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Home My WebLink About03-4414 ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : NO. 03- Lf4/1f e.~ ~ v. HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS ; CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED MOTION TO MAKE RULE ABSOLUTE AND NOW, comes Plaintiff, Annick Baminger, by her undersigned counsel, and respectfully moves this Court to make absolute the rule to show cause which was issued in the above captioned matter on June 29, 2004, and in support states the following: ] . Plaintiff Annick Barninger filed a Petition for Leave to File an Amended Complaint on June 23, 2004. 2. On June 29, 2004, this Court issued a Rule on Defendant Haubert Homes, Inc., to show cause why the Plaintiffs Motion for Leave to File an Amended Complaint should not be granted, Rule Returnable within twenty (20) days of the date of service of this Rule on counsel for Defendant. 3. On July 7, 2004, counsel for Plaintiff Annick Barninger caused a copy of the Rule to be served on counsel for Defendant Haubert Homes, Inc. by Certified Mail, Return Receipt Requested. A true and correct copy of the transmittal letter and the proof of service is attached hereto as Exhibit "A". 4. Defendant Haubert Homes, Inc. has failed to respond to Plaintiffs Petition. WHEREFORE, Plaintiff requests that this Court make the Rule to Show Cause Absolute and grant the Petition for Leave to File an Amended Complaint. Respectfully submitted, ;Or~~ R. Mark Thomas, Esquire ID# 41301 101 S. Market Street Mechanicsburg, P A 17055 (717)796-2100 R. MARK THOMAS Attorney at Law 101 South Market Street Mechanicsburg, Pennsylvania 17055-3851 Telefax: (717) 796-3600 Telephone: (717) 796-2100 July 2, 2004 Jennifer Yankanich, Esq. 3401 N. Front 5t. Harrisburg, P A 17110 RE: Annick Barninger v. Haubert Homes, Inc. NO. 03-4414 Civil Dear Jenni ler: The above captioned case has been lying dormant for months and due to our inability to agree upon the filing of an Amended Complaint I have petitioned the court for leave to file the Amended Complaint. Enclosed is a copy of the Petition along with the Amended Complaint which is slightly different from the Amended Complaint which I previously sent to you. The difference is that the enclosed Amended Complaint sets forth the actual amount of damages. Please get back to me if you have no objections to the tiling of this Amended Complaint so that I can get this case moving. If you do object to filing of this Amended Complaint please respond pursuant to the attached Rule to Show Cause. Very truly yours, ~J~ R. Mark Thomas RMT/ac cc: Annick Barninger E)<l ",1;/ .11""1' .. . .. ~ .,u~ u. ,I,. ~ i""'~o"'F'''Fllil''c.'I''A~''~''''''''''i:t.'"'''E I I'- GI I::() PostageS /.90 ;;t' Cl Cl Cl ,c' flFr<:; PT Certified Fee z. ...,3v / . '/5 Postmark Here Return Reclepl Fee (Endorsement RequIred) o Restrlcted Delivery Fee r=t (Endorsement RequIred) ;;t' ru Total Postage & Fees $ ~ 03 g ':::'~'''_h ./~-~:._~:._~ (~-_::rf- ha.16l!,~~_ ~ ~UfWt,,,,..t.~!:::::~' or PO Box No. 'chY:~SiStB;Zip+4~---."--.----~'--'---'-'--------~----'--...--..-.-.----.,.--..-..."-. ~....'lfli_I:IIIIJ.'rml....J:llIJ\ OI..f1;1TJOIf::I..,.Jilli.."1I~I.ot.[.Iij.> ,'-'C' '/." ~"'I:l~I.AIA,"i,;,..~.~....,=r"'lfl~ rli>"OO '''''''W2:dli,;(6; NO<! cofnplete ":,;' ;' il\lflj' C1ild oen\i~iy lS'deslrlld,f ,,:;:. '.' :v!i'rl - & ~rid ~ddress on the reverse . ''''I so'that IN :can retum !he card to you. . '.'AIliiCh~ls'6ilit{lo the back of the mallplece, (;1 f~f ~.n .t~~:~~ ff ~pllC8 pennlts. I~~-~~~';~'. .' .' ~J1::~-;~:;;:'<_:;::: i~i::if~fih . Yankanich, Esq. ~11'Ub;;l~~'tF:1'ont st )." ,.~'tl: "\\"~sg' ""''''PA' 17110 ,,:,:~::;:, _ " u,~~~,/*~;~. "",,~.:,', : ,-; !{r. '~~':I\:.' ......... /-"'.::',;': 3. - Service Type '~rilflod Mall [J Exp..... Mall \ . _ [J Registered [J Return Receipt for /yI~n:hand1se \ [J Insured Mall [J C.O.D. . ""~"1 4. Raatrlclod Deilvary? (ExI1a Fea) [J Yes I , ~ C 2. Article Numl:?er , (T,..;,.fortrom_1abeJ) , PS Fo;J, S8i.1~!>.ubL/;j 20011 7002 2410 0004 8736 0820 - I I I II . I O"f""i'lic,R.tur~ Receipt .' II 1- " I.) . 1-'iI '1 jj I) TI 102595-02-M-1540 ~ I (') ~..) ,U,l ( , -, , -- ... , c.:. f",1 c. - ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : NO. v. HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Annick Barninger, by and through her counsel, R. Mark Thomas, Esquire, and respectfully represents: I. Plaintiff, Annick Barninger, is an adult individual currently residing at 2401 Cope Drive, Mechanicsburg, Cumberland County, P A 17055. 2. Defendant, Haubert Homes, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 15 Central Boulevard, Camp Hill, Cumberland County, P A 17011. 3. Defendant was the owner and builder of a residential home at Lot #1, Ashcombe Farms, located in Upper Allen Township and which now has a residential address of 2401 Cope Drive, Mechanicsburg, P A 17055. 4. After the start of construction, but prior to its completion, Plaintiff entered into a Purchase Agreement dated August 27, 1999, to purchase the new home Defendant was building at the aforesaid location for a purchase price of $199,300.00. 5. At settlement Defendant provided Plaintiff with an express one (1) year warranty which applied to the newly built home which Plaintiff purchased. COUNT I BREACH OF CONTRACT 6. Paragraphs 1 through 5 are incorporated herein as if set forth at length. 7. Defendant negligently constructed the house and otherwise failed to construct the house in an acceptable workmanlike manner. 8. The Defendant's negligent and unworkmanlike construction consisted of the following: (a) Defendant improperly applied, or negligently failed to apply concrete sealer to the outside of the concrete and masonry block foundation walls; (b) Defendant improperly and negligently constructed the footer drains around the foundation walls; (c) Defendant improperly and negligently backfilled around the foundation walls; (d) Defendant improperly and negligently backfilled an underground utility trench extending from the driveway to the south side of the house; (e) Defendant improperly and negligently paved the driveway so as to leave a metal pipe and utility lid protruding several inches above the elevation of the paved driveway; (f) Defendant improperly and negligently did the final grading on the east side of the house; and (g) Defendant improperly and negligently installed and primed the molding around the garage doors. 9. As a direct result of Defendant's negligent and unworkmanlike construction Plaintiff has been caused to suffer the following damages: (a) Plaintiffs basement walls are seeping water and the cost of repairs is seventeen thousand ($17,000.00) dollars to have a perimeter basement waterproofing system installed which would include labor and proper backfilling around foundation walls; (b) The expense of digging out the south side yard, inspection of utility lines for damage caused by improper backfill, the repair of utility lines if necessary and the cost of properly backfilling this area (at this time the cost of this repair is unknown); (c) The expense of repairing the concrete sidewalk which currently has a void space underneath due to subsidence and erosion caused by Defendant's improper backfilling at time of construction (at this time the cost of this repair is unknown); (d) The expense of removing paved asphalt from the driveway, properly compacting the earth under the driveway to avoid future depressions and/or subsidence, repair of the protruding metal pipe so that it is flush with the new asphalt which will need to be installed (at this time the cost of this repair is unknown); (e) The expense ofremoving the chipped paint from the garage door trim and the cost of priming and painting the trim (at this time the cost of this repair is unknown); and 14. Defendant has breached its express warranty by refusing to repair the driveway asphalt, the improperly backfilled foundation walls, the improperly installed footer drainage system and the improperly applied, or failure to apply, waterproofing system. 1 5. Plaintiff has notified Defendant of the existing warranty claims on numerous occasions, but Defendant has failed or refused to comply with the warranty. WHEREFORE, Plaintiff seel<s damages from Defendant in an amount In excess of $20,000.00 plus costs and such other relief as the court deems appropriate. COUNT III BREACH OF IMPLIED WARRANTY 16. Paragraphs I through 15 are incorporated herein as if set forth at length. 17. Defendant is a builder-vendor who buys land and builds homes upon that land for purpose of sale to the general public. 18. Plaintiff justifiably relied upon Defendant's experience and skill to the effect that she would receive a home which would be a suitable living unit. 19. As a builder-vendor Defendant impliedly warranted that the home built for Plaintiff would be constructed in a reasonably workmanlike manner and that it would be fit for habitation. 20. The house in question was not built in a reasonably workmanlike manner and Defendant breached his implied warranty as follows: (a) Defendant improperly applied, or negligently failed to apply concrete sealer to the outside of the concrete and masonry block foundation walls; (b) Defendant improperly constructed the footer drains around the foundation walls; (c) Defendant improperly backfilled the foundation walls; (d) Defendant improperly backfilled an underground utility trench extending from the driveway to the south side of the house; (e) Defendant improperly paved the driveway so as to eave a metal pipe and utility lid protruding several inches above the elevation of the paved driveway; and (f) and (g) doors. 21. As a Defendant improperly did the final grading on the east side of the house; Defendant improperly installed and primed the molding around the garage direct result of Defendant's breach of implied warranty due to unworkmanlike construction Plaintiff has been caused to suffer the following damages: (a) Plaintiff's basement walls are seeping water and the cost of repairs IS seventeen thousand ($17,000.00) dollars to have a perimeter basement waterproofing system installed which would include labor and proper backfilling around foundation walls; (b) The expense of digging out the south side yard, inspection of utility lines for damage caused by improper backfill, the repair of utility lines if necessary and the cost of properly backfilling this area (at this time the cost of this repair is unknown); (c) The expense of repairing the concrete sidewalk which currently has a void space underneath due to Defendant's improper backfilling at time of construction (at this time the cost of this repair is unknown); (d) The expense of removing paved asphalt from the driveway, properly compacting the earth under the driveway to avoid future depressions and/or subsidence, repair of the protruding metal pipe so that it is flush with the new asphalt which will need to be installed (at this time the cost of this repair is unknown); (e) The expense of removing the chipped paint from the garage door trim and the cost of priming and painting the trim (at this time the cost of this repair is unknown); and (f) The expense of additional top soil and the grading of the topsoil to finished grade on the eastern side of the house (at this time the cost of this repair is unknown); WHEREFORE, Plaintiff seeks damages from Defendant in an amount in excess of $20,000.00 plus costs and such other relief as the court deems appropriate. Respectfully submitted, R. Mark Thomas, Esquire ID# 41301 101 S. Market Street Mechanicsburg, P A 17055 (717)796-2100 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Date: ;:7- c:f - 03 ~JJY~cUn7w r) C' , '""t:> .9- , - ~ (\ J ~ ~", d -- ~<.J ..t ~ {::.J - 0 ~ [j ~ ~ \ (,.. CJ\ SHERIFF'S RETURN - REGULAR CASE NO: 2003-04414 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BARNINGER ANNICK VS HAUBERT HOMES INC BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE HAUBERT HOMES INC was served upon the , at 1335:00 HOURS, on the 11th day of September, 2003 DEFENDANT at 15 CENTRAL BOULEVARD CAMP HILL, PA 17011 by handing to DON HAUBERT, PRESIDENT, ADULT IN CHARGE 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 Service Affidavit Surcharge 18.00 10.35 .00 10.00 .00 38.35 Sworn and Subscribed to before me this /7 ~ day of k~ 2<'l23 A.D. C)' (2 ~~ "t:;::'othonotary' So Answers: .rf7~&J<~ R. Thomas Kline 09/12/2003 R MARK THOMAS By: >;///~ Deputy Sheriff ANNICK BARNINGER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, NO. 03-4414 CIVIL v. HAUBERT HOMES, INC. CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant PRELIMINARY OBJECTIONS AND NOW comes the Defendant Haubert Homes, Inc. by its counsel METTE, EVANS & WOODSIDE and submits the following Objections to Plaintiff's Complaint: I. Defendant is a Pennsylvania Corporation which contracted to sell to Plaintiff, an individual, a town home located in Cumberland County, Pennsylvania, which at the time was under construction by the Defendant. 2. Plaintiff on or about September 8, 2003 filed a lawsuit against Defendant containing three counts: 1) Breach of Contract; 2) Alleging Bn:ach of Express Warranty; and 3) Alleging Breach ofImpJied Warranty. 3. The Complaint does not attach any writing eitht:r a contract or modification of contract relating to the construction of the property or of any express or other warranties. 4. The Complaint alleges at Paragraph 5 that ". . . at settlement, Defendant provided Plaintiff with an express one-year warranty. . ." applicable to the newly built home. 5. Paragraph 5 does not specify whether the express warranty was a writing or a declaration by an (unnamed) individual. OBJECTION FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 6. Plaintiffs Complaint fails to comply with Pa.R.C.P. 1019(h) which requires that when a claim is based on an agreement, the pleading shall specifically state if the agreement is oral or written. 7. Plaintiffs Complaint fails to comply with Pa.R.C.P. 1019(1), which requires that any claim based upon a writing attach that writing to the relevant pleading. WHEREFORE, Defendant respectfully requests that the Court will order Plaintiff to properly amend their pleading to include any relevant writings required under Pa.R.C.P. 1028(a)(2). OBJECTION FOR INSUFFICIENT SPECIFICITY OF PLEADING 8. Plaintiffs Complaint fails to comply with Pa.R.C.P. 1028(a)(3) in that the pleading is insufficiently specific with regard to the circumstances and details of the establishment of the express or implied warranty counts contained in the Complaint. 9. Paragraph 5 of the Complaint is insufficiently specific in that it does not detail the methodology by which an alleged one year express warranty was provided to the Plaintiff, or even whether it was provided by an authorized agent of the Ddendant, if that ever occurred. 10. Furthermore, the remainder of the Complaint is replete with references to express and implied warranties for alleged defects in construction, which presumably occurred after the settlement on the property. 2 11. No specific allegations as to how express or implied warranties were later delivered is contained in the Complaint. 12. No facts were pled to adequately support an allegation of violation of implied warranty of liability. WHEREFORE, Defendant respectfully requests that th,~ Court will dismiss Plaintiffs Count II, claiming Violation of Express Warranty and Count III claims violation of implied warranty, or in the alternative require Plaintiff to replead providing the appropriate specificity required under Pa.R.C.P. 1028(a)(3). Respectfully submitted, ~~~ By: \ ~ DAVID A. FITZSIMONS, ESQUIRE Supreme Court 1.D. #41722 3401 North Front Street P.O. Box 5950 Harrisburg, P A 17110-0950 (717) 232-5000 Attorneys for Defendant DATED: October \,2003 3 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, via facsimile and by depositing a copy of same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage prepaid, addressed as follows: R. Mark Thomas, Esquire 101 S. Market Street Mechanicsburg, P A l7055 METTE, EVANS & WOODSIDE ~ ' ~ \:' \'~' -, BY: \~~ '" DAVID A. FITZSIMONS, ESQUIRE Supreme Court I. D. No. 41722 3401 North Front Street P. O. Box 5950 Harrisburg, PA l71l0-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Haubert Homes, Inc. DATED: October \,2003 :337203 _I (") c ::::: "'tJti_~ Q'l,;, ~~'\ ~f :2; o w o " '-1 I o "T, :_-:1 r:- =:l co (:',l -~j;:~ ~....) , ;\~ :...,....:: ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED PLAINTIFF'S PETITION FOR LEAVE TO FILE AN AMENDED COMPLAINT Plaintiff, Annick Barninger, by her undersigned cmmsel, R. Mark Thomas, Esquire, petitions this court under Pa.R.C.P. 1033 for leave to file an Amended Complaint, and in support therefore respectfully represents the following: 1. In her original Complaint plaintiff alleged thre:e (3) counts against the defendant arising out of new construction of plaintiff s residence. 2. Specifically, plaintiff filed a count in Breach of Contract, a count alleging Breach of Express Warranty, and a count alleging Breach ofImplied Warranty. 3. Defendant, through its counsel, David A. Fitzsimons, Esquire, of Mette Evans and Woodside, filed Preliminary Objections alleging the following: a. The Complaint did not attach any writing purported to be the underlying contract between the parties; b. The Complaint did not allege whether the underlying contract was oral or written; and c. That the Complaint was insufficiently pleaded in that it did not set forth the terms of the warranty nor plead facts sufficient to support an allegation of violation of an implied warranty. 4. Counsel for plaintiff and David Fitzsimons, Esquire, as counsel for defendant discussed the filing of an Amended Complaint which would address the Preliminary Objections raised by defense counsel. 5. It was agreed that an Amended Complaint would be provided to the defendant and thereafter by way of stipulation the parties would agree to the filing of the Amended Complaint. 6. Counsel for the defendant, David A. Fitzsimons, Esquire, subsequently left the firm of Mette Evans and Woodside and new counsel, Jennifer Yankanich, Esquire, has not agreed to the filing of an Amended Complaint. 7. The attached First Amended Complaint does not unduly prejudice or surprise opposing counsel and does not raise any claims not contained within the original Complaint. 8. The attached First Amended Complaint addr.:sses the issues raised by defense counsel in its Preliminary Objections previously filed. 9. Counsel for the defense will have the opportunity to respond by way of additional Preliminary Objections if such objections are warranted. ] O. This case has been lying dormant in part due to the change of counsel for the defendant and the failure of the parties to reach agreem(~nt with regard to an Amended Complaint. 11. The plaintiff is being prejudiced by the delay <md therefore seeks approval from the court for the filing of the Amended Complaint. WHEREFORE, plaintiff prays that this Honorable Court will grant this Petition to File an Amended Complaint in this matter. Respectfully submitted, ~~ R. Mark Thomas., Esquire ID# 4]301 ] 0] S. Market Street Mechanicsburg, PA 17055 (7]7) 796-2]00 '. PLAINTIFF'S EXHIBIT NO.1 ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIA nON 2 LIBERTY A VENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business: before the court, please contact our office. All arrangements must be made at least 72 hours prior 1:0 any hearing or business before the court. You must attend the scheduled conference or hearing. ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT AND NOW, comes the Plaintiff, Annick Barninger, by and through her counsel, R. Mark Thomas, Esquire, and respectfully represents: I. Plaintiff, Annick Barninger, is an adult individual currently residing at 2401 Cope Drive, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant, Haubert Homes, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 15 Central Boulevard, Camp Hill, Cumberland County, PAl 70 I I. 3. Defendant was the owner and builder ofa residential home at Lot #1, Ashcombe Farms, located in Upper Allen Township and which now has a r,~sidential address of 2401 Cope Drive, Mechanicsburg, PAl 7055. 4. While the new home on Lot #1 was still under construction Plaintiff entered into an agreement to purchase the to be completed home from Defendant for $199,300,00. (A copy of the Agreement of Sale is attached hereto, incorporated herein and market Plaintiffs Exhibit I). 5. At settlement, which occurred after an occupancy permit was issued but before construction was completed, Defendant or his agent and/or employee provided Plaintiff with a written express one (l) year warranty which applied to the newly built home which Plaintiff purchased. (The relevant portions of the written express warranty are attached hereto and incorporated as Plaintiff s Exhibit 2). COUNT I BREACH OF CONTRACT 6. Paragraphs I through 5 are incorporated herein as if set forth at length. 7. Defendant negligently constructed the house and otherwise failed to construct the house in an acceptable workmanlike manner. 8. The Defendant's negligent and unworkmanlik,~ construction consisted of the following: (a) Defendant improperly applied, or negligently failed to apply concrete sealer to the outside of the subsurface concrete and masonry block foundation walls; (b) Defendant improperly and negligently constructed the footer drains around the foundation walls; (c) Defendant improperly and negligently installed and compacted the earth backfill around the foundation walls; (d) Defendant improperly and negligently backfilled an underground utility trench extending from the driveway to the south side of the house; (e) Defendant improperly and negligently pav,~d the driveway so as to leave a metal pipe and utility lid protruding several inches above the elevation of the paved driveway; (I) Defendant improperly and negligently did the final grading on the east side of the house; and (g) Defendant improperly and negligently installed and primed the molding around the garage doors. 9. As a direct result of Defendant's negligent and unworkmanlike construction Plaintiff has been caused to suffer the following damages: (a) Plaintiffs basement walls are seeping water and the perimeter basement waterproofing system is not working properly; (b) The front yard is collapsing and needs to be excavated, including under the driveway, the utility lines need to be inspected for damage and the entire front area will need to be properly backfilled, graded and seeded; (c) The concrete sidewalk from the driveway to the front door currently has a void space underneath due to subsidence and erosion caused by improper backfilling and compaction; (d) A portion of the paved asphalt driveway has a large, deep depression due to improper backfilling and compaction of the earth under the driveway. In addition, a metal pipe with a diarneter of 4 to 6 inches protrudes above the paved driveway by several inches causing an unsightly and potentially dangerous condition; (e) The paint on the garage door and molding surrounding the garage door is pealing and needs to be scraped, primed and repainted; and (I) Additional top soil for grading to finished grade on the eastern side of the house is necessary to direct water away from the structure. 10. The costs to repair these damages is $ 19,798.50. 11. Plaintiff incurred incidental darn ages in the amount of $570.00. WHEREFORE, Plaintiff seeks damages from Defend<mt in the amount of $20,368.00 plus costs and such other relief as the court deems appropriate. COUNT II BREACH OF EXPRESS WARRANTY 12. Paragraphs I through I I are incorporated herein as if set forth at length. 13. As part of the Purchase Agreement pertaining to the purchase of a newly built house Defendant gave Plaintiff certain written express warranties. (See Plaintiffs Exhibit 2). 14. The relevant express warranties included the following: (a) Defendant promised to repair asphalt settling that exceeded normal settling depressions; (b) Defendant promised to correct the foundation walls if there are conditions that permit water to enter the basement; and (c) Defendant promised to correct the waterproofing system installed if water enters the basement. 15. Defendant has breached its express warranty by refusing to repair the driveway asphalt, the improperly backfilled foundation walls, the improperly installed footer drainage system and the improperly applied, or failure to apply, waterproofing system. 16. Plaintiff has notified Defendant of the existing warranty claims on numerous occasions, but Defendant has failed or refused to comply with the warranty. WHEREFORE, Plaintiff seeks damages from Defendant in the amount of $20,368,00 plus costs and such other relief as the court deems appropriate. COUNT III BREACH OF IMPLIED WARRANTY I 7. Paragraphs I through 16 are incorporated herein as if set forth at length. 18. Defendant is a builder-vendor who buys land and builds homes upon that land for purpose of sale to the general public. 19. Defendant held himself out to Plaintiff as having the necessary expertise to produce a house for Plaintiff that would be a suitable dwelling. 20. Plaintiff justifiably relied upon Defendant's experience and skill to the effect that in exchange for payment in the amount of $199,300.00 she would receive a home which would be a suitable living unit. 2 I. Under Pennsylvania law a builder-vendor impliedly warrants that the home built for Plaintiff would be constructed in a reasonably workmanlike manner and that it would be fit for habitation. 22. Defendant has breached this implied warranty since the house in question was not built in a reasonably workmanlike manner and is not a suitable living unit for the following reasons: (a) Defendant improperly applied, or negligently failed to apply concrete sealer to the outside of the concrete and masonry block foundation walls; (b) Defendant improperly constructed the footer drains around the foundation walls; (c) Defendant improperly backfilled the foundation walls; (d) Defendant improperly backfilled an und,~rground utility trench extending from the driveway to the south side of the house; (e) Defendant improperly paved the driveway so as to leave a metal pipe and utility lid protruding several inches above the elevation of the paved driveway; and (I) Defendant improperly did the final grading on the east side of the house; and (g) Defendant improperly installed and primed the molding around the garage doors. 23. As a direct result of Defendant's breach of implied warranty by failing to build Plaintiffs house in a reasonably workmanlike manner Plaintiff has been caused to suffer the following damages: (a) Plaintiffs basement walls are seeping water and a perimeter basement waterproofing system needs to be installed which would include labor and proper backfilling around foundation walls; (b) The expense of digging out the south side yard, inspection of utility lines for damage caused by improper backfill, the repair of utility lines if necessary and the cost of properly backfilling this area; (c) The expense of repairing the concrete sidewalk which currently has a void space underneath due to Defendant's improper backfilling at time of construction; (d) The expense of removing paved asphalt from the driveway, properly compacting the earth under the driveway to avoid future depressions and/or subsidence, repair of the protruding metal pipe so that it is flush with the new asphalt which will need to be installed; (e) The expense of removing the chipped paint from the garage door and trim, as well as the cost of priming and painting the trim; and (I) The expense of additional top soil and the grading of the topsoil to finished grade on the eastern side of the house WHEREFORE, Plaintiff seeks damages from Defendant in the amount of $20,368.00 plus costs and such other relief as the court deems appropriate. Respectfully submitted, ~~ R. Mark Thomas, Esquire ID# 41301 101 S. Market Street Mechanicsburg, P A 17055 (7 I 7) 796-2 I 00 VERIFICATION I verify that the statements made in the fureguing document are true and correct. I understand that false statements herein are made subject tu the penalties of 18 Pa. C.S. ~4904. relating to unswom falsification to authorities. Date: ~. .,,/. O~ /2~--~?./4,"'r - , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 81 82 13 84 85 H 87 STANDARD AGREEMENT IfOJl THE ~ALE OF REAL ESTATE 'lbil Corm recommear:I' ':I apptoYed fot, but nOl ~trlcted 10 use by, the membm Of Iht ft,nIllYt~i. J. ""1Cladon or REALTORS. (PAR) A1S Residential "0-0 . PA LICENSED BROKER AGENTFORSELLER .E.€A ,qn~"""<1"nD ~.E. ADDRESS 1"'1.N. 'R...(4-,.........rPf1-I. _iLJ..IH,) /'"]()/9 SUBAGENT FOR SELLER' , ADDRESS AGENT FOR BUYER -r~ ffsVe~~~ -::me:.., ADDRESS "",,07.5 _'__' ____ /7.'1' --$ PH 7f.6 -t:>O.55 FAX .t.I.'t.:J..,.)....!UIr' PH FAX PH FAX 763-7.500 7'8-6.:J.9a I. t~fs lIgreement, dated I9UYU:5i.;2. ~ /"199 SELLER(S): ,t..!c", b~.. f /-.Itn1'I~'" Tnt" , , Is between 1 2 3 4 5 . 7 8 I 10 11 12 13 14 15 18 17 18 11 20 21 22 23 24 26 28 27 28 21 30 31 32 33 34 35 36 37 38 31 40 41 42 43 44 46 41 41 48 41 50 51 52 63 54 66 II 61 61 61 80 11 H U 14 10 H 11 Add..... /.5 Ce,.,fro..l Rau..!el.l2.,A r_ ....0 /d.-II PA Zip Code 17011 hereaRer "Seller," and BUYER(S): Ann~.r~k' r: ~"'Y1/I1"I:J.:tI.'- Address S..z.;z6 MPqd"..,.uh,,,,,.,,f ./J..;ve.. M,,.j,"">Q;'~trL~ -0."'9 ZII.Code /7"-"'{5 hereaRer"Buyer." 2. PROPERTY (1-98) Seller hereby agrees se'\. and couvey to Buyer, who hereby agrees to purchase: ALL THAT CERTAIN lot or piece of rou.., with bulldin and Improvements thereou ereeJed, If any, kuown as, c:ii''7!OI ,..., Ve.... ~r #"/ (,h7"nI.,., fd-.- "';) Me~~t::"t:""1J In the +.....uJ-n..,i'}:p of Us>"...:~IIAI"I County of LL r VI in the Commonwealth of Pennsylvania, Zip Code 17c>.< <' Identification (e.g., Tax ID#; Parcel #; Lot, Block; Deed Book, Page, Recording Dat,~) 3. TERMS (1-98) (A) Purchase Price O'1;.,/;:nt:;':~;;)J""7y-nh.., -fAOU:5aA'1d Dollan which shall be paid to Seller by Buyer as follows: (B) Cash or check at signing this Agreement: ee) Cash or check on or before: (D) (E) Cash, cashier's or certified check at time of settlement: ~r ''''ri''-''lCvi' , (..(.....-,,,....,., / $ ~ $ $ TOTAL $ ~~.t') 19713~ -.J <i"lJ 3ot> (I') (G) (H) (I) Deposits 10 be held hy Agent for Seller. unless otherwise stal~here: Wrillen approval of Seller to be on or before: :~ 3 ~<j Settlement to be made on or before: / ~ ~ / Conveyance from Seller will be by fee simple deed of special warranty unless Cltherwise stated here: (1) Payment of transfer taxes will be divided equally between Buyer and Seller unlc:ss otherwise staled,here: (K) Anime of settlement, the following shall be adjusted pro-rata on a daily basis he:tween Buyer and Seller, reimbursing where applicable: taxes; rents; interest on mortgage assumptions; condominium fees and homeowner association fees. if any; water and/or sewer rents, if any, together with any other lienable municipal 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: 4. FlXTURES AND PERSONAL PROPERTY (1-98) (A) INCLUDED in this sale and purchase price are all exisling ilems pennanently inslalled in Ihe Prnperty. free of liens, including plumb- ing; heating; lighting fixtures (including chandeliers and ceiling fans); water treatment systems; pool and spa equipment; garage door openers and transmitters; television antennas; shrubbery, plantings and unpotted trees; any remaining heating and cooking fuels stored on the Property at the time of settlement; wall to wall carpeting; shades, blinds, window covering hardware; built-in air conditionen; built.in appliances; and the range/oven un ess otherwise stated. Also included: <t!- ( i fi . (B) s: , fu., '" S - ..1r..w........... ,.,,'" ;. <S.;';J -I,. b~ 5. SPECIAL CLAUSES (1-98) (A) ~' Buyer and Seller acknowledge having received a statement of their respective estimated closing costs before signing this Agreement of Sale. (B) 0 Buyer acknowledges receipt of Seller's Property Disclosure Statement befCl,re signing this Agreement, if required by law. (See Notice, Infonnation Regarding the Seller's Property Disclosure Act.) (C) ~ Buyer acknowledges receipt of the Deposit Money Notice (for cooperative s~lles when Agent for Seller is holding deposit money) before signing this Agreement. (D) The followtng are 8 part of this Agreement if checked: o Limited Duat Agency Addendum (PAR Fonn 140) 0 Settlement of Other Property Contingency o Sale & Settlemeot of Other Property (PAR Fonn 133) Contingency Addendum (PAR Fonn 130) 0 Tenant-Occupied Property Addendum (PAR Fonn TOP) o Sale & Settlemenl of Other Property Conlingency 0 with Right to Continue Marketing Addendum 0 (PAR Fonn 131) 0 5...6je<:.--f..,to ~er ~?rolla.-/ 0.(' o-/t ea.birle.is.J ~n~""~P? f"/n/s~ /?'Ia_ie-r;als indud:"j po.J,.,f c.,dar. '[3.:...s4!.f'YIen-t kOi/1 be. .t,.e-e- of' Y/'1uoI aAc;/ dr.::J. Buyer 1nI11a1s: #$ Ii ....~ -'-don of REALTORS" ...........................,...,.. AIS Residenllal Page I of 8 Seller InIt1a1a: COPYRIGHT PENNSYLVANIA ASSOCIATION OP REALTORSIII998 '/98 .. II 70 71 72 73 74 75 78 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 18 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 , 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 "6 137 138 139 140 141 142 143 144 145 146 147 148 6. MORTGAGE,CONTINGENCY(1.fIA1' /'.' " ;;,,",'. o 'WAIVED. .1bis sale is Nar con, ,nt on mortgage financing. Ji( ELECfED " . . (A) This sale is contingent upon Buyer obtaining mortgage financing as follows: I. Amount of mortgage loan $ /.sq,.".,.,.., , 2. Minimum Tenn - years ' '. 3. '!Ypeofmongage ~i,:% Idl!U1 -:::.",;"..-1- i",vt!!~.f"",..~--f f""D'-~ 4. Interest rale /0 %; h ever, Buyer 10 accept the interest ralte .. may ~tted the morilPlle ....der. not to exceed a maximum interest rate of %. 5. DiSCOunt points, loan origination, loan placement and other fees charged hy tb, lender as a percentage of the mortgage loan (excluding any mortgage insurance premiums or VA funding fee) not to exceed % of the mortgage loan. The interest rate and fees provisions required by Buyer are satisfied if a mortgage Il~nder makes available to Buyer the right to guarantee an interest rate at or below the Maximum Interest Rate specified herein with the percentage fees at or below the amount specified herein. Buyer gives Seller the right, at Seller's sole option and as permiued by the lending instituti.[}n and applicable laws. to contribute financially, without promise of reimbursement, to the Buyer and/or lender to make the above terms avaihllble to Buyer. (B) Within]O days of the execution of this Agreement, Buyer shall make a completed, written mortgage application 10 a responsible mortgage lend- ing institution through the office of Agent for Buyer, if any, otherwise through the office of Subagent for Sener, if any, or Agenl for Seller, if any. This Agent Is authorized 10 communicate with the lender for the purposes ..r assisting in the mortgage loan process. (C) I. Upon receipt of a mortgage commitment, Buyer and/or Agent will promptly deliver a copy of the commitment to Agent for Seller, if any, otherwise to Sener. I 2. Mortgage commibnent dale / ~// $,/ 'fq . If a written commitment is not received by Agent for Seller, if any, otherwise by Seller, by the above date, Buyer and Seller agree to extead the commitment date undl Seller te.... m1nates thJs Agreement In wrldng. 3. Seller has the option to tenninate this Agreement in writing, on or after the mortgage commitment date, if the mortgage commitmenl: a. Is not valid until the date of settlemenl, OR h. Is conditioned upon the sale and settlement of any other property, OR c. Contains any other condition not specified in this Agreement. 4. In the event Seller does not terminate this Agreemenl as provided above, Buyer has the option to tenninate this Agreement in writing if the mortgage commitment: a. Is not obtained by or valid until the date of settlemen~ OR b. Is conditioned upon the sale and settlement of any other property which do not occur by the date of settlement, OR c. Contains any other condition not specified in this Agreement which Buyer is unable to satisfy by the date of settlement. 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 shall be returned to Buyer. Buyer will be responsible for any premiums for mechanics lien insurance and/or title search, or fee for cancellation of same, if any; AND/OR any premiums for flood insurance and/or fire insurance with extended coverage, insurance binder charges or cancellation fee, if any; AND/OR any appraisal fees and charges paid in advance to mortgage lender. (D) If the mortgage lender requires repairs to the Property, Buyer will, upon receipt, deliver a copy of the mortgage lender's requirements to Agenl for Seller, if any, otherwise to Seller. Seller shall, within 5 days of receipt of the lender"s requirements, norify Buyer whether Seller shall make the required repairs at Seller's expense. I. If Seller chooses 10 make repairs, Buyer shall accepl the Property and agree to the RELEASE set forth in paragraph 26 of Ihis Agreement. 2. If Seller choos~s not ro make the required repairs, Buyer will, within 5 days, notify Seller in writing of Buyer's choice 10 tenninale the Agreement of Sale OR make the required repairs at Buyer's expense and with SeHer's pennission, which shall not be unreasonably with- heid. If Seller denies Buyer pennission to make the required repairs, Buyer may, within 5 days of Seller's denial, tenninate this Agreement. If Buyer terminates this Agreement, all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. (E) SeUer Assist Sill Nar APPLICABLE o APPLICABLE. Seller shall pay: o $ ,maximum, toward Buyer's costs as permitted by the mortgage lender. o J.., .f,. 88 61 70 71 72 73 74 75 78 77 78 71 eo 81 82 83 84 85 88 87 H 89 10 11 12 93 14 95 98 17 98 19 100 101 102 103 104 105 . 106 107 108 109 110 111 112 113 114 115 116 117 118 111 120 121 122 123 124 125 128 117 128 121 130 FRANA, IF APPLICABLE (F) It is expressly agreed that notwithstanding any other provisions of this contrac~ Buyer shall not be obligated to complete the purchase of the Property described he in or to incur any penalty by forfeiture of earnest money deposits or otherwise u s Buyer has been given, in accor~ dance with HUDIFHA 0 A requirements, a written statement by the Federal Housin,g Commission ,Veterans Administration, or a Direcl Endorsement Lender setting h the appraised value of the Property of not less than $ (the dollar amount to be inserted is the sales price' as state the Agreement). Buyer shall have the privilege and optio f proceeding with consummation of the con- tract without regard to Ihe amount of appraised valuation. The appraised valuation is ved at to determine the maximum mortgage the Department of Housing and Urban Develo ent will insure. HUD does not warrant th alue nor the condition of the Property. Buyer should satisfy himselflherself that the price and condit! of the Property are acceptable. Warning: Section 1010 of TItle 18, I.S.C., Dep nt.of Housing and Urban velopment provides, "Whoeverfor the purpose of. . . influ- encing in any way the action of such department. . . ma , passes, utters or blishes any statement knowing the same to be false. . . shall be fined not more than $5,000 or imprisoned not more than tw ears, or bo ," (0) U.s. Department of Housing and Urhan Development (HU 0 CE TO PURCHASERS: THE IMPORTANCE OF OME INSPECTION HUD does not warrant the condition or a property. (See No' es an formation on Property Condition Inspeclions.) (H) Certification We the undersigned, SeIJer(s) and Buyer(s) to this tran crion each certify that the terms of this contract for purchase are true to the best of our knowledge and belief, and that an ther agreement ente into by any of these parties in connection with this transac- tion is attached to this Agreement of Sale. 7. INSPECTIONS (1-98) (A) Seller hereby agrees to permit inspections by orized appraisers, reputable certifiers, ins r's representatives, surveyors, municipal officials and/or Buyer as may be required by the I ing institutions, if any, or insuring agencies. Selle urther agrees to permit any other inspections 140 required by or provided for in 'the te of this Agreement. (B) Buyer reserves the right 'to make a -settlement walk-through inspection of the Property. Buyer's ri t 10; make this inspection is not waived by any other provision of this reement. (C) Seller will have heating an I utilities (including fuel(s)) on for the inspections. 8. PROPERTY INSPECTION CONTINGENCY (1-98) o WAIVED. Buyer understands that Buyer has the option to request inspections of the Property (see Property Inspection and Environmental Notices). BUYER WArvES THIS OPTION and agrees to the RELEASE set forth in par"graph 26 of this Agreement. Buyer Inldal.: e AIS Residential Page 2 or 8 Seller Initials: 131 131 133 134 135 136 137 138 139 141 142 143 144 145 148 147 148 '49 11ft 151 152 153 15. 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 115 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 23. 235 236 237 238 239 240 241 242 243 244 245 )if .EUlCTED/..... , (A) WJdIin..s.d,.L. days of the execu' of this Agreement, Buyer, at Buyer's expense, may clv , In have inspections and/or certification. com- pleted by licensed or CJilierwise _: ~Jified professionals (see Property Inspection and E .>nmentjI Notices}. Other J'(Ovisions of this Agreement may provide for inspections and/or certifications that are not waived or altered by Buyer'selection here. If Buyer is nol satisfied '-"" with the condition of the Property as stated in any written report, Buyer will, within the time given for completing Inspections: p.. Option 1 I. Accept the Property with the infonnation stated in the repoJ1(s) and agree to the RELEASE set forth in paragraph 26 of this Agreement. OR 2. Terminate the Agreement of Sale in writing by notice to Agent for Seller, if any, otherwise to Seller, within the time given for inspection, in which case all deposit monies paid on account of purchase price shall he returned promptly to Buyer and Ihis Agreement will be NULL and VOID. o Option 2 1. Accept the Property with the information slated in the report(s) and agree to the RELEASE set forth in paragraph 26 of this Agreement, UNLESS the total cost to correct the conditions contained in the report(s) is more than $ 2. If the tolal cost to correct the conditions contained in the report(s) EXCEEDS the amount specified in paragraph 8(A) (Option 2) 1, Buyer will deliver the report(s) to Agent for Seller, if any, otherwise to Seller, within the time given for inspection. a. Scller will, within _ days of receiving the report(s), inform Buyer in writing of Seller's choice to: 1) Make repairs before settlement so that the remaining cost to repair conditions contained in the report(s) is less than or equal to the amount specified in paragraph 8 (A) (Option 2) I. 2) Credit Buyer at settlement for the difference between the estimated cost of repairing the conditions contained in the report(s) and the amount specified in paragraph 8 (A) (Option 2) I. This option must be acceptable to the mortgage lender. if any. 3) Not make repairs and not credit Buyer at settlement for any defects in conditions contained in the report(s). b. If Seller chooses to make repairs or credit Buyer at settlement as specified in paragraph 8 (A) (Option 2) 2. Buyer shall accept the Property and agree to the RELEASE set forth in paragraph 26 of this Agreement. c. If Seller chooses not to make repairs and not to credit Buyer at settlement, or If Seller falls to choose any option within the time given, Buyer will within _ days: I) Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR 2) Terminate the Agreement of Sale in writing by notice to Agent for Seller, if any, otherwise to Seller, in which case all deposit monies paid on account of purchase price shall be returned promptly 10 Buyer and this Agreement of Sale will be NULL and YOID. (B) Buyer's failure to exercise any nf Buyer's nptlons within the time limits specified in this paragraph shall constitute a WAIVER of this contingeney and Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement. 9. WOOD lNFFSTATION CONTINGENCY (1-98) )i( WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for wood infestation by a certified Pest Control Operator. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 26 of this Agreement. o ELECTED (A) Within _ days of the execution of this Agreement, o Buyer, at Buyer's expense, o Buyer, at Seller's expense, not to exceed $ , shall obtain a written "Wood-Destroying Insect Infestation Inspection Report" from a cc:rtified Pest Control Operator and will deliver it and all supporting documents and drawings provided by the Pest Control Operator to Agent for Seller, if any, otherwise to Seller. The report is to be made satisfactory to and in compliance with applicable laws, mortgage and lending institutions, and/or Federal Insuring and Guaranleeing Agency requirements, if any. The inspection will include all readily visible and accessible areas of all structures on the Property except the fol. lowing structures, which will not be inspected: (B) If the inspection reveals evidence of active infestation(s), Seller agrees, at Seller's expensl~ and before settlement, to treal for active infestation(s), in accordance with applicable laws. (C) If the inspeclion reveals damage from active infestation(s) or previous infestation(s), Buyer, at Buyer's expense, has the option to obtain a writ- ten report by a professional contractor, home inspection service, or structural engineer thllt is limited to structural damage to the Property caused by wood-destroying organisms and a proposal to repair the damage. Buyer will deliver Ithe structural damage report and corrective proposal to Agent for Seller, if any, otherwise to Seller, within _ days of delivering the original inspection report. . (D) Within 5 days of receiving the structural damage report and corrective proposal, Seller shaH advise Buyer whether Seller will repair, at Seller's expense and before settlement, any structural damage from active or previous infestation(s). (E) If Seller chooses to repair structural damage revealed by the report, Buyer agrees to acceptlhe Property as repaired and agrees to the RELEASE sel forth in paragraph 26 of this Agreement. (F) If Seller chooses not to repair structural damage revealed by the report, Buyer, within 5 days of receiving Seller's notice, will notify Seller in writing of Buyer's choice to: I. Accept the Property with the defects revealed by the inspection, without abatement of price and agree to the RELEASE sel forth in para- graph 26 of this Agreemenl, OR 2. Make the repairs before settlement, ifrequired by the mortgage lender, if any, at Buyer's expense and with Seller's permission. which shall not be unreasonably withheld, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement If Seller denies Buyer permission to make the repairs, Buyer may, within 5 days of Seller's denial, terminate this Agreement. If Buyer terminates this Agreement. all deposil monies paid on account of purcha:~e price shall be returned promptly to Buyer and Ihis Agreement of Sale will be NULL and YOID. OR 3. Terminate this Agreement, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and 'hi. Agreement of Sale will be NULL and YOlO. (0) Buyer's failure to exercise any of Buyer's options within the time limits specined in this paragraph shall constitute a WAIVER of thlli contingency and Buyer accepts the Property and agrees to the RELEASE set forth In paragraph 26 of this Agreement. 10. CERTIFICATE OF OCCUPANCY (1-98) o NUT APPLICABLE ~ APPLICABLE (A) Buyer and Seller acknowledge that a certificate permitting occupancy of the Property may be required by the municipality and/or govern- mental authority. (B) If a certificate is required, SeUer shall, at Seller's expense and within _ days of the execution of this Agreement, order the certificate for delivery to Buyer on or before settlement. (e) In the event repairs/improvements are required for the issuance of the certificate, Seller shall, within 5 days of Seller's receipt of the require- ments, notify Buyer of the requirements and whether Seller shall make the required repairs/improvements at Seller's expense. (D) If Seller chooses not to make the required repairs/improvements, Buyer will, within 5 days, notify Seller in writing of Buyer's choice 10 terminate the Agreement of Sale OR make the repairs/improvements at Buyer's expense and with Seller's permission, which shaJl not be unrea- sonably withheld. If Seller denies Buyer permission to make the required repairs, Buyer may, within 5 days of Seller's denial, terminate this Agreement. If Buyer tenninates this Agreement, all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. II. RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT NOTICE REQUIRED FOR PROPERTIF.s BUILT BEFORE 1978 (1-98) \ .. NUT APPLICABLE ) o APPLICABLE (A) Seller represents that: (check 1 OR 2) 01. Seller has no knOWledge concerning the presence of lead-based paint and/or lead-based paint hazards in or about the Property. 02. Seller has knowledgcfof the presence of lead-based paint andlor lead-based paint ha:zards in or about the Property. (Provide the basi" for determining that lead-based paint and/or hazards exist. the location(s), the condition of the painted smfaces, and other available informa- tion concerning Seller's knowledge of the presence of lead-based paint and/or lead based paint hazards.) Boyer Initials: / ~ , AJS Residential Page 3 nf 8 Seller InItials: ". 150 151 152 153 154 155 158 157 158 159 160 181 1&2 183 164 165 166 167 168 169 170 171 172 173 17< 175 171 177 178 171 180 181 182 183 184 185 188 187 188 189 190 19' 192 193 194 195 19' 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 2t7 218 218 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 238 237 238 239 240 241 242 243 244 245 / 2441 247 248 241 250 251 252 253 2'4 255 1.56 257 258 2'9 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 278 277 278 279 280 281 282 283 284 285 286 287 12. 288 289 290 211 292 293 294 295 210 297 298 299 300 301 302 303 304 305 308 307 308 309 310 311 312 313 314 315 318 317 318 319 320 321 322 323 324 325 ',Lv! ".' !ltl,ld .,'J!' , t's.., (8). 1tecorddeporls (check I OR?" tJ.1. $ell~r has no rePf>1t:! or re6>.. ""rtaining t~ lead-based paint and/or lead-baled paint ~ lio or 'F'!!~, ~'. . 02. Seller has provided Buyer with oil available records and reports pertaining to lead-based paint and/or lead'bosed paint hazards in or about the Property. (List documents) /;141' 247 241 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 284 265 281 287 288 289 270 271 272 273 274 275 278 271 278 271 280 281 212 213 214 285 281 217 281 211 210 211 212 213 214 2. 2" m 211 26 300 301 312 303 304 301 311I 307 301 30' 310 311 312 313 314 315 31. 317 318 311 320 321 322 323 324 321 311 (C) Buy.r'. Acknowledgment . 0 I. Buyer has received the pamphlet Protect Your Familyfrom Lead in Your Hom~! and has read the Lead Warning Statement contained in this Agreement (See Environmental Notices), Buyer's Initials Date . 02. Buyer has reviewed Seller's disclosure of known lead-based paint andlor lead-based paint hazards. as identified In paragraph Il(A) and h..IS received the records and'reports pertaining to lead-based paint and/or lead-based paint hazards identified in paragraph 11(8), Buyer's Initials , Date (D) RISK ASSESSMENTIINSPECTlON. Buyer acknowledges thaI before Buyer i. obligated to buy a residential dwelling built befnre 1978. Buyer has a 10 day period (unless Buyer and Seller agree in writing to a different ~eriod of time) to conduct a risk assessment or inspection of the Property for the presence of lead-based paint and/or lead-based paint hazards. ~ WAIVED. Buyer understands that Buyer has the right to conduct a risk assessment or inspection of the Property 10 detcnnine the presence uf lead.based paint and/or lead-based paint hazards. BUYER WAIVES THIS RIGHT and agrees to the RELEASE set forth in paragraph 26 of this Agreement. o ELECTED I. Buyer. at Buyer's expense, chooses to obtain a risk assessment andlor inspection of the Property for lead-based paint and/or lead-based paint hazards. The risk assessment andlor inspection shall be completed within _ days of the execution of this Agreement-of Sale (insert "10" unless Buyer and Seller agree to a different period of time). 2. Within th. time ..t forth above for obtaluiog th. ri.k ......m.ot and/or Inspection of the Property for lead-based paint andlor lead-based paint ~ards" Buyer ,may deliver to Agent for Seller, if any, otherwise to Seller, a written list of the specific hazardous conditions cited in the repon and those corrections requested by Buyer, along with a copy of the risk assessment and/or inspection repon. 3. Seller may, within _ days of receiving the list and repon(s), submit a written corrective proposal to Buyer. The corrective proposal will include, but not be limited to, the name of the remediation company and a completion date for corrective measures. Seller will pro- vide cenification from a risk assessor or inspector that corrective measures havc~ been made satisfactorily on or before the completion dale. 4. Upon receiving the corrective proposal, Buyer, within 5 days, will: a. Accept the corrective proposal and the Propeny in writing, and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. 5. Should Seller fail to submit a written corrective proposal within the time set forth in paragraph II(D)3 of this Agreement, then Buyer, within 5 days, will: a. Accept the Property in writing, and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Terminate this Agreement of Sale in writing, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and thi. Agreement of Sale will be NULL and VOID. 6. Buy.r'. fallu... to ex.rcise any of Buyer'. options within th. time limits .peclfted In this paragraph .haIl constitute a WArvER of this conllng.ncy and Buyer accepts th. Property and agrees to th. RELEASE set forth In paragraph 26 of this Agreem.nL (E) Certi8catlon By signing this Agreement, Buyer and Seller cenify the accuracy of their respective statements, to the best of their knowledge. RADON CONTINGENCY (1.98) (A) SeUer represents that: (check appropriale response(s)) )!t 1. Seller has no knowledge concerning the presence or absence of radon. 02. Seller has knowledge that the Property was tested on the dates, by the methods (e.g., charcoal canister, alpha track, etc.), and with the results of all tests indicated below: DATE METHOD RESULTS (picoCuries/liter or working levcls) COPIES OF ALL AVAILABLE TEST REPORTS will he delivered 10 Buyer with this Agreement. SELLER DOES Nor WARRANT EITHER TIlE METHODS OR RESULTS OF TIlE TESTS. 03. Scllcr has knowledge that the Property underwcnt radon reduction measure!i on the datc(s) and by the methodes) indicated below: DATE RADON REDUCTION METIIOD o WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for radon by a certified inspector (see Radon Notice). BUYER WArvES TIllS OPTION and agree. 10 the RELEASE set forth in paragraph 26 of this Agreement. ELECTED Buyer, at Buyer's expense, has the option to obtain, from a certified inspeclor, a radon lest of the Property and will deliver a copy of the teat report to Agent for Seller, if any, otherwise to Seller, within ~ days of the execution of this Agreement. (See Radon Notice.) 1. If the test repon reveals the presence of radon below 0.02 working levels (4 picoCurieslliter), Buyer accepts the Property and agrees to the RELEASE sel forth in paragraph 26 of this Agreement. 2. If the test report reveals the presence of radon at or exceeding 0.02 working levels (4 picoCurieslliter), Buyer will, within _ days of receipt of the lest results: Optlnn 1 .. Accept the Property in writing and agree to the RELEASE set forth in paCllgraph 26 of thi. Agreement, OR b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price shall be returned promplly to Buyer and this Agreement of Sale will he NULL and VOID, OR c. Submit a written, corrective proposal to Agent for Seller, if any, otherwise Ito Seller. The corrective proposal will include, but not be limited to, the name of the certified mitigation company; provisions for payment, including retests; and completion date for correc- tive measures. I) Within 5 days of receiving the corrective proposal, Seller will: a) Agree to the terms of the corrective proposal in writing, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of thi. Agreement, OR b) Not agree to the terms of the corrective proposal. ~ (8) ~ .411'3 . 326 Buyer Initials: AIS Resld.ntlal Page 4 of 8 SeU.r initials. / 327 321 321 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 13. 350 351 352 353 354 355 358 357 358 359 360 361 362 363 384 365 366 367 388 361 370 371 372 373 37' 375 376 377 378 379 380 381 382 383 14. 384 385 386 387 388 389 380 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 408 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 2) SIbou1d SeU.. not..,... to the teml~~bth~f?"'i")iv~~ ~~ ,fail to respond within the given time, Buyer will, within ~ day., ccctto.' . ) . . a) Accept the l-.o"..-ty in writing and agree to the RELEASE set forth in r..cagraph 26 of this Agreement, OR b) Terminate this' Agreement in writing, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 358 357 351 351 360 381 312 383 364 385 368 317 388 389 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 388 387 311 389 390 311 392 393 394 316 398 397 398 319 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 418 417 418 411 420 421 422 423 D Option 2 a. Accept the Property in writing and agree 10 the RELEASE set forth in paragraph 26 of this Agreement, OR b. Submit a written, corrective proposal to Agent for Seller, jf any, otherwisc~ to SeJleT. The corrective proposal will include, but not be limited to, the name of the certified mitigation company; provisions for payment, including retests; and completion date for correc. tive measures. Seller shall pay a maximum of $ toward the total cost of remediation and retests. which shall be completed by settlement. I) If the total cost of remediation and retests EXCEEDS the amount specified in paragraph 12(B) (Option 2) b, Seller will, within 5 days of receipt of the cost of remediation, notify Buyer of Seller's choice to pay for the total cost of remediation and retests OR not pay for the total cost of remediation and retests. 2) If the Seller chooses not to pay for the total cost of remediation and retests, Buyer will, within 5 days of receipt of Seller's notification, notify Seller, in writing, of Buyer's choice to: a) Pay the difference between Seller's contribution to remediation and retests and the actual cost thereof, in which case Buyer accepts the Property and agrees to the RELEASE set for;th in paragraph 26 of this Agreement, OR b) Terminate this Agreement, in which case all deposit monies paid on account of purchase price shall he returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. (C) Buyer's failure to exercise any of Buyer's options within the time limits speclfie~ In this paragraph shall eonstitute a WAIVER of this contingency and Buyer accepts the Property and agrees to the RELEASE set forth In paragraph 26 or this Agreement. STATIJS OF WATER (1-98) (A) Seller represents that Ibis property is served by: )If Public Water D On-site Water o Community Water D None D (B) WATER SERVICE INSPECTION CONTINGENCY o WAIVED. Buyer acknowledges that Buyer has the option to request an inspection of the water service for the Property. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 26 of this Agreement. D ELECTED t. Buyer has the option, within _ days of the execution' of this Agreement and at Buyer's expense, to deliver to Agent for Seller, if any, otherwise to Seller, a written inspection report by a qualified, professional water testing company of the quality andlor quantity of the water service. 2. Seller agrees to locate and provide access [0 the on-site (or individual) water sY!item, if applicable, at Seller's expense, if required by the- inspection company. Seller also agrees to restore the Property prior to settlement 3. If the report reveals that the water service does not meet the minimum standards of any applicable governmental authorities and/or fails to satisfy the requirements for quality andlor quantity set by the mortgage lender, if any, then Seller shall, within _ days of receipt of the report, notify Buyer in writing of Seller's choice to: a. Upgrade the water service to the minimum acceptable levels, before settlement, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreemen~ OR b. Not upgrade the water service. 4. If Seller chooses not to upgrade the water service to minimum acceptable levels, Buyer will, within _ days of Seller's notice not to COJTeCt, either: a. Accept the Property and the water service and, if required by the mortgage I(mder, if any, andlor any governmental authority, upgrade the water service before settlement or within the time required by the mortgage lender, jf any, and/or any governmental authority, at Buyer's expense and with Sener's permission, which shan not be unreasonably withheld, and agree to the RELEASE set forth in paragraph 26 of this Agreement. If Seller denies Buyer permission to upgrade the water service, Buyer may, within 5 days of Seller's denial, terminate this Agreement. If Buyer terminates this Agreement, all de:posit monies paid on account of purchase price shall be returned promplly to Buyer and this Agreement of Sale will be NULL and VOID, OR b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and Ibis Agreement of Sale will be NULL and VOID. 5. Buyer's failure 10 exercise any of Buyer's optIons within the time limits speclilled in this paragraph shall constitute a WAIVER of this contingeney and Buyer accepts the Property and agrees 10 the RELEASE set forth In paragraph 26 nf this Agreement. STATIJS OF SEWER (1-98) (A) Seller represents that Property is served by: :g Public Sewer D Individual On-lot Sewage Disposal System (See Sewage Notice I) D Individual On-lot Sewage Disposal System in Proximity to Wen (See Sewage Notice I; see Sewage Notice 4. if applicable) D Community Sewage Disposal System o Ten-acre Permit Exemption (See Sewage Notice 2) D Holding Tank (See Sewage Notice 3) D None (See Sewage Notice I) o None Available/Pennit Limitations in Effect (See Sewage Notice 5) D (B) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY o WAIVED. Buyer acknowledges that Buyer has the option to request an individual on-lot sewage disposal inspection of the Property. BUYER WAIVES rnls OPTION and agrees to the RELEASE set forth in paragraph 26 of this Agreement. D ELECTED I. Buyer has the option, within _ days of the execution of this Agreement and at Buyer's expense, to deliver to Agenl for Seller, if any, otherwise to Seller, a written inspection report by a qualified, professional inspector of the individual on-lot sewage disposal system. 2. Seller agrees to locale and provide access to the individual on-lot sewage dispoSlll system, and, if required by the inspection company, empty the septic tank, at Seller's expense. Seller also agrees to restore the Property prior to settlement. 3. If the report reveals defects thai do not require expansion or replacement of the existing sewage disposal system, Seller shall, within - days of receipt of the report, notify Buyer in writing of Seller's choice 10: a. Correct the defects before settlement, including retests, at Seller's expense, in which case Buyer accepts the Property and agree!; to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Not correct the defects, in which case Buyer will, within _ days of Seller's notice not 10 correct the defects, either: I) Accept the Property and the system and, if required by the mortgage lelllder, if any, and/or any governmental authority, correct the defects before settlement or within the time required by the mortgage lender, if any, andlor any governmental authority, at Buyer's sole expense and with Seller's permission, which shall not be unreasonably withheld, and agree to the RELEASE set forth in paragraph 26 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within 5 daYN of Seller's denial, terminate this Agreement If Buyer terminates this Agree:ment, all deposit monies paid on account of purcha.'le price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and YOlO, OR 2) Terminate this Agreement in writing, in which case a1l deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and YOID. 4. If the report reveals. the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, within _ days of receipt of the repbrt, submit a corrective proposal to Agent for Buyer, if any, otherwise to Buyer. The corrective propo.'lal will include. but not be limited to, the name of the remediation company; provisions for paymeOlt, including retest'l; and completion date for correclive measures. Within 5 days of receiving Seller's corrective proposal, or if no corrective proposal is received within the given time, Buyer will: a. Agree 10 the terms of the corrective proposal, if any, in writing, in which case B:uyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement, OR Buyer Initials: .,4~ Seller Initials: AJS Residential Page 5 of 8 / 424 425 428 427 .28 429 430 431 432 .33 434 435 435 .437 438 439 440 441 442 4.3 444 445 445 447 448 449 450 451 452 453 454 455 456 457 458 459 4tiO 461 462 463 464 465 465 467 468 469 .70 471 472 .73 474 475 476 477 478 479 480 481 482 483 484 .85 488 487 488 489 490 491 492 493 494 495 496 .97 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 518 517 518 519 520 b. Accept the Property anrl the system and, if required by the mortgage lender, if anv, and/or any governmenl8l authority, correct the 'c:itfccts before settlen: ' If within the time required by the mortgage lender, if andlor ~y governmental authority, al Buyer's sole expense and with .;,cller's permission, which shall not be unreasonablly with.....ld. and agree to the RELEASE set forth in para- graph 26 of this Agreement. If Seller denies Buyer permission 10 correct the defect.'i, all deposit monies paid on account of purchnsc price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID, OR c. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price shall be returned promptly [0 Buyer and this Agreement of Sale will be NULL and VOID. 5. Buyer's failure to exercise any of Buyer's options within the time limits spEcified in this paragraph shall constJIute a WAIVER of this contingency and Buyer accepts the Property aod agrees 10 the RELEASE set forth in paragraph 26 of this Agreement. IS. NOfICF..s & ASSESSMENTS (1-98) (A) Seller represents as of Seller's execution of this Agreement, that no public improvement, condominium or homeowner association assessments have been made against the Property which remain unpaid and that no notice by any government or public authority has been served upon Seller or anyone on Seller's behalf, including notices relaling to violations of zoning, housing, building. safety or fire ordinances which remain uncorrected, and that Seller knows of no condition that would constitute violation of any such ordinances which remains uncorrected, unless otherwise specified here: (B) Seller knows of no other potential notices and assessments except as follows: 424 425 4'6 427 428 '29 .30 431 432 433 434 435 438 437 438 439 440 441 442 .43 444 445 448 447 448 449 460 451 452 453 454 455 456 457 458 459 480 461 482 463 464 465 468 487 468 489 470 .71 472 473 .74 475 '76 477 478 479 480 481 .82 483 484 485 488 487 488 489 490 491 492 493 494 495 498 m 488 499 500 501 502 503 504 505 508 507 508 509 510 511 512 513 514 515 516 517 518 &19 520 (C) In the event notices and assessments are received after execution of this Agreement and before setdement, Seller will notify Buyer in writing, within 5 days of receiving the notice or assessment, that Seller shall: I, Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees to the RELEASE set forth In paragraph 26 of this Agreement, OR 2. Nor comply with notices and assessments at Seller's expense, in which casc~ Buyer will notify Seller within 5 days in writing that Buyer shall: a. Comply with the notices and assessments at Buyer's expense and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and YOlO. If Buyer fails to notify Seller within the given time, Buyer accepts the Property and agrees to the RELEASE set forth In paragraph 26 of this Agreement. (D) Buyer is advised that access to a public road may require issuance of a highway occupancy pennit from the Department of Transportation, (E) If required by law, Seller shall deliver to Agent for Buyer, if any, otherwise to Buyer, on or before settlement, a certification from the appropri- ate municipal department or departments disclosing notice of any uncorrected violation of zoning, housing, building, safety or fire ordinances. 16. TITLE, SURVEYS, AND COSTS (1-98) (A) lhe Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing deed restrictions, building restrictions, ordinances! easements of roads, easements visible upon the ground, easements of record, privileges or rights of public service companies, if any; otherwise the title to the above described real estate shall be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. (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, as specified in paragraph 16(A), Buyer shall have the option of taking such title as Seller can give without changing the price or of being repaid ail monies paid by Buyer to Seller on account of purchase price and Seller shall reimbu.rse Buyer for any costs incurred by Buyer for those items specified in paragraph l6(C) and in paragraph 16(0) items (I), (2), (3); and in the latter event there shall be no further liability or obligation on either of the parties hereto and this Agreement shall become NULL and YOlO. (C) Any surveyor surveys which may be required by the Title Insurance Company or the: abstracting attorney, for the preparation of an adequate legal description of the Property (or the correction thereot), shall be secured and paid for by Seller. However, any surveyor surveys desired by Buyer or required by the mortgage lender shall be secured and paid for by Buyer. (D) Buyer shall pay for the following: (I) The premium for mechanics lien insurance and/or title search, or fee for cancellation of same, if any; (2) The premiums for flood insurance and/or fire insurance with extended coverag(~, insurance binder charges or cancellation fee, if any: (3) Appraisal fees and charges paid in advance to mortgage lender, if any; (4) Buyer's customary settlement costs and accruals. 17. ZONING CLASSIFICATION (1-98) Failure of this Agreement to contain the zoning classification (except in cases where the property (and each parcel thereof, if subdividable I is zoned solely or primarily to permit single-family dwellings) shall render this Agreement voidable at the option of the Buyer, and, if voided, any deposits tendered by the Buyer shall be returned to the Buyer without any requirement for court action. Zoning ClassI1Icalion: o ELECTED. Within _ days of the execution of this Agreement, Buyer will verify that the existing use of the Property as is pennitted. In the event the use is not permitted, Buyer will, within the time given for veriftcation, notify Agent for Seller, if any, otherwise Seller, in writing that the existing use of the Property is not permitted and this Agreement will be NULL and YOID, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer. Buyer's f.lI- ure to respond within the given time shall constitute 8 WAIVER of this contingency and all other terms of this Agreement olSale remain in run force and effecl. 18. COAL NOfICE )'l NOT APPLICABLE o APPLICABLE Tl-ns lX>cUMENT MAY Nor SE.U.., CONVEY, TRANSFER, INCLUDE OR INSURE TIlE TITLE TO TIlE COAL AND RIOHTS OF SUPPORT UNDERNEA1lI TIff! SURFACE LAND DESCRIBeD OR REFERRED TO HEREIN, AND mE OWNER OR OWNERS OF SUCli COAl. MAY HAVE THE COMPLm'E LEGAl. RIGHT TO REMOVE AU. SUCU COAl. AND IN mAT CONNECTlON, DAMAGE MAY RESULT TO THE SURFACE OF me LAND AND ANY HOUSE, BUILDING OR ornER STRUcnJRE ON OR IN SUCH lAND. (This notice is set forth in the manner provided in Section I of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges thai he may not be obtaining the right of protection against subsidence resulting from coal mining operations, and that the 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 acknowledgment is made for the purpose of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the umd Conservation Act of April 27, 1966." Buyer agrees to sign the deed from Seller which deed wiIJ contain the aforesaid provision. 19. POSSESSION (1-98) (A) Possession is to be delivered by deed, keys and: I. Physical possession to a vacant building (if any) broom clean, free of debris at day and time of settlement, AND/OR 2. Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is lenant occupied at the execution of this Agreement or unless otherwise specified herein. Buyer will acknowledge existing lease(s) hy initialing said lea.'IC(s) at time of signing of this Agreement of Sale, if Property is tenant occupied. (8) Seller shall not enter into any new leases, written extension of existing leases, if any, or additional leases for the Property without expressed written consent of Buyer. 20. RECORDING (3-85) This Agreement shall not be recorded in the Ollice for the Recording of Deeds or in any other ollice or place of puhlic record and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement. 21. ASSIGNMENT (3-85) This Agreement shall be binding upon the parties, their respective heirs, personal representatives, guardians and successors, and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer shall not transfer or assign this Agreement without the written consent of Seller. 22. DEPOSIT AND RECOVERY FUND (1-98) (A) Deposits paid by Buyer within 30 days of settlement shall be by cashier's or certified check. Deposits, regardless of the fonn of payment and the person designated as payee, shall be paid to Agent identified in paragraph 3(F), who shall retain them in an escrow account until consum- mation or termination of this Agreement in conformity with all applicable laws and regu lations. Agent may hold any uncashed check tendered as deposit pending the acceplaJ1ce of this offer. (B) In the event of a dispute over entitlement to deposit monies, the Agent holding the deposlit is required by the Rules and Regulations of the State 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 return of deposit monies, Agent shall distribute the monies as directed by a final order of court or the written Agreement of the parties. Buyer and Seller agree that, in the event any Agent herein is joined in litigation for the return of deposit monies, the attorneys' fees and costs of the Agent(s) will be paid by the party joining the Agent. Buyer Initials: AIl5 AIS Resldeotial Page 6 of 8 Seller Initials: / (C) A ~,~~ .fund exi8lS to..eimbunc any persOna. who haveoblallwid.aifiM1'civiljudBlllent agatn8l a Pennaylvanla real ..tata . . .ucensee.Owirirfo'fi1llJCl, misrepr, tatioo, or deceit in a real estate transaction and who hv . -een unable to col~ect the jud,gmcnt after exhaust- ing aIJ 1qpoI anqequitable reme.. ,,,For complete details about the Fund, call (717) 783- d, or (~OO) 882-2113 (within Pennsylvania) and (717) 7834854' (outside Pennsylvania), 23. CONDOMINIUM RESALE ACl' NonCE (8-95) )to NOT APPUCABLE D' , APPUCABLE (A) Buyer acknowledges that the Property is a unit of a condominium that is primarily run by a unit owners' association. (B) ~3407 of the Uniform Condominium Act of Pennsylvania requires Seller to furnish Buyer with a Certificate of Resale and copies of the condo- minium declaration (other than plats and plans), the bylaws, and the rules and regulations of the association. (C) Within ~ days of the execution of this Agreement, Seller shall submit a request to the association for a Certificate of Resale and the doc- ument'i necessary to enable Seller to comply with the Act. The Act provides that the association is required to provide these documenls within 10 days of Seller's request. CD) Under the Act, Seller is nOlliable 10 Buyer for the failure or delay of the association 10 provide the Certificate in a timely manner, nor is Seller liable 10 Buyer for any erroneous infonnation provided by the association and included in the Certificate. (E) Buyer may declare the Agreement of Sale VOID at any time before Buyer's receipt of the Certificate of Resale and for 5 days thereafter, OR until seulement, whichever occurs first. Buyer's notice declaring the Agreement void must be in writing; thereafter all deposit monies shall be returned to Buyer. 24. PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) NOTICE FOR PURPOSES OF RESALE ONLY (1-97) ;(f NOT APPLICABLE o APPLICABLE . (A) Buyer acknowledges that the Property is part of a planned communily as defined by the Uniform Planned Community Act. (See Definition of Planned Community Notice for the definition contained in the Act). (B) ~5407(a) of the ACI requires Seller 10 furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws, the rules and reBU' lations of the association, and a Certificate containing the provisions set forth in ~5407(a) of the Act. (C) Within _ days of the execution of this agreement, Seller shall submit a request to the association for a Certificate and the documents nec- essary to enable Seller to comply with the Act. The Act provides that the association is required to provide these documents within 10 days of Seller's request. (0) Under the Act, Seller is not liable to Buyer for the failure or delay of the association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for any erroneous infonnation provided by the Association and included in the Certificate. (E) Buyer may declare the Agreement of Sale VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR until settlement, whichever occurs first. Buyer's notice declaring the Agreement void must be in writing; thereafter all deposit monies shall be returned to Buyer. 15. MAINTENANCE AND RISK OF WSS (1-98) (A) Seller shalJ maintain the Propeny, grounds, fixtures, and any personal property specifically scheduled herein in its present condition, nonnal wear and tear excepted. (B) In the event any system or appliance included in the sale of the Property fails and Seller does not repair or replace the item, SeJlerwill promptly notify Buyer in writing of Seller's choice to: I. Repair or replace the failed system or appliance before settlement or credit Buyer at settlement for the fair market value of the failed sys- tem or appliance (this option must be acceptable to the mortgage lender, if aI1IY). In each case, Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of Ihis Agreement. 2. Make no repairs or replacements, and not credit Buyer at settlement for the fair market value of the failed system or appliance, in which case Buyer will notify Seller in writing within 5 days or before settlement, whichever is sooner, that Buyer shall: a. Accept the Property and agree 10 the RELEASE set forth in paragraph 26 of this Agreement, OR b. Tenninate this Agreement, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will he NULL and VOID. (C) Seller shall bear risk of loss from fire or other casualties until time of settlement. In Ithe event of damage by fire or other casualties to any prop_ erty included in this sale that is not repaired or replaced prior to settlement, Buy€:r shall have the oplion of rescinding this Agreement and promptly receiving all monies paid on account of purchase price or of accepting th~ Property in its then condition together with the proceeds of any insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyer's equitable interest in this Property as of the time of execution of this Agreement. Buyer's failure to exercise any of Buyer's options within the time limits specified In tbis paragraph shall constitute a WAIVER nf this COD- tlngency and Buyer accepts the Property and agrees 10 the RELEASE set forth In paragraph 26 of this Agreement. 26. RELEASE (7-96) - Buyer hereby releases, qull claims and forever discharges SELLER, ALL AGENTS, their SUBAGENTS, EMPLOY- EES, and any OFFICER nr PARTNER of anyone of them and any olher PERSON, FIRM, or CORPORATION wbo may be liable by or Ihronglt them, from any and all claims, losses or demands, IncludIng, bot not limited to, personal Injuries and property damage and all of the consequences thereof, whether now known or not, which may arise from the pn!Sence of termites or other wood-boring insects, radon, lead-based paint bazards, environmental hazards, any defects In the Individual on.lot sewage disposal system or dellclencles In the on.slte water service system, or any defects or conditions on the Property. This release shall survive settlement. 27. REPRESENTATIONS (1-98) (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Agents or their employees are not a part of this Agreement, unless expressly incorporated 01' stated in this Agreement. (B) Ills understood that Buyer has Inspected the Property before signing this Agreemenl of Sale (Including ftxtures and any personal prop. erty speclfieally scheduled herein), or has waived the rlghllo do so, and has agreed to purchase It In Its present cnndlUon unless otherwise stated In this Agreement. Buyer acknnwledges thai the Agents have not made an Independent examlnatlnn or detennlnaUon of the structural soundness of the Property, the age or condition of the compol1lents, environmental conditions, the permitted uses, or of conditions existing In the locale where the Property is situated; nor have the~y made a mechanical Inspection of any of the system!ll contained thereIn. (C) II is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other tenns, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement shall not be altered, amended, changed, or modified except in writing eXI~uted by the parties. (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraphs. 28. DEFAULT-TIME OF THE ESSENCE (1-98) The said time for settlement and all other times referred to for the performance of any of the obligations of this Agreement are hereby agreed to he of the essence of this Agreement. For the purposes of this Agreement, number of days shall be counted from the date of execution, by excluding the day this Agreement was executed and including the last day of the time period. Should Buyer: (A) Fail to make any additional payments as specified in paragraph 3; OR (B) Furnish false or incomplete information to Seller, Agent for Seller, Agent for Buyer, or the mortgage lender, if any, concerning Buyer's legal or financial status, or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment; OR (C) Violate or fail to fulfill and perfonn any other tenns or conditions of this Agreement; then in such case, Seller shall have the option of retaining all deposit monies and other sums paid by Buyer on account of purchase price, whether required by this Agreement or not, only allJ elected below: (Check only one) ~ As liquidated damages. In this event Buyer and Seller shall be released from further liability or obligation and this Agreement shall be NULL and VOID. o On account of purchase price, or as monies to be applied to Seller's damages, or as liquidated damages for such breach, as Seller may elect. In the event of liquidated damages, Buyer and Sener shall be released from further liability or obligation and this Agreement shall he NULL and VOID. 29. AGENT(S) (1-98) II is expressly understood and agreed hetween the parties thai the """ed Agent for Seller, any Subagents, their salespeople, employees, officers and/or partners, are Agent(s) for Seller, and that the named Agenf for the Buyer, their salespeople, employees, officers and/or partners, are Agent(s) for Buyer. If there is no Agent for Buyer, Agent for Seller or Subagl~nt for Seller may perfonn services for Buyer in connec- tion with financing, insurance and document preparation, with written disclosure to Buyer and Seller. III 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 S56 557 558 559 580 561 562 S63 564 565 566 567 568 569 57a 571 572 573 57. 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 S96 597 598 599 800 601 6a2 603 604 605 806 607 6a8 609 610 611 612 613 614 615 816 617 Buyer initials: J IfJ Sell... initials: 621 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 642 543 544 545 546 547 S48 549 550 551 552 S53 554 555 556 557 558 559 560 581 582 563 564 565 566 587 558 869 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 697 598 599 600 601 602 683 504 805 606 607 6a8 809 610 611 612 513 814 815 118 117 AJS Residential Page 7 of 8 / 818 11. 520 621 622 623 624 m 626 627 628 629 630 531 632 633 634 635 636 037 635 839 540 641 m 643 644 645 648 647 648 649 650 651 652 653 654 655 658' 657 658 859 660 861 662 663 884 665 868 887 885 689 870. 871 672 673 674 675 878 877 578 678 680 681 682 583 884 685 686 687 588 889 890 691 892 693 694 895 698 597 898 699 700 701 702 703 704 705 706 707 708 709 710 711 JO. MEDIATlON.(NI8) o NUl' AVAILABLE o WANED. Buyer and Seller ~. 4Ild that. they may choose to mediale at a later dale, sl. ation on the part of any pony to do so. ELECTED" ' Buyer and Seller willtty to resolve any dispute or claim that may <lrise from this Agreement of Sale through mediation, in accordance with the Rules and Procedures of the Home Sellers/Home Buyers Dispute Resolution System. Any agreement reached through a mediation conference and signed by the parties will be binding. (8) Buyer and Seller acknowledge that they have received, read, and understand the Rules and Procedures of the Home SellersIHome Buyers Dispute Resolution System, (See Mediation Notice,) (C) This agreement to mediate disputes arising from this Agreement shall survive settlement. ... 011 520 621 622 m 624 615 626 627 628 629 Buyer and Seller acknowledge that they have read and understand the notices and explamdory Information regarding property condition Insp<<- 630 tlons set forth on the back of thlsform. 631 632 633 534 635 636 m m 639 640 841 642 643 644 645 646 647 845 549 850 651 Services to Buyer 852 In conjunction with this Agreement of Sale, by initialing below, Buyer authorizes Subagent for Seller, if any, or Agent for Seller to perform' the following , 653 services on Buyer's behalf: ' 854 655 856 857 855 859 680 801 682 883 584 805 881 ~~ 667 888 809 570 571 . 872 873 574 875 878 on 578 579 000 081 582 883 884 585 888 887 888 859 590 591 m 893 894 596 511 897 598 8911 700 701 702 703 704 708 708 707 708 701 710 711 l' ~ . .1, J a 9~P~te arise, but that the~ will be no oblig~ )1(1. (A) NonCE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return hy facsimile transmlaslon (FAX) of this Agreement of Sale, and all addenda, bearing the signatures or all parties, constitutes acc~!ptance of this Agreement. Parties to this transaction are advised to consult an attorney berore signing ir they desire legal advice. ~ y:. L r7ft!'6:d1./ :::: d... WITNESS BUYER ~f99. I' . A7'~~<l '-7~ DAD; DATE DATE Seller hereby approves the above contract this day of and in consideration of the services rendered in procuring the Buyer, Seller agrees to pay the named Agent for Seller a fee of of/from the herein specified sale price. In the event Buyer defaults hereunder, any monies paid on account shall be divided Seller, , Agent for Seller, but in no event will the sum paid to the Agent for Seller be in excess of the above specified Agent's fee. A.D. WITNESS WITNESS WITNFSS SELLER SELLER SELLER DATE DATE DATE Order TItle Insurance from any reputable ntle Insurance Company. Buyer's Initials . Order Homeowner's Insurance with coverage in the amount of $ Buyer's Initials .. .' Order Fire & Extended Coverage Insurance with coverage in the ~ou~t,of $ Buyer's Initials Order Flood Insurance with coverage in the amount of $ Buyer's Initials Buyer's Services Fee: $ Buyer's Initials Buyer's Initials .,'. SeDer'a AcknowJedgment Seller acknowledges receipt of a separate Buyer's services agreement with Agent' for Seller or Subagent for Seller, Seller'. Initials ".:) Broker'slAlenl'a CertIlIcallons (check all that an! appUcabJe): o H..ardlnl Lead-Based Paint Hazarda Dlsc:losure: Required If Property was built before 1978: The undersigned AlenlS involved in this transaction, on behalf of themselves and their brokers, certify that their statements are troe to the best of their knowledge and belief, Agenls' Acknowledgment: The Agents involved in this transaction have infonned Seller of Seller's obligations under The Residential Lead Point Hazard Reduction Act, 42 V.S.C. 4852(d). and are aware of their re.pon.ihilityto ensure compliance. o Regardlnl FHA Mortlages: The undersigned Agenls involved in this transaction, on hehalf of themselves and their brokers, certify that the tenns 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 these parties in connection with this transaction is attached to this Agreement of Sale, )(! Regardlnl Mediation: The undersigned I 0 Alent for Sener ~ Agent for Buyer 0 Subalent for Sener on behalf of themselves and their brokers, agree to submit to mediation in accordance with paragraph 30 of this Agreement. AGENTFOR SELLER (Company Name). ACCEPTED BY (Sipature of Broker or Salesperson) DATE SUBAGENT FOR SEILER (Company Name) ACCEPTED BY DATE (Slgnarurc of Broker or Salesperson) AGENTFORBUYER(CO~~)~~.-:.-f;:;J ~J::T;te. ACCEPTED BY ~ ~ DATE ~ 7/1" . ofBrokcror ) I .4kA . Buyer InllIaJs: A1S Resldenlla1 PalO 8 of 8 SeD~r InllIaJs: SELLER'S COPY HOMEOWNER M:ANUAL A Maintenance and Warranty Guide for the New Homeowner Presented by HAUBERT HO"'fS~ - Custom Building For Generations HAUBfRT HO"'f~ Inc Custom Building for Generations Dear Homeowner, It has been our pleasure to have played a role in the establishment of your new home. Utilizing today's materials and technology, with its special blend of efficient design, quality craftsmanship, and the ele- gance of your personal taste, we have made your home unique and special from any other home ever built. Our commitment to personal service continues, and we will strive to be of assistance to you when requested. Your home is engineered and designed as a whole-house system, with each product selected and installed to support that system. It is our desire that you be informed about your home as much as possible _ enhancing comfort and el\joyment for many years. Please take the time to read this warranty and maintenance guide. It reviews the basics of home care and how to solve or report warranty concerns. Also, please review all of the individual product literature included in the back cover of this book. Although you may never need to use them, complete aud return all Warranty Registration cards to validate their use with the manufacturer. We wish you many happy years in your new home. Please refer to the information below to contact us during your One Year Limited Warranty. With Sincere Thanks, All of us at Haubert Homes, Inc. YOUR LOCAL OFFICE: TELEPHONE: FAX: WARRANTY CONTACT: Haubert Homes Homeowner Manual Caring for Your Ilorne Haubert Homes has constructed your home with quality materials and the labor of experienced craftsmen. Before our using any material, it must meet our specifications for quality and durability. All work is done under our supervision to attain the best possible results for your investment. A home is one of the last hand.built products left in the world. Once we have assembled the natural and manufactured materials, the components interact with each other and the environment. Although quality materials and workmanship have been used in your home, this does not mean that it will require no care or maintenance. A home, like an autornobile, requires care and attention from day one. General homeowner maintenance is essential to providing a quality home for a lifetime. Homeowner Use and Maintenance Guidelines We are proud of the homes we build and the neighborhoods in which we build. We strive to create long-lasting value. This cannot be achieved unless yoU!, as the homeowner, properly maintain your home and all of its components. Periodic maintenance is necessary because of normal wear and tear, the inherent characteristics of the materials used in your home, and normal service required by the mechanical systems. Natural fluctuations in temperature and humidity also affect your home. Many times a minor adjustment or repair done immediately saves a more serious, time- consuming, and sometimes costly repair later. Note also that neglect of routine maintenance can void applicable limited warranty coverage on all or part of your home. By caring for your new home attentively, you ensure your enjoyment of it for years. The attention provided by each homeowner contributes significantly to the overall desirability of the community. We recognize that it is impossible to anticipate and describe every attention needed for good home care, but we have covered many important details. The subjects covered include components of homes we build, listed in alphabetical order. Each topic includes suggestions for use and maintenance followed by Haubert Homes' limited warranty guidelines. This manual may discuss some components that are not present in your home. Please take time to read the literature provided by the manufacturers of consumer products and other items in your home. The information contained in that material is not repeated here. Although much of the information may be familiar to you, some points may differ significantly from homes you have had in the past. , Haubert Homes Homeowner Manual We make every effort to keep our information current aild accurate. However, if any detail in our discussion conflicts with the manufacturer's recommendations, you should follow the manufacturer's recommendations. Activate specific manufacturer's warranties by completing and mailing any registration cards included with their materials. In some cases, manufacturer's warranties may extend beyond the first year and it is in your best interests to be apprised of such coverages. Haubert Homes Limited Warranty Guidelines Throughout this manual, where the heading "Haubert Homes Limited Warranty Guidelines" appears, it is understood to identify items that are covered and action to be taken by Haubert Homes during the One Year Warranty. Any such acticvities that are required after the first year become homeowner maintenance matters for which Haubert Homes can be consulted and is not responsible. While we strive to build a defect-free home, we are rea.listic enough to know that we may make mistakes or that something in the home may not perform as intended. When either occurs, we will make necessary corrections. In support of this commitment, I laubert Homes provides you with a limited one-year warranty. In addition to the information contained in the limited warranty itself, this manual includes details about one-year material and workmanship standards. The purpose is to let you know what our quality standard is for the typical concerns that can come up in a new home. The manual describes our standards Jor each item and what we will do to remedy items that do not meet our standards. Our criteria for qualifying warranty repairs are based on typical industry practices in our region and meet or exceed those practices for the components of your home. However, we reserve the right to exceed these guidelines if common sense or individual circumstances dictate, without being obligated to exceed all guidelines to a similar d.~gree or for all homeowners. You will receive the signed limited warranty document at your closing. Please read through this infonnation, as well as the service procedures discussed on the following pages. If you have any questions regarding the standards or procedures, contact our office. Our warranty service system is designed to accept written reports of nonemergency items on the jimns provided to you. This provides you with the maximum protection and allows us to operate ejjicielllly, thereby providing faster service to all homeowners. Emergency reports are the only reports accepted by plume. 2 Haubert Homes Homeowner Manual Reporting Procedures All service requests should be put in writing. You may also contact us through the Customer Service section of our website at http://www.hauberthomes.com Sixty-Day Report In order for our service program to operate at maximum efficiency and for your own convenience, we suggest that you wait 60 days before submitting any warranty list. This allows you sufficient time to become settled in your new home and to thoroughly examine all components. Year-Emf Report Near the end of the eleventh month of your materials and workmanship warranty, you should submit a year-end report. We will also be happy to discuss any maintenance ql1estions you may have at that time. Emergency Service As defined by the limited warranty, "emergency" includes situations such as: >- Total loss of heat when the outside temperature is below 45 degrees F. >- Total loss of electricity. (Check with the utility company before reporting this circumstance to Haubert Homes or electrician.) >- Total loss of water. (Check with the water department to be certain the problem is not a general outage in the area.) >- Plumbing leak that requires the entire water supply to be shut off. >- Gas leak. (Contact your utility company or plumber if the leak is at the furnace or water heater supply lines.) For Emergency Reporting During business hours, call your local Haubert Homes office. After hours, or on weekends or holidays, call the necessary trade contractor directly. Their phone numbers are listed on the back cover of this book. 3 Haubert Homes Homeowner Manual Other Warrallty Service If you wish to initiate non emergency warranty service between the 60-day and year-end report, you are welcome to do so by sending in a service request form or writing a letter. We will handle these requests according to the same procedures that apply to the 60-day and year-end reports. ,Kitchell Appliallce Warrallties The manufacturers of kitchen appliances will work directly with you if any repairs are needed for these products. Customer service phone numbers are listed in the use and care materials for each appliance. Be prepared to provide the model and serial number of the item and the closing date on your home. Appliance warranties are generally for one year; refer to the literature provided by the manufacturer for complete information. Service Processing Procedures You can help us to serve you better by providing complete information, including: >- Name, address, and phone numbers where you can be reached during business hours. >- A complete description of the problem, for example, "guest bath~cold water line leaks under sink," rather than "plumbing problem." When we receive a warranty service request, we may contact you for an inspection appointment. Warranty inspection appointments are available during regular business hours. We inspect the items listed in yuur written request to confirm warranty coverage and determine appropriate action. Generally reported items fall into one of three categoriles: >- Trade contractor item >- In-house item >- Home maintenance item If a trade contractor or an in-house employee is required to complete repairs, we issue a warranty work order and the repair technician contacts you to schedule the work. Warranty work appointments are available during regular business hours. W,~ intend to complete warranty work orders within 15 work days of the inspection unless you are unavailable for access. If a back- ordered part or similar circumstance causes a delay, we will kt you know. If the item is home maintenance, we will review the maintenance steps with you and offer whatever informational assistance we can. Haubeli Homes does nol provide routine home maintenance. 4 .di :.i ~, /:j ;l'i." ~ j1j: \;~ Uaubert Homes Homeowner Manual Asphalt Homeowner Care and Maintenance Asphalt is a flexible and specialized surface. Like any other surface in your home, it requires protection from things that can damage it. Over time, the effects of weathu and earth movement will cause minor settling and cracking of asphalt. These are normal reactions to the elements and do not constitute improperly installed asphalt or defective material. Avoid using your driveway for one week after it is installed, by keeping people, bicycles, lawn mowers, and any other traffic off of it. Chemical Spitts Asphalt is a petroleum product. Gasoline, oil, turpentine, and other solvent or petroleum products can dissolve or damage the surface. Wash such spills with soap and water, and then rinse them thoroughly with plain water. . Hot Weather A void any concentrated or prolonged loads on your asphalt, particularly in hot weather. High- heeled shoes, motorcycle or bicycle kickstands, trailers, or even cars left in the same spot for long periods can create depressions or punctures in asphalt. NOllresidential Traffic A void nonresidential traffic such as heavy trucks on your driveway; it was designed for residential use only. Sealcoatillg Exposure to sunlight and other weather conditions will fade your driveway, allowing the surface gravel material to be more visible. This is a normal condition and not a material or structural problem. You do not need to treat the surface of your asphalt driveway. However, if you choose to treat it, wait a minimum of 12 months and use a dilute asphalt emulsion, rather than the more common.coal tar sealant. II '. Haubert Homes Homeowner Manual Haubert Homes Limited Warranty We perform any asphalt repairs by overlay patching. I1aubelt Homes is not responsible for the inevitable differences in color between the patch and the original surface. Sealcoating can eliminate this cosmetic condition and is your responsibility. Alligator Cracking '+ If cracking that resembles the skin of an alligator develops under normal residential use, Haubert Homes will repair it. If improper use, such as heavy truck traffic, has caused the condition, repairs will be your responsibility. Settling Settling next to your garage floor of up to '!." of an inch across the width of the driveway is normal. Settling or depressions elsewhere in the driveway of up to one inch in any eight-foot radius are considered normal. We will repair settling that exceeds these standards. . Thermal Cracking Your driveway will exhibit thennal cracking, usually during the first 12 months. These cracks help your driveway adapt to heating and freezing cycles. Cracks should be evaluated in the hottest munths-July or August. We will repair cracks that exceed 11: inch in width. Attic Access Homeowner Use and Maintenance Guidelines The attic space is neither designed nor intended for storage - unless provided for in your contract. We provide access to this area for maintenance of mechanical equipment that may traverse the attic space. When you perform needed tasks in the attic, use caution and avoid stepping off wood members onto the drywall. This can result in personal injury to you or damage to the ceiling below. Your limited warranty does not cover such injury or damage. 12 Haubert !-Iomes Homeowner Manual Foundation Homeowner Use and Maintenance Guidelines We install the foundation of your home according to the recommendations of our consulting engineer. The walls of the foundation are either concrete block or poured concrete. To protect your home's foundation, follow guidelines for installation and maintenance oflandscaping and drainage in this manual. Cracks Even though an engineer designed the foundation and we constructed it according to engineering requirements, surface cracks can still develop in the wall. Surfa,ce cracks are not detrimental to the structural integrity of your home. If a crack develops in a foundation wall that allows water to come through, follow the procedures for submitting a warranty claim. II" Dampness Due to the amount of water in concrete (for concrete poured wa.lls), basements may be damp. Condensation can form on water lines and drip onto the floor. Future Construction ill Basement If you decide to perform additional construction in the basement, obtain guidelines from a licensed engineer, obtain a building permit, and comply with all codes and safety requirements. Haubert Homes does not warrant that you will be able to obtain such a permit because of the possibility that building codes may change. Haubert Homes Limited Warranty Guidelines The foundation of your home has been designed and installed according to the recommendations of an engineer. The walls of the foundation are either concrete !block Gr poured concrete. Cracks Shrinkage or backfill cracks are not unusual in foundation walls, especially at the corners of basement windows. Haubert Homes will seal cracks that exceed 1/8 inch in width. 39 Haubert Homes Homeowner Mannal Cosmetic Imperfections Slight cosmetic imperfections in foundation walls are possible and require no repair unless they permit water to enter. Leaks Haubert Homes will correct conditions that permit water to enter the basement, provided you have complied with the drainage, landscaping, and maintenance guidelines, Garage Overhead Door ! ij Homeowner Use and Maintenance Guidelines Since the garage door is a large, moving object, periodic maintenance is necessary. 30-Weight Oil Every six months, apply a 30-weight automobile oil or similar lubricant to all moving parts: track, rollers, hinges, pulleys, and springs. At the same time, check to see that all hardware is tight and operating as intended without binding or scraping. Avoid overlubricating to prevent drips on vehicles or the concrete floor. i Lock If the lock becomes stiff, apply a silicone or graphite lubricant. Do not use oil on a lock, as it will stiffen in winter and make the lock difficult to operate. Opener f ij To prevent damage to a garage door opener, be sure the door is completely unlocked and the rope-pull has been disengaged before using the operator. If you have an opener installed after closing on your home, we suggest that you order it from the company that provided and installed the garage door to assure uninterrupted warranty coverage. Be familiar with the steps for manual operation of the door in the event of a power failure. If Haubert Homes installed a door opener as one of your selections, during orientation we demonstrate the electric eye that provides a safety stop in the event sumeone crosses through the opening while the overhead door is in motion. Use care not to place tools or other stored items where they interfere with the function of the electric eye. 40 Haubert Homes Homeowner Manual Temperature The recommended thermostat setting for normal everyday use is "normal." Higher settings can result in wasted energy dollars and increase the danger of injury from scalding. Hot water will take longer to arrive at sinks, tubs, and showers that are farther from the water heater. Please note: . it is advisable for homeowners who have young children or elderly individuals living with them to set their thermostats at lower settings to insure against accidental scalding. No Hot Water If you discover that you have no hot water, check the pilot, temperature setting, and water supply valve before calling for service. Refer to the manufacturer's literature for specific locations of these items and other troubleshooting information. Haubert Homes Limited Warranty Guidelines Refer to the manufacturer's limited warranty for information regarding coverage of the water heater. See a/so Plumbing. Grading and Drainage Homeowner Use and Maintenance Guidelines The final grades around your home have been inspected and approved for proper drainage of your 101. Our surveyor cornpletes a drainage certification and then the local building authorities as well as Haubert Homes inspect the site. Drainage Typically, the grade around your home should slope I foot in the first 10 feet, tapering to a 2 percent slope. In most cases, drainage swales do not follow property boundaries. Maintain the slopes around your home to permit the water to drain away from the home as rapidly as possible. This is essential to protect your foundation. Failure to do so can result in major structural damage and will void your warranty. 43 Haubert Homes Homeowner Manual Roof Water Do not remove the splash blocks or downspout extensions from under the downspouts. Keep these in place at all times, sloped so the water drains away from your home quickly. Rototilling Rototilling can significantly change drainage swales. You can minimize this by rototilling parallel to the swales rather than across them. Settling The area we excavated for your home's foundation was larger thatl the home to allow room to work. In addition, some trenching is necessary for installation of utility lines. Although we replaced and compacted the soil, it does not return to its original density. Some settling will occur, especially after prolonged or heavy rainfall or melting of large amounts of snow. Settling can continue for several years. Inspect the perimeter of your home regularly for signs of settling and fill settled areas as needed to maintain positive drainage. See also Landscaping. Haubert Homes Limited Warranty Guidelines We established the final grade to ensure adequate drainage away from the home. Maintaining this drainage is your responsibility. If you alter the drainage pattern after closing, or if changes in drainage occur due to lack of maintenance, the limited warranty is void. Backfill Settlement Backfilled or excavated areas around the foundation and at utiliity trenches should not interfere with the drainage away from your home. If these areas settle during the first year, Haubert Homes will fill the areas one time and subsequently will provide you with fill dirt to maintain positive drainage through the end of the One-Year Warratlty. Erosion Haubert Homes is not responsible for weather-caused damage to unlandscaped yards after the final grade has been established or the closing date, whichever occurs last. 44 Haubert Homes Homeowner Mllnual New Sod New sod installation and the extra watering that accompanies it can cause temporary drainage problems, as can unusually severe weather conditions. Recommendations Haubert Homes documents the grades that exist at the time of delivery of your home or as soon thereafter as possible. The ground must be dry and free of frost to make these determinations. Once final grades are set, Haubert Homes will inspect drainage problems reported in writing during the warranty period, compare grades to those originally established, and advise you on corrective actions you might take. Soil Information We provide soil information when the purchase agreement is written or as soon thereafter as it becomes available. Landscaping recommendations are designed based on soils and engineering reports and thus may vary slightly. Swales Haubert Homes does not alter drainage patterns to suit individual landscape plans. Typically, a lot receives water from and passes water on to other lots, so changes in grade often affect adjacent or nearby lots. Haubert Homes advises against making such changes. After heavy rain or snow, water may stand in swales up to 48 hours. UlIller Concrete Haubert Homes will fill visible sunken areas under concrete during the first year. Winter Grading Due to weather conditions, especially during winter and early spring, the final grade may not have been established at the time of closing. We document the status of your grading at the time of delivery. When conditions permit, grading work will continue. Confirm that we have completed your grading before beginning landscaping. 45 Hauber'! Homes Homeowner Manual Insulation Homeowner Use and Maintenance Guidelines The effectiveness of blown insulation is diminished if it is uneven. As the last step in any future work done in your attic (for example, the installation of a TV antelma), you should confirm that the insulation lays smooth and even. Do not step on drywall ceilings, because this can result in personal i~ury or damage to the drywall. Electrical outlets sometimes emit noticeable amounts of cold air when outside temperatures are low. Haubert Homes Limited Warranty Guidelines Haubert Homes will install insulation to meet or exceed the building codes applicable at the time of construction and outlined as part of your purchase agreement. Landscaping Homeowner Use and Maintenance Guidelines Plan to install the basic components of your landscaping as soon after closing as weather permits. In addition to meeting your homeowner's association requirements to landscape in a timely maImer, well-designed landscaping prevents erosion and protects the foundation of your home. AdditiollS Before installing patio additions or other permanent improvements, consider soil conditions in the design and engineering of your addition. Backfill We construct the foundation of your home beginning with an excavation into the earth. When the foundation walls are complete, the area surrounding them is backfilled. Soil in this area is not as compact as undisturbed ground. 56 Haubert Homes Homeowner M:mual Water can penetrate through the backfill area to the lower areas of your foundation. This can cause potentially severe problems such as wet basements, cracks in foundation walls, and floor slab movement. Avoid this through proper installation oflandscaping and good maintenance of drainage. Backfill areas will settle and require prompt attention to avoid damage to your home and voiding of the structural warranty. Keep downspout extensions in the down position to channel roof runoff away from the foundation area of your home. Routine inspection of downspouts, backfill areas, and other drainage components is an excellent maintenance habit. See also Grading and Drainage. Bark or Rock Beds Do not allow edgings around decorative rock or bark beds to dam the free flow of water away from the home. You can use a nonwoven landscape fabric between the soil and rock or bark to restrict weed growth while still permitting normal evaporation of ground moisture. Contractors You are responsible for changes to the drainage pattern made by any landscape, concrete, deck, or pool contractor. Discuss drainage with any company you hire to do an installation in your yard. Do not permit them to tie into existing drainage pipes without approval from Haubert Homes, 1rrigation Make provisions for efficient irrigation. Conduct weekly operational checks to ensure proper performance of the system. Direct sprinkler heads away from the home. TrickIer or bubbler type irrigation systems are not recommended for use adjacent to th,~ structure. Regularly drain and service sprinkler systems. Planning. Locate plants and irrigation heads out of the way of pedestrian or bicycle traffic and car bumpers. Space groves of trees or single trees to allow for efficient mowing and growth. Group plants with similar water, sun, and space requirements together. 57 . Haubert Homes Homeowner Manual Haubert Homes Limited Warranty Guidelines We will confirm that all mirrors are in acceptable condition during the orientation. Haubert Homes will correct scratches, chips, or other damage to mirrors noted during the orientation. Paint and Stain , Homeowner Use and Maintenance Guidelines Due to changes in the formula for paint (such as the elimination of lead to make paints safer), painted surfaces must be washed gently using mild soap and as little water as possible. Avoid abrasive cleaners, scouring pads, or scrub brushes. Flat paints show washing marks more easily than gloss paints do. Often, homeowners prefer the results obtained by touching up rather than washing. Colors Your selection sheets are your record of the paint and stain color names, numbers, and brands in your home. Exterior Regular attention will preserve the beauty and value of your home. Check the painted and stained surfaces of your home's exterior annually. Repaint before much chipping or wearing away of the original finish occurs; this will save the cost of extensive surface preparation. Plan on refinishing the exterior surface of your home approximately every two to three years or as often as your paint manufacturer suggests for your area and climate. Climatic conditions control the chemical structure of the paint used on the exterior. Over time, this finish will fade and dull a bit. When you repaint the exterior of your home, begin by resetting pupped nails and removing blistered or peeling portions of paint with a wire brush or putty knik Sand, spot with primer, and then paint the entire area. Use a quality exterior paint formulated for local climate conditions. Avoid having sprinklers spray water on the exterior walls of your home. This will cause blistering, peeling, splintering, and other damage to the home. 60 ~ .""".....~~.~~,.,.'!..I..MI'I.l ,~-" Haubert Homes Homeowner Manual Severe Weather Hail and wind can cause a great deal of damage in a severe stunn, so inspect the house after such weather. Promptly report damage caused by severe weather to your insurance company. Please note: Haubert Homes does not warrant repairs to damage caused by weather. Staill For minor interior stain touch-ups, a fumiture-polish-and-stain treatment is inexpensive, easy to use, and will blend in with the wood grain. Follow directions on the bottle. Touch-Up When doing paint touch-ups, use a small brush, applying paint only to the damaged spot. Touch-up may not match the surrounding area exactly, even if the same paint mix is used. When it is time to repaint a room, prepare the wall surfaces first by cleaning with a mild soap and water mixture or a reliable cleaning product. We provide samples of each paint used on your home. Store these with the lids tightly in place and in a location where they are not subjected to extreme temperaturel. Wall Cracks We suggest that you wait until after the first heating season to repair drywall cracks or other separations due to shrinkage. See also Drywall. Haubert Homes Limited Warranty Guidelines During your orientation we will confirm that all painted or stained surhlces are in acceptable condition. Haubert Homes will touch up paint as indicated on the orientation list. You are responsible for all subsequent touch-up, except painting we perform as part of another warranty repair. Crackillg As it ages, exterior wood trim will develop minor cracks and raised graiin. Much of this will occur during the first year. Raised grain penn its moisture to get under the paint and can result in peeling. This is not a defect in materials or workmanship. Paint maintenance of wood trim and gutters is your responsibility. 61 ,- . -0 ~: :.:\ Cl -< C) r-> C::J C-." "b:- --(,7, ..... :x:.~ rile -CI~ -'J"":} ;~~~~, ',-) r,' c~:) -r, ~ JUN 2 4 2004 ~ ANNICK BARN INGER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED ~ RULE AND NOW, this E-- day of June, 2004, upon receipt and review of the Plaintiffs Petition to File an Amended Complaint, a Rule is granted upon the defendant to show cause, if any, as to why Plaintiffs Petition should not be granted. Rule Returnable within twenty (20) days ufthe date of service of this Rule on counsel for Defendant. Service shall be by certified mail, return receipt requested. By the Court, p. - J. y~ ~i ~ i- fr ". ~ "~1' 0:\H'r1d \1;1\:\"//\ li~'~." . . V,. -. ~. tL~:nr(! I\..!'.t;.., ., :"Ti\ ",GOl '1.1 50, ,J. L" :8 \'iC {... -'1 It ~10 .-' 11(.,~.q :Ji-'. _, " '\.rJ c';;\~Ui'l"'_V'~;':~'_il"1 Fu~, -~'--:\,J~10-"l,.J ,1_ "':;","'''' 6 ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. ANNICK BARNINGER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT AND NOW, comes the Plaintiff, Annick Barninger, by and through her counsel, R. Mark Thomas, Esquire, and respectfully represents: I. Plaintiff, Annick Barninger, is an adult individual currently residing at 240 I Cope Drive, Mechanicsburg, Cumberland County, P A 17055. 2. Defendant, Haubert Homes, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 15 Central Boulevard, Camp Hill, Cumberland County, P A 170 I I. 3. Defendant was the owner and builder of a residential home at Lot #1, Ashcombe Farms, located in Upper Allen Township and which now has a residential address of 2401 Cope Drive, Mechanicsburg, P A 17055. 4. While the new home on Lot #1 was still under construction Plaintiff entered into an agreement to purchase the to be completed home from Defendant for $ I 99,300,00. (A copy of the Agreement of Sale is attached hereto, incorporated herein and market Plaintiffs Exhibit I). 5. At settlement, which occurred after an occupancy permit was issued but before construction was completed, Defendant or his agent and/or employee provided Plaintiff with a written express one (1) year warranty which applied to the newly built home which Plaintiff purchased. (The relevant portions of the written express warranty are attached hereto and incorporated as Plaintiffs Exhibit 2). COUNT I BREACH OF CONTRACT 6. Paragraphs 1 through 5 are incorporated herein as if set forth at length. 7. Defendant negligently constructed the house and otherwise failed to construct the house in an acceptable workmanlike manner. 8. The Defendant's negligent and unworkmanlike construction consisted of the following: (a) Defendant improperly applied, or negligently failed to apply concrete sealer to the outside of the subsurface concrete and masonry block foundation walls; (b) Defendant improperly and negligently constructed the footer drains around the foundation walls; (c) Defendant improperly and negligently installed and compacted the earth backfill around the foundation walls; (d) Defendant improperly and negligently backfilled an underground utility trench extending from the driveway to the south side of the house; (e) Defendant improperly and negligently paved the driveway so as to leave a metal pipe and utility lid protruding several inches above the elevation of the paved driveway; (I) Defendant improperly and negligently did the final grading on the east side of the house; and (g) Defendant improperly and negligently installed and primed the molding around the garage doors. 9. As a direct result of Defendant's negligent and unworkmanlike construction Plaintiff has been caused to suffer the following damages: (a) Plaintiffs basement walls are seeping water and the perimeter basement waterproofing system is not working properly; (b) The front yard is collapsing and needs to be excavated, including under the driveway, the utility lines need to be inspected for damage and the entire front area will need to be properly backfilled, graded and seeded; (c) The concrete sidewalk from the driveway to the front door currently has a void space underneath due to subsidence and erosion caused by improper backfilling and compaction; (d) A portion of the paved asphalt driveway has a large, deep depression due to improper backfilling and compaction of the earth under the driveway. In addition, a metal pipe with a diameter of 4 to 6 inches protrudes above the paved driveway by several inches causing an unsightly and potentially dangerous condition; (e) The paint on the garage door and molding surrounding the garage door is pealing and needs to be scraped, primed and repainted; and (I) Additional top soil for grading to finished grade on the eastern side of the house is necessary to direct water away from the structure. 10. The costs to repair these damages is $ I 9,798.50. 11. Plaintiff incurred incidental damages in the amount of $570.00. WHEREFORE, Plaintiff seeks damages from Defendant in the amount of $20,368.00 plus costs and such other relief as the court deems appropriate. COUNT II BREACH OF EXPRESS WARRANTY 12. Paragraphs 1 through 11 are incorporated herein as if set forth at length. 13. As part of the Purchase Agreement pertaining to the purchase of a newly built house Defendant gave Plaintiff certain written express warranties. (See Plaintiff s Exhibit 2), 14. The relevant express warranties included the following: (a) Defendant promised to repair asphalt settling that exceeded normal settling depressions; (b) Defendant promised to correct the foundation walls if there are conditions that permit water to enter the basement; and (c) Defendant promised to correct the waterproofing system installed if water enters the basement. 15. Defendant has breached its express warranty by refusing to repair the driveway asphalt, the improperly backfilled foundation walls, the improperly installed footer drainage system and the improperly applied, or failure to apply, waterproofing system, 16. Plaintiff has notified Defendant of the existing warranty claims on numerous occasions, but Defendant has failed or refused to comply with the warranty. WHEREFORE, Plaintiff seeks damages from Defendant in the amount of $20,368.00 plus costs and such other relief as the court deems appropriate. COUNT III BREACH OF IMPLIED WARRANTY 17. Paragraphs 1 through 16 are incorporated herein as if set forth at length. 18. Defendant is a builder-vendor who buys land and builds homes upon that land for purpose of sale to the general public. 19. Defendant held himself out to Plaintiff as having the necessary expertise to produce a house for Plaintiff that would be a suitable dwelling. 20. Plaintiff justifiably relied upon Defendant's experience and skill to the effect that in exchange for payment in the amount of $199,300,00 she would receive a home which would be a suitable living unit. 21. Under Pennsylvania law a builder-vendor impliedly warrants that the home built for Plaintiff would be constructed in a reasonably workmanlike manner and that it would be fit for habitation. 22. Defendant has breached this implied warranty since the house in question was not built in a reasonably workmanlike manner and is not a suitable living unit for the following reasons: (a) Defendant improperly applied, or negligently failed to apply concrete sealer to the outside of the concrete and masonry block foundation walls; (b) Defendant improperly constructed the footer drains around the foundation walls; (c) Defendant improperly backfilled the foundation walls; (d) Defendant improperly backfilled an underground utility trench extending from the driveway to the south side of the house; (e) Defendant improperly paved the driveway so as to leave a metal pipe and utility lid protruding several inches above the elevation of the paved driveway; and (f) Defendant improperly did the final grading on the east side of the house; and (g) Defendant improperly installed and primed the molding around the garage doors. 23. As a direct result of Defendant's breach of implied warranty by failing to build Plaintiffs house in a reasonably workmanlike manner Plaintiff has been caused to suffer the following damages: (a) Plaintiffs basement walls are seeping water and a perimeter basement waterproofing system needs to be installed which would include labor and proper backfilling around foundation walls; (b) The expense of digging out the south side yard, inspection of utility lines for damage caused by improper backfill, the repair of utility lines if necessary and the cost of properly backfilling this area; (c) The expense ofrepairing the concrete sidewalk which currently has a void space underneath due to Defendant's improper backfilling at time of construction; (d) The expense of removing paved asphalt from the driveway, properly compacting the earth under the driveway to avoid future depressions and/or subsidence, repair of the protruding metal pipe so that it is flush with the new asphalt which will need to be installed; (e) The expense of removing the chipped paint from the garage door and trim, as well as the cost of priming and painting the trim; and (I) The expense of additional top soil and the grading of the topsoil to finished grade on the eastern side of the house WHEREFORE, Plaintiff seeks damages from Defendant in the amount of $20,368.00 plus costs and such other relief as the court deems appropriate. Respectfully submitted, ~J~ R. Mark Thomas, Esquire ID# 41301 101 S. Market Street Mechanicsburg, P A 17055 (717) 796-2100 (x~\\\t A 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 48 47 48 49 50 51 52 53 54 55 56 57 58 59 60 81 82 13 84 15 16 87 STANDARD AGREEMENT If OJ{ THE ~ALE 01<' REAL ESTATE . Thi, form I'CCOnllOCIId -(approved (or, bill nollUtricted IOIlMl by, the mcmbm OfdJil PennilYtVatlia J.-''JC!.&lioo ofRSALTORS. (PAR) A1S Residential I,. PA LICENSED BROKER AGENTFORSELLER .E.€A ,qn~"',"<1"n R,E, ADDRESS 1"'1.N. &t4-i.......rP.. $. [lill",j."u,) SUBAGENT FOR SELLER' , ADDRESS AGENT FOR BUYER -r~ f::l'J/ecu/ ~~ ::rn<,--, ADDRESS -0/'075 r . ~ /70/1 /7tJ I 9 PH 71.6 -60~5 FAX .I./.<t::J....1.3tX- PH FAX PH FAX 768-7.500 7~a-a:l90 I. lbia Jlgrcemcnt dated ,A"'J.'-':5f,;17, 1"199 SELLER(S): H~b,u f J../C7YIo!!:S "In,,- - , is between 1 2 3 4 5 8 7 8 I 10 11 12 13 14 15 18 17 18 19 20 21 22 23 24 26 21 27 28 28 30 31 32 33 34 35 36 37 31 39 40 41 42 43 44 46 46 47 48 49 50 51 52 53 54 66 68 67 58 59 8G 11 82 13 64 81 81 17 Add..... /.:5 Ce.,.,Tro....l Rn.u../~Lt2.,.A ,...,.- "" l'> "Jill PA Zip Code 17011 he....fter ''Seller:' and '....... =' BUYER(S): A.n,,~'~_1<.. r. ~"';'J"1/^:J--'- Add..... .s;z.;z.;5 H...adCT:.<..lh,o""i:. :tJr;l/",- f1...,..j,~''1;r{$~''~ ,tOA Zip Code /7(1.% hereafter"Buyer." 2. PROPERTY (1-98) Seller hereby agrees .ell and convey to Buyer, who hereby agrees to purehase: ALL THAT CERTAIN lot or piece of rou..' with hulldin and improvements thereon erected, If any. known as, ci7"7dl ,-lIre- t>-t #'1 "-""",,1,,,- fd-1'11 ~;;I Me~~t': ~:?z Inthe +-.u.,.!'.t,:p of Ul:>n....4/II.-, County of u. r In the Commonwealth of Pennsylvania, Zip Code / 7c S-< 'denllltcallon (e.g., Tax JD#; Pareel #: Lot, Block; Deed Book, Page, Recording Date) 3. TERMS (1-98) (A) PurehasePrlce O'1;.,/;:J!:..:~:;:r'-frt-nih" -fAOU5a.-nd Dollars which shall he paid to Seller hy Buyer as follows: (B) Cash or check at signing this Agreement: (e) Cash or check on or before: (D) (E) Cash, cashier's or certified check at time of settlement: ~ or '.IOrrft:iA1cvP ~ ~ ,.",'" s ~ S s I"? 7, S(>-t) S --1<1"'l13~ .....0"..,., I TOTAL (F) (G) (H) (I) Deposits to be held hy Agent for Seller, unless otherwise stal~here: Written approval of Seller 10 be on or before: ! ~ 3 ~<j Settlement to be made on or before: / 1< ::iJ~ / Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated here: (J) Payment of transfer taxes will be divided equally between Buyer and Seller unll~ss otherwise stated ,here: (K) At' time of settlement, the following shall be adjusted pro~rata on a daily basis h4~tween Buyer and Seller, reimbursing where applicable: taxes; rents; interest on mortgage assumptions; condominium fees and homeowner association fees, if any; water andlor sewer rentR, if any, together with any other lienable municipal 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 settlc:ment, unless otherwise stated here: 4. FIXTURES AND PERSONAL PROPERTY (1-98) (A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property, free of liens, including plumb~ ing; heating; lighting fixtures (including chandeliers and ceiling fans); water tn~atment systems; pool and spa equipment; garage door openers and transmitters; television antennas; shrubbery, plantings and unpoued trees; any remaining heating and cooking fuels stored on the Property at the time of settlement; wall to wall carpeting; shades, hlind~:, window covering hardware; buill~in air conditioners; buill-in appliances; and the range/oven un ess otherwise stated. Also included: _ ~ ( i' 'It flu", s - ...(Ic.w..........# -f,., b~ (B) s: Ar tIs-.; :">':..;';'1 5. SPECIAL CLAUSES (1-98) (A) 'Ij- Buyer and Seller acknowledge having received a statement of their respective: estimated closing costs before signing this Agreement of Sale. (B) 0 Buyer acknowledges receipt of Seller's Propeny Disclosure Statement before signing this Agreement, if required by law. (See Notice, Information Regarding the Seller's Property Disclosure Act) (C) jlj Buyer acknowledges receipt of the Deposit Money Notice (for cooperative sales when Agent for Seller is holding deposit money) before signing this Agreement. (D) The following are a part of this Agreement If checked: o Limited Dual Agency Addendum (PAR Fonn 140) o Sale & Settlement of Other Property Contingency Addendum (PAR Fonn 130) o Sale & Settlement of Other Property Conlingency with Right to Continue Marketing Addendum (PAR Fonn 13t) 5<.6Jec..:I.,to ~er ""-f'l'rOlIa..-1 0.(' all /?/a..feriaJs i/1 Cfu.dil1J pa..in+ color. ~h'YIer'"J+ toill be ~e€.. of' y>Juo! a-rtd c::.(r::;. o Settlement of Other Property Contingency (PAR Fonn 133) o Tenanl-Ot",upied Property Addendum (PAR Fonn TOP) o o o c.abine~fs.J G:lUl?k,:~,o? -(in Is IJ BuyerlDltlals: ,1$ Ii ......~.. AuocIlltIon of REALTORs<' ................................... AJS Resldenllal Page 1 of 8 Seller IDIt1a1s, COPYRIG~HT PENNSYLVANIA ASSOCIA110N OF REALTOttse 1t9B t/98 / ., 68 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 88 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 6. MORTGAGE,CONTINGENCY(1-11R1' c".., " "d'. i". d,' 0- WAIVED. This sale is Nor con, ot on mortgage financing. )( ELECfED (A) This sale is contingent upon Buyer obtaining mortgage financing as follows: I. Amount of mortgage loan $ l.sq~ , 2. Minimum Term - years.. ,. 3. Type of mortgage SWi':2 /"t:U1 ~,,;nA-f i,..,,,,,,,,..,.f,,,,,#~-f 1:"'" c;.z~ 4. Interest rate /0 %; h ever, Buyer"ll to accept the Iuterest rate as may ....:.rolled Ihe mortpge leader, not to exceed a maximum interest rate of %. 5. Discount points, loan origination, loan placement and other fees charged by the lender as a percentage of the mortgage loan (excluding any mortgage insurance premiums or VA funding fee) not to exceed % of the mortgage loan. The interest rate and fees provisions required by Buyer are satisfied if a mortgage lender makes available to Buyer the right to guarantee an interest rate at or below the Maximum Interest Rate specified herein with the percenhlge fees at or below the amount specified herein. Buyer gives Seller the right, at Seiter's sole option and as permitted by the lending institution and applicable laws, to contribute financially, without promise of reimbursement, to the Buyer and/or lender to make the above terms available to Buyer. (B) Within 10 days of the execution of this Agreement, Buyer shall make a completed, written mortgage application to a responsible mortgage lend- ing institution through the office of Agent for Buyer, if any, otherwise through the office of Subagent for Seller, if any, or Agent for Seller, if any. This Ageut is authorized to communicate with the lender for the purposes of asslsllug Iu the mortgage loan procellS. (C) 1. Upon receipt of a mortgage commitment, Buyer and/or Agent wilJ promptly deliver a copy of the commitment to Agent for Seller, if any, otherwise to Seller. I 2. Mortgage commitment date /1// S / f't1' . If a written commitment is not received by Agent for Seller, if any, otherwise by S;Uer, by the above date, Buyer and Seller :mgree to extend the conunitment date until Seller te.... mlnates this Agreementlu writlug. 3. Seller has the option to tenninate this Agreement in writing, on or after the mortg:age commitment date, if the mortgage commitment: a. Is not valid until the date of settlement, OR h. fs conditioned upon the sale and settlement of any other property, OR c. Contains any other condition not specified in this Agreement 4. In the event Seller does not tenninate this Agreement as provided above, Buyer has the option to tenninate this Agreement in writing if the mortgage commitment: a. Is not ohtained hy nr valid until the date of settlemen~ OR b. Is conditioned upon the sale and setdement of any other property which do not occur by the date of settlement, OR c. Contains any other condition not specified in this Agreement which Buyer ill unable to satisfy by the date of settlement. 5. If this Agreement is tenolnated as specified in paragraphs 6 (C) (2), (3) or (4), all deposit monies paid on account of purchase price shall be returned to Buyer. Buyer will be responsible for any premiums for mechanics lien insurance and/or title search, or fee for cancellation of same, if any; AND/OR any premiums for flood insurance and/or fire insuranc:e with extended coverage, insurance binder charges or cancellation fee, if any; AND/OR any appraisal fees and charges paid in advance to mortgage lender. (D) If lhe mortgage lender requires repairs to the Property, Buyer will, upon receipt, deliver a copy of the mortgage lender's requirements to Agent for Seller, if 8.ny, otherwise to Seller. Seller shall, within 5 days of receipt of the lender's requirements, notify Buyer whether Seller shall make the required repairs at Seller's ex.pense. 1. If SeUer chooses to make repairs, Buyer shal1 accept the Property and agree to the RELEASE set forth in paragraph 26 of this Agreement 2. If Seller choos~s not to make the required repairs, Buyer will, within 5 days, notify Seller in writing of Buyer's choice to terminate the Agreement of Sale OR make the required repairs at Buyer's expense and with Seller's permission, which shall not be unreasonably with- heid. If Seller denies Buyer permission to make the required repairs, Buyer may, within 5 days of Seller's denial, terminate this Agreement. If Buyer terminates this Agreement, all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. (E) SeUer A..lst Si:l Nor APPLICABLE o APPLICABLE. Seller shall pay: o $ , maximum, toward Buyer's costs as permitted by the mortgage lender. D 88 68 70 11 72 73 74 75 78 77 78 78 80 81 82 83 84 85 88 81 88 89 90 81 82 93 ... 95 98 97 H 89 100 101 102 103 104 105 106 107 to8 109 110 111 112 113 114 115 116 117 118 111 120 121 122 123 124 125 128 127 128 129 13a 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 FHA/VA, IF APPLICABLE (f') It is expressly agreed that notwithstanding any other provisions of this contract, Buyer shall nol be obligated to complete the purchase of the Property described he in or to incur any penalty by forfeiture of earnest money deposits or otherwise u s Buyer has been given, in accor~ dance with HUDIFHA 0 'A requirements, a written statement by the Federal Housilllg Commission , eterans Administration, or a Direct Endorsement Lender setting the appraised value of the Property of not less than $ (the dollar amount to be inserted is the sales price- as state . the Agreement). Buyer shall have the privilege and optio f proceeding with consummation of the con- tract without regard to the amount of appraised valuation. The appraised valuation is ved at to determine the ma1timum mortgage the Department of Housing and Urban Develo ent will insure. HUD does not warrant tt! alue nor the condition of the Property. Buyer should satisfy himselflherself that the price and condit! of the Property are acceptable. Warning: Section 1010 of Title 18, I.S.C., Dep nt.of Housing and Urhan vel"pment provides, "Whoever for the purpose of.. . inllu- eneing in IlOY way the action of such department. . . ma , passes, utters or blishes any statement knowing the same to be false. . . shall be fined not more than $5,000 or imprisoned not more than tw ears, or bo ." (G) U.S. Departmeut of Housing and Urhan Development (HU THE IMPORTANCE OF OME INSPECTION HUD does not warrant the condition of a property. (See No . es an formation on Property Condition Inspections.) (H) Certincation We the undersigned, Seller(s) and Buyer(s) y to this tran clion each certify that the tenns of this contract for purchase are true to the best of our knowledge and belief, and that an ther agreement ente into by any of these parties in connection with this transac- tion is attached to this Agreement of Sale. 7. INSPECTIONS (1-98) (A) Seller hereby agrees to permit inspections by orized appraisers, reputable certifiers, ins r's representatives, surveyors, municipal officials and/or Buyer as may be required by the I ing institutions, if any, or insuring agencic~s. Selle urther agrees to permit any other inspections required by or provided for in the te of this Agreement. (B) Buyer reserves the right to make a .settlement walk-through inspection of the Property. Buyer's ri t to make this inspection is nol waived by any other provision of this reement. (e) SeUer will have heating an I utilities (including fuel(s)) on for the inspections. 8. PROPERTY INSPECTION ONTINGENCY (1-98) o WAIVED. Buyer understands that Buyer has the option to request inspections of the Property (see Property Inspection and Environmental Notices). BUYER WANES THIS OPTION and agrees to the RELEASE set forth in paragraph 26 of this Agreement. Buyer 1~ltials: 4IIlJ AJS Residential Page 2 or 8 Seller Initials: ( 149 15ft 151 152 153 154 155 155 157 158 159 160 151 162 '63 164 165 166 167 168 16' 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 '95 196 197 198 199 200 20' 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 m 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 ~) , ~ days of the execu' of this Agreement, Buyer, at Buyer's expense, may ch" ... to have inspections and/or certifications com- pleted by Hcensed or otherwise '. ..1ified professionals (see Property Inspection and E .mmental NOtices). Ot~r provisions of this Agreement may provide for inspections and/or certifications that are nol waived or altered by Buyer's election here. If Ruyer is nol satisfied --./ with the condition of the Property as stated in any written report, Buyer will, within the time given for completing Inspections: po. Option I I. Accept the Property with the infonnalion stated in the report(s) and agree to the RELEASE sel forth in pamgraph 26 of this Agreement. OR 2. Tenninate the Agreement of Sale in writing by notice to Agent for Seller, if any. otherwise 10 Seller, within the lime given for inspection, in which case all deposit monies paid on account of purchase price shall he returned promptly to Buyer and Ihis Agreement will be NULL and VOID. o Option 2 1. Accept the Property wfih the infonnation stated in the report(s) and agree to the RELEASE set forth in paragraph 26 of this Agreement, UNLESS the total cost to correct the conditions contained in the repJrt(s) is more than $ 2. If the total cost to correct the conditions contained in the report(s) EXCEEDS the amount specified in paragraph 8(A) (Option 2) I, Buyer wlll deliver Ihe report(s) 10 Agenl for Seller, if any, olherwlse 10 Seller, wllhin Ihe time given for inspection. a. Seller will, within _ days of receiving the report(s), inform Buyer in writing of Seller's choice to: I) Make repairs before settlement so that the remaining cost to repair conditions contained in the report(s) is less than or equal to the amount specified in paragraph 8 (A) (Option 2) l. 2) Credit Buyer at settlement for the difference between the estimated CCist of repairing the conditions contained in the report(s) and the amount specified in paragraph 8 (A) (Option 2) I. This option must be acceptable to the mortgage lender. if any. 3) Not make repairs and not credit Buyer at settlement for any defects in .:onditions contained in the report(s). b. If Seller chooses to make repairs or credit Buyer at settlement as specified :in paragraph 8 (A) (Option 2) 2. Buyer shall accept the Property and agree to the RELEASE set forth in paragraph 26 of this Agreement. c. If Seller chooses not to make repairs and not to credit Buyer at settlement, or if Seller falls to choose any option within the time given, Buyer will within _ days: I) Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR 2) Terminate the Agreement of Sale in writing by notice to Agent for Seller, if any, othelWise to Seller, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. (B) Buyer's failure 10 exercise any of Buyer's opllons wllhin the lime limits specified IIn Ihis paragraph shall constitute a WAIVER of this contingency and Buyer accepts the Properly and agrees 10 Ihe RELEASE sel fortI> in paragraph 26 of Ihis Agreemenl. 9, WOOD INFESTATION CONTINGENCY (1-98) )( WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for wood infestation by a certified Pest Control Operator. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 26 of this Agreement. o ELECTED (A) Within _ days of the execution of this Agreement, D Buyer, at Buyer's expense, D Buyer, at Seller's expense, not to exceed $ , shall obtain a written "Wood-Destroying Insect Infestation Inspection Report" from a cl:rtified Pest Control Operator and will deliver it and all supporting documents and drawings provided by the Pest Control Operator to Agent for Seller, if any, othelWise to Seller. The report is to be made satisfactory to and in compliance with applicable laws, mortgage and lending i.nstitutions, and/or Federal ImlUring and Guaranteeing Agency requirements, if any. The inspection will include all readily visible and accessible areas of all structures on the Property except Ihe fol- lowing stnlctures, which will not be inspected: 149 150 151 152 153 154 155 156 157 158 159 '60 181 162 183 16. 165 166 167 188 169 170 171 172 173 174 175 176 177 178 171 180 181 182 183 184 185 188 187 188 189 190 191 192 193 194 195 "6 197 198 199 200 201 202 203 20. 205 206 207 208 209 210 211 212 213 214 215 218 217 218 211 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 (B) If the inspeclimi reveals evidence of active infestation(s), Seller agrees, at Seller's expense and before settlement, to treat for active infestalion(s), in accordance with applicable laws. (C) If the inspection reveals damage from active infestation(s) or previous infestation(s), Buyer, at Buyer's expense, hali the option to obtain a writ- ten report by a professional contractor, home inspection service, or structural engineer th,at is limited 10 structural damage to the Property caused by wood-destroying organisms and a proposal to repair the damage. Buyer will deliver the structural damage report and corrective proposal to Agent for Seller, if any, othelWise to Seller, within _ days of delivering the original inspection report. (D) Within 5 days of receiving the structural damage report and corrective proposal, Seller shall advise Buyer whether Seller will repair, at Seller's expense and before settlement, any structural damage from active or previous infestation(s). (E) If Seller chooses to repair structural damage revealed by the report, Buyer agrees to accept the Property as repaired and agrees 10 the RELEASE sel forth in paragraph 26 of this Agreement. (F) If Seller chooses not to repair structural damage revealed by the report, Buyer, within 5 days of receiving Seller's nOlice, will notify Seller in writing of Buyer's choice to: I. Accept the Property with the defects revealed by the inspection, without abatemenl of price and agree 10 the RELEASE set forth in para- graph 26 of this Agreement, OR 2. Make the repairs before settlement, if required by the mortgage lender, if any, at Buyer's expense and with Seller's permission, which shall not be unrea'iOnably withheld, in which ca~e Buyer accepts the Property and agmes to the RELEASE set forth in paragraph 26 of thill Agreement. If Seller denies Buyer pennission to make the repairs. Buyer may, within 5 days of Seller's denial. terminate this Agreement. If Buyer terminates this Agreement, all deposit monies paid on account of purchnse price shall be returned promptly (0 Ruyer and this Agreement of Sale will be NULL nnd VOID, OR 3. Terminate this Agreement, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and Ihis Agreement of Sale will be NULL and VOID. (0) Buyer's failure 10 exercise any of Buyer's options wllhln Ihe time limits speciDed In Ihis paragraph shall constltule a WAIVER of IhL. conlingency and Buyer accepts Ihe Property and agrees 10 Ihe RELEASE sel forth in paragraph 26 of Ihis Agreement, 10. CERTIFICATE OF OCCUPANCY (1-98) o NOT APPLICABLE ;l!Il APPLICABLE (A) Buyer and Seller acknowledge that a certificate permitting occupancy of the Property may be required by the municipality and/or govern- mental authority. (B) If a certificate is required, Seller shaH, at Seller's expense and within _ days of the execution of this Agreement, order the certificate for delivery to Buyer on or before settlement. (C) In the event repairslimprovements are required for the issuance of the certificate, Seller shall, within 5 days of Seller's receipt of the require- ments, notify Buyer of the requirements and whether Seller shall make the required rep~tirslimprovements at Seller's expense. (D) If Seller chooses not to make the required repairs/improvements, Buyer will, within .5 days, notify Seller in writing of Buyer's choice 10 terminate the Agreement of Sale OR make the repairs/improvements at Buyer's expense and With Seller's permission, which shall not be unrea- sonably withheld. If Seller denies Buyer permission to make the required repairs, Buyer may, within 5 days of Seller's denial, terminate Ihis Agreement. If Buyer terminates this Agreement, all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. 11. RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT NOTICE REQUIRED FOR PROPERTIF.s BUILT BEFORE 1978 (1-98)\ .. NOT APPLICABLE ) o APPLICABLE (A) SeUer represents that: (check I OR 2) o 1. SeUer has no knowledge concerning the presence of lead-based paint and/or lead-based paint hazards in or about the Property. 02. Seller has knowledge'of the presence of lead.based paint and/or lead-based paint hazards in or about the Property. (Provide the basi!; for determining that lead-based paint and/or hazard!; exist, the location(s), the condition of the painted surfaces, and other available infonna- tion concerning Seller's knowledge of the presence of lead-based paint and/or lead based paint hazards.) Buyer Initials: ,/ /j'1J , AIS Residential Page 3 of 8 Seller Inllials: / 248 247 248 241 250 251 252 253 254 255 ?56 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 12. 288 289 290 211 292 293 294 295 296 297 298 299 300 301 302 303 304 305 308 307 308 309 310 311 312 313 314 315 318 317 318 319 320 321 322 323 324 325 326 , ..~'. ,I , , !!tlld,'J" '241' 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 281 287 288 289 270 271 272 273 274 275 278 277 278 279 210 211 212 213 284 285 288 287 288 219 290 291 212 213 214 216 216 217 2H 2" 3DO 301 302 303 304 301 301 307 301 301 310 311 311 313 314 315 31. 311 318 311 320 821 322 323 824 321 321 ;i,.' (B) ReconIIIReporII (cbeck I OR 1" P 1. $eUer has no rep1~ or reco.. ".rtaining t9 lead,based paint andlor lead-based paint ~ in or ;bou! tII~.~.. . o 2. Seller has provided Buyer with all available records and reports pertaining to leadwbased paint and/or Jead':'based paint hazards in or about the Property. (List documents) (C) Buyer's Acknowledgment . 0 I. Buyer has received the pamphlet Protect Your Family from Lead in Your Home lmd has read the Lead Warning Statement conlained in this Agreement (See Environmental Notices). Buyer's Initials Date '02. Buyer has reviewed Seller's disclosure of known leadwbased paint andlor lead-based paint hazards. 8.11 identified in paragraph 11(A) and has received the records and'reports pertaining to lead-based paint and/or lead-based paint hazards identified in paragraph 11(8). Buyer's Initials Date (D) RISK ASSESSMENTIINSPECTlON. Buyer acknowledges that before Buyer is obligated 10 buy a ieslden'ial dwelling buill before 1978. Buyer has a 10 day period (unless Buyer and Seller agree in writing to a different period of time) to conduct a risk assessment or inspection (If the Property for the presence of lead-based paint and/or lead-based paint hazards. ,.0 WAIVED. Buyer understands that Buyer has the right to conduct a risk assessment or inspection of the Property to determine !.he presence uf lead-based paint andlor lead-based paint hazards. BUYER WAIVES THIS RIGHT and agrees to the RELEASE set forth in pardgraph 26 uf this Agreement. o ELECTED I. Buyer, at Buyer's expense, chooses to obtain a risk assessment andlor inspection of the Property for lead.based paint and/or lead.based paint hazards. The risk assessment and/or inspection shall be completed within _ days of the execution of this Agreementof Sale ..: (insert "10" unless Buyer and Seller agree to a different period of time). 2. Within the time set forth above for obtaining the risk assessment and/or linspectlon of the Property for lead"based paint and/or lead.based paint ~rds, Buyer may deliver to Agent for Seller, if any, otherwise to Seller, a written list of the specific hazardous conditions cited in the report and those corrections requested by Buyer, along with a copy of the risk assessment and/or inspection report. 3. Seller may, within _ days of receiving the list and report(s), submit a written corrective proposal to Buyer. The corrective proposal will include, but not be limited to, the name of the remediation company and al completion date for corrective measures. Seller will pro. vide certification from a risk assessor or inspector that corrective measures have been made satisfactorily on or before the completion dare. 4. Upon receiving the corrective proposal, Buyer, within 5 days, will: a. Accept the corrective proposal and the Property in writing, and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Terminate this Agreement in writing, in whicb case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. 5. Should Seller fail to submit a written corrective proposal within the time set forth in paragraph 11(0)3 of this Agreement, then Buyer, within 5 days, will: a. Accept the Property in writing, and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Terminate this Agreement of Sale in writing, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. 6. Buyer's fallure 10 exercise any of Buyer's oplions within the lime Ilmlls spt",lfted In this paragraph shall constItute a WAIVER of this contingency and Buyer accepts the Property and agrees to the RELEASE set forth In paragraph 16 of this Agreement. (E) Certiftcatlon By signing this Agreement, Buyer and Seller certify the accuracy of their respective statements, to the best of their knowledge. RADON CONTINGENCY (1-98) (A) SeUer represents that: (check appropriate response(s)) ~ I. Seller has no knowledge concerning the presence or absence of radon. 02. Seller has knowledge that the Property was tested on the dates, by the methods (e.g., charcoal canister, alpha track, etc.), and with the results of all tests indicated below: DATE METHOD RESULTS (picoCuriesJIiter or working levels) COPIES OF ALL AVAILABLE TEST REPORTS will be delivered to Buyer with this Agreement. SELLER DOES Nar WARRANT EITHER THE METHODS OR RESULTS OF THE TESTS. 03. Seller has knowledge that the Property underwent radon reduction measures on the date(s) and by the method(s) indicated below: DATE RADON REDUCTION METHOD o WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for radon by a certified inspector (see Radon Notice). BUYER WAfVES THIS OPTION and agrees to the RELEASE set forth in paragraph 26 of this Agreement. ELECTED Buyer, at Buyer's expense, has the option to obtain, from a certified inspector, a raclon test of the Property and will deliver a copy of the telt report to Agent for Seller, if any, otherwise to Seller, within ~ days of the execution of this Agreement. (See Radon Notice.) J. If the test report reveals the presence of radon below 0.02 working levels (4 picoCuriesllirer), Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement. 2. If the test report reveals the presence of radon at or exceeding 0.02 working levels (4 picoCurieslliter), Buyer will, within _ days of rece~pt of the test results: Oplion 1 a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Terminate this Agreement in writing. in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sole will be NULL and VOID, OR c. Submit a written, corrective proposal to Agent for Seller, if any, otherwise to Seller. The corrective proposal will include, but not be limited to, the name of the certified mitigation company; provisions for payment, including retests; and completion date for correc. tive measures. % (B) ~ I) Within 5 days of receiving the corrective proposal, Seller will: a) Agree to the terms of the corrective proposal in writing, in which case Buyer accepts the Property and agrees to the RELEASE sel forth in paragraph 26 of this Agreemeot, OR b) Not agree to the teons of the corrective proposal. Buyer Inlttals: .411'3 . A/S Residential Page 4 nf 8 Seller lnllials. ( 327 328 329 330 331 332 333 33. 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 13. 350 351 352 353 354 355 356 357 358 359 380 361 362 363 364 365 368 367 388 389 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 380 391 392 393 394 395 396 397 398 399 400 401 402 403 .04 405 408 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 2) ~~:~:SeUer no,.......,o the tennI~~U,fV~)iv.P~aj 9~ ,fail to respond within the given time. .suyer will, within 3 clays, a) Accept the h~.,erty in writing and agree to the RELEASE set forth in ,.....graph 26 of this A~menl, OR b) Tennimite this Agreement in writing, in which case all deposit monies paid on account of purchase price shall be returned pro~ptly to Buyer and this Agreement of Sale will be NULL ,lind YOlO. 327 328 329 330 331 332 333 33. 335 336 337 338 339 340 341 342 343 344 345 346 341 348 349 350 351 352 353 354 355 35& 357 358 359 3&0 381 362 383 364 365 368 387 3&8 389 370 371 372 373 374 375 378 377 378 379 380 381 382 383 384 385 381 387 m 389 390 311 392 393 384 3116 386 397 398 399 400 401 402 403 404 405 408 407 408 409 410 411 412 413 414 415 418 417 418 411 420 421 422 '23 14. D Opllon 2 a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Submit a written. corrective proposal to Agent for Seller, if any, olhcrwisl: to Seller. The corrective proposal will include, but not be limited to, the name of the certified mitigation company; provisions for payment, including retests; and completion dale for correc- tive measures. Seller shall pay a maximum of $ toward the total cost of remediation and retests, which shall be completed by setrlement I) If the total cost of remediation and rerests EXCEEDS the amount spE~itied in paragraph 12(B) (Option 2) b, Seller will, within 5 days of receipt of the cost of remediation, notify Buyer of Seller's choice to pay for the total cost of remediation and retests OR not pay for the total cost of remediation and retests. 2) If the Seller chooses not to pay for the total cost of remediation and retests, Buyer wi11, within 5 days of receipt of Seller's notification, notify Seller, in writing, of Buyer's choice to: a) Pay the difference between Seller's contribution (0 remediation and retests and the actual cost thereof, in which cao;e Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement, OR b) Tenninate this Agreement, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. (C) Buyer's faD.." tn exercise any of Buyer's options within the lime limits spedfted In this paragraph shall constitute a WA IVER of Ibts contingency and Buyer accepts the Properly and agrees to the REI.EASE set forth In paragraph 26 of Ibill Agreement. STATUS OF WATER (1-98) (A) Seller represents that this property is served hy: )lJ Public Water D On-site Water o Community Water D None D (Ill WATER SERVICE INSPECTION CONTINGENCY o WAIVED. Buyer acknowledges that Buyer has the option to request an inspection (JIf the water service for the Property. BUYER WAIVES TIllS OPTION and agrees to th. RELEASE set forth in paragraph 26 of this Agreement. D ELECI'ED I. Buyer has the option, within _ days of the execution of this Agreement and at Buyer's expense, to deliver to Agent for Seller, if any, othetwise to Seller, a written inspection report by a qualified, professional water testing company of the quality and/or quantity of the warer service. 2. SeUer agrees to locate and provide access to the on-site (or individual) water system, if applicable, at Seller's expense, if required by the inspection company. Seller also agrees to restore the Propeny prior to setrlement 3. If the report reveals that the water service does not meet the minimum standards of any applicable governmental authorities and/or fails to satisfy the requirements for quality and/or quantity set by the mortgage lender, if any, then Seller shall, within _ days of receipt of the report, notify Buyer in writing of Seller's choice to: a. Upgrade the water service to the minimum acceptable levels, before settlement, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreem.nt, OR b. Not upgrade the water service. 4. If Seller chooses not to upgrade the water service to minimum acceptable levels, Buyer will, within _ days of Seller's notice not to correct, either: a. Accept the Property and the water service and, if required by the mortgage Ilmder, if any, and/or any governmental authority, upgrade the water service before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer's expense and with Seiter's pennission, which shall not be unreasonably withheld, and agree to the RELEASE set forth in paragraph 26 of this Agreement. If Seller denies Buyer permission to upgrade the water service, Buyer may, within S days of Seller's denial, tenninate this Agreement. If Buyer tenninares this Agreement, all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID, OR b. Tenninate this Agreement, in which case all deposit monies paid on aCCOUJ1lt of purchase price shall be returned promplly to Buyer and this Agreement of Sale will be NULL and VOID. 5. Buyer's failure to exercise any of Buyer's options within the time limits specilfted In this paragraph shall cona1ltute a WAIVER of Ibill contingency and Buyer a..epts the Property and agrees to the RELEASE set forth In paragraph :!Ii of thill Agreement. STATUS OF SEWER (1-98) (A) Seller represents that Property is served hy: ~ Puhlic Sewer o Individual On-lot Sewage Disposal System (See Sewage Notice J) D [ndividual On-lot Sewage Disposal System in Proximity to Well (See Sewa!:e Notice I; see Sewage Notice 4, if applicahl.) D Community Sewage Disposal System o Ten-acre Pennit EKemption (See Sewage Notice 2) D Holding Tank (See Sewage Notic. 3) D Non. (See Sewage Notice I) o None AvailableIPermit Limitations in Effect (See Sewage Notice 5) D (Ill 1NDlVlDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY D WAIVED. Buyer acknowledges that Buy.r has the option to request an individual on-lot sewage disposal inspection of th. Propeny. BUYER WAIVES TIllS OPTION and agrees to the RELEASE set forth in paragraph 26 of this Agreement. D ELECI'ED I. Buyer has the option, within _ days of the execution of this Agreement and at Buyer's expense, to deliver to Agent for Seller, if any, otherwise to Seller, a written inspection report by a qualified, professional inspector of the individual on-lot sewage disposal system. 2. Seller agrees to locate and provide access to the individual on~lot sewage dispos<al system, and, if required by the inspection company, empty the septic tank, at Seller's expense. Seller also agrees to refitore the Property prior to settlement. 3. If the repon reveals defects that do not require expansion or replacement of the. existing sewage disposal system, Seller shall, wirhin _ days of receipt of the report, notify Buyer in writing of Seller's choice to: a. Correct the defects before settlement, including rerests, at Seller's expense, iltl which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement, OR b. Not correct the defects, in which case Buyer will, within _ days of Sdler's notice not to correct the defects, either: 1) Accept the Property and the system and, if required by the mortgage lender, if any, and/or any governmental authority, correct the defects before settlement or within the time required by the mongal~e lender, if any, and/or any governmental authority, at Buyer's sole ex.pense and with Seller's pennission, which shall not be unreasonably withheld, and agree to the RELEASE set fonh in paragraph 26 of this Agreement. If Seller denies Buyer penniss:ion to correct the defects, Buyer may, within 5 days of Seller's denial, tenninate this Agreement. If Buyer tenninates this Agre,:ment, all deposit monies paid on account of purcha.lle price shall he retumed promptly to Buyer and this Agreement of Sale will he NULL and VOID, OR 2) Tenninate this Agreement in writing, in which case all deposit moni~. paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. 4. If the report reveals. the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, within _ days of receipt of the report, submit a corrective proposal to Agent for Buyer, if any, otherwise to Buyer. The corrective proposal will include, but not be limited to, the name of the remediation company; provisions for paymeI1lt, including retests; and completion dale for corrective measures. Within 5 days of receiving Seller's corrective proposal, or if no corrective proposal is received within the given time, Buyer will: a. Agree to the tenns of the corrective proposal, if any, in writing, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement, OR Buyer [nltlals: ..4~ Sell.r Initials: AIS Residential Page 5 of 8 / 424 4Z5 426 427 428 429 430 431 432 433 434 435 436 .437 436 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 466 466 467 468 469 410 471 472 473 474 475 476 417 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 &07 508 509 510 511 512 513 514 515 516 517 518 519 520 b. ,AccepI the Propcny anrl the system and, if rcqulrcd by the nlortgage lend.,., if anv, and/or any governmental authority, correcl the defects before settlerr. If within the time required by the mortgage lender, if and/or any governmental authority, al Buyer's sole expense and with ~~der's pennission, which shall not be unreasonably Withlo...ld, and agree to the RELEASE set forth in para- graph 26 of this Agreement. If Seller denies Buyer permission to correct Ihl~ defects, all depusil monies paid on account of purchllsc price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID, OR c. Tenninate this Agreement in writing, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreement of Sale will be NULL and VOID. 5. Buyer's failure to exercise any of Buyer's options within the time limits spedfied in this paragraph shall constitute a WAIVER of this contingency and Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 26 of this Agreement. IS. NOTICF..s & ASSESSMENTS (1-98) (A) Seller represents as of Seller's execution of this Agreement, that no public improvement, condominium or homeowner association assessments have been made againslthe Property which remain unpaid and that no notice by any government or public authority has been served upon Seller or anyone on Seller's behalf, incJuding notices relating to violations of zoning, housing, building. safety or fire ordinances which remain uncorrected, and that Seller knows of no condition that would constitute violation of any such ordinances which remains uncorrected, unless otherwise specified here: (B) Seller knows of no other potential notices and assessments except as follows: 424 425 426 427 428 429 430 431 m 433 434, m 436 437 438 439 440 441 442 443 444 445 448 447 448 448 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 4S9 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 488 487 488 489 480 491 492 493 494 485 498 487 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 618 618 520 (C) In the event notices and assessments are received after execution of this Agreement and before setdement. Seller will notify Buyer in writing, within 5 days of receiving the notice or assessment, that Seller shall: I. Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees 10 the RELEASE set forth in parograph 26 of this Agreement, OR 2. Nor comply with nolices and assessments at Seller's expense, in which case Buyer will notify Seller within 5 days in writing that Buyer shall: a. Comply with the notices and assessments at Buyer's expense and agree to the: RELEASE set forth in paragraph 26 of this Agreement, OR b. Tenninate this Agreement, in which case all deposit monies paid on account of purchase price shall be returned promptly 10 Buyer and this Agreement of Sale will be NULL and VOID. If Buyer falls to notify Seller within the given time, Buyer accepls tbe Propcrt,y and agrees to the RELEASE set forth in paragraph 2Ii of this AgreemenL (D) Buyer is advised that access to a public road may require issuance of a highway occupancy pennit from the Department of Transportation. (E) If required by law, SeUer shall deliver to Agent for Buyer, if any, otherwise to Buyer, 011 or before settlement, a certitication from the appropri- ate municipal department or departments disclosing notice of any uncorrected violation of zoning, housing, building, safety or tire ordinances. 16. TITLE, SURVEYS, AND COSTS (1-98) (A) The Property is to be conveyed free and clear of all liens, encumbrances, and easeme:nts, EXCEPTING HOWEVER the following: existing deed restrictions, building restrictions, ordinances, easements of roads, easements visible upon the ground, easements of record, privileges or rights of public service companies, if any; otherwise the tille to the above described real estate shall be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. (B) In the event Seller is unable to give a good and marketable title and such as will be im;ured by a reputable Title Company at the regular rates, as specified in paragraph l6(A), Buyer shall have the option of taking such title as Selle:r can give without changing the price or of being repaid all monies paid by Buyer to Seller on account of purchase price and Seller shall reimbut~e Buyer for any costs incurred by Buyer for those items specified in paragraph 16(C) and in paragrapb 16(0) items (I), (2), (3); and in the latter event there shall be no further liability or obligation on either of the parties hereto and this Agreement shall become NULL and VOID, (C) Any surveyor surveys which may be required by the Title Insurance Company or the abstracting attorney, for the preparation of an adequate legal description of the Property (or the correction thereof), shall be secured and paid fhr by Seller. However, any surveyor surveys desired by Buyer or required by the mortgage lender shall be secured and paid for by Buyer. (D) Buyer shall pay for the following: (I) The premium for mechanics lien insurance and/or title search, or fee for cancellalion of same, if any; (2) The premiums for flood insurance and/or fire insurance with extended coverage, insurance binder charges or cancellation fee, if any; (3) Appraisal fees and charges paid in advance to mortgage lender, if any; (4) Buyer's eustomary settlement costs and accruals. 17. ZONING CLASSIFICATION (1-98) Failure of this Agreement to contain the zoning classification (except in cases where the property {and each parcel thereof, if subdividable} is zoned solely or primarily to pennit single-family dweUings) shall render this Agreement voidable at the option of the Buyer, and, if voided, any deposits tendered by the Buyer shall be returned to the Buyer without any requirement for court action, Zoning CIassit1cation: o ELECTED. Within _ days of the execution of this Agreement, Buyer will verify that the existing use of the Property as is peffilitted. In the event the use iis not pennitted, Buyer wID, within the thne given for verification, notify Agent for Seller, if any, otherwise Seller, in writing that the existing use of the Property is not pennitted and this Agreement will be NULL and VOID, in which case all deposit monies paid on account of purchase price shall be returned promptly to Buyer. Buyer's fall. ure to respond within the given time shall constitute a WAIVER of this contingency and all other tenns of this Agreement of Sale remain in full force and effeeL 18. COAL NonCE )it Nor APPLICABLE o APPLICABLE THIs rxx::UMENT MAY NOT SELL, CONVEY, TRANSfER, INCLUDE OR INSURE TIlE TInE TO TIlE COAL AND RIOHTS OF SUPPORT UNDBRNEATIi THE SURFACE LAND OESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNBRS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIOfff TO REMOVE All. SUCH COAt. AND IN mAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND ANO ANY HOUSE, BUIWINO OR OTHER STRUcruRE ON OR IN SUCH LAND. (This notice is set forth in the manner provided in Section I of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges that he may not be obtaining the right of protection against subsidence resulting from coal mining operations, and that the property described herein may he protected from damage due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgmenl is made for the purpose of complying with the provisions of Section 14 oflhe Bituminous Mine Subsidence and the Land Conservation Act of April 27. 1966," Buyer agrees to sign the deed from Seller which deed will contain the aforesaid provision. 19. POSSESSION (1-98) (Al Possession is to be delivered by deed, keys and: I. Physical possession to a vacant building (if any) broom clean, free of debris at da)' and time of settlement, AND/OR 2. Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is tenant occupied al the execution of this Agreement or unless otherwise specified herein. Buyer will acknowledge existing lease(s) hy initialing said leasc(s) 01 time of signing of this Agreement of Sale, if Property is tenant occupied. (B) Seller shall not enter into any new leases, written extension of existing leases, if any, or additional leases for Ihe Property without expressed wrinen consent of Buyer, 10. RECORDING (3-86) This Agreement shall not be recorded in the Office for the Recording of Deeds or in any olher office or plnee of public recurd and if Buyer causes or pennils this Agreement to be recorded, Seller may eleCI to treat such ncl as a breach of this Agreement. 21. ASSIGNMENT (3-85) This Agreement shall be binding upon the parties, their respective heirs, personal representatives, guardians and successors, and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer shall not transfer or assign this Agreement without the written consent of SeUer. ll. DEPOSIT AND RECOVERY FUND (1-98) (A) Deposits paid by Buyer within 30 days of settlement shall be by cashier's or certified check. Deposits, regardless of the fonn of paymenl and the person designated as payee, shall be paid to Agent identified in paragraph 3(F), who shall relain them in an escrow account until consum- mation or teffilination of this Agreement in confonnity with all applicable laws and regUllations. Agent may hold any uncashed check tendered as deposit pending the acceptance of this offer. (B) In the event of a dispute over entitlement 10 deposit monies, the Agent holding the deposit is required by the Rules and Regulations of the State Real Estate Commission (49 Pa. Code ~35.327) to retain the monies in escrow until the: dispute is resolved, In the event of litigalion for the return of deposit monies, Agent shall distribute the monies as directed by a tinal order of court or the written Agreement of the parties. Buyer and Seller agree that, in the event any Agent herein is joined in litigation for the return of deposit monies, the attorneys' fees and costs of the Agent(s) will be paid by the party joining the Agent. .Buyer Initials: A~ AIS Resideutial Page 6 of 8 Seller Initials: / 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 5'4 5.5 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 5.8 569 570 571 572 57J 574 575 57. 577 578 579 580 581 582 563 58' 585 586 567 588 589 590 591 592 593 59. 595 59. 597 598 599 800 601 602 603 604 605 606 607 608 .09 610 611 612 613 614 615 616 617 (C) A ~Ji!.""~ Fund exis.. to.reimburJe Illy jIenOnswbo have.obtaII1edaitlnil'c!viljud8l1\Ontaaalnst a Pennsylvania rnIeatata ~OwUia-w~. ~ tation, or deceit in a real estate transaction and who hr '-eeD unablem conect ~ judgment after exhaust- ing all JegaJ ""4. equilable reme.. .. For complete delails abouI the Fund, call (717) 781 d, or (800) 882-2113 (within Pennsylvania) and (717) 78348S4(outside Pennsylvania). 23. CONDOMINIUM RESALE ACI' NCYfICE (8-95) )tl NUl' APPUCABLE '0" APPUCABLE (A) Buyer acknowledges that the Property is a unit of a condominium that is primarily nm by a unit owners' association. (B) ~3407 of the Unifonn Condominium Act of Pennsylvania requires Seller to furnish Buyer with a Certificate of Resale and copies of the condo-- minium Jcclaration (olher than plats and plans), the bylaws, and the rules and regulations of the associntion. (C) Within ~ days of the execution of this Agreement. Seller shall submit a request to the association for a Certificate of Resale andlhe doc- uments necessary to enable Seller to comply with the Act. The Act provides that the association is required to provide these documents within 10 days of Seller's request. (D) Under the Act, Seller is not liable to Buyer for the failure or delay of the association Ito provide the Certificate in a timely manner, nor is Seller liable to Buyer for any erroneous information provided by the association and included in the Certificate. (E) Buyer may declare the Agreement of Sale VOID at any time before Buyer's receipt of the Certificate of Resale and for 5 days thereafter, OR until selllement, whichever occurs first. Buyer's notice declaring the Agreement void must be in writing; thereafter all deposit monies shall be returned to Buyer. 24. PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) NOTICE FOR PURI'OSES OF RESALE ONLY (1-97) :Ill Nor APPLICABLE o APPLICABLE (A) Buyer acknowledges that the Property is part of a planned communily as defined by the Unifonn Planned Community Act. (See Definition of . Planned Community Notice for the definition contained in the Act). (B) *5407(a) of the Act requires Seller to furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws, the rules and regu- lations of the association, and a Certificate containing the provisions set forth in ~5407(a) of the Act. (C) Within _ days of the execution of this agreement, Seller shall submit a request Ito the association for a Certificate and the documents nec- essary to enable Seller to comply with the Act. The Act provides that the association is required to provide these documents within 10 days of Seller's request. (D) Under the Act, Seller is not liable to Buyer for the failure or delay of the association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for any erroneous infonnation provided by the Association and included in the Certificate. (E) Buyer may declare the Agreement of Sale VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR until settlement, whichever occurs first. Buyer's notice declaring the Agreement void must be in writing; thereafter all deposit monies shall be returned to Buyer. 25. MAINTENANCE AND RISK OF LOSS (1-98) (A) Seller shall maintain the Property, grounds, fixtures, and any personal property speci,fically scheduled herein in its present condition, nonnal wear and tear excepted. (B) In the event any system or appliance included in the sale of the Property fails and Sellc:r does not repair or replace the item, Seller will promptly notify Buyer in writing of SeHer's choice to: I. Repair or replace the failed system or appliance before settlement or credit Buyc:r at setllement for the fair market value of the failed sys. tern or appliance (Ibis option must be acceptable to the mortgage lender, if any}. In each case, Buyer accepts the Property and agrees 10 the RELEASE set forth in paragraph 26 of this Agreement. 2. Make no repairs or replacements, and not credit Buyer at settlement for the fair market value of the failed system or appliance, in which case Buyer will notify Seller in writing within 5 days or before settlement, whichever is sooner, that Buyer shall: a. Accepllhe Property and agree to the RELEASE sel forth in paragraph 26 of this Agreement, OR b. Tenninate this Agreement, in which case a1l deposit monies paid on account of purchase price shall be returned promptly to Buyer and this Agreemenl of Sale will be NULL and VOID. (C) Seller shall bear risk of loss from fire or other casualties until time of settlement. In the event of damage by fire or other casualties 10 any prop- erty included in this sale Ibal is not repaired or replaced prior to settlement, Buyer shall have the option of rescinding this Agreement and promptly receiving all monies paid on account of purchase price or of accepting the Property in its then condition together with the proceeds of any insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyer's equitable interest in this Property as of the time of execution of Ibis Agreement. Buyer's failure to exercise any or Buyer's options within the time limits specified In this paragraph shall constitute a WAIVER or thls con- tingency .nd Buyer .ccepts the Property .nd .grees to the RELEASE set forth In palragraph 26 nf this Agreement. 26. RELEASE (7-96) - Buyer hereby releases, quit claims .nd fnrever dlsch.rges SELILER, ALL AGENTS, thetr SUBAGENTS, EMPLOY- EES, and .ny OFFICER or PARTNER of .ny one nf them .nd .ny nther PERSON, FIRM, or CORPORATION who IR8Y be lI.ble byor through them, f'rom any and all claims, losses or demands, Including, but not limited to, personallnjurles and property damage and all 01' the consequences thereor, whether now known or not, which may arise from the presence of termites or other wood..boring Inseds, radon, lead-based paint bazards, environmental hazards, .ny defects in the Individnal on-io'l sew.ge disposal system or deftcIencl.. in the nn-slte water service system, or any derects or conditions on the Property. This release shall survive settlement. 27. REPRESENTATIONS (1-98) (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Agenls or their employees are not a part of this Agreement, unless expressly incorporaled or stated in this Agreement (B) It Is understood th.t Buyer has Inspected the Property befnre signing Ihls Agreement of S.le (Including ftxtures .nd .ny pe.....n.1 prop- erty speclftcally scheduled herein), or has waived the rlRht to do so, and has IIRreed to purchase It In Its present condition unless otherwise stated In this Agreement. Buyer acknowledges that the Agents have nol: made an Independent examination or determination or the stmctural soundness of the Property, the age or condition of the components, environmental conditions, the permitted uses, or of conditions existing In the locale where the Property Is situated; nor have they made a mechanical Inspection or any or the systems contained therein. (C) It is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no oOler tenns, obligalions, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthennore, this Agreement shall not be altered, amended, changed, or modified except in writing executed by the parties. (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraphs. 28. DEFAULT-TIME OF THE ESSENCE (1-98) The said time for settlement and all other times referred to for the perfonnance of any of the obligalions of this Agreement are hereby agreed to be of the essence of this Agreement. For the purposes of this Agreement, number of days shall be counted from the date of execution. by excluding lhe day Ibis Agreement was executed and including the last day of the time period. Should Buyer: (A) Fail to make any additional payments as specified in paragraph 3; OR (B) Furnish false or incomplete infonnation to Seller, Agent for Seller, Agent for Buyer, or the mortgage lender, if any, concerning Buyer's legal or financial status, or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment; OR (C) Violate or fail to fulfill and perfonn any other terms or conditions of this Agreement; then in such case, Seller shall have Ibe option of retaining all deposit monies and other sums paid by Buyer on account of purchase price, whether required by this Agreement or not, only as elected below; (Check only one) ";:r/ As liquidated damages. In this event Buyer and Seller shall be released from fu11her liability or obligation and Ibis Agreement shall be NULL and VOID. o On account of purchase price, or as monies to be applied to Seller's damages, or as liquidated damages for such breach, as Seller may elect. In Ibe event of liquidated damages, Buyer and Seller shall be released from further liability or obligation and this Agreement shall be NULL and VOID. 29. AGENT(S) (1-98) It is expressly understood and agreed belween the parties thallhe nwmed Agent for Seller, any Subagents, their salespeople, employees, officers and/or partners, are Agent(s) for Seller, and that the named Agent for lthe Buyer, their salespeople, employees, officers andlor partners, are Agent(s) for Buyer. If there is no Agent for Buyer, Agent for Seller or Subagent for Seller may perfonn services for Buyer in connec- tion wilb financing, insurance and documenl preparation, with written disclosure to Buyer aLnd Seller. 111 522 523 524 525 526 527 528 529 630 531 532 533 534 535 536 537 538 539 540 541 642 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 663 564 565 566 567 5S8 569 570 571 572 573 574 575 516 677 578 579 580 581 582 583 564 585 686 587 588 589 590 591 592 593 594 595 598 597 598 599 600 601 602 603 604 6115 606 607 608 609 610 611 612 613 614 615 "6 817 Buyer Initi.ls: illfJ AIS Resldenti.1 Page 7 of 8 Setier Initials: / 618 .~O 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 837 836 839 840 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 856 657 658 659 660 861 662 683 884 665 666 887 688 689 670 671 672 673 674 675 676 677 678 679 680 881 682 883 684 685 686 687 888 689 690 691 692 893 694 895 698 897 698 699 700 701 702 703 704 705 706 707 708 709 710 711 III 619 820 621 622 623 624 625 626 627 m 629 Buyer and Seller acknowledge that they have read and understand the notices and explanatory infonn8tlon regarding property condldon Inspec.. 630 tlons set foJ1h on the back of this fonn. 63t 632 633 634 635 636 m 638 639 640 841 642 843 644 645 648 647 640 649 650 651 852 853 654 655 856 857 m 859 680 881 682 883 684 885 m " 867 881 681 670 871 872 873 874 675 878 877 178 179 680 611 882 183 884 815 888 887 888 819 690 691 612 893 814 696 III 697 118 899 700 701 702 703 704 705 706 707 708 708 710 711 J4l. I\tEDJATlON (7-118) o N<Yr AVMLABLB o WANED. Buyer and Seller ~. 'I"d tbatlhey may choose to mediate at a later date, sl. ation on the part of any party to do so. )(J ELECTED ". (A) Buyer and Seller will try to resolve any dispute or claim that may arise from this Agrec,ment of Sale through mediation, in accordance with the Rules and Procedures of the Home SellerslHome Buyers Dispute Resolution System. Any agreement reached through a mediation conference and signed by the parties will be binding. (B) Buyer and Seller acknowledge that they have received, read, and understand the Rules and Procedures of lIle Home SellersIHome Buyers Dispute Resolution System. (See Mediation Notice~) (C) This agreement to mediate disputes arising from this Agreement shall survive seUlemf:nt. " j a ~~pute arise, but that there wi1l be no ob1ig~ NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return by facsimile transmission (FAX) nfthls Agreement of Sale, and all addenda, bearing the signatures of all parties, constitutes accel.tance of this Agreement. Parties to this transaction are advised to consult an attorney before signing If they desire legal advice. ~~'Lr1'4{,,,,,-/ :~:d.._ WITNESS BUYER ~ ~/f9. ~7~1 y&J DAn; DATE DATE A.D. Seller hereby approves the above contract this day of and in consideration of the services rendered in procuring the Buyer, Seller agrees to pay the named Agent for SeUer a fee of of/from the herein specified sale price. In the event Buyer defaults hereunder, any monies paid on account shall be divided Seller, ' Agent for Seller, but in no event will the sum paid to the Agent for Seller be in excess of the above specified Agent's fee. DATE DATE DATE SELLER SELLER SELLER WITNI1SS WITNESS WITNESS Services to Buyer ]n conjunction with this Agreement of Sale, by initialing below, Buyer authorizes Subagent for Seller, if any, or Agent fOT Seller 10 perfonn" the following' services on Buyer's behalf: Order Title Insurance from any reputable litle Insurance Company. Buyer'.lnidals. Order Homeowner's Insurance with coverage in the amount of $ Buyer's Initials .. " Order Fire & Extended Coverage Insurance with coverage in the ~ount of $ Buyer'slnidals Order Flood ln~urance with coverage in the amount of $ Buyer'slnilials Fee: $ Buyer's Services Buyers Initials Buyer's InItial. .,', Seller's Acknowledgment Seller acknowledges receipt of a separate Buyer's services agreement with Agent for Seller or Subagent for Seller. Seller.. Initial. "',' Brolrer's1Afll!Dt's CerlllIcallons (ches* all that are applicable): o Regarding Lead.B..oo Paint Hazards Disclosure: Required If Properly was bulllt before 1978: The undersigned Agents involved in this transaction, on behalf of themselves and their brokers, certify that their statements 8I1e true to the best of their knowledge and belief. Agents' Acknowledgment: The Agents involved in this transaction have infonned Seller of Seller's obligations under The Residential Lead Paint Hazard Reduction Act, 42 U.S.c. 4852(d), and are aware of their responsibility to ensure compliance. o Regarding FHA Mortgages: The undersigned Agents involved in this transaction, on behalf of themselves and their brokers, certify that the tenns 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 these parties in connection with this transaction is attached to this Agreement of Sale. )lCf Regarding Mediadon: The uodersigoed . i 0 Agent for SeUer }i! Agent for Buyer 0 Subagent for SeUer on behalf of themselves and their brokers, agree to submit to mediatioo in accordance with paragraph 30 of this Agreement. AOENT'POR SEl.LIlR (CompaOY Name)' ACCEPTED BY (Signature of Broker or Salesperson) DATE SUBAGENT FOR SELLER (Company Name) ACCEPTED BY (SiJR8blre of Brow or Salesperson) DATE AOENTFORBUYER(Co~an.'e) ~~_"'-':~ ~:>J::rAC- ACCEPTED BY ~ :,..~ . DATE <f/.z. 7/,," of Broker or S ) I ilIA . SeIler InIdals: AIS RcsldenUal Page 8 of 8 Buyer InItIals: SELlER'S COPY G ~~,~\ \- b HOMEOWNER lVlANUAL A Maintenance and Warranty Guide for the New Homeowner Presented by H UBfRT HO f ~ - Custom Building for Generations H UBfRT HOh\fS In= Custom Building for Generations Dear Homeowner, It has been our pleasure to have played a role inlhe establishment of your new home. Utilizing today's materials and technology, with ils special blend of efficient design, quality craftsmanship, and the ele- gance of your personal taste, we have made your home unique and special from any other home ever built. Our commitment to personal service continues, and we will strive to be of assistance to you when requested. Your home is engineered and designed as a whole-house system, with each product seJected and installed to support that system. It is our desire thaI yoo be informed aboot your home as much as possible _ enhancing comfort and enjoyment for many years. Please take the time to read this warranty and maintenance guide. It reviews the basics of home care and how to solve or report warranty concerns. Also, please review all of the individual product literature included in the back cover of this book. Although you may never ueed 10 use them, complete and return all Warranty Registration cards to validate their use with the mauufaciurer. We wish you many happy years iu your new home. Please refer to the information below to contact us during your One Year Limited Warranty. With Sincere Thanks, All of us al: IIaubert Homes, Inc. YOUR LOCAL OFFICE: TELEPHONE: FAX: WARRANTY CONTACT: Haubert Homes I1omeowner Manual Caring for Y our Home Haubert I lomes has constructed your home with qualiity materials and the labor of experienced craftsmen. Before our using any material, it must meet our specifications for quality and durability. All work is done under our supervision to atlain the best possible results for your investment. A home is one of the last hand-built products left in the world. Once we have assembled the natural and manufactured materials, the components interact with each other and the environment. Although quality materials and workmanship have been used in your home, this does not mean that it will require no care or maintenance. A home, like an automobile, requires care and attention from day one. General homeowner maintenance is essential to providing a quality home for a lifetime. Homeowner Use and Maintenance Gnidelines We are proud of the homes we build and the neighborhoods in which we build. We strive to create long-lasting value. This cannot be achieved unless you, as the homeowner, properly maintain your home and all of its components. Periodic maintenance is necessary because of normal wear and tear, the inherent characteristics of the materials used in your home, and normal service required by the mechanical systems. Natural fluctuations in temperature and humidity also affect your home. Many times a minor adjustment or repair done immediately saves a more serious, time- consuming, and sometimes cosily repair latcr. Note also that neglect of routine maintenance can void applicable limited warranty coverage on all or part of your home. By caring for your new home attentively, you ensure your enjoyment of it for years. The attention provided by each homeowner contributes significantly to the overall desirability of the community. We recognize that it is impossible to anticipate and describe every attention needed fur good home care, but we have covered many important details. The subjects covered include components of homes we build, listed in alphabetical order. Each topic includes suggestions for use and maintenance followed by Haubert Homes' limited warranty guidelines. This manual may discuss some components that are not present in your home. Please take time to read the literature provided by the manufacture,s of consumer products and other items in your home. The information contained in that material is not repeated here. Allhough much of the informatiollmay be familiar to YOll, some points may differ significantly from homes you have had in the past. Haubert Homes Homeowner Manual We make every effort to keep our information current al.H.l accurate. Ilowever, if any detail in our discussion confiicts with the manufacturer's recommendations, you should follow the manufacturer's recommendations. Activate specific manufacturer's warranties by completing and mailing any registration cards included with their matcrials. In some cases, manufacturer's warranties may extend beyond the first year and it is in your best interests to be apprised of such coverages. Haubert Homes Limited Warranty Guidelines Throughout this manual, where the heading "Haubert Humes Limited Warranty Guidelines" appears, it is understood to identify items that are covered and action to be taken by Haubert Homes during the One Year Warranty. Any such activities that are required after the first year become homeowner maintenance matters for which Haubert Homes can be consulted and is not responsible. While we strive to build a delect-liee home, we are realistic enough to know that we may make mistakes or that something in the home may not perform as intended. When either occurs, we will make necessary corrections. In snpport of tllis cOlllmitment, Ilaubert I Iomes provides you with a limited one-year warranty. In addition tu the information contained in the limited warranty itself, this manual includes details about one-year material and workmanship standards. The purpose is to let you know what our quality standard is I~Jr the typical concerns that can come up in a new home. The manual describes our standards lor each item and what we will do to remedy items that do not meet our standards. Our criteria fur qualifying warranty repairs are based on typical industry practices in our region and meet or exceed those practices for the compunents of your home. However, we reserve the right to exceed these guidelines if common sense or individual circumstances dictate, without being obligated to exceed all guidelines to a similar degree or for all homeowners. You will receive the signed limited warranty document at your closing. Please read through this information, as well as the service procedures discussed on the full owing pages. If you have any questions regarding the standards or procedures, contact our office. Ollr warranty service SYStelll is designed to accept written reports of l1011emergency items on the /hJ'11ls provided /(j you. This provides yuu with the lIIaxillllllll protection and allows liS to operate efficiently, thereby providing faster service to all hOllleowners. Emergency reports are the (JIIly report.v accepted liy li/lOlle. 2 I1anl.1Ht Homes Homeowner Mannal Reporting Procedu,-es All service requests should be put in writing. Youlllay also contact us through the Customer Service section of our website at hllp:l/www.hauberthomes.com Sixty-Day Report In order for our service program to operate at maximum efficiency and for your own convenience, we suggest that yon wait 60 days before submitting any warranty list. This allows you sufficient time to become settled in your new home and to thoroughly examine all components, Year-Em! Report Near the end or the eleventh month of your materials and workmanship warranty, you should submit a year-end report. We will also be happy to discuss any maintenance qllestions you may have at that time. Emergellcy Sen,ice As defined by the limited warranty, "emergency" includes situations such as: ~ Total loss of heat when the outside temperature is below 45 degrees F. ;;. Total loss of e1eclricity. (Chcck with thc utility company bC/tHe reporting this circumstance to Ilaubert (Iomes or electrician.) ;;. Total loss of water. (Check with the water department to be certain the problem is not a general outage in the area.) ;;. Plumbing leak that requires the entire water supply to be shut off. ;;. Gas leak. (Contact your utility company or plumber irthe leak is at the furnace or water heater supply lines.) For Emergellcy Reportillg During business hours, call your local] laubert I Tomes office. After hours, or on weekends or holidays, call the necessary trade contractor directly. Their phone numbers are listed on the back cover of this book. 3 Haubert Homes Homeowner Manual Other Warrallty Service If you wish to initiate nonemergency warranty service bctween the 60-day and year-end report, you are welcome to do so by sending in a service request form or writing a letter. We will handle these requests according to the same procedures that apply to the 60-day and year-end reports. ,Kitchell Appliallce Warrallties The manufacturers of kitchen appliances will work directly with you if any repairs are needed for these products. Customer service phone numbers are listed in the use and care materials for each appliance. Be prepared to provide the model and serial number of the item and the closing date on your home. Appliance warranties are generally for one year; refer to the literature provided by the manufacturer for complete infonnalion. Service Processing Procedures You can help us to serve you better by providing complete information, including: ~ Name, address, and phone numbers where you can be reached during business hours. ~ A complete description of the problem, for example, "guest bath-cold water line leaks under sink," rather than "plumbing problem." When we receive a warranty service request, we may contact you for an inspection appointment. Warranty inspecti()IJ appointments are available during regular business hours. We inspect the items listed in your written request to confirm warranty coverage and determine appropriate action. Generally reported items fall into one of three categories: ~ Trade contractor item ~ In-house item ~ Home maintenance item If a trade contractor or an in-house employee is required to complete repairs, we issue a warranty work order and the repair technician contacts you to schedule the work. Warranty work appointments are available during regular busiuess hours. We intend to. complete warranty work orders within 15 work days of the inspection unless you are unavailable for access. If a back- ordered part or similar circumstance causes a delay, we will let you know. If the item is home maintenance, we will review the maintenance steps with you and offer whatever infurma!ional assistance we can. Haubert Homes does not provide routine home maintenance. 4 .j"' ;'i :'I' it) ~1,; "~ ,:,;:,;;(1 ,J, lIauhert lIomcs Homcowncr Mannal Asphalt Homeowner Care and Mainlenance Asphalt is a flexible and specialized surface. Like any other surface in your home, it requires protection from things that can damage it. Over time, the efr.~cts of weathu and earth movement will cause minor setlling and cracking of asphalt. These are normal reactions to the elements and do not constitute improperly installed asphalt or defective material. Avoid using your driveway for one week after it is installed, by keeping people, bicycles, lawn mowers, and any other traffic offofit. Chemical Spills Asphalt is a petroleum product. Gasoline, oil, turpentine, and other solvent or petroleum products can dissolve or damage the surface. Wash such spills with soap and water, and then rinse them thoroughly with plain water. Hot Weather A void any concentrated or prolonged loads on your asphalt, particularly in hot weather. High- heeled shoes, motorcycle or bicycle kickstands, trailers, or even cars left in the same spot for long pcriods can create depressions or punctures in asphalt. NOllresitlelllial Traffic A void nonresidential traffic such as heavy trucks on your driveway; it was designed for residential use only. Sealcoatillg Exposure to sunlight and other weather conditions will fade your driveway, allowing the surface gravel material to be more visiblc. This is a normal condition and not a material or structural problem. You do not nced to trcat the surface of your asphalt driveway. However, if you choose to treat it, wait a minimum of 12 months and use a dilute asphalt emulsion, rather than the more common. coal tar sealant. 11 Hauhe.ot Homes Homeowner Manual Haubert Homes Limited Warl'anty We perform any asphalt repairs by overlay patching. llaubert Homes is not responsible for the inevitable differences in color between the patch and the original surface. Sealcoating can eliminate this cosmetic condition and is your responsibility. Alligator Crackillg ., If cracking that resembles the skin of an alligator develops under normal residential use, Haubert Homes will repair it. If improper use, such as heavy truck traffic, has caused the condition, repairs will be your responsibility. Settlillg Settling next to your garage floor of up to ';:j" of an inch across the width of the driveway is normal. Settling or depressions elsewhere in the driveway of up to one inch in any eight-foot radius are considered normal. We will repair settling that exceeds these standards. . Thermal Crackillg Your driveway will exhibit thermal cracking, usually during the first 12 months. These cracks help your driveway adapt to heati'lg and freezing cycles. Cracks should be evaluated in the hottest months-July or August. We will repair cracks that exceed 1/: inch in width, Attic Access Homeowner Use and Maintenance Gnidelines The attic space is neither designed nor intended for storage - unless provided for in your contract. We provide access to this area for maintenance of mechanical equipment that may traverse the attic space. When you perform needed tasks in the attic, use caution and avoid stepping off wood members onto the drywall. This can result in personal injury to you or damage to the ceiling below. Your limited warranty does not cover such injury or damage. 12 Haubert !JOIllCS HOlllcowuc.' Mauual Foundation Homeowner Use and,Maintenance Guideliues We install the foundation of your home according to the recommendations of our consulling engineer. The walls of the foundation are either concrete block or poured concrete. To protect your home's foundation, follow guidelines for installation and maintenance oflandscaping and drainage in this manual. Cracks Even though an engineer designed the foundation and we constructed it according to engineering requirements, surface cracks can still develop in the wall. Surface cracks are not detrimental to the structural integrity of your home. I f a crack develops in a foundation wall that allows water to come through, follow the procedures for submitling a warranty claim. .. Damplless Due to the amount of water in concrete (for concrete poured walls), basements may be damp. Condensation can form on water lines and drip onto the floor. Flltllre COllstructioll ill Basemellt If you decide to perform additional construction in the basement, obtain guidelines from a licensed engineer, obtain a building permit, and comply with all codes and safety requirements. Haubert Homes does not warrant that you will be able to obtain such a permit because of the possibility that building codes may change. Haubert Homes Limited Warranty Guidelines The foundation of your home has been designed and installed according to the recommendations of an engineer. The walls of the foundation are either concrete block cr poured concrete. Cracks Shrinkage or backfill cracks are not unusual in foundation walls., especially at the corners of basement windows. Haubert Homes will seal cracks that exceed 1/8 inch in width. 39 Haubert HOllies I1ollleowner Manual Cosmetic Imperfectiolls Slight cosmetic imperfections in foundation walls are possible and require no repair unless they permit water to enter. Leaks Haubert Homes will correct conditions that permit water to enter the basement, provided you have complied with the drainage, landscaping, and maintenance guidelines. Garage Overhead Door / ij Homeowner Use and Maintenance Guidelines Since the garage door is a large, moving object, periodic maintenance is necessary. 30-Weigllt Oil Every six months, apply a 30-weight antomobile oil or similar lubricant to all moving parts: track, rollers, hinges, pulleys, and springs. At the same time, check to see that all hardware is tight and operating as intended without binding or scraping. ^ void overlubricating to prevent drips on vehicles or the concrete floor. i Lock If the lock becomes stiff, apply a silicone or graphite lubricant. Do not use oil on a lock, as it will stiffen in winter and make the lock difficult to operale. ( ij Opeller To prevent damage to a garage door opener, be sure the door is completely nnlocked and the rope-pull has been disengaged before using the operator. If you have an opener installed after closing on your home, we suggest that you order it from the company that provided and installed the garage door to assure uninterrupted warranty coverage. Be familiar with the steps for manual operation of the door in the event of a power failure. If Haubert Homes installed a door opener as one of your selections, during orientation we demonstrate the electric eye that provides a safely stop in the evenl someone crosses through the opening while the overhead door is in motion. Use care nol to place tools or other stored items where they interfere with the function of the electric eye. 40 lJauhcr.tlJollles Homcowuer Mauual Temperature The recommended thennostat selling for normal everyday use is "nOlmal." Higher settings can result in wasted energy dollars and increase the danger of illjmy from scalding. Hot water will take longer to arrive at sinks, tubs, and showers that are farther from the water heater. Please note: it is advisable for homeowners who have young children or elderly individuals living with them to set their thernlostats at lower sellings to insure against accidental scalding. No Hot Water If you discover that you have no hot water, check the pilot, temperature setting, and water supply valve before calling for service. Refer to the manufacturer's literature for specific locations of these items and other troubleshooting information. Haubert Homes Limited Warranty Guidelines Refer to the manufacturer's limited warranty for information regarding coverage of the water heater. See also Plumbing. Grading and Drainage Homeowner Use and Maintenance Gnidelines The final grades around your home have heen inspected and approved for proper drainage of your lot. Our surveyor completes a drainage certification and then the local building authorities as well as Haubert Homes inspect the site. Drainage Typically, the grade around your home should slope 1 foot in the first 10 feet, tapering to a 2 percent slope. In most cases, drainage swales do not follow property boundaries. Maintain the slopes around your home to permit the water to drain away from the home as rapidly as possible. This is essential to protect your foundation. Failure to do so can result in major structural damage and will void your warranty. 43 I1auber.t Homes Homeowner Mlllllual Roof Water Do not remove the splash blocks or downspout extensions from under the downspouts. Keep these in place at all times, sloped so the water drains away from your home quickly. Rototilling Rototilling can significantly change draillage swales. You can minimize this by rototilling parallel to the swales rather than across them. Settling The area we excavated for your home's foundation was larger than the home to allow room to work. In addition, some trenching is necessary for installation of utility lines. Although we replaced and compacted the soil, it does not return to its original density. Some settling will occur, especially after prolonged or heavy rainfall or melting of large amounts of snow. Settling can continue for several years. Inspect the perimeter of your home regularly for signs of settling and fill settled areas as needed to maintain positive drainage. See also Landscaping. Haubert Homes Limited Warranty Guidelines We established the final grade to ensure adequate drainage away from the home. Mainlaining this drainage is your responsibility. If you alter the drainage pattern after closing, or if changes in drainage occur due to lack of maintenance, the limiled warranly is void. Backfill Settlemellt ~ Backfilled or excavated areas around lhe fuundation and atulilily trenches should not interfere with the drainage away from your home. If these areas settle durill1g lhe first year, Haubert Homes will fill the areas one time and subsequently will provide you with fill dirt to maintain positive drainage through the end of the One-Year warranty. Erosion Haubert Homes is not responsible for weather-caused damage to ulllandscaped yards after the final grade has been established or the closing date, whichever occurs last. 44 Hllubert HOlllcs I1omcowllcr M:UIIIlll New Sod New sod installation and the extra watering that accompanies it can cause temporary drainage problems, as can unusually severe weather conditions. RecommelUlatiOllS Haubert Homes documents the grades that exist at the time of delivery of your home or as soon thereafter as possible. The ground mUSl be dry ami free of frost to make these determinations. Once final grades are set, Haubert Homes will inspect drainage problems reported in writing during the warranty period, compare grades to those originally established, and advise you on corrective actions you might take. Soill1iformatiOll We provide soil information when the purchase agreement is written or as soon thereafter as it becomes available. Landscaping recommendations are designed based on soils and engineering reports and thus may valY slightly. Swales IIaubert Homes does not alter drainage patterns to suit individual landscape plans. Typically, a lot receives water from and passes water onto other lots, so changes in grade often affect adjacent or nearby lots. Haubert Homes advises against making such changes. After heavy rain or snow, water may stand in swales up to 48 hours. UI/der COl/crete Haubert [Jomes will fill visible sunken areas under concrete duriing the first year. Wil/ter Grat!il/g Due to weather conditions, especially during winter and early spring, the final grade may not have been established at the time of closing. We document the statns of your grading at the time of delivery. When conditions permit, grading work will continue. ConfinTI that we have completed your grading before beginning landscaping. 45 I lIaube.-t Homes lIomeowlle.o Manual Insulation Homeowner Use and Maintenance Guidelines The effectiveness of blown insulation is diminished if it is uneven. As the last step in any future work done in your attic (for example, the installation of a TV antenna), you should confirm that the insulation lays smooth and even. Do not step on drywall ceilings, because this can result in personal injury or damage to the drywall. Electrical outlets sometimes emit noticeable amounts of cold air when oulside temperatures are low. Haubert Homes Limited Warranty Guidelines Haubert Homes will inslall insulation 10 meet or exceed the building codes applicable at the time of construction and outlined as part of yuur purchase agreement. Landscaping Homeowner Use and Maintenance Guidelines Plan to install the basic components of your landscaping as soon after closing as weather permits. In addition to meeting your homeowner's association requirements 10 landscape in a timely manner, well-designed landscaping prevents erosiun and protects the foundation of yuur home. AdditiollS Before installing patio adtlitions or other permanent improvements, consider soil contlitions in the tlesign and engineering of your atltlition. Backfill We construct the foundation of your home beginning with an excavalion into the earlh. When the foundation walls are complete, the area surrounding them is backlilled. Soil in this area is not as compact as undisturbed ground. 56 Hauhert Homes Homeowner Mauual Water can penetratc through the backfill area to the lower areas of your foundation. This can cause potentially severe problems such as wet basemcnts, cracks in foundation walls, and floor slab movement. A void this through proper installation of landscaping and good maintenance of drainage. Backfill areas will setlle and rcquire prompt atlention to avoid damage to your home and voiding of the structural warranty. Keep downspout extensions in the down position to channel roof runoff away from the foundation area of your home. Routine inspection of downspouts, backfill areas, and other drainage components is an excellent maintenance habit. See also Grading and Drainage. Bark or Rock Beds Do not allow edgings aronnd decorative rock or bark beds to dam the free flow of water away from the home. You can use a nonwoven landscape fabric between the soil and rock or bark to restrict weed growth while still permitting normal evaporation of ground moisture. Contractors You are responsible for changes to the drainage pattcrn made by any landscape, concrete, deck, or pool contractor. Discuss drainage with any company you hire to do an installation in your yard. Do not permit them to tie into existing drainage pipes without approval from Haubert Homes. Irrigation Make provisions for efficient irrigation. Conduct weekly operational checks to ensure proper performance of the system. Direct sprinkler heads away hom the home. Trickier or bubbler type in'igation systems are not recommended for use adjacent to the structure, Regularly drain and service sprinkler systems. Planning. Locate plants and irrigation heads out of the way of pedestrian or bicycle traffic and car bumpers. Space groves of trees or single trees to allow for efficient mowing and growth. Group plants with similar water, sun, and space requirements together. 57 Haubert lIomes Homeowner Manual Haubert Homes Limited Warranty Guidelines We will confirm that all mirrors are in acceptable condition during the orientatiori. Haubert Homes will correct scratches, chips, or other damage to mirrors noted during the orientation. Paint and Stain r Homeowner Use and Maintcnancc Guidelincs Due to changes in the formula for paint (such as the elimination ur lead to make paints safer), painted surfaces must be washed gently using mild soap and as littlle water as possible. A void abrasive cleaners, scouring pads, or scrub brushes. Flat paints show washing marks more easily than gloss paints do. Often, homeowners prefer the results obtained by touching up rather than washing. Colors Your selection sheets are your record of the paint and stain color names, numbers, and brands in your home. Exterior Regular attention will preserve the beauty and value of your home. Check the painted and stained surfaces of your home's exterior annually. Repaint before much chipping or wearing away of the original finish occurs; this will save the cost of extensive surface preparation. Plan on refinishing the exterior surface of your home approximately every two to three years or as often as your paint manufacturer suggests for your area and climate. Climatic conditions control the chemical structure of the paint used on the exterior. Over time, this finish will fade and dull a bit. When you repaint the exterior of your home, hegin by resetting popped nails and removing blistered or peeling portions of paint with a wire brush or putty knire. Sand, spot with primer, and then paint the entire area. Use a quality exterior paint f(lI"Inulated f,lI' local climate conditions. A void having sprinklers spray water on the exterior walls or your home. This will cause blistering, peeling, splintering, and other damage to the home. 60 '''''''-~',;~'''\\'I1!t~t1il11 ~_. "J ~,- ~1I~l.:' lIauher! Homes Homeowller 1\1alll/all Sel'ere 'Feather Ilail alld wind can cause a great deal of damage in a severe storm, so inspect the house after such weather. Promptly report damage caused by severe weather to your insurance Company. Please note: Haubertl/omes does not warrant repairs to damage caused by weather. Staill For minor interior stain touch-ups, a furniture-polish-and_stain treatnH:nt is inexpensive, easy to use, and will blend in with the wood grain. Follow directions on the bottle. TOl/ch-Up When doing paint touch-ups, use a small brush, applying paint only to the damaged spo!. Touch-up may not match the surrounding area exactly, even if the same paint mix is used. When it is time to repaint a room, prepare the wall surfilces first by cleaning with a mild soap and water mixture or a reliable cleaning product. We provide samples of each paint used on your home. Sture these with the lids tightly in place and in a location where they are not subjectcd to extreme temperatlll"e~. 'Fall Cracks We suggest that you wait until after the first heating season to repair drywall cracks or other separations due to shrinkage. See also D'YIFall. llaubert Homes Limited Wanoanty Guidelines During your orientation we will confirm that all painted or stained surfaces are in acceptable condition, Haubert Homes will touch up paint as indicated on the urientation list. You are responsible for all subsequent touch-up, except painting we perfurm as part of anuther warranty repair. Crackillg ,~ As it ages, exterior wood trim will develop minor cracks and raised grain. Much of this will occur during the first year. Raised grain permits moisture to get under the paint and can result in peeling. This is not a defect in materials or workmanship. Paint maintenance of wood trim and gutters is your responsibility. '-~ 61 n"] (-'; r:~ ~~~ i.~~: )>c: -7 :2 () C. ..;" ...., C:.':l l.:.:~ "'- U', P1 -0 r..> c::> ~ ~ :Be ~., :> "~ ':? ~; """""In ~~ "",,.. 'rJ "'< -u :x r:-? .&:'" -J ANNICK BARNINGER, Plaintiff v. HAUBERT HOMES, INC. Defendant TO: Annick Barninger, Plaintiff c/o R. Mark Thomas, Esquire 101 South Market Street Mechanicsburg, PA 17055 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-4414 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you, Date: November 9, 2004 METTE, EVANS & WOODSIDE ANNICK BARNINGER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 03-4414 CIVIL HAUBERT HOMES, INC. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND NOW comes the Defendant, Haubert Homes, Inc., by and through its counsel METTE, EVANS & WOODSIDE and avers the following in response to the Plaintiffs First Amended Complaint: 1. Admitted, upon information and belief. 2. Admitted. 3. Admitted. 4. Denied as stated. It is admitted that while the home was under construction, Plaintiff entered into an agreement to purchase the home. All other avemlents set forth in Paragraph 4 are denied as the Agreement of Sale is a written document and as SUl~h speaks for itself. 5. Denied. The averments of paragraph 5 are a conclusion of law to which no response is required by the Pennsylvania Rules of Civil Procedure. COUNT I BREACH OF CONTRAC1[ 6. The averments of paragraphs 1 - 5 are incorporated herein by reference as though fully set forth. 7. Denied. The averments of paragraph 7 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required it is specifically denied that the Defendant was negligent in the construction of the house or failed to construct the house in an acceptable workmanlike mamler. 8. Denied. The averments of paragraphs 8 (a)-(g) are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the sub-paragraphs of paragraph 8 are responded to as follows: (A) It is specifically denied that Defendant improperly applied or negligently failed to apply concrete sealer to the outside of the subsurface concrete and masonry block foundation walls; to the contrary, sealer was properly applied by Defendant's subcontractor. (B) It is denied that Defendant improperly and! negligently constructed the footer drains around the foundation walls; to the contrary, the footer drains around the foundation walls were properly and appropriately constructed. (C) It is denied that Defendant improperly and negligently back filled around the foundation walls; to the contrary, Defendant's subcontractor properly back filled around the foundation walls in a manner that was not negligent. (D) It is denied that Defendant improperly and negligently back filled an underground utility trench extending from the drive way to the south side of the house; to the contrary, Defendant's subcontractor properly and appropriately back filled an underground utility trench extending from the driveway to the south side of the house in a manner that was not negligent. (E) It is denied that Defendant improperly and negligently paved the driveway so as to leave a metal pipe and utility lid protruding several inches above the elevation of the paved driveway; to the contrary, Defendant's subcontractor properly paved the driveway in a manner that was not negligent. (F) It is denied that Defendant improperly and negligently performed the final grading on the east side of the house; to the contrary, Defendants subcontractor properly performed the final grading on the east side of the house in a manner that was not negligent. (G) It is denied that Defendant improperly and negligently installed and primed the molding around the garage doors; to the contrary, the molding around the garage doors was properly installed and appropriately primed in a manner that was not negligent. 9. Denied. The averments of paragraphs 9 (a)-(f) constitute conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the Defendant responds that after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraphs 9 (a)-(f) and therefore same are denied with strict proof thereof demanded at the time of trial. 10. Denied. The averments of paragraph 10 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the Defendant responds that after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 10 and therefore same are denied with strict proof thereof demanded at the time of trial. 11. Denied. The averments of paragraph 11 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the Defendant responds that after reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 11 and therefore same are denied with strict proof thereof demanded at the time of trial. WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiffs claim for relief and enter judgment in favor of the Defendant together with such other relief as the Court deems just and reasonable under the circumstances. COUNT II BREACH OF EXPRESS WARRANTY 12. The averments of paragraphs 1 - 11 are incorporated herein by reference as though fully set forth. 13. Denied. The averments of paragraph 13 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the averments of paragraph 13 are specifically denied as the Agreement of Sale is a written document and as such the terms of same speak for themselves. 14. Denied. The averments of paragraphs 14 (a)-(c) constitute conclusions oflawto which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the averments of paragraphs 14 (a)-(c) are specifically denied as the alleged warranties are contained in a written document and as sw~h speak for themselves. 15. Denied. The averments of paragraph 15 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 16. Denied. The averments of paragraph 16 are conclusions oflaw to which no response is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiffs claim for relief and enter judgment in favor of the Defendant tog~~ther with such other relief as the Court deems just and reasonable under the circumstances. COUNT III BREACH OF IMPLIED WARRANTY 17. The averments of paragraphs 1 - 16 are incorporated herein by reference as though fully set forth. 18. Denied. It is denied the Defendant is a builder/v\~ndor who buys land and builds homes upon that land for purpose of sale to the general public. To the contrary, the Defendant is a home builder which constructs among other structures, single family and townhome dwellings for sale. While Defendant sometimes owns the land upon which homes are constructed, it also constructs houses for parties who own their own land. 19. Denied. The averments of paragraph 19 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 20. Denied. The averments of paragraph 20 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 21. Denied. The averments of paragraph 21 are condusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 22. Denied. The averments of paragraphs 22 (a)-(g) are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the averments of paragraphs 22 (a)-(g) are specifically denied as the house in question was built in a reasonable and workmanlike manner and no breach of implied warranty exists. By way of further response, Defendant incorporates herein its responses to paragraphs 8 (a)-(g) as though fully set forth. 23. Denied. The averments of paragraphs 23 (a)-(t) are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required the averments of paragraphs 23 (a)-(f) are spedfically denied as Defendant built the house in a good and workmanlike manner. By way of further response Defendant incorporates herein its responses to paragraphs 9 (a)-(f) as though fully set forth. WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiffs claim for relief and enter judgment in favor of the Defendant together with such other relief as the Court deems just and reasonable under the circumstances. NEW MATTER 24. Defendant's responses to paragraphs 1-23 are incorporated herein by reference as though fully set forth. 25. Plaintiffs Complaint fails to state a claim against Haubert Homes, Inc. upon which relief can be granted. 26. Plaintiffs claims are barred by the applicable Statute of Limitations. 27. Plaintiffs claims are barred by the terms of the Agreement between the parties. 28. Plaintiffs claims are barred by the doctrine of waiver. 29. Plaintiffs claims are barred by the doctrine of estopple. 30. Plaintiffs claims are barred by the doctrine oflaches. 31. Plaintiff s claims for relief are barred in whole or in part by the doctrines of contributory or comparative negligence. DATED: November 9, 2004 Respectfully subm itted, METTE, EVANS & WOODSIDE By: 3 orth Front Street' - P.O. Box 5950 Harrisburg, P A 171.10-0950 (717) 232-5000 Attorneys for Defendant Haubert Homes, Inc. .t. VERIFICATION I, JENNIFER A. Y ANKANICH, ESQUIRE, counsel for Haubert Homes, Inc., hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I base my knowledge, information, and belief solely upon the information provided by my client. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. DATE: November 9,2004 CERTIFICATE OF SER"1CE AND NOW, this 9th day of November, 2004, I hereby <:ertify that I have served the foregoing document on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed as follows: R. Mark Thomas, Esquif(~ 101 S. Market Street Mechanicsburg, P A 17055 Respectfully submitted, METTE, EVANS & WOODSIDE Date: November 9,2004 409208vl C) I"-.:l 0 " :-l ;. t.:: , -1'1 .' ~}-~- -;fllr --{ ~ "..!". . -r 1-'- C~, f:l J:J "'1;,:": I -, I ;TI ~:"] r:-J \..0 : , .1. ! '. ~J -"."l ! ( l -. ., j'''(1 (,,1 ( ,.) .:_~I .. " W ..~< ANNICK BARNINGER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 03-4414 Civil HAUBERT HOMES, INC., Defendant : JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND NOW, comes the plaintiff, Annick Baminger, by and through her counsel, R. Mark Thomas, Esq., and responds as follows to the defendant's new matter: 24. No answer required. 25. Denied. This allegation is a conclusion of law to which no response is required and therefore same is denied. 26. Denied. This allegation is a conclusion of law to which no response is required and therefore same is denied. 27. Denied, The terms of the Agreement are as set forth in the exhibits attached to Plaintiff's Complaint. At all times relevant hereto the plaintiff complied with the terms of the Agreement and therefore it is denied that her claims are barred by the terms of the Agreement. 28. Denied. This allegation is a conclusion of law to which no response is required and therefore same is denied. 29. Denied. This allegation is a conclusion of law to which no response is required and therefore same is denied. 30. Denied. This allegation is a conclusion of law to which no response is required and therefore same is denied. VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, infonnation and belief. I understand that false statements herein are made subject to the penalties 'of 18 Pa. C.S. S4904, relating to unsworn falsification to authorities. Date: AlJH': ~ ?f!ff I ~~~J& . ~ Annick Baminger f CERTIFICATE OF SERVICE I, R. Mark Thomas, Esquire, hereby certify that I have served a true and correct copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Mechanicsburg, Pennsylvania, First Class Postage pre-paid, addressed to: Jennifer A. Yankanich, Esquire 3401 North Front Street Harrisburg, P A 17110-0950 Date: )J tv: ~ ;2()~ r R. Mark Thomas, Esq. .i. j >. en (: (~ (,:;J ""~. ::d':: 1-- ...:l" E~ '$ U.Jq ( ) .~,~ :c <--";?':( r:;-e, CL. ':L ,1=5 ~"i: 1- 06 0 --.... >- 6'~" .~? u_ (YO) WO- p;:J ll.l :::0- c::> 'JJiU ~:c .'- i'1) (:I... 1-- -- ....~... I..L. ..::r ~j <:::.:> 0 C> U C""-i '. .~~. 1, I ANNICK BARN INGER , Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-4414 CNIL v. HAUBERT HOMES, INC. Defendant RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, TIlE JUDGES OF SAID COURT: R. Mark Thomas respectfully represents that: 1. The above-captioned action ~IIDI>) is (aoU<at issue. 2. The claim of the plaintiff in the action is $ 20, 368 . 00 The counterclaim of the defendant in the action is N / A , counsel for the plaintiffAilIll\JMJAKt in the above action (or actions), The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: R. Mark Thomas, Esq., Jennifer A. Yankanich, Esq. and David A. Fitzsimons,Esq. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ~~ ORDER OF COURT AND NOW, _ _, in consideration of the foregoing petition, Esq., and actions) as prayed for. Esq., , Esq., are appointed arbitrators in the above captioned action (or By the Court, P.J. r:J ~ ~ 1 ~ C> C> C) ....., 0 N -v = c = 'TJ ..t: < "" F "T]<T; C- ~:IJ ~ [T~I:--n r;=; ;;;>'-'--, ~I ~ . ~ i~S:, , -', - c:: :C. ~ ~--..,' -0 2~ 2'~ " ::Jr >" . c: - ~ z .. ~ =< w en -<: . ., Plaintiff ) ) ) ) ) In the Court of Common Pleas of Cumberland County, Pennsylvania No. -.ilL - 4414 Civil Action ~ Law Annick Barninger Haubert Homes Inc. Defendant OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of J:;~ ~ ffL ,gnature Slgnat e;......- James M Bach 1-.-A lA (',J... ee B . r3A fe , Name (Chairman) Name James M Bach Attornev at Law Law Firm YYt M~ 0 I;,. fd eJs:fc t'N Law Firm 35'10 JR'JVdf-- fr],c.-<{ Address 352 S Sporting Hill Road Address Mechanicsburl!; PA 17050 City, Zip C~A-i;.> k City, PA Zip / .. 10 ~ 'i') non Ii IOI"\' AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) We find in favor ofthe Plaintiff in the amount of $4000.00 (Four Thousand Dollars) without any admission of liability on part of Defendant. Defendant agrees to repair East side of driveway and yard and re-grade north side of yard . Arbitrator, dissents. (Insert name if applicable.) Date of Hearing: January 6. 2006 Date of Award: January 6, 2006 NOTICE OF ENTRY OF AWARD tv Now, the It ~da upon tht')locket and of I ' // Prothonotary f JhILu.L 200~at J ;jq, fJ M., the above award was entered thereof given by mail to the parties or their attorneys. By: Deputy /' Arbitrators' compensation to be paid upon appeal: $ ~ ,/ouv o ~ -f.)(i~ ~:}.' c.6., . r':::l ~. .J;7'l_<, "',~. ( , 5,.-' Z -., .-<. \> ~^'~1 ~t\ c,b\ y ~."" i't \ ~ '"" .. r--:> c=> "'" L~ :]I; ". ::0 o -'1 :r...,., nl-;:::.. [... -0'" ;~~~ 9. )15 '< 0'> ." 3 ~ ..n . 'f'cJ" In The Court of Common Pleas of I\NNICK BI\RNINGER PLAINTIFF ) ) ) ) ) ) ) Cumberland County, ?ennsylvania v. HAUBERT HOMES INC DEFENDANT :-l0.03 , 4414 civil OATH l~e do solemnl)' svear (or affi:-m) that "e "ill supuon. obey and defend the Constitution of the United States and the C.:mstitut;l,oa of this C01lll!ton- "ealth mnd that we "ill discharge the duties of our office "~th fidelity. 17 7 - ~r or S. a r:nan AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are 3"arded, they shall be separately stated.) applicable. ) . Arbitrator, Date of Hearing: j-- t ~() & . (- Ie ~ ~/:' Date of Award: NOTICE OF ENTRY OF AWARD Now, the day of avard was entered upon the docket ?srties or their attorneys. . 19 ,at . ~l., the aboV'e and notice thereof giVen bY-mail to the Arbitrators' compensation to be paid upon appeal: $ Prothonotary By: Oeauty