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HomeMy WebLinkAbout01-2183WHEATLAND CUSTOM HOMES, INC, Plaintiff LARRY JACKSON AND DEBORAH JACKSON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within Twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you, and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted an la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguiemes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado gue si usted no se defienda, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier gueja o alivio gue es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO T1ENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIKECCION SE ENCUNENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEOAL. Cumberland County Bar Association 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 WHEATLAND CUSTOM HOMES, INC, Plaintiff LARRY JACKSON AND DEBORAH JACKSON, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION ~ LAW NO: COMPLAINT AND NOW COMES the plaintiff, Wheatland Custom Homes, Inc., through its attorneys, Adler & Adler, and respectfully represents the following: l. Plaintiff, Wheatland Custom Homes, Inc, is a Pennsylvania corporation with a principal place of business located at 447 Granite Run Drive, Lancaster, PA 17601. 2. Defendants are adult individuals with a principal residence located at 6202 Crofton Court, Mechanicsburg, PA 17050. 3. In February of 2000, plaintiff and defendants entered into a Building Agreement (hereinafter "Building Agreement") in which plaintiffagreed to build a home for defendants for a base price of $176,905.00. A copy of said agreement is attached hereto as Exhibit "A" 4. The home is located at the present address of defendants listed above. 5. The home was substantially completed by plaintiff on or about October 27, 2000. 6. Defendants moved into the home on or about October 28, 2000. 7. Defendants had not paid plaintiff $84,797.00 as of the time they moved into the home in violation of the Building Agreement. 8. Pursuant to Paragraph 4.D. of the Building Agreement, payment in full was due upon occupancy of the premises by defendants. 9. Pursuant to paragraph 4.F. of the Building Agreement, late charges amount to interest on the unpaid balance in the amount of 15% compounded monthly. 10. $84,797.00 remained unpaid as of the time defendants moved into the home. 11. In violation of paragraph 5.B. of the Building Agreement, the Owner took possession of the home without paying the full contract sum. 12. On November 8, 2000, plaintiffwas paid $68,234.00 by defendants, 11 days after it was due. 13. Late charges on this balance due accrued at $34.85 per day for 11 days amounts to $383.85. 14. On November 8, 2000, in order to try to avoid a lawsuit and work with defendants, although not required by the Building Agreement, plaintiff entered into an Escrow Agreement (hereinafter "Escrow Agreement") attached hereto as Exhibit "B." 15. At the time the Escrow Agreement was entered into, William L. Adler, Esquire, was holding $13,655.00 in escrow pursuant to that Agreement. 16. The Lender is holding $5,250.00 for $2,342.00 worth of work 17. Plaintiffhas repeatedly gone to the home to attempt to complete the punch list items as provided for in the Escrow Agreement. 18. Defendants are now refusing to permit plaintiffto complete the punch list items. 19. Only minor items remain to be done on the punch list in the Escrow Agreement. 20. Defendants have refused to release any funds from escrow to plaintiffbut for $2,000.00. 21. On February 2, 2001, a letter dated February 1, 2001 was sent by plaintiWs counsel to defendants requesting that an inspector be hired pursuant to the Escrow Agreement. 22. Defendants have refused and continue to refuse to permit an independent inspector to come to the property to review the workmanship of plaintiff and the completion of the punch list items set forth in the escrow agreement. 23. Defendants continue to come up with additional items not covered in the Escrow Agreement but which may be warranty items. 24. Defendants have breached the Building Agreement by not paying the contract price in full at the time of taking possession. 25. Late charges are due under the Building Agreement in the amount of at least $383.85. 26. Defendants have breached the Escrow Agreement by refusing to release any additional funds pursuant to the agreement. 27. Defendants have breached the Escrow Agreement by refusing to permit plaintiffto finish the items in the Escrow Agreement and by refusing to permit an independent inspector to review the work of plaintiff 28. Defendants owe plaintiff$383.85 in addition to late charges at the rate of $5.61 per day beginning February 5, 2001, pursuant to the Building Agreement, on the outstanding balance being held in escrow. 29. Defendants owe plaintiffS11,655.00 held in escrow by William L. Adler and $2,908.00 of the $5,250.00 being held in escrow by Lender representing the balance remaining due under the Building Agreement and Escrow Agreement. WHEREFORE, plaintiffs demand judgment against defendants in the amount of $14,947.00, together with any damages suffered as a result of the signs being placed on the lawn of defednants, together with interest and costs of suit which amount requested requires reference to compulsory arbitration. William L. Adler, Esquire ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 April 6, 2001 VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: WHEATLAND CUSTOM HOMES, INC, by Rick Martin, President 87:41 717-56B-3445 U?~EATLAI',D CUSTOS H?,~ PAGE ~2 BUILDINO AGREEMENT 1. P. AlgJ~. TI~S AG1LEEMENT, is made this ... day of February, 2000 by a-d between WHEATLAND CUSTOM HOMES, INC., a Pennsylvania Corporation, having its principal place of business at 447 Granite Run Drive, Lancaster, PA, 17601 ("Builder") and Larry and Deborah Jackson, having an address of 5007 Inverness Drive, Mechanicsburg, Pa, 17055 ("Owner"). Bu. ldeds telephone 717-560-3400 and Owner's telephone: 717-73%3754 residence; 717-~- wor,t. 2. Premises, Owner represents trod warrants to Builder that Owner has an unencumbered fee simple title to certain real property located at Lot 302, Dave Ridge, Cumberland Counb', Pennsylvania, which property ("Premises") is more fully described in Owner's deed and the physic~.l boundaries of which have been pointed out to the Builder by Owner. The Owner further represents and warrants that the various easements, deed restrictions, statutes and ordinances applicable to the Premises permit the Premises to be used for residential purposes and further permits the house ("House') contemplated herein to be constructed on the Premises at the location as depicted on the Plot Plan (att*mhed). 3, Work, The Builder agrees to provide all labor, materials, tools and equipmen: necessary to construct the House on the Premises in accordance with the Plans and the Specifications dated 21 February, 2000, as mutually agreed upon and identified by the parties, and waich Plans and Specifications are made a part of this Agreement. In the event of a conflict between ff e Plans and the Specifications, the contents of the Specifications shall control and prevail. 4. Contra~I Sum. A. Ampl~rlt. Owner shall pay Builder for all labor, materials, tools, equi >meat and services rendered or which may be required to be rendered pursuant to the Plans and Specifications the sum of One Hundred Seventy-Six Thousand Nine Hundred Five Dollars ($176,905.00) ("Contract Sum"). B Manner of'Payment of the Contract $_u~. The Owner shall pay the C~ntract Sum to the Builder a8 follows: i. At the time of the signing of this Agreement ii. Progress payments in the amounts and at the time enumerated in attached Draw Schedule. iii. Final payment, representing the full unpaid portion of the Contract Sum, and all Changes, credits, extras and costs over Allowances, shall be due and payable at the time of substantial completion and prior to occupancy by the Owner. C larol~ress Payments. Payments shall be due and payable upon receipt ofthe billing from the Builder. Any payment not received by Builder within two (2) weeks shall be considered late ,~,u~;z~q ~/;q± 7]_7-5B8-3445 !JHEAFLa~D CUST?''' HO~ PAGE and be subject to Late Charges as specified in Section 4.F herein. D. Final Payment Final payment constituting the entire unpaid balance o~'the Contract Sum shall be paid to the Builder at tbe time of substantial completion of the work For :he purposes of this Agreement the term "substantial completion'' means the date on which the House is sufficiently complete in accordance with the Plans and the Specit~cations to permit occupancy by the Owner without unreasonable inconvenience, The issuance of an Occupancy Permit by the local municipality wherein the Premises are located shall constitute conclusive proof that substantial comg letion has been achieved. In the event that Owner occupies the House prior to Builder's notification of substantial completion, Owner hereby agrees to be responsible for any required municipal occupancy permits, and also agrees to pay to the Builder the entire unpaid balance of the Contract Sum upon occupancy, E ~nancindt~ This Agreement is contingent upon Owner obtaining financing, upon such terms and conditions as are satisfactory to Owner, and if such financing is not obtained by the Owners on or before 1 April 2000, Owner agrees to emend this date by sixty (60) days and father ~tgrees to authorize Builder to obtain such financing as a reputable mortgage banking institution would qualify the Owner for. In any event, at any time after the financing date specified herein, Builde-, t its sole and exclusive discretion, may terminate this Agreement. F. ~. Any payments not received by the Builder at the times ,pecified herein this Section 4 shall bear interest at the rate of fifteen percent (15%) per annum, compourded monthly. 5. Completion. Oc~uga0c¥. A. ~Commenceme_n~,~mpletion. The Builder shall begin work on or about I0 April 2000 and shall proceed with. Builders scheduling in a prompt and diliget~t manner until t~aal completion Substantial Completion shall be on or about 30 August, 2000. However, the Completi,n date may be extended if Builder's progress is delayed by Owner initiated Changes, Conceded Conditions, strikes, non delivery of materials, or acts of God. In the event the Completion date is exten:led by Builder, Builder shall notify the Owner in writing of the new Completion date within seven (7) days of the event that caused the delay, or a minimum of 30 days prior to the Completion date herein. B. POssession. The Owner shall take possession of the House within ten (10) days of notification by the Builder to the Owner that the House is substantially complete atad after the full Contract Sum has been paid to the Builder Upon notification of substantial completion by the Builder, the Owner will make an inspection of the House with the Builder. Should there be any items of construct/on which according to the Plans and Specifications are unfinished, such items will be noted and the Builder will agree to complete lhem prior to delivery of the House. If any work can not be completed at this time because of weather conditions or other circumstar~ces beyond E u[lder's control and an escrow is required by the lending institution, the total unpaid amount of the Contract Sum, extras, credits and Changes shall be deposited in the escrow account, such account to be held by the lending institution or Builder's legal council, the amount to be held in escrow shall be ecual to Builder's cost to perform the incomplete work and shall be released upon Builder's notification to the escrow account holder that such work ~.s completed At such time the work is completed, Ov.,rer shall arrange for Builder to he paid within ten (10) days, and if not so paid, Owner agrees to pay Builder interest of fiReen per cent (15 %) per annum compounded monthIy on the unpaid amount. 6. Plans and SpeCifications. The Owner acknowledges that they have examined and approved the Plans and the Spe~Lqcations, incorporated herein by reference and has initialed ~uch Plans and Specifications to evidence the Owner's acceptance of such Plans and Specifications. The Owner further acknowledges that the Builder has explained the Plans and Specifications to Owner's full satisfaction. 7. P,,l~anges. Owner may order changes [n the Work consisting ofadd[tions, dele:ions or modifications to the Plans and Specifications. In the event of such changes, the Contract Sum and the time of substantial completion shall be adjusted pursuant to the terms contained herein. All changes in the Work shall be authorized only by written change orders signed by both the Owner ~.nd the Builder. All such changes, including changes to the Contract Sum and/or the time of substantial ~mpletion, may be changed only by change order effectuated in accordance with the procedures churners:eft herein. 8. Selection~. The Builder will provide the Owner with a list enumerating the vaSous selections to be made by the Owner. The Owner will make all such selections according to the dates on the list. If the Builder has not received the Owners selections by the dates on the list, Owner agrees to extend the date for substantial completion accordingly. 9. I_.t~ulation. Pennsylvania Act 22.2 of 1980 sets minimum standards of insulations for new construction, The Owner hereby acknowledges that the Owner has revised the Plans and Specifications and the Owner has satisfied themselves, of the extent to which the Plans and Specifications are or are not in conformity to the standards and the Owner hereby releases and discharges the Bailder from any responsibility, costs, suit or expense resulting from the Plans and/or Specifications being in variance with the standards, it being understood that the Plans and Specifications represent th~ design of the House desired by the Owner and Owner waives unequivocally all remedies available to the Owner for the failure to meet the standards imposed by the aforesaid Act 222 or similar legislation. 10. ]?~111~. Builder makes no warranties, express or implied as to the specific radon level to be found in the House, Owner hereby releases, quit claims and forever discharges Builder, Builder's agents, Builder's employees and subcontractors and any officer or partner or any one ~ them and any person, firm or corporation, who may be liable by or through them for any and all e~dma, losses or demands, including personal injuries and all of the consequences thereof, whether now know or not, which may arise from the presence of radon in any room or portion of the House which is the subject of this Agreement. 11 D~IIty. Builder shall not he held responsible for, and is hereby released from all loss, liability, expense and consequential damages which may result by reason of any delay in completion due to inclement weather, fire. storm of other casualty, strikes, shortages of materials, delays in deI~very of materiaJs, walkouts or other labor disputes affecting Builder or Builder's suppliers of matefal or labor, 85/87/1994 07:41 717-58~-3445 UuEa~LaND CUSTQ~I ~agN PaGB ~5 delay in issuance of permits, acts of war, emergency proclamations, sewer moratoriums, governmental regulations or matters outside of Builder's control, irrespective of the cause, time and extent of' such delay or any other acts or circumstances beyond the control of Builder whatsoever, wether similar or dissimilar to the foregoing. In the event of such delay, Builder may extend the dat~ of substantial completion until such time as substantial completion of the House may bc complete. A. Builder's Warrant~. Providing the Owner meets the provisions of tbs Agreement and subject to the limitations herelnaffer set forth, Builder expressly warrants, in li~a of any other warranties or representations, express or implied, that it will correct any material defects' in the heating, plumbing, air conditioning, electric roofing or major structural systems of the House .hat the Owner shall, by written notice to the Builder, call to the Builder's attention w/thin twelve (121 months of the date of substantial completion, provided that such defects do not result in whole or in part from alterations or other acts performed other than by Bu}lder, acts of God or other causes not directly attributable to the Builder. THE EXPRESS WARRANT~';S CONTAINED I:[EREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR HABITABILITY AND IN NO EVENT SHALL THE BUILDER BE LIABLE FOR CONSEQUENTIAL DAMAGES. BUILDER GIVES NO WARRANTY, EXPRESS OR rM LIED, W T'd RESP2CT TO EXISTENCE OF LEVELS OF RADON GAS OR RADON DAUOHTERS OR ANY OTHER INDOOR AIR POLLUTANTS. B, Exclusions frQrn Bu_ilder'.s Warranty. Specifically and without llmitaticn, no warranty is given with respect to the following: i. Any appliance, component equipment or the like for which the manufacturer thereof issues a separate warranty, except as to Builder's workmanship with respect to the installation of the equipment. Builder shall assign to Owner to the extent assignable all guarantees of warranties extended by the manufacturer with respect to the equipment. ii, All work completed by the owner shall not be covered under the builder's warranty nor shall builder or his subcontractors be held responsible for any liability that may result from said work. iii. Any matters other than those expressly listed in subsection 12.A hereof, relating to the construction of the House, including without limitation, any of the followir.g: a. Nail pops, seam ridges and shrinkage in dry wall, lumbe-, trim, doors, millwork and wood floor. Owner hereby acknowledges that Owner understands and agrees that shrinkage and the results thereof is not an indication of poor workmanship or defective materials and Owner understands and agrees that the repairs therefor are maintenance items and, therefore, the responsibility of the Owner. b. Settling of the House (unless such settling shall cause st'~ctural damage), the presence or absence of earth in and around the foundation, utility trenches or any other excavated areas and filled areas on the Premises, e Cracking, falling away, dripping or discoloration or imperfections in grout, plaster or stucco, prox4ded Builder will regrout cracks exceeding one quarter (1/4) inch in Foundation or basement walls, d. Shrinking or warping of doors less than three eighth (3~8) inches. e. Color variations in fixtures, appliances, stained wood, t. le, brick, mortar or STUCCO. £ Quantity or quality of the growth o£grass. It is the responsibility of the Owner to water, fertilize and reseed as necessary. Any soil washouts fi.om raja er melting snow from the date of' substantial completion are the responsibility of the Owner. g. Absence of dampness or water in the basement, except that if during the period of one year from the date of substantial completion, the basement of the House shall be flooded by reason of free running surface water from outside the House, Builder will undertake to make such repair to the House as shall be reasonably necessary to prevent a reoccurrence cf such flooding during that period from that cause, provided that this provision shall not apply to floodiag which results From (a) a change of the grading or hl the foundation plantings around the House nc~ caused by the Builder (b) flood conditions, cloud bursts, flash floods, unusually long freezing spells with snow and subsequent quick thawing or similar wet conditions or (c) any cause that is not dae to faulty or defective construction. As a condition of BuiWer's obligation hereunder, Owner agrees to maintain the grade of lot finished by Builder, to maintain and keep clean the gutters, down spouts and splash blocks. Owner ~rther agrees not to build any stone, concrete or other garden edging, brick, stone or concrete terrace or retaining wall, or any other structure on the Premises which will pocket water or in any way change Builder's grading or block the natural flow of water in any particular way. h Any defect or problem in the House, or the Premises reggdless of cause or effect, not brought to the attention of the Builder by written notice receivec by the Builder within twelve (12) months of the date of substantial completion. D Water System. i. If Builder is to install service laterals connecting the House water system to a public system, Builder agrees to do such connection in a workman like manner, such as meets the municipal specifications. Builder gives no warranty, express or implied, as to the sufficiency of the amount, pressure or the purity of water available at the Premises, E~ Limitation of Build~r's Liability. Owner agrees that Builder shall not be responsible or liable ~or any damage to mechanical equipment, personal property of any other materials stored in the basement or elsewhere in the House resulting From any of the foregoing conditions, it being understood that the maximum llab~lity of' Builder under this warranty shall be the replacement ~r repair of the defective portion o17 the House In no event shall the Builder be liable for special ca- consequential damages or personal injuries arising from any breach el~ tWs warranty or of this Agreement. Builder shall have the sole right to determine whether the defect shall be corrected by repair ~r replacement. 717-568-3445 MHE&TLAND CUSTOM ~©~ ~GE 87 The warranty shall not apply to the defective portion of the Mouse that has been subject to misuse or damage by accident or has not been afforded reasonable care. 13. ~. Builder will procure and keep in effect worker's compensation and general liability insurances in sufficient sums and with reliable carders and will, upol~ request of':)wner, provide certification of such coverage. Owner agrees to maintain during the progress of the Work and at all times prior t~ full payment to the Builder at Owners cost an all risk builders risk insurance policy, including extended and vandalism coverage in an amount of not less than the Contract Sum. Owner will deliver to Builder a copy of said policy before constmctlon begins. Builder and Owner shall be named as insured, as their interests may appear, on all such policies. It is understood that the Owner bears the complete risk of loss due to fire, storm or other casualty including v~mdalism As a result the Owner shall be solely responsible in the event any loss is not covered by insurance or if the ,amount of insurance is not adequate to fully cover all of the costs resulting from any such loss including the cos: of demolition, removal and reconstruction. 14. Construction Site. The Work in every respect from the time of the signing afthis Agreement, to the final acceptance, shall be under the charge of the Builder. Owner hereby acknowledges that the Owner is aware that the Premises, during the progress of the Work, constitutes a dangerous area. Any visits by the Owner or his representative or agent to the Premises during the progress of the Work shall be done at the Owner's sole risk and the Owner agrees to hold harmless and indemnify the Builder from any loss, expense (including attorney's fees), suit or cause of action resulting from any damage or injury, personal injury of death suffered by the Owner, Owner's ~gents, invitees, licensees, guests or employees. Owner shall not in any event during the progress of the Work disturb or directly contact any of Builder's subcontractors or employees but shall direct all co~nmunieation to Builder's designated representative. 15. Sign. Builder shall have the right to place upon the Premises Builder's sign acting Builder's presence on the Premises. Such sign shall be removed at the time the Owner certifies :he achievement of substantial completion. 16, Arbitration, All claims, disputes and other matters in question between the Owner and the Builder arising out of or relating to this Agreement of the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitratior~ Rules of the American gsbitradon Association then obtaining unless the parties mutually agree otherwise, 17. Assignment. This Agreement may not be assigned by the Builder or the Owner without the express written consent of the other. Notwithstanding the preceding, this Agreement shall be binding upon the respective heirs, executors, administrators and successors (to the ¢xte,,t assignable in 87:41 717-56~-3445 ~E~'[_z~ND CUSTOM accordance with the terms contained herein), This Agreement is to be construed in accordance w~th thc laws of the Commonwealth of Pennsylvania 18 Work Stoppage Builder shall have no obligation to commence Work prior to Owners payment of the Deposit to the Builder in accordance with subsection 4B hereof, Bui der's receipt of evidence satisfactory to Builder of financing for the Home in accordance with subset ion 4.E hereof, and Builder's receipt of all permits necessary to commence construction, Builder may discontinue the performance of the Work at any time if(a) any progress payments are not received when due pursuant to attached Draw Schedule or (b) a Builder inltiatec change order is not approved by the Owner within five (5) days of Owner's receipt of such a change order. Any payment not received by the Builder by the date due accordithg to the terms contained herein shall bear interest at the rate of fi/~een percent (15%) per annum compounded monthly. If Builder either fails to commence or discontinues the Work for any of the foregoing reasons, the date of substantial completion shall be extended accordingly. 19. D..~fault. If either the Owner or Builder defaults in the performance of their obligations hereunder, in addition to the remedies set forth in Section 18 hereof, the aggrieved party may pursue any remedy available at law or in equity. 20. Miscellaneous. A g/ALYAr. If in any situation the Builder waives the strict performance according to the terms contained herein, such waiver shall apply to that instance only and shall not ~e deemed as a continuing waiver nor shall it prohibit the Builder from requiring strict performance in accordance with this Agreement at all times thereafter. B..C, apli~5. The captions of the sections noted herein are used for eon-enience only, and such captions do not in any manner alter, modify, restrict and/or expand the provisit)ns contained in any given section. C. Amendments. This Agreement may not be modified or amended except in writing signed by both of the parties hereto or by a duly authorized change order approved in ~ceordance with the terms contained herein, D. Notices. Ail notices required herein shall be sent by regular mail, ant shall be deemed received by the addressee two (2) days at, er mailing. All notices shall be sent to the Builder and the Owner at the addresses noted in Section I hereof E Exhibits. The Following Exhibits are attached hereto and made a par. hereof: Site plan depicting location of the House Plans and Specifications Draw Schedule 87:41 7i7-568-3445 8HE~3Lar~D CUSTO~ HDP PAGE IN WITNESS WHEREOF, the Owner has set his/her hand and seal this __ day of February, 2000. WITNESS: OWNER: 1N WITNESS WHEREOF, Builder hereby approves this Agreement this __ day of February, 2000, ATTEST: ~(~~ /'WHEATLA~ cUsToM HoMEs, INC, yack MA rm, rREsm r WHEA TL. AND CUSTOM HOMES D~WSC~D~E Contract Amount: $176,905 DRAW AMOUNT DESCRIPTION DAT~'~ //i 20% Due upon completion of foundation and subfloors 3-4 a eeks #2 #3 25% 35% ~4 20% Due upon completion of structural framing, i.e.. weather dry roof Due upon installation ofmechanlcal rough ins, insulation, and drywall Due upon substantial completion or occupancy, whichever first occurs 6-8 weeks 10-I~ weeks NOTES Change orders must be signed prior to making any changes, Payment for any ch, nge orders not required at time ofthe change shall be due per the stone terms and conditions as final payment, Allowances are not adjusted until final payment, First draw includes credit for the Deposit paid under Section 4.B. ,,~a~ATLAND CUSTOM HOMES, 1NC RICK MARTIN, PRESIDENT ~,~z~ g/;q~ t17-560-3445 ~HEAT[_A~? CUSTO~ HCM P~GE il 30- Oct. 2000 COST SHEET LARRY AND DEB JACKSON FEB 1 PRICING FEB 19 PRICING LARGER DECK GARAGE ATTIC ROUGH IN GARAGE ATTIC DORMERS GARAGE ATTIC HEAT ROUGH IN ADD ONE GARAGE GABLE WINDOW MASTER BED WINDOW vs. GARAGE DOOR 6' WHIRLPOOL TRIM AND DRYWALL GARAGE ATTIC (PAINT AND FLOOR BY OWNER) BRICK STOOP BRICK ON STONE DUST WALK ADD 3 FIRST FLOOR WINDOWS GARAGE DOOR OPENERS CONTRACT AMOUNT APRIL J ADDS JUNE ~ ADDS JUNE??ADDS GARAGE SHED DORMER vs. FRONT DORMERS FINtSHING DORMER INTERIOR ADD POWDER ROOM WINDOW DINING ROOM BAY GARAGE HEAVIER STEEL vs. COLUMN ADD GARAGE WINDOW ADD LAUNDRY WINDOW ADD BONUS ROOM WALK IN CLOSET LAUNDRY CHANGE DELETE ANGLE BAY, ADD TRIPLE WINDOW GARAGE FLOOR DRAINS UNDERGROUND DOWNSPOUTS .REAF; REDRAW PLANS FOR LOT 305 9' vs. B' BASEMENT WALLS 5~ ADDITIONAL SET BACK WATER SOFTNER ( ~ MY COST ) BYPASS LINES FOR SINK, EXTERIOR GAS RANGE AND DRYER HOOK UPS BACKFILL DECK POSTS W/STONES JULY 5 JULY 21 REVERSE HOUSE · DEEPER GARAGE WALLS · EXTF~A GRADING UNDERGROUND DOWNSPOUTS, FRONT UNFINISHED FRONT DORMERS EXTEND GARAGE ATTIC DORMER 5~ 1,000 250 285 0 200 3,100 240 0 930 1,400 1,600 310 1,280 125 310 310 30O 0 (970) 200 275 500 500 0 849 {55 0 0 300 20o 850 0 $176,905 TIMBERLINE MAPLE CABINETS, CATHEDRAL SWAN,STONE KITCHEN SINK. SAND FAUCET APPLIANCES BY OWNER ELECTRICAL ADDS', 4 CEILING FAN R I's 2 DORMER RECEPTS, SWITCH 2 nd MASTER BED PHONE 3 TV OUTLETS I FRONT PORCH LIGHT OUTLET UPGRADED KITCHEN HARDWARE DINING ROOM CROWN MOLD BONUS ROOM FLOORING BONUS ROOM PAINTING FLOORING LIGHT FIXTURES 2O0 75 ~20 ALLOWANCE 1,000 RECESSED 400 YALE ~TQ MIRRORS, SHELVING KITCHEN SINK FAUCET BY OWNER SMALLER DECK L.ARBOR TO INSTALL 2 CLOSET DOOR SW[TCHS CHANGE FIREPLACE MANTLE TOTAL HOUSE COST NOTES; 450 230 (1,200) 410 105 N/C ???? ???? 0 370 24 (200) (500) 60 $]85,508 ,~/OV -08' OOiW?,D] 15:00 ADLS~ ~ CLA}b'~VAL ESCR. OW AGREEMENT This agreement is entered into this i~'~ day of November, 2000, between Larry' Jackson and Deborah Jackson, his wife (hereinat%r known ~ "Buyers") and Wheatland Custom Homes, Inc. (hereinafter known as "Serial') WI~KEA~, Buyers and Builder entered into a construction contract for Lot 302, Dove R~dge, Cumberland County, -PA, for Builder to constant: a home for Buyers in February of 2000', and WHEP,~AS, Buyers are ready to complete settlement and convert the construction loan to pern~lent financing; and WHEREAS. some items in the home need to be repaired or touched up; and WIffEKEAS, the parties to this agreement have agreed to have William L Adler hold ~nds ir, escrow until said work is completed. NOW THEREFORE, intending to be legally bound hereby, the parties agree as follows; Mortgagee shall hold $5,250.00 until the seeding and driveway ge completed in the spring of 2001, at which time these funds will be released to Builder upon comn etlon of grading and s~ding. William L. Adler, E<uire, shall hoid $13,655.00 in escrow whioh shall be released Bt~ilder purmant lo the schedule ~t forth in the punch list agreement of this date A final punoh list has been established as of November 8, 2000, by Buyers Thi~ will be the final list govetmng thi~ escrow. Warranty items will still be honored by Builder, but fiands will not be held in escrow for those items. Builder will be given the opportunity to perform the work before having an inspector review ~t. In the event that Builder considers that the required work on the punch list has been completed, Buyers may examine the work relative to the completed items and if satisfied with the work, may issue a written waiver et'inspection by an inspector chosen in connection with paragraph $ herein, as to any one of;he three phases et'wot!e. The written waiver shall authorize release of the pertinent draw then due. The t~se by Buyers of one or more of tach waivers, shall not prejudice Buyer's fu~l rights to exercise the procedures set forth in this Agreement. Certification that these item~ have been completed in accordance with acceptable residential building standards in the industry in this area shill be certified by a building inspector mutually agreed upon by Builder and Buyers if'Builder and Buyers have not agreed otherwise as set forth in p~ragraph 4 No conference8 or contac; may be had with said inspector unless all parti~ are included in said conversations. This may require xwo or three inspections, which cost will be shared equally between Buyers and Builder, E~CROW AG-REEMENT TE~:717 2341fi~70 This agreement is entered into this; 11'~ day of November, 2000, between Larry Jackson and Deborah Jac~ork his wife (hereina~er known ~ "Buyers") and Wheatland Custom Homes, hie. (hereinafter known as "Seller") WFT~REAS, Buyers and Builder entered into a con,traction contract for Lot 302, Dove Ridge, Cumberland County. PA, for Builder to construe*, a home for Buy,rs in February of 2000: and WT-IER.EAS, Buyers are ready to complete settlement and convert the construction icon to permanent financing; and WHEJt. EAS. ~ome items in the }tome need lo be repaired or touched up; and WH~RE,a,S, the patties to this agreement have agreed to have William L Adler hold finds h', e~crow until ,aid work is completed. NOW TI-iEREFORE, intending to be legally bound hereby, the parties agree as tbllows: Mortgagee ~ball hold $5,250.00 until the seeding and driveway are completed in the spring of 2001, at which time these funds will be released to Builder upon completion of grading and seeding. William L. Adler, E~uir0, shall hoid $13,655.00 in escrow which shall be released Bt!ilder pursuant to the s~},edule set forth in the punch list agreement of this date A final punch list has been established as of November g, 2000, by Buyers This will be the final list govermng thi~ escrow. Warranty items will still be ho~ored by Builder, Iiands will not be held in escrow for those items. Builder will ba given the opportunity to per~orm the work before having an inspector review it. In the event that Builder considers that the required work on the punct~ list has been completed, Buyers may examine thc work relative to the completed i~ems and if satisfied with the work, may issue a written waiver ofh~pection by sn insp0ctor chosen in connection with paragraph 5 herein, as to any one of the three phases ofwor[<. Thc wr/tlen waiver shall authorize release of the pertinent draw then due. The rise by Buyers of one or more of such waNere, shall not prejudice Buyer's full rights to exercise the procedures set forth in this Agreement. Certification thai these items have been completed in accordance with acceptable residential building stmqdnrds in the industry in this area shall b~ certified by a building inspector mutually agreed upon by Builder and Buyers if'Builder and Buyers have not agreed otherwise as set forth in paragraph 4 No conferences or contact may be had w~th said inspector unless all parties are included itl said conversations. This may require ~wo or three inspections, which cost will be shared equally between Buyers and Builder. .a41670 Unless the Jasper-tot determines that the work of Builder to be performed does not meet acceptable building standards in this area, the work will be acceptable and the escrows paid to Builder in accord/mca with the above, The inspector will bc the final arbitrator as to lhe azccptabillty of'the work of Builder. IT he or she signs off on certain worm or determines that work requested }s above and beyond acceptable building standards ~ set forth above, and this is communicated in writing to William L. Adler, the ~nds as set forth above may be released by William L. Adler to Builder 7 All work required under this agra*meat, but for seeding and driveway, will be completed by Builder within 45 days from the date of this agreement mbjeca to availability of materials, in the event it is not completed by that date subject to availability o£matedals, and the parties cannot agree on what remaining items must be repaired or replaced, either party may file suit in the Court of Common PleaJ_~f Cumberland County to have this matter d,termined. " d . lartin, ro~d ni, Wheatland Cus:om Homes, lac. Larry Jacksc-ff" / Deborah Jackson William L. Adler, Escrow Agent REVISED PUNCH LIST AGREEMENT NOW COME Larry and Deborah Jackson, hereinafter referred to as" Buyers" and Wheatland Builders by and through Rick Martin hereinafter referred to as "Builder" agree as follows: Builder agrees to repair, restore and install all of the following listed items to the full satisfaction of Buyers. No draw will be released by Buyers until Builder signs this agreement. When Builder signs this Agreement, a draw in the amount of $ 58,500 will be authorized to be released and the balance remaining of the $77,405 check from Vartran Bank for the construction loan pay-off shall be placed in Attorney William Adler's Attorney's Escrow Account. Buyers will pay Builder $9,734.00. Builder will pay the additional one-quarter point or $549 due to the mortgagee as an increase in points from the necessity of having to extend the completion and closing of this home sale beyond the November 3 expiration of the financing commitment prior to the "Re-Lock" approved by Roslyn National Mortgage. Builder assures Buyers that he has reviewed this "punch list" and that he agrees to repair, restore and install all of the following listed items to the full satisfaction of Buyers unless the parties cannot agree on a particular item, in which case an independent inspection is required under this agreement and the accompanying Escrow Agreement. Buyers agree that once closing is held Buyers will completely move into the house and set up all their rooms. Builder will have the responsibility to communicate their schedules to Buyers and Buyers will do every thing they can to accommodate the workers (Clearing rooms, moving furniture, etc.) The phrase "full satisfaction" shall mean Buyer's acceptance of work to be done to correct all defects whether structural or cosmetic that may exist at 6202 Croft:on Court, Mechanicsburg, PA (Lot 305, Dove Ridge). These defects include all those items more particularly set forth in this agreement and that certain Escrow Agreement so that Buyers accept the work as complete with the understanding that this is a new house and items that are not right, or repaired will be fully corrected. Items installed should not only be new but look new. This is not to be deemed to be the refurbishing of an Old house; all repairs and subsequent damage to the adjacent areas must be corrected properly in keeping with the Punch List herein. Due to the price 6fthe home being purchased from Builder, it is understood that the ~,orkmanship shall be restored to quality standards befitting a home in this price range. In the event Builder is aware of additional defects not specified herein, such as any structural defect in the garage wall, as an example, or should he become aware of such a defect, he agrees to fully repair the defect so that it is permanently corrected. FINAL PUNCH LIST The following items must be corrected to the Buyer's satisfaction prior to release of the funds to be escrowed by William Adler. Items 1, 22 and 33 on the "Punch List Agreement" are to be fully performed to Buyer's satisfaction prior to the release of the first $5000 of the Escrow. Items 2, 8, 9, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 28, 29, 36, 37 and 38 on the "Punch List Agreement" are to be fully performed to Buyer's satisfaction prior to the release of the second $5000 and items 3, 4, 10, 12, 34, 35, and 40 on the "Punch List Agreement" are to be fully performed to Buyer's satisfaction prior to release of the third $3655 draw set forth in the Escrow Agreement for an escrow by Attorney William Adler. Builder agrees to supply Buyers with a new costs sheet so that adjustments can be made between the Buyers and the Builder prior to remaining draws. 1. The bowed or concave wall in the garage will be straightened by replacement of studs or other structural repair. All 4 x 80SB wall boards should be removed versus cutting them out, to allow a more effective and even rePlacement of these boards resulting in a straighter appearing wall. 2. Painting: Buyer will use post it notes to mark areas which have not yet been painted properly, supplied by tbe builder. Additionally, there many trim pieces that are cracked at the finger joints or elsewhere. Also, the touch up paint does not appear to match the original paint color in certain areas, especially in the master bedroom. The stair railing is to be touched up. 3. Unless otherwise agreed due to weather conditions, prior to March 30, 2001, per our verbal discussion, the sidewalk is to be repaired. However, the concrete should have used concrete :from an actual load. It appears to be a concrete patch product of inferior quality (bondex). The repair is not level with the surrounding surface and is not completely covering the area knocked out. Additionally, it is of different color and consistency of the poured walk. Per our verbal conversation if this does not make it through the winter, the entire area will be replaced. 4. The curb will be corrected as we discussed with an expansion joint installed. Builder will correct the gap of significant size at the other expansion joint. 5. This item was stricken per the verbal discussion on November 8, 2000. 6. This item was stricken, due to being covered by the mortgagee's escrow, this Agreement and the parties' Escrow Agreement. 7. This item was stricken per the verbal discussion on November 8, 2000. 8. Various strike/guide plates are to be installed on the doors indicated on our walk-through with the attorneys including the master double door and the rear garage doors where the sliding locks go into the doorjambs. 9. The pop-up drains used in the whirlpool and the kid's bath need to be replaced. Reaching through 18 inches of water to release a drain seems inappropriate. A mechanical drain should be installed in these areas, befitting a house of this caliber. Builder is requesting a new tub from Aqua Glass and on the new tub the drain will be switched to a mechanical drain plug as requested by Buyer. Builder confirms that Aqua Glass should have no problem replacing the tub without charge to Buyers. The kids' bath drains will not be replaced if this requires removing the tub or wall finish. 10. The window handle for the master baih casement window is missing, and has been for some time. Please replace with the identical match. 11. Them are still a few holes in the garage drywall as a result of the first garage pad being taken out. Per our conversation we paid for a garage that was to have drywall installed and semi-mady for paint (semi-ready should mean final sanding and touch-up). 12. Secure floor areas which have creaks especially in the dinette area. ( Other areas of concern are in, but not limited too the dinette area, area by the thermostat, about 10 feet in front of the fireplace, between the living room and dinette, the stairs, and the upper hallway, and the bonus room floor in several locations, the largest in the small area where the roof slants). These need to be identified and repaired properly. Builder will use his best efforts. 14. The ~im by the basement walkout doors that was damaged by the soil application was not fixed but ~immed off and then replaced with a jointer piece. The whole piece needs replaced. 15. These is an excess amount of putty/sealant on the sidelight right of the front door on the lower left-hand comer. These need to be trimmed and painted properly. 16. The brick headers above the windows have not been painted and weather sealed. The widows also do have chalking around them. 17. The interior window latches are to be made uniform so that every window looks the same. 18. Parts that need to be replaced: Additionally, there are many seals, window handles, and other pieces (screens) the need to be installed. Per the window manufacture they verbally informed and E-mailed me the correct way they should operate. Also, we need to address the problem of the windows that do not line up with each other. Also the painter need to re-install the window insulation they removed for painting purposes. 19. The water pipes on the water softener appear used. They are very, very dirty. Builder will clean the water pipes. 20. Correct the BIG DING on the front door steps. This is located on the first step, on the left-hand side, near the end. Additionally, the ding that was there from day one is still not corrected, on the forth step as shown during our walk-through. 21. The foyer window needs work. Someone did not repair the marks left when the window ledge was used to support a board for the worker to use. Additionally the drywall around the bottom of the windows needs work. 22. Install the Glass door in the shower. 23. This item was stricken per the verbal discussion on November 8, 2000. 24. The drywall repairs under the phone jack and electrical box are in need of professional drywall work. They are both convex (sticking out) and are poorly painted. These needs repaired so the wall is straight looks good when compared to the back splash lines. 25. Correct the seal on the rear entry door. All area of the seal should compress around the door evenly. 26. Clean the mud on the basement floor. 27. The Builder removed this item regarding leveling the water connector to the water meter. 28. Level the kitchen counters and the bathroom counters. 29. Correct the gutters which had many holes in the support band and other areas. 30. We had the whole house water softened - therefore the $65 change is not applicable. 3 I. Builder will ensure that no copies of these exterior door keys should exist anywhere else, but with the homeowners. 32. We paid for light bulbs with each fixture, but, we are missing the rear porch light, one front porch light. 33. The HVAC return panning under the leak in the powder room is was totally wet and I have removed it and proper replacement by stapling to the joist and under the conditioned airflow duct. 34. Builder will level the whirlpool tub. All damage incurred around during the repair job is expected to be repaired to a level fitting a new home. 35. There is a bleach stain in the hallway. This section of carpeting will be replaced. 36. Clean up paint overspray at the front and rear doors. 37. Fix the garage floor errors. 38. Install a kick plate missing from the right hand side of the desk area in the kitchen. 39. Doors that stick will be corrected. The rest of this item was stricken per the verbal discussion on November 8, 2000. Painter will donate the paint for Buyer to paint the unpainted surfaces on the doors. 40. The white, unmatching mortar in the bricks on the front of the home shall be made a uniform shade or color with the rest of the brick mortar if this can be done at reasonable expense to Builder and will result in a better product. In the event grading, seeding and driveway for the home cannot be completed by March 30, 2001 due to weather conditions and Roslyn National Mortgage chooses to release its $5,250 Escrow for these items, the parties agree that the mortgagee's escrow fund shall then be held in escrow by Attorney William Adler pending completion and approval of these items by Buyers. Builder certifies that he has read this list and this agreement and that he agrees that each of these listed items will be fully repaired, restored and corrected as befits the home of the caliber intended by the pricing and location of this home subjectt~hec°nditi°n~'TftheEscr°wAgreement'/_~, ~/ ~/~2_ BY://///'~/~/ Dated: fl/ Wheatland Homes Rick Martin Larry Jackg~n, Buyd~ Deborah Jackson, Buyer ~ SHERIFF'S RETURN CASE NO: 2001-02183 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHEATLAND CUSTOM HOMES INC VS JACKSON LARRY ET AL - REGULAR BRIAN M. BARRICK Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within COMPLAINT'& NOTICE was served upon JACKSON LARRY DEPENDANT , at 1943:00 HOURS, at 6202 CROFTON COURT MECHAiNICSBURG, PA 17050 LARRY JACKSON a true on the 19th day of April by handing to the and attested copy of COMPLAINT & NOTICE together with law, 2001 and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.44 Affidavit .00 Surcharge 10.00 .00 35.44 Sworn and Subscribed to before me this ,~$-~ day of kJ , P~othono:ary / / So Answers: R. Thomas Kline 04/20/2001 WILLIAM ADLER /~ By: ~~h~ ~ Deputy S eriff SHERIFF'S CASE NO: 2001-02183 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHEATLAND CUSTOM HOMES INC VS JACKSON LARRY ET AL RETURN - REGULAR BRIAN M. BARRICK Cumberland County, Pennsylvania, says, the within COMPLAINT'& NOTICE was served upon JACKSON DEBORAH DEFENDANT , at 1943:00 HOURS, on the 19th day of April at 6202 CROPTON COURT MECHANICSBURG, PA 17050 DEBO}%AH JACKSON a true Sheriff or Deputy Sheriff of who being duly sworn according to by handing to and attested copy of COMPLAINT & NOTICE the together with law, 2001 and at the same time direcsing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this day of So Answers: mo Thomas Kline 0~/20/2001 WILLIAM L. ADLER WHEATLAND CUSTOM HOMES, INC, Plaintiff V. LARRY JACKSON AND DEBORAH JACKSON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: 01-2183 PRAECIPE Dear Prothonotary: Please mark the above case settled and discontinued with prejudice. Thank you. ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 October 25, 2001