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HomeMy WebLinkAbout95-03970 v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. f)',' 1') A' CIVIL 1099!l T.I.---- THERESA A. PENNINGTON, plaintiff RICHARD A. BELL and STEPHANIE J. BELL and RICHARD A. BELL t/d/b/a BELL LANDSCAPING AND HOME IMPROVEMENTS and BELL CUSTOM HOMES, . Defendants . . COMPLAINT 1. The Plaintiff is Theresa A. Pennington, an adult individual, who resides .at 713 Valley Road, Enola, Cumberland county, Pennsylvania, 17025, 2. The Defendants Richard A. Bell and stephanie J. Bell are husband and wife, adult individuals, who reside at 1085 Valley Road, Enola, Cumberland county, Pennsylvania, 17025. 3. The Defendant Richard A. Bell named and identified above in paragraph two also trades and does business as Bell Landscaping and Home Improvements and Bell custom Homes (hereinafter referred to as Bell custom Homes) and resides at 1085 Valley Road, Enola, Cumberland County, pennsylvania. 4. On or about August 16, 1994, the Defendants, Richard A. Bell and Stephanie J . Bell, entered into an Agreement with plaintiff for the sale and purchase of approximately two acres of land then having an address of 1085 Valley street, Enola, Pennsylvania. A copy of said Agreement is attached hereto and incorporatecS herein by reference as Exhibit "A". '. 5. upon executing the Agreement of August 16, 1994, by Plaintiff on August 17, 1994, plaintiff paid a check in the sum of $17,500.00 to the Defendants, Richard A, Bell and stephanie J. Bell, as a deposit toward the purchase of said real property. 6. As a condition of the Sales Agreement identified as Exhibit "A" to Plaintiff's complaint, one of the conditions of the sale of the property was that plaintiff had to give an exclusive building right for the construction of any house to be constructed on the said purchased property to Richard A. Bell, t/d/b/a Bell Landscaping and Home Improvements and Bell Custom Homes, 7. Another condition of the said Agreement identified hereinabove as Exhibit "A" to Plaintiff's Complaint was that any connection to public sewer would be included in the said purchase price of the proposed home to be built by Richard A. Bell. 8, The price quote given by Richard A. Bell to Theresa Pennington was for a total sales price including the land of $152,000.00, including the sewer connection, A copy of said price quote is attached hereto and incorporated herein by reference as Exhibit liB". 9, Problems developed with obtaining sewer connection and Defendants Richard A. Bell and stephanie J. Bell failed or refused to pursue subdivision of the property. 10. Sewer connection was going to become expensive for Defendant Richard A. Bell, t/d/b/a Bell custom Homes. For the above-referenced reason or for other reasons unknown to Plaintiff, Defendants Richard A. Bell and stephanie J. Bell have not 2 ~.' .....-..- ..-._--.- ,": i -l.. subdivided the property described in the Agreement of Sale, identified herein as Exhibit "A" to Plaintiff's complaint. 11. As a result of problems arising with sewer connection and/or subdivision, Defendant Richard A. Bell as seller and as President of Bell Custom Homes, executed an Addendum to the Agreement identified hereinabove as Exhibit "A". Said Addendum executed by the parties on February 5, 1995, is attached hereto and incorporated herein by reference as Exhibit "C". 12, In said Addendum executed on February 5, 1995, Exhibit "c", the parties agreed as follows: 1. Should the property in question at any time be unapproved for the building of a primary dwelling then all monies given to the seller by the purchaser will at that time be returned to the purchaser in full within three business days. In addition, the purchaser will owe no money to the seller. 2. Should the property in question not be ready for building approval for any reason by April 3, 1995 then all monies given to the seller by the purchaser will be returned in full to the purchaser by April 7, 1995. In addition, ths purchaser will owe no money to the seller. 3. Should Richard Bell be unable to fulfill any requirements as seller or contractor, then all monies given to the seller by the purchaser will be returned in full to the purchaser in full within three business days. In addition, the purchaser will owe no money to the seller. 3 13. Richard Bell executed on behalf of himself as seller and as president of Bell Custom Homes and as agent for Richard Bell's wife, stephAnie Bell. 14. At all times since February 5, 1995, the property being sold and purchased under the Sales Agreement identified hereinabove as Exhibit "A" to Plaintiff's Complaint has been deemed unapproved for the building of a primary dwelling to the best knowledge of plaintiff. 15, The property being sold and purchased under the Sales Agreement identified hereinabove as Exhibit "A" to Plaintiff's complaint was not ready for building approval by April 3, 1995. 16. Richard A. Bell, t/d/b/a Bell CUstom Homes and Richard A. Bell and stephanie J. Bell as sellers of real property to Plaintiff have failed or refused to subdivide said property to be sold to plaintiff under a Sales Agreement identified hereinabove as Exhibit "A" to plaintiff's complaint. 17. Despite numerous demands, Defendants Richard A. Bell t/d/b/a as Bell Custom Homes and Defendants Richard A. Bell and Stephanie J. Bell have failed or refused to repay or return the deposited sum of $17,500.00 to Plaintiff. 18. Defendant Richard A. Bell has made numerous promises to Plaintiff that her deposit of $17,500.00 would be repaid to her. 19, Despite numerous promises from Richard A. Bell that said sum of $17,500.00 paid for the deposit for the purchase of said land described in Exhibit "A" herein, Defendants have failed or refused to repay or return said sum of $17,500.00 to Plaintiff. 4 COUNT 1- IMPOSSIBILITY OF PERFORMANCE 20. Paragraphs 1 through 19 of plaintiff's complaint are incorporated herein by reference. 21, By reason of the aforesaid reasons, the original Agreement of Sale between Defendants Richard A. Bell and stephanie J. Bell has become impossible of performance. 22, As a result of the impossibility of performance of the parties' original Agreement of Sale, the Plaintiff is entitled to the return and repayment of her deposit, the sum of $17,500.00. 23. Despite plaintiff's numerous demands, Defendants have failed or refused to repay or return plaintiff's $17,500.00 to plaintiff, WHEREFORE, Plaintiff demands judgment against Defendants Richard A. Bell and stephanie J. Bell and Richard A. Bell t/d/b/al Bell custom Homes in the amount of $17,500.00 plus costs of suit, attorney's fees and interest. said demand does not exceed the juriSdictional sum for compulsory arbitration. COUNT II - BREACH OF CONTRACT 24. Paragraphs 1 through 23 of plaintiff's complaint are incorporated herein by reference as if set forth at length. 25, The Defendants have failed or refused to perform the original Agreement of Sale with plaintiff. 5 '-.-- ",' -' \ 26. As a result of Defendants' failure or refusal to perform the original Agreement of Sale with plaintiff, the Defendants have breached their Agreement of Sale with plaintiff. 27. As a result of Defendants' failure or refusal to perform the original Agreement of Sale with plaintiff, the plaintiff is entitled to the return and repayment of her deposit, the sum of $17,500.00. 28. Despite plaintiff's numerous demands, Defendants have failed or refused to repay or return plaintiff's $17,500.00 to plaintiff. WHEREFORE, plaintiff demands judgment against Defendants Richard A. Bell and stephanie J. Bell and Richard A. Bell t/d/b/al Bell Custom Homes in the amount of $17,500.00 plus coste of suit, attorney's fees and interest. said demand does not exceed the jurisdictional sum for compulsory arbitration. COUNT III - BREACH OF CONTRACT - FAILURE TO PERFORM IN A TIMELY MANNER 29. paragraphs 1 through 28 of plaintiff's complaint are incorporated herein by reference as if set forth at length. 30. The Defendants have failed or refused to perform the original Agreement of Sale in a reasonable and timely manner. 31. As a result of Defendants' failure or refusal to perform in a reasonable and timely manner, Defendants have breached the original Agreement of Sale and its amendments with plaintiff. 6 32. Ae a result of Defendant.' failure or refusal to perform in a reasonable and timely manner, plaintiff is entitled to the return and repayment of her deposit, the sum of $17,500.00. 33, Defendants' failure to return and repay said sum of $17,500.00 to plaintiff has harmed plaintiff in the sum of $17,500.00. WHEREFORE, plaintiff demands judgment against Defendants Richard A. Bell and stephanie J. Bell and Richard A. Bell t/d/b/al Bell Custom Homes in the amount of $17,500.00 plus costs of suit, attorney's fees and interest. Said demand dOGS not exceed the jurisdictional sum for compulsory arbitration. COUNT IV _ ALTERNATIVE COUNT - TERMINATION OF CONTRACT 34. paragraphs 1 through 33 of plaintiff's complaint are incorporated herein by reference as if set forth at length. 35. The Defendants have failed or refused to perform the original Agreement of Sale with plaintiff. 36. In the alternative, as a result of Defendants' failure or refusal to perform the original Agreement of Sale with plaintiff, the contract for the sale of land to plaintiff has terminated. 37. Defendant Richard A. Bell. agreed to return or repay plaintiff's monies of $17,500.00. 38. In the alternative, as a result of the said termination of the original Agreement of Sale, the plaintiff is entitled to the return and repayment of her deposit, the sum of $17,500.00. 7 VERIFICATION I, Philip Ritchie, power of Attorney for Theresa A. pennington, Plaintiff, verify that I have personal knowledge of the facts in the foregoing complaint and that the statements set forth in the foregoing complaint are true and correct to the best of my knowledge, information and belief; I am making this verification on behalf of the Plaintiff for the reason she is outside the jurisdiction of the court and has authorized me to sign this verification as she is not available in time for filing of this complaint. I understand that false statements herein are made subject to the penalties of 18 pa. c.S.A. 4904 relating to unsworn falsification to authorities. rJ~. ~~ PhlP tche DATE: ,- '21-15" .. ~~" .:- ~ On this day, August 16, 1994, it is here agreed that Richard A. Bell and Stephanie J. Bell are entering into an agreement with Theresa Pennington. This agreement is for the sale of approximately 2 acres of land located at what is noW in total known as 1085 Valley Street, Enola, PA. The two acres mentioned above will be in the shape of a flag-pole. It will start on the western side of the new driveway for 1085 Valley Street and run to the western most edge. It will include the entire western edge and a portion of the northern edge. This description is only approximate and the exact boundaries will be determined by the company who will do the subdivision. It is known that the property is not yet subdivided, but has been perked, This perk was not passed, therefore, the only option for disposal of waste, is to hook up to public sewer. This will be Included in the construction price for the home to be built on the lot. Let it be known that on this day, August 16, 1994, Ms. Pennington will make a deposit on the said property. The purchase price of the property Is $35,000,00 (thirty-five thousand dollars). A deposit of half of the entire purchase price equalling $17,500.00 will be made this day, This will leave a balance of $17,500,00 to be paid upon completion of subdivision and Ms. Pennington will then receive a deed for the property, The only condition on the sale of this property is that Ms. Pennington give exclusive building rights of any house to be constructed on the above mentioned property to Richard A. Bell (Bell Landscaping and Home Improvements and Bell Custom Homes), By signing this agreement, it is understood that Ms. Theresa Pennington agrees to this condition, Deposit t/J j 1. iJ1JC ' 00 ~Wl).llij ~./6-~~ Richard A, Bell, seller date Balance ~ fA fJ. . iA. S>) i9'"f Theresa pennington,2,er date &'., '.tIl}- I ' St phanie J. Bell, seller date E Xt, , 'h ( i-- (I I' AI ,W In a previolls agreement dated Augusil7~~4, the purchaser agreed to buy a subdivided property at the appro~mate location of 1085 Valley Rd Enola,Pa,(owned by Richard & Stephanie Bell and sold under contract to Bell Custom Homes,) for the sole purpose of building a primary dwelling, Due to numerous delays and possible unapproval of the property for the building of a primary dwelling, on this the c;- day of fE"(J , 9 S Richard Bell, seller and president of Bell Custom Homes, and Theresa Pennington, the potential purchaser, enter into this updated agreement and acknowledgment. All parties agree to the following: I, Should the property in question at any time be deemed unapproved for the building of a primary dwelling then all monies given to the seller by the purchaser will at that time be returned to the purchaser in full within 3 business days, In addition, the purchaser will owe no money to the seller.. 2, Should the property in question not be ready for building approval for any reason by April 3, 1995 then all monies given to the seller by the purchaser will be returned in full to the purchaser by April 7th, 1995, In addition, the purchaser will owe no money to the seller. 3, Should Richard Bell be unable to fulfill any requirements as seller or contractor then all monies given to the seller by the purchaser ' will be returned in full to the purchaser in full within 3 b~iness days, In addition, the purchaser will owe no money to the seller. -r!.:.iLl ~ , z. -5-"15 :!:,:~ ~Ir~ purchaser, Richard Bell seller and President of Bell Custom Homes. E:x 1-/ I 1S;r- '/ c I, ,\[' ,\\\J '1\,1 In a previous agreement d:lted Augus, 17th; 1994, the purchaser agreed to buy a subdivided property at the approximate location of 1085 Valley Rd Enola,Pa.(owned by Richard & Stephanie Bell and sold under contract to Bell Custom Homes,) for the sole purpose of building a primary dwelling, Due to numerous delays and possible unapproval of the property for the building of a primary dwelling, on this the c;- day of fE'fJ ,9 S Richard Bell, seller and president of Bell Custom Homes, and Theresa Pennington, the potential purchaser, enter into this updated agreement and acknowledgment. All parties agree to the following: I, Should the property in question at any time be deemed unapproved for the building of a primary dwelling then alimonies given to the seller by the purchaser will at that time be returned to the purchaser in full within 3 business days, In addition, the purchaser will owe no money to the seller.. 2, Should the property in question not be ready for building approval for any reason by April 3, 1995 then all monies given to the seller by the purchaser will be returned in full to the purchaser by April 7th, 1995, In addition, the purchaser will owe no money to the seller. 3, Should Richard Bell be unable to fulfill any requirements as seller or contractor then all monies given to the seller by the purchaser will be returned in full to the purchaser in full within 3 business days, In addition, the purchaser will owe no money to the seller, -c.:.d-tl ~ I Richard Bell seller and President of Bell Custom Homes, ;2h~/;.o 2. -5-"15 THERESA A, PENNINGTON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 95-3970 CIVIL TERM RICHARD A. BELL and STEPHANIE J. BELL and RICHARD A. BELL t/d/b/a BELL LANDSCAPING AND HOME IMPROVEMENTS and BELL CUSTOM HOMES, Defendants PRAZCIPB TO INT_. D_I'r.ULT JUDGMENT TO TBB PROTBOMOTARY, COURT 01' CONXOM PLEAS CUJlBIRLAIlD COUIITY, PZIQIBYLVAlfIA Enter a judgment in favor of Plaintiff and against the Defendants above named for failure to file within the required time an Answer to the complaint in the above-captioned case, and assess the Plaintiff's damages as follows: Amount claimed in Plaintiff's Complaint Dggket Costs $17,500.00 $ 99.46 . ~' Total '$17,588.46' 11 f1. 'jt'(\ .(1(. Il (II ~ It is hereby certified that a written notice of intention to file n':'/,,; f'>( this Praecipe was mailed to the Defendants, after the default Stlrf:'t occurred and at least ten (10) days prior to the date of the filing of this Praecipe. See Exhibit A, B, C and D attached. RUPP , ~ /~(r;z By : ---QZ:- Attorney for Plaintiff Richard C. Rupp DATED: SEPTEMBER ~. , 1995 Judgment entered and damages (J~tr,l. f,. (I.) -I/.: Ii- -/ 'll )\, ,ltll~/.I""l '1("l"I.~J'I'1 11.,1/ Itf.'1 li,r~I_~ /'(1/1 THERESA A. PENNINGTON, PENNSYLVANIA plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, CIVIL ACTION - LAW v. NO. 95-3970 CIVIL TERM RICHARD A, BELL and STEPHANIE J. BELL and RICHARD A. BELL t/d/b/a BELL LANDSCAPING AND HOME IMPROVEMENTS and BELL CUSTOM HOMES, . . . . . . . . . . Defendants IMPORTANT NOTICE TO: RiChard A. Bell t/d/b/a Bell Landscaping and Home Improvements 1085 Valley Road Enola, PA 17025 DATE OF NOTICE: AUlJUst 22, 1995 YOU ARE IN DEFAULT BECAUSE yOU HAVE FAILED TO TAlCE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU HAY LOSE YOUR PROPERTY OR OTHER RIGHTS. YOU SHOULD TA1<E THIS NOTICE TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. court Administrator 4th Floor CUmberland county Court House Carlisle, PA 11013 Telephone: (717) 240-6200 Date: August 22, 1995 By: ",-"LJ- (. RIC C. RUPP, QU Attorney 1.0. 134832 355 North 21st street suite 303 Camp Hill, PA 17011 (717) 761-3459 Attorneys for plaintiff EXItIOT'l' "e" ~0'~ -J -. ?'-\.) ~. ~ ,...,. .... - ~ . .,... . p' ~ ." 1..." -J " te::-., ~ c.-.; '"' C) t>.J ~ 7'-.,~ -" . .. ...", ::a: d' - ~ ~, c.o .." ... ~ ("" r. -..t) I .... , ~ 1 \