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Home My WebLink About04-0638 - ./ Mark E. Bowser Plaintiff v. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 04-638 : JURY TRIAL DEMANDED Judith Ann McComas Defendant PRAECIPE TO THE PROTHONOTARY: Please enter judgment by consent of the parties against the defendant and in favor of the plaintiff in the amount of SEVEN THOUSAND ($7,000.00) Wil . . Adler, Esquire Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, P A 17108 717-234-3289 ~~39~ WIer ad erandadler.net Batbara S pIe-Sullivan, Esquire Attorney for Defendant 549 Bridge St. New Cumberland, P A 17055 Dated: January 10, 2007 . MARK E. BOWSER, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW JUDITH ANN McCOMAS, Defendant : NO. 04-638 : JURY TRIAL DEMANDED CONSENT AGREEMENT WHEREAS, plaintiff filed this action against defendant; and WHEREAS, plaintiff and defendant have agreed to settle this matter with the entry of judgment against defendant in the amount of $7,000.00. NOW THEREFORE, plaintiffand defendant agree that judgment should be entered against defendant and in favor of plaintiff in the amount of $7,000.00. ~IL~ William L. Adler, Esquire Attorney" for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, P A 17108717-234-3289 Supreme Court ID Number 39844 Wmadler@adl dadler.net Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Defendant ;9..5 ~ i /'0/(1'-; F~bujalY i, 2001 (:) 10.. t -p \ ~ ~ ~ 0 0- r-) s=:2 C.) ~ - ::::i -r1 "Q qj -J ~"': .-l - :'~c-;t ~; :!J --0 ~ f :~J c::. ~ l \-1j- ...0 \.D (.) ~ W 1 .:- -0 ~ ~ -'"" .~- j r'.,) -- f , -...- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN H. MYERS & SON, INC. PLAINTIFF : NO. 06-7196 CIVIL TERM VS. QUALCRAFT CONSTRUCTION LLC DEFENDANT : NOTICE OF FILING JUDGMENT PRAECIPE FOR JUDGMENT ENTER JUDGMENT in the above captioned case for failure to file, or enter, an Answer pursuant to Rule PA R.C.P. 237.1, a Notice of Intent to enter a Default Judgment was sent to Defendant, Qualcraft Construction LLC, on January 22, 2007, by first class mail against Qualcraft Construction LLC in favor of John H. Myers & Son, Inc. in the sum of $291,075.72 with interest at the legal rate Total: $291,075.72 plus interest and costs ofsrl t!!Q I~\ . {/ I I { I I /ANDREA EVELER S;ANLEY, ESQillRE (NO. 34347 ATTORNEY FOR PLAINTIFF EVELER & EVELER, LLC 110 WEST BROADWAY RED LION, PA 17356 (717) 246-3022 ~ (: J... 2 ' 2007 Judgment entered by the Prothonotary this day according to the tenor of the above sta ement. ~~a4y I. OFFICE OF THE PROTHONOTARY OF CUMBERLAND COUNTY CURTIS R. LONG PROTHONOTARY TELEPHONE (717) 240-6195 CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE, PENNSYLVANIA 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF: John H. Myers & Son. Inc. versus DEFENDANT: Oualcraft Construction LLC JUDGMENT NO. 06-7196 Civil Term CERTIFICATE OF RESIDENCE PA R. C. P.236 I, hereby certify that the precise residence of Plaintiff is: 2200 Monroe Street, P. O. Box 1924, York, PA 17405 and certify that the last known address of the within Defendants is: c/o Scott A. Plowman, 73 Walmar Manor, Dillsburg, P A 17019 ~0C2 ! ANDREA EVELER STANLEY, ESQUIRE No. 34347 Attorney for Plaintiff EVELER & EVELER, LLC 11 0 West Broadway Red Lion, P A 17356 (717) 246-3022 t ~ ~\\- - \' ~ '- \3 ~ ~ .c: is ~ ..c:.. -. ~ ~ J.q. ...0 . o \) -J ?- 'D +- r - f,?::; c> ~~) -"n --' \ -1 --' ..j ~" -~ (.;.,:~ t'--"I s;:- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN H. MYERS & SON, INC. PLAINTIFF : NO. 06-7196 Civil Term VS. QUALCRAFT CONSTRUCTION LLC DEFENDANT : NOTICE OF FILING JUDGMENT ( X) Notice is hereby given that a judgment in the above-captioned matter has been entered against you in the amount of $291,075.72 on (f) > ~ "'- '/ ' 2007. (X) A copy of all documents filed with the Prothonotary in support of the within judgment is/are enclosed. Prothonotary Civil Div. by: If you have any questions regarding this Notice, please contact the filing party: NAME: ANDREA EVELER STANLEY, ESQUIRE NO. 34347 ADDRESS: 110 WEST BROADWAY RED LION, P A 17356 TELEPHONE NO.: (717) 246-3022 Notice sent to: NAME: QUALCRAFT CONSTRUCTION LLC ADDRESS: C/O SCOTT A. PLOWMAN 73 W ALMAR MANOR DILLSBURG, PA 17019 Mark E. Bowser Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW Judith Ann McComas Defendant : NO. 0'+- b3<6 c~ : JURY TRIAL DEMANDED .!'!QI.I~& 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 Ave. Carlisle, PA 17013 (717) 249-3166 J:lQT.I.[.I8 Le han demandado a usted an la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado gue si usted no se defienda, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier gueja 0 alivio gue es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO 1NMED1ATAMENTE. S1 NO T1ENE ABOGADO 0 S1 NO T1ENE EL D1NERO SUF1C1ENTE DE PAGAR TAL SERV1C10, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OF1C1NA CUYA D1RECC10N SE ENCUNENTRA ESCR1TA ABAJO PARA AVER1GUAR DONDE SE PUEDE CONSEGU1R AS1STENC1A LEGAL. Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 v. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA : CIVIL ACTION - LAW : NO. 0'1- (,J'j Mark E. Bowser Plaintiff Judith Ann McComas Defendant : JURY TRIAL DEMANDED COMPLAINT AND NOW COMES the plaintiff, Mark E. Bowser, through his attorneys, Adler & Adler, and respectfully represents the following: I. Mark E. Bowser, Plaintiff, is an adult individual with a principal residence located at 1011 Apache Trail, Mechanicsburg, PA 17055. 2. Judith Ann McComas, Defendant, is an adult individual residing at 418 Stonehedge Lane, Mechanicsburg, P A 17055. 3. On April 30, 2002, plaintiff purchased 1011 Apache Trail, Mechanicsburg, PA 17055 (hereinafter, "the Property") from defendant for the purchase price of $224,000.00. 4. In February of2003, plaintiff and his family experienced problems flushing toilets in the Property. 5. The Property was serviced by a septic system at the time plaintiff purchased it. 6. Upon inspection after experiencing problems with the toilets, plaintiff found that the septic system was not functional and defective. 7. On or around February of2003, plaintiff had the septic system pumped by Hoke Septic to empty the tanks to determine if that was the problem with the system. 8. Hoke Septic found that the drainfield for the septic system was not functioning in that water flowed back from the drainfield into the system as they pumped to try to empty the tanks. 9. Hoke Septic actually pumped approximately 1600 gallons from a 1000 gallon tank. 10. Plaintiffs contacted Upper Allen Township, and it was determined that the septic system had to be replaced. II. The drainfield servicing the system was clogged and no longer functional. 12. Defendant knew that the septic system was defective at the time she sold the property to plaintiff. 13. Hoke Septic Service was hired by defendant to pump out the septic system on April 8, 2002. 14. Jeanne Quigley, of Hoke Septic, did the pumping of the tanks. 15. Jeanne Quigley noted on the invoice to defendant that the tank was overfull, that there was water flowing back from the drainfield during and after pumping. 16. This invoice was delivered to defendant. 17. Jeanne Quigley and her father told defendant that there was a problem with the septic system on or around April 8, 2002. 18. By letter of June 7, 2001, Dillsburg Septic, Excavating & Paving, Inc. sent a report to defendant stating that they did an inspection on June 6, 2001 and noted that "When we did the inspection, water drained back from the drainfield. You will need a permit from the Township to correct this problem." 19. On June 20, 2001, defendant made an application with the Township of Upper Allen to replace her septic system. 20. Defendant paid for this application. 21. The reason given on the application was for "repair." 22. On July 2, 2001, defendant applied for a repair permit. 23. Around that time, the soil testing was done to determine suitability for a new septic system. 24. In September of 200 I, the township engineer informed defendant about the next steps required to replace the septic system on the Property. 25. In 1987, defendant drained wastewater from the laundry to a French drain. 26. Plaintiff will incur costs to pump the laundry wastewater into the new septic system. 27. Plaintiff incurred expense in the amount of$299.27 for carpet cleaning due to laundry water backing up into the basement due to the improper disposal method of the laundry water. 28. Plaintiff spent $187.67 to replace the sump pump clogged with laundry detergent. 29. Defendant was informed by the Township that this problem had to be corrected. 30. Defendant failed to correct this problem properly before selling the Property to plaintiff by not tying this to the septic system. 31. Plaintiff will incur yearly inspection fees for the new septic system that must be installed together with costs every five to seven years of approximately $1,500.00 for removal and replacement of the peat moss in the system. 32. Plaintiff has suffered damages to date to correct the septic problems as follows: 3/9103, Pump septic, Hoke Septic ...................................... 250.00 3/13/03, Emergency septic tank pump (Don Rinehart) . . . . . . . . . . . . . . . . . . . . 400.00 3/13/03, Replacement toilets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 620.32 4/25/03, Pump septic prior to excavation to determine why toilets would not flush. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 165.00 4/25/03, Excavation of septic tank. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 150.00 5/7/03, Hoover Engineering, design new septic system .................... 350.00 5/15/03, Ecoflo STB-650 system cost (estimate) .........................5,800.00 10/03, Installation ofEcoflo system (estimate) . . . . . . . . . . . . . . . . . . . . . . . . 19,400.00 10/03, additional pump tank and pump required. . . . . . . . . . . . . . . . . . . . . . . . .. 800.00 3/03 to 10/03, cost to pump portable toilet in driveway that family had to use while septic system inoperable. . . . . . . . . . . . . . . . . . . . . . . .. 770.00 10/1102, Cleaning old line from house to septic tank ...................... 269.00 11103, attempt to dry ground to complete installation. . . . . . . . . . . . . . . . . . . . .. 300.00 Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29,274.32 WHEREFORE plaintiff respectfully requests damages in an amount exceeding $30,000.00 including costs of suit and attorneys' fees. COUNT I - FRAUD 33. Paragraphs one through 32 are incorporated herein by reference. 34. Defendant failed to disclose any of the defects in the septic system on the Property to plaintiff before settlement. 35. Defendant knew of the defects with the septic system before settlement in April of2003. 36. Defendant intentionally misrepresented the condition of the septic system by failing to disclose its actual condition. 37. Plaintiff relied on the misrepresentations of defendant in purchasing the Property. 38. Defendant's misrepresentations were made falsely, with knowledge oftheir falsity, with recklessness as to whether they were true offalse and with the intent of misleading plaintiff into relying on them. 39. Plaintiff justifiably relied on the misrepresentations by defendant with resulting injury proximately caused by this reliance. WHEREFORE, Plaintiff respectfully requests a judgment against defendant in an amount exceeding $30,000.00 including costs of suit and attorneys' fees. COUNT II - BREACH OF SELLERS DISCLOSURE ACT 40. Paragraphs one through 39 are incorporated herein by reference. 41. 68 Pa.C.S. Sections 7303 requires that sellers disclose material defects to the buyer of real property by completing all applicable items in a property disclosure statement which satisfies the requirements of 68 Pa.C.S. Section 7304. 42. Defendant failed to deliver the property disclosure statement as required by 68 Pa.C.S. Section 7304 to plaintiff by any method as set forth in 68 Pa.C.S. Section 7305. 43. Defendant knew ofthe defects in the septic system on the Property, in that this infonnation had been delivered to defendant orally and in writing before settlement. 44. As a result of defendant's misrepresentation by omission, plaintiff has suffered damages as set forth above. WHEREFORE, plaintiff respectfully requests damages in an amount exceeding $30,000.00 including costs of suit and attorneys' fees. COUNT III - VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 45. Paragraphs one through 44 are incorporated herein by reference. 46. Section 201-3 ofthe Unfair Trade Practices and Consumer Protection Law, 73, P.S. Section 201-3, prohibits engaging in any fraudulent or deceptive conduct which creates the likelihood of confusion or misunderstanding under 73 P.S. Section 201-2(4)(xxi). 47. Defendant failed to disclose known material defects in the Property to plaintiff before settlement. 48. 73 P.S. Section 201-9.2 provides for damages to a p1aintiffby private action in an amount up to three times actual damages sustained in addition to costs and reasonable attorneys' fees. WHEREFORE, plaintiff respectfully requests three times his actual damages in addition to costs of suit and reasonable attorneys' fees. 4A/~j!l{?;v Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, P A 17108 717-234-3289 Supreme Court ID Number 39844 Dated: February 12,2004 VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN F ALSIFICA TION TO AUTHORITIES. DATE: d-/I.l( OLf 1fv(~ l:~~ Mark Bowser (" 0 , ?'"O ') \,' 0- ---- .-.r: - , .....j -..J <..J', L..J'>, -'" - 0\ <.-N - fD J '---.J'-, d (J-, . ' v....- (" ~ , ....., c;:> 5.~ -n f'l eo:; -:'. ~-' (/) (.J o -n -l -r fi,:D -nM ,'.c::: ~---~; ~~~, ,.:~;.~ ~. i'. I') - ~ \ y :,iJ -< o SHERIFF'S RETURN - REGULAR CASE NO: 2004-00638 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BOWSER MARK E VS MCCOMAS JUDITH ANN ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MCCOMAS JUDITH ANN the DEFENDANT , at 0929:00 HOURS, on the 23rd day of February, 2004 at 448 STONEHEDGE LANE MECHANCI SBURG , PA 17055 by handing to JUDITH A MCCOMAS a true and attested copy of COMPLAINT & NOTICE together with REQ FOR ADMISSIONS & INTERROGATORY, REQ FOR PROD OF DOCUMENTS, INTERROGATORIES and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 7.59 .00 10.00 .00 35.59 So Answers: r~~~ R. Thomas Kline me this .2.-....,,( day of 02/24/2004 WILLIAM L ADLER ~/~~ ~ ~/. -:tJ. -. ~ Deputy rih Sworn and Subscribed to before '1l.zv..JJ diM V A. D. Cl<<u Q 1u..Jtl') LAI':. ----,. /Prothonotary 1-,1 Barbara Sumple-SuUivan, Esquire Supreme Court #32317 549 Bridge Street New Cwnberland, P A 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW COMES the Defendant, Judith Ann McComas and files Preliminary Objections to Plaintiff's Complaint in accordance with Pa. R.CP. 1028. I. MOTION TO STRIKE: I. Plaintiff's complaint must be stricken since it fails to conform to Pa. Rules of Court as follows: a) Plaintiff's cause of action arises from the sale of real estate occurring between the Plaintiff and the Defendant. In violation ofPa. R.C.P. 1019 (h), Plaintiff fails to aver whether said agreement was oral or written, and if written, to append a copy of the agreement to the pleading Plaintiff's complaint is in non-compliance with the Rules of Civil Procedure and should be stricken. b) Plaintiff's cause of action avers fraud. Plaintiff has failed to plead facts necessary to establish common law fraud with the required specificity required pursuant to Pa. R.CP. 1019 (a) in that Plaintiff has failed to specify the material misrepresentations which were allegedly made, when said material misrepresentations concerning the septic were alleged to be made by Defendant and the time period when same were alleged to apply to. n. DEMURRER: 1. Plaintiff's complaint fails to set forth a cause of action under the statute creating the Pennsylvania Unfair Trade Practices and Consumer Protection Act. III. MOTION FOR MORE SPECIFIC PLEADING: 1. Paragraph 11 avers that the drainfield servicing the system was clogged and no longer functioning. Defendant requests that Plaintiff more specifically plead the nature of the clog and the date and circumstances underlying the pleading that the system was no longer functional. 2. Paragraph 36 avers that Defendant intentionally misrepresented the condition of the septic system by failing to disclose its actual condition. Defendant requests that Plaintiff be required to more specifically plead the condition which the Defendant allegedly represented to Plaintiff was the condition of the septic prior to sale and aver what he believed was the actual condition at or prior to the sale. 3. Paragraph 46 of the Complaint alleges that Plaintiff violated the Unfair Trade Practices Act and cites Section XXI of the Act. This statute states, "engaging in 2 any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." Plaintiff must plead specifically what this conduct consisted of. Dated: March 15, 2004 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 Supreme Court J.D. 32317 Attorney for Defendant 3 Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of Defendant's Preliminary Objections to Defendant's Complaint, in the above-captioned matter upon the following individual by first class mail, postage prepaid, addressed as follows: William 1. Adler, Esquire Adler & Adler P.O. Box 11933 125 Locust Street Harrisburg, P A 1710 Barbar Sumple-Sullivan, Esquire Supreme Court rD No. 32317 549 Bridge Street New Cumberland, P A 17070 Attorney for Defendant (717) 774-1445 DATED: March 15, 2004 Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant ANSWERS TO REOUEST FOR ADMISSIONS I. a. Admitted. b. Admitted. c. Admitted. d. Admitted. e. Admitted. f. Denied. Defendant has no record of receipt of this invoice. Defendant admits that she contracted for the work to clean the tank pursuant to the Real Estate Sales Agreement between the Plaintiff and Defendant. Defendant admits she paid for the work and has the cancelled check for same. Defendant believes the check was presented to Hoke Septic System at her home when work was completed. Defendant has no record of receipt of the invoice. 2. Admitted in part. Denied in part. It is admitted that Jeanne Quigley of Hoke Septic System Service told Defendant of water run back. It is denied that Jeanne Quigley told Defendant that the runback was causing the septic tank to be overfilled and that the septic system on the property was in need of repair. When Jeanne Quigley told Defendant of the runback, Defendant explained that said condition was noted and that she had hired all independent expert (Ecotech) to review the status ofthe system and the system was determined to be satisfactory. 3. Denied. By way of further answer, Defendant incorporates her response to request 1.f. and 2 specifically. Defendant denies that Jeanne Quigley told Defendant the tank on the property was in need of repair. Exhibit G also does not indicate the system was in need of repair. 4. Denied. Defendant advised Plaintiff that the tanks had been cleaned per the parties' agreement. Defendant did not specifically again tell Plaintiff about the water runback after the August, 2002 cleanup but had advised of this condition before. Defendant denies Hoke told Defendant the system was in need of repair. 5. Admitted in part. Denied in part. It is admitted that Defendant did not advise Plaintiff of Exhibit A and Exhibit B. Defendant did advise Plaintiff of the contents and occurrences generating Exhibits C through G. 6. Denied. Defendant personally gave a copy of the property disclosure form to Plaintiff and Plaintiff acknowledged receipt at the closing. 7. Denied. The Echotech Report was available to both Plaintiff and Plaintiff's counsel. Defendant believes Plaintiff reviewed same. No request was made for a copy. 2 8. Denied. Defendant did advise of the application and the circumstances of same. Defendant never paid for the application and therefore did not disclose payment. Dated: March 24, 2004 'Barbara umple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 Supreme Court J.D. 32317 Attorney for Defendant 3 Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant VERIFICATION I, Judith Ann McComas, hereby certify that the facts set forth in the foregoing Defendant's Answers to Request for Admissions are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: March2.t, 2004 ~:!!!M~.m~ Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of Defendant' s Answers to Request for Admissions, in the above-captioned matter upon the following individual by first class mail, postage prepaid, addressed as follows: William 1. Adler, Esquire Adler & Adler P.O. Box 11933 125 Locust Street Harrisburg, PA 17108 " Barbara Sumple-Sullivan, Esquire Supreme Court J.D. No. 32317 549 Bridge Street New Cumberland, P A 17070 Attorney for Defendant (717) 774..1445 DATED: March 24,2004 r:-) ....., C) C~:> C.'J --n ...- .-1 =- - '''," hel::J :.:;j c:: "T) ~~ r-,' """ , r) " --n -) , . n i<3 .. C) -, \D PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten am subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the nE~t Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) MARK E. BOWSER ( plaintiff) vs. JUDITH ANN MCCOMAS ( DefeOOant ) No. 04-638 Civil 19 1. State matter to be argued (i.e., plaintiff's ITotion for new tr:ial, defendant's demurrer to complaint, etc.): PRELIMINARY OBJECTIONS OF DEFENDANT 2. Identify counsel ",no will argue case: (a) for plaintiff: WILLIAM L. ADLER Address: 125 LOCUST STREET, HARRISBURG PA 17101 (b) for defendant: BARBARA SUMPLE-SULLIVAN Address: 549 BRIDGE STREET, NEW CUMBERLAND PA 17070 3. I will notify all parties in writing within b<<) days that this case has been listed for argurent. 4. ArgLrnent Court Date: FEBRUARY 2, 2005 Dated: w.L-.~ Attorney for p , ~ .." +; F-F >~. b: "'.[" 1'-- (-" ~~,{ ( ) 1._ 'T c.~, ali~ 1.lJ D- ;-;.11_1.1 ~-f- t= lL o ...:J.~ ~: : ~-: ~- ...:. 0..: r- I W Ld Cl ..:::r- c:::> = ~ _...:~ (,) #23 MARK E. BOWSER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. JUDITH ANN MCCOMAS : NO. 2004-0638 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLEa. GUIDO. J.J. ORDER OF COURT AND NOW, this 11 TIl day of FEBRUARY, 2005, the parties having agreed that Plaintiff will file an Amended Complaint and attach a copy of the Agreement of Sale and Seller's Disclosure Statement executed in connection with the underlying transaction, Defendant's Preliminary Objections are DISMISSED. Edward E. Guido, J. William 1. Adler, Esquire 125 Locust Street P.O. Box 11933 Harrisburg, Pa. 171 08 - / . I.' ~ .l5.().~ ~ ,/tYl.~: Lj~. 7" Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, Pa. 17070 :sld ') '" ',\',' q " '1. - Mark E. Bowser Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION - LAW Judith Ann McComas Defendant : NO. 04-638 Civil : JURY TRIAL DEMANDED !:J.QI.I.G.& 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 L.I\WYER 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 Ave. Carlisle, P A 17013 (717) 249-3166 1J.QI.I!;;'.Ili Le han demandado a usted an la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado gue si usted no se defienda, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier gueja 0 alivio gue es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUNENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Ave. Carlisle, P A 17013 (717) 249-3166 v. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW Mark E. Bowser Plaintiff Judith Ann McComas Defendant : NO. 2004-0638 Civil Term : JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW COMES the plaintiff, Mark E. Bowser, through his attorneys, Adler & Adler, and respectfully represents the following: I. Mark E. Bowser, Plaintiff, is an adult individual with a principal residence located at 1011 Apache Trail, Mechanicsburg, PA 17055. 2. Judith Ann McComas, Defendant, is an adult individual residing at 418 Stonehedge Lane, Mechanicsburg, PA 17055. 3. On April 30, 2002, plaintiff purchased 1011 Apache Trail, Mechanicsburg, PA 17055 (hereinafter, "the Property") from defendant for the purchase price of $224,000.00. 4. A copy of the Agreement of Sale for the Property from defendant to plaintiff is attached hereto, as Exhibit "A." 5. In February of 2003, plaintiff and his family experiem:ed problems flushing toilets in the Property . -1- 6. The Property was serviced by a septic system at the time plaintiff purchased it. 7. Upon inspection after experiencing problems with the toilets, plaintiff found that the septic system was not functional and defective. 8. On or around February of2003, plaintiff had the septic system pumped by Hoke Septic to empty the tanks to determine if that was the problem with the system. 9. Hoke Septic found that the drainfield for the septic system was not functioning in that water flowed back from the drainfield into the system as they pumped to try to empty the tanks. 10. Hoke Septic actually pumped approximately 1600 gallons from a 1000 gallon tank. II. Plaintiffs contacted Upper Allen Township, and it was determined that the septic system could not be repaired. 12. The drainfield servicing the system was no longer functional. 13. Defendant knew that the septic system was defective at the time she sold the property to plaintiff. 14. Hoke Septic Service was hired by defendant to pump out the septic system on April 8, 2002. 15. Jeanne Quigley, of Hoke Septic, did the pumping of the tanks. 16. Jeanne Quigley noted on the invoice to defendant that the tank was overfull, that there was water flowing back from the drainfield during and after pumping. 17. This invoice was delivered to defendant. 18. Jeanne Quigley and her father told defendant that ther'~ was a problem with the septic system on or around April 8, 2002. 19. By letter ofJune 7, 2001, Dillsburg Septic, Excavating & Paving, Inc. sent a report to defendant stating that they did an inspection on June 6, 2001 and noted that "When we did the inspection, water drained back from the drainfield. You will need a permit from -2- the Township to correct this problem." 20. On June 20, 2001, defendant made an application with the Township of Upper Allen to replace her septic system. 21. Defendant paid for this application. 22. The reason given on the application was for "repair." 23. On July 2,2001, defendant applied for a repair permit 24. Around that time, the soil testing was done to determine suitability for a new septic system. 25. In September of2001, the township engineer informed defendant about the next steps required to replace the septic system on the Property. 26. In the fall of 2003 plaintiff actually began the installation of a new septic system because of the failure of the system that had not been repaired or replaced by defendant. 27. Plaintiff will incur costs every five to seven years of approximately $1,500.00 for removal and replacement of the peat moss in the system. 28. Plaintiff has suffered damages to date to correct the septic problems as follows: 3/9/03, Pump septic, Hoke Septic ...................................... 250.00 3/13/03, Emergency septic tank pump (Don Rinehart) . . . . . . . . . . . . . . . . . . . . 400.00 4/25/03, Pump septic prior to excavation to determine why toilets would not flush. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 165.00 4/25/03, Excavation of septic tank.. . .. . . . .. . .. . .. . . .. . . .. . . .. . . . . . .. .. 150.00 5/7/03, Hoover Engineering, design new septic system .................... 350.00 9/16/04 Ecoflo STB-650 system cost; Installation of Ecoflo system; additional pump tank and pump required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . .. 21,469.68 3/03 to 10/03, cost to pump portable toilet in driveway that family had to use while septic system inoperable . . . , . . . . . . . . . . . . . . . . . . . .. 770.00 -3- 10/1103, Cleaning old line from house to septic tank ...................... 269.00 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23,823.68 WHEREFORE plaintiff respectfully requests damages in an amount exceeding $30,000.00 including costs of suit and attorneys' fees. COUNT I - FRAUD 29. Paragraphs one through 28 are incorporated herein by re~erence. 30. Defendant failed to disclose any of the defects in the septic system on the Property to plaintiff before settlement. 31. Defendant knew of the defects with the septic system before settlement in April of2003. 32. Defendant intentionally misrepresented the condition ofthe septic system by failing to disclose its actual condition. 33. Plaintiff relied on the misrepresentations of defendant in purchasing the Property. 34. Defendant's misrepresentations were made falsely, with knowledge of their falsity, with recklessness as to whether they were true of false and with the intent of misleading plaintiff into relying on them. 35. Plaintiff justifiably relied on the misrepresentations by defendant with resulting injury proximately caused by this reliance. WHEREFORE, Plaintiff respectfully requests a judgment against defendant in an amount exceeding $30,000.00 including costs of suit and attorneys' f,:es. COUNT II - BREACH OF SELLERS DISCLOSURE ACT 36. Paragraphs one through 35 are incorporated herein by ref,:rence. 37. 68 Pa.C.S. Sections 7303 requires that sellers disclose material defects to the buyer of real -4- property by completing all applicable items in a property disclosure statement which satisfies the requirements of 68 Pa.C.S. Section 7304. 38. Defendant failed to deliver the property disclosure statement as required by 68 Pa.C.S. Section 7304 to plaintiff by any method as set forth in 68 Pa.C.S. Section 7305. 39. Defendant knew ofthe defects in the septic system on the Property, in that this information had been delivered to defendant orally and in writing before settlement. 40. As a result of defendant's misrepresentation by omission, plaintiff has suffered damages as set forth above. 41. Defendant's counsel did provide a copy ofa seller's disclosure statement to plaintiff after the filing of the complaint. A copy of that is attached as Exhibit "B." 42. Defendant had not received said statement before the filing of the complaint. 43. The Seller's disclosure statement provided in paragraph 8 of the statement that the on site sewage disposal system was functioning properly when in fact it was not. WHEREFORE, plaintiff respectfully requests damages in an amount exceeding $30,000.00 including costs of suit and attorneys' fees. COUNT III - VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 44. Paragraphs one through 43 are incorporated herein by reference. 45. Section 201-3 of the Unfair Trade Practices and Consumer Protection Law, 73, P.S. Section 201-3, prohibits engaging in any fraudulent or deceptive conduct which creates the likelihood of -5- confusion or misunderstanding under 73 P.S. Section 201-2(4)(xxi). 46. Defendant failed to disclose known material defects in the Property to plaintiff before settlement. 47. 73 P.S. Section 201-9.2 provides for damages to a plaintifIby private action in an amount up to three times actual damages sustained in addition to costs and reasonable attorneys' fees. WHEREFORE, plaintiffrespectfully requests three times his actual damages in addition to costs of suit and reasonable attorneys' fees. -.w-~L dler, Esquire Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 Dated: April 7, 2005 -6- AGREEMENT FOR SALE OF RE.\L ESTATE MADE TillS ~ 'f?:,t' I day of..o1M {L ,2002, between JUDITH ANN McCOMAS, (hereinafter referred to as "SELLER") and MARK E. BOWSER (hereinafter referred to as "BUYER"). WITNESSETH, that Seller agrees to sell and convey unto Buyer, his heirs or assigns, and Buyer agrees to purchase all that certain lot or tract of ground with any improvements and building erected thereon, known as 1011 Apache Trail, Mechanicsburg" Upper Allen Township, Cumberland County, Pennsylvania, and more fully described in Plan Book 15, Page 48 as Lot No.3 in the Plan of Lots of Martin 1. Myers, known as "Waseka Estates, Section 1" and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania. The current Deed for said property is attached hereto as Exhibit "A", which Deed is recorded at Deed Book X-32, Page 81 of the Recorder of Deeds of Cumberland County, Pennsylvania. 1. PURCHASE PRICE. Buyer hereby agrees to pay for said premises the following amount and in the following manner: Price: $224,000.00 Cash at the signing of the Agreement, receipt of which is hereby acknowledged, to be escrowed by Barbara Sumple-Sullivan, Esquire, 549 Bridge Street, New Cumberland, Pennsylvania 17070 $5,000.00 $219,000.00 Balance at Settlement TOTAL $224,000.00 2. FINANCING CONTINGENCY. This agreement is also subject to the Buyer's obtaining financing in the principal amount ofTWO HUNDRED TWELVE THOUSAND EIGHT HUNDRED DOLLARS ($212,800.00). Said mortgage shall be of the conventional type with a minimum term of thirty (30) years and a maximum initial int,erest rate of nine percent (9%) fixed. Terminal date for Obtaining Financing Commitment is April 15, 2002. Buyer shall make a completed application to a responsible lending institution for said loan within ten (10) days from signing of this Agreement of Sale. Should Buyer fail to make such completed application within the specified time, it shall be at the option of the Seller, within five (5) days thereafter, to: (I) Declare this agreement NULL AND VOID, at which time, all monies paid on account will be forfeited to Seller as liquidated damages, or 1 EKCb~t ':4 " (ii) In the absence of written notice to the Buyer by the Seller declaring this agreement NULL AND VOID, the condition and contingency provided for in this paragraph, together with any other financing contingencies that may be herein or endorsed he:reto, shall no longer prevail, and this agreement shall remain effective according to its terms in the same manner as if the condition and contingency were not a part hereto. Seller must receive a written commitment valid until the date of settlement. 3. SETTLEMENT. Settlement is to take place on or before April 30, 2002. Time is of the essence of this Agreement. 4. LOSS OF PURCHASE MONIES. Should Buyer fail to comply with the terms of this agreement, said agreement shall be considered NULL AND VOID, and Seller shall retain the above deposit as liquidated damages. 5. WOOD INFEST A TION. (a) Within fifteen (15) days of the date of this Agreement, Buyer shall, at Buyer's expense, order from a Pest Control Operator certified by the Pennsylvania Department of Agriculture a written "Wood Destroying Insect Infestation and Resultant Damage Report" and shall present said report to all other parties to the agreement. Such report is to provide that an inspection of the readily visible and accessible area of all structures within the property limits has been made satisfactory to and in compliance with applicable laws, mortgage and lending institutions, and/or Federal Insurance and Guaranteeing Agency requirements, if any. In the event this inspection is not completed within fifteen (15) days of the date of this Agre,ement, said contingency is deemed waived. (b) Buyer shall, upon receipt of said report, promptly provide a copy of the complete report to all parties to the agreement. If the inspection reveals evidence of active infestations(s) and/or previous infestations(s) which have not been corrected, Seller agrees, at Seller's expense, to have the structure(s) treated for such infestations. (c) At the time of notice as specified above in 0)), Seller shall also advise within five (5) days whether or not the resultant structural damage, if any, will be repaired, at Seller's expense, prior to settlement. If Seller elects not to repair such damage, Buyer shall have the option of accepting the property with the defects revealed by the inspection, without abatement of price, or being repaid all monies paid by the Buyer on account of the purchase price, together with Buyer's expenses, if any, as may be incurred or provided for under the terms of the Agreement of Sale, including but not limited to the following: (I) Cancellation fee for title insurance or abstract fee for searching title. (2) Cancellation fee or binder charge for fire insurance with extended coverage and/or flood insurance, if any. (3) Appraisal fees, credit reports charges, and/or survey costs. 2 In the latter event, there should be no further liability or obligation on either of the parties hereto and this Agreement of Sale shall become NULL AND VOID. Buyer shall notify Seller of his election, in writing, within five (5) days after Buyer receives Seller's notice of refusal to correct the condition(s). 6. RADON INSPECTION CONTINGENCY. Buyer, at Buyer's expense, has the option to obtain, from a certified inspector, a radon test of the: Property, and will deliver a copy of the test report to Seller within fifteen (15) days of the executi on of this Agreement. (a) If the test report reveals the presence of radon below 0.02 working levels (4 picocurieslliter), Buyer accepts the Property under this Radon Contingency. (b) If the test report reveals the presence of radon at or exceeding 0.02 working levels (4 picocuries/liter), Buyer will, within 7 days of receipt of the test results: (I) Accept the Property in writing, OR (2) Submit a written, corrective proposal 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 a projected completion date for corrective measures. Seller will pay one-half(1/2) of the cost of remediation and retests up to a maximum of $500.00, which will be completed by settlement. If the total cost of remediation and retests EXCEEDS the amount specified in paragraph "(2)" above, Buyer will, within five (5) days 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 under this Radon Contingency, OR (b) Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and this Agreement will be VOID. 7. SEPTI C. Buyer acknowledges that this property is serviced by an on site private septic system. Seller has provided Buyer with information concerning the septic system, including a septic inspection report dated August 22, 200 I from Eco- Tech. Buyer understands that he has the right to undertake further inspections; however, Buyer hereby releases, quit claims and forever discharges Seller and her agents from any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of th'e consequences thereof, whether now known or not, which may arise from defects in the individual on-lot sewage disposal system or deficiencies in the on-site water service system. Seller agrees, prior to settlement, to have the septic tank cleaned. This release will survive settlement. 3 8. WATER SERVICE INSPECTION CONTINGENCY. (a) Buyer has the option within fifteen (15) days of the execution of this Agreement and at Buyer's expense, to deliver to Seller a written inspection report by a qualified, professional water testing company of the quality and/or quantity of the water service. (b) Seller agrees to locate and provide access to the on-site (or individual) water system, if required by the inspection company. (c) If the report reveals that the water service does not meet the minimum standards of any applicable governmental authority and/or fails to satisfy the requirements for quality and/or quantity set by the mortgage lender, if any, then Buyer will, within seven (7) days of receipt of the test results: (1) Accept the Property in writing, OR (2) Submit a written, corrective proposal to Seller. The corrective proposal will include, but not be: limited to, provisions for payment, including retests; and a projected completion date for corrective measures. Seller will pay one-half (112) ofthe cost of correction and retests up to a maximum of $500.00, which will be completed by settlement. If the total cost of correction and retests EXCEEDS the amount specified in paragraph "(2)" above, Buyer will, within five (5) days notify Seller in writing of Buyer's choice to: (a) Pay the difference between Seller's contribution to correction and retests and the actual cost thereof, in which case Buyer accepts the Property under this Water Service Inspection Contingency. (b) Terminate this Agreement, in which case all deposit monies paid on account of the purchase price will be returned promptly to Buyer and this Agreement will be VOID. 9. DEED TENDER. Formal tender of deed and purchase money are waived. 10. POSSESSION. Possession shall be given by Seller to Buyer at settlement. This paragraph is subject to the provisions set forth in paragraph 21 below. 11. TITLE. Seller shall convey to Buyer, by special warranty deed, good and marketable title which can be certified by attorney for Buyer or insured at standard rates by a title company regularly insuring titles in Cumberland County, Pennsylvania. The premises shall be 4 conveyed free and clear of all encumbrances, easements or other obligations to title, except restrictions of record, none of which shall interfere with use as a residence. 12. TAXES AND ASSESSMENTS. City, county, and other real estate taxes on said property, as well as the water and sewer rental charges shall be pro-rated at the time of settlement. Seller assumes responsibility of full payment of all municipal or other governmental assessments, where notices have been served on the present or previous owners of the said property prior to the date of settlement. Seller warrants that she has no notice of other municipal or other governmental improvements or assessments. Real estate transfer taxes shall be divided equally between Seller and Buyer. 13. RISK OF LOSS. Seller shall bear risk ofloss from fire or other casualty until time of settlement. Buyer shall have option of rescinding this agree:ment and receiving back any monies paid on account, or accepting the property in its then condition with the proceeds of any insurance recovery obtainable by Seller. 14. HOME INSPECTION. (a) Seller hereby agrees to permit inspections by authorized appraisers, reputable certifiers, insurer's representatives, surveyors, municipal officials and/or Buyer as may be required by the lending institutions, if any, or insuring agencies. SeHer further agrees to permit a home inspection of the property. This home inspection shall be completed by Buyer within fifteen (15) days of the date of this Agreement. In the event that Buyer shall find problems which deal with the structural integrity of the home or any building system, such as plumbing, electrical, heating systems, etc, the cost for correction of which will exceed $1,500.00, he shall have the right to terminate this Agreement and all deposit monies shall be returned to him. (b) Buyer reserves the right to make a pre-settlement walk-through inspection of the Property. Buyer's right to make this inspection is not waived by any other provision of this Agreement. (c) Seller will have heating and all utilities (including fuel(s)) on for the inspections. 15. ZONING AND USE. Seller warrants that to the best of her knowledge, information, and belief, the present use of the property violates no existing federal, state, or local law, ordinance or regulations, nor deed restrictions, and that Seller has no notice of any proposed zoning changes. 16. PERSONALTY. This sale includes all plumbing, heating, air-conditioning and lighting fIxtures (including chandeliers) and system appurtenant thereto and forming a part thereof, and other permanent fixtures, as well as all ranges, laundry tubs, T.V. antennas, masts and rotor systems, together with wall-to-wall carpeting, screens, storm sash and/or doors, couplings for automatic washers and dryers, etc., kitchen cabinets, drapery rods, drapery rod hardware, curtain rods, curtain hardware, all trees, shrubbery, planting now in or on property, garage door openers, 5 if any, and any remaining heating and/or cooking fuels stored on premises after date of this agreement. Seller shall deliver good title to all the articles desclibed in this paragraph, and any other fixtures or items of personalty specifically scheduled and to be included in this sale, which are listed as follows: None 17. BINDING AGREEMENT. This agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators, and assigns. 18. NO BROKERS. Seller and Buyer warrant, represent and agree that they have not entered into an oral or written agreement whereby a brokerage commission is due any person, corporation, firm or other entity as a result of this sale. Selkr further warrants that she shall be responsible for any costs or fees if they have in fact listed her property with a real estate broker, and do indemnify Buyer from any costs as a result of such. Buye:r further warrants that they shall be responsible for any cost or fees if they have in fact dealt with a real estate broker in connection with this property, and do indemnify Seller from any costs as a result of such. 19. CONDEMN A nON. Seller hereby warrants that there are no outstanding notice of taking by condemnation. Seller agrees to assign at settlement all rights to condemnation money to Buyer by reason of any taking or notice thereof after execution of tbis agreement and will include such clause in a deed or other separate instrument and will execute any other documents necessary to carry out the foregoing. 20. BUYER'S REMEDY IN SETTLEMENT. Should Seller be in default by being unable to transfer good and marketable title as set forth above at settlement or within any extension of the settlement date, or fail to comply with the terms of this agreement, Buyer shall have all remedies available at law or equity. 21. LEASE BACK. Seller shall remain in possession of the real estate until June 30, 2002. No rental shall be due. Seller shall be responsible for all utilities during that period. If Seller fails to vacate after June 30, 2002, monthly rental shall be due: at the rate of $1 ,500.00 per month. This obligation shall survive settlement of this sales transaction. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. WITNESS: :1JwcJ (~"1t! BUYER: "\1\1I " . i___ t.. r\~~ (SEAL) M&I~. BOWSER ~o,j lit~~ SELLER ~~ctM{ )JJc., "J(SEAL) DITH ANN McCOMAS / 6 II II i: 11 I, II II I I I I '90:s~~;;~.. . ::."': ~.. . :! i: \ : ~ lJ ;; I': .~is 'tt'b,"""" ""'0 rJ /3tfi . W AnRANTY UEED d,y of r77t-/- in the year nineteen hundred and eighty-seven (1987) BETWEEN MORRISON McCOMAS and JUDll'H ANN McCONAS, of Cumberlalld MADE the County. pennsy 1 vania -...--------------------.-----------" Grantor:s - T 0 - JUDITH ANN McCOMAS, of Cumberland County, Pennsylvania ---------------------------------------- Grantee WITNESSETH, That in consideration of one----------------.----------------------- _______________________________ ($ 1.00 ) -------.---------------1)01lar5, in hand paid, the receipt whereof is herehy acknowledged, the ~id grantor S and convey to the said grantee . do hereby grant ALL that certain lot of ground situate in the Township of Upper Allen, County of Cumberland, and state of Pennsylvania, bounded and described as follows, to wit: II II I! 'I II I I I' I II II IT BEIBG the same premises which Martin L. Myers and Margaret B. 1\ Myers, his wife, by their deed dated September 26,' 1966, and I, recorded 1n the Office of the Recorder of De,eds ix( and for 1I:: Cumberland County, Pennsylvania, in Deed Book II, Volume 22, Page 11:1 247, granted and conveyed unto Morrison McComas and Judith Ann !I McComas, his wife, Grantors herein. II 'I I i' I II L I' I II Ii I! II BEGINNING at a point on the North side of Apache Trail at the corner of Lot No. 2 as shown in the hereinafter mentioned plan of lots; thence along the lines of said Lot No. 2 and Lot No.1, North (1) degree (17) minutes East, (301.28) feet to a point; thence along land now or formerly of Earl Hoffman, South (81) degrees (15) minutes East (168.02) feet to a point at the corner of Lot No. 4 as shown in said plan of lots; thenc~ along the line of Lot No.4, South (3) degrees (29) minutes West, (285.63) feet to a point on the North side of Apache Trail, aforesaid; thence along the North side of Apache Trail, North (86) degrees (31) minutes West, (155.75) feet to a point at the corner of Lot No.2 aforesaid, the place of BBGXNNIHG. BBING Lot No. 3 in the plan of lots of Martin L. Myers, known as "Waseka Estates, Section 1., as recorded in the Recorder's Office in and for Cumberland County in Plan Book 15, Page 48. SUBJECT, HOWEVER, to the following covenants and restrictions: 1. Each lot shall be known and described as a residential lot. Only a single family dwelling house, a private gnrage, recreational facilities and arbors may be erected on the lot. structures may be erected or used for busine~ss, trade or manufacturing purposes. 2. No lot shall be subdivided, nor shall there be more than one single family dwelling house erected thereon. 60lii X-32 PAGE -81 No .,.', '. 3. No trailer, basement, tent, shack, garage, barn or other outbuilding erected on the lot shall at pny time be used for residential purposes, ei~her temporarily' or permanently, nor shall any residence of a temporary character be permitted. 4. No picket or wire fence over four (4) feet in height, and no solid board fence,. shall be erected or maintained on any lot. 5. Two copies of house plans (1/4) inch to 1. foot scale), with specifications, shall be submitted to and approved by Martin L. Myers and/or Margaret 8. Myers, and one (1) copy signed by either of them shall be returned to the lot owner, elignifying approval, before any construction of any dwelling hOUSE~ shall be commenced. 6. No horses, cows, goats, sheep, swine, or fowl, shall .be kept or maintained on any lot, nor shall the raising or breeding of pets for commercial PU~POSQS be permitted. 7. No part of any building shall be erected or maintained upon any lot at a less distance from the boundary lines thereof than (25) feet. Building set-back distances shall conform to the plan of lots and to the Upper Allen Township Building Code Restr ictions. 8. All exterior walls of a dwelling and of Cl garage building shall be finished either with standard wood clapboard, brick, stone, wood, asbestos, aluminum, or pera-stone. No exterior walls or parts thereof of unfinished cement or cinder block, insul-brick, or any type of second-hand matel::ials shall be permitted. \ I 9. No dwelling house shall be erected on any lot unless the construction cost thereof, based on 1963 pri;::e levels, is. at least $25,000.00 and is comparable in exterior design to the other dwellings erected on other lots, and il; provided with heating facilities for year around human hab.itation. 10. Each lot Shall be maintained by the owner thereof, i.e., weeds, grass, briers, and noxious vines shall be mown periodically, atld erosion of 80il shall be prevented. 11. Shade trees planted by Martin L. Myers and Margaret B. Myers on each lot and bordering the streets hall not be removed; and if any of such trees die, or for some reason are destroyed, the lot owner, his heirs or assigns, shall replace such treesw THIS CONVEYANCE IS A TRANSFER BETWEEN HUSBAND AND WIFE. . ~ I I i II Ii !~ BOOK )(-32 rAGE 82 j; ., -L__._ I I' ,I I' 1 ,I , , ---"--..-- ./-" . <"'.. ~n'y ~m~Y;;;:~~::=I~:~... ) ss, On this, t~ 3/~ day of ~JUc1.t: 19b'(beforeme . ,he undc"igncd ollice<. I'e"ooolly '1'1~"od ~ fl. IJI!-CI>~~ known .to me (01 satisfactorily proven) to be: the person whose name ~ subscribed 10 the within instrument, and acknowledged that AJ.-t.- executed the same fllr the purpose lh~!.l;in. ~ Ii contained. ..,.", '.. ..' I IN WITNESS WHEHEOF, I have hereunto set my hand and .:<",~:~:;:~~/(}:)~t... ~(;{~~ ~~:~:~rj~.:';~'f.:Y \~.~},,;..~..-:>:~ ..J '. ~II ...... 'l~.r '.:. "",,"\ II '" I Ii I I I I AND the 5:lid gmnlllr swill generally hl'rehy l'unvcyctl. WAHHANT AND HJBEVEH lJl:HiNU lit<: pH/petty IN WITNE.I.)S WIIl:.HEOF, saill l{nmtorS i1n ve IIl~retllllll set theil' han{S ami sclll S , the day and year fitsl a),ove-written. ..U?~I"~~..:::::..... .!r..~~ "! {' %" .....~,~:I:/.j~,,'."'?'Z~';~I:~,::,:> . f'f~;' YM~~:\sbN"M6C6IiAS",,~/ ',':-00' , '('m) . 'J. cd,!j {t~" ~"}."(.')J'......d ('m) JUDITH ANN McCOr4~ (SEAl.) (SEAL) (SEAL) (SEAL) CERTIFICATE 01' H1i.SIDENCE II I I , \ I I I , I hereby certify, dun the pucise rt'5idence of the grantee 10 J{ Af'&Lh (Tr~i I dlu:,\"d~i(~\_)~\111 n;.i1055 ]/.., Ii t(1 J,ln ~f(6t','V. C, herein is as [ollows: , ,:,...,.;.- <- .... .: '~;..'..,(.L.I:-.L(..;-;~""t."~:.i)_~",,. '.' Attorne)' or Agtnt for Grantee Commonwealth of Pennsylvania I SS, County of ...X.ork.. On this, the 13 1987, before me a Notary Public day of August the undersigned officer, personally appeared MORRISON McCOMAS instrument, and acknowledged that contained. he ..<~:;':';"":'':'',..''_; whose nanll: i s Slt~~(~~t to .t.h,EVwithin :~,r:;~..::,!:-;lAS:-:',' \ execUted the samf _fi!~ ~~ pUU\~ff:~&Rin : :0':;: ~~:JO::.~ u..~ . ~. '':''''~~':~~~:'1': '::',1"':> j, offlci1.a.i:.,:{..:.~ '\'~ ..../:. . ","i'~'I' ).../~?~....... .t,.......,f J i i I I :ljAi"<;.'y'-"J '..." .....,.. ..............'...'. .~'i1~;~';;~~\i:i\\...l:....-.-.. 'II~A A. Hl~. !l:J;My Public ....\"l:lfl'.;..Ttirk.tOl/nl,:.ro;.. My Con.miS$ion Expires My tommiuion Expires Mirth 28. 1988 known to me (or satisfactorily proven) to be the person IN WITNESS WHEREOF, 1 have hereunto set m)' hand and ... ......!..'...,. ~ M}' COCOl".;llion Expirn TINA LYNN HEiGES, "olllT)' Public Harrisburg, owphm Cflunly, Pa. My tonlmlS5.lon bplres Hlay 1. 1990 BOOK X-32 PAGE 83 I -,"i ;S . .' ~. I , " Ii I' I' II I' " ,I , " State of SS, County of On this, the day of the undersigned officer, personally appeared 19 . before me: known to me (or satisfactorily proven) 10 be lhe person whose name subscribed 10 the within insuument, and acknowledged that contained. executed the same for the purpose therein IN WITNESS WHEREOF, I have hereunto set my hand and oW. " 11 II II My Commiuion EXJllires IState of I f SS, County of On this. the dayol 19 . before me the undersigned oHicer, personally appeared known to me (or satisfactorily proven) to be the person instrument, and acknowledged that contained. whose name subscribed to the within executed the same for the purpose therein IN WITNESS WHEREOF. I have hereunto set my hand and seal. My Commission Expires . ~u ~ Ii ! .. ~ ... ... : . c..i ~I 'ii .a~ :., 1 .'J! '" J c..i ~a .. . ['-- ~ c~ .. lli ' ., "'- cd ~ .......... p 0 J ~1 0 <::J 'n .2 . ~ ." .. \'-{ . . .. <'" ." :2 1! 11 . a' ~':: . ~ 0 ~ u ~ ~ u cl ~ 0 . 0 .. Cl "" '" ... 0 Commonwealth of Pennsylvania } ss, County 01 ..(!,u",:,...PdI~L".."". RECORDED in the Office For Recording of Deeds, etc., in and for said County, in Deed Book No. X - 3~ ,P'ge irI WITNESS my Hand and OfFicial Seal this ..:J, da:~ of LLL-LO~~"1 . 19 fJ" 7 .....:::p.;s:;:;~..~...\S"~..... R<<OI'der ef Duds .:'-.' ':.11 1 Property Address 2 3 Seller Ut:) / f) 4 A seller must disclose to a buyer all known marerial defects about property being sold that are not readily observable. This disclosure 5 statement is designed to assist Seller in complying with disclosure requirements ,rod to assist Buyer in evaluating the property being 6 considered. 7 This Statement discloses Seller's knowledge of the condition of the property as of the date signed by Seller and is not a substitute for 8 any inspections or warranties that Buyer may wish to obtain. This Statement is not a warranty of any kind by Seller or a warranty or 9 representation by any listing real estate broker, any selling real estate broker, or their licensees. Buyer is encouraged to address concems 10 about the conditions of the property that may not be included in this Statement. TIus Statement does not relieve Seller of the obligation 1 11 to disclose a material defect that may not be addressed on this form. 1 12 A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of the 1 13 residential real property or that involves an unreasonable risk to people on the land. , 14 1 15 1. SELLER'S EXPERTISE Seller does not possess expertise in contracting, engineering, ,~~tecture, or other areas related to the 1 16 construction and conditions of the property and its improvements, except as follows; II 0JtJ P 1 17 2. OCCUPANCY./ 1 18 (a) Do you, Seller, currently occupy this property? lE"'Yes D No 1 19 If "no," when did you last occupy the property? ' /'" 1 '0 (b) Have there been any ~t~ ~ing in the ho~sefr other structures during your ownership? B'Yes D No , 21 If "yes," describe; ~ ~ n I !> 0 \,1:)" <.J 9-11"S elf! D , 2 n 2 23 3. ROOF / / 2 24 (a) Date roof installed; / 7;1 ~ Documented? DYes lj;j'No....J] Unknown 2 25 (b) Has the roof been replaced or repaired during your o~rship? ~s D No 2 26 (c) If "yes," were the existing shingles removed? B""'"Yes D No D Unknown 2 27 (d) Has the roof ever leaked during your ownership? D Yes ~ , 28 (e) Do you know of any problems with the roof, gutters or downspouts? D Yes ~ 2 29 Explain any "yes" answers that you give in this section: 2 30 .31 4. 32 33 34 35 38 37 38 39 40 5. 41 42 43 44 45 46 47 .8 SELLER'S PROPERTY DISCLOSURE STATEMENT /HC- / e~/L- 10 L3v 128 /0/ I . '7 (bS.r BASEMENTS AND CRAWL SPACES (Comple!,S)lIlly if applicable) (a) Does the property have a sump pump? ~es D No D Unknown (b) Are you aware of any water leakage, accumulation, or dampness within the basement or crawl If "yes," describe in detail; -, s to control any water or dampness problem in th (c) Do you DYes 0 If "yes," describe the location, extent, date, and name of the person who did the repair or control effort; 49 50 51 52 53 54 55 56 57 58 TERMITESIWOOD-DESTROYING INSECTS, DRYROT, PESTS , (a) Are you aware of any termites/wood-destroying insects, dryrot, or pests affecting the property? D Yes ~ , (b) Are you aware of any damage to the property caused by termites/wood-destroying inse~, dryrot, or pests? D Yes ~, (c) Is your property currently under contract by a licensed pest control company? ~s D No .-/ (d) Are you aware of any termite/pest control reports or treatments for the property in the last five years? l3""Yes D No Ex "yes" anlwers that you give in his section. 'ncluding the na'pe of any servige/treatme'lt provider if ~pplica.&1e; ---c ' ,-1, " V - .C, ('<'f\ av-c....b. C'o,....,-\..y<la<~:::tn Fh'r'./ 1(!4 6. STRUCTURAL ITEMS . I I./"" (a) Are you aware of any past or present water leakage in the house or other structures? i3""fes D No : (b) Are you aware of any past or present movem~, shifting, deterioration, or other problems with walls, foundations, or other struc- tural components? DYes IB-No (c) Are y~are of any past or present problems with driveways, walkway~" patios, or retaining walls on the property? p..>res D No (d) Is your propert~tructed with an Exterior Insulating Finishing System (EIFS). such as drivit or synthetic stucco? DYes 'B"1'Jo D Unknown ,,- / ~. If "yes," de:ribe any known problems: C (~e' l~tp~<.~e.~,~lX'i 1i~ ' I .J. ". f2 .r "- '-J...X.t..l\~- E:..~ ; 1>; -, V Page 1 of 4 Seller's Initials; . ,.,.. PennSYlvania Association of ..... .........^,,:-A;...,1"'<f/I COPYRIGHT PENNSYLVANIA ASSOCIATlO 59 60 61 6' 63 64 65 7. ADDITIONS/REMOD~S ~ave JlDu made any additions, structural ~hanll~51 ~ ~r alterations to the property? 56 If "yes," describe: +'trid~.n <.S~ rrrrc'" \'^ J 1 ~ 67 68 69 70 71 72 73 7. 75 76 77 78 " 8' 81 82 B3 84 85 as 87 88 89 90 91 9' 93 94 9s 96 97 98 99 "0 101 192 103 10. 105 "6 107 108 109 110 111 112 113 114 115 "6 117 118 119 (e) Are there any defects i flooring, including stains? If ":res," explain: ,~cl...P cb,~ 'Ill"'-' I ~ 8~ ~~,,".e Explain any "yes" answers that you.give in this section. When explaining reports to control or repair, please describe the loca- tion and extent of the problem, and the date and person by whom the work was done, if known: OU~wE "~ c:f'Ka . 'J'j{lY'l"'fJ ~ "rc;j- DYes 0 No 8. WATER AND SEWAGE (a) What is the source of your drinking water? 0 Public Water o Community Water 0 None 0 Other (explain) (b) If your drinking water source is notJubliC;.-- When was your water last tested?' ,'1 '1'!> "'!Jilt was the result of the test? (", Kll .1 Is the pumping system in working order? E:r""Yes 0 No ~ If "no," explain: (c) Do you have a softener, filter, or other purification system? ~; [J No If "yes," is the system 0 Leased ~ned (d) What is the type of sewage system? 0 Public Sewer IB1lldividual On-lot Sewage Disposal System o Individual On-lot Sewage Disposal System in Proximity to Well 0 Community Sewage Disposal System o Ten-acre Permit Exemption 0 Holding Tank 0 None 0 None Available/Pennit Limitations in Effect If Individual On-lot, what type? 0 Ce~~~nfield 0 Unknown 0 Other (specify): Is there a septic tank on the Property? !:rYes 0 No J:l Unknown If "yes," what is the type of tank? 0 Metal/steel ~ment/concrete 0 Fiberglass 0 Unknown o Other (specify): Other type of sewage system (explain): ~;;te Water (Well on Property) , I;; rJ (e) When was the on-site sewage disposal system last serviced? (f) Is there a sewage pump? Q Yes .B1:lo If "yes," is it in working order? 0 Yes 0 No (g) Is eitherthe water or sewage system shared? 0 Yes If "yes," explain: (h) Are you awarejli any leaks, backups. or other problems relating to any of the plumbing, water, and sewage-related items? DYes l1l"1Jo If "yes." explain: 9. PLUMBING SYSTEM (a) Type of plumbing: ~pper 0 Galvanized 0 Lead o Other (explain): (b) Are you aware of any problems with any of your plumbing fixtures~.g., including but not limited to: kitchen, laundry, or bath- room fixtures; wet bars; hot water heater; etc.)? 0 Yes ~ If "yes," explain: 10. HEATING AND AIR CONDITIONING (a) Type of air conditioning: 0 Central Electric 0 Central Gas 0 Wal\" 0 None Number of window units included in sale ~ Location \:$\ttl:\E>v <J),;;-!-t'ft'LWY\. , (b) List any areas of the house that are not air conditioned: ./' (c) Type of heating: lld'1f1'ectric 0 Fuel Oil 0 N"!!!J:al Gas 0 Propane (On-site) Are there wood or coal burning s~s? 0 Yes En% If "yes," how many? _ Are they working? 0 Yes 0 No Are there any fITeplaces? ~es 0 No If "yes," how many?.JQ. Are they working? ~ res - 0 No Othertypes of heating systems (explain): ~ ~~ o Unknown ~ ~~'~MOY1A ) Are they working? ~- 0 No (d) Are there any chimneys? When were they last cleaned? (e) List any areas of the house that are not heated: /' (f) Type of water heating: ~lectrie 0 Gas 0 Solar (g) Are you aware of any underground fuel tanks on the property? If "yes," describe: If tanks are not owned, explain: (Ii) Are you aware of any problems with any item in this section? If "yes," explain: If "yes." how many? __ o Other: DYes ./ flrNo DYes ./ ~o ~n"n_'o T_"'n'o. /h;}J n~__ '" _S' AI 121 11. ELECTRICAL SYSTEM Are you aware of any problems or repairs needed in the electrical system? 122 If "'yes," explain: 123 12. OTHER EQillPMENT AND APPLIANCES INCLUDED IN SALE (Complete only if applicable) 12' Equi~me and app. liances ultimately included in the sale will be determined by negotiation and according to the terms of the 125 Agree nt of Sale. 126 (a) 0~tricGarageDoorOpener No,ofTranSmitters~- {J '\ . JI II / (b).6 Smoke Detectors How many? ~ Location Il\~ \.. df~N'& "T1l{J\ >,O.JI ( (c) D Security Alarm System D Owned-'o Leased D Lease Info ,ation cr (d) D Lawn Sprinkler No. D Automatic Timer (e) D Swimming Pool D Pool Heater D Spa/Hot Tub PooljSpa Equipment (lj2l): (I) ~efrigerator ~ange D Microwave Oven ~asher 0 Trash Compactor D Garbage Disposal (g) [! Washer D Dryer (h) D In~rcom 1'1\ (i) lfr'Ceiling fans No. ~ Location (j) D Other: , Are any items in this section in need of repair or replacement? .es D No D Unknown If "yes," explain: Lerf -mf'J ilJl)l'Jk-/ ,])o-U.lJorhe.""-- 13. LAND (SOILS, DRAINAGE, AND BOUNDARIES) (a) Are you aware of any fill or expansive soil on the property? D Yes ~ (b) Are you aware of any sliding, settling, earth movement, upheaval, subsidence, or earth stability problems that have occurred on . or~b~~ Dfu ~ , Note to Buyer: The property may be subject to mine subsidence damage. Maps of the counties and mines where mine subsidence, damage may occur and mine subsidence insurance are available through: Department of Environmental Protection, Mine Subsi- 1 dence Insurance Fund, 3913 Washington Road, McMurray, PA 15317 (800) 922-1678 (within Pennsylvania) or (724) 941-7100, (outside Pennsylvania). 1 (c) Are you aware of any existing or proposed mining, strip-mining, or any other excavations that might affect this property? 1 DYes ~ - 1 (d) To your knowledge, is this property, or part of it, located in a flood zone or wetlands area? DYes [j 1'0 - 1 (e) Do you know of any past or present drainage or flooding problems affecting the property? DYes D tlv - 1 (I) Do you know of any encroachments, bou'ndary line disputes, or easements? D Yes ~ 1 Note to Buyer: Most properties have easements nmning across themfoT' utility services and other reasons. In many cases, the 1 easements do not restrict the ordinary use of the property, and Seller may not be readily aware of them. Buyers may wish to 1 determine the existence of easements and restrictions by examining the property and ordering an Abstract of Title or searching 1 the records in the Office of the Recorder of Deeds for the county before entering into an Agreement of Sale. (g) Are you aware of any shared or common areas (e.g., driveways, bridges, docks, walls, etc.) or maintenance agreements? DYes ~ Explain any "yes" answers that you give in this section: 127 128 129 130 131 132 133 134 135 136 137 138 139 ,.0 141 "2 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 14. 161 162 163 154 165 166 167 168 169 170 171 172 173 17. 175 176 177 178 179 18. 161 DYes ~ .- '~ S'~ PCN'~/ HAZARDOUS SUBSTANCES (a) Are you aware of any underground tanks (other than fuel tanks) or hazardous substances present on the property (structure or soil) such as, but not limited to, asbestos, Polychlorinated biphenyls (PCBs), Ureaformaldehyde Foam Insulation (UFFI), etc.? DYes D No (b) To your knowledge, has the property been tested for any hazardous substances? DYes (c) Do you know of any other environmental concerns that might impact upon the property? Explain any "yes" answers that you give in this section: ~ l1v DYes EI" 1"t0- (d) Do you know of any tests for radon gas that have been performed in any buildings on the property? If "yes," list date, type, and results of all tests below: DATE TYPE OF TEST RESULTS (picocuries/liter or working levels) [t 1'<0 DYes NAME OF TEsTING SERVICE (e) Are you aware of any radon removal system on the property? DYes crrro- If "yes," list date installed and type of system, and whether it is in working order below: DATE INSTALLED TYPE OF SYSTEM PROVIDER WORKING ORDER DYes D No DYes 0 No DYes 0 No P~OP ~ I'Ifoj Seller's lnilials: (MJYJ, 183 (f) If property was constructed, or if construction began, before 1978, you must disclose any knowledge of lead-bas~ paint on the 1! 184 property. Are you aware of any lead-based paint or lead-based paint hazards on the property? DYes IEt"'l'fc; " 185 If "yes," explain how you know of it, where it is, and the condition of those lead-based paint surfaces: 11 186 II 187 (g) If property was constructed, or if construction began, before 1978, you mu.st disclose any reports or records of lead-based paint" 188 or lead-based paint hazards on the property. AIeYJ>"I'aware of any reports or records regardiI)g lead-based paint or lead-based l' 189 paint hazards on the property? D Yes ~o " 19D If "yes," list aU available reports and records: l' ~:; 15. CONDO~M~T1ti'~OMEOWNER ASSOCIATIONS (Complete only if applicable) :: 193 Type: D Condominium D Cooperative D Homeowner Association or Planned Community l' 194 Other 1! 195 Notice regarding Condominiums, Cooperatives, and Pwnned Communities: According to Section 3407 of the Uniform Condo- 1, 196 minium Act [68 Pa, C.S, *3407 (relating to resale of units) and 68 Pa. C.S. *4409 (relating to resale of cooperative interests)] and l' 197 Section 5407 of the Uniform Planned Community Act [68 Pa, C.S. *5407 (relating to resale of units)], a buyer of a resale unit in a 1! 198 condominium. cooperative. or planned community must receive a copy of the declaration (other than the plats and plans), the by- l' 199 laws, the rules or regulations, and a certificate afresale issued by the association in the condominium, cooperative, or planned com- 1: 2DD munity, The buyer will have the option of canceling the agreement with the return of all deposit monies until the certificate has been" 201 provided to the buyer and for five days thereafter or until conveyance, whichever occurs first. 21 202 16. MISCELLANEOUS " (a) Are you aware of any historic preservation restriction or ordinance or archeological designation associated with the property? 2' D Yes ~ 2i (b) Are you aware of any existing or threatened legal action affecting the property? D Yes ~ 2' (c) Do you know of any violations of federal, state. or local laws or regulations relating to this property? D Yes ~ 2! (d) Are you aware of any public improvement, condominium or homeowner association assessments against the property that remain 21 unpaid or of any violations of zoning, housing, building, safety or fIre ordinances that remain uncorrected? D Yes ~ 2' (e) Are you aware of any judgment, encumbrance, lien (for example, co-maker or equity loan), overdue payment on 91pport obli- 2' gation, or other debt against this property that cannot be satisfIed by the proceeds of this sale? D Yes ~o 2 (f) AIe you aware of any reason, i!!>Iuding a defect in title, that would prevent you from giving a warranty deed or conveying title to the 2 property? D Yes ~ 2 (g) Are you aware '!!Jlny material defects to the property. dwelling, or fIxtures which are not disclosed elsewhere on this fonn? 2 D Yes ~ A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of z the residential real property or that involves an unreasonable risk to people on the land. , Explain any "yes" answers that you give in this section: 2 ~9 2 220 The undersigned Seller represents that the information set forth in this disclosure statement is accurate. and complete to the best, 221 of Seller's knowledge. Seller hereby anthorizes the Listing Broker to provide this iuformation to prospective buyers of the prop- , 222 erty and to other real estate licensees. SELLER ALONE IS RESPONSIBLE FOR THE ACCURACY OF THE INFORMATION 2 223 CONTAINED IN THIS STATEMENT. Seller shall cause Buyer to be notified in writing of any information supplied on this form 2 224 which is rendered inaccnrat~,by a change in the condition of the property following completion of this form. , ~:: WITNESS 4...... ( ~. SELLER YIJJ~l:k^ /J!c!i>Ni/J/DATE 227 WITNESS - !J SELLER(_ . DATE 228 WITNESS SELLER DATE 203 204 ?O5 206 207 20a zag 210 211 212 213 214 215 216 217 216 229 230 231 232 233 234 235 236 237 23D 239 240 241 242 243 , ,6j.o/4/ 2 2 2 2 2 EXECUTOR, ADMINISTRATOR, TRUSTEE SIGNATURE BLOCK According to the provisions of the "Real Estate Seller Disclosure Act," the undersigned executor, administrator or trustee is not required to fill out a Seller's Property Disclosure Statement. The executor, administrator or trustee, must, however, disclose any known material defect(s) of the property. 2 , DATE 2 2 RECEIPT AND ACKNOWLEDGEMENT BY BUYER The undersigned Buyer acknowledges receipt of this Disclosure Statement. Buyer acknowledges that this Statement is not a warranty and that, unless stated otherwise in the sales contract, Buyer is purchasing this property in its present condition. It is Buyer's responsi.bility to satisfy himself or herself as to the condition of the property. Buyer may request that the property be inspected, at Buyer's e,xpense and by qualified professionals, to determine the con- dition of the structure or its components. z 2 2 2 2 2 2 2 WITNESS WITNESS WITNESS BUYER BUYER BUYER DATE DATE DATE VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.s.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: l! /7/0,')-' l -yfj~1s~- Mark Bowser CERTIFICATE OF SERVICE I, William 1. Adler, Esquire, Attorney for plaintiff, hereby certify on the (q _day of A-v ., l) l-? t ,2005, I served a copy of the within Amended Complaint upon the following person by first class mail, postage prepaid, addressed as follows: Barbara Sumple-Sullivan Esquire 549 Bridge St. Newcumberland'PA1705~ ~ William 1. Adler, Esquire () ~c~, -c~ tJ~ ~ c':_';) CJ1 p c:;:: t::,"l ;1'; \,....i r-> ;;:' /... -:",-\, .-.(. ""':" 9n ~~ ""'f'1Cn 'p'\, (,\() -;;\?~~\ <" \ , , ':~~- \ .~~S """ ~. -,.-,' - f"::~ ~ o Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (7 \ 7) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant NOTICE TO PLEAD To: Mr. Mark E. Bowser William L. Adler, Esquire Adler & Adler P.O. Box 11933 125 Locust Street Harrisburg, P A 17108 You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Dated: September 12, 2005 I / L Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 Supreme Court 1.0.32317 Attorney for Defendant Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 04-638 : CIVIL : JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant ANSWER TO AMENDED COMPLAINT WITH NEW MATTER I. Admitted. 2. Admitted in part. Denied in part. It is admitted that Defendant is an adult individual. It is denied that her address is 418 Stonehedge Lane, Mechanicsburg, P A. Defendant resides at 448 Stonehedge Lane. 3. Admitted. 4. Admitted. 5. Denied. After reasonable investigation, Defendant is without knowledge concerning the truth of the matter asserted and same is denied. By way of further answer, it is averred that said problem, if same in fact did occur, has happened more than ten (10) months after Plaintiff had sole and exclusive ownership and possession of the property. 6. Admitted. 7. Denied. After reasonable investigation, Defendant is without knowledge concerning the truth of the matter asserted and same is denied. By further answer, it is asserted that the septic functioned appropriately at all times when the property was owned by Defendant. 8. Denied. After reasonable investigation, Defendant is without knowledge concerning the truth of the matter asserted and same is denied. 9. Denied. After reasonable investigation, Defendant is without knowledge concerning the truth of the matter asserted and same is denied. 10. Denied. After reasonable investigation, Defendant is without knowledge concerning the truth of the matter asserted and same is denied. 11. Denied. After reasonable investigation, Defendant is without knowledge concerning the truth of the matter asserted and same is denied. 2 12. Denied. After reasonable investigation, Defendant is without knowledge concerning the truth of the matter asserted and same is denied. 13. Denied. At the time of the sale, Defendant had no knowledge that the septic system was defective and further, it is averred that the system was not defective. As stated above, the system worked appropriately at all times while Defendant occupied the home. Defendant did note a slight flow back but same never contained any sewage. Further, the status of the septic system was only originally drawn into issue when, incident to her prior marketing of the property, a prospective buyer desired to determine the feasibility of installing a pool. Incident to the testing concerning the feasibility of the pool, Township review of the existing system occurred. No repair or replacement work of the existing system was indicated to be required and no problem was identified to Defendant by the Township for repair or replacement. Because she was not knowledgeable in septic system operation and in order to fully confirm the status of the system, Defendant also retained an independent expert to complete a full septic review. The review was completed by Eco- Tech who found no problem with the system. A copy of the extensive expert's evaluation was specifically given to the Plaintiff. In order to underscore for Plaintiff the existence of prior septic concern and to ensure that Defendant was not making any incorrect representations about the system, a 3 separate and distinct paragraph addressing the septic was specifically drafted into the parties' sales agreement and incorporated into the terms of the parties' sales contract as paragraph 7. Defendant was further given opportunity for further inspection ifhe detennined the Eco-Tech report, which report Plaintiff acknowledged in the agreement as receiving, was to be insufficient. Plaintiff waived and released Defendant from any claims concerning the septic. 14. Admitted. 15. Admitted with the clarification that the job was performed by Jeanne Quigley and her father. 16. Denied in part. Admitted in part. It is admitted that the invoice said overfull. It is denied that the invoice said that there was water flow back in the drain during and after pumping. The invoice indicated "runback and liquid from AA while pumping and after pumping." This condition as noted was addressed in the Eco- Tech report and already noted to the Plaintiff. 17. Denied. After reasonable time, Defendant has no record of receipt of the invoice. However, said work was paid for by her check #2578 dated April 8, 2002. 4 18. Denied. It is denied that Jeanne Quigley and her father told Defendant that there was a problem with the septic on or about April 8, 2002. 19. Admitted. It is further averred that based on said letter, Plaintiff, individually and through counsel, made efforts to determine the status of the acceptability of the septic and at no time were advised that any replacement system needed to occur by the Township. It is further averred that DilIsburg Septic was only brought onto the property by another potential purchaser for review of the septic and ability of the septic to accommodate an in-ground pool as set for the in paragraph 13 herein, which paragraph is incorporated herein by reference. 20. Admitted in part. Denied in part. It is admitted that Defendant applied for a permit. The application could only be completed by her as owner of the property. It is averred that said application was made on behalf of the potential buyers interested in the pool construction. It is denied the application stated it was for replacement of the system. However, it was Defendant's understanding the work to be completed was relocation and enlargement of the system to accommodate the pool. 21. Admitted in part. Denied in part. It is admitted that Defendant initially paid for the application. However, it is denied that Defendant had any pecuniary 5 investment in the application since the potential purchasers reimbursed Defendant for any and all costs she expended. 22. Admitted with the clarification that Defendant did not complete the entire application form and only completed information pertinent to her and the site information. 23. Denied. After reasonable investigation, Defendant is without knowledge as to an application dated July 2, 200 I. Proof thereof is requested. 24. Admitted with the clarification that soil testing was completed relative to the investigation of the potential buyers desire to the in-ground pool on the property. 25. Admitted with the clarification that these steps involved the septic changes necessary to complete the pool construction. 26. Denied. After reasonable investigation, Defendant is without knowledge to form a belief as to the truth of the averment and same is denied. 27. Denied. After reasonable investigation, Defendant is without knowledge as to the truth of the averment and said averment is denied. Proof of same is required. It is 6 further averred that Plaintiff is solely responsible for the choice of the type of system to be installed and was knowledgeable of the maintenance related thereto. 28. Denied. After reasonable investigation, Defendant is without knowledge as to the truth of the avennent and said averment is denied. By way of further answer, it is asserted that Plaintiff was aware that the property had on site septic and said costs represent maintenance costs associated therewith the system has chosen to install. Less expensive systems, which require less inspection and maintenance, are available to Plaintiff. WHEREFORE, Defendant requests judgment in her favor. COUNT I - FRAUD 29. Defendant's response to paragraphs I through 28 are incorporated herein by reference. 30. Denied. To the contrary, Defendant had provided to Plaintiff a full description of past occurrences, as well as an expert evaluation of the status of the system. 31. Denied. While Defendant was aware that certain questions existed concerning the septic as a result of the discussions related to the in-ground pool, Defendant knew 7 of no problems. By way of further answer, it is asserted that Defendant never experienced any problem with the septic prior to the sale, that Defendant made all reasonable efforts to determine the status of the system, including contacting the Township and an independent testing company, that Defendant fully disclosed the existence of the past history of the system to the Plaintiff and specifically incorporated an express provision in regard to this condition in the sales contract. Defendant allowed Plaintiff full access for review and inspection and made no warranty of the system. It is further asserted that Defendant received a full release from Plaintiff from any liability concerning the system. 32. Denied. It is denied that Defendant intentionally misrepresented the condition of the septic system. By way of further answer, it is asserted that Defendant was given full disclosure on the status of the system, including a professional evaluation of the system. 33. Denied. After reasonable investigation, Defendant is without knowledge as to the truth of the averment and proof thereof is requested. It is denied that any misrepresentation of the system was in fact made. 34. Denied. It is denied that any statement made by the Defendant was false or known by her to be false. It is further denied that Defendant acted recklessly. Defendant 8 conducted a full investigation of the issue, disclosed these findings to the Plaintiff and Plaintiff, making and knowing decision, and chose to purchase the property, accept the system, and release Defendant from any liability thereof. 35. Denied. It is denied that any misrepresentations occurred. Paragraphs 30 through 34 are incorporated herein by reference. WHEREFORE, Defendant respectfully requests judgment in her favor and against the Plaintiff. COUNT II - BREACH OF SELLERS DISCLOSURE ACT 36. Paragraphs I through 35 of Defendant's Answer are incorporated herein by reference. 37. Paragraph 37 is deemed a conclusion of law to which no response is required. 38. Paragraph 38 is deemed a conclusion oflaw to which no response is required. By way of further answer, it is asserted that Defendant reviewed the property disclosure form with Plaintiff. It is further averred that at the closing, Plaintiff s counsel, Craig Adler, indicated that he did not have a copy of the disclosure statement in his file. Counsel for the Defendant was proceeding to provide the 9 disclosure from her file when Plaintiff acknowledged that he had seen and had possession of the Disclosure form. As a result, attorney for the Plaintiff indicated that this was satisfactory and did not request another copy. It is further noted that the relevant issue of the litigation was fully addressed and disclosed in the specially drafted paragraph 7 of the Sales Agreement which both parties executed and both counsel reviewed. 39. Denied. It is denied that Defendant knew of any failures or defects in the system. It is further averred that Defendant accurately provided to Plaintiff a true and complete description of the system by provisions of the Eco-Tech report and references in the disclosure. 40. Denied. Paragraph 40 is a conclusion of law to which no response is required. 41. Admitted. Admitted with the clarification that Plaintiff also acknowledged at the closing that he received and possessed a copy of the disclosure during negotiations. 42. Denied. It is denied that Plaintiff did not receive the seller's disclosure statement and it is averred that he admitted same at closing in the presence of both counseL 10 43. Admitted in part. Denied in part. It is admitted that the seller's disclosure statement provides that the sewer was functioning properly. It is denied that the sewer was not functioning properly. WHEREFORE, Defendant seeks judgment in her favor and against the Plaintiff. COUNT III - VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 44. Paragraphs I through 43 of Defendant's Answer are incorporated herein by reference. 45. Denied. Paragraph 45 is denied as a conclusion oflaw to which no responsive pleading is due. 46. Denied. It is denied that Defendant failed to disclose any material facts concerning the septic. By way of further answer, paragraphs 13 through 25 of this Answer are incorporated herein by reference. 47. Paragraph 47 is a conclusion oflaw to which no responsive pleading is due. WHEREFORE, Defendant requests judgment in her favor and against the Plaintiff. 11 NEW MATTER 48. Defendant incorporates paragraphs I through 48 of her Answer. 49. Paragraph 7 of the parties' Sales Agreement provides: 7. SEPTIC. Buyer acknowledges that this property is serviced by an on site private septic system. Seller has provided Buyer with information concerning the septic system, including a septic inspection report dated August 22, 200 I from Eco- Tech. Buyer understands that he has the right to undertake further inspections; however, Buyer hereby releases, quit claims and forever discharges Seller and her agents from any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of the consequences thereof, whether now known or not, which may arise from defects in the individual on-lot sewage disposal system or deficiencies in the on-site water service system. Seller agrees, prior to settlement, to have the septic tank cleaned. This release will survive settlement. 50. Plaintiff has fully released Defendant from any claims related to the septic system. 51. Plaintiff had a full opportunity to inspect and investigate the septic system. 52. Plaintifffailed to mitigate his damages by his choice of septic systems for construction. 53. Defendant did not experience problems with the septic until February, 2003, approximately ten (10) months after purchase. 12 54. Plaintiffs usage burden on the system greatly exceeded that usage by Defendant or her family. 55. After Plaintiff purchased the property, Plaintiff made landscape changes to the back yard which impacted the septic system. 56. After Plaintiff purchased the property, Plaintiff made construction changes to the home which impacted the septic system. WHEREFORE, Defendant requests judgment in her favor and against the Plaintiff. Dated: September 12, 2005 L / / Baro umple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 Supreme Court J.D. 32317 Attorney for Defendant 13 Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant VERIFICATION I, Judith Ann McComas, hereby certify that the facts set forth in the foregoing Defendant's Answers to Plaintiff's Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C. S.A. Section 4904 relating to unsworn falsification to authorities. Dated:hGo. :JS , 2005 / Barbara Sump Ie-Sullivan, Esquire Supreme Court #323 17 549 Bridge Street New Cumberland. PA 17070 (717) 774-1445 MARK E. BOWSER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 04-638 CIVIL JURY TRIAL DEMANDED JUDITH ANN McCOMAS, Defendant CERTIFICATE OF SERVICE 1, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of Defendant's Answer to Amended Complaint with New Matter, in the above- captioned matter upon the following individual by first class mail, postage prepaid, addressed as follows: William L. Adler, Esquire Adler & Adler P.O. Box Il933 125 Locust Street Harrisburg, PA 17108 DATED: September 12, 2005 { Barbara Sumple-Sullivan, Esquire Supreme Court J.D. No. 32317 549 Bridge Street New Cumberland, P A 17070 Attorney for Defendant (717) 774-1445 0 ",.' 0 c.;)" ( ",J -n ~'_f\ _--l ~1~ 1\.... -'r-' (,..o,; .. CO ., C) v. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 04-638 : JURY TRIAL DEMANDED Mark E. Bowser Plaintiff Judith Ann McComas Defendant REPLY TO NEW MATTER 48. Denied. 49. Admitted. 50. Denied. This is a conclusion oflaw to which no responsive pleading is required. By way of further answer thereto, Defendant engaged in fraud in the inducement by failing to reveal the problems with the septic system of which she was aware. 51. Admitted. By way of further answer thereto, had Defendant ever indicated the problems of which she was aware conceming the septic system rather than failing to disclose any of the problems of which she was aware, Plaintiff would have had an independent investigation performed. 52. Denied. Plaintiff explored all options for a septic system, and the one chosen was the workable and most economical option given the circumstances. 53. Admitted in part and denied in part. It is admitted that the problems were first experienced by Plaintiff in February of2003, however, Defendant occupied the home on a post settlement lease for two months after settlement. 54. Denied. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 55. Denied. Any landscape changes made had no impact on the septic system. 56. Denied. Construction changes had no impact on the septic system. WHEREFORE, plaintiff respectfully requests damages in an amount exceeding $30,000.00 including costs of suit and attomeys' fees. William L. A er, Esquire Attomey for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 October 3, 2005 VERIFICATION I VERIFYTHA TTHE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: I'D / 3 ( uj- , j/l{~1S~~ / Mark Bowser CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attorney for Plaintiff, hereby certify on the > _day of 0 JiJ b~ ,2005, I served a copy of the within Reply to New Matter upon the following person by first class mail, postage prepaid, addressed as follows: Barbara Sumple-Sullivan Esquire 549 Bridge St. New Cumberland, PA 17055 j~ aM 1M. ~ William L. Adler, Esquire Cl ,'- r-' c::::l c::O en o ~ I .x: '"''':':':"\ -<.. --n o -n -' --,: -n f~"\t;': :\::'.\::j '::", )..., _:1 ~".~' . -,-' "J, ~ '.'~)-r) :")\\1 ::::'t -17 "-1) ~ L:? "" o