HomeMy WebLinkAbout06-5797DaN id J. Lanza
I.D. No. 55782
2157 Market Street
Canip Hill, Pennsylvania 17011
(71-/7)730-3775
DAVID A. YOUNG and SALLY ANN YOUNG,
V.
Attorney for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO.6L- 9-7 97 l v (?
CIVIL ACTION - LAW' 'Oki
FRANCIS C. McNAUGHTON and PETER J.
RESSLER individually and t/d/b/a MIDPENN
ESTATES,
Defendants
To the Defendants:
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 attomey and filing in writing with the court your defense or objections to the
claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further notice for any money claimed in the
complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET- LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
David J. Lanza
I.D. No. 55782
2157 Market St.
Camp Hill, Pennsylvania 17011
(717) 730-3775
DAVID A. YOUNG and SALLY ANN YOUNG,
Plaintiffs
V.
FRANCIS C. McNAUGHTON and PETER J.
RESSLER individually and t/d/b/a MIDPENN
ESTATES,
Defendants
Attorney for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 6L - r797 ?t v tCIVIL ACTION - LAW
COMPLAINT
1. Plaintiffs, David A. Young and Sally Ann Young, are adult individuals with an address at 605 Range End
Road, Dillsburg, PA 17019.
2. Defendants, Francis C. McNaughton and Peter J. Ressler., are adult individuals trading and doing
business as Midpenn Estates with a place of business at 4400 Deer Path Road, Harrisburg, Pennsylvania 17110.
3. On or about January 5t', 2005, Plaintiffs and Defendants entered into an Agreement, a true and correct
copy of which is attached hereto as Exhibit "A".
4. The Agreement provided for Plaintiffs to purchase from Defendants the real estate situate at 3461 Market
Street, Camp Hill, Cumberland County, PA (sometimes referred to as "the Premises").
5. Plaintiffs paid to Defendant the sum of $2,100,000.00 pursuant to the Agreement for the purchase of the
aforesaid premises.
6. Plaintiffs fully performed their responsibilities under the Agreement.
7. The parties completed settlement on the above Premises on January 31, 2005.
8. At all material times, Defendants concealed from Plaintiffs materials defects in the premises.
9. At the time of the sale of the Premises to Plaintiffs, the Premises contained Beazer Phenolic foam roof
insulation ("Beazer PFRI").
10. Beazer PFRI is a toxic material that is corrosive to metal and poses a health hazard to individuals.
11. Beazer PFRI releases formic and sulfonic acids which corrode and destroy steel roof decks, result in
severe property damage and represent a hazardous and unsafe condition for owners and occupants.
12. At all material times, Defendants were aware of the existence and presence of Beazer PFRI on and in the
Premises.
1 Prior to the sale of the Premises from Defendants to Plaintiffs, the Defendants and their agents received
notice from Phenolic Consulting ("Phencon"), a court appointed tort claims administrator, of the presence and existence of
the toxic Beazer PFRI on and about the Premises.
14. The aforesaid Beazer PFRI insulation is the subject of multi-party litigation against the manufacturer of
said insulation, Beazer East, Inc., in the United States District Court for the District of Massachusetts as a result of Beazer
PFRI's tendency to destroy metal roofing components, such as the roofing components contained on the premises.
15. Defendants and their agents were notified of the existence of the aforesaid multi-party litigation against
the manufacturer prior to the sale of the premises to Plaintiffs.
16. On or about February 25, 2002 (and subsequent dates) the court appointed notice administrator in the
multiparty litigation invited Defendants, as owners of the Premises, to participate in the multi-party litigation against the
insu lation manufacturer.
17. The litigation in Massachusetts was intended to address only a portion of the costs suffered by various
owners of buildings containing the toxic substance Beazer PFRI.
18. Defendants declined such invitation and refused to take part in the litigation.
19. Defendants chose, instead, to sell the Premises to Plaintiffs.
20. Defendants failed and refused to inform Plaintiffs of the existence of the litigation.
21. Defendants failed and refused to inform Plaintiffs of the communications Defendants had received from
Phencon and other court appointed administrators.
22. Defendants failed and refused to inform Plaintiffs of the existence and presence of Beazer PFRI.
23. Defendants failed and refused to inform Plaintiffs of the danger presented by the toxic insulation and the
costs associated with its removal.
24. The toxic insulation was covered by a rubber roof held in place by stone ballast.
25. Plaintiffs' building inspector could not discover the existence of the toxic insulation in the course of the
pre-settlement inspection due to the existence of the rubber roof and stone ballast covering said insulation.
26. Defendants were aware that Plaintiffs hired an inspector to examine the roof prior to the completion of
the purchase of the Premises.
2?. Defendants were aware that the condition of the roof constituted a material item related to the purchase of
the Premises.
28. Plaintiffs would not have purchased the aforesaid premises at the price set forth in the agreement had they
known of the existence of the toxic insulation.
29. Rather than inform Plaintiffs' of the toxic material in the roof insulation, Defendants completed
settlement on the purchase agreement and accepted $2,100,000.00 for the purchase of the Premises.
30. Subsequent to Plaintiffs' purchase of the aforesaid premises, Defendants continued to conceal the
existence of the Beazer PFRI toxic insulation from Plaintiffs.
31. Subsequent to Plaintiffs' purchase of the Premises, Phencon contacted Defendants in a continuing effort
to convince Defendants to take part in the litigation against the insulation manufacturer.
32. Defendants informed Phencon that Defendants had sold the premises, but refused to inform Phencon of
the identity of the new owners (Plaintiffs), thus hindering Phencon's efforts to address and remedy the presence of Beazer
PFRI at the premises.
33. Only after Phencon discovered Plaintiffs' identity through Phencon's own independent investigation, was
Phencon able to contact Plaintiffs and inform them of the existence of the toxic insulation.
34. Defendants' refusal to inform Plaintiffs of the existence of the toxic Beazer PFRI and the harmful effects
thereof increased the damage to the premises and the danger to the occupants thereof.
35. Defendants' failure and refusal to inform Phencon of Plaintiffs' identity, despite Phencon's attempt to
discover the identity of the purchaser (Plaintiffs) delayed Phencon's attempts to inform Plaintiffs of the existence and
harniful effects of Beazer PFRI and increased the damage to the premises and the danger to the occupants thereof.
36. Unknown to Plaintiffs, the toxic Beazer PFRI insulation damaged and corroded the metal components of
the roof, thus requiring replacement of the roof.
37. Plaintiffs, as a consequence of Defendants' conduct set forth above, were forced to replace the roof in
order to remove the Beazer PFRI and replace and repair the corroded metal components.
38. Plaintiffs, as part of the roof removal and replacement, were required to incur costs for removal of debris,
building materials and roof ballast.
39. Plaintiffs, as a consequence of Defendants' conduct set forth above, were forced to move and service
several roof air conditioning units as part of the replacement of the roof.
40. Plaintiffs were forced to rent temporary replacement air conditioning units while Plaintiffs moved the
existing air conditioners and replaced the roof.
41. Plaintiffs, as a consequence of Defendants' conduct set forth above, were forced to incur interest charges
and related costs associated with borrowing the funds necessary to pay for the roof replacement.
42. Plaintiffs, as a consequence of Defendants' conduct, were forced to hire experts and other professionals
for the purpose of determining the extent of the damage to the roof from the Beazer PFRI.
43. Plaintiffs, as a consequence of Defendants' conduct, have been forced to incur ongoing attorney fees.
Count I.
Breach of Contract
44. Plaintiffs incorporate the averments of ¶¶ 1-43 as if set forth in full.
45. Defendants' failure to inform Plaintiffs of the presence of toxic Beazer PFRI at the premises constitutes
breach of contract.
46. As a result of the aforesaid breach, Plaintiffs have suffered damages as set forth above.
47. Plaintiffs have demanded reimbursement from Defendants, but Defendants have refused to entertain
any such demands.
Wherefore, Plaintiffs demand judgment against Defendant in an amount exceeding $50,000.00, plus costs,
attorney fees and interest.
Count H.
Fraudulent misrepresentation
48. Defendant incorporates the averments of ¶¶ 1- 47 as if set forth in full.
49. Defendants' conduct, as set forth above, constitutes fraudulent misrepresentation.
50. In the alternative, Defendants' conduct constitutes negligent misrepresentation.
51. Defendants bore a duty to disclose the existence, presence and inherent danger of Beazer PFRI to the
Plaintiffs.
52. Defendants were aware of the presence of Beazer PFRI (and the harmful effects thereof) for a period of
almost three years prior to Plaintiffs' purchase of the Premises.
53. As set forth above, Defendants failed and refused to disclose to Plaintiffs any information about the
pmence of Beazer PFRI on the Premises, the litigation surrounding the aforesaid toxic substance or the dangers inherent
in flris substance.
54. Defendants' failure to disclose the presence of Beazer PFRI at the Premises and the related litigation was
55. In the alternative, Defendants' failure to disclose the presence of Beazer PFRI at the Premises and the
rebated litigation constituted negligence.
56. Plaintiffs acted in reliance on Defendant's failure to disclose the presence and harmful effects of Beazer
PFRI.
57. Plaintiffs have suffered damage as set forth above as a result of their reliance on the aforesaid
misrepresentations.
58. The aforesaid misrepresentations have delayed necessary repairs and increased damage to the premises.
59. Defendants' conduct, and that of their agents, was intentional and committed with reckless disregard for
the potential health and financial consequences to those who purchased and occupy the Premises.
60. Plaintiffs are entitled to collect punitive damages as a result of Defendants' conduct.
Wherefore, Plaintiffs demand judgment against Defendant in an amount exceeding $50,000.00, plus costs,
interest, punitive damages and attorney fees.
By:
David J. Lanza
Attorney I.D. No. 55782
2157 Market Street
Camp Hill, PA 17011
Telephone (717) 730-3775
Attorney for Plaintiffs
VERIFICATION
I, David Young, verify that the statements made in the foregoing Complaint is true and correct to the best of my
kno vledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.
C.S §4904 relating to unsworn falsification to authorities.
r
o By:
Date : C\\
Davi Yo ng
AGREEMENT FOR THE SALE OF COMMERCIAL REAL ESTATE A/S-C
This lorm recommended and approved for, but not restricted to use by, the members of the Pennsyhania Association of REALTOR50 (PAR).
SELLER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
LADDRESS____.:_ R (Company) N/A PHONE
FAX IS THE AGENT FOR SELLER. Designated Agent(s) for Seller, if applicable: OR
NOT the Agent for Seller and is a/an: ? AGENT FOR BUYER ? TRANSACTION LICENSEE
BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER (Company) 1 /A PHONE
ADDRESS, r
' FAX
BROKER:IS THE AGENT FOR BUYER. Designated Agent(s) for Buyer, if applicable:
OR
Broker is NOT the Agent for Buyer and is a/an: ? AGENT FOR SELLER ? SUBAGENT FOR SELLER ? TRANsACTim LICENSEE
When the same Broker "Agent for Seller and Agent for Buyer, Broker is a Dual Agent. All of Broker's licensees are also Dual Agents UNLESS
there ate. se Tater Dpsignated/lgents for Buye,,and Seller., If the same Licensee is designated for Seller and Buyer, the Licensee is a Dual AgepL
1. dhis`Agreement, dated January 5, 2005 is between 1
2 SELLER(S): "!idpenn Estates, a Pennsyjtvania Partnership
4400 Deer Path Road, Dauphin County, Harrisburg, PA 2
4 3 ;
called "Seller,- and 4
5 BUYER(S). David A. Young and Sally Ann Young, huabard ,wife,
6' 605 Range End Road s
,17 Dillsbur "Cumberland County, PA called"BuyeO 7
'a " 2.' PROPERTY.' Seller here by agrees to sell and convey to Buyer, who hereby agrees to purchase:
.. 8
9 ALL THAT CERTAIN lot or piece of ground with buildings and improvements thereon erected, if any, known as: g
10 3461 Market Street, Camp Hill, Cumberland Count-i. Pennsylvania 17011 10
11 (See Legal Description Attached - Exhibit "A") 11
12 in the BorouFh of Camp Hill County of Cumberland 12
13 Commonwealth of Pennsylvania, Zip Code 17011 13
14 Identification (e g, Tax ID #; Parcel #; Lot, Block; Deed Book, Page, Recording Date) 14
15 Tax Parcel #01-21-0275-056 ;
15
16 1-3.{TERDS(1001)
17 (' '(A)` Purchase`Price' Two -Million4 fhte Hundred Thousand ($2,100,000.00) 16
.[v .? c•:. ,.? US. Dollars n
'8 1V t,: ri?which will be paid to Seller by Buyer as follows: 1a , 11 19 (1) Cash or check at signing this Agreement: S 25, 000.00 19,
20 (2) Cash or check within days of the execution of this Agreement: S
Mate _- Lf .L _ 111 < Le`_ae
2? '?r (
a ,t(? 5.?CfC' r-V?iV 5-_-'--?SQ(3-,-OVVTVI/.._..
23• : 11.1,.0)4 Fasft;,cashier's pr certified check at time of settlement: on or before W/317/05 5.. ,I , t3 75, 000, 00 gut
u 'T` 1 y. 4 1l '.7. TOTAL S 2,100,000200 24 J:1
25 (B) Deposits paid on account of purchase price to be held by Broker for Seller. unless otherwise stated here: 25
26 Deposit to be held by Attorney for Buyer - John " Eakin
27 (C) Sellers written approval on or before: January 15, 2005
28 (D) Settlement to be on Janu ; ` f' /, ,? c Zr+ ?: , c . or before if Buyer and Seller agree.
29. (E) Conveyance from Seller will be by fee simple deed of special warranty nless otherwise stated here:
rxt n, ri •nov? a. w. -ail, it b .:16 .. is s+a . ;v> •+' 1 t•. .. r, r+ ` , at ti 29i
30
3Q
0 .?(F) Payument _of transfer taxes will be. divided equally between Buyer and Seller unless otherwise stated hue: y 31 1 1 N' 32 3z
32 :.,,i, .tU of settlegtent,.the following wi4t;be adjusted pro-rata on a daily,basis between Buyer and Seller, reimbursing where applicable t •331
34 taxes (see Notices and Information Regarding Tax Proration); rents; interest on mortgage assumptions; condominium fees. if any; water 34
35 and/or sewer fees, if any; together with any other lienable municipal service. The charges are to be pro-rated for the i
Period(s) covered: 35 ,
36 Seller will pay up to and including the'date of settlement; Buyer will pay for all days following settlement, unless otherwise stated here: 36 1
37 37
38''nr'• (i)'!Buyer'shall reimburse Seller for the actual costs of any remaining heating, cooking ofblher fuels stored on the Property at the time of-' 38
39h:'n tirJ resettlement; unless'otherwise'stated here:°t " i 39
40 4. FIXTURES & PERSONAL PROPERTY (1-00) nr th
40
)? nit (A) INCLUDED i q this sale and purchase+price are all existing items permanently installed in the Property, free of liens, including plumbing;+ 41,
n ir1 {iHVAC equipment; lighting fxtums (including chandeliers and ceiling fans); and water treatment systems. unless otherwise stated below; 42
43 Also mcluded:' Assip_,;tments ofpermits, approvals and'licenses; Leases; Service Contracts;
44 Security Deposits, Advance Rents, if any
45 (B) LEASED items: u
45
46
Art Work; 46
47 (C) EXCLUDED fxturesanditerns: Janitorial supplies/equipment a
48
49 5. SPECIAL CLAUSES: 49
49
Sg (A) The following are part of this Agreement if checked: 50
51 ? ?
52 ? ? 51
53 (B) SPECIAL PROVISIONS (IF ANY): 53
53
54
55 It is agreed and understood that the storage facilities 55
presently being used by 55
56 the Seller will be offered to Seller for its extended use, at no charge, through 55
Sr May 31, 2005.
57
58 59
58 Buyer Initials: :1 .-"•- A/S-C Page 1 of S •'"•/
Seller Initials: 59
Pennsyyl1vania on of COPYRIG&rr Pt= WYL A,Nu assocunoN of REAL3'ORS0 2wt=
® REALTORS* 1110[ l
REAL100
aY,lb Yt V IYYY?Y,wq,??
`i
60 6.' POSSESSION (5-01) ?1i0 l
rt a (A) Possession is to be delivered by deed, keys and:
1. Physical possession to vacant Property free of debris, with all structures broom clean, at day and tide of settlement UNLESS ts!•;;?;
r3 wise stated here: , ANDR;??';• r 1.
r,4 2 Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is leased at
65 _ cudon of this Agreement or unless otherwise specified here: A` It Settlement /Closing 66
57 w Buyer will acknowledge existing lease(s) by initialing said lease(s) at time of signing this Agrrigment if Property is leased T
- 67.
68 (B) Seller will not enter into any new leases, written extension of existing leases, if any, or additional !cases for-the Proputy-withoatwnt-rT-61 !
4 .1
G9 ten consent of the Buyer.
7o 7. DATE.S/fIME IS OF THE ESSENCE (5-01) Lt- 70
71 (A) The said date for settlement and all other dates and times referred to for the performance of any of the obligations of tht;Agwc r
72 hereby agreed to be of the essence of this Agreement..
. } 73 x
73 (B) For the purposes of this Agreement number of days will be counted from the date of execution, by • excluding thcdrY this M' .
74 was executed and including the last day of the time period. a •, > '• 74 "
75 (C) The date of settlement is not extended by any other provision of this Ag=ai.T!and !nay only be extended by watr??temeot of thG arties 75._
76 & FINANCING CONTINGENCY (5-01) 7i .<-."'?+.•..i?• _ j .76
77 EY.- V17i4f FSB-ThiSsMe is N ?
ra ELECTED is --'y
79 /(A) This sale is contingent upon Buyer obtaining financing as follows:' 4 ?? .. m
$
80 1: Aroounfof loan
x et 2. Minimum Term f)-,O' years
82 3. Type of loan Z) 7ft'? Z
93 4. Buyer agrees to accept the interest rate as may be commi by the lender?% to exceed a maximunL i2m mst rate u
r;..
84 (B) Within 10 days of the execution of this Agreement Buyer will make a completr e'.ivritteu application toza respoosibk ]coded 9 • ft , . +
85 the terms above. The Broker for Buyer, if any, otherwise the Broker for Seller, is authorized to communicate Kith the lender lkll;ei, : 85
86 purposes of assisting in the loan process. 65
t
37 (C) 1. Upon receipt of a financing commitment, Buyer will promptly deliver a copy of the commitment to Seller
Unless
'?t8
as 2. Financing commitment date
dOpo64t - i
82 otherwise agreed to in writing by Buyer and Seller, if a written commitment is not received by Seller, by the above date. all
g0 monies paid on account ofPurchase price will be returned promptly to Buyer and this Agreement will be VOID. Buver•will be '
91 sible for any premiums for mechanics lien insurance and/or title search, or fee for cancellation of same, if any. AKD/OR any ptani- 1t';
92 urns for flood insurance and/or fire insurance with extended coverage, insurance binder charges or cancellatiom fee, if any, ANOIOR _ x;52. _
93 any appraisal fees and charges paid in advance to lender. 93
94 9. ZONING CLASSIFICATION 14..
3
95 Failure of this Agreement to contain the zoning classification (except in cases where the property (and each parcel thereof, if subdividable) . y9S _
i 96 is zoned solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer: ind; if voided; 16 ,
97 any deposits tendered by the Buyer will be returned to the Buyer without any requirement for court action. s 97,
98 Zoning Classification. HDRO -High Density ResidentLal Office
}
99 10. ZONING CONTINGENCY (5-01) 99-
t00 M WAIVED .100
'f 101 )r XZMD. Within days of the execution of this Agreement by all parties, Buyer will verify that the proposed use of the Yroperty 101;
'Mor 102 y as is permitted In the event the proposed use is not permitted. Buyer will, within thi time ??02
103 given for verification, notify Seller in writing that the proposed use of the Properly is not permitted and Buyeryrjll (check only one):103 '-i;
104 ? Option 1. Within the time for verifying the zoning classification, notify Seller, in writing, of Buyer's decision of proceed with the .c• 154
105 purchase of the Property or terminate the Agreement. Shotdi4Buyer elect to terminate the Acreement all deposit monies paid oa 105:' `
106 account of purchase price will be returned promptly to Buyer and this Agreement will be VOID. Failure of Buyer to provide writ =.105 •1!
107 ten notice of Buyer's decision will constitute a WAIVER of this contingency and Buyer accepts the Property and agrees to the -107 cf1,
toe RELEASE set forth in paragraph 25 of this Agreement- 106 ,
109 ? Option 2. Make application for approval (or variance/non-conforming use/conditiona_1_usJ-special exception) from log ;
110 (municipality) to use the Property as
', 1tt (Proposed use). ^ •_ 111
t• 112 (A) Such application will be made on or befo t'112
i
113 (B) Buyer will pay for applications, legal fees, engineering-and any other cost asrCOiiated with obtaiiniggapprovaL 113
114 (C) [f the municipality requires the application to be signedyy the currentrovvt3q Seller agrees to do SO., tit
.?..
115 (D) If a final, unappealable approval is not obtained by . all deposit .115
116
115 monies paid on account of purchase price will be returned promptly`to Buyer and this A_srcement will be VOID.-
117 11. STATUS OF 1VATER (5-01) '117 i
118 Seller represents that Property is served by: - •+: 118
v 119 MDPltblic water •? r '~ •?.?
120 ? On-site water
• 121 ? Community Water -
1
4a' 12z ? None 112
123 ? i 123
Seller further warrants that the system(s) is/are frilly paid for as of the execution date of this Agreement. +<- ?:: `f. ?' 124 I
tzs 12. STATUS OF SEWER (5-01) 125 ;t
126 Seller represents that Property is served by: 126 j
127 COPublic Sewer - 127
12a ? Community Sewage Disposal System 128
a 129 = ? Off-Property Sewage Disposal System 129
130 r' ? Individual On-Lot Sewage Disposal System (See Sewage Notice I) 139
131 ? Individual On-Lot Sewage Disposal System in Proximity to Well (See Sewage Notice 1; see Sewage Notice 4, if applicable) 131
132 - ? Ten-acre Permit Exemption (See Sewage Notice 2) 7132 j ? .
4,.1 ;133 t
133 ? Holding Tank (See Sewage Notice 3)
134 ? None (See Sewage Notice 1)
135 ? None Available (See Sewage Notice S or Sewage Notice 6, as applicable)
136 - ? 41'736:_?
:h1,: 137 Seller further warrants that the system(s) is/are fully paid for as of the execution date of this Agreement. '? 137
138
139 139
t Q 140 Buyer Initials:. A/S-C Page 2 of 5 Seller Initials: 140
141
PROPERTY DEFECTS DISCLOSURE (10-01)
(A) Seller represents and warrants that Seller has no knowledge except as noted in this Agreement that: (I) The premises have been con- it2
taminated by any substance in any manner which requires remediation; (2) The Property contains wetlands, ?oo d plains, or any other 143
environmentally sensitive areas, development of which is limited or precluded by law; (3) The Property contains asbestos, polychlori- 144
nated biphenyls, lead-based paint or any other substance, the removal or disposal of which is subject to any law or regulation; and 145
(4) Any law has been violated in the handling or disposing of any material or waste or the discharge of any material into the soil, air. 146 147
surface water, or ground water.
(B) Seller and Buyer acknowledge that any Broker identified in this Agreement: (1) Is a licensed real estate broker, (2) Is not an expert in 148
construction, engineering, or environmental matters; and (3) Has not made and will not make any representations or warranties nor con- 149
duct investigations of the environmental condition or suitability of the Property or any adjacent property, including but not limited to 150 151
those conditions listed in paragraph 13(A).
(C) Seller agrees to indemnify and to hold Broker harmless from and against all claims, demands, or liabilities, including attorneys fees and 152
court costs, which arise from or are related to the environmental condition or suitability of the Property prior to. during. or after Seller's 153
occupation of the Property including without limitation any condition listed in paragraph 13(A). 154
155
(D) The provisions of this Section will survive the performance of this Agreement.
L NOTICES AND ASSESSMENTS (5-01) 156
(A) Seller represents as of Seller's execution of this Agreement, that no public improvement, condominium or owner association assessments 157
have been made against the Property which remain unpaid and that no notice by any government or public authority has been served iss
upon Sellcr or anyone on Seller's behalf, including notices relating to violations of zoning, housing. building, safety or fire ordinances 159
which remain uncorrected, and that Seller knows of no condition that would constitute violation of any such ordinances which remains 160 161
uncorrected, unless otherwise specified here: 161
163
(B) Seller knows of no other potential notices (including violations) and assessments except as follows: 163
(C) Any notice of improvements or assessments received on or before the date of Seller's acceptance of this Agreement, unless improve- 165
ments consist of sewer or water lines not in use, shall be the responsibility of the Seller, any notices received thereafter shall be the 166
167
responsibility of the Buyer.
(D) If required by law, Seller will deliver to Buyer, on or before settlement, a certification from the appropriate municipal department or ; 9
departments disclosing notice of any uncorrected violation of zoning, building, safety, or fire ordinances-
(E) Buyer is advised that access to a public road may require issuance of a highway occupancy permit from the Department of Transportation. 170
171
S. TITLE AND COSTS (1-00)
(A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HO«EvFR the following. 172
existing deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances. easements of roads, easements 173
visible upon the ground, easements of record, privileges or rights of public service companies, land use restrictions pursuant to property 174
enrollment in a preferential tax program if any; otherwise the title to the above described real estate will be good and marketable and such 175
176
as will be insured by a reputable Title Insurance Company at the regular rates.
(B) In the event Seller is unable to give a good and marketable title and such as will be insured by a reputable Tide Insurance Company at 177
the regular rates, as specified in paragraph 15(A), Buyer will have the option of: (1) Taking such title as Seller can give, with no change 179
to the selling price; or (2) Being repaid all monies paid by Buyer to Seller on account of purchase price and being reimbursed by Seller 179
for any costs incurred by Buyer for those items specified in paragraph 15(C) and in paragraph 15(D) items (1). (2). (3). in which case 180
there will be no further liability or obligation 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 102
adequate legal description of the Property (or the correction thereof), will be secured and paid for by Sella However, any survey or 183
surveys desired by Buyer or required by the mortgage lender will be sectored and paid for by Buyer. 194
(D) Buyer will pay for the following: (1) Title search, title insurance and/or mechanics lien insurance or fee for cancellation of same, if any; 165
(2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, and cancellation fees, if any. (3) Appraisal fees 156
and charges paid in advance to mortgage lender, if any; (4) Buyer's customary settlement costs and accruals. 1197
68
16. COAL NOTICE 189
XKK • NOTAPPLICABLE
? APPLICABLE. THIS DOCUMENT MAY NOT sFL., CONVEY. TRANSFER, LNCLUDE OR INSURE IME TITLE M THE CON. A%D RIGHTS OF SUPPORT UNDER- 190
NEATH T1 fE SURFACE LAND DESCRIBED OR REFERRED TO HEREIN. AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COW EZE LEGAL 191
RIGHT To REMOVE ALL SUCH COAL AND IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AM ANY MUSE. BULW4G OR 192
OTTER STRUCTURE ON OR IN SUCH LAND. (This notice is set forth in the manner provided in Section 1 of the Act of July 17, 1957, P.L. 935.) 193
"Buyer acknowledges that he may not be obtaining the right of protection against subsidence resulting from coal mining operations, and 194
that the property described herein may be protected front damage due to mine wbsidence by a private contract with the owriers of the eco- 195
nomic interests in the coal. This acknowledgement is made for the purpose of complying with the provisions of Section 14 of the Bituminous- 196
Mine Subsidence and the Laird Conservation Act of April 27, 19616." Buyer agreestb`sign the deed from Seller which deed will contain the 1998
aforesaid provision. 199
17. TAX DEFERRED EXCHANGE (10-01) 299
? NOTAPPLICABLE
XKk- APPLICABLE In the event Seller wishes to enter into a tax defend exchange for the Property pursuant to Sectm 1031 of the Internal 201
Revenue Code, Buyer agrees to cooperate with Seller in connection with such exchange, including the execution of such documents as may 202
be reasonably necessary to conduct the exchange, provided that these shall be no delay in the agreed-to settlement date, and that any addi- 203
tional costs associated with the exchange are paid solely by Seller. Buyer is aware that Seller anticipates assigning its interest in this -204
Agreement to a third party under an Exchange Agreement and does hereby consent to such assignment Buyer shall not be required to exe- 2115
cute any note, contract, deed or other document providing any liability which would survive the exchange. nor shall Buyer be obligated to 206
take title to any property other than the Property described in this Agreement. Seller shall indemnify and hold harmless Buyer against any 207
liability which arises or is claimed to have arisen from any aspect of the exchange transaction. 208
209
I& COMMERCIAL CONDOMINIUM (10-01) 210
XM NOTAPPLICABLE
? APPLICABLE. Buyer acknowledges that the condominium, unit to be transferred by the terms of this Agreement is intended for nonresi- 211
den" use, and that Buyer may agree to modify or waive the applicability of certain provisions of the Uniform Condominium Act of Z12
213
Pennsylvania (68 Pa C.S. §3101 et. seq.).
5
19. RECORDING (5-01) This Agreement will not be recorded in the Office of the Recorder of Deeds or in any other office or place of public n214
record. If Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Argreemeni
20. ASSIGNMENT (3-85) This Agreement will be binding upon the patties, their respective heirs, personal representatives, guardians and suc- 216
censors, and, to the extent assignable, on the assigns of the parties hereto. It is expressly understood. however. that the Buyer will not transfer or Z17
assign this Agreement without the written consent of the Seller. Zia
Z19
26-
4?,pjk_;
221
Seller Initials:
222 21. DEPOSIT AND RECOVERY FUND (1-00) ZZ2
223 (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 223
224 payment and the person designated as payee, will be paid in U.S. Dollars to Broker or party identified in paragraph 3(B), who will retain 224
225 'diem in an escrow account until consummation or termination of this Agreement in conformity with all applicable laws and regulations. 225
226 Any encashed check tendered as deposit may be held pending the acceptance of this offer. 226
227 (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 227
228 State Real Estate Commission (49 Pa. Code §35.327) to retain the monies in escrow until the dispute is resolved. In the event of litiga- 228
229 tion for the return of deposit monies, a broker will distribute the monies as directed by a final order of court or the written agreement of 229
238 the parties. Buyer and Seller agree that, in the event any broker or affiliated licensee is joined in litigation for the return of deposit 230
231 monies, the attorneys fees and costs of the broker(s) and licensee(s) will be paid by the party joining them- 231
232 (C) AReal Escrte Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate 232
233 licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who has been unable to collect the judgment after Z33
234 exhausting all legal and equitable remedies. For complete details about the Fund, call (717) 783-3658, or (800) 8'2'.-1.113 (within 234
235 Pennsylvania) and (717) 783-4854 (outside Pennsylvania). 235
236 22. MAINTENANCE AND RISK OF LOSS (5-01) Z36
237 (A) Seller will maintain the Property, and any personal property specified herein, in its present condition. normal wear and tear excepted. 237
z 238 (B) Seller will promptly notify the Buyer if, at any time prior to the time of settlement, all or any portion of the Property is destroyed, or Z38
239 damaged as a result of any cause whatsoever. 239
20 (C) Seller will bear risk of loss from fine or other causes until time of settlement. In the event that damage to any property included in this 240
241 sale is not repaired or replaced prior to settlement, Buyer will have the option of rescinding this Agreement and receiving all monies 241
242 paid on account or of accepting the Property in its then condition together with the proceeds of any insurance recovery obtained by Seller. 242
243 Buyer is hereby notified that he/she may insure his/her equitable interest in this Property as of the time this Agreement is accepted. 243
244 23. CONDEMNATION (5-01) 244
245 Seller has no knowledge of any current or pending condemnation or eminent domain proceedings that would affect the Property. If any por- 245
246 tion of the Property should be subject to condemnation or eminent domain proceedings after the signing of this Agreement. Seller shall imme- 246
247 diately advise Buyer, in writing, of such proceedings. Buyer shall have the option to terminate this Agreement by providing written notice to 247
248 Seller within fifteen (15) days after Buyer learns of the filing of such proceedings, in which case Seller shall return to Buyer all money paid 248
249 on account of the purchase price by Buyer. Buyer's failure to provide notice of termination within the time stated will constitute a 249
250 WAIVER of this contingency and all other terms of this Agreement remain in full force and effect. 250
251 24. WAIVER OF CONTINGENCIES (1-00) 251
252 In the event this Agreement is contingent on Buyer's right to inspect and/or repair the Property. Buyer's failure to exercise any of Buyer's 252
253 options specified in the contingency provision(s) within the time limits will constitute a WAIVER of that contingency and Buyer accepts Z53
254 the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement. 254
256 25. RELEASE (1-00) Buyer hereby releases, quit claims and forever discharges SELLER. ALL BROKERS, their LICENSEES, EMPLOY- 256
257 EES, and any OFFICER or PARTNER of any one of them and any other PERSON, FIR.NI, or CORPORATION who may be liable by 257
258 or through them, from any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and 258
259 all of the consequences thereof, whether now known or not, which may arise from the presence of termites or other w ood-boring insects, 259
268 radon, lead-based paint hazards, environmental hazards, any defects in the individual on-lot sewage disposal system or deficiencies in 260
261 the on-site water service system, or any defects or conditions on the Property. This release will survive settlement- 261
262 26. REPRESENTATIONS (5-01) 262
263 (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seiler, 263
264 Brokers, their licensees, employees, officers, or partners are not a part of this Agreement unless expressly incorporated or stated in this 264
265 Agreement. It is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other 255
q
;Y 266 terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. 266
261 Furthermore, this Agreement will not be altered, amended, changed or modified except in writing executed by the parties. 267
268 gl (B) It is understood that Buyer has inspected the Property before signing this Agreement (including fixtures and any personal prop- 268
269 erty specifically scheduled herein), or has waived the right to do so, and has agreed to purchase it in its present condition unless 269
278 otherwise stated in this Agreement. Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not Z70
271 made an independent examination or determination of the structural soundness of the Property, the age or condition of the com- 271
272 ponents, environmental conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor 272
273 have they made a mechanical inspection of any of the systems contained therein. Z73
274 (C) Broker(s) may perform services to assist unrepresented parties in complying with the terms of this Agreement 274 -
275 (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraphs- 275
276 27. DEFAULT (1-00) Z76
¢277 Should Buyer. Z77
io i. 278
.
(A) Fail to make any additional payments as specified in paragraph 3; OR
al
i
th
B
er's le
h
l
d
if
k
f
B
l
'
f
ll
B
S
271
279
79
C any, concern
ng
e
uy
g
or t
e
en
er,
er
or
uye
!
or
e
er,
ro
(B) Furnish false or incomplete information to Seller, Broker
80 or financial status, or fail to cooperate in the processing of the loan application, which acts would result in the failure to obtain the 280
281 approval of a loan commitment; OR
282 (C) Violate or fail to fulfill and perform any other terms or conditions of this Agreement; 282
283 then in such case, Seller has the option of retaining all sums paid by Buyer, including the deposit monies. 1) on account of purchase 283
'1284 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 2"
285 otherwise checked below. 215
j '.286 Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages. - 286
,',281 If Seller elects to retain all sums paid by Buyer, including deposit monies, as liquidated damages. Buyer and Seller will be released from 217
. X288 further liability or obligation and this Agreement will be VOID. 218
289 2& CERTIFICATION OF NON-FOREIGN INTEREST (10-01) 282
'- 290 ? Seller IS a foreign person, foreign corporation, foreign partnership, foreign trust, or foreign estate subject to Section 1445 of the Infe nal 290
291 Revenue Code, which provides that a transferee (Buyer) of a U.S. real property interest must withhold tax if the transferor (Seller) is a 291
292 foreign person. 292
293 X)® Seller is NOT a foreign person, foreignr corporation, foreign partnership, foreign trust, or a foreign estate as deferred by the Internal 293
291 Revenue Code, or is otherwise not subject to the tax withholding requirements of Section 1415 of the Internal Revenue Code. To inform 294
295 Buyer that the withholding of tax is not required upon the sale/disposition of the Property by Seller. Seller hereby agrees to furnish 295
296 Buyer, at or before closing, with the following: 296
297 ? An affidavit stating, under penalty of perjury, the Seller's U.S. taxpayer identification number and that the Seller is not a foreign 297
j 298 person. 298
299 ? . A "qualifying statement," as defined by statute, that tax withholding is not required by Buyer. Z99
300 E3 ', Other. 300
j 301 Seller understands that any documentation provided under this provision may be disclosed to the Internal Revenue Service by Bu) er, and that 301
302 any false statem • ntained therein could result in punishment by fine, imprisonment, or both.
7 303 Buyer Initials: A/S-C Page 4 of Seller Initials: Z2W 303
I
304. 29. ARBITRATION. OF DISPUTES (1-00) Buyer and Seller agree to arbitrate any dispute between them that cannot be amicably resolved. After 304„ -?
305 written demand for: arbitration by either Buyer or Seller, each party will select a competent and disinterested arbitrator. The two so selected.will
306 '. select a third. If selection of the third arbitrator cannot be agreed upon within 30 days, either party may request that selection be made by a _3p6;Sz4.
307 ,rydgt•of a court of record in the county in which arbitration is pending. Each party will pay its chosen arbitrator, and bear equally expenseafor
308 the third and all other expenses of arbitration. Arbitration will be conducted in accordance with the provisions of Pennsylvania Common Law Sot s
309 Arbitration 42 Pa. C.S.A. §7341 et. seq. This agreement to arbitrate disputes arising from this Agreement will sur-% ive settlement. ^L('
310 30. BROKER INDEMNIFICATION (10-01)
311 Buyer and Sellcr represent that the only Brokers involved in this transaction are: 1 s-- +
Cow
312 1W
313 and that the transaction has not been brought about through the efforts of anyone other than sai4_Brokers. It isagieed that itauyr 3tis
314 brokerage commissions or fees are ever made against Buyer or Seller in connection with thij_ transactitln. to kipa 'atafl p ;Ns'own I rte ?+
315 fees and costs in connection with such claims. It is further agreed that Buyer and Seller agreeto indemnify attd_ bold harmless each o 315
316 the above-listed Brokers from and against the non-performance of this Agreement by either party. and from any claim of lose or cl r 316. ,
317 brokerage commissions, including all legal fees and costs, that may be made by any person or entity. This paragraph shall survive setI t_ 317 i
318 31. GOVERNING LAW (10-01) -- ° ='
318
<+
319 This,Agreement shall be construed and interpreted in accordance with the laws •pf, the Commonwealth of Penns) lvauia. 319 i
320 32. NOTICE BEFORE SIGNING (5-01)-
321. Buyer and Seller-acknowledge that. Brokers have advised them to con+lt•arld retain expert s _ ' ta?of thi - I
322 Agreement and the completion of the sale, as well as the condition and/or legalit r.W 4w Prope ?trrcludiug,but nor imited to, the PtoQerty's
323 improvements, equipment, soil, tenancies, title and environmental aspects. Retain by facsimile tran.mission (FAX)of this Agreement, and 323
324 all addenda, hearing the signatures of all parties, constitutes acceptance of this Agreement. 324 {
325 33. NOTICE k+R 325
326 All notice requirements under the provisions of this Agreement or by application of statutory or common law will be addressed to the avu'ro- 326 7
327 priate party, at the addresses listed below via any means of delivery as mutually agre . ad u y the parties: stated here327
326
329 IftoSeller. Midpenn "states 4400 Deer Path Road, Suite 201, AarrisburZ, PA 171101 4"M
330 (717) 234-4000 - _ ?;:> -33D r
;?.
331 With a copy to: Peter J. Ressler 3401 ?+orth Front Street Aarrisbur PA 2 17110
332 (717) 232-5000 s` '
333 If to Buyer David A. and Sall Ann Young 605 Range End Road Dillsburc PA 17019'
334 (717) 432-1039
33s With acopy to: John 71. Eakin Main & Market Streets, Mechanicsburg, PA -17055 335 (717) 86603172'
337 XEX Buyer has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35336.
338 ? Buyer has received a statement of Buyer's estimated closing costs before signing this Agreement ! 33i
339 ? Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller is holding deposit money) before 41.3
340 signing this Agreement
341 Buyer acknowledges receiving a copy of this Agreement at the time of signing. " .= 34
342 /1'•h ii, a i, _312
343 WTTNESS/ATTEST BUYER ?` Yl Ut DATE: 310'_i
344 BUYER(S) NAME + i SCm #
345 Mailing Address _-14
345 Phone #s FAX # E-Mail 6
347 .r .:
348 WITNESS/ATTEST.2 • t t, -ir BUYER--, i i DATE 1- i J C3
349 BUYER(S) NAME A L -4 I 11 V tr';l I U G SS/TI4
350 Mailing Address •O e-- -5- P
351 Phone #s FAX # E-Mail
352
353 WITNESS/ATTEST BUYER DATE
351-.?
354 BUYER(S) NAME SS/TI # 354
355 Mailing Address
?.,.
1% Phone #s FAX # -P E-Mail 356
t
357+?i
.357
358 ? . Seller has received the Consumer Notice as Adopted by the State- Estate Commission at 49 Pa. Code'
§35336._ 35t
359 ? Seller has received a statement of Seller's estimated closing coats befom. signing this Agreement ?_ X59
360
351 VOLUNTARY TRANSFER OF CORPORATE ASSETS (if applicable): Thq?und*igned acknowledges that he/she is .161E
a»tj.kp-
36z rued by the Board of Directors to sign this Agreement on behalf of the Seller.corporation and that this sale does not constitute a
363 sale, lease, or exchange of all or substantially all the property and assets of the corporation, such as would require the authorization
364 or consent of the shareholders pursuant to 15 P.S. § 1311.
365
366 SELLER'S ACCEPTANCE: Seller hereby accepts the above contract this (date) z
=-`-
367
368 WITNESS/ATTEST SELLER
DATO'!A' '
369 SELLER(S) NAME SS/IT #
370 Mailing Address
371 Phone #s FAX # E-Mail
37z - '
373 WITNESS/ATTEST SELLER DATE
374 SELLER(S) NAME SS/IT #
375 Mailing Address
r, 376 Phone #s "'- FAX # E-Mail
,377
37a WTTNESS/ATTEST•- SELLER DATE
379 SELLER(S) NAME SS/1'1 #
380 .. - Mailing Address_
-7381 Phone #s FAX # E-NWI
392 A/S-C Page 5 of 5
365
367
3W
366
370
371
m
373
374
375
376
377
378
379
366
381
382
COPY
W
"t.
O
FJ
fT
?•-3
i
Ill ?-?_.
=urn VJ
DAVID A. YOUNG and
SALLY ANN YOUNG,
Plaintiffs
V.
FRANCIS C. McNAUGHTON
and PETER J. RESSLER,
individually and t/d/b/a
MIDPENN ESTATES,
Defendants
TO: David J. Lanza, Esquire
2157 Market Street
Camp Hill, PA 17011
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 06-5797 Civil Term
CIVIL ACTION - LAW
NOTICE TO PLEAD
You are hereby notified to plead to the within document within twenty (20) days
METTE, EVANS & WOODSIDE
By:
Michael D. Reed, Esquire
Supreme Court I.D. No. 35193
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - phone
(717) 236-1816 - fax
Attorneys for Defendants
after service hereof, or a default judgment may be entered against you.
DATED: November 2, 2006
459196v1
DAVID A. YOUNG and IN THE COURT OF COMMON PLEAS
SALLY ANN YOUNG, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
No. 06-5797 Civil Term
V.
FRANCIS C. McNAUGHTON
and PETER J. RESSLER,
individually and t/d/b/a
MIDPENN ESTATES,
Defendants
CIVIL ACTION - LAW
DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFFS' COMPLAINT
1. PENDENCY OF AN AGREEMENT FOR
ALTERNATIVE DISPUTE RESOLUTION
1. Plaintiffs David A. Young and Sally Ann Young (hereinafter "Youngs")
commenced the present action by the filing of a Complaint against Defendants Francis C.
McNaughton and Peter J. Ressler, individually and t/d/b/a Midpenn Estates (hereinafter
"Midpenn Estates") arising out of the purchase of commercial real estate located at 3461 Market
Street, Camp Hill, Cumberland County, Pennsylvania, 17011.
2. The Youngs attached to their Complaint a copy of the Agreement for the Sale of
Commercial Real Estate dated January 10, 2005 (hereinafter "Agreement").
3. Paragraph 29 of the Agreement reads as follows:
"ARBITRATION OF DISPUTES (1-00). Buyer and Seller agree to arbitrate any
dispute between them that cannot be amicably resolved. After written demand for
arbitration by either Buyer or Seller, each party will select a competent and disinterested
arbitrator. The two so selected will select a third. If selection of the third arbitrator
cannot be agreed upon within 30 days, either party may request that selection be made by
a judge of a court of record in the county in which arbitration is pending. Each party will
pay its chosen arbitrator, and bear equally expenses for the third and all other expenses of
arbitration. Arbitration will be conducted in accordance with the provisions of
Pennsylvania Common Law Arbitration, 42 Pa. C.S.A. §7341, et seq. This agreement to
arbitrate disputes arising from this Agreement will survive settlement."
4. The Youngs have not made any written demand for arbitration with regard to the
matters complained of in their Complaint, and no arbitration of the dispute has occurred.
Accordingly, Midpenn Estates makes preliminary objection to the Complaint
pursuant to Rule 1028(a)(6), relating to pendency of an agreement for alternative dispute
resolution.
WHEREFORE, Defendants respectfully request this Court to enter an Order staying all
proceedings in this case pending the completion of arbitration between the parties as set forth in
their Agreement.
II. MOTION TO STRIKE
6. The Youngs' Complaint includes two counts: Count I alleging breach of contract,
and Count II alleging fraudulent misrepresentation.
7. With regard to both counts, the Youngs prayer for relief includes a demand for
attorney fees.
There is no provision in the Agreement between the parties for recovery of
attorney fees.
9. None of the criteria set forth in 42 Pa. C.S. §2503 with regard to the award of
attorney fees are applicable in the present case.
10. Accordingly, Midpenn Estates makes preliminary objection to the Complaint on
the basis of Rule 1028(a)(2) for failure of the Complaint to conform to law.
WHEREFORE, Defendants respectfully request this Court to enter an Order striking the
portion of Plaintiffs' Complaint demanding the award of attorney fees.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By:
Michael D. Reed, Esquire
Supreme Court I.D. No. 35193
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - phone
(717) 236-1816 - fax
Attorneys for Defendants
DATED: November 2, 2006
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the
persons and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail,
Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
David J. Lanza, Esquire
2157 Market Street
Camp Hill, PA 17011
METTE, EVANS & WOODSIDE
By:
Michael D. Reed, Esquire
Supreme Court I.D. No. 35193
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - phone
(717) 236-1816 - fax
Attorneys for Defendants
DATED: November 2, 2006
? -3
__{
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? ',?.?
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-" L J ...?
I SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2006-05797 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
YOUNG DAVID A ET AL
VS
MCNAUGHTON FRANCIS C ET AL
R. Thomas Kline Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT to wit:
MCNAUGHTON FRANCIS C
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On October 19th , 2006 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs: So answers• --
Docketing 18.00
Out of County 9.00
Surcharge 10.00 R. Thomas Kline
Dep Dauphin County 41.25 Sheriff of Cumberland County
Postage 3.69
81.94 ;/
10/19/2006 4, JVo,S/Q L
DAVID LANZA
Sworn and subscribe to before me
this day of
A. D.
In The Court of Common Pleas of Cumberland County, Pennsylvarda
David A. Young et al
vs.
Francis C. McNaughton et al
SERVE: Francis C. McNaughton No. 06-5797 civil
Now,t r s 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin
deputation being made at the request and risk of the Plaintiff.
County to execute this Writ, this
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
copy of the original
the contents thereof.
0
So answers,
ti, 6
r
• S
Sheriff of C ty,-i?A
COSTS
Sworn and subscribed before SERVICE $
me this day of .20 MILEAGE
AFFIDAVIT
20 , at o'clock M. served the
(j)f{tCE of ?r,*hExi{f
Mary Jane Snyder
Real Estate Deputy
William T. Tully
Solicitor
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
County of Dauphin
YOUNG DAVID A
vs
MCNAUGHTON FRANCIS C
Sheriff's Return
No. 1647-T - - -2006
OTHER COUNTY NO. 06 5797 CIVIL
Charles E. Sheaffer
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
AND NOW:October 13, 2006 at 9:05AM served the within
COMPLAINT upon
MCNAUGHTON FRANCIS C by personally handing
to JEN BOYER RECEPTIONIST 1 true attested copy(ies)
of the original COMPLAINT and making known
to him/her the contents thereof at 4400 DEER PATH ROAD
HARRISBURG, PA 17110-0000
Sworn and subscribed to
before me this 13TH day of OCTOBER, 2006
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept. 1, 2006
So Answers,
? k e;l*?
Sheriff of Dauphin County, Pa.
By
Dep y She i f
Sheriff's Costs:$41.25 PD 10/06/2006
RCPT NO 222221
KROW
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2006-05797 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
YOUNG DAVID A ET AL
VS
MCNAUGHTON FRANCIS C ET AL
R. Thomas Kline
Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
T1111? ['+T T"?Tl T1T TT.?TI T
to wit:
but was unable to locate Him
deputized the sheriff of DAUPHIN
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On October 19th , 2006 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing 6.00
Out of County .00
Surcharge 10.00
.00
00
16.00
10/19/2006
DAVID LANZA
Sworn and subscribe to before me
this day of
in his bailiwick. He therefore
So answer
R Thomas Kline
Sheriff of Cumberland County
Il of /d l-
A.D.
In The Court of Common Pleas of Cumberland County, Pennsylvania
David A. Young et al
vs.
Francis C. McNaughton et al
SERVE: Peter J. Ressler No. 06-5797 civil
Now, Or-tnh r 5 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
copy of the original
So answers,
the contents thereof.
Sheriff of
Sworn and subscribed before
me this day of 20
COSTS
SERVICE $
MILEAGE
AFFIDAVIT
County, PA
20 , at o'clock M. served the
(1?ffit? of t4e "Sheriff
Mary Jane Snyder
Real Estate Deputy
William T. Tully
Solicitor
Commonwealth of Pennsylvania
County of Dauphin
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
YOUNG DAVID A
vs
MCNAUGHTON FRANCIS C
Sheriff's Return
No. 1647-T - - -2006
OTHER COUNTY NO. 06 5797 CIVIL
So Answers,
c
Sheriff of Dauphin County, Pa.
AND NOW:October 13, 2006 at 9:05AM served the within
COMPLAINT upon
RESSLER PETER J by personally handing
to JEN BOYER RECEPTIONIST 1 true attested copy(ies)
of the original COMPLAINT and making known
to him/her the contents thereof at 4400 DEER PATH ROAD
HARRISBURG, PA 17110-0000
Sworn and subscribed to
before me this 13TH day of OCTOBER, 2006
12, - A/
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept. 1, 2006
By
Charles E. Sheaffer
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
f
Sheriffs Cost's: $41.25 PD 10/06/2006
RCPT NO 222221
KROW
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2006-05797 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
YOUNG DAVID A ET AL
VS
MCNAUGHTON FRANCIS C ET AL
R. Thomas Kline
.00
16. 0 01/ 14 -
DAVID Y/,) L,
10/19/2006 ?-
DAVID LANZA
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT to wit:
RESSLER PETER J T/D/B/A MIDPENN ESTATES
but was unable to locate Him
deputized the sheriff of DAUPHIN
Sheriff or Deputy Sheriff who being
in his bailiwick. He therefore
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On October 19th , 2006 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Sworn and subscribe to before me
this day of ,
So answ s -?
6.00 'J
.00
10.00 . Thomas Kline
.00 Sheriff of Cumberland County
A. D.
In The Court of Common Pleas of Cumberland County, Pennsylvania
David A. Young et al
vs.
Francis C. McNaughton et al
SERVE: Peter J. Ressler t/d/b/a Midpenn Estates No. 06-5797 civil
Now, October 5 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
copy of the original
the contents thereof.
So answers,
Sheriff of
Sworn and subscribed before
me this day of , 20
COSTS
SERVICE _
MILEAGE _
AFFIDAVIT
County, PA
20 , at o'clock M. served the
Office Of th8 ?4rriff
Mary Jane Snyder
Real Estate Deputy
William T. Tully
Solicitor
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
County of Dauphin
YOUNG DAVID A
vs
MCNAUGHTON FRANCIS C
Charles E. Sheaffer
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
Sheriff's Return
No. 1647-T - - -2006
OTHER COUNTY NO. 06 5797 CIVIL
AND NOW:October 13, 2006
COMPLAINT
RESSLER PETER J
TDBA MIDPENN ESTATES
to JEN BOYER RECEPTIONIST
at 9:05AM served the within
upon
by personally handing
1 true attested copy(ies)
of the original COMPLAINT and making known
to him/her the contents thereof at 4400 DEER PATH ROAD
HARRISBURG, PA 17110-0000
Sworn and subscribed to
before me this 13TH day of OCTOBER, 2006
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept. 1, 2006
So Answers,
? kAl(-
Sheriff of Dauphin County, Pa.
' --/ e'? ".,e-
By
Drts:$41.25 ty eriff
Sheriff's Co PD 10/06/2006
RCPT NO 222221
KROW
PRAECIPE FOR LISTING CASE FOR ARGUMENT
To the Prothonotary of Cumberland County:
Please list the within matter for the next argument court
DAVID A. YOUNG and SALLY ANN YOUNG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06-5797
V.
FRANCIS C. McNAUGHTON and PETER J.
RESSLER individually and t/d/b/a MiDPENN
ESTATES,
Defendants
1. Matter to be argued -
Defendants' Preliminary Objections
2. Counsel who will argue case -
David J. Lanza.
356 North 21" Street
Camp Hill, PA 17011
Michael Reed
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110
CIVIL ACTION - LAW
3. I will notify all parties in writing within two days that this case has been listed for argument.
4. Argument Court date - August 15, 2007
By
i4c
David J. Lanza
Attorney I.D. No. 55782
356 N. 21" Street
Camp Hill, PA 17011
Telephone (717) 730-3775
Attorney for Plaintiffs
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DAVID A. YOUNG AND IN THE COURT OF COMMON PLEAS OF
SALLY ANN YOUNG, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
FRANCIS C. MCNAUGHTON AND
PETER J. RESSLER, INDIVIDUALLY
AND t/d/b/a MIDPENN ESTATES, :OL-S717
DEFENDANTS :-06 676 8 CIVIL TERM
ORDER OF COURT
AND NOW, this day of September, 2007, IT IS ORDERED:
(1) The dispute between plaintiffs and defendants shall be submitted to
arbitration.
(2) The proceedings in this case, ARE STAYED.
By the
06avid J. Lanza, Esquire
For Plaintiffs
ichael D. Reed, Esquire
For Defendants J
:sal
Edgar B. Bayley, J. I
a
N /tfi,m
el i i wv ? i d3s Loot
DAVID A. YOUNG AND IN THE COURT OF COMMON PLEAS OF
SALLY ANN YOUNG, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
FRANCIS C. MCNAUGHTON AND
PETER J. RESSLER, INDIVIDUALLY
AND t/d/b/a MIDPENN ESTATES, 5797
DEFENDANTS : -@6-5:75 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS
TO PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J. AND EBERT, J.
OPINION AND ORDER OF COURT
Bayley, J., September 14, 2007:--
On October 4, 2006, plaintiffs, David A. Young and Sally Ann Young, filed a
complaint against defendants, Francis C. McNaughton and Peter J. Ressler, individually
and t/d/b/a Midpenn Estates. Plaintiffs allege in Count I a breach of contract and in
Count II fraudulent misrepresentation. Defendants filed a preliminary objection
pursuant to Pa. Rule of Civil Procedure 1028(a)(6), seeking a stay and an order
directing the parties to submit their dispute to arbitration.
In their complaint, plaintiffs make the following averments. On January 5, 2005,
plaintiffs and defendants entered into an Agreement for plaintiffs to purchase from
defendants real estate at 3461 Market Street, Camp Hill, Cumberland County,
Pennsylvania for $2,100,000.00. The sale was completed on January 31, 2005. The
real estate contained Beazer Phenolic foam roof insulation, which is a toxic material
that corrodes metal and is a health hazard. Prior to the sale, defendants were notified
by Phenolic Consulting, a court appointed tort claims administrator, of the presence of
06-5759 CIVIL TERM
Beazer Phenolic foam roof insulation on their property and of multi-party litigation
against the manufacturer of the insulation due to the tendency of the insulation to
destroy metal roofing components like those on the property in Camp Hill. Defendants
were invited to participate in the litigation but declined. Defendants did not disclose to
plaintiffs the existence of the litigation against Beazer nor did they inform plaintiffs of the
existence of the faulty insulation. After defendants sold the property to plaintiffs,
Phenolic Consulting again contacted defendants in an effort to convince them to join
the litigation against Beazer. Defendants informed Phenolic Consulting that they had
sold the property and refused to disclose the identity of the new owners (plaintiffs).
The parties entered into an arbitration agreement that contains the following
provisions: "Buyer and Seller agree to arbitrate any dispute between them ... ," and the
"agreement to arbitrate disputes arising from this Agreement will survive settlement."
Plaintiffs maintain that this case should not be ordered to arbitration because the
conduct they allege against defendants constitutes both breach of contract and tortious
acts that continued after the contract was completed.
Where a valid arbitration agreement exists between the parties and the dispute
falls within the scope of the agreement, it must be submitted to arbitration. Callan v.
Oxford Land Development, Inc., 858 A.2d 1229 (Pa. Super. 2004). When an
arbitration provision does not contain language that would suggest only contract claims
fall within the purview of the agreement, any claims arising out of or relating to the
-2-
06-5759 CIVIL TERM
agreement must be submitted to arbitration. Shadduck v. Christopher J. Kaclik, Inc.,
713 A.2d 635 (Pa. Super. 1998). In Shadduck, the plaintiffs and defendants entered
into a building contract, which contained an arbitration provision, for the construction of
a residence in Fox Chapel, Pennsylvania. After the residence was completed, the
plaintiffs filed a complaint for breach of contract, false representations regarding
defendants' ability, or willingness, to construct [the plaintiffs'] home in a workmanlike
fashion, and violations of the Unfair Trade Practices and Consumer Protection Law.
The defendant filed a preliminary objection to compel arbitration. The Superior Court
stated the issue as follows:
[The defendant] argues that the arbitration agreement at
issue was broadly worded and, by its plain language,
contemplated that all disputes, whether styled in tort or
contract language, be submitted to arbitaatooot. Conversely,
[the plaintiffs] aver that the parties' agreement to arbitrate
was limited to causes of action sounding in contract and that
they were permitted, therefore, to file the instant tort claim in
the court of common pleas.
The arbitration agreement stated, in part, that "[a]II claims or disputes between the
Contractor and the Owner arising out of, or relating to, this Contract or the breach
thereof shall be decided by arbitration ...." The Court stated:
the parties intended to submit all of their grievances to
arbitration, regardless of whether the claims sounded in tort
or contract.... Indeed, given the agreement's expansive
terms, the only reasonable conclusion is that a claim's
substance, not its styling, is to control whether the
complaining party must proceed to arbitration or may file in
the court of common pleas. That is, if the claim arises out
-3-
06-5759 CIVIL TERM
of, or relates to, the building contract or the purported
breach thereof, the moving party's sole forum is compulsory
arbitration.
Relying on Nealy v. State Farm Mut. Auto. Ins. Co., 695 A.2d 790 (Pa. Super.
1997), the plaintiffs maintained that their claim for fraudulent misrepresentation was
distinct from any claims arising out of the building contract and, therefore, must be
litigated in court. In Nealy, which involved a statutory bad faith claim pursuant to 42
Pa.C.S. § 8371, the Superior Court held that "because the behavior complained of is
temporally and factually distinct from any behavior that would impact upon the outcome
of the damages and liability disposition of the contract claim," the bad faith claim
brought by the plaintiffs should be litigated in court rather than sent to arbitration. In
Shadduck, the Superior Court concluded that the facts were distinguishable from those
in Nealy because the misrepresentations complained of occurred before, during, and
after construction of the Fox Chapel residence, whereas the conduct in Nealy that gave
rise to the bad faith claim occurred only after the conduct from which the dispute arose,
a contractual insurance claim, and was temporally and factually distinct from that claim.
The Court stated that "the same factual averments underlie both [the plaintiffs] tort and
breach of contract claims," and the underlying tort claim arose out of the building
contract and was not temporally and factually distinct from the behavior averred in the
breach of contract claim. Therefore, all of the claims had to be submitted to arbitration.
In the present case, like in Shadduck, there are counts for fraudulent
misrepresentation and breach of contract. Paragraph 29 states that "Buyer and Seller
agree to arbitrate any dispute between them ...," and the "agreement to arbitrate
-4-
06-5759 CIVIL TERM
disputes arising from this Agreement will survive settlement." (Emphasis added.) As
in Shadduck, where the arbitration provision encompassed "[a]ll claims and disputes,"
there is no limiting language in Paragraph 29 that would lead one to believe that only
contract claims fall within the purview of the agreement. In rejecting the plaintiffs'
attempt to bring their false representation claim within the Nealy exception by arguing
that it was "temporally and factually" distinct from their breach of contract claim, the
Superior Court in Shadduck noted that the behavior complained of occurred before,
during, and after construction of the plaintiffs' residence by the defendants, and the
averments underlying the breach of contract claim were the same as those underlying
the fraudulent misrepresentation claim. In the case sub judice, plaintiffs aver that
defendants' concealment of the Beazer Phenolic foam roof insulation and refusal to
reveal plaintiffs' identity to the tort claims administrator occurred prior to and
subsequent to the sale of the property. The fraudulent misrepresentation claim is not
"temporally and factually" distinct from the breach of contract claim. Therefore, the
following order is entered.
ORDER OF COURT
AND NOW, this ?•? day of September, 2007, IT IS ORDERED:
(1) The dispute between plaintiffs and defendants shall be submitted to
arbitration.
(2) The proceedings in this case, ARE STAYED.
-5-
06-5759 CIVIL TERM
By the .E6urt,
Edgar B. Bayley, J.
David J. Lanza, Esquire
For Plaintiffs
Michael Reed, Esquire
For Defendants
:sal
-6-
David J. Lanza, Esquire
Attorney I.D. 55782
CALDWELL & KEARNS
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Attorneys for Defendants
DAVID A. YOUNG and
SALLY ANN YOUNG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
FRANCIS C. McNAUGHTON and
PETER J. RESSLER, individually and
t/d/b/a MIDPENN ESTATES,
Defendants
NO. 06-5797
CIVIL ACTION - LAW
NOTICE OF ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the undersigned's appearance on behalf of Plaintiffs, David A. Young and
Sally Ann Young, with regard to the above-captioned matter.
Respectfully submitted,
CALDWELL & KEARNS
Dated: 6 /6 ?
By:
David J. Lanza, Esquire
Attorney I.D. 55782
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Attorney for Plaintiffs
131-001/134002
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the within document this
day of
June, 2008, on the following by depositing a true and correct copy in the U.S. Mail at Harrisburg,
Pennsylvania, postage prepaid, addressed to:
Michael D. Reed, Esquire
Mette Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
CALDWELL & KEARNS
t'? na
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David J. Lanza
Attorney I.D. #55782
2132 Market Street
Camp Hill, PA 17011
(717) 730-3775
Attorneys for Plaintiffs
DAVID A. YOUNG and
SALLY ANN YOUNG,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
vs.
FRANCIS C. McNAUGHTON and
PETER J. RESSLER, individually and
t/d/b/a MIDPENN ESTATES,
Defendants
: NO. 06-5797
: CIVIL ACTION -LAW
NOTICE OF ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the undersigned's appearance on behalf of Plaintiffs, David A. Young and
Sally Ann Young, with regard to the above-captioned matter.
Respectfully submitted,
CALDWELL & KEARNS
By:
Dated: l l (? t /J? ".4a
David J. Lanza
Attorney I.D. #55782
2132 Market Street
Camp Hill, PA 17011
(717) 730-3775
Attorney for Plaintiffs
131-001/134002
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the within document this ( -? A day of
November, 2008, on the following by depositing a true and correct copy in the U.S. Mail at
Harrisburg, Pennsylvania, postage prepaid, addressed to:
Michael D. Reed, Esquire
Mette Evans & Woodside
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
CALDWELL & KEARNS
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