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HomeMy WebLinkAbout10-0387IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PETN W?)b 01F ThE: Fi , ] OTAR DOUGLAS L. ZOOK, 480 Running Pump Road Lancaster, PA 17601 Plaintiff, v EUGENE W. DIVELY III 113 Old York Road # 2 New Cumberland, PA 17070 Defendant. § CAUSE NUMBER: § § M6, 0RI§1NAL 20 10 Nr l2:c7 Ct Jb - 3 S-1 cam' 1 +C-'p 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. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-2663 AVISO Le han demandado a usted in ]a 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 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. Court Administrator 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-2663 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS L. ZOOK, § 480 Running Pump Road § Lancaster, PA 17601 § Plaintiff, § V. § EUGENE W. DIVELY III § 113 Old York Road # 2 § New Cumberland, PA 17070 § Defendant. § CAUSE NUMBER: /0 - 3?'7 C tl?'j +e- t6--COMPLAINT NOW COMES Douglas L. Zook, by and through his attorney, Michael Volk and respectfully shows this Honorable Court the following: 1. Douglas L. Zook (hereafter "Plaintiff") is an individual doing business at 480 Running Pump Road, Lancaster, Lancaster County, Pennsylvania 17601. 2. Eugene W. Dively III (hereafter "Defendant Eugene Dively") is an individual residing at 113 Old York Road, #2, New Cumberland, PA 17070. Service of Process may be had on Defendant Eugene Dively at this address. Plaintiff is referred to in the Agreement as "Owner". 4. Defendant Eugene Dively is variously referred to in the agreement as "LPer" 5. On or about July 6, 2006, Defendant entered into a contract to lease with an option to purchase a house located at 3821 Concord Street, Harrisburg, Dauphin County, Pennsylvania 17109. A copy of that agreement is hereby incorporated by reference and is attached to this Complaint as "Exhibit I". 6. The term of the lease began on 1 August 2006 and was to end on 31 December 2012, unless the purchase option was exercised before the end date. Under the terms of the Agreement, Defendant purchased an option to purchase the property during the term of the lease, with the lease and option payment being credited against the purchase and closing costs. 8. The fair rental value of the dwelling is the monthly rent reserved and agreed to under the terms if the agreement between Plaintiff and Defendant. 9. As more fully set-forth below, the agreement obligates Defendant to, among other things, l.) pay Plaintiff rent in the amount of $1,524.81, payable on the first day of each month, 2.) pay for all utility service, including sewer and trash expenses, 3.) pay all tax and insurance charges due, and 4.) to maintain the property. 10. Defendant defaulted on their lease obligations and subsequent to an eviction action, moved from the dwelling on or about 20 September 2008. 11. Plaintiff regained possession of the dwelling on or about 25 September 2008. 12. As set forth in greater detail below, Defendant' default and disregard of the terms of the Agreement by and between Plaintiff and Defendant has damaged Plaintiff. 13. A copy of the Statement showing damages due to default by Defendant is attached as Exhibit 2". 1. LOSS OF RENTAL INCOME DUE TO DEFAULT BY DEFENDANT 14. Plaintiff hereby incorporates paragraphs 1 through 15 of this Complaint as if set forth at length herein. 1.5. Paragraph 13 of the Agreement by and between Plaintiff and Defendant, titled "DEFAULT" states "It shall be a default under this agreement if you fail to (1) pay the full LP payment or any other payment required by this agreement when due, or: (2) perform any duty, obligation, or fulfill any responsibility required of you by this agreement within 3 days verbal or written notice of any such default. In the event of any default, the owner, at his sole option, may terminate all your rights under this agreement, unless you, within the said three days shall cure the Default (this cure period applies only in the event of a default for a reason other than non- payment of the LP payment; there is no notice required and no cure period for a default resulting from non-payment or late payment of the LP payment). If you abandon and recover from Lper all damages incurred by reason of your breach of this lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease..." 16. Paragraph 13 continues: " In the event of a default by you lasting more than 3 days, Owner may elect to (a) continue the lease in effect and immediately accelerate all payments due along with costs and fees provided herein, (without the right to purchase) and enforce all rights and remedies belonging to Owner under this agreement, including the right to recover the LP payment as it becomes due, or (b) at any time, terminate all your rights under this agreement and recover from Lper all damages incurred by reason of your breach of this lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease...". 17. Plaintiff suffered damages in the form of lost rental income from the date of Defendant' departure from the dwelling through 1 February 2009, when another tenant moved into the dwelling. 18. The period of non-occupancy caused Plaintiff lost rent proceeds in the amount of $7,624.05. 19. Due to the existence of the agreement and the terms shown above, Plaintiff is entitled to compensation for the rental income lost due to Defendant's breach of the agreement. 20. Defendant has refused to pay the balance due and continue to do so. 21. Any and all credits have been applied to Defendant's balance owed. 22. Plaintiff has been damaged by Defendant' failure to complete the lease term in an amount of at least $7,624.05. III. NONPAYMENT OF TAXES INSURANCE AND UTILITY CHARGES 23. Plaintiff hereby incorporates paragraphs 1 through 23 of this Complaint as if set forth at length. 24. Paragraph 2 of the Agreement states that lessee is responsible for payment of taxes and insurance on the dwelling. 25. Taxes and insurance in the amount of $2,060.31 were due, owing and paid by Plaintiff during the period of non-occupancy, from the time that Defendant moved from the dwelling and when a new lessor moved in. 26. Plaintiff was forced to pay these charges which Defendant previously agreed to pay, in accordance with the terms of the agreement. 27. Paragraph 3, titled "UTILITIES" states "You are responsible for the payment of all utilities and trash and other ongoing and maintenance services related to the premises". 28. Defendant moved from the dwelling leaving unpaid utilities in the amount of $374.96 which Plaintiff was forced to pay. 29. Defendant previously agreed to pay these charges, in accordance with the terms of the agreement. 30. Due to the existence of the agreement and the terms shown above, Plaintiff is entitled to compensation for taxes, insuirance and utility charges that Defendant agreed to pay and subsequently did not. 31. Plaintiff has been damaged by Defendant' failure to pay tax, insurance and utility charges for the dwelling in an amount of at least $2,435.27. III. PHYSICAL DAMAGE TO PROPERTY BY DEFENDANT 32. Plaintiff hereby incorporates paragraphs 1 through 31 of this Complaint as if set forth at length herein. 33. Once Possession of the dwelling was gained by Plaintiff, an inspection on or about 25 September 2009 showed damage to the house which Plaintiff was forced to pay $4,049.13 to have repaired. 34. Paragraph 8a of the Agreement by and between Plaintiff and Defendant states "You, at your own expense, must at all times maintain the premises in a clean and sanitary condition including all equipment, appliances, furniture in the premises and turn it all back over to Owner, at the end of the lease period, if you do not exercise your option to purchase, in as good condition as received, except for normal wear and tear..." 35. Paragraph 8 of the Agreement contains a subsection which states "You must also maintain all facilities, mechanicals, wiring, roofing, decks and other features of the home in good working order or appearance. 36. Paragraph 8 of the Agreement contains an additional subsection which states "You must pay all the costs of maintaining the premises the same as if you actually owned the property without the benefit of the LP structure". 37. Paragraph 8 of the Agreement contains an additional subsection which states "If you do not do what is required under this clause, Owner may (at his sole option) do the work and bill as additional rent within 10 days of being billed by Owner". 38. Paragraph 10 of the Agreement, titled "DAMAGES: states "You are responsible for damages caused by your negligence and that of your family or anyone you invite to the premises, including any guests". 39. Defendant breached his duty to maintain the premises as set forth above and as such, are responsible for the costs of repairing any physical damage to the premises. 40. Due to the existence of the agreement and the terms shown above, Plaintiff is entitled to compensation for the damage done to the property. 41. Alternatively, Plaintiff is entitled to reimbursement for expenses he was forced to incur to repair damage to the dwelling, a matter which was the obligation and responsibility of Defendant. 42. Plaintiff has been damaged by Defendant's failure to maintain the property in an amount of at least $4,049.13, exclusive of attorney fees and court costs. IV. Fraud 43. Plaintiff hereby incorporates paragraphs 1 through 42 of this Complaint as if set forth at length herein. 44. On or about July 5, 2006, Defendant falsely and fraudulently represented to Plaintiff that that he intended to perform under the terms of the agreement between the parties and that he had sufficient financial resources to do so. 45. The representations made by Defendant were in fact false. The true facts were that Defendant had no financial resources with which to pay the loan, nor had any intention to do so. 46. Defendant made these representations with the intent to defraud and deceive Plaintiff and with the intent to induce Plaintiff to enter into the contract. 47. Plaintiff, at the time these representations were made by Defendant was ignorant of Defendant's misrepresentation of their financial status and of their intention not to perform. Plaintiff, in the exercise of reasonable diligence, did not discover Defendant's true financial status or intentions. 48. In reliance on Defendant' representations, Plaintiff was induced to enter into the Contract. 49. If Plaintiff had known of the true financial condition and actual intentions of Defendant, Plaintiff would not have taken such action. 50. As a proximate result of Defendant' fraud and deceipt, Plaintiff Plaintiff has been damaged in the amount of $14,108.45, in addition to attorney's fees and costs of court. V. ATTORNEY FEES AND COSTS 51. Plaintiff hereby incorporates paragraphs 1 through 50 of this Complaint as if set forth at length herein. 52. Paragraph 21 of the Agreement by and between Plaintiff and Defendant, titled "ATTORNEY FEES AND COSTS", stats as follows: "In any action or proceeding involving a dispute between Owner and LPer to enforce the terms and conditions of this lease with option to purchase, or to recover possession of the premises from LPer, the Owner shall be entitled to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings in the amount of 5% of the option cost or the actual fees, whichever is greater". 53. Due to the existence of the agreement by and between Plaintiff and Defendant and the terms shown above, Plaintiff is entitled to recover all costs of court and attorney fees. PRAYER WHEREFORE, Plaintiff respectfully requests that the Court grant judgment in his favor and against Defendant as shown below: a. $7,624.05 for lost rent; b. $2,435.27 for unpaid utilities, insurance and taxes; c. all Costs of Court; d. $1,500.00 for Attorney's fees; f. Plaintiff respectfully requests the grant of such and other relief as the Court deems appropriate. (This space intentionally left blank.) Respectfully Submit Michael Volk Attorney for Plaintiff Douglas L. Zook 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 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS L. ZOOK, § 480 Running Pump Road § Lancaster, PA 17601 § Plaintiff, § V. § EUGENE W. DIVELY III § 113 Old York Road # 2 § New Cumberland, PA 17070 § Defendant. § 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 penalti of 18 Pa. C.S.A. 4904 relating to unsworn verification. Michael B. Volk EXHIBIT 1 DOUGLAS L. ZOOK 480 Running Pump Road Lancaster, PA 17601 Telephone: 717-735-0030 Fax: 717-735-0029 Statement of Rent and Charges Due May 26, 2009 Eugene W. Dively III 3821 Concord Street Harrisburg, PA 17109 Rent due through term of lease or until Another Lper move in: 02/01/09 $7,624.09 Real Estate Taxes and Insurance Due: $2,060.31 Utilities Due: Damages to Home: $374.96 $4,049.13 Net Amount Due and Owing: $14,108.45 EXHIBIT 2 RESIDENTIAL LEASE WITH PURCHASE OPTION You, Eugene W. Dively III (also called Lper in this contract), have given a deposit in the amount of $11,000 (eleven thousand dollars), in the form of $1000 cash and the tendering of the deed to 255 Crescent Street, Harrisburg, PA 17104 of which LPer is equitable owner and has facilitated the deeding of the property to Owner. Owner has granted $10,000 in exchange for 255 Crescent Street, Harrisburg PA 17104 subject to the terms of clause 54 below. After the Owner of the premises accepts and signs this lease, your deposit will become non-refundable and will be applied as follows: To non-refundable option consideration ....................................:$11,000 Your fast lease payment (also known as LP payment) is due on or before 8/1/06 for the period _8/1-8/31/06 .................. $1,524.81 The Non-refundable option consideration gives you the option to purchase the property during the term of the lease, so long as you do all the things you are agreeing to do, when you have agreed to do them. If Owner or his authorized agent does not accept and sign this agreement within 15 days, it shall terminate and your deposit will be returned. Y ou are offering to lease from the Owner the premises, described as 3821 Concord St Harrisburg Pa. 17109 with a house to be completed upon it as described below in the County of Dauphin, State of PA upon the following TERMS AND CONDITIONS. TERM: The term of this lease will start on _8/1/06 , and end on _12/31/2012 , unless the purchase option is exercised before the end date. 2. MONTHLY PAYMENT: The monthly LP payment at the start of the lease will be $_1524.81 per month due in advance on the 1 st day of each month to Owner or his authorized agent at the following address 480 Running Pump Rd, Lancaster, PA 17601 or at a different address if the Owner notifies you to change the address you send your payment to. The LP payment includes S-0 as a payment toward taxes and insurance. If this amount is not enough to cover the actual taxes and insurance, the Owner will send you a bill for the difference which you agree to pay as additional rent within 30 days of being billed by Owner. If you are ever late paying it tax or insurance bill, then at Owners sole option you will be given notice of the monthly amount equal to 1/12 of the estimated taxes and insurance shortfall that will be added to the monthly LP payment for future tax and insurance bills, which shall then be due monthly with your LP payment as additional rent. If you don't pay your payment on or before the due date you must pay Owner a $100 plus $3 a day until paid late fee. If you bounce a check for any reason you must pay Owner a $30 bad check fee plus interest at 1.5% per month until the payment is made good. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement 3. UTILITIES: You are responsible for the payment of all utilities and trash and other ongoing maintenance and cleaning services related to the premises. 4. USE: You may only use the premises as a single family residence. Any other use requires written approval from Owner. 2 PETS: You may not have pets on the premises unless you have written approval first from Owner. If Owner approves any pets, they must be kept in compliance with all laws. If Owner approves a particular pet or pets, that does not -Cutomatically approve other pets without written permission from Owner. 6. ORDINANCES AND STATUTES: You agree to comply with all deed restrictions, statutes, ordinances and requirements of municipal, state and federal authorities now in force, or which may be put into force at a later time, pertaining to your use of the premises. 7. ASSIGNMENT AND SUBLETTING: You may not assign this agreement or sublet any portion of the premises without written approval from the Owner. If Owner approves one assignment or sublet, that does not automatically approve other assignments or sublets without written permission from Owner. 8. MAINTENANCE, REPAIRS, OR ALTERATIONS: The premises are either under construction or 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, Owner must acknowledge them in writing prior to you moving in, otherwise you have accepted the home in as is condition at the time of movenn. 8.a. WAIVER OF WARRANTIES, ACCEPTANCE AS IS: This agreement constitutes the entire contract between the parties hereto and the Seller is not liable or bound in any manner by expressed or implied warranties, guaranties, promises, statements, representations, or information pertaining to said premises. Except as acknowledged by Owner in writing prior to your moving in, you agree to take the premises as is and with any and all faults, known or unknown. The LPer waives any and all statutory or implied warranties with regard to defects in, or the habitability of, the premises. The terms of this waiver shall survive settlement if Lper exercises the purchase option. You, at your own expense, must at all times maintain the premises in a clean and sanitary condition including all equipment, appliances, furniture and furnishings in the premises and shall turn it all back over to Owner, at the end of the lease period, if you do not exercise your option to purchase, in as good condition as received, except for normal wear and tear. Pet stains and odors and other pet damage shall not be considered normal wear and tear, even if pets were approved by Owner. You must water and maintain any surrounding grounds, including any storm water facilities, and you must maintain drainage away from the house including any downspout extensions or pipes. You must maintain all lawns and shrubbery and keep the premises clear of rubbish or weeds. s You must also maintain all facilities, mechanicals, wiring, roofing, siding, decks and other features of the home in good working order and appearance. You have inspected and verified the operating condition of the smoke detectors and agree to maintain them in an operating condition including weekly testing and battery replacement when needed, at all times. You must get written permission from Owner to paint, paper, or otherwise decorate or make alterations to the premises. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement Date 71 1P I'd 40 You must keep all kids toys in the back of the house out of site or inside when not being played with, no bikes, toys, trampolines, etc may be stored in the front yard. All grass must be kept under 5" in length at all times. You must pay all the costs of maintaining the premises the same as if you actually owned the property without benefit of the LP structure. Upon notice from Owner, the local municipality, any state or federal agency, including but not limited to Soil Conservation Service (SCS), or the Department of Environmental Protection (DEP), you must immediately comply with any and all assessments and requirements including but not limited to any National Pollutant Discharge Elimination System Permit (NPDES) or other permit requirements pertaining to the property, at all times, and if Owner, at it's sole option, attempts to defend against such an assessment or requirement and/or receives a fine due in full or in part to your non- compliance with these requirements, you must reimburse Owner for all costs of defense against said action and also for (at Owners sole option) bringing the premises into compliance together with any fines and/or legal costs incurred by Owner by your failure to comply, at cost plus 20%, within 10 days of being billed by Owner. This obligation shall survive settlement if the purchase option is exercised. DAMAGES FOR NEGLIGENCE: You are responsible for damages caused by your negligence and that of your family or anyone you invite to the premises including any guests. 10. ENTRY AND INSPECTION BY OWNER: You must permit Owner or Owners Agent to enter the premises at reasonable times and upon reasonable verbal or written (at Owners sole option) notice for the purpose of making necessary repairs, or to show the premises to prospective LPer, purchasers, or mortgage's, or to see if premises is being kept in conformance with this agreement. For these purposes, 24 hours is deemed reasonable and acceptable notice. 11. INDEMNIFICATION: Under no circumstances will Owner be liable for any damage or injury to You , or any other person, or to any property, occurring on any part of the premises. You agree to hold Owner harmless from any claim for damages, no matter how caused, and you also agrees to indemnify Owner for any and all damage, losses or injury occurring on or because of the premises for which claim is made against the Owner or premises including, but not limited to, costs and attorneys fees incurred in defending against any claims or in enforcing this agreement. 12. PHYSICAL POSSESSION: If Owner is unable to deliver possession of any or all the premises on the start date of the term, Owner won't be liable for any damages that result. This will also not cause this agreement be void or void-able, except at Owners sole option, but you will not have to pay any LP payment for the undeliverable part until possession is delivered. If this agreement applies to property which is new construction, possession shall be considered to have been delivered on the day after Certificate of Occupancy (if required) is received by Owner, or the date Owner notifies you the property is substantially completed if no Certificate of Occupancy is required by the municipality. You may terminatq this agreement if full possession is not delivered within 180 business days of the start of the term and all option consideration paid shall be refunded. Any delay in the delivery of physical possession shall not extend the end date of the term or the option expiration date. Your LP payment obligation will start on the date of the start of the term according to Clause 1 above, or the date of the acquisition of any required certificate of Occupancy, or the date Owner notifies you the property is substantially completed if no Certificate of Occupancy is required by the municipality, whichever is later, regardless of when you actually move in. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement l?;R Date -711, /01, 4 13. DEFAULT: It shall be a default under this agreement if You fail to (1) pay the full LP payment or any other payment required by this agreement when due, or, (2) perform any duty, obligation, or fulfill any responsibility required of You by this agreement within 3 days of verbal or written notice of any such default. In the event of any such default, as set out 9this section 13.(2) YOU MAY CURE THE DEFAULT BY PERFORMING WITHIN THE THREE DAYS. AS TO ALL OTHER DEFAULT, IT SHALL BE NON-CURABLE AND the Owner, at his sole option, may terminate all your rights under this agreement, there is no notice required and no cure period for a default resulting from non-payment or late payment of the LP payment). In the event of a default by you lasting more than 3 days, Owner may elect to (a) continue the lease in effect and immediately accelerate all payments due along with costs and fees provided herein, (without the right to purchase) and enforce all rights and remedies belonging to Owner under this agreement, including the right to recover the LP payment as it becomes due, or (b) at any time, terminate all of your rights under this agreement and recover from LPer all damages incurred by reason of your breach of the lease, including the cost of recovering the premises and the value of the LP payment for the balance of the remaining term of the lease, even if your default be remedied after 3 days from the effective date of notice. Actual damages for the remarketing of the property shall be deemed to be 6% of the option price, plus of loss of rent and any get ready costs and costs of collection incurred by Owner until a new buyer or LPer is found. Pending an accounting of actual damages, liquidated damages in the event of a default shall be deemed to be $8000.00 plus costs of collection and may be pursued at Owners sole option in addition to other actual damages. 14. ABANDONED PROPERTY: If you abandon or vacate the property, while in default of the payment of LP payment, Owner may consider any property left on the premises to be abandoned and may immediately dispose of the same in any manner and/or at Owner's sole option, retain full and complete title to the property abandoned without any notice to LPer. In the event the Owner reasonably believes that such abandoned property has no value, it may be discarded. You agree that all property on the premises is subject to a lien in favor of Owner for the payment of all sums due hereunder to the maximum extent set forth in this Agreement. 15. WAIVERS: No failure of Owner to enforce any term of this agreement shall be deemed a waiver of that term currently or in the future, nor any other term contained in this agreement. Specifically, the acceptance of partial payment of LP payment or any other payment required by this agreement shall never be deemed a waiver of Owners right to the full amount due. 16. NOTICES: Any notice, which either party may or is required to give may be given by hand delivery or by mailing the same First Class Mail postage prepaid to LPer at the premises or by posting conspicuously on the front entrance of the premises, or to Owner by both regular and Certified Mail, postage prepaid to both addresses shown below or at such other places as may be designated by the Owner from time to time. Notice to Owner shall be deemed to have been given upon the day showing on the signed certified mail return receipt. 17. NON-MODIFICATION: Acceptance of partial payments or a late payment by Owner shall not modify this agreement. 18. HEIRS, ASSIGNS, SUCCESSORS: This lease is binding upon and inures to the benefit of the heirs, assigns, and successors in interest to both the Owner and You, except as precluded by Paragraph 7 herein. 19. TIME: Time is of the essence to this agreement. This means all dates and time frames must be honored strictly. I We have read and fully understand and agree to the terms and conditions contained in this entire agreement Date 7 0 1, 20. HOLDING OVER: If you do not exercise the purchase option and you want to stay after the end of the term of this agreement is expired, then with the consent of the Owner, your staying will be a month-to-month tenancy with the other terms of the agreement, except the purchase option provision, remaining unchanged. When you want to end the month to month tenancy you must give 60 days written notice from the first of the month to Owner. You must give 60 days notice of your intention to vacate prior to the end of initial term. Your failure to provide such 60 days notice shall be considered your application for holding over month- to-month tenancy in accordance with this clause. No such holding over or extension of this lease shall extend the time for the exercise of the purchase option unless otherwise agreed upon, IN WRITING, by Owner. 21. ATTORNEY FEES AND COSTS: In any action or proceeding involving a dispute between Owner and LPer to enforce the terms and conditions of this lease with option to purchase, or to recover possession of the premises from LPer, the Owner shall be entitled to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings in the amount of 5% of the option price or the actual fees, whichever is greater. 22. OPTION: So long as LPer is not, AND has not ever been at any time, in default in the performance of any term of this lease, LPer shall have the option to purchase the premises for a PURCHASE PRICE OF $184,900 plus (unless option is exercised on or before 8/15/07), all costs of construction financing, title insurance, transfer taxes, and other closing costs paid by Owner in acquiring lot and building the house; plus any prepayment penalty required by Owners underlying lender at the time Lper exercises their option to purchase under the following TERMS and CONDITIONS: A. Each time the current LP payment (as adjusted from time to time by the terms of this agreement) in the LP payment envelope is postmarked by the due date and mailed to the Owner, or electronic payment is made on or before the due date, You shall be entitled to a 9.99%APR 30 yr amortization credit toward the purchase price, when exercising the option to purchase. In the event that Owner's interest rate rises on any mortgage he has on the property while you are leasing it, your monthly payment and/or amortization credit (at Owners sole option) will change, to reflect the increase. Depending on your start payment, you may have an initial negative amortization credit. B. Your option to purchase cannot be sold or assigned without the Owner's written permission. You may not sublease the premises without the Owner's advance written permission. Permission to sell or assign the option, or sublease the premises, may be unreasonably withheld by Owner. C. If there is any default of any of the terms of this agreement that is not cured under the terms of this agreement or if it shall become necessary to evict the LPer for any reason or if the LPer does not exercise it's purchase option, the LP payment amortization calculation credit is canceled. t D. When the purchase option is exercised the property shall be conveyed in its then "as is" condition with no warranties/representations or guarantees by Seller. E. The nonrefundable option consideration shall be credited to buyer's purchase price along with any LP payment amortization credit earned when the option is exercised. Except as expressly set forth in this agreement, NEITHER THE OPTION CONSIDERATION NOR THE LP PAYMENT AMORTIZATION CREDIT IS REFUNDABLE UNDER ANY CIRCUMSTANCE. F. You are responsible to arrange your own financing for the purchase price if you exercise your purchase option. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement ?_ Date 6 G. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to increase the LP payment and/or interest rate for calculation of any amortization credit by 10% for each year in which there is any late payment, without further notice to you. H. If any payment was late for any reason whatsoever, the Owner, at his sole option, may elect to increase the option price by 10% for each year in which there is any late payment, without further notice to you. 1. If any payment is late for any reason whatsoever by more than 5 days, the applicable monthly payment at that time shall be divided by 4 and this shall become a weekly payment due on the Monday of each week thereafter and the same late penalties will apply to that weekly payment as apply to the monthly payment. J. On the monthly payment (before adding 1/12 the estimated annual taxes and insurance) will increase to $_1654.78_ and the base rate for calculating the amortization credit at the time of option exercise will change to 10.99 (unless adjusted higher by another clause in this agreement) for the remainder of the term of this LP. K. Equity share: In the event option is not exercised on or before 8/15/07, Owner shall be entitled to 50% of all appreciation over the option exercise price as determined by a state certified appraiser hired by Owner the cost for which will be paid by you. 23. DISCLAIMER: You acknowledge that there is no way to know what the availability of financing, total purchase costs, and lenders prepayment penalties will be at the time you may decide to exercise your option to purchase. Therefore, you agree that these items shall not be conditions of performance of this agreement and you agree that you have not relied upon any representations or warranties of Owner, his agents, brokers, affiliates, or other parties, in regard to these issues. 24. FIXTURES: All improvements, fixtures, attached floor coverings, draperies including hardware, shades, blinds, window and door screens, storm sash, combination doors, awnings, and items permanently attached, shall be included, unless specifically excluded here NONE 25. ENCUMBRANCES: LPer shall take title to the premises subject to (1) Real Estate Taxes not yet due and (2) Covenants, conditions, restrictions, reservations, rights, rights of way and easements, if any. 26. EXAMINATION OF TITLE: You will have Fifteen (15) days after you notify Owner of your intention to exercise the option to purchase to order at your own cost, from a title company approved by Owner at Owner's sole discretion, and examine the title to the property and to report in writing any valid objections you have. Any exceptions to the title, which would be disclosed by examination of the record, shall be deemed to have been accepted unless you report them within the allowed fifteen (15) days. If you object to any exceptions to the title, Owner may, at his sole option, use all due diligence to remove such exceptions at his own expense, within ninety (90) days after receiving your report in writing. But if such exceptions cannot be removed within the ninety (90) days allowed, or if Owner elects not to remove such exceptions, all rights and obligations hereunder may, at your option, terminate and end unless you elect to purchase the property subject to such exceptions. 27. CLOSING COSTS: At closing, You will pay all transfer tax, title fees and other closing costs. 28. PRORATIONS: All LP payments, taxes, premiums on insurance, and other expenses of the property to be prorated as of possession by You. I/We have read and fully understand and ee to the terms and conditions contained in this entire agreement _? Date 71 r. m 7 29. EXPIRATION OF OPTION: This option may be exercised at any time after _8/1/07 and shall expire at midnight _I2/31/08 . After the expiration date of the option, this agreement shall be a lease only. Owner will have no further obligation to you related to the option and you will have no more rights under the option, whether legal or equitable. After expiration of option, Landlord at it's sole option, may at any time give 90 days written notice to Lper and terminate the lease. 30. NOTICE AND EXERCISE OF OPTION: When you have decided to exercise your option to purchase you must mail a notice of your intention, together with an additional $1000 in option consideration, to the owner, at least 60 days prior to the expiration of this option. If you have not defaulted on any of the terms of this agreement, when you exercise the option, the non-refundable option consideration and any credit due from the LP payment as noted in section 22 shall be credited to your purchase price and closing costs. 31. SEVERABILITY: If any part of this agreement is held to be invalid or unenforceable, in whole or in part, then that provision will be ineffective only to the extent of the invalidity or unenforceability without in any way affecting the validity or enforceability of the remaining parts of this agreement. 32. JOINT AND SEVERAL LIABILITY: If any default occurs, each of you, if there be more than one, shall be jointly and severally liable under all terms of this agreement. This means each of you may be held responsible individually for payments of all amounts due under this agreement. 33. OTHER DEBT: As part of this agreement, You agree to incur NO ADDITIONAL DEBT without the written consent of Owner. You also agree to pay all present payments on time. If you do not pay all present payments on time, or you incur additional debt without the written consent of Owner, you will be in default of this agreement. You agree that Owner or his agent shall have the right at any time to obtain a credit report and/or employment and income source verification on you during the term of this agreement and any subsequent agreements or actions related to this agreement. 34. INSURANCE REQUIREMENTS: At all times LPer shall fully insure the premises for both physical damage and liability with the Owner as the primary insured party. Coverage's to be minimum $500,000 liability and option price. In the event Owner elects, at its sole option, to directly acquire insurance, LPer's payment shall be increased according to the cost of the insurance plus a 10% administration fee; in this case, Owner's policy will not cover your personal property or liability, therefore Owner requires you to obtain a renters insurance policy to provide liability and contents coverage for you and your personal property and to name Owner as an additional insured on your renters policy. 35. SALES TAX: You are responsible for all sales tax due if the State determines at some time that this is a taxable transaction. In the event of a determination that sales tax is payable on the LP payment, your payment will be adjusted accordingly. 36. VENUE: You agree that.regardless of where this agreement was signed, that this agreement shall be treated for legal purposes as entered into at Owners main office in Lancaster County, PA and that any legal actions that result from this agreement shall be in the proper jurisdiction of the District Justice of Owners current office in Lancaster County, PA or the Courts of Common Pleas of Lancaster County, PA or the District Justice or Courts of Common Pleas where the property is located, at Owners sole option. 37. OWNERS TITLE: Owner, as referenced herein, may be equitable and may not necessarily be the "record" owner. I/We have read and fully understand d ee to the terms and conditions contained in this entire agreement Date -7 0 8 38. OWNERS UNDERLYING FINANCING: Contingent upon Owner closing on the permanent underlying financing for Owner. In the event this does not close, this agreement, at Owners sole option, may be declared null and void. 39. ENTIRE AGREEMENT- You acknowledge that this document contains the entire agreement between you and the Owner, his agents, employees or related parties and that you have no other oral or written agreements with Owner or any other person or business related to this property. 40. LEGAL REVIEW: You acknowledge that Owner has recommended that you have this Agreement reviewed by legal counsel to make sure you understand the legal significance of all terms and conditions of this agreement and you have either A) done so; or B) waived this recommendation. You also acknowledge that this Agreement and all terms and conditions of it were open to negotiation and that you are satisfied with all terms and conditions, as they exist. 41. SUPERSEDING AGREEMENT: This agreement supersedes all others between the parties and any affiliates. Nothing in this clause shall preclude the final reconciliation of all taxes and insurance and any amortization credit due under preceding LP agreement, if any. If at any time, to facilitate Lper obtaining financing, Owner and Lper enter into a simple sales agreement for the property, that sales agreement and any term within it shall never in any way supersede or modify the terms of this agreement. All terms of this agreement shall supersede all terms of any sales agreement done for financing convenience purposes and the terms of this agreement shall remain in full force and effect at all times even when a lender is processing a loan under an additional sales agreement. 42. BROKER DISCLOSURE: Douglas L. Zook is a Licensed RE broker functioning solely as a principle in this transaction. You agree there are no brokers involved in this transaction unless identified here NONE 43. AUTOMATIC PAYMENT: You agree that LP payment can be taken from your bank account by automatic electronic withdrawal on the due date, at owners sole option, and agree to provide the necessary information to set this up within 10 days of request by owner. 44. PRE-OCCUPANCY: Should you, with Owners required permission, occupy the premises prior to the start of term of this agreement, you will owe in advance an amount equal to 1/30 of the monthly payment for each day you occupy prior to the start of the term. No amortization credit will accrue for this preoccupancy. 45. NOT AN INSTALLMENT SALE: You expressly agree that this is solely a lease with option to purchase agreement and shall never be construed to be an installment sales agreement under any circumstance. 46. RECORDING. Under no circumstances shall Tenant record this lease. Landlord may record at his sole option. 47. LEAD NOTICE: If checked here, this is a pre-1978 home and a lead ngtice is attached: 48. MOLD: Mold is caused by moisture and certain types can be a hazard to your health. If you ever have a moisture problem, whether it be from a pipe leak, roof leak, flood, or any other cause it is extremely important to address it immediately. Please contact Owner immediately if any moisture problem develops so Owner can suggest ways to minimize the risk of mold developing so you can protect your home and your health. Owner will not be liable for any damage or injury to You , your invitees, or any other person, or to any property, related to mold. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement Date 716 04 _ 9 49. CARBON MONOXIDE: Carbon Monoxide is a byproduct of combustion of fossil fuels such as natural gas which your home may be heated with. If you do not keep your heat system and hot water heater maintained, carbon monoxide can be released into the home which can make you sick and can even kill you. It is your responsibility to keep your home maintained at all times including your gas systems to protect your health. While not required by law, Owner recommends you have a carbon monoxide detector operable in your home at all times. They can be acquired at the local hardware store for less than $50. Owner will not be liable for any damage or injury to You, your invitees, or any other person, or to any property, related to carbon monoxide. 50. RADON: Radon is a naturally occurring clear and odorless gas that can increase your risk for certain kinds of cancer and other illnesses if the concentration is too high. High levels of radon are easily mitigated by a vent system. Owner makes no representations about the existence or non- existence of radon in this home. You are encouraged to satisfy yourself if you have any concerns about radon in your home. 51. WATER QUALITY It may or may not as yet be determined if your home will be dependent upon a public water supply or on a well. If it is or becomes dependent upon a well, Owner makes no representations or warranties as to the quality of water from the well, the measures, equipment or costs which may be necessary to store, deliver or treat the water, in order for it to be suitable for domestic use and consumption. Under no construction of this agreement, implied or express, shall Owner be considered responsible for the ultimate quality or suitability of the water for domestic use. Water quality can change over time due to many environmental and uncontrolled factors. Water testing is readily available and LPer is encouraged to investigate and become satisfied as to any concerns about water quality in your home. It is solely the responsibility of LPer to do so, if desired, and LPer agrees to hold Owner harmless from any claims by LPer or claims by parties in possession by or through LPer, from all damages, costs and attorney fees, which may be applied to Owner as a result of such claims. 52. ARBITRATION CLAUSE: This Agreement shall be governed by and construed in accordance with the law of the State of Pennsylvania. Any action to pursue eviction or regain possession and obtain judgment for rent liability and property damage may be pursued in the appropriate courts of said state, at the sole discretion of the Owner. Any other claims or action, by either party, to enforce or interpret this agreement and all other disputes under the agreement shall be resolved by binding arbitration in Lancaster, PA. Either party shall give notice according the notice provisions of this agreement, 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 parry, shall be conclusively deemed a waiver of the right to choose and the matter will proceed under the single arbiter chosen timely. I/We have read and fully understand and agree to the terms and conditions contained in this entire agreement _ Date y 10 53. CONSTRUCTION CLAUSES: House being built is a 26x40 bilevel. 2 car under garage, stone front, Heat pump CAC, 10x10 deck, std doors except slider in dining, LL rear, W/D in 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 (Owners Builder) standard construction practices. Due to varying costs because of lot and local conditions, site work is included in the LP Purchase Option Price in clause 22 above subject to the following limits. Should site work exceed the below limits, Purchase Price shall be adjusted to reflect the actual costs of the lot improvements over the below limits. a. Excavation including Erosion and Sedimentation Controls (E&S), tree, stump, brush and rock and fill import or removal, backfill and rough grade and final grade. Driveway with stone plus any required or agreed paving and sidewalks and curbs. Includes all trenching for utilities and any other excavating work not covered under water and sewer below. $4000 b. Fine grade and seeding: $1000 c. Storm water facilities beyond downspout. $-0- d. Well including pump, trenching, and pressure tank, or if public water: permit, trenching and piping into the house, including pressure reducing valve if needed and meter. $2500 e. Septic system including all permits, labor and material, wiring and plumbing, and covering with fill and topsoil, or if public sewer: permits, trenching and piping from house, including any pump systems required. $2500. 54. HOUSE TRADE: 255 Crescent St. Harrisburg Pa. 17104 is traded as part of this agreement and is Non-refundable option consideration. Lper to provide certification that all taxes have been paid within 10 days of the signing of this agreement. LPer certifies there have been no deficiency notices regarding the house. LPer shall leave all appliances and turn over in broom clean condition ready to be resold. Lper shall pay all expenses on the house including Owners insurance until all these conditions are complied with. $10,000 has been credited to non-refundable option consideration based on LPers representation of what house should sell for but after the sale of the property the actual net proceeds to owner, not including interest if owner finances it, but after accounting for costs of advertising and sales labor, any taxes/inurance or other maintenance accrued before it is sold, will all adjust the option consideration downward if Owner does not net at least $10,000. Owner may, at his sole option, terminate this agreement if there are title defects found on the house to be used as non- refundable option consideration or Owner may pay the defects off and add any costs advanced by owner to clear the title to the option exercise price while adjusting the monthly payment to reflect the higher option price The payment on the LP will be adjusted when those figures are known to reflect any lowering of the option consideration. You agree to sign a revised LP with the adjusted option price and payment within 10 days of receiving notice from Owner of his costs to address home liquidation under this clause. UWe have read and fully understand and agree to the terms and conditions contained in this entire agreement Date G 11 55. Consumer Notice: You, the Buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right. By signing below, you acknowledge you 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 WHEREOF, AND INTENDING TO BE LEGALLY BOUND HEREBY, THE PARTIES HERETO HAVE AFFIXED THEIR RESPECTIVE HANDS AND SEALS, THIS DAY OF U , 2006 ? Witness J LPer (SEAL) Witness LPer (SEAL) Current address: 255 Crescent St. Harrisburg Pa. 17104 ACCEPTANCE By signing below, the Owner accepts your offer and acknowledge Owner: Douglas L. Zook 480 Running Pump Rd and PO BOX 1277 Lancaster, PA 17601 Granby, CO 80446 V. Pennsylvania Notice of Cancellation Date of Transactior?- You may cancel this transaction, without any penalty or obligation, within three business days from the above date. If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten business days following receipt by seller of your cancellation notice, and any security interest arising out of the transaction will be cancelled. If you cancel, you must make available to the seller at your residence in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk. If you do make the goods available to the seller and the seller does not pick them up within twenty days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for the performance of all obligations under the contract. To cancel this transaction, mail or deliver, a signed and dated copy of this cancellation notice or any other written notice, or send a telegram, to Douglas L. Zook at 480 Running PwV Road, Lancaster, PA 17601 not later than midnight of 7z 12 I hereby cancel this transaction. Date Buyers Signature, I was given 2 copies of this Notice of Cancellation form along with my LP agreement on 7 /-P (Date) Signed: ?? 48. In reliance on Defendant' representations, Plaintiff was induced to enter into the Contract. 49. If Plaintiff had known of the true financial condition and actual intentions of Defendant Plaintiff would not have taken such action. 50. As a proximate result of Defendant' fraud and deceipt, Plaintiff Plaintiff has been dama the amount of $14,108.45, in addition to attorney's fees and costs of court. ged in V. ATTORNEY FEES AND COSTS 51. Plaintiff hereby incorporates paragraphs 1 through 50 of this Complaint as if set forth at length herein. 52. Paragraph 21 of the Agreement by and between Plaintiff and Defendant, titled "ATTORNEY FEES AND COSTS", stats as follows: "In any action or proceeding involving a dispute between Owner and Leer to enforce the terms and conditions of this lease with option to purchase, or to recover possession of the premises from LPer, the Owner shall be entitled to receive from the other party attorney fees, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings in the amount of 5% of the option cost or the actual fees, whichever is greater". 53. Due to the existence of the agreement by and between Plaintiff and Defendant and the terms shown above, Plaintiff is entitled to recover all costs of court and attorney fees. PRAYER WHEREFORE, Plaintiff respectfully requests that the Court grant judgment in his favor and against Defendant as shown below: a. $7,624.05 for lost rent; b. $2,435.27 for unpaid utilities, insurance and taxes; C. $4,049.13 for damages to the dwelling; d. all Costs of Court; e. $1,500.00 for Attorney's fees; f. Plaintiff respectfully requests the grant of such and other relief as the Court deems appropriate.