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Home My WebLink About94-07107 ~ r'\ 13. I am not aware that Mr, Vernet made any substantial improvements to the property in which he resided subsequent to November 1993. 14. In response to Interrogatories, at paragraph 12, a copy of which are attached hereto as Exhibit "0", the Plaintiff indicated that he had made improvements to the real estate during 1993, in reliance on our alleged contract, and he specified to different types of repairs. IS. To my knowledge, none of the alleged listed improvements set forth in Plaintiffs Answers to Interrogatories referred to in paragraph 16 above, were of a substantial nature. Furthermore, I have not been provided with any receipts evidencing that Plaintiff incurred any expenses with respect to said alleged repairs and improvements. (See Exhibit "E" hereto). Moreover, nearly all of the claimed repairs constitute items which, if they were performed, were already the responsibility of Mr. Vernet under his written Lease, Exhibit "B" hereto, which Lease placed responsibility for maintaining the trailer in which he was residing on Mr. Vernet. 16. During his deposition, Plaintiff admitted that most of the repairs that he claims were made subsequent to the alleged contracted dated November 14, 1993, were cheap, (Vernet t' p. 70) and were done merely to keep the trailer livable while he resided there. (Vernet p. 74). Moreover, Mr. Vernet indicated in his deposition that the claimed improvements were not made with a view towards permanent use, but that he intended to vacate and abandon the trailer once - 4 - "'" ,--. he purchased the real estate, since the trailer W3.:l in such poor shape and condition. (Vernet p. 65). 17. Attached hereto as Exhibit "E" are copies of 12 receipts provided by Plaintiff, pursuant to a Request for Production of Documents, which receipts evidence repain allegedly made on the farm during 1993 by Mr, Vernet. Of the 12 receipts in question, only 2 fall after November 14, 1993, and those two only lotal $98.59. Even those 2 receipts contain no specific reference to what was purchased or where the materials were used. 18. A subdivision plan on my farm was required before any part of it could be sold. Mr. Vernet had approached the Township and was advised that without a right-of-way providing access to the portion he wished to purchase, no subdivision would occur. The dimensions and location of any such right-of-way were never finally agreed upon by Mr. Vernet and myself. 19. In his Complaint, Plaintiff asserts that he entered into an agreement for a right of first refusal for another portion of my farm. (Amended Complaint 1 4). 20. Aside from Plaintiff indicating to me in discussions that he desired to have a right of first refusal for part of the farm and causing a reference to that effect to be placed on the plan that he caused to he prepared, Plaintiff admits that no further details were ever discussed or agreed upon with respect to a possible right of first refusal. (Vernet p. 44, 79). - 5 - exhibit A ,~ ,"'~'~ ARRANGEMENT WITH DONALD VERNET September 12, 1988 Mrs. Warden and Donald Vernet have entered into an agreement concerning occupancy of t;,a,:: area of Mrs. 'tlarden' s farm as shown on the attached diagram. T;,e facts leading up to this arrangement are that the previous occupant of these premises not only did not take care of them and provide proper maintenance, but apparently either intentionally or unintentionally caused the premises to substantially deteriorate, Mr. Vernet, desiring to live in the area, and possessing various construction skills necessary to repair and restore the premises, suggested an arrangement ';Jhich Mrs. Warden ha3 generally agreed to. The arrangement essentially is that Mr. Vernet can have occupancy of the premises as shown on the attachment, and that initially the rent ';Jill be payable not in dollars, but in labor and services to be performed by him in repairing, maintaining and restoring the premises. Pursuant to the understanding of the parties, Mrs. Warden will pay for materials, as and if required, so long as Mr. Vernet first provides her or her agents, with infor:na tion concerning the activities to be performed, the nature of the rnated.als and labor required, and the estimated cost thereof. Subject to her prior approval, Mrs. Warden will also reiw.burse for all necessary outside labor (not incl~ding Mr. Vernet) required for all work except to the mobile home; any outside labor required for the mobile home will be the responsibility of Mr. Vernet, It is expe~ted that this arrangement would extend for the better part of o~e year from the date hereof. It is also understood that after the necessary substantial renovations and repairs have been completed, the parties will enter into a rental arrangement: whereby Mr. Vernet will pay rent in money rather than in services, under an arrangement which will be fair to both parties, He will continue to be responsible for all regular maintenance and repair of the occupied premises. It is understood and agreed by the parties that, so long as Mr. Vernet faithfully performs the services required in restoring, maintaining and preserving the premises, he shall be entitled to continue his occupancy of the premises indefini tely into the future, subject, however, to the right of Mrs, Warden to terminate his rights upon si~ month's notice. In the event that Mr. Vernet fails to carry out his duties and obligations in a satisfactory manner, his rights shall be subject to termination upon thirty days' notice. 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'c','...''', 01 ',,,,1"1, u,1II/".1 willi Ihl" h,J b,m ,,,,u/," ,,,,/ .I",..",,, J,/ ,IH' l,jJ ,,,11,, ",,,/0 I'"~ " 'Ht'r",iI"C ""11 1M .b"I" "..,h,,,I..I1,,,,. 10 "n", ",.I co,,/,.. ,.'/"",,., ",,11111 ,b, '"'' "f I'" flttU,tI I'" .".11 "0' 11, uh...I,J ., 411' nrrrtll Ih.""/. IlId ""7 ., "".".1, rx"nuJ /r".. 11",,10 11m,. "".1 it .1a further aqrt!ed itA tollows' 1) Tenant cannot sublot or rent any portion or premises tv ilnyone f!Lse. 2) All repairs and lMintenance or the mobile hnM ilud the (mt'.lre pr~mlsQ9 shall be performed and l-'iJld t'or hy tenant. "'ho Is IUlHly.lt'!d tu nlainl.llu LI1I1 pCI~mlse:J 1.. it clean iUll! lIei:l!:. condition, reroove aU trash and g.ubo1ql!. cut till) ltlwn and weods. @tc. J) TIJnant un~orstands that the other Itt'll;'\ut;. tlr. ;)nd lIrn. ~hinc!aL. h,,'..a .) right ot' cntr}' t'or thcmcclvc:: ~nd tholr vlsitoc!'I through tho subject premises. rJw toll.lllolt' 0/ ",UII bn"IJ. In \Vhn." TJhul1Il, ~", ,bo". II'fIll,,,. 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LOWE'S '.",.. CLERK ij 19566 I HH3 - " .. . ..: .... !l~; \\~~~!:F,~ \ \;::1 ~;.? :,;;ti~~lfl~'1i; ~'" GLg:~\:" :1l\ 'n"~8; . ,'.. .~o:~."';'::f!""~"'.~j>."I'i>:"4t~::t...\:....:.'.<;,';""";";' ..... T 5 0 '~~1 ~.~,., .',. .., .., ....~ .;".,.~ .... ._, ,,^...,. .'... CASH ENDER 0, 0 .",-f.;'V;,.~:.i'."";""""""'.'.1!!':.'I.'r..,!:,'" . .',." .... .,."w.. ..,._,;;;".."'.........,';,;.....,.. -';~j;/'.~"'r - :.~ '7.:.';,it:t~~ft:~~~,..~~~~:;;..::.~~,f{i; ~,,;;~.~:.,~.,;. CHANGE: 7.15 ,.... :' ,;". ~f...~~. .".., '.,' f",:..~1 ~""1J~J .-!~':';~'~ .~:~~~, .. ".;:..kl'.\I.l:,:J!,.; '., . " ..~/:::~/'~,:\i~~,,\~t;~~"'.~.'1V!li~~::,'f7 THANK YOU FOR SHOPPING LOWE'S':. .', :",:"". :...,...:.,:';_:;,<:~";~,..t~....)..~,,.',,:.;!:J.!Cl."'<"''' 0~05 07 11/07/93 12109 NO, 040 : ~,. -... ..; ." .,,". ",.~,. .' '".~"'~''''.r ~,..", . . ..' .. '-.' ....~.\".....,""..,::.LJo.:.....-... ',. '~ ' ,,,.,,,,..,,,.~...:,..,,,,, .,;l;..,:....:,:s-.,;.>:..:n:"" .; ,;n'. .>". '... 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ROH I HOOR..':.;.......2..".,-...' , . t' 'I ,t' ~', ..'..1'....':., \:1 . ,'f" ... . . . ...., ................., U Q.." 4110 . :~,. 8PIlCUL'lY ,H~~ONARY.'.' '. ....~~ SIMPSON. rBRRY RD, ~."". i.," :., ,:"'t'.,.:::,'.'.".,.. ~: PH:ILL,~':'PA .17011 .. '~~...."'.~.i.,. ~ ~ ... ..,.,',"., , . . '~"'. ."". , ~, cJ~ ~' ., .,. , .. .,. " ~ <7 I' ...., , , ,I . ! .'" " . . ;". ~ '1;'. ~.."" ,'! III" " .. .. .* .. III !II ...... .. " " llI: It...... * .. #It *._ *, ".~ ll! .... .... " .. *.. .. .. .. III .. .. CAS 'H S A.L B . .:...**............................................... .'.J. , ", . . ..' INITIAL H 1 .DATE TAX SKU UOH UNITS PRICE EXTENDED , 1 'rAKB Y 429~92 EACH 1 2.19 2.19 IIOGE ALUH HI IT F4-1/2 WHITE ++ ,..... . . ~ .,t. .,~. ''1'1iK'!r-. "'. y.,....... ' 4.4644 - .. PKG l' .a.."'~ 1. 23,' :.'" NAIL 1# FINISH BRIGHT CUP 08-D ,., ~ " TAKS Y 45245 PKG 1 5,98 5.98 NAIL 5# ROOF GALV BARBED 2 IN TAKE Y 122348 L IT 140 0,56 18.40 FINISH SPRUCE #2 lX8 ++ TAKB Y 16999.2 EACH 10 7,14 71,40 PLYWOOD LAUAN-HERANTI 5.2HH 4XB ORORSL++ , THANK HOORE'S -- YOU FOR SHOPPING AT CHIlCKED BY,. '. SUBTOTAL. TAX '159,:10 9,55 TOTAL CASH RECEIVED '. 168,75 200.75- 32.00 lit III . . LAST PAGEl 01:' PAGE. CHANGE DOCUHElNT .... 1 , UITID 0" TMUIINVOICI AAI AITURNA-Bll WITHIN )Q DA'f'S 0' PURCHASE IF ACCOl,lPANIED 1I11NVOICI. "'RCHAHDIS. MUST II IN A RUAlUBLl CQNDITION AND IS SUBJECT TO A 10..... JUHQ CHA"G1. ,",OOAl'S BlLLINQ DATI IS TMI25TH 0' I!ACH MONTH AND THE BALANCE 15 DUE Ll UPON RfCllPT 0' THI MONTHLY SUTI!IrolI!NT. A 'INANCE CHARCE Will BE APPLIED (IlOR IOUINey All PAISCAIBIDIN INI'0,.M"Tl0N ABOUT ",ooA(" CR!.DIT TERMS 'OR COMMERCIAL nAIL ACCOUNTS. SILL'" AND IUYI" SMALL 1II110UNO 8" THI! TERMS AND COUO.TIONS AP IHQ ON 10TH THI 'ROHT AND AIVIAS, SIOI HERIC' APPRO'dD SALE RE.IRlNcaNOJIIACIl_r_ .""'4'1'.......~"...,'E"'... ,.......,.,.w.""..~ "~'"'''' ,...... 10" Exhlbll F 1 :< J .. 5 r; 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 '\ 24 25 tl Exam./Cnnp~r - V~rn~t 2:1 baing pre~~red and si~nad rp.garding thp. far~? A. vas, it din. Q. I'm going ~n shn~ ynlJ Whd~ w~'ll rdf~r to ~g Vernet D~position Exhibit 1, which is a seven-page document, and if you could just take a ~econd tn lank at that. A. There was one prior t~ this, wasn't there? Q. Well, ! don't know. ! '11 You can tell me that. just show you the one that I have. I'll ask ynu about this, and then you can clarify what needs tn be clarified, Just keep that in front nf you for a second. MR, BANGS: Ho1.<i on to that. Refer tn that when he asks you questions. A. Okay. BY MR. COOPER: Q. There are two signatures in this document that I see. On Page 2, there's a signature above Donald Vernet. Is that your signature? A. Yes, it is. Q. And do you recall signing a document entitled, Arrangement With Donald Vernet? A. Yes. Q. Dated September 12th, 1988? 1\. Yes. FIL/lIS" .1f<WC.'S IlfPORTlNC ,flllKf H.'rrl"/lIIry :"1;-.lJrio.)f,lJ HJrk :"1:"-;I.n-,"':1 P\ IdIHJ.1Jl,'J127 1 ~ 3 4 7 5 6 7 II 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ,..-. gxam./Coop~~ - V~rne". 27 A. I would aive h~r copies at every receip". written and sianed. Anytirn.. she would pay for help, '"hich was only, I thinl<, one time, i". would always be signed. Everything was always on the up and up. Q, Okay, And how would she reimburse you? Was it always done by checl<, or was it sometimes cash? A. Always check, always a che"k. Q, Now, at some point in time was a formal lease arrangement entered into that sort of replaced this written aareement? A. Yes. Q. Okay. I'm going to show you what's been marked as Vernet Deposition Exhibit 2, and could you identify that for us? MR. COOPER: Here's an extra copy. MR. BANGS: Thanks. BY MR. COC'PER: Q. Have you seen that before? A. Yes. Q. Okay. On the second page is two signatures. Is the One above Donald Vernet your signature? A. Yes. Q. And would it be fair to say that this is the lease that you signed with Mrs. Warden that basically was referred to in this September, '88 arrangement fILIUS & .\lcLllC.IS REPORTlNC SEIlnCE HdrTIslJllI'J ;';".136--1161] \i"k ;"1;-.!1~5-,"1.'J P.\ l-I'fm..!J3.lJHi ."""'\ r-. Exam,;Cooper - V~rnet 1 of sayina th~t's the date that he ~areed to sell 2 me part of this f~rm? 3 He aareed several times before that, but that was ~, 4 the day that we had the price nailed down and he 5 aave me his reason for coming about to that price 6 and also the day that he si'!id he would take the 7 next step with Mr. Katzman to get the deed drawn 8 IIp in front of other people. 9 All right. Now, backing up a little bit, you Q. 10 mentioned that that nailed it down, but there were 11 prior conversations and discussions. Let's sort 12 of do it the same way we did it with Mr. Bendzin. 13 When was the first time you had a discussion with 14 Mr. Bendzin about the possible sale -- 15 Directly after his grandmother passed away. A. 16 Let me finish the question. About the possible Q. 17 sale of the farm, and you've now answered directly 18 What do you recall was after she passed away. 19 discussed specifically at that time? 20 Well, he had brought a six-pack of beer out to the A. 21 farm,: and we sat at the table and talked about, 22 you know, what is he going to do about this and 23 It was just basically a visit. And about that. 24 at that time I approached him that, as if he 25 didn't know, I'm very interested in FlUlI, & .\"Lt/C.H REPORTI.'1G SERI'lCE H..,riihllf'\' ;"1;".116./lri2J 'Yurk il:'.,i~l.tHJ.i 1'.-\ '-<jIJI'.ll1.~12;" you know, I J4 1 2 3 1:5 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .","" r- Exam./Cooper - Vernet. 65 you were 90in9 to be able to buy. A. Right. Q. Okay. A. Well, the trailer was definitely going to be out of there as soon as I could possibly get it out of there. And I had to fix the commode. I had to replace the commode and the water lines, because they just -- it was freezing. That one winter there was a lot of snow, it was real bad. But the improvements were in the water system. I had to bore through concrete footings, concrete slabs. I had to trench out the water line from the new well, which I had gotten drilled. And in order to save Andreas thousands of dollars, which I did, I went ahead and dug the trench out and backfilled everything after the water lines had been put in. Well, things in the trailer that I had done was carpeting and things like that that I was going to go ahead and remove after the trailer was torn:apart. And then I put the addition up. Q. Was that done between November of '93 and March of '94? A. Parts of it, parts of it. I needed to get more room, and I needed a way to get heat in there. FILIUS" .\r,.Ll1c.~s REPOIlTlIIG SERIKE HlIrri,llluv;"1;'..!.16./JIilJ ),,,4 71;".II.41.1;.4!.'i 1'.'\ l.sn/J.lJ.1.'J117 1. 2 1a 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '""'\ r Exam./Cooper - Vernet 74 A. Mr. Cooper, ther~ were always a lot of knickknack, nickel, dime things that I put int.o the farm, lumber, things like that. that I could bring home off my job and all that I would go ahead and put in. And for years I kept receipts and labor and all that, and I just explained to Andreas that, look, you know, this will all come out in the wash, and hopefully you'll do right by me. That's all I asked. So like I said, these thing~ don't mean anything to me. Q. Is it fair to say that most of these ten items essentially relate to just keeping the trailer up? A. Keeping it livable, yeah. Q. So you could live there? A. Exactly. Q. And that you worked permanent improvements to a place that you intended to continue to live in? A. I did the permanent things in the addition out there that I never really finished on account of not having things nailed down. Q. All Fight. Your attorney, Mr. Bangs, by a letter dated November 3, 1995, sent me a whole packet of different receipts and things like that. Did you provide him with a number of receipts that were -- you understood were to be provided to me? - FILIUS" .\r,LUC.\S REPORTlIIG SERVICE U..,rl,lmry ;'1;".lJ6.1162J )lJrJ.: :"'1;'-11.15-&#13 P.\ J.1I0.'.ll3..~J2i 1 2 3 4 5 6 7 8 9 10 11 12 13 19 14 15 16 17 18 19 20 21 22 23 24 25 A. .""'""\ r- Exam./Cooper - Vernet 78 Oh, yeah, yeah. There are receipt.s for what. I had put into the struct.ure, the roof, shinales, lumber, block, mortar, concret.e. There's even receipts in there, I believe, from repairs on the tractor. Q. Are you able to identify, w~en you go through A. these receipts, what work these items related to? They're pretty old. I mean, I see probably, you knoH, a minimum of 55 to 60 different masonry jobS a year. But what I have in there is what I used on the farm. I can walk you around it and point it out to you. Q. Was it your understanding that there was going to A. have to be a subdivision plan filed at the township and approved by the township before you'd ever be in a position to buy part of the Warden farm? No. I mean, I understood that it had to be approved, but I was under the impression that Mr. Katzman, upon Andreas and my meeting of November 14th'and already meeting with Mr. Katzman, that we already had a deal and it was nailed down and all we had to do was go through the paces, because I had never owned a piece of ground before in my life. FILIUS" .\"WC.IS REPORTING SERVICE "'lmdlllr,'l n;".~JIi.dfl:J 't'tJrk 7t;".".,!j.tt.H-i P_l t.,ilJlJ.!Jj.~JJ" 23 F.xam,/Cooper - Vernet o ~ Q. And did yoU agree to what is set forth in this 1 two-page document by signing it? :I There was some discussion afterwards betwe~n Mr. 3 A. Katzman, Mrs. Warden, and I about the amount of 4 labor and reimbursement for materials and things !i But he asked me if J generallY -- Ron 6 like that. Katzman asked me if I generallY agreed to this, 7 and J said, yean, with a little accent on we do 8 need, on the next lease or whatever, to get 9 10 squared away. 11 Q. All right. NoW, the third page of this document appears to be some sort of a drawing of the Q) 12 Again, was that prepared by you? 13 property. 14 A. Yes. And there are letters that correspond to different 15 Q. Is that the lettering 16 things on this drawing. 17 that you added to it? 18 A. Yes. This is a rough draft. Okay. And the next three pages consist of "To 19 Q. Whom it May Concern," actually four pages, a 20 document sort of in letter form that breaks down 21 into the trailer, shed, wagon shed, et cetera, the 22 various lettered portions of that drawing. Did 23 24 you prepare this letter? 25 A. Ve.., J did. '" lib l, .\kllll"" HI I'OHI'I,"C; ..;1,N\'It"I 1I11"j.IHlI~;'J;'-!lh.H.'11 ,,,,I. ;/;,.sn-hll." JI,II.~m'..!11,'I1!;' ~ 1 2 3 4 5 6 7 8 9 10 11 o 12 13 14 15 16 17 18 19 20 21 22 23 " 24 25 Q. A. Q. A. Q. A. F.xam./Cooper - Vernet 49 specifically and Raid, thank you, Lord, and smiled at him. And he said that he would call Mr. Katzman and make arrangements to make the final steps. And then I remember sliding down off the chair onto the floor, laying down and stretching out that plan. I laid it out on the floor. And Cindy and John were wanting to know about their property, which was, I believe, referred to as Lot 4 on that plan, that they were supposed to get that land. And that WaS -- we just went directly into that. They asked me the best place to lay out the barn and his house, his new house that they wanted to have under roof by spring on that day. What do you recall about -- There's a handwritten I did that. On that drawing? When I was laying on the floor. The barn and stable is your handwriting, drawing? Yes, yes, it is. I told him those would be the best spots, because I knew where the shelf was high, the water waR low, and a lot of good pasturp.. , 1111I"; (. \II' IILl" IU I'IINn\I;'" U\'I'" 1Io."j,I!llt~ ;o,;".! 11t-lIj'! I \,114 :-1:".''':''; ,,11.'1 ,'\ '-,'>/III! II-'Il!:' ~ r.A) .- ) l.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. F.Xrlm./r.ooppr - VHrnpt 51 with paints, because there'N a lot more money in paints, which he did with Rick Albright. Okay. After the discussion that you just related on November 14th, did you have any additional discussions about the farm or the sale of the farm? Yes, on the roof of the barn. And when did that take place? This was after a storm, the roof, it was tore open again, and Andreas came out to help me. I told him I didn't want to do it myself, I was still sick. I built the scaffold by myself, and I wanted someone there while I worked on it and would ap~reciate it if he would come and help me. And he climbed up on the roof and split his panta in half right off t.he bat and couldn't drive a nail in there, so he just sat on the top of the barn, and we talked about what the lines were going to be for sure after -- thin was already drawn on the drawing, but for sure we had it nailed down. The front property there, he wasn't going to sell that to me yet, the one that I had rights to first refusal on, Lot. ] T think it's liated, and that hp wOIIl cl 1 Ht. niP liSP the harn itncl the 111111" l. "II IILl't U1/'tlUII.\t; _";1 H\'IU 1/,,,,,_/,",, ;"J;".!lh,,",.'1 hll~ ~':-.~li ,,", ,', ,....1H/.!1I.'1l!7 55 Exam./Cooper - Vernet ft) know anything about this. I don't even know what 1 you're talking about. 2 And I guess that's when -- At the meeting, 3 John and Cindy didn't like Larry, SO Larry was 4 getting the cold shoulder. except for when Larry 5 and Andrnas and I walked outside by ourselves 6 Okay? It was likA a 7 getting away from Cindy. I can't 8 real childish type thing over there. 9 explain it. But the question I had was, did yoU ever see any 10 Q. pl~ns that Larry Zimmerman prepared? He moved 11 Yeah, he __ Larry had that plan there. o 12 A. 13 John and Cindy's ground. 14 (l. So he used Milt Davis's survey-- 15 A. Yes. --and put some extra drawings on or something? 16 Q. Yes. And also the right-of-way on the property 17 A. I can't say he did that. No, I can't say Larry 18 I don't knoW whether it was him or 19 did \:hat. 20 Milt. But that came throu~h Mr. Cook at the 21 township. 22 Q. Was that right-of-way shown on the plan the first 23 time Mr. Davis came in with it? 24 A. No. 25 Q. It WAS added later? ,"'lIS ff ."dllC\S HII'IJlUT"(; SIHrlCJ: If,UTI,hury: ;",;,_!lh.W,21 ,,"I. ;17_....~i.ldIS 1',\ 1.,'iIlU.!11-'1J2;" .0 4 5 6 7 8 9 10 11 o 12 13 14 15 16 17 18 19 20 21 22 23 -.J 24 25 1 Q. 2 A. 3 Q. A. Q. A. Q. A. Q. A. Q. A. ( Exam./Cooper - VernAt 70 Do you have receipt8 for that work? M08t likely, yeah, drywall and joint compound and screws and things like that. When did you put paneling in the living room? I put paneling in the living room -- it could have been right around November, early Uovember. I can't give you definite answer8 on that. I know I did it. Did you get -- To repair, make it look a little more, you know, re8pectable in there. And, of course, the living room is not something you planned on keeping long term, though, is it? No. It was cheap psneling. And to be honest with you, I don't care about any of that stuff. And the same is true with respect to the ceiling in the bathroom and the commodes, they were all items that you were going to get rid of? It was all cheap stuff actually, yes. Drywall is three something a sheet. Joint compound is eight bucks a bucket. What about replacing the carpeting, when did that happen? I replaced carpeting in the carpenter's shed probahly -- Now, that was given to me, also. '" H'" t. .\ld fit' to; IUI'IIHII,\'c; SU~\'IC" 1/,,,,,.11..,1.1 ;'17.!11111.,!1 '0,4 ;'I;"-,"'i-hH.'j ,,\ '.,'ifNI.!1I-'Hl7 I ~ ...j .' ~f'~ ,<,1_ I)" , ,- I Il' ,-,,,, ARRANGEMENT WITH DONALD VBRNET September 12, 1988 Mrs. Warden and Donald Vernet have entered into an agreemen t concerning occupancy of tha t area of Mrs. Warden's farm as shown on the attached diagram. The facts leading up to this arrangement are that the previous occupant of these premises not only did not take care of them and provide proper maintenance, but apparently either intentionally or unintentionally caused the premises to substantially deteriorate. Mr. Vernet, desiring to live in the area, and, possessing various construction skills necessary to repair and restore the premises, suggested an arrangement which Mrs. Warden has generally agreed to. The arrangement essentially is that Mr. Vernet can have occupancy of the premises as shown on the attachment, and that initially the rent will be payable not in dollars, but in labor and services to be performed by him in repairing, maintaining and restoring the premises. Pursuant to the understanding of the parties, Mrs. Warden will pay for materials, as and if required, so long as Mr. Vernet first provides her or her agents, with information concerning the activities to be performed, the nature of the materials and labor required, and the estimated cost thereof. Subject to her prior approval, Mrs. Warden will also reimburse for all necessary outside labor (not including Mr. Vernet) required for all work except to the mobile home; any outside labor required for the mobile home will be the responsibility of Mr. Vernet. It is expected that this arrangement would extend for the better part of one year from the date hereof. It is also understood that after the necessary substantial renovations and repairs have been completed, the parties will enter into a rental arrangement whereby Mr. Vernet will pay rent in money rather than in services, under an arrangement which will be fair to both parties. He will continue to be responsible for all regular maintenance and repair of the occupied premises. It is understood and agreed by the parties that, so long as Mr. Vernet faithfully performs the services required in restoring, maintaining and preserving the premises, he shall be entitled to continue his occupancy of the premises indefini tely into the future, subject, however, to the right of Mrs. Warden to terminate his rights upon six month's notice. In the event that Mr. Vernet fails to carry out his duties and obligations in a satisfactory manner, his rights shall be subject to termination upon thirty days' notice. ! Vt.tt.ne-r i DEPOSmON ! EXHIBIT ~ I I /1....-<1- L I) f))~ ~ Gll1>c.....<' /'t"..!' /1/6- ::c c "R,:'?I1)., H I ! i I ~ r'-- I ~;. I ,- .,,:,;... . y -- -'-. _.-" "---. C\. .--. -;p , .;.~ " " st::.:6J. c (1\, ~. -- C'- . "-T\ ;0 ...,.. lJ'\ :IS 0- o G' 1::> ~" .' ,- / ~,c. 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(ct~./~ "",hit. jl, ~ . ~ .' ~ '/:/~t" ~~~.' -J~~~~~~ ~/~ ~ .ddraJ-e~~u"c4;I~~ ~~r~~-0Z./??ZaM~.~~d/. , c. -21--~~' , . , /.~ .AC~~~~4~ ~ ~~(~~)~~~~-M~. ,J.~tV7~Ed. 3.~~{~ f)~ ~.~~d.c-~~~. ~.dandt4'lJ J~~A~~~...U,.l7!it4. O~~. 1t'mLiA~~ I~-On~~ ~ ~.A-Jl~ I ~.J?.l/d..:zt;;':zd ..$k~ ~..a~&. ~..k~-a/l2~~. ./}~~..d-?ecf~etU.!ff~ c: A/l/">~rJ. ~~4t?#~ :?#/k?_ ~~ ?Xc.. 'j) 'I. ~ , '. ~ I~ # .A~~'I ~zfYtlc/ #-!x/2L< I.LCLL.~Cit?, .~ ..dC/~~~..a-rd..JcdZiq~~. \. 't1,~~~~ ({) 1fiatf~-<Yd~rj7~#.R/'~A~~udI ~~ ~~~~JI~bZ-<-<,~~6;. 6. ~ J. ~/d~{~)~.a<<~~~~-dCdtoZ. ;/-~..d~~A,. o.~ .0='. J-~~. y:~~ . _~-W/ ~~~~ij~ 5:~ _' ~~ ',' @~>>ZfJ#Me~~~~~~/~ -?i~.~J . #~~. /~~~~#~~ z-.~ /. ./??""'V'~~ ~ /ffiD/?c;x j/ --<V~....-~ : ~~~~e.kt.~~ ~d./??'~~ ~L-le'c1-b~;j~J~&' v: (j) ~~'~~d'aac/~~~~. . t:' ~ ~~~~~4'ta./'~~/?7~<<:/ ~. :~d;~~~~~/?7?~. ~~~~-'-'4'~' : . '1:!~.: ~~...d,,~~ '~A-~~~. .". ',(~.A.L/J.b"..k /a? "'':pt~ ~-a,&;t:;4J. . ~~$ ~~d~~d/,/9J';r.J? ''41J~? '?:;-Ik~~~~~ ~h~ht :a~~ ~d~4(/4~-:C~~/Jt7J4'.-~d~ ~~~O.o~~.a;~~~~a/~-+~~ .de.. -4~ -<1/'dJ7...1tu~ -.;C{. ~ .A;r::" ~ -&/b-2bkt-~eAV.I7?ef&7~...&4 ~ '4~dJ~~~(~)~ UL..dt)~"'-1 .Ad:;~~~~4~.4!t.7/-<'i .A/'4.4c1..cn-r ...4/~?/J.h ~~ . :P-~~~zt~a-Aa&~~~~k/ ~~,J)~~~~~A~ ~~flJ ~~4??1'..A<U?4~. J}--k.:7~.L%;~ .[)pcV-d.:!~~~~/~-d~~~~ ~c:P~~-u~. ~~-k/7'~.e'~~ A'a/2I2#J;~ ~;dd..nn.l~~~.& ~-It.M~(./1~M~Ld~~M~.dL~. -c~:ffFa:;?"ad, . /t-/#' t!%;~. 2&c ~>>d/~$.'" ~d1:u~d4 4. /?OS5 -# l'///C791-dc.fO ./ " I v'utll( f' j DEPOSITION . EXHIBIT It ., , /I ',.. ".- ".. , \Jl'v...t- D.T- (, y\", 'l.- -- , HOUle Leite No. 550 1 wIlt!l Agreement AI.J. IbI. F I rat. d.y .1 ApI'l 1 A,D. "90 h,lw". HEDWIG WARDEN hmln./lrr lIyl,d Ib, p../y ./Ib. finl p"'. .nd DONAI,D VERNET hmln./I" lIyl,d Ih, p../y ./Ih, ",.nd p..,. Witn'''<lh, Ih., 1111 ,.1.1 p../y ./Ih, finl pori, I. ,..,M,,,lIo. 0/ Ih, "./, ...1 '..In"'/ b",- ./1" m,.II"",J. d"lh tltm", .".1 /"" IInl" Ih, ,./J p..ly 0/ Ih, ",.n,1 pori I. b, u"d .. . Dwe IIi ng . Ih, prlml'" ,lIu.l, I. Ih, S il ve r Spring Township COllnly 0/ Cumberland ,..1 Com",..w,.lib ./ P,... .'),Ja...,tl., Jtur.'b,J III 1 followl: Mobile home on Warden farm located along Conodoguinet creek, including all areas except those under lease to Mr. and Mrs. RiCk Shlndel. u"lo Ih, ,.,J p..ly 0/ Ih, "'0".1 p..I, II/bl,,1 10 1111 ,m,dill",. o{ Ihl, '&"'" o. Ih, Fir s t (1 s t ) tI.y o{ 1990 ,.,,,1,,,.11.&.. Ih, Thirty-First (31st) d.y ./ Ma rch 19 9' In Consider..ion of Which Ih, ..1.1 p..ly 01 1111 ",o,d p..1 'R,rr. 10 p.y I. Ih. ,./J p..ly .{ Ih, finl p.., ., R,,,I 10' Ih, Ult .nJ ,,<<up,"ey o/Ih, ..1.1 /"'''',.... Ih, "'". o{ One Thousand TIm Hundred ($1,200.00).1.1/"" p.y.b/. .1 Ih. ",/J,.rt ollh, p..ly 1l{111I firsl p..l. .1"".,,,1 /., ,.1.1 "nl on Ib, d,,,,I,,d p"",',n h,ln& ,../.,.1. .. 101/.,... vi:: To I.... and 10 Hold nlt'" {., Ih. Imll h'glnnln& ApI'll Payable at the rate of One Hundred Dollars ($100.00) per month. AI . FurthC'!' 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Ib, P,o,boool..y or ..y .110'0" .. .fo....IJ I, h",by '"lhoriuJ 10 .pp.., for .nJ 10 ronfmj"J"m,,,1 1/1 .. ...k.b/. .rllo" of ,/,,101'01 'g.ln,1 Ih, ..IJ p../y of Ih. Itro"J p.., ."J I" f.vo, of Ib,..1 P"I,v of Ib, !."I P.,I 0' hi. b,I", '''''1110''. .J..I"I.I",o" ."J ...1,.. for I'" p...,tI", '",tI" J""lb,J, ."J 10 JI"rl I , ImostJI.I, 1...1/1' of . ",,11 of b.b". f"l.. po..",lom,,, ",lIh ,1."" 0' 1i,,1 f.,l.. for '0'1.. ",.Ivl", .IIJ "/uli", .11 J,f,eI. ."J "'0". ."J ",.Ivl", .11 ri,hl. 0' d.y ."J 0' .pt,il, ",lIbo,,1 .0/1" .0J .L'ilbolll ..ltlll~ I"v, of ,ou,I, II I. f",lb" .,,,,J I"d Ib, I"m. .nJ conJ/IIoo. of Ibl. ""'01'''1 ..J I,." ,h.11 I" "0 ",.y b, ,lu""J 0' .11,,,,1 uuPI by . ",,/II.~ .lgo,J b, .11 Ih. p"/I,, hmlo; .0J If '''' "IJ po,/y of Ih, II'On4 PO,I ,h.ll ""nlln", I" po""'lo,, of Ih, "IJ p"..I", .fl" Ih, ,,,pl../lo,, 0' ,,1/ I"... II Ih, oPllo" 0' ,''' ..IJ P"/y of Ih, fi,,1 p"l IIIrb ho/Ji", ov" m.y b, hrlJ ."J J"..,J . "",,,,.1 of Ihl. .,,,",,,,,, for ..01"" Ilu I,,,,, ,''' ..... .. Ibough . IIt1V .g",m,,,1 of 1,.1i",. M",/I,.I ",lIh Ibl.. h.J b"" ,,,,,ul,J ,,,J J,llv",J by I'" ..IJ p"/I,, ",,,10 for . .UU"JI08 I",. Ih, .bov, ."lbo,I../loo. 10 .n,.r ."J ro"f", /"J,,,,,,"1 .,.1"" I'" P"/y of Ih. ",ooJ p..1 .b.1I nol b, ",h.ud,J b, 00' ",,,rI,, IL,,,of, hi m.y b, "p,II,J/y ,,,,,rlml from /I"" 10 /I..,. A"J it ,is further agreed as follows: 1) Tenant cannot sublet or rent any portion of premises to anyone else. 2) All repairs and maintenance of the mobile home and the entire premises shall be performed and paid for by tenant, who is ubliYdted to maintaill tht! prcmiseu ill a clean and nedt condition, remove all trash and garbage, cut the lawn and weeds, etc. 3) Tenant understands that the other tenant, Hr. and Hrs. Shindcl, have a right of cntrr for th=elvcc ilnd their visitors through the SUbject premises. Tb, ro.J/IIo., of Ibir p..ll" b."lo, In Wiln... Wher..f, fi,,1 .bov, wrlll,.. """"'111 .b.11 ,,,1"'" 10 Ib, htl", ,,,,,,,10", .JmlnJJlrllor, .n4 .,d,... 0' III I'" lb. plll'/I" .fo",,1/ ""v, bmulllo ,,1 Ibtl, b.ntI, ."" ",1, I"" 41tta;.r 4rbl~V- J., ."J y.., IN THE PRESENCE OF CD CD CD CD .'~4,i~ HEDWIG WARD ~I ~ I! ~ i ~ '" '" Ii f - - l ..J .. .. .. .. .. .. .. .. .. .. .. .. c.. Jo ~.. g} ~ l t-" ~ il &l c.. ~ . ~~ III .... ~ ~ ~r ... .... & ... III , . ,Q :11! . f ... I ': 1 .Ii .Ii r I ~ ~ ~ ~ .. E '::! 1 ll. E ~ wi .t ~ ~ :i II -a- ~ ~ oj ~ ~ .. ... k __Jt~ ~ - - ~ '" 0 Q " 0 1 "1~' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 DONALD VERNF.T, IN THF. r.OURT OF COMMON PLEAS Plaintiff CIIHRF.RLJ':D r.OUNTY, V8. PENNSYJ,VANJA ANDRF.AS RF:NDZIN, No. 94-7107 r.iviJ Term Defendant civil Action F:quity Deposition of: DONALD VF.RNET Taken by Defendant Date November ~O, 1995; 3:30 p.m. Place 320E Market Street Strawberry Square Harrisburg, Pennsylvania Before Lori A. Shirk, Notary Public Regist.ered Professional Reporter " ~.,. I , APPEARANCF.S: ! .: ~ " , LAW OFFJCES OF MICHAEL L. BANGS By: MICHAEL L. BANGS, FoSO, , n , : I ( ) , .Iil ", .-') For - Plaintiff c.:: ~.;. GOLDBERG, KATZMAN & SHIPMAN, P.C. By: J. JAY COOPER, F.SO. For - Defendant I'Il.HlS b Ild.l/C.1S U1,l'll/mN,; Sf/mer: "il"id,lIrv iJ;".:!.1tJ.IJh!l l.It" 7'7.IUi.I~'.'1 g\ ....IIHJ-llJ.'1l27 ,/") , 12 -- . '\ '"j Exam./Cooper - Vernet 48 1 Approximately 11 o'clock in the morning. A. 2 And specifically -- and r'm very interested in Q. .1 spec~fic conversations here -- what was said 4 between you and Andy Bendzin about a possible sale 5 of part of the Warden farm from Mr. Bendzin to you 6 at this date, at this time? 7 His exact words were, before anything, I'd like to A. 8 get this resolved. r can't say he said 9 "resolved," bu~ he said something thereabouts. He 10 wanted to get that cleared up and get that taken 11 care of, because he knew I was just bubbling to 12 find out what was going to happen here. 13 So he started explaining to me how he had 14 come to the conclusion of taking the assessed 15 value of the farm and what he paid as per his 16 grandmother's death and his inheritance, and he 17 divided it somehow or another, came down to 18 approximately $7,000 an acre, and he wanted to IS give me that tor half price. And I stopped him. 20 and I said, well, Andreas, that's 1.87. Oh, 21 whatever, he said. It's 1.87 acres tor that lot. 22 And he said. well, what do you think about 23 $3500? Now, he says 3,000, but I'm almost 24 positive it was 3500, because it was halt of 25 7,000. And I said, sold. I leaned my head back , IUU' ,. ,lId.UC.'S 11/./'0// fI.'.;(; " InKr "'I"""IH~ ;1;-.~lh.I,"H \illl :"r;".....H.'>4".i '" ,....ul/.!lI.'II!i' GD l :]) , 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 Q. A. Q. A. Q. A. Exam./Cooper - Vernet 49 specifically and said, thank you, Lord, and smiled at him. And he said that he would call Mr. Katzman and make arrangements to make the final steps. And then I remember Sliding down off the chair onto the floor, laying down and stretching out that plan. I laid it out on the floor. And Cindy and John were wanting to know about their property, which was, I believe, referred to as Lot 4 on that plan, that they were supposed to get that land. And that was -- we just went directly into that. They asked me the best place to lay out the barn and his house, his new house that they wanted to have under roof by spring on that day. What do you recall about -- There's a handwritten I did that. On that drawing? When I was laying on the floor. The barn and stable is your handwriting, drawing? Yes, yes, it is. I told him those would be the best spots, because I knew where the shelf was high, the water was low, and a lot of good pasture. nULls '"lkLLlCIS llEr>ORTI.'I!G SE:1l\'lCE "',"uhll1'1l :iI:.~Jh.f)t,21 \ilrl. 7I7.1l~'i.tWIS 1'.\ '.,'/IHI..!J}.1J)27 CD 'J) '; ',~,-) 13 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Exam./Cooper - Vernet 51 with paints, because there's a lot more money in paints, which he did with Rick Albright. Okay. After the discussion that you just related on November 14th, did you have any additional discussions about the farm or the sale of the farm? Yes, on the roof of the barn. And when did that take place? This was after a storm, the roof, it was tore open again, and Andreas came out to help me. I told him I didn't want to do it myself, I was still sick. I built the scaffold by myself, and I wanted someone there while I worked on it and would appreciat.e it if he would come and help me. And he climbed up on the roof and split his pants in half right off the bat and couldn't drive a nail in there, so he just sat on the top of the barn, and we talked about what the lines were going to be for sure after -- this was already drawn on the drawing, but for sure we had it nailed down. The front property there, he wasn't going to sell that to me yet, the one that I had rights to first refusal on, Lot 3 I think it's listed, and that he would let mo USA the barn and the flLllIS t< ,lkWC\S II[J'O/lT/o'IIG SLIlI'IC[ U.,rriJh,,'X 71;"-l.1b-IIfIIJ \ilrA. 7';".84i-b.WI 1'.\ J-,'lOO-lJJ-lIJ1. Exam./Cooper - Vernet (") "+4,,1 J 1 you were going to be able to buy. 2 A. Right. 3 Q. Okay, 16 Well, the trailer was definitely going to be out 4 A. 5 of there as soon as I could possibly get it out of 6 there. And I had to fix the commode. I had to 7 replace the commode and the water lines, because 8 they just -- it was freezing. That one winter 9 there was a lot of snow, it was real bad. 10 But the improvements were in the water 11 system. I had to bore through concrete footings, D t!oncrete slabs. I had to trench out the water , 12 13 line from the new well, which I had gotten 14 drilled. And in order to save Andreas thousande 15 of dollars, which I did, I went ahead and dug the ;~ 16 trench out and backfilled everything after tqe 17 water lines had been put in. 18 Well, things in the trailer that I had done 19 was carpeting and things like that that I was 20 going to go ahead and remove after the trailec was 21 torn apart. And then I put the addition up. 22 Q. Was that done between November of '93 and March of 23 '94? 24 A. Parts of it, parts of it. I needed to get more 25 room, and I needed a way to get heat in there. /'lUllS" ,\I.we,IS Im'l)/m,~(; SUlI'/LT Jldrruhu,~i'I:'.!lh.tk,n \llr.l iI7.,"H.h~','i fI.\ 1-I'",".2J1.11117 65 () .,,.1" :) I ./ \;pr ','-- "\\)~ ~ ARRANGEMENT WITH DONALD Vl!RNET September 12, 1988 Mrs. Warden and Donald Vernet have entered into an agreement concerning occupancy of that area of Mrs. Warden's farm as shown on the attached diagram. The facts leading up to this arrangement are that the previous occupant of these premises not only did not take care of them and provide proper maintenance, but apparently either intentionally or unintentionally caused the premises to substantially dl!'teriorate. Mr. Vernet, desiring to live in the area, and.. possessing various construction skills necessary to repair and restore the premises, suggested an arrangement which Mrs. Warden has generally agreed to. The arrangement essentially is that Mr. Vernet can have occupancy of the premises as shown on the attachment, and that initially the rent will be payable not in dollars, but in labor and services to be performed by him in repairing, maintaining and restoring the premises. Pursuant to the understanding of the parties, Mrs. Warden will pay for materials, as and if required, so long as Mr. Vernet first provides her or her agents, with information concerning the activities to be performed, the nature of the materials and labor required, and the estimated cost thereof. Subject to her prior approval, Mrs. Warden will also reimburse for all necessary outside labor (not including Mr. Vernet) required for all work excep'; to the mobile home; any outside labor required for the mobile home will be the responsibility of Mr. Vernet. It is expected that this arrangement would extend for the better part of one year from the date hereof. It is also understood that after the necessary substantial renovations and repairs have been completed, the parties will enter into a rental arrangement whereby Mr. Vernet will pay rent in money rather than in services, under an arrangement which will be fair to both parties. He will continue to be responsible for all regular maintenance and repair of the occupied premises. It is understood and agreed by the parties that, so long as Mr. Vernet faithfully performs the services required in restoring, maintaining and preserving the premises, he shall be entitled to continue his occupancy of the premises indefinitely into the future, subject, however, to the right of Mrs. Warden to terminate his rights upon six month's notice. In the event that Mr. Vernet fails to carry out his duties and obligations in a satisfactory manner, his rights shall be subject to termination upon thirty days' notice. , Vt..JC.ne-r I DEPOSITION ! EXHIBIT.. 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' ~-brf: ~ ~ d~~d/J /~yr &;~ 4ZJ~t/ 'G.k~/f~~ta~~~ ~~z~ ~ ~~~.. ~d.2'lt-?(,./.A'~ -!~~W/ /JZ;lAa-~~~ ~,.<~o,oo~.~4~~~~aJ~~~ .4.L<#~..de:...4~.4/dfl~.4~ :2!;~./ -:f)~dd'~-di~f!~dJ~.-aa ~ ~4~J~~~(~)~ ~u-dt)~~e-,.Ad~~~?j/i2t~.4Iae(i , ~~~..d7!...a/~$..h~~. ;)t-P~~a#c~Az6Z~~~~k ~~cfJ~A&a~~~~~ .4?~~7J'.a/~P4??1.A~-<f.~ . J}~.:7~..2fltA/~ .g~_a~~.2Zt~~/.&--4~./j/lY~~ ~~.-k~d!-upnt. ~~ft./~.e'.da0'.A~...z;~ ~:a~~~~~.t., $./eM~(.Z1~'51~La-l.f' c/~ ~.LU-~. ~~ /. ar;;p.~ . ;z~ff4 2&c ~/~k?III/~(" ~c/lu~d4 4. /?tJS5 .,;;:. //I/(df!J-olC,fO / .....---' . 'J -...) , , (f.1<n( t I DEPOSmON EXHIBI1'It~ I /I'''' 'I. ,.. \l ~ (1"4 t- l}r. (<. ~ 1.- No. 550 l~-- HOUI. Lei'. ID111n Agreement Md.,hi. First ,., 0' April A.D. "90 hllw". HEDWIG WARDEN h,..,I."I" ,lyl.J Ib, '''1, 0' Ib, fi,,' '''1, ..J DONALD VERNET bt"I.,{ln ,'yI" Ib, ,,,Iy 0' Ib, ,uo.J ,.,1. Wl'n.....h. 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A"J it.is further agreed as follows: 1) Tenant cannot sublet or rent any portion of premises to anyone else. 2) All repairs and maintenance of the mobile home and the entire premises shall be performed and paid for by tenant. who is obliyated to maintain thtl premisea i/l a clean and neat condition. remove all trash and garbage, cut the lawn and weeds. etc. 3) Tenant understands that the other tenant. IIr. und Ilrs. Shindcl. rovo u right of cnttJ. for thCll1Dclvc:; ilnd their visitors through the subject premises. T'" ~onJ/Uo", of Ihil 'g'II1II",' .hJl ,xlnsJ 10 '''' h,It" .x,t:8Io", ullllnillruon rmJ """,, of "" 1M p.,II" bnllo. ~~Z:w:';;~a~~" "~ua;&;;2 ;;;:i:- M, - - - .?&.&r1~ HEOOIG WARD aD CD . aD 4~d.v:v-- .. ~I ~ I i. '" '" Ii I - - 1 I .. .. .. .. .. .. .. .. .. .. .. .. c.. ~~ tn i ~ Ii tlS 1 lit ~ .ll .... ar .... ..... j .. ~ ! I .. Ji j Ji fI~ I ! j 1. Po ~ ~ ~ wi .t ~ ~ ! i . .t 't: ~ - .:: ~ .. ~ - ~ 0 ..., v1 .:> " ;j ~ :'IO~ .. '" g .~ J ~ ,>-. .,.. r- \:'" 0 ::. C\ C'\ ~ ,) ~ "j fTl ,.P' 1>1 , , , , ,,' , -, Complaint in Equity 1. The plaintiff. Donald Vernet, is an adult individual residing at 260 Willow Mill Park Road. Silver Spring Township. Cumberland County. Pennsylvania. 17055. 2. The defendant, Andreas Bendzin, is an adult individual residing at 348 Blacklatch Lane, Camp Hill, Cumberland County. Pennsylvania, 17011. 3. By virtue of a fiduciary warranty deed dated August 18, 1992, Plaintiff is the owner of real estate located in Silver Spring Township. Cumberland County, Pennsylvania. known as the Warden Farm. which real estate is more particularly described in a copy of said fiduciary warranty deed which is attached hereto as Exhibit "A" and incorporated herein by reference. 4. On November 14. 1993 at approximately 11:00 am, the plaintiff and the defendant orally agreed that the defendant would sell the plaintiff a portion of the property upon which he currently resides (being Lot 2) including a right of way along Lot 3 and granted the defendant a right of first refusal to purchase an additional adjacent tract (being Lot 3) which was more fully described in a survey preparPd by Milton Davis. 5. The consideration for the aforementioned tract of land and the purchase of the option on the other tract was a combination of labor and materials, the plaintiffs ownership interest in one Kubota tractor and the sum of Three Thousand Five Hundred Dollars ($3,500,00). 6. The property in question is unique and there has been partial performance by the plaintiff in consideration for the purchase of the property in accordance with the agreement of the parties. 7. The defendant has told the plaintiff he has since changed his mind and refuses to transfer the property. right-of-way and option to the plaintiff. 8. The plaintiff requests the defendant be specifically ordered to perform and transfer the aforesaid property to the defendant. Wherefore. it is prayed that the defendant be specifically ordered to transfer the property in question to the plaintiff in this matter. Respectfully submitted, December 16. 1994 '::1 . ,. . ~. -':...... . , . FIDUCIARY WARRANTY DEED '1)/17 /J THIS INDEN'rCRE is made the /.1 day of A0/"sf , 1992, between ANDREAS BENDZIN, as Executor of the ESTATE Oli' HEDWIG lfARDEN, DECEASED (herein called the "Grantor"), and ANDREAS BBNDZIN, a sinqleman and an adult individual, now of camp Hill, Pennsylvania (herein called the "Grantee"). WHEREAS, during their lifeti~s, John B. Warden and Hedwig . Warden , his wife, became seized, in fee, as tenants by the entirety, of certain tracts of land situate in silver Springs TownShip, Cumberland county, Pennsylvania, now generally known as 260 willow Mill Road, Mechanicsburg, PA 17055, more particularly described hsreinafter (the "Premises"); and WHEREAS, John B. Warden died on April 28, 1976, leaving his wife, Hedwig Warden, as the sole surviving owner of the Premise~; and WHEREAS, Hedwig Warden (the "Decedent"), died testate, a resident of the Federal Republic of Germany, on February 24, 1991, possessed of the Premises; and WHEREAS, a Last will and Testament of the Decedent, dated December 13, 1989, regarding the estate of the Decedent in America (the "American Will"), was probated with the Register of wills of Cumberland County, Pennsylvania, who issued Letters Testamentary on March 4, 1991, to Andreas Bendzin, as Executor of the Estate of Hedwig Warden, deceased (the "American Estate"), without the requirement of a bond, under Case No. 21-91-166; and WHEREAS, the American Will provided a bequest of the entire residuary interest in the American Estate to the Decedent's grandson, Andreas Bendzin (the "Beneficiary"), as follows: "ITEM IV: I heI'eby give, devise and bequeath all of my American Estate, real, personal and mixed, to my grandson, Andreas Bendzin, of Schiessgraben strasse 28E, Augsburg, Germany, absolutely, if he survives my death by thirty (30) days. If he does not so survive me; I give, devise and bequeath the property enumerated herein to his issue who survive my death by thirty (30) days, per stirpes."; and WHEREAS, the Beneficiary survived the Decedent by thirty days, and therefore became vested of the residue of the American Estate; and WHEREAS, the American Estate presently possesses legal title to the Premises; and acc~ V 35 r,\r.E 633 " WHEREAS, the Beneficiary the American Estate as an satisfaction of his residuary desires to accept the Premis~s from in-kind distribution in partial interest under the American Will. NOW, THEREFORE, THIS INDENTURE WITNESSETH, that by virtue of the power and authority in him granted ab aforesaid, and in consideration ~f the sum of ONE DOLLAR ($1.00) paid to him by the Grantee at: or before the sealing and delivery hereof, receipt whereof is hereby acknowledged, the Grantor has granted, bargained, soLc;!, and conveyed, and does hereby grant, bargain, saIl, and convey to the Grantee, his heirs and assigns, the Premises, described below: ALL TROSE CERTAIN tracts of land situate in Silver Springs Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows: Tract No. 1: BEGINNING at a stone, corner of Tract No. 3 hereinafter described; thence by said Tract No.3, S 42 'llo E, l07. 1 perches to a post; thence by Tract No. 2 hereinafter described, S 70 ~o W, 96.7 perches to a post by lands formerly of Anna I. Ashburn, and now or formerly of Alice Schaffner; thence by said Alice Schaffner's lands, N 38 'llo W, 92 perches to a stone; thence by the same N 50 ~o E, 36.8 perches to a locust stump; thence N 71 ~o E, 49.5 perches to the place of BEGINNING. CONTAINING 55 acres and 106 perches. Tract No.2: BEGINNING at a post by lands formerly of Joseph Clepper, and now or formerly of J. W. Potteiger; thence by said lands, N 300 W, 62.6 perches to a post; thence by lands formerly of Anna I. Ashburn, and now or formerly of Alice Schaffner, N 320 E, 3.6 perches to a stone; thence by the same, N 36 'l40 W, 30.2 perches to a post; thence by Tract No. 1 hereinbefore described, N 72 ~o E, 96 perches to a point; thence by Tract No. 3 hereinafter described, S 40 ~o E, 9 perches to a post; thence by the same N 73 ~o E, 7 perches to a stone; thence by lands formerly of James S. Huston's Estate, and now or formerly of R. E. Dewalt and George M. Messinger, S ~o E, l02.3 perches to a post; thence N 79 ~o W, 8.2 perches to a post; thence S 77 ~o W, 35.5 perches t.o a stone; thence S 67 ~o W, 10.3 perches to the place of BEGINNING. CONTAINING 45 acres and 48 perches. 2 6uu~ V 35 PAuE 700 ~ '::J ~ ::n = t.,""J N -J: ::2 -" 1-' r" C") .r .. Tract No. 31 BEGINNING at a point on the bank of the Conodoquinet Creek; thence by lands formerly of James S. Huston's Estate, and now or formerly of R. E. Dewalt and George M. Messinger, S 1 ~o E, 54.5 perches to a point; thence by Tract No. 2 hereinbefore described S 72 ~o W, 7 perches to a post; thence by the same and Tract No. 1 hereinbefore described N 41 ~o W, 110 perches to a stone; thence by lands formerly of Anna I. Ashburn, and now or formerly of Alice Schaffner, N 13 ~o E, 15.8 perches to a swamp oak; thence along the Conodoquinet Creek by the courses thereof, 80.5 perches to the line of lands formerly of James S. Huston's Estate, and now or formerly of Dewalt and Messinger, the place of BEGINNING. CONTAINING 18 acres. Tract No.4: BEGINNING at the stone, which said stone is at a point where the nor"heast corner of land now or formerly of John B. Warden adjoins lands now or formerly of M. H. Taylor, et al, w~ich said land has been known as the Keiter Farm and which was conveyed by the Carlisle Deposit Trust Company to J. B. Warden and M. H. Taylor as tenants in common on February 21, 1939, and the Deed therefor is recorded in the Recorder's Office of Cumberland County in Deed Book "Y", Vol. 11, Page l82, and the undivided interest of J. B. Warden thereto was conveyed by the said J. B. Warden et ux to M. H. Taylor by Deed bearing date of May 19, 1945; thence in a northwestwardly direction, 72' to a steel stake; thence in a northeastwardly direction 210' to another steel stake; thence in a southeastwardly direction 100' to a Chestnut post; and thence along the aforementioned land now or formerly of M. H. Taylor southwestwardly 220' to a stone, the place of BEGIN~ING. UPON said four tracts of land having thereon erected certain dwelling structures and other outbuildings. SUBJECT, HOWEV~R, to all liens, reservations, restrictions, encumbrances, and easements, either of record or visible upon the Premises. BEING the same premises which J. B. Warden, also known as John B. Warden, and Hedwig Warden, his wife, by their deed dated November 20, 1975, recorded in the Off ice of the Reccrder of Deeds of Cumberland County, Pennsylvania, in Deed Eook "26", Vol. I, Page 774, 3 ilOu~ J 35 Ph~E 701 ~.., ".. . . granted to John B. Warden and Hedwig Warden, his wife, as tenants by the entirety. AND ths said John B. Warden died on April 28, 1976, leaving his wife, Hedwig Warden, as the sole surviving owner of the Premises. AND the said Hedwig Warden died on February 24, 1991, a resident of the Federal Republic of Germany, whereby title to the Premises ve5tpd in Andreas Bendzin, as Executor of her American Estate, the Grantor herein. THIS CONVEYANCE IS EXEMPT from application of Pennsylvania Realty Transfer Tax as a distribution from an estate to a beneficiary by will. TOGETHER with all and singular the rights, liberties, privileges, hereditaments, and appurtenances whatsoever hereunto belonging, or in any way appertaining, and the revisions and remainders, rents, interest, and prOfits thereof; and all of the estate, right, title, interest, property, claim, and demand whatsoever of the said Decedent at and immediately before the time of her death, at law or in equity, or otherwise howsoever, of, in, to, or out of the same. TO HAVE AND TO HOLD the said hereditaments and premises hereby granted or mentioned, and 00 intended to be, with the appurtenances, unto the said Grantee and his assigns forever, subject as aforesaid. AND THE GRANTOR, in his capacity as aforesaid, covenants that he has not heretofore done or committed any act, matter, or thing whatsoever, whereby the Premises hereby granted and conveyed, or any part thereof, is, are, or shall be impeached, charged, or encumbered in title, charge, estate, or otherwise, howsoever. IN WITNESS WHEREOF, the Grantor, in his capacity as aforesaid, has hereunto set his hand and seal the day and year first above written. WITNESS: ~/.J)," / (I ~ 4- / ~_. ,6'7 ~ ~~'/L('~o....r;, , )_ ,~..s--6 . ANDREAS BENDZIN ' as Executor of the Estate of Hedwig Warden, deceased. <I ~OIlX 1/ 35 P;'~E 702 r i) What specific items of labor and materials were intended to be pa~t of the consideration for the transfer of the real estate; ii) When and to whom those labor and materials were supplied by the Plaintiff; and iii) How such labor and materials are to be valued. 4. with respect to paragraph 5 of the Complaint, Plaintiff fails to identify the exact Kubota tractor in question, fails to specify the nature of and percentage of Plaintiff's alleged ownership in the tractor, and fails to indicate the value of Plaintiff's purported interest in said tractor. 5. At paragraph 6 of the Complaint, Plaintiff alleges partial performance of an oral Agreement of Sale. 6. Plaintiff's Complaint fails to specify what actions constitute the partial performan:::e referred to in paragraph 6, fails to specify when those actions allegedly constituting part performance took place, and fails to allege why the actions allegedly constituting part ~~rformance, if any, were performed by the Plaintiff. - 2 - '\ I.AW O....ICl!.~ GOLDDEHO, KATZMAN & SIUPMAN, P.G. ItON...LOM.II...".....,. "'....." .. 001.011.0 " UI'MI""'''''' "...ul.j.I.~.lfO NllL ...INI)IIIIMO' .J. J"" COO,"III11 '1010...... I. ..1101,.1. O"'VIO C. "'1.1.111I .1"''''11 ... 'HIIH"'''' MICH...II..... 'IloilO .JOHN.... """1.1. "'''1111. I.. ,'II"'NO'IIIU''''' GU''''.IIIOOII' .JI'".'Q''' .J. 'HI""''''N ...."'01.0 I. 11I00"'''' JIIIII"J,IIU'IO ""'11I1'" 'IUCMflNIIIIIUII ...IC","'II.J. CROCI"'I 011I1..., OA"'NO'" Bun HAllKIn' HT1U>;Y.T STnAWUl!llltY HQtlARJ~ 1-, 0, UOX LUOO IlAUHL~nt'H(J. PHNNSYL"'ANIA 17106'JJ,UIU TE1.J!:I"IIONI! 1'71'71 "'1~.'llOl PAX 1'71'71 "'114-800" January 27, 1995 JIAlfI) DI!ILIVI!IRI!lD The Honorable Edgar B. Bayley Cumberland County Courthouse One Courthouse square Carlisle, PA 17013-3387 Re: Vernet v. Bendzin No. 94-7107 Equity Term AlllfHUIt 1,. 001.01'''0 0' COUN'.1. 'l'ORI( o,.,.rcc: na E. Jo4ARKU I':'''I:IT YORK, PA, 17..01 1717. ...).7glao (CORRESPOND TO HAI1lIIIlllsaURO O"I"ICII Dear Judge Bayley: I am in receipt of your Order of January 24, 1995, listing the above-referenced case for equity trial 011 Thursday, February 16, 1995. Please note that this action was filed on December 20, 1994, and Preliminary Objections were filed by this office to the Complaint on January 17th. Those objections have yet to be listed for argument or otherwise acted upon by the Court. In addition, I would like an opportunity to take some discovery in this case before a trial is held. Accord~ngly, I would ask that the Court hold off on the scheduled trial. I would be more than happy to participate in a pre-trial conference at that time if the Court feels such would be appropriate. I previously notified Bill Douglas of my objection to the listing, and I thought this matter would go to a call of the trial list before actually being scheduled for trial. I would be more than willing to participate in a conference, either in chambers or on the telephone, about this matter. Very truly yours, C~...(',},\:.\ \" -~j' j '-", ' J. Jay Cooper JJC/ksd cc: William P. Douglas, Esquire (via fax) o~.Jp c\),.t..../~,.-:@:} PRAECIPE FOR LlSTNG CASE FOR TRIAL (~Iu~t be typewritten and \ubmitted ill duplicate) (EQUITY) TO THE PROTHO~OT.\RY,OF Ct:~IBERLA.'I;D COt..::'iTY L_ .- :.c Pluse liit the iollowing ,al.. (Ch"K on.) ( x) ier JL:RY lnJI Jt the next term of 'I'" 'OU'l. t-.; W ) ior mal without J JUrY, . ~- --------------------------------------------------------------..------ ( - <..0 U"1 CAPTION OF CASE (entire caption mUll be Iwed in iull) (check one) DONALD VERNET, ( ) Ailumpslt ( ) Trespas. ( Trespass (~totor Vehide) ( x ) EQU ttv (other) (Plaintiff) VI, (Deiendant) Pretrials will be held on (Briefs are due 5 days before pretrials) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule' 214-1.) ANDREAS BENDZIN, , V,. ~o. 94-7107 Civil Term 19_ Indicate the allomey who will try ,ale ior the part)' who liles this praecipe: William P. Douglas, Esq., for Plaintiff Indi.:ate trial ,ounlel for other parties if known: J. Jay Cooper, ESQuire. Geldber~. Katzman & Shipman. P.O. Box 1268. Harrisburg, Pa. 17108-0268, for Defendant Sigr.ed: DOUGLAS, ;.~L-- DOUG\ & DO J . ~\'i'r This ,:ue il ready for triaJ. Print Same: William P. Douglas , DJte; January 13, 1995 Anorn~y ;"",r: Plaintiff \ r-l. \' l.'~ .;~ ,., oJ ",I and Plaintiff ever agreed that Plaintiff's ownership interest in a Massey Ferguson Tractor would be transferred from the Plaintiff to the Defendant as consideration for that transfer. Defendant denies that on November 14, 1993, or at any other time, he agreed to sell Plaintiff a portion of the property described in paragraph 3 above, nor did Defendant ever agree to grant Plaintiff a right-of-way andfor a right of first refusal to any portion of that property. As is more particularly set forth in new matter, any allegations of an oral agreement with respect to sale of said real estate is barred by the statute of Frauds. 5. Denied. As alleged in paragril['h 4 above, Defendant never agreed to sell land or grant any right-of-way or option to Plaintiff for any stated consideration. 6. Denied. Defendant :lever made any promise 1:0 Plaintiff to transfer any land and, therefore, Plaintiff could not have relied upon any such promise in making any improvements. Moreover, any improvements made by Plaintiff to the real property he was occupying were made pursuant to the lease arrangements between Plaintiff and Defendant, and previously between Plaintiff and Defendant.s grandmother who owned the property prior to Plaintiff becoming the owner. That lease arrangement involved Plaintiff's occupying a portion of the Warden Farm in exchange for a minimal monthly rental of $100 per month, along with Plaintiff's agreeing - 2 - to perform various maintenance and repairs to the farm and various buildings on the farm. Accordingly, any improvements that were made were made pursuant to that arrangement, and were not made pursuant to any alleged Agreement of Sale. 7. Denied. The property is not unique, nor has there been any partial performance by Plaintiff of any alleged Agreement of Sale between the parties. 8. Admitted in part, and denied in part. It is admitted that Defendant is not willing to transfer any portion of the property described in paragraph 3 above to the Plaintiff. It is denied that Defendant ever changed his mind about transferring the property, since he never agreed to sell any portion of the property to Defendant in the first place. 9. Admitted. It is admitted that Plaintiff is evidently requesting specific performance of an alleged agreement regarding real estate. It is denied that Plaintiff is entitled to any Order requiring a transfer of any property owned by the Defendant for the reasons set forth above and in New Matter. WHBRBrORB, Defendant respectfully requests that Plaintiff's Complaint be dismissed with costs of suit. - 3 - 3. The instant case is an action in equity filed by PlaintHf against Defendant seeking specific performance of an alleged oral contract to sell real estate located in silver Spring Township, CUmberland County, Pennsylvania. 4. On February 13, 1995, Defendant's counsel served written Interrogatories and a Request for Production of Documents on Plaintiff's counsel seeking to obtain details supporting Plaintiff's Complaint. 5. Despite the service of the discovery requests on February 13, 1995, no Answers have been filed to the Interrogatories and Request for Production of Documents, and no request for an extension of time has been made by Plaintiff. 6. On Friday, April 21, 1995, a representative from the office of Plaintiff's counsel inquired as to whether Defendant would be available for deposition on Tuesday, May 2, 1995. 7. In response, counsel for the Defendant advised Plaintiff's counsel that as soon as Answers to the outstanding discovery requests were received, arrangements could be made for Mr. Bendzin's deposition. - 2 - , 8. In response, by letter dated May l, 1995, received on May 2, 1995, Plaintiff's counsel sent a Notice of Deposition to counsel for the Defendant scheduling the deposition of the Defendant for Tuesday, May 9, 1995, at 4:00 p.m. 9. By reason of the aforesaid, Defendant seeks a Protective Order from the Court relieving him of any obligation to attend a deposition until such time as the Plaintiff provides an Answer to Interrogatories and a Response to Request for Production of Documents, which responses are now approaChing 2 months overdue. 10. Defendant seeks and avers he is entitled to a Protective Order from requiring his attendance at the deposition in that Plaintiff is engaging in discovery in bad faith by refusing to provide Defendant with requested details as to the nature of the Plaintiff's Complaint, which request was served nearly 3 months ago. Yet the Defendant insists that the Plaintiff be deposed without the benefit of seeing those answers on less than 10 days notice. 11. Defendant will promptly cooperate in the scheduling of a deposition as soon as the Plaintiff provides responses to the discovery requests served on February 13, 1995. - 3 - , ExhIbit A 3. The instant case is an action in equity filed by Plaintiff against Defendant seeking specific performance of an alleged oral contract to sell real estate located in silver spring Township, Cumberland County, Pennsylvania. 4. On February 13, 1995, Defendant's counsel served written Interrogatories and a Request for Production of Documents on Plaintiff's counsel seeking to obtain details supporting Plaintiff's Complaint. 5. Despite the service of the discovery requests on February 13, 1995, no Answers have been filed to the Interrogatories and Request for Production of Documents, and no request for an extension of time has been made by Plaintiff. 6. On Friday, April 21, 1995, a representative from the office of Plaintiff's counsel inquired as to whether Defendant would be available for deposition on Tuesday, May 2, 1995. 7. In response, counsel for the Defendant advised Plaintiff's counsel that as soon as Answers to the outstanding discovery requests were received, arrangements could be made for Mr. Bendzin's deposition. - 2 - 8. In response, by letter dated May 1, 1995, received on May 2, 1995, Plaintiff's counsel sent a Notice of Deposition to counsel for the Defendant scheduling the deposition of the Defendant for Tuesday, May 9, 1995, at 4:00 p.m. 9. By reason of the aforesaid, Defendant seeks a Protective Order from the Court relieving him of any obligation to attend a deposition until such time as the Plaintiff provides an Answer to Interrogatories and a Response to Request for Production of Documents, which responses are now approaching 2 months overdue. 10. Defendant seeks and avers he is entitled to a Protective Order from requiring his attendance at the deposition in that Plaintiff is engaging in discovery in bad faith by refusing to provide Defendant with requested details as to the nature of the Plaintiff's Complaint, which request was served nearly 3 months ago. Yet the Defendant insists that the Plaintiff be deposed without the benefit of seeing those answers on less than 10 days notice. 11. Defendant will promptly cooperate in the scheduling of a deposition as soon as the Plaintiff provides responses to the discovery requests served on February 13, 1995. - 3 - Exhibit A Q01JlIIDG, D%:DlAJI I al[IPIIAIf, P.C. J. Jay Cooper, lequire - 1.0. #31720 Attorneye tor Defendant 320 Market Street Strawberry Square P.O. Box 1268 Barriaburq, PA 17108-1268 (717) 234-4161 Plaintitf IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONALD VERNET, v. NO. 94-7107 CIVIL TERM ANDREAS BENDZIN, Defendant IN EQUITY REOUEST FOR PRODUCTION OF DOCUMENTS TO: DONALD vmuf1:T and William P. Douglas, Esquire DOCGLAS, DOUGLAS , DOUGLAS 27 West High street Carlisle, PA 17013-0261 Pursuant to Pennsylvania Rule of civil Procedure Nos. 4001 and 4009, the Defendants, by their attorneys, Goldberg, Katzman' Shipman, P.C., requests you to produce copies of the fallowing documents for purposes of preparing a complaint and for discovery and use at trial, at his expense, within thirty (30) days of service of this Request: 8. In response, by letter dated May 1, 1995, received on Hay 2, 1995, Plaintiff's counsel sent a Notice of Deposition to counsel for the Defendant scheduling the deposition of the Defendant for Tuesday, Hay 9, 1995, at 4:00 p.m. 9. By reason of the aforesaid, Defendant seeks a Protective Order from the Court relieving him of any obligation to attend a deposition until such time as the Plaintiff provides an Answer to Interrogatories and a Response to Request for Production of Documents, which responses are now approaching 2 months overdue. 10. Defendant seeks and avers he is entitled to a Protective Order from requiring his attendance at the deposition in that Plaintltf is engaging in discovery in bad faith by refusing to provide Defendant with requested details as to the nature of the Plaintiff's Complaint, which request was served nearly 3 months ago. Yet the Defendant insists that the Plaintiff be deposed without the benefit of seeing those answers on less than 10 days notice. 11. Defendant will promptly cooperate in the scheduling of a deposition as soon as the Plaintiff provides responses to the discovery requests served on February 13, 1995. - 3 - . ExhibIt A DONALD VERNET V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 94-7107 CIVIL TERM IN EQUITY ANDREAS BENDZIN RESPONSE TO RULE TO SHOW CAUSE 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied as stated. The defendant refused to make his client available for deposition until he received responses to Interrogatories, which is in direct contradiction to the Rules of Civil Procedure, which oniy placed a limit of 45 days from the date of service for a deposition to be taken. 8. Admitted. 9. Admitted. 10. Denied. It is not bad faith to take someone's deposition in accordance with the Rules of Civil Procedure. 11. Admitted. 12. The responses to paragraphs 1 through 11 are incorporated herein. 13. Admitted. 14. Admitted. 18, On MardI 4, 1994, Plaintiff was advised by letter from Defendant's legal counsel that he was to vacate the property and that the Lease was being terminated. 19. Defendant is entitled to entry of summary judgment against the Plaintiff as a matter of law in that: a) the pleadings and discovery in this case establish that no written contract for the sale of real estate was ever entered into between Plaintiff and Defendant, and, therefore, any oral contract is barred by the Statute of Frauds; b) lhe pleadings and discovery taken in this case establish that no oral contract of sale was entered into between the parties; c) the pleadings and discovery taken in this case establish that the Defendant has not admitted that any oral contmct existed between the parties, such as to take this case out of the Statute of Frauds; d) the pleadings and discovery taken in this case establish that Plaintiff did not take possession of the real estate in reliance on any alleged oral agreement to sell real estate, and that Plaintiff did not perform any substantial permanent improvements to the real estate in reliance upon any alleged oral contract that could not be compensated for with monetary damages; e) no facts or circumstances exist that would take the alleged oral contract out of the operation of the Statute of Frauds; .5- DONALD VERNET, Respondent/Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 94-7107 CIVIL TERM ANDREAS BENDZIN, Movant/Defendant IN EQUITY PLAINTIFF'S ANSWER AND NEW MATTER TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW comes the Plaintiff, Donald Vernet, by his attorney, Michael L. Bangs, Esquire, and files the following Answer and New Matter to Defendant's Motion for Summary Judgment: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part. It is admitted that a written lease agreemsnt was entered into. The rest of ths averment is denied as stated. 1 11. Admitted. 12. Admitted. 13. Denied. It is specifically denied that the record does not indicate that the parties reached an agreement for the sale of a portion of the Warden farm to Plaintiff. The Plaintiff specifically indic&ted that an agreement had been reached during his deposition. In addition, the affidavits which are attached hereto indicate that an agreement was reached. 14. Denied. The record establishes that the Defendant had not admitted to any oral contract, but that he was heard by others to agree to sell the property to the Plaintiff. 15. Denied as stated. It is admitted that the Plaintiff did not initially take possession of the real estate in reliance upon an alleged oral agreement of sale, however, Plaintiff testified that he continued in posssssion of the real estste and made numerous repairs to the grounds which were outside the terms of the lease agreement in reliance upon the sale taking place. 16. Denied as stated. The record reflscts that Plaintiff made substantial improvements to the grounds. 17. Denied as stated. The Plaintiff and Defendant disagree as to the terms of the agreement. In addition, the affidavits which are attached hereto and the 2 testimony of Plaintiff indicate that substantial steps were taken for the subdivision plan. 18. Admitted. 19. Dsnied generally and more particularly, each subparegraph of the averment is denied specifically. 20. Denied. Defendant is not entitlsd to a summary judgment in this case. NEW MATTER 21. Plaintiff and Defendant in their depositions disagree as to whether or not an oral agreement was reached for the sals of a portion of the Warden farm to Plaintiff. Said disagreement is sufficient to cause this case not to be dismissed on a summary judgment motion. 22. Attached to this Answer is an affidavit marked as Exhibit A from Cindy Kerns indicating that she heard the Defendant promise to transfer the portion of the farm to the Plaintiff for a specific price which supports Plaintiff's testimony at the deposition. 23. Attached to this Answer is an affidavit marked as Exhibit B from John Kerns indicating that he heard the Defendant promise to sell a portion of the farm to the Plaintiff for a specific price which again supports Plaintiff's testimony at the deposition. 3 ... 3. Prior to my becoming the owner of the Warden Fann, the fann was owned by my grandmother, Hedwig Warden. 4. In September of 1988, my grandmother and the Plaintiff, Donald Vernet, entered into an arrangement pursuant to which Mr. Vernet moved into an old trailer on the fann where he was allowed to live in exchange for his agreement to make the trailer livable and to maintain and upkeep the surrounding fann and farm buildings. A true and correct copy of that written arrangement is attached hereto as Exhibit "A" and is incorporated herein by reference. 5. In April of 1990, a written Lease. was entered into between the Plaintiff, Donald Vernet, and my grandmother which replaced the prior written agreement. A true and correct copy of the Lease is attached hereto as !3xhibit "B" and is incorporated herein by reference. 6. The Lease, Exhibit "B", was still in effect when I became owner of the farm in 1992 and remained in effect until my attorney gave written notice to the Plaintiff, Mr. Vernet, in March of 1994 to vacate the property. A true and correct copy of my attorney's letter from March 1994 is attached hereto as Exhibit "C" and is incorporated herein by reference. 7. During 1993, the Plaintiff and I had several conversations about a possible sale of a portion of the farm to him, but no final agreement was ever reached. - 2 - .. . 13. I am not aware that Mr. Vernet made any substantial improvements to the property in which he resided subsequent to November 1993. 14. In response to Interrogatories, at paragraph 12, a copy of which are attached hereto as E1hibit "0", the Plaintiff indicated that he had made improvements to the real estate during 1993, in reliance on our alleged contract, and he specified 10 different types of repairs. 15. To my knowledge, none of the alleged listed improvements set forth in Plaintifrs Answers to Interrogatories referred to in paragraph 16 above, were of a substantial nature. Furthermore, I have not been provided with any receipts evidencing that Plaintiff incurred any expenses with respect to said alleged repairs and improvements. (See Exhibit "E" hereto). Moreover, nearly all of the claimed repairs constitute items which, if they were performed, were already the responsibility of Mr. Vemet under his written Lease, Exhibit "B" hereto, which Lease placed responsibility for maintaining the Lrailer in which he was residing on Mr. Vernet. 16. During his deposition, Plaintiff admitted that most of the repairs that he claims were made subsequent to the alleged contracted dated November 14, 1993, were cheap, (Vernet p. 70) and were done merely to keep the trailer livable while he resided there. (Vemet p. 74). Moreover, Mr. Vemet indicated in his deposition that the claimed improvements were not made with a view towards permanent use, but that he intended to vacate and abandon the trailer once - 4 - Exhibit A . ARRANGEMENT WITH DONALD VERNET September 12, 1988 Mrs. Warden and Donald V~r~et have entered into an agreeme~t concerni~g occupancy of t:-Jat area of Mrs. Warden's farm as shown on the attached diagram. The facts leading up to this arrangement are that the previous occupant of these premises not only did nct take care of them and provide proper maintenanc~, but accarentlv either intentionally or unintentionally caused' the' premises to substantially deteriorate. Mr. Vernet, desiring to live in the area, and possessing various construction skills necessary to repair and restore the premises, suggested an arrangement which Mrs. Warden has generally agreed to. The arrangement essentially is that ~lr. Vernet can have occupancy of the premises as shown on the attachment, and that initially the rent will be payable not in dollars, but in labor and services to be performed by him in repairing, maintaining and restoring the premises. Pursuant to the understandi~g of the parties, Mrs. Warden will pay for materials, as and if required, so long as Mr. Vernet first provides her or her agents, with information concerning the activities to be performed, the nature of the materials and labor required, and the estimated cost thereof. Subject to her prior approval, Mrs. Warden ';o/ill also reimburse for all necessary outside labor (not including Mr. Vernet) required for all work except to the mobile home; any outside labor required for the mobile home will be the responsibility of Mr. Vernet. It is expected that this arrangement would extend for the better part of one year from the date hereof. It is also understood that after the necessary substantial renovations and repairs have been completed, the parties will enter into a rental arrangement whereby Mr. Vernet will pay rent in money rather than in services, under an arrangement which will be fair to both parties. He will continue to be responsible for all regular maintenance and repair of the occupied premises. It is understood and agreed by the parties that, so long as Mr. Vernet faithfully performs the services required in restoring, maintaining and preserving the premises, he shall be entitled to continue his occupancy of the premises indefinitely into the future, subject, however, to the right of Mrs. Warden to terminate his rights upon six month's notice. In the event that Mr. Vernet fails to carry out his duties and obligations in a satisfactory manner, his rights shall be subject to termination upon thirty days' notice. - -~ .. L /1 ;VI:: J .{ t.I""c...<' /,,'.:.~ /'./& ::r: C plli.",/J.. H 1 , r'-- I l I ,~ --:::::":~ ~ .._~ :' \ y ---.'. '--. ..... ...-_-.." c,_ .... I', ';-:-~ " J / ./ ~o ~, / ~/ J('-" ~ ...... . .... . -\ >:, ';O~ t'." r' ~ ~, .' .. 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AIIJ it .19 furthp.r ngreed II!J followsr 1) Tenant cannot lSublot. or rent any portion of prP.mises to 8nyone elBo. 21 Ml repairs and maintenance at the mblle hntn "lid the n.11t.lrl! pr~mLruJrJ 8ha1.1 be partorrned and p..lld t'or by tenant, who Is .UUllyiltL.ttJ to malnt.lll1 1.11" prwnlsc:J III .. cleiln aluJ lIf:liJl:. conditlun, remove all trash and giU'OOgO, CHt tho litwn and weads, etc. J) Tenant understands that the othor Jtcl1.mt. tlr. O1l1d Hr!!. fihlndol, h~vo .:I right ot' entrr for thernoclvcC' ..md thoir visitors through the subject premises. Th, to"JllloII' o"A" ,,,,Iu"',,',,, fa Whnru Whtll'lll, ~'" .boll' wrill,,,. .""..,,,, ah,,' u/..M /. Ih, h,I", ,un/o", ",,",,/,1,110" .tIll ...1,,,. 01 J' 111I IN THE raElENCE OF Ih, ,,,11,, ./o,,,,'J hIlI' h",...'. ", Ihll, Iu"J. ",.1 .,,}. 1M 44:tt~r ", ."J '/f" "le4,i~ llEDWIG HMO " $bu"'; 1/"" QD aD QIla QIla rr.1 01 I j j j 1 I :: :: t , . ~ ~ ~ ~ ~ ~ " " ~ .:.. 11 g} j 1 ~olI I M 1 ~J' B 1i .! I. 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"'_ 0 ''\i \'J.;-.. _:'1\,.':,. tiU\ .\",,;\., " ~~r,! _II" AGAIN ....J:c~ -./ .:, . ;..::: ",'. '.-:-:'.~;"... ..,........: ~ .-~:. . ..!: "" ~ '.:".:. ';.. "';.'. II f:. ,'."l ,J '..1.1.;17 ] .1 ;. ')6:-t ,1\ ......\ "1......-,.. \ \ !l THIS IS YOUR INVOICE. WE DO NOT ITEMIZE AGAIN SHEAFFER BROS.. INC. . _MOTOR PARTS AND MACHINE SHOP SERVICE -.-:11'*'1 MAIL REMITTANCES TO 11.. ~UH n. ......IN OFFICI AND STORI! aI1TY1.ui1112. ..... mu <405 H. un ST. Ut-fU' CARLISLE. P.... 11013.201Q 243.5425 1;'[I:';:~:::'r . DATE NUMBER ;,) j .:,.)1.1...., r:.I;',tJ!' '2 ;tlF ., ,~Ct..P I~()'" M,__ 1_' h'j" t.'1 .:,' '!'" ,_' . , . , ',I HI'I'I.D TO 1-)1 !C:' ::" ~, ,'.. ! ';. "II"'J'.I ",I t .': ":"';'1;-:- ::-- :-:"'II~ r-:-~::'. ''".,.1 ". ,SALESPERSON OEPT, REG, PIECES SHIP VIA . ;,.:.:.... i~..\::~..-. ...J:= i.~, ^" . - I,.:.! ?:ITeM NUMBER ft,'.... "." ;.: . ,_i ;"/:I~: I, ....,....,~.;/..J~.~" -:!-:o-".r."- ~","'-."-";';""'. DESCRIPTION .1- '..\ ; ,-~ i':, :,'~.. 'J - i:... I ~. QUANTITY UNIT ~iSTJ'mCE ;"'~AMOUNT.~...: 1"':')\ :";;:';.;:'U ., ':-r' -::-r~:. .--.-.-:..:.:... .......-..--- ..' .. '." _._--'-~-~.. - " ,- L[::S TAX: => T' TAl.: 1~!U,"1 I C 22.50 d;::;~~~ ~~_...~ "l ...:.....:!~~~ ~c,~.~"1.1lIf.":! ~ES:t-.f'P. ICES. ON..' RAc;y,~JCIE':IN I oi~ ;;>-:-. .:~:~::.'~7:. . ;?::~"'~~:~, ....... ~ :,;,,~:,?:".:;r . ..'~:~~\,'~r~ ..:~::.:~~{. -.'.. . ...:.... . .." ~;",..."..~~,:, '.~~~lih._-;..V'~~~ All claims and ,alumed goods MUST be accompanied by this Invoice, 1~~. per month Inltml chllged on past due act<l\Ints. .., \1~'1 L l'ok !oIi...... l oj ,,..... "........-. I""",' ,.........,~; '.... ....,.~ , " ';," " '0" ExhIbll F t :l .3 01 5 Ii 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 i 24 25 Exam./Coop~r - V~rnet 2" b~in~ pr.epar.ed and si~ned re~arding the farm? ~, Ves, it did. Q, I'm ~oin~ to show you what we'll refer. to as Vern~t Deposition Exhibit 1, which is a seven-page document, and if you could just take a second to look at that. A. There w~s one prior to this, wasn't there? Q, W~ll, ! don't know. You can tell me that. I'll just show you the one that! have. I'll ask you about this, and then you can clarify what needs to be clarified. Just keep that in front of you for a seconrl. MR. BANGS: HaIti on to that. Refer to that when he asks you questions. A. Okay. BY MR. COOPER: Q. There are two signatures in this document that I see. On Pa~e 2, there's a si~nature above Donald Vernet. Is that your signature? A. Yes, it is. Q. And do you recall signing a document entitled, Arrangement With Donald Vernet? A. Yes. Q. Dated September 12th, 1988? A. Yes. FILllIS';' .\kLlle.IS REPORTING SERVler "'llTiiIJU~ 717..!J6.I'ti1J \iJrk ;'1;'.S.J5~JS P:\ '-'s!OO..!JJ.!H2i 1 ::l J 4 7 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Coop~r. - V~rnet 27 A. I would give h~r copies of every r~ceipt writt~n and signed. Anytim.. she would p"y for help, ';o/hich was only, I think, one time, it would al';o/ays be signed. gvetything was always on the up and up. Q. Okay. And haw would Ahe reimburse you? Was it always done by check, or was it sometimes cash? A. Always ch~ck, always a check. Q, Now, at som~ point in tim~ was a formal lease ar.rangement entered into that sort of replaced this written agreement? A. Yes. Q. Okay. I'm going to show you what's been marked as Vernet Deposition Exhibit 2 , and could you identify that for us? MR. COOPER: Here's an tlxtra copy. MR. BANGS: Thanks. BY MR. COOPER: Q. Have YOII seen that before? A. Yes. Q. Okay. On the second page is two signatures. Is the One above Donald Vernet your signature? A. Yes. Q. And would it be fair to say that this is the lease that you signed with Mrs. Warden that basically was referred to in this September, 'aa arrangement FILIUS" ,II<WC\S REPORTING SERI'/CE H.lm_lIll", ;'1;-.1)6.'1#12.1 link n;.,i~3.tWl~ 11' '.,ifIjJ.1JkIJ17 ; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 n 22 23 24 25 Exam./Coop~r - Vernet 61 Q, Fiancee. ~nd she's listed as a witness because of what? A. She was there on several occasions with meetings with Andreas, Mr. Katzman, Leila. She practically lived there. Q. Was she at this November 14th meeting? A. No, she wasn't. Q, ~nd would you agree with me that you took possession of the property in 1988 well before there we:a any discussions about a possible sale of any part of the farm to you? Is that a fair statement? A. I listed right from the start on this takeoff that I was interested in a long-term lease or a purchase of some property. And I always made that aware to Mrs. Warden and always to Andreas. That's all I can say. Q. Okay. But at the time you took possession of the property, you were taking it as a tenant and not with any understanding that existed at that time? A. As ~.tenant, yes. Q. Okay. And it wasn't until, according to your testimony, on November 14th of 1994 that you felt that there was a final agreement about a sale of a part of the farm to you from Mr. Bendzin. FILIUS" ,\kLllC, IS REPORTINC SERVICE 1I.1",~IIll'1 :"J;"-ZJ6-tJtilJ lurk iti.:l-45.6iJIl P.l ,.jOO.1JJ-!U2i Is that 1 J 3 16 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Cooper - Vernet 65 you w~re going to b~ able to buy. A. Right. (l. Okay. A. Well, the trailer was definitely going to be out of there as soon as I could possibly get it out of there. And I had to fix the commode. I had to replace th~ commode and the water lines, because they just -- it was freezing. That one winter there was a lot of snow, it was real bad. But the improvements were in the water system. I had to bore through concrete footings, concrete slabs. I had to trench out the water line from the new well, which I had gotten drilled. And in order to save Andreas thousands of dollars, which I did, I went ahead and dug the trench out and backfilled everything after the water lines had been put in. Well, things in the trailer that I had done was carpeting and things like that that I was going to go ahead and remove after the trailer was torn.. apart. And then I put the addition up. Q. Was that done between November of '93 and March of '94? A. Parts of it, parts of it. I needed to get more room, and I needed a way to get heat in there. FILIUS" .\kLUC.~S REPORTING SERI'ICE H'lmsbll~ 717-1J6-/J61J York 7r;./U5..64Vl P..' l-dOO..!JJ.IJJ1i' 1 2 18 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Cooper - Ve~net 74 A. Mr. Cooper, ther~ were alw~ys a lot ot knickknack, nickel, dime things that I put into the tarm, lumber, things like that that I could bring home otf my job and all that I would go ahead and put in. And for years I kept receipts and labor and all that, and I just explained to Andreas that, look, you know, this will all come out in the wash, and hopefully you'll do right by me. Tha t ' s all I asked. So like I said, these things don't mean anything to me. Q. Is it fair to say that most of these ten items essentially relate to just keeping the trailer up? A. Keeping it livable, yeah. Q. So you could live there? A. Exactly. Q. And that you worked permanent improvements to a place that you intended to continue to live in? A. I did the permanent things in the addition out there that I never really finished on account of not having things nailed down. Q. All fight. Your attorney, Mr. Bangs, by a letter dated November 3, 1995, sent me a whole packet of different receipts and things like that. Did you provid~ him with a number of receipts that were -- you understood were to be provided to me? fit/US & M,LUC.~S REPORTING SERVICE 1f,,"ii/JUt:( ,1:.1J6.1l6ZJ .,.",,4 iJ;,./i.,IJ.6-4tS P.\ t...;OIJ.!JJ.!lJ27 1 2 3 4 5 6 7 8 9 10 11 12 13 19 14 15 16 17 18 19 20 21 22 23 24 25 >0. Exam./Cooper - Vernet 7a Oh, yeah, yeah. There are receipts for what I had put into the structure, the roof, shingles, lumber, block, mortar, concrete. There's even receipts in there, I believe, from repairs on the tractor. Q. >ore you able to identify, when you go through A. these receipts, what work these items related to? They're pretty old. I mean, I see probably, you know, a minimum of 55 to 60 different masonry jobs a year. But what I have in there is what I used on the farm. I can walk you around it and point it out to you. Q. Was it your understanding that there was going to A. have to be a subdivision plan filed at the township and approved by the township before you'd ever be in a position to buy part of the Warden farm? No. I mean, I understood that it had to be approved, but I was under the impression that Mr. Katzman, upon Andreas and my meeting of November 14th"and already meeting with Mr. Katzman, that we already had a deal and it was nailed down and all we had to do was go through the paces, because I had never owned a piece of ground before in my life. FllIlIS & ,\I<we\s REPORTINC SERVICE U.lrtiilHlr:{ 7r;-.~J6.lJb,U \tlrl 7r,d~).tWJS p., '.iOlJ.BJ49J2;" o 6 () v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Q. A. Q. A. Q. A. Q. A. Q. A. 20 Q. 21 A. 22 23 24 25 Exam./Rnngs - Rpno7.in 28 have to bring in my wife, Leila, too, because she thought, too, we should give it to him not for the full price, but for less because of his work there. What's your wife's name? l,eila. Leila. L-e-l-Il? L-e-i-l-a. Was she present during these discussions? At times, yeah. But at this particular point I guess we kind of talked about it between her and me. Between you and your wife-- Yeah. --or between Don and you? Me and my wife, me and my wife. And I guess, in a way, Don expected it, too, that if I would sell it to him, I would give it to him for less instead of the full price. And why would YOll do that? Well, because at that time, 'itS far as we knew, we believed that he had done a lot of work on the farm, and I don't want to deny anything about tha t. But later on, from what we heard from other people, it seemed like it wasn't like that at all I lUllS (r .\fel (ll-,\" IH I'tJIUl.\,(; ...UH'ICJ 1f,1H1~""'.-': ;,:-.~ lId'''! I )in/. :-1;'.,q"j.I>"',~ 1'.\ '.M"'.! II-'ll.!:" o r-- '. ) .- , v 1 2 3 4 5 6 7 8 9 10 EKam./Banqs - Bendzin 39 BY MR. BANGS: Q. 15 A. Q. A. Q. 16 Q. A. Q. A. Q. A. The question Mr. Cooper asked was, was the sketching out here of the Bendzin house as it shows there and the barn or stable, was that on the plan when you got it? I think so, yes. And just to clarify here, this area, Lot Number 2 -- MR. COOPER: There's a blowup of it here. MR. BANGS: okay. Thanks. 11 BY MR. BANGS: 12 13 14 17 18 19 20 21 22 23 24 25 The Lot Number 2, are you saying that that laying out of that area there was all information given by Mr. Vernet to Mr. Davis? It was -- Yes. You didn't have any input? I was too fast. Yes. So you had no input into laying this out the way it is on this plan? tlo. All right. When you got this plan and you had the meeting with Mr. Katzman and Mr. Davis and Mr. Vernet, what was discussed about the plan? I guess primarily what was discussed was what's the neKt stf!p to be pursued as far as getting to '"1l1'i i_ ,\1,' IIl",\'O UII'C1UII\'t;..;1 In lei 110''''_''"1, ;"/;"-! III.III,! I \,I,1t. :"1;' _~1i-1,1I' I" ,- "mI.! II.'II!;" ;l .:) ~ 1 2 3 4 5 6 7 8 9 10 11 12 A. Q. A. Q. A. 13 Q. 14 A. 15 16 17 Q. 18 A. 19 20 21 22 23 24 25 EKam./Bangs - Bendzin 69 that point? Yeah. And that's when I decided to take it -- Well, actually what I did, I took it then to Mr. Katzman, told Mr. Katzman what was going on, and he suggested to give the whole thing to Mr. Black and let Mr. Black let him do it. Okay. And that's it then? Those are the reasons? Those were the basic reasons. I mean, there's still a further reason, if you want to know about it, in February. February of '94? Yeah. Yes. Actually, I got several -- It was my wife who talked to the person on the phone. At that time my brother from Germany was present, too. Your what? My brother from Germany, so he knew about what was going on. Well, anyway, my brother was here for three weeks in February. And it was the last week of his stay, pretty much toward the end. And we were out running around, him and I, and we came back home. My wife was total;y -- she was just more or less falling apart. And I said, what's going on? And she said HIlliS i" ,\I,1UC. \S HIl'1 JU, ,;\'(; ....U~\'Il'1 "'III1'/"UX ;'1;'-~IfJ.llf,11 'II'/" 7/;"..;-li.'.-IJ.'t ".\ '.....ml.! I I-'ll!;" .'i) C;) I...J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. A. Q. A. Q. EKam./Bangs - Bendzin 75 needed for digging a trench -- from Taylor Rental to fiK that trench and to have that line from the well to the trailer laid down, because he didn't want to wait until they were finally able to do it, just so he has good water again. And that work he did himself, and I paid him for the rental. That's all he asked me to do. For the rental of the equipment but not for any of the time he put in? Yeah. You're saying because he never asked you for -- to pay him for the time that he put on the job. Is that right? He never asked me, no. It just was the rental. And I don't consider this an improvement. But at that time he was the tenant and I was the landlord, and if this is the case, well, that's my responsibility to come up with it. Other than that, other than the well that you're talking about, was there anything else-- No. --up to February of '94? No. When in time after February of 1994, or if it was before February of 1994, when did you tell Mr. "UII'i. .\'dUl',h UI'I'OIUJ.\'I; SI U\"Il'1 "'HrI'/"1r,;7';"-!IIt.llt,!1 \,"1. 7,;.....qj.t.II... 1'1 '-.""Il.! I 1.111!;" 94-7107 EaUITY TERM In addition, based upon the reliance of the defendant on the promise to transfer the aforesaid land and option for the additional consideration of $3,500.00, the plaintiff made Improvements to the real property which Includes tearing out and replacing the old drywall ceilings, replacing commodes and repair work to the barn roof located on the property in question. The pleadings are closed. Depositions and answers to interrogatories have been filed, and defendant has filed an affidavit. Defendant has moved for summary judgment. Briefs were filed and the Issue was argued on April 17, 1996. On August 18, 1992, defendant became the owner of the Warden Farm by a fiduciary warranty deed from the estate of his grandmother, Hedwig Warden. Plaintiff and Hedwig Warden had previously signed the following written agreement dated September 12, 1988: Mrs. Warden and Donald Vernet have entered Into an agreement concerning occupancy of that area of Mrs. Warden's farm es shown on the attached diagram. The facts leading up to this arrangements are that the previous occupant of these premises not only did not teke care of them and provide proper maintenance, but apparently either Intentionally or unintentionally caused the premises to substantially deteriorate. Mr. Vemet, desiring to Iivaln the area, and possessing various construction skills necessary to repair and restore the premises, suggested an arrangement which Mrs. Warden has generally agreed to. The arrangement essentially is that Mr. Vernet can have occupancy of the premises a8 8hown on the attachment, and that Initially the rent will be payable not In dollar8, but In labor and servlce8 to be performed by him In repairing, maintaining and re8torlng the preml8es. Pursuant to the understanding of the parties, Mrs. Warden will pay for materials, as and if required, so long as Mr. Vernet first provides her or her agents, with information concerning the activities to be performed, the nature of the materials and labor required, and the estimated cost thereof. Subject to her prior approval, Mrs. Warden will also reimburse for all necessary <lutslde labor (not including Mr. Vernet) required for all work except to the mobile home; and outside -2- 94-7107 EaUITY TERM labor required for the mobile home will be the responsibility of Mr. Vernet. It Is expected that this arrangement would extend for the better part of one year from the date hereof. It Is alao understood that after the neceasary subatantlal renovations and repalra hava been completed, the parties will enter Into a rental arrangement whereby Mr. Vernet will pay rent In money rather than In aervlces, under an arrangement which will be fair to both parties. He will continue to be responalble for all regular maintenance and repair of the occupied premises. It is understood and agreed by the parties that, so long as Mr. Vemet faithfully performs the services required In restoring, maintaining and preserving the premises, he shall be entitled to continue his occupancy of the premises Indefinitely into the future subject, however, to the right of Mrs. Warden to terminate his rights upon six month's notice. In the event that Mr. Vernet fails to carry out his duties and obligations In a satisfactory manner, his rights shall be subject to termination upon thirty days' notice. Mr. Vernet agrees to provide, on a regular basis, proper accountings to Mrs. Warden or her agents with respect to time spent, work performed, materials acquired and the costs thereof, and all other details with respect to work and services provided. The parties further acknowledge the work that Is required is to a large degree set forth on the document prepared by Mr. Vernet which Is also attached hereto. Mr. Vernet acknowledges receipt from Mrs. Warden of reimbursement for various materials Installed in the premises, in the amount of $205.85, and also the sum of $1,500.00 as an advance for painting and repair of the barn, and repair of the driveway. (Emphasis added). Pursuant to the agreement, plaintiff took up residence in the mobile home on the Warden Farm. On April 1, 1990, plaintiff and Hedwig Warden entered into a one year written lease of a 'Mobile home on Warden Farm located along Conodoguinet Creek, Including all areas except those under lease to Mr. and Mrs. Rick Shindel." The lease was for total of $1,200 payable at the rate of $100 per month. A clause in -3- . 94-7107 EQUITY TERM the lease provided: 1) Tenant cannot sublet or rent any portion of premises to anyone else. 2) All repairs and maintenance of the mobile home and the entire pr.ml... .hall be performed and paid for by tenant, who ,. obligated to maintain the preml... In a cfean and neat condition, removed IUtrash and garbage, cut the fawn and weed., etc. 3) Tenant understands that the other tenant, Mr. and Mrs. Shlndel, have a right of entry for themselves and their visitors through the subject premises. (Emphasis added). Plaintiff remained In the mobile home after the one year term of the lease ended on March 31, 1991. He continued to pay rent and perform repairs and maintenance. By operation of law, since the prior term of the lease was one year, the new term also became one year. Witmer v. Exxon Corp., 465 Pa. 540 (1981); Mack v. Fennel, 195 Pa. Super. 501 (1961). After defendant became the owner of the Warden Farm In August, 1992, plaintiff had discussions with him conceming the sale of some land where the mobile home is located. Plaintiff wanted to tear down the mobile home and build a residence. Plaintiff stated In his deposition that as of December, 1992, he told defendant that he was not interested In continuing to live on the premises unless defendant would sell him some land. In March, 1993, defendant told plaintiff to find a surveyor. Plaintiff found a surveyor, Milton Davis, and showed him around the farm. A subdivision plan was drawn up in October, 1993. Plaintiff testified In his deposition, that on November 14, 1993, referring to defendant: His exact words were, before anything, I'd like to get this resolved. I can't say he said "rasolved," but he said something thereabouts. He wanted to get that cleared up and get that taken care of, because he knew I was just bubbilng to find out what was going to happen here. -4- 94-7107 EQUITY TERM So he started explaining to me how he had come to the conclusion of taking the assessed value of the farm and what he paid as per his grandmother's death and his Inheritance, and he divided it somehow or another, came down to approximately $7,000 an acre, and he wanted to give me that for half price. And I stopped him and I said, well, Andreas, that's 1.87. Oh, whatever, he said. It's 1.87 acres for that lot. And he said, well, what do you think about $35001 Now, he says 3,000, but I'm almost positive It was 3500, because It was half of 7,000. And I said, sold. I leaned my head back specifically and said, thank you, Lord, and smiled at him. And he said that he would call Mr. Katzman [defendant's attorney] and make arrangements to make the final steps. Plaintiff claims that this conversation constituted an oral agreement by defendant to sell him a surveyed, 1.8 acre lot on the Warden Farm. In his deposition, plaintiff stated that he did repalro and maintenance at four locations on the farm In reliance upon the oral contract to sell him the lot: the well, the ceiling of a carpenter shed, the driveway and tree maintenance. Plaintiff has two receipts totalling $98.59 for materials purchased tor such work subsequent to November 14, 1993. The Statute of Frauds provides that oral contracts for the sale of land are Invalid. 33 P.S. ~ 1. In Kurland v. Stalker, 518 Pa. 587 (1987), the Supreme Court of Pennsylvania stated: The object of the statute is to prevent the assertion of verbal understandings in the creation of Interests or estates In land and to obviate the opportunity for fraud and pe~ury. It Is not a mere rule of evidence, but a declaration of public policy. In the absence of equities sufficient of themselves to take the case out of the statute, It operates as a limitation upon Judicial authority to afford a remedy unless renounced or waived by the party entitled to claim Its protection. OUf case law Is very explicit as to the requirements which -5. . . 94-7107 EQUITY TERM must be met to take an oral contract for real estate out of the statute. The terms of the contract must be shown by full, complete, and satisfactory proof. The evidence must define the boundaries and Indicate the quantity of the land. It must fix the amount of the consideration. It must eatabllsh the fact that possession WIlS taken In pursuance of the contract, and, at or Immediately after the time It was made, the fact that the change of poasesslon was notorious, and the fact that It has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated In damages, and such as would make rescission inequitable and unjust. (Citations omitted). (Emphasis added). A grant of summary judgment under Pa. Rule of Civil Procedure 1035 Is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support a conclusion that no genuine Issue of material fact exists and the moving party Is entitled to judgment as a matter of law. Atkinson v. Haug, 424 Pa. Super. 406 (1993). Although disputed by defendant, for the purposes of this motion for summary judgment we will assume that defendant entered Into an oral contract with plaintiff on November 14, 1993, to sell plaintiff a 1.87 acre lot on the Warden Farm. The issue here Is whether there Is sufficient evidence to go to trial on plaintiffs claim that the alleged oral contract to sell real estate Is not barred by the St':ltute of Frauds. As a matter of law, we conclude there Is insufficient evidence to proceed to trial. In Kurland v. Stolker, supra, the Supreme Court stated: "exclusive possession taken and kept up in pursuance of the contract is an Indispensable ingredient In every case. . .." In the case sub iudlce, plaintiff took possession pursuant to a written agreement with Hedwig Warden dated September 12, 1988; he -6- . . 94-7107 EQUITY TERM continued possession pursuar.t to a written lease with Hedwig Warden between April 1, 1990 and March 31, 1991; and he has since continued possession for one year terms by operation of law. The lease upon which plaintiff Is holdlng-over Is for a 'Mobile home on Warden Farm located along Conodoguinet Creek, Including all areas except those under lease to Mr. and Mrs. Rick Shindel." Plaintiff never took exclusive possession of the surveyed 1.8 acre lot on the Warden Farm that he claims Is the subject of the November 14, 1993, oral agreement of sale pUf3uant to that agreement. Nor was there, at or immediately after the time of the alleged oral agreement, a change of possession that was notorious or exclusive. Plaintiff's argument that he only remained on the Warden Farm after January, 1993, because defendant expressed Interest In allowing him to purchase some land Is not sufficient to take the case out of the Statute of Frauds. Plaintiffs further argument that there are equities sufficient of themselves to take the case out of the Statute clearly does not meet the stringent requirements to transfer title by equitable estoppel. See, Vogelsong v. Vogelsong, 36 Cumberland L.J. 257 (1965). Therefore, summary judgment must be entered In favor of defendant.2 2. This resolution makes It unnecessary for us to address defendant's other contention that the credible evidence Is insufficient to show part performance by plaintiff which could not be compensated In damages, and such as would make rescission inequitable and unjust. -7-