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08-7547
COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of Zi4we--Alid COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. l && I OL parer iuAmf yr l -0;.- o / C ?C fw J, Gorrc? / ADDRESS OF APPELLANT CITY STATE ZIP CODE sine AQa•6 r/,..rk 7cr? 3 DATE OFADGIAEMf IN CASE OF?(ftwuimr) ETNA /< ve G/ Q 1 SIGNATUME? APPELLANT OR ATTORNEY OR AGENT This block will be signed ONLY when this rotation is required under Pa. R.C.P.D.J. No. 10086. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possesAn in this case. NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT was R.C.P.D.J. No. 71001(6) in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. or PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal Name of appoloos) (Common Pleas No. 7 withi0h twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of app*bnt rromey or apes RULE: TO A91(fAt's appellee(s) Name of appe#Ws) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mad. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 of Proftnotary or DepwAy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE- COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANTS COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERWC OF NOTICE OF APPEAL AND RULE TO FILE CO#PLA1NT (This pitfof of service JWUST BE'f1LLf)'tM Af TEN (10) DAYS AFTER filing of the notice of'appeb `Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of a/fiant Signature of official before whom alWavit was made _ ? cry Title of olftal, t i My commission expires on 20 : N H ?' COMMONWEALTH OF PENNSYLVANIA :-`NfiICE OF JUDGMENT/TRANSCRIPT COUNTY OF. CUMBZRLAND RESIDENTIAL LEASE Mag. Dist. No.: PLAINTIFF: NAME and ADDRESS 09-2-01 r--ZOOZ, DOUGLAS L MDJName: Hon. 480 NO PUJI[P RD PAULA P. CORRBAL LANCASTER, PA 17601 Address: 2160 SPRING RD. SUITE #3 R` CARLISLE, PA VS. i a { DEFENDANT: NAME and ADDRESS Telephone: 117<I ' 218-'5250. 1701. 0000 .:rC,EDERw=,, RONALD D, ET AL. 120 CRAMS GAP RD ATTORNEY DEF PRIVATE CARLISLE, PA 17013 GEOFFREY N. BIRINGER L J 401 S LOUTBER ST STE 103 Docket No.: LT-0000191-08 CARLISLE, PA 17013-2625 Date Filed: 12/11/08 :l . THIS IS TO NOTIFY YOU THAT: Judgment: L_ I Judgment was entered for: (Name) g I.AS y - Judgment was entered against CEDERL LAURA L in a Z? Landlord/Tenant action in the amount of $ 81,161.78 on 12/24/08 (Date of Judgment) The amount of rent per month, as established by the Magisterial District Judge, is $ 995.00. The total amount of the Security Deposit is $ .00 Total Amount Established b MDJ Less Security Deposit Applie= Adjudicated Amount i Rent in Arrears $ 95.00 - $ .08= $ 995.00 P vcirAI amanips Leasehold Property $ 6.6791.35 - $ .00= $ 6. 679.35 A-fEP P r-wF(Z lTRn514 $ 14 13 %; Is, $ _00= $ 325_65.. Less Amt Due Defendant from Cross Complaint - $ -0 ? Interest (if provided by lease) $ Qd UT Judgment Amount y $ S,d00_OO ? 'Attachment Prohibited/ Judgment Costs $ i6 77 B 42 Pa.C.S. § 8127 Attorney Fees $ _ oe ? This case dismissed without prejudice. Total Judgment $ 8,161.78 ?Z Possession granted. Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ? Possession granted if money judgment is no sa Is ie by time o eviction. ? Possession not granted. ? Defendants are jointly and severally liable. - '?NINTNO?A FiE?II? iRP PA I'I'V? IN AN"AC FIA3-T9AId TWA#PEAL i?i6IW A JVDa61-eNT-FO}1 P75SS SION WI?'`HM = TEN DAYS AFTER THE DATE OF ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. THIS APPEAL WILL INCLUDE AN APPEAL OF THE MONEY JUDGMENT, IF ANY. IN ORDER TO OBTAIN A SUPERSEDEAS, THE APPELLANT MUST DEPOSIT WITH THE PROTHONOTARY/CLERK OF COURTS THE LESSER OF THREE MONTHS RENT OR THE RENT ACTUALLY IN ARREARS ON THE DATE THE APPEAL IS FILED. HOWEVER, LOW-INCOME AND/OR SECTION 8 TENANTS SHOULD REFER TO Pa.R.C.P.M.D.J. No. 1008 OR 1013 FOR DIFFERENT PROCEDURES REGARDING THIS DEPOSIT. IF A PARTY WISHES TO APPEAL ONLY THE MONEY PORTION OF A JUDGMENT INVOLVING A RESIDENTIAL LEASE, THE PARTY HAS 30 DAYS AFTER THE DATE OF ENTRY OF JUDGMENT IN WHICH TO FILE A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. THE PARTY FILING AN APPEAL MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THE NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL P OCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT,O COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF CQJNMQN,RL,EJS ACID NO FUR (HER ERtQCESS NAY BE ISS ED BY THE MAGISTERIAL DISTRICT JUDC,aE " ;. UNLESS THE JUDGMENT IS,ENTI RED IN THE COURT OF C MMON PLEASt ANYONE INTERESTED I E JUDGMENT KAY FILE A REQUEST FOR EILTRY OF, SATISFACTIORWITH THE;MAGIS. RIAL'DISTRICT JUDGE IF THE'JUDGMENT PEEff6F'PAA IN-FULL, SETTLES, OR OTHERWISE COMPLIES .WITH THE JUDGMENT: 11.,J Z4 r y M Date "Malglste 'District Judge certify that this is a true an c o the rec =rp%? I scon Ining• p u gmen 121 a 4 Date e . ,.Wgisteri9l"District Judge commission expires first Monday of January, 2012 AOPC 315A-08 SEAL U8 - ?54'1 ai va7k COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS PLAINTIFF: NAME and ADDRESS County Of ra-*N NG? ?d <4 S L.. zo IPVW?Af r?cas rie ?, ,dr4 s7? o/ vs. DEFENDANT: NAME and ADDRESS 1 ,04491,W Z Common Pleas Docket No. TENANT'S SUPERSEDEAS AFFIDAVIT (NON-SECTION 8) FILED PURSUANT TO Pa.R.C.P.M.D.J. No. 1008C(2) have fi 64r luevc (print name and address here), R 4W 3 awarding to my landlord possession of real property that I occupy, and I do not have the financial ability to pay the lesser of three (3) times my monthly rent or the judgment for rent awarded by the magisterial district court. My total household income does not exceed the income limits set forth in the supplemental instructions for obtaining a stay pending appeal and I have completed an in forma pauperis (IFP) affidavit to verify this. I,X&Yel(iave not (cross out the one that does not apply) paid the rent this month. I verify that the statements made in this affidavit are true and correct to the best of my 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. / 3/ ae ate 3! p ?i 'J "?"Z) 'e"-- ":=Z_// SI NATURE dF TENANT JAuu, P AOPC 312-08 (B) Fri ?> C3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DOUGLAS L.ZOOK, Plaintiff VS. RONALD CEDERLUND and LAURA CEDERLUND Defendants No. 2008 - 'j?yrf ?iIV i -Fe'rN4 : CIVIL ACTION -LAW PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: Kindly allow Ronald and Laura Cederlund to proceed in forma pauperis. I, Geoffrey M. Biringer, the attorney for the party proceeding in forma pauperis, certify that I believe the party is unable to pay the costs and that I am providing free legal service to the party. ./3 4d??? ?2; Date: Geoffrey M. Biringer MIDPENN LEGAL SERVICES 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Sup. Ct. ID# 18040 c a . CAD , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DOUGLAS L. ZOOK Plaintiff VS. No. 2008 - IS/ 7 (? ? V i l ? ??'Yl s RONALD CEDERLUND and LAURA CEDERLUND s CIVIL ACTION - LAW Defendants PRAECIPE FOR RENT ESCROW Pursuant to Pa.R.C.P.M.D.J.R.1008, please accept rent escrow from the Defendants in the above in the amount of $332.00 as a condition of obtaining a supersedeas. Geoffrey M. Biringer Attorney for Defendants 71 _ W _ i.' Postal ¦ • CERTIFIED i- rU (Domestic Mail Only, No Insurance Coverage Provided) ru Cr Ai C*rH'-,IE P4 1'oi.t-'R}iI); cc Co Postage a Postage $ , r . F . r_ D Certified Fee 7 O 2 / :?7 0 Certified Fee C3 b 4 2 stmark 0 Return Recei t Fee 1 Fosm Return Receipt Fee (Endorsement Required) t f f Here i ? ?. 4 (Endorsement Required) 1. If 1111 1 =1?1+ He° L 2006 C3 ==Delivery Fee Y11:b :Ct Restricted Delivery Fee r9 (Entlorsement Required) (Endorsement Required) 4Ai =! i1-' g / so C11 C3 M Total Postage 8 Fees 1 1 i i i /62/2009 Total Postage & Fees I L r, A J 5 L= !i ..n r3 Sent To n_ Sent To C3 f1 vL?dl l.?J l' V2' /?n iJ d -Po zC ! L o:? t?' S`&eet, Apt No.; 12. 1 SYiaet, Apt loo.; G or PD Box No. 22?jD ?yp ?ordPOBoxft. -?Q (J-- j t ?l`?/ZSc ------------- City State, Z%P+4 °° ° r l C State, ZIP+4 CGL cS?e /9' 1 ?o ( (g ?t?o Lam, ?i' f',4- / W v) 'S Form 3800, June 2002 See Reverse for Instructio PS Form 3800, June 2002 See Rever 'PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT fTt?is proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable r s.) COMMONWEALTH OF PENNSYLV NIA COUNTY OF ? ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served 0&-r!917 a copy of the Notice of Appeal, Common Pleas upon the District Justice designated there vi }7 (date of service) ?. , 20?, ? by personal service ?y (certified) (r di r j I, se er's receipt ached hereto, and upon the appellee, (name) ICJ L, "e4?- -ZVI 20/ ? by personal service certified) (re tered) mail, e6der's receipt attached hereto. (I )RN) (AFFIRMED) ANDS BSCRIBED BEFORE ME "S I'm 01 T S DAY OF 20Q? Signature of official before whom affid ft As m de Tj* of official IF? I ilow 20 Or" AWON XWMNOKM To 7YMV10N " vG r Sig a!n = o/aflrant COURT OF COMMON PLEAS Judicial District, County Of tal,tr ??C NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT t COMMON PLEAS No. ' '111 1 011 1 '. NOTICE OF AWPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. WE 0FXVGWW ALY10 14e e r. it/ 10214k / 40 LS ?7,e 4? oUato /?/_-? when this rotation is R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice. will cfnerste as a SUPERSEDEAS to Vw je r`t io? posseAn in this case. *W GM*m be(om a ofsM t Justice, A-COMPLMNT MOST BE FILED m0nn hmnty a (20) days alter tNGri Me NOTICE of APPAL. rv ' ,`z f„` r CJ' i PRAECIPE TO ENM RULE TO FILE COWPLAW AND RULE TO FU, ' (This section of fbim to be used ONLY when appellant was DEFENDANT (see Pa.RC.P.D.J. No. 1001(7) in ac*on beWie Diced Justice. IF NOT USED, detach from copy of nobbe of appeal to be servsd upon appefee. PRAECIPE: To Prothonotary Enter rule upon appeffeei(s), to file a comph*4 in this appeal Nams Of SAMAela) (Common Pleas No. -? t1? (IV j ) within twenty (20) da7 service of Tula or suffer entry of judgrnent of non pros: A sJpnewwe orb or agent RULE: To t Q S . apple(s) Nsma of arpa?ee(sj (1) You are notified that a rule is hereby enterer) upon you to file a cornplaint in this appeal within twenty (20) days after the date of service of this rule upon you by OW"I service or by cartiWed or read mail. (2) If you do tot file a- c6rtapl Mt within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGA€NST YOU. (3) The date of service of thismAe if service was by mad is the date of the mailing. r '{ Date . 20 t V .Sgmi( jo(prommootaryarDepot}, YOU. *UST INCLUDE A, gOPV OF THE NOTICE OF JU NTMtM16C#FPT FOIMA WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE - COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANTS COPY PINK - COPY TO tE SOMW ON APPELLEE GOLD -COPY TOtE SERVED ON DtSTR T JUSTICE DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL 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 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By Artt y S. Potter I.D. #75903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Date: January 15, 2009 #739056v1 4116-01 DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Ronald and Laura Cederlund c/o Geoffrey M. Biringer 401 E. Louther Street, Suite 103 Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. Date: January 15, 2009 By Anthony S. Potter I.D. #75903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Douglas L. Zook #739065v1 4116-01 DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 08-7547 CIVIL JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, Douglas L. Zook, by and through his undersigned counsel, bringing the following civil action against Defendants, Ronald and Laura Cederlund: 1. Plaintiff Douglas L. Zook is an adult individual with a principal place of business located at 480 Running Pump Road, Lancaster, Pennsylvania 17601. 2. Defendants Ronald and Laura Cederlund (herein after collectively referred to as Defendants or Cederlunds) are adult individuals residing at 120 Cranes Gap Road, Carlisle, Pennsylvania 17013. 3. On or about May 15, 2008, Defendants entered into a Residential Lease with Purchase Option Agreement ("Agreement") with Plaintiff for the home located at 120 Cranes Gap Road, Carlisle, Pennsylvania 17013. (A copy of the Residential Lease with Purchase Option is attached hereto and incorporated herein by reference as Exhibit "A.") 4. The Agreement provided for a term of seven and a half years on the property at a monthly Lease Payment of $995 ("LP Payment") plus taxes and insurance. 5. The Agreement requires Defendants to pay taxes and insurance on the Property. 6. Defendants took possession of the leased premises on or about May 15, 2008, in accordance with the terms and conditions of the Agreement. #738648v1 4116-01 7. After November 5, 2008, the Cederlunds ceased making any payments due and owing under the terms and conditions of the Agreement. 8. On or about November 7, 2008, representatives of Plaintiff inspected the premises noting and photographing severe damage to the Property. 9. Plaintiff's representatives observed, among other things, severe staining on carpets and floors, a demolished interior wall, water damage as a result of a broken showerhead pipe in the bathroom, and debris and pet waste on the finished floors of the home. 10. The damage and Defendants' failure and refusal to maintain and repair the Property constitute a breach of the Agreement, specifically, Paragraph 8 of the Agreement. 11. Defendants have also breached the Agreement by maintaining pets at the premises and allowing those pets to urinate and defecate in the home. Keeping unapproved pets violates Paragraph 5 of the Agreement, and the Defendants' failure to repair the damages caused by those pets violates the Agreement, including but not limited to, Paragraphs 8 and 9 of the Agreement. 12. The fair and reasonable cost to repair and replace damaged and broken items in the home is eight thousand dollars ($8,000.00). Attached hereto and incorporated herein by reference as Exhibit "B" is an estimate for $8,000 to repair the broken and damaged items at the premises. 13. Plaintiff demanded that Defendants undertake their obligations to repair the damage done to the property, but Defendants have failed and refused. 14. Defendants have failed and refused to make monthly LP Payments for December 2008 and January 2009 and other payments required by the terms and conditions of the Agreement. 2 (A true and correct copy of the most recent Statement of Account Receivable sent to Defendants is attached as Exhibit "C" and incorporated herein by reference). 15. Plaintiff initiated a Landlord Tenant Action before District Judge Paula P. Correal seeking to obtain a judgment for the damage to the property, collect the LP payments, utility payments in arrears, and to obtain possession of the property. 16. By Order dated December 24, 2008, the Honorable Paula P. Correal awarded Plaintiff a monetary sum of $8,161.78, representing the lease payments in arrears for December 2008, the utility payments in arrears plus costs. District Judge Correal also granted Plaintiff Zook possession of the residential real property. (A true and correct copy of the Notice of Judgment/Transcript Residential Lease is attached hereto as Exhibit "D" and incorporated herein by reference). 17. On or about December 31, 2008, Defendants filed a notice of appeal and posted one third (1/3) of the monthly rent. 18. Plaintiff, by and through his construction manager, inspected the premises again on Friday, January 9, 2009, and Defendants still have failed and refused to undertake repairs and maintenance to the premises. COUNT I (EJECTMENT) 19. Plaintiff incorporates all of the above paragraphs as if fully set forth here at length. 20. The Agreement obligates Defendants to make a nine hundred and ninety five dollar ($995) LP Payment on or before the first day of each month. Defendants have not made a LP Payment since November 5, 2008. 21. Defendants failed and refused to pay the December 2008 and January 2009 LP Payments. 22. Defendants are in default based upon their failure to make the December 2008 and January 2009 LP Payments. 23. Defendants are also in default based upon their failure to pay taxes and insurance on the Property. 24. In entering into the Agreement Defendants expressly waived any notice requirements for a default on the LP Payment. The Agreement expressly provides that "there is no notice required and no cure period for a default resulting from non-payment or late payment of the LP payment." See Exhibit "A" Paragraph 13. 25. Plaintiff is entitled to possession of the premises based upon Defendants breaches of the Agreement, including but not limited to, their failure to make timely required LP Payments, failure to repair or maintain the premises, and their keeping of unapproved pets that defecated and urinated in the home. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in favor of Plaintiff and against Defendants for possession of the premises located at 120 Cranes Gap Road, Carlisle, Pennsylvania together with costs, fees and attorneys' fees as permitted by law and the Residential Lease with Purchase Option Agreement. 4 COUNT II (BREACH OF CONTRACT) 26. Plaintiff incorporates all of the above paragraphs as if fully set forth here at length. 27. After November 2008, Defendants failed and refused to pay their Lease Purchase Payments. The Defendants are in arrears on their LP Payments under the Agreement in an amount of $1,990. 28. The Defendants have failed and refused to pay for utility and trash bills as required by Paragraph 3 of the Agreement. The Defendants are in arrears on the sanitary sewer bill and the garbage bill in an amount of $125.65. 29. The Defendants have failed and refused to make late fee payments on the LP Payments and the Utility bills as required by the Agreement. The late fee charges are currently in excess of $400.00 in arrears and continue to accrue. 30. The Defendants have failed and refused to maintain and repair damage to the premises in accordance with Paragraph 8 of the Agreement. 31. The damage to the premises for which Defendants are responsible include pet waste on the carpet and floors, an interior wall that was demolished, water damage to walls and flooring as a result of a broken showerhead pipe in the bathroom, a broken showerhead pipe, and carpet, floor and subfloor damage as a result of pet excrement and urine being allowed to soak into the surfaces. 32. The fair and reasonable cost of repairing and replacing the broken and damaged items in the home described above is $8,000, as shown more particularly by the estimate attached as Exhibit "B." 33. Plaintiff is entitled to an award of attorneys' fees and costs pursuant to Paragraph 21 of the Agreement. Said attorneys' fees and costs continue to accrue and Plaintiff requests leave to amend the complaint to include such damages once liquidated. WHEREFORE, Plaintiff demands judgment against Defendants as follows: a) In the amount of $995 per month for LP Payment, which at the time of the filing of this complaint are $1,990 in arrears, with interest from the 15` of each month that the LP Payment was due; and b) In the amount of $125.65 for utility bills and late fee charges; C) late fees in the amount of $400.00; and d) In the amount of $8,000 for repairs to damaged items; and e) insurance and tax costs as required by the Residential Lease with Purchase Option Agreement to be determined at the time of trial; and f) costs, fees and attorneys' fees as permitted by law and the Residential Lease with Purchase Option Agreement in an amount to be determined at the time of trial. POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By. ?. 0?e?j Anthony S. otter I.D. #759 114 N. cond Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Douglas L. Zook Date: January 15, 2009 6 May 15 08 02:27p Dave Miller 717 932 9578 p.1 RESIDENTIAL LEASE WITH PURCHASE OPTION You, Ronald D. and Laura L Cederlund (also called Lper in this contract), have given a deposit in the amount of $8000 Lei Alt thousand do arsL After the Owner of the premises accepts and signs this lease, your deposit will become non-refundable and will be applied as follows: To non-refundable option consideration.............. ......................:$8000 Your first lease payment (also known as LP payment) is due on or before _5/15108 for the period _5/15-5/31/08 ................ : $497.50 The Non-refundable option consideration gives you the option to purchase the property during the ternn of the lease, so long as you do all the things you are agreeing to do, when you have agreed to do them. If Owner or his authorized agent does not accept and sign this agreement within 15 days, it shall terminate and your deposit will be returned Y on are offering to lease from the Owner the premises, described as a large double wide and the lot it sits on known as 120 Cranes Gap Rd. Carlisle Pa. 17013 in the County of Cumberland, State of PA upon the following TERMS AND CONDITIONS. TERM: The teem of this lease will start on _5/15108 , and end on _ 12/31/2014 unless the purchase option is exercised before the option terminates in accordance to clause 29. 2. MONTHLY PAYMENT: The Monthly LP payment at the start of the lease will be $_$995 per month due in advance on the fast of each month to Owner or his authorized agent at the fol lowing address 480 Running Pump Rd, Lancaster, PA 17601 or at a different address if the Owner notifies you to change the address you send your payment to. The LP payment includes S-4)- as a payment toward taxes and insurance. If this amount is not enough to cover the actual taxes and insurance, the Owner wiR send you a bill for the difference which you agree to pay as additional rent within 30 days of being billed by Owner. If you are ever late paying a tax or insursum bill, then at Owners sole option you will be given notice of the monthly amount equal to 1112 of the estimated fazes and insurance shortfall that will be added to the monthly LP payment for futare trot and insurance bills, which shall then be due monthly with your LP payment as additional rent If you don't pay your payment on or before the due daft you must pay Owner a $100 plus $3 a day until paid late fee. If you bounce a check for any reason you must pay Owner a $30 bad check flee. I/W have nd and - the terms and conditions contained in this entire agreement EXHIBIT A May 15 08 02:27p Dave Miller 717 932 9578 p.2 2 3. UTILITIES: You are responsible for the payment of all utilities and trash and other ongoing maintenance and cleaning services related to the premises. 4. USE: You may only use the premises as a single family residence. Any other use requires written approval from Owner. 5. PETS: You may not have pets on the premises unless you have written approval first from owner. If Owner approves any pets, they must be kept in compliance with all laws. If Owner approves a particular pet or pets, that does not automatically approve other pets without written permission from Owner. 6. ORDINANCES AND STATUTES: You agree to comply with all deed restrictions, statutes, ordinances and requirements of municipal, state and federal authorities now in force, or which may be put into force at a later time, pertaining to your use of the premises. 7. ASSIGNMENT AND SUBLETTING: You may not assign this agreement or sublet any portion of the premises without written approval from the Owner. If Owner approves one assignment or sublet, that does not automatically approve other assignments or sublets without written permission from Owner. 8. MAINTENANCE, REPAIRS, OR ALTERATIONS: You have impacted the premises and acknowledge it is in good order and repair and accept it as it was shown to you. Any exceptions are noted here: Owner will remove the one add on deck, supply it's standard paint (LPer to do good quality full paint labor job), and remove wood stove. Electric heat furnace unit is functional, AC unit is not. 8.a. WAIVER OF WARRANTIES, ACCEPTANCE AS IS: This agreement constitutes the entire contract between the parries hereto and the Owner is not liable or bound in any manner by expressed or implied warranties, guaranties, promises, statements, representations, or information perti fining to said premises. Except as noted on the line above, the LPer agr ces to tale the premises as is and with any and all faults, known or unknown. The LPer waives any and all statutory or implied warranties with regard to defects in, or the habitability of. the premises. The terms of this waiver shall survive settlement if Lper exercises the purchase option. You, at your own expense, must at all times maintain the premises in a clean and sanitary condition including all equipment, appliances, furniture and furnishings in the premises and shall turn it all back over to Owner, at the end of the lease period, if you do not exercise your option to purchase, in as good condition as received, except for normal wear and tear. Pet stains and odors and other pet damage shall not be considered normal wear and tear, even if pets were approved by Owner. You must water and maintain any surrounding grounds, including any storm wager facilities, and you must maintain drainage away from the house including any downspout extensions or pipes. You must maintain all lawns and shrubbery and keep the premises okay of rubbish or weeds. You must also maintain all facilities, mechanicals, wiring, roofing, siding, decks and other features of the home in good working order and appearance. You have inspected and verified the operating condition of the smoke detectors and agree to maintain them in an operating condition including weekly testing and battery replacement when needed, at all times. You must gat written permission from Owner to paint, paper, or otherwise decorate or make alterations to the promises. e have =pdalstand an. the twins and conditions contained in this entire agreement hyl Date A . P.C. 05 May 15 08 02:28p Dave Miller 717 932 9578 p.3 3 You must keep all kids toys in the back of the house out of site or inside when not being played with, no bikes, toys, trampolines, etc may be stored in the front yard. All grass must be kept under 5" in length at all times. You must pay all the costs of maintaining the premises the same as if you actually owned the property without benefit of the LP structure. Upon notice from (honer, the local municipality, any state or federal agency, including but not limited to Soil Conservation Service (SCSI or the Department of Environmental Protection (DEP% you must immediately comply with any and all assessments and requirements including but not limited to any National Pollutant Discharge Elimination System Permit (NPDES) or other permit requirements pertaining to the property, at all times, and if Owner, at ft's sole option, attempts to defend against such an assessment or requirement and/or receives a fine due in full or in part to your non- compliance with these requirements, you must reiimburse Owner for all costs of defense against said action and also for (at Owners sole option) bringing the premises into compliance together with any fines and/or legal costs incurred by Owner by your failure to comply, at cost plus 200/0, within 10 days of being billed by Owner. This obligation shall survive settkment if the purchase option is exercised. 9. DAMAGES FOR NEGLIGENCE: You are responsible for damages caused by your negligence and that of your family or anyone you invite to the premises including any guests. 10. ENTRY AND INSPECTION BY OWNER: You must permit Owner or Owners Agent to enter the premises at reasonable times and upon reasonable verbal or written (at Owners sole option) notice for the purpose of making necessary repairs, or to show the promises to prospective Leer, purchasers, or mortgage's, or to see if premises is being kept in conformance with this agreement. For ttrese purposes, 24 hours is deemed reasonable and acceptable notice. 11. INDEMNIFICATION: Under no circumstances will Owner be liable for any damage or injury to You , or any other person, or to any property, occurring on any part of the premises. You agree to hold Owner harmless from any claim for damages, no matter how caused, and you also agrees to indemnify Owner for any and all damage, losses or injury occurring on or because of the premises for which claim is made against the Owner or premises including, but not limited to, costs and attorneys fees incurred in defending against any claims or in enforcing this agreement. 12. PHYSICAL POSSESSION: If Owner is unable to deliver possession of any or all the premises on the start date of the term, Owner won't be liable for any damages that result. This will also not cause this agreement be void or void-able, except at Owners sole option, but you will not have to pay any LP payment for the undeliverable part until possession is delivered. If this agreement applies to property which is new construction, possession shall be considered to have bom delivered on the day after Certif cafe of Occupancy (if required) is received by Owner, or the date Owner notifies you the property is substantially completed if no Certificate of Occupancy is required by the municipality. You may terminate this agreement if full possession is not delivered within 180 business days of the start of the term and all option consideration paid shall be refunded. Any delay in the delivery of physical possession shall not extend the end date of the berm or the option expiration date. Your LP payment obligation will start on the daft of the start of the term according to Clause 1 above, or the daze of the acquisition of any required certificate of Occupancy, or the date Owner notifim you the property is substemially completed if no Certificate of Occupancy is required by the municipality, whichever is later, regardless of when you actually move in. r? the terms and conditions contained in this entire agreement eve mad? ly d ptand m d ? Da h 10. May 15'08 02:28p Dave Miller 717 932 9578 pA 13. DEFAULT: It shall be a defauh under this agreement if You fail to (1) pay the full LP payment or any other payment required by this agreement when due, or, (2) perform any duty, obligation, or fulfill any responsibility required of You by this agreement within 3 days of verbal or written notice of any such default. In the event of any such default, as sell out in this section 13.(2) YOU MAY CURE THE DEFAULT BY PERFORMINO WITHIN THE THREE DAYS. AS TO ALL OTHER DEFAULT, IT SHALL BE NON CURABLE AND the Owner, at his sole option, may terminate all your rights under this agreement, there is no notice required and no cure period for a default resulting from non-payment or late payment of the LP payment). In the event of a default by you lasting more than 3 days, Owner may elect to (a) continue the lease in effect and immediately accelerate all payments due along with costs and fees provided herein, (without the right to purchase) and enforce all rights and remedies belonging to Owner under this agreement; including the right to recover the LP payment as it becomes due, or (b) at any time, terminate all of your rights under this agreement and recover from LPer all damages incurred by reason of your bleach of the lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease, even if your default be remedied after 3 days from the effective date of notice. Actual damages for the remarketing of the property shall be deemed to be 6'/e of the option price, plus all loss of rent and any get ready costs and costs of collection incurred by Owner until a new buyer or Leer is found. Pending an accounting of actual damages, liquidated damages in the event of a default shall be deemed to be 1;8000.00 plus costs of collection and may be pursued at Owners sole option in addition to other actual damages. 14. ABANDONED PROPERTY: If you abandon or vacate the property, while in default of the payment of LP payment, Owner may consider any property left on the premises to be abandoned and may immediately dispose of the same in any manner and/or at Owner's sole option, retain full and complete title to the property abandoned without any notice to LPer. In the event the Owner reasonably believes that such abandoned property has no value, it may be discarded. You agree that all property on the premises is subject to a lien in favor of Owner for the payment of all sums due hereunder to the maximum extent set forth in this Agreement. 15. WAIVERS: No failure of Owner to enforce any term of this agreement shall be downed a waiver of that term currently or in the future, nor any other term contained in this agreement. Specifically, the acceptance of partial payment of LP payment or any other payment required by this agreement shall never be deemed a waiver of Owners right to the full amount due. 16. NOTICES: Any notice, which either patty may or is required to give may be given by hand delivery or by mailing the same first Class Mail postage prepaid to LPer at the premises or by posting conspicuously on the front entrance of the premises, or to Owner by both regular and Certified Mail, postage prepaid to both addresses shown below or at such other places as may be designated by the Owner from time to time. Notice to Owner shall be deemed to have been given upon the day showing on the signed cerdfred mail return receipt. 17. NON-MODIFICATION: Acceptance of partial payments or a late payment by Owner shall not modify this agreement. 1 s. Im1RS, ASSIGNS, SUCCESSORS: This lease is bi xbg upon and inures to the benefit of the heirs, assigns, and successors in interest to both the Owner and You , except as precluded by Paragraph 7 herein. 19. TIME: Time is ofthe essence to this agreement. This means all dates and time frames must be honored strictly. UW% ? fianQ and ?agrne to the terms and conditions contained in this entire agreement May 15 08 02:29p Dave Miller 717 932 9578 p,5 20. HOLDING OVER If you do not exercise the purchase option and you want to stay after the end of the term of this agreement is expired, then with the consent of the Owner, your staying will be a -month-to-month tenancy with the other terms of the agreement, except the purchase option provision, remaining unchanged. When you want to end the month to month tenancy you must give 60 days written notice from the first of the month to Owner. You must give 60 days notice ofyour intention to vacate prior to the end of initial term. Your failure to provide such 60 days notice shall be considered your application for holding over month- to-imonth tenancy in accordance with this clause. No such holding over or extension of this lease shall extend the time for the exercise of the purchase option unless otherwise agreed upon, IN WRITING, by Owner. 21. ATTORNEY FEES AND COSTS: In any action or proceeding involving a dispute between Owner and LPer to enforce the terms and conditions of this lease with option to purchase, or to recover possession of the premises from Leer, the Owner shall be entitled to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in coiniecaon with such action or proceedings in the amount of 5% of the option price or the actual fees, whichever is greater. 22. OPTION: So long as Leer is not, AND has not ever been at any time, in defau It in the performance of any terns of this lease, LPer shall have the option to purchase the premises for a PURCHASE PRICE OF $129,900 phis all costs of Owner placing permanent financing to carry this for you, and any prepayment penalty required by Owners underlying lender at the time Lper exercises their option to purchase under the following TERMS and CONDITIONS: A. Each time the current LP payment (as adjusted from time to time by the terms of this agreement) in the LP payment envelope is postmarked by the due date and mailed to the Owner, or electronic payment is made on or before the due date, You sbal l be entitled to a 9.99%APR 30 yr amortization credit toward the purchase price, when exercising the option to purchase. In the event that Owner's interest rate rises on any mortgage he has on the property while you are leasing it, your LP payment and/or amortization credit (at Owners sole option) will change, to reflect the increase. Depending on your start payment, you may have an initial negative amortization credit: B. Your option to purchase cannot be sold or assigned without the Owner's written permission. You may not sublease the premises without the Owner's advance written permission. Permission to sell or assign the option, or sublease the premises, may be unreasonably withheld by Owner. C. If there is any default of any of the terms of this agreement that is not cured under the terms of this agreement or if it shall becane necessary to evict the LPer for any reason or if the LPer does not exercise ifs purchase option, the LP payment amortization calculation credit is canceled. D. When the purchase option is exercised the property shaft be conveyed in its then "as is" condition with no warrantiestrepresentations or guarantees by Seller. E. The nonrefundable option consideration shall be credited to buyer's purchase price along with any LP payment amortization credit owned when the option is exercised. Except as expressly set forth in this agreement; NEITHER THE OPTION CONSIDERATION NOR THE LP PAYMENT AMORTIZATION CREDIT IS REFUNDABLE UNDER ANY CIRCUMSTANCE. F. You are responsible to arrange your own financing forthe purchase price if you exercise yqur purchase option. UWe ve read an ly erg an agree to the terns and conditions contained in this entire agreement May 15 08 02:29p Dave Miller 717 932 9578 p.6 6 G. If any payment was lace for any mason whatsoever, the Owner, at his sole option, may elect to increase the LP payment and/or interest rate for calculation of any amortization credit by 10% for each year in which there is any lade payment, without further notice to you. H. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to increase the option price by 10% for each year in which there is any late payment, without further notice to you. J. On _1/112010 the monthly payment (before adding 1/12 the estimated annual taxes and insurance) will increase by $150 and will increase $50 on January 1 of each year thereafter, 23. DISCLAIMER: You acknowledge that there is no way to know what the availability of financing, total purchase costs, and lenders prepayment penalties will be at the time you may decide to exercise your option to purchase. Therefore, you agree that these items shall not be conditions of performance of this agreement and you agree that you have not relied upon any representations or warranties of Owner, his agents, brokers, affiliates, or other parties, in regard to these issues. 24. FIXTURES: All improvements, frxtuu % attached floor coverings, draperies including hardware, shades, blinds, window and door screens, storm sash, combination doors, awnings, and items permanently attached, shall be included, unless specifically excluded here NONE 25. ENCUMBRANCES: Leer shall take titk to the premises subject to (1) Real Estate Taxes not yet due and (2) Covenants, conditions, restrictions, reservations, rights, rights of way and easements, if any. 26. EXAMINATION OF TITLE: You will have Fifteen (15) days after you notify Owner ofyour iatention to examise the option to purchase to order at your own cost, from a title company approved by Owner at Owner's sole discretion, and examine the title to the property and to report in writing any valid objections you have. Any exceptions to the title, which would be disclosed by examination of the record, shall be deemed to have been accepted unless you report them within the allowed fifteen (IS) days. If you object to any exceptions to the title, Owner may, at his sole option, use all due diligence to remove such exceptions at his own expense, within ninety (90) days after receiving your report in writing. But if such exceptions cannot be removed within the ninety (90) days allowed, or if Owner elects not to remove such exceptions, all rights and obligations hereunder may, at your option, terminate and end unless you elect to purchase the property subject to such exceptions. 27. CLOSING COSTS: At closing, You will pay all transfer tax, title fees and other closing costs. 28. PRORATIONS: All LP payments, taxes, premiums on insurance, and other expenses of the property to be prorated as of possession by You. hd and agree to the terms and conditions contained in this entire agreement 15-N-015 VA01 May 15 08 02:29p Dave Miller 717 932 9578 p.7 29. EXPIRATION OF OPTION: This option may be exercised at any time after _ 5115108 and shall expire at midnight-12131/09 . After the expiration date of the option, this agreement shall be a lease only. Owner will have no further obligation to you related to the option and you will have no more rights under the option, whether legal or equitable. After expiration of option, Landlord at it's sole option, may at any time give 90 days written notice to Lper and terminate the kase. 30. NOTICE AND EXERCISE OF OPTION: When you have decided to exercise your option to purchase you must mail a notice of your intention, together with an additional $1000 in option consideration, to the owner, at least 60 days prior to the expiration of this option. 7 If you have not defaulted on any of the terns of this agreement, when you exercise the option, the non-refundable option consideration and any credit due from the LP payment as noted in section 22 shall be credited to your purchase price and closing costs. 31. SEVERABUZ Y: If any part of this agreement is held to be invalid or unenforceable, in whole or in part, then that provision will be ineffective only to the extent of the invalidity or unenforeeability without in any way affecting the validity or enforceability of the remaining parts of this agreement. 32. JOINT AND SEVERAL LIABILITY: If any default occurs, each of you, if there be more than one, shall be jointly and severally liable under all terms of this agreement. This means each of you may be held responsible individually for payments of all amounts due under this agreement. 33. OTHER DEBT: As part of this agreement, You agree to incurNO ADDITIONAL DEBT without the written consent of Owner. You also agree to pay all present payments on time. If you do not pay all present payments on time, or you incur additional debt without the written consent of Owner, you will be in default of this agreement. You agree that Owner or his agent shall have the right at any time to obtain a credit report stWor employment and income source verification on you during the term of this agreement and any subsequent agreements or actions related to this agreement. 34. INSURANCE REQUIREMENTS: At all times Leer shall fully insure the promises for both physical damage and liability with the Owner as the primary insured pally. Coverage's to be minimum 5500,000 liability and option price. In the event Owner elects, at its sole option, to directly acquire insurance, LPer's payment shall be increased according to the cost of the insurance plus a 10% administration fee; in this case, Owner's policy will not cover your personal property or liability, therefore Owner inquires you to obtain a renters insurance policy to provide liability and contents coverage for you and your personal property and to name Owner as an additional insured on. your renters policy. 35. SALES TAX: You are responsible for all sales tax due if the State determines at some time that this is a taxable transaction. In the event of a determination that sales tax is payable on the LP payment, your payment will be adjusted accordingly. 36. VENUE: You agree that regardless of where this agreement was signed, that this agreement shall be treated for legal purposes as entered into at Owners main office in Lancaster County, PA and that any legal actions that resuh from this agreement shall be in the proper jurisdiction of the District Justice of Owners current office in Lancaster County, PA or the Courts of Common Pleas of Lancaster County, PA or the District Justice or Courts of Common Pleas where the property is located, at Owners sole option. Il1N have read ly un rid and a to the terms and conditions contained in this entire agreement ? h. 0. May 15 08 02:30p Dave Miller 717 932 9578 p.8 37. OWNERS TITLE: Owner, as referenced herein, may be equitable and may not necessarily be the "record" owner. There may also be other equitable partners but Owner signing below has authority to act for all partners, if any. 38. OWNERS UNDERLYING FINANCING Contingent upon Owner closing on the permanent underlying financing for Owner. In the event this does not close, this agreement, at Owners sole option, may be declared null and void 39. ENTIRE AGREEhUM- You acknowledge that this document contains the entire agreement between you and the Owner, bis agents, employees or related parties and that you have no other oral or written agreements with Owner or any other person or business related to this property. 40. LEGAL REVIEW: You acknowledge that Owner has recommended that you have this Agreement reviewed by legal counsel to make sure you understand the legal significance of all terms and conditions of this agreement and you have either A) done so; or B) waived this recommendation. You also acknowledge that this Agreement and all terns and conditions of it were open to negotiation and that you are satisfied with all tens and conditions, as they exist. 41. SUPERSEDING AGREEMENT: This agreement supersedes all others between the parties and any affiliates. Nothing in this clause shall preclude the final reconciliation of all tastes and insurance and any amortization credit due under preceding LP agreement, if any. If at any time, to facilitate Lper obtaining fuumcing, Owner and Lper enter into a simple sales agreement for the property, that sales agreement and any term within it shall never in any way supersede or modify the terms of this agreement All germs of this agreement shall supersede all berms of any sales agreement done for financing convenience purposes and the terms of this agreement shall remain in full force and effect at all times even when a lender is processing a loan under an additional sales agreement 42. BROKER DISCLOSURE: Douglas L. Zook is a Licensed RE broker functioning solely as a principle in this transaction. You agree there are no brokers involved in this transaction unless identified here NONE 43. AUTOMATIC PAYMENT: You agree that all LP and other payments required by this Lease can be taken from your bank account by autotnatic electronic withdrawal on their due dates. 44. PRE-OCCUPANCY: Should you, with Owners required permission, occupy the premises prior to the start of berm of this agreement, you will owe in advance an amount equal to 1130 of the monthly payment for each day you occupy prior to the start of the term. No amortization credit will accrue for this preoccupancy. 45. NOT AN INSTALLMENT SALE: You expressly agree that this is solely a lease with option to purchase agreement and shall never be construed to be an installment sales agreement under any circumstance. 46. RECORDING. Under no circumstances shalt Tenant record this lease. L wdlord may record at his sole option. 47. LEAD NOTICE: If checked here, this is a pm-1978 home and a lead notice is attached: We avr. read anndd?fuUy, upodw ? stand d_ ? the terms and conditions cnntRined in this entire agreement /?PrOUJ AA h. 11, May 15 08 02:30p Dave Miller 717 932 9578 p,9 9 48. MOLD. Mold is caused by moisture and certain types can be a hazard to your health. If you ever have a moisture problem, whether it be from a pipe leak, roof leak, flood, or any other cause it is extremely important to address it immediately. Please contact Owner immediately if any moisture problem develops so Owner can suggest ways to minimize the risk of mold developing so you can protect your home and your health. Owner will not be liable for any damage or injury to You , your invitees, or any other person, or to any property, related to mold. 49. CARBON MONOXIDE: Carbon Monoxide is a byproduct of combustion of fossil fuels such as natural gas which your home maybe treated with. If you do not keep your heat system and hot water heater maintained, carbon monoxide can be released into the home which can make you sick and can even kill you. It is your responsibility to keep your home maintained at all times including your gas systems to protect your heahh. While not required by law, Owner recommends you have a carbon monoxide detector operable in your home at all times. They can be acquired at the local hardware store for less than $50. Owner will not be liable for any damage or injury to You, your invitees, or any other person, or to any property, related to carbon monoxide. 50. .RADON: Radon is a naturally occurring clear and odorless gas that can increase your risk for certain kinds of cancer and other illnesses if the concentration is too high. High levels of radon are easily mitigated by a vent system. Owner makes no representations about the existence or non- existence of radon in this home. You are encouraged to satisfy yourself if you have any concerns about radon in your home. 51. WATER QUALITY It may or may not as yet be determined if your home win be dependent upon a public water supply or on a well. If it is or becomes dependent upon a well, Owner makes no representations or warranties as to the quality of water from the well, the measuresy equipment or costs which may be necessary to store, deliver or treat the water, in order for it to be suitable for domestic use and consumption. Under no construction of this agreement, implied or express, shall Owner be considered responsible for the ultimate quality or suitability of the water for domestic use. Water quality can change over time due to many environmental and uncontrolled factors. Water testing is readily available and LPer is encouraged to investigate and become satisfied as to any concerns about water quality in your home. It is solely the responsibility of Leer to do so, if desired, and LPer agrees to hold Owner harmless from any claims by LPer or claims by parties in possession by or through LPer, from all damages, costs and attorney fees, which may be applied to Owner as a result of such claims. 52. ARBITRATION CLAUSE: This Agreement shall be governed by and construed in accordance with the law of the State of Pennsylvania Any action to pursue eviction or regain possession and obtain judgment for rent liability and property damage may be pursued in the appropriate courts of said state, at the sole discretion of the Owner. Any other claims or action, by either party, to enforce or interpret this agreement and all other disputes under the agreement shall be resolved by binding arbitration in Lancaster, PA. Either party shall give notice according the notice prmisions of this agreement, sending the other a demand for arbitration under this clause. Both parties may agree on an arbiter or, if they canmot agree on an arbiter within 30 days of the date of the demand, each shall pick an arbiter within 45 days of the date of the demand. Those two picked arbiters shall choose a third arbiter within 10 days thereafter (55 days of the demand date) and the arbitration will proceed as directed by the arbiteds and as otherwise proscribed according to the Laws of said state. Time is of the essence and failure to timely join in the choice of arbiter/s, by either party, shall be conehrsively deemed a waiver of the right to choose and the matter will proceed under the single arbiter chosen timely. ana gree to e terms and conditions contained in this entire agreement YW_o ve read an=gtanated t? YP2-'. May I1 08 02:31p Dave Miller 717 932 9578 p.10 53. REPLACEMENT CONTRACT: Should Owner determine at 10 anytime that he wishes to partition the lease from the purchase option, Owner shall present you with the 2 separaw contracts with all material terms and conditions remaining substantially unchanged except for the partitioning ' and you agree to sign than within 10 days. Failure to do so shall constitute a default of this entire agreement and you will be required to pay all of Owners legal costs in enforcing this agreement. 54. Permanent foundation and move to another lot : LPer understands the home is not presently on a permanent foundation. At any time, with 30 days notice, Owner at it's sole option may elect to build a permanent foundation on this 1o4 or on one of the 5 other similar lots Owner has on Cranes Gap & Northview Rds, and move the home onto the permanent foundation. Leer understands they may be displaced for a few days during the move if elected by Owner. If Owner elects to move this house to a different lot, LPer agrees that the substitution of any of the following similar lots is acceptable. Cranes Gap Rd- 110,120,130,140, 204 and l Northview. By signing below, you acknowledge you have read and filly understand and agree to the terms and conditions contained in this entire agreement and that you have received a copy of this agreement. IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND HEREBY, TIM PARTIES HERETO HAVE AF'F1XED T`HEIR RESPECTIVE HANDS AND SEALS, THIS /i4?1 DAY OF _0? 2008 Witness Leer (SEAL) Witness -LPer (SEAL) Current address: 722 N. Pitt St_Cariisle Pa. 17013 ACCEPTANCE By signing below, the Owner accepts your offer and acknowledge Owner: Douglas L. Zook 480 Rurming Pump Rd std PO BOX 1750 Lancaster, PA 17601 Granby, CO 80446 Ronald D. Cederlund Laura L. Cederlund 120 Cranes Gap Road Carlisle, PA 17013 Damages to home discovered on 11/7/08 during in home inspection. Remove and replace carpet ....................................... .......................................... $2,000.00 Multiple coats kilz floor to kill smell from animal waste Odor is terrible ............................ ............................................................................ 750.00 Rebuild wall torn out between bathroom and bedroom, Framing, Drywall Trim, paint ........................................ ............................................. .................... 2,500.00 Repair water damage and mitigate any mold ................... .................................. 2,500.00 Repair broken pipe that caused water damage ................... ............................... 250.00 Total ............................................................................................ ..... $8,000.00 EXHIBIT Douglas L. Zook Real Estate 480 RUNNING PUMP ROAD LANCASTER, PA 17601 Phone: 717-735-0033 Fax: 717-735-0029 Ronald & Laura Cederlund 120 Cranes Gap Road Carlisle, PA 17013. January 15, 2009 Dear Mr. & Mrs. Cederlund: This is to provide you with a Statement of your Account Receivable under your, Residential Lease with Purchase Option Agreement. You have failed to make any payments since November 5, 2008 under the Agreement. You are in default of the monthly LP Payments for December, 2008 and January, 2009, utility payments, taxes, and insurance.payments required by the Agreement. A Statement of your account is as follows: STATEMENT 10/31/08 Balance forwarded 11/01/08 LP payment Due 11 / 01 / 08 11/05/08 PMT received CH# 18236 11/05/08 INV# CEDUTIL1108 Due 11/15/08 North Middleton Authority Sewer/Water 11/13/08 INV# CED 1 108UTIL Due 11/23/08 York Waste 12/01/08 LP payment Due IQ/ l/ 08 12/01/08 Late Fee as Per LP Agreement due 12/01/08 12/31/08 Late Fee as Per LP Agreement $3.00.@ 31 days 01/01/09 LP payment Due l/ 1/ 09 01/05/09 Late Fee as LP Agreement due 01 / 01 / 09 01/07/09 INV# CED010709UT due 01/17/09 01/13/09 INV# CEDINS08/09 9/28/08-9/28/09 01/13/09 INV# CEINS07/08 9/28/07-9/28/08 01/13/09 INV# CEDSCHOOL TAXES 7/l/08-6/30/09 01/13/09 INV# CED2008TAX North Middleton and County of Cumberland I/ 1 / 08-12 / 31 / 08(7.5monthsof$285.71) Attachment EXHIBIT .00 995.00 -995.00 182.30 143.35 995.00 100.00 93.00 995.00 100.00 93.49 386.00 128.67 1,068.67 176.02 TOTAL $ 4,461.50 Douglas L Zook Offices - 61, COMMONWEALTH OF PENNS /ANIA r:r)I INTV ()F• Mag. Dist. No.: 09-2-01 MDJ Name: Hon. PAULA P. CORREAL Address: 2260 SPRING RD SUITS #3 CARLISLE, PA Telephone: (717 ) 218-5250 17013-0000 ATTORNEY FOR PLAINTIFF : ANTRONY S. POTTER 114 N SECOND ST NARR.ISBURG, PA 17101 NOTICE C JUDGMENT/TRANSCRIPT RESIDENTIAL LEASE PLAINTIFF: NAME and ADDRESS OUGLAS L r 1 Z00=, D 480 RUNIaING PUMP RD LANCASTER, PA 17601 L -? vs. DEFENDANT: NAME and ADDRESS rC=8HLMW' RONALD D, ST AL. 120 CRANES GAP RD CARLISLE, PA 17013 L J Docket No.: LT-0000191-08 AAA - Date Filed: 12/11/08 Zwfffim Fill THIS IS TO NOTIFY YOU THAT: Judgment: FOB PL3?=IFF ® Judgment was entered for: (Name) ZOOS, DOUGLAS L Judgment was entered against CEDERLUM, RONALD D in a ?Z Landlord/Tenant action in the amount of $ 8,161.78 on 12/24/08 (Date of Judgment) The amount of rent per month, as established by the Magisterial District Judge, is $ 995.00. The total amount of the Security Deposit is $ .00 Total Amount Established b ess • Security Deposit Appl Rent in Arrears $ MDDJ H95.0y - $ ' h= Physical Damages Leasehold Property $ 6,679,35- $ .00= II?A{ER/SE WER/ TI?A644 $ 325- 65 -1 -0(1 = Less Amt Due Defendant from Cross Complaint - Interest (if provided by lease) L/T Judgment Amount F Attachment Prohibited/ Judgment Costs 42 Pa.C.S. § 8127 Attorney Fees FIThis case dismissed without prejudice. ® Possession granted. H Possession granted if money judgment Possession not granted. Total Judgment Post Judgment Credits Post Judgment Costs Certified Judgment Total Adjudicate 9?m5 %o $ 5 $ 6,679.35 $ 325_65 $ _00 $ _00 $ 8,000_00 $ 161.79 $ _00 $ 8,161.78 $ Defendants are jointly and severally liable. IN AN ACTION INVOLVING A RESIDENTIAL LEASE, ANY PARTY HAS THE RIGHT TO APPEAL FROM A JUDGMENT FOR POSSESSION WITHIN TEN DAYS AFTER THE DATE OF ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. THIS APPEAL WILL INCLUDE AN APPEAL OF THE MONEY JUDGMENT, IF ANY. IN ORDER TO OBTAIN A SUPERSEDEAS, THE APPELLANT MUST DEPOSIT WITH THE PROTHONOTARY/CLERK OF COURTS THE LESSER OF THREE MONTHS RENT OR THE RENT ACTUALLY IN ARREARS ON THE DATE THE APPEAL IS FILED. HOWEVER, LOW-INCOME AND/OR SECTION 8 TENANTS SHOULD REFER TO Pa.R.C.P.M.D.J. No. 1008 OR 1013 FOR DIFFERENT PROCEDURES REGARDING THIS DEPOSIT. IF A PARTY WISHES TO APPEAL ONLY THE MONEY PORTION OF A JUDGMENT INVOLVING A RESIDENTIAL LEASE, THE PARTY HAS 30 DAYS AFTER THE DATE OF ENTRY OF JUDGMENT IN WHICH TO FILE A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. THE PARTY FILING AN APPEAL MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THE NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COI OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IK-tHE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, 8 SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. - ?? y, ?V EXHIBIT 12, 1 &4 Date M21 i terrJDi certify a Is Is a rue an cqAv-tTTM o the rec o p I s con ping-the to gmen - 121 ? Date , Magisterial &%Tmission expires first Monday of January, 2012. SEAL AO 316A W VERIFICATION I verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made are subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. #739043v1 4116-01 CERTIFICATE OF SERVICE AND NOW, on January 15, 2009, I hereby certify that I have served a true and correct copy of the within Complaint upon the following person(s) by U.S. Mail, Postage prepaid: Geoffrey M. Biringer MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 Antho y S. Potter #7414830 4116-01 -TI t LJ . ; Ap Z 11 If DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL JURY TRIAL DEMANDED PETITION AND NOW Plaintiff Douglas L. Zook, by and through his undersigned counsel hereby petitions the Court to direct the Prothonotary to release escrowed rent paid into the Court on account of a residential lease and in support thereof avers as follows: 1. On or about December 30, 2008, the Defendants placed one-third of the monthly rent ($332.00) into escrow. 2. This escrow deposit represents one-third of the monthly rent adjudicated by the Magisterial District Judge in the above-captioned matter for December 2008. 3. Defendants failed to pay the additional two-thirds rent for December 2008 into escrow as required by Pa.R.C.P.M.D.J. 1008(c)(5)(b). Please direct the Prothonotary to release a check made payable to Douglas L. Zook to his undersigned counsel. Date: January 23, 2009 POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By Antho y S. Potter I.D. 5903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Douglas L. Zook #744055v1 4116-01 .. I CERTIFICATE OF SERVICE AND NOW, on January 23, 2009, I hereby certify that I have served a true and correct copy of the within Complaint upon the following person(s) by U.S. Mail, Postage prepaid: Geoffrey M. Biringer MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 A hony S. Potter #741483v1 4116-01 r R 1 cV, 7-j MCI s? rj DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants JURY TRIAL DEMANDED PRAECIPE TO TERMINATE SUPERSEDEAS TO: Prothonotary Kindly terminate the supersedeas entered in the above-captioned matter pursuant to Pa.R.C.P.M.D.J. 1008(c)(7) based upon the Defendants' failure to post the additional deposit of two-thirds of the monthly rent for December 2008 within 20 days of filing the notice of appeal. POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By Date: January 23, 2009 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL Antho S. Pottef I.D. 5903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Douglas L. Zook January 26, 2009, Upon confirmatin of failure of the appellant to deposit the monthly rent for more than thirty (30) days, the supersedeas is terminated. s R. Lo notary #744046v1 4116-01 CERTIFICATE OF SERVICE AND NOW, on January 23, 2009, I hereby certify that I have served a true and correct copy of the within Complaint upon the following person(s) by U.S. Mail, Postage prepaid: Geoffrey M. Biringer MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 Ant ony S. Potter #741483v1 4116-01 '? ? ..3% ? ..--, J??• ? ?„ ? ? ::L r DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMN CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL JURY TRIAL DEMANDED AND NOW Plaintiff Douglas L. Zook, by and through his undersigned petitions the Court to direct the Prothonotary to release escrowed rent paid into N PLEAS hereby Court on account of a residential lease and in support thereof avers as follows: 1. On or about December 30, 2008, the Defendants placed one-third of t e monthly rent ($332.00) into escrow. 2. This escrow deposit represents one-third of the monthly rent adjudic Magisterial District Judge in the above-captioned matter for Deceml 3. Defendants failed to pay the additional two-thirds rent for December escrow as required by Pa.R.C.P.M.D.J. 1008(c)(5)(b). 4. No judge has ruled on issue in the above-captioned matter. 5. On January 28, 2009, the undersigned counsel called Geoffrey Birin the Cederlund's to seek concurrence in the Petition. Attorney Birin? Petition. d by the 2008. into ;r Counsel for r concurs in this #746379v1 4116-01 WHEREFORE, Douglas L. Zook respectfully requests that the Court direct the Prothonotary to release the escrow monies in a check made payable to Douglas 4. Zook to his undersigned counsel. POWELL, TRACHTMAN, LO( CARRLE & LOMBARDO, P.C. By Anthonyy. Potter I.D. #75903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Douglas L. Zook Date: January 30, 2009 #746379v1 4116-01 CERTIFICATE OF SERVICE AND NOW, on January 30, 2009, I hereby certify that I have served a copy of the within Amended Petition to Release Escrowed Rent upon the f first class U. S. Mail, postage prepaid: Geoffrey Biringer, Esq. 401 E. Louther St., Suite 103 Carlisle, PA 17013-2625 and correct person(s) by adt?. - ?. , "/- '4? ?- Anthony S. otter -; ?.:. ?? :; ? s:? .. ? ': 4 ...? ?q ::.= F 1 ? ....,'. y ?.. i _ r DOUGLAS L.ZOOK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Docket No. 08- 7547 V. CIVIL ACTION - LAW RONALD AND LAURA CEDERLUND, JURY TRIAL DEMANDED Defendants To: Anthony S. Potter, Esquire (Attorney of Record for Douglas L. Zook) You are hereby notified to file a written response to the enclosed Answer t6 Plaintiff's Complaint with New Matter, Affirmative Defenses, and Counterclaims, within twenty (20) days from service hereof or a judgment may be entered against you . Date: February 6,2009 Y• Geoffrey M. Biringer, Esq. MidPenn Legal Services 401 E.Louther Street Carlisle, PA 17013 (717)243-9400 1. DOUGLAS L.ZOOK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Docket No. 08- 7547 V. CIVIL ACTION -LAW RONALD AND LAURA CEDERLUND, JURY TRIAL DEMANDED Defendants DEFENDANTS' ANSWER, NEW MATTER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS ANSWER 1. Admitted. 2. Denied in part. Defendants currently reside at 410 N. West Street, Carlisle, Pennsylvania, 17013. 3. Admitted in part. Prior to the May 15 Agreement, the parties entered into an Agreement For The Sale And Purchase Of Real Estate on May 10, 2008, part of which is attached hereto as Defendant's Exhibit"l," the balance of which Defendant intends to obtain through discovery. 4. Denied in part. The Agreement provided for a term of six and a half years, and taxes and insurance were only due if billed by the Plaintiff. 5. Denied. Defendants are not obligated under the Agreement unless the Owner sends them a bill and, as will be more fully set out in Answer, New matter, Affirmative Defenses and Counterclaims, Defendants received no bills and Plaintiff thereby waived his right to collect the said bills from the Defendants. 6. Admitted in part. Defendants also took possession in accordance with the terms and conditions of the May 10, 2009 Agreement (Exhibit "1"). J 7. Admitted that payments were not made, but denied that payments were due as is set out more fully below in New Matter, Affirmative Defenses and Counterclaims. 8. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof at trial. By way of further answer, and, as more fully set out below in New Matter, Affirmative Defenses and Counterclaims, all of the alleged damages, with the exception of the pet waste, were the direct result of conditions existing before the sale of the home to Defendants, that Plaintiff, his agents or employees, knew or should have known about before the sale, and, following notice from the Defendants, should have repaired immediately. As to the pet waste, Defendants were expressly authorized to have pets. Defendants thoroughly cleaned any pet waste there may have been from any and all surfaces of the home, at least to the extent they were allowed on the premises following their move-out on January 15, 2009. 9. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof at trial. 10. Denied. As is set out more fully in New Matter, Affirmative Defenses and Counterclaims below, the said damages were caused by pre-existing conditions and not the responsibility of the Defendants. 11. Denied. Defendants had the express written approval of an agent or employee of the Plaintiff, for pets. (Approval attached hereto as Defendants' Exhibit"2.11) 12. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof. By way of further answer, Defendants paid Plaintiff the exact sum of eight thousand dollars ($8,000.00) as Plaintiff claims in damages. 13. Denied. It is expressly denied that Defendants damaged the premises or failed to make requested repairs without good cause as is set out more fully below in their New Matter, Affirmative Defenses and Counterclaims. 14. Admitted that Defendants have not made payments, but denied that said payments are due, as set our more fully below in New Matter, Affirmative Defenses and Counterclaims 15. Admitted, but the allegations are irrelevant as Defendants' appeal is "de novo" from a Court not of record to the Court of Common Pleas. 16. Admitted, but the allegations are irrelevant as Defendants' appeal is "de novo," from a Court not of record to the Court of Common Pleas. 17. Admitted. 18. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof at trial. By way of further answer, Defendants were not responsible for any repairs and where any repairs were required, they were the responsibility of the Plaintiff as set out more fully below in Defendants' New Matter, Affirmative Defenses and Counterclaims. COUNT I-EJECTMENT 19. No response required. 20. Admitted that the Lease requires payment and that Defendants have refused payment, but denied that said payments are due as set out more fully below. 21. Admitted that the Lease requires payment and that Defendants have refused payment, but denied that said payments are due as set out more fully below. 22. Denied. As more fully set out below, Defendants have not defaulted on the Agreement, breached initially by the Plaintiff, in his sale of a defective home to the Defendants. 23. Denied. No payments are due as the Plaintiff failed to send Defendants any bills for taxes and insurance, thereby waiving the requirement. 24. Denied. Said waiver and the waivers contained in Paragraphs 8, 8(a),15, 23 and 54, and the indemnifications contained in Paragraphs 11 and 48, as set out more fully below, are against public policy and constitute a contract of adhesion due to the unequal bargaining power of the parties to the Agreement. 25. Denied that any of the allegations entitle the Plaintiff to possession, but the issue is irrelevant, as the Defendants vacated the premises on January 15, 2009. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed and judgment entered for Defendants. COUNT II-BREACH OF CONTRACT 26. No response required. 27. Admitted that Defendants failed to pay, but denied that said payments are due as set out more fully in Answer, New Matter and Affirmative Defenses below. 28. Denied. Defendants have paid all bills that they received as they became due. 29. Denied. Defendants owe no late fees as is set out more fully below in New Matter, Affirmative Defenses and Counterclaims. By way of further answer, the late fees constitute usury and are not collectible as an unenforceable penalty. 30. Denied. Any damages found to be due were the direct result of pre-existing defective conditions that Plaintiff knew or should have known about and not attributable to anything done by the Defendants. 31. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof. By way of further answer, and, as more fully set out below in New Matter, Affirmative Defenses and Counterclaims, all of the alleged damages, with the exception of the pet waste, were the direct result of conditions existing before the sale of the home to Defendants, that Plaintiff, his agents or employees, knew or should have known about before the sale, and, following notice from the Defendants, should have repaired immediately. As to the pet waste, Defendants were expressly authorized to have pets. Defendants thoroughly cleaned any pet waste there may have been from any and all surfaces of the home, at least to the extent they were allowed on the premises following their move-out on January 15, 2009. 32. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof. By way of further answer, Defendants paid Plaintiff the exact sum of eight thousand dollars ($8,000.00) as Plaintiff claims in damages. 33. Denied. As is more fully set out in New Matter, Affirmative Defenses and Counterclaims below, Plaintiff, by his own malfeasance and nonfeasance, is not entitled to any damages from the Defendants. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed and judgment entered for Defendants. NEW MATTER 34. Paragraphs 1-33 are incorporated herein by reference hereto. 35. Defendants made a down payment of $8000 to the Plaintiff with a pro-rata monthly payment of $495 for the month of May, 2008 and payments of $995 per month from June, 2008 through and including November, 2008. 36. Defendants stopped making monthly payments at that time due to unsatisfied complaints to the Plaintiff about the need for various repairs. 37. These complaints culminated in a letter to Plaintiff from Defendants' attorney dated July 15, 2008 listing the needed repairs. (Letter attached hereto as Exhibit"3" ). 38. Although some minor repairs were in fact made by Plaintiff, most of the repairs requested in the letter were not made, including, but not limited to: a. New furnace never installed (inadequate heat pump installed); b. Water lines never properly fixed; one sink totally unusable, kitchen sink leaked into cupboard; C. Home on blocks rather than foundation as promised; d. Electrical service never properly repaired as circuits kept blowing due to improper power surges damaging computer equipment and appliances; e. Hot/cold water lines reversed; f. Plumbing leaks never repaired; g. Deck not properly installed; h. No furnace or oil tank provided; i. No promised materials for painting, drywall or molding 39. As a direct result of the inadequate heating system provided by the Plaintiff, Defendants were forced to use space heaters for at least the initial month of their tenancy, and suffered a spike in their electric billing in the approximate amount of $332.70 over and above expected billings. 40. On or about November 2 , 2008, Defendants discovered that mold was growing behind the drywall in the vicinity of a leaky pipe in the drywall between the bathroom and their daughter's bedroom. 41. As a direct result of the presence of this mold growth, Defendants and their children went to Carlisle Hospital for diagnosis and treatment, complaining of shortness of breath, headaches, asthma, and dizziness, and were advised that the dwelling was not safe for habitation. 42. Defendants contacted the Plaintiff, or his agents/employees to report the problem, and Defendants authorized their attorney to send a second "demand" letter to the Plaintiff requesting necessary repairs, particularly for the "serious mold problem." (Exhibit attached hereto as Defendants Exhibit"4") 43. Plaintiff took no remedial action whatsoever, but to send his agents or employees to look at the problem. 44. In the interim, and without money to relocate, the Defendants closed off the rooms affected by the mold, while looking for a place to relocate. 45. Defendants believe that Plaintiff was aware of the mold infestation before he entered into Agreements with the Defendants and deliberately hid the severely deteriorated condition of the home from the Defendants. 46. Due to the mold infestation and the generally deteriorated condition of the leased premises as set out above, Defendants were forced to move from the premises and incurred moving and storage expenses in the approximate amount of $690.74. 47. Defendants vacated the leased premises on January 15, 2009, intending to return the next day to leave the premises "broom clean," and in at least the same condition in which they found it. 48. Defendants believe the Plaintiff changed the locks on the same day, preventing their access to clean and remove any possessions remaining on the premises. 49. As a result, Defendants lost a new set of Bose headphones worth $139.99. 50. In the May 10, 2008 agreement with the Defendants, Plaintiff obligated himself to supply paint and trim in exchange for Defendants' work before actual move-in, and promised to replace the furnace and repair the deck. 51. Defendants did the promised work and more, repairing an existing hole in the drywall, and expended $300 of their own money in the process on materials. 52. Plaintiff failed to reimburse the Defendants as promised. 53. Due to the failure of the Plaintiff, his agents or employees to take action regarding the Defendants' complaints as to active mold growth in the home, and the effect of said growth on the Defendants and their children, Defendants expended $550 for a "Wood Destroying Organism Report," attached hereto as Defendants' Exhibit "5." 54. As a direct result of the improper construction of the Defendants' deck and its placement on blocks rather than a solid foundation, Defendant Laura Cederlund fell off the deck and down the steps, breaking her arm. 55. Defendants have been damaged in the amount of money they used as a down payment ($8,000), monthly payments above $500 representing the actual value of the premises in their existing condition ($495 retroactive rent abatement for six months, or $2,970), $300 for materials to repair the premises prior to move-in as promised, excess electric in the approximate amount of $332.70, moving and storage costs of $690.74, headphones worth $139.99, mold diagnosis and report in the amount of $550 and an unliquidated amount representing the pain and suffering of their unnecessary exposure to harmful mold in the leased premises and for Defendant Laura Cederlund's broken arm caused by the improper construction of their deck AFFIRMATIVE DEFENSES I - ILLEGALITY- UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 56. Paragraphs 1-55 are incorporated herein by reference hereto. 57. By representing that the home in question was fit for its purpose, by listing some exceptions to fitness in the body of the Agreements, but not others such as the presence of mold, and by generally misrepresenting the quality of the home, causing confusion in the Defendants as to said representations, the Plaintiff has violated Pennsylvania'a Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-2(4)(ii)(iii)(v)(vii)(xiv)(xvi)(xxi). 58. Said misrepresentations were knowing and willful and were so blatant and disregardful of Defendants' health and safety that Defendants should be entitled to treble damages under the Act. WHEREFORE, Defendants demand setoff against any amount found to be due the Plaintiff, in the total amount of $38,950.29. II - FRAUD 59. Paragraphs 1-58 are incorporated herein by reference hereto. 60. Plaintiff, his agents or employees, knew of the presence of mold in the subject home and all of the deficiencies listed above when he entered into the Agreements with the Defendants. 61. Defendants relied on the Plaintiff's representations that the defects listed in Paragraph 8 of the May 15 Agreement and Paragraph 9, "Special Clauses" of the May 10 Agreement, were the only defects present in the mobile home. 62. Defendants have been damaged by their reliance on Plaintiff's misrepresentations in that much of the mobile home was rendered unusable, Defendants' family became ill as a result of the presence of mold and Defendant Laura Cederlund broke her arm as a result of the improper construction of the decking. 63. Plaintiff refused to make the necessary diagnosis and treatment of the mold problem and hid the presence of mold from the Defendants as well as the other deficiences listed above. WHEREFORE, Defendants pray that this Court setoff, against any and all claims that this Court may find due, the total amount of $38,950.29 III - UNCONSCIONABILITY 64. Paragraphs 1-63 are incorporated herein by reference hereto. 65. In presenting Agreements to the Defendants containing waivers such as those set out in Paragraphs 8, 8(a),15, 23 and 54, and indemnifications contained in Paragraphs 11 and 48, Plaintiff created contracts of adhesion which are against public policy due to the unequal bargaining power of the parties to the Agreement. 66. As a result of the unconscionability of Plaintiff's use of these Agreements, Plaintiff should not be permitted to benefit from his wrongdoing. WHEREFORE, Defendants pray that Plaintiff's Complaint be dismissed and judgment entered for the Defendants. COUNTERCLAIMS COUNT I-BREACH OF CONTRACT 67. Paragraphs 1-66 are incorporated herein by reference hereto. 68. Paragraph 48 of the lease, "MOLD," required that Defendants contact Plaintiff to advise him of the presence of mold and to receive suggestions as to remedial repairs. 69. Plaintiff, his agents or employees, following notice from the Defendants of the presence of water leaks in July, and mold in November, failed to suggest remedial repairs and failed to take any action whatsoever to diagnose and remedy the mold problem thereby breaching his agreement with the Defendants. 70. Plaintiff, his agents or employees failed to address or remedy any of the above- listed needs for repairs, thereby breaching his agreements with the Defendants. 71. Plaintiff failed to reimburse the Defendants for materials promised prior to their move-in, thereby breaching the agreements with the Defendants. 72. As a result of Plaintiff's breaches of the agreement with Defendants, Defendants have been damaged in the amount of money they used as a down payment ($8,000), monthly payments above $500 representing the actual value of the premises in their existing condition ($495 retroactive rent abatement for six months, or $2,970), excess electric in the approximate amount of $337.70, moving and storage costs of $690.74,mold diagnosis of $550.00, headphones worth $139.99, unreimbursed materials expenses in the amount of $300, and an unliquidated amount representing the pain and suffering of their unnecessary exposure to harmful mold in the leased premises. WHEREFORE, Plaintiffs demand judgment against Defendant in the amount of $12, 983.43 plus any other amounts this Court feels that the Plaintiffs are entitled to, said amounts requiring referral to arbitration. COUNT II - BREACH OF WARRANTY OF HABITABILITY 73. Paragraphs 1-72 are incorporated herein by reference hereto. 74. Due to the presence of mold in the leased premises, Defendants' resulting illnesses caused them to close off part of the leased premises and to open the windows in those rooms to provide ventilation. Defendants were unable to use several rooms in their home. 75. Despite notices to the Plaintiff, his agents or employees, to make repairs, Plaintiff failed to take any action whatsoever. 76. Despite repeated notices to the Plaintiff of the need for repairs, as set out above, Plaintiff failed to take any action to correct the deficiencies. 77. As a result, Plaintiff breached the implied warranty of habitability as it applied to the Defendants in the instant case. 78. Due to this breach of the implied warranty caused by the defects listed above and, most specifically, the presence of mold, from the inception of the lease/purchase agreement, the premises were worth no more than $500 at any time during the lease (May 15 to January 15) and, as a result, Defendants are entitled to the return of their deposit in the amount of $8000 and retroactive rent abatement in the total amount of $2,970 (6x $495). WHEREFORE, Plaintiffs demand judgment against the Defendant in the amount of $10,970 and any other amounts this Court feels the Plaintiffs are entitled to, said amounts being within the amount requiring referral to arbitration. III. COUNT III-UNFAIR TRADE PRACTICES 79. Paragraphs 1-78 are incorporated herein by reference hereto. 80. By representing that the mobile home in question was fit for its purpose, by listing some exceptions to fitness but not others such as the presence of mold, and by generally misrepresenting the quality of the mobile home, causing confusion in the minds of the Defendants as to said representations, the Plaintiff has violated Pennsylvan] a'a Unfair Trade Practices and Consumer ProtectionLaw, 73 P.S. §201-2(4)(ii)(iii)(v)(vii)(xiv)(xvi)(xxi). 81. Said misrepresentations were knowing and willful and were so blatant and disregardful of Defendants' health and safety and that of their children, that Defendants should be entitled to treble damages under the Act. WHEREFORE, Plaintiffs demand a judgment against Defendant in the amount of $38,950.29, said amount being within the amount requiring referral to arbitration. COUNT 1V-FRAUD 82. Paragraphs 1-81 are incorporated herein by reference hereto. 83. Plaintiff, his agents and/or employees, knew of the presence of mold and other deficiencies in the subject home when he entered into the Agreements with the Defendants. 84. Defendants relied on the Plaintiff's representations that the defects listed in Paragraph 8 of the Agreement and Paragraph 9 "Special Clauses" were the only defects present in the mobile home. 85. Defendants have been damaged by their reliance on Plaintiff, his agents or employees, and their willful misrepresentations concerning the alleged quality of the home. 86. Defendants' family became ill as a result of the presence of mold, and Plaintiff refused to make the necessary diagnosis and treatment of the problem. 87. Defendants were forced to relocate to get away from the problem and incurred moving and storage expenses as a direct result. WHEREFORE, Plaintiffs pray that this Court award Plaintiff damages in the amount of $38950.29, representing their total investment in the home as set out above, plus any other damages this Court believes the Plaintiffs are entitled to, all being within the amount subject to referral to arbitration. Date: 0'? 40 ? O ? MIDPENN LEGAL SERVICES A BY: Geoffrey M.Bi nger 401 E.Louther Street Carlisle, PA 17013 (717)243-9400 Ex. Ill n AGREEMENT- FOR THE SALE, AND PURCHASE OF REAL ESTATE This "form ??for; but t rewictv&'t6, use by' members; b ,"oki" , ft?i?' bi"' R?;XT'tY?it ? ....,z ? r.r%V'A Ct.f T T:D ' `&Tla Ar.riJT lFttitt 4'FT'1.i?: z AGENT FOR BUYER t T?F • 1 1 yelS k A:: r PA'°LICENSED $ROKER /,7Ae ' "Y'G S a? V^ a di 1Z. ntaw yr LVJJ: (a) Seller shall maintain the property (including all items mentioned in paragraph k11 herein) and any personal property specifically scheduled herein in its present condition, • normal wear and tear excepted. (b) Seller shall bear risk of loss from fire or other casualty until time of settlement. In the event of damage to the property by fire or other casualty, Buyer shall have the option of rescinding this agreement and receiving hand money paid on account or of accepting the property in its then condition with the proceeds of any insurance recovery obtainable by Seller. Buyer is hereby notified that he may insure his equitable interest in this property as of the time of the acceptance of this agreement. 16. REPRESENTATIONS: It is understood that Buyer has inspected the property, or hereby waives the right to do so and he/she has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by the Seller or any other officer, partner or employee of Seller, or by the agent of the Seller or any of the latter's salespersons and employees, or by a cooperating Broker, if any, or any of his/her salespersons and employees and that he/she has agreed to purchase it in its present condition unless otherwise specified herein and further acknowledges that the aforementioned parties are not qualified to render an opinion on construction, engineering, or environmental matters and that the buyer has been advised that he/she may require or wish to seek the assistance of experts in those fields. It is further understood that this Agreement contains the whole agreement between the Seller and Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement shall not be altered, amended, changed or modified except in writing executed by the parties her::to. 17. RECORDING: This agreement shall not be recorded in the Office for the Recording of Deeds or in any other office or place of public record, and it Buyer shall record this agreement or cause or permit the same to be recorded, Seller may, at his/her option, elect to treat such act as a breach of this agreement. 18. ASSIGNMENT. This Agreement shall be binding upon the respective heirs, executors, administrators, successors and, to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that the Buyer shall not transfer or assign this Agreement without the written consent of the Seller being first obtained. 19. NON-LIABILITY OF AGENT: Except as may be provided by a separate agreement or addendum to this Agreement, Agent(s) or Sub-Agent(s), if any, are representing Seller, not the Buyer. It is expressly understood and agreed between the parties hereto that the herein named agent, his/her salespersons and employees or any officer or partner or agent and any cooperating broker and his/her salespersons and employees and any officer or partner of the cooperating broker are acting as agent only in bringing the Buyer and Seller together, and will in no case whatsoever be held liable jointly or severally to either party for the performance of any item or covenant of this Agreement or for damages fot the nonperformance thereof. 20. DEFAULT - TIME IS OF THE ESSENCE: The said time for settlement and all other items referred to for the performance of any of the obligations of this Agreement are hereby agreed to be of the essence of this Agreement. Should the Buyer: (a) Fail to make any additional payments as specified in Paragraph 4, (b) Furnish false or incomplete information to the Seller, the Seller's agent, or the mortgage lender, concerning the Buyer's legal or financial status, or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment, or (c) Violate or fail to fulfill and perform any of the terms or conditions of this Agreement, then in such case, all deposit monies and other sums paid by the Buyer on account of the purchase price, whether required by this Agreement or not, may be retained: (i) by the Seller on account of the purchase price, should the seller demand the full purchase price, or (ii) as monies to be applied to the Seller's damages, or (iii) as liquidated damages for such breach, as the Seller may elect, and in the event that the Seller elects to retain the monies as liquidated damages in accordance with Paragraph 20(c)(iii), the Seller shall be released from all liability or obligation as this Agreement shall be NULL AND VOID. 21. RECOVERY FUND: A real estate recovery fund exists to reimburse any persons who has obtained a final civil judgment against a Pennsylvania real estate licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who has been unable to collect the judgement after exhausting all legal and equitable remedies. For com- plete details about the fund, call (717) 783-4854. 22. REAL ESTATE DISPUTE RESOLUTION SYSTEM: Any dispute or claim arising out of or relating to this Agreement, the breach of this Agreement or the service provided in relation to this Agreement shall be submitted to mediation in accordance with the Rules and Procedures of the Real Estate Dispute Resolution System. Disputes shall include representations made by the buyer, seller, or any broker, agent, subagent, or other person or entity in connection with the sale, purchase, financing, conditions, or other aspect of the property to which this Agreement pertains including, without limitation, allegations of concealment, misrepresentation, negligence and/or fraud. The provisions of this paragraph relating to mediation shall survive settlement on the subject property or earlier termination of this Agreement. Buyer and seller acknowledge that they have received, read, and understand the standard announcement brochure and rules and procedures for the Real Estate Dispute Resolu- tion System. 23. DESCRIPTIVE HEADING: The descriptive headings used herein are for convenience only and they are no, intended to indicate all of the matter in the sections which follow them. Accordingly, they shall have no effect whatsoever in determining the rights or obligations of the parties. 24. AGREEMENT: THIS AGREEMENT CONTAINS THE WHOLE AGREEMENT BETWEEN THE SELLER AND BUYER. THERE ARE NO OTHER TERMS, OBLIGA- TIONS, COVENANTS, REPRESENTATIONS, STATEMENTS OR CONDITIONS, ORAL OR OTHERWISE, OF ANY KIND WHATSOEVER CONCERNING THIS SALE, EXCEPT AS ATTACHED TO THIS CONTRACT. [Do Not Write in This Space] TThit is a legally binding contract; if not understood, coli.sult your atfornei !c Statement: This Docuir,ent may be , ,e utec b . bu ie, o: Sr!ier an a e: .'.e oche: Meta:, r, n y?aUMM h .,indmi ... houg': ex,-rated H,r _ ;c ,t, o r .,<. .. :t . . , .. vXtB! BC.1Ls;:;.<;wu v: f. .i;pt: _ -:ier; i.. _ t.: t t ; Ind, 2r._ s ea!, I h 4, a fu s h ; w : t _-r J?l , . . .,,PP tOV.L 91 SELLE1t: Sellers? here;, appr-wes con„act cis -- u:: of WITNESS AS TO SELLEk SELLER - AGENT BY: SELLER (SE.ALt ___-- (SEAL,, HSA '16 3/9E Ex. "2" AWnrtAssacfate OF LANCASTER, INC. 7 2114 r TITLE INSURANCE & SETTLEMENTS 1903 Lititz Pike, Lancaster, PA 17601 Telephone: 717-581-58411 Court House: 717-509-40951 Fax 717-581-5845 JAN-30-2009 13:33 From: To:2438026 P.1/2 Ex:13" lid III1? Mid.Penn Legal Services 401 E. i.outher Sheet, 5uit4:103, Carlisle, VA 171111 717-243.94110 FAX 7'17-243 8Q2ti TAI-Free 4111)-822-5268 www.m idpP.nn.nrg July 15. 2008 Douglas L. "Look, Owner Oakwood Homes 480 Running Pump Road Lancaster, PA 17601 Re: Laura and Ron Cedcrlund 120 Crane's Gap Road Carlisle, PA 17013 Dear Mr. Look: Please he advised that f represent the above individuals who are in the process of buying the above home with a Lease/Purchase Option. While the Cederlunds are generally pleased with their home and their bargain, they have some issues with necessary repairs that they have brought to the attention, initially of have Miller, and then, at his request, to a "warranty work" phone number at 735-0030. Not having received any satisfaction with this approach, they have w;ked me to write to you with their concerns in the hope of an amicable resolution. These concerns are as follows: 1. Central air not working; 2. New furnace not installed; 3. Water liners not functional; 4. Home on blocks rather than on foundation as promised; 5. 200 amp service not finished (electrician on site three times, but did rtot finish the work or put in furnace; 6. Hut water hooked up to cold; 7. Leaks in plumbing; 8. Decks not installed where they belong; 9. No oil tank for furnace; 10, No materials for the work purchasers are to do to paint, put up drywall and molding; 11. No trash pickup for 3 weeks. „?! LSC JAN-3072009 13:33 From: To:2438026 P.2/2 I would appreciate if you would schedule these repairs at your earliest convenience. Thank you fur your kind attention and anticipated cooperation. cc: Cederlunds Sincerely, r Gcofficy M. Biringer Ex. "4" (3 pages) X11111 7, 1: x..3.1. r ..._.. November 12, 2008 Douglas L. Zook 480 Running Pump Road Lancaster,PA 17601 Re: Ron and Laura Cederlund 120 Cranes Gap Road Carlisle, PA 17013 Dear Mr. Zook: As you may recall, I represent the above individuals purchasing one of your homes on a lease/purchase option. It recently came to their attention that water leaks from the shower caused a serious mold problem. The health of the parents and children has been impaired to the extent that they recently went to the hospital. All are ill, but most prominently, a child with asthma. I am enclosing, for your review, a copy of an estimate from a contractor to begin repairs, as well as a note from the hospital advising my clients to remove themselves from the premises which they are in the process of doing. I am asking you to make the necessary repairs to this home within one week of the date of this letter or refund the money the Cederlunds have invested in this home. If you do not do so quickly, because of the stated health hazards to the family, I will advise them to take the appropriate legal action against you. Thank you for your attention and anticipated cooperation. Sincerely, Geoffrey M. Biringer 11 LSC } Page f6 ... of pages Proposal Submitted To: Job Name Job # Ul. Address , t r t Job Location. f ! 4 i4 ' j • f. ,r Date _ i Date of Plans Phone # / .L/ :J ?~ Fax # Architect U We hereby submit specifications and estimates for ?i _ ?st" ?-, ',C At 1), We propose hereby to furnish 'material and labor- complete in accordance with the. above specifications for the sum of: 016 d . Dollars '75 1 ith payments to. be made as follows:. n v r'c7 ; r1 U D o?,' , r' e s4 D {j ; dj LO h y alteration or deviation from above specifications involving extra costs will be Respectfully ecuted only upon written order, and will become an extra charge over and submitted e the estknate..All Agreements coliHngent upon strikes; accidents, or delays °"rco"'uOi Note - this proposal maybe withdrawn by us f( not accepted-within days. Ocapta mt of VrI OPO I e above prices, specifications and conditions are satisfactory and are Signature 'BI EXH "y accepted, You are authorized to do the work as specified. yments will be made as outlined above. iF . Ate of Acceptance Signature ?disJe Reaionai Medical Center -- Emerctency Department 1 Alexander Spring Rd Carlisle, PA 17013 -- (717) 960-1695 MINEYM A Patient: Cederlund, Laura Disch: 11/7/08 8:47am MD ED: Jean-Paul Romes, MD Medical Record: 190919 3es/PA/NP: 'ERCARE INSTRUCTIONS 'e are pleased to have been able to provide you with emergency care. Please review these instructions when you return home in der to better understand your diagnosis and the necessary further treatment and precautions related to your condition. Your agnoses/prescriptions today are: Dx #1: Nausea (without Vomiting) Dx #2: Headache Dx #3: Environmental Exposure to Mold GENERAL INSTRUCTIONS _ Rest in bed for days. _ Take prescribed medication(s) as directed. _ If you are not allergic to them, you may take acetaminophen (Tylenol) or ibuprofen (Advil) to help relieve any pain. 1 SPECIFIC INSTRUCTIONS: 1 U n?? l '?v? lire X14 11 L you are not feeling better within 1 to 2 days, call your doctor. SEEK IMMEDIATE MEDICAL ATTENTION IF existing symptoms get worse or new symptoms develop; such as chest pain, difficulty breathing, vomiting, belly pain, unusual sleepiness, confusion, convulsions, blurred vision, difficulty walking, a fever, cough, dry mouth, stiff neck, headache or you pass out. In small children also look for poor feeding, sunken eyes, decreased urination, a rash or increased irritability. General Information on HEADACHES I There are many different kinds of headaches. "Tension headaches" come from a tightening of the scalp muscles. This often results from stress or lack of sleep. "Migraines" are a particularly painful kind of headache caused by the temporary opening and closing of certain blood vessels in the brain. Still other headaches can be caused by coughing, smoking, hay fever or simply the common cold. Some headaches last for just a few minutes and some drag on for days. Fortunately, most everyday headaches are relatively mild and last less than 24 hours. Sometimes a careful medical examination shows the cause of a headache, but sometimes it does not. In the emergency room, it may not be possible to find the exact cause of a particular headache. What are the risks? Most everyday headaches pet better over several hours and do not produce any serious medical problems. There is, IF , W Ex. 11511 '; OO OrST;ROYI G :_')RGANISM REPOR T ??is s ??Oi a str-c:t4;rai aamagE repot';. SECTION 1 '?envrai information Inspection Address I,, G aA VrS A AfP C,, "r' 17G?i - --- Inspection Company GLADHILL PEST CONTROL INC. inspector. GEORGE KING Co. Address P.O. BOX 41 STATE LINE, PA 17263 Co. Phone No. 717-597-1040 -.E ,,I , 11 inspection Findings This retort is indicative of the condition Of the Subject structure(si ON THE JAT E_ OF TH iNSPE?CT! C'Iv is I a-Q i t t :• as an express or implied warranty or guarantee against latent, concealea, or future defects. Any such warranty or sere cr a? r1 °1:? i_= provi le future treatment or inspections may be provided as -3 separate attachme i. Based on a careful visual inspection of the readily accessible areas of the struC?Ure':,S) inspected: A. NO VISIBLE EVIDENCE OF WOOD DESTROYING FUNGI WAS OBSERVED -- B. VISIBLE EVIDENCE OF WOOD DESTROYING FUNGI WAS OBSERVED AS F A LOWS : W IU1 iW-t-ta .M'? I? F'd ; ? f /?t yVteL V j'Lt3M l 7 '?4` l i?'?-''' .tiT t +? SlG?1P?tcaN) r Fungi observed: (description and location) Any fungi observed appears:- Active Inactive Treatment Recommended?? Damage from wood destroying fungi was noted in the following area(s): ctt W.et.. j- fl -.w +vtn+? is ed +' An r ?? ?' ? f'.1ac??1 Ill 1N'liar y23 ,-, t?1.1 *aG-' y7?F5 4 /YC t??awr- c?M 1l ;N ,3tls^ .3 r..7;Ur - ?x?r3 f-ifit'„ Obstructions and Inaccessible Areas -The following areas of the structure(s) were obstructed or inaccessible: ? Basement The inspector may write out obstructions or use the V Crawispace 1D _ the following optional key: I' Main Level f • °rTI (j _ 1. Fixed Ceiling ? 2. Suspended Ceiling ? Garage _ 3. Fixed Nall covering Exterior 1 4. Floor Covering 9. Appliances t C. No access or entry 11. Limited Access 17. Exterior Siding 13. 101indosi vvell coves 9. 10lood Pile '12. No Access Beneath 20. Snow ? Porch 5. Insulation 13. Only Visual Access ? Addition 6. Cabinets or Shelving 14. Cluttered condition ? Other 7. Stored Items 15. Standing Water 8. Furnishings 16. Dense Vegetation 21. Unsafe ;ondition5 22. Rigid Foam Board 23. Synthetic Stucco 24. Ductwork, Plumbing And;or wiring Regarding visible evidence of wood destroying fungi: The inspector may find wood which has been damaged by fungi. Any damage noted should be considered only as evidence of current or previous activity of wood destroying fungi. If Box B is checked above, IT SHOULD BE UNDERSTOOD THAT SOME DEGREE OF DAMAGE, INCLUDING HIDDEN DAMAGE, MAY BE PRESENT. The inspector's training and experience do not qualify the inspector in damage evaluation or any other building construction technology and/or repair. r-__- ----- There is evidence of the presence of excessive moisture conditions in untreated wood as follows: n_Alf? +A 'A*% 44 J_ xSC4 Gam, W A4" 6.v 0:1, .1Z4.4zr.7 Signature of Inspector. Neither I nor the company for which I am acting have had, presently have, or contemplate having any interest in the property. I do further state that neither I nor the company for which I am acting is associated in any way with any party to this transaction. Signature of Inspector Certification or Registration No. (if applicable) Date of inspection ILI i"1=1 W VERIFICATION We, LAURA CEDERLUND and RONALD CEDERLUND, make this verification that the facts set forth in the foregoing Complaint, are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: ?! <? p Date: ,> /gym9 Laura Cederlund Ronald Cederlund CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing DEFENDANTS' ANSWER, NEW MATTER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS on this 6th day of February, 2009, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Anthony S.Potter, Esquire 114 N. Second Street Harrisburg, PA 17101 MIDPENN LEGAL SERVICES By: Geoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 --rt c39 -c'i r, cr ,'~ JAN 2 7 2009 61 41 DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL JURY TRIAL DEMANDED ORDER 11 rr A ?1? v?? ca,sc162Eccr, c 2- e-4 d The Prothonotary is hereby directed to ielease the escrowed rent in the above-captioned IpQ?i C)s 2,.,_?tz matter with a check made payable to Douglas L. Zook to his legal counsel, Anthony S. Potter at 1 Powell, Trachtman, et al, 114 N. Second Street, Harrisburg, PA, 1710 L. So &-TACA TO ?ovusDffiG£ C=??zs pvTHak424:1 9r Lob-3 #744056v1 4116-01 C'V _ uj a- ? W L LL- ? N ? disc ORRMWN BANK 08-7547 "release rent" Zook Vs. Cederlund 11200 L844u' 1:0 3 L 3 L 50 361: LOB L L L i? LU' I I A ca 1 J LU .?.? ? erg 021 LLJ J 15212202102009 PYS405 Distribution Cumberland County Prothonotary's Office Page 1 Manual Release Check Register 2/10/2009 Case No Accounting Escrow Tran Date Amount Date Release -------------------------------------------------------------------------------- 3950 ZOOK DOUGLAS L Check Date: 02/10/2009 Check No.: 1844 RENT 2008- 07547 PYMT/CHECK 342.00 1/02/2009 Payee total: 3J2.00 ------------------------------------------------------ ------------------------- Grand total: 32.00 NOTICE TO PLEAD TO THE PLAINTIFF: You are hereby notified to plead to the enclosed PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT within (20) days from service hereof or a judgment mayjbe entered against yo-. 0?-? ? Anthony S. Potter POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. BY: Anthony S. Potter, Esquire 114 N. Second Street Harrisburg, PA 17101 717-238-9300 717-238-9325 (facsimile) Attorneys for Plaintiff/Counterclaim Defendant Douglas L. Zook DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants V. DOUGLAS L. ZOOK Counterclaim Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL JURY TRIAL DEMANDED COUNTERCLAIM DEFENDANT ZOOK'S PRELIMINARY OBJECTIONS Plaintiff/Counterclaim Defendant, Douglas L. Zook ("Zook"), by and through its undersigned counsel, files the following preliminary objections to Defendants/Counterclaim Plaintiffs, Ronald Cederlund and Laura Cederlund (herein after collectively "Cederlunds") New Matter and New Matter Counterclaim, and in support avers as follows: #753248v1 4116-01 I. Factual and Procedural Background. Plaintiff initiated a Landlord Tenant Action before District Judge Paula P. Correal seeking damages and to obtain possession of residential real property based upon the Cederlunds failure to maintain and repair the Property in accordance with the terms and conditions of the Residential Lease with Option to Purchase Agreement ("Agreement") executed between the Parties on May 14, 2008. Zook's landlord tenant action alleged that the Cederlunds failed to repair and maintain the property including, but not limited to, failing to fix a broken showerhead pipe, demolishing an interior wall and allowing pets to defecate and urinate in the.home without cleaning up the excrement. 2. By Order dated December 24, 2008, District Judge Correal awarded Plaintiff possession of the Property and a monetary sum of $8,161.78, representing damage to the Property, the lease payment that was at that time in arrears for December 2008, and two utility payments in arrears plus costs. 3. On or about December 31, 2008, Defendants filed a notice of appeal with this Court and posted one third (1/3) of the monthly lease payment to obtain a supersedeas of the District Judge's order granting Zook possession. 4. On January 16, 2009, Zook filed a Complaint seeking to recover possession of residential real Property and certain monetary damages associated with the Cederlunds breach of the Agreement including their breach of the obligation to maintain the Property. (A true and correct copy of the Complaint in this matter is attached hereto as Exhibit "A" and incorporated herein by reference). 5. On or about Thursday, January 22, 2009, the Cederlunds abandoned the home and failed to file the remaining 2/3 of their lease payment required to continue the supersedeas. 2 6. On or about January 26, 2009, Zook filed a petition to terminate the Supersedeas. This petition was granted by the Prothonotary. 7. On February 2, 2009, Zook filed a petition to Release the Escrowed Rent which was concurred in by the Cederlunds. By Order dated February 8, 2009, the Court granted the petition to release the escrowed lease payment funds in the amount of $332.00 to Zook. 9. On or about February 6, 2009, the Cederlunds filed and served an Answer, New Matter and Counterclaim purporting to set forth affirmative defenses and claims against Zook for, among other things, the following: 1) Breach of Contract; 2) Breach of Warranty of Habitability; 3) Unfair Trade Practices; and 4) Fraud. (A true and correct copy of the Defendants' Answer New Matter and Counterclaim is attached hereto as Exhibit "B" and incorporated herein by reference). 10. The Cederlunds in making these claims attempt to rely, in part, on a proposal to purchase the Property dated May 10, 2008, which is set forth on a Greater Harrisburg Association of Realtors' Standard Form Agreement for the Sale and Purchase of Real Estate. (See Cederlund Answer, New Matter and Counterclaim Exhibit "1"). 11. The Cederlund's proposal dated May 10, 2008 was never signed, approved or accepted by Zook. (See Cederlund Answer, New Matter and Counterclaim Exhibit "l") 12. On or about May 14, 2008, the Cederlunds and Zook executed a Residential Lease with Option to Purchase Agreement ("Agreement"). (A true and correct copy of the Residential Lease with Purchase Option is attached hereto as Exhibit "C" and incorporated herein by reference). 3 13. The Agreement contains an integration clause whereby the Parties expressly agreed that the written Agreement contained the entire agreement between the Parties (Residential Lease with Purchase Option Ex. "C" 139) and an acknowledgement that the "agreement supersedes all others between the parties...." (Residential Lease with Purchase Option Exhibit "C" 141). 14. The Agreement executed by both parties requires the Cederlunds to perform maintenance and repairs at the Property. . (See Residential Lease with Purchase Option Exhibit "C" I 8.a.). 15. As set forth in the Cederlund's Answer, New Matter and Counterclaim, the Cederlunds allege that they requested that certain maintenance, repairs and alterations be undertaken by Zook. (See Answer, New Matter and Counterclaim in 38- 43). 16. In support of their argument that they requested that Zook undertake certain repairs and maintenance, the Cederlunds attach two letters from their counsel dated July 15, 2008 and November 12, 2008. (See Answer, New Matter and Counterclaim Exhibits 3 & 4). 17. In the Answer, New Matter and Counterclaim, the Cederlunds allege that they first learned of apparent mold growth at the Property in the vicinity of a broken shower pipe on or about November 2, 2008. (See Answer, New Matter and Counterclaim 140). 18. On November 12, 2008, Plaintiffs by and through their counsel sent what the Cederlund's allege is a "demand letter" regarding apparent mold growth at the residence. (See Answer, New Matter and Counterclaim 142; Exhibit "4"). 19. By letter dated December 4, 2008, Zook by and through his counsel responded to the November 12, 2008 letter indicating that the Cederlunds had maintenance obligations under the Residential Lease with Option to Purchase Agreement. (A true and correct copy of the 4 December 4, 2008, letter is attached hereto as Exhibit "D" and incorporated herein by reference). 20. Without pleading any facts or basis in the Answer, New Matter and Counterclaim, the Cederlunds now allege that "Defendants believe that Plaintiff was aware of apparent mold infestation before he entered into the Agreements [sic] with the Defendants and deliberately hid the severly deteriorated condition of the home from the Defendants." (See Answer, New Matter and Counterclaim 143). 21. The Cederlund's never requested or demanded arbitration (or mediation) of the claims or disputes relating to any repair(s) or maintenance at the property including repair of the broken shower pipe, the cleaning up the animal waste and/or repairing surfaces including carpet, floors and walls damaged by the leaking pipe and animal excrement despite the fact that the written Agreement mandates arbitration of any such claims or disputes. (See Residential Lease with Option to Purchase 152, Exhibit "C"; See also, Answer New Matter and Counterclaim Exhibit "1" 122 (The Cederlunds' proposal (unsigned by Zook) to purchase the property, which required the Cederlunds to follow the Real Estate Dispute Resolution System for any dispute or claim "including without limitation allegations of concealment, misrepresentation, negligence and/or fraud.") 1. Preliminary Objection In The Nature Of A Motion To Strike/Demurrer To the Cederlunds' New Matter and Counterclaims, Which Are Subiect To Arbitration - [Pa.R.C.P. Rule 1028 (a)(6)] 22. Paragraphs I through 21 hereinabove are incorporated herein by this reference as though set forth at length. 5 23. Rule 1028(a)(6) provides that: (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:.... (6) pendency of a prior action or agreement for alternative dispute resolution. Pa.R.Civ.P. 1028(a)(6). 24. Defendant Cederlunds' New Matter and Counterclaim attempt to assert Counts against Plaintiff which are subject to and exclusively governed by the parties' written Agreement set forth in the Residential Lease with Purchase Option, which requires all such disputes to be submitted to arbitration in Lancaster County. (Residential Lease with Option to Purchase 9[ 52). 25. A true and correct copy of the Agreement requiring arbitration of all such disputes between the parties is attached hereto and incorporated herein by this reference as Exhibit "C" at Paragraph 52 26. The relief sought in the New Matter and Counterclaim can be provided in the arbitration forum agreed to by the Parties and as such the New Matter and Counterclaim must be stricken and dismissed pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(6). 27. In the alternative, the disputes and claims raised by the Cederlunds are subject to the alternative dispute resolution clause set forth in the Cederlund's proposal to purchase the property dated May 10, 2008, which was never signed by Zook. (See Cederlunds' Answer New Matter and Counterclaim, Exhibit "1" 122). WHEREFORE, Plaintiff, Douglas L. Zook respectfully requests that this Honorable Court sustain these Preliminary Objections and strike Counts I & II of the Cederlund's New Matter and strike Counts I-IV of the Cederlund's Counterclaim together with any claims or defenses of Ronald and Laura Cederlund. 6 II. Preliminary Objection In The Nature Of A Motion To Strike/Demurrer To Cederlunds' New Matter and Counterclaim Counts I, II, III, IV Leval Insufficiency 1Pa.R.C.1028 (a)(4)1 28. Paragraphs 1 through 27 hereinabove are incorporated herein by this reference as though set forth at length. 29. Rule 1028(a)(4) provides that: (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:.... (4) legal insufficiency of a pleading (demurrer). Pa. R.Civ.P. 1028(a)(4). 30. "In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible." Hoffman v. Misericordia Hospital of Philadelphia 267 A.2d 867, 868 (Pa. 1970). 31. In Count I, the Cederlunds attempt to state a cause of action based upon an alleged breach of the Agreement based in part on Zooks alleged failure to repair damage to a broken shower pipe and a purported failure to adequately address the Cederlund's November 2, 2008 complaint regarding apparent mold growth. (Cederlund Answer, New Matter & Counterclaim 1140-44;1169-72; & Exhibit "4") 32. In Count II, the Cederlunds attempt to state a cause of action based upon an alleged breach of the warranty of habitability based in part on Zooks alleged failure to repare damage to a broken shower pipe and purported failure to adequately address the Cederlund's complaint regarding apparent mold growth. (Cederlund Answer, New Matter & Counterclaim 1174- 78; & Exhibit "4"). 7 33. Based upon alleged failures by Zook to perform or suggest remedial repairs or to take action to diagnose and remedy the alleged apparent mold growth in November 2008, the Cederlunds allege a breach of contract and a breach of warranty of habitability. 34. Because no writing attached to the Cederlund's New Matter and Counterclaim includes an express warranty, implied warranty or promise that Zook would repair water leaks, Plaintiff has not stated facts sufficient to state a cause of action against Zook sounding in breach of contract and Count I of Plaintiff's Counterclaim alleging that Zook breached his contract must be dismissed under 1028(a)(4). 35. To the contrary, the Agreement between the Parties mandated that the Cederlunds maintain and repair the broken pipe, which would have eliminated the water source. (See Lease with Option to Purchase Agreement 18a). 36. The Cederlunds improperly attempt to rely on purported representations by Zook that the only known defects in the Property were set forth in an Agreement For the Sale and Purchase of Real Estate, which Zook never signed, acknowledged or agreed upon. See Cederlund's New Matter 161; Exhibit "1." 37. The Cederlunds fail to state a claim upon which relief can be granted. 38. This is especially true, where as here, the alleged representations are expressly contradicted by the final written Agreement and the acknowledged Seller's Disclosure Sheet executed by both parties on or about May 14, 2008. 39. By way of example, the signed Residential Lease with Option to Purchase Agreement expressly requires that maintenance, repairs and alterations be undertaken by the Cederlunds unless expressly agreed to by the parties. 8 40. There is no agreement by Zook to repair or maintain broken pipes within the residence after execution of the Agreement and the Cederlunds took possession of the Property. 41. In fact, there is an express waiver of any implied warranties including an implied warranty of habitability along with an express agreement that the Cederlunds were responsible for repair and maintenance of the Property. (See Exhibit "C" at 18.a.). 42. In their new matter and counterclaim, the Cederlunds also allege that repairs including the replacement of the electric furnace was never undertaken by Zook. The final written Agreement executed by the Parties again conflicts directly with the Cederlund's argument because it expressly discloses that the "Electric heat furnace unit is functional, AC unit is not." 43. Similar to the broken showerhead pipe, there is no written agreement to repair or replace the furnace or the air conditioning unit. 44. The Cederlund's claims of breach of contract and breach of an implied warranty of habitability, unfair trade practices and Consumer Protection Act violations fail to state a claim upon which relief may be granted. WHEREFORE, Plaintiff, Douglas L. Zook respectfully requests that this Honorable Court sustain these Preliminary Objections and strike Counts I, and II of the Cederlunds' New Matter and Counts I-IV of the Cederlunds' Counterclaim together with any claims or defenses of the Ronald and Laura Cederlund. III. Preliminary Objection In The Nature Of A Motion To Strike/Demurrer To Of the Cederlunds' New Matter And Counterclaim, Alleging Fraud For Lack of Specificity [Pa.R.C.P. Rule 1028 (a)(3)1 45. Paragraphs I through 44 hereinabove are incorporated herein by this reference as though set forth at length. 9 46. Rule 1028(a)(3) provides that: (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:.... (3) insufficient specificity in a pleading. Pa. R.C.P. 1028(a)(3). 47. Pursuant to Pa.R.C.P. 1019(b), fraud must be specifically alleged. 48. To satisfy these pleading requirements, Plaintiff must set forth the exact statements or actions Plaintiff alleges constitute the fraud. Martin v. Lancaster Battery Company Inc., 606 A.2d 444 (Pa. 1991). "Averments of fraud must be... sufficient to convince the court that the averments are not merely subterfuge." Id. at 831; see also, Bata v. Central-Penn National Bank, 224 A.2d 174, 179 (Pa. 1996). 49. At its heart, the Cederlunds are claiming that Zook breached its contract by failing to respond to complaints relating to the need for certain repairs in July 2008 and a complaint regarding a broken pipe in November 2008 that is alleged to have resulted in apparent mold growth. 50. To this end, the Cederlunds allege that they believe Plaintiff knew of apparent mold growth and other undefined deficiencies in the home when he entered into the Agreement. 51. The Cederlunds first attempt to set forth a cause of action under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-2(4)(ii)(iii)(v)(vii)(xiv)(xvi) and (xxi). There are insufficient facts alleged to set forth a prima facie cause of action under any of these sections of the Law. 52. By way of example, to make a claim under the "catchall provision" of the UTPCPL, 73 P.S. §201-2(4)(xxi), a plaintiff is required to allege, and prove, the elements of common law fraud. See, Colaizzi v. Beck, 895 A.2d 36 (Pa. Super. 2006). Here, the Cederlunds have failed to do so. 10 53. In attempting to allege actual common law fraud, the Cederlunds allege that they "relied on the Plaintiff's [Zook's] representation that the defects listed in Paragraph 8 of the Cederlunds' proposal [which was never signed by Zook] were the only defects present in the mobile home." (Cederlund Counterclaim 184). 54. The Cederlunds' Counterclaim also fails to acknowledge the Cederlunds' receipt of a Standard Form Seller's Property Disclosure on May 14, 2008, which includes a section that relates directly to apparent mold growth. (A true and copy of the Seller's Disclosure is attached hereto as Exhibit "B" and incorporated herein by reference). 55. In the Seller's Disclosure Zook disclosed that he was not aware of any tests for mold, fungi, or indoor air quality at the Property. (See Exhibit "E" 117(d)). 56. Zook further disclosed that "Other than general household cleaning" he had not taken any efforts to control or remediate mold or mold-like substances in the Property. (See Exhibit "E" at 117(e)). 57. The Cederlunds do not allege any facts to support a claim that Zook's disclosures regarding any alleged apparent mold growth were fraudulent. 58. Rather, the Cederlunds allege that they "believe" that Zook was aware of apparent mold growth in or about May 2008. 59. Upon information and belief, Defendants never engaged a qualified professional to perform any classification of any apparent mold growth or to perform an indoor air quality test at the residence. 60. The Cederlunds have not sufficiently alleged a cause of action against Zook sounding in fraud by simply stating they "believe" that Zook was aware of apparent mold growth. 11 Certainly, this is insufficient to satisfy the heightened pleading requirements of Pa. R.C.P. 1019(b). 61. To satisfy the requirements of Pa. R.C.P. 1019(b) requires exact statements and actions (not mere conclusions) suggesting that Zook (1) made a representation; (2) which was material to the transaction at hand; (3) made falsely; (4) with knowledge of the falsity or recklessness as to whether it is true or false; (5) with the intent of misleading another into relying on it; (6) justifiable reliance on the misrepresentation; and (7) a resulting injury proximately caused by the reliance. See Martin v. Lancaster Battery Company, Inc., 606 A.2d 444 (Pa. 1991). The Cederlund's Counterclaim contains no such factual allegations. WHEREFORE, Plaintiff, Douglas L. Zook respectfully requests that this Honorable Court sustain these Preliminary Objections and strike Counts I & II of the Cederlunds' New Matter and Counts III-IV of the Cederlunds' Counterclaim together with any claims or defenses of the Ronald Cederlund and Laura Cederlund. Respectfully Submitted, POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By Anthony . Potter 1. D. # 03 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 (717) 238-9325 Date: February 25, 2009 12 DOUGLAS L. ZOOK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, V. PENNSYLVANIA rti- RONALD AND LAURA CEDERLUND, NO. 08-7547 CIVIL r Defendants - Q' JURY TRIAL DEMANDED NOVICE a N m YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By ?' IV Artt y S. Potter I.D. #75903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Date: January 15, 2009 #739056vl 4116-01 EXHIBIT A I DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7547 CIVIL JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Ronald and Laura Cederlund c/o Geoffrey M. Biringer 401 E. Louther Street, Suite 103 Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. Date: January 15, 2009 By Anthony S. Potter I.D. #75903 114 N. Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Douglas L. Zook #739065v14116-01 DOUGLAS L. ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 08-7547 CIVIL JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, Douglas L. Zook, by and through his undersigned counsel, bringing the following civil action against Defendants, Ronald and Laura Cederlund: 1. Plaintiff Douglas L. Zook is an adult individual with a principal place of business located at 480 Running Pump Road, Lancaster, Pennsylvania 17601. 2. Defendants Ronald and Laura Cederlund (herein after collectively referred to as Defendants or Cederlunds) are adult individuals residing at 120 Cranes Gap Road, Carlisle, Pennsylvania 17013. 3. On or about May 15, 2008, Defendants entered into a Residential Lease with Purchase Option Agreement ("Agreement") with Plaintiff for the home located at 120 Cranes Gap Road, Carlisle, Pennsylvania 17013. (A copy of the Residential Lease with Purchase Option is attached hereto and incorporated herein by reference as Exhibit "A.") 4. The Agreement provided for a term of seven and a half years on the property at a monthly Lease Payment of $995 ("LP Payment") plus taxes and insurance. 5. The Agreement requires Defendants to pay taxes and insurance on the Property. 6. Defendants took possession of the leased premises on or about May 15, 2008, in accordance with the terms and conditions of the Agreement. #738648vl 4116-01 7. After November 5, 2008, the Cederlunds ceased making any payments due and owing under the terms and conditions of the Agreement. 8. On or about November 7, 2008, representatives of Plaintiff inspected the premises noting and photographing severe damage to the Property. 9. Plaintiff's representatives observed, among other things, severe staining on carpets and floors, a demolished interior wall, water damage as a result of a broken showerhead pipe in the bathroom, and debris and pet waste on the finished floors of the home. 10. The damage and Defendants' failure and refusal to maintain and repair the Property constitute a breach of the Agreement, specifically, Paragraph 8 of the Agreement. 11. Defendants have also breached the Agreement by maintaining pets at the premises and allowing those pets to urinate and defecate in the home. Keeping unapproved pets violates Paragraph 5 of the Agreement, and the Defendants' failure to repair the damages caused by those pets violates the Agreement, including but not limited to, Paragraphs 8 and 9 of the Agreement. 12. The fair and reasonable cost to repair and replace damaged and broken items in the home is eight thousand dollars ($8,000.00). Attached hereto and incorporated herein by reference as Exhibit "B" is an estimate for $8,000 to repair the broken and damaged items at the premises. 13. Plaintiff demanded that Defendants undertake their obligations to repair the damage done to the property, but Defendants have failed and refused. 14. Defendants have failed and refused to make monthly LP Payments for December 2008 and January 2009 and other payments required by the terms and conditions of the Agreement. 2 (A true and correct copy of the most recent Statement of Account Receivable sent to Defendants is attached as Exhibit "C" and incorporated herein by reference). 15. Plaintiff initiated a Landlord Tenant Action before District Judge Paula P. Correal seeking to obtain a judgment for the damage to the property, collect the LP payments, utility payments in arrears, and to obtain possession of the property. 16. By Order dated December 24, 2008, the Honorable Paula P. Correal awarded Plaintiff a monetary sum of $8,161.78, representing the lease payments in arrears for December 2008, the utility payments in arrears plus costs. District Judge Correal also granted Plaintiff Zook possession of the residential real property. (A true and correct copy of the Notice of Judgment/Transcript Residential Lease is attached hereto as Exhibit "D" and incorporated herein by reference). 17. On or about December 31, 2008, Defendants filed a notice of appeal and posted one third (1/3) of the monthly rent. 18. Plaintiff, by and through his construction manager, inspected the premises again on Friday, January 9, 2009, and Defendants still have failed and refused to undertake repairs and maintenance to the premises. COUNT I (EJECTMENT) 19. Plaintiff incorporates all of the above paragraphs as if fully set forth here at length. 20. The Agreement obligates Defendants to make a nine hundred and ninety five dollar ($995) LP Payment on or before the first day of each month. Defendants have not made a LP Payment since November 5, 2008. 21. Defendants failed and refused to pay the December 2008 and January 2009 LP Payments. 22. Defendants are in default based upon their failure to make the December 2008 and January 2009 LP Payments. 23. Defendants are also in default based upon their failure to pay taxes and insurance on the Property. 24. In entering into the Agreement Defendants expressly waived any notice requirements for a default on the LP Payment. The Agreement expressly provides that "there is no notice required and no cure period for a default resulting from non-payment or late payment of the LP payment." See Exhibit "A" Paragraph 13. 25. Plaintiff is entitled to possession of the premises based upon Defendants breaches of the Agreement, including but not limited to, their failure to make timely required LP Payments, failure to repair or maintain the premises, and their keeping of unapproved pets that defecated and urinated in the home. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in favor of Plaintiff and against Defendants for possession of the premises located at 120 Cranes Gap Road, Carlisle, Pennsylvania together with costs, fees and attorneys' fees as permitted by law and the Residential Lease with Purchase Option Agreement. 4 COUNT H (BREACH OF CONTRACT) 26. Plaintiff incorporates all of the above paragraphs as if fully set forth here at length. 27. After November 2008, Defendants failed and refused to pay their Lease Purchase Payments. The Defendants are in arrears on their LP Payments under the Agreement in an amount of $1,990. 28. The Defendants have failed and refused to pay for utility and trash bills as required by Paragraph 3 of the Agreement. The Defendants are in arrears on the sanitary sewer bill and the garbage bill in an amount of $125.65. 29. The Defendants have failed and refused to make late fee payments on the LP Payments and the Utility bills as required by the Agreement. The late fee charges are currently in excess of $400.00 in arrears and continue to accrue. 30. The Defendants have failed and refused to maintain and repair damage to the premises in accordance with Paragraph 8 of the Agreement. 31. The damage to the premises for which Defendants are responsible include pet waste on the carpet and floors, an interior wall that was demolished, water damage to walls and flooring as a result of a broken showerhead pipe in the bathroom, a broken showerhead pipe, and carpet, floor and subfloor damage as a result of pet excrement and urine being allowed to soak into the surfaces. 32. The fair and reasonable cost of repairing and replacing the broken and damaged items in the home described above is $8,000, as shown more particularly by the estimate attached as Exhibit "B." 5 33. Plaintiff is entitled to an award of attorneys' fees and costs pursuant to Paragraph 21 of the Agreement. Said attorneys' fees and costs continue to accrue and Plaintiff requests leave to amend the complaint to include such damages once liquidated. WHEREFORE, Plaintiff demands judgment against Defendants as follows: a) In the amount of $995 per month for LP Payment, which at the time of the filing of this complaint are $1,990 in arrears, with interest from the ls` of each month that the LP Payment was due; and b) In the amount of $125.65 for utility bills and late fee charges; C) late fees in the amount of $400.00; and d) In the amount of $8,000 for repairs to damaged items; and e) insurance and tax costs as required by the Residential Lease with Purchase Option Agreement to be determined at the time of trial; and f) costs, fees and attorneys' fees as permitted by law and the Residential Lease with Purchase Option Agreement in an amount to be determined at the time of trial. POWELL, TRACHTMAN, LOGAN, CARRLE & LOMBARDO, P.C. By Anthony S. otter I.D. #759 114 N. cond Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Douglas L. Zook Date: January 15, 2009 6 May 15 08 02:27p Dave Miller 932 9678 p,1 RESIDENTIAL LEASE WITH PURCHASE OPTION You, Ronald D. and Laura L Cededund (also called Lper in this contract), have given a deposit in the amount of $8000 (eight 101Sad dollars). After the Owner of the premises accepts and signs tbuis lease, your deposit will become aon-refnndable and will be applied as follows: To non-rofundable option consideration ....................................:$8000 Your first lease payment (also known as LP payment) is due on or before _5/15108 for the period 5/15-5/31108................ : $497.50 The Non-refundable option consideration gives you the option to purchase the property during the term of the lease, so long as you do all the things you are agreeing to do, when you have agreed to do them. If Owner or his authorized agent does not accept and sign this agreement within 15 days, it shall terminate and your deposit will be returned Y on are offering to lease from the Owner the premises, described as a large double wide and the lot it sits on known as 120 Cranes Gap Rd. Carlisle Pa. 17013 in the County of Ctiniberland, State of PA upon the following TERMS AND CONDITIONS. TERM: The term ofthis lease will start on _5/15108 , and end on _1213l/2014 , unless the purchase option is exarcised before the option terminates in accordance to clause 29. 2. MONTHLY PAYMENT: The Monthly LP payment at the start of the lease will be $995 per month due in advance on the fast of each month to Owner or his authorized agent at the following address 480 Rwming Pump Rd, Lancaster, PA 17601 or at a different address if the Owner notifies you to change the address you send your payment to. The LP payment includes $--0- as a payment toward taxes and ins'rsum If We amount is not enough to cover the actual bum and insurance, the Owner will send you a bill for toe difference wWeh you agree to pay as additional rent within 30 days of being baled by Owner. ff you are ever isle paying a tax or insurance bill, then at Owners sole option you will be given notice of the monthly amount equal to 1112 of the estimated taxes and insuranee shortfall that w 9i be added to the monthly LP payment for future tax and insurance bins, wbich shall then be due monthly with your LP payment as additional rent. If you don't pay your payment on or before the due date you most pay Owner a $100 plus $3 a day until paid b ft fee. If you bounce a check for any reason you must pay Owner a $30 bad check fee. have re =1y do nd and - the terms A/. 0 and conditions contained in this entire agreement EXHIBR May 15 08 02:27p Dave Miller 932 9578 p,2 3. UTILITIES: You are responsible for the payment of all utilities and ttvalt and other ongoing maintenance and cleaning services related to the premises. 4. USE: You may only use the premises as a single family residence. Any other use requires written approval from Owner. 5. PETS: You may not have pets on the premises unless you have written approval first from Owner. If Owner approves any pets, they must be kept in compliance with all laws. If Owner approves a particular pet or pets, that does not automatically approve other pets without written permission from Owner. 6. ORDINANCES AND STATUTES: You agree to comply with all deed restrictions, statutes, ordinances and requirements of municipal, state and federal authorities now in force, or which may be put into force at a later time, pertaining to your use of the premises. 7. ASSIGNMENT AND SUBLETTING: You may not assign this agreement or sublet any portion of the premises without written approval from the Owner. If Owner approves one assigmnerrt or sublet, that does not automatically approve other assignments or sublets without written permission from Owner. 8. MAINTENANCE, REPAIRS, OR ALTERATIONS: You have inspected the premises and acknowledge it is in good order and repair and accept it as it was shown to you. Any e=epfms are noted here: Owner will remove the one add on deck, supply it's standard paint (LP+er to do good quality full paint. labor}ob) and remove wood stove. Electric heat furnace unit is ftmcdonal, AC unit is not. 8.a. WAIVER OF WARRANTIES, ACCEPTANCE AS IS: Thks agreement constitutes the entire contract between the parties hereto and the Owner is not liable or bound in any manor by expressed or implied warranties, guaranties, promises, statements, representations, or information pertaining to said premises. Except as noted on the line above, the LAer agrees to take the premises as is and with any and all ikuhs, known or unknown. The Leer waives any and all statutory or implied warranties with regard to defects in, or the habitability 4 the premises. The terms of this waiver shall survive settlement if Lper exercises the purchase option. You, at your own expense, must at all times maintain the premises in a clean and sanitary condition including all equipment, appliances, furniture &,A furnishings in the premises and AM turn it all back over to Owner, at the end of the lasso period, if you do not exercise your option to purchase, in as good condition as received, except for normal wear and tear. Pet stains and odors and other pet. damage shall not be considered normal year and tear, even if pets were approved by Owner. You most water and maintain any surrounding grounds, including any storm water facilities, and you must maintain drainage away from the house including any downspout atmions or pipes. You must maintain all lawns and shrubbery and keep the premises clear of rubbish or weeds. You must also maintain all facilities, mechanieals, wiring, roofing. sating, decks and other feawes of the home in good working order and appearance. You have inspected and verified the operating condition of the stroke detectors and agree to maintain them in an operating condition including weekly testing and battery replacement when needed, at all times. You must get written permission from Owner to paint, paper, or otherwise decorate or make alterations to the premises. , itand an the terms and conditions contained in this entire agreement a have d =I. ata May 15 08 02:28p Dave Miller 932 9578 P.3 You must keep all kids toys in the back of the house out of site or inside when not being played with, no bikes, toys, trampolines, etc may be stored in the front yard. All grass must be kept under 5" in length at all times. You must pay all the costs of maintaining the premises the same as if you actually owned the property without benefit of The LP structure. Upon notice from Owner, the local municipality, any state or federal agency, including but not limited to Soil Conservation Service (SCSI or the Department of Environmental Protection (DEPT you must Immediately comply with any and all assassments and requirements inching but not limited to any National Pollutant Discharge Elimination Systems Permit (NPDES) or other permit requirements pertaining to the property, at all times, and if Owner, at it's sole option, attempts to defend against such an assessment or requirement and/or receives a fine due in 11411 or in part to your non- compliance with these requirements, you must reimburse Owner for all costs of defense against said action and also for (at Owners sole option) bringing the premises into compliance together with any fines and/or legal costs incurred by Owner by your failure to comply, at cost pars 2094, within 10 days of being billed by Owner. This obligation shall survive settlement if die purchase option is exercised. 9. DAMAGES FOR NEGLIGENCE: You are responsible for damages caused by your negligence and that of your family or anyone you invitee to the premises including any guests. 10. ENTRY AND INSPECTION BY OWNER: You must permit Owner or Owners Ago* to enter the premises at reasonable tunes and upon reasonable verbal or written (at Owners sole option) notice for the purpose of making necessary repairs, or to show the promises to prospective Leer, purdnawn, or mortgage's, or to we if premises is being kept in conformance with this agreement. For diese purposes, 24 hours is deemed reasonable and acceptable notice. 11. INDEWMCATION. Under no circumstances will Owner be liable for any damage or injury to You , or any other person, or to any property, ocoun tlg on any pert of the premises. You agree to hold Owner harmless from any claim for dam ages, no matter how caused, and you also agrees to indemnify Owner for any and all damage, losses or injury occurring on or because of the premises for which claim is made against the Owner or premises including, but not limited to, costs and attorneys fees incurred in defending against any claims or in enforcing this agreement. 12_ PHYSICAL POSSESSION: H Owner is unable to deliver possession of any or all the premises on the start daft of the term, Owner won't be liable for any damages that result. This will also not cause this agreement be void or void-able, except at Owners sole option, but you will not have to pay any LP payment fvr the undeliverable part until possession is delivered. If this agreement applies to property which is new construction, possession shall be considered to have boon delivered on the day after Certificate of Occupancy (if required) is received by Owner, or the date Owner notifies you the property is substantially complawd if no Certificate of Occupancy is requbW by the municipality. You may t3armmate this agreameat if full possession is not delivered whin 180 business days of the start of the term and all option consid3oratlon paid shall be rel nded. Any delay in the delivery of physical possession shall not extend the end date of the term or the option expiration date. Your LP payment obligation will start on the date of the start of the term according to Clause 1 above, or the date of the acquisition of any required cxrtificate of Occupancy, or the date Owner notifies you the property is imbstwialiy completed if no Cardflaate of Occupancy is required by the municipality, whichever is rater, regardless of when you actually move in. eve ma¢ ga fi ly ode Dad sn?d to the terms and conditions oontained in this entire agreement May 15 08 02:28p Dave Miller .932 9578 p.4 13. DEFAULT: It shall be a default under this agreement if You fail to (1) pay the full LP payment or any other payment required by this agreement when due, or, (2) perform any duty, obligation, or fulfill any responsibility required of You by this agreement within 3 days of verbal or written notice of any such default. In the event of any such defauk, as set out in this section 13.(2) YOU MAY CURE THE DEFAULT BY PBRFORMINa WITH N THE THREE DAYS. AS TO ALL OTHER DEFAULT, IT SHALL BE NON-CURABLE AND the Owner, at his sole option, may terminate all your rigbts under this agreement, there is no ae6ft n guind and no cure period for a default resulting from non-payment or late payment of the LP payment). In the event of a default by you lasting more than 3 days, Owner may elect to (a) continue the lease In effect and immediately accelerate all payments due along with costs and fees provided herein, (without the right to purchase) and ev&= all rights and remedies belonging to Owner under this agreement, including the right to recover the LP payment as it becomes due, or (b) at any time, terminate all of your rights under this agreement and recover from LPer all damages incurred by reason of your breach of the lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the tease, even if your default be remedied after 3 days from the ef%ctive date of notice. Actual damages for the ranarketing of the property shall be doomed to be 6% of the option price, plus all loss of raft and any get ready costs and costs of collection incurred by Owner until a new buyer or Leer is found. Pending an accounting of actual damages, liquidated damages in the event of a default shall be doomed to be $8000.00 plus costs of collection and may be pursued at Owners sole option in addition to other actual damages. 14. ABANDONED PROPERTY: If you abandon or vacate the property, while in default of the payment of LP payment, Owner may consider any property left on the premises to be abandoned and may immediately dispose of the same in any manner and/or at Owner's sole option, retain full and complete title to the property abandoned without any notice to Leer. In the event the Owner reasonably believes that such shmdimed property has no vakw, it may be discarded. You agree that all property on the premises is subject to a lien in favor of Owner for the payment of ail sums due hereunder to the maximum extent set forth in this Agreement. IS. WAIVERS: No failure of Owner to enforce any term of this agreement shall be downed a waiver of that tents currently or in the future, nor any other term contained in this agreement. Specifically, the acceptance of partial payment of LP payment or any other payment required by this agreement shell never be deemed a waiver of Owners tight to the full amount due. 16. NOTICES: Any notice, which either party may or is required to give may be given by hand delivery or by mailing the same First Class Mail postage prepaid to Leer at the premises or by posting conspicuously on the frost entrance of the promises, or to Owner by both regular and Certified Mail, postage prepaid to both addresses shown below or at such other places as may be designated by the Owner from time to time. Notice to Owner shall be deemed to have been given upon the day showing on the signed califled mail retum too@*. 17. NON MODIFICATION: Acceptance of partial payments or a late payment by Owner shall not modify this agreement. 18. HEIRS, ASSIGNS, SUCCESSORS: This lease is binding upon and inures to the benefit of the heirs, assigns, and successors in interest to both the owner and You, except as precluded by Paragraph 7 herein. 19. TIME: Time is ofth essence to this agreement This means all dates and time frames must be honored strictly. If We a read =yd and bn M the totms and muditions contained in this entire agreement 041- ,9D.C May 15 08 02:29p Dave Miller - 932 9578 P.6 20. HOLDING OVER If you do not exaoise the purchase option and you want to stay after the end of the term of this agreement is expired, that with the consent of the Owner, your staying will be a ntortth to-month tehteney with the other terms of the agreement, except the purchase option provision, ranaining towhanged. When you want to and the month to month tenancy you must give 60 days written notice from the fiat of the math to Owner. You must give 60 days notice ofyour intention to vacate prior to the end of initial term. Your failure to provide such 60 days notice shall be considered your application for holding over month. to-month tenancy in accords= with this clause. No such holding over or extension of this low shall extend the time for the exwdw of the purchase option unless otherwise agreed upon, IN WRITING, by Owner. 21. ATTORNEY FEES AND COSTS: In any action or proceeding involving a dispute between Owner and Leer to enforce the terms trend conditions of this lease with option to purchase, or to recover possession of the premises from LPer, the Owner shall be eaddod to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings in the amount of 5% of the option price or the actual fees, whichever is greater. 22. OPTION: So long as LPer is not, AND has not over been at any time, in default in the performance of any tarns of this lease, LPer gall have rho option to purchase the prendses for a PURCHASE PRICE OF $129,900 plus all costs of Owner placing permanent fmancing to carry this for you, and any prepayment penahy required by Owners underlying leader at the time Lper exercises their option to purchase under the following TERMS and CONDITIONS: A. Each time the current LP payment (as adjusted from time to time by the terms of this agreement) in the LP payment envelope is pooftwked by the due date and mailed to the Owner, or electronic payment is made on or before the due date, You shall be entitled to a 9.99%APR 30 yr amortization credit toward the purchase price, when exercising the option tD purchase. In the event that Owner's interest rate rises on arty mortgage he has on the property while you are leasing it, your LP payment and/or amortization credit (at Owners sole option) will change, to reflect the increase. Depending on your start payment, you may have an initial negative amortization troth B. Year option to purchase cannot be sold or assigned without the Owner's written permission. You may not sublease the promises without the Owner's advance written permission. Permission to seli or assign the option, or sublease the premises, may be unreasonably withheld by Owner. C. If there is any default of any of the terms of this agreement that is not cured under the terns of this agreement or if it shall become necessary to evict the LPer for any reason or if the LPer does not exercise it's purchase option, the LP payment amortization calculation credit is canceled. D. When the purchase option is exercised the property "I be cowmyod in its then "as is" condition with no watranttesJrepdesontatioms orguarrmtees by Seller. B. The nonrefundable option consideration shall be credited to buyer's purchase price along with any LP payment amortization ev edh earned when tha option is exercised. Except as expressly set forth in this agreement, NEITHER THE OPTION CONSIDERATION NOR THE LP PAYMENT AMORTIZATION CREDIT IS REFUNDABLE UNDER ANY CIRCUMSTANCE. F. You are responsible to arrange your own financing for the purchase price if you exercise y?ur purchase option. UWe a read job, ly n e!g an to die tarns and conditions contained in this entire agreement May 15 08 02:29p Dave Miller 1932 9578 p,6 G. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to increase the LP payment and/or interest rate for calculation of any amortization credit by 10% for awJk year in which there is any late payment, without Auther notice to you. H. If any payment was late for any mason whatsoever, the Owner, at his sole option, may elect to increase the option price by 10% for each year in which there is any late payment, without further notice to you. J. On _I/V2010 the mouthly payment (before adding 1112 the estimated annual taxes and insurance) will increase by $150 and will increaw $50 on January i of each year thereafter. 23. DISCLAIMER: You acknowledge that there is no way to know what the availability of financing, total purchase costs, and lenders prepayment penalties wM be at the time you may decade to exercise your option to puwA ase. Therefore, you agree that these itans shall not be conditions of performance of this agreement and you " that you have not relied upon any representations or warranties of Owner, his agents, brokers, affiliates, or other parties, in regard to these issues. 24. FIXTURES: All improvements, fixtures, attached' floor coverings, draperies including hardware, shades, blinds, window and door screens, storm sash, combination doors, awnings, and items permanently attached, shall be included, unless specificAy excluded here NONE 25. ENCUMBRANCES: Leer shall take title to the premises subject to (1) Real Estate Taxes not yet due and (2) Covenants, conditions, restrictions, reservations, rights, rights of way and easements, if any. 26. EXAMINATION OF TITLE: You will have Fifteen (15) days after you notify Owner of your intention to oxmise the option to purchase to order at your own cost, from a title company approved by Owner at Owner's sole discretion, and examine the title to the property and to report in writing any valid objections you have. Any exceptions to the title, which would be disclosed by examination of the record, shall be deemed to have been accepted unless you report them within the allowed ffbeen (15) days. If you object to any exceptions to the tick, Owner may, at his sole option, use all due diligence to remove such exceptions at his own expense, within ninety (90) days after receiving your report in writing. But if such exceptions cannot be removed within the ninety (90) days allowed, or if Owner elects not to remove such exceptions, all rights and obligations hereunder may, at your option, terminate and end unless you elect to purchase the property subject to such exceptions. 27. CLOSING COSTS: At closing, You will pay all transfer tax, title fees and other closing costs. 28. PRORATION& All LP payments, taxes, premiums on insurance, and other expenses of the property to be prorated as of possession by You. I have roaZlid nd and gr eD?e terms and conditions contW ned in this entire agreement 0 '5-P4 GMga A.?.C, May 15 08 02:29p Dave Miller "" ? 932 9578 p.7 29. EXPUtATION OF OPTION: This option may be exercised at any time aft M5115108 and shall expire at midnight 12/31/09 . After the expiration darn of the option, this agreement shall be a lease only. Owner will have no fiwd rr obligation to you related to the option and you wig have no more rights under the option, whether legal or equitable. After expiration of option, Landlord at it's sole option, may at any time give 90 days written notice to Lper and terminate the lease. 30. NOTICE AND EXERCISE OF OPTION: When you have decided to exercise your option to purchase you must mail a notice of your intention, together with an additional $1000 in option consideration, to the owner, at least 60 days prior to the expiration of this option. if you have not defaulted an any of tic terms of this agreement, when you exercise the option, the non-refundable option consideration and any credit due from the LP payment as noted in section 22 shall be credited to your purchase price and closing coats. 31. SEVER.ARRHY: If any part of this agreement is held to be invalid or unenforceable, in whole or in part, then drat provision will be ineffective only to the extent of the invalidity or unenforceability without in any way affecting the validity or enforceability of the remaining parts of this agreement. 32. JOINT AND SEVERAL LIABILI'lt`k': If any default occurs, ewh of you, if then be more than one, shall be jointly and severally liable under all temps of this agmanent. This rneans each of you may be held responsible individually for payments of ail amounts due under this agreement. 33. OTHER DEBT: As part of this agreement, You agree to incur NO ADDMONAL DEBT without the written consent of Owner. You also agree to pay all present payments on time. If you do not pay all present payments on time, or you incur additional debt without the written consent of Owner, you will be in default of this agreement. You agree that Owner or his W.Ut shall have the right at any time to obtain a credit report mWor employment and income source verification on you during the term of this agreement and any subsequent agreements or actions related to this agreement 34. INSURANCE REQUIREMENTS: At all times LPer shall fully insure the premises for both physical damage and liability with the Owner as the primary inured party. Coverage's to be minimum $500,000 liability and option price. In the event Owner elects, at its sole option, to directly acquire insurance, LPer's payment shall be increased according to the cost of the insurance plus a 10PA administration fee; in this case, Owner's policy will not cover your personal property or liability, therefore Owner requires you to obtak a rertm insurance policy to provide liability and contents coverage for you and your personal property and to awe Owner as an additional insured on your renters policy. 35. SALES TAX: You are responsible for all sales tax due if the State determines at some time that this is a taxable transaction. In the event of a determination drat sales tax is payable on the LP payment, yottr payment will be adjusted accordingly. 36. VENUE: You agree that regardless of wbere this agreement was sioi4 that this agreement shall be treated for lo0 purposes as entered into at Owners main Office in Lancaster Canty, PA and that any legal actions that result from this apeemerst shall be in the proper jurisdiction of the District Justice of Owners currant office in Larmoaster County, PA or the Courts of Common Pleas of Lancaster County, PA or the District Justice or Courts of Compton Pleas wham the property is located, at Owners sole option. Io the te rms and conditions contained in this entire agreement P. 6. 0. May 15 08 02:30p Dave Miller ~' 932 9578 p.8 37. OWNERS 71TLE: Owner, as referenced herein, may be equitable and may not necessarily be the "record" owner. Them may also be other equitable partners but Owner signing below has authority to act for all partners, if any. 38. OWNERS UNDERLYING FINANCING: Contingent upon Owner closing on the permanent underlying Bumming for Owner. In the event this does not close, this agreanent, at Owners sole option, may be declared null and void. 39. ENTIRE AGREEMENT- You acknowledge that this document contains the entire agreement between you and the Owner, his agents, employees or related parties and that you have no other oral or written agreements with Owner or any other person or business related to this property. 40. LEGAL REVIEW: You selcmowledge that Owner has recommended *at you have this Agreement reviewed by legal counsel to make sure you undordand! the legal sigaifieance of all terms and conditions of this agreement and you have either A) done so; or B) waived this recommendation. You also acknowledge that this Agreement and all terms and conditions of k were open to negotiation and that you are satisfied with all trams and conditions, as they exist. 41. SUPERSEDING AGREEhIE NT: This agreement supersedes all odd s between the patties and any affiliates. Nothing in this clause sbiatl preclude rho final recondltation of all taxes and Insurance and any amortization credit duo undo preceding LP agreement, if any. If m any time, to faoiliinte Lper obtaining financing, Owner and Lper enter into a simple sales agreement for the property, that sales agreement and any term within it shag never in any way supersede or mod* the terms of this agreement. All terms of this agreement shall supersede all terms of any sales agreement done for financing convenience purposes and the terms of this agreement shall remain in full force and effect at all times even when a lender is processing a loan under an additional sales agreement 42. BROKER DISCLOSURE: Douglas L. Zook is a Licensed RE broker functioning solely as a principle in this transaction. You agree there are no brokers involved in this transaction unless identified here NONE 43. AUTOMATIC PAYMENT: You agree that all LP and other payments required by this Lease can be taken from your bank account by automatic electronic withdrawal on 1hcir due dates. 44. PRE-0CCUPANCY: Should you, with owners required permission, occupy the prernises prior to the start of term of this agreement, you will owe in advance an amount equal to 1130 of the monthly payment for each day you occupy prior to the start of the term. No amortization credit will accrue for this preoccupancy. 45. NOT AN INSTALMENT SALE: You expressly agree that tWs is solely a lease with option to purchase agreement and shall never be construed to be an installment sales w Mement under any circumstance. 46. RECORDM. Under no circumstimces shall Tenant record this lease. Landlord may record at his sole option. 47. LEAD NOTICE: if checked hero, this is a pre. 1978 homers and a lead notice is attached: t11Ve p read and =ydergand- agree ?,the terms and conditions contained in this entire agreement 4A. Daft May 1 5 08 02:30p Dave Miller '74 '1 932 9578 p,9 48. MOLD: Mold is caused by moisture and certain types an be a hazard to your health. If you ever have a moisture problem, whetber it be from a pipe leak, roof leak, flood, or any other cause it is extremely important tin address it immediately. Please oontact Owner immediately if any moisture problem develops so Owner can suggest ways to minimize the risk of mold developing so you can protect your horse and your health. Owner will not be Gable for any damage or injury to You , your invitees, or any other person, or to any property, related to mold. 49. CARBON MONOXIDE: Carbon Monoxide is a byproduct of combustion of fossil fuels such as natural gas which your home maybe heated with. If you do not keep your heat system and hot water heater maintained, carbon monoxide can be, released into the home which can make you sick and can even kill you. It is your responsibility to keep your home maintained at all times including your gas systems to protect your hahh. While not required by law, Owner recommends you have a carbon monoxide detectar operable in your home atoll tunes. They can be acquired at the local hardware store for less than $50. Owner will not be liable for any damage or injury to You, your invitees, or any other person, or to any property, related to carbon monoxide. 50. RADON: Radon is a naturally occurring clear and odorless gas that can increase your risk for certain kinds of cancer and other illnesses if the concentration is too high. Nigh levels of radon are easily mitigated by a vent system. Owner makes no represematiens about the existence or non- existence of radon in this home. You are encouraged to satisfy yourself if you have any concerns about radon in your home. 51. WATER QUALITY It may or may not as yet be determined if your home will be dependent upon a public water supply or on a well. If it is or becomes dependent upon a well, Owner makes no representations or warranties as to the quality of water from the well, the measures, equipment or cosh which may be necessary to store, deliver or treat the water, in order for it to be suitable for domestic use and commption. Under no construedon of this agreement, implied or express, shalt Owner be considered responsible for the ultimate quality or suitability of the water for domestic use. Water quality can change over time due to many environmental and uncontrolled factors. Water tasting is readily available and LPer is encouraged to investigate and become satisfied as to any concerns about water quality in your home. It is solely the responsibility of LPer to do so, if desired, and LPer agrees to hold Owner harmless from any claims by Leer or claims by parties in possession by or through LPer, from all damages, costs and attorney fees, which may be applied to Owner as a rmalt of such claims. 52. ARBITRATION CLAUSE: This Agreement shat! be governed by and construed in accordance with the law of the State of Pennsylvania. Any action to pursue eviction or regain possession and obtain judgment for scat 1'aability and property damage may be pursued in the appropriate courts of said state, at the sole discretion of the Owner. Any other olainis or action, by eitha• party, to enforce or interpret this agreement and all other disputes under the agm anent shall be roolved by binding arbitretion in Lancaster, PA. Either party shall give notice according the notice provisions of this agreement, sending the other a demand for arbitration tmder this clause. Both parties may agm on an arbiter or, i f they cannot agree on an arbiter within 30 days of the date of the demand, each shall pick an arbiter within 45 days oft o date of11he demmd. Those two piked arbiters shall choose a third arbiter within 10 days thensftcr' (55 days of the demand date) and the arbitration will proceed as directed by the arbiter/s and as otherwise proscribed according to the Laws of said state. Time is of the essence and failure to timely join in the choice of arbiter/s, by either party, shall be conclusively dawned a waiver of the right to choose and the matter will proceed under the single arbiter chosen timely. e ve read and land an a@?e to the terms and conditions contained in this entire agreement n ate ?/ May I1 08 02:31p Dave Miller 1 . 932 9578 p.10 10 53. REPLACEMENT CONTRACT: Should Owner deternniae at any time that he wishes to partition the lose from the purchase option, Owner shall pwwnt you with the 2 separate contracts with all material terms and conditions remaining substawd elly unchanged except for the partitioning and you agree to sign thorn within 10 days. Failure to do so shall coast we a default of this entire agreement and you will be required to pay all of Owners legal coats in enforcing this agreement. 54. Penman nt faundation and move to another lot : LPar uuderrstands tht home is not preswntly on a pertinaam fonudetalon. At any time, with 30 days notice. Owner at it's sole option may elect to build a ponnanent foundation on this lot, or on one of rho 5 other similar lots Owner has on Cranes Gap & Northviewv Rds, and move the home onto the permanent foundation. LPer understands they may be displaced for a few days daring the move if clotted by Owner. N Owna elos to move this horse to a different lot, LPer agrees that the subatitudon of any of the following similar lots is aweplable. Cranes Gap Rd 110,120,130,140, 204 and i Noathview. By signing below, you acknowledge you have read and fully understand and agrera to the tam and cond'Rion,s contained in this entire agreement and that you have received a copy of this agreement. IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND HERB.BY, THE PART MS HERETO HAVE AFFD(ED THEIR RESPECTIVE HANDS AND sFALS, THIS J DAY OF 200$ Witness LPer (SEAL) Witness Per (SEAL) Current address: 722 N. Pitt St.Carlisle Pa. 17013 ACCEPTANCE By signing below, the Owner accepts your offer and acknowledge i Owner: Douglas L. Zook 480 Rwrning Pump Rd and, PO BOX 1750 Lancaster, PA 17601 Granby, CO 80446 V . P r t Ronald D. Cederlund Laura L. Cederlund 120 Cranes Gap Road Carlisle, PA 17013 Damages to home discovered on 11/7/08 during in home inspection. Remove and replace carpet ................................................................................. $2,000.00 Multiple coats kilz floor to kill smell from animal waste Odor is terrible.....,..... ............................................................................................. 750.00 Rebuild wall torn out between bathroom and bedroom, Framing, Drywall Trim, paint ................................................................................................................ 2,500.00 Repair water damage and mitigate any mold ..................................................... 2,500.00 Repair broken pipe that caused water damage .................................................. 250.00 Total .................................................. ................................................................... $8,000.00 Douglas L. Zook Real Estate 480 RUNNING PUMP ROAD LANCASTER, PA 17601 Phone: 717-735-0033 Fax: 717-735-0029 January 15, 2009 Ronald & Laura Cederlund 1,20 Cranes Clap Road Carlisle, PA '17013. Dear Mr. & Mrs. Cederlund: This is to provide you with a Statement of your Account Receivable under your Residential Lease with Purchase Option Agreement. You have failed to make any payments since November 5, 2008 under the Agreement. You are in default of the monthly LP Payments for' December, 2008 and January, 2009, utility payments, taxes, and insurance.payments required by the Agreement. A Statement of your account is as follows: STATEMENT 10/31/08 Balance forwarded 11/01/08 LP payment Due 11/01/08 11/05/08 PMT received CH# 18236 11/05/08 INV# CEDUTIL1108 Due 11/ 15/08 North Middleton Authority Sewer/ Water 11/13/08 INV# CED1108UTIL Due 11 /23/08 York Waste 12/01/08 LP payment Due 11/ 1/ 08 12/01/08 Late Fee as Per LP Agreement due 12/01/08 12131/08 Late Fee as Per LP Agreement $3.00-@ 31 days 01/01/09 LP payment Due 1/ 1/ 09 01 / 05 / 09 Late Fee as LP Agreement due 01 / 01 / 09 01/07/09 INV# CED010709UT due 01/17/09 01/13/09 INV# CEDINS08/09 9/28/08-9/28/09 01/13/09 INV# CEINS07/08 9/28/07-9/28/08 01/13/09 INV# CEDSCHOOL TAXES 7/1/08-6/30/09 01/13/09 INV# CED2008TAX North Middleton and County of Cumberland 1 / 1 / 08-12 / 31 / 08(7.5monthsof$285.71) .00 995.00 -995.00 182.30 143.35 995.00 100.00 93.00 995.00 100.00 93.49 386.00 128.67 1,068.67 176.02 TOTAL $ 4,461.50 Douglas L, Zook Offices Attachment EXHIBIT ? G COMMONWEALTH OF PENV- IANIA 91 ? nn? INTY nF• C111110 DW. No.: 09-2-.01 MDJ Name: Hon. PJLV" P. CORRZAL Address: 2260 SPRIM RD SUITZ #3 CARLISLE, PA Telephone: (717 ) 218-3250 17013-0000 ATTORMM FOR PLAMIFF t A>NTZONY S. POTTZR 114 N $ZCOND 8T NARRISSURG, PA 17101 NOTICE UDCMENT/TRANSCRiPT Ar.81DENTIAL LEASE PLAINTIFF: NAME and ADDRESS rZOM, DOO'OLAS L 480 R IF RD LANCASTXR, PA 17601 L -? vs. DEFENDANT: NAME and ADDRESS rC==LMW' RONALD D, ZT AL. 120 CRAMS "P RD CARLISLZ, PA 17013 L -? Docket No.: LT-0000191-08 Date Filed: 12/11/08 THIS IS TO NOTIFY YOU THAT: Judgment: FM PLAI>ll ZZFF ® Judgment was entered for: (Name) ZOOZ, DOIIGW L Judgment was entered against rIZEIRLMM• WIVAIM D _ in a ® Landlord/Tenant action in the amount of $ 8.161.78 on 12/24108 (Date of Judgment) The amount of rent per month, as established by the Magisterial District Judge, is $ 995.00. The total amount of the Security Deposit is $ .00 Total Amount Established %MDJ less • Security Deposit AppiRent in Arrears $ 9500 $ . WNW-- Physical Damages Leasehold Property 00° WAkK/SEWER./TRAS•14 $ 325.65 -$ -00- Less Amt Due Defendant from Cross Complaint -- Interest (if provided by lease) LIT Judgment Amount 0 Attachment Prohibited/ Judgment Costs 42 Pa.C.S. § 8127 Attorney Fees This case dismissed without prejudice. Q Possession granted. H Possession granted if money judgment Possession not granted. Total Judgment Post Judgment Credits Post Judgment Costs Certified Judgment Total Adjudicated S4 6,1 ? 315 _ 65 $ _00 $ _ne $ s,oor n_oo $ 161.7s $ -00 $ 8,161.78 $ 11 Defendants are jointly and severally liable. --- IN AN ACTION INVOLVING A RESIDENTIAL LEASE, ANY PARTY HAS THE RIGHT TO APPEAL FROM A JUDGMENT FOR POSSESSION WITHIN TEN DAYS AFTER THE DATE OF ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. THIS APPEAL WILL INCLUDE AN APPEAL OF THE MONEY JUDGMENT, IF ANY. IN ORDER TO OBTAIN A SUPERSEDEAS, THE APPELLANT MUST DEPOSIT WITH THE PROTHONOTARY/CLERK OF COURTS THE LESSER OF THREE MONTHS RENT OR THE RENT ACTUALLY IN ARREARS ON THE DATE THE APPEAL IS FILED. HOWEVER, LOW-INCOME AND/OR SECTION 8 TENANTS 814OULD REFER TO PS.R.C.P.M.D.J. No. 1008 OR 1013 FOR DIFFERENT PROCEDURES REGARDING THIS DEPOSIIT. IF A PARTY WISHES TO APPEAL ONLY THE MONEY PORTION OF A JUDGMENT INVOLVING A RESIDENTIAL LEASE, THE PARTY HAS 30 DAYS AFTER THE DATE OF ENTRY OF JUDGMENT IN WHICH TO FILE A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. THE PARTY FILING AN APPEAL MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THE NOTICE OF APPEAL EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE Cot OF COMMON PLEAS AND NO FURTHER PROCESS MAYBE ISSUED BY THE MAGISTERIAL DISTRICT JU,DQE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED Itsi;'IliE JUDGMENT MAY FILE S A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, 8t SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 3 EXHIBIT ljjagj?j Date -- =, M isle 'Di cenny a s IF R rue an o e rec o p s con n g- he y jUdgmenL. i 2? Date fVlOgisterial Di commission expires first Monday of January, 2012 • SEAL' MyrC31BA-OB AO VERIFICATION I verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made are subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. #739043v14116-01 CERTIFICATE OF SERVICE AND NOW, on January 15, 2009, I hereby certify that I have served a true and correct copy of the within Complaint upon the following person(s) by U.S. Mail, Postage prepaid: Geoffrey M. Biringer MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 Antho y S. Potter #741483v1 4116-01 DOUGLAS L.ZOOK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Docket No. 08- 7547 V. CIVIL ACTION - LAW RONALD AND LAURA CEDERLUND, JURY TRIAL DEMANDED Defendants 'I'o: Anthony S. Potter, Esquire (Attorney of Record for Douglas L. Zook) You are hereby notified to file a written response to the enclosed Answer t6 Plaintiff's Complaint with New Matter, Affirmative Defenses, and Counterclaims, within twenty (20) days from service hereof or a judgment may be entered against you . Date: February 6,2009 By: Geoffrey M. Biringer, Esq. MidPenn Legal Services 401 E.Louther Street Carlisle, PA 17013 (717)243-9400 W W7 789 ftM-M NI?IIINI?IININNII DOUGLAS L.ZOOK, Plaintiff V. RONALD AND LAURA CEDERLUND, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : Docket No. 08- 7547 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' ANSWER, NEW MATTER, AFFIRMA'T'IVE DEFENSES AND COUNTERCLAIMS ANSWER 1. Admitted. 3 4 5 Denied in part. Defendants currently reside at 410 N. West Street, Carlisle, Pennsylvania, 17013. Admitted in part. Prior to the May 15 Agreement, the parties entered into an Agreement For The Sale And Purchase Of Real Estate on May 10, 2008, part of which is attached hereto as Defendant's Exhibit"1," the balance of which Defendant intends to obtain through discovery. Denied in part. The Agreement provided for a term of six and a half years, and taxes and insurance were only due if billed by the Plaintiff. Denied. Defendants are not obligated under the Agreement unless the Owner sends them a bill and, as will be more fully set out in Answer, New matter, Affirmative Defenses and Counterclaims, Defendants received no bills and Plaintiff thereby waived his right to collect the said bills from the Defendants. 6. Admitted in part. Defendants also took possession in accordance with the terms and conditions of the May 10, 2009 Agreement (Exhibit "1"). 7. Admitted that payments were not made, but denied that payments were due as is set out more fully below in New Matter, Affirmative Defenses and Counterclaims. 8. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof at trial. By way of further answer, and, as more fully set out below in New Matter, Affirmative Defenses and Counterclaims, all of the alleged damages, with the exception of the pet waste, were the direct result of conditions existing before the sale of the home to Defendants, that Plaintiff, his agents or employees, knew or should have known about before the sale, and, following notice from the Defendants, should have repaired immediately. As to the pet waste, Defendants were expressly authorized to have pets. Defendants thoroughly cleaned any pet waste there may have been from any and all surfaces of the home, at least to the extent they were allowed on the premises following their move-out on January 15, 2009. 9. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof at trial. 10. Denied. As is set out more fully in New Matter, Affirmative Defenses and Counterclaims below, the said damages were caused by pre-existing conditions and not the responsibility of the Defendants. 11. Denied. Defendants had the express written approval of an agent or employee of the Plaintiff, for pets. (Approval attached hereto as Defendants' Exhibit" 2.") 12. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof. By way of further answer, Defendants paid Plaintiff the exact sum of eight thousand dollars ($8,000.00) as Plaintiff claims in damages. 13. Denied. It is expressly denied that Defendants damaged the premises or failed to make requested repairs without good cause as is set out more fully below in their New Matter, Affirmative Defenses and Counterclaims. 14. Admitted that Defendants have not made payments, but denied that said payments are due, as set our more fully below in New Matter, Affirmative Defenses and Counterclaims 15. Admitted, but the allegations are irrelevant as Defendants' appeal is "de novo" from a Court not of record to the Court of Common Pleas. 16. Admitted, but the allegations are irrelevant as Defendants' appeal is "de novo," from a Court not of record to the Court of Common Pleas. 17. Admitted. 18. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof at trial. By way of further answer, Defendants were not responsible for any repairs and where any repairs were required, they were the responsibility of the Plaintiff as set out more fully below in Defendants' New Matter, Affirmative Defenses and Counterclaims. COUNT I-EJECTMENT 19. No response required. 20. Admitted that the Lease requires payment and that Defendants have refused payment, but denied that said payments are due as set out more fully below. 21. Admitted that the Lease requires payment and that Defendants have refused payment, but denied that said payments are due as set out more fully below. ?2. Denied. As more fully set out below, Defendants have not defaulted on the Agreement. breached initially by the Plaintiff, in his sale of a defective home to the Defendants. 23. Denied. No payments are due as the Plaintiff failed to send Defendants any bills for taxes and insurance, thereby waiving the requirement. 24. Denied. Said waiver and the waivers contained in Paragraphs 8, 8(a),15, 23 and 54, and the indemnifications contained in Paragraphs 11 and 48, as set out more fully below, are against public policy and constitute a contract of adhesion due to the unequal bargaining power of the parties to the Agreement. 25. Denied that any of the allegations entitle the Plaintiff to possession, but the issue is irrelevant, as the Defendants vacated the premises on January 15, 2009. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed and judgment entered for Defendants. COUNT II-BREACH OF CONTRACT 26. No response required. 27. Admitted that Defendants failed to pay, but denied that said payments are due as set out more fully in Answer, New Matter and Affirmative Defenses below. 28. Denied. Defendants have paid all bills that they received as they became due. 29. Denied. Defendants owe no late fees as is set out more fully below in New Matter, Affirmative Defenses and Counterclaims. By way of further answer, the late fees constitute usury and are not collectible as an unenforceable penalty. 30. Denied. Any damages found to be due were the direct result of pre-existing defective conditions that Plaintiff knew or should have known about and not attributable to anything done by the Defendants. 31. Denied. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof. By way of further answer, and, as more fully set out below in New Matter, Affirmative Defenses and Counterclaims, all of the alleged damages, with the exception of the pet waste, were the direct result of conditions existing before the sale of the home to Defendants, that Plaintiff, his agents or employees, knew or should have known about before the sale, and, following notice from the Defendants, should have repaired immediately. As to the pet waste, Defendants were expressly authorized to have pets. Defendants thoroughly cleaned any pet waste there may have been from any and all surfaces of the home, at least to the extent they were allowed on the premises following their move-out on January 15, 2009. 32_ Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and demand strict proof thereof. By way of further answer, Defendants paid Plaintiff the exact sum of eight thousand dollars ($8,000.00) as Plaintiff claims in damages. 33. Denied. As is more fully set out in New Matter, Affirmative Defenses and Counterclaims below, Plaintiff, by his own malfeasance and nonfeasance, is not entitled to any damages from the Defendants. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed and judgment entered for Defendants. NEW MATTER 34. Paragraphs 1-33 are incorporated herein by reference hereto. 35. Defendants made a down payment of $8000 to the Plaintiff with a pro-rata monthly payment of $495 for the month of May, 2008 and payments of $995 per month from June, 2008 through and including November, 2008. 36. Defendants stopped making monthly payments at that time due to unsatisfied complaints to the Plaintiff about the need for various repairs. 37. These complaints culminated in a letter to Plaintiff from Defendants' attorney dated July 15, 2008 listing the needed repairs. (Letter attached hereto as Exhibit" 3") 38. Although some minor repairs were in fact made by Plaintiff, most of the repairs requested in the letter were not made, including, but not limited to: a. New furnace never installed (inadequate heat pump installed); b. Water lines never properly fixed; one sink totally unusable, kitchen sink leaked into cupboard; C. Home on blocks rather than foundation as promised; d. Electrical service never properly repaired as circuits kept blowing due to improper power surges damaging computer equipment and appliances; e. Hot/cold water lines reversed; Plumbing leaks never repaired; g. Deck not properly installed; No furnace or oil tank provided; i. No promised materials for painting, drywall or molding 39. As a direct result of the inadequate heating system provided by the Plaintiff, Defendants were forced to use space heaters for at least the initial month of their tenancy, and suffered a spike in their electric billing in the approximate amount of $332.70 over and above expected billings. 40. On or about November 2 , 2008, Defendants discovered that mold was growing behind the drywall in the vicinity of a leaky pipe in the drywall between the bathroom and their daughter's bedroom. 41. As a direct result of the presence of this mold growth, Defendants and their children went to Carlisle Hospital for diagnosis and treatment, complaining of shortness of breath, headaches, asthma, and dizziness, and were advised that the dwelling was not safe for habitation. 42. Defendants contacted the Plaintiff, or his agents/employees to report the problem, and Defendants authorized their attorney to send a second "demand" letter to the Plaintiff requesting necessary repairs, particularly for the "serious mold problem." (Exhibit attached hereto as Defendants Exhibit"4") 43. Plaintiff took no remedial action whatsoever, but to send his agents or employees to look at the problem. 44. In the interim, and without money to relocate, the Defendants closed off the rooms affected by the mold, while looking for a place to relocate. 45. Defendants believe that Plaintiff was aware of the mold infestation before he entered into Agreements with the Defendants and deliberately hid the severely deteriorated condition of the home from the Defendants. 46. Due to the mold infestation and the generally deteriorated condition of the leased premises as set out above, Defendants were forced to move from the premises and incurred moving and storage expenses in the approximate amount of $690.74 47. Defendants vacated the leased premises on January 15, 2009, intending to return the next day to leave the premises "broom clean," and in at least the same condition in which they found it. 48. Defendants believe the Plaintiff changed the locks on the same day, preventing their access to clean and remove any possessions remaining on the premises. 49. As a result, Defendants lost a new set of Bose headphones worth $139.99. 50. In the May 10, 2008 agreement with the Defendants, Plaintiff obligated himself to supply paint and trim in exchange for Defendants' work before actual move-in, and promised to replace the furnace and repair the deck. 51. Defendants did the promised work and more, repairing an existing hole in the drywall, and expended $300 of their own money in the process on materials. 52. Plaintiff failed to reimburse the Defendants as promised. 53. Due to the failure of the Plaintiff, his agents or employees to take action regarding the Defendants' complaints as to active mold growth in the home, and the effect of said growth on the Defendants and their children, Defendants expended $550 for a "Wood Destroying Organism Report," attached hereto as Defendants' Exhibit "5." 54. As a direct result of the improper construction of the Defendants' deck and its placement on blocks rather than a solid foundation, Defendant Laura Cederlund fell off the deck and down the steps, breaking her arm. 55. Defendants have been damaged in the amount of money they used as a down payment ($8,000), monthly payments above $500 representing the actual value of the premises in their existing condition ($495 retroactive rent abatement for six months, or $2,970), $300 for materials to repair the premises prior to move-in as promised, excess electric in the approximate amount of $332.70, moving and storage costs of $690.74, headphones worth $139.99, mold diagnosis and report in the amount of $550 and an unliquidated amount representing the pain and suffering of their unnecessary exposure to harmful mold in the leased premises and for Defendant Laura Cederlund's broken arm caused by the improper construction of their deck AFFIRMATIVE DEFENSES I - ILLEGALITY- UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 56. Paragraphs 1-55 are incorporated herein by reference hereto. 57. By representing that the home in question was fit for its purpose, by listing some exceptions to fitness in the body of the Agreements, but not others such as the presence of mold, and by generally misrepresenting the quality of the home, causing confusion in the Defendants as to said representations, the Plaintiff has violated Pennsylvania'a Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-2(4)(ii)(iii)(v)(vii)(xiv)(xvi)(xxi). 58. Said misrepresentations were knowing and willful and were so blatant and disregardful of Defendants' health and safety that Defendants should be entitled to treble damages under the Act. WHEREFORE, Defendants demand setoff against any amount found to be due the Plaintiff, in the total amount of $38,950.29. II - FRAUD 59. Paragraphs 1-58 are incorporated herein by reference hereto. 60. Plaintiff. his agents or employees, knew of the presence of mold in the subject home and all of the deficiencies listed above when he entered into the Agreements with the Defendants. 61. Defendants relied on the Plaintiff's representations that the defects listed in Paragraph 8 of the May 15 Agreement and Paragraph 9, "Special Clauses" of the May 10 Agreement, were the only defects present in the mobile home. 62. Defendants have been damaged by their reliance on Plaintiff's misrepresentations in that much of the mobile home was rendered unusable, Defendants' family became ill as a result of the presence of mold and Defendant Laura Cederlund broke her arm as a result of the improper construction of the decking. 63. Plaintiff refused to make the necessary diagnosis and treatment of the mold problem and hid the presence of mold from the Defendants as well as the other deficiences listed above. WHEREFORE, Defendants pray that this Court setoff, against any and all claims that this Court may find due, the total amount of $38,950.29 III - UNCONSCIONABILITY 64. Paragraphs 1-63 are incorporated herein by reference hereto. 65. In presenting Agreements to the Defendants containing waivers such as those set out in Paragraphs 8, 8(a),15, 23 and 54, and indemnifications contained in Paragraphs 11 and 48, Plaintiff created contracts of adhesion which are against public policy due to the unequal bargaining power of the parties to the Agreement. 66. As a result of the unconscionability of Plaintiff's use of these Agreements, Plaintiff should not be permitted to benefit from his wrongdoing. WHEREFORE, Defendants pray that Plaintiff's Complaint be dismissed and judgment entered for the Defendants. COUNTERCLAIMS COUNT I-BREACH OF CONTRACT 67. Paragraphs 1-66 are incorporated herein by reference hereto. 68. Paragraph 48 of the lease, "MOLD," required that Defendants contact Plaintiff to advise him of the presence of mold and to receive suggestions as to remedial repairs. 69. Plaintiff, his agents or employees, following notice from the Defendants of the presence of water leaks in July, and mold in November, failed to suggest remedial repairs and failed to take any action whatsoever to diagnose and remedy the mold problem thereby breaching his agreement with the Defendants. 70. Plaintiff, his agents or employees failed to address or remedy any of the above- listed needs for repairs, thereby breaching his agreements with the Defendants. 71. Plaintiff failed to reimburse the Defendants for materials promised prior to their move-in, thereby breaching the agreements with the Defendants. 72. As a result of Plaintiff's breaches of the agreement with Defendants, Defendants have been damaged in the amount of money they used as a down payment ($8,000), monthly payments above $500 representing the actual value of the premises in their existing condition ($495 retroactive rent abatement for six months, or $2,970), excess electric in the approximate amount of $337.70, moving and storage costs of $690.74,mold diagnosis of $550.00, headphones worth $139.99, unreimbursed materials expenses in the amount of $300, and an unliquidated amount representing the pain and suffering of their unnecessary exposure to harmful mold in the leased premises. WHEREFORE, Plaintiffs demand judgment against Defendant in the amount of $12. 983.43 plus any other amounts this Court feels that the Plaintiffs are entitled to, said amounts requiring referral to arbitration. COUNT II - BREACH OF WARRANTY OF HABITABILITY 73. Paragraphs 1-72 are incorporated herein by reference hereto. 74. Due to the presence of mold in the leased premises, Defendants' resulting illnesses caused them to close off part of the leased premises and to open the windows in those rooms to provide ventilation. Defendants were unable to use several rooms in their home. 75. Despite notices to the Plaintiff, his agents or employees, to make repairs, Plaintiff tailed to take any action whatsoever. 76. Despite repeated notices to the Plaintiff of the need for repairs, as set out above, Plaintiff failed to take any action to correct the deficiencies. 77. As a result, Plaintiff breached the implied warranty of habitability as it applied to the Defendants in the instant case. 78. Due to this breach of the implied warranty caused by the defects listed above and, most specifically, the presence of mold, from the inception of the lease/purchase agreement, the premises were worth no more than $500 at any time during the lease (May 15 to January 15) and, as a result, Defendants are entitled to the return of their deposit in the amount of $8000 and retroactive rent abatement in the total amount of $2,970 (6x $495). WHEREFORE, Plaintiffs demand judgment against the Defendant in the amount of $10,970 and any other amounts this Court feels the Plaintiffs are entitled to, said amounts being within the amount requiring referral to arbitration. III. COUNT III-UNFAIR TRADE PRACTICES 79. Paragraphs 1-78 are incorporated herein by reference hereto. 80. By representing that the mobile home in question was fit for its purpose, by listing some exceptions to fitness but not others such as the presence of mold, and by generally misrepresenting the quality of the mobile home, causing confusion in the minds of the Defendants as to said representations, the Plaintiff has violated Pennsylvania's Unfair Trade Practices and Consumer ProtectionLaw, 73 P.S. §201-2(4)(11)(iii)(v)(vii)(xiv)(xvi)(xxi). 81. Said misrepresentations were knowing and willful and were so blatant and disregardful of Defendants' health and safety and that of their children, that Defendants should be entitled to treble damages under the Act. WHEREFORE, Plaintiffs demand a judgment against Defendant in the amount of $38,950.29, said amount being within the amount requiring referral to arbitration COUNT 1V-FRAUD 81 Paragraphs 1-81 are incorporated herein by reference hereto. 83. Plaintiff, his agents and/or employees, knew of the presence of mold and other deficiencies in the subject home when he entered into the Agreements with the Defendants. 84. Defendants relied on the Plaintiff's representations that the defects listed in Paragraph 8 of the Agreement and Paragraph 9 "Special Clauses" were the only defects present in the mobile home. 85. Defendants have been damaged by their reliance on Plaintiff, his agents or employees, and their willful misrepresentations concerning the alleged quality of the home. 86. Defendants' family became ill as a result of the presence of mold, and Plaintiff refused to make the necessary diagnosis and treatment of the problem. 87. Defendants were forced to relocate to get away from the problem and incurred moving and storage expenses as a direct result. WHEREFORE, Plaintiffs pray that this Court award Plaintiff damages in the amount of $38950.29, representing their total investment in the home as set out above, plus any other damages this Court believes the Plaintiffs are entitled to, all being within the amount subject to referral to arbitration. Date: /?' MIDPENN LEGAL SERVICES P BY: u A.,Lr Geoffrey M.Bi nger 401 E.Louther Street Carlisle, PA 17013 (717)243-9400 AGRF.FMENT'FOy-'T: &4MAl's P.U A-WE OF nEAL 'ESTATE 1`his fOft ?# nor but fit tea?C#c, to use by'zY?embpte af°te'?ter ?`.'LRSe AGENT FOR SELLER 5UB AC?EI?T"F(y?t, SELLEi AGENT FOR BUYER 777 4/ _PA. LIMWSED BROKER PA LICENSED BROKER PA "LICENS BROKER. This t`made'this day`;of . MA ; ding at ya. { x hereby: any tv acl}"# a to $ft v 4g ?? agte?st to L 'y kTAIi or ' mme {,, ?1?It1t' and- Jlmjw,6 of Y ut zitwr ic%m F 3YC ?,Y'`'. iE eg. } rt ¢? r_;w n. .t 00V of ?j?p?? hes'Q ? ?or:?h° • f, ifs?b?yyidabie) ?o by, dw s?, ?17?tFgfi! d#voided - ?> xt . ,;,,.,tom ? , '?? ??T? •o.. j'TKL'S ? •? i .. t J. y' rpi Y • ? x •Y. p...Q ika d ,.f j` ;Lt..;,+/+?.'y'b??ymn4 ?hA " A?•t?M+Oi'?C ?N k't't r *.? 3t •T? i',,r ?; y,? i'S?iFrt 9 i (C) ?ADD1'IY rt, .? t 9• rw t, ?? r .1, i c - (0 4ALAwt Old Pukcll A?"RI[ lit ? # 4+ p i `??. a?Ofib? C6eeft;,i?d)fir mN;????y}+ -+jr?k'6 t ?.??u ;. ? ,'??.• s? I¢ ? r+??? ? i' :?i+ i s ti ?.. t?? ; ??r ? ? ?i fe); " Wtia l a rrdval of &#W to be, a w* befeY? `? 9 ?» I s Tim f 1 .rY i.,l ,r?• 4u V } b. ? 3?;l+lMl?Ay y, ? ?t 3Y. ia? ,'P1Ct LNT3 ? ??{ ?? ? `.'•? ? a ?. ?, ?k??s?4~M , i? ? ? rrt ? ,f.. Y L +p! ¢: `fit .,l t ?,1 }f 1..n ?' Y ?y,?, k ; 4 .x a (a)V Seller shall maintain the property (including all items mentioned in paragraph X11 herein) and any personal property specifically scheduled herein in its present condition, normal wear and tear excepted. (b) Seller shall bear risk of loss from fire or ott--•ualty until time of settlement. In the event of damage to th_ )perty by fire or other casualty, Buyer shall have the option of rescinding this agreement and rec6.-.,g hand money paid on account or of accepting the property i.. as then condition with the proceeds of any insurance recovery obtainable by Seller. Buyer is hereby notified that he may insure his equitable interest in this property as of the time of the acceptance of this agreement. 16. REPRESENTATIONS: It is understood that Buyer has inspected the property, or hereby waives the right to do so and he/she has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by the Seller or any other officer, partner or employee of Seller, or by the agent of the Seller or any of the latter's salespersons and employees, or by a cooperating Broker, if any, or any of his/her salespersons and employees and that he/she has agreed to purchase it in its present condition unless otherwise specified herein and further acknowledges that the aforementioned parties are not qualified to render an opinion on construction, engineering, or environmental matters and that the buyer has been advised that he/she may require or wish to seek the assistance of experts in those fields. It is further understood that this Agreement contains the whole agreement between the Seller and Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement shall not be altered, amended, changed or modified except in writing executed by the parties hereto. 17. RECORDING: This agreement shall not be recorded in the Office for the Recording of Deeds or in any other office or place of public record, and if Buyer shall record this agreement or cause or permit the same to be recorded, Seller may, at his/her option, elect to treat such act as a breach of this agreement. 18. ASSIGNMENT. This Agreement shall be binding upon the respective heirs, executors, administrators, successors and, to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that the Buyer shall not transfer or assign this Agreement without the written consent of the Seller being first obtained. 19. NON-LIABILITY OF AGENT: Except as may be provided by d separate agreement or addendum to this Agreement, Agent(s) or Sub-Agent(s), if any, are representing Seller, not the Buyer. It is expressly understood and agreed between the parties hereto that the herein named agent, his/her salespersons and employee's or any officer or partner or agent and any cooperating broker and his/her salespersons and employees and any officer or partner of the cooperating broker are acting as agent only in bringing the Buyer and Seller together, and will in no case whatsoever be held liable jointly or severally to either party for the performance of any item or covenant of this Agreement or for damages fat the nonperformance thereof. 20. DEFAULT - TIME IS OF THE ESSENCE: The said time for settlement and all other items referred to for the performance of any of the obligations of this Agreement are hereby agreed to be of the essence of this Agreement. Should the Buyer: (a) Fail to make any additional payments as specified in Paragraph 4, (b) Furnish false or incomplete information to the Seller, the Seller's agent, or the mortgage lender, concerning the Buyer's legal or financial status, or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a mortgage loan commitment, or (c) Violate or fail to fulfill and perform any of the terms or conditions of this Agreement, then in such case, all deposit monies and other sums paid by the Buyer on account of the purchase price, whether required by this Agreement or not, may be retained: (i) by the Seller on account of the purchase price, should the seller demand the full purchase price, or (ii) as monies to be applied to the Seller's damages, or (iii) as liquidated damages for such breach, as the Seller may elect, and in the event that the Seller elects to retain the monies as liquidated damages in accordance with Paragraph 20(c)(iii), the Seller shall be released from all liability or obligation as this Agreement shall be NULL AND VOID. 21. RECOVERY FUND: A real estate recovery fund exists to reimburse any persons who has obtained a final civil judgment against a Pennsylvania real estate licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who has been unable to collect the judgement after exhausting all legal and equitable remedies. For com- plete details about the fund, call (717) 783.4854. 22. REAL ESTATE DISPUTE RESOLUTION SYSTEM: Any dispute or claim arising out of or relating to this Agreement, the breach of this Agreement or the service provided in relation to this Agreement shall be submitted to mediation in accordance with the Rules and Procedures of the Real Estate Dispute Resolution System. Disputes shall include representations made by the buyer, seller, or any broker, agent, subagent, or other person or entity in connection with the sale, purchase, financing, conditions, or other aspect of the property to which this Agreement pertains including, without limitation, allegations of concealment, misrepresentation, negligence and/or fraud. The provisions of this paragraph relating to mediation shall survive settlement on the subject property or earlier termination of this Agreement. Buyer and seller acknowledge that they have received, read, and understand the standard announcement brochure and rules and procedures for the Real Estate Dispute Resolu- tion System. 23. DESCRIPTIVE HEADING: The descriptive headings used herein are for convenience only and they are not intended to indicate all of the matter in the sections which follow them. Accordingly, they shall have no effect whatsoever in determining the rights or obligations of the parties. 24. AGREEMENT: THIS AGREEMENT CONTAINS THE WHOLE AGREEMENT BETWEEN THE SELLER AND BUYER. THERE ARE NO OTHER TERMS, OBLIGA- TIONS, COVENANTS, REPRESENTATIONS, STATEMENTS OR CONDITIONS, ORAL OR OTHERWISE, OF ANY KIND WHATSOEVER CONCERNING THIS SALE, EXCEPT AS ATTACHED TO THIS CONTRACT. [Do Not Write in This Space] This is a legally binding contract; if not understood. colisult y()ur a.tt(trhlel a.. Siatement: This Docttment may be ,e.utec bt i n,er o. S?!Iler al 'Q ,, ,e othe _ . .. . h. su h r ai:rt Cto;ument v .Y! (tt hmdinf . thou@' txf vied the or, the o.tc .;?. :. L . _ . . . ,. , : Ah t RU1 t. BS RU ER: :.r. v..., wit m, ti, 7 ue t:.. rrer, it Le V no, ht:e'r> Farr t,? r,et set 1 et I: :nds zn;: seals th ua,I a- i fir; L, w •, . rt --- S TO R' APP'ROV,L BI SELLER; Selle. (s; hereby approves comract t:tis oe of WITNESS AS TO SELLER SELLER _ AGENT BY: SELLER __ (SEAL] (SEAL) HSA #10 3/% Ex. "2" A trw.t t t OF LANCASTER, INC. TITLE INSURANCE & SETTLEMENTS 1903 Lititi Pike, Lancaster, PA 17601 Telephone: 717-581-58411 Court House: 717-509-4095 / Fax 717-581-5845 JPN-30-2009 13:33 Prom: To:243eO26 P.1/2 Ex3 Iil?Ilii id.Penn Legal Services 401 E. l.outhar Stmf% Suite 103. Carlisle, VA 17(.11,A 7t7-143.941111 FAX 7'17-243-8026 Too-Frwv 4ou-822-s2tw www.midpP.nn.,,#rU Douglas L. "Look, Owner Oakwood Humes 480 Running Pump Road Lancaster, PA 17601 July 15, 2008 Re: Laura and Ron Ccdtsrlund 120 Crane's Gap Road Carlisle, PA 17013 Dt? ar Mr. Look: Please be advised that T represent the above: individuals who are in the process of buying the above Maxie with a Lease/Purchase Option. While the Ccderlunds arc generally pleased with their home; and their bargain, they have some issues with neecssary repairs that they have brought to the attention, initially of Dave Miller, and then, at his request, to a "warranty work" phone number at 735-0030. Not having received any satisfaction with this approach, they have x4ed me to write to you with their concerns in the hope of an ainicablc resolution. These concerns are as follows; 1. Central air not working; 2. New furnace not installed; 3. Water linos not funcrtional: 4. Hotnc on blocks rather than on foundation as promised; 5. 200 amp service not finished (electrician on site three times, but did not finish the work or put in furntwe; 6. Hut water honked up to cold: 7. Leaks in plumbing; 8. Decks not installed where they belong; 9. No oil tank for hirnace; 10. No materials for the work purchasers are to do to paint, put up drywall and !holding; 11. No trash pickup for 3 wooks. _-. LSC I1. JAN-30-2009 13:33 From: Tv"?438026 P.2/2 I would appreciate if you would schedule these repairs at your earliest convenience. Thank you for your kind attention and anticipated cooperation. cc: Cederlunds Sincerely, Geofficy M. Biringer 70t-I Ex. 114" (3 pages) if, 114, k ' 1 l f , Y1n U iii : J..= ; SGUe:J,3; C.tliit:rti, .. . November 12, 2008 Douglas L. Zook 480 Running Pump Road Lancaster,PA 17601 Re: Ron and Laura Cederlund 120 Cranes Gap Road Carlisle, PA 17013 Dear Mr. Zook: As you may recall, I represent the above individuals purchasing one of your homes on a lease/purchase option. It recently came to their attention that water leaks from the shower caused a serious mold problem. The health of the parents and children has been impaired to the extent that they recently went to the hospital. All are ill, but most prominently, a child with asthma. I am enclosing, for your review, a copy of an estimate from a contractor to begin repairs, as well as a note from the hospital advising my clients to remove themselves from the premises which they are in the process of doing. I am asking you to make the necessary repairs to this home within one week of the date of this letter or refund the money the Cederlunds have invested in this home. If you do not do so quickly, because of the stated health hazards to the family, I will advise them to take the appropriate legal action against you. Thank you for your attention and anticipated cooperation. Sincerely, i Geoffrey M. Biringer --1L LSC .? V r la Pa e # . of a es _ p F ` C) ! + { T 1 el 1-7 l , t,1 t } V. ! ! 1. •.. J y. f L. f Proposal Submitted To: Job Name Job # Address /I I Job Location. 7 ( r? t-r? Cl. Q. . ('A'. _j_ Fax # We hereby submit sp"i%tions and estimates for: v e 0,-) 7 J_ Date Date of Plans 1 I Architect l' i r1 i`?' ,L• re propose hereby to fumish 'material and labor --- complate in• accordance with -the. above specifications for the sum of; ` b/d b • Dollars. th payments to. be made as follows:.-_-75 o/v Do ; r U p_ ate ' 7 re s } D i t J . ?J h I I W%wallon or deviation from above specifications Wohr M extra costs will be Respectfully, outed qtly upon *rMen order, and will'become an extra charge over and ve the esdmate,AN Agreements contingent upon strikes; koNdents, or delays Sul)mitted and our control. Note -+- this proposal may be withdrawn by W if not aocepted whW days. cce t ce of *ropoml above pdoes, speciflAUM and conmom are satisfactory and are SignatUre by aooMAed. You are auttrortted to do the worts as specified. nents will be made as outlkted above. 3.6f Aoceptance ' Signature lisle Regional Medical Center Emement-,Devartment I Alexander Spring Rd Carlisle, PA 17013 -- I) 960-1695 Patient: Cederlund, Laura Disch: 11/7/08 8:47am MD ED: Jean-Paul Homes, MD Medical Record: 190919 ies/PA/NP: 'TERCARE INSTRUCTIONS e are pleased to have been able to provide you with emergency care. Please review these instructions when you return home in ter to better understand your diagnosis and the necessary further treatment and precautions related to your condition. Your ignoses/prescriptions today are: Dx #1: Nausea (without Vomiting) Dx #2: Headache Dx #3: Environmental Exposure to Mold GENERAL INSTRUCTIONS - Rest in bed for days. - Take prescribed medication(s) as directed. - If you are not allergic to them, you may take acetaminophen (Tylenol) or ibuprofen (Advil) to help relieve any pain. I SPECIFIC INSTRUCTIONS: f/74 i I L at- S41 e- i• •• i 1 f you are not feeling better within 1 to 2 days, call your doctor. SEEK IMMEDIATE MEDICAL ATTENTION IF existing symptoms get worse or iew symptoms develop; such as chest pain, difficulty breathing, tomitinq, belly pain, unusual sleepiness, confusion, convulsions, )lurred vision, difficulty walking, a fever, cough, dry mouth, stiff ieck, headache or you pass out. In small children also look for poor eedinq, sunken eyes, decreased urination, a rash or increased rritability. General Information on HEADACHES There are many different kinds of headaches. "Tension headaches" come from a tightening of the scalp muscles. This often esults from stress or lack of sleep. "Migraines" are a particularly painful kind of headache caused by the temporary opening Lnd closing of certain blood vessels in the brain. Still other headaches can be caused by coughing, smoking, hay fever or imply the common cold. Some headaches last for just a few minutes and some drag on for days. Fortunately, most everyday headaches are elatively mild and last less than 24 hours. Sometimes a careful medical examination shows the cause of a headache, but sometimes it does not. In the emergency nom, it may not be possible to find the exact cause of a particular headache. Vhat are the risks? Most everyday headaches get better over several hours and do not produce any serious medical problems. There is, Ex. "5" WOOD DESTROYING ORGANISM REPORT This is not a sir,lctural damage report. SECTION 1 GenEral Information Inspection Address t v [_ aA V?+c?.-5 4 411 C, ;>A,--; ? U -T--A. 1'zof A Inspection Company GLADHILL PEST CONTROL INC. Inspector. GEORGE KING Co. Address P.O. BOX 41 STATE LINE, PA 17263 Co. Phone No. 717-597-1040 SECTION 11 Inspection Findings This report is indicative of the condition of the subject structure(s) ON THE DATE OF TIHE INSPECT ION C'ai_Y an-AI is 9 aD 1 IaG as an express or implied warranty or guarantee against latent, concealed, or future defects. Any such warranty or service agreement to provide future treatment or inspections may be provided as a separate attachmem. Based on a careful visual inspection of the readily accessible areas of the structure(s) inspected: A. NO VISIBLE EVIDENCE OF WOOD DESTROYING FUNGI WAS OBSERVED 4 B. VISIBLE EVIDENCE OF WOOD DESTROYING FUNGI WAS OBSERVED AS LOW S: W/ UL. Plew" r t44J4 i?a? Nt tj >a t C,d.owtP?t?) 7 ?- Fungi observed: (description and location) Any fungi observed appears: __ Active Inactive Treatment Recommended_:?,_ Damage from wood destroying fungi was noted in the following area(s): dt W, 4-A- m&A :r_ Lj i&i Acdu, i_+Pr_0=,AI IP_ irov, rq4,r_ Ai'4r_V*-9 -jg 4 A< 8 I - J -4_-t? LIMMMA- BPS i"?rj.1 Obstructions and Inaccessible Areas -The following areas of the structure(s) were obstructed or inaccessible: ? Basement The inspector may write out obstructions or use the )? Crawlspace b0 the following optional key: `W Main Level 1 1A 1.2 3? t 1 16 1. Fixed Ceiling 2. Suspended Ceiling ? Garage _ 3. Fixed wall covering fA Exterior 4. Floor Covering 9. Appliances 10. No access or entry 11. Limited Access 17. Exterior Siding 18. Vlfindow, well covers 19. Wood Pile 12. No Access Beneath 20. Snow ? Porch 5. Insulation 13. Only Visual Access 21. Unsafe Conditions ? Addition 6. Cabinets or Shelving 14. Cluttered condition 22. Rigid Foarn Board ? 7. Stored Items 15. Standing Water 23. Synthetic Stucco 8. Furnishings 16. Dense Vegetation 24. Ductwork, Plumbing And/or wiring Regarding visible evidence of wood destroying fungi: The inspector may find wood which has been damaged by fungi. Any damage noted should be considered only as evidence of current or previous activity of wood destroying fungi. If Box B is checked above, IT SHOULD BE UNDERSTOOD THAT SOME DEGREE OF DAMAGE, INCLUDING HIDDEN DAMAGE, MAY BE PRESENT. The inspector's training and experience do not qualify the inspector in damage evaluation or any other building construction technology and/or repair. There is evidence of the presence of excessive moisture conditions in untreated wood as follows: 0An 44OQ2 &A .61 A T ?'? Gam, +.? ?'`"-. <jv ? •>~'?(u Signature of Inspector. Neither I nor the company for which I am acting have had, presently have, or contemplate having any interest in the property. I do further state that neither I nor the company for which I am acting is associated in any way with any party to this transaction. Other_ Signature of Inspector Certification or Registration No. (if applicable) Date of Inspection IZ " ,;P6 VERIFICATION We, LAURA CEDERLUND and RONALD CEDERLUND, make this verification that the facts set forth in the foregoing Complaint, are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: ICJ/?' Laura Cederlund Date: .,> Ronald Cederlund CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing DEFENDANTS' ANSWER, NEW MATTER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS on this 6th day of February, 2009, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Anthony S.Potter, Esquire 114 N. Second Street Harrisburg, PA 17101 MIDPENN LEGAL SERVICES B y: Geoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 May 15 08 02:27p Dave Miller 0 932 9578 p,1 RESIDENTIAL LEASE WITH PURCHASE OPTION You, Ronald D. and Laura L Cededund (also called Lper in this contract), have given a deposit in the amount of $8000,W& thousand dollars). After the Owner of the premises accepts and signs this lease, your deposit will become non-refundable and will be applied as follows: To non-refundable option consideration....... .............................:$8000 Your first lease payment (also known as LP payment) is due on or before 5115108 for the period _5/15-5131/08................ : $497.50 The Non-refundable optic u consideration gives you the option to purchase the property during the term of the lease, so long as you do all the things you, are agreeing to do, when you have agreed to do them. If Owner or his authorized agent does riot accept and sign this agreement within 15 days, it shall terminate and your deposit will be returned Y on are offering to lease from the Owner the premises, described as a large double wide and the lot it sits on known as 120 Cranes Gap Rd. Carlisle Pa 17013 in the County of Cumberland, State of PA upon the following TERMS AND CONDITIONS. TERM: The tam of this lease will start on _ _5/15!08 , and end on 12/31/2014 , unless the purchase option is exercised before the option tez ninates in accordance to clause 29. 2. MONTHLY PAYMENT: The Monthly LP payment at the start of the lease will be $-$995 per month due in advance on the first of each, month to Owner or his authorized agent at the following address 480 Running Pump Rd, Lancaster, PA 17601 or at a different address if the Owner notifies you to change the address you send your payment to. The LP payment Includes 341- as a payment toward taxes and insurance. If this amount is not enough to cover the actual taxes and insurance, the Owner will seed you a bill for the difference which you agree to pay as additional rest within 30 days of bdog baled by Owner. ff you are ever fate paying a tai or tnanmeoe bill, then at Owners sole option you wig be given notice of the monthly amount equal to 1/12 of the estimated bum and insurance shord A that will be added to the monthly LP payment for f rtam tax and Insurance bills, which shall then be due monthly w?itb your LP payment as additional rant If you don't pay your payment on or before the due date you must pay Owner a $100 plus $3 a day until paid late fee. If you bounce a check for any reason you must pay Owner a $30 bad check fee. I/V have =land and _ the terms and conditions contained in this entire agreement E HIBIT 1 (2 May 15 08 02:27p Dave Miller. 932 9578 p.2 2 3. UTILffMS: You are responsible for the payment of all utilities and trash and other ongoing maintenance and cleaning services related to the premises. 4. USE: You may only use the promises as a single family residence. Any other use requires written approval from Owner. 5. PETS: You may not have pets on the premises unless you have written approval first from Owner. If Owner approves any pets, they must be kept in compliance with all laws. If Owner approves a particular pet or pets, that does not automatically approve other pets without written permission from Owner. 6. ORDINANCES AND STATUTES: You agree to comply with all deed restrictions, statutes, ordinances and requirements of municipal, state and federal earthorifies now in force, or which may be put into force at a later time, pertaining to your use of the premises. 7. ASSIGNMENT AND SUBLETTING: You may not assign this agreement or sublet any portion of the premises without written approval from the Owner. If Owner approves one assignment or sublet, that does not automatically approve other assignments or sublets without written permission from Owner. 8. MAINTENANCE, REPAIRS, OR ALTERATIONS: You have inspected the premises and acknowledge it is in good order and repair and accept it as it was shown to you. Any exceptions are noted here: Owner will remove the one add on deck, supply it's standard paint (LPer to do good quality full paint labor job), and remove wood stove. Electric heat furnace unit is functional, AC unit is not. 8.a. WAIVER OF WARRANTIES, ACCEPTANCE AS IS: This agreement constitutes the entire contract between the parties hereto and the Owner is not liable or board in any manner by expressed or implied warranties, guaranties, promises, statemwl% representations, or information pertaining to said premises. Except as noted on the line above, the Ll or agrees to take the premises as is and with any and all faults, known or unknown. The Leer waives any and aU statutory or implied warranties with regard to defects in, or the habitability of. the premises. The terms of this waiver shall survive settlement if Lper exercises the purchase option. You, at your own expense, must at all times maintain the premises in a clean and sanitary condition including all equipment, appliances, furniture and furnishings in the premises and shall turn it all back over to Owner, at the end of the lease period, if you do not examiso your option to purchase, in as good condition as received, except for normal wear and tear. Pet stains and odors and other pet. damage shall not be considered normal wear and tear, even if pets were approved by Owner. You must water and maintain any surrounding grounds, including any storm water facilities, and you must maintain drainage away from the house including any downspout extensions or pipes. You must maintain all lawns and shrubbery and keep the promises clear of rubbish or weeds. You must also maintain all facilities, mechanieals, wiring, roofing, siding, docks and other features of the home in good working order and appearance. You have inspected and verified the operatia; condition of the smoke detectors and agree to maintain them in an operating condition including weekly testing and battery replacement when needed, at all times. You must get written permission from Owner to paint, paper, or otherwise decorate or make alterations to the premises. e have d Il, and agree to the terms and conditions contained in this entire agreement zj-40? ,V. n, May 15 08 02:28p Dave Miller 0 932 9578 p.3 You must keep all kids toys in the back of the house out of site or inside when not being played with, no bikes, toys, trampolines, etc may be stored in the front yard. All grass must be kept under 5" in Length at all times. You must pay all the costs of maintaining the premises the same as if you actually owned the property without benefit of the LP structure. Upon notice from Owner, the local municipality, any state or federal agency, inchuding but not limited to Soil Conservation Service (SCSI or the Department of Environmental Protection (DEF% you must immediately comply with any and all assessments and requirements including but not limited to any National Pollutant Discharge Elimination System Parmit (NPDES) or other permit requirements pertaining to the property, at all times, and if Owner, at it's sole option, attempts to defend against such an assessment or regai mmient and/or receives a fine due in full or in part to your non- compliance with these requirements, you must reimburse Owner for all costs of defense against said action and also for (at Owners sole option) bringing the premises into compliance toggedrer with any fines and/or legal costs incurred by Owner by your failure to comply, at cost plus 20°Ye, within 10 days of being billed by Owner. This obligation shall survive settlement if the purchase option is exercised. 9. DAMAGES FOR NEGLIGENCE: You are responsible for damages caused by your negligence and that of your family or anyone you invite W the premises including any guests. 10. ENTRY AND INSPECTION BY OWNER: You must permit Owner or Owners Agent to enter the pmnises at reasonable times and upon reasonable verbal or written (at Owners sole option) notice for the purpose of nuddrag necessary repairs, or to show the promises to prospective IYer, purchasers, or mortgage's, or to we if premises is being kept in conformance with this agreement. For these purposes, 24 hours is deemed reasonable and acceptable notice. 11. INDEMNIFICATION: Under no circumstances will Owner be liable for any damage or injury to You, or any other person, or to any property, occurring on any part of the premises. You agree to hold Owner harmless from any claim for damages, no mattes' how caused, and you also agrees to indemnify Owner for any and all damage, losses or injury occurring on or because of the premises for which claim is made against the Owner or premises including but not limited to, costs and attorneys fees incurred in defending against any claims or in enforcing this agreement. 12. PHYSICAL POSSESSION: If Owner is unable to deliver possession of any or all the promises on the start date of the term, Owner won't be liable for any damages that result This will also not cause this agreement be void or void-sbtey except at ONmera sole option, but you will not have to pay any LP payment for the undeliverable part until possession is delivered. If this agreement applies to property which is new construction, possession shall be considered to have been delivered on the day after Certificate of Occupancy (if required) is received by Owner, or the date Owner notifies you the property is substantially completed if no Certificate of Occupancy is required by the municipality. You may terminate this agreement if full possession is not defivered within 180 business days of the start of the berm end al) option consideration paid shall be remanded. Any delay in the del ivery of physical possession WWI not extend the end date of the term or the option expiration date. Your LP payment obligation will start on the date of the start of the term according to Clause 1 above, or the date of the acquisition of any required certificate of Occupancy, or the date Owner notifies you the property is subahwially completed if no Certificate of Occupancy is required by the municipality, whichever is Later, regardless of when you actually move in. ?'?g eve read ?? fu?ly}nndorstan? and agree to the terms and conditions contained in this entire agreement Date May 15'08 02:28p Dave Miller 0 0 932 9578 p.4 13. DEFAULT: It shall be a default under ibis agreement if You fail to (1) pay the full LP payment or any other payment required by this agreement when due, or, (2) perform any duty, obligation, or fulfill any responsibility required of You by this agreement within 3 days of verbal or written notice of any such default. In the event of any such default, as set out in this section 13.(2) YOU MAY CURE THE DEFAULT BY PERFORMING WITM THE THREE DAYS. AS TO ALL OTHER DEFAULT, IT SHALL BE NON CURABLE AND the Owner, at his sole option, may terminate all your rights under this agreement, there is so notice required and no cure period for a default resulting from non-payment or late payment of the LP payment). In the event of a default by you lasting more than 3 days, Owner may elect to (a) continue the lease In effect and immediately acoelemate all payments due along with costs and fees provided herein, (without the right to purchase) and enforce all rights and remedies belonging to Owner under this agreement, including the right to recover the LP payment as it becomes due, or (b) at any time, terminate all of your rights under this amt and recover from Leer all damages incurred by reason of your breach of the lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease, even if your default be remedied after 3 days from the effective date of notice. Actual damages for the remarketing of the property shall be deemed to be 61/9 of the option price, plus all loss of rent and any get ready costs and costs of collection incurred by Owner until a new buyer or Leer is found. Pending an accounting of actual damages, liquidated damages in the event of a default shall be deemed to be $8000.00 plus costs of collection and may be pursued at Owners sole option in addition to other actual damages. 14. ABANDONED PROPERTY: If you abandon or vacate the property, while in default of the payment of LP payment, Owner may consider any property left on the premises to be abandoned and may immediately dispose of the same in any manner and/or at Owner's sole option, retain full and complete title to the property abandoned without any notice to Leer. In the event the Owner reasonably believes that such abandoned property has no value, it may be discarded. You agree that all property on the premises is subject to a lien in fiver of Owner for the payment of all sums due hereunder to the maximum extent set forth in this Agreement. 15. WAIVERS: No failure of Owner to enforce any term of this agreement shall be deemed a waiver of that tam currently or in the future, nor any other term contained in this agreement. Specifically, the acceptance of partial payment of LP payment or any other peymew required by this agreement shall never be deemed a waiver of Owners right to the full amount due. 16. NOTICES: Any notice, which either party may or is required to give may be given by hand delivery or by mailing the same First Class Mail postage prepaid to LPer at the premises or by posting conspicuously on the front entrance of the premises, or to Owner by bards regular and Certified Mail, postage prepaid to both addresses slaws below or at such other places as may be designated by the Owner from time to time. Notice to Owner shall be deemed to have been giver upon the day showing on the s'agaed certified mail return receipt. 17. NON-MODIFICATION: Acceptance of partial payments or a late payment by Owner shall not modify this agreement. 18. HEIRS, ASSIGNS, SUCCESSORS: This lease is binding upon and inures to the benefit of the heirs, assigns, and successors in interest to both the owner and You , except as precluded by Paragraph 7 herein. 19. TIME: Time is of the essence to this agreement This means all dates and time frames must be honored strictly. UWe a 11y, and agree to the terms and conditions contained in this entire agreement R. C May 15 08 02:29p Dave Miller 49 932 9578 p,5 20. HOLDING OVER. If you do not exercise the purchase option and you want to stay after the end of the term of this agreement is expired, then with the consent of the Owner, your staying will be a mores-to-month tenancy with the Mbar terms of the agreement, except the purchase option provision, remaining unchanged. When you want to end the month to month tenancy you must give 60 days written notice from too first of the month to Owner. You must give 60 days notice of your intention to vacate prior to the cad of initial berm. Your faffive to provide such 60 days notice shall be considered your application for holding over month- to-month tenancy in accordance with this clause. No such holding over or extension of this lease shall extend the time for the exercise of the purchase option unless otherwise agreed upon, IN WRITING, by Owner. 21. ATTORNEY FEES AND COSTS: In any action or proceeding involving a dispute between Owner and Leer to enforce the terms and conditions of this Iowa with option to purchase, or to recover possession of the premises from LPer, the Owner shall be entitled to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings in the amount of 5% of the option price or the actual fees, whichever is greater. 22. OPTION: So long as LPer is not, AND has not ever been at any time, in default in the performance of any term of this lease, LPer shall have the option to purchase the premises for a PURCHASE PRICE OF $129,900 plus all costs of Owner placing permanent financing to carry this for you, and any prepayment penalty required by Owners underlying lender at the time Lper exercises their option to purchase under the following TERMS and CONDITIONS: A. Each time the cutreat LP payment (as adjusted from time to time by the terns of this agreement) in the LP payment envelope is poshmdoed by the due date and mailed to the Owner, or electronic payment is made on or before the due date, You shall be entitled to a 9.99%APR 30 yr amortization credit toward the purchase price, when exercising the option to purchase. In the event that Owner's interest rate rises on arty mortgage he has on the property while you are leasing it, your LP payment andlor amortization credit (at Owners sole option) wig change, to reflect the increase. Depending on your start payment, you may have an Initial negative amortization credit: B. Your option to purchase cannot be sold or assigned without the Owner's written permission. You may not sublease the premises without the Owner's advance written permission. Permission to sell or assign the option, or sublease the premises, may be unreasonably withheld by Owner. C. If there is any default of any of the terms of this agreement that is not cured under the teams of this agreement or if it shall become necessary to evict the LPer for any reason or if the LPer does not exercise it's purchase option, the LP payment amortization calculation credit is cancded. D. When the purchase option is exercised the property shall be oonMod in its tben "as is" condition with no wwrantieshep esentations or guarantees by Seller. E. The nonrefundable option consideration shall be credited to buyer's purchase price along with any LP payment amortization credit earned when the option is exercised Except as expressly set forth in this agreement, NEIMR THE OPTION CONSIDERATION NOR THE LP PAYMENT AMORTIZATION CREDIT IS REFUNDABLE UNDER ANY CIRCUMSTANCE. F. You are responsible to arrange your own financing for the purchase price if you exercise your purchase option. IlW0 read stub (ly 1 ers au-d agree to the terms and conditions contained in this entire agreement May 16 08 02:29p Dave Miller 0 932 9578 p,6 G. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to increase the LP payment and/or interest rate for calculation of any amortization credit by 10°/a for each year in which there is any late payment, without further notice to you. H. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to increase the option price by 10% for each year in which there is any late payment, without further notice to you. F. On _ l1 2010 the monthly payment (before adding 1112 the estimated annual taxes and insurance) will increase by $150 and will increase $50 on January 1 of each year thereafter. 23. DISCLAIMER: You acknowledge that there is no way to know what the availability of financing, total purchase costs, and lenders prepayment penalties will be at the time you may decide to exercise your option to purchase. Therefore, you agree that these Items shall not be conditions of performance of this agreement and you agree that you have not relied upon any representations or warranties of Owner, his agents, brokers, affiliates, or other parties, in regard to these issues. 24. FIXTURES: All improvements, fnctwes, attached floor coverings, draperies including hardware, shades, blinds, window and door screans, storm sash, combination doors, awnings, and items permanently attached, shall be included, unless specifically excluded here NONE 25. ENCUMBRANCES: Leer shall take title to the premises subject to (1) Real Estate Taxes not yet due and (2) Covenants, conditions, restrictions, reservations, rights, rights of way and easements, if any. 26. EXAMINATION OF TITLE: You will have Fifteen (15) days after you notify Owner ofyour inuntioo to exercise the option to purchase to order at your own cost, from a title company approved by Owner at Owner's sole discretion, and examine the title to the property and to report in writing any valid objections you have. Any exceptions to the title, which would be disclosed by examination of the record, shall be deemed to have been accepted unless you report them within the allowed fifmn (15) days. If you object to any oweptions to the title, Owner may, at his sole option, use all due diligence to remove such exceptions at his own e3pume, within ninety (90) days after receiving your report in writing. But if such exception cannot be removed within the ninety (90) days allowed, or if Owner elects not to remove such exceptions, all rights and obligations hereunder my, at your option, terminate and and unless you elect to purchase the property subject to such exceptions. 27. CLOSING COSTS: At closing, You will pay all transfer tax, title fees and other closing costs. 211. PRORATIONS: All LP payments, taxes, premiums on insurance, and other expenses of the property to be prorated as of possession by You. have read , ful y t d tand and agree to the terms and conditions contained in this entire agreement n ate o .Ael May 15 08 02:29p Dave Mille W 932 9578 p,7 29.13MUTION OF OPTION: This option maybe exercised at anytime after 5/15108 and shalt expire at midnight-12/31/09 . After the expiration date of the option, this agreement shall be a lease only. Owner will have no further obligation to you related to the option and you will have no more rights under the option, whether legal or equitable. After expiration of option, Landlord at it's sole option, may at any bone give 90 days written notice to L.per and terminate the lease. 30. NOTICE AND EXERCISE OF OPTION: When you have decided to exercise your option to purchase you must mail a notice of your intention, together with an additional $1000 in option consideration, to the owner, at least 60 days prior to the cci trstion of this option. If you have not defaulted on any of the trams of this agreement, when you exercise the option, the non-ahndable option consideration and any credit due fmm the LP payment as noted in section 22 shall be credited to your purchase price and closing costs. 3 L SEVERABILITY: if any part of this agreement is held to be invalid or unenforceable, in whole or in part, then that provision will be ineffective only to the exbent of the invalidity or unenforceability without in any way affecting the validity or enforceability of the remaining parts of this agreement. 32. JOINT AND SEVERAL LIABILITY: If any default occurs, each of you, if there be more than one, shall be jointly and severally liable under all terms of this agreement. This means each of you may be held responsible individually for payments of all amounts due under this agreement. 33. OTHER DEBT: As part of this agreement, You agree to incur NO ADDITIONAL DEBT without the written consent of Owner. You also agree to pay all present payments on time. If you do not pay all present payments on time, or you incur additional debt without the written consent of Owner, you will be in default of this agreement. You agree that Owner or his agent shall have the right at any time to obtain a credit report and/or employment and income source verification on you during the term of this agreement and any subsequent agreements or actions related to this agreement. 34. INSURANCE REQUIREN ENTS: At all times LPer shall fully insure the premises for both physical damage and liability with the, Owner as the primary insured party. Coverage's to be minimum $500,000 ilability and option price. In the event Owner elects, at its sole option, to directly acquire insurance, LPer's payment shall be increased according to the cost of the insurance plus a 10°6 administration fee; in this ease, Owner's policy will not cover your personal property or HabllitN therriore Owner requires you to obtain a renters insurance policy to provide liability and contents coverage for you and your personal property and to name Owner as an additional insured on your renters policy. 35. SALES TAX: You are responsible for all sales tax due if the State determines at some time that this is a taxable transaction. In the event of a determination that sales tax is payable on the LP payment, yow payment will be adjusted accordingly. 36. VENUE: You agree that regardless of where this agreement was sighed, that this agreement shall be treated for legal purposes as entered into at Owners main office in Lancaster County, PA and that any legal actions that result from this agreement shall be in the proper jurisdiction of the District Justice of Owners current office in Lancaster County, PA or the Courts of Common Pleas of Lancaster County, PA or the District Justice or Courts of Common Pleas where the property is located, at Owners sole option. 1 W have read ?? 1-y` un nd and a e to the tetras and conditions contained in this entire agreement ??aw • " ? 6. 0. May 15 08 02:30p Dave Miller• 932 9878 p,8 37. OWNERS TITLE: Owner, as referenced herein, may be equitable and may not necessarily be the "record" owner. There may also be other equitable partners but Owner signing below has authority to act for all partners, if any. 36. OWNERS UNDERLYING FR4ANCING: Contingent upon Owner closing on the permanent underlying financing for Owner. In the event this does not closr, this agreement, at Owners sole option, may be declared null and void. 39. EN TM AGREEMENT- You acknowledge that this document contains the entire agreement between you and the Owner, his agents, employees or related parties and that you have no other oral or written agreements with Owner or any other person or business related to this property. 40. LEGAL REVIEW: You acknowledge that Owner has recommended that you have this Agreement reviewed by legal counsel to make sun you undwstand tho legal significance of all terms and conditions of this agreement and you have either A) done so; or B) waived this recommendation, You also acknowledge that this Agreement and all teems and conditions of k were open to negotiation and that you are satisfied with all terms and conditions, as they exist. 41. SUPERSEDING AGREEMENT: This agreement sups cedes all others between the parties and any affiliates. Nothing in this clause shall preclude the final reconciliation of all taxes and Insurance and any amortization credit duo under preceding LP agreement, if any. If at any time, to facilitate Lper obtaining financing, Owner and Lper enter into a simple sales agreement for the property, that sales agreement and any term within it shall never in any way supersede or modify the terms of this agreement. All teems of this agreement shall supersede all terms of any sales agreement done for financing convenience pwposes and the terms of this agmemeot shall remain in full force and effect at all times even when a lender is processing a loan under an additional sales agreement. 42. BROKER DISCLOSURE: Douglas L. Zook is a Licensed RE broker functioning solely as a principle in this transaction. You agree there are no brokers involved in this transaction unless identified here NONE 43. AUTOMATIC PAYMENT: You agree that all LP and other payments required by this Lease can be taken from your bank aocount by automatic electronic withdrawal out their due dates. 44. PRE-OCCUPANCY: Should you, with Owners required permission, occupy the premiss prior to the start of term of this agreement, you will owe in advance an amount equal to 1130 of the monthly payment for each day you occupy prior to the start of the term. No amortization credit will accrue for this preoccupancy. 45. NOT AN INSTALLMENT SALE: You expressly agree that this is solely a tease with option to purchase agreement and shall never be oonsttued to be an installment sales agreement under any circun ntance. 46. RECORDING. Under no circumstances shall Tenant record this lease. Landlord may record at his sole option. 47. LEAD NOTICE: If checked here, this is a pm 1978 home and a lead notice is attached; I1V1re read and y denstand affee to the terms and conditions contained in this entire agreement Date?? ?{? Ao,de May 1 5 08 02:30p Dave Miller • 932 9578 p.9 48. MOLD: Mold is caused by moisture and certain types can be a hazard to your health. If you ever have a moisture problem, whether it be from a pipe leak, roof kak, flood, or any other cause it is extremely important to address it immediately. Please contact Owner immediately if any moisture problem develops so Owner can suggest ways to minimize the risk of mold developing so you can protect your home and your health. Owner will not be liable for any damage or injury to You , your invitees, or any other person, or to any property, related to mold. 49. CARBON MONOXIDE: Carbon Monoxide is a byproduct of combustion of fossil fuels such as natural gas which your home maybe heated with. if you do not keep your heat system and hot water heater maintained, carbon monoxide can be, released into the home which can make you sick and can even kill you. It is your responsibility to keep your home maintained at all times including your gas systems to probed your health. While not required by law, Owner recommends you have a carbon monoxide detector operable in your home at all times. They can be acquired at the local hardware stone for less than $SO. Owner will not be liable for any damage or injury to You, your invitees, or any other person, or to any property, related to carbon monoxide. 50. RADON: Radon is a naturally occurring clear and odorless gas that can increase your risk for certain kinds of cancer and other illnesses if the concentration is too high. Nigh levels of radon are easily mitigated by a vent system. Owner makes no representations about the existence or non- existence of radon in this home. You are encouraged to satisfy yoursdf if you have any concerns about radon in your home. 51. WATER QUALITY It may or may not as yet be determined if your home will be dependent upon a public water supply or on a well. If it is or becomes depende nt upon a well, Owner makes no representations or warranties as to the quality of water from the well, the measures, equipment or costs which may be necessary to store, deliver or treat the water, in order for it to be suitable for domestic use and consumption. Under no construction of this agreement, implied or express, shall Owner be considered responsible for the ultimate quality or suitability of the water for domestic use. Water quality can grange over time due to many environmental and uncontrolled factors. Water testing is readily available and LPer is encouraged to investigate and become satisfied as to any concerns about water quality in your home. It is solely the responsibility of Leer to do so, if desired, and LPer agrees to hold Owner harmless from any claims by LPer or claims by parties in possession by or through LPer, from all damages, costs and attorney fees, which may be applied to Owner as a result of such claims. 52. ARBITRATION CLAUSE: This Agreement shall be governed by and construed in accordance %rittt the law of the State of Pennsylvania. Any action to pursue eviction or regain possession and obtain judgment for neat liability and property damage may be pursued in the appropriate cotnts of said state, at the sole discretion of the Owner. Any other claims or action, by either party, to enforce or interpret this agreement and all other disputes under the agreement shalt be resolved by binding arbitration in Lancaster, PA. Either party shall give notice according the notice proAsions of this agreement, sending the other a demand for arbitration under this clause. Both patties may agree on an arbiter or, if thay cannot agree on an arbiter within 30 days of the date of the demand, each shall pick an arbiter within 45 days of the date of the demand. Those two picked arbiters shall choose a Hurd arbiter within 10 days thereafter (55 days of the demand date) and the arbitration will proceed as directed by the arbiter/s and as otherwise proscribed according to the Laws of said state. Time is of the essence and failure to timely join in the choice of arbiter/s, by either party, shall be conclusively deemed a waiver of the right to choose and the matter will proceed under the single arbiter chosen timely. e ve read and =rand and T to the terms and conditions contained in this entire agreement te May 15 08 02:31 p Dave Miller • 932 9578 p.10 , . 10 53. REPLACEMENT CONTRACT: Should Owner determine at any time that he, wishes to partition the lose from the purchase option, Owner shall present you with the 2 separatc contracts with all material terms and conditions remaining substantially unchanged except for the partitioning and you Wee to sign than within 10 days. Failure to do so shall constitute a default of this entire agreement and you will be required to pay all of Owners legal costs in enforcing this agreement. 54. Permanent foundation and move to another lot : LPer understands the home is not presently on a permmaent foundation. At any time, with 30 days notice, Owner at it's sole option may elect to build a permanent foundation on this lot, or on one of the 5 other similar lots Owner has on Cranes Gap & Northview Rds, and move the home onto the permanent foundation. LPer understands they may be displaced for a few days during the move if elected by Owner. If Owner elects to move this house to a different lot, LPer agrees that the substitution of any of the following similar lots is acceptable. Cranes Gap Rd- 110,120,130,140, 204 and 1 Northview. By signing below, you acknowledge you have reed and fully understand and agree to the terms and conditions contained in this entire agreement and that you have received a copy of this agreement IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND HEREBY, THE PART MS HERETO HAVE AFFIXED THEIR RESPECTIVE HANDS AND SEALS, THIS Atom DAY OF 2008 Leer (SEAL) Witness y • 6r(SEAL) Witness LP0 Current address: 722 N. Pitt St.Carllsle Pa. 17013 ACCEPTANCE By signing below, the Owner socepts your offer and acknowledge i Owner: Douglas L. Zook 480 Running Pump Rd aid PO BOX 1750 Lancaster, PA 17601 Granby, CO 80446 MICHAEL G. TRACHTMAN PAUL A. U)GAN*°O GUNTHER 0. CARRLE* BRUCE D. LOMBARDO NEIL P. CwN, JR.* JONATHAN K. HOLIAN DAVID T. BOLDER RICHARD 1. DAVIBS*o STEVEN G. BARDSLEY* FRANK S. NoFER* ANTHONY S. P071ER° FREDERICK M. BREHM* DENNIS P. HERBERT* GEORGE T. REYNOLDS* PAMELA J. DEVINE RICHARD H. WELSH MARY J. PEDERSEN* JEN02ER L. SUnPE* MICHELIP K. MALLA)Yo KEVIN K. CARTON, JR.* CHRISTOPHERJ. AMENTAS* KEVIN E. MONASTRA* MICHAEL J. HOOK* ANDREWJ.PUOA* DAVID M. ABAANAC, JR. BENJAMIN A. ANDERSEN* MICHAEL W. NARDOLILLO* *ALSO ADMITTED IN NJ •ALSo ADMITIBD IN MD DALSO ADMITTED IN DE oALso ADMITTED IN NY t LAW (OFFICES POWELL, TRACHTMAN, LOGAN, CARRLE & L OMBARDO OF COUNSEL I RALPH B. POWEIL, JR. A PROFESSIONAL CORPORATION MALCOLM B. JACOBSON RICHARD T. ABBII 4 NORTH SECOND STREET 1 1 RICHARD L. BUSH . . HARRISBURG, PA 1.7101 MARSHA E. FLORA* 475 ALLBHDAIP ROAD (71.7) 238-9300 SUITE 2(X) FACSIMILE (71.7) 238-9325 KING OF PRUSSIA, PA 194(M (610) 354-97(X) APOT'fGR@P0\X1I:121)ZACHTMAN.COM FAX (610) 354-9760 WwwTOW ELLTRACHTMAN.COM SUITE 350 1814 EAST ROUTE 70 CHERRY HILL, NJ OR(X)3 (956) 6634421 December 4, 2008 8 FAX (856) 663-1590 PI.r.ABEREPLY To: HARRISBURl7 FACSIMILE AND REGULAR MAIL Geoffrey M. Biringer MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 Re: Douglas L. Zook/Ron and Laura Cederlund Dear Mr. Biringer: This firm represents Mr. Zook with respect to the above-referenced residential lease with option to purchase. We are responding to your November 12, 2008 letter. You raised issues related to damage to the property including plumbing leaks in the bathroom caused by the Cederlunds' failure to maintain the property. Your clients entered into the residential lease with purchase option on or about May 15, 2008. At the time the Agreement was entered into the pipe was not broken and no leaks existed. Indeed, my client renovated the property and your clients inspected prior to moving in. It is clear that the leaks developed within the past several weeks or months. Under paragraph 8a of the Lease with Option to Purchase Agreement, your clients, at their own expense, are required to maintain the premises "in a clean and sanitary condition including all equipment, appliances, furniture and furnishings in the premises ...." At an inspection of the property on November 7, 2008 by representatives of Mr. Zook, severe damage to the property was observed. The observed damage included animal waste on the carpet, a wall demolished, water damage as a result of a broken pipe in the bathroom, and the removal and carpet damage as a result of pet waste and water. #7303970 4116-01 EXHIBIT E Geoffrey M. Biringer December 4, 2008 Page 2 At this point, your clients have also failed to make the December 2008 Lease Purchase payment, and therefore are not only in default of their maintenance obligations but also in default of the payment provisions of the lease with option to purchase. Shortly after the November 7, 2008 inspection, Mr. Zook instituted an action before the District Magistrate Judge to obtain possession of the home based upon your clients' breach of the maintenance provisions of Agreement. During our telephone conversation today, you stated that you will call me tomorrow to discuss potential resolution. I look forward to hearing from you. Sincerely yours, Anthony otter ASP:mak cc: Doug Zook #730397v1 4116-01 21001 12/04/08 16:52 FAX 0 TRANSMISSION OK 8:k8??k8c#?k?B??Bc#t#S&8#?cS $a TX REPORT aaa arc*?a?aa*als*?esauas?s?:a TX/RX NO 3387 CONNECTION TEL 2438026PP411601 SUBADDRESS CONNECTION ID ST. TIME 12/04 16:51 USAGE T 00'57 PGS. SENT 3 RESULT OK IAw OrlW IMS POWELL, TRAcmmAN? LOGAN, CARRLE & LOMBARDO A rKOFF55106?M. CORP6RAT1 ON 1141Vtwm sn-CONI) SI'UM- I-iARRI5I31,1RC, PA 12101 (717) 231-9300 FACED1ILL (717) 338-9325 Arnrrca@PC)WELI CRAC]RnIA,'4.COTI wvvr,POM I? I,LTRACI f Cl.IAN-COAI FROM., Anthony S. Potter DATE: December 4, 2008 PHONE: (717) 238-9300 CLIENT MATTER: 4116-01 SUBJECT: Zook / Cederlund TOTAL NUMBER OF PAGES INCLUDING THIS PAGE: 3 PLEASE DELIVER AS SOON AS POSSIBLE TO: RECIVIENT COMPANY FAX No. PHONE NO. 1 Gcoffrery M. Biringer, Esq. MidPenn Legal Services 243-8026 243-9400 if you do not receive all the pages, please call 717-238-9300. 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Ureis oaqvbub liae ss . >,. 7' .rith ls bsbOHli oode er. if+aow. s NiatO zwMbvMs+R a A Nf Wisan atooa?soa?r or a osedtiaMe of ?sod?e aomplianoc !si baea isaitd far Nu awsNiq. rd?nw suowaa am la rao&Q. at two .,I, I , M aim* M&bumwd in &g bm laK pw d* ? nuk asudae iiiaia sod sao/wiO?MSidnellt laaw4?A:OaaMaaL3Mdk, Irasissst ?? ?is7AIMMMT,ZIFad _Pawwl wdsARNPO UMO MALI0an a 0 pl WSW pAAMOCMIMOF40L70a i0 0s irMaa„Mf. VMM &* ?? m 0 - aK Coughn LA Zak DNNra L M-K PnIdda d ps"6406 VERIFICATION I verify that the statements made in this Preliminary Objections are true and correct to the best of my knowledge, information and belief. I understand that any false statements made are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. #7390430 4116-01 CERTIFICATE OF SERVICE AND NOW, on February 25, 2009, I hereby certify that I have served a true and correct copy of the within Preliminary Objections upon the following person(s) by U.S. Mail, Postage prepaid: Geoffrey M. Biringer MidPenn Legal Services 401 E. Louther Street, Suite 103 Carlisle, PA 17013 (-?? 1?? Antho y S. Potter #741483v1 4116-01 3 r w # rv w?'? .®? em e f f a DOUGLAS L.ZOOK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Docket No. 08- 7547 V. CIVIL ACTION -LAW RONALD AND LAURA CEDERLUND, JURY TRIAL DEMANDED Defendants 1. Admitted. 2. Admitted, but the allegations are irrelevant as the appeal to this Court is "de novo." 3. Admitted. 4. Admitted. 5. Denied. Defendants voluntarily relinquished possession of the home as the home was not and had not been for some time, fit for human habitation due to the misrepresentations of its habitability by the Plaintiff before the Lease/Purchase Agreement and the Plaintiff's failure to make necessary repairs to the property. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted in part. Defendants also pled that the "Agreement" was unconscionable as applied to the Defendants. 10. Admitted in part. Defendants do not know if they have a complete and fully executed copy of the original "proposal to purchase the Property," and have sought the said original through discovery by means of written interrogatories and requests for production of documents (first sets). 11. Denied. Defendants are without information sufficient to form a belief as to the truth of the averment and demand proof thereof. 12. Admitted. 13. Admitted that the Agreement reads as stated, but denied, as a matter of law, that the said clauses were effective in that the Agreement itself was unconscionable as applied to the Defendants as pled in their New Matter. 14. Admitted that the Agreement reads as stated, but denied, as a matter of law, that the said clauses were effective in that the Agreement itself was unconscionable as applied to the Defendants and any waivers of obligations or implied warranties by the Plaintiff are unlawful as pled in Defendants' New Matter. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. Denied. On the contrary, Defendants in Paragraphs 36, 37, 38, 39, 40,42, 43 and 45, and in Exhibits 3,4, and 5 of New Matter, allege that Plaintiff was made aware of the mold, and expect to be able to prove at trial, based in part on the answers to discovery that are outstanding, that Plaintiff knew of the existence of mold and other defects complained of before entering into any agreements with Defendants. 21. Admitted, but denied, as a matter of law, that the request or demand for arbitration is required. Plaintiff, by his conduct, in seeking relief first through the Magisterial District Justice, and then in the filing of the instant case in the Court of Common Pleas, has waived his right to compel arbitration. I. Preliminary Objection In The Nature Of A Motion To Strike/Demurrer To the Cederlunds' New Matter and Counterclaims, Which are Subject To Arbitration - (Pa.R.C.P.Rule 1028(a)(6) 22. No response required. 23. Admitted, but denied, as a matter of law, that the request or demand for arbitration is required. Plaintiff, by his conduct, in seeking relief first through the Magisterial District Justice, and then in the filing of the instant case in the Court of Common Pleas, has waived his right to compel arbitration. 24. Admitted, but denied, as a matter of law, that the request or demand for arbitration is required. Plaintiff, by his conduct, in seeking relief first through the Magisterial District Justice, and then in the filing of the instant case in the Court of Common Pleas, has waived his right to compel arbitration. 25. Admitted, but denied, as a matter of law, that the request or demand for arbitration is required. Plaintiff, by his conduct, in seeking relief first through the Magisterial District Justice, and then in the filing of the instant case in the Court of Common Pleas, has waived his right to compel arbitration. 26. Denied. Plaintiff, by his conduct, in seeking relief first through the Magisterial District Justice, and then in the filing of the instant case in the Court of Common Pleas, has waived his right to compel arbitration. 27. Denied. Plaintiff, by his conduct, in seeking relief first through the Magisterial District Justice, and then in the filing of the instant case in the Court of Common Pleas, has waived his right to compel arbitration. WHEREFORE, Defendants request that this Honorable Court dismiss Plaintiff's Preliminary Objections Count I. II. Preliminary Objection In The Nature Of A Motion To Strike/Demurrer To Cederlunds' New Matter and Counterclaim Counts I,H III,IV Legal Insufficiency(Pa.R.C.P.1028(a)(4) 28. No response required. 29. Admitted. 30. Admitted. 31. Admitted. 32. Admitted in part. By way of further Answer, Defendants additionally base their causes of action on Plaintiff's failure to make the repairs complained of in Defendants Answer, New Matter and Counterclaims, Paragraphs 36- 40. 33. Admitted in part. By way of further Answer, Defendants additionally base their causes of action on Plaintiff's failure to make the repairs complained of in Defendants Answer, New Matter and Counterclaims, Paragraphs 36- 46. 34. Admitted in part. It is admitted that no express warranty is attached to the New Matter and Counterclaim, but it is specifically denied that no warranty exists, as the "implied" warranty of habitability exists with every lease of residential property in Pennsylvania and cannot be waived. 35. Denied. The Defendants cannot be held. responsible for a repair not immediately apparent from an inspection of the premises prior to move-in, and the responsibility for repair lies with the Plaintiff under the implied warranty of habitability attached to every lease of residential real property in Pennsylvania. 36. Denied. Defendants are without information sufficient to form a belief as to whether Plaintiff did or did not sign, acknowledge or agree to the representations in the Agreement for the Sale and Purchase of Real Estate, which proof is solely in the control of the Plaintiff. Proof thereof is demanded at trial. By way of further answer, Defendants allege that Plaintiff has a responsibility, beyond representations made, pursuant to his obligations under Pennsylvania's implied warranty of habitability. 37. Denied. The allegation is a legal conclusion which does not require a response. 38. Denied. Defendants allege that Plaintiff has a responsibility, beyond representations made, pursuant to his obligations under Pennsylvania's implied warranty of habitability. 39. Denied. Defendants allege that Plaintiff has a responsibility, beyond representations made, pursuant to his obligations under Pennsylvania's implied warranty of habitability. 40. Denied. Defendants allege that Plaintiff has a responsibility, beyond representations made, pursuant to his obligations under Pennsylvania's implied warranty of habitability. 41. Denied. The implied warranty of habitability cannot be waived in Pennsylvania. 42. Denied. As Defendants allege in Paragraph 38 of their Answer, New Matter and Counterclaims, the electric heat furnace was never installed, and other repairs were never undertaken. 43. Denied. Defendants allege that Plaintiff has a responsibility, beyond representations made, pursuant to his obligations under Pennsylvania's implied warranty of habitability. 44. Denied. The allegations state conclusions of law to which no response is required. WHEREFORE, Defendants request that Plaintiff's Preliminary Objections be stricken and that Plaintiff should be ordered to answer the New Matter, Affirmative Defenses and Counterclaims. III. Preliminary Objections In The Nature Of A Motion To Strike/Demurrer To The Cederlunds' New Matter And Counterclaim, Alleging Fraud For Lack Of Specificity (Pa.R.C.P. Rule 1428(a)(3)) 45. No response required. 46. Admitted. 47. Admitted. 48. Admitted. 49. Denied. Defendants are claiming that Plaintiff, his agents and employees knew that he (they) were selling the Defendants a defective home with leaking pipes and mold growth known only to the Plaintiff which will be established following discovery not yet answered. 50. Admitted. 51. Admitted in part. Defendants are relying, in part, on the receipt of answers posed by Defendants' Interrogatories and Request for Production of Documents (1st Set), for the purposes of preparing pleadings, preparing for the trial of the case, or for use at hearing on these preliminary objections as is permitted by Pa.R.C.P.No. 4001(c). 52. Admitted in part. It is specifically denied, however, that Defendants have failed to establish fraud, as the answers to Defendants' Interrogatories and Document Requests are still outstanding which answers will, in addition to that already pled by Defendants, suffice to establish Plaintiff's fraudulent conduct in the sale of the home to Defendants. 53. Admitted in part. Defendants are relying, in part, on the receipt of answers posed by Defendants' Interrogatories and Request for Production of Documents (1st Set), for the purposes of preparing pleadings, preparing for the trial of the case, or for use at hearing on these preliminary objections as is permitted by Pa.R.C.P.No. 4001(c). 54. Admitted that a section of the Agreement applies to mold growth, but denied that it is favorable to the Plaintiff, in that Plaintiff merely declared he had not tested for mold growth or taken any steps to remediate any mold growth. 55. Admitted. 56. Admitted. 57. Admitted in part. Defendants are relying, in part, on the receipt of answers posed by Defendants' Interrogatories and Request for Production of Documents (1st Set), for the purposes of preparing pleadings, preparing for the trial of the case, or for use at hearing on these preliminary objections as is permitted by Pa.R.C.P.No. 4001(c). 58. Admitted in part. Defendants are relying, in part, on the receipt of answers posed by Defendants' Interrogatories and Request for Production of Documents (1st Set), for the purposes of preparing pleadings, preparing for the trial of the case, or for use at hearing on these preliminary objections as is permitted by Pa.R.C.P.No. 4001(c). 59. Admitted in part. It is denied that the services of a qualified professional are required to state a claim for damages due to mold growth or indoor air quality. 60. Denied. Defendants are relying, in part, on the receipt of answers posed by Defendants' Interrogatories and Request for Production of Documents (1st Set), for the purposes of preparing pleadings, preparing for the trial of the case, or for use at hearing on these preliminary objections as is permitted by Pa.R.C.P.No. 4001(c). 61. Denied. Defendants are relying, in part, on the receipt of answers posed by Defendants' Interrogatories and Request for Production of Documents (1 st Set), for the purposes of preparing pleadings, preparing for the trial of the case, or for use at hearing on these preliminary objections as is permitted by Pa.R.C.P.No. 4001(c). WHEREFORE, Defendants request that Plaintiff's Preliminary Objections be stricken and that Plaintiff be ordered to Answer the Defendants' New Matter, Affirmative Defenses and Counterclaims. Respectfully Submitted: MIDPENN LEGAL SERVICES -A By: Geoffrey M.Biringer 401 E.Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court #18040 CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing Defendants' Answer To Counterclaim Defendant Zook's Preliminary Objections on this 16th day of March, 2009, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Anthony S. Potter,Esquire 114 N. Second Street Harrisburg,PA 17101 By: -?Le? A Geoffrey M. Biringer au* " Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 ? r" p?r?r ??' ? -? DOUGLAS L.ZOOK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Docket No. 08- 7547 V. : CIVIL ACTION -LAW RONALD AND LAURA CEDERLUND, JURY TRIAL DEMANDED Defendants PRAECIPE TO SETTLE AND DISCONTINUE Please mark the above-captioned action "settled and discontinued." :r, Esquire Douglas L.Zook /11 ;Z0019 Al . Geoffrey M. Biringer, Esquire For the Defendants Cederlund Dated: V131Z?0 FjLE D-Cl ?zC OF THE FRO P 1 '`!;'10TX1 y 2009 APR -3 Ph T 19 PEN' vU="fir`?