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HomeMy WebLinkAbout08-3740REAGER & ADLER, P.C. By: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: LFenicle ReagerAdlerPC.com By: John H. Pietrzak, Esquire Attorney I.D. No. 79538 Email: Joietrzak@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiffs, David and Carol Ivey DAVID AND CAROL IVEY, COURT OF COMMON PLEAS OF Husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. D$ - 37 0 Uw i Term CHARTER HOMES AT THE PRESERVE, INC., Defendant : Jury Trial Demanded NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford St., Carlisle, PA 17013 Phone 717-249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de a notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Code por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reciamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Code sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE DUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS CUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS DUE CUALIFICAN. Cumberland County Bar Association 32 S. Bedford St., Carlisle, PA 17013 Phone 717-249-3166 REAGER & ADLER, P.C. By: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: LFeniclen,ReagerAdlerPC.com By: John H. Pietrzak, Esquire Attorney I.D. No. 79538 Email: JpietrzakkReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiffs, David and Carol Ivey DAVID AND CAROL IVEY, : COURT OF COMMON PLEAS OF Husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 0F- 3 7 yo C t,- -! 7-i,•, CHARTER HOMES AT THE PRESERVE, INC., Defendant Jury Trial Demanded COMPLAINT IN EQUITY 1. The Plaintiffs are David and Carol Ivey, husband and wife, with an address of 6120 Log Cabin Trail, Enola, Pennsylvania 17025. 2. The Defendant is Charter Homes at the Preserve, Inc., a Pennsylvania Corporation, with an address of 114 Foxshire Drive, Lancaster, Pennsylvania, 17601. 3. In or around June 2006, Plaintiffs met with Defendant's authorized sales representative, Meredith Distefano, to discuss the purchase of a lot on which to build their dream home. Plaintiffs ultimately purchased Lot # 88 in the Preserve, a planned residential community being developed by Defendant. 4. Prior to purchase of Lot # 88, Plaintiffs discussed with Distefano the requirements they had for the lot on which Defendant would build their dream home. Specifically, Plaintiffs informed Defendant that the lot must have adequate side yards after construction of the home. 5. Plaintiffs also informed Defendant that they wanted Defendant to clearly identify the property boundaries of the lot so that Plaintiffs knew where the property boundaries were located. To this end Plaintiffs requested that Distefano show them where the property pins were located for lot # 88, the lot that Plaintiffs ultimately purchased. 6. Distefano stated that the pins were not yet placed on Lot # 88, but did show Plaintiffs the Defendant's "Site Plan" that showed side yards for the house to be build on Lot # 88. The Site Plan consisted of a clear overlay of the footprint of the house that was placed on top of the plans showing Lot # 88, which demonstrated how the house would be placed to achieve the side yards. Distefano assured Plaintiffs that their home would be built on Lot # 88 with adequate side yards. 7. On or around June 6, 2006, Plaintiffs paid Defendant a $10,000.00 deposit on Lot # 88 in The Preserve. 8. Plaintiffs informed Defendant that the need for adequate side yards was very important to them. Defendant's representations that there would be adequate side yards were a material factor in the Plaintiffs' decision to purchase Lot # 88 and to have Defendant construct their dream home for them on this lot. 9. On or around June 12, 2006, Plaintiffs again met with Distefano to go over the Sales Agreement, prior to signing. Plaintiffs again asked to be shown where the property pins were located on Lot # 88. Distefano reiterated to Plaintiffs that the pins would soon be placed on Lot # 88. 10. Plaintiffs executed a New Home Purchase Agreement (hereinafter the "Sales Agreement") with the Defendant on or about June 14, 2006, whereby Plaintiffs agreed to purchase Lot # 88 in the Preserve, in Enola, Hampden Township, Cumberland County, Pennsylvania, and to have Defendant construct a home upon this lot, for the price of $691,970.00, including the lot premium and initial design selections. The Sales Agreement is 2 dated June 23, 2006. A true and correct copy of the aforementioned Sales Agreement is attached hereto, and made a part hereof, as Exhibit "A". 11. Under the terms of the Sales Agreement, Defendant retained sole ownership and control over Lot # 88 and the home to be built on this lot, until final settlement with Plaintiffs. 12. On or around June 22, 2006, Plaintiffs met with Distefano to go over some design selections for their new home. Plaintiffs again asked Defendant to provide the dimensions of Lot # 88 and to identify the rear property line. This request was written on an addendum to the Sales Contract that was titled Selection Sheet as of Change Order 4. Defendant again failed to provide the dimensions of the lot. A true and correct copy of Selection Sheet as of Change Order No. 4 is attached hereto and incorporated herein as Exhibit "B". 13. On June 27, 2006, Plaintiffs executed an addendum to the Sales Agreement, titled the Selection Sheet as of Change Order 6, which amended their design selections and added $113,910.00 to the price of the house/lot package, for a total contract price of $726,900.00. Plaintiffs again asked Defendant to identify the property boundaries for Lot # 88. Distefano stated that the stakes had not been placed on Lot # 88 yet. A true and correct copy of Selection Sheet as of Change Order No. 6 is attached hereto as Exhibit "C". 14. Defendant placed stakes to mark the outline of the Plaintiffs' house in preparation for digging and placing the foundation. Defendant incorrectly staked the house to be set back 25 feet from the front of the property instead of 40 feet from the front property line as previously agreed by the parties. After initially refusing, Defendant re-staked the house 40 feet from the front property line and broke ground several days later. Defendants did not give Plaintiffs an opportunity to review this staking of the house prior to the digging of the foundation. At this time, Brian Temple was Defendant's "Neighborhood Builder" and Matt Tenny was Defendant's "Team Builder." 3 15. Defendant placed a white wood stake marking the right front corner of Lot # 88. Defendant placed the stake next to a painted white mark on the curb that was also aligned with a split in the curbing. Defendant did not place any stake marking the right rear corner boundary of the lot, despite repeated requests from Plaintiffs that they do so. 16. Defendant installed the sidewalk at the front of Lot # 88. The sidewalk ended on the right side of the lot by lining up with the stake that Defendant had previously placed by the white mark on the curb, signifying the right front corner of Lot # 88's boundary. 17. Upon information and belief, throughout the neighborhood, Defendant consistently marked the right front lot corner boundary with a stake placed in the ground next to a white mark painted on the curb, marking the right corner boundary. Defendant's placement of the stake at the right front corner of Lot # 88 was consistent with this practice. 18. Plaintiffs reiterated to Defendant's builders Brian Temple and Matt Tenny that it was important that there be an adequate side yard beyond the driveway that was to be placed on the right side of the home. In a fax email to Brian Temple dated October 16, 2006, Plaintiffs informed Defendant that they wanted to discuss how the driveway was to be placed. A true and correct copy of Plaintiffs' October 16, 2006 fax is attached here to as Exhibit "D". 19. Defendant informed the Plaintiffs in a letter dated November 1, 2006, that Defendant was making changes to its construction personnel. A true and correct copy of Defendant's November 1, 2006 letter is attached hereto as Exhibit "E". 20. On November 3, 2006, Plaintiffs met with Defendant's new Team Builder, Trey McDonald to discuss placement of the driveway. Plaintiffs again reiterated the importance of a side yard between the driveway and the boundary with the neighboring lot, Lot # 87, and again requested that Defendant place markers showing the boundaries of Lot # 88. 21. From the time the home was being constructed through April 2007, Defendant's builders, Greg Hoedecker, Dwight (last name unknown), the Neighborhood Builder, Trey 4 McDonald, the Team Builder, Robert Malpass from Malco, and Clay (last name unknown), Malpass' assistant, repeatedly represented that the right side property boundary extended to the rear of the property as a line, from the stake placed at the right front corner of Lot # 88, along a line parallel with the driveway to the back corner of the lot. 22. Defendant's builders were identified by Defendant as Defendant's employees and/or agents. The builders had business cards identifying them as Defendant's employees and/or agents. 23. In preparation for the settlement that was to occur on December 29, 2006, Plaintiffs obtained a copy of Defendant's Build Plan from Hampden Township on or around December 26, 2006. Plaintiffs discovered that there was a sewer easement shown on the Build Plan that extended along the left side of Lot # 88. 24. Defendant had never informed Plaintiffs that any easement existed on Lot # 88. 25. Plaintiffs contacted Defendant's new Neighborhood Sales Manager, Lori King, who had replaced Meredith Distefano, and asked why the Defendant had not informed Plaintiffs of the easement and asked what were the implications of the easement. King refused to speak to Plaintiffs about the easement, stating that Distefano should have handled it and that she (King) could not answer any questions because needed she to prepare for a Realtors' luncheon at the model home in the Preserve. 26. Based upon the Defendant's authorized representations as to the boundary line, the Plaintiffs proceeded to settlement. 27. Plaintiffs proceeded with the settlement on their home on December 29, 2006, although construction was not completed. During the brief orientation, Plaintiffs again asked Trey McDonald, Defendant's Team Builder about the location of the right rear boundary of the property, because Defendant never placed a stake to show the location of the right rear corner due to a large mound of dirt in that area. Defendant again informed Plaintiffs that their right side 5 property line extended from the stake placed at the right front corner, along a line parallel with their driveway to the back corner of the lot. 28. The property line as represented by Defendant's authorized representative, both before and after settlement placed the right front corner at the stake at the white mark on the curb and followed a line parallel along the right side of the lot approximately 4'6" from the right edge of the driveway, to the corresponding right rear corner of the lot. 29. Plaintiffs spoke to Dwight, Defendant's Neighborhood Builder both prior to and after the December 29, 2006 settlement date about the placement of trees along Lot # 88's right side property line. 30. Dwight further stated that the slope between lots 87 and 88 would serve as a drainage swale and that trees could be planted along this slope, but no landscaping beds could be placed there. 31. During January 2007, Defendant planted two large trees, which were part of the landscaping package provided by Defendant pursuant to the sales agreement and change order No. 6, within the area that Defendant had represented as the right-side boundary line of Lot # 88. 32. In April 2007, Defendant's landscaper returned to perform final grading and plant grass along the right boundary of Lot # 88. Again, Defendant performed grading and planted grass in an area consistent with that previously represented by Defendant to be the right side boundary, from the front stake marker along a line parallel to the driveway to the back right corner of the lot. 33. In Spring 2007, the Plaintiffs consulted the lot grading requirements of Defendant's Build Plan, which had been filed with and approved by Hampden Township, and confirmed that the right boundary line of Lot # 88 runs parallel to the driveway, and shows a side yard between the driveway and the boundary line. 6 34. Based upon the representations made by Defendant regarding the location of the right side property line, and after confirming that the Defendant's Build Plan shows that Lot # 88's property line runs parallel with the driveway installed by Defendant, Plaintiffs contracted with a paving company to have the driveway extended by approximately 26 feet along the side of the home. 35. Based upon the representations made by Defendant regarding the location of the right side property line, and after confirming that the Defendant's Build Plan shows that Lot # 88's property line runs parallel with the driveway installed by Defendant, Plaintiffs had a flowerbed and patio installed in the back yard. 36. The Plaintiffs asked Defendant at various times prior to, during and after construction of the house, up to and including at the time of conveyance of the property from Defendant to Plaintiffs, to identify the boundaries of Lot # 88. Defendant consistently told Plaintiffs that the property line between Lots 87 and 88 ran the from the front stake marker placed by the white mark and cut in the curb, along a line parallel to the driveway to the back right corner of the lot. 37. Defendant started preparations to build a house on Lot # 87, which is adjacent to Plaintiffs' Lot # 88, in March and April 2008. 38. Lot # 87 is narrower than Lot # 88 and Defendant had represented to Plaintiffs that only a smaller "spec home" without the large conservatory room could be built on Lot # 87. 39. Defendant's Neighborhood Sales Manager, Lori King, told Plaintiffs that any home to be built on Lot # 87 could not have a conservatory because Lot # 87 was too narrow. 40. The site plan depicted in Defendant's model home depicted Lot # 87 as having a "spec house". 41. On April 3, 2008, Mike Barron, Defendant's Team Builder, informed Plaintiffs that the Defendant had incorrectly marked the right side property line of Lot # 88 during the 7 construction of Plaintiffs' home and that the actual property line starts at the right front corner of the lot approximately four feet to the left of the previously marked stake and cuts negatively into Plaintiffs' lot to a point approximately 14 feet to the left of where Defendant had previously represented the right rear lot boundary to be located. 42. Barron informed the Plaintiffs that the trees that Defendant planted along the right side boundary of Lot # 88 as part of Plaintiffs' landscaping package, as well as other landscaping, Plaintiffs' patio and a portion of the driveway extension, were not actually on Plaintiffs' property but were across the property line onto Lot # 87. 43. Defendant apparently was able to locate pins establishing this new property line on April 3, 2008 even though Defendant had been unable or unwilling to find these pins at any time from June 2006 through the completion of Plaintiffs' home in the spring of 2007, despite many requests by the Plaintiffs that Defendant do so. 44. Defendant first showed Plaintiff the right front property pin on April 3, 2008, which was located approximately 14 inches below the surface. 45. The new property line no longer runs parallel with Plaintiffs' driveway but instead cuts across the lot at an angle, so that the property line crosses exactly at the right apex of the original driveway and cuts diagonally across Plaintiffs' driveway extension. 46. Due to the new property line, Plaintiffs now have no side yard whatsoever between their driveway and Lot # 87. 47. The trees that Defendant planted and represented as being on the Plaintiffs' lot were now located completely across the new property line and onto the neighboring lot, Lot # 87. 48. Defendant has refused to honor the boundaries that it established by its many representations and actions during construction of Plaintiffs' home and that Defendant agreed marked the boundaries of Lot # 88 before, during and after construction of the Plaintiffs' home and at the conveyance of the property to the Plaintiffs. 49. Defendant demanded that Plaintiff remove the trees that Defendant planted in the area previously agreed by the parties to be part of Lot # 88. 50. Defendant has further demanded that Plaintiffs remove the flowerbed and patio from their back yard, and remove a corner of the driveway extension, which are now across the new property line established by Defendant. 51. Plaintiffs have moved these items, while reserving their rights to take legal action. Plaintiffs' action in moving the trees, landscaping and patio in no way constitutes agreement. with Defendant regarding the true position of the property line as intended by the parties during and after construction of the Plaintiffs' home. 52. Plaintiffs commissioned a survey of the property boundaries by CEDG Engineers (hereinafter "CEDG") on or about April 8, 2008, which confirmed that the property line as now asserted by Defendant is that which is set forth in the documents referenced on the deed for Lot # 88. 53. CEDG's survey established that the property line now asserted by the Defendant results in property boundaries with a frontage of 135 feet and a rear width of 110.8 feet instead of the boundaries previously represented by the Defendant, and as intended by the parties, with a frontage of 139.5 feet on the street and a rear width of 124.8 feet. 54. The property line shown on the documents referenced in the deed is not that which the parties intended to be the property line during and after construction of the Plaintiffs' home and at the conveyance of the property from Defendant to Plaintiff. 55. CEDG's survey further showed that Defendant moved the footprint of Plaintiffs' home 22.5 feet from the left to the right side of Lot # 88 when Defendant restaked the footprint after Defendant initially staked it too close to the front of the lot in September 2006. 56. Upon information and belief, it is contended that Defendants shifted the footprint of the house to the right side of the lot to account for the sewer easement running along the left 9 side of the lot, which Defendants failed to disclose to Plaintiffs and which Plaintiffs discovered on their own just prior to the December 29, 2006 closing. 57. CEDG's survey establishes that Defendant shifted the footprint of the house 7.5 feet further to the right than was needed to meet the 15 foot set back requirement from the sewer easement. 58. Plaintiffs have complied with all conditions precedent to the bringing of this action. COUNTI REFORMATION OF DEED 59. Plaintiffs incorporate the averments contained in paragraphs 1 through 58 as if fully set forth herein. 60. The deed does not set forth the boundaries that Defendant as the grantor represented and that the parties intended or agreed upon when Defendant constructed Plaintiffs' house and conveyed the property to Plaintiffs on December 29, 2006. 61. At all times prior to, during and after Defendant's conveyance of Lot # 88 to Plaintiffs, the Defendant represented, and the parties agreed and intended that the property line for the right side boundary of Lot # 88 was to be marked at the front right corner by the stake placed in the ground by the white mark and cut in the curb and continue to the right rear corner of the property along a line parallel to the driveway installed by Defendant. 62. This intention continued concurrently up to and including at the time of conveyance, as evidenced by Defendant's repeated actions and representations regarding the position of the right side property line both prior to and during construction of the Plaintiffs' home and also prior to, during and after the conveyance of the property on December 29, 2006. 63. At all times, until April 3, 2008, Defendant acted in conformance with the parties' intention that the right side property line of Lot # 88 was to be marked by the stake placed in the 10 ground by the white mark and cut in the curb and continuing to the right rear corner of the property along a line parallel to the driveway installed by Defendant. 64. The parties' intent at the time the property was conveyed on December 29, 2006 was to convey the property in conformance with the right side property line as established by Defendant's actions and representations up to the time of conveyance. 65. The property description in the deed conveyed by Defendant, including the position of the right side property line, was conveyed as a result of mutual mistake by both the Plaintiff and Defendant. 66. Neither Plaintiff nor Defendant realized at the time of conveyance that the right side property line as described in the deed was different from the right side property line established by the actions, representations and intent of both parties up to and during the time of conveyance on December 29, 2006. 67. This mutual mistake is further evidenced by the fact that both Plaintiff and Defendant continued to believe and act in accordance with their mutual intent that the right side property line was marked by the stake placed in the ground by the white mark and cut in the curb and continued to the right rear corner of the property along a line parallel to the driveway installed by Defendant following conveyance of the property. 68. Defendant showed its intent to continue to honor the previously established property line after the December 29, 2006 conveyance by placing landscaping in accordance with this established property line in January and April 2007. 69. Plaintiffs showed their intent to continue to honor the previously established property line by extending their driveway and installing a patio and additional landscaping in accordance with the established right side property line in the spring of 2007. Defendant acquiesced to these actions by the Plaintiffs. 11 70. As further evidence of the parties' actual intent and the mutual mistake contained in the deed, Plaintiffs made it clear to Defendant prior to and after the execution of the Sales Agreement that they required an adequate side yard to the right of the driveway to be placed on Lot # 88 and Defendant repeatedly agreed that Defendant would provide Plaintiffs with an adequate side yard to the right of the driveway. 71. Conformance with the property line as described in the documents referenced in the deed would cause the property line to cross exactly at the right apex of the original driveway installed by the Defendant and cut diagonally across the driveway extension installed by Plaintiffs, effectively eliminating the entire side yard to the right of the Plaintiffs house. This was never intended by the parties. 72. Conformance with the property line as described in the documents referenced in the deed would cause the trees planted by the Defendant to now be entirely on the neighboring Lot # 87, which was never intended by the parties. 73. Defendant apparently discovered the mutual mistake of the parties on April 3, 2008 when it began preparations to construct a home on Lot # 87. 74. Instead of conforming the deed to the actual intent of the parties at the time of conveyance on December 29, 2006, Defendant instead seeks to force Plaintiffs to accept a new property line that was not intended by either of the parties. 75. Defendant only desires to alter the established property line at this time to conform with the mistaken property line described in the deed because it has contracted to build a larger house on Lot # 87 than it originally intended or represented would be possible and now needs the extra space to fit a conservatory on the house to be built on Lot # 87. 76. The intention of the parties with respect to the land to be conveyed is clear and requires reformation of the deed on the ground of mutual mistake so as to convey land having a 12 frontage of 139.5 feet on the street and a rear width of 124.8 feet instead of land with a frontage of 135 feet and a rear width of 110.8 feet. WHEREFORE, Plaintiffs David and Carol Ivey request the Court enter judgment in their favor and against Defendant Charter Homes at the Preserve, Inc., and to reform the deed to convey a frontage of 139.5 feet on the street and a rear width of 124.8 feet instead of a frontage of 135 feet and a rear width of 110.8 feet, and to award costs and such other relief as the Court deems appropriate. COUNT II - In the alternative RESCISSION 77. Plaintiffs incorporate the averments contained in paragraphs 1 through 76 as if fully set forth herein. 78. Plaintiff and Defendant were mutually mistaken as to the right side boundaries of Lot # 88 at the time Defendant conveyed the property to Plaintiffs and the deed was prepared on or around December 29, 2006. 79. This mutual mistake regarding the property line boundaries concerns a material element of fact on which the conveyance of the property was made. 80. This mutual mistake regarding the property line boundaries was unknown to either party at the time of settlement on December 29, 2006, when the property was conveyed or when the deed was prepared. 81. This mutual mistake concerning the property line boundaries had a material effect on the parties' performance of the contract. 82. Due to the mutual mistake, Defendant has failed to perform in accordance with the agreement between the parties by, among other things, failing to provide a side yard beyond 13 the driveway, which was a material condition for the Plaintiffs' entering into the transaction, and failing to provide the landscaping package required under Change Order No. 6. 83. Plaintiffs did not bear the risk of the mistake. 84. Plaintiffs have made approximately $75,000.00 in further improvements to their property including, among other things, landscaping, a driveway extension, a patio, a finished room in the basement, custom window treatments, wainscoting and wallpapering. 85. The parties can be placed in their former positions by rescission of the deed and conveyance of the property from Defendant to Plaintiffs. 86. Plaintiffs can be made whole by Defendant retaking title and possession of the property and house and reimbursing Plaintiffs' for the contract sum of the Sales Agreement and Selection Sheet as of Change Order No. 6, in the amount of $726,900.00, the closing costs of settlement on the Property, the additional improvements Plaintiffs have made to the property in the approximate amount of $75,000.00 and for moving costs. WHEREFORE, the Plaintiffs, David and Carol Ivey request this Court to enter judgment in its favor and against Defendant, Charter Homes at the Preserve, Inc., and to enter an Order rescinding the deed and conveyance between the parties and awarding Plaintiffs an amount in excess of $801,900.00, plus costs and such other relief as the Court deems appropriate. COUNT III - In the alternative EQUITABLE ESTOPPEL 87. Plaintiffs incorporate the averments contained in paragraphs 1 through 86 as if fully set forth herein. 88. Defendant made numerous consistent representations to the Plaintiffs both before, during and after conveyance of the property, that the right side boundary of Lot # 88 began at the right front corner where the stake was placed by the white mark on the curb and the curb cutout 14 and extended along a line parallel to the driveway installed by Defendant to the corresponding right rear corner of the lot. 89. Defendant further confirmed this as the proper right side boundary line when it installed trees, grading and grass along this line in January and April 2007, for the Plaintiffs' benefit. 90. On or about April 3, 2008, Defendant discovered that it was allegedly mistaken about the position of the property line and informed Plaintiffs that Defendant believed the actual property line was 4.5 feet to the left at the right front corner and 14 feet to the left at the right rear corner from where it was previously represented to be. 91. Defendant was mistaken about the position of the property line both before, during and after Defendant conveyed Lot # 88 to the Plaintiffs. 92. Plaintiffs reasonably relied on Defendant's mistaken representations concerning the placement of the right side boundary line of Lot # 88 and expended considerable money and effort placing improvements along the disputed property line. 93. Plaintiffs' improvements include trees and landscaping placed along the disputed line by Defendant that were part of the premium landscaping package Plaintiffs purchased from Defendant pursuant to change order number 6 to the Sales Agreement. 94. Plaintiffs' improvements include the driveway extension that Plaintiffs' installed at their expense after taking possession of the property. 95. Plaintiffs' improvements include additional landscaping, grass and a brick patio that they paid to have installed in the disputed area after taking possession of the property. 96. Plaintiffs reasonably relied on Defendant's misrepresentations concerning the property line, to their detriment. 97. Defendant permitted Plaintiffs' reliance to continue for approximately 15 months after Defendant conveyed the property to Plaintiffs. 15 98. Defendant is now estopped from demanding possession of the disputed area. 99. Defendant has demanded that Plaintiffs remove all of the improvements from the disputed area, including those that Defendant placed for Plaintiffs' benefit pursuant to the premium landscaping package Plaintiffs purchased under the Sales Agreement and subsequent change orders. Defendant has not offered to compensate Plaintiffs in any manner. 100. It would be patently unfair to permit Defendant to take possession of the disputed strip of land after Plaintiffs relied to their detriment on Defendant's numerous, consistent misrepresentations concerning the position of the right side property line. 101. Defendant is in the business of construction and real estate development. 102. Plaintiffs are consumers and reasonably relied on Defendants misrepresentations concerning the location of the property line. 103. Defendant was in possession of the information necessary to determine the proper property boundary line at all times since Plaintiffs first contacted Defendant in June 2006. 104. Plaintiffs constantly requested Defendant to definitively determine the proper boundary line from June 2006 through settlement on December 29, 2006. Defendants failed to do so. Defendants should have acted upon the information in their possession while Defendant was under control of Lot # 88 and not waited until more than a year after Plaintiffs took title and possession of the property and made significant improvements to the condition of the disputed property. WHEREFORE, Plaintiffs David and Carol Ivey request the Court to enter judgment in their favor and against Defendant Charter Homes at the Preserve, Inc., and to enter an Order that Defendant is forever estopped from demanding possession of the disputed property, measuring approximately 4.5 feet at the right front property boundary and increasing to 14 feet at the right rear property boundary, and to further award costs and such other relief as the Court deems appropriate. 16 COUNT IV - In the Alternative VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT, 73 P.S. & 201-2(xvii) 105. Plaintiffs incorporate herein by reference the averments of paragraphs 1 through 104 above as if set forth fully herein. 106. Defendant engaged in fraudulent conduct which created a likelihood of confusion or misunderstanding on the part of the Plaintiffs regarding the condition and property boundaries of Lot # 88. 107. Defendant made numerous and consistent misrepresentations to the Plaintiffs that the right side boundary line of Lot # 88 was as marked by the stake Defendant placed in the ground by the white mark and cut in the curb and that the property line continued from that point along a line parallel to the driveway until it ended at the right rear corner of the property. 108. Defendant made representations to the Plaintiffs that there would be an adequate side yard to the right of the driveway after construction of Plaintiffs' home on Lot # 88. 109. Defendant's representations to Plaintiffs in these regards were material to the transaction between Plaintiffs and Defendant regarding the Plaintiffs purchase of the Property and construction of the home and conveyance of the property from Defendant to Plaintiffs under the Sales Agreements and any addenda to that agreement. 110. Defendant's representations in these regards were made falsely, with knowledge of the falsity or recklessness as to whether such representations were true or false. 111. Defendant at all times had the information in its possession necessary to determine the falsity of its representations concerning the property boundary. 112. Defendant's representations to Plaintiffs in these regards were made with the intent of having the Plaintiffs rely upon such representations. 17 113. Plaintiffs reasonably and justifiably relied on the Defendant's representations regarding the location of the property line between Lot # 87 and Lot # 88 and whether there would be an adequate side yard to the right of the driveway. 114. Plaintiffs have suffered injury or damages that were caused by their reliance on the Defendant's misrepresentations. 115. Plaintiffs' damages are in excess of $75,000.00. 116. Pursuant to 73 P.S. § 201-9.2(a), Plaintiffs are entitled to treble damages, reasonable attorney's fees and costs. WHEREFORE, Plaintiffs, David and Carol Ivey respectfully request this Honorable Court to enter judgment in its favor and against the Defendant Charter Homes at the Preserve, Inc., in an amount in excess of $75,000.00, plus treble damages, reasonable attorney's fees, costs, plus such other relief as the Court deems appropriate. COUNT V - TRESSPASS VIOLATION OF THE STORM WATER MANAGEMENT ACT, 32 P S & 6801, et sea 117. Plaintiffs incorporate the averments contained in paragraphs 1 through 116 as if fully set forth herein. 118. Defendant has altered the grading on Lot # 86, Lot # 87 and other areas so that storm water runoff now runs directly from Lots 86 and 87 onto Plaintiffs' property. 119. The storm water runoff caused erosion on Plaintiffs' property and also causes mud, sediment and debris eroded from Lots 86 and 87 to collect on Plaintiffs' property. 120. During and after periods of rain, heavy storm water runoff runs onto Plaintiffs' property from Lots 86 and 87 and forms a "river" that runs down Plaintiffs' driveway, across landscaped areas, sidewalks and out into the street. 121. The storm water runoff reaches a depth of several inches during and after rain events and leaves caked mud on Plaintiffs' grass, sidewalks, driveway and landscaped areas. 18 122. Plaintiffs could not access their garage or use the rear walkway to their deck due to the large amount of sediment and mud left behind by the storm water runoff from Lots 86 and 87. 123. Plaintiffs have notified Defendant on numerous occasions over the course of the past 16 months about the storm runoff and damage caused thereby. Defendant has promised to take action to remediate the problem and clean up the mud and debris left on Plaintiffs' property but to date have done nothing to remedy the situation. 124. Defendant owed a duty to Plaintiffs to manage the quantity, velocity and direction of storm water runoff to protect Plaintiffs' property from injury. 125. Defendant owed a duty to Plaintiffs not to alter the flow of surface water from property owned, controlled, or developed by the Defendant, to limit the extent of alteration, or to take measures to prevent alteration from causing harm to the plaintiff. 126. Defendant is further obligated to comply with all state, county, municipal and other local rules, regulations and ordinances controlling storm water management. 127. Defendant has altered the flow of surface water on Lots 86, 87 and other areas so that storm water runoff flows on to Plaintiffs' property, causing damage to Plaintiffs' property. 128. The Defendant altered the flow of surface water to a greater degree than was permissible under the Storm Water Management Act, 32 P. S. § 680. 1, et. seq., in violation of the Act. 129. Defendant has failed to comply with state, county, municipal or other local rules, regulations or ordinances controlling storm water management. 130. Further, Defendant's were negligent in the creation, maintenance and operation of storm water management systems during the development of Lots 86, 87 and other areas adjacent to Plaintiffs' property. 19 131. Defendant's actions, inactions, negligence or omissions have created a nuisance in that storm water runoff flows onto Plaintiffs' property and caused harm thereto. 132. Plaintiffs have suffered and continue to suffer harm as a result of Defendant's alteration of the flow of storm water or surface water. 133. The harm or some part of the harm suffered by Plaintiffs was proximately caused by the Defendant's alteration of the flow of surface water. WHEREFORE, Plaintiffs David and Carol Ivey request the Court to enter judgment in its favor and against Defendant Charter Homes at the Preserve, Inc. and enter an order directing Defendant to install adequate storm water drainage so as to cease the flow of storm water runoff onto Plaintiffs' property, and to award Plaintiffs damages in an amount in excess of $10,000.00, costs and such other relief as the Court deems appropriate. Respectfully Submitted, REAGER & ADLER, P.C. Date: June 23, 2008 Jo"H. Pietrzak-,-V-squire Attorney I.D. No. 79538 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Attorneys for Plaintiffs. 20 Cxti?d;f F+ 114 Foxshire Drive T 717.560.1400 Lancaster, PA 17601 F 717.560.1138 charterhomes.com CHARTER Homes & Neighborhoods June 29, 2006 Mr. & Mrs. David Ivey 1009 Good Hope Road Mechanicsburg, PA 17050 Dear Mr. & Mrs. Ivey: Enclosed please find a ratified copy of your Purchase Agreement and Homeowner Association documentation relating to Lot #88 in the Preserve at Hampden neighborhood. Please feel free to contact your Neighborhood Sales Manager if you have any questions. Thank you for purchasing your new home from Charter Homes. Sincerely, CHARTER HOMES Jennifer Todd Contract Administrator Enc. NEW HOME PURCHASE AGREEMENT By this Agreement, dated the 23rd day of June, 2006 ("Agreement Date") David Ivey and Carol Ivey (the "Buyer") with an address of 1009 Good Hope Road Mechanicsburg, PA 17050 agrees to purchase and Charter Homes at The Preserve, Inc., a Pennsylvania corporation (the "Seller") with an address of t 114 Foxshire Drive Lancaster PA 17601 agrees to sell Lot 88, in The Preserve, a Planned Community as established by the filing of the Declaration of Covenants, Restrictions, Easements and Establishment of Homeowners Association for The Preserve, a Planned Community in Hampden Township, Cumberland County, Pennsylvania ("Declaration") of record in the Office of the Recorder of deeds in and for Cumberland County, Pennsylvania in Miscellaneous Book 705, Page 4220, as amended„ 6120 Log Cabin Trail Enola, PA 17025 (the "Property"), together with a Home, built or to be built by Seller in a good and workmanlike manner in accordance with the home plan and options as set forth on the SELECTION SHEET attached to this Agreement for the TOTAL PURCHASE PRICE of: $691.970.00 1. EARNEST MONEY DEPOSIT. To guarantee performance by Buyer of Buyer's obligations in this Agreement, Buyer has paid an Earnest Money Deposit in the amount of :............... $10,000.00 to SELLER. Seller will hold and disburse the Earnest Money Deposit in accordance with all applicable laws.. 2. OPTION/CUSTOM CHANGE DEPOSITS. If Buyer changes or options are incorporated into the Home Buyer agrees to pay OPTION/CUSTOM CHANGE DEPOSITS to Seller As follows: a. Prior to or with this Agreement Buyer has paid .............................. 0.00 b. Buyer will pay OPTION/CUSTOM CHANGE DEPOSITS in accordance with the SELECTION SHEET and any CUSTOM CHANGE REQUESTS agreed to by Buyer and Seller. If Buyer does not complete Settlement for any reason (except default by Seller), the OPTION/CUSTOM CHANGE DEPOSITS will be retained by Seller, not as a penalty, but to reimburse Seller for the cost of CUSTOM CHANGE REQUESTS and/or OPTIONS incorporated into the Home. At Settlement, Seller will credit Buyer in .the amount of the total of OPTION/CUSTOM CHANGE DEPOSITS paid by Buyer to Seller. 3. The RELEASE DATE is ........................................................................... 7/14/2006 The RELEASE DATE is that date on which all contingencies to this agreement will terminate. If Buyer does not complete and execute the SELECTION SHEET for the Home on the Property on or before the RELEASE DATE, Buyer will be in default of Buyer's obligations pursuant to the terms of this Agreement. 4. Subject to completion of construction of the Home by Seller in accordance with the terms of this Agreement, the estimated SETTLEMENT DATE is .................................................... 12/06 +- 30 days Printed: 06/23/2006 1 Initia < </' Date ?9 q o ?g Initials Date f, -?q-p (? 5. CONTINGENCIES Until, and only until, the RELEASE DATE, this Agreement is subject to the following CONTINGENCY(IES): NONE If any and all CONTINGENCIES are not satisfied on or before the RELEASE DATE: (1) either Buyer or Seller may terminate this Agreement in writing on or before the RELEASE DATE and, if so terminated, any Earnest Money Deposits and/or Option/custom Change Deposits paid by Buyer will be returned to Buyer and neither Buyer nor Seller will have any further obligations to the other under this Agreement, or (2) if this Agreement is not terminated in writing on or before the RELEASE DATE, all CONTINGENCIES will terminate on the RELEASE DATE and thereafter Seller and Buyer will be obligated to perform their respective obligations pursuant to the terms of this Agreement. Unless otherwise set forth in this Agreement, the failure by either party to perform any obligation hereunder shall constitute a default in the performance of this Agreement by such party. Buyer acknowledges that if Buyer secures a Mortgage Loan Commitment which is later withdrawn for failure to meet conditions of the commitment, such as failure to sell and/or to complete settlement on property which Buyer currently owns, Buyer will still be obligated to complete Settlement. 6. RECEIPT AND ACKNOWLEDGMENT OF DOCUMENTS AFFECTING PROPERTY OWNERSHIP. Buyer acknowledges that Buyer has received, or will receive, on or before thirty (30) days after the Agreement Date of this Agreement, the following documents and information regarding ownership of the Property: The Public Offering Statement applicable to the Property, including copies of the Declaration, as amended, and the actual or proposed budget and homeowner assessments of The Preserve Neighborhood Association ("Property Documents"). Property ownership in The Preserve is subject to the provisions of all documents of record including, but not limited to, the recorded Declaration, as amended, and the recorded Subdivision plan(s) (referenced in the Public Offering Statement). Buyer shall notify Seller in writing if Buyer has not received the Property Documents on or before thirty (30) days after the Agreement Date and the absence of such notice, on or before forty (40) days after the Agreement Date, shall be conclusive proof of the receipt by Buyer of the Property Documents on or before thirty (30) days after the Agreement Date. Buyer acknowledges that Buyer has had the opportunity to understand all of the provisions of the Property Documents and all other documents of record (including, but not limited to, easements and restrictions encumbering the Property and its use, covenants running with the land, and obligations which attach to Property ownership); Buyer acknowledges that the Property will be conveyed to Buyer subject to all of the rights and duties as established by documents of record; and Buyer agrees to accept the responsibilities of ownership as stated in all documents of record. 7. CONSTRUCTION OF HOME. Seller will have the sole right to make all decisions regarding the construction of the Home and the development of the Property including, but not limited to, establishment of and changes in grade, removal of trees (if any are present), placement of utility lines and equipment, location and design of driveways, walks, landscaping and drainage (including swales), and all items of a similar nature. Seller shall solely determine which trees are to be removed for placement and construction of the home, driveway and other improvements, including access. Seller will not be required to restore any trees removed. Seller does not represent nor warrant that any existing trees will survive. Printed: 06/12/2006 r Initids Date Initials (} - Date 6 JT=?E, 8. DESIGN IMPROVEMENTS. As part of a continuing program of home designs improvements, the Plans and Specifications are subject to change in accordance with any product changes provided to the Buyer and the terms of this Agreement. The Home may differ from any Model Home or information in sales materials (including brochures and displays) as a result of, but only as a result of, amendments or revisions to the Plans and Specifications and normal construction tolerances and variances. 9. FIXTURES NOT INCLUDED IN THE SALE. This sale and purchase does not include any furniture, furnishings, decorator wall and floor coverings, light fixtures, landscaping, and items of a similar nature unless specifically stated in the Specifications and/or on the SELECTION SHEET attached to this Agreement. 10. ACCESS TO PROPERTY. A HOME CONSTRUCTION SITE IS A HAZARDOUS AREA. If Buyer enters the Property prior to Settlement, Buyer agrees to indemnify and hold Seller harmless for any resulting bodily injury or property damage. 11. NO UNAUTHORIZED WORK. Because the Property and the Home are property of the Seller until settlement, no unauthorized work may be done in the Home or on the Property. Unauthorized work done for or by Buyer will be removed by Seller, at the expense of the party who did, or attempted to do, unauthorized work. 12. LOSS PRIOR TO SETTLEMENT. Except for loss or damage resulting from Buyer entering the Property prior to Settlement, or resulting, directly or indirectly, from work by or for Buyer which Seller did not authorize, Seller will be responsible for any loss or damage to the Property prior to Settlement. 13. COMPLETION OF CONSTRUCTION. Settlement will occur, without holdback or escrow of any portion of the Purchase Price, when a Certificate of Occupancy or a Use and Occupancy Certificate is issued for the Home on the Property. A minor amount of work, not affecting the livability of the Home, may not be complete at time of Settlement. Seller will remain obligated to complete any such incomplete work following Settlement. If, because of incomplete work, Buyer's mortgage loan lender requires funds to be placed in escrow as a condition of providing mortgage financing, any such funds shall be provided by and deposited in such escrow by Buyer. 14. WARRANTY. Seller has provided to Buyer, prior to execution of this Agreement, Seller's warranty applicable to the construction of the Home ("Your Warranty" together with the "One Year Limited Warranty" and "Performance Standards" which are collectively referred to as the "New Home Warranty") contained within the "Post Settlement" portion of the Building Your New Home Manual. The terms and conditions of the "New Home Warranty" are incorporated in this Agreement by reference and made part of this Agreement. Buyer acknowledges that Buyer has read, understands, and agrees to the terms of the New Home Warranty Buyer including the waivers of implied warranties of habitabilityreasonable workmanship, merchantability, Initials and fitness for purpose. Buyer expressly acknowledges and agrees that Buyer accepts the New Home Warranty as a fair, complete, and clear warranty of the obligations of Seller for the improvement of the Property and the construction of the Home in accordance with the terms and conditions of this Agreement. Buyer accepts the New Home Warranty in satisfaction of, and in lieu of, any and all other warranty or warranties, whether express or implied, relating to the construction of the Home. There are no warranties which extend beyond the New Home Warranty contained within the "Post Settlement" portion of the Building Your New Home Manual. The dispute resolution provisions of this New Home Purchase Agreement as set forth in Section 25 of this New Home Purchase Agreement shall apply to and govern the determination and resolution of any and all disputes and/or claims pursuant to the terms of the New Home Warranty. The provisions of Section 25 of this New Home Purchase Agreement shall survive settlement of the purchase of the Property. 15. NEW HOME ORIENTATION. Prior to Settlement, a representative of the Seller will go through the Home with Buyer, together with no more than one additional individual, for an Orientation of the Home at which time the Seller's representative will acquaint Buyer with the Home and its features, answer questions, and verify that the Home has been constructed in accordance with the terms of this Agreement. Printed: 06/12/2006 3 Initial I Date 6-1+-Ob Initials Date { 16. SETTLEMENT. The Settlement will be held within five (5) days after a Certificate of Occupancy, a Use and Occupancy Certificate or Permit, or other similar governmental approval of occupancy of the Home on the Property is granted ("Occupancy Approval"). Failure to settle within five days after notice from Seller to Buyer that Occupancy Approval has been obtained will constitute default by Buyer. At Settlement: a. Seller will convey title to and deliver possession of the Property to Buyer by a Special Warranty Deed, conveying good and marketable title (insurable by a licensed title insurance company), free and clear of all encumbrances and liens of record except easements, conditions, covenants and restrictions existing at the time of Settlement. b. Seller will provide any and all Certificate(s) of Occupancy or Use and Occupancy Certificate(s) which are required to be issued by any and all governmental entities having jurisdiction of such certificates c. All Transfer Taxes due on this sale and purchase will be paid one half (1/2) by Seller and one-half (1/2) by Buyer. Property taxes and homeowner association assessments, if any, affecting this Property will be pro rated, with each party paying such party's share. d. Seller will 1) prepare the deed and any releases of mortgages, liens or judgments against the Property (Seller will not pay for the preparation of these documents by anyone else) and 2) pay for the recording of any such releases. e. Buyer will be responsible for and pay any charges of any mortgage lender providing funds to Buyer, any charges of the title insurer insuring Buyer's title (including title search, title insurance, endorsements, and any as-built or other survey), and any charges of the person or firm conducting Settlement (including costs of recording the deed and mortgage, any settlement fees and disbursement charges). 17. RELEASE OF LIENS. Seller will not be obligated to furnish any release of liens signed by the contractors, subcontractors or suppliers providing labor or materials for the construction of the Home. However, Seller represents and warrants to Buyer (and to any entity insuring Buyer's title to the Property) that no claims will be asserted against Buyer or the Property by any contractor, subcontractor or supplier with whom Seller has contracted and who has provided labor or materials for the construction of the Home; and this warranty shall remain the Seller's obligation after Settlement (survive Settlement) 18. RADON GAS. Seller makes no representation regarding the absence or presence of radon gas on the Property. Buyer agrees that Seller will not be responsible, now or in the future, for any costs associated with the testing and/or mitigation of radon, nor for any losses or claims, including injuries, which may arise from the presence of radon. 19. MOLD. Seller has provided Buyer (as a part of the "Building Your New Home" Manual in the section entitled "Special Conditions"), information regarding the occurrence of Mold in residential dwellings and has informed Buyer of Seller's construction procedures and specifications regarding mold avoidance. Buyer has reviewed Seller's mold avoidance construction procedures and specifications, and Buyer agrees that Seller will not be responsible for any damages caused by mold occurring on the Property, including but not be limited to property damage, personal injury, adverse health effects, and any consequential damage. 20. BUYER DEFAULT. Seller's performance of Seller's obligations pursuant to the terms and conditions of Agreement are undertaken and performed in reliance upon the representations, warranties and covenants of Buyer set forth in this Agreement. The remedies of Seller for default by Buyer shall not, in any way, be limited and may include, but shall not in any way be limited to, retention of Earnest Money Deposits and Option/Custom Change Deposits paid to Seller as Liquidated Damages and not as a penalty. 21. SELLER DEFAULT. Seller will not be liable for delays or failure to perform this Agreement due to factors beyond Seller's control including, but not limited to force majeure, war, civil unrest, actual or economic unavailability of labor and/or materials or unavailability of land, site improvement work, utility services, or permits or approvals to be obtained by others. If the Home is not substantially complete within eight (8) months after the Release Date, Buyer may (but is not required to) terminate this Agreement In the event that this Agreement is terminated pursuant to the previous sentence, or if Seller defaults in Seller's obligations under this Agreement, all Earnest Money Deposits and Option/Custom Change Deposits, if any, will be returned to Buyer and Seller will pay to Buyer the amount of any mortgage or title costs which Buyer has incurred for this purchase including title insurance application, mortgage application, appraisal, and fees such as rate lock-in fee, and this Agreement will be void, and neither party will have any further obligation to the other. Buyer may not sue Seller for specific performance of Seller's obligations. Printed: 06/12/2006 4 ]nitia Date Initials Date // X310 22. TIME OF ESSENCE. Time is of the essence of all obligations of the parties to this Agreement. 23. NOTICES. Notices will be considered given upon delivery (provided a signed receipt or notarized affidavit of delivery is obtained if hand delivered or delivered by any delivery service) or three (3) days after deposit with the US Postal Service first class mail postage prepaid, return receipt requested, to the address of the recipient as stated in this Agreement. 24. ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer regarding the subject matter of this Agreement and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this transaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, amending, adding to or changing the terms of this Agreement. No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. Seller is not responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, their respective heirs, personal representatives, successors and assigns. 25. DISPUTE RESOLUTION. In the event of an unresolved dispute or a claim relating to this New Home Purchase Agreement, the rights and obligations hereto, or any other claims or causes of action relating to the performance of either party arising out of, or relating to, this Agreement or the breach thereof, either party may elect to submit the dispute or claim for decision in accordance with the construction Industry Arbitration Rules of the American Arbitration Association by filing notice of the demand for arbitration in writing with the other party to this Agreement and with the American Arbitration Association within a reasonable time after the dispute has arisen. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with the applicable law in any Court having jurisdiction thereof. Alternatively, either party may institute an action or proceeding in the Court of Common Pleas of the county in which the Property is located and in the event of such action or proceeding, the non-prevailing party in the adjudication of any Preliminary Objections, judgment on the pleadings or summary judgment (including partial summary judgment), shall pay the prevailing party's attorneys' costs incurred in litigating such Preliminary Objections, judgment on the pleadings or summary judgment. 26. REAL ESTATE BROKERS. Buyer and Seller each represent that they have not dealt with any real estate agents or brokers in this transaction and that no real estate commissions or fees are payable as the result of the sale and purchase of the Property in accordance with this Agreement. [Remainder of this page intentionally left blank] Printed: 06/12/2006 Ini Is e Initials Date Date /? This Agreement is not binding on Seller until ratified by the President, a Vice President or a Director of Homebuilding of Charter Homes at The Preserve, Inc. By signing this Agreement, BUYER agrees to be bound by thgseRy?,sof this Agreement. - ?-t? F [ N . /V`" i (O -I BUYER 617 By signing this Agreement, SELLER agrees to be bound by the terms of this Agreement. Charter Homes at The Preserve, Inc., a Pennsylvania coroora*n jC\ By ;? I [IV , r 1--p U -- ' Assistant Vice President Ratified By ' Vice President or Director of Homebuilding I Printed: 06/12/2006 6 Initial Date 6 -)Y-06 Initials Date (o /?-Q 6 -Fvr- bu,i 1 di pee s -t,D be ; ? v?r? 4-i' q Mo• pi tsllwlt; t1tts so dft{s J-ow% c-eAegsc . Selection Sheet t As of Change Order 4 Y ADDENDUM TO CONTRACT BETWEEN %, ?V yw David Ivey and Carol Ivey, Buyer And ZanVV%W%Urn wrillC.. WhE.r'e- 11-3 C harter Homes at The Preserve, Inc., Seller tOeD`k? O O Date: 06/22/2006 Homesite: 088/0000 Agreement of Sale Dated: 06/12/2006 Address: 6120 Log Cabin Trail N Enola, PA 17025 \ Neighborhood: The Preserve at Hampden Swing: Right Plan/Elevation Name: Henley Elevation C-30 Plan/Elevation Cod . a3930c30/* C,1ye,?r '70' y 4e, .+wcwc-k aro Ste- AA%q- tlcvah'o?n \,C.r,e- r?rGoQ*_ A-L *rvV y. Selected Options di...?rQiA.nS 7 e/??V t w %. ak Ttce- *cfc30 Great Room/Family Room: Level 30 Carpet F $450.00 1 $450.00 *X1f30 Additional Lav. Faucet: Master Bath; Level 30 Devonshire. Adds second faucet to existing package. F $520.0 1 $520.00 *XGF30 Powder Room: Level 30 Devonshire Polished Brass Plumbing Package F $450.00 1 $450.00 *XJF30 Master Bath; Level 30 Plumbing: Devonshire Polished Brass Package F $910.00 1 $910.00 ace30 Electric Range 3 F $0.00 1 Included acm20 Microwave 2 F $0.00 1 Included ad30 Dishwasher 3 F $0.00 1 Included a g10 Garbage Disposal 1 F $0.00 1 Included c1c20 All Carpet - Silver F $0.00 1 Included c1 c 1 Carpet Pad Throughout - Lvl 10 F $0.00 1 Included c1c 4 Carpet Pad Throughout - Lvl 40 F $3,530.00 1 $3,530.00 c1v10 All Vinyl Flooring - Silver F $0.00 1 Included cah10 Ktchn/Bkft Hardwood - Silver - May include the Butler's Pantry in some plans F $0.00 1 Included cdh10 Dining Rm Hardwood - Silver F $0.00 1 Included ceh10 Foyer Hardwood - Silver F $0.00 1 Included c h10 Pwdr Rm Hardwood - Silver F $0.00 1 Included c't10 Mstr Ba Crmc FlrTile- Level 10 F $0.00 1 Included c't40 Mstr Ba Crmc FlrTile- Level 40 F $300.00 1 $300.00 c'tb4 Mstr Bath Tub Tile - Premier F $840.00 1 $840.00 c t10 Bath 2 Crmc Flr Tile- Level 10 F $0.00 1 Included c t10 Bath 3 Crmc Flr Tile- Level 10 F $670.00 1 $670.00 ct h1 Garden Rm Hardwood - Level 10 F $0.00 1 Included cuh10 Sunroom Hardwood FI - Silver F $0.00 1 Included Custom matching options discount F $-25,000.00 1 $-25,000.00 cwt 10 Laund Rm Ceramic Tile -Lvl 10 F $0.00 1 Included Initials Date Initials Date Selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 1 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden fai10 Gas Fireplace - Silver - Signature F $0.00 1 Included Fireplace, with fire box framing in the interior of the house. Appalachian Mantle with slate surround. fzs20 Marble Surround ILO Slate F $260.00 1 $260.00 icrl c 1 c Crown - Living Room F $0.00 1 Included icrle 1 c Crown - Foyer/Upper Hall F $0.00 1 Included icrl h 1 c Crown - Stud F $0.00 1 Included icr27 2pc Crown -? r? (>16') - F $1,020.00 1 $1,020.00 Add 2 pc. Crown Mould to additional room not specifically available on options list, any dimension longer than 16'. icr2c 2 pc Crown - Living Room F $710.00 1 $710.00 icr2d 2 pc Crown - Dining Room F $710.00 1 $710.00 icr2e 2 pc Crown - Foyer/Upper Hall F $1,020.00 1 $1,020.00 icr2f 2 pc Crown - Family Room F $710.00 1 $710.00 icr2i 2 pc Crown - Master Bedroom F $0.00 1 Included id0at Cased Opening w/Transom 3/0 F $520.00 4 $2,080.00 S idOmt Cased Opening w/Transom 2/6 F $840.00 2 $1,680.00 Db idOwt Cased Opening w/Transom 3/0 F $890.00 1 $890.00 Db isl cx Metal Spindles-Clsd Trd Bsmt - F $350.00 1 $350.00 Level 10 Matte Black Finish istco Oak - Closed Tread Stairs Main - F $890.00 1 $890.00 Includes stained oak treads, painted risers & stringers. Landings to be finished in hardwood. All other stair parts to be unaffected by this option. Applies to main stair run only, 2nd & 3rd stair sets to be added by selecting additional quantities and indicated on the marketing brochure. Basement steps to be custom requested in all cases. ixtdl Tray Ceitin #1- Dining Rm F $0.00 1 Included ixti4 Tray Ceiling #4- Master BR - F $0.00 1 Included ***Note: May be built up into the trusses or built down from the standard ceiling depending on the truss layout.** k1011 All-Std Cbnt/Door 10/Wood 10* - F $0.00 1 Included Square Raised Panel Maple Door Initials Date Initials Date Selection Sheet (Rev. 01120/2005) ©2001-2003, G1440, Inc. Page 2 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden Homesite: 088/0000 Buyer Name: Ivey k1081 All-Std Cbnt/Door 80/Wood 10* - F $6,390.00 1 $6,390.00 Yorktowne Royalle Maple cabinets ILO std. kac20 Upg-Kit/BP CorianTops-Premier - F $0.00 1 Included This option upgrades the countertops in the Kitchen and Butler's Pantry to Corian, Premier. Standard islands will also receive the Corian, Premier. NOTE: Option kac10 MUST be selected IN ADDITION to this option. kac30 Upg-Kit/BPCorianTops-Prestige - F $1,170.00 1 $1,170.00 This option upgrades the countertops in the Kitchen and Butler's Pantry to Corian, Prestige. Standard islands will also receive the Corian Prestige. NOTE: Option kac10 MUST be selected IN ADDITION to this option. kaxb1 Add Wet Bar - Layout 10* - F $0.00 1 Included Design and location varies. See plan specific cabinet drawings and notes for more information. May only be available with certain + kitchen configurations. kaxxb Add Kitchen Waste Basket - F $210.00 1 $210.00 Single pull out waste basket. Size and location of cabinets vary per plan. See plan specific cabinet drawings for more information m03 Ext Veneer Upgrade - 3 Sides F $0.00 1 Included m0f1 Paintd Fnd to Grd-All Sides* F $0.00 1 Included m a10 25 Yr Architectural Shingle Rf F $0.00 1 Included 11 Add Brk Pvr Std Frt Prch vv a4 tUad +c F $3,040.00 1 $3,040.00 qtjm 10'Wx 12'D Treated Wood Deck* 'Dear 'TrcnY_1;q F $0.00 1 Included - Treated wood deck with 5/4 x 6 '6 rie4 Decking. Treated wood $iK of ballustrade all open sides. A+ %A;d?k1, Includes treated wood steps w/ o?C bw?p C+ rail to grade. x150 Premium Landscape - Level 50 %Ahc,n is +li.S F $0.00 1 Included sabe English Garden Room F $19,690.00 1 $19,690.00 sak Sitting Room off of MBR - See F $3,360.00 1 $3,360.00 drawings for plan layouts. May include built-ins in some plans saq Bath 3 - Includes upgrading of F $3,180.00 1 $3,180.00 water heater to 75 gallon T100117; jAshoutd bc. SNandck+ok :f the- prie?> ,Of ?-? bo.0%cw"I Initials Date Initials Date Selection Sheet (Rev. 01120/2005) 02001-2003, G1440, Inc. Page 3 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden Homesite:08 000 sau23 Conservatory #2- Brick (13x24) - F $43,450.00 1 $43,450.00 Conservatory includes the w2 option to provide even temperatures in weather extremes; Level 10 Hardwood flooring; Brick from grade to sill on 3 sides; window units fit between cast moulded columns and cornice; Tray Ceiling #1; Full Basement under Conservatory. This Option is designed for the Living Side of a plan. Any other location needs to be submitted as a CCR. sax09 Add 1' Height to Bsmt Walls - F $0.00 1 Included Adds 1' to the overall height of a basement foundation wall. May not be combined with the sax10 option. sbj10 Master Bath - Alt Layout 10 - ' Revig-w w%&,* F $8,370.00 1 $8,370.00 Design varies per plan. :s %t%t1u *-cL Reference plan for specific PAV. obww* information poerc* ?a'• sbp10 Bath 2 - Alt Layout 10 - Design F $0.00 1 Included varies per plan. Reference plan forspecific information s g20 2 Car Side Ent Garage F $0.00 1 Included sg30 3rd Car Addtn to Side Ent Grg - F $0.00 1 Included Typically adds 7' to front of garage. Adds (1) 16 wide overhead door ILO (1) 9 wide overhead door. Req's PLO Include or Buyer Selection of s q20. ska42 Hearth Kitchen - Cabinet F $9,360.00 1 $9,360.00 configurations and appliance locations vary per plan. Appliance features: Dishwasher 80, SS Gas Cooktop 90, Vented Hood Assembly byCab. Supplier, Elect. Micro / Wall Oven Combo 80, Disposer 60. Other features: Gas Line to Cooktop, Ceramic Tile Lvl %V4*1 50 behind Cookto . skw30 Laundry Room Layout 3 - Design sps?1 ?%4k F $16,140.00 1 $16,140.00 varies per plan. Reference plan 's uXdcd• for s ecific information tOh 1 "Pitcher" Handleset ILO Std F $0.00 1 Included Initials Date Initials Date Selection Sheet (Rev. 01/20/2005) 02001-2003, G1440, Inc. Page 4 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden Homesite: 088/0000 Buyer Name" Ivey tOxb Bilco Style Basement Door - F $3,400.00 1 $3,400.00 Include steel insulated door unit in basement wall; precast concrete stair unit; steel access door; switched weatherproof light inside of unit uxhw Add'I Wood Hopper Basement Yo A-lnese. F $260.00 4 $1,040.00 Wdw - Locate this additional ;endows window on Brochure Drawing. opan Use of this option subject to y 'b" i`n Design considerations. Y%CWLC'M'Ln+. vbu10 Garage Door Opener w/1 Remote abow. F $0.00 1 Included vc 10 Ext Lam Post Light BrassGuard XtT9Xt F $0.00 1 Included vf110 Light Fixture Pk - Silver F $0.00 1 Included vl Alarm System Complete - F $0.00 1 Included Standard system includes protection of all 1 st floor openings, 2 keypads, 16 zone master panel w50 Level 50 HVAC System F $0.00 1 Included x000K All Kohler/Sterling Plumbing - All F $0.00 1 Included Plumbing fixtures and faucets to be Kohler or Sterling. xaf35 KitchnFct-Extensa PI/Out Spray F $0.00 1 Included xribf Full Bath Bsmt - Rough In Only- F $1,050.00 1 $1,050.00 Includes risers for future tub/shower, toilet and sink hook- ups tied in below the slab emptying into a sewage pit set into the slab. "This option requires the purchas Cst2 dyes forms of baseme a ress.* ki,64 mean? xriim Ice Maker Line +y ter-olt F $0.00 1 included xx2co 2" Conduit - BSMT to ATTIC F $0.00 1 Included 44OW MCMIt WASide spic??s7 1 on c?a cQ& V__ sidle. o v0n cA o v% e. . n b0.c,1G C'1keG? ?c.?lc?t'wune sw'?neier?e 1? of c.4ech?'eat out lets wka?4- owl ltd vh ot-s?de. o? house t?tnc,;/ 1 or ? n C?'?? Initials Date Initials Date Selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 5 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden Homesite: 088/0000 Buyer Name: Ivey Desion Center Items 1000. EXTERIOR 1010. Stone Shape --- Color --- Mortar 1020. Brick Color -- Mortar Color: Ben Franklin Brick w/ KLM Mortar 1030. Accent Brick Color --- Mortar 040. Stucco Color ad Aotx = sJkc nex ?r'tyf 050. Window Color Color: 1060. Shutter Color Colo ICI Paints; 13tewart House Brown; 50YR 06/081 1070. Front Door Color Exterior / Interior Color: fCTT"JMTs-, Stewart House Brown; 50YR 06/081 1072. Other Exterior Door Colors Color: To Match Siding 1074. Garage Door Color Color: To Match Siding 1080. Siding Color Color: Heritage Cream 1090. Soffit / Fascia / Gutter Color Color: Frost 1092. Specialty Roof Color 1100. Downspout Color Color: Frost 1110. Stamped Concrete: Pattern -- Base Color --Rls Agent Color 1120. INTERIOR 1130. Wall Color other than standard color 1140. Trim Color other than standard color 1150. Railing Stain color other than match hardwood 1160. Fireplace Surround: FR Color --- LR Color --- Other Color Color: Cream Marble 1170. ROOM FINISHES 1180. KIT/BP/FR 1190. KIT/BP/FR Cabinet Door Color: Ro alle 1200. KIT/BP/FR Cabinet Wood Color: Maple Natural Hearth Area Cabinets ONLY?Glacier White w/ Mocha Graze Z's -tlksc Qw."r T 1210. KIT/BP/FROptional Finish • 1220. KIT/BP/FR Hardware Color: C03 1230. KIT/BP/FR Main C-To Type Color: Corian; Aurora 1240. KIT/BP/FR Main C-To Color 1250. KIT/BP/FR Accent C-To Type 1260. KIT/BP/FR Accent C-To Color 1270. KIT/BP/FR Sink Faucet Style Color: Coralais; Biscuit 1280. KIT/BP/FR Faucet Finish 1290. KIT/BP/FR Appliance Color Color: Stainless Steel 1300. KIT/BP/FR Fixture / Sink Color: W A B Color: Biscuit 1310. KIT/BP/FR Details: Glass Doors / pr --- Roll Out Shelves -- App Garage --- Waste Basket Color: Waste Basket Pullout o i? kV- 0?,100V V P%X%% 0VI.}5 ?h V% 5 S 1320. MBATH 1330. MBATH Cabinet Door Color: Ro alle 1340. MBATH Cabinet Wood Color: Maple; Natural 1350. MBATH Optional Finish 1360. MBATH Hardware Color: C17 Initials Date Initials Date Selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 6 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden 1370. MBATH Main C-To Type Color: Cult. Marble hite on Whit 1380. MBATH Main C-To Color 1390. MBATH Sink Faucet Style Color: Devonshire; Polished Brass bars +W< I cmIC 1400. MBATH Faucet Finish eX- 1410. MBATH Shower / Door Glass: C 0 Color: Clear 1420. MEATH Fixture / Sink Color: W A B Col iscwt 1430. BATH 2 1440. BATH 2 Cabinet Door Color: Ro alle 1450. BATH 2 Cabinet Wood Color: Maple; Natural 1460. BATH 2 Optional Finish 1470. BATH 2 Hardware Color: C18 1480. BATH 2 Main C-To Type Color: Cult. Marble; White on White 1490. BATH 2 Main C-To Color 1500. BATH 2 Sink Faucet Ste Color: Standard; Chrome si ." ? 1510. BATH 2 Faucet Finish 1520. BATH 2 Shower / Door Glass: C 0 1530. BATH 2 Fixture / Sink Color: W A B Color: Biscuit 1540. BATH 3 1550. BATH 3 Cabinet Door Color: Ro alle 1560. BATH 3 Cabinet Wood Color: Maple; Natural 1570. BATH 3 Optional Finish 1580. BATH 3 Hardware Color: C18 1590. BATH 3 Main C-To Type Color: Cult. Marble; White on White 1600. BATH 3 Main C-To Color 1610. BATH 3 Sink Faucet Style Color: Standard; Chrome ccrsi der an 1620. BATH 3 Faucet Finish 1630. BATH 3 Shower / Door Glass: C 0 1640. BATH 3 Fixture / Sink Color: W A B Color: Biscuit 1650. BATH 4 1660. BATH 4 Cabinet Door 1670. BATH 4 Cabinet Wood 1680. BATH 4 Optional Finish 1690. BATH 4 Hardware 1700. BATH 4 Main C-To Type 1710. BATH 4 Main C-To Color 1720. BATH 4 Sink Faucet Style 1730. BATH 4 Faucet Finish 1740. BATH 4 Shower / Door Glass: C 0 1750. BATH 4 Fixture / Sink Color: W A B 1760. POWDER 1770. POWDER Cabinet Door 1780. POWDER Cabinet Wood 1790. POWDER Optional Finish 1800. POWDER Hardware 1810. POWDER Main C-To Type 1820. POWDER Main C-To Color 1830. POWDER Sink Faucet Ste Color: Devonshire; Polished Brass 1840. POWDER Faucet Finish 1850. POWDER Fixture / Sink Color: W A B Color: Biscuit Initials Date Initials Date .y; Selection Sheet (Rev. 01/20/2005) 02001-2003, G1440, Inc. Page 7 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden Homesite: 08810000 Buyer Name: Ivey -ff 1860. LAUNDRY 1870. LAUNDRY Cabinet Door Color: Ro alle 1880. LAUNDRY Cabinet Wood Color: Maple; Natural 1890. LAUNDRY Optional Finish 1900. LAUNDRY Hardware Color: C03 1910. LAUNDRY Main C-To Type Color: Wilsonart Laminate; Coral Roca 4839-38 1920. LAUNDRY Main C-To Color 1930. LAUNDRY Accent C-To Type 1940. LAUNDRY Accent C-To Color 1950. LAUNDRY Sink Faucet Style Color: Standard; Chrome cortsidor Gin v? 1960. LAUNDRY Faucet Finish 1970. LAUNDRY Fixture / Sink Color: W A B Color: Biscuit 1980. MUD ROOM 1990. MUD ROOM Cabinet Door 2000. MUD ROOM Cabinet Wood 2010. MUD ROOM Optional Finish 2020. MUD ROOM Hardware 2030. STUDY 2040. STUDY Cabinet Door 2050. STUDY Cabinet Wood 2060. STUDY Optional Finish 2070. STUDY Hardware 2080. ENTERTAINMENT CENTER 2090. ENTERTAINMENT CENTER Cabinet Door 2100. ENTERTAINMENT CENTER Cabinet Wood 2110. ENTERTAINMENT CENTER Optional Finish 2120. ENTERTAINMENT CENTER Hardware 2130. LIGHTING Color: Standard BrassGUARD 2140. Breakfast: Model No. --- Finish 2150. Dining Room: Model No. --- Finish 2160. Foyer: Model No. --- Finish 2170. Powder Room: Model No. -- Finish 2180. Ext. Post Lam : Model No. -- Finish 2190. Ext. Front Door: Model No. -- Finish 2200. Ext. Other Door: Model No. --- Finish 2210. FLOORING 2220. Kitchen: Flooring Style --- Size/Color/Grout Color: Wood; Dundee; Natural -rite ? 2230. Kitchen: Hearth Tile Color: Selce; Terracotta SL53 6x6 with Sand Beige 2240. Kitchen: Backs lash Color: Tile; Selce; Yellow Mars SL52 6x6 with Saltillo Grout 2250. Break/Morning: Flooring Style --- Size/Color/Grout Color: Wood; Dundee; Natural 2260. Livin : Flooring Style -- Size/Color/Grout Color: Carpet; Georgian Ba ; Hone Cake 23211 2270. Dining/Formal: Flooring Style -- Size/Color/Grout Color: Wood; Dundee; Natural 2280. Foyer: Flooring Style -- Size/Color/Grout Color: Wood; Dundee; Natural Initials Date Initials Date r~? Selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 8 Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden Homesite: 08810000 Buyer Name: Ivey 2290. Family/Great: Flooring Style --- Color: Carpet; Madness ZL210; Pat of Butter 00225 Size/Color/Grout 2300. Powder Room: Flooring Style -- Color: Wood; Dundee; Natural Size/Color/Grout 2310. Stud : Flooring Style --- Size/Color/Grout 2320. Master BR: Flooring Style --- Color: Carpet; Georgian Bay; Honey Cake 23211 Size/Color/Grout 2330. Master Bath: Flooring Style -- Color: Tile; Bella Vista; Light Noce; 12x12 w/ Almond Grout Size/Color/Grout 2340. Master Bath: Tub Tile Color: Tile; Bella Vista; Light Noce; 6x6 w/ Almond Grout and Accent Listello 2350. Master Sitting: Flooring Style --- Size/Color/Grout 2360. Bedroom 2: Flooring Style --- Color: Carpet; Georgian Bay; Honey Cake 23211 Size/Color/Grout 2370. Bedroom 3: Flooring Style --- Color: Carpet; Georgian Bay; Honey Cake 23211 Size/Color/Grout 2380. Bedroom 4: Flooring Style -- Color: Carpet; Georgian Bay; Honey Cake; 23211 Size/Color/Grout 2390. Bedroom 5: Flooring Style --- 4- Size/Color/Grout 2400. Bath 2: Flooring Style --- Color: Tile; French Provincial; Matte Finis ; 12x12 Almond Size/Color/Grout Grout 2410. Bath 3: Flooring Style --- Color: Tlle; French Provincial; Matte Fini ; 12x12 / Almond Size/Color/Grout Grout 2420. Bath 4 / PR2: Flooring Style --- Size/Color/Grout 2430. Loft / Computer: Flooring Style --- Size/Color/Grout 2440. Flex Space: Flooring Style --- Color: Carpet; Georgian Bay; Honey Cake 23211 /Location: Game Size/Color/Grout Room 2450. Sunroom / Conservatory: Flooring Style - Color: Wood; Dundee; Natural -- Size/Color/Grout 2460. Mudroom: Flooring Style --- Size/Color/Grout 2470. Laundry: Flooring Style -- Color: Tile; Sierra Aspen 1525; 12x12 w/ Sand Beige Size/Color/Grout Grout/Location: Studio 2480. Garden Room: Flooring Style --- Color: Wood; Dundee; Natural Size/Color/Grout 7 2490. Main Stairwell: Flooring Style --- Color: Wood; Dundee; Natural/Location 2nd Hallway; Carpet; Size/Color/Grout Georgian Ba ; Hone Cake 23211 2500. Basement Stairwell: Flooring Style --- Size/Color/Grout Initials Date Initials Date Selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 9 y Selection Sheet As of Change Order 4 Neighborhood: The Preserve at Hampden Homesite: 08810000 Buyer Name: Ivey Earnest Deposits Option Deposits Purchase Price Details Base Home Price $597,990,00 Lot Premium $15,000.00 Total Options Price $112,840.00 Total Purchase Price $725,830.00 David Ivey Date Sales Representative Carol Ivey Date Seller Initials Date Initials Date Date Date D Selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 10 bij L Selection Sheet As of Change Order 6 ADDENDUM TO CONTRACT BETWEEN David Ivey and Carol Ivey, Buyer And Charter Homes at The Preserve, Inc., Seller Date: 06/27/2006 Homesite: 08810000 Agreement of Sale Dated: 06/12/2006 Address: 6120 Log Cabin Trail Enola, PA 17025 Neighborhood: The Preserve at Hampden Swing: Right Plan/Elevation Name: Henley Elevation C-30 Plan/Elevation Code: a3930c3O/* Selected Options " ion Code *cf 30 Dose - ion Calor/Location CtF Price ` Ext. Price c Great Room/Family Room: Level F $450.00 1 $450 00 30 Carpet . *X1f30 Additional Lav. Faucet: Master F $520 0 1 ? $520 00 Bath; Level 30 Devonshire. Adds . second faucet to existing acka e. *XGF30 Powder Room: Level 30 F $450.00 1 1 $450 00 Devonshire Polished Brass . Plumbing Package - - - ' *XJF30 Master Bath; Level 30 Plumbing: F $910.00 1 $910 00 Devonshire Polished Brass . -- Package i i ace 30 Electric Range 3 F $0 00 1 C Inclk -d acm20 Mi . e crowave 2 F $0.00 _ 1 ? Included ad30 _ Dishwasher 3 F $0.00 _ __ 1 Included a 10 Garbage Disposal 1 F $0.00 _- 1 Included c1c20 All Carpet -Silver F $0.00 1 Included c1cp1 Carpet Pad Throughout - Lvl 10 F $0.00 1 Included c1 c 4 _ Carpet Pad Throughout - Lvl 40 F $3,530.00 1 $3 530 00 i c1v10 cah10 All Vinyl Flooring - Silver Ktchn/Bkft Hardwood - Silver - F $0.00 , . --'11 _ In_clu_deedd 1 F $0.00 1 Included ! May include the Butler's Pantry in i some plans - cdh10 Dining Rm Hardwood - Silver F $0.00 1 Included 1 ceh10 ___ Foyer Hardwood - Silver F $0.00 1 I Included cc?h10 Pwdr Rm Hardwood - Silver F $0.00 1 i Included c t100_ c tf 40 Mstr Ba Crmc FlrTile- Level 10 Mstr Ba Crmc FlrTile- Level 40 F $0.00 1 _ Included F $300.00 1 _ $31100 c tb4 _ Mstr Bath Tub Tile - Premier F $840.00 1 _ $840 001 c?t10 ! c t10 Bath 2 Crmc Fir Tile- Level 10 Bath 3 Crmc Flr Tile- Level 10 F F $0.00 $670 00 _ 1 1 . Inc !d_ $ 0 ' ct h1 Garden Rm Hardwood - Level 10 _ F . $0.00. _ 1 _ . 0 Included l cuh10 Sunroom Hardwood FI -Silver F $0.00 1 _ Included C ustom matching options discount F $-25,000.00 1 _ $-25 000 00 cwt10 Laund Rm Ceramic Tile -Lvl 10 F 1 , . Included 6 -21-7 Init, ? Date Initials ?? Date ,>eiection meet _-- (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 1 h b v? Selection Sheet As of Change Order 6 rhood: The Preserve at Hampden Homesite:088/0000 { Buyer Name: Ivev IoirA. ', .. '. y C UrF t Price Ext. ce fai10 Gas Fireplace - Silver - Signature F $0.00 1 Included Fireplace, with fire box framing in the interior of the house. Appalachian Mantle with slate surround. fzs20 Marble Surround ILO Slate F $260.00 1 $260 00 icr1c icrle 1 c Crown - LivinRoom 1 c Crown - Fo er/U er Hall F $0.00 1 . Included icr1 h pp y 1 c Crown - Stud F F $0.00 $0.00 1 1 _ Included Included icr27 2pc Crown - Any Room (>16') - F $1,020.00 1 $1,020.00 Add 2 pc. Crown Mould to additional room not specifically available on options list, any _ dimension longer than 16'. ; icr2c 2 pc Crown - Living Room F $710.00 1 $7? Q icr2d 2 pc Crown - Dining Room F $710.00 1 . $7 00 I icr2e 2 pc Crown - Fo er/Upper Hall F $1,020.00 1 $1 020 00 icr2f 2 pc Crown - Family Room F $710.00 1 , . $71;) 00 icr2i 2 pc Crown - Master Bedroom F $0.00 1 . Incl ed id0at Cased opening w/Transom 3/0 / -1 F $520.00 4 _ $2,080.00 S idOmt Cased Opening w/Transom 2/6 F $840.00 $1 680 OOJ Db , . idOwt Cased Opening w/Transom 310 F $890.00 1 $84-0-0 _01 Db is1 cx Metal Spindles-Clsd Trd Bsmt - F $350.00 1 _ i $350.00 _ Level 10 Matte Black Finish istco Oak - Closed Tread Stairs Main - F $890.00 1 $8 Includes stained oak treads, painted risers & stringers. Landings to be finished in hardwood. All other stair parts to be unaffected by this option. Applies to main stair run only, 2nd & 3rd stair sets to be added by selecting additional quantities and indicated on the marketing { brochure. Basement steps to be _ custom requested in all cases. ixtd1 Tray Ceiling #1- Dining Rm F $0.00 1 Includeda ixti4 Tray Ceiling #4- Master BR - F $0,00 1 Included ***Note: May be built up into the trusses or built down from the standard ceiling depending on the k1011 truss layout.** All-Std Cbnt/Door 1O/Wood 10* - F $0 00 1 I Square Raised Panel Maple Door . ncluded Selection Sheet (Rev. 01/20/2005 ) @2001-2003, G1440, Inc. Initi Date 27- Initials -? Date (C' -. I -,c Page 2 I Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 088/0000 Buyer Name: Ivey Code Ve pi n Nii C Uhif pr#ce Oty W. Brice k1081 All-Std Cbnt/Door 80/Wood 10* - F $6,390.00 1 $6,390.00 Yorktowne Royalle Maple cabinets ILO std. kac20 Upg-Kit/BP CorianTops-Premier - F $0.00 1 Included i This option upgrad h he itche and I t Co n, Premier. O M S ar ands s will also receive the Corian, Premier. NOTE: Option kac10 MUST be selected IN ADDITION to this option: kac30 Upg-Kit/BPCorianTops-Prestige - F $1,170.00 1 $1,1 .00? This option upgrades the countertops in the Kitchen and j Butler's Pantry to Corian, Prestige. j Standard islands will also receive the Corian Prestige. NOTE: Option kac10 MUST be selected i IN ADDITION to this option. kaxb1 Add Wet Bar - Layout 10* - F $0.00 1 Included Design and location varies. See plan specific cabinet drawings and notes for more information. May j only be available with certain kitchen configurations. m03 Ext Veneer Upgrade - 3 Sides F $0.00 1 Included mof1 Paintd Fnd to Grd-All Sides* F $0.00 1 Included m a10 25 Yr Architectural Shingle Rf F $0.00 1 Included 11 Add Brk Pvr Std Frt Prch F $3,040.00 1 _ $3,040 OQ qtjm 10'Wx 12'D Treated Wood Deck* F $0.00 1 Inclided I - Treated wood deck with 5/4 x 6 Decking. Treated wood ballustrade all open sides. Includes treated wood steps w/ rail to rade. x150 Premium Landscape - Level 50 F $0.00 1 Include sabe English Garden Room F $19,690.00 1 $19,690.0 0 sak Sitting Room off of MBR - See F $3,360.00 1 _ $3,360.001 drawings for plan layouts. May _ include built-ins in some plans saq Bath 3 - Includes upgrading of F $3,180.00 1 $3,180.001 water heater to 75 gallon In ials Date Initials6? Date Selection Sheet {Rev. 01120/2005) ©2001-2003, G1440, Inc. P, Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 088/0000 Bu er Name: Ivey 0 c"i 6)de Deign on won CPt` U> Prue sau23 Conservatory #2- Brick (13x24)- F $43,450.00 Conservatory includes the w2 option to provide even temperatures in weather extremes; Level 10 Hardwood flooring; Brick from grade to sill on 3 sides; window units fit between cast moulded columns and cornice; Tray Ceiling #1; Full Basement under Conservatory. This Option is designed for the Living Side of a plan. Any other location needs to be submitted as a CCR. sax09 Add 1' Height to Bsmt Walls - F $0.00 Adds V to the overall height of a basement foundation wall. May not be combined with the sax10 option. sbj10 Master Bath - Alt Layout 10 - F $8,370.00 Design varies per plan. Reference plan for specific information sbp10 Bath 2 - Alt Layout 10 - Design F $0.00 varies per plan. Reference plan forspecific information s g20 2 Car Side Ent Garage F $0.00 sg30 3rd Car Addtn to Side Ent Grg - F $0.00 Typically adds 7' to front of garage. Adds (1) 16 wide overhead door ILO (1) 9 wide overhead door. Req's PLO Include or Buyer Selection of s g20. ska42 Hearth Kitchen - Cabinet F $9,360.00 configurations and appliance locations vary per plan. Appliance features: Dishwasher 80, SS Gas Cooktop 90, Vented Hood Assembly byCab. Supplier, Elect. Micro / Wall Oven Combo 80, Disposer 60. Other features: Gas Line to Cooktop, Ceramic Tile Lvl 50 behind Cookto . skw30 Laundry Room Layout 3 - Design F _ $16,140.00 varies per plan. Reference plan forspecific information tOh 1 "Pitcher" Handleset ILO Std F $0.00 - _]?W Initia ?.y? Dats Initials C6 +? Date Selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. 11 $43,450.00 I 11 Included 1 $8,370,00 1 Included 1 Included 1 , Included 1 $9,360.00 i 11 $16,140.00 Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hamoden Homesite: 088/0000 l( Buyer Name: Ive Code tOxb s ? Bilco Style Basement Door - Cofo U ?'?tce PrFCe Include steel insulated door unit in F $3,400.00 1 $3,400.00 basement wall; precast concrete stair unit; steel access door; switched weatherproof light inside of unit uxhw Add'I Wood Hopper Basement Wdw - Locate this additional F $260.Oq 4 $1,040.001 window on Brochure Drawing. Use of this option subject to Design considerations. vab Telephone Receptacle F $60 00 2 $120 vac Cable TV R t l . .00 v h ecep ac e F $60.00 2 $120 00 a Basement Rece title F $80.00 3 . $240 00 vbr Clg Fan/Braced Fit Box -RI- - This is Rough-In Only for a future F $100.00 3 , $30.00 Ceiling Fan Installation. Includes (1) Switch and Blank Cover for Ceiling Box. Ceiling connection box is braced for ceiling fan mounting vbsp2 Built-InSpeakers-Silver (1 Pr) a - F $500.00 1 $500 00 Includes (1) pair of speakers wired . in a single room to a common j location, a wall mount volume control in the same room and speaker housing. Note: Please indicate locations of speakers, location of volume control and whether speakers are ceiling mounted or wall mounted on Locator Drawing. Please indicate location of common signal source vbu10 Garage Door Opener w11 Remote F $0.00 1 Inc dl e vc 10 Ext Lam Post Light BrassGuard F $0.00 1 _ Included vf110 Light Fixture Pk - Silver F $0.00 1 Included vl Alarm System Complete - F $0.00 1 Included Standard system includes protection of all 1 st floor openings, 2 keypads, 16 zone master panel w50 Level 50 HVAC System F $0.00 1 Included x000K All Kohler/Sterling Plumbing - All F $0.00 1 ` Included Plumbing fixtures and faucets to be Kohler or Sterling, xaf35 KitchnFct-Extensa PI/Out Spray F $0-00 1 _ Include Inifigd?w Initials &JC Date 6-7?-06, Date f selection Sheet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 5 Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 08810000 Buyer Name: Ivey POP# CQd@ xribf E`1 Full Bath Bsmt - Rough In Only - IFt ?1'ft P? ' P?0 Includes risers for future F $1,050.00 1 $1,050.00, tub/shower, toilet and sink hook- ups tied in below the slab emptying into a sewage pit set into the slab. "This option j requires the purchase of at least 2 forms of basement egress,* xnim xx2co Ice Maker Line 2" Conduit - BSMT to ATTIC F $0.00 1 Incl ed F _ $0.00 1 Included , Ini .als Date 7_( rCl Initials` Date ?' a7 -C, aetecuon meet (Rev. 01/20/2005) ©2001-2003, G1440, Inc. Page 6 Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 0881000Q Buyer Name: Ivey Design Center Items u9n c . Cow Locon 1000. EXTERIOR 1010. Stone Shape --- Color --- Mortar 1020. Brick Color --- Mortar 1030. Accent Brick Color --- Mortar Color: Ben Franklin Brick w/ KLM Mortar _ j 1040. Stucco Color - -? 1050. Window Color Color: White -- -- - _-- 1060. Shutter Color 1070. Front Door Color Exterior / Interior 1072. Other Exterior Door Colors Color: ICI Paints; Stewart House Brown; 50YR 06/081 Color: ICI Paints; Stewart House Brown; 50YR 06/081 Color: To Match Siding - --"- 1074. Garage Door Color Color: To Match Siding --- _1 1080. Siding Color Color: Heritage Cream ----? 1090. Soffit /Fascia /Gutter Color Color; Frost --I , 1092. Specialty Roof Color -- - 1100. Downspout Color Color: Frost --- - ` I 1110. Stamped Concrete: Pattern --- Base Color ---Rls Agent Color - ? - 1120. INTERIOR -" - - 1130. Wall Color other than standard color -? -? 1140. Trim Color other than standard color 1150. Railing Stain color other than match hardwood -- - i 1160. Fireplace Surround: FR Color --- LR Color -- Other Color Color: Cream Marble - -j 1170. ROOM FINISHES ---- - - 1180. KIT/BP/FR -- -? 1190. KIT/BP/FR Cabinet Door Color: Ro alle ---- 1200. KIT/BP/FR Cabinet Wood Color: Maple; NaturalHearth Area Cabinets ONLY; Glacier White w/ Mocha Glaze 1210. KIT/BP/FR Optional Finish - 1220. KIT/BP/FR Hardware Color: C03 -- 1230. KIT/BP/FR Main C-To Type Color: Corian; Aurora _-? 1240. KIT/BP/FR Main C-To Color --- - --- 1250. KIT/BP/FR Accent C-To Type 1260. KIT/BP/FR Accent C-To Color - - - - -) 1270. KIT/BP/FR Sink Faucet Style 1280. KIT/BP/FR Faucet Finish Color: Coralais; Biscuit 1290. KIT/BP/FR Appliance Color Color: Stainless Steel 1 1300. KIT/BP/FR Fixture / Sink Color: W A B Color: Biscuit 1310. KIT/BP/FR Details: Glass Doors / pr --- Roll Out Shelves --- App Garage --- Waste Basket Color: Waste Basket Pullout ? 1320. MBATH -- "- - - 1330. MBATH Cabinet Door Color- Ro alle 1340.,MBATH Cabinet Wood _ 1350. MBATH Optional Finish Color: Maple; Natural -- -1 1360. MBATH Hardware Color: C17 1 v Initio l Date Initials(26e& Date Selection Sheet (Rev. 01/2012005) 02001-2003, G1440, Inc. Page 7 Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 088/0000 D-- L ---- ,- - 1370. MBATH Main C-To Type Color: Cult. Marble; White on White --- -"- 1380. MBATH Main C-To Color 1390. MBATH Sink Faucet Style Color: Devonshire; Polished Brass 1400. MBATH Faucet Finish - --- -- 1410. MBATH Shower/ Door Glass: C O Color: Clear 1420. MBATH Fixture /-Sink Color: W A B Color: Biscuit 1430. BATH 2 ----- 1440. BATH 2 Cabinet Door Color.- Ro alle - - ---I 1450. BATH 2 Cabinet Wood Color: Maple; Natural - - 1460. BATH 2 Optional Finish 1470. BATH 2 Hardware Color: C18 -----{ 1480. BATH 2 Main C-To Type Color: Cult. Marble; White on White --? 1490. BATH 2 Main C-To Color --? 1500- BATH 2 Sink Faucet Style Color: Standard; Chrome -? 1510. BATH 2 Faucet Finish { 1520. BATH 2 Shower / Door Glass: C O -? - 1530. BATH 2 Fixture / Sink Color: W A B Color: Biscuit -_ - 1540. BATH 3 ---- --{ 1550. BATH 3 Cabinet Door Color: Ro alle - - --- -1 1560. BATH 3 Cabinet Wood Color: Maple; Natural - - - 1570. BATH 3 Optional Finish - 1580. BATH 3 Hardware Color: 618 ---- ---? 1590. BATH 3 Main C-To Type 1600. BATH 3 Main C-To Color - Color: Cult. Marble; White on White ------ -_? -- 1610. BATH 3 Sink Faucet Style Color: Standard; Chrome --? 1620. BATH 3 Faucet Finish _ --I i 1630. BATH 3 Shower /Door Glass: C O -- - ? 1640. BATH 3 Fixture / Sink Color: W A B Color: Biscuit -- -- i 1650. BATH 4 -- _ -j 1660. BATH 4 Cabinet Door - - --{ 1670. BATH 4 Cabinet Wood -- - -? 1680. BATH 4 Optional Finish - - -- 1690. BATH 4 Hardware -- -- ---+ 1700. BATH 4 Main C-To Type - 1710. BATH 4 Main C-To Color --? 1720. BATH 4 Sink Faucet Style 1730. BATH 4 Faucet Finish - - 1740. BATH 4 Shower / Door Glass: C O - 1750. BATH 4 Fixture / Sink Color: W A B - - 1760. POWDER 1770. POWDER Cabinet Door -- - -- --- ---? 1780. POWDER Cabinet Wood -- 1790. POWDER Optional Finish 1800. POWDER Hardware -- -- i 1810. POWDER Main C-To Type -- 1820. POWDER Main C-To Color ---- 1830. POWDER Sink Faucet Style 1840. POWDER Faucet Finish Color: Devonshire; Polished Brass 1850. POWDER Fixture / Sink Color: W A B Color: Biscuit J Initia ?l? -r Date L,` J Initials `? Date (e Selection Sheet (Rev. 01/20/2005) 02001-2003, G1440, Inc. Page 8 Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 08810000 Buyer Name: Ivey 1860. LAUNDRY -- --? 1870. LAUNDRY Cabinet Door Color: Ro alle 1880. LAUNDRY Cabinet Wood Color: Maple: Natural - 1890. LAUNDRY Optional Finish -? 1900. LAUNDRY Hardware Color: C03 -- - 1910. LAUNDRY Main C-To Type 1920. LAUNDRY Main C-To Color 1930. LAUNDRY Accent C-To Type Color: Wilsonart Laminate; Coral Roca 4839-38 -- i 1940. LAUNDRY Accent C-To Color 1950. LAUNDRY Sink Faucet Style Color: Standard; Chrome 1960. LAUNDRY Faucet Finish 1970. LAUNDRY Fixture / Sink Color: W A B Color: Biscuit 1980. MUD ROOM - - 1990. MUD ROOM Cabinet Door - ?I 2000. MUD ROOM Cabinet Wood -- - 2010. MUD ROOM Optional Finish ---- ?---I 2020. MUD ROOM Hardware 2030. STUDY - -- --j 2040. STUDY Cabinet Door 2050. STUDY Cabinet Wood 2060. STUDY Optional Finish 2070. STUDY Hardware 2080. ENTERTAINMENT CENTER ---- -- 2090. ENTERTAINMENT CENTER Cabinet Door - -- 2100. ENTERTAINMENT CENTER Cabinet Wood -i 2110. ENTERTAINMENT CENTER Optional Finish -- --. _.i 2120. ENTERTAINMENT CENTER Hardware 2130. LIGHTING Color: Standard BrassGUARD 2140. Breakfast: Model No. --- Finish -? 2150. Dining Room: Model No. --- Finish 2160. Foyer: Model No. --- Finish _- 2170. Powder Room: Model No. --- Finish 2180. Ext. Post Lam : Model No. --- Finish 2190. Ext. Front Door: Model No. --- Finish 2200. Ext. Other Door: Model No. --- Finish ? 2210. FLOORING -- 2220. Kitchen: Flooring Style --- Size/Color/Grout 2230. Kitchen: Hearth Tile 2240. Kitchen: Backs lash Color: Wood; Dundee; Natural Color: Selce; Terracotta SL53 6x6 with Sand Bei e Color: Tile; Selce; Yellow Mars SL52 6x6 with Saltillo Grout 2250. Break/Morning: Flooring Style --- Size/Color/Grout Color: Wood; Dundee; Natural ! 2260. Livin : Flooring Style --- Size/Color/Grout Color: Carpet; Georgian Ba ; Hone Cake 23211 2270. Dining/Formal: Flooring Style --- Size/Color/Grout Color: Wood; Dundee; Natural 2280. Fo er: Flooring Style --- Size/Color/Grout Color: Wood; Dundee; Natural _ Init Is ?,,.?V-I+ Date ^ 2'1- U ?J Initials ?L7??_ Date n----;7? -C1.4c Selection Sheet (Rev. 01120/2005) ©2001-2003, G1440, Inc. Page 9 Selection Sheet As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 088/0000 Buyer Name: Ivey 2290. Family/Great: Flooring Style --- Color: Carpet; Madness ZL210; Pat of Butter 00225 Size/Color/Grout 2300. Powder Room: Flooring Style --- Color: Wood; Dundee; Natural Size/Color/Grout 2310. Stud : Flooring Style --- Size/Color/Grout - - -- - 2320. Master BR: Flooring Style --- Color: Carpet; Georgian Bay; Honey Cake 23211 i Size/Color/Grout 2330. Master Bath: Flooring Style --- Color: Tile; Bella Vista; Light Noce; 12x12 w/ Almond Grout Size/Color/Grout 2340. Master Bath: Tub Tile Color: Tile; Bella Vista; Light Noce; 6x6 w/ Almond Grout and Accent Listello 2350. Master Sitting: Flooring Style --- - - Size/Color/Grout 2360. Bedroom 2: Flooring Style --- Color: Carpet; Georgian Bay; Honey Cake 23211 Size/Color/Grout j 2370. Bedroom 3: Flooring Style --- Color: Carpet; Georgian Bay; Honey Cake 23211 Size/Color/Grout 2380. Bedroom 4: Flooring Style --- - ,color: Carpet; Georgian Bay; Honey Cake; 23211 I Size/Color/Grout 2390. Bedroom 5: Flooring Style --- -- -- Size/Color/Grout i 2400. Bath 2: Flooring Style --- Color: Tile; French Provincial; Matte Finish; 12x12 w/ Almond Size/Color/Grout Grout 2410. Bath 3: Flooring Style --- Color: Tile; French Provincial; Matte Finish; 12x12 w/ Almond Size/Color/Grout Grout 2420. Bath 4 / PR2: Flooring Style --- - -- Size/Color/Grout 2430. Loft / Computer: Flooring Style --- Size/Color/Grout 2440. Flex Space: Flooring Style --= Color: Carpet; Georgian Bay; Honey Cake 23211 /Location: Game Size/Color/Grout Room 2450. Sunroom / Conservatory: Flooring Style - Color: Wood; Dundee; Natural -- Size/Color/Grout 2460. Mudroom: Flooring Style --- - j Size/Color/Grout 2470. Laundry: Flooring Style --- Color: Tile; Sierra Aspen 1525; 12x12 w/ Sand Beige Size/Color/Grout Grout/Location: Studio 2480. Garden Room: Flooring Style --- Color: Wood; Dundee; Natural -- Size/Color/Grout 2490. Main Stairwell: Flooring Style --- Color: Wood; Dundee; Natural/Location: 2nd Hallway; Carpet: Size/Color/Grout Georgian Ba ; Hone Cake 23211 j 2500. Basement Stairwell: Flooring Style --- -? Size/Color/Grout In .als Date --: Initials ??? Date Selection Sheet (Rev. 01/20/2005) 02001-2003, G1440, Inc. Page 10 r Selection Sheet t As of Change Order 6 Neighborhood: The Preserve at Hampden Homesite: 088/0000 Buyer Name: Ivey Earnest Deposits Eta 'co ted 06/09/2006 Aosouiat $10,000.00 F .` Check Check Kun*or. 1 Total Earnest Deposits: $10,000.00 -? Option Deposits Deposk Pjay d _ Ctreck Este Caifiected Aftio utit'' - LTYpe Nutt er ; Code C1 u on Am?u? No O tion Deposits have been collected for this configuration. Purchase Price Details Total: $0.00, Item Au?rt - Base Home Price $597,990.00 Lot Premium $15,000.00 Total Options Price $113,910.00 Total Purchase Price $726,900.00 Davidlvey Date SaIgs -J 7-O(o Carol Ivey 1 Date Seller Date I Ini als Date Initials Date Selection Sheet (Rev. 01/20/2005) 02001-2003, G1440, Inc. Page 11 ., RELEASE TO CONSTRUCTION AMENDMENT to NEW HOME PURCHASE AGREEMENT I dated the `7th day t.it June, 2006 for PROPERTY: 6120 Lo Cabin Trail Enola, PA 17025 --- __ SELLER: Charter Homes at The Preserve, Inc. _ + BUYER: David Ive and DATE OF AGREEMENT: 12th day of June, 2006 Buyer hereby removes any and all contingencies to this Agreement including, but not limited to, Mortgage Financing Contingency and/or Sale of Property Contingency. This Agreement is now NOT CONTINGENT on Buyer obtaining Mortgage financing, nor on the Sale and Settlement of Other Property, nor on any other condition. CONSTRUCTION. Seller will construct a Home on the Property in a good and workmanlike manner, substantially in accordance with the home plan and options as set forth on the FINAL SELECTION SHEET and ACCEPTED CHANGE AGREEMENTS attached to this Addendum. (The FINAL SELECTION SHEET supersedes and replaces all other or previous Selection Sheet(s) regarding this Property.) PURCHASE PRICE: In accordance with the FINAL SELECTION SHEET attached to this Addendum. the TOTAL, PURCHASE PRICE of the Property is, or is revised to EARNEST MONEY DEPOSITS A. Earnest Money Deposit(s) previously paid by Buyer: B. Total amount of OPTIONS as set forth on the FINAL SELECTION SHEET: C. Total amount of ACCEPTED CUSTOM CHANGES: D. (OPTIONS (B) less ACCEPTED CUSTOM CHANGES (C)] x 200/0 _ E. ACCEPTED CUSTOM CHANGES (C) x 50%= F. Buyer hereby deposits an additional non-refundable Earnest Money Deposit in an amount equal to the sum of the amounts set forth in sections D and E above to be held by Seller for the purposes set forth in this Agreement G. Total non-refundable Earnest Money Deposits paid by Buyer to date (A+F): $726,900.00 $10,000._00 $113,910.00 $ 0 - $ 22782.00 $22,782.00 $32,782.00 _ RELEASE TO CONSTRUCTION. Buyer and Seller hereby authorize and direct the construction of the Home on the Property in accordance with the terms of this Agreement. Because Seller will proceed with the preparation of construction drawings and will enter into agreements with, and issue purchase orders to, suppliers and subcontractors, and will obtain permits from all governmental entities having jurisdiction, all in reliance on this authorization and direction, Buyer(s) acknowledge that the items set forth on the attached FINAL SELECTION SHEET and ACCEPTED CHANCE AGREEMENTS may not be added to, canceled, nor changed or modified after the date of this Amendment. CONFIRMATION OF RECEIPT OF PROPERTY DOCUMENTS. Buyer hereby confirms that Buyer received all Property Documents (as defined in Section 5 of this Agreement) on or before twenty (20) days prior to the date of this Amendment (or, if checked here o, at this later date: ) and Buyer has reviewed, and understands all effects of, the Property Documents and all documents of record as identified in Section 5 of this Agreement. Except as modified by the foregoing, all other terms and conditions of this Agreement shall remain unchanged and of full force and effect. This Amendment is not binding tTHi i t by the President, a Vice President or Director of Homebuilding of , Charter Homes at The Preserve, Inc. I t-- V _ 1 BUYER 7_- ?.?*? ' BUYER Charter Homes at The Preserve, Inc., a Pennsylvania corporation By Assistant Vice President Ratified By Vice President or Director of I lonnebuildin ?nGib,+ J7 a facsimile transmittal P.O. Box 7274 Mechanicsburg, PA 17050 717-909-6602 fax 717-906-6606 To: Brian @ Charter Homes Fax: 717-728-0231 From: David Ivey Date: 10/16/06 Paaes: ? Please Comment ? Please Reply ? Please Recycle Hi Brian, . Please take note of the bulleted items below that we need to discuss: ? Timeline for construction of our home. It is approaching November and our home is not completely framed. With the framing crew off on Tuesdays and Thursdays how long is this going to take? By the way, contrary to your understanding, no one worked this past Saturday. With dosing some sixty +/- days away we need to structure and define the specific timeline. ? We are choosing the oval window that is used in the Avery (behind the conservatory) for the upstairs bedroom that faces the back yard. We want two windows placed in this room. Please let me know the reasonable cost and I will write you a check. They should fit as is. ? We want to put additional shutters on the house front windows outside the library and the dining room. ? We need to go over furnace placement. RE: Various items 10/16106 I ? We wish to put a more substantial garage door in. Please review with me. ? We need to talk about driveway configuration. We need to have a say in how it is placed. ? Let's set up a regular time to meet each week so that Carol and I can stay on top of all the details. Thanks for all of your efforts. Lets talk soon. Regards, Dave Ivey ?x ti? bit E r ?. 114 Foxshire Drive Lancaster, PA 17601 charterhomes.com • CHARTER Homes& Neighborhoods November 1, 2006 Mr. & Mrs. David Ivey 1009 Good Hope Road Mechanicsburg, PA 17050 Dear Mr. & Mrs. Ivey, T 717.560.1400 F 717.560.1138 Charter Homes & Neighborhoods is committed to providing excellent service and a great experience for our customers. We wanted to take this opportunity to communicate that there have been some recent personnel changes at Charter Homes & Neighborhoods. Please expect to hear from Greg Hodecker, your Director of Homebuilding, if you have not already, regarding any questions or concerns you may have. I assure you that we will make this change in personnel as seamless as possible. Your neighborhood building team is committed to working together to address your needs and concerns in the professional manner in which you deserve. Should you have any questions, please feel free to contact me at (717) 560-1400. Sincerely, CHARTER HOMES & NEIGHBORHOODS Jim Boyer Vice President . t of to VERIFICATION I, Carol L. Ivey, hereby verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: By'-7/- Carol. L. Ivey r, M VERIFICATION I, David W. Ivey, hereby verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: S?? Sti Q CLA SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-03740 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND IVEY DAVID ET AL VS CHARTER HOMES AT THE PRESERVE R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFEDNANT , to wit: CHARTER HOMES AT THE PRESERVE INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within COMPLAINT IN EQUITY On July 8th , 2008 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Lancaster Co 40.54 REAGER & ADLER So answers- Postage 3.72 81.26 07/08/2008 . Thomas Kline Sheriff of Cumberland County 7/15/0 I %' - Sworn and subscribe to before me this day of A. D. 16 SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 • (717) 299-8200 '32532 SHERIFF SERVICE P!OME T'AP OR, Paw L ILY PROCESS RECEIPT, and AFFIDAVIT OF RETURN D COMS. 1. PLAINTIFF/S/ 2. COURT NUMBER David & Carol Ivey 08-3740 civil 3. DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAINT Charter Homes At the Preserve, Inc. Complaint in Equity SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED Charter Homes at the Preserve, Inc. 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT 114 Foxshire Drive, Lancaster, PA 17601 7. INDICATE UNUSUAL SERVICE'Iff DEPUTIZE ? OTHER Cumberland Now, June 20 , I, SHERIFF OF COUNTY, PA., do hereby deputize the Sherriff of Lancaster County to execute this Writ an turn thereof In to law. This deputation being made at the request and risk of the plaintiff. - ` 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Ctmberland please serve the Complaint on the person in charge at the Defendant's place of business Please mail return of service to Cunberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part Qf such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sherries sale thereof. 9. S RE of A or then GRIGIRWOR 110. TELEPHONE NUMBER 11. DATE 717-763-1383 6/23/08 6/24/08F 12. S NOTICE OF RVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice Is to be mailed) ohn H. Pietrzak Reager & Adler, P.C. 2331 Market St., Camp Hill, PA 17011 _ SMC E LOW FOR USE OF SHERIFF ONLY - DO NOT WWM BELOW TMIS LW 13. 1 acknowledge receipt of the writ NAME of Authorized LCSO Deputy or Clerk 14. Date Received 15. Expiration/Hearing Date or complaint as indicated above.} JACKIEMICCICHE 7 -390-2309 6/26/08 7/24/08 16. 1 hereby CERTIFY and RETURN that 10 have personally served, ave legal evidence of service as shown in "Remarks:, ? have executed as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, company, cor- poration, etc., at the address inserted below by handing a TRUE and ATTESTED COPY thereof. 17. ? 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) 18. Name and title of individual served (if not shown above) (Relationship to Defendant) 19. ? No Service 7t:ln (3P+[.1- Q 14TWSAA,4 . See Remarks Below (No. 30) 20. Address of where served (compete only if different than shown above) (Street or RFD, Apartment No., City, Boro, Twp. 21. Date of Service 22. Time State and Zip Code) Ai ?-.??-off q:<a E ? 23. ATTEMPTS Df to Miles Dep. Int. Date Miles Dep. Int. Date Mlles Dep. Int. Date Mlles Dep. Int. Date Miles Dep. Int. ,/d r y?'1,44 24. Advance Costs 25. Service Costs 26. Notary Cert. 27. Mile ge/ ostage/ q, I 28. To till Costs _q 29. COIE 07rD C ? / R 11,141,31 150.00 36.50 ( 0,5 i U I cr } 30. REMARKS: S.T.A.: 31. AFFIRMED and subscribed to before me this Den. CL f J^ J(O (? K - r7 -711P 'vw""Np,Y' ;mayafu, f r f?ga!a _? i'Ift ?? oy'D,4, All ?i ?rF,??? t114 ?truYr? Ia- '.r ? ii''Cf ??11 y? ??'61 I1 }r ,I !?A? .91?' 1,1:6 f (} # (? e 1 r4KAiV 1144, y r "i ?Vrq ti?•r' ? I el rs[y ? `F r r ., iii r ?.; ,. r a. r,. 3 y e, :. ?. .?,. . ti r 1 =.: ::' WAN .?. J r < 'k9E - .3?: X7 itla"e a.{'- t Gak K'9t c tl ._.? o Y: t?k A I J + ( 4f., r f '^ 6 181 i ISM n! JS , i s I DAVID and CAROL IVEY, IN THE COURT OF COMMON PLEAS OF Husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-3740 CIVIL TERM ORIGINAL CHARTER HOMES AT THE PRESERVE , INC., Defendant PRELIMINARY OBJECTIONS OF CHARTER HOMES AT THE PRESERVE, INC. Charter Homes at The Preserve, Inc. ("Charter Homes") by and through its undersigned counsel, asserts preliminary objections to Plaintiffs' Complaint and states as follows: Factual and Procedural History 1. Plaintiffs initiated this action by filing a Complaint on June 24, 2008. 2. The Complaint alleges that Charter Homes and Plaintiffs were parties to a "New Home Purchase Agreement" (the "Agreement") by which Plaintiffs agreed to purchase Lot #88 in the Preserve and to have Charter Homes construct a home upon the lot. Complaint, ¶ 10. A copy of the Agreement is attached to the Complaint as Exhibit A. 3. The Complaint alleges that the Agreement was amended on or about June 22, 2006 and again amended on or about June 27, 2006. Copies of the documents amending the Agreement are attached to the Complaint as Exhibits B and C. 4. The Complaint further alleges that settlement on the lot and home occurred on December 29, 2006. Complaint, ¶ 27. 5. Plaintiffs complain that, after closing, they discovered that the boundary line between Lot 88 (which Plaintiffs purchased) and an adjacent lot, Lot 87, is not where Plaintiffs believed it to be. Complaint, ¶¶ 45 - 48. 6. Plaintiffs admit, however, that a survey commissioned by them confirmed that the boundaries of the lot Plaintiffs purchased are as set forth in the documents referenced on the deed for Lot #88. Complaint, IT 52-52. 7. The Complaint asserts the following causes of action: Count I Reformation of Deed; Count II Rescission (in the alternative); Count III Equitable Estoppel (in the alternative); Count IV Violation of the Unfair Trade Practices and Consumer Protection Act (in the alternative); and Count V Trespass - Violation of the Storm Water Management Act. I. Preliminary Objection Pursuant to Pa. R. Civ. P. 1028(a)(4): Legal Insufficiency (Demurrer) - Count I 8. Charter Homes incorporates paragraphs one (1) through seven (7) above. 9. Count I of the Complaint asserts that there was a mutual mistake by Plaintiffs and Charter Homes as to the boundaries of Lot #88 at the time that Lot #88 was conveyed to Plaintiffs by Charter Homes. Complaint, ¶¶ 65, 66. 10. Plaintiffs allege mutual mistake based upon certain alleged oral representations made, by Charter Homes' agents, regarding the boundaries of Lot #88. Complaint, ¶¶ 21, 27. 11. Count I of the Complaint requests that the Court reform the deed from Charter Homes to Plaintiffs so that the deed conveys a portion of Lot 87 to Plaintiffs. 2 12. The Agreement of Sale between Charter Homes and Plaintiffs stated that the real estate which Plaintiffs agreed to purchase was "Lot #88, in The Preserve" and referenced the documents filed of record that established The Preserve. Complaint, Ex. A, at p. 1. 13. The Agreement stated that The Preserve is subject to the provisions of all documents of record, including recorded Subdivision Plans. Complaint, Ex. A, at ¶ 6. 14. By signing the Agreement, Plaintiffs acknowledged that they had had the opportunity to understand all the "documents of record" relating to The Preserve. The Agreement further stated that "Buyer acknowledges that Buyer has had the opportunity to understand all of the provisions of the Property Documents and all other documents of record...." Complaint, Ex. A, at ¶ 6. 15. The Agreement further provided as follows: No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. Seller is not responsible or liable for any agreement, condition, or stipulation not specifically set forth in this Agreement. 16. The deed conveying Lot #88 from Charter Homes to Plaintiff (the "Deed") was recorded on January 8, 2008 at Cumberland County Recorder of Deeds Book 278, Page 1479. A true and correct copy of the Deed is attached hereto at Tab 1. 17. The Deed specifies that the real property being conveyed to Plaintiffs was: Lot 88 in The Preserve, a Planned Community as established by the filing of the Declaration of Covenants, Restrictions, Easement and Establishment of Homeowners Association for The Preserve, a Planned Community in Hampden Township, Cumberland County, Pennsylvania Misc. Book 705, Page 4220; and First Amendment in Misc. Book 713, Page 2593, (referencing Subdivision Plan recorded in Plan Book 88, Page 76; Plat recorded in right-of-way Plan Book 13, Page 54; Plan in Plan Book 89, Page 101, Plat recorded in right-of-way Plan Book 13, Page 76); and Plan in Plan Book 90, Page 101, as amended. 18. The recorded Deed and Subdivision Plan make clear that the lot being sold to Plaintiffs was defined in a recorded subdivision plan. 19. The Subdivision Plan recorded in Plan Book 90, Page 101 on April 7, 2008 includes pages showing the boundaries and dimensions of Lot 88. The complete copy of the Subdivision Plan recorded at Cumberland County Recorder of Deeds Plan Book 90, Page 101 is incorporated herein by reference. A true and correct copy of the portions of the recorded Subdivision Plan (not to scale) showing Lot 88 of The Preserve are attached hereto at Tab 2. 20. The Subdivision Plan recorded in Plan Book 90, Page 101 was recommended for approval by the Hampden Township Planning Commission and was approved by the Hampden Township Board of Commissions. 21. The recorded Subdivision Plan specifically notes that the rear property boundary for Lot #88 is 110.8 feet, and it shows that the front property line is an arc that measures, according to the scale provided, 135 feet. 22. The Agreement of Sale (attached to Plaintiffs' Complaint as Exhibit A) and the recorded Deed and Subdivision Plan contradict Plaintiffs' allegation that that Deed contains a mutual mistake. 23. Under these circumstances, Plaintiffs' Complaint fails to assert a legally sufficient basis for the Court to reform the Deed. 4 WHEREFORE, Count I of the Complaint must be dismissed as legally insufficient. II. Preliminary Objection Pursuant to Pa. R. Civ. P. 1028(a)(4): Legal Insufficiency (Demurrer) - Count III ' 24. Charter Homes incorporates paragraphs one (1) through twenty-three (23) above. 25. The Agreement of Sale and Subdivision Plan referenced therein notified Plaintiffs of the boundaries and dimensions of Lot #88, which they contracted to purchase. 26. The documents attached to Plaintiffs' Complaint contradict their assertions that Plaintiffs were mistaken about right side boundary line and dimensions of Lot #88. 27. The documents attached to Plaintiffs' Complaint contradict their assertions that Plaintiffs reasonably relied on any misrepresentations concerning the property line. 28. Plaintiffs' Complaint fails to state a legally sufficient claim for equitable estoppel. WHEREFORE, Count III of the Complaint must be dismissed as legally insufficient. MCNEES WALLACE & NURICK LLC By Kimberly M. Colonna I.D. No. 80362 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Tel. 717-237-5278 Dated: July 29, 2008 5 ,JA .a. V J PREPARED BY: Regent Settlements, L.P. 114 Foxshire Drive, Lancaster, PA 17601 RECORD AND RETURN TO. Regent Settlements, L.P. 114 Foxshire Drive, Lancaster, PA 17601 Account Number: 10-12-2983-060 File No. 06-233960 •t. 2001 aN 8 RM 8 40 This Indenture, Made the 29th day of December, 206. Between CHARTER HOMES AT THE PRESERVE, INC., A PENNSYLVANIA CORPORATION (hereinafter called the Grantor), of the one part, and DAVID W. IVEY and CAROL L. IVEY, HUSBAND AND WIFE (hereinafter called the Grantees), of the other part, WitneSSeth That the said Grantor for and in consideration of the sum of SEVEN HUNDRED TWENTY SEVEN THOUSAND SEVEN HUNDRED DOLLARS 06!100 ($727,70.0) lawful money of the United States of America, unto it well and truly paid by the said Grantees, at or before the sealing and delivery hereof, the receipt whereof is hereby acimowledged, has granted, bargained and sold, released and confirmed, and by these presents does grant, bargain and sell, release and confirm unto the said Grantees, as tenants by the entireties, their heirs and assigns, ALL THAT CERTAIN parcel of real property, situate in Hampden Township, County of Cumberland. Commonwealth of Pennsylvania, being: Unit: Lot 88 in The Preserve, a Planned Community as established by the filing of the Declaration of Covenants, Restrictions, Easement and Establishment of Homeowners Association for The Preserves, a Planned Community in Hampden Township, Cumberland County. Pennsylvania as recorded In the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Misc. Book 705, Pape 4220; and First Amendment in Misc. Book 713, Pape 2593, (referer>cing Subdivision Plan recorded in Plan Book 88, Page 76; Plat recorded in right-of-way Plan Hook 13, Pape 54; Plan In Plan Book 89, Page 101; Plat recorded In right-of-way Plan Book 13, Page 76); and Plan in Plan Book 90, Page 101, as amended. BEING PART OF THE SAME PREMISES which Daniel F. Putt, Executor of the Last Will and Testament of Anna Mae Putt by deed dated January 30. 2004 and recorded January 30, 2004 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Deed Book 261, Page 2433, granted Boor 2.7 ":A473 . . and conveyed unto Charter Homes At The Preserve, Inc., a Pennsylvania Corporation, its successor's and assigns. AND BEING PART OF THE SAME PREMISES which Harold E. Coover and Lucy S. Coover, husband and wife by deed dated January 30, 2004 and recorded January 30, 2004 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Deed Book 261, Page 2440, granted and conveyed unto Charter Homes At The Preserve, Inc., its successors and assigns. Cumberland County Recorder of Deeds Instrument Filing Receiptl 641495 InstrN 2007-000703 1108/2007 09: :4' Remarks: CHARTER LAND IVEY DEED I DEED - WRIT 5C DEED - RTT STATE 7 CUWE1WD VALLEY HANG TDf NIP 5( DEED - A/H 1 5< J.C.S. / A.T.J. 1 01 CO IHPRDVEWIT FND 01 REC. IIIPW FUND 01 Check# 7192 17131 0 Check# 7193 51 C '?heckl17194 17,2 0 Total Received....... $1415 5 BOOK 278 °dGE? Together with all and singular the buildings improvements, ways, streets, alleys, driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever unto the hereby granted premises belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever of the said Grantor, as well at law as in equity, of, in and to the same. To have and to hold the said lot or piece of ground described hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said Grantees, their heirs and assigns, to and for the only proper use and behoof of the said Grantees, their heirs and assigns, forever. And the said Grantor, his heirs, executors and administrators do covenant, promise and agree, to and with the said Grantees, their heirs and assigns, by these presents, that the said Grantor and his heirs, all and singular the hcreditaments and premises hereby granted or mentioned and intended so to be, with appurtenances, unto the said Grantees, their heirs and assigns, against the said Grantor and their heirs, and against all and every person and persons whosoever lawfully claiming or to claim the same or any part thereof, by, from or under or any of them, shall and will SPECIALLY WARRANT and forever DEFEND. In Witness Whereof, the party of the first has part hereunto set its hand and seal. Dated the day and year first above written. Sealed and Delivered IN THE PRESENCE OF US: CHARTER OMES AT THE PRESERVE, INC. BY: {SEAL} R T C. RATHSAM, VICE PRESIDENT ATTEST: BY: {SEAL} ROB AM, ASSISTANT SECRETARY BOOK x78 PAGE f 481 Commonwealth of Pennsylvania County of Lancaster ss: On this the 29th day of December, 2066 before me, the undersigned Notary Public appeared -ROBERT C. RATHSAM, who acknowledged himself to be the VICE PRESIDENT of CHARTER HOMFS AT THE PRESERVE, INC., a corporation, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by himself as VICE PRESIDENT. I hereunto set my hand and official seal. 'Nbtary Public COMMONWEALTH OF PENNSYLVANIA My Commission Expires: Pub?e oew A. Parley, Ncwy MN*SknT*P•,Lam mew m * My ? Expires .k1y Member. Pennsylvania AssodatW Of NOW" The address of the above-named Grantees is: 6120 LOG CABIN TRAIL ENOLA, PA 17 On behalf of the Gran I Certify this to be recorded In Cumberland County PA f I " Recur:±er of D,vt tQ BOOK 278 F„sL1AW2 2 2065 9PR 7 Fil 3 25 FINAL SUBDIVISION PLAN PHASE 2 THE PRESERVE AN OPEN SPACE DEVELOPMENT BY CHARTER HOMES HAMPDEN TOWNSHIP CUMBERLAND COUNTY, PENNSYLVANIA 11111 PIAII 4 PNAR[ = N['1[ NIVIK'. $ M ¦IOROR NMO SIId'11111 b OOOMY 0 11 611 0 18 PRYIl01 w YNN O.M NMO. 00106 PWUNIT w 101 M .101 a aN[ t tw 0•i 110. I1a KQ N1uN K M'S1ATC MOMMY 1.w' K AVOIOfD n RMR 11i11RY 6 POY1101. TO 0111010 AN1 MAYMpNX2 V Oa /IIIAI MN OPW111 0 AXY MIOIMIIMT1111 PA001RS T@ 00011M)111 NLL N: 11t NOAOOI 9 >Z MORWTK COOINL M® 01 Aw 6 M f011M1. 11AA PLANO OOOLLMATR YMONIATM YO IWAM Mp.<rn n M wNAO1. ,nN ?reN1?T onn w P1PM[ NA1Ner AaRa 6 MA91 AT M MR A Asw PR OAEIM lN0 MYAOF IIPOM t K A ONORq Q OITAMNp K q.9MANCT POM ? 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N I W I , t niV: F SEAL N? we` y FNAL 9lEM PLAN -PHASE 2 ?e \ecr.+srt<RKEo y SUBDIVISION PLAN ppp?ESSML ?' fi ; p 'THE PRESERVE' JOHN K `UlURPH /L?H? c AN OPEN SPACE DEVELOPMENT BY CHARTER HOMES MWEp ALPHA CONBtUM 9l09EEPAN4 41o.43200-E HAMPDEN TOWNSHIP, CUMBERLAND COUNTY, PENHSYLVANU qF CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing document was served by U.S. mail, first class, postage prepaid, upon the following: Linus E. Fenicle, Esq. John H. Pietrzak, Esq. Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Kimberly . Colonna Dated: July 29, 2008 c" ; . -a c`j __, -;? r,." i , r_. ? , _.. ,-, _` - - ;? ? ,, t ,?, '- --. .._. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DAVID AND CAROL IVEY, Husband and wife vs. CHARTER HOMES AT THE PRESERVE, INC. No. 08-3740 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to the Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: John H. Pietrzak (Name and Address) Reager & Adler, 2331 Market Street, Camp Hill, PA 17011 (b) for defendants: Kimberly M. Colonna (Name and Address) McNees Wallace & Nurick LLC, P.O. Box 1166, Harrisburg, PA 17108 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date; September 3, 2008 /1Q Signa?t/ure ri-4'r? M. f a ?Onn a Print your name Defendant, Charter Homes at the Preserve, Inc Attorney for Date: July 31, 2008 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. t?? y .;? ? .. _? ?- ?; F`'' "? ?' ?; REAGER & ADLER, P.C. By: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: LFenicle ,ReagerAdlerPC.com By: John H. Pietrzak, Esquire Attorney I.D. No. 79538 Email: jvietrzak ,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiffs, David and Carol Ivey DAVID AND CAROL IVEY, Husband and wife, Plaintiffs V. CHARTER HOMES AT THE PRESERVE, INC., Defendant : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 08-3740 CIVIL TERM : Jury Trial Demanded PLAINTIFFS, DAVID AND CAROL IVEYS' ANSWER TO PRELIMINARY OBJECTIONS FILED BY DEFENDANT, CHARTER HOMES AT THE PRESERVE, INC. Admitted. 2. Denied as stated. The New Home Purchase Agreement between the parties is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the written terms of the New Home Purchase Agreement. 3. Denied as stated. The Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with averments set forth in the Complaint. 4. Denied as stated. The Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with averments set forth in the Complaint. Plaintiffs incorporate the averments of their Complaint by reference as if fully set forth herein at length. 5. Denied as stated. The Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with averments set forth in the Complaint. Plaintiffs incorporate the averments of their Complaint by reference as if fully set forth herein at length. By way of further answer, the averments of this paragraph misstate the Plaintiff's allegations in the Complaint. Approximately 15 months after closing on the sale of the Property, Defendant informed the Plaintiffs that Defendant had been mistaken about the location of the boundary between Lots 87 and 88. In April 2008, Defendant discovered that the many affirmative representations they made to the Plaintiffs regarding the location of the boundary did not conform to the boundaries set forth in the documents referenced in the deed prepared at closing. 6. Denied as stated. The Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with averments set forth in the Complaint. Plaintiffs incorporate the averments of their Complaint by reference as if fully set forth herein at length. By way of further answer, Plaintiffs admit that they commissioned a survey following Defendant's notification that the boundary line was not as Defendant had represented consistently throughout the process of planning and constructing Plaintiffs' home, installation of landscaping and for 15 months following closing. The survey did confirm that the boundary that Defendant claimed was correct as of April 2008 was the same as shown on the documents referenced in the deed for Lot 88, but that is was inconsistent with the boundary that Defendant had represented many times as being the correct boundary prior to, during and following the conveyance of the Property. 2 7. No response necessary. 1. Preliminary Objection Pursuant to Pa.RCiv.P.1028(a)(4) Legal Insufficiency (Demurrer) as to Count I 8. Plaintiffs incorporate paragraphs 1 through 7 of their Answer as if fully set forth herein. 9. Denied as stated. The Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with averments set forth in the Complaint. Plaintiffs incorporate the averments of their Complaint by reference as if fully set forth herein at length. 10. Denied as stated. The Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with averments set forth in the Complaint. Plaintiffs incorporate the averments of their Complaint by reference as if fully set forth herein at length. 11. Denied as stated. The Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with averments set forth in the Complaint. Plaintiffs incorporate the averments of their Complaint by reference as if fully set forth herein at length. 12. Denied as stated. The Agreement of Sale is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Agreement of Sale. 13. Denied as stated. The Agreement of Sale is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Agreement of Sale. 3 14. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant is referring to a portion of the written Agreement for Sale. The Agreement of Sale is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Agreement of Sale. 15. Denied. Defendant is referring to a portion of the written Agreement for Sale. The Agreement of Sale is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Agreement of Sale. 16. Admitted, upon information and belief. Plaintiffs acknowledge that Defendant has attached as Exhibit "A" to its Preliminary Objections, a document that purports to be a copy of the Deed for the Property. 17. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant is referring to a portion of the written Deed. The Deed is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Deed. 18. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant is referring to a portion of the written Deed. The Deed is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Deed. 19. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant is referring to a portion of the written recorded Subdivision Plan. The Subdivision Plan is a written document that speaks for itself. Plaintiffs deny the 4 factual averments of this paragraph to the extent that they are inconsistent with the contents of the Subdivision Plan. 20. Admitted, upon information and belief. 21. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant is referring to a portion of the written Subdivision Plan. The Subdivision Plan is a written document that speaks for itself. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Subdivision Plan. By way of further answer, it is not possible to determine the distance of the front property line of Lot 88 from Exhibit "B" to the Preliminary Objections, due to the fact that the attachment is not to scale. 22. Denied. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant represented by its words and actions from the time Defendant prepared for the construction of Plaintiffs' home, throughout construction and closing and for 15 months following closing, that the property line was other than as represented in the Deed and the documents referenced in the Deed, and that Defendant intended the property boundary to be consistent with its verbal representations and actions as more fully set forth in the Plaintiff's Complaint, which is incorporated herein by reference as if set forth at length. As stated in the Agreement of Sale, at paragraph 7, Defendant had the "sole right to make all decisions regarding the construction of the home and development of the Property." The description shown in the documents referenced in the Deed is not consistent with the property boundaries that the Defendant, as shown through its words and actions, intended to convey at closing, and is therefore mistaken. 5 23. This paragraph contains a legal conclusion to which no response is required. Plaintiff incorporates its Answer to Paragraph 22, above. WHEREFORE, Plaintiffs, David and Carol Ivey, respectfully request this Honorable Court to dismiss Defendant's First Preliminary Objection to Count I of the Complaint. II. Preliminary Objection Pursuant to Pa.R.Civ.P.1028(a)(4) Legal Insufficiency (Demurrer) as to Count III 24. Plaintiffs incorporate paragraphs 1 through 23 of their Answer as if fully set forth herein. 25. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant is referring to a portion of the written Agreement for Sale and the Subdivision Plans. The Agreement of Sale and Subdivision Plans are written documents that speak themselves. Plaintiffs deny the factual averments of this paragraph to the extent that they are inconsistent with the terms set forth in the Agreement of Sale and/or Subdivision Plans. 26. Denied. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant represented by its words and actions from the time Defendant prepared for the construction of Plaintiffs' home, throughout construction and closing and for 15 months following closing, that the property line was other than as represented in the Deed and the documents referenced in the Deed, and that Defendant intended the property boundary to be consistent with its verbal representations and actions as more fully set forth in the Plaintiff's Complaint, which is incorporated herein by reference as if set forth at length. Plaintiffs requested that Defendant affirmatively establish at the Property site where the property boundaries were located and Defendant did so. Plaintiffs believe that the correct Property boundaries are as Defendant represented and marked at the Property site during construction of 6 the Home, and that the Deed contains a mistake as it does not reflect the actual intent of the parties to convey the boundaries as established at the Property site. To the extent that Defendant misrepresented the actual location of the Property boundaries, Plaintiffs reasonably relied on Defendant's misrepresentations. 27. Denied. This paragraph contains a legal conclusion to which no response is required. By way of further answer, Defendant made numerous consistent representations to the Plaintiffs both before, during and after conveyance of the property, that the right side boundary of Lot 88 began at the right front corner where the stake was placed by the white mark on the curb and the curb cutout and extended along a line parallel to the driveway installed by Defendant to the corresponding right rear corner of the lot. Defendant further confirmed this as the proper right side boundary line when it installed trees, grading and grass along this line in January and April 2007, for the Plaintiffs' benefit. Plaintiffs reasonably relied on Defendant's representations concerning the placement of the right side boundary line of Lot # 88 and expended considerable money and effort placing improvements along the disputed property line. Defendant permitted Plaintiffs' reliance to continue for approximately 15 months after Defendant conveyed the property to Plaintiffs. Defendant is in the business of construction and real estate development. Plaintiffs are consumers and reasonably relied on Defendants misrepresentations concerning the location of the property line. Defendant was in possession of the information necessary to determine the proper property boundary line at all times since Plaintiffs first contacted Defendant in June 2006. Plaintiffs requested Defendant to definitively determine the proper boundary line from June 2006 through settlement on December 29, 2006 and relied upon Defendant's affirmative 7 representations as to the location of the Property boundary, including Defendant's placement of stakes at the Property. WHEREFORE, Plaintiffs David and Carol Ivey respectfully request this Honorable Court to dismiss Defendant's Second Preliminary Objection, to Count III of the Complaint. Respectfully Submitted, REAGER & ADLER, P.C. Date: August 15, 2008 14 /J6. J H. Pietrz , Esquire Attorney I.D. No. 79538 Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Attorneys for Plaintiffs. 8 VERIFICATION I, David W. Ivey, hereby verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: ` '`(J VERIFICATION I, Carol L. Ivey, hereby verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: By: eC Atl t' Carol. L. Ivey F CERTIFICATE OF SERVICE AND NOW, this 15th day of August, 2008, I hereby verify that I have this day caused a true and correct copy of the foregoing document to be served via first class mail, postage prepaid, and addressed as follows: Charter Homes at the Preserve, Inc. c/o Kimberly M. Colonna, Esquire McNees Wallace & Nurick, LLC 100 Pine St. P.O. Box 1166 Harrisburg, PA 17108-1166 REAGER & ADLER. PC Jo . Pietrzak, Esquire u r rTl c Ul DAVID and CAROL : IN THE COURT OF COMMON PLEAS OF IVEY, Husband and Wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION CHARTER HOMES AT THE PRESERVE, INC., Defendant : NO. 08-3740 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE HESS, OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 6 h day of October, 2008, upon consideration of the Preliminary Objections of Charter Homes at the Preserve, Inc., to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. ZLinus E. Fenicle, Esq. John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorneys for Plaintiffs AKimberly M. Colonna, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant es ehtz (LL r iolz?? BY THE COURT, Jr esley O er Jr., J. +? J §j inn nj DAVID and CAROL : IN THE COURT OF COMMON PLEAS OF IVEY, Husband and Wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CHARTER HOMES AT THE PRESERVE, INC., Defendant CIVIL ACTION NO. 08-3740 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE HESS, OLER and EBERT, JJ. OPINION and ORDER OF COURT OLER, J., October 6, 2008. In this equity action, purchasers of real estate have sued a selleribuilder as the result of an alleged deficit in the amount of land conveyed to them.' Included in the complaint are counts (a) seeking reformation of the deed of conveyance2 and (b) based upon equitable estoppel.3 Defendant has filed preliminary objections in the nature of demurrers to these counts.4 The matter was argued on September 3, 2008. For the reasons stated in this opinion, Defendant's preliminary objections will be denied. STATEMENT OF FACTS For present purposes, the facts alleged in Plaintiffs' complaint may be summarized as follows: Plaintiffs are David Ivey and Carol Ivey, husband and wife, who reside in Enola, Cumberland County, Pennsylvania.5 Defendant is ' Plaintiffs' Complaint in Equity, filed June 24, 2008. 2 Plaintiffs' Complaint in Equity, Count I (Reformation of Deed). 3 Plaintiffs' Complaint in Equity, Count III (Equitable Estoppel). 4 Preliminary Objections of Charter Homes at the Preserve, Inc., filed July 30, 2008. 5 Plaintiffs' Complaint in Equity, para. 1. Charter Homes at the Preserve, Inc., a corporation having an office in Lancaster, Lancaster County, Pennsylvania.b Defendant, as the owner of subdivided land in Hampden Township, Cumberland County, Pennsylvania, known as the Preserve, convinced Plaintiffs to purchase Lot No. 88 on the plan for purposes of building a home, to be constructed by Defendant, on it.8 Both Defendant and Plaintiffs were under the impression, and Defendant so indicated to Plaintiffs, that the right property line of the land to be acquired by Plaintiffs was about four feet to the right of the point indicated on the recorded plan at the front of the lot and about fourteen feet to the right of the point indicated on the plan at the rear of the lot.9 The agreement of sale executed by the parties for the sale of the land and construction of the home referred to the subdivision plan,10 contained an integration clause," l and provided for a purchase price of about $700,000.00.12 Construction was undertaken in accordance with the parties' mutual mistake as to the right property line of the property,13 and Plaintiffs have expended various sums in reliance upon the boundary's location as represented by Defendant. 14 About a year and a half after the conveyance of the subdivision lot and home,15 Defendant 6 Plaintiffs' Complaint in Equity, para. 2. ' Plaintiffs' Complaint in Equity, Exhibit A. 8 Plaintiffs' Complaint in Equity, paras. 3-4, 10. 9 Plaintiffs' Complaint in Equity, paras. 6, 15-17, 21-22, 26-27, 41, 53. 10 Plaintiffs' Complaint in Equity, Exhibit A. 11 Plaintiffs' Complaint in Equity, Exhibit A. 12 Plaintiffs' Complaint in Equity, Exhibit A. The price was later increased to $726,900.00. Id., para. 13. 13 Plaintiffs' Complaint in Equity, paras. 14-17, 21, 27-35. 14 Plaintiffs' Complaint in Equity, paras. 31, 42. 15 Plaintiffs' Complaint in Equity, para. 42. 2 discovered its error and demanded that Plaintiffs remove various improvements from the area now in question. 16 Defendant's preliminary objections to Plaintiffs' complaint include as an attachment the deed of conveyance from Defendant to Plaintiffs." With respect to the property conveyed, the deed references the lot on the aforesaid subdivision plan. 18 DISCUSSION General rule as to demurrers. In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a pleading, the court "must accept all material facts set forth in the [pleading,] as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995) (citations omitted). A preliminary objection in the form of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that" the position challenged by the demurrer can not prevail. Id. at 489, 653 A.2d at 621. If any lingering doubt remains as to whether to sustain the demurrer, "this doubt should be resolved in favor of [the nonmoving party]." Presbyterian Medical Center v. Budd, 2003 PA Super 323, ¶6, 832 A.2d 1066, 1070 (2003). Reformation of deeds. "The law is well settled that a court of equity has the right to reform a deed where a mutual mistake appears." Kutztown Fair Ass'n v. Frey, 183 Pa. Super. 516, 520, 132 A.2d 912, 915 (1957). A mutual mistake occurs when the written instrument fails to properly set forth the "true" agreement among the parties. 19 16 Plaintiffs' Complaint in Equity, paras. 42, 49-50. 17 See Eckell v. Wilson, 409 Pa. Super. 132, n.1, 597 A.2d 696, 701 n.1 (1991); Preliminary Objections of Charter Homes at the Preserve, Inc., Tab 1. 18 Prehinary Objections of Charter Homes at the Preserve, Inc., Tab 1. 19 Daddona v. Thorpe, 2000 PA Super 75, ¶44, 749 A.2d 475, 487. 3 "The right to such reformation may be enforced even though it necessarily be an invasion or limitation of the parol evidence rule." Kutztown Fair Ass'n v. Frey, 183 Pa. Super. 516, 521, 132 A.2d 912, 915 (1957). Where a written agreement does not express the actual intention of the parties, the fact that it contains an integration clause will not prevent its reformation by a court of equity. Voracek v. Crown Castle USA, Inc., 2006 PA Super 232, 907 A.2d 1105. Although parol evidence generally cannot be introduced to change the terms of a writing which contains an integration clause because such a clause is intended to represent the complete expression of the parties' agreement, ... extrinsic evidence is admissible for the purpose of showing that by reason of mistake, fraud or accident, the written instrument does not express the actual intention of the parties 20 Thus, in Kutztown Fair Ass'n v. Frey, 183 Pa. Super. 516, 132 A.2d 912 (1957), the Pennsylvania Superior Court affirmed a decree of a lower court reforming a deed description at the request of a seller of land, based upon the following facts: ... In July of 1950, the Freys, appellants, were the owners of land on the east side of College Boulevard in the Borough of Kutztown, Pennsylvania, on which there was erected an apartment house building and a gasoline service station. The Farmers' Bank of Kutztown owned a tract of land with 4 1/2 foot frontage on College Boulevard advoining appellants' premises immediately to the north and the Kutztown Fair Association, Inc., appellee, owned a large tract of land on the east side of College Boulevard immediately adjoining the 4 1/2 foot frontage of the Farmers' Bank to the north thereof. Sometime prior to July 14, 1950, Henry W. Frey, one of the appellants, spoke to one of the officers of the bank concerning the possibility of purchasing a rectangular tract with a frontage on College Boulevard of 34 1/2 feet and a depth of 180 feet. On July 14, 1950, the appellee appointed Elmer Kline (deceased before time of trial), Howard Kutz and Claude Bordner as a committee to discuss the proposed transfer with the appellants. Three or four days after their appointment the three members of the committee met upon the ground itself and discussed the proposed transfer with one of the appellants, Henry W. Frey. The rectangular tract which appellants desired to purchase would have interfered with an existing road on the fair grounds and the committee suggested that Frey receive a total frontage of 46 1/2 feet on College Boulevard and a rear width of 10 1/2 feet. The proposed line was 20 Voracek v. Crown Castle USA, Inc., 2006 PA Super 232, % 907 A.2d 1105, 1107 (citations omitted). 4 measured with a steel tape and actually staked out upon the ground itself in the presence of Frey, who, after considerable discussion, agreed with the proposed plan. This was testified to by Bordner and Kutz, the two surviving members of the committee. On July 24, 1950, Frey gave to the Farmers' Bank of Kutztown his check to its order in the sum of $340. On the face of the check was written `Fair Ground Plot 34 1/2 X 180.' Mr. Fisher, the officer of the bank, testified as to the following conversation with Frey: `* * * The only thing I know the Committee told me that Mr. Frey would have to accept it the way the committee decided before the check would pass, and he said, `Well, then, let it go through,' and handed me the check. I had handed it back and he gave it back again.' Thereafter, before the fair, held in the third week of August, appellee erected along the diagonal boundary line, as staked out by its committee in the presence of Frey, a heavy wire fence. Frey was around when the fence was being erected and did not object. The fence remained in place until several weeks prior to the hearing on August 4, 1955, when Frey tore part of it down and erected another fence. On April 17, 1951, the committee made its report to appellee's board, stating therein that it agreed with Frey that in addition to the 34 1/2 foot frontage he would have an additional 12 feet in frong and `he would allow us 24 ft. in back thus protecting our road.' The board, upon motion made and seconded, approved the action of the committee and approved the delivery of the deed to the Freys with the provision as stated by the committee. On April 18, 1951, a deed in fee simple was executed by the president and secretary of appellee to the Freys, conveying title to a tract of land along the east side of College Boulevard with a frontage of 34 1/2 feet on College Boulevard and a depth of equal width of 180 feet. The deed was prepared by James F. Marx, Esquire, from a description left with him at his office either by Elmer Kline, deceased at the time of trial, or one of the appellants, Henry W. Frey. In March 1952 appellee caused a survey of its land to be made and on June 25, 1952, Marx had a conversation with Frey calling his attention to the mistake in the description and Frey stated it would cost about a thousand dollars to correct the situation. Marx testified that he had no knowledge of the minutes of the association when he drafted the deed in April of 1951. Id. at 518-19, 132 A.2d at 913-14. The facts in Kutztown are sufficiently analogous to those alleged in Plaintiffs' complaint to regard the decision as controlling on the issue of whether it can be said with certainty that Plaintiffs can not recover on their claim for reformation of their deed on the basis of a mutual mistake. For this reason, Defendant's preliminary objection in the nature of a demurrer to Count I of Plaintiffs' complaint will be denied.21 21 In this regard, the court is unable to agree with Defendant's position that the case of McCoy v. Home Ins. Co., 170 Pa. Super. 38, 84 A.2d 249 (1951) compels a different result. See 5 Equitable estoppel. "[T]he elements of estoppel are 1) misleading words, conduct, or silence by the party against whom the estoppel is asserted; 2) unambiguous proof of reasonable reliance upon the misrepresentation by the party asserting the estoppel; and 3) the lack of a duty to inquire on the party asserting the estoppel." Chester Extended Care Center v. Commonwealth of Pennsylvania, Department of Public Welfare, 526 Pa. 350, 355, 586 A.2d 379, 382 (1991). In Chester, the Pennsylvania Commonwealth Court held that a nursing home's reliance on the representations of government agencies that services to Medicare patients would be reimbursed was unreasonable, where the representations were not compatible with statute, as a consequence of which an estoppel defense advanced by the nursing home to an action for recovery of such reimbursements was rejected. Chester Extended Care Center v. Commonwealth of Pennsylvania, Department of Public Welfare, 122 Pa. Commw. 207, 551 A.2d 1138 (1988). On appeal, the Pennsylvania Supreme Court, without dissent, reversed, noting as follows: These agencies by their conduct lulled appellant into the false belief that appellant's participation in the Medical Assistance programs was not in jeopardy, so long as appellant continued to comply with the terms of [a] settlement [agreement] reached between appellant and DOH in March of 1984. Appellant did comply with the terms of the settlement. Under these circumstances, it would be unconscionable to require appellant, after fully cooperating with the agencies responsible for knowing the law and seeing Defendant's Brief in Support of the Preliminary Objections of Charter Homes at the Preserve, Inc., at 9. McCoy, for present purposes, stands for the proposition that "[w]here there is an inconsistency between averments in a complaint and documents attached thereto the latter prevail." Id. at 42, 84 A.2d at 251. In the present case, the agreement of sale attached to Plaintiffs' complaint, which Defendant argues is inconsistent with a claim of mutual mistake as to the deed, is, like the deed, representative of the alleged mistake rather than inconsistent with it. Similarly, Defendant's argument that Plaintiffs' claim for reformation based upon a mutual mistake must fail because of the illegality that would result from the creation of a conveyance inconsistent with the subdivision plan is, in the court's view, premature at best. See Defendant's Brief in Support of the Preliminary Objections of Charter Homes at the Preserve, Inc., at 11. It is not, at this preliminary stage of the case, clear that Defendant should be presumed powerless to cure the alleged illegality and, to the extent that Defendant's position on this point implicates the principle that equity should not decree an illegal act, the point is in the nature of an affirmative defense, to be pled in its answer to the complaint. See Pa. R.C.P. 1030(a). 6 that the law is obeyed, to pay back the funds that were provided for the care of patients who cannot pay for appellant's services. Although it is the general rule that estoppel against the government will not lie where the acts of its agents are in violation of positive law, ... this rule cannot be slavishly applied where doing so would result in a fundamental injustice. Chester Extended Care Center v. Commonwealth of Pennsylvania, Department of Public Welfare, 526 Pa. 350, 356-57, 586 A.2d 379, 382-83 (1991). In the present case, although it can certainly be argued that Plaintiffs acted unreasonably in failing to verify Defendant's alleged representations as to the boundaries of the land which it proposed to convey to Plaintiffs by scrutinizing the recorded subdivision plan in question, it can not be said as a matter of law that such reliance was unreasonable on the basis of the present limited record. Consequently, Defendant's preliminary objection in the nature of a demurrer to Count III of Plaintiffs' complaint will also be denied. ORDER OF COURT AND NOW, this 6t' day of October, 2008, upon consideration of the Preliminary Objections of Charter Homes at the Preserve, Inc., to Plaintiffs complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, s/ J. Wesler Oler, Jr. J. Wesley Oler, Jr., J. Linus E. Fenicle, Esq. John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorneys for Plaintiffs Kimberly M. Colonna, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant 7 I DAVID and CAROL IVEY, Husband and wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-3740 CIVIL TERM CHARTER HOMES AT THE PRESERVE, : INC., Defendant ANSWER, NEW MATTER, and COUNTERCLAIM OF CHARTER HOMES AT THE PRESERVE, INC. Charter Homes at The Preserve, Inc. ("Charter Homes") by and through its undersigned counsel, states the following for its Answer, New Matter and Counterclaim: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted in part and denied in part. Charter Homes admits that Plaintiffs met with Meredith Distefano, a Charter Homes sales representative and admits that Plaintiffs purchased Lot #88 in the Preserve, a planned residential community. Charter Homes denies the remaining allegations of this paragraph. 4. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had discussions with Meredith Distefano regarding the home they wished to build in The Preserve. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 1 ' 5. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. 6. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. 7. Admitted. 8. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 9. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. 10. Admitted. 11. Denied as stated. The Agreement is a document that speaks for itself. 12. Admitted in part and denied in part. Charter Homes admits that Plaintiffs executed an addendum to the Agreement and admits that the addendum is attached to the Complaint as Exhibit B. The addendum to the Agreement is a writing that speaks for itself. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 2 13. Admitted in part and denied in part. Charter Homes admits that Plaintiffs executed a second addendum to the Agreement and admits that the second addendum is attached to the Complaint as Exhibit C. The addendum to the Agreement is a writing that speaks for itself. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 14. Admitted in part and denied in part. Charter Homes admits that it informally staked out some parts of the foot print of the house as a service to the Plaintiffs, prior to the time that the house was staked out by the surveyor. Charter Homes admits that the house was staked out by the surveyor approximately 35 feet from the property line and admits that Charter Home broke ground several days later. Charter Homes admits that Brian Temple was the Neighborhood Builder and that Matt Tenny was the Team Builder for Charter Homes. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home. 15. Denied. Charter Homes denies that it placed a white stake to mark the front corner of the property and denies any implication that a white mark on the curbing marked the right front corner of the property. By way of further answer, the surveyors contracted by Charter Homes' to stake the lots in The Preserve marked the property corners with rebar pins, and oak witness stakes with orange ribbon. 16. Denied. Charter Homes denies the allegations of this paragraph and denies the implication that the end of the sidewalk signified the right front corner of Lot #88's boundary. 3 By way of further answer, the sidewalk was installed to form roughly uniform rectangles, and the end of the sidewalk did not line up with the corner of Lot #88. Further answering, when the adjacent lot is vacant, Charter Homes' practice is to extend the sidewalk past the lot line in order to avoid having to enter onto a sold lot in order to continue the sidewalk. 17. Denied. Charter Homes denies each and very allegations of this paragraph. By way of further answer, the surveyors contracted by Charter Homes' to stake the lots in The Preserve marked the property corners with rebar pins, and oak witness stakes with orange ribbon. The corners of Lot #88 were marked in this manner on August 25, 2006. 18. Admitted in part and denied in part. Charter Homes admits that Plaintiffs sent a fax to Brian Temple and admits that the fax is attached to the Complaint as Exhibit D. The fax communication is a document that speaks for itself. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home and the location of the driveway. 19. Admitted in part denied in part. Charter Homes admits that it sent a letter to Plaintiffs on November 1, 2006, and admits that the letter is attached to the Complaint as Exhibit E. Charter Homes denies the remaining allegations of this paragraph. The letter is a document that speaks for itself. 20. Admitted in part and denied in part. Charter Homes admits that Trey McDonald was a team builder for Charter Homes in November 2006. After reasonable investigation, 4 Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 21. Admitted in part and denied in part. Charter Homes admits that Dwight Ashley and Trey McDonald were builders for Charter Homes during all or part of the time that Plaintiffs' Home was under construction. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Greg Hodecker was the Director of Homebuilding for Charter Homes, not a builder. Robert Malpass and Clay (last name unknown) were not Charter Homes' builders or employees; they were, upon information and belief, employees of the landscaping subcontractor. 22. Denied. After reasonable investigation, Charter Homes is unable to determine who Plaintiffs intend to reference by the term "Defendant's builders" so Charter Homes is unable to determine the truth of the allegations of this paragraph. The allegations are, therefore, denied. By way of further answer, the written Agreement contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 23. Admitted in part and denied in part. Charter Homes admits, upon information and belief, that Plaintiffs obtained a copy of the Build Plan from Hampden Township on or around December 26, 2006. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so they are denied. By way of further answer, the Build Plan was reviewed with Plaintiffs by Charter Homes in the summer of 2006. Further answering, in the Agreement they executed in June 2006, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. The sewer easement was depicted on the recorded subdivision plan for The Preserve. 24. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, in the Agreement they executed in June 2006, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. The sewer easement was depicted on the recorded subdivision plan for The Preserve. 25. Admitted in part and denied in part. Charter Homes admits that Plaintiffs contacted Lori King and asked about the sewer easement. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. the sewer easement was depicted on the recorded subdivision plan for The Preserve. 26. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in the written Agreement which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 27. Admitted in part and denied in part. Charter Homes admits that settlement on Plaintiffs' home occurred on December 29, 2006, and that the home was not completed at the time of closing. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 6 28. Denied. Charter Homes denies the allegations of this paragraph. The property lines for Lot #88 are as defined in the recorded documents creating The Preserve. 29. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so those allegations are denied. By way of further answer, Charter Homes acknowledges that there were communications between it and Plaintiffs regarding the placement of trees and landscaping on Lot #88. 30. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so those allegations are denied. 31. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the two trees that were part of the landscaping package provided by Defendant were to be planted in the front yard. When the landscaper arrived to plant the trees, Plaintiff told the landscaper not to plant the trees in the front yard and directed the landscaper where to plant the trees. 32. Admitted in part and denied in part. Charter Homes admits that final grading and planting of grass were performed in the spring of 2007. Charter Homes denies any implication that the grading and planting of grass were an indication of the property boundaries. 33. Admitted in part and denied in part. Charter Homes admits, upon information and belief, that Plaintiffs consulted the Build Plan for their Lot. Charter Homes denies the remaining allegations of this paragraph. The Build Plan is a document that speaks for itself. 7 34. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had the driveway extended. Charter Homes denies the remaining allegations of this paragraph. 35. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had a flowerbed and patio installed. Charter Homes denies the remaining allegations of this paragraph. 36. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 37. Admitted. 38. Admitted in part and denied in part. Charter Homes admits that Lot #87 is narrower than Lot #88. Charter Homes denies the remaining averments of this paragraph. 39. Denied. After reasonable investigation, Charter Homes lack sufficient information and knowledge to determine the truth of the allegations of this paragraph, so the allegations are denied. 40. Admitted with clarification. Charter Homes admits that, at times, the site plan showed Lot #87 as having a spec house. By way of further answer, the site plan was updated to reflect the fact that parties had purchased the lot and had chosen a home to build on it. 41. Denied. Charter Homes denies each and every allegation of this paragraph. 42. Admitted with clarification. Charter Homes admits that it informed Plaintiffs that the trees that Plaintiffs had directed to be planted to the side of their house, and portions of the patio and driveway extension were not on Plaintiffs' property but were on Lot #87. 8 43. Admitted in part and denied in part. Charter Homes admits that, in or around April 2008, Mike Baran showed Plaintiffs the pins marking the boundaries of Lot #88. Charter Homes denies that it was unwilling or unable to located the pins prior to that time. By way of further answer, the rebar pins marking the property corners were installed by the surveyor on August 25, 2006. 44. Admitted in part and denied in part. Charter Homes admits that, in or around April 2008, Mike Baran showed Plaintiffs the pins marking the boundaries of Lot #88. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the right front corner pin was pounded into the ground so that the top of the metal rebar was flush with subgrade, but below the topsoil and grass, as is customary practice by surveyors. 45. Admitted in part and denied in part. Charter Homes admits that the properly line for Lot #88 crosses at the apex of the original driveway and admits that a small portion of driveway extension installed by Plaintiffs is located on Lot #87. Charter Homes denies that this is a "new" property line. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve. 46. Admitted in part and denied in part. Charter Homes admits that there is no side yard between Plaintiffs' driveway and Lot #88. Charter Homes denies that there is a new property line. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve. 47. Admitted in part and denied in part. Charter Homes admits that the trees were located on Lot #87, rather than Lot #88. Charter Homes denies that there is a new property and denies that it planted the trees. By way of further answer, the trees were to be planted in the 9 front yard, but Plaintiffs directed the landscaper to plant the trees along the side of the house in the location where they were planted. Further answering, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve. 48. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 49. Admitted in part and denied in part. Charter Homes admits that after Plaintiffs refused Charter Homes' offer to move the trees at no cost to Plaintiffs, Charter Homes demanded that Plaintiffs remove the trees that were planted on Lot #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Charter Homes never agreed to include part of Lot #87 in the property purchased by Plaintiffs. The property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 50. Admitted in part and denied in part. Charter Homes admits that it demanded that Plaintiffs remove the portions of the patio, flowerbed, and driveway extension that infringed on Lot #87. Charter Homes denies that it has established a new property line. The property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 51. Admitted in part and denied in part. Charter Homes admits that Plaintiffs has moved the items, except for the portion of the driveway extension that infringes on Log #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the 10 property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 52. Admitted upon information and belief. 53. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 54. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. Charter Homes never had any intent to vary the boundaries of Lot #88 from the boundaries established in the recorded subdivision plan for The Preserve. 55. Denied. Charter Homes lacks sufficient information and knowledge to determine the truth of the allegations regarding the survey, so those allegations are denied. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home. 56. Admitted in part and denied in part. Charter Homes admits that it sited the home so that it did not interfere with the sewer easement. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, in the Agreement they executed in June 11 2006, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. The sewer easement was depicted on the recorded subdivision plan for The Preserve. 57. Denied. Charter Homes lacks sufficient information and knowledge to determine the truth of the allegations regarding the survey, so those allegations are denied. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home. 58. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. Count I - Reformation of Deed 59. Charter Homes incorporates herein by reference paragraphs 1 through 58 of its answer above. 60. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the deed conveyed Lot #88 to the Plaintiffs as that lot was previously defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 61. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause 12 providing that statements or dealings not set forth in the written document are not part of the parties' contract and further providing that Plaintiffs would be bound by the terms of all recorded documents affecting Lot #88. 62. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed exactly the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract and further providing that Plaintiffs would be bound by the terms of all recorded documents affecting Lot #88. 63. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract and further providing that Plaintiffs would be bound by the terms of all recorded documents affecting Lot #88. 64. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed 13 would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements, dealings, and representations not set forth in the in the written document are not part of the parties' contract. 65. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 66. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 67. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 68. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes 14 denies the allegations of this paragraph. Charter Homes specifically denies that it planted trees on Lot #87; Plaintiff directed the landscaper to plan the trees on Lot #87. Charter Homes denies that the planting of grass was indicative of the property boundary. By way of further answer, Plaintiffs agreed to purchase Lot #88 was that parcel was defined in the recorded subdivision plan for The Preserve. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 69. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 70. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 15 71. Admitted in part and denied in part. Charter Homes admits that the actual property line for Lot #88 crosses at the apex of Plaintiffs' driveway and admits that a small portion of the driveway extension installed by Plaintiffs is located on Lot #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 72. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had trees installed on Lot #87, instead of Lot #88. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 73. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 74. Admitted in part and denied in part. Charter Homes admits that it seeks to enforce the Agreement that was signed by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 16 75. Denied. Charter Homes denies the allegations of this paragraph. Charter Homes does not seek to alter the established property line for any reason. The property line for Lot #88 was established in the recorded subdivision plan for The Preserve. 76. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. WHEREFORE, Charter Homes requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count II - Recession (In the alternative) 77. Charter Homes incorporates herein by reference paragraphs 1 through 77 of its answer above. 78. Denied. Charter Homes denies that there was any mistake regarding the boundaries of Lot # 88. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 17 79. Denied. Charter Homes denies that there was any mutual mistake. The remaining averments of this paragraph constitute conclusions of law to which no response is required. 80. Denied. Charter Homes denies that there was any mutual mistake. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 81. Denied. Charter Homes denies that there was any mutual mistake. The remaining averments of this paragraph constitute conclusions of law to which no response is required. 82. Denied. Charter Homes denies that there was any mutual mistake and denies that it has failed to perform in accordance with the parties' agreement. By way of further answer, in accordance with the written Agreement, Charter Homes conveyed to Plaintiffs Lot #88 as defined in the recorded subdivision plan. 83. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 84. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph. Therefore, the allegations are denied. 18 85. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 86. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. WHEREFORE, Charter Home requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count III - Equitable Estoppel (In the alternative) 87. Charter Homes incorporates herein by reference paragraphs 1 through 86 of its answer above. 88. Denied. Charter Homes denies that it made such representations to Plaintiff. By way of further answer, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 89. Denied. Charter Homes denies that it planted trees across the side boundary of Lot #88 and denies that grading and planting of grass defined the boundary of the Lot #88. By way of further answer, the boundaries of Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written contract to be bound by the recorded documents affecting the property that they agreed to purchase. Further answering, the trees were to be planted in the front yard, but Plaintiffs directed the landscaper to plant the trees in a location that was part of Lot #87. 19 90. Admitted in part and denied in part. Charter Homes admits that it notified Plaintiffs that the property line was farther to the left than Plaintiffs believed it to be. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the boundaries of Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written contract to be bound by the recorded documents affecting the property that they agreed to purchase. 91. Denied. Charter Homes denies that it made any mistake as to the location of the boundary of Lot #88. By way of further answer, the boundaries of Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 92. Denied. Charter Homes denies that Plaintiffs reasonably relied on any representations that were not part of the written Agreement. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to any amounts expended by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 93. Denied. Charter Homes denies that it planted trees in the disputed area and denies that its grading and planting of grass defined the property boundary. 94. Admitted in part and denied in part. Charter Homes admits that Plaintiffs installed a driveway extension after they had taken possession of the property and admits that a portion of the driveway extension was installed on Lot #87. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the 20 allegations regarding expenses incurred by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. Charter Homes denies any implication that Plaintiffs should be compensated for installing the driveway extension outside the boundaries of Lot #88. 95. Admitted in part and denied in part. Charter Homes admits that Plaintiffs installed landscaping and a patio. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations regarding expenses incurred by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. Charter Homes denies any implication that Plaintiffs should be compensated for installing landscaping and a patio outside of the boundaries of Lot #88. 96. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs and denies that Plaintiffs reasonably relied on any representations that were not part of the written Agreement. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 97. Denied. Charter Homes denies Plaintiffs reasonably relied on any representations that were nor part of the written Agreement and denies that it allowed Plaintiffs reliance to continue for any period of time. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 98. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 21 99. Admitted in part and denied in part. Charter Homes admits that it demanded that Plaintiffs remove the trees, patio, shrubs, and driveway extension that had been placed on Lot #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs directed the landscaper to plant the trees on Lot #87, rather than in the front yard as planned by Charter Homes. Further answering, Charter Homes offered to move the plantings at no cost to Plaintiffs, but Plaintiffs' declined. 100. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs. The remaining averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 101. Admitted. 102. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs and denies that Plaintiffs reasonably relied on any representations that were not part of the Agreement. The remaining averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 103. Admitted with clarification. Charter Homes admits that it was in possession of information showing the property lines for Lot #88. By way of clarification, the information was also available to Plaintiffs. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. 22 104. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. WHEREFORE, Charter Home requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count IV - UTPCPL (In the alternative) 105. Charter Homes incorporates herein by reference paragraphs 1 through 104 of its answer above. 106. Denied. Charter Homes denies that it engaged in fraudulent conduct that created a likelihood of confusion and misunderstanding on the part of Plaintiffs. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. 107. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs regarding the location of the property boundaries of Lot #88. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 108. Denied. Charter Homes denies that it represented to Plaintiffs that there would be an adequate side yard between their driveway and Lot #87. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 23 109. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs and denies that the existence of a side yard along the driveway is a material term to the parties' agreement. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 110. Denied. Charter Homes denies that it knowingly or recklessly made false representations. 111. Admitted with clarification. Charter Homes admits that it was in possession of information showing the property lines for Lot #88. By way of clarification, the information was also available to Plaintiffs. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. 112. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs in order to induce Plaintiffs to rely on them. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 113. Denied. Charter Homes denies that Plaintiffs reasonably or justifiably relied on any representations that were not set forth in the written Agreement. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 114. Denied. Charter Homes denies that Plaintiffs have suffered any injury or damage. 115. Denied. Charter Homes denies that Plaintiffs have suffered any injury or damage. 24 116. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. WHEREFORE, Charter Home requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count V - Trespass /Violation of Storm Water Management Act 117. Charter Homes incorporates herein by reference paragraphs 1 through 116 of its answer above. 118. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 119. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 120. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 121. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary 25 between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 122. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 123. Admitted in part and denied in part. Charter Homes admits that Plaintiffs have complained about storm runoff. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 124. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 125. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 126. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 127. Denied. Charter Homes denies that it has altered the flow of surface water so that storm water runoff flows onto Plaintiffs' property and denies that Plaintiffs have been damaged. 26 By way of further answer, any changes in surface flow of water resulting from Charter Homes' construction activities have been made in accordance with approved plans and are subject to governmental oversight. 128. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. By way of further answer, any changes in surface flow of water resulting from Charter Homes' construction activities have been made in accordance with approved plans and are subject to governmental oversight. 129. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. By way of further answer, any changes in surface flow of water resulting from Charter Homes' construction activities have been made in accordance with approved plans and are subject to governmental oversight. To the extent that Charter Homes was notified by any government agency that it was in noncompliance, Charter Homes has remedied any deficiencies. 130. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 131. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 132. Denied. Charter Homes denies that Plaintiffs have suffered or are suffering any harm as a result of Charter Homes' actions. By way of further answer, Charter Homes was 27 unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 133. Denied. Charter Homes denies that Plaintiffs have suffered any harm. The remaining averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. WHEREFORE, Charter Home request that the Court enter judgment in its favor and against Plaintiffs and award Charter Homes its costs of suit. NEW MATTER Defendant Charter Homes states the following new matter in response to Plaintiffs' Complaint: 134. Plaintiffs have failed to state a claim upon which relief can be granted. 135. Plaintiffs' claims are insufficient under the terms of the written New Home Purchase Agreement (the "Agreement") which they executed. A true and correct copy of the Agreement is attached as Exhibit A to Plaintiffs' Complaint. 136. The Agreement provides that Plaintiffs would purchase "Lot 88, in The Preserve." Ex. A., p. 1. 137. The Agreement also provides as follows: RECEIPT AND ACKMNOWLEDGMENT OF DOCUMENTS AFFECTING PROPERTY OWNERSHP. Buyer acknowledges that Buy has received, or will receive, on or before thirty (30) days after the Agreement Date of this Agreement, the following documents and information regarding ownership of the Property: The Public Offering Statement applicable to the Property, including copies of the Declaration, as amended, and the actual or proposed budget and homeowner assessments of The Preserve Neighborhood Association ("Property Documents"). Property ownership in The Preserve is subject to the provisions of 28 all documents of record including but not limited to, the recorded Declaration, as amended, and the recorded Subdivision plan(s) referenced in the Public Offering Statement). Buyer shall notify Seller in writing if Buyer has not received the Property Documents on or before thirty (30) days after the Agreement Date and the absence of such notice, on or before forty (40) days after the Agreement Date, shall be conclusive proof of the receipt by Buyer of the Property Documents on or before thirty (30) days after the Agreement Date. Buyer acknowledges that Buyer has had the opportunity to understand all of the provisions of the Property Documents and all other documents of record (including, but not limited to, easement and restrictions encumbering the Property and its use, covenants running with the land, and obligation which attach to Property ownership); Buyer acknowledges that the Property will be conveyed to Buyer subject to all of the rights and duties as established by documents of record; and Buyer agrees to accept the responsibilities of ownership as stated in all documents of record. Ex. A, p. 2. 138. The Agreement provides that "Seller will have the sole right to make all decision regarding the construction of the Home and development of the Property...." Ex. A, p. 2. 139. The Agreement provides as follows: ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer regarding the subject matter of this Agreement and there are no other terms, obligations, covenant, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this transaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, amending, adding to or changing the terms of this Agreement. No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. Seller is not responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, their respective heirs, personal representatives, successors and assigns. 29 Ex. A, p. 5. 140. Plaintiffs' damages, if any, are the result of Plaintiffs' own actions or inactions. COUNTERCLAIMS Defendant/Counterclaim-Plaintiff Charter Homes states the following for its claims against Plaintiffs/Counterclaim-Defendants David and Carol Ivey: 141. On June 23, 2006, David and Carol Ivey (the "Iveys") executed a New Home Purchase Agreement with Charter Homes at The Preserve, Inc. A true and correct copy of the Agreement is attached to Plaintiffs Complaint as Exhibit A. 142. The Agreement provides that the Iveys agreed to purchase and Charter Homes agreed to sell "Lot 88, in The Preserve" and a home to be constructed thereon. Ex. A., p. 1. 143. The Agreement also provided as follows: RECEIPT AND ACKMNOWLEDGMENT OF DOCUMENTS AFFECTING PROPERTY OWNERSHP. Buyer acknowledges that Buy has received, or will receive, on or before thirty (30) days after the Agreement Date of this Agreement, the following documents and information regarding ownership of the Property: The Public Offering Statement applicable to the Property, including copies of the Declaration, as amended, and the actual or proposed budget and homeowner assessments of The Preserve Neighborhood Association ("Property Documents"). Property ownership in The Preserve is subject to the provisions of all documents of record including but not limited to, the recorded Declaration, as amended, and the recorded Subdivision plan(s) referenced in the Public Offering Statement). Buyer shall notify Seller in writing if Buyer has not received the Property Documents on or before thirty (30) days after the Agreement Date and the absence of such notice, on or before forty (40) days after the Agreement Date, shall be conclusive proof of the receipt by Buyer of the Property Documents on or before thirty (30) days after the Agreement Date. Buyer acknowledges that Buyer has had the opportunity to understand all of the provisions of the Property Documents and all other documents of record (including, but not 30 limited to, easement and restrictions encumbering the Property and its use, covenants running with the land, and obligation which attach to Property ownership); Buyer acknowledges that the Property will be conveyed to Buyer subject to all of the rights and duties as established by documents of record; and Buyer agrees to accept the responsibilities of ownership as stated in all documents of record. Ex. A, p. 2. 144. The Agreement provides that "Seller will have the sole right to make all decision regarding the construction of the Home and development of the Property...." Ex. A, p. 2. 145. The Agreement provides as follows: ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer regarding the subject matter of this Agreement and there are no other terms, obligations, covenant, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this transaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, amending, adding to or changing the terms of this Agreement. No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. Seller is not responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, their respective heirs, personal representatives, successors and assigns. Ex. A, p. 5. 146. Charter Homes constructed the home on Lot #88 in accordance with the terms of the Agreement. 147. The Iveys closed on the purchase of Lot #88 and the home built thereon in late December 2006. 31 148. A deed conveying Lot #88 in The Preserve from Charter Homes to the Iveys (the Deed") was recorded on January 8, 2007 at Cumberland County Deed Book 278, Page 1479. A true and correct copy of the Deed is attached hereto as Exhibit 2. 149. After closing, the Iveys directed the installation of landscaping, a patio, and a large driveway expansion at their home, but portions of the landscaping, patio, and driveway expansion crossed the boundary of Lot #88 and encroached on Lot #87. 150. Upon information and belief, the Iveys obtained a professional survey of Lot #88, and the survey confirmed the boundaries of Lot #88 are as set forth in the recorded subdivision plan for The Preserve. 151. The Iveys have removed the landscaping and patio that encroached on Lot #87, but have not removed the portion of the driveway that encroached on Lot #87. 152. Contrary to the clear terms of the Agreement and the Deed pursuant to which they purchased Lot #88, the Iveys have asserted that they are entitled to title, ownership, and possession of a portion of Lot #87. Count I: Tortious Interference With Contract 153. Charter Homes incorporates herein by reference paragraphs 141 through 151 above. 154. On January 25, 2008, Charter Homes entered into a written contract to sell Lot #87 and a home to be constructed thereon, to Michael L. Rauco and Rhona N. Rauco. A true and correct copy of the written agreement between Charter Homes and the Raucos (the "Rauco Agreement") is attached hereto as Exhibit 1. 32 155. The settlement on the sale of Lot #87 and the home to the Raucos was scheduled to occur on August 23, 2008. 156. The Iveys' claims to a portion of Lot #87 have created a cloud on the title of Lot #87 and has therefore prevented Charter Homes from completing the sale to the Raucos. 157. Because Charter Homes was unable to transfer title to the Raucos, Charter Homes had no choice but to make arrangements to lease Lot #87 and the home to the Raucos, and Charter Homes has done so at significant cost. 158. Upon information and belief, the Iveys have asserted claims to title of a portion of Lot #87 with the intent to damage Charter Homes by interfering with the Rauco Agreement. 159. The Iveys' interference with Rauco Agreement is without justification or privilege. 160. Because of the Iveys' interference with the Rauco Agreement, the closing on the sale of Lot #87 has been delayed indefinitely causing damage to Charter Homes in expenses and lost profits. 161. If the Iveys' interference with the Rauco Agreement continues, the Raucos may refuse to close on Lot #87, resulting in further damage to Charter Homes. WHEREFORE, Charter Homes requests that judgment be entered in its favor and against the Iveys and that Charter Homes be awarded compensatory damages in an amount to be proved at trial but reasonably expected to exceed $75,000. Count II - Declaratory Judiment 162. Charter Homes incorporates herein by reference paragraph 141 through 161 above. 33 163. Title 42 Pa.C.S.A. § 7532 provides that courts have the power to declare rights, status, and legal relations between parties. 164. A dispute exists between the Iveys and Charter Homes regarding the boundaries of the property purchased by the Iveys. 165. The boundary between Lot #88 and Lot #87 was established by the recorded subdivision plan for The Preserve. 166. The Iveys assert that, pursuant to certain alleged oral representations and actions by Charter Homes and others, the boundary between Lot #88 and Lot #87 was established at a location farther to the East such that Lot #88 is wider than depicted on the recorded subdivision plan and Lot #87 as narrower than depicted on the recorded subdivision plan. 167. The Agreement between Charter Homes and the Iveys provides that oral representations or other dealings between Charter Homes and the Iveys do not modify the terms of the Agreement. 168. Accordingly, the Iveys are not entitled to title to any property other than Lot #88 as depicted on the recorded subdivision plan. 34 WHEREFORE, Charter Homes requests that judgment be entered in its favor and against the Iveys and that the Court declare that the Iveys possess title only to the land depicted as Lot #88 in the recorded subdivision plan for The Preserve. MCNEES WALLACE & NURICK LLC By Kim erl M. Colonna I.D. No. 80362 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Tel. 717-237-5278 Dated: October 27, 2008 35 VERIFICATION Subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities, I hereby certify that I am the Vice President of Charter Homes at The Preserve, Inc. and that I am authorized to make this verification on its behalf. I further certify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, or information and belief. CHARTER HOMES AT THE PRESERVE, INC. 4ames E. Brubaker Vice President October , 2008 NEW HOME PURCHASE AGREEMENT By this Agreement, dated the 25th dayof January, 2008 ("Agreement Date") Michael L Rauco and Rohna L Rauco (the "Buyer") with an address of 1711 Sawmill Road Greensburg. PA 15601 agrees to purchase and Charter Homes at The Preserve Inc a Pennsylvania corporation the "Seller") with an address of 114 Foxshire Drive Lancaster. PA 17601 agrees to sell Lot 87, in The Preserve, a Planned Community as established by the filing of the Declaration of Covenants, Restrictions, Easements and Establishment of Homeowners Association for The Preserve, a Planned Community in Hampden Township, Cumberland County. Pennsylvania ("Declaration") of record in the Office of the Recorder of deeds in and for Cumberland County, Pennsylvania in Miscellaneous Book 705, Page 421-0, as amended„ 6110 Log Cabin Trail Enola, PA 17025 (the "Property"), together with a Home, built or to be built by Seller in a good and workmanlike manner in accordance with the home plan and options as set forth on the SELECTION SHEET attached to this Agreement for the TOTAL PURCHASE PRICE of- ....... I ... I ........................................................................................................... 1. EARNEST MONEY DEPOSIT. To guarantee performance by Buyer of Buyer's obligations in this Agreement, Buyer has paid an Earnest Money Deposit in the amount of :............... to SELLER. Seller will hold and disburse the Earnest Money Deposit in accordance with all applicable laws. OPTION/CUSTOM CHANGE DEPOSITS. If Buyer changes or options are incorporated into the Home Buyer agrees to pay OPTION/CUSTOM CHANGE DEPOSITS to Seller As follows: a. Prior to or with this Agreement Buyer has paid .............................. $0.00 b. Buyer will pay OPTION/CUSTOM CHANGE DEPOSITS in accordance with the SELECTION SHEET and any CUSTOM CHANGE REQUESTS agreed to by Buyer and Seller. If Buyer does not complete Settlement for any reason (except default by Seller), the OPTION/CUSTOM CHANGE DEPOSITS will be retained by Seller, not as a penalty, but to reimburse Seller for the cost of CUSTOM CHANGE REQUESTS and/or OPTIONS incorporated into the Home. At Settlement, Seller will credit Buyer in the amount of the total of OPTION/CUSTOM CHANGE DEPOSITS paid by Buyer to Seller. 3. The RELEASE DATE is ........................................................................... 02/13/2008 The RELEASE DATE is that date on which all contingencies to this agreement will terminate. If Buyer does not complete and execute the SELECTION SHEET for the Home on the Property on or before the RELEASE DATE, Buyer will be in default of Buyer's obligations pursuant to the terms of this Agreement. 4. Subject to completion of construction of the Home by Seller in accordance with the terms of this Agreement, the estimated SETTLEMENT DATE is .................................................... August +/- 30 days Printed: 01/25/2008 I Initialsl"r„e Date ('. S'CV Initials Date I " 5. CONTINGENCIES Until, and only until, the RELEASE DATE, this Agreement is subject to the following CONTINGENCY(IES): NONE If any and all CONTINGENCIES are not satisfied on or before the RELEASE DATE: (1) either Buyer or Seller may terminate this Agreement in writing on or before the RELEASE DATE and, if so terminated, any Earnest Money Deposits and/or Option/custom Change Deposits paid by Buyer will be returned to Buyer and neither Buyer nor Seller will have any further obligations to the other under this Agreement, or (2) if this Agreement is not terminated in writing on or before the RELEASE DATE, all CONTINGENCIES will terminate on the RELEASE DATE and thereafter Seller and Buyer will be obligated to perform their respective obligations pursuant to the terms of this Agreement. Unless otherwise set forth in this Agreement, the failure by either party to perform any obligation hereunder shall constitute a default in the performance of this Agreement by such party. Buyer acknowledges that if Buyer secures a Mortgage Loan Commitment which is later withdrawn for failure to meet conditions of the commitment, such as failure to sell and/or to complete settlement on property which Buyer currently ewns, Buyer will still be obligated to complete Settlement. 6. RECEIPT AND ACKNOWLEDGMENT OF DOCUMENTS AFFECTING PROPERTY OWNERSHIP. Buyer acknowledges that Buyer has received, or will receive, on or before thirty (30) days after the Agreement Date of this Agreement, the following documents and information regarding ownership of the Property: The Public Offering Statement applicable to the Property, including copies of the Declaration, as amended, and the actual or proposed budget and homeowner assessments of The Preserve Neighborhood Association ("Property Documents"). Property ownership in The Preserve is subject to the provisions of all documents of record including, but not limited to, the recorded Declaration, as amended, and the recorded Subdivision plan(s) (referenced in the Public Offering Statement). Buyer shall notify Seller in writing if Buyer has not received the Property Documents on or before thirty (30) days after the Agreement Date and the absence of such notice, on or before forty (40) days after the Agreement Date, shall be conclusive proof of the receipt by Buyer of the Property Documents on or before thirty (30) days after the Agreement Date. Buyer acknowledges that Buyer has had the opportunity to understand all of the provisions of the Property Documents and all other documents of record (including, but not limited to, easements and restrictions encumbering the Property and its use, covenants running with the land, and obligations which attach to Property ownership); Buyer acknowledges that the Property will be conveyed to Buyer subject to all of the rights and duties as established by documents of record; and Buyer agrees to accept the responsibilities of ownership as stated in all documents of record. 7. CONSTRUCTION OF HOME. Seller will have the sole right to make all decisions regarding the construction of the Home and the development of the Property including, but not limited to, establishment of and changes in grade, removal of trees (if any are present), placement of utility lines and equipment, location and design of driveways, walks, landscaping and drainage (including swales), and all items of a similar nature. Seller shall solely determine which trees are to be removed for placement and construction of the home, driveway and other improvements, including access. Seller will not be required to restore any trees removed. Seller does not represent nor warrant that any existing trees will survive. Printed: 01/2512008 2 Initialsm-K-- Date Initials Date / - '?'$ 8. DESIGN IMPROVEMENTS. As part of a continuing program of home designs improvements, the Plans and Specifications are subject to change in accordance with any product changes provided to the Buyer and the terms of this Agreement. The Home may differ from any Model Home or information in sales materials (including brochures and displays) as a result of, but only as a result of, amendments or revisions to the Plans and Specifications and normal construction tolerances and variances. 9. FIXTURES NOT INCLUDED IN THE SALE. This sale and purchase does not include any furniture, furnishings, decorator wall and floor coverings, light fixtures, landscaping, and items of a similar nature unless specifically stated in the Specifications and/or on the SELECTION SHEET attached to this Agreement. 10. ACCESS TO PROPERTY. A HOME CONSTRUCTION SITE IS A HAZARDOUS AREA. If Buyer enters the Property prior to Settlement, Buyer agrees to indemnify and hold Seller harmless for any resulting bodily injury or property damage. IL NO UNAUTHORIZED WORK. Because the Property and the Home are property of the Seller until settlement, no unauthorized work may be done in the Home or on the Property. Unauthorized work done for or by Buyer will be removed by Seller, at the expense of the party who did, or attempted to do, unauthorized work. 12. LOSS PRIOR TO SETTLEMENT. Except for loss or damage resulting from Buyer entering the Property prior to Settlement, or resulting, directly or indirectly, from work by or for Buyer which Seller did not authorize, Seller will be responsible for any loss or damage to the Property prior to Settlement, 13. COMPLETION OF CONSTRUCTION. Settlement will occur, without holdback or escrow of any portion of the Purchase Price, when a Certificate of Occupancy or a Use and Occupancy Certificate is issued for the Home on the Property. A minor amount of work, not affecting the livability of the Home, may not be complete at time of Settlement. Seller will remain obligated to complete any such incomplete work following Settlement. If, because of incomplete work, Buyer's mortgage loan lender requires funds to be placed in escrow as a condition of providing mortgage financing, any such funds shall be provided by and deposited in such escrow by Buyer. 14. WARRANTY. Seller has provided to Buyer, prior to execution of this Agreement, Seller's warranty applicable to the construction of the Home ("Your Warranty" together with the "One Year Limited Warranty" and "Performance Standards" which are collectively referred to as the "New Home Warranty") contained within the "Post Settlement" portion of the Building Your New Home Manual. The terns and conditions of the "New Home Warranty" are incorporated in this Agreement by reference and made part of this Agreement. Buyer acknowledges that Buyer has read, understands, and agrees to the terms of the New Home Warranty including the waivers of implied warranties of habitability, reasonable workmanship, merchantability, and fitness for purpose. Buyer expressly acknowledges and agrees that Buyer accepts the New Home Warranty as a fair, complete, and clear warranty of the obligations of Seller for the improvement of the Property and the construction of the Home in accordance with the terms and conditions of this Agreement. Buyer accepts the New Home Warranty in satisfaction of, and in lieu of, any and all other warranty or warranties, whether express or implied, relating to the construction of the Home. There are no warranties which extend beyond the New Home Warranty contained within the "Post Settlement" portion of the Building Your New Home Manual. The dispute resolution provisions of this New Home Purchase Agreement as set forth in Section 25 of this New Home Purchase Agreement shall apply to and govern the determination and resolution of any and all disputes and/or claims pursuant to the terms of the New Home Warranty. The provisions of Section 25 of this New Home Purchase Agreement shall survive settlement of the purchase of the Property. Buyer Initials 15. NEW HOME ORIENTATION. Prior to Settlement, a representative of Vic Seller will go through the Home with Buyer, together with no more than one additional individual, for an Orientation of the Home at which time the Seller's representative will acquaint Buyer with the Home and its features, answer questions, and verify that the Home has been constructed in accordance with the terms of this Agreement. Printed: 01/25/2008 3 Initials?Me Date 1 26-08 Initial Date 7;; OQ 16, SETTLEMENT. The Settlement will be held within five (5) days after a Certificate of Occupancy, a Use and Occupancy Certificate or Permit, or other similar governmental approval of occupancy of the Home on the Property is granted ("Occupancy Approval"). Failure to settle within five days after notice from Seller to Buyer that Occupancy Approval has been obtained will constitute default by Buyer. At Settlement: a. Seller will convey title to and deliver possession of the Property to Buyer by a Special Warranty Deed, conveying good and marketable title (insurable by a licensed title insurance company), free and clear of all encumbrances and liens of record except easements, conditions, covenants and restrictions existing at the time of Settlement. b. Seller will provide any and all Certificate(s) of Occupancy or Use and Occupancy Certificate(s) which are required to be issued by any and all governmental entities having jurisdiction of such certificates c. All Transfer Taxes due on this sale and purchase will be paid one half (1/27) by Seller and one-half (1/27) by Buyer. Property taxes and homeowner association assessments, if any, affecting this Property will be pro rated, with each party paying such party's share. d. Seller will I) prepare the deed and any releases of mortgages, liens or judgments against the Property (Seller will not pay for the preparation of these documents by anyone else) and 2) pay for the recording of any such releases. e. Buyer will be responsible for and pay any charges of any mortgage lender providing funds to Buyer, any charges of the title insurer insuring Buyer's title (including title search, title insurance, endorsements, and any as-built or other survey), and any charges of the person or firm conducting Settlement (including costs of recording the deed and mortgage, any settlement fees and disbursement charges). 17. RELEASE OF LIENS. Seller will not be obligated to furnish any release of liens signed by the contractors, subcontractors or suppliers providing labor or materials for the construction of the Home. However, Seller represents and warrants to Buyer (and to any entity insuring Buyer's title to the Property) that no claims will be asserted against Buyer or the Property by any contractor, subcontractor or supplier with whom Seller has contracted and who has provided labor or materials for the construction of the Home; and this warranty shall remain the Seller's obligation after Settlement (survive Settlement) 18. RADON GAS. Seller makes no representation regarding the absence or presence of radon gas on the Property. Buyer agrees that Seller will not be responsible, now or in the future, for any costs associated with the testing and/or mitigation of radon, nor for any losses or claims, including injuries, which may arise from the presence of radon. 19. MOLD. Seller has provided Buyer (as a part of the "Building Your New Home" Manual in the section entitled "Special Conditions"), information regarding the occurrence of Mold in residential dwellings and has informed Buyer of Seller's construction procedures and specifications regarding mold avoidance. Buyer has reviewed Seller's mold avoidance construction procedures and specifications, and Buyer agrees that Seller will not be responsible for any damages caused by mold occurring on the Property, including but not be limited to property damage, personal injury, adverse health effects, and any consequential damage. 20. BUYER DEFAULT. SeIlees performance of Seller's obligations pursuant to the terms and conditions of Agreement are undertaken and performed in reliance upon the representations, warranties and covenants of Buyer set forth in this Agreement. The remedies of Seller for default by Buyer shall not, in any way, be limited and may include, but shall not in any way be limited to, retention of Earnest Money Deposits and Option/Custom Change Deposits paid to Seller as Liquidated Damages and not as a penalty. 21. SELLER DEFAULT. Seller will not be liable for delays or failure to perform this Agreement due to factors beyond 'Seller's control including, but not limited to force majeure, war, civil unrest, asserted but not adjudicated liens on, or impairments to, title (e.g., filed Mechanic's Lien, filed lis pendens), actual or economic unavailability of labor and/or materials or unavailability of land, site improvement work, utility services, or permits or approvals to be obtained by others. If the Home is not substantially complete within twelve (I2) months after the Release Date, Buyer may (but is not required to) terminate this Agreement In the event that this Agreement is terminated pursuant to the previous sentence, or if Seller defaults in Seller's obligations under this Agreement, all Earnest Money Deposits and Option/Custom Change Deposits, if any, will be returned to Buyer and Seller will pay to Buyer the amount of any mortgage or title costs which Buyer has incurred for this purchase including title insurance application, mortgage application, appraisal, and fees such as rate lock-in fee, and this Agreement will be void, and neither party will have any further obligation to the other. Buyer may not sue Seller for specific performance of Seller's obligations. Printed: 01/2512008 4 Initials Date / -W-LV Initials Date -a 22. TIME OF ESSENCE. Time is of the essence of all obligations of the parties to this Agreement. 23. NOTICES. Notices will be considered given upon delivery (provided a signed receipt or notarized affidavit of delivery is obtained if hand delivered or delivered by any delivery service) or three (3) days after deposit with the US Postal Service first class mail postage prepaid, return receipt requested, to the address of the recipient as stated in this Agreement. 24. ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer regarding the subject matter of this Agreement and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this transaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, amending, adding to or changing the terms of this Agreement. No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. Seller is not responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, their respective heirs, personal representatives, successors and assigns. 25. DISPUTE RESOLUTION. In the event of an unresolved dispute or a claim relating to this New Home Purchase Agreement, the rights and obligations hereto, or any other claims or causes of action relating to the performance of either party arising out of, or relating to, this Agreement or the breach thereof, either party may elect to submit the dispute or claim for decision in accordance with the construction Industry Arbitration Rules of the American Arbitration Association by filing notice of the demand for arbitration in writing with the other party to this Agreement and with the American Arbitration Association within a reasonable time after the dispute has arisen. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with the applicable law in any Court having jurisdiction thereof. Alternatively, either party may institute an action or proceeding in the Court of Common Pleas of the county in which the Property is located and in the event of such action or proceeding, the non-prevailing party in the adjudication of any Preliminary Objections, judgment on the pleadings or summary judgment (including partial summary judgment), shall pay the prevailing party's attorneys' costs incurred in litigating such Preliminary Objections, judgment on the pleadings or summary judgment. 26. REAL ESTATE BROKERS. DISCLOSURES REQUIRED PURSUANT TO REAL ESTATE LICENSING ACT AND REGULATIONS: Buyer is represented by a real estate licensee who is a Buyer Agent or a Designated Agent of a real estate firm acting as a Dual Agent. No real estate agent has any authority to act of behalf of the Seller. The real estate agent is required by Pennsylvania law to inform you that "any sales agreement must contain the zoning classification of a property except in cases where the property (or each parcel thereof, if subdividable) is zoned solely or primarily to permit single family dwellings" and "the failure of the agreement of sale to contain the zoning classification of the property shall render the agreement voidable at the option of the buyer and, if voided. deposits tendered by the Buyer shall be returned to the buyer without a requirement of court action." The Real Estate agent is also required by Pennsylvania law to advise you that "access to a public road may require issuance of a highway occupancy permit from the Department of Transportation." Seller will obtain any required highway occupancy permit as a part of the construction of the Home. A Real Estate Recovery Fund exists to reimburse any persons who have obtained a Final civil judgment against a Pennsylvania real estate licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exhausting all legal and equitable remedies. For complete details about this Fund, call (717) 783-3658. [Remainder of this page intentionally left blank] Printed: 01/25/2008 5 Initials JWf, Date "o Zs o Initials0 Date This Agreement is not binding on Seller until ratified by the President, a Vice President or the Director of Sales of Charter Homes at The Preserve, Inc. By signing this Agreement, BUYER agrees to be bound by the terms of this Agreement. BU. BUYER By signing this Agreement, SELLER agrees to be bound by the terms of this Agreement. Charter Ho at The Pr e, Inc., a Penns I ma orpo n y Assistant Vice President ed By Vice President or Dire for of Homebuilding Printed: 01/25/2008 6 Initials Date /- A$' 08 Initials Date Q F CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing document was served by U.S. mail, first class, postage prepaid, upon the following: Linus E. Fenicle, Esq. John H. Pietrzak, Esq. Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Kimberly A. Colonna Dated: October 27, 2008 t..? ..-? ., '3 _ ?...-t _?;J r ? .. ?..? , 'til .,, r . . 17 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DAVID AND CAROL IVEY, Husband and wife, Plaintiffs, vs. CHARTER HOMES AT THE PRESERVE, INC., Defendant No. 08-3740 civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Preliminary Objections to Count One of Defendant's Counterclaim 2. Identify all counsel who will argue cases: (a) for plaintiffs: Linus E. Fenicle, Esq. & John H. Pietrzak, Esq. Reager and Adler, pc 2331 Market St., Camp Hill,PA 17011 (Name and Address) (b) for defendants: Kimberly M. Collonna, Esq. McNees, Wallace & Nurick, LLC PO Box 1166 100 Pine S&NReale and Address) Harrisburg, PA 17108-1166 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Aroument Court Date: ---- Print your name Plaintiff November 1f, 2008 Attorney for Date: INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ionn n. rieurzaK, Esq. 9A Y n? ?t} REAGER & ADLER, P.C. By: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: LFenicle(kRea erAdlerPC.com By: John H. Pietrzak, Esquire Attorney I.D. No. 79538 Email: Jpietrzak gReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiffs, David and Carol Ivey DAVID AND CAROL IVEY, Husband and wife, Plaintiffs V. CHARTER HOMES AT THE PRESERVE, INC., Defendant : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 08-3740 CIVIL TERM : Jury Trial Demanded PLAINTIFFS, DAVID AND CAROL IVEY'S PRELIMINARY OBJECTIONS TO COUNT ONE OF DEFENDANT CHARTER HOMES AT THE PRESERVE, INC.'S COUNTERCLAIM David and Carol Ivey ("Plaintiffs"), by and through their undersigned counsel Reager & Adler, P.C., hereby file the following Preliminary Objections to the Counterclaim filed by Charter Homes at the Preserve, Inc. ("Defendant"), and in support thereof avers as follows: Procedural History Plaintiffs initiated this action by filing a Complaint on June 24, 2008. 2. Plaintiffs' Complaint set forth the following causes of action: Count Oile: Reformation of the Deed; Count Two: Rescission; Count Three: Equitable Estoppel (in the alternative) Count Four: Violation of the Unfair Trade Practices and Consumer Protection Act (in the alternative); and Count Five: Tresspass - Violation of the Storm Water Management Act. On July 29, 2008, Defendant filed preliminary objections to Counts One and Three of Plaintiffs' Complaint. 4. Following the filing of briefs and oral argument, the Court denied Defendant's Preliminary Objections in an Order and Opinion dated October 7, 2008. Defendant filed its Answer to Plaintiffs' Complaint on October 27, 2008, along with a New Matter and Counterclaim. 6. Defendant's Counterclaim contains two Counts. Count One states a claim of Tortious Interference with Contract; Count Two requests a Declaratory Judgment. 7. Defendant's Counterclaim identifies Michael and Rhona Rauco as the customers who are under contract with Defendant to purchase Lot # 87, which is adjacent to Plaintiffs' Lot # 88, and which is the subject of the property line dispute at issue in this matter. In its Counterclaim for tortious interference with contract, Defendant alleges, at paragraphs 158 and 159, that the Plaintiffs have asserted the claims set forth in their Complaint with the sole intent to "damage Charter Homes by interfering with the Rauco Agreement" and that the Plaintiffs' alleged interference with the Rauco Agreement is "without justification or privilege." 9. Defendant's Counterclaim alleges at paragraph 160 that settlement on Lot # 87 has been delayed due to the Plaintiffs' Complaint and that Defendant has suffered damages in the form of expenses and lost profits. 10. At Paragraph 161, Defendant alleges that due to the Plaintiffs' alleged interference, the Raucos "may refuse to close on Lot #87." (emphasis added). Statement of Facts 11. Plaintiffs Complaint contains a good faith claim asserting legal title to a disputed area of property that Plaintiffs contend is part of their Lot # 88 and Defendant claims is part of the 2 neighboring lot, Lot # 87. 12. Plaintiffs' Complaint sets forth a good faith claim for legal title to the disputed area of property based upon the Defendant's actions and representations that show Defendant intended to convey the disputed area of property to the Plaintiffs. 13. Prior to entering into the New Home Purchase Agreement (hereinafter the "Sales Agreement") with Defendant for the purchase Lot # 88 and construction of their home, Plaintiffs made clear to Defendant their requirement that the lot must have adequate side yards after construction of the home. 14. Plaintiffs also requested that the Defendant clearly identify the property boundaries of Lot # 88. Defendant was unable or unwilling to identify the property boundaries prior to execution of the Sales Agreement. 15. Plaintiffs executed the Sales Agreement with the Defendant on or about June 14, 2006. A copy of the Sales Agreement was attached to the Complaint as Exhibit A. 16. Under the terms of the Sales Agreement, Defendant retained sole ownership and control over Lot # 88 and the home to be built on this lot, until final settlement with Plaintiffs. 17. The parties amended the Sales Agreement on June 22, 2006 pursuant to Change Order No. 4 and again on June 27, 2006, pursuant to Change Order No. 6, both of which reflected design selections for the home. Copies of these change orders were attached to the Complaint as Exhibits B and C, respectively. 18. When Plaintiffs met with Defendant to go over the design selections, Plaintiffs again asked Defendant to identify the property boundaries of Lot # 88. This request was written on Change Order 4, which is Exhibit B to the Complaint. Defendant again failed to identify the property boundaries of Lot 88. 19. Defendant eventually placed a white wood stake marking the right front corner of Lot # 88. Defendant placed the stake next to a painted white mark on the curb that was also aligned with a split in the curbing. Defendant did not place any stake marking the right rear corner boundary of the lot, despite repeated requests from Plaintiffs that they do so. 20. Defendant installed the sidewalk at the front of Lot # 88. The sidewalk ended on the right side of the lot by lining up with the stake that Defendant had previously placed by the white mark on the curb, signifying the right front corner of Lot # 88's boundary. 21. From the time the home was being constructed through April 2007, Defendant's builders repeatedly represented that the right side property boundary extended to the rear of the property as a line, from the stake placed at the right front corner of Lot # 88, along a line parallel with the driveway to the back corner of the lot. 22. Plaintiffs settled on their home on December 29, 2006. During the orientation, Defendant again informed Plaintiffs that their right side property line extended from the stake placed at the right front corner, along a line parallel with their driveway to the back corner of the lot. This property line started approximately 4'6" from the right edge of the driveway, to the corresponding right rear corner of the lot. 23. Plaintiffs spoke to Defendant's Neighborhood Builder both prior to and after the December 29, 2006 settlement about placing trees along Lot # 88's right side property line. 24. In keeping with these discussions, during January 2007, Defendant planted two large trees within the area that Defendant had represented as the right-side boundary line of Lot # 88. These trees were part of the landscaping package provided by Defendant pursuant to the Sales Agreement and change order No. 6. 25. In April 2007, Defendant's landscaper performed final grading and planted grass 4 along the right-side boundary of Lot # 88. Again, Defendant performed grading and planted grass in an area consistent with that previously represented by Defendant to be within the right side boundary of Plaintiffs' lot. 26. In Spring 2007, the Plaintiffs consulted the lot grading requirements of Defendant's Build Plan, on file with and approved by Hampden Township, and confirmed that the right boundary line of Lot # 88 runs parallel to the driveway, and shows a side yard between the driveway and the boundary line. 27. Based upon the representations made by Defendant and after confirming that the Defendant's Build Plan shows that Lot # 88's property line runs parallel with the driveway installed by Defendant, Plaintiffs contracted with a paving company to have the driveway extended by approximately 26 feet towards the rear of the property, along the side of the home. 28. Plaintiffs also had a flowerbed and patio installed in the back yard within the area represented by Defendant as part of Lot # 88. 29. Approximately one year later, Defendant started preparations to build a house on Lot # 87, which is adjacent to Plaintiffs' Lot # 88, in March and April 2008. 30. On April 3, 2008, Defendant's Team Builder informed Plaintiffs that the Defendant had incorrectly marked the right side property line of Lot # 88 during construction of Plaintiffs' home and that the actual property line starts at the right front corner of the lot approximately four feet to the left of the previously marked stake and cuts negatively into Plaintiffs' lot to a point approximately 14 feet to the left of where'Defendant had previously represented the right rear lot boundary to be located. 31. Defendant informed the Plaintiffs that the trees Defendant planted along the right side of Lot # 88 as part of Plaintiffs' landscaping package, as well as other landscaping, Plaintiffs' patio and a portion of the driveway extension, were now across the property line onto Lot # 87. 32. Defendant first showed Plaintiff the right front property pin on April 3, 2008, which was located approximately 14 inches below the surface. 33. The new property line no longer runs parallel with Plaintiffs' driveway but instead cuts across the lot at an angle, so that the property line crosses exactly at the right apex of the original driveway and cuts diagonally across Plaintiffs' driveway extension. 34. Due to the new property line, Plaintiffs now have no side yard whatsoever between their driveway and Lot # 87. 35. Defendant demanded that Plaintiff remove the trees that Defendant planted in the area previously agreed by the parties to be part of Lot # 88 and that Plaintiffs remove the flowerbed and patio from their back yard, and remove a corner of the driveway extension, which are now across the new property line established by Defendant. 36. Plaintiffs have moved these items, while reserving their rights to take legal action. 37. Plaintiffs had Lot # 88 surveyed by CEDG Engineers (hereinafter "CEDG") on or about April 8, 2008, which confirmed that the property line as now asserted by Defendant is that which is set forth in the documents referenced on the deed for Lot # 88. 38. CEDG's survey established that the property line now asserted by the Defendant results in property boundaries with a frontage of 135 feet and a rear width of 110.8 feet instead of the boundaries previously represented by the Defendant, and as intended by the parties, with a frontage of 139.5 feet on the street and a rear width of 124.8 feet. 39. The Plaintiffs' Complaint alleges that the property line shown on the documents referenced in the deed is not that which the parties intended to be the property line during and after construction of the Plaintiffs' home and at the conveyance of the property from Defendant to 6 Plaintiff. 40. Pursuant to Pa.R.C.P. 1028(a), Plaintiffs David and Carol Ivey hereby file the following preliminary objections to the Counterclaim filed by Defendant Charter Homes at the Preserve, Inc. First Preliminary Objection as to Count One Pa.R.C.P. 1028(a)(4) - Legal Insufficiency of a Pleading (Demurrer) 41. Plaintiffs incorporate by reference paragraphs 1-40 above as though fully set forth herein at length. 42. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes the assertion of a Preliminary Objection as a demurrer for legal insufficiency of a pleading. 43. Count One of Defendant's Counterclaim purports to set forth a cause of action for tortious interference with contract. The elements of a cause of action for tortious interference with contractual relations are as follows: 1) The existence of a contractual or prospective contractual relation between the complainant and a third party; 2) Purposeful action on the part of the defendant specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; 3) The absence of privilege or justification on the part of the defendant; and 4) The occasioning of actual legal damage as a result of the defendant's conduct. See, Narducci v. Regis Development Corp., 2005 WL 1620379 (Pa.Com.Pl.), citing, Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 191 (Pa. Super. 1994). 44. A necessary element of Defendant Charter Homes' tortious interference with contract cause of action is that that Plaintiffs, the Iveys, have no privilege or justification for having filed their Complaint seeking to obtain title to the disputed area of property. 45. Any person is conditionally privileged to "disparage another person's property in land, chattels or intangible things `by an assertion of an inconsistent legally protected interest in himself... Narducci, 2005 WL 1620379, at 1, citing, Restatement of Torts 2d, § 647. 46. Plaintiffs, as a matter of law, enjoy a conditional privilege to question Defendant's right to the disputed area of property by filing a lawsuit that asserts an inconsistent legally protected interest in that same property. Narducci, at 1. 47. Plaintiffs have brought the claim set forth in their Complaint in order to assert their legal rights to the disputed area of property currently occupied by Defendants, which includes that part of Lot # 87 previously represented by Defendants to be a part of Plaintiff s property. 48. Plaintiffs are entitled to bring the claims set forth in their Complaint and therefore have the privilege and/or are justified in bringing these claims. 49. As such, Defendant has failed to set forth a valid cause of action for intentional interference with contract. WHEREFORE, Plaintiffs David and Carol Ivey respectfully submit that Count One of Defendant Charter Homes at the Preserve, Inc.'s Counterclaim must be dismisses as legally insufficient. Second Preliminary Objection as to Count One Pa.R.C.P. 1028(a)(4) - Legal Insufficiency of a Pleading (Demurrer) 50. Plaintiffs incorporate by reference paragraphs 1-49 above as though fully set forth herein at length. 51. A necessary element of Defendant Charter Home's tortious interference with contract cause of action is that Defendant has suffered actual damages as a result of Plaintiffs' alleged interference with the Raucos' contract. 52. Defendant states in paragraph 161 of its Counterclaim that because of the Plaintiffs' alleged interference, "the Raucos may refuse to close on Lot # 87." (emphasis added). 53. Defendant reference to the mere possibility that the Raucos may breach their contract at some unknown time in the future does not satisfy the element that the Defendant suffer actual legal damages. 54. The Defendant's damages therefore are entirely speculative. 55. Further, by operation of Defendant's sales agreement with the Raucos, should the Raucos fail to settle on the property in default of their agreement, Defendant is entitled to retain the Raucos' entire earnest money deposit (paragraph 20 of agreement) plus any deposit the Raucos made in connection with Custom Change Requests (paragraph three of agreement). Defendant's sales agreement with the Raucos was attached to Defendant's Answer with New Matter and Counterclaim, as Exhibit 1. 56. Defendant would therefore be compensated for the Raucos' breach and would not suffer any actual damages were the Raucos to breach their contract with the Defendants. 57. As such, Defendant has failed to set forth a valid cause of action for tortious interference with contract. WHEREFORE, Plaintiffs David and Carol Ivey respectfully submit that Count One of Defendant Charter Homes at the Preserve, Inc.'s Counterclaim must be dismisses as legally insufficient. Respectfully submitted, REAGER & ADLER, PC Date: November 14, 2008 By: l Jo Pietrzak, Esquire At my I.D. No. 79538 Attorneys for Plaintiffs David and Carol Ivey 9 CERTIFICATE OF SERVICE AND NOW, this 14th day of November, 2008, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: Kimberly M. Colonna, Esq. McNees Wallace & Nurick, LLC P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 REAGER & ADLER, PC J H. Pietrzak c? ..,. ^?. -4 . " .' '"?? l` ? Ts . ? t ?_... _ .?y.y ?'i ?' ? ,,.? '" - (` • ? . t:' . r±, ''. ? ?_ t "y?L Gs"1 ?« DAVID and CAROL IVEY, IN THE COURT OF COMMON PLEAS OF Husband and wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 08-3740 CIVIL TERM CHARTER HOMES AT THE PRESERVE, : INC., Defendant ANSWER, NEW MATTER, and COUNTERCLAIM OF CHARTER HOMES AT THE PRESERVE, INC Charter Homes at The Preserve, Inc. ("Charter Homes") by and through its undersigned counsel, states the following for its Answer, New Matter and Counterclaim: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted in part and denied in part. Charter Homes admits that Plaintiffs met with Meredith Distefano, a Charter Homes sales representative and admits that Plaintiffs purchased Lot #88 in the Preserve, a planned residential community. Charter Homes denies the remaining allegations of this paragraph. 4. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had discussions with Meredith Distefano regarding the home they wished to build in The Preserve. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 5. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. 6. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. 7. Admitted. 8. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 9. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. 10. Admitted. 11. Denied as stated. The Agreement is a document that speaks for itself. 12. Admitted in part and denied in part. Charter Homes admits that Plaintiffs executed an addendum to the Agreement and admits that the addendum is attached to the Complaint as Exhibit B. The addendum to the Agreement is a writing that speaks for itself. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 2 13. Admitted in part and denied in part. Charter Homes admits that Plaintiffs executed a second addendum to the Agreement and admits that the second addendum is attached to the Complaint as Exhibit C. The addendum to the Agreement is a writing that speaks for itself. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 14. Admitted in part and denied in part. Charter Homes admits that it informally staked out some parts of the foot print of the house as a service to the Plaintiffs, prior to the time that the house was staked out by the surveyor. Charter Homes admits that the house was staked out by the surveyor approximately 35 feet from the property line and admits that Charter Home broke ground several days later. Charter Homes admits that Brian Temple was the Neighborhood Builder and that Matt Tenny was the Team Builder for Charter Homes. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home. 15. Denied. Charter Homes denies that it placed a white stake to mark the front corner of the property and denies any implication that a white mark on the curbing marked the right front corner of the property. By way of further answer, the surveyors contracted by Charter Homes' to stake the lots in The Preserve marked the property corners with rebar pins, and oak witness stakes with orange ribbon. 16. Denied. Charter Homes denies the allegations of this paragraph and denies the implication that the end of the sidewalk signified the right front corner of Lot #88's boundary. By way of further answer, the sidewalk was installed to form roughly uniform rectangles, and the end of the sidewalk did not line up with the corner of Lot #88. Further answering, when the adjacent lot is vacant, Charter Homes' practice is to extend the sidewalk past the lot line in order to avoid having to enter onto a sold lot in order to continue the sidewalk. 17. Denied. Charter Homes denies each and very allegations of this paragraph. By way of further answer, the surveyors contracted by Charter Homes' to stake the lots in The Preserve marked the property corners with rebar pins, and oak witness stakes with orange ribbon. The corners of Lot #88 were marked in this manner on August 25, 2006. 18. Admitted in part and denied in part. Charter Homes admits that Plaintiffs sent a fax to Brian Temple and admits that the fax is attached to the Complaint as Exhibit D. The fax communication is a document that speaks for itself. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home and the location of the driveway. 19. Admitted in part denied in part. Charter Homes admits that it sent a letter to Plaintiffs on November 1, 2006, and admits that the letter is attached to the Complaint as Exhibit E. Charter Homes denies the remaining allegations of this paragraph. The letter is a document that speaks for itself. 20. Admitted in part and denied in part. Charter Homes admits that Trey McDonald was a team builder for Charter Homes in November 2006. After reasonable investigation, 4 Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 21. Admitted in part and denied in part. Charter Homes admits that Dwight Ashley and Trey McDonald were builders for Charter Homes during all or part of the time that Plaintiffs' Home was under construction. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Greg Hodecker was the Director of Homebuilding for Charter Homes, not a builder. Robert Malpass and Clay (last name unknown) were not Charter Homes' builders or employees; they were, upon information and belief, employees of the landscaping subcontractor. 22. Denied. After reasonable investigation, Charter Homes is unable to determine who Plaintiffs intend to reference by the term "Defendant's builders" so Charter Homes is unable to determine the truth of the allegations of this paragraph. The allegations are, therefore, denied. By way of further answer, the written Agreement contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 23. Admitted in part and denied in part. Charter Homes admits, upon information and belief, that Plaintiffs obtained a copy of the Build Plan from Hampden Township on or around December 26, 2006. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so they are denied. By way of further answer, the Build Plan was reviewed with Plaintiffs by Charter Homes in the summer of 2006. Further answering, in the Agreement they executed in June 2006, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. The sewer easement was depicted on the recorded subdivision plan for The Preserve. 24. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, in the Agreement they executed in June 2006, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. The sewer easement was depicted on the recorded subdivision plan for The Preserve. 25. Admitted in part and denied in part. Charter Homes admits that Plaintiffs contacted Lori King and asked about the sewer easement. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. the sewer easement was depicted on the recorded subdivision plan for The Preserve. 26. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in the written Agreement which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 27. Admitted in part and denied in part. Charter Homes admits that settlement on Plaintiffs' home occurred on December 29, 2006, and that the home was not completed at the time of closing. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the remaining allegations of this paragraph, so those allegations are denied. 6 28. Denied. Charter Homes denies the allegations of this paragraph. The property lines for Lot #88 are as defined in the recorded documents creating The Preserve. 29. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so those allegations are denied. By way of further answer, Charter Homes acknowledges that there were communications between it and Plaintiffs regarding the placement of trees and landscaping on Lot #88. 30. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so those allegations are denied. 31. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the two trees that were part of the landscaping package provided by Defendant were to be planted in the front yard. When the landscaper arrived to plant the trees, Plaintiff told the landscaper not to plant the trees in the front yard and directed the landscaper where to plant the trees. 32. Admitted in part and denied in part. Charter Homes admits that final grading and planting of grass were performed in the spring of 2007. Charter Homes denies any implication that the grading and planting of grass were an indication of the property boundaries. 33. Admitted in part and denied in part. Charter Homes admits, upon information and belief, that Plaintiffs consulted the Build Plan for their Lot. Charter Homes denies the remaining allegations of this paragraph. The Build Plan is a document that speaks for itself. 7 34. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had the driveway extended. Charter Homes denies the remaining allegations of this paragraph. 35. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had a flowerbed and patio installed. Charter Homes denies the remaining allegations of this paragraph. 36. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract. 37. Admitted. 38. Admitted in part and denied in part. Charter Homes admits that Lot #87 is narrower than Lot #88. Charter Homes denies the remaining averments of this paragraph. 39. Denied. After reasonable investigation, Charter Homes lack sufficient information and knowledge to determine the truth of the allegations of this paragraph, so the allegations are denied. 40. Admitted with clarification. Charter Homes admits that, at times, the site plan showed Lot #87 as having a spec house. By way of further answer, the site plan was updated to reflect the fact that parties had purchased the lot and had chosen a home to build on it. 41. Denied. Charter Homes denies each and every allegation of this paragraph. 42. Admitted with clarification. Charter Homes admits that it informed Plaintiffs that the trees that Plaintiffs had directed to be planted to the side of their house, and portions of the patio and driveway extension were not on Plaintiffs' property but were on Lot #87. 8 43. Admitted in part and denied in part. Charter Homes admits that, in or around April 2008, Mike Baran showed Plaintiffs the pins marking the boundaries of Lot #88. Charter Homes denies that it was unwilling or unable to located the pins prior to that time. By way of further answer, the rebar pins marking the property corners were installed by the surveyor on August 25, 2006. 44. Admitted in part and denied in part. Charter Homes admits that, in or around April 2008, Mike Baran showed Plaintiffs the pins marking the boundaries of Lot #88. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the right front corner pin was pounded into the ground so that the top of the metal rebar was flush with subgrade, but below the topsoil and grass, as is customary practice by surveyors. 45. Admitted in part and denied in part. Charter Homes admits that the properly line for Lot #88 crosses at the apex of the original driveway and admits that a small portion of driveway extension installed by Plaintiffs is located on Lot #87. Charter Homes denies that this is a "new" property line. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve. 46. Admitted in part and denied in part. Charter Homes admits that there is no side yard between Plaintiffs' driveway and Lot #88. Charter Homes denies that there is a new property line. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve. 47. Admitted in part and denied in part. Charter Homes admits that the trees were located on Lot #87, rather than Lot #88. Charter Homes denies that there is a new property and denies that it planted the trees. By way of further answer, the trees were to be planted in the 9 front yard, but Plaintiffs directed the landscaper to plant the trees along the side of the house in the location where they were planted. Further answering, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve. 48. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 49. Admitted in part and denied in part. Charter Homes admits that after Plaintiffs refused Charter Homes' offer to move the trees at no cost to Plaintiffs, Charter Homes demanded that Plaintiffs remove the trees that were planted on Lot #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Charter Homes never agreed to include part of Lot #87 in the property purchased by Plaintiffs. The property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 50. Admitted in part and denied in part. Charter Homes admits that it demanded that Plaintiffs remove the portions of the patio, flowerbed, and driveway extension that infringed on Lot #87. Charter Homes denies that it has established a new property line. The property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 51. Admitted in part and denied in part. Charter Homes admits that Plaintiffs has moved the items, except for the portion of the driveway extension that infringes on Log #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the 10 property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 52. Admitted upon information and belief. 53. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph, so the allegations are denied. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 54. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. Charter Homes never had any intent to vary the boundaries of Lot #88 from the boundaries established in the recorded subdivision plan for The Preserve. 55. Denied. Charter Homes lacks sufficient information and knowledge to determine the truth of the allegations regarding the survey, so those allegations are denied. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home. 56. Admitted in part and denied in part. Charter Homes admits that it sited the home so that it did not interfere with the sewer easement. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, in the Agreement they executed in June 11 2006, Plaintiffs acknowledged that they had had the opportunity to understand all of the property documents and documents of record affecting Lot #88. The sewer easement was depicted on the recorded subdivision plan for The Preserve. 57. Denied. Charter Homes lacks sufficient information and knowledge to determine the truth of the allegations regarding the survey, so those allegations are denied. By way of further answer, the Agreement provided that Charter Homes had the sole right to make all decisions regarding the construction of the home. 58. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. Count I - Reformation of Deed 59. Charter Homes incorporates herein by reference paragraphs 1 through 58 of its answer above. 60. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, the deed conveyed Lot #88 to the Plaintiffs as that lot was previously defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 61. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause 12 providing that statements or dealings not set forth in the written document are not part of the parties' contract and further providing that Plaintiffs would be bound by the terms of all recorded documents affecting Lot #88. 62. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed exactly the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract and further providing that Plaintiffs would be bound by the terms of all recorded documents affecting Lot #88. 63. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. By way of further answer, the terms of the sale of the home by Charter Homes to Plaintiffs are set forth in a written contract which contains an integration clause providing that statements or dealings not set forth in the written document are not part of the parties' contract and further providing that Plaintiffs would be bound by the terms of all recorded documents affecting Lot #88. 64. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed 13 would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements, dealings, and representations not set forth in the in the written document are not part of the parties' contract. 65. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 66. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 67. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Lot #88 was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 68. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes 14 denies the allegations of this paragraph. Charter Homes specifically denies that it planted trees on Lot #87; Plaintiff directed the landscaper to plan the trees on Lot #87. Charter Homes denies that the planting of grass was indicative of the property boundary. By way of further answer, Plaintiffs agreed to purchase Lot #88 was that parcel was defined in the recorded subdivision plan for The Preserve. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 69. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 70. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 15 71. Admitted in part and denied in part. Charter Homes admits that the actual property line for Lot #88 crosses at the apex of Plaintiffs' driveway and admits that a small portion of the driveway extension installed by Plaintiffs is located on Lot #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 72. Admitted in part and denied in part. Charter Homes admits that Plaintiffs had trees installed on Lot #87, instead of Lot #88. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 73. Denied. Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 74. Admitted in part and denied in part. Charter Homes admits that it seeks to enforce the Agreement that was signed by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 16 75. Denied. Charter Homes denies the allegations of this paragraph. Charter Homes does not seek to alter the established property line for any reason. The property line for Lot #88 was established in the recorded subdivision plan for The Preserve. 76. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, Charter Homes denies the allegations of this paragraph. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. Moreover, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. WHEREFORE, Charter Homes requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count II - Recession (In the alternative) 77. Charter Homes incorporates herein by reference paragraphs 1 through 77 of its answer above. 78. Denied. Charter Homes denies that there was any mistake regarding the boundaries of Lot # 88. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 17 79. Denied. Charter Homes denies that there was any mutual mistake. The remaining averments of this paragraph constitute conclusions of law to which no response is required. 80. Denied. Charter Homes denies that there was any mutual mistake. By way of further answer, Plaintiffs agreed to purchase Lot #88 as that parcel was defined in the recorded subdivision plan for The Preserve. The Deed conveyed the parcel that Charter Homes and Plaintiffs intended and contractually agreed would be conveyed. 81. Denied. Charter Homes denies that there was any mutual mistake. The remaining averments of this paragraph constitute conclusions of law to which no response is required. 82. Denied. Charter Homes denies that there was any mutual mistake and denies that it has failed to perform in accordance with the parties' agreement. By way of further answer, in accordance with the written Agreement, Charter Homes conveyed to Plaintiffs Lot #88 as defined in the recorded subdivision plan. 83. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 84. Denied. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations of this paragraph. Therefore, the allegations are denied. 18 85. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 86. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. WHEREFORE, Charter Home requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count III - Equitable Estoppel (In the alternative) 87. Charter Homes incorporates herein by reference paragraphs 1 through 86 of its answer above. 88. Denied. Charter Homes denies that it made such representations to Plaintiff. By way of further answer, the Agreement between Charter Homes and Plaintiffs specifically provides that statements and representations not set forth in the written document are not part of the parties' contract. 89. Denied. Charter Homes denies that it planted trees across the side boundary of Lot #88 and denies that grading and planting of grass defined the boundary of the Lot #88. By way of further answer, the boundaries of Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written contract to be bound by the recorded documents affecting the property that they agreed to purchase. Further answering, the trees were to be planted in the front yard, but Plaintiffs directed the landscaper to plant the trees in a location that was part of Lot #87. 19 90. Admitted in part and denied in part. Charter Homes admits that it notified Plaintiffs that the property line was farther to the left than Plaintiffs believed it to be. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the boundaries of Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written contract to be bound by the recorded documents affecting the property that they agreed to purchase. 91. Denied. Charter Homes denies that it made any mistake as to the location of the boundary of Lot #88. By way of further answer, the boundaries of Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs agreed in the written Agreement to be bound by the recorded documents affecting Lot #88. 92. Denied. Charter Homes denies that Plaintiffs reasonably relied on any representations that were not part of the written Agreement. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to any amounts expended by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 93. Denied. Charter Homes denies that it planted trees in the disputed area and denies that its grading and planting of grass defined the property boundary. 94. Admitted in part and denied in part. Charter Homes admits that Plaintiffs installed a driveway extension after they had taken possession of the property and admits that a portion of the driveway extension was installed on Lot #87. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the 20 allegations regarding expenses incurred by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. Charter Homes denies any implication that Plaintiffs should be compensated for installing the driveway extension outside the boundaries of Lot #88. 95. Admitted in part and denied in part. Charter Homes admits that Plaintiffs installed landscaping and a patio. After reasonable investigation, Charter Homes lacks sufficient information and knowledge to form a belief as to the truth of the allegations regarding expenses incurred by Plaintiffs. Charter Homes denies the remaining allegations of this paragraph. Charter Homes denies any implication that Plaintiffs should be compensated for installing landscaping and a patio outside of the boundaries of Lot #88. 96. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs and denies that Plaintiffs reasonably relied on any representations that were not part of the written Agreement. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 97. Denied. Charter Homes denies Plaintiffs reasonably relied on any representations that were nor part of the written Agreement and denies that it allowed Plaintiffs reliance to continue for any period of time. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 98. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 21 99. Admitted in part and denied in part. Charter Homes admits that it demanded that Plaintiffs remove the trees, patio, shrubs, and driveway extension that had been placed on Lot #87. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Plaintiffs directed the landscaper to plant the trees on Lot #87, rather than in the front yard as planned by Charter Homes. Further answering, Charter Homes offered to move the plantings at no cost to Plaintiffs, but Plaintiffs' declined. 100. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs. The remaining averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 101. Admitted. 102. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs and denies that Plaintiffs reasonably relied on any representations that were not part of the Agreement. The remaining averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 103. Admitted with clarification. Charter Homes admits that it was in possession of information showing the property lines for Lot #88. By way of clarification, the information was also available to Plaintiffs. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. 22 104. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. WHEREFORE, Charter Home requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count IV - UTPCPL (In the alternative) 105. Charter Homes incorporates herein by reference paragraphs 1 through 104 of its answer above. 106. Denied. Charter Homes denies that it engaged in fraudulent conduct that created a likelihood of confusion and misunderstanding on the part of Plaintiffs. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. 107. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs regarding the location of the property boundaries of Lot #88. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 108. Denied. Charter Homes denies that it represented to Plaintiffs that there would be an adequate side yard between their driveway and Lot #87. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 23 109. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs and denies that the existence of a side yard along the driveway is a material term to the parties' agreement. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 110. Denied. Charter Homes denies that it knowingly or recklessly made false representations. 111. Admitted with clarification. Charter Homes admits that it was in possession of information showing the property lines for Lot #88. By way of clarification, the information was also available to Plaintiffs. By way of further answer, the property lines for Lot #88 were established in the recorded subdivision plan for The Preserve, and Plaintiffs acknowledged in the Agreement that they understood the recorded documents affecting Lot #88. 112. Denied. Charter Homes denies that it made misrepresentations to Plaintiffs in order to induce Plaintiffs to rely on them. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 113. Denied. Charter Homes denies that Plaintiffs reasonably or justifiably relied on any representations that were not set forth in the written Agreement. By way of further answer, the Agreement contains an integration clause providing that representations not set forth in the written contract are not part of the parties' contract. 114. Denied. Charter Homes denies that Plaintiffs have suffered any injury or damage. 115. Denied. Charter Homes denies that Plaintiffs have suffered any injury or damage. 24 116. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. WHEREFORE, Charter Home requests judgment in its favor and against Plaintiffs and that Charter Homes be awarded its costs of suit. Count V - Trespass /Violation of Storm Water Management Act 117. Charter Homes incorporates herein by reference paragraphs 1 through 116 of its answer above. 118. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 119. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 120. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 121. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary 25 between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 122. Denied. Charter Homes denies each and every allegation of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 123. Admitted in part and denied in part. Charter Homes admits that Plaintiffs have complained about storm runoff. Charter Homes denies the remaining allegations of this paragraph. By way of further answer, Charter Homes was unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 124. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 125. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 126. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 127. Denied. Charter Homes denies that it has altered the flow of surface water so that storm water runoff flows onto Plaintiffs' property and denies that Plaintiffs have been damaged. 26 By way of further answer, any changes in surface flow of water resulting from Charter Homes' construction activities have been made in accordance with approved plans and are subject to governmental oversight. 128. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. By way of further answer, any changes in surface flow of water resulting from Charter Homes' construction activities have been made in accordance with approved plans and are subject to governmental oversight. 129. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. By way of further answer, any changes in surface flow of water resulting from Charter Homes' construction activities have been made in accordance with approved plans and are subject to governmental oversight. To the extent that Charter Homes was notified by any government agency that it was in noncompliance, Charter Homes has remedied any deficiencies. 130. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 131. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. 132. Denied. Charter Homes denies that Plaintiffs have suffered or are suffering any harm as a result of Charter Homes' actions. By way of further answer, Charter Homes was 27 unable to install silt fencing along the boundary between Lots #87 and #88 because landscaping, improvements, and other structures were installed by Plaintiffs in the area. 133. Denied. Charter Homes denies that Plaintiffs have suffered any harm. The remaining averments of this paragraph constitute conclusions of law to which no response is required. To the extent that a response is deemed necessary, the averments are denied. WHEREFORE, Charter Home request that the Court enter judgment in its favor and against Plaintiffs and award Charter Homes its costs of suit. NEW MATTER Defendant Charter Homes states the following new matter in response to Plaintiffs' Complaint: 134. Plaintiffs have failed to state a claim upon which relief can be granted. 135. Plaintiffs' claims are insufficient under the terms of the written New Home Purchase Agreement (the "Agreement") which they executed. A true and correct copy of the Agreement is attached as Exhibit A to Plaintiffs' Complaint. 136. The Agreement provides that Plaintiffs would purchase "Lot 88, in The Preserve." Ex. A., p. 1. 137. The Agreement also provides as follows: RECEIPT AND ACKMNOWLEDGMENT OF DOCUMENTS AFFECTING PROPERTY OWNERSHP. Buyer acknowledges that Buy has received, or will receive, on or before thirty (30) days after the Agreement Date of this Agreement, the following documents and information regarding ownership of the Property: The Public Offering Statement applicable to the Property, including copies of the Declaration, as amended, and the actual or proposed budget and homeowner assessments of The Preserve Neighborhood Association ("Property Documents"). Property ownership in The Preserve is subject to the provisions of 28 all documents of record including but not limited to, the recorded Declaration, as amended, and the recorded Subdivision plan(s) referenced in the Public Offering Statement). Buyer shall notify Seller in writing if Buyer has not received the Property Documents on or before thirty (30) days after the Agreement Date and the absence of such notice, on or before forty (40) days after the Agreement Date, shall be conclusive proof of the receipt by Buyer of the Property Documents on or before thirty (30) days after the Agreement Date. Buyer acknowledges that Buyer has had the opportunity to understand all of the provisions of the Property Documents and all other documents of record (including, but not limited to, easement and restrictions encumbering the Property and its use, covenants running with the land, and obligation which attach to Property ownership); Buyer acknowledges that the Property will be conveyed to Buyer subject to all of the rights and duties as established by documents of record; and Buyer agrees to accept the responsibilities of ownership as stated in all documents of record. Ex. A, p. 2. 138. The Agreement provides that "Seller will have the sole right to make all decision regarding the construction of the Home and development of the Property...." Ex. A, p. 2. 139. The Agreement provides as follows: ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer regarding the subject matter of this Agreement and there are no other terms, obligations, covenant, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this transaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, amending, adding to or changing the terms of this Agreement. No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. Seller is not responsible or liable for any agreement, condition or stipulation. not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, their respective heirs, personal representatives, successors and assigns. 29 Ex. A, p. 5. 140. Plaintiffs' damages, if any, are the result of Plaintiffs' own actions or inactions. COUNTERCLAIMS Defendant/Counterclaim-Plaintiff Charter Homes states the following for its claims against Plaintiffs/Counterclaim-Defendants David and Carol Ivey: 141. On June 23, 2006, David and Carol Ivey (the "Iveys") executed a New Home Purchase Agreement with Charter Homes at The Preserve, Inc. A true and correct copy of the Agreement is attached to Plaintiffs Complaint as Exhibit A. 142. The Agreement provides that the Iveys agreed to purchase and Charter Homes agreed to sell "Lot 88, in The Preserve" and a home to be constructed thereon. Ex. A., p. 1. 143. The Agreement also provided as follows: RECEIPT AND ACKMNOWLEDGMENT OF DOCUMENTS AFFECTING PROPERTY OWNERSHP. Buyer acknowledges that Buy has received, or will receive, on or before thirty (30) days after the Agreement Date of this Agreement, the following documents and information regarding ownership of the Property: The Public Offering Statement applicable to the Property, including copies of the Declaration, as amended, and the actual or proposed budget and homeowner assessments of The Preserve Neighborhood Association ("Property Documents"). Property ownership in The Preserve is subject to the provisions of all documents of record including but not limited to, the recorded Declaration, as amended, and the recorded Subdivision plan(s) referenced in the Public Offering Statement). Buyer shall notify Seller in writing if Buyer has not received the Property Documents on or before thirty (30) days after the Agreement Date and the absence of such notice, on or before forty (40) days after the Agreement Date, shall be conclusive proof of the receipt by Buyer of the Property Documents on or before thirty (30) days after the Agreement Date. Buyer acknowledges that Buyer has had the opportunity to understand all of the provisions of the Property Documents and all other documents of record (including, but not 30 limited to, easement and restrictions encumbering the Property and its use, covenants running with the land, and obligation which attach to Property ownership); Buyer acknowledges that the Property will be conveyed to Buyer subject to all of the rights and duties as established by documents of record; and Buyer agrees to accept the responsibilities of ownership as stated in all documents of record. Ex. A, p. 2. 144. The Agreement provides that "Seller will have the sole right to make all decision regarding the construction of the Home and development of the Property...." Ex. A, p. 2. 145. The Agreement provides as follows: ENTIRE AGREEMENT, PARTIES BOUND. This Agreement contains the whole agreement between Seller and Buyer regarding the subject matter of this Agreement and there are no other terms, obligations, covenant, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this transaction. No broker, agent or salesperson has authority to make, or has made, any statement, agreement or representation (either oral or written) in connection with this transaction modifying, amending, adding to or changing the terms of this Agreement. No custom or prior or other dealings between the parties will contradict, add to, or modify the terms of this Agreement. Seller is not responsible or liable for any agreement, condition or stipulation not specifically set forth in this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. This Agreement shall benefit and bind the parties hereto, their respective heirs, personal representatives, successors and assigns. Ex. A, p. 5. 146. Charter Homes constructed the home on Lot #88 in accordance with the terms of the Agreement. 147. The Iveys closed on the purchase of Lot #88 and the home built thereon in late December 2006. 31 i . % 148. A deed conveying Lot #88 in The Preserve from Charter Homes to the Iveys (the Deed") was recorded on January 8, 2007 at Cumberland County Deed Book 278, Page 1479. A true and correct copy of the Deed is attached hereto as Exhibit 2. 149. After closing, the Iveys directed the installation of landscaping, a patio, and a large driveway expansion at their home, but portions of the landscaping, patio, and driveway expansion crossed the boundary of Lot #88 and encroached on Lot #87. 150. Upon information and belief, the Iveys obtained a professional survey of Lot #88, and the survey confirmed the boundaries of Lot #88 are as set forth in the recorded subdivision plan for The Preserve. 151. The Iveys have removed the landscaping and patio that encroached on Lot #87, but have not removed the portion of the driveway that encroached on Lot #87. 152. Contrary to the clear terms of the Agreement and the Deed pursuant to which they purchased Lot #88, the Iveys have asserted that they are entitled to title, ownership, and possession of a portion of Lot #87. Count I - Declaratory Judgment 153. Charter Homes incorporates herein by reference paragraphs 141 through 151 above. 154. Title 42 Pa.C.S.A. § 7532 provides that courts have the power to declare rights, status, and legal relations between parties. 155. A dispute exists between the Iveys and Charter Homes regarding the boundaries of the property purchased by the Iveys. 32 i .. % 156. The boundary between Lot #88 and Lot #87 was established by the recorded subdivision plan for The Preserve. 157. The Iveys assert that, pursuant to certain alleged oral representations and actions by Charter Homes and others, the boundary between Lot #88 and Lot 487 was established at a location farther to the East such that Lot #88 is wider than depicted on the recorded subdivision plan and Lot #87 as narrower than depicted on the recorded subdivision plan. 158. The Agreement between Charter Homes and the Iveys provides that oral representations or other dealings between Charter Homes and the Iveys do not modify the terms of the Agreement. 159. Accordingly, the Iveys are not entitled to title to any property other than Lot #88 as depicted on the recorded subdivision plan. WHEREFORE, Charter Homes requests that judgment be entered in its favor and against the Iveys and that the Court declare that the Iveys possess title only to the land depicted as Lot #88 in the recorded subdivision plan for The Preserve. MCNEES WALLACE & NURICK LLC By _ L4 Kimberly M. Colonna I.D. No. 80362 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Tel. 717-237-5278 Dated: December 4, 2008 33 . • VERIFICATION Subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities, I hereby certify that I am the Vice President of Charter Homes at The Preserve, Inc. and that I am authorized to make this verification on its behalf. I further certify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, or information and belief. CHARTER HOMES AT THE PRESERVE, INC. B ames E. Brubaker Vice President 01/ , 2008 October m f r. . CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing document was served by U.S. mail, first class, postage prepaid, upon the follow' mg: Linus E. Fenicle, Esq. John H. Pietrzak, Esq. Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 Kimber y . Colonna Dated: December 4, 2008 1 Y 4- " CD co REAGER & ADLER, P.C. By: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: LFenicle(a,ReagerAdlerPC.com By: John H. Pietrzak, Esquire Attorney I.D. No. 79538 Email: Jyietrzak(a,Rea eg_rAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiffs, David and Carol Ivey DAVID AND CAROL IVEY, Husband and wife, Plaintiffs V. CHARTER HOMES AT THE PRESERVE, INC., Defendant : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 08-3740 CIVIL TERM : Jury Trial Demanded PRAECIPE TO REMOVE CASE FROM ARGUMENT TO THE PROTHONOTARY: Please remove the above captioned case from argument on February 4, 2009, as our Preliminary Objections no longer apply in light of the Defendant's Amended Answer and Counterclaim. Respectfully submitted, Date: January 22, 2009 REAGER & ADLER, P.C. LA s E. Fenicle, Esquire Attorney I.D. No. 20944 John H. Pietrzak, Esquire Attorney I.D. No. 79538 2331 Market Street Camp Hill, PA 17011-4642 (717) 763-1383 Attorneys for Plaintiff t'? ?? ° .? t... ?,? --3 -r?; ???.:. ;?- ct. ?? i ` y t <' f .. - ?? s-? REAGER & ADLER, PC By: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: LFenicle@ReagerAdlerPC.com By: John H. Pietrzak, Esquire Attorney I.D. No. 79538 Email: JPietrzak@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiffs, David and Carol Ivey DAVID AND CAROL IVEY, : COMMONWEALTH OF PENNSYLVANIA Plaintiffs : COUNTY OF CUMBERLAND V. ; Docket No. 08-3740 CHARTER HOMES AT THE PRESERVE, INC., Defendant MOTION TO QUASH DEFENDANT'S SUBPOENA DUCES TECUM OF RICHARD HIRSCH Pursuant to Rule 234.4 of the Pennsylvania Rules of Civil Procedure and the Cumberland County Rule of Civil Procedure 208.3(a), Plaintiffs, David and Carol Ivey, by and through their attorneys Reager & Adler PC, respectfully submit this Motion to Quash Defendant's Subpoena duces tecum of Richard Hirsch and in support thereof aver the following: 1. On May 5, 2009, upon the request of Defendant's Attorney, the prothonotary issued a subpoena of Richard Hirsch. A true and correct copy of the aforementioned subpoena is attached hereto as Exhibit A. 2. Plaintiffs' counsel were not served with a copy of the subpoena and obtained a copy from the Plaintiffs, who were contacted by Richard Hirsch. 1 r 3. Richard Hirsch is an agent of Mortgage Master Inc., neither of whom is a party to this lawsuit. 4. The above-captioned lawsuit involves a claim by Plaintiffs that they were not deeded the property that they were told was their property by representatives of Charter Homes at the Preserve, Inc. Accordingly, Plaintiffs seek reformation of their Deed to include this additional property that they were told was their property. 5. Plaintiffs secured a refinancing of their property that was described in their Deed through Mortgage Master Inc. and Richard Hirsch in January 2009. 6. The subpoena request by Defendant is for all mortgage documents in relation to that refinance. 7. The property subject to the mortgage through the refinance is the specific property that was deeded to Plaintiffs by Defendant when Plaintiffs purchased their property, which mortgage is recorded in the Cumberland County records. 8. Defendant's discovery request is sought in bad faith, is made to cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or Plaintiffs on the basis that it is seeking irrelevant material and personal financial information, and is beyond the scope of discovery as set forth in Pa.R.C.P. 4003.1. 9. Pursuant to Pa.R.C.P. 4003. 1, the Defendant may "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,..." 10. Defendant's subpoena duces tecum is seeking to discover mortgage documents containing the Plaintiffs' personal credit information, including a complete summary of Plaintiffs' financial assets, bank account numbers, social security numbers, and other private 2 information. In addition, none of the mortgage documents have any relevance whatsoever to the litigation that is the subject of this lawsuit and the discovery request is a mere fishing expedition. 11. None of the documents sought relate to the Defendant's defense and Defendant can obtain the discoverable mortgage information necessary for its defense from the Cumberland County Recorder of Deeds office. 12. Pursuant to Cumberland County Rule of Civil Procedure 208.2(d) concurrence of the opposing counsel of record was sought and refused. Counsel for Defendant did contact counsel for Plaintiffs and offered to attempt to come to an agreeable limitation on the scope of the subpoena duces tecum, but there has been no agreement as of this date. 13. No judge has ruled upon this issue in this case or any related case. WHEREFORE, Plaintiffs pray this Court to quash the subpoena duces tecum of Richard Hirsch. Dated: May45, 2009 Respectfully submitted, REAGE & ADLER, PC inus E. Fenicle, Esquire Attorney I.D. No. 20944 John H. Pietrzak, Esquire Attorney I.D. No. 79538 2331 Market Street Camp Hill, PA 17011-4642 Phone: (717) 763-8313 Fax: (717) 730-7366 3 M,4Y-07-2009 02:40 PM It ranr. 7179096696 P.01 t, ? cjl??7 Try " 2)"1 vt' Of _#Or6e? ar?+? Iowa CW ct MMNMMA o DAVM AD Gild. IV=. p Cwt BRAS A = . =C.,. Dofmoawee TO- rr. rta. o??s?y A TOAMEMAIMINITM NINA. PA 'fiat re arird 1r :+la?t b gsrrlab _. l?aasae t ?Ienrick too psm PA 17101 at C?11M1 , as r 2? 9 yo i *in bioif d Dalosama is COMP M 4014 im-i i I m al?aslb?t. 2. 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This request but is b, aowrpld l bar the hSmoys or carftw*V ir?fvr?naUrr? pnoM d by W& w^ documads:?MSciirrp mW conin?rticatiSns wMh the k", maim of IselingS or ®arw VAO to w"146 "Od "li do- a or eppoiribi sat books reftc* g may Rib oc a +ir wia rMilh .020 4 , CERTIFICATE OF SERVICE AND NOW, this 15th day of May, 2009, I hereby verify that I have this day caused a true and correct copy of the foregoing document to be served via first class mail, postage prepaid, and addressed as follows: Kimberly M. Colonna, Esquire McNees Wallace & Nurick, LLC 100 Pine St. P.O. Box 1166 Harrisburg, PA 17108-1166 Richard Hirsch Mortgage Master Inc. 6130 Log Cabin Trail Enola, PA 17025 REAGER "DLER. PC E. Fenicle, t`_€ ' i 2 3 9 f 11 'In ;-; P I i 2: r it D ._/ REAGER & ADLER, PC By: Linus E. Fenicle, Esquire Attorney I.D. No. 20944 Email: LFeniclegRealerAdlerPC.com By: John H. Pietrzak, Esquire Attorney I.D. No. 79538 Email: JPietrzak@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiffs, David and Carol Ivey DAVID AND CAROL IVEY, Plaintiffs V. CHARTER HOMES AT THE PRESERVE, INC., Defendant COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND : Docket No. 08-3740 PRAECIPE Please mark the Motion to Quash Defendant's Subpoena Duces Tecum of Richard Hirsch withdwrawn. Dated: May ;9 '2009 Respectfully submitted, REAGE ADLER C L us E. Fenicle, Esquire Attorney I.D. No. 20944 John H. Pietrzak, Esquire Attorney I.D. No. 79538 2331 Market Street Camp Hill, PA 17011-4642 Phone: (717) 763-8313 Fax: (717) 730-7366 , ` i CERTIFICATE OF SERVICE AND NOW, this day of May, 2009, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: Kimberly M. Colonna, Esq. McNees Wallace & Nurick, LLC P.O. Box 1166 100 Pine Street Harrisburg, PA 17108-1166 REAGE ADLE PC Linus E. Fenicle jow -I%. F THE 2CC9 MAY 22 PH 2: 1 J DAVID AND CAROL IVEY, Husband and wife, PENNSYLVANIA Plaintiffs V. CHARTER HOMES AT THE PRESERVE, INC., Defendant : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, No. 08-3740 CIVIL TERM Jury Trial Demanded PRAECIPE TO DISCONTINUE To the Prothonotary: Please mark the above action settled and discontinued with prejudice. REAGER & ADLER, P.C. N o a f7 :, co Y 70M = f` 1 - r By: /--// John ietrzak, Esquire Atto i 1. D. No. 79538 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiffs, David and Carol Ivey Dated: January 6, 2009 DAVID AND CAROL IVEY, Husband and wife, PENNSYLVANIA Plaintiffs V. CHARTER HOMES AT THE PRESERVE, INC., Defendant : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, No. 08-3740 CIVIL TERM Jury Trial Demanded CERTIFICATE OF SERVICE AND NOW, this 6th day of January, 2010, I hereby verify that I have this day caused a true and correct copy of the foregoing document to be served via first class mail, postage prepaid, and addressed as follows: Kimberly M. Colonna, Esquire McNees Wallace & Nurick, LLC 100 Pine St. P.O. Box 1166 Harrisburg, PA 17108-1166 Richard Hirsch Mortgage Master Inc. 6130 Log Cabin Trail Enola, PA 17025 REAGER & ADLER, P.C. By: John ;.PAietrzalk, squire Attorney I.D. No. 79538 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiffs, David and Carol Ivey