Loading...
HomeMy WebLinkAbout07-3731Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rlfinck@mette.com MARIO UMBELINA, and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs, V. ADAMS AND BREAM BUILDERS, LLC, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 373t lr [u t ?, NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 4737860 w Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rlfinck@mette.com MARIO UMBELINA, and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs, V. ADAMS AND BREAM BUILDERS, LLC, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07 - 3731 0i,- L COMPLAINT Mario Umbelina ("Mario") and Tabatha Santore-Umbelina ("Tabatha") (collectively the "Plaintiffs"), file this Complaint against the Defendant, Adams and Bream Builders, LLC ("Defendant"), averring as follows: t, 4 PARTIES 1. Plaintiffs are adult individuals and husband and wife residing at 415 Woodlawn Lane, Carlisle, Pennsylvania 17015. 2. The Defendant is a Pennsylvania limited liability company with a registered address at 115 Sable Run, Zelienople, Pennsylvania 16063 and a business address at 3 Arbor Drive, Boiling Springs, Pennsylvania 17077. JURISDICTION AND VENUE 3. Jurisdiction and venue are appropriate in this Court because the Defendant has a business address in Cumberland County, Pennsylvania. 4. This dispute relates to real property located in Cumberland County, Pennsylvania. 5. The events and transactions giving rise to the Plaintiffs' cause of action against the Defendant occurred in Cumberland County, Pennsylvania. 6. The Defendant regularly conducts business in Cumberland County, Pennsylvania. BACKGROUND 7. On or about May 13, 2005, the Plaintiffs employed real estate broker, Robert J. Purvis of Ebener & Associates ("Purvis") to assist them in locating available real property the Plaintiffs could purchase to build a custom home. 2 8. Tabatha suffers from chronic knee pain in both knees and has undergone two experimental knee surgeries (Carticel Replacements). 9. Plaintiffs explained to Purvis that due to Tabatha's disabilities, the Plaintiffs required property and a custom built home that was flat in order to accommodate Tabatha's limited mobility; specifically her inability to negotiate steps and hills. 10. Purvis identified real property (the "Property") belonging to Residential Homes Company, a Pennsylvania partnership located in Pennsylvania. 11. The Property was subdivided pursuant to a subdivision titled Final Subdivision Plan of Jefferson Court, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 87, page 146 (the "Jefferson Court Subdivision"). 12. Purvis arranged a joint meeting between himself, the Plaintiffs and Defendant's agent, Jack Adams ("Adams") to discuss the Property and to negotiate an Agreement for the Sale of New Construction. This meeting occurred in or about the end of May of 2005. 13. During the course of the May, 2005 meeting, Plaintiffs witnessed Purvis explain Tabatha's disabilities to Adams. Specifically, Purvis informed Adams that Tabatha was handicapped and required a house with few steps and property of relatively flat terrain. 14. Adams asked the Plaintiffs whether they needed ramps. In response, Tabatha stated that she wanted a ranch-style home rather than a two-story home. 3 t 15. Plaintiffs showed Adams some house plans they identified as being suitable to Tabatha's needs. 16. Adams informed the Plaintiffs that a ranch-style home would cost the Plaintiffs more money than a two-story home and suggested that the Plaintiffs choose a house plan that incorporated the master-bedroom into the first floor. 17. The Plaintiffs decided to follow Adams's advice to select a two-story house. 18. Plaintiffs arranged a second meeting with Adams and Purvis on June 30, 2005. Linda Shover, a Real Estate Agent for the Defendant, was also present for the June 30, 2005 meeting. 19. At Adams's suggestion, the June 30, 2005 meeting occurred on Lot 17 of the Jefferson Court Subdivision ("Lot 17"). 20. During the June 30, 2005 meeting, the Plaintiffs presented Adams with the two- story house plan they had selected. 21. Adams informed the Plaintiffs that Lot 17 would accommodate the house plan the Plaintiffs had selected. Adams specifically stated the Defendant would be able to build the house on Lot 17 within the applicable setback requirements. 22. Plaintiffs noticed that there was an increase in the natural incline from the front to the back of Lot 17 and indicated to Adams that the steepness of Lot 17 may not be suitable for the Plaintiffs' needs. 4 4 23. Plaintiffs informed Adams that if the natural incline of Lot 17 would still be present after the home was constructed, they would consider purchasing a different lot in the Jefferson Court Subdivision. 24. Plaintiffs informed Adams that it was essential that the lot be flat enough to enable Tabatha to care for it in the likely event that Mario would be deployed to Iraq for military duty. 25. Adams pointed to the neighboring Lot 15 and stated that when construction of the Plaintiffs' home was finished, Lot 17 would be graded in the same manner as Lot 15. In fact, Adams informed the Plaintiffs that South Middleton Township required the lots in the Jefferson Court Subdivision to "follow the grade." 26. The slope of Lot 15 was much less pronounced than that of Lot 17. 27. On July 14, 2005, the Plaintiffs took a copy of the two-story house plan they had selected to Adams and requested a price quotation from the Defendant. 28. For several weeks after July 14, 2005, the Plaintiffs and Defendant negotiated the price of the Property and construction of the Plaintiffs' house. 29. On August 13, 2005, Adams, Purvis and the Plaintiffs assembled for a meeting. During the meeting Adams presented the Plaintiffs with an offer of $307,000 to construct the house on Lot 17 and the Plaintiffs accepted. 30. At the August 13, 2005 meeting, Adams reassured the Plaintiffs that Defendant would make sure that the house and the slope of Lot 17 would accommodate the Plaintiffs' demands; specifically Tabatha's condition. 31. Based on the Defendant's repeated assurances, the Plaintiffs executed a Standard Agreement for the Sale of New Construction (the "Agreement of Sale") with the Defendant for the purchase and sale of Lot 17 in the Jefferson Court Subdivision. A true and correct copy of the Agreement of Sale is attached hereto as Exhibit `A' and made a part hereof by reference. 32. The Agreement of Sale incorporates various plans, specifications, and covenants, including those set forth on a document titled `New Home Specifications For: Mario and Tabatha Umbelina' ("Specifications"). A true and correct copy of the Specifications is attached hereto as Exhibit `B' and made a part hereof by reference. 33. Per the Agreement of Sale, the Parties closed on Lot 17 on November 14, 2005 in the office of Saidis, Flower & Lindsay, the attorney for the Plaintiffs. 34. At the closing, the parties, again, discussed Tabatha's condition and the Defendant's ability to accommodate her needs. 35. Plaintiffs became the owners of the Lot 17 by deed dated November 7, 2005. 36. On November 16, 2006, Adams, Shover, Purvis and the Plaintiffs met on Lot 17. During this meeting Adams staked out the approximate location of the footprint of the Plaintiffs' proposed house. 6 37. Lot 17 contains 52,630.871 square feet, more or less. The footprint of the house was approximately 2792 square feet. 38. The Plaintiffs reiterated during the November 16, 2006 meeting that the driveway could not be steep. 39. Adams, again, pointed to Lot 15 and stated that the grading of Lot 17 would be "like theirs." 40. With the Plaintiffs' acquiescence, Adams marked the proposed location of the house on the Property. Adams indicated that if he needed to resituate the location of the house, he would contact the Plaintiffs first. 41. Approximately three weeks after their November 16, 2005 meeting, Purvis contacted the Plaintiffs and requested the Plaintiffs' approval to resituate the footprint of the house approximately twelve feet back from Adams's original, proposed location. 42. Plaintiffs informed Purvis that they had no objection to moving the footprint of the house further back on Lot 17 and that they were willing to go even further back than twelve feet if doing so was necessary to keep the driveway and front yard from being steep. 43. There was no further communication between the Plaintiffs and the Defendant concerning the set-back of the proposed house. 44. In December of 2005, the Parties met on Lot 17. At that point, the basement had been dug. 7 45. During the December, 2005 meeting, Plaintiffs expressed concern that they believed that the basement was set too high and it appeared to the Plaintiffs that their driveway would be too steep. 46. Adams reassured the Plaintiffs, again, that the grading would be the same as that of Lot 15. 47. The Plaintiffs spoke with Adams on January 7, 2006. During that conversation, the Plaintiffs reiterated their concerns that the basement was not deep enough and the slope of the terrain in front of the house would be too high. 48. Tabatha met with Adams, Shover and Purvis again on January 19, 2006 to express her concerns about the appearance of the grading on Lot 17. She was, again, reassured that the grading of the driveway would not be steep once the house was finished. 49. During the January 19, 2006 meeting, Adams reiterated that the driveway would grade down gradually when the project was finished. He further stated that it may be necessary for him to "snake the driveway" so that Tabatha could negotiate it. 50. On February 8, 2006, Tabatha was at the construction site and noticed that the slope of the terrain for the proposed driveway was still extremely pronounced. 51. During the February 8, 2006 visit, Tabatha relayed her continued concerns to Adams. Adams joked that she could invest in some chains for her shoes. 8 52. Tabatha returned to the construction site on March 8, 2006 and expressed her dissatisfaction with the slope of the driveway. 53. Adams informed Tabatha, for the first time, that the slope of the driveway was due to township requirements. 54. On March 18, 2006, Adams stated that he understood that Tabatha was upset, but that there was nothing Adams could do about the grading because of the Township's requirements. 55. On April 28, 2006, the Plaintiffs informed Adams that they were unhappy with the house. 56. During the April 28, 2006 meeting, Adams informed the Plaintiffs that if he would have dug the basement any lower, they would have had a problem with water seeping into the basement. 57. The Plaintiffs informed Adams that they wanted a personal meeting with the excavators before they performed the final grading on Lot 17. 58. On June 1, 2006, the Plaintiffs realized that the excavators had performed the final grading of Lot 17 without first meeting with the Plaintiffs as requested. 59. On June 26, 2006, the Defendants presented the Plaintiffs with a bill of $325,763.44. This was $18,763.44 above the estimated cost of the house. 9 60. The parties closed on the house on June 27, 2006. 61. During the June 27, 2006 closing, Adams requested the Plaintiffs' permission to maintain a key to the house in order to finish some of the work. Adams promised the Plaintiffs that he would be finished with the work no later than July 7, 2006. 62. Adams did not finish the remaining work by July 7, 2006, as promised. 63. In or about mid-August of 2006, Adams informed the Plaintiffs that he had lost his key to the house. 64. On September 1, 2006, the Plaintiffs met with South Middleton Township code enforcement officers, Russell Yinger and Timothy Stout. 65. The Officers informed the Plaintiffs that the slope of the driveway and front yard should not have passed the Township's inspection, but Adams had informed the Township officers that the slope of the Property was a demand of the Plaintiffs. 66. The excavator for the project, Donald Group, Jr, ("Group"), informed the Plaintiffs that he suggested to Adams that Adams speak with the Plaintiffs about situating the garage in the basement in order to avoid a sloping driveway that would be too steep. 67. Defendant never discussed moving the driveway to the basement level with the Plaintiffs. 10 68. Plaintiffs arranged another meeting with Adams, Purvis, Shover and another one of the developers, Raymond E. Deihl, on September 11, 2006. 69. During this meeting the Plaintiffs expressed their dissatisfaction with the house and Lot 17. 70. Despite the numerous discussions between the parties identified above, Adams stated that the Plaintiffs never informed him that the driveway could not be steep. 71. As of the date of this filing, the following items, among others, are not finished or have not been built to the satisfaction of the Plaintiffs: a. the sidewalk; b. defective window hardware; and c. the gable on the house has poor water run off issues that are causing water to stain the siding beneath it. 72. In or about September of 2006, the Plaintiffs were informed that Defendant had no intention of finishing the work or addressing any of the Plaintiffs' problems with the work the Defendant had done. Count One - Rescission 73. The averments of paragraphs 1 through 72 above are incorporated herein by reference as if fully set forth. 11 . 74. Defendant is in breach of the Agreement with the Plaintiffs because Defendant failed to construct and deliver to the Plaintiffs a house and property that will accommodate the Plaintiffs' needs as the parties had agreed. 75. The Defendant's breach of the Agreement has deprived the Plaintiffs of the benefit they reasonably expected. 76. The Plaintiffs cannot be fully compensated by money damages for the part of the benefit that they have been deprived by the Defendant's breach. 77. The Defendant's failure to perform will result in little harm to the Defendant, while the harm to the Plaintiff is significant. 78. It is unlikely that the Defendant will perform its obligations to the Plaintiffs. 79. Defendant's failure to perform does not comport with the standards of good faith and fair dealing. 80. The Defendant's breach of its agreement with the Plaintiffs is substantial and material. WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter an award granting a rescission of the Agreement between the Plaintiffs and the Defendant together which such other relief as this Court deems just and appropriate under the circumstances. 12 Count II - Breach of Contract- Demand for Damages (in the alternative to Count I) 81. The averments of paragraphs 1 through 80 above are incorporated herein by reference as if fully set forth. 82. The Specifications provide that the Defendant would be responsible for removing and stockpiling topsoil from Lot 17. 83. The Defendant incorporated into the Plaintiff's purchase price an excavation allowance of $12,000. 84. Defendant failed to remove the topsoil and to properly excavate Lot 17. 85. Defendant's failure to remove the topsoil and excavate Lot 17 constitutes a breach of the terms of the Agreement of Sale and the incorporated Specification. 86. Plaintiff has been damaged by the Defendant's breach. 87. It is believed and therefore averred that the house and lot cannot now be reasonably adapted to provide a flat terrain that will accommodate Tabatha's needs. Nevertheless, if the Court finds that the house and lot can be reasonably adapted to provide the Plaintiffs' with a flat driveway and yard, Plaintiffs should be compensated in an amount sufficient to pay for these alterations. 88. Plaintiffs should also be compensated for the remaining work on the property that has not yet been completed or has not been completed to Defendants' satisfaction. 13 WHEREFORE, Plaintiffs respectfully request this Court to enter judgment in its favor and against Defendants in an amount sufficient to compensate the Plaintiffs the cost of having the Property excavated and other amounts necessary to remedy the property to Plaintiffs' satisfaction together with an award of attorneys' fees, costs, pre judgment and post judgment interest at the legal rate, and such other and further relief as this Court deems just and appropriate under the circumstances. Count III - Negligent Misrepresentation 89. The averments of paragraphs 1 through 88 above are incorporated herein by reference as if fully set forth. 90. Defendant's site plan and statements to the Plaintiffs as set forth above constituted a representation to Plaintiffs that the building structures could be constructed in the locations shown without resulting in a significantly steep slope in the front yard and driveway based upon Defendant's visual survey of the site and without unreasonable additional expense for grading the property. 91. Defendants' representations as set forth in the Agreement of Sale, the Specifications, site plans, and verbal assurances were false. 92. The Defendant's representations were made with the intent to induce Plaintiffs' reliance thereon. 93. Plaintiffs justifiably relied upon Defendant's misrepresentations. 14 f 94, Plaintiffs suffered damages as a direct and proximate result of Defendant's negligent misrepresentations. WHEREFORE, the Plaintiffs respectfully request that this Honorable Court enter an award granting a rescission of the Agreement between the Plaintiffs and the Defendant or in the alternative granting damages, together which such other relief as this Court deems just and appropriate under the circumstances. Count IV Promissory Estoppel (in the alternative) 95. The averments of paragraphs 1 through 94 above are incorporated herein by reference as if fully set forth. 96. The Defendant promised that the it would grade the Property in a manner that would accommodate Tabatha's demands for a flat terrain and driveway. 97. In reliance on the Defendant's promises, the Plaintiffs agreed to purchase Lot 17 and to contract with the Defendant for the construction of Plaintiffs' new house thereon. 98. In reliance on the Defendant's promises, the Plaintiffs refrained from purchasing another property or from contracting with another builder for the construction of their new home. 99. Injustice can be avoided only by enforcing the Defendant's promises. WHEREFORE, Plaintiffs respectfully request this Court to enter judgment in its favor and against Defendants in an amount sufficient to compensate the Plaintiffs the cost of having 15 i the Property excavated and other amounts necessary to remedy the property to the Plaintiffs' satisfaction together with an award of attorneys' fees, costs, pre judgment and post judgment interest at the legal rate, and for such other and further relief as this Court deems just and appropriate under the circumstances. Count V - Breach of Express and Implied Warranties 100. The averments of paragraphs 1 through 99 above are incorporated herein by reference as if fully set forth. 101. Defendant expressly and impliedly warranted that the grading of Lot 17 would be done in a manner that would result in a flat yard and driveway. 102. The front yard and driveway of Lot 17 is of an extremely steep slope and is unsuitable for the Plaintiffs' needs. WHEREFORE, Plaintiffs respectfully request this Court to enter judgment in its favor and against Defendants in an amount sufficient to compensate the Plaintiffs the cost of having the Property excavated together with an award of attorneys' fees, costs, pre judgment and post judgment interest at the legal rate, and for such other and further relief as this Court deems just and appropriate under the circumstances. Count VI - Fraud 103. The averments of paragraphs 1 through 102 above are incorporated herein by reference as if fully set forth. 16 104. Adams's statements concerning the Township's grading requirement were made falsely. 105. Adams's statements concerning the Township's grading requirements were material to the transaction at hand. 106. Adams's statements were made falsely with knowledge of their falsity or recklessness as to whether they were true or false. 107. Adams's statements were made with the intent of misleading the Plaintiffs into relying on the statements. 108. The Plaintiffs justifiably relied on the misrepresentations of Adams. 109. Plaintiffs have suffered damages proximately caused by their reliance on the Defendant's misrepresentations. WHEREFORE, Plaintiffs respectfully request this Court to enter judgment in its favor and against Defendant in an amount sufficient to compensate the Plaintiffs the cost of having the Property excavated together with an award of attorneys' fees, costs, pre judgment and post judgment interest at the legal rate, punitive damages, and for such other and further relief as this Court deems just and appropriate under the circumstances. 17 Count VII - Violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. &201-1 et seq. 110. The averments of paragraphs 1 through 109 above are incorporated herein by reference as if fully set forth. 111. Defendant represented that Lot 17 meets the Township's grading requirement when in fact it does not. 112. Defendant has failed to comply with the terms of its guarantees and warranties to the Plaintiffs. 113. Defendant has engaged in fraudulent and deceptive conduct which created a likelihood of confusion and misunderstanding. WHEREFORE, Plaintiffs respectfully request this Court to enter judgment in its favor and against Defendants in an amount sufficient to compensate the Plaintiffs the cost of having the Property excavated and other amounts necessary to remedy the property to the Plaintiffs' satisfaction together with an award of attorneys' fees, costs, pre judgment and post judgment interest at the legal rate, punitive damages and for such other and further relief as this Court deems just and appropriate under the circumstances. 18 Respectfully submitted, METTE, EVANS & WOODSIDE By: C9S_ :A. Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs Date: June 20, 2007 19 t VERIFICATION I, Tabatha Santore-Umbelina, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language are that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Dated: (' I S LO 9 Tabatha Santore- 4700341 Exl.?6,1 A 13 11-ul"Arf-I1[-1L111Li+'f?LGl• 1 1'Vl% 111L' VL-11-;1%v1• -rr ? tI-aawa..-1 This form recommended and approved for, but not restricted to use by, the members of the Pennsylvania Association of REALTORS'n (PAR). SELLER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER BROKER (Company) F PHONE ! ` Y Gi'G ADDRESS FAX r row r BROKER IS THE AGENT FOR SELLER. Designated Agent(s) for Seller, if applicable: OR Broker is NOT the Agent for Seller and is a/an: ? AGENT FOR BUYER ? TRANSACTION LICENSEE BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER BROKER(Company) "„ r? 5 ' ?% ' r -? Fla- G. a PHONE ADDRESS / ?1? ft/ I / rflti is 'd'i FAX G4? BROKER IS THE AGENT FOR BUYER. Designated Agent(s) for Buyer, if applicable: OR 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 Dual Agent. AB of Broker's licensees are also Dual Agents UNLESS there are separate Designated Agents for Buyer and Seller. If the same Licensee is desiggated for Seller and Buyer, the Licensee is a Dual Agent. 1. 4is Agrietnuntt dated 2. is between SELLER/BUILDER: called -Seller,- and BUYER(S): called "Buyer." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 m 51 52 53 54 55 58 57 2. PROPERTY (11-00) Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase: ALL THAT CERTAIN lot olyiece of ground with buildings and improvements to be erected thereon, if any, known as: ?.? Name of Subdivision l?• -=,? 2?ca J 4 Phase Lot # 1 . Model Street Address OY/(- ' t J" J ?r z f in the ..,,K. Js h A" of County of ??y?Jjr?fis t G' in the Coinmonwe6ith of Pennsylvania, Zip Code Identification (e.g., Tax ID#; Parcel #; Lot and Block; Plan Book Volume, Page; Deed Book, Page, Recording Date) _ 3. PURCHASE PRICE (1-02) _ (A) Total Purchase Price ! art ?%v ,?? ?F l J " tr ^? F f? ? trrnit / ' "a t U.S. Dollars which will be paid to Seller by Buyer as follows: (B) Base Price $ (C) Lot Premium, if any $ (D) Total Options/Ext WAlterations (see attached addendum) $ TOTAL PURCHASE PRICE $ 342 71 ,L 4. PAYMENT TERMS (1-02) (A) Cash or check at signing this Agreement: $ (B) Cash or check within _ days of the execution of this Agreement: $ (C) Non-refundable pre-paid options/extras/alterations paid to Seller on or before $ (D) $ (E) Cash, cashier's or certified check at time of settlement: $ TOTAL PURCHASE PRICE S ? i_ ss't''.' (F) Deposits paid on account of purchase price to be held by Broker for Seller, unless otherwise stated here: (G) Seller's written approval to be on or before: (H) Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated here: (I) Payment of transfer taxes will be divided equally between Buyer and Seller unless otherwise stated here: (J) At time of settlement, the following will be adjusted pro-rata on a daily basis between Buyer and Seller, reimbursing where applicable: taxes; rents; condominium fees and homeowner association fees, if any; water and/or sewer fees, if any, together with any other lienable munici- pal service. The charges are to be pro-rated for the period(s) covered: Seller will pay up to and including the date of settlement; Buyer will pay for all days following settlement, unless otherwise stated here: 5. SCHEDULE OF CONSTRUCTION (11-00) (A) Commencement Date: Seller estimates that Seller will commence construction on or about l iE'S Seller reserves the right to delay commencement of construction until Buyer has received and signed a valid mortgage commitment in accordance with Paragraph 6. er1 ?/?% _ Buyer (B) Completion Date: Seller estimates completion of construction on or about e , / hereby acknowledges that the above estimated time of completion on the part of Seller is made as an accommodation to Buyer to assist Buyer in formulating future plans. However, if commencement, completion, and/or settlement are delayed due to inclement weather, strikes, delavs in issuance of permits, unavailabilty of labor or materials, or any other reason beyond Seller's control, such times and settlement hereunder will be automatically extended accordingly, and time is not deemed to be of the essence. (C) Settlement: Settlement hereunder will be held on a date which is within 10 days (unless otherwise specified here ) after Seller supplies Buyer with a written notice of settlement. However, at the time of settlement, the house and premises will have been substantially completed. If the municipality or governmental authority requires a Use & Occupancy permit, Seller will provide one at settlement. 58 Buyerlnitials: 113 Pennsylvania Association of ® REALTORSs anuan ---- ? A/S-NC Page I of 6 Seller Initials: 5r, COPYRIGHT PENNSYLVANIA ASSOCIATION OF R.EALTORSM 2004 ,,n4 117 ? WAIVED. This sale is NOT contingent on mortgage financing. • 61 ??_ ELECTED 132 (A) This sale is contingent upon Buyer obtaining mortgage financing as follows: t 63 $ 1. Amount of mortgage loan 64 2. Minimum Term- ? years ` 65 3. Type of mortgage 66 4. Interest rate %; however, Buyer agrees to accept the interest rate as may be committed by the mortgage lender, not to 67 exceed a maximum interest rate of %. ss 5. Discount points, loan origination, loan placement and other fees charged by the lender as a percentage of the mortgage loan (excluding s0 any mortgage insurance premiums or VA funding fee) not to exceed not to exceed % (0% if not specified) of the mortgage loan. 70 The interest rate and fees provisions required by Buyer are satisfied if a mortgage lender makes available to Buyer the right to guarantee an :'I interest rate at or below the Maximum Interest Rate specified herein with the percentage fees at or below the amount specified herein. Buyer - 72 gives Seller the right, at Seller's sole option and as pennitted by the mortgage lender and applicable laws, to contribute financially, without 73 promise of reimbursement, to the Buyer and/or lender to make the above terms available to Buyer. 74 (B) Within 10 days of the execution of this Agreement, Buyer will make a completed, written mortgage application for the mortgage terms speci- 75 red above to a responsible mortgage lender. The Broker for Buyer, if any, otherwise the Broker for Seller, is authorized to communicate s ? 76 t V with the mortgage lender for the purposes-of stTStinR inthe!motttg?loan process. Buyer tjt +-€' _ ?1ra tten commitment is not received by Seller by the above date t d t it /( ?' ' G?? '- 71 , men a e - C) 1. Mortgage comm ge •t ? 2• 7 ? and Seller agree to extend the mortgage commitment date until Seller terminates this Agreement in writing by notice to Buyer. Te 8 7 2: Upon receipt of a mortgage commitment, Buyer will promptly deliver a copy of the commitment to Seller. 80 3. Seller has the option to terminate this Agreement in writing, on or after the mortgage commitment date, if the mortgage commitment: SP 81 a. Is not valid until the date of settlement, OR at 82 b. Is conditioned upon the sale and settlement of any other property, OR S2 83 c. Contains any other condition not specified in this Agreement. 83 84 4. In the event Seller does not terminate this Agreement as provided above, Buyer has the option to terminate this Agreement in writing if 85 the mortgage commitment: 65 86 a. Is not obtained by or valid until the date of settlement, OR 36 87 b. Is conditioned upon the sale and settlement of any other property which do not occur by the date of settlement, OR 87 88 c. Contains any other condition not specified in this Agreement which Buyer is unable to satisfy by the date of settlement 68 89 5. If this Agreement is terminated as specified in paragraphs 6 (C) (2), (3) or (4), all deposit monies paid on account of purchase price will 90 be returned to Buyer. Buyer will be responsible for any premiums for mechanics lien insurance and/or tide search, or fee for cancellation ?q 91 of same, if any; AND/OR any premiums for flood insurance and/or fire insurance with extended coverage, insurance binder charges or can- 92 cellation fee, if any; AND/OR any appraisal fees and charges paid in advance to mortgage lender. R_>. 93 (D) Seller will not be responsible to Buyer or Buyer's mortgage lender to escrow any funds for any reason. In the event Buyer's mortgage lender 94 requites an escrow of funds as a condition to complete settlement, then Buyer agrees to provide such escrow funds and complete settlement 95 hereunder as specified in this Agreement. This paragraph will survive settlement. 96 (E) Seller Assist 90 97 r?l NOT APPLICABLE 97 98 ? APPLICABLE. Seller will pay: 08 99 ? $ , maximum, toward Buyer's costs as permitted by the mortgage lender. 99 100 ? ^t` 191 FHA/VA, IF APPLICABLE 01 i 102 103 (F) It is expressly agreed that notwithstanding any other provisions of this contract, Buyer will not be obligated to complete the purchase of the 104 Property described herein or to incur any penalty by forfeiture of earnest money deposits or otherwise unless Buyer has been given, in accor- 105 dance with HUD/FHA or VA requirements, a written statement by the Federal Housing Commissioner, Veterans Administration, or a Direct 106 Endorsement Lender setting forth the appraised value of the Property of not legs than $ (the dollar amount to be insert- 107 ed is the sales price as stated in the Agreement). Buyer will have the privilege and option of proceeding with consummation of the contract with- 106 out regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the Department .. tog of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property. Buyer should satisfy him- ...r 110 self/herself that the price and condition of the Property are acceptable. ill Warning: Section 1010 of Title 18, U.S.C., Department of Housing and Urban Development and Federal Housing Administration i; ? 112 Transactions, provides, "Whoever for the purpose of ... influencing in any way the action of such Department, makes, passes, utters, or pub- lishes any statement, knowing the same to be false ... shall be fined under this title or imprisoned not more than two years, or both." 114 (G) U.S. Department of Housing and Urban Development (HUD) NOTICE TO PURCHASERS: Buyer's. Acknowledgement Its ? Buyer has received the HUD Notice "For Your Protection: Get a Home Inspection" (see Notices and Information on Property Condition 116 Inspections). Buyer understands the importance of getting an independent home inspection and has thought about this before signing this 117 Agreement. Buyer understands that FHA will not perform a home inspection nor guarantee the price or condition of the Property. 118 Buyer's Initials Date - 1 i9 (H) Certification We the undersigned, Seller(s) and Buyer(s) party to this transaction each certify that the terms of this contract for purchase are 120 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 transac- 121 tion is attached to this Agreement. 122 7. INSPECTIONS (1-02) 123 (A) Seller agrees to permit inspections by authorized appraisers, reputable certifiers, insurer's representatives, surveyors, municipal officials and/or 124 Buyer as may be required by the mortgage lender, if any, or insuring agencies. Seller further agrees to permit any other inspections required by i25 or provided for in the terms of this Agreement. Buyer has the right to attend all inspections. 126 (B) Pre-settlement Inspection 127 1. Buyer reserves the right to make a pre-settlement walk-through inspection of the Property when the Property is substantially complete. 128 Seller will notify Buyer prior to settlement of the date and time of Buyer's pre-settlement walk-through inspection of the Property. 129 2. At the pre-settlement inspection, Buyer and Seller will complete and sign a list of items (punch list) to be completed, modified, or replaced 130 within thirty (30) days after settlement. Items that cannot be completed, modified, or replaced within 30 days of settlement due to events 131 beyond Seller's reasonable control will be completed by Seller as soon as is reasonably possible, not to exceed one year or days 132 after settlement. This paragraph will survive settlement. 133 3. Buyer's failure to inspect the Property on the date of the scheduled pre-settlement inspection or Buyer's failure to complete and sign the 134 pre-settlement inspection fort constitutes a waiver of Buyer's right to inspect the Property, and Buyer will accept the Property at settle- isa 135 ment in its then present condition without obligation of modification or replacement. 136 4. Buyer's right to make this inspection is not waived by any other provision of this Agreement. 137 5. Seller will have heating and all utilities (including fuel(s)) on for the pre-settlement walk-through inspection. ,." t3a Buyer Initials: -? A/S-NC Page 2 of 6 Seller Initials: ,.. :ao 141 142 143 144 145 145 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 179 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 Seller will provide evidence that there are no wood-boring insects on the Property, if required by lender. If a wood infestation inspection is required, Buyer agrees to reimburse Seller for the cost of the inspection. If active infestation(s) exists, Seller agrees, at Seller's expense and before settlement, 141 to treat for active infestation(s), in accordance with applicable laws. 142 9. RADON CONTINGENCY (11-00) 143 ? Seller will not install preparatory work for a radon mitigation system. (See Radon Notice) 144 Seller will install preparatory work for a radon mitigation system. (See Radon Notice) _ 145 i46 147 10. STATUS OF WATER (11-00) 140 Seller represents that at time of settlement this property will be served by: 149 a? Public Water - Name of Service Provider ?/,V ;-149 150 ? On-site Well Water which meets applicable governmental standards 151 ? Community Water 152 153 11. STATUS OF SEWER (11-00) 154 Seller represents that property is served by: 155 Public Sewer - Name of Service Providers s 156 ? Individual On-lot Sewage Disposal System (See Sewage Notice 1) 157 ? Community Sewage Disposal System 158 ? Holding Tank (See Sewage Notice 3) 159 166 12. NOTICES, ASSESSMENTS & GOVERNMENT REQUIREMENTS (11-00) 161 (A) Seller represents as of Seller's execution of this Agreement, that no public improvement, condominium or homeowner association assessments 162 have been made against the Property which remain unpaid and that no notice by any government or public authority has been served upon Seller 163 or anyone on the Seller's behalf, including notices relating to violations of zoning, housing, building, safety or fire ordinances which remain 164 uncorrected, and that Seller knows of no condition that would constitute violation of any such ordinances which retrains uncorrected, unless 165 otherwise specified here: 166 167 (B) Seller knows of no other potential notices (including violations) and assessments except as follows: 168 169 (C) Seller will be responsible for any notice of improvements or assessments received on or before the date of settlement. 170 (D) Buyer is advised that access to a public road may require issuance of a highway occupancy permit from the Department of Transportation. 171 (E) All necessary permits will be obtained and paid for by Seller prior to settlement. 172 (F) Seller will comply with all restrictions and requirements imposed by any governmental authorities. 173 13. TITLE, SURVEYS, & COSTS (11-00) 174 (A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing deed 175 restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances, easements of roads, easements visible upon the 176 ground, easements of record, privileges or rights of public service companies, if any; otherwise the title to the above described real estate will 177 be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. 178 (B) In the event Seller is unable to give a good and marketable title and such as will be insured by a reputable Title Company at the regular rates, 179 --,as specified in paragraph 13(A), Buyer will have the option of taking such title as Seller can give without changing the price or of being repaid too all monies paid by Buyer to Seller on account of purchase price and Seller will reimburse Buyer for any costs incurred by Buyer for those items 181 specified in paragraph 13(C) and in paragraph 13(D) items (1), (2), (3); and in the latter event there will be no further liability or obligation on 132 either of the parties hereto and this Agreement will become VOID. 183 (C) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney, for the preparation of an adequate 184 legal description of the Property (or the correction thereof), will be secured and paid for by Seller. 185 (D) Buyer will pay for the following: (1) The premium for mechanics lien insurance and/or title search, or fee for cancellation of same, if any; 186 (2) The premiums for flood insurance and/or fire insurance with extended coverage, insurance binder charges or cancellation fee, if any; 187 (3) Appraisal fees and charges paid in advance to mortgage lender, if any; (4) Buyer's customary settlement costs and accruals; (5) Initiation fee 188 or capital funding fee, if any: $ 189 (E) Buyer has reviewed the final subdivision plan and is familiar with the grading plans, showing the location and contour of the lot being pur- 190 chased, storm drainage plans including piping and easements, alluvial soils, conservation easements, wetlands, or 100 year flood plain condi- 191 tions on or surrounding Buyer's lot. 192 14. ZONING CLASSIFICATION (11-00) 193 Failure of this Agreement to contain the zoning classification (except in cases where the property {and each parcel thereof, if subdividable) is zoned 19,1 solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer, and, if voided, any deposits ten- 195 qut any requirement for court action. dered by the Buyer will be returned to the Buyer with 196 ` Zoning Classification: 197 15. LANDSCAPING & DRIVEWAY (11-00) 198 (A) Seller will attempt to preserve as many of the existing trees or shrubs as reasonably possible during the construction of the improvements and i£9 house on the premises. It is expressly agreed that Seller does not guarantee or warrant the survival of any trees or shrubs existing on the premises 200 prior to construction. Any existing trees or shrubs that may die after settlement are the sole responsibility of Buyer. Seller will be responsible to ?0i grade and seed the disturbed areas only. Any soil washouts from rain or melting snow or burnouts due to droughts after settlement are the sole 202 responsibility of Buyer. As to the quality or quantity of the growth of grass, it will be Buyer's responsibility to water, fertilize and reseed as nec- v n essary after settlement. 204 (B) Buyer acknowledges that, due to adverse weather conditions and other events beyond Seller's reasonable control, items including the driveway ^?:i surface, grading and seeding, exterior painting or staining, and exterior concrete surfaces may not be completed at time of settlement. Unless 205 otherwise agreed, no portion of the purchase price or option payments will be placed in an escrow account or withheld from Seller at settlement 20% to compensate for incomplete items. Seller will complete the items within a reasonable time after settlement as weather conditions permit. 208 (C) This paragraph will survive settlement. 209 16. SUBSTITUTIONS (11-00) 210 BUYER AND SELLER ACKNOWLEDGE THAT THE BUILDINGS AND IMPROVEMENTS ON THE PREMISES WILL BE SUB- 2 i, STANTIALLY SIMILAR TO THE ESTABLISHED BUILDING SPECIFICATIONS. BUYERALSO ACKNOWLEDGES THAT SELLER 21:: HAS THE RIGHT TO MAKE SUBSTITUTIONS OF MATERIALS OR PRODUCTS OF SUBSTANTIALLY EQUAL OR BETTER 213 QUALITY AT SELLER'S SOLE DISCRETION, AND THAT ACTUAL MATERIALS AND PRODUCTS MAY VARY FROM SAMPLE '21 MATERIALS AND PRODUCTS. 215 Buyer Initials !' Vi d 7`14 A/S-NC Page 3 of 6 Seller Initials: 216 216 218 THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHTS OF SUP- PORT UNDERNEATH THE SURFACE LAND DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH 219 COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL SUCH COAL AND IN THAT CONNECTION, DAMAGE MAY 220 RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. (This notice 221 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 right 222 of protection against subsidence resulting from coal mining operations, and that time property described herein may be protected from damage 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 of com- ^24 plying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27, 1966" Buyer agrees to 225 sign the deed from Seller which deed will contain the aforesaid provision. 226 18. POSSESSION (11-00) Possession is to be delivered by deed, keys and physical possession to a clean building. The lot and building(s) will be free 227 of debris at day and time of settlement. 228 19. RECORDING (3-85) This Agreement will not be recorded in the Office for the Recording of Deeds or in any other office or place of public record 229 and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement. 230 20. ASSIGNMENT (3-85) This Agreement will be binding upon the parties, their respective heirs, personal representatives, guardians and successors, '.31 and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer will not transfer or assign this 232 Agreement without the written consent of Seller. 233 21. DEPOSIT & RECOVERY FUND (1-00) 234 (A) Deposits paid by Buyer within 30 days of settlement will be by cash, cashier's or certified check. Deposits, regardless of the form of payment 235 and the person designated as payee, will be paid to individual identified in paragraph 4(F), who will retain them in an escrow account until con- 236 summation or termination of this Agreement in conformity with all applicable laws and regulations. Any uncashed check tendered as deposit 237 may be held pending the acceptance of this offer. 238 (B) In the event of a dispute over entitlement to deposit monies, a broker holding the deposit is required by the Rules and Regulations of the State 239 Real Estate Commission (49 Pa. Code §35.327) to retain the monies in escrow until the dispute is resolved. In the event of litigation for the 240 return of deposit monies, a broker will distribute the monies as directed by a final order of court or the written Agreement of the parties. Buyer 241 and Seller agree that, in the event any broker or affiliated licensee is joined in litigation for the return of deposit monies, the attorneys' fees and 242 costs of the broker(s) and licensee(s) will be paid by the party joining them. 243 (C) A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate licens- 244 ee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exhausting all 245 legal and equitable remedies. For complete details about the Fund, call (717) 783-3658, or (800) 822-2113 (within Pennsylvania) and (717) 783- 246 4854 (outside Pennsylvania). 247 22. CONDOMINIUM/PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) PUBLIC OFFERING STATEMENT (1-00) 248 ]?( NOT APPLICABLE 249 ? APPLICABLE: CONDOMINIUM 250 (A) Buyer acknowledges that the Property is a unit of a condominium as defined by the Uniform Condominium Act. Seller is a declarant of 251 the condominium and is required to provide Buyer with a public offering statement. (See Condominium/Umform Planned Community 252 Notice for definitions of declarant, public offering statement, and condominium.) 253 (B) The delivery of the public offering statement must be made no later than the date the Buyer executes this Agreement. Buyer may cancel 264 this Agreement within fifteen (15) days after receiving the public offering statement and within fifteen (15) days of receipt of any amend- zfi= ment to the Statement that materially and adversely affects Buyer. ? APPLICABLE: PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) 25, (A) Buyer acknowledges that the Property is part of a planned community as defined by the Uniform Planned Community Act. Seller is a 256 declarant of the planned community and is required to provide Buyer with a public offering statement. (See Condominium/Uniform 259 Planned Community Notice for definitions of declarant, public offering statement, and planned community.) 260 (B) The declarant must provide Buyer with a copy of the public offering statement and its amendments no later than the date Buyer executes 261 this Agreement. Buyer may cancel this Agreement within seven (7) days after receiving the public offering statement and within seven (7) 262 days after receiving any amendment to the contract that would materially and adversely affect Buyer. 263 23. MAINTENANCE & RISK OF LOSS (11-00) Seller will bear risk of loss from fire or other casualties until time of settlement. In the event of dam- 214 age by fire or other casualties to any property included in the sale that is not repaired or replaced prior to settlement, Buyer will have the option of 265 rescinding this Agreement and promptly receiving all monies paid on account of purchase price or of extending settlement until such time as Seller 'm can deliver the property in completed condition. Buyer is hereby notified that Buyer may insure Buyer's equitable interest it,, this Property as of the 267 time of execution of this Agreement. 268 24. RELEASE (11-00) Buyer and Seller hereby release, quit claim and forever discharge ALL BROKERS, their LICENSEES, EMPLOYEES, .1.69 and any OFFICER or PARTNER of any one of them and any other PERSON, FIRM, or CORPORATION who may be liable by or through 278 them, from any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of the conse- '71 quences thereof. This release will survive settlement. 272 25. REPRESENTATIONS (I1-00) 273 (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures, plans, building specifications, or warranties made by Seller, Brokers, their licensees, employees, officers, or partners are not a part of this Agreement unless expressly incorporated or stated 7!q in this Agreement. 276 (B) Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made an assessment of the plan, drawings, specifi- 27-, cations, or such documents as have bearing on the nature and quality of the structures to be built by Seller. Furthermore. Brokers, their licensees, in employees, officers, and partners make no representation with respect to permits or such other evidence of goverment approval for the 279 construction of the structures to be built by Seller, of the environmental conditions, the permitted uses, the financial condition of Seller, or the no conditions existing in the locale where the property is situated; nor have they made an inspection of the components, appliances, systems, or 261 consumer products to be installed in or about the Property. 202 (C) It is further understood that this Agreement contains the whole Agreement between Seller and Buyer and there are no other terms, obligations, 28, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement 264 will not be altered, amended, changed, or modified except in writing executed by the parties. 285 (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraphs. 280 z2o 221 M 223 224 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 264 2ss 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 '283 284 285 286 ;? w1 tE l) 287 Buyer Initials: A/S-NC Page 4 of 6 Seller Initials: 287 ? \ 29%7 x.26.- WARRANTIES (11-00) (A) Assignment of Manufacturer's Warranties: Seller hereby assigns to Buyer the manufacturer's warranties on all appliances, equipment, and •' 290 other consumer products to be installed in or on the Property. Copies of these warranties will be delivered to Buyer. Seller makes no warranties, 7, 2,91 representations, or guarantees, with respect to the appliances, equipment and consumer products and all such warranties, representations, and - 292 guarantees are hereby disclaimed. The sole remedy of Buyer as to any such items will be to make such claims as are appropriate under the man- . ,. 293 ufacturer's warranties. 29I REPRE- (B) Limited Warranty: Except as set forth in any limited warranty that may be provided herewith, SELLER MAKES NO OTHER SENTATIONS OR WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THOSE '. 9s OF WORKMANLIKE CONSTRUCTION, HABITABILITY, DESIGN, CONDITION, QUALITY OR OTHERWISE AS TO THE 297 PROPERTY AND THE RESIDENCE AND OTHER IMPROVEMENTS CONSTRUCTED THEREON, AND SELLER HEREBY 290 EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATIONS OR WARRANTIES. Buyer hereby acknowledges and accepts such dis- .... °39 claimer and agrees to waive any and all rights Buyer may have by virtue of such representations and warranties. Except for the warranties pro- - 300 vided by Seller, Buyer assumes the risk of any and all damage from the date of settlement, occurring in or appearing on the Property regardless , 301 of the cause thereof. Buyer's assumption of this risk is partially in consideration of the amount of the purchase price of the Property which is 2; I 302 lower than it would be if Seller was to be held responsible for any such risks by virtue of said expressed or implied representations or warranties. 1,02 303 27. DATES/TIME IS OF THE ESSENCE (1-02) 393 304 (A) The said date for settlement and all other dates and times referred to for the performance of any of the obligations of this Agreement are 304 305 agreed to be of the essence of this Agreement and are binding. 305 306 (B) For the purposes of this Agreement, number of days will be counted from the date of execution, by excluding the day this Agreement was 306 307 executed and including the last day of the time period. 307 306 (C) The date of settlement is not extended by any other provision of this Agreement and may only be extended by mutual written agreement of 30- 309 the parties. 309 310 (D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. Any pre-printed time periods are negotiable 310 311 and may be changed by striking out the pre-printed text and inserting a different time period acceptable to all parties. 311 312 28. DEFAULT (1-02) 312 313 (A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer: 313 314 1. Fail to make any additional payments as specified in paragraph 4; OR 314 315 2. Furnish false or incomplete information to Seller, Broker(s), or the mortgage lender, if any, concerning Buyer's legal or financial status, or 315 316 fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mort- 316 317 gage loan commitment; OR 317 318 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement. 318 319 (B) Unless otherwise checked in paragraph 28 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies, in one of the 319 320 following manners: 320 321 1. On account of purchase price; OR 321 322 2. As monies to be applied to Seller's damages; OR 322 323 3 As liquidated damages for such breach. 323 324 (C) A Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages. 324 325 (D) If Seller retains all sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 28 (B) or (C), Buyer and Seller 325 326 will be released from further liability or obligation and this Agreement will be VOID, 326 327 29. MEDIATION (7-96) 327 328 q NOT AVAILABLE 328 329 WAIVED. Buyer and Seller understand that they may choose to mediate at a later date, should a dispute arise, but that there will be no obli- 329 330 gation on the part of any party to do so. 330 331 ? ELECTED 331 332 (A) Buyer and Seller will try to resolve any dispute or claim that may arise from this Agreement through mediation, in accordance with the Rules 332 333 and Procedures of the Home Sellers/Home Buyers Dispute Resolution System. Any agreement reached through a mediation conference and 333 334 signed by the parties will be binding. 334 335 (B) Buyer and Seller acknowledge that they have received, read, and understand the Rules and Procedures of the Home Sellers/Home Buyers 125 336 Dispute Resolution System. (See Mediation Notice.) 336 337 (C) This agreement to mediate disputes arising from this Agreement will survive settlement. 337 338 Buyer Initials' r A/S-NC Page 5 of 6 Seller Initials: 338 346 341 341 342 342 343 343 344 344 345 345 346 31. SPECIAL CLAUSES (11-00) 46 347 (A) Buyer and Seller have received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336. 347 348 (B) Buyer and Seller have received a statement of their respective estimated closing costs before signing this Agreement. 346 341 (C) ? Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller is holding deposit money) before sign- -49 350 ing this Agreement. 350 351 (D) Buyer has received the Seller's Property Disclosure Statement before signing this Agreement, if required by law. Note: The Seller's 351 352 Property Disclosure Law does not require a disclosure form when: 352 353 1. A one-year written warranty covering the construction will be provided; 353 354 2. The building will be inspected for compliance with the applicable building code or, if none, a nationally recognized model building code; 354 355 AND 355. 356 3. A certificate of occupancy or a certificate of code compliance will be issued for the dwelling. 356 357 (E) The following are part of this Agreement if checked: 357 358 ? Sale & Settlement of Other Property ? Settlement of Other Property Contingency Addendum (PAR Form SOP) 358 359 Contingency Addendum (PAR Form SSP) ? 359 360 ? Sale & Settlement of Other Property Contingency ? 360 361 with Right to Continue Marketing Addendum ? 361 362 (PAR Form SSP-CM) 362 363 (F) The following exhibits are made part of this Agreement if checked: 363 364 '4;1 Plot Plan of Lot ? Options/Extras/Alterations 364 365 House Plan/Floor Plan/Elevation ? New Construction Warranty 365 366 ? Floor Plan Reversed Restrictive Covenants/Deed Restrictions 366 367 ? Other ? 367 368 C Building Speciftcationsr7? i fir,a ? 368 369 D Standard Features 369 370 Buyer and Seller acknowledge that they have read and understand the notices and explanatory information set forth in this Agreement. 370 371 Buyer acknowledges receiving a copy of this Agreement at the time of signing. 371 372 NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return by facsimile transmission (FAX) of this 272 373 Agreement, and all addenda, bearing the signatures of all parties, constitutes acceptance of this Agreement. Parties to this transaction are advised 173 374 to consult an attorney before signing if they desire legal advice. 374 375 BUYER'S MAILING ADDRESS: * / ! ?r fr i f 375 376 376 377 BUYER'S CONTACT NUMBER(§): y 7. ( ! i r i i 377 378 g f WITNESS :. -. j /t S) r .. ,4 > BUYS ! t DATE 378 ? DATE ? A ? ?? ' n f 379 379 42 - BUYER - -- WITNESS ' 380 WITNESS BUYER DATE 380 381 382 365 386 SELLER'S MAILING ADDRESS: 387 388 SELLER'S CONTACT NUMBERi 389 WITNESS 39o WITNESS 391 WITNESS 386 387 368 DAT$% -I-,' 389 DATE 390 SELLER DATE 391 392 Brokers'/Licensees' Certifications (check all that are applicable): 392 393 ? Regarding FHA Mortgages: The undersigned Licensees involved in this transaction, on behalf of themselves and their brokers, certify that 3,,3 394 the terms of this contract for purchase are true to the best of their knowledge and belief, and that any other agreement entered into by any of 394 395 these parties in connection with this transaction is attached to this Agreement. 395 396 ? Regarding Mediation: The undersigned ? Broker for Seller ? Broker for Buyer agrees to submit to mediation in accordance with 396 397 paragraph 29 of this Agreement. 397 398 Broker for Seller (Company Name) 399 ACCEPTED BY 398 399 400 Broker for Buyer (Company Name) v > s ?r F rt ri + 400 401 ACCEPTED BY"- __e ' DATE 401 402 A/S-NC Page 6 of 6 402 DATE DISPUTE RESOLUTION SYSTEM RULES AND PROCEDURES 1. Agreement of Parties The Rules and Procedures of the Dispute Resolution System (DRS) apply when the parties have agreed in writing to mediate under DRS. The written agreement can be achieved by a standard clause in an agreement of sale, an addendum to an agreement of sale, or through a separate written agreement. 2. Initiation of Mediation If a dispute exists, any party may start the mediation process by submitting a completed Request to Initiate Mediation DRS Transmittal Form (Transmittal Form) to the local Association of REALTORS® (hereafter "Administratof'). The Transmittal Form should be available through the Administrator's office. The initiating party should try to include the following informa- tion when sending the completed Transmittal Form to the Administrator: a. A copy of the written agreement to mediate if there is one , OR a request by the initiating party to have the Administrator contact the other parties to the dispute to invite them to join the mediation process. b. The names, addresses and telephone numbers of the parties involved in the dispute, including the name of every insurance company known to have received notice of the dispute or claim and the corresponding file or claim number. c. A brief statement of the facts of the dispute and the damages or relief sought. 3. Selection of Mediator Within five days of receiving the completed Transmittal Form, the Administrator will'seid each party to the dis- py q il,has ten days to review the list pute a copy of the Transmittal Form and a list of qualified mediators and their fee schedules. Each party the of mediators, cross off the name of any mediator to whom the party objects, and return the list tothe Administrator.' The Administrator will appoint the first available mediator who is acceptable to all parties involved. A mediator who has any financial or personal interest in the dispute or the results of the mediation camrot serve as mediator to that dispute, unless all parties are informed and give their written consent. 4. Mediation Fees Mediation fees will be divided equally among the parties and will be paid befnri the mediation conference. The parties will follow the payment terms contained in the mediators fee schedule +i. nSl -ri; r: r it 1'?F.t'?r 5. Time and Place of Mediation Conference Within ten days bf being appomted to the dispute, the mediator will contact the parties and set the date, time and place of the mediation conference. The mediator must give at least twenty days' advance notice to all parties. The mediation conference should not be more than siRvdays from the mediator's appointment to the dispute. ? _fr 6. Conduct of Mediation Conference. The parties attending the mediation conference will be expected to: a. Have the authority to enter into and sign a binding settlement to the dispute. b. 'ftoduce all information required for the mediator to understand the issues of the dispute. The information may include relevant written mete ia4 descriptions of witnesses and the content of their testimony. The mediator can require the parties to deliver written materials aiid mfortnation'before the date of the mediation conference. The mediator presiding over the conference: a. Will impartially conduct an orderly settlement negotiation. b. Will help the parties define the matters in dispute and reach a mutually agreeable solution. c. Will have no authority to render an opinion, to bind the parties to his or her decision, or to force the parties to reach a settlement. Formal rules of evidence will not apply to the mediation conference. 7. Representation by Counsel Any party who intends to be accompanied to the mediation conference by legal counsel will notify the medi- ator and the other parties of the intent at least ten days before the conference. g. Confidentiality No aspect of the mediation can be relied upon or introduced as evidence in any arbitration, judicial or other proceeding. This includes, but is not limited to, any opinions or suggestions made by any party regarding a possible settlement; any admissions made during the course of the mediation; any proposals or opinions expressed by the mediator; and any responses given by any party to opinions, suggestions, or proposals. No privilege will be affected by disclosures made in the course of the mediation. Transcripts or recordings of the mediation will not be allowed without the prior, written consent of all parties and the mediator. Records, reports, and other documents received or prepared by the mediator or Administrator cannot be compelled by an arbitration, judi- cial, or other proceeding, with the exception of an agreement that was reached in the course of mediation and signed by all the parties. Neither the mediator nor the Administrator can be compelled to testify in any proceeding regarding information given or representations made either in the course of the mediation or in any confidential communication. 9. Mediated Settlement When a dispute is resolved through mediation, the mediator will put the complete agreement in writing and all par- ties will sign the written agreement within ten days of the conclusion of the mediation conference. Every reasonable effort will be made to sign the written agreement at the end of the conference. 10. Judicial Proceedings and Immunity NEITHER THE ADMINISTRATOR, THE MEDIATOR, THE NATIONAL ASSOCIATION OF REALTORS®, THE PENNSYLVANIA ASSOCIATION OF REALTORSe, NOR ANY OF ITS MEMBER BOARDS, WILL BE DEEMED NECESSARY OR INDISPENSABLE PARTIES IN ANY JUDICIAL PROCEEDINGS RELATING TO MEDIATION UNDER THESE RULES AND PROCEDURES, NOR WILL ANY OF THEM SERVING UNDER THESE PROCEDURES BE LIABLE TO ANY PARTY FOR ANY ACT, ERROR OR OMISSION IN CONNECTION WITH ANY SERVICE OR THE OPERATION OF THE HOME SELLERS/HOME BUYERS DISPUTE RESOLUTION SYSTEM. The Uniform Condominium Act defines "condominium" as real estate, portions of which are designated for separate ownership and the remain- der of which is designated for common ownerships solely by the owners of those portions. Real estate is not a condominium unless the undivid- ed interests in the common elements are vested in the unit owners. The Uniform Planned Community Act defines "planned community" as real estate with respect to which a person, by virtue of ownership of an interest in any portion of the real estate, is or may become obligated by covenant, easement or agreement imposed on the owner's interest to pay any amount for real property taxes, insurance, maintenance, repair, improvement, management, administration or regulation of any part of the real estate other than the portion or interest owned solely by the person. The term excludes a cooperative and a condominium, but a cooperative or condominium may be part of a planned community. For the purposes of this definition, "ownership" includes holdmig a leasehold interest of more than 20 years, including renewal options, in real estate. The term includes non-residential campground communities. A condominium or planned community may be created only by recording a declaration signed by all persons who have an ownership interest in the real estate that will ultimately be transferred to the individual unit owners. A pe[sou, persons, or entity that records the declaration is com- monly referred as the declarant. The Acts require that a declarant that sells a unit in a condominium or planned community provide the purchas- er with a public offering statement PUBLIC OFFERING STATEMENT A public offering statement must be offered for the protection of purchasers. Public offering statements may vary depending upon the native of the condominium or planned community but will generally, contain a briefdescription of the condominium or planned community including types, numbers, and schedule of commencement/completion of buildings, units, and amenities; the number of additional units that may be included; a description of options reserved by the declarant to withdraw real estate and the effect that withdraw would have; a description of the significant features of the declaration, by-laws, rules and regulations; a balance sheet and projected budget; the initial or special fees that Buyer may owe at closing; the terns and significaut limitations of airy warranties provided by declarant; a notice of buyer's right to cancel following receipt of the Public Offering Statement, a description of how votes are allocated among unit owners, and other information as required by the Acts. If the con- dominium or planted community declaration provides that ownership or occupancy of the units may be owned in time-shares, additional infor- mation is required to be in the Public Offering Statement, including a summary of the special risks inherent in time-sharing. Exemptions from the Uniform Condominium Act and Uniform Planned Community Act When a Public Offering Statement is Not Required A declarant is not required to provide the buyer of a condominium or planned community unit with a public offering statement under the follow- ing circumstances. The transfer of the unit is a gratuitous transfer. The transfer of the unit is required by court order. The transfer of the result of a disposition by a government or a governmental agency. The transfer of the trait is a the result of a disposition by foreclosure or deed in lieu of foreclosure; The unit of the condominium is situated wholly outside of the Commonwealth and the contract was also executed outside of the Commonwealth. Electromagnetic Fields: Electromagnetic Fields (EMFs) occur around all electrical appliances and power lines. Conclusive evidence that EMFs pose h-alth risks does not exist at present, and Pennsylvania has no laws regarding this issue. Environmental Hazards: The U.S. Environmental Protection Agency has a list of hazardous substances, the use and disposal of which are restricted bylaw. Generally, if hazardous substances are found on a property, it is the property owner's responsibility to dispose of them properly. For more information and a list of hazardous substances, contact U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave., N.W., Washington, D.C. 20460, (202) 260-2090. Wetlands: Wetlands are protected by both the federal and state governments. Buyer may wish to have the Property inspected for wetlands by an environ- mental engineer to determine if permits for plans to build, improve, or develop the property would be affected or denied because of wetlands. Radon: Radon is a natural, radioactive gas that is produced in the ground by the normal decay of uranium and radium. Studies indicate that extended expo- sure to high levels of radon gas can increase the risk of lung cancer. Radon can find its way into any air-space, including basements and crawl spaces and can permeate a structure. The U.S. Environmental Protection Agency (EPA) advises corrective action if the annual average exposure to radon exceeds 0.02 working levels or 4 picocuries/liter. If a house has a radon problem, it usually can be cured by increased ventilation and/or by preventing radon entry. Any person who tests, mitigates, or safeguards a building for radon in Pennsylvania must be certified by the Department of Environmental Protection. Information about radon and about certified testing or mitigation firms is available through Department of Environmental Protection, Bureau of Radiation Protection. 13th Floor, Rachel Carson State Office Building, P.O. Box 8469, Harrisburg, PA 17105-8469, (800) 23RADON or (717) 783-3594. Mold/Fungi and Indoor Air Quality: Indoor mold contamination and the inhalation of bioaerosols (bacteria, mold spores, pollen, and viruses) have been associated with allergic responses including upper respiratory congestion, cough, mucous membrane irritation, fever, chills, muscle ache or other transient inflammation or allergy. Claims have been asserted that exposure to mold contamination and bioaerosols has led to serious infection, immunosuppression and illnesses of neuro or systemic toxicity. Sampling of indoor air quality and other methods exist to determine the presence and scope of any indoor con- tamination. Because individuals may be affected differently, or not affected at all, by mold contamination, the surest approach to determine the presence of contamination is to engage the services of a qualified professional to undertake an assessment and/or sampling. Assessments and samplings for the presence of mold contamination can be performed by qualified industrial hygienists, engineers, laboratories and home inspection companies that offer these services. Information pertaining to indoor air quality is available through the United States Environmental Protection Agency and may be obtained by contacting IAQ INFO, P.O. Box 37133, Washington, D.C. 20013-7133, 1-800-438-4318. SEWAGE NOTICES,--- NOTICES PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT NOTICE 1: THERE IS NO CURRENTLY EXISTING COMMUNITY SEWAGE SYS'T'EM AVAILABLE FOR THE SUBJECT PROPERTY. Section 7 of the Pennsylvania Sewage Facilities Act provides that,no person wiH iustall<:construct, request bid proposals for construction, alter, repair or occupy any building or structure for which an individual sewage system is to be installed, without first obtaining a permit. Buyer is advised by this notice that, before signing this. Agreement. Buyer should contact the local agency charged with administering the Act to determine the procedure and iequirements for obtaining a permit for an individual sewage system. The local agency charged with administering the Act will be c mu ticipality. where the Property is located or that municipality working cooperatively with others. NOTICE 2: THIS PROPERTY IS SERVICED BY AN INDIVIDUAL SEWAGE SYSTEM INSTALLED UNDER THE TEN-ACRE PERMIT EXEMPTIONN', PROVISIONS OF SECTION 7 OF THE PENNSYLVANIA SEWAGE FACILITIES ACT. (Section 7 provides that a permitmay not be required before installing, constructing, awarding a contract for construction, altering, repairing or connecting to an individual sewage system where a ten-acre parcel or lot is subdivided from a parent tract after January 10, 1987.) Buyer is advised that soil and site testing were not conducted and that, should the system malfunction, the owner of the Property or properties serviced by the system at the time of a malfunction may be held liable for any contamination, pollution, public health hazard or nuisance which occurs as a result. NOTICE 3: THIS PROPERTY IS SERVICED BY A HOLDING TANK (PERMANENT OR TEMPORARY) TO WHICH SEWAGE IS CONVEYED BY A WATER CARRYING SYSTEM AND WHICH IS DESIGNED AND CONSTRUCTED TO FACILITATE ULTIMATE DISPOSAL OF THE SEWAGE AT ANOTHER SITE. Pursuant to the Pennsylvania Sewage Facilities Act, Seller must provide a history of the annual cost of maintaining the tank from the date of its installation or December 14, 1995, whichever is later. NOTICE 4: AN INDIVIDUAL SEWAGE SYSTEM HAS BEEN INSTALLED AT AN ISOLATION DISTANCE FROM A WELL THAT IS LESS THAN THE DISTANCE SPECIFIED BY REGULATION. The regulations at 25 Pa. Code §73.13 pertaining to minimum hor- izontal isolation distances provide guidance. Subsection (b) of §73.13 states that the minimum horizontal isolation distance between an individual water supply or water supply system suction line and treatment tanks shall be 50 feet. Subsection (c) of §73.13 states that the horizontal isolation distance between the individual water supply or water supply system suction line and the perimeter of the absorption area shall be 100 feet. NOTICE 5: THIS LOT IS WITHIN AN AREA IN WHICH PERMIT LIMITATIONS ARE IN EFFECT AND IS SUBJECT TO THOSE LIM- ITATIONS. SEWAGE FACILITIES ARE NOT AVAILABLE FOR THIS LOT AND CONSTRUCTION OF A STRUCTURE TO BE SERVED BY SEWAGE FACILITIES MAY NOT BEGIN UNTIL THE MUNICIPALITY COMPLETES A MAJOR PLAN- NING REQUIREMENT PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT AND REGULATIONS PRO- MULGATED THEREUNDER NOTICE 6: A REQUIRED REVISION FOR NEW LAND DEVELOPMENT, OR AN EXCEPTION TO THE REQUIREMENT TO REVISE, OR A REQUIRED SUPPLEMENT HAS NOT BEEN APPROVED FOR THIS LOT. SEWAGE FACILITIES ARE NOT AVAIL- ABLE FOR THIS LOT AND SEWAGE FACILITIES WILL NOT BE AVAILABLE, NOR MAY CONSTRUCTION BEGIN UNTIL SEWAGE FACILITIES PLANNING HAS BEEN APPROVED PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT AND REGULATIONS PROMULGATED THEREUNDER. NOTICE TO BUYERS SEEKING MORTGAGE FINANCING ,., The appraised value of the Property is used in determining the maximum amount of the loan and may be different from the purchase price and/or mar- ket value. COMMUNICATIONS WITH BUYER AND/OR SELLER Wherever this Agreement contains a provision that requires or allows communication/delivery to a Buyer, said provision shall be satisfied by communi- cation/delivery to the Broker for Buyer, if any. If there is no Broker for Buyer, all such provisions may be satisfied only by communication/delivery being made directly to the Buyer, unless otherwise agreed to by the parties. Wherever this Agreement contains a provision that requires or allows communication/delivery to a Seller, said provision shall be satisfied by conununi- cation/delivery to the Broker for Seller, if any. If there is no Broker for Seller, all such provisions may be satisfied only by communication/delivery being made directly to the Seller, unless otherwise agreed to by the parties. NOTICES AND INFORMATION ON PROPERTY CONDITION INSPECTIONS U.S. Department of Housing and Urban Development FHA Loans: For Your Protection: Get a Home Inspection Why a Buyer Needs a Home Inspection A home inspection gives the buyer more detailed information about the overall condition of the home. prior to purchase. In a home inspection, a quali- fied inspector takes an in-depth, unbiased look at your potential new home to: evaluate the physical condition: structure, construction, and mechanical systems identify items that need to be repaired or replaced estimate the remaining useful life of the major systems, equipment, structure, and, finishes Appraisals are Different from Home Inspections An appraisal is different from a home inspection. Appraisals are for lenders; borne inspections are for buyers. An appraisal is required for three rea- sons: to estimate the market value of a house to make sure that the house meets FHA minimum property standards/requirements to make sure that the house is marketable FHA Does Nat Guarantee the Value or Condition of your Potential New Home If you find problems with your new home after closing, FHA can not give or lend you money for repairs, and FHA can not buy the (tome back from you. Radon Gas Testing The United States Environmental Protection Agency and the Surgeon General of the United States have recommended that all houses should be tested for radon. For more information on radon testing, call the National Radon Information Line at 1-800-SOS-Radon (1-800-644-6999). As with a home inspection, if you decide to test for radon, you may do so before signing your contract, or you may do so after signing the contract as long as your contract states the sale of the home depends on your satisfaction with the results of the radon test. Be an Informed Buyer It is your responsibility to be an informed buyer. Be sure that what you buy is satisfactory in every respect. You have the right to carefully examine your potential new home with a qualified home inspector. You may arrange to do so before signing your contract, or may do so after signing the con- tract as long as your contract states that the sale of the home depends on the inspection. PROPERTY INSPECTION NOTICES Property Inspection: Inspections of the Property can be performed by professional contractors or a home inspector, and may include inspections of: structural components; roof; exterior windows and exterior doors; exterior siding, fascia, gutters, and downspouts; appliances; electrical, plumbing, heat- ing, and cooling systems; water penetration; and any other items Buyer may select. Other inspections or certifications might include: Environmental Hazards (e.g., Mold, Indoor Air Quality, Asbestos, Underground Storage Tanks, etc.), Electromagnetic Fields, Wetlands Inspection, Flood Plain Verification, Property Boundary/Square Footage Verification, and any other items Buyer may select. Buyer is advised to investigate easements, deed and use restrictions (including any historic preservation restrictions or ordinances) that apply to the Property and to review local zoning ordinances. Flood Plains: If the Property is located in a flood plain, Buyer may be required to carry additional insurance. Property Boundary / Square Footage: Buyer is advised that Seller has not had the Property surveyed and that any fences, hedges, walls and other nat- ural or constructed barriers may or may not represent the true boundary lines of the Property. Buyer is also advised that any numerical representations of square footage of the structure(s) and/or lot size are approximations only and may be inaccurate. Buyer is advised to engage a professional surveyor or obtain an independent measurement of the structure(s) and/or lot size if the Buyer wishes to make this sale contingent on Buyer's approval of the Property's boundaries or square footage. Water Service: Buyer may elect to have the water service inspected by a professional water testing company. In addition, on-site water service sys- tems may have to meet certain quality and/or quantity requirements set by the municipality or the lender. Wood-Destroying Insect Infestation: Insects whose primary source of food is wood, such as termites, wood-boring beetles, carpenter ants, carpenter bees, and certain other insects, can cause damage to the wood structure of a residence. Termite and Pest Control companies are available to make inspec- tions to determine whether wood-destroying insects are present. Because of the way these 'insects function, damage to wood may be hidden. Careful selection should be made of skilled experts in the termite/pest control field to insure a proper determination of whether wood-boring insects or resultant damage is present. 6?ibJ -8 J ? ADAMS & BREAM BUILDERS, LLC NEW HOME SPECIFICATIONS FOR: MARIO AND TABITHA UMBELINA LOT #17 JEFFERSON COURT SECTION 1 PLANS & PERMITS 1. Provide final construction documents and specifications 2. Obtain building permit, along with water & sewer hook up fees SECTION 2 SITE CLEARING & EXCAVATING 1. Topsoil removed and stockpiled. 2. Excavating basement to bottom of footers 3. All frost wall footers to be trenched to proper bearing SECTION 3 FOOTERS & FOUNDATIONS 1. Concrete footers 8" X 20" minimum 2. Basement walls 9' high 10" thick poured concrete 3. Garage and porch walls 4' high 8" thick poured concrete 4. Basement walls waterproofed with clear seal 5. Footer drains around basement 4" pipe and crushed stone 6. Radon ventilation pipe in basement floor, thru roof 7. 8" crushed stone under basement floor SECTION 4 CONCRETE 1. Concrete basement floor minimum 4" thick 2. Concrete garage floor minimum 4" thick 3. Concrete porch floor minimum 4" thick 4. Concrete walk 3' wide from driveway to front porch minimum 4" thick 5. Trowel finish all slab surfaces, broom finish all ext. slabs SECTION 5 UNIT MASONRY 1. Stone as per plan on facade of house 2. Siding on remainder of house SECTION 6 STRUCTURAL STEEL 1. Steel beams as per plan 2. Adjustable steel columns welded to beam SECTION 7 ROUGH CARPENTRY 1. Framing lumber SPF #2 or better 2. Floor joists to be TGI floors system to 16" on center 3. Sub floor to be %" T/G Advantec flooring 4. Exterior walls studs to be 2" X 6" spaced at 16" center 5. Exterior wall sheathing to be 7/16" OSB 6. Roof trusses 24" on center 7. Roof sheathing to be 7/16" OSB SECTION 8 FINISHED CARPENTRY 1. Interior trims to be 2-1/4" poplar casing and 3 1/4" poplar base paint grade 2. Interior doors to be 6 panel pressed board paint grade 3. Oak railing at stairs stained, spindles to be Painted SECTION 9 CASEWORK 1. Kitchen cabinets-oak finish Yorktowne or equivalent 2. Imitation Corrianne tops 3. Factory made vanities SECTION 10 ROOFING 1. Roof covered with #30 felt paper 2. 30 year fiberglass laminated shingles (architectural style) 3. Cobra ridge vent or equivalent • 1 SECTION 11 INSULATION 1. Caulk and foam insulation package 2. R-19 fiberglass insulation in main house & garage walls 3. R-3 8 blown fiberglass insulation in ceiling in main house SECTION 12 GEOTHERMAL & EXTERIOR 1. Main house wrapped with TYPAR (or equal) house wrap 2. Aluminum fascia & spouting 3. Exterior vinyl soffits 4. Vinyl siding-double 4-1/2" Dutch Lap SECTION 13 WINDOWS & DOORS 1. Pella Pro-line tilt windows, low E glass with grills between glass And full screens 2. Steel front door 3. Insulated steel ext. door from garage to laundry area 4. 1-16' x 7' raised panel insulated metal garage door 5. 2-1/2 horsepower garage door openers SECTION 14 GYPSUM DRYWALL 1. %s' Drywall on interior house walls, painted one color, flat 2. 5/8" Fire proof drywall on garage house walls & ceiling of garage SECTION 15 FLOOR COVERING 1. Oak pre-finished flooring in foyer and dining rooms $8.00 sq. ft. 2. Vinyl in bathrooms, master bath 3. Oak treads (stain grade) on main staircase w/ paint grade risers 4. Carpet flooring ($24.00 per yard allowance) a Z ` ,1, SECTION 16 PAINTING 1. Interior paint to be Sherwin Williams Pro-Mar 200 or equiv. 2. Interior ceilings & walls to be two coats, one color, latex flat 3. Interior painted wood trims & doors 2 coats, 1 color, latex semi- Gloss finish 4. Exterior trim & steel doors two coats, 1 color, ext. latex semi-gloss SECTION 17 MECHANICAL & I VAC 1. Gas furnace, high efficiency 2. Central air conditioning sized to house (Carrier 10 Seer) SECTION 18 PLUMBING 1. All copper H2O supply 2. All PVC drainage pipe 3. American standard water saver commodes (white)or equal 4. Bathroom fixtures to be Moens single lever controls in upstairs Bathrooms 5. One-piece cultured marble vanity tops 6. Fiberglass tub and shower with rod in main bath (white) 7. 50 gallon gas hot water heater 8. Water pressure booster pump (if needed) SECTION 19 BATH ACCESSORIES & CLOSET SHELVING 1. Chrome & polished brass towel rods & paper towel holder in all bathrooms 2. '/a" thick minors above bathroom vanities with light above 3. Ventilated closed shelving, 12" single shelves SECTION 20 ELECTRIC 1. 200 AMP electrical service 2. Washer & dryer outlets provided 3. 6 telephone jacks 4. 6 TV jacks 5. Smoke detectors to code 6. Dining room and all bedrooms pre-wired for ceiling fans 1 7. Recessed light fixtures in kitchen as per plan 8. Fan/light combinations in bathrooms (per code) SECTION 21 DRIVEWAY 1. 8" Minimum sub base slate/ black top finish SECTION 22 LANDSCAPING 1. Top soil spread 2. Starter lawn seeded, strawed & fertilized (Agway blend or equal) SECTION 23 ROCK 1. Any blasting or busting of rock will be extra and charged on a time and material basis. ALLOWANCES 1. Light fixtures 2. Cultured marble tops (installed) 3. Floor coverings-carpet & vinyl (installed) 4. Hardwood flooring foyer, dining room 5. Kitchen cabinets & tops installed 6. Appliance allowance 7. Excavation allowance $ 750.00 400.00 24.00 per yd 8.00 sq ft $9,500.00 $2,200.00 $12,000.00 .N PROPOSAL JACK ADAMS BUILDERS, LLC 301 E SPRINGVILLE ROAD BOILING SPRINGS, PA 17007 717-258-5670 SUBMITTED TO: MARIO AND TABITHA UM 3ELINA 603 HERITAGE CT. MECHANICSBURG, PA 17055 SPECIFICATIONS: DATE: AUGUST 23, 2005 JOB: LTMBELINA LOT #17 JEFFERSON COURT HEREBY PROPOSE TO CONSTRUCT HOUSE ON LOT #17 IN JEFFERSON COURT AS PER PLANS AND DISCUSSIONS ACCORDING TO ATTACHED SPECIFICATIONS. ANY EXTRAS WILL BE DONE ON A TIME AND MATERIAL BASIS ABOVE AND BEYOND QUOTED PRICE. WE HEREBY PROPOSE TO FURNISH MATERIAL AND LABOR IN ACCORDANCE WITH THE ABOVE REFERENCED SPECIFICATIONS FOR THE SUM OF: THREE HUNDRED SEVEN THOUSAND DOLLARS($307,000.00) PAYMENT TERMS ARE AS FOLLOWS: MINIMUM 5 DRAW SCHEDULE AUTHORIZED SIGNATURE_" NOTE: THIS PROPOSAL WILL BE CONSIDERED NULL AND VOID IF NOT ACCEPTED WITHIN A 30-DAY PERIOD. I) tom, Y? CONTINUATION OF PROPOSAL: ALL MATERIAL IS GUARANTEED AS SPECIFIED. ALL WORK WILL BE COMPLETED IN A WORKMANLIKE MANNER ACCORDING TO STANDARD PRACTICES. ANY ALTERATIONS OR DEVIATION FROM THE ABOVE SPECIFICATIONS INVOLVNG EXTRA COSTS WILL BE CONSIDERED EXTRA WORK AND WILL BE CHARGED OVER AND ABOVE THIS ESTIMATE. OWNER HAS THE RESPONSIBILITY TO CARRY THE NECESSARY AND REQUIRED PROPERTY INSURANCE. THE CONTRACTOR SHALL CARRY GENERAL LIABILITY INSURANCE. AS THE CUSTOMER AND BY EXECUTING THIS DOCUMENT WITH AND AUTHORIZED SIGNATURE, I DO HEREBY ENTER INTO A BINDING CONTRACT. DATE 7, CUSTO UPON ACCEPTANCE OF THIS PROPOSAL, PLEASE SIGN BOTH COPIES. RETAIN ONE COPY FOR YOUR RECORDS AND RETURN THE OTHER COPY FOR OUR FILES. fN k; ?-? cnook ?C a? 1'5 .11? V? rz? *:k Uj 'D b IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION -LAW PRAECIPE TO ENTER APPEARANCE Please enter the appearance of SALZMANN HUGHES, P.C. as counsel of record for the Defendant ADAMS AND BREAM BUILDERS, LLC in the above-referenced matter. By: Dated: 7/2/07 354 Alexander Spring Road Suite 1 Carlisle, PA 17013 717-249-6333 Attorney for Defendant SALZMANN HUGHES, P.C. w CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe to Enter Appearance upon all parties to this action, by mailing a copy thereof on this 2nd day of July, 2007, to: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 SALZMANN HUGHES, P.C. By E. Ralph Godfrey, Es e C:n C) i1--- y 3' {? _ , . dry • J w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION -LAW NOTICE TO PLEAD TO: Mario Umbelina and Tabatha Santore-Umbelina c/o Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from service hereof or a default judgment may be entered against you. SALZMANN HUGHES, P.C. Bif / / E. 4;ra-lph Godfrey, Esquirr Attorney I.D. No. 77052 354 Alexander Spring Road Suite 1 Carlisle, PA 17013 (717) 249-6333 Dated: 7/18/07 Attorneys for Defendant Adams and Bream Builders, LLC 11 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION -LAW ORDER AND NOW, this day of 2007, it is hereby ORDERED and DECREED that the Preliminary Objections of Defendant Adams and Bream Builders, LLC are GRANTED. Counts III, V, VI, and VII are DISMISSED. Plaintiffs' claims for punitive and treble damages are DISMISSED. Plaintiffs claims for attorney's fees in Counts II, IV, V and VI are DISMISSED. By the Court: J. 12 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and NO. 07-3731 wife, Plaintiffs CIVIL ACTION -LAW VS. ADAMS AND BREAM BUILDERS, LLC Defendant DEFENDANT ADAMS & BREAM BUILDERS, LLC'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW COMES, Defendant, Adams and Bream Builders, LLC, by and through its counsel, Salzmann Hughes, P.C., and files the within Preliminary Objections, as follows: 1. DEMURRER - LEGAL INSUFFICIENCY OF COUNT III - NEGLIGENT MISREPRESENTATION 1. Count III of the Complaint sets forth a claim for Negligent Misrepresentation. 2. The allegations in the Complaint are legally insufficient to sustain a claim for negligent misrepresentation. 3. To support a claim for negligent misrepresentation, a plaintiff must show a misrepresentation of material fact; made under circumstances in which the misrepresenter ought to have known of the falsity; and intent by the misrepresenter to induce another to act upon the misrepresentation, and; injury to the plaintiff as a result of its justifiable reliance on the misrepresentation. See e.g. Bilt-Rite Contractors. Inc. v. The Architectural Studio, 581 Pa. 454, 466 (2005). 1 4. The Complaint does not allege facts supporting the required elements for negligent misrepresentation. Because Plaintiffs have failed to allege the required facts supporting each element necessary to establish a claim for negligent misrepresentation, Count III of the Complaint is legally insufficient and must be dismissed. WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to strike Count III of Plaintiffs' Complaint, or, in the alternative, to order the Plaintiffs to file a more specific Complaint. II. DEMURRER - LEGAL INSUFFICIENCY OF COUNT V - BREACH OF EXPRESS AND IMPLIED WARRANTIES 6. The averments of paragraphs 1-5 are incorporated herein by reference. 7. Count V of the Complaint sets forth a claim for breach of expressed and implied warranties. 8. The allegations in the Complaint are legally insufficient to sustain a claim for breach of either expressed or implied warranties. 9. The Complaint does not allege the required facts necessary to establish each element for a claim of breach of expressed or implied warranties. 10. Because Plaintiffs have not alleged sufficient facts to support each element to sustain a claim for breach of either expressed or implied warranties, Count V of the Complaint is legally insufficient and must be dismissed. WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to strike Count V of Plaintiffs' Complaint, or, in the alternative, to order the Plaintiffs to file a more specific Complaint. 2 III. DEMURRER - LEGAL INSUFFICIENCY OF COUNT VI - FRAUD 11. The averments of paragraphs 1-10 are incorporated herein by reference. 12. Count VI of the Complaint attempts to set forth a claim for fraud against Defendant. 13. The allegations contained in the Complaint are legally insufficient to sustain a claim for fraud. 14. The six fundamental elements to establish fraud are: (1) a representation; (2) that is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation by the plaintiff; and (6) resulting injury proximately caused by the reliance. See Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994) (citing Restatement (Second) of Torts, § 525). 15. Other than bare conclusory allegations, the Complaint fails to allege any facts demonstrating that Defendant knowingly made false statements with the intent of having Plaintiffs rely on them. 16. Because Plaintiffs have not alleged facts supporting each element to sustain a claim for fraud, the Complaint is legally insufficient and must be dismissed. WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to strike Count VI of Plaintiffs' Complaint, or, in the alternative, to order the Plaintiffs to file a more Complaint. IV. DEMURRER - LEGAL INSUFFICIENCY OF COUNT VII - PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 17. The averments of paragraphs 1-16 are incorporated herein by reference. 18. Count VII of Plaintiffs' Complaint entitled "Violation of the Unfair Trade Practices and Consumer Protection Law" fails to state a valid cause of action. 19. In Count VII, Plaintiffs aver that Defendant violated the Unfair Trade Practices and Consumer Protection Law. 20. Other than bare conclusory allegations, the Complaint fails to allege any facts sufficient to sustain a cause of action for violation of Unfair Trade Practices and Consumer Protection Law. 21. Furthermore, the Unfair Trade Practices and Consumer Protection Law provides relief for a "misfeasance." It does not provide a cause of action for a "nonfeasance." Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988); Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986); Lombardo v. State Farm Mutual Automobile Insurance Compan y, 800 F.Supp. 208 (E.D. Pa. 1992); Wentzel v. Old Guard Insurance Compan y, 114 Dauph. 139 (1994). 22. Because Plaintiffs have not alleged facts supporting each element of a claim for Unfair Trade Practices and Consumer Protection Law, the Complaint is legally insufficient and must be dismissed. WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to strike Count VII of Plaintiffs' Complaint, or, in the alternative, to order the Plaintiffs to file a more specific Complaint. V. DEMURRER - LEGAL INSUFFICIENCY - PUNITIVE DAMAGES - COUNT VI & VII 23. The averments of paragraphs 1- 22 are incorporated herein by reference. 24. The ad damnum clause in Counts VI and VII seek an award of punitive damages. 4 25. To support a claim for punitive damages, Plaintiffs must allege facts demonstrating that Defendant's conduct was reckless, outrageous or malicious. 26. Punitive damages are appropriate to punish and deter only extreme behavior, and in those rare instances in which they are justified, they are subject to strict judicial controls. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1096 (1985). 27. Furthermore, punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. Id. at 1097. 28. There are no factual allegations in Plaintiffs' Complaint which illustrate "recklessness", "outrageous conduct" or acts done with an "evil motive." 29. Because Plaintiffs have not alleged facts supporting their claim for punitive damages, the claim for punitive damages in Counts VI and VII are legally insufficient and must be dismissed. 30. Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. does not permit the award of punitive damages. 31. Under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, punitive damages are not permitted. Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 52 UCC Rep.Serv.2d 909, Prod.Liab.Rep. (CCH) P 16, 882 (2004) 32. Since Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P. S. §201-1 et seq. does not permit the award of punitive damages, Plaintiffs' claim for punitive damages in the ad damnum clause of Count VII must be dismissed. WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to strike the claim for punitive damages. 5 VI. DEMURRER - LEGAL INSUFFICIENCY - TREBLE DAMAGES - COUNT VII 33. The averments of paragraphs 1-32 are incorporated herein by reference. 34. Plaintiffs alleges treble damages for violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P. S. §201-1 et seq. 35. When deciding whether to award treble damages under Pennsylvania's Unfair Trade Practices and Consumer Protection law, courts are to be guided by law governing punitive damages. In re Patterson, 263 B.R. 82. (2001). 36. There are no factual allegations in Plaintiffs' Complaint which illustrate "recklessness", "outrageous conduct" or acts done with an "evil motive." 37. Because Plaintiffs have not alleged facts supporting their claim for treble damages, the claim for treble damages in Count VII is legally insufficient and must be dismissed. WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to strike the claim for treble damages in Count VII of Plaintiffs' Complaint. VII. INCLUSION OF IMPERTINENT MATTER PURSUANT TO PA. R. CIV. P. 1028(a)(2). 38. The averments of paragraphs 1- 37 are incorporated herein by reference. 39. The ad damnum clauses in Counts II, IV, V, and VI seek an award of attorneys' fees. 40. As a matter of law, a litigant may not recover attorney's fees in the absence of an express authorization by statute, agreement of the parties, or other exception to this rule. See J.C. Snavely & Sons, Inc. v. Web M&E, Inc., 406 Pa. Super 271, 594 A.2d 333 (1991) (citations omitted). 6 41. The Complaint does not allege that the purported agreement between Plaintiffs and Defendant allows for the recovery of attorney's fees upon breach of that agreement, or under any other circumstances. 42. The Complaint does not allege the existence of a statute or general exception to the general prohibition against recovery of attorney's fees in Counts II, IV, V and/or VI. 43. The appropriate method to challenge an erroneous prayer for damages is by filing preliminary objection "in the nature of a motion to strike off impertinent matter." Hudock v. Donegal Mut. Ins. Co., 438 Pa. 272, 278 n.2, 264 A.2d 668, 671, n.2 (1970). 44. Impertinent matter generally is that which is wholly irrelevant to an action and therefore cannot have any influence on the decision of a case. See Jeffries v. Hoffinan, 417 Pa. 1, 3, 207 A.2d 774, 775 (1965); Twp. Of Springdale v. Kane, 16 Pa. Commw. 171, 173-74, 328 A.2d 904, 905 (1974). 45. An "allegation of damages or a prayer for damages which are not legally recoverable in the cause of action pleaded is impertinent matter in the sense that it is irrelevant to the cause of action." Hudock, 438 Pa. At 278, n.2, 264 A.2d at 671, n.2. 46. Because the Complaint does not allege a contractual provision or a statute permitting the recovery of attorney's fees in Counts II, IV, V and/or VI, the request for attorney's fees in the these ad damnum clauses of these Counts must be stricken as impertinent. WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to strike the claim for attorney's fees in Counts II, IV, V, and VI. VIII. MOTION FOR MORE SPECIFIC COMPLAINT PURSUANT TO Pa. R. Civ. P. 1019. 47. The averments of paragraphs 1- 46 are incorporated herein by reference. 48. Pennsylvania Rule of Civil Procedure 1019 provides as follows: 7 (a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. (b) Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of the mind may be averred generally. 49. The Pennsylvania Rules of Civil Procedure require Plaintiffs to plead their cause of action with sufficient factual specificity so that Defendant's right and ability to answer and defend will not be duly impaired by Plaintiffs' vagueness in stating the grounds in their suit. 50. Plaintiffs' allegations do not adequately allege the facts such that the Defendant can respond to the Complaint and defend the action. 51. The averments contained in Plaintiffs' Complaint fail to conform to the law and rules of this Court, are vague conclusions and do not state material facts. 52. Counts II, III, IV, V, VI, and VII of Plaintiff s Complaint contain no facts whatsoever to support their conclusory allegations. 53. Furthermore, Counts III, VI, and VII fail to set forth facts with particularity to establish fraud or mistake. 54. The vagueness of the averments will continue to cause unfair prejudice to Defendant. 55. In the interest of fairness and justices, Plaintiffs should be required to state the material facts supporting the conclusions raised in Counts II, III, IV, V, VI and VIII. 8 WHEREFORE, Defendant, Adams and Bream Builders, LLC, respectfully requests this Honorable Court to order the Plaintiffs to file a more specific Complaint. SALZMANN HUGHES, P.C. B alph odfrey, Esq Attorney I.D. No. 770 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 F Attorneys for Defendant Adams and Bream Builders, Dated: 7 / LLC 9 CERTIFICATE OF SERVICE AND NOW, this 18th day of July, 2007, I, E. Ralph Godfrey, Esquire, of Salzmann Hughes, P.C., attorneys for Defendant, hereby certify that I served a copy of the within Preliminary Objections this day by depositing the same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed to: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 Ralph odfrey, Esquire 10 Cx: '` Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street Harrisburg, PA 17110-0950 (717) 232-5000 rlfinck@mette.com MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. ADAMS AND BREAM BUILDERS, LLC, Defendant NO. 07-3731 CIVIL ACTION - LAW PLAINTIFFS' ANSWER TO PRELIMINARY OBJECTIONS OF DEFENDANT The Plaintiffs, Mario Umbelina and Tabatha Santore-Umbelina ("Plaintiffs"), file this Answer to the Preliminary Objections of the Defendant, Adams and Bream Builders, LLC ("Defendant"), as follows: RESPONSE TO PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT III 1. Admitted. 2. Denied. The averments of paragraph 2 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 3. Denied. The averments of paragraph 3 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 4. Denied. It is specifically denied that the Complaint does not allege facts supporting required elements for a negligent misrepresentation claim. To the contrary, the Complaint specifically states that Defendant's agent assured the Plaintiffs that the grading of the lot would be the same as other, relatively flat lots. (Complaint at ¶25 and 26). During the course of the negotiations, the Defendant's agent continually reassured the Plaintiffs that the slope of Lot 17 would accommodate the Plaintiffs' demands. (Complaint at ¶30, 34, 39, 46, 48, and 49). The Complaint adequately alleges that the Defendant knew or should have known of the falsity of his representations. The Complaint adequately alleges that the Defendant, by making these misrepresentations, intended to induce the Plaintiffs into entering into a contract. Finally, the Complaint adequately alleges that the Plaintiffs were damaged by the Defendant's misrepresentations. 5. Denied. The averments of paragraph 5 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objection to Count III of the Plaintiffs' Complaint be denied and Defendant be ordered to file an answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. 2 RESPONSE TO PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT V 6. The averments of paragraphs 1 through 5 above are incorporated herein by reference as if fully set forth. 7. Admitted. Denied. The averments of paragraph 8 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 9. Denied. The averments of paragraph 9 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Complaint does not allege the required facts necessary to establish each element of a claim for breach of expressed or implied warranties. By way of further answer, an individual called upon to construct a building, warrants that the building will be sufficient for the purposes for which it is intended. See Bloomsburg Mills, Inc. v. Sordoni Construction Co., 164 A.2d 201, 203 (Pa. 1960). The contract sufficiently alleges that the Defendant warranted that the Plaintiffs' house would accommodate the Plaintiffs' limited mobility. 10. Denied. The averments of paragraph 10 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objection to Count V of the Plaintiffs' Complaint be denied and Defendant be ordered to file an answer to 3 the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. RESPONSE TO PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT VI 11. The averments of paragraphs 1 through 10 above are incorporated herein by reference as if fully set forth. 12. Admitted. 13. Denied. The averments of paragraph 13 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 14. Denied. The averments of paragraph 14 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, the Complaint sufficiently alleges that the Defendant's agents made representations to the Plaintiffs (repeatedly) that the slope of the driveway would accommodate the Plaintiffs' needs. Moreover, the Defendant later falsely represented that it could not grade the slope of the driveway as agreed due to Township requirements (Complaint at ¶53). Additionally, the Complaint alleges that Adams informed the Township officers that the slope of the property was a demand of the Plaintiffs. (Complaint at ¶65). The Complaint adequately alleges that the fraudulent misrepresentations of the Defendant were material to the transaction at hand, were made falsely and were made with knowledge of their falsity. It can reasonably be inferred that the Defendant intended to mislead the Plaintiffs into relying on these representations so that Plaintiffs would hire the Defendant to construct the house. It is further alleged that the Plaintiffs 4 justifiably relied on the representations. The Complaint adequately alleges that the Plaintiffs were proximately injured by their reliance on the Defendant's misrepresentation. 15. Denied. The averments of paragraph 15 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 16. Denied. The averments of paragraph 16 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objection to Count VI of the Plaintiffs' Complaint be denied and Defendant be ordered to file an answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. RESPONSE TO PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT VII 17. The averments of paragraphs 1 through 16 above are incorporated herein by reference as if fully set forth. 18. Denied. The averments of paragraph 18 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 19. Admitted. 20. Denied. The averments of paragraph 20 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 5 21. Denied. The averments of paragraph 21 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 22. Denied. The averments of paragraph 22 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objection to Count VII of the Plaintiffs' Complaint be denied and Defendant be ordered to file an answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. RESPONSE TO PRELIMINARY OBJECTION ASSERTING LEGAL INSUFFICIENCY/DEMURRER TO COUNTS VI AND VII 23. The averments of paragraphs 1 through 22 above are incorporated herein by reference as if fully set forth. 24. Admitted. 25. Denied. The averments of paragraph 25 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 26. Denied. The averments of paragraph 26 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 27. Denied. The averments of paragraph 27 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 6 28. Denied. The averments of paragraph 28 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 29. Denied. The averments of paragraph 29 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 30. Denied. The averments of paragraph 30 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 31. Denied. The averments of paragraph 31 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 32. Denied. The averments of paragraph 32 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objection to Counts VI and VII of the Plaintiffs' Complaint be denied and Defendant be ordered to file an answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. RESPONSE TO PRELIMINARY OBJECTION ASSERTING LEGAL INSUFFICIENCY/DEMURRER TO COUNT VII 33. The averments of paragraphs 1 through 32 above are incorporated herein by reference as if fully set forth. 34. Admitted. 7 35. Denied. The averments of paragraph 35 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 36. Denied. The averments of paragraph 36 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 37. Denied. The averments of paragraph 37 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objection to Counts VII of the Plaintiffs' Complaint be denied and Defendant be ordered to file an answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. RESPONSE TO PRELIMINARY OBJECTION CLAIMING INCLUSION OF IMPERTINENT MATTER 38. The averments of paragraphs 1 through 37 above are incorporated herein by reference as if fully set forth. 39. Admitted. 40. Denied. The averments of paragraph 40 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 41. Denied. The averments of paragraph 41 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 42. Denied. The averments of paragraph 42 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 43. Denied. The averments of paragraph 43 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 44. Denied. The averments of paragraph 44 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 45. Denied. The averments of paragraph 45 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 46. Denied. The averments of paragraph 46 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's Preliminary Objection to Counts II, IV, V, VI and VII of the Plaintiffs' Complaint be denied and Defendant be ordered to file an answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. RESPONSE TO MOTION FOR MORE SPECIFIC COMPLAINT 47. The averments of paragraphs 1 through 46 above are incorporated herein by reference as if fully set forth. 48. Admitted. It is admitted that the Defendant has accurately quoted subsections (a) and (b) of Rule 1019 of the Pennsylvania Rules of Civil Procedure. 9 49. Denied. The averments of paragraph 49 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 50. Denied. The averments of paragraph 50 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 51. Denied. The averments of paragraph 51 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 52. Denied. The averments of paragraph 52 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 53. Denied. The averments of paragraph 53 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 54. Denied. The averments of paragraph 54 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 55. Denied. The averments of paragraph 55 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs respectfully request that the Defendant's "Motion for More Specific Complaint" be denied and Defendant be ordered to file an answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs respectfully request that the Court grant them leave to file an Amended Complaint. 10 Respectfully submitted, METTE, EVANS & WOODSIDE By: (Z"L 'A. 4"-: C Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Plaintiffs Date: August 1, 2007 11 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: E. Ralph Godfrey, Esquire SALZMAN HUGHES, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 Respectfully submitted, METTE, EVANS & WOODSIDE By: a _ 4? Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Date: August 1, 2007 Attorneys for Plaintiffs 475969v1 12 C3 ? Q C ? m < ?i :. - ? , ?. {,^ 1 -- j ? 1?`k? 'TS _="I'r * 'll wry. ?: ? ? ? .? ? "'1 -< C C.,? =G SHERIFF'S RETURN - REGULAR CASE NO: 2007-03731 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UMBELINA MARIO ET AL VS ADAMS AND BREAM BUILDERS LLC RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ADAMS AND BREAM BUILDERS LLC the DEFENDANT , at 0925:00 HOURS, on the 28th day of June , 2007 at JOB SITE AT 400 BLOCK CARLISLE, PA 17013 JACK ADAMS, OWNER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 4.80 Postage .41 Surcharge 10.00 .00 1'04/01 9, v/ 33.21 Sworn and Subscibed to before me this day of , WOODLAWN LANE So Answers: R. Thomas Kline 06/28/2007 METTE EVANS WOO By: Deputy Sheriff A.D. r- `* PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court, August 15, 2007. CAPTION OF CASE (entire caption must be stated in full) MARIO UMBELINA, et al, Plaintiff vs. ADAMS & BREAM BUILDERS, LLC, Defendant No. 07-3731 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs' Complaint. 2. Identify counsel who will argue case: (a) Plaintiffs: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (b) Defendants: E. Ralph Godfrey, Esquire 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 3, 2007 Signature Ronald L. Finck, Esquire Print Your Name Attorney for Plaintiffs DATE: August 17, 2007 r `. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage prepaid, addressed as follows: E. Ralph Godfrey, Esquire 354 Alexander Spring Road, Suite 1 Carlisle, Pennsylvania 17013 METTE, EVANS & WOODSIDE BY: (20VAa :C Ronald L. Finck, Esquire Supreme Court I. D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff DATED: August 17, 2007 476883v1 r-,> 0 17 c. _ MARIO UMBELINA and TABATHA SANTORE- UMBELINA, husband and wife, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-3731 CIVIL ADAMS AND BREAM BUILDERS, LLC, Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE HESS OLER AND EBERT, J.J. ORDER AND NOW, this f? ' day of November, 2007, the preliminary objection of the defendant to the claim for punitive damages in Count VII of the complaint is GRANTED and said claim is DISMISSED. The defendant's preliminary objection to plaintiffs' claim for attorney's fees in Counts II, IV, V and VI of the complaint is likewise GRANTED. The remaining preliminary objections of the defendant are DENIED. BY THE COURT, Aonald L. Finck, Esquire Fort e Plaintiffs Ralph Godfrey, Esquire , For the Defendant : rlm fi i '- ? .... . rt,1 i ^ 1 + ( • f fi, ?titM t id :J ?3 ?jr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA ; SANTORE-UMBELINA, husband and ; wife, Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION -LAW NOTICE TO PLEAD TO: Mario Umbelina and Tabatha Santore-Umbelina c/o Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. By F?h od EsquireD. No. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 Dated: iz? 0 Attorney for Defendant Adams and Bream Builders, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION -LAW DEFENDANT ADAMS AND BREAM BUILDERS, LLC'S ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT Defendant, Adams and Bream Builders, LLC (hereinafter "Defendant"), by and through its attorneys, Salzmann Hughes, P.C., answers the corresponding numbered paragraphs of Plaintiffs' Complaint as follows: 1. Admitted. 2. Admitted. 3. Denied. Paragraph 3 is denied as a conclusion of law that does not require a response. To the extent that an answer may be required, Defendant does not have a business address in Cumberland County, Pennsylvania. 4. Denied. Paragraph 4 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, the real property is located at 415 Woodlawn Lane, Carlisle, Cumberland County, Pennsylvania. 5. Denied. It is denied that Defendant was involved in any events or transactions with Plaintiffs or had any events or transactions within the County of Cumberland. Furthermore, it is 2 denied that Plaintiffs' have a cause of action against Defendant. Strict proof is demanded at the time of trial. 6. Denied. Paragraph 6 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, Defendant no longer conducts regular business in Cumberland County. Strict proof is demanded at the time of trial. 7. Admitted in part; denied in part. It is admitted that Plaintiffs retained the services of Robert J. Purvis of Ebener & Associates. As for the remaining allegations, Defendant is without sufficient information or knowledge to either admit or deny them and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 8. Denied. Plaintiff only told Jack Adams (hereinafter "Adams") that she had knee surgery. As for the remaining allegations, after reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and they are therefore denied. Strict proof thereof is demanded at time of trial. 9. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and they are therefore denied. Strict proof thereof is demanded at time of trial. 10. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 11. Admitted but with qualifications. This paragraph is only admitted to the extent that it accurate reflects the Final Subdivision Plan of Jefferson Court, which is a written document that speaks for itself, recorded in the Office of the Recorder of Deeds in and for 3 Cumberland County, Pennsylvania in Plan Book 87, page 146. 12. Denied. Purvis did not contact Defendant to discuss the Property or to negotiate an agreement for the sale of new construction. It is denied that Defendant or any of its agents attended a meeting at the end of May of 2005. It is further denied that Adams was an agent of Defendant during this alleged meeting. Strict proof is demanded at the time of trial. 13. Denied. It is denied that Defendant or any of its agents met with Plaintiffs and/or Robert J. Purvis (hereinafter "Purvis") to discuss the Property, to negotiate an agreement for the sale of new construction, or to discuss Plaintiffs' alleged disability. Furthermore, it is denied that Adams was an agent of Defendant in this transaction. It is further denied that Purvis explained Plaintiff Tabatha's disabilities to Adams or informed Adams that Plaintiff Tabatha was handicapped and required a house with few steps or needed a property of relatively flat terrain. Strict proof is demanded at the time of trial. 14. Admitted in part; denied in part. It is admitted that Plaintiffs initially requested a ranch style home from Adams. As for the remaining allegation that "Adams asked the Plaintiffs whether they needed ramps," it is denied. Strict proof is demanded at the time of trial. 15. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 16. Admitted. 17. Admitted. 18. Admitted in part; denied in part. It is admitted that Adams, Purvis and Linda Shover (hereinafter "Shover") attended a meeting. It is denied that Adams and/or Shover were 4 agents of Defendant in this transaction. As for the exact date of the meeting, after reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 19. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and they are therefore denied. Strict proof thereof is demanded at time of trial. 20. Admitted in part; denied in part. It is admitted that Plaintiffs presented Adams with a two-story house plan they had selected. As for the exact date, after reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 21. Admitted in part; denied in part. It is admitted that Adams told Plaintiffs that Lot 17 would accommodate the house plan the Plaintiffs had selected. It is denied that Adams stated that Defendant would be able to build the house on Lot 17 within the applicable set back limits because Defendant was not the contractor hired for this project. Furthermore, Adams was not an agent of Defendant for this project. Strict proof is demanded at the time of trial. 22. Denied. To the contrary, Plaintiffs repeatedly indicated that they liked the Lot and that they liked the view. Furthermore, Donald Group, Sr. had offered them different lots, which they declined to accept. All allegations on this paragraph are denied. Strict proof is demanded at the time of trial. 5 23. Denied. To the contrary, Plaintiffs repeatedly indicated that they liked the Lot and that they liked the view. Furthermore, Donald Group, Sr. had offered them different lots, which they declined to accept. All allegations of this Paragraph are denied. Strict proof is demanded at the time of trial. 24. Denied. Plaintiffs never informed Adams that "it was essential that the lot be flat enough to enable Tabatha to care for it in the likely event Mario would be deployed to Iraq for military duty." Strict proof is demanded at the time of trial. 25. Admitted in part; denied in part. It is admitted only that Adams stated that the grading for Plaintiffs' Lot would be flat to the porch and than steeper to the road than the lot across the street and that it had to be graded in accordance with the Subdivision Plan approved by South Middleton Township. Adams also stated that the driveway would be steeper than the one across the street because of the natural flow of the land. All remaining allegations of this Paragraph are denied. Strict proof is demanded at the time of trial. 26. Denied. Paragraph 26 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, Lot 15 is a physical, tangible item that speaks for itself. Any averments of its content asserted by Plaintiffs are of their own interpretation and observation of Lot 15. Strict proof is demanded at the time of trial. 27. Admitted in part; denied in part. It is admitted that Plaintiffs presented Adams with a two-story house plan they had selected. It is denied that Plaintiff present a two-story house plan or requested a price quotation from Defendant on July 14, 2005. It is further denied that Adams was an agent for Defendant during this transaction. Strict proof is demanded at the time of trial. 6 28. Denied. Plaintiffs and Defendant never negotiated a price for the Property or for the construction of the Plaintiffs' house. Strict proof is demanded at the time of trial. 29. Admitted in part; denied in part. It is admitted that Adams, Purvis and Plaintiffs had a meeting where Adams presented Plaintiffs with an offer of $307,000.00 to construct the house. It is denied that this offer was from Defendant. Furthermore, the Contract attached as Exhibit "A" and the Proposal attached as Exhibit "B" reflect contract dates of October 25, 2005 and September 15, 2005 respectively. All remaining allegations are denied. Strict proof is demanded at the time of trial. 30. Denied. It is denied that Adams was an agent of Defendant in this transaction. Furthermore, it is denied that Defendant or any of its agents made any reassurance to Plaintiffs that Defendant would make sure that the house and the slope of Lot 17 would accommodate the Plaintiffs' demands; specifically Tabatha's conditions. Strict proof is demanded at the time of trial. 31. Denied. It is denied that Defendant made assurances to Plaintiffs. It is further denied that Defendant entered into a Standard Agreement for the Sale of New Construction ("Agreement") with Plaintiffs for the purchase and/or sale of Lot 17 in the Jefferson Court Subdivision. Furthermore, the Agreement is a written document that speaks for itself Any averments of its content asserted by Plaintiffs are of their own interpretation of the document. Strict proof is demanded at the time of trial 32. Denied. The Agreement and Specifications are written documents that speak for themselves. Any averments of their content asserted by Plaintiffs are of their own interpretation of the documents. Strict proof is demanded at the time of trial. 7 33. Denied. It is denied that Defendant and Plaintiffs had an Agreement of Sale for Lot 17. It is further denied that Defendant sold Lot 17 to Plaintiffs on November 14, 2005 in the office of Saidis, Flower & Lindsay. Strict proof is demanded at the time of trial. 34. Denied. It is denied that Defendant or any of its agents were at the closing and discussed Tabatha's condition or Defendant's ability to accommodate her needs. Strict proof is demanded at the time of trial. 35. Admitted. 36. Admitted in part; denied part. It is denied that Adams was an agent of Defendant. It is admitted that Adams did stake out the approximate location of the footprint of the Plaintiffs' proposed house. As for the remaining allegations of the date and people present, after reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 37. Admitted but with qualifications. This paragraph is only admitted to the extent that the information accurate reflects the house plans, the lots, and subdivision plan. Strict proof is demanded at the time of trial. 38. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 39. Admitted in part; denied in part. It is admitted only that Adams stated that the grading for Plaintiffs' Lot would be flat to the porch and than steeper to the road than the lot across the street and that it had to be graded in accordance with the Subdivision Plan approved by South 8 Middleton Township street because of the natural flow of the land. denied. Strict proof is demanded at the time of trial. 40. Admitted in part; denied in part. It is admitted that Adams marked the proposed location of the house on the Property and that if he needed to resitu ate the location of the house, he would contact the Plaintiffs first. The remaining allegations are denied. Strict proof is demanded at the time of trial. 41. Admitted in part; denied in part. It is admitted that Adams contacted Purvis requesting that the footprint of the house be relocated twenty feet back from Adams's original, proposed location, not twelve feet. The request to relocate the footprint twenty feet back from the original, proposed location was denied by Plaintiffs, as they want ed to be able to construct a pool in their backyard in the future. Plaintiffs would only permit Adams to relocate the footprint twelve feet back from the original, proposed location. As to the exact date of this request, after reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 42. Denied. To the contrary, Adams requested that the footprint of the house be relocated twenty feet back from Adams's original, proposed location. Plaintiffs denied this request, as they wanted to be able to construct a pool in their backyard in the future, plaintiffs would only permit Adams to relocate the footprint twelve feet back from the original, proposed location. Strict proof thereof is demanded at time of trial. Adams also stated that the driveway would be steeper than the one across the All remaining allegations of this Paragraph are 9 43. Denied. It is denied that Defendant had any communications with Plaintiff about the setbacks, the construction of the home, or the purchase of the Lot. It is further denied that Adams was an agent of Defendant in this transaction. Strict proof is demanded at the time of teal. 44. Denied. It is denied that Defendant or any of its agents were resent at p a December 2005 meeting at the Lot. Strict proof is demanded at the time of trial. 45. Denied. It is denied that Defendant or any of its agents were present at a December, 2005 meeting. To the extent that Adams was present at any meeting, he was not acting as an agent of Defendant. To the extent that a further answer is required, it is denied that Plaintiffs expressed concern that they believed that the basement was set too high and it appeared to the Plaintiffs that their driveway would be too steep. In fact, Adams had shown Plaintiff Tabitha the height and depth of the basement and garage floor, Plaintiff Tabitha approved. Strict proof is demanded at the time of trial. 46. Admitted in part; denied in part. It is admitted only that Adams stated that the grading for Plaintiffs' Lot would be flat to the porch and than steeper to the road than the lot across the street and that it had to be graded in accordance with the Subdivision Plan approved by South Middleton Township. Adams also stated that the driveway would be steeper than the one across the street because of the natural flow of the land. denied. Strict proof is demanded at the time of trial. 47. Denied. It is denied that Defendant or any of its agents were present at a January 7, 2006 meeting. To the extent that Adams was present at any meeting, he was not acting as an agent of Defendant. To the extent that a further answer is required, it is denied that Plaintiffs expressed concern that they believed that the basement was not deep enough or the slope of the terrain in the All remaining allegations of this Paragraph are 10 front of the house would be too high. In fact, Adams had shown Plaintiff Tabitha the height and depth of the basement while shooting grade, which she approved. All remaining allegations are denied. Strict proof is demanded at the time of trial. 48. Denied. It is denied that Defendant or any of its agents were present at a January 19, 2006 meeting with Shover, Plaintiffs and Purvis. To the extent that Adams was present at a meeting, he was not acting as an agent of Defendant. To the extent that a further answer is required, it is denied that Plaintiffs expressed their concerned about the appearance of the grading of Lot 17 or that they were reassured that the grading of the driveway would not be steep once the house was finished. Strict proof is demanded at the time of trial. 49. Denied. It is denied that Defendant or any of its agents were present at a January 19, 2006 meeting. To the extent that Adams was present at any meeting, he was not acting as an agent of Defendant. To the extent that a further answer is required, it is denied that Adams stated that the driveway would grade down gradually when the project was finished. It is also denied that he stated that it might be necessary for him to "snake the driveway" so that Tabatha could negotiate it. Strict proof is demanded at the time of trial. 50. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 51. Denied. It is denied that Defendant or any of its agents were present at a February 8, 2006 meeting. To the extent that Adams was present at any meeting, he was not acting as an agent of Defendant. To the extent that a further answer is required, it is denied that Tabat ha relayed her concerns to Adams or that Adams joked that she could invest in some chains for her shoes. Strict proof is demanded at the time of trial. 52. Denied. It is denied that Defendant or any of its agents were present at a March 8 2006 meeting. To the extent that Adams was present at any meeting, he was not acting as a g an agent of Defendant. To the extent that a further answer is required, it is denied that Tabatha expressed her dissatisfaction with the slope of the driveway. Strict proof is demanded at the time of trial. 53. Denied. To the contrary, Adams stated that the driveway was built according to the grade of the land, because Plaintiffs wanted a high walkout basement, and because Plaintiffs would not allow Adams to relocate the footprint farther back on the Lot. All remaining allegations are denied. Strict proof is demanded at the time of trial. 54. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 55. Denied. To the contrary, Plaintiffs stated repeatedly how they loved the house. Strict proof is demanded. 56. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph an and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 57. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 12 58. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph and they, therefore, are denied. Strict proof thereof is demanded at time of trial. 59. Denied. It is denied that Defendant presented Plaintiffs with a bill of $325,763.44. The remaining allegations are denied. Strict proof is demanded at the time of trial. 60. Denied. It is denied that Defendant closed on the Property on June 27, 2005. To the extent that Adams was present at a closing, he was not acting as an agent of Defendant. Strict proof is demanded at the time of trial. 61. Denied as stated. Adams requested that a key be left on top of the cabinets in the garage so that he could access the house to finish items on Plaintiffs' punch list. The punch list indicated a completion date of July 7, 2007; however, the replacement of the porch post could not be completed within this timeframe because it had to be ordered from the manufacturer . Adams requested that the remaining miscellaneous items be completed at the time the porch post was replaced. Plaintiff husband agreed to the extension of the completion date. Strict proof is demanded at the time of trial. 62. Denied as stated. In order to obtain a new porch post, as requested by Plaintiffs, Y , it could not be completed within this timeframe because of the manufacturer's time constraints. Adams requested that the remaining miscellaneous items be completed at the time the new porch post was replaced. Plaintiff husband agreed to the extension of the completion date. Strict proof is demanded at the time of trial. 13 63. Denied. Adams informed Plaintiffs that the key was no longer on the top of the cabinets in their garage as a result of Plaintiffs relocating the cabinets. Strict proof is demanded at the time of trial. 64. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph an and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 65. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph an and, therefore, they are denied. To the extent that a response may be required, the driveway and front yard comply with the required Codes. Strict proof thereof is demanded at time of trial. 66. Denied. After reasonable investigation, Defendant is without sufficient information or knowledge to either admit or deny the allegations in this Paragraph and, therefore, they are denied. Strict proof thereof is demanded at time of trial. 67. Admitted. It is admitted that Defendant never discussed moving the driveway with Plaintiffs since Defendant was not the contractor for the project. Furthermore, Adams was not an agent for Defendant in this project. Strict proof is demanded at the time of trial. 68. Denied. It is denied that Defendant or any of its agents were present at a September 11, 2006 meeting with Purvis, Shover, Raymond Diehl, and Plaintiffs. To the extent that Adams was present at any meeting, he was not acting as an agent for Defendant. It is further denied that Raymond Diehl was at any meeting. Strict proof is demanded at the time of trial. 14 69. Denied. During this meeting, Wilbert Diehl asked Plaintiffs if they liked the house and the Lot. Plaintiffs indicated that they loved the house and Lot, but that, for the first time, they had an issue with the driveway. Strict proof is demanded at the time of trial. 70. Denied as stated. Defendant or any of its agents never had any discussions with Purvis, Shover or Plaintiffs about the construction of their house or the driveway, as Defendant was not the contractor for the project. Furthermore, it is admitted that Plaintiffs never informed Adams that the driveway had to be constructed in a certain manner other than what was designed. Strict proof is demanded at the time of trial 71. Denied. Defendant was not the contractor for the construction project. To the extent that an answer may be required, any work not completed by Adams is the result of Plaintiffs refusal to allow Adams access to the Property. Strict proof is demanded. 72. Denied. Defendant was not the contractor for the construction project and J , therefore, had no obligation to complete any of the alleged incompleted work. To the extent that an answer may be required, Adams requested permission from the Plaintiffs to access the Property, but Plaintiffs denied the request. Therefore, any work that was not completed was the result of Plaintiffs' refusal to allow Adams access the Property. Strict proof is demanded at the time of trial. COUNT I - RECESSION 73. Defendant incorporates by reference its responses to paragraphs 1 through 72 as if fully set forth at length herein. 74. Denied. Paragraph 74 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, it is denied that Defendant had a contract, 15 breached the Agreement or failed to construct and deliver to the Plaintiffs a house and property that would accommodate the Plaintiffs, needs. Strict proof is demanded at the time of trial. 75. Denied. Paragraph 75 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, it is denied that Defendant had a contract, breached the Agreement or deprived Plaintiffs of the benefit they reasonably expected. Strict proof is demanded at the time of trial. 76. Denied. Paragraph 76 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 77. Denied. Paragraph 77 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 78. Denied. Paragraph 78 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, Defendant did not have a contract with Plaintiffs. Strict proof is demanded at the time of trial. 79. Denied. Paragraph 79 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 80. Denied. Paragraph 80 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. 16 II -BREACH OF CONTRACT - DEMAND FOR D (in the alternative to Count I) 81. Defendant incorporates by reference its responses to paragraphs 1 through 80 as if fully set forth at length herein 82. Denied. The Specifications are written documents that speak for themselves. Any averments of their content asserted by Plaintiffs are of their own interpretation of the Specifications. To the extent that a response may be required, Defendant did not have a contract with Plaintiffs. Strict proof is demanded at the time of trial. 83. Denied. It is denied that Defendant had a contract with Plaintiff. To the extent that a response may be required, the Agreement and Specifications are written documents that speak for themselves. Any averments of their content asserted by Plaintiffs are of their own interpretation of the Specifications. Strict proof is demanded at the time of trial. 84. Denied. It is denied that Defendant failed to remove the topsoil or to properly excavate Lot IT To the extent that a response may be required, Defendant did not have a contract with Plaintiffs. Strict proof is demanded at the time of trial. 85. Denied. Paragraph 85 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, Defendant did not have a contract with Plaintiffs. Strict proof is demanded at the time of trial. 86. Denied. Paragraph 86 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 17 87. Denied. Paragraph 87 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, Plaintiffs have not been injured and are not entitled to any award whether in equity or in law. Strict proof is demanded at the time of trial. 88. Denied. Paragraph 88 is denied as a conclusion of law that does not require a response. To the extent that a further response may be required, Plaintiffs are not entitled to be compensated for any remaining work that has not been completed, as it is the result of the Plaintiffs' refusal to allow Adams back on the Property. Strict proof is demanded at the time of trial. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. COUNT III - NEGLIGENT MISREPRESENTATION 89. Defendant incorporates by reference its responses to paragraphs 1 through 88 as if fully set forth at length herein 90. Denied. Paragraph 90 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 91. Denied. Paragraph 91 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 92. Denied. Paragraph 92 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 93. Denied. Paragraph 93 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 18 94. Denied. Paragraph 94 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. COUNT IV - PROMISSORY ESTOPPEL 95. Defendant incorporates by reference its responses to paragraphs 1 through 94 as if fully set forth at length herein 96. Denied. Paragraph 96 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 97. Denied. Paragraph 97 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 98. Denied. Paragraph 98 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 99. Denied. Paragraph 99 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. COUNT V - BREACH OF EXPRESS AND IMPLIED WARRANTIES 100. Defendant incorporates by reference its responses to paragraphs 1 through 99 as if fully set forth at length herein 19 101. Denied. Paragraph 101 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 102. Denied. Paragraph 102 is denied as a conclusion of law that does not require a response. To the extent that a response may be required, the Property is not unsuitable for the Plaintiffs' needs. Strict proof is demanded at the time of trial. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. COUNT VI - FRAUD 103. Defendant incorporates by reference its responses to paragraphs 1 through 102 as if fully set forth at length herein 104. Denied. Paragraph 104 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 105. Denied. Paragraph 105 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 106. Denied. Paragraph 106 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 107. Denied. Paragraph 107 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 108. Denied. Paragraph 101 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 20 109. Denied. Paragraph 109 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. COUNT VII - VIOLATIONS OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW, 73 P.S. 4201-1 ET SEQ. 110. Defendant incorporates by reference its responses to paragraphs 1 through 109 as if fully set forth at length herein 111. Denied. Paragraph 111 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 112. Denied. Paragraph 112 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. 113. Denied. Paragraph 113 is denied as a conclusion of law that does not require a response. Strict proof is demanded at the time of trial. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. NEW MATTER By way of further answer and defense, Defendant avers the following New Matter in accordance with Pennsylvania Rule of Civil Procedure 1030: 114. Paragraphs 1 through 113 are incorporated herein by reference. 21 115. Plaintiffs' actions are barred by the applicable statute of limitations. 116. Plaintiffs' have failed to state a cause of action upon which relief can be granted. 117. Plaintiffs' claims are barred or limited by the doctrine of res judicata, laches, consent, fraud and/or collateral estoppel. 118. Plaintiffs' claims are barred in whole or in part by the doctrine of waiver. 119. Plaintiffs' claims are barred in whole or in part by the doctrine of accord and satisfaction. 120. Plaintiffs' claims are barred in whole or in part by the doctrine of release. 121. Defendant did not have a contract with Plaintiffs 122. Defendant did not breach any contract or obligation owed to Plaintiffs. 123. Plaintiffs have failed to join an indispensable party. 124. Plaintiffs refused to allow Adams on the Property to complete the items and, therefore, are barred from receiving damages by their own bad faith conduct. 125. Plaintiffs never informed Adams that Plaintiff Tabatha was handicapped or needed any special accommodations. 126. Plaintiff Tabatha is not handicapped. 127. Plaintiffs have been enjoying the use of the Property since June 26, 2006. 128. Plaintiffs accepted the Property when they settled on June 26, 2006 and failed to list the issue of the driveway on the punch list. 129. Plaintiffs would not permit the house to be relocated more than 12 feet back on the Lot since they wanted room for a pool in the future. 130. Plaintiffs denied Adams request to relocate the house foot twenty feet back from 22 the original, proposed location. 131. Defendant incorporate all defenses identified in the Agreement. 132. Plaintiffs' claim is barred by their failure to satisfy all conditions precedent to Defendant's performance under the Agreement. 133. Plaintiffs' claim is barred by their non-performance. 134. At all times relevant to this Complaint, Adams was not an agent of Defendant. 135. Defendant is not legally obligated by any of the actions of Adams since he was not an agent. 136. Plaintiffs' did not rely upon any statements of Adams as to the nature of Lot 17, which they visually inspected, investigated and purchased from a third-party. 137. Plaintiffs' purchased Lot 17 from Residential Homes. 138. Any alleged reliance by the Plaintiffs on any representations made by Defendant, same being denied, was not reasonable under the circumstances and, therefore, Plaintiffs' claims must fail. 139. Plaintiff's claims are barred by the doctrine of unclean hands. 140. Plaintiffs received the benefits they reasonably expected. 141. Plaintiffs' can be fully compensated by monetary damages and are not entitled to equitable relief. 142. Defendant has acted in good faith and fair dealings. 143. Defendant's representations, if any, were not made with the intent to have Plaintiffs rely upon them. 144. Plaintiffs' did not justifiably rely upon Defendant's statements, if any. 23 145. Any damages sustained by Plaintiffs, which is denied, were not proximately and/or directly caused by the actions or inactions of Defendant. 146. Defendant did not engage in any fraudulent and/or deceptive conduct. 147. Plaintiffs are not entitled to attorney fees, treble damages or cost under the Pennsylvania Unfair Trade Practices and Consumer Protection Law since Defendants conduct was not reckless or outrageous warranting punitive damages. 148. Plaintiffs' home was completed with reasonable workmanship. 149. Plaintiffs' home is habitability. WHEREFORE, Defendant avers that it is not liable to Plaintiffs in any amount whatsoever and prays that the claims against it be dismissed and that it be awarded costs of defense, including attorney fees, and such other and further relief as may be just and appropriate. SALZMANN HUGHES, P.C. Y :Ralph Go squire Attorney I.D. No. 95 Alexander Spring Road Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorneys for Defendant Jr 42 - Ark Dated: 24 VERIFICATION I, Albert E. Adams, III, hereby certify that the facts set forth in the foregoing Defendant's Answer and New Matter are based upon information which I have furnished to counsel, as well as upon information which has been gathered by counsel and/or others acting on my behalf in this matter. The language of the Pleading is that of counsel and not my own. I have read the Pleading, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the Pleading is that of counsel, I have relied upon such counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Pleading are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. 1 -- lbert E. Adams, III Date: ?? -' a 6 ;;, CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Answer and New Matter by mailing a copy thereof on this ..fir- a day of December, 2007, to: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 SALZMANN HUGHES, P.C. By 25 C"I r? ; i Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Phone: (717) 232-5000 Fax: (717) 236-1816 rlfinck@mette.com MARIO UMBELINA and TABATHA IN THE COURT OF COMMON PLEAS SANTORE-UMBELINA, husband and CUMBERLAND COUNTY, PENNSYLVANIA wife, Plaintiffs NO. 07-3731 V. ADAMS AND BREAM BUILDERS, LLC, Defendant ANSWER TO DEFENDANT'S NEW MATTER 114. The averments of Plaintiffs' Complaint are incorporated herein by reference as if fully set forth. 115. Denied. The averments of paragraph 115 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 116. Denied. The averments of paragraph 116 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 117. Denied. The averments of paragraph 117 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 118. Denied. The averments of paragraph 118 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 119. Denied. The averments of paragraph 119 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 120. Denied. The averments of paragraph 120 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 121. Denied. The averments of paragraph 121 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs and the Defendant did not have a contract. To the contrary, Plaintiffs and Defendant did have a contract and strict proof to the contrary is demanded. 122. Denied. The averments of paragraph 122 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Defendant did not breach its contractual obligations to the Plaintiffs. To the contrary, Defendants have breached their contractual obligations to the Plaintiffs. Strict proof to the contrary is demanded. 2 123. Denied. The averments of paragraph 123 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, as the Defendant has failed to identify an unnamed, indispensable party, Plaintiffs are without information to form a belief as to the truth of the averments of paragraph 123. Said averments are accordingly denied and strict proof thereof is demanded, if deemed relevant. 124. Denied. The averments of paragraph 124 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs' refusal to permit Adams onto the property constituted bad faith conduct. To the contrary, Plaintiffs only refused to allow Adams onto the property after the Defendant had breached its contract with the Plaintiffs. Strict proof to the contrary is demanded, if deemed relevant. 125. Denied. It is specifically denied that the Plaintiffs never informed Adams that Tabatha was handicapped or needed special accommodations. To the contrary, Plaintiffs repeatedly informed Adams of Tabatha's condition. Strict proof to the contrary is demanded. 126. Denied. It is specifically denied that Tabatha is not handicapped. To the contrary, Tabatha is a handicapped individual. Strict proof to the contrary is demanded, if deemed relevant. 127. Admitted in part; denied in part. It is admitted only that the Plaintiffs have been occupying the property since June of 2006. Any implication that the Plaintiffs have been enjoying the full extent of the benefits for which they contracted with the Defendants, is specifically denied and strict proof thereof is demanded. 128. Admitted in part; denied in part. It is admitted only that the Plaintiffs settled on the property on June 26. 2006. It is further admitted that the issue of the driveway was not included on the punch list. Plaintiffs specifically denied that they knowingly accepted the property. By way of further answer, the Plaintiffs closed on the property as a result of the Defendant's misrepresentations as set forth in Plaintiffs' Complaint. The remaining averments of paragraph 128 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 129. Denied. It is specifically denied that the Plaintiffs would not permit the house to be relocated more than twelve (12) feet back on the lot. To the contrary, Plaintiffs offered to permit the house to be located more than twelve (12) feet back on the lot if doing so was necessary to decrease the slope of the driveway. Strict proof to the contrary is demanded, if deemed relevant. 130. Denied. It is specifically denied that the Plaintiffs ever denied any request by Adams to relocate the house. It is further specifically denied that Adams ever made a request to relocate the house more than twenty (20) feet back from the original, proposed location. Strict proof to the contrary is demanded, if deemed relevant. 4 131. Admitted in part; denied in part. It is admitted that the Agreement is an instrument in writing which as such speaks for itself. To the extent the Defendant misquotes, mischaracterizes, misinterprets, elaborates upon or removes the contents of the writing from their context, said averments are denied and strict proof thereof is demanded if deemed relevant. 132. Denied. The averments of paragraph 132 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Plaintiffs have failed to satisfy any conditions precedent to Defendant's performance under the Agreement. To the extent the Defendant fails to identify what conditions it alleges the Plaintiffs failed to perform, Plaintiffs are without information sufficient to form a belief as to the truth of the remaining averments of paragraph 132 and strict proof thereof is demanded. 133. Denied. The averments of paragraph 133 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs failed to perform any legal obligations to the Defendant. Strict proof to the contrary is demanded, if deemed relevant. 134. Denied. The averments of paragraph 134 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Adams was not an agent of the Defendant. To the contrary, Plaintiffs believe and therefore aver that Adams was, in fact, an agent of the Defendant. Strict proof to the contrary is demanded, if deemed relevant. 5 135. Denied. The averments of paragraph 135 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 136. Denied. The averments of paragraph 136 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs did not rely upon statements of Adams as to the nature of Lot IT To the contrary, Plaintiffs' purchase of Lot 17 was based, in part, on Adams' representations as to the suitability of Lot 17 to meet the Plaintiffs' needs. Strict proof to the contrary is demanded, if deemed relevant. 137. Denied. It is specifically denied that the Plaintiffs purchased Lot 17 from Residential Homes. To the contrary, Plaintiffs purchased the Property from a Pennsylvania partnership known as "Residential Homes Company." 138. Denied. The averments of paragraph 138 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs' reliance on the representations of Defendant was not reasonable under the circumstances. Strict proof to the contrary is demanded, if deemed relevant. 139. Denied. The averments of paragraph 139 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 6 140. Denied. The averments of paragraph 140 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs received all of the benefits they reasonably expected. Strict proof to the contrary is demanded, if deemed relevant. 141. Denied. The averments of paragraph 141 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Plaintiffs can be fully compensated by monetary damages. Strict proof to the contrary is demanded, if deemed relevant. 142. Denied. The averments of paragraph 142 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Defendant acted in good faith and engaged in fair dealings. Strict proof thereof is demanded, if deemed relevant. 143. Denied. The averments of paragraph 143 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Defendant's representations were not made with the intent to have Plaintiffs rely on them. Strict proof thereof is demanded, if deemed relevant. 144. Denied. The averments of paragraph 144 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a 7 response is deemed required, it is specifically denied that the Plaintiffs did not justifiably rely on the Defendant's representations. Strict proof to the contrary is demanded, if deemed relevant. 145. Denied. The averments of paragraph 145 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs' damages not proximately and/or directly caused by the actions or inactions of the Defendant. Strict proof to the contrary is demanded, if deemed relevant. 146. Denied. The averments of paragraph 146 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Defendant did not engage in any fraudulent and/or deceptive conduct. Strict proof to the contrary is demanded, if deemed relevant. 147. Denied. The averments of paragraph 147 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Defendant's conduct was not outrageous or reckless. Strict proof to the contrary is demanded, if deemed relevant. 148. Denied. The averments of paragraph 148 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a 8 response is deemed required, it is specifically denied that the Defendant completed the Plaintiffs' home with reasonable workmanship. Strict proof thereof is demanded, if deemed relevant. 149. Denied. The averments of paragraph 149 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that the Plaintiffs' home is fully habitable as agreed to by the parties. Strict proof to the contrary is demanded, if deemed relevant. WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in favor of the Plaintiffs, and against the Defendant, together with attorneys' fees, court costs, punitive damages, and such other relief as the Court may find just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: _;l Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Plaintiffs Date: December 21, 2007 9 VERIFICATION I, TABATHA SANTORE-UMBELINA, have read the foregoing document and verify that the facts set forth herein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. DATED: I? /7115 ABATHA SANTORE. ELINA CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: E. Ralph Godfrey, Esquire SALZMANN HUGHES PC 354 Alexander Spring Road Suite 1 Carlisle, PA 17013 Respectfully submitted, METTE, EVANS & WOODSIDE By: Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Plaintiffs Date: December 21, 2007 4842140 C?' r?-s : t`? ?' ? -n .: ?Y a? .'.-# C; ?? ? ..t r .? -? ?i ? . 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION -LAW PRAECIPE TO WITHDRAW APPEARANCE Please withdraw the appearance of SALZMANN HUGHES, P.C. as counsel of record for the Defendant ADAMS AND BREAM BUILDERS, LLC in the above-referenced matter. SALZMANN HUGHES, P.C. Dated: 4/2/08 B• E. ph o ey, Es Attorney ID# 7 354 Alexander Spring Road Suite 1 Carlisle, PA 17013 717-249-6333 Attorney for Defendant ry CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe to Withdraw Appearance upon all parties to this action, by mailing a copy thereof on this 2°d day of April, 2008, to: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 ::?: -- o Vey K.4p ?a i ON' to IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, NO. 07-3731 Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant CIVIL ACTION -LAW PRAECIPE TO ENTER APPEARANCE Please enter the appearance of LAVERY, FAHERTY, YOUNG & PATTERSON, P.C. as counsel of record for the Defendant ADAMS AND BREAM BUILDERS, LLC in the above- referenced matter. LAVERY, FAHERTY, YOUNG & PATTERSON, P.C. By: E. Ralph frey, Esquire Attorney ID 225 Market Street, Suite 304 PO Box 1245 Harrisburg, PA 17108-1245 717-233-6633 Dated: 4!2!08 Attorney for Defendant P? A CERTIFICATE OF SERVICE I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe to Enter Appearance upon all parties to this action, by mailing a copy thereof on this 2"d day of April, 2008, to: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 B L Ralp odfre 7.""Esquir E-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION --LAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, vs. Plaintiffs JACK ADAMS, Individually, and JACK ADAMS BUILDERS, LLC., Defendants NO. 08-4393 CIVIL ACTION --LAW JURY TRIAL DEMAND STIPULATION TO CONSOLIDATE IT IS HEREBY STIPULATED AND AGREED by the undersigned counsel for all parties in the above-captioned lawsuits that the above referenced lawsuit, are consolidated for discovery and trial. The cases are to be consolidated under Docket No. 08-4393. This Stipulation may be executed in counterparts and a facsimile or photocopy reproduction of signatures shall have the effect of original signatures. Ronald Finck, Esquire Attorney for Plaintiffs 7-- 21-- 0 9 P 2(c--- ? ? ? E. Ral h G frey, ' uire Attorney for Defendants ?- 23 .- 6 1 ?i Cf 4- i J Op TH? 2009 JUL 2f+ f li 3: 010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs . VS. ADAMS AND BREAM BUILDERS, LLC Defendant NO. 07-3731 CIVIL ACTION -LAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, vs. Plaintiffs JACK ADAMS, Individually, and JACK ADAMS BUILDERS, LLC., Defendants NO. 08-4393 CIVIL ACTION -LAW JURY TRIAL DEMAND ORDER JUL ? 7 2009 4 AND NOW, this 2 18 ` day of 2009, upon consideration of the attached Stipulation of Counsel said Stipulation of Counsel is hereby APPROVED. It is ORDERED and DECREED that the above captioned lawsuits are consolidated for discovery and trial under Docket No. 08-4393. BY THE COURT: t A4 R, Lit'; OF T HIE- F ."' j'"l'7;1Y 2009 JUL 29 AM 10: 21 17A 9 F/0 4 F tq C Y . ;2tt4i4.._ a=& MARIO UMBELINA AND TABATHA SANTORE-UMBELINA, PLAINTIFFS V. JACK ADAMS, INDIVIDUALLY AND JACK ADAMS BUILDERS, LLC, DEFENDANTS =a t IN THE COURT OF COMMON?fi?-.,EAZOF?_, CUMBERLAND COUNTY, PENgSY&AI.IA-_ -?1 tom: 08-4393 CIVIL TERM IN RE:' PRETRIAL CONFERENCE A pretrial conference was held on June 9, 2010, with plaintiffs' counsel, Ronald L. Finck, Esquire, and defense counsel, E. Ralph Godfrey, Esquire, in attendance. Plaintiffs brought this case against the contractor of their new home claiming that fraudulent misrepresentations were made regarding the "quality and character" of the home. A significant concern involves the grading of the property in general and the driveway in particular. With respect to the latter, plaintiff contends that the slope of the driveway is in violation of South Middleton Township requirements. Although plaintiffs have pursued claims in equity and law, plaintiffs agree with defendant's contentions that the remedies of rescission of the contract and damages under the contract are inconsistent. Therefore, plaintiffs have agreed to limit their claims to rescission and restitution along with claims under the Pennsylvania Unfair Trade Practices & Consumer Protection Law, 73 P.S. § 20101 et seq. The parties will submit a proposed order dismissing the other claims. Plaintiff argues that a site view of the property is essential to understand the aforesaid sloping issues. Defendant opposes the view. Allowing one-half day for such a view will result in a trial of approximately three and one-half days. The parties agree 08-4393 CIVIL TERM that note taking by the jurors is acceptable. Each side shall have four peremptory challenges. The parties did refine the witness list slightly at the pretrial conference and defendant agreed to stipulate to the authenticity of the various repair estimates that plaintiffs will introduce. For scheduling purposes, plaintiff Mario Umbelina is currently deployed overseas but has arranged to be present for the week of trial. The solicitor for South Middleton Township, Richard Mislitsky, Esquire, has requested that the Township Code Officer (to be called by the plaintiff), not be called on Friday the 25th when Mr. Mislitsky is not available. It is not anticipated that that will present a problem. Finally, the court has more closely examined the prior tangential involvement of the firm of Saidis, Flower & Lindsay in this matter. Given that the firms' representation at settlement occurred at a time when the court was not associated with the firm, the court sees no need to recuse from the case. If either party feels otherwise, it should promptly notify the Court Administrator. By the Court, Albert H. Masland, J. Ronald L. Finch, Esquire For Plaintiffs E. Ralph Godfrey, Esquire For Defendants Court Administrator :sal -2- MARIO UMBELINA AND TABATHA SANTORE-UMBELINA, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JACK ADAMS, INDIVIDUALLY AND JACK ADAMS BUILDERS, LLC, DEFENDANTS 08-4393 CIVIL TERM ORDER OF COURT AND NOW, this 16th day of June, 2010, IT IS HEREBY ORDERED AND DIRECTED that plaintiffs have elected to proceed with the equitable cause of action for recission and the cause of action under the Unfair Trade Practices and Consumer Protection Law. Therefore, the cause of action for Count 11 - breach of contract; Count II I - negligent misrepresentation; Count IV - promissory estoppel; Count V - breach of express and implied warranties; and Count VI - fraud are dismissed with prejudice. Nothing in the order shall prohibit the plaintiff from presenting evidence of defendants' alleged breaches of contract, breaches of warranties, and fraud in support of their recission claim. By the Court, E 'Ronald L. Finch, Esquire For Plaintiffs ?alph Godfrey, Esquire For Defendants :sal Albert . AMasland., J. N r? Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rlfinck@mette.com MARIO UMBELINA, and TABATHA SANTORE-UMBELINA, husband and. wife, Plaintiffs V. JACK ADAMS, Individually, JACK, ADAMS BUILDERS, LLC and ADAMS & BREAM BUILDERS, LLC, Defendants C: m IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-4393, consolidated with No. 07-3781 : JURY TRIAL DEMANDED PLAINTIFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW The Plaintiffs, Mario Umbelina. ("Mario') and Tabatha Santore-Umbelina ("Tabatha") (collectively the "Plaintiffs"), by and through their attorneys METTE, EVANS & WOODSIDE, file the following Proposed Findings of Fact and Conclusions of Law, as follows: PLAINTIFFS' PROPOSED FINDINGS OF FACT 1. The Parties 529622vl I . Plaintiffs are adult individuals and husband and wife residing at 415 Woodlawn Lane, Carlisle, Pennsylvania 17015; said residence is the subject matter of this lawsuit. (TT p. 8) 2. Defendant, Jack Adams Builders, LLC ("Jack Adams Builders") is a Pennsylvania limited liability company with a registered address at 301 East Springville Road, Boiling Springs, Pennsylvania 17007 and a business address at 3 Arbor Drive, Boiling Springs, Pennsylvania 17007. 3. Defendant, Adams & Bream Builders, LLC ("Adams & Bream"), is a limited liability company with a registered address at 115 Stable Run, Zelienople, Pennsylvania 16063 and a business at 3 Arbor Drive, Boiling Springs, Pennsylvania 17077. 4. Defendant, Jack Adams ("Adams") is an adult individual with an address at 3 Arbor Drive, Boiling Springs, Pennsylvania 17007. (TT p. 417) 5. Adams is the sole member of Jack Adams Builders. (TT at 419) 6. Adams and his friend, Sid Bream, are the sole members of Adams & Bream. (TT at 418) II. Negotiation of the Agreement 7. At some point in or about the spring of 2005, Plaintiffs decided to search for vacant real estate upon which they could build a house. (TT p. 14) 8. The Plaintiffs wanted a new home because Tabatha suffers from chronic knee pain in both knees and has undergone two experimental knee surgeries (Carticel Replacements). (TT p. 9-11) Accordingly, the Plaintiffs' intent was to build a house that would accommodate Tabatha's limited mobility. (TT p.9) 2 1 9. Significant to the Plaintiffs' decision to build a new house was the fact that Mario is out-of-the-country for the majority of the year due to his employment with a U.S. defense contractor. Currently he is serving in the Middle East. (TT p. 102-103; 247) Accordingly, Tabatha is required to care for the property on her own. 10. In or about May of 2005, Tabatha discovered property located in a development named Jefferson Court in South Middletown Township, Cumberland County, Pennsylvania. (TT p. 14, 15, 245) 11. The Property was subdivided pursuant to a subdivision titled Final Subdivision Plan of Jefferson Court. (TT p. 17, 144; Plaintiffs' Ex. 2; Defendant's Ex. 4) 12. A sign on the Jefferson Court property instructed interested potential buyers to contact the real estate agency, Ebener & Associates. (TT p. 14) 13. In or about May of 2005, Tabatha contacted Ebener & Associates and spoke with real estate broker, Robert J. Purvis of ("Purvis"), to inquire about available lots in the Jefferson Court Subdivision. (TT p. 15, 16; 248; 402 Plaintiffs' Ex. 1) 14. Tabatha explained to Purvis that due to her disabilities, the Plaintiffs required a lot and home of relatively flat terrain that would accommodate Tabatha's limited mobility. (TT p. 129) 15. The Plaintiffs signed an Exclusive Buyer Agency Contract pursuant to which Purvis was to act as the buyers' agent in the proposed transaction. (Plaintiffs' Ex. 1) 16. Purvis met with the Plaintiffs and showed the Plaintiffs available lots in the Jefferson Court Subdivision. (TT p. 17) 3 17. Among those available lots in the Jefferson Court Subdivision was Lot 17. (TT at 17-19) 18. Plaintiffs believed that Lot 17 was owned by Adams & Bream. (TT p. 18-19; 292), however Lot 17 was actually owned by the Residential Homes Company. 19. Jack Adams Builders was the exclusive developer for Lot 17 pursuant to an agreement with Residential Homes Company (TT p. 467). Thus, though legal title in the property was vested in Residential Homes Company, Jack Adams Builders had an equitable ownership interest in Lot 17. 20. Jack Adams Builders was represented by Linda Shover ("Shover"); also a realtor at Ebener & Associates. (TT p. 24; 485) 21. Plaintiffs visited Lot 17 several times before making their decision to purchase the lot. (TT at 19) 22. Tabatha's mother, Carol Dougherty, accompanied the Plaintiffs during some of these visits to Lot 17. 23. Lot 17 had not been cleared during the Plaintiffs' initial visits, with some brush and trees in the back and had a slight slope starting in the middle of the lot, slowing elevating toward back of the lot. (TT p. 17-19; Plaintiff's Ex. 30) 24. Tabatha's mother, Carol Dougherty, acknowledged that she visited Lot 17 a couple of times prior to construction. She stated that Lot 17 did have a slight incline, from front to back, but that she was able to walk it without difficulty (TT p. 229; 231) 4 25. Purvis introduced the Plaintiffs to Adams at a joint meeting between himself, the Plaintiffs and Adams to discuss the Property and to negotiate an Agreement for the Sale of New Construction. This meeting occurred in or about the end of May of 2005. (TT p. 22, 25; 248) 26. At this initial meeting in May of 2005, the Plaintiffs told Adams that Tabatha needed to be able to maintain the grounds, wanted to minimize the amount of stairs in the house, and did not want the driveway or yard to be steep. (TT p. 213; 248; 282) 27. Though in the pleadings Adams denied all knowledge of Tabatha's condition, Adams admitted on that stand that during this preliminary meeting, Tabatha discussed with him her experimental knee surgeries. (TT p. 444; 469-470) 28. Adams asked the Plaintiffs whether they needed ramps. (TT p. 112; 213; 248; 283) 29. Adams informed the Plaintiffs that a ranch-style home would cost the Plaintiffs more money than a two-story home and suggested that the Plaintiffs choose a two-story house plan that incorporated the master-bedroom into the first floor. (TT p. 24; 130-131; 249; 423) 30. Plaintiffs informed Adams that it was essential that the lot be flat enough to enable Tabatha to care for it in the likely event that Mario would be deployed in connection with his duties. (TT p. 28; 248) 31. Throughout the process of negotiating how to build the house and the prices for same, Plaintiffs discussed with Adams the various surgeries Tabatha had and her disability. (TT p. 212; 217) 32. Adams reiterated that Plaintiffs were in good hand and that he understood Tabatha's needs. (TT p. 28) 5 33. Adams pointed to the neighboring Lot 15 and stated that when construction of the Plaintiffs' home was finished, Lot 17 would be graded in the same manner as Lot 15. (TT p. 216) 34. Adams and the Plaintiffs had several conversations about Adams' building experience and about his partnership with Sid Bream. (TT at p. 23) Adams assured the Plaintiffs that they were in good hands hiring "him and Mr. Bream." (TT at p. 24) 35. Though the Plaintiffs initially wanted a ranch style house in order to minimize stairs, Adams suggested that the Plaintiffs start looking at two-story home plans in order to keep the costs within the Plaintiffs' budget. (TT at p. 24) 36. Adams further suggested that the master-bedroom be located on the first floor. (TT at p. 24) 37. During their initial discussions, the Plaintiffs explained to Adams that Tabatha would have to maintain the house in the likely event that Mario was deployed. (TT at p. 25, 28) 38. The Plaintiffs decided to follow Adams's advice to select a two-story house. (TT p.24;262;424) 39. The Plaintiffs researched possible home plans on the internet. (TT p. 25) 40. Plaintiffs showed Adams some house plans they identified as being suitable to Tabatha's needs. (TT p. 25-26; 213-214; 250; Plaintiffs Ex. 3) 41. In or about July of 2005, the Plaintiffs identified a home plan, presented it to Adams, and asked for a quote for Adams to build the house depicted in the plan. (TT p. 26, Plaintiffs' Ex. 3) 6 42. Mario specifically inquired with Adams as to the feasibility of building the plan they selected given Tabatha's disability and that lower access in and around the property was required. (TT p. 251; 263) 43. Adams informed the Plaintiffs that Lot 17 would accommodate the house plan the Plaintiffs had selected. Adams specifically stated the Defendant would be able to build the house on Lot 17 within the applicable setback requirements. (TT p. 27; 251-252) 44. Adams assured the Plaintiffs that Lot 17 would be able to accommodate the house plan selected by the Plaintiffs. (TT p. 27) 45. The Plaintiffs sat down with Adams and specified what they wanted included in the house. (TT. p. 29) 46. Adams typed up the specifications selected by the Plaintiffs. Using the Plaintiffs' specifications, Adams drafted a proposal to build the house for $307,000. (TT p. 29-30, 33) 47. In August, 2005, Adams, Purvis and the Plaintiffs assembled for a meeting. During the meeting Adams presented the Plaintiffs with the typed specifications and proposal to construct the proposed house on Lot 17 for $307,000. (TT p. 29-30; Plaintiff's Ex. 4, 5). 48. Plaintiffs state that both the proposal for the house (Plaintiff s Ex. 4) and the specifications for the house (Plaintiff s Ex. 5) were provided to them by Adams, at the same time, during this August, 2005 meeting. (TT p. 30) 49. The specifications were typed up on Adams & Bream letterhead. The proposal immediately followed the specifications and was on Jack Adams Builders letterhead. (TT p. 30, Plaintiffs' Exs. 4, 5) 7 50. The Plaintiffs did not notice that these documents appeared to be coming from two different companies. (TT p. 30) 51. Plaintiffs did not question why the proposal (Plaintiff's Ex. 4) was titled Jack Adams Builders, LLC and the specifications (Plaintiff s Ex. 5) were titled Adams & Bream Builders, LLC. (TT p. 30) 52. The Plaintiffs were unaware of what the precise relationship was between Jack Adams, Adams & Bream, and Jack Adams Builders. (TT p. 39) 53. The Plaintiffs and Adams made a series of changes to the proposal and specification documents and ultimately signed them. (TT p. 33) 54. The $307,000 figure included the real estate as well as construction of the house. (TT p. 35) 55. The arrangements negotiated by the Plaintiffs and Adams was formalized with the signing of a document titled `Standard Agreement for the Sale of New Construction' in or about October of 2005. (TT p. 36, Plaintiffs' Ex. 6) 56. The Standard Agreement for the Sale of New Construction was executed on October 13, 2005 by the Plaintiffs. (Plaintiffs' Ex. 6) 57. The Standard Agreement for the Sale of New Construction was executed by Adams on October 15, 2005. (Plaintiffs' Ex. 6) 58. The Standard Agreement for the Sale of New Construction does not identify the seller/builder. (Plaintiffs' Ex. 6) 8 59, The Standard Agreement for the Sale of New Construction was executed by `Jack Adams' and there was no designation as to whether he was signing same in his individual capacity or on behalf of Jack Adams Builders or Adams & Bream. (Plaintiffs' Ex. 6) 60. Paragraph 12(F) of the Standard Agreement for the Sale of New Construction provides as follows: "Seller will comply with all restrictions and requirements imposed by any governmental authorities." (Plaintiffs' Ex. 6) 61. Paragraph 15 of the Standard Agreement for the Sale of New Construction provides in relevant part that the Seller was responsible for the grading of the Lot 17. (Plaintiffs' Ex. 6) 62. The building specifications (on Adams & Bream letterhead) were specifically incorporated into the Standard Agreement for the Sale of New Construction at paragraph 31 (F) with the designation `per builder.' (TT p. 38-39; Plaintiffs' Ex. 6). 63. After multiple discussions with Purvis, Shover and Adams, Plaintiffs eventually purchased Lot 17 from a third party, Residential Homes Company, a Pennsylvania partnership located in Pennsylvania (TT p. 19; 292; Plaintiffs' Ex. 7) 64. From the very beginning of these negotiations, it was Plaintiffs' understanding based on their conversations with Purvis and with Adams, that they were contracting with Adams & Bream. (TT p. 23; 215; 220; 249-250) 65. The Plaintiffs understanding was supported by the fact that the Specifications were on Adams & Bream Letterhead and were specifically incorporated into the Agreement for the Sale of New Construction; which Agreement for the Sale of New Construction did not otherwise identify the seller/builder. (Plaintiffs' Ex. 6) 9 66. Adams discussed his partner, Sid Bream, stating Plaintiffs "would be in good hands hiring hire and Mr. Bream". (TT p. 24; 215) 67. During Carol Dougherty's meetings with Adams, Adams specifically stated his partner was Sid Bream. (TT p. 235) 68. Plaintiffs did not inquire as to the corporate structure of Adams & Bream, LLC. (TT p.39; 296) 69. Adams assured the Plaintiffs that he had over 20 years experience in building homes. (TT p. 23; 297) 70. Adams admits, however, that he had never before built a house from start to finish. (TT p. 466) 71. The Plaintiffs closed on Lot 17 on November 14, 2005 in the office of Saidis, Flower & Lindsay, the attorney for the Plaintiffs.(TT 40) 72. Plaintiffs became the owners of the Lot 17 by deed dated November 7, 2005. (Plaintiffs Ex. 7) III. Location of the House on Lot 17 73. Lot 17 contains 1.2 acres, more or less. The footprint of the house is approximately 1752 square feet. (TT p. 48) 74. After the November 7, 2006 closing on the Property, Adams, Shover, Purvis and the Plaintiffs met on Lot 17 to discuss the location of the house on the lot. Prior to this meeting Adams staked out the approximate location of the Lot's setback restrictions under the Township's ordinances and the subdivision plan. (TT p. 49; Plaintiffs' Ex. 30) 10 75. The setback stakes were not at the 30 foot setback line in the back of the Property but instead were placed before a tree line at the back of Lot 17. (TT p. 294) 76. Adams suggested where within the limitations of the setback requirements he thought the house should go and the Plaintiffs agreed. (TT p. 49) The proposed location of the footprint of the house was marked, by Adams, with paint. (TT p. 49) 77. During this meeting, the Plaintiffs reiterated that the driveway and front yard could not be steep. (TT p. 50) Plaintiffs expressed concern about any kind of steepness at all to the Property to which Adams responded not to worry that he would follow a certain grade that would satisfy Plaintiffs' needs. (TT p. 50) 78. With the Plaintiffs' acquiescence, Adams marked the proposed location of the house on the Property. Adams indicated that if he needed to resituate the location of the house, he would contact the Plaintiffs first. (TT p. 50; 147) 79. The parties agreed that if Adams needed to move the footprint back further on the lot, he should contact the Plaintiffs. (TT p. 50) 80. Several days after the meeting to stake out the footprint of the house, Purvis contacted the Plaintiffs and requested the Plaintiffs' approval to resituate the footprint of the house approximately twelve (12) feet back from Adams' original, proposed location. (TT p. 50- 51; 254) 81. The Plaintiffs agreed to Adams' request to move the footprint back. (TT p. 51) 11 IV. Commencement of Construction A. Slope of the Driveway and Front Yard 82. Shortly after the location for the footprint of the house was determined, construction began. Tabatha visited the Property to observe construction as often as she could. (TT at p. 51) Tabatha took pictures of the Property prior to and during construction. (TT p. 47) 83. One such visit by Tabatha occurred shortly after the basement had been excavated and the walls of the basement were built. (TT at 52;) Tabatha took a picture of the house at this point in the construction. (Exhibit 30, p. 8) 84. Tabatha was concerned that the basement had not been dug into the ground far enough and that the walls of the basement were too high. (TT p. 53) 85. A photograph of the Property shows that the 9 feet high basement walls were completely exposed from the ground. (Exhibit 30, p. 8) 86. Upon seeing how high the basement walls were, Tabatha became concerned that the front yard and driveway would be too steep. (TT p. 52, 53) 87. The Plaintiffs relayed their concerns to Adams and met with Adams at the property to discuss these concerns. (TT p. 53) During this meeting, Plaintiffs told Adams that they believed that the basement was set too high and it appeared to the Plaintiffs that their driveway would be too steep. (TT p. 51; 255-256; 286-288; Plaintiff's Ex. 30) 88. During this meeting, Adams assured the Plaintiffs that once the house was finished, the front yard and driveway would be fine. (TT p. 54) Adams further stated that sometimes you have to build up in the beginning, but as the house settles closer to finishing, it would grade out the way it's supposed to. (TT. p. 54-55) Adams said that in the end, the 12 Plaintiffs' front yard and driveway would be graded the same as they were on the neighboring Lot 15. (TT p. 55) 89. Adams specifically informed the Plaintiffs that the grading they desired was required under township and county codes. (TT p. 55, 256) 90. Similar assurances were made about the grading throughout construction. (TT p. 56) 91. Throughout construction, Adams repeatedly pointed to Lot 15 and assured the Plaintiffs that the grading of Lot 17 would be "like theirs" and would follow the grade required by the township and county codes. (TT p. 54-55; 58-59) 92. Even when the Plaintiffs questioned the filling in of dirt and rocks in front of the house and that a large hill was starting to take shape, Adams told the Plaintiffs that it was just temporary to get Adams' trucks up to the house. (TT p. 56-58; Plaintiffs' Ex. 30, p. 10) 93. Tabatha's mother, Carol Dougherty, inquired with Adams as to why the house was up so high and why the driveway was so steep. Adams again responded that the driveway was only temporary to get the trucks up to the house, and that the driveway would eventually be "serpentined down". (TT p. 232, 235) 94. Adams also informed Carol Dougherty that the driveway was like that because he was "told it had to be there" by the developer. (TT p. 232-234) 95. During a visit to the property during construction, Tabatha expressed to Adams her concern as to the steepness of the Property, stating "I was scared of the land, I was afraid of getting hurt, I was afraid my children would fall". (TT p. 58) 13 96. Tabatha met with Adams, Shover and Purvis again on January 19, 2006 to express her concerns about the appearance of the grading on Lot 17. She was, again, reassured that the grading of the driveway would not be steep once the house was finished. (TT p.52; 54) 97. Throughout construction, Tabatha relayed her continued concerns to Adams. At one point Adams joked that she could invest in some chains for her shoes. (TT p. 67) 98. During one such meeting with Adams, Tabatha expressed her dissatisfaction with the slope of the driveway to which Adams informed Tabatha, for the first time, that the slope of the driveway was due to township requirements. (TT p. 67) 99. Adams stated that he understood that Tabatha was upset, but that there was nothing Adams could do about the grading because of the Township's requirements. (TT p. 67) 100. Adams told Tabatha that the house could not have gone any further back on the lot because it was already situated at the setback limitation. (TT p. 68) 101. There is 66 feet from the tree line to the rear porch of the house. (TT p. 295; 303). The setback requirements are behind the treeline. Accordingly, the house could have been moved back at least 66 feet without causing a violation of the setback requirements or a violation of any prohibition imposed by the Subdivision Plan. 102. Adams admits that he was aware that the driveway was going to be "terribly steep." (TT p. 432) 103. Adams further admits that if the basement had been dug deeper, the driveway would be flatter. (TT p. 471) 104. Plaintiffs were not approached by Adams about the possibility of digging the basement deeper or reducing the size of the garage walls down from 9 feet to 8 feet. (TT p. 472) 14 105. Adams, himself, testified that he would not want a driveway as steep as what he gave the Plaintiffs. (TT p. 484) B. Issues with the basement 106. In addition to the issues the Plaintiff had about the driveway and the front yard, the Plaintiffs had concerns about a window hole in the basement as well as Adams' failure to seal the basement walls. (TT p. 53, 63) 107. At the request of Plaintiffs', Adams sealed the widow hole in the basement; however, Adams used only wood, not block or brick to close the hole. (TT p. 62; Plaintiffs' Ex. 30 photographs 14 and 15) 108. Plaintiffs also expressed concerns to Adams about the apparent lack of sealant on the basement walls and a window hole cut in the basement that was not a part of the plans. (TT p. 53) C. Post construction/Pre-Closing 109. During construction, Mario inquired with Adams about meeting with the township to discuss these matters, to which Adams replied that he was the point of contact with the township. (TT p. 258) 110. The Plaintiffs informed Adams that they wanted a personal meeting with the excavators before they performed the final grading on Lot 17. (TT p. 69-70) Notwithstanding their requests, the Plaintiffs discovered that the excavators had already performed the final grading of Lot 17 without first meeting with the Plaintiffs, as requested. (TT p. 69-70; Plaintiff s Ex. 30 photograph 24) 15 111. On June 26, 2006, prior to surrendering possession of the property to Plaintiffs, Adams presented the Plaintiffs with a bill of $325,763.44. This was $18,763.44 above the estimated cost of the house. (TT p. 87-89; Plaintiffs' Ex. 11) 112. Adams repeatedly assured Plaintiffs during construction that they were within their $307,000 construction allotment (TT p. 87-89) 113. Adams informed Plaintiffs that if they failed to pay the overages, they would not get keys to the house. (TT p. 90) 114. By that point in time, the Plaintiffs had nowhere else to live. (TT p. 90) V. Final Inspection/Closing 115. The Plaintiffs moved into the house on June 28, 2006. (TT p. 102) 116. On June 30, 2006, Plaintiffs conducted a walk through of the interior of the house along with Adams, Purvis and Linda Shover. Plaintiffs prepared a punch list of items not completed as of the date of this walk-trough (TT p. 91; Plaintiffs' Ex. 12 and Ex. 13). 117. Though they were unhappy with the slope of the front yard and driveway, Plaintiff's closed on the house on June 30, 2006 because they believed they did not have any other choice. (TT p. 67, 256) 118. Punch list items were to be completed by July 6, 2006. (TT p. 93; Plaintiffs' Ex. 12, 13) 119. Adams did not complete the punch list items by July 6, 2006 as promised. (TT p. 93) 120. Plaintiffs refinanced the construction loan at which time monies were escrowed for grading and seeding of the property. (TT p. 94; Plaintiffs' Ex. 15, 16) 16 121. Adams failed to compete the grading and seeding as promised by August 31, 2006. (TT p. 95) 122. At one point during this period, Plaintiffs informed Adams that the grading of the driveway was unacceptable. Adams responded that he had a Certificate of Occupancy and said "just put a pair of chains on your sneakers and good luck". (TT p. 97) 123. Adams was provided a key to Plaintiffs' residence in order to complete the punch list. (TT p. 98) 124. Despite repeated requests by Plaintiffs', Adams did not complete all of the punch list items, including: a) unfinished painting b) installation of downspouts, c) correction of the continued mud infiltration into the basement, d) exposed nails in the carpet, e) separation of stairs leading to the second floor, f) unsecured countertops, g) dishwasher cabinet not meeting the floor, h) unsealed wires and pipes on left side of the house, i) cracks in the walkway, tilting of the air conditioning unit, and j) rocky topsoil. (TT p. 98-99; 104-109; Plaintiffs' Ex. 30, photographs 59- 76) 125. Adams informed the Plaintiffs that he had lost his key to the house. (TT p. 99) 17 VI. Discovery of Adams' Fraudulent Misrepresentations 126. After closing, the Plaintiffs began to suspect that Adams had misrepresented various statements about the South Middleton Township code requirements. On September 1, 2006, the Plaintiffs met with South Middleton Township code enforcement officers, Russell Yinger and Timothy Stout. (TT p. 101; 258) 127. Yinger testified that subsequent to this meeting with Plaintiffs, Yinger and Stout researched the township code to determine "anything that we had missed and that could have helped the situation." (TT p. 167) 128. Yinger determined that the driveway "exceeds the slope leading off of the right- of-way" (TT p. 167; 192), thus violating land development ordinances. (TT p. 171) 129. Yinger admits that he passed the house because "I didn't know that ordinance existed, and I wasn't enforcing it at the time". (TT p. 171) 130. Yinger further admits that, as referenced in Plaintiff s Ex. 26, "in hindsight it seems many things could have been done to help prevent this steep driveway", including "the house could have been located differently on the lot ... maybe having the driveway - putting a garage in the basement of the home". (TT p. 168-169) 131. Yinger testified that reconstructing the garage under the house now, in order to meet code, would make the driveway steeper. (TT p. 170) 132. Yinger further testified that the township could possibly revoke an already issued Certificate of Occupancy but has not yet done so. (TT p. 193-194) 133. Pursuant to the plot plan, Yinger states that the house could have been moved back an additional 70 feet. (TT p. 198) 18 134. During the course of the September 1, 2006 meeting with the Township, it became clear to the Plaintiffs that this incredibly steep driveway was not "required" by the Township as Adams represented. 135. In light of this information from the Township, Plaintiffs arranged another meeting with Adams, Purvis, Shover and another one of the developers, Raymond E. Deihl, on September 11, 2006. (TT p. 111) 136. During the September 11, 2006 meeting the Plaintiffs expressed their dissatisfaction with the house and Lot 17. (TT p. 112) 137. During the September 1. 1, 2006 meeting, Plaintiffs again confronted Adams regarding his previous statement that the Township "required" the driveway be so steep. Adams apologized for not building the house as needed and indicated that he did not have the experience to build the house Plaintiffs required. (TT p. 114) 138. Adams contends that it was at this meeting that he first learned of Plaintiffs' problem with the driveway. (TT p. 464; 499) 139. Despite the numerous discussions between the parties identified above, Adams stated that the Plaintiffs never informed him of Tabatha's disability. (TT p. 112; 444; 463). VII. Additional Problems Suffered Since Plaintiffs Took Possession A. Mud in Basement 140. Due to grading issues, since taking possession of the property, Plaintiff s have experienced mud infiltration into their basement, under their basement door, anytime it rained. Post construction, Plaintiffs paid Rose Construction $2,000 to install a retaining wall to help alleviate this problem. (TT p. 63-64; 117-118; Plaintiffs' Ex. 19 and Ex. 30 photographs 18-23) 19 141. Adams admits that Plaintiffs' brought to his attention that mud was infiltrating the Plaintiffs' basement. (TT p. 450) 142. Adams returned to the property and attempted to "seal things up and regrade the dirt little bit" and suggested they wait until the property was seeded to take further action. (TT p. 450) 143. To date, water continues to infiltrate the basement and garage through the walls and floor. (TT p. 78; 81, Plaintiff's Ex. 30 photographs 40, 41, 48, 49) B. Faulty Roofing and Gutters 144. Post construction and after taking possession of the house, Plaintiffs' were required to install gutters on the front of the house due to a leaking roof. (TT p. 75-76; 84; Plaintiff's Ex. 30 photographs 36, 37). Repair work was performed by Slate Roofing at the cost of $965.33 (TT p. 123; Plaintiffs' Ex. 23) 145. Also post construction and after taking possession of the house, Plaintiffs' noticed that both the siding and downspout were coming off of the house. Plaintiffs' had both situations corrected. (TT p. 78; Plaintiff's Ex. 30 photographs 39-41) 146. Due to water infiltration, Plaintiffs were required to hire a contractor to replace wet drywall in the garage. (TT p.83-85; Plaintiff's Ex. 30 photographs 53- 58) 147. Plaintiffs contracted with Russell Silverman for drywall repair caused by water damage. (TT p. 152-153; Plaintiffs' Ex,. 28 and Ex. 29) 148. The Plaintiffs have already had the drywall damage due to the leaking roof fixed once, but because the roof continues to leak, it will have to be repaired again. (TT p. 85) 20 C. Improper Drywalling 149. Mr. Silverman has been a plasterer/drywaller for thirty (30) years. 150. When Mr. Silverman removed the damaged drywall, he discovered that there was no insulation underneath the drywall between the garage and the house. (TT p. 154) 151. Instead, Mr. Silverman discovered that Adams had inserted scrap pieces of drywall into the wall. (TT p. 155) 152. Based on Silverman's 30 years of experience, scrap drywall should not have been placed in the hollow spaces of the wall. (TT p.152, 155) To the contrary, insulation should have been placed under the drywall to insulate the house from the garage. (TT p. 154-55) 153. Further, Mr. Silverman testified that he replaced the drywall installed in the garage by Adams with a thicker drywall with an appropriate fire-rating for a garage. (TT p. 158- 59) 154. Plaintiffs' contracted with Silverman to remove the wet sheetrock on the ceiling and walls adjoining the house, install insulation and utilize 5/8" sheetrock which has a higher fire rating than the drywall used by Adams. (TT p. 157-158; Plaintiffs; Ex, 29) 155. Silverman's remediation efforts cost the Plaintiffs $4850.00. (Plaintiffs Ex. 28-29) VIII. Additional Necessary Remediation/Improvement Efforts A. Efforts to Remediate the Slope of the Driveway and Front Yard 156. Additionally, post construction, at the recommendation of Adams, Plaintiffs' had cement terraces put onto the property in order to address the grading issue so that Tabatha may better able to maintain the property and for the safety of the Plaintiffs' children. (TT p. 65; 70- 71; 259; Plaintiffs' Ex. 30, photographs 26-28) 21 157. Plaintiffs paid Fry's Landscaping $15,651.86 to install these terraces. (TT p. 116- 117; Plaintiff's Ex. 18) 158. Even with the installation of the cement terraces, Tabatha is unable to maintain the property and is required to hire a contractor to mow the grass, at the cost of approximately $55.00 - $65.00 each occurrence. (TT p. 71; 120; Plaintiffs' Ex. 21) 159. In addition to yard maintenance, Plaintiffs are required to hire a contractor for snow removal from the driveway during winter months. This work is performed by Pine Tree Lawn Care. (TT p. 122; Plaintiff s Ex. 22) 160. In the wintertime, the Plaintiffs often must park their cars at the bottom of the driveway rather than in the driveway or garage so as to avoid being unable to get them down the driveway in the snow. (TT p. 74-75) However, many times they are unable to walk up and down the driveway to get to the cars. (TT p. 74) 161. The Plaintiffs have investigated possible ways to remedy their issues with the driveway to no avail. (TT. p. 72) 162. In investigating a way to alleviate the ice build up on the driveway during winter months, Plaintiffs learned that they can not utilize an electrically heated driveway as that would require the driveway to be concrete instead of asphalt. A concrete driveway is not an option due to the extreme slope. (TT p. 72) 163. Plaintiffs' are unable to navigate the driveway in winter months (TT p. 74-75; Plaintiff's Ex. 30 photographs 32 - 35) 22 B. Miscellaneous Improvements 164. After taking possession of the house, Plaintiff's learned that there was a non- grounded wire to their fuel line. Plaintiffs' paid UGI $121.00 to ground this wire. (TT p. 119- 120; Plaintiff's Ex. 20) 165. Due to code requirements and safety concerns, Plaintiffs hired Gerald Brown, a handyman, to install a railing on the porch. (TT p. 122; 124; Plaintiff's Ex. 22 and Ex. 25) This cost the Plaintiffs $448.49 (Plaintiffs' Ex. 25) 166. At the recommendation of Adams, a security system was installed in the house, post construction, at the cost of $2,000. (TT p. 123, Plaintiffs' Ex. 24) IX. Code Violations and Evidence of Improper Construction A. The Slope of the Front Yard and Driveway 167. Gregory Rogalski, a court approved expert engineer and codes officer, testified that upon review of the South Middletown Township approved subdivision plans relating to this property, it was envisioned that a split-level or bi-level home with a garage located in the lower floor facing the front of the house be constructed. (TT p. 326-328; Plaintiff's Ex. 27) 168. The driveway, as constructed, is in violation of South Middletown Township Zoning Ordinance Section 1807, requiring that a driveway not exceed a slope of 7% within 12 feet of the street line. Plaintiffs' driveway measures an 18% slope. (TT p. 334; Plaintiffs Ex. 27) 169. Additionally, South Middletown Township Zoning Ordinance Section 1403 was violated as no building plans were submitted addressing restrictions and requirements associated 23 with work within the "steep slope/precautionary slope zone" where Plaintiffs' driveway and front of house fell (TT p. 330-331; 333; Plaintiffs' Ex. 27). 170. Adams admits to having failed to familiarize himself with the South Middletown Township steep slope ordinance. (TT p. 428; 475) 171. Construction of a flat first floor home within a "precautionary slope zone" usually requires a significant amount of earth moving and excavation, resulting in the potential for soil erosion. (TT p. 329) 172. The subdivision plan offered guidance with regard to finished floor elevations, and the 562 elevation as shown on the subdivision plan was lower than where the garage elevation was on this property, at 564.72. (TT p. 332; 335; Plaintiffs' Ex. 27) Adams failed to follow the elevations suggested by the plan. 173. It is the opinion Gregory Rogalski, court approved expert engineer and codes officer, that the only two options to remediate the sloping/grading issue are to: (1) lower the garage or raise the street; or (2) shift the house further back on the lot at the same elevation. In Mr. Rogalski's expert opinion either option is completely impractical. (TT. p. 336) 174. Rogalski further states that it was possible to construct the property on Lot 17 in compliance with the zoning ordinances and building codes. (TT p. 336) 175. The Codes Enforcement officer from the Township acknowledged that the slope of the driveway and front yard did not meet the requirements of the Township's ordinances. (TT p. 167, 171, 192) 24 B. Failure to Install Anchor Straps 176. During Rogalski's field observation of the property, he found that anchor straps were missing from the house. These straps are used as a connection between the framing of the house and the foundation. Such absence of straps, in addition to being in violation of International Residential Code Section R403.1.5, exposes the house to the possibility of actually lifting up during a wind storm. (TT p. 338-341; 349; Plaintiff, s Ex. 27) 177. With regard to fixing the anchor straps, Rogalski states "It would be quite a challenge to not only provide for that code requirement but then also restore the area to the prefixed condition." (TT p. 341) C. Violations Contributing to Water in the Basement 178. Mr. Rogalski's field observation also identified significant cracks, with staining, to the foundation wall, indicating groundwater leakage into the basement. (TT p. 344; Plaintiffs' Ex. 27) 179. These cracks in the house's foundation are easily visible in the basement of the house. (Plaintiffs' Ex. 30; photographs 47-50) 180. Adams admits that a homeowner could get water seepage through the cracks in the foundation and that the basement may need to be sealed on the inside to prevent this from happening. (TT p. 453-454; Plaintiffs' Ex. 30 photograph 47) 181. It is Rogalski's expert opinion that the walls on the first floor above the cracked foundation have moved as is evidenced by the separation of the countertops, cabinets, drywall cracking and flooring separation. (TT p. 346-347; Plaintiffs' Ex. 27; Plaintiffs Ex. 30, photographs 59-68) 25 182. Adams admits that the cracks upstairs, above the location of the cracks in the foundation, are an indication that "something shifted or moved before we got the trusses on" (TT p. 488) 183. Mr. Rogalski's field inspection identified yet another code violation, Section 401.3, in that the exterior grade was sloping back towards the house as opposed to away from the house, permitting water to travel down the foundation wall and migrate into the basement through cracks, as was observed in Plaintiffs' property. (TT p. 348; 350; Plaintiffs' Ex. 27) D. Miscellaneous Violations & Issues with the House 184. Mr. Rogalski's field observation also revealed the insulation in the home was improperly installed, with the insulation facing out towards the open basement, which, in the event of fire, would cause the fire to spread more rapidly. (TT p. 342; 350, Plaintiffs' Ex. 27) 185. Adams testified that he suggested to the Plaintiffs that the insulation be installed in that manner. (TT p. 453; Plaintiffs' Ex. 30, photograph 46) 186. Also noted during the field observation was the violation of International Residential Code Section R319.1.3, the use of non-pressure treated wood in direct contact with concrete, permitting moisture from the concrete to decay the wood, causing a structural concern or devalue of the home. (TT p. 344; 350; Plaintiffs' Ex. 27) 187. The stone veneer on the front of the house is separating from the house. (Plaintiffs' Ex. 30, photo 74) 188. Adams admits that with regard to the sinking of the front sideway and the stone facing falling away from the front of Plaintiffs' property, that rebar was not pinned into the foundation as is typically performed. (TT p. 459) 26 189. Mr. Rogalski concludes his Building Code Evaluation Report as follows: "Based on the conditions observed, the general condition of construction can be rated as poor as compared to homes ol? similar age." 190. Due to ongoing problems due to the faulty construction of the house, Plaintiffs have concluded that they did not get the house they paid for and the Defendants agreed to build. Accordingly, the Plaintiffs desire to sell their home back to the Defendants, permitting Plaintiffs' to relocate. (TT p. 125-126). Procedural History 191. On June 21, 2007, Plaintiffs initiated a lawsuit against Adams & Bream seeking: (1) Rescission of the Agreement of Sale; (2) Breach of Contract for Damages; (3) Negligent Misrepresentation; (4) Promissory Estoppel; (5) Breach of Warranties; (6) Fraud; and (7) violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law at Cumberland County Docket No. 07-3731. 192. During discovery, the Plaintiffs discovered that Adams & Bream had taken the position that Adams & Bream was not the builder with which the Plaintiffs contracted. Upon discovering this, on July 22, 2008, Plaintiffs initiated a similar action against Adams, individually, and against Jack Adams Builders at Cumberland County Docket No. 08-4393. 193. By Order dated July 28, 2009, the Court consolidated Docket Nos. 07-3731 and 08-4393 for purposes of discovery and trial at Docket No. 08-4393. 194. Prior to trial, the Plaintiff stipulated that its claims would be limited to Rescission and Violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law and an appropriate Order was entered pursuant thereto. 27 195. A three day bench trial was held beginning on June 21, 2010 and ending June 23, 2010. 196. At the conclusion of trial, the Court directed the parties to submit proposed findings of fact and conclusions of law within 20 days of the parties' receipt of the transcript of the trial proceedings. The parties' submissions were due on or before August 30, 2010. PLAINTIFFS' PROPOSED CONCLUSIONS OF LAW 1. Plaintiffs' Request for Rescission 197. Rescission is an equitable remedy. Equity jurisdiction permits a court to fashion a remedy based on upon considerations of fairness, justness, and right dealing in a particular situation as contrasted with strictly formulated rules of common law. Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 fn.2 (Pa. 1990). The court in an equity matter is expected to consider all circumstances and interests of the affected parties and is given broad discretion to effectuate a remedy reflecting an equitable balancing of those considerations. M 198. The purpose of the equitable doctrine of rescission is to return the parties as nearly as possible to their original positions with regard to the subject matter of the contract. Lackner v. Glosser, 892 A.2d 21, 31 fn.7 (Pa. Super. 2006); Keenheel v. Com., Pa. Securities Com'n, 579 A.2d 1358, 1361 (Pa. Commw. 1990). 199. The law of contracts seeks to protect the interests of a promisee. Depending on the circumstances, the law may protect the promisee's expectations, provide for restitution of benefits conferred, or compensate for the promisee's reliance on the promise of the promisor. 28 See Sullivan v. O'Connor, 296 N.E.2d 183 (Mass. 1973) see also Restatement (Second) of Contracts at §326. 200. Rescission amounts to the unmaking of a contract and is not merely a termination of the rights and obligations of the parties towards each other, but is an abrogation of all rights and responsibilities of the parties towards each other from the inception of the contract. Metropolitan Property and Liability Insurance Co. v. Commonwealth of Pennsylvania, 509 A.2d 1346, 1348 (Pa. Commw. 1986) aff d at 535 A.2d 588 (Pa. 1987) Its purpose is to return the parties as nearly as possible to their original positions. Baker v. Cambridge Chase, Inc. 725 A.2d 757, 766 (Pa. Super. 1999). 201. The unique character of each parcel of real property often makes agreements for the sale and purchase of real estate subject to equitable remedies. See Baker v. Cambridge Chase, Inc. 725 A.2d 757 (Pa. Super. 1999); Roberts v. Estate of Barbagallo, 531 A.2d 1125 (Pa. Super. 1987). A. Rescission is appropriate against Jack Adams Builders, LLC because Jack Adams Builders, LLC breached its contract with the Plaintiffs. 202. Rescission is appropriate when the complaining party has suffered a breach that affects the very essence of the contract and serves to defeat the object of the parties. Castle v. Cohen, 676 F. Supp. 620, 627 (E.D. Pa. 1987) aff d at 840 F.2d 173 (P Cir. 1988). 203. Rescission may be an appropriate remedy where there is a failure of consideration or breach of the contract. Knorr v. Knorr, 75 Pa. D&C 4" 353, 357 (Colum. Cty. 2005) 204. Where parties have entered into a written contract, the court may not relieve one of them of his contractual obligations on the ground that its enforcement works a hardship. Com. Dept. of Public Welfare Central Region v. Dauphin County Social Services for Children and 29 Youth, 495 A.2d 214, 216 (Pa. Commw. 1985) This is true no matter how innocent the non- performing party may be. Selden v. Metropolitan Life Ins. Co., 47 A.2d 687, 688 (Pa. 1946) overruled in part by Thompson v. Equitable Life Assur. Soc. of U.S., 290 A.2d 422 (Pa. 1972) 205. A court may grant rescission when there are allegations of failure of consideration, fraud, and mistake. See New-Com Corp. v. Estate of James Gaffney, 72 B.R. 90, 94 (Bankr. W.D. Pa. 1987) citing Windle v. Crescent Pipe Line Co., 40 A. 310 (Pa. 1898); Hays v. Hays, 36 A. 311 (Pa. 1887) 206. The rationale permitting a rescission is that an essential objective of the contract has not been achieved. See Nolan v. Sam Fox Publishing Co., Inc. 499 F.2d 1394, 1399 (2nd Cir. 1974). 207. In the present case, the Plaintiffs had a contract with Jack Adams Builders pursuant to which Jack Adams Builders was to construct their house. 208. As between a builder/seller of a house and the buyer, the builder/seller bears the risk of ensuring that a home which he has built will be functional and habitable in accordance with contemporary community standards. Elderkin v. Gaster, 288 A.2d 771, 777 (Pa. 1972) citing Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 3 S.Ct. 537 (1884). 209. The buyer justifiably relies on the skill of the builder because the builder holds himself out as having the necessary expertise with which to produce an adequate dwelling and has the better opportunity to examine the suitability of the home site and to determine what measures should be taken to provide a house fit for habitation. Elderkin v. Gaster, 288 A.2d 771, 777 (Pa. 1972) citing Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 3 S.Ct. 537 (1884). 30 210. In Pennsylvania, a builder holds himself out, not only as a construction expert, but as one qualified to know what sorts of lots are suitable for the types of homes to be constructed. Elderkin v. Gaster, 288 A.2d 771, 777 (Pa. 1972). 211. In the present case, Jack Adams Builders failed to build the Plaintiffs' house in compliance with contemporary community standards. 212. Jack Adams Builders breached its contractual obligations in the following ways, among others: a. Failing to select an appropriate site for the house on Lot 17; b. Failing to take such steps as were necessary to provide for a reasonably sloped front yard and driveway leading up to the house, including but not limited to digging a deeper basement and/or reducing the height of the basement walls; C. Failing to familiarize himself with, and comply with, the South Middleton "Township grading requirements, including the 7% slope requirement and the steep slope ordinance; d. Failing to halt construction and take reasonable steps to correct the steepness of the driveway and front yard when it came to his attention that the driveway would be "terribly steep" (TT p. 432) during construction; Failing to properly construct the basement to avoid leakage and cracked walls; f. Failing to complete the punch-list items within a reasonable amount of time; g. Failing to properly install gutters and roofing on the house; h. Failing to insulate the walls between the garage and the rest of the house and failing to use drywall with an appropriate fire-rating for a garage; Failing to install anchor straps anchoring the structure to its foundation; Failing to appropriately install the insulation to as to prevent the spread of fire; 31 k. Failing to build the house for the price agreed upon by the parties and refusing to deliver possession unless the Plaintiffs paid an additional $18,7634.44; and 1. Failing to provide a house of reasonable workmanship and value. 213. The breaches described above affect the very essence of the parties' contract with one-another such that rescission is appropriate. B. Rescission is appropriate because the Plaintiffs were induced to enter into and consummate the contract by fraud. 214. A party who can prove the elements of common law fraud may have its agreement rescinded. Knepp v. Nationwide Ins. Co, 471 A.2d 1257, 1260 (Pa. Super. 1984): Adelman v. CGSScientific Corp., 332 F. Supp. 137,146 (E.D. Pa. 1971). 215. A party is permitted to rescind a contract: (1) if the party seeking rescission was induced to enter into the contract by the fraud of the other party, provided the fraud was a material part of the contract, or (2) the party seeking rescission relied upon a material misrepresentation by the other party, even if the misrepresenting party was ignorant as to the true or falsity of the misrepresentation. Pennsylvania Suggested Standard Jury Instructions, Vol. 2, §15.29,- Third Edition with 2009 Supplement. 216. In Pennsylvania, to prove fraud, a party must demonstrate the following: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) that the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994); Hart v. Arnold, 884 A.2d 316, 339 fn. 7 (Pa. Super. 2005); Eigen v. Textron Lycoming 32 Reciprocating Engine Division, 874 A.2d 1179, 1185 (Pa. Super. 2005); Banks v. Jerome Taylor & Associates, 700 A.2d 1329, 1333 (Pa. Super. 1997). 217. A misrepresentation is material if the transaction would not have been consummated but for the misrepresentation. Skurnowicz v. Lucci, 798 A.2d 788, 793 citing Sewak v. Lockhart, 699 A.2d 755, 760 (Pa Super. 1997). 1. Misrepresentations as to Home Building Experience 218. Adams' assurances that he had 20+ years' experience in constructing houses were false and/or misleading. To the contrary, the Plaintiffs house was the first house Adams had ever built from beginning to end on his own. 219. Adams' assurances as to his home building experience were material to the transaction at hand as the Plaintiffs wanted an experienced contractor. 220. Adams' assurances as to his experience were made falsely with knowledge of their falsity. 221. The Plaintiff's relied upon the misrepresentations as is evidenced by the fact that the agreed to contract with Adams. 222. The Plaintiffs' reliance was justifiable under the circumstances. 223. Adams' inexperience in residential construction proximately caused the Plaintiffs' injuries. 2. Misrepresentations regarding the slope of the driveway and front yard 224. In order to induce the Plaintiffs to close on the Property, Adams represented that the steep slope was a township requirement that he was powerless to do anything about. These statements were false. 33 225. Adams assurances that the final grading of the property would result in a sloping that would satisfy the Plaintiffs were false as Adams knew that the front yard and driveway would be incredibly steep. 226. Adams' assurances that the apparent steepness of the property during construction was only temporary to get the trucks to the house were false 227. Adams' assurances as to the final grading were material to the transaction at hand as the Plaintiffs made it very clear that the slope of the property could not be steep. 228. The Plaintiffs had a right to a reasonable amount of steepness with respect to the property. 229. Adams' assurances as to the final grading were made falsely with knowledge of their falsity. 230. The Plaintiff's relied upon the misrepresentations of Adams as is evidenced by their consummation of the purchase of the house. 231. The Plaintiffs' reliance was justifiable under the circumstances. 232. The incredibly steep slope of the Property is the proximate cause of the Plaintiffs' injuries. 233. Adams' statements about the Township's requirements were material to the transaction at hand. 234. The representations were relied upon by the Plaintiffs as they induced the Plaintiffs into closing on the Property. 34 235. As the Plaintiffs were depending on Adams to build the house and to make sure that the house was compliant with the 'Township's requirements, Plaintiffs' reliance on the misrepresentations of the Defendants was justifiable and the Plaintiffs were injured thereby. C. Manner of Entering an Award of Rescission 236. A. determination of the scope of authority of a modern equity court, while adhering to the restrictions of equity jurisdiction delineated by the legislature, must be guided by the basic principles of equity jurisprudence. Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 (Pa. 1990). The historic distinction between a court of law and a court of equity is the ability of the latter tribunal to fashion a remedy based upon considerations of fairness, justness, and right dealing in a particular situation, as contrasted with strictly formulated rules of common law. Id.at fn.2. The chancellor in an equity matter is expected to consider all circumstances and interests for affected parties and is given broad discretion to effectuate a remedy reflecting an equitable balancing of those considerations. Id. 237. In the present case, the Plaintiffs seek an Order directing Jack Adams Builders, LLC to return the purchase price paid by the Plaintiffs to the Plaintiffs in exchange for conveying the property to Jack Adams Builders, LLC. 238. While it is anticipated that Adams will take the position that he did not own the underlying real estate, Adams' testimony established that Jack Adams Builders, LLC had an equitable ownership interest in the underlying real estate by virtue of his agreement with Residential Homes Company. 35 239. Further, the equitable ownership interest in the property is evidenced by the fact that the price of the real estate was included in Adams' original offer to build the house for $307,000. (TT p. 35) 240. Plaintiffs request that the Court enter judgment against Jack Adams Builders, LLC in the full amount of the purchase price of the house. 241. Ultimately, the full purchase price of the house was $325,763.44. 242. In addition to granting equitable relief, in the nature of rescission, the trial court is also empowered to grant the plaintiffs restitution of appropriate losses. Restitution, unlike damages, is a remedy not inconsistent with rescission. Metz v. Quaker Highlands, Inc., 714 A.2d 447, 449 (Pa. Super. 1998) 243. Under Pennsylvania law, Plaintiffs are entitled to restitution of amounts expended in reliance on the contract. See Baker v. Cambridge Chase, Inc., 725 A.2d 757 (Pa. Super. 19999) (holding that restitution often goes with rescission in order to return the parties as nearly as possible to their original positions). 244. In the present case, the Plaintiffs spent the following amounts attempting to improve the property and remedy the Defendants' faulty work: a. Plaintiffs paid Rose Construction $2,000 to install a retaining wall to help alleviate the mud infiltration in the basement. (Plaintiffs' Ex. 19) b. Repair work to the roofing and gutters was performed by Slate Roofing at the cost of $965.33 (Plaintiffs' Ex. 23); C. Remediation of the improper drywalling and insulation cost the Plaintiffs $4850.00. (Plaintiffs Ex. 28-29) d. Plaintiffs paid Fry's Landscaping $15,651.86 to install the terraces in the front yard. (Plaintiff's Ex. 18) 36 Plaintiffs' paid UGI $121.00 to ground the fuel line wire. (Plaintiff's Ex. 20) The installation of the railing on the front porch cost the Plaintiffs $448.49 (Plaintiffs' Ex. 25); and g. The Plaintiffs installed a security system in the house, post construction, at the cost of $2,000. (Plaintiffs' Ex. 24). 245. In order for the Plaintiffs to be made whole, the cost of these improvements totaling 26,036.68 must be added to the 325,763.44 purchase price of the house, for a total judgment of $351,800.12. 246. Upon payment of the Judgment, the Plaintiffs will deed the property to Jack Adams Builder, LLC. 247. In the event Jack Adams Builders, LLC is unable to pay the full amount of the judgment against it, the property can be sold and the deficiency amount assessed against Jack Adams Builders., LLC. D. Basis for holding Jack Adams, the individual, jointly liable on Plaintiffs' Rescission Claim 248. Under the participation theory, officers of a corporation may be held liable for the own wrongful actions even where piercing the corporate veil might not other wise be an appropriate remedy. See Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 89-90 (Pa. 1983) where the court reasoned as follows: Appellants seek to held [individual corporate officers] liable on the theory that they personally participated in the alleged tortious acts committed on behalf of the corporations. There is a distinction between liability for individual participation in a wrongful act and an individual's responsibly for any liability creating act performed behind the veil of a sham corporation. Where the court pierces the corporate veil, the owner is liable because the corporation is not a bona fide independent entity; there, its acts are truly his. Under the participation theory, the court imposes 37 liability on the individual as an actor rather than as an owner. Such liability is not predicated on a finding that the corporation is a sham and a mere alter ego of the individual corporate officer. Instead liability attaches where the record establishes the individual's participation in the tortious activity. Id. see also Voest-Alpine Truing USA Corp. v. Vantage Steel Corp, 919 F.2d 206, 217 (3`d Cir. 1990) (Liability attaches to a corporate officer who participates in the wrongful acts of the corporation"); Loeffer v. McShane, 539 A.2d 876, 878 (Pa. Super. 1988) (Owners and manages of corporation may be held financially accountable for the wrongful injury producing conduct.) 249. In the present case, Jack Adams, individually, participated in the fraudulent actions which lead to the Plaintiffs' damages. 250. Adams personally misrepresented the corporate structure of Jack Adams Builders, LLC and his and its relationship to Adams & Bream. Adams further misrepresented his building experience. 251. When Plaintiffs protested the apparent steepness of the property during construction, Adams, himself, assured the Plaintiffs that the apparent steepness during construction was only temporary and that the property would eventually grade out gradually. Adams admitted that he knew the driveway would be "terribly steep" during construction. (TT p. 432) 252. In order to induce the Plaintiffs to close on the Property, Adams represented that the steep slope was a township requirement that he was powerless to do anything about. These statements were false as the Township had no such requirement. To the contrary, an 18% grade is a violation of the Township's grading requirements. In fact, the Township's requirements 38 mandate that the grading contain a slope of no more than 7%, whereas the Plaintiffs' property is graded at 18%. 253. Adams' assurances that the final grading of the property would result in a slope that would satisfy the Plaintiffs were false as Adams knew that the front yard and driveway would be incredibly steep. 254. Adams' assurances that the apparent steepness of the property during construction was only temporary to get the trucks to the house were false 255. These facts are sufficient to warrant entry of Judgment against Jack Adams jointly with the other defendants in this action. E. Basis for holding Adams & Bream Builders, LLC jointly liable on the Plaintiffs' Rescission Claims 256. As a member of Adams & Bream Builders, LLC, Adams had apparent authority to enter into contracts on behalf of the Limited Liability Company. 257. Apparent authority is the "power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other's manifestations to third persons." In re McGlynn, 974 A.2d 425, 534, fn.9 (Pa. Commw. 2009) citing Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093, 1096 (Pa.Cmwlth.2004) (quoting Restatement (Second) ofAgency § 8 (1958)). It exists when a principal, by words or conduct, leads people with whom the alleged agent deals to believe the principal has granted the agent authority he or she purports to exercise. Id. "Apparent authority may result when a principal permits an agent to occupy a position which, `according to the ordinary experience and habits of mankind, it is usual for that occupant to have authority of a 39 particular kind.'" Id. (quoting E. Girard Sav. & Loan Assn v. Houlihan, 373 Pa. 578, 580, 97 A.2d 23, 24 (1953)). 258. At various times throughout construction, Adams represented that the Plaintiffs had contracted with Adams & Bream, LLC. 259. The Specifications proposed by Adams were proposed on Adams & Bream letterhead. These specifications were specifically incorporated into the Agreement for the Sale of New Construction. 260. The Agreement for Sale of New Construction did not otherwise identify the Builder/Seller in this transaction. 261. Adams & Bream gave Jack Adams authority to enter into contracts and to use Adams & Bream letterhead. 262. These facts are sufficient to warrant entry of Judgment against Adams & Bream Builders, LLC jointly with the other defendants in this action. II. Defendants are in violation of the Pennsylvania Unfair Trade Practice and Consumer Protection Law. 263. The Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") prohibits twenty-one (21) different types of "unfair or deceptive practices." 264. The UTPCPL is applicable to the sale of residential real estate. Hall v. Semancik et al., 58 Cumb. 173 (Cumb. 2009) citing Zisholtz v. Anthony Charles Home, Inc., 226 B.R. 824 (E.D. Pa. 1998) 265. Section 201-2(4)(xxi) of the UTPCPL prohibits a defendant from "[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of 40 41 misunderstanding." 73 P.S. §201-2(4)(xxi). This particular provision of the UTPCPL is commonly referred to as the "catch-all provision." 266. Adams' activities did, in fact, create confusion and misunderstanding on the part of the Plaintiffs. 267. Adams' purpose in making said representations was to create confusion and misunderstanding. 268. This confusion and misunderstanding induced the Plaintiffs to contract with and proceed with closing on the Property and thus resulted in injury proximately caused by the Plaintiffs' reliance thereon. 269. Treble damages and attorneys' fees are appropriate pursuant to §201-9.2(a) of the UTPCPL. Any violation of the UTPCPL empowers a trial courtjudge to consider the remedies provided thereunder. Neil v. Bavarian Motors, Inc., 882 A.2d 1022 (Pa. Super. 2005) appeal denied at 907 A,2d 1103 (Pa. 2007). 270. The amount of restitution required to put the Plaintiffs back in their previous position is the correct amount to use as damages under the UTPCPL where the breach results from the Defendants' fraud. Metz v. Quaker Highlands, Inc., 714 A.2d 447, 449 (Pa. Super. 1998) 271. Once a purchaser proves that material facts were misrepresented by a vendor, the trial court may award treble damages, even without a finding that the misrepresentation was reckless. Skurnowicz v. Lucci, 798 A.2d 788, 796 (Pa. Super. 2002). 272. The Act authorizes the trial judge to grant successful litigants an award for additional damages, reasonable attorneys' fees and costs. Id. 41 t 273. The foregoing facts warrant the imposition of treble damages, based on the restitution amount ($26,036.68), in the total amount of $78,110.04 ($26,036.68 x 3) against the Defendants, jointly and severally. 274. In addition, the foregoing facts warrant the imposition of attorney's fees, the total amount of which is to be determined in a separate hearing prior to entry of judgment. Respectfully submitted, METTE, EVANS & WOODSIDE By: 6?6WJ'X- k- Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs Date: August 30, 2010 42 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: E. Ralph Godfrey, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Attorneys for all Defendants METTE, EVANS & WOODSIDE By: -4.4,,- _ Ronald L. Finck, Esquire Sup. Court I.D. No. 89985 3401 North Front Street P. O. BOX 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Date: August 30, 2010 MARIO UMBELINA AND IN THE COURT OF COMMON PLEAS OF TABATHA SANTORE-UMBELINA, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. c- N C) JACK ADAMS, INDIVIDUALLY AND - JACK ADAMS BUILDERS, LLC, and -c < ; - - ADAMS & BREAM BUILDERS, LLC, „?- C ) arn DEFENDANTS 08-4393 CIVIL TERM - w ° IN RE: ADJUDICATION ORDER OF COURT AND NOW, this gl-? day of December, 2010, following a bench trial held over the course of three days, IT IS ORDERED AND DIRECTED as follows: (1) A verdict is entered in favor of Jack Adams, individually, and Adams & Bream Builders, LLC, as to all claims in that they were not parties to the contract at issue; (2) The court finds that plaintiffs failed to meet their burden of proof to establish that they reasonably relied upon any material misrepresentations of defendant Jack Adams Builders, LLC and, consequently, a verdict is entered in favor of Jack Adams Builders, LLC with respect to plaintiffs request for a rescission of the contract; (3) Plaintiffs are awarded the sum of $26,036.68 as damages from defendant Jack Adams Builders, LLC for improvements plaintiffs made to the property to remedy defendant's faulty work; I t 08-4393 CIVIL TERM (4) A verdict is entered in favor of Jack Adams Builders, LLC with respect to plaintiffs' claim under the Unfair Trade Practices and Consumer Protection Law. (5) Plaintiffs are awarded costs of suit; and (6) No other relief is granted to either side. ?ald L. Finch, Esquire For Plaintiffs ?alph Godfrey, Esquire For Defendants saa 1 a. 3 / r v By the Court, /ZAlbe . Maslan , J. -2- ! t MARIO UMBELINA AND IN THE COURT OF COMMON PLEAS OF TABATHA SANTORE-UMBELINA, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. JACK ADAMS, INDIVIDUALLY AND JACK ADAMS BUILDERS, LLC, and ADAMS & BREAM BUILDERS, LLC, DEFENDANTS 08-4393 CIVIL TERM IN RE: ADJUDICATION OPINION AND ORDER OF COURT Masland, J., December 2, 2010:-- In this difficult case arising out of the construction of a home, the homeowners claimed that the contractor made fraudulent misrepresentations regarding the quality and character of the home. Following a pre-trial conference, plaintiffs elected to proceed solely with the equitable cause of action for rescission and the cause of action pursuant to the Unfair Trade Practices and Consumer Protection Law. All other causes of action were dismissed with prejudice. Findings of Fact 1. The parties (1) Plaintiffs, Mario Umbelina and Tabatha Santore-Umbelina, are adult individuals and husband and wife residing at 415 Woodlawn Lane, Carlisle, PA 17015, which residence is the subject matter of this lawsuit.' ` Notes of Testimony, 8, Trial, June 21-23, 2010 hereinafter N.T. t t 08-4393 CIVIL TERM (2) Defendant, Albert E. Adams, III, ("Adams") resides at 3 Arbor Drive, Boiling Springs, PA 17007.2 (3) Jack Adams is the owner and sole member of defendant Jack Adams Builders, LLC, ("Jack Adams Builders") which has a registered address at 301 East Springville Road, Boiling Springs, PA 17007.3 (4) Defendant, Adams & Bream Builders, LLC, ("Adams & Bream") is a limited liability company with a registered address at 115 Stable Run, Zelienople, PA 16063 and a business address at 3 Arbor Drive, Boiling Springs, PA 17007. (5) Adams and his friend, Sid Bream are the sole members of Adams & Bream, which built eight homes during its four to five year existence.4 (6) Adams has been in the building trade since 1985, having worked for eleven years for McCoy Brother's, Inc., a general contractor, and working as a sole proprietor doing remolding jobs prior to forming Adams & Bream.5 (7) Adams established Jack Adams Builders during the existence of Adams & Bream, with the Umbelina house being the first new home constructed by Jack Adams Builders.6 2 N.T. 417. 3 N.T. 417, 419. 4 N.T. 418. 5 N.T. 418. 6 N.T. 418. -2- I 08-4393 CIVIL TERM II. Procedural History (8) On June 21, 2007, plaintiffs initiated a lawsuit against Adams & Bream seeking, inter alia, rescission of the agreement of sale and a finding of violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (cite) ("UTPCPL") at Cumberland County Docket Number 07-3731. (9) Upon discovering that Adams & Bream were asserting it did not build the residence in question, plaintiffs initiated a similar action on July 22, 2008, against Adams, individually, and against Jack Adams Builders at Cumberland County Docket Number 08-4393. (10) By order dated July 28, 2009, the court consolidated the two dockets for the purposes of discovery and trial at Docket Number 08-4393. (11) Prior to trial, the plaintiffs stipulated that their claims would be limited to rescission and violations of the UTPCPL. (12) A three day bench trial, that included an observational visit to the home, was held beginning on June 21, 2010 and ending June 23, 2010. (13) At the conclusion of the trial, the court directed the parties to submit proposed findings of fact and conclusions of law which were received on August 30, 2010. III. Negotiation of the Agreement (14) During the spring of 2005 plaintiffs began a search for a lot on which to build a house.' N.T. 14. -3- R ? 08-4393 CIVIL TERM (15) Mrs. Umbelina suffers from chronic knee pain in both knees, and had two experimental knee surgeries performed by the United States Army.a (16) Plaintiffs' desired to build a home that would accommodate Mrs. Umbelina's limited mobility because Mr. Umbelina's employment requires him to be out of the country.9 (17) Mrs. Umbelina discovered properties located in the Jefferson Court Development in South Middleton Township, Cumberland County, Pennsylvania.10 (18) The development was divided pursuant to a subdivision titled Final Subdivision Plan of Jefferson Court." (19) The Umbelina's called Ebener & Associates, a real estate agency, in May, 2005, because of their sign on the lot. 12 (20) Other than the Ebener & Associates sign there were no other signs on Lot 17.13 8 N.T. 9-11. 9 N.T. 9, 102-103. 10 N.T. 14, 15, 245. 11 N.T. 17, 144; Plaintiffs' Exhibit 2; Defendants' Exhibit 4. 12 N.T. 14-15. 13 N.T. 128. A- I is 08-4393 CIVIL TERM (21) When Mrs. Umbelina contacted Ebener & Associates, she spoke with Real Estate Broker, Robert J. Purvis ("Purvis"), to inquire about lots in the Jefferson Court Development. 14 (22) Mrs. Umbelina explained to Purvis that due to her disabilities, the plaintiffs' required a lot and home of relatively flat terrain that would accommodate Tabatha's limited mobility. 15 (23) Plaintiffs signed an exclusive buyer agency contract pursuant to which Purvis was to act as the buyers' agent in the proposed transaction. 16 (24) Mrs. Umbelina looked at other lots in the Jefferson Court Development but selected Lot 17, in part, because it was the largest property for the same price and because of its elevation and unobstructed view. 17 (25) Purvis showed plaintiffs the adjacent lot, Lot 18, for which Eddie Lanoue was the contractor. Lot 18 is significantly flatter, but is smaller and has a lower elevation and, hence a more obstructed view. 18 14 N.T. 15, 16; Plaintiffs' Exhibit 1. "N.T. 129. 16 Plaintiffs' Exhibit 1. 17 N.T. 22, 404 and 422. 18 N.T. 404-405, 411; and the court's view of the property on June 22, 2010, at N.T. 302-311 (hereinafter "View"). -5- ? r 08-4393 CIVIL TERM (26) Although plaintiffs' told Purvis they desired a lot with a relatively flat terrain, they nonetheless selected the lot with the steepest terrain and the best view.' 9 (27) Before deciding to purchase Lot 17, plaintiffs visited the site numerous times.20 In its natural state, Lot 17 had a substantial incline from front to back, the steepness of which increased closer to the wooded area at the rear of the lot.21 (28) Purvis introduced the plaintiffs to Adams at a joint meeting in May of 2005.22 (29) During the initial meeting, Mrs. Umbelina informed Adams of her experimental knee surgeries and stated that she was thankful to the Army for allowing her to walk virtually pain free.zs (30) Prior to signing an agreement for the construction of the home, plaintiffs did not inform Adams that she suffered from any disability or had any special requirements because of her surgeries.24 19 N.T. 129; Defendant's Exhibit 1 and View. 20 N.T. 19. 21 N.T. 17-19, 397. 22 N.T. 22-23. 23 N.T. 469-470. 24 N.T. 131-132, 463. -6- 08-4393 CIVIL TERM (31) Adams informed plaintiffs that a ranch house would cost more than a two story home and suggested that plaintiffs choose a two story house plan with a first floor master bedroom.25 (32) Plaintiffs were happy with Adams' suggestion to build a two story house because it would be cheaper.26 (33) When the plaintiffs decided on a two story home Mrs. Umbelina did not ask Adams how her physical limitations would be affected by this type of home.27 (34) After the initial meeting between the parties, plaintiffs researched various building plans and selected one they believed was suitable to Mrs. Umbelina's needs.28 (35) Adams informed plaintiffs that Lot 17 would accommodate the house plan that plaintiffs had selected, and that it could be built within the applicable setbacks.29 (36) Plaintiffs received a proposal from Adams through Purvis in July or August, 2005 which they discussed with Purvis, their settlement attorney and Adams.so 25 N.T. 24; 130-131; 249; 423. 26 N.T. 130. 27 N.T. 131. 28 N.T. 25-26; Plaintiffs' Exhibit 5. 29 N.T. 27; 251-252. 30 N.T. 29-30; Plaintiffs' Exhibit 4. -7- I 1 08-4393 CIVIL TERM (37) The specification sheet that was given to the plaintiffs as part of the proposal documents was typed on Adams & Bream letterhead; however, the proposal had "Jack Adams Builders, LLC" at the top and the signature line of the document indicated "authorized signature of Jack Adams on behalf of Jack Adams Builders, LLC." 31 (38) The fact that Sid Bream was a partner in Adams & Bream was not a controlling factor in plaintiffs' choice of selecting a builder. 31 (39) Plaintiffs' attorney told Mrs. Umbelina the proposal was fine and she signed the document.33 (40) Mrs. Umbelina did not instruct her attorney to add anything to the proposal regarding her physical needs or restrictions. During construction of the house the Umbelinas did not seek assistance from their attorney to correct or resolve any of their concerns with the property or the construction of the home.35 (41) Jack Adams was an authorized agent of Jack Adams Builders, LLC.3s 31 N.T. 137. 32 N.T. 299-300. 33 N.T. 137-138. 34 N.T. 143. " N.T. 299. 36 N.T. 425. -8- + c 08-4393 CIVIL TERM (42) There was never any intent to have Adams & Bream Builders, LLC construct the plaintiffs' home.37 (43) The "Adams & Bream Builders, LLC" name on the specification sheet was an inadvertent mistake. 38 (44) The plaintiffs did not notice that the proposal and specifications appeared to be coming from two different companies nor did they raise any questions regarding the matter.39 (45) The price quoted in the aforesaid documents was $307,000 and included the real estate as well as construction of the house.ao (46) The standard agreement for the sale of new construction was executed on October 13, 2005 by the Plaintiffs and on October 15, 2005 by Adams.41 (47) Paragraph 12F of the standard agreement for the sale of new construction provides as follows: "Seller will comply with all restrictions and requirements imposed by any governmental authorities. ,42 3' N.T. 426-427. 38 N.T. 426; Defendant's Exhibit 3. 39 N.T. 30. 40 N.T. 35. 41 Plaintiffs' Exhibit 6. 42 Plaintiffs' Exhibit 6. -9- } I 08-4393 CIVIL TERM (48) Paragraph 15 of the standard agreement for the sale of new construction provides in relevant part that Adams was responsible for the grading of Lot 17.43 (49) The Umbelinas' purchased Lot 17 from Residential Homes Company on November 11, 2005, with a deed dated November 7, 2005.44 (50) The deed to the Umbelinas stated that Lot 17 is subject to all notations and conditions set forth in the final subdivision plan approval of Jefferson Court. The Umbelinas relied on their attorneys to explain these terms to them.as (51) At the time the Umbelinas purchased Lot 17 it was covered with over-brush and some trees, the clearing of which began shortly after the Umbelinas closed on the property .46 IV. Construction Loan Schedule (52) The payment schedule authorized by Commerce Bank, the mortgage company, required that inspections would be made by the bank prior to payment of each draw.a' 43 Plaintiffs' Exhibit 6. 44 N.T. 17. Plaintiff's Exhibit 7. 45 N.T. 144. 46 N.T. 17-18, 44. 47 N.T. 44. -10- 08-4393 CIVIL TERM (53) There was a four draw payment schedule that paid Jack Adams Builders periodically as construction progressed. Mrs. Umbelina would sign off on the payments made to Jack Adams Builders.48 (54) The draw schedule listed Jack Adams Builders as the builder and the checks from Commerce Bank were made payable to "Jack Adams Builders, LLC.'.as (55) The checks were deposited into Jack Adams Builders' corporate account.5o (56) Adams presented the Umbelinas with a final bill on June 26, 2006, totaling $325,763.44 which was $18,763.44 above the estimated cost of the house.51 (57) Mrs. Umbelina wrote a check for the overages payable to "Jack Adams Builders, LLC."52 V. Location of the House on Lot 17 (58) After the November 11, 2005, closing on the property Adams, Linda Shover, a realtor with Ebener & Associates, Purvis and the Umbelinas met on Lot 17 to discuss the location of the house on the lot. Prior to this 48 N.T. 204-205. 49 N.T. 429. 50 N.T. 430. 51 N.T. 87-89; Plaintiffs' Exhibit 11. 52 N.T. 205. -11- I 08-4393 CIVIL TERM meeting Adams staked out the approximate location of the lot's setback restrictions under the township's ordinance and the subdivision plan.53 (59) At the aforesaid meeting, the Umbelinas viewed the setback stakes, which had been placed by Adams, and agreed to the location of the house without expressing any concern regarding the steepness of the lot.-54 (60) Mrs. Umbelina discussed the possibility of putting a pool in the backyard in the presence of Shover, Purvis and Adams. 55 (61) Adams advised the Umbelinas that the house could not be built past the tree line at the rear of Lot 17.56 (62) The location of the house on the lot was limited because the trees shown on the subdivision and land development plan at the back of Lot 17 could not be removed due to restrictions placed on the subdivision plan by the township,57 (63) Adams explained to the Umbelinas that the trees could not be removed because of township restrictions.58 53 N.T. 49. Plaintiffs' Exhibit 30. 54 N.T. 49,149. 55 N.T. 150, 275. 56 N.T. 276. 57 N.T. 434 and 435. Defendant's Exhibit 1. " N.T. 482. -12- 08-4393 CIVIL TERM (64) At the request of Adams, Purvis spoke to Mrs. Umbelina about moving the location of the house back an additional 20 feet. Mrs. Umbelina gave permission to move the house back 12 feet from its original proposed location.59 VI. Construction (65) Plaintiffs desired to have the property excavated in the "cheapest way" possible.so (65) Prior to pouring the foundation, Adams showed Mrs. Umbelina the approximate height of the garage floor by using a story poles' (66) Adams wanted to confirm that Mrs. Umbelina approved of the height garage prior to pouring the foundation and explained to her that the house could not be relocated after the foundation was poured.62 (67) After seeing the height of the basement walls, upon their completion, Mrs. Umbelina became concerned that the front yard and driveway would be too steep and relayed that concern to Adams .63 (68) Although Adams did not guarantee that Lot 17 would be the same as the grading of Lot 15, Adams did tell plaintiffs that the grading would 59 N.T. 50-51, 254, 406-407 431-432. 6° N.T. 34. 61 N.T. 432-433. 62 N.T. 478. O N.T. 52-53. -13- 08-4393 CIVIL TERM be similar and would follow township and county requirements." (69) Adams was aware that given the location of the house the driveway was going to be "terribly steep," and noted that he would not personally want a driveway as steep as the Umbelinas.ss (70) Although the house could have been moved back toward the tree line without violating any setback requirements, doing so would have restricted if not prevented the Umbelinas from constructing a pool. 66 (71) Adams acknowledged that if the basement had been dug deeper the driveway would have been flatter, but he did not approach the Umbelinas about the possibility of digging the basement deeper or reducing the size of the garage walls from nine feet to eight feet.s' (72) South Middleton Zoning Ordinance Section 1403 was violated because no building plans were submitted addressing restrictions and requirement associated with work within the "steep slope/precautionary slope zone" where the Umbelinas' driveway and the front of the house were located.68 64 N.T. 54-55, 58-59 and 445. 65 N.T. 432 and 484. 66 N.T. 295, 303 and View. 6' N.T. 471-472. 68 N.T. 330-331; 333; Plaintiffs' Exhibit 27. -14- 08-4393 CIVIL TERM (73) Neither the Township Enforcement Officers nor Adams were familiar with the requirements of the steep slope ordinance.ss (74) Russell E. Yinger ("Yinger") the South Middleton Township residential building inspector, did not know the steep slope regulation existed and never told Adams that Lot 17 was subject to any steep slope requirements.70 (75) Yinger never required Adams to get a sealed architect or engineering plan for the building methods to be used in overcoming foundation and other structural problems created by the slope conditions." (76) Yinger testified that he issued the permit without those requirements.72 (77) Yinger indicated the township approved the house plans.73 (78) When the building permit was issued Yinger believed the plans complied with all the codes and ordinance of the township.74 69 N.T. 186-187; 428; 475. 70 N.T. 187. 71 N.T. 187. 72 N.T. 188. 7' N.T. 180; Defendant's Exhibit 6. 74 N.T. 189. -15- 7 08-4393 CIVIL TERM (79) Yinger inspected the footings, foundation, energy and final inspection on the Umbelina property.75 (80) Yinger testified that when a certificate of occupancy is issued by the township, it is an affirmative statement that the builder can rely upon that the property meets all the applicable township codes.76 (81) Following a final inspection June 27, 2006 by Yinger and Timothy Stout, Yinger issued a certificate of occupancy." VII. Final Inspection/Closing (82) Plaintiffs moved into the house on June 28, 2006.7$ (83) On June 30, 2006, plaintiffs participated in a walkthrough of the interior of the house along with Adams, Purvis, and Shover, at which time plaintiffs prepared a "punch list" of items not completed as of the date of the walkthrough.79 (84) During the walkthrough nothing was ever mentioned or placed on the punch list with respect to the driveway being unacceptable.so 75 N.T. 164. 76 N.T. 190-191. 77 N.T. 165, 191; Defendant's Exhibit 12. 78 N.T. 102. 79 N.T. 91; Plaintiffs' Exhibit 12 and 13. 80 N.T. 37. -16- j 08-4393 CIVIL TERM (85) In spite of the numerous items on the punch list, the Umbelinas' stated that they loved the house.81 (86) Closing on the house was held on June 30, 2006.82 (87) Adams did not complete the punch list items by July 6, 2006, as agreed upon at the time of the walkthrough.as (88) Plaintiffs refinanced the construction loan at which time monies were escrowed for grading and seeding of the property.84 (89) Adams failed to complete the grading and seeding as promised by August 31, 2006.85 (90) On September 1, 2006, plaintiffs met with South Middleton Township Code Enforcement Officers, Russell Yinger and Timothy Stout, because they believed Adams had misrepresented various statements about the South Middleton Township code requirements.as (91) Following the meeting with the Township, Mrs. Umbelina confronted Adams regarding the Code requirements. According to Mrs. Umbelina, Adams responded that he got the occupancy certificate; however, he "apologized ... for not building our house to what we " N.T. 464. " N.T. 67. " N.T. 93. " N.T. 94; Plaintiffs' Exhibit 15 and 16. 85 N.T. 95 66 N.T. 101 and 258. -17- 08-4393 CIVIL TERM needed, and he did not have the experience to build the house that we required."87 (92) On September 22, 2006, Adams sent a letter to Shover at Ebener & Associates seeking confirmation as to how he should proceed with "the outstanding work. ,88 (93) By the time Adams sent the aforesaid letter to Shover, the Umbelinas had reached a point of frustration with Adams and concluded that Adams had no intention to continue the work on the punch list items.89 (94) On September 26, 2006, a consumer protection complaint was filed by Mr. Umbelina with the Pennsylvania Office of Attorney General. The complaint was filed against Jack Adams Builders, and did not mention any involvement of Adams & Bream.90 (95) The following items on the punch list were not completed by Adams: (a) Unfinished painting. (b) Installation of downspouts. (c) Correction of the continued mud infiltration into the basement. (d) Exposed nails in the carpet. (e) Separation of stairs leading to the second floor. (f) Unsecured countertops. (g) Dishwasher cabinet not meeting the floor. (h) Unsealed wires and pipes on the left side of the house. 87 N.T. 114. 88 N.T. 441; Defendant's Exhibit 18. 89 N.T. 98-99; Defendant's Exhibit 19. 90 N.T. 279-280. -18- 08-4393 CIVIL TERM (i) Cracks in the walkway, tilting the air conditioning unit. Q) Rocky topsoil.91 VIII. Evaluation by Plaintiffs' Expert (96) Gregory Rogalski, a court approved expert, engineer and codes officer, testified that upon review of the South Middleton Township approved subdivision plans relating to this property, it was envisioned that a split-level or bi-level with a garage located in the lower floor facing the front of the house would be constructed.92 (97) Construction of a flat first floor home within a "precautionary slope zone" usually requires a significant amount of earth moving and excavation, resulting in the potential for soil erosion.ss (98) The driveway, as constructed, is in violation of South Middleton Township's Zoning Ordinance Section 1807, requiring that a driveway not exceed a slope of seven percent within twelve feet of the street line. Although plaintiffs' driveway as an overall slope of eighteen percent, the first nine feet of the required aforesaid twelve foot area is only .8 percent over the required seven percent.94 (99) Although the slope of the driveway and front yard did not meet the requirements of the township ordinances, Rogalski testified that it would 91 N.T. 98-99; 104-109; Plaintiffs' Exhibit 30, photographs 59-76. 92 N.T. 326-328; Plaintiffs' Exhibit 27. 93 N.T. 329. 94 N.T. 334, 354; Plaintiffs' Exhibit 27. -19- 08-4393 CIVIL TERM have been possible to construct a house on Lot 17 in compliance with the zoning ordinances and building codes.95 (100) In Rogalski's opinion, the only two options to remediate the sloping/grading issue are to (1) lower the garage or raise the street; or (2) shift the house further back on the lot at the same elevation. In Rogalski's opinion, neither option is practical. (101) During Rogalski's field observations of the property he found that anchor straps were missing from the house. These straps are used as a connection between the framing of the house and the foundation. Such absence of straps in addition to being a violation of International Resident Code Section R403.1.5, exposes the house to the possibility of actually lifting up during a windstorm.97 (102) Rogalski testified that it would be challenging to correct the failure to install anchor straps.98 (103) Rogalski's field observations also identified significant cracks, with staining, to the foundation wall, indicating groundwater leakage into the basement.99 95 N.T. 336. 96 N.T. 336. 9' N.T. 338-341; 349; Plaintiffs' Exhibit 27. 98 N.T. 341. 99 N.T. 341; Plaintiffs Exhibit 27. -20- t » 08-4393 CIVIL TERM (104) Adams admitted that a homeowner could get water seepage through the cracks in the foundation and that the basement may need to be sealed on the inside to prevent this from happening.100 (105) Rogalski gave his expert opinion that the walls on the first floor above the cracked foundation have moved as is evidenced by the separation of the countertops, cabinets, drywall cracking and flooring separation.101 (106) Rogalski's field observations revealed that the insulation in the home was improperly installed, with the insulation facing out toward the open basement, which in the event of a fire, would cause the fire to spread more rapidly. 102 (107) Rogalski noted a violation of International Residential Code Section R319.1.3, in that non-pressure treated wood was in direct contact with concrete, permitting moisture from the concrete to decay the wood causing a structural concern or devaluation of the home. 103 (108) The stone veneer on the front of the house is separating from the house.104 10° N.T. 453-454; Plaintiffs' Exhibit 30; photograph 47. 101 N.T. 346-347; Plaintiffs' Exhibit 27; Plaintiffs' Exhibit 30; photographs 59-68. 102 N.T. 342; 350; Plaintiffs' Exhibit 27. 103 N.T. 344; 350; Plaintiffs' Exhibit 27. 104 Plaintiffs' Exhibit 30; photograph 74. -21- ) ti 08-4393 CIVIL TERM (109) In Rogalski's opinion, "the general condition of the construction can be rated as poor as compared to homes of similar age." IX. Additional Problems since Plaintiffs took Possession (110) Due to grading issues, plaintiffs have experienced mud infiltration into their basement, under the basement door, whenever it rains. (111) Post-construction, plaintiffs paid Rose Construction $2,000 to install a retaining wall to help alleviate this problem. 105 (112) Adams acknowledged the mud infiltration problem and that he had not addressed it.106 (113) After taking possession of the house, plaintiffs were required to install gutters on the front of the house due to a leaking roof. Repair work was performed by Slate Roofing at the cost of $965.33.107 (114) After taking possession of the house plaintiffs noticed that both the siding and downspout were coming off of the house. Plaintiffs had both situations corrected.108 (115) Due to water infiltration, plaintiffs were required to hire a contractor to replace wet drywall in the garage.109 (116) Plaintiffs contracted with Russell Silverman for drywall repair 105 N.T. 63-64; 117-118; Plaintiffs' Exhibit 19 and Exhibit 30; photographs 18-23. 106 N.T. 450. "' N.T. 75-76; 84; 123; Plaintiffs' Exhibit 30; photographs 36 and 37; Plaintiffs' Exhibit 23. 108 N.T. 78; Plaintiffs' Exhibit 30; photographs 39-41. 109 N.T. 83-85; Plaintiffs' Exhibit 30; photographs 53-58. -22- { ? R 08-4393 CIVIL TERM caused by water damage.' 10 (117) Mr. Silverman removed drywall damaged by the leaking roof and discovered there was no insulation underneath the drywall between the garage and the house."' (118) Instead, Mr. Silverman discovered that Adams had inserted scrap pieces of drywall into the wall.' 12 (119) Silverman replaced the drywall with a thicker drywall having an appropriate fire rating for a garage.' 13 (120) Silverman's remediation efforts cost the plaintiffs $4,850.14 (121) Post-construction and at the recommendation of Adams, plaintiffs had some terraces put into the property to address the grading issue and enable Mrs. Umbelina to maintain the property.' 15 (122) Plaintiffs paid Fry's Landscaping $15,651.86 to install terraces.' 16 (123) After taking possession of the house, plaintiffs learned that there was a non-grounded wire to their fuel line. Plaintiffs paid UGI $121 to 10 N.T. 152-153; Plaintiffs' Exhibits 28 and 29. "' N. T. 154. 112 N.T. 155. 13 N.T. 158-159. 14 Plaintiffs' Exhibit 28-29. 15 N.T. 65; 70-71; 259; Plaintiffs' Exhibit 30; photographs 27-28. 16 N.T. 116-117; Plaintiffs Exhibit 18. -23- ! 1 08-4393 CIVIL TERM ground this wire.' 17 (124) Due to the Code requirements and safety concerns, plaintiffs paid Gerald Brown $448.49 to install a railing on the porch.' 18 X. Discussion A. Liability of Jack Adams, individually, and Adams & Bream Builders, LLC We begin our discussion with the easiest matter to resolve: were Jack Adams, individually and/or Adams & Bream Builders, LLC parties to the contract with plaintiffs? As noted in the finding of fact, but for the inadvertent use of Adams & Bream letterhead on the specification sheet, there is nothing to connect this entity with the construction of plaintiffs' home. Every other document, the draw schedule, the checks and even plaintiffs' consumer protection complaint filed with the Pennsylvania Attorney General references Jack Adams Builders exclusively. Furthermore, the court finds no deception on the part of Adams or anyone representing the sellers regarding the involvement of Adams & Bream. The attempt to include Mr. Bream appears to be based less on his involvement and more on a perception that a former major league baseball player has deep pockets. Perceptions aside, neither the facts nor the law will permit that. Slightly more difficult is the question of the individual defendant, Jack Adams. But for the fact that he is the sole member of Jack Adams Builders, its authorized signor and its primary human face on and off the jobsite, there is nothing in the record to warrant that we pierce the corporate veil of a sham "' N.T. 119-120; Plaintiffs; Exhibit 20. 18 N.T. 122-124; Plaintiffs' Exhibits 22 and 25. -24- 08-4393 CIVIL TERM corporation, which Jack Adams Builders is decidedly not. Alternatively, plaintiffs suggest that we rely on the participation theory set forth in Wicks v. Milzoco Builders, Inc., 470 A.2d 86 (Pa. 1983), claiming that Adams participated in various fraudulent actions, which we address hereafter. First, plaintiffs claim that Adams misrepresented the corporate structure of Jack Adams Builders and his relationship to Adams & Bream. The court is not persuaded by this argument, which is not borne out by the facts. If plaintiffs did not understand who was building the house and with whom they had contracted, it was because they failed to pay attention, not because of any alleged misrepresentation. Plaintiffs' consumer protection complaint against Jack Adams Builders in September of 2006 belies any confusion on their part. Second, it is alleged that Adams misrepresented his building experience. Although Adams' abilities fell short of what this job ultimately required, Adams did not intentionally mislead plaintiffs regarding his experience. Adams' work for McCoy Brothers, Inc., his sole proprietorship as a remodeler, his 4 to 5 years as a partner with Adams & Bream and his selection as a contractor by Ebener & Associates, were not misrepresented. He did not need to, nor did he, embellish his experience to induce plaintiffs to enter into the contract. Unfortunately, his experience proved to be insufficient. The primary focus of plaintiffs' "participation" claim lies with the assurances that Adams gave regarding the steepness of the driveway. The court acknowledges that the driveway is steep - as Adams noted, "we all knew it was -25- f 1 08-4393 CIVIL TERM steep."19 In fact, as the court approached the development for its view, the Umbelina residence was clearly visible from a considerable distance, perched at the apex of the development. Consequently, the court was not surprised, after traveling up the steady incline of Woodlawn Drive, to find a home with an unmatchable view. The driveway is steeper than the court would desire, and we sympathize with the plaintiffs' concerns, but that is the price one pays for a picturesque view of the valley. If the court was not startled by the steepness, nor, should it have been a post-construction revelation to anyone involved in this transaction. Once the site of the home was determined, and Mrs. Umbelina was unquestionably involved in that process, the steepness of the grade of the yard and driveway were inevitable. Moving the house back another 10 or 20 feet would, perforce, have lessened the slope, but under no scenario does the court find that this driveway would have been an easy climb for anyone other than Lance Armstrong. Therefore, the question of what Adams might have said to the plaintiffs regarding the steepness is almost irrelevant. Whether Adams merely said he would try to meet plaintiffs' needs and they were in good hands or if he absolutely guaranteed them that driveway would be a gradual, moderate incline is not decisive. No amount of handholding promises or bald-faced lies could obscure the fact that the "finished" driveway, taking the same straight path up a hill from the street to the garage, is going to be just as steep as the "construction" driveway. As plaintiffs' expert noted, the only way to remediate the slope is to 19 N.T. 484. -26- { f 11 08-4393 CIVIL TERM lower the garage, raise the street or move the house back, none of which are viable today. Neither the court nor the contractor can bend the laws of nature. The fact remains that the Umbelinas chose this lot primarily for its cost, size and view. With that choice, they were not only locked into the contractor, but they were also locked into a house on a hill. Perhaps, they were so enamored with the view of the valley that their perspective of the slope of the property was distorted. Regardless, we do not find that Adams' opinions, statements about codes or even his own wishful thinking regarding the driveway constitute fraudulent misrepresentations that expose him to any personal liability. B. Rescission With respect to the remaining defendant, Jack Adams Builders, the court now turns to plaintiffs' request for the equitable remedy of rescission. In an equity matter, we may "fashion a remedy based upon consideration of fairness, justness, and right dealing in a particular situation as contrasted with strictly formulated rules of common law." Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). In doing so, we are expected to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy. Id. Specifically, with respect to rescission, the purpose of this doctrine is to return the parties as nearly as possible to their original positions with regard to the subject matter of the contract. Lackner v. Glosser, 892 A.2d 21, 31 n.7 (Pa. Super. 2006). Rescission amounts to the unmaking of a contract and results in an abrogation of all rights and responsibilities of the parties towards each other from the inception of the -27- r l % 08-4393 CIVIL TERM contract. Metropolitan Property and Liability Ins. Co. v. Pennsylvania, 509 A.2d 1346, 1348 (Pa. Cmwlth. 1986), aff'd 535 A.2d 588 (Pa. 1987). The question is whether Jack Adams Builders breached the very essence of the contract to defeat the object of the parties and justify the extraordinary relief of rescission. Castle v. Cohen, 676 F.Supp. 620, 627 (E.D.Pa. 1979) aff'd 840 F.2d 173 (3d. Cir. 1988). The court will first look at whether a breach occurred and then turn to the related issue of whether plaintiffs were induced to enter into and consummate the contract by fraud. Plaintiffs' various allegations that Jack Adams Builders breached its contractual obligations ultimately boil down to (1) an allegation that the defendant failed to properly site the house on Lot 17, leading to an unreasonably sloped front yard and driveway, contrary to the South Middleton Township grading requirements; and (2) that the defendant failed to construct a house of reasonable workmanship and value. With respect to the first allegation, as discussed above, we have found that the plaintiffs were intimately involved in siting the house on Lot 17. Moreover, when defendant asked to move the site of the house back plaintiffs declined to do so in order to preserve a backyard in which a pool could be constructed. Furthermore, Mrs. Umbelina was present to observe and approve of the site of the house before the foundation was poured. To be sure, the basement could have been dug deeper or the height of the basement walls could have been reduced; however, speculation after the fact does not constitute a breach when the slope of the driveway was readily ascertainable by plaintiffs by simple observation. -28- ? T w 08-4393 CIVIL TERM Likewise we decline to find the defendant liable for failing to comply with the South Middleton Township ("Township") grading requirements, including the 7% slope requirement and the steep slope ordinance. In this respect, the Township bears the brunt of responsibility. The Township never requested an engineer's statement or any other materials concerning the driveway's steep slope nor did it apprise Adams of any code violations during construction. To the contrary, until approached by plaintiffs in September, 2006, the Township (and defendant) believed that all of the code requirements had been met, resulting in the issuance of a certificate of occupancy. Unfortunately, if the Township, at this late date, required the regrading of the first twelve feet of the driveway so that it conforms to code, this would have the effect of making the driveway even steeper than it is in its current state. Under these circumstances, the court is reluctant to find that Jack Adams Builders should be held responsible for violating code requirements that were unknown and unenforced by the Township. The second manner in which plaintiffs allege that Jack Adams Builders breached its contractual obligations involve the faulty workmanship noted in finding of fact number 95. Suffice it to say that plaintiffs' claim in this respect has merit. Our Supreme Court has found that "as between the builder-vender and the vendee, the position of the former, even though he exercises reasonable care, dictates that he bears the risk that a home which he has built will be functional and habitable in accordance with contemporary community standards." Elderkin v. Gaster, 288 A.2d 771, 777 (Pa. 1972) citing Kellogg Bridge Co. v. Hamilton, 110 U.S. 108 (1884). Furthermore, a buyer justifiably relies on the skill -29- 0 n Y. 08-4393 CIVIL TERM of the builder because the builder holds himself out as having the necessary expertise with which to produce an adequate dwelling, and "has by far the better opportunity to examine the suitability of the home site and to determine what measures should be taken to provide a home fit for habitation." Id. We have previously addressed the issue of the site of the home, finding that plaintiffs' involvement nullifies defendant's liability. We turn, therefore, to the issue of habitability, where the quality of the finished product reveals a house that is less than what was bargained for. As plaintiffs' expert noted, "the general condition of construction can be rated as poor as compared to homes of similar age," and contrary to Elderkin, it was not "functional and habitable in accordance with contemporary community standards." Elderkin, 288 A.2d at 777. Although, we find that defendant did not misrepresent his experience in order to induce plaintiffs to enter into the contract, he failed to live up to his abilities with the construction of the house. Consequently, we find that plaintiffs are entitled to an award of restitution for their losses. We recognize that such an award normally accompanies an order granting rescission of the contract (see Metz v. Quaker Highlands, Inc., 714 A.2d 447 (Pa. Super. 1998) and Maker v. Cambridge Chase, Inc., 725 A.2d 757 (Pa. Super. 1999)). Although we decline to grant rescission and direct Jack Adams Builders to return the purchase price in exchange for conveying the property to Jack Adams Builders, we believe that equity requires an order of restitution for defendant's faulty work. In short, we do not believe that the extraordinary relief of rescission is appropriate in this case. Plaintiffs have not proven that they were fraudulently -30- ? 46 08-4393 CIVIL TERM induced to enter the contract by Adams or that they relied on any misrepresentations by Adams. Plaintiffs knowingly purchased a lot with a steep slope, 120 selected a two-story house design, balked at moving the foundation of the house back further in order to preserve the possibility of installing a pool, and walked the property repeatedly during construction. Adams made no intentional, material misrepresentations to induce plaintiffs in this process and warrant rescission. Nevertheless, Jack Adams Builders failed to perform in a workmanlike manner, resulting in losses to plaintiffs, which may not address their concerns with the site of the house, but will enable them to address their concerns over the sight of the house. C. Plaintiffs' Claims under Pennsylvania's Unfair Trade Practices and Consumer Protection Law At trial, plaintiffs proceeded under the "catchall" provision of the UTPCPL, 73 P.S. Section 201-2(4)(xxi). For all the aforesaid reasons, we find that plaintiffs failed to make out a cause of action for fraud, which is a requirement under the "catchall" provision. Skumowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002). Accordingly, relief under the UTPCPL is denied. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this X day of December, 2010, following a bench trial held over the course of three days, IT IS ORDERED AND DIRECTED as follows: 120 Although none of the parties were aware of the Township's steep slope requirements, they all had eyes to see. -31- 0 .* in 08-4393 CIVIL TERM (1) A verdict is entered in favor of Jack Adams, individually, and Adams & Bream Builders, LLC, as to all claims in that they were not parties to the contract at issue; (2) The court finds that plaintiffs failed to meet their burden of proof to establish that they reasonably relied upon any material misrepresentations of defendant Jack Adams Builders, LLC and, consequently, a verdict is entered in favor of Jack Adams Builders, LLC with respect to plaintiffs request for a rescission of the contract; (3) Plaintiffs are awarded the sum of $26,036.68 as damages from defendant Jack Adams Builders, LLC for improvements plaintiffs made to the property to remedy defendant's faulty work; (4) A verdict is entered in favor of Jack Adams Builders, LLC with respect to plaintiffs' claim under the Unfair Trade Practices and Consumer Protection Law. (5) Plaintiffs are awarded costs of suit; and (6) No other relief is granted to either side. By the Court, Albert . Masland, J. ?o?? Ronald L. Finch, Esquire For Plaintiffs E. Ralph Godfrey, Esquire For Defendants saa -32- r ILED-O FICE CT THE PR0TI-0N0Tj?I y ? i 0 DEC 13 PM 1: 19 CU 11 B E R L A N C CCI;k4 PENNSY1.'A I1 ?a Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rlfinck@mette.com MARIO UMBELINA, and TABATHA IN THE COURT OF COMMON PLEAS SANTORE-UMBELINA, husband and CUMBERLAND COUNTY, PENNSYLVANIA wife, Plaintiffs NO. 08-4393, consolidated with No. 07-3781 V. JACK ADAMS, Individually, JACK, ADAMS BUILDERS, LLC and ADAMS & BREAM BUILDERS, LLC, Defendants PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF PURSUANT TO PA. R.C.P. No. 227.1 ET SEO. The Plaintiffs, Mario Umbelina ("Mario") and Tabatha Santore-Umbelina ("Tabatha") (collectively the "Plaintiffs"), by and through their attorneys METTE, EVANS & WOODSIDE, file this Motion for Post-Trial Relief Pursuant to Pa. R.C.P. No. 227.1 et seq., as follows: Introduction On December 3, 2010, the Court entered a decision titled `In Re: Adjudication Order of Court' dated December 2, 2010 in the above-captioned matter following a three (3) day non jury trial. Accompanying its decision was an Opinion and Order of Court. 533235v1 2. The instant motion is filed pursuant to Pa. R.C.P. No. 227.1 et seq. 3. Pa. R.C.P. No. 227.1(a) provides: (a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may: 1) order a new trial as to all or any of the issues; or 2) direct the entry of judgment in favor of any part; or 3) remove a non-suit; or 4) affirm, modify or change the decision; or 5) enter any other appropriate order. 4. Pursuant to Pa. R.C.P. 227.1(c)(1), post-trial motions are to be filed within ten (10) days after verdict and Pa. R.C.P. No. 227.1 et seq., replaces the prior practice of filing exceptions in non jury trials. See Note. Pa. R.C.P. 227.1(a). 5. For the reasons that follow, Plaintiffs respectfully submit that the Court erred as a matter of law in reaching its conclusion that the Plaintiffs are not entitled to the remedy of rescission and same is not supported by the substantive evidence presented during trial. The Court's Refusal to Grant Rescission 6. The Court correctly recognized that the remedy of rescission of a contract is proper when the complaining party has suffered a breach of contract so material and substantial in nature that it affects the very essence of the contract and serves to defeat the object of the parties. (Op. at p. 28) 7. The Court correctly concluded that Adam's abilities fell short of what the job ultimately required. (Op. at p. 25) 2 8. The Court further correctly concluded that as between the builder-vendor and the vendee, the position of the former, even if he exercises reasonable care, dictates that the bears the risk that a home which he has built will be functional and habitable in accordance with the contemporary community standards and that the vendee may justifiably rely on the vendor's skill because the vendor holds himself out as having the skill necessary to produce an adequate dwelling. (Op. at p. 29-30) 9. The Court appropriately credited Gregory Rogalski's conclusion that the general condition of construction can be rated as poor compared to homes of similar age. (Op. at p. 30) 10. Further, the Court correctly concluded that contrary to Elderkin v. Gaster, 288 A.2d 771, 777 (Pa. 1972), the Umbelina house is not functional and habitable in accordance with community standards. (Op. at p. 30) 11. The Court correctly concluded that Adams failed to live up to his abilities with the construction of the house. (Op. at p. 30) 12. The Plaintiffs depart from the Court's reasoning on page 30 of the Opinion wherein the Court appears to abandon its analysis of the issue of whether the Defendants' breach was so material and substantial in nature that it "breached the very essence of the contract to defeat the object of the parties" and instead bases its conclusion on whether or not Adams made a fraudulent misrepresentation. 13. The Court's decision to decline the remedy of rescission appears to be based on the incorrect legal conclusion that the remedy of rescission requires a showing of fraud. To the contrary even in the absence of fraud, rescission is appropriate when the complaining party has suffered a breach of contract so material and substantial in nature that it effects the very essence of the contract and serves to defeat the object of the parties. See Terkel v. Hearth Rooms, Inc., 410 F. Supp. 1160, 1162 (W.D. Pa. 1976) (applying Pennsylvania law). 14. The Court correctly found that the Umbelina house is not functional and habitable in accordance with community standards. (Op. at p. 30) If by nothing else, this conclusion is wholly supported by the credited testimony of Gregory Rogalski that the Defendant failed to properly secure the house with anchor straps and that the absence of straps, in addition to being in violation of International Residential Code Section R403.1.5, exposes the house to the possibility of actually lifting up during a wind storm. (TT p. 338-341; 349; Plaintiff's Ex. 27) 15. A conclusion that the house is not functional and habitable in accordance with community standards is further supported by the following: (a) the existence of cracks in the house's foundation (Plaintiffs' Ex. 30; photographs 47-50); (b) that the walls on the first floor above the cracked foundation have moved as is evidenced by the separation of the countertops, cabinets, drywall cracking and flooring separation. (TT p. 346-347 and 488; Plaintiffs' Ex. 27; Plaintiffs Ex. 30, photographs 59-68); (c) that the exterior grade was sloping back towards the house as opposed to away from the house, permitting water to travel down the foundation wall and migrate into the basement through cracks, as was observed in Plaintiffs' property. (TT p. 348; 350; Plaintiffs' Ex. 27); 4 (d) insulation in the home was improperly installed, with the insulation facing out towards the open basement, which, in the event of fire, would cause the fire to spread more rapidly. (TT p. 342; 350, Plaintiffs' Ex. 27); and (e) the use of non-pressure treated wood in direct contact with concrete, permitting moisture from the concrete to decay the wood, causing a structural concern or devalue of the home in violation of International Residential Code Section R319.1.3, (TT p. 344; 350; Plaintiffs' Ex. 27); 16. Because the Plaintiffs proved that the Defendants' breach of the contract house is not functional and habitable in accordance with community standards (Op. at p. 30), the Court erred in concluding that the Plaintiffs did not suffer a breach of contract so material and substantial in nature that it effects the very essence of the contract and serves to defeat the object of the parties. 17. Accordingly, the Plaintiffs request this Court to reconsider its refusal to grant the equitable relief of rescission. The Court's Remedy Fails to Make the Plaintiffs Whole 18. The Plaintiffs respectfully submit that the Court erred as a matter of law in refusing to grant the remedy that the Plaintiffs have elected and by instead providing a remedy that does not make the Plaintiffs whole. 19. The Pennsylvania Constitution makes it clear that for every right, there must be a remedy. Teasters Local 115 v. Pennsylvania Labor Relations Board, 619 A.2d 382, 388 (Pa. Commw. 1992) citing PA. CONST. art I, § 11. 5 20. "[C]ontracts should be made by the parties, not by the courts, and hence remedies for breach of contract must have a basis in the agreement of the parties." Reed v. Pittsburgh Bd of Public Educ., 862 A.2d 131, 136 (Pa. Commw. 2004) quoting Restatement (Second) of Contracts § 33 cmt. b (1979). 21. The Court correctly recognized that the Plaintiffs expended $26,036.68 to remedy the Defendant's defective work and that the Plaintiffs are entitled to restitution for these amounts. 22. However, the Court's Opinion fails to consider the fact that the house remains defective in many other respects as set forth in paragraphs 14 and 15 above and such defects have not yet been remedied. 23. A limitation of recovery to a sum less than actual damage, is palpably in conflict with the right to remedy by due course of law. Reimer v. Delesio, 442 A.2d 731, 736 (Pa. Super. 1982) quoting Thirteenth & Fifteenth St. Passenger Ry. v. Boudrou, 92 Pa. 475, 482 (1880): 24. As problems continued to become apparent, the Plaintiffs stopped making repairs and instead elected to seek the remedy of rescission. 25. The Plaintiffs' decision was based on the simple fact that they did not get the house they paid for and the Defendants agreed to build. 26. Further, the Plaintiffs were required, under Pennsylvania law and specifically the doctrine of election of remedies, to elect a remedy and forego presenting evidence inconsistent with that remedy (i.e. the value of the house they paid for versus the value of the house they got, or the cost of additional repairs). See Raw v. Lehnert, 357 A.2d 574, 576 fn.3 (Pa. Super. 1976) 6 27. It is the Plaintiffs' right to elect which remedy he or she desires. See Soifer v. Stein, 101 Pa. Super. 135 (Pa. Super. 1930) If the Plaintiffs prove their case as to liability then the Court should use its equitable powers to grant the remedy that the Plaintiffs elected. 28. Accordingly, the Plaintiffs respectfully request that the Court reconsider that portion of its decision which denies the Plaintiffs the relief they requested, rescission. Findings of Fact Not Supported by the Evidence 29. In Finding of Fact No. 26, the Court finds, inter alia, that the Plaintiffs selected the lot with the steepest terrain. Such finding is contrary to the weight of the evidence in that the slope of the property was much less pronounced when they selected the lot. (TT p. 17-19, 229, 231, Plaintiffs' Ex. 30, pgs. 2-7) In fact, the lot did not have a steep slope where the driveway now is, as is evident by Ex. 30 pg. 8. To the contrary, the incredibly steep driveway area was created sometime after the basement walls were poured. (Compare Plaintiffs' Ex. 30 pgs 8, 9 to Plaintiffs' Ex. 30, pg. 10, 11). Accordingly, the Court's finding that the Plaintiffs selected the lot with the steepest terrain is not supported by the evidence. 30. In finding of Fact No. 27, the Court found that in its natural state, Lot 17 had a substantial incline from front to back. For the same reasons identified in paragraph 29 above, such finding is contrary to the weight of the evidence. 31. Considering the appearance of the area of the property where the driveway was ultimately placed when the foundation had been poured with what the driveway looks like now, no buyer could have anticipated that the driveway would have been this steep. 32. The Court's reasoning on page 26 of its Opinion that "Once the site of the home was determined.....the steepness of the grade of the yard and driveway were inevitable" is 7 erroneous. Had the basement been dug into the ground, as most basements are, rather than placed at street level and then mounding up dirt around it, the driveway would not be as steep as it is today. 33. Based on these erroneous findings of fact, the Court erred as a matter of law in concluding that what the Defendant said to the Plaintiffs about the steepness of the driveway is irrelevant. 34. The effect of these erroneous factual findings is belied by the Court's finding that "[t]o be sure, the basement could have been dug deeper or the height of the basement walls could have been reduced; however speculation after the fact does not constitute a breach when the slope of the driveway was readily ascertainable by the plaintiffs by simple observation." (Op. at pg. 28) To the contrary, before the basement was built, as Exhibit 30, pg. 8 makes clear, the steepness of the driveway was not readily apparent by simple observation. 35. Adams specifically admitted that if the basement had been dug deeper, the driveway would be flatter. (TT p. 471) Further, despite his knowledge that the driveway was going to be "terribly steep" (TT p. 432), he never approached the Umbelinas about digging the basement deeper or reducing the size of the garage walls down from 9 feet to 8 feet. (TT p. 472). 36. Because the Court's Findings of Fact regarding the steepness of the lot prior to construction are erroneous, the Plaintiffs respectfully request that the Court reconsider its conclusion that the Defendant's statements are irrelevant and grant rescission based on findings of fact supported by the record. 8 WHEREFORE, the Plaintiffs respectfully request that the Court amend its Opinion and paragraphs 2, 4, and 6 consistent with the foregoing. The Plaintiffs further request such other relief as the Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: (Z'Uv -VC .??. Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs Date: December 13, 2010 9 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: E. Ralph Godfrey, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Attorneys for all Defendants METTE, EVANS & WOODSIDE By: arx-ak A.4x,;'c- Ronald L. Finck, Esquire Sup. Court I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Date: December 13, 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. JACK ADAMS, Individually, and JACK ADAMS BUILDERS, LLC, . CZ ? NO. 08-4393, consolidated vMgloa7- -- 3781 a ? rn m ' c 7 r N C -..- O , CIVIL ACTION -LAW JURY TRIAL DEMAND Defendants DEFENDANT JACK ADAMS BUILDERS, LLC'S POST-TRIAL MOTIONS PURSUANT TO PA. R.C.P. 227.1 AND NOW, comes Defendant Jack Adams Builders, LLC, ("Defendant") by and through its attorneys, CIPRIANI & WERNER, P.C., and presents this Motion for Post-Trial Relief as follows: On December 3, 2010, the Court entered a decision titled "In Re: Adjudication Order of Court" dated December 2, 2010 following a three (3) day non jury trial, which commenced on June 21, 2010 and concluded on June 23, 2010. 2. In the Order, the Court found as follows: a. A verdict is entered in favor of Jack Adams, individually, and Adams & Bream Builders, LLC, as to all claims in that they were not parties to the contract at issue; b. The court finds that plaintiffs failed to meet their burden of proof to establish that they reasonably relied upon any material misrepresentations of defendant Jack Adams Builders, LLC and, consequently, a verdict is entered in favor of Jack Adams Builders, LLC with respect to plaintiffs' request for a rescission of the contract; c. Plaintiffs are awarded the sum of $26,036.68 as damages from defendant Jack Adams Builders, LLC for improvements plaintiffs made to the property to remedy defendant's faulty work; It d. A verdict is entered in favor of Jack Adams Builders, LLC with respect to plaintiffs' claim under the Unfair Trade Practices and Consumer Protection Law. e. Plaintiffs are awarded costs of suit; and f. No other relief is granted to either side. 3. On December 13, 2010, Plaintiffs, Mario and Tabitha Umbelina ("Plaintiffs"), filed Post-Trial Motions. 4. Defendant is filing its Post-Trial Motions pursuant to Pa. R. C. P. No. 227.1(c), which permits a party to file Post-Trial Motion within ten (10) days after the filing date of another party's post-trial motions. 5. Pa. R. C. P. 227.1 permits the Court to do the following after trial and upon written Motion for Post-Trial Relief: a. Order a new trial as to any and all of the issues; or b. Direct entry of judgment in favor of any party; or c. Remove a non-suit; or d. Affirm, modify or change the decision; or e. Enter any other appropriate order. 6. For the reasons that follow, Defendant respectfully submits that the Court erred as a matter of law in reaching its conclusion that Plaintiffs are not entitled to restitution since the award is not supported by the substantive evidence presented at trial and/or not supported as a matter of law. In the alternative, Defendant seeks to have any restitution amount awarded to Plaintiffs reduced by $3,500.00, which is the amount retained by Plaintiffs from the escrow account, and to have the original restitution award reduced by $2,000.00 since the costs of repair only equals $24,036.85, not the $26,036.85 awarded by the Court. 2 DEFENDANT IS ENTITLED TO JUDGMENT NOT WITHSTANDING THE VERDICT SINCE IT WAS AN ERROR OF LAW TO AWARD THE $26,036.85 BECAUSE THIS AMOUNT CONSTITUTES DAMAGES AT LAW AND BECAUSE PLAINTIFFS FAILED TO PROVE FRAUD, MATERIAL MISREPRESENTATION AND/OR RELIANCE. 7. At trial, Defendant objected to the testimony and admission of the evidence of damages as well as also asserted that Plaintiffs were not entitled to damages as a matter of law in its Findings of Fact, Analysis and Conclusions of Law. Defendant also raised, by way of a directed verdict and through its Findings of Fact, Analysis and Conclusions of law that Plaintiffs failed to prove fraud, material misrepresentation, and/or reliance at trial. 8. The Court awarded restitution as follows: a. Post-Construction, plaintiffs paid Rose Construction $2,000 to install a retaining wall to help alleviate this problem. (Op. at p. 22). b. Repair work done by Slate Roofing in the amount of $965.33. (Op. at p. 22). c. Repair work done by Russell Silverman for drywall repair in the amount of $4,850.00; (Op. at p. 23). d. The installation of terraces by Fry's Landscaping in the amount of $15,651.86. (Op. at p. 23). e. Repair of ground wire by UGI in the amount of $121.00 (Op. at p. 23); and f. Installation of railing on porch in the amount of $448.49. (Op. at p. 24). 9. Plaintiffs are not entitled to an award for the above amounts since they are legal damages and inconsistent with an equity action. Boyle v. Odell, 413 Pa. Super. 562, 571, 605 A.2d 1260, 1265 (1992). 10. As was acknowledged by the Court, "Following a pre-trial conference, plaintiffs elected to proceed solely with the equitable cause of action for rescission and the cause of action pursuant to the Unfair Trade Practices and Consumer Protection Law. All other causes of action were dismissed with prejudice." (Op. at p. 1). 11. The evidence presented at trial fails to establish that Defendant committed fraud and/or made a material representation upon which Plaintiffs relied. Specifically, the Court determined that Defendant did not commit fraud or make a material misrepresentation about the grading of the property. (Op. at. P. 29). Furthermore, the Court determined that Defendant did not commit fraud or make a material misrepresentation concerning his building experience. (Op. at p. 30). 12. Since Plaintiffs failed to establish that Defendant committed fraud and/or made a material misrepresentation upon which they relied, Plaintiffs are not entitled to restitution as a matter of law. 13. Accordingly, the Court erred as a matter of law when it awarded the costs of repair because they are legal damages and because Plaintiffs failed to establish fraud, material misrepresentation and/or reliance. WHEREFORE, based upon the evidence offered at trial and as a matter of law, Defendant is entitled to Judgment Not Withstanding the Verdict on the restitution award since the costs of repair are legal damages and because Plaintiffs failed to establish fraud, material misrepresentation and/or reliance. 4 DEFENDANT IS ENTITLED TO JUDGMENT NOT WITHSTANDING THE VERDICT SINCE IT WAS AN ERROR OF LAW TO AWARD RESTITUTION WHEN THERE WAS NO EVIDENCE THAT THE HOUSE WAS UNINHABITABLE, NOT A FUNCTIONAL LIVING UNIT OR UNFIT FOR ITS INTENDED PURPOSE 14. The Court improperly awarded restitution because there was no evidence presented at trial that established that the house was uninhabitable, was not a functional living unit, and was not fit for its intended purpose. 15. Plaintiffs' sole evidence at trial dealt only with the poor workmanship of the house. There was no evidence that established that the house was uninhabitable, that it could not be used as a functional living unit or that it was not fit for its intended purpose. 16. To the contrary, the evidence at trial showed the exact opposite. The evidence at trial showed that the Plaintiffs inhabited the house and used it a functional living unit with their children for over four years at the time of trial. 17. Since Plaintiffs failed to carry their burden at trial, it was an error of law to award restitution on the issue of habitability. 18. In its analysis in awarding restitution, the Court relied upon the case of Elderkin v. Gaster, 288 A.2d 771 (Pa. 1972). In Elderkin, there was evidence that the house could not be used as a functional living unit since there was no potable water. As required by Elderkin, there must be evidence that the house is not a functional living unit. 19. The Court committed an error of law by awarding restitution when there was no factual evidence presented at trial that established that the house was not a functional living unit. 20. In fact, Plaintiffs' expert only testified to the poor workmanship; not to the critical issue of whether the house is a functioning living unit. As the Court found in Fact Finding 109, Mr. Rogalski's opinion was only that "the general condition of the construction can be rated as poor as compared to homes of similar age." (Op. at 22, F.F. 109). Therefore, Plaintiffs' case fails 5 4 ti as a matter of law because there was no expert opinion or evidence that the house cannot be used a functional living unit. 21. Furthermore, the Vested Interest Doctrine conclusively establishes that the house met all township requirements and is a functional living unit suited for its intended purpose. 22. The Vested Interest Doctrine legally establishes that there are no code violations because the certificate of occupancy issued by the township conclusively establishes that the house was a functioning living unit. 23. Because the house was approved by the Township, there are no code violations based upon the holding in the Petrosky v. Zoning Hearing Bd. Upper Chichester Tp., Delaware County, 485 Pa. 501, 402 A.2d 1385 (1979). 24. The weight of the evidence established that the Vested Interest Doctrine applies to this case and precludes recovery. Specifically, Plaintiffs' expert, Mr. Rogalski, testified that: a. Jack Adams Builders, LLC obtained a building permit prior to building the home. (N.T. Vol. II, p. 363). b. South Middleton Township codes officer stamped the residential house plans with his approval. (N.T. Vol. II, p. 365). c. The Township signed off on the foundation, under slab, rough in, energy, drywall, and final inspections. (N.T. Vol. II, pp. 367-368). d. When a Certificate of Occupancy is issued, there is a determination that the property complies with the Uniform Construction Code and the ordinances of the Township. (N.T. Vol. II, p. 380). 25. Furthermore, the testimony of Russell Yinger, the Township's Residential Building Inspector, established that the Vested Interest Doctrine precludes an award of restitution. Mr. Yinger testified that: a. By stamping the building plans, the Township has given their approval. (N.T. Vol. I, p. 180). 6 b. A building permit is only issued when the applicant complies with the ordinance. (N.T. Vol. I, p. 181). c. When he issued a building permit, he is telling the builder that he has complied with all of the Township requirements. (N.T. Vol. I, p. 181). d. When the building permit was issued, the plans complied with all the codes and ordinances of the Township. (N.T. Vol. I, p. 189). e. He inspected the footings, foundation, energy and the final inspection on the Umbelina property. (N.T. Vol. I, p. 164). f. The house met all of the Township requirements at that time so he passed it. (N.T. Vol. I, p. 171 -172). g. When a Certificate of Occupancy is issued by the Township, it is an affirmative statement that the builder can rely upon that the property meets all of the applicable Township codes. (Op. at p. 16, F.F. 80). h. When he issues a Certificate of Occupancy, as a codes officer, he is certifying that the construction meets all of the Township codes. (N.T. Vol. I, p. 184). i. He did a final inspection on June 27, 2006 and issued a certificate of occupancy. (Op. at p. 16, F.F. 81). 26. Accordingly, the Court committed an error of law when it awarded restitution based upon habitability when there was no evidence presented at trial establishing that the house was not a functional living unit. Furthermore, the Court committed an error of law when it awarded restitution because the Vested Interest Doctrine precludes recovery. WHEREFORE, based upon the evidence offered at trial and as a matter of law, Defendant is entitled to Judgment Not Withstanding the Verdict since there was no evidence that the house was uninhabitable, not a functional living unit, or not fit for its intended purpose. Also, Plaintiffs' award of restitution is barred by the Vested Interest Doctrine. 7 DEFENDANT IS ENTITLED TO JUDGMENT NOT WITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, THE VERDICT SHOULD BE MOLDED SINCE THE AWARD FOR THE INSTALLATION COSTS FOR THE TERRACES, RETAINING WALLS AND RAILING WAS AN ERROR OF LAW 27. In addition to the argument that the cost for these items are legal damages, the Court erred when it awarded restitution for the terraces, retaining walls and railing since such award is not supported by the evidence or the analysis set forth by the Court in its Opinion. 28. The facts adopted by the Court clearly show that the costs for the terraces and retaining walls were not incurred because of Defendant's actions or inactions, but were the result of Plaintiffs' selection of a steep lot. The evidence presented at trial established that: a. They selected the lot with the steepest terrain and the best view. (Op. at p. 6, F.F. 26). b. Before deciding to purchase Lot 17, plaintiffs visited the site numerous times. In its natural state, Lot 17 had a substantial incline from front to back, the steepness of which increased closer to the wooded area in the rear of the lot (Op. at p. 6, F.F. 27). c. The deed to the Umbelinas stated that Lot 17 is subject to all notations and conditions set forth in the final subdivision plan approval of Jefferson Court. The Umbelinas relied upon their attorneys to explain these terms to them. (Op. at p. 10, F.F. 50). 29. The testimony of Plaintiffs' expert, Mr. Rogalski, established that the lot had a steep slope prior to the construction of the house. Mr. Rogalski testified that: a. Lot 17 was not a flat lot prior to construction. (N.T. Vol. II, p. 357). b. There was a slope on the Lot during the predevelopment stage and that the slope was the natural lay of the land. (N.T. Vol. II, p. 357). c. The subdivision plan identified the Lot as a steep slope. (N.T. Vol. II, p. 357, Exhibit D-1). 8 s ? 30. The testimony of Donald Group further confirmed that the lot had a steep slope prior to the construction of the house. Mr. Group testified that the lot's post-construction slope is the same as the pre-construction slope. (N.T. Vol. II, p. 397). 31. The analysis portion of the Order further supports that the lot was steep. Specifically, the Court noted that "it was not startled by the steepness, nor should it have been a post-construction revelation to anyone involved in this transaction." (Op. at p. 26). 32. The Court further noted that "Once the site of the home was determined, and Mrs. Umbelina was unquestionably involved in that process, the steepness of the grade of the yard and driveway were inevitable." (op. at p. 26). 33. Critically, in the Court's analysis, it stated, "The fact remains that the Umbelinas chose this lot primarily for its cost, size and view. With that choice, they were not only locked into the contractor, but they were also locked into a house on a hill." (Op. at p. 27). 34. The Court also correctly determined that Defendant was not liable for failing to comply with the South Middleton Township ("Township") grading requirement because the brunt of the responsibility lies with the Township. (Op. at p. 29). 35. In concluding its analysis, on page 30, the Court correctly determined that the Plaintiffs' involvement nullifies Defendants' liability. (Op. at p. 30). 36. The weight of the evidence in this case established that the steepness of the lot was not caused by Defendant, but was the natural lay of the land. Plaintiffs' decision to build a retaining walls and terraces was not the result of Defendant's failure to properly grade the lot, but was because of the natural steepness. 37. Also supported by the evidence presented at trial and adopted by this Court, is the fact that the steepness of the land was open and obvious to Plaintiffs prior to purchasing the land. 9 Since Plaintiff knew that the Lot was steep prior to purchasing it, they voluntarily locked themselves into a house with a steep yard, which, as the Court noted, was inevitable. Therefore, it was an error of law to hold Defendant responsible for the cost of the retaining walls and terraces. 38. The court also erred when it awarded the cost of the railing since this award is not supported by the weight of the evidence. 39. At trial, there was no evidence that the porch violated code at the time the certificate of occupancy was issued. 40. To the contrary, the evidence presented at trial established that the porch met code at the time the house was completed. Specifically, Russell Yinger testified that he did the final inspection on the Umbelina Property, (Op. at p. 16, F.F. 79) and that he issued a certificate of occupancy, which affirmatively states that the property met all the applicable township codes. (Op. at p. 16, F.F. 80). 41. Furthermore, Mr. Rogalski, Plaintiffs' expert, testified that he did not know the measurement of the porch at the time the house was sold to the Umbelinas. Therefore, he could not testify that the porch violated code at the time it was completed. (N.T. Vol. II, p. 358). 42. Accordingly, it was an error for the Court to award restitution for the terraces, retaining walls, and railing since Defendant was not responsible for the steep lot and there was no evidence that the porch violated code at the time the house was completed. WHEREFORE, based upon the evidence offered at trial and as a matter of law, Defendant is entitled to Judgment Not Withstanding the Verdict since Defendant was not responsible for the steepness of the lot. Furthermore, there is no evidence that the porch violated code at the time the house was completed. 10 • a AS A MATTER OF LAW, DEFENDANT IS ENTITLED TO JUDGMENT NOT WITHSTANDING THE VERDICT ON THE RESTITUTION CLAIM SINCE IT IS BARRED BY THE DOCTRINES OF WAIVER, LACHES, RATIFICATION, AND SUBSTANTIAL CHANGE 43. At trial, Defendant moved for a non-suit and a directed verdict asserting that Plaintiffs' claims were barred by the doctrines of waiver, laches and ratification. Defendant also raised these arguments in its Findings of Fact, Analysis, and Conclusions of Law as well as its supplemental Reply. 44. The Court made an error of law when it awarded restitution because the evidence at trial established that the waiver doctrine precludes recovery because the Plaintiffs' failed to act promptly. 45. In order to seek restitution, a party is required to act promptly. Schwartz v Rockey, 593 Pa. 536, 553, 932 A.2d 885, 895 (2007). 46. The weight of the evidence at trial established that Plaintiffs waived their right to seek restitution when they failed to act promptly, and elected to make repairs after they became aware of the alleged misrepresentations. The evidence at trial conclusively established that: a. The Plaintiffs admit that they were aware of the alleged misrepresentations in September 2006, two months after they obtained ownership and sole possession of the house and property. b. All of the alleged damages that the Plaintiffs seek to be reimbursed through restitution were voluntarily incurred after September 2006. c. Plaintiffs did not institute legal action until July 22, 2008. 47. Laches also bars relief in this case because Plaintiffs did not exercise due diligence and failed to promptly institute any action for rescission. In re Estate of Devine, 910 A.2d 699, 702 (Pa.Super. 2006). 11 s a 48. The evidence at trial established that Plaintiffs' unreasonable delay in seeking restitution and failing to exercise due diligence precludes their recover. Specifically, the following evidence confirmed these assertions: a. On September 1, 2006, Plaintiffs met with South Middleton Township Code Enforcement Officers, Russell Yinger and Timothy Stout, because they believed Adams had misrepresented various statements about the South Middleton Township code requirements. (Op. at p. 17, F.F. 90). b. The Umbelinas were represented by an attorney from Saidis, Flower, and Lindsay during the construction and purchase of their home. (N.T. Vol. I, pp. 135-136). c. Even though the Umbelinas were represented by counsel at the final settlement and they had concerns that the house did not meet their personal requirements because of the steepness, they never requested that money be held in escrow until that issue was fixed. (N.T. Vol. II, pp. 277-279). d. The Umbelinas did not raise any issues with regard to the steepness at the June 30, 2005 settlement. (N.T. Vol. II, pp. 264-265). e. Despite their alleged concerns about the house and the steepness, the Umbelinas closed on the house. (N.T. Vol. II, p. 257). f. When the Umbelinas had concerns about the property and the construction of the house, they did not go to their attorney to correct or resolve the issue. (N.T. Vol. II, p. 299). g. Plaintiffs filed a consumer protection claim against Defendant with the Pennsylvania Attorney General on September 26, 2006. (Op. at p 18, F.F. 94). h. Plaintiffs did not institute an action against Defendant until July 22, 2008. (Op. at p. 3, F.F. 9). 49. The weight of the evidence at trial established that Plaintiffs waited over two years to seek rescission against Jack Adams Builders, LLC, lived in the house since the settlement in June of 2006, used the property as their own, and made significant changes. 50. The court also committed an error of law in making an award of restitution because the Plaintiffs ratified the contact. 12 s ,M h 51. A plaintiff ratifies and affirms a contract if they fail to rescind within a reasonable time. Fichera v. Gording, 424 Pa. 404, 406, 227 A.2d 642, 644 (1967). 52. The evidence at trial established that Plaintiffs, by failing to rescind the contract within a reasonable time, elected to affirm the contract. 53. The evidence at trial established that the Plaintiffs continued to use the house, continued to make changes after they discovered the alleged misrepresentation, and waited over two years to file their complaint seeking rescission. Because of their failure to act within a reasonable time, Plaintiffs ratified the contract. 54. The weight of the evidence at trial also established that by constructing terraces and retaining walls, the Plaintiffs' made substantial changes to the property thereby precluding recovery. 55. Based upon the weight of the evidence presented at trial, it was an error of law to award restitution to the Plaintiffs because their claim was barred by waiver, laches, ratification and substantial change. WHEREFORE, based upon the evidence offered at trial and as a matter of law, Defendant is entitled to Judgment Not Withstanding the Verdict since Plaintiffs' claim for restitution is barred by waiver, laches, ratification and substantial change. AS A MATTER OF LAW. THE ORDERED RESTITUTION AMOUNT SHOULD BE MOLDED AND REDUCED BY $2,000.00 56. The Court awarded restitution in the amount of $26, 036.68. In rendering this amount, the Court determined that the Plaintiffs should receive the following reimbursement: a. Post-Construction, plaintiffs paid Rose Construction $2,000 to install a retaining wall to help alleviate this problem. b. Repair work done by Slate Roofing in the amount of $965.33. 13 0 •. : A c. Repair work done by Russell Silverman for drywall repair in the amount of $4,850.00; d. The installation of terraces by Fry's Landscaping in the amount of $15,651.86. e. Repair of ground wire by UGI in the amount of $121.00; and f. Installation of railing on porch in the amount of $448.49. 57. The total amount of the individual items making up the award of restitution equals $24,036.68; $2,000.00 less than the awarded amount of $26,036.68. 58. The $2,000.00 difference between the restitution amount of $26,036.68 awarded in the Order and the $24,036.68, which is the total of the amount of the items outlined in the Opinion, is not supported by the evidence and findings of fact in this case. 59. Accordingly, Defendant submits that the restitution set forth in the Order should be reduced and molded to $24,036.68. WHEREFORE, based upon the evidence offered at trial and as a matter of law, the verdict awarding restitution should be molded to $24,036.68. BE REDUCED AND BY THE ESCROW ACCOUNT 60. The parties entered into an Escrow Agreement at the time of settlement for the grading and seeding of the property. The amount of $3,500.00 was placed in the escrow and held by Plaintiffs' bank. (Op. at p. 17, F.F 88; Plaintiffs' Exhibits 15 and 16). 61. Plaintiffs' bank released the escrow funds to the Plaintiffs. Since Defendant would have been entitled to these funds, it is entitled to a credit in the amount of the $3,500.00 against any restitution amount ordered. 14 .r -W . c 62. Accordingly, Defendant submits that any amount of restitution ordered in this case should be molded to reflect the reduction of the amount by the $3,500.00 retained by Plaintiffs' from the escrow account. WHEREFORE, Defendant respectfully requests that the Court mold downward any restitution amount by the $3,500.00 retained by Plaintiffs from the escrow account. Respectfully submitted, & WERNER,'V.C. Date o ?U Godfrey, Esquire Atty. I.D. : 77052 1011 Mumma Road, Sui 201 Lemoyne, PA 17043 (717) 975-9600 Attorneys for Defendant, Jac 15 LLC CERTIFICATE OF SERVICE I, E. Ralph Godfrey, do hereby certify that on this 20th day of December 2010, a true and correct copy of the foregoing Defendant Jack Adams Builders, LLC's Post-Trial Motions was served upon the following by depositing same into the United States Mail, first class postage pre- paid to: Ronald Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Hon. Albert H. Masland 1 Courthouse Square Carlisle, PA 17013 16 MARIO UMBELINA AND IN THE COURT OF COMMON PLEAS OF TABATHA SANTORE-UMBELINA, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS -7 JACK ADAMS, INDIVIDUALLY AND P' P, ° 3 rj JACK ADAMS BUILDERS LLC (4 -- r l - , , DEFENDANTS 08-4393 CIVIL TERM , , ? co ? T, ORDER OF COURT ; AND NOW, this day of December, 2010, upon revi ew of the parties' post-trial motions, IT IS HEREBY ORDERED: (1) Each party shall file a response to the post-trial motion of the other party on or before January 19, 2011. (2) The parties shall file briefs in chambers on the post-trial motions on or before January 28, 2011. (3) Either party may file a reply brief in chambers on or before February 4, 2011. (4) Either party may request oral argument by doing so in writing on or before February 4, 2011. 'Ronald L. Finch, Esquire For Plaintiffs '?E. Ralph Godfrey, Esquire For Defendants saa oopo, 0:116d I? 1 DAB By the Court, Albert H. Masland, J. i t Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 rlfinck@mette.com MARIO UMBELINA, and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. JACK ADAMS, Individually, JACK ADAMS BUILDERS, and ADAMS & BREAM BUILDERS, LLC, Defendants FUU-OFFPOF OF THE PROTHONOTARY 2011 13: 27 CU's l?mTY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-4393, consolidated with NO. 07-3781 PLAINTIFFS' ANSWER TO POST-TRIAL MOTION OF DEFENDANT, JACK ADAMS BUILDERS, LLC The Plaintiffs, Mario Umbelina and Tabatha Santore-Umbelina (collectively the "Plaintiffs"), file this Answer to the Post-Trial Motion of Defendant, Jack Adams Builders, LLC ("Defendant"), as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. The averments of paragraph 6 constitute conclusions of law to which no response is required. 7. Admitted in part, denied in part. It is admitted only that the pleadings, trial transcript, and other filings of record speak for themselves. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings or testimony from their context, said averments are denied and strict proof thereof is demanded. 8. Admitted in part, denied in part. It is admitted only that the Court's Order and Opinion are instruments in writing which as such speak for themselves. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings from their context, said averments are denied and strict proof thereof is demanded. 9. Denied. The averments of paragraph 9 are conclusions of law to which no response is required. 10. Admitted. 11. Denied. The averments of paragraph 11 constitute conclusions of law to which no response is required. By way of further answer, it is specifically denied that a finding of fraud is a prerequisite to the grant of rescission. To the extent Defendant references the Court's opinion, said opinion is an instrument in writing which as such speaks for itself. 12. Denied. Plaintiffs incorporate their response to paragraph 11 herein as if fully set forth. 13. Denied. The averments of paragraph 13 constitute conclusions of law to which no response is required. 2 WHEREFORE, Plaintiffs respectfully request that this Court deny the Defendant's Motion for Judgment Notwithstanding the Verdict together with such other relief as the Court deems just and appropriate under the circumstances. PLAINTIFFS' RESPONSE TO DEFENDANT'S REQUEST FOR JUDGMENT NOTWITHSTANDING THE VERDICT CONCERNING THE HABITABILITY OF THE HOUSE 14. Denied. The averments of paragraph 14 constitute conclusions of law to which no response is required. To the extent a response is deemed required, it is specifically denied that a finding that a house is uninhabitable, not a functional living unit, and not fit for its intended purpose is necessary for the Court to enter an equitable order. 15. Denied. The averments of paragraph 15 constitute conclusions of law to which no response is required. To the extent a response is deemed required, the evidence at trial speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the evidence from its context, said averments are denied and strict proof thereof is demanded. By way of further answer, the Court correctly held that the Defendant "failed to live up to his ability with the construction of the house." (Op. at p. 30) 16. Denied. Plaintiffs incorporate their response to paragraph 15 above herein as if fully set forth. 17. Denied. The averments of paragraph 17 constitute conclusions of law to which no response is required. 18. Admitted in part, denied in part. It is admitted that the trial court's Opinion is an instrument in writing which as such speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings from their context, said averments are denied and strict proof thereof is demanded. To the extent paragraph 18 contains conclusions of law, no response is required. 19. Denied. The averments of paragraph 19 constitute conclusions of law to which no responsive pleading is required. 20. Denied. The testimony of the Plaintiffs' expert, Gregory Rogalski, speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the testimony from their context, said averments are denied and strict proof thereof is demanded. By way of further answer, the Defendant ignores those portions of Gregory Rogalski's testimony that do not support his arguments in his Post- Trial Motion, namely: ¦ that the Defendant's failure to install anchor stops in violation of I.R.C. Code § R403.15 exposes the house to the possibility of lifting up during a windstorm (Op. at par. 101); ¦ that the foundation was cracking significantly and there was evidence that the foundation has moved (Op. at par. 105); ¦ that the insulation in the house was improperly installed exposing the occupants to increased fire risk (Op. at par. 106); ¦ that the Defendant's violations of I.R.C. § R319.1.3 permits the support beams to decay (Op. at par. 107). 21. Denied. The averments of paragraph 21 constitute conclusions of law to which no response is required. By way of further answer the Defendant is unable to cite any authority for the novel proposition that a municipality's negligence relieves the builder of any and all liability for the builder's own faults. The Vested Interest Doctrine has never been so interpreted. 4 22. Denied. The averments of paragraph 22 constitute conclusions of law to which no response is required. 23. Denied. The averments of paragraph 23 constitute conclusions of law to which no response is required. 24. Denied. The averments of paragraph 24 constitute conclusions of law to which no response is required. By way of further answer, Plaintiff incorporates its response to paragraphs 20 and 21 above herein as if fully set forth. 25. Denied. The testimony of the Township's Residential Building Inspector, Russell Yinger, speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the testimony from their context, said averments are denied and strict proof thereof is demanded. By way of further answer, Plaintiffs incorporate their responses to paragraphs 20 and 21 above herein as if fully set forth. 26. Denied. The averments of paragraph 26 constitute conclusions of law to which no response is required. WHEREFORE, Plaintiff respectfully requests that the Defendant's Post-Trial Motion be denied together with such other relief as the Court deems just and appropriate under the circumstances. PLAINTIFFS' RESPONSE TO DEFENDANT'S REQUEST FOR JUDGMENT NOTWITHSTANDING THE VERDICT REGARDING TERRACES 27. Denied. The averments of paragraph 27 constitute conclusions of law to which no response is required. 28. Denied. The averments of paragraph 28 constitute conclusions of law to which no response is required. To the extent a response is deemed required, Plaintiffs incorporate paragraphs 29-36 of the Plaintiffs' Post-Trial Motion filed December 13, 2010 herein as if fully set forth. Further, the Defendant's arguments, as set forth in paragraph 28, are nullified by the Court's finding in paragraph 71 of its Opinion. 29. Denied. The testimony of Plaintiffs' expert, Gregory Rogalski, speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the testimony from their context, said averments are denied. By way of further answer, Plaintiff incorporates paragraphs 29-36 of the Plaintiffs' Post-Trial Motion filed December 13, 2010 herein as if fully set forth 30. Denied. The Donald Group's testimony speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the testimony from their context, said averments are denied and strict proof thereof is demanded. Further, Mr. Group's testimony was contradicted by the photographs of the basement as set forth in Plaintiffs' Exhibit 30, pgs. 8-11. 31. Denied. The averments of paragraph 31 constitute conclusions of law to which no response is required. By way of further answer, the Court's Opinion is an instrument of writing which as such speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings from their context, said averments are denied and strict proof thereof is demanded. Plaintiffs incorporate paragraphs 29-36 of the Plaintiffs' Post-Trial Motion filed December 13, 2010 herein as if fully set forth. 32. Denied. The averments of paragraph 32 constitute conclusions of law to which no response is required. By way of further answer, the Court's Opinion is an instrument of writing which as such speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, 6 misquotes, misrepresents, elaborates upon, or removes the contents of the writings from their context, said averments are denied and strict proof thereof is demanded. Plaintiffs incorporate paragraphs 29-36 of the Plaintiffs' Post-Trial Motion filed December 13, 2010 herein as if fully set forth. 33. Denied. The averments of paragraph 33 constitute conclusions of law to which no response is required. By way of further answer, the Court's Opinion is an instrument of writing which as such speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings from their context, said averments are denied and strict proof thereof is demanded. Plaintiffs incorporate paragraphs 29-36 of the Plaintiffs' Post-Trial Motion filed December 13, 2010 herein as if fully set forth. 34. Denied. The averments of paragraph 34 constitute conclusions of law to which no response is required. By way of further answer, the Court's Opinion is an instrument of writing which as such speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings from their context, said averments are denied and strict proof thereof is demanded. 35. Denied. The averments of paragraph 35 constitute conclusions of law to which no response is required. By way of further answer, the Court's Opinion is an instrument of writing which as such speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings from their context, said averments are denied and strict proof thereof is demanded. Plaintiffs incorporate paragraphs 29-36 of the Plaintiffs' Post-Trial Motion filed December 13, 2010 herein as if fully set forth. 7 36. Denied. The averments of paragraph 36 constitute conclusions of law to which no response is required. Plaintiffs incorporate their responses to paragraphs 28-35 above herein as if fully set forth. 37. Denied. Plaintiffs incorporate their responses to paragraphs 28-35 above herein as if fully set forth. 38. Denied. The averments of paragraph 38 constitute conclusions of law to which no response is required. 39. Denied. The averments of paragraph 39 constitute conclusions of law to which no response is required. By way of further answer, there was no evidence presented by the Defendant that the Plaintiffs altered the porch between the time the Defendant tendered the house to the Plaintiffs and the time of trial. 40. Denied. The averments of paragraph 40 constitute conclusions of law to which no response is required. Plaintiffs incorporate their response to paragraph 39 above herein as if fully set forth. 41. Denied. Plaintiffs' expert, Gregory Rogalski's testimony speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the testimony from their context, said averments are denied and strict proof thereof is demanded. By way of further answer, it can be reasonably inferred that the measurement of the porch to the ground is the same as it was at the time of the transfer of the house to the Umbelinas. Plaintiffs incorporate their response to paragraph 39 above herein as if fully set forth. 42. Denied. The averments of paragraph 42 constitute conclusions of law to which no response is required. 8 WHEREFORE, Plaintiffs respectfully request that this Court deny the Defendants' Post- Trial Motion together with such other relief as the Court deems just and appropriate under the circumstances. ANSWER TO DEFENDANTS' REQUEST FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE BASIS OF WAIVER, LACHES, RATIFICATION AND SUBSTANTIAL CHANGE 43. Denied. The pleadings, the trial transcript, and other writings of record speak for themselves. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the writings or testimony from their context, said averments are denied and strict proof thereof is demanded. 44. Denied. The averments of paragraph 44 constitute conclusions of law to which no response is required. 45. Denied. The averments of paragraph 45 constitute conclusions of law to which no response is required. 46. Denied. The averments of paragraph 46 constitute conclusions of law to which no response is required. By way of further answer, Plaintiffs initiated an action against Adams & Bream Builders in June of 2007 who is also a Defendant in this action. The confusion over the appropriate party was caused solely by the Defendant's improper use of letterhead with the name Adams & Bream on it. Accordingly, Plaintiffs' defense of laches is barred by the Defendant's own unclean hands. Further, in order for the defense of laches to show that it was prejudiced by the Plaintiffs' alleged failure to act promptly. 47. Denied. Plaintiffs incorporate their response to paragraph 46 above herein as if fully set forth. 9 48. Denied. Plaintiffs incorporate their response to paragraph 47 above herein as if fully set forth. By way of further answer, steepness of the driveway was not the only issue complained of in this case. 49. Denied. The averments of paragraph 49 constitute conclusions of law to which no response is required. Plaintiffs incorporate their responses to paragraphs 15, 20, 28, and 46 above herein as if fully set forth. By way of further answer, many of the problems complained of by the Plaintiff were not immediately ascertainable and Plaintiffs are entitled to the benefit of the discovery rule. 50. Denied. The averments of paragraph 50 constitute conclusions of law to which no response is required. 51. Denied. The averments of paragraph 51 constitute conclusions of law to which no response is required. 52. Denied. The averments of paragraph 52 constitute conclusions of law to which no response is required. By way of further answer, Plaintiffs incorporate their response to paragraph 49 above herein as if fully set forth. 53. Denied. The evidence at trial speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misquotes, misrepresents, elaborates upon, or removes the contents of the evidence from its context, said averments are denied and strict proof thereof is demanded. Plaintiffs incorporate their response to paragraph 49 above herein as if fully set forth. 54. Denied. The averments of paragraph 54 constitute conclusions of law to which no response is required. 55. Denied. The averments of paragraph 55 constitute conclusions of law to which no response is required. 10 WHEREFORE, Plaintiffs respectfully request that this Court deny the Defendant's Post- Trial Motion and grant such other relief as the Court deems just and appropriate under the circumstances. PLAINTIFFS' ANSWER TO DEFENDANT'S REQUEST THAT THE RESTITUTION BE MOLDED AND REDUCED BY $2,000.00 56. Admitted. 57. Admitted. By way of further answer, the Court correctly found that there are numerous other problems with the property. To date, those problems have not been remedied. 58. Denied. Plaintiffs incorporate their response to paragraph 57 above herein as if fully set forth. 59. Denied. Plaintiffs incorporate their response to paragraph 56 above herein as if fully set forth. WHEREFORE, Plaintiffs respectfully request that this Court deny the Defendant's Post- Trial Motion together with such other relief as the Court deems just and appropriate under the circumstances. PLAINTIFFS' ANSWER TO DEFENDANT'S REQUEST THAT THE VERDICT BE REDUCED BY $3,500.00 60. Admitted. 61. Admitted in part, denied in part. It is admitted only that the escrow agent released the funds to the Plaintiffs. It is specifically denied that the Defendant "would have been" entitled to these funds. To the contrary, the funds were used to remedy the improper grading and seeding of the property which was never finished by the Defendant. Defendant failed to produce any evidence that it was somehow entitled to this sum from the escrow account. This defense was not advanced at trial and is therefore waived. 11 62. Denied. The averments of paragraph 61 above are incorporated herein by reference as if fully set forth. WHEREFORE, Plaintiffs respectfully request that this Court deny the Defendant's Motion for Post-Trial Relief together with such other relief as the Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: 6?6W_,? il 4--? Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs Date: January 18, 2011 12 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: E. Ralph Godfrey, Esquire CIPRIANI & WERNER 1011 Mumma Road, Suite 201 Lemoyne, PA 17043-1145 Attorneys for all Defendants METTE, EVANS & WOODSIDE By: Ronald L. Finck, Esquire Sup. Court I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Date: January 18, 2011 533910v1 13 I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs VS. JACK ADAMS, Individually, and JACK ADAMS BUILDERS, LLC, Defendants NO. 084393, consolidated with No. Q7,- 3781 ..w • :zrr3 CIVIL ACTION -LAW xt ; ' JURY TRIAL DEMAND DEFENDANTS, JACK ADAMS, INDIVIDUALLY, ADAMS AND BREAM BUILDERS, LLC AND JACK ADAMS BUILDERS, LLC'S ANSWER TO PLAINTIFFS' POST-TRIAL MOTIONS PURSUANT TO PA. R.C.P. 227.1 ET SEQ. AND NOW, come Defendants, Jack Adams Builders, LLC, Jack Adams, individually, and Adam & Bream Builders, LLC ("Defendants"), by and through their attorneys, CIPRIANI & WERNER, P.C., and present this Answer to Plaintiffs' Motion for Post-Trial Relief, as follows: Preamble Prior to addressing the issues raised in Plaintiffs' Motion for Post-Trial Relief, it should be noted that Plaintiffs have waived their right to seek post-trial relief for any and all claims asserted against Defendants except for two issues: (1) the Court's denial of rescission asserted against Defendant Jack Adams Builders, LLC; and (2) the amount of restitution awarded to them and against Defendant Jack Adams Builders, LLC. Specifically, Pa.R.C.P. 227.1 requires timely objection and specific mention in a post-trial motion before an issue may be considered by the post-trial court. DiSalle v. P.G. Pub. Co., 375 Pa. Super. 510, 544 A.2d 1345, 1363 (Pa. Super. 1988). Plaintiffs have not alleged any legal basis to reverse the Court's determination that Jack Adams, individually, and Adams and Bream, LLC were parties to the Agreement of Sale or in any way violated the Unfair Trade Practices and Consumer Protection Law. Therefore, the Court's review of this matter is limited to the two issues stated above. 1. Admitted. 2. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent that a response may be required, Plaintiffs are not entitled to any post-trial relief since the Court's determinations are not against the weight of the evidence or an error of law. 3. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent that a response may be required, Plaintiffs are not entitled to any post-trial relief since the Court's determinations are not against the weight of the evidence or an error of law. 4. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent that a response may be required, Plaintiffs are not entitled to any post-trial relief since the Court's determinations are not against the weight of the evidence or an error of law. 5. Denied. It is denied that the Court erred as a matter of law when it denied Plaintiffs' claim for rescission. To the contrary, the substantive evidence presented at trial, the credibility of witnesses, and the weight to be accorded such evidence clearly supports the Court's determination that rescission was not warranted. Therefore, Plaintiffs are not entitled to any post- trial relief. PLAINTIFFS ARE NOT ENTITLED TO RESCISSION 6. Denied. This paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any 2 interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. To the extent that a response may be required, the Court properly concluded that the extraordinary relief of rescission is not appropriate in this case since Plaintiffs failed to prove that they were fraudulently induced into the contract or relied upon any misrepresentations allegedly made by Defendants. As for the denial of the rescission claim based upon poor workmanship, the Court properly cites to the correct legal standard that it has the equitable power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). As was further noted by the Court, it is "to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy." Id. Therefore, the Court did not commit an error of law when it denied the request for rescission and only awarded restitution. Furthermore, the mere fact that Plaintiffs are not happy with the limited award of restitution and dispute the findings of fact determined by the Court, this is not sufficient grounds to grant Plaintiffs' Post-Trial Motions. 7. Denied. This paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. As for the denial of the rescission claim based upon poor workmanship, the Court properly cites to the correct legal standard in that it has the equitable power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). 3 1142 n.2 (Pa. 1991). The Court correctly holds that it is "to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy." Id. Therefore, the Court did not commit an error of law when it denied the request for rescission and only awarded restitution. 10. Denied. This paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. To the extent that a response may be required, Defendant, Jack Adams Builders, LLC, incorporates its Post-Trial Motions, which contends that there was no evidence presented at trial that established that the house could not be lived in, could not be used as a functional living unit, and was not fit for its intended purpose. Furthermore, the evidence at trial clearly showed that the Plaintiffs inhabited the house and used it as a functional living unit with their children for over four years and still resided in it at the time of trial. To the extent that the Court found the house not to be functional and habitable, which is denied, the Court properly concluded that it has the equitable power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). The Court correctly holds that it is "to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy." Id. Therefore, the Court did not commit an error of law when it denied the request for rescission and only awarded restitution. 11. Denied. This' paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any 5 interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. As for Plaintiffs" assertion that they are entitled to rescission because Adams failed to live up to his abilities with the construction of the home, the Court properly applied the standard that it has the equitable power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). The Court correctly holds that it is "to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy." Id. Therefore, the Court did not commit an error of law when it denied the request for rescission and only awarded restitution. 12. Denied. This paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. To the extent that a response may be required, the Court properly concluded that the extraordinary relief of rescission was not warranted in this case. Also, the Court did not depart from its analysis on the issue of whether the Defendants' poor workmanship was so material and substantial in nature that it "breached the very essence of the contract to defeat the object of the parties." As was stated above, the Court has the equitable power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). The Court correctly holds that it is "to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy." Id. In its opinion, the Court analyzed the issue of 6 the steepness of the land and the lack of any fraud and/or material misrepresentation on the part of Defendants in its determination not to grant rescission. As for the poor workmanship issue, the Court determined that an award of restitution was warranted, but that the facts presented did not necessitate the granting of the extraordinary relief of rescission. This determination is well within the Court's discretion. As such, the Court did not commit an error of law when it denied Plaintiffs' request for rescission. 13. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the contrary, the Court's decision to deny rescission is based upon the correct legal conclusions and application of the law. As was stated above, the Court has the equitable power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). The Court correctly holds that it is "to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy." Id. In this case, the Court properly concluded that Plaintiffs were not entitled to rescission since Plaintiffs failed to establish fraud and/or a material misrepresentation upon which they relied. As for the breach of contract issue, it was within the Court's discretion to deny the extraordinary relief of rescission and only grant restitution. As such, the Court did not commit an error of law when it denied Plaintiffs' request for rescission. 14. Denied. This paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. To the extent that a response may be required, Defendant, Jack 7 Adams Builders, LLC, incorporates its Post-Trial Motions, which states that there was no evidence presented at trial that established that the house could not be lived in, could not be used as a functional living unit, and was not fit for its intended purpose. Furthermore, the evidence at trial clearly showed that the Plaintiffs inhabited the house and used it a functional living unit with their children for over four years and still resided in it at the time of trial. To the extent that the Court finds the house not to be functional and/or habitable, which is denied, the Court has the equitable power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). The Court correctly holds that it is "to consider the panoply of interests affecting the parties and have broad discretion in effectuating a remedy." Id. It was within the Court's discretion to deny the extraordinary relief of rescission and only grant restitution based upon the breach of contract issue. As such, the Court did not commit an error of law when it denied Plaintiffs' request for rescission. 15. Denied. This paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. To the extent that a response may be required, Defendant, Jack Adams Builders, LLC, incorporates its Post-Trial Motions, which states that there was no evidence presented at trial that established that the house could not be lived in, could not be used as a functional living unit, and was not fit for its intended purpose. Furthermore, the evidence at trial clearly showed that the Plaintiffs inhabited the house and used it a functional living unit with their children for over four years and still resided in it at the time of trial. 8 should also be lowered by $2,000, since this extra amount is not supported by the evidence. Lastly, Defendants should receive a credit in the amount of the escrow. Therefore, Plaintiffs are not entitled to an award of restitution or, in the alternative, the award should be reduced. 22. Denied. The Opinion clearly sets forth that the Court took into consideration what was necessary to remedy the workmanship issues when it issued its award of restitution. As was stated in the Order, the restitution award "will enable them to address their concerns over the si t of the house." (Op. at p. 31). Here, the Court fashioned a remedy based upon the consideration of fairness and justness. Therefore, a proper remedy was awarded to the Plaintiffs in accordance with the evidence presented at trial. 23. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent that a response may be required, Court properly stated in its Opinion that it has the ability to "fashion a remedy based upon the consideration of fairness, justness, and right dealing in a particular situation as contrasted with strictly formulated rules of common law." (Op. at p. 27). Should the Court deny the Post-trial Motion of Defendant, Jack Adams Builders, LLC, then, in the alternative, it is Defendants' position that the Court did not commit an error of law when it awarded the restitution as it was based upon the proper standard of fairness and justness, which the Court deemed appropriate under the facts of this case. Furthermore, the cases of Reimer and Thirteenth & Fifteenth St. Passenger Ry are inapplicable to this matter. Both the Reimer and Thirteenth & Fifteenth St. Passenger Ry cases dealt with an award for personal injuries and the issue of damages under a negligence theory. Neither of these cases dealt with a claim for restitution or the standard that must be applied when fashioning a restitution award in an equitable action. Therefore, the Court did not commit an error of law. 12 24. Denied as stated. It is admitted only that Plaintiffs made an election to seek an equitable remedy and proceeded with their cause of action for rescission. It was Plaintiffs' decision to elect the remedy of rescission and to forego any legal remedies. Plaintiffs are now bound by their election and cannot seek an award of legal damages after the Court has made its decision. As was stated by the Court, an order for restitution is to be based upon fairness and justness. Here, the Court fashioned a remedy based upon the consideration of fairness, justness, and a right dealing in this case. Therefore, a proper remedy was awarded to the Plaintiffs in accordance with the evidence presented at trial. 25. Denied. This paragraph is denied as a conclusion of law to which no response is required. By making an equitable claim, Plaintiffs knew that they would be precluded from recovering legal damages. While Plaintiffs may disagree with the amount awarded to them for restitution, this is not a legal error, but only an attempt to reargue the credibility of the facts of the case. In its well reasoned Opinion, the Court properly fashioned a remedy it believed to be equitable. As stated previously, the Court is not limited by the strict limitations of legal remedies when it is deciding an equitable case. It has the power to "fashion a remedy based upon the consideration of fairness, justness, and a right dealing in a particular situation as contrasted with the strict rules of common law." (Op. at p. 27 citing Armstrong School District v. Armstrong Education Assoc., 595 A.2d 1139, 1142 n.2 (Pa. 1991). Therefore, a proper remedy was awarded to the Plaintiffs within the legal standard to be applied to an equity action. 26. Denied as stated. This paragraph is denied as a conclusion of law to which no response is required. It is admitted only that Plaintiffs were required to make an election of remedies since a party cannot seek inconsistent causes of action. Plaintiffs knowingly, and with the assistance of counsel, decided to pursue their equitable claim. By doing such, the Plaintiffs' 13 equitable claims were to be addressed under the legal standards developed for these types of cases. As was correctly noted by the Court, the standard in an equity action is to issue an award that is fair and just. The Court is not bound by the legal concept that a party must be made whole. While Plaintiffs may disagree with the Court's remedy or determination of what is fair and just, these are not valid legal grounds to reverse or modify the restitution award or grant rescission. 27. Admitted in part; denied as stated in part. This paragraph is denied as a conclusion of law to which no response is required. It is admitted that the Plaintiffs had a right to elect whether they were going to proceed in equity or At-Law. Plaintiffs elected to proceed in equity and, as such, limited there recovery to remedies available thereunder. To the extent that Plaintiffs proved their case, which is denied, the Court has great latitude in fashioning a remedy. Here, the Court granted the remedy of restitution, which it deemed to be fair and just. It was well within the Court's discretion to not award the remedy of rescission since the facts of this case did not rise to that level to warrant that extraordinary relief. Lastly, Plaintiffs' claim for restitution is barred by waiver, laches, substantial change, and ratification. 28. Denied. The Court should not reconsider its Order and Opinion since the decision to deny rescission is within the Court's discretion and was not an error of law. DISPUTED FINDINGS OF FACT 29. Admitted in part; denied in part. It is admitted that the Court found that Plaintiffs selected the lot with the steepest terrain. It is denied that Finding of Fact No. 26 is against the weight of the evidence. The credibility of witnesses and the weight to be accorded the evidence are matters solely within the province of the factfinder. Commonwealth v. Cappellini, 456 Pa. Super. 498, 690 A.2d 1220, 1224 (1997). In a bench trial, it is the duty of the trial judge to judge the credibility of the witnesses and to weigh their testimony. The Court's finding that Plaintiffs 14 selected the lot is not an abuse of discretion or an error of law. Furthermore, Findings of Fact Nos. 14, 17, 18, 19, 24, 25, 27, 49, and 50 support the finding that the Plaintiffs selected the lot with the steepest terrain. Furthermore, Finding of Fact No. 26 is supported by the testimony of Plaintiffs' expert, Mr. Rogalski. He testified that: A. Lot 17 was not a flat lot prior to construction. (N.T. Vol. II, p. 357). B. There was a slope on the Lot during the predevelopment stage and that the slope was the natural lay of the land. (N.T. Vol. II, p. 357). C. The subdivision plan identified the Lot as a steep slope. (N.T. Vol. II, p. 357, Exhibit D-1). The testimony of Donald Group confirmed that the lot had a steep slope prior to the construction of the house. (N.T. Vol. II, p. 397). These findings clearly support the following reasoning of the Court: In fact, as the court approached the development for its view, the Umbelina residence was clearly visible from a considerable distance, perched at the apex of the development. Consequently, the court was not surprised, after traveling up the steady incline of Woodlawn Drive, to find a home with an unmatchable view. The driveway is steeper than the court would desire, and we sympathize with the plaintiffs' concerns, but that is the price one pays for a picturesque view of the valley. If the court was not startled by the steepness, nor, should it have been a post-construction revelation to anyone involved in the transaction. Once the site of the home was determined, and Mrs. Umbelina was unquestionably involved in that process, the steepness of the grade of the yard and driveway were inevitable. Moving the house back another 10 or 20 feet would, perforce, have lessened the slope, but under no scenario does the court find that this driveway would have been an easy climb for anyone other than Lance Armstrong. (Op. at p. 26). Accordingly, the Court's finding that that the Plaintiffs' selected the lot with the steepest terrain is supported by the weight of the evidence. 15 30. Admitted in part; denied in part. It is admitted that the Court found that the lot in its natural state had a substantial incline from front to back. For the reasons stated in Paragraph 29 above, the Court's Finding of Fact No. 27 was not against the weight of the evidence. 31. Denied. First, Plaintiffs do not cite to any Finding of Fact determined by the Court, but instead only assert a legal argument that they do not agree with the Court's finding that the steepness "should not have been a post-construction revelation to anyone involved in the transaction." (Op. at 26.) As was stated above, the credibility of witnesses and the weight to be accorded the evidence are matters solely within the province of the factfinder. Commonwealth v. Cappellini, 456 Pa. Super. 498, 690 A.2d 1220, 1224 (1997). In a bench trial, it is the duty of the trial judge to judge the credibility of the witnesses and to weigh their testimony. There is no evidence presented in this matter that supports Plaintiffs' argument that they could not have anticipated that the driveway would be that steep. In fact, the Findings of Fact Nos. 24, 25, 27, 49, and 50 clearly show the opposite. 32. Denied. To the contrary, the Court's reasoning on page 26 is correct and supported by the weight of the evidence. As was stated in the prior paragraphs, Plaintiffs disagree with the Court's determination of the relevant facts. However, this assertion is not a basis upon which a post-trial motion can be granted because it is not an error of law since it is within the province of the Court to judge the credibility of witnesses and the weight to be accorded the evidence. Commonwealth v. Cappellini, 456 Pa. Super. 498, 690 A.2d 1220, 1224 (1997). Also, the Court's finding that "the steepness of the grade of the yard and drive were inevitable" is supported by the following evidence and facts: A. Mrs. Umbelina selected the lot because it was the largest property for the same price and because of its elevation and unobstructed view. (F. F. No. 24); 16 B. Plaintiffs' selected the lot with the steepest terrain and the best view. (F. F. No. 26); C. In its natural state, Lot 17 had a substantial incline from front to back, the steepness of which increased closer to the wooded area at the rear of the lot. (F. F. No. 27); D. The deed to the Umbelinas stated that Lot 17 is subject to all notations and conditions set forth in the final subdivision plan approval of Jefferson Court. (F. F. No. 50); E. The Umbelinas viewed the setback stakes, which had been placed by Adams, and agreed to the location of the house without expressing any concern regarding the steepness of the lot. (F. F. No. 59); Furthermore, the testimony of Plaintiffs' expert, Mr. Rogalski, establishes that: A. Lot 17 was not a flat lot prior to construction. (N.T. Vol. II, p. 357). B. There was a slope on the Lot during the predevelopment stage and that the slope was the natural lay of the land. (N.T. Vol. II, p. 357). C. The subdivision plan identified the Lot as a steep slope. (N.T. Vol. II, p. 357, Exhibit D-1). The testimony of Donald Group confirmed that the lot had a steep slope prior to the construction of the house. (N.T. Vol. II, p. 397). As noted by the Court in its analysis, Plaintiffs were intimately involved in the construction of the house, and Plaintiffs refused to move the house back in order to preserve the backyard. (Op. at p. 28). Also, the Court correctly noted that Mrs. Umbelina was present to observe and approve the site of the house before the foundation was poured. Based upon the above, the Court's conclusion that the steepness of the driveway was inevitable was not an error of law and was supported by the weight of the evidence. 33. Denied. To the contrary, the Court did not error as a matter of law since its conclusion that any statements contributed to Defendants about the steepness of the driveway were irrelevant since this finding is supported by the evidence. This conclusion is supported by the following evidence: 17 A. Mrs. Umbelina selected the lot because it was the largest property for the same price and because of its elevation and unobstructed view. (F. F. No. 24); B. Plaintiffs' selected the lot with the steepest terrain and the best view. (F. F. No. 26); C. In its natural state, Lot 17 had a substantial incline from front to back, the steepness of which increased closer to the wooded area at the rear of the lot. (F. F. No. 27); D. The deed to the Umbelinas stated that Lot 17 is subject to all notations and conditions set forth in the final subdivision plan approval of Jefferson Court. (F. F. No. 50); E. The Umbelinas viewed the setback stakes, which had been placed by Adams, and agreed to the location of the house without expressing any concern regarding the steepness of the lot. (F. F. No. 59); Furthermore, the testimony of Plaintiffs' expert, Mr. Rogalski, establishes that: A. Lot 17 was not a flat lot prior to construction. (N.T. Vol. II, p. 357). B. There was a slope on the Lot during the predevelopment stage and that the slope was the natural lay of the land. (N.T. Vol. II, p. 357). C. The subdivision plan identified the Lot as a steep slope. (N.T. Vol. II, p. 357, Exhibit D-1). The testimony of Donald Group confirmed that the lot had a steep slope prior to the construction of the house. (N.T. Vol. H, p. 397). As noted by the Court in its analysis, Plaintiffs were intimately involved in the construction of the house, and Plaintiffs refused to move the house back in order to preserve the backyard. (Op. at p. 28). Also, the Court correctly noted that Mrs. Umbelina was present to observe and approve the site of the house before the foundation was poured. Based upon the above, the Court's conclusion that the steepness of the driveway was inevitable was not an error of law and was supported by the weight of the evidence. 18 34. Denied. To the contrary, the Court's conclusion that "the slope of the driveway was readily ascertainable by the plaintiffs with simple observation" is supported by the weight of the evidence. This finding is supported by the following evidence and facts: A. Mrs. Umbelina selected the lot because it was the largest property for the same price and because of its elevation and unobstructed view. (F. F. No. 24); B. Plaintiffs' selected the lot with the steepest terrain and the best view. (F. F. No. 26); C. In its natural state, Lot 17 had a substantial incline from front to back, the steepness of which increased closer to the wooded area at the rear of the lot. (F. F. No. 27); D. The deed to the Umbelinas stated that Lot 17 is subject to all notations and conditions set forth in the final subdivision plan approval of Jefferson Court. (F. F. No. 50); E. The Umbelinas viewed the setback stakes, which had been placed by Adams, and agreed to the location of the house without expressing any concern regarding the steepness of the lot. (F. F. No. 59); Furthermore, the testimony of Plaintiffs' expert, Mr. Rogalski, establishes that: A. Lot 17 was not a flat lot prior to construction. (N.T. Vol. II, p. 357). B. There was a slope on the Lot during the predevelopment stage and that the slope was the natural lay of the land. (N.T. Vol. II, p. 357). C. The subdivision plan identified the Lot as a steep slope. (N.T. Vol. II, p. 357, Exhibit D-1). The testimony of Donald Group confirmed that the lot had a steep slope prior to the construction of the house. (N.T. Vol. II, p. 397). Also, the C'ourt's observations from the view support this conclusion: If the court was not startled by the steepness, nor, should it have been a post-construction revelation to anyone involved in the transaction. Once the site of the home was determined, and Mrs. Umbelina was unquestionably involved in that process, the steepness of the grade of the yard and driveway were inevitable. Moving the house back another 10 or 20 feet would, perforce, have 19 lessened the slope, but under no scenario does the court find that this driveway would have been an easy climb for anyone other than Lance Armstrong. (Op. at p. 26). Based upon the above, the Court's conclusion that the steepness of the driveway was readily apparent to the Plaintiffs was not an error of law. 35. Denied. This paragraph is denied as a conclusion of law to which no response is required. Furthermore, the Order and Opinion is a written document that speaks for itself. Any interpretation or assertions made by Plaintiffs concerning the meaning or legal conclusions of the Order and Opinion are denied. As was stated several times above, it's the Court's function to weigh evidence and its determination is solely within the province of the factfinder. Commonwealth v. Cappellini, 456 Pa. Super. 498, 690 A.2d 1220, 1224 (1997). In weighing the evidence, the Court did not commit an error of law when it found that "speculation after the fact does not constitute a breach when the slope of the driveway was readily ascertainable by plaintiffs by simple observation." 36. Denied. To the contrary, the Court's findings regarding the steepness of the lot prior to construction are supported by the weight of the evidence and are not an error of law. It is also denied that the Court needs to reconsider its conclusions that rescis on is not warranted since no error of law was committed. Specifically, the Court did not error as a matter of law in determining which witnesses were credible and the weight to be given to the testimony since it is the duty of the trial judge to determine the credibility of the witnesses and to weigh the testimony. 20 WHEREFORE, it is respectfully requested that Plaintiffs' Post-Trial Motions be denied. It is further requested that the Post Trial Motions of Defendant, Jack Adams Builders, LLC, be granted and that judgment be entered in favor of all Defendants and against Plaintiffs on all claims. Respectfully submitted, Date / I CIPRL4NI & WERNER, P.C. E. Ralph Godfrey,,"Esquir Atty. I.D. No: 77052 1011 Mumma Road, Suits Lemoyne, PA 17043 (717) 975-9600 Attorneys for Defendants 21 t CERTIFICATE OF SERVIC I, E. Ralph Godfrey, do hereby certify that on this i l r day of 'J40-,6,? z a true and correct copy of the foregoing Defendant Jack Adams Builders} LLC's Answer to Plaintiffs' Post-Trial Motions was served upon the following by depositing same into the United States Mail, fast class postage pre-paid to: Ronald Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (HAND DELIVERY) Hon. Albert H. Masland Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 22 CIPRIANI k WPRvPiD U r MARIO UMBELINA AND IN THE COURT OF COMMON PLEAS OF TABATHA SANTORE-UMBELINA, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. C-) , JACK ADAMS, INDIVIDUALLY AND ?m r-q M - JACK ADAMS BUILDERS, LLC, ,? +- DEFENDANTS 08-4393 CIVIL TERM <" ° -- a 3 ? i ORDER OF COURT = .' Z ; ==?r AND NOW, this day of February, 2011, following a non-jury trial, the court now considers the motions for post-trial relief filed by both Plaintiffs and Defendants. The court will briefly address the issue of the election of remedies. Prior to trial, the Plaintiffs elected to pursue rescission rather than damages for breach of contract. Thus, the Plaintiffs were limited to equitable remedies and precluded from seeking damages at law. Schwartz v. Rockey, 932 A.2d 885 (Pa. 2007). Defendants contend that the court's award of $26,036.68 constituted inappropriate legal damages. The court disagrees. As noted on pages 30 and 31 of our opinion, the court awarded restitution not damages. Restitution is an equitable remedy that is not inconsistent with rescission. Baker v. Cambridge Chase, Inc., 725 A.2d 757, 766 (Pa. Super. 1999). The Defendants' attempt to label the restitution award as legal damages fails. However, Defendants' correctly point out the error in the court's calculation and therefore the award of 08-4393 CIVIL TERM restitution is reduced by $2,000 to $24,036.68. In all other respects, the post-trial motions by both parties are DENIED. By the Court, ?/A Albert R, Masland, J. `Ronald L. Finch, Esquire For Plaintiffs r E. Ralph Godfrey, Esquire For Defendants :saa CoP'? ? ?r -2- IN THg COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and T ATHA SANTORE-UMBELINA, husb nd and NO. 07-3731 wife, Plaintiffs CIVIL ACTION -LAW VS. ADAMS AND BREAM BUILDERS, LLC Defend*nt PRAEIPE FOR ENTRY OF JUDGMENT ENTRY OF JUDGMENT ?a C ; -3 , a . - Cr3 ? t Please enter judgment in favor of Defendant, Adams and Bream Builders, LLC, and against Plaintiffs, Mario Umbelir?a and Tabatha Santore-Umbelina, in accordance with the Court's Orders entered December 3, 2010 and February 11, 2011. Respectfully submitted, Dated: Aew / CIPRIANI & WAR, P.C. By Attorne . No. 7705 1011 Mumma Road, Su e 201 Lemoyne, PA 17043 (717) 975-9600 Attorneys for Defendant, Adams and Bream Builders, LLC l??,?5?303 CERTIFICATE OF SERVICE i AND NOW, this day of March 2011, I, E. Ralph Godfrey, Esquire, of Cipriani & Werner, P.C., attorneys for Def?ndant, hereby certify that I served a copy of the Praecipe for Entry of Judgment this day by depositing the same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed to: Ronald L. Finck,squire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 171110-0950 IN MARIO UMBELINA and T. SANTORE-UMBELINA, hu wife, vs. ADAMS AND BREAM COURT OF COMMON PLEAS OF ;LAND COUNTY, PENNSYLVANIA ATHA tnd and ffs ERS, LLC nt NO. 07-3731 CIVIL ACTION -LAW I hereby certify that the names and addresses of the proper persons to receive this notice are: Mario Umbelina and Tabatha S tore-Umbelina, c/o Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 IN MARIO UMBELINA and T. SANTORE-UMBELINA, hu wife, vs. ADAMS AND BREAM AND NOW, this Werner, P.C., attorneys for COURT OF COMMON PLEAS OF LAND COUNTY, PENNSYLVANIA ATHA ind and ffs ERS, LLC .nt NO. 07-3731 CIVIL ACTION -LAW of March 2011, I, E. Ralph Godfrey, Esquire, of Cipriani & hereby certify that I served a copy of the Entry of Judgment, Rule 236 Notice, andlCertificate of Residence this day by depositing the same in the United States mail, postage Ronald L. Finck, Mette, Evans & V 3401 North Front PO Box 5950 Harrisburg, PA 1' id, at Carlisle, Pennsylvania, addressed to: oodside 110-0950 E: Tsquire IN THE COURT OF COMMON PLEAS OF 'UMBE AND COUNTY, PENNSYLVANIA MARIO UMBELINA and TAB THA SANTORE-UMBELINA, husband and wife, Plainti s vs. ADAMS AND BREAM BUILDERS, LLC AND NOW, this Defendant, Adams and Bream Tabitha Santore-Umbelina, Date: NO. 07-3731 CIVIL ACTION -LAW ENTRY OF JUDGMENT of March, 2011, Judgment is hereby entered in favor of LLC, and against Plaintiffs, Mario Umbelina and and wife. Prothonotary IN THE MARIO UMBELINA and T SANTORE-UMBELINA, ht wife, vs. ADAMS AND BREAM BUILD URT OF COMMON PLEAS OF ND COUNTY, PENNSYLVANIA THA id and LLC NO. 07-3731 CIVIL ACTION -LAW To: Plaintiffs, Mario Umbelin and Tabatha Santore-Umbelina, c/o Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-09 0 You are hereby notified in the above-captioned case. Date: l on March 2011, the attached Judgment was entered Prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARIO UMBELINA and TABATHA SANTORE-UMBELINA, husband and wife, Plaintiffs vs. .TACK ADAMS, Individually, and JACK ADAMS BUILDERS, LLC, r~ ~, NO.OS-4393, consolidated w>~H N ~07 3~ 3'Y3 ! .v3 ~' z -~ r~°D ~ ©' ~ rn-~= ~ r . -t ~v ~ Z . ~Ca » a-~n CIVIL ACTION -LAW ~c ~ c_~r,,, ~'` x -! JURY TRIAL DEMAND --~: N "~ :.,. _,.;, Defendants PRAECIPE TO STRIKE, REMOVE AND VACATE THE JUDGMENT I+'ROM THE JUDGMENT INDEX FILED AGAINST DEFENDANT JACK ADAMS BUILDERS, LLC. TO TIIE PROTHONOTARY: Please strike, remove and vacate the judgment recorded in the judgment index in the amount of $24,036.68 against Defendant, Jack Adams Builders, LI_C, in the above matter pursuant to the Pennsylvania Superior Court's Order dated November 30, 2U1 l., and the Pennsylvania Supreme Court's Order denying Plaintiffs' Petition for Allowance of Appeal dated June ~, 201%;. Respectfully submitted, Date ~ ~~ /~ CI$RIANI & WF'Tli NER, P.C. E. Ralph, dfre , Es uire 9 ~, Atty. I.D. No: 77052 '~ `~... 1011 Mumma Road, Suite 201 `~~ Lemoyne, PA 17043 (717) 975-9600 Attorneys for Defendant, ,Tack Adams Builders, LLC CERTIFICATE OF SERVICE ~ i~ I, F,. Ralph Godfrey, do hereby certify that on this r~~3 _ d~~y oI~ _,;~~;~ ~C~ t~ 2012, a true and correct copy of the foregoing PRAF,CIPE TO STRIKE, RF,MOVE AND VACATE, THE JUDGMENT FROM THE JUDGMENT INDEX F~II,1-;1:- AGAINS'T' DEFENDANT, JACK ADAMS BUILDERS, LLC. was served upon the following by depositing same into the United States Mail, first class postage pre-paid to: Ronald Finck, F,squire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 C 2 '~ CIPRIANI & WERNER, P.C.