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CHILCOTE and KELLY L, CHILCOTE, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO, '17- 3/~'.l. CIVIL lUA-- CIVIL ACTION KEITH PEIFER, Defendant COMPLAINT 1. The Plaintiffs herein are WENDELL B, CHILCOTE and KELLY L, CHILCOTE, his wife, also known as BRAD CHILCOTE and KELLY CHILCOTE, adult individuals who live and reside at 712 South York Street, Mechanicsburg (Upper Allen Township), Cumberland County, Pennsylvania. 2, The Defendant herein is KEITH PEIFER, an adult individual who lives and resides at 1450 Main Street, Lisburn, (Lower Allen Township), Cumberland County, Pennsylvania. 3, At all times relevant and material to this cause of action, Defendant was and is an ownet' of an unimproved building lot in the subdivision of Yellow Breeches Farm, Lower Allen Township, Cumberland County, Pennsylvania, being more particularly bounded and described as set forth in Exhibit "A" attached hereto and made a part hereof by reference. 4, At all times relevant and material to this cause of action, Defendant was and is the sole proprietor of a building construction company and was trading and doing business as Peifer construction or Peifer Construction Company. 1:,.,\ .",,! ~1^Hl It. It ~.,,' ,\1 t t. 5, On or about March 21, 1997, Plaintiffs and Defendant I i , t , I i entered into a certain Agreement of Sale for the sale by Defendant and the purchase by Plaintiffs of the building lot more fully described in Paragt'aph 3, above, for the purchase price of $39,000.00, A true copy of said Agreement of Sale, marked Exhibit "8", is attached hereto and made a part hereof by reference, 6. On or about March 20, 1997, Plaintiffs and Defendant entered into a certain Construction Agreement providing for Defendant to construct and erect for Plaintiffs, upon the said building lot, a residential dwelling house in accordance with the plans and specifications prepared by Defendant for Plaintiffs, at a cost of $124,950,00 (which amount is in addition to the purchase price for the building lot), all as expressly required by Paragraph 4 of the Agreement of Sale dated March 21, 1997, A true copy of said Construction Agreement, marked Exhibit "CO, is attached hereto and made a part hereof by reference. 7, In Paragraph 3,C of the Agreement of Sale, Defendant expressly represented and warranted that he would convey good title to the building lot to Plaintiffs free and clear of liens and encumbrances, including rights-of-way and easements that would "substantially interfere with the intended use or building plans," 8, In reliance upon the Construction Agreement, the Agreement of Sale, and Defendant's express representation and -2- warranty as to the quality of title to be conveyed, Plaintiffs paid to Defen~ant the sum of $4,000.00 as the down payment required by Paragraph 2 of the Agreement of Sale, 9, In reliance upon the Construction Agreement, the Agreement of Sale and Defendant's express representation and warranty as to the quality of title to be conveyed, Plaintiffs applied for a construction mortgage loan in the principal amount of $150,000,00, (91.5% of the total cost of the building lot and the house to be constructed), the minimum amount that Plaintiffs needed in order to complete the purchase of the building lot and to pay for the construction of the proposed residential dwelling, and Plaintiffs paid a mortgage application fee of $325,00, 10. In reliance upon the Construction Agreement, the Agreement of Sale and Defendant's express representation and warranty as to the quality of title to be conveyed, Plaintiffs engaged the services of an engineer to locate and mark the corners of the building lot, at a cost of $379,47, 11. At the time the Agt'eement of Sale was executed by the parties hereto, Defendant knew that the building lot was encumbered by an easement in favor of Pennsylvania Power and Light Company, 250 feet wide, for the operation and maintenance of a major overhead electric transmission line across the middle of the property that limited the available building area. -3- 12, As the result of the aforesaid power line easement, Plaintiff's mortgage lender concluded that the building lot was worth substantially less than its sale price and the lender refused to lend Plaintiffs the sum of $150,000.00 that they needed in order to build the house contemplated by the construction Agreement, 13, Plaintiffs consulted with two other mortgage lenders to whom they were referred by Defendant, but both mortgage lenders agreed that the building lot was worth substantially less than its sale price and both lenders refused to lend Plaintiffs the amount of $150,000.00 to build the house that was contemplated by the Construction Agreement. 14. Plaintiff's inability to obtain a construction mortgage loan in the principal amount of $150,000.00 prevents them from building the house contemplated by the parties hereto in the Construction Agreement. 15. Plaintiff's inability to obtain a construction mortgage loan in the principal amount of $150,000,00 results directly from the major overhead power line easement that has reduced the value of the lot, limited its building area and substantially interferes with the intended use or building plans. 16, For the reasons set forth in Paragraph 15, above, Defendant cannot fulfill his express warranty and representation regarding the quality of title to be conveyed to -4- Plaintiffs and he is in breach of the Agreement of Sale. 17. As the result of Defendant's breach of the Agreement of Sale, Plaintiffs have elected to terminate the Agreement of Sale and the Construction Agreement and they have demanded that Defendant pay to them the amounts they have paid in reliance upon the contract, to wit: the sum of $4,704,47, as damages for his breach of the contract, but Defendant has failed and refused to pay said sum, or any part thereof, to Plaintiffs. WHEREAS, Plaintiffs demand judgment in their favor and against the Defendant herein in the amount of $4,704.47, together with interest and costs of suit, which amount does not exceed the jurisdictional amount requiring arbitration referral by Cumberland County Local Rule No. 1301-1, ~,,~ Marlin R, McCaleb Attorney I. D. No, 06353 219 East Main Street P.Q, Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiffs -5- VERIFICATION We verify that the facts set forth herein are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa, C,S" Section 4904, relating to unsworn falsification, Date: June 13 ~~~~ Wen e 1 B, 'Chilcote , 1997 tCI1&C{f1 lly L. Chilcote ,..;, ,'..I ~1.\Hi ,rj I< t,l" .\11 H -6- ALL THAT CERTAIN tract or parcel of ground situate in Lower AIlt:n Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, lO wit: BEGINNING at the puint of intersection between the westerly dedicaled right of wav line of legislative Route 21014, also known as Lisbum Road, and the line . - of adjoiner between Luts 11 and 12 on the hereinafter mentioned plan of lots: thence Nurth 39 degrees 03 minutes 53 seconds West by said line uf adjoiner and lhe line of adjuiner between Lots 10 and 12 a distance of 405.10 feet to a puint; thence Nurth i4 degrees 35 minutes 50 secunds West by the line of adjuim:r betwecn LOls 10 and 12 a distance of 100 fcetlo a point: thence North 15 degrees 24 minules 09 scconds East by the line uf adjuincr betwecn Luts 1 and 12 a distance of 150 feel tu a point: thence Suuth i4 degrees 35 minutes 51 seconds East bv the line uf adjuincr between Lots 12 and 13 a distance of 429,66 feet lo a puinl un the wcslcrly dedicated right of way linc of legislative Ruule 21014: lhcnce South 15 Jegrccs 24 minulcs U9 scconds West by saiLi westerly dedicated right of way line 385.43 feet to a point un said wcsterly dediealed right of way line, the point and place of BEGINNING, BEI:-:G Lot No. 12 on the Final Subdivision Plan ut Yelluw Breeches Farm dated July 3. 19i8 and recorded in lhe Cumberland County Recorder ot Deeds Office at Plan Book 34, pages 56. 56-A. and 56-B, EXHIBIT "A" IN WITNESS WHEREOF, the panics have duly cucutcd 111... prescnls lI1e day and y.... filst wrilten above, intending thereby to legally bind themselves and II1cir respective hein, personal representative., .ucccsson and assign.. WlTNESSI!D BY: SEU.I!R: ~ ~~SEAL) (SEAL) PURCHASER: ~~/~./4- (SEAL) (SEAL) 3 EXHIBIT "B" CONSTRUCTION AGREEMENT TillS AGREEMENT, mode this ::::>0 -f~OY of /}{a.-. J, ,19'l1by and between , Keith E. relfer of Peifer Construction rarty oflhe first part. hereinaner coiled CONTRACTOR AND Orad Chlleole Kellv Chlleole partie. oflhe seeond port. hereinoner called OWNER WITNESSETII: Thot the CONTRACTOR and lhe OWNER for Ihe mutuol consideralion hcrcinllficr mentioned, intending to be legally bound hereby. agree as follows: ITEM I. SPECIFIC TERMS AND PROVISIONS OF TIllS CONTRACT (A) Descriplion of Building: 2 Story Colonial a. per plan. (B) Location: Cumberland County Yellow Breeches Fann Lot #12 (C) Work or material. shown on plans or specificalions auached hereto and signed by the panics hereto: (D) Work 10 commence on or before 1997 and 10 be completed within ill days thcrcaficr or as extended as hereinafter provided, ITEM II, SCOPE OF WORK CONTRACTOR shall furnish all the moterials and perfonn alllhe work for lhe construction of the home described in Item I, as shown on the said drawings and described in the speciricolions which documents arc incorporated herein by reference excepting however. labor and material as herein otherwise stipulated in this contract. lIouse to be completed in all respects for occupancy 8S D residence in broom clean condition except as otherwise herein provided. Materials to be new and if exact items set forth on the specifications cannot be obtained then CONTRACTOR shall have ,he right to subslilute reasonably comparable items, ITEM III. TIME OF COMPLETION The work to be perfonned under this contract shall commence on or before the time subscribed in Item I and the CONTRACTOR shall continue to pursue the construction of said dwelling 10 ellect completion wilhin the time stipulated provided, however, this time shall be extended to the extent that delay in perfonnance is caused by weather conditions, material being unavailable or any problems th:u may arise in the course of construction or any other reasonable cause lhal may prohibitlhe CONTRACTOR from perronning hereunder wilh each day of such delay 10 be added on to said completion dale. ITEM IV, LOCATING DWELLING ON LOT It shall be the responsibility and liability of the OWNER to properly indicate upon the site \..here and hllwthe d\\clling shall be situated, giving lot corners, elevations. bench marks. and other dalil neccssary for this rurflose; if OWNER fails to so locate the dwelling prior to time CONTRACTOR commences work. lhen CONTRACTOR may situale the tt\\elling in such J position as he deems advisable and CONTRACTOR shall in no way be responsible or liable 10 OWNER for improper location of the building or for any consequential results thcrefrom "hatsoever. EXHIBIT "e" ITEM XI. SPECIFICATIONS DOORS AND WINDOWS: Doors and windows Drc as per door and window schedule on plans. Shuucrs DfC for fronl only, unless otherwise specified. Windows will be a major vinyl line or equal and to be CONTRACTOR's decision, Grills for fronl windows only and ",reens for all windows may be ordered a. completion of job, Doorknobs 10 be slandard Wiser or equal locks, Bedrooms and balhs will include push bUllon locks on one side, All eXlerior doors, except garage door, 10 be keyed alike, Gsrage door 10 be a raised panel steellype door as per specs, All interior doors will be raised panel masonile doors tlcepl where specified difTen:ntly, All interior garage doors will be meLlI fin: code doors, Two standard basement windows, unless othclWisc specified in plans. All closet doors al bifold areas will be framed and trimmed, KITCHENS AND BATHROOMS: Kitchen cabinet allowance is with 90 degree comers. any additional angled comers will be additional. unless otherwise specified. Kilchen and bath allowance will be $3,100,00 10 include all kilchen Formica counler tops and all b..hroom molded lap and bowl. Faucels arc single lever Moen, American Standard or equal. Tubs arc 5 feet standard tub and shower combinalion, All commodes arc standard Elger, American Slandard or equal. Bathroom accessories 10 include towel bar, coilet paper holder, mirror or medicine cabinel. allowance of 1.l!!!L2f.! per bathroom. All medicine cabinm will have to be picked and rough opening dimensions given 10 CONTRACTOR in writing immediately before framing construction begins. Otherwise it will be an extra. Subfioors for vinyl and ceramic arc part of fiooring allowance, BASEMENT: Basement insulation will be 6" as per spec. Basement block walls or Superior Wall'" at CONTRACTORS oplion, GARAGE: Garage will be finished wilh fln:walllo living side of house only, All olher areas will be 2 x 4 construclion, No drywall. Garage and accessory buildings not facing healed areas will be 2 x 4 x 16 on center, PAINTING AND TRIM PACKAGE: Windows will be completely encased with colonial casing unless otherwise specified in contract. Exterior and interior painting to be applied in a professional manner as CONTRACTOR sees fll using all Duron Professional Deluxe label or equal. Walls to be painted flat. Trim 10 be painted semi.gloss. same color. Any staining will be an extra. Interior trim to include doorstops, adjustable metal shelves and clothing bar for all closets. excepllinen closets. Washer and dryer to include standard hookups and vented to Ihe oUlside:. second floor hookup to include: a pan for ove:rflow. Stair rails 10 be based on a Hemlock Rail System any upgrade will be al OWNERS expense. All Slep lreads will be yellow pine, except the basement Mailbo,es are OWNERS responsibility, Fiteplace is based on 52.10000 CONTRACTORS cost. Please see drawing on plans, Any overages will be al OWNERS cost and to be paid for in advance, EXHIBIT "c" " FLOOR COVERING: Floor covering will be inslalled wilhin 2 weeks of complelion of painling, Selection of all Oooring must be made prior to the slart of painling, Any delays could constitute un cxlra. Floor covering has a al!lQ allowance thai includes all carpel', ceramic Iile, vinyl, hardwood Ooors and .ubOoors, Price includes c:upet, pad, subOcors, labor and sales laX, LIGHTING: lighting allowance to include 120 oUllel. per home plus 2 telephone and cable oullelS, OWNER must have alllighling fixlure. on Ihe job site by Ihe time drywall is completed, Any oUlside pole IighlS will be additional. Doorbell and smoke deleclors will be in lighting allowance, Please nole: any call back. by elecirician due to not having Iighl' and appliance. on the job .ile on time will be an addilional charge. EXTERIOR: Driveways arc for front entnlllces and 1QQJI. selbacks, Side enlrances will be additional, or according to pll\JlS, Driveway to be stone only, All sidewalks will be from front door to driveway only and 30" in width, Siding cased on a standard double 4" vinyl, color must be chosen within two weeks of signing contract. Guners and downspouts will be seamless, Shingles will be Tempo 20 year fiberglass shingles or equal, Roof framing will be factory made trusses, where possible, All beams will be wood or metal 10 meet local building codes, All exterior and inlerior walls will be 2 x 4 x 16" on center, Landscaping, finish grading and seeding will be done by owner, Backfill and grading to be within a foot of all siding and 10 be done in a professional manner as CONTRACTOR sees fit or as otherwise specified, PLUMBING: Two outside spigots, one in Ihe fronl and one in the back will be provided, Plumbing will include standard V," copper pipes for water supply and PVC for waste. MISCELLANEOUS: Drywall will be y," except in areas where fire code requires SIB:' fire code drywall, Insulalion will be RI9 fiberglass in walls and basement Oooring and R30 fiberglass in ceiling, Framing plates on first Ooor to be pressure-ireated lumber and applied over insulalion, Contraclor will supply working final prinls with window and door schedule and complele spec shectlO be signed by both CONTRACTOR and OWNER, 4 EXHIBIT "C"