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HomeMy WebLinkAbout02-3434ROBERT H. LAND1NO and FRANCES B. LANDINO, Plaintiffs, VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Oo~ - _~//~/ CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set fo~h in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs, VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. t~ ~. ~ t/~y CIVIL TERM CML ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs, ROBERT H. LAND1NO and FRANCES B. LANDINO, by and through their counsel, Gates, Halbruner & Hatch, P.C., and respectfully represent as follows: Robert H. Landino and Frances B. Landino (hereinafter "Plaintiffs"), husband and wife, are adult individuals currently residing at 1111 Fearrington Post, Pittsboro, North Carolina 27312. Defendant Son Pauch (hereinafter "Defendant Pauch") is an adult individual with a last known address of 2121 Old Hollow Road, Mechanicsburg, Pennsylvania 17055. Defendant Sophany Reth (hereinafter "Defendant Reth") is an adult individual with a last known address of 2121 Old Hollow Road, Mechanicsburg, Pennsylvania 17055. It is believed and therefore averred, that at ail times relevant hereto, Son Panch and Sophany Reth (hereinafter collectively "Defendants"), were a couple intending to be married, and maintained at least one joint bank account. 2 B~REACH OF CONTRACT Paragraphs 1 through 4 are hereby incorporated by reference as though more completely set forth herein. On or about July 29, 2001, Defendants appeared at the offices of Prudential Thompson Wood Real Estate in Camp Hill, Pennsylvania and executed a Standard Agreement for the Sale of Real Estate (the "Contract"). A copy of the Contract is attached hereto as Exhibit "A" and is incorporated herein by reference. The house and real estate that was the subject of the Contract was owned by the Plaintiffs and located at 776 Glen Arden Drive, Lewisberry, Falrview Township, York County, Pennsylvania. Plaintiffs subsequently also executed the Contract. On or about July 30, 2001, several changes were made on the face of the Contract, said changes were dated and initialed by the respective parties to the Contract. 10. Through the Contract, Defendants contracted to purchase Plaintiffs house for Three Hundred Sixty Thousand and 00/100 ($360,000.00) Dollars. 1 I. Defendants, in Paragraph 3(D) on page 1 of the Contract agreed to pay Ten Thousand and 00/I00 ($10,000.00) Dollars as a deposit. 12. On or about August 9, 2001, Defendants completed and delivered a check, drawn on their joint Nationwide Money Market Fund account, for Ten Thousand and 3 13. 14. 15. 16. 00/100 ($10,000.00) Dollars, to Prudential Thompson Wood Real Estate in Camp Hill, Pennsylvan/a. On or about August 15, 2001, the check for the deposit was returned "Not Paid" due to insufficient funds. The realtor for Prudential Thompson Wood Real Estate, Robert A. Mclntyre, Jr., contacted the Defendants, who assured him that they would come to Prudential Thompson Wood Real Estate in Camp Hill, Pennsylvania and pay the Ten Thousand and 00/100 ($10,000.00) Dollars. Defendants, to this date, have not paid any sum of money to either Prudential Thompson Wood Real Estate or to Plaintiffs. Numerous attempts to contact Defendants on the part of Robert A. Mclntyre, Jr., Realtor, have been unsuccessful. 17. Paragraph 27 on page 7 of the Contract states that the seller (Plaintiffs) may retain deposit monies as liquidated damages. 18. Defendants breached the Contract in that they failed to pay the deposit money. 19. Plaintiffs had expedited their moving plans due to Defendants' desire to move into the house by the end of August, 2001, and therefore, to avoid added moving expenses, Plaintiffs continued with their arrangements and moved to a new residence in North Carolina as planned. 20. As a result of this breach, Plaintiffs were fumed to maintain the house for several months until another buyer could be located, incurring substantial costs. 21. By reason of Defendants' breach of the Contract, Plaintiffs have been denied the 4 benefit of their bargain with Defendants, and Plaintiffs were forced to expend substantial time and expense as a result of the breach. 22. Plaintiffs relied, to their detriment, on Defendants' promises, in that they stopped looking for buyers for the house and real estate. 23. Plaintiffs are entitled to the Ten Thousand and 00/100 ($ I 0,000.00) Dollars deposit money as liquidated damages under the Contract. 24. In the alternative, Plaintiffs are entitled to reimbursement for the time, effort and money that was expended to maintain the property until another buyer could be found. WHEREFORE, Plaintiffs respectfully request the Court to enter judgment in their favor and against Defendants, jointly and severally, for damages in an amount not exceeding the threshold for compulsory arbitration under local rules, together with interest, costs, attorney fees and such other relief as the Court deems appropriate. Respectfully submitted, Date:~ ~UNER.~, &~. BY: Cory J. SnoOk, Es~ ' Attorney I.D. #85734 1013 Mumma Road, Suite 100 Lemoync, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) 5 VERIFICATION The forego/rig document is based upon information which has been gathered by my counsel in preparation of the lawsuit. The language of the document is that of counsel and is not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. ~ROBERT I~I. LANi~O 6 EXHIBIT AY~-2K SHERIFF'S CASE NO: 2002-03434 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND RETURN - NOT FOUND LANDINO ROBERT H ET AL VS PAUCH SON ET AL R. Thomas Kline duly sworn according to law, says, that he made a diligent inquiry for the within named defendant, DEFENDANT PAUCH SON unable to locate Him in his bailiwick. COMPLAINT & NOTICE ,Sheriff or Deputy Sheriff, who being search and but was He therefore returns the the within named DEFENDANT , PAUCH SON , NOT FOUND , as to PER POST OFFICE, MOVED AND LEFT NO FORWARDING. Sheriff's Costs: Docketing 18.00 Service 9.66 Not Found 5.00 Surcharge 10.00 .00 42.66 Sheriff of Cumberland County GATES HALBRUNER HATCH 08/01/2002 Sworn and subscribed to before me this ~.2 W~ day of~ ~0~ A.D. Prdtt~onotary SHERIFF'S RETURN - NOT FOUND CASE NO: 2002-03434 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND LANDINO ROBERT H ET AL VS PAUCH SON ET AL R. Thomas Kline duly sworn according to law, inquiry for the within named defendant, RETH SOPHANY ,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and DEFENDANT but was unable to locate Him in his bailiwick. COMPLAINT & NOTICE , He therefore returns the , NOT FOI/ND , as to the within named DEFENDANT , RETH SOPHANY PER POST OFFICE, MOVED AND LEFT NO FORWARDING. Sheriff's Costs: Docketing 6.00 Service .00 Not Found 5.00 Surcharge 10.00 .00 21.00 Thomas Kline Sheriff of Cumberland County GATES HALBRUNER HATCH 08/01/2002 Sworn and subscribed to before me this ~9~ day of ~ ~Z~O~ A.D. pzVot2hono t ary ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs, VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 3434 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: On July 19, 2002, a Complaint was filed in the above-captioned action. Service of process on both Defendants has been attempted but has not yet been completed. Pursuant to Pa.R.C.P. 401 (b)( 1 ), please mark the Complaint "Reinstated". Date: Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. Cory J. S~ook,~quire Attorney I.D. #85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) sHERIFF'S RETURN - oUT oF coUNTY 2002-03434 P sALTH oF pENNSYLVANIA: OF cuMBERLAND duly sworn according to law, and inquiry for the within named ~ ' ~ in his bailiwick- but was unable to locate ~ County, sheriff or Deputy sheriff who being search and that he made a diligent to wit: He therefore pennsylvania, to deputized the sheriff of the within cOMPLAINT & NOTICE serve '~e was in receipt of the attached return sheriff's costS: Docket lng 9 · 00 ~K1 ine county Out of county 10.00 sheriff of cumberland surcharge 31 · 50 Dep Dauphin Co .00 GATES HALBRUNER & HATCH sworn and subscribed to before me this ~ day of prothonotary SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-03434 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LANDINO ROBERT H ET AL VS PAUCH SON 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: RETH SOPHANY but was unable to locate Her in his bailiwick. deputized the sheriff of DAUPHIN County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, On October 2nd , 2002 , this office was in receipt of the to attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 10/02/2002 So answer · k. Th[~mas Kline Sheriff of Cumberland County GATES HALBRUNER & HATCH Sworn and subscribed to before me this ~ day of ~--~ ~ / ! Pgothonotary Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Han-isburg, Penn sylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin : LANDINO ROBERT H : PAUCH SON Sheriff's Return No. 2141-T - -2002 OTHER COUNTY NO. 02-3434 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for PAUCH SON the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FODI~D, September 26, 2002 NO LONGER AT THIS ADDRESS ADDRESS UNKNOWN Sworn and subscribed to PROTHONOTARY 2002 So Answers, Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's Costs: $31.50 PD 09/11/2002 RCPT NO 169044 Mary Jane Snyder Real Estate Deputy william T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin AND NOW:September 22, COMPLAINT RETH SOPHANY to DEFT of the original COMPLAINT to him/her the contents thereof at 1319 KITTATINNY ST HBG, PA 17104-0000 : LANDINO ROBERT H us : PAUCH SON Sheriff's Return No. 2141-T - -2002 OTHER COUNTY NO. 02-3434 2002 at 12:05PM served the within upon by personally b~nnding 1 true attested copy(les) and making known Sworn and subscribed to )efore me this 26TH day of SEPTEMBER, 2002 PROTHONOTARY So Answers, Sheriff o~C~, By Deputy Sheriff Sheriff's Costs: $31.50 PD 09/11/2002 RCPT NO 169044 TQ in The Court of Common Pleas of Cumberland County, Pennsylvania Robert H. Landino et al VS. Son Pauch et al SERVE: Son Pauch No. 02 3434 civil NOW, ~nfomber 4, 2002 hereby deputize the Sheriff of , I, SHERIFF OF CUMBERLAND COUNTY, PA, do Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA ~OW~ Affidavit of Service ,20 ,at o'clock M. served the -within upon at by handing to and made known to copy of the original So answers, the contents thereof. Sheriffof County, PA Sworn and subscribed before me this __ day of COSTS SERVICE MIl ,EAGE AFFIDAVIT In The Court of Common Pleas of Cumberland County, Pennsylvania Robert H. Landino et al VS. Son Pauch et al SERVE: Sophany Reth No. 02 3434 civil Now,. ,~,=nt-omb~r 4. 2002 hereby deputize the Sheriff of , I, SHERIFF OF CUMBERLAND COUNTY, PA, do Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Now, Affidavit of Service ,20 ,at o'clock M. served the within upon by handing to a and made known to copy of the original So answers, the contents thereof. Sheriff of County, PA Sworn and subscribed before me this __ day of ., 20__ COSTS SERVICE _ MILEAGE AFFIDAVIT ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs SON PAUCH, individually, and SOPHANY RETH, individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3434 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT SOPHANY RETH'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendant, Sophany Reth, by and through her attorneys, Mette, Evans & Woodside, and hereby files the within Preliminary Ob. jections to the Complaint pursuant to Pa. R.C.P. 1028, and in support thereof avers as roi]lows: 1. Plaintiffs, Robert and Frances Landino (herein the "Landinos"), filed a Complaint in the above-captioned action against the Defendants, Son Pauch (herein "Pauch") and Sophany Reth (herein "Reth"). 2. The Landinos allege in the Complaint that Pauch and Reth breached the Standard Agreement for the Sale of Real Estate (herein the "Agreement"), that they had entered into with the Landinos for the purchase of certain real property owned by the Landinos in that Pauch and Reth failed to pay a certain sum of money to the Landinos as required under the Agreement. A copy of the Agreement is attached hereto as Exhibit "A" and made a part hereof. 3. The Landinos allege in the Complaint that they are entitled to the $10,000.00 deposit as liquidated damages under the liquidated damages provision of the Agreement, or, alternatively, consequential damages. 4. Paragraph 27 of the Agreement specifically provides that the parties to the Agreement agreed that in the event of a breach by Pauch and Reth, "Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages." 5. The objections of Reth are directed to all or part of the allegations contained in the Complaint filed by the Landinos in the above-captioned matter. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER FOR LEGAL INSUFFICIENCY OF A PLEADING PURSUANT TO PA. R.C.P. 1028(a)(4) 6. Paragraphs 1 through 5 hereof are incorporated herein by reference. 7. In the Complaint, the Landinos have alleged that Pauch and Reth have breached the Agreement by their failure to pay the sum of $10,000.00 as required under paragraph 3(D) of the Agreement. 8. Following this alleged breach, the Landinos filed the within action requesting $10,000.00 as liquidated damages or, alternatively, consequential damages. 9. However, the liquidated damages provision of the Agreement expressly and clearly provides that the Landinos are limited to retaining only those sums of money actually paid to them by Pauch and Reth, including any deposit monies, as liqui.~ated damages. 10. Assuming arguendo, that Pauch and Reth breached the Agreement the only damages the Landinos would be entitled to under the liquidated damages provision of the Agreement would be any sums actually paid by Pauch and Reth prior to the breach which sums the Landinos would be entitled to retain as liquidated damages. -9.- 11. The Landinos cannot circumvent the liquidated dmnages provision of their contract by suing Pauch and Reth for non-payment of deposit monies and claiming that they would be entitled to retain the deposit monies under the liquidated damages provision if the deposit monies are awarded as damages in the above-captioned matter as averred in paragraph 23 of the Complaint. 12. Contrary to the averment of paragraph 23 of the Complaint, the Landinos are not entitled to sue Pauch and Reth for damages since they are only entitled to retain monies previously paid under the Agreement as provided for in the liquidated damages provision of paragraph 27 of the Agreement. 13. Likewise, the Landinos are not entitled to any consequential damages as the parties agreed at the time of entering into the Agreement that the Landinos would be limited to retaining monies paid by Pauch and Reth as liquidated damages, thereby foregoing any consequential damages which may arise as a result of a breach of the Agreement. WHEREFORE, Reth respectfully requests that the Court sustain Reth's objection in the nature of a demurrer and enter an Order dismissing the Complaint, as to Defendant, Sophany Reth, with prejudice. DATE: By: Respectfully submitted, METTE, EVANS & WOODSIDE James M. Strong, Esqui'~e Sup. Ct. I. D. #81095 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attomeys for Defendant Sophany Reth lNG BROKER [Comp'nY , suvms~: ~ tit ~ [ ~ ~ , . ..... ~[~ ~ ~ ~HI Sotllml~nl tL~ ~ made on or before: L'~'~ c,, ~.~.,=., ....... ~ .......... with uny ~her li~&ble mun cip~ se~l~. ~ ch~ ~e m ~ Pr~tat~ l~ m~ ~' {t 4. FIXTURE~ & PER.~iONAL PROPERTY IFliA/vA. iF APi~L~CA~L£ .,, tO. RI'L~DEN't'IAI. LF-~IO.nAS~D I'AIN'~ ila.7.~.l~ ~bCTlO~l ALT ~C£ ~ i '~1~ FO " 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 Federal Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Cory J. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 By: METTE, EVANS & WOODSIDE James M. Strong, Esqui~ Sup. Ct. I. D. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 15'110-0950 (717) 232-5000 Attorneys for Defendant Sophany Reth DATE: ~' 312398 ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs, VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3434 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO LIST CASE FOR ORAL ARGUMENT TO THE PROTHONOTARY: Please list thc within matter for the next Argument Court. 1. Thc matter to be argued is the Defendant Sophany Reth's Preliminary Objections to Plaintiffs' Complaint. 2. Names and addresses of all attorneys who will argue the case: (a) Plaintiff(s): Cory J. Snook, Esquire, Gates, Halbruncr & Hatch, P.C., 1013 Mumma Road, Suite 100, Lemoync, Pennsylvania 17043. (b) Defendant(s): James M. Strong, Esquire, Mettc, Evans & Woodsidc, 3401North Front Street, P.O. Box 5950, Harrisburg, Pennsylvania 17110. 3. Within two (2) days, I will notify all parties that this case has been listed for argument. 4. Argument Court Date: May 21, 2003 Dated: March 7, 2003 Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. Coryt/~. Sngjgl~, Esquire Attorney I.~D. #85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) CERTIFICATE OF SERVICE I, Cory J. Snook, Esquire, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served a tree and correct copy of the foregoing Praecipe to List Case for Oral Argument by First Class United States mail, postage prepaid, to the following individuals: James M. Strong, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 GATES, HALBRUNER & HATCH, P.C. Attorney ID No. 85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) Date: 2003 ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3434 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, SOPHANY RETH AND NOW, this defendant, Sophany Reth, are DENIED. BEFORE BAYLEY AND HESS. JJ. ORDER /~>" day of June, 2003, the preliminary objections of the BY THE COURT, ,A~ory J. Snook, Esquire For the Plaintiffs ~,~_ames M. Strong, Esquire For the Defendant Reth :rim /A. Hess, J. ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3434 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: pRELIMINARY OBJECTIONS OF DEFENDANT, SOPHANY RETH BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER Robert H. Landino and Frances B. Landino (hereinafter "plaintiffs") contracted to sell a parcel of real estate known as 776 Glen Arden Drive, Lewisberry, Fairview Township, York County, Pennsylvania to Son Pauch and Sophany Reth (hereinafter "defendants") for $360,000.00. An Agreement of Sale was executed by the parties on or about July 29, 2001. Subsequent revisions to the Agreement were initialed by the parties on July 30, 2001. Paragraph 3(D) of the Agreement obligated the defendants to pay a deposit to the plaintiffs in the amount of $10,000.00 by August 6, 2001. The agreement also contained a liquidated damages provision 27(C) which provided that in the event of a default by the buyer the seller would be limited to retaining sums of money paid by buyer, including any deposit monies, as liquidated damages. The contract provides, specifically, that in the event of a default: Seller is limited to retaining sums paid by Buyer, including deposit moneys, as liquidated damages. If Seller elects to retain all sums paid by Buyer, including deposit moneys, as liquidated damages, Buyer and Seller will be released from further liability or obligation and this Agreement will be VOID. - 02-3434 CIVIL A check in the amount of $10,000.00 was delivered on August 9, 2001 to the plaintiffs' real estate agent. The check was returned "not paid" due to insufficient funds on August 15, 2001. Thereinafier, the defendants did not perform any obligations under the contract and the plaintiffs later sold the property. Plaintiffs filed a complaint to recover damages as the result of the breach of the Agreement by the defendants. Defendant Sophany Reth has filed preliminary objections to plaintiffs' complaint in the nature of a demurrer. For the purposes of reviewing preliminary objections in the form of a demurrer, "ail well-pleaded material, factual averments and all inferences fairly deducible therefrom" are presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-942 (Pa. Super. 2000). When presented with preliminary objections whose end result would be the dismissal of a cause of action, a court should sustain the objections only where "it is clear and free from doubt all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief." Bourke v. Kazaras, 746 A.2d 642, 643 (Pa. Super. 1999). "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible." Bailey v. Stoflazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999). Liquidated damages provisions are part of the standard form agreements of sale prepared by the Pennsylvania Association of Realtors and used throughout the Commonwealth of Pennsylvania. They are permitted and enforceable "provided that at the time the parties enter into the contract, the sum agreed upon constitutes a reasonable 02-3434 CIVIL expectation of loss rather than an unlawful penalty." Carlos R. Leffier v. Hutter 696 A.2d 157, 162 (Pa. Super. Ct. 1997). The defendant argues that the plaintiff is only entitled to the money retained at the time of her breach. (Defendants Brief in Support of Preliminary Objections to Plaintiffs Complaint at 3.) Because the defendant's deposit check was not honored by the drawee, she contends there is nothing for the plaintiffs to retain. (Defendants Brief in Support of Preliminary Objections to Plaintiffs Complaint at 4.) The defendant counters that the plaintiffs are attempting to circumvent the liquidated damages provision. (Defendants Brief in Support of Preliminary Objections to Plaintiffs Complaint at 4.) "Where, in an agreement of sale of real estate, there is a provision for liquidated damages and the vendee repudiates the agreement the vendor is entitled to the sum agreed upon as liquidated damages." Tudesco v. Wilson, 60 A.2d 388, 390 (Pa. Super. 1948). In Tudesc0, buyers tendered deposit monies by way of two separate checks. 60 A.2d at 390. The buyers stopped payment before the sellers could cash the checks. Id. at 390. The agreement of sale contained a liquidated damages provision that provided the deposit made by the buyer may be retained by the seller. I_d. at 390. The defendants argued that because they canceled the checks the plaintiffs had nothing to retain. Id. at 390. The Pennsylvania Superior Court found for the sellers, noting: There is no merit to [the] argument that the word retained as used in the agreement restricts the liquidated damages to the retention of the cash deposit... When the vendee stopped payment on the checks there was nothing for the vendors to retain. Of course, the vendors could have brought action on the checks had they chosen to do so. But they chose, as was their right...to seek recovery of the sum specified in the liquidated damage clause of the agreement. To bar this action, as the 3 02-3434 CIVIL vendee would have us do, by his narrow construction of the liquidated damage clause.., would do violence to the clear intention of the parties... Id. at 390, emphasis in original. While the checks in Tudesco were canceled by the vendees, the check in the present case "bounced." There is no Pennsylvania precedent regarding bad deposit checks vis-h-vis a liquidated damage provision, however other jurisdictions have awarded sellers the full amount of the deposit when the buyer's check was not honored. Brodsky v. Linder, 118 A.2d 803 (D.C. 1955)( allowing recovery of liquidated damages in the amount of the deposit of an unpaid check.); Mori v. Bomac Industries, 358 So.2d 47 (Fla. Dist. Ct. App. 1978)( holding liquidated damages provision was not nullified when money was not deposited because check for that amount was returned for insufficient funds). Writing a bad check and stopping payment on a check are actions which are both attributable to the check writer. "A party cannot take advantage of his own wrongful act to set up his default or to nullify his contract or work its fi)rfeiture." Tudesco, 60 A.2d at 391. Because this case may present just such a scenario, we decline to sustain a demurrer.l Defendant also contends that awarding the plaintiff $10,000.00 would amount to an unlawful penalty and not a reasonable expectation of plaintiff's expected loss. This matter is more properly left to the finder of the facts. 1 The complaint alleges that $10,000.00 was paid as a "deposit." We note that, though the agreement was signed on July 29, 2001, the deposit was not due until August 6, 2001. Whether this circumstance has any impact on the ultimate disposition of this case must await a more developed record. 02-3434 CIVIL ORDER AND NOW, this ~'~ ' day of June, 2003, the preliminary objections of the defendant, Sophany Reth, are DENIED. BY THE COURT, Cory J. Snook, Esquire For the Plaintiffs James M. Strong, Esquire For the Defendant Reth :rlm 5 ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs SON PAUCH, individually, and SOPHANY RETH, individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3434 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT SOPHANY RETH'S ANSWER TO PLAINTIFFS' COMPLAINT AND NOW, comes the Defendant, Sophany Reth, by and through her attorneys, Mette, Evans & Woodside, and hereby files the within Answer to the Complaint, and in support thereof avers as follows: 1. Admitted. 2. Admitted. In further answer thereto, the Defendant, Son Pauch, has not resided with Ms. Reth since April of 2002 and Ms. Reth does not know Mr. Pauch's current address. 3. Admitted in part and denied in part. Ms. Reth's current address is 1319 Kittatinny Street, Harrisburg, Pennsylvania 17104. 4. Admitted in part and denied in part. It is admitted that Mr. Pauch and Ms. Reth dated for less than one year. It is also admitted that Ms. Reth did maintain a joint bank account with Mr. Pauch at the insistence of Mr. Pauch. It is specifically denied that Mr. Pauch and Ms. Reth ever intended to be married. COUNT I - BREACH OF CONTRACT 5. The responses in paragraphs 1 through 4 are incorporated herein by reference as if fully set forth. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Denied as stated. It is admitted that paragraph 3(D) of the Standard Agreement for the Sale of Real Estate appears to provide that the Buyer was to pay the Seller the sum ofTen Thousand ($10,000.00) Dollars on or before August 6, 2001. 12. Admitted in part and denied in part. It is admitted that Mr. Paueh signed and delivered a personal check drawn on the joint checking account in the amount ofTen Thousand ($10,000.00) Dollars to the realtor. It is specifically denied that Ms. Reth had any knowledge of or involvement with completing and/or delivering the check to the realtor. 13. After reasonable investigation Ms. Reth is without information and knowledge sufficient to form a belief as to the truth of the averments of paragraph 13 so that the averments are denied and proof thereof demanded. 14. Denied as stated. Mr. McIntyre did not contact Ms. Reth regarding the check and Ms. Reth never had any conversations with Mr. McIntyre regarding the stares of the check. After reasonable investigation Ms. Reth is without information and knowledge sufficient to form a -2- belief as to the truth of the remaining averments of paragraph 14 so that the remaining averments are denied and proof thereof demanded. 15. Admitted in part and denied in part. It is admitted that Ms. Reth has not paid any sum of money to Plaintiffs or the realtor. After reasonable investigation Ms. Reth is without information and knowledge sufficient to form a belief as to the truth of the remaining averments of paragraph 15 so that the remaining averments are denied and proof thereof demanded. 16. Denied. It is specifically denied that Mr. McIntyre ever attempted to contact or talk to Ms. Reth. After reasonable investigation Ms. Reth is without information and knowledge sufficient to form a belief as to the truth of the remaining averments of paragraph 16 so that the remaining averments are denied and proof thereof demanded. 17. The Agreement is a written document which speaks for itself. Ms. Reth denies the accuracy and completeness of Plaintiffs' attempt to describe, paraphrase and quote selectively the terms of the document. In further answer thereto paragraph 27 specifically states that the Plaintiffs are "limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages." 18. The averments of paragraph 18 are conclusions of law to which no response is required. 19. After reasonable investigation Ms. Reth is without information and knowledge sufficient to form a belief as to the truth of the averments of paragraph 19 so that the averments are denied and proof thereof demanded. 20. To the extent the averments of paragraph 20 are conclusions of law no response is required. As to the remaining averment of paragraph 20 after reasonable investigation Ms. Reth -3- is without information and knowledge sufficient to form a belief as to the troth of the averments of paragraph 20 so that the averments are denied and proof thereof demanded. 21. To the extent the averments of paragraph 21 are conclusions of law no response is required. As to the remaining averment of paragraph 21 after reasonable investigation Ms. Reth is without information and knowledge sufficient to form a belief as to the troth of the averments of paragraph 21 so that the averments are denied and proof thereof demanded. 22. After reasonable investigation Ms. Reth is without information and knowledge sufficient to form a belief as to the truth of the averments of paragraph 22 so that the averments are denied and proof thereof demanded. 23. The averments of paragraph 23 are conclusions of law to which no response is required. In further answer thereto, paragraph 27 of the Agreement is clear that the Plaintiffs are limited to retaining any sums paid by the Defendants as liquidated damages. Plaintiffs are not entitled to sue on the alleged breach of the Agreement. 24. The averments of paragraph 24 are conclusions of law to which no response is required. In further answer thereto, Plaintiffs are specifically limited to retaining any sums paid by the Defendants as liquidated damages. WHEREFORE, Defendant, Sophany Reth, respectfully requests that the Court enter judgment in her favor and dismiss the Complaint with prejudice. -4- NEW MATTER CROSSCLAIM OF DEFENDANT SOPHANY RETH v. DEFENDANT SON PAUCH 1. If it is determined that the Plaintiffs are entitled to recover damages, which is specifically denied, Ms. Reth demands that any judgment be entered solely against Mr. Pauch. 2. To the extent that Ms. Reth is found liable to Plaintiffs on any causes of action set forth in Plaintiffs' Complaint or subsequent amendments thereto, Ms. Reth demands that Mr. Pauch be held jointly and severally liable with her and/or that Ms. Reth is entitled to indemnity and/or contribution from Mr. Pauch and hereby demands judgment in the full amount of any such liability. WHEREFORE, Defendant, Sophany Reth, respectfully requests that in the event of a judgment in favor of the Plaintiffs that the judgment be entered solely against Defendant, Son Pauch. In the alternative, Defendant, Sophany Reth, respectfully requests that Defendant, Son Pauch, be held jointly and severally liable with Defendant, Sophany Reth, or liable over to her for indemnity and contribution and that the Court enter judgment on this crossclaim in the full amount of any liability found on the part of Defendant, Sophany Reth, against Defendant, Son Pauch. DATE: July 7, 2003 By: Respectfully submitted, METTE, EVANS & WOODSIDE James M. Strong, Esquire, Sup. Ct. I. D. #81093 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Sophany Reth VERIFICATION I, Sophany Reth, have read the foregoing document and to the extent that it contains facts supplied by me, they are true and correct to the best of my personal knowledge, information and belief; however, to the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this verification. I make this Verification subject to the penalties of 18 Pa. C.S. {}4904 relating to unswom falsification to authorities. Dated: :312224 _1 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 Federal Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Cory J. Snook, Esquire Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 METTE, EVANS & WOODSIDE James M. Strong, Esqui~ Sup. Ct. I. D. #81093'"---J 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Sophany Reth DATE: July 7, 2003 Godfrey & Courtney, P.C. BY: E. Ralph Godfrey, Esquire Attorney 1.D. No. 77052 P.O. Box 6280 Harrisburg, PA 17112 (717~ $403900 Attorney for Plaintiffs ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiff VS. PATRICIA L. MURPHY, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-3434 CIVIL TERM _. _- : CIVIL ACTION -LAW : JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of E. Ralph Godfrey, Esquire of Godfrey & Courmey, P.C. as counsel of record for the Plaintiffs in the above-referenced matter. Respectfully submitted, Dated: GODFRE/~URTNEY, P.C. '~lph/~dfre~, Es~ / Attomej¢ ID# 77052 P.O. Box 6280 H~sb~g, PA 17112 717-540-3900 A~omey for Pl~ntiffs ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiffs, VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3434 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please withdraw my appearance as attorney for Plaintiffs, Robert H. Landino and Frances B. Landino, in the above-captioned action. Respectfully Submitted, GATES, HALBRUNER & HATCH, P.C. Cory J. ~nook, F72rquire Attorney I.D. # 85734 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 717-731-9600 Date: July 2, 2003 ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiff VS. PATRICIA L. MURPHY, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-3434 CIVIL TERM ._ .- : CIVIL ACTION -LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 9th day of Juiy, 2003, I, E. Ralph Godfrey, Esquire, do hereby certify that I, this day, served a copy of the Praecipe to Enter Appearance and Praecipe to Withdraw Appearance by regular mail to the following parties: Cory J. Snook, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 James M. Strong, Esquire 3401 North From Street PO Box 5950 Harrisburg, PA 17110-0950 ROBERT H. LANDINO and FRANCES B. LAND/NO, Plaintiff VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3434 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED AND NOW, this __ petition, it is hereby /~.q~F' .~'~-t ~'-d, Esq., and ~ the above captioned action(s) as prayed for. ORDER OF COURT /.~ day of 003, in consideration of the foregoing decreed that - ' ' ordered and /q,/~¢~-, Esq. are appointed ~,bitrators in By the Court, Godfrey & Courtney, P.C. BY: E. Ralph Godfrey, Esquire Attorney I.D. No. 77052 P.O. Box 6280 Harrisburg, PA 17112 (717) 540~3900 ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiff VS. SON PAUCH, individually, and SOPHANY RETH, individually, Defendants Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3434 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED PETITION ]FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: I, E. Ralph Godfrey, Esquire, Counsel for the Plaintiffs in the above action(s), respectfully represent that: The above-captioned action(s) is at issue. The claim of the Plaintiff in the action is $10,000.00 The counterclaim of the defendant in the action is $ N/A. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: James M. Strong, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 THEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Date: Respectfully Submitted, GODFREY & COURTNEY, P.C. BY ~alp~ I.D. No. 77052 2215 Forest Hills Drive Suite 36 Harrisburg, PA 17112 (717) 540-3900 CERTIFICATE OF SERVICE AND NOW:, this ,~ day of September, 2003, I, E. Ralph Godfrey, Esquire, do hereby certify that I, this day, served a copy of the Petition by regular mail to the following parties: James M. Strong, Esquire 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0951) Godfrey & Courtney, P.C. BY: E. Ralph Godfrey, Esquire Attorney I.D. No. 77052 P.O. Box 6280 Harrisburg, PA 17112 Attorney for Plaintiffs ROBERT H. LANDINO and FRANCES B. LANDINO, Plaintiff VSo SON PAUCH, individually, and SOPHANY RETH, individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3434 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE~ SETTLE AND END Please mark the above-referenced matter marked as SETTLED, DISCONTiNUED and ENDED. Date: Respectfully Submitted, GODFREY & COUR'[2qEY, P.C. By ~( G~f~y, ~r~(ir e I.D.~ .77052 L/ 2215 Forest Hills '.Drive Suite 36 Harrisburg, PA 17112 (717) 540-3900 CERTIFICATE OF SERVICE AND NOW, this day of December, 2003, I. E. Ralph Godfrey, Esquire, do hereby certify that I, this day, served a copy of the Petition by regular mail1 to the following paxties: James M. Strong, Esquire 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950