Loading...
HomeMy WebLinkAbout06-6083 - KATHY L. BROOKS, 1081/2 Third Street P.O. Box 93 Boiling Springs, P A 17007 Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. No. 2006 - ljpgJ ~ INA M. HENCH, 1106 South 5th Street Mebane, NC 27302 JURY TRIAL DEMANDED Defendant. PRAECIPE FOR A WRIT OF SUMMONS TO: CURTIS R. LONG, PROTHONOTARY Please enter my appearance on behalf of the Plaintiff, Kathy L. Brooks. Please issue a Writ of Summons upon the Defendant, Ina M. Hench. Our office will ensure services upon the Defendant at the following address, in accordance with the Pennsylvania Rules of Civil Procedure: INA M. HENCH 1106 South 5th Street Mebane, NC 27302 Respectfully, submitted IRWIN & McKNIGHT By: Douglas G. iller, Esquire Supreme Court I.D. No 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Date: October 18,2006 To: INA M. HENCH You are hereby notified that Kathy L. Brooks, the Plaintiff, has commenced an action against you which you are required to defend or a default judgment may be entered against you. ~~~~y Date: (Jot. 1<;, By: ,2006 DEPUTY ~~ fA \'\~ er.. CA. ~ . ) ~ " ~ \::! t,& G '(\ ~ ~ j\'S ~ 'o\Y \. 'V ~ "' ~ ~ 8 ~ ..J:1r~ ~ Q !l!-!:,1 C '1 1ft" ~ 5! ...:: ,~, ",.. -- ,-.:>.... - ,,..:..J ~(:' Q) :pEn ~c; dO s: c' .bo .:;;J Cl co! ::it' -l.. -p, -,; Q .i <::- . ..... ..? ('<) _-/ ~ (3m "'"'" .:;:--. -I \0 55 -.:: KA THY L. BROOKS, 1081/2 Third Street P.O. Box 93 Boiling Springs, P A 17007 Plaintiff, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW v. No. 2006 - 6083 INA M. HENCH, 4240 Michael Alan Court Graham, NC 27253 JURY TRIAL DEMANDED Defendant. PRAECIPE TO REISSUE A WRIT OF SUMMONS To the Prothonotary: Please reissue a Writ of Summons upon the Defendant with her new address. Our office will ensure service in accordance with the Pennsylvania Rules of Civil Procedure upon the Defendant as follows: INA M. HENCH 4240 MICHAEL ALAN COURT GRAHAM, NC 27253-8580 Respectfully submitted, IRWIN & McKNIGHT Dated: November 7,2006 By: Douglas Supreme ourt J.D. No. 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Plaintiff ~IU ~ --....; --;~~1 f''''') en (..YJ .. .J '* KATHY L. BROOKS, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW Plaintiff, v. No. 2006 - 6083 INA M. HENCH, JURY TRIAL DEMANDED Defendant. AFFIDAVIT OF SERVICE OF PRAECIPE FOR WRIT OF SUMMONS COMMONWEALTH OF PENNSYL VANIA : SS: COUNTY OF CUMBERLAND NOW, Douglas Miller, Esquire, being duly sworn according to law, does depose and state: 1. That he is a competent adult and attorney for the Plaintiff in the captioned action. 2. That a certified copy of the Praecipe for Writ of Summons was served upon the defendant, Ina M. Hench, on November 20, 2006, by certified mail, return receipt requested, addressed to Ina M. Hench, 4240 Michael Alan Court, Graham, N C 27253-8580, with return receipt number 7004 1350000372894812. 3. That the said receipt for certified mail is signed and attached hereto and made a part hereof. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. IRWIN & McKNIGHT Date: /1/ d- c; / 0 l.{J By:~iJdA Douglas . Miller, EsqUIre Supreme Court Id # 83776 60 West Pomfret Street Carlisle, P A 17013 (717) 249-2353 Attorney for Plaintiff .. -" .. --, . 'Complete Items 1, 2. and 3. Also complete 11m 4 if Restricted Delivery is desired. . PItnt your name and address on the reverse 80 1hat we can return the card to you. this card to the back of the mailpiece, front if space pennlts. " M. BENCH _ ~;K;;.~ MICHAEL ALAN COUR~\ " .~~ WC 27253-8580 '" 2. Ar1IaIe Number (Thnrfer ftf)m .mc.1Bbe/) PS Fomt 381 t,~ 2004 3. ServIce lYPe 121 CertIfIed Mall C Express Mail C Reglstenld II Return R8ceIpt forMelU." [J Insured Mall C C.O.D. . RestrIcted DelIYe1y? (Em FI!le II Yea 7004 1350 0003 7289 4812 DomeIIID AeIum ~ fCJ2lll5.Ge.M.1S40 ru r-=I <0 ::r Postage $ IT' <0 ru ~ ITl CJ CJ CJ Return Reclept Fee (EndonIement Required) CertlIIed Fee ellvery Fee ndorsement R Total Postage & Fees (") t--..) ~ <= c <::;:) ;;.?'" t:r'> _c:.. Z :r -uco n,rr 0 m:D Z.~:L; -< :g~ ;;~: ( N ~~~, \.0 '::> r:r' :t:n <'- -0 ,:r;: (~ iJ ::it Z~ ~(.J N ~ 'C ~ c.n ~ -<. - -< - KATHY L. BROOKS, Plaintiff, v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 2006 - 6083 CIVIL ACTION INA M. HENCH, Defendant. : JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order and notice are served, by entering a written appearance personally or by attorney and by 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 HA VE 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 Lawyer Referral Service 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA No. 2006 - 6083 CIVIL ACTION KATHY L. BROOKS, Plaintiff, INA M. HENCH, Defendant. : JURY TRIAL DEMANDED COMPLAINT AND NOW, this 9th day of April, 2007, comes the Plaintiff, KATHY L. BROOKS, by and through her attorneys, Irwin & McKnight, and makes the following Complaint against the Defendant, INA M. HENCH, averring as follows: 1. Plaintiff is Kathy L. Brooks (hereinafter referred to as "Brooks"), an adult individual principally residing at 108~ Third Street, P.O. Box 93, Boiling Springs, Pennsylvania 17007. 2. Defendant is Ina M. Hench, an adult individual upon information and belief principally residing at 4240 Michael Alan Court, Graham, North Carolina 27253. 3. Upon information and belief, Defendant may also be known as and/or be using the name Ina M. Earley. 4. Defendant was the owner of a 2001 Skyline Mobile Home, located at 127 Tower Circle, Carlisle, Pennsylvania, in the Northview Manor Mobile Home Park. 5. On or about September 8,2004, the parties signed an agreement for the sale of the mobile home from Defendant to Brooks for the purchase price of Forty-four Thousand and no/100 ($44,000.00) Dollars. A true and correct copy of the signed Bill of Sale dated September 8,2004, is attached hereto and incorporated herein as Exhibit "A." 6. As part of the signed agreement attached as Exhibit "A," Defendant was to level the mobile home. 7. In performance of the written agreement of the parties, on or about September 11, 2004, Brooks paid an initial deposit of Two Hundred Fifty and no/100 ($250.00) Dollars to Defendant. 8. In further performance of the written agreement of the parties, on or about October 8, 2004, Brooks made an additional payment of Thirty-two Thousand Nine Hundred Eighty-three and 34/100 ($32,983.34) Dollars. 9. Brooks subsequently moved into the mobile home after the second payment, having paid a total of Thirty-three Thousand Two Hundred Thirty-three and 341100 ($33,233.34) Dollars toward the agreed upon price. 10. Both payments were accepted and received by Defendant, leaving a balance due under the written agreement of sale of Ten Thousand Seven Hundred Sixty-six and 66/100 ($10,766.66) Dollars. 11. Brooks subsequently made numerous attempts to secure financing for the remaining amount owed under the written agreement. 12. Defendant orally agreed to allow Brooks to make monthly payments until financing could be obtained for the remaining balance due under the written agreement. 13. In part because of the lack of cooperation of Defendant regarding the transfer of the title to the mobile home for use as collateral, Brooks was unable despite her best efforts to obtain the remaining financing. 14. Defendant also refused to abide by her earlier oral promise to allow Brooks to make monthly payments for the remainder of the purchase price. 15. In December of 2004, the parties subsequently signed another document entitled "Agreement and Release," in order to rescind the terms of the Bill of Sale, return possession of the mobile home to Defendant, and refund to Brooks monies previously paid toward the agreed upon purchase price. A true and correct copy is attached hereto and incorporated herein as Exhibit "B." 2 16. Although the Agreement and Release had been signed, Brooks continued to reside in the mobile home and attempt to obtain the financing necessary to pay the remaining amounts owed to the purchase price. 17. Ultimately, Brooks agreed to move from the mobile home in exchange for prompt reimbursement from Defendant upon the sale of the mobile home to a third party. 18. Brooks moved from the mobile home on or about September 23, 2005, and at that time Brooks had paid all applicable lot assessments incurred during the time of her possession of the mobile home. 19. Brooks, individually and through her undersigned legal counsel, made numerous attempts to contact either Defendant or her legal counsel to determine if the mobile home had subsequently been sold. 20. Neither Defendant nor her legal counsel ever informed Brooks that the mobile home had been sold. 21. Upon information and belief, Defendant sold the mobile home on or about May 3, 2006. 22. After the sale of the mobile home, neither Defendant nor her legal counsel notified Brooks or her attorney of the sale of the mobile home. 23. On or about August 11, 2006, the undersigned sent written correspondence to Defendant's legal counsel requesting reimbursement of Thirty-two Thousand and no/1 00 ($32,000.00) Dollars. A true and correct copy of the letter of August 11, 2006 is attached hereto and incorporated herein as Exhibit "e." 24. Defendant has never responded to the requests of Brooks, or reimbursed Brooks for any of the thousands of dollars she deposited. 25. Defendant has breached the agreement attached hereto as Exhibit "B," by failing and refusing to reimburse Brooks for the thousands of dollars deposited with Defendant for the purchase of the mobile home. 3 26. Brooks had to move in with her daughter for approximately five (5) months until she saved sufficient resources to enable her to rent her own apartment. 27. Defendant has failed either orally or in writing to identify any reason for her refusal to honor the agreement of the parties. COUNT I BREACH OF CONTRACT 28. The averments of fact alleged in items one (1) through twenty-seven (27) are made a part hereof and incorporated herein by reference. 29. Defendant, by her refusal and failure to reimburse Brooks for the monies paid on deposit for the purchase of the mobile home, has breached the contracts signed by the parties. 30. Despite repeated demands, Defendant has refused and failed to honor the contracts, and refused and failed to provide Plaintiff with any explanation as to the reason or reasons for the refusal to reimburse Brooks. 31. As a result of Defendant's breach and refusal to honor the terms of the contracts, Plaintiff has been without the use of the more than $33,000.00 she paid on deposit in 2004, and no longer has possession of the mobile home. 32. In addition, Brooks has expended the sum of $55.50 to file the instant Complaint. 33. Plaintiff Kathy L. Brooks is entitled to certain damages, including but not limited to, receiving the full amount paid to Defendant on account of the contracts, rent, and costs associated with this litigation. WHEREFORE, the Plaintiff, Kathy L. Brooks, respectfully requests that this Honorable Court enter judgment against Defendant, Ina M. Hench, in an amount less than the arbitration limit of Fifty Thousand ($50,000.00) Dollars, plus costs, interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just. 4 COUNT II UNJUST ENRICHMENT 34. The averments of fact alleged in items one (1) through thirty-three (33) are made a part hereof and incorporated herein by reference. 35. Plaintiff Kathy L. Brooks has conferred benefits on Defendant by the substantial payment of monies toward the purchase price of the mobile home owned by Defendant. 36. Defendant has received and acknowledged receipt of the payments by Brooks. 37. Defendant has not honored the written agreement attached hereto as Exhibit "B," or otherwise justified the value of the benefit which she received from Brooks. 38. It is and continues to be inequitable for Defendant to retain the substantial payments made by Brooks while refusing to reimburse her in accordance with the agreement attached hereto as Exhibit "B." 39. In the alternative, Defendant has been unjustly enriched by retaining the substantial payment made by Brooks toward the purchase price of the mobile home, which mobile home Defendant subsequently sold to a third party. WHEREFORE, the Plaintiff, Kathy L. Brooks, respectfully requests that this Honorable Court enter judgment against Defendant, Ina M. Hench, in an amount less than the arbitration limit of Fifty Thousand ($50,000.00) Dollars, plus costs, interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just. COUNT III WRONGFUL CONVERSION 40. The averments of fact alleged in items one (1) through thirty-nine (39) are made a part hereof and incorporated herein by reference. 5 41. Defendant was obligated upon receipt of the proceeds of the sale of the mobile home to a third party to refund to Brooks the substantial payments Brooks made on account of the purchase price of the mobile home. 42. In the alternative, by appropriating all of the Thirty-three Thousand Two Hundred Thirty-three and 34/100 ($33,233.34) Dollars paid by Brooks toward the agreed upon purchase price, as well as receiving all of the proceeds from the subsequent sale of the mobile home to a third party, Defendant has wrongfully converted Brooks' funds. 43. Upon information and belief, Defendant has wrongfully converted the funds paid on account by Brooks in order to pay Defendants' own financial obligations. WHEREFORE, the Plaintiff, Kathy L. Brooks, respectfully requests that this Honorable Court enter judgment against Defendant, Ina M. Hench, in an amount less than the arbitration limit of Fifty Thousand ($50,000.00) Dollars, plus costs, interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just. COUNT IV CONSTRUCTIVE TRUST 44. The averments of fact alleged in items one (1) through forty-three (43) are made a part hereof and incorporated herein by reference. 45. Despite the subsequent sale of the mobile home by Defendant to a third party, Defendant has failed and refused to reimburse Brooks the substantial payments made toward the purchase of the mobile home. 46. As a result, Brooks was unable to secure alternative housing for at least five (5) months following her move from the mobile home, and continues to be without the ability to utilize the monies she is to be reimbursed. 6 47. The momes paid by Brooks to Defendant total Thirty-three Thousand Two Hundred Thirty-three and 341100 ($33,233.34) Dollars. 48. Since on or about September 23, 2005, Defendant had possession of the mobile home until its sale to a third party, and prior to said date, Brooks paid all applicable lot rent due on the mobile home. 49. Upon information and belief, at the time of the return of possession of the mobile home by Brooks, Defendant had no intention to comply with the written agreement to reimburse the substantial funds paid on account of the purchase price. 50. Upon information and belief, Defendant fraudulently induced Brooks to believe that she would be reimbursed the substantial funds paid on account of the purchase price. 51. By reason of Defendant's fraudulent inducement to Brooks to believe that she would be reimbursed the substantial funds paid on deposit, and by reason of Defendant's failure and refusal to respond to the multiple requests for reimbursement in compliance with the parties' written agreement, Defendant has violated the trust and confidence placed in Defendant by Brooks. 52. Brooks would not have otherwise agreed to continue to pay the lot rent and return possession of the mobile home to Defendant, but would have instead continued to seek the remaining amounts owed under the contract, if not for the promises and representations made by Defendant and her legal counsel. 53. Defendant acquired possessIOn of the mobile home and has retained the substantial funds paid by Brooks toward the purchase price of the mobile home solely by means of fraud and breach of confidence. WHEREFORE, the Plaintiff, Kathy L. Brooks, respectfully requests that this Honorable Court enter judgment against Defendant, Ina M. Hench, in an amount less than the arbitration limit of Fifty Thousand ($50,000.00) Dollars, plus costs, interest, reasonable attorneys fees, and 7 all other relief this Honorable Court deems fair and just, including the imposition of a constructive trust upon Defendant for any real or personal property acquired by Defendant through the wrongful retention of the funds paid by Plaintiff on account of the purchase price, requiring the Defendant to release and/or reconvey any such property to Plaintiff. Respectfully Submitted, IRWIN & McKNIGHT By: Dated: April 9, 2007 Douglas . Mil er, Es uire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff 8 EXHIBIT "A" q. -11 -Ot.1 ,0- <3-Of /'\~ ~;t .. I ., vIM 1-<<", , rf'\IV...t. I^- ~ CL~ 't. ~Sl). 7/00 .... JL;J. 6/Wh1 ;(1Lct}{Jti~ .,.,(,1.... ffi Ji110uvt ~ tJ3~}7d 3'YW 11'13, 7SlJ.~. ~~ ...,. -- 10, 7 (,,~. ,," ~ BILL OF SALE P. aOO\ S~l;.'t... -IJ'l 1'o\..Wr ~^d! IQl/I.~\t, ~ () , CC\6~ FOR VALUE RECEIVED, $l1Y.OOO."'l'UD\f' , the undersigned )na.. l1er"\c.h of C9-~',"I:)\~_~ (.~eller) hereby sells and transfers unto ~~ ill\'''''~, .... 50f wll~ \~ I Pe..... (Buyer), and its successors and ssign forever, the followlng described goo~s and chattels: wasrvf. d~'l ~;tl \ ~,>k, t dl.,'rAI''I'.f'~'''' ~ .:}.OO\ S~'jltf\lL l)1cl11) hOM L. Seller warrants and represents that it has good title to said property, full authority to sell and transfer same and that said goods and chattels are being sold free and clear of all liens, encumbrances, liabilities and adverse claims, of every nature and description. Seller further ~arrants that it shall fully defend, protect, indemnify and save harmless the Buyer and its lawful successors and assigns from any and all adverse claim that may be made by any party against said goods. It is provided, however, that Seller disclaims any implied warranty of condition, merchantability or fitness for a particular purpose. Said goods being sold in their present condition "as is" and "where is." Signed this 8~ In the presence of: .~~ ~~ - ~"=-~;:==~~'. '. Wltness Buyer's Address \ Su~i,(\e ./IJ'1 IO\,'.IPt' Gfl1;l{j U:, \ I w &V~ ~ --tiu \<. U-t I; t'\j ot -thP 2VDI ~ "- Oct. 1'5.~"t Y)O \~~('. ", ~lna. t\ey\c,h W"\\ b~ ~'" o~ ":3 .. _\ 02 4luu OOO,l'/IOO 'o.j OC+. 1S-,dOOl\~caY\. (&vo~.>) 1\ I l-\..e h -t'he Q(V\f'I.U1T T '"1 1 . }~~j tl)\\~( \,'-'\ ~N.. .I'\C. bL 'fNU'ed. At> U3ml^l\@IC<.. bo.n't.. \j\ GL~Ii~I(, . t -\0 ~\ aDD\ S~\i"I2.'^"\\ t\e ' JK-"\he ;, t\.t .(8r:~) . \. '\,+ VI" tt,+,~ Co-(\~le ~Y\c.~ o,^U- \ru\.. '.nc~ . . ...J. (1..(\G\. llf,t:1~h 'ii I\IM..!?/'- C[t..n ~\tr- '7' I' II 10 \I'\.il\.. \-\en''''- .~..... 'L.:AA~ ~"'~v \i\ l"l (UNOM" .j ') ncU\Mth.' 11""\ +v- c~ 1'\'i,OOo,"'1lo<> ~:\& '" aI Oa. ^ j v..po,"\ ,oJ . . u . . (g"""a:s) ~ As cw......Septe~bef l,d004 Wh~ \<-1111"",)('( C1~1 \('tl \-'Ief'C~ hAA~ C.}{Y1t ..\v '+i-.:>- O,f.'ffe..1"c\e I~t- 0\- ~ f' ~ l(:. ~~ . kOefX)5it "-II' \,( ~ l .to 1 Nt. ~ net-) ..h-trt'\ lUtt~ I\e. rb\..I~Y'. .t 'I ~hV"\~~.J \"f\.O.A()V""'" i"'ob. \ no f't\L pn (" ~ q/2~t:f8~ Witness UN'\tf'e f\t.s : *- lro. l-\.<r\c,h. (5~lkf ') day of September, 2004. ~n.~hnature J 1 ~~ /\'a w-er CU'dl ~.J;JiJ fE1, j") 013 . Seller's Address ~~~ Bu s Signature Iv<;~ iJ~llk Qd, G~.tJ.. p~ 1100 ~;j,.:J.S) IU J1; rvy t Clf't(l a.m~l Ub uw~ ~W\ ExmBIT "B" AGREEMENT AND RELEASE THIS AGREEMENT made this day of , 2004, by and between INA M. HENCH, 1106 South 5th Street, Mebane, North Carolina 27302, (hereinafter called "Hench"), and KATHY L. BROOKS, 127 Tower Circle, Carlisle, Pennsylvania 17013 (hereinafter called "Brooks"). WITNESSETH: WHEREAS, Hench is the owner of a 2001 Skyline Mobile Home, which is located at 127 Tower Circle, Carlisle, Pennsylvania in the Northview Manor Mobile Home Park; and WHEREAS, on September 8, 2004, the parties entered into an agreement for the sale of said mobile home from Hench to Brooks; and WHEREAS, Brooks has not been able to conclude the agreement by making payment in full; and WHEREAS, the parties desire to rescind the agreement and release each other from the terms thereof. WHEREFORE, the parties agree as follows: I. The transfer of the 200 I Skyline mobile home from Hench to Brooks is voided. 2. Hench may pay to Brooks a portion ofthat previously paid by Brooks deducting lot rent, taxes, costs, attorney fees, expenses, lost income and lost profit. 3. Brooks hereby releases all of her right, title and interest in the property. ~"".._.-~ .,.. . . ",,~~'''~"'''''~~r'''1'''''~''~~"t'litilr'f__ 4. Brooks releases, remises, quitclaims and forever discharges Hench, her heirs, personal representatives, successors and assigns from and against all claims that she had, now has or may in the future have in connection with this transaction. 5. Brooks agrees to execute such additional documents as may be necessary to effectuate the agreement set forth herein. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and date first above written. ~L . HENCH ~~tD ~ Witness ExmBIT "C" LAW OFFICES IRWIN & McKNIGHT ROGER B. IRWIN MARCUS A. McKNIGHT. ll! DOUGLAS G. MILLER MATTHEW A. McKNIGHT WEST POMFRET PROFESSIONAL BUILDING 60WESTPOMFRETSTREET CARLISLE. PENNSYLVANIA 17013-3222 (717) 249-2353 FAX (717) 249-6354 WWW./MHLAWGOM HAROUJS./RWIN 1/92'./'i771 HAROLD S. fRWfN. JR. (f954.j9/ifJl fRWIN. fRW/N & IRWIN I/9SfJ-IYM) IRWfN. IRWIN & McKNIGHT (19XIi-/994; /RWlN. McKNIGHT & HUGHES (1Y94-200J) IRWIN & McKNIGHT 12003- ) August 11, 2006 MURREL R. WALTERS, III, ESQUIRE S4 EAST MAIN STREET MECHANICSBURG, PA 17055 RE: KATHY L. BROOKS v. INA ~I. HENCH PROPERTY: 127 TOWER CIRCLE CARLISLE, PA 17013 <%~ t'OA '; Dear Attorney Walters: As you should recall, our firm represents Kathy L. Brooks with regard to the above- referenced matter. I have not heard back from you despite my recent telephone messages. It is has come to my attention that your client's property was sold on or about May 3, 2006, for approximately $38,000.00. However, I did not hear from you prior to the sale of the property in order to ensure repayment to Ms. Brooks of the majority of the $33,23334 that she paid to your client. I thought that we had discussed and agreed to that procedure. I am not aware that Ms. Brooks has formally waived her equitable interest in the mobile home by virtue of the signed Bill of Sale. Her agreement to physically move from the property was only to enable your client to find another purchaser. As requested by your client and agreed to by Ms. Brooks, she promptly moved from the property on or about September 23, 2005. During her possession of the property, I understand that she paid all applicable real estate taxes and lot assessments. Your client in the meantime has had the benefit and use of the $33,233.34 paid by Ms. Brooks under the Bill of Sale. Accordingly, my client requests that the sum of $32,000.00 be promptly refunded to her through my office. In the event that your client does not immediately agree to a mutual resolution to this matter and refund to Ms. Brooks, I will recommend that litigation be commenced against Ms. Hench immediately. This recommendation will likely include the request for a constructive trust or similar equitable remedy against the mobile home. I trust that such action will not prove necessary. Very truly yours, IRWIN & Mc~~IGHT ~v .~ 'D;;~g~. &f:~r DGM:tds cc: Kathy L. Brooks VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. ~ L ~Jv T Y L. BROOKS Date: April 9. 2007 CERTIFICATE OF SERVICE 1, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: INA M. HENCH 4240 MICHAEL ALAN COURT GRAHAM, NC 27253-8580 Date: April ~, 2007 IRWIN & McKNIGHT D glas . Miller, Esquire Supreme Court J.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 r---.' C:.':) \. ~:"~ -,J ~ _c,:~ ..........) C~ -(.) :J.: C") (..) . ') ~-~: :D -< KATHY BROOKS, vs Case No. 2006• c~ c~i~ ~ +'~ INA M. HENCH, ~~ -~ C7 ~ Statement of Intention to Proceed ~~ w w w To the Court: Plaintiff intends to proceed with the above captioned matter. Print Name Douglas G. Miller, Esq. SignName~ Date: 9/1110 Attorney for Plaintiff Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the ternrination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case maybe dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Ru1e230(d) for relief from the order of temunarion. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff' must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of terminarion on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits i>idependently of termination under Rule 230.2. -n ~~ ".7 ~ ~v KATHY L.BROOKS, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff, CIVIL ACTION-LAW v. No. 2006—6083 INA M.HENCH, JURY TRIAL DEMANDED Defendant. STATEMENT OF INTENTION TO PROCEED rn TO THE COURT: Plaintiff intends to proceed with the above-captioned matter. r ; Respectfully submitted, IRWIN & McKNIGHT, P.C. Dated: October 7, 2013 By: 4P ' 41A4 Douglas GI Miller,Esquire Supreme Court I.D. No: 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353