HomeMy WebLinkAbout06-4136ESTATE OF ALBERT J. DEITCH,
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. Q G //l 3 4 0 ,n 1 ftrn
ACTION FOR DECLARATORY JUDGMENT
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and notice are served, by entering a written appearance personally or by attorney and filing in
writing with the court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the Plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT
HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO
FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
ESTATE OF ALBERT J. DEITCH,
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
ACTION FOR DECLARATORY JUDGMENT
AVISO
USTED HA SIDO DEMANDADO EN LA CORRE. Si usted desea defenderse de las
quejas expuestas en las paginas siguientes, debe toma accion dentro de veinte (20) dias a partir
de la fecha en que recibio la demanda y el aviso. Usted debe presenter comparecencia escrita en
persona o por abogado y presentar en lat Corte por escrito sus defensas o sus objeciones a las
demandas en su contra.
Se le avisa que si no se defienda, el caso puede proceder sin usted y la Corte puede
decidir en su contra sin mas aviso o notificacion por cualquier otra queja o compensacion
reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U
OTROS DERECHOS IMPORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED
NO TIENE O NO CONOCES UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA
DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
ESTATE OF ALBERT J. DEITCH,
Plaintiff
V.
AMOS L BARRICK and
DEBORAH K. BARRICK,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. d a - v> 3G ' ?/ 71-
ACTION FOR DECLARATORY JUDGMENT
ACTION FOR DECLARATORY JUDGMENT
NOW COMES the Plaintiff, the Estate of Albert J. Deitch, by and through its attorneys,
Stephanie E. Chertok and Andrew H. Shaw, and files the instant Action for Declaratory
Judgment, and in support thereof states as follows:
2.
4.
5.
6.
Plaintiff is the estate of an adult individual whose last residence was at 39 Green Hill
Road, Mechanicsburg, Cumberland County, Pennsylvania.
Defendants Amos I. Barrick and Deborah K. Barrick are adult individuals residing at
2147B Newville Road, Carlisle, Cumberland County, Pennsylvania.
Albert J. Deitch (hereinafter "Decedent") died on March 9, 2005 and Letters of
Adminstration were issued to Lenora Deitch, Barry J. Deitch and Cheryl L. Kuhn on
March 21, 2005.
This action is being brought pursuant to the Declaratory Judgment Act, 42 Pa.C.S. § 7531
et seq., to determine Plaintiff's rights to the real estate located at 2147B Newville Road,
Carlisle, Pennsylvania, as currently recorded in a deed located in the Office of the
Recorder of Deeds in and for Cumberland County at Record Book 31-V, Page 644.
On or about September 7, 1989, the Decedent and Defendants executed an Agreement for
the Installment Sale of Real Estate (hereinafter "Agreement"). A copy of the Agreement
is attached hereto and incorporated by reference as Exhibit A.
Said Agreement is recorded in the Recorder of Deeds at Miscellaneous Book 368, Page
878.
Pursuant to the Agreement, Defendants were to pay One Thousand Five Hundred and
00/100 ($1,500.00) Dollars at the signing of the Agreement, and then make monthly
payments for a period of Fifteen (15) years in the amount of Two Hundred Forty Nine and
85/100 ($249.85) Dollars, commencing October 7, 1989.
8. To date, Plaintiff has been unable to determine whether Defendants tendered payment in
full, but Plaintiff believes that Defendants have not paid in full.
9. Defendants have been unable to provide proof of payment in full.
10. Defendants claim they paid the Decedent in full under the terms of the Agreement.
11. Plaintiff is in possession of notes from Defendants apologizing for not making the regular
payments under the terms of the Agreement. Copies of two notes from Defendants are
attached hereto and incorporated by reference as Exhibit B.
12. Because of the correspondence from Defendants, Plaintiff does not believe Defendants
satisfied the terms of the Agreement.
13. Pursuant to the terms of the Agreement, Defendants are responsible for all property taxes.
14. Defendants have failed to pay said property taxes in a timely manner.
15. The property is currently listed for public sale due to unpaid taxes. A copy of the Notice
is attached hereto and incorporated by reference as Exhibit C.
WHEREFORE, Plaintiff requests this Honorable Court provide the following relief to
Plaintiff: 1) determine whether Defendants fully satisfied the terms of the Agreement for the
Installment Sale of Real Estate 2) if Defendants did not fully satisfy the terms of the Agreement,
determine the legal status of Plaintiff and Defendants is it relates to the terms of the Agreement,
and declare Plaintiff as the owner of the Property.
Date: -7 -,;V- 0 (O
Andrew H. Shaw, Esquire
PA Sup. Ct. ID # 87371
61 W. Louther Street
Carlisle, PA 17013
(717) 249-1177
Attorneys for Plaintiff
PA Sup. Ct. ID # 52651
VERIFICATION
I verify that the statements made in this Complaint are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to
unsworn falsification to authorities.
Date: q-a-l-c)-ooL
4# 4-galia
Lenora Deitch, Co-Administrator
of the Estate of Albert J. Deitch
AGREEMENT FOR THE INSTALLMENT SALE OF REAL ESTATE
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THIS AGREEMENT made this Zd&y of 1989,
between;
Albert J. Deitch, hereinafter referred to as SELLER, and;
Amos 2. Garrick and Deborah K. Sarrick, his wife,
hereinafter referred to as PURCHASERS;
1. SELLER, his Heirs and Assigns, for the
consideration hereinafter mentioned and contained, agree
to sell and convey to Purchasers, their Heirs and Assigns,
all that certain tract of land as described more
particularly in Exhibit A , attached hereto and
incorporated herein.
2. IN CONSIDERATION WHEREOF Purchasers agree to pay
to Seller, the sum of TWENTY FOUR THOUSAND, SEVEN
HUNDRED FIFTY ----------------(:24,750.00) Dollars, as
follows: ONE THOUSAND FIVE HUNDRED ( $ 1,500.00 ) upon the
signing of this agreement and the balance of TWENTY THREE
THOUSAND TWO HUNDRED ( $23,250.00 ), TOGETHER WITH
interest at the rate of ten percent (10x) per annum, in
monthly installments of TWO HUNDRED FORTY NINE
85/100-------------------- ($249.85) Dollars
beginning on Or105 l , 1989, and continuing in regular
monthly installments thereafter for a period of FIFTEEN
YEARS from the date of this Agreement; on or before which
date Purchasers shall pay in full the remaining balance of
the purchase price herein.
3. IT IS ALSO AGREED between the parties hereto that
possession of the said premises shall be delivered to'
Purchasers on the day of 5 {? brn *7 , 1989, and
that Purchasers shall be entitled to receive rents, issues
and profits therefrom, from said date of delivery of
possession subject to the conditions herein set forth.
4. TAXES for prior years have been paid.. Taxes for
the current year shall be pro-rated between the parties
hereto using the fiscal year of the taxing authorities as
the basis, the date of execution of this Agreement as
pro-rating date. At final settlement, Seller agrees to
.pay the sum of TWO HUNDRED FORTY SEVEN AND 50/100
--(247.50 ) Dollars as his share of Realty Transfer Texas.
BOOK 368 PACE 8"/8
Wu
6. UPON compliance with the foregoing.terms and
conditions and payment of the said purchase price in full,
Seller will, at his expense, make, execute and deliver to
the Purchasers a good and sufficient deed for the proper
conveying and assuring of the said premises, in fee
simple, free from all encumbrances, power and right of
power, subject only to easements and restrictions, visible
or of record, such conveyance to contain the usual
covenants of general warranty.
6. IN THE EVENT Seller shall default in the payment
of any debt or obligation which is or shall become a lien
or charge upon the herein conveyed real estate, then.the
Purchasers shalt have the right to pay said debt or
obligation on behelf of Seller and deduct any amount so
paid from the balance due under this Agreement.
7. IN THE EVENT Purchasers shall fail to make said
monthly payments as aforesaid for the space of SIXTY
(60) days after the same shall have become due and payable
by.the terms hereof, or if a breach of any of the
foregoing conditions be made by the Purchasers, then and
in such case this Agreement shall become null and void and
the Purchasers shall forfeit all monies then paid as
liquidated damages, representing the fair rental value of
`'?
r the property during the time the same shall have been
, occupied by the Purchasers. Further, upon default the
entire principal sum remaining unpaid shall become due and
payable at once and may be collected by suit or otherwise;
and the Prothonotary or any attorney of any court of
record of Pennsylvania or elsewhere is hereby authorized
and empowered to appear for and confess judgment against
the Purchasers and in favor of the Seller for the whole
amount of said principal gum remaining unpaid, together
with interest, costs of suit, release of errors,
attorney's commission of five percent and waiving
inquisitions and exemptions. Purchasers, in the event of
default, hereby authorize the Prothonotary or any attorney
of any Court of Record of Pennsylvania, to appear for and
to confess judgment in an amicable action of ejectment
against them and in favor of the Seller for the premises
herein described, and to direct the immediate issuing of a
Writ of Possession with cause of execution for costs,
waiving all irregularities', without notice and without
leave of Court, and with ONE HUNDRED ($100.00) Dollars
added as reasonable attorney's fees.
NO MODIFICATION of this Agreement shall be binding,
unless the same shall be in writing and duly approved by
the parties hereto. The interest of Purchasers in this
Agreement shall not be assignable, in whole or in part,
without the prior written consent and approval of the
Heller and if such assignment is attempted, all rights and
B49K 368 W 879
Albert J. Bitch, Sell r.
Yin Amos I. Sarrick, Purchaser
Deborah K. Barrick, Purchaser
remedies of the Seller wt forth herein or which the,
Seller may otherwise have, shall immediately accrue.
Transfer of title by Will, survivorship or by descent
shall not be regarded as an assignment requiring the
consent and approval of the Seller.
SELLER promises and agrees that for and during the
entire term of this Agreement, no liens or encumbrances
shalt be entered against the herein conveyed premises
which would exceed at any time the balance due on the
purchase price as previously stated herein.
THIS AGREEMENT is to extend to and be binding upon
the heirs, successors, executors, administrators and
assigns, of the parties hereto.
IT IS ACKNOWLEDGED THAT EDWARD W. HARKER IS,ACTING IN -
THIS MATTER AS ATTORNEY FOR THE SELLER AND HAS NOT ADVISED
THE PURCHASERS OR CERTIFIED THE TITLE TO THE PREMISES.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement, consisting of five (5) typewritten pages,
the day and year first above written.
STATE OF PENNSYLVANIA )
):as
COUNTY OF CUMBERLAND )
On this, the ? day of 1989"
before me the undersigned officer, personally appeared
Albert J. Deitch and Amos I. Garrick and Deborah K.
Garrick, his wife, known to me or satisfactorily proven
to be the persons whose names are subscribed to the within
instrument and acknowledged that they executed the same
for the purpose therein contained. f
?n
IN WITNESS WHEREOF, I hav hereunto sot my hand and..,!
.11
official goal.
Notary Public
BOOK 365 'PACE 8$O
NOTARIAL SEAL
HAMILTON C. CAVES, Notary Public
North NWon Twp,, CmMedand to:, Pa.
My Commission Expires Sept. 22, 1992
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DESCRIPTION OF THE PREMISES
ALL THAT CERTAIN tract of land located in West Penneboro
Township, Cumberland County, Pennsylvania, known as Lot
Number 4, Plan of D b M Acres, more particularly bounded
and described in accordance with the survey of Douglas S.
Brehm; R.P.L.S., dated September 26, 1985, as follows:
BEGINNING at an iron pin set in the northern dedicated
right-of-way line of the Pennsylvania Route No. 641, L.R.
21091; thence North 01 degree 14 minutes 50 seconds West,
388.82 feet to an iron pin; thence along lands now or
formerly of the Pennsylvania Turnpike Commission., South
83 degrees 29 minutes 44 seconds East, 109.00 feet to an
iron pin; thence along the western line of Lot No. 3,
South 00 degrees 36 minutes 06 seconds East, 370.76 feet
to an iron pin; thence along the northern right-of-way of
said road, South Be degrees 53 minutes 48 seconds West,
103.88 feet to an iron pin the place of BEGINNING.
CONTAINING 0.924 Acres and being all of Lot No. 4, Plan-of
D 8 M Acres; Plan Book 48, Page 86.
SAID LOT BEING part of the same premises which Douglas S.
•` Brehm and Melissa A. Brehm, husband and wife, by deed
dated April 17, 1986, and recorded in the Office of the
Recorder of Deeds for Cumberland County in Deed Book 31
Volume "V" Page 645, granted and conveyed to Albert J.
Deitch, Grantor herein.
.r' ''•.g Ft?ti. UI oerwse'Ivangj
c:. 0( Unt, of Cumberland ? J"'
Accorded in the office for the recording of Deeds
?•r .^ etc., in nd for Cumberland County, Pa.
1 nt +* Sook33 volt„ Page 87?
r ,mil witness my hand and seal of office, at
Carlisle, R?ttffs.??_day
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BOOK 368 PACE 881
EXHIBIT B
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EXHIBIT C
CUMBERLAND COUNTY
TAX CLAIM BUREAU DATE
PLEASE PRESENT THISNOTICE CERTIFIED 7107 0449 4590 0381 1476 7/10/2006
MAIL NO
WHEN MAKING PAYMENT .
ADDRESS ALL COMMUNICATIONS TO: CONTROL NUMBER 46 1769 ACRES - .980
CUMBERLAND COUNTY MAPNO 46-18-1400-027B
TAX CLAIM BUREAU
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013-3389 LOT 4 PB 48 PG 86
Vacant Land
BUSINESS 8:00 AM TO 4:30 PM NEW VILLE ROAD
HOURS: MONDAY THRU FRIDAY
PHONE
717
240
6366 11:43:23 07/11/06
: (
)
-
(717) 697-0371 EXT 6366 IF YOUR TAXES ARE PAID FROM A MORTGAGE ESCROW ACCOUNT, THE MORTGAGE
(717) 532-7286 ENT 6366 HOLDER DOES NOT RECEIVE A COPY OF THIS NOTICE. HOWEVER, YOU REMAIN LIABLE
FOR THE PAYMENT OF THESE TAXES AND IF THEY ARE NOT PAID, YOUR PROPERTY WILL
BE SOLD EVEN IF YOU HAVE PROVIDED PAYMENT TO THE MORTGAGE HOLDER
PAYMENTS PRIOR TO SALE: Cash, money
Order, rtrdred cheek or Ttrwumm check
Perable to 'The Tw Claim Bureau' No", of Sale will be Pcdbthed once In the Hrriebkoy Pau News, The Sentinel and ones
M the CuobrNrW Low Joumel bsSkfnI g the week of. JULY 24, 2006
NO UNCERTIFIED PERSONAL OR
BUSINESS CHECKS ACCEPTED
P1ac,iwil-uc iwcDar.&tsriC LV'ssap'ya,y-..... - .:_
,- ?._.. -
The amounts represented herein reflect what THE APPROXIMATE UPSET PRICE FOR
is due as of the day of tax sale. If malting DEITCH, ALBERT J WHICH THE PROPERTY SHALL BE SOLD IS:
payment in July or August these amounts SUITE 1
will be less.
61 WEST LOUTHER STREET
;1,858A2
CARLISLE PA 17013
WARNING THE SUM FOR TAXES PRIOR TO 2005
WHICH WILL REMOVE THE PROPERTY
'YOUR PROPERTY IS ABOUT FROM THE SALE IS:
TO BE SOLD WrMUT YOUR $838
71
CONSENT F
R .
DELINQUENT
O
TAXES. YOUR PROPERTY MAY T0: All Owners of propeerty described in this notice, and all persons having liens, judgements or
BE SOLD FOR A SMALL municipal or other claims against such properties.
FRACTION OF ITS FAIR MARKET
VALUE IF YOU HAVE ANY Notice is hereby given by the TAX CLAIM BUREAU in and for the County of Cumberhmd under Act 542
QUESTIONS AS TO WHAT YOU of 1947 P.L. 1368 as amended, that the said BUREAU will expose at Public Sale in the CUMBERLAND
MUST DO IN ORDER TO SAVE
YOUR PROPERTY PLEASE C OLD COUNTY COURTHOUSE, Carlisle, PA at 2:00 PM SEPTEMBER 21, 2006 m any day
hi
YOUR ATTORNEf THE TAX to w
ch the sale may be adjourned, readjoumed or continued, for the purpose of collecting unpaid taxes,
m
CLAIM BUREAU At THE unicipal claims and all costs incidented thereto, the above described real estate for at least the upset price
h
i
FOLLOWING TELEPHONE n t
e amount hereinabove approximately set forth.
NUMBER 24041M OR 682-7286 The sale of this property may, at the OPTION of the BUREAU, be stayed if the Owner thereof or any lien
OR 682-72M OR THE COUNTY creditor of the Owner, on or before the date of sale, enters into an agreement with the BUREAU to pay
LAWYER REFERRAL SERVICE.' taxes, interest and costs in installments in the manner provided by Section 603 of said Act Again, this
provision is only available at the OPTION of the BUREAU.
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SHERIFF'S RETURN - REGULAR
CASE NO: 2006-04136 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DEITCH ALBERT J ESTATE OF
VS
BARRICK AMOS I ET AL
KENNETH GOSSERT , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within DECLARATORY JUDGMENT was served upon
BARRICK DEBORAH K the
DEFENDANT
at 1925:00 HOURS, on the 25th day of July , 2006
at 2147B NEWVILLE ROAD
CARLISLE, PA
by handing to
DEBORAH BARRICK
a true and attested copy of DECLARATORY JUDGMENT
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00
Service .00 Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
16.00v- 07/26/2006
9r?spG EST OF ALBERT DEITCH
Sworn and Subscibed to By:
before me this day
of A.D.
i SHERIFF'S RETURN - REGULAR
CASE NO: 2006-04136 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DEITCH ALBERT J ESTATE OF
VS
BARRICK AMOS I ET AL
KENNETH GOSSERT , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within DECLARATORY JUDGMENT was served upon
BARRICK AMOS I the
DEFENDANT
at 1925:00 HOURS, on the 25th day of July , 2006
at 2147B NEWVILLE ROAD
CARLISLE, PA 17013 by handing to
DEBORAH BARRICK WIFE
a true and attested copy of DECLARATORY JUDGMENT
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
18.00 So A
Service 7.92
Postage .39
Surcharge 10.00 R. Thomas Kline
.00
36.31/' 07/26/2006
? - Q?d?jBG EST OF ALBERT DEITCH
Sworn and Subscibed to By:
before me this day ep S if
of A.D.
ESTATE OF ALBERT J. DEITCH
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants
: IN THE COURT OF COMMON EAS OF
: CUMBERLAND COUNTY, PE YLVANIA
: CIVIL ACTION
: NO: 2006 - 4136
ACTION FOR DECLARATORY
NOTICE TO PLEAD
To the Plaintiff:
ESTATE OF ALBERT J. DEITC H
C.10 Andrew H Shaw, Esquire
200 South Spring Garden Street
Suite 11
Carlisle, PA 17013
You are hereby notified to file a written response to the enclosed preliminary of
within twenty (20) days from the date of service or judgment may be entered against yo,
WO
Dated: March Z3 , 2007
Nathan W off, Esquire
10 West High Street
Carlisle, PA 17013
Supreme Court I.D. No. 87
(717) 241-4436
Attorneys for Defendant
ESTATE OF ALBERT J. DEITCH
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K BARRICK
Defendants
: IN THE COURT OF COMMON
: CUMBERLAND COUNTY, PETS
: CIVIL ACTION
: NO: 2006 - 4136
ACTION FOR DECLARATORY
PRELIMINARY OBJECTIONS
.S OF
,VANIA
AND NOW COME the Defendants, Amos and Deborah Barrick, by and thro h their
attorney, Nathan C. Wolf, Esquire, and present the following preliminary objections to e
complaint filed in the above action, representing as follows:
1. Plaintiff is the Estate of Albert J. Deitch, whose last residence was 39 G en Hill
Road Mechanicsburg, Cumberland County, Pennsylvania.
2. Defendants are Amos I Barrick and Deborah K. Barrick adult individual residing at
2147B Newville Road, Carlisle, Cumberland County, Pennsylvania.
3. Plaintiff filed its complaint on or about July 21, 2006.
4. Defendants were served with the complaint on or about July 25, 2006.
5. The instant action purports to be a claim for declaratory relief arising o? of an
installment sale agreement between the decent and the defendants for purchase
of real property.
6. In several respects, the Complaint violates the Pennsylvania Rules of Ci Procedure
and is therefore objected to.
7. Paragraphs one through six are incorporated by reference as if set fo*4 fully herein.
8. The plaintiff in this action is an estate opened before the Register of of
Cumberland County Pennsylvania.
9. An estate, in Pennsylvania, does not have the legal capacity to initiate ,aIcivil action.
10. As such, the estate is not a proper parry to the instant action and the re any
complaint filed in the name of the estate is a nullity. 11. Defendants submit that the lack of capacity to sue is sufficient to dis s the
complaint pursuant to Pa.R.C.P. 1028(a)(5).
WHEREFORE, Defendants, Amos I Barrick and Deborah Barrick, respectfull ray that this
Court, in consideration of the foregoing preliminary objection, issue an Order s ining said
objection and dismissing Plaintiff's Complaint, along with any other relief the Co may deem
appropriate and just.
MOTION TO DISMISS FOR LEGAL INSUFFICIENCY
OF PLEADING (DEMURRER)
12. Paragraphs one through twelve are incorporated by reference as if set ?fully
herein.
13. The Plaintiff in this action has brought an action under the Declarato udgment
Act seeking relief on the basis that the Defendants had not satisfied th ' obligation
to the decedent.
14. Plaintiff requests that this Court grant relief on the basis that the ]
been unable to prove that they have satisfied the obligation to the
15. The Decedent died approximately six months after the payment
16. The Decedent filed no action during his lifetime to pursue a deli
Defendants for non-payment.
have
expired.
the
17. The Plaintiff has failed to allege sufficient facts upon which this
relief.
18. Defendants submit that the legal insufficiency of a pleading,
1028(a)(4) warrants dismissal of the complaint.
WHEREFORE, Defendants, Amos I Barrick and Deborah Barrick, respectf
Court, in consideration of the foregoing preliminary objection, issue an Order
objection and dismissing Plaintiff's Complaint, along with any other relief the
appropriate and just.
MOTION FOR A MORE SPECIFIC PLEADING
19. Paragraphs one through eighteen are incorporated by reference as if
herein.
20. Plaintiff has alleged that it is unable to determine whether Defendants
payment in full, but believes that Defendants have not paid in full.
21. In support of its belief, Plaintiff submits notes from Defendants to
concerning late payments in 2000 and 2001.
22. The operative installment sale agreement, upon which this action is
executed in 1989 and the payment period lasted until 2004, during
Defendants maintain that they paid decedent in full.
grant
Pa.RC.P.
that this
ring said
may deem
forth fully
tendered
was
iH time
23. Plaintiff fails to offer any evidence of payments received and does not owlei
any such payments, despite the fact that the fast correspondence upon which its
belief is based was dated more than ten years after the execution of the a reemei
24. Defendants are unable to ascertain precisely what the claim of the Plair?ti f is with
regard what it acknowledges as the partial payment of the obligation, what
obligation it believes is still due and owing at present.
25. Without a more specific pleading Defendants are unable to offer a
defense to the complaint.
26. Defendants submit that pursuant to Pa.KC.P. 1028(a)(3) that the Co would be
justified in dismissing the complaint, unless it files a more specific pl a ' g setting
forth the precise basis for its claim.
WHEREFORE, Defendants, Amos I Barrick and Deborah Barrick, respectf ray that this
Court, in consideration of the foregoing preliminary objection, issue an Order s fining said
objection and dismissing Plaintiff's Complaint, or directing the Plaintiff to file a re specific
pleading, along with any other relief the Court may deem appropriate and just.
Respectfully su mitted,
WOLF &,WO; Attorneys Law
Date: March 23, 2007
N,gjfan C , Esquire
Supre urt ID# 87380
10 W igh Street
Carlisle, PA 17013
717-241-4436
ESTATE OF ALBERT J. DEITCH : IN THE COURT OF COMMON LEAS OF
Plaintiff : CUMBERLAND COUNTY, PE YLVANIA
V. : CIVIL ACTION
: NO: 2006 - 4136
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants ACTION FOR DECLARATORYT GMENT
CERTIFICATE OF SERVICE
I, Nathan C. Wolf, Esquire, attorney for Defendants, Amos I. Barrick and Deb?rah K.
Barrick, do hereby certify that I caused to be mailed, this date, by U. S. Mail, a copy of t?he foregoing
Preliminary Objections to:
Andrew H. Shaw, Esquire
200 South Spring Garden Street
Suite 11
Carlisle, PA 17013
Counsel for Plaintiff
WOLF
Date: March Z-3, 2007
BY:
Esquire
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NATHAN C. WOLF, ESQUIRE
WOLF & WOLF
ATTORNEY ID NO. 87380
10 WEST HIGH STREET
CARLISLE PA 17013
(717) 2414436
ATTORNEY FOR DEFENDANTS
ESTATE OF ALBERT J. DEITCH : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. CIVIL ACTION
NO: 2006 - 4136
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants : ACTION FOR DECLARATORY JUDGMENT
PETITION OF DEFENDANTS' COUNSEL FOR LEAVE TO WITHDRAW APPEARAN E
The petition of Nathan C. Wolf, Esquire, respectfully represents the following:
1. The Petitioner and Defendants entered into an Attorney/Client agreement on August 23,
2006. Said agreement states that "I reserve the right to... terminate our attorney-client
relationship if you do not pay the fees or expenses and costs within thirty (30) days of
billing.-
2. Defendants have had an outstanding balance since April, 2007 and have made no payments
thereon.
3. Petitioner sent Defendants regular monthly statements reflecting the fees owed for services
rendered as well as periodic letters with regard to the above-referenced matter.
4. The Defendants have failed to substantially fulfill their financial obligation to the Petitioner
regarding Petitioner's legal fees and Defendants have been given reasonable warning that
Petitioner will withdraw unless said financial obligation is fulfilled. Good cause thus exists
pursuant to Rule 1.16(6)(5) of the Pennsylvania Rules of Professional Conduct for
Petitioner's withdrawal.
5. The continued representation of the Defendants without payment of Petitioner's fees, or
the prospect of such payment, has resulted and will further result in an unreasonable
financial burden on Petitioner. Good cause thus exists pursuant to Rule 1.16(b)(6) of the
Pennsylvania Rules of Professional Conduct for Petitioner's withdrawal.
6. Plaintiff's counsel, Andrew H. Shaw, Esquire, concurs in the relief requested in this petition.
WHEREFORE, Petitioner requests that this Court grant Petitioner leave to withdraw his appearance
for Defendants in this action along with any additional relief that the Court deems appropriate and just.
Respectfully submitted,
WOL?OLF, Attorneys at Law
December %/, 2007 '?- `I.- /-
Nath . Wolf, Esquire
10 t High Street
Gailis PA 17013
(717) 241-4436
Supreme Court I.D. No. 87380
VERIFICATION
I verify that the statements made in the foregoing Petition of Defendant's Counsel for Leave to
Withdraw Appearance are true and correct to the best of my knowledge, information and belief. I
understand that false statements made herein may subject to me to the penalties of 18 Pa.-S. Section
4904 relating to unworn falsification to authorities.
December %? 2007
a oli, Esquire
NATHAN C. WOLF, ESQUIRE
WOLF & WOLF
ATTORNEY ID NO. 87380
10 WEST HIGH STREET
CARLISLE PA 17013
(717) 241-4436
ATTORNEY FOR DEFENDANTS
ESTATE OF ALBERT J. DEITCH : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION
: NO: 2006 - 4136
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants ACTION FOR DECLARATORY JUDGMENT
CERTIFICATE OF SERVICE
I, Nathan C. Wolf, Esquire, hereby certify this day that I mailed a true and correct copy of the
foregoing Petition to Withdraw Appearance of Counsel of Record, by U S. Mail, postage prepaid, to
the following:
Amos I. and Deborah K. Barrick
2147B Newville Road
Carlisle, PA 17015
Andrew H. Shaw, Esquire
200 South Spring Garden Street
Suite 11
Carlisle, PA 17013
Dated: December //-312007
N
Wp ?,?
.• DEC 122007p4 X/
ESTATE OF ALBERT J. DEITCH : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION
: NO: 2006 - 4136
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants : ACTION FOR DECLARATORY JUDGMENT
ORDER ALLOWING WITHDRAWAL OF DEFENDANTS' COUNSEL
ik
AND NOW, this 1y day of C, s-, , 2003, upon consideration of the verified
Petition of Defendant's Counsel For Leave to Withdraw Appearance, it is hereby ORDERED and
DECREED that said petition is GRANMD and that the petitioner, Nathan C. Wolf, Esquire, be
pennitted to withdraw his appearance of record for the Defendants in the above captioned matter.
Distribution:
than C. Wolf, Esquire
idrew H. Shaw, Esquire
?/ Aos & Deborah Barrick
;'2147B Newville Road
Carlisle, PA 17015
KMC m ?
?Z bId h 1333101
ANIZAV ?o
NATHAN C. WOLF, ESQUIRE
WOLF & WOLF
ATTORNEY ID NO. 87380
10 WEST HIGH STREET
CARLISLE PA 17013
(717) 241-4436
ATTORNEY FOR DEFENDANTS
ESTATE OF ALBERT J. DEITCH
Plaintiff
v.
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
: NO: 2006 - 4136
ACTION FOR DECLARATORY JUDGMENT
PRAECIPE TO WITHDRAW APPEARANCE OF
COUNSEL OF RECORD
TO THE PROTHONOTARY:
Please withdraw the appearance of NATHAN C. WOLF, ESQUIRE, as attorney of record
for Defendants, AMOS I. BARRICK and DEBORAH K. BARRICK, in this matter.
December .2007
LF, ESQUIRE
10 W&rHigh Street
Carlisle, PA 17013
717-241-4436
SUPREME COURT ID #87380
NATHAN C. WOLF, ESQUIRE
WOLF & WOLF
ATTORNEY ID NO. 87380
10 WEST HIGH STREET
CARLISLE PA 17013
(717) 241-4436
ATTORNEY FOR DEFENDANTS
ESTATE OF ALBERT J. DEITCH
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION
: NO: 2006 - 4136
ACTION FOR DECLARATORY JUDGMENT
CERTIFICATE OF SERVICE
I, Nathan C. Wolf, Esquire, hereby certify this day that I mailed a true and correct copy of the
foregoing Praecipe to Withdraw Appearance of Counsel of Record, by U. S. Mail, postage prepaid,
to the following:
Amos I. and Deborah K. Barrick
2147B Newville Road
Carlisle, PA 17015
Andrew H. Shaw, Esquire
200 South Spring Garden Street
Suite 11
Carlisle, PA 17013
Dated: December > Y , 2007
Nathplp-C. Wolf, Esquire
o
ESTATE OF ALBERT J. DEITCH,
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-4136
ACTION FOR DECLARATORY JUDGMENT
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 Hyou fail to do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the Plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT
HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO
FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
ESTATE OF ALBERT J. DEITCH,
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-4136
ACTION FOR DECLARATORY JUDGMENT
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las
quejas expuestas en las paginas siguientes, debe toma accion dentro de veinte (20) dias a partir
de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en
persona o por abogado y presentar en lat Corte por escrito sus defensas o sus objeciones a las
demandas en su contra.
Se le avisa que si no se defienda, el caso puede proceder sin usted y la Corte puede
decidir en su contra sin mas aviso o notificacion por cualquier otra queja o compensacion
reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U
OTROS DERECHOS EWPORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED
NO TIENE O NO CONOCES UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA
DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
LENORA DEITCH, BARRY J.
DEITCH, AND CHERYL L. KUHN,
ADMINISTRATORS OF THE ESTATE
OF ALBERT J. DEITCH,
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 20064136
ACTION FOR DECLARATORY JUDGMENT
AMENDED ACTION FOR DECLARATORY JUDGMENT
NOW COMES the Plaintiffs, Lenora Deitch, Barry J. Deitch and Cheryl L. Kuhn,
Administrators of the Estate of Albert J. Deitch, by and through their attorney, Andrew H. Shaw,
and file the instant Action for Declaratory Judgment, and in support thereof state as follows:
1.
2.
3.
4.
5.
Plaintiffs are the Administrators of the Estate of Albert J. Deitch, duly appointed through
the issuance of Letters of Administration by the Register of Wills for Cumberland County
on March 21, 2005. A copy of the Letters of Administration are attached hereto and
incorporated by reference as Exhibit A.
Defendants Amos I. Barrick and Deborah K. Barrick are adult individuals residing at
2147B Newville Road, Carlisle, Cumberland County, Pennsylvania.
Albert J. Deitch (hereinafter "Decedent") died on March 9, 2005.
This action is being brought pursuant to the Declaratory Judgment Act, 42 Pa.C.S. § 7531
et seq., to determine Plaintiff's rights to the real estate located at 2147B Newville Road,
Carlisle, Pennsylvania, as currently recorded in a deed located in the Office of the
Recorder of Deeds in and for Cumberland County at Record Book 31-V, Page 644.
On or about September 7, 1989, the Decedent and Defendants executed an Agreement for
the Installment Sale of Real Estate (hereinafter "Agreement"). A copy of the Agreement
is attached hereto and incorporated by reference as Exhibit B.
6. Said Agreement is recorded in the Recorder of Deeds at Miscellaneous Book 368, Page
878.
7. Pursuant to the Agreement, Defendants were to pay One Thousand Five Hundred and
00/100 ($1,500.00) Dollars at the signing of the Agreement, and then make monthly
payments for a period of Fifteen (15) years in the amount of Two Hundred Forty Nine and
85/100 ($249.85) Dollars, commencing October 7, 1989.
8. To date, Plaintiff has been unable to determine whether Defendants tendered payment in
full, but Plaintiff believes that Defendants have not paid in full.
9. Defendants have been unable to provide proof of payment in full.
10. Defendants claim they paid the Decedent in full under the terms of the Agreement.
11. Plaintiff is in possession of notes from Defendants apologizing for not making the regular
payments under the terms of the Agreement. Copies of two notes from Defendants are
attached hereto and incorporated by reference as Exhibit C.
12. Because of the correspondence from Defendants, Plaintiff does not believe Defendants
satisfied the terms of the Agreement.
13. Pursuant to the terms of the Agreement, Defendants are responsible for all property taxes.
14. Defendants have failed to pay said property taxes in a timely manner.
15. The property is currently listed for public sale due to unpaid taxes. A copy of the Notice
is attached hereto and incorporated by reference as Exhibit D.
WHEREFORE, Plaintiff requests this Honorable Court provide the following relief to
Plaintiff: 1) determine whether Defendants fully satisfied the terms of the Agreement for the
Installment Sale of Real Estate 2) if Defendants did not fully satisfy the terms of the Agreement,
determine the legal status of Plaintiff and Defendants is it relates to the terms of the Agreement,
and declare Plaintiff as the owner of the Property.
Respectfully submitted,
Date: -- O
By:
drew H. haw, Esquire
PA Sup. Ct. ID # 87371
200 S. Spring Garden St., Suite 11
Carlisle, PA 17013
(717) 243-7135
Attorney for Plaintiff
VERIFICATION
I verify that the statements made in this Amended Complaint are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section
4904, relating to unsworn falsification to authorities.
oa?
64d ?-OOcP
Lenora 4nDeAi"tch,Co,-- ministrator
of the Estate of Albert J. Deitch
REGISTER OF WILLS
CUMBERLAND County, Pennsylvania
CERTIFICATE OF GRANT OF LETTERS
No. 2005- 00266 PA No. 21- 05- 0266
Estate Of : ALBERT J DEITCH
(First Middle, Last)
Late Of : SIL VER SPRING TO WNSHIP
CUMBERLAND COUNTY
Deceased
Social Security No: 204-30-7985
WHEREAS, ALBERT J DEITCH
(First, Middle, Last)
late of SILVER SPRING TOWNSHIP CUMBERLAND COUNTY
died on the 9th day of March 2005 and,
WHEREAS, the grant of Letters of Administration
is required for the administration of the estate.
THEREFORE, I, GLENDA FARNER STRASBAUGH , Register of Wills in and
for CUMBERLAND County, in the Commonwealth of Pennsylvania, have
this day granted Letters of Administration to:
LENORA DEITCH and BARRY J DEITCH and
CHERYL L KUHN
who have duly qualified as ADMINISTRATOR(RIX) of the estate
of the above named decedent and have agreed to administer the estate
according to law, all of which fully appears of record in my office at
CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYLVANIA,
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal
of my office on the 21st day of March 2005.
Regis ter o l s
eputy
EXHIBIT
**NOTE** ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST)
AGREEMENT FOR THE INSTALLMENT SALE OF REAL ESTATE
e
THIS AGREEMENT made this =dhy of 1989,
between;
Albert J. Deitch, hereinafter referred to as SELLER, and;
` Amos I. Garrick and Deborah K. Garrick, his wife,
?.- hereinafter referred to as PURCHASERS;
f ?
•c WITNESSETH THAT :
c,
4 ,y 1. SELLER, his Heirs and Assigns, for the
p? to consideration hereinafter mentioned and contained, agree
to sell and convey to Purchasers, their Heirs and Assigns,
all that certain tract of land as described more
particularly in Exhibit A , attached hereto and
incorporated herein.
2. IN CONSIDERATION WHEREOF Purchasers agree to pay
to Seller, the sum of TWENTY FOUR THOUSAND, SEVEN
HUNDRED FIFTY ----------------($24,750.00) Dollars, as
follows: ONE THOUSAND FIVE HUNDRED ( $ 1,500.00 ) upon the.
signing of this agreement and the balance of TWENTY THREE
THOUSAND TWO HUNDRED ( $23,250.00 ), TOGETHER WITH
interest at the rate of ten percent (10x) per annum, in
monthly installments of TWO HUNDRED FORTY NINE
85/100----------- -- ----($249.85) Dollars
Oo-hl
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nn
ng on
, 1989, and continuing in regular
monthly installments thereafter for a period of FIFTEEN
YEARS from the date of this Agreement; on or before which
date Purchasers shall pay in full the remaining balance of
the purchase price herein.
3. IT IS ALSO AGREED between the parties hereto that
possession of the said premises shall be delivered to
Purchasers on the day of 5 ?.r?.., 1or^ *r , 1989, and
that Purchasers shall be ent fled to receive rents, issues
and profits therefrom, from said date of delivery of
possession subject to the conditions herein set forth.
4. TAXES for prior years have been paid.. Taxes for
the current year shall be pro-rated between the parties
hereto using the fiscal year of the taxing authorities as
the basis, the date of execution of this Agreement as
pro-rating date.. At final settlement, Seller agrees to
.pay the sum of TWO HUNDRED FORTY SEVEN AND 50/100
--(247.50 ) Dollars as his share of Realty Transfer Taxes.
BOOK 368 PACE 8:8
EXHIBIT
f?i . s
5. UPON compli"ante with the foregoing,terms and
conditions and payment of the said purchase price in full,
Seller will, at his expense, make, execute and deliver to
the, Purchasersa good and sufficient deed for the proper
coveying and assuring of the said premises, in fee
simple, free from all encumbrances, power and right of
power, subject only to easements and restrictions, visible
or of record, such conveyance to contain the usual
covenants of general warranty.
6. IN THE EVENT Seller shall default in the payment
of any debt or obligation which is or shall become a lien
or charge upon the herein conveyed real estate, then. the
Purchasers shall have the right to pay said debt or
obligation on behalf of Seller and deduct any amount so
paid from the balance due under this Agreement.
7. IN THE EVENT Purchasers shall fail to make said
monthly payments as aforesaid for the space of SIXTY
(60) days after the same shall have become due and payable
by the terms hereof, or if a breach of any of the
foregoing conditions be made by the Purchasers, then and
in such case this Agreement shall become null and void and
the Purchasers shall forfeit all monies then paid as
liquidated damages, representing the fair rental value of
the property during the time the same shall have been.
occupied by -the Purchasers. Further, upon default the
entire principal sum remaining unpaid shall become due and
payable at once and may be collected by suit or otherwise;
and the Prothonotary or any attorney of any court of
record of Pennsylvania or elsewhere is hereby authorized
and empowered to appear for and confess judgment against
the Purchasers and in favor of the Seller for the whole
amount of said principal sum remaining unpaid, together
with interest, costs of suit; release of errors,
attorney's commission of five percent and waiving
inquisitions and exemptions. Purchasers, in the event of
default, hereby authorize the Prothonotary or any attorney
i of any Court of Record of Pennsylvania, to appear for and
i to confess judgment in an amicable action of ejectment
against them and in favor of the Seller for the premises
herein described, and to direct the immediate issuing of a
Writ of Possession with cause of execution for costs,
waiving all irregularities, without notice and without
leave of Court, and with ONE HUNDRED (;100.00) Dollars
added as reasonable attorney's fees.
NO MODIFICATION of this Agreement shall be binding,
unless the same shall be in writing and duly approved by
the parties hereto. The interest of Purchasers in this
Agreement shall•not be assignable, in whole or in part,
without the prior written consent and approval of the
Seller and if such assignment is attempted, all rights and
ANK 368 PACE 87.)
r . .• I
r
1
remedies of the Seller set forth herein or which the.
Seller may otherwise have, shall immediately accrue.
Transfer of title by Will, survivorship or by descent
shall not be regarded as an assignment requiring the
consent and approval of the Seller.
SELLER promises and agrees that for and during the
entire term of this Agreement, no liens or encumbrances
shall be entered against the herein conveyed premises
which would exceed at any time the balance due on the
purchase price as previously stated herein.
THIS AGREEMENT is to extend to and be binding upon
the heirs, successors, executors, administrators and
assigns, of the parties hereto.
IT IS ACKNOWLEDGED THAT EDWARD W. MARKER I8-ACTING IN
THIS MATTER AS ATTORNEY FOR THE SELLER AND HAS NOT ADVISED
THE PURCHASERS OR CERTIFIED THE TITLE TO THE PREMISES.
IN WITNESS WHEREOF, the parties hereto have executed -``
this Agreement, consisting of five (5) typewritten pages,
the day and year first.above written.
1 ,
AZ4/1
Albert J. Bitch, Seller.
Amos I. Barrick, Purchaser
Deborah K. Barrick, Purchaser
COUNTY OF CUMBERLAND )
STATE OF PENNSYLVANIA )
):ss
On this, the day of 1989
before me the undersigned officer, personally appeared
Albert J. Deitch and Amos I. Barrick and Deborah K.
Barrick, his wife, known to me or satisfactorily proven
to be the persons whose names are subscribed to the within,.
instrument and acknowledged that they executed the same ; ,
for the purpose therein contained. ,F ?+1,»tr•?d 4
IN WITNESS WHEREOF I hay hereunto set my hand and
official seal. ?l' -f'•.
Notary Public
NOTARIAL $CAt ;: s •' ?? ? ;
r Q ?1 HAMILTON C. PAM, Notary Public . "? t? ?,,••'
a00K 3['jtj 'PACE VC8II Horfh Newton Turp., Cumberiand'Co:, P.a.
My Commission Expires Sept. 22, 1992
¦
DESCRIPTION OF THE PREMISES
ALL THAT CERTAIN tract of land located in West Pennsboro
Township, Cumberland County, Pennsylvania, known as Lot
Number 4, Plan of D & M Acres, more particularly bounded
and described in accordance with the survey of Douglas S.
Brehm;: R.P.L.S., dated September 26,.1985, as follows:
BEGINNING at an iron pin set in the northern dedicated
right=of-way line of the Pennsylvania Route No. 641, L.R.
21091; thence North 01 degree 14 minutes 50 seconds West,
388.82 feet to an iron pin; thence along lands now or
formerly of the Pennsylvania Turnpike Commission., South
83 degrees 29 minutes 44 seconds East, 109.00 feet to an.
iron pin; thence along the western line of Lot No. 3,
South 00 degrees 38 minutes 06 seconds East, 370.76 feet
to an iron pin; thence along the northern right-of-way of
said road, South 86 degrees 53 minutes 48 seconds West,
103.88 feet to an iron pin the place of BEGINNING.
CONTAINING 0.924 Acres and being all of Lot No. 4, Plan-of
D & M Acres, Plan Book 48, Page 86.
SAID LOT BEING part of the same premises which Douglas S. '
Brehm and Melissa A. Brehm, husband and wife, by deed
®rsl.4
dated April 17, 1986, and recorded in the Office of the
Recorder of Deeds for Cumberland County in Deed Book 31.
Volume "V" Page 645, granted and conveyed to Albert J.
Deitch, Grantor herein.
r • r ?f It[, of 1:1efjjjSy'I'.arlr@
r,:• Crunt; of Cumberland `'°"'
?` - R•_corded in the office for the recording of Deeds
"':? ?,_ }`•? etcn?.•? ?in? ?nd for Cumberland County, Pa.
1nirr Book3M Vol Page .,._
witness my hand and seal of office, at
r?
4A /°- Carlisle, 1 day
..f: BOOK 368 PACE 881
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EXHIBIT
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13
05
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t ? - - - `... ?. ? ??343]f3311??3333?.3?}??t91.ilt??S}?33543f?l itillif??iff?t4 ?}II4f
/2e- '0- .-/Cl
CUMBERLAND COUNTY
TAX CLAIM BUREAU DATE
PLEASE PRESENT THIS NOTICE CERTIFIED 710 7 0 4 4 9 4 5 9 0 0381 1476 7/10/2006
MAIL NO
WHEN MAKING PAYMENT .
ADDRESS ALL COMMUNICATIONS TO: CONTROL NUMBER 46 1769 ACRES - .980
CUMBERLAND COUNTY MAP NO 46-18-1400-027B
TAX CLAIM BUREAU
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013-3389 LOT 4 PB 48 PG 86
vacant Land
BUSINESS 8:00 AM TO 4:30 PM NEWVILLE ROAD
HOURS: MONDAY THRU FRIDAY
11:43:23 07/11/06
PHONE: (717) 240-6366
(717) 697-0371 EXT 6366 IF YOUR TAXES ARE PAID FROM A MORTGAGE ESCROW ACCOUNT, THE MORTGAGE
(717) 532-7286 EXT 6366 HOLDER DOES NOT RECEIVE A COPY OF THIS NOTICE. HOWEVER, YOU REMAIN LIABLE
FOR THE PAYMENT OF THESE TAXES AND IF THEY ARE NOT PAID
YOUR PROPERTY WILL
,
BE SOLD EVEN IF YOU HAVE PROVIDED PAYMENT TO THE MORTGAGE HOLDER
PAYMENTS PRIOR TO BALE: Cash, money
order, oertilled check or Treasurwe check
Payable to "The Tax Clehn Bureau' Notice of Sale will be publiahed ones In the HarrbWM Pablo[ News, The Sentinel and once
NO UNCERTIFIED PERSONAL OR In the Cumbsrlsnd Law Journal bsglmhV the week of. JULY 24,2M
BUSINESS CHECKS ACCEPTED
.,... , ..
i-itdet ?3ci-tSt :tiGLLzI.:/ciVf£:hda?ra `" rali.7it
The amouuts represented herein reflect what
+
=•. r.-•.-_ i:..:: rr,.^.-. c'•... -,n.-
1 P-0. M-91 MR"
is due as of the day of tax sale. If making THE APPROXIMATE UPSET PRICE FOR
DEITCH, ALBERT J WHICH THE PROPERTY SHALL BE SOLD IS:
payment in July or August these amounts SUITE I
will be less. 61 WEST LOUTHER STREET $1,358A2
CARLISLE PA 17013
WARNING THE SUM FOR TAXES PRIOR TO 2005
WHICH WILL REMOVE THE PROPERTY
°YOUR PROPERTY IS ABOUT FROM THE SALE LS:
TO BE SOLD WITHOUT YOUR $838
71
CONSENT FOR DELINQUENT .
TAXES. YOUR PROPERTY MAY
BE SOLD FOR A SMALL TO: All Owners of property described in this notice, and all persons having liens, judgements or
FRACTION OF ITS FAIR MARKET municipal or other claims against such properties.
VALUE. IF YOU HAVE ANY
QUESTIONS AS TO WHAT YOU Notice is hereby given by the TAX CLAIM BUREAU in and for the County of Cumberland under Act 542
f
MUST DO IN ORDER TO SAVE o
1947 P.L. 1368 as amended, that the said BUREAU will expose at Public Sale in the CUMBERLAND
OLD COUNTY COURTHOUSE, Carlisle, PA at 2:00 PM SEPTEMBER 21
2006 or any day
YOUR PROPERTY PLEASE CALL
YOUR ATTORNEY' THE TAX ,
to which the sale may be adjourned, readjourned or continued, for the purpose of collecting unpaid taxes,
m
i
CLAIM BUREAU k THE unicipal claims and all costs incidented thereto, the above descr
bed real estate for at least the upset price
FOLLOWING TELEPHONE in the amount hereinabove approximately set forth.
NUMBER 240-6386 OR 532-7286
OR 532-7286 OR THE COUNTY The sale of this property may, at the OPTION of the BUREAU, be stayed if the Owner thereof or any lien
LAWYER REFERRAL SERVICE creditor of the Owner, on or before the date of sale, enters into an agreement with the BUREAU to pay
i
. taxes,
nterest and costs in installments in the manner provided by Section 603 of said Act Again, this
provision is only available at the OPTION of the BUREAU.
E BIT
? ,I
CERTIFICATE OF SERVICE
I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the
following document, Amended Complaint, was served this date on the below named, by
placing same in the United States mail, first-class, postage prepaid thereon, addressed as
follows:
Amos and Deborah Barrick
2147B Newville Road
Carlisle, PA 17015
Defendants
Date: r- ? 09
Sup. Ct. I.D. No. 87371
Law Office of Andrew H. Shaw, P.C.
Carlisle, PA 17013
(717) 243-7135 (phone)
(717) 243-7872 (facsimile)
Attorney for Plaintiff
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Wayne Melnick, Esquire
Attorney I.D. No.: 53150
36 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 249-0900
ESTATE OF ALBERT J. DEITCH
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION
NO.: 2006-4136
NOTICE TO PLEAD
TO: Estate of Albert J. Deitch
C/O Andrew H. Shaw, Esquire
200 South Spring Garden Street, Suite 11
Carlisle, PA 17013
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS
OF DEFENDANTS WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING.
Respectfully Submitted,
ABOM & KUTULAKIS, L.L.P.
S- 5-0g
Date Wayne M?lnick, Esquire -
Supreme Court I.D. 53150
36 South Hanover Street
Carlisle, PA 17013
(717) 249-0900
ABOM &
NuTUL.AKIS
Wayne Melnick, Esquire
Attorney I. D. No.: 53150
36 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 249-0900
ESTATE OF ALBERT J. DEITCH COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PA
V. CIVIL ACTION
NO.: 2006-4136
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants
PRELIMINARY OBJECTIONS
AND NOW, this 29"' day of May, 2008, come the Defendants, Amos and
Deborah Barrick, by and through their attorney, Wayne Melnick, Esquire of ABOM &
KUTULAKIS, L.L.P., and present the following Preliminary Objections to the Complaint
filed in the above action, representing as follows:
1. Plaintiff is the Estate of Albert J. Deitch, whose last residence was 39
Green Hill Road, Mechanicsburg, Cumberland County, Pennsylvania.
2. Defendants are Amos I. Barrick and Deborah K. Barrick, adult individuals
residing at 2147B Newville Road, Carlisle, Cumberland County, Pennsylvania.
3. Plaintiff filed its Complaint on or about May 9, 2008.
4. Defendants were served with the complaint on or about May 9, 2008.
5. The instant action purports to be a claim for declaratory relief arising out
of an installment sale agreement between the decent and the defendants for the purchase
of real property.
6. On or about March 23, 2007, prior counsel for defendants filed
Preliminary Objections including: a Motion to Dismiss for Lack of Capacity to Sue; a
Motion to Dismiss for Legal Insufficiency of Pleading (Demurrer); and a Motion for a
More Specific Pleading.
7. On or about May 9, 2008, Plaintiffs filed an Amended action for
Declaratory Judgment.
The Amended action for Declaratory Judgment substituted the
administrators of the estate of Albert J. Deitch for the estate of Albert J. Deitch as
Plaintiffs in this action.
9. It is believed and therefore averred that the substitution of the
administrators of the estate of Albert J. Deitch as Plaintiffs was in response to Defendants
Preliminary Objection in the form of a Motion to Dismiss for Lack of Capacity to Sue.
10. Plaintiffs Amended action for Declaratory Judgment contains no
amendment to the original Complaint addressing Defendants Motion to Dismiss for Legal
Insufficiency of Pleading (Demurrer) or its Motion for a More Specific Pleading.
11. Plaintiffs Amended action for Declaratory Judgment continues to violate
the Pennsylvania Rules of Civil Procedure and therefore the Motion to Dismiss for Legal
Insufficiency of Pleading (Demurrer) and Motion for a More Specific Pleading are
renewed.
MOTION TO DISMISS FOR LEGAL INSUFFICIENCY
OF PLEADING (DEMURRER)
12. Paragraphs one through twelve are incorporated by reference as if set forth
fully herein.
13. The Plaintiff in this action has brought an action under the Declaratory
Judgment Act seeking relief on the basis that the Defendants had not satisfied their
obligation to the decedent.
14. Plaintiff requests that this Court grant relief on the basis that the
Defendants have been unable to prove that they have satisfied the obligation to the
decedent.
15. The decedent died approximately six months after the payment period had
expired.
16. The decedent filed no action during his lifetime to pursue a delinquency
against the Defendants for non-payment.
17. The Plaintiff has failed to allege sufficient facts upon which this Court
could grant relief.
18. Defendants submit that the insufficiency of a pleading, pursuant to
Pa.R.C.P. 1028(a)(4) warrants dismissal of the Complaint.
WHEREFORE, Defendants, Amos I. Barrick and Deborah Barrick, respectfully
pray that this Court, in consideration of the foregoing Preliminary Objections, issue an
Order sustaining said objection and dismissing Plaintiff's Complaint, along with any
other relief the Court may deem appropriate and just.
MOTION FOR A MORE SPECIFIC PLEADING
19. Paragraphs one through eighteen are incorporated by reference as if set
forth fully herein.
20. Plaintiff has alleged that it is unable to determine whether Defendants
have tendered payment in full, but believes the Defendants have not paid in full.
21. In support of its belief, Plaintiff submits notes from Defendants to decdent
concerning late payments in 2000 and 2001.
22. The operative installment sale agreement, upon which this action is based,
was executed in 1989 and the payment period lasted until 2004, during which time
Defendants maintain that they paid decedent in full.
23. Plaintiff fails to offer any evidence of payment received and does not
acknowledge any such payments, despite the fact that the first correspondence upon
which its belief is based was dated more than ten years after the execution of the
agreement.
24. Defendants are unable to ascertain precisely what the claim of the Plaintiff
is with regard to what it acknowledges as the partial payment of the obligation, and what
obligation it believes is still due and owing at present.
25. Without a more specific pleading, Defendants are unable to offer a
meaningful defense to the Complaint.
26. Defendants submit that pursuant to Pa.R.C.P. 1028(a)(3) that the Court
would be justified in dismissing the Complaint, unless it files a more specific pleading
setting forth the precise basis for its claim.
WHEREFORE, Defendants, Amos I. Barrick and Deborah Barrick, respectfully
pray that this Court, in consideration of the foregoing Preliminary Objections, issue an
Order sustaining said objection and dismissing Plaintiff's Complaint, or directing the
Plaintiff to file a more specific pleading, along with any other relief the Court may deem
appropriate and just.
Respectfully Submitted,
ABOM & KUTULAKIS, L.L.P.
Date -Wayne Me nick, Esquire
Supreme Court I.D. 53150
36 South Hanover Street
Carlisle, PA 17013
(717) 249-0900
CERTIFICATE OF SERVICE
AND NOW, this 29`" day of May, 2008, I, Emily J. Filiberti, of Abom &
Kutulakis, L.L.P., hereby certify that I did serve or cause to be served a true and correct
copy of the foregoing PRELIMINARY OBJECTIONS via first class mail upon the
following:
Andrew H. Shaw, Esquire
200 South Spring Garden Street
Suite 11
Carlisle, PA 17013
Emily J. lib i
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OM &
IUTULAKIS
Wayne Melnick, Esquire
Attorney I.D. No.: 53150
36 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 249-0900
ESTATE OF ALBERT J. DEITCH
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION
NO.: 2006-4136
PRAECIPE OF ENTRY OF APPEARANCE
Please enter my appearance on behalf of the Defendants, Amos I. and Deborah K.
Barrick, in the above-captioned matter.
Respectfully Submitted,
ABOM & KUTULAKIS, L.L.P.
Date Wayne elnick, Esquire
Supreme Court I.D. 53150
36 South Hanover Street
Carlisle, PA 17013
(717) 249-0900
A
V
CERTIFICATE OF SERVICE
AND NOW, this 29 h day of May, 2008, I, Emily J. Filiberti, of Abom &
Kutulakis, L.L.P., hereby certify that I did serve or cause to be served a true and correct
copy of the foregoing ENTRY OF APPEARANCE via first class mail upon the
following:
Andrew H. Shaw, Esquire
200 South Spring Garden Street
Suite 11
Carlisle, PA 17013
Emily erti
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LENORA DEITCH, BARRY J.
DEITCH, AND CHERYL L. KUHN,
ADMINISTRATORS OF THE ESTATE
OF ALBERT J. DEITCH,
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2006-4136
ACTION FOR DECLARATORY JUDGMENT
PRAECIPE TO LIST CASE FOR ARGUMENT
To the Prothonotary: List the within matter for the next Argument Court.
1. Matter to be argued: Defendants' Preliminary Objections
2. Identify all counsel who will argue case:
a. For Plaintiffs:
Andrew H. Shaw, 200 S. Spring Garden St., Suite 11, Carlisle, PA 17013
b. For Defendants:
Wayne Melnick, Abom & Kutulakis, LLP, 36 S. Hanover St., Carlisle, PA 17013
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court date: March 18, 2009
Date: By:
Sup. Ct. I.D. No. 87371
200 S. Spring Garden St., Suite 11
Carlisle, PA 17013
(717) 243-7135
Attorney for Plaintiff
s "
CERTIFICATE OF SERVICE
I, Andrew H. Shaw, Esquire, do hereby certify that a true and correct copy of the
following document, Praecipe To List Case for Argument, was served this date on the
below named, by placing same in the United States mail, first-class, postage prepaid
thereon, addressed as follows:
Wayne Melnick, Esquire
Abom & Kutulakis, LLP
36 S. Hanover Street
Carlisle, PA 17013
Attorney for Defendants
Date: -)
-/ 0
Sup. Ct. I.D. No. 87371
Law Office of Andrew H. Shaw, P.C.
Carlisle, PA 17013
(717) 243-7135 (phone)
(717) 243-7872 (facsimile)
Attorney for Defendant
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ESTATE OF ALBERT J. DEITCH,
Plaintiff
vs.
AMOS I. BARRICK and
DEBORAH K. BARRICK,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 06-4136 CIVIL
ACTION FOR DECLARATORY JUDGMENT
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE HESS, OLER AND GUIDO, J.J.
ORDER
AND NOW, this 2 7• day of May, 2009, the preliminary objections of the
defendants to plaintiff's complaint are OVERRULED.
BY THE COURT,
Andrew H. Shaw, Esquire
For the Plaintiff
? Wayne Melnick, Esquire
For the Defendants
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Kevin . Hess, J.
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_,AB OM '
Nu ULAKIS
Wayne Melnick, Esquire
Attorney I.D. No.: 53150
36 South Hanover Street
Carlisle, Pennsylvania 17013
(717) 249-0900
ESTATE OF ALBERT J. DEITCH
Plaintiff
V.
AMOS I. BARRICK and
DEBORAH K. BARRICK
Defendants
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION
NO.: 2006-4136
ANSWER TO PLAINTIFF'S AMENDED ACTION FOR
DECLARATORY JUDGMENT
AND NOW, this 14`h day of September, 2009, come the Defendants, Amos and
Deborah Barrick, by and through their attorney, Wayne Melnick, Esquire of ABOM &
KUTULAKIS, L.L.P., and present the following Answer to Plaintiff's Amended Action for
Declaratory Judgment, representing as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part, Denied in part. It is admitted that Plaintiffs have brought
this action to determine Plaintiffs' rights to the real estate located at 2147B
Newville Road, Carlisle, Pennsylvania, currently recorded in a deed located in
the Office of the Recorder of Deeds in and for Cumberland County at Record
Book 31-V, Page 644. To the extent the averment alleges that Declaratory
Judgment Act should apply to this matter, it is denied as a conclusion of law.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied. Defendants are unable to assert the truth or falsity of what Plaintiffs
believe. By way of further answer, Defendants deny that they have not paid in
full.
9. Denied as a conclusion of law. To the extent that an answer is required, this
allegation should be deemed denied.
10. Admitted.
11. Admitted.
12. Denied. Defendants are unable to assert the truth or falsity of what Plaintiffs
believe. By way of further answer, Defendants deny that they have not paid in
full.
13. Admitted.
14. Admitted in part, Denied in part. It is admitted that Defendants have failed to
pay property taxes on time on every occasion where such taxes were due. It is
denied that Defendants are in arrears in the payment of property taxes.
15. Admitted in part, denied in part. It is admitted that the property is currently
listed for public sale due to unpaid taxes. It is denied that the taxes are unpaid.
Respectfully Submitted,
ABOM & KUTULAKIS, L.L.P.
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Date ayne el ick, Esquire
Supreme Court I.D. 53150
2 West High Street
Carlisle, PA 17013
(717) 249-0900
CERTIFICATE OF SERVICE
AND NOW, this 14`h day of September, 2009, I, Wayne Melnick, Esquire, of Abom &
Kutulakis, L.L.P., hereby certify that I did serve or cause to be served a true and correct copy
of the foregoing ANSWER TO PLAINTIFF'S AMENDED ACTION FOR
DECLARATORY JUDGMENT via first class mail upon the following:
Andrew H. Shaw, Esquire
200 South Spring Garden Street
Suite 11
Carlisle, PA 17013
Wayne Melnick, Esquire.
FILED-OFFICE
OF '!Mc Pi 1 i' .,\IoTARY
2009 SEr 14 PH 12: 01
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