HomeMy WebLinkAbout94-03064
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COMMONWIALTH 0' PINHITLVAHIA
COUIT 0' COMMON PUAI
NOTICE OF APPEAL ~ 7. /9 q'l
FROM
JUDICIAL DIIlIICT
DISTRICT JUSTICE JUDGMENT
COMMONPLIAINa. 9'/- 3.:Jt.y e,-v,'/ ~""
NOTICE OF APPEAL
Noliee i. given that the appellanl ha. filed in lhe aboYe COUll of Cammon Plea. an appeal from lhe judgmenl ,e"d..ed by the Di.trict Juslice an the
date and In the case "...dia"ed be'- _ .
CHA leJ I ~IA~'E LO"JE C~c,-,P7&f-l
Ja p..r.c '/<.~L
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CV 19. 0000078: - "1 (/
LT 19
This black will be signed ONLY when this nalalion i. requited under Pa. R.cP JP. No.
loo8&.
This Notice of AppeoI. when rec.;ved by lhe Di.trict Ju.tice, will operate a. a
SUPERSEOF.AS Ia the judgment far possession in this case.
u
-
Siglallle aI ProIhonoIaIy 01 Deputy
If appellant was CLAIMANT (see Pa. R.c.P.J,P, No,
1001 (6) in action before District Justico, he MUST
FILE A COMPLAINT within twenty (20) days after
filing his NOTICE of APPEAL.
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section 01 loon to be used ONLY when appellant was DEFENDANT fsee Pa, HC.P.J,P' No, 1001(7) In action belOle District Justice.
IF NOT USED, detach from cty)y 01 notice 01 sppeal to be served upon appellee).
PRAECIPE. To Prothonotary
Enter rule upon
_01__1
, oppen..(.), Ia file a CCJI'l1lIalnt in this appeal
(Cammon PIeos No.
) within twenty (20) day. after _vice of rule 01 .ufF. entry of judgment of non pros.
S9!lItln 01 _ 01 his IIfOmey 01 __
RULE. To
_01__1
, appellee(.).
(1) You are na~Fied that a rule is hereby entered upon you Ia file a ~nt in this appeal within t-.ty (20) days after the dole of
.-vice of this rule upon you by personal service 01 by certified 01 registered malt
(2) If you do not file a ~t within this ~me, a JUDGMENT OF NON PROS WlU BE ENTERED AGAINST YOU.
(3) The date of .-vice of this rule if .-vice was by mal1 is the date of mail'ong.
Date:
,19_.
S/gIIflIe 0111"'......, 01 00I>utY
~312-84
COURT FILE TO BE FILED WITH PROTHONOTARY
CHARLES LEESE and MARIE LEESE, I
I
Plaintiffs I
I
v. I
I
FOXLEA HOMEOWNERS ASSOCIATION, I
INC. , :
.
.
Defendant I
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO.1 94-3064 Civil
JURY TRIAL REQUESTED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend
against the claims set forth in the following pages, you must take
action within twenty (20) days after this document is served, by
entering a written appearance personally or by attorney and filing
in writing with the Court your defenses or objections to the claims
set forth against you. You are warned that if you fail to do so,
the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money
claimed in the document 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.
As provided by Pennsylvania Rules of Civil Procedure,
Number 101B.1, the following officer is designated to be named in
the Notice to Defend in order to find out where legal help can be
obtained.
Court Administrator
Fourth Floor
Cumberland County Courthouse
High and Hanover Streets
Carlisle, PA l70l3
(717) 240-6200
Defendant
I IN THE COURT OF COMMON PLEAS
I OF CUMBERLAND COUNTY,
I PENNSYLVANIA
I
I NO.1 94-3064 Civil
I
I
I
I
I JURY TRIAL REQUESTED
CHARLES LEESE and MARIE LEESE,
Plaintiffs
v.
FOXLEA HOMEOWNERS ASSOCIATION,
INC. ,
COMPLAINT
AND NOW, comes Plaintiffs, Charles Leese and Marie Leese,
by and through their attorney, the Offices of Fenstermacher and
Associates, and files this Complaint, as followsl
1. Plaintiffs, Charles Leese and Marie Lease, are adult
individuals residing at 50 Drexel place, New Cumberland,
Pennsylvania 17070.
2. Defendant is a Pennsylvania corporation with an
address for doing business at Bl Drexel Place, New Cumberland,
Pennsylvania 17070.
3. In or about August, 197B, Plaintiffs purchased the
property at 15 Drexel Place. Said property being within the Foxlea
Residential Community.
4. During approximately the last eight ( B) years,
Plaintiffs' home experienced a sewage problem whereby the sewer
line would back up and thereby cause flooding in Plaintiffs'
residence.
5. Plaintiffs have attempted to control and/or mitigate
the problem by contracting for professionals to clear out the sewer
lines. Such actions were paid for solely by Plaintiffs.
6. Defendant has been aware, at least since in or about
May, 1991, that the source of the sewage overflow was due to a
defect in the main sewer line, not the sewer pipes within the
control of plaintiffs.
7. In or about June, 1993, after continued sewage back-
up and flooding, Defendant, by and through its acting President,
Joseph piscioneri, attempted to rectify the problem by replacing a
sewage pipe which ran into Plaintiffs' residence.
S. The portion of the aforesaid pipe which was replaced
was not located on Plaintiffs' property. Rather, the pipe was
located on property which was "common ground", owned and maintained
by Defendant.
9. Subsequent to such action, Plaintiffs' residence was
flooded by sewage on at least three (3) other occasions.
10. Damages resulting from such flooding, including
costs of clean-up and repairs, were incurred by Plaintiffs in the
total amount of One Thousand Four Hundred Four and 12/100
($1,404.12) Dollars.
11. In or about September, 1993, piscioneri instructed
Plaintiffs that in order to minimize future damage from sewage
flooding in their home, Plaintiffs should replace their existing
flooring with ceramic tile floor and should utilize the services of
a particular contractor recommended by the Association for such
work.
2
12. Piscioneri informed Plaintiffs that all monies spent
by Plaintiffs on the above-stated work would be reimbursed by
Defendant.
13. Piscioneri also represented that such matters would
be submitted to the Association's insurance carrier.
14. Plaintiff did in fact contract to replace their then
- existing floor with ceramic tile floor at a total cost of One
Thousand Nine Hundred Fifty ($1,950.00) Dollars.
15. Joseph Piscioneri represented that said matters were
in fact referred to the Association's insurance carrier.
16 . The said insurance carrier, then contacted by
Plaintiff's represented that they were in fact never contacted by
Defendant regarding the herein referenced matters.
17. No communication has been received from the
Association's insurance carrier relative to the events herein
referred, nor has any telephone call, placed to said carrier by
Plaintiffs, received the courtesy of a response.
1S. As of the date of this Complaint, Defendant has
failed and refused to correct the defect in the main sewer system.
COUNT I
NEGLIGENCE
19. Paragraphs 1 through 1S are incorporated herein as
if more fully set forth herein.
3
20. The main sewer line and/or all sewer lines not
within the boundaries of Plaintiff's residence servicing the Foxlea
Residential Community is under the sole control of Defendant.
21. As Defendant maintains sole control over the main
sewer line Defendant has a duty to provide for maintenance, upkeep,
and satisfactory working order of the sewer lines.
22. Defendant has breached such duty to plaintiffs by
failing to maintain the sewage system in satisfactory working
order.
23. But for Defendant's failure to maintain the main
sewage system in satisfactory working order, Plaintiffs' property
would not have suffered flooding due to a sewer backup.
24. plaintiff has suffered damages in the following:
(a) Replacement of flooring -
(b) Clean-up and repairs of -
flooded areas
$l,950.00
$1,404.12
25. Plaintiffs will continue to suffer flooding and the
resultant damage as Defendant has failed and refused to conduct the
repairs necessary to fulfill Defendant's duty to Plaintiffs.
WHEREFORE, Plaintiffs request this Honorable Court to
enter judgment for plaintiffs and against Defendant, and award
damages in the amount of Three Thousand Three Hundred Fifty-four
and 12/100 ($3,354.12) Dollars, plus reasonable costs, fees and
interest. Further, Plaintiff requests that this Honorable Court
order Defendant to repair the sewer system to a satisfactory
4
condition. Said amount is under Twenty Thousand ($20,000.00)
Dollars, thereby requiring compulsory arbitration.
COUNT II
TRESPASS
26. Paragraphs 1 through 25 are incorporated herein as
if more fully set forth herein.
27. Defendant maintains complete and sole control over
the main sewage system at Foxlea Community Village.
2S. Due to defects within the main sewage system,
Plaintiff's have endured repeated flooding of their residence
consisting of raw waste and sewage.
29. Defendant knew or reasonably should have known that
a defect was present in the main sewage system.
30. Defendant knew or reasonably should have known that
such defect was the cause of the physical invasion of raw waste and
sewage onto the property of Plaintiffs.
31. Defendant has failed and refused to take such
necessary steps to prevent the invasion of Plaintiffs' property.
32. Due to Defendant's failure and refusal to correct
the defect in its main sewage system, Plaintiffs suffered repeated
instances of physical invasion onto their property.
WHEREFORE, Plaintiffs request this Honorable Court to
enter judgment for Plaintiffs and against Defendant, and award
damages in the amount of Three Thousand Three Hundred Fifty-four
and l2/100 ($3,354.12) Dollars, plus reasonable costs, fees and
5
interest. Further, Plaintiff requests that this Honorable Court
order Defendant to repair the sewer system to a satisfactory
condition. Said amount is under Twenty Thousand ($20,000.00)
Dollars, thereby requiring compulsory arbitration.
COUNT III
NEGLIGENT MISREPRESENTATION
33. Paragraphs 1 through 32 are incorporated herein as
if more fully set forth herein.
34. Defendant, by and through its President, Joseph
Piscioneri, represented to Plaintiffs that if Plaintiffs installed
a ceramic tile floor to control flooding that Defendant would pay
for all costs incurred.
35. Defendant knew or should have known that its
misrepresentation to Plaintiffs, that reimbursement for the
aforementioned costs would be provided, was false and misleading.
36. Defendant knew or should have known that its
misrepresentation to Plaintiffs would reasonably be relied on by
Plaintiffs.
37. Plaintiffs did reasonably rely on the
misrepresentation of Defendant. In reasonable reliance upon such
misrepresentation Plaintiffs contracted to have ceramic tile floor
installed in their residence.
6
3S. As a direct result of the negligent and wrongful
conduct of Defendant, Plaintiffs have suffered damages and losses
in the amount of One Thousand Nine Hundred Fifty ($l,950.00)
Dollars.
WHEREFORE, Plaintiffs request this Honorable Court to
enter judgment for Plaintiffs and against Defendant, and award
damages in the amount of One Thousand Nine Hundred Fifty
($l,950.00) Dollars, plus reasonable costs, fees and interest.
Further, Plaintiff requests that this Honorable Court order
Defendant to repair the sewer system to a satisfactory condition.
Said amount is under Twenty Thousand ($20,000.00) Dollars, thereby
requiring compulsory arbitration.
COUNT IV
BREACH OF CONTRACT
39. Paragraphs 1 through 3S are incorporated herein as
if more fully set forth herein.
40. The granting of Plaintiff's deed (See Plaintiff's
Exhibit "A" attached hereto and incorporated herein as if fully set
forth) was subject to a Trust Deed by Foxlea Nominee Corp. to
Cumberland County National Bank and Trust Company.
41. Said Trust Deed, in relevant part, states
"WHEREAS, it is the lntention of the parties to create a
non-profit entity to own, manage, operate and maintain
certain Common Areas in the development known as "Foxlea
Residential Community" located in the Township of Lower
Allen, Cumberland County, PennsylvaniaJ and
7
WHEREAS, it is the intention of the parties to have the
Trustees supervise the performance of such duties, to
maintain and create active and passive recreation
facilities and to supply basic services such as, but not
limited to, water, sewer, grounds-keeping, road keeping,
and any other community facilities which the Trustees
deem necessary or advisable. (Emphasis ours)
See Plaintiff's Exhibit "B" attached hereto and incorporated herein
as if fully set forth.
42. Defendant has assumed all rights and obligations set
forth in the aforesaid Trust Deed.
43. Defendant has breached its contractual obligation by
failing to maintain the main sewer system, located within the
common area of Foxlea Residential Community.
44. Due to Defendant's breach, Plaintiffs have suffered
damages.
45. Plaintiffs will continue to suffer damages as
Defendant has failed and refused to correct the defect in the main
sewer system and maintain the same.
WHEREFORE, Plaintiffs request this Honorable Court to
enter judgment for Plaintiffs and against Defendant, and award
damages in the amount of Three Thousand Three Hundred Fifty-four
and 12/100 ($3,354.12) Dollars, plus reasonable costs, fees and
interest. Further, Plaintiff requests that this Honorable Court
order Defendant to repair the sewer system to a satisfactory
condition.
Said amount is under Twenty Thousand ($20,000.00)
Dollars, thereby requiring compulsory arbitration.
s
COUNT V
BREACH OF IMPLIED CONTRACT
46. Paragraphs 1 through 45 are incorporated herein as
if more fully set forth herein.
47. Upon obtaining their property, Plaintiff and
Defendant entered into an implied contract whereby Defendant did
agree to manage, operate, and maintain the common areas of Foxlea
Residential Community.
4S. Defendant has failed to properly maintain the main
sewer system.
49. Said main sewer system is within the common area of
Foxlea Residential Community.
50. Defendant has breached its contractual obligation by
failing to maintain the main sewer system.
51. Due to Defendant's breach, Plaintiffs have suffered
damages.
52. Plaintiffs will continue to suffer damages as
Defendant has failed and refused to correct the defect in the main
sewer system and maintain the same.
WHEREFORE, Plaintiffs request this Honorable Court to
enter judgment for Plaintiffs and against Defendant, and award
damages in the amount of Three Thousand Three Hundred Fifty-four
and 12/100 ($3,354.12) Dollars, plus reasonable costs, fees and
9
W4is Ittb,madc Ihis
:1Iith
dayul'
August
1978
ibtwrrll. LEAFOX CORPORATION
, a cmpmalinn mganllell and existing under and by
vlrlue of the laws of Pennsylvania (hcrelnaf... called "Crall". "), of Ihc unc pari, and
Charlos Leoso /lrxl J.llll'ilJ 1..0000, his l'li l'o
(hereinafler callelllhc "Granlec"), of Ihe plher parl,
lIitnrssrtl1, TIlalln consideration of
Thirty-fivo thouonml fivo hundred (*:35,500.00) Dollars,
In hand paid, Ihe recelpl whereof is hereby acknowledged, Ihe said Cranlm do hereby graul and convey unlu Ihe said
'Cranlee
and assigns,
ALL THAT CERTAIN 101m piece ul' glllnnd wilh Ihe hllihling ,nlllllllpHlvelllelllslhercun crccled,silllale inlhe TowlI'
ship of Lower Allen, Connly of Clllllb..lalld ami Communwealth 01 I'elllllylvania, being mme flllly described on Ihal
cerlaln As Buill Plan of Fuxlea Itesldenlial Cummllnily Village One, l'Ia,e I, luwer Allen Tuwnship, Cumberland
Counly, Pennsylvania, as prepared by Gerril J. lIell. Assuciales, Inc., l'ngineelS & Surveyors, daled OClober 6, 1976
and lasl revised March 19, 1977, as !Ccurded in Ihe Omce of Ihe Recurder of Deedl of Cumberland Cuunly, Pennsyl.
vania on March 23, 19771n I'an Book 26,1'.ge 50, which Plan is herein incurpnraled by reference as ifherelo allached,
as unil number 50 in nuihling " H " cnnsilling 01' 4724 square feet and
described on said As Buiil Plan by meles a 11I1 bUllnds which descril'lIun is likewise hereinlncnrporaled by reference.
BEING pari of Ihe same premises which Ruberl U. Failur, Sheriff of Cllmberland Counly, by his Indenlure bearing
dale the 10lh day uf February A.D. 1977 and recurded ill Ihe om.. uf Ihe Ilecurding of Deed ill and for Ihe County
of Cumberland in Deed Bnok A.27 page 'J7, granled and cnnveyed IInlu I"afux Cmp.
TOGETHER wilh alllhe benefils and rights ul' easemenl and enjnymcnl as excepled and reserved by Fuxlea Nominee
Corp. and Foxlea Enlerprises, Inc. in ils Deed lu Cllmberland Counly Nallonal lIank and Trllst Company daled April
21, 1975 and duly recorded Inlhe Office Ill' Ihe Recurder Ill' Deeds in and fur Ihe ('Illlnly of Cumberland in Deed Book
A-26 page 303.
UNDER AND SUDJECT In the cny~nanh. I\."lIldIOIl\. CJ\l'uu:nh. ,:IIJr}:,,'), h\.'II~. 1\.'11115. ughh. a~r\.'\.'I1I\.'lIh. cundiliuns,
exceptiuns. reservatiuns and exclusiuns a~ "'11111;11I11",1 arHll1IlIu,' full)' \1.;'1 tllllh in Trllst Deed hctwccn Fllxlca Nominee
Corp. and Cumberland Cllumy Nallllnalllallk alld Trll\! ClIlllal'ny ,Iale,) NlIw,"he, ~ 1,11)73 alld recorded in Ihe Office
of Ihe Recorder of Deeds in and for Ihe Cllllnl)' Ill' Cllmberl'lIId ill Deed Illlllk K. ~5 page 912, as amended by Amend.
menl therelo dated AugusI 26, 1974 and duly rWllded in Ihe Om<e afllresaid in Deed Bollk T-25 page 470,and by
Amendmenl Iherelo daled April 21, 1975 alld duly recllrded in Ihe Ornce afuresaid in Deed Book A-26 page 303,
and any amendments to Ihe foregoing as III:1Y be lIIade frllllllime 10 lime.
UNDER AND SUBJECT 10 easemenls, rig/liS gran led 10 public IIIi1ilies and olher righls, covenanls and reslrlctions of
record.
TOGETHER wilh all and singul," Ihe iml''''Velllellls, ways, Slrecls, alley'. d,jveways, passages, walelS, waler.courses,
rights, liberlies, privileges, he,edlt'"l1en'. :lnd apl"lllen;lII<e., whal,"ever IInlll Ihe hereby gran led prelllises belonging,
or In any wise apperlaining and Ihe reversilln, :lnd relllailldels, rellls, i~,"CS, amlp",fils Ihereof; alld aU Ihe eSlale, rig/II,
tille, Inleresl, property, claim and demand whal.llever 111' Ihe said granlur, as well allaw as in equity. of, In and to Ihe
same.
TO !lAVE AND TO !lOlD Ihe ,ai.1 h'\5 alllllloe h<,<,lilamenl' alllll''''lIIi,", heleby grallled, or lIIenlioned and inlend.
cd so to be with the appurlcn;mccs, ulltn 1111,' \aill ~,.lIItCCS. their heir), I~rsunal n.,'lucsenlalivcs. successors ami assigns.
10 and for the only proper llse ,md behllof 111' Ihe ,aid Granle.., Iheir heirs, pelSonal represelllalives, successors and
assigns forever. SubjecI as afures:lid.
THE Gr:lOlecs. fur anc.I un bel",lf ul' the (;,:IltICl'\. 111t~ir hl'i". jlL'r\t1I1;1I rClnl'~nlaHvcs. successors and assigns. by
acccplalh.c ano rccorualiulI of Ihh DCl'd, ;1\.""'"I1\\'Il.',I~l' Ih:11 Ihi~ l"IIII\'l'yalh:e'is ..uhjed in evcry rcspcctlu Ihe aforesaid
Trust Deed by fl'xlea Nominl'~ CUlp. III C'lIInhl'lland ('IIUIlI)' N;IIIt1I1,tI H.lI1k ami Tru~t Company ....aled Nuvember 21.
1<)73 and recorded in Ihe Ofl'ke III' Ihe Ren"."" III 1)"",1s III alld tll' 1'''lIIloell:ond Cllllnly,Pennsylvania. ill Deed Book
K 25 page 91 2,asllmendedhy Amendmenlllle,elll dale.1 AII~'IS' 2h. 1'1701 and dilly recllrded inlhe OITice al'lIresaid In
Deed nook T - 25 page 470, :UIII by Amell.hllelll Ih,',eh, ,Ialed AI'"1 ~ 1 , 1'17~ allll dilly ,e<orded ill Ihe Ornce aforesaid
in Deed Rook ^ --26 page 30.3, anti any '\11I\.'III.ll1Il'IIIS 10 "Ia.' rllll'~tllllg as may he mall~ frllm lime hi limc, and all
Amendments Ihen:lo; acknuwledge Ih..t e:h:h :uhl \.'Vl.'IY provisilUl Ihell.'uf i~ cssentiallo Ihe sllccessful ul,eralion and
"'anagemenl of Fllxlea Residential Cllmmullily, and in Ihe be,l inlere,l. alld fllr Ihe bellefil of allllll Owners therein;
and covenant and agree, as a cuvenant running wilh Ihe land, 10 abide hy caw:h and every provisiun llf Ihe aforesaid
documenls. B "r1 28 298
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p.r.o~or,..;I"'~E (,f 11f~
RECOROl" or "rfe'S
CUHBEIIl!.~O ~~u~ rr
PEHN;;n{.S~I^
,.
..,
~[I' 21
" 04 AH '78
w hi ,..4", C.((~_
,n po....................
Climb, Co., PI.
? .'
'1/...c<1/ ,././1 IC(
School Di.t, Cumbo Co" P..'
',.'X. Rul (;"... Tun,'., h.
e _-1
I. 1 ~.-;.""'.'.:?) Am' J "I /""',"
,.....) '. I' ...... .
~ !, t", !II .. r _,' "
",b, Co, Di", Co I, Ag,. , .
,,,. ft"~l es.... 1""'_., 1.-
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.' 'I'. ,.
Cumbo Co. Dill. Col. AvI.
l\nb Ihe said Grantor dolh hereby covenanl 10 and with Ihe said Cranlor thaI, it, the said Grantor. its
successors, and a"igns, SIIAlL and WI1.L h)' Ihell' I"ell'nls, Warranl and forever derend Ihe herein above described
premises. wilh Ihe helelhlJlllcnls alld appulIcllarll':c!., unlu lhe said Gr:llllcc.
and a"igll', alt'Iin.1 Ihe said Granlll. and aKainsl rvrr)' lllher pelSlln lawfnlly claiming or who shall hcreafler claim Ihe
sallie ," any I'Mllhercuf. hy,I\~'(,;iUt:llitiU~;~,
Gonoroll<y' .
IN WITNESS WIIEREOF, Ihe said Granl'" has Cilll>cd Ihese prcsenl III be dilly execuled, Ihe day and year firsl above
wrilten.
On Ihis
LEAFOX CORPORATION
By:
!l'Lv..plvi......
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. - ~. ,-', ' C:::.q '!It
' / VIC€' eslde I
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Secrelary
Jerae;,'
Counly ur
Crunden
:14th
day of Aup,\Iot
,A.D.19 78
. before me, the undersigned
offj~er, personally appeared
JnmeG G. Ki llough
, who acknowledged himself to be the
Vice ('resident of Ihe said Crantor curpnraUon, and that he, as such Viee President, being
i1uhlurized 10 do so, execllled Ihe foregoing inslrument, I'm Ihe purpoll' therein contained, by signing the name of the
corporation by himself as Vi cc
President.
. ~ .. .:' / \
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'N",,"'" WIIEREO','''.''''.' my h..d... .m.. ~':l( , '<',' (1'.. !-?~J~~ ..
NANCY~. PAULL . ~,:':';'..,._.-.,.' , .',
NOtARY PUBLIC OF HEW JERSEY .. ~. , ~.
II, Commission EJpl,.s DeL 23, t919 ., ,.:, ;; :.' J ,':"-
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LAw OffICES
COOPER & CASPER
3003 North Front Sfreel
Horrlsburg. Pennsylvanlo 1711()'1224
717.234.4931
,
~
CHARLES LEESE and MARIE LEASE,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
vs.
.
.
.
.
FOXLEA HOMEOWNERS ASSOCIATION,
Defendant
: NO. 94-3064 civil
.
.
ANSWER WITH NEW MATTER
1. Admitted.
2. Admitted.
3. Admitted in part and denied in part. It is admitted that
Plaintiffs purchased a property within the Foxlea Residential
Community in or about August, 1978. It is denied that Plaintiffs
purchased the property at 15 Drexel Place. It is averred instead
that Plaintiffs reside at 50 Drexel Place.
4. Admitted in part and denied in part. It is admitted that
backups have apparently occurred. As to the duration, nature and
cause thereof, after reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
proof of these allegations of Paragraph 4 of the Complaint, such
allegations are therefore deemed denied and strict proof thereof is
demanded at trial.
5. Admitted in part and denied in part. It is admitted that
Plaintiffs have retained persons to clear out the sewer lines. As
to the payment allegation, after reasonable investigation,
Defendant is without knowledge or information sufficient to form a
belief as to the proof of this allegation of Paragraph 5 of the
.
Complaint, and such allegation is therefore deemed denied and
strict proof thereof is demanded at trial.
6. Denied. It is denied that Defendant has been aware of the
source since May, 1991, and that the source was due to a defect in
the main sewer line. It is averred instead that the Defendant
became aware of a problem in the main sewer line sometime in 1992
which it promptly had corrected.
7. Denied. It is averred instead that sometime prior to June
30, 1992, Plaintiffs reported sewer backup and flooding problems to
Lower Allen Township which contacted Defendant. Defendant, through
its President, Joseph piscioneri, retained a licensed plumber who
repaired a faulty joint between the main sewer line and the line to
Plaintiffs' house and replaced the line to Plaintiffs' house. The
work was inspected and approved by the Township on July 1, 1992,
and the problem was corrected.
S. Admitted.
9. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
proof of the allegations of Paragraph 4 of the Complaint, and such
allegations are therefore deemed denied and strict proof thereof is
demanded at trial.
10. After reasonable investigation, Defendant is without
knowledge or information sufficient to form a belief as to the
proof of the allegations of Paragraph 4 of the Complaint, and such
2
,
allegations are therefore deemed denied and strict proof thereof is
demanded at trial.
11. Denied. It is denied that piscioneri so instructed
Plaintiffs at that time or any other relevant time.
12. Denied. Piscioneri never so informed Plaintiffs' and
never had the authority to commit Defendant to reimburse
Plaintiffs.
l3. Denied. It is denied that piscioneri represented that
such matters, the alleged flooding in 1993, would be submitted to
the Association's insurance carrier.
l4. Admitted in part and denied in part. It is admitted that
Plaintiffs replaced their existing floor with a ceramic tile floor.
As to the cost thereof, after reasonable investigation, Defendant
is without knowledge or information sufficient to form a belief as
to the proof of this allegation, and such allegation is therefore
deemed denied and strict proof thereof is demanded at trial.
15. Denied for the reasons stated in Paragraph 13 of this
Answer and for the fact that piscioneri, at all relevant times
herein, never made the alleged representation.
16. Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the proof of the allegations of Paragraph 16 of the Complaint, and
such allegations are therefore deemed denied and strict proof
thereof is demanded at trial.
3
l7. Denied. After reasonable investigation, Defendant is
without knowledge or information sufficient to form a belief as to
the proof of the allegations of Paragraph 17 of the Complaint, and
such allegations are therefore deemed denied and strict proof
thereof is demanded at trial.
18. Denied. It is denied that a defect exists in the main
sewer system for which Defendant is responsible. As stated in
Paragraphs 6 and 7 of this Answer, the only known defect was
promptly and satisfactorily corrected as of July 1, 1992. Since
that time, no other defects have been found or proven to exist.
COUNT I
NEGLIGENCE
19. Paragraphs 1 through l8 hereof are incorporated herein as
if more fully set forth.
20. Admitted in part and denied in part. It is admitted that
the main sewer line is under the sole control of Defendant. It is
denied that all other sewer lines are under Defendant's sole
control. It is averred instead that portions of the sewer lines
not within the boundaries of Plaintiffs' residence but within the
respective boundaries of every other residence in Foxlea are under
the sole control of each homeowner.
4
21. Denied. It is averred instead that Defendant has such a
duty as to the sewer lines within the boundaries of the common
areas and under its control. Each respective homeowner is under
such a duty regarding the sewer lines within the boundaries of that
owner's residence.
22. Denied. Defendant has maintained that portion of the
sewage system for which it is responsible in satisfactory working
order.
23. Denied. Defendant has maintained that portion of the
sewage system for which it is responsible in satisfactory working
order and is not responsible for the alleged flooding.
24. Denied. It is denied that Plaintiffs have suffered
damages for the reasons alleged. Therefore, the alleged amounts
are unfounded. However, in the event that damages are proven to
exist, strict proof of the amounts thereof is demanded at trial.
25. Denied. For the reasons hereinbefore stated, it is
denied that Plaintiffs will continue to be so damaged and that
Defendant owes such a duty to Plaintiffs.
WHEREFORE, Defendant requests this Honorable Court to dismiss
Plaintiffs' Complaint and enter judgment in Defendant's favor and
against Plaintiffs, together with reasonable costs.
5
"
COUNT II
TRESPASS
26. Paragraphs 1 through 25 hereof are incorporated herein as
if more fully set forth herein.
27. Admitted with the clarification that Defendant so
controls only the portion of the system within the common areas.
2S. Denied for the reasons stated in Paragraphs 6, 22 and 23
of this Answer.
29. Denied for the reasons that no such defect has been found
or proven to exist.
30. Denied for the reasons that no such defect has been found
or proven to exist.
3l. Denied for the reason that Defendant is under no duty to
take such action.
32. Denied for the reasons that no such defect has been found
or proven to exist, and Defendant is under no duty to correct the
alleged defect.
WHEREFORE, Defendant requests this Honorable Court to dismiss
Plaintiffs' Complaint and enter judgment in Defendant's favor and
against Plaintiffs, together with reasonable costs.
6
COUNT III
NEGLIGENT MISREPRESENTATION
33. Paragraphs 1 through 32 hereof are incorporated herein as
if more fully set forth herein.
34. Denied. At all relevant times herein, Joseph Piscioneri
never made such a representation to Plaintiffs and did not have the
authority to so commit Defendant.
35. Denied for the reasons stated in Paragraph 34 of this
Answer.
36. Denied for the reasons stated in Paragraph 34 of this
Answer.
37. Denied for the reasons stated in Paragraph 34 of this
Answer.
3S. Denied. As stated in Paragraph 34 of this Answer,
Defendant did not engage in the alleged negligent and wrongful
conduct and, therefore, are not responsible for any of the alleged
damages and losses.
WHEREFORE, Defendant requests this Honorable Court to dismiss
Plaintiffs' Complaint and enter judgment in Defendant's favor and
against Plaintiffs, together with reasonable costs.
7
COUNT IV
BREACH OF CONTRACT
39. Paragraphs 1 through 3S hereof are incorporated herein as
if more fully set forth herein.
40. Admitted.
41. Admitted.
42. Denied. It is averred instead that Defendant has assumed
all rights and obligations of the Trustees set forth in the Trust
Deed.
43. Denied. Defendant has satisfactorily maintained the main
sewer system located within the common area and has not breached
such alleged contractual obligation.
44. Denied. It is denied that Defendant has breached any of
its alleged contractual obligations and, therefore, Plaintiffs have
not suffered damages as a result of such alleged breach.
45. Denied. No such alleged defect has been found or proven
to exist in the main sewer system, and Defendant has adequately
maintained the system. Therefore, Plaintiffs allegation is
unfounded.
WHEREFORE, Defendant requests this Honorable Court to dismiss
Plaintiffs' Complaint and enter judgment in Defendant's favor and
against Plaintiffs, together with reasonable costs.
8
COUNT V
BREACH OF IMPLIED CONTRACT
46. Paragraphs 1 through 45 hereof are incorporated herein as
if more fully set forth herein.
47. This allegation of the Complaint sets forth a legal
conclusion for which a responsive pleading is not necessary. To
the extent that a responsive pleading is deemed necessary, it is
denied that such an implied contract exists, for the obligation to
maintain the common areas is expressly set forth in the Trust Deed.
Upon obtaining their property, Plaintiffs became "Beneficiaries"
under the Trust Deed and thereby received the rights, privileges
and benefits of Beneficiaries set forth in said Deed.
4S. Denied. Defendant has properly maintained the main sewer
system within the common areas.
49. Admitted with the clarification that certain parts of
that system exist within the boundaries of each residence in
Foxlea.
50. Denied.
within the common
alleged obligation.
51. Denied for the reasons set forth in Paragraph 50 of this
Defendant has maintained the main sewer system
areas and thereby has not breached any such
Answer.
9
CHARLES LEESE and MARIE LEESE, I
I
Plaintiffs I
I
v. I
I
FOXLEA HOMEOWNERS ASSOCIATION, I
INC. , I
I
Defendant I
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO.1 94-3064 Civil
JURY TRIAL REQUESTED
ANSWER TO NEW MATTER
AND NOW, comes Plaintiffs Charles and Marie Leese, by and
through their attorney, the Offices of Fenstermacher and
Associates, and file this Answer to New Matter, as follows:
53. No responsive pleading is required.
54.
Denied.
Further, as set forth in Plaintiff's
Complaint, the main sewer system is under the sole control and
responsibility of Defendant. The only portion of the sewer system
which Defendant infers Plaintiff owns extends a distance of two (2)
feet from Plaintiff's residence as set forth in the Trust Deed.
Regardless of what the actual cause of the problems are, as long as
such cause originates in the main sewer lines, Defendant has a duty
I
.
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