Loading...
HomeMy WebLinkAbout07-1590t w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, 5620 Charlton Way Mechanicsburg, PA 17050 Plaintiffs, vs. CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, 114 Foxshire Drive Lancaster, PA 17601 Defendants. DOCKET NO: CIVIL ACTION PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue a writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to ( ) Attorney (XX) Sheriff. Matthew Chabal III, Esquire Attorney I.D. No. 49926 Signature Jeffrey M. McCormick, Esquire Attorney I.D. No. 95049 Date: /ZZ x4 _ James Smith Dietterick & Connelly, LLP Mailing Address: P.O. Box 650 Hershey, PA 17033 Overnight Courier: 134 Sipe Avenue Hummelstown, PA 17036 Phone: (717) 533-3280 Attorneys for Plaintiffs Todd J. Tuttle and Jennifer L. Tuttle a C 6 4 v N d ?C N 77 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and DOCKET NO: 17-7. l5o? C ` /J JENNIFER L. TUTTLE, 5620 Charlton Way Mechanicsburg, PA 17050 Plaintiffs, CIVIL ACTION vs. CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, 114 Foxshire Drive Lancaster, PA 17601 Defendants. WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Date: 23. Prothonotary by o?°G?Dep y SHERIFF'S RETURN - OUT OF COUNTY A .CASE NO: 2007-01590 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TUTTLE TODD J ET AL VS CHARTER HOMES AT DARTMOUTH GRE R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: CHARTER HOMES AT DARTMOUTH GREEN INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within WRIT OF SUMMONS On April 20th , 2007 this office was in receipt of the attached return from LANCASTER Sheriff's Costs: So answers• - Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Lancaster Co 52.35 Sheriff of Cumberland County Postage .87 90.22 ? -,/az/e7 04/20/2007 JAMES SMITH DIETTERICK CONNELL Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY -b-CASE NO: 2007-01590 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TUTTLE TODD J ET AL VS CHARTER HOMES AT DARTMOUTH GRE R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT CHARTER HOMES BUILDING COMPANY to wit: but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within WRIT OF SUMMONS On April 20th , 2007 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: So answers• Docketing 6.00 Out of County .00 Surcharge 10.00 R. Thomas Kline .00 Sheriff of Cumberland County .00 16 . 0 0 ? SIa?1 7, 04/20/2007 JAMES SMITH DIETTERICK CONNELL Sworn and subscribe to before me this day of A. D. : OF SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 a (717) 299-8200 SHERIFF SERVICE PLEASE TYPE OR PRINT LEGIBLY. PROCESS RECEIPT, and AFFIDAVIT OF RETURN DO NOT DETACH ANY COPIES. 1 PLAINTIFF/S/ 2 COURT NUMBER Todd J. Tuttle et al 07-1590 civil 3 DEFENDANT/S/ 4 TYPE OF WRIT OR COMPLAINT Charter Hanes at Dartmouth Green Inc et al Writ of Sutrtrnons SERVE NAIVIt Ur' INU1VIVUAL, l UMF AIV T. t UM-UMA I PUN, t I L, , I U tlt JtMV t V Charter Homes at Dartmouth Green Inc 6 ADDRESS (Street or RFD, Apartment No., City, Boro, Twp, State and ZIP Code) AT 114 Foxshire Drive Lancaster, PA 17601 7. INDICATE UNUSUAL SERVICE: ? DEPUTIZE ? OTHER Now, MArrh 23 200 , I, SHERIFF OF LINTY, PA., do Wemyu putize the She if T.anCAStP1 County to execute this Wri WW t rn t e eto law. This deputation being made at the request and risk of the plaintiff. 8. IN Cumberland Please mail return of service to Cumberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof 9. SIGNATURE of ATTORNEY or other ORIGINATOR 10. TELEPHONE NUMBER 11. DATE MATHEW CHABAL III ESQ. "17-533--3230 3/23/07 _ 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) JAMES, SMITH, DIETTERICK & CONNELLY. LLP PO Box 650 HERSHEY, PA. 17033 SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13.1 acknowledge receipt of the writ l NAME of Authorized LCSO Deputy or Clerk 14 Date Received 15 Expiration/Hearing date or complaint as indicated above. ( JACKTE MICCICHE 717-390-2309 3/26Z07 4123/07 16. 1 hereby CERTIFY and RETURN that I ? have personally served, l?tave legal evidence of service as shown in "Remarks", ? have executed as shown in 'Remarks", the writ or complaint described on the individual, con 0 ny, corporation, etc , at the address shown above or on the individual, company, cor- poration, etc., at the address inserted below by handing a TRUE and ATTESTED COPY thereof 17. ? 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc„ named above (See remarks below) I R 30. REMARKS S.T.A.: 31. AFFIRMED and subscribed to before me this & F I Z_ i IF 41?-1 32. Si nat o 33 D to 34. day of 20 Dep Sher l 35 Signature of Sheriff 36 Date 37 Prothonotary/Deputy/Notary Public ERIFF OF C B&" 18. Name and title of individual served (if not sho n lationship to Defendant) 19 ?NoService E1V tJ 1 _ b I OIJ t N S a ;Z See Remarks Below (No. 30) 20 Address of where served (complete only if different than shown above) (Street or RFD, Apartment Ncf. City, Boro, Twp. 21 Date of Service 22 Time State and Zip Code) PM 23. ATTEMPTS D e Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. Y i3 - 24. Advance Costs 25 Service Costs 26 Notary Cerl 27 Mileage/Postage/N.F. 28 Total Costs 29, COST DUE OR REFUND f? m n n H V3 x 1 . WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriffs Office . , rct' .. a °`2 SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 • (717) 299-8200 n SHERIFF SERVICE PLEASE TYPE OR PRINT LE IDLY. PROCESS RECEIPT, and AFFIDAVIT OF RETURN Do NOT DETACH ANY COPIt . 1 PLAINTIFF/S/ 2 COURT NUMBER Todd J. Tuttle et al 07-1590 civil 3 DEFENDANT/S/ 4 TYPE OF WRIT OR COMPLAINT Charter Homes at Dartmouth Green Inc et al writ of Summons SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC, TO BE SERVED Charter Herres Building Company 6 ADDRESS (Street or RFD, Apartment No., City, Boro, Twp, State and ZIP Code) AT 114 Foxshire Drive Lancaster, PA 17601 7. INDICATE UNUSUAL SERVICE: ? DEPUTIZE ? OTHER Cumberland Now, March 23 20 , I, SHERIFF OFD IR COUNTY, PA., do her y , putize the She 'ff f r.anraGter County to execute this Wri n t e eof g to law. This deputation being made at the request and risk of the plaintiff. SHERIFF OF COU V 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: cllmberland Please mail return of service to Cuarnberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof 9. SIGNATURE of ATTORNEY or other ORIGINATOR 10. TELEPHONE NUMBER 1 1. DATE rife rrn .vu i.nHntAI. Jj? r..?-_ _w 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) JAMES,SMTTH, DIETTERICK & CONNELLY, LLP PO BOX 650 HERSHEY PA. 7.7033 SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13.1 acknowledge receipt of the writ t T NAME of Authorized LCSO Deputy or Clerk 14 Date Received 15 Expiration/Hearing date or complaint as indicated above.I JACKIE MICCICHE 71.7-390-2309 3/26/07 4/23/07 16. 1 hereby CERTIFY and RETURN that I ? have personally served ave legal evidence of service as shown in "Remarks", ? have executed as shown in "Remarks", the writ or complaint described on the individual, col ny, corporation, etc., at the address shown above or on the individual, company, cor- poration, etc., at the address inserted below by handing a TRUE and ATTESTED COPY thereof. 17 ? 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) 18. Name and title of individual served (if not shown above) (Relationship to Defendant) 19. ? No Service C 2;3--_V SO t 1 .I C,-WAD C, tS?) See Remarks Below (No. 30) F'PI r.A 1CW `-f-b C) !1 20 Address of where served (complete only if different than shown above) (Street or RFD, Apartment No , City, Boro. Twp 21. Date of Service 22. Time State and Zip Code) 1 PAA& M 3? 3S E° °7 _3 23. ATTEMPTS D e Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. Data Miles Dep. Int. Date Miles Dep. Int. 24. Advance Costs 25. Service Costs 26. Notary Cert. 27 Mileage/P s ge/N.F. 28 Total Costs 29, COST DUE OR REFUND 150 - 00 4/2-50 17 _ R 30. REMARKS S.T.A.: 31. AFFIRMED and subscribed to before me this 34 day of c.?c ? 1 f Crc 1. WHITE - Issuina Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriffs Office '1dR, LOOZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and DOCKET NO. 07-1590 JENNIFER L. TUTTLE, 5620 Charlton Way Mechanicsburg, PA 17050 Plaintiffs, CIVIL ACTION VS. CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, 114 Foxshire Drive : Lancaster, PA 17601 Defendants. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance as counsel on behalf of Defendants, CHARTER HOMES AT DARTMOUTH GREEN, INC., and CHARTER HOMES BUILDING COMPANY in the above matter. McNEES WALLACE & NURICK LLC By L , Susan . Metcalfe I.D. No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorney for Defendants Dated: January 24, 2008 1 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served via first-class mail, postage prepaid, upon the following: Matthew Chabal III, Esquire Jeffrey M. McCormick, Esquire James Smith Dietterick & Connelly, LLP P.O. BOX 650 Hershey, PA 17033 __ ar?d Susan V. Metcalfe Counsel for Defendants Dated: January A, 2008 f.. ? P.l _?..? ll7 -? ?? -_ . _? `? _" I r+,1 '_. C,? 7 ?J `_.,F i 7 -? F: 41k n W ORIGINAL James Smith Dietterick & Connelly LLP Jeffrey M. McCormick, Esquire Pa. Attorney I.D. No. 95049 134 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Attorneys for Plaintiffs jmm@jsdc.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, Plaintiffs, V. CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, Defendants. DOCKET NO: 07-1590 CIVIL ACTION JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. 0 4 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dial despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, ]as demandas presentadas aquf en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamac16n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 0 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and DOCKET NO: 07-1590 JENNIFER L. TUTTLE, Plaintiffs, V. CIVIL ACTION CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, JURY TRIAL DEMANDED Defendants. COMPLAINT INTRODUCTION 1. This is an action for damages and equitable relief as a result of Defendants' illegal nondisclosures and conduct in connection with the sale of property. As a result of such illegal activity, Plaintiffs were induced to purchase certain real estate, and have experienced water/flooding issues in their home. Plaintiffs seek compensatory damages as a result of the water/flooding issues, including treble damages, plus interest, costs, including reasonable attorneys' fees, and punitive damages. Plaintiffs also seek the equitable remedy of rescission, as the contract to purchase the property was based upon a fraud. THE PARTIES 2. Plaintiffs Todd J. Tuttle and Jennifer L. Tuttle (collectively "futtles" or "Plaintiffs") are adult individuals with a current address of 5620 Charlton Way, Mechanicsburg, Pennsylvania 17050. At all material times, the Tuttles were husband and wife. 3. Defendant Charter Homes at Dartmouth Green, Inc. is a Pennsylvania corporation with a principal place of business located at 114 Foxshire Drive, Lancaster, Pennsylvania 17601. Jk 4. Defendant Charter Homes Building Company (referred to, together with Charter Homes at Dartmouth Green, Inc., as "Charter") is a Pennsylvania corporation with a principal place of business located at 114 Foxshire Drive, Lancaster, Pennsylvania 17601. 5. Charter is in the business of building and selling custom designed homes in several Charter neighborhoods throughout Central Pennsylvania. VENUE 6. Venue is proper in Cumberland County pursuant to Pa. R.C.P. Nos. 1006, 2130, and 2179 because Cumberland County is the county in which the Plaintiffs' property, and Charter's former property, is located, which property is the subject matter of this cause of action. Further, it is the county in which the cause of action arose and/or where a transaction or occurrence took place out of which the cause of action arose. FACTUAL BACKGROUND Water/Drainage Issues Within Charter's Dartmouth Green Development 7. In or about 2001, Charter began offering homes, in the pre-construction stage, in the Charter "neighborhood" entitled Dartmouth Green, which development was located in Mechanicsburg, Pennsylvania ("Dartmouth Green"). 8. In a typical transaction, once a customer had selected Dartmouth Green as their Charter neighborhood, the customer would select a Charter home design, select a home site within Dartmouth Green, and then purchase their Charter home by entering into a Purchase Agreement with Charter and making a deposit. 9. Shortly after Charter completed the first wave of construction of custom-built homes, certain water and/or drainage issues began to occur within Dartmouth Green. ,1% 10. Charter discovered that a natural spring ran through Dartmouth Green, and that water would frequently come up from and through the ground throughout the development. 11. In an effort to contain these water issues, Charter designed Dartmouth Green so that the water that runs off the majority of homes is directed to a Swale, which then empties out at the flatest bottom point of the development. See Statement of Kimberly Holl, dated January 2, 2008 ("Noll Statement"), a true and correct copy of which is attached hereto as Exhibit A. Undisclosed Flood At The Goldiner Property 12. Upon information and belief, in or about February 2003, Charter completed the construction of a house in Dartmouth Green that had been purchased by David and Sherry Goldiner, which house had an address of 5610 Charlton Way. Mechanicsburg, Pennsylvania ("Goldiner Property"). See Statement of Sherry Goldiner, dated January 9, 2008 ("Goldiner Statement"), a true and correct copy of which is attached hereto as Exhibit B. 13. The Goldiner Property was built by Charter at the base of the bottom point of Dartmouth Green, the point at which the majority of the development's water flow was directed and emptied on to. See Exhibit A. 14. Upon information and belief, prior to the Goldiner's purchase of the Goldiner Property, Charter never disclosed, nor made any statements whatsoever to the Goldiners, regarding any prior water and/or drainage issues pertaining to Dartmouth Green, the Goldiner Property, or the Goldiner Property's susceptibility to such issues in general. 15. Upon information and belief, in March of 2003, just a few weeks after moving into the Goldiner Property, the Goldiners' basement was flooded with six inches of water after a rain event. A ,w 16. Upon information and belief, after the flood in the basement of the Goldiner Property, a neighbor informed the Goldiners that Charter employees had been pumping water out of the Goldiners' basement prior to their purchase of the Goldiner Property. 17. In response to the flooding of the Goldiner Property, Charter provided the following upgrades and remedial measures for the Goldiners free of charge: (a) Upgraded the existing sump pump; (b) Drilled and installed secondary overflow sump pit; (c) Installed a new, industrial-sized second sump pump in a new pit; (d) Installed a new backup battery system for both sump pumps; (e) Regraded the yard to divert flow of water from the house; (f) Installed discharge pipe underground running away from the house; and (g) Resodded all damaged areas of the lawn. Water/Drainage Problems At The Premises An Open Issue Within Development 18. In or about the summer of 2003, after the flood at the Goldiner Property, Aaron and Kimberly Holl were looking to purchase another home from Charter and move within Dartmouth Green, and during those negotiations, the water/drainage problems at and around the Goldiner Property were an open issue, and common knowledge among Dartmouth Green residents and Charter's sales staff. See Exhibit A. 19. While Charter had offered the Holls the home site next to the Goldiner Property to build their new house, the Holls picked a different site adjacent to the problem area because of their concerns with the water/drainage issues in and around the Goldiner Property, and only after assurances from Charter representatives that the water/drainage problems at and around the Goldiner Property would not occur at their chosen site. See Exhibit A. 4 Ilk .-t 20. While the Holls had rejected the site for their new home to be constructed, in or about July 2004, Charter completed the construction of a house next door to the Goldiner Property, which would eventually have an address of 5620 Charlton Way, Mechanicsburg, Pennsylvania ("Premises"), and put it on the market for sale. 21. While Charter was offering the Premises for sale, it was also being shown as an unoccupied "Spec House" or "Inventory Home" for Dartmouth Green. Charter's Intentional Non-Disclosure Of Water/Drainage Problems At The Premises 22. In September 2004. after a rain storm, the Premises experienced severe flooding in its basement, which required Charter employees Jim Vance and Mike Howell to pump water out of the basement, and perform other basement cleanup. See Exhibits A and B. 23. After the water removal and cleanup of the basement of the Premises, Charter represented to its sales representative in charge of selling the Premises, Danica Koppenheffer, that there had been a flood in the basement of the Premises, but that Charter had taken all necessary remedial measures to correct the problem. See Statement of Danica Koppenheffer, dated August 14, 2007, a true and correct copy of which is attached hereto as Exhibit C. 24. To the contrary, Charter failed to take any steps to abate the flooding issue, including any of the measures Charter took after the flooding of the Goldiner Property. See 1 17 above. 25. Charter then specifically instructed Ms. Koppenheffer to represent to all potential buyers of the Premises that expressed concerns about the grading of the property, and/or inquired as to whether the Premises was susceptible to water and/or flooding issues, that there would never be a water and/or flooding issue at the Premises. See Exhibit C. .t .t 26. In February 2005, Plaintiff Todd J. Tuttle and his Real Estate Agent, Justin Gourley, were first shown the Premises by Ms. Koppenheffer. See Exhibit C. 27. In early March 2005, during Mr. Tuttle and Mr. Gourley's second walk-through of the Premises, Mr. Tuttle expressed concern regarding potential water issues due to the Premises being at the foot of a hill on which most of the Dartmouth Green homes were located. See Exhibit C. 28. In response to Mr. Tuttle's concerns, and as instructed by her superiors at Charter, Ms. Koppenheffer made the representation to Mr. Tuttle and Mr. Gourley that Charter had taken all precautions so that water would never be an issue at the Premises. See Exhibit C; see also Statement of Justin Gourley, dated June 1, 2007, a true and correct copy of which is attached hereto as Exhibit D. 29. Despite Mr. Tuttle's stated concerns, at no point did Ms. Koppenheffer disclose to Mr. Tuttle that the Premises had previously suffered severe flooding in the basement, that the Goldiner Property next door had suffered a flood in its basement, or that the Premises was located at the bottom-point of Dartmouth Green where the majority of the development's water had been designed to empty onto. See Exhibits C and D. 30. In reliance upon Ms. Koppenheffer's statements, on March 7, 2005, the Tuttles executed a New Home Purchase Agreement ("Agreement") with Charter for the purchase of the Premises. A true and correct copy of the Agreement is attached hereto as Exhibit E. 31. Had Charter disclosed the water/drainage issues to the Tuttles prior to entering into the Agreement, the Tuttles would never have agreed to purchase the Premises, as the size and layout of the basement as extra living space was a major selling point with the Tuttles having two young children, and there were other homes available to the Tuttles within Dartmouth Green that were not 6 f? located in the flood zone that they would have chosen to purchase instead of the Premises. 32. Later in March 2005, Mr. Tuttle and Mr. Gourley met with Charter's Construction Manager, Mike Howell, to discuss the details of the construction of a retaining wall on the Premises, and when Mr. Tuttle specifically inquired as to whether there had ever been a water/drainage problem within Dartmouth Green, Mr. Howell stated that none of the homes in Dartmouth Green had ever experienced any water problems. See Exhibit D. 33. On April 13, 2005, at the closing of the Tuttles' purchase of the Premises, while executing flood zone documents, Mr. Tuttle asked the Charter representative at the closing, Kathleen Carr, whether the Premises had ever experienced a water or flooding problem in the past, and Ms. Carr expressly stated that it had not. See Exhibit D. 34. No written or other form of seller's disclosure was provided to the Tuttles by Charter at the closing, or at any time prior to the closing. 35. In reliance upon the statements made by Charter through its representatives (Ms. Koppenheffer, Mr. Howell and Ms. Carr), the Tuttles closed on the purchase of the Premises. Charter Denies Water/Drainage Issues, And Refuses To Implement Remedial Measures 36. In or about the summer of 2005, the Tuttles noticed that the sump pump in their basement would run continuously for days after a rain event. 37. After discussing their sump pump activity with their new neighbors, the Tuttles were informed for the first time that the Premises had flooded prior to the Tuttles' purchase, as well as the Goldiner Property next door. 38. As a buyer of a Charter property, the Tuttles were given a One-Year Limited Warranty that the Premises would be free from defects in materials and workmanship ("Warranty", a true and correct copy of which is attached hereto as Exhibit n. 39. In or about September of 2005, at the Tuttles' first scheduled Warranty inspection, Mr. Tuttle informed the Charter representative performing the inspection, Nate Patterson, that the Tuttles (1) had become aware of the prior flooding at the Premises before the Tuttles' purchase, (ii) had become aware of the prior flooding at the Goldiner Property next door, and (iii) were concerned regarding the constant running of the sump pump. 40. Despite the Tuttles' statements at the inspection, Mr. Patterson denied that any prior flooding had occurred at the Premises or at the Goldiner Property, and Charter refused to implement any remedial measures requested by the Tuttles like the ones previously implemented at the Goldiner Property. See 1 17 above. 41. Also during the first scheduled Warranty inspection, the Tuttles pointed out to Mr. Patterson various items in the house that needed to be repaired or replaced under the Warranty, and Mr. Tuttle prepared a written list of these items and provided them to Mr. Patterson as written notification to Charter thereof. A true and correct copy of the written list of Warranty items prepared by Mr. Tuttle during the first scheduled Warranty inspection, and given to Charter as written notification thereof, is attached hereto as Exhibit G. 42. In or about April 2006, during the second scheduled Warranty inspection, the Tuttles once again notified Charter of their concerns regarding the water/drainage issues at the Premises, and again requested that Charter implement remedial measures to correct these problems. 43. The Charter representative performing the inspection told the Tuttles that he would look into the Tuttles' concerns and get back to them. 44. In or about July 2006, the Charter representative informed the Tuttles that Charter would not implement any of the requested remedial measures regarding water issues, but that it would install a battery back-up system to their existing sump pump at the Tuttles' expense. COUNTI Fraud/Intentional Misrepresentation/Nondisclosure 56. Paragraphs 1 through 55, above, are hereby incorporated by reference. 57. Charter's intentional misrepresentations and/or nondisclosures regarding past water issues at the Premises, at the Goldiner Property located next door to the Premises, and the water/drainage issues within Dartmouth Green in general, were material to Plaintiffs' purchase of the Premises. 58. The multiple misrepresentations and/or nondisclosures made by Charter to the Tuttles were made with knowledge of their falsity or with reckless disregard as to whether the statements were true or false. 59. Charter's misrepresentations and/or nondisclosures to the Tuttles were made with the intent of misleading the Tuttles into relying upon them. 60. Plaintiffs' justifiably relied upon the multiple misrepresentations and/or nondisclosures made by Charter during the negotiation of, agreement to, and closing of the purchase of the Premises. 61. Plaintiffs were damaged as a result of their reliance upon Charter's misrepresentations and/or nondisclosures. 62. Plaintiffs' resulting damages were proximately caused by such reliance. 63. In its conduct, Charter acted with malice, vindictiveness, willfulness, recklessness, and/or a wholly wanton disregard of the rights of Plaintiffs. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, and to award Plaintiffs their actual damages in an 11 amount in excess of $35,000.00, as well as punitive damages, plus interest, costs, and all other relief to which Plaintiffs are entitled. COUNT II Negligent/Reckless Misrepresentation 64. Paragraphs 1 through 63, above, are hereby incorporated by reference. 65. As sellers of realty, Charter owed a duty of disclosure/candor to Plaintiffs, and all potential buyers of the Premises, to disclose all known material defects, or potential defects, of the Premises. 66. Charter made misrepresentations and/or nondisclosures of material facts to Plaintiffs when they ought to have known of their falsity. 67. Charter's misrepresentations and/or nondisclosures were made with the intent to induce Plaintiffs to act on them. 68. Plaintiffs justifiable relied upon Charter's misrepresentations and/or nondisclosures, and were damaged as a result thereof. 69. As such, Charter breached its duty of disclosure/candor owed to Plaintiffs when it made statements, and/or failed to disclose material facts, regarding the Premises with the intent to induce Plaintiffs to act on them. 70. Charter's breach of its duties directly and proximately caused the damages suffered by Plaintiffs. 71. Charter's conduct was outrageous and/or egregious due to Charter's reckless indifference to the rights of Plaintiffs. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, 12 • •, Inc. and Charter Homes Building Company, and to award Plaintiffs their actual damages in an amount in excess of $35,000.00, as well as punitive damages, plus interest, costs, and all other relief to which Plaintiffs are entitled. COUNT III Violation of Real Estate Seller Disclosure Law 72. Paragraphs 1 through 71, above, are hereby incorporated by reference. 73. The Real Estate Seller Disclosure Law, 68 Pa.C.S. § 7301, et seq ("RESDL"), requires that, when selling real estate, the seller shall not make any representations that the seller or the agent for the seller knows or has reason to know are false, deceptive or misleading and shall not fail to disclose a known material defect. 68 Pa.C.S. § 7308. 74. Charter's conduct is in violation of the RESDL. 75. Plaintiffs' have been damaged as a result of Charter's violation of the RESDL. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, and to award Plaintiffs their actual damages in an amount in excess of $35,000.00, plus interest, costs, and all other relief to which Plaintiffs are entitled. COUNT IV Violation of Unfair Trade Practices and Consumer Protection Law 76. Paragraphs 1 through 75, above, are hereby incorporated by reference. 77. The Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-1, et seq ("UTPCPL"), prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. 73 P.S. 201-3. 13 78. Under the UTPCPL, trade or commerce includes the advertising, offering for sale, sale or distribution of any services and any property, tangible or intangible, real, personal or mixed. 73 P.S. 201-2. 79. Charter's conduct is in violation of the UTPCPL, and Plaintiffs' have been damaged as a result thereof. 80. Plaintiffs are entitled to be awarded treble damages, as well as attorney's fees, costs and expenses, and any additional relief the Court deems necessary or proper. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, and to award Plaintiffs treble their actual damages in an amount in excess of $35,000.00, plus interest, costs, attorney's fees, and all other relief to which Plaintiffs are entitled. COUNT V Breach of Contract 81. Paragraphs 1 through 80, above, are hereby incorporated by reference. 82. Page 1 of the Agreement states that Charter agrees to sell the Tuttles "Unit (Lot) 53, ... together with a Home, built ... by [Charter] in a good and workmanlike manner ...." See Exhibit E. 83. Charter has failed to provide the Tuttles with a home that was built in a good and workmanlike manner. 84. Charter's conduct constitutes a breach of the Agreement, and the Tuttles have been damaged thereby. 14 M WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, and to award Plaintiffs their actual damages in an amount in excess of $35,000.00, plus interest, costs, and all other relief to which Plaintiffs are entitled. COUNT VI Breach of Warranty 85. Paragraphs 1 through 84, above, are hereby incorporated by reference. 86. The Tuttles provided Charter with timely notification, in writing, of all Warranty- covered defects regarding the Premises. 87. The Tuttles provided Charter with access to the Premises during normal business hours to inspect and repair the reported defects. 88. Charter refused to correct all defects covered by the Warranty. 89. Charter's conduct constitutes a breach of the Warranty between Charter and Plaintiffs, and the Tuttles have been damaged thereby. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, and to award Plaintiffs their actual damages in an amount in excess of $35,000.00, plus interest, costs, and all other relief to which Plaintiffs are entitled. 15 COUNT VII Rescission 90. Paragraphs 1 through 89, above, are hereby incorporated by reference. 91. As the Agreement between Charter and Plaintiffs is based upon fraud, and/or material misrepresentations made by Charter to Plaintiffs, the Agreement should be rescinded. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to exercise the equitable doctrine of rescission thereby making Plaintiffs whole again by setting aside their purchase of the Premises, plus award their actual damages in an amount in excess of $35,000.00 for improvements made to the Premises, and expenses resulting from the flooding, interest, costs, and all other relief to which Plaintiffs are entitled. DEMAND FOR JURY TRIAL Plaintiffs demand a jury trial of all issues triable before a jury. 16 4 Respectfully Submitted, .i ` Jeffrey M. McCormick, Esquire Pa. Attorney I.D. No. 95049 James Smith Dietterick & Connelly LLP Mail: P.O. Box 650 Hershey, PA 17033 Courier: 134 Sipe Avenue Hummelstown, PA 17036 Phone: (717) 533-3280 Facsimile: (717) 533-2795 Attorneys for Plaintiffs Todd J. Tuttle and Jennifer L. Tuttle 17 VERIFICATION I, Todd J. Tuttle, hereby aver and state that I have read the foregoing document, which has been drafted by counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. y Todd J. Tuttle )? X??bj-? A STATEMENT OF KEI MERLY HOLL I, Kimberly Holl, of 5645 Charlton Way, Mechanicsburg, Pennsylvania, have been a home owner and resident in the Dartmouth Green Development ("Dartmouth Green") for more than six (6) years, and have lived down the street from the Todd and Jennifer Tuttle's house since March of 2004. I am also the current President of the Home Owners Association for the Dartmouth Green. Both of the homes I have purchased within Dartmouth Green were builvand sold by Charter Homes at Dartmouth Green, Inc. ("Charter Homes"). During the time I have lived in Dartmouth Green, it has been common knowledge among the residents that Charter Homes' "spec house", which has an address of 5620 Charlton Way, Mechanicsburg, Pennsylvania, and was subsequently purchased by Todd and Jennifer Tuttle (the "Spec Home" or "Premises"), had severe water and/or drainage issues. In fact, a natural spring runs through Dartmouth Green, and Charter Homes designed the development so that the water that runs off the majority of homes was directed to a swale, which then emptied out atihe Spec Home, which rests on the first flat ground at the bottom of a hill. During negotiations for the purchase and construction of my current home, I had several discussions with Charter Homes representatives Randy Grimm, Jim Vance and Mike Howell, in which the water/drainage problems at the Spec House was a completely open issue and concern. More particularly, because of the close proximity of our proposed new home to the Spec House, my husband and I were concerned that the water and/or drainage issues would spill over to our property. However, Charter Homes assured us that they would implement all necessary measures during construction so that our home would not suffer the same water/drainage issues as those at the Spec House. .1 In or about the Fall of 2004, after a fpitly iiitfickt rain storm, I saw that Charter Homes was having water pumped out of the basement o"he Spec House to a drainage grate on the street. In or about the summer of 2005, after Todd and Jennifer Tuttle had purchased the Premises, I asked the Tuttles if they knew about the persistent water/drainage issues at the Premises, or that Charter Homes had to'have water pumped out of their basement only a few months previous to their purchase of the Premises. The Tuttles said that Charter Homes never disclosed those facts to them prior to their purchase. q 41AW1 Ki berly H Date:( 2 ?x?,Jb?-? ?3 ti STATEMENT OF SHERRY GOLDINER I, Sherry Goldiner, of 5610 Charlton Way, Mechanicsburg, Pennsylvania, have been a home owner and resident in the Dartmouth Green Development ("Dartmouth Green") since February of 2003, and I live next door to Todd and Jennifer Tuttle, whose house has an address of 5620 Charlton Way, Mechanicsburg, Pennsylvania (the "Premises" or "Spec House"). The home I purchased within Dartmouth Green was built and sold by Charter Homes at Dartmouth Green, Inc. ("Charter Homes"). Prior to the Tuttles' purchase of the Premises, Charter Homes built a Spec House on the property and put it up for sale. In or about the fall of 2004, while it was still vacant and for sale, I saw the vehicles of several Charter Homes employees in the driveway of the Spec House after a fairly significant rain event. Out of curiosity, I walked over to the Spec House, went down the basement stairs, and saw Jim Vance and Mike Howell of Charter Homes pumping water out of the totally submerged basement. Mr. Vance and Mr. Howell were visibly upset that I had witnessed the flooded basement, and told me to leave the Spec House immediately. I would have informed the Tuttles of the flood that I witnessed at the Spec House, but I did not see them prior to their purchase of the Premises. SherryG di r c.• Date: /0'? (,?; ?,4 \ 1 STATEMENT OF DANICA KOPPENHEFFER I, Danica Koppenheffer, of Harrisburg, Pennsylvania, have been a Real Estate Sales Professional for the past five (5) years, and have been employed by Traditions of America Home Builders for the past three (3) months. Previous to my current position with Tradition of America, I was employed by Charter Homes at Dartmouth Green, Inc. ("Charter Homes") for approximately three and a half (3 '/2) years as a Neighborhood Sales Manager. During my employment with Charter Homes, I was asked to present for sale certain lots located in the Dartmouth Green development in Mechanicsburg, Pennsylvania. One of the lots I was asked to sell was a premises known as 5620 Charlton Way, Mechanicsburg, Pennsylvania (the "Premises"), which was also being shown an "Inventory Home" in the Dartmouth Green development. In or about the Fall of 2004, Charter Homes informed me that there had been a flood in the basement of the Premises, but that it had pumped out all the water, and had taken all necessary remedial measures to correct the problem. Further, Charter Homes instructed me to convey to all potential buyers of the Premises that may inquire about the grading of the property, or as to whether the Premises was susceptible to water and/or flooding issues, that there would never be a water and/or flood problem at the Premises. In or about February of 2005, 1 first presented the Premises to Todd Tuttle and his Real Estate Agent, Justin Gourley. In March of 2005, I presented the Premises to Mr. Tuttle and Mr. Gourley a second time, and after Mr. Tuttle expressed some concerns about potential water and/or flooding issues due to the grading of the property, I assured him and Mr. Gourley that Charter Homes had taken all precautions so that water would never be an issue with the ti 11 Premises. This was the representation that Charter Homes instructed me to give to all potential buyers of the Premises. Further, I did not specifically disclose to Mr. Tuttle that the Premises had previously suffered flooding in the basement. 29641;e? Date: Danica Koppenhe fer cxti,6t-? D STATEMENT OF JUSTIN GOURLEY I, Justin Gourley, have been a licensed Real Estate Agent for the past ten (10) years, and have been employed by Keller Williams Realty for just over a year. Prior to that, I was employed by The Homestead Group, Inc. for four (4) years. During my employment with The Homestead Group, Inc., I served as the Real Estate Agent for Todd and Jennifer Tuttle during their home search in the early part of 2005, and during the negotiations for, and ultimate purchase of, the premises known as 5620 Charlton Way, Mechanicsburg, Pennsylvania (the "Premises"). In or about February of 2005, prior to the Tuttle's purchase of the Premises, Todd Tuttle and I were first shown the Premises by Danica Koppenheffer, a Charter Homes representative. The Premises was being offered for sale by Charter Homes at Dartmouth Green, Inc. as a Spec Home that had been recently built but never occupied. In March of 2005, Todd Tuttle and I met Ms. Koppenheffer at the Premises for a second look, and after Mr. Tuttle expressed some concerns about water and/or flooding issues due to the grade of the surrounding land, Ms. Koppenheffer assured us that water would never be an issue with the Premises. Mr. Tuttle stated that he would be interested in purchasing the Premises if Charter Homes agreed to build a retaining wall to help with the grading. Charter Homes agreed, and a few weeks before the Closing on the Premises, Mr. Tuttle and I met with Ms. Koppenheffer and Charter Homes's Construction Manager, Mike Howell, to go over the construction and design of the retaining wall. During such meeting, Mr. Tuttle specifically asked Mr. Howell if any of the homes in the Dartmouth Green development had experienced any flooding issues in the past, and Mr. Howell stated to Mr. Tuttle and me that none of the homes in Dartmouth Green had ever experienced any water problems. In April 2005, at the Closing of the purchase of the Premises, while signing flood zone papers, Mr. Tuttle asked the Charter Homes representative at the Closing whether the Premises had ever experienced a water or flooding problem in the past. The Charter Homes representative stated to both Mr. Tuttle and me that it had not. In sum, on three separate occasions during the showing, negotiating and Closing of the Premises, Mr. Tuttle, while in my presence, specifically asked three different representatives of Charter Homes whether the Premises and/or the homes in the Dartmouth Green development had experienced water or flooding issues in the past, and all three Charter Homes representatives stated that there had never been any water problems. Jus K Gourley Date: G/ / /d 7 t NEW HOME PURCHASE AGREEMENT By this Agreement, dated the 7th "- of March 2005 Todd J. Tuttle and Jennifer L. Tuttle (the "Buyer") with an address of 957 Bagside Court. Greenwood, IN 46143 agrees to purchase and Charter Homes at Dartmouth Green. hic.. a PeonsvI__A corporation --(the "Seller") with an address of 114 Foxshire Drive. Lancaster. PA 17601 agrees to sell Unit (Lot) 53, a Planned Community as established kv the filing of the Declaration of Covenants. Restrictions. Easements and Establishment of Elomeo%uers Association for Dartmouth Green, a Planned Community in Hampden Township, Cumberland County. Penmsylvania ("Declaration") of record in the Office of the Recorder of deeds in and for Cumberland County, Pennsylvania in Miscellaneous Book 670. Page 309, as amended., 1070 Newbold Lane. Mechanicsburg. PA 17050 (the "Property"), together with a Home, built or to be built by Seller in a good and wore manner in accordance with the hot plan and options as set forth on the SELECTION SHEET attached to this Amt for the TOTAL PURCHASE PRICE of- ........... I ...................... I ...................................... ............................................. $360.000.00 1. EARNEST MONEY DEPOSIT. To guarantee performance by Buyer of Buyer's obligations in this Agre t, Buyer has paid an Earnest Money Deposit in the amount of :.................. $5.000.00 to SELLER. Seller will hold and disburse the Earnest Money Deposit in accordance with all applicable laivs. 2. OPTION/CUSTOM CHANGE DEPOSITS. If Buyer changes or options are incorporated into the Home Buyer agrees to pay OPTION/CUSTOM CHANGE DEPOSITS to Seller As follows: a. Prior to or with this Agreement Buyer has paid ...................... ....... $0.00 b. On or befin the Release Date, Buyer will pay OPTION/CUSTOM CHANGE DEPOSITS in scoonlance with the SELECTION SHEET and any CUSTOM CHANGE REQUESTS agreed to by Buyer and Seller. If Buyer does not complete Settlement for any now (exc;e)t default by Seller), the OPTION/CUSTOM CHANGE DEPOSITS will be retained by Seller, not as a penalty, but to reimburse Seller for the oat of CUSTOM CHANGE REQUESTS and/or OPTIONS incorporated MtD the Hamm. At Settlement, Seller will credit Buyer in the amount of the total of OPTION/CUSTOM CHANGE DEPOSITS paid by Buyer to Seller. 3. The estimated SETTLEMENT DATE is .................................................... 418105 based on a RELEASE DATE of ................................................................. 3/21/05 The RELEASE DATE is that dale on which Buyer executes the RELEASE TO CONSTRUCTION ADDENDUM to this Amt, releasing all contingencies to this agreement. Seller will establish a final SETTLEMENT DATE on the RELEASE DATE. Printed: 03107/2005 1 Initials Date 7 QS 4. CONTINGENCIES MORTGAGE FINANCING CONTINGENCY. This Agreement is contingent upon Buyer securing, on or before 14 days from the date of this Agreement ("Commitment Date"). a'Mortgage Loan Commitment in an amount and with such terms as are acceptable to both Buyer and Seller. If Buyer does not secure such Mortgage Loan Commitment on or before .the Commitment Date Seller mad terminate this Agreement, at which time any Earnest Money Deposits and/or ` Option/custom Change Deposits paid by Buyer grill be returned to Buyer and neither Buyer nor Seller will have any further obligations to the other under this Agreement: Buyer is swam and acknowledges, that; if Buyer three RELEASE TO CONSTRUCTION ADDENDUM, releasing all contingencies to this agrtrcment including any Mortgage Financing Contingeaty and/or Saleof Property Contingency, or if Buyer secures a Mortgage Loan Commitment which is-lam' withdrawn for fa&w to meet conditions of the commitment, such as failure to sell and/or to complete settlement on property which Buyer currently owns, Buyer will still be obligated to complete Settlement In the event that Buyer does not complete settlenuft after executing the RELEASE TO CONSTRUCTION ADDENDUM,, Buyer will be in default. 5. RECEIPT AND ACKNOWLEDGMENT OF DOCUMENTS AFFECTING PROPERTY OWNERSHIP. Buyer acknowledges iwdpt of the following docu and inf'ormsdog regarding ownership of the Property; The Public Offering Statement applicable.to the Property, including copies of the recorded `"Declaration of Covenants. Restrictions, Easements and Establishment of Homeowners Association for Dartmouth Green, a Planned Community in Hampden Township. Cumberland County, Pemtsylvania" (the "Declaration"). recorded Amendments to the Declaration. and the actual or proposed budget and homeowner assessments of the Dartmouth Green Homeo«aters Association. Property ownership in Dartmouth Green is subject to the provisions of all documents of record including, but not .limited to, the recorded Declaration, as amenda and the recorded Subdivision plan(s) (referenced in the Public Offering Statement). Buyer acknowledges that Buyer has lad the opportunity to understand all of the provisions of these documents (including, but not limited to, easements and restrictions a bering the Property and its use, covenants naming with the land, and obligations which attach to Property ownership); Buyer acknowledges that the Property will be conveyed to Buyer subject to all of the rights and duties as established by documents of record; and Bayer agrees to accept theneaponsibilities of ownership as stated in all documents of record 6. CONSTRUCTION OF HOME. Seller will have the sole right to make all dxi x= regarding the construction of the Horse and the development of the Property including, but not lmritad to, establishment of and changes in grade, removal of trees (if arty are present), plant of utility lines and equipment, location and design of driveways, walks, landscaping and drainage (including swalm), and all items of a siniii nature. Seller small solely determine which trees are to be removed for placement and construction of On home, driveway and other improvements, including access: Seller will not be required to restore any trees removed. Seller does not represent nor warrant that say casting trees will survive. [Remainder of this page intandonally left blank] Printed: 03107/2005 2 Initials _V' Date 3?7r?OS t 7. DESIGN DAPROVEMMUS. As pact of a c ontinning program of home designs improvements, the Plans and Specifications are subject to change in accordance with any product changes provided to the Buyer and the terms of this Agreement The Home may dffa from any Model Home or irdormation in sales materials (including brochures and displays) as a result-ot but only as- a result of amendments or revisions to the Plans and Specifications and normal construction tolerances and variances. 8. FIXTURES NOT INCLUDED IN THE SALE, This sale and purchase does not include any furniture, furnishings, decorator wall and floor dings, light fix xn% landscaping, and items of a similar nature unless specifically stated in the Specifications and/or on the SELECTION SHEET attached: to this Agreement 9. ACCESS TO PROPERTY. A HOME CONSTRUCTION SITE IS A HAZARDOUS AREA If Buyer enters the Property prior to Settlement, Buyer agrees to indemnify and hold Seller hatmless for any resulting bodily injury or property damage. 10. NO UNAUTHORIZED WORK. Because the Property and the Horne are property of the Seller until settlement, no unauthorized work may be done in the Home or an the Property. Unauthorized work done for or by Buyer will be removed by Sella, at the expense of the party who did, or attempted tD do, unauthorized work. 11. LOSS PRIOR TO SETTLEMENT. Except for loss or damage resulting from Buyer entering the Property prior to Settlement, or resulting, directly or indirectly, firom work by or for Buyer which Seller did not authorize, Seller will be responsible for any loss or damage t0 the Property prior to Settlement 12. COMPLETION OF CONSTRUCTION. Settlement will occur, without holdback or escrow of any portion of the Purchase Price, when a Certificate of Occupancy or a Use and Occupancy Certificate a issued for the Home on the Property. A minor amount of work, not afliecting the livability of dire Home, may not be commplete at time of Settlement. Seller will remain obligated to complete any such incomplete work following Settlement, Ii; because of incomplete work, Buyer's mortgage loan lender requires funds to be placed in escrow as a condition of providing mortgage financing, any such fimds shall be provided by and deposited in such escrow by Buyer. 13. WARRANTY. Seller has provided tU Buyer, prior t D execution of this Agreement, Seller's warranty applicable to the construction ofthe Home ("Your Warranty" together with the "One Year Limited Warranty" and "Performance Standards" which are collectively relar+ed to as the "Now Home Warranty") contained within the "Post Setdemmf potion of the Building Your New Home Manual. The teams and conditions of the "New Home Warranty" are incorporated in this Agreement by reference and made part of this Agreement. Buyer acknowledges that Buyer has tread, understands, and agrees to the terms of the New Home Warranty including the waivers of implied warranties of habitability, reasonable workmanshlp, merchantabr'!r'ty, and fitness for purpose. Buyer expressly acknowledges and agrees that Buyer accepts the New Home Wmnu* as a fair, complete, and clear warranty of do obligations of Seller for the improvement of the Property and the construction of the Horne in ac c adance with the terms and conditions of this Agreement. Buyer accepts the New Hone Warranty in satisfaction o4 and in lieu of, any and all other warranty or warranties, whether express or implied, relating to the construction of the Haase. There are no warranties which extend beyond the New Home Warranty contained within the "Post Settlement" portion of the Building Your New Home Manual. The dispute resolution provisions of this New Hoare Purchase Agreemient as set faith in Section 24 of this New Home Purchase Agreement shall apply to and govern the determination and resolution of any and all disputes and/or claims pursuant to the-1 x mof the New Home Warranty. The provisions of Section 24 of this New Home Purchase Agreement shall survive settlement of the purchase of the Property. BMW Initials 14. NEW HOME ORIENTATION. Prior to Settlement, a reprove of the Seller will go through the Home with Buyer, together with no more than one additional individual, for an Orientation of the Home at which time the Seller's representative will acquaint Buyer with the Home and its features, answer questions, and verify that the Home has been constructed in accordance with the terms of this Agreement. Printed: 03/07/2005 3 Timbals Date ?117/OS z^?4?olc //4 'S. T7AYP. ?/7 /n T 15. SETTLEMENT. At Settlement a. Seller will convey title to and deliver possession of the Property to Buyer by a Special Wauenty Deed, conveying good and marlomble We. (houtable by a licensed, title insncance cooky), free and clear of all liens and encumbrances of record except easements, conditions, covenants and restrictions existing arthie time-ofsettlement. b. Seller will provide any and all Cextificate(s) of Obey or Use and Occupancy Certificate(s) which are required tc be issued by any and all governmental entities having jurisdiction of such ceti5cates c. All Transfer Taxes due on this sale and purchase will be paid one hahf (1/2) by Seller and one-half (1/2), by Buyer. Property taxes and homeowner association ash, if any, affecting this Property will be pry mtA with each party paying such party's share.: d. Seller will prepare the deed and any releases of mortgages, liens or judgments against the Propeity (Seller will not pay for the preparation of these documents by anyone else) and Seller will pay for the recording of any such releases. e. Buyer will be responsible for and pay my charges of my mortgage lender providing funds m Buyer, any charges Of the title insurer insuring Buyer's title (including. title march, title insurance, endorsements, and guy as-built or other survey), and any charges of the person or firm conducting Settlement (including costs of recording the deed and mortgage, any settlement fees and disbursement charges). 16. RELEASE OF LIENS. Seller will not be obligated to &mish any release of liens signed by the moors, subcontractors or suppliers providing labor or materials for the construction of the Home. However, Seller represents and warrants to Buyer (and to any entity insuring Buyer's title to the Property) that no claims :will be asserted against Buyer or the Property by any contractor, srbconha lar or supplier with whom Seller has connected and who has provided labor or materials for the construction of the Home, and this warninty shall remain the Seller's obligation after Settlement (survive Settlement) 17. RADON GAS. Seller makes no representation regarding the absence or prince of radon gas on the Property. Buyer agrees that Seller will not be responsr'ble, now or in the futurt, for arty costs associated with the testing and/or mitigation of radon, nor for any losses or claims, including injuries, which may arise f can the presence of radon. 18. MOLD. Seller has provided Buyer (as a part of the ABuilding Your New Home@ Manual in the section entitled "Special Conditions"), information regarding the occurrence of Mold in residential dwellings and has i Buyer of Seller's construction procedures and specifications regarding mold avoidance. Buyer has reviewed Seller's mold avoidance constr action procedures and specifications, and Buyer agrees that Seller will not be responsible for any damages caused by mold occurring on the Property, including but not be Iimited to property damage, personal injury, adverse health effects, and any consequential damage. 19. BUYER DEFAULT. Seller's performance of Seller's obligations pursuant to the terms and conditions of Amt are undertaken and performed in reliance upon them; rese-ati r s, warranties and covenants of Buyer set forth in this Agreement. The remedies of Seller fbr default by Buyer shall not, in any way, be limited and may include, but shall not in any way be limited to, mention of Earnest Money Deposits and Option/Custom Change Deposits paid to Seller as Liquidated Damages and not as a penalty. 20. SELLER DEFAULT. Seller will not be liable for failure to perfi m this Agreement due W factors beyond settees control including, but not limited to force majeu re, war, civil unrest, actual or economic unavailability of labor and/or materials or unavailability of land, site improvement work, utility services, permits or approvals to be obtained by others. In the event drat Seller defaults in setter's obligations under this Agoeeymeut, all Earnest Money Deposits and Option/Custmn Change Deposits, if any, will be returned to Buyer and Seller will pay to Buyer the amount of any mortgage or title costs which Buyer has incurred for this purchase including title insunnioe: application, mortgage application, appraisal, and fees such as rate lock -in fee, and this Agreement will be void, and neither party will have any finrther obligation to the other. Buyer may not sue Seller for specific performance of Sellers obligations. 21. TIME OF ESSENCE. Time is of the essence of all obligations of the parties to this Agreement. Printed: 03/07/2005 4 Initials Date! ?Q? t. 22. NOTICES. Notices will be considered given upon delivery (provided a signed receipt or notarized affidavit of delivery is obtained if hand delivered or delivered by any delivery service) or three (3) days after deposit with the US Postal Service first class mail postage prepaid, return receipt requested, to the adds ss of the recipient as stated in this Agreement. 23. ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer, regarding the subject matter of this Agreement and there are. no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this umisaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, aimending, adding to or changing the terms of this Agreeement. No custom or prior or other dealings behveert the parties will contradict, add to, or modify the terms of this AgreemeriL Seller. is not responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, theirrespective heirs, personal representatives, successors and assigns. 24. DISPUTE RESOLUTION. In the event of an unresolved dispute or a claim relating to this New Home Purchase Agreement, the rights and obligations hereto, or any other claims or :causes of action relating to the performance of either party arising out o& or relating to, this Agreement or the breach thercckC either.party may elect to submit the dispute or claim for decision in accordance with the construction Industry Arbitration Rules of the American Arbitration Association by filing notice of the demand for arbitration in writing with the other party to this Agreement and with the American Arbitration Association, within a reasonable time after ft dispute has arisen. The award rendered by the arbitrators shall be final, and judgment may be entered upon it iwac voidance with the applicable law in any Court having jurisdiction . thereof. Alternatively, either party may institute an action or proceeding in the Court of Common Pleas of the county in which the Property is located and in the event of such action or pig, the non-prevailing party in the adjudication of any Preliminary Objections, judgmment on the pleadings or summary judgment (including partial summary judgment), shall pay the prevailing party's attorneys' costs incurred in litigating such Preliminary Objections, judgment on the pleadings or summary judgment. 25. REAL ESTATE BROKERS DISCLOSURES REQUIRED PURSUANT TO REAL ESTATE LICENSING ACT AND REGULATIONS: Buyer is represented by a real estate licensee who is a Buyer Agent or a Designated Agent of a real estate firm acting as a Dual Agent. No real estate agent has any authority to act of behalf of the Seller. The real estate agent is required by Pemtsylvania law to inform you that "am sales agreement must contain the zoning classification of a property except in cases where the property (or each parcel thereof, if subdividable) is coned solely or primarily to permit single family dwellings" and "the failure of the agreement of sale to contain the zoning classification of the property shall render the agreement voidable at the option of the buyer and, if voided, deposits tendered by the Buyer shall be returned to the buyer without a requirement of court actionn." The Real Estate agent is also required by Pennsylvania law to advise you that "access to a public road may require issuance of a highway occupancy permit from the Department of Transportation." Seller will obtain any required highway occupancy permit as a part of the construction of the Home. A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate licensee owing to fraud, misrepresentation. or deceit in a real estate transaction and who have been unable to collect the judgment after exhausting all legal and equitable remedies. For complete details about this Fund. call (717) 783-368. [Remainder of this page intentionally left blank] Printed: 03/07/2005 5 Initials ? Date 5/'7/0-Y Trniiiala G7t1 ?, Date .7 J--, / n - This Agreement is not binding on Seiler until ratified by the President or a Vice President of Charter Homes at Dartmouth Green, Inc. f hit.: By signing this Amt, BUYER agrees to be bound by the tT15? t :BUYER BUINER By signing this Agreement, SELLER4W= to be bound by the terms of this Agreement. Charter Homes at Dartmouth Green, Inc., a Pennsylvania corporation By. Assistant Vice President Ratified By President or We President Printed: 03/07/2005 6 Initials _ Date 3`?/? Initials 44 Date 3/?ioc Cx ?' b'+ F 1. COVERAGE ON HOME EXCEPT CONSUMER PRODUCTS. CHARTER HOMES (hereafter referred to as "CHARTER") expressly warrants to the Buyer (hereafter referred to as "OWNER") of a Property and Home from CHARTER that, for a period of one (1) year after the date that the OWNER completes Settlement with CHARTER of the purchase of the Property on which the Home is built, the Home will be free from defects in materials and, workmanship due to noncompliance with the standards set forth in the Performance Standards in effect when the OWNER received the Homeowners Manual. The Homeowners Manual is hereby made a part of this warranty. 2. COVERAGE ON CONSUMER PRODUCTS. For purposes of this Limited Warranty, the term "Consumer Products" means all appliances, equipment, and other items which are Consumer Products for the purposes of the Magnuson-Moss Warranty Act (15 USC, sections 2301-2312) and which are located in the Home on the commencement date of the warranty. CHARTER DOES NOT WARRANT ANY SUCH CONSUMER PRODUCTS AND CHARTER EXPRESSLY EXCLUDES ANY IMPLIED WARRANTIES. CHARTER hereby assigns to OWNER all rights under manufacturers' warranties covering Consumer Products. OWNER should follow the procedures in the manufacturers' warranties if defects appear in these items. 3. CHARTER'S OBLIGATIONS. If a covered defect occurs during the one-year warranty period which defect was only caused by CHARTER or its employees, agents or subcontractors, CHARTER agrees to repair, replace, or pay OWNER the reason- able cost of repairing or replacing the defective item. CHARTER'S total liability under this warranty is limited to the Purchase Price paid by OWNER to CHARTER for the Property. The choice among repair, replacement, or payment is CHARTER'S. Any steps taken by CHARTER to correct defects shall not act to extend the terms of this warranty. All repairs by CHARTER shall be at no charge to the OWNER and shall be performed within a reasonable length of time. 4. OWNER'S OBLIGATION. Owner must provide normal maintenance and proper care of the Home according to this war- ranty and the warranties of manufacturers of Consumer Products. CHARTER must be notified in writing, by the OWNER, of the existence of any defect before CHARTER is responsible for the correction of that defect. CHARTER must receive written notice of a defect prior to the expiration of the warranty on that defect. No action at law or in equity may be brought by OWNER against CHARTER for failure to remedy or repair any defect about which CHARTER has not received timely notice in writing. OWNER must provide access to CHARTER during normal business hours to inspect the defect reported and, if necessary, to take corrective action. 5. INSURANCE. In the event CHARTER repairs or replaces or pays the cost of repairing or replacing any defect covered by this warranty for which the OWNER is covered by insurance or a warranty provided by another party, OWNER must, upon request of CHARTER, assign the proceeds of such insurance or other warranty to CHARTER to the extent of the cost to CHARTER of such repair or replacement. 6. CONSEQUENTIAL OR INCIDENTAL DAMAGES EXCLUDED. CONSEQUENTIAL OR INCIDENTAL DAMAGES ARE NOT COVERED BY THIS WARRANTY. 7. OTHER EXCLUSIONS. The following additional items are not covered by this limited warranty: a) Defects in any item that was not part of the original Home as constructed by CHARTER. b) Any defect caused by or worsened by any modification, addition or improvement made by anyone other than CHARTER to the Home after the date of settlement. 0 z Y r S ro y z Y C: 7 z Building Your New Home • Copyright ®1999, 2004, 2005 Version 3.24 4/22/05 c) Any defect caused by or worsened by negligence, improper maintenance, lack of maintenance, improper action or inaction, willful or malicious acts by any party other than CHARTER, its employees, agents, or subcontractors. d) Normal wear and tear of the Home or Consumer Products in the Home. e) Loss or damage caused by acts of God, including but not limited to fire, explosion, smoke, water escape, changes which are not reasonably foreseeable in the level of underground water table, glass breakage, windstorm, hail, lightning, falling trees, aircraft, vehicles, flood, and earthquakes. Q Any defect or damage caused by changes in the grading or drainage patterns or by excessive watering of the ground of the OWNER'S property or adjacent property by any party other than CHARTER, its employees, agents, or subcontractors. g) Any defect which does not cause actual loss or damage. h) Any loss or damage which arises while the Home is being used primarily for nonresidential purposes. i) Any damage to the extent it is caused or made worse by the failure of anyone other than CHARTER or its employees, agents, or subcontractors to comply with the requirements of this warranty or the requirements of warranties of manufactur- ers of appliances, equipment, or fixtures. j) Any defect or damage which is covered by a manufacturer's warranty that has been assigned to OWNER under para- graph 2 of this Limited Warranty. k) Failure of OWNER to take timely action to minimize loss or damage and/or failure of OWNER to give CHARTER timely notice of the defect. 1) Bodily injury, damage to personal property or damage to real property which is not part of the Home which was included in the Purchase Price paid by OWNER to CHARTER for the Property. 8. DISPUTE RESOLUTION. In the event of an unresolved dispute or a claim relating to this Warranty, either OWNER or CHAR- TER may elect to submit the dispute or claim for decision in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association by filing notice of the demand for arbitration in writing with the other party and with the American Arbitration Association within a reasonable time after the dispute has arisen. The award rendered by the arbi- trators shall be final, and judgment may be entered upon it in accordance with the applicable law in any Court having juris- diction thereof. Alternatively, either OWNER or CHARTER may institute an action or proceeding in the Court of Common Pleas of the county in which the Property is located and in the event of such action or proceeding, the non-prevailing party in the adjudication of any Preliminary Objections, judgment on the pleadings or summary judgment (including partial sum- mary judgment), shall pay the prevailing party's attorneys' costs incurred in litigating such Preliminary Objections, judgment on the pleadings or summary judgment. 4. This Warranty is in lieu of any and all other warranty or warranties, whether express or implied including implied warranties of habitability, reasonable workmanship, merchantability, and fitness for purpose. There are no warranties which extend beyond this Warranty. This Warranty is in lieu of the implied warranty of reasonable workmanship. The implied warranty of reasonable workmanship is a warranty which Pennsylvania courts have held means that the workmanship is reasonable under the circumstances meeting the standards of workmanlike quality prevailing at the time and place of construction. This Warranty is in lieu of the implied warranty of habitability. The implied warranty of habitability is a warranty which Pennsylvania courts have held means that the home is free of any defect which is a major impediment to habitation of the home. The determination of whether the construction of a home breaches either of these implied waivers is not objectively measurable and is to be determined in litigation on a case-by-case basis. By waiving these implied warranties, Buyer agrees that the terms and conditions of this Warranty, and not the implied warranties of habitability or reasonable workman- ship, will be the measure of warranty performance by CHARTER. O z rn rn Y r 7 rn Y z Y z Z rn rn 7 Z7 z Building Your New Home • Copyright m 1999, 2004, 2005 Version 3.2r4 4/22/05 ALL-SPATE'"LEGAL 800-222-0510 ED11 RECYCLED t A e, ? 15 J 's l 54- ?D nC\- QC?- - N a. \ 0 ?3 n Q o s eA Fro me Donn -z` Ve _ r f C e A I l AQ 8 ?? ?? L7lJC ?? ? 4.?Oz ? 1 1 -1-1 5 L4 <S1 iaof o; Jk Poor le Lag" i c5? w. r S e i k'A 4- >-) A --o-) / Cft, C_ l( Ierp nC4 r 'o s ; n k f 11 „ ' -C? ?-, 5 A( .s-yQ - dye y ? r f 0, , -too- C 1?0 sP?? _? it ?CS,Ci, J ?'??? t? ?rt^ t ?t1 N, c, -1----5 pcw?A ( crag Cc, r l L41 L.1: 4?,l4 4-, kc `-?c-•----? S w_ ?'r rte.` t/ r ?. { ec?A,% n _! r _ _ - -- I N0. Cbs --°'G, r - - r _ co, M.0 C Ic3c I;Fsec U U7 b r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, DOCKET NO: 07-1590 Plaintiffs, V. CIVIL ACTION CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, JURY TRIAL DEMANDED Defendants. CERTIFICATION OF SERVICE This is to certify that I have served a true and correct copy of the Complaint upon the following, by the following means and on the date stated: Name:. Means of Service: Date of Service: Charter Homes at Dartmouth U.S. Mail, First Class January 25, 2008 Green, Inc. postage pre-paid 114 Foxshire Drive Lancaster, PA 17601 Charter Homes Building Company U.S. Mail, First Class January 25,2008 114 Foxshire Drive postage pre-paid Lancaster, PA 17601 JAMES SMITH DIETTERICK & C NNE1E:> XVJ. LP By: Hershey, PA 17033 Overnight Courier: 134 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Attorneys for Plaintiffs Todd J. Tuttle and Jennifer L. Tuttle ffey M. McCormickTEsquire Attorney I.D. # 95049 Mailing Address: P.O. Box 650 n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE. : DOCKET NO: 07-1590 Plaintiffs, v. CIVIL ACTION CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, Defendants : JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE CERTIFICATE OF SERVICE TO THE PROTHONOTARY: Kindly substitute the attached Certificate of Service for the Certificate of Service that was attached to the Complaint filed on January 25, 2008. Dated: January 25, 2008 Respectfully Submitted, JefW'ey M. McCormick, Esquire Pa. Attorney I.D. No. 95049 James Smith Dietterick & Connelly LLP Mail: P.O. Box 650 Hershey, PA 17033 Courier: 134 Sipe Avenue Hummelstown, PA 17036 Phone: (717) 533-3280 Facsimile: (717) 533-2795 Attorneys for Plaintiffs Todd J. Tuttle and Jennifer L. Tuttle K IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, V. Plaintiffs, CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, JURY TRIAL DEMANDED Defendants. CERTIFICATION OF SERVICE This is to certify that I have served a true and correct copy of the Complaint upon the following, by the following means and on the date stated: Name: DOCKET NO: 07-1590 CIVIL ACTION Means of Service: Susan V. Metcalfe, Esquire U.S. Mail, First Class McNees Wallace & Nurick LLC P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 Attorney for Defendants Date of Service: January 25, 2008 JAMES SMITH DIET=- By: "'effrey P M. McCormick, Esquire Attorney I.D. # 95049 Mailing Address: P.O. Box 650 Hershey, PA 17033 Overnight Courier: 134 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Attorneys for Plaintiffs Todd J. Tuttle and Jennifer L. Tuttle co I -iQ McNEES WALLACE & NURICK LLC Charles T. Young, Jr. Attorney I.D. No. 80680 Susan V. Metcalfe Attorney I.D. No. 85703 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (phone) (717) 260-1760 (fax) Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, 5620 Charlton Way Mechanicsburg, PA 17050 Plaintiffs, vs. CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, 114 Foxshire Drive Lancaster, PA 17601 Defendants. DOCKET NO. 07-1590 CIVIL ACTION NOTICE TO PLEAD TO: Plaintiffs Todd and Jennifer Tuttle and their attorney YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER AND NEW MATTER WITHIN/ WENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. McNEE,S, WALLACE & NUAICK LLC By Charles T. You , Jr. Attorney I.D. . 80680 Susan V. Me c Ife Attorney I.D o. 85703 P.O. Box 11 6, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (717) 260-1760 (fax) Dated: April 30, 2008 Attorneys for Defendant Charter Homes 2 McNEES WALLACE & NURICK LLC Charles T. Young, Jr. Attorney I.D. No. 80680 Susan V. Metcalfe Attorney I.D. No. 85703 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5397 (phone) (717) 260-1760 (fax) Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, 5620 Chariton Way Mechanicsburg, PA 17050 Plaintiffs, VS. CHARTER HOMES AT DARTMOUTH : GREEN, INC. and CHARTER HOMES : BUILDING COMPANY, 114 Foxshire Drive Lancaster, PA 17601 Defendants. DOCKET NO. 07-1590 CIVIL ACTION DEFENDANTS' ANSWER AND NEW MATTER Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, by and through their attorneys McNEES WALLACE & NURICK LLC, hereby file this Answer and New Matter to Plaintiffs' Complaint. In response to Plaintiffs' allegations, Defendants state the following: INTRODUCTION 1. This Paragraph contains a series of legal conclusions to which no response is required. To the extent a response is deemed required, Defendants deny that they engaged in any illegal or improper activity. THE PARTIES 2. It is admitted that Plaintiffs Todd J. and Jennifer L. Tuttle are adult individuals, husband and wife, with a current address of 5620 Charlton Way, Mechanicsburg, PA 17050 (the "Premises"). 3. It is admitted that Charter Homes at Dartmouth Green, Inc. is a Pennsylvania corporation with a business address at 114 Foxshire Drive, Lancaster, PA 17601. 4. It is admitted that Charter Homes Building Company is a Pennsylvania corporation with a business address at 114 Foxshire Drive, Lancaster, PA 17601. 5. It is admitted that Charter Homes Building Company is in the business of building and selling custom designed homes. It is further admitted that the company has built homes in several neighborhoods in Central Pennsylvania. VENUE 6. This Paragraph states a legal conclusion to which no response is required. FACTUAL BACKGROUND Alleged Water/Drainage Issues Within Charter's Dartmouth Green Development 7. It is admitted that in or about 2001, Charter began offering homes, in the pre-construction stage, in the Dartmouth Green neighborhood in Mechanicsburg. 2 8. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. By way of further response, Defendants are unaware of what Plaintiffs mean by the term "typical transaction." 9. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. By way of further response, Defendants are unaware of what Plaintiffs mean by the term "certain water and/or drainage issues." 10. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 11. Plaintiffs' characterizations of the design of Dartmouth Green are denied. Allegedly Undisclosed Flood At The Goldiner Property 12. It is admitted that Charter constructed the home at 5610 Charlton Way, Mechanicsburg, PA. It is further admitted that Charter sold the home to the Goldiners in 2003. The remainder of these allegations is denied. 13. Plaintiffs' characterizations of the location of the Goldiner home are denied. 14. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 3 15. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 16. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 17. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. Water/Drainage Problems At The Premises Allegedly An Open Issue Within Development 18. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 19. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 20. It is admitted that Charter constructed the Premises and subsequently put it on the market for sale. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are denied. 21. It is admitted that Charter showed the Premises to prospective homebuyers before selling it to Plaintiffs. The remainder of the allegations is denied. 4 Charter's Allegedly Intentional Non-Disclosure Of Water/Drainage Problems At The Premises 22. It is denied that Jim Vance or Mike Howell pumped water out of the basement of the Premises in September 2004. It is denied that the Premises experienced flooding in September 2004. 23. It is denied that Charter made any such representation. It is denied that Jim Vance or Mike Howell pumped water out of the basement of the Premises in September 2004. It is denied that the Premises experienced flooding in September 2004. 24. Denied. It is denied that there was any flooding issue. By way of further response, construction of a home typically includes steps to abate any potential flooding issues. The Premises was no different. 25. Denied. It is denied that Charter gave any such instructions to Danica Koppenheffer. 26. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 27. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 28. Denied. It is denied that Charter gave any such instructions to Danica Koppenheffer. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are denied. 5 29. Denied. It is denied that the Premises had previously experienced flooding. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are denied. 30. It is admitted that on or about March 7, 2005, the Tuttles executed a New Home Purchase Agreement. The Agreement is a legal document that speaks for itself. The remainder of these allegations is denied. 31. Denied. It is denied that the Premises previously experienced flooding. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are denied. 32. It is admitted that the Tuttles met with Mr. Howell. The remainder of the allegations is denied. Plaintiffs' characterizations of the conversation are specifically denied. 33. It is admitted that the closing occurred on or about April 13, 2005. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of the averments. Therefore, they are denied. 34. Denied. Plaintiffs received a variety of documentation, including disclosures, at or prior to closing. 35. Denied. This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, the allegations are denied. 6 By way of further response, the New Home Purchase Agreement is an integrated document. Charter Denies Water/Drainage Issues, and Refuses To Implement Remedial Measures 36. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 37. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 38. It is admitted the Tuttles were provided a One-Year Limited Warranty, a copy of which is attached to the Complaint. Plaintiffs' characterizations of the Warranty are denied. 39. It is denied that there was prior flooding at the Premises. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of these averments. Therefore, they are denied. 40. It is admitted that no flooding had occurred at the Premises prior to the sale to the Tuttles. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of these averments. Therefore, they are denied. By way of further response, there was nothing to remediate. 41. It is admitted that the Tuttles provided a list of items to Charter. The remainder of the allegations is denied. Plaintiffs' characterizations of the list are denied. 7 42. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. By way of further response, there was no flooding at the Premises prior to the sale to the Tuttles. 43. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 44. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 45. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 46. Denied. Defendant honored the terms of the Warranty. Plaintiffs' allegations are denied. Flooding Allegedly Occurs In The Basement Of The Premises 47. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 48. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 8 49. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 50. Denied. It is denied that Plaintiffs have been damaged by Defendants' conduct. 51. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 52. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 53. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments. Therefore, they are denied. 54. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remainder of these averments. Therefore, they are denied. 55. This Paragraph contains legal conclusions to which no response is required. To the extent a response is deemed necessary, the allegations are denied. COUNTI Fraud/Intentional Misrepresentation/Nondisclosure 56. Defendants' responses to Paragraphs 1 through 55 are hereby incorporated by reference as if fully set forth herein. 9 57. Denied. It is denied that Defendants made any intentional misrepresentations. The remainder of the allegations is also denied. 58. Denied. It is denied that Defendants made any intentional misrepresentations. The remainder of the allegations is also denied. 59. Denied. It is denied that Defendants made any intentional misrepresentations. The remainder of the allegations is also denied. 60. Denied. It is denied that Defendants made any intentional misrepresentations. It is denied that Plaintiffs justifiably relied on any representations not appearing in the Agreement. The remainder of the allegations is also denied. 61. Denied. Plaintiffs were not damaged by Defendants' conduct. 62. Denied. Plaintiffs were not damaged by Defendants' conduct. 63. Denied. Defendants acted properly at all times. WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their favor, plus costs. COUNT II Negligent/Reckless Misrepresentation 64. Defendants' responses to Paragraphs 1 through 63 are hereby incorporated by reference as if fully set forth herein. 65. This Paragraph states a legal conclusion to which no response is required. 66. Denied. It is denied that Defendants made misrepresentations and/or improper nondisclosures to Plaintiffs. 67. Denied. It is denied that Defendants made misrepresentations and/or improper nondisclosures to Plaintiffs. 10 68. Denied. It is denied that Defendants made misrepresentations and/or improper nondisclosures to Plaintiffs. It is denied that Plaintiffs suffered any damages due to Defendants' conduct. 69. This Paragraph contains legal conclusions to which no response is required. To the extent a response is deemed necessary, it is denied that Defendants made misrepresentations and/or improper nondisclosures to Plaintiffs. 70. Denied. It is denied that Defendants breached any duties or damaged Plaintiffs in any way. 71. Denied. Plaintiffs' characterizations of Defendants' conduct are denied. WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their favor, plus costs. COUNT III Alleged Violation of Real Estate Seller Disclosure Law 72. Defendants' responses to Paragraphs 1 through 71 are hereby incorporated by reference as if fully set forth herein. 73. Denied. The Real Estate Seller Disclosure Law does not apply to this case. 74. Denied. The Real Estate Seller Disclosure Law does not apply to this case. 75. Denied. The Real Estate Seller Disclosure Law did not apply to Defendants' actions in this case. WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their favor, plus costs. 11 COUNT IV Alleged Violation of Unfair Trade Practices and Consumer Protection Law 76. Defendants' responses to Paragraphs 1 through 75 are hereby incorporated by reference as if fully set forth herein. 77. This Paragraph states a legal conclusion to which no response is required. 78. This Paragraph states a legal conclusion to which no response is required. 79. Denied. Defendants' conduct did not violate the Consumer Protection Law. Plaintiffs have not been damaged by Defendants' conduct. 80. Denied. Plaintiffs are not entitled to recover any damages. WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their favor, plus costs. COUNT V Breach of Contract 81. Defendants' responses to Paragraphs 1 through 80 are hereby incorporated by reference as if fully set forth herein. 82. The Agreement speaks for itself, and Plaintiffs' characterizations of, and/or selective quotations from the Agreement are denied. By way of further response, the Agreement identifies the "Seller" as Charter Homes at Dartmouth Green, Inc., and Plaintiffs may not maintain a breach of contract claim against Charter Homes Building Company. 83. Denied. Defendants provided a home that was built in a good and workmanlike manner. 84. Denied. Defendants did not breach the Agreement. Plaintiffs have not been damaged by Defendants' conduct. 12 WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their favor, plus costs. COUNT VI Alleged Breach of Warranty 85. Defendants' responses to Paragraphs 1 through 84 are hereby incorporated by reference as if fully set forth herein. 86. Denied. Plaintiffs' self-serving characterizations of the notices provided to Defendants are denied. 87. It is admitted that Plaintiffs provided access to the Premises. The remainder of the allegations is denied. 88. Denied. The Premises did not exhibit any defects covered by the Warranty. 89. Denied. Defendants did not breach the Warranty, and Plaintiffs were not damaged by Defendants' conduct. WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their favor, plus costs. COUNT VII Rescission 90. Defendants' responses to Paragraphs 1 through 89 are hereby incorporated by reference as if fully set forth herein. 91. Denied. The Agreement was not based on fraud and/or material misrepresentations. By way of further response, the New Home Purchase Agreement identifies the "Seller" as Charter Homes at Dartmouth Green, Inc., and Plaintiffs may not 13 seek to rescind the Agreement based on the alleged conduct of a third party, namely, Charter Homes Building Company. WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their favor, plus costs. DEMAND FOR JURY TRIAL This Paragraph states a legal conclusion to which no response is required. To the extent a response is deemed necessary, Defendants note that Plaintiffs lack the right to a jury trial on several of their claims. NEW MATTER 1. The Real Estate Seller Disclosure Law ("Disclosure Law"), 68 Pa.C.S.A. § 7301 et seq., does not apply to this case, and Plaintiffs are unable to state a claim under its provisions. 2. The Disclosure Law does not apply to transfers of new residential construction that has not previously been occupied when: (i) the buyer receives a one- year or longer written warranty; (ii) the dwelling has been inspected for compliance with the applicable building code; and, (iii) a certificate of occupancy or certificate of code compliance has been issued for the dwelling. (See Exhibit "A, "' Certificate of Occupancy). 68 Pa.C.S.A. § 7302(a)(2). 3. The New Home Purchase Agreement identifies the "Seller" as Charter Homes at Dartmouth Green, Inc., and Plaintiffs may not maintain a breach of contract claim against Charter Homes Building Company. Plaintiffs lack privity of contract with Charter Homes Building Company. 14 4. Plaintiffs may not seek to rescind the Agreement or sale based on the alleged conduct of Charter Homes Building Company. 5. The New Home Purchase Agreement contains an integration clause that bars Plaintiffs' reliance on statements not contained in the Agreement. The New Home Purchase Agreement provides, in pertinent part, as follows: 23. ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer regarding the subject matter of this Agreement and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this transaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, amending, adding to or changing the terms of this Agreement. No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. Seller is not responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, their respective heirs, personal representatives, successors and assigns. 6. The Agreement provides that, "Buyer is represented by a real estate licensee who is a Buyer Agent or a Designated Agent of a real estate firm acting as a Dual Agent. No real estate agent has any authority to act on behalf of Seller." (Agreement, 725). 7. Other provisions of the Agreement may apply and bar Plaintiffs' claims. 8. Plaintiffs' tort claims are barred by the "gist of the action" doctrine. 9. Plaintiffs' allegations are barred by the parol evidence rule. 10. Plaintiffs' claims may be barred by the applicable statute of limitations. 15 11. Plaintiffs' claims may be barred by the doctrine of laches. 12. Plaintiffs' claims may be barred by the doctrine of estoppel. 13. Plaintiffs have resided at the Premises for a substantial period of time. To the extent Plaintiffs seek to rescind the purchase of the Premises, Defendants are entitled to offset, recoup, and/or set-off the rental value of the Premises and other costs. 14. The One-Year Limited Warranty bars any claim for consequential or incidental damages. 15. The One-Year Limited Warranty was in lieu of, and displaced all other warranties. 16. Plaintiffs may have failed to mitigate their damages. 17. Plaintiffs' claims may be barred by the statute of frauds. 18. Plaintiffs' claims may be barred by an accord and satisfaction reached between the parties. WHEREFORE Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company demand judgment in their fa_j 6r, plus costs. MCNEE$MAILLACIE 8( NURICK LLC Dated: April 30, 2008 By_ 1/ Charles T. ung Attorney D No. 80680 Susan . etcalfe Attom D. No. 85703 P.O. Box 1166, 100 Pine Street Harrisburg, PA 17108-1166 Phone: (717) 237-5397 Fax: (717) 260-1760 E-mail: cyouna .mwn.com Attorney for Defendants 16 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, I hereby certify that I am a Vice President for Charter Homes Building Company. In that capacity, I have the authority to make this Verification on its behalf. I further certify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. Charter Homes Buiiding Company By Jim 2er, ice President Dated: April a, 2008 A TOWNSHIP OF HAMPDEN Certificate Issued: -230 SOUTH SPORTING HILL ROAD BUILDING CERTIFICATE OF MECHANICSBURG, PA 17055-3097 PERMIT OCCUPANCY p"ONE (717) 761-0110; FAX 761-7267 Date:. 12/29/2003. Permit No. 14625 Applicant: CHARTER HOMES/MIKE HOWELL AM? ac lddress: 114 FOXSHIRE DRIVE tv,? f -i 6 }?lx? .Builder's W.C. Info.: HORST INSURANCE IM9775924 Builder'slax I.D. No.: 23_2546580 Permit To: New ties idential/Detached Stories: 2 Use: R.ESIDENTIAL-1+2. FAMI Project Address: 5620 CHARLTON WAY Zoning District: R_S M1:CHANI CSbORG PA 17050 ?-° lam Between: NEWBOLD LANE and 611ELSEN CROSS .Parcel Number: .10-17-1031-184 -Subdivision: Dartmouth Green Ph 2 LOT NUmDer: 53 Lot size:. 13753 Building is to be 43 Ft. wide by! .: 5, Ft. long by 30 Ft. in height ,-Building ft o?0:1,type: 58 Use Group: RES ACFbbtin?4t\-14? 20 'Basement walls or foundation: 10" CONC. Floor area: 3054 'Yards: Front: 21 5 Rear: 44 Left side: .25 Right side: .32 Remarks: u -br•, 2..5 .bath; pt.wd.sills, ac smoke detectors interctd, pella 3365, tree 1 . s in n,r.o.w,, basement egress, display building address number. 59 51H sm SRI Permit Fee. 1200.00 IN, INC., CAMP HILL, P 1,7011 CERTIFICATE OF SERVICE 30 14 I, Charles T. Young, Jr., hereby certify that on this day of April 2008, a true and correct copy of the foregoing Answer and New Matter was served by U.S. first-class mail, postage prepaid, upon the following: Attorney for Plaintiffs Jeffrey M. McCormick, Esq. James Smith Die eric & Connelly LLP P. pox/ 650 ` Hers v P 17083 / Charles T. YounVJr., Attorney for z F3 :; ??+ James, Smith, Dietterick & Connelly, LLP Jeffrey M. McCormick, Esquire Pa. Attorney I.D. No. 95049 jmm@jsdc.com 134 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and DOCKET NO: 07-1590 JENNIFER L. TUTTLE, Plaintiffs, V. CIVIL ACTION CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, JURY TRIAL DEMANDED Defendants. NOTICE TO PLEAD TO: Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Plaintiffs' Reply to New Matter of Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company with New Matter, within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Jeffrey M. McCormick, Esquire Pa. Attorney I.D. No. 95049 James Smith Dietterick & Connelly, LLP Mailing Address: P.O. Box 650 Hershey, PA 17033 Overnight Courier: 134 Sipe Avenue Hummelstown, PA 17036 Phone: (717) 533-3280 Attorneys for Plaintiffs James, Smith, Dietterick & Connelly, LLP Jeffrey M. McCormick, Esquire Pa. Attorney I.D. No. 95049 jmm@jsdc.com 134 Sipe Avenue Hummelstown, PA 17036 (717) 533-3280 Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and DOCKET NO: 07-1590 JENNIFER L. TUTTLE, Plaintiffs, V. CIVIL ACTION CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, JURY TRIAL DEMANDED Defendants. PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANTS CHARTER HOMES AT DARTMOUTH GREEN. INC. AND CHARTER HOMES WELDING COMPANY WITH NEW MATTER Plaintiffs Todd J. Tuttle and Jennifer L. Tuttle ("Plaintiffs"), through their counsel, James Smith Dietterick & Connelly LLP, respectfully file this Reply to New Matter of Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company with New Matter as follows: REPLY TO NEW MATTER Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that the Real Estate Disclosure Law, 68 Pa.C.S.A. § 7301, et seq. ("Disclosure Law") does not apply under the facts of this case. By way of further answer, the allegations in Plaintiffs' Complaint are incorporated by reference. 2. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that the Disclosure Law does not apply under the facts of this case. The allegations in Plaintiffs' Complaint are incorporated by reference. By way of further answer, prior to its sale to Plaintiffs, Defendants occupied the Premises. Further, the Premises was not new residential construction at the time it was sold to Plaintiffs. 3. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs lack privity of contract with Charter Homes Building Company under the facts of this case. By way of further answer, the allegations in Plaintiffs' Complaint are incorporated by reference. 4. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. By way of further answer, Paragraph 3, above, is incorporated by reference. 5. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. By way of further answer, the New Home Purchase Agreement attached to the Complaint ("Agreement") is a writing which speaks for itself. It is specifically denied that, under the facts of this case, any of Plaintiffs' claims are barred by any provision of the Agreement. The allegations in Plaintiffs' Complaint are incorporated by reference. 6. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. By way of further answer, Paragraph 5, above, is incorporated by reference. 2 7. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. By way of further answer, Paragraph 5, above, is incorporated by reference. 8. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' tort claims are barred by the "gist of the action" doctrine. The allegations in Plaintiffs' Complaint are incorporated by reference. 9. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' allegations are barred by the parole evidence rule. The allegations in Plaintiffs' Complaint are incorporated by reference. 10. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' claims are barred by the applicable statute of limitations. The allegations in Plaintiffs' Complaint are incorporated by reference. 11. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' claims are barred by the doctrine of laches. The allegations in Plaintiffs' Complaint are incorporated by reference. 12. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' claims are barred by the doctrine of estoppel. The allegations in Plaintiffs' Complaint are incorporated by reference. 13. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Defendants are entitled to a set-off under the facts of this case. The allegations in Plaintiffs' Complaint are incorporated by reference. By way of further answer, Plaintiffs do not know what Defendants mean by "substantial period of time." 14. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' claims are barred by the One-Year Limited Warranty. The allegations in Plaintiffs' Complaint are incorporated by reference. By way of further answer, at all times releant herein, the One-Year Limited Warranty either does not apply to Plaintiffs' claims and/or Plaintiffs were in compliance with its provisions for making a valid claim thereunder. 15. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. By way of further answer, Paragraph 14, above, is incorporated by reference. 16. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs have failed to mitigate their damages, as Plaintiffs have expended roughly $50,000.00 to date in attempting to mitigate their damages. 17. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' claims are barred by the statute of frauds. The allegations in Plaintiffs' Complaint are incorporated by reference. 18. Denied. This paragraph sets forth legal conclusions to which no response is required. To the extent the allegations in this paragraph are deemed to be factual, they are denied. It is specifically denied that Plaintiffs' claims are barred by an accord and satisfaction reached between the parties. The allegations in Plaintiffs' Complaint are incorporated by reference. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, and to award Plaintiffs treble their actual damages in an amount in excess of $35,000.00, plus interest, costs, attorney's fees, punitive damages, and all other relief to which Plaintiffs are entitled. NEW MATTER 19. Paragraphs 1 through 18, above, are incorporated by reference and asserted as New Matter. 20. Plaintiffs' Complaint is incorporated by reference and asserted as New Matter in defense of Defendants' New Matter. 21. Defendants have failed to state a legal defense to Plaintiffs' claims and causes of action. 22. At all material times, Defendant Charter Homes at Dartrmouth Green, Inc. acted as agent for Defendant Charter Homes Building Company. 23. At all material times, Defendant Charter Homes Building Company acted as agent for Defendant Charter Homes at Dartrmouth Green, Inc. 24. The Premises was not new construction when it was sold to Plaintiffs, as Defendants occupied the Premises prior thereto. 25. At all material times, the One-Year Limited Warranty either does not apply to Plaintiffs' claims and/or Plaintiffs were in compliance with its provisions for making a valid claim thereunder. 26. To date, Plaintiffs have expended roughly $50,000.00 in attempting to mitigate the damages caused by Defendants. WHEREFORE, Plaintiffs, Todd J. Tuttle and Jennifer L. Tuttle, respectfully request the Court to enter judgment in their favor and against Defendants, Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company, and to award Plaintiffs treble their actual damages in an amount in excess of $35,000.00, plus interest, costs, attorney's fees, punitive damages, and all other relief to which Plaintiffs are entitled. Respectfully submitted, JAMES SMITH DIETTERICK & CONNELLY LLP C BY: , -) Jef Ire cCormick, Esquire Pa. Attorney I.D. No. 95049 Mailing Address: P.O. Box 650 Hershey, PA 17033 Overnight Courier: 134 Sipe Avenue Hummelstown, PA 17036 Phone: (717) 533-3280 Attorneys for Plaintiffs VERIFICATION I, Todd J. Tuttle, hereby aver and state that I have read the foregoing document, which has been drafted by counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. -77--?nw Todd J. Tuttle IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and DOCKET NO: 07-1590 JENNIFER L. TUTTLE, Plaintiffs, V. CIVIL ACTION CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE The undersigned hereby certifies that I served a true and correct copy of the foregoing document upon the following individual(s) by depositing the same in the U.S. Mail, postage pre- paid at Hershey, Dauphin County, Pennsylvania this 3" day of June, 2008. Charles T. Young, Esquire McNees, Wallace & Nurick, LLC P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 JAMES SMITH DIETTERICK & CONNELLY LLP BY: Jeffrey M. McCormick, Esquire Pa. Attorney I.D. No. 95049 Mailing Address: P.O. Box 650 Hershey, PA 17033 Overnight Courier: 134 Sipe Avenue Hummelstown, PA 17036 Phone: (717) 533-3280 Attorneys for Plaintiffs Cy `?+ 4'_` ?i3J ?, w ?? °? .. y _t `? _ ... ...K-a -? ?S `"? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, Plaintiffs NO. 07-1590 V. : CIVIL ACTION - LAW CHARTER HOMES AT DARTMOUTH : GREEN, INC. and CHARTER HOMES : JURY TRIAL DEMANDED BUILDING COMPANY, Defendants PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw our appearance on behalf of Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company. (Attorney Robert G. Dobslaw has entered his appearance on behalf of Defendants). McNEES WAS ACE °& NURICK LLC By Charles T. Youn " Attorney I.D. No 8 680 Susan V. Metc?flf Attorney I.D. N6 85703 P.O. Box 1166, 100 Pine Street Harrisburg, PA 11-17,41008- 1166 Phone: 717-237-5397 Fax: 717-260-1760 E-mail: cyoung(cx_mwn.com Dated: June oq, 2009 CERTIFICATE OF SERVICE I, Charles T. Young, Jr., hereby certify that on this ??I day of June 2009, a true and correct copy of the foregoing document was served by U.S. first-class mail, postage prepaid, upon the following: Attorney for Plaintiffs Matthew Chabal, III, Esq. James Smith Dietterick & Connelly LLP P.O. Box 650 Hershey, PA 17033 Substitute Counsel for Defendants Robert G. Dobslaw, Esq. 110 Ridings Way Lancaster, PA 17601-1706 Charles T. Young, ?L OF THE F ^f e F.) l# i. ?Ti??? 1009 AIN 30 F;y 1* 33 (-l?l ?I k ?.li lil A''. f?f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, ; Plaintiffs NO. 07-1590 v. CIVIL ACTION - LAW CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES JURY TRIAL DEMANDED BUILDING COMPANY, Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company. ?Zlz)e?y Ra6ert G. Dobslaw Attorney I.D. No. 61162 110 Ridings Way Lancaster, PA 17601-1708 Phone: 717-898-4688 Fax: 866-854-5523 E-mail: robe rt(a-)-dobslaw net Dated: June 2009 CERTIFICATE OF SERVICE I, Charles T. Young, Jr., hereby certify that on this day of June 2009, a true and correct copy of the foregoing document was served by U.S. first-class mail, postage prepaid, upon the following: Attorney for Plaintiffs Matthew Chabal, III, Esq. James Smith Dietterick & Connelly LLP P.O. Box 650 Hershey, PA 17033 Substitute Counsel for Defendants Robert G. Dobslaw, Esq. 110 Ridings Way Lancaster, PA/17601-1708 FEis i'Rr--W ;?fi. TF IY 2009 JUG 3 Q N 1: 3 8 {? fp IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. TUTTLE, Plaintiffs NO. 07-1590 V. CIVIL ACTION - LAW CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES JURY TRIAL DEMANDED BUILDING COMPANY, Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company. McNEES WALLACE & NURICK LLC By l 1?`? Helen L. Gemmill (Pa. I.D. No. 60661) 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Telephone: (717) 232-8000 Dated: October 28, 2009 Attorneys for Defendants Charter Homes at Dartmouth Green, Inc. and Charter Homes Building Company CERTIFICATE OF SERVICE I certify that on this date, a true and correct copy of the foregoing document was served by U.S. first-class mail, postage prepaid, upon the following: Attorney for Plaintiffs Matthew Chabal, III, Esq. James Smith Dietterick & Connelly LLP P.O. Box 650 Hershey, PA 17033 Helen L. Gemmill Dated: October 28, 2009 FILED0; rE OF THIE PROTHONOTARY 2009OCT 29 PM 2: 08 Pb; NS1'LV4NIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD J. TUTTLE and JENNIFER L. : TUTTLE, Plaintiffs, V. NO. 07-1590 CHARTER HOMES AT DARTMOUTH GREEN, INC. and CHARTER HOMES BUILDING COMPANY, Defendants. : CIVIL ACTION PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark this case settled, discontinued and ended, with prejudice. Respectfully submitted, y 3 w -40 ©- ? v n -o n ? a c5 ? C N rrt A Matthew Chabal, III, Esquire Attorney I.D. No. 49926 James Smith Dietterick & Connelly LLP Mailing Address: P.O. Box 650 Hershey, PA 17033 Courier Address: 134 Sipe Avenue Hummelstown, PA 17036 Dated: June 10, 2011 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that I served a true and correct copy of the foregoing document upon the following individual(s) by depositing the same in the U.S. Mail, postage pre- paid at Hershey, Dauphin County, Pennsylvania this 10th day of June, 2011. Helen L. Gemmill, Esquire McNees Wallace & Nurick LLC 100 Pine St PO Box 1166 Harrisburg, PA 17108-1166 lLzt: Matthew Chabal, III