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HomeMy WebLinkAbout07-2179WMMf3NWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of Cumberland FROM DISTRICT JUSTICE JUDGMENT ?tt LCZL y11 JP fo?' NOTICE OF APPEAL COMMON PLEAS No. 07 NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on ` the date and in the case referenced below. alker, Kenneth A. & Mildred E. 4800 Oakmont Green Mechanicsburg PA 17050 DATE OF JUDGMENT IN THE CASE OF (Plaintiff) " ?rJererroerwt 03/22/07 Walker, kPA(1e_+14 s- AU 1rd1 _, -Custer Homes, Inc. CV-0000332-06 I K A This block will be signed ONLY when this notation is required under Pa. If appSllan`t was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after riling the NOTICE of APPEAL. Signature of Prothonotary or DePW PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature ofappellant or attomey or agent RULE: To appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 Thomas A. Placey 1 WHITE -COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW -APPELLANT'S COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY To BE SERVED ON DISTRICT JUSTICE I- •,, PROOF OF SERVICE OF NOTICE bFAPPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of afflant Signature of official before whom affidavit was made Title of official My commission expires on 20 ;kj- 'k d ? c? 0 1?F•- ? co 4' C} -G APR-18-07 WED 09:29 AM COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CD' MERLAND U,1 NO.. 09-3-04 MOdNar,io Hurl THOMAS A. PLACEY Anulo.,3 104 S SPORTING HILL BD XRCHANICSB'URG, PA Tc1onnono: (717 ) 7161-8230 17050 KENNETH A. WALKER 4800 OAKMOb1 T GREEN NRCRANICSBURG, PA 17050 FAX NO. P. 02 NOTICE OF JUDGIVIENT/TRANSCRIPT CIVIL CASE PLAINTIFF! NAV4 x(IADORFSS riALKER, rXMTH A 4800 OA MONx' GRE$N MECHANICSBURG, PA 17050 L vs. DEFENDANT: NAME W4 AUU11Z ;5 IRCUSTER BOXES, INC. -? 2805 OLD POST ROAD SDTTX 200 LHARRISB't7RG, PA 17110 J Docket No.: CV-0000732-06 Date Filed: 12/06/06 ?. THIS IS TO NOTIFY YOU THAT: CUSTRR BOXES, INC., Jtld DISMISSED W/0 PREJUDICE grtleni: (Date of Judgment) r Judgrent was entered for., (Name) L_J Judgmcnt was entered against: (Name)_M _ in the amount of $ El Defendants are jointly and severally liable. Damages will be assessed on Date & Time- - CXI This caso dismissed without prejudice. F] Arnount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $.._ Dar 001 3/22/07 CIO Amount of Judgment Judgment Costs 8 • DO Interest on Judgment ?f! Attorney Fees $?_...?m,.. ,. . 00 Total $ _ 00 Post Judgment Credits $ W Post Judgment Costs $ _ Certified Judgment Total ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE, ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARYICLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. FXCL;PT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGG:MENT HOLDER ELECTSS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALI. FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE, UNL ES5 THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST rOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT, 5?_'4? ..1 D ate I corlity tl?1a t this is a t Date Magisterial District Judgo copy o th recar o edings containing the judgment. r_ Magisterial District Judge My commission expires first Monday of January, 2010, AOPC 315-06 SEAL DATE PRINTED: 3/22/07 11:43:00 AN KENNETH A. WALKER and, MILDRED E. WALKER, husband and wife, Plaintiffs V. CUSTER HOMES, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2007-2179 CIVIL ACTION - LAW CIVIL TERM PROOF OF SERVICE OF NOTICE OF APPEAL Kenneth A. Walker and Mildred E. Walker, husband and wife, Plaintiffs, by and through their attorney, Jennifer B. Hipp, Esquire, respectfully represent as follows: 1. Plaintiffs served Custer Homes, Inc., Defendant, with their Notice of Appeal by certified mail, service being made on April 19, 2007. A copy of the certified mail confirmation is attached hereto and incorporated herein as Exhibit "A". 2. Plaintiffs served The Honorable Thomas A. Placey, with their Notice of Appeal by certified mail, service being made on April 19, 2007. A copy of the certified mail confirmation is attached hereto and incorporated herein as Exhibit "B". Date: April 26, 2007 By: C-'A' r ) ?' 7 f Jennife B. Hipp, Esquire Attorn y I.D. No. 86556 Bogar & ipp Law Offices One West Main Street Shiremanstown, PA 17011 Phone: (717) 737-8761 NAMES D. BOGAR ATTORNEY AT LAW ONE WEST MAIN STREET SHIREMANSTOWN, PENNSYLVANIA 17011 e-mail mail Obogarlaw.com JAMES D. BOGAR JENNIFER B. HIPP• 'Also admitted to New Jersey Bar April 18, 2007 UTA CERTIFIED MAIL, RETURN RECEIPT REQUESTED Custer Homes, Inc. Attn: Stan Custer, Jr. 2805 Old Post Road, Suite 200 Harrisburg, PA 17110 TELEPHONE (717) 737-8761 FACSIMILE (717) 737-2086 Direct a-mall JMpp®bogarlaw.com RE: Kenneth A. Walker and Mildred E. Walker v. Custer Homes, Inc. Docket No. CV-0000732-06 Dear Mr. Custer: Enclosed for service upon you is the Notice of Appeal filed by Kenneth A. Walker and Mildred E. Walker in the above-captioned matter. We are also forwarding a copy of the Notice of Judgment as issued by Magisterial District Judge Thomas A. Placey. On behalf of Mr. and Mrs. Walker, we will be filing their Complaint with the Court of Common Pleas of Cumberland County in short order. Very truly yours, VI 4JEIWFER B. HIPP JBH/bbl Enclosures cc: Kenneth A. Walker and Mildred E. Walker CERTIFIED MAIL NO. 7006 0100 0001 0299 3004 a EXHIBIT a \%A N !1 J J Q ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: C .d5+t r ?cmes, a; C . ??n: fan ?u5?'r) Jr. c? 05 Ord tRsf Pd., Sfe.'o A. Signature X a / , „ `? ,V r-t1t O Agent (? / ? Addressee B. Received by (Printed Name) C. ?a Delivery D. Is delivery address different from Item 17 0 Yes If YES, enter delivery address below: 0 No 3. Service Type trr-1 ,PA /7//0 XCertified Mail 0 Express mail 0 Registered ? Return Receipt for Merchandise 0 Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (rmnsferfrom service label) 7006 0100 0001 0299 3004 P9 Form 3811, February 2004 Domestic Return Receipt 102695-02-M-1e40 Postal 0 0 M (Domestic Mail Only, No Ins F li urance Coverage Provided) o0-. or d. very information visit o HA ' 7 I ur website at www.uspsxvnu? ti C3 r9 Postage $ l). }4 C3 Im Cenifled Fee C3 Return Receipt Fee (Endorsement Required) 1+ - stm CIO Here ! C3 C3 Restricted Dip r Fee (Endorsement Required ) } • t) i ti C3 n Total Postage & Fees (pct 1 k r - 0 rant ro _ e {? J,,, y !J h .5l. 11 ??j ?..Lr:_? JAMES D. BOGAR JAMES D. BOGAR JENNIFER B. HIPP• 'Also admitted to New Jersey Bar ATTORNEY AT LAW ONE WEST MAIN STREET SHIREMANSTOWN, PENNSYLVANIA 17011 e-mail mail®bogarlaw.com April 18, 2007 VXA CERTIFIED MAIL, RETURN RECEIPT REQUESTED The Honorable Thomas A. Placey 104 S. Sporting Hill Road Mechanicsburg, PA 17050 TELEPHONE (717) 737-8761 FACSIMILE (717) 737-2086 Direct a-mall Jhipp®bogarlaw.com RE: Kenneth A. Walker and Mildred E. Walker v. Custer Homes, Inc. Docket No. CV-0000732-06 Dear Magisterial District Judge Placey: Enclosed for service upon you pursuant to the Rules of Civil Procedure for Magisterial District Judges is the Notice of Appeal filed on behalf of Kenneth A. Walker and Mildred E. Walker in the above-captioned matter. We are also forwarding a copy of your Notice of Judgment in this case. Please contact us if we are able to provide you with additional information. Very truly yours, JENN E B. HIPP JBH/bbl Enclosures cc: Kenneth A. Walker & Mildred E. Walker CERTIFIED MAIL NO. 7006 0100 0001 0299 3011 a EXHIBIT t? W Jw `? F N J J Q ¦ Complete items 1, 2, and 3. Also complete A store Item 4 if Restricted Delivery is desired. X Agent ¦ Print your name and address on the reverse • ? Addressee so that we can return the card to you. B. Received ( Printed Name) C. Date of Delivery ¦ Attach this card to the back of the mailpiece, ?-? or on the front if space permits. D. Is delivery address different from s 1. Article Addressed to: tt {? I?onorct??e??S ??.?1CtC?t? If YES, enter delivery add 0 11 lbq ?• Spar+; X1.I1 Rd . 1 1 ;iw- x 1' If.Cf>Ctnl c-565, I' 1 1 7v5" 3. Service Type ccJJ k(Certiged Mail 0 Expres 'a 0 Registered 0 Realm Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number 7006 0100 0001 0299 3 011 (Transfer from service kLW PS Form 3811, February 2004 Domestic Return Receipt 102595.02-M-1540 Postal rl CERTIFIED MAI Lm RECEIPT CO (Domestic Only; No I M F d li i f i i nsurance Coverage Provided) or e very n ormat on v sit Er Cr our website at www.uspsxorn?,' ti Postage 0 certified Fee 0 t r4i] C3 0 Return (Endorse ent Required) ... po iJ H J C3 Restricted )elWery Fee ? (Endorsement Required) O Total Postage & Fees $ $4.64 `' - 'ool 147 I , - ^ C -J s(.fl,C.h ble, rm.J - °. K Jt. J1 orPO9oxNo._ Citi% Stale Z1PF4T _ / / { T ",? . ,- - - •" CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Proof of Service of Notice of Appeal upon the following named individuals this day by depositing same in the United States Mail, First Class, postage prepaid, at Shiremanstown, Pennsylvania, addressed as follows: Custer Homes, Inc. Attn: Stan Custer, Jr. 2805 Old Post Road, Suite 200 Harrisburg, PA 17110 The Honorable Thomas A. Placey 104 S. Sporting Hill Road Mechanicsburg, PA 17050 Date: April 26, 2007 Jennifer Hipp, Esquire C7 ? 0 rv -° C w _?; _ ! Y: ? -? rI x'71 ? t ?3CY "l r -G I w KENNETH A. WALKER and, MILDRED E. WALKER, husband and wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2007-2179 V. CUSTER HOMES, INC. Defendant CIVIL ACTION - LAW CIVIL TERM N O T I C E 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 (800) 990-9108 % ' By: Jenn'f r B. Hipp, Esquire Pa. I. No. 86556 One West Main Street 0 y Shiremanstown, PA 17011 (717) 737-8761 Attorneys for Plaintiffs, Kenneth A. Walker and Mildred E. Walker I R KENNETH A. WALKER and, MILDRED E. WALKER, husband and wife, Plaintiffs V. CUSTER HOMES, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2007-2179 CIVIL ACTION - LAW CIVIL TERM COMPLAINT Kenneth A. Walker and Mildred E. Walker, husband and wife, Plaintiffs, by and through their attorneys, Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire, respectfully represent as follows: 1. Plaintiffs herein are Kenneth A. Walker and Mildred E. Walker, husband and wife, with an address of 4800 Oakmont Green, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant herein is Custer Homes, Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal office at 2805 Old Post Road, Suite 200, Harrisburg, Pennsylvania 17110. 3. Plaintiffs and Defendant entered into a written contract, dated February 27, 2006, and signed by all parties on February 28, 2006, for the purchase of a duplex residential property. A copy of the Contract is attached hereto, marked as Exhibit "A" and incorporated herein. 4. At the time that Plaintiffs and Defendant entered into the contract, Defendant had commenced construction of the duplex residential property. 1 ¦ 5. Pursuant to the terms of the Contract, the Defendant conveyed fee simple title of the duplex residential property to Plaintiffs. 6. Pursuant to written specifications as contained in a document separate from the Contract, Defendant was contractually obligated to complete construction of the duplex residential property for the Plaintiffs. 7. The real property is known and numbered as 4800 Oakmont Green, Mechanicsburg, Cumberland County, Pennsylvania 17050. 8. During and after the process of completing construction of their home at 4800 Oakmont Green, Mechanicsburg, Pennsylvania, Plaintiffs discovered several areas of Defendant's work that failed to conform to the requirements of the building specifications. 9. Plaintiffs contacted Defendant on multiple occasions to advise Defendant of the non-conforming work and repairs that needed to be completed. 10. Defendant either ignored Plaintiffs' request for remedy of the defective and sub-standard work and/or promised to remedy the defective work but failed to adequately do so. 11. On or about December 6, 2006, Plaintiffs filed a Complaint with Magisterial District Judge Thomas A. Placey. On or about March 8, 2007, Magisterial District Judge Placey held a hearing regarding Plaintiffs' Complaint. 12. On or about March 22, 2007, Magisterial District Judge t Placey issued a decision in this case denying Plaintiffs' Complaint. 13. Plaintiffs filed a Notice of Appeal from District Justice Judgment with this Honorable Court on April 18, 2007. 14. Defendant has failed to adequately follow-up and correct the faulty items or to follow-up at all with Plaintiff. 15. Of the items which do not conform to the terms, conditions and specifications of the Sales Agreement and related specification documents, the following problems persist: A. Severe cracking exists on the concrete floor in the garage. B. Water ponds, instead of traveling to and draining in the garage floor drain, and drains toward the garage wall adjacent to the wall of the interior of the residential structure which causes mold to grow in the garage and inside the adjacent laundry room wall, and further results in water leaking into the basement. C. The concrete wall in the basement is cracked. D. The basement floor is cracked and is settling. E. The driveway and sidewalks do not conform with acceptable construction standards and must be repaired due to extreme settling. F. Soil compaction, re-grading and re-filling must be performed in compliance with applicable construction and municipal standards. F , G. The grout and cracked tile in the master bath shower must be repaired and/or replaced. H. The powder room faucet leaks and the handles are backwards. I. The basement floor and foundation have settled over a sewer line causing cracks to form in the wall and floor, which require repair. J. Plaintiffs, at their cost, hired a landscaping company to replace much of the landscaping given that the landscaping performed by Defendants did not comply with contract specification and representations and because plants installed by Defendant died. 16. Defendants did not install bushes, trees, shrubs and plants and did not perform landscape services pursuant to representations as to quality, type and size of bushes, trees, shrubs and plants and landscape services. 17. Plaintiffs hired the engineering firm of Advantage Engineering to review the many problems with their home. 18. Plaintiff incurred the cost of approximately three hundred twenty dollars ($320.00) of Advantage Engineering in having Advantage Engineering perform an inspection and prepare a report identifying the causes of the problems with the settling of their yard. 19. Plaintiffs anticipate incurring approximately one thousand dollars ($1,000.00) to perform other tests to determine 0 r the cause of cracks in the foundation, walls and floor of the basement and floor of the garage. 20. Defendant failed to respond to Plaintiffs' repeated requests for remedial action or to take any other action as requested by Plaintiffs. 21. The cost to remediate the problems would be in the approximate amount of eight thousand two hundred and forty dollars ($8,240.00). 22. Plaintiffs have fully complied with all the terms of the contract. See Exhibit "A". 23. Plaintiffs have paid, in full, Defendant pursuant to the terms and conditions of the contract. 24. Despite Plaintiffs' repeated demands, Defendant has failed and refused to respond to Plaintiffs' requests for completion of the contractually obligated items and/or reimbursement for work performed at the request of Plaintiffs. COUNT I - BREACH OF CONTRACT 25. The averments of Paragraphs 1 through and including 24 hereinabove are incorporated herein by reference thereto. 26. By virtue of the contract between Plaintiffs and Defendant, Defendant agreed to perform, in full, all of the items as set forth in the Contract. See Exhibit "A" 27. Defendant has failed to fully perform its obligations as set forth in the Contract. 28. To date, Defendant, despite proper requests and demands • a by the Plaintiffs, has failed to fully comply with the terms of the Contract. WHEREFORE, Plaintiffs demand judgment against Defendant, Custer Homes, Inc., in the amount of eight thousand two hundred and forty dollars ($8,240.00), together with the costs of this action, attorney's fees, engineering fees and any other relief deemed just and appropriate. COUNT II - QUANTUM MERUIT/IMPLIED CONTRACT 29. The averments of Paragraphs 1 through and including 28 hereinabove are incorporated herein by reference thereto. 30. Pursuant to the terms and conditions of the Contract, Plaintiffs fully remitted payment to Custer Homes, Inc. 31. Pursuant to the terms of the Contract, Defendant is obligated to complete all of the items related to the construction of the Plaintiffs' residential home at 4800 Oakmont Green, Mechanicsburg, Pennsylvania in a workmen-like manner. 32. To date, Defendant, despite proper requests and demands by Plaintiffs, has failed to honor the terms and conditions of the Contract. 33. By reason of Defendant's request for payment by Plaintiffs, Defendant impliedly agreed to fully and adequately perform pursuant to the terms and conditions of the Contract. WHEREFORE, Plaintiffs demand judgment against Defendant, Custer Homes, Inc., in the amount of eight thousand two hundred and forty dollars ($8,240.00), together with the costs of this I I action, attorney's fees, engineering fees and any other relief deemed just and appropriate. COUNT III - UNJUST ENRICHMENT 34. The averments of Paragraphs 1 through and including 33 hereinabove are incorporated herein by reference thereto. 35. Defendant obtained payment from Plaintiffs in the full amount as set forth in the Contract. See Exhibit "A". 36. As a direct and proximate result of Defendant's refusal to perform pursuant to the terms and conditions of the Contract, Defendant has been unjustly enriched in the amount of eight thousand dollars ($8,000.00). WHEREFORE, Plaintiffs demand judgment against Defendant, Custer Homes, Inc., in the amount of eight thousand two hundred and forty dollars ($8,240.00), plus interest, together with the costs of this action, attorney's fees, engineering fees and any other relief deemed just and appropriate. Date: May 8, 2007 v Jenni e B. Hipp, Esquire Pa. I.D. No. 86556 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Attorneys for Plaintiffs, Kenneth A. Walker and Mildred E. Walker VERIFICATION We verify that the statements made in this Complaint are true and correct. We understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE : / 11! ,e Kenneth A. Walker DATE : Mil red E. Walker STANDARD AGREEMENT FOR THE SALE OF REAL ESTATE A/S-R • * Thiv fnm, recnmmended and anoroved for. but not restricted to use by, the members of the Pennsylvania Association of REALTORS• (PAR). BROKER S c n ( -lei r•c ADDRESS t% 10 c b ) r`a 1 t?' sue; 2 F LICENSEE(S) o f) / + + r s' „ BROKER IS THE AGENT FOR SELLER. OR (if checked below): Broker is NOT the Agent for Seller and is a/an: ? AGENT FOR BUYER WITH PA LICENSED BROKER --PHONE G Q T- "tllr 7 P t I f,4 FAX. 4 f7- Designated Agent? ? Yes ? No ? TRANSACTION LICENSEE BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER BROKER (Company) A/0 -.t) ; at d ?f . l'? s t A !`, e ,A /a PHONE 7 (o / - / 1 / U ADDRESS ?. - c t^?? r) ? FAX 6, - 1 e LICENSEE(S) 1 1? l 4W Designated Agent' ? Yes ? No BROKER IS THE AGENT FOR BUYER. OR (if checked below): Broker is NOT the Agent for Buyer and is a/an: ? AGENT FOR SELLER ? SUBAGENT FOR SELLER ? TRANSACTION LICENSEE When the same Broker is Agent for Seller and Agent for Buyer, Broker is a vual Agent. An of isroKer-s aceusees are amv Lunt ^guuw V t. w-o ..??.? a. separate Designated Agents for Buyer and Seller. If the same Licensee is designated for Seller and Buyer, the Licensee is a Dual Agent. i I. Tbi5 Agreement, dated P f o yO , is between 1 SELLER(S): C 2 3 ,A, flcu.? r9fcl 1-5arr~ /?Wa? rk / fe LUU 3 4 called "Seller," and 4 zu, 5 BUY (S): F' r? , t k: 7 , called "Buyer." 8 2. PROPERTY (9-05) Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase: 9 ALL THAT CERTAIN lot or piece of ground with buildings and improvements thereon erected, if any, known as: ti din the . f l of z n^ rf ?o• /'1 12 County of in the Commonwealth of Pennsylvania. Identification (e.g., Tax ID #; Parcel #; ,.13 Lot, Block; Deed Book, Page, Recording Date): +-'r?? ?r% 5-, /0/ n a GAK ?0??9 e- 14 3. TERMS (9-05) / d 15 (A) Purchase Price ^ 4a 11 ?'T t f' clv' P 4?t - r X i1*" F' I 1 TJA 0 t-S 16 U.S. Dollars, 17 which will be paid to Seller by Buyer as follows: 18 1. Cash or check at signing this Agreement: $ -% trJ??G? ' hey 1g' 2. Cash or check within days of the execution of this Agreement: $ 20 3. $ _ 21 4. Cash or cashier's check at time of settlement: $ ( "` C 22 TOTAL $^?1?G ~ 23 (B) Deposits paid by Buyer within 3_ DAYS of settlement will be by cash or cashier's check. Deposits, regardless of the form of payment and 24 the person designated as payee, will be paid in U.S. Dollars, to Broker for Seller (unless otherwise stated here), 25 who will retain 26 deposits in an escrow account until consummation or termination of this Agreement in conformity with all applicable laws and regulations. Any 27 check tendered as deposit monies may be held uncashed pending the acceptance of this Agreement. 28 (C) Seller's written approval to be an-or before ' 29 (D) Settlement to be on, / f' or before if Buyer and Seller agree. 30 (E) Settlement will occur in the county where the Property is located or in an adjacent county, during normal business hours, unless Buyer and 31 Seller agree otherwise. 32 (F) Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated here: 33 34 (G) Payment of transfer taxes will be divided equally between Buyer and Seller unless otherwise stated here: 35 36 (H) At time of settlement, the fallowing will be adjusted pro-rata on a daily basis between Buyer and Seller, reimbursing where applicable: cur- 37 rent taxes (see Information Regarding Real Estate Taxes); rents; interest on mortgage assumptions; condominium fees and homeowner asso- 38 ciation fees; water and/or sewer fees, together with any other lienable municipal service. All charges will be pro-rated for the period(s) cov- 39 ered. Seiler will pay up to and including the date of settlement and Buyer will ay for all days following settlement, unless otherwise stat- 40 ed here: • EXHIBIT 41 Buyer Initials: T ' ?'f % Jy G-r?uu Seller Initials:- Pennsylvania Association of YRIGHT PENNSYLVANIA ASSOCIATION OF REALTORS® 2005 ® REALTORS" 9/05 REALTOO -1 VWwfw RWFiO *WP-O, U 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 4. FIXTURES & PERSONAL PROPERTY (9-05) 43 ' (Ap INCLUDED in this sale are all existing items permanently installed in the Property, free of liens, including plumbing; heating; lighting fix- 44 tures (including chandeliers and ceiling fans); water treatment systems; pool and spa equipment; garage door openers and transmitters; tele- 45 vision antennas; unpotted shrubbery, plantings and trees; any remaining heating and cooking fuels stored on the Property at the time of set- 46 tlement; sump pumps; storage sheds; mailboxes; wall to wall carpeting; existing window screens, storm windows and screen/storm doors; 47 window covering hardware, shades and blinds; awnings; built-in air conditioners; built-in appliances; and the range/oven unless otherwise 8 stated. Also included: rt 'Q rd(40Z ? g >! ;r c a F. _ ,1 49 30/ (B) LEASED items (not owned by Seller): 51 52 (C) EXCLUDED fixtures and items: 53 64 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 5. DATES/TIME IS OF THE ESSENCE (9-05) (A) The settlement-date and all other dates and times referred to for the performance of any of the obligations of this Agreement are of the essence and are binding. (B) For purposes of this Agreement, the number of days will be counted from the date of execution, excluding the day this Agreement was exe- cuted and including the last day of the time period. The Execution Date of this Agreement is the date when Buyer and Seller have indicated full acceptance of this Agreement by signing and/or initialing it. All changes to this Agreement should be initialed and dated. (C) The settlement date is not extended by any other provision of this Agreement and may only be extended by mutual written agreement of the parties. (D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. All pre-printed time periods are negotiable, and may be changed by striking out the pre-printed text and inserting a different time period acceptable to all parties. 6. MORTGAGE CONTINGENCY (9-05) ? WAIVED. This sale is NOT contingent on mortgage financing, although Buyer may still obtain mortgage financing. ELECTED. (A) This sale is contingent upon Buyer obtaining mortgage financing as follows: First Mortgage on the Property Second Mortgage on the Property Loan Amount $ r= -K) Loan Amount $ Minimum Term years Minimum Term years Type of mortgage T Type of mortgage Mortgage lender Mortgage lender 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 Interest rate -%; however, Buyer agrees to accept the Interest rate %; however, Buyer agrees to accept the 74 interest rate as may be committed by the mortgage lender, not to interest rate as may be committed by the mortgage lender, not to 75 exceed a maximum interest rate of? %. exceed a maximum interest rate of %. 76 Discount points, loan origination, loan p`facement and other fees charged Discount points, loan origination, loan placement and other fees "charged 77 by the lender as a percentage of the mortgage loan (excluding any mort- by the lender as a percentage of the mortgage loan (excluding any mort- 78 gage insurance premiums or VA funding fee) not to exceed gage insurance premiums or VA funding fee) not to exceed % (0% if not specified) of the mortgage loan. % (0% if not specified) of the mortgage loan. The interest rate(s) and fee(s) provisions in paragraph 6 (A) are satisfied if the mortgage lender(s) gives Buyer the right to guarantee the interest rate(s) and fee(s) at or below the maximum levels stated. Buyer gives Seller the right, at Seller's sole option and as permitted by law and the mortgage lender(s), to contribute financially, without promise of reimbursement, to the Buyer and/or the mortgage lender(s) to make the above mortgage terms available to Buyer. (B) Within days (10 if not specified) from the Execution Date of this Agreement, Buyer will make a completed, written mortgage appli- cation for the mortgage terms stated above to the mortgage lender(s) identified in paragraph 6 (A), if any, otherwise to a responsible mortgage lender(s) of Buyer's choice. Broker for Buyer, if any, otherwise Broker for Seller, is authorized to communicate with the mortgage lender(s) to assist in the mortgage loan process. (C) Should Buyer furnish false or incomplete information to Seller, Broker(s), or the mortgage lender(s) concerning Buyer's legal or financial status, or fail to cooperate in good faith in processing the mortgage loan application, which results in the mortgage lender(s) refusing to approve a mortgage loan commitment, Buyer will be in default of this Agreement. (D) 1. Mortgage commitment date: 4,7 r 21a/ L., If Seller does not receive a copy of Buyer's mortgage commitment(s) by this date, Buyer and Seller agree to ext ndhe mortgage commitment date until Seller terminates this Agreement by written notice to Buyer. 2. Upon receiving a mortgage commitment, Buyer will promptly deliver a copy of the commitment to Seller. 3. Seller may terminate this Agreement in writing after the mortgage commitment date, if the mortgage commitment(s): a. Is not valid until the date of settlement, OR b. Is conditioned upon the sale and settlement of any other property, OR C. Does not satisfy all the mortgage terms as stated in paragraph 6 (A), OR d. Contains any other condition not specified in this Agreement that is not satisfied and/or removed in writing by the mortgage lender(s) within 7 DAYS after the mortgage commitment date in paragraph 6 (D) (1), other than those conditions that are customari- ly satisfied at or near settlement, such as obtaining insurance and confirming employment status. 4. If this Agreement is terminated pursuant to paragraphs 6 (D) (1) or (3), or the mortgage loan(s) is not obtained for settlement, all deposit monies will be returned to Buyer according to the terns of paragraph 30 and this Agreement will be VOID. Buyer will be responsible for any costs incurred by Buyer for any inspections or certifications obtained according to the terns of this Agreement, and any costs incurred by Buyer for: (1) Title search, title insurance and/or mechanics' lien insurance, or any fee for cancellation; (2) Flood insurance and/or fire insurance with extended cov- erage, mine subsidence insurance, or any fee for cancellation; (3) Appraisal fees and charges paid in advance to mortgage lender(s). Buyer Initials:.: A/S-R Page 2 of 10 Seller Initials: Revised 9/05 79 80 81 82 83 84 85 86 87 BE 89 90 91 02 93 94 95 95 97 98 99 100 101 102 103 104 105 106 107 iflH log, 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 (E) If the mortgage lender(s), or an insurer providing property and casualty insurance as required by the mortgage lender(s), requires repairs to the 1o8 ' Property, Buyer will, upon receiving the requirements, deliver a copy of the requirements to Seller. Within 5 DAYS of receiving the copy 109 of the requirements, Seller will notify Buyer whether Seller will make the required repairs at Seller's expense. 110 1. If Seller makes the required repairs to the satisfaction of the mortgage lender(s) or insurer, Buyer accepts the Property and agrees to the 111 RELEASE in paragraph 27 of this Agreement. 112 2. If Seller will not make the required repairs, or if Seller fails to respond within the time given, Buyer will, within 5 DAYS, notify 113 Seller of Buyer's choice to: 114 a. Make the required repairs, at Buyer's expense, with permission and access to the Property given by Seller, permission and access may 115 not be unreasonably withheld by Seller, OR 116 b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 117 30 of this Agreement. 118 (F) Seller Assist 119 ??TOT APPLICABLE 120 /? APPLICABLE. Seller will pay: 121 ? $ , or % of Purchase Price, maximum, toward Buyer's costs as acceptable to the mortgage lender(s). 122 ? 123 FHANA, IF APPLICABLE (G) It is expressly agreed that notwithstanding any other provisions of this contract, Buyer will not be obligated to complete the purchase of the Property described herein or to incur any penalty by forfeiture of earnest money deposits or otherwise unless Buyer has been given, in accordance with HUDNHA or VA requirements, a written statement by the Federal Housing Commissioner, Veterans Administration, or a Direct Endorsement Lender setting forth the appraised value of the Property of not less than $ (the dollar amount to be inserted is the sales price as stated in this Agreement). Buyer will have the privilege and option of proceeding with consummation of the contract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mort- gage the Department of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property. Buyer should satisfy himself/herself that the price and condition of the Property are acceptable. Warning: Section 1010 of Title 18,. U.S.C., Department of Housing and Urban Development and Federal Housing Administration Transactions, provides, "Whoever for the purpose of ... influencing in any way the action of such Department, makes, passes, utters or publishes any statement, knowing the same to be false ... shall be fined under this title or imprisoned not more than two years, or both." (H) U.S. Department of Housing and Urban Development (HUD) NOTICE TO PURCHASERS: Buyer's Acknowledgement ? Buyer has received the HUD Notice "For Your Protection: Get a Home Inspection." Buyer understands the importance of getting an independent home inspection and has thought about this before signing this Agreement. Buyer understands that FHA will not perform a home inspection nor guarantee the price or condition of the Property. (I) Certification We the undersigned, Seller(s) and Buyer(s) party to this transaction each certify that the terms of this contract for purchase are true to the best of our knowledge and belief, and that any other agreement entered into by any of these parties in connection with this transaction is attached to this Agreement. 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 7. WAIVER OF CONTINGENCIES (9-05) 143 144 If this Agreement is contingent on Buyer's right to inspect and/or repair the Property, or to verify insurability, environmental conditions, 144 145 boundaries, certifications, zoning classification or use, or any other information regarding the Property, Buyer's failure to exercise any of 145 146 Buyer's options within the times set forth in this Agreement is a WAIVER of that contingency and Buyer accepts the Property and agrees to 146 147 the RELEASE in paragraph 27 of this Agreement. 147 148 8. PROPERTY INSURANCE AVAILABILITY (9-05) 148 149 WAIVED. This Agreement is NOT contingent upon Buyer obtaining property and casualty insurance for the Property, although Buyer may 149 150 still obtain property and casualty insurance. 150 151 ? ELECTED. Contingency Period: DAYS (15 if not specified) from the Execution Date of this Agreement. 151 152 Within the Contingency Period, Buyer will make application for property and casualty insurance for the Property to a responsible insurer. Broker 152 153 for Buyer, if any, otherwise Broker for Seller, may communicate with the insurer to assist in the insurance process. If Buyer cannot obtain 153 154 property and casualty insurance for the Property on terms and conditions reasonably acceptable to Buyer, Buyer will, within the Contingency 154 155 Period: 155 156 (A) Accept the Property and agree to the RELEASE in paragraph 27 of this Agreement, OR 156 157 (B) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 30 of this 157 158 Agreement, OR 158 159 (C) Enter into a mutually acceptable written agreement with Seller. 159 160 If Buyer and Seller do not reach a written agreement during the Contingency Period, and Buyer does not terminate this Agreement by 16o 161 written notice to Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph 27 of this Agreement. 161 162 9. INSPECTIONS (9-05) 162 163 (A) Seller will provide access to insurers' representatives and, as may be required by this Agreement, to surveyors, municipal officials, and inspec- ,63 164 tors. If Buyer is obtaining mortgage financing, Seller will provide access to the Property to appraisers and others reasonably required by mort- 164 165 gage lender(s). Buyer may attend any inspections. 165 166 (B) Buyer may make a pre-settlement walk-through inspection of the Property. Buyer's right to this inspection is not waived by any other provision 166 167 of this Agreement. 167 168 (C) Seller will have heating and all utilities (including fuel(s)) on for all inspections. 168 169 (D) All inspectors, including home inspectors, are authorized by Buyer to provide a copy of any inspection report to Broker for Buyer, 169 170 (E) Seller has the right, upon request, to receive without charge a copy of any inspection report from the party for whom it was prepared. 170 171 Buyer Initials: A/S-R Page 3 of 10 Seller Initials: C - 171 Revised 9/05 172. 10. INSPECTION CONTINGENCY OPTIONS (9-05) 172 173 The inspection contingencies elected by Buyer in paragraphs 11-15 are controlled by the Options set forth below. The time periods stated in 173 174 these Options will apply to all inspection contingencies in paragraphs 11-15 unless otherwise stated in this Agreement. 174 175 Option 1. Within the Contingency Period, as stated in paragraphs 11-15, Buyer will: 1.7 ,5 176 1. Accept the Property with the information stated in the report(s) and agree to the RELEASE; inparagraph 27 :ofthis Agreement, OR 176- 177 2. If Buyer is not satisfied with the information stated in the report(s), terminate this Agreement by written notice to Seller, with all deposit + . 178 monies returned to Buyer according to the terms of paragraph 30 of this Agreement, OR, 179 3. Enter into a mutually acceptable written agreement with Seller providing for any repairs or improvements to the Property and/or any. 179 1ao credit to Buyer at settlement, as acceptable to the mortgage lender(s), if any. 180 181 If Buyer and Seller do not reach a written agreement during the specified Contingency Period, and Buyer does not. terminate this 181 182 Agreement by written notice to Seller within that time, Buyer will accept the Property : and agree. to the RELEASE in paragraph 182 183 27 of this Agreement. 183 184 Option 2. Within the Contingency Period, as stated in paragraphs 11-15, Buyer will: 184 185 L Accept the Property with the information stated in the report(s) and agree to the RELEASE in.paragraph 27 of this Agreement,- OR. 185 186 2. If Buyer is not satisfied with the information stated in the report(s), present the report(s) to. Seller:with a Written Corrective Proposal 186 187 ("Proposal") listing corrections and/or credits desired by Buyer. The Proposal may, butis..not required to, include the name,of a prop- 187 188 erly licensed or qualified professional to perform the corrections requested in the Proposal, provisions for payment, including retests, and 18a 189 a projected date for completion of the corrections.,Buyer agrees that Seller will not be held liablefor corrections.that.donot comply with 1a9 190 mortgage lender or governmental requirements if performed in a workmanlike manner according .to the:terms of Buyer's Proposal; or by 19o 191 a contractor selected by Buyer. 191 192 a. Within days (7 if not specified) of receiving Buyer's Proposal, Seller will inform Buyer in writing of Seller's choice to:- 192 193 (1) Satisfy the terms of Buyer's Proposal, OR 193 194 (2) Credit Buyer at settlement for the costs to satisfy the terms of Buyer's Proposal, as acceptable: to, the mortgage lender(s); if any, OR: i94_ . 195 (3) Not satisfy the terms of Buyer's Proposal and not credit Buyer at settlement for the costs to satisfy the terms of Buyer's Proposal. 195 196 b. If Seller agrees to satisfy the terms of Buyer's Proposal or to credit Buyer at settlement as specified above, Buyer accepts the Property 196 197 and agrees to the RELEASE in paragraph 27 of, this Agreement. 197 198 c. If Seller chooses not to satisfy the terms of Buyer's Proposal and not to credit Buyer at settlement as specified above, or if Seller fails 198 199 to choose any option within the time given, Buyer will, within _ days;(5 if not specified): 199 200 (1) Accept the Property with the information stated in the report(s) and agree to the RELEASE- in paragraph 27 of this Agreement, OR 200 201 (2) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to. the terms of para- 201 202 graph 30 of this Agreement, OR 202 203 (3) Enter into a mutually acceptable written agreement with Seller providing for any repairs or improvements to.the Property and/or 203 204 any credit to Buyer at settlement, as acceptable to the mortgage lender(s), if any. 204 205 If Buyer and Seller do not reach a written agreement during the time specified in Option 2, 2. c., and Buyer does not ter- 2o5 206 minate this Agreement by written notice to Seller within that time, Buyer, will accept the Property and agree- % ',the 206 207 RELEASE in paragraph 27 of this Agreement. 207 208 11. PROPERTY INSPECTION CONTINGENCY (9-05) (See Property and Environmental Inspection-Notices); : 20a 209 Buyer understands that property inspections, certifications and/or investigations can be performed by professional contractors;-home: inspectors, 209 210 engineers, architects and other properly licensed or otherwise qualified professionals, and may include, but are not limited to: structural compo- 210 211 nents; roof; exterior windows and exterior doors; exterior siding, fascia, gutters and downspouts; swimming pools, hot tubs and spas; appliances; 211 212 electrical, plumbing, heating and cooling systems; water penetration; environmental hazards (e.g., mold, fungi, indoor air quality, asbestos, under- 212 213 ground storage tanks, etc.); electromagnetic fields; wetlands inspection; flood plain verification; property boundary/square footage verification; 213 214 and any other items Buyer may select. Buyer is advised to investigate easements, deed and use restrictions (including any historic preservation 214 215 restrictions or ordinances) that apply to the Property and to review local zoning ordinances. Other provisions of this Agreement may provide for 215 216 ins ions, certifications and/or investigations that are not waived or altered by Buyer's election here. 216 217 WAIVED. Buyer has the option to conduct property inspections, certifications and/or investigations. Buyer WAIVES THIS OPTION and 217 218 agrees to the RELEASE in paragraph 27 of this Agreement. 218 219 ? ELECTED. Contingency Period: days (15 if not spi cified) from the Execution Date of this Agreement. 219 220 (A) Within the Contingency Period, Buyer, at Buyer's expense, may have inspections, certifications and/or investigations completed by proper- 220 221 ly licensed or otherwise qualified professionals. If Buyer elects to have a home inspection of the Property, as defined in the Pennsylvania Home 221 222 Inspection Law (see Information Regarding the Home Inspection Law), the home inspection must be performed by a full member in good stand- 222 223 ing of a national home inspection association or a person supervised by a full member of a national home inspection association, in accordance 223 224 with the ethical standards and code of conduct or practice of that association, or by a properly licensed or registered professional engineer, or a 224 225 properly licensed or registered architect. This contingency does not apply to the following existing conditions and/or items: 225 226 226 227 227 228 (B) If Buyer is not satisfied with the condition of the Property as stated in the written inspection report(s), Buyer will proceed under one of the fol- 228 229 lowing Options as listed in paragraph 10 within the Contingency Period: 229 230 ? Option 1 230 231 ? Option 2 For the purposes of Paragraph 11 only, Buyer agrees to accept the Property with the results of any report(s) and agrees to 231 232 the RELEASE in paragraph 27 of this Agreement if the total cost to correct the conditions stated in the report(s) is less than 232 233 $ ($0 if not specified) (the "Deductible Amount"). Otherwise, all provisions of paragraph 10, Option 2, shall 233 234 apply, except that Seller will be deemed to have satisfied the terms of Buyer's Proposal if Seller agrees to perform corrections 234 235 or offer credits such that the cumulative cost of any uncorrected or uncredited condition(s) is equal to the Deductible Amount. 235 236 Buyer Initials: A/S-R Page 4 of 10 Seller Initials: , 236 Revised 9/05 237, 12. WOO VEESTATION INSPECTION CONTINGENCY (9-05) 237 238 JJ wAIVED. Buyer has the option to have the Property inspected for wood infestation by an inspector certified as a wood-destroying pests pesti- 238 239 V cede applicator. BUYER WAIVES THIS OPTION and agrees to the RELEASE in paragraph 27 of this Agreement. 239 240 ? ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement. 240 241 (A) Within the Contingency Period, Buyer, at Buyer's expense, may obtain a written "Wood-Destroying Insect Infestation Inspection Report" 241 242 from an inspector certified as a wood-destroying pests pesticide applicator and will deliver it and all supporting documents and drawings pro- 242 243 vided by the inspector to Seller. The report is to be made satisfactory to and in compliance with applicable laws, mortgage lender requirements, 243 244 and/or Federal Insuring and Guaranteeing Agency requirements, if any. The inspection is to be limited to all readily visible and accessible areas , 244 245 of all structures on the Property except fences and the following structures, which will not be inspected: 245 246 246 247 (B) If the inspection reveals active infestation(s), Buyer, at Buyer's expense, may within the Contingency Period, obtain a Proposal from a wood 247 248 destroying pests pesticide applicator to treat the Property. 248 249 (C) If the inspection reveals damage from active or previous infestation(s), Buyer, at Buyer's expense, may within the Contingency Period, obtain 249 250 a written report from a professional contractor, home inspector or structural engineer that is limited to structural damage to the Property caused 25o 251 by wood-destroying organisms and a Proposal to repair and/or treat the Property. 251 252 (D) If Buyer is not satisfied with the condition of the Property as stated in the written inspection report(s), Buyer will proceed under one of the fol- 252 253 lowing Options as listed in paragraph 10 within the Contingency Period: 253 254 ? Option 1 254 255 ? Option 2 255 256 13. STATUS OF RADON (9-05) (see Information Regarding Radon) 256 257 (A) Seller has no knowledge concerning the presence or absence of radon unless checked below: 257 258 ? 1. Seller:has knowledge that the Property was tested on the dates, by the methods (e.g., charcoal, canister,.alphatrack, etc.),. and with the 258 259 results of all tests indicated below: 259 260 DATE TYPE OF TEST RESULTS (picoCuries/liter or working levels) 260 261 261 262 262 263 ? 2. Seller has knowledge that the Property underwent radon reduction measures on the date(s) and by the method(s) indicated below: 263 264 DATE RADON REDUCTION METHOD 264 265 265 266 266 267 COPIES OF ALL AVAILABLE TEST REPORTS will be delivered to Buyer with this Agreement. SELLER DOES NOT WARRANT 267 268 EITHER THE METHODS OR RESULTS OF THE TESTS. 268 269 (B) `RA PN`INSPECTION CONTINGENCY 269 270 WAIVED. Buyer has the option to have the Property inspected for radon by a certified inspector. BUYER WAIVES THIS OPTION and 270 271 agrees to the RELEASE in paragraph 27 of this Agreement. 271 272 ? ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement. 272 273 Within the Contingency Period, Buyer, at Buyer's expense, may obtain a radon test of the Property from a certified inspector. If Seller 273 274 performs any radon remediation, Seller will provide Buyer a certification that the remediation was performed by a properly licensed and 274 275 certified radon mitigation company. 275 276 1. If the written test report reveals the presence of radon below 0.02 working levels or 4 picoCuries/liter (4 pCi/L), Buyer accepts the 276 277 Property and agrees to the RELEASE in paragraph 27 of this Agreement. 277 278 2. If the written test report reveals the presence of radon at or exceeding 0.02 working levels or 4 picoCuries/liter. (4 :pCi/L.),. Buyer will 278 279 proceed under one of the following Options as listed in paragraph 10 within the Contingency Period: 279 280 ? Option 1 280 281 ? Option 2 281 282 14. STATUS OF WATER (9-05) 282 283 (A) Selleresents that the Property is served by: 283 284 i©/Public Water 284 285 ? On-site Water 285 286 ? Community Water 286 287 ? None - , . 287. 288 ? 288 289 (B) WATER SERVICE INSPECTION CONTINGENCY 289 290 ? WAIVED. Buyer has the option to have an inspection of the quality and or quantity of the water system for the Property. BUYER WAIVES 29o 291 THIS OPTION and agrees to the RELEASE in paragraph 27 of this Agreement. 291 292 ? ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement. 292 293 1. Within the Contingency Period, Buyer, at Buyer's expense, may obtain an inspection of the quality and/or quantity of the water sys- 293 294 tem from a properly licensed or otherwise qualified water/well testing company. 294 295 2. If required by the inspection company, Seller, at Seller's expense, will locate and provide access to the on-site (or individual) water 295 296 system. Seller also agrees to restore the Property, at Seller's expense, prior to settlement. 296 297 3. If Buyer is not satisfied with the condition of the water system as stated in the written inspection report(s), Buyer will-proceed under 297 298 one of the following Options as listed in paragraph 10 within the Contingency Period: 298 299 ? Option 1 299 300 ? Option 2 300 301. Buyer Initials: , r- A/S-R Page 5 of 10 Revised 9/05 1 Seller Initials: 301 302. 15. STATUS OF SE ER (9-05) 302 303 (A) Seller • resents that the Property is served by: 303 304 Public Sewer 304 305 ? Individual On-lot Sewage Disposal System (see Sewage Notice 1) 305 306 ? Individual On-lot Sewage Disposal System in Proximity to Well (see Sewage Notice l; see Sewage Notice 4, if applicable) 306 307 ? Community Sewage Disposal System 307 308 ? Ten-Acre Permit Exemption (see Sewage Notice 2) 308 309 ? Holding Tank (see Sewage Notice 3) 309 310 ? None (see Sewage Notice 1) 310 311 ? None Available/Permit Limitations in Effect (see Sewage Notice 5) 311 312 ? 312 313 (B) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY 313 314 ? WAIVED. Buyer has the option to have an inspection of the individual on-lot sewage disposal system for the Property. BUYER 314 315 WAIVES THIS OPTION and agrees to the RELEASE in paragraph 27 of this Agreement. 315 316 ? ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement. 316 317 1. Within the Contingency Period, Buyer, at Buyer's expense, may obtain an inspection of the individual on-lot sewage disposal sys- 317 318 tem from a qualified, professional inspector. 318 319 2. If and as required by the inspection company, Seller, at Seller's expense, will locate, provide access to and empty the individual on- 319 320 lot sewage disposal system. Seller will also restore the Property, at Seller's expense, prior to settlement. 320 321 3. If the inspection report reveals defects that do not require expansion or replacement of the existing individual on-lot sewage disposal 321 322 system, Buyer will proceed under one of the following Options as listed in paragraph 10 within the Contingency Period: 322 323 ? Option 1 323 324 ? Option 2 324 325 4. If the inspection report reveals the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, 325 326 within 25 DAYS of receiving the inspection report, submit a Written Corrective Proposal ("Proposal") to Buyer. The Proposal 326 327 will include, but not be limited to, the name of the company to perform the expansion or replacement; provisions for payment, includ- 327 328 ing retests; and a projected completion date for corrective measures. Within _5 DAYS of receiving Seller's Proposal, or if no 328 329 Proposal is provided within the time given, Buyer will notify Seller in writing of Buyer's choice to: 329 330 a. Agree to the terms of the Proposal, if any, whereupon Buyer accepts the Property and agrees to the RELEASE in paragraph 27 of 330 331 this Agreement, OR 331 332 b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of Para- 332 333 graph 30 of this Agreement. 333 334 c. Accept the Property and the existing system and agree to the RELEASE in paragraph 27 of this Agreement, and, if required by 334 335 any mortgage lender and/or any governmental authority, correct the defects before settlement or within the time required by the 335 336 mortgage lender and/or governmental authority, at Buyer's sole expense, and with permission and access to the Propertygiven by 336 337 Seller. Permission and access may not be unreasonably withheld by Seller. If Seller denies Buyer permission and/or access to cor- 337 338 rect the defects, Buyer may, within 5 DAYS of Seller's denial, terminate this Agreement-by written notice to;Seller, with all 338 339 deposit monies returned to Buyer according to the terms of paragraph 30 of this Agreement. 339 340 16. HOME WARRANTIES (9-05) 340 341 At or before settlement, either party may have the opportunity to purchase a home warranty for the Property from a third-party vendor. Buyer and 341 342 Seller understand that a home warranty for the Property does not alter any disclosure requirements of Seller, will not cover or warrant any pre- 342 343 existing defects of the Property, and will not alter, waive or extend any provisions of this Agreement regarding inspections or certifications that 343 344 Buyer has elected or waived as part of this Agreement. Buyer and Seller understand that the licensee, broker or mortgage lender who orders the 344 345 home warranty may possibly receive a fee paid by the home warranty company. 345 346 17. ZONING CLASSIFICATION & VERIFICATION OF USE CONTINGENCY (9-05) 346 347 (A) Failure of this Agreement to contain the zoning classification (except in cases where the property {and each parcel thereof, if subdividable) is 347 348 zoned solely or primarily to permit single-family dwellings) will render this Agreement voidable at Buyer's option, and, if voided, any deposits 348 349 tendered by the Buyer will be r fumed to tle Buyer with glut any requirement for court action. + ? 349 350 Zoning Classification: -? G < , ,; ,, 4 J r'n / / 44 A g ? Z 350 351 (B) Contingency Period: days (7 if not specified) from the Execu on Date of this Agreement. 351 352 Within the Contingency Period, Buyer, at Buyer's expense, may verify that the present use ( ) 352 353 of the Property is permitted. In the event the present use is not permitted, Buyer will, within the Contingency Period, give Seller written 353 354 notice that the present use of the Property is not permitted and that Buyer will: 354 355 1. Accept the Property and agree to the RELEASE in paragraph 27 of this Agreement, OR 355 356 2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 30 of 356 357 this Agreement. 357 358 If Buyer fails to respond within the Contingency Period or does not terminate this Agreement by written notice to Seller within that 358 359 time, Buyer will accept the Property and agree to the RELEASE in paragraph 27 of this Agreement. 359 360 18. NOTICES, ASSESSMENTS & CERTIFICATES OF OCCUPANCY (9-05) 360 361 (A) Seller represents, as of the date Seller signed this Agreement, that no public improvement, condominium or homeowner association assessments 361 362 have been made against the Property which remain unpaid, and that no notice by any government or public authority has been served upon Seller 362 363 or anyone on Seller's behalf, including notices relating to violations of zoning, housing, building, safety or fire ordinances that remain uncor- 363 364 rected, and that Seller knows of no condition that would constitute a violation of any such ordinances that remain uncorrected, unless otherwise 364 365 specified here: 385 366 (B) Seller knows of no other potential notices (including violations) and/or assessments except as follows: 366 367 367 368 Buyer Initials: ? `? t' ; A/S-R Page 6 of 10 Seller Initials: ?.% '- 368 i Revised 9/05 369 (C) In the event any notices (including violations) and/or assessments are received after Seller has signed this Agreement and before settlement, 369 370 Seller will provide a copy of the notices and/or assessments to Buyer and will notify Buyer in writing within 5 DAYS of receiving the 370 371 notices and/or assessments that Seller will: 371 372 1. Fully comply with the notices and/or assessments at Seller's expense before settlement. If Seller fully complies with the notices and/or 372 373 assessments, Buyer accepts the Property and agrees to the RELEASE in paragraph 27 of this Agreement. OR 373 374 2. Not comply with the notices and/or assessments. If Seller chooses not to comply with the notices and/or assessments, or fails within the 374 375 time given to notify Buyer whether Seller will comply, Buyer will notify Seller in writing within _5 DAYS that Buyer will: 375 376 a. Comply with the notices and/or assessments at Buyer's expense, accept the Property, and agree to the RELEASE in paragraph 27 of 376 377 this Agreement, OR 377 378 b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 378 379 30 of this Agreement. 379 380 If Buyer fails to respond within the time stated in paragraph 18 (C) (2) or fails to terminate this Agreement by written notice to 380 381 Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph 27 of this Agreement. 381 382 (D) If required by law, within 30 DAYS from the Execution Date of this Agreement, but in no case later than 15 days prior to settlement, Seller 382 383 will order at Seller's expense a certification from the appropriate municipal department(s) disclosing notice of any uncorrected violations of zon- 383 384 ing, housing, building, safety or fire ordinances and/or a certificate permitting occupancy of the Property. If Buyer receives a notice of any 384 385 required repairs/improvements, Buyer will promptly deliver a copy of the notice to Seller. 385 386 1. Within 5 DAYS of receiving notice from the municipality that repairs/improvements are required, Seller will notify Buyer in writ- 386 387 ing that Seller will: 387 388 a. Make the required repairs/improvements to the satisfaction of the municipality. If Seller makes the required repairs/improvements, 388 389 Buyer accepts the Property and agrees to the RELEASE in paragraph 27 of this Agreement. OR 389 390 b. Not make the required repairs/improvements. If Seller chooses not to make the required repairs/improvements, Buyer will notify 390 391 Seller in writing within 5 DAYS that Buyer will: 391 392 (1) Make the repairs/improvements at Buyer's expense, with permission and access to the Property given by Seller, which will not 392 393 be unreasonably withheld, OR 393 394 (2) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of para- 394 395 graph 30 of this Agreement. 395 396 If Buyer fails to respond within the time stated in paragraph 18 (D) (1) (b) or fails to terminate this Agreement by written notice 396 397 to Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph 27 of this Agreement, and Buyer 397 398 accepts the responsibility to perform the repairs/improvements according to the terms of the notice provided by the municipality. 398 399 2. If Seller denies Buyer permission to make the required repairs/improvements, or does not provide Buyer access before settlement to make 399 400 the required repairs/improvements, Buyer may, within 5 DAYS, terminate this Agreement by written notice to Seller, with all deposit 400 401 monies returned to Buyer according to the terms of paragraph 30 of this Agreement. 401 402 3. If repairs/improvements are required and Seller fails to provide a copy of the notice to Buyer as required in paragraph 18 (D), Seller will 402 403 perform all repairshinprovements as required by the notice at Seller's expense. Paragraph 18 (D) (3) will survive settlement. 403 404 (E) Access to a public road may require issuance of a highway occupancy permit from the Department of Transportation. 404 405 19. TITLE, SURVEYS & COSTS (9-05) 405 406 (A) The Property will be conveyed with good and marketable title as is insurable by a reputable title insurance company at the regular rates, free and 406 407 clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing deed restrictions; historic preservation 407 408 restrictions or ordinances; building restrictions; ordinances; easements of roads; easements visible upon the ground; easements of record; and 408 409 privileges or rights of public service companies, if any. 409 410 (B) Buyer will pay for the following: (1) Title search, title insurance and/or mechanics' lien insurance, or any fee for cancellation; 41o 411 (2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, or any fee for cancellation; (3) Appraisal fees and 411 412 charges paid in advance to mortgage lender(s); (4) Buyer's customary settlement costs and accruals. 412 413 (C) Any survey or surveys required by the title insurance company or the abstracting attorney for preparing an adequate legal description of the 413 414 Property (or the correction thereof) will be obtained and paid for by Seller. Any survey or surveys desired by Buyer or required by the mortgage 414 415 lender will be obtained and paid for by Buyer. 415 416 (D) If Seller is unable to give a good and marketable title and such as is insurable by a reputable title insurance company at the regular rates, as specified 416 417 in paragraph 19 (A), Buyer will: 417 418 1. Accept the Property with such title as Seller can give, with no change to the purchase price, and agree to the RELEASE in paragraph 27 of this 41e 419 Agreement, OR 419 420 2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 30 of 420 421 this Agreement. Upon termination, Seller will reimburse Buyer for any costs incurred by Buyer for any inspections or certifications obtained 421 422 according to the terms of this Agreement, and for those items specified in paragraph 19 (B) items (1), (2), (3) and in paragraph 19 (C). 422 423 (E) The Property is not a "recreational cabin" as defined in the Pennsylvania Construction Code Act unless otherwise stated here (see Information 423 424 Regarding Recreational Cabins): 424 425 20. CONDOMINIUM/PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) RESALE NOTICE (9-05) 425 426 ? NOT APPLICABLE 426 427 ? APPLICABLE: CONDOMINIUM. The Property is a unit of a condominium that is primarily run by a unit owners' association. §3407 of the 427 428 Uniform Condominium Act of Pennsylvania (see Information Regarding Condominiums and Planned Communities) requires Seller to famish 428 429 Buyer with a Certificate of Resale and copies of the condominium declaration (other than plats and plans), the bylaws and the rules and regula- 429 430 tions of the association. 430 431 '?Q' APPLICABLE: PLANNED COMMUNITY (HOMEOWNER ASSOCIATION). The Property is part of a planned community as defined by 431 432 the Uniform Planned Community Act (see Information Regarding Condominiums and Planned Communities). §5407(a) of the Act requires 432 433 Seller to furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws the rules and regulations of the association, and 433 434 a Certificate containing the provisions set forth in §5407(a) of the Act. 434 1 435 Buyer Initials: A/S-R Page 7 of 10 Seller Initials: I /e 435 Revised 9/05 436 THE FOLLOWING APPLIES TO PROPERTIES THAT ARE PART OF A CONDOMINIUM OR A PLANNED COMMUNITY. 436 43f (A) Within ' 15 DAYS from the Execution Date of this Agreement, Seller, at Seller's expense, will request from the association a Certificate of 437 438 Resale and any other documents necessary to enable Seller to comply with the relevant Act. The Act provides that the association is required to 438 439' provide these documents within 10 days of Seller's request. 439 440 (B) Seller will promptly deliver to Buyer all documents received from the association. Under the Act, Seller is not liable to Buyer for the failure of 440 441 the association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for any incorrect information provided by the associ- 441 442 ation in the Certificate. 442 443 - (C) The Act provides that Buyer may declare this Agreement VOID at any time before Buyer receives the association documents and for 5 days after 443 444 receipt, OR until settlement, whichever occurs first. Buyer's notice to Seller must be in writing; upon Buyer declaring this Agreement void, all 444 445 deposit monies will be returned to Buyer according to the terms of paragraph 30 of this Agreement. 445 446 (D) If the association has the right to buy the Property,(right of first refusal), and the association exercises that right, Seller will reimburse Buyer for 446 447 any costs incurred by Buyer for any inspections or certifications obtained according to the terms of the Agreement, and any costs incurred by Buyer 447 448 for: (1) Title search; title insurance and/or mechanics' lien insurance, or any fee for cancellation; (2) Flood insurance and/or fire insurance with 448 449 extended coverage, mine subsidence insurance, or any fee for cancellation; (3) Appraisal fees and charges paid in advance to mortgage lender(s). 449 460 21. MAINTENANCE & RISK OF LOSS (9-05) 450 451 (A) Seller will maintain the Property, grounds, fixtures and personal property specifically listed in this Agreement in its present condition, normal 451 452 wear and tear excepted. 452 453 (B) If any system or appliance included in the sale of the Property fails before settlement, Seller will: 453 454 1. Repair or replace the failed system or appliance before settlement, OR 454 -455 2. Provide prompt written notice to Buyer of Seller's decision to: 455 456 a. Credit Buyer at settlement for the fair market value of the failed system or appliance, as acceptable to the mortgage lender(s), if any, OR 456 457 b. Not repair or replace the failed system or appliance, and not credit Buyer at settlement for the fair market value of the failed system 457 456 or appliance. - 458 459 3. If Seller does not repair or replace the failed system or appliance or agree to credit Buyer for its fair market value, or if Seller fails to noti- 459 460 fy Buyer of Seller's choice, Buyer will notify Seller in writing within 5 DAYS or before settlement, whichever is earlier, that Buyer 460 461 will: 461 462 a. Accept the Property and agree to the RELEASE in paragraph 27 of this Agreement, OR 462 463 b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 463 464 ' 30 of this Agreement: 464 465 (C) Seller bears the risk of loss' from fire or other casualties until settlement. If any property included in this sale is destroyed and not replaced, Buyer will: 465 466 1. Accept the Property in its then current condition together with the proceeds of any insurance recovery obtainable by Seller, OR 466 467 2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 30 of 467 468 this Agreement. 468 469 22. COAL NOTICE (Where Applicable) 469 470 THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHTS OF SUPPORT UNDERNEATH THE SURFACE LAND 470 471 DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL SUCH COAL AND 471 472" IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. (This 472 473 notice is set forth in the manner provided in Section 1 of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges that he may not be obtaining the 473 474 right of protection against' subsidence resulting from coal mining operations, and that the property described herein may be protected from damage 474 475 due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgement is made for the purpose 475 476 of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27, 1966" Buyer agrees 476 477 to sign the deed from Seller which deed will contain the aforesaid provision. 477 478 23. POSSESSION (9-05) 478 479 (A) Possession is to be delivered by deed, keys and: 479 480 1. Physical possession to vacant Property free of debris, with all structures broom-clean, at day and time of settlement, AND/OR 480 481 2. Assignment of any existing lease(s), together with any security deposits and interest, at day and time of settlement, if Property is leased at 481 482 the execution of this Agreement, unless otherwise stated in this Agreement. 482 483 (B) Buyer will acknowledge existing lease(s) by initialing the lease(s) at the execution of this Agreement, unless otherwise specified herein. 483 484 (C) Seller will not enter into any new leases, extensions of existing leases or additional leases for the Property without the written consent of Buyer. 484 485 24. RECORDING (9-05) This Agreement will not be recorded in the Office of the Recorder of Deeds or in any other office or place of public record. 485 486 If Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement. 486 487 25. ASSIGNMENT (9-05) This Agreement is binding upon the parties, their heirs, personal representatives, guardians and successors, and to the extent 487 488 assignable, on the assigns of the parties hereto. Buyer will not transfer or assign this Agreement without the written consent of Seller unless other- 488 489 wise stated in this Agreement. 489 490 26. GOVERNING LAW, VENUE & PERSONAL JURISDICTION (9-05) 490 491 (A) The validity and construction of this Agreement, and the rights and duties of the parties, will be governed in accordance with the laws of the 491 492 Commonwealth of Pennsylvania. 492 493 (B) The parties agree that any dispute, controversy or claim arising under or in connection with this Agreement or its performance by either party 493 494 shall be decided exclusively by and in the state or federal courts sitting in the Commonwealth of Pennsylvania. 494 495 27. RELEASE (9-05) 495 496 Buyer releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES and any OFFICER or 496 497 PARTNER of any one of them and any other PERSON, FIRM or CORPORATION who may be liable by or through them, from any and 497 498 all claims, losses or demands, including, but not limited to, personal injury and property damage and all of the consequences thereof, whether 498 499 known or not, which may arise from the presence of termites or other wood-boring insects, radon, lead-based paint hazards, mold, fungi or 499 500 indoor air quality, environmental hazards, any defects in the individual on-lot sewage disposal system or deficiencies in the on-site water serv- 500 501 ice system, or any defects or conditions on the Property. Should Seller be in default under the terms of this Agreement, or in violation of any 501 502 seller disclosure law or regulation, this release does not deprive Buyer of any right to pursue any remedies that may be available under law 502 503 or equity. This release will survive sett ement. p 503 504 , / iti B I l uyer n a s: A/S-R Page 8 of 10 Seller Initials: G C....- 504 12rviarrl oHns 5m 28. REPRESENTATIONS (9-05) 505 509 (A) All representations, claims, advertising, promotional. activities, brochures or plans of any kind made. by Seller, Brokers, their licensees, employ- Sob 507 ees, officers or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. This Agreement contains the 5o7 506 whole agreement between Seller and Buyer, and there are no other terms, obligations, covenants, representations, statements or conditions, oral 508 509 or otherwise, of any kind whatsoever concerning this sale. This Agreement will not be altered, amended, changed or modified except in writing 5o9 510 executed by the parties. 5;0 =t1 (B) Unless otherwise stated in this Agreement, Buyer has inspected the Property (including fixtures and any personal property specifically 511 512 listed herein) before signing this Agreement or has waived the right to do so, and agrees to purchase the Property IN ITS PRESENT 512 513 CONDITION. Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made an independent exam- 513 514 ination or determination of the structural soundness of the Property, the age or condition of the components, environmental conditions, $14 515 the permitted uses or of conditions existing in the locale where the Property is situated; nor have they made a mechanical inspection of 5'i5 516 any of the systems contained therein. 516 517 (C) Any repairs required by this Agreement will be completed in a workmanlike manner. 517 518 (D) Broker(s) have provided or may provide services to assist unrepresented parties in complying with this Agreement. 516 519 29. DEFAULT (9-05) 519 520 (A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer: 520 521 1. Fail to make any additional payments as specified in paragraph 3, OR 521 522 2. Furnish false or incomplete information to Seller, Broker(s), or any other party identified in this Agreement concerning Buyer's legal or 522 523 financial status, OR 523 524 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement. 524 525 (B) Unless otherwise checked in paragraph 29 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies: 525 526 1. On account of purchase price, OR 526 527. 2. As monies to be applied to Seller's damages, OR 527 528 3. As liquidated damages for such breach. 528 529 (C)>C SELLER IS LIMITED TO RETAINING SUMS PAID BY BUYER, INCLUDING DEPOSIT MONIES, AS LIQUIDATED DAMAGES. 529 530 (D If Seller retains all sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 29 (B) or (C), Buyer and Seller 530 531 are released from further liability or obligation and this Agreement is VOID. 531 532 30. TERMINATION & RETURN OF DEPOSITS (9-05) 532 533 (A) Where Buyer terminates this Agreement pursuant to any right granted by this Agreement, all deposit monies paid on account of purchase price 533 534 will be returned to Buyer and this Agreement will be VOID. The broker holding the deposit monies may only release the deposit monies accord- 534 535 ing to the terms of a fully executed written agreement between Buyer and Seller and as permitted by the Rules and Regulations of the State Real 535 53S Estate Commission. 536 537 (B) If there is a dispute over entitlement to deposit monies, a broker is not legally permitted to determine if a breach occurred or which party is enti- 537 538 tled to deposit monies. A broker holding the deposit monies is required by the Rules and Regulations of the State Real Estate Commission to 536 539 retain the monies in escrow until the dispute is resolved. In the event of litigation over deposit monies, a broker will distribute the monies accord- 539 540 ing to the terms of a final order of court or a written agreement of the parties. Buyer and Seller agree that, if any broker or affiliated licensee is 546 541 joined in litigation regarding deposit monies, the attorneys' fees and costs of the broker(s) and licensee(s) will be paid by the party joining them. 541 542 31. REAL ESTATE RECOVERY FUND (9-05) 542 543 A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate licensee 543 544 owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exhausting all legal 544 545 and equitable remedies. For complete details about the Fund, call (717) 783-3658 or (800) 822-2113 (within Pennsylvania) and (717) 783-4854 (out- 545 546 side Pennsylvania). 546 547 32. MEDIATION (9-05) 547 548 (A) Unless otherwise checked in paragraph 32 (D), Buyer and Seller will submit all disputes or claims that arise from this Agreement to mediation 548 549 in accordance with the Rules and Procedures of the Home Sellers/Home Buyers Dispute Resolution System. Any agreement reached through 549 550 mediation and signed by the parties will be binding (see Information Regarding Mediation). 550 551 (B) Buyer and Seller have received, read, and understand the Rules and Procedures of the Home Sellers/Home Buyers Dispute Resolution System. 55I 552 (C) Any agreement to mediate disputes or claims arising from.this Agreement will survive settlement. E52 553 (D) ? MEDIATION IS WAIVED. Buyer and Seller understand that they may choose to mediate at a later date should a dispute or claim arise, 55;1 554 but that there will be no obligation for any party to do so. 584 555 33. RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT NOTICE (Required for properties built before 1978) (9-05) 555 556 Lead-Based Paint Hazards Disclosure Requirements: The Residential Lead-Based Paint Hazard Reduction Act requires any seller of prop- 556 557 erty built before 1978 to provide the buyer with an EPA-approved lead hazards information pamphlet titled Protect Your Family from Lead in Your 557 556 Home and to disclose to the buyer and the broker(s) the known presence of lead-based paint and/or lead-based paint hazards in or on the proper- 5,58 559 ty being sold, along with the basis used for determining that the hazards exist, the location of the hazards, and the condition of painted surfaces. 559 560 Any seller of a pre-1978 structure must also provide the buyer with any records or reports available to the seller regarding lead-based paint and/or 560 561 lead-based paint hazards in or about the property being sold, the common areas, or other residential dwellings in multi-family housing. Before a 501 562 buyer is obligated to purchase any housing constructed prior to 1978, the Act requires the seller to give the buyer 10 days (unless buyer and sell- 552 563 er agree in writing to another time period) to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint 563 564 hazards. The opportunity to conduct a risk assessment or inspection may be waived by the buyer, in writing. Neither testing nor abatement is 564 K5 required of the seller. Housing built in 1978 or later is not subject to the Act. 565 565 NOT APPLICABLE. Property was built in 1978 or later. -66 567 ? APPLICABLE. Property was built before 1978. Broker must attach the Lead-Based Paint Hazards Disclosure and Inspection 567 51:1; Contingency Addendum (PAR Form LPA) or another acceptable form with the information required by the Act, and provide Buyer 56P 565 the pamphlet Protect Your Family from Lead in Your Home. Buyer(s) must initial below that they have received both documents: 553 570 -> Lead-Based Paint Hazards Disclosure and Inspection Contingency Addendum (attached as part of this Agreement). 571 -01- Protect Your Family from Lead in Your Horne y; v t' 572 Buyer Initials: .?I AIS-R Page 9 of 10 Seller Initials: 72 Revised 9/05 73 34. SPECIAL CLAUSES (1-02) 572 4A) The following are part of this Agreement if checked: 574 575 ? Sale & Settlement of Other Property ? Settlement of Other Property Contingency Addendum (PAR Form SOP) 575 576 Contingency Addendum (PAR Form SSP) ? Tenant-Occupied Property Addendum (PAR Form TOP) ' ? 576 51 7 577 ? Sale & Settlement of Other Property Contingency W 1 578 with Right to Continue Marketing 578 579 Addendum(PAR Form SSP-CM) 560 (B) -7eW /?D.»G bt/itr?^q,n?y / i 582 582 583 583 584 584 585 585 536 586 587 587 588 588 589 589 590 590 591 591 592 592 593 593 594 594 595 585 596 596 597 597 598 Buyer and Seller acknowledge receipt of a copy of this Agreement at the time of signing. 598 599 NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Parties to this transaction are advised to consult 599 boo an attorney before signing if they desire legal advice. 600 6ol Return by facsimile transmission (FAX) of this Agreement, and any addenda and amendments, bearing the signatures of all parties, constitutes 501 6o2 acceptance by the parties. 602 603 U?J B as received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336. 603 604 Bu has received a statement of Buyer's estimated closing costs before signing this Agreement. information in this Agreement lanator d and understands the notices and ex re h 604 605 6o5 . p y uyer as a 606 ? Buyer has received a Seller's Property Disc1??11?S?tatement before signing this Agreement, if required by law (see Information Regarding 6o6 607 Estate Seller Disclosure Law). t). i i h f 607 sob ore s gn ng t is Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller is holding deposit money) be 608 609 Agreement. 609 61o BUYER'S G ADDRESS: 16 /0 Ile /Y7 loe f+? h-7-- 610 611 ? t? - i !? 611 512 WITNESS /a'Y'', BUYER DATE t ?6;27 C126 a°2 813 WITNESS .__ BUYER DATE a NCO 513 614 WITNESS BUYER DATE 514 615 Seller has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336. 515 616 Seller has received a statement of Seller's estimated closing costs before signing this Agreement. cis Err Seller has read and understands the notices and explanatory information in this Agreement. J 51g 618 SELLER'S MAILING ADDRESS: L' cgd.5`? G /?? ?uf''? .?o.a ??,,i "/ e Z o w?.+^/fhN? big GUfiL?1Z fro ?< <giAe_ 62o WITNESS_ -? ;'rw"+ SELLER 1. ?f DATE rib 620 621 WITNESS SELLER DATE 621 6z? WITNESS SELLER DATE 62' A/S-R Page 10 of 10 Revised 9/05 BUYER'S COPY Custer Homes, Inc. Contract Specifications for: GF-005 Decorated Model Crandon Farms 4800 Oakmont Green [May 11, 2005] GF-005 Specifications.doc EXHIBIT B: CUSTER HOMES, INC: INITIAL CONSTRUCTION SPECIFICATIONS & OPTIONS OWNERS: GF-005 DECORATED MODEL DATE: MAY 11, 2005 JOB #: GF-005 LOT #: LOT #5 SUBDIVISION & TOWNSHIP: GRANDON FARMS, HAMPDEN TOWNSHIP 100 OVERVIEW: APPROX. SQUARE FOOTAGE: LOWER LEVEL UNFINISHED APPROX. 1,770 SQ. FT. LOWER LEVEL FINISHED APPROX. 0 SQ. FT. 1ST FLOOR APPROX. 1,816 SQ. FT. 2ND FLOOR APPROX. 632 SQ. FT. 3RD FLOOR WALK-UP APPROX. 0 SQ. FT. GARAGE(S) APPROX. 467 SQ. FT. VERANDA APPROX. 0 SQ. FT. FRONT ENTRY APPROX. 25 SQ. FT. SIDE ENTRY APPROX. 0 SQ. FT. REAR DECK APPROX. 168 SQ. FT. LANAI APPROX. 0 SQ. FT. COVERED TERRACE APPROX. 0 SQ. FT. PATIO(S) APPROX. 32 SQ. FT. LOT SIZE: 13.264 SQ. FT. SUMMARY: 2,450 SQ. FT. HEATED (CALCULATED TO EXTERIOR OF WALL) 3 BEDROOMS 2 FULL & 1 HALF BATHS 2 CAR GARAGE (467 SQ. FT.) TOTAL SQ. FT. UNDER ROOF: APPROX 4,712 SQ.FT 2 ?t°i GF-005 Specifications.doc PART A - CONSTRUCTION SPECIFICATIONS GENERAL CONDITIONS: 200 PERFORMANCE GUIDELINES Builder shall provide all necessary labor and materials and perform all work required to complete the building within the scope of these specifications and in accordance with the plans attached hereto and made a part hereof. Builder and all sub-contractors shall comply with all building and subdivision ordinances and sanitary laws applicable to this work. All work shall meet or exceed guidelines as contained in The National Association of Homebuilders "Residential Construction Performance Guidelines for Professional Builders and Remodelers" 2000 Edition. Builder shall be entitled to make field adjustments as it so determines during the building process if there are errors or discrepancies in the plans, specifications, drawings or dimensions, and/or in order to comply with any applicable building codes. Major errors or discrepancies will be brought to owners attention. Builder and owner together shall establish the location of the building and the grade level. The builder is responsible for the. laying out of the building. 205 INSURANCE Builder to provide General Liability Insurance and Workers Compensation Insurance during construction.. Owner to provide Homeowners Insurance to cover the lot and the structure as it is built. 210 CLEARING / GRADING / EXCAVATION The precise clearing limits will be defined on-site with the owners -- Due to the likelihood of damage, trees within 15' of the house and 6' of the drive will be removed. When saving trees, due to the type of soil conditions in this area, trees that are disturbed within their "drip line" will likely suffer shock or could ultimately die. Owner is responsible for any/all tree removal after foundation excavation begins. Additional Lot clearing other than the 15' around the house - None ®, Yes ? - Describe Builder to install silt fence for erosion protection, if necessary, as required. 3 Initials GF-005 Specifications.doc Removing selected or dead trees outside of the building envelop is excluded from this contract and will be an additional charge or the landscapers responsibility (& part of the landscaping allowance) if requested. All top soil, if any exists, from immediate area of the building and approximately 10' around home shall be scraped and piled on the lot away from the building site. Excavation for footers shall extend to solid undisturbed earth, at least 6" below local frost level. All disturbed areas of the lot shall be rough graded using existing material. Extra charges will be incurred if material needs to be hauled to or from the site. Bearing soil, type: undisturbed or compacted Expected problems - None 220 BACKFILL Includes: Around perimeter of foundation using existing material Additional soil being planned to be hauled to/from site (billed at a'per truckload' rate): None ®, Yes ? - Quantity 0. Extra charge per truckload is $45.00 if required 225 FINAL GRADE Grade will be set at least 8" below top of foundation Builder will get final grade to within 4"+/- of where the landscaper will take over. It is the landscaper's responsibility (& part of the landscaping allowance) for final finish grade, insuring proper drainage runoff, to include any additional grading around patios, driveways, sidewalks, and the constructing of any berms. Note: Final Grade, to include mulch, should never cover any wood siding, vinyl siding, Dryvit siding or any other materials susceptible to rot or decay. 230 FOOTINGS Material: 3.000 psi concrete Size: 8" x 16" under 8" walls Rebar: two (22) - #4 235 FOUNDATION Basement walls: Type: Concrete Block (w/parging) ? Poured Concrete Height of Walls: 8,0 9' ? 10' ? Other - Thickness of. Walls: 8" ® 10"0 Other 10" where brick above 4 ? Initials- GF-005 Specifications.cloc Foundation veneer (where exposed): as per plan Concrete ? Parging ? Siding Stucco ? Brick ? Other - Stone ? Crawl Space walls: Type: Concrete Block (w/parging) ? Poured Concrete ? Height of Walls: 32" ? 40" (__1 48" ? Other Thickness of Walls: 8" ? 10"? Other, Vents: Metal ? N/A ? Access Door(s): Quantity: Material: Size: 24"x 24" ? 24"x 32" ? 24"x 48" ? Frost Walls Type: Concrete Block Ewh arging) ® Poured Concrete ? Height of Walls: 32" ® 40" ? 48" ? Other Thickness of Walls: 8" ® 10"? Other 240 DAMPPROOFING Dampproofing: Tar ® Tuff R or equal ? Location: On all basement and crawlspace foundation walls Footing Drains: 16" (+/-) of gravel and 4" perforated pipe connected to low point of Iot 245 RETAINING WALLS NONE Type: Concrete Block (w/parging)? Height of Walls: 8, ? Thickness of Walls: 8" ? Length of Wall: Location(s): Poured Concrete ? Other 9,0 10'0 Other _ 10"? Other 250 WATER -? a Public (Distance 40' +/- to lateral) Well ? (Allowance Item - see section "C") Water Treatment ? (Allowance Item - see section "C") 255 SEWAGE DISPOSAL Public ® / (Distance 40' +/- to lateral) First Floor Gravity: Yes ®, No ? Basement Gravity: Yes)9, No ?, No Service Sewer Ejector Pump required: Yes ? size: No ? On-site ? (Allowance Item - see section "C") 5 ? Initials GF-005 Specifications.doc 260 SLABS Garage Stone Base: 4" + - Vapor Barrier: None ?, 4 mil plastic ?, 6 mil plastic Material: Plain concrete w/sealer. 3.500 psi, sloped 1-1/2" to floor drain Thickness: 5" +1m Floor Drain(s): Quantity one connected to low point of lot Rebar: 6" x 6" reinforcing wire Basement Stone Base: 1:_±L Vapor Barrier: None ?, 4 mil plastic ?, 6 mil plastic Material: Plain Concrete. 3.500 psi Thickness: 4" +/- Floor Drain(s): Quantity one connected to low point in lot Crawl Space ? 3"+/- stone base with 6 mil vapor barrier ? 3"+/- stone base with 6 mil vapor barrier and 3" of concrete ? 300 FRAMING Sill Material: 2x4 and 2x6 where indicated, treated SPF Sill Sealer: 1/8" x 6" foam Exterior Wall: 2x4 and 2x6 where indicated Spruce Pine Flr, spaced 16" o c unless noted otherwise Interior Wall: 2x4 Spruce Pine Fr. spaced 16" o.c., unless noted otherwise Plates: Single bottom plate, double top late Floor system: 2"x10" SPF® 2"x 12" SPF? Wood "I" Joists[--] Truss? Joists, girders, walls: per plans Wall Sheathing: 1" R-board (1/2" R-board & 7/16" OSB where bracing is necessary) Building Wrap No ?, Yes ® Type: Twek or Equal Subfloor: 3/4" Advantech MG or Equal -- glued and, nailed Bridging: wood bridging as required -by code Ceiling Joists: 2x6 Spruce Pine Fir, spaced 24" o.c.. above all areas not trussed Attic access: 2'x 3' Danel located in loft Wall Heights: Lower Level Floor 81+/- 1't Floor 9' +/- 2nd Floor 81+1- Garage 9'-6" +/- Weight Bearing Headers: Each end of headers to be securely bearing on at least one jack stud. Opening 2'- 6' Header size 2"x10" SPF Opening 6'-12' Header size 2"42" SPF Initials ?? GF-005 Specifications.doc Opening over 12' Header size as required Roof system: 2"x8" SPF 24" o.c. ?, 16" o.c. ®, above All areas except Great Room,. 2"x12" Hem Fir 24" O.C. ?, 16" o.c. ®, above Great Room, trusses ? above If hip roof, hip rafter size 2" x 12", Hem Fir Roof sheathing: 5/8" OSB with 30 lb felt paper 500 INSULATION Material: Fiberglass Batts and Cellulose or Fiberglass Blown Air leakage prevention: Sugerseal caulking and foam Location : Flat ceiling areas R-38 blown, batts to be used in selected areas Cathedral/Vaults R-38 batts Exterior walls R-1 batts Ext. kneewalls R-19 batts Basement/Crawl space ceilings R-21 batts Exposed basemenet walls none Garage Walls none Garage Ceiling R-38 batts where living space above Sound attenuation: Powder Room Bedrooms ®, Bathrooms ®, Study ?, Media Room ?, Laundry room Other: All drain g_ige chase areas in walls and ceilings Options: none 7 Initials GF-005 Specifications.doc PART 6 - CLIENT SELECTED SPECIFICATIONS 310 ROOFING Architectural Shingles: Manufacturer: Tamko or Equal Style: 30-year Warranty: 30-year ®, 40-year ?, Other Color: Weathered Wood Cap Shingles: Manufacturer: Tamko or Equal Style: 30-year Warranty: 30-year 40-year ?, Other Color: Weathered Wood Ice Guard: No ?, Yes ® one row at gutter line and valleys Flashing: Coil Stock to match drip edge Drip edge: Material: Aluminum Manufacturer: Alcoa Color: Almond Ventilation: Vented ridge ®, Roof vents ® quantity 3 (Also refer to section 365 Exterior Trim) Extras: None Rubber Roof ? Location(s) Standing Seam ? Manufacturer Color Location(s) Copper ? Manufacturer Location(s) 315 GUTTER/DOWNSPOUTS Material: Aluminum & Other: Size of Gutter: 5" ®, Oversize ?, Other: Size of Downspouts: 2"x3" Oversize ?, Other: Manufacturer: Enalert Color: Almon Downspouts. next to basement foundation, sidewalks, patios and driveway will be connected to underground drain pipes and discharged as site conditions allow. All other downspouts will discharge at grade. Gutter Guards: None ®, Vinyl mesh ?, Gutter helmet ?, Other: 320 EXTERIOR VENEERS Front: Vinyl Siding ®, Brick Stucco ?, Stone ?, Other: Right side: Vinyl Siding Brick ?, Stucco ?, Stone ?, Other: Left side: Vinyl Siding Brick ?, Stucco ?, Stone ?, Other: Rear: Vinyl Siding ®, Brick ?, stucco ?, Stone ?, Other: 8 Initials ' GF-005 Specifications.doc Chimney: None Vinyl Siding ?, Brick ?, Stucco ?, Stone ?, Other: Dormers: None Vinyl Siding ?, Brick ?, Stucco ?, Stone ?, Other: Vinyl Siding: Manufacturer: ® Certainteed, ? Norandex, Other ? Type: Main rest Size: Double 4 ®, Double 5 ?, Other: Style: Bevel ?, Dutch Lap Other: Color: Prairie Sand Brick: Allowance of Manufacturer: Glen Gery ®, Drohan ?, Other: Style: Modular ?, Oversized Handmade Other: Color: Danish Mortar: Standard (no color) ?, Colored GG #210 ®. Mortar joint: Grapevine ?, Rake ®, Other: Special details: Concrete keystones as per plan Stucco: Manufacturer: None Thickness: Finish: Swirl ?, Other: Color(s): Trim finish: Trim color(s): Special details: Stone: Material: Manufactured Stone ?, Natural Stone ? Manufacturer/Su pplier: Style/Color: Mortar Color: Grey ?, Cream ?, Other: Other Material: 335 SHUTTERS ? NONE Material: Polystyrene ®, Wood ?, Other: Style: Paneled ®, Louvered ?, Other: Color: Wicker - Mid America Build Products #23 Wicker Type: Operating ?, Fixed Location: as per plan Options: Hardware ? Style: Other: 340 WINDOWS AND PATIO DOORS Window type: Double Hung Casement ?, Specialty ? (check all that apply) Manufacturer: Andersen Material: Vinyl Clad Exterior/ Wood Interior ®, Other 9 ? Initials GF-005 Specifications.doc Interior Finish: Natural ®, Primed ?, Glass: Insulated "low E" Exterior Color: White Exterior Trim: per plans Pre-finished ? color Grilles, Screens and Hardware: Grille Locations: None ?, Specific Locations ?: Whole House Grille Type: 200 and 400 Series Removable Interior Grilles ®, 3/4" ® 7/8"? 1-1/8" ? width Grilles Between the Glass ?, 3/4" (windows) & 1" (patio doors) width 400 Series Onlx Removable Interior Grilles in pine, maple, oak? and prefinished white ? Simulated Divided Lite ?, 3/4" ? 7/8"? 1-1/8" ? 2-1/4" ? width True Divided Lite ?, 3/4" ? 7/8"? 1-118" ? 2-1/4" ? width Grille pattern: Standard & Custom ?: Grille material: Prefinished Exterior / Wood Interior Custom ?: Screens: None ®, Specific Locations ?: Whole House ? Standard color, as per selection Hardware: Metro style, Special Accessories: none Color: Stone ?, White ®, other: Patio Door type: as per plan Manufacturer: Andersen Patio Door Grilles, Screens and Hardware: Grille Locations: None ?, Specific Locations ?: Whole House Grille Type: 200 and 400 Series Removable Interior Grilles ®, 3/4" ®, 7/8"?, 1-1/8" ? width Grilles Between the Glass ?, 3/4" (windows) & 1" (patio doors) width 400 Series Only Removable Interior Grilles in pine, maple[], oak[] and prefinished white ? Simulated Divided Lite ?, 3/4" ? 7/8"? 1-1/8" ? 2-1/4" ? width True Divided Lite ?, 3/4" ? 7/80? 1-1/8" ? 2-1/4" ? width Grille pattern: Standard ®, Custom ?: Grille material: Prefinished Exterior / Wood Interior Custom ?: Screens: None ®, Specific Locations ?: Whole House ? Standard color, as per selection Hardware: Style: Standard ?, Metro ®, Classic ?, Estate ®. Color: Stone ?, White ®, other (for Estate style only): to be decided Locking hardware, location(s): Great Room. (also Lower Level if exposed ba em nt Special Accessories: 345 SKYLIGHTS NONE ? 10 Initials . , GF-005 Specifications.doc Manufacturer: Andersen Style & size: 244 Fix Options: None 350 EXTERIOR DOORS (EXCLUDING FRONT DOOR, WHICH IS AN ALLOWANCE) Exterior Door #1: Location: Manufacturer: Material: Style: Size: Trim: Threshold: Hinges: Exterior Door #2: Location: Manufacturer: Material: Style: Size: Trim: Threshold: Hinges: From Garage into house: Manufacturer: Material: Style: Threshold: Hinges: Front Enta Thermatru Fiber Classic FC60 - 6 Panel 3368 Brick Mold Mill finish ?, Bronze ®, Brass ? Brushed Brass ?, Chrome ?, Brushed Nickel ?, Bright Brass ?, Black Nickel ? None Oil-rubbed Bronze ®, Mill finish ?, Bronze ?, Brass ? Brushed Brass ?, Chrome ?, Brushed Nickel ?, Oil-rubbed Bronze ?, Bright Brass ?, Black Nickel ? Jeldwin Fire-rated Door (FD070) Se 6-panel ®, Other: Mill finish ?, Bronze ®, Brass ? Brushed Brass ?, Chrome ?, Brushed Nickel ?,. Bright Brass ?, Black Nickel ? Door Hardware and Mick Plates are a hardware allowance item (see Section "C'j Oil-rubbed Bronze ?, 360 GARAGE DOORS Number of Doors: 9'x7' 9'x8' 16'x7' one, 16'x8' Other: Manufacturer: Wayne Dalton or equal Style: Foamcore 9100 raised panel ®, Other: Color: White (paintable - paint color on Ext. Paint Schedule) ?, Other: Almond Windows: None ®, One-panel plain ?, One-panel with inserts (Style: ) ? Operator(s): Quantity one 11 ?p? Initials GF-005 Specifications.doc Manufacturer: Quantum, or equal Type: Ceiling Mount - 1/z hp Chain Drive (#3214) ®, 1/z hp Belt Drive ?, Wall Mount - drive for TorqueMaster (for foamcore steel doors) ?, idrive for Torsion (for wood doors) ? Transmitters: Quantity 2 2-button ®, 3-button ? Options: None ®, Exterior Keypad ?, Pet button ?, Wireless wall controls ? 365 EXTERIOR TRIM Soffit: Manufacturer: Certain e Type: Aerated Aluminum Aerated Vinyl ?, Other: Fascia: Aluminum Wrapped 2x6 ?, 2x8 Other: Color of Soffit & Facia: Almond Trim: No ®, Yes ? Type: Location: as per plan Color: as per Exterior Paint Schedule, attached Crown: No ?, Yes Manufacturer: FvoM Style: 905, Size: Location: as per plan Color: as per the Exterior Paint Schedule, attached Louvers: No ?, Yes Manufacturer: FFypon,. Style: open with screen, Size: as ear plan Location: as per plan Color: as per the Exterior Paint Schedule, attached Columns: See Section #560 370 DECK NONE ? Framing material: Pressure Treated (Posts, beams, joists, stringers, etc.) Decking material: Pressure Treated 5/4" x 6" planks U Cedar ?, Trex ? color Other: color Steps to grade: no ®, yes ? If yes, riser open ?, riser dosed ? Railing material: Pressure Treated ®, Vinyl ? color Trex ? color Other: color Railing style: as per plan detail 375 MAILBOX PIER NONE Quantity: 12 ?p Initials . v % w GF-005 Specifications.doc Style: Size: Height(from street level): Depth (from curb back): Exterior Material: Stucco ?, Stone ?, Width (along the curb): Brick ?, Other: Detailed design in Appendix 460 HVAC HVAC system shall be designed to heat all of the living area to a minimum temperature of 68 degrees Fahrenheit when the exterior temperature is 0 degrees Fahrenheit. Manufacturer: Number of systems: Number of zones: Furnace: Furnace efficiency: Air Conditioning: Thermostat(s): Carrier or equal One, System location(s):ba m n one, Zone location(s): Forced Air, Natural Gas ®, Propane ? 80%0, 90% Other: seer Standard ?, Programmable Register style: Floor ®, Baseboard ?, Ceiling ? Returns: Low returns on first floor ®, high returns on second floor ®, Other: Options: Humidifier ®: Quantity: on Manufacturer: Aorilaire or Eaual Air Cleaner ®: Media Air Filter ?, Electrostatic Air Cleaner HEPA filter ? Variable speed equipment ? Superducts ? Other: Gas Connections: Rough-in for - Fireplace(s) one Gas Grill - Location: Gas Range one Gas Dryer one Water Heater(s) Note: The dryer will be vented to the closest exterior wall. The range hood and its installation will be charged to the Appliance Allowance. 500 DRYWALL 1/2" Drywall throughout finished areas of home, glued and screwed to framing Finish: Smooth and Painted Moisture Resistant ("Greenboardn) to be used in Bathrooms with a shower or bathtub 5/8" Drywall on Garage/House Walls and Garage Ceiling (if living above), all other areas of garage to receive 1/z" drywall Special Drywall Treatments: bullnose comers at niches ?, bullnose corners at tray ceilings ?, bullnose comers at selected openings, noted on plans ®,, bullnose corners throughout home, indicated on plan ?, drywalled window jambs throughout ? 13 Initials ¦ f GF-005 Specifications.doc 505 PAINT, STAIN AND WALL COVERINGS Manufacturer: ICI or equal Exterior: Wood and Fypon trim (if any) - Primer and 2 coats of enamel Misc. - roof pipes and vents to be painted black Note: Due to the way paint soaks into the wood over the first few years, we recommend the exterior be examined and touched-up or cleaned and repainted or restained after the second or third year (not covered under warranty). After this painting, durability should last 3 to 5 years. Much is dependent on the amount of exposure to the sun and weather. Interior: Trim Primer and 1 coat latex semi-gloss Stain ? Doors Primer and 1 coat latex semi-gloss Stain ? Walls Primer and 2 coats flat latex Ceiling Primer and 2 coats flat latex Closets Primer and 2 coats flat latex Garage Primer and 1 coat flat latex Colors to be selected by owner and recorded on the paint schedule. Colors which are harder to touchup or require extra coats to cover, will be an extra charge to the Owner. Number of different flat colors per room (including walls, ceilings, trays, etc.): 2 Number of different semi-gloss colors per room (including trim, doors, etc.): Number of different flat colors throughout the home: 3 Number of different semi-gloss colors throughout the home: 2 Extra colors will be charged at $300 per color per room. Caulk baseboard to solid surface floors (tile, wood, vinyls) except laminate (or other floating) flooring. Wallpaper not included - to be quoted through Custer Design Group on a separate Estimate. Note: Higher gloss paint will show imperfections on the walls and darker colors also have a similiar trait. Recessed lights against large wall surfaces will also show imperfections. 510 INTERIOR TRIM Door/Window Casing: Material: Finger jointed (paintable) poplar ®, Clear (stainable) poplar ?, Other: Style: WM-99, 3-1/2" ®, Other: Base Trim: Material: Finger jointed (paintable) poplar ®, Clear (stainable) poplar ?, Other: Style: WM-750, 5-1/4" ®, Other: Crown: Material: Finger jointed (paintable) poplar & Clear (stainable) poplar ?, Other: Style: WM-49, 3-5/8" ?, WM-47, 4-5/8" Other: 14 Initials- . 1 0 . GF-005 Specifications.doc Location(s): Dining Room - two rows of crown - upper tray & Ceiling, Foyer/Hallway Powder Room Master Bedroom Master Bathroom (see Specialty Moulding Worksheet for details) Chair Rail: Material: Finger jointed (paintable) poplar ?, Clear (stainable) poplar ?, Other: Style: WM-297, 3" ?; WM-956WW, 4-1/4" & WM-297, 3" ?; Other: Location(s): (see Specialty Moulding Worksheet for details) Sill: Material: Finger jointed (paintable) poplar Clear (stainable) poplar ?, Other: Style: WM-1195, 2-1/2" ®, WM-1193, 3-1/4" ?, Other: Misc.: (see Specialty Moulding Worksheet for details) 520 SPECIALITY MILLWORK Columns: Location(s): None Manufacturer: Style: Size (height x diameter): Wainscoting: Location(s): None Style: Height: (see Specialty Moulding Worksheet for details) Ceiling treatments: Tray ceiling in Dining Room as per plan (see Specialty Moulding Worksheet for details) Misc.: 530 INTERIOR DOORS Manufacturer: Material: Masonite ®, Other: Style: 4 Panel (as in old specs) Finish: Smooth ?, Woodgrain Jamb: Finger Jointed ®, Clear ? Height: Lower Level: None 6'8" ?, 87 ?, Other: 1st floor: None ?, 67 8'0" ?, Other: 2"d floor: None ?, 67 8'0" ?, Other: Location(s) of solid core doors (all else to be hollow core): Bedrooms and bathrooms 15 Initials" ?? GF-005 Specifications.doc Specialty Doors: No ?, Yes Location(s): Study Style: 15-lite French Glass type: none ?, plain beveled ?, other: Door hinge finish is to be selected with Door Hardware, see approved Client Estimate in Part C. 540 STAIRS Location #1: Mu r om Up ?, Down Hand Rail: Material: Pine ®, Red oak ?, Other: Style: WM-240 6010 ?, Other: End treatment: Opening Cap ?, Turn-out ?, Volute ?, Other: None Handrail Bracket : Standard ®, Finish: tanda Kneewalls: No ®, Yes ? Wood cap: Paintable poplar ?, Red oak ?, Other: Balusters: Material: Paintable poplar ?, Red oak ?, Iron ?, Other: Style: 5015 ?, Other: Newel Posts: Material:. Style: Treads: Material: Risers: Material: Accessories: Rosette % Other: Paintable poplar ?, Red Oak ?, Iron[],. Other: 5015 ?, Other: Pine Paintable poplar ?, Red oak ?, Other: Pine Paintable poplar ?, Red oak ?, Other: _ vhere rail meets wall ?, Decorative brackets on end of treads ? Location #2: First Floor Hallway Up ®, Down ? Hand Rail: Material: Red oak ?, Other: Maple Style: 6010 ®, Other: End treatment: Opening Cap ?, Tum-out ?, Volute ? Handrail Bracket: Standard ®, Finish: Oil Rubbed Bronze Kneewalls: No ?, Yes ® Wood cap: Paintable poplar ®, Red oak ?, Other: Balusters: Material: Paintable poplar ®, Red Oak ?, Iron ?, Other: Style: 5015 ?, Other: Newel Posts: Material: Paintable poplar ?, Red Oak ?, Iron ?, Other: Maple Style: 5015 ?, Other: 4010171-S Treads: Material: Red oak ?, Other: Pine Risers: Material: Paintable poplar ?, Red oak ?, Other: Pine Accessories: Rosette where rail meets wall ®, Decorative brackets on end of treads ? 16 Initials s? r f )i GF-005 Specifications.doc Other: 560 EXTERIOR COVERED AREAS Front Entry: Material: Plain Concrete ?, Patterned Concrete ? Color: Pattern: . Other: Pavers to match Danish Handmade Brick Ceiling: Vented soffit ?, Beaded porch soffit ®, Stucco ?, 1/2" Exterior drywall ?, Other: Columns: Size: 8" round ?, 10" round ®, 8" square ?,10" square ?, Other: Style: Permacast ?, Pre-fab Wood ?, Site-built (per plans) ®, Other: Railing: Side Entry: Material: Plain Concrete ?, Patterned Concrete ? Color: Pattern: Other: Ceiling: Vented soffit ?, Beaded porch soffit ?, 1/2" Exterior drywall ?, Stucco ?, Other: Columns Size: 8" round ?, 10" round ?, 8" square ?, 10" square ?, Other: Style: Permacast ?, Pre-fab Wood ?, Site-built (per plans) ?, Other Railing: Rear porch: Material: Plain Concrete ?, Patterned Concrete ? Color: Pattern: Other: Ceiling: Vented soffit ?, Beaded porch soffit ?, 1/2" Exterior drywall ?, Stucco ?, Other: Columns: Size: 8" round ?, 10" round ?, 8" square ?, 10" square ?, Other: Style: Permacast ?, Pre-fab Wood ?, Site-built (per plans) ?, Other: Railing: 570 PATIOS (NO ROOF OVERHEAD) NONE ? Front Patio: Material: Plain Concrete ?, Patterned Concrete ? Color: Pattern: Other: Side Patio: Material: Plain Concrete ?, Patterned Concrete ? Color: Pattern: Other: Rear Patio: Material: Plain Concrete Patterned Concrete ? Color: Pattern: Other: 17 Initials ?_ It q if it GF-005 Specifications.doc 575 SIDEWALK NONE Material: Plain Concrete ?, Stained Concrete ? Color: Patterned Concrete ? Color: Pattern: Brick Pavers ? Type: Color: Width: 36" ?, 42" ?, 48" ?, Other Length: up to as measured from the center of the walk. An additional charge in the amount of $TBD/L.F. is be incurred if length is exceeded. Steps: 18 Initials ?l?_ r .1l). PART C - Client Allowances ALLOWANCES (INCLUDING INSTALLATION): 1. Design Assistance (26 hours) 2. Floor coverings and underlayments 3. Cabinetry, vanities and countertops 4. Appliances** 5. Plumbing piping and system 6. Plumbing fixtures 7. Shower enclosures 8. Master Bathroom Tile Shower and Whirlpool Surround 9. Bath accessories 10. Mirrors 11. Shelving 12. Electrical wiring*** and service 13. Electrical fixtures 14. Fireplace, surround, hearth and mantle 15. Door hardware 16. Landscaping 17. Security system 18. Central vacuum 19. Home technology 20. Front door assembly 21. Water supply 22. Driveway 23. Other: GF-005 Specifications.doc Contract Design Allowance Estimate # Total of Estimate $ 0 $ $ 18,000 $ $ 19,250 $ $ 2,800 $ $ 9,000 $ $ 6,300 $ $ 700 $ $ 3,000 $ $ 350 $ $ 350 $ $ 800 $ $ 9,600 $ $ 4,000 $ $ 2,500 $ $ 900 $ $ 5,000 $ $ $ 0 0 $ $ $ $ 0 By Builder $ $ $ Public $ $ By Builder $ $ 0 $ Total $ 82,800 $ * Allowances are estimates only and are subject to change based upon client selections and current pricing at the time of order. All Allowances will be invoiced through Custer Design Group Estimates, which will include 10% for overhead and administration. All Allowance items must be purchased through Custer Design Group. ** All miscellaneous costs associated with the installation of appliances, such as venting and gas lines, will be charged to this allowance on a time and material basis. The required electrical wiring for appliances will be charged to the Electrical Allowance. *** The Electrical plan is to be signed and placed on the plan rack with the signed House plan 19 Initials-1,4e • J10 f GF-005 Specifications.doc Note: Owner is responsible for any fees associated with permanent public and/or private utilities required at the home (i.e. Telephone initiation fees, water service, Propane Tank and Installation, etc.). Owner will initiate services at the request of Custer Homes, Inc. 26 hours of consultation with our Design Services Manager are included in the Construction Agreement for assistance in the selection and coordination of all of the construction materials including the Allowances listed above. Every hour over the allotted amount will be charged at a rate of $80.00 per hour. A credit will not be given for any portion of this time that is unused. Note: Deposits required on allowance items are the sole responsibility of the Owner and will be invoiced at the time of the trade contractor's request. Note: Should a conflict arise regarding these construction specifications' pages versus the dated plans, at a later date, these construction specifications' pages will prevail for all items defined within these construction specifications' pages. The plans will prevail on such items as wiring, placement of light fixtures, smoke detectors, etc., which are not covered in these construction specifications' pages. Builder reserves right to use commonly accepted trade practices in the construction of this home. All methods and material shall meet or exceed state building codes. Builder shall use his discretion and. sound business judgment in making adjustments due to site conditions or undetermined construction details on the plans or specifications. Builder reserves the right to substitute Brands and materials of equal quality if necessary due to changes in the availability of products and/or unexpected price changes. AGREED UPON BY: Builder: CUSTER HOMES, INC. a Pennsylvania corporation By: Stan Custer, Jr., President (Date) Owners : (Date) (Date) 20 K 41•: no • CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Complaint upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, and by certified mail, at Shiremanstown, Pennsylvania, addressed as follows: Custer Homes, Inc. Attn: Stan Custer, Jr. 2805 Old Post Road, Suite 200 Harrisburg, PA 17110 Date: May 8, 2007 1 , /N Jennifer B. H' p, Esquire N cr `, CO _ . Ij c-n .., { W O -n i?Tl C? i-r i J Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) jmcguire@caldwellkeams.com Attorneys for Defendant Custer Homes Inc KENNETH A. WALKER and MILDRED E. WALKER Husband and wife, Plaintiffs VS. CUSTER HOMES, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 2007-2179 : CIVIL ACTION - LAW CIVIL TERM PRELIMINARY OBJECTIONS MOTION TO COMPEL ARBITRATION - PaRCP 1028(a)(6) AND NOW, comes the Defendant, Custer Homes, Inc., by and through is attorneys, Caldwell & Kearns, P.C., and file the within Preliminary Objections to Plaintiffs' Complaint and in support thereof, aver as follows: 1. On or about December 6, 2006, Plaintiff, Kenneth Walker initiated the underlying lawsuit by filing a Complaint with Magisterial District Judge Placey. 2. The Complaint was dismissed without prejudice by Magisterial District Judge Placey on March 22, 2007. 3. A true and correct copy of Magisterial District Judge Placey's decision and Opinion is attached hereto as Exhibit "A". 4. On or about May 8, 2007, Plaintiffs filed the underlying complaint with this Court. 5. Plaintiffs' Complaint purports to set forth counts for breach of a written contract, quantum meruit or breach of an implied contract and unjust enrichment. 6. Plaintiffs purchased a partially completed home from Defendant which Defendant completed for them. 7. The construction was subject to a written warranty. 8. A true and correct copy of the warranty is attached hereto as Exhibit "B". 9. Plaintiffs' claims all arise from the construction. 10. Plaintiffs' claims are all subject to the terms of the new home warranty. 11. The warranty requires arbitration of any disputes. 12. "A written agreement to subject any existing controversy to arbitration or a provision in a written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability o revocation of any contract." 42 Pa. C.S.A. § 7303. 13. "Compelling arbitration. -On application to a court to compel arbitration made by a party showing an agreement described in Section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied." 42 Pa. C.S.A. § 7304(a). 14. Plaintiffs refuse to arbitrate this matter. 15. Plaintiffs and Defendant are parties to a valid and enforceable agreement to arbitrate contractual disputes. 16. Pa.R.C.P. 1028(a)(6) provides that Preliminary Objections may be filed when there is an agreement for arbitration. 2 17. Defendant requests that this Court Order the parties arbitrate this matter using the Home Builder's Associations of Metropolitan Harrisburg's Quality Contractor Commitment program or some other acceptable arbitrator. WHEREFORE, Defendant respectfully requests that this Honorable Court SUSTAIN its Preliminary Objections for lack of subject matter jurisdiction and issue an order compelling arbitration using the Home Builder's Associations of Metropolitan Harrisburg's Quality Contractor Commitment program or some other acceptable arbitrator. submitted, Date: By: 0563-003/118156 McGuire, Esquire I. D. # 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) jmcguire@caldwellkeams.com Attorney for Defendant, Custer Homes, Inc. 3 CERTIFICATE OF SERVICE AND NOW, this _Z /day of ix,:? 2007, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 CALDWELL & KEARNS By: J4 6 I COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-3-04 MDJ Name: Hon. THOMAS A. PLACEY Address: 104 S SPORTING HILL RD MECHANICSBURG, PA Telephone: (717 ) 761-8230 17050 CASTER HOMES, INC. 2805 OLD POST ROAD SUITE 200 HARRISBURG, PA 17110 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rWALKER, KENNETH A 4800 OAKMONT GREEN MECHANICSBURG, PA 17050 L J VS. DEFENDANT: NAME and ADDRESS FLUSTER HOMES, INC. 2805 OLD POST ROAD SUITE 200 LHARRISBURG, PA 17110 J Docket No.: CV-0000732-06 Date Filed: 12/06/06 THIS IS TO NOTIFY YOU THAT: CASTER HOMES, INC., Judgment: DISMISSED W/O PREJUDICE (Date of Judgment) Judgment was entered for: (Name) Judgment was entered against: (Name) in the amount of $ ? Defendants are jointly and severally liable. Damages will be assessed on Date & Time ® This case dismissed without prejudice. M Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $i Amount of Judgment Judgment Costs interest on Judgment Attorney Fees Total Post Judgment Credits Post Judgment Costs $ .00 $ .00 $ .00 $ .00 $ .001 Certified Judgment Total $ 1 ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ,n 4 ; f Date I certify that this is a ti y ? Date 3/22/07 DEF 001 copy ofi th reco i My commission expires first Monday of January, 2010 t Magisterial District Judge &containing the judgment. Magisterial District Judge SEAL AOPC 315-06 DATE PRINTED: 3122/07 11x43_00 Atli KENNETH A. WALKER, Plaintiff V. CUSTER HOMES, INC., Defendant 0000f (0 4 - ""', ft N a 1. District Court 09-3-04 CV-0732-06 FACTS FROM TRIAL Plaintiff and his wife, Mildred B. Walker, contracted for an under construction custom attached 1 1/2 story "villa" type home, which they settled on in May 2006. Defendant is residential custom home and development contractor that is the homebuilder of these duplex villas in the Grandon Farms development. Neither party was represented by counsel in this action. Plaintiff alleges defects in the construction that have resulted in settling of the soil causing damage to the sidewalk, driveway and yard. Further Plaintiff alleges improper workmanship in the landscaping, which has resulted in the loss of various plantings around the home. Plaintiff contacted the Defendant to cure these defects under the warranty, which still is in effect on this home. Upon not obtaining satisfaction from Defendant this suit was brought to recover the uncorrected construction defects and repairs made to the landscaping. The later was done purportedly under an agreement for Defendant to cover the warranted landscape costs. Defendant asserts that the construction was done pursuant to prevailing building codes. It acknowledges that some settling has occurred and that it was prepared to remedy some of the issues deemed under warranty, the yard and some landscaping, but that Plaintiff undertook these repairs on his own. Defendant denies any agreement to cover the landscaping cost as assert but recognizes some responsibility for replacement of landscaping. Defendant asserts that the driveway and sidewalk irregularities are within acceptable industry standards. The trial consisted of two (2) witnesses, Plaintiff and Defendant's company president. Each provided their subjective opinion of the issues replete with hearsay of what others had told them of the facts or problems. Supporting documentation, properly admitted, of the home sale, warranty, party communication, receipts and invoices have been accepted for review in this decision making process. DISCUSSION The burden in every civil case is on a plaintiff to show that a cefendant has breached a legally owed duty, which has resulted in mitigated and measurable damages. However, before the law can be applied the facts it is found that the matter is not properly before this Court. The contractors' limited warranty, executed 3 May 2006, provides on page 5 in the first sentence under the heading "Arbitration" that all claims or disputes arising out of the warranty "shall be decided by arbitration." This Court cannot abrogate the clear terms agreed to by the parties that mandate arbitration. Thus, the matter will be dismissed without prejudice so that the parties may proceed in accordance with the terms of their agreement. A comment on the evidence is warranted to aid the parties in their next action on the issues. Subjective opinions are secondary in evidentiary value to objective opinion based on demonstrably supported facts. In this case the standards within the industry are being disputed, specifically on what is acceptable. Conformity with the legislatively mandated construction code is a minimum standard but is not necessarily the industry standard, which can vary between a new $150,000.00 home and a new $400,000.00 home. Plaintiff bears the initial burden of proof of the standard for this home, which is more than subjective expectation or hearsay statements of what others in the industry have to say. Ambiguity in the terms of the contract are construed against the drafter, in this case Defendant. The landscape allowance is distinct and separate item from grading or final grading, which if found to be ambiguous in the account of the contract terms would be held in favor of Plaintiff. Finally, as noted during trial, Mildred B. Walker is a necessary and indispensable party to this action. The District Court rules do not permit the addition of parties after the action has commenced, which would have been fatal to this action if the decision had not been subject to mandatory arbitration. The matter is dismissed without prejudice. The parties are advised to timely consult with an attorney before making a decision on how next to proceed. By the Court, 22 March 2007 Date Thomas A. Placey M.D.). ?X4,L4 J3 E?BIT "A" CONTRACTOR'S LIMITED WARRANTY Issued to: .41,- . PL -74,-f, /k&- (Owner) For work performed at: -'Ao//U Oa /?•y,o-,'r G?z G4-f.z ?/n /7a5_0 By: Custer Homes, Inc., (Contractor) Date: 3 3- 0 62 Note to Owner: All residential construction goes through a period of settlement and as the seasons change, periods of expansion or contraction will occur. As a result, the home may experience minor material changes which are unavoidable and are considered normal. The Owner should also be aware that he/she is responsible at all times for proper maintenance and use of the home, to include proper usage of the heating, ventilation and air conditioning systems. It is helpful to the Owner's maintenance program to keep a color chart of the different materials used during construction and a small supply of corresponding colored paint, stain or grout for easy touch-up. Damage caused by Owner negligence, improper maintenance or changes, alterations or additions performed by anyone other than the Contractor, his/her employees or subcontractors directed by the Contractor is not the responsibility of the Contractor and is likewise excluded from this limited warranty. SUBJECT TO THE LIMITATIONS AND EXCLUSIONS OF THIS CONTRACTOR'S LIMITED WARRANTY, CONTRACTOR WARRANTS TO OWNER FOR NOT MORE THAN ONE (1) YEAR FROM THE DATE HEREIN STATED IN THE TERM, AS FOLLOWS: ANY INJURY TO PERSONS OR DAMAGES TO PERSONAL OR REAL PROPERTY, IN WHOLE OR PART, WHICH MAY BE A CONSEQUENCE OF, OR INCIDENT TO, OR RESULT FROM ANY DEFECTS IN MATERIALS OR PERFORMANCE OF THE WORK IS EXCLUDED. In other words, the warranty is limited to the Contractor's work itself. Accordingly, this limited warranty specifically excludes any indirect, consequential or incidental damages whatsoever regardless of how so described, identified or defined. This Limited Warranty is personal to the above-named Owner(s) who occupy the residence during the coverage period, and is not transferable or assignable in any manner or form to any subsequent owner(s). Term: The term of the various coverages of this. Limited Warranty shall begin on the commencement date which is defined for purposes of this Limited Warranty, as the earlier of the following dates: a) The settlement date, otherwise known as the date of commencement of use; or b) The initial date of occupancy, otherwise known as the date of commencement of use; or c) The date of notice of completion (issuance of certificate of occupancy): and shall terminate twelve (12) months after the commencement date unless otherwise stated herein. revised 2-27-06 Warranties of Contractor: A. That all materials supplied by Contractor are of good quality and new, and in accordance with the standards established by the National Association of Home Builders publication entitled "Residential Construction Performance Guidelines, Third Edition," as amended and/or supplemented (the "NAHB Guidelines''), unless otherwise agreed to by Contractor and Owner. B. That the Improvements have been constructed in a reasonable workmanlike manner, and in accordance with the NAHB Guidelines. C. That all mechanical equipment installed by Contractor has been installed in a workmanlike manner in accordance with the manufacturer's specifications. D. That during the one year term of this Limited Warranty Agreement, upon reasonable notice from Owner within the Limited Warranty Agreement term, Contractor will either repair, replace or reinstall, at Contractor's option and expense, any component of the Improvements determined by Contractor to be defective by reason of the quality of the workmanship by Contractor or Contractor's subcontractors or by reason of the quality of the materials supplied by Contractor or Contractor's subcontractors. Assia,nment of Manufacturer's Warranty: Contractor assigns and passes through to Owner the Manufacturer's warranties on all "consumer products" as defined in the Magnuson-Moss Warranty Act (15 U.S.C. SS 2301-2311). The Act applies to written warranties on tangible personal property, which is normally used, for personal, family or household purposes. Merchantability, fitness and all other implied warranties, with respect to such goods, shall be governed by the Magnuson-Moss Act and other applicable state statutes. The following items are classified as "consumer products" when sold as part of a house and are covered by the Magnuson-Moss Warranty Act: 1. Heating and ventilation - Furnace, air conditioning, coils and compressor, humidifier, electronic air cleaner, heat pump, exhaust fan, or thermostat. 2. Mechanical/Electrical - Intercom, central vacuum system, security system, fire and smoke alarm, fire. extinguisher, garage door opener, door chimes, electric meter, gas meter, barbecue grill, light bulbs. 3. Plumbing - Water heater, water pump, water meter, sump pumps, water softener, whirlpool. 4. Appliances - Oven, surface unit, range, trash compactor, freezer, refrigerator, dishwasher, oven hood, disposal, ice maker, food center, clothes washer, clothes dryer, hot water dispensers. Limitations/Conditions of Contractor's Limited Warrantv: The obligations of Contractor under this Limited Warranty are strictly conditioned upon the following: A. Contractor's obligation to honor this Limited Warranty is expressly subject to Owner first having paid in full to Contractor all sums due to Contractor under the terms of the Construction Agreement and its amendments, if any, including any extras provided by Contractor at Owner's request. B. Any obligation of Contractor under this Limited Warranty must be performed only by Contractor unless Owner and Contractor otherwise mutually agree in writing to another type of adjustment. C. This Limited Warranty does not include defects or liabilities assumed within any guarantees or warranties given, provided or supplied by the manufacturers or suppliers of any materials or mechanical components installed in the house by Contractor which have been assigned to Owner. revised 2-27-06 D. Builder has neither caused nor has knowledge or reason to know of the presence of radon gas or other indoor air pollutants in, on or about the house as constructed by Builder and Owner acknowledges that Owner has been advised by Builder that Owner has the right and option to seek an independent evaluation of such conditions at Owner's expense. Except as otherwise agreed in writing between Owner and Builder in the Construction Agreement, Owner now hereby forever releases, discharges and holds harmless Builder and Builders agents, employees, officers, contractors and subcontractors from any and all damage, loss or injury to person or property, or the consequences arising therefrom, and from any claim, loss or demand, of any nature, which may arise from a determination of the existence of radon gas or other indoor air pollutants in, on or about the house as constructed by Builder. E. This Limited Warranty does not include and does not apply to: 1) Defects in outbuildings, including detached garages and detached carports (except outbuildings which contain the plumbing, electrical or H.V.A.C. systems serving the residence or except as otherwise noted): swimming pools and other recreational facilities; driveways; walkways; patios or decks; boundary walls; retaining walls and bulkheads (except where the boundary walls or bulkheads are necessary for the structural stability of the residence); fences; landscaping (including final grades, mulching, sodding; seeding, shrubs, trees and plantings or except as otherwise noted); sprinkler systems; or any other improvement not part of the residence. 2) Damage or defects in concrete floors of attached garages that are built separate from the foundation walls or other structural elements of the residence. 3) Any appliances, equipment, or other item within the residence which is considered a "consumer product" as defined under the Manufacturer's Warranty. 4) Loss or damage resulting from abnormal loading on. floors by the Owner which exceeds the design criteria as mandated by the locally adopted building codes. 5) Warpage or shrinkage of materials. 6) Normal wear and tear, normal deterioration, or normal changes which are the result of characteristics common to materials. 7) Outside sillcocks or other hose connections. 8) Loss or damage to any items, personal property or injury resulting from defective workmanship or materials including without limitation, any cracks, chips, dents, stains or marks on cabinets, plumbing fixtures, electrical fixtures, mirrors, glass, appliances, micas, vinyl, ceramics, painted or stained surfaces, doors, wood or carpeting. 9) Exterior hardware or fixtures. 10) Glass scratches or breakage. 11) Defects to structural slab foundation systems that have experienced movement, but are within the design criteria. 12) Presence of, or any damage from, insects, birds or rodents. 13) Cosmetic discrepancies. 14) Damage to real or personal property which was not included in the original delivery of the residence for the original contract price. 15) Loss of use, loss of opportunity, loss of market value, loss of rental value or any other similar consequential loss. 16) Defects in material or workmanship supplied by anyone other than the Contractor or its employees, agents or subcontractors, and any covered defect which was caused by defective material or workmanship supplied by anyone other than the Contractor or its employees, agents or subcontractors. revised 2-27-06 17) Any defect or condition which does not result in actual physical damage to the residence. 18) Loss or damage resulting from failure of the Contractor to complete the construction, or to complete the construction timely. 19) Damage due to the abuse or neglect of the Owner or the Owner's failure to provide for proper maintenance. 20) Cost of shelter, transportation, food, moving, storage or other expenses associated with or related to any defect, or the repair or replacement of any defects in workmanship, materials or design. 21) Loss or damage which arises while the residence is being used for nonresidential purposes. 22) Personal or bodily injury of any kind (including physical or mental pain and suffering and emotional distress), medical, hospital, rehabilitation or other incidental or consequential expenses, damage to personal property. 23) Loss or damage which the Owner has not taken appropriate action to minimize as soon as practical. 24) Mold, mildew, moisture, or other related concerns. 25) Any damage to the extent it is caused or made worse by: a) Loss or damage externally caused, including but not limited to acts of God, riot or civil commotion, windstorm, fire, explosion, smoke, water, hail, lightening, falling trees or other objects, aircraft, vehicles, flood, mud slides, earthquakes, volcanic eruption, natural or introduced gases; b) Changes in the level of the underground water table which were not reasonably forseeable at the time of construction; c) Damage or condensation due to the failure of the Owner to maintain adequate ventilation or humidity levels; d) Subsidence or soil movement which was not reasonably predictable through soil testing at the time of construction; e) Any damage or defects caused by soil movement for which compensation is provided by legislation or which is covered by insurance or public funds to the extent that such compensation is paid for by other such providers; f) Radon gas and any other indoor air pollutants. g) Loss of electrical power. Claims Procedure: Upon detecting the existence of a defect, the Owner shall follow the following procedure set forth below: a) If the defect is covered by the Contractor's Limited Warranty, written notice with a thorough and complete explanation of the defect shall be sent to the Contractor at the following address: 2805 Old Post Road, Suite 200, Harrisburg, Pennsylvania 17110. The Owner shall give the opportunity to the Contractor to inspect the claimed defect prior to any work commencing. Only emergency reports will be taken by telephone (717) 232-6027 or facsimile (717) 232-6029. b) If the defect is covered under the Manufacturer's Warranty, follow the instructions provided with such warranty. In the absence of a written Manufacturer's Warranty, contract the Contractor's office in writing to obtain information and assistance in filing a claim. Contractor Performance: The Contractor reserves the right to repair, replace or pay reasonable sums in order to effect those repairs to any deficiencies based on the performance requirements as contained in the Residential Construction Performance Guidelines - 3`d Edition by the National Association of Home Builders. The choice among repair; replacement or payment is that of the Contractor. Action taken by the Contractor to correct the 4 revised 2-27406 defect shall not extend any term of this warranty. Corrective work shall be performed by the Contractor only during normal working hours, 8:00 am to 4:00 pm on Monday through Friday. No corrective work shall be performed on Saturday, Sunday or company holidays. The Contractor shall not be required to enter the premises to perform corrective work unless the Owner has provided the Contractor with a key, written permission to enter and a complete release of liability. Arbitration: All claims, disputes and other matters in question between the Contractor and Owner arising out of, relating to this Agreement, and the performance of either parry hereunder, or the breach thereof, shall be decided by arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association then pending and as modified thereby. In the event either parry wishes to request arbitration of any claim, dispute or other matter in question, he/she shall first timely file a notice of demand for arbitration, in writing, with the other parties specifically describing the claims, disputes or other matters in question which is wished to be submitted to arbitration. Thereafter, when the period of thirty (30) days shall lapse in order to provide available time to amicably resolve such disputes (the "Resolution Period"). If such notification does not result in resolution, either party may then file a notice of intent to proceed with arbitration. Any matters involving a sum less than $10,000.00 shall be determined by a single arbitrator mutually selected by the parties within thirty (30) days of said notice. Failing agreement, either parry may petition the court of common pleas in the county where the property is located for the appointment of an arbitrator. Any matters involving in excess of said sum shall be determined by three (3) arbitrators, each party selecting one arbitrator, and the two arbitrators selecting, the third. If the matter proceeds to arbitration, the parties agree to have the discovery rights and procedures as provided by the Pennsylvania Rules of Civil Procedure to be available and enforceable with the arbitration proceeding. In any case in which either party elects to submit a claim, dispute or other matter in question to arbitration, as provided herein, such request or demand for arbitration shall be made no later than six (6) months from the date of said claim, dispute or other matter was known or should recently have been known by the parry requesting arbitration. Any failure to therefore timely demand arbitration shall constitute a bar to prevent the filing of an untimely claim. This provision shall not however expand or extend any date or limitation on institution of legal equitable proceedings that would be barred by the applicable statute of limitations. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. Any award rendered by arbitrators shall be finai.and enforceable by any party to the arbitration, and judgment may be entered upon it in accordance with the applicable law and any court having jurisdiction thereon. In the event of any arbitration or other formal legal proceeding in addition to any and all other damages to which a party may be entitled, the prevailing party shall be entitled to reimbursement for his reasonable attorney's fees. THIS LIMITED WARRANTY IS THE ONLY EXPRESS WARRANTY EXTENDED TO OWNER BY CONTRACTOR. ANY ITEM AND CONDITIONS NOT SPECIFICALLY COVERED BY THIS WARRANTY ARE EXCLUDED FROM COVERAGE AND ARE THE RESPONSIBILITY OF OWNER. IT IS EXPRESSLY UNDERSTOOD THAT THIS LIlYIITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESSED OR MULIED. INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND HABITABILITY. IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY DAMAGES (CONSEQUENTIAL revised 2-27-06 OR OTHERWISE) ARISING FROM ANY DEFECT IN ANY ITEM COVERED HEREUNDER. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE. S1o-n atures: Custer Homes, Inc. (Contractor) i Date: S- 3 J o Owner Signature Owner Signature Date: revised 2-27-06 ^YJ;?? Gr- Fri fTl ? tL? W KENNETH A. WALKER and, MILDRED E. WALKER, husband and wife, Plaintiffs V. CUSTER HOMES, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2007-2179 CIVIL ACTION - LAW CIVIL TERM PLAINTIFFS' PRELIMINARY OBJECTION TO DEFENDANT'S PRELIMINARY OBJECTION AND MOTION TO COMPEL ARBITRATION AND NOW, come Plaintiffs, Kenneth A. Walker and Mildred E. Walker, husband and wife, by and through their attorneys, Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire, and file the within Preliminary Objection to Defendant's Preliminary Objections and Motion to Compel Arbitration and aver as follows: 1. Defendant, Custer Homes, Inc., filed a Preliminary Objection and Motion to Compel Arbitration with this Honorable Court on or about June 1, 2007. 2. Defendant's Preliminary Objection set forth several averments of fact not appearing of record. See Paragraph Nos. 6, 7, 8, 9, 10, 11, 14, 15 and 17 of Defendant's Preliminary Objection and Motion to Compel Arbitration. 3. Defendant did not attach a verification to its Preliminary Objection. 4. "Every pleading containing an averment of fact not appearing of record in the action ... shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. The pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder." See Pa.R.C.P. 1024 (a) . 5. "[T]he pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto." See Pa.R.C.P. 1017 (emphasis added). 6. Defendant failed to timely file a verified Preliminary Objection or Answer to Plaintiffs' Complaint. WHEREFORE, Plaintiffs, Kenneth A. Walker and Mildred E. Walker, husband and wife, request this Honorable Court overrule Defendant's Preliminary Objection on the basis that Defendant failed to file a verified Preliminary Objection, and grant Plaintiffs any other just relief as is deemed appropriate. Date: June I? 2007 Jen r B. Hipp, Esquire Pa. I. . No. 86556 One We t Main Street Shiremanstown, PA 17011 (717) 737-8761 Attorney for Plaintiffs, Kenneth A. Walker and Mildred E. Walker CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Preliminary Objection to Defendant's Preliminary Objections and Motion to Compel Arbitration upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, and by certified mail, at Shiremanstown, Pennsylvania, addressed as follows: Jeffrey T. McGuire, Esquire Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendant, Custer Homes, Inc. Date: Junela, 2007 1A Jenni Hipp,'Esquire VERIFICATION We verify that the statements made in this Preliminary Objection to Preliminary Objections and Motion to Compel Arbitration are true and correct. We understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: J,-, l t Zd,o 7 Date: i4inx K TH A. WALKER/ M L RED E. WALKER KENNETH A. WALKER and, IN THE COURT OF COMMON PLEAS OF MILDRED E. WALKER, CUMBERLAND COUNTY, PENNSYLVANIA husband and wife, Plaintiffs DOCKET NO. 2007-2179 V. CIVIL ACTION - LAW CUSTER HOMES, INC. Defendant CIVIL TERM PROPOSED ORDER AND NOW, this day of , 2007, based upon the Preliminary Objection to Preliminary Objection as filed by Plaintiffs, Kenneth A. Walker and Mildred E. Walker, husband and wife, it is hereby ORDERED that the Defendant's Preliminary Objections are overruled and Defendant's Motion to Compel Arbitration is denied. Date: BY THE COURT: J. N T -. r -, fil Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) jmcguire@caldwellkeams.com Attorneys for Defendant Custer Homes Inc KENNETH A. WALKER and IN THE COURT OF COMMON PLEAS OF MILDRED E. WALKER CUMBERLAND COUNTY, PENNSYLVANIA Husband and wife, Plaintiffs DOCKET NO. 2007-2179 VS. : CIVIL ACTION - LAW CUSTER HOMES, INC. Defendant CIVIL TERM AMENDED PRELIMINARY OBJECTIONS MOTION TO COMPEL ARBITRATION - PaRCP 1028(a)(6) AND NOW, comes the Defendant, Custer Homes, Inc., by and through is attorneys, Caldwell & Kearns, P.C., and file the within Preliminary Objections to Plaintiffs' Complaint and in support thereof, aver as follows: 1. On or about December 6, 2006, Plaintiff, Kenneth Walker initiated the underlying lawsuit by filing a Complaint with Magisterial District Judge Placey. 2. The Complaint was dismissed without prejudice by Magisterial District Judge Placey on March 22, 2007. A true and correct copy of Magisterial District Judge Placey's decision and Opinion is attached hereto as Exhibit "A". 4. On or about May 8, 2007, Plaintiffs filed the underlying complaint with this Court. 5. Plaintiffs' Complaint purports to set forth counts for breach of a written contract, quantum meruit or breach of an implied contract and unjust enrichment. 6. Defendant filed its original Preliminary Objections on June 1, 2007. 7. On June 19, 2007, Plaintiffs filed Preliminary Objections to Defendants Preliminary Objections on the basis that the Preliminary Objections failed to contain a verification as required. Defendant timely files the instant Amended Preliminary Objections with a proper verification. 9. Plaintiffs purchased a partially completed home from Defendant which Defendant completed for them. 10. The construction was subject to a written warranty. 11. A true and correct copy of the warranty is attached hereto as Exhibit "B". 12. Plaintiffs' claims all arise from the construction. 13. Plaintiffs' claims are all subject to the terms of the new home warranty. 14. The warranty requires arbitration of any disputes. 15. "A written agreement to subject any existing controversy to arbitration or a provision in a written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability o revocation of any contract." 42 Pa. C.S.A. § 7303. 16. "Compelling arbitration. -On application to a court to compel arbitration made by a party showing an agreement described in Section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied." 42 Pa. C.S.A. § 7304(a). 2 17. Plaintiffs refuse to arbitrate this matter. 18. Plaintiffs and Defendant are parties to a valid and enforceable agreement to arbitrate contractual disputes. 19. Pa.R.C.P. 1028(a)(6) provides that Preliminary Objections may be filed when there is an agreement for arbitration. 20. Defendant requests that this Court Order the parties arbitrate this matter. WHEREFORE, Defendant respectfully requests that this Honorable Court SUSTAIN its Preliminary Objections for lack of subject matter jurisdiction and issue an order compelling arbitration. Respec 1 submitted, --7 Z Date: By: Je . McGuire, Esquire Wc ey I. D. # 73617 aldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 (717) 232-2766 (fax) j me guire@c aldwellkearns. com Attorney for Defendant, Custer Homes, Inc. 0563-003/119738 3 VERIFICATION The undersigned hereby verifies that the facts set forth in the foregoing document are true and correct to the best of his/her knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unworn falsification to authorities. r Dated: ?ti? 200 Stan Custer, Jr., President Custer Homes, Inc. 119143 CERTIFICATE OF SERVICE AND NOW, this day of y 2007, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 By: CALDWELL & KEARNS ?y u t COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Maa DEG; Nc 09-3-04 MDJ Name. Hon THOMAS A. PLACBY Add`e" 104 S SPORTING HILL RD MECHANICSBURG, PA Telephone (717 761-8230 17050 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS FWALKER, KENNETH A 4800 OAKMONT GREEN MECHANICSBURG, PA 17050 L J vs. DEFENDANT- NAME and ADDRESS FCUSTER HOMES, INC. 2805 OLD POST ROAD SUITE 200 LHARRISBURG, PA 17110 J CIISTBR HOMES, INC. 2805 OLD POST ROAD Docket No_: CV-0000732-06 SUITE 200 Date Filed: 12/06/06 HARRISBURG, PA 17110 THIS IS TO NOTIFY YOU THAT: CUSTER HOMES, INC., DBF 001 Judgment: DISMISSED W/O PREJUDICE (Date of Judgment) 3/22/07 F1 Judgment was entered for: (Name) F1 Judgment was entered against: (Name) in the amount of $ Defendants are jointly and severally liable. Damages will be assessed on Date & Time g? This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease S Amount of Judgment $ .00 Judgment Costs $ .00 Interest on Judgment $ . 00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL. SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date :1- 6)( ?? , Magisterial District Judge I certify that this is a tr_ rrect copy otjth recor o edirjgs•containing the judgment. Date ; r1; s Magisterial District Judge My commission expires first Monday of January, 2010 SEAL AOPC 315-06 KENNETH A. WALKER, Plaintiff V. CUSTER HOMES, INC., Defendant oooof*n 60100 * N'%q4 District Court 09-3-04 CV-0732-06 FACTS FROM TRIAL Plaintiff and his wife, Mildred B. Walker, contracted for an under construction custom attached 1 1/2 story "villa" type home, which they settled on in May 2006. Defendant is residential custom home and development contractor that is the homebuilder of these duplex villas in the Grandon Farms development. Neither party was represented by counsel in this action. Plaintiff alleges defects in the construction that have resulted in settling of the soil causing damage to the sidewalk, driveway and yard. Further Plaintiff alleges improper workmanship in the landscaping, which has resulted in the loss of various plantings around the home. Plaintiff contacted the Defendant to cure these defects under the warranty, which still is in effect on this home. Upon not obtaining satisfaction from Defendant this suit was brought to recover the uncorrected construction defects and repairs made to the landscaping. The later- was done purportedly under an agreement for Defendant to cover the warranted landscape costs. Defendant asserts that the construction was done pursuant to prevailing building codes. It acknowledges that some settling has occurred and that it was prepared to remedy some of the issues deemed under warranty, the yard and some landscaping, but that Plaintiff undertook these repairs on his own. Defendant denies any agreement to cover the landscaping cost as assert but recognizes some responsibility for replacement of landscaping. Defendant asserts that the driveway and sidewalk irregularities are wit' yin acceptable industry standards. The trial consisted of two (2) witnesses, Plaintiff and Defendant's company president. Each provided their subjective opinion of the issues replete with hearsay of what others had told them of the facts or problems. Supporting documentation, properly admitted, of the home sale, warranty, party communication, receipts and invoices have been accepted for review in this decision making process. DISCUSSION The burden in every civil case is on a plaintiff to show that a cefendant has breached a legally owed duty, which has resulted in mitigated and measurable damages. However, before the law can be applied the facts it is found that the matter is not properly before this Court. The contractors' limited warranty, executed 3 May 2006, provides on page 5 in the first sentence under the heading "Arbitration" that all claims or disputes arising out of the warranty "shall be decided by arbitration." This Court cannot abrogate the clear terms agreed to by the parties that mandate arbitration. Thus, the matter will be dismissed without prejudice so that the parties may proceed in accordance with the terms of their agreement. A comment on the evidence is warranted to aid the parties in their next action on the issues. Subjective opinions are secondary in evidentiary value to objective opinion based on demonstrably supported facts. In this case the standards within the industry are being disputed, specifically on what is acceptable. Conformity with the legislatively mandated construction code is a minimum standard but is not necessarily the industry standard, which can vary between a new $150,000.00 home and a new $400,000.00 home. Plaintiff bears the initial burden of proof of the standard for this home, which is more than subjective expectation or hearsay statements of what others in the industry have to say. Ambiguity in the terms of the contract are construed against the drafter, in this case Defendant. The landscape allowance is distinct and separate item from grading or final grading, which if found to be ambiguous in the account of the contract terms would be held in favor of Plaintiff. Finally, as noted during trial, Mildred B. Walker is a necessary and indispensable party to this action. The District Court rules do not permit the addition of parties after the action has commenced, which would have been fatal to this action if the decision had not been subject to mandatory arbitration. The matter is dismissed without prejudice. The parties are advised to timely consult with an attorney before making a decision on how next to proceed. By the Court, 22 March 2007 Date Thomas A. Placey M.D.J. ????e?? ? EDIT "A" CONTRACTOR'S LEVHTED WARRiNdNTY Issued to: -i,, &: lt4,1, w, Ike- (Owner) By: Custer Homes. Inc., (Contractor) For work performed at: -7,9oO Oa ?•y, o-,? (??J?? [ n Date: Note to Owner: All residential construction goes through a period of settlement and as the seasons change, periods of expansion or contraction will occur. As a result, the home may experience minor material changes which are unavoidable and are considered normal. The Owner should also be aware that he/she is responsible at all times for proper maintenance and use of the home, to include proper usage of the heating, ventilation - and air conditioning systems. It is helpful to the Owner's maintenance program to keep a color chart of the different materials used during construction and a small supply of corresponding colored paint, stain or grout for easy touch-up. Damage caused by Owner negligence, improper maintenance or changes, alterations or additions performed by anyone other than the Contractor, his/her employees or subcontractors directed by the Contractor is not the responsibility of the Contractor and is likewise excluded from this limited warranty. SUBJECT TO THE LIMITATIONS AND EXCLUSIONS OF THIS CONTRACTOR'S LIMITED WARRANTY, CONTRACTOR WARRANTS TO OWNER FOR NOT MORE THAN ONE (I) YEAR. FROM THE DATE HEREIN STATED IN THE TERM, AS FOLLOWS: ANY INJURY TO PERSONS OR DAMAGES TO PERSONAL OR REAL PROPERTY, IN WHOLE OR PART, WHICH MAY BE A CONSEQUENCE OF, OR INCIDENT TO, OR RESULT FROM ANY DEFECTS IN MATERIALS OR PERFORMANCE OF THE WORK IS EXCLUDED. In other words, the warranty is limited to the Contractor's work itself. Accordingly, this limited warranty specifically excludes any indirect, consequential or incidental damages whatsoever regardless of how so described, identified or defined. This Limited Warranty is personal to the above-named Owner(s) who occupy the residence during the coverage period, and is not transferable or assignable in any manner or form to any subsequent owner(s). Term: The term of the various coverages of this-Limited Warranty shall begin on the commencement date which is defined for purposes of this Limited Warranty, as the earlier of the following dates: a) The settlement date, otherwise known as the date of commencement of use; Or b) The initial date of occupancy, otherwise known as the date of commencement of use; or c) The date of notice of completion (issuance of certificate of occupancy): and shall terminate twelve (12) months after the commencement date unless otherwise stated herein. revised 2-27-06 Warranties of Contractor: A. That all materials supplied by Contractor are of Qood quality and new, and in accordance with the standards established by the National Association of Home Builders publication entitled "Residential Construction Performance Guidelines, Third Edition," as amended and/or supplemented (the "NAHB Guidelines"), unless otherwise agreed to by Contractor and Owner. B. That the Improvements have been constructed in a reasonable workmanlike manner, and in accordance with the NAHB Guidelines. C. That all mechanical equipment installed by Contractor has been installed in a workmanlike manner in accordance with the manufacturer's specifications. D. That during the one year term of this Limited Warranty Agreement, upon reasonable notice from Owner within the Limited Warranty Agreement term, Contractor will either repair, replace or reinstall, at Contractors option and expense, any component of the Improvements determined by Contractor to be defective by reason of the quality of the workmanship by Contractor or Contractor's subcontractors or by reason of the quality of the materials supplied by Contractor or Contractor's subcontractors. Assignment of Manufacturer's Warranty: Contractor assigns and passes through to Owner the Manufacturer's warranties on all "consumer products" as defined in the Magnuson-Moss Warranty Act (15 U.S.C. SS 2301-2311). The Act applies to written warranties on tangible personal property, which is normally used, for personal, family or household purposes. Merchantability, fitness and all other implied warranties, with respect to such goods, shall be governed by the Magnuson-Moss Act and other applicable state statutes. The following items are classified as "consumer products" when sold as part of a house and are covered by the Magnuson-Moss Warranty Act: 1. Heating and ventilation - Furnace, air conditioning, coils and compressor, humidifier, electronic air cleaner, heat pump, exhaust fan, or thermostat. 2. Mechanical/Electricai - Intercom, central vacuum system, security system, fire and smoke alarm, fire extinguisher, garage door opener, door chimes, electric meter, gas meter, barbecue grill, light bulbs. 3. Plumbing - Water heater, water pump, water meter, sump pumps, water softener, whirlpool. 4. Appliances - Oven, surface unit, range, trash compactor, freezer, refrigerator, dishwasher, oven hood, disposal, ice maker, food center, clothes washer, clothes dryer, hot water dispensers. Limitations/Conditions of Contractor's Limited Warrantv: The obligations of Contractor under this Limited Warranty are strictly conditioned upon the following: A. Contractor's obligation to honor this Limited Warranty is expressly subject to Owner first having paid in full to Contractor all sums due to Contractor under the terms of the Construction Agreement and its amendments, if any, including any extras provided by Contractor at Owner's request. B. Any obligation of Contractor under this Limited Warranty must be performed only by Contractor unless Owner and Contractor otherwise mutually agree in writing to another type of adjustment. C. This Limited Warranty does not include defects or liabilities assumed within any guarantees or warranties given, provided or supplied by the manufacturers or suppliers of any materials or mechanical components installed in the house by Contractor which have been assigned to Owner. revised 2-27-06 D. Builder has neither caused nor has knowledge or reason to know of the presence of radon gas or other indoor air pollutants in, on or about the house as constructed by Builder and Owner acl-nowledges that Owner has been advised by Builder that Owner has the right and option to seek an independent evaluation of such conditions at Owner's expense. Except as otherwise agreed in writing between Owner and Builder in the Construction Agreement, Owner now hereby forever releases, discharges and holds harmless Builder and Builder's agents, employees, officers, contractors and subcontractors from any and all damage, loss or injury to person or property, or the consequences arising therefrom, and from any claim, loss or demand, of any nature, which may arise from a determination of the existence of radon gas or other indoor air pollutants in, on or about the house as constructed by Builder. E. This Limited Warranty does not include and does not apply to: 1) Defects in outbuildings, including detached garages and detached carports (except outbuildings which contain the plumbing, electrical or HN.A.C. systems serving the residence or except as otherwise noted): swimming pools and other recreational facilities; driveways; walkways; patios or decks; boundary walls; retaining walls and bulkheads (except where the boundary walls or bulkheads are necessary for the structural stability of the residence); fences; landscaping (including final grades, mulching, sodding, seeding, shrubs, trees and plantings or except as otherwise noted); sprinkler systems; or any other improvement not part of the residence. 2) Damage or defects in concrete floors of attached garages that are built separate from the foundation walls or other structural elements of the residence. 3) Any appliances, equipment, or other item within the residence which is considered a "consumer product" as defined under the Manufacturers Warranty. 4) Loss or damage resulting from abnormal loading on. floors by the Owner which exceeds the design criteria as mandated by the locally adopted building codes. 5) Warpage or shrinkage of materials. 6) Normal wear and tear, normal deterioration, or normal changes which are the result of characteristics common to materials. 7) Outside sillcocks or other hose connections. 8) Loss or damage to any items, personal property or injury resulting from defective workmanship or materials including without limitation, any cracks, chips, dents, stains or marks on cabinets, plumbing fixtures, electrical fixtures, mirrors, glass, appliances, micas, vinyl, ceramics, painted or stained surfaces, doors, wood or carpeting. 9) Exterior hardware or fixtures. 10) Glass scratches or breakage. 11) Defects to structural slab foundation systems that have experienced movement, but are within the design criteria. 12) Presence of, or any damage from, insects, birds or rodents. 13) Cosmetic discrepancies. 14) Damage to real or personal property which was not included in the original delivery of the residence for the original contract price. 15) Loss of use, loss of opportunity, loss of market value, loss of rental value or any other similar consequential loss. 16) Defects in material or workmanship supplied by anyone other than the Contractor or its employees, agents or subcontractors, and any covered defect which was caused by defective material or workmanship supplied by anyone other than the Contractor or its employees, agents or subcontractors. revised 2-27-06 17) Any defect or condition which does not result in actual physical damage to the residence. 18) Loss or damage resulting from failure of the Contractor to complete the construction, or to complete the construction timely. 19) Damage due to the abuse or neglect of the Owner or the Owner's failure to provide for proper maintenance. 20) Cost of shelter, transportation, food, moving, storage or other expenses associated with or related to any defect, or the repair or replacement of any defects in workmanship, materials or design. 21) Loss or damage which arises while the residence is being used for nonresidential purposes. 22) Personal or bodily injury of any kind (including physical or mental pain and suffering and emotional distress), medical, hospital, rehabilitation or other incidental or consequential expenses, damage to personal property. 23) Loss or damage which the Owner has not taken appropriate action to minimize as soon as practical. 24) Mold, mildew, moisture, or other related concerns. 25) Any damage to the extent it is caused or made worse by: a) Loss or damage externally caused, including but not limited to acts of God, riot or civil commotion, windstorm, fire, explosion, smoke, water, hail, lightening, falling trees or other objects, aircraft, vehicles, flood, mud slides, earthquakes, volcanic eruption, natural or introduced gases; b) Changes in the level of the underground water table which were not reasonably forseeable at the time of construction; c) Damage or condensation due to the failure of the Owner to maintain adequate ventilation or humidity levels; d) Subsidence or soil movement which was not reasonably predictable through soil testing at the time of construction; e) Any damage or defects caused by soil movement for which compensation is provided by legislation or which is covered by insurance or public funds to the extent that such compensation is paid for by other such providers; f) Radon gas and any other indoor air pollutants. g) Loss of electrical power. Claims Procedure: Upon detecting the existence of a defect, the Owner shall follow the following procedure set forth below: a) If the defect is covered by the Contractor's Limited Warranty, written notice with a thorough and complete explanation of the defect shall be sent to the Contractor at the following address: 2805 Old Post Road, Suite 200, Harrisburg, Pennsylvania 17110. The Owner shall give the opportunity to the Contractor to inspect the claimed defect prior to any work commencing. Only emergency reports will be taken by telephone (717) 232-6027 or facsimile (717) 232-6029. b) If the defect is covered under the Manufacturer's Warranty, follow the instructions provided with such warranty. In the absence of a written Manufacturer's Warranty, contract the Contractor's office in writing to obtain information and assistance in filing a claim. Contractor Performance: The Contractor reserves the right to repair, replace or pay reasonable sums in order to effect those repairs to any deficiencies based on the performance requirements as contained in the Residential Construction Performance Guidelines - 3`d Edition by the National Association of Home Builders. The choice among repair, replacement or payment is that of the Contractor. Action taken by the Contractor to convect the revised 2-27-06 defect shall not extend any term of this warranty. Corrective work shall be performed by the Contractor only during normal working hours, 8:00 am to 4:00 pm on Monday through Friday. No corrective work shall be performed on Saturday, Sunday or company holidays. The Contractor shall not be required to enter the premises to perform corrective work unless the Owner has provided the Contractor with a key, written permission to enter and a complete release of liability. Arbitration: All claims, disputes and other matters in question between the Contractor and Owner arising out of, relating to this Agreement, and the performance of either parry hereunder, or the breach thereof, shall be decided by arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association then pending and as modified thereby. In the event either party wishes to request arbitration of any claim, dispute or other matter in question, he/she shall first timely file a notice of demand for arbitration, in writing, with the other parties specifically describing the claims, disputes or other matters in question which is wished to be submitted to arbitration. Thereafter, when the period of thirty (30) days shall lapse in order to provide available time to amicably resolve such disputes (the "Resolution Period"). If such notification does not result in resolution, either party may then file a notice of intent to proceed with arbitration. Any matters involving a sum Jess than $10,000.00 shall be determined by a single arbitrator mutually selected by the parties within thirty (30) days of said notice. Failing agreement, either party may petition the court of common pleas in the county where the property is located for the appointment of an arbitrator. Any matters involving in excess of said sum shall be determined by three (3) arbitrators, each party selecting one arbitrator, and the two arbitrators selecting, the third. If the matter proceeds to arbitration, the parties agree to have the discovery rights and procedures as provided by the Pennsylvania Rules of Civil Procedure to be available and enforceable with the arbitration proceeding. In any case in which either party elects to submit a claim, dispute or other matter in question to arbitration, as provided' herein, such request or demand for arbitration shall be made no later than six (6) months from the date of said claim, dispute or other matter was known or should recently have been known by the party requesting arbitration. Any failure to therefore timely demand arbitration shall constitute a bar to prevent the filing of an untimely claim. This provision shall not however expand or extend any date or limitation on institution of legal equitable proceedings that would be barred by the applicable statute of limitations. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. Any award rendered by arbitrators shall be final.and enforceable by any parry to the arbitration, and judgment may be entered upon it in accordance with the applicable law and any court having jurisdiction thereon. In the event of any arbitration or other formal legal proceeding in addition to any and all other damages to which a party may be entitled, the prevailing parry shall be entitled to reimbursement for his reasonable attorney's fees. THIS LIMITED WARRANTY IS THE ONLY EXPRESS WARRANTY EXTENDED TO OWNER BY CONTRACTOR. ANY ITEM AND CONDITIONS NOT SPECIFICALLY COVERED BY THIS WARRANTY ARE EXCLUDED FROM COVERAGE AND ARE THE RESPONSIBILITY OF OWNER. IT IS EXPRESSLY UNDERSTOOD THAT THIS LIMITED WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESSED OR IMPLIED. INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND HABITABILITY. IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY DAMAGES (CONSEQUENTIAL revised 2-27-06 OR OTHERWISE) ARISING FROM ANY DEFECT IN T ANY ITEM COVERED HEREUNDER. THIS- WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FRONT STATE TO STATE. Signatures: Custer Homes, Inc. (Contractor) if Date: ?- 3 - o w - -- Owner Signature Owner Signature Date: revised 2-27-06 ? ? •-r? ?-- ...? cr ?: m. ,., q' `?? ..? .?'..., ?? s ?? _ i r ? -?zY w ? J?`,t f• .? ? ?, JAMES R. CLIPPINGER CHARLES J. DEHART, III JAMES L. GOLDSMITH P. DANIEL ALTLAND JEFFREY T. MCGUIRE- STANLEY J. A. LASKOWSKI DOUGLAS K. MAR51CO BRETT M. WOODBURN RAY J. MICHALOWSKI JAMES P. BARKER -BOARD CERTIFIED CIVIL TRIAL ADVOCATE CALDWELL & KEARNS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3631 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110-1533 July 6, 2007 Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 RE: Kenneth A. and Mildred E. Walker vs. Custer Homes, Inc. Cumberland County No. 2007 2179 Civil Term Dear Mr. Long: OF COUNSEL RICHARD L. KEARNS CARL G. WASS JAMES D. CAMPBELL, JR. THOMAS D. CALDWELL. JR. (1928 - 20011 717-232-7661 FAX: 717-232-2766 thefirm®caldwellkeams.com Enclosed please find an original and three copies of the Amended Preliminary Objections, Motion to Compel Arbitration for filing in the above-captioned docket. Please forward a copy to the Judge for his review. Also, please time-stamp the extra copy and return it in the enclosed self- addressed, stamped envelope enclosed for your convenience. Thank you for your assistance and cooperation. If you have any questions, please call me. troly.,yours, T McGuire I FELL & KEARNS JTM/se Enclosures cc: Jennifer B. Hipp, Esquire Stan Custer - Custer Homes, Inc. 0563-003/119737 KENNETH A. WALKER and, MILDRED E. WALKER, husband and wife, Plaintiffs V. CUSTER HOMES, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 2007-2179 CIVIL ACTION - LAW CIVIL TERM PLAINTIFFS' ANSWER TO AMENDED PRELIMINARY OBJECTIONS AND MOTION TO COMPEL ARBITRATION AND NOW, come Plaintiffs, Kenneth A. Walker and Mildred E. Walker, husband and wife, by and through their attorneys, Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire, and file the within Answer to Amended Preliminary Objections and Motion to Compel Arbitration and aver as follows: 1. Admitted. 2. Admitted. 3. Admitted in part, denied in part. It is admitted that a copy of Magisterial District Judge Placey's Decision and Opinion are attached to Defendant's Preliminary Objection and Motion to Compel Arbitration as Exhibit "A". It is denied that the copies attached to Defendant's pleading are "true and correct copies". 4. Admitted. 5. Denied. Plaintiffs' Complaint does, in fact, set forth Counts for Breach of Contract, Quantum Meruit/Implied Contract and Unjust Enrichment. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted in part, denied in part. It is admitted that Plaintiffs entered into a contract to purchase a home from Defendant. A copy of the contract is attached to Plaintiffs' Complaint as Exhibit "A". 10. Denied. 11. Denied. The document which Defendant attaches as Exhibit "B" to its Preliminary Objection and Motion to Compel Arbitration is not a "true and correct copy". By way of further answer, the purported "warranty" was never executed by Plaintiffs and the document is unsigned by Plaintiffs. 12. Admitted in part, denied in part. It is admitted that a portion of Plaintiffs' claims arise from the faulty construction services performed by Defendant. It is specifically denied that all of Plaintiffs' claims arise from the construction services. 13. Denied. It is specifically denied that a "new home warranty" exists in this case. Plaintiffs never entered into a written warranty agreement with Defendant. 14. Denied. It is specifically denied that a warranty exists in this case. By way of further answer, it is specifically denied that arbitration would be required in this case. 15. Denied. The averments set forth in Paragraph No. 15 are conclusions of law to which no response is required. 16. Denied. The averments set forth in Paragraph No. 16 are conclusions of law to which no response is required. 17. Denied. By way of further answer, Plaintiffs' incorporate their answer to Paragraph No. 11 of this Answer to Preliminary Objection and Motion to Compel Arbitration. 18. Denied. By way of further answer, Plaintiffs' incorporate their answer to Paragraph No. 11 of this Answer to Preliminary Objection and Motion to Compel Arbitration. 19. Denied. The averments set forth in Paragraph No. 19 are conclusions of law to which no response is required. 20. Denied. Defendant's Paragraph No. 20 is a prayer for relief, as opposed to an allegation of fact, to which no response is required. WHEREFORE, Plaintiffs, Kenneth A. Walker and Mildred E. Walker, husband and wife, respectfully request that this Honorable Court overrule Defendant's Preliminary Objection and Motion to Compel Arbitration, and grant any and all other relief as deemed just and appropriate. / Date: July 2007 1? ! 7 Jenn f r B. Hipp, Esquire Pa. I. P. No. 86556 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Attorney for Plaintiffs, Kenneth A. Walker and Mildred E. Walker CERTIFICATE OF SERVICE I, Jennifer B. Hipp, Esquire, hereby certify that I am this day serving the foregoing Answer to Preliminary Objections and Motion to Compel Arbitration upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, and by certified mail, at Shiremanstown, Pennsylvania, addressed as follows: Jeffrey T. McGuire, Esquire Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 Attorney for Defendant, Custer Homes, Inc. Date: Jul Y' , 2007 Jennifer B. Hipp, Esquire VERIFICATION We verify that the statements made in this Answer to Amended Preliminary Objection and Motion to Compel Arbitration are true and correct. We understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: 7/40107 K NNETH A. WALKER Date: 71x0107 MILDRED E. WALKER '"' C G? .a S} - -- r.? . , .....; ;.°, a.? .: ? r, ?? r ? ..c KENNETH A. WALKER and MILDRED E. WALKER, Husband and Wife, Plaintiffs VS. CUSTER HOMES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007-2179 CIVIL TERM PRAECIPE TO SETTLE AND DISCONTINUE To CURTIS R. LONG, PROTHONOTARY: On behalf of KENNETH A. WALKER and MILDRED E. WALKER, husband and wife, Plaintiffs, and CUSTER HOMES, INC., Defendant, in the above- captioned matter, please mark this matter settled and discontinued as to Defendant, CUSTER HOMES, INC. DATE: )Z ) 1) ) d - DATE: is/y/o7 JE N VD. ER B. HIPP, Esquire Pa. No. 86556 Bogar & Hipp Law Offices One West Main Street Shiremanstown, PA 17011 (713737-8761 Y T. MCGUIRE, Esquire J.D. D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 ? a ? '" -? ...- .t- --?