HomeMy WebLinkAbout05-1109KRIS TSENOFF and PARAMOUNT : IN THE COURT OF COMMON PLEAS OF
DEVELOPMENT, INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. : DOCKET NO. OS - /10?
M & T BANK,
Defendant : CIVIL ACTION
PRAECIPE TO ISSUE WRIT OF SUMMONS
TO THE PROTHONOTARY:
Please issue a Writ of Summons against the above-referenced Defendant. The
Defendant may be served at the following address:
M & T Bank
1 West High Street Fmt,
Carlisle, PA 17013
DATED:
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By:
John R. Fenstermacher
Supreme Court I.D. #29940
Shane F. Crosby
Supreme Court I.D. #92530
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
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Commonwealth of Pennsylvania
County of Cumberland
WRIT OF SUMMONS
KRIS TSENOFF AND
PARAMOUNT DEVELOPMENT,
INC. Court of Common Pleas
Plaintiff
Vs.
No. 05-1109 CIVIL TERM
In CivilAction-Law
M & T BANK
1 WEST HIGH STREET FRNT
CARLISLE, PA 17013
Defendant
To M & T BANK,
You are hereby notified that KRIS TSENOFF AND PARAMOUNT
DEVELOPMENT, INC., the Plaintiff has / have commenced an action in Civil Action-
Law against you which you are required to defend or a default judgment may be entered
against you.
(SEAL)
CURTIS R. LONG
Prothonotary
Date MARCH 2, 2005-
Deputy
Attorney:
Name: SHANE F. CROSBY, ESQUIRE
Address: FENSTERMACHER AND ASSOCIATES, P.C.
5115 EAST TRINDLE ROAD
MECHANICSBURG, PA 17050
Attorney for: Plaintiff
Telephone: 717-691-5400
Supreme Court ID No. 92530
SHERIFF'S R1=RN - REGULAR
CASE NO: 2005-01109 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
TSENOFF KRIS ET AL
VS
M & T BANK
RICHARD SMI
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according
says, the within WRIT OF SUMMONS was served upon
T BANK - - t
ENDANT , at 1400:00 HOURS, on the 3rd day of
at 1 WEST HIGH STREET
CARLISLE, PA 17
by handing to
Ito law,
2005
TAMMY BRICKNER, CUSTOMER SERIVICE, ADULT IN CHARGE
a true and attested copy of WRIT OF SUMMONS together ith
and at the same time directing Her attention to the contents
Sheriff's Costs:
Docketing 18.00
Service 3.70
Affidavit .00
Surcharge 10.00
1n
Sworn and Subscribed to before
me this -_-? day of Z/ Ul?k
A.D.
Prothonotary
So Answers:
R. Thomas Kline
03/04/2005
FENSTERMACHER &
By:
S
ATES
PARAMOUNT DEVELOPMENT, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 05-1109
M & T BANK,
Defendant : CIVIL ACTION
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
(717) 249-3166
PARAMOUNT DEVELOPMENT, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 05-1109
M & T BANK,
Defendant CIVIL ACTION
COMPLAINT
AND NOW, comes the Plaintiff, Paramount Development, Inc., by and through its
attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint,
and in support thereof avers the following:
1. Paramount Development, Inc. (hereinafter "Plaintiff") is a Pennsylvania
corporation with offices at 432 Virginia Road, Mechanicsburg, Cumberland
County, Pennsylvania 17055.
2. M & T Bank (hereinafter "Defendant") is a Pennsylvania Corporation with offices
at 1 West High Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. Plaintiff is engaged in the business of constructing custom homes.
4. On or about July 25, 2002, Plaintiff agreed to sell the premises located at 1941
Monterey Drive, Mechanicsburg, Pennsylvania, on which it was constructing a
residence, to Lee A. Woodall (hereinafter "Woodall") for the sum of $1,100,000 in
accordance with the terms of a written agreement of sale (hereinafter
"Agreement"), a true and correct copy of which is attached hereto and
incorporated herein as Exhibit "A."
5. On the above date, Woodall paid to Plaintiff's agent, ReMax Realty
Professionals, Inc. (hereinafter "ReMax"), the sum of $150,000 as a deposit upon
execution of the Agreement.
6. Paragraph 21(a) of the Agreement provided that ReMax would retain the deposit
monies paid by Woodall in an escrow account until consummation or termination
of the Agreement.
7. ReMax deposited the $150,000 deposit into a separate real estate escrow
account at M & T Bank in Carlisle, Pennsylvania.
8. ReMax was the only authorized signatory on the account.
9. On or about September 24, 2002, pursuant to a written release signed by Plaintiff
and Woodall, the sum of $25,000 was withdrawn by ReMax from the escrow
account and paid to Plaintiff to cover certain construction related expenses,
leaving a balance of $125,000.
10. Beginning in September 2003 and continuing through October 2003, Woodall,
without authorization and unbeknownst to Plaintiff and ReMax, withdrew a total of
$111,000 from the escrow account for his personal use.
11. Defendant permitted Woodall to withdraw the funds from the account, despite the
fact that Woodall was not a signatory on the account and despite Defendant's
knowledge that Woodall was not entitled to the funds.
12. As a result, the balance of the escrow account was reduced to $14,872.61.
13. On or about November 18, 2003, Plaintiff and Woodall executed a document
acknowledging that Woodall had withdrawn a total of $111,000 from the escrow
account and authorizing ReMax to release the remaining $14,872. 61 at the time
of settlement. A true and correct copy of the document is attached hereto and
incorporated herein as Exhibit T."
14. Woodall failed to appear at the time and place fixed for settlement or to pay the
balance of the purchase price as required under the Agreement, or to return the
deposit monies that were taken from the escrow account.
15. Pursuant to paragraph 27 of the Agreement, Plaintiff is entitled to all deposit
monies paid by Woodall as liquidated damages for Woodall's material breach of
the Agreement.
16. Plaintiff filed a complaint against Woodall, alleging breach of contract and
conversion, on January 28, 2005.
17. Judgment by default was entered in favor of Plaintiff and against Woodall on May
13, 2005 in the amount of $125,000.
18. Plaintiff has been unable to recover the full deposit paid by Woodall as a result of
Defendant's unauthorized payment to Woodall of $111,000 from the escrow
account.
COUNTI
BREACH OF CONTRACT
19. Plaintiff hereby incorporates Paragraphs 1-18 above as though set forth at
length.
20. Upon information and belief, the real estate escrow account into which ReMax
deposited the deposit monies paid by Woodall was governed by the terms of a
written signature card signed by ReMax and Defendant. Plaintiff is unable to
attach a copy of the signature card to this complaint because the same is in the
possession of Defendant.
21. Pursuant to the terms of the signature card, Defendant was authorized to release
escrowed funds only upon the written authorization of ReMax.
22. The signature card embodied an express contract between ReMax and
Defendant.
23, The deposit of the funds into the escrow account also gave rise to an implied
contract between ReMax and Defendant that Defendant would disburse the
escrowed funds only to ReMax or upon ReMax's order.
24. The escrow account was opened and existed for the benefit of Plaintiff, and
Plaintiff was an intended third-party beneficiary of the contract between ReMax
and Defendant.
25. Defendant's unauthorized payment of escrowed funds from the account to
Woodall was a material breach of the contract.
26. As a direct and proximate result of Defendant's breach, Plaintiff has been injured
in the amount of $111,000.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$111,000, which exceeds the compulsory arbitration limitations, plus costs and
such other relief as the Court deems just and proper.
COUNT li
NEGLIGENCE
27. Plaintiff hereby incorporates herein Paragraphs 1-26 above as though set forth
at length.
28. Defendant owed a duty to Plaintiff to exercise reasonable care in the
disbursement of escrowed funds.
29. Defendant breached its duty by permitting Woodall to withdraw funds from the
escrow account despite the fact that Woodall was not a signatory on the account
and despite Defendant's knowledge that Woodall was not entitled to the funds.
30. Plaintiff has been damaged in the amount of $111,000 as a direct and proximate
result of Defendant's failure to exercise reasonable care and to maintain the
escrowed funds in accordance with reasonable commercial standards.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$111,000, which exceeds the compulsory arbitration limitations, plus costs and
such other relief as the Court deems just and proper.
DATED O _
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By:
R. ensterm r
Supreme Court 19940
Shane F. Crosby
Supreme Court I.D. #92530
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Plaintiff
VERIFICATION
I, Krestu Tsenoff, President of Paramount Development, Inc., have
read the foregoing Complaint and hereby certify that the facts set forth are true and
correct to the best of my knowledge, information and belief. This statement is
made subject to the penalties of 18 Pa. Const. Stat. Ann. §4904 relating to unsworn
falsification to authorities-
D?Sl2 5???-
DATE
EXHIBIT
«A»
STANDARD AGREEMENT FOR THE SALE OF REAL ESTATE A/S-2K
This form recommended and approved for, but not restricted to use by, the members of the Pennsylvania Association of REALTORS® (PAR).
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SELLER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER (Company) RE/MAX Realty Professionals, Inc. PHONE 652-47OU
ADDRESS 4775 Linglestown Road, FIa.rrisdurg PA 17112 FAX 652-5180
BROKER IS THE AGENT FOR SELLER. Designated Agent(s) for Seller, if applicable:
OR
Broker is NOT the Agent for Seller and is a/an: ? AGENT FOR BUYER ? TRANSACTION LICENSEE
BROKER IS THE AGENT FOR BUYER. Designated Agent(s) for Buyer, if applicable:
OR
Broker is NOT the Agent for Buyer and Is a/an: ? AGENT FOR SELLER ? SUBAGENT FOR SELLER ? TRANSACTION LICENSEE
BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER (CompanY) R8/MAX Realty Professionals, Inc. PHONE 652-4700
ADDRESS 4775 Linglestown Road, Harrisburg P9 17112 FAX 652-5180
When the same Broker is Agent for Seller and Agent for Buyer, Broker is a Dual Agent. All of Broker's licensees are also Dual Agents UNLESS
there are separate Designated Agents for Buyer and Seller. If the same Licensee is designated for Seller and Buyer, the Licensee is a Dual Agent.
L Chto Y1$reement/ dated -
SELLER(S): Paramount
25
is between
called "Seller," and
BUYER(S):
, called `Buyer."
2. PROPERTY (1-98) Seller hereby agrees to sell and convey to Buyer, who hereby agrees to purchase:
ALL THAT CERTAIN lot or piece of ground with buildings and improvements. thereon erected, if auy, known as:
Lot #5 - 1941 .Monterey Drive.
Hampden Township in the nevi? innmWnt of P i nehttret
County of Cumberland in the Commonwealth of Pennsylvania, Zip Code
Identification (e.g., Tax ID #; Parcel #; Lot, Block; Deed Book, Page, Recording Date)
3. TERMS (1-02)
(A) Purchase Price
One Million One Hundred Thousandaand 001100 Dollars
U.S. Dollars
which will be paid to Seller by Buyer as follows:
L Cash or check at signing this Agreement: $
2. Cash or check within _ days of the execution of this Agreement: $
3. $
4. Cash, cashier's or certified check at time of settlement: $ 950 , 0G0
TOTAL $ 1,1.00,000
(B) Deposits paid on account of purchase price to be held by Broker for Seller, unless otherwise stated here:
(C) Seller's written approval to be on or before: August 1, 2002
(D) Settlement to be on U/-1 ?/J -? C) > , or before if Buyer and Seller agree.
(E) Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated here:
(F) Payment of transfer taxes will be divided equally between Buyer and Seller unless otherwise stated
(G) At time of settlement, the following will be adjusted pro-rata on a daily basis between Buyer and Seller, reimbursing where applicable: taxes
(see Information Regarding Tax Proration); rents; interest on mortgage assumptions; condominium fees and homeowner association fees, if
any; water and/or sewer fees, if any, together with any other lienable municipal service. The charges are to be pro-rated for the period(s)
covered: Seller will pay up to and including the date of settlement; Buyer will pay for all days following settlement, unless otherwise stated
here: (.-;1 _
4. FIXTURES & PERSONAL PROPERTY (1-00)
(A) INCLUDED in this sale and purchase price are all existing itemspermanently installed in the Property, free of liens, including plumbing;
heating; lighting fixtures (including chandeliers and ceiling fans); water treatment systems; pool and spa equipment; garage door openers
and transmitters; television antennas; shrubbery, plantings and unpotted trees; any remaining heating and cooking fuels stored on the
Property at the time of settlement-, wall to wall carpeting; window covering hardware, shades and blinds; built-in air conditioners; built-in
appliances; and the range/oven unless otherwise stated. Also included:
(B) LEASED items (not owned by Seller):
(C) EXCLUDED fixtures and items:
5. DATESnIME IS OF THE ESSENCE (1.02)
(A) The said date for settlement and all other dates and times referred to for the performance of any of the obligations of this Agreement are
agreed to be of the essence of this Agreement and are binding.
(B) For the purposes of this Agreement, number of days will be counted from the date of execution, by excluding the day this Agreement was
executed and including the last day of the time period.
(C) The date of settlement is not extended by any other provision of this Agreement and may only be extended by mutual written agreement of
the parties.
(D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. Any pie-printed time periods are negotiable
and may be changed by striking out the pre-printed text and inserting a different time period acceptable to all parties.
Buyer Initials: A/S•2K Page 1 of 8 Seller Initials: i
® Pennsylvania Association of COPYRIGHT PENNSYLVANIA ASSOCIATION OF REALTORS®2002
REALTORS® 01102
?rwa• m.xx..wa.+rw•w v«,.psw
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6a 6. MORTGAGE CONTINGENCY (1-02) nu
61 ? ' WAIVED. This sale is NOT contingent on mortgage financing. 51
52 ? ELECTED 62
63 (A) This sale is contingent upon Buyer obtaining mortgage financing as follows: 63
64 1. Amount of mortgage loan $ 64
65 2. Minimum Term 'p years 65
66 3. Type of mortgage iv f, t+ L']-fJns, l..
66
67 4. Interest rate %; however, Buyyer agrees to accept the interest rate as may be committed by the mortgage lender, not to 67
68 exceed a maximum interest rate of ` ? ` %. 68
69 5. Discount points, loan origination, loan placement and other fees charged by the lender as a percentage of the mortgage loan (excluding fig
i 0 any mortgage insurance premiums or VA funding fee) not to exceed % (0% if not speed) of the mortgage loan. 70
71 The interest rate and fees provisions required by Buyer are satisfied if a mortgage lender makes available to Buyer the right to guarantee an 71
72 interest rate at or below the Maximum Interest Rate specified herein with the percentage fees at or below the amount specified herein. Buyer 72
73 gives Seller the right, at Seller's sole option and as permitted by the mortgage lender and applicable laws, to contribute financially, without 73
74 promise of reimbursement, to the Buyer and/or the mortgage lender to make the above terms available to Buyer. 74
75 (B) Within _ DAYS (10 days if not specified) of the execution of this Agreement, Buyer will make a completed, written mortgage application 75
76 for the mortgage terms specified above to a responsible mortgage lender. The Broker for Buyer, if any, otherwise the Broker for Seller, is 76
77 authorized to communicate with the mortgage lender for the purposes of assisting in the mortgage loan process. 77
78 (C) 1. Mortgage commitment date Snn t anlhta r In it „If a written commitment is not received by Seller by the above date, Buyer 76
79 and Seller agree to extend the mortgage commitment date until Seller terminates this Agreement in writing by notice to Buyer. 79
so 2. Upon receipt of a mortgage commitment, Buyer will promptly deliver a copy of the commitment to Seller. 80
al 3. Seller has the option to terminate this Agreement in writing, after the mortgage commitment date if the mortgage commitment 61
82 a. Is not valid until the date of settlement, OR 82
83 b. Is conditioned upon the sale and settlement of any other property, OR 83
04 c. Contains any other condition not specified in this Agreement that is not satisfied and/or removed in writing by the mortgage lender 84
85 within 7 DAYS after the mortgage commitment date in paragraph 6 (C) (1). 85
06 4. If this Agreement is terminated as specified in paragraphs 6 (C) (1) or (3), or the mortgage loan is not obtained for settlement, all deposit monies 86
87 paid on account of purchase price will be returned to Buyer. Buyer will be responsible for any premiums for mechanics' lien insurance and/or 87
80 title search, or fee for cancellation of same, if any; AND/OR any premiums for flood insurance, mine subsidence insurance and/or fire inset- 88
as ante with extended coverage, or cancellation fee, if any; AND/OR any appraisal fees and charges paid in advance to the mortgage lender. 89
90 (D) If the mortgage lender requires repairs to the Property, Buyer will, upon receipt, deliver a copy of the mortgage lender's requirements to Seller. 90
91 Seller will, within _5 DAYS of receipt of the mortgage lender's requirements, notify Buyer whether Seller will make the required repairs 91
92 at Seller's expense. 92
93 1. If Seller chooses to make the required repairs, Buyer will accept the Property and agree to the RELEASE set forth in paragraph 25 of this 93
94 Agreement. 94
95 2. If Seller chooses not to make the required repairs, or if Seller fails to respond within the time given, Buyer will, within _ 5 DAYS, 95
96 notify Seller in writing of Buyer's choice to terminate this Agreement OR make the required repairs at Buyer's expense and with Seller's 96
97 permission, which will not be unreasonably withheld. If Seller denies Buyer permission to make the requited repairs, Buyer may, within 97
98 5 DAYS of Seller's denial, terminate this Agreement, in which case all deposit monies paid on account of purchase price will be 98
99 returned promptly to Buyer and this Agreement will be VOID. 99
100 (E) Seller Assist 100
181 EJ NOT APPLICABLE 101
102 ? APPLICABLE. Seller will pay: 702
103 ? $ , maximum, toward Buyer's costs as permitted by the mortgage lender. 103
104 ? 104
105 FHA/VA, IF APPLICABLE
to6 (F) It is expressly agreed that notwithstanding any other provisions of this contract, Buyer will not be obligated to complete the purchase of the
107 Property described herein or to incur any penalty by forfeiture of earnest money deposits or otherwise unless Buyer has been given, in accor-
108 dance with HUD/FHA or VA requirements, a written statement by the Federal Housing Commissioner, Veterans Administration, or a Direct
109 Endorsement Lender setting forth the appraised value of the Property of not less than $ (the dollar amount to be
118 inserted is the sales price as stated in this Agreement). Buyer will have the privilege and option of proceeding with consummation of the con-
111 tract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the
112 Department of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property. Buyer should
113 satisfy himself/herself that the price and condition of the Property are acceptable.
114 Warring: Section 1010 of Tide 18, U.S.C., Department of Housing and Urban Development and Federal Housing Administration
115 Transactions, provides, "Whoever for the purpose of ... influencing in any way the action of such Department, makes, passes, utters or pub-
116 lishes any statement, knowing the same to be false .. , shall be fined under this title or imprisoned not more than two years, or both."
117 (G) U.S. Department of Housing and Urban Development (HUD) NOTICE TO PURCHASERS: Buyer's Acknowledgement
its ? Buyer has received the HUD Notice "For Your Protection: Get a Home Inspection" (see Notices and Information on Property Condition
119 Inspections). Buyer understands the importance of getting an independent home inspection and has thought about this before signing this
129 Agreement.
121 Buyer's Initials Date
122 (H) Certification We the undersigned, Seller(s) and Buyer(s) party to this transaction each certify that the terms of this contract for purchase we
123 We to the best of our knowledge and belief, and that any other agreement entered into by any of these parties in connection with this transac-
124, lion is attached to this Agreement.
125 7. INSPECTIONS (1-02)
126 (A) Seller agrees to permit inspections by authorized appraisers, reputable certifiers, insurer's representatives, surveyors, municipal officials and/or
127 Buyer as may be required by the mortgage lender, if any, or insuring agencies. Seller further agrees to permit any other inspections required by
128 or provided for in the terms of this Agreement. Buyer has the right to attend all inspections.
124 (B) Buyer reserves the right to make a pre-settlement walk-through inspection of the Property. Buyer's right to make this inspection is not waived
130 by any other provision of this Agreement.
131 (C) Seller will have heating and all utilities (including fuel(s)) on for the inspections.
132 (D) All inspectors, including home inspectors, are authorized by Buyer to provide a copy of any reports to Broker for Buyer.
133 8. PROPERTY INSPECTION CONTINGENCY (1-02)
134 Other provisions of this Agreement may provide for inspections and/or certifications that are not waived or altered by Buyer's election here.
135 O WAIVED. Buyer understands that Buyer has the option to request inspections of the Property (see Property Inspection Notices and
135 Environmental Notices). BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
137 ? ELECTED
130 (A) Within DAYS (15 days if not specified) of the execution of this Agreement, Buyer, at Buyer's expense, may choose to have inspec-
139 bons and/or certifications completed by licensed or otherwise qualified professionals (see Property Inspection Notices and Environmental
140 Notices). This contingency does not apply to the following existing conditions and/or items:
141
142 (B) Should Buyer elect to have a home inspection of the Property, as defined in the Pennsylvania Home Inspection Law, (see Information Regarding
143 the Home Inspection Law) such home inspection shall be performed by a full member in good standing of a national home inspection associ-
144 anion, or by a person supervised by a full member of a national home inspection association, in accordance with the ethical standards and code
145 of conduct or,prgctice' of that association.
1 j 'I /'-
146 Buyer Initials: { ! ?J --/ A/S-2K Page. 2 of 8 Seller Initials: < ^ ?
.. (C) If Buyer is not satisfied with the condition of the Property as stated in any written report, Buyer will. 147
ite ? Option 1. Within the time given for completing inspections: 148
'e +s 1. Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 149
1c9 2. Terminate this Agreement in writing by notice to Seller, in which case all deposit monies paid on account of purchase price will be returned 150
ii0 promptly to Buyer and this Agreement will be VOID, OR 151
15<' 3. Enter into a mutually acceptable written agreement with Seller providing for any repairs or improvements to the Property and/or any credit 152
1s to Buyer at settlement, as may be acceptable to the mortgage lender, if any. 163
t c;, Should efforts to reach a mutually acceptable agreement fail, Buyer must choose to accept the Property or terminate this Agreement within t54
._= the time given for completing inspections and according to the provisions in paragraph 8(C) (Option 1) 1 and 2. 155
..s. ? Option 2. Within the time given for completing inspections: 156
1S7 1. Accept the Property with the information stated in the report(s) mid agree to the RELEASE set forth in paragraph 25 of this Agreement, 167
150 UNLESS the total cost to correct the conditions contained in the report(s) is more than $ ;58
1he 2. If the total cost to correct the conditions contained in die report(s) EXCEEDS the amount specified in paragraph 8(C) (Option 2) 1, !59
761; Buyer will deliver the report(s) to Seller within the time given for inspection. 100
a. Seller will, within _ 7 DAYS of receiving the report(s), inform Buyer in writing of Seller's choice to: 151
162 (1) Make repairs before settlement so that the remaining cost to repair conditions contained in the report(s) is less than or equal to lez.
163 the amount specified in paragraph 8 (C) (Option 2) 1. I F3
I_31 (2) Credit Buyer at settlement for die difference between the estimated cost of repairing the conditions contained in rite report(s) 164
10' and the amount specified in paragraph 8 (C) (Option 2) 1. This option must be acceptable to the mortgage lender, if any. 165
166 (3) Not make repairs and not credit Buyer at settlement for any costs to repair conditions contained in the report(s). 156
167 b. If Seller chooses to make repairs or credit Buyer at settlement as specified in paragraph 8 (C) (Option 2) 2, Buyer will accept die 167
168 Property and agree to the RELEASE set forth in paragraph 25 of this Agreement. 1sa
169 c. If Seller chooses not to make repairs and not to credit Buyer at settlement, or if Seller fails to choose any option within the time 169
170 given, Buyer will, within 5 DAYS:
170
171 (1) Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 25 of this 171
172 Agreement, OR 172
173 (2) Terminate this Agreement in writing by notice to Seller, in which case all deposit monies paid on account of purchase price will 173
174 be returned promptly to Buyer and this Agreement will be VOID. 174
175 9 . WOOD INFESTATION INSPECTION CONTINGENCY (1-02) 175
t76 ? WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for wood infestation by a certified Pest Control 176
177 Operator. BUYER WANES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement. 177
178 ? ELECTED
178
179 (A) Within DAYS (15 days if not specified) of the execution of this Agreement, Buyer, at Buyer's expense, will obtain a written "Wood- 179
100 Destroying Insect Infestation Inspection Report' from a certified Pest Control Operator and will deliver it and all supporting documents and 180
181 drawings provided by the Pest Control Operator to Seller. The report is to be made satisfactory to and in compliance with applicable laws, mort- 181
182 gage lenders, and/or Federal Insuring and Guaranteeing Agency requirements, if any. The inspection will include all readily visible and 182
183 accessible areas of all structures on the Property except the following structures, which will not be inspected: 183
164
184
165 (B) If the inspection reveals evidence of active infestation(s), Seller agrees, at Seller's expense and before settlement, to treat for active infesta- 185
186 lion(s), in accordance with applicable laws. 106
187 (C) If the inspection reveals damage from active infestation(s) or previous infestation(s), Buyer, at Buyer's expense, has the option to obtain a writ- 187
188 ten report by a professional contractor, home inspection service, or structural engineer that is limited to structural damage to the Property caused 108
189 by wood-destroying organisms and a proposal to repair the damage. Buyer will deliver the structural damage report and corrective proposal to 109
190 Seller within 7_ DAYS of delivering the original inspection report. 100
191 (D) Within _ 5 DAYS of receiving the structural damage report and corrective proposal, Seller will advise Buyer whether Seller will repair, at 191
192 Seller's expense and before settlement, any structural damage from active or previous infestation(s). 192
193 (E) If Seller chooses to repair structural damage revealed by the report, Buyer agrees to accept the Property as repaired and agrees to the RELEASE 193
194 set forth in paragraph 25 of this Agreement. 194
1% (F) If Seller chooses not to repair structural damage revealed by the report or fails to respond within the time given, Buyer, within 5 DAYS. 195
790 will notify Seller in writing of Buyer's choice to: 196
197 1. Accept the Property with the defects revealed by the inspection, without abatement of price, and agree to the RELEASE set forth in pars- 197
198 graph 25 of this Agreement, OR 198
199 2. Make the repairs before settlement, if required by the mortgage lender, if any, at Buyer's expense and with Seller's permission, which will 199
200 not be unreasonably withheld, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this 200
201 Agreement. If Seller denies Buyer permission to make the repairs, Buyer may, within 5 DAYS of Seller's denial, terminate this 201
202 Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and this 202
203 Agreement will be VOID, OR 203
204 3. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and 204
205 this Agreement will be VOID. 205
206 10. RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT NOTICE REQUIRED FOR PROPERTIES 206
207 BUILT BEFORE 1978 (1-02) 207
208 ? NOT APPLICABLE 200
209 ? APPLICABLE 209
210 (A) Seiler represents that Seiler has no knowledge concerning the presence of lead-based paint and/or lead-based paint hazards in or about the 210
211 Property, unless checked below. 211
212 ? Seller has knowledge of the presence of lead-based paint and/or lead-based paint hazards in or about the Property. (Provide the basis for 212
213 determining that lead-based paint and/or hazards exist, the location(s), the condition of the painted surfaces, and other available informs- 213
?14 don concerning Seller's knowledge of the presence of lead-based paint and/or lead-based paint hazards.) 214
!15 215
116 (B) Records/Reports: Seller has no reports or records pertaining to lead-based paint and/or lead-based paint hazards in or about the Property, 218
'17 unless checked below. 217
111 ? Seller has provided Buyer with all available records and reports pertaining to lead-based paint and/or lead-based paint hazards in or about 218
19 the Property. (List documents) 219
20 220
21 (C) Buyer's Acknowledgement: Buyer has received the pamphlet Protect Your Family from Lead in Your Home and has read the Lead Warning 221
22 Statement contained in this Agreement (see Environmental Notices). Buyer has reviewed Seller's disclosure of known lead-based paint and/or 222
?3 lead-based paint hazards, as identified in paragraph 10(A) and has received the records and reports pertaining to lead-based paint and/or lead- 223
04 based paint hazards identified in paragraph 10(B). 224
15 Buyer's Initials Date 225
'8 (D) RISK ASSESSII'ZENT/INSPECTION: Buyer acknowledges that before Buyer is obligated to buy a residential dwelling built before 1978, Buyer 226
7 has 10 DAYS to conduct a risk assessment or inspection of the Property for the presence of lead-based paint and/or lead-based paint hazards. 221
0 ? WAIVED. Buyer understands that Buyer has the right to conduct a risk assessment or inspection of the Property to determine the presence of 220
9 lead-based Paint and/or lead-based paint hazards. BUYER WAIVES THIS RIGHT and agrees to the RELEASE set forth in paragraph 25 of z29
0 this Agreement. 23U
1 ? ELECTED 231.
- 1. Buyer, at Buyer's expense, chooses to obtain a risk assessment and/or inspection of the Property for lead-based paint andlor lead-based 232
1 paint hazards. The risk assessment and/or inspection will be completed within 10 DAYS of the execution of this Agreement: 233
I Buyer Initials: A1S-2K Page 3 of 8 Seller Initials: - 234
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2. Within the time set forth above for obtaining the risk assessment and/or inspection of the Property for lead-based paint and/or
lead-based paint hazards, Buyer may deliver to Seller a written list of the specific hazardous conditions cited in the report and those
corrections requested by Buyer, along with a copy of the risk assessment and/or inspection report.
3. Seller may, within 7. DAYS of receiving the list and report(s), submit a written corrective proposal to Buyer. The corrective proposal
will include, but not be limited to, the name of the remediation company and a projected completion date for corrective measures. Seller
will provide certification from a risk assessor or inspector that corrective measures have been satisfactorily completed on or before the
projected completion date.
4. Upon receiving the corrective proposal, Buyer, within 5 DAYS, will:
a. Accept the corrective proposal and the Property in writing, and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
5. Should Seller fail to submit a written corrective proposal within the time set forth in paragraph r0(D)3 of this Agreement, Buyer,
within 5 DAYS, will:
a. Accept the Property in writing, and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
6. Buyer's failure to exercise any of Buyer's options within the time limits specified in this paragraph will constitute a WAIVER of
this contingency and Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement
(E) Certification: By signing this Agreement, Buyer and Seller certify the accuracy of their respective statements, to the best of their knowledge.
11. STATUS OF RADON (1-02)
(A) Seller represents that Seller has no knowledge concerning the presence or absence of radon unless checked below.
? 1. Seller has knowledge that the Property was tested on the dates, by the methods (e.g., charcoal canister, alpha track, etc.), and with
the results of all tests indicated below:
DATE TYPE OF TEST RESULTS (picocuries/liter or working levels)
COPIES OF ALL AVAILABLE TEST REPORTS will be delivered to Buyer with this Agreement. SELLER DOES NOT WAR-
RANT EITHER THE METHODS OR RESULTS OF THE TESTS.
? 2. Seller has knowledge that the Property underwent radon reduction measures on the date(s) and by the method(s) indicated below:
DATE RADON REDUCTION METHOD
(B) RADON INSPECTION CONTINGENCY
I•:1 WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for radon by a certified inspector (see Environ-
mental Notices: Radon). BUYER WAIVES TIES OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED. Buyer, at Buyer's expense, has the option to obtain, from a certified inspector, a radon test of the Property, and will deliver a copy
of the test report to Seller within DAYS (15 days if not specified) of the execution of this Agreemem. (See Environmental Notices:
Radon)
L If the test report reveals the presence of radon below 0.02 working levels (4 picocuries/fiter), Buyer accepts the Property and agrees to the
RELEASE set forth in paragraph 25 of this Agreement.
2. If the lest report reveals the presence of radon at or exceeding 0.02 working levels (4 picocurieUliter), Buyer will, within 7 DAYS
of receipt of the test results:
? Option 1
a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be retained promptly to Buyer
and this Agreement will be VOID, OR
C. Submit a written, corrective proposal to Seller. The corrective proposal will include, but not be limited to, the name of the certified miti-
gation company; provisions for payment, including retests; and a projected completion date for corrective measures.
(1) Within 7 DAYS of receiving the corrective proposal, Seller will:
(a) Agree to the terms of the corrective proposal in writing, in which case Buyer accepts the Property and agrees to the
RELEASE set forth in paragraph 25 of this Agreement, OR
(b) Not agree to the terms of the corrective proposal.
(2) Should Seller not agree to the terms of the corrective proposal or if Seller falls to respond within the time given, Buyer will, within
5 DAYS, elect to:
(a) Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
(b) Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID.
? Option 2
a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Submit a written, corrective proposal to Seller. The corrective proposal will include, but not be limited to, the name of the certified miti-
gation company; provisions for payment, including retests; and a projected completion date for corrective measures. Seller will pay a max-
bruin of $ toward the total cost of remediation and retests, which will be completed by settlement.
(1) If the total cost of remediation and retests EXCEEDS the amount specified in paragraph II(B) (Option 2) b, Seller will, within
_5 DAYS of receipt of the cost of remediation, notify Buyer in writing of Seller's choice to:
(a) Pay for the total cost of remediation and retests, in which case Buyer accepts the Property and agrees to the RELEASE set forth
in paragraph 25 of this Agreement, OR
(b) Contribute toward the total cost of remediation and retests only the amount specified in paragraph 11(B) (Option 2) b.
(2) If Seller chooses not to pay for the total cost of remediation and retests, or if Seller falls to choose either option within the time
given, Buyer will, within- 5 DAYS, notify Seller in writing of Buyer's choice to:
(a) Pay the difference between Seller's contribution to remediation and retests and the actual cost thereof, in which case
Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement, OR
(b) Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
12. STATUS OF WATER (1-02)
(A) Seller represents that the Property is served by:
? Public Water
? On-site Water
? Community Water
? None
13 -
(B) WATER SERVICE INSPECTION CONTINGENCY
? WAIVED. Buyer acknowledges that Buyer has the option to request an inspection of the water service for the Property. BUYER WAIVES
THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED
1. Buyer has the option, within DAYS (15 days if not specified) of the execution of this Agreement and at Buyer's expense, to deliver
to Seller a written inspection report by a qualified, professional water testing company of the quality and/or quantity of the water service.
i•
Buyer Initials: A/S-2K Page 4 of 8 Seller Initials:
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2. Seller agrees to locate and provide access to the on-site (or individual) water system, it applrcaote, at Setter s expense, a iequ„cu uy u,c
inspection company. Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3. If the report reveals that the water service does not meet the minimum standards of any applicable governmental authority and/or fails to
satisfy the requirements for quality and/or quantity set by the mortgage lender, if any, then Seller will, within__ 7 DAYS of receipt of
the report, notify Buyer in writing of Seller's choice to:
a. Upgrade the water service to the minimum acceptable levels, before settlement, in which case Buyer accepts the Property and agrees
to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Not upgrade the water service.
4. If Seller chooses not to upgrade the service to minimum acceptable levels, or fails to respond within the time given, Buyer will, within
5 DAYS, either:
a. Accept the Property and the water service and, if required by the mortgage lender, if any, and/or any governmental authority, upgrade
the water service before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at
Buyer's expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in para-
graph 25 of this Agreement. If Seller denies Buyer perrnission to upgrade the water service, Buyer may, within S DAYS of
Seller's denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be
returned promptly to Buyer and this Agreement will be VOID, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
13. STATUS OF SEWER (1-02)
(A) Seller represents that the Property is served by:
Q Public Sewer
? Individual On-lot Sewage Disposal System (See Sewage Notice 1)
? Individual On-lot Sewage Disposal System in Proximity to Well (See Sewage Notice 1; see Sewage Notice 4, if applicable)
? Community Sewage Disposal System
? Ten-acre Permit Exemption (See Sewage Notice 2)
? Holding Tank (See Sewage Notice 3)
? None (See Sewage Notice 1)
? None Available/Permit Limitations in Effect (See Sewage Notice 5)
(B) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY
? WANED. Buyer acknowledges that Buyer has the option to request an individual on-lot sewage disposal inspection of the Property. BUYER
WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED
1. Buyer has the option, within DAYS (15 days if not specified) of the execution of this Agreement and at Buyer's expense, to
deliver to Seller a written inspection report by a qualified, professional inspector of the individual on4ot sewage disposal system.
2. Seller, at Seller's expense, agrees, if and as required by the inspection company, to locate, provide access to and empty the individual on-
lot sewage disposal system. Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3. If the report reveals defects that do not require expansion or replacement of the existing sewage disposal system, Seller will, within
7 DAYS of receipt of the report, notify Buyer in writing of Seller's choice to:
a. Correct the defects before settlement, including retests, at Seller's expense, in which case Buyer accepts the Property and agrees to
the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Not correct the defects.
4. If Seller chooses not to correct the defects, or if Seller fails to respond within the time given, Buyer will, within 5 DAYS, either:
a. Accept the Property and the system and, if required by the mortgage lender, if any, and/or any governmental authority, correct the
defects before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer's
sole expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in para.
graph 25 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within _ 5 DAYS of Seller's
denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID.
5. If the report reveals the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, within =25 DAYS
of receipt of the report, submit a corrective proposal to Buyer. The corrective proposal will include, but not be limited to, the name of the
remediation company; provisions for payment, including retests; and a projected completion date for corrective measures. Within
._5 DAYS of receiving Seller's corrective proposal, or if no corrective proposal is received within the time given, Buyer will:
a. Agree to the terms of the corrective proposal, if any, in writing, in which case Buyer accepts the Property and agrees to the RELEASE
set forth in paragraph 25 of this Agreement, OR
b. Accept the Property and the system and, if required by the mortgage lender, if any, and/or any governmental authority, correct the
defects before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer's
sole expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in para-
graph 25 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within 5 DAYS of Seller's
denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID, OR
C. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
14. NOTICES, ASSESSMENTS & CERTIFICATES OF OCCUPANCY (1-02)
(A) Seller represents, as of Seller's execution of this Agreement, that no public improvement, condominium or homeowner association assessments
have been made against the Property which remain unpaid, and that no notice by any government or public authority has been served upon
Seller or anyone on Seller's behalf, including notices relating to violations of zoning, housing, building, safety or fire ordinances which remain
uncorrected, and that Seller knows of no condition that would constitute violation of any such ordinances which remains uncorrected, unless
otherwise specified here:
(B) Seller knows of no other potential notices (including violations) and assessments except as
(C) In the event any notices (including violations) and assessments are received after execution of this Agreement and before settlement, Seller will
notify Buyer in writing, within 5_ DAYS of receiving the notice or assessment, that Seller will:
1. Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees to the RELEASE set forth
in paragraph 25 of this Agreement, OR
2. Not comply with notices and assessments at Seller's expense.
3. If Seller chooses not to comply with notices and assessments, or fails within the time given to notify Buyer if Seller will comply, Buyer
will notify Seller within 5 DAYS in writing that Buyer will either:
a. Comply with notices and assessments at Buyer's expense and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer
and this Agreement will be VOID
.
If Buyer fails to notify Seller within the time given, Buyer accepts the Property and agrees to the RELEASE set forth in para-
graph 25 of this Agreement.
(D) Buyer is advised that access to a public mad may require issuance of a highway occupancy permit from the Department of Transportation.
Buyer hritials: A/S-2K Page 5 o t 8 Seller Initials: _ ! r
Gil
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(E) If required by law, within 15 _ DAYS of the execution of this Agreement Seller will order for delivery to Buyer, on or before settlement: I I I
I.. A certification from the appropriate municipal department or departments disclosing notice of any uncorrected violations of zoning, hous- 412
ing, building, safety or fire ordinances, AND/OR 473
2. A certificate permitung occupancy of the Property. In the event repairs/improvements are required for the issuance of the certificate, Seller 414
5 DAYS of Seller's receipt of the requirements, notify Buyer of the requirements and whether Seller will make the
will
within 415
,
_
required repairs/improvements at Seller's expense. 416
If Seller chooses to make the required Tpairs/improvements, Buyer agrees to accept the Property as repaired and agrees to the RELEASE set 417
raph 25 of this Agreement If Seller chooses not to make the required repairs/improvements, Buyer will, within 5 DAYS,
forth in para 418
g
notify Seller in writing of Buyer's choice to terminate this Agreement OR make the repairs/improvements at Buyer's expense and with Seller's 419
permission, which will not be unreasonably withheld. If Seller denies Buyer permission to make the required repairs or if Seller fails to respond 42o
within the time given, Buyer may, within _ 5 DAYS, terminate this Agreement in writing, in which case all deposit monies paid on account 421
of purchase price will be returned promptly to Buyer and this Agreement will be VOID. 422
15. TITLE, SURVEYS & COSTS (1-02) 423
(A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing 424
deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances, easements of roads, easements visible upon 425
the ground, easements of record, privileges or rights of public service companies, if any; otherwise the title to the above described real estate 426
will be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. 421
(B) Buyer will pay for the following: (1) Title search, title insurance and/or mechanics lien insurance, or fee for cancellation of same, if any; 428
(2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, or fee for cancellation of same, if any; (3) Appraisal 429
fees and charges paid in advance to mortgage lender, if any; (4) Buyer's customary settlement costs and accruals. 480
(C) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney for the preparation of an adequate 431
legal description of the Property (or the correction thereof) will be secured and paid for by Seller. Any survey or surveys desired by Buyer or 432
required by the mortgage lender will be secured aid paid for by Buyer. 433
(D) In the event Seller is unable to give a good and marketable title and such as will be insured by a reputable Title Company at the regular rates, as 414
Buyer will have the option of., (1) taking such title as Seller can give with no change to the purchase price; or (2) being
specified in paragraph 15(A) 435
,
repaid all monies paid by Buyer to Seller on account of purchase price and being reimbursed by Seiler for any costs incurred by Buyer for any inspec- 456
tions or certifications obtained according to the terms of the Agreement, and for those items specified in paragraph 15(B) items (1), (2), (3) and in 437
paragraph 15(C), in which case there will be no further liability or obligation on either of the parties hereto and this Agreement will become VOID. 438
16. ZONING CLASSIFICATION (1-02) 435
Failure of this Agreement to contain the zoning classification (except in cases where the property (and each parcel thereof, if subdividable) is zoned 440
solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer, and, if voided, any deposits 441
tendered by the Buyer will be returned to the Buyer without any requirement for court action. 442
Zoning Classification: Hs's T(Iari-j"1 443
? ELECTED. Within 15 DAYS of the execution of this Agreement, Buyer will verify that the existing use of the Property as 444
is permitted. In the event the use is not permitted, Buyer will, within the time 445
given for verification, notify Seller in writing that the existing use of the Property is not permitted and this Agreement will be VOID, in which 446
case all deposit monies paid on account of purchase price will be returned promptly to Buyer. Buyer's failure to respond within the time 447
given will constitute a WAIVER of this contingency and all other terms of this Agreement remain in full force and effect. 448
17. COALNOTICE 448
? NOT APPLICABLE On
? APPLICABLE 451
THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHTS OF SUPPORT UNDERNEATH THE SURFACE LAND 452
DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL SUCH COAL AND 453
IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. (Thus 454
notice is set forth in the manner provided in Section I of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges that he may not be obtaining the 455
right of protection against subsidence resulting from coal mining operations, and that the property described herein may be protected from damage 456
due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgement is made for the purpose 457
of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27, 1966." Buyer agrees 458
to sign the deed from Seller which deed will contain the aforesaid provision. 459
18. POSSESSION (1-02) 460
(A) Possession is to be delivered by deed, keys and: 431
1. Physical possession to vacant Property free of debris, with all structures broom-clean, at day and time of settlement, AND/OR 482
2. Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is leased at the 403
execution of this Agreement or unless otherwise specified herein. Buyer will acknowledge existing lease(s) by initialing said lease(s) at 464
time of execution of this Agreement. 465
(B) Seller will not enter into any new ]eases, written extension of existing leases, if any, or additional leases for the Property without the written 466
consent of Buyer. 461
19. RECORDING (3-85) This Agreement will not be recorded in the Office for the Recording of Deeds or in any other office or place of public record 468
and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement. 469
20. ASSIGNMENT (3-85) This Agreement will be binding upon the parties, their respective heirs, personal representatives, guardians Bud successors, 470
and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer will not transfer or assign this 471
Agreement without the written consent of Seller. 472
21. DEPOSIT & RECOVERY FUND (1-02) 473
(A) Deposits paid by Buyer within 30 DAYS of settlement will be by cash, cashier's or certified check. Deposits, regardless of the form of 474
payment and the person designated as payee, will be paid in U.S. Dollars to Broker or party identified in paragraph 3(B), who will retain them 475
in an escrow account until consummation or termination of this Agreement in conformity with all applicable laws and regulations. Any uncashed 476
check tendered as deposit monies may be held pending die acceptance of this offer. 477
(B) Upon termination of this Agreement, the Broker holding the deposit monies will release the deposit monies in accordance with the terms of a 478
fully executed written agreement between Buyer and Seller. - 479
(C) In the event of a dispute over entitlement to deposit monies, a broker holding the deposit monies is required by the Rules and Regulations of 480
the State Real Estate Commission (49 Pa. Code §35.327) to retain the monies in escrow until the dispute is resolved. In the event of litigation 481
for the return of deposit monies, a broker will distribute the monies as directed by a final order of court or the written Agreement of the parties. 482
Buyer and Seller agree that, in the event any broker or affiliated licensee is joined in litigation for the return of deposit monies, the attorneys' 403
fees and costs of the broker(s) and licensee(s) will be paid by the party joining them. 484
(D) A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate 486
licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exhaust- 485
ing all legal and equitable remedies. For complete details about the Fund, call (717) 783-3658, or (800)' 822-2113 (within Pennsylvania) and 437
(717) 783-4854 (outside Pennsylvania). 488
22. CONDOMINIUM/PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) RESALE NOTICE (1-02) 489
? NOTAPPLICABLE 490
? APPLICABLE: CONDOMINIUM. Buyer acknowledges that the Property is a unit of a condominium that is primarily run by a unit owners' 491
association. §3407 of the Uniform Condominium Act of Pennsylvania requires Seller to furnish Buyer with a Certificate of Resale and copies 492
of the condominium declaration (other than plats said plans), the bylaws, and the rules and regulations of the association. 493
p APPLICABLE: PLANNED COMMUNITY (HOMEOWNER ASSOCIATION). Buyer acknowledges that the Property is part Of a planned 494
community as defined by the Uniform Planned Community Act. (See Definition of Planned Community Notice). §5407(a) of the Act requires 495
Seller to furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws, the rules and regulations of the association, and 496
a Certificate gontaining ;the provisions set forth in §5407(1) of the Act. -j 497
_
Buyer Initials; _ AIS-2K Page f of 8 Seller Initials: . 490
49n THE FOLLOWING APPLIES TO PROPERTIES THAT ARE PART OF A CON1JUN11141utvt vn
59(? (A)' Within 1_ DAYS of the execution of this Agreement, Seller will submit a request to the association for a Certificate of Resale and the doc- 566
64111 uments necessary to enable Seller to comply with the Act. The Act provides that the association is required to provide these documents within 591
592 10 days of Seller's request. 562
563 (B) Seller will promptly deliver to Buyer all documents received from the association. Under the Act, Seller is not Liable to Buyer for the failure or 563
504 delay of the association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for any erroneous information provided by 564
565 the association and included in the Certificate. 565
6.6D (C) Buyer may declare this Agreement VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR until 596
5D7 settlement, whichever occurs first. Buyer's notice declaring this Agreement void must be in writing; thereafter all deposit monies will be 507
568 returned to Buyer. 508
569 (D) In the event the association has the right to buy the Property (right of first refusal), and the association exercises that right, Seller will reimburse 599
510 Buyer for all monies paid by Buyer on account of purchase price and for any costs incurred by Buyer for: (1) Title search, title insurance and/or 510
611 mechanics lien insurance, or fee for cancellation of same, if any; (2) Flood insurance and/or fire insurance with extended coverage, mine sub- 511
3'.^ sidence insurance, or fee for cancellation of same, if any; (3) Appraisal fees and charges paid in advance to mortgage lender, if any. 512
5 i3 23. MAINTENANCE & RISK OF LOSS (1-02) 513
514 (A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically scheduled herein in its present condition, normal 514
Gts wear and tear excepted. 515
516 (B) In the event any system or appliance included in the sale of the Property fails and Seller does not repair or replace the item, Seller will promptly 516
517 notify Buyer in writing of Seller's choice to: 517
0 I. Repair or replace the failed system or appliance before settlement or credit Buyer at settlement for the fair market value of the failed sys- 518
518 tern or appliance (this option must be acceptable to the mortgage lender, if any). In each case, Buyer accepts the Property and agrees to 519
126 the RELEASE set forth in paragraph 25 of this Agreement, OR 520
521 2. Not repair or replace the failed system or appliance, and not credit Buyer at settlement for the fair market value of the failed system or 521
-22 appliance. If Seller does not repair, replace or offer a credit for the failed system or appliance, or if Seller fails to notify Buyer of Seller's 522
523 choice, Buyer will notify Seller in writing within _ 5 DAYS or before settlement, whichever is sooner, that Buyer will: 523
524 a. Accept the Property and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 524
525 b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer 525
526 and this Agreement will be VOID., 526
52 i (C) Seller will bear risk of loss from fire or other casualties until time of settlement. In the event of damage by foe or other casualties to any prop- 527
528 erty included in this sale that is not repaired or replaced prior to settlement, Buyer will have the option of rescinding this Agreement and 520
:7tP promptly receiving all monies paid on account of purchase price or of accepting the Property in its then condition together with the proceeds 529
5J0 of any insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyer's equitable interest in this Property as of 530
531 the time of execution of this Agreement. 531
532 24. WAIVER OF CONTINGENCIES (1-02) 532
533 If this Agreement is contingent on Buyer's right to inspect and/or repair the Property, Buyer's failure to exercise any of Buyer's options within 533
534 the time limits set forth in this Agreement will constitute a WAIVER of that contingency and Buyer accepts the Property and agrees to the 534
535 RELEASE set forth in paragraph 25 of this Agreement. 535
538 25. RELEASE (1-02) 536
537 Buyer hereby releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES, and any OFFI- 537
535 CER or PARTNER of any one of than and any other PERSON, FIRM, or CORPORATION who may be liable by or through them, from 538
539 any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of the consequences there- 539
5,16 of, whether now known or not, which may arise from the presence of termites or other wood-boring insects, radon, lead-based paint haz- 540
541 ards, environmental hazards, any defects in the individual on-lot sewage disposal system or deficiencies in the on-site water service system, 541
547. or any defects or conditions on the Property. Should Seller be in default under the terms of this Agreement, this release does not deprive 542
543 Buyer of any right to pursue any remedies that may be available under law or equity. This release will survive settlement. 543
544 26. REPRESENTATIONS (1-02) 547
546 (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers, 545
51110 their licensees, employees, officers, or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. It is me
541 further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other terms, obligations, 547
543 covenants, representations, statements or conditions, oral or otherwise of any kind. whatsoever concerning this sale. Furthermore, this 540
549 Agreement will not be altered, amended, changed, or modified except in writing executed by the parties. 549
550 (B) It is understood that Buyer has inspected the Property before signing this Agreement (including fixtures and any personal property 550
:51 specifically scheduled herein), or has waived the right to do so, and has agreed to purchase the Property in its present condition unless 551
552 otherwise stated in this Agreement. Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made 552
553 an independent examination or determination of the structural soundness of the Property, the age or condition of the components, envi. 553
554 ronmental conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor have they made a 554
5115 mechanical inspection of any of the systems contained therein. 555
555 !C) Any repairs required by this Agreement will be completed in a workmanlike manner. 556
557 (D) Broker(s) may perform services to assist unrepresented parties in complying with the terms of this Agreement. 557
558 (E) The headings, captions, and line numbers in this Agreement :ue meant only to make it easier to find the paragraphs. 556
559 27. DEFAULT (1-02) 559
560 (A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer: 56u
56, 1. Fail to make any additional payments as specified in paragraph 3; OR 561
562 2. Furnish false or incomplete information to Seller, Broker(,,;), or the mortgage lender, if any, concerning Buyers legal or financial status, 562
563 or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a 563
564 mortgage loan commitment; OR 564
565 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement. 565
566 (B) Unless otherwise checked in paragraph 27 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies, in one of the 566
667 following manners: 567
568 1. On account of purchase price; OR 558
569 2. As monies to be applied to Seller's damages; OR 569
570 3. As liquidated damages for such breach. 570
571 (C) ? Seller is limited to retaining surns paid by Buyer, including deposit monies, as liquidated damages. 571
572 (D) If Seller retains all sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 27 (B) or (C), Buyer and Seller 572
57;1 will be released from further liability or obligation and this Agreement will be VOID. 573
574 28. MEDIATION (7-96) 574
575 ? NOTAVAILABLE 575
576 1rJ WAIVED. Buyer and Seller understand that they may rhoose to mediate at a later date, should a dispute arise, but that there will be. no obli- 570
577 gation on the part of any party to do so. 57;
Sts ? ELECTED 578
576 (A) Buyer and Seller will try to resolve any dispute or claim that may arise from this Agreement through unediadon, in accordance with the Rules 570
580 and Procedures of the Home Sellers/Home Buyers Dispute Resolution System, Any agreemem reached through a mediation conference and 5811
581 signed by the parties will be binding. 581
112 (B) Buyer and Seller acknowledge that they have received, read, and understand the Rules and Proced,ima of the Home Sellers/Home Buyers 582
583 Dispute Resolution System (see Mediation Notice). 503
P11 (C) This agreement to mediate disputes arising from this Agreement will survive settlement. 584
565
5D.5
546 Buyer Initials: ' :, / 1. I AIS-2K PRge 7 of 8 Seller dnitials: i f
` 5D9
t
'
587
580
580
590
591
592
593
594
595
596
597
536
599
6U0
601
602
603
604
605
606
607
600
609
610
611
612
613
614
515
616
617
618
619
620
621
622
623
524
625
626
621
628
629
639
631
632
633
634
685
636
637
638
639
640
641
642
=643
644
645
646
647
648
649
650
651
652
653
654
655
555
657
656
659
666
661
652
663
564
665
566
667
656
669
670
'2Y. NPECIAL CLAUNES(1•UZ)
(A) The following are part of this Agreement if checked:
? Sale & Settlement of Other Property
Contingency Addendum (PAR Form SSP)
? Sale & Settlement of Other Property Contingency
with Right to Continue Marketing Addendum
(PAR Form SSP-CM)
(B)
? Settlement of Other Property Contingency Addendum (PAR Form SOP)
? Tenant-Occupied Property Addendum (PAR Form TOP)
?l v ,i.4 Pi17I S lr i', iitiy ?i p.__'; -1'a li
Buyer and Seller acknowledge receiving a copy of this Agreement at the time of signing.
NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return by facsimile transmission (FAX) of this
Agreement, and all addenda, bearing the signatures of all parties, constitutes acceptance of this Agreement. Parties to this transaction are advised
to consult an attorney before signing if they desire legal advice.
? Buyer has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336.
ID Buyer has received a statement of Buyer's estimated closing costs before signing this Agreement.
0 Buyer has read and understands the notices and explanatory information set forth in this Agreement.
? Buyer has received a Seller's Property Disclosure Statement before signing this Agreement, if required by law (see Information Regarding
the Real Estate Seller Disclosure Law).
? Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller is holding deposit money) before signing this
Agreement.
BUYER'S MAILING ADDRESS:
BUYER'S CONTACT NUMBER(S):
WITNESS
DATE
WITNESS
Seller hereby
the above contract this (date)
SELLER'S MAILING ADDRESS:
SELLER'S CONTACT
I
WITNESS
DATE i_ %?.:.....
DATE
DATE
WITNESS
DATE
Broker's/Licensees' Certifications (check all that are applicable):
? Regarding Lead-Based Paint Hazards Disclosure: Required if Property was built before 1978: The undersigned Licensees involved in
this transaction, on behalf of themselves and thew brokers, certify that thew statements are true to the best of their knowledge and belief.
Acknowledgement: The Licensees involved in this transaction have informed Seller of Seller's obligations under The Residential Lead-Based
Paint Hazard Reduction Act, 42 U.S.C. §4852(d), and are aware of their responsibility to ensure compliance.
? Regarding FHA Mortgages: The undersigned Licensees involved in this transaction, on behalf of themselves and their brokers, certify that
the terms of this contract for purchase are true to the best of their knowledge and belief, and that any other agreement entered into by any of
these parties in connection with this transaction is attached to this Agreement.
? Regarding Mediation: The undersigned ? Broker for Seller ? Broker for Buyer agree to submit to mediation in accordance with
paragraph 28 of this Agreement.
BROKER FOR SELLER (Company Name) iy ='`1
ACCEPTED BY DATE
BROKER FOR BUYER (Company Name)
ACCEPTED BY
iSc ? cFa '}P tl' ? J )fl ¢1 i
P
DATE
671 A/S-2K Page 8 of 8
BUYER'S COPY
Y1 Seller has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336.
G) Seller has received a statement of Seller's estimated closing costs before signing this Agreement.
C7 Seller has read and understands the notices and explanatory information set forth in this Agreement.
SELLER'S ESTIMATED CLOSING COSTS
TbA, fmm recommended and approved for, but not resnicted to use by, the members of the Pennsylvania Association of REALTORse fPARI.
PROPERTY
SETTLEME:
1. Broker's Fee
2. Preparation of Deed
3. Transfer Tax
4. Seller's Assist to Buyer
5. Home Warranty
6. Municipal Certification
7. Settlement Fee
8. Notary Fees
9. Survey
10. Tax Certifications
11. Overnight/Express Mail Charges
12. Domestic Lien Search
13. Other
14. Other
Estimated Costs
Adjustments (+/-) (e.g., real estate taxes, refund of
$
SEC
t,-
i
$
TOTAL ESTIMATED COSTS/ADJUSTMENTS $
Purchase Price
Total Costs/Adjustments
Estimated Proceeds
Seller's Estimate of Mortgages, Equity, and Other Loan balances, liens, assessments, etc. $
ESTIMATED NET PROCEEDS TO SELLER $
The estimated proceeds do not take into account any other mortgages, liens, assessments or other obligations which may be
against the Property or the Seller.
The above figures are approximated closing costs and will be adjusted as of date of final settlement, if necessary.
I/We understand and have received a copy of these estimated closing costs before signing the agreement of sale.
SELLER
SELLER
BROKER (Comp.
ACCEPTED BYG
i
DATE-rL7
DATE l
® REALTORS a As"atlon of v COPYRIGHT PENNSYLVANIA ASSOCIATION OF R LTORS® 1996
auuom rmwr„ar ew•M...,,,.d, Y 9/01
uo/11/Luu4 1I:u1 rHA ll, oat DIOU nnm rnua
f ???r? : .
,If
Mr. Kris Tsenoff
PARAMOUNT DEVELOPMENT, INC.
AND
Mr. Lee A. Woodall
RE: LOT 5, 1941 MONTEREY DRIVE, MECHANICSBURG, PA 17055
Mr. Tsenoff and Mr- Woodall:
This is to inform you of the remaining balance of the escrow being held by RE/MAX Realty
Professionals, Inc. for the above mentioned property. A total amount of $111,000.00 has
been withdrawn from the account by Mr. Lee Woodall as per the statement dated September
23, 2003 - October 23, 2003. The remaining balance in the account is $14,872.61.
Both Mr. Tsenoff and Mr. Woodall are aware of the account balance of $14,872.61, and
agree this will be the amount RE/MAX Realty Professionals, Inc. will release at the time
of settlement for the above mentioned property.
Witne US
RF - W Realty Professionals
4775 Linglestown Road
Harrisburg, Pennsylvania 17112
Office: (717) 652.4700
Fax: (717)652-5180
E ,h OMkn Independently Owned and Opnr And
PARAMOUNT DEVELOPMENT, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 05-1109
M & T BANK,
Defendant : CIVIL ACTION
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE. PA 17013
(717) 249-3166
PARAMOUNT DEVELOPMENT, INC.,
Plaintiff
V.
M & T BANK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-1109
CIVIL ACTION
COMPLAINT
AND NOW, comes the Plaintiff, Paramount Development, Inc., by and through its
attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint,
and in support thereof avers the following:
1. Paramount Development, Inc. (hereinafter "Plaintiff") is a Pennsylvania
corporation with offices at 432 Virginia Road, Mechanicsburg, Cumberland
County, Pennsylvania 17055.
2. M & T Bank (hereinafter "Defendant") is a Pennsylvania Corporation with offices
at 1 West High Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. Plaintiff is engaged in the business of constructing custom homes.
4. On or about July 25, 2002, Plaintiff agreed to sell the premises located at 1941
Monterey Drive, Mechanicsburg, Pennsylvania, on which it was constructing a
residence, to Lee A. Woodall (hereinafter "Woodall") for the sum of $1,100,000 in
accordance with the terms of a written agreement of sale (hereinafter
"Agreement"), a true and correct copy of which is attached hereto and
incorporated herein as Exhibit "A."
5. On the above date, Woodall paid to Plaintiff's agent, ReMax Realty
Professionals, Inc. (hereinafter "ReMax"), the sum of $150,000 as a deposit upon
execution of the Agreement.
6. Paragraph 21(a) of the Agreement provided that ReMax would retain the deposit
monies paid by Woodall in an escrow account until consummation or termination
of the Agreement.
7. ReMax deposited the $150,000 deposit into a separate real estate escrow
account at M & T Bank in Carlisle, Pennsylvania.
8. ReMax was the only authorized signatory on the account.
9. On or about September 24, 2002, pursuant to a written release signed by Plaintiff
and Woodall, the sum of $25,000 was withdrawn by ReMax from the escrow
account and paid to Plaintiff to cover certain construction related expenses,
leaving a balance of $125,000.
10. Beginning in September 2003 and continuing through October 2003, Woodall,
without authorization and unbeknownst to Plaintiff and ReMax, withdrew a total of
$111,000 from the escrow account for his personal use.
11. Defendant permitted Woodall to withdraw the funds from the account, despite the
fact that Woodall was not a signatory on the account and despite Defendant's
knowledge that Woodall was not entitled to the funds.
12. As a result, the balance of the escrow account was reduced to $14,872.61.
13. On or about November 18, 2003, Plaintiff and Woodall executed a document
acknowledging that Woodall had withdrawn a total of $111,000 from the escrow
account and authorizing ReMax to release the remaining $14,872. 61 at the time
of settlement. A true and correct copy of the document is attached hereto and
incorporated herein as Exhibit "B."
14. Woodall failed to appear at the time and place fixed for settlement or to pay the
J
balance of the purchase price as required under the Agreement, or to return the
deposit monies that were taken from the escrow account.
15. Pursuant to paragraph 27 of the Agreement, Plaintiff is entitled to all deposit
monies paid by Woodall as liquidated damages for Woodall's material breach of
the Agreement.
16. Plaintiff filed a complaint against Woodall, alleging breach of contract and
conversion, on January 28, 2005.
17. Judgment by default was entered in favor of Plaintiff and against Woodall on May
13, 2005 in the amount of $125,000.
18. Plaintiff has been unable to recover the full deposit paid by Woodall as a result of
Defendant's unauthorized payment to Woodall of $111,000 from the escrow
account.
COUNTI
BREACH OF CONTRACT
19. Plaintiff hereby incorporates Paragraphs 1-18 above as though set forth at
length.
20. Upon information and belief, the real estate escrow account into which ReMax
deposited the deposit monies paid by Woodall was governed by the terms of a
written signature card signed by ReMax and Defendant. Plaintiff is unable to
attach a copy of the signature card to this complaint because the same is in the
possession of Defendant.
21. Pursuant to the terms of the signature card, Defendant was authorized to release
escrowed funds only upon the written authorization of ReMax.
22. The signature card embodied an express contract between ReMax and
Defendant.
23. The deposit of the funds into the escrow account also gave rise to an implied
contract between ReMax and Defendant that Defendant would disburse the
escrowed funds only to ReMax or upon ReMax's order.
24. The escrow account was opened and existed for the benefit of Plaintiff, and
Plaintiff was an intended third-party beneficiary of the contract between ReMax
and Defendant.
25. Defendant's unauthorized payment of escrowed funds from the account to
Woodall was a material breach of the contract.
26.As a direct and proximate result of Defendant's breach, Plaintiff has been injured
in the amount of $111,000.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$111,000, which exceeds the compulsory arbitration limitations, plus costs and
such other relief as the Court deems just and proper.
COUNT II
NEGLIGENCE
27. Plaintiff hereby incorporates herein Paragraphs 1-26 above as though set forth
at length.
28. Defendant owed a duty to Plaintiff to exercise reasonable care in the
disbursement of escrowed funds.
29. Defendant breached its duty by permitting Woodall to withdraw funds from the
escrow account despite the fact that Woodall was not a signatory on the account
and despite Defendant's knowledge that Woodall was not entitled to the funds.
30. Plaintiff has been damaged in the amount of $111,000 as a direct and proximate
result of Defendant's failure to exercise reasonable care and to maintain the
escrowed funds in accordance with reasonable commercial standards.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$111,000, which exceeds the compulsory arbitration limitations, plus costs and
such other relief as the Court deems just and proper.
DATED C b
J
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By: 7' (,
ensterm er
Supreme Court L[# ,29940
Shane F. Crosby
Supreme Court I.D. #92530
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Plaintiff
VERIFICATION
I, Krestu Tsenoff, President of Paramount Development, Inc., have
read the foregoing Complaint and hereby certify that the facts set forth are true and
correct to the best of my knowledge, information and belief. This statement is
made subject to the penalties of 18 Pa. Const. Stat. Ann. §4904 relating to unsworn
falsification to authorities.
DATE
STANDARD AGREEMENT FOR THE SALE OF REAL ESTATE A/5-2x
This form recommended and approved for, but not restricted to use by, the members of the Pennsylvania Association of RFALTORS® (PAR).
SELLER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER (company) REIMAX Realty Professionals, Inc. _ PHONE 652-47QQ
ADDRESS 4775 LinglestownRoad Harrisburg PA 17"'12 FAX 652-51130
BROKER IS THE AGENT FOR SELLER. Designated Agent(s) for Seiler, if applicable:
OR
Broker is NOT the Agent for Seiler and is a/an: ? AGENT FOR BUYER ? TRANSACTION LICENSEE
BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER(Compan) 'RE/MAX Realty Professionals, Inc. - PHONE 652-4700
ADDRESS 4 75 Li.nglestown Road Harrisburg PE 17112 FAX ..652-5160
BROKER IS THE AGENT FOR BUYER. Designated Agent(s) for Buyer, if applicable:
OR
Broker is NOT the Agent for Buyer and is a/an: ? AGENT FOR SELLER ? SUBAGENT FOR SELLER ? TRANSACTION LICENSEE
When the same Broker is Agent for Seller and Agent for Buyer, Broker is a Dual Agent. All of Broker's licensees are also Dual Agents UNLESS
there are separate Designated Agents for Buyer and Seller. If the same Licensee is designated for Seller and Buyer, the Licensee is a Dual Agent.
I. irhis Agreement, dated July 25, 2002 is between
SELLER(S); Paramount Development, Inc.
called "Seiler," and
BUYER(S): Lee A. Woodall
, called "Buyer."
2. PROPERTY (1-98) Seller hereby agrees to. sell. and convey to Buyer, who hereby agrees to purchase:
ALL THAT CERTAIN lot or piece of ground with buildings and improvements: thereon erected, if any, known as: -
Lot #5 - 1941 .Monterey Drive.
Hampden Township inthe Dpyr lri innnt of Pi.nyhi ret '.
County of Cumberland in the Commonwealth of Pennsylvania, Zip Code
Identification (e.g., Tax ID #; Parcel #; Lot, Block; Deed Book, Page, Recording Date)
3. TERMS (1-02)
(A) Purchase Price One Million one Hundred Thousendaend 001100 Dollars
1 Iuu UUU U.S. Dollars
which will be paid to Seiler by Buyer as follows:
1. Cash or check at signing this Agreement: $ _ 150 , 000
2. Cash or check within - days of the execution of this Agreement: $
3. $
4. Cash, cashier's or certified check at time of settlement: $ - 950 , 000
TOTAL $ 1,100,000
(B) Deposits paid on account of purchase price to be held by Broker for Seller, unless otherwise stated here:
(C) Seller's written approval to be on or before: AUgUS't 2. ZUU2
(D) Settlement to be on /r..efrL ?/ O
T-'
(E) Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated here:
(F) Payment of transfer taxes will be divided equally between Buyer and Seller unless otherwise stated
or before if Buyer and Seller agree.
(G) At time of settlement, the following will be adjusted pro-ram on a daily basis between Buyer and Seller, reimbursing where applicable: taxes
(see Information Regarding Tax Proration); rents; interest on mortgage assumptions; condominium fees and homeowner association fees, if
any; water and/or sewer fees, if any, together with any other lienable municipal service. The charges are to be pro-rated for the period(s)
covered: Seller will pay up to and including the date of settlement; Buyer will pay for all days following settlement, unless otherwise stated
here:
4. FIXTURES & PERSONAL PROPERTY (1-00)
(A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property, free of liens, including plumbing;
heating; lighting fixtures (including chandeliers and ceiling fans); water treatment systems; pool and spa equipment; garage door openers
and transmitters; television antennas; shrubbery, plantings and Inputted trees; any remaining heating and cooking fuels stored on the
Property at the time of settlement; wall to wall carpeting; window covering hardware, shades and blinds; built-in air conditioners; built-in
appliances; and the rangeloven unless otherwise stated. Also included:
(B) LEASED items (not owned by Seller):
(C) EXCLUDED fixtures and items:
5. DATES171M IS OF THE ESSENCE (1-02)
(A) The said date for settlement and all other dates and times referred to for the performance of any of the obligations of this Agreement are
agreed to be of the essence of this Agreement and are binding.
(B) For the purposes of this Agreement, number of days will be counted from the date of execution, by excluding the day this Agreement was
executed and including the last day of the time period.
(C) The date of settlement is not extended by any other provision of this Agreement and may only be extended by mutual written agreement of
the parties.
(D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. Any pre-printed time periods are negotiable
and may be changed by striking out the pre-printed text and inserting a different time period acceptable to all parties.
uyer Initials: 4! / ' A/S-2K Page 1 of 8 Seller Intials:
Pennsylvania Association of COPYRIGHT PENNSYLVANIA ASSOCIATION'oF REALTORSO 2002
H REALTORS® 01102
AU?
on 6. MORTGAGE CONTINGENCY (1-02) _
6
et ? WAIVED. This sale is NOT contingent on mortgage financing.
.. 61
52 ? ELECTED 6
63 (A) This sale is contingent upon Buyer obtaining mortgage financing as follows: .
64 1. Amount of mortgage loan $ 6
05 2. Minimum Tenn years 6'
66 3. Type of mortgagee ''r3 fltlgna1 6!
67 4. Interest rate ' ) ' --= To; however,, Butver agrees to accept the interest rate as may be committed by the mortgage lender, not to 6.
60 exceed a maximum interest rate of
69 5. Discount points, loan origination, loan placement and other fees charged by the lender as a percentage of the mortgage loan (excluding 61
70 any mortgage insurance premiums or VA funding fee) not to exceed 1- % (0% if not specified) of the mortgage loan. 71
71 The interest rate and fees provisions required by Buyer are satisfied if a mortgage lender makes available to Buyer the right to guarantee an 7'
72 interest rate at or below the Maximum Interest Rate specified herein with the percentage fees at or below the amount specified herein. Buyer 7;
73' gives Seller the right, at Sellers sole option and as permitted by the mortgage lender and applicable laws, to contribute financially, without 7'
74 promise of reimbursement, to the Buyer and/or the mortgage lender to make the above terms available to Buyer. 7?
75 (B) Within _ DAYS (10 days if not specified) of the execution of this Agreement, Buyer will make a completed, written mortgage application 7t
76 for the mortgage terms specified above to a responsible mortgage lender. The Broker for Buyer, if any, otherwise the Broker for Seller, is 7(
17 authorized to communicate with the mortgage lender for the purposes of assisting in the mortgage loan process. 71
78 (C) 1. Mortgage commitment date Septtppirmp 19 r ^:N'.>If a written commitment is not received by Seller by the above date, Buyer it
79 and Seller agree to extend the mortgage commitment date until Seller terminates this Agreement in writing by notice to Buyer. 7i
80 2. Upon receipt of a mortgage commitment, Buyer will promptly deliver a copy of the commitment to Seller. or
al 3. Seller has the option to terminate this Agreement in writing, after the mortgage commitment date if the mortgage commitment at
B2 a. Is not valid until the date of settlement, OR 82
83 b. Is conditioned upon the sale and settlement of any other propertyy. OR 83
84 c. Contains any other condition not specified in this Agreement that is not satisfied and/or removed in writing by the mortgage lender 84
95 within 7 DAYS after the mortgage commitment date in paragraph 6 (C) (1). 65
86 4. If this Agreement is terminated as specified in paragraphs 6 (C) (1) or (3), or the mortgage loan is not obtained for settlement, all deposit monies 86
87 paid on account of pmchase, price will be returned to Buyer. Buyer will be responsible for any premiums for mechanics' lien insurance and/or 67
08 fide search, or fee for cancellation of same, if any; AND/OR any premiums for flood insurance, mine subsidence insurance and/or fire incur- 88
89 ante with extended coverage, or cancellation fee, if any; AND/OR any appraisal fees and charges paid in advance to the mortgage lender. 89
90 (D) If the mortgage lender requires repairs to the Property, Buyer will, upon receipt, deliver a copy of the mortgage lender's requirements to Seller. 90
91 Seller will, within 5 DAYS of receipt of the mortgage lender's requirements, notify Buyer whether Seller will make the required repairs 91
92 at Seller's expense. 92
93 1. If Seller chooses to make the required repairs, Buyer will accept the Property and agree to the RELEASE set forth in paragraph 25 of this 93
94 Agreement. 94
95 2. If Seller chooses not to make the required repairs, or if Seller fails to respond within the time given, Buyer will, within _ 5 DAYS, 95
96 notify Seller in writing of Buyer's choice to terminate this Agreement OR make the required repairs at Buyer's expense and with Seller's 98
97 permission, which will not be unreasonably withheld. If Seller denies Buyer permission to make the required repairs, Buyer may, within 97
98 _ 5 DAYS of Seller's denial, terminate this Agreement, in which case all deposit monies paid on account of purchase price will be 98
99 returned promptly to Buyer and this Agreement will be VOID. 99
160 (E) Seller Assist 100
101 El NOTAPPLICABLE 701
102 ? APPLICABLE. Seller will pay: 102
103 ? $ , maximum, toward Buyer's costs as permitted by the mortgage lender. 163
704 ? 194
105
108
107
106
109
Ila
111
112
113
114
115
116
117
118
119
120
121
122
123
124,
125
126
127
120
129
139
131
132
133
134
135
136
137
138
139
140
191
142
143
144
145
146
FHA/VA, IF APPLICABLE
(F) It is expressly agreed that notwithstanding any other provisions of this contract, Buyer will not be obligated to complete the purchase of the
Property described herein or to incur any penalty by forfeiture of earnest money deposits or otherwise unless Buyer has been given, in accor-
dance with HUD/FHA or VA requirements, a written statement by the Federal Housing Commissioner, Veterans Administration, or a Direct
Endorsement Lender setting forth the appraised value of the Property of not less than $ (the dollar amount to be
inserted is the sales price as stated in this Agreement). Buyer will have the privilege and option of proceeding with consummation of the con-
tract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the
Department of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property. Buyer should
satisfy himself/herself that the price and condition of the Property are acceptable.
Warning: Section 1010 of Title 18, U.S.C., Department of Housing and Urban Development and Federal Housing Administration
'1}ansactions, provides, "Whoever for the purpose of ... influencing in any way the action of such Department, makes, passes, utters or pub-
lishes any statement, knowing the same to be false ... shall be fined under this title or imprisoned not more than two years, or both."
(G) U.S. Department of Housing and Urban Development (HUD) NOTICE TO PURCHASERS: Buyer's Acknowledgement
? Buyer has received the HUD Notice "For Your Protection: Get a Home Inspection" (see Notices and Information on Property Condition
Inspections). Buyer understands the importance of getting an independent home inspection and has thought about this before signing this
Agreement.
Buyer's Initials Date
(H) Certification We the undersigned, Seller(s) and Buyer(s) party to this transaction each certify that the terms of this contract for purchase are
true to the best of our knowledge and belief, and that any other agreement entered into by any of these parties in connection with this transac-
tion is attached to this Agreement.
7. INSPECTIONS (1-02)
(A) Seller agrees to permit inspections by authorized appraisers, reputable certifiers, insurer's representatives, surveyors, municipal officials and/or
Buyer as may be required by the mortgage lender, if any, or insuring agencies. Seller further agrees to permit any other inspections required by
or provided for in the terms of this Agreement. Buyer has the right to attend all inspections.
(B) Buyer reserves the right to make a pre-settlement walk-through inspection of the Property. Buyer's right to make this inspection is not waived
by any other provision of this Agreement,
(C) Seller will have heating and all utilities (including fuel(s)) on for the inspections.
(D) All inspectors, including home inspectors, are authorized by Buyer. to provide a copy of any reports to Broker for Buyer.
8. PROPERTY INSPECTION CONTINGENCY (1.02)
Other provisions of this Agreement may provide for inspections and/or certifications that are not waived or altered by Buyer's election here.
21 WAIVED. Buyer understands that Buyer has the option to request inspections of the Property (see Property Inspection Notices and
Environmental Notices). BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED
(A) Within DAYS (15 days if not specified) of the execution of this Agreement, Buyer, at Buyer's expense, may choose to have inspec-
tions and/or certifications completed by licensed or otherwise qualified professionals (see Property Inspection Notices and Environmental
Notices). This contingency does not apply to the following existing conditions and/or items:
(B) Should Buyer elect to have a home inspection of the Property, as defined in the Pennsylvania Home Inspection Law, (see Information Regarding
the Home Inspection Law) such home inspection shall be performed by a full member in good standing of a national home inspection associ-
ation, or by a person supervised by a full member of a national home inspection association, in accordance with the ethical standards and code
of conduct or prlactice of that association.
„I 1 :.. i
Buyer Initials: G V J A/S-2K Page 2 of 8 -
Salter Initials:
(C) If Buyer is not satisfied with the condition of the Property as stated in any written report, Buyer will: 'r`
? Option 1. Within the time given for completing inspections: 148
1. Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 149
2. Terminate tltis Agreement in writing by notice to Seller, in which case all deposit monies paid on account of purchase price will be returned 1 i0
promptly to Buyer and this Agreement will be VOID, OR _ 151
3. Enter into a mutually acceptable written agreement with Seller providing for any repairs or improvements to the Property and/or any credit 152
to Buyer at settlement, as may be acceptable to the mortgage lender, if any. 153
Should efforts to reach a mutually acceptable agreement fail, Buyer must choose to accept the Property or terminate this Agreement within 154
the time given for completing inspections and according to the provisions in paragraph 8(C) (Option 1) 1 and 2. 155
? Option 2. Within the time given for completing inspections: 156
1. Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 25 of this Agreement, 157
UNLESS the total cost to correct the conditions contained in the report(s) is more that $ 153
2. If the total cost to correct the conditions contained in the report(s) EXCEEDS the amount specified in paragraph 8(C) (Option 2) 1, 159
Buyer will deliver the report(s) to Seller within the time given for inspection. - 160
a. Seller will, within 7 DAYS of receiving the report(s), inform Buyer in writing of Seller's choice to: 151
(1) Make repairs before settlement so that the remaining cost to repair conditions contained in the report(s) is less than or equal to 162
the amount specified in paragraph 8 (C) (Option 2) 1. 153
(2) Credit Buyer at settlement for the difference between the estimated cost of repairing the conditions contained in the report(s) 164
and the amount specified in paragraph 8 (C) (Option 2) 1. This option must be acceptable to the mortgage lender, if any. 185
(3) Not make repairs and not credit Buyer at settlement for any costs to repair conditions contained in the report(s). 166
b. If Seller chooses to make repairs or credit Buyer at settlement as specified in paragraph 8 (C) (Option 2) 2, Buyer will accept the 187
Property and agree to the RELEASE set forth in paragraph 25 of this Agreement. 158
C. If Seller chooses not to make repairs and not to credit Buyer at settlement, or X Seller fails to choose any option within the time 169
given, Buyer will, within _5 DAYS: 170
(1) Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 25 of this 171
Agreement, OR 172
(2) Terminate this Agreement in writing by notice to Seller, in which case all deposit monies paid on account of purchase price will 173
be returned promptly to Buyer and this Agreement will be VOID. - 174
9. WOOD INFESTATION INSPECTION CONTINGENCY (1-02) 175
? WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for wood infestation by a certified Pest Control 176
Operator. BUYER WANES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement. 177
? ELECTED 176
(A) Within DAYS (15 days if not specified) of the execution of this Agreement, Buyer, at Buyer's expense, will obtain a written "Wood- 179
Destroying Insect Infestation Inspection Report" from a certified Pest Control Operator and will deliver it and all supporting documents and 180
drawings provided by the Pest Control Operator to Seller. The report is to be made satisfactory to and in compliance with applicable laws, mort- 187
gage lenders, and/or Federal Insuring and Guaranteeing Agency requirements, if any. The inspection will include all readily visible and 182
accessible areas of all structures on the Property except the following structures, which will not be inspected: 183
184
(B) If the inspection reveals evidence of active infestation(s), Seller agrees, at Seller's expense and before settlement, to treat for active infesta- 185
tion(s), in accordance with applicable laws. 106
(C) If the inspection reveals damage from active infestation(s) or previous infestation(s), Buyer, at Buyer's expense, has the option to obtain a writ- 107
ten report by a professional contractor, home inspection service, or structural engineer that is Baited to structural damage to the property caused 108
by wood-destroying organisms and a proposal to repair the damage. Buyer will deliver the structural damage report and corrective proposal to 189
Seller within _7 DAYS of delivering the original inspection report. 190
(D) Within 5 DAYS of receiving the structural damage report and corrective proposal, Seller will advise Buyer whether Seller will repair, at 191
Seller's expense and before settlement, any structural damage from active or previous infestation(s). 192
(E) If Seller chooses to repair structural damage revealed by the report, Buyer agrees to accept the Property as repaired and agrees to the RELEASE 193
set forth in paragraph 25 of this Agreement. 194
(F) If Seller chooses not to repair structural damage revealed by the report or fails to respond within the time given, Buyer, within 5 DAYS, 195
will notify Seller in writing of Buyer's choice to: 195
1. Accept the Property with the defects revealed by the inspection, without abatement of price, and agree to the RELEASE set forth in para- 197
graph 25 of this Agreement, OR 186
2. Make the repairs before settlement, if required by the mortgage lender, if any, at Buyer's expense and with Seller's permission, which will 199
not be unreasonably withheld, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this 200
Agreement. If Seller denies Buyer permission to make the repairs, Buyer may, within 5 DAYS of Seller's denial, terminate this 201
Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and this 202
Agreement will be VOID, OR 203
3. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be retained promptly to Buyer and 204
this Agreement will be VOID. 205
l0. RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT NOTICE REQUIRED FOR PROPERTIES 266
BUILT BEFORE 1978 (1-02) 207
El NOT APPLICABLE 208
? APPLICABLE
209
(A) Seller represents that Seller has no knowledge concerning the presence of lead-based paint and/or lead-based paint hazards in or about the 210
Property, unless checked below.
217
? Seller has knowledge of the presence of lead-based paint and/or lead-based paint hazards in or about the Property. (Provide the basis for 212
determining that lead-based paint and/or hazards exist, the location(s), the condition of the painted surfaces, and other available informa- 213
lion concerning Seller's knowledge of the presence of lead-based paint and/or lead-based paint hazards.) 214
215
(B) Records/Reports: Seller has no reports or records pertaining to lead-based paint and/or lead-based paint hazards in or about the Property, 216
unless checked below, 217
? Seller has provided Buyer with all available records and reports pertaining to lead-based paint and/or lead-based paint hazards in or about 2i e
the property. (List documents)
279
220
(C) Buyer's Acknowledgement: Buyer has received the pamphlet Protect Your Family firm Lead in Your Rome and has read the Lead Warning 221
Statement contained in this Agreement (see Environmental Notices). Buyer has reviewed Seller's disclosure of known lead-based paint and/or 222
lead-based paint hazards, as identified in paragraph 10(A) and has received the records and reports pertaining to lead-based paint and/or lead- 223
based paint hazards identified in paragraph 10(B). 224
Buyer's Initials Date 225
(D) RISKASSESSMENTANSPECTION: Buyer acknowledges that before Buyer is obligated to buy a residential dwelling built before 1978, Buyer 226
has .__10 DAYS to conduct a risk assessment or inspection of the Property for the presence of lead-based paint and/or lead-based paint hazards. 227
? WANED. Buyer understands that Buyer has the right to conduct a risk assessment or inspection of the Property to determine the presence of 228
lead-based paint and/or lead-based paint hazards. BUYER WAIVES THIS RIGHT and agrees to the RELEASE set forth in paragraph 25 of 229
this Agreement. 230
? ELECTED 237
1. Buyer, at Buyer's expense, chooses to obtain a risk assessment and/or inspection of the Property for lead-based paint and/or lead-based 232
paint hazards. The risk assessment and/or inspection will be completed within 10 DAYS of the execution of this Agreement, 233
yet Initials:, - A/S-2K Page 3 of 8 Seller Initials: .k 234
2. Within the time set forth above for obtaining the risk assessment and/or inspection of the Property for lead-based paint and/or
lead-based paint hazards, Buyer may deliver to Seller a written list of the specific hazardous conditions cited in the report and those
corrections requested by Buyer, along with a copy of the risk assessment and/or inspection report.
3. Seller may, within 7 DAYS of receiving the list and report(s), submit a written corrective proposal to Buyer. The corrective proposal
will include, but not be limited to, the time of the remediation company and a projected completion date for corrective measures. Seller
will provide certification from a risk assessor or inspector that corrective measures have been satisfactorily completed on or before the
projected completion date.
4. Upon receiving the corrective proposal, Buyer, within _ 5 DAYS, will:
a. Accept the corrective proposal and the Property in writing, and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and Us Agreement will be VOID.
5. Should Seller fail to submit a written corrective proposal within the time set forth in paragraph 10(D)3 of this Agreement, Buyer,
within _ 5 DAYS, will:
a. Accept the Property in writing, and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
6. Buyer's failure to exercise any of Buyer's options within the time limits specked in this paragraph will constitute a WAIVER of
this contingency and Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
(E) Certification: By signing this Agreement Buyer and Seller certify the accuracy of their respective statements, to the best of their knowledge.
11. STATUS OF RADON (1-02)
(A) Seller represents that Seller has no knowledge concerning the presence or absence of radon unless checked below.
? I. Seller has knowledge that the Property was tested on the dates, by the methods (e.g., charcoal canister, alpha track, etc.), and with
the results of all tests indicated below:
DATE TYPE OF TEST RESULTS (picocuries/liter or working levels)
COPIES OF ALL AVAILABLE TEST REPORTS will be delivered to Buyer with this Agreement. SELLER DOES NOT WAR-
RANT EITHER THE METHODS OR RESULTS OF THE TESTS.
? 2. Seller has knowledge that the Property underwent radon reduction measures on the date(s) and by the method(s) indicated below:
DATE RADON REDUCTION METHOD
322
(B) RADON INSPECTION CONTINGENCY
D WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for radon by a certified inspector (see Environ-
mental Notices: Radon). BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED. Buyer, at Buyer's expense, has the option to obtain, from a certified inspector, a radon test of the Property, and will deliver a copy
of the test report to Seller within DAYS (15 days if not specified) of the execution of this Agreement. (See Environmental Notices:
Radon)
1. If the test report reveals the presence of radon below 0.02 working levels (4 picocaries/liter), Buyer accepts the Property and agrees to the
RELEASE set forth in paragraph 25 of this Agreement.
2. If the test report reveals the presence of radon at or exceeding 0.02 working levels (4 picocuries/liter), Buyer will, within 7 DAYS
of receipt of the test results:
? Option 1
a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer
and this Agreement will be VOID, OR
C. Submit a written, corrective proposal to Seller. The corrective proposal will include, but not be limited to, the name of the certified miti-
gation company; provisions for payment, including retests; and a projected completion date for corrective measures.
(1) Within 7 DAYS of receiving the corrective proposal, Seller will:
(a) Agree to the terms of the corrective proposal in writing, in which case Buyer accepts the Property and agrees to the
RELEASE set forth in paragraph 25 of this Agreement, OR
(b) Not agree to the terms of the corrective proposal.
(2) Should Seller not agree to the terms of the corrective proposal or if Seller fails to respond within the time given, Buyer will, within
_ 5 DAYS, elect to:
(a) Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
(b) Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID.
? Option 2
a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Submit a written, corrective proposal to Seller. The corrective proposal will include, but not be limited to, the time of the certified miti-
gation company; provisions for payment, including retests; and a projected completion date for corrective measures. Seller will pay -a max-
imum of $ toward the total cost of remediation and retests, which will be completed by settlement.
(1) If the total cost of remediation and retests EXCEEDS the amount specified in paragraph 1103) (Option 2) b, Seller will, within
7 DAYS of receipt of the cost of remediation, notify Buyer in writing of Seller's choice to:
(a) Pay for the total cost of remediation and retests, in which case Buyer accepts the Property and agrees to the RELEASE set forth
in paragraph 25 of this Agreement, OR
(b) Contribute toward the total cost of remediation and retests only the amount specified in paragraph I I (B) (Option 2) b.
(2) If Seller chooses not to pay for the total cost of remediation and retests, or if Seller fails to choose either option within the time
given, Buyer will, within? DAYS, notify Seller in writing of Buyer's choice to:
(a) Pay the difference between Seller's contribution to remediation and retests and the actual cost thereof, in which case
Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement, OR
(b) Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
12. STATUS OF WATER (1-02)
(A) Seller represents that the Property is served by:
? Public Water -
? On-site Water
? Community Water _
? None
(B) WATER SERVICE INSPECTION CONTINGENCY
? WAIVED. Buyer acknowledges that Buyer has the option to request an inspection of the water service for the Property. BUYER WAIVES
THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED
1. Buyer has the option, within DAYS (15 days if not specified) of the execution of this Agreement and at Buyer's expense, to deliver
to Seller a written inspection report by a qualified, professional water testing company of the quality and/or quantity of the water service.
-7! Ji
Buyer Initials: ::-; A/S-2K Page 4 of 8 Seller Initials: _ ?_
2. Seller agrees to locate and provide access to the on-site (or ntetvrauerl water Syswu1, a npyuuu???, >. . „^r--- -- --,_ -
inspection company. Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3. If the report reveals that the water service does not meet the minimum standards of any applicable governmental authority and/or fails tr
satisfy the requirements for quality, and/or quantity set by the mortgage lender, if any, then Seller will, within 7_ DAYS of receipt o.
the report, notify Buyer in writing of Seller's choice to:
a. Upgrade the water service to the minimum acceptable levels, before settlement, in which case Buyer accepts the Property and agree;
to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Not upgrade the water service.
4. If Seller chooses not to upgrade the service to minimum acceptable levels, or fails to respond within the time given, Buyer will, withit
7_ DAYS, either:
a. Accept the Property and die water service and, if required by the mortgage lender, if any, and/or any governmental authority, upgradt
(fie water service before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, a
Buyer's expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in pars
graph 25 of this Agreement. If Seller denies Buyer permission to upgrade the water service, Buyer may, within DAYS of
Seller's denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will bt
returned promptly to Buyer and this Agreement will be VOID, OR
b. Terminate this Agreement in writing, in which case all deposit mordes paid on account of purchase price will be returned prompd)
to Buyer and this Agreement will be VOID.
13. STATUS OF SEWER (1-02)
(A) Seller represents that the Property is served by:
El Public Sewer
? Individual On-lot Sewage Disposal System (See Sewage Notice 1)
? Individual On-lot Sewage Disposal System in Proximity to Well (See Sewage Notice 2; see Sewage Notice 4, if applicable)
? Community Sewage Disposal System
? Ten-acre Permit Exemption (See Sewage Notice 2)
? Holding Tank (See Sewage Notice 3)
? None (See Sewage Notice 1)
? None Available/Permit Limitations in Effect (See Sewage Notice 5)
(B) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY
? WAIVED. Buyer acknowledges that Buyer has the option to request an individual on-lot sewage disposal inspection of the Property. BUYER
WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED
1. Buyer has the option, within DAYS (15 days if not specified) of the execution of this Agreement and at Buyer's expense, to
deliver to Seller a written inspection report by a qualified, professional inspector of the individual on-lot sewage disposal system.
2. Seller, at Seller's expense, agrees, if and as required by the inspection company, to locate, provide access to and empty the individual on-
lot sewage disposal system. Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3. If the report reveals defects that do not require expansion or replacement of the existing sewage disposal system, Seller will, within
7 DAYS of receipt of the report, notify Buyer in writing of Seller's choice to:
a. Correct the defects before settlement, including retests, at Seller's expense, in which case Buyer accepts the Property and agrees to
the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Not correct the defects.
4. If Seller chooses not to correct the defects, or if Seller fails to respond within the time given, Buyer will, within 5 DAYS, either:
a. Accept the Property and the system and, if required by the mortgage lender, if any, and/or any governmental authority, correct the
defects before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer's
sole expense and with Seder's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in para-
graph 25 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within _ 5 DAYS of Seller's
denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID.
5. If the report reveals the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, within 25 DAYS
of receipt of the report, submit a corrective proposal to Buyer. The corrective proposal will include, but not be limited to, the time of the
remediation company; provisions for payment, including retests; and a projected completion date for corrective measures. Within
_5 DAYS of receiving Seller's corrective proposal, or if no corrective proposal is received within the time given, Buyer will:
a. Agree to the terms of the corrective proposal, if any, in writing, in which case Buyer accepts the Property and agrees to the RELEASE
set forth in paragraph 25 of this Agreement, OR
b. Accept the Property and the system and, if required by the mortgage lender, if any, and/or any governmental authority, correct the
defects before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer's
sole expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in para-
graph 25 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within _ 5 DAYS of Seller's
denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID, OR
c. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
1. NOTICES, ASSESSMENTS & CERTIFICATES OF OCCUPANCY (1-02)
(A) Seller represents, as of Seller's execution of this Agreement, that no public improvement, condominium or homeowner association assessments
have been made against the Property which remain unpaid, and that no notice by any government or public authority has been served upon
Seller or anyone on Seller's behalf, including notices relating to violations of zoning, housing, building, safety or fire ordinances which remain
uncorrected, and that Seller knows of no condition that would constitute violation of any such ordinances which remains uncorrected, unless
otherwise specified here:
(B) Seller knows of no other potential notices (including violations) and assessments except as
419
(C) In the event any notices (including violations) and assessments are received after execution of this Agreement and before settlement, Seller will
notify Buyer in writing, within _5 DAYS of receiving the notice or assessment, that Seller will:
1. Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees to the RELEASE set forth
in paragraph 25 of this Agreement, OR
2. Not comply with notices and assessments at Seller's expense.
3. If Seller chooses not to comply with notices and assessments, or fails within the time given to notify Buyer if Seller will comply, Buyer
will notify Seller within _5 DAYS in writing that Buyer will either:
a. Comply with notices and assessments at Buyer's expense and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be rammed promptly to Buyer
and this Agreement will be VOID.
If Buyer fails to notify Seller within the time given, Buyer accepts the Property and agrees to the RELEASE set forth in para-
graph 25 of this Agreement.
(D) Buyer is advised that acpess to a public road may require issuance of a highway occupancy permit from the Department of Transportation.
;!
Buyer Initials: i ???._) A/S-2K Page 5 of 8 Seller Initials: !5-.-,'7 r
411 (E) If required by law, within 15 DAYS of the execution of this Agreement Seller will order for delivery to buyer, uu ? -....... --
orrected violations of zoning, hous-
A certification from the appropriate municipal department or departments disclosing notice of any unc
1 413
422
413 .
ing, building, safety or fire ordinances, AND/OR
vements are required for the issuance of the certificate, Seller
i
h
414
414 rs
mpro
2. A certificate permitting occupancy of the Property. In the event repa
uirements and whether Seller will make the
e
f the re
if
B
' 5
475 q
uy
r o
y
s receipt of the requirements, not
will, within ?5 DAYS of Seller 91
416 required repairs/improvements at Seller's expense.
rees to accept the Property as repaired and agrees to the RELEASE set
r
B
417
417 uye
ag
If Seller chooses to make the required repairs/improvements,
If Seller chooses not to make the required repairs/improvements, Buyer will, within 5 DAYS,
nt
m
A
f
hi 410
413
19 .
gree
e
s
t
forth in paragraph 25 o
notify Seller in writing of Buyer's choice to terminate this Agreement OR make the repairs/improvements at Buyer's expense and with Seller's 419
q
428 which will not be unreasonably withheld. If Seller denies Buyer permission to make the required repairs or if Seller fails to respond
permission 428
421 ,
within the time given, Buyer may, within 5 DAYS, terminate this Agreement in writing, in which case all deposit monies paid on account 42
1
422 of purchase price will be returned promptly to Buyer and this Agreement will be VOID. /
423
424 15. TITLE, SURVEYS & COSTS (1.02)
(A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing 423
424
425 deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances, easements of roads, easements visible upon an
•126 the ground, easements of record, privileges or rights of public service companies, if any; otherwise the title to the above described real estate 426
427 will be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. 421
428 (B) Buyer will pay for the following: (1) Title search, title insurance and/or mechanics lien insurance, or fee for cancellation of same, if any; 420
429 fire insurance with extended coverage, mine subsidence insurance, or fee for cancellation of same, if any; (3) Appraisal
(2) Flood insurance 429
438 ,
fees and charges paid in advance to mortgage lender, if any; (4) Buyer's customary settlement costs and accruals. 4,30
431 (C) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney for the preparation of an adequate 431
432 legal description of the Property (or the correction thereof) will be secured and paid for by Seller. Any survey or surveys desired by Buyer or 432
433 required by the mortgage lender will be secured and paid for by Buyer, 433
434 (D) In the event Seller is unable to give a good and marketable title aid such as will be insured by a reputable Title Company at the regular rates, as 13,1
435 specified in paragraph 15(A), Buyer will have the option of: (1) taking such title as Seller can give with no change to the purchase price; or (2) being 435
436 repaid all monies paid by Buyer to Seller on account of purchase price and being reimbursed by Seller for any costs incurred by Buyer for any inspm- 435
437 tions or certifications obtained according to the terms of the Agreement, and for those items specified in paragraph 15(B) items (1), (2), (3) and in 437
430 paragraph 15(C), in which case there will be no further liability or obligation on either of the parties hereto and this Agreement will become VOID. 438
439 16. ZONING CLASSIFICATION (1-02) 439
440 Failure of this Agreement to contain the zoning classification (except in cases where the property {and each parcel thereof, if subdividable) is zoned 440
441 solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer, and, if voided, any deposits 441
442 tendered by the Buyer will be returned to the Buyer without any requirement for court action. 442
443 Zoning Classification: Rea dantial _ 443
444 ? ELECTED. Within 15 DAYS of the execution of this Agreement, Buyer will verify that the existing use of the Property as 444
445 is permitted. In the event the use is not permitted, Buyer will, within the time 446
416 given for verification, notify Seller in writing that the existing use of the Property is not permitted and this Agreement will be VOID, in which 446
447 case all deposit monies paid on account of purchase price will be returned promptly to Buyer. Buyer's failure to respond within the time 447
448 given wlII constitute a WAIVER of this contingency and all other terms of this Agreement remain in full force and effect. 44a
449 17. COAL NOTICE 449
450 Q NOT APPLICABLE 450
451 ? APPLICABLE 451
452 THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE TITLE TO THE COALAND RIGHTS OF SUPPORT UNDERNEATH THE SURFACE LAND 452
453 DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL SUCH COAL AND 453
454 IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. (This 454
455 notice is set forth in the manner provided in Section I of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges that he may not be obtaining the 455
456 right of protection against subsidence resulting from coal mining operations, and that the property described herein may be protected from damage 456
457 due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgement is made for the purpose 457
458 of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27,1966." Buyer agrees 450
45n to sign the deed from Seller which deed will contain the aforesaid provision. 459
460 18. POSSESSION (1-02) 440
Obi (A) Possession is to be delivered by deed, keys and: 451
462 1. Physical possession to vacant Property free of debris, with all structures broom-clean, at day and time of settlement, AND/OR 452
463 2. Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is leased at the 463
464 execution of this Agreement or unless otherwise specified herein. Buyer will acknowledge existing lease(s) by initialing said lease(s) at 454
465 time of execution of this Agreement. 465
466 (B) Seller will not enter into any new leases, written extension of existing leases, if any, or additional leases for the Property without the Written 466
457 consent of Buyer. 467
46H 19. RECORDING (3-85) This Agreement will not be recorded in the Office for the Recording of Deeds or in any other office or place of public record 480
469 and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement. 469
470 20. ASSIGNMENT (3.85) This Agreement will be binding upon the parties, their respective heirs, personal representatives, guardians and successors, 470
471 and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer will not transfer or assign this 471
472 Agreement without the written consent of Seller. 472
473 21. DEPOSIT & RECOVERY FUND (1-02) 473
474 (A) Deposits paid by Buyer within 0 DAYS of settlement will be by cash, cashier's or certified check. Deposits, regardless of the form of 474
475 " payment and the person designated as payee, will be paid in U.S. Dollars to Broker or party identified in paragraph 3(B), who will retain them 475
476 in an escrow account until consummation or termination of this Agreement in conformity with all applicable laws and regulations. Any uncashed 476
477 check tendered as deposit monies may be held pending the acceptance of this offer. 417
478 (B) Upon termination of this Agreement, the Broker holding the deposit monies will release the deposit monies in accordance with the terms of a 478
479 fully executed written agreement between Buyer and Seller. 479
439 (C) In the event of a dispute over entitlement to deposit monies, a broker holding the deposit monies is required by the Rules and Regulations of 400
4111 the State Real Estate Commission (49 Pa. Code §35.327) to retain the monies in escrow until the dispute is resolved. In the event of litigation 481
482 for the return of deposit monies, a broker will distribute the monies as directed by a final order of court or the written Agreement of the patties. 402
483 Buyer and Seller agree that, in the event any broker or affiliated licensee is joined in litigation for the remm of deposit monies, the attorneys' 403
404 fees and costs of the broker(s) and licensee(s) will be paid by the party joining them. 404
485 (D) A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate 465
466 licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exhaust- 445
487 ing all legal and equitable remedies. For complete details about the Fund, call (717) 783-3658, or (800) 822-2113 (within Pennsylvania) and 467
400 (717) 783-4854 (outside Pennsylvania). 488
mg 22. CONDOMINIUM/PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) RESALE NOTICE (1-02) 440
480 ? NOT APPLICABLE 493
491 ? APPLICABLE: CONDOMINIUM. Buyer acknowledges that the Property is a unit of a condominium that is primarily run by a unit owners' 491
492 association. §3407 of the Uniform Condominium Act of Pennsylvania requires Seller to furnish Buyer with a Certificate of Resale and copies 492
4it3 of the condominium declaration (other than plats and plans), the bylaws, and the rules and regulations of the association. 433
494 p APPLICABLE: PLANNED COMMUNITY (HOMEOWNER ASSOCIATION). Buyer acknowledges that the Property is part of a planned 494
405 community as defined by the Uniform Planned Community Act. (See Definition of Planed Community Notice). §5407(a) of the Act requires 495
496 Seller to furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws, the rules and regulations of the association, and 496
4W a Certificate gomaining the provisions se[ forth in §5407(a) of the Act.
•?.(- ..
` 497
498 A/8-21( Page fr of 8 Smiler initials:
Buyer Initials:` 498
449 THE FOLLOWING APPLIES TO PROPERTIES THATARE PAR'L Or A w?ruv........-.._ _ _ --
500 (A) Within _ 15 DAYS of the execution of this Agreement, Seller will submit a request to the association for a Certificate of Resale and the moc-
.501 uments necessary to enable Seller to comply with die Act. The Act provides that the association is required to provide these documents within 5
502 10 days of Seller's request
503. (B) Seller will promptly deliver to Buyer all documents received from the association. Under the Act, Seller is not liable to Buyer for the failure or 5(
504 delay of2he association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for any erroneous information provided by 5l
505 the association and included in the Certificate. 5I
505 (C) Buyer may declare this Agreement VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR until 5(
567 settlement, whichever occurs first. Buyer's notice declaring this Agreement void must be in writing; thereafter all deposit monies will be 51
508 returned to Buyer. 5t
509 (D) In the event the association has the right to buy the Property (right of first refusal), and the association exercises that right, Seller will reimburse U
510 Buyer for all monies paid by Buyer on account of purchase price and for any costs inured by Buyer for: (1) Title search, title insurance and/or 51
511 mechanics lien insurance, or fee for cancellation of same, if any; (2) Flood insurance and/or fire insurance with extended coverage, mine sub- 51
512 sidence insurance, or fee for cancellation of same, if any; (3) Appraisal fees and charges paid in advance to mortgage lender, if any. 51
513 23. MAINTENANCE & RISK OF LOSS (1-02) 51
514 (A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically scheduled herein in its present condition, normal 51
515 wear and tear excepted. 51
516 (B) In the event any system or appliance included in the sale of the Property fails and Seller does not repair or replace the item, Seller will promptly 51
517 notify Buyer in writing of Seller's choice to:. 51
513 1. Repair or replace the failed system or appliance before settlement or credit Buyer at settlement for the fair market value of the failed sys- 51
539 tem or appliance (this option must be acceptable to the mortgage lender, if any). In each case, Buyer accepts the Property and agrees to 5t
520 the RELEASE set forth in paragraph 25 of this Agreement, OR 52
521 2. Not repair or replace the failed system or appliance, and not credit Buyer at settlement for the fair market value of the failed system or 52
522 appliance. If Seller does not repair, replace or offer a credit for the failed system or appliance, or if Seller fails to notify Buyer of Seller's 521
523 choice, Buyer will notify Seller in writing within 5 DAYS or before settlement, whichever is sooner, that Buyer will: 52;
524 a. Accept the Property and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 52=
525 b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer ST
526 and this Agreement will be VOID.. V(
527 (C) Seller will bear risk of loss from fire or other casualties until time of settlement. In the event of damage by fire or other casualties to any prop- 52;
520 erty included in this sale that is not repaired or replaced prior to settlement, Buyer will have the option of rescinding this Agreement and 52t
6219 promptly receiving all monies paid on account of purchase price or of accepting the Property in its then condition together with the proceeds 525
530 of airy insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyers equitable interest in this Property as of 53C
631 the time of execution of this Agreement. 531
562 24. WAIVER OF CONTINGENCIES (1.02) 562
533 If this Agreement is contingent on Buyer's right to inspect and/or repair the Property, Buyer's failure to exercise any of Buyer's options within 53a
534 the time Bnnits set forth in this Agreement will constitute a WAIVER of that contingency and Buyer accepts the Property and agrees to the 534
535 RELEASE set forth in paragraph 25 of this Agreement. 535
636 25. RELEASE (1-02) 536
537 Buyer hereby releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES, and any OFFI- 537
530 CER or PARTNER of any one of them and any other PERSON, FIRM, or CORPORATION who may be liable by or through them, from 538
539 any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of the consequences there- 539
5,10 of, whether now known or not, which may arise from the presence of termites or other wood boxing insects, radon, lead-based paint haz- 548
541 ards, environmental hazards, any defects in the individual on-lot sewage disposal system or deficiencies in the on-site water service system, 541
542 or any defects or conditions on the Property. Should Seller be in default under the terms of this Agreement, this release does not deprive 542
543 Buyer of any right to pursue any remedies that may be available under law or equity. This release will survive settlement. 548
544 26. REPRESENTATIONS (1-02) 544
565 (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers, 545
516 their licensees, employees, officers, or partners are not a par of this Agreement unless expressly incorporated or stated in this Agreement. It is 541
947 further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other terms, obligations, 547
543 covenants, representations, statements or conditions, oral or otherwise of any kind. whatsoever concerning this sale. Furthermore, this 546
549 Agreement will not be altered, amended, charrged, or modified except in writing executed by the parties. 549
556 . (B) It is understood that Buyer has inspected the Property before signing this Agreement (including fixtures and any personal property 550
551 specifically scheduled herein), or has waived the right to do so, and has agreed to purchase the Property in its present condition unless 551
55:. otherwise stated in this Agreement. Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made 552
553 an independent examination or determination of the structural soundness of the Property, the age or condition of the components, envi• 553
554 ronmental conditions, the permitted uses, or of conditions existing In the locale where the Property Is situated; nor have they made a 554
555 mechanical inspection of any of the systems contained therein. 555
155 (C) Any repairs required by this Agreement will be completed in a workmanlike manner. 558
657 (D) Broker(s) may perform services to assist unrepresented parties in complying with the terms of this Agreement 557
658 (E) The headings, captions, and line numbers in this Agreement we meant only to make it easier to find the paragraphs. W1
559 27. DEFAULT (1 -02) 551
556 (A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer: W
501 L Fail to make any additional payments as specified in paragraph 3; OR 561
562 2. Furnish false or incomplete information to Seller, Broker(s), or the mortgage lender, if any, concerning Buyer's legal or financial status, 55,
553 or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a 56;
564 mortgage loan commitment OR 50
565 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement 55
566 (B) Unless otherwise checked in paragraph 27 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies, in one of the 56
557 following manners:
568 1. On account of purchase price; OR 55
55
569 2. As monies to be applied to Seller's damages; OR 56
570 3. As liquidated damages for such breach. 57
571 (C) ? Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages. 57
572 (D) If Seller retains all sums paid by Buyer, including deposit mordes, as liquidated damages pursuant to paragraph 27 (B) or (C), Buyer and Seller si
57s will be released from further liability or obligation and this Agreement will be VOID. 61
574 28. MEDIATION (7-96)
575 ? NOTAVAILABLE 5'
576 5
WAIVED. Buyer and Seller understand that they may choose to mediate st a later date, should a dispute arise, but that there will be no obli- 5
577 . gation on the part of any party to do so.
573 ? ELECTED 5
5
5741 (A) Buyer and Seller will ay to resolve any dispute or claim that tney arise from this Agreement thrnulr methadon, in accordance with the Rules S
066 and Procedures of the Home Sellers/Home Buyers Dispute Resolution System. Ally
581 signed by the parties will be binding egret-rnent teacher( tfunuph a mediation conference and 5
.
542 (B) Buver and Seller acknowledge that they have received, read, and understand the Rules and Procednoxa of the home Sellers/Home Buyers 5
53'3 Dispute Resolution System (see Mediation Notice).
V'l (C) This agreement to mediate disputes arising from this Agreement will survive settlement.
505 /t
fi06 Buyer Initials: ''"-T?_?lr1, I A/S-2K °age 7 of 8 Seller didtials: , ?1,- ,
667
566
569
590
521
592
593
594
595
596
597
596
599
son
601
602
603
B04
605
606
Or
608
609
610
611
612
613
614
515
615
617
616
619
620
-621
622.
623
524
625
626
621
626
529
630
631
632
633
6634
685
636
637
638
639
640
641
642
=643
644
645
545
547
648
649
659
651
652
663
654
656
556
657
656
659
660
661
662
663
664
665
666
667
660
669
GO
671
29. SPECIAL CLAUSES (1-02)
(A) The following are part of this Agreement if checked:
? Sale & Settlement of Other Property
Contingency Addendum (PAR Form SSP)
? Sale & Settlement of Other Property Contingency
with Right to Continue Marketing Addendum
(PAR Form SSP-CM)
(B)
? Settlement of Other Property Contingency Addendum (PAR Form SOP)
? Tenant-Occupied Property Addendum (PAR Form TOP)
u
This i,jF-3'JC'1 L`. G:7!'T:.l?n;j G?i11; U(.)C1i"t purdhpr Oceiv n F377 C. ,??7pr?GN U13 i.I '17Y-S 8;}CT
;17 9iiS :`.JT' C')f?'?^la:'U CY, ?-l?1 ?JS 1)DlliP..
Buyer and Seller acknowledge receiving a copy of this Agreement at the time of signing.
NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return by facsimile transmission (FAX) of this
Agreement, and all addenda, bearing the signatures of all parties, constitutes acceptance of this Agreement. Parties to this transaction are advised
to consult an attorney before signing If they desire legal advice.
? Buyer has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336.
ED Buyer has received a statement of Buyer's estimated closing costs before signing this Agreement.
0 Buyer has read and understands the notices and explanatory information set forth in this Agreement.
? Buyer has received a Seller's Property Disclosure Statement before signing this Agreement, if required by law (see Information Regarding
the Real Estate Seller Disclosure Law).
? Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller is holding deposit money) before signing this
Agreement.
BUYER'S MAILING ADDRESS: i
BUYER'S CONTACT NUMBER(S):
WITNESS
SS#
WITNESS
SELLER'S MAILING ADDRESS:
SELLER'S CONTACT
DATE
DATE
Broker'sZicensees' Certifications (check all that are applicable):
? Regarding Lead-Based Paint Hazards Disclosure: Required if Property was built before 1978: The undersigned Licensees involved in
this transaction, on behalf of themselves and their brokers, certify that their statements are true to the best of their knowledge and belief.
Acknowledgement: The Licensees involved in this transaction have informed Seller of Seller's obligations under The Residential Lead-Based
Paint Hazard Reduction Act, 42 U.S.C. §4852(d), and are aware of their responsibility to ensure compliance.
?
Regarding FHA Mortgages: The undersigned Licensees involved in this transaction, on behalf of themselves and their brokers, certify that
the terms of this contract for purchase are true to the best of their knowledge and belief, and that any other agreement entered into by any of
these parties in connection with this transaction is attached to this Agreement.
Regarding Mediation: The undersigned ? Broker for Seller ? Broker for Buyer agree to submit to mediation in accordance with
paragraph 28 of this Agreement.
BROKER FOR SELLER (Company Name) 3? J1..:
ACCEPTED BY DATE
BROKER FOR BUYER (Company Name) kE 71 Ira Yi F1e -1 ; y r3Tt,' - > j; ?l-1 a 1 < P a.r?r? .
ACCEPTED BY DATE
A/S-2I{ Page 8 of 8
BUYER'S COPY
Seller has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336.
E7 Seller has received a statement of Seller's estimated dosing casts before signing this Agreement.
Cl Seller has read and understands the notices and explanatory information set forth in this Agreement.
o V Xl,JL.L' 1C',? LZI I VVIA1 Jt:V L;L V JllV ti UkY,313
T'hi9 fo*m recommended and approved for, ba not restricted to vse by, the members of the Pe ylvaaia Association of RBALTORS® (PAR).
PROPERTY ('y
SETTLEMENT
Charges
1. Broker's Fee i, $
2. Preparation of Deed $
3. Transfer Tax $
^_-
j
4. Seller's Assist to Buyer $ --
-`
5. Home Warranty $ --
6. Municipal Certification $ '-'
7. Settlement Fee $
8. Notary Fees $ J ^
9. Survey $
10. Tax Certifications $
11. Overnight/Express Mail Charges $ - -
12. Domestic Lien Search $ - -- -
13. Other $ ___-
14. Other $
Estimated Costs $ ` f f -
i
Adjustments (+/-) (e.g., real estate taxes, refund of escrow) $
TOTAL ESTIMATED COSTS/ADJUSTMENTS $
Purchase Price $
Total Costs/Adjustments $
Estimated Proceeds $
Seller's Estimate of Mortgages, Equity, and Other Loan balances, liens, assessments, etc. $
SEC
ESTIMATED NET PROCEEDS TO SELLER $ I .3 : 2 .k rS p
The estimated proceeds do not take into account any other mortgages, liens, assessments or other obligations which may be
against the Property or the Seller.
The above figures are approximated closing costs and will be adjusted as of date of final settlement, if necessary.
I/We understand and have received a copy of these estimated closing costs before signing the agreement of sale.
DATE '1
DATE-'
DATE
EXHIBIT
«B"
l
Nuf
Mr. Kris Tsenoff
PARAMOUNT DEVELOPMENT, INC.
AND
Mr. Lee A. Woodall
RE: LOT 5, 1941 MONTEREY DRIVE, MECHANICSBURG, PA 17055
Mr. Tsenoff and Mr. Woodall:
This is to inform you of the remaining balance of the escrow being held by RE/MAX Realty
Professionals, Inc. for the above mentioned property. A total amount of $111,000.00 has
been withdrawn from the accowit by Mr. Lee Woodall as per the statement dated September
23, 2003 - October 23, 2003. The remaining balance in the account is $14,872.61.
Both Mr. Tsenoff and Mr. Woodall are aware of the account balance of $14,872.61, and
agree this will be the amount RE/MAX Realty Professionals, Inc. will release at the time
of settlement for the above mentioned property.
RF11AW Realty Professionals
4775 Linglestown Road
Harrisburg, Pennsylvania 17112
Office: (717) 652.4700
Fax: (717) 652-5180
Each o@ICa IndepontlenGy Q., and Qpa
Witnc s
?..? ???
,,
?
-5
i
_
-?
,
.. i
y
n
;J
STEVENS & LEE
By: Mark D. Bradshaw
Attorney I.D. No. 61975
4750 Lindle Road
P.O. Box 11670
Harrisburg, PA 17108
(717)561-5258
Attorneys for M&T Bank
PARAMOUNT DEVELOPMENT, INC.
Plaintiff,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
M&T BANK,
DOCKET N0.05-1109
Defendant.
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
AND NOW COMES the Defendant, Manufacturers and Traders Trust Company
("M&T Bank") and makes the following Preliminary Objections to Plaintiff's Complaint, stating
in support thereof as follows:
1. LEGAL INSUFFICIENCY/FAILURE TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED
1. Plaintiff's Complaint is divided into two separate counts, neither of which
states a claim upon which relief can be granted.
2. Count I, purportedly sounding in breach of contract, specifically avers that it is
based upon a "contract between ReMax and Defendant."
3. Thus, Plaintiff is not, itself, a party to the contract upon which it purports to
sue.
4. Although the Complaint also alleges that Plaintiff is an "intended third party
beneficiary of the contract between ReMax and Defendant," the same is not the case. To the
SLl 550528v1/000000.00000
contrary, an intended third party beneficiary must be identified and named in a contract or the
circumstances must be so compelling that the Court will overlook the absence of contractual
privity. Plaintiff cannot satisfy this standard here.
5. Count II of Plaintiff's Complaint purports to state a claim for solely economic
losses, in the absence of any allegation of property damage or personal injury. As a result,
Count Il of Plaintiff's Complaint is barred by the "economic loss doctrine."
6. Moreover, any purported claim by Plaintiff, whether sounding in contract,
negligence, or otherwise, was released by the document entered into by Plaintiff and Lee
Woodall on or about November 18, 2003.
7. That document, made Exhibit "B" to Plaintiffs Complaint, reflects that
Plaintiff clearly understood that Woodall had withdrawn $111,000 from the escrow account as of
November 18, 2003.
8. As a result, at least by November 18, 2003, Plaintiff understood that "the
remaining balance in the account is $14,872.61." See Complaint Exhibit "B". Consequently,
Plaintiff knew and understood that any claim for the $111,000 would, of necessity, need to be
asserted against Mr. Woodall, individually, in the event closing did not occur.
9. Moreover, the Complaint makes clear that Plaintiff has, in fact, pursued such
rights and remedies as are available to it as against Mr. Woodall. See Complaint,
paragraphs 15-17.
10. Additionally, by November 18, 2003, Plaintiff certainly knew Woodall was
already in default of his obligation to close by May 31, 2003. See Exhibit "A".
2
SLI 550528v1 /000000.00000
WHEREFORE, Defendant Manufacturers and Traders Trust Company
respectfully requests judgment in its favor and against Plaintiff, together with costs and such
other and further relief as this court deems appropriate.
Respectfully submitted,
Dated: 2005
Mark D. Bradshaw
I.D.#61975
P.O. Box 11670
Harrisburg, PA 17108-1670
(717) 561-5242
Attorneys for Defendants M&T Bank
SLI 550528v 1 /000000.00000
PARAMOUNT DEVELOPMENT, INC
V.
M&T BANK,
Plaintiff,
Defendant.
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO. 05-1109
CERTIFICATE OF SERVICE
I, MARK D. BRADSHAW, ESQUIRE, ESQUIRE, certify that on this date, I
served a certified true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO
PLAINTIFF'S COMPLAINT upon the following counsel of record, by depositing the same in
the United States mail, postage prepaid, addressed as follows:
Date: gv-2.7i0
Shane F. Crosby, Esquire
Fenstermacher and Associates, P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050
2005
0 '12?f
Mark D. Bradshaw
SL1 550528v 1 /000000.00000
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in fill)
PARAMOUNT DEVELOPMENT, INC. (Plaintiff)
vs.
M&TBank
(Defendant)
No. 2005-1109 , Civil Term
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendants Preliminary Objections to Plaintiff's eninpininr
2. Identify counsel who will argue cases:
(a) for plaintiff:
hers Rao.
(Name and Address)
5115 E. Trindle Road, Mechanicsburg, PA 17050
(b) for defendant:
Mark D. Bradshaw, Egg
(Name and Address)
P.O. Box 11670, Harrisburg, PA 17108-1670
3. 1 will notify all parties in writing within two days that this case bas been listed for argument.
4. Argument Court Date:
Date: June 24, 2005 Attarneytur Plaintiff
Shane F. Crosby
Print y ow mrne
CERTIFICATE OF SERVICE
AND NOW, on this day of June, 2005, 1 Shane F. Crosby,
Esquire hereby certify that I have served the foregoing Praecipe to List for
Argument, by mailing a true and correct copy by United States first class mail,
addressed as follows:
Mark D. Bradshaw, Esquire
Stevens & Lee
P.O. Box 11670
Harrisburg, PA 17108-1670
Attorney for Defendant
FENSTERMACHER AND ASSOCIATES, P.C.
By:
Shane F. Cr sby
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PARAMOUNT DEVELOPMENT, INC.,
Plaintiff
V.
M & T BANK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-1109
CIVIL ACTION
PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS
AND NOW comes the Plaintiff, Paramount Development, Inc., by and through its
attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Response
to Defendant's Preliminary Objections to Plaintiff's Complaint as follows:
1. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied.
2. Denied. Plaintiff's complaint is a legal document which speaks for itself and the
averment is therefore denied.
3. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied. Furthermore, Plaintiffs complaint is a legal
document which speaks for itself.
4. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied.
5. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
6. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied.
7. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
8. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
9. Denied. Plaintiff's complaint is a legal document which speaks for itself and the
averment is therefore denied.
10. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
DATED:
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
13y: _r . C_.
John R. Fensterm h r
Supreme Court I. 40
Shane F. Crosby
Supreme Court I. D. #92530
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, on this day of July, 2005, 1, Shane F. Crosby, Esquire, hereby
certify that I have served the foregoing Plaintiffs Response to Defendant's Preliminary
objections, by mailing a true and correct copy by ordinary mail, addressed as follows:
Mark D. Bradshaw, Esquire
Stevens & Lee
P.O. Box 11670
Harrisburg, PA 17108-1670
Attorneys for Defendant
FENSTERMACHER AND ASSOCIATES, P.C.
By:
Shane F. t' osby
PARAMOUNT DEVELOPMENT, INC.
Plaintiff
V.
M & T BANK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-1109
CIVIL ACTION
PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS
AND NOW comes the Plaintiff, Paramount Development, Inc., by and through its
attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Response
to Defendant's Preliminary Objections to Plaintiff's Complaint as follows:
1. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied.
2. Denied. Plaintiff's complaint is a legal document which speaks for itself and the
averment is therefore denied.
3. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied. Furthermore, Plaintiff's complaint is a legal
document which speaks for itself.
4. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied.
5. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
6. Denied. The averment is a conclusion of law to which no response is required
and the same is therefore denied.
7. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
S. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
9. Denied. Plaintiff's complaint is a legal document which speaks for itself and the
averment is therefore denied.
10. Denied. To the extent that the averment constitutes a conclusion of law to which
no response is required the same is therefore denied. Furthermore, Plaintiff's
complaint is a legal document which speaks for itself.
DATED:
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By:_ . C.__
John R. Fensterm r
Supreme Court I. 940
Shane F. Crosby
Supreme Court I.D. ##92530
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, on this day of July, 2005, I, Shane F. Crosby, Esquire, hereby
certify that I have served the foregoing Plaintiffs Response to Defendant's Preliminary
Objections, by mailing a true and correct copy by ordinary mail, addressed as follows:
Mark D. Bradshaw, Esquire
Stevens & Lee
P.O. Box 11670
Harrisburg, PA 17108-1670
Attorneys for Defendant
FENSTERMACHER AND ASSOCIATES, P.C.
By
Shane F. G osby
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PARAMOUNT DEVELOPMENT, INC., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 05-1109
M & T BANK,
Defendant : CIVIL ACTION
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
(717) 249-3166
PARAMOUNT DEVELOPMENT, INC.,
Plaintiff
V.
M & T BANK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-1109
CIVIL ACTION
COMPLAINT
AND NOW, comes the Plaintiff, Paramount Development, Inc., by and through its
attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint,
and in support thereof avers the following:
1. Paramount Development, Inc. (hereinafter "Plaintiff") is a Pennsylvania
corporation with offices at 432 Virginia Road, Mechanicsburg, Cumberland
County, Pennsylvania 17055.
2. M & T Bank (hereinafter "Defendant") is a Pennsylvania Corporation with offices
at 1 West High Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. Plaintiff is engaged in the business of constructing custom homes.
4. On or about July 25, 2002, Plaintiff agreed to sell the premises located at 1941
Monterey Drive, Mechanicsburg, Pennsylvania, on which it was constructing a
residence, to Lee A. Woodall (hereinafter "Woodall") for the sum of $1,100,000 in
accordance with the terms of a written agreement of sale (hereinafter
"Agreement"), a true and correct copy of which is attached hereto and
incorporated herein as Exhibit "A."
5. On the above date, Woodall paid to Plaintiffs agent, ReMax Realty
Professionals, Inc. (hereinafter "ReMax"), the sum of $150,000 as a deposit upon
execution of the Agreement.
6. Paragraph 21(a) of the Agreement provided that ReMax would retain the deposit
monies paid by Woodall in an escrow account until consummation or termination
of the Agreement.
7. ReMax deposited the $150,000 deposit into a separate real estate escrow
account at M & T Bank in Carlisle, Pennsylvania.
8. ReMax was the only authorized signatory on the account.
9. On or about September 24, 2002, pursuant to a written release signed by Plaintiff
and Woodall, the sum of $25,000 was withdrawn by ReMax from the escrow
account and paid to Plaintiff to cover certain construction related expenses,
leaving a balance of $125,000.
10. Beginning in September 2003 and continuing through October 2003, Woodall,
without authorization and unbeknownst to Plaintiff and ReMax, withdrew a total of
$111,000 from the escrow account for his personal use.
11. Defendant permitted Woodall to withdraw the funds from the account, despite the
fact that Woodall was not a signatory on the account and despite Defendant's
knowledge that Woodall was not entitled to the funds.
12. As a result, the balance of the escrow account was reduced to $14,872.61.
13. On or about November 18, 2003, Plaintiff and Woodall executed a document
acknowledging that Woodall had withdrawn a total of $111,000 from the escrow
account and authorizing ReMax to release the remaining $14,872. 61 at the time
of settlement. A true and correct copy of the document is attached hereto and
incorporated herein as Exhibit "B."
14. Woodall failed to appear at the time and place fixed for settlement or to pay the
balance of the purchase price as required under the Agreement, or to return the
deposit monies that were taken from the escrow account.
15. Pursuant to paragraph 27 of the Agreement, Plaintiff is entitled to all deposit
monies paid by Woodall as liquidated damages for Woodall's material breach of
the Agreement.
16. Plaintiff filed a complaint against Woodall, alleging breach of contract and
conversion, on January 28, 2005.
17. Judgment by default was entered in favor of Plaintiff and against Woodall on May
13, 2005 in the amount of $125,000.
18. Plaintiff has been unable to recover the full deposit paid by Woodall as a result of
Defendant's unauthorized payment to Woodall of $111,000 from the escrow
account.
19. By an Assignment of Rights dated September 28, 2005, ReMax irrevocably
granted and assigned any and all rights it may have against Defendant arising'(a"
the unauthorized withdrawal of the deposit monies to Plaintiff. A true and correct
copy is attached hereto and incorporated herein as Exhibit "C."
COUNTI
BREACH OF CONTRACT
20. Plaintiff hereby incorporates Paragraphs 1-19 above as though set forth at
length.
21. Upon information and belief, the real estate escrow account into which ReMax
deposited the deposit monies paid by Woodall was governed by the terms of a
written signature card signed by ReMax and Defendant. Plaintiff is unable to
attach a copy of the signature card to this complaint because the same is in the
possession of Defendant.
22. Pursuant to the terms of the signature card, Defendant was authorized to release
escrowed funds only upon the written authorization of ReMax.
23. The signature card embodied an express contract between ReMax and
Defendant.
24. The deposit of the funds into the escrow account also gave rise to an implied
contract between ReMax and Defendant that Defendant would disburse the
escrowed funds only to ReMax or upon ReMax's order.
25. The escrow account was opened and existed for the benefit of Plaintiff, and
Plaintiff was an intended third-parry beneficiary of the contract between ReMax
and Defendant.
26. Defendant's unauthorized payment of escrowed funds from the account to
Woodall was a material breach of the contract.
27. As a direct and proximate result of Defendant's breach, Plaintiff has been injured
in the amount of $111,000.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$111,000, which exceeds the compulsory arbitration limitations, plus costs and
such other relief as the Court deems just and proper.
COUNT II
NEGLIGENCE
28. Plaintiff hereby incorporates herein Paragraphs 1-27 above as though set forth
at length.
29. Defendant owed a duty to Plaintiff to exercise reasonable care in the
disbursement of escrowed funds.
30. Defendant breached its duty by permitting Woodall to withdraw funds from the
escrow account despite the fact that Woodall was not a signatory on the account
and despite Defendant's knowledge that Woodall was not entitled to the funds.
31. Plaintiff has been damaged in the amount of $111,000 as a direct and proximate
result of Defendant's failure to exercise reasonable care and to maintain the
escrowed funds in accordance with reasonable commercial standards.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$111,000, which exceeds the compulsory arbitration limitations, plus costs and
such other relief as the Court deems just and proper.
COUNT III
CONVERSION
32. Plaintiff hereby incorporates herein Paragraphs 1-31 above as though set forth at
length.
33. Defendant knew Woodall was not an authorized signatory on the escrow
account.
34. Defendant had no right, power or authority to pay the deposit monies to Woodall.
35. Defendant paid the deposit monies to Woodall upon an unauthorized
endorsement.
36. Defendant is liable for conversion under the Uniform Commercial Code.
37. As a direct result of Defendant's conversion, Plaintiff has been damaged in the
amount of $111,000.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of
$111,000, which exceeds the compulsory arbitration limitations, plus costs and such
other relief as the Court deems just and proper.
Respectfully submitted,
Fl I RMMACHER AND ASSOCIATES, P.C.
Bv:
John R. Fenstermacher
Supreme Court I.D. #29940
Matthew Aaron Smith
Supreme Court LD. #94603
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
DATED: October 24, 2005 Attorneys for Plaintiff
EXHIBIT "A"
STANDARD AGREEMENT FOR THE SALE OF REAL ESTATE A/S-2K
This form recommended and approved for, but not restricted to use by, the members of the Pennsylvania Association of REALTORS® (PAR).
SELLER'S BUSINESSRELATIONSHIP WITH PA LICENSED BROKER
BROKER(Company) RE/MAX Realty Professionals, Inc. _ PHONE 652-4700
AnnuFCC 4775 Linglestown Road. Harri.sbur_ PA 17112 FAX 652-5180
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BROKER IS THE AGENT FOR SELLER. Designated Agent(s) for Seller, if applicable: _
OR
Broker is NOT the Agent for Sellerand is a/an: ? AGENT FOR BUYER ? TRANSACTION LICENSEE
BUYER'S BUSINESS RELATIONSHIP WITH PA LICENSED BROKER
BROKER(Company) RE/MAX Realty Professionals, inc. PHONE 652-4700
ADDRESS 4/75 Linglastown Road Harrisburg P? 27112 FAX 652-5180
BROKER IS THE AGENT FOR BUYER. Designated Agent(s) for Buyer, if applicable:
OR
Broker is NOT the Agent for Buyer and is alan: ? AGENT FOR SELLER ? SUBAGENT FOR SELLER ? TRANSACTION LICENSEE
When the same Broker is Agent for Seller and Agent for Buyer, Broker is a Dual Agent. AB of Broker's licensees are also Dual Agents UNLESS
there are separate Designated Agents for Buyer and Seller. If the same Licensee is designated for Seller and Buyer, the Licensee is a Dual Agent.
I. phis ?[4
SELLER(S):
dated
25. 2002
is between
C:,
called "Seller," and
BUYER(S): Lee A. Woodall
called 'Buyer.'
2. PROPERTY (1-98) Seller hereby agrees to.sell . and convey to Buyer, who hereby agrees to purchase:
ALL THAT CERTAIN lot or piece of ground with buildings and improvements: thereon erected, if any, known as: -
Lot #5 - 1941 Monterey Drive.
Hampden Township inthe Oevelnpinfnt of Pi.nPhurgt
County of Cumberland in the Commonwealth of Pennsylvania, Zip Code
Identification (e.g., Tax D) #; Parcel #; Lot, Block; Deed Book, Page, Recording Date)
3. TERMS (1-02)
(A) Purchase Price
One Million One F
U.S. Dollars
which will be paid to Seller by Buyer as follows:
1. Cash or check at signing this Agreement: $ 150 , 000
2. Cash or check within _ days of the execution of this Agreement: $
3 $
4. Cash, cashier's or certified check at time of settlement: $ 950 , 000
TOTAL $ 1,100,000
(B) Deposits paid on account of purchase price to be held by Broker for Seller, unless otherwise stated here:
(C) Seller's written approval to be on or before: August 1, 2002
(D) Settlement to be on AA-1 y/ -?1 , or before if Buyer and Seller agree.
(E) Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated here:
(F) Payment of transfer taxes will be divided equally between Buyer and Seller unless otherwise stated
(G) At time of settlement, the following will be adjusted pro-rata on a daily basis between Buyer and Seller, reimbursing where applicable: taxes
(see Information Regarding Tax Proration); rents; interest on mortgage assumptions; condominium fees and homeowner association fees, if
any; water and/or sewer fees, if any, together with any other henable municipal service. The charges are to be pro-rated for the period(s)
covered: Seller will pay up to and including the date of settlement; Buyer will pay for all days following settlement, unless otherwise stated
here: „ ..?.*) _ r
4. FIXTURES & PERSONAL PROPERTY (1-00) -
(A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property, free of liens, including plumbing;
heating; lighting fixtures (including chandeliers and ceiling fans); water treatment systems; pool and spa equipment; garage door openers
and transmitters; television antennas; shrubbery, plaatings and unpotted trees; any remaining heating and cooking fuels stored on the
Property at the time of settlement; wall to wall carpeting; window covering hardware, shades and blinds; built-in air conditioners; built-in
appliances; and the range/oven unless otherwise stated Also included:
(B) LEASED items (not owned by Seller):
(C) EXCLUDED fixtures and items:
5. DATESlTIIViE IS OF THE ESSENCE (1.02)
(A) The said date for settlement and all other dates and times referred to for the performance of any of the obligations of this Agreement are
agreed to be of the essence of this Agreement and are binding.
(B) For the purposes of this Agreement, number of days will be counted from the date of execution, by excluding the day this Agreement was
executed and including the last day of the time period. .
(C) The date of settlement is not extended by any other provision of this Agreement and may only be extended by mutual written agreement of
the parties.
(D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. Any pre-printed time periods are negotiable
and may be changed by striking out the pre-printed text and inserting a different time period acceptable to all parties.
uyer Initials: - - -- A/S-2K Page 1 of S Seller Initials: -
Pennsylvania Association of COPYRIGHT PENNSYLVANIA ASSOC7Anorrt/u* REAL'rORSO 2002
REALTORS® 01/02
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6. MORTGAGE CONTINGENCY (1-02)
? WAIVED. This sale is NOT contingent on mortgage financing.
ELECTED
(A) This sale is contingent upon Buyer obtaining mortgage financing as follows:
1. Amount of mortgage loan $ 715,000
2. Minimum Term U years
3. Type of mortgage Unrworitlgnal
4. Interest rate 7 %; however-Bu er agrees to accept the interest rate as may be committed by the mortgage lender, not to
exceed a maximum interest rate of / 1/F 35
5. Discount points, loan origination, loan placement and other fees charged by the lender as a percentage of the mortgage loan (excluding
% (09l, if not specified) of the mortgage loan.
any mortgage insurance premiums or VA funding fee) not to exceed 1-
The interest rate and fees provisions required by Buyer are satisfied if a mortgage lender makes available to Buyer the right to guarantee an
interest rate at or below the Maximum Interest Rate specified herein with the percentage fees at or below the amount specified herein. Buyer
gives Seller the right, at Seller's sole option and as permitted by the mortgage lender and applicable laws, to contribute financially, without
promise of reimbursement, to the Buyer and/or the mortgage lender to make the above terms available to Buyer.
(B) Within ` DAYS (10 days if not specified) of the execution of this Agreement, Buyer will make a completed, written mortgage application
for the mortgage terms specified above to a responsible mortgage lender. The Broker for Buyer, if any, otherwise the Broker for Seller, is
authorized to communicate with the mortgage lender for the purposes of assisting in the mortgage loan process.
(C) 1. Mortgage commitment date SP nt Pmhar 1.ri ;?F1! ltdf a written commitment is not received by Seller by the above date, Buyer
and Seller agree to extend the mortgage commitment date until Seller terminates this Agreement in writing by notice to Buyer.
2. Upon receipt of a mortgage commitment, Buyer will promptly deliver a copy of the commitment to Seller.
3. Seller has the option to terminate this Agreement in writing, after the mortgage commitment date if the mortgage commitment:
a. Is not valid until the date of settlement, OR
b. Is conditioned upon the sale and settlement of any other property, OR -
C. Contains any other condition not specified in this Agreement that is not satisfied and/or removed in writing by the mortgage lender
within ? 7 DAYS after the mortgage commitment date in paragraph 6 (C) (1).
4. If this Agreement is terminated as specified in paragraphs 6 (C) (1) or (3), or the mortgage loan is not obtained for settlement, 0 deposit monies
paid on account of purchase price will be returned to Buyer. Buyer will be responsible for any premiums for mechanics' lien insurance and/or
title search, or fee for cancellation of same, if any; AND/OR any premiums for flood insurance, mine subsidence insurance and/or fire insur-
ance with extended coverage, or cancellation fee, if any; AND/OR any appraisal fees and charges paid in advance to the mortgage lender.
(D) If the mortgage lender requires repairs to the Property, Buyer will, upon receipt, deliver a copy of the mortgage lender's requirements to Seller.
Seller will, within _ 5 DAYS of receipt of the mortgage lender's requirements, notify Buyer whether Seller will make the required repairs
at Seller's expense.
1. If Seller chooses to make the required repairs, Buyer will accept the Property and agree to the RELEASE set forth in paragraph 25 of this
Agreement.
2. If Seller chooses not to make the required repairs, or if Seller fails to respond within the time given, Buyer will, within 5 DAYS,
notify Seller in writing of Buyer's choice to laminate this Agreement OR make the required repairs at Buyer's expense and with Seller's
permission, which will not be unreasonably withheld. If Seller denies Buyer permission to make the required repairs, Buyer may, within
_5 DAYS of Seller's denial, terminate this Agreement, in which case all deposit monies paid on account of purchase price will be
returned promptly to Buyer and this Agreement will be VOID.
(E) Seller Assist
M NOTAPPLICABLE
? APPLICABLE. Seller will pay:
? $ , maximum, toward Buyer's costs as permitted by the mortgage lender.
FHA/VA, IF APPLICABLE
(F) It is expressly agreed that notwithstanding any other provisions of this contract, Buyer will not be obligated to complete the purchase of the
Property described herein or to incur any penalty by forfeiture of earnest money deposits or otherwise unless Buyer has been given, in accor-
dance with HUD/FHA or VA requirements, a written statement by the Federal Housing Commissioner, Veterans Administration, or a Direct
Endorsement Lender setting forth the appraised value of the Property of not less than $ (the dollar amount to be
inserted is the sales price as stated in this Agreement). Buyer will have the privilege and option of proceeding with consummation of the con-
tract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the
Department of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property. Buyer should
satisfy himself/herself that the price and condition of the Property are acceptable.
Warning: Section 1010 of Tirade 18, U.S.C., Department of Housing and Urban Development and Federal Housing Administration
Transactions, provides, "Whoever for the purpose of ... influencing in any way the action of such Department, makes, passes, utters or pub-
lishes any statement, knowing the same to be false ... shall be freed under this title or imprisoned not more than two years, or both."
(G) U.S. Department of Housing and Urban Development (HUD) NOTICE TO PURCHASERS: Buyer's Acknowledgement
? Buyer has received the HUD Notice "For Your Protection: Get a Home Inspection" (see Notices and Information on Property Condition 1
Inspections). Buyer understands the importance of getting an independent home inspection and has thought about this before signing this 1
Agreement. 1
Buyer's Initials Date 1
(H) Certification We the undersigned, Seller(s) and Buyer(s) party to this transaction each certify that the terms of this contract for purchase are 1
true to the best of our knowledge and belief, and that any other agreement entered into by say of these parties in connection with this transact- 1
tion is attached to this Agreement 1
INSPECTIONS (1-02) 1
(A) Seller agrees to permit inspections by authorized appraisers, reputable suers, insurer's representatives, surveyors, municipal officials and/or 1:
Buyer as may be required by the mortgage lender, if any, or insuring agencies. Seiler further agrees to permit any other inspections required by is
or provided for in the terms of this Agreement. Buyer has the right to attend all inspections. I;
(B) Buyer reserves the right to make a pre-settlement walls-through inspection of the Property. Buyer's right to make this inspection is not waived it
by any other provision of this Agreement. m,
(C) Seller will have hearing and all utilities (including fuel(s)) on for the inspections. 13
(D) All inspectors, including home inspectors, are authorized by Buyer. to provide a copy of any reports to Broker for Buyer. 13
PROPERTY INSPECTION CONTINGENCY (1-02) 13
Other provisions of this Agreement may provide for inspections and/or certifications that are not waived or altered by Buyer's election here. 13
Q WAIVED. Buyer understands that Buyer has the option to request inspections of the Property (see Property Inspection Notices and 13
Environmental Notices). BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement. 13
? ELECTED
'
(A) Within DAYS (15 days if not specified) of the execution of this Agreement, Buyer, at Buyer's expense, may choose to have i 3
nspec- 13;
tions and/or certifications completed by licensed or otherwise qualified professionals (see Property Inspection Notices and Environmental 13!
Notices). This contingency does not apply to the following existing conditions and/or items: tut
7.
8.
(B) Should Buyer elect to have a home inspection of the Property, as defined in the Pennsylvania Home Inspection Law, (see Information Regarding
the Home Inspection Law) such home inspection shall be performed by a full member in good standing of a national home inspection associ-
ation, or by a person supervised by a full member of a national home inspection association, in accordance with the ethical standards and code
of conduct or pTctice of that association.
Buyer Initials: 'J A/S-2K Page 2 of 8 Seller Initials:
146
(C) If Buyer is not satisfied with the condition of the Property as stated in any written report, Buyer will:
? Option 1. Within the three given for completing inspections: -
1. Accept the Property with the information stated in the report(s) and agree to the EASE set forth in paragraph 25 of this Agreement,
2. Terminate dhis Agreement in writing by notice to Seller, in which case all der monies paid on account of purchase price will be rent
promptly to Buyer and this Agreement will be VOID, OR .,
3. Enter into a mutually acceptable written agreement with Seller providing for any repairs or improvements to the Property and/or any c
to Buyer at settlement, as may be acceptable to the mortgage lender, if any.
Should efforts to reach a mutually acceptable agreement fail, Buyer must choose to accept the Property or terminate this Agreement wi
the time given for completing inspections and according to the provisions in paragraph 8(C) (Option 1) 1 and 2.
? Option 2. Within the time given for completing inspections:
1. Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 25 of this AgrBeme
UNLESS the total cost to correct the conditions contained in the report(s) is more than $
2. If the total cost to correct the conditions contained in the report(s) EXCEEDS the amount specified in paragraph 8(C) (Option 2
Buyer will deliver the report(s) to Seller within the time given for inspection.
a. Seller will, within 7 DAYS of receiving the report(s), inform Buyer in writing of Seller's choice to:
(1) Make repairs before settlement so that the remaining cost to repair conditions contained in the report(s) is less than or equ
the amount specified in peragraph8 (C) (Option 2) 1.
(2) Credit Buyer at settlement for the difference between the estimated cost of repairing the conditions contained in the repo
and the amount specified in paragraph 8 (C) (Option 2) 1.. This option must be acceptable to the mortgage lender, if any.
(3) Not make repairs and not credit Buyer at settlement for any costs to repair conditions contained in the report(s).
b. If Seller chooses to make repairs or credit Buyer at settlement as specified in paragraph 8 (C) (Option 2) 2, Buyer will accept
Property and agree to the RELEASE set forth in paragraph 25 of this Agreement.
C. If Seller chooses not to make repairs and not to credit Buyer at settlement, or if Seller fails to choose any option within the
given, Buyer will, within 5 DAYS:
(1) Accept the Property with the information stated in the report(s) and agree to the RELEASE set forth in paragraph 25 of
Agreement, OR
(2) Terminate Us Agreement in writing by notice to Seller, in which case all deposit monies paid on account of purchase price
be returned promptly to Buyer and this Agreement will be VOID.
9. WOOD INFESTATION INSPECTION CONTINGENCY (1-02)
WAIVED. Buyer understands that Buyer has the option to request that the Property be inspected for wood infestation by a certified Pest Con
Operator. BUYER WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED
(A) Within DAYS (15 days if not specified) of the execution of this Agreement, Buyer, at Buyer's expense, will obtain a written "Woo
Destroying Insect Infestation Inspection Report" from a cued Pest Control Operator and will deliver it and all supporting documents
drawings provided by the Pest Control Operator to Seller. The report is to be made satisfactory to and in compliance with applicable laws, me
gage lenders, and/or Federal Insuring and Guaranteeing Agency requirements, if any. The inspection will include all readily visible
accessible areas of all structures on the Property except the following structures, which will not be inspected:
(B) If the inspection reveals evidence of active infestation(s), Seller agrees, at Seller's expense and before settlement, to treat for active infes
tion(s), in accordance with applicable laws.
(C) If the inspection reveals damage from active infestation(s) or previous infestation(s), Buyer, at Buyer's expense, has the option to obtain a w
ten report by a professional contractor, home inspection service, or structural engineer that is limited to structural damage to the Property cause
by wood-destroying organisms and a proposal to repair the damage. Buyer will deliver the structural damage report and corrective proposal
Seller within 7 DAYS of delivering the original inspection report.
(D) Within _5 DAYS of receiving the structural damage report and corrective proposal, Seller will advise Buyer whether Seller will repair,
Seller's expense and before settlement, any structural damage from active or previous infestation(s).
(E) If Seller chooses to repair structural damage revealed by the report, Buyer agrees to accept the Property as repaired and agrees to the RELEAS
set forth in paragraph 25 of this Agreement.
(F) If Seller chooses not to repair structural damage revealed by the report or fails to respond within the time given, Buyer, within 5 DAYS
will notify Seller in writing of Buyer's choice to:
1. Accept the Property with the defects revealed by the inspection, without abatement of price, and agree to the RELEASE set forth in para-
graph 25 of this Agreement, OR
2. Make the repairs before settlement, if required by the mortgage lender, if any, at Buyer's expense and with Seller's permission, which will
not be unreasonably withheld, in which case Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this
Agreement. If Seller denies Buyer permission to make the repairs, Buyer may, within 5 DAYS of Seller's denial, terminate this
Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and this
Agreement will be VOID, OR
3. Term nate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer and
this Agreement will be VOID.
RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT NOTICE REQUIRED FOR PROPERTIES
BUILT BEFORE 1978 (1-02)
? NOTAPPLICABLE
11 APPLICABLE
(A) Seller represents that Seller has no knowledge concerning the presence of lead-based paint and/or lead-based paint hazards in or about the
Property, unless checked below.
? Seller has knowledge of the presence of lead-based paint and/or lead-based paint hazards in or about the Property. (Provide the basis for
determining that lead-based paint and/or hazards exist, the location(s), the condition of the painted surfaces, and other available informa-
tion concerning Seller's knowledge of the presence-of lead-based paint and/or lead-based paint hazards.)
(B) Records/Reports: Seller has no reports or records pertaining to lead-based paint and/or lead-based paint hazards in or about the Property,
unless checked below.
? Sellerhas provided Buyer with all available records and reports pertaining to lead-based paint and/or lead-based paint hazards in or about
the Property. (List documents)
221 (C) Buyer's Acknowledgement: Buyer has received the pamphlet Protect Your Family front Lead in Your Home and has read the Lead Warning
222 Statement contained in this Agreement (see Environmental Notices). Buyer has reviewed Seller's disclosure of known lead-based paint and/or
223 lead-based paint hazards, as identified in paragraph 10(A) and has received the records and reports pertaining to lead-based paint and/or lead-
224 based paint hazards identified in paragraph 10(13).
225 Buyer's Initials - Date
226 (D) RISKASSESSMENT/INSPECTION: Buyer acknowledges that before Buyeris obligated to buy a residential dwelling built before 1978, Buyer
227 has 10 DAYS to conduct a risk assessment or inspection of the Property for the presence of lead-based paint and/or lead-based paint hazards.
7-28 ? WAIVED. Buyer understands that Buyer has the right to conduct a risk assessment or inspection of the Property to determine the presence of
229 lead-based paint and/or lead-based paint hazards. BUYER WAIVES THIS RIGHT and agrees to the RELEASE set forth in paragraph 25 of
236 this Agreement.
231 13 ELECTED
232 1. Buyer, at Buyer's expense, chooses to obtain a risk assessment and/or inspection of the Property for lead-based paint and/or lead-based
233 paint haza1 s. The risk assessment and/or inspection will be completed within 10 DAYS of the execution of this Agreemeht,.
i
234 Buyer Initials: 4'- A/S-2K Page 3 of 8 Seller Initials: , .--
148
OR 149
med 150
151
redit 152
153
thin 154
1,55
156
nt, 157
159
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100
151
al to 162
163
rt(s) 194
165
166
the 167
168
me 169
170
this 171
172
will 173
174
175
rol 176
177
178
d- 179
and 180
rt- 191
and 182
103
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d 100
to 189
190
at 191
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E 193
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, 195
196
197
196
199
s 200
s 201
s 202.
203
204
205
206
207
208
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211
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222
223
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2.30
231
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233
234
235 2. Within the time set forth above for obtaining the risk assessment and/or inspection of the Property for lead-based paint and/or 235
731s. lead-based paint hazards, Buyer may deliver to Seller a written fist of the specific hazardous conditions cited in the report and those 235
23, corrections requested by Buyer, along with a copy of the risk assessment and/or inspection report- 237
238 3. Seller may, within 7 DAYS of receiving the list and report(s), submit a written corrective proposal to Buyer. The corrective proposal 230
239 will include, but not be limited to, the time of the remediation company and a projected completion date for corrective measures. Seller 239
240 will provide certification from a risk assessor or inspector that corrective measures have been satisfactorily completed on or before the 240
241 projected completion date, 241
242 4. Upon receiving the corrective proposal, Buyer, within 5 DAYS, will: 242
243 a. Accept the corrective proposal and the Property in writing, and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 243
2,14 b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly 244
245 to Buyer and this Agreement will be VOID. - 245
246 5. Should Seller fail to submit a written corrective proposal within the time set forth in paragraph 10(D)3 of this Agreement, Buyer, 246
247 within 5 DAYS, will: 247
248 a. Accept the Property in writing, and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 248
249 b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly 249
250 to Buyer and this Agreement will be VOID. 250
251 6. Buyer's failure to exercise any of Buyer's options within the time limits specified in this paragraph will constitute a WAIVER of 251
252 this contingency and Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement. 252
253 - (E) Certification: By signing this Agreement, Buyer and Seller certify the accuracy of their respective statements, to the best of their knowledge. 253
254 11. STATUS OF RADON (1-02) 254
255 (A) Seller represents that Seller has no knowledge concerning the presence or absence of radon unless checked below. 255
256 ? I. Seller has knowledge that the Property was tested on the dates, by the methods (e.g., charcoal canister, alpha track, etc.), and with 256
257 the results of all tests indicated below: 257
256 DATE TYPE OF TEST RESULTS (picocuries/liter or working levels) 258
259 259
260 260
261 COPIES OF ALL AVAILABLE TEST REPORTS will be delivered to Buyer with this Agreement. SELLER DOES NOT WAR- 261
262 RANI' EITHER THE METHODS OR RESULTS OF THE TESTS. 262
263 ? 2. Seller has knowledge that the Property underwent radon reduction measures on the date(s) and by the method(s) indicated below: 263
264 DATE RADON REDUCTION METHOD 264
265 265
266 266
267 (B) RADON INSPECTION CONTINGENCY 267
268 10 WANED. Buyer understands that Buyer has the option to request that the Property be inspected for radon by a certified inspector (see Environ- 268
269 mental Notices: Radon). BUYER WANES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement. 209
270 ? ELECTED. Buyer, at Buyer's expense, has the option to obtain, from a certified inspector, a radon test of the Property, and will deliver a copy 270
271 of the test report to Seller within DAYS (15 days if not specified) of the execution of this Agreement. (See Environmental Notices: 271
272 Radon) 272
273 1. If the test report reveals the presence of radon below 0.02 working levels (4 picocuries/liter), Buyer accepts the Property and agrees to the ?73
274 RELEASE set forth in paragraph 25 of this Agreement. 274
275 - 2. If the test report reveals the presence of radon at or exceeding 0.02 working levels (4 picocuries/bter), Buyer will, within 7 DAYS 275
276 of receipt of the test results: 276
277 ? Option 1 277
278 a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 278
279 b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer 279
280 and this Agreement will be VOID, OR 280
281 c. Submit a written, corrective proposal to Seller. The corrective proposal will include, but not be limited to, the name of the certified miti- 281
282 gation company; provisions for payment, including retests; and a projected completion date for corrective measures. 282
283 (1) Within 5 DAYS of receiving the corrective proposal, Seller will: 283
284 (a) Agree to the terms of the corrective proposal in writing, in which case Buyer accepts the Property and agrees to the 284
285 RELEASE set forth in paragraph 25 of this Agreement, OR 285
285 (b) Not agree to the terms of the corrective proposal. 286
287 (2) Should Seller not agree to the terms of the corrective proposal or if Seller fails to respond within the time given, Buyer will, within 2a7
200 _5 DAYS, elect to: 288
289 (a) Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 289
290 (b) Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned 290
291 promptly to Buyer and this Agreement will be VOID. 291
292 ? Option 2 292
293 a. Accept the Property in writing and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR 293
294 b. Submit a written, corrective proposal to Seller. The corrective proposal will include, but not be limited to, the name of the certified mitt- . 294
235 gation company; provisions for payment, including retests; and a projected completion date for corrective measures. Seller will pay a max- 295
290 imum of $ toward the total cost of remediation and retests, which will be completed by settlement 295
291 (1) If the total cost of remediation and retests EXCEEDS the amount specified in paragraph 11(B) (Option 2) b, Seller will, within 297
298 5 DAYS of receipt of the cost of remediation, notify Buyer in writing of Seller's choice to: 298
299 (a) Pay for the total cost of remediation and retests, in which case Buyer accepts the Property and agrees to the RELEASE set forth 299
300 in paragraph 25 of this Agreement, OR 380
301 (b) Contribute toward the total cost of remediation and retests only the amount specified in paragraph 11 (B) (Option 2) b. 301
302 (2) If Seller chooses not to pay for the total cost of remediation and retests, or if Seller fails to choose either option within the time 302
303 given, Buyer will, within_? DAYS, notify Seller in writing of Buyer's choice to: 303
304 (a) Pay the difference between Seller's contribution to remediation and retests and the actual cost thereof, in which case 304
305 Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement, OR 305
306 (b) Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly 306
3u7 to Buyer and this Agreement will be VOID. 307
380 12. STATUS OF WATER (1-02) 308
309 (A) Seller represents that the Property is served by: 309
310 P Public Water 310
311 El On-site Water
312 ? Community Water 311
313 El None 312
-
313
314 ? 314
115 (B) WATER SERVICE INSPECTION CONTINGENCY 315
t10 ? WAIVED. Buyer acknowledges that Buyer has the option to request an inspection of the water service for the Property. BUYER WANES 316
n T THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement. 317
Ila ? ELECTED
318
19 I. Buyer has the option, within DAYS (15 days if not specified) of the execution of this Agreement and at Buyer's expense, to deliver 319
20 to Seller a written inspection report by a qualified, professional water testing company of the quality and/or quantity of the water service. 320
21 % - ..'-m 321
22 Buyer Initials: ; -:^-! `? - A/S-2K Page 4 of 9
Seller Initials: 322
32h
3zs
327
338
329
330
331
332
333
334
335
336
337
3:18
389
3.10
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
356
359
369
361
362
363
364
365
366
367
358
360
378
371
372
:f73
374
375
376
377
378
379
380
381
302
783
304
305
386
387
360 14
389
3sn
391
392
393
394
395
396
397
378
349
400
401
402
403
1104
485
406
417
498
409
410
inspection company. Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3. If the report reveals that the water service does not meet the minimum standards of any applicable governmental authority and/or fai
satisfy the requirements for quality and/or quantity set by the mortgage lender, if any, then Seller will, within 7 DAYS of receil
the report, notify Buyer in writing of Seller's choice to:
a. Upgrade the water service to the minimum acceptable levels, before settlement, in which case Buyer accepts the Property and ag
to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Not upgrade the water service.
4. If Seller chooses not to upgrade the service to minimum acceptable levels, or fails to respond within the time given, Buyer will, wi
_5 DAYS, either:
a. Accept the Property and the water service and, if required by the mortgage lender, if any, and/or any governmental authority, upgi
the water service before settlement or within the time required by the mortgage lender, if any, and/or any governmental amhorir
Buyer's expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in p
graph 25 of this Agreement. If Seller denies Buyer permission to upgrade the water service, Buyer may, within DAY,'
Seller's denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will
returned promptly.to Buyer and this Agreement will be VOID, OR -
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promj
to Buyer and this Agreement will be VOID.
13. STATUS OF SEWER (1 -02)
(A) Seller represents that the Property is served by:
(Q Public Sewer
? Individual On-lot Sewage Disposal System (See Sewage Notice 1) _
? Individual On-lot Sewage Disposal System in Proximity to Well (See Sewage Notice 1; see Sewage Notice 4, if applicable)
? Community Sewage Disposal System
? Ten-acre Permit Exemption (See Sewage Notice 2)
? Holding Tank (See Sewage Notice 3)
? None (See Sewage Notice 1)
? None Available/Permit Limitations in Effect (See Sewage Notice 5)
(B) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY
? WANED. Buyer acknowledges that Buyer has the option to request an individual on-lot sewage disposal inspection of the Property. BUY]
WANES THIS OPTION and agrees to the RELEASE set forth in paragraph 25 of this Agreement.
? ELECTED -
1. Buyer has the option, within DAYS (15 days if not specified) of the execution of this Agreement and at Buyer's expense,
deliver to Seller a written inspection report by a qualified, professional inspector of the individual on-lot sewage disposal system.
2. Seller, at Seller's expense, agrees, if and as required by the inspection company, to locate, provide access to and empty the individual o
lot sewage disposal system. Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3. If the report reveals defects that do not require expansion or replacement of the existing sewage disposal system, Seller will, with
_Z DAYS of receipt of the report, notify Buyer in writing of Seller's choice to:
a. Correct the defects before settlement, including retests, at Seller's expense, in which case Buyer accepts the Property and agrees 1
the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Not correct the defects.
4. If Seller chooses not to correct the defects, or if Seller fails to respond within the time given, Buyer will, within 5 DAYS, either.
a. Accept the Property and the system and, If required by the mortgage lender, if any, and/or any governmental authority, correct th
defects before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer
sole expense and with Seller's permission, which will not be unreasonably withheld, and agree to the RELEASE set forth in pars
graph 25 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within 5 DAYS of Seller'
denial, terminate this Agreement in writing, in which case al] deposit monies paid on account of purchase price will be remme
promptly to Buyer and this Agreement will be VOID, OR
b. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be remmei
promptly to Buyer and this Agreement will be VOID.
5. If the report reveals the need to expand or replace the existing individual on-lot sewage disposal system, Seller may, within 25 DAY,'
of receipt of the report, submit a corrective proposal to Buyer. The corrective proposal will include, but not be limited to, the name of thr
remediation company; provisions for payment, including retests; and a projected completion date for corrective measures. Withir
5 DAYS of receiving Seller's corrective proposal, or if no corrective proposal is received within the time given, Buyer will:
a. Agree to the terns of the corrective proposal, if any, in writing, in which case Buyer accepts the Property and agrees to the RELEASE
set forth in paragraph 25 of this Agreement, OR
b. Accept the Property and the system and, if required by the mortgage lender, if any, and/or any governmental authority, correct the
defects before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer's
sole expense and with Seller's percussion, which will not be unreasonably withheld, and agree to the RELEASE set forth in para-
graph 25 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within _5 DAYS of Seller's
denial, terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned
promptly to Buyer and this Agreement will be VOID, OR
C. Terminate this Agreement in writing, in which case all deposit monies paid on account of purchase price will be returned promptly
to Buyer and this Agreement will be VOID.
NOTICES, ASSESSMENTS & CERTIFICATES OF OCCUPANCY (1-02)
(A) Seller represents, as of Seller's execution of this Agreement, that no public improvement, condominium or homeowner association assessments
have been made against the Property which remain unpaid, and that no notice by any government or public authority has been served upon
Seller or anyone on Seller's behalf, including notices relating to violations of zoning, housing, building, safety or fire ordinances which remain
uncorrected, and that Seller knows of no condition that would constitute violation of any such ordinances which remains uncorrected, unless
otherwise specified here:
(B) Seller knows of no other potential notices (including violations) and assessments except as
(C) In the event any notices (including violations) and assessments are received after execution of this Agreement and before settlement, Seller will
notify Buyer in writing, within _ 5 DAYS of receiving the notice or assessment, that Seller will:
I. Comply with notices and assessments at Seller's expense, in which case Buyer accepts the Property and agrees to the RELEASE set forth
in paragraph 25 of this Agreement, OR
2. Not comply with notices and assessments at Seller's expense.
3. If Seller chooses not to comply with notices and assessments, or fails within the time given to notify Buyer if Seller will comply, Buyer
will notify Seller within _5 DAYS in writing that Buyer will either:
a. Comply with notices and assessments at Buyer's expense and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
b. Terminate this Agreement, in which case all deposit ironies paid on account of purchase price will be returned promptly to Buyer
and this Agreement will be VOID.
If Buyer fails to notify Seller within the time given, Buyer accepts the Property and agrees to the RELEASE set forth in para-
graph 25 of this Agreement.
(D) Buyer is advi e d that access to a public road may require issuance of a highway occupancy permit from the Department of Transportation.
t 'I
:r Initials: 1 A/S-2I{ Page 5 o t 8 ? Seller INtials: _ ??
411 (E) If required by law, within 155 _ DAYS of the execution of this Agreement Seller will order tot aeuvery to Duyci, wl v, ?-- - .....----.
412 1. A certification from the appropriate municipal department or departments disclosing notice of any uncorrected violations of zoning, hous- 412
513 ing, building, safety or fire ordinances, AND/OR 213
414 2. A certificate permitting occupancy of the Property. In the event repairs/improvements are requh'ed for the issuance of the certificate, Seller 414
415 will, within 5 DAYS of Seller's receipt of the requirements, notify Buyer of the requirements and whether Seller will make the 415
416 required repairs/improvements at Seller's expense. 416
417 If Seller chooses to make the required repairs/improvements, Buyer agrees to accept the Property as repaired and agrees to the RELEASE set 417
418 forth in paragraph 25 of this Agreement. If Seller chooses not to make the required repairs/improvements, Buyer will, within ?5 DAYS, 411
410 notify Seiler in writing of Buyer's choice to terminate this Agreement OR make the repairs/improvements at Buyer's expense and with Seller's 419
420 permission, which will not be unreasonably withheld. If Seller denies Buyer permission to make the required repairs or if Seller fails to respond 428
421 within the time given, Buyer may, within 5 DAYS, terminate this Agreement in writing, in which case all deposit monies paid on account 421
422 of purchase price will be returned promptly to Buyer and this Agreement will be VOID. 422
423 15. TITLE, SURVEYS & COSTS (1-02) 423
424 (A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing 424
425 deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances, easements of roads, easements visible upon 425
425 the ground, easements of record, privileges or rights of public service companies, if any; otherwise the title to the above described real estate 425
427 will be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. 427
428 (B) Buyer will pay for the following: (I) Title search, title insurance and/or mechanics lien insurance, or fee for cancellation of same, if any; 428
4Z9 (2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, or fee for cancellation of same, if any; (3) Appraisal 429
430 fees and charges paid in advance to mortgage lender, if any; (4) Buyer's customary settlement costs and accruals. 480
431 (C) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney for the preparation of an adequate 431
432 legal description of the Property (or the correction thereof) will be secured and paid for by Seller. Any survey or surveys desired by Buyer or 432
433 required by the mortgage lender will be secured and paid for by Buyer. 433
4,14 (D) In the event Seller is unable to give a good and marketable title and such as will be insured by a reputable Title Company at the regular rates, as 434
435 specified in paragraph 15(A), Buyer will have the option of: (1) taking such title as Seller can give with no change to the purchase price; or (2) being 435
436 repaid all monies paid by Buyer to Seller on account of purchase price and being reimbursed by Seller for any costs incurred by Buyer for any inspec- 436
437 tions or certifications obtained according to the terms of the Agreement, and for those items specified in paragraph 15(B) items (1), (2), (3) and in 437
438 paragraph 15(C), in which case there will be no further liability or obligation on either of the parties hereto and this Agreement will become VOID. 438
439 16. ZONING CLASSIFICATION (1-02) 439
440 Failure of this Agreement to contain the zoning classification (except in cases where the property (and each parcel thereof, if subdividable) is zoned 440
441 solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer, and, if voided, any deposits 441
442 tendered by the Buyer will be returned to the Buyer without any requirement for court action. 442
443 Zoning Classification: Residerltial 443
444 ? ELECTED. Within 15 DAYS of the execution of this Agreement, Buyer will verify that the existing use of the Property as 444
445 is permitted. In the event the use is not permitted, Buyer will, within the time 445
446 given for verification, notify Seller in writing that the existing use of the Property is not permitted and this Agreement will be VOID, in which 446
447 case all deposit monies paid on account of purchase price will be returned promptly to Buyer. Buyer's failure to respond Within the time 447
448 given Will constitute a WAIVER of this contingency and all other terms of this Agreement remain in full force and effect. 4,18
449 17. COALNOTICE 449
450 Cj NOTAPPLICABLE 450
451 ? APPLICABLE 451
452 THIS DOCUMENT MAY NOT SELL, CONVEY, TRANSFER, INCLUDE OR INSURE THE I= TO THE COAL AND RIGHTS OF SUPPORT UNDERNEATH THE SURFACE LAND 452
453 DESCRIBED OR REFERRED TO HEREIN, AND THE OWNER OR OWNERS OF SUCH COAL MAY HAVE THE COMPLETE LEGAL RIGHT TO REMOVE ALL SUCH COAL AND 433
454 IN THAT CONNECTION, DAMAGE MAY RESULT TO THE SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR OTHER STRUCTURE ON OR IN SUCH LAND. (This 454
455 notice is set forth in the manner provided in Section 1 of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges that he may not be obtaining the 465
456 right of protection against subsidence resulting from coal mining operations, and that the property described herein may be protected from damage 450
457 due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgement is made for the purpose 457
408 of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27, 1966." Buyer agrees 458
450 to sign the deed from Seller which deed will contain the aforesaid provision. 459
460 18. POSSESSION (1-02) 460
461 (A) Possession is to be delivered by deed, keys and: 461
462 1. Physical possession to vacant Property free of debris, with all structures broom-clean, at day and time of settlement, AND/OR 462
403 2. Assignment of existing lease(s), together with any security deposits and interest, at time of settlement, if Property is leased at the 463
464 execution of this Agreement or unless otherwise specified herein. Buyer will acknowledge existing lease(s) by initialing said lease(s) at 464
405 time of execution of this Agreement 465
466 (B) Seller will not enter into any now leases, written extension of existing leases, if any, or additional leases for the Property without the written 466
467 consent of Buyer. 457
468 19. RECORDING (3-85) This Agreement will not be recorded in the Office for the Recording of Deeds or in any other office or place of public record 406
469 and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement. 469
470 20. ASSIGNMENT (3-85) This Agreement will be binding upon the parties, their respective heirs, personal representatives, guardians and successors, 470
471 and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer will not transfer or assign this 471
472 Agreement without the written consent of Seller. 472
473 21. DEPOSIT & RECOVERY FUND (1 -02) 473
474 (A) Deposits paid by Buyer within 30 DAYS of settlement will be by cash, cashier's or certified check. Deposits, regardless of the form of 474
475 ' payment and the person designated as payee, will be paid in U.S. Dollars to Broker or party identified in paragraph 3(B), who will retain them 475
476 in an escrow account until consummation or termination of this Agreement in conformity with all applicable laws and regulations. Any uncashed 476
477 check tendered as deposit monies may be held pending the acceptance of this offer. 477
476 (B) Upon termination of this Agreement, the Broker holding the deposit monies will release the deposit monies in accordance with the terms of a 478
479 fully executed written agreement between Buyer and Seller. 479
400 (C) In the event of a dispute over entitlement to deposit monies, a broker holding the deposit monies is required by the Rules and Regulations of 480
481 the State Real Estate Commission (49 Pa. Code §35.327) to retain the monies in escrow until the dispute is resolved. In the event of litigation 481
402 for the return of deposit monies, a broker will distribute the monies as directed by a final order of court or the written Agreement of the parties. 482
483 Buyer and Seller agree that, in the event any broker or affiliated licensee is joined in litigation for the return of deposit monies, the attorneys' 403
484 - fees and costs of the broker(s) and licensee(s) will be paid by the party joining them. 484
465 (D) A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil judgment against a Pennsylvania real estate 405
466 licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exhaust- 486
487 ing all legal and equitable remedies. For complete details about the Fund, call (717) 783-3658, or (800)' 822-2113 (within Pennsylvania) and 4a7
488 (717) 783-4854 (outside Pennsylvania). - 461
409 22. CONDOMINIUM/PLANNED COMMUNITY (HOMEOWNER ASSOCIATION) RESALE NOTICE (1-02) 409
490 ? NOTAPPLICABLE 490
401 ? APPLICABLE: CONDOMINIUM. Buyer acknowledges that the Property is a unit of a condominium that is primarily run by a unit owners' 491
492 association. §3407 of the Uniform Condominium Act of Pennsylvania requires Seller to furnish Buyer with a Certificate of Resale and copies 492
493 of the condominium declaration (other than plats and plans), the bylaws, and the rules and regulations of the association. 493
494 Ji7 APPLICABLE: PLANNED COMMUNITY (HOIvIEOWNER ASSOCIATION). Buyer acknowledges that the Property is part of a planned 494
405 community as defined by the Uniform Planned Community Act. (See Definition of Planned Community Notice). §5407(a) of the Act requires 495
495 Seller to furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws, the rules and regulations of the association, and 496
497 a Certificate gomnining,the provisions set forth in §5407(1) of the Act. 497 i
490 Buyer Initials: v D A/S-2I{ Page f of 3 Seller Initials: ?-"i ; 498
419 THE FOLLOWING APPLIES TO PROPERl'ras tntaa eau.... __-._ .
W0 (A) Within 15 DAYS of the execution of this Agreement, Seller will submit a request to the association for a Certificate of Lceszuc aaru ??-
501 uments necessary to enable Seller to comply with the Act. The Act provides that the association is required to provide these docutneMs within
562 10 days of Seller's request.
509. (B) Seller will promptly deliver to Buyer all documents received from the association. Under the Act, Seller is not liable to Buyer for the failure or
584 delay of.the association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for airy erroneous information provided by
505 the association and included in the Certificate.
506 (C) Buyer may declare this Agreement VOID at any time before Buyer's receipt of the association documents and for 5 days thereafter, OR until
567 settlement, whichever occurs first. Buyer's notice declaring this Agreement void must be in writing; thereafter all deposit monies will be
568 returned to Buyer.
509 (D) In the event the association has the right to buy the Property (right of fast refusal), and the association exercises that right, Seller will reimburse
510 Buyer for all monies paid by Buyer on account of purchase price and for any costs incurred by Buyer for., (1) Title search, title insurance and/or
511 mechanics lien insurance, or fee for cancellation of same, if any; (2) Flood insurance and/or fire insurance with extended coverage, mine sub-
512 sidence insurance, or fee for cancellation of same, if any; (3) Appraisal fees and charges paid in advance to mortgage lender, if any.
513 23. MAINTENANCE & RISK OF LOSS (1-02)
514 (A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically scheduled herein in its present condition, normal
515 wear and tear excepted.
516 (B) In the event any system or appliance included in the sale of the Property fails and Seller does not repair or replace the item, Seller will promptly
517 notify Buyer in writing of Seller's choice to:
518 1. Repair or replace the failed system or appliance before settlement or credit Buyer at settlement for the fair market value of the failed sys-
519 tem or appliance (this option must be acceptable to the mortgage lender, if any). In each case, Buyer accepts the Property and agrees to
520 the RELEASE set forth in paragraph 25 of this Agreement, OR
521 2. Not repair or replace the failed system or appliance, and not credit Buyer at settlement for the fair market value of the failed system or
522 appliance. If Seller does not repair, replace or offer a credit for the failed system or appliance, or if Seiler fails to notify Buyer of Seller's
523 choice, Buyer will notify Seiler in writing within , 5 DAYS or before settlement, whichever is sooner, that Buyer will: -
524 a. Accept the Property and agree to the RELEASE set forth in paragraph 25 of this Agreement, OR
525 b. Terminate this Agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to Buyer
526 and this Agreement will be VOID..
527 (C) Seller will bear risk of loss from fire or other casualties until time of settlement. In the event of damage by fire or other casualties to any prop-
528 erty included in this sale that is not repaired or replaced prior to settlement, Buyer will have the option of rescinding this Agreement and
629 promptly receiving all monies paid on account of purchase price or of accepting the Property in its then condition together with the proceeds
536 of any insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyer's equitable interest in this Property as of
531 the time of execution of this Agreement.
532 24. WAIVER OF CONTINGENCIES (1-02)
533 If this Agreement is contingent on Buyer's right to inspect and/or repair the Property, Buyer's failure to exercise any of Buyer's options within
534 the time limits set forth in this Agreement will constitute a WAIVER of that contingency and Buyer accepts the Property and agrees to the
535 RELEASE set forth in paragraph 25 of this Agreement.
536 Z5. RELEASE (1-02)
537 Buyer hereby releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES, and any OFFI-
538 CER or PARTNER of any one of them and any other PERSON, FIRM, or CORPORATION who may be liable by or through them, from
539 any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of the consequences there.
540 of, whether now known or not, which may arise from the presence of termites or other wood-boring insects, radon, lead-based paint haz-
541 ards, environmental hazards, any defects in the individual on-lot sewage disposal system or deficiencies in the on-site water service system,
542 or any defects or conditions on the Property. Should Seller be in default under the terms of this Agreement, this release does not deprive
543 Buyer of any right to pursue any remedies that may be available under law or equity. This release will survive settlement.
544 26. REPRESENTATIONS (1-02)
545 (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers,
,940 their licensees, employees, officers, or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. It is
547 further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other terms, obligations,
548 covenants, representations, statements or conditions, oral or otherwise of any kind. whatsoever concerning this sale. Furthermore, this
548 Agreement will not be altered, amended, changed, or modified except in writing executed by the parties.
566 - (B) It is understood that Buyer has inspected the Property before signing this Agreement (including Yrxt urs and any personal property
551 specifically scheduled herein), or has waived the right to do so, and has agreed to purchase the Property in its present condition unless
552 otherwise stated in this Agreement. Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made
559 an independent examination or determination of the structural soundness of the Property, the age or condition of the components, envi•
554 ronmental conditions, the permitted uses, or of conditions wdsting in the locale where the Property is situated; nor have they made a
s1,55 mechanical inspection of any of the systems contained therein.
555 (C) Any repairs required by this Agreement will be completed in a workmanlike manner.
567 (D) Broker(s) may perform services to assist unrepresented patties in complying with the terms of this Agreement.
558 (E) The headings, captions, and line numbers in this Agreement are, meant only to make it easier to find the paragraphs.
559 27. DEFAULT (1-02)
560 (A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer:
561 - 1. Fail to make any additional payments as specified in paragraph 3; OR
562 2. Furnish false or incomplete information to Seller, Broker(s), or the mortgage lender, if any, concerning Buyer's legal or financial status,
503 or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain the approval of a
564 mortgage loan commitment OR
566 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement.
566 (B) Unless otherwise checked in paragraph 27 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies, in one of the ,
567 following manners:
568 1. On account of purchase price; OR
669 2. As monies to be applied to Seller's damages; OR 5
570 3. As liquidated damages for such breach. 5
571 (C) 11 Seller is limited to retaining sums paid by Buyer, including deposit monies, as liquidated damages. 5
572 (D) If Seller retains all sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 27 (B) or (C), Buyer and Seller 5
573 will be released from further liability or obligation and this Agreement will be VOID. 5
574 28. MEDIATION (7-96) 5
575 ? NOTAVAILABLE 5.
576 ,Q WAIVED. Buyer and Seller understand that they may choose to mediate at a later date, should a dispute raise, but that there will he no obli- 5
677 . gation nn the part of any party to do so. 51
573 ? ELECTED
576 (A) Buyer and Seller will try to resolve any dispute or claim that may arise from this Agreement thrm.;h mediation, in accordance with the Rules 5i
:;09 and Procedures of he Horne Sellers Home Buyers Dispute Resolution System. Ally ag Cemeni reached tlu'ouph a red afion conference and 6f
581 signed by the patties will be binding. -
s+12 (B) Buyer and Seller acknowledge that they have received, read, and understand the Rules and Procrd 58
mra, of tlne Home Sellers/Home Buyer's 50
583 Dispute Resolution System (see Mediation Notice).
504 (C) This agreement to mediate disputes arising from this Agreement will survive settle 5N
ment. 58
586 f,
58
`? mld )
566 Buyer Initials: A/S-.2K Inge 7 of S 9ener drutials:. SDi
-f"
567
Gas
596
590
597
592
593
594
595
596
597
595
569
6G0
60'1
602
603
504
505
696
507
G00
009
610
611
612
613
514
615
616
617
G70
619
620
-621
622
623
624
625
6'26
527
620
629
636
631
632
633
634
635
636
637
638
639
640
641
642
=543
644
645
645
6,17
646
649
650
651
652
653
654
555
655
657
656
G59
660
661
662
663
664
665
566
667
566
659
570
29. SPECIAL CLAUSES (1-02)
(A) The following are part of this Agreement if checked:
? Sale & Settlement of Other Property
Contingency Addendum (PAR Form SSP)
? Sale & Settlement of Other Property Contingency
with Right to Continue Marketing Addendum
(PAR Form SSP-CNI)
(B)
? Settlement of other Property Contingency Addendum (PAR Form SOP)
? Tenant-Occupied Property Addendum (PAR Form TOP)
U
Plis agve'E3weriF cwt:ipgent: upon purcha-s P:r retie -VJJI7 u;nd aj)rt:'u'•i:111', Spe:c5 eilld
plans fDr con5tuctioll of hotiic.
Buyer and Seller acknowledge receiving a copy of this Agreement at the time of signing.
NOTICE TO PARTIES: WHEN SIGNED, THIS AGREEMENT IS A BINDING CONTRACT. Return by facsimile transmission (FAX) of this
Agreement, and all addenda, bearing the signatures of all parties, constitutes acceptance of this Agreement. Parties to this transaction are advised
to consult an attorney before signing if they desire legal advice.
Buyer has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336.
m Buyer has received a statement of Buyer's estimated closing costs before signing this Agreement.
? Buyer has read and understands the notices and explanatory information set forth In this Agreement.
? Buyer has received a Seller's Property Disclosure Statement before signing this Agreement, if required by law (see Information Regarding
the Real Estate Seller Disclosure Law).
? Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller Is holding deposit money) before signing this
Agreement.
BUYER'S MAILING ADDRESS:
BUYER'S CONTACT NUMBER(S):
WITNESS
WITNESS
DATE
? F
DATE
BUYER DATE
Seller
SELLER'S MAILING ADDRESS:
DATE
Broker's7Licensees' Certifications (check all that are applicable):
? Regarding Lead-Based Paint Hazards Disclosure: Required if Property was built before 1975: The undersigned Licensees involved in
this transaction, on behalf of themselves and their brokers, certify that their statements are true to the beat of their knowledge and belief.
Acknowledgement: The Licensees involved in this transaction have informed Sellerof Seller's obligations under The Residential Lead-Based
Paint Hazard Reduction Act, 42 U.S.C. §4852(d), and are aware of their responsibility to ensure compliance.
Regarding IRA Mortgages: The undersigned Licensees involved in this transaction, on behalf of themselves and their brokers, certify that
the terms of this contract for purchase are true to the best of their knowledge and belief, and that any other agreement entered into by any of
these parties in connection with this transaction is attached to this Agreement.
Regarding Mediation: The undersigned ? Broker for Seller ? Broker for Buyer agree to submit to mediation in accordance with
paragraph 28 of this Agreement.
BROKER FOR SELLER (Company Name) RtVNA idaali.? ioi'?!>=c>SS_r%7•.,25, F;7 .
ACCEPTED BY DATE
BROKER FOR BUYER (Company Name) RE.MAX Rt?[al,t-,y PPOj'.85slOild 12, 27
ACCEPTED BY
DATE
G1
ss
fie
6i
6i
6i
6i
64
6F
671 AIS-2K Page 8 of 8 57
BUYER'S COPY
t Seller has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336.
10 Seller has received a statement of Seller's estimated closing costs before signing this Agreement.
KI Seller has read and understands the notices and explanatory information set forth in this Agreement.
WITNESS - SELLER DATE
1
2
3
4
5
6
7
6
9
10
11
12
13
14
15
16
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18
19
20
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This:form recommended and approved for, but not restricted to use by, the members of the Pennsylvania Association of RF.AT TORS® IPARI_
PROPERTY
SETTLEME
.
1. Broker's Fee
2. Preparation of Deed
3. Transfer Tax
4. Seller's Assist to Buyer
5. Home Warranty
6. Municipal Certification
7. Settlement Fee
8. Notary Fees
9. Survey
10. Tax Certifications
11. Overnight/Express Mail Charges
12. Domestic Lien Search
13. Other ,
14. Other
Estimated Costs
Adjustments (+/-) (e.g., real estate taxes, refund of escrow)
SEC
$
$
,
TOTAL ESTIMATED COSTS/ADJUSTMENTS $
Purchase Price $
Total Costs/Adjustments $
Estimated Proceeds
$
Seller's Estimate of Mortgages, Equity, and Other Loan balances, liens, assessments, etc. $
1 -_? -_a
1 4',
ESTIMATED NET PROCEEDS TO SELLER $ / 47 '_'3 h
?v it
The estimated proceeds do not take into account any other mortgages, liens, assessments or other obligations which may be
against the Property or the Seller.
The above figures are approximated closing costs and will be adjusted as of date. of final settlement, if necessary.
I/We understand and have received a copy of these estimated closing costs before signing the agreement of sale.
SELLER
SELLER
BROKER (Compal
ACCEPTED BY
19 Pennsylvaiii-,
REALTOREK
REALTORS me Volos hr Rawl Eabb®In
of
DATE 2-
DATE
DATE
LAM
COPYRIGHT PENNSYLVANIA ASSOCIATION OF RZ TORS® 1996
9/01
EXHIBIT "B"
1 i V S-S?r•
Ae
I '
Mr. Kris Tsenoff
PARAMOUNT DEVELOPMENT, INC.
AND
Mr. Lee A. Woodall
RE: LOT 5, 1941 MONTEREY DRIVE, MECHANICSBURG, PA 17055
Mr. Tse off and •Mr. W oodall_
This is to inform you of the remaining balance of the escrow being held by RE/MAX Realty
Professionals, Inc. for the above mentioned property. A total amount of $111,000.00 has
been withdrawn from the account by Mr. Lee Woodall as per the statement dated September
23, 2003 - October 23, 2003. The remaining balance in the account is $14,872.61.
Both. Mr. Tsenoff and Mr. Woodall are aware of the account balance of $14,872.61, and
agree this will be the amount RE/MAX Realty Professionals, Inc. will release at the timc
of settlement for the above mentioned property.
ROMW Realty Professionals
4775 Linglestown Road
Harrisburg, Pennsylvania 17112
Office: ('717) 6524700
Fax: (717) 652-5180
Each OHlce lndepandenHy Owned and Opemtmd
9 (t. ..
Witnc s
EXHIBIT "C"
ASSIGNMENT OF RIGHTS
This Assignment of Rights is made on the X day of sOrffia{cc, 2005, by and between ReMax
Realty Professionals. Inc. (hereinafter "ReMax„ ), and Paramount Development, Inc. (hereinafter
"Paramount").
BACKGROUND
On or about July 25, 2002, Paramount and Lee A. Woodall entered into a written agreement of
sale for the premises located at 1941 Monterey Drive, Mechanicsburg, Pennsylvania. The purchase price
of the property was S1,100,000. Upon execution of the agreement of sale, Woodall paid to ReMax, as
agent for Paramount, the sum of $150,000 as a deposit. Paragraph 21(a) of the agreement of sale
provided that ReMax would retain the deposit monies paid by Woodall in an escrow account until
consummation or termination of the agreement of sale. ReMax deposited the $150,000 deposit into a
separate real estate escrow account at M & T Bank in Carlisle, Pennsylvania. ReMax was the only
authorized signatory on the account. On or about September 24, 2002, pursuant to a written release
signed by Paramount and Woodall, the sum of $25,000 was withdrawn from the escrow account to cover
certain construction related expenses, leaving a balance of $125,000. Beginning in September 2003 and
continuing through October 2003, Woodall, without authorization and unbeknownst to Paramount and
ReMax, withdrew a total of 5111,000 from the escrow account for his personal use, leaving a balance of
$14,872.61 in the account. Subsequently, Woodall failed to appear at the time and place fixed for
settlement or to pay the balance of the purchase price as required under the agreement of sale, or to
return the deposit monies that were taken from the escrow account. Paramount commenced legal action
against Woodall on January 29, 2005 to recover the remaining $125,000 deposit monies as liquidated
damages for Woodall's material breach pursuant to Paragraph 27 of the agreement. Judgment by default
was entered in favor of Paramount and against Woodall on May 13, 2005 in the amount of $125,000.
Pursuant to the default judgment and Paragraph 21 of the agreement of sale, Paramount demanded
payment of the deposit monies from ReMax. However, Paramount has been unable to recover the full
deposit paid by Woodall as a result of M & T's unauthorized payment to Woodall of $111,000 from the
escrow account.
RECITALS
ReMax Realty Professionals, Inc. desires to and does irrevocably grant and assign unto Paramount
Development, Inc. any and all rights it may have against M & T Bank arising from the unauthorized
withdrawal of $111,000 from the said escrow account. This assignment includes any ancillary rights arising
from the said unauthorized withdrawal including but not limited to attorneys' fees, statutory damages, and
punitive damages.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, AND INTENDING TO BE LEGALLY BOUND, the parties hereto hereby set their hand and
seal to this assignment.
WITNESS: ReMax Rrlty Professionals, Inc_
?o By: _
President
Paramount Develop en c.
f
By:
Krestu , r< ff, ident
VERIFICATION
I, Kretsu Tsenoff, President, Paramount Development, Inc., hereby verify that the
statements made in this document are true and correct. I understand that false statements
are made subject to the penalties of 18 Pa. C.S. § 4904, relating to sworn falsification to
authorities.
Date: October 25, 2005 _
Kretsu Tseh
President, Paraaro t Development, Inc.
CERTIFICATE OF SERVICE
AND NOW, on this 26th day of October, 2005, I, Matthew Aaron Smith,
Esquire, hereby certify that I have served the foregoing Complaint, by mailing a true
and correct copy by ordinary mail, addressed as follows:
Mark D. Bradshaw, Esq.
P.O. Box 11670
Harrisburg, PA 17108
FENSTERMACHER AND ASSOCIATES, P.C.
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STEVENS & LEE
By: Mark D. Bradshaw
Attorney I.D. No. 61975
4750 Lindle Road
P.O. Box 11670
Harrisburg, PA 17108
(717)561-5258
Attorneys for M&T Bank
PARAMOUNT DEVELOPMENT, INC
Plaintiff,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
M&T BANK,
Defendant.
DOCKET NO. 05-1109
PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT
AND NOW COMES the Defendant, Manufacturers and Traders Trust Company
("M&T Bank") and makes the following Preliminary Objections to Plaintiff s Amended
Complaint, stating in support thereof as follows:
1. LEGAL INSUFFICIENCY/FAILURE TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED
1. Plaintiff s original Complaint was filed on or about May 31, 2005.
2. Defendant filed Preliminary Objections to said Complaint on June 22, 2005.
3. On or about October 27, 2005, Plaintiff filed a pleading denominated
"Complaint", which is in fact an Amended Complaint, and will be referred to as such throughout
the balance of this objection.
4. Count II of Plaintiff s Amended Complaint purports to state a claim for solely
economic losses, in the absence of any allegation of property damage or personal injury. As a
result, Count II of Plaintiff s Amended Complaint is barred by the "economic loss doctrine."
SId 550528vI/066255.00056
5. Moreover, aqy purported claim by Plaintiff, whether sounding in contract,
negligence, or otherwise, was waived by the document entered into by Plaintiff and Lee Woodall
on or about November 18, 2003.
6. That document, made Exhibit "B" to Plaintiff's Amended Complaint, reflects
that Plaintiff clearly understood that Woodall had withdrawn $111,000 from the escrow account
as of November 18, 2003.
7. As a result, at least by November 18, 2003, Plaintiff understood that "the
remaining balance in the account was $14,872.61." See Amended Complaint Exhibit "B".
Consequently, Plaintiff knew and understood that any claim for the $111,000 would, of
necessity, need to be asserted against Mr. Woodall, individually, in the event closing did not
occur.
8. Moreover, the Amended Complaint makes clear that Plaintiff has, in fact,
pursued such rights and remedies as are available to it as against Mr. Woodall. See Amended
Complaint, paragraphs 15-17.
9. Additionally, by November 18, 2003, Plaintiff certainly knew Woodall was
already in default of his obligation to close by May 31, 2003. See Amended Complaint Exhibit
"A"
SLI 550528vUU66255.00056
WHEREFORE, Defendant Manufacturers and Traders Trust Company
respectfully requests judgment in its favor and against Plaintiff, together with costs and such
other and further relief as this court deems appropriate.
Date: December 2, 2005 Respectfully submitted,
STEVENS & LEE
Mark D. Bradshaw, Esquire
Attorney I.D. No. 61975
17 North Second Street
l 6th Floor
Harrisburg, PA 17101
(717) 255-7357
Attorneys for Defendant, M&T Bank
SLl 550528v1/D66255.00056
11
PARAMOUNT DEVELOPMENT, INC.
Plaintiff,
V.
M&T BANK,
Defendant.
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO. 05-1109
CERTIFICATE OF SERVICE
1, MARK D. BRADSHAW, ESQUIRE, ESQUIRE, certify that on this date, I
served a certified true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO
PLAINTIFF'S AMENDED COMPLAINT upon the following counsel of record, by depositing
the same in the United States mail, postage prepaid, addressed as follows:
Shane F. Crosby, Esquire
Fenstermacher and Associates, P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050
Mark D. Bradshaw
Date: G,c Z , 2005
SIA 550528vI/066255.00056
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PARAMOUNT DEVELOPMENT, INC.,
OF
Plaintiff
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-1109
M & T BANK,
Defendant
CIVIL ACTION
PLAINTIFF'S RESPONSE TO DEFENDANT'S
PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT
AND NOW COMES the Plaintiff Paramount Development, Inc., hereinafter
"Paramount," and replies as follows to Defendant Manufacturers and Traders Trust
Company's, hereinafter "M&T Bank," Preliminary Objections to Plaintiffs Amended
Complaint:
1. LEGAL INSUFFICIENCY/FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED
1. Admitted
2. Admitted
3. Admitted
4. Denied. This paragraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this paragraph is hereby denied. In addition, the rationale behind the Economic
Loss Doctrine is to preclude a plaintiff from recovering from a negligent actor
who has no knowledge of a contract or prospective relation and thus has no reason
to foresee any harm to the plaintiffs interests. Here, M&T Bank had knowledge
of the contract between Paramount and themselves and therefore would be able to
foresee that a harm to Paramount's interests would follow a negligent action by
M&T Bank. Additionally, where a claim is grounded upon a contractually
imposed duty, the Economic Loss Doctrine is irrelevant.
5. Denied. This paragraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this paragraph is hereby denied.
6. Denied. The document marked Exhibit "B" to Plaintiff's Amended Complaint
merely reflects that Paramount was aware that Mr. Woodall had withdrawn
$111,000 from the escrow account as of November 18, 2000. Nothing further is
asserted in the document aside from the declaration that RE/MAX Realty
Professionals, Inc. would release the remaining balance at the time of settlement
for the property identified as LOT 5, 1941 Monterey Drive, Mechanicsburg, PA
17055.
7. Denied. This paragraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this paragraph is hereby denied.
8. Admitted. In addition, Paramount's pursuit of rights and remedies against Mr.
Woodall in no way precludes Paramount from pursuing rights and remedies
against M&T Bank in separate actions.
9. Denied. While it is true that the document marked Exhibit "B" to Plaintiff s
Amended Complaint reflects that Paramount was aware that Mr. Woodall had
withdrawn $111,000 from the escrow account, it does not relieve Mr. Woodall or
M&T Bank of their actions. The matter of Mr. Woodall's contractual default is of
no consequence in regards to M&T Bank's actions.
WHEREFORE, Plaintiff Paramount Development, Inc.; respectfully requests
Defendant Manufacturers and Traders Trust Company's preliminary objections are
denied and that judgment be entered in Plaintiff's favor, together with costs and such
other and further relief as this Court deems proper.
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C
By:
J R. Fenst rmac er, squire
Supreme Court I.D. 429940
Matthew Aaron Smith, Esquire
Supreme Court I.D. 494603
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Plaintiff
DATED: December 21, 2005
CERTIFICATE OF SERVICE
AND NOW, on this day of December, 2005, I, Matthew Aaron Smith,
Esquire, hereby certify that I have served the foregoing Plaintill's Response To
Defendant's Preliminary Objections To Plaintiff's Amended Complaint, by mailing a true
and correct copy by United States first class mail, addressed as follows:
Mark D. Bradshaw, Esq.
P.O. Box 11670
Harrisburg, PA 17108
FENSTERMACHER AND ASSOCIATES, P.C.
By: xl:??
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in jidl)
PARAMOUNT DEVELOPMENT, INC., (Plaintiff)
vs.
M & T BANK,
(Defendant)
No. 05-1109 , Civil Term
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendant's Preliminary Objections
2. Identify counsel who will argue cases:
(a) for plaintiff:
Sohn R Fen rmacher. Esq.
(Name and Address)
5115 E. Trindle Road. Mechanicsburt. PA 17050
(b) for defendant:
Mark D Bradshaw Esq
(Name and Address)
P.O. Box 11670, Harrisburg, PA 17108
3. I will notify all parties in writing within two days that this case has been listed for argument
(see attached)
4. Argument Court Date:
Plaintiff
Date: December 21, 2005 Attorney for
Matthew Aaron Smith, Esq. _
Print your name
CERTIFICATE OF SERVICE
AND NOW, on this 9 t day of December, 2005, I, Matthew Aaron Smith,
Esquire, hereby certify that I have served the foregoing Praecipe to List Plaintiff's
Response To Defendant's Preliminary Objections To Plaintiff's Amended
Complaint, by mailing a true and correct copy by United States first class mail,
addressed as follows:
Mark D. Bradshaw, Esq.
P.O. Box 11670
Harrisburg, PA 17108
FENSTERMACHER AND ASSOCIATES, P.C.
By: -
Matthew Aa n S ith
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PARAMOUNT DEVELOPMENT.
INC.,
Plaintiff
vs.
M & T BANK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 05-1109 CIVIL
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HESS AND OLER, J.I
ORDER
AND NOW, this Z 1' day of March, 2006, because they rely on factual
conclusions which cannot be reached on the current state of the record, the preliminary
objections of the defendant to Counts I and III, sounding in breach of contract and conversion,
are DENIED.
By agreement, the preliminary objection of the defendant to Count II, sounding in
negligence, is SUSTAINED and said count is DISMISSED.
vMatthew Aaron Smith, Esquire
For the Plaintiff
4ark D. Bradshaw, Esquire
For the Defendant
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BY THE COURT,
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Mark D. Bradshaw, Esquire
Attorney I.D. No. 61975
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 255-7357
(717) 255-1099 (facsimile)
mdb@stevenslee.com
Attorneys for Defendant, M&T Bank
PARAMOUNT DEVELOPMENT, INC.,
Plaintiff,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
M&T BANK,
Defendant.
DOCKET NO. 05-1109
NOTICE TO PLEAD
TO: Plaintiff, Paramount Development, Inc.
c/o Matthew A. Smith, Esquire
Fenstermacher & Associates, P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050
You are hereby notified to file a written response to the attached New Matter
within twenty (20) days from service hereof or a judgment may be entered against you.
STEVE 4k,
Date: October 3, 2006
Mark D. Bradshaw
Attorney I.D. #61975
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 255-7357
(717) 234-1099 (Facsimile)
mdb@stevenslee.com
Attorneys for Defendant
SLl 643535v 1 /066255.00056
1
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Mark D. Bradshaw, Esquire
Attorney I.D. No. 61975
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 255-7357
(717) 255-1099 (facsimile)
mdb@stevenslee.com
Attorneys for Defendant, M&T Bank
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
DOCKET NO. 05-1109
PARAMOUNT DEVELOPMENT, INC.,
Plaintiff,
V.
M&T BANK,
Defendant.
DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT
AND NOW COMES Defendant, Manufacturers and Traders Trust Company,
("M&T Bank"), by and through its counsel, and makes the following Answer with New Matter
to Plaintiff's Complaint, a varying support thereof as follows:
1. Admitted upon information and belief.
2. Denied as stated. Defendant's proper name is Manufacturers and Traders
Trust Company. It does business as M&T Bank and is a New York corporation having offices at
One West High Street, Carlisle, Cumberland County, Pennsylvania 17013.
3. Following reasonable investigation Defendant is without information sufficient
to form a belief as to the truth of the averments in Paragraph 3, and the same are therefore
denied.
SLl 643535v 1 /066255.00056
2
4. Denied. Following reasonable investigation, Defendant lacks information
sufficient to form a belief as to the truth of the averments of Paragraph 4 and the same are
therefore denied. By way of further answer, Defendant was not a party to, or even aware of the
contract attached to Plaintiff's Complaint as Exhibit A at the time Plaintiff and Woodall entered
into the same.
5. Denied. Following reasonable investigation, Defendant lacks information
sufficient to form a belief as to the truth of the averments of Paragraph 4 and the same are
therefore denied. By way of further answer, Defendant was not a party to, or even aware of the
contract attached to Plaintiff's Complaint as Exhibit A at the time Plaintiff and Woodall entered
into the same.
6. The Agreement made Exhibit A speaks for itself. Defendant had no
knowledge of the Agreement or its terms at the time it was entered into.
7. Admitted.
8. Admitted in part and denied in part as stated. It is admitted only that Re/Max
was initially the only authorized signatory on the account. However, as affirmatively pleaded by
Plaintiff itself in Paragraph 9, Woodall, together with Plaintiff's consent, was permitted to
withdrawal $25,000 from the escrow account on or about September 24, 2002.
9. Admitted.
10. Denied as stated. The averments of Paragraph 10 are denied. Following
reasonable investigation, Defendant lacks information sufficient to form a belief as to the
allegation that the withdrawals were "unauthorized". It is affirmatively denied that any and all
withdrawals were "unbeknownst" to Re/Max. To the contrary, Re/Max, like any other bank
customer, received monthly statements pertaining to this account and had an obligation to review
3
SL I 643 53 5v 1 /06625 5.00056
the same and call any discrepancies to the bank's attention. As to whether Plaintiff knew about
the withdrawals, Defendant has no knowledge, and the averments are therefore denied.
11. Denied. It is admitted only that Woodall apparently withdrew funds from the
account. Although Woodall was not originally a signatory on the account, the account was titled
in his name, and Plaintiff and Re/Max had previously allowed withdrawals from the account for
the benefit of Woodall. It is specifically denied that Defendant, or any agent of Defendant had
actual knowledge that Woodall was not entitled to the funds.
12. Admitted only that the account balance was reduced to $14,872.61.
13. Admitted. By way of further answer, the document made Exhibit B to
Plaintiff's Complaint constitutes a novation, an accord and satisfaction, a waiver (or at a
minimum estoppel) and/or evidences Plaintiff's acquiesce in Woodall's withdrawals with full
knowledge thereof as of November 18, 2003.
14. Denied. Following reasonable investigation, Defendant lacks information
sufficient to form a belief as to the truth of the averments of Paragraph 14.
15. Denied. The averments of Paragraph 15 constitute legal conclusions
requiring no responsive pleading.
16. Denied. Following reasonable investigation, Defendant lacks information
sufficient to form a belief as to the truth of the averments of Paragraph 16.
17. Denied. Following reasonable investigation, Defendant lacks information
sufficient to form a belief as to the truth of the averments of Paragraph 17.
18. Denied. Following reasonable investigation, Defendant lacks information
sufficient to form a belief as to the truth of the averments of Paragraph 18.
SL I 643 53 5v 11066255.00056
4
19. Denied. The averments of Paragraph 19 constitute legal conclusions
requiring no responsive pleading. By way of further answer, Exhibit C to Plaintiff s Complaint
speaks for itself. By way of further answer, to the extent Plaintiff succeeds to any and all rights
Re/Max may have had against Defendant, so also Plaintiff is also subject to any and all defenses
Defendant could raise against Re/Max, including, without limitation, Re/Max's apparent failure
to scrutinize the account statements it was provided in the ordinary course of business.
1. BREACH OF CONTRACT
20. Defendant incorporates by reference the responsive averments to
paragraphs 1 through 19 as though set forth in full herein.
21. Admitted.
22. Denied. The averments of paragraph 22 constitute legal conclusions
requiring no responsive pleading.
23. Denied. The averments of paragraph 23 constitute legal conclusions
requiring no responsive pleading.
24. Denied. The averments of paragraph 24 constitute legal conclusions
requiring no responsive pleading.
25. Denied. The averments of paragraph 25 constitute legal conclusions
requiring no responsive pleading.
26. Denied. The averments of paragraph 26 constitute legal conclusions
requiring no responsive pleading.
27. Denied. The averments of paragraph 27 constitute legal conclusions
requiring no responsive pleading.
5
SL I 643 53 5v 1 /066255.00056
WHEREFORE, Defendant demands judgment in its favor and against Plaintiff
together with costs of such other and further relief as the Court deems appropriate.
II. NEGLIGENCE
28-31. The averments of paragraphs 28 through 31 were dismissed by Order of
March 5, 2006 granting Defendant's Preliminary Objections. Consequently no response need be
made thereto.
III. CONVERSION
32. Defendant incorporates by reference the responsive averments of
paragraphs 1 through 31 as though set forth in full herein.
33. Denied. The averments of paragraph 33 constitute legal conclusions
requiring no responsive pleading. By way of further answer, Defendant incorporates by
reference the responsive averments of paragraph 11 in this matter.
34. Denied. The averments of paragraph 34 constitute legal conclusions
requiring no responsive pleading.
35. Denied. The averments of paragraph 35 constitute legal conclusions
requiring no responsive pleading.
36. Denied. The averments of paragraph 36 constitute legal conclusions
requiring no responsive pleading.
WHEREFORE, Defendant demands judgment in its favor and against Plaintiff
together with costs of such other and further relief as the Court deems appropriate.
SL I 643535v1 /066255.00056
6
NEW MATTER
37. Upon information and belief, Re-Max did not notify M&T Bank at any time
that "unauthorized" withdrawals had been made from the escrow account.
3 8. Upon information and belief, Plaintiff did not notify M&T Bank at any time
that "unauthorized" withdrawals had been made from the escrow account.
39. Upon information and belief, Plaintiff has suffered no damages as a result of
the circumstances described in Plaintiff's Complaint.
40. Upon information and belief, Plaintiff has fully mitigated any potential
damages suffered as a result of the circumstances described in Plaintiff's Complaint.
41. Upon information and belief, Plaintiff sold the property at 1941 Monterey
Drive, Mechanicsburg, PA to another buyer for a higher price than provided under the Woodall
contract of sale.
42. Upon information and belief, Plaintiff actually benefited from Woodall's
default.
43. Plaintiff's Complaint fails to state a claim upon which relief can be granted.
44. Plaintiff knew, as of November 18, 2003, that Woodall had withdrawn
$111,000 from the escrow account, leaving a balance of $14, 872.61.
45. The date for closing on the Woodall purchase and sale agreement was May
31, 2003.
46. Therefore, Woodall was already in default under the purchase and sale
agreement on November 18, 2003.
SLl 643535v 1 /066255.00056
7
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47. Plaintiff's Complaint is barred, in whole or in part by the doctrines of waiver
STEVENS & LEE
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Mark D. Bradshaw, Esquire
Attorney I.D. No. 61975
17 North Second Street
16th Floor
Harrisburg, PA 17101
(717) 255-7357
(717) 255-1099 (facsimile)
mdb@stevenslee.com
Attorneys for Defendant, M&T Bank
and/or estoppel, ratification, novation, accord and satisfaction or acquiescence.
Date: October 3, 2006 Respectfully submitted,
SLl 643535v1/066255.00056
'SEP.-28'06(THU) 14:27 M&TBANK* TEL:711+630+4583
byi28/2006 08:36 7172341099 STEVENS & LEE HSBOH
V?R?,FIfCATYON
P. 002
PAGE 02/04
1, Elizabeth Carson, being duly affirmed according to law, depose and say that I
am the Senior Viec Presidezrt and Regional Sales Manager, Pennsylvao,ia/South for M&T Tank;
that X am authorized to znOr thisVerification on its behalf and hereby state that the facts set
forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge,
information, and belief.
This Verification is made subject to the penalties of 1.8 Pa. C.S.A. §4904, relating
to unsworn falsification to authorities.
°."" 9/ablu
SU 669024v1.1066255.00056
PARAMOUNT DEVELOPMENT, INC.,
Plaintiff,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
M&T BANK,
DOCKET NO. 05-1109
Defendant.
CERTIFICATE OF SERVICE
I, MARK D. BRADSHAW, ESQUIRE, ESQUIRE, certify that on this date, I
served a certified true and correct copy of the foregoing Defendant's Answer with New Matter to
Plaintiff's Complaint upon the following counsel of record, by depositing the same in the United
States mail, postage prepaid, addressed as follows:
Matthew A. Smith, Esquire
Fenstermacher and Associates, P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050
Date: October 3, 2006
?A
Mark D. Bradshaw
SLl 643535v 1 /066255.00056
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PARAMOUNT DEVELOPMENT, INC.,
Plaintiff NO. 05-1109
V.
M & T BANK,
Defendant
: CIVIL ACTION
PLAINTIFF'S REPLY TO DEFENDANT'S ANSWER WITH NEW MATTER TO
PLAINTIFF'S COMPLAINT
AND NOW comes Plaintiff Paramount Development, Inc., by and through their
attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Plaintiff's Reply to
Defendant's Answer with New Matter to Plaintiff's Complaint, as follows:
37. Denied. Re-Max notified Defendant M&T Bank of the unauthorized withdrawals from
the escrow account on many occasions.
38. Admitted. By way of further explanation, Plaintiff was not obligated to notify Defendant
M&T Bank of the unauthorized withdrawals from the escrow account because M&T
Bank had not exercised an ordinary standard of care. (See Generally Lichtenstein v.
Kidder, Peabody & Co., Inc., 840 F.Supp. 374 (W.D. Pa. 1993)).
39. Denied. Plaintiff has suffered damages in excess of $111,000.00. (See Generally
Plaintiff's Amended Complaint).
40. Denied and strict proof thereof is demanded at trial.
41. Admitted in part, denied in part. It is admitted that Plaintiff ultimately sold the property
1941 Monterey Drive, Mechanicsburg, PA to another buyer. It is denied that such sale
was for a higher price than as was provided under the Woodall contract for sale and strict
proof thereof is demanded at trial.
42. Denied. Plaintiff has suffered damages in excess of $111,000.00 because of Woodall's
default.
43. Denied. This paragraph asserts a legal conclusion to which no response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied and strict proof is thereof is demanded at trial.
44. Admitted in so much that while it is true that Plaintiff was aware that Mr. Woodall had
withdrawn $111,000 from the escrow account, it does not relieve Mr. Woodall or
Defendant M&T Bank of their liability.
45. Admitted.
46. Admitted in so much that while it is true that Mr. Woodall was already in default, it does
not mean that Plaintiff was obligated to know of the default.
47. Denied. This paragraph asserts a legal conclusion to which no response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied and strict proof is thereof is demanded at trial.
WHEREFORE, Plaintiff demands judgment against Defendant M&T Bank in the amount
of $111,000, which exceeds the compulsory arbitration limitations, plus costs and such other
relief as the Court deems just and proper.
Respectfully submitted,
FENS?T?ERMACHER AND ASSOCIATES, P.C.
By:
/ John It Fensfermacher
t Supreme Court I.D. #29940
Matthew Aaron Smith
Supreme Court I.D. #94603
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Plaintiff
DATED: ,0C(_ j?NCA7 _26j'?
WO
CERTIFICATE OF SERVICE
AND NOW, on this ,1 day of January, 2007, I, Matthew Aaron Smith, Esquire, hereby
certify that I have served the foregoing Plaintif'f's Reply to Defendant's Answer with New Matter
to Plaintiff's Complaint, by mailing a true and correct copy by United States first class mail,
addressed as follows:
Mark D. Bradshaw, Esq.
P.O. Box 11670
Harrisburg, PA 17108
FENSTERMACHER AND ASSOCIATES,
P.C.
By:
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KRIS TSENOFF and PARAMOUNT
DEVELOPMENT, INC.,
v.
Plaintiffs
M & T BANK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
DOCKET NO. 05-1109
CIVIL ACTION
PRAECIPE TO DISCONTINUE WITH PREJUDICE
TO THE PROTHONOTARY:
Please mark the above-referenced action DISCONTINUED WITH
PREJUDICE.
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
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John R. Fenstermacher
Supreme Court I.D. #29940
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorney for Plaintiffs
v
DATED: &(20 rj 0
A, . '%.
CERTIFICATE OF SERVICE
AND NOW, on this r-; day of June, 2008, I, John R.
Fenstermacher, Esquire, hereby certify that I have served the foregoing Praecipe to
Discontinue With Prejudice by mailing a true and correct copy by United States first
class mail, addressed as follows:
Mark D. Bradshaw, Esq.
17 North Second Street, 16th Floor
P.O. Box 11670
Harrisburg, PA 17108
FENSTERMACHER AND ASSOCIATES, P.C.
Y:
John R. Fenstermacher
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