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Home My WebLink About02-0245POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attomeys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, Vo BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY NO.v 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 this complaint and notice are served by entering a written appearance personally, or by an attorney, and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that ifyou 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 claim or relief requested by the defendant. 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 HB:43359v1 4116-01 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando em la Corte por escrito sus defensas de, y obj ecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamation o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date: January 16, 2002 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. Anthony S. Potter I.D. #75903 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Attorneys for Oakwood Custom Homes, Inc. HB:43359v1 4116-01 2 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. ~ COMPLAINT AND NOW, Oakwood Custom Homes, Inc., by and through its undersigned counsel, files this Complaint seeking specific performance of a November 15, 2001 agreement for the transfer of a parcel of real property located at 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania, and in support thereof avers as follows: 1. Plaintiff is Oakwood Custom Homes, Inc. ("Oakwood") a Pennsylvania Corporation with offices located at P.O. Box 358, Mount Joy, Pennsylvania that, among other things, builds custom homes. 2. The defendant is Beverly A. Grindley-Griffith ("Grindley") an adult individual who upon information and belief resides at 58 South Corporation Street, Newville, Pennnsylvania 17241 and also has an address listed as PO Box 1394, Carlisle, Pennsylvania 17013-6394. 3. Grindley was and still is the owner of the premises known as 36 Watson Drive, in the HB:43305v1 4116-01 Township of West Pennsboro, in the County of Cumberland, Pennsylvania ("property"). 4. On Thursday, November 15, 2001, plaintiff and defendant engaged in mediation of several claims between the parties relating to improvements and construction that occurred on the property. 5. At the mediation, Grindley was represented by Peter J. Russo, Esquire ("Russo") and Oakwood was represented by C. Grainger Bowman ("Bowman"). 6. At the conclusion of the mediation, Grindley and Oakwood entered into a four page written settlement agreement dated November 15, 2001 in the form of a memorandum of understanding ("agreement"). The agreement was executed and initialed by Beverly Grindley on each and every page, signed by Attorney Russo as a witness, executed and initialed by the President of Oakwood on every page, and signed by Bowman as a witness. (A copy of this agreement is attached as Exhibit "A" to the copy of the Complaint served upon Defendant and is incorporated by reference into this complaint. Because the agreement contains a confidentiality clause prohibiting either party from disclosing the terms of the settlement, the agreement is deliberately excluded from the copy of the Complaint filed with the Prothonotary of Cumberland County. Upon order of the Court, however, a tree and correct copy of the executed agreement will be made available for in camera review.) 7. In the written agreement, Grindley agreed to transfer title to the real property located at 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania to Oakwood by special warranty deed, free and clear of all liens and encumbrances. 8. Under the terms of the agreement closing was to occur on or before December 31, 2001. HB:43305v1 4116-01 2 9. The agreement required Grindley to give Oakwood two weeks advance notice of the precise date for the closing. Grindley failed to provide Oakwood notice of the closing date in accordance with the 10. agreement. 11. Sometime after entering into the agreement with Oakwood, Grindley retained Christopher T. Restak, Esquire ("Restak") as counsel for the matters that were settled by the November 15, 2001 agreement. (A copy of a December 10, 2001 letter from Restak to Bowman is attached as Exhibit "B" and is incorporated by reference into this complaint.) 12. On Monday, December 17, 2001, Oakwood sent a Notice of Closing to Grindley scheduling the closing for 10:00 a.m. on December 31, 2001 at the law offices of Peter Russo. (The Notice of Closing was sent by counsel for Oakwood to Grindley, Attorney Russo, and Attorney Restak. A copy of the December 17, 2001 Notice of Closing is attached as Exhibit "C" and is incorporated by reference into this complaint.) 13. On December 17, 2001, Oakwood also sent a separate letter to Attorney Restak reiterating that Oakwood did not wish to renegotiate the terms of the agreement and enclosing a copy of the Notice of Closing. (A copy of the December 17, 2001 letter is attached as Exhibit "D" and is incorporated by reference into this complaint.) 14. On December 19, 2001, Oakwood in accordance with the agreement faxed a certificate of liability insurance naming Grindley as an additional insured to Attorney Restak. (A copy of the December 19, 2001 fax transmission along with the Certificate of Liability Insurance is attached hereto as Exhibit "E" and is incorporated by reference.) HB:43305v1 4116-01 3 15. On December 24, 2001, Oakwood by and through its attorney spoke with both Attorney Restak and Attorney Russo advising them that Oakwood intended to appear at the real estate closing scheduled for December 31, 2001 in order to perform the terms of the agreement. 16. By letter dated December 27, 2001, Grindley, by and through Attorney Restak, informed Oakwood that Grindley would not attend settlement because the agreement "does not address her concerns, nor her financial exposure in this case...." (A copy of the December 27, 2001 letter is attached as Exhibit "F" and is incorporated by reference.) 17. On December 28, 2001, Grindley by and through her counsel, sent a facsimile transmission repeating that she would not attend the settlement on December 31, 2001. (A copy of the December 28, 2001 fax is attached as Exhibit "G" and is incorporated by reference.) 18. On December 28, 2001, Oakwood sent a letter to Attorney Restak noting that Grindley's refusal to perform in accordance with the terms of the agreement constitutes a material breach and indicating that Oakwood is ready, willing and able to perform the terms of the agreement. Moreover, the December 28, 2001 letter indicated that Oakwood intended to seek specific performance of the agreement. (A copy of the December 28, 2001 letter is attached as Exhibit "H" and is incorporated by reference.) 19. On December 28, 2001, Oakwood sent a letter to Attorney Russo noting that the settlement scheduled for December 31, 2001 was cancelled by Grindley and reiterating that Oakwood was ready, willing and able to perform the terms of the agreement. In addition, the letter indicated that Oakwood would seek specific performance of the agreement. (A copy of the December 28, 2001 letter is attached as Exhibit 'T' and is incorporated by reference.) HB:43305v1 4116-01 4 20. Oakwood, by its attorney, has made tender in the aforesaid manner upon Grindley through her attorneys. 21. The aforementioned tenders were refused by Grindley. 22. Oakwood's tenders were refused because of Grindley's apparent erroneous belief that the agreement she executed on November 15, 2001 with the advice of counsel is not binding. 23. The November 15, 2001 agreement entered into between Oaknvood and Grindley provides that time is of the essence. 24. Oakwood was and still is ready, willing, and able to make settlement and complete the transfer of the property in accordance with the terms of said agreement, but Grindley has refused and still refuses to carry out the said agreement or to sign, execute, and deliver the special warranty deed for said property as contemplated by the agreement. 25. Oakwood has satisfied all conditions precedent to bringing this action. 26. Upon information and belief, Grindley has a mortgage on the property with National City Mortgage. 27. Upon information and belief, National City Mortgage has filed a mortgage foreclosure action against Grindley in this Court and said action is docketed at 01-1586. 28. Upon information and belief, the amount of consideration promised by Oakwood in the November 15, 2001 agreement is more than sufficient to satisfy the amount of Grindley's mortgage. WHEREFORE, Oakwood Custom Homes, Inc., needing equitable relief, respectfully requests that this Honorable Court decree and direct Beverly A. Grindley-Griffith as follows: 1. That the defendant, Beverly A. Grindley-Griffith, be enjoined and restrained HB:43305v1 4116-01 5 temporarily until final hearing and permanently thereafter from conveying, selling, encumbering, or transferring the premises known as 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania. 2. That upon the payment of the consideration identified in the Memorandum of Understanding, defendant, Beverly A. Grindley-Griffith, be ordered to provide clear title to the property by special warranty deed, free and clear of all liens and encumbrances backed by an attorney certificate and that clear title to the property be provided no later than April 30, 2002. 3. That such other and further relief that the Court deems appropriate be granted including costs, penalties, and attorneys fees and any other relief as permitted by law. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By C~' <~ ~~-- C. Grai~er Bowman I.D. g~I/5706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: January 16, 2002 HB:43305v1 4116-01 6 EXHIBIT "A" [Deliberately Excluded as per Paragraph 6.] FROM : GROUP HANOUER, INC PHONE NO, : ?17 633 9143 Dec. 04 2001 12:12PM P2 CIIRISTOPIIER RESTAK ATTORNEY AY LAW 213 CaHislc SI~c{. Ifa,myer, I'A 1733 J-2410 Phone: 717-637-5 IRS · Fax: ? 17.&~.3-9143 * ~;xRti[: otrc~tak~ltetvnx.tlct December l0,2001 By Faesimilg: (717) 238-932S Original by mail. Cnainger Bowman, Esq. Powell, Trachtman, Logan, PC 114 North Seeond Street Harrisburg, PA 17101 RE: Beverly Orindley Griffith and Oakwood Custom Homes Dear Attorney Bowman: I wanted to, flmnk you for the time that you spent speaking with me on Thursday. You made it clear that your client considers the arrangement with Beverly as final and binding and that you .would vigorously oppose anyone looking to "upset" that agreement. I appreciate your candor and want to assure you that I am not out to achieve that objective, to an upset any agreement that was rendered in good faith and with benefit of counsel. I do intend however, to satisfy my client's request that I look into the particulars of the arrangement th0X. she understood she was agreeing to on November 18 and to assist her in achieving that objective. I have spoken with Attorney Peter Russo, who represented Beverly at the Mediation Hearing, and was gratified by his apparent cordiality and willingness to explain to me how the meeting was conducted. Peter was also candid in his position that he would not care to represent Beverly in case she opted to rescind the agreement. ! am including a copy of the brief note that I sent to Peter, following our conversation, so that you can appreciate the limited extent to which we have been able to discuss the matter. I'wanted to outline some of the issues that my client has with the proposed mediation settlement, between herself and your client, Oakwood Custom Homes (Oakwood), in the hope that we can resolve what issues appear to remain open with that settlement. The referenced mediation hearing took place on November lg, 2001, resulting in a hand written Memorandum of Understanding (Memo) between the two prospective parties, Grindley and Oakwood, concerning the resolution of a construction contract agreement FROM : GROUP HANOUER, INC PHONE NO. : 717 633 9143 Dec. 04 2001 12:12PM P3 that both sides had entered into on or about February 15, 1999. Given the long history of documented ctnstruction defects that Oakwood appears to have been responsible for and the fact that the agreement contemplates a confidentiality component, whereby Beverly (and/or her agents) is prevented from discussing its particulars, she is left in a rather untenable position regarding any future prospects for building a home. I was able to speak with Steve Yingst, a structural engineering consultant, retained by Beverly, and have read his repons. I was duly impressed by his rather lengthy recitation of significant con,auction defects. The type defects that Yingst identified are defects thai should not be asseciateA with such a relatively simple project. I think thai one can fully appreciate Mrs. Grindlcy's reluctance to remnln mum about the negotiations and the events preceding the mediation hearing. The amount of the settlement, one reached after a marathon session of complex negotiations and scribed by informal addenda, will not begin to compensate Beverly for the loss of the real estate that she is a~_~ked to abandon. Furthemiore, she is asked to relinquish her site to the very party who purportedly is solely responsible for its current, non-saleable condition. Beverly never understood this to be the case, and claims that whatever complacent role she was asked to adopt, may have simply been thc result of apparent overreaching on the part of a mediator who was understandably fru~iiated with the length of time devoted to the negotiations. One can appreciate that there must have been a great deal of pressure, exerted at the last minute, to achieve some written memorandum, given the length of time, and money that had already been devoted to thc mcetimg. The 'billing recoils for the hearing indicate that upwards of twelve hours was spent in attempting to dispeax~ with Beverly's problem. Immediately following thc signing of the memo Beverly contacted Mr. Russo, later the next morning, (November 19), and indicated her intention to either continue the negotiations, with Oakwood, or to proceed to .agree further stage of representative adjudication, the draft of the current Memo notwithstanding. It was at this time that Rnsso apparently informed Beverly that he could not represent her in that effort, and recommended that she seek outside counsel. A call, to my office, by Beverly, soon followed. With the above recital as an historical background, I became involved in Beverly's case and immediately began to obtain the records of the negotiations. I have the followlnE questions, and observations, that I would like to discuss with you in the hopes that we can, for once and for all, finalize a solution consistent with our client's mutual interest and well being. Beverly's primary concerns involve certain aspects of the Memo that directly relate to her responsibilities to her lender, National City Mortgage, who still retains a mortgage on the property. AS a consequence of her relationship with her lender, a lender intent upon foreclosing on the property due to the incomplet~ work, she does not now wish to voluntarily relinquish the property but hopes to be able to continue to satisfy her current mortgage, so as to be able to either pay off Oakwood for the fair market value of their work, if any, or to have someone properly complete the work that was originally contemplated and contracted for by these parties (Oakwood and Orindley). In light of your client's immediate response and return to the Schoolhouse Road site, following the mediation session, Beverly is confident that Oakwood wants to sec the project, at long last, completed. 'Would you object to attempting a clarification of the language of the FROM : GROUP H~NOUER, INC PHONE NO. : ?17 6~E 914~ Dec. 04 2081 12:1EPM P4 Memo, as it relates to Beverly's proscription from speaking about this project with necessary, outside contractors? Since oakWood erected the improvements on Beverly's property for her benefit, she must be able to openly discuss the possibility of having another complete the work, if Oakwood is unwilling, or unable, to do so. As a consequence she cannot remain silent as to construction details and specifications, as addressed in the Memo. Beverly has been independently contacted by the Department of Housing and Urban Development, and she has agreed to assist them in determining why this project has required such an extensive degree of due diligence on the port of outside experts. She cannot adequately explain thc situation and why she is being asked to not proceed with the necessary repairs, on her own initiative, rather than simply turn the project over to Oakwood without going into some detail concerning the construction history of this site, as it relates to Oakwood's work. Beverly can only resolve the matter, by speaking freely to the investigators who apparently are intent upon appearing at the foreclosure hearings, concerning the unique construction problems facing this residence. It seems clear that any subsequent purchaser of this home may need to know the reason for the delay in completion of this otherwise uncomplicated project. A strict reading of the Memo would prevent her from speaking freely about her personal history with this site. Beverly and her husband had chosen a unique site for the dream home that their budget, and means, would allow, only to be frustrated by the efforts of an allegedly ill equipped contractor. The Memo stated certain specific terms whereby both Orindlcy and Oakwood agreed to settle the matter, concerning thc numerous construction defects that were present in the single-family residence that Oakwood bad attempted to construct on behalf of my client. The memorandum went on to outline duties and responsibilities for both panics as well as a time schedule for perfoi-niance of these duties. Items addressed in the memo, other than an agreed upon price of Forty-Five Thousand dollars ($45,000.00), to be paid to Grindley by Oakwood, included provisions for property tax proration, cessation of future action against either party, and the necessity to retain the confidentiality of the agreement by and between the parties to the memo. According to some of the particulars of the Memo, Beverly is to be named as an additional insured on Oakwood's certificates of insurance, prior to Oakwood initiating any further work on her property. As you may already be aware, Oakwood proceeded to begin significant remedial work on the faulty foundation system without satisfying this rather simple administrative duty. No right of entry existed, for Oakwood, on to Orindley's property with or without the Memo, unless evidence of this insurance arrangement had been obtained. Has Oakwood made adequate arrangements, consistent with thc Memo's directive, concerning the additional insured provisions? Lastly, and most important, will Oakwood agree to a completion schedule, that contemplates Orindiey as the ultimate owner of the improvements? I hope that we can see clear to answer these questions and to help Beverly and John reach an equitable settlement in their efforts to complete this project. I trust that given the nature of this issue and my admittedly late introduction to the ongoing negotiations between these parties, I can rely on your prompt response. FROM : GROUP H~NOUER, INC PHONE NO. : 717 6~ 914~ D~¢. 04 2001 12:14PM P5 Sinee~ly yours, Cc: Beverly Gdndley (Griffith) LAW OFFICES POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN ~4 LOMBARDO A PROFESSIONAL CORPORATION 114 NORTII SECOND STREET HARRISBLIRG, PA 17101 (717) 238-9300 F^CSmlLE (717) 238-9325 KI) ECKI~ R@ POWELLTRACHTMAN .COiq WWW. POWEI,LTRACItTMAN .COM December 17, 2001 (610) 354-9700 FAX(610) 354-9760 SUITE213 (856) 663-002 I FAX (856) 663-1590 PLEASE REPLY 'FO: HARRI$BURG Beverly A. Grindley Griffith 58 South Corporation Newville PA 17241 Re: Oakwood Custom Homes v. Beverly A. Grindley NOTICE OF CLOSING ON DECEMBER 31, 2001 Dear Ms. Grindley Griffith: On November 15, 2001 you executed a settlement agreement in the foxm of a Memorandum of Understanding, resolving all matters with Oakwood Custom Homes. Pursuant to paragraph 5 of the Agreement, the real estate closing is scheduled to take place on or before December 31,2001. Pursuant to paragraph 9 of the Agreement, you are required to give Oakwood Custom Homes at least 2 weeks' notice of the date of closing. Therefore, we expected to receive your notice of the date of closing on or before Monday, December 17, 2001. If for any reason Oakwood Custom Homes does not receive from you the notice of closing, we have decided to give you notice of the time and place where closing will take place for the real estate to evidence our intention to close, and carry out the terms of the Memorandum of Understanding. Oakwood Custom Homes will appear for the closing on December 31, 2001 at 10:00 AM in the law offices of Peter Russo, Esq. inasmuch as he is required to give an attorney's certificate of clear title for this transaction. If this time and place for settlement in Cumberland County differs from your plan, please let me know right away. I am sending a copy of this letter to Christopher Restak, Esq. and Peter Russo, Esq. for their information. HB:43103v1 4116-01 Beverly Grindley Griffith December 17, 2001 Page 2 Thank you for your anticipated cooperation. CGB:khd cc: Peter Russo, Esquire Christopher Restak, Esquire (VIA FAX and US MAIL) Identical copy of this letter is being sent to: Beverly A. Grindley Griffith P.O. Box 1394 Carlisle PA 17013-6394 HB:43103vl 4116-01 LAW OFFICES POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN ~4 LOMBARDO 1 14 NORTH SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 FACSIMILE (717) 238-9325 C BOWMAN @PowI:,LLTRACHTblAN .COM WWAV. POWELLTRACHTMAN .coiq December 17, 2001 KING OF PRUSSIA, PA 19406 (610) 354-9700 FAX (610) 354-9760 CIIERRY RILL, ~*~J 08003 ($56} 663-0021 FAX (856) 663-1590 PLEASE REPLY TO: HARRISBURG Via Facsimile/First Class Mail Christopher T. Restak, Esq. 213 Carlisle Street Hanover PA 17331 Re: Grindley/Oakwood Custom Homes, Inc. Dear Chris: Thank you for our various conversations regarding the Grindley/Oakwood transaction. As I have said over the phone, Oakwood Custom Homes intends to proceed with the resolution that was achieved in the Memorandum of Understanding of November 15, 2001. Oakwood does not wish to renegotiate the Memorandum of Understanding. The Memorandum of Understanding calls for the setting of a date, time and place for closing on the real estate. Mrs. Grindley-Griffith was to have given O~wood a 2 week advance notice of closing (and the closing date was identified in the Memorandum of Understanding as December 31). Because today is December 17, I have taken the step to give Mrs. Grindley-Griffith notice of the date, time and place of the closing in my attached letter of December 17, setting December 31 at 10 AM in the law offices of Peter Russo for these purposes. I enclose a copy of that Notice herewith for you. You and Peter Russo and I can talk more about the logistics of this closing on December 24, 2001 by phone. At your request, I will speak to my client about a new date for the closing, in view of the fact that December 31 is a very busy time of the year. We do look forward to closing on this real estate transaction, however. Christopher T. Restak, Esq. December 17, 2001 Page 2 Thank you. Sincerely yours, C:'~ *** TX REPORT TRANSMISSION OK TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME USAGE T PGS. SENT RESULT 4145 6339143pp411601 12/19 17:31 01'32 2 OK (~1~) Z58-9:500 l~^csr~m~ CZl~) 238-9325 C~OW~4AN@Pow~LLTRACHTMA~.COM FROM: PHONE: SUBJECT: C. Grainger Bowman (717) 238-9300 DATE: CLIENT MATTER: TOTAL NUMBER OF PAGES INCLUDING THIS PAGE: . PLEASE DELIVEP. AS SOON AS POSSIBLE TO: December 19, 2001 4116-01 ]RECIPIENT COMPANY FAX NO. PglONE No. Chris Restak 633-9143 637-5188 If you do not receive all the pages, please call (717) 238-9300. As per our telephone conversation, attached please find thc ACORD form of certificate of liability insur, ance, which evidences that Mrs. Grindley-Cn'iffith is an additional insured. At your request, I asked that this ACORD form be issued to my attention so that I could send it to you to satisfy your client that she was identified as a certificate holder. Please let me know if you have any questions about it. Thank you. Grain ACOIW. CERTIFICATE OF LIABILITY INSURANCI o"_' 12/19/01 PRO~[JCER THIS CERTiFiCATE IS ISSUED AS A MAURER OF INFORMATION 101 Good Dr, P O ~ox 6425 Lanceste~ PA 1760T Phone:717-397-7531 Fax:?17-397-2296 Oakwood Ho~s Inc P.O. Box 358 Mount Joy PA 17552-0358 ONLY AND CONFERS NO RIGHT8 UPON THE CERTIFICATE HOLDER. THIS CF--~TIFICATIE DOEs NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POUCIE$ BELOW. INSURBRS AFFORDING COVERAGE INSURER E: INSURER C: INSURER D; INSURER E.: COVERAGES POUGILLLLLLLLL~S OF INSURANCE LIETED BELO~N HAVE g{~ I~.SUED TO THE ~U~ ~ED ~0~ FOR ~ ~Y PE~D IND~D. ~Oul~e~, ~ OR commoN OF ~ ~ OR ~ DOOUM~ ~ ~SPE~ ~ ~IGH ~ C~TIFI~ ~Y ~E ISSUED OR ~UCIES. A~E~ LIM~ SHO~ ~Y HA~ B~ ~OUC~ BY PND ~H ~CU~NCE S [, 000 ~ 000 COMMERC~ G~ ~ILI~I ~ Q370153558 01/01/01 01/01/02 GEN~ A~ S2r000,000 GE~L AGG~TE ~PUES PE~ PRODUCTS.COMPfOpAGG ~ 27000,000 r .ouc~ I--'"~JECTPR°' ~ LOC --" AU~MOBILE L~I~ ~INED SING~ LIMIT S ~00 f O00 ~L OWNED NON-~ED AUTOS (P~a~) PROPER~ (Pw ~d~) ~ AUTO ~CH OC~RRENCE Q881600416 04/16/01 04/16/02 E.L UOH ACCIO[~T $ 100 f O00 EL mS~SE-~C0~E ~ 100,000 [~. OlS~E-POUCY~ $ ~00,000 Certiflcat~ Holder is also listed as ~tional Insured on Loc Road & School Road, W~st Pennsboro ~., ~erla~d Co. - ~uil~ng ~o~t $65,000 CERTIFICATE HOLDER I N I AC~m'/1ONAI. INS*J1RED; INSURER [.=,, ~ __ CANCELLATION c/o Pe~m: Ru~so~ 5020 E. Trindle Road, Ste. 200 ACORD 25-S (?197) David M. SmAth ©ACORD CORPORATION 1988 (~HRISTOPHER RESTAK ATTORNEY AT LAW Admitted to Praetle~ in PA, MD and NY www. the construction attorney.corn 213 Carlisle Street, Itanover, PA 17331-2410 Phone: 717-637-5188 * Fax: 717-633-9143 · Email: ctrestak@netrax.net December 2J, 2001 By Facsimile: (717) 238-9325 Original by mail Grainger Bowman, Esq. Powell, Traehtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Griffith and Oakwood Custom Homes Dear Grainger: Subsequent to our joint p_hone consultation, with Peter Russo in attendance, this past Friday, I have had an opportunity to speak with both Peter as well as Beverly Gfindley. It seems apparent, at this stage, that Beverly will not be in attendance at Peter Russo's office, on Monday, December 31,2001, as outlined in your proposed Mediation Agreement (Mutual letter of Understanding) that was drafted on November 14, 2001, as part of an attempt to resolve the issues that existed between Beverly and your client, Oakwood Custom Homes, concerning the improvements at 36 Watson Drive. Beverly has determined that the Mutual letter of Understanding does not address her concerns, nor her financial exposure in this case and she is adamant in her contention that she was to receive a minimum of $16,100.00, net litigation expenses, including attorney's and mediation fees, as part of the settlement. I am taking the time to inform you of her position so as to eliminate the necessity of traveling to Peter Russo's office, on Monday, when she will not be there to assign any of her interest in the property to your client. If you have any questions, concerning this matter, please feel free to contact me. I am also copying Peter Russo with this letter, so as to apprise him of a situation for which I believe he is already aware. Cc: Beverly Grindley (Griffith) Peter RUSSo, Esq. FROM : GRDUP HANOUER, INC PHONE NO. : 717 63~ 914~ Dec. 22 2001 11:38AM P1 To: Remarks: Number of Pages: Grainger Bowraan, Esq. Powell, Trachtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Oriffith and Oakwood Custom Homes Dear Orainger: I have attached a copy of the letter that was mailed, earlier today, regarding Beverly Griffith's position regarding the proposed settlement meeting, scheduled for Peter Russo's offibe, on December 31, 2001, at 10:00 am. Beverly will not be attending as she would not be able to provide a clear transfer of the property at this point in time and she does not recognize the conditions, as stated in the Memo of Understanding, to be binding upon her future performance in this matter. I will'copy Peter Russo with this facsimile, so as to avoid any misunderstanding, and so that it wilt be certain that no meeting, at least as it relates to a property settlement closing, should (or will) take place on Monday. If you have any questions 1 am happy to speak with you about this matter. Yours truly, Chris Restak Cc: Peter Russo, Esq. FROM : GRCUP HANOUER, INC PHONE NO. : 717 653 9145 Dec. 22 2001 ll:~SAM P2 CHRISTOPHER RESTAK A~'O I~NI~'Y Al' LAW Adtt~itt~d to Pructi¢:c in PA, MD and NY www.the c'~ nat ruottona t ~or ney.c'olll 2 ] 3 Ca rlisle Street. Ha ocr,or. PA 17331-2410 Phone: 717-637-51&q · Fax: 717~33-9143 o Emal]: otr~stakC~flotra~.ne~ December 27; 2001 By Facsimile: (717) 238-9325 Original by mail. Oralnger Bowman, Esq. Powell, Trachtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Griffith and Oakwood Custom Homes Dear Orainger: Subsequent to our joint phone consultation, with Peter Russo in attendance, this past Friday, I have had 'an oppommity to speak with both Peter as well as Beverly Grindley. It seems noparent~ at this stage, that Beverly will not be in attendance at Peter Russo's office, on Monday, December 31, 2001, as outlined in your proposed 'Mediation Agreement (Mutnal letter of Understanding) that was drafted on November 14, 200 I, as part of an attempt to resolve the ~ssues that existed between Beverly and your client, Oakwood Custom Homes, concerning the improvements at 36 Watson Drive. Beverly has determined that the Mutual letter of Understanding docs not address her concerns, nor her financial exposure in this ease and she is' ~domant in her contention thru she was to receive a minimum o£ $16,100.00, net litigation expenses, including attorney's and mediation fees, as part of the settlement. I am taking the time to inform you of her position so as to eliminate the necessity of traveling to Peter Russo's office, on Monday, when she will not be there to assign any of her interest in the property to your client. If you have any questions, concerning this matter, please feel fr~ to contact me. I am also copying Peter'Russo with this letter, so as to .apprise him of a situation for which I believe he is already aware. Cc: Beverly Grind~ey (Oriffith) Peter Ruaso? Esq. LAW OFFICES POW'ELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN ~ LOMBARDO 114 NORTI! SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 F^CSIIqILE (717) 238-9325 CBOWblAN @POWELLTRACHTbIAN .C¢)M PO~tELLTRACItTMAN.COiq December 28, 2001 (610) 354-9700 FAX (610) 354-9760 SUITE213 1763 ROUTE ?0 EAST CHERRY }[ILL. NJ 0g003 (856) 663-0021 FAX (856) 663-1590 PLEASE REPLY TO: HARRISBURG Beverly Grindley-Griffith 58 South Corporation Newville PA 17241 Christopher T. Restak, Esq. VIA FAX AND U.S. MAIL 213 Carlisle Street Hanover PA 17331 Re: Oakwood Custom Homes v. Beverly A. Grindley NOTICE OF YOUR FAILURE TO PERFORM AT REAL ESTATE CLOSING FOR 36 WATSON DRIVE SCHEDULED FOR DECEMBER 31,2001 Dear Ms. Grindley Griffith and Mr. Restak: On November 15, 2001 Ms. Grindley executed a settlement agreement in the form of a Memorandum of Understanding, resolving all matters with Oakwood Custom Homes. Pursuant to paragraph 5 of the Agreement, the real estate closing was scheduled to take place on or before December 31, 2001. On December 17, 2001 I sent a letter to you and to your counsel notifying you that closing for the real estate would take place on December 31, 2001 at 10:00 AM in the law offices of Peter Russo, Esq. On December 24, I spoke by telephone with Christopher Restak, your currently retained attorney, and Peter Russo, Esq., and advised that Oakwood intended to appear at real estate closing on December 31, and perform the terms of Memorandum of Understanding. Today, Mr. Restak has informed me by letter that you will not perform the terms of the Beverly Grindley-Griffith December 28, 2001 Page 2 Memorandum of Understanding and nor will you convey the real estate at the scheduled closing. I informed Mr. Restak by phone, and am informing both of you by this letter, that Oakwood considers Ms. Grindley's refusal to perform the Memorandum of Understanding a material breach of the terms of the Memorandum of Understanding. We consider your notice of refusal to perform closing will make the closing on December 31 entirely unnecessary. Therefore, Oakwood will not appear for closing on December 31, unless we hear from you otherwise. If we hear from you, then we will probably have to re-schedule for another date and time. Oakwood is ready, willing and able to perform the terms of the Memorandum of Understanding. Oakwood intends to seek specific perfo.rmance of the Memorandum of Understanding with the Court of Common Pleas. cc: Peter Russo, Esq. VIA FAX AND U.S. MAIL Identical copy of this letter is being sent to: Beverly A. Grindley Griffith P.O. Box 1394 Carlisle PA 17013-6394 Sincerely yours, Attorney for Oakwood Custom Homes, Inc. *** TX REPORT *** TRANSMISSION OK TX/RX NO 4158 CONNECTION TEL 6339143pP411§01 SUBADDRESS CONNECTION ID ST. TIME 12/28 16:22 USAGE T 02'05 PGS. SENT 3 RESULT OK (212) 2~8-9300 FAC$1MILB (217) 238-9325 C~O~IAN~Po w flLiTZ~.CHTMAN-COM FROM: SUIKIECT-' C. Grainger Bowman DATE: (717) 238-9300 CLIENT Mn',-i*:R: Grindley / Oakwood Custom Homes, Inc. TOTAL NUMBER OF PAGES INCLUDING THIS PAGE: . PLEASE DELIVER AS SOON AS POSSIBLE To: December 28, 2001 4116-01 RECIHENT Chris Restak COMPANY FAX NO. 633-9143 If you do not receive all the pages, please call (717) 238-9300. PHONE NO. 637-5188 Notice of Breach ~opy to Peter Russo LAW OFFIC F.$ POWELL, TRACHTMAN, LOGAN, CARRLE, BOWblAN & LOMBARDO 114 NORTII SECONI) ~TREET HARRISBURG, PA 17101 1717) 238-9300 F^C$1/nlLE 1717) 238-9325 CBOWMAN@ POWELLTRACHTMAN .CO]q ~W. POWELLTRACHTMAN .COH December 28, 2001 1610) 354-9700 FAX 1610) 354-9760 CIIERRY HILL, NJ 08003 (856) 663-0021 FAX 1856) 663-1590 PLEASE REPLY TO: HARRISBURG Peter Russo, Esq. 5010 E. Trindle Road, Suite 200 Mechanicsburg, PA 17050 Re: Oakwood Custom Homes v. Beverly A. Grindle¥ Dear Peter: This will confirm that Ms. Grindley (through Chris Restak) has advised Oakwood (through me) that she will not be attending real estate closing on December 3 I, 2001 in your office to perform the terms of the Memorandum of Understanding, and to convey the real estate at 36 Watson Drive to Oakwood. For this reason only, Oakwood will not be attending the closing either, but Oakwood does stand ready, willing and able to perform the terms of the Memorandum of Understanding when Ms. Grindley changes her mind. In the meantime, we would like to count on your ability to provide the attorney's certificate of clear title, as per the Memorandum of Understanding, if the matter arrives at a closing amicably. Consequently, Oakwood will seek specific performance of the Memorandum of Understanding in the Court of Common Pleas. cc: Christopher Restak, Esq. Sincerel× yours, C. Grainger"l~owman VERIFICATION I verify that the statements made in this Complaint are true and correct to the best of my knowledge, infom~ation and belief. I understand that any false statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Attorney for Oakwood Custom Homes, Inc. HB:43358v1 4116-01 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Hanisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 05 - ~ t../~' ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of Beverly A. Gfindlcy-Griffith and certify that I am authorized to do so. Date: HB:43362v1 4116-01 CERTIFICATE OF SERVICE I hereby certify that on January 23, 2002, a tree and correct copy of the withinAcceptance of Service was served upon the following person(s) by first class U.S. Mail, postage prepaid: Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 HB:40765.14116-01 Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 Notice to Defend YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN COUNTERCLAIM WITHIN TWENTY (20) DAYS OF SERVICE UPON YOU OR A DEFAULT JUDGMENT MAY BE ENTERED 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 CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. You should take this paper to your lawyer at once. If you do not have or know a lawyer, then you should go to or telephone the office set forth below to find out where you can get legal help. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted dcsca dcfcndrsc de las qucjas expucstax en las paginas siguicntes, dcbe tomar accion dentro de vcinte (20) dias a partir de la fccha en quc recibio la dcmanda y cl aviso. Usted dcbc prcscntar comparcccncia csrita cn persona o por abogado y presentar cn la Corte pot cscrito sus defenses o sus objections a las dcmandas en su contra. Se le avisa que si no se defiende, el caso puede proeeder sin usted y la Corte puede decidir en su contra sin mas aviso o notifieaeion por cualquier dinero reelamado en la demando o por eualquier otto queja o compensation reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTE DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABODAGO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABA JO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 DEFENDANT'S ANSWER~ NEW MATTER AND COUNTERCLAIM COMES NOW, Beverley A. Grindley-Griffin, by and through her attorney, Christopher Restak, to file an Answer, New Matter and Counterclaim, in the above captioned matter. Defendant's filing comes pursuant to a Complaint, entered by the Plaintiff, Oakwood Custom Homes, Incorporated, on January 16, 2002. Defendant's Answer follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted upon information and belief. 5. Admitted upon information and belief. 6. Admitted, in part. Defendant admits to signing a document titled Memorandum of Understanding (the aforementioned "agreement" that Plaintiff notes in their Complaint; hereinafter referred to as "the document") Defendant denies all other aversions, by Plaintiff, and avers that this understanding was signed upon the belief that this document was to be subsequently redraffed, for final review and execution. Defendant contends that the informal appearance of the document and the latent ambiguity contained in that same document, rendered the signing as simply a good faith commitment to seek a permanent settlement of the issues, once the final agreement was prepared for execution. It is Defendant's contention that she is not bound to the confidentiality component of the document since a slxict reading of that component would render her unable to defend against the mortgage foreclosure action that was subsequently initiated against her property (for failure of the Plaintiffto perform under a pre-existing contract for construction). The foreclosure action is docketed as 01-1586 and it has been filed in the Cumberland County Court of Common Pleas. 7. Admitted. The terms of the memo speak for themselves. 8. Admitted. The terms of the memo speak for themselves. 9. Admitted. 10. Admitted. Defendant's failure to perform, under the terms of the document, was excused by the intervening, amended foreclosure action that postdated the signing of the document. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. ! 7. Admitted. 18. Admitted as to the sending of the letter. Denied as to the claim of breach by the Plaintiff, against Defendant. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 19. Admitted. 20. Admitted. 21. Admitted. 22. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 23. Admitted. 24. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 25. Plaintiff.s allegation is a conclusion of law to which no responsive pleading is required. 26. Admitted. 27. Admitted. 28. Admitted. Wherefore, defendant, Beverly Gfindley-Gfiffith, requests this Honorable Court to enter judgment in its favor and against Plaintiffs. NEW MATTER 29. Defendant hereby incorporates paragraphs 1 through 28 of its Answer as more though more fully set forth herein. 30. Plaintiff's claim may be barred by the doctrine of"unclean hands." It is as a direct cause of Plaintiffs failure to perform under a construction contract, executed between plaintiff and defendant on February 15, 1998, that mortgagee has initiated a foreclosure action against defendant. 31. Plaintiff's claim should also be barred by the doctrine of"unjust enrichment." If the Court were to award specific performance of the proffered document, as Plaintiff has requested, Plaintiff would be unjustly enriched. Defendant, due to Plaintiff's breach of the underlying construction contract, currently faces a foreclosure action, initiated by its mortgagee. Basis of the foreclosure action is that portion of Defendant's mortgage agreement requiring the completion of the improvements by November 10, 1999. A copy of the Construction Agreement is attached and incorporated, by reference, as (Exhibit A). Since Plalntiffwas singularly responsible for Defendant's failure to satisfy the construction completion provision, Plaintiff should not be rewarded for their own lack of performance under their own contract between Oakwood Custom Homes, Incorporated and Beverly Grindley. 32. Plaintiff should be required to compensate Defendant for any losses, direct and consequential, suffered as a consequence of Plaintiff's failure to perform under the construction contract. 33. Plaintiff's claim for .... "such other and further relief that the Court deems appropriate..." lacks specificity and falls to put Defendant on notice as to the true nature of the claim being made. 34. Plaintiff's claim for attorneys fees is unsubstantiated and without basis, in either contract or equity. WHEREFORE, Defendant requests that this Honorable Court dismiss Plaintiff's Complaint and, more specifically, dismiss Plaintiff's request for Specific Performance. COUNTERCLAIM 35. Defendant hereby incorporates paragraphs 1 through 34 of its Answer and New Matter as though more fully set forth herein. 36. Defendant is currently defending her property, the subject of Plaintiff's claim for Specific Performance, against a foreclosure proceeding, initiated in this Court and docketed at 01-1586. Basis of mortgagor's claim for foreclosure is Defendant's inability to complete construction of a single-family residence. Plaintiff has responsible for the construction activities, as per the terms and conditions ora written contract, hereinafter referred to as the Construction Agreement, a copy of which is attached and incorporated, by reference, as (Exhibit A). 37. As per the terms of the written Construction Agreement, Paragraph 13. Time of Performance, Plaintiff was to have finished the house within 120 days from the date of the execution of the contract (Feb. 15, 1999). 38. Plaintiff failed to complete the work, as contemplated under the Construction Agreement, and abandoned the project, 39. Plaintiffhas allowed the improvements to deteriorate to a condition whereby Defendant's own property insurance company cancelled insurance, due to "willful or negligent acts or omissions by the insured." Specific conditions cited included, "foundation problem, due to foundation settling." Defendant was directed to "properly install footers below frost line: and water proof basement wails." A copy of the Notice of Cancellation or Refusai to Renew is attached and incorporated, by reference, as (Exhibit B). 40. Defendant was required to seek outside consultant(s) in order to evaiuate the current state of improvements that Plaintiff had completed, under the Construction Agreement, and in order to gain an estimate of what it would cost to properly complete the residence, as originaily contemplated under the Agreement. A copy of Defendant's estimate is attached and incorporated, by reference, as (Exhibit C). 41. According to the estimate, Page 3, Paragraph 1., the contractor, McCorkel Construction Services, Incorporated, the existing home will have to be demolished, and properly rebuilt. The cost of the demolition, and reconstruction, is estimated at $136,180.00, which exceeds the cost of the original Construction Agreement between the Plaintiff and the Defendant. 42. Plaintiffhas breached their contract (Construction Agreement) and Defendant has a good faith basis to seek adequate compensation for her damages, which are a direct, and foreseeable result of Plaintiff's breach. 43. Defendant has incurred consequentiai damages, in the form of additionai interest charges, and legai fees, in defending herself in the foreclosure proceedings that have been initiated against her. 44. The basis of the foreclosure action is the Defendant's inability to satisfy the Construction/Permanent Rider which mandates that the construction of the residence "shall be completed on or before 11/10/99." A copy of Defendant's Foreclosure Complaint is attached and incorporated, by reference, as (Exhibit D). 45. Plaintiff's failure to complete the construction, in a timely fashion, was the proximate cause of Defendant's current foreclosure action. 46. Defendant is entitled to a refund of monies paid to Plaintiff, on deposit, as well as damages directly related to Plaintiff's alleged negligence in completing improvements under the Construction Agreement. WHEREFORE, Defendant requests that this Honorable Court enter judgment in its favor and against Plaintiff, Oakwood Custom Homes, Incorporated, in the following amounts: A. i. $ 6,048.00 representing the interest on Defendant's mortgage that was incurred between November 1999 and November 2001. ii. $136,180.00 representing the estimated costs to remove and rebuild the single-family residence that was the subject of the original Construction Agreement. iii. $1,000.00 representing the amount given to Oakwood Custom Homes, Inc., as a good faith deposit on or about 2-15-99. iv. $ 2,000.00 representing monies given to Oakwood Custom Homes, Inc., for future heating system. B. Award judgment against Plaintiff, Oakwood Custom Homes, Inc., in favor of Defendant, for reasonable costs of this action. C. Award Defendants reasonable attorneys fees for the costs associated with case No. 01-1586, as initiated by National City Mortgage, against Defendant. Hanover, PA 17331 (717) 637-5188 PA Supreme Ct. I.D. # 81514 Attorney for Defendant Date: February 8, 2002 VERIFICATION I, the undersigned, Beverly A. C. rdndley, hereby certify that I am authorized to verify this pleading, on my own behalf. I hereby affirm that the facts contained in the foregoing Answer and New Matter and Counterclaim are tree and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Beverly A. Grindley Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer, New Matter, and Counterclaim upon, C. Grainger Bowman of Powell, Trachtman, Logan. Carle, Bowman & Lombardo, located at 114 North Second Street, Harrisburg, Pennsylvania 17101, by United States mail, first class, postage prepaid, on February 7, 2002. C~iStopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA. Supreme Court I.D.# 81584 Attorney for Defendant EXHIBIT A rev 10~9s ~"CONSTRUCTION AGREEMENT AGREF24~N? made thi~ by and between OAIfWOOD CUSTOM HOMES, INC.~avlng an office at 422 W. ~ain St, Mt Joy, PA 17552 (hereinafter "Contractor"! and ~6x;~J_~ ~ 1. AGREEMENT TO PURCHASE: The Contractor hereby agrees to c~nstruct.ahouse (the "Home") known as a ~t ~h.~- [<-~6~._ , substantially conforming to the attached. . plans and specifications (the "Plans and Specifications"), and the Owners agree to purchase the Home to be erectedon. the premises (the"Lot") owned, equitably ow~ or l~tended to ~e owned ~y O.w~er(s) located at h~. ~k ~% ~'~ ~4~t 2. PRICE: (a). The Price for the Home is ~?0 (the Contra~ ~rice"), and includes allowances fo-~i~ated lot %mprovements noted in #3 a-f and #5 d, based on information provided by Owners(s), subject to additions and deductions by change orders. Ail change orders must be agree~ to by Contrgctor in writing and paid in advance at the time of execution. The Contract Price includes any options specified in the "Options" section. 3. NOT INCLUDED 'IN CONTRACT PRICE: Due to the varying cost because of lot and local conditions, we do not include t. he cost of site work and lot improvements in the Price listed in paragraph 2 (a) of this Agreement. However, the Contractor shall act on behalf of the Owner(s) and engage third parties as subcontractors of the Owner(s) .to perform site work and lot improvements. Funds necessary to reimburse the Contractor for bills paid to third parties, must be made available through the disbursement schedule of draws on the Home. If the Owner(s)'s mortgage is not large enough.to pay the Contract Price and the cost of the lot improvements, funds to cover the difference must be escrowed under terms payable to Contractor prior to commencement of construction and released to the Contractor when requested. The following amounts are estimates of the actual cost. The Owner is responsible for reimbursing the contractor for the full amount of the actual cost of the lot improvements as shown on the invoice of the subcontractor. (a) . (b) · (¢) · (d) . Excavation, backfill and rough grade fine grade and seed' the lot with ~xis~ing soils ....... $ *Any required blasting is never included. Install septic system .... : ........ Install shale or stone drlveway, ii6;i.. Storm water, fill in or out, topsoil in, sidewalks, stumps, debris, etc ..... Permits/Inspections Othe~ 4. OWNER(S) MUST PROVIDE TO CONTRACTOR: The Owner(s), at their cost, must take the following actions and provide the Contractor with the following permits or documents (if applicable to the construction of the Home) before the Contractor is required to commence construction: I/We hav.e .read and fully understand and_agree to the 'te~ms and conditions containe~ herein. ~ ~ . b. In the eventthat the appraieed value of the subject home to be built (along with the lot it is intended to be built up6n) is lees than the sale price, the Contractor, at his sole option, may elect to negotiate the price with Owner or to reduce the purchase prige.to the appraised value with all other terms and conditions remaining unchanged. c. The Contractor may extend settlement date, at C actor's sole option, for a period of u ~o 300 da~, ontr _ ~f it is neCeesaz7 (in Contractor's sole opinion) for =ne ~mpletion of construction, or coordination of financing with Lender(s) o~ Governmental agency. . _. d. As pprt of this agreement, Owner agree =o cooperation fully with Contractor and Lender in obtaining financing 9pproyal. Such cooperation include~ but is.not limited to l~u~edlately providing all required information, incurring NO ADDITIONAL' DEB~, pa~ing all present payments on time, and being responsible in retaining present employment. owner understands that failure to cooperate as herein defined will be a default under this agreement and will cause owner to forfeit his/her de osit.moneys including but not limited to the note described in this agreement. e. Owner agrees to accept FmC..-GP~., FHA!. VA, F~FA, ~, CommunltyHome Buyer, Conventlo~a£ or o=ner a£=erna=lve loan type from that originally attempted if Owner ~alifies for that alternative loan type based upon information provlded to. Con~ractor end, or Lender and does not qualify for or funding is not readily available for the loan type originally attempted. In the event that the loan type changes, Owner understands and agrees that the mortgage amount, monthly payment, and closing costs may change. Owner agrees that they will accept those changes and execute prompt%y all necessary documents to effect those changes,provlded that the Lender is willing to make the loan based on those changes. f. Contractor agrees t~ pay up.to $ ~l~ of Owner's allowable closing costs which ~ncludes and which is subject to the Lender's parametere for the loan type and will not exceed 3% on conventional and 6% on GRH/VA/FHA. g. Owner has reviewed and received an estimate of closing costs. h. Owner'and Contractor agree that in the event of Owner's financing looking unfavorable in Contractor's sole opinion. Contractor, at Contractor's sole option may terminate this agreement on 24 hours verbal notice after which this agreement shall be null and void and all deposit monies returned to Owner so long as Contractors determination is not a result of a default by the Owner. i. If the appraisal exceed's the sale price, Owner agree's to permit lender, if the loan program allows it, to finance up to the appraised amount for the purpose of financing some closing costs. j. Should it be necessary to consolidate or refinance any existing debt to qualify for a mo.z~.gage for this_~urchpse, and a lender makes such consolidation loan or rezlnanclng ~vailableon terms that are acceptable to mortgage lender for mortgage approval purposes, owner hereby egret's to accept such and fully coo~erape wi.th, the st.rp, cp~lng, _ documentation, collaterallza~lon with any ellg.lDle assets, ~nd placement of s~ch consolidation and/or refinance loan. k. In the event this transaction requires the acquisition of a gift by Owner forclosing costs and/or down payment, Owner warrants the availability of said gift. I/We have read and fully understan~c~agree to the terms and conditions contained herein. (a). Close on construction financing with lender; (b). Provide a certificate of attorney or title agent of clean title to Lot, recording of mortgage and deed of trust, and recording of waiver of mechanic's liens (where applicable). (c). Provide the Contractor with payout schedule, from the lender, acceptable to the Contractor, showing what funds will be released when. The total of the draws must be equal to the Contract Price and the estimates for lot improvements. If the draws are not sufficient to pay the Contract Price and the cost of lot improvements, the Owner(s) must escrow the additional funds required, which shall be paid by the Contractor as draws on the construction of the Home before the lending institution funds are used; (d). The Owner(s) shall purchase fire and extended coverage insurance and provide the Contractor with a copy of the policy, which shall include "all risk" insurance for physical loss and damage including, without dupllcat~on of coverage, theft, vandalism and malicious mischief. The insurance shall be for the full insurable value of the construction of the Home and shall insure the Owner(s) and the Contractor, as their respective interests might appear; (e). Select colors and have a pre-building discussion with the Contractor upon 5 days notice from Contractor that it is ready.. (f) · 5. CONSTRUCTION PROCESS: (a). Owner understands and agrees that each home is custom built on an individual basis and that the subject home may vary slightl~ from the plans or model shown including variations in the size of rooms, doors, and windows locations, etc. However, Contractor agrees that the ~_u~.ject home will be built similar to the shown plan, specifications and/or model. The Contractor's Price is based on construction on a flat lot with a set number of blocks, and in the event any site work is "included" (as indicated above), it is based on the most economical sitting of the house to provide for the exclusive use of existing soils and fills and the most economical driveway configuration. The cost of additional block, structural steel, and larger footer and block or fill or blasting or longer than necessary driveway due to conditions of the Lot will be added to the Purchase Price. --~(b) Owner agrees to make all change orders and all selections within 48 hours of notice from Contractor and Contractor shall have the right to approve same. In the event any.selections are not approved by Contractor, Owner agrees to repick within 48 hours. In the event Owner does not make selections within 48 hours, Contractor may choose selections on behalf of Owner and Owner agree's to accept such as if they had made them. ~c) Owner agrees to conduct a walk through of the home With Contractor or Contractor's representative upon 48 hours verbal notice during which a final repair list will be made after which all items not noted will be dealt with in accordance to the terms of the warranty. Any unnoted ~loor/counter/wall/tub damage and other types of damage elects will be deemed caused by Owner if not noted at this walk through. I/We have read. and fully unde~stand~a~d agree to the tel-ms and conditions contained herein. '~<~.~ .... Failure to attend the walk through shall be considered approval'and.unconditional.a~ceptance by Owner of the property'in it's then condition subject to the terms of the warranty. (~) In the event the home being purchased requires an on site well the allowance for such is $2500 inclusive of tie in and any desired or lender required treatment system. (e) Owner and Contractor hereby agree that after the start of construction any change order and it's charge must be agreed to by both parties. In the event there is no agreement the change will not be made and the original terms will apply. There will be a $250 fee for any such changes in addition to the actual change order cost. This is to compensate Oakwood Custom Homes, Inc.'s overhead in accommodating changes. This applies to deletions as well as additions and applies each time there is a change. 6. RESPONSIBILITY ON OWNER(S): Except for the parties engaged by the Contractor on behalf of the Owner(s) under Section 3 to provide lot improvements, no other party (including the Owner(s) shall be engaged by the Owner(s) to perform work on the Home or lot unless the Party to perform the work enters into a written agreement with the Contractor and the Owner(s) regarding scheduling of work, payment and other matters on terms satisfactory to the Contractor. Any Party's engaged on behalf of Owner, are subcontractors of the Owner(s). The Contractor will not be liable for the work of the Owner(s) or Owner(s) 's subcontractors, including any delay in construction resulting from such work. Owner(s) shall reimburse the Contractor for any costs to the Contractor caused by the actions of Owner(s) or Owner(s)'s Subcontractor and shall indemnify and hold harmless Contractor fro any claims, damages, liabilities or cost (including attorney fees) arising out of the action of the Owner(s) or Owner(s) 's Subcontractors. 7. BASEMENT: Ail grading shall be done to divert water away from the Home during construction, as well as after the Home is completed. Block by it's very nature is porous and Contractor does not warrant a dry basement. 8. DEPOSIT: Upon the signing of the Construction Agreement, the Owner(s). shall pay to the Contractor a good faith deposit of $'~/{~.~ TO BE APPLIED AGAINST THE FINAL PAYMENT OF THE CONTRACT PRICE. The Owner(s) right to the deposit will be terminated if the Owner(s) default in any of their obligations under this Construction Agreement and the Contractor shall have the right to retain the deposit, which shall be in addition to any other rights or remedies the Contractor may have as a result of a default by the Owner(S). An additional deposit in the form of a NIB Note in the amount of $10,000.00 is made a part of this agreement. ). FINANCING TERMS AND CONTINGENCY: This agreement %s contingent upon approval by lender(s) ~ adeg~/ate financing, to be applied for within 7 days of the date of this agreement, to close this transaction at rates and terms that the Owner qualifies for based on the information provided to and relied upon by Contractor in ~gtering into this agreement. In the event adeq%/ate financing cannot be obtained with the full cooperation of Owner, all deposit monies shall be returned to Owner. I/We have read and f~lly unde~stand.a~.d ~gree to the terms and conditions contained here~n. 1. Owner and Contractor agree, that the ten thousand dollar note from Owner to Contractor, as security for Owner's 'erformance of this agreement, will be held by L ContractOr as a deposit. It will not be held by any agen5 for Contractor or treated as an escrow. In the event of default by Owner, Contractor will give to Owner twenty four hours verbal notice to cure the default. In the event that the default is not cured, the Contractor may declare the note due and payable and take l~gal action to collect upon it. 10. ~CONTRACTOR'S PAYMENT SCHEDULE: (a). pa~rments to the Contractor shall be made within 5 days of request by the Contractor and the validity of the draw request will be determined based solely on the lenders inspection of work in place substantially in conformance with the plans and specs. Unless otherwise agreed in advance in writing by Contractor, the 1st DRAW consisting of 20% OF THE TOTAL shall be paid when the Excavation is complete, Footer poured and Foundation Complete; 2ND DRAW consisting of 20% OF THE TOTAL shall be paid when the Rough Framing is comp%et~ and the windows and doors are installed; 3RD DRAW consisting of 20% OF THE TOTAL shall be paid when the Roof is shingled and the Electric, Heat and Plumbing are Roughed-In; 4TH DRAW consisting of 20% OF THE TOTAL shall be paid when the Exterior Wall Cove~ing, Insulation and Drywall are complete; 5TH DRAW cons~stin9 of 10% OF THE TOTAL shall be paid when the Vinyl Flooring, Cabinets, Electric, Heat and Plum~bing are complete; 6TH DRAW consisting of the Total Balance Due the Contractor shall be paid when the Carpe~ hgs.been installed. Any draw requested, except the last ~raw, that work is incomplete due to back order, weather conditions, or circumstances beyogd the control.of the Contractor shall be released providing an additlonal amount of work of an equal dollar value is in place. If work remains due to back order, weather conditions or circumstances beyond the control of the Contractor when the last draw is due an amount mutually agreed to by the Contractor and Owner, no greater than the cost value of the incomplete work, can be withheld from the total due. (b). payment to the Contractor for cash sales, without Owner(s) funds being placed in escrow, shall be made as follows: one half (1/2) upon the signing of this Agreement; one fourth (1/4) when Home !s under roof; one fourth (1/4) when drywall is installed; and the balance, if any, at settlement concurrently with transfer of title and possession of the Home from Contractor to Owner(s). Payments to Contractor for cash sales with escrowed funds shall be made in accordance with the draw schedule found in section 10.(a) of this agreement. (c). payment to the Contractor shall be by FedWire to the ~bank designgted by.the Contractor unless otherwise agreed in advance in writing ~y Contractor. In the event icontractor, has agreed ~n advance to accept disbursement by check from lender, if lender issues said check in the name of both Owner and Contractor, Owner hereby gives DURABLE POWEROF ATTORNEY FOR T~E PUI~POSE OF SIGNING DRAW CHECKS TO Contractor: I/We have read and fully understand and agree to the ter~s and conditions contained herein. -~ ~'~ KNOWN ALL MEN BY THESE PRESENTS: That I/We, T~ ~ ~ , have made, constituted an appointed, and by these ~resents do make, constitute and appoint Douglas L. Zook in his capacity as President of Oakwood Custom Homes, Inc to be MY TRUE AND LAWFUL ATTORNEY, for me, and in my name, place and stead, to act in relation to signing my name, and applying such, to any draw/settlement check naming myself, and Oa.kwood (Custom) Homes, Inc as co-payees. And I hereby declare that any act or thing lawfully done hereunder by.my said attorney shall be binding on myself,.and my he%rs, legal and personal representatives, and asslgns, and ~n case of my death, my said attorney shall render a statement to my personal representative/s for whatsoever has been done pursuant hereto. This Power of Attorney shall not be affected by my subsequent disability or incapacity. The singular as used herein shall be interpreted to include the plural, even though not written in the plural, whenever and wherever the context requires. IN WITNESS WHEREOF, I have hereunto set my hand and seal below to this Specific Power of Attorney. 11. OCCUPANCY: Owner(s) shall be given title to and possession of the Home upon completion of construction and the payment in full of all amounts owed to Contractor. Occupancy of the Home by Owner(s), without written consent oft the Contractor, prior to the payment in full of the Contract Price and all other amounts owed to contractor by Owner(s), shall be deemed to be acceptance by Owner(s) of the Home in its then "as is" condition and Contractor shall be released from its obligation to complete construction and all other obligation's hereunder. In such event, the Owner(s) shall immediately pay to Contractor the Contract Price and any other amounts owed under this Agreement and, in addition, shall pay to Contractor, as damages, the amount of $100.00 per day from the date of occupancy to the date of payment to Contractor in full of all amounts owed. 12. CONTRACTOR'S RE~fEDIES: In the event of a default by the Owner(s) in the payment of any amounts due to Contractor or a breach of any other provision of this Agreement, Owner(s) do hereby irrevocably authorize and empower any attorney or any court of record of Pennsylvania or elsewhere to appear for and to confess judgment against Owner(s), without notice to the Owner(s), for the Contract Price and all other amounts owed to Contractor, together with interest at the rate of eighteen percent (18%), Contractor's cost of suit, and reasonable attorney's fee. Owner{s) waive and release all errors of defeats of Contractor in confessing judgment if the ~wner(s) fail to timely pay or otherWise breach this greement. I/We have read and f~lly understand~and agree to the terms and conditions contained herein. Owner(s) also waive any benefits to Owner(s) under any present or future laws exempting any real or personal property'of Owner(s), or proceeds there from, from attachment, levy or sales as a result of Contractor obtaining a judgment against Owner(s) for the failure of the Owner(s) to make any payments to the Contractor as recuired under this Agreement or otherwise breaching this Agr~ement or laws whi6h provide for stay of. execution, exemption from civil process, or extension of time for payment. The foregoing remedy of Contractor by confession of judgment shall be in addition to any or all other remedies of Contractor, at law or in equity, to enforce its rights under this Agreement. The pursuit of any remedy by the Contractor shall not preclude the Contractor from pursuing, in any order or at any time,.any of all other remedies that are available to Contractor. 13. TItlE OF PERFOPAHANCE: The Work to be performed under this Contract is intended to be commenced within about fifteen (15) days after the date Owner has fulfilled all obligations required by Paragraph 4 of this Contract, weather permitting, and except as otherwise provided or permitted by the Contract, is intended to be substantially completed within about 120 days. The Date of Substantial Completion of the Contract Work is the date when constr~¢tion is sufficiently completed in accordance with the Plan and Specifications so the Owner can occupy the construction work. Warranties called for by this Agreement shall commence on the Date of Substantial Completion of the construction work. If the Contractor is delayed at any time in the proqress of the construction work by any act, failure or neglect of the Owner or by changes ordered or by labor disputes, fire, delay in transportation, unanticipated circumstances, adverse weather conditions, casualties, or any causes beyond the contractor's control, or a delay authorized by the Owner, then the Date for Substantial Completion shall be extended for the period of such delay plus 15 days. Any delay caused by Owner(s), their agents, or Owner(s) 's Subcontractors for over fifteen (5) days, without the written consent of Contractor, shall constitute a breach of this Agreement. 14. WAR/~ANTY: Service work following settlement will be performed by Contractor solely in accordance with the limited Warranty which as presented to the Owner(s) prior to or contemporaneously with the signing.of this Agreement and which shall be a part of this Agreement. There are no other warranties, representations, or policies of Contractor applicable to the Home or this Agreement. The Owner(s) acknowledge that the limited Warranty does not apply to any work that is not the responsibility of the Contractor under this Agreement, ~including.any items of work that are 9o~ ~ithin the Plans Specifications and/or are the responsibility of Owner(s) ~ubcontractors. ' 15. LOCATION OF HOME ON LOT: It is the responsibility of the Owner(s) to have a survey of the Lot or to otherwise ~eter~ine the location of the Lot boundaries, rights-of-way, easements, required roadway access locations and any other limitations on placement of the Home on the Lot. I/We have read and fully understand and agree to the terms and conditions contained herein. The Contractor will locate the Home on the Lot solely based on'the information provided by the Owner(s), and Contract6r is not responsible for the improper placement of the Home on the Lot. 16. PRESENCE OF RADON GAS: Radon gas originates in soil and rocks. Being a gas, radon can move into any air space, such as basements, crawl space, and to other areas of a house. The amount of radon in the soil and'rocks varies from area to area. The Contractor shall not be liable for the presence of radon gas in the Home. The Owner(s) hereby release the Contractor from all claims that may arise, directly or indirectly, from the presence of radon. 17. Miscellaneous: (A). Owner(s) will provide electricity and, when necessary, heat during construction. Owner is responsible for costs for non-standard items such as water quality systems necessary to satisfy conditions of o%rner(s) loan. (b). Contractor shall have access to Home at all times during construction. (c) All rights and liabilities herein given to, or imposed upon the respective parties hereto shall extend to and bind several and respective heirs, executors, administrator, successors and assigns of said parties; and if there be more than Owner, they shall be bound jointly and severally by their terms, covenants and agreements herein, and the word "Owner" or "Owners" shall be deemed and taken to mean each and every person or party mentioned as an owner herein, be the same one or more. (d) The Owner shall not assign his interest in this Agreement without the written consent of the Contractor. 18. Owner has reviewed and accepted all deed restrictions applicable to this property. 19. Owner understands and agrees that owner is not covered by Contractors insurance for any accident that may occur on the construction site. Owner is expressly prohibited from being on the construction site unless accompanied by the Contractor, or any employee of or agent for the Contractor without the Contractor's prior written approval. 20. owner is aware there is no community sewage system available and that a permit for an individual sewage system will have to be obtained. Owner should contact the appropriate authority prior to signing this contract to determine the procedure and requirements for obtaining a permit for an individual sewage system if one has not already been obtained. Mark if applicable ~ 21. In the event FHA construction financing is used, all ~onstruction loan costs, inspection and title fees, ,interest, -hazard insurance and real estate taxes durin~ ~he construction period shall be paid by Owner to the extent allowed by HUD. I/We have read and f~lly unde~stand.,Ta~d~gree to the terms and conditions contained herein. ' 22. In the event contractor does not ow~ the lot being sold with the new construction as a package at the time of execution of this agreement, this agreement shall be contingent on either Owner or Contractor (as a~p%icable according to construction financing used) acquiring ownership, either record or equitable, prior to settlement. Owner shall cooperate and use best efforts to acquire said lot and in the event Owner's lot agreement (if not record owned by Owner) expires prio~ to the expiration of this construction 9greement including any extensions, Owner agree's to diligently seek extension, of the lot agreement in con]unction --~,~,, this agreement. Failure to do so is a default under this agreement. 23. CHANGES IN WRITING: Any changes must be in writing and signed by both parties. Ail changes must be paid when written or a letter received from the Owner(s) lending agency showing the draw sequence has been changed to include pgyment of the change order in full on the next draw. This Agreement replaces all prior written or oral agreements between Contractor and Owner(s) and shall inure and be binding upon the heirs, executors, administrators, successors and assigns of the parties. 24. GOVERNING LAW: Both Parties acknowledge that this agreement is entered into in Lancaster County( PA and that any legal actions stemming herefrom shall be in the proper jurisdiction of the Courts of Common Pleas of Lancaster County, PA. 25. Settlement date on Owners financing prior to the start of construction to be on or before ~ However this is extendible by 300 days at Contractors sole option to accommodate Owners financing, lot acquisition, construction scheduling, etc. 26. Contractor and Owner certify that no one working in the capacity of a real estate broker or agent is involved with this transaction and this transaction is solely between Contractor and Owner and no compensation is due to any outside party as a result of this transaction excepted as noted here IN WITNESS WHEI~EOF, the parties have set their hands and seals the day and year first above written, intending thereby to be bound. / ba~3~ (SEAL) (SEAL) Oakwood Custom Homes, Witnesses:. I/We have read and fully understand and agree to the terms and conditions contained herein. ~ ~ rev 10/98 ~ CONSTRUCTION AGREEMENT DETAIL This Agreement is a supplement, to a construction/sale agreement.dated ~ /1~/1998 between Oakwood Custom Homes, Inc. hereinafter called Contractor, and ~c0~ ~ ~',-f~:(~C~ hereina f~er called owners, and is intended to be made a pa~ of said agreement as though inco~orated therein. OPTION DESCRI~ION' s Ho~e to be b~ilt is a: ~ ~ ~ ~'--~ ~. Special Notes: I/We have read and fully understand,a~gree to the terms ~nd conditions contained herein. '.~t~., , rev 10/98 · AGREEMENT FOR THE SALE OF REAL ESTATE ~S-SB aesidenth Th~s form recommended =nd approved /or, but not restricted Io us~ by. the members o£ thc Pcrmsy[vonla Asscci=tion of R~ALTOR$® (PAR) AGENT FOR BUYER Douglas L. Zook Real Estate PA. LICENSED BROKER This Agr, ement, dated e-r', ofz (resining at caped Seller, and AGENT FOR SELLER PA. LICENSED BROKER , is between ) c'.flled Buven 2. PROPER'elY (7-96) Seller hereby agrees to sell ,md com'ev to Buyer, who hereby agree to purcSa~' .~L ~&T C~RT.~N lot orp~ece of g~und with bulldm~s ~d4m~ruvements thereon eric:ed. ~f ~v, known as: C~nty of ~&k,~6~-~ i~ ~e Commonweakh of Pc=sylvania. Zip Code Identification (T~ ~$;~rcel 9: Deed Book, Page. Recording Date) Zoning C]~sification /ff~ ' F~e ~ ~s A~eement to con=n ~e zo~ng c!a~2caUon (except in ~s where ~e prcpe~ ~ =a each Farce! USereoL ~' ~b~xi~blc} is zoned miry or phm~ly to pemt ~ng!e-f~ly dwe!lin2s) s~ll bender ~s A~eement voidable at x%e ooUan of~e Euyen =d. ~'voided. =y depnsim tendered ~y ~e Buyer s~l ee re--ed to ~(Su)'er '~Sn~cut ~ny r(qmrement for cc~ aczoh. 3. TE~%I8 (7-96) (A) ~h~ P~ce i~t~ Dollars w~e~ s~l be ~d to che Seiler 5y ~e Buyer as fo lows: (B) C~h or check at ~ing ~s A~e~menr S (C) C~h or check to be prod on or before:. S ~) nla S (~) C~h or ceded cheek at time ofs~ement: S (F) W~.en appr~ of Seller ~o be on or bffore: J ~, T OT.~ S ~ ~, c7C~ (G) Se~ement. to be ~de on or before: L~[~ (~ Convey~ce from Seller ;~11 be by t~e simple deed of s~eci~ ;v~. ~ess o~er, xise ~ated here (I) Payment of tromp'er taxes will be divided equalh' bern'eon Em'er ,md Seller urfless ochem~-/se "~ The folloxving shall be apportioned pm-rata as of and at nme of setdement: taxes as levied and assessed: rents: interest cn mom- gage assumptions: condominium fees and homeowner assecianon fees. 2' any: wake and/or ~:ver rents· il' any: together with any. other liennble municipal senices, unless ochermse st,atcd here HXTLrI~S :~N'D PERSONAL PROPERTY (7-!}6) ]~'cLLrDED in chis sale and purchase price are all existing items permanently ir~ta~led in Ute ?ropers.'. free of liem. including plumbing, heating, llghting fi.x-rares (including chandeliers): water treatment systems: pool and spa equipment: garage d~or openers and ttanamitt¢:~: televiaion antennas: unpotted tzee& shmb~er~ and plantings: any. rcmainin_o heating and cooking fuels stored on theProl~rty at tho time of settlement: wail to xmll carpeting; shades, blinds, window cover'ing~hardware: built-in air condidone:z: built-iq applJancea; and the rang,doyen tmle.~ othcrodse stated. AL.~o idgluded: (B) EXCLUDED fixnu'~ and item~: Sale of Real Estate - AJS-G8 Residential 72. (C) The following are a part of thJs Agreement i£chcckcd. [] Addendum "B" (PAR Form B-6) [] Sa/c & S~ttierncnt of Other Property Contingency Addendum (PAR Form 130-6) [~ Sale & SeEement of Other Property. ~v/t.h R./ght to Con~nue Marketing Contingency Addendttm able for coopcrntl% c sales). [] gaJe of Tenant-Occupied ProperD. Addendum [] (PAR Fon'n TOP-6) Vacant La'nd Sale Addendum (PAR Form [] Zoning Approval Addendum (PAR Form ZA-6) [~n/a (PARForm 1316) []SUBJECT TO BUYER OBTAINING ADEOUATE ."iN.~IC1NG FOR BOTH THIS LOT A~ID THE HOME TO BE BUILT ON! IT DY OA:~,qOOD CUSTOM HOMES, I)IC, SUCH FIH~2fCiNG TO BE APPLIED FOR OH OR BEFORE~I~ . ~U~JECT ~SO TO BUYER BEING ABLE TO OBTAI~I ALL PE~TS .~ID ~.~.ROV~'~ ~ ~ECESS~Y EUiLDING,-S~TIC ~ID WATER AT A COST OF NGT MORE TF~2[ $ ~ FCR ALL. SUEJECT UC ~R!~i~TiCN TF~T BORING FOR UTiLITiES ;~iLL NOT BE REqUiRED. ~. 5'OTICES ~ND A~ESS3fE~TS · at ~il~ ~oxvs of ~o condi~ that would ~fi~e viol~on of ~y s~h ord~ces '.vh,ch :e~a~ ~co~:ed. u~e= o~ec.~ise ip~ified here~ · .D) If requir~ by [a~v. ~ilcr shal deiiver to B~cr on or ~fore scalcm~/ :~:mi~ca~cn' l?am ~e a~propnare m~]ci:~ ~ec~e~t 'or '. T~LE. ~R%~Y~ .%N'D COSTS ~e title to thc ~o~c dc~n~d r~l e~a/e sh~l be ~ood ~d ma}kemble ~d such ~ '.v~il be ~red ~ 'a re~le Tide [~u~n~ Comoa~ at sh~l ha~ the opticn or' ~g such fide ~ ~e ~iler c~ give ;vih~out ~a~m~ ef ~dc: e~ ::' ~m~ rev~d ~1 m~m~ pai~ by 3uver ~ Seil~'en account of ~e pu~ha~ price md ~hc ~ller ;~ill eeimbu~:,~e ~ for ~v ~s~ ~cu~ ~v 3u','~r ~r ~ose items se~i~ ~ ~mph 7(D) ~d ~ p~flmgh 7(E) i~s (1), (2). (3), and mae la=er ev~t ;here sh~l be'ao ~u~er Hmfiie.: ~r ~ii~anon cn either oi":he ~aa~ hereto and (C) Fo~ :md~ of an ex~a~ d~ ~ ~u~e money is hereby '.vav~. (O) ,~ mm~ or s~'~,s which mav be :e~ir~ ~ ~c Tide Imu~ce Comp~ o~ the ~nc:ma a~eme'/. ~br ~ge ~r~a~Ucn of ~ adequa;e ae~npuon ot ~e ~oge~ (or the ~ee~an th~0 sh~l be s~ar~ and p~d .~r by $e ~ile:. Eox;ever. any ~'~ or su~'.~ ~ir~ by Bus~r or ~quir~ by :he morgue I~er sh~l ~ s~cd ~d prod :~r bv th~ ~uver. ; E'~ ~uy~ will pay t~r ~e ~oilo~mg: (1) the pr~ium ~or mech~ics li~ ~ur~ce m~r dHe ~ch. ~r ~ tbr c~ceilation or' amc. if ~v. 1'2) ~e pre~ mmms for flo~ amice ~or fire ~m~ wi~ ~end~ ~ve~$e. ~m~ce b~der charges or ~ceila~cn :~. i~ ~y. ~31 .&~rai~ai ~e~ and chafes paid m ~;'~ :o mo~ga~e [~er. i~ ~y. (a) B~efs no~ ~em~t co~s md a~ruais. DEPOS~ .~D RECOVERY ?L~D · ,&) ~ ~dle~ or' ~e ~o~ of paym~t a~ ae person de~amd as oars. ~ail be paid to A ~t ;br the ~iler. :f ~. o~evmise ;o Aaeat for :~ a~ ~s~ of :he .&~ffs) xvill ~ paid by the pony jo~ th~ .&~ ' ' ' equitable rem~iex For complete derails ~eut ~e Fu~. ~ll (717) 783-3658. (&1 Pos~ion is to ~ detiv~ ~ d~d. k~s ad phys ~ poss~on ~ a :a~t bulldog (if ~5') ~oom c!e~. ~?~ or' debris at day and ~me of sea!e m~. or ~ d~ ~d ami~cm o/e~mg l~s), ~geth~ w{~ ~v s~fiw de,sit and ~teres~ a~ ~me or' ~em~r if Prope~' ~s :~ occupied at ~e ex, don or' ~is ~r~m~t. or u~s oth~vim spgifi~ h~. Bu3~ ~L~owl~ge e~s~g ie~s) bv hi~g s~d )~m(s) at time o/' ~ or' this Agre~t of Sg~ if ~pe~ is tm~ oc~pi~. ' s~t of the Buy~. ' ' ' L 5La~'TEN&~ ~D RISK O~ LOSS (A) $dler ~all m~ ~e Pmp~, f~r~. a~ a~ p~o~l pmp~ ~e~il~lly gh~uI~ herein & its presto ~ndirlom no~ w~r ~d (B) Bu}~r r~ the right ~ make a pre-se~l~t ~ec~on of ae Prop~ )merit for the Salq oI Real Estate- A~.~-88 Residen~al n 5.$1{5.6). ReslFAST~ Soda,are Put,fishing mc.. (c) lgg8 Reg~ PRAP/kR226125. $*lie¢(s) -- (C) $¢ tcr sh',~l ~ar 6sk o£ loss fro~!L!: or otbcc casu:dties un~l dmc o~ sc~cmcaL ~n ~e ; oE d~Sc Zo ~ay pr?pc~ ~c~ud~ ~ ~s ~[~ is hercby nodfi~ that BW~ may ~mrc Buyers cq~t~Ic ~rcr~t ~ ~s p~pcay as of thc ~mc of ~c ~mion of ~is ~rccm~ 11, RECO~I~C (3-85) ~ls ~c~l sh~I ~t be r~ord~ ~ ~c ~cc ~or ~e R~ord~ o~ ~s or ~ ~y o~cr office or ~]~ of public r~rd i~ Bu)er ~cs or ~i~ ibis ~r~m~r ~ ~ r~ord~, Scllcr may clc~ ~ ir~ s~h ~r as s br~c~ o~ ~is ~r~. rbc ~ent ~able, on ~hc ~s o~hc p~cs hcrcro, it bc~g cxprc~y u~crs~, howcv~, that Bu)cr sh~l ~t ~cr or ~si~ this ~i~ho~ ~c wdrrca ~t of ~Ucr. 13, D~P~UbT-T~I~ O~ T~ ~SS~NC~ ~-91) ~c ~{d ~mc for sc~cmcn~ a~ ail o~cr ~mcs rc[cn~ ~o ~or ~c pc~o~ce o~ ~y oErM obii~fio~ tMs ~r~m~t arc hc~y ~r~d ~ be of ~c ~s~cc of ~s ~rccm~C Should Buyer: (A) Fail ~ m~c a~ ~di~on$ pa~ as s~ifi~ ~ par~ph 3. or ~) Fu~sh f~se or ~omplc~ ~o~ation m ~e ~llCr. Agem for Sefler. Ag~t for B~. or ~¢ mo~c l=d~r, coning thC Bu)~s [~al or ~- ci~ s~. or f~l ~ c~mte ~ ~ p~s~ oC ~ mo~g~ l~n applica~on ~ich a~ wo~d re,It ~ thC f~lure to o~ ~e approv~ (C) ~lam or fMI ~ ~1 aM ~ffo~ ~ o~ ~s or ~ndifiom of this ~ ~ such ~z. ~1 de~gt mo~ ~d o~er roms pMd by ~e Buy~ on ~omt of the purch~e p~ce. whether requir~ by ~is Agre~t or no~ may be re~ by the S~er ~ ~quldat~ ~e~ ~ ~th p~ies sh~ ~ rele=~ from ~ U~iIi~ or obligatlo~ ~ ~is Agreem~t shSI be NUlL AN~ VOID. Sellers ~on of~e~ s~s sh~l ~n~im~ ~[lees only r~y ~ ~e e~nt of B~'cds ~each of ~is .~reem~ Se~er w~v~ Se~erq ~ to me for ~ b~ oC ~e p~se prim or for ~ag~ ~te~d b7 a r~e of t~ Prope~. or p~. ~ Ag~($) for ~e ~ller. ~ ~at ~ ~ed Ag~t for ~ Bu)=r. thor mid,pie. Cmploy~ o~ ~ or p~. ~ Agar(s) for 1~. REPRESEATATIONS (~4) (A) B~er mdeamds t~ ~ r~re~nm~o~, clams. ~v~g. p~mogo~l ~vi~. br~hur~ or p[a~ of ~y ~d made by S~ller. ~enm or thor wM~s ~ fi~t to go ~. ~ ~ a~d to pm~se it M i~ ~t ~n~fion. ~)~r ac~wl~g~ ~t th · A g~ ~ve not m~ ~ Mdependent ex--eon or dezer~afion of ~ s~e~l so~$ of ~ P~per~. the age or con~on of t~ ~m~nen~. e~o~tal · e per~ed u~ or of condigo~ e~ M the l~e w~re the ~o~ b ~ma{~; ~r ~ve ~hey ~de a ~i~ ~p~on of NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A Bh'~DING CO/"/TRACT. R~mrn by facsin'ule rransniss/on (FA,'O of ~ .J~i-e~nent of S~le~ ~nd ~Jl a~dend~ be~ril~ the si~tures of all p~rde& cor~.stimCes ~cc~pt~m:e of this A.~reemenr. P;r~ies to ~ ~s~cdon ~re ad~sed to consult an attorney before sig~ing ii' they desire leg=l ad,ice. WITNESS BUYER (SEA-L) DATE Seller hereby approves Ifie above contract this day of A.D. a cor~ideralion of the s~i~ ~de~ ~ pr~ ~e B~. Seller ~s to pay ~e n~ Agar t~r ~llcr · fee of og'~m ~e he~ ~dfi~ role pn~. ~ ~e ev~t Buy~ defa~ts h~cr, ~y moni~ p~d on ~u~ ~al] ~ divid~ . ~enc for ~I1~. but ~ ~ e~en~ ~fll ~c sum p~d ~ the ~ent t~r Setler ~ ~ exes or' the ~ove s~ A~'s 4iTNESS SELLER (SF.A.L) DATE for t~e Sa~e of Real Estate - A~S-BB Residenltal '" ra,,'~IFAST& $oftv~are Publishing Inc., (c) 1998 Reg~ PPAPAR226125. EXHIBIT B NATIONWIDE® INSURANCE COMPANIES 1000 Nationwide Drive P.O. Box 2655 Harrisburg, PA 17105 NOTICE OF cANcELLATION OR REFUSAL TO RENEW PENNSYLVANIA LAW REQUIRES THAT YOU BE GIVEN A COPY OF THIS NOTICE. PLEASE READ BOTH SIDES OFTHIS FORM CAREFULLY. HOMEOWNERS Beverly A. Grindley P~O. BOX 1394 Carlisle, PA 17013-6394 Ki~ Polio: Homeowner/Elite II Poli~No.: 58 HO 704125 Cancellation or ~rm~ion will take effect ~: 05/24/00 lZ;01 a.m. (O~e) (Hour-~anda~me) Dated Mailing: March 15, 2000 LOCATION ADDRESS Lot 2 - Crossroad School Road Carlisle, PA 17013 (Applicable item marked ~) You are hereby notified that the above mentioned policy [] is being cancelled by [~Xwill not be renewed by [] Nationwide Mutual Insurance Company [~Nationwide Mutual Fire Insurance Company [] Nationwide Property and Casualty Insurance Company Thla means that the above mentioned policy will no longer be in force on the cancellation or termination date mentioned above. You have, therefore, until the cancellation or termination date shown above to get new coverage If you want to do so. The reason for this cancellation or nonrenewal is: There is a substantial increase in hazards insured against by reason of willful or negligent acts or omissions by the insured. Your failure to comply with requeeted recommendations seat to you on November 22, 1999. Specifically correct foundation problem, due to foundation settling; properly install footers below frost line; and water proof baseme[~t walls. You may become eligible for coverage if you complete recommendations. When changes have been made or you can provide the necessary information, please contact your Natior~wide Agent to initiate another review. [] The factor(s) that influenced our decision was information in a report obtained from the consumer reporting agency shown below. The consumer reporting agency did not make the decision to take adverse action and is unable to provide you the specific reason why the adverse action was taken. You have the right to obtain a free copy of the report from the consumer reporting agency by request within 60 days of the receipt of this notice. You have the right to dispute the accuracy or completeness of any information contained in the report with the consumer reporting agency. We regret this actiom is necessary. If you disagree with this decisiom or have airy q~estions, please feel free Co con,act your local Maciomwide A~ent shown below. You may request to have this decision reviewed by the Pemnsylvanla Department of Insurance, i~LsCructions provided on back of this letter. (Name) (Address] (Phonic; Muriel Rodriguez Authorized Represe~ative CAS-2667-F (9/98) November 24, 1999 NATIONWIDE INSURANCE Nationwide is ~n your si=la Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013-6394 Policy Number: 58 37 HO 704 125 Survey Date: September 23, 1999 Dear Ms. Grindley: One of the services Nationwide offers our policyholders is a periodic inspection of insured dwellings. These inspections are used to obtain underwriting information and to assist you in properly insuring your property. A recent inspection of your property revealed a condition which could lead to a lo~ in. the future. We havedeveloped recommendations' from the inspection. Completing the recommendations should help reduce the potential for loss on your property. Recommendations are enclosed and should be completed by February 1S, 2000. Please let your Nationwide Representative know by the date indicated above what action you plan to take or have taken on the recommendations. Failure to respond to the recommendations could result in termination of this coverage. We app~ciate your concern for the protection of your insured property. We thank you for placing the protection of this property with Nationwide. Muriel Rodriguez NATIONWIDE INSURANCE Enclosures: Recommendations S03/tmh cc: 2407277 equipment is the legM msl~,~-,~,,',l~ o~ ihe in~ured. Na~,o~r,t.,Me ~s~umes no ampcmstblllty for the mal~t ~' ce4m~ m me insumd's ~;~}, ac~tles. N.~' the C~ml~ny, Its agents, nor emploYeeS "~all be liable f~' any Io~ other ~an as c°~ered ~ ~ NATIONWIDE INSURANCE Recommendations Insured: Beverly A. Grindley i e PA Survey Location: P.O. Box 1394, Carl si , 17013-6394 Date of Survey. September 23, 1999 Policy Number: 58 37 HO 704 125 Failure to respond to the following recommendations could result in the termination of your coverage. You may become eligible for coverage/f you: 99-1 Correct foundation problem. Foundation is starting to settle. 99-2 Properly install footers below frost line. 99-3 Waterproof basement walls. EXHIBIT C McCorkel Construction Services Inc. ~ Z, immerman Read Carlisle, PA 1701~ l~to~a: (717) z43-TS?.z / X?ax (717) ~43.38~ Cdlul~: (?17) "We do it right first time" January 17,2002 Mr. & Mm. John Griffith P. O. Box 1304 Cadlsle, PA 170t 3 Re: Demolition & Rebuild Existing New Home (Approximately 16e4 8q, Ft., ~l)llt Level Style) Located at 36 Wa~on Drive, Carlisle, PA. Dear Mr. & Mrs. Grlffith: This contre~ provides an estimate for the necessan/labor and rnaterlals tO perform the work required by completlng the proposed project within the scope of this description and prints supplied by customer. It is your responsibility to work with MeCorkel Construction Services, Inc. to develop a clear understanding for all legal, site end structural nongiderations for which yOu should have an understanding. This description has been prepared in a manner that reflects the information es it relates to your expectations and the commitments of MoCorKel C;onstru~on Services, Inc. If, for any reason you or McCorkel Construotion Sauces, Inc. make changes, said changes must be in written form cleady explaining the change, me amount of money involved and how the payment/credit will be handled. Change orders require a deposit of 50% upon execution of the change order and remaining balance upon cornpletion, This contract supersedes all other specifications, drawings and/or any other Information provided by client, unless otherwise noted on proposal. The following (wherever applicable) description has been prepared to provide a general idea of what we expect will be involved. As the work progresses, you will be kept informed of eaoh development and the options which are available, thus enabling you to make choices based on your expectations and the monetary amounts involved. Ali materiels supplied and installed by contractor are to be as specked and to carry manufacturer's warranty. All work wfll be completed in a workman I~ke Page Two January 17. 2002 manner. Our labor carries a one-year warranty, Contractor is not responsible for any material or labor suppliecI by customer or customers subcontractors, In the event legal representation is sought due to customer's breaGh of contrast, the customer will be responsible for the contractor's legal fees. In the event e dispute arises regarding s~sfaction of workmanship, and/or rnsteriale, both parties agree to bind themselves over to arbitration by a qualified arbitration penal. Color variations are common and may be evident when new work connects to work in an existing area, due to but no+. limited to dirt, dust, smoke, fading~ weather condigns, changes from menufacturar, variations in paint colors, discontinued materials, unknown manufacturers, etc. Shrinkage or settlement c..recke in blacktop, c. onc, reta, mgrlar joints, block, brick, stone, applied masonry finishes, c, emmiG tile and joints are common and should be expected within certain tolerances. Any ~racks greater than 1/8" in width will he repaired by surface patching or pointing; builder will not be responsible for color variations. Splits end warping in wood are common due to humidi~ levels causing expansion and contraction of the wood, and uneven walls, ceilings and ~loom, and should be expected within certain tolerances. Expansion and contraction of the wood may also cause cracks and nail pops In drywall and plaster, trim Joints, and paint t~ crack, Filler or caulldng and refinishing o1' Re Immediate area will repair any cracks or nail pops that may occur within the warranty period greater man 1/8" In width; builder will not be responsible for color variations or warping of wood, Areas that are dug up may seffle after exposure to certain weather conditions or traffic patterns, those areas would encounter an extra to return and fill back to grade. We will not accept responsibility for any problems arising from pre- existing property (sinkholes, buried debris, etc,}, electrical, plumbing, structural, and/or mechanical system deficiencies. Any visible discrepancies that are evident relative to l~e work involved must be addressed In writing within thirty days after work Is completed and approved. Our workers will strive to profeot oustomer'a property aa muoh as possible, but with the nacre of the job, we cannot be held responsible for any cracks or nail pops in the pleater, drywall, masonry, or dust that may occur during, construction, Customer responsible for removing and replacing existing pcesesaons and furniture from work area, wells, and ceiling, to protect from any damages. Page Three Customer gives contractor permisSion to use driveway, walkways, patlo~, lawn, and or parking afesa for accas~ to work. Contractor will not be held responsible for any orac, ks in m~r'os, walkways, patios, I~arldng areas, and driveways or unevan areas due to delivery of materials or accessing the property with vehi=le~, unlea~ specific, ally noted in the contract. T~e customer will give oontractor permission to trim or remove existing trees and buahee to acoess th~ WO~ area if necesaary. Customer is responsible to carry sufficient homeowner's insurance coverage neces~ry to cover existing home including the cost or'the project. Customer's insurance coverage takes effect when any material is Installed, fastened, etc., In or on the project. McCorkel Construction Services, Inc. !s fully insured with liability and workers' compensation insurance as required by law. Contractor does not guarantee the survival of lawns, plants or shrubs disturbed during or by =onatruction. Customer responsible for watering of lawns, plants or shrubs to insure survival. Wa are not responsible for delays to complete work due to Situations beyond McCorkel Consh'uctlon Service~, Inc. control. Such as, but not limited to. necessary permits, variances, manufacturers supplying of materials in a timely manner, deINe~y of erroneous or damaged materials, possIDte ~amages outing shipment, and or Installation, manufacturer's or delivery labor stdkee, a~ of nature, termflsm, war, or emergency situations. Any aooount not paid in full within 30 days (unlee~ prior agreed upon arrangemenl~ have been made) upon aompleflon of proje~ will be =har~e¢t an addltloltal 1.6% Ifttereet per month on remaining balance (which is an annual rate of t8%. Demc~lltlon of Existing Home as ia in Rouuh Framing Stage Ino Interior or 1. Due to existing structural and labor daflclenoiss addressed bY Yingst Engineers, Heartland Homes, and visual inspection by McCorkel Construction the existing home will have to be demolished, 2. McCor~el Constru~on will not give any guarantee on the existing home to rebuild or oon'ect (monetary value would be less expensive to demolish and rebuild). 3. The existing doors and windows would be salvaged and mused to rebuild in a newly constructed h~rne. 4. Clean up and remove debris from jobsito. Page Four 5. Provide labor end rr~als for the following specifications. Pemtjta, BJueDrint~ and/or Reeuired Fee~ Customer re~pon$ibte for pmvidlng all permits, blueprints, end/or required fees. I~l~lldlna Site Preparation and Exoivatlon 1. Excavate area in existing site for rebuilding of home as per plans. 2. Back fill around the exterior of foundation with the existing onalta fill and then grade the lot. 3. Slope the grade away from home approximately 1" per foot for the first 10' and grade m:~'ding to available 'qope for remainder of lot. 4. No allowances for extra fill or topsoil If needed. (Extra charges for fill and/or topsoil If needed,) 5. Spread topsoil on lot to approximately 4" thick with existing topsoil on lot. 1. Form & pour 3000PSI concrete footings approximately lB" wide x 8" thick w~th tw~ ~ ~teel reinforcing rods, 2. Form footers with Form-A-Drain system and tie into sump crock. ~==ment Wall~ & II: Floor Walls 1. Lay t 0" block to required floor height in basement & fro~ p~rch, , , (approximately 8' high), end to floor fram ng height for 1 floor (garagenam~y room). 2. Install one W1235 ateet beam to clear span I~asernent. 3. Install coment stucco on exterior of block wall and spray sealer. 4. Install lie down straps In walls approximately every 4', 5. Install two vinyl basement windows approximately 32" wide x 18" high. Interior Cono~;~ Ila~ 1. Install appmxlma,tely 8" thick 2b crushed ~tones under slab areas in basement and 1" floor. 2, Install sump ~'o~k (no sump pump) in basement and install pipe for radon gas to exterior of basement walls, 3. In~tail pleat, lo vapor banter and 1.5" Styrofoam insulation under slab in family room. Pour 3000PSI concrete with fiber reinforcement for basement and family mom slabs. 4. Pour 3000PSI ~ncrete with fiber reinforcement for basement and family room slabs. F~amino: Floors Waifs and Roof 1. Install sill sealer on top of basement walls. 2. In~tall pr~ure-a'~afad 2" x 6" pla.~t~e~ on w.a. ll~, 3, Frame floor over basement and 2'~ floor with 2" x 10", 16' O.C. floor and box joists. 4. Sheath floors with '~' T&G Aclvantek flooring, glued and nailed into place, 5, Frame all walls wib'q 2" x 4" x 8' studs 18', O.C., aJlow for window and door openings as per prints. 6, Install proper size headers over all openings for doors and windows. 7, Sheath exterior walls with 7116" OSB. - 8. Install tru~m= on roof and port,h, 4/12' plt~ with 1' overhangs on both ~idea: no overhang on gable ends. 9. Install mlcrolam beam in family re. om for second floor to dear span. 10. Install atapa to basement and 2"° floor (pre-built white pine with er~losed risers, 10' tread 7-1/2~ risers). 11. Install beam on front porch and two colonial-style, turned 4~ x 4' wood, paint - grade i:met~. 12, Sheath roof with5tS" OSB. '13. Install pressure-treated fitting strips on block wall areas In family room, Ro~dina 1; Install 151b felt paper on roof 2. Install drip edge around exterior perimeter of roof. 3. Install 25-year self. soling three tab fiberglass shingle8 with 5" exposure. 4. Install fiber type ridge vent on ridge of roof. 1. Reinstall doors and windows from existing home. Page Six 1. Install medium-priced double five Dutch-style vinyl siding and accessories ~ exterior of home (customer's choice of standard colors). 2, In~tall white oenfar Yen{ ~fflt off overinangs front and bacl(, 3. Install solid soffit on pomh ceiling and wrap beam with aluminum ~otlatock. 4. Install white aluminum fascia on eaves and gable face boards. 5. Install white ~eamless 5' K style aluminum gutters with hidden hangers and downspouts. 6. Install standard vinyl shuttem on all wlndow~ (customer's ohoiOe of sf-,nderd colors). Pore~h. 81dewelk and D~mk 1. Install approximately 4" thick, 3000PSI, fiber reinforced concrete on front por~. 2. Install concrete sidewalk horn porch to driveway approximately 3' wide x 15' long. 3. Install a pre,sure-treated wood deck on rear approximately 8' Wide x 12' long with steps and railing (picket style railing). Install 200 AMP meter basra, 200 AMP 40 position panel box. InStall receptacles, switches, etc. No fault recepta~ee in bath, two exterior and kitchen counter areaB, Interior end exterior lighting (as per allowance of $1,250.00 for lights and bath fans). a h'm'itches as per pdnts for IiglltJng, bath fans, and receptacles. a Wire for water heater, [3 Kitchen appliances: stove, range ho~d, refrigerator, dish washer, and garbage di,po~al. a Wire for Heat Pump, central air, a Connections f~r ~epfic system and alarm. [3 Wlrlng for ~A~II pump. [3 Wiring for washer and dryer, [3 Wire for intercol~necting smoke alarms. Page ~evan Install supply end drain lines for kltcl~en, one and one-half baths and laundry. Install bath, kit=hen, fixtures and faucets (as per installed allowances of $2,650,00), n One one-piece combination tub and shower unit with faucet and drain assembly, ~ TWO toilets with seats. ,-, Two vanities with tops, faLmsts, and drains. 3 install one double bowl kit~_.hen sink, with faucet~, drain and basket strainers. [3 Install one garbage disposal. c~ Hook up dishwasher. 3. Install laundry box for washer. 4. Install two fl'0st-fme exterior faucets. 5. Install pump and holding tank with controls and tie into exis~ well. 6. Hook sewer line in~ e~isting septic system with pump already in~--talled, 7. Install one 80-gallon water heater. 1. Insulate walls wfth 3.5' well spray celrulo~e Insulation. 2. Insulate ceilings with approximately g' R30 blown c~lulose insulation. 3. Insulate exterior perlrnster of box iolsts with fiberglass insulation. 1. Install neceuary clucts and grills for supply and return air. 2. Install electric heat pump properly sized to heat home. 3. Inst~ll central air properly sized to cool home. 1. Drywall all walls and ceilings with ½" dp/wall, except no drywall in basement, 2. Install water.resistant drywall in full bathroom. Ki~hen 1. Install kitchen ss per installed allowance of $4,800.00. a Install kitchen cabinets (no soffit). a Inetall Formloa countertope with 4' baokeplaeh, 1. Install appliances as per installed allowance of $2,600.00 a Install refrigeretor/freezer. a InStall elide-in range. a Install ductad range hood, ia Im(uall garbage diepoeeil. a Install dishwasher. T~lm Work and Interior Doom 1. Install paint-grade standard colonial-style 2-3/8" wide trim around doom and windows. 2. Build jambs for window extansions and install. 3. Install stools on windows. 4. Install paint-grade masonite, six panel, colonial interior doors as per print. 5. install paint-grade wood handrail on one ~lde ofthrse sets of stsps. 8. install paint-grade standard colonial style 3-1/4" baseboard In main living areas. 7. No trim work In basement area. 8, Install one shelf with clothes rod in each closet, 9. Install two access areas to attic and trim. p&lntlna 1, Paint walls and calling'one coat primer and two finish coats, latex vinyl fiat, one color. 2, Paint all interior trim one coat primer and two finish coats, Jatex enamel, and one color, 3, Palm exterior of riser and poron posts one coat primer and two finish coats, latex enamel, one color. Page Nine Jehu-tv .1,7.~ .2002 F!eorlnn 1. Im~nll all unclerlayment where needed for vinyl flooring, and floor flni,~hes -s per BIIow~nco of $3,800.00 inatalled price. 1. Inst~ll mlrmre, towel bars and toiie! paper holders per miscellaneous ins~-Ilad allowance 01' $400.00. Driveway 1. Cut area for drfveway approximately 1500 square feet x 6" thiok, 2. In~tall approximately 8' t:hiok 2e modified crushed stone and level AIIow~pc~ 1. No allowance for eeptlo system. 2. No allowanoe for Well or pump, 3. No allowance for landscaping. 4. No -Ilowanoe for lawn aoeding. Total E~flmmtad Coat Demolition of Home & Rebuild New Home:S136,180,00 As per bani; draw~ The~e prle, e~ are good for a period of 60 daya from above data. Page Ten The above pdces, SpecifiCations and conditions are satisfactory and we hereby accept, You are authorized to perform the work as speoitied. Payment will be made aa ou§ined above. This =ontract c, ons~tutes the sole and entire agreement between the parties hereto and no modifications of this contm~ shall be binding unless attached hereto and signed by all partle~ to t~e agreemenL The parties do set their hands and seals on the... 2002, day of ~ 'joaeph B. McCorkel ATTORNEY FOR GLA3:~qTZ'FF · WE ~ERU~BY C~ · 6~T~tq TO ~T~E COURT OF C0~4ON 9LEAS CIVIL DIVISION Cku~beT1 and County :, NO.01-1586 · Beverly A. ' ~.O, BOX 1394 · Carliole, PA 17013 De,end. ant (s) : 1001 YO~'HAVE BEEN SUED IN COU~T. If you winh to defend against the ¢la4m~ set forth in =h~ followlng pages, you must take =etlon wi=hin Cwen=y (20) days afuer uhio Complain~ ~n.d No=ice are served, by entering &written appearance personally or by attorney and filing in'writinD 'w~th the Court your de~enees or obJect~ons Co the claim~ sec forth against you. YOU are warne~ the~ if you.£ail ~o do so' the cue may proceed without y~u on~ a 'ju~m~= may be '~ntered ag~ins=.you by the Court withou~ fur=her notice for any money cla/med in the C[~lainU or for any o=her claim, or relief requested by the 91ain~iff. YOU may lo~e money or propmrt¥ or other rights important =o you. LAWYERS R~F~RAL.$ERVIC~ Cumberl~d County Bar Association 2 Liberty Avenue Cmxlisle, PA 17013-]387 717-2~9-3~6~ or 800-990-9108 ~.a hah demo.uclado a us~ecl en la oo~te. ' si ~ed ~i~a · de est~ ~s ~uestas ~ 1~ pages si~i~tes, ti~ ~inte (20) ~as de plazo ~ partir de la fec~ de la de~ ~ la notification. ~ce fal~a a~c~uar ~a e~cri~a o'~ perso~ o con ~ ~a~o y en~reg~ a la fo~ eScriCa ~us defenses o ~s objeci~es a las ~e~s en conga de ~ p~rso~. Sea avis~o ~e si usCe~ no se la corte Com~ me~&=s y puede comt~uar la d~da su~ ~ .p~vio avi~o o notification'. ~s, la corte to~s 1~ provisiones ~e esta ~a. Us~ ~ede per,er o sus propie~de~ u otros derechos ~ort~e~ para L~ BSTA D~ A ~ ~0~0 ~Ta~, BI NO TX~ ~0 0 Si ~ TT~ ~ DX~O $~XCI~E DE PA~ T~ Cumberlmul Count7 Bar A.oc~tio- 2 LJbert~ Avenue Carlble~ ]PA 17013-3387. 717.249-3166 or 800-990-9108 NATIONAL CITY MOP. TGAO~: IN THE.COURT O~F COMMON pTs,.AS OF : CUM~ C0~. P~S~V~ v, .. : ~ ACTION- LAW Def~.~ ,: NO. 0!-1~86 CIVIL TERM iN RE: 'DEYENDANT'S MOTION ~ON FOR L~ TO ~'CO~L~ ' ~0~ ~°~m ~.~., ~ o~ ~ · Che~NtlI~NJ 08034 NOTICE The mount of your debt 1~ as stated in the attached deeument. The wm~ of creditor to Whom the debt is owed is as named in the _*_o_*¢hed docament~ Unless you notif~ ~ Wiehb 30 da.va after receipt of lixis Notice and the attached doe~azeat that the validity of tho stated debt, or any portion of It, is disputed, we will assume that the debt'is v~a_ If you do n~,t~ us in wr~fing of a dbpute wM2h the 20 day period,.we writ obtain verification · of debt or a o y'O£a to yo' yon dO no* the debt, it is not an srlml.qsion of linbilit~r on ~rour part. Also, upon your written request wpehln thc 30 day period, we wlllprovide you with the n~me and address of the o *FJginal creditor if diibrant ~om the Current creditor. - If you notif~ us in ,,;ting ~ithln the 30 day period as stated above, we ~ cede collection of YOur debt, o? any disputed portion or. tt~ until we obtain the in~ormatian that is required and mall it to you. Once we hay° mailed to you the required informati~m, we will thee continue the colle~on of your debt.. This law firm is deemed to be a debt collector and this Notice and the attpe~J document is an attempt to collect a debt, and any information obtained will be uscd for that purpose. LAW O~'~'~CF_S OF MARKJ. UDREN I~/Mark J. Udren, 1040 N. Kt~g~ llighway, Stttte S00 Cherry ~ NJ O8034' (S~6) 1. .Plain=iff is the Corporation de_~i~nated as' juch in the caption on a preceding page. I~ Plaintif[ is ~ a~si~ee is ~ch by virtue o~ 2he follo~ng recorded ~ei~or~ 2. De,snOt(s) ie t~ ~d~l desi~te~ as such on set fo~h in the ca~tion, ~d ~nless desi~ated othe~ise, r~l o~er(~) ~d ~r=gagor(s) o[ the 9r~fses be~ foreclosed. he~=ter descried, at the i~t~ce ~d reT/est of · Defe~nt(s), Pla~tif~ (or its predecessor, he~inaEter called Plaintiff) lo,ed to the 'Def~d~t (s) the s~ appe~in~ on .Morgans. which ~rt~a~ ~s ~e~ted ~d delf~raa to ~l~nti~f a~ ~ec~i=y for the 'f~te~ess. Safd Mortg~e is inco~ora~ed herein ~. re~erenoe in ac=ord.~nue with PA,~.C.P. 1019 ~ i~o~tion, rggar~ng the Mortgage-being f~closed is as follows: MOZTC. A~n P]~EMISES: 2 .crossroads School 36 Watson Dri~ ~CiP~I~/~S~P/BOROU~H, Wes~ ~e~s~r0` D~E ~: 7/19/99 DA~ ~: 7/21/99 B~K= 1~8 P~E: 482 Th~ le~al description of the mortgaged prenuises is attached hereto and made par~ ~reof. 4. Said ~rtgage is in ~efa~t ~cause of ~ail~e c~ly ~%h ~e Cons~ction/Pe~en= Rider which m-~teS =ont~ction of the residues 's~11 be co~letsd on or before . 11/10/99.' ~. ~ a ~sul= of DeE~d~='s ~ail~e to co~l~ wi~ the mort. g=g~, ~l=i~tiff accelerated the ~,or=~age, which amOUnt to date has not been paid. 6. ~ the =e~s of ~he Mo~e, upon brea~ ~d ~ailure ~o ~e said brea~ after no, icc, all s~s sec~ed ~ sai~ ~rt~ge, t~ether with oth~ ehs~es au~orized by 'said Mortgage l~zed below, ~e i~ediately due. $. ~r demon4, ~e ~d~t (s) continues to fail or refuses to c~ply ~ ~h~ =e~ o~ the Mortgage ~ failing or refu~ =o pay ~ accelerated ~= due, ii.zed as o~ M~ch 8, 2001, as ~ilqws~ with the Principal of debt due and unpaid Intmreet at 7.875% from 2/~/oo to ~/a/o~ (the ~er diem interest accruin~ on ~his debt is $5.52 and ~ha= sum should be. added ~ach day after Title Report Court Costs (anticipated. excluding Sheri~f'~ sole Escrow Overdraft/(Balanoe) (The mop.sly escrow on this is $0.00 an~ that sum s~ould be a~d~d on t~e first of each m~nth after 3/8/01) $25,219.86 2,219.0~ 250.00 280.00 0.00 Charges (month17 1&re c~e of $0,00 each month after 3/S/01) 0.00 ~18.40 Cex~ora.teAcl~'ance Attorneys Fees (an~i¢ipste~ and actual · to 5% of pmincipal) TOTAL $29,748.29 The a~orney's fee se= forth abovm are in conform/=y mortgage do~m~nts and p~n~¥1vania law, mnd will be collected in ~he event-Of a =hird party ~.~rcha~er a~ Sheriff's ~&le. If the ~ert~age is reinstated prior to the sale, remson~le atto~ey'~ ~ees will be ch~ged ~ accor~ce with re~uctlon pr~sions of Ac~ 6, if applic~le, 9. No=ice of ~ten~ion to Foreclose ~r Act-6 o~ 19~4 of the ~n~=h of pe~syl~ia is noU .re~!red as ~he ori~l principal ~o~= ~ceeds the s~ o= $50,000.00. s~cifi~ ~ ~ P~syl~i= H~o~er's ~erg~cy '~si~=~ce Proart, Act 91 o~ 1983, '~S not ~ s~t because the Mortgage is ~e~ed by ~he Federal Housing ~inisUra~ion · ~d th~ ~iC~ is ~erefor~ ~t ~FO~,' t~ Plaintlff d~ds jud~ent, in r~, .=he. Def~t(S)' here~ in =he s~ o~ $29,748.29 pl~ ~terest, Co. lain=, ~ for foreclos~e ~ sale of t~ Mark J. U~ren, · ESQUIRE MAKK' J. UDP. EN & ASSOCIATES A~torney for Plaintiff Attorney I.D. ~o. 04302 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. TO: Defendant and Christopher Restak, Esq. You are hereby notified to reply to Oakwood Custom Homes' Reply within 20 days or a default judgment may be entered against you. C. Grainger Bowm~m~, Attorney for Plaintiff OAKWOOD CUSTOM HOMES, 1NC., Plaintiff, V. BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 OAKWOOD CUSTOM HOMES, INC's REPLY TO DEFENDANT'S NEW MATTER, REPLY TO COUNTERCLAIM AND NEW MATTER Reply to Defendant's New Matter 29. No responsive pleading required whereas paragraph 29 merely incorporates previous paragraphs.. 30. Denied. By way of further answer, the averment contained in paragraph 30 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. 31. Denied. By way of further answer, the averment contained in paragraph 31 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. 32. Denied. Further, the averment contained in paragraph 32 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied HB:43608v1 4116-01 and strict proof thereof is demanded. 33. Denied. By way of further answer, the averment contained in paragraph 30 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. 34. Denied. By way of further answer, the averment contained in paragraph 34 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. Reply To Defendant's Counterclaim No responsive pleading is required whereas paragraph 35 merely incorporates previous 35. paragraphs. 36. Denied as stated. By way of further answer, the Memorandum of Understanding, which was the result of a mediated settlement and forms the basis for this action seeking specific performance. Further, the Memorandum of Understanding settled all claims between the parties arising from the improvements to the property referenced in the Construction Agreement attached to Defendant's Answer, New Matter and Counterclaim. Further, the Memorandum of Understanding specifically recognized and references the mortgage foreclosure action docketed at before this Court at 01-1586. In Defendant's Answer, it is admitted that the amount of consideration promised by Plaintiff Oakwood Custom Homes in the Memorandum of Understanding is more than sufficient to satisfy the amount of Defendant Grindley's mortgage. See Complaint ~[ 15 and Answer ~[ 15. By way of further answer, the mortgage foreclosure action (originally commenced before this Court at 01-1586) did not allege that Defendant Grindley breached the mortgage based upon her failure to construct the single HB:43608v1 4116-01 2 family residence. Upon information and beliefi the original complaint in the mortgage foreclosure action was amended by National City Mortgage on or about January 9, 2002 stating a different claim that Defendant Grindley's failure to construct the single family residence was a breach of the mortgage agreement. Therefore, the Amended Complaint in Mortgage Foreclosure was filed after Plaintiff Oakwood and Defendant Grindley settled the claims arising from the Construction Agreement, which settlement provided sufficient funds to satisfy and discharge the mortgage. Moreover, the amended mortgage foreclosure complaint was filed after December 31, 2001, which was the date that settlement under the Memorandum of Understanding was to occur. See Oakwood's Complaint ¶¶ 6-8 and Grindley Answer ¶¶ 6-8. 37. Denied. The Construction Agreement is a written document which speaks for itself and any conclusions or characterizations of said document are specifically denied. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions between the parties relating to the Construction Contract. 38. Denied. By way of further answer, Defendant Grindley refused and denied Plaintiff Oakwood access to the project site. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. 39. Denied. By way of further answer, Defendant Grindley refused and denied Plaintiff Oakwood access to the project site. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and HB:43608v1 4116-01 3 actions between the parties relating to the Construction Contract. 40. Denied. Plaintiff Oakwood lacks sufficient knowledge or information to form a belief with regards to truth of the matters asserted by Defendant Grindley in paragraph 40 and demands strict proof thereof. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. 41. Denied. By way of further answer, the estimate attached as Exhibit C to Defendant's Answer, New Matter and Countemlaim is a written document which speaks for itself and any conclusions or characterizations of said document are specifically denied. By way of further answer, it is expressly denied that said estimate contains an accurate reflection of costs. 42. Denied. By way of further answer, the averment contained in paragraph 42 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. By way of further answer, the Memorandum of Understanding executed by PlaintiffOakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. 43. Denied. Plaintiff Oakwood lacks sufficient knowledge or information to form a belief with regards to truth of the matters asserted by Defendant Grindley in paragraph 43 and demands strict proof thereof. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. 44. Denied as stated. It is denied that the basis for the mortgage foreclosure action when it HB:43608v1 4116-01 4 was originally initiated was based upon Defendant Grindley's failure to satisfy the Construction/Permanent Rider. By way of further answer, upon information and belief the mortgage foreclosure complaint was amended to add this claim on or about January 9, 2002. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract and required settlement under said agreement on or before December 31, 2001. 45. Denied. By way of further answer, the averment contained in paragraph 45 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract and required settlement under said agreement on or before December 31, 2001. 46. Denied. By way of further answer, the averment contained in paragraph 45 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. New Matter Responsive to Defendant's Counterclaim 47. Defendant Grindley's counterclaims are barred by the applicable statute of limitations. 48. Defendant Grindley's counterclaims have been released through her entering into the Memorandum of Understanding with Plaintiff Oakwood Custom Homes, Inc. HB:43608v1 4116-01 5 49. Defendant Grindley's counterclaims are barred by the doctrine of estoppel based upon her refusals of Plaintiff Oakwood's tenders under the Memorandum of Understanding. 50. Defendant Grindley's counterclaims are barred by the doctrine of estoppel based upon her refusal and denial of Plaintiff Oakwood's access to the project site. Defendant Grindley's counterclaims are barred by the doctrine of accord and 51. satisfaction. 52. award. 53. Defendant Grindley's counterclaims are barred by the doctrine of arbitration and National City Mortgage's original Mortgage Foreclosure Complaint did not aver that Grindley was in default based upon her alleged failure to comply with the Construction/Permanent Rider provision of the mortgage. 54. National City Mortgage filed an amended Complaint on January 9, 2002 alleging for the first time that Grindley was in default of the mortgage based upon her failure to comply with the Construction/Permanent Rider. 55. Grindley's execution of the Memorandum of Understanding granted and conveyed to Oakwood the equitable title to the real estate. 56. Grindley's refusal of Oakwood's tender under the Memorandum of Understanding necessitates Oakwood's involvement in the mortgage foreclosure action. 57. Grindley is liable for Oakwood's costs and attorneys fees associated with protecting its equitable interest in the mortgage foreclosure action that is docketed before this Court at 01-1586. HB:43608v1 4116-01 6 WHEREFORE, Oakwood Custom Homes, Inc., respectfully requests that this Honorable Court decree and direct Beverly A. Grindley-Griffith as follows: 1. That the defendant, Beverly A. Grindley-Griffith, be enjoined and restrained temporarily until final hearing and permanently thereafter f~om conveying, selling, encumbering, or transferring the premises known as 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania. 2. That upon the payment by Oakwood of the consideration identified in the Memorandum of Understanding, defendant, Beverly A. Grindley-Griffith, be ordered to provide clear title to the property by special warranty deed, free and clear of all liens and encumbrances backed by an attorney certificate and that clear title to the property be provided no later than April 30, 2002. 3. That all counterclaims asserted by defendant, Beverly A. Grindley-Griffith, be dismissed with prejudice. 4. That such other and further relief that the Court deems appropriate be granted including costs, penalties, and attorneys fees and any other relief as permitted by law. POWELL, TRACHTMAN, LOGAN, CARRLE, I.D. # 15706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: February 13, 2002 HB:43608vl 4116-01 7 VERIFICATION I verify that the statements made in this Oakwood Custom Homes, Inc. 's Reply to Defendant's New Matter, Reply to Counterclaim and New Matter are true and correct to the best of my knowledge, information and belief. ! understand that any false statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. C. Grainger Bo~a~ Esq. Attorney for Oakwood Custom Homes, Inc. HB:43358v1 4116-01 CERTIFICATE OF SERVICE AND NOW, on February 13, 2002, I hereby certify that I have served a tree and correct copy of the within Oakwood Custom Homes, Inc.'s Reply to Defendant's New Matter, Reply to Counterclaim and New Matter upon the following person(s) by regular first class United States mail, postage prepaid. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 C. Grainger Bo~tn HB:43613v1 4116-01 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 PRAECIPE TO SUBSTITUTE VERIFICATIONS TO THE PROTHONOTARY: Kindly substitute the attached verifications of Douglas L. Zook, President of Oakwood Custom Homes, Inc. for C. Grainger Bowman's verification of the Complaint and the Reply to Defendant's New Matter, Reply to Counterclaim and New Matter. POWELL, TRACHTMAN, LOGAN, CARRLE, C. Granger Bowman I.D~ 15706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: February 18, 2002 HB:43632v1 4116~01 02./16/02 15:31 FAX 7174920097 OAKWOOD 02/1S/fl~ 1~:44 ~_4~. ~0 t ~,ri~*a~t t1~ st-~eaae~t~ ~ in ,'hi,, Oa/ns~o8 Cu..~tom I~ome~..l~c. '~ Compl,',mr are ~z=~ an~ c. on-ec~ to th~ '~-s~ o¢ m.~ k~,~l.~l.S~, L~'m~tion '°~a b~- I understa~ thaC say raise sta~m,-,'m, m~l.~ aru s~b~ecT ~ tb~ l~.kies of 18 P a-C.S. §~.904 z~l~i~ to ~.wom falaiO, c~iou 02/16/02 15:31 FAX 7].74920097 0AK~00]) ~]02 b~/1S/-02 13:43 ~ CERTIFICATE OF SERVICE AND NOW, on February 18, 2002, I hereby certify that I have served a tree and correct copy of the within Praecipe to Substitute Verifications upon the following person(s) by regular first class United States mail, postage prepaid. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 Anth~y S. Potter HB:43613vl 4116-01 Oakwood Custom Homes, Inc., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY Beverly A. Grindley-Griffith DOCKET NO. 02-245 Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S NEW MATTER COMES NOW, This twenty-second 22nd day of February, Defendant, Beverly A. Grindley-Griffith, by and through her attorney, Christopher Restak, and files the following Answer to the New Matter of Plaintiff, as filed on February 13, 2002. 47. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. By way of further answer, Plaintiff was properly served with a duly executed Writ of Summons on 06/28/00, thereby tolling the statute of limitations. 48. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 49. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 50. Denied. Defendant's opposition to Plaintiff's entry to the project site was based upon Plaintiff's inability to obtain the required inspections and approval of Plaintiff's noncompliant work. Defendant exercised her right to exclude Plaintiff from the project site, in good faith and for cause, consistent with her rights under her construction contract and consistent with her obligations under her mortgage contract. 51. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. By way of further answer to Plaintiff's averments, Defendant has never recognized the document (Memorandum of Understanding) as being a completely integrated expression of a final agreement between the parties. Defendant avers that Plaintiff's argument, that an accord and satisfaction has occurred, is in error and not applicable to the facts of this case. 52. Denied. The averment of paragraph 52 is a legal conclusion to which no responsive pleading is required. To the extent that it is deemed factual it is denied and strict proof of this averment is demanded. 53. Admitted. 54. Admitted. 55. Denied. Defendant has, at no time, prior to or contemporaneous with the signing of the document, ever granted Plaintiffan equitable right in the property known as 36 Watson Drive, Carlisle, Pennsylvania, also known as Lot 2, Crossroad School Road, Carlisle, Pennsylvania. 56. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 57. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. WHERFORE, Defendant Beverly Grindley-Griffith, requests that this Honorable Court to dismiss Plaintiff's claims, with prejudice, and enter judgment in her favor and against Plaintiff. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA. Supreme Court I.D.# 81514 Attorney for Defendant VERIFICATION I, the undersigned, Beverly A. Grindley, hereby certify that I am authorized to verify this pleading, on my own behalf. I hereby affirm that the facts contained in the foregoing Answer are tree and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: 'Z- - 7_.2~-C> 2 CERTIFICATE OF SERVICE I hereby certify that I served a tree and correct copy of the foregoing Answer to Plaintiff's Reply upon, C. Grainger Bowman of Powell, Trachtman, Logan, Carle, Bowman & Lombardo, located at 114 North Second Street, Harrisburg, Pennsylvania 17101, by United States mail, first class, postage prepaid, on February 22, 2002. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA. Supreme Court I.D.# 81514 Attorney for Defendant POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, 1NC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, Plaintiff, Oakwood Custom Homes, Inc., by and through its undersigned counsel, files this Motion for Judgment on the Pleadings pursuant to Pa. R.C.P. 1034 and in support thereof avers as follow: I. Procedural History. 1. Plaintiff, Oakwood Custom Homes, Inc. ("Oakwood") commenced this action on January 17, 2002 seeking specific performance of a November 15, 2001 mediated settlement agreement that resolved all disputes between Oakwood and Beverly A. Grindley-Griffith ("Grindley") arising from a construction contract between the parties. A true and correct copy of this Complaint is attached as Exhibit "A" and incorporated as if set forth at length. 2. On or about February 8, 2002, Grindley filed her Answer with New Matter and a Counterclaim. A true and correct copy of Defendant's Answer, New Matter and Counterclaim is HB:43635V1 4116-01 attached as Exhibit "B" and incorporated as if set forth at length. 3. On or about February 15, 2002, Oakwood filed its Reply to Defendant's New Matter, Countemlaim and New Matter. A true and correct copy of Plaintifl~s Reply to Defendant's New Matter, Counterclaim and New Matter is attached as Exhibit "C" and incorporated as if set forth at length. 4. On or about February 23, 2002, Grindley filed her Answer to Oakwood's New Matter. A true and correct copy of Defendant's Answer to Oakwood's New Matter is attached as Exhibit "D" and incorporated as if set forth at length. II. Factual Background. 5. In her Answer, Grindley admits all material facts necessary to demonstrate Oakwood's entitlement to specific performance of the mediated settlement agreement entered into between the parties. 6. In Paragraphs 3 and 4 of Defendant's Answer, Grindley admits that on Thursday, November 15, 2001, she engaged in a mediation of several claims between Oakwood and Grindley relating to improvements and construction at her property located at 36 Watson Drive, in the Township of West Pennsboro, in the County of Cumberland, Pennsylvania. 7. In Paragraph 6 of Defendant's Answer, Grindiey admits that at the conclusion of the mediation she signed the Memorandum of Understanding. 8. In Paragraph 7 of Defendant's Answer, Grindiey admits that she agreed to transfer title to the real property located at 36 Watson Drive West Pennsboro Township, Cumberland County, Pennsylvania to Oakwood by special warranty deed, flee and clear of all liens and encumbrances. HB:43635v1 4116-01 2 9. In Paragraph 8 of Defendant's Answer, Grindley admits that under the terms of the agreement closing on the real estate was to occur on or before December 31, 2001. 10. In Paragraph 9 of Defendant's Answer, Grindley admits that the agreement required her to give two weeks advanced notice of the precise date for closing. 11. In Paragraph 10 of Defendant's Answer, Grindley admits that she breached the agreement by failing to provide notice of the precise date for closing. 12. Grindley asserts that her failure to perform in accordance with the mediated settlement agreement was somehow "excused" by an amended mortgage foreclosure action. Defendant's Answer, New Matter, and Counterclaim, ¶ 10. However, the amended mortgage foreclosure action was not filed until on or about January 9, 2002. See National City Mortgage v. Grindley, Docket No. 01- 1586 (Cumberland County C. P.). 13. In Paragraph 11 of Defendant's Answer, Grindley admits that she retained current counsel, Christopher T. Restak, Esquire, as counsel for the matters that were already settled by the November 15, 2001 agreement. 14. In Paragraphs 16 and 17 of Defendant's Answer, Grindley admits that she refused to attend settlement in accordance with the agreement. 15. In Paragraph 20 of Defendant's Answer, Defendant admits that Oakwood made tender upon Grindley. 16. In Paragraph 21 of Defendant's Answer, Grindley admits that she refused the tenders made by Oakwood under the mediated settlement agreement. 17. In Paragraph 27 of Defendant's Answer, Grindley admits that National City Mortgage HB:43635v1 4116-01 3 has filed a mortgage foreclosure action against the property. 18. In Paragraph 28 of Defendant's Answer, Grindley admits that the amount of consideration promised by Oakwood in the November 15, 2001 agreement is more than sufficient to satisfy the amount of Grindley's mortgage. 19. On February 20, 2002, Oakwood filed a petition to intervene in the mortgage foreclosure action in order to protect its equitable title to the property. 20. On February 22, 2002, this Honorable Court issued a Rule to Show Cause why Oakwood should not be permitted to intervene in the mortgage foreclosure action and why the proceedings should not be stayed until the action seeking Specific Performance docketed at 02-245 (Cumberland County C. P.) is resolved. The rule is returnable on March 1 I, 2002 at 9:30 A.M. in Courtroom #5. 21. The November 15,2001 Memorandum of Understanding signed by Oakwood and Grindley expressly authorizes enfomement of the agreement through specific performance. 22. Defendant in her New Matter asserts affirmative defenses relating to Oakwood's alleged failure to perform in accordance with the construction contract entered into between Grindley and Oakwood. See Defendant's Answer, New Matter, and Counterclaim, ~[¶ 30 - 32. 23. All claims and disputes between Gfindley and Oakwood relating to the construction contract were settled, released, and discharged after the mediation by the Memorandum of Understanding executed by the parties. See Defendant's Answer, New Matter, and Counterclaim, ~ 11 24. Defendant in her Counterclaim asserts claims based upon Oakwood's alleged failure to perform in accordance with the construction contract entered into between Grindley and Oakwood. HB:43635v1 4116-01 4 See Defendant's Answer, New Matter, and Countemlaim, ¶¶ 36-46. 25. All claims and disputes between Grindley and Oakwood relating to the construction contract were settled, released and discharged after mediation by the Memorandum of Understanding executed by the parties on November 15, 2001. See Defendant's Answer, New Matter, and Counterclaim, ~[ 11. 26. Simultaneously with the filing of this motion, Oakwood is filing a Motion to File the Memorandum of Understanding under seal as Exhibit "A" to its Complaint. 27. The pleadings are closed and the time exists within which to dispose of this motion so as not to delay trial. 28. There are no genuine issues ofmateriai fact to be tried. 29. Plaintiff is entitled to judgment as a matter of law on the pleadings. III. Related Cases and Prior Decisions. 30. Pursuant to C.C.R.P. 206-2(a) Oakwood notifies the Court that a mortgage foreclosure action relating to the real property that is the subject of the instant action for specific performance is currently pending against Grindley before this Honorable Conrt. See National City Mortgage v. Grindley, Docket No. 01-1586 (Cumberland County C. P.). In that action, the Honorable J. Wesley Oler, Jr., Judge and the Honorable George E. Hoffer, President Judge on or about December 17, 2001 denied Grindley's motion for summary judgment and granted plaintiff's, National City Mortgage, motion for leave to amend its complaint. 31. As previously averred, a rule to show cause why Plaintiff should not be permitted to intervene and why the mortgage foreclosure action should not be stayed until resolution of this matter HB:43635v1 4116-01 was issued by this Honorable Court on February 22, 2002. The Rule is returnable on March 11, 2002 at 9:30 A.M. in Courtroom Number 5, WHEREFORE, Plaintiff, Oakwood Custom Homes, Inc. respectfully requests that this Honorable Court issue a decree as follows: a. directing defendant to specifically perform the terms of the November 15, 2001 Memorandum of Understanding and by good and sufficient deed convey the premises located at 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania and every part thereof with marketable title free of all encumbrances and liens to Plaintiffin fee simple and legally sign, acknowledge and deliver the deed to plaintiffin proper legal form and accept in consideration thereof the amount of compensation agreed to in the mediated Memorandum of Understanding; b. directing defendant to discharge the mortgage and the mortgage foreclosure action brought by National City Mortgage and pending at National City Mortgage v. Grindley, Docket No. 01-1586 (Cumberland County C. P.); and c. awarding such other and further relief that the Court deems appropriate including costs, penalties, and attorneys fees and any other relief as permitted by law. HB:43635v1 4116-01 6 Date: February 26, 2002 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By C!i"~r~ I.D. # 15706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 HB:43635v1 4116-01 7 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Porter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Artomeys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. ~ NOTICE TO DEFEND YOU HAVE BEEN SUED 1N 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 an 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 aj udgment may be entered against you by the court without further notice for any money claimed in the complaint or for any claim or relief requested by the defendant. 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 HB:43359v1 4116-01 TRUE COPY FROM RECORD It~ Til~tllnony ,#1tereof, I here unlo set my hand AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar action como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado pot el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO 1MMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date: January 16, 2002 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. C. Grainger Bowman I.D. # 15706,6,6~ Anthony S. Potter I.D. #75903 114 North Second Street Harrisburg,.PA 17101 (717)'238-9300 Attorneys for Oakwood Custom Homes, Inc. HB:43359v1 4116-01 2 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, 1NC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. COMPLAINT AND NOW, Oakwood Custom Homes, Inc., by and through its undersigned counsel, files this Complaint seeking specific performance of a November 15,2001 agreement for the transfer of a parcel of real property located at 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania, and in support thereof avers as follows: 1. Plaintiff is Oakwood Custom Homes, Inc. ("Oakwood") a Pennsylvania Corporation with offices located at P.O. Box 358, Mount Joy, Pennsylvania that, among other things, builds custom homes. 2. The defendant is Beverly A. Grindley-Griffith ("Grindley") an adult individual who upon information and belief resides at 58 South Corporation Street, Newville, Pennnsylvania 17241 and also has an address listed as PO Box 1394, Carlisle, Pennsylvania 17013-6394. 3. Grindley was and still is the owner of the prebaises known as 36 Watson Drive, in the HB:43305v1.4116-01 Township of West Pennsboro, in the County of Cumberland, Pennsylvania ("property"). 4. On Thursday, November 15, 2001, plaintiff and defendant engaged in mediation of several claims between the parties relating to improvements and construction that occurred on the property. 5. At the mediation, Grindley was represented by Peter J. Russo, Esquire ("Russo") and Oakwood was represented by C. Grainger Bowman ("Bowman"). 6. At the conclusion of the mediation, Grindley and Oakwood entered into a four page written settlement agreement dated November 15,2001 in the form of a memorandum of understanding ("agreement"). The agreement was executed and initialed by Beverly Grindley on each and every page, signed by Attorney Russo as a witness, executed and initialed by the President of Oakwood on every page, and signed by Bowman as a witness. (A copy of this agreement is attached as Exhibit "A" to the copy of the Complaint served upon Defendant and is incorporated by reference into this complaint. Because the agreement contains a confidentiality clause prohibiting either party from disclosing the terms of the settlement, the agreement is deliberately excluded from the copy of the Complaint filed with the Prothonotary of Cumberland County. Upon order of the Court, however, a true and correct copy of the executed agreement will be made available for in camera review.) 7. In the written agreement, Grindley agreed to transfer title to the real property located at 36 Watson Drive, West Pennsb0ro Township, Cumberland County, Pennsylvania to Oakw0od by special warranty deed, flee and clear of all liens and encumbrances. 2001. HB:43305V1 4116-01 Under the terms of the agreement closing was to occur on or before December 31, 2 9. The agreement required Grindley to give Oakwood two weeks advance notice of the precise date for the closing. Grindley failed to provide Oakwood notice of the closing date in accordance with the 10. agreement. 11. Sometime after entering into the agreement with Oakwood, Grindley retained Christopher T. Restak, Esquire ("Restak") as counsel tbr the matters that were settled by the November 15, 2001 agreement. (A copy of a December 10, 2001 letter from Restak to Bowman is attached as Exhibit "B" and is incorporated by reference into this complaint.) 12. On Monday, December 17, 2001, Oakwood sent a Notice of Closing to Grindley scheduling the closing for 10:00 a.m. on December 31, 2001 at the law offices of Peter Russo. (The Notice of Closing was sent by counsel for Oakwood to Grindley, Attorney Russo, and Attorney Restak. A copy of the December 17, 2001 Notice of Closing is attached as Exhibit "C" and is incorporated by reference into this complaint.) 13. On December 17, 2001, Oakwood also sent a separate letter to Attorney Restak reiterating that Oakwood did not wish to renegotiate the terms of the agreement and enclosing a copy of the Notice of Closing. (A copy of the December 17, 2001 letter is attached as Exhibit "D" and is incorporated by reference into this complaint.) 14. On D~cember 19, 2001, 0akwood in accordance with the agreement faxed a certificate of liability insurance naming Grindley as an additional insured to Attomey Restak. (A copy of the December 19, 2001 fax transmission along with the Certificate of Liability Insurance is attached hereto as Exhibit "E" and is incorporated by reference. HB:43305vl 4116-01 3 15. On December 24, 200l, Oakwood by and through its attorney spoke with both Attorney Restak and Attorney Russo advising them that Oakwood intended to appear at the real estate closing scheduled for December 31, 2001 in order to perform the terms of the agreement. 16. By letter dated December 27, 2001, Grindley, by and through Attorney Restak, informed Oakwood that Grindley would not attend settlement because the agreement "does not address her concerns, nor her financial exposure in this case...." (A copy of the December 27, 2001 letter is attached as Exhibit "F" and is incorporated by reference.) 17. On December 28,2001, Grindley by and through her counsel, sent a facsimile transmission repeating that she would not attend the settlement on December 31, 2001. (A copy of the December 28, 2001 fax is attached as Exhibit "G" and is incorporated by reference.) 18. On December 28, 2001, Oakwood sent a letter to Attorney Restak noting that Grindley's refusal to perform in accordance with the terms of the agreement constitutes a material breach and indicating that Oakwood is ready, willing and able to perform the terms of the agreement. Moreover, the December 28, 2001 letter indicated that Oakwood intended to seek specific performance of the agreement. (A copy of the December 28, 2001 letter is attached as Exhibit "H" and is incorporated by reference.) 19. On December 28, 2001, Oakwood sent a letter to Attorney Russo noting that the settlement scheduled, for December 31,2001 Was cancelled by Grindley and reiterating that Oakwood was ready, willing and able to perform the terms of the agreement. In addition, the letter indicated that Oakwood would seek specific performance of the agreement. (A copy of the December 28, 2001 letter is attached as Exhibit 'T' and is incorporated by reference.) HB:43305v1 4116-01 4 20. Oakwood, by its attorney, has made tender in the aforesaid manner upon Grindley through her attorneys. 21. The aforementioned tenders were refused by Grindley. 22. Oakwood's tenders were refused because of Grindley's apparent erroneous belief that the agreement she executed on November 15, 2001 with the advice of counsel is not binding. 23. The November 15, 2001 agreement entered into between Oakwood and Grindley provides that time is of the essence. 24. Oakwood was and still is ready, willing, and able to make settlement and complete the transfer of the property in accordance with the terms of said agreement, but Grindley has refused and still refuses to carry out the said agreement or to sign, execute, and deliver the special warranty deed for said property as contemplated by the agreement. 25. Oakwood has satisfied all conditions precedent to bringing this action. 26. Upon information and belief, Grindley has a mortgage on the property with National City Mortgage. 27. Upon information and belief, National City Mortgage has filed a mortgage foreclosure action against Grindley in this Court and said action is docketed at 01-1586. 28. Upon information and belief, the amount of consideration promised by Oakwood in the November 15, 2001 agreement is more than Sufficient to satisfy the amount of Grindley's mortgage. WHEREFORE, Oakwood Custom Homes, Inc., needing equitable relief, respectfully requests that this Honorable Court decree and direct Beverly A. Grindley-Griffith as follows: 1. That the defendant, Beverly A. Grindley-Griffith, be enjoined and restrained HB:43305v1 4116-01 5 temporarily until final hearing and permanently thereafter from conveying, selling, encumbering, or transferring the premises known as 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania. 2. That upon the payment of the consideration identified in the Memorandum of Understanding, defendant, Beverly A. Grindley-Griffith, be ordered to provide clear title to the property by special warranty deed, free and clear of all liens and encumbrances backed by an attorney certificate and that clear title to the property be provided no later than April 30, 2002. 3. That such other and further relief that the Court deems appropriate be granted including costs, penalties, and attorneys fees and any other relief as permitted by law. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. -C. Grai~er ~iow}n~'n I.D. ~,1/5706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: January 16, 2002 171B:43305v1 4116-01 6 EXHIBIT "A" [Deliberately Excluded as per Paragraph 6.] CIIP, I~TOP! II,.;i~ RESTAK ATTORNEY AY LAW December 10, 2001 By FacsimUp: ('71"/) 238-9325 Originnl by mail. C.n'alnger Bowman, Esq. Powcll, Trachtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly G-rindley C, riffith and Oakwood Custom Homes Dear Attorney Bowman: I wanted ta thank you for the time that you spent speaking with me on Thursday. You made it clear that your client considers the arrangement with Beverly as final and binding and that you would vigorously oppose anyone looking to "upset" that agreement. I appreciate your candor and want to assure you that I ~m not out to achieve that objective, to an upset any agreement that was rendered in good faith and with benefit of counsel. I do intend however, to satisfy my client's request that I look into the particulars of the arrangement that she understood she was agreeing to on November 18 and to assist her in achieving that objevfive. I I~ve spoken with Attorney Peter Rus~o, who repre*ented Boverly at the Mediation Hearing, and was gratified by his apparent cordiality and willingness to explain to me how the meeting was conducted. Peter was also candid in his position that he would not care to represent Beverly in case she opted to remind the agreement. I am including a copy of the brief note that I sent to Peter, following our conversation, so that you can appreciate the limited extent to which we have been able to discuss the matter. I wanted to outline some of the issues that my client has with the proposed mediation settlement, between herself and your client, Oakwood Custom Homes (Oakwood), in the hope that we can resolve what issues appear to renmin open with that settlement. The referenced mediation hearing took plaCe on NoVember 18, 200i, 'resulting in a hand written Memorandum of Understanding (Memo) between the two prospective parties, Grindley and Oakwood, concerning the resolution of a construction contrac~ agreement ! that both sides had entered into on or about February 15, 1999. Given the long history of documented etnstruction defects that Oakwood appears to have been responsible for and the faot that the agreement contemplates a confidentiality component, whereby Beverly (and/or her agents) is prevented from discussing its particulars, she is left in a rather untenable position regarding any future prospects for building a home. ! was able to speak with Steve Yingst, a structural engineering consultant, retained by Beverly, and have read his reports. I was duly impressed by his rather lengthy recitation of significant construction defects. The type defects that Yingst identified are defects that should not be associated with suoh a relatively simple project. I think that one can fully appreciate Mrs. Grindley's reluctance to remain mum about the negotiations and the events preceding the mediation hearing. The amount of the settlement, one reached al~cr a marathon session of complex negotiations and soribcd by informal addenda, will not begin to compensate Beverly for the loss of the real estate that she is asked to abandon. Furthermore, she is asked to relinquish her site to the very party who purportedly is solely responsible for its current, non-saleable condition. Beverly never understood this to be the case, and claims that whatever compliment role she was asked to adopt, may have simply been thc result of apparent overreaching on the part of a mediator who was understandably frustrated with the length of time devoted to the negotiations. One can appreciate that there must have been a great deal of pressure, cxerted at the last minute, to achieve some written memorandum, given the length of time, and money that had already been devoted to the meeting. The 'billing records for the hearing indicate that upwards of twelve hours was spent in attempting to dispolsc with Beverly's problem. Immediately £ollowin~ the signing of the memo Beverly contacted Mr. Russo, later the next morning, (November 19), and indicated her intention 1:o either continue the negotiations, with Oakwood, or to proeecd to sgmc further stage of representative adjudication, the draft of the current Memo notwithstanding. It was at this time that Russo apparently informed Beverly that he could not represent her in that effort, and recommended that she seek outside counsel. A call, to my officc, by Beverly, soon followed. With the above recital as an historical background, I became involved in Beverly's case and immediately began to obtain the records of the negotiations. 1 have the following questions, and observationa, that I would like to discuss with you in the hopes that we can, for once mad for all, finalize a solution consistent with our client's mutual interest and well being. Beverly's primary concerns involve certain aspects of the Memo that directly relate to her responsibilities to her leader, National City Mortgage, who still retains a mortgage on.the property. As a consequanee of her relationship with her lender, a lender intent upon foreclosing on'the property due to the incomplete work, she does not now wish .to voluntarily relinquish the property bul hopes to be able to continue to satisfy her current mortgage, so as to be able to either pay off Oakwood for the fair market value of their work, if any, or to have someone properly complete the work that was originally contemplated and contrac~cl for by these parties (Oakwood and Orindley). In light of ~our client's immediate response and return to the Schoolhouse Road site, following the mediation session, Beverly is COnfident that Oakwood wants to see thc project, at long last, completed. 'Would you object to attempting a clarification o£ the language of the Memo, as it relates to Beverly's proscription from speaking about this project with necessary, outside contractors? Since Oakw°°d erected the improvements on Beverly's property for her benefit, she must be able to openly discuss the possibility of having another complete thc work, if Oakwood is unwilling, or unable, to do so. As a consequence she cannot remain silent as to construction details and specifications, as addressed in the Memo. Beverly has been independently contacted by thc Department of Honsing and Urban Development, and she has agreed to assist them in determining why this project has required such an extensive degree of due diligence on the part of outside experts. She cannot adeqtmtely explain the situation and why she is being asked to not proceed with the necessary repaJxs, on her own initiative, rather than shnply turn the project over to Oakwood without going into some detail concerning the construction history of this site, as it relates to Oakwood's work. Beverly can only resolve the mat~, by speaking £recly to the investigators who apparently are intent upon appearing at the foreclosure hearings, concerning the unique construction !stoblems facing this residence. It seems clear that any subsequent purchaser of this home may need to know the reason for the delay in completion of this otherwise uncomplicated project. A strict reading of the Memo would prevent her fi.om speaking freely about her personal history with this site. Beverly and her husband had chosen a unique site for the dream home that their budget, and means, would allow, only to be frnswated by the efforts of an allegedly ill equipped contra~or. The Memo stated certain specific terms whereby both Orindley and Oakwood agreed to settle the matter, concerning thc numcrons construction defects that were present in the single-family residence that Oakwood had attempted to construct on behalf of my client. The memorandum went on to outline duties and responsibilities for both parties as well as a time schedule for performance of these duties. Items addressed in the memo, other than an agreed upon price of Forty-Five Thousand dollars ($45,000.00), to be paid to Grindley by Oakwood, included provisions for property tax proration, cessation of future action against either party, and the necessity to retain the confidentiality of the agreement by and between the parties to the memo. According to some of the particulars of the Memo, Beverly is to be named as an additional insured on Oakwood's certificates of insurance, prior to Oakwood initiating any further work on her property. As you may already be aware, Oakwood proceeded to begin significant remedial work on the faulty foundation system without satisfying this rether simple administrative duty. No right of entry existed, for Oakwood, on to Grindley's property with or without the Memo, unless evidence of this insurance arrangement had been obtained. Has Oakwood made adequate arrangements~ consistent .wi~h. the Memo's directive, concerning the additiomil insured provisions? Lastly, and most important, will Oakwood agree to a completion schedule, that contemplates Orindiey as the ultimate owner of the improvements? I hope that we can see clear to answer these questions and to help Beverly and John reach an equitable settlement in their efforts to complete this project. I trust that given the nature of this issue and my admittedly late introduction to the ongoing negotiations between these parties, I can rely on your prompt respond. Sincerely yours, Cc: Beverly Grindley (Griffith) POWF- L, TRACHTMAN, LOGAN, CAP'~LI~, BOWMAN O LOMBARDO 1 14 NORTII SECOND STREI!T IJiAI~RISI{URG, PA 17101 (717) 238-9300 FACSIMILE (717) 238-9325 December I7, 2001 Beverly A. Grindley Griffith 58 South Corporation Newville PA 17241 Re~ Oakwood Custom Homes v. Beverly A. Grindley NOTICE OF CLOSING ON DECEMBER 31,2001 Dear Ms. Grindley Griffith: On November 15,2001 you executed a settlement agreement in the form of a Memorandum of Understanding, resolving all matters with Oakwood Custom Homes. Pursuant to paragraph 5 of the Agreement, the real estate closing is scheduled to take place on or before December 31,2001. Pursuant to paragraph 9 of the Agreement, you are required to give Oakwood Custom Homes at least 2 weeks' notice of the date of closing. Therefore, we expected to receive your notice of the date of closing on or before Monday, December 17, 2001. If for any reason Oakwood Custom Homes does not receive from you the notice of closing, we have'dec!ded to give you notice of the time and place where closing will take place for.the real estate to evidence our intention to close, and carry out the terms of the Memorandum of Understanding. Oakwood Custom Homes will appear for the closing on December 31, 2001 at 10:00 AM in the law offices of Peter Russo, Esq. inasmuch as he is required to give an attorney's certificate of clear title for this transaction. If this time and place for settlement in Cumberland County differs 'from youi' plan, please let me know right away. I am sending a copy of this letter to Christopher Restak, Esq. and Peter Russo, Esq. for their information. t~everty tarlllCllcy ~Jrlllltn December 17, 2001 Page 2 Thank you for your anticipated cooperation. CGB:khd cc: Peter Russo, Esquire Christopher Restak, Esquire (VIA FAX and US MAIL) Identical copy of this letter is being sent to: Beverly A. Grindley Griffith P.O. Box 1394 Carlisle PA 17013-6394 Pow~ TRACHTMAN, LOGAN, CA' BOWMAN ~ LOMBARDO 114 NORTII SECOND STREH'I (717) 238-9300 F^cstm[l? (717) 238-9325 December 17, 2001 LE, (610) ~54-9700 FAX (610) 354-9760 (856) 663-002 t Via Facsimile/First Class Mail Christopher T. Restak, Esq. 213 Carlisle Street Hanover PA 17331 Dear Chris: Re: Grindle¥/Oakwood Custom Homes, Inc. Thank you for our various conversations regarding the Grindley/Oakwood transaction. As I have said over the phone, Oakwood Custom Homes intends to proceed with the resolution that was achieved in the Memorandum of Understanding of November 15, 2001. Oakwood does not wish to renegotiate the Memorandum of Understanding. The Memorandum of Understanding calls for the setting of a date, time and place for closing on the real estate. Mrs. Grindley-Griffith was to have given Oakwood a 2 week advance notice of closing (and the closing date was identified in the Memorandum of Understanding as December 31). Because today is December 17, I have taken the step.to give Mrs. Grindley-Griffith notice of the date, time and plac~ of the closing in m3/'attached letter of December '17, setting December 3 l at 10 AM in the law offices of Peter Russo for these purposes. I enclose a copy of that Notice herewith for you. You and Peter Russo and I can talk more about the logistics o£ this closing on December 24, 200i by phone. At your request, l'will speak to my client about a new date for the closing, in view of the fact that December 31 is a very busy time of the year. We do look forward to closing on this real estate transaction, however. Christopher 1. lq. estak, Esq. December 17, 2001 Page 2 Thank you. Sincerely yours, C:~ *** TX REPORT TRANSMISSION OK TX/RX NO 4145 CONNECTION TEL 6339143pp411601 SUBADDRESS CONNECTION ID ST. TIME 12/19 17:31 USAGE T 01'32 PGS. SENT 2 RESULT OK LAw Po r LL, TmtCnTt4AN, LOOAN, CAmm, , BOWFsAN LOI 2aARDO A, PRo~q~gs~o~. ;35-95O0 (~17) 2~&93~5 FROM: PHONE: SUBJECT: C. Crrainger Bowman (717) 238-9300 DATE: CLIENT 1V[ATTER: December 19,2001 4116-01 TOTAL NUMBER OF PAGES INCLUDING THIS PAGE: . PLEASE DELIVER AS SOON AS POSSIBLE TO: RECIPIENT COMPANY FAX NO. PITONE NO. Chris Restak 633-9143 637-5188 If you do not receive all the pages, please call (717) 238-9300. As per our telephonc conversation, attached please find thc ACORD form of certificate of liability insurance, which evidences that Mrs. Grindley-Griffith is an additional insured. At your request, I asked that this ACORI) form be issued to my attention so that I could send it to you to satisfy your client that she was identified as a certificate holder. Please let mc know if you have any questions about it. Thank you. Grainger[.i. EXHIBIT ACORD. PRODUC~ 101 ~ood Dr, P 0 Bux Lancaster PA 17607 ~none: 717-397-75~1 P.0. Box 358 Mount JoT PA 17552-0358 CERTIFICATE OF LIABILITY INSURANC , 12/19/0! THIS CER1]FICATE ts ~SUED AS A MATTER OF INFORMAI~ON ONLy AND CONFERS NO RIGHT8 UPON l~H CERTIFICA~ HOLDEP~ THIS CERllF~CATE DOES NOT AMEND, EXTEND OR · ALTER I~E COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE COVERAGES co~c~ G~ ~,1 Q370153558 01/01/01 01/01/02 OCCUR Q010140642 Q881600416 ol/ol Ol/Ol/O2 04/t6/01 04/16/02 000 ~L~C~ACCI~ ~ I81007000 IL O~S~S.-~O~ S 100, 000 -- Amount $65,000 CERTIFICATE HOLDER J N j Abbi',',vdAi. IN,~JRED; INSURER ~ -- CANCer !-.~..'~ON David M. S~th ©ACORD CORPORA~ON 1988 ACORD 29.-S (7197) CHRISTOPHER RESTAK Admitted to Practice in PA, MD and NY 213 Carlisle Strcct, ltnnovcr, PA 17331-2410 Phonc: 717-637-5188 · Fax: 717-633-9143 * Emal[: ctrestak@nctrax.net December 2J, 2001 By Facsimile: (717) 238-9325 Original by mail. C,-rainger Bowman, Esq. Powell, Tmchtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Griffith and Oakwood Custom Homes Dear Grainger: Subsequent to our joint p_hone consultation, with Peter Russo in attendance, this past Friday, I have had an opportunity to speak with both Peter as well as Beverly Grindley. It seems apparent, at this stage, that Beverly will not be in attendance at Peter Russo's office~ on Monday, December 31,2001, as outlined in your proposed Mediation Agreement (Mutual letter of Understanding) that was drafted on November 14, 2001, as part of an attempt to resolve the issues that existed between Beverly and your client, Oakwood Custom Homes, concerning the improvements at 36 Watson Drive. Beverly has determined that the Mutual letter of Understanding does not address her concerns, nor her financial exposure in this case and she is adamant in her contention that she was to receive a minimum of $16,100.00, net litigation expenses, including attorney's and mediation fees, as part of the settlement. I am taking the time to inform you of her position so as to eliminate the necessity of traveling to Peter Russo's office, on Monday, when she will not be there to assign any of her interest in the property to your client. If you have any questions, eoncoming this matter, please feel free to contact me. I am also copying Peter Russo with this letter, so as to apprise him of a situation for which I believe he is already aware. Cc: Beverly Grindley (Griffith) Peter RUsso, Esq. Remarks; Number of Pages: Grainger Bowman, Esq. Powell, Traehtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Griffith and Oakwood Custom Homes Dear Grairiger: I have attached a copy of the letter that was mailed, earlier today, regarding Beverly Griffith's position regarding the proposed settlement meeting, scheduled for Peter Russo's office, on December 31, 2001, at 10:00 am. Beverly will not be attending as she would not be able to provide a clear transfer of the property at this point in time and she does not recognize the conditions, as stated in the Memo of Understanding, to be binding upon her future performs, nee in this matter. I will 'copy Peter Rnsso with this t~esimile, so as to avoid any misunderstanding, and so that it wilt be certain that no meeting, at least as it relates to a property settlement closing, should (or will) take place on Monday. If you have any questions I am happy to speak with you about this matter. Yours truly, Chris Restak Cc: Peter Russo, Esq. EXHIBIT CHRISTOPHER RE~TAK Decernber 27, 2001 By Facsimile: (717) 238-9325 Original by mail. Grainger Bowman, Esq. Powell, Traoht~nan, Logan, PC 114 North Second Street Harrisburg, ?A 17101 RE: Beverly Grindley Griffith and Oakwood Custom Homes Dear Orainger: Subsequent to our jobar phone consultation, with Peter Russo in attendance, this past Friday, [ have had 'an opportunity to speak w/th both Peter as well as Beverly Cn'indley. It seems apparent, at this stage, that Beverly will not be in attendance at Peter Russo's ofiice, on Monday, December 31, 2001, as outlined in your proposed 'Mediation Agreement (Mutual letter of Understanding) that was drafted on November 14, 2001, as part of an attempt to resolve the issues that existed between Beverly and your client, Oakwood Custom Homes, concerning the hnprovernents at 36 Watson Drive. Beverly has determined that the Mutual letter of Understanding does not address her eoncoms, nor her financial exposure in this eaze and she is attarnant in her contention that she was to receive a m/n/mm o£$16,100.00, net litigation expenses, including attorney's and rnediation fees, as part of the settlement. I am taking the time to inform you of her position so as to eliminate the necessity of traveling to Peter Russo's office, on Monday, when she will not be there to assign any of her interest/n the property to your client. If you have any questions, concerning this matter, please feel free to contact me. I am also co~y/ng Peter Russo with this letter, so as to apprise him of a situation for which I believe he is already aware. Cc: Beverly C"rindley (Griffith) Peter Russo, Esq. Pot LL, TRACHTMAN, LOGAN, C BOWMAN & LOMBARDO (717) 238-9300 F^CSlmLE (717~ 238-9325 December 28, 2001 RLE, Beverly Grindley-Griffith 58 South Corporation Newville PA 17241 Christopher T. Restak, Esq. VIA FAX AND U.S. MAIL 213 Carlisle Street Hanover PA 17331 Re~ Oakwood Custom Homes v. Beverly A. Grindley NOTICE OF YOUR FAILURE TO PERFORM AT REAL ESTATE CLOSING FOR 36 WATSON DRIVE SCHEDULED FOR DECEMBER 31, 2001 Dear Ms. Grindley Griffith and Mr. Restak: On November 15,200 l Ms. Grindley executed a settlement agreement in the form of a Memorandum of Understanding, resolving all matters with Oakwood Custom Homes. Pursuant to paragraph 5 of the Agreement, the real estate closing was scheduled to take place on or before December 31,2001. On December l 7, 2001 I sent a letter to you and to your counsel notifying you that closing for the real estate would take place on December 31,2001 at I 0:00 AM in the law offices of Peter Russo, Esq. On December 24, I spoke by telephone with Christopher Restak, your currently retained attorney, and Peter Russo, Esq., and advised that Oakwood intended to appear at real estate closing on December 31, and perform the terms of Memorm~dum of Understanding. Today, Mr. Restak has informed me by letter that you will not perform the terms of the December 28, 2001 Page 2 Memorandum of Understanding and nor will you convey the real estate at the scheduled closing. I informed Mr. Restak by phone, aud am informing both of you by this letter, that Oakwood considers Ms. Grindley's refusal to perform the Memorandum of Understanding a material breach of the terms of the Memorandum of Understanding. We consider your notice of refusal to perform closing will make the closing on December 31 entirely unnecessary. Therefore, Oakwood will not appear for closing on December 31, unless we hear from you otherwise. If we hear from you, then we will probably have to re-schedule for another date and time. Oakwood is ready, willing and able to perform the terms of the Memorandum of Understanding. Oakwood intends to seek specific perfo.rmance of the Memorandum of Understanding with the Court of Common Pleas. cc: Peter Russo, Esq. VIA FAX AND U.S. MAIL Identical copy of this letter is being sent to: Beverly A. Grindley Griffith P.O. Box 1394 Carlisle PA 17013-6394 Sincerely yours, C. Grainge?,~.jowman Attorney for Oakwood Custom Homes, Inc. TRANSMISSION OK TX/RX NO 4158 CONNECTION TEL §339143pp411601 SUBADDRESS CONNECTION ID ST. TIME 12/28 16:22 USAGE T 02'05 PGS. SENT 3 RESULT OK POX~ELL, TRACHTMAN, LOGAN, CARP, LE, BOWMAN ~ LOMBARDO 114 Nott[~ Iq-.-~.bt~.g, PA 17101 (717) 208-9300 FAC~IMII~. (717) 238-9325 CBOWMAN@pow~LLTR~CHTMAN.COM FROM: PHONE: SUBJECT: C. Grainger Bowman DATE: (717) 238-9300 CLIENT M~A'I'I'ER: Cu-indley / Oakwood Custom Homes, Inc. December 28, 2001 4116-01 TOTAL NUMBER OF PAGES INCLUDING TEllS PAGE: . PLEASE DELIVER AS SOON AS POSSIBLE To: RECII'IENT Chris Restak COMPANY FAX NO. 633-9143 If you do not receive ali the pages, please call (717) 238-9300. PHONE No. 637-5188 Notice of Breach ~opy to Peter Russo POv 'Lid, TRACHTMAN, LOGAN, C BOWMAN ~4 LOMBARDO (7171 238-9300 F^C$1MILI~ (717) 238-9325 December 28, 2001 RLL, Peter Russo, Esq. 5010 E. Trindle Road, Suite 200 Mechanicsburg, PA 17050 Dear Peter: Re: Oakwood Custom Homes v. Beverly A. Grindley This will confirm that Ms. Grindley (through Chris Restak) has advised Oakwood (through me) that she will not be attending real estate closing on December 3I, 2001 in your office to perform the terms of the Memorandum of Understanding, and to convey the real estate at 36 Watson Drive to Oakwood. For this reason only, Oakwood will not be attending the closing either, but Oakwood does stand ready, willing and able to perform the terms of the Memorandum of Understanding when Ms. Grindley changes her mind. In the meantime, we would like to count on your ability to provide the attorney's certificate of clear title, as per the Memorandum of Understanding, if the matter arrives at a closing amicably. Consequently, Oakwood will seek specific performance of the Memorandum of Understanding in the Court of Common Pleas. cc: Christopher Restak, Esq. Siscerelyr yours, c . Grainger(t~owman VERIFICATION I verify that the statements made in this Complaint are tree and correct to the best of my knowledge, information and belief. I understand that any false statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. C. Grainger Bowrrl~, Esq. Attorney for Oakwood Custom Homes, Inc. HB:43358vl 4116-01 Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 Notice to Defend YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN COUNTERCLAIM WITHIN TWENTY (20) DAYS OF SERVICE UPON YOU OR A DEFAULT JUDGMENT MAY BE ENTERED 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 CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. You should take this paper to your lawyer at once. If you do not have or know a lawyer, then you should go to or telephone the office set forth below to find out where you can get legal help. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defendrse de las quejas expuestax en las paginas siguientes, debe romar action dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona o por abogado y presentar en la Cone por escrito sus defenses o sus objections a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Cone puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demando o por cualquier otra queja o compensation reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTE DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABODAGO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABA JO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 DEFENDANT'S ANSWER~ NEW MATTER AND COUNTERCLAIM COMES NOW, Beverley A. Grindley-Griffin, by and through her attorney, Christopher Restak, to file an Answer, New Matter and Counterclaim, in the above captioned matter. Defendant's filing comes pursuant to a Complaint, entered by the Plaintiff, Oakwood Custom Homes, Incorporated, on January 16, 2002. Defendant's Answer follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted upon information and belief. 5. Admitted upon information and belief. 6. Admitted, in part. Defendant admits to signing a document titled Memorandum of Understanding (the aforementioned "agreement" that Plaintiff notes in their Complaint; hereinafter referred to as "the document") Defendant denies all other aversions, by Plaintiff, and avers that this understanding was signed upon the belief that this document was to be subsequently redrafted, for final review and execution. Defendant contends that the informal appearance of the document and the latent ambiguity contained in that same document, rendered the signing as simply a good faith commitment to seek a pem~anent settlement of the issues, once the final agreement was prepared for execution. It is Defendant's contention that she is not bound to the confidentiality component of the document since a strict reading of that component would render her unable to defend against the mortgage foreclosure action that was subsequently initiated against her property (for failure of the Plaintiff to perform under a pre-existing contract for construction). The foreclosure action is docketed as 01-1586 and it has been filed in the Cumberland County Court of Common Pleas. 7. Admitted. The terms of the memo speak for themselves. 8. Admitted. The terms of the memo speak for themselves. 9. Admitted. 10. Admitted. Defendant's failure to perform, under the terms of the document, was excused by the intervening, amended foreclosure action that postdated the signing of the document. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted as to the sending of the letter. Denied as to the claim of breach by the Plaintiff, against Defendant. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 19. Admitted. 20. Admitted. 21. Admitted. 22. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 23. Admitted. 24. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 25. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 26. Admitted. 27. Admitted. 28. Admitted. Wherefore, defendant, Beverly Grindley-Griffith, requests this Honorable Court to enter judgment in its favor and against Plaintiffs. NEW MATTER 29. Defendant hereby incorporates paragraphs 1 through 28 of its Answer as more though more fully set forth herein. 30. Plaintiff's claim may be barred by the doctrine of"unclean hands." It is as a direct cause of Plaintiff's failure to perform under a construction contract, executed between plaintiff and defendant on February 15, 1998, that mortgagee has initiated a foreclosure action against defendant. 31. Plaintiff's claim should also be barred by the doctrine of"unjust enrichment." If the Court were to award specific performance of the proffered document, as Plaintiff has requested, Plaintiff would be unjustly enriched. Defendant, due to Plaintiff's breach of the underlying construction contract, currently faces a foreclosure action, initiated by its mortgagee. Basis of the foreclosure action is that portion of Defendant's mortgage agreement requiring the completion of the improvements by November 10, 1999. A copy of the Construction Agreement is attached and incorporated, by reference, as (Exhibit A). Since Plaintiffwas singularly responsible for Defendant's failure to satisfy the construction completion provision, Plaintiff should not be rewarded for their own lack of performance under their own contract between Oakwood Custom Homes, Incorporated and Beverly Grindley. 32. Plaintiffshould be required to compensate Defendant for any losses, direct and consequential, suffered as a consequence of Plaintiff' s failure to perform under the construction contract. 33. Plaintiff's claim for .... "such other and further relief that the Court deems appropriate..." lacks specificity and fails to put Defendant on notice as to the true nature of the claim being made. 34. Plaintiff's claim for attorneys fees is unsubstantiated and without basis, in either contract or equity. - WHEREFORE, Defendant requests that this Honorable Court dismiss Plaintiff's Complaint and, more specifically, dismiss Plaintiff's request for Specific Performance. COUNTERCLAIM 35. Defendant hereby incorporates paragraphs 1 through 34 of its Answer and New Matter as though more fully set forth herein. 36. Defendant is currently defending her property, the subject of Plaintiff's claim for Specific Performance, against a foreclosure proceeding, initiated in this Court and docketed at 01-1586. Basis of mortgagor's claim for foreclosure is Defendant's inability to complete construction of a single-family residence. Plaintiff has responsible for the construction activities, as per the terms and conditions of a written contract, hereinafter referred to as the Construction Agreement, a copy of which is attached and incorporated, by reference, as (Exhibit A). 37. As per the terms of the written Construction Agreement, Paragraph 13. Time of Performance, Plaintiff was to have finished the house within 120 days from the date of the execution of the contract (Feb. 15, 1999). 38. Plaintiff failed to complete the work, as contemPlated under the Construction Agreement, and abandoned the project, 39. Plaintiff has allowed the improvements to deteriorate to a condition whereby efendant s own property ~nsurance company cancelled insurance, due to "willful or negligent acts or omissionsby the insured.' ' ..... Specffic con&t~ons ctted included, "foundation problem, due to foundation settling." Defendant was directed to "properly install footers below frost line: and water proof basement walls." A copy of the Notice of Cancellation or Refusal to Renew is attached and incorporated, by reference, as (Exhibit B). 40. Defendant was required to seek outside consultant(s) in order to evaluate the current state of improvements that Plaintiff had completed, under the Construction Agreement, and in order to gain an estimate of what it would cost to properly complete the residence, as originally contemplated under the Agreement. A copy of Defendant's estimate is attached and incorporated, by reference, as (Exhibit C). 41. According to the estimate, Page 3, Paragraph 1., the contractor, McCorkel Construction Services, Incorporated, the existing home will have to be demolished, and properly rebuilt. The cost of the demolition, and reconstruction, is estimated at $136,180.00, which exceeds the cost of the original Construction Agreement between the Plaintiff and the Defendant. 42. Plaintiff has breached their contract (Construction Agreement) and Defendant has a good faith basis to seek adequate compensation for her damages, which are a direct, and foreseeable result of Plaintiff's breach. 43. Defendant has incurre(~ consequential damages, in-the form of additional interest: charges, and legal fees, in defending herself in the foreclosure proceedings that have been initiated against her. 44. The basis of the foreclosure action is the Defendant's inability to satisfy the Construction/Permanent Rider which mandates that the construction of the residence "shall be completed on or before 11/10/99." A copy of Defendant's Foreclosure Complaint is attached and incorporated, by reference, as (Exhibit D). 45. Plaintiff's failure to complete the construction, in a timely fashion, was the proximate cause of Defendant's current foreclosure action. 46. Defendant is entitled to a refund of monies paid to Plaintiff, on deposit, as well as damages directly related to Plaintiff's alleged negligence in completing improvements under the Construction Agreement. WHEREFORE, Defendant requests that this Honorable Court enter judgment in its favor and against Plaintiff, Oakwood Custom Homes, Incorporated, in the following amounts; A. ii. iii. $ 6,048.00 representing the interest on Defendant's mortgage that was incurred between November 1999 and November 2001. $136,180.00 representing the estimated costs to remove and rebuild the single-family residence that was the subject of the original Construction Agreement. $.1,000..00 representing the amount given to. Oakwood Custom Homes, Inc., as a good faith deposit on or about 2-15-99. $ 2,000.00 representing monies given to Oakwood Custom Homes, Inc., for future heating system. B. Award judgment against Plaintiff, Oakwood Custom Homes, Inc., in favor of Defendant, for reasonable costs of this action. C. Award Defendants reasonable attorneys fees for the costs associated with case No. 01-1586, as initiated by National City Mortgage, against Defendant. ~"~'Yari'gtt~r T. Restak, Attorney 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA Supreme Ct. I.D. # 81514 Attorney for Defendant Date: February 8, 2002 VERIFICATION I, the undersigned, Beverly A. Grindley, hereby certify that I am authorized to verify this pleading, on my own behalf. I hereby affirm that the facts contained in the foregoing Answer and New Matter and Countemlaim are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: Beverly A. Grind[e~y Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 CERTIFICATE OF SERVICE I hereby certify that I served a tree and correct copy of the foregoing Answer, New Matter, and Counterclaim upon, C. Grainger Bowman of Powell, Trachtman, Logan. Carle, Bowman & Lombardo, located at 114 North Second Street, Harrisburg, Pennsylvania 17101, by United States mail, first class, postage prepaid, on February 7, 2002. "~'-----Ghristopher T. Restak, Esq. 213 Carlisle Street Hanover, PA · 17331 (717) 637-5188 PA. Supreme Court I.D.# 81584 Attorney for Defendant EXHIBIT A rev 10/,98 -ONSTRUCTION AGREEMENT AGREEMENT made this b · . x ~nu De=ween OAKWO0 INC..having an office at ._ . D CUSTOM HOMES, or ( tel after "Own ~,, w , _ -- .. g lar ~. AG~ T9 P~C~SE: The Contractor here the atta&hed Dk~ ~,~ -- :_{ s~stan~lly Con~o~in SDe ~4c~{~,~.,-'- ~- opec~flcatlo~s the , g to Hom~. to be erected on the .... ~___g~ ~ purchase the ~l=ably o~ed or inten~-~'~=s {=ne"~ot,,) OWned, 2. PRI CE: +~]. ,,The P~ige for ~e ~ome is $~) (~e Contract r~ce ), a~ lncludes allowa~ces~i~ated lot ~mprovements noted i~ ~3 a-f and ~5 d, based on ln~°~gtip9 pro~ide~ by 0~ers(s), s~ject to additions an= de~Uc=lons my c~a~ge or, ers.. All change orders must be agree~ to by Contractor in writing and paid in advance at the tlme of execution. The Contract Prlce includes any options specified in the "Options,, section. 3. NOT iNCLUDED 'IN CO~CT PRICE: .Due to the YaWing cost because of lot a~d local conditions, we do not inglude.the cpst of slte work and lot ' · ~{lce lls~ed in paragramh 2 ~a~ --,~:~m~rovemen~s in the however, the Contractor=sh=~% -~ =uu ~n De~alf of the O~er(s) and engage ~ird pa~ies as s~contractors of the O~er(s) to perfo~ site work and lot improvements. Funds necessa~ to reimburse the Contractor for bllls paid to ~trd pa~ies, must be made available through the d~sburs~ent schedule of draws on the 9~?r(s) 's mo~ a~e is ~ ~ ...... ~o~m. If the uontract Price ~ t~ ~,~npugn.=o ~ay the ....... u~u ur =ne lot l~prove~e~ts, f~ds to cover ~e difference must be escrowed ~der te~s payable to contractor prior to co~encement of const~ction and released to the Contractor when re~ested. The following amounts are estimates of the actual cost. The O~er is responsible for reimbursing the contractor for the full amount of the actual cost of the lot improvements as shown on the invoice of the s~contractor. (a). Excavation, backfill an~ .... = - . ~ ~u~n graae seed'the lot with e~--~= .... - lne grade and *A/~ r~--.~-- ~ ~- .~n~ SOils ....... S ~,~ ' . (b). in~ta~U~i~l~ is never included: (c). Install shale n~ ...... '''.$~-~ .Storm.water, fill in or ~,~ .... .... , uOpSOll i~, sidewalks, stUmps, debris, etc .... : (3e). Permits/Inspections_ (~) · Other= $ 4. OWNER(S) MUST PROVIDE T_O._CON.T. RACTOR.: The O~ner(s)., at their cost, must take the xollowlng actions and provide at_he_.Con.t_rac.tor with the following ?.ermits or documents (if WP~lcaDle =o the construct/on o~ =ne ~{ome) before the. Contractor is required to commence construction: and conditions containe~ herein. .. ~. In_th? eye~t 'that the 9Ppraised va%ue.of the subject ome =o me built (along with the lot it is intended to be built up~n) is less than the sale price, the ContraCtor, at his sole option, may elect to negotiate the price with Owner or to reduce the purchase price to the appraised value with all other terms and conditions remaining ~nchanged. c. The Contractor may extend settlement date, at ~n~a?tor's sole o~ion, for a period of up ~o 300 days, = 1= is necessary (in Contractor,s sole opinion) for the completion of constr~Ction, or coordination of financing with Lender(s) or Governmental agency. ~..~s pgrt ~f this agreement, Owner agree 9o cooperation ully with contractor and ~ender ~n obtaining financing 9pproyal. Such ?o?peration include~ but is.not %imite~ to immediately providing all required lnformatlon, incurring NO_A?D~TIONAL DEBT, paying al% present payments on time. eno me~ng responsible in retaining present employment. ' Owner understands that failure to cooperate as herein defined will be a default under this agreement and will cause Owner to forfeit his/her deposit.moneys including but not limited to the note described in this agreement. e. Owner agrees to accept FmHA-GRH, FHA, VA, PHFA, LP, Community. Home Buyer, Conventional or other alternative loa~.~ype from that origina%ly attempted if Owner guallrie~ for thgt alternative loan type based upon information provlded to Contractor and/or Lender and does not qualify for or funding is not readily available for the loan type originally attempted. In the event that the loan type Changes, Owner understands and a~rees that the mortgage amount, monthly payment, and closlng costs may change. O~er agrees that they will accept those changes and execute promptly all necessary docu~.ents to effect those changes,provided that the Lender is willing to make the loan based on those changes, i~ f. Contractor agrees tO p~¥ ~p.to $_~___ of Owner's allowable closing costs wnlcn includes and which is su~.]ect to the Lender s parnme~ers for the loan type'and will not exceed 3% on conventional and 6% on GR/{/VA/FHA. g. Owner has reviewed and received an estimate of closing costs. h. Owner and Contractor agree that in the event of Owner's financing looking unfavorable in Contractor,s sole opinion. Contractor, at Contractor,s sole option may terminate this agreement on 24 hours verbal notice after which this agreement shall be null and void and all deposit monies returned to Owner so long as Contractors determination is not a resul~ of a default by the Owner. i. If the appraisal exceed's the sale price, Owner agree's to permit lender, if the loan program allows it, to finance up to the appraised amount for the purpose of financing some closing costs. j. Should it be necessary to consolidate or refinance any , ~enuerma~es s~cn consolidation loan or reflna~cing mvailable.on terms that are acceptable to mortgage lender d__~__~_~n~ =~ co?~erg~e with the st.l~.cturing, u~u=~zon, colla=erallza~lon.with any ellgible assets, ~nd placement of s~ch consoll~atlon a~d/or refinance loan. KL In .t~_? ~vent this transa.ctlon requires the acquisition or a glr= Dy Owner for.closl~g costs and/?r down payment, Owner warrants the availability of said gift. I/We have read and fully understa agree to the terms and conditions contained herein. ~ (a). Close on construction financing with lender; (b). Provide a certificate of attorney or title agent of clean title to Lot, recording of mortgage and deed of trust, and recording of waiver of mechanic,s liens (where applicable). (c). Provide the Contractor with payout schedule, from the lender, acceptable to the Contractor, showing what funds will be released when. The total of the draws must be equal to the Contract Price and the estimates for lot improvements. If the draws are not sufficient to pay the Contract Price and the cost of lot improvements, the Owner(s) must escrow the additional funds required, which shall be paid by the Contractor as draws on the construction of the Home before the lending institution funds are used; (d). The. Owner(s) shall purchase fire and extended coverage Insurance and provide the Contractor with a copy of the policy, which shall include "all risk" insurance for physical loss and damage including, without duplication of coverage, theft, vandalism and malicious mischief. The insurance shall be for the full insurable value of the construction of the Home and shall insure the Owner(s) and the Contractor, as their respective interests might appear; (e). Select colors and have a pre-building discussion with the Contractor upon 5 days notice from Contractor that it is ready.. <f) . 5. CONSTRUCTION PROCESS: (a). Owner understands and agrees that each home is custom built on an individual basis and that the subject home may vary slightly from the plans or model shown including variations in the size of rooms, doors, and windows locations, etc. However, Contractor agrees that the su~jec~ home will be built similar to the shown ~lan, specifications and/or model. The Contractor's Price is based on construction on a flat lot with a set number of blocks, and in the event any site work is "included" <as indicated above), it is based on the most economical sitting of the house to provide for the exclusive use of existing soils and fills and the most economical driveway configuration. The cost of additional block, structural steel, and larger footer and block or fill or blasting or longer than necessary driveway due to conditions of the Lot will be added to the Purchase Price. --~(b) Owner agrees to make all change orders and all selections within 48 hours of notice from Contractor and Contractor shall have the right to approve same. In the event any.selections are not approved by Contractor, Owner agrees to repick within 48 hours. In the event Owner does not make selections within 48 hours, Contractor may choose selections on behalf of Owner and Owner agree's to accept such as .if they had made. them. ~c) Owner agrees to conduct a walk through 'of the 'home With Contractor or Contractor,s representative upon 48 hours verbal notice during which a final ~epair list will be made after which all items not noted will be dealt with in accordance to the terms of the warranty. Any unnoted ~loor/counter/wall/tub damage and otheri~ypes of damage elects will be deemed caused by Owner not noted at this walk through. I/We have ~ead. and fully unde~stand3~%d agree to the terms and conditions contained herein... '-I<~ . . Failure to attend the walk through shall be considered approval'and unconditional acceptance ~y Owner of the propertylin it's then condition subjec to the terms of the warranty. (~) In the event the home being purchased requires an on site well the allowance for such is $2500 inclusive of tie in and any desired or lender required treatment system. (e) Owner and Contractor hereby agree that after the start of construction any change order and it's charge must be agreed to by both parties. In the event there is no agreement the change will not be made and the original ter~s will apply: There will be a $250 fee for any such changes in addition to the actual change order cost. This is to compensate Oakwood Custom Homes, Inc.'s overhead in accommodating changes. This applies to deletions as well as additions and applies each time there is a change. 6. RESPONSIBILITY ON OWNER(S): Except for the parties engaged by the Contractor.on behalf of the Owner(s) under Sectlon 3 to provide lot Improvements, no other party (including the Owner(s) shall be engaged by the Owner(s) to perform work on the Home or lot unless the Pa~y to perform the work enters into a written agreement with the Contractor and the Owner(s) regarding scheduling of work, payment and other matters on terms satisfactory to the Contractor. Any Party's engaged on behalf of Owner, are subcontractors of the Owner(s). The Contractor will not be liable for the work of the Owner(s) or Owner(s),s subcontractors, including any delay in construction resulting from such work. Owner(s) shall reimburse the Contractor for any costs to the Contractor caused by the actions of Owner(s) or Owner(s) ,s Subcontractor and shall indemnify and hold harmless Contractor fro any claizs, damages, liabilities or cost (including attorney fees) arls~ng out of the action of the Owner(s) or OWlner(s),s Subcontractors. 7. BASEMENT: Ail grading shall be done to divert water away from the Home during construction, as well as after the Home is completed. Block by it's very nature is porous and Contractor does not warrant a dry basement. 8. DEPOSIT: Upon the signing of the Construction Agreement, the Own~r(s).~hall pay to the Contractor a good faith deposit of $~/~,K~3 TO BE APPLIED AGAINST THE FINAL PAYI~ENT OF THE CONTRACT PRICE. The Owner(s) right to the deposit will be terminated if the Owner(s) default in any of their obligations under this Construction Agreement and the Contractor shall have the right to 'retain the deposit, which shall be in addition to any other rights or remedies the Contractor may have as a result of a default by the Owner(S). An additional deposit in the form of a NIB Note in the amount of $10,000.00 is made a part of this agreement. ~. 'FINANCING TERMS AND CONTINGENCY: ~. T~is aqree~ent is contingent upon approyal.by lender(s) of a~eqUate flnancing, to be applied for w~th~n 7 days of the date of this agreement, to close this transaction at ~a~es a~ terms .t~.at the Owner ~ualifies for based on the %n~or~.a~?n prov~ed to and relied Upon by Contracto ~gter~g ~nto this agreement. In ~ .... ~ - _ r in . . ~ ~v~n~ a~equa~e financing carnlot be obtained with the full coo erat' Owner, all deposit monles shall be returned toPowne~n of I/We have read and fully understand ~d agree to the terms and conditions contained herein.. 1. Owner and Conu~actor agree, that the ten uhousand dollar note from Owner to Contractor, as security for Owner's ~erformance of this agreement, will be held by Contractor as a deposit. It will not be held by any agent for Contractor or treated as an escrow. In the event of default by Owner, Contractor will give to OWner twenty four hours verbal notice to cure the default. In the event that the default is not cured, the Contractor may declare the note due and payable and take l~gal action to collect upon it. 10. CONTI~ACTOR'S PAYMENT SCHEDULE: (a). Payments to the Contractor shall be made within 5 days of request by the Contractor and the validity of the draw request will be determined based solely on the lenders inspection of work in place substantially in conformance with the plans and specs. Unless otherwise agreed in advance in writing by Contractor, the 1st DRAW consisting of 20% OF THE TOTAL shall be paid when the Excavation is complete, Footer poured and Foundation Complete; 2ND DRAW consisting of 20% OF THE TOTAL shall be paid when the Rough Framing is complete and the windows and doors are installed; 3RD DRAW consisting of 20% OF THE TOTAL shall be paid when the Roof is Shingled and the Electric, Heat and Plumbing are Roughed-In; 4T~ DRAW consisting of 20% OF THE TOTAL shall be paid when the Exterior Wall Covering, Insulation and Drywall are complete; 5TH DRAW consistin~ of 10% OF THE TOTAL shall be paid when the Vinyl Flooring, Cabinets, Electric, Heat and Plumbing are complete; 6TH DRAW consisting of the Total Balance Due the Contractor shall be paid when the Carpet has been installed. Any draw requested, except the last draw, that work is incomplete due to back order, weather conditions, or circumstances beyond the control of the Contractor shall be released providing an additional amount of work of an equal dollar value is in place. If work remains due to back order, weather conditions or circumstances beyond the control of the Contractor when the last draw is due an amount mutually agreed to by the Contractor and Owner, no greater than the cost value of the incomplete work, can be withheld from the total due. (b). Payment to the Contractor for cash sales, without Owner(s) funds being placed in escrow, shall be made as follows: one half (1/2) upon the signing of this Agreement; one fourth (1/4) when Home is under roof; one fourth (1/4) when drywall is installed; and the balance, if any, at settlement concurrently with transfer of title and possession of the Home from Contractor to Owner(s). Payments to Contractor for cash sales with escrowed funds shall be made in accordance with the draw schedule found in section 10.(a) of this agreement. (c). Payment to the Contractor shall be by FedWire to the ,bank designated by the Contractor unless otherwise agreed in advance in writing by Contractor. In.the event icontractor has agreed in advance to accept d~sbursement by check from lender, if lender issues said check in the name of both Owner and Contractor, Owner hereby gives DURABLE POWER OF ATTORNEY FOR THE PLrRPOSE OF SIGNING DRAW CHECKS TO Contractor: I/We have read and fully understand and agree to the terms and conditions contained herein. , have made, constituted and appointed, and by these presents do make, constitute and appoint Douglas L. Zook in his capacity as President of Oakwood Custom Homes, Inc to be MY TRUE AND LAWFUL ATTORNEY, for me, and in my name, place and stead, to act in relation to signing my name, and applying such, to any draw/settlement check naming myself, and Oakwood (Custom) Homes, Inc as co-payees. And I hereby declare that any act or thing lawfully done hereunder by my said attorney shall be binding on myself, and my heirs, legal and personal representatives, and assigns, and in case of my death, my said attorney shall render a statement to my personal representative/s for whatsoever has been done pursuant hereto. This Power of Attorney shall not be affected by my subsequent disability or incapacity. The singular as used herein shall be interpreted to include the plural, even though not written in the plural, whenever and wherever the context requires. IN WITNESS WHEREOF, I have hereunto set my hand and seal below to this Specific Power of Attorney. 11. OCCUPANCY: Owner(s) shall be given title to and possession of the Home upon completion of construction and the payment in full of all amounts owed to Contractor. Occupancy of the Home by Owner(s), without written consent oft the Contractor, prior to the payment in full of the Contract Price and all other amounts owed to contractor by Owner(s), shall be deemed to be acceptance by Owner(s) of the Home in its then "as is" condition and Contractor shall be released from its obligation to complete construction and all other obligation's hereunder. In such event, the Owner(s) shall immediately pay to Contractor the Contract Price and any other amounts cwed under this Agreement and, in addition, shall pay to Contractor, as damages, the amount of $100.00 per day from the date of occupancy to the date of payment to Contractor in full of all amounts owed. 12. CONTRACTOR'S RE/~EDIES: In the event of a default by the Owner(s) in the payment of any amounts due to Contractor or a breach of any other provision of this Agreement, Owner(s) do hereby irrevocably authorize and empower any attorney or any court of record of Pennsylvania or elsewhere to appear for and to confess judgment against Owner(s), without notice to the Owner(s), for the Contract Price and all other amounts owed to Contractor, together with interest at the rate of eighteen percent (18%), Contractor,s cost of suit, and reasonable attorney's fee. owner,s) waive and release all errors of defeats of 'contractor in confessing judgment if the ~Wner(s) fail to timely pay or otherWise breach this greement. I/We have read and fully understand_~and~agree to and conditions contained herein. ~'. the terms Owner(s) also waive any benefits to Owner(s) under any present Qr future laws exempting any real or personal property of Owner(s), or proceeds there from, from attachment, levy or sales as a result of Contractor obtaining a judgment against Owner(s) for the failure of the Owner(s) to make any payments to the Contractor as required under this Agreement or otherwise breaching this Agreement or laws which provide for stay of execution, exemption from civil process, or extension 6f time for payment. The foregoing ~emedy of Contractor by confession of judgment shall be in addition to any or all other remedies of Contractor, at law or in equity, to enforce its rights under this Agreement. The pursuit of any remedy by the Contractor shall not preclude the Contractor from pursuing, in any order or at any time, any of all other remedies that are available to Contractor. ~/ 13. TIM~ OF PERFORMANCE: The Work to be performed under this Contract is intended to be commenced within about fifteen (15) days after the date Owner has fulfilled all obligations required by Paragraph 4 of this Contract, weather permitting, and except as otherwise provided or per~itted by t~e Contract, is intended to be substantially completed within about 120 days. The Date of Substantial Completion of the Contract Work is the date when constr~ction is sufficiently completed in accordance with the Plan and Specifications so the Owner can occupy the construction work. Warranties called for by this Agreement shall commence on the Date of Substantial Completion of the construction work. If the Contractor is delayed at any time in the Dro~ress of the construction work by any act, failure or ~eg~ect of the Owner or by changes ordered or by labor disputes, fare, delay in transportation, unanticipated circumstances, adverse weather conditions, casualties, or any causes beyond the contractor,s control, or a delay authorized by the Owner, then the Date for Substantial Completion shall be extended for the period of such delay plus 15 days. Any delay caused by Owner(s), their agents, or Owner(s) 's Subcontractors for over fifteen (5) days, without the written consent of Contractor, shall constitute a breach of this Agreement. 14. WARRANTY: Service work following settlement will be performed by Contractor solely in accordance with the limited Warranty which as presented to the Owner(s) prior to or contemporaneously with the signing of this Agreement and which shall be a part of this Agreement. There are no other warranties, representations, or policies of Contractor applicable to the Home or this Agreement. The Owner(s) acknowledge that the limited Warranty do~s not apply to any work that is not the .~espon~lbillty.of the Contractor under thi~ Agreement, 'lnclud~ng'gny Items of work that arenot within the Plans Specifications and/or are the responsibility of OWner(s) ~ubcontractors. . 15. LOCATION OF HOME ON LOT: It is the responsibility of the Owner(s) to have a survey of the Lot or to otherwise ~etermine the location of the Lot boundaries, ~ight~-of-way, easements, required roadway access ocatlons and any other limitations on placement of the Home on the Lot. I/We have read and fully understand and agree to the terms and conditions contained herein. '~ (~ The Contractor will locate the Home on the Lot solely based on,the information provided by the Owner(s), and Contractor is not responsible for the improper placement of the Home on the Lot. 16. PRESENCE OF RADON GAS: Radon gas originates in soil and rocks. Being a gas, radon can move into any air space, such as basements, crawl space, and to other areas of a house. The amount of radon in the soil and'rocks varies from area to area. The Contractor shall not be liable for the presence of radon gas in the Home. The Owner(s) hereby release the Contractor from all claims that may arise, directly or indirectly, from the presence of radon. 17. Miscellaneous: (A). Owner(s) will provide electricity and, when necessary, heat during construction. OWner is responsible for costs for non-standard items such as water quality systems necessary to satisfy conditions of Owner(s) loan. (b). Contractor shall have access to Home at all times during construction. !c) All rights and liabilities herein given to, or imposed upon the respective parties hereto shall extend to and bind several and respective heirs, executors, administrator, successors and assigns of said parties; and if there be more than Owner, they shall be bound jointly and severally by their terms, covenants and agreements herein, and the word "Owner" or "OWners" shall be deemed and taken to mean each and every person or party mentioned as an owner herein, be the same one or more. (d) The Owner shall not assign his interest in this Agreement without the written consent of the Contractor. 18. Owner has reviewed and accepted all deed restrictions applicable to this property. 19. Owner understands and agrees that Owner is not covered by Contractors insurance for any accident that may occur on the construction site. Owner is expressly prohibited from being on the construction site unless accompanied by the Contractor, or any employee of or agent for the Contractor without the Contractor's prior written approval. 20. Owner is aware there is no community sewage system available and that a permit for an indivldual sewage system will have to be obtained. Owner should contact the appropriate authority prior to s~gning this contract to determine the procedure and requirements for obtaining a permit for an individual sewage system if one has not already been obtained. Mark if applicable ~ 21. In the event FHA construction financing is used, all ~onstruction loan costs, inspection and title fees, 'interest, 'hazgrd insurance and real estate'taxes during %he constr~ctlon period shall be paid by Owner to the extent allowed by HUD. I/We have read and fully understand__a~d~gree to the terms and conditions contained herein. _'-~ ~ 22. In the event Contractor does not own the lot being sold with the new construction as a package at the time of execution of this agreement, this agreement shall be contingent on either Owner or Contractor (as applicable according to constr%lction financing used) acquiring ownership, either record or equitable, prior to settlement. Owner shall cooperate and use best efforts to acquire said lot and in the event Owner's lot agreement (if not record owned by Owner) expires prio~ to the expiration of this construction agreement including any extensions, Owner agree's to diligently seek extension of the lot agreement in conjunction --~ this agreement. Failure to do so is a default under this agreement. 23. CHANGES IN WRITING: Any changes must be in writing and signed by both parties. All changes must be paid when written or a letter received from the Owner(s) lending 9gency showing the draw sequence has been changed to include payment of the change order in full on the next draw. This Agreement replaces all prior written or oral agreements between Contractor and Owner(s) and shall inure and be binding upon the heirs, executors, administrators, successors and assigns of the parties. 24. GOVERNING LAW: Both Parties acknowledge that this agreement is entered into in Lancaster County, PA and that any legal actions stemming herefrom shall be in the proper jurisdiction of the Courts of Common Pleas of Lancaster County, PA. 25. Settlement date on Owners financing prior to the start of construction to be on or before ~ However this is extendible by 300 days at Contractors sole option to acco~modate Owners financing, lot acquisition, construction scheduling, etc. 26. Contractor and Owner certify that no one working in the capacity of a real estate broker or agent is involved with this transaction and this transaction is solely between Contractor and Owner and no compensation is due to any outside party as a result of this transaction excepted as noted here IN WITNESS WHEREOF, and seals the day and year first above written, thereby to be bound. ~akwood Custom Homes, Inc the parties have set their hands intending (SEAL) Witnesses: 1/We have read and fully understand and agree to the terms and conditions contained herein. ~, ~ rev 10/98 ~ ~!i~il · CONSTRUCTION AGREEMENT DETAIL This Agreement is a sul~plement to a construction/sales agreement dated__~_~~ between Oakwood C~stom Ho.mes, Inc. hereinafter called Contractor, and ~43~'~ 6. (',~,i~Cf hereinafter called Owners, and is intended to be made a pa~ o~ said agreement as though inco~orated therein. OPTION DESCRZ~ION' s Home to be b~ilt is a: ~ ~Q ~ ~. ~ ~. Special Notes: I/We have read and f~lly understand~adm~ ~gree to the terms ~nd conditions contained herein. rev 10/9e · AGREEMENT FOR THE SALE OF REAL ESTATE Thi~ form r¢commmdcd ~r,d appro~=d for, but no~ tcs/r/ctcd AGENT FOR BUYER Douglas L. Zook Real Estate PA. LICENSED BROICER This Agr, e, ement, dated caped Seller, and (resining at A/S-BB Resider lo um by. ~hc members of thc Po~n%'h'a~ a ,'~se¢imlon of REALTORS® (PAR) AGENT FOR SELLER PA. LIC£>'SE~ called Bu vet. PROPERTY (7-96) Seller hereby agrees to ~ell a~d c - - · ,- . . . A. LL TltAT CiRT.-LIN lot or piece of "roun w;*~, ,.[.o:,n.}..e_y t? B,u~e., ~ho hereby agrees to purcaa~e: in the Commonwealth of Pennsylvama. Zip Code __ , is betwe Identification (Tax ED#; P-~rcel" D o" o - ~: e.,, ooo~. Recording Zoning Classification ~ Page. Date) ~ ~e ~s A~ement to com~n ~e Zo~n~ :la~caaon (except in c~s where ~e prcpe~ ts zoned ~le!y or p~ly to pe~t ~n g!e-~ly dweHinas) s~ll )ender' ' .... · my ae~s~ tendered bv ~e Bm'er s,~l ~e re-,~-~ .- .[ - - · ~s A=.e~ment, o~daole at ;~e ouucn Dollars w~c~ sh~l be p~d to the Seller by ~e Buyer as fo/lows: (B) C~ orcheckat ~ing ~s .q~e=men}: ' (C) C~h or check to be prod on or befog: ~) n/~ ~) C~h or ce~e~ check at dine of cerement: (F) Wfinen apprm'fl of Setler to be on or bffore: ~ IOT.~ S" ~ ~ c}(,~ (G) Se~ement. to be ma~ on or befor:: (hD Con~wunc~ from Seller ~hll be by e~ s~mple deed ot s~e::~ ;v~. ~ess (I) PaSment of~br txxes will be ~ded equ~ly bem'een ~uyer ~d Seller u~ess (.D The following shall be appomoned pro-rata as of and at time of ~r0ement: ;axes cm le~sed and ~sessed; rents: interest cn mort- gage asmmpfiom; condominkun fees and homeowner aSsociauon fees. ~f an?': wame and/er sewer rents, h" any: to~edler with any. other l/enable municipal se,'xices, unIe~s othemise r..nted here - - FIXTI/R.F_.~ .4.aYD P1;'llSONAL PROPERTY (7-96) (A) INCLUDED in this role and purchase price are all exisUng items permanendv/mtn/led in the Prcperrv plum~ing, l?ating, lighdngfixmr~s (including chandeliers); water treatment sv ' · . fr.ee of liens, including and tranmmtI~, telemmon antennas; tmpotted tre~s shrubbery and ~'~-.,-' stems, pool ~n~ spa eqmpmenr, garage dcor openers · ' ' · ~,,,ung$; am' remmmng heaunz and cooking fuels gore~t on thcP~ at tt~ time of settle-neat: waft to ~mll carpeting;, shades, blinds, window cover/ng~h ardw~'~: Imilt -in air condki0n e.,~: bnilt-it~ appliunc~; and the range're.eh unless othermse stated. ~ itlcluded: (B) F. LXCLUDED fixtures and items: (C) T?.,he following are a part of this Agreemen if checked. L~ Addendum "B (PAR Form B.6) I~] Sale & Settlement of O~erProper~. Contingency Addendum (PAR Form 130-6) ~] Sale ,e- Settlement of O~er Property. v,'iti~ Right to Continue Marketing Contingency Addendum A~greement of Sale~- ., ,wing received a s~aiemem of ~heir rc~ccl.,c estimated closing cosa before Buyer ac~owledges reccip of (he Deposk Monc · Notice , ' Buyer ac~owledges receipt nFR~I~'~ ~ ~. (o~5 applicable for c~operadve soles). - - .......... ropc~, ~sclosure Sa~ement. ' ~ Sale of Tenant-Occupied Properly Addendum ('PAR Form TOP-6) Vacant L,{nd Sale Addendum (pAR Form VL.6 Zoning Approval Addendum (pAR Fo~ '"-.-,) (PARForra 1316) ~UBJECT TO BUYER OB"" FiNAaxlC~NG ~OR BOTH THIS LOT A~ID THE HOME TO BE BUVZ'~,. -~ -AIJING ADEOUa~E ZNC, SUCH FZN~ICZNG TO BE APPLIED FOR ON OR Be=ORE ~2~% ·' ~ ~ -- u ~u~um HOMES, SU]JiCT ~SO TO BUYER BEING ABLE TO OBTAIN ALL PEkMZTS .~lD A=~ '~-~ --.~O%~o NECEss~y TC ]UiLDING,-S~TiC m~iD WATER AT~ COST OF NOT MORE TF~xr $fi(~ FOR A~L. SUBJECT *-~ BORING FOR UTiLITiEs WiLL NOT BE REqUiRED. ~. 30TICES ~ND A~ESSME3TS (~-96) · a~ ~il~ ~ows of ~o ~.difi~n that weuld ~=~m~e v/obuon of ay s~h o~s wh~eh :ema~ mcorp:ed, u~e= oae~.~ise ~{~ed here: ,.C) Bux=r is ad~is~ ~.%~ a~s o'a publ c mad'may r~uire. , on or be:bre ~e date of ~enlem~. di~lo~e nodce of =~ un~e~ed ~omnon o~ zo~, 8ou~. ~dd~m m~ or :ire orc~.' '. T~LE, ~R~y~ .~N'D kOSTS (?.~G - · c ~He ~o ~fle ~ox~ de~n~d rml e~ate sh~l be go~ ~d markemblc ~d such ~ '.vfil be ~r¢d ~ ~ recycle Tide ~ra~ Comoa~ at thc re~ul~ m~. ' · . ,'3~ ' . · ~ · : . . . - . . A~mmt sh~l ~me NL%L ~D VO~ ~d ~1 ~pi~ wia ~ re~ ~ AStor :bt Seil~r :bt (C) Fo~ :md~ of an ex~ d~ ~ pumh~e money is hereby '.vav~. rD) .~ m~ or sm'~'s ~vhich may be .'e~ir~ ~ ~e ~ifle l~u~ce Comp~ ar :he ~mc:~ an~mey. :bt a~e pt~amuen of de,tip,on of ae ~ope~ (or t~e m~eeion th~m0 sh~l be s~ar~ and p~d :bt by te 2eil~r. aox~e 'er. any ~.~ or surxe~s ~u}~r or requir~ by :I~ by .... uy~ will pay tbrae ,oilo~ff: (l) he prem um tbr mech~ic$ llm ~u . ~mms tor.tl~ ~ee ~or fire A~ce wi~ ~end~ rove ' . ~?e ~ca. ar :~ tbr c~c:iladon of ~me if ~. ,'~' t. DEPO$~ .~ND RECOVeRy FLeD (4-93) ' , *- ......... ~s m: accruals ' ' " :~ a~ ~s~ of the .Aero,s) will ~ paid-by the pa~yjo~g h~ (A) Pos~ion is to ~ deliv~ ~ d~d. k~s ~d physi~ poss~mon ~ a ~=~t buiJd~g (if my) ~oom cica. tk~ of debris al day and time o/'seElc m~. or ~ d~ ~d a=i~cnr ot'c~m~ l~s), togcth~ wf~ ~v s~dm de~sff and mrcresL -r ' '- ' at ~e ex~on of ~is ~r~mmt. or u~ms othmvi~ sp~i~ h~. . of ~ of this Agrc~t of S~ if ~ is t~ oc~pi~. Buy~ ~h~oxvl~ee c~s~g ie~'s) by bid~e s~d l~(s) at time ('3) ~t1~ ~ll ~t ~ into a~ new l~ W~n ~ion of c~s~ lc~. if ~y. or =ddldo~l le~ tbr ~c Propc~,. ~itflo~ cxpre~ ~vd~cn ~n- (A) S~ler ~alI m~ ~e Pmp~, ~c~r~. and (B) Bu}=r ~ ~h= dgh~ to mak~ a pre-senl~ m~=cfion or' ~e Prop~. (C) S Ute sh~l bear risk of Iqss.fror, i;. · -- other cam.aJtle~ until thn¢. of sctdcmcnL In thc r da.magc o any propcrOy included in ~his or other casualties, not tcpa~red 'd,,:,~ *.cd pc/or to setUcment~ Bu)~r shall h~vc thc opbc rescind!ns this Agreement and recci.,ing all mo~ paid on account or of.accepting thc F,opctty in iL~ thc~ condition together with thc procends of any insurance recovery ob(:~x~.b~¢ by S¢~lcr. Bu is hereby notified that Buyer may inSurc Buyer's equitable interest in this property as of thc time of the cxccutlon of this Agrccment. ! I. RECORDING (3-85) This Agreement shall not be recorded in thc Office for thc Recordi~ of Ceeds or in any other o~icc or place of public record if Bu)cr c. au.scs or permi~ this ABrecm~nt to bc recorded, ScUcr m~y elect to treat such act as a breach of this Agreement. 12. AZSIGNhITNT (3-85) This A&m~mcm shall be binding upon the par6c.s, their respective heirs, persona/ reprc~cnUdves, gu~rdlans and successors, anb thc cx'tent ~gnablc, on the a~si~ns of the perdes hereto, it being cxprcssly understood, howcv~, that Bu)cr shall not ~3nsfer or asskm this Ag~eem 13. DI~FAULT-T~IE OF' TI~ ESSENCE C3-91) Thc said time for settlement and all other times rc£crred to for thc pcrform~cc of any of the oblig:tior~ this Agreement are her:by agreed to be of the c, sc*ncc of this A.srccment. Should Buyer: (A) Fall to make any additional payments as speci.fied in p~ragraph 3, or (B) Furnish fa/sc or incomplcg information to the Seller, Agent for ScUer, Agent for Buyer, or thc mong~c Ic~dcr, concerning thc Bu)~:r's legal or cia/ sk~us, or fail to cooper-ate in thc processing of thc mortgagc loan application ~filch acts would result in thc faiIure to o~ain thc a .mortgage loan commitment, or (C) ViolaS: or fall to fuL~l and perform any other grins or condi~ons of this Agreement. rhea in such cas~, ail deposit monies and other sums paid by thc Buyer on accot~t of the purch~e price, whether required by this Agreem~t or noL be rctainnd by thc SeUer as liquldated damages, and b~th pm!ns sha~ b: rcle~ed from further li~illtv or obi!sargon, and ~lis Agreement sha/l be NL.I A,N~) VOID. Se!leds re,.cmion of these sams sha/l constitute Seller% oaly remedy in thc c',~t of Buve/s bccach of ~is .'La_recme,n:. Seller wa!Yes Seller right to sue for the ha/ante of the purchase price or for damages determined by a resale o£ the'ProperS.. I-L AGlr~X~T(S) (3-9!) k is expressly unders:ood and ~-'ced berv, e~ t~c p~cics that thc named Agent for thc Seller. their salespeople, employes, of~c*:rs or panners, acc Agcrit(s) for thc Seller, and that thc named Agent for the Bu)cr, their mlespe~ple, employees, orT;,c~rs and or pe,~er% att: Agent(s) Buyer REPRESE~NTATIONS (A) Buyer urlder~gLqds that ~ representations, claims, adve~i~ng, promo6onal activit~c~, brochurc$ or plans of any .~d made by Seller. A~.e~ or thc (~) it L~ underwood rha~ Baby. er has inspected the Property CmcJuding tLxrures and ~ personal-proporty, speci/ic:tllv scheduled herein), or hereb ~dtzred. ame-aded, changed, or modred except in writing CX~d,Tgd by the pa~c~. .'~'GTi'CE TO PARTIES: W'H~,N SIGNED, THIS AGREE.'¥IENT tS A BINDING CONTRACT. Return by facsimi/e rr'.mm~sion Cf'AX') of Agreement of Sale, and ail ~ddend.x, bearing the signature of all par~e~ constitutes acceptance of this .-Lgreemenr. Par~es to ahis t*ransacdon advised to consult an attorney before si~ing i/' the7 des/re leg~] ad,ice. WITNESS BUYER ~ ~Y,_ ~ '~,-~ ~ ($L~L) DATE WITNESS BUYER (SEA.L) DATE Seller hereby approves ~he above contract this day of A.D. in consideration o£ the service~ rendered in procuring the ~uyer, Seller ~.Jces to pay thc named Agent for ~ller · fee of ~E'from the hereto specified sale price, in the event Buyer de£aui s hereunder, any monies paid on accoum ~aH be divided , As~cnt_ for Seller. but in no cx~nt w-LI1 thc sum paid to thc A~cnt_ tbr Seller be in exc.~s of ~he above specL~ed Agent's ~iTNESS SELLER (SEA-L) DATE ~X;OI:WT~IGFfT PENNSYt. VAARA ASSCC:ATICN OF RE,a/.TORS~) 1996 Page 3 ot~ 3 EXHIBIT B NATIOI, ,fIDE® INSURANCE COM, ,4NIES 1000 Nationwide Drive P.O. Box 2655 Harrisburg. PA 17105 HOY~OWNERS NOTICE OF CANCELLATION OR REFUSALTO RENEW PENNSYLVANIA LAW REQUIRESTHATYOU BE GIVEN A COPY OFTHIS NOTICE. PLEASE READ BOTH SIDES OF THIS FORM CAREFULLY. Beverly A. Grtndley P~O. Box 1394 Carlisle, PA 17013-6394 Kind~ Poliw: Homeowner/Elite II PoliwNo.: 58 HO 704125 Cancellation or ~rm~ion will take eff~t ~: 05/24/00 tZ:01 a,m. (Date) (Hour-Standa~me) D~e~ Mailing: March 15, 2000 LOCATION ADDRESS Lot 2 - Crossroad School Road Carlisle, PA 17013 (Applicable item marked ~) You are hereby notified that the above mentioned policy [] is being cancelled by [~,will not be renewed by [] Nationwide Mutual Insurance Company {~Nationwide Mutual Fire Insurance Company [] Nationwide Property and Casualty Insurance Company This means that the above mentioned policy will no longer be in force on the cancellation or termination date mentioned above. You have, therefore, until the cancellation or termination date shown above to get new coverage if you want to do so. The reasonforthls cancellation ornonrenewalis: There is a substantial increase in hazards insured against by reason of willful or negligent acts or omissions by the insured. Your failure to comply with requested recommendations sent to you on November 22, 1999. Specifically correct foundation problem, due to foundation settling; properly install footers below frost line; and water proof basement walls. You may become eligible for coverage if you complete recommendations. When changes have been made or you can provide the necessary information, please contact your Nationwide Agent to initiate another review. [] The factor(s) that influenced our decision was information in a report obtained from the consumer reporting agency shown below. The consumer reporting agency did not make the decision to take adverse action and is unable to provide you the specific reason why the adverse action was taken, You have the right to obtain a free copy of the report from the consumer reporting agency by request within 60 days of the receipt of this notice. You have the dght to dispute the accuracy or completeness of any information contained in the report with the consumer reporting agency. We' regret this action is 'neces.sary. If you dtsa'gr'ee with this decision or'have any questions, please feel free to congact your local Nationwide Agent shown below. You may request to have this decision reviewed by the Pennsylvania Department of Insurance, instructions provided on back of this letter. (Name) (Address) Muriel Rodriguez AuthorizedRepre~ntative ~OX 2655 HARRIS~JRG, PA ~7105 -2655 November 24, 1999 NATIONWIDE INSURANCE Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013-6394 Policy Number: 58 37 HO 704 125 Survey Date: September 23, 1999 Dear Ms. Grindlcy: One of the services Nationwide offers our policyholders is a periodic inspection of insured dwellinss. These inspections are used to obtain underwriting information and to assist you in PrOl~rly insuring your property. A recent inspection of your property ~veaied a condition which could lead to a loss in.the future. We have.developed recommendations'from th~ inspection. Completing the reCommendations should help reduce the potential for loss on your property. ReCommendations are enclosed and should be completed by February 15, 2000. Please let your Nationwide Representative know by the date indicated above what action you plan to take or have taken on the recommendations. Failure to respond to the recommendations could result in termination of this coveraEe. We appreciate your concern for the protection of your insured property. We thank you for placing the protection of this property with Nationwide. Muriel RedriEuez NATIONWIDE INSURANCE Enclosures: Recommendations 803/tmh cc: 2407277 insured's safety actlvl~e~. ~ny. NeWler Ihe Company, Its agents, nor employees shall be liable for any loss olher than as covered by the BOX 2655 HARRISBURG, PA 17~0~-26S5 NATIONWIDE INSURANCE Recommendations Insured: Beverly A. Grindley Survey Location: P.O. Box 1394. Carlisle, PA 17013-6394 Date of Survey: September 23, 1999 Policy Number: 58 37 HO 704 125 The meommenda~ons lisled bekM, and on any and all atta~ed pages, are based on oteen~9ons and/er Interviews at ~e tkno of equipment Is gle legal reegonsllglity ol' b Insured. Nationwide asmmms no responsibility ira' the manaoement or ~u.&ul of the employees shall be liable foe any ~ oiher than as covered t~ insurance Is~ued by the o0mpeny. Failure to respond to the follow/ng recommendations could result/n the termination of your coverage. You may become elig/ble for coverage/f you: 99-1 Correct foundation problem. Foundalion is starting to settle. 99-2 Properly install footers below frost line. 99-3 Waterproof basement walls. EXHIBIT C McCorkei Construction Services Inc. 14~5 Zdmmerman Road Carlisle, FA 17013 Plton~ (717) 243-7~22 / Fax (717) 243-3822 Cetlul~r: (717) 27~5M2 "We do it right the first time" Janua~ 17,2002 Mr. & Mrs. John Griffith P. O. Box 1394 Carlisle, PA '1 ?0'13 Re: Demolition & Rebuild ExletJng New Home (Approximately 1694 8(I. Ft., Split Level Style) Louated at 36 Watson Drive, Carlisle. PA, Dear Mr. & Mrs. GrilTrth: This contra~t provides an estimate for the necessary labor and materials to perform the work required by completing the proposed prolect within the scope of this description and prints supplied by customer. It is your responsiblrlty to work with McCorkel Construction ~ervioes, Inc. to develop a dear understanding for ell legal, site end structural oon.~idemtions for WhiCh yOU should have an understanding. This description has been prepared in a manner that reflects the information es it relates to your expectations and the commitments of Mo~orl(el ConstrUCtion Services, Inc. If, for any reason you or McCorkel Construction Services, Inc. make changes, said changes must be In written form clearly explaining the change, the amount of money involved and how the payment/credit will be handled. Change orders require a deposit of 50% upon execution of the change order and remaining balance upon completion, This contract supersedes all other specifications, drawings and/or any other Information provided by client, unless otherwise noted on proposal. The following (wherever applicable) description has been prepared to provide a general idea of what we expect will be involved. As the work progresses, you will be kept informed of each development and the options which are available, thus enabling you to make choices based on your expectations and the monetary amounts involved. All materials supplied and installed by contractor are to be as specified and to carry manufacturer's warranty. All work will be completed in a workman like Page Two manner. Our labor carries a one-year warranty. Contractor is not responsible for any material or labor supplie~l by customer or customers subcontractors. In the event legal representation ia sought due to customer's breech of contract, the customer ,,viii be responsible for the contractor's legal fees. In the event a dispute arises regarding satisfaction of workmansh{p, and/or materiels, both parties agree to bind themselves over to arbitration by a qualified arbitration panel. Color variations are common and may be evident when new work connects to work in an existing area, due to but not limited to dirt, dust, smoke, fading, weather conditions, changes from manufacturer, variations in paint colors, discontinued materials, unknown manufacturers, etc. Shrinkage or eettfement c, racke in blacktop, o'ON~rete, mortar joints, block, britt(, stone, applied masonry tinlshea, ceramic tile and joints are common end should be expected within certain tolerances. Any cracks greater than 118" in width will be repaired by aurraca patching or pointing; builder will not be responsible for color variations. Splits and warping in woad are common due to humidity levels causing expansion and contraction of the wood, and uneven walls, oeiling~ end floors, and should be expected within certain tolerances. Expansion and contraction of the wood may also cause cracks and nail pops In drywall and plaster, Mm Joints, and palm to mack. Filler or caulking anc~ m~nlsl~lng o1' t?le Immediate area will repair any cracks or nail pops that may occur within the warranty period greater than 1/8" In width; builder will not be responsible for color variations or warping of wood. Areas that ere dug up may seffle after exposure to certain weather conditions or traffic patterns, those areas would encounter an ex'tm to return and fill back to grade. We will not accept responsibility for any problems arising frDm pre- existing property (sinkholes, buried debris, etc.), electrical, plumbing, structural, and/or mechanical system deficiencies. Any visible discrepandes that am evident relative to the work involved must be addressed In writing within thirty days after work Is completed and approved. Our workers will arrive to protect oustomer's property ae rough as possible, but with the nature of the job, we cannot be held responsible for any cracks or nail pops in the piaster, drywall, masonry, or dust that may occur during construction. Customer responsible for removing and replacing existing possessions and furniture from work area, walls, and ceiling, to protect from any damages. Page Three ,January !7, 2002 Customer gives contractor permission to use clriveway, waikways, patios, lawn, and or parking aresa for access to work. Contractor will not be held responsible for any oraoks In ourbs, walk'ways, Patios, parldng areas, and driveways or uneven areas due to delivery of materials or accessing the property with vehicles, unless specifically noted in the contract. The customer will give contraotor permission to trim or remove existing trees and bushes to a~ss tr~e work area if necessary. Customer ia responsible to carry sufficient homeowner's insurance coverage necessary to cover existing home including the cost of'the project. Customer's insurarce covem~ takes affect when any material Ir. Inet. ailed, fastened, etc., In or on the project McCorkel Construction Services, Inc. !s fully insured with liability arid workers' compensation insurance as required by law. Contractor does not guarantee the survival of lawns, plants or shrubs disturbed during or by construction. Customer responsible for watering of lawns, plants or shrul~ to insure survival. We are not responsible for delays to complete work due to situatio~; beyond McCor~el Construction Services, Inc. control. Such as, but not lirrdted to, necessary permits, variances, manufacturers supplying of materials in a tJmely manner, =lellvery of erroneous or damaged materials, posslole c~artlagee clurir~g shipment, and or Installation, manufacturer's or delivery labor stdkes, acts of nature, terrorism, war, or emergency allusions. Any aooount not paid in full within ,10 days (unless prior agreed upon armngemenl~ have been made} upon aompleflon of prejeot will be oharged an addl'~onel 1.6% Intereat per month on remaining balanoe (which is an annual rate of t8%. Demolition of Exleflna Home aa ia in Rouah Fr;mlng Staae (no inteltor or 1. Due to existing structural and labor daflcienoles addressed by Yingst Engtneam, Heartland Homes, and visual Inspection by McCorkel Construction the exis§ng home wirl have to be demolished, 2, McCorkel Conetru~on will not give any guarantee on the existing home to rebuild or correct (mottetery value would be less expensive to demolish and rebuild). 3. The existing doors and windows would be salvaged and mused to rebuild in a newly constructed home. 4. Clean up and remove debds fromjobsite. Page Four 5, Provide labor and materials for ['he following specifications. Parmite. BlueDrinf~ and/or Rsouin~l Customer m~ponslble for providing all permlt~, blueprints, and/or required tees. Bulldina Site Prepare'don and ;~-c-~vaflon 1. Excavate area in existing site for rebuilding of home as per plans. 2. Back fill around the exterior of foundation with the existing onalte ffil and then grade the lot. 3. 81ope the grade away from home approximately 1" per foot for the first 10' and grade ac~3rdlng to available slope for remainder of lot, 4. No allowances for extra fill or topsoil If needed. (Extra charges for fill and/or topsoil If needed,) 5. Spread topsoil on lot to approximately 4' thick with existing topsoil on lot. 1. Form & pour 3000PSI concrete footings approximately t §" wide x 8" thick with two f/~ steel reinforcin9 rods. 2. Form footem with Form-A-Drain system and tie into sump crock. Basement Ws!I~ & 1~ Floor W~_J!. 1. Lay 10~ block to required floor height in basement & front porch (approximately 8' high), and to floor framing height for 1" floor (garage/family room). 2, Install one W1235 steel beam to clear span basement. 3. Install cement ~tucco on exterior of block wall end spray sealer. 4. Install tie down straps In walls approximately every 4', 5. Install hvo vinyl basement windows approximately 32" wide x 18" high. Interior Conorete Slabs 1. Install approxJmately 8" thick 2b cru~ed stones under slab areas in baeemant and 1'~ floor, 2, Install sump crock (no sump pump) in basement and install pipe for radon gas to exterior of basement walls. Page Five 3. install plaatlo vapor baffler and 1.5" Styrofoam insulation uno, er slab in family room. Pour 3000PSi concrete with fiber reinforcement for basement and family room slabs. 4. Pour 3000PSI concrete with fiber reinforcement for basement and family room slabs. Framina: Floor~ Wall~ and Ro;~ 1. Install sill sealer on top of basement walls 2. In~el! pressure-treated 2" x 6" plates on walls. 3. Frame floor over basement and 2re floor with 2' x 10~, 16" O.C. floor and box joists. 4. Sheath floors with ~' T&G ^clvanteR flooring, glued and nailed into place. 5. Frame all walls with 2" x4" x 8' studs 18', O.C., aJlow for window and door openings ss per prints. 6. Install proper size hsedem ov~ all openings for doors and windows. 7. Sheath exterior walls v~th 7116 OSB. 8. Install tms~e~ on roof and poroh, 4/12' pltoh with 1' overhangs on both ~idee; no overhang on gable ends. 9. Install mlcrolam beam in family rqom for second floor to clear span. 10. !nstall saps to I~asemen! and 2"" floor (pta-bUilt white pine with enolosed nsem, 10" tread 7-1/2" risers). 11. Install beam on front perch and two colonial-style, turned 4' x 4" wood. paint - grade poets. 12, Sheath roof withS/8" OSB. 13. Irtetall pressure-treated fitting strips on block wall areas in family room. Rooflnn 1. Install 15ih felt paper on roof 2. Install drip edge around exterior perimeter of roof. 3. Install 25-year self--sealing three tab fiberglass shingles with 5" exposure. 4. Install fiber type ridge vent on ridge of roof. 1. Reinstall doom and windows from existing home. Page Six January 17. 1. Install medium-priced dOuble five Dutch-style vinyl siding and accessories on exterior of home (customer's choice of standard colors). 2, /n~tall white oenter ve~ oofflt oll overhangs front and bacl(, 3. install solid soffit on porch ceiling and wrap beam with alumlr~um coJlstock. 4. Install white aluminum fascia on eaves and gable face boards. 5. Install white seamless 5" K style atuminum gutters with hidden hangers and downspouts. 6. Install standard vinyl ahuttam on all windows (cu=tomer'e ohoico of standard Porch, 8!dewalk and D~ck 1. Install approximately 4" thick, 3000PSI, fiber reinforced concrete on front porch. 2. Instal~ concrete sidewalk from porch to driveway approximately 3' wide X 15' long. 3. install a pressure-treated wood deck on rear approximately 8' wide x 12' long w{th steps and railing (picket style railing). 1. Install 200 AMP meter ba~e, 200 AMP 40 position panel box. 2. InStall receptaolea, switches, etc. No fault receptacles in bath, two exterior ,,nd kitchen counter areaB. Interior and exterior lighting (as pa- allowance of $1,250.00 for lights and bath fans). a Switches as per pdnts for IigMJng, bath fans, and receptacles. ~ Wire for water heater. [3 Kitchen appliances: stove, range hood, refrigerator, dish washer, and garbage disposal. a Wire for Heat Pump, central air. ~ Conneotions for septic system and alarm, [3 Wiring for Well pump. [3 Wiring for washer and dryer. r~ Wire for interconne~ng smoke alarms. Page ,Seven 1, Install supply and drain lines for kitchen, one end one-half baths and laundry. 2, Install bath, kitchen, fixtures and faucets (es per installed allowances of $2,650,00), [3 One one-piece combination tub and shower unit with faucet and drain esesmbly. [3 Two toilets with seats. [] Two vanities with tops, faucets, and drains, [3 install one double bowl Idtchen sink, with faucet~, drain and basket stralnem, n Install one garbage disposal. [] Hook up dishwasher. 3. Install laundry box for wa~i~er. 4. Install two fl'oat-frae exterior faucets. 5. I~tall pump and holding tank with controls and tie into exJstJrtg well. 6. Hook sewer line into existing septic system with pump already inm~alled, 7. Install one 80-gallofl water heater. Inaulatiop 1. Insulate walls with 3,5' wall spray cellulose Insulation, 2. insulate ceilings with approximately 9" R30 blown cellulose insulation. 3. Insu!ata exterior perimeter of box joists with fiberg!ass insulation, 1. Install neceuary c~ucts and grills fOr supply and return air. 2. Install electric heat pump properly sized to heat home. 3. Install central air properly sized to cool home. Dntwall 1. Drywall all walls and ceilings with ~" drywall, except no dlywall in basement, 2. Install water-resistant drywall in full bathroom. Page Eight Kitohatl Install kitchen as per installed allowance of $4,800.00. Install kitchen cabinets (no soffit). Install Formloa oounte~ps with 4" bac~ksp~aeh, Install appliance~ as per installed allowance of $2,600,00 a Install refrigerated freezer. a Inatall slide-In range. a Install ductad range hoed. c3 Im~tall g,.rbage disposal. a Install dishwasher. Trim Work and Interior Doo~ 1. Install paint-grade standard colonial-style 2-3/8" w~de trim around doom and wlndow~. 2. Build jambs for window extensions and install. 3, Install stools on windows. 4. Install paint-grade masonite, six panel, colonial interior doors as per pdnt, 5, !nstalJ paint-grade wood handrail on one side o.f thrse sets of steps, §, install paint, grade standard colonial style 3-1/4 baseboard In main living areas. 7. No trfm work In basement area. 8. Install One shelf with clothes rod in each closet. g. Install two access areas to atria and trim. Pelntlna 1, Pein+. walls and ceiling one coat primer and two finish coats, latex vinyl fiat, ono oolor. 2. Paint all interior trim one coat primer and two finish coats, latex enamel, and one Golor, 3, PGIn~ exterior of door and porch posts one coat primer and two finish costs, latex enamel, one color, Page Nine _F!;orinm 1. Install all underlayment where needed for vinyl flooring, and floor finishes as per allowance of $3,800.00 installed price. I. Install mlrrom, towel bars and toiJe! paper holders per miscellaneous installed arlowance of ~,400.00. 1. Cut area for driveway approximately 1500 square feet x 6" thl~k. 2. Instal/approximately 6" ~hlr, k 2a modified crushed stone and level 1. No allowance for sep0¢ system. 2. No allowance fo~ well or pump. 3. No allowance for landscaping. 4. No allOwanoe for lawn seeding. Total E.~flmetad Coat Demolition of Home & Rebuild New Home:S136,180,00 As per bank draws These prloe~ am good for a period of 60 days from above date. The above priceS, specifiCations and conditions are ~atlsfactory and we hereby accept, You are authorized to perform the work as specified. Payment w~ll be rtlade as outJinecl above. This contract cons~ffutes the sole and entire agreement between the parties hereto and no modifications of this cor~tract shail be binding unless attached heneto ,.nd signed by all parrJes to tr~e agreement. The parties do set their hands end seals on the 2002. - ..... day of 'Joesp . cCorkel EXHIBIT D MA,9.E .T. UDREN & ASSO~IATBS ATTY Z.D. ~. 0430~ ~Y K~, N~ 08034 856-482-6900 Nati0~ C~ty ~2~2 Ne~rk. Drive ~sbU~, OH 4~4~ Plaintiff · Beverly A. Grin~ley 'P.O. Box 1294 'Carlisle, PA 17013 Del e~ldant (s) ATTOP.NEY FOR PLainTiFF 'f~TH~N TO ~ T~U~ COURT OF C0~ON CIVIL DIVISION Cumberland Co%tnty AMENDED COM~LAINT· IN MORTGAGE FOR~CLosuP~ FILED PURSUANT TO COURT ORDER DATED DECEMBE~ 17, ~01 YOU '~ BE~ S~ ~ ~T. If you wish to defend ela~ set for~ ~ th~ follow~ pa~es, ~u ~st t~e action wi=h~ ~=y (20) ~ays after this Co, lain= ~d Notice ~e~d, by ~rin~ a ~it~ appe~c~ perso~ly or by atto~ey ~d filin~ ~ '~iting 'w~th the Co~t ~ur defenses ~Jections ~o =he cla~ ;et fo~h ag~n~t you. Y~ that if ~u.fail to do so the case may proceed without, y~ ~ a Jud~en= ~y be '~tered a~a~=. ~ by the Co~t wlth~t f~thar notice for ~y ~n~ ~aimed in the C~%~l~n= or for claim or relief re~e~ted by the Plaint'iff. You ~y lome money or pro~y or other rights imDort~t to ~u. X~ ~H~.T~ ~S P~ TO ~O~ ~ AT O~. SET FO~ ~ TO F~ O~ ~ YOU ~ GET L~ ~p. LAWFE~S REFERRAL.SERVICE C~mherland County Bar Association 2 L/berry Avenue caxlisle, PA 17013-~3S7 717-2%9-316g or $00-990-9108 ~.e hah demendmdo & usted en la torte. ' si ust~ ~i~e de~e~4e~e t~ ~inte (20] ~as de plazo al partir de la fec~ de la d~ y la notification. ~ce falta asea=ar ~a-c~cia e~cr~ta o ~ perso~ o con ~ ~ado ~ entre~ a la ~orte ~ fo~ e~crita ~us defensae o ~s ob]eci~e a las d~s en conga de ~ pereo~. S~a avisado ~e si us=ed no se ~fie~e, ~u~ ~.p~vio aviso o notificaclon'. ~s, ~a co~e pue~e deci~ir = favo~ del d~d~te y re~iere ~e usted ~pla ~n to~s 1~ provisiones de esta d~de. Ust~ ~ede ~er~ dinero o sus ~ro~iedade~ = otro~ derechos ~ort~te~ para usted. Cumi~rl~nd County Bm, Association Liberty Avenue Carlls~ PA 17013-3387. 717-24~-3166 or $00-99~-9108 NATIONAL CiTY MORTGAGE,: IN THE-COURT OF COMMON PLI~A,S OF Pl~ntiff : CUMB~ COUNTY,. PENNSYLVANIA BEVERLY A. oRINDLEY, ' DefencI~ : CIVIL ACTION- LAW : NO. 0!-1fig6 CFVIL TERM ,. IN'RE: DEFENDANT'S MOTIONFOR. . SUMMARY/UDGNil/NT and PLAINTI~,.y.. MOT[ON FOR LEAVE TO AMEND COMPLAINT st~Om~ ~o~ i, i. ~i o~ j ' ,. .' .. :~ '...: . ..' :'.":'."::.': ..,:.:~. :, ', ..,: ... :.. '.. . ' *f~nitin! s M61/on,f~:;Sttmmar~ Judgment, and'Of Piahti s Mot/on for 'Leave TO Ani~d ,C,b~N~i. Defendaut,~ Motion for Summ~ Iud' nt is den/~d and Plaintiff's ;,,, .... ...., ,2 ,,2..~:,~ , _fy ~11. for ~:!,o, Amend Complsint is granted: BY rm~ coLr~r,. .. .. 7~ ~?. ~/- -~..~..., .. -. No~h Kiug~ Hi.way i..~Sulte f00 Cl~ry D'fll~ N$ 0~034 A~om~-y for ~Pl~;r~qff '.~.'JG?:~', · ::. _'. ~.-;...: ~.,.. -7: ~' ..... .... :"~'~ '~' '~'"*~' ~! ':'": 'k ..... : .~ i~ . SUl~ 200 ' ........ -" ' -~'" .... ' '&'PA l~0f0 "' :,~,,i.: ,~ ~:~'~$blll' ..... :~ .: ~.:, :-~ ; . ..,:.. :, !:., :., .,"...'~ NOTICE The amount of your debt Is as stated in the attached doenment. The name offlxe crediter to Whom the debt is owed is as named in t~e attached document. Unless you notif~ us Withh, 30 days after receipt of this Notice and the attached document that the validity of the stated debt, or any Portion ofl~ is disputed, we will ~sume that the debt'h v,i~a. If you do notify us in writing of a dispute ~ the 30 day perioc~ ~we will obtain veri~ _~on 'of the debt or a copy of a judgment against you, and mall i~ to yo*u. If you do'not dispute the debt, it is not an admission of llabillty on your part. Also, upon yoltr written request within the 30 day period, we wfllprovide you with the n~me and address of the oritinal creditor if different f~om the Current creditor. If you notify us in wrifin~ within the 30 day period as stated above, we will ceuse ' collection of your debt, o? any disputed portion of it, untfl we obtain the information that iS reqllh'ed alld mall it to you. Once ~e have mailed tO you file Feqttit-ed illfox*ma~OiL~ We will then' eont/nue the ce~Je~don of your debt.. This inw flrmis deemed to be a debt collector and thi~ Notice and the attaehed document is an attempt to collect a debt, and any informmflon obtained will be used for that purpose. LAW OFFICES OF I~L4.RK J. UDREN is/Mark $. Udren, Esquire 1040 N. K/uts Highway, Suite 500 Cherry ~ NJ 08034. (~6) 4a2-~900 1. .Plaintiff is the Corporation d~.~ignated as'such in the caption on ~ preceding page. If Plainti£~ is a~ assignee then is su~ by virtue o~ the follO~ng recorded ~si~ts of Keco~ to: N/A 2. Def~ (s) is =~ ~d~l desi~ed as su~ on =he eap~i~ on = preceding page, ~ose las= ~o~ ad, ess is as set fo~h in the. caption, ~d ~ess desi~ated othe~ise, is the r~ o~r(s) ~d mo~gagor(s} of the pr~ses be~ foreclosed, ~ere~ter described, at the ~t~ce ~d reT/est o~ Defendant(s), Plaintiff (or its predecessor, herinafter called Plaintiff) lo~ed to the 'Defender (s) the ~ appe~in~ on 'Mortgage, which Mo~age was ~e~ted ~d delivered to 91~ntlff as sec~ity for the i~te~ess. Said Mortgage is inco~orate~ herein ~. reZereuoe in acoor~ce with PA.R,C.P. 1019 ~e i~o~tion. rggar~in~ the Mortgage-being fSr=closed is as MOR~ P~ZSES: 2 Cros~roa~ School 36 Watson Dri~ ~CIP~I~/~$~P/BOROUGH~ West Pe~s~r~ T~s~p DA~ ~: 7/21/99 ~K= 15S8 P~E: 482 Th~ lecjal description of the mortgaged premises is attached hereto and made p~ hereof'. 4. Said mortgage is in defa~t ~emuse of ~ailure to co~ly ~%h ~e Consk~ction/Pe~ent aider which ~tes t~t =ont~ction of the residence 's~11 be co~leted on or before . z/zolg ,. mortgage, plaintiff accelerated the ~,ort~age, which amount to date has not been paid. 6. By the =erms of the MortSage, upon breaCh a~d £ailure to cure said breach after no=ice, all sums secured by said Mortgage, together with other Char~es authorized by-said Mortgage itemized below, are /n~mediately due. ?. After demand, the Defendant (s) continues to fail or refuses to comply w~th the terms of the Mortgage by failing or refusing to pay the accelerated amount due, itemized a~ of March 8, 2001, as Principal cf debt due and unpaid ~om 2/~/00 (the per di~ inte~st acc~in~ on ~s deb~ is $5.52 ~d ~2 ~ should ~. added each day after Title Repor~ Court Costs (anticipated. excludin~ Sheriff,s Sale costs) Escrow Overdraft/(Balance) (The monthly ascrow on ~his account is $0.00 ~n~ that sum ~hould be edd~d on the first of each month after 3/8/01) ~ate Charges (mon=~l¥ la~e charge of $0.00 shou/d be addsd on the fifteenth of each month after 3/8/01) Cexporate Advance $25,219.86 2,219.04 250.00 280.00 0.00 ' 0.00 518.40 · Attormeys Fees (anticipated and actual · to 5% of p=inclpal) ~ TOTAL $29,748.29 8. The at~0rney,s fee se= forth above are ~n conform/fy with the mortgage do6um~nts and P~-~-ylvanla lkw, and will be collected in the event-of a third party .purchaser a= Sheriff~ Sale. If the mortgage is reinstated prior to the sale, re=sonable attorney,s fees will be charged in &ccordance with the reduction provisions Of Act 6, if applicable, 9. Notice of Intention to Foreclose under Act-6 of 1974 of the CommonWealth of ~e~sylvania is no= 'required as the original 9rin¢ipal amount exceeds the ~um o= ~50,000.00. The no~ice specified ~y the P-~-s¥1vania ~omeowner's ~mergency Mortgage Assi~tance Pro~ram, Act 91 of 1983,'has not ~een ssnt because the Mortgage is i~.s.u~..ed by the Federal Housi~Adminis~ra=ion (.FHA.) ~nd the noti=e is ~herefore not required.. WHEREFOP~E,' the Plaintiff demands judgment, in rem, aga~nmt the. Defendant(s)' herein in the sum of $29,?48.29 plus inter~st. costs ~d attorney~ fees as more fully.se~ forth in the Complaint, and fo: foreclosure and sale of the Mort~ag~ premises. Mark J. Udz=n, ESQUIRE MARK' J. UDP. EN & ASSOCIATES A~torney for Plaintiff .Attorney I.D. No. 04302 Mark J. Udren~ Esquire, hereby states ~t he is the attorney for the PlaintifE, a corporation unless otherw~s~ that he is authorized ~o ~ake ~his ~erif~a~ion ·oes So because o~ the exi~enclms re~mr~n~ t~s ma=t~r, ~d becaum~ Pla~tiff must' ~ri~y ~ of the ~fo~ation' t~ough ~s, ~d becaus~ he ham 9er~o~l ~owl~ge of. mo~ o= ~ ~de ~ ~h~ for~oiu~ plea~ng are ~e ~d corree~ =o ~he of ~s ~owledge, i~o~!on ~d belief ~ the so, ce of his inEo~atf~ is D~lic reco~s ~d repo=ts of Plaintiff's The ~dersi~ed ~ders=~s ~t ~his ~tat~en~ herein is ~J~c= to. the p~ltles of 18 Pa.C.S. S~ction %904 relat~n~ to ~swo~ falsi~ication to authorities. Mark J. Udren, ESOUIP~E NA~K J. UDPa~N & A~SOCI~I~ES POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. TO: Defendant and Christopher Restak, Esq. You are hereby notified to reply to Oakwood Custom Homes' Reply within 20 days or a default judgment may be entered against you. C~ Grainger Bowm~u~, Attorney for Plaintiff COURT OF COMMON PLEAS,-;, CUMBERLAND COUNTY ~ EQUITY ' ' DOCKET NO. 02-245 :~ OAKWOOD CUSTOM HOMES, INC's REPLY TO DEFENDANT'S NEW MATTER, REPLY TO COUNTERCLAIM AND NEW MATTER Reply to Defendant's New Matter 29. No responsive pleading required whereas paragraph 29 merely incorporates previous paragraphs.. 30. Denied. By way of further answer, the averment contained in paragraph 30 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. 31. Denied. By way of further answer, the averment contained in paragraph 31 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. 32. Denied. Further, the averment contained in paragraph 32 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied HB:43608v1 4116-01 and strict proof thereof is demanded. 33. Denied. By way of further answer, the averment contained in paragraph 30 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. 34. Denied. By way of further answer, the averment contained in paragraph 34 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. Reply To Defendant's Counterclaim No responsive pleading is required whereas paragraph 35 merely incorporates previous 35. paragraphs. 36. Denied as stated. BY way of further answer, the Memorandum of Understanding, which was the result of a mediated settlement and forms the basis for this action seeking specific performance. Further, the Memorandum of Understanding settled all claims between the parties arising from the improvements to the property referenced in the Construction Agreement attached to Defendant's Answer, New Matter and Counterclaim. Further, the Memorandum of Understanding specifically recognized and references the mortgage foreclosure action docketed at before this Court at 01-1586. In Defendant's Answer, it is admitted that the amount of consideration promised by Plaintiff Oakwoo~l Custom Homes in the Memorandum of Understanding is more than sufficient to satisfy the' amount of Defendant Grindley's mortgage. See Complaint 4[ 15 and Answer ~ 15. By way of further answer, the mortgage foreclosure action (originally commenced before this Court at 01-1586) did' not allege that Defendant Grindley breached the mortgage based upon her failure to construct the single HB:43608vl 4116-01 2 family residence. Upon information and belief, the original complaint in the mortgage foreclosure action was amended by National City Mortgage on or about January 9, 2002 stating a different claim that Defendant Grindley's failure to construct the single family residence was a breach of the mortgage agreement. Therefore, the Amended Complaint in Mortgage Foreclosure was filed after Plaintiff Oakwood and Defendant Grindley settled the claims arising from the Construction Agreement, which settlement provided sufficient funds to satisfy and discharge the mortgage. Moreover, the amended mortgage foreclosure complaint was filed after December 31, 2001, which was the date that settlement under the Memorandum of Understanding was to occur. See Oakwood's Complaint ¶~[ 6-8 and Grindley Answer ~[¶ 6-8. 37. Denied. The Construction Agreement is a written document which speaks for itself and any conclusions or characterizations of said document are specifically den/ed. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions between the parties relating to the Construction Contract. 38. Denied. By way of further answer, Defendant Grindley refused and denied Plaintiff Oakwood access to the project site. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions r61ating to the Construction Contract. ' ' 39. Denied. By way of further answer, Defendant Grindley refused and denied Plaintiff Oakwood access to the project site. By WaY of further ansWer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and HB:43608v1 4116-01 3 actions between the parties relating to the Construction Contract. 40. Denied. Plaintiff Oakwood lacks sufficient knowledge or information to form a belief with regards to truth of the matters asserted by Defendant Grindley in paragraph 40 and demands strict proof thereof. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. 41. Denied. By way of further answer, the estimate attached as Exhibit C to Defendant's Answer, New Matter and Counterclaim is a written document which speaks for itself and any conclusions or characterizations of said document are specifically denied. By way of further answer, it is expressly denied that said estimate contains an accurate reflection of costs. 42. Denied. By way of further answer, the averment contained in paragraph 42 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15,2001 settled all claims and actions relating to the Construction Contract. 43. Denied. Plaintiff Oakwood lacks sufficient knowledge or information to form a belief with regards to truth of the matters asserted by Defendant Grindley in paragraph 43 and demands strict 'proof thereof. By way of further answer, the Memorandum of Understanding executed b)~ Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. 44. Denied as stated. It is denied that the basis for the mortgage foreclosure action when it HB:43608vl 4116-01 4 was originally initiated was based upon Defendant Grindley's failure to satisfy the Construction/Permanent Rider. By way of further answer, upon information and belief the mortgage foreclosure complaint was amended to add this claim on or about January 9, 2002. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract and required settlement under said agreement on or before December 31,2001. 45. Denied. By way of further answer, the averment contained in paragraph 45 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakweood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract and required settlement under said agreement on or before December 31, 2001. 46. Denied. By way of further answer, the averment contained in paragraph 45 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual it is denied and strict proof thereof is demanded. By way of further answer, the Memorandum of Understanding executed by Plaintiff Oakwood and Defendant Grindley on November 15, 2001 settled all claims and actions relating to the Construction Contract. New Matter Resi)onsiv~ to Defendant's Counterclaim 47. Defendant Grindley's counterclaims are barred by the applicable statute of limitations. 48. Defendant.Grindtey's counterclaims have been released through her entering into the Memorandum of Understanding with Plaintiff Oakwood Custom Homes, Inc. HB:43608v1 4116-01 5 49. Defendant Grindley's counterclaims are barred by the doctrine of estoppel based upon her refusals of Plaintiff Oakwood's tenders under the Memorandum of Understanding. 50. Defendant Grindley's counterclaims are barred by the doctrine of estoppel based upon her refusal and denial of Plaintiff Oakwood's access to the project site. Defendant Grindley's counterclaims are barred by the doctrine of accord and 51. satisfaction. 52. award. 53. Defendant Grindley's counterclaims are barred by the doctrine of arbitration and National City Mortgage's original Mortgage Foreclosure Complaint did not aver that Grindley was in default based upon her alleged failure to comply with the Construction/Permanent Rider provision of the mortgage. 54. National City Mortgage filed an amended Complaint on January 9, 2002 alleging for the first time that Grindley was in default of the mortgage based upon her failure to comply with the Construction/Permanent Rider. 55. Grindley's execution of the Memorandum of Understanding granted and conveyed to Oakwood the equitable title to the real estate. 56. Grindley's refusal of Oakwood's tender under the Memorandum of Understanding necessitates Oakwood's involvement in the mortgage foreclosure action. 57. Grindley is liable for Oakwood's costs and attorneys fees associated with protecting its equitable interest in the mortgage foreclosure action that is docketed before this Court at 01-1586. HB:43608V1 4116-01 6 WHEREFORE, Oakwood Custom Homes, Inc., respectfully requests that this Honorable Court decree and direct Beverly A. Grindley-Griffith as follows: I. That the defendant, Beverly A. Grindley-Griffith, be enjoined and restrained temporarily until final hearing and permanently thereafter from conveying, selling, encumbering, or transferring the premises known as 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania. 2. That upon the payment by Oakwood of the consideration identified in the Memorandum of Understanding, defendant, Beverly A. Grindley-Griffith, be ordered to provide clear title to the property by special warranty deed, free and clear of all liens and encumbrances backed by an attorney certificate and that clear title to the property be provided no later than April 30, 2002. 3. That all counterclaims asserted by defendant, Beverly A. Grindley-Griffith, be dismissed with prejudice. 4. That such other and further relief that the Court deems appropriate be granted including costs, penalties, and attorneys fees and any other relief as permitted by law. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMA_~ & LOMBARDO, P.C. C. Grainger ~vman I.D. Cf 15706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: February 13, 2002 HB:43608V1 4116-01 7 VERIFICATION I verify that the statements made in this Oakwood Custom Homes, Inc. 's Reply to D ' efendant s New Matter, Reply to Counterclaim and New Matter are true and correct to the best of my knowledge, information and belief. I understand that any false statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. C. Grainger Boy, an, Esq. Attorney for Oakwood Custom Homes, Inc. HB:43358v1 4116-01 CERTIFICATE OF SERVICE AND NOW, on February 13, 2002, I hereby certify that I have served a tree and correct copy of the within Oakwood Custom Homes, Inc.'s Reply to Defendant's New Matter, Reply to Counterclaim and New Matter upon the following person(s) by regular first class United States mail, postage prepaid. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 C. Grainger Bo~ HB:43613vl 4116-01 Oakwood Custom Homes, Inc., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 Beverly A. Grindley-Griffith Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S NEW MATTER COMES NOW, This twenty-second 22nd day of February, Defendant, Beverly A. Grindley-Griffith, by and through her attorney, Christopher Restak, and files the following Answer to the New Matter of Plaintiff, as filed on February 13, 2002. 47. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. By way of further answer, Plaintiff was properly served with a duly executed Writ of Summons on 06/28/00, thereby tolling the statute of limitations. 48. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 49. Denied. Plaintiff's allegation is a conehision of law to which no responsive pleading is required. 50. Denied. Defendant's opposition to Plaintiff's entry to the project site was based upon Plaintiff's inability to obtain the required inspections and approval of Plaintiff's noncompliant work. Defendant exercised her fight to exclude Plaintiff from the project site, in good faith and for cause, consistent with her rights under her construction contract and consistent with her obligations under her mortgage contract. 51. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. By way of further answer to Plaintiff's averments, Defendant has never recognized the document (Memorandum of Understanding) as being a completely integrated expression of a final agreement between the parties. Defendant avers that Plaintiff's argument, that an accord and satisfaction has occurred, is in error and not applicable to the facts of this case. 52. Denied. The averment of paragraph 52 is a legal conclusion to which no responsive pleading is required. To the extent that it is deemed factual it is denied and strict proof of this averment is demanded. 53. Admitted. 54. Admitted. 55. Denied. Defendant has, at no time, prior to or contemporaneous with the signing of the document, ever granted Plalntiffan equitable fight in the property known as 36 Watson Drive, Carlisle, Pennsylvania, also known as Lot 2, Crossroad School Road, Carlisle, Pennsylvania. 56. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 57. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. WHERFORE, Defendant Beverly Grindley-Griffith, requests that this Honorable Court to dismiss Plaintiff's claims, with prejudice, and enter judgment in her favor and against Plaintiff. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA. Supreme Court I.D.# 81514 Attorney for Defendant VERIFICATION I, the undersigned, Beverly A. Grindley, hereby certify that I am authorized to verify this pleading, on my own behalf. I hereby affirm that the facts contained in the foregoing Answer are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: CERTIFICATE OF SERVICE I hereby certify that I served a tree and correct copy of the foregoing Answer to Plaintiff's Reply upon, C. Grainger Bowman of Powell, Trachtman, Logan, Carle, Bowman & Lombardo, located at 114 North Second Street, Harrisburg, Pennsylvania 17101, by United States mail, first class, postage prepaid, on February 22, 2002. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA. Supreme Court I.D.# 81514 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, on February 26, 2002, I hereby certify that I have served a true and correct copy of the within Motion for Judgment on the Pleadings upon the following person(s) by regular first class United States mail, postage prepaid. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 Ant~r~nyyotter ' ' HB:43613v1 4116-01 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Polter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 PRAECIPE TO LIST MOTION FOR JUDGMENT ON THE PLEADINGS FOR ARGUMENT TO THE PROTHONOTARY: Kindly list Plaintiff's Motion for Judgment on the Pleadings on the argument list for March 27, 2002. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. C. 6r~ger~3owr~an~-''- I.D./# 15706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: March 5, 2002 CERTIFICATE OF SERVICE AND NOW, on March 5, 2002, I hereby certify that I have served a tree and correct copy of the within Praeeipe to List Motion for Judgment on The Pleadings for Argument upon the following person(s) by regular first class United States mail, postage prepaid. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 Anthony S. P~tte~ - HB:43613v1 4116-01 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Atlomcys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, V. BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 CERTIFICATE OF OPPOSING COUNSEL'S CONCURRENCE IN MOTION TO FILE THE MEMORANDUM OF UNDERSTANDING ENTERED INTO BETWEEN THE PARTIES UNDER SEAL AND NOW, Plaintiff, Oaknvood Custom Homes, Inc., by and through its undersigned counsel, files the following statement to supplement its motion to place the memorandum of understanding under seal as Exhibit "A" and in support of the motion plaintiff avers as follows: 1. Before filing the motion seeking to have the memorandum of tmderstanding placed under seal as Exhibit "A," the undersigned counsel attempted to contact Christopher Restak counsel for Defendant for his concurrence. 2. Because Attorney Restak was on vacation, however, the undersigned counsel was unable to obtain his concurrence. 3. On Wednesday, March 13, 2002, the undersigned counsel contacted Attorney Restak and obtained his concurrence in the motion seeking to have the memorandum of understanding placed under seal as Exhibit "A" in order to allow the Court to perform an in HB:43873v1 4116-01 camera review of the document. Again, today I spoke with Attorney Restak in order to confirm his concurrence in the motion. WHEREFORE, Plaintiff, Oakwood Custom Homes, Inc. respectfully requests that this Honorable Court issue an order as follows: Date: March 14, 2002 accepting the Memorandum of Understanding entered into between Plaintiff, Oakwood Custom Homes, Inc., and Defendant Beverly A. Grindley-Griffith on November 15, 2001 for filing as Exhibit "A" to Plaintiff's Complaint; and directing that the Memorandum of Understanding be marked as under seal. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY ~(~C%~.~) ~~ I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 HB:43873vl 4116-01 CERTIFICATE OF SERVICE AND NOW, on March 14, 2002, I hereby certify that I have served a tree and correct copy of the within Certificate of Opposing Counsel's Concurrence in Motion to File the Memorandum of Understanding Entered Into Between the Parties Under Seal upon the following person(s) by facsimile and regular first class United States mail, postage prepaid. Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 Anthony S. Pot~er - HB:43613v1 4116-01 - MAR 0 4 OAKWOOD CUSTOM HOMES, 1NC., Plaintiff, BEVERLY A. GRINDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 ORDER AND NOW, this I~ day of ~/~ ~_~c [. ., 2002, Plaintiff, Oakwood Custom Homes, Inc.'s Motion to File the Memorandum of Understanding entered into between the parties as Exhibit "A" to its Complaint is GRANTED and the Prothonotary is directed to mark the Memorandum of Understanding as under seal. ~>~'istopher T. Restak, Esquire 213 Carlisle Street Hanover, PA 17331 /~. Grainger Bowman 114 N. Second Street Harrisburg, PA 17101 BY THE COURT, hB:43726vl 4116-01 Oakwood Custom Homes, Inc., Plaintiff V. Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, Defendant, Beverly Grindley-Griffith, by and through her attorney, Christopher Restak, files this Answer to Plaintiff's Motion for Judgment on the Pleadings and in support thereof avers the following: 1. Admitted with Qualifications. The allegation is admitted that the Plaintiff commenced this action on January 17, 2002, seeking specific performance ufa mediated settlement agreement (hereinafter referred to as the "agreement"). It is denied that the agreement resolved all disputes between Oakwood Custom Homes, Incorporated and Beverly Crrindley-Griffith. A copy of the Memorandum of Understanding is attached and referenced herein as (Exhibit A). 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. Defendant has raised legitimate issues of fact, regarding the negotiations that culminated in Plaintiff's proffered Memorandum of Understanding, sufficient to deny Plaintiff's request for specific performance on the Memo and the transfer of real estate as described in the Memo. 6. Admitted. 7. Admitted. 8. Admitted With Qualifications. Defendant admits to signing the agreement, promising to transfer the real estate at a future date. The promise to transfer was conditioned upon Plaintifffs mutual performance obligations; namely to provide Defendant with $16,100.00 in addition to the amount necessary to satisfy the underlying mortgage obligation. 9. Admitted. 10. Admitted. 11. Den/ed. The averment is denied as a conclusion of law to which no response is required thereto. By way of further response, as set forth more particularly in paragraph 1 hereinabove, Defendant avers that the subsequent mortgage foreclosure action, as amended by grant of this Court, prevented Defendant from performing on her obligation to transfer title as per the terms of the agreement. 12. Admitted. 13. Admitted In Part; Denied In Part. Defendant admits that current counsel was retained following the signing of the agreement. Defendant however denies that all matters were settled as a consequence of the mediation and therefore den/es that counsel was retained in order to renegotiate already resolved issues. 14. Admitted. Defendant incorporates herein by reference its answer to paragraph 11 hereinabove as though more fully set forth at length. 2 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted With Qualifications. Defendant admits that $45,000.00 (the gross mount of the stipulated agreement) will satisfy the existing mortgage, however the sum of $16,100.00 will not be available, after settlement of the mortgage obligation, for settlement of pending litigation, as described in the agreement. 19. Admitted upon information and belief. 20. Admitted upon information and belief. It is further averred, upon information and belief, that Plaintiff's petition to intervene in Defendant's mortgage foreclosure action was denied by the Honorable Edward E. Guido, on March 11, 2002. 21. Admitted. 22. Admitted. 23. Denied. This averment is denied as it refers to a written document, which writing speaks for itself. The language of the agreement says that the more formal agreement, referenced in paragraph 11, may be specifically enforced through the remedy of specific performance. Upon closer inspection, paragraph 11 refers to a provision concerning Plaintiff's requirement to obtain "appropriate insurance" prior to the conveyance of the property. Defendant avers that the agreement is ambiguous on its face and therefore the specific performance provision is unenforceable. See Memorandum of Understanding, paragraph 12 and 13 (Exhibit ^). 3 24. Admitted. Defendant has raised material issues of fact, as part of a defense to Plaintiff's argument in favor of specific performance, that require consideration by tiffs Court. 25. Denied. This averment is a conclusion of law to which no response is required thereto. By way of further answer, as set forth more particularly in paragraph 13 hereinabove. 26. Admitted upon information and belief. 27. Admitted. 28. Denied. As a result of the latent ambiguities contained in the Memorandum of Understanding, and Defendant's good faith belief that a more formal agreement was to be drafted, prior to formal execution, Defendant maintains that genuine issues of material fact do exist and therefore Plaintiff's motion for judgment on the pleadings is not warranted and should not be granted. 29. Denied. For all reasons hereinabove set forth, and for those reasons that will be set forth in Defendant's Brief, opposing grant of this motion, Plaintiff is not entitled to judgment as a matter of law on the pleadings. WHEREFORE, Defendant respectfully requests that this Honorable Court deny Plaintiff's Motion for Judgment On The Pleadings as there are material issues of fact to be tried at trial. Defendant also requests that this Honorable Corm deny Plaintiff's further request for relief, including costs, penalties, and attorneys fees. 4 By ~~ ( Christopher. Restak, Attorney ~2'I3 Carlisle Street Hanover, PA 17331 (717) 637-5188 Fax: (717) 633-9143 PA Supreme Ct. I.D. # 81514 Attorney for Defendant March 15, 2002 VERIFICATION Christopher Restak, Attorney, hereby states that he is the attorney for the Defendant in this action and that statements made in this Answer to Plaintiff's Motion for Judgment on the Pleadings are tree and correct to the best of my knowledge, information and belief. The undersigned understands that any false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: March 15, 2002 Attorney for Defendant Oakwood Custom Homes, Inc., Plaintiff V. Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer to Plaintiff's Motion for Judgment on the Pleadings upon, C. Grainger Bowman of Powell, Trachtman, Logan. Carle, Bowman & Lombardo, located at 114 North Second Street, Harrisburg, Pennsylvania 17101, by United States mail, first class, postage prepaid, on March 18, 2002. ~sq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA. Supreme Court I.D.# 81584 Attorney for Defendant EXHIBITA OAKWOOD CUSTOM HOMES, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA BEVERLY A. GRINDLEY-GRIFFITH, DEFENDANT : 02-0245 EQUITY BEFORE BAYLEY. J. AND HESS. J. ~ day of April, 2002: AND NOW, this (1) The motion of plaintiff, Oakwood Custom Homes, Inc., for judgment on the pleadings, IS GRANTED? (2) Defendant, Beverly A. Grindley-Griffith, shall, on a settlement date set by plaintiff, convey 36 Watson Drive, West Pennsboro Township, Cumberland County, to plaintiff under the financial terms, and the conditions, set forth in a written Memorandum of Understanding executed by the parties following mediation? (3) The motion of plaintiff for a judgment on the pleadings for reasonable attorney fees and costs, IS DENIED. There are no genuine material issues of fact to be resolved. 2 Paragraph 16 of the Memorandum of Understanding, which provides, "The parties agree that this Memorandum of Understanding may be finalized into a more formal agreement containing, in essence, the terms and conditions set forth herein," (emphasis added), does not require a formal document to bind the parties to the terms specifically agreed to in the Memorandum to resolve their legal disputes. The terms set forth in the Memorandum of Understanding for the transfer of the property to plaintiff are not ambiguous. Plaintiff is therefore entitled to specific performance. Defendant's other objections to plaintiff's motion for a judgment on the pleadings are not legally sufficient to prevent specific performance of the contract she signed to resolve the parties' disputes. C. Gminger Bowman, Esquire 114 North Second Street Harrisburg, PA 17101 For Plaintiff Christopher Restak, Esquire 213 Carlisle Street Hanover, PA 17331 For Defendant Edgar B. Bayley, J.,~ :saa