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L? F LED-r;F;-icp IN THE COURT OF COMMON PLEAS FOR CUMBERS &? PENNSYLVANIA 2010 JAN 15 Psi 2: 56 OAKWOOD HOMES, INC. § CIVIL ACTItNa?r-LAW 480 Running Pump Road § ' Lancaster, PA 17601 § CAUSE NUMBER. § 16- 34 Plaintiff, § V. § ERIN L. MATTOS § 1491 Olde Oak Court § Mechanicsburg, PA 17055 ORIG NAL Defendant, NOTICE TO DEFEND 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 the 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 t he complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GO TO GET LEGAL HELP. S Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street GK k Carlisle, PA 17013 3y? Telephone: (717) 249-2663 AVISO Le han demandado a usted in la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas signientes, usted tiene viente (20) dis de plazo al partir de la fecha de la demanda y la notification. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objecciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede decidir a favor del demandante y requiere que Page 1 of 5. usted cumpla con todas las provisionesde esta demanda. Usted puede perder dinero o sus propiedades o otros direchos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSIGUIR ASISTENCIA LEGAL. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-2663 Page 2 of 5. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA OAKWOOD HOMES, INC. § 480 Running Pump Road § Lancaster, PA 17601 § § Plaintiff, § V. § ERIN L. MATTOS § 1491 Olde Oak Court § Mechanicsburg, PA 17055 § Defendant, § CIVIL ACTION - LAW CAUSE NUMBER: F-6 ?j COMPLAINT NOW COMES Oakwood Homes, Inc., by and through its attorney, Michael Volk and respectfully shows this Honorable Court the following: Oakwood Homes, Inc. is a Pennsylvania Corporation in good standing having a registered office at 480 Running Pump Road, Lancaster, Lancaster County, Pennsylvania 17601. 2. Erin L. Mattos (hereafter "Defendant") is an individual residing at 1491 Olde Oak Court, Mechanicsburg, Cumberland County, Pennsylvania 17055. Service of Process may be had on Defendant at this address. Venue is correct for this action as Defendant resides in Cumberland County, Pennsylvania. 4. On or about 25 October 2009, Plaintiff and Defendant entered into a contract for the purchase of a house, at 382 Cameron Road, Etters, York County, Pennsylvania 17319. A true and correct copy of that agreement is attached to this Complaint as "Exhibit 1" and is hereby incorporated by reference. 5. Defendant gave Plaintiff the sum of $400.00 as a deposit towards the purchase price. 6. At the time of the execution of the contract, the real property referred to had a reasonable value of $186,300.00 which was agreet to by both buyer and seller. Therefore, the agreed purchase price and deposit was fair, just, and adequate. 7. The parties agreed on $186,300.00 as the purchase price for the property. Page 3 of 5. On or about 8 January 2010, Defendant ceased contact and cooperation with Plaintiff's agent with regard to financing and taking possession of the dwelling. As such, Defendant is in violation of Paragraph 20(b) of the Agreement which describes terms of default. 9. Paragraph 20 of the agreement styled "DEFAULT - TIME IS OF THE ESSENCE states as follows: 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, 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 could 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 is 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 shall be retained: (i) by the seller on account of the purchase price, should the seller demand the full purchase price; (ii) as monies to be applied to 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 20 c(iii), the seller shall be released from all liability or obligation as this agreement shall be NULL and VOID. 10. Plaintiff has performed all of the conditions of the contract that it is required to perform. 11. Plaintiff remains ready and willing to convey a good and sufficient deed to the real property as in accordance with the terms of the contract. 12. Defendant's refusal to cooperate with the financing of the property and her failure to honor the terms of the agreement have damaged Plaintiff in the amount of $186,300.00. Page 4 of 5. PRAYER WHEREFORE, Plaintiff respectfully requests that the Court grant judgment in his favor and against Defendant as shown below: a. $186,300.00 as damages for breach of contract; b. All costs of court; c. Plaintiff requests the grant of such and other relief as the Court deems appropriate. Respectfully Sub tte , Michael Volk Attorney for Plaintiff Oakwood Homes, Inc. Supreme Court I.D. Number: 88553 275 Cumberland Parkway, Suite 168 Mechanicsburg, PA 17055 Telephone: (717) 889- 5989 Facsimile: (717) 441-3803 Email: volklawoffice@gmail.com Page 5 of 5. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA OAKWOOD HOMES, INC. 480 Running Pump Road Lancaster, PA 17601 Plaintiff, V. ERIN L. MATTOS 1491 Olde Oak Court Mechanicsburg, PA 17055 Defendant, CIVIL ACTION - LAW CAUSE NUMBER: VERIFICATION I, Michael B. Volk am the attorney for the Plaintiff in this matter. I verify that the statements contained in this Petition are true and correct to the best of my knowledge. I am making this verification as the Plaintiff is unavailable and time is of the essence. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn verification. Michael B. Volk EXHIBIT I AGREEMENT FOR THE SALE AND PURCHASE OF REAL ESTATE This forth recomaltaded and approved for, but not restricted to, use by members of the Greater Harrisburg Association of REALTORSO AGENT FOR SELLER SUB AGENT FOR SELLER AGENT FOR BUYER ©N to oN Ivot?6 PA. LICENSED BROKER PA. LICENSED BROKER PA. LICENSED BROKER This Agreement made this Zr day of ?oac Zf I. PRINCIPALS Between (residing at } hereinafter called Seller, an (residing at hereinafter called Buyer. 2. PROPERTY: Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase: ALL THAT C$RTA1N Lot or pitta of ground with buildings and lmprov?enls thereon erected, if any, known as: 1%7- Ksl -tl nn 3. ZONING: Zoning Classification o - Failure of this Agreement to contain the zoning classification except in casts where the property (or each parcel thereof, if aubdividable) is zoned sally or priDlarily to permit single•family dwellings shall render this Agreement voidable at the option of the Buyer and if voided deposits tendered by the Buyer shall be eturned to the Buyer without a recialrement f court actin . 4. TERMS: (a) Purchase Price 4 s a„t me p{i ?(?y ??.. to be paid by the 8u er as faUow6: (S. "20o 00 (b) avDEPOSIT Check X Cash "mcm, sad of width Is hereby acknowledgged? or .....4 '` / ob 60 It Nose, I. be redeemed m er txlWe the day of (C) ADDITIONAL DEPOSIT disc m ce before the day of _ .................. S (d) 9AIANCE OP PURCHASE pR7CE as sesdemant nn II(eath, canified check, and/or nmrtgge funds) $ U?o. X00 TOTAL ......... .... db s n . ?'(e) manna apaovai W Idler to be an or befon theday of in Settlement to be made on or before the _ 7W _ dy of 71102, (t) The 1611-1-t Asst be apparel" frmsat. a or end ¦i Lime uf aeulemwn: Tana as levied ad assessed, reins, interest an mor gattee afnunpfwu, condom and barneowoa association fen if any, .ester and/or ssmcr serer irony, togelhtr with toy Other knabte munidpal Wvkcs. All Reshy Transfer Taxes Mitt be ded Mitt be cl divitees evady unless atkerwbs prodded herein. 5. PROPERTY SEITLERIE.YI' CONTINGBNCIfI Thtt apestteem It rublal to the senlemmt of BOYarY property Domed at on or before 6. FINANCING CONTINGENCY; This spectated It subject to the financing as rallotn: e C (a) PRINCIPAL AMOUNT E. TYPE MINIMUM TERM MAXIINIUM INITIAL L"ITERESr RATE % MAXMIUM TOTAL POINTS, INCLUDING LOAN-ORIOt.'YATION FEE, TO BE PAID BY THE BUYER. TERMINAL DATE for Obtaining Financing Commitment Broker may advise Buyer of.pnedble sources of mmegagt /aerate, but canna assume responsibility for otnaidag Bn]tr, countless. If said loan canna be obtained as herein Provided, Ihh Agreement song be NULL AND VOID and ey demi(monica tins be returnee to the Buyer Do or before dale or subject he ewer to IM pro-idom to Paragraphs 6(b) and d(c). settlement as provided herein. (b) BnYa abdl makes completed apdkatiaL to a tetpasa'bls Ivodiae inuitution flu the said ban .jtbia otlem" day& from the setters appso.at herwr. Should the Buyer fW to make such tompkled?p PEeatimt within the 1"drof time, it shag be at the option of the Seder, wither dve (7) akadas dept thereafter to; W Declare Ihir Agreement NULL AND VOID, m whisk time, as nets lasid on acaftt will be forithad to Seiler:, liquidated damages, subhox to the Rules Lad Regulations of the Ptmrib" RW Estate Commission. or all In absence of reduce soft to the Buyer by the 80a dacla wing this Ayeemem NULL AND VOID. the condition and wmlasessy ptovlded for in chit Paragraph, mgether wub any other anaadag continMcies that may be IledA or aedeesed beau, shell no baser prevaB, and this Aptcrecm shad, nsnain tffactive according to He terms In &a tatae manner a if Me caadgioa seed emdagmey were not a pert howl. {cj Serer or AEent ataai rgniw a wrltlm commieom valid nabs the dale of uldnnem, for the said loan, on or bictore the teminal date as specified, if the said conmammt u trot N jdlbtd with the terms is spedlted henna, or an ashes, terms acceytad in writ" by the Buyer, on at before the specified date, Seller than have the option, u sill date. or ceY alter dine thtmRa, dming the term of tlrb Apeemem, until, br4 not leeymd the daerof rew{a of thr commmuad by she Slier, or Agent to , derive eh4 Agrumrnt NULL ANO Y01D, try coriumantlers w tlsBoyer otisle/Ire dedsloa beasoul, al vbielt limo as deposit monde paid an account Out be reurned w the Buyer. ahjat w efts payment segtdred, lr !nY. peovlded for (n Pangnt? l=(bl' (?, III. and (di): (d) SsRer hereby apm to pewit 1osMpippe by susheeieed epprWeer, reprgble teni(iea an m Suye+ as my be requved bJJ sin lending iaantsmon err itstudng 111mcia. (c) Sager htreby aYees Io pry aeai tnonsate dhmuat ptdtm aad/m loan uirlcetion fa:k, an of a brsrer obaWng ftnaredns from a lending imawdm requiring any arts of W of aftltmdd fns. providing tin tans of aid tee don am trteed & of a amotmt of We pms[pg. i .5 7, STA OF wATEt AND attp'tRs Idler reanaass drat fish prtgperiy st serviced sty _ is sd Ir? ryity and tCUb _,L le.vFurther. Seller warren4 that shear 1yRace arc fully pfd for gad, 4 of the dace of Skit agresvwtx arc b ansfmmy opdufng oxmdiu . If cithtt aforesaid ayttem Is prsvue, Settn warssms tlsu ha/its Ire m antics hour Iht municipality or Team mWidpal antboaitin tfuu public cone and/or savor sal be stressed or inaalled. g. MUNICIPAL IMPROVr. 1T8; Sete 1511011, Wtu o mualcioai imp[rwwrenn(wch as sidawalke, Car leg, ate.) except Access to a public mad may reQuin Ilwance of a EUgbway otermency permit Gam the Depanmam of Tramponation. P. SPECIAL CLAUSFS. 10. ATTACHED ADDENDA are made.a pert of this Agreement; e wood ]of=,X_ ? Rid- Disclosure O ?Pri• wusr/Os?yn SeagK OPHA/YA ? Dual As"fY Consent ? Home lntpeeton s); "x tit It. PERSONALTY+ All aisdns phunb1% he.lby, adibaamt and lighdat from (including dsadelL" and coians fain) and ayttems appunmm akvao and fora42p sstpd aed?f. a and then p ouvresian in MLL ag'all ranges, laundry tubs, T.Y. amanm, miss and rotor systems, totatber wick well to wall carpeting, mums, scam rods. dre led h. the" ard gs' ants-. coupling for aaomedt wubm and dryers. ere. tadWor envoi, comics, water eofteaen, kitchen ubiom, dram PeY wan, cannot r cartels sod hardware, all dmbbery planting now in or on Y. swag door opens, -hods: If an poaperf r. urdwt apwrinuy etexpted In this Agttemeen, cost taelaaataa'fa she sale and ptudnne Wvf ern on s of sup oboe towumea teems s s tote of ells Apartment. Any redteia6og heidng andfot epakias fuels sword the kW16e also Intl duced d ender Udi gr she uSeller g, S from pby warrants rata that be/she Will. deliver good idle to ag of the articles described In this V pre a at dine ofre eor n of Personality n also Included under [her Auwnwe SAar hereby revrana mile. Seller warrants all gmnhi headers. ic ecto psdfic working orrdd to be t ofincluded hem this i11CCImnIW aid a riW sad d aysscuts any and aehee aqulfiuvpmeroas or and d tip ap i plivses to be be lot prom waking coder or rims of seuesnon. This wartatty dais nnlsumin clonal t. .d 8cHZ'ON •;111 'szuluy PO3AYIPo °dGC:z 6 p+lZ yz a3 12. TITLE AND COSTS, (a) F1-i4filit bWIOGRj reaflc nanRt adrdeeaoeef, coruscat of roads pr?i?i hets ot yfghes of debt o¢ urvirnm braeen am eoaemeots, BXCEpT INO HOWRVRR, tha(oflowing othawtse cba fitk to sets abovA aeraebed Cast puce Shall be good and markesable p ,sell er l i service be w' mtd.byUSY or e?nrr as rauLUont visible upon the grmuW Ibl The Bum *: qpayY for ins fullossieg: epnabM 11110 insurance company at the lalwar ram. W The car am for title Insurance, mechanics lieu magrarga t andfat Usk much or fee for cancellation of same, if any. (i) The pvemlem fa flood insurance and/or fin insurance with extended at wait, insurance binder charges or caneelletion fee, if any, (iii) Appraisal feu and charges paid in Advance to mossaagee, if any G.1 Buyers normal rattlander coal and accruals oaks; ath"got stated harem. 7q Any Survey of swvaa which may be targed by the Title insurance Come" or the Absuactins uterrdty for Lilt proparadaa of an adrquata Irani description of the Diarists (at she correction thereoq, shall be secured and paid for by the Stf(er. However, any survey or surveys dapted by the Buyer or required by his manaatee shall be Secured Bud Paid for by the BuYCt (d) 1s. the event thejjSeller '13 unable to give n goad and marketable tide or ..h as will be insured by a reputable hale company, twIlim or afortWd. Boyer shoji have the iw oft ppc ?np no i soct II dmI the the Bill for gin elve without any Dour ibm;uned t at prim or of being snoring all manits paid by the Buyer to she Sdkt oo eatimit of ilet:machett "Un and in She letter shs it thug Snell be no swlhes l abplty Car abjection athe n Piisherr oI meprc tiara spt an Sn P Ajlrft 13th) hems lit, Ifi). (pal and . ph 11(0); s3. PAYMENT OF DEPOSITS parties srao and this Agreement stall became NULL AND VOTDO(D at. ascDeposits, i, or tileer of the form of payment and the rmperson ity h all applicable layest, Shall be paid Aeeat for the Seller who ; Shift retain Them in 7a.En t until contamination assigned or e sod pending is Aircemon. in a conformity With all apppenble bh laws antl regulations. Agem for the Sella mayy, a u his or or her wig origin, hole any antxabed chout eheok assigned as u d deposit, pending g She aeapance of this offs. If there a a distant bawao the (sent and The Shcer over who is gmhled to the acposp. Agent will not be responsible w resolve this dispute and will not be pabk to diber Buyer of tot Sella far refusing to release the deposit without in adequate wrlpen Ag[amens between Buyer and Seller or a wild touts aides. Buyer and Sd(cr agree Ihnt, in the ever,: the Agent and/or Subagent ereris jo(aul in 11111Wo0 for the :aurn of depaw monies, th. Aston's and/or Subig-i's riaortable ulorney'i fees and costs will be paid by the party jaeofne the Agent or Subagmt. 14. POSSBSSION AND TENDER: C-) Possession Is to be delivered by deed, keys gad physical pbsrttilon to a vacant budding (if any) at day and time of aatlednal' of by deed and asdgnmrns of seising base(s) a she time of em tm?ing of.nhis tresuped ,tilt ale d i of this .Agreerosnt, unkis othawiu spnTped dlerein, pu)w will hcknowlutge atniae Icucfs) by initialing said kafels) (q a at c tinte s of f q Apeenmt of Sale d Ieaent aeenpied, (b) Scutt vSR not enter into any new Intone el, written tuawaaof ealsung haagq, !rally. or additional leases) for the prembci w.ii1 o is expires wrhrm consent of the Buyer (-) Formal insider of an executed used and purchase Money it busby waived. (d) Buyer rtunes she right to snake a prtrstllemcnt Inspection of the subject oremita, sad will execusc appropriate dotmneneatlon of Such impeesieh, 15. RISK OF LOW iA) Seler aAW maintain the property (Including ad Betas tiennoold in paagropb!( I herein) and any personal property specifically scheduled hails. in 115 Present t.ndsoon, normal weer and lea battered. (b) Sella ship bear risk of loss lrrnn fire sir other casualty until time of mdament. In she Neat of damage to the property by foe of other easurhy, Buyer Segall have Stu option of reminding this sateement and reeriving blind maacy paid oo account of of scanting the property to its then condition wish the paimedis of My smarance recovery Obtainable by Seller. Buyer Is ha.by aoiffied Shot he may insure his unstable interest in this properly as of she time of the acceptanct of this agrttment. 16. REPRESENTATIONS: It It understand the Buyer has inspected the properly. or hereby weiva the IS' IS: to do an ¦nd he/she bee Pulsed to purethisc it as a mean of such mspecGan And not betide of err in rtpangs upon any represmwian made by the 8sikr or soy other officer, pnrma or employee of Seller, or by She stmt of the Selkt at say of the li,,Wl talstparfOns snit employees, or by a-cooperating Broker. if any, or asyq of hla/ha Salespersons and employees and that he/she has Prated to purchase IS in sit present COISOWn unless atherwilt sp.eafkd hacia gad further ?egnowlalgts thin the ifortmeatiodad Buda ere nor qualified to tinder An mtusdoa On mmtratuon chdhterslnt. w rosirlitiamtal -Sax mdtbPt the buys has ball adviad that MAN may require or wish to Seek then4stance of caperu in those fiddi. i1 is twine understadd thtt this Agreement eooulns the whole anreemeos b%waeo the Stela and Buyer and than we no other terms, obl4milom, cavearap, repraematiom, Intemews or conditions, Oral at OthIrwin or any kind rhatsotvas tmgtTrunt this soft. Furthermost, INS Agreement shall not be Altered, amended, thimged or modified aasspl in wristme executed by the parties hereto. 17. RECORDING: True auumcnt sbas not be recorded IA the Office for the Reamdies of Dad, or in any other olfges of place of public record. and if Buyer snail ruard this egrtantnt car aurn or peneft the store to be recmded. Sestr may. as hhJher option, elect la gnat Such act u a breach or this agreement. rs. ASSIGNMENT: This Agreement Strap be bitlaine upon she respective hairs, executors, admirusiruon, sutWdota and, 70 the agent lasignabk, on the assigns of the panics hetelo, is wain; uprasly understood, however, this the buyer thatl not eramfer or assign dos Apetmcm Willsoot the written coastal of tilt Stlfer bring fins obtained. 19. NON-LIABILITY OF AGENT: Except u may be provided by of siparam sumement of iddenCam in this Augment, Agent(s) Sir Sub-ACent(s), if env- are representing Scllct, not the Boyyer- ltco erprtisly understood and Asphd bet.-St, the parties haato that the nadirs named agent, h!Vher salespersons and -em y operating hrektr and hi0ha swespetsmin and employees and ally officer a onner of the ton pl employees or nh, in b is In pursuer Buyer agent antl gatogether, and will in no cost whatsoever be held liable dud or severally t p ntating broker are feting u al t.t . of only in trro the a and Ss :he nmperfurmAnetihereaf- I Y to tither party for the performance of Any stem Or couena rills Agrcammen ent or for m damages rat for 20. DEFAULT - TINNE IS OF THE ESSENCE; The said store for sasiemmt and W other hems referred :a for the performance of any or the obligations of shit Agreement ere hereby agreed to Or 01 rha essegte of ;his Australian. Should the Buyer- (at Fail to make toy additional payment in sp rgined In Paragraph d, sib) Furnish faltp or mrmapltte information to the Sella, the Super's arms, or the morgage lender, cmeetn(ng the Buyer's treat err arunpal Smile, or fail to cooperate in the procersmg or the mortgage foss. apphealop, which Aug would result in the figure to obtain she ¦ppiawhi or a msuSeagc loo commitment. at (c) %'iont or .rc p ueg wnthaf orm any abbe terms or condition of this Agreement. then in such ease, All drpos;d monies and other sums paid by the Buytr on account of She requital by Ib(I Agreement or not. may be retained: (q by the Sella an raeap! or the purchase price, should the Sella demand the full purehue price, or (ii) AI monist to M appssd to the Setters damages, or (iii) At Gyuidated damages -for such branch, 3t the Seller may eetcl, and in the eras that the Seiler areas to latain the m0ldet a liquidated damatet in acosdaocc with Paragraph 20(c)(pi), the Srller Shall be released from ail liability or obligation as this Attenuated shell W NULL AND VOID. 21 RECOVERY FUND: A real estatt recovery fund miss to reisnbwse any person; who hot obtained a final civil jadrment against a Pennsylvanle real tilers liceal" ..its to fraud, miirtprucneauan, or deeah is a red state vaenaalon and who has been unable m count the judgtmrnl After tthauslipg as legal and equitable remedies, For com- pute details about the fund, call 012( 283-atS6. 21. REAL ESTATE DISPUTE RESOLUTION SYSM11: Any dispute m Claim arising out or or Intel. to this Agreement, the Ismail or this Agreement of the lervke provided In rNalion to this Aptemem this bt sbbmhted Ill mcdluion in sceordnner wish the Rake and Proc lees of the Real Emir Dispute Restriction Syrum. Disputer lhep include nprescatapods made by the buyer, sister. or any broker, gent. subagent, or other puaon m slight, fnmantalon with the nil, purehue, financing, conditions, or tether aspen of the property to which this Agnomens penalne including, whhnud limitatim, assearlm; of cmmalmant, misrepresentation, ntglitmee and/or fraud. Tilt pt.vinans of this paragraph Painting to mediation aball survive sattlemest on the sublets PCOPat Y or eerfia feeminadoa of this Agmagitol. Buyer and itlire itknowsedes that they have received, red, red understand the standard anmunctmenr htochme and rules and ptoce0urs, for the Real Estate Dispute R1101u- uoa System 23. DESCRIPTIVE HEADING: The descriptive headlan used Attain are for coovailenu only and they are no: intended to indicate all of the muter in the "client which [oil- them. Awordtagly, they hall have no Affect whapoeva in daat(dmng the rights a, bbpg.u.ns of the parries. 14, AGREEMENT: THIS AGREEMENT CONTAINS THE WHOLE AORED-FENT BETWEEN THE SELLER AND BUYER. THERE ARE NO OTHER TERMS. OBLIGA- TIONS, COVENANTS, REPRESENTATIONS- STATEMENTS OR CONDITIONS, ORAL OR OTHERWISE, OF ANY RIND WILATSOEVER CONCERNdNO TNIS SALE, EXCEFT AS ATTACHED TO THIS CONTRACT, ]DO Not Write in This Space] This is a legally binding contract; if not understood, consult your attorney. ran Shattering; Thp Desummt may be executed by iht Bayer ortSt a Audi l Oocumad b the other fa enaullmi by takres, w11rn caviled and delivered in such manaa, III!, Daumale will be binding a (hough examed by the tB„ys APPROVA BUVE slims whaeuf, the calls' Retail. intending to be steady b//boo???und hereby, how geotmeters Intel hands¦nd sells the day wad yen first abowwrittcn. *1711 At BUY BUYER E (SEAL) 1yiTN65i AS TO HOVER BUYER (SEAL) APPROVAL 11f b-ELLER: SNder(s) hereby oppeows comma this day of wrrass Ag TO SEL k SELLER AGENT BY; (SfiAL) 6 3c6 Z'"r :uI 's a:LOH F•3)Al.%? Ed94 Z 6 0ilZ jZ "'S, t ADDENDUM "A" to Agreement of Sale Dated 25th of September, 2009 Between Erin L. Mattos and Oakwood Domes, Inc. (Equitable Owner) for 382 Cameron Road, Etters PA 17319 (Tag JD #67-27-000-QG-0097-00-00000). ACCEPTANCE AT MOVE IN; The `house is planned construction. Before you move in you agree to inspect the home. By moving in and taking occupancy you acknowledge the home is in good order and repair and is accepted by you as shown at time of move in. If you have any objections to the condition of the new home, Seller must. acknowledge theta in writing prior to you moving in, otherwise you have accepted the home in as is condition at the time of move-in. OTHER DEBT: As part of this agreement, You agree to incur NO ADDITIONAL DEBT prior to settlement without the written consent of Seller. 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 Seller, you will be in default of this agreement. You agree that Seller 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 agmentents or actions related to this agreement. SELLERS TITLE: Seller, as referenced herein, may be equitable and may not necessarily be the "record" Owner. BROKPA DISCLOSURE: Douglas L. Zook is a Licensed PA Real Estate broker fimetioning solely as a principle as president of Oakwood Custom Homes, Inc in this transaction and may also be record owner. You agree there are no brokers involved in this transaction unless identified here NONE Buyer hereby designates Abstract Associates - Bill Stull- 717-581-5841 as title company for closing. EN'T'IRE AGREEMENT. You acknowledge that this document contains the entire agreement between you and the Seller, his agents, employees or related parties and that you have no other oral or written agreements with Seller or any other person or business related to this property. RECORDING, Under no circumstances shall Buyer record this agreement 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 Seller immediately if any moisture problem develops so Seller can suggest ways to minimize the risk of mold developing so you can protect your home and your health. Seller will not be liable for any damage or injury to You , your invitees, or any other person, or to any property, related to mold. 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. Seller 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. I ve read and erstand and aw a to the terms and conditions contained in this entire agreement hate W a 6 'd HE '°N ?uI 'sawOH p00A}p0 Ald?S:Z 60OZ 'SZ 'OS 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, Seller makes no representations or warranties as to the quantity and 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 Seller 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 Buyer is encouraged to investigate and become satisfied as to any concerns about water quality in your home. It is solely the responsibility of Buyer to do so, if desired, and Buyer agrees to hold Seller harmless from any claims by Buyer or claims by parties in possession by or through Buyer, from all damages, costs and attorney fees, which may be applied to Seller as a result of such claims. ARBITRATION CLAUSE This rights and responsibilities created under this Contact shall be governed by and construed in accordance with the laws of the Commonwealth of pennsylvania. Any disputes, claims or causes of action relating to or arising out of this Contract shall be resolved, at Sellers' sole discretion, by binding arbitration in Lancaster, PA. If Seller elects to proceed by arbitration, the aggrieved party shall make demand for arbitration by giving notice to the other party by first class mail and by certified mail, return receipt requested. Within thirty (30) days of the receipt of such notice, the parties shall endeavor to select an arbiter, but, if they cannot agree, then each shall select one within an additional been (15) days. The selected arbiters shall, within ten (10) days of their selection, choose a third arbiter, whereupon the arbitration shall proceed in accordance with the rules and regulations of the American Arbitration Association. At the conclusion of the arbitration, the arbitrators, by majority opinion, shall render a decision and issue an award in favor of the prevailing parry. Such award, when signed by all arbiters, may be recorded as a judgment in favor of the prevailing party and against the other in any court of competent jurisdiction in the Commonwealth of Pennsylvan* or elsewhere and when so recorded, may be executed upon as a judgment. The decision of the arbiters shall be binding on the parties and non-appealable. Time shall be of the essence and failure by either party to timely proceed with the selection of an arbiter as set forth above, shall be conclusively deemed a waiver of the right of selection and the matter shall proceed under the single arbiter selected in a timely fashion. This procedure for dispute resolution, if elected by Seller, shall govern all interactions between the Buyer and Seller and should Buyer proceed in any other fashion, then all costs of incurred by Seller in its defense, including actual attorney's fees, shall be paid by the Buyer. CONSTRUCTION CLAUSES: House to be built shall be 26x40 bilevel, 2 car integral garage, heat pump CAC, 100 sf +/- rear deck, pave drive, std doors, W/D in unfinished lower level, fine grading and seeding of only disturbed areas for placing house and utilities with existing soils regardless of quality, according to Oakwood Homes, Inc standard construction practices. EXTENSION OF SETTLEMENT DATE; Buyer and Seller agree that at Sellers sole option, the settlement date may be extended in 30 day increments for up to a total of 330 days upon verbal notice from Seller that this will be necessary to accommodate any challenges or delays in the construction process for any reason whatsoever. In the event Seller is not able to deliver possession and a certificate of occupancy on or before the end of the 330 days maximum extension, then this agreement shall become null and void and neither party shall have any liability to the other whatsoever. I We read and rffull understand and agree to the terms and conditions contained in this entire agreement Date____ f L 'd 886Z 'ON ?uI 'saWOH pooMr,eQ A''u5S:Z 60E 'SZ '?;S MORTGAGE CONTINGENCY: Contingent upon Buyer obtaining a clear mortgage commitment for the subsidized loan program being applied for prior to settlement_ Buyer agrees to pay $5,000 towards their closing costs for this purchase. The Seller agrees to pay anything reasonable and customary over that amount. This money will be contributed from the Buyer's liquid or borrowed funds and/or from their $8;000 first time home buyer tax credit either at the time of closing or as a reimbursement to the Seller when that money is received. DISCLOSURE OF OTHER AGREEMENTS: It is possible that other purchase agreements are in place or may be accepted in the future for this home. Seller May terminate this agreement if another buyer obtains their financing commitment fast and is that case all deposit money will be returned to Buyer and the Buyer and Seller shall have no further obligation to one another. TERMTN.ATION OF AGREEMENT: In the event Seller determines, in it's sole discretion, that Buyer's is likely not financable on acceptable terms and conditions, Seller can terminate this agreement and in that case all deposit money gets returned to Buyer and Seller and Buyer shall have no further obligation to one another. Any changes to the planned construction shall be agreed in writing and paid in advance by Buyer, If the transaction fails to close for any reason whatsoever, these advance payments shall be oon-refundable. The mortgage contingency shall have no effect on this clause and these advance payments for changes are absolutely aon-refundable under any circumstances. See attached warranty - Exhibit B. BY signing below, you acknowledge yon have read 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 WBEREOF, AND INTENDING TO BE LEGALLY BOUND MREBY, TT-W PARTIES HERETO HAVE AFFIXED TIMIR RESPECTIVE HANDS AND SEALS, THIS 25th DAY OF __September____, 2009 Witness X Buyer (SEAL) Current address: 1491 Olde Oak Court, Mechanicsburg PA ACCEPTANCE By signing below, the Seller accepts your offer and acknowled Seller. Oakwood Homes, Inc. (Equitable Owner) 480 Running Pump ltd Lancaster, PA 17601 f 'd 9£6Z '°N ') uI 'sawOH POO/920 AdSS:l 6001, 'S? 'daj oAxr?ooz? xolvlEs, INC. 4801Zucming Pump Road Lancaster, PA 17601 717-735-0030 FAX: 7I7-735-0029 EXHIBIT B - LIMITED 'WARRANTY RE:_ 382 Cameron Road, Etter$ PA 17319 (Tax TD #67-27-000-QG-0097-00-00000) Contractor waaramts and guarantees for a period of one (1) year that the work will be free from defects in materials and workmanship. This warranty does not cover ordiaaty wear and tear, neglect or general maintenance connected with home Purchasership. This warranty does not guarantee: (a) Appliances and mechanical items over and above the manufacturer's warranty, (b) The existence of a radon free structure, (c) The existence of a "dry" basement, (d) Damage caused by the acts of Purchaser or third persons, (e) Water quality or quantity of on site wells, (f) Final grade settlement including areas around foundation, septic tanks, driveways and any other areas. (g) Lawns including washout, rock protrusion, seed burnup, blowaway, or failure to thrive. If Oakwood Homes, Inc. has to maintain grades or vegetation to comply with Conservation District regulations, OwneI/LPer agrees to reimburse all costs plus 20%. (h) Normal and usual minor imperfections such as nail pops or hairline cracks in walls, ceilings, concrete floors, walks, caused by drying and shrinkage of plaster, concrete, lumber, paint, etc. Contractor's liability under this Limited Warranty and this Agreement shall be to the cost of repair or replacement. Contractor shall not be responsible for any further claims for damages of any kind, incidental, direct, indirect, or consequential. Anything that develops during the first 90 days is to be listed on the 90 day warranty work order and submitted to Oakwood Custom Homes, Inc. at 480 Running Pump Rd., Lancaster, PA 17601 one week prior to the date indicated on the warranty work preliminary schedule that was received at settlement. Any additional warranty work desired after the 90 day initial warranty period is to be listed on the year end warranty work order and submitted to Oakwood Custom Domes, Inc. at 480 Running Pump Rd., Lancaster, PA 17601 one week prior to the date listed on the warranty work preliminary schedule that was received at settlement. 1/We have read and fully understand and agree to the terms and conditions contained herein. ?'L rn d 3066 "N ?0I 'Sawo'H poaaIDa 'Nd5S:Z 60()Z 5Z 'dad If you have an emergency warranty item (something that is likely to cause more damage to your home like a water leak, etc) please report it by calling 717-735-0030 (on emergency items only) and a warranty servicer will call you back as soon as possible. It shall be Purchasers responsibility to promptly notify Contractor of any defect covered by this Limited Warranty. Such notice shall be in writing and sent by mail to Contractor at Contractor's place of business. Upon Purchaser's notification to Contractor, Contractor will, within a reasonable time, examine such defect and determine if such defect is covered by this Limited Warranty. Standards of the RWC 10 year warranty program, Rev. 11/06, shall be used to determine whether correction is warranted. Upon a determination that the defect is covered by this Limited Warranty, Contractor will make reasonable attempts to repair or replace the defect. Contractor reserves the right to charge the Purchaser a reasonable sum per service call for any request for repairs not covered by this Limited Warranty. ARBITRATION CLAUSE. This Warranty shall be governed by and construed in accordance with the law of the State of Pennsylvania. Any claims or action, by either party, to enforce or interpret this Warranty and all other disputes under the Warranty shall be resolved by binding arbitration in Lancaster, PA, Either party shall give notice by both regular and certified mail, sending the other a demand for arbitration under this clause. Both parties may agree on an arbiter or, if they 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 third 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 tinder the single arbiter chosen timely. There will be a M 00 cancellation/trip fee for any warranty service work requested by customer if the customer terminates the work while in process or the customer is unavailable or unwilling to provide access at the scheduled time to the warranty semcer. This fee must be paid to Oakwood at the above address before another date will be scheduled. EXCEPT FOR. THE WARRANTIES CONTAINED HEREIN, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. ANY SAMPLE HOUSE Ex4MMD 13Y PURCHASER WAS FOR ILLUSTRATIVE PURPOSES ONLY. IT SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE WORK SHALL CONFORM TO THE SAMPLE OR MODEL. THE WARRANTIES W1fCH ARE CONTAINED HEREIN ARE PERSONAL TO THE I/We have read and fully understand and agree to the terms and conditions contained herein. -?,L y) 9 'd HH A ?uj 'SaWoq pooA>I, o ;Nd54:Z 600Z Z '4'S PURCHASER AND ARE NOT TRANSFERABLE IN ANY MANNER. THIS WARRANTY IS IN EFFECT ONLY IF THE BUILDER IS IN RECEIPT OF THE ENTIRE PURCHASE PRICE (AND HAS BEEN SINCE CUSTOMER MOVE IN) INCLUDING ALL CHANGE ORDERS AND EXTRAS IN ACCORDANCE TO THE TERMS OF THE CONTRACT. THIS WARRANTY IS EFFECTIVE AS OF THE EARLIER OF SETTL CUPANCY PERMIT ISSUANCE (OR READYNESS k'O CCUPANC 0 UPANCY PERMIT IS NOT APPLICABLE) O PURCHASER M , WHICHEVER COMES MST AND SHALL RUN FOR ONE (1) YEAR. INC I/We have read and fully understand and agree to the terms and conditions contained herein. ,.. Lm 1 d S 6Z '?N Sul 'saw0h P00AYvo Nd5S:? 60 0 Z S? '??S Coco ?'?'?'? VS. 4---R- In the Court of Common Pleas of Cumberland County, Pennsylvania No. /a .^ :3 8 G Ciu '! Ul?z To 2 ? I.Z =14L Z.3 Prothonotary O co Attorney for Plaintiff No. Tenn, 19 VS. PRAECIPE Filed 19 Atty. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson RLED-OFTIG- o??s?.?? 4.1 Sheriff Jody S Smith Chief Deputy 2010 FEB _$ 12: 01 Edward L Schorpp ,? ?Ui Fitt c r c c aFF Solicitor Liumli "k',?'; 11?tit ra Oakwood Custom Homes, Inc. vs. Erin L. Mattos Case Number 2010-386 SHERIFF'S RETURN OF SERVICE 02/02/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: Erin L. Mattos, but was unable to locate him in his bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Erin L. Mattos. Jeremy Francis current resident of 1491 Olde Oak Court, Mechanicsburg, PA 17055 advised Deputies Erin L. Mattos moved out in October 2009 and that is thought to be living in Dillsburg, P . SHERIFF COST: $42.44 SO A?;WERS, ; - ?f February 02, 2010 /`.?O R ANDERSON, SHERIFF rc.. CcuntySuite Shenft. Teloo oft. Inc. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Edward L Schorpp Solicitor ')F THE PFOTHOf,+OTARY 2010 FEB -8 PM 12: Q I , 011 IN7Y Nif Oakwood Custom Homes, Inc. vs. Erin L. Mattos Case Number 2010-386 SHERIFF'S RETURN OF SERVICE 02/03/2010 04:10 PM - Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on February 3, 2010 at 1610 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Erin L. Mattos, by making known unto herself personally, at Hampden Area Development Company c/o Remco 195 Hempt Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.44 February 04, 2010 SO ANS RS, R Y R ANDERSON, SHERIFF Deput Sherif t??JllntyGUitG' uhein'f. 7E;?P. SOfi. II',;;. WOOLFORD LAW, P.C. By: Timothy J. Woolford, Esquire Attorney I.D. 78941 Shannon O. Young, Esquire Attorney I.D. 200381 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster. PA 17603 OAKWOOD HOMES, INC., Plaintiff V. ERIN L. MATTOS, Defendant. 2010 FEB 24 1"JI 10: 37 .1 !1 iT C V Attorneys for Defendant, Erin L. Mattos : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action-Law No. 10-386 TO: Oakwood Homes, Inc. NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Preliminary Objections of Erin L. Mattos within twenty (20) days from service hereto or a judgment may be entered against you. - 5 z-, 9 1/, Date: February 23, 2010 Shannon O. oung • WOOLFORD LAW, P.C. By: Timothy J. Woolford, Esquire Attorney I.D. 78941 Shannon O. Young, Esquire Attorney I.D. 200381 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster. PA 17603 OAKWOOD HOMES, INC., Plaintiff V. ERIN L. MATTOS, Defendant. Attorneys for Defendant, Erin L. Mattos IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action-Law No. 10-386 DEFENDANT ERIN L. MATTOS' PRELIMINARY OBJECTIONS TO OAKWOOD HOMES, INC.'S COMPLAINT Defendant, Erin L. Mattos ("Mattos"), by and through her undersigned counsel, Woolford Law, P.C., hereby files Preliminary Objections to Plaintiff, Oakwood Homes, Inc.'s ("Oakwood") Complaint: 1. Upon information and belief, Oakwood is a Pennsylvania corporation with offices at 480 Running Pump Road, Lancaster, PA 17601. 2. Ms. Mattos is an adult individual residing at 1491 Olde Oak Court, Mechanicsburg, Pennsylvania 17055. 3. On or about September 25, 2009, Oakwood, as builder/vendor and Mattos, as buyer, entered into an unconscionable and one-sided agreement (the "Agreement") for the purchase of a home located at 382 Cameron Road, Etters, Pennsylvania 17319. The Agreement, which is attached as Exhibit "1," was drafted by Oakwood. 4. Paragraph 22 of the Agreement entitled "Real Estate Dispute Resolution System" states as follows: V 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 Resolution System. (emphasis added). Exhibit 1, 122. 5. Per Paragraph 22 of the Agreement, Oakwood must pursue any claim or dispute against Mattos by submitting its claim or dispute to mediation in accordance with the Rules and Procedures of the Real Estate Dispute System. 6. In breach of Paragraph 22, Oakwood filed a Complaint against Mattos on January 15, 2010 in the Cumberland County Court of Common Pleas. 7. Oakwood has not pursued any claim or dispute against Mattos in mediation. FIRST PRELIMINARY OBJECTION: Existence of Agreement for Alternative Dispute Resolution Pa.R.C.P. 1028(a)(6) 8. Defendant Erin L. Matthos incorporates, as if fully set forth herein, the allegations set forth in the above paragraphs. 9. Pursuant to Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure, preliminary objections may be filed by any party to any pleading where an agreement for alternative dispute resolution exists. 10. A court may dismiss a complaint on preliminary objection where the matter is subject to alternative dispute resolution. Odyssey Cqpital, L.P. v. Sashi Reddi, No. 2893 2 V Commerce Program, Control Nos. 081054, 2002 Phila Ct. Com. Pl. LEXIS 10, * 11 (Pa. Com. Pls. Nov. 14, 2002)(dismissing complaint where contract required alternative dispute resolution). A copy of Odyssey Capital is attached as Exhibit "2." 11. As a matter of public policy, Pennsylvania courts favor alternative dispute resolution. Goral v. Foxridgie, Inc., 683 A.2d 931, 933 (Pa. Super. 1996). 12. Where parties agree to alternative dispute resolution in a clear and unmistakable manner, as they have here, the court will make every reasonable effort to favor such agreements. Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). 13. Whether a particular dispute falls within a contractual dispute resolution provision is a matter of law for the courts to decide. Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635, 637 (Pa. Super. 1998). 14. Pennsylvania law advocates strict construction of dispute resolution agreements and dictates that any doubts or ambiguities are to be resolved in favor of the agreements. Delta/B J D S v St. Paul Fire and Marine Ins., et al., No. 1521, 2005 WL 1384578, *1 (Pa. Com. Pl. June 10, 2005). 15. Oakwood and Mattos entered into an Agreement, which clearly and unmistakably requires mediation of this dispute pursuant to the Real Estate Dispute Resolution System. 16. Despite the mandatory language of Paragraph 22 requiring Oakwood to submit its claim or dispute against Mattos to mediation, Oakwood filed a Complaint. Given the existence of an agreement for alternative dispute resolution between Oakwood and Mattos, the Court should dismiss the Complaint. WHEREFORE, Defendant Erin L. Mattos respectfully requests that the Court grant her preliminary objection pursuant to Pa.R.C.P. 1028(a)(6) and dismiss the claims in the Complaint against her with prejudice, and award her costs, fees, and all other relief the Court deems just and appropriate. SECOND PRELIMINARY OBJECTION: Failure of a Pleading to Conform to Law or Rule of Court Pa.R.C.P.1028(a)(2) 17. Defendant Erin L. Mattos incorporates, as if fully set forth herein, the allegations set forth in the above paragraphs. 18. Rule 1024 of the Pennsylvania Rules of Civil Procedure sets forth in pertinent part: (a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified... (c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party. Pa.R.C.P. 1024 (emphasis added). 19. Although in certain circumstances an attorney has the power to verify a pleading, the Superior Court has emphasized that "counsel may verify only in those cases in which the conditions delineated in Rule 1024(c) are present. Monroe Contract Co. v. Harrison Square, Inc. 405 A.2d 954, 958 (Pa. Super. 1979)(Superior Court held that a petition verified by an attorney should not have been dismissed where the verification satisfied certain conditions delineated in 4 Rule 1024, i.e., it recited that the appellant lacked sufficient knowledge to make the verification and alleged that the facts set forth in the Petition were within the knowledge of counsel). 20. Where an attorney verifies a complaint without explaining why the party did not verify or without setting forth the attorney's source of knowledge, the complaint should be dismissed on preliminary objections. Mader v. Integrity Real Estate, 18 Pa. D. & CAth 640 (Snyder County Ct. Com. Pls. 1992)(court struck first amended complaint and entered judgment in favor of defendant where the attorney verified the complaint, but failed to explain his source of knowledge or why neither party verified the complaint). A copy of Mader is attached as Exhibit "3." 21. The verification attached to Oakwood's Complaint was verified by Oakwood's in- house counsel, Michael B. Volk. A copy of the Verification is attached as Exhibit "4." However, the Verification was devoid of any of the conditions set forth in Pa.R.C.P. 1024(c) that might have allowed Attorney Volk to sign the document. Specifically, the Verification did not state that Oakwood lacked sufficient knowledge or information to verify the document.' Without this, it was a violation of Rule 1024(c) for Attorney Volk to sign the Verification. 22. Moreover, even if Attorney Volk could have signed the Verification, under Rule 1024(c), he still would have had to state the source of his information and the reason why the Verification was not made by Oakwood. 23. Rather, Attorney Volk stated in his Verification that he was making the Verification because the Plaintiff was "unavailable" and "time [was] of the essence." Such a statement is nebulous and wholly inadequate to satisfy the limited and qualified circumstances 1 An attorney may also sign a verification if the party is outside the jurisdiction of the court and the verification of none of the parties can be obtained within the time allowed for filing the pleading. Oakwood cannot assert this exception to a non-party signing a verification because Oakwood availed itself of the Court's jurisdiction by filing the Complaint in Cumberland County. 5 under which a non-party may sign a verification. Allowing such a response would render Rule 1024(c) meaningless as every attorney under a time deadline could avoid obtaining his client's verification by merely asserting that time was of the essence, as clients are necessarily unavailable at a moment's notice. Moreover, as Oakwood's in-house counsel, Attorney Volk should have had ample access to Oakwood. 24. Thus the verification attached to Oakwood's Complaint fails to conform to Pa.R.C.P. 1024(c) and the Complaint should be dismissed for failure to conform to law or rule of court. WHEREFORE, Defendant Erin L. Mattos respectfully requests that the Court grant her preliminary objection pursuant to Pa.R.C.P. 1028(a)(2) and dismiss the claims in the Complaint against her with prejudice, and award her costs, fees, and all other relief the Court deems just and appropriate. Respectfully Submitted, WOOLFORD LAW, P.C. Dated: February 23, 2010 By: Timothy J. Woolford Attorney I.D. No. 78941 Shannon O. Young Attorney I.D. No. 200381 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (717) 290-1190 Attorneys for Defendant, Erin L. Mattos 6 D 0 AGREEMENT FOR THE SALE AND PURCHASE OF REAL ESTATE This form recommended and approved for, but But restricted to, use by members of the Oreata Harrisburg Association of REALTORSO AGE?N'T FOR SELLER SUB AGENT FOR SELLER AGENT FOR BUYER +?®t4l E.- WONF- ?j,? i,:_ PA. LICENSED BROKER PA. LICENSED BROKER PA. LICENSED BROKER `5 t:, - This Agreement made this day of ._<_ . I. PRINCIPALS Betwew_ 2J, (residing at hereinafter called Seller, and = •-. (residing at haelaatter called Buyer. 2. PROPERTY: Sella hereby agrees to sell and convey to Buyer, who hereby agrees to purchase: ALL THAT CERTAIN Lot or piece of ground with buildings and improvements thereon accted, if any, known as: 3. ZONING: Zoning Classification % Failure of this Agreement to contain the zoning classification except in cases where the property (or each parcel thereof, if 3ubdividable) is zoned solely or primarily to permit single-family dwellings shall render this Agreement voidable at the option of the Buyer and if voided deposits tendered by the Buyer shall be returned to the Buyer without a requirement of court action. 4. TERMS: (a) Purchase Price to be paid by the Buyer as follows: (b) DEPOSIT Cieek 9 Cub C3. Most O u the signing of this ' agr oust. reccipf of which Is hereby acknowledged ... :. i .••.? If Now, co be redeemed an or before the day of (e) ADDITIONAL DEPOSIT due on or before the day of _ .................. S (d) BALANCE OF PURCHASE PRICE at andomat (ash, certified ehe* and/or mortgage funds) ................................................... TOTAL ............. S '(s) Written approval of Setla to be a or before the day of W dwwiogm ae. ap?poetIcm d before the - `I day of : i The f asmdada R°? as of and at time of sttlamem: Tessa as kried and assaud, rann, fotmen mortprge uwmptione, ooadominium (as and bomsm neta lo face if say. weer and/or sewer rents if soy, together with my other gamble muWdpal serrtoa. All Ready Tray/er rasa shag be dbided scaly colas ahawim provided ba®. F.J,\ 1 PROPEM SEfTLEMKIVT COMM4GENCY: This agreement Is subject to the settlement of Buyer's property located at on or before FINANCING CONI KGZNCY: Tbit sam ment Is subject to the financing a follows: (al g TYPE MINIMUM TERM PRINCIPAL UM INITIAL INTEREST RATS % MAXIMUM TOTAL POINTS, INCLUDING LOAN ORIGINATION FEE, TO BE PAID BY THE BUYER- TERMINAL DATE for Obtaining Financing Commitment bjBrokees howevf may atlvia Bnya of padMe sources of mortgage Pads, but aotte assume reaponribauy fa obtaining Buyer's monp{e. If said ban 'snot be ob-ind at bads providd, thin Atpemest shag 6a NULL AND VOm and all depoaM moss Mina be returned to the Buyer on a before date of settkmem a pcovidd herdn, mer to the plovidens h Paragrepis ri(b) sad 6(e). (b) Buyer shag make a completed applientiuu to a tapondbk lending iashutica (car the said bats within oiendv days from the Seller's Shouts Is Buyer (era m make soe6 tampktd appiiation wWYa the spad(ied rims. it shall be u the otMbn of the Sdkr. with- Ive (S) askodar er to: G) Decks eWa A?emeet MILL AND VOlD, at whki the, all mode paid m annual wNLL be for end to Seller a aquldatsd damoga, su6jrzt to the Rub and and we provided for is this araaaph, (h7 In absents of wd tao so" to the --Bum by do Seller ({ether with other flood" msdspda that mey bedthis Agmewass NULL AND sor endorsed herao, shag no b?• the condition ass prersll and this Agreement ement ahaa remab effective a according to its terms In cams answer as if the conditions and contingency wore not ¦ pmt hereof. (e) Seger car Aamt mart reed" a written commitment road anti the data of sesh:amt. for the said boo. on or before the terminal date as specified. If the said commitment 4 net finetehed with the Most m spedMd bade, a an albs lesson aasptd In writlat by the Buyer. on or before the spadfkd date. Sd shalt bars the optbq at that dace. or my other tine daraRm. duds{ tie Was of this Agreement, unto, but ant beyond the due of receipt of the commitment by the Sella. or Apart to drive this Agreement NULL AND VOID, by written notice to the Buyer of his/her decision to eased, at which time all depmit moms pad on mount shall be remsed to the Buyer. mbjas to do payment required, if any. Provided fa is Paragraph 12(br M. 00. ad 01111. (d) Sella hereby apse to permit isspesbm byawbocimd appralsas, reputable artlfiers and/or Buyer as any be required the leading institution or ignoring agenda. (e) Seller hereby agree topay additional mortgage dlseoum paints and/or ban origination fa in ease of a buyer obtaining (inswing from a leading inuitudos requiring dry am ar AU of efanaid for. providing the total of said fees dos sat sad % of the 'some of the mortgage. STATUS OF WATM AND SEWER: Sella warrants the Win property is aerL by water and sewer. Fortier, 9eaer wsenntt lien ehme'rystems am roly for and, as of the data of this {greenest are Is sadafw:tory, operating condition. If either aforeaid sysuem is priers-, Sena wore- that IV/sbe hen m seeks !tom the musidpaitp .from municipal 'mho ides dw Public water sod/or swa will be aaeaed orisaalled. MUNWIPAL BNPROMAR T& Seger has no soriom of municipal Improvements (such a sidewsan, crrrbr, ere.) except Axmf to a public road may require Issuance of a Highway occupancy permit from the Deperneem of Trmtportvioo. f. SPFAAL CLAUSF3: lg. ATTAC7® ADDENDA are made a pan of this Agreement: O Wood Infestation ? Radon Disclosure O Private Water/ODBhe Sewage OFHA/VA ? Dual Agency Coca= O Hama Inspection GOthesb): II. PERSONALTYi AN esistbg plumbing, beadwg, air-cwafidoning and B g fixtures (including chandeliers and asks{ fans) and appuetenae thereto and farming a Pan thersor. and 'her pamasem Rana, ss weB,aaa9 res{es, laodry tuba, T.V. amenme, mass and rotor systems, together wtth wall to wall carpaiag. screens. store sash and/or doors, shade, wtJa?,".ve alm bads. eoupangs for ¦emds is-ashere and dryers, cap. radiator covers, tawnI water sonatas, latch um abiness, drapery sods. drapery red hvdwa-,aassts rods, ar-v sod ksudware, al tree. shudbery, phiiamP sow Is oc co property: garage dou openers, sheds: if my, udm sped(IaaY escooinedta is this Agreement. on Included In the ale and purchase price. None of tint lava madoned items shall be rmbved or annotated by the Sd r from prasha after Aems at Any r®ddna bating mrd/er cooking fuels stored on the premises at dam of settlement ere caw included under tWs AOca6m . Segerbotby wsmoa that laws" wr?l deliver sod due to alt of the aakb dcscOW in this paragraph, and my aha fimva or items of personalty specifically scheduled to he inducted in this Ink. Sean warrants as Possums, kasaL an ouu lkioniug. usechteied and ekasial systems to be In prow wo wceld This warranty dos nor surive clod systems and equipment and appliances roper oi order at time of settlement. EL TITLE AND COSTS: (a) The premiss arc b be conveyed ins fa tmpk by spedd srarranry dad, Me and denr of all Ems, meamtraoan and aasomom EXCEPTING HOWEVIM the fafow?w EddeF buildlati reariaiae, ardioarheas, eueatents of reds, privBeEa or riWts of ptbRe service tssmpassiss, if my, or unwAn s or restricrbm visible upon the t¢vusod, otherwrse the title b the above dntribd red acre stall be gesod ad merkaahle « such a std he invested by a repeahk Wle iamasmce ompauy at (b) win the rgrla race. The Buys pay for the following: (D The prentma f« tick loemstatnca mathadce Iim losuramce ad/« mhe scotch « fa f« cawBatioa of time. U my. (u) The prmmtkm f« tload lonwatsa and/or fire iaastaace wirh estendd aovera{e. inststaaot birder tkarses or canmdatbm fa, If any. Ga Apgraial fns ad chase paid la advamcs to U my. Bv) Btya's aormnal satsleanmt arts and aesvals emka swd hods. (e) Any survey « surveys vehicle may b< rpuirad by the TRk Innranca ComPsnY « the abstracting attorney for or r eM pr?arriee aduciarm laid description of the he he premises (or the eorreaioa thermG. shag be aeurd and paid f« by the Server. Nooerer. my arvq «atrveya demand by the Buys or required by his mwWM shag cgrad and paid fit by tlr Buys. (d) In t? event the Senn it omabk to give a pmod and marketable tithe or each as win be insured by a repntabk ddr company. subject as afaraaN. Buyer shad bane the option of taking suck title in the Seller can give without abatement of price or of betas repaid all moaia paid by the Buyer to the Eder on mane, of the purchae prier and the Seder win ralmhune the Buyer for apt coma laeurrd by the Buyer for thou home specified in Paragraph 12(b) ksma ft (IL OR and in Paragraph Dick and in the letter event there shad be an further liability or objection on either of the parties berm atl this Agreement shall become NULL AND VOID. M. PAYMENT OF DEPOSIT: Deposits, regardless of the (arm of pay== ad the person dedgomd in peya, And be paid to Agent for the Sella, who shad win thma In an escrow =own noun coommmrim or lermietion of this Agreement In conformity with all appdnble hna and regulations. As. I. that SM. may. at his or bar sok option. hold my aaearhod chat tstdered as deposit. pending the acceptance or this offer. If there is a dispute between the Buyer and the Soda over who is entitled to the depom. Agee will cot be responsible to rmain the dispute and will cot be gable to either Buyer or the Seller f« ref , to rdense the ,p without m adequate wrirten a?ao nt haw= Buys and Sella or a valid rums order. Buyer and Seder agree that, in the event the Agmt and/or Suegnot we. johw I. Belson`" f« the rctwn or deposit moots. the Agent's mci/« Subagent's reasonable sammey's few and ants will be paid by the perry joining the Ages or Subagent. 14. POSSESSION AND TENDE : (a) Possession is to be ded.ered by dad, keys and physical poomion to a vacant building (if any) at day and than of aatlaant, or by dad and Botswana of txistlng lease(s) at the than of sentiment if premius is union oaupiad u the Agaieg of this Agreement. asks otherwise specified haxin. Buyer wig eckmowkdBe a fisting haws) by hdda6ng said lease(s) at time of signing of this Agreement of sak if team occupied. (b) Sager will nos mass into my one, km*s). written extmsim of eaieiug taunts), if my, or additional lease(s) for the premiss without express written cmum of the Buyer. (c) Formal lender of an executed dad and purchase money is hereby wdved. (d) Buyer rservs the right to make a pmesathrocat inspection of the subject premiss, and will execute appropriate documentation of such Inspection. IS. RISK OF LOSS: (a) Seder shad maintain the property (including ad items mmtimed in paragraph Oil herein) and my personal property specifi aly scheduled herein in its proem condition. normal wear and wet except ed. (b) Seder shag bear risk of log from lire in other consider mtn time of settlement. In the event of damage to the It apaty by ran or other easuahy, Buyer shall have the option of recovery obtainablegby this agreement Rod cociv Sell hereby no tifhand momy paid cm account in of ied that may insure his equitabkptnterst g iElie s t property in its a then time can&" with the proceeds any huntrame property an of the e time of the atsaptaan of this agreement. . Id. REPRESENTATIONS: It is understood that Buyer be inspected the popery. or hereby waives the right to do an and WWe ban agreed to purchase it in a rank of such inspection and nee bevuse or or in reliance upon my representation made by the Seller or m other offloor, puma or employee of Seder. or by the agent of the Seller or my of the letter's salespersons and aapbyea or by a cooperating Broker, it mar, err rr of his/her salspenmas and empkwm and that ba/sbe has agreed to purchase it in its income condition unless otherwise specified hereto and runher acknowledges that eMe aforementioned parties an not qualified to render an opinion on mnsnsaioe. aesinmins. in enviromm and matters and that the buyer has been advised that he/she may require in wish to sat the assistance of experts in those f dds. It is further understood thin this Agreement contdns the whole agreement between the Sder and Buys and them are an other terms, obligations, covenants, represestadom statements or conditions. oral or otherwise of any kid whatsoever concerning this ask. Furthermore, this Agreement shad not be sherd, amended, changed or modified except in writing counted by the parties hereto. 17. RECORDING: This agreement shad nos be recorded is the Office for the Recording of Deeds or in my other office or scare of public record, ad irauyer shall record this agreement or cause or permit the same to be recorded, Sella may, at his/her option, elect to rut ado act a a breach of thin agreement. Is. ASSIGNMENT: This Agreement tall be binding upon the cap= in heirs, exawtors, dmiaistntors, successors and, to the extent assignable, an the assigns of the parties hereto. it being expraiy, understood, however. that the Buyer shall not transfer in assign this Agreement without time written comsat of the Sella bid" first obtained. It. NON-UABILITY OF AGENT: Except u may be provided by a separse agreement «addeadum io this Agreement, Agent(s) «Sub-Ageat(s), if m , we ma L. Buyer. Y nOrseuins Seder. It is expressly understood and agreed between the parties hereto that the herein named agent, his/her salespersons and employees or any office or my cooperating broker and his/her salesperson out maployea and my officer or partner of the emPanting broker are actin as a partner or agent and g get only in bringing or Buyermaor thea ad will is an one whatsoever be held liable journey or severally to either parry for the pss(armanee of my item in consent of f this Agreement or f« damages f« the nimp onperformance sheen(. 20. DEFAULT - TIME 15 OF THE ESSENCE The said time for settkme s Red all other items referred to for the perfewmasex of my of the obligations of this Agreement are hereby agreed to be of the mace of this Agreement. Should the Buyer. (a) Fail to make my additional payments a specified in Paragraph 4, (b) Furnish false or incomplete information to the Seller, the Saw's agent, in the mortgage leader, concerning the Buyer's legal or financial status, or rail to wopssate in the processing of the montage ban application, which acts would reap in the failure to obtain the approval of a mortgage ban comeaknwn4 or (c) Violet, or (dl to fulfill' and perform any of the term or conditions of this Agreement, then I. such cast, all deposit monies and other shins paid by the Buyer on account of the purchase price. whether required by ibis A « not, may be retained: (t) by the Seiler on account or the purchase , shonld the seller demand the full purchase price, in (it) as monies to be applied to the Seller's damages, or (iii) sa liquidated damage few such breach, as the Seiler may eke. and he the ever that the Seller elects to retain the monies as liquidated damages in accordance with Paragraph 20(c)(M), the Seller shag be released from all liability or obligation in this Agreement shall be NULL AND VOID. 21. RECOVERY FUND: A real estate recovery fund exists to reimburse my persons who has obtained a final civil judgment against a Pemsylvada red recce gooses owing to fraud, misrepresentation, or deceit in a real emote transaction and who has been unable to wiled the jdsaoent after sluasing all legal and equitable remedies. For ca- plets details about the fwd, call (717) 7234954. 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 Rut Estate Dispute Resolution System. Disputes shall include representations made by the buyer, seller, or any broker, agent, subagent, or other person or entity in conaexsion with the sak, purchase, financing, conditions, or other upon of the property to which this Agreement pertains including. without limitation, allegations of contestation. misepmntation, oegiigence and/or fraud. The provisions of this paragraph relating to mmed'udon shall survive settlement on the subject properly or arBer termination of this Agreement. Buyer and seller acknowledge thin they have received, red, and understand the standard announcement brochure and rules and procedure for the Real Estate Dispute Resole. lion System. 23. DESCRIPTIVE HEADING: The descriptive headings used herein arc for convenience only ad they are not intended to induce all of the meter in she sections which (dhow them. Accordingly, they shall have an efracr whatsoever in deteeminiog the rights or obligations of the parties. 2e. 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, consult your attorney. Fan Stokur L• This Document may be executed by the Buyer or Seller and transmitted to the aver for execution by Wefts. When executed and delivered I. such manner, this Document wig be binding as though executed by the partws m the original document. APPROVA BUYER: en witness whereof, the parties herein, intending to be kgapy d hereby, har heeundar set hands and scab the day Bad year first above written. "? AUYER ? .4A (SEAL) MIT YER BUYER (SEAL) WITNESS AS TO 0U7FJt APPROVAL BY SELLER: Selkrt,) hereby approves contract this day of WITNESS AS TO SELLER SELLER (SEAL) AGENT BY: SELLER _ MIFAl i NSA 110 3/916 Page 1 W LexisNexW 5 of 99 DOCUMENTS ODYSSEY CAPITAL., L.P. and JEFFREY SHAPIRO, Plaintiffs, v. SASHI REDDI and APPLABS, INC. d/b/a APPLABS TECHNOLOGIES, Defendants. No. 2893, Commerce Program, Control Nos. 081054 COMMON PLEAS COURT OF PHILADELPHIA COUNTY, PENNSYLVANIA, CIVIL TRIAL DIVISION 2002 Phila. CL Con. PL LEXIS 10 November 14, 2002, Decided JUDGES: [*1] GENE D. COHEN, J. OPINION BY: GENE D. COHEN OPINION ORDER AND MEMORANDUM GENE D. COHEN, J. Plaintiffs claim that in order to induce them to con- sent to the Merger, Reddi orally promised them the right to sell their shares of ASPL (to be acquired through the Merger) back to Reddi at a price of $ 1.00 per share at anytime between the 13th month (July 2001) and 24th month (June 2002) following the Merger. Id. As a result of Reddi's alleged representations, Plaintiffs agreed to the Merger and the conversion of their shares of Icoop. Id. at P 12. Before the Court are the Preliminary Objections of Defendants Sashi Reddi and AppLabs, Inc. d/b/a Ap- pLabs Technologies ("App Labs") to the Complaint of Plaintiffs Odyssey Capital, L.P. and Jeffery Shapiro. For the reasons fully set forth below, Defendants' first Pre- liminary Objection pursuant to Rule 1028 (a)(6) hereby is SUSTAINED and Plaintiffs' Complaint DISMISSED. Defendants' second Preliminary Objection pursuant to 1028(a)(2) hereby is DISMISSED as MOOT. BACKGROUND The instant action arises out of Defendants' alleged breach of certain oral and written agreements between the parties. Compl. P 6. As set forth in Plaintiffs' Com- plaint, on April 25, 2000, Plaintiffs invested $ 250,000 (collectively) in Icoop, Inc., a company owned by De- fendant Reddi, and, in return, received 500,000 shares (collectively) of Icoop. Id. at PP 7, 8. Following the stock purchase, Reddi expressed a desire to merge Icoop with another [*2] company he owned, AppLabs, Inc. (the "Merger"). Id. at P 9. As a condition of the Merger, Plaintiffs were required to exchange their Icoop shares for shares in AppLabs Software Private Limited ("ASPL"), the parent company of AppLabs. Id. at P 10. On June 30, 2000, the parties' agreement was me- morialized in two separate "Put Agreements" with Odyssey and Shapiro, respectively. Compl. Exh. "A" and "B." ` In addition to the foregoing terms, the Put Agree- ments also stated that "pursuant to the Merger Agree- ment 2 , [Plaintiffs] were receiving options to purchase stock of [ASPL]... such shares, when issued upon exer- cise of the option are called the 'Issued Stock'." Id. at P 2 (emphasis added). The [*3] Put Agreements only en- titled Plaintiffs to exercise the Put with respect to "Issued Stock." Id. On the same day the Put Agreements were executed, Plaintiffs and Reddi, inter alia, executed the Shareholder Agreement. Def. Mem. Exh. "A." The Shareholder Agreement purports to govern the relation- ship by and between the shareholders of ASPL, but, per- haps most importantly, it defines the nature of Plaintiffs' stock ownership in ASPL. 1 Plaintiffs further claim that Reddi orally promised to personally guarantee payment. 2 By its own terms, the Put Agreements "were entered into in connection with [a] certain Agreement and Plan of Merger between [Icoop] and [AppLabs]" (the "Merger Agreement"). The 2002 Phila. Ct. Com. Pl. LEXIS 10, * Merger Agreement is not discussed by counsel, nor is it attached to any of the pleadings. On November 8, 2001, Odyssey and Shapiro served Reddi with formal notices purporting to exercise their respective rights under the Put Agreements. Compl. Exh. "C" and "D". On November 30, 2002, counsel for [*4] Reddi responded, stating that such rights could no longer be exercised, as the ASPL stock had since been con- verted to cash. Id. at Exh. "E". As a result of this dispute, litigation ensued. Plaintiffs' Complaint in this matter asserts the fol- lowing causes of action against Defendants: Count I -Breach of Contract (Put Agreements); Count II - Breach of Contract (Personal Guarantee - Oral); Count III - Promissory Estoppel; Count IV - Unjust Enrichment; and Count V - Fraudulent Inducement and Misrepresentation. Id. DISCUSSION Defendants originally filed Preliminary Objections on two grounds, but have since withdrawn their second Preliminary Objection.' Thus, solely before the court is a Preliminary Objection based upon Rule 1028 (a)(6) - Existence of Agreement for Alternative Dispute Res- olution. Defendants argue that Plaintiffs' Complaint must be dismissed because this matter is subject to arbitration. In support of their argument, Defendants rely upon 42 Pa. C.S.A. § 7303 which states: A written agreement to subject any ex- isting controversy to arbitration or a pro- vision in [*5] a written agreement to submit to arbitration any controversy the- reafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract. 42 Pa.C.S.A. § 7303. Defendants assert that the current dispute is subject to the Article XIV of the Shareholder Agreement between the parties which states: All disputes, differences, claims, ques- tions and controversy arising in connec- tion with andlor in relation to this [Shareholder] Agreement which the par- ties are unable to settle between them- selves shall be finally settled by arbitra- tion by three arbitrators... The arbitration shall be held in accordance with the Rules of the International Chamber of Com- merce. The arbitration proceeding shall be held in the English language and shall be Page 2 held at the registered office of ASPL [in Hyderabad, India]... Def. Mem. Ex. "A")(emphasis added). Defendants take the position that "it is impossible to determine whatever dispute may exist under the Put Agreements without re- solving the issue under the Shareholder [*6] Agree- ment." Defendants are correct. 3 Initially, Defendants also argued that Plain- tiffs violated Pa.RC.P. 231(a) which states, in pertinent part: "... after a discontinuance or vo- luntary nonsuit, the plaintiff may commence a second action upon the same cause of action upon payment of costs of the former action." Pa.RC.P. 231(a). Plaintiffs had filed a prior action styled, Odyssey Capital, L.P. et. aL, v Sashi Reddi, et. al., (CCP Phila. No. 0102-000307), which was discontinued (without prejudice) on June 7, 2002. Defendants have since withdrawn this Prelimi- nary Objection, admitting that Plaintiffs sent de- fense counsel a check for costs of the first action on July 17, 2002. Def. Mem., n.1. When one party to an agreement seeks to prevent another from proceeding to arbitration, judicial inquiry is limited to determining: (1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute [*7] involved is within the scope of the ar- bitration provision. Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 284, 687 A.2d 1167, 1171 (1997); Messa v. State Farm Insurance Company, 433 Pa. Super. 594, 597, 641 A. 2d 1167, 1168 (1994); PBS Coal, Inc. v. Hardhat Mining, Inc., 429 Pa. Super. 372, 376-77, 632 A.2d 903, 905 (1993). In the instant matter, it is undis- puted that the parties possess a valid agreement to arbi- trate, which is contained in the Shareholder Agreement. Thus, the pertinent inquiry is whether the instant dispute falls within the scope of Article XIV of the Shareholder Agreement. A review of the Complaint, coupled with the language of both the Shareholder and Put Agreements, reveals that the instant dispute "arises in connection with and/or in relation to" the Shareholder Agreement and is, therefore, subject to arbitration. It is well-settled that the issue of whether a particu- lar dispute falls within a contractual arbitration provision is a matter of law for the court to decide. Shadduck v. Christopher J. Kaclik, Inc., _ Pa. Super. 713 A. 2d 635, 637 (1998) [*8] . Pennsylvania law advocates strict construction of arbitration agreements and dictates that any doubts or ambiguity as to arbitrability be re- solved in favor of arbitration. Smith v. Cumberland Group, Ltd., 455 Pa. Super. 276, 687 A.2d 1167, 1171 (1997). The fundamental rule in construing a contract is 2002 Phila. Ct. Com. Pl. LEXIS 10, * to ascertain and give effect to the intention of the parties. Lower Frederick Township v. Clemmer, 518 Pa. 313, 543 A. 2d 502, 510 (1988) (plurality opinion). In order to determine the meaning of the agreement, the court must examine the entire contract, taking into consideration " . . . the surrounding circumstances, the situation of the par- ties when the contract was made, the objects they appar- ently had in view and the nature of the subject matter." Huegel v. Mifflin Const. Co., Inc., 2002 PA Super 94, 796 A. 2d 350 (2002) (quoting In re Mather's Estate, 410 Pa. 361, 189 A.2d 586, 589 (1963)). The Complaint, at first glance, appears to be specific and limited in scope; all pleaded facts relate solely to the Put Agreements and the events surrounding same. How- ever, despite the narrow language of the Complaint, [*9] a careful review of the agreements at issue une- quivocally reveals that the scope of the instant dispute relates to the nature of the ASPL stock issued to Plain- tiffs, rather than their rights under the Put Agreements. In their Complaint, Plaintiffs assert that they "agreed to the merger and the conversion of their shares of Icoop into an equal number of shares of [ASPL]." Compl. P12 (emphasis added). Conversely, Defendants appear to take the position that Plaintiffs never owned any "Issued Stock," and therefore, could not have exercised their rights under the Put Agreement. It was the attempt to exercise their rights under the Put Agreement, rather than the actual terms of the Put Agreement itself, which re- vealed the true nature of the dispute between the parties. To that end, it is the Shareholder Agreement that offers guidance concerning Plaintiffs' stock ownership interest in ASPL, rather than the Put Agreements alone. The fact that the Put Agreements do not integrate, incorporate or otherwise reference the Shareholder Agreement is not determinative here, nor is the fact that the Put Agreements contain the following integration clause: "this Agreement is the entire [*10] agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and under- standings, whether written or oral with respect thereto." Compl. Ex. "A" and "B" at PP 6. Normally, "if a written contract is unambiguous and held to express the embo- diment of all negotiations and agreements prior to its execution, neither oral testimony nor prior written agreements or other writings are admissible to explain or Page 3 vary the terms of that contract." Lenzi v. Hahnemann University, 445 Pa. Super. 187, 664 A.2d 1375, 1379 (1995). However, Pennsylvania law recognizes that two contracts may be construed together to represent a com- plete transaction even where the subsequent contract contains an integration clause. Neville v. Scott, 182 Pa. Super. 448, 127 A. 2d 755 (1956). Upon further review of the both the Put Agreements and the Shareholder Agreement, it is clear that the intent of the parties can not be determined without analyzing and interpreting both documents together. CONCLUSION For the above-stated reasons, this Court hereby sus- tains Defendants' Preliminary Objections. Plaintiffs' Complaint will be [*11] dismissed and the matter sub- ject to arbitration as originally agreed by the parties. This Court will enter a contemporaneous Order consistent with this Opinion. BY THE COURT: GENE D. COHEN, J. Dated: November 14, 2002 ORDER AND MEMORANDUM AND NOW, this 14th day of November 2002, upon consideration of the Preliminary Objections of Defen- dants Sashi Reddi and Applabs, Inc. d/b/a Applabs to the Complaint of Plaintiffs Odyssey Capital, L.P. and Jeffery Shapiro, any responses thereto, and in accordance with the Memorandum Opinion being filed contempora- neously with this Order, it is hereby ORDERED and DECREED as follows: 1. Defendants' first Preliminary Objection pursuant to Rule 1028 (a) (6) is SUSTAINED and Plaintiffs Complaint hereby is DISMISSED; 2. Defendants' second Preliminary Objection pur- suant to 1028(a)(2) hereby is DISMISSED as MOOT. BY THE COURT: GENE D. COHEN, J. U 0 Page 1 LexisNexW 1 of 100 DOCUMENTS Mader v. Integrity Real Estate no. 67-1992 COMMON PLEAS COURT OF SNYDER COUNTY, PENNSYLVANIA 1992 Pa. Dist & Cnty. Dec. LBXIS 41; 18 Pa D. & Goth 640 October 29, 1992, Decided COUNSEL: [*I] Henry W. Mitchell, for plaintiffs. Robert H. Slivinski, for Snyder County Sewage Code Enforcement Committee. Robert M. Cravitz, for Integrity Real Estate. Robert H. Steinberg, for Center Township. JUDGES: WOELFEL, J. OPINION BY: WOELFEL, J. OPINION [**640] Motion to strike complaint. WOELFEL, J., October 29, 1992 -- The defendant's motion to strike alleges that the plaintiffs failed to file their pleading on or before July 29, 1992, and that the plaintiffs first amended complaint was verified by the plaintiffs' attorney, "without explanation as to why nei- ther party verified said pleading, nor without source of [the attorney's] knowledge." Those averments were ad- mitted in the plaintiffs' answer to motion to strike, al- though the court will note that the answer to motion to strike pleading was again "verified" by plaintiffs' coun- sel, and that verification also was made without explana- tion as to why neither party verified the said pleading, and did not specify Mr. Mitchell's source of knowledge. Thus, there is some question as to whether the said mo- tion to strike pleading was even answered, in accordance with this court's order of September 16, 1992. [**641] [*2] Pa.RC.P. 1024(c) provides as follows: "(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are out- side the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or in- formation and belief and shall set forth the source of his information as to matters not stated upon his own know- ledge and the reason why the verification is not made by a party-tv This matter is resolved by Monroe Contract Corp. v. Harris Square Inc., 266 Pa. Super. 549, 405 A.2d 954 (1979). In that case the Superior Court held that: "In suitable circumstances, therefore, 'any person having sufficient knowledge or information and belief may verify a petition. It seems clear to this court that an attorney qualifies as 'any person.' Pa.R.C.P. no. 1002 does not demand a contrary result. That rule states: 'any act other than verification required ... to be done by a party may be done by his attorney.' (emphasis added) This only forbids [*3] an attorney from doing what a party must do; it does not prohibit him from doing what any person may do under the Rules. See 1 Goo- drich-Amram 2d § 1002:1 (1976). Because any person may verify a pleading, and by extension a petition, an attorney has the power to do so in suitable circums- tances. We must emphasize, however, that counsel may verify only in those cases which the conditions deli- neated in Rule 1024 are present." (emphasis in the origi- nal) [**642] The verification attached to plaintiffs' first amended complaint is devoid of any of those condi- tions set forth in Pa.RC.P. 1024(c). 1992 Pa. Dist. & Cnty. Dec. LEXIS 41, *; 18 Pa. D. & CAth 640, ** The court would also note that the "signature" of the plaintiffs' attorney, as it appears on the verification of the first amended complaint and on the attached certificate of service, appears to this court to be a stamp facsimile of Mr. Mitchell's signature, as opposed to a signature itself. Thus, this court has grave concerns about whether the verification, even if the information required in Rule 1024(c) was set forth in the verification, would qualify as having been verified by an attorney, as opposed to someone affixing a stamp facsimile of his signature. In their brief in [*4] opposition to defendant's mo- tion to strike, counsel for the plaintiffs asserts that: "The first amended complaint contained the same facts as the original complaint. Only issues of law are raised that differ from those raised in the original com- plaint, namely, the elements needed to prove fraud differ from those needed to prove breach of contract. As such, there is no need to have a verification." (Page 2 of plain- tiffs' brief.) For that proposition counsel for the plaintiffs cites Milford Traumbauersville v. 0.753 Acres of Land, 25 Pa. Commw. 13, 358 A.2d 450 (1976). Unfortunately for the plaintiff, this court, upon reading Milford, finds that it does not stand for the proposition for which plaintiffs' counsel cites it. In point of fact, Milford, citing Peter (Peters) v. Department of Forest and Waters, 12 Pa. Commw. 330,314 A.2d 584 (1974), holds that "pleadings which Rule 1023 requires to be verified are limited to [**643] those 'containing averments of fact not appear- ing of record in the action."' Page 2 As will be noted below, the first amended complaint contains averments of fact not appearing of the record, in addition to those facts [*5] averred in the original com- plaint. Further, the assertion that the only new material in the first amended complaint are issues of law and that facts set forth in the first amended complaint are the same facts plead in the original complaint are also erro- neous assertions. Paragraphs 11, 12, 13, 28(f), 28(k), 30(f) and 32 of the first amended complaint contain fac- tual allegations that do not appear in the original com- plaint. Thus, the first amended complaint must be veri- fied in accordance with the provisions of Rule 1024. It was not, and therefore, it will be stricken. The court would also note that counsel for the plain- tiff failed to appear at the hearing and argument sche- duled on the motion. Counsel asserts that the hearing and argument were not on his calendar, despite the fact that the said hearing and argument were scheduled in the same order which established the answer date and the briefing schedule. ORDER And now, October 29, 1992, it is hereby ordered that: (1) The motion to strike pleading and enter judgment of defendant Snyder County Sewage Code Enforcement Committee is hereby granted. (2) The prothonotary is directed to enter judgment in favor of defendant Snyder County [*6] Sewage Code Enforcement Committee and against the plaintiffs in this action. { IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA OAKWOOD HOMES, INC. § 480 Running Pump Road § Lancaster, PA 17601 § Plaintiff, § V. § ERIN L. MATTOS § 1491 Olde Oak Court § Mechanicsburg, PA 17055 § § Defendant, § CIVIL ACTION - LAW CAUSE NUMBER: VERIFICATION 1, Michael B. Volk am the attorney for the Plaintiff in this matter. I verify that the statements contained in this Petition are true and correct to the best of my knowledge. I am making this verification as the Plaintiff is unavailable and time is of the essence. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn verification. Michael B. Volk e CERTIFICATE OF SERVICE I, Shannon O. Young, an attorney with Woolford Law, P.C., certify that on this date I served a true and correct copy of Defendant Erin L. Mattos' Preliminary Objections to Oakwood Homes, Inc.'s Complaint upon the following counsel of record by depositing the same in the United States mail, postage prepaid, addressed as follows: Michael Volk, Esquire 275 Cumberland Parkway Suite 168 Mechanicsburg, PA 17055 Attorney for Plaintiff v hannon O. Young Dated: February 23, 2010 7 AV L IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA OAKWOOD HOMES, INC. 480 Running Pump Road Lancaster, PA 17601 Plaintiff, V. ERIN L. MATTOS 1491 Olde Oak Court Mechanicsburg, PA 17055 Defendant, TO THE PROTHONOTARY: § CIVIL ACTION -LAW § CAUSE NUMBER: 10-386 N § @ O 1. ? " a7 § ORIGINAL PRAECIPE TO DISCONTINUE In accordance with Rule 229 of the Pennsylvania Rules of Civil Procedure, please discontinue without prejudice the above styled and numbered cause of action. Respectfully Michael Volk Attorney for Plaintiff Oakwood Homes, Inc. Supreme Court I.D. Number: 88553 275 Cumberland Parkway, Suite 168 Mechanicsburg, PA 17055 Telephone: (717) 889- 5989 Facsimile: (717) 441-3803 Email: volklawoffice@gmail.com s r IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA OAKWOOD HOMES, INC. 480 Running Pump Road Lancaster, PA 17601 Plaintiff, V. ERIN L. MATTOS 1491 Olde Oak Court Mechanicsburg, PA 17055 Defendant, CIVIL ACTION - LAW CAUSE NUMBER: 10-386 CERTIFICATE OF SERVICE I certify that on the IS- th day of P 2010, I sent VIA FIRST CLASS MAIL a copy of Plaintiff's Praecipe to discontinue, addressed to the following: Mr. Timothy J. Woolford, Esq. Wheatland Place 941 Wheatland Avenue Lancaster, PA 17603 Respectfully Sub e ; ? Michael Volk Attorney for Plaintiff Oakwood Homes, Inc. Supreme Court I.D. Number: 88553 275 Cumberland Parkway, Suite 168 Mechanicsburg, PA 17055 Telephone: (717) 889- 5989 Facsimile: (717) 441-3803 Email: volklawoffice@gmail.com