Q
ten acres,
A
Q
listing agent,
to be?
A
It is fair to say that paragraph says approximately
is that correct?
Yes, it does.
So approximately doesn't necessarily mean exactly
am I correct?
You are correct.
Did you have any direct conversations with the
I think Pete Kafkalas is who we established that
The only conversation I basically had with Pete
2O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Kafkalas was on the first day when we looked at the properties
when he walked the property with us.
Q I believe you also testified that it was your
understanding that the initial
the seller, is that correct?
A
Q
survey costs were to be paid by
That is what I understand.
Was there anything of contract that you are aware
of that specifies that the seller was supposed to pay those
subdivision costs?
A It could be, but it has been over 2 years since I
have looked at the contract and I would have to read the whole
thing to give you an answer on that.
Q You are not aware of any addendum to the contract
though that would clearly lay that out?
A I don't believe so.
Q Other than the handwritten notations on page one of
the contract, are you aware of any other handwritten additions
or paragraphs dealing either with the survey or the mobile
home?
THE COURT: You mean documents other than this
contract?
MR. MILLER: Yes, or addendums that we don't have
that would have been made a part of! the contract.
A I don't believe so.
BY MR. MILLER:
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
intent to build a
A
Q
intention?
A Yes.
Q I notice
I believe you testified also that it was your
residence on the property, is that correct?
Correct.
Do you recall telling the Dicks
that that was your
on the sketch of the subdivision plan,
again referring to the left-hand side, there is a dash box in
the middle of what is marked as parcel E, which is the main
parcel. Did that represent approximately where you anticipated
the house to be built --
A At the time, yes,
on what the architect who is
good location.
but that could change depending
drawing my plans considers to be a
Q
So that was just an approximation in --
That was my initial when I looked at it, yes.
It is just a dash dash line, so I don't think there
is anything permanent there?
A No, no perk test was done.
Q Did you have any conversation with the Dicks about
your intent to subdivide off the portion of the property you
were buying?
A At the time I don't believe I did.
Q So they were not aware that you had any intent on
subdividing?
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A I don't believe so, and the contract doesn't
stipulate that I would have to tell. them.
Q But you did tell them it was your intent to build a
house on the property?
A Yes.
Q I believe it is correct that you told them that you
planned on living there with your mother, is that correct?
A Yes.
Q Isn't it true also during that conversation with
the Dicks that you told them it wouldn't be a problem keeping
the property that they wanted to keep?
A State that again.
Q Isn't it true that during that meeting that you had
with them, at the property, that you told them it was not a
problem for them to keep the property that they wanted to keep?
A They wanted approximately the ten acres, and I said
that would not be an issue because that is not what I am
purchasing.
Q Again, your understanding was that it was ten
acres, and that was it?
A Correct.
Q Let me also ask you about these attorney's fees,
did you incur any attorney's fees prior to the litigation being
started?
THE COURT: Are any of those attorney's fees?
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BY MR. MILLER:
Q Are any of these attorney fees?
A No.
Q So it is fair to say that Plaintiff's Exhibit 2
represents the fees that you incurred as part of this
litigation?
A Correct.
Q None of these fees include deed preparation or
review of survey or anything else associated with the agreement
of sale?
A At the time, no, I don't believe so. If any of the
fees were paid, they would have went through my real estate
agent, it might have been part of the contract, I am not sure,
I can't say for sure.
Q So you don't remember if you had paid any fees --
A I just paid whatever the bill is.
Q Just so I am clear, you testified that you expect a
bill from the surveyor from work that was done?
A I expect to get billed from him, yes, for the work
that I asked him to do, regardless of whether I get the
property or not.
Q But you have not paid that bill yet, is that
correct?
A No, sir.
Q What other out of pocket costs do you have?
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
about,
Q
deposit,
A
Q
A
A
I would say it is not a
The agreement does
is that correct?
Whatever it says.
Excepting for transportation,
concern.
reference
which I don't care
that you paid a $2500
Has that been returned to you or is that still --
Nothing has been returned to me.
MR. MILLER:
THE COURT:
MR.
No further questions.
Any redirect?
ROBINSON: One or two questions,
Your Honor.
REDIRECT EXAMINATION
BY MR. ROBINSON:
Q The paragraph 5D of the contract that you have
there, can you read the very last line on it for me, it
concerns the acreage of the subdivision?
A You said 5D.
Q Section 5D.
A It says: Since subdivision is incomplete, offer is
$2571.43 per acre and final price will be based on number of
acres times -- it would be $2,571.43. Only subdivision will be
approximately ten acres and containing house and barn, per
seller's request.
Q In section 2 where it states how much you are
actually purchasing, what does that say?
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Road,
document
3.
A Section two it
70 plus or minus.
MR. ROBINSON:
that I would like to have marked Piaintiff's
says: 70 plus acres of 671 Old Mill
Your Honor, I have one other
Exhibit
(Plaintiff's Exhibit 3 marked for identification.)
BY MR. ROBINSON:
Q Mr. Herman, what I just presented you is a document
entitled statement of estimated cost, have you ever seen that
document before?
A Yes, I believe I have.
Q You have, okay. Can you tell me what I believe it
is line 17 states?
A It says survey and subdivision plan estimated.
Q Is there a cost listed there?
A $5,000.
Q Who is that document signed by?
signed it.
MR. MILLER:
THE COURT:
Objection,, he can't testify as to who
He can read what the signature is.
Whether it is signed by the person,. I agree. He can read what
the signature is.
BY MR. ROBINSON:
Q Can you read the signa~ure on the document for me
please?
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
seller, Paul, I think it
witness is P. N. Kafkalas.
MR. ROBINSON:
THE COURT:
I believe it is -- there is a witness and then the
is E. Dick is the seller, and the
That is all I have.
Any cross?
No, Your Honor.
Sir, you may step down.
Next witness.
Your Honor,
MR. MILLER:
THE COURT:
ten minute break.
(Recess.)
THE COURT:
MR. ROBINSON:
Pete Kafkalas to the stand.
Let's take a
I would like to call
BY MR.
PETER N. KAFKALAS,
having been duly sworn, testified as
DIRECT EXAMINATION
ROBINSON:
follows:
Q
you tell me what your initial
Sir, state your name for the Court?
Peter N. Kafkalas.
Spell your last name?
K-A-F-K-A-L-A-S.
Mr. Kafkalas, what is it that you do for a living?
Real estate agent.
In the case that we have been discussing today, can
role was?
27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A I was the listing agent
the sale of his property.
Q
property?
representing Mr. Dick in
How did you become the listing agent for this
A Mr. Dick walked into the office one day and I was
on duty and he talked about wanting to sell the property, and
that is the way we started working together.
Q How did he get to your office?
A He drove.
Q In the course of the first meeting, obviously, he
would have had to describe the property to you, did you visit
the property with Mr. Dick?
A Yes.
Q You walked the property with him?
A Yes. He drove. I met him there, and he showed me
the general boundaries of what he had in mind to sell.
Q How did you understand what it was that he had to
sell, can you describe the property generally?
A Using the exhibit?
Q If you like.
A Okay. My understanding of the sale was that
Mr. Dick wanted to keep the lower portion with the barn, the
house, and actually portions A and B I understood were most of
what he wanted to keep. There might have been some question
about the far end of parcel B. But generally, the fence line,
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
he wanted to keep below,
the fence line.
Q
A
Q
and he wanted to sell everything above
How was that described to you?
Sorry?
How was that described to you,
the part that he
wanted to keep?
A Just that he wanted to protect the house and barn
and that lower portion for his son so that he had a place to
live. The mobile home would be sold, but he just wanted to
protect the people that were renting there now, and so he
didn't want the new owner to throw them out. So he said, I
would prefer that we put in the agreement at some point in time
that they be protected by the perspective new owner maintaining
the lease indefinitely until they cancelled.
Q At that time did you complete any documents, did
you have any documents signed by Mr. Dick to officially make
you the agent?
A Not on that particular day, but subsequent to that
visit to the property we did write out a listing agreement and
Mr. Dick took that listing agreement and he said I won't sign
anything until my lawyer reviews it and that is what we did.
Q So he took the listing agreement unsigned away from
the office?
A Yes.
Q Your impression was that he wanted to show it to
29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
his lawyer,
A
where we
Q
you?
A
did he mention who the lawyer was?
Yes, I understood it to be Mr. Irwin, and that is
left it.
How long was it before the contract was returned to
I recall something 30 to
45 days, it was a long
period of time. In fact, I was actually surprised that
Mr. Dick came back, because I thought with that long of time he
probably changed his mind, but he did show up one day with it.
Q Are there any amounts listed in the contract? What
were the parts of the listing agreement?
A The commission, the length of the contract and any
terms and conditions. Frankly, I can't remember the listing
agreement as to whether we wrote those protective mechanisms
into the listing agreement, but he certainly made them clear.
Should a subsequent -- I think those contingencies were listed
in the multilist to make it clear to everybody.
Q Was there any discussion about the asking price on
the property?
A Yes.
Q can you tell us about that?
A The day that we signed the listing agreement, he
had a gentleman by the name of Jeff Scott with him. Mr. Scott
said, Look, every now and then I accompany Paul just to help
him out. So we discussed the asking price. Mr. Dick wanted to
30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
initially list the price at $325,000 for the 70 acres plus or
minus without the barn and everything else. I said that is too
much, no one will ever really look at it. So we went back and
forth and finally agreed that, look, let's go with the county
tax assessment value for the property, which was about $3700 an
acre. I said that would probably bring us -- so I think the
listing price was 250,000, 260.
THE COURT: Sorry, I lost those figures. The
assessed value per acre was 30 --
A The assessed value according to the county was
about 37, $3800 an acre, and so that is what we use as a
general guideline for the listing price.
THE COURT: The listing price turned out to be
what, if you know?
A I don't recall the exaot figure, but I think it was
somewhere around 250 or 260, because we subtracted the barn and
the value of the barn and what the county said, plus the
acreage with the barn from the total.
The only thing I recall very specifically telling
Mr. Dick though is that, look, even listing the property at 250
or 260 was much too high and that he would be lucky to get
2,000 for the property given what ]_and was going for out there
at the time.
BY MR. ROBINSON:
Q Roughly per acre, what was land going for out there
31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
at that time?
A Roughly 2,000 an acre, roughly, you know.
Q Your conversations and negotiations were with
Mr. Dick himself?
A Yes.
Q Was anybody else actually helping in the
negotiations themselves?
A Are you now on the listing agreement or into the
contract?
Q Well, either, but listing agreement was my primary
A No, Mr. Scott kind of observed, it was more or less
between Mr. Dick and myself.
Q In the pleadings prior to our trial here, there was
mention that Mr. Dick might not have been knowing what it was
he was signing or capable of understanding what it was that he
was doing when he signed these contracts. How did you find
Mr. Dick in the course of the negotiations through your
conversations with him?
A He seemed to know what he wanted to do. When he
listed the property, he had certain things he wanted to do.
When we walked the property, he knew the boundary lines. So
from my standpoint, at least through the listing agreement and
walking with him and talking with him, he seemed to know what
he was doing and I didn't get any indication that there was
32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
anything amiss or
sometimes
Mr. Dick.
Q
confused. Mr.
and tell stories, but
Mr. Kafkalas,
Dick would like to stray
I just took that to be
what I am handing you now is marked
Plaintiff's Exhibit 1.
A Okay.
Q Have you seen that
land before?
A
Q
itself?
agreement for sale, the vacant
Yes.
What if any input did you have to that contract
A Well, once we got the offer, I asked Mr. Dick to
come into the office and we went over the initial offer. We
went over what -- all the details. Based on the initial offer
we wrote in to continue to agree wJth Mr. Dick's desire to
protect the mobile home renters is -- that the buyer agrees to
continue current land rental with the owners. In other words,
Mr. Herman was supposed to allow them to stay there and pay
rent; but because he was owner of the property, he was supposed
to get the rent. We also agreed that the price --
THE COURT: Who was to get the rent?
A
the rent.
A
The new owner of the property was supposed to get
THE COURT: Okay.
The only desire Mr. Dick had was that they were not
33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
going to be thrown out with the new' owner.
We then talked about the price, and I said, I think
you probably ought to counter, I don't think you ought to
accept the initial price.
verbally until you get a
counter was $200,000.
BY MR. ROBINSON:
Q
A
Q
A
Q
A
about that.
It is my practice to do things
final contract price. I believe our
Backing up, what was the initial offer?
The initial offer was ]_68.
The counter was for?
We went back to 200.
What happened then?
They came back with 180. Mr. Dick and I talked
I said, you know, that is really not a bad price
going in. I would like to get a lJ_ttle bit more, but I am not
sure that given the value of the land it's got to appraise, 180
is a good figure, it would cover your costs and then some, so
we agreed to that.
Q Mr. Dick was in agreement to that amount?
A Yes.
Q Did you ever walk the property with Mr. Dick and
Mr. Neidlinger?
A I walked the property with Mr. Dick. I recall
meeting Mr. Neidlinger out there at one time. I didn't walk
the entire property with him, we just talked about the fence
34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
line I believe. But those are the only two occasions.
Q After the contract was signed by both parties, what
happened to the contract itself?
A It is my practice to ask whether the client wants a
copy or whether he just wants us to keep it in the office.
can't recall whether Mr. Dick took a copy or not, but that is
my practice to ask him.
Q Were you involved with any of the subdivision work
that had been planned according to the terms of the contract?
A No, not really. I had some conversations with Mr.
Neidlinger over the phone, but generally speaking, I was not.
The reason being is that work had started but by the time --
eventually, Mr. Neidlinger said, Look, I need for you to go in
and get a permit, so I had to call Mr. Dick and say if it is
time to begin spending some money on the subdivision plan, I
need $700, we need to go get a permit. That conversation is
the day that Mr. Dick said, I am w~ry unhappy, and hung up the
phone and that is basically it.
Q Backing up a little bit, did you contact Mr.
Neidlinger?
A I did not, no. Mr.
surprised -- a day or two after
said I understand Mr.
he heard that from Mr.
Mr. Dick's lawyer.
Neidlinger learned by
the contract,
Dick, and I said, okay.
Irwin, who at the time
-- I was
contacted me and
And I understood
I thought was
35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
Q Mr. Kafkalas, I am goiu. g to present to you what is
marked as Plaintiff's Exhibit 3, a statement of estimated
seller's costs, have you seen that document before?
Yes.
Who completed that document?
I did.
Can you read I believe it is line 17 to me?
Yes. Other: Survey and subdivision plan estimated
A
A
$5,OOO.
Q
A
Q
A
Q
A
Who signed that document?
Mr. Dick.
Were you present to see him sign that document?
Yes, I was.
When would that document have been signed?
That was signed at the time prior to making a final
agreement on the contract. This is done so that you can see
the estimated proceeds before he makes a final decision that
$180,000 was okay.
Q That document was signed prior to the signing of
what is marked Plaintiff's Exhibit 1,
sale?
A
Q
work would have to be done and that
him --
which is the agreement of
Yes.
Do you believe Mr.
Dic]< understood that subdivision
it would be charged to
36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q -- that he would be paying for it? In your
discussions with Mr. Dick, had you ever discussed any of the
particulars with regards to subdivision or even the fact that,
obviously, a subdivision would have to take place since it is
written into the contract?
A We discussed the fact that because he was breaking
up the property it would have to be subdivided; and because he
was making that decision, he would be responsible for at least
that subdivision part of it, yes.
Q During these discussions, did you find Mr. Dick to
understand what you were talking about?
A Yes.
MR. ROBINSON: Those are all the questions I have,
Your Honor.
THE COURT: Cross.
(Defendant's Exhibit No.
identification.)
2 marked for
BY MR.
Q
Exhibit No.
counsel,
A
CROSS-EXAMINATION
MILLER:
Let me show you what has been marked as Defendant's
2, a copy for Your Honor and a copy for opposing
can you identify this document for the Court?
Yes, it is the copy of the listing agreement.
37
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Would this be the listing agreement that you had
referenced earlier in your testimony?
A Yes, it is.
Q Can you identify for the Court what the listed
price on that agreement was?
250,000.
How is the property described in that listing?
I don't know if we...
COURT: Give him a hint where it is.
A
Q
A
THE
BY MR. MILLER:
Q I
am looking still under paragraph 1.
A Okay, 671 Old Mill Road, Newville, with the parcel
number, so it was the entire farm, yes.
Q Is there any indication in this listing agreement
or addendum to this listing agreement that would reflect what
exactly Mr. Dick intended to keep from that property?
A Not in that listing agreement. Subsequent to that
it would be in the multilist because it had to be for
perspective purchasers to know what Mr. Dick was looking for.
Q But there is nothing in this document that says --
A No.
Q -- one way or the other?
A No.
Q I believe you testified you and Mr. Dick had walked
the property?
38
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q I think you had this backwards, but during that
conversation Mr. Dick indicated that he wanted the property
above the fence line to be retained by him, isn't that correct?
A My understanding was, yes, pretty much where the
fence line that separates E from A and B was kind of a dividing
line. We had a problem trying to get down and really for me to
understand parcel B as it is on this exhibit; but generally
speaking, yes, the fence line was kind of the line of
demarcation.
Q What kind of condition exists over from the fence
line going across?
A Are you talking --
Q In other words, what is on the property --
A It is pretty much wetlands, it is not really good
for anything, so it would be protective one way or the other,
but that is about all I remember. It was further back, and I
had a tough time trying to figure ()ut the size of it, because I
didn't know the width of the property.
We didn't really explore A and B. We only went
from the fence line, because that is where he wanted to sell,
up into where that exhibit shows parcel E.
Q Did he tell you why he wanted to use the fence line
as a dividing line?
A I don't recall. I think I understood it to be it
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
was just part of what he wanted to go with the house and barn.
Q Is it fair too also there is a tree line that
extends along the property --
A Yes.
Q --or along the line with A and B?
A Yes.
Q It looks from the sketch line that the fence line
is on the other side of the trees, in other words, the trees
would be back behind the fence line going up towards --
A For the most part, yes..
house --
A
for the most part
BY MR. MILLER:
THE COURT:
Going up towards what? The barn and
MR. MILLER:
THE COURT: -- is
MR. MILLER: Yes.
THE COURT: Is that
Yes, that the trees
of the fence.
The northern part of the property.
that what you are saying?
your understanding?
are on the house and barn side
Q Did Mr. Dick say anything in addition about the
stream that is on the eastern boundary of the property?
A We talked about the stream, but I cannot recall
that there was any attachment to it, other than just keeping it
as part of the house and barn.
Q I guess my question, my primary question then is
4O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
where did this ten acres designation come from?
A Well, it was, obviously, pretty bad eye
calibration, because I didn't know what the width of the
property was, I thought it was thinner. A and B, if I can
point this out, I didn't know how far this went over, so as I
was looking at ten acres, I was thinking it was this way, so
the plus or minus ten acres was supposed to be A and B. It
turned out later that the ten acres was a little
underestimated; but that is the way I understood it and I think
that is the way Mr. Dick understood it.
Q How would you have comr~unicated the ten acres,
would that have been on the multilist?
A Yes.
Q Would that have been what Mr. Myers was operating
under or would you have had a separate conversation with him?
A No, that was to all perspective agents and buyers,
so it was in the multilist.
(Defendant's Exhibit No. 3 marked for
identification.)
BY MR. MILLER:
Q Let me show you what has been marked as Defendant's
Exhibit 3. A copy for Your Honor and opposing counsel. Can
you identify this document for the Court?
A Yes, this is the statement of estimated seller's
costs made at the time that we listed the property so that he
41
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
could get an
from the
at the
Q
idea if it went full price what he would receive
sale.
So this document would have been prepared or signed
same time
A
Q
A
as the listing agreement was signed?
Yes.
And this reflects a sale price of 250,0007
Yes.
THE COURT: This is a different exhibit than
Plaintiff's 3?
MR. MILLER:
THE COURT:
before?
A
at the time
Correct.
What was that, you identified that
Plaintiff's Exhibit 3 was the seller's cost sheet
of the sale giving him the exact price.
THE COURT: At the sale.
A This is the listing that is estimated based on if
he were to get full price.
BY MR. MILLER:
Q I believe you testified sort of to the chronology
as to your meetings with Mr. Dick, I want to make clear, when
you prepared this initial estimated sheet, it was still your
understanding that that was not going to be for the entire
property but only for the property below what Mr. Dick intended
to sell?
A Correct.
42
1
2
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q I guess my follow up question then: Why the
difference between 250,000 and ultimately what was
approximately 180,0007
A Because the listing price was unrealistic, but it
was what the seller wanted to list the price at. We as agents
have to make a decision whether we want to mark the property at
that price and see if it sells.
We agreed to list it at that price but I told him,
again, if you get somewhere around 200,000, because it is not
going to appraise at 250,000, but he wanted that, so I made a
decision to go ahead and list it at that.
Q What was the time frame between the listing of the
property and the initial offer, do you recall?
A Just looking at the documents, it wasn't very long
We signed the listing agreement on the 22nd and the initial
offer came in on the 5th.
BY MR.
THE COURT:
A Yes, sir.
THE COURT:
MILLER:
Q
A
property?
A
22nd of May?
Yes.
Okay.
The initial offer was June 5?
The initial written offer received was June 5.
Had you received any other offers to purchase that
I actually had a request about a week later after
43
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it was under contract and the agent said if that falls through,
let Mr. Dick know that I have a prcspective buyer that is
willing to offer 150,000.
Q I believe you testified that there was a gentleman
with Mr. Dick at one of the initial meetings?
A Yes.
Q When you received the lnitial offer on the
property, do you remember, was there anyone else with Mr. Dick
when you reviewed that with him?
A No.
Q Was there anyone with him when he signed the
agreement of sale?
A No.
Q Let me jump to the agreement of sale. Do you have
that in front of you?
A Yes.
Q It should be Plaintiff's Exhibit 1. Do you recall
if this agreement was ever provided to Mr. Irwin or did you
have any conversations with Mr. Irwin about this?
A
my memory is that
was his lawyer, I
I do not recall. The only thing that strikes me ir
at the time of conclusion, because Mr. Irwin
went back into the file to determine whether
I faxed -- there is no fax confirmation -- but to my best
recollection I may have faxed Mr. Irwin a copy after asking
Mr. Dick if he wanted one. But I can't confirm that, so I
44
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
don't know.
prior to the contract being signed?
A No. The only thing that
was not done over -- in the same day,
That is just my best recollection.
You don't recall any cenversations with Roger Irwin
I do recall is that this
it was done over night,
and my assumption is that if Mr. Dick had any questions, he
would have talked to his lawyer, but he didn't indicate that.
But it was not on the same day that we made the decision, so
this was about a two day process I believe.
Q Something that is a little curious to me, and maybe
you can clear it up. As I look through pages 1 through 4 of
the agreement of sale, and looking at the initials which appear
to be PED, which I presume would stand for Paul E. Dick, those
appear to be printed initials. Then as I look through pages 5
and 6, I guess 5, and then 6 is the signature, but the initials
on page 5 look different from the initials previously. Do you
know why that would be?
A No.
Q Is it your recollection that Mr. Dick though had
put those -- those are his initials and not someone else's?
A Yes, they are his, in other words, he signed it all
at the same time, he turned the pages over. Why one page is
different than another, I don't know.
Q When you got the initial offer, and I presume it
was Bill Myers that delivered that to you?
45
1
2
3
4
5
6
7
8
9
l0
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yes.
Q When you not the initial offer and it said ten
acres, approximately ten acres on there, did that match up with
your understanding that that was going to represent the
property at the northern part?
A Yes, that paralleled or was very similar to what
the multilist said, which is where he got that from.
Q When the initial offer came in, do you recall that
a paragraph below, was that included as part of that initial
offer on June 5?
A The paragraph below that has the printing buyer
agrees to continue current land?
Q Yes.
A No, it was not. That is my writing and that was
part of a counter to insure that the perspective buyer knew
what he had to do.
Q Again, it is your understanding that Mr. Dick's
only concern was that the people renting that mobile home would
be allowed to stay?
A Yes, that is my understanding.
Q So it is not your understanding that Mr. Dick
intended to keep the rent from the mobile home?
A It is my understanding he did not intend to keep
the rent. He just wanted to proteot them and it was going to
be part of the sale.
46
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Do you know, was there was a lease agreement with
Q
the mobile home or had you --
A I asked for a lease agreement, I don't recall if I
saw it. I am not even sure that there was one in writing at
the time. My best recollection was that there wasn't. That is
why I never got the copy of it.
Q I guess as I read that language, all that really
says though is that the buyer is going to take the property
subject to whatever lease agreement there is, is that correct?
A Yes, in other words, just like most investment
properties, he is going to absorb the renters at the current
terms that they have for an indefinite period of time until
they cease the lease and then he can do with the land what he
wanted.
Q
But if there was a lease agreement and they are
renting on a monthly basis, after a month period of time the
buyer could turn around and say --
Whatever the agreement was in place at the
the buyer was going to have to continue that
in the mobile home decided otherwise. That
was my understanding and that is what the wording was supposed
A Yes.
time of the sale,
until the renters
as you testified, was to
this language does not
it only says they stay
to mean.
Q But if Mr. Dick's intent,
keep those renters there indefinitely,
say they could stay there indefinitely,
47
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
there subject to whatever terms they are staying there now?
A Okay. Your point is well taken. So, yes.
Q If this language hadn't been in there, it would
still hold true, I mean the agreement would provide that the
buyer would take the property subject to whatever lease
agreements would be on it?
A Well, yes. Unfortunately, I am not a lawyer,
Mr. Dick and I agreed that this was the best wording that we
had at the time to protect the renters.
Q Just to be clear, the survey that we have currentl~
marked as Defendant's Exhibit No. 1, that was not started prior
to the agreement being signed, correct?
A Right.
Q This was done after the agreement was signed in
anticipation of defining the boundaries as to who was keeping
what?
A Yes, in fact,
really seen this document,
county map plot plan of what was
working off the
Q
A
Q
this is the first time I have ever
I never really saw it. We were
currently the
The tax map?
Yes.
Getting down to Mr. Dick and his state of mind, I
think you said you thought he drow~ to your office when he
first contacted you about selling 12he property. Do you know
48
1
2
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
that he drove to the property or you just assume that?
A No, but subsequent to ether meetings he drove
there. He drove to the office to meet me on several occasions,
so I know that he drove during the process. Whether he drove
on that initial meeting or Mr. Scott drove him, I do not
recall.
Q
When you would ask him direct questions as to what
he wanted to do with the price and things like that, was he
able to respond to you clearly?
A Yes.
Q Was there ever a point that you were confused with
what he was suggesting or desiring?
A No, not necessarily confused.
and forth a little bit; but that is normal
transactions, people want to understand, I want to understand,
so you go back and forth a little bit. But, no, not unclear.
Q Did he tell you that at the time he had a power of
attorney for him that was helping to manage his finances and
But we would go back
in most real estate
things?
A
Honor.
He did not, I
MR. MILLER: No further questions,
THE COURT: Any redirect?
MR. ROBINSON:
was not aware of that at any time.
Your Honor.
Just one or two questions, Your
49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REDIRECT EXAMINATION
BY MR. ROBINSON:
Q According to our plot plan, do you know what the
size of parcel B is?
A The size of parcel E is?
Q B.
A I just looked at it for the first time back there,
and it is approximately 7 acres.
Q
17 acres?
A
So the combination of parcel A and B then would be
17.
MR. ROBINSON: That is all I have,
THE COURT: Any recross?
Your Honor.
RECROSS-EXAMINATION
BY MR. MILLER:
Q As we now have the plot plan, if A and B were goinG
to be retained by Mr. Dick, how would that effect the purchase
price of what is marked as E?
A If A and B -- then he would get a little bit less,
because he would be keeping more acreage.
Q Because the agreement of
180,000, actually below it says it is
A Correct.
Q
sale, even though it says
a per acre price?
So the 180 was actually an estimate as to
50
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
approximately what you thought was going to be sold?
A Based on the 70 plus or minus, correct; but the
2500 price per acre was still a very good price in the end.
MR. MILLER: No further questions, Your Honor.
THE COURT: You are excused if you wish to be.
That means you can leave if you want to leave the courtroom.
You may stay or leave. Next witness.
MR. ROBINSON: Your Honor, I would like to call
Bill Myers to the stand.
WILLIAM R. MYERS,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. ROBINSON:
Q Sir, could you state your full name
A William R. Myers.
Q Mr. Myers, what do you do for a living?
A Real estate.
Q Can you tell me how you are involved in this
particular transaction?
A Mr. Herman called into the office while I was
duty inquiring about the land, and we made an appointment
the following day to go look at it.
Q Did you then visit the property and walk the
property with Mr. Herman?
for the Court?
on
for
51
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Yes, we did.
Who else was present then, sir?
Pete Kafkalas also showed up and pointed out the
various property lines as had been pointed out previously to
him by Mr. Dick.
Q What was your understa~ding of the arrangement that
was being made with regards to what property was being sold?
A We were looking at it from the point of the fact
that the house, barn and approximately ten acres would not be
included in the sale, and that Mr. Herman was just buying
approximately 70 plus or minus acres of land.
Q Did you have occasion during this transaction to
meet with Mr. Dick?
I did not.
Did you ever see Mr. D~ck when you were at the
On one occasion when the surveyor and Mr. Herman
and myself were there, we did see Mr. Dick and I believe his
son at the property.
Q I believe in front of you is an agreement marked
Plaintiff's Exhibit No. 1.
A Yes, sir.
Q Can you describe that document?
A This is the sales agreement that was ultimately
consummated between buyer and seller.
A
property?
A
52
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Who actually wrote up the document?
A Myself, Bill Myers.
Q With regards to the sale price, I see the initial
sale price, and it has been determined it was $168,000. How
did the negotiations for the ultimate sales price come to be?
A The 168 was the initial offer that Mr. Herman made
on the property. I can't confirm that the verbal counter offer
that came back to us was 200, it was in the 200 range and we
countered at 180,000.
Q Were there any other changes made in that counter
offer?
A Yes, Mr. Dick, obvious[Ly, decided that $500 was an
insufficient deposit and asked within 14 days that we supply an
additional $2,000. The counter came back with the verbiage at
the bottom whereby the current rental agreement on the mobile
home would continue.
Q So the $2,000 written on paragraph 3C then, was
that during the counteroffer?
A That is correct.
Q What was Mr. Herman's reaction to the counteroffer
as presented?
A We had done some analysis of other properties that
had sold and we thought that we were -- the 168 was a good
offer. We discussed whether we were going to go any further.
We talked about a little higher price, and then Mr. Herman
53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
decided on 180,000 and told me to go back and tell them that
that was his final offer.
Q Did you have contact with Mr. Neidlinger in regards
to the subdivision?
A The only time I met Mr. Neidlinger was after he was
involved in the process and he had contacted us, I guess Mr.
Herman actually, to meet at the property and walk the property
lines, figure out the placement of the house, look for where we
might do perk and probes.
Q Who was present at that particular walkthrough, was
it just the three of you?
Just the three of us, Mr. Herman, Mr. Neidlinger
A
and myself.
After that were any meetings held with regards
the subdivision plan that you attended?
A I can't tell you the date.
planned for Mr.
was there, Pete was
supposed to attend.
did not show up.
to
There was a meeting
Irwin's office where Mr. Neidlinger I believe
there, myself, Mr. Dick, and his son were
The meeting was held, Mr. Dick and his son
Q
A
transaction going to continue. I can't
that was discussed at that meeting.
MR.
Did anything take place at that meeting --
Other than general discussion of was the
think of anything else
ROBINSON: Those are all the questions I have.
54
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE COURT: Cross-examine.
BY MR. MILLER:
Q Mr.
CROSS-EXAMINATION
Myers, do you recall exactly what the multilist
said as far as what property the seller was intending to
retain?
A 70 acres plus or minus -- oh, I am sorry, retain?
Q Yes, retain, in other words --
A It didn't say it that way. It had what was for
sale was 70 acres,
approximately 80 acres,
save ten.
Q
wanted to
plus or minus. The property being
the deduction was that he wanted to
But there was nothing in the multilist that said he
keep from the fence line up or keep the current farm
or barn property or anything other than what was being sold was
plus or minus 70 acres?
A No, there was not anything else in the multilist
that said anything different.
Q When you had gotten the response back from Mr.
Kafkalas with regard to the mobile home, what was your
understanding as to the additional language that was put on to
the agreement?
A That the assumption was that that parcel was part
of the sales agreement and that the people that were living in
55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the mobile home would be allowed to stay there under the
current terms of their verbal or written lease until they would
decide they didn't want to.
Q were you aware at the time of whether there was a
written lease and had you seen that lease?
I was not aware, I had not seen anything.
you don't know what the terms currently were
A
Q So
then in place?
A
Q
I don't even know what the amount being paid was.
But it was not your understanding that Mr. Dick was
also desiring to keep that mobile home as well as the rent that
was coming from that mobile home?
A No, it was not.
Q Do you recall seeing what has been marked as
Defendant's Exhibit 1 before today?
A Yes.
Q When was the first time that you would have seen
that exhibit?
A Through Mr. Neidlinger,. but whether it was him
delivering it to my office or me picking it up somewhere, I
cannot recall.
Q What conversations, if any, did you have with Mr.
Herman once it was determined that the ten acres did not extend
all the way to the eastern boundary of the property, but that
there was actually what has been designated on the plan as a
56
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
parcel B, plus or minus 7 acres?
A I think by the time we got this document we were
all concerned about the fact that Mr. Dick had ceased
discussions with us, so that we were more concerned with the
transaction than the boundary line at this point.
Q Do you recall any conversations with your client
with regard to the fence that was designated as being below
that line?
A When we were out there with Mr. Neidlinger at the
property we talked about the fence, I have no recall of the
substance of that discussion.
MR. MILLER: No further questions.
THE COURT: Any redirect?
MR. ROBINSON: No, Your Honor.
THE COURT: Sir, you may step down, you are excused
if you wish to be. Next witness.
MR. ROBINSON: Your Honor, I wish to call Larry
Neidlinger to the stand.
BY MR.
Court?
LARRY NEIDL[NGER,
having been duly sworn, testified as
DIRECT EXAMINATION
ROBINSON:
Q
Sir, please state your name, full
follows:
name for the
57
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
and marked as Defendant's Exhibit No.
A
Larry Neidlinger, N-E-I-D-L-I-N-G-E-R.
Mr. Neidlinger, do you recognize what
17
is up there
Yes, I do.
Did you prepare Defendant's Exhibit 17
Yes, I did.
How were you contacted and by whom were you
contacted that
A
drawing, I
resulted in this particular drawing?
Well, I really wasn't contacted relative to the
was contacted to do a survey. I happened to be in
Roger Irwin's office on some other business and he told me that
Mr. Dick was going through a transaction that needed a survey
and gave me Pete's number to call, Pete Kafkalas.
Q Did you have any details concerning what the
transaction was that required the survey?
A I don't believe I had any detailed information at
that point in time until after I talked to Pete.
Q So who was it that gaw~ you the details?
A Pete gave me the details about what it is that my
services were needed for.
What were you told, what were your services needed
Q
for?
A
Well, as I understood it, Mr. Dick was selling a
portion of his farm. Of course, in order to do that, you
needed a survey in order to remove the portion that he was not
58
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
selling from the portion that he was selling for the purposes
of deed transfer.
Q What did you understand was the portion that he was
not selling?
A In general terms, what I understood is he was
desiring to retain the house and barn and approximately ten
acres.
Q With regards to Defendant's Exhibit 1, exactly what
is that, what are we looking at?
A Well, in the left-hand side of the drawing, now
this is a sketch plan, the purpose of this was, is to say, here
is the work I have done to date on this potential subdivision,
and in order to have a discussion it is important to have a
little drawing to identify where things are and what was what
relative to it. So it is not a cor~lete piece of work, it is
merely a work in progress sketch, if you will.
On the left-hand side is a drawing of the complete
property, and it shows the boundaries of the complete property,
and then identifies it into three
believe is what we put on that, I
totally.
tracts, A, B, C, and E I
can't see it from here,
Then on the right-hand side is a blowup of A and B
to more fully discuss the issue, the issue being is where are
the property lines to be placed for the separation.
Then below that is a separate drawing of tract C,
59
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
blowup of C. Ail of these would eventually be used in a
formalized subdivision plan that would be submitted to the
township for approval; and then, finally, if it were all done,
a deed transfer.
Q Does this entire sketch plan concern strictly the
subdivision of Mr. Dick's lot for the sale to Mr. Herman?
No, it does not.
A
A Well,
land to be sold,
What else is included, sir?
when I started the project to identify the
I met with I believe Bill Myers and the
individual buying the property, Mr. Herman, and he had
indicated that he was interested in having a separate deed for
the property of which the mobile home was sitting on. And he
wanted to know -- as anyone would have a discussion -- how do I
go about doing that in this county or this township.
I said, Well, in my mind it is just as easy to do
it as one subdivision; and therefore, I included that as part
of the project I was doing, but now I essentially had a second
client. Mr. Herman became my client in the subdividing of the
two acres where the mobile home was located.
In addition, because to do a subdivision plan you
needed to take a perk and probe to show that the land being
subdivided was capable of being built upon; and I said, you
know, if we are doing this, since we have the party that is
buying it here, let's take the perk and a probe where it would
60
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
be appropriate to put the house so it is functional for his
future need.
So we got involved in identifying a potential perk
and probe site. That was kind of for both people, because it
had to be done in order to do the subdivision for Mr. Dick.
But we put upon that Mr. Herman's desire of where he wanted a
house so it would be functional for him, so it kind of fit
both.
In addition, Mr. Hermar], because he was buying the
property, was very interested in property line boundary lines.
We were preparing and I think did some work to identify
intermediate -- usually, when you sell off a large tract of
ground or subdivide or survey, you worry about corners.
Mr. Herman was interested in, well, the corner is
here and the corner is there, but what happens between that
straight line. So we did some extra work to identify
intermediate points along the property line so he had a very
good indication when we were done where his boundary lines
actually were even in between the oorner points.
Q So was it your impression then that what is listed
here as parcel C was actually part of the tract being sold to
Mr. Herman?
A Parcel C only became parcel C because Mr. Herman
wanted to separate it from the other property he was buying.
So, yes, there was no other discussion about that as far as
61
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
making it separate, it was part of what he was buying as I
told.
Q You have identified that there is parcel A, B,
and I believe E.
being sold to Mr.
A Well,
was
C
Of those, which parcels did you believe were
Herman?
all parcels on that drawing were being sold
to Mr. Herman, except for A, as my understanding, with the
caveat that where A extended into B or into E was yet to be
determined. And that was the purpose of the sketch plan to say
here are the physical features we found by survey, now where do
the parties desire the final line for deed purposes to be.
Q Okay. So the lines between A and B and the line
between A and E could move; but other than that, the rest of it
you believed was being sold to Mr. Herman?
A Absolutely.
Q Was there any discussion with regards to the fence?
A The only discussion with regard to the fence I
believe occurred with Mr. Herman. I did not draw the line on
the fence, the fence was never giw~n to me as a criteria for
subdivision or development, subdiw[sion of the property.
What we were trying to obtain is adequate room
around the~dwelling to be feasible for an occupant to live
there. The other concern I had that never actually got
discussed is what property would be required if the township
desired to investigate the sewage disposal for what would be
62
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
residual tract or the house and barn.
In other words, in many townships, I think back
then even, they would want a sewage: enforcement officer to
ensure that if you sold off all this other property that you
had adequate space, a suitable site for sewage disposal. We
never actually got to that part of the issue of resolving that.
But all I did, the lines I actually drew on there
had to do with reasonable space around the home, no criteria,
other than that, other than the ten acres and including the
house and barn were given.
In all due respect to everyone, A and B parcels in
there are extremely difficult pieces of ground to estimate how
many acres are there. Now, possibly a farmer would, but it is
a lot of marsh land and woods and trees grown up all over the
place. So to say this is ten acres by someone even
knowledgeable in real estate, I think it was an impossibility;
and that is why I was employed, is to help define that.
Q In your entire process had you met or had any
discussions with Mr. Dick?
A On one occasion I was out on the property and -- I
drove in the driveway of where the house and barn was located
and Mr. Paul Dick was there. I went up to him and introduced
myself to him and kind of explained to him what I was doing and
why I was there and why my people were there and that kind of
stuff.
63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
A
discussion,
okay. In other words,
What was his reaction?
His reaction is, was basically, okay, no other
no actual engagement of any type other than saying,
I got a fair enough opinion that it was
okay for me to be there and be working, that was about it,
did I ask anything other than that at that point either.
Q
with Mr.
A
nor
During this process, did you have any discussions
Dick's son, Richard Dick?
Yes, Richard or another individual I believed to be
an associate farmhand or employee or friend I believe were on a
tractor or working around a piece of equipment between the
house and the barn. I went up and approached them and
introduced myself again and said what I was doing and that I
was following through on the survey.
Q Who was making those decisions that had been made
concerning the subdivision plan, the project as a whole, or the
sketch plan that we are looking at?
A Well, I made the decisions -- I ran into a problem
with trying to finalize this to get the decision as to where
somebody wanted these lines.
talked with Bill about it.
so I said, A solution is,
I talked with Pete about it, I
I talked with Roger about it. And
let me make up a sketch plan and we
will all sit down and I will show as many features as I think
is reasonable anyway and we will see if we can't get a decision
and I will follow through and finish it.
64
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
to get to a
mind.
Now, that was my decision based upon logic of how
closure of what ten acres plus or minus was in my
The other information given about this at the
beginning came from Pete. Plus
property, here is the -- then I
courthouse, of course, as
consisted of.
As
Roger and said,
or minus ten acres, survey the
got everything out of the
to what the property actually
I couldn't resolve exactly what it is, I went to
Hey, the only logioal solution is get everybody
in here, and I will make up the
and somebody draw up the lines.
Q
A
Mr. Dick.
sketch plan and let's sit down
Did that meeting ever 'zake place?
Sort of. Everybody came to the meeting, except
We were sitting there and -- that is the first time
those drawings were actually shown to anyone, because I made
them up for that meeting.
I took my notes and ewerything we had acquired out
in the field and came up with that drawing. That is the first
time it was displayed and it was made as sort of a decision
making tool so everybody could visualize what it is they were
trying to accomplish.
But Mr. Dick did not show up at that meeting, and
the meeting -- it was kind of said,, well, let's see what
happens from there and I packed up and went home.
65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
In this process, who was your client, who were you
working for?
A I was working for Mr. Dick at the beginning, and
then as I
Well, again, I was trying to resolve the matter as
got involved with the buyer, then Mr. Herman became a
client as well.
Q Was the work for the buyer contingent upon the work
for Mr. Dick being completed?
A Well, I obviously believed that. It wasn't in
writing or anything else, I mean, ~[oing something for someone
who didn't own any property would not be too beneficial to
anyone.
Q Was Mr. Dick ever submitted any invoices or bills
for the work that you did?
A Yes.
Q Were those invoices paid?
A No.
Q In the course of trying to contact Mr. Dick about
this project, did you ever speak to his son, Richard, who I
believe had the power of attorney at the time?
A I spoke with Richard I believe on two occasions. I
spoke with him once at the property that we just discussed a
few moments ago, and then I beliew~ I called him one other
time.
Q Can you tell us about that conversation?
A
66
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
to where the property line was.
is he had nothing to do with it,
subdivision, his father's process,
with him.
Q So you were of the
about this would be made by Mr.
property lines go?
A Yes.
MR. ROBINSON: Those are all the
THE COURT: I am going to take a
you may step down. We will reconvene at ten of.
(Recess.)
THE COURT: Cross-examination.
The indication I got from him
that this was his father's
and that I needed to speak
impression that all decisions
Paul Dick as far as the
questions I have.
ten minute break,
BY MR.
Q
marked as
CROSS-EXAMINATION
MILLER:
Mr. Neidlinger, in looking at the plan that we have
Defendant's Exhibit 1, you have the fence line marked
along here. Looking at the plan, it looks like the fence line
ends right there. Did it end there or does it continue up and
we just didn't worry about adding in additional fence?
A I believe it ends there, but I am not -- that
new fence or a relatively new fence and I don't honestly
totally know;
I would have
is a
but I would have thought if it went on somewhere
shown it.
67
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Do you recall in your conversations, I guess it
would be with Richard Dick, Paul Dick's son, him saying that he
wanted the line below that fence?
A No, the only issues that came
up on that day with
Richard, and more directly the second individual that was with
him, is an interest in the stream on the far east end of that
section B or that parcel B.
Q What do you recall the conversation concerning the
stream to be about?
A If they had cattle there, they wanted access to
water, which is a stream that may be, I am not even sure, I
don't believe the actual water portion of the stream is on the
Dick property, but that is what they were referring to is for
access for animals.
Q It looks like you kind of have it outside of the
lines, but it is along that eastern --
That is correct.
-- eastern border anyway?
A
Again, I will state, this section of the property
is in low lands and marsh lands and defining fence row or
defining tree line on that portion,, the northern portion, is
very, very difficult.
Q Do you recall having any conversations with Mr.
Herman about the tree line and the fence line and where that
lower line was supposed to be?
68
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
at least be in the tree line so that he had a visual buffer
that he controlled. That was his wishes or -- in discussion.
Q Do you recall when that discussion took place?
A Well, that discussion took place the day that we
were riding around in my pickup truck and we met with Mr. --
we saw Mr. Dick in the farmhouse area.
Q Your conversation, initial conversation with Mr.
Kafkalas didn't involve any conversation as to what Mr.
Herman!s
A
Mr. Herman's interests were that the property line
desire was though, did it?
Absolutely not. He wasn't
or
-- the only issue was,
and the house and barn
is defining the ten plus or minus acres,
were to be retained by Mr. Dick.
Q Did he tell you at that point that it was
Mr. Dick's desire to retain the upper portion of that property,
all the way to the stream, and that they thought that was plus
or minus ten acres?
A No, there was no definition given to me other than
plus or minus ten acres, house and barn.
Q
the lower line,
line,
now?
So that is all you had to operate on?
That is correct.
Is there any particular reason why you have the
and the side line for A where they are
A Yes.
69
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q What are those reasons?
A The reason -- the line to the east, which is the --
on that little sketch, between A and B, that is there to show
that it included the barn, just beyond the barn a little ways.
The one to the south, which is in the tree line there, it was
put there to show that there would be adequate border to the
east on the house, and then the fin. al answer was is what is ten
acres, and that is how they arrived there.
So if this line --
A Let me further say that if you move the borderline
between -- on the south of that tract, between A and E over to
the fence line, then the one on the east side would have to
come in to make ten acres, and then the barn would not be
included on that tract.
Q That was going to be my question actually to you.
So to keep that ten acres and include the buildings, that line
cannot -- or the eastern line is really what is controlling
where the southern line is on this sketch plan?
A
it, yes.
Q
over to I
property?
A
When you include the barn and a little area around
My next question is: Why did you extend the line
guess you would call that a corner point on the
Well, the issue was ten acres plus or minus, okay,
and in order to have a logical discussion, and it really was a
70
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
logical discussion with Mr. Dick, was you got to put some
definition to it somehow to figure out what to do. So I said,
hey, if you go all the way to that point back there, given the
line I already had on the southern side of A, then you extend
that line somewhat to a normal poin. t of change of ownership, I
just ran it to that point, and that made the 7 acres.
So I wasn't trying to pre-determine anything, I was
only trying to give enough parameters so that a meeting would
hopefully be fruitful and everybody had all the information
that I could provide. I put the fence on there also because it
is a feature that exists out there.
Q My follow up then, Mr. Herman wasn't requesting
that a separate lot be carved out for B?
A Absolutely not, no.
Q That was something that you had done to represent
how much acreage was located in that section?
A That is correct.
Q If this line was moved south, and I guess when I
say this line, I mean all the way from the western boundary
over to the eastern corner, if that whole line was moved down
to include the fence as part of the property that would be
retained by the seller, do you haw~ any estimate as to how much
acreage that would include?
A No, but it would be between 17 and 20 acres. A and
B is 17 roughly, we didn't totally firm up what B was, but it
71
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is roughly 7 acres.
Q It says plus or minus.
A Yes, and, of course, this isn't a finished product,
again. So if you move it down you are going to include some
more acreage. So I would say no more than probably about two
more acres. I am not sure, I didn't do enough work to know if
the fence line extended actually goes to that point on the
eastern part of B that you are referring to there.
Q I guess, just to summarize your testimony, that
would -- upwards or close to 20 acres would be included if that
whole --
A
Q
A
Q
sale?
A
That would seem reasonable --
-- line was moved down?
-- my estimate.
Double what was on the front of the agreement of
Again,
how much acreage is
is not your typical
I caution anybody to go out there and say
in that little parcel of ground because it
five acre parcel or two acre tract of
homeland.
the boundaries are.
Q I believe you testified that it was
almost impossible for anyone, even someone that
real estate,
A
It is very dlfficult to see and observe even where
difficult or
is involved in
to accurately estimate how much acreage is there?
Yeah, absolutely. I don't think I would want to
72
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
compared to
A
Q
take a bet on it, you know,
because my answer would be I
What would make
another case?
Repeat that please.
my estimate, of what was there,
will survey it and let you know.
that difficult in this case as
What would make the estimate as to how much acreage
would be in that northern section more difficult in this case
as compared to another case?
A Well, the lines are not well defined to start with,
existing property lines are not well defined; the terrain is
extremely up and down hill; and it is treed, to say it is a
wooded -- there is a lot of young growth tree stuff all over
the whole place, so it is not clear.
So the topography itself would also make
the trees, the wetlands?
Yes, all of that.
Q
difficult,
A
Q
perk and a probe.
you recall --
A That is
Q I guess,
it
I believe you also testified that you had done a
How many perks and probes did you do and do
incorrect, sir..
correct me and tell me what you did do as
far as --
A
I informed I believe it was -- I am sure it was
Pete, that part of the process of getting a subdivision plan
involves a township requirement to show that the parcel you are
73
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
taking off has adequate sewage disposal capability, and you do
that by getting a perk and a probe. Sometimes I said, because
I had not gone to Lower Frankford Township and spoke with them
myself directly, they require an additional perk and probe for
a backup site for the house and barn area that is being --
lands being removed from it. I said, In order to do that, we
need to get on with that process.
Q You are talking now about the northern portion that
the existing house and barn might r~eed a separate perk and
probe?
A
Q
had with Mr.
That is correct.
I guess I am referring to what conversations you
Herman about what needed to be perked and probed
or what he conveyed to you?
A I spoke with Mr. Herman and said, Hey, Mr. Dick has
to get a perk and probe on this land that he is selling to you.
I always advise everybody I am trying to do business with -- is
to say, hey, it isn't going to matter to Mr. Dick where he gets
the perk or probe, as long as it is on the property that meets
the township requirement.
So, I said, Why don't we establish where you may
want to build a house and then look for a logical site from
there to get your perk and probe, to get a perk and probe from
Mr. Dick, but then, when it was all done, it would be usable
for Mr. Herman's intentions.
74
1
2
4
5
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
So many times a person selling a property or a
developer goes out and perks and probes maybe the closest to
where a backhoe can get, and it has no relevancy to how the
property may be used down the road. Here we had -- I had the
option of having both parties there and was trying to make the
most of somebody's money and we will get it and it will be done
and it will be usable. So that was my discussion.
Q As a result of that discussion, did you make any
notations on the plan or let him ku~ow a location where the perk
and probe could be done?
A There is a notation of square on there I -- and I
think that is really --
Q Is that this dotted --
A Yes, sir. But I think that is the location of a
potential house. I believe to the north of that, north, yes,
north of that area, towards that parcel B is where we had
proposed potentially to do a perk and probe.
Q Did you have any other conversations with Mr.
Herman about other subdivisions that would require a perk and
probe and that he wanted to sell off acreage for other houses
or anything?
A I believe we discussed the potential of
subdividing, you know, what else could he do with his property.
Being that he was putting his house in the far eastern portion,
there is a lot of road frontage out there, I believe, I
75
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
suggested to him, until he was more firm in what he wanted to
do, not to complicate this thing any more at this point in
time, because in that part of the country getting perks and
probes is not simple. You might spend a lot of time out there,
because there is very little top soil, very poor soil for
sewage disposal.
Q I guess then dropping to the next issue, which is
the mobile home, it is your recollection that Mr. Herman is the
one who approached you about subdividing a portion of the
property surrounding the mobile home?
A Yes, there is no question about that.
Q Did you have any conversations with him about
additional work that would need to be done, perk and probe, or
other things that might need to be done as far as that goes?
A Oh, yes. With Mr. Herman?
Q Yes.
A Yes, absolutely. Therefore, I sort of entered in
an agreement with him verbally to do work for him that would be
submitted as part of the same plan that was going in for
Mr. Dick.
Q
You never had any conw~rsations with either
Mr. Dick or his son or with Pete Kafkalas regarding Mr. Dick's
possible desire to keep that mobile home or to subdivide off
property for that?
A Absolutely not.
76
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
agreement of sale
A
Q
Okay. Do you recall if you were sent
from Mr. Kafkalas?
Absolutely not.
Have you ever seen that
or were you just
a copy of the
basically --
A Absolutely not.
Q So you were just going off what your conversation
with him was at the time?
A That is correct.
MR. MILLER: No further questions.
THE COURT: Any redirect?
MR. ROBINSON: Just a few.
REDIRECT EXAMINATION
BY MR. ROBINSON:
Q You had mentioned that some of the work that you
did do on the sketch plan here was done for Mr. Herman. Did
you ever present an invoice to Mr. Herman for the work that you
did?
A No.
Q Do you have an estimate of what the value of that
work would be, in other words --
A Let me correct my statement. I did not present one
until today.
Q What is the amount of that invoice?
77
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
waiting
guess I
Herman.
Q
Mr.
Work to date, not including interest on 2 years of
for money -- but I didn't present an invoice, so I
am not concerned about that -- it is $2700 to Mr.
27 to Mr. Herman, okay.
You did mention, and I just wanted to confirm that
Herman did speak to you about the possibilities of
subdividing the property down the road, true?
A He had talked about an interest in doing that,
except that I think I was successful in talking him out of
doing anything at this time because I felt that got too
complicated for what we were trying to do right now.
Q In testimony I heard that someone had expressed an
interest in at least part of what is listed as parcel B so that
they had access to the stream. It was further brought out that
that had to do with cattle, I believe water and cattle. Were
there any cattle on the property?
A Not that I saw, no. I checked with -- I talked to
some of the people I had out there and they said they were not
aware of any cattle out there either.
MR. ROBINSON: That is all I have.
excused.
THE COURT:
MR. MILLER:
THE COURT:
Any recross?
No, Your Honor.
Sir, you may step down and you are
Any further witnesses?
78
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. ROBINSON: Your Honor, I would like to recall
Glenn Herman for just a few questions, if I may.
THE COURT: I will allow you to do that.
GLENN HERMAN,
having been duly sworn, recalled as a witness,
testified as follows:
DIRECT EXAMINATION
BY MR. ROBINSON:
Q Mr. Herman, what were your intentions, what were
you planning on doing with the property after it had been
subdivided to 70 acres and sold to you?
A To build a house for retirement, which I am
basically in now. To also subdivide off the piece of property
with the mobile home so that it was legal, because at the time
I didn't -- it had not been subdivided, I didn't know whether
or not the township recognized it for tax purposes, and I
wanted it to be legal on that if it had not been.
Also, I was planning on putting two other houses ou
the property prior to my retirement house in order to afford
extra income for the building of my actual residence.
Q So you were planning on further subdividing the
mobile home for one or two other lots, is that true?
A Correct.
79
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
On those lots you were going to build homes and
Q
sell them for additional income?
A Yes.
Q Did you have any estimate or did you have any idea
of what you would build the houses for and then sell the houses
for?
A I had checked on the Internet a few places for what
they call pre-fab homes, which were actually built in a factory
and then sent down and put up within just a couple of days,
actually. If I could, I would have also put full basements in.
if I could, towards the
being out of my view per se
I wanted enough acreage for
Each property would be,
corners of the property, therefore,
of my house, being two acres each.
houses of approximately 3,000 square foot.
Q So those would be 3,000 square foot per house?
A Per house.
Q Pre-fab?
A Correct.
Q What would you intend or had you researched what
would be the re-sale price for those two acre lots with the
3,000 square feet homes would be?
A Going back 2 years, looking in the real estate
magazines that were back then, something like I was looking at
would have brought approximately $180 some odd thousand dollars
each. The houses themselves at the time for a pre-fab house
80
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
similar to what I wanted would be somewhere around $86,000 for
the house itself, not counting a full basement, if they had it,
and not counting the actual cost of the two acres.
The two acres at the contract price would be a cost
Q
of?
A
Q
A
Q
The contract price for the sale of the houses?
Right.
I was estimating that at $185,000 per house.
Then the profit which you intended on this would
have been roughly?
A The profit would have been approximately 90 some
odd thousand per house or per unit and that was at that time.
MR. ROBINSON: That is all I have, Your Honor.
THE COURT: Cross.
BY MR. MILLER:
Q Mr.
CROSS-EXAMINATION
Herman, I am not sure if you testified before
earlier
A
Q
A
Q
A
Q
as to this or not, but where do you currently reside?
New Jersey. I did testify at the very beginning.
How long have you lived in New Jersey?
55 years, it will be 56 in August.
Do you own any property in this area?
No. I am hoping to.
What research or what magazines would you have been
81
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
looking at in New Jersey that would tell you what houses and
land and things would be worth here?
A I didn't say I was looking in the State of New
Jersey. I said I was looking at real estate magazines, which
are obtainable in any portion of Pennsylvania. You go into any
store and usually there is a rack with magazines. Also, there
are magazines located in any real estate office.
Q Did you contact any local builders or providers
or where did you think these homes
that manufactured homes,
were going to come from?
A
every state.
state
trailers,
sections.
Q
On the Internet, the homes are built in almost
There is one at least that is located in the
of Pennsylvania. They ship the homes on flatbed
it is not an issue. They are in sections, flat
Had you contacted anyone at the township concerning
what their subdivision requirements would be, what other
requirements they would have if you wanted to subdivide or
build additional houses on the property?
A The only thing I did was there was a neighbor
across the street that I had discussed the purchase of the
property with because he had seen me looking at it. At that
time I had a discussion with him about building houses and he
said he believed that in the township you needed a minimum of
two acres for a house, and that is how I came to the conclusion
82
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
of giving two acres for each house.
Q Had you taken any additional steps to see whether
the property that you were looking to subdivide was perked and
probed in those areas or whether two acres would be sufficient?
A Due to the acts of Mr. Dick and the failure to
complete the contract, I felt no need to at that particular
time, that it would be just extra money.
Q So if I can summarize, your estimates on what you
testified your profit would be, and I guess I use profit in
quotes, you looked at some real estate magazines off the rack
of a store, is that correct?
THE COURT: You don't have to summarize, his
testimony is in. Ask direct questions.
MR. MILLER: No further questions, Your Honor.
THE COURT: Any redirect?
MR. ROBINSON: No, Your Honor.
THE COURT: Sir, you may step down.
MR. ROBINSON: Your Honor, I would like to move
that the Plaintiff's Exhibits be a¢imitted.
THE COURT: Any objection?
MR. MILLER: No, Your Honor.
THE COURT: They are all admitted.
MR. ROBINSON: And the Plaintiff rests.
THE COURT: Defense?
MR. MILLER: Your Honor, we call Mr. Paul
Dick to
83
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the stand.
PAUL E. DICK,
having been duly sworn, testified as
DIRECT EXAMINATION
BY MR. MILLER:
Q Mr. Dick, can you state
record?
A
follows:
your full name for the
Say what?
Can you state your full name for the record?
Paul E. Dick.
Where do you currently reside?
Say what?
Where do you live?
1100 Enola Road, Carlisle, PA.
How long have you lived there?
How?
How long have you lived there?
82 years.
About 82 years?
I think so.
How old are you, if I may ask?
I think I will be 85 the 10th of August.
85 on the 10th of August?
I think so.
Are you not sure what your age is?
84
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A What?
Q Are you not sure what
A What?
Q Let me ask it a different way.
of birth?
A My name?
Q Your date of birth, when were
A 10th of August 1918.
Q 19187
A Yes.
your age is?
What is your date
you born?
Q Do you remember meeting with Peter Kafkalas, the
realtor at Jack Gaughen?
A I just about half remember the face, that is all.
Q Not me, but do you remember the gentleman who
testified earlier, Mr. Kafkalas, I don't think he is here now?
A I sort of remember him.
Q Do you remember talking with him about selling the
property that is depicted on that chart?
A I remember talking to him, yes.
Q What did you talk to him about, what did you want
to do at the time?
A What?
Q What did.you want to do at the time with regard to
the property?
A With what?
85
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
him you wanted to do as
a portion?
A
Q
When you talked to the realtor, what did you tell
far as selling the property and keeping
I don't understand it.
Let me ask it a different way.
sell the property that you owned?
A Well, not really.
The property that is a'z 671
own that property?
Did you want to
Old Mill Road, do you
I think so.
Approximately how many acres is it?
About 82 or 4 acres.
82 or 84 acres?
82 acres, 84, something like that.
Did you go to Jack Gaughen and ask them or tell
A
them that you wanted to sell a portion of that property?
it, yes.
A
I went down and talked to him about
What did they tell you'?
What do you mean?
Did they give you a contract to sign?
Yes, I signed a contract.
What was that contract for?
Well, to list it, I guess.
To list the property for sale?
Part of it.
86
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
Q Do you remember walking around the property with
your realtor?
A I didn't walk around the property with him at all.
Q Do you remember telling him that you wanted to keep
a portion of the property, that you didn't want to sell the
whole thing?
A Yes, I told him I wanted to keep part of it.
Q What part did you tell him you wanted to keep?
A Well, I hadn't quite made up my mind yet.
Q Had you pointed out the fence to him?
A What?
Q Did you point out the fence to your realtor and
tell him you wanted to keep that?
A I don't know how to answer that, really.
Q Do you not remember?
A Do I what?
Q
fence?
Do you not remember telling him anything about the
A
sell the property for?
A What?
Q How much money did you want
for?
A
It wasn't pointed out that much, all.
How much did you tell !four realtor you wanted to
to sell the property
250,000, and he took care of all the expenses.
87
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
250 and he what?
He is to pay everything.
And he gets paid out of that?
Huh?
He gets paid out of that?
I get 250,000, and he ]pays all the expenses.
So it was your understanding that you were going to
receive 250,000 when the property was
A
Q
sold?
Say what?
It was your understanding that you were
going to
get paid 250,000?
A You are asking me a lot of questions, and I don't
quite understand you. I wouldn't be in this mess if I had got
some schooling. Never got going to modern --
THE COURT: Hold on. Try another question.
A I never got more than two-thirds grade school,
diploma?
diploma?
I didn't get more than
never got much school.
THE COURT: Next question.
BY MR. MILLER:
Q Do you have a high school
A Say what?
Q Do you have a high school
A I just got done telling you,
two grades through grade school.
Q Who is your attorney?
88
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Roger Irwin and Mr. Miller.
Roger Irwin is your attorney?
Roger and Mr. Miller.
You need to speak louder into the microphone so the
stenographer can hear you.
A Say what?
THE COURT: He said Roger Irwin. Next question.
BY MR. MILLER:
Q Did you have Roger Irwin look over the contract
that had been prepared?
THE COURT: What contract? The listing?
MR. MILLER: Either one.
THE COURT: Show him both.
BY MR. MILLER:
Q Do you recognize this marked as Defendant's Exhibit
2 called a listing contract?
A Say what?
Q Do you remember seeing that?
A I can't read that fine print.
Q Do you remember signing a contract to hire Mr.
Kafkalas as your realtor?
A I just don't understand the whole thing.
Q Let me ask you this question. Do you recognize
this document marked as Plaintiff's Exhibit 1 called the
agreement for sale of vacant land?
89
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
I signed something but...
Do you remember signing these documents?
I guess so, I don't know.
Do you remember talking with your realtor about
what was in these documents?
A Who?
Q Your realtor?
A No.
Q You don't remember --
A (Witness shakes head negatively.)
Q Do you remember telling him anything about the
mobile home that was
A
Q
microphone.
A
Q
A
Q
contract to you?
A No.
Q
A
Q
page?
on the property?
I told him I was keeping that.
You need to speak louder. Can
you speak into the
I told him I was keeping the mobile home.
What did he say when you told him that?
I don't know, he mustn't have answered.
Did he read over the terms that were in the
No, or you don't remember?
I just don't remember.
Are those your initials there at the bottom of that
90
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A That is my initials.
Q At the bottom of page 2,
did you initial that?
sale.
are those
A Let me see the other one.
Q Let me jump back to page
Did you initial that page?
your initials,
A
I just don't quite...
5 of the agreement of
That don't look like my initials.
What do your initials look like?
THE COURT: You are going to have to try another
question other than that.
MR. MILLER: Ail right.
BY MR. MILLER:
Q The signature that is ,on page 6 of the contract,
that your signature, about three quarters of the way down?
THE COURT: Ask him again.
BY MR. MILLER:
Q Do you understand my question? This line right
is that your signature?
I don't know. It don't exactly look like it.
Let me ask you, back on Defendant's Exhibit No.
here,
A
Q
the listing agreement, is that your signature on that line
about three-quarters of the way down, right here?
A Not sure about that, i-z doesn't look like mine.
Q Do you remember taking this document to Mr. Irwin
and asking him anything about it?
91
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
contract?
THE COURT: You are referring to the listing
MR. MILLER: No, the agreement of sale.
THE COURT: The agreement of sale. Make your
questions very short and very simple. Try another question and
point out what document to him and tell me what document you
are talking about.
BY MR. MILLER:
Q This
the agreement of sale, did you sign this at Jack Gaughen's
offices?
A
Q
A
is his signature.
BY MR. MILLER:
Q
A
Q
Exhibit 1.
A
Q
A
Q
document marked as Plaintiff's Exhibit 1 as
Where is the signature?
The signature is on the last page.
I can't see that.
THE COURT: He already told you he doesn't know it
Next question.
Have you seen this plan before?
Say what?
This plan before that is marked as Defendant's
How is that?
Have you seen this
I can't hardly see
Let me bring
sketch plan before?
it.
it closer for you. Have you seen this
92
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
plan before?
A
Q
A
Q
question.
plan.
I don't think so.
Is this the property at 671 Old Mill Road?
Yes.
How do you know that is that property?
THE COURT: Wait a minute, that is a two-part
He doesn't even know whether he has even seen the
Do you know what that is?
A Say what?
looking at?
A
you tell?
A
THE COURT: Do you know what that is, what
you are
It looks like a survey of some kind.
THE COURT: Do you know what it is a survey of,
The property on Old Mill Road.
THE COURT: Okay. Next question.
BY MR. MILLER:
Q Where on Old Mill
that is used there?
A The barn and the house,,
the barn and the house.
Road is the barn and the house
can
you drive back the lane to
lives
Who lives at the barn and the
My son lives there. There is
Q house?
A another partner who
in part of the house at the time then.
Q What is that property used for?
93
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
A
the farm.
Q
A
Q
What do you mean, the property?
Is it farmed?
Yes, make hay there,
my son makes the hay there on
What else, is there livestock?
Livestock, yes.
What kind of livestock'?
A Usually steers. He kept around 50, 60 out there
still. I think he only got a few now.
Q
But there are some there now?
Yes.
You need to say yes or no, not just
nod your head.
Any place where those trees are, like, you know,
Are there steers there now?
A Yes, now.
Q When you talked to your realtor about selling this
property, did you want to sell the whole thing or --
A No.
Q -- did you want to keep part of it?
A I was keeping part of it.
Q What part did you want to keep?
A Well, the house and the barn and all the woods and
the field up on the hill, that is all we have on it.
Q When you say all the woods, what woods are you
talking about?
A
94
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the woods there. There is trees on both sides of the farm.
The stream.
Q
A
Q
A
Q
stream?
A
Q
A
Q
A
fence up,
Q
A
Q
property?
A
Q
A
There is what?
The stream too.
You wanted to keep the stream as well?
Yes.
Was there a reason why you wanted to keep the
On account of the livestock.
Is that what the livestock used to water --
Yes.
Do you know about the fence on the property?
Well, not exactly. I know that my son put a new
up the edge of the field.
When did he put that fence up,
3, 4 years
Is there a
do you know?
ago, I don't know for sure.
fence that goes all the way around the
No, not all.
Where does the
The fence goes
fence go?
around up along the field.
Some
of
it don't have no
Q
A
around.
fence at all around.
What portion doesn't have a fence?
Where he doesn't pasture don't have no fence
95
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Where would the pasture be, in the eastern part --
It would be on the south side.
Did you talk to your realtor about the mobile home
Q
on the property?
A Well, not that much. I told him I was keeping that
and 50 feet from the road that goes back to where that mobile
home sits there.
Q So the mobile home is about 50 feet from the edge
of the property?
A Yes, I wanted that, away from the mobile home.
Q Who lives in the mobile home?
A I forget her name, some lady.
Someone lives there now though?
Yes.
Is she paying you rent'?
She pays my son.
Why does she pay your son?
Well, he is part of me, you know, he lives up there
and takes care of things.
Q
Is his power of attorney for you?
He is power of attorney.
How long has he been power of attorney for you?
I don't think it is quite a year yet, probably is,
don't know, about a year.
Q How long has he been helping you out with
96
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
collecting the rent?
those?
A
Well, even before power of attorney.
What kind of things does he help you with?
Well, whatever he can .do.
What about when you get bills, what happens to
A
He usually takes care uf the bills pretty much.
Do you have your driver's license?
Well, if you want the 'whole story, I lost them
through my neighbor.
Q I don't think we want the whole story.
your driver's license, yes or no?
drive?
A
Do you have
I don't have them now.
Was your driver's license taken away from you?
North Middleton Police, the Carlisle police.
Did your doctor tell t[he police that you couldn't
A
A
Q Your doctor,
shouldn't be driving?
Tom (inaudible), he was the instigator of it.
But did your doctor --
Who?
did your doctor tell you, you
A I don't remember my doctor's telling me anything
about driving.
THE COURT: He doesn't remember, move on.
97
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A I was
months yet --
BY MR. MILLER:
Q
A
Q
A
Q
A
Q
A
Q
A
now.
questions,
supposed to get them back and he -- about 3
Have you sold any other property recently?
Say what?
Have you sold any other property recently?
Have I done what?
Have you sold any property?
Recently?
Recently.
No.
Within 2 years?
I wouldn't know who to.
I just can't think of it
MR. MILLER:
THE COURT:
right here.
No further questions, Your Honor.
This man is going to ask you some
BY MR. ROBINSON:
Q Mr. Dick,
CROSS-EXAMINATION
have you been in the hospital for
anything in the last 2 years?
A
I have been in the hospital.
Have you?
Do you want to know why I was
in the hospital?
98
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
You were in the hospital?
Say what?
You have been in the hospital in the
Yes.
-- last two years? Yes, okay.
What type of ailments .did you have,
what were you
in the hospital for?
A Well, I got six cats up there on the farm and I --
when Dick was out driving truck I ]nad to go up every day and
feed the cats, you know, give them milk and feed them. And
there was two gray ones and two -- well, one color and two
yellow ones.
around after
And this little yellow one was always running
the dog. And one day -- the kittens would run
into the house, but I could pick it down, you know, it never
bothered me. So I let it in the house, in the kitchen, and I
went in after it and it run over in the room. It jumped up in
the thing there, the chair or whatever, and I picked it up and
it just cut my finger open. A couple days later my finger
swelled up and the rest of my fingers swelled, I couldn't
hardly bend them and they got stiff, you know, swollen all up.
THE COURT: Were you in the hospital for anything
else in the last couple years, any other problems?
A No other problems I guess.
THE COURT: Next question.
BY MR. ROBINSON:
99
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
any medicine?
A Since the police locked me up and stuff, they
locked me up, and the blood came out of two places.
THE COURT: The question is, are you taking any
medicine now that you know of?
A
day.
BY MR.
Are you on any medicine right now, are you taking
I am still taking about eight kinds of medicines a
ROBINSON:
Q Do you know what they are for?
A I don't know, two for rabies and getting all
boogered up.
Q How long ago was it that you turned back in or how
long ago did you lose your driver's license?
A
A
against me,
November I believe.
November of just last year?
Last year. Harrisburg, they don't have nothing
I got a clear record, and never no problems before,
I
I never hurt nobody driving or anyEhing, never one person.
know I drove around the world three times.
MR. ROBINSON:
THE COURT:
MR. MILLER:
THE COURT:
Those are all the questions I have,
Any other guestions?
No, Your Honor.
Sir, watch your step,
and you can go
Your Honor.
100
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
back. Next witness.
MR. MILLER:
I call Mr. Richard Dick to the stand.
RICHARD L. DICK,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MILLER:
Q Can you state your full name for the record.
A Richard L. Dick, 671 Old Mill Road, Newville.
Q The property that is referenced by Defendant's
Exhibit 1, do you recognize that property?
now?
A
Yes, I do, that is where I live.
That is the 671 Old Mill Road property?
Right.
How long have you lived there?
Approximately 10 years.
What is your current occupation?
Farmer.
How long have you been farming that property?
Probably 20 years.
What kind of farming is done on the property right
A
Just a crop farm, hay farm, mostly hay.
Are there any livestock on the property?
Yes, there is.
101
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
What kind?
Beef cattle.
Do you know how many?
Two right now.
In June of 2001 how many livestock did you have?
I am not sure of the exact date when I sold. I had
110 there, because I would buy and sell, I would move them in
and out pretty frequent.
Q So you had quite a few more there at the time, is
that fair to say?
A Yes.
Q How do you care for the livestock?
A Well, I pastured mostly and feed them chop.
Q How do you water them?
A Through the winter, mostly from the house well; but
through the summer months they can get water down in the lower
pasture.
Q Is the stream that is referenced on the eastern,
along the eastern boundary of the property, is that the stream
they use?
A Yes, it is, it cuts through the east corner of the
property.
Q What is the topography like on that property?
A Well, near B, probably three quarters of that is
sort of wetland, I use that for pasture. The remaining part of
102
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
A
there.
Q
A
myself.
Q
A
will last
Q
A
days.
it is woodlands.
Q You have seen the fence that is marked on the
blowup over on the right-hand side,, correct?
Yes.
Who put that fence there?
I built that fence about a year after I moved
A
my life.
BY MR.
How long ago would that be, about 9 years ago?
That is 8 or 9 years ago, I built that fence
What kind of fence is it?
That was mainly locust post and American wire,
the rest of my lifetime.
Why did you build the fence there?
Because I plan on running cattle the rest of my
that
THE COURT: I am sorry,, what did you say?
I plan on running cattle in there for the rest of
MILLER:
Q The fence as noted on the sketch plan seems to end
at the point somewhere below lot B. Does the fence actually
extend beyond that?
A Yes, it doesn't go straight on back like the
western end of it there. There is where the woods start, right
103
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
there where that B is at. I didn't take the fence straight
back through because it is woodland, there is nothing to eat in
the woods, so I ran the fence on the outer parameter of the
woods in the field where they meet.
Q Can you come and point that out for the Court as to
what you are talking about?
A The fence right here.
Q Speak up so the stenographer can hear you. You are
pointing at the right most corner point that is noted on the
sketch plan?
A Right, then here it will go north.
Q Into what is marked as lot B?
A Right, to the edge of the woods, and this is
pasture lands in here.
Q You are talking about ~he area, the northern part
of what is marked as B?
A Correct, and the wire fence follows the tree line
around here and then back up across here and around, back up to
the barn.
Q So does the fence fully enclose that area that you
are talking about on B?
A Yes, that area is completely enclosed. This fence
goes down along the driveway and south and then where the field
sort of leveled off, it is real steep there, that is why I
decided to run my line fence straight back across pretty much
104
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
perfectly straight. That is a real
pasture in here. This area in here,
here where I make the hay off of.
good fence. This is all
there is a couple spots in
Q You are talking about -the northern part of A is
where you do the hay?
A Right, this here is all pasture in there.
Q Were you using the area that you pointed out that
is in lot B as grazing land, pasture land at the time?
A At the time I met Mr. ]Herman in my driveway, I
might not have had cattle at that moment but I was also using
that for pasture.
How long do you typically keep livestock on your
Q
property?
A
Well, usually I will
months to get them up to weight,
will move them out.
rotating them.
feed them out for 6 to 8
slaughter weight, and then I
I usually try to have enough to keep
How long have you been keeping that operation
going?
A
moving cattle around.
I would say probably 5 years since I have been
I truck some out to Iowa, some down to
Kentucky,
time.
Q
property at
so my population out there goes up and down all the
Do you remember talking with your dad about selling
671 Old Mill Road?
105
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Yes.
When was that approximately?
Probably 3 years ago,, 2 and a half years ago.
We
are both getting old, and I wanted to take care of all the
bills so we wouldn't have to work so hard the rest of our life,
you know, just sort of do what we like to do, instead of having
to work just to survive.
Q What portion of the property did you want to sell?
A Everything north of the fence there in a straight
line clear back to wherever it met the east side.
Q Was that so that you could retain what you were
currently using the property for?
A That is all it would be good for is to graze cattle
in there and what have you.
Q You weren't planning to scale back on what you were
currently using the property for though?
A No, I rent a lot of properties too. I have plenty
of property to make my hay off of besides my dad's farm that is
pretty big.
Q What was the main part of the property that is
marked as E on that sketch plan, what was that used for at the
time?
A I crop farm that.
Q Crop farm, is that what you said?
A Which section did you say, C or E?
106
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
was signed?
A
bills
bills,
ago.
Sorry, E, the main portion here.
Yes, that there is all in hay, crop farmed.
Did you ever meet with Mr. Kafkalas, the realtor?
I can't remember ever meeting him, no.
Did you ever see the agreement of sale before it
NO.
Q How long have you been helping your dad out with
and things like that?
A I have helped my dad for years taking care of
but I just became power of attorney in April, a year
Does your father have
come in the mail?
Q
and things that
trouble understanding bills
A
and stuff like that,
don't understand it.
Q
A
Q
have?
A
goes to?
A
Well, he pretty much understands your light bills
but if it gets more complicated, he just
Is there other property that he sold recently?
Not within the last couple years, no.
What sort of medical problems does your father
Dementia, Alzheimer's.
Does he have regular doctor's appointments that he
Yes.
107
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Is he being treated for those problems?
Yes, that is part of the medication he takes.
Do you know what the medication is, the exact
name
or what it is supposed to do?
A No, I don't, I should ]nave brought that along I
guess. He takes blood pressure medicine, diabetes, Alzheimer's
and dementia.
Q How long has he been on that medication?
A I guess close to 2 years.
Q Do you know was he on 'that medication at the time
when you decided to sell the property?
A I am not sure what he was on at that time. I was
driving truck and I should have been home a little more, you
know, and I wasn't.
Q Were you home at the time that these contracts were
being passed back and forth?
A No, I was home one weekend I believe it was, and
that is when I met Mr. Herman and a couple other fellows there
in my driveway, I only ever talked to them one time.
Q
with them at that time?
A Well, they
know, divided off, what
Was the surveyor there at that point also?
I think he was.
Do you remember any specific conversations you had
just wanted to know what I wanted, you
I had in mind, what my dad had in mind.
108
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I told them I wanted to keep everything from the fence I put
down because that was a permanent structure, my fence back
there.
Q
up
So you never told them that you were going to move
the fence or were willing to move the fence?
A No, I ain't going to move that fence.
take a bulldozer to push that fence out.
It would
Q Does your dad have a driver's license?
A No, he doesn't.
Q Why is that?
A From what I understand, they were taken for this
dementia stuff through the doctor, that was taken while I was
still on the
Q
A
road driving truck.
Do you know approximately when that happened?
I am not sure when they suspended him, but they
pulled him over in town and took them from him somewhere around
Christmas 2 years ago.
Q Was he hospitalised as a result of that?
A Well, he has been in and out of the hospital
different times.
Q For what reasons has he been in and out of the
hospital?
A Well, he had a sore foot that he banged up on the
four-wheeler. He had cat scratch fever, whatever you call it,
from a cat. He had a ruptured appendix and complained about
109
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
He lives
Q
A
him.
Q
his belly hurting him a good bit.
I used to have some (inaudible) bulls up there and
he got in the barn yard and one of them trampled him and he
ended up in the hospital over that.
Q Has that all been over the last couple years?
A Yes, the last 3, 4, years, something like that.
THE COURT: Did I understand he lives in Carlisle,
he doesn't live with you?
A He doesn't live with me. We have two farms, his
address is in Carlisle.
THE COURT: Got you. Next question.
BY MR. MILLER:
Q As a follow-up to that, does he live in a farmhouse
or what does he live in?
A No, my home farm where dad lives was burnt down.
It was proved arson, but it was never found out who done it.
8 miles from me along the same road, 944.
What kind of building does he live in?
Mobile home, so I can :stay there to keep an eye on
Did you have any conversations with your dad about
the mobile home that is on this property?
A Yes, we talk about thai2 every day.
to sell that corner up because that is a steady income. It
wouldn't make sense to sell that lot off for a couple thousand
He never wanted
110
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
when we can sell the lot itself for 30 or 40.
there a lease agreement with the person who is
Q Is
staying there?
A No.
Q
A
Q
A
Q
A
It is just a verbal agreement?
Right.
What is the monthly rent that they would be paying?
$250.
How long have they been living there?
I would say probably close to 10 years. They went
through the township to get in up there. We are allowed one
mobile home on the farm without being subdivided off.
Q Did you have any conversations with your dad about
if the property was being sold what would happen to that mobile
home?
A
intentions
Well, it was going to stay there, because we had no
of selling that lot off the corner there. That is a
valuable piece of land right there on that corner.
not?
Q
A
Did he tell you he had no intention of
Oh, yeah.
selling it?
Do you know if that was conveyed to his realtor or
agreement of
I couldn't say, because I wasn't there.
Do you remember the first time you saw the
sale that has been marked as Plaintiff's Exhibit
111
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No. 17
A I am not sure. I think that was probably in at
your office a good while afterwards.
Q So you didn't see it before it was signed by
anyone?
A No, no. My dad and I talked over what we wanted to
sell it for, that was 250,000, what we agreed on to sell. I
don't know how they broke it down -- they came up with a price
per acre. We never put a price on per acre. I told him we
wanted to sell a certain tract of land for $250,000, and that
we expected to get, and they stood all the expense to
is what
do it.
Q
subdivided?
A
Q
A
Were you aware that the property would have to be
Was I aware that it wouid have to be subdivided?
Were you aware that it would have to be subdivided?
Oh, yeah, to subdivide the farmhouse off it, yes,
and the mobile home.
Q Had you discussed how those
apportioned or who is
A
Q
that to the realtor or --
A I am sure he would haw~,
properties over the years,
costs were going to be
going to be responsible?
Yes, the buyer would absorb all the costs.
Again, do you know if your dad had communicated
because we have sold other
and it has always been that way, the
112
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
buyer would take care of the expense, the transfer, the title
search, whatever you wanted to do. If the buyer wanted to buy
it, you stand the expense to own it.
Q How many properties would you say have been sold
that way over the years?
A My father had a lot of properties up on that
mountain. I would say at last a half dozen I know of.
Q Was it your assumption that this was going to be
handled the same way?
A Yes.
Q Had he used a realtor before when he had sold those
properties?
A No, a lot of properties he sold himself.
Q Who would prepare the documentation for that?
A Well, we never bought anything this large. Most of
the smaller properties we had were through a tax sale or
something like that, it wasn't so complicated in breaking it
down like this here.
None of the sales were as complicated as this, it
would be a tract of mountain ground or whatever that would be
sold for a certain price, and you pay the expense to have it
transferred over and that would be the end of it. Or if you
wanted to build a house on a property, that was up to you, if
you wanted to do the perking to build on it, we weren't going
to stand the expense.
113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
other paperwork to transfer the property?
A Mr. Irwin has handled my dad's affairs for years.
Q Do you know on the agreements, both the listing
agreement and the agreement of sale, do you know what your
dad's signature looks like and if those look to be your dad's
signature?
A
with his initials,
it
tell.
Who would handle drafting the agreement of sale and
I notice that some of these here didn't look like
but when you print, I guess it is hard to
look like
sale and page
Six, that is my dad's signature.
MR. MILLER:
THE COURT:
they are his, I guess
3 on the listing
Q But the signatures
page 6 on the agreement of
agreement?
A
No further questions at this time.
Cross examJ_ne.
BY MR. ROBINSON:
Q Mr. Dick,
CROSS-EXAMINATION
how long ago was it that your father was
diagnosed with Alzheimer's roughly?
A I don't think I was around, I was driving the
truck, I was on the road all the time mostly. And he was in
and out of the hospital, and I really didn't know what his
illnesses were until I had to start dealing with it. I didn't
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
know he was that bad.
didn't see
hard to...
diagnosed,
I was on the road all the time, and I
it coming in that fast. I know he has already been
THE COURT: When do you think it was actually
that is the question? When do you think the doctor
finally said he got Alzheimer's?
A I think he was seeing a doctor it had to be close
after this thing or before this thing happened that he was
seeing a docket at the Medical Arts Building.
BY MR. ROBINSON:
Do you know when that was, roughly?
A I would say that it has been close to 2 years, I
would think so.
Q Mr. Neidlinger had testified that he had a
conversation with you because he was unable to get a hold of
he was trying to get information together for the
your father,
sketch plan?
A
Q
A
Yes.
Do you recall that conversation by chance?
I believe I remember him calling me on the phone
once, and I met him one time in my driveway, I think, that was
the only time I ever talked to him.
Q Do you remember tellinq him that the decisions on
the line would have to be your father's?
A Well, I lived there and pretty much what I said, my
115
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
father went along with. It was my home, we were selling a part
of it. I told Mr. Neidlinger, I am sure I did, standing there
in my driveway, that I wanted the line to be on the south side
of my fence so that the fence would always be on the property
we were going to keep.
I wouldn't want to sell a property with a line
fence on their property that I put in myself. I wanted it to
run straight to the east, no offsets, no jumping around.
Q But do you recall explaining that to either Mr.
Neidlinger or somebody involved in the subdivision project?
A Well, Mr. Herman was there and the surveyor and I
think his neighbor that lived across the street, I am not sure
what his name is.
Q Your father,
home, not with you,
A No.
MR.
Your Honor.
you mentioned he lives in a mobile
does somebody else live with him?
ROBINSON:
THE COURT:
MR. MILLER:
That is all the questions I have,
Any redirect?
Yes, Your Honor.
REDIRECT EX]~MINATION
BY MR. MILLER:
Q When you had that conversation with Mr. Herman and
the surveyor and Mr. Herman's friend, your neighbor, did Mr.
116
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Herman say anything to you as far as what your wishes were?
A Well, he seemed to be a pretty decent guy, soft
spoken, and, you know, pretty much agreed to where
line to be because it is just right up from the --
house, you could pretty much see about where I wanted it, and
he had no problem with that, he said, that is fine, I don't
want any part of that woods anyhow.
Q Did you think he understood that you wanted the
line below the fence and that wouldn't be a problem?
I wanted my
south of the
A I thought for sure he understood that, because I
wanted to keep cattle in there, you know, and I don't want to
have the problem with my line
property.
Q
you seen the agreement of sale?
A No.
Q So you didn't
fence being on somebody else's
When you had that conw~rsation with Mr. Herman, had
sale talked
know the agreement of
approximately ten acres?
A No, that was just a guess. Even if
about
I had to guess,
would have thought closer to twenty acres than ten because of
along the hard road, you know, that takes up a
and it wouldn't take long to use up ten acres,
would have guessed it to be more than ten.
Q was there any conversation the day that you all met
it being limited to ten acres or anything like that?
the two plots
couple acres,
but I
about
117
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
I wanted to keep and that was all right.
that laid off there, the line goes right
Nothing said about specific acres, it was just what
The way they have
in front of my barn
doors, there is no pasture left,'that don't make no sense.
Q You are saying the way that A is charted right now?
A The way A and B is split there, the property line
goes right in front of my barn doors and all the pasture is
east of it, and that is B, which I never wanted to get rid of
that, that is part of that lot there, the farmette.
MR. MILLER:
THE COURT:
MR. ROBINSON:
THE COURT:
MR. MILLER:
No further questions.
Any recross?
No, Your Honor.
You may step down. Next witness.
I call Roger Irwin to the stand.
BY MR.
ROGER B.
having been duly sworn, testified as
DIRECT EXAMINATION
MILLER:
Q
A
Q
A
Q
A
IRWIN, ESQUIRE,
follows:
State your full name?
Roger B. Irwin.
What is your current occupation?
I am an attorney.
And my boss?
Your boss. 46 years.
118
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
discussions with Mr. Dick about the sale of the property at
Old Mill Road?
A There was a listing agreement dropped off at my
office.
Q So he hadn't talked to you about it before that
What is the first recollection that you have of any
671
you had looked at the listing
I did look at the listlng agreement.
Do you recall making any mental notes or calling
point?
A Not that I recall.
Q Do you remember if
agreement?
A
Q
looking at it?
but I think that I did at least
But I think that Mr. Kafkalas is
Mr. Dick or anything after
A I don't recall,
talk to Mr. Dick about it.
the one that came back and picked up the listing agreement from
my office, I did not have a copy. And as he testified, I think
lengthy time period that I had it, so I wasn't
going to be completed or anything more than that
and gave it back to Peter.
Do you remember if it was signed at that point?
I think it was not signed when I had a copy.
Do you know if Paul had signed it at your office or
Dick had signed it at your office?
A No, he did not.
there was some
sure if it was
I looked at it
Q
A
Q
Mr.
119
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q What was the next recollection of contact that you
had regarding the sale of the property?
A That I was told or informed that there was an
agreement of sale signed and I think, as Mr. Neidlinger
mentioned, he came in on another matter about that time and I
mentioned to him that I thought there was some property that
Paul Dick had possibly sold or part of a property and he would
need a surveyor and I know he had another property that he had
a survey problem with and I suggested to Larry that he contact
Mr. Dick. I think some of the papers indicated that I had
hired Larry but I had nothing to do with that hiring.
Q Did you direct Mr. Neidlinger to contact the
realtor or contact Mr. Dick?
A I think I told him to contact Mr. Dick.
Q Did Paul Dick bring the contract or the agreement
to sell the property to you prior to him signing it?
A No.
Q So he had not asked you to review it at that time?
A No.
Q Do you recall Mr. Dick having any conversations
with you about what portion he wanted to keep or how the
property was to be subdivided?
A I think that was the next step that somebody
contacted me, I am not exactly sure how I was contacted but I
was contacted to see if we could set up a meeting to determine
120
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the subdivision, how it was going to be done. At that time in
talking to Mr. Dick I understood that he was to keep a portion,
the barn and house and other ground. Do you want me to go on?
Q Was that the meeting that this plan was presented?
A Then we met, I met with Larry and the realtors at
my office and this plan came out. The Dicks were not there,
and I -- at that time I realized that there was a serious
problem, because I understood that what would be on there
marked A and B is what Paul Dick and Richard Dick wanted to
retain, and it, obviously, was more than ten acres.
I told them, as I recall, that what I would do, I
would keep the sketch plan and I would meet with the Dicks to
see if we could try to figure out some idea as to what -- where
do we go from here.
I told Larry I believe at that time he better not
do anything else, because, obviously, there is serious
confusion as to what is being sold and what is being retained.
Q
Was Mr. Herman present for that meeting?
No, I never saw Mr. Herman until today.
His realtor was there though for that?
Yes.
Do you recall any mention being made of what Mr.
Herman wanted or where he thought the line should be?
A No.
Q Was there a subsequent meeting to that one,
do you
121
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
remember?
A I definitely had a meeting with the Dicks. I don't
know that I had another meeting with the surveyor, I don't
recall that I did. Again, there was much confusion having to
do with a mobile home piece.
Q What did the Dicks tell you as far as what they
thought was going to be done with the mobile home?
A The thing that I recall was that they thought they
were going to retain the rental, the money, that was my
understanding, and that is -- again, that was a serious
conflict when I -- there was confusion on the plan because in
the middle of section E it talks about ten acres, minus two
acres, and I am not exactly sure what that means, but that was
on the plan and that led to more confusion because it kind of
indicated that the ten acres plus two acres was going to be
retained by Mr. Dick, and I think he probably understood that
too. There is a statement in the middle of E.
Q Is that the statement on the middle of the
left-hand side --
A Yes.
Q -- it
minus B two acres,
A
obviously,
was telling me,
says current 81.24 acres, minus A ten acres,
residual 69.24 plus or minus acres?
So that was very confusing to me and,
Right.
it was extremely confusing to Mr. Dick, because he
I am retaining the two acres because I need the
122
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
rental.
supposed to be
concerned.
Q
I wasn't sure at all that that was really what was
intended, especially as far as the agreement
Because the agreement had not said anything about
the mobile home being subdivided as well?
A Well, it was confusing as to what that one
paragraph at the bottom of the first page meant.
Do you recall when you met with the realtors and
Neidlinger any conversation about the mobile home in
Q
with Mr.
particular?
A
was
No, other than I probably asked questions as to
what they understood the situation was. Again, it was very
confusing to me because it was marked off as a -- less off the
total acreage, minus the two acres, minus the ten acres. I
probably should have called Larry to figure out what was going
on but I didn't.
Q With regard to Paul Dick, what sort of medical
problems are you aware of that he has?
A He is, obviously, very confused at times, he has
been very confused. He has a neighbor who lives near where
he -- that he sold a piece of ground off on his current farm
out on the Enola Road that has caused him all kinds of
consternation and problems and there are arrests and counter
arrests going on there and that has become an issue that is
very confusing to Paul.
123
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
So, usually, when I talk to Paul or he comes in to
see me now, he is asking me about this neighbor. That has been
going on for several years and, obviously, he has been very
confused about a lot of different matters. I think I even
called his son one time and I think we met together about this
whole issue about Paul's confusion.
Q How long would you say that he has had this
confusion?
A It has certainly been over 2 years.
Q Has there been any change during the last two or
three years?
A I think it is getting progressively worse.
Q In your opinion is he able to understand contracts
and legal documents?
A I understood back when this particular contract was
going on, I thought I understood what he was planning to do.
Therefore, I wasn't alarmed over the fact that he wanted to
list the property. I do recall that I was very much concerned
about what are you keeping and that the listing agreement was
not clear about what he was selling and what he was keeping.
But I thought at that time that he was able to
understand because over the years I have handled numerous real
estate transactions for him.
Let me just say that he always did sell properties
exactly as was testified to. He wculd arrive at a price,
124
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
2
3
4
5
whether it is a piece of mountain ground or whatever, and he
would say I want $12,000, I want $,~0,000, and I am not going tc
pay any costs at all, except I will pay you.
So that is how he alwavs has sold property over the
last ten or twelve years. There never was a realtor involved,
there never was anything other than he would say this is my
price, you pay the transfer stamps, and so forth, and that is
how he always sold properties.
Q So when he would say this is his
saying that is his net price, that
A Right.
-- to get out of the
Right. When he came
Q
A
with him,
price, he was
is what we wants --
contract?
in and I tried to go over all
he was extremely confused as to why the property was
listed at a certain price and that he wasn't getting what he
listed it for. He never did understand that whole situation.
Q But you think he was able to articulate what he
wanted to retain and not sell?
A No question in my mind that when I showed him that
sketch and talked to him, he indicated that the top portion on
that sketch is what they were keeping, the house and the barn
and the pasture.
Q
that to Mr.
A
Did he tell you whether or not he had explained
Kafkalas or how that came about?
I understood that when they all got there that is
125
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
what was said, we are keeping this portion. I am assuming that
the estimate was that it was ten acres; but I think it was
pointed out what was supposed to be kept by the Dicks, by
Mr. Dick. And I just think, as it was testified to, it turned
out to be more than the ten acres because it was almost
impossible to judge by just looking.
MR. MILLER: No further questions at this time.
THE COURT: Cross-examine.
BY MR. ROBINSON:
Q Mr.
CROSS-EXAMINATION
Irwin, prior to the meeting that you had in
your office with Mr. Neidlinger, Kafkalas and Myers, at any
time did Mr. Dick tell you or did you believe that he was no
longer interested in selling the property.
A I don't recall that, because that is why we had the
meeting and why I agreed to meet with him, so I am not sure
about that, I would say no --
Q When did you become aware that Mr. Dick no longer
wanted to sell the property?
A After I had this meeting, and I Showed him what was
going on.
Q The way I understand it, the meeting was held for
Mr. Neidlinger to actually present this, although you wouldn't
have known it at this time, to establish where the boundary
126
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
lines were going to be established, and that the Dicks didn't
show up, was there any discussion about the boundary lines at
the time?
A
Q
A
Q
At the time of that meeting?
Yes, sir.
Oh, yes, we went over the plan.
Did you explain your concerns to Mr. Neidlinger and
the people at the meeting at the time?
A About the acreage?
Q Yes, sir.
A That the second piece was not -- that it wasn't
going to be included?
Q Yes.
A Yes, I think I indicated I felt that would be a
serious problem. I know somehow, somewhere that I had heard
about the stream or the creek and I don't -- I just remember
hearing about that, I don't know what, why. That is why when
we met I asked about that.
Q With regards to parcel C,
the rental itself, about the money that
rental of this mobile home?
A When I met with Mr. Dick.
Q Would that have been before
with the other gentlemen?
A
when did you learn about
changes hands for the
or after the meeting
I am sure that was after the meeting.
127
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q At the time of the meeting were you confident that
the transaction was still going to go through?
A I did not know. I was unsure. I think that is
what I indicated, that I would be glad to meet with Paul and
see if we could get this figured out.
Q At the time did you have any awareness or would you
have known what the price for an acre of land in the area would
have been going for?
A In that particular area?
Q Yes, sir.
A No, I am generally familiar with values.
Q were you concerned about the amount of the offer on
the agreement for the sale of land?
THE COURT: You mean the per acre price, or is your
question broader? What is your question --
MR. ROBINSON: I will rephrase it. I am sorry,
Your Honor.
THE COURT: So that I understand.
BY MR. ROBINSON:
Q When you first saw the agreement for the sale of
land that had been executed between Mr. Herman and Mr. Dick
with the finally negotiated price cf $180,000 for 70 acres, did
that concern you?
A I wouldn't say that I was concerned. I was a
little confused, but I wouldn't say I was concerned, because I
128
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
was confused about what was included and what was excluded. I
remember I tried to explain. I think I had some idea of the
assessed value on the farm, and I was trying to explain. I
think I tried to explain to Paul based on the assessed value
that if you took the barn and all these other things off, you
are going to have less of a price. Paul kept indicating that
this whole thing, I am still going to get $250,000, that is
what I am supposed to get.
I had to go into a lot of detail with him to show
that if you take off certain parts, you are not going to -- you
are going to retain these, you are not going to get the full
price. So we did have that conversation. Again, he was very
confused about -- the one thing, that there were two estimated
cost statements that had been introduced, seller's cost
statements. He was very, very confused about the different
figures on there and his net, what was he going to walk away
with after he paid off his mortgage.
Q Do you believe that the price on the agreement of
sale is a fair price for the property?
MR. MILLER:
he is not --
THE COURT:
looked at it and you see what
fair from your point of view?
A
Objection, calls for speculation and
Overruled,
it is,
if you know. When you
a per acre price, is it
I was not overly concerned about the per acre
129
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
price. I would probably be more concerned after today when I
heard what the county assessment was.
MR. ROBINSON: That is all I have, Your Honor.
testimony?
THE COURT:
MR. MILLER:
THE COURT:
Any redireot ?
No, Your Honor.
Sir, you can step down.
Any further
MR. MILLER: Those are all the witnesses that I
have, Your Honor. I would move for the admission of
Defendant's Exhibit 1, 2 and 3, the sketch plan, listing
contract, and the first seller's disclosure form.
THE COURT: Any objection?
MR. ROBINSON: No.
THE COURT: They are admitted. Any rebuttal?
MR. ROBINSON: No, Your Honor.
THE COURT: The record is closed.
(Court adjourned at 12:15.)
130
CERTIFICATION
I hereby certify that the proceedings are contained
fully and accurately in the notes taken by me on the above
cause and that this is a correct transcript of same.
Patricia C.~rrett~-~
Official Stenographer
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed to
be filed.
131