Loading...
HomeMy WebLinkAbout05-1557JAMES BRITCHER and, JOANNE BRITCHER, Plaintiffs vs. HOMECHECK, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO: -09 - /597 l ?v?l??lLw1 JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a writ of summons in the above captioned action. Writ of Summons shall be issued and forwarded to Sheriffs Office at One Courthouse Square, Carlisle, Pennsylvania 17013. Date: March 23, 2005 To The Above Named Defendants: Karl E. Rominger, Esquire Supreme Court ID# 81924 James I. Nelson, Esquire Supreme Court ID# 91144 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 WRIT OF SUMMONS Homecheck, Inc. 1529 Rodney Road York, Pennsylvania 17404-9716 (717) 764-1920 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU Date: March 23, 2005 1411?V;L Pr thonotaryBy: Deputy n c 4q ni -f- ev. c 'a W 0 ri .n r 0 Frank J. Lavery, Jr., Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant, Homecheck, Inc. JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs V. HOMECHECK, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 05-1,1557 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE TO REMOVE CASE; FROM ARGUMENT LIST To: Curtis R. Long, Prothonotary Please remove the above captioned matter from the Argument List scheduled for July 6, 2005, as Plaintiffs have filed an Amended Complaint. Respectfully submitted, Lavery, Faherty, Young & tatterson, P.C. By: Frank J. Lavery, r. squire 225 Market Street, to 304 P.O. Box 1245 DATE: July 1, 2005 Harrisburg, PA 17108-1245 (717) 233--6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant Homecheck, Inc. CERTIFICATE OF SERVICE I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 1st day of July, 2005, I served a true and correct copy of the foregoing PRAECIPE, via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 ? , ?V/7 Jnch4eA. Morrison Legal Secretary to Frank J. Lavery, Jr., Esquire C) c -n n n nip „. n t. ., -(T C) YC_ Co) w { Z l? Frank J. Lavery, Jr., Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant, Homecheck, Inc. JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs V. HOMECHECK, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 05-1557 CIVIL TERM JURY TRIAL DEMANDED ENTRY OF APPEARANCE To: Curtis R. Long, Prothonotary Please enter the appearance of Frank J. Lavery, Jr., Esquire on behalf of Defendant, Homecheck, Inc., only. Respectfully submitted, DATE: ? I I. ,J 1 L Lavery, Faherty, Young By: Patterson, P.C. Frank J. Lavery, It., Esquire 225 Market Stree , Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant Homecheck, Inc. CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this '%4 'day of April, 2005, I served a true and correct copy of the foregoing Entry of Appearance via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 1 L. Renno Secretary to Frank J. Lavery, Jr., Esquire (3 ?-- ^iY - ?f ,: 1 l'? ???7 ., , ?Si -_... Frank J. Lavery, Jr., Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW V. NO. 05-1557 CIVIL TERM HOMECHECK, INC. Defendant JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT To The Prothonotary of Cumberland County: Please issue Rule upon Plaintiffs to file a Complaint within hereof or suffer judgment non pros. Date: ?i TO THE PLAINTIFF Frank J. Lavery, Attorney for Del RULE (20) days from service Inc. You are hereby ordered and directed to file your Complaint against the Defendant in the above-referenced matter within twenty (20) days of service of this Rule against you or suffer judgment non pros. Date: 2x l_ 19 o! Prothonotary CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 4)dray of April, 2005, I served a true and correct copy of the foregoing Praecipe for Rule to File Complaint via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 M anh . Renno Le al ecretary to Frank J. Lavery, Jr., Esquire ?_ , is ? it ?,.? _y 'l ? __ ! _ .. ?? JAMES BRITCHER and, JOANNE BRITCHER, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1557 HOMECHEK, INC. Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. JAMES BRITCER and : IN THE COURT OF COMMON PLEAS OF JOANNE BRITCHER : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. :NO. 05-1557 HOMECHEK, INC. Defendant COMPLAINT AND NOW, come JAMES and JOANNE BRITCHER, Plaintiffs, by and through their counsel, Rominger, Bayley & Whare, and in support of their Complaint aver as follows: 1. Plaintiffs are adult individuals with a principal address of 589 Middlesex Road, Carlisle, PA 17013. 2. The Defendant is a Pennsylvania Corporation whose principle address is believed to be 1529 Rodney Road, York, PA 17404. 3. On or around February 5, 2003, Defendant conducted an inspection of the log home Plaintiffs were considering purchasing at 589 Middlesex Road, Carlisle, PA 17013. 4. After the completion of said inspection a `Wood Destroying Insect Infestation Report' was completed by Michael Krall, an inspector employed by Defendant Corporation. Attached as Exhibit "A". 5. Under Section II of the `Infestation Report' the box was checked indicating `No visible evidence of a wood destroying insect infestation was observed." 6. On this document appear the signatures of the Defendant's inspector, Michael Krall, and the potential homebuyers, the Plaintiffs. 7. On or about December 26, 2002, Plaintiffs initialed and signed a Seller's Property Disclosure Statement. (attached as Exhibit `B") 8. The Disclosure Statement, in Question 5 sub-part (d), asks, "Are you aware of any termite/pest control reports or treatments for the property in the last 5 years?" Neither the `yes' or `no' box is checked. 9. Plaintiffs purchased said home on or about February 28, 2003. 10. On or about July 9, 2003 Plaintiffs noticed saw dust around their home. 11. Further inspection by Plaintiffs revealed woodpecker holes on the north eve of the home, feces from carpenter bees in the attic, and holes made by Old House Wood Borers. 12. Plaintiffs received an estimate of between $10,640 and $14,200 to repair the damage and estimates of up to $48,000 to replace the damaged logs. COUNT I - BREACH OF CONTRACT 13. Previous paragraphs are incorporated by reference as if fully set out herein. 14. There is a valid contract between the parties. See Exhibit "A". 15. Defendant, by and through its employees and/or agents, failed to adequately inspect the home located at 589 Middlesex Road, Carlisle, PA 17013. 16. Because the Defendant failed to adequately inspect the home, the Plaintiffs have incurred significant expenses and will have to spend an additional, even greater amount to remedy their damages. 17. Defendant breached the contract at issue. 18. Plaintiffs substantially performed under the contract by paying the Defendant for full and satisfactory performance. WHEREFORE, Plaintiffs respectfully request that this Honorable Court award them damages in excess of the local limit of compulsory arbitration, including costs, interest and attorney fees. COUNT II - NEGLIGENT INSPECTION 19. Previous paragraphs are incorporated by reference as if fully set out herein. 20. Plaintiffs hired Defendant to fully inspect the home, the purchase of which Plaintiffs were considering at the time. 21. Defendant is engaged in the business of inspecting residential homes and real property in regards to termites, septic systems, water, radon and lead based paint. 22. The Defendant had a legal duty to adequately inspect the home located at 589 Middlesex Road, Carlisle, PA 17013 and full report said findings to Plaintiffs/potential buyers. 23. Defendant failed to detect and report the presence and evidence of the presence of woodpecker holes on the north eave of the home, feces from carpenter bees in the attic and holes made by Old House Wood Borers, to the potential buyers. 24. Had the Plaintiffs been presented with information from a proper inspection of the home located at 589 Middlesex Road, Carlisle, PA 17013, they would have been aware of the infestation and would not have purchased said property. 25. The failure of Defendant to detect and report such findings has caused the Plaintiffs to incur substantial repair and replacement costs. WHERFORE, Plaintiffs respectfully request that this Honorable Court award them damages in excess of the local limit of compulsory arbitration, including costs, interest and attorney fees COUNT III - DETRIMENTAL RELIANCE 26. Previous paragraphs are incorporated by reference as if fully set forth herein. 27. At all times relevant, the Defendant was engaged in the business of providing to the public, for a fee, inspections of property, namely but not limited to residential dwellings. 28. At all times relevant, the Defendant and its employees and/or agents would detail their inspection findings in the form of visible or non-visible infestations, whether the evidence observed was active or inactive and whether the structure was previously treated and sign said inspection report. 29. Said report would be signed by the inspector, the buyer and the seller. 30. On or about February 5, 2003 an inspection of 589 Middlesex Road, Carlisle, PA, 17013 was conducted by Defendant and an Infestation Inspection Report completed. 31. The before mentioned report, attached as exhibit "A", states that, as to the residence located at 589 Middlesex Road, Carlisle, PA, 17013 - "no visible evidence of a wood destroying insect infestation was observed." 32. At all times relevant hereto, Defendant undertook and assumed a duty to provide residential inspection services to the public, and more particularly to Plaintiffs, which was to inspect the residence located at 589 Middlesex Road, Carlisle, PA 17013, for wood destroying insect infestation, thereby affirming Plaintiffs decision to purchase said real property. 33. At all times relevant hereto, Defendant held itself out as having the degree of knowledge and expertise required to provide the public, and more particularly the Plaintiffs, with a properly conducted and investigated home inspection, so as to give Plaintiffs a complete and detailed report of the home's status as it related to a wood boring worm infestation. 34. At all times relevant hereto, the Plaintiffs relied upon the Defendant to employ its special knowledge and/or expertise to provide a full and complete inspection of said residence and to give plaintiffs the maximum amount of information in making a home buying decision. 34. At all times relevant hereto, the injuries and damages suffered by the Plaintiffs were caused solely due to the negligence, willfulness, wantonness, recklessness, carelessness, and other acts or omissions of the Defendant. 35. By reason of injuries and damages the Plaintiffs have and may in the future be required to expend significant sums of money for treatment and replacement of logs in the residence located at 589 Middlesex Road, all to their great detriment and loss. WHEREFORE, Plaintiffs respectfully request that this Honorable Court award them damages in excess of the local limit of compulsory arbitration, including costs, interest and attorney fees. Date: J? /3 S Respectfully submitted, ROMINGER & BAYLEY & WHARE Kar . Rominger, Esquire Supreme Court ID # 81924 Michael O. Palermo, Jr. Esquire Supreme Court ID # 93334 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Attorneys for Plaintiffs JAMES BRITCHER and, : IN THE COURT OF COMMON PLEAS OF JOANNE BRITCHER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 05-1557 HOMECHEK, INC. Defendant VERIFICATION KARL E. ROMINGER, ESQUIRE, states that he is the attorney for James & Joanne Britcher, Plaintiffs in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: arl E. Rominger, Esquire Attorney for Plaintiffs JAMES BRITCHER and, : IN THE COURT OF COMMON PLEAS OF JOANNE BRITCHER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 05-1557 HOMECHEK INC., Defendant CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for do hereby certify that I this day served a copy of the Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Frank J. Lavery, Jr., Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P. O. Box 1245 Harrisburg, Pa 17108-1245 Dated: Karl E. Rominger, Esquire Attorney for Plaintiffs Wood.Destroying Insect Infestation Inspection Report This is not a structural damaqe report. This form may not be altered. Section I. General Information Acct #: 7809 Company's Business Lic. No. FHA/VA Case No.(if any): Inspection Company, Address, & Phone BU0549 HOMECHEK, 1529 Rodney Road, York, PA 17404-9716 Property Address:589 S. Middlesex Road , Carlisle , PA 17013 Inspector's Name: Structure(s) Inspected: Mike Krall 503 -Ranch Section It. Inspection Findings This report is indicative of the condition of the subject structure(s) on the date of the inspection only and is NOT to be construed as an express or implied warranty or guarantee against latent, concealed, or future infestation or defects. Any such warranty or service agreeent to provide future treatment or inspections may be provided as a separate attachment and only if indicated in Section IV. See Section IX on side 2 for important information. Based on a care visual inspection of the readily accessible areas of the structure(s) inspected: ® a. No Visible evidence of a wood destroying insect infestation was observed. ? b. Visible evidence of a wood destroying insect infestation was observed as follows. ? Live insects; (description & location): ? Insect parts, frass, exit holes, or shelter tubes; (description & location): ? Damage from wood destroying insects was noted in the following area(s): Regarding visible evidence of wood destroying insects: The inspector may find wood which has been damaged by insects. Any damage noted should be considered only as evidence of current or previous infestation of wood destroying insects. If box b is checked above, it should be understood that some degree of damage, including hidden damage, may be present. The inspector's training and experience do not qualify the inspector in damage evalutation or any other building contruction technology and/or repair. Upon receipt of this report, the Seller or the Seller's Agent shall notify the Buyer that any damage should be examined by a qualified individual to determine the need for repair. Any visible evidence observed above appears: ? Active; treatment recommended at this time (Note: FHA and VA require treatment for all active infestations) ? Inactive; no treatment recommended at this time ? Activity and need for treatment cannot be determined without further investigation. Reason: In many cases, based upon visible signs of infestation by wood destroying insects, it is not possible without benefit of subsequent inspections and evaluations over a period of time to ascertain whether an infestation is active or inactive. If a warranty or service agreement is in effect, the company which issued the warranty or service agreement should be contacted. If no warranty or service agreement is in effect, the inspection company or another company may provide treatment, if requested and permitted by regulations, for an additional fee. ? It appears that the structure(s) or a portion therof may have been previously treated. Evidence of previous treatment: This company can give no assurances with regard to work that may have been previously performed by other companies. The company which treated the property should be contacted by the Buyer for treatment and warranty information. _ Section III. Treatment was/is scheduled to be performed by the inspecting company: ® NO ? YES Date: Treatment Description: Section IV. Attachments The following listed attachments are integral parts of this inspection report: Inspection Graph & Reports Section V. Obstructions & Inaccessible Areas he inspector may write out inaccessible areas or The following areas of the structure(s) were obstructed or inaccessibe (see item 4 on side 2): use the following key: ®. Basement 1,3,4,5,6,7,8,9 1. fixed ceilings 12. only visual access ® Crawl Space 5 2. suspended ceiling 13. no access beneath ® Main Level 1 3 4 7 6 8 9 3. fixed wall covering 14. cluttered condition , , , , , , ? Attic . floor covering 15. standing water ® Garage 1,3,6,7 S. insulation 16. dense vegetation ® Exterior 17 6. cabinets or shelving 17. exterior coverings ? Porch 7. stored items 18. window well covers ? Addition 8. furnishings 19. wood pile - ? Other 9. appliances 20. snow 10. no access or entry 21. unsafe conditions 11. limited access Section VI. Additional Comments (may be continued on side 2): Section VII. Inspector's Signature Neither I nor the company for which I am acting have had, presently have, or contemplate having any interest in the property. 1( Certification or Registration No: (if applicable) 1 Date of Inspection: 2/5/2003 Section VIII. Statement of Buyer & Seller This report is integral to, and a necessary part of the inspecting company's full disclosure as to the scope and inherent limitation s of the inspection and report of findings. It is most important that the interested parties acknowledge this advice. The Seller hereto agrees that all known property history information regarding WDI infest tion, da???a fro ynfsvtation, and treatment history has Si f been disclosed to the Buyer. gnature o Sal{ec((s) Cl 'A -y (if refinancing) Q Date: The undersigned hereby acknowledges receipt of a copy of this report I a/ This report must be signed by the Buyer and Seller as applicable. A legible copy of this signature page must be returned to the inspecting company the person ordering this inspection. See section IX on side 2 regarding the scope & limitations of the inspection & this report. Forms VA 26-8850 and HUD-92053 are obsolete after 9/30/95. Submit an Original and two copies. Side 1 form NPCA-1 (6/95) © 1995 National Pest Control Association. All Rights Reserved. No Reproduction of this form is permitted without the express permission of NPCA. CXH161T OOA sr SELLER'S PROPERTY DISCLOSURE STATEMENT 128 1 Property Address :?B9 S, /tI oOcFsEtc FZ A ?/Q ?/ fGE P/L / 70I? 1 - 2 2 3 Seller / 3 4 A seller must disclose to a buyer all known material defects about property being sold that are not readily observable. This disclosure 4 5 statement is designed to assist Seller in complying with disclosure requirements and to assist Buyer in evaluating the property being 5 6 considered. 6 7 This Statement discloses Seller's knowledge of the condition of the property as of the date signed by Seller and is not a substitute for 7 8 any inspections or warranties that Buyer may wish to obtain. This Statement is not a warranty of any kind by Seller or a warranty or 8 9 representation by any listing real estate broker, any selling real estate broker, or their licensees. Buyer is encouraged to address concerns 9 10 about the conditions of the property that may not be included in this Statement. This Statement does not relieve Seller of the obligation 10 11 to disclose a material defect that may not be addressed on this form. 11 12 A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of the 12 13 residential real property or that involves an unreasonable risk to people on the land. 13 14 14 15 1. SELLER'S EXPERTISE Seller does not possess expertise in contracting, engineering, architecture, or other areas related to the 15 is construction and conditions of the property and its improvements, except as follows: 16 17 2. OCCUPANCY e e ? 17 16 (a) Do you, Seller, currently occupy this property? Y s No 18 19 If "no," when did you last occupy the property? 19 28 (b) Have there been any pets living in the house or other structures during your ownership? ? Yes z-<0 20 21 If "yes," describe: 21 22 22 23 3. ROOF r ? 23 24 S (a) Date roof installed: / 4 Documented? ? Yes ? No ? Unknown 24 25 (b) Has the roof been replaced or repaired during your ownership? Q Yes ? No ? ? " " ?K 25 26 were the existing shingles removed? No Unknown (c) If yes, Yes i hi ? ? ? Y 26 27 ng your owners (d) Has. the roof ever leaked dur p es No - 6 27 2a (e) Do you know of any problems with the roof, gutters or downspouts? ? Yes 2r No 23 29 Explain any "yes" answers that you give in this section: F44 SNU/l fEA4 12Fa1.? 29 30 30 31 4. BASEMENTS AND CRAWL SPACES (Complete only ifay plicable) 31 32 (a) Does the property have a sump pump? ? Yes UrNo ? Unknown ? 32 33 (b) Are you aware of any water leakage, accumulation, or dampness within the basement or crawl space? ? Yes (J'No 33 34 If "yes," describe in detail: 34 35 35 36 (c) Do you know 9f any repairs or other attempts to control any water or dampness problem in the basement or crawl space? 36 37 ? Yes W'No 37 38 If "yes," describe the location, extent, date, and name of the person who did the repair or control effort: 38 39 39 4a 5. TERMITES/WOOD-DESTROYING INSECTS, DRYROT, PESTS 40 41 (a) Are you aware of any termites/wood-destroying insects, dryrot, or pests affecting the property? W&s ? No i; 41 42 (b) Are you aware of any damage to the property caused by termites/wood-destroying insects, dryrot, or pests? es ? No 42 43 (c) Is your property currently under contract by a licensed pest control company? ? Yes CKo 43 44 (d) Are you aware of any termite/pest control reports or treatments for the property in the last five years? ? Yes ? No 44 45 Explain any "yes" answers that you give in this section, including the name of any service/treat' ent rovider, if applicable: _ 45 as CAROfuiER ?ECS /1lTgrCEO GJaog- 3pPp "eualj PE<IftEYGtW/S/GTXSe/gE C49t AdM 46 47 6. STRUCTURAL ITEMS V <Ar31 1 fseo7?f f(Lr.Ic u 47 48 (a) Are you aware of any past or present water leakage in the house or other structures? ? Yes' : B'Np 48 49 (b) Are you aware of any past or present movement, shifting, deterioration, or other problems with walls, foundations, or other stmc- 49 59 total components?. ? Yes 2<0 50 51 (c) Are you aware of any past or present problems with driveways, walkways, patios, or retaining walls on the property? ... 51 52 ? Yes "Io sz 53 (d) Is your prope!ly constructed with an Exterior Insulating Finishing System (EIFS), such as drivit or synthetic stucco-1 . - 53 54 ? Yes QYNo ? Unknown 54 55 If "yes," describe any known problems: 55 56 ,•a -.8. 56 57 `?' F ?t ^. x K;rv x 57 . 58 Page 1 of 4 Sfller3sInittaIs3 4LL 58 ® Pennsylvania Association of REALTORSO 1tbb M14YI,bt?,gMN, COPYRIGHT C-X H /!3/T t'13 11 . SYLVANIA ASSOCIATION OF REALTORS®1997 11/99 59 (e) Are there any defects in flooring, including stains? ? Yes 1! o ? Unknown 59 60 - -If "yes," explain: 60 61 62 61 Explain any "yes" answers that you give in this section. When explaining reports to control or repair, please describe the loca- 8z 63 tion and extent of the problem, and the date and person by whom the work was done, if known: 63 64 65 64 7. ADDITIONS/REMODELS Have you made any additions, structural changes, or other alterations to the property? ? Yes 2F-no 65 66 If "yes," describe: 66 67 67 68 8. WATER AND SEWAGE < 88 69 (a) What is the source of your drinking water? ? Public Water Site Water (Well on Property) 69 78 ? Community Water ? None ? Other (explain) 70 71 (b) If your drinking water source is not public: 71 72 When was your water last tested? W (hyt was the result of the test? 72 73 ,? ,? Is the pumping system in working order? L7 Tes ? No 73 74 If "no," explain: 74 75 (c) Do you have a softener, filter, or other purification system? Yes ? No 75 76 If "yes," is the system ? Leased 10wned 77 (d) What is the type of sewage system? ? Public Sewer 21ndividual On-lot Sewage Disposal System 76 77 78 ? Individual On-lot Sewage Disposal System in Proximity to Well ? Community Sewage Disposal System 78 79 ? Ten-acre Permit Exemption olding Tank ? None ? None Available/Permit Limitations in Effect 79 66 If Individual On-lot, what type? ? Cesspool CR'Drainfield ? Unknown ? Other (specify): 80 81 Is there a septic tank on the Property? TrYes ? No ? Unknown 81 82 If "yes," what is the type of tank? ? Metal/steel ? Cement/concrete ? Fiberglass ("Unknown 81 83 ? Other (specify): 83 94 Other type of sewage system (explain): 84 85 86 (e) When was the on-site sewage disposal system last serviced? 1'7'7( 85 86 87 (f) Is there a sewage pump? ? Yes ? No 87 88 If "yes," is it in working order? ? Yes ? No 88 89 (g) ? Is either the water or sewage system shared? ? Yes W O 89 90 If "yes," explain: 98 91 (h) Are you aware of any leaks, backups, or other problems relating to any of the plumbing, water, and sewage-related items? 91 92 ? Yes KrNo sz 93 If "yes," explain: 93 94 9. PL UMBING SYSTEM ? 94 95 (a) Type of plumbing: GYCopper ? Galvanized ? Lead ? PVC ? Unknown 95 96 ? Other (explain): - - 96 97 (b) Are you aware of any problems with any of your plumbing fixturee?s (e.g., including but not limited to. kitchen, laundry, or bath- 97 98 ( room fixtures; wet bars; hot water heater; etc.)? ? Yes ?'N0 98 99 If "yes," explain: 99 toe 10. HEATING AND AIR CONDITION3NG ' 100 101 (a) Type of air conditioning: entral Electric ? Central Gas ? Wall ? None 101 102 Number of window units included in sale Location 192 183 (b) List any areas of the house that are not air conditioned: 103 184 184 105 (c) Type of hearing: 9Yflectric ? Fuel Oil ? Natural Gas ? Propane (On-site) 185 106 Are there wood or coal burning stoves? ? Yes g'<Io If "yes," how many? _ Are they wor ' ? ? Yes ? No 106 107 Are there any fireplaces? 9? Yes ? No If "yes," how many? / Are they working? 6'I'es ? No 107 106 Other types of heating systems (explain): 108 189 109 110 (d) Are there any chimneys? M"Yes ? No If "yes," how many? / Are they working? - es ? No (10 _ 111 When were they last cleaned? 11 112 (e) List any areas of the house that are not heated: 112 113 113 ' 114 (f) Type of water heating: Electric ? Gas ? Solar ? Other: - 114 115 (g) Are you aware of any underground fuel tanks on the property? ? Yes o ns 116 If "yes," describe: 116 117 If tanks are not owned, explain: 117. 118 (h) _ Are you aware of any problems with any item in this section? ? Yes 118 119 If "yes," explain: 119 tza_ Page 2 of 4 Seller's Initials: 120 121 11. ELECTRICAL SYSTEM Are you aware of any problems or repairs needed in the electrical system? ? Yes p'<O : 12 i22 'yes," explain: - if 2 122 123 12. OTHER EQUIPMENT AND APPLIANCES INCLUDED IN SALE (Complete only if applicable) 123 124 Equipment and appliances ultimately included in the sale will be determined. by negotiation and according to the terms of. the 124 125 Agreempt of Sale. 125 126 (a) CVElectric Garage Door Opener No. of Transmitters Y 126 127 (b) ? Smoke Detectors How many? / Location AIALL&WY 127 126 (c) ? Security Alarm System ? Owned ? Leased ? Lease Information 128 129 (d) ? Lawn Sprinkler No. ? Automatic Timer 129 138 (e) ? Swimming Pool _ ? Pool Heater ? Spa/Hot Tub 130 131 Poo Spa Equipment (list): 131 132 (f) frigerator ange 'crowave Oven ishwasher ? Trash Compactor ? Garbage Disposal e ( ) W"IAshe 132 133 r r g 133 134 135 (h) ? ercom (i) ir"Ceiling fans No. Z Location FAA41 LY Ill ODrt A cre* e/ 134 136 0) ? Other: ' 135 136 137 Are any items in this section in need of repair or replacement? ? Yes ? No ? Unknown 137 138 If "yes," explain: 136 139 13. LAND (SOILS, DRAINAGE, AND BOUNDARIES) 139 140 - ` (a) Are you aware of any fill or expansive soil on the property? ? Yes R' o 140 141 (b) Are you aware of any sliding, settling, earth movement, upheaval, subsidence, or earth stability problems that have occurred on 141 142 or affect the property? ? Yes VNo 142 143 Note to Buyer: The property may be subject to mine subsidence damage. Maps of the counties and mines where mine subsidence 143 144 damage may occur and mine subsidence insurance are available through: Department of Environmental Protection, Mine Subsi- 14T 145 Bence Insurance Fund, 3913 Washington Road, McMurray, PA 15317 (800) 922-1678 (within Pennsylvania) or (724) 941-71 00 145 146 (outside Pennsylvania). 146 147 (c) Are you awarrvof any existing or proposed mining, strip-mining, or any other excavations that might affect this property? 147 148 149 ? Yes IT No -- // (d) To your knowledge, is this property, or part of it, located in a flood zone or wetlands area? ? Yes [l?Ny 148 149 158 (e) Do you know of any past or present drainage or flooding problems affecting the property? ? Yes p'No 159 151 (f) Do you know of any encroachments, boundary line disputes, or easements? ? Yes . Ml&o 151 152 Note to Buyer: Most properties have easements running across them for utility services and other reasons. In many cases, the 15.2 153 easements do not restrict the ordinary use of the property, and Seller may not be readily aware of them. Buyers may wish to 153 154 determine the existence of easements and restrictions by examining the property and ordering an Abstract of Title or searching 154 155 the records in the Office of the Recorder of Deeds far the county before entering into an Agreement of Sale. 155 155 (g) Are you aware of any shared or common areas (e.g., driveways, bridges, docks, walls, etc.) or maintenance agreements? 156 157 ? Yes "O 157 158 Explain any "yes" answers that you give in this section: 158 159 159 16o 14. HAZARDOUS SUBSTANCES 160 161 (a) Are you aware of any underground tanks (other than fuel tanks) or hazardous substances present on the property (structure or soil) 161 162 such as, butt pot limited to, asbestos, Polychlorinated biphenyls (PCBs), Ureaformaldehyde Foam Insulation (UFFI), etc.? 162 153 ? Yes of No 163 164 165 (b) To your knowledge, has the property been tested for any hazardous substances? ? Yes ff No ?? (c) Do ou know of an other environmental co th t i ht i h 164 y y ncerns a m g mpact upon t e property? ? Yes Lf No 165 165 Explain any "yes" answers that you give in this section: 166 167 167 163 (d) Do you know of any tests for radon gas that have been performed in any buildings on the property? ;? Yes o 168 169 If "yes," list date, type, and results of all tests below: 169 178 DATE TYPE OF TEST RESOLTs (picocuries/liter or working levels) - DAME OP TESTCNG SERVICE " 179 171 -171 172 172 173 - - '.173 174 (e) Are you aware of any radon removal system on the property? ? Yes 7No 174 175 If "yes," list date installed and type of system, and whether it is in working order below: 176 DATE INSTALLED TYPE OF SYSTEM 'PROVIDER WORKING ORDER -` 178;. 177 ``44 YeS ?. yVO m 118 179 , 1.! +f b Y S Y?'.?`I '179 ' , e Y O 189 1 e •., ?' 18a'i 181 .181 , 182 1 J t?.?.?-tea Page 3 of 4 Seller's Initials: 182 .83(f) If property was constructed, or if construction began, before 1978, you must disclose any knowledge of lead-based paint on the 163 164 , - 'property. Are you aware of any lead-based paint or lead-based paint hazards on the property? ? Yes E3 1?o 164 165 If "yes," explain how you know of it, where it is, and the condition of those lead-based paint surfaces: 185 186 .. 186 187 (g) If property was constructed, or if construction began, before 1978, you must disclose any reports or records of lead-based paint 187 188 or lead-based paint hazards on the property. Ar$, you aware of any reports or records regarding lead-based paint or lead-based 166 189 paint hazards on the property? . ? Yes No 189 198 If "yes," list all available reports and records: 198 191 191 192 15. CONDOMINIUMS AND OTHER HOMEOWNER ASSOCIATIONS (Complete only if applicable) 192 193 Type: ? Condominium ? Cooperative ? Homeowner Association or Planned Community 193 194 Other 194 195 Notice regarding Condominiums, Cooperatives, and Planned Communities: According to Section 3407 of the Uniform Condo- 195 196 minium Act (68 Pa. C.S. §3407 (relating to resale of units) and 68 Pa. C.S. §4409 (relating to resale of cooperative interests)] and 196 197 Section 5407 of the Uniform Planned Community Act (68 Pa. C.S. §5407 (relating to resale of units)), a buyer of a resale unit in a 197 198 condominium, cooperative, or planned community must receive a copy of the declaration (other than the plats and plans), the by- 196 199 laws, the rules or regulations, and a certificate of resale issued by the association in the condominium, cooperative, or planned com- 199 200 munity. The buyer will have the option of canceling the agreement with the return of all deposit monies until the certificate has been zoo 281 provided to the buyer andfor five days thereafter or until conveyance, whichever occurs first. 201 202 16. MISCELLANEOUS 202 203 (a) Are you aw,?,,ar?[G, of any historic preservation restriction or ordinance or archeological designation associated with the property? 203 204 ? Yes W No 204 205 (b) Are you aware of any existing or threatened legal action affecting the property? ? Yes 9- No ? 205 206 (c) Do you know of any violations of federal; state, or local laws or regulations relating to this property? ? Yes W -No 208, 207 (d) Are you aware of any public improvement, condominium or homeowner association assessments against the property that remain 207 208 unpaid or of any violations of zoning, housing, building, safety or fire ordinances that remain uncorrected? ? Yes MIIN?o 2oe 209 (e) Are you aware of any judgment, encumbrance, lien (for example, co-maker or equity loan), overdue payment on support obli- 209 210 gation, or other debt against this property that cannot be satisfied by the proceeds of this sale? ? Yes No 210 211 (f) Are you aware of any reason including a defect in title, that would prevent you from giving a warranty deed or conveying title to the 211 212 property? ? Yes i< 212 213 (g) Are you awars-of any material defects to the property, dwelling, or fixtures which are not disclosed elsewhere on this form? 213 214 ? Yes 0i No 214 215 A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of 215 216 the residential real property or that involves an unreasonable risk to people on the land. 216 217 Explain any "yes" answers that you give in this section: 217 218 218 ,219 219 220 The undersigned Seller represents that the information set forth in this disclosure statement is accurate and complete to the best 220 221 of Seller's knowledge. Seller hereby authorizes the Listing Broker to provide this information to prospective buyers of the prop- 221 222 erty and to other real estate licensees. SELLER ALONE IS RESPONSIBLE FOR THE ACCURACY OF THE INFORMATION 222 223 CONTAINED IN THIS STATEMENT. Seller shall cause Buyer to be notified in writing of any information supplied on this form 223 224 which is rendere inaccurate by a change in the condition of the property following completion of this form. 224 225 225 22s WITNE tl _I t/?x-C/1/ SELLER J DATE 226 227 WITNESS SELLER DATE 227 228 WITNESS SELLER DATE 228 229 229 230 EXECUTOR, ADMINISTRATOR, TRUSTEE SIGNATURE BLOCK 230 231 According to the provisions of the "Real Estate Seller Disclosure Act;" the undersigned executor, administrator or trustee is not required to fill out a Seller's Property 231 232 Disclosure Statement. The executor, administrator or trustee, must, however, disclose any known material defect(s) of the property. - 232 233 DATE - - 233 234 -:234 235 235 236 RECEIPT AND ACKNOWLEDGEMENT BY BUYER 236 237 The undersigned Buyer acknowledges receipt of this Disclosure Statement. Buyer acknowledges that this Statement is not a warranty and that, unless + 237 238 stated otherwise in the sales contract, Buyer is purchasing this property in its present condition. It is Buyer's responsibility to satisfy himself or herselfas 239 to the condition of the property. Buyer may request that the property be inspected, at Buyer's expense and by qualified professionals, to determine the con 239 240 dition of the structure omits components. 239 / 240 241 WITNESS / --' BUYER Oa'1)ATE 242 WITNESS r _ -BUYER DATE ItJ-afv_C 241 ' 242 243 WITNESS BUYER ",DATE' 243' Page 4 of 4 244 r} r?? ?.. ??1 _. ? _._ ? (.:? _ .?} !.? ?_ _ SHERIFF'S RETURN - OUT OF COUNTY CA'?E NO: 2005-01557 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BRITCHER JAMES ET AL VS HOMECHECK INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ?EFENDANT , to wit: HOMECHECK INC but was unable to locate Them deputized the sheriff of YORK serve the within WRIT OF SUMMONS County, Pennsylvania, to On May 11th , 2005 , this office was in receipt of the attached return from YORK Sheriff's Costs: So answers: Docketing 18.00 - ' Out of County 9.00 2? = Surcharge 10.00 R. Thomas Klin Dep York County 22.43 Sheriff of Cumberland County Postage .74 60.17 05/11/2005 ROMINGER BAYLEY WHARE Sworn and subscribed to before me this /3 - day of _2oV A. D. Prothonotaty in his bailiwick. He therefore COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST.,YORK, PA 17401 SERVICE CALL. (717) 771-9601 SHERIFF SERVICE I INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN !I PEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFF/S/ Homecheck Inc 1. TYPE OF WRIT OR COMPL.4 Writ of Summons SERE 5 NAME OF INDIVIDUAL. COMPANY CORPORATION. ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED. OR SOLD Ho T E`Ck Inc 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, A. NO_ CITV, BORO. RNP.STATE AND ZIP CODE) AT 1529 Rodney Road York, PA 17404 7. INDICATE SERVICE' O PERSONAL ? PERSON IN CHARGE U DEPUTIZE U ERT. MAIL U 1ST CLASS MAIL U POSTED 'J OTHER NOW March 24 20 05 I, SHERIFF OF COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute this 1 kd-an(?atake return t ccording to law. This deputization being made at the request and risk of the plaintiff., SHERIFF OF VIM COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE CLUriberland OUT OF COUNly ' ?, T, n ? Please mail return of service to Cumberland County Sherif UT A. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same walwut a watchman, m custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss. destruction, or removal of any property before sheriffs safe thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11. DATE FILED `T ir?L l 12\ SEND NOTICE OF SERVICE COPY TO NAk Uil'.,?.:T...i T"lts. n•? - ??,? IE AND ADDRESS BELOW (This area must be Completed d notice is to be mailed). c mr ii: saca.vn raFac ux sFr 1lrm ainn1crr ?- w RUI Will IC tmLuvv IM5 Ltlft 13. 1 acknowledge receipt of the writ or complaint as indicated above. U A? ECE IVED bs 15 pirahoNHeanng Date 16. HOW SERVED. PERSONAL RESID POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER ( j SEE REMARKS BELOW 17. ? 1 hereby -fy and return UND au 1 am unable to locate the individual, company, etc. named above. (See remarks below.) 18. AND T LE OF 1 (DUAL SE VE / T ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defend^n 19. Date of Service 20 Time of Sem rte. -J ? /? (7 21 . ATT ,WPX Date T.me M?es 1 ate Time Miles Int Dale Time Miles Int. to Time Miles Int. Date Time Miles Int. Dale Time Miles Int 23 41. AFf 42 day James Britcher et al ice Costs 25. NIF 26. Mileage 2 3 5. Advance Costs 36 Service Costs My Con " Signature of 30 Notary 31. SurcJV 132. Tor Costs 33 Found 139 N or nt? 46. Signature of York 47' DATE County Sheriff 146 SanatuteofForejon 50. 1/sCKNOVYLEDGE RECEIPT OF THE SHE6Ne 9 RETURN SIGNATURE ?OF AUTHORIZED ISSUING AUTHORITY qN(1 TITLE 1. WHITE - Issutrtg Authority, 2. PINK - Attorney 3. CANARY - Shenrs Dike 4. BLUE - Sher its Ogre FRANK J. LAVERY, JR., ESQUIRE Attorney ID: PA42370 Email: flavery@laverylaw.com Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Telephone: (717) 233-6633 Facsimile: (717) 233-7003 Attorney for Defendant JAMES BRITCHER and IN THE COURT OF COMMON PLEAS JOANNE BRITCHER, CUMBERLAND COUNTY, PA Plaintiffs CIVIL ACTION - LAW V. NO. 05-1557 CIVIL TERM HOMECHEK, INC. Defendant JURY TRIAL DEMANDED DEFENDANT HOMECHEK, INC.'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant HomeChek, Inc, by and through its counsel, Lavery, Faherty, Young & Patterson, P.C., hereby preliminarily objects to the Complaint filed against it by James and Joanne Britcher (hereinafter, "Plaintiffs"), pursuant to Pa.R.Civ.P. 1028(a)(2),(3)&(4) and avers as follows: 1. On May 13, 2005, Plaintiffs James and Joanne Britcher filed a Complaint against Defendant Homechek, Inc. 2. The Complaint contains three counts and seeks compensatory damages, attorney's fees, and interest. 3. The Complaint purports to assert claims for breach of contract (Count 1), negligent inspection (Count II), and detrimental reliance (Count III). 4. The Complaint alleges that on or about February 5, 2003, Defendant conducted an inspection of the log home that the Plaintiffs were considering purchasing. Complaint at ¶ 3. 5. Plaintiffs claim that Defendant's agent prepared a Wood Destroying Insect Infestation Report, which indicated that no visible evidence of a wood destroying insect infestation was observed. Complaint at ¶ 5. 6. The Report was signed by the inspector and the Plaintiffs. Complaint at ¶ 6 7. The Plaintiffs also claim that on December 26, 2002, they initialed a Seller's Property Disclosure Statement, which did not disclose any information regarding termite/pest control reports or treatments for the property in the last five years. Complaint at % 8. 8. Plaintiffs purchased the home on February 28, 2003. Complaint at ¶ 9. 2 9. On or about July 9, 2003, Plaintiffs allegedly noticed saw dust around their home. Complaint at ¶ 10. 10. Plaintiffs further allege that upon further inspection, they located woodpecker holes on the north eve of the home, feces from carpenter bees in the attic, and holes made by Old House Wood Bores. Complaint at ¶ 11. 11. Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that any party may file preliminary objections to any pleading. See Pa.R.Civ.P. 1028(a) (West 2004). 12. The standard of review of preliminary objections is a limited one. AM/PM Franchise Association v. Atlantic Richfield Co., 584 A.2d 915, 921 (1991). The Court must accept as true all material facts set forth in the complaint, as well as all inferences reasonably deducible from those facts. Sherk v. County of Dauphin, 614 A.2d 226, 227 (1992). In order to grant a demurrer, the law must say with certainty that no recovery is possible. Id. at 227. Furthermore, any doubt that exists as to whether a demurrer should be sustained must be resolved by overruling the objection. Id. 1. PRELIMINARY OBJECTION - Pa.R.Civ.P. 1028(a)(2) - FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT. 13. The foregoing paragraphs are incorporated herein by reference. 14. Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that any party may file preliminary objections to a pleading when the pleading fails to conform to law or rule of court. See Pa.R.Civ.P. 1028(a)(2) (West 2004). A. Failure of Plaintiffs to Properly Verify Complaint 15. Rule 1024 of the Pennsylvania Rules of Civil Procedure provides the following in relevant part: "Every pleading containing an averment of fact not appearing 3 of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified." Pa.R.Civ.P. 1024(a) (West 2004). 16. Rule 1024 further provides in relevant part the following: "The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading." Pa.R.Civ.P. 1024(c) (West 2004). 17. It is clear from the allegations contained in the Complaint that the Plaintiffs possess significant knowledge and information related to their claims. See Pa.R.Civ.P. 1024(c) (West 2004). 18. Moreover, since the Plaintiffs are residents of Carlisle, Pennsylvania, there does not appear to be any reason, and the Complaint does not state any reason, why their verification could not be obtained prior to the filing of the Complaint. See Pa.R.Civ.P. 1024(c) (West 2004). 19. While the Complaint contains a verification signed by Plaintiffs' counsel, Karl E. Rominger, the Complaint does not contain a verification signed by at least one of the Plaintiffs as required. See Pa.R.Civ.P. 1024(a)&(c) (West 2004). B. Failure of Plaintiffs to Specifically State if the Alleged Agreement is Oral or Written 20. Rule 1091 of the Pennsylvania Rules of Civil Procedure provides that "[w]hen any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." Pa.R.Civ.P. 1019(h) (West 2004). 4 21. Plaintiffs claim that a valid contract exists between the parties and in support, attach a copy of a "Wood Destroying Insect Infestation Inspection Report." See Compliant at ¶14. 22. Plaintiffs, however, fail to specifically state whether the alleged Agreement was oral or written as required. C. Failure of Plaintiffs to Attach a Copy of the Alleged Contract 23. Rule 1091 further provides that "(w)hen any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing." Pa.R.Civ.P. 1019(i) (West 2004). 24. Plaintiffs claim that a valid contract exists between the parties and in support, attach a copy of a "Wood Destroying Insect Infestation Inspection Report." See Compliant at 114. 25. The Wood Destroying Insect Infestation Inspection Report, however, fails to establish that a valid contract exists between the parties. 26. Therefore, since Plaintiffs (1) failed to properly verify their Complaint, (2) failed to specifically state if the alleged agreement was oral or written, and (3) failed to attach a copy of a writing evidencing the existence of a valid contract, the Complaint should be dismissed for failure to conform to rule of court. if. PRELIMINARY OBJECTION - Pa.R.Civ.P. 1028(a)(3) - INSUFFICIENT SPECIFICITY IN PLEADING. 27. The foregoing paragraphs are incorporated herein by reference. 5 28. Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that any party may file preliminary objections to a pleading when there is insufficient specificity in the pleading. See Pa.R.Civ.P. 1028(a)(3) (West 2004). A. Alleged Breach of Contract 29. Three elements are necessary to plead properly a cause of action for breach of contract "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881,884 (Pa. Super. Ct. 2000). 30. The Plaintiffs neither pled sufficient material facts nor cited to pertinent contractual language that would establish the above-stated elements to prove a breach of contract claim. 31. More specifically, the Plaintiffs state conclusions that a contract existed, a duty was breached and damages resulted. 32. The Plaintiffs, however, fail to state the terms of the contract. B. Alleged Detrimental Reliance 33. To establish a claim for detrimental reliance, the Plaintiffs must establish the following: (1) misleading words, conduct or silence by the party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel; and (3) no duty on the party seeking to assert estoppel. Lehigh Valley Hosp. v. County of Montgomery, 768 A.2d 1197 (Pa. Commw. Ct. 2001). 34. The Plaintiffs failed to plead sufficient material facts that would establish the above-stated elements to prove a detrimental reliance claim. 6 35. More specifically, while the Plaintiffs allege that an agent of the Defendant failed to adequately inspect the home in question, the Plaintiffs fail to state how the Defendant allegedly misled them. Moreover, the Plaintiffs fail to state any facts material to the issue of reasonable reliance. Finally, the Plaintiffs fail to state any material facts sufficient to establish that they did not have a duty to act. 36. Therefore, since Plaintiffs have failed to plead sufficient material facts to establish claims for breach of contract or detrimental reliance, the claims should be dismissed. III. PRELIMINARY OBJECTION - Pa.R.Civ.P. 1028(a)(4) - PLEADING IS LEGALLY INSUFFICIENT. 37. The foregoing paragraphs are incorporated herein by reference. 38. Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that any party may file preliminary objections to a pleading when the pleading is legally insufficient. See Pa.R.Civ.P. 1028(a)(4) (West 2004). A. Alleged Breach of Contract 39. Three elements are necessary to properly plead a cause of action for breach of contract "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Williams v. Nationwide Mut. Ins. Co., 750 k2d 881,884 (Pa. Super. Ct. 2000). 40. The Plaintiffs have failed to properly allege the above-stated elements, which are necessary to state a claim for breach of contract upon which relief can be granted. 41. More specifically, Plaintiffs failed to allege the terms of the alleged contract. 42. Since the Plaintiffs have failed to allege the terms of the alleged contract, Plaintiffs have failed to properly allege that the Defendant breached a duty owed to the Plaintiffs. 43. Moreover, since the Plaintiffs failed to properly allege that the Defendant breached a duty owed to the Plaintiffs, the Plaintiffs have necessarily failed to properly allege that their alleged damages resulted from the alleged breach of a duty. B. Alleged Detrimental Reliance 44. To establish a claim for detrimental reliance, the Plaintiffs must establish the following: (1) misleading words, conduct or silence by the party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel; and (3) no duty on the party seeking to assert estoppel. Lehigh Valley Hosp, v. County of Montgomery, 768 A.2d 1197 (Pa. Commw. Ct. 2001). 45. The Plaintiffs have failed to allege the necessary above-stated elements to state a claim for detrimental reliance upon which relief can be granted. 46. More specifically, the Plaintiffs fail to allege that the Defendant misled them. 47. Moreover, the Plaintiffs fail to allege that their reliance was reasonable. 48. Finally, the Plaintiffs fail to allege that they also did not have a duty to act. 49. Therefore, since Plaintiffs have failed to allege the elements necessary to state claims of breach of contract and detrimental reliance upon which relief can be granted, the claims should be dismissed. 8 CONCLUSION For the foregoing reasons, the Preliminary Objections should be granted and the Complaint should be dismissed. RESPECTFULLY SUBMITTED, Date: June 1, 2005 By: V ?" FRANK J. L PA BAR ID: Lavery, Faherty, Young SlPatterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Phone: (717) 233-6633 Attorneys for the Defendant 9 FRANK J. LAVERY, JR., ESQUIRE Attorney ID: PA42370 Email: flavery@laverylaw.com Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Telephone: (717) 233-6633 Facsimile: (717) 233-7003 Attorney for Defendant JAMES BRITCHER and IN THE COURT OF COMMON PLEAS JOANNE BRITCHER, CUMBERLAND COUNTY, PA Plaintiffs CIVIL ACTION - LAW V. NO. 05-1557 CIVIL TERM HOMECHEK, INC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on June 1, 2005, I served a true and correct copy of the foregoing Preliminary Objections of Defendant to Complaint of Plaintiffs, via U.S. First Class mail, postage prepaid, addressed as follows: KARL E. ROMINGER, ESQUIRE Rominger & Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 10 (" hJ t ;.. '"(1 fi !_,_ - r __ Tk L? _.- '_ ?.? (,11 G-y d PR4ECIPE 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 full) JAMES BRITCHER AND JOANNE BRITCHER, (Plaintiff) vs. GOMECHEK, INC., No. 05-1557 Civil Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.). Defendant's Preliminary Objections to Plaintiff's Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Karl E. Rominger, Esquire (b) for defendant: Frank J. Lavery, Jr., Esquire 1 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Julv 6, 2005 (Defendant) By: LAVERY4-F HERTY, IOUNG & PATTERSON, P.C. Date: June f( , 2005 A 1114 Harrisburg, P __ Print your name 717-233-6633 Frank J. Lavery, r., Esquire 225 Market St. uite 304 Attorney for Defendant CERTIFICATE OF SERVICE I, Blanche A. Morrisono, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on the 8th day of June, 2005,1 served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARUGMENT, via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 anche A. Morrison, Legal Secretary to rank J. Lavery, Jr., Esquire % C-M, _? rT; i-VI JAMES BRITCHER and, JOANNE BRITCHER, Plaintiffs V. HOMECHEK, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1557 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. JAMES BRITCER and JOANNE BRITCHER Plaintiffs V. HOMECHEK, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1557 PLAINTIFF'S AMENDED COMPLAINT AND NOW, come JAMES and JOANNE BRITCHER, Plaintiffs, by and through their counsel, Rominger, Bayley & Whare, and in support of their Amended Complaint aver as follows: 1. Plaintiffs are adult individuals with a principal address of 589 Middlesex Road, Carlisle, PA 17013. 2. The Defendant is a Pennsylvania Corporation whose principle address is believed to be 1529 Rodney Road, York, PA 17404. 3. On or around February 5, 2003, Defendant conducted an inspection of the log home Plaintiffs were considering purchasing at 589 Middlesex Road, Carlisle, PA 17013. 4. After the completion of said inspection a `Wood Destroying Insect Infestation Report' was completed by Michael Krall, an inspector employed by Defendant Corporation. Attached as Exhibit "A". 5. Under Section II of the `Infestation Report' the box was checked indicating `No visible evidence of a wood destroying insect infestation was observed." 6. On this document appear the signatures of the Defendant's inspector, Michael Krall, and the potential homebuyers, the Plaintiffs. 7. On or about December 26, 2002, Plaintiffs initialed and signed a Seller's Property Disclosure Statement. (Attached as Exhibit "B") 8. The Disclosure Statement, in Question 5 sub-part (d), asks, "Are you aware of any termite/pest control reports or treatments for the property in the last 5 years?" Neither the `yes' or `no' box is checked. 9. Plaintiffs purchased said home on or about February 28, 2003. 10. On or about July 9, 2003, Plaintiffs noticed sawdust around their home. 11. Further inspection by Plaintiffs revealed woodpecker holes on the north eve of the home, feces from carpenter bees in the attic, and holes made by old house wood borers. 12. The presence of said pests, insects and the such, renders the residence unfit , decreases the value of the home and gives the home a stigma value that makes the house unmarketable. 13. Plaintiffs received an estimate of between $10,640 and $14,200 to repair the damage and estimates of up to $48,000 to replace the damaged logs. COUNT I - BREACH OF CONTRACT 13. Previous paragraphs are incorporated by reference as if fully set out herein. W. There was a valid oral contract between the parties, as subsequently evidenced by the fact that Defendant actually performed the inspection, prepared a report and invoiced the client/Plaintiffs. Attached as Exhibit "A" is a copy of Defendant's inspection report. 15. Defendant orally agreed to conduct a home inspection, in return for a promise to pay for said inspection. 16. Plaintiffs are unaware of the existence of a written contract, however, Plaintiffs reserve the right to amend said Complaint should Plaintiff come into receipt of such writing or Defendants provide the same to Plaintiffs. 17. Should any writing affirming the existence of a contract be found, and any part of the written contract contradicts the oral understanding, Plaintiffs oral understanding will supercede said writing. 17. Said agreement was memorialized, at the conclusion of the inspection, in the attached `Wood Destroying Insect Infestation Inspection Report'. 17. An invoice was sent from Defendant's corporate office to Plaintiffs on or about February 6, 2003. Said invoice is attached as Exhibit "C". 18. Exhibit "C" cites `Charges and Credits' for a Water test and a Wood Destroying Insect Infestation Report as conducted on February 5, 2003 and a fee of ninety dollars ($90.00) due to Defendant. 19. Defendant, by and through its employees and/or agents, failed to adequately inspect the home located at 589 Middlesex Road, Carlisle, PA 17013. 20. Defendant's failure to adequately inspect the home of Plaintiff s placed Defendant in breach of the contract memorialized in the signed writing of Exhibit "B". 20. Because the Defendant failed to adequately inspect the home, the Plaintiffs have incurred significant expenses and will have to spend an additional, even greater amount to remedy their damages. 21. Defendant breached the contract at issue. 22. Plaintiffs substantially performed under the contract by paying the Defendant the full amount demanded by Defendant as compensation for the rendering of professional services, ostensibly a competently performed inspection. WHEREFORE, Plaintiffs respectfully request that this Honorable Court award them damages in excess of the local limit of compulsory arbitration, including costs, interest and attorney fees. COUNT II - NEGLIGENT INSPECTION 23. Previous paragraphs are incorporated by reference as if fully set out herein. 24. Plaintiffs hired Defendant to fully inspect the home, the purchase of which Plaintiffs were considering at the time. 25. Defendant is engaged in the business of inspecting residential homes and real property in regards to termites, septic systems, water, radon and lead based paint. 26. The Defendant had a duty to adequately inspect the home located at 589 Middlesex Road, Carlisle, PA 17013 and full report said findings to Plaintiffs/potential buyers. 27. A reasonably conducted, non-negligent inspection would have noted the problems and infestation. 28. Defendant breached it's duty when it negligently failed to detect and report the presence and evidence of the presence of woodpecker holes on the north eave of the home, feces from carpenter bees in the attic and holes made by old house wood borers, to the potential buyers. 29. Had the Plaintiffs been presented with information from a proper inspection of the home located at 589 Middlesex Road, Carlisle, PA 17013, they would have been aware of the infestation and would not have purchased said property. 30. The failure of Defendant to detect and report such findings has caused the Plaintiffs to incur substantial repair and replacement costs. WHEREFORE, Plaintiffs respectfully request that this Honorable Court award them damages in excess of the local limit of compulsory arbitration, including costs, interest and attorney fees. COUNT III - DETRIMENTAL RELIANCE 29. Previous paragraphs are incorporated by reference as if fully set forth herein. 30. At all times relevant hereto, the Defendant was engaged in the business of providing to the public, for a fee, inspections of property, mainly but not limited to residential dwellings. 31. At all times relevant hereto, the Defendant and its employees and/or agents would detail their inspection findings in the form of visible or non-visible infestations, whether the evidence observed was active or inactive and whether the structure was previously treated and sign said inspection report. 32. It was standard practice for any such report to be signed by the inspector, the buyer and the seller. 33.On or about February 5, 2003 an inspection of 589 Middlesex Road, Carlisle, PA, 17013 was conducted by Defendant and an Infestation Inspection Report was completed. 34. The previously mentioned report, attached as exhibit "A", states that, as to the residence located at 589 Middlesex Road, Carlisle, PA, 17013 - "no visible evidence of a wood destroying insect infestation was observed." 35. At all times relevant hereto, Defendant undertook and assumed a duty to provide residential inspection services to the public, and more particularly to Plaintiffs; said duty was to competently inspect the residence located at 589 Middlesex Road, Carlisle, PA 17013, for wood destroying insect infestation, thereby assisting Plaintiffs in their decision whether to purchase said real property. 36. At all times relevant hereto, Defendant held itself out as having the degree of knowledge and expertise required to provide the public, and more particularly the Plaintiffs, with a properly conducted and investigated home inspection, so as to give Plaintiffs a complete and detailed report of the home's status as it related to a wood boring worm infestation. 37. At all times relevant hereto, the Plaintiffs relied upon the Defendant to employ its special knowledge and/or expertise to provide a full and complete inspection of said residence and to give plaintiffs the maximum amount of information in making a home buying decision. 38. At all times relevant hereto, the injuries and damages suffered by the Plaintiffs were caused solely due to the negligence, willfulness, wantonness, recklessness, carelessness, and/or other acts, omissions and silence of the Defendant. 39. Plaintiffs entered into the agreement to have Defendant conduct the home inspection. 40. Plaintiffs have no experience in the home inspection business. 41. Plaintiffs relied on the home inspection, specifically the `Wood Destroying Insect Infestation Report' to decide whether or not to purchase their Log home. 42. By reason of injuries and damages the Plaintiffs have and may in the future be required to expend significant sums of money for treatment and replacement of logs in the residence located at 589 Middlesex Road, all to their great detriment and loss. WHEREFORE, Plaintiffs respectfully request that this Honorable Court award them damages in excess of the local limit of compulsory arbitration, including costs, interest and attorney fees. Date:/U7 G? T Respectfully submitted, ROMINGER & BAYLEY & WHARE Karl E. Rominger, Esquire Supreme Court ID # 81924 Michael O. Palermo, Jr. Esquire Supreme Court ID # 93334 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Attorneys for Plaintiffs JAMES BRITCHER and, : IN THE COURT OF COMMON PLEAS OF JOANNE BRITCHER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 05-1557 HOMECHEK, INC. Defendant VERIFICATION I verify that I am one of the Plaintiffs and that the statements made in the foregoing Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904, relating to unworn falsification to authorities. Date: l o -17 d UU?a ( ItxarLtu2?11si,?CC ll? if anne Britcher, Co-Plaintiff JAMES BRITCHER and, : IN THE COURT OF COMMON PLEAS OF JOANNE BRITCHER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 05-1557 HOMECHEK INC., Defendant CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for do hereby certify that I this day served a copy of the Amended Complaint upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Frank J. Lavery, Jr., Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P. O. Box 1245 Harrisburg, Pa 17108-1245 Dated: Karl E. Rominger, Esquire Attorney for Plaintiffs Wood Destroying Insect Infestation Inspection Report This is not a structuraf damage report. This form may not be altered. Section I. General Information Acct #: 7809 Company's Business Lic. No. HA/VA Case No.(if any): Inspection Company, Address, & Phone BU0549 HOMECHEK, 1529 Rodney Road, York, PA 17404-9716 Property Address: 589 S. Middlesex Road , Carlisle , PA 17013 Inspector's Name: Structure(s) Inspected: Mike Krall 503- Ranch ection II. Inspection Findings This report is indicative of the condition of the subject structure(s) on the date of the inspection only and Is NOT to be construed as an express or implied warranty or guarantee against latent, concealed, or future infestation or defects. Any such warranty or service agreeent to provide future treatment or inspections may be provided as a separate attachment and only if indicated in Section IV. See Section IX on side 2 for important Information. Based on a care visual inspection of the readily accessible areas of the structure(s) Inspected: ® a. No Visible evidence of a wood destroying insect infestation was observed. ? b. Visible evidence of a wood destroying Insect Infestation was observed as follows. ? Live insects; (description & location): ? Insect parts, frass, exit holes, or shelter tubes; (description & location): ? Damage from wood destroying insects was noted in the following area(s): Regarding visible evidence of wood destroying insects: The inspector may find wood which has been damaged by insects. Any damage noted should be considered only as evidence of current or previous infestation of wood destroying insects. If box b is checked above, It should be understood that some degree of damage, Including hidden damage, may be present. The inspector's training and experience do not qualify the inspector in damage evalutation or any other building contruction technology and/or repair. Upon receipt of this report, the Seller or the Seller's Agent shall notify the Buyer that any damage should be examined by a qualified individual to determine the need for repair. Any visible evidence observed above appears: ? Active; treatment recommended at this time (Note: FHA and VA require treatment for all active infestations) ? Inactive; no treatment recommended at this time ? Activity and need for treatment cannot be determined without further investigation. Reason: In many cases, based upon visible signs of infestation by wood destroying insects, it is not possible without benefit of subsequent inspections and evaluations over a period of time to ascertain whether an Infestation is active or inactive. If a warranty or service agreement is in effect, the company which issued the warranty or service agreement should be contacted. If no warranty or service agreement is in effect, the inspection company or another company may provide treatment, if requested and permitted by regulations, for an additional fee. ? It appears that the structure(s) or a portion therof may have been previously treated. Evidence of previous treatment: This company can give no assurances with regard to work that may have been previously performed by other companies. The company which treated the property should be contacted by the Buyer for treatment and warranty information. _ Section III. Treatment was/is scheduled to be performed by the inspecting company: 19 NO ? YES Date: Treatment Description: Section IV. Attachments The following listed attachments are integral parts of this inspection report: Inspection Graph & Reports Section V. Obstructions & Inaccessible Areas The following areas of the structure(s) were obstructed or inaccessibe (see item 4 on side 2): ®.Basement 1,3,4,5,6,7,8,9 ® Crawl Space 5 0 Main Level 1,3,4,6,7,8,9 ? Attic 0 Garage 1,3,6,7 ® Exterior 17 ? Porch ? Addition ? Other the inspector may write out inaccessible areas or Ise the following key: 1. fixed ceilings 12. only visual access 2. suspended ceiling 13. no access beneath 3. fixed wall covering 14. cluttered condition 4. floor covering 15. standing water 5. insulation 16. dense vegetation 5. cabinets or shelving 17. exterior coverings 7, stored items 18, window well covers 8. furnishings 19. wood pile ). appliances 20. snow 10. no access or entry 21. unsafe conditions Section VI. Additional Comments (may be continued on side 2): Section VII. Inspector's Signature Neither I nor the company for which I am acting have had, presently have, or contemplate having any interest in the property. Certification or Registration No: (if applicable) Date of Section VIII. Statement of Buyer & Seller This report is integral to, and a necessary part of the inspecting company's full disclosure as to the scope and inherent limitations of the inspection and report of findings. It is most Important that the interested parties acknowledge this advice. The Seller hereto agrees that all known property history information regarding WDI infestj?tion, dam fro ^ station, and treatment history has been disclosed to the Buyer. Signature of ?,Saltgr(s)? --0'r'°c'"'t.?-V"? _ u wwaertsn V (if refinancingN a copy This report must be signed by the Buyer and Seller as applicable. A legible copy of this signature page must be returned to the inspecting company the person ordering this inspection. See section IX on side 2 regarding the scope at limitations of the inspection & this report. Forms VA 26-8850 and HUD-92053 are obsolete after 9/30/95. Submit an Original and two copies. Side 1 form NPCA-1 (6/95) p 1995 National Pest Control Association. All Rights Reserved. No Reproduction of this form is permitted without the express permission of NPCA. CXH/Q/T trj1 #t SELLER'S PROPERTY DISCLOSURE STATEMENT 128 .1 1 Property Address 3781 S, fir 001,AcEfc P-h C,4At/I6E )OA/700P t 2 2 3 Seller A a 4 A seller must disclose to a buyer all known material defects about property being sold that are not readily observable. Ttris disclosure 4 5 statement is designed to assist Seller in complying with disclosure requirements and to assist Buyer in evaluating the property being a 8 Considered. - 8 7 This Statement discloses Seller's knowledge of the condition of the property as of the date signed by Seller and is not a substitute for 7 a any inspections or warranties that Buyer may wish to obtain: This Statement is not a warranty of any kind by Seller or a warranty or a 9 representation by any listing. real estate broker, any selling real estate broker, or their licensees. Buyer is encouraged to address concerns 9 is about the conditions of the property that may not be included in this Statement This Statement does not relieve Seller of the obligation is n to disclose a material defect that may not be addressed on this form. n 12 A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of the t2 13 residential real property or that involves an unreasonable risk to people on the land. 13 14 14 15 1. SELLER'S EXPERTISE Seller does not possess expertise in contracting, engineering, architecture, or other areas related to the 15 is construction and conditions of the property and its improvements, except as follows: is 17 2. OCCUPANCY ? N e 17 is o s (a) Do you, Seller, currently occupy this property? IY is 19 If "no," when did you last occupy the property? ? up < 19 29 Yes o (b) Have there been any pets living in the house or other structures during your ownership? 20 21 If "yes," describe: 21 22 22 23 3. ROOF ` 23 24 (a) Date roof installed: / o Documented? ? Yes ? Nom ? Unknown ? N Y 24 25 es o (b) Has the roof been replaced or repaired during your ownership? k iK ? U " " 25 26 n nown No were the existing shingles removed? ? Yes? yes, (c) If ? N 26 27 27 o (d) Has. the roof ever leaked during your ownership? f Yes 28 (e) Do you know of any problems with the roof, gutters or downspouts? ? Yes l3" No 28 29 Explain any "yes" answers that you give in this section: CLA t4 29 30 30 31 4. BASEMENTS AND CRAWL SPACES (Complete only if a plicable) 31 32 (a) Does the property have a sump pump? ? Yes f o 0 Unknown Erg , ? 32 33 Yes o (b) Are you aware of any water leakage, accumulation, or dampness within the basement or crawl space? 33 34 If "yes," describe in detail: 34 35 35 36 (c) Do you knowyf any repairs or other attempts to control any water or dampness problem in the basement or crawl space? 36 37 ? Yes O 37 38 If "yes," describe the location, extent, date, and name of the person who did the repair or control effort: 38 39 39 4s 5. TERMITES/WOOD-DESTROYING INSECTS, DRYROT, PESTS / 49 41 (a) Are you aware of any termites/wood-destroying insects, dryrot, or pests affecting the property? fe'Yes ? No ? N 41 42 o (b) Are you aware of any damage to the property caused by termites/wood-destroying insects, dryrot or pests? es 1 42 43 0 (c) Is your property currently under contract by a licensed pest control company? ? Yes 43 44 (d) Are you aware of any termite/pest control reports or treatments for the property in the last five years? ? Yes ? No 45 Explain any "yes" answers that you ggirve in this section, including the name of any service/trea ' ent provider, if applicable: , ;0,"°wirfA S/ferue4W 4 iT s u er E OE1 W 45 4s - , rM A TifeY eettj-.V& i4E?1r? 1 O CARPeol 0Z BEGS / 4a a7 rs ?Efi41{ t /4f00T44 t(LrVC U4V R 6. STRUCTURAL ITEMS ' 47 48 '; ITIVp : (a) Are you aware of any past or present water leakage in the house or other structures? ? Yes 46 49 (b) Are you aware of any past or present movement, shifting, deterioration, or other problems with walls foundations or other struc- 49 s9 tural components?. ? Yes 2,51; 50' 51 (c) Are you aware of any past or present problems with driveways, walkways, patios, or retaining walls on the pfpperty2 52 ? Yes "0'? i,ywy+ .' ° ay. 53 Clstuceo , f - (d) Is your property constructed with an Exterior Insulating Finishing System (EIFS), such as dnvit of syntheu . 53 54 1:1 Yes ffd'No ? Unknown 64 ss If "yes;" describe any known problems: 55 -0. 56 57 - ' G'• 4,k 4 57. sa Page I of 4 Slets ?s Sa. Pennsylvania Association of COPYRIGHT PENNMVANIA JWbCrATtOKOF REALTORS8; 1997 ® REALTORSe t 1 &M 181T .59 (e) Are there any defects in flooring, including stains? ? Yes [W <o • ? Unknown 66 If "yes," explain: 61 ei 61 62 Explain any "yes" answers that you give in this section. When explaining reports to control or repair, please describe the loca- 91 63 tion and extent of the problem, and the date and person by whom the work was done, if known: at 64 65 7. ADDITIONS/REMODELS Have you made any additions, structural changes, or other alterations to the property? ? Yes 69 I7}'1?0 65 66 If "yes," describe: Be 67 as 8. WATER AND SEWAGE < 67 66 69 (a) What is the source of your drinking water? El Public Water W Site Water (Well on Property) 69 70 ? Community Water ? None ? Other (explain) ' 76 71 (b) If your drinking water source is not public: n 72 When was your water last tested? Wh? t was the result of the test? ; 72 73 Is the pumping system in working order? es ? No 73 74 If "no," explain: 74 75 (c) Do you have a softener, filter, or other purification system? Yes ? No 75 76 If "yes," is the system ? Leased CKOwned 76 77 (d) What is the type of sewage system? ? Public Sewer Individual On-lot Sewage Disposal System 77 78 ? Individual On-lot Sewage Disposal ystem in Proximity to Well ? Community Sewage Disposal System 78 79 ? Ten-acre Permit Exemption G?Holding Tank ? None ? None Available/Permit Limitations in Effect 79 to If Individual On-lot, what type? ? Cesspool 19"Drainfield ? Unknown ? Other (specify): 80 81 Is there a septic tank on the Property? ErYes ? No ? Unknown n 82 If "yes," what is the type of tank? ? Metal/steel ? Cement/concrete ? Fiberglass BIU/nknown 6a 83 ? Other (specify): e3 84 Other type of sewage system (explain): 94 85 85 86 (e) When was the on-site sewage disposal system last serviced? _ /aJ 9 L 26 87 (f) Is there a sewage pump? ? Yes ? No 87 88 If "yes," is it in working order? ? Yes ? No i h I h h ? l < 88 89 (g) s e t er t e water or sewage system s ared ? Yes k O 89 90 If "yes," explain: 90 91 (h) Are you aware of any leaks, backups, or other problems relating to any of the plumbing,. water, and sewage-related items? 91 92 ? Yes ONO 92 93 If "yes," explain' 93 94 9. PLUMBING SYSTEM ? l 94 95 (a) Type of plumbing: O C opper ? Galvanized ? Lead ? PVC ? Unknown 95 96 ? Other (explain): 96 97 (b) Are you aware of any problems with any of your plumbing fixture (e.g., including but not limited to: kitchen, laundry, or bath- 97 9s room fixtures; wet bars; hot water heater; etc.)? ? Yes o 98 99 If "yes," explain: 99 100 10. HEATING AND AIR CONDITIO G 100 101 (a) Type of air conditioning: entral Electric ? Central Gas ? Wall ? None 101 tae Number of window units included in sale Location 192 103 (b) List any areas of the house that are not air conditioned: 193 104 104 105 (c) Type of heating: lectric ? Fuel Oil ? Natural Gas ? Propane (On-site). 105 106 Are there wood or coal burning stoves? ? Yes IIo If "yes," how many? _ Are they 1v° ? ? Yes ? No 196 107 Are there any fireplaces? Gilfes ? No If "yes," how many? / Are they working? Ertes ? No 107 tag Other types of heating systems (explain): 108 109 log tto (d) Are there any chimneys? 5KYes ? No If "yes," how many? / Are they working? _ ea "'• ? No - , s iis., m When were they last cleaned? 71Y 112 (e) List any areas of the house that are not heated: 112 . 113 - Y73 114 (f) Type of water heating: lectric ? Gas ? Solar ? Other: 71s (g) Are you aware of any underground fuel tanks on the property? ? Yes o 11s 116 If "yes," describe: it6 11T7 If tanks are not owned, explain: 1t 118 (h) Are you aware of any problems with any item in this section? ? Yes . o 'r " " 119 If yes, explain: v9 ; 120 Page 2 of 4 Seller's Initials. 120 •? -" ern 121 i 1. ELECTRICAL SYSTEM Are you aware of any problems or repairs needed in the electrical system? ? Yes 12z If "yes;" explain: 12 123 12. OTHER EQUIPMENT AND APPLIANCES INCLUDED IN SALE (Complete only if applicable) 12 12 124 Equipment and appliances ultimately included in the sale will be determined,by negotiation and according to the. terms, of the 12. 125 Agreempt of Sale. tr. 120 (a) L?lecttic Garage Door Opener No. of Transmitters J! 12 127 (b) ? Smoke Detectors How many? ! Location 14AtL&WY 12' 128 (c) ? Security Alarm System ? Owned ? Leased ? Lease Information 121 129 (d) ? Lawn Sprinkler No. ? Automatic Timer 12, 130 (e) ? Swimming Pool . ? Pool Heater ? Spa/Hot Tub 131 131 a Equipment (list): P o 131 132 J Sp M erator C] ange UKtcrowave Oven ishwasher ? bash Compactor ? Garbage Disposal er ) she ( -13; 133 r g 13a 134 135 (h) ? ?pterrorn (i) E 'tailing fans No. Z Location _ &1! t t-Y I? 00 uL I? /? iFC ? 131 139 136 0) ? Other: tae 137 Are any items in this section in need of repair or replacement? ? Yes ? No ? Unknown 137 138 If "yes," explain: - 136 139 13. LAND (SOILS, DIEAINAGE, AND BOUNDARIES) 139 140 ` (a) Are you aware of any fill or expansive soil on the property? [I Yes wl?o 140 141 (b) Are you aware of any sliding, settling, earth movement, upheaval, subsidence, or earth stability problems that have occurred On 141 142 or affect the property? ? Yes VNo 142 143 Note to Buyer: The property may be subject to mine subsidence damage. Maps of the counties and mines where mine subsidence 143 144 damage may occur and mine subsidence insurance are available through: Department of Environmental Protection, Mine Subsi- 14Z 145 dence Insurance Fund, 39.13 Washington Road, McMurray, PA 15317 (800) 922-1678 (within Pennsylvania) or (724) 941-7 100 145 146 (outside Pennsylvania). 146 147 (c) Are you awarof any existing or proposed mining, strip-mining, or any other excavations that might affect this property? 147 148 ? Yes No 148 149 (d) To your knowledge, is this property, or part of it, located in a flood zone or wetlands area? ? Yes 149 1s$ (e) Do you know of any past or present drainage or flooding problems affecting the property? [3 Yes o 150 151 (f) Do you know of any encroachments, boundary line disputes, or easements? ? Yes . ak*Tgo 151 152 Note to Buyer. Most properties have easements running across them for utility services and other reasons. In many cases, the 152 153 easements do not restrict the ordinary use of the property, and Seller may not be readily aware of them. Buyers may wish to 153 154 determine the existence of easements and restrictions by examining the property and ordering anAbstract of Title or searching 1s4 155 the records in the Once of the Recorder of Deeds for the county before entering into an Agreement of Sate. 155 156 (g) Are you aware of any shared or common areas (e.g., driveways, bridges, docks, walls, etc.) or maintenance agreements? 156 157 ? Yes "a ` 151 158 Explain any "yes" answers that you give in this section: 158 159 159 16o 14. HAZARDOUS SUBSTANCES 160 161 (a) Are you aware of any underground tanks (other than fuel tanks) or hazardous substances present on the property (structure or soil) tot 152 such as, bu t ?1of limited to, asbestos, Polychlorinated biphenyls (PCBs), Ureaformaldehyde Foam Insulation (UFFI), etc.? 162 163 ., / ? Yes R7 No - - 163. 164 (b) To your knowledge, has the property been tested for any hazardous substances? ? Yes L'l No - 164 165 (c) Do you know of any other environmental concerns that might impact upon the property? ? Yes Or No 165 US Explain any "yes" answers that you give in this section: 166 161 167 166 (d) Do you know of any tests for radon gas that have been performed in any buildings on the property? o 168 169 If "yes," list date, type, and results of all tests below: . -169 176 DATE TYPE OF TEST RFsUt.Ts (picocuries/liter or working levels) 'NAME OTC' 1`ESTINO $EkV1t 176 171 --$ 171 172 173 174 (e) Are you aware of any radon removal system on the property? ? Yes No k : 17` tts If "yes;" list date installed and type of system, and whether it is in working order below s r ats`, 176 DATE INSTALLED TYPE OF SYSTEM PROVIDER :'+67t'Y(frIU` OR"Dk:R. 118; 177 a, Cy 5£ea e?aFYg ,> 178 179 - "roes y° ?O t Y79'. 188 - Ef> <"?.'". :•a ''c. 160-. 1e1 131 182 _1 ! Page 3 of 4 Seller'8 Inrtralsc_? 182 U Corporate Office HOAMECHEK , ??,,,, 1529 Rodney Road York, PA 17404 Whole House • Termite • Septic • Water • Radon • Lead Based Paint Property: 589 S. Middlesex Road Carlisle, PA 17013 STATEMENT Statement Date Buyer(s): James and JoAnn Britcher Seller: Frank Rich Please remit by the Due date noted. 1 Account ID 7809 This statement supercedes all others. Amount Enclosed: $ Please return a copy of this statement with your payment. Thank you. Date Charges & Credits Amount 02/0512003 Buyer Charges Water Test (Total Colifonn Bacteria Test) $40.00 Wood Destroying Insect Infestation 1 $50.00 Buyer Charges Total: $90.00 Amount due on: 03/0512003 Total Amount Paid: $0.00 Total Amount Due: $90.00 Thank You Paae 1 of 1 FORK, PA MFCIIANICSBURG, P:A LANCASTER, PA Tel: (717) 764-1920 Tel: (717) 766-4345 Tel: (717) 898-3201 Fax: (71-1)764-1812 Fax:(888) 393-2820 Fax: (888) 393-2820 ?xH?s?r ,t?., F ? ??? > ? ? -n ?;, ?_ •.. ?! ? ?? ;,C ,;7 G? ` Y 1 ? ) _ ` , -: In ? ?1 FRANK J. LAVERY, JR., ESQUIRE Attorney ID: PA42370 Email: flavery@laverylaw.com Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Telephone: (717) 233-6633 Facsimile: (717) 233-7003 Attorney for Defendant JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 06-1667 CIVIL TERM HOMECHEK, INC. Defendant : JURY TRIAL DEMANDED DEFENDANT HOMECHEK, IIJC.'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT Defendant HomeChek, Inc, by and through its counsel, Lavery, Faherty, Young & Patterson, P.C., hereby preliminarily objects to the Amended Complaint filed against it by James and Joanne Britcher (hereinafter, "Plaintiffs"), pursuant to Pa.R.Civ.P. 1028(a)(3)&(4) and avers as follows: 1. On May 13, 2005, Plaintiffs James and Joanne Britcher filed a Complaint against Defendant Homechek, Inc. 2. On June 1, 2005, the Defendant filed Preliminary Objections to the Complaint. 3. On June 20, 2005, the Plaintiffs filed an Amended Complaint. 4. The Amended Complaint contains three counts and seeks compensatory damages, attorney's fees, and interest. 5. The Amended Complaint purports to assert claims for breach of contract (Count 1), negligent inspection (Count II), and detrimental reliance (Count 111). 6. The Plaintiffs claim that on December 215, 2002, they initialed a Seller's Property Disclosure Statement, which did not disclose any information regarding termite/pest control reports or treatments for the property in the last five years. Amended Complaint at %% 7&8. 7. Plaintiffs claim that a valid oral contract existed between the parties. Id. at ¶ 14. 8. Plaintiffs allege that Defendant orally agreed to conduct a home inspection of the home that they were considering purchasing in return for Plaintiffs' promise to pay for said inspection. Id. at ¶¶ 3&15. 2 9. Plaintiffs state that on or about February 5, 2003, the Defendant performed an inspection of the home and that they paid the Defendant $90.00 for said inspection. Id. at ¶¶ 3&18. 10. Plaintiffs claim that Defendant's agent prepared a Wood Destroying Insect Infestation Report, which indicated that no visible evidence of a wood destroying insect infestation was observed. Id. at It 4&5. 11. The Report was signed by the inspector:and the Plaintiffs. Id. at ¶¶ 6. 12. Plaintiffs purchased the home on February 28, 2003. Id. at % 9. 13. Approximately five months later, on or about July 9, 2003, Plaintiffs allegedly noticed saw dust around their home. Id. at 110. 14. Plaintiffs further allege that upon further inspection, they located woodpecker holes on the north eve of the home, feces, from carpenter bees in the attic, and holes made by Old House Wood Bores. Id. at ¶ 11. 15. Interestingly, in the Seller's Property Disclosure Statement, the seller disclosed the fact that wood-destroying insects and pests were affecting the property. See id. at Exhibit B, ¶ 5(a). 16. Moreover, in the Seller's Property Disclosure Statement, the seller disclosed the fact that the property had damage from wood-destroying insects and pests. See id. at Exhibit B, ¶ 5(b). 17. Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that any party may file preliminary objections to any pleading. See Pa.R.Civ.P. 1028(a) (West 2004). 3 18. The standard of review of preliminary objections is a limited one. AM/PM Franchise Association v. Atlantic Richfield Co., 584 A.2d 915, 921 (1991). 19. The Court must accept as true all material facts set forth in the complaint, as well as all inferences reasonably deducible from those facts. Sherk v. County of Dauphin, 614 A.2d 226, 227 (1992). 20. In order to grant a demurrer, the law must say with certainty that no recovery is possible. Id. at 227. 21. Furthermore, any doubt that exists as to whether a demurrer should be sustained must be resolved by overruling the objection. Id. I. PRELIMINARY OBJECTION - Pa.R.Civ.P. 1028(a)(3) - INSUFFICIENT SPECIFICITY IN PLEADING. 22. The foregoing paragraphs are incorporated herein by reference. 21 Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that any party may file preliminary objections to a pleading when there is insufficient specificity in the pleading. See Pa.R.Civ.P. 1028(a)(3) (West 2004). A. Alleged Breach of Contract 24. Three elements are necessary to plead properly a cause of action for breach of contract "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881,884 (Pa. Super. Ct. 2000). 25. The Plaintiffs neither plead sufficient material facts nor cite to pertinent contractual language that would establish the above-stated elements to prove a breach of contract claim. 4 26. First, Plaintiffs fail to state the agreement between the parties regarding (1) the method to be used to inspect the home, and (2) the extent/degree of said inspection. 27. Such information is necessary to determine if the Defendant breached a duty to the Plaintiffs. 28. Second, Plaintiffs conclude that the Defendant "failed to adequately inspect the home" but fail to offer facts to support this conclusion. 29. Plaintiffs simply conclude that the inspection was inadequate because approximately five months after said inspection, they allegedly discovered the existence of, and damage likely caused by woodpeckers, bees and old house wood bores. 30. Plaintiffs, however, fail to allege facts sufficient to establish that (1) woodpeckers, bees and/or bores did not exist on the property at the time of the inspection, or (2) the inspection failed to meet the industry standard(s). 31. To the contrary, Plaintiffs conclusively establish that they were aware of the existence of wood destroying insects and pests in the home and damage caused by same. See Amended Complaint at Exhibit B, ¶ 5(a)&(b). 32. Therefore, Plaintiffs fail to plead facts sufficient to establish that the Plaintiffs' claimed damages resulted from the alleged conduct of the Defendant. B. Alleged Detrimental Reliance 33. To establish a claim for detrimental reliance, the Plaintiffs must establish the following: (1) misleading words, conduct or silence by the party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel; and (3) no duty on the 5 party seeking to assert estoppel. Lehigh Valley Hosp. v. County of Montgomery, 768 A.2d 1197 (Pa. Commw. Ct. 2001). 34. The Plaintiffs fail to plead sufficient material facts that would establish the above-stated elements to prove a detrimental reliance claim. 35. More specifically, while the Plaintiffs conclude that an agent of the Defendant failed to adequately inspect the home in question, the Plaintiffs fail to state how the Defendant allegedly misled them. 36. Moreover, the Plaintiffs fail to state any material facts sufficient to establish that they did not have a duty to act. 37. Therefore, since Plaintiffs have failed to plead sufficient material facts to establish claims for breach of contract or detrimental reliance, the claims should be dismissed. II. PRELIMINARY OBJECTION - Pa.R.CIV.P. 1028(a)(4) - PLEADING IS LEGALLY INSUFFICIENT. 38. The foregoing paragraphs are incorporated herein by reference. 39. Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that any party may file preliminary objections to a pleading when the pleading is legally insufficient. See Pa.R.Civ.P. 1028(a)(4) (West 2004). A. Alleged Breach of Contract 40. Three elements are necessary to properly plead a cause of action for breach of contract "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881,884 (Pa. Super. Ct. 2000). 6 41. The Plaintiffs fail to properly allege the above-stated elements, which are necessary to state a claim for breach of contract upon which relief can be granted. 42. Plaintiffs fail to state the agreement between the parties regarding (1) the method to be used to inspect the home, and (2) the extent/degree of said inspection. 43. Second, Plaintiffs conclude that the (Defendant "failed to adequately inspect the home" but fail to offer facts to support this conclusion. 44. Plaintiffs simply conclude that the inspection was inadequate because approximately five months after said inspection, they allegedly discovered the existence of, and damage likely caused by woodpeckers, bees and old house wood bores. 45. Plaintiffs, however, fail to allege facts sufficient to establish that (1) woodpeckers, bees and/or bores existed on the property at the time of the inspection, or (2) the inspection failed to meet the industry standard(s). 46. To the contrary, Plaintiffs conclusively establish that they were aware of the existence of wood destroying insects and pests in the home and damage caused by same. See Amended Complaint at Exhibit B, ¶ 5(a)&(b). 47. Therefore, Plaintiffs fail to properly plead that the Plaintiffs' claimed damages resulted from the alleged conduct of the Defendant. B. Negligent Inspection 48. Plaintiff has asserted a claim for "negligent inspection." 49. Undersigned counsel, however, is not aware of a separate tort for "negligent inspection." 50. Rather, a "negligent inspection" is usually asserted as an underlying breach of duty when asserting a tort, i.e., trespass or negligence. See Brown v. 7 Travelers Ins. Co., 254 A.2d 27 (Pa. 1969); Prost v. Caldwell Store. Inc., 187 A.2d 273 (Pa. 1963); Cappelli v. York Operating, 711 A.2d 481 (Pa. Super Ct. 1998); Baker v. Magnetic Analysis Corp., 500 A.2d 470 (Pa. Super Ct. 1985). C. Alleged Detrimental Reliance 51. To establish a claim for detrimental reliance, the Plaintiffs must establish the following: (1) misleading words, conduct or silence by the party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert the estoppel; and (3) no duty on the party seeking to assert estoppel. Lehigh Valley Hosp. v. County of Montgomery, 768 A.2d 1197 (Pa. Commw. Ct. 2001). 52. The Plaintiffs have failed to allege the necessary above-stated elements to state a claim for detrimental reliance upon which relief can be granted. 53. More specifically, the Plaintiffs fail to allege that the Defendant misled them. 54. Moreover, the Plaintiffs fail to allege that they also did not have a duty to act. 55. Therefore, since Plaintiffs have failed to allege the elements necessary to state claims of breach of contract, negligent inspection, and detrimental reliance upon which relief can be granted, the claims should be dismissed. 8 CONCLUSION For the foregoing reasons, the Preliminary Objections should be granted and the Amended Complaint should be dismissed. RESPECTFULLY Date: July 7, 2005 By: y FRANK J. LAVERY, PA BAR ID: 42370 Lavery, Faheirty, Young Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Phone: (717) 233-6633 Attorneys for the Defendant FRANK J. LAVERY, JR., ESQUIRE Attorney ID: PA42370 Email: flavery@laverylaw.com Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 Telephone: (717) 233-6633 Facsimile: (717) 233-7003 Attorney for Defendant JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs V. HOMECHEK, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLA14D COUNTY, PA CIVIL ACTION - LAW NO. 05-1557 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law flmn of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on July 7, 2005, I served a true and correct copy of the foregoing Preliminary Objections of Defendant to Amended Complaint of Plaintiffs, via U.S. First Class mail, postage prepaid, addressed as follows: KARL E. ROMINGER, ESQUIRE Rominger & Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 14 0an / y.? Me a . Remo Le 1 ecretary to Frank J. Lavery, Jr., Esquire 10 n> P ?- `s; c/y ? - . "c`, ?'-' C.... c" Ti M Cr+ - ? -- ? i'« r ? `?-? - , == =}?"n ,. ?; ' _i s . ? .-c ? 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 full) James Britcher and Joanne Britcher (Plaintiff) vs. Homecheck, Inc. (Defendant) No. 05-1557 , Civil Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary objections to Plaintiffs' Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Karl E. Rominger, Esquire (Name and Address) (b) for defendant: Frank J. Lavery, Jr. (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument August 24, 2005 Frank. J. Laver it, Jr., Esquire Date: I is 16 Amended 225 Markat Straat, Sti 304 Print your name Harrisburg, PA 17101 (717) 233-6633 Attorney for Detendan CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law firm of Lavery, Faherty, f? Young & Patterson, P.C., do hereby certify that on this i 5 day of July, 2005, I served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT, via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 o, Legal Secretary to , Jr., Esquire CA ';.i,tJ -17 i -. CID ?? Q 1 25 James Britcher and Joanne Britcher IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. Homecheck, Inc. NO. 05-1557 CIVIL TERM ORDER OF COURT AND NOW, August 25, 2005, by agreement of counsel, the above-captioned matter is continued from the August 24, 2005 Argument Court list. Counsel is directed to relist the case when ready. By the Court, e e E. o fer, P.J. Karl E. Rominger, Esquire For the Plaintiff \ Frank J. Lavery, Jr., Esquire For the Defendant j Court Administrator jk LO z9 Hd 9Z `iflm 5002 Devon M. Jacob, Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA89182 djacob@laverylaw.com Attys for Defendant, Homecheck, Inc. JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW V. HOMECHECK, INC. Defendant NO. 05-1557 CIVIL TERM JURY TRIAL DEMANDED ENTRY OF APPEARANCE Please enter my appearance on behalf of Defendant, Homecheck, Inc., in the above-referenced matter. Respectfully submitted, Lavery, Faherty, Young & By: 01. P.C. IDevon M. Jacob, "squire Attys for Defendant Homecheck, Inc. Date: September 14, 2005 CERTIFICATE OF SERVICE I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this 14`h day of September, 2005, I served a true and correct copy of the foregoing ENTRY OF APPEARANCE, via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Attorneys for Plaintiffs A &?-J e A. Morrison, Legal Secretary to M. Jacob, Esquire 4:' raj 1 C ?=?,? `!1 b?J :'_? _ it ?? i,? _. -_- 1;:?_? y?q C" C? :%:7 .. v:i ?. 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 full) James Britcher and Joanne Britcher (Plaintiff) vs. Homecheck, Inc. (Defendant) No. 05-1557 Civil Tenn 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminarv Objections to Plaintiffs' Amended Comolaint 2. Identify counsel who will argue cases: (a) for plaintiff: Karl E. Rominger, E goir (Name and Address) (b) for defendant: Frank J. Lavery, Jr., Esquire (Name and Address) Devon M. Jacob, Esquire 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: By: Date: September 14, 2005 ery, FaAerty, Young & Patterson, PC Devon M. i6acob, Esquire 225 Market fit-. Suito 204 franVrisburg, PA 17101 (717) 233-6633 Attomey for Defendant CERTIFICATE OF SERVICE I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young & Patterson, P.C., do hereby certify that on this le day of September, 2005, I served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT, via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley & Whare 155 South Hanover Street Carlisle, PA 17013 Attorneys for Plaintiffs Blanche A. Morrison, Legal Secretary to Devon M. Jacob, Esquire ?> , , t ? -; ?, s? - { _?, '??, - `. ti' ?_,? .. __ K JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-1557 CIVIL HOMECHEK, INC., Defendant JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS AND OLER, J.J. ORDER AND NOW, this /2' day of December, 2005, following argument thereon, the preliminary objections of the defendant are DENIED. I'll ,. arl Rominger, Esquire For the Plaintiff Rank J. Lavery, Jr., Esquire `9-avon M. Jacob, Esquire For the Defendants Arn 1 0 ? BY THE COURT, << -? ?, __ _. .?., JAMES and JOANNE BRITCHER, Plaintiffs v. HOMECHEK,INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 05-1557 PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Karl E. Rominger, counsel for the Plaintiffs in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is in excess of $48,000.00 but for arbitration we claim the statutory limit of $35,000.00. The counterclaim of the Defendant in the action is $0. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: James D. Young, Esquire and Karl E. Rominger, Esquire. WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. 41 Karl E. Rominger, Esquire Attorney for Plaintiff 155 South Hanover Street Carlisle, PA 17013 Telephone: (717) 241-6070 ORDER OF COURT AND NOW, , 2008, in consideration of the foregoing Petition, , Esquire, , Esquire, and , Esquire, are appointed arbitrators in the above-captioned action (or actions) as prayed for. BY THE COURT: J. am '' g C ! G7 ' ll ?J D JAMES and JOANNE BRITCHER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW HOMECHEK,INC. Defendant : NO. 05-1557 PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Karl E. Rominger, counsel for the Plaintiffs in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is in excess of $48,000.00 but for arbitration we claim the statutory limit of $35,000.00. The counterclaim of the Defendant in the action is $0. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: James D. Young, Esquire and Karl E. Rominger, Esquire. WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Karl E. Rominger, Esquire Attorney for Plaintiff 155 South Hanover Street Carlisle, PA 17013 Telephone: (717) 241-6070 ORDER OF COURT AND NOW, ,3908, in consideration of the foregom Pf ition squi , l?AaLd , Esquire, and CX W4Ad W Ku44,Esquire, are appointed arbitrators in the above-captioned ction (or actions) as prayed for. BY T COURT An- J. o o t ID ?r ? ? ag JAMES BRITCHER, ET AL., PLAINTIFFS V. HOMECHECK, INC., DEFENDANT COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-1557 CIVIL TERM ORDER OF COURT AND NOW, this day of January, 2008, the appointment of Edward A. Ruud, Jr., Esquire, to the Board of Arbitrators in the above-captioned case, IS VACATED. Gerald J. Shekletski, Esquire, is appointed in his Harold S. Irwin, III, Esquire Chairman Edgar B. Bayley, J. Gerald Shekletski, Esquire / 414 Bridge Street, P.O. Box E New Cumberland, PA 17070 Court Administrator iPv Cep :sal I13p109 I 10 c.r? Q +co J" - FP a M }- i .} ? U c v Ffi I;p 0FF` o i i-3 r", r= i t? 9 r-t 6 1 r? ?. Frank J. Lavery, Jr., Esquire u Devon M. Jacob, Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 Atty No. PA89182 flavery Wlaverylaw.com diacob(a-.laverylaw.com Attys for Defendant JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs V. HOMECHECK, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 05-1557 CIVIL TERM JURY TRIAL DEMANDED APPENDIX IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Exhibit A Pertinent portions of the deposition transcript of Plaintiff, Joanne Britcher with Exhibits Exhibit B Affidavit of Steve Johnson Respectfully submitted, DATE: / //2 /` J Lavery Faherty Patterson By: Frank J. Lavery, J I, Esquire Devon M. Jacob, quire 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633,(telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant 2 EXHIBIT "A" NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 1 2 3 4 5 6 7 8 9 10 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA James Britcher and, Joanne Britcher, Civil Action - Law Plaintiffs VS. HomeChek, Inc. , Defendant : No. 05-1557 DEPOSITION OF: Joanne Britcher TAKEN BY: Defendant wr-rr)RE..-......... ....... ........ __._.___._..Rairiona Devl_ .n...__.__ Notary Public 12 DATE: February 26, 2010, 1:56 p.m. 13 PLACE: 225 Market Street 14 Harrisburg, Pennsylvania 15 16 APPEARANCES: 17 For - Plaintiffs 18 Vincent Monfredo, Esquire Rominger & Associates 19 155 South Hanover Street Carlisle, PA 17013 20 21 For - Defendant James D. Young, Esquire 22 Lavery, Faherty, Young & Patterson 225 Market Street 23 Harrisburg, PA 17108 24 25 ORIGINAL Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 3 I JOANNE BRITCHER, called as a witness, 2 being duly sworn, testified as follows: 3 EXAMINATION 4 BY MR. YOUNG: 5 Q. Would you please give the court reporter 6 your full name and address? 7 A. Joanne Britcher, 589 South Middlesex 8 Road, Carlisle, PA 17015. 9 Q. Throughout the deposition, do you want me 10 to refer to you as Mrs. Britcher or Joanne -- 11 A. Joanne. 12 Q. My name is Jim Young and I represent 13 HomeChek in a lawsuit that you and your husband brought 14 against them. The purpose of this deposition is for me 15 to ask you questions, which may be relevant to the 16 claims and defenses in the lawsuit. Do you understand 17 the purpose of the deposition? 18 A. Yes. 19 Q. If at any time you don't hear or 20 understand one of my questions, would you have me 21 repeat it so you do hear and understand it? 22 A. Yes. 23 Q. If you answer a question, we are going to 24 assume you heard it and understood it and are giving us 25 your best recollection; is that fair? Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 21 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. That is what your complaint says. A. Right. And I agree that you are reading that from that complaint correctly. On December the 26th -- MR. YOUNG: You have page 4. Off the record for a second. (Discussion held off the record.) BY MR. YOUNG: Q. Now that we have the benefit of Page 4, March 12, 2001; is that correct? A. This is what this says, but '01? There is something wrong here, I think, because this says '01. Q. Did you raise any issue with Valerie that this was a disclosure statement that was more than a year and a half old? A. I did not. Q. You would agree that you and your husband signed it on December 26, 2002? A. Yes, I agree. Q. And right above the signature there it says, it is buyer's responsibility to satisfy himself or herself as to the condition of the property. Buyer may request the property be inspected at buyer's Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 22 1 expense and by qualified professionals to determine the 2 condition of the structure or its components; is that 3 correct? 4 A. Yes. 5 Q. Did you ask any questions at all of 6 Valerie when you received this seller's property 7 disclosure statement? 8 A. I do not recall. No, I don't recall. 9 Q. Directing your attention to Page 1 of 10 Exhibit 1, Paragraph 5, under A it says, are you aware 11 of any termites, wood-destroying insects, dry rot or 12 pests affecting the property, and the answer was yes; 13 is that correct? 14 A. Yes. 15 Q. Did you raise any issue with Mr. Rich at 16 that time as to the nature and extent of the problems 17 with termites or wood-destroying insects? 18 A. No. I can answer that explicitly, that I 19 did not raise any questions with him. 20 Q. You read this document before signing it 21 and initialing it; correct? 22 A. Yes. 23 Q. I thought your testimony was that after 24 either your first or second visit, that you wanted to 25 hold off and make sure that everything was okay before Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 23 1 you went ahead with buying the property; correct? 2 A. Right. 3 Q. On December 26, 2002, you are reading a 4 document telling you that thi s log home that you are 5 about to buy has had a prior history of termites, 6 wood-destroying insects, dry rot or pes ts affecting the 7 property; is that correct? 8 A. Yes. 9 Q. Yet you asked no questions of either the 11 time? 12 A. Now, I don't recall asking any questions 13 to Valerie. I can tell you that I did not ask any 14 questions to Mr. Rich, but I don't recall asking any 15 questions to Valerie. 16 Q. Wouldn't that be something that would be 17 really important to you in buying a log home, that the 18 log home that you are about to pay $213,000 for, had a 19 history of termite and wood-destroying infestation? 20 A. Yes. 21 Q. Okay. Then 5(b), are you aware of any 22 damage to the property caused by termites, 23 wood-destroying insects, dry rot or pests and it is 24 checked yes; is that correct? 25 A. Yes. Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-665-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 24 1 Q. And you asked no questions of Mr. Rich 2 about that? 3 A. I definitely did not ask any questions to 4 Mr. Rich. 5 Q. Do you know if you directed any questions 6 to Valerie Clouse? 7 A. That, I don't recall. I just don't 8 recall asking her. That is all I can say about that. 9 Q. 5(c), is your property currently under a 10.........._._..ed tra•?t. }may.. ._siren.?e.d_ppe t_cat rcal._.._compax?y.. _...It wa.s. _ 11 checked no. Did you ask any questions of Mr. Rich 12 about that? 13 A. Nothing to Mr. Rich. 14 Q. Did you make any inquiry with respect to 15 the information conveyed in sections 5(a), 5(b) and 16 5(c) with respect to the nature and extent of the 17 problem, when it last had occurred and how it had been 18 treated? 19 A. To Mr. Rich, no, and I do not recall 20 asking any questions to Valerie about it. 21 Q. In terms of 5(d), neither yes or no are 22 checked. Are you aware of termite, pest control or 23 reports of treatments for the property in the last five 24 years; is that correct? 25 A. Yes. Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 25 1 Q. But there is explanation that carpenter 2 bees attacked wood, spray around perimeter with 3 Spectracide, carpenter ant and termite killer every 4 month during summer. Was that on the document when you 5 initialed it on December 26, 2002? 6 A. Yes. I have to assume that it was 7 because it was here in front of me, yes. 8 Q. Despite what it says there in terms of 9 spraying during summer months, you asked no questions 11 A. I don't recall asking any questions to 12 Valerie, and I know I did not ask anything to Mr. Rich. 13 Q. How far did you go in school? 14 A. Actually, I graduated and then went to IT 15 Tech. 16 Q. Where did you graduate from high school? 17 A. Carlisle High School. 18 Q. Did you get some sort of certificate or 19 certification from IT Tech? 20 A. Yes. 21 Q. What was that? 22 A. In programming development and 23 operations. 24 Q. When did you graduate from high school? 25 A. '72. Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 excretion on the inside wall of the attic? A. I cannot recall because of those dates. I can't recall. Q. Had you, in that same time frame -- let me back up a second. I take it that you didn't observe carpenter bee excretion on the inside wall of the attic on any of the three visits to the home before you purchased it; correct? A. That is correct. Q Did you notice at any time before June 30, 2003 that woodpeckers had caused large holes completely through the wood siding? A. No. Q. How about with respect to exit holes, either in the interior wall of the master bedroom or sporadically throughout the exterior logs, had you observed that at any time prior to June 30th, 2003? A. May I answer that separately? Okay. The exterior, the answer would be no. Interior, okay, I saw markings, like, back on our master bedroom wall, but I thought it was just like a normal -- I don't know, like a normal something that could happen in a wood area, because you have a lot of character flaws in something like that. Q. Between the end of February of 2003 of Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 30 1 purchasing the house and June 30th, 2003, had you had 2 any pest control company come through? 3 A. No. Gilberts were the first one. 4 Q. And that was in July of 2003? 5 A. Yes. 6 Q. And on the disclosure statement under 7 5(d), it sa id that it should be sprayed every month 8 during the summer; is that correct? 9 A. It says that, yes. 10 Q. Is it safe to assume that at no time 11 prior to Ju ne 30th, 2003 had you ever seen any sort of 12 wood-boring insects, termites, anything like that 13 eating wood at the property? 14 A. I did not. 15 Q. Did your husband? 16 A. I cannot answer that. And I'll say here 17 today, if I would have seen a bug there on.that log, I 18 would not have known what it was, not until I saw the 19 sawdust. When I saw the sawdust, that was a different 20 story. 21 Q. Before June 30th, 2003, had you ever seen 22 sawdust? 23 A. No. 24 Q. Had you, yourself, ever observed any 25 either exit holes in the interior or the exterior of Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 31 1 the property as of June 30, 2003? 2 A. Not that I knew would have been actually 3 called exit holes. 4 Q. Valerie Clouse was the individual that 5 arranged to have HomeChek do the inspection; is that 6 correct? 7 A. Yes. 8 Q. Was Michael Kra ll the individual who did 9 the inspection for HomeChek on February 5, 2003? 11 not present. 12 MR. YOUNG: Britcher 3. 13 (Exhibit No. 3 was marked.) 14 BY MR. YOUNG: 15 Q. Before HomeChek came out and inspected 16 the property, did Valerie Clouse tell you that there 17 were different levels of inspection and different types 18 of inspections that you could have done? 19 A. I don't recall. 20 Q. You don't know whether she said to you 21 that you can have a complete structural inspection of 22 the house done? 23 A. I don't recall. 24 MR. YOUNG: 1'11 show you what was marked 25 as C to the complaint. We will mark it as Britcher 4. Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-566-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 32 1 2 3 4 5 6 7 8 9 (Exhibit No. 4 was marked.) BY MR. YOUNG: Q. Britcher 4 is an invoice for $90, $40 to have a water test done, and $50 to have a wood-destroying insect infestation inspection done. Is that what you were billed for? A. Yes. Q. Are you raising any issue here today with respect to the water test? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complaint. Q. Would you agree that the scope of the work done by HomeChek was limited to a water test and a wood-destroying insect infestation inspection; is that correct? A. Yes. Q. Going back to Britcher Number 3. Under HomeChek termite protection guarantee, home does not qualify for the HomeChek termite protection guarantee. Homes that cannot be safely treated for termites are not candidates for the HomeChek termite protection guarantee. It is the sole discretion of the HomeChek inspector to make the determination of whether or not the home is eligible for the termite protection Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 37 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Clouse about these discrepancies? A. It seems, like, to me that I wrote her an e-mail. That's all I can say, an e-mail going out to Valerie and then that's it. Q. Did you get a response from Valerie? A. I cannot recall if I did or not. Q. You would agree in this discrepancies, Exhibit Number 6, you indicate that since it was winter on February 5, 2003, no active insects would have been A. Please repeat your question. Q. Under discrepancy, under B, visible, you have, since it was winter, (2/5/03), no active insects would have been seen; is that correct? A. Yes. Q. And at no time when you were at the property prior to taking possession of the property in February of 2003, had you seen any active insects at the property; correct? A. Right. Q. And just before, you had testified that you had not had the property treated between taking possession of it in February of 2003 and June 30th, 2003; is that correct? A. Correct. Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866566-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 38 1 MR. YOUNG: I'll show what we are going 2 to market as Exhibit 7. 3 (Exhibit No. 7 was marked.) 4 BY MR. YOUNG: 5 Q. This is an e-mail from you to 6 loghomecrew.com seeking advice. It says Farner 7 Brothers? 8 A. Yes. 9 Q. Says last week we showed fresh sawdust on 10 the deck. Last week would have been sometime in early 11 July of 2003. Is that first time you saw fresh sawdust 12 on the deck? 13 A. Yes. 14 Q. And also notice a lot of holes in the 15 logs on different areas of the home. Is that the first 16 time that you had noticed that as well? 17 A. Yes. 18 Q_ You called The Bug Man; is that correct? 19 A. Yes. That was Gilbert's Pest Control or 20 whatever. 21 Q. Any time between March of 2003, when you 22 moved into the home, and July 15, 2003, had you ever 23 seen or heard a woodpecker? 24 A. Well, I can't recall off the top of my 25 head. If I have it in here -- Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 39 1 Q. Well, it says he, meaning The Bug Man, 2 noticed woodpecker holes that were probably after the 3 bees eggs. 4 A. Yes. 5 Q. Other holes that he notices from a 6 wood-boring worm. 7 A. Yes. 8 Q. He says that he cannot do anything due to 9 the stain that is on the house. My husband calls it 10 paint. 11 A. Yes. 12 Q. Have any of the professionals that have 13 been out and looked at the house ever explained to you 14 that it is not appropriate to paint the exterior of the 15 logs, in that it causes them to retain moisture? 16 A. They have -- the gentleman that ended up 17 having to do the restore, he told me that. 18 Q. And that was something that Mr. Rich had 19 done; correct? 20 A. Yes. 21 Q. You hadn't painted it between March and 22 July of 2003? 23 A. No. 24 Q. Who is the neighbor that says the 25 previous owners noticed holes a couple years ago and Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg . 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 41 1 Q. Did Valerie Clouse ever discuss with you 2 that you could pay to have an inspection done of the 3 septic system before purchasing it? 4 A. I don't recall that. 5 Q. In your mind, on February 5, 2003, did 6 you think that HomeChek was conducting a complete 7 structural inspection of your home? 8 A. No. 9 Q. Was it your understanding at that time 10 that they were simply looking for signs of active 11 wood-destroying insect infestation? 12 A. Yes, and may I add, I was thinking any 13 old damage, any current damage, anything that is -- any 14 bug that is affecting the wood, because like I told 15 her, if there is a problem, we are not purchasing that 16 home. 17 Q. If there was a problem known to you that 18 inappropriate paint had been applied to the outside of 19 the logs, which was causing rot to the inside of the 20 logs, would you have purchased the house? 21 If you knew on the day before you 22 purchased this property that Mr. Rich had painted the 23 outside, which was not correct and which was causing 24 the logs to rot, would you have purchased the house? 25 A. I don't think I can answer that because I Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 45 1 Q. Is this a document that you had prepared? 2 A. Yes. 3 Q. I have a feeling you are going to have a 4 document like this after you leave my deposition today, 5 of all my stupid questions. Inspector's verbal 6 statement. You weren't recording your conversation 7 with him; correct? 8 A. No. 9 Q. Basically, this is at some point after he 11 was going through? 12 A. No. 13 Q. How long after he left did you prepare 14 this document? 15 A. I remember this one. It was like 16 immediately. I just want to add that I was very upset, 17 and I immediately did my notes. 18 Q. You have under bullet 22, his concern was 19 the old house borers and not the carpenter bees. Do 20 you have any first-hand knowledge or knowledge from any 21 sort that there was evidence on February 5, 2003 of a 22 problem with carpenter bees? 23 A. No. 24 Q. In fact, on the seller's disclosure, Mr. 25 Rich was telling you that carpenter bees attacked the Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-566-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 46 1 wood in the summertime and you needed to treat with 2 Spectracide for that; correct? 3 A. Yes. 4 Q. You didn't do that in June or July of 5 2003; is that correct? 6 A. Correct. 7 Q. The inside bedroom, he confirmed house 8 borer exit ho les. Was there any way of knowing at that 9 point in time whether those house borer exit holes on 11 February of 2005? 12 A. Please repeat your question. 13 Q. He notes that there were confirmed house 14 borer exit holes inside the bedroom, so that would be 15 on the wood on the inside of the house in your bedroom. 16 Was there any way of telling at that point in time 17 whether those holes were present at the time of the 18 February 5, 2003 inspection? 19 A. Actually, I sort of recall, it was Steve 20 or another gentleman there with him saying old, these 21 old holes, okay, all right, so that is all I can answer 22 that. 23 Q. In terms of woodpeckers, that is not part 24 of a wood-destroying insect inspection; correct? 25 A. Correct. Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 47 1 Q. I grew up in the city of Philadelphia, 2 and we just had pigeons and even I know that a 3 woodpecker is not an insect; correct? 4 A. Right. 5 Q. Did he discuss with you at that time that 6 the rot in the exterior of the logs was due to the 7 paint that had been applied to them? 8 A. I do not recall. 9 Q. You have -- if you look -- n 77'? , ..I..._sdon_'_t_....- eca1.l..__?r tb out __.1?o1LlrL y. Fb Pr.a _.. _. . __. .. 11 Q. The sixth or seventh bullet -- the 12 seventh one says the rotten logs are due to paint being 13 on the logs . Water has gathered and caused rot; is 14 that correc t? 15 A. Correct. 16 Q. Have you received any information from 17 any other s ource confirming that? 18 A. Other than the gentleman that did the 19 restore. 20 . Q. So a professional other than Mr. Johnson 21 told you th at the rot was caused by the paint; correct? 22 Mr. Johnson told you that on August 8, 2003? 23 A. Right. 24 Q. I'm not trying to trick you. We will 25 have a document on this in a little bit. But you then Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 48 1 retained some other professional to do the work? 2 A. Yes. 3 Q. That individual told you that because of 4 the paint, there was rot in the logs themselves? 5 A. Yes. He actually said about the paint 6 can cause - - abou t it retaining moisture and something 7 about these bugs goes in and makes these holes, all 8 right, and it all works together. 9 Q. Do y ou know of any exterior -- any exit 11 rot in the log itself? 12 A. Yes. There was plenty of rot in the 13 logs. 14 Q. That's not my question. We went over the 15 fact that the paint on the outside causes a problem 16 with moist ure, which causes the logs to rot. That is 17 something more than one professional told you; correct? 18 A. Yes. 19 Q. What I'm looking for is, specifically, do 20 you have a picture or a mental picture even, that there 21 is an exte rior bore hole, there is an exit hole from an 22 old borer on the exterior of a log where that log 23 itself was rotted? 24 A. We would have pictures of that, yes. 25 Q. That would be in the pictures that you Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 NETWORK DEPOSITION SERVICES Transcript of Joanne Britcher 49 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gave to your attorney? A. Yes. Q. Inspectors offered resolution. He said he was going to send a pest control company out and spray for the wood-borers; is that correct? A. Yes. Q. But he wasn't going to pay for any type of restoration of the logs because that was caused by the paint and not the insects; is that correct? _....Ar....._ -Y s-? __-_He___says---n.ot - that--it ---i .--not caused by insects, that's what he said. Q. Under Joanne's verbal, I told him probably 10 times that if his inspector would have accurately stated these findings, this home would not have been bought by us and we would not be in this situation today. But you were already on notice before the inspection that there was a problem with wood-destroying insects based upon the disclosure you received and initialed acknowledging reading it on December 26, 2002; Exhibit Number 1; correct? A. Right. Yes. Q. But you are on notice the day after Christmas of 2002 that there was a problem, you went ahead and purchased the property anyway, even though Johnstown - Erie - Pittsburgh - Greensburg - Harrisburg 866-565-1929 SELLER'S PROPERTY. DISCLOSURE STATEMENT 128 Address fg? S, I'!j ?t is iZ D CSR u??f Pte' ! 7o J9 1 Property 1 F 2 2 " ' ' ..' ' a Seller - • 4 A Seller must disclose to a buyer all known material defects about property being sold that are not readily observable. This diselosnre 3 4 6 statement is designed to assist Seiler in, coinplying with disclosure requirements and to assist Buyer in evaluating the property being 5 6 C0nddiM'A- 6 7 This Statement discloses Seller's knowledge of the condition of the property as of the date signed by Seller and is not a substitute for 7 s any inspections or warranties that Buyer may wish to obtain.. 'Tins Statement is not a warranty of any land by Seller or a warranty or a a represanwtion by any listing, real estate broker, any selling real estate broker, or then' licensees. Buyer is encouraged to address cone ms g In about the conditions of the property that may not be included is this Statement. Ibis Statement does not relieve Seller of the obligationp 11 to disclose a material defect that may not be addressed on this form. 11 1z A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of the 12 13 residential real property or that involves an tmreasonable risk to people on the land. 13 14 15 1 • SELLER'S EXPERTISE Seller does not possess expertise in contracting, engineering, architectare, or other areas related to the 14 15 16 construction and conditions of the property and its improvements, 57CCept as €oIlOWS: 16 17 is 2. OCCUPANCY (a) Do you, Seller; cuaeatty occupy tlns property? VIVes • ? No 17 16 is If "no," when did yon last occupy the property? *,< 19 zs o (b) Have there been any pets living in the house or-other structures dating your ownership? ? Yes 20 21 If "yes," describe: 21 21 22 . zs 24 3. ROOF Date roof mst&Ued: (? a Documented? 13 Yes Cl No ? Unknown ?? ,,X 1 23 24 • • ? $?. _ L'J XCS ? NO aj=d our lkSCIIIC?__oL. n k L3 U I 25 2 26 now n No (c) If "yes," were the existing shingles removed? ? Yes ? N 6 27 27 o ?? (d) Has. the roof ever leaked during your ownership? [3 Yes n (e) Do you know of any problems with the roof, gutters or downspouts? ? Yes . lJ'No 25 29 Explain any "yes" answers that you give in this section: itl6 'p??r1t' -A 29 3a 30 31 4. BASEMENTS AND CRAWL SPACES (Complete only if pticable) 31 32 (a) Does the property have a sump pump? ' ? Yes o 0 Unknown 913 32 33 o (b) Are you aware of any water leakage, accumulation, or dampacm within the basement or crawl space? ? Yes 33 34 If "yes," describe in detati: 34 35 ss 3B (c) Do you know f any repairs or other attempts to control any water or dampness problem in the basement or crawl space? 36 37 ? Yes ll 0 37 38 N "yes," describe the location, extent, date, and naaae of the person who did the repair or control effort: 36 39 32 4a 5. TERMTTESIWOOD-DESTROYING INSECTS, DRTItO% PESTS 40 41 (a) An you aware of any termites/wood-destroying insects, dryrot, or pests affecting the property? Yes ? No, ? N 41 42 o (b) Are you aware of any damage to the property caused by ramizes/weod-destroying insects, or pests? es ? 42 43 o (c) Is your property currently under contract by a licensed post control company? E3 Yes ' 43 4a treatmeats for the property in the last five years? ? Yes 13 No (d) Are you aware of any tetmitelpest control reports or 44 45 Explain any-"yes" answers that you give in this section, including the name 1219Y ant der, if licable: __ i I? fi?i s/ fiXOW4 ?ZX 45 4fi 46 47 XMr^ . 6. STRUCTURAL 1TE*s 47 48 (a) Are yon aware of any past or present water leairage in the house or other structures? ? Yves ` 4 ' 49 .ot11Ci Are you aware of any past or movement, shifting, deterioration, or other problems with will4 foimdatt,•_'oQs*:1 • 49 50 l ? Yes o tural ? 51 (c) Are you aaxi of 'my past or present problems with driveways, walkways. patios, or retaining walls w 51 62 ? Yes "ID sI1C 814` a[1VLf o? stem (EIF$) ?7nLShII] S l tid l E I " 63 1 g y a g nSn i ffi xbenor "y y : • (d) IS your proP?' ConAracted wlt ; `'*?. , ,..::.. • r 'h ?` : M 64 54 :. . o D UhImown ? Yes ! 5s If "des," describe any known problems 56 57 5 I :.?} 58 Page 1 of 4 _ i ?c'`_ r ;?•:( :sa ?of REAt? r.rrr.,rww?rwwgr.r . coryuGgr tt &XH MIT i9 (e) Are there any defects m flooring, including stains? ? Yes Ml*?ko .13 Unknown. .o if "'yes,„ explain: 59 • Ba n Explain any "yes" answers that yv- give in this section. When explaining reports w control or repair; please describe the Iota- tion and extent of the problem, and the date and person by whom the work was done, if known: sz 13 • is 7. ADDMON&REMODELS Have you made any additions, structural changes, or other alterations toile property? ? Yes CFo us If "yes,„ describe: is s as 8. WATER AND SEWAGE < 67 sa . 39 (a) What is the source of your drinking water? ? Public Water Site Water (Well on Property) to ? Commumty Water ? None ? Other (explain) s9 rt (b) If your drinking water source is not public: n When was your water last tested? Whjt was the result of the test? tt 71 73 Is the pumping system in working order? es ? No 72 74 If "no," explain: 73 75 (c) Do you have a softener, filter, or other purification system? es ? No 74 76 If "yes," is the system ? Leased L1Owned 73 77 (d) What is the type of sewage system? ? Public Sewer B"I dMdual On-lot Sewage Disposal System 711 n To ? Individual On-lot Sewage Disposal ,,System m Proximity to Well ? Commumty Sewage Disposal System ? T P i E i 78 79 ea-acre erm xempt t on olding Tank None ? None AvailableMermit Limitations in Effect 79 so If Individual On-lot, what type? ? Cesspool M Drainfieid ? Unknown ? Other (specify): as III Is there a septic tank on the Property? i?Yes ? No ? Unknown ail 82 If "yes," what is the type of tank? ? MetaVsteel ? Cement/corimete 1] Fiberglass 13'616lanown az 83 Q Oche' (specify): 93 64 Other type of sewage system (explain): 34 as as _. so ..__. ._. a was oa-site sewage dzsposaTsysteai Last serviced? V _.. s a7 . (f) Is there a sewage pump? D Yes ? No 97 H If "yes," is it in woddng order`? ? Yes ? No ss as ? (g) Is either the water or sewage system shared.? [3 Yes QP<6 as 4a If "yes," explain: 91 (h) Are you aware of any leaks, backups, or other problems relating to any of the plumbing, water, and sewage-related items? 9t 92 ? Yes 1;YNo 52' 93 If "yes," explain: 0 94 95 9. PLUMBING SYSTEM / (a) T e of lumbi 1t?G ? G l i d ? L d ? VC 94 yp p ng: pper van a ze ea P ? Unknown s• 95 ? Other (explain): 86 97 (b) Are you aware of any problems with any of your plumbing fi=u5s (e.g., including but not limited to: kitchen, laundry, or bath- 97 f t b ' 95 ix ures; wet room ars; hot water heater, etc.)? C3 Yes R No 9a 99 If "yes," explain: 94 in 10. HEATING AND AIR CONDMO G (a) T of i i di i t 1er0 tin ype a r con t on ng: P entral Electric D Central Gas ? Wall ? None sot ID2 Number of window units included m sale Location tat 103 (b) List any areas of the house that are not air conditioned: 103 104 104 Ins (c) Type of heating: ectdc O Fuel Oil ? Natural Gas ? Propane'(On site). 105 IDS Are there wood or coal burning stoves? ? Yes Gkfo If "yes," how many? Are they g? D Yes 13 No in Are th fi l ? W"If " " / E 107 ere any rep aces es 13 No If yes, how may? Axe they working? rYes ? No 1a7 tea Other types of heating systems (explain).- in las - -?•. Ila (d) Are there any chimneys? es ? No If "yes," how many? / Are they working? es "?,;L]=No, tc , r t silo •. Itu When were they last cleaned? 11. 112 (e) list any areas of the house that are not heated: 113 -•,w ..;;.u.•'?' . 114 (f) Type of water healing: MItiectric ? Gas ? Solar [3 Other: ~?t14' 115 (g) Are you aware of any underground fuel tanks on the properly? ? Yes " H ' na H yes, descnbe. ...ixr.<w `*'°+e k + ty 7 If tanks are not owned, explain: : r :_ . -?: ??.??*;?i?l•?'%F-t.-; . fix: 119 (h) Are you aware of an blems with an item in this section? ? Yes Vic` • -. 119 If " " explain . ?. yes, 120 Page 2 of 4 Se11er'sTuiitiaLs? :.t2a . 1. ELECTRICAL, SYSTEM Are you aware of any problems or repairs needed in the electrical system? ? Yes . •..? ; 121" 12z If yes, explain: . ' i2Y iza 12. OTHER EQTpMENTAND.API NCES INCLUDED IN SALE (Complete if applicable) :; •.'°`c ; ..:::_ : _ 1Y3 124 - Equipment and'appIiances ultimately included in the sate will be determincd:ty negolZopn and:.aecording .to the.tetnnsf the:t2a 125.. AgreenVa of Sale `. 126 (a.) Wtlectdc Garage Door Opener • No. of Tmmnimers f!' 12' IV (b) ? Smoke Dgtecwrs How many? f Location gAUAW)O 127. 128 (c) ? Security Alarm System ? Owned ? Leased ? Lease Information 128 126 (d) ? Lawn Sprinkler` No. ? Automatic Timer iza 129 136 (e) ? Swanning-Pool .: ? Pool Heater ? Sp4iot Tub 139 131 Poo pa Equipment (list): jai 132 M erato'r aKficrowave Oven MINshwasher ? Trash Compactor ? Garbage Disposal ' 132 IM (9) usher . 134 (h) E3 ?rC°d° 1 I.34 35 135 C} MCeding fans . No. y Location FA. A41 J-Y - l?l OD ?[ /? C1rC V 136 U) [3 Other: 13t 13H 137 Are any items in this section in need of repair or replacement? ? -Yes'- ? -No • • ? Unknown - .137 138 If "yes,", explAn= 138 139 13. LAND (SOILS; DgAINAGE, AND BOUNDARIES) 139 140 (a) Axe you aware of any fM or expansive sod on the property? ? Yes W14,0 149 141 (b) Are you aware of any sliding, settling, earth movement, upheaval, subsidence, or earth stabs7ity problems that have occurred on 141 142. or a$ea the property"! ? Yes 1$io 142 143 Note to Buyer: The property may be subject to mine subsidence damage. Maps of the counties and mines where mine subsidence 143 144 damage may ocero• and mine subsidence insurance are available through: Department of Environmental Protection, Mme Subsi- 141 145 .dence Insurance Find, 3913 Washington Road, McMurray, PA 15317 (800) 912-1678 (within Pennsylvania) or (724) 541-710014s 145 (Outside Pennsylvania). 146 .. -yo a au C7tlStirtg t "pr -147 Dpored'II11DIIIg;-StIip=IIiRllIIg+ OISIIy OIl1l7'C7CCSV8tIOIIS thSt'IDig?lt 8$eCtt11L4 148 (3 Yes No 148 149 (d) To your knowledge, is this property, or part of it, located in a flood zone or wetlands area? ? Yesi 149 159 (e) Do you ]mow of any past or present drainage or flooding problems affecting the property? ? Yes L9'[?To 156 151 (f) Do you know of any encroachments, boundary line disputes, or easements? ? Yes , arto 151 152 Note to Buyer. Most properties have easements running across them for utility services and other reasons. In many cases, the 1q2 153 easements do not restrict the ordinary use of the property, and Seller may not be readity aware .O? Am Buyers may wish to w 154 determine the emstence of easements and restrictions by examining the property and ordering an Abstract of Ttle or searching 1s4 155 the records in the Office of the Recorder of Deeds for the county before entering into an Agreement of Sale. im ise (g) Are you aware of any shared or common areas (e.g., driveways, bridges, docks, walls, etc.) or manntcnance ate? 156 157 ? Yes "o 167 158 Explain any "yes" answers that you give in this section: 158 159 15g t6o 14. HAZARDOUS SUBSTANCES 169 181 (a) Are you aware of any underground tanks (other than fuel tanks) or hazardous substances present on the property (structure or soil) 1 si 182 such as, but?A.ot limited to, asbestos, Polychlorinated biphenyls (PCBs), Uredarmaldehyde Foam Insulation (UFFL), etc.? 162 163 ? Yes No Lei o / 163 184 (b) To your knowledge, has the property been tested for any hazardous substances? 13 Yes Cal No // ire 165 (c) Do you know of any other environmental concerns that might impact upon the property? ? Yes W No 165- 165 Explain any "yes" answers that you give in this section: 166 167 157 its (d) Do you know of any tests for radon gas that have been performed in any buildings on the property? :;••L ? :Yes... o •... W 169 If "yes," list date, type, and results of all tests below • 189 176 DATE Tm op Tm 12ES urns (picoauxfewliter or wanking levels) t71 172_+x' buy'::`' .•' ' 172 173 ' •:r?` ^'fi:r-a+??'r•?'.". ``o.s•''e; .? s :. • , ,: ., :y 174 (e) Are you aware of any radon removal system on the property? • ? Yes •No ?: .%,:?' =•? - ?`'t•c.." ?. ?`'"'?'-?;??'?:g7! 175 If "yes," list date iastalted and type of system, and whethrx it is is wosldng orrice' below:'' - - ;? c?,>x'?; ?w,:?;tc• ?176 DAZE IrtsrE,. Lw T n oe: Symmm •PROVmM 177 178 ??.'??ti`a a c'178 179 r:;•, t c• x1711 188 tat ^-:c A'•:.• `'? Jr • ?: ^4 3i1 Page 3of4 - .S`eliex)*Lals• N:ies J 1 1-1 -- r^?r - v ??••??+??« u, v. u ..vwuu6uvn u9.5au, uciurc 'y/5, you Must alsetose any Knowleage of lea?ed paint on the 183 Q4 property. Are you aware of any lead-based paint or lead-based paint hazards on the property? E3 Yes o as if "yes," explain how you know of it, where it is, and the condition of those lead-based paint surfaces: 195 130 195 Ia7 (g) If property was constructed, or if construction began, before 1978, you must disclose any reports or records of lead-based paint 187 188 or lead-based paint hazards on the ro err . Axe 18 p p y you aware of any reports or records regarding lead-based paint or lead-based 189 B 139 paint htlzards on the property? ? Yes No 9o if "ye;," list all available reports and records: 199 191 190 0 92 15. CONDOMINIUMS AND OTHER HOMEOWNER ASSOCIATIONS (Complete only if applicable) 192 93 Type: C3 Condominium ? Cooperative 11 Homeowner Association or Planned Community 192 e4 Other 103 194 95 Notice regarding Condominiums, Cooperatives, and Planned Communities; According to Section 3407 of the Uniform Condo- 1 95 ea minium Act (68 Pa. C.S. §3407 (relating to resale of units) and 68 Pa. C.S. 94409 (relating to resale of cooperative interests)) and 196 e7 Section 5407 of the Uniform Planned Community Act [68 Pa. C.S. §5407 (relating to resale of units)], a buyer of a resale unit in a t97 se condominium, cooperative, or planned community must receive a copy of the declaration (other than the plats and plans), the by- 198 Be laws, the rules or regulations, and a certificate of resale issued by the association in the condominium,' cooperative, or planned com_ 199 00 munity. The buyer will have the option of canceling the agreement with the return of all deposit monies until the certificate has been 2110 Ai provided to the buyer and for five days thereafter or until conveyance, whichever occurs first. oz 16. MISCELLANEOUS 201 13 (a) Are you awar$ of any historic preservation restriction or ordinance or archeological designation associated with the ? 293 14 ? Yes 7Z Property? 203 2114 is (b) Are you aware of any existing or threatened legal action affecting the property? ? Yes e -.No // 205 sa (c) Do you know of any violations of federal, state, or local laws or regulations relating to this property? El Yes C_No 2118, (d) Are you aware of any public improvement, condominium or homeowner association assessments against the pro perry that remain 211 to unpaid or of any violations of zoning, housing, building, safety or fire ordinances that remain uncorrected? ? Yes Lilo tae 19 (e) Are you aware of any judgmeat, encumbrance, lien for exam __ . _.- ____....- _-...__-_...._..__....-..____._._...___..._.._._._ .?..._...-.. -. ?.___.-_.. _---.5.._..-. _._.-p??c?--?t..ot ?quuy_-IQ.an) oYerdue,,.pa}rmeat oa_*.Snppostabli.,.-289- 0 gation, or other debt against this property that cannot be satisfied by the proceeds of this sale? Cp Yes Er No I 210 Are you aware of any m4?so? including a defect in title, that would prevent you from giving a warranty deed or conveying tide to the 211 2 property? ? Yes P NO <t2 3 g) Are you aw?°f any material defects to the property, dwelling, or fixtures which are not disclosed elsewhere on this form? 213 4 C2 Yes CW'No 5 A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of 215 3 the residential real property or that involves an unreasonable risk to people on the land 216 7 Explain any "yes" answers that you give in this section: tt l 218 l The undersigned Seller represents that the information set forth in this disclosure statement is accurate and complete to the best 22:o t of Seller's knowledge. Seller hereby authorizes the Listing Broker to provide this Information to prospective buyers of the prop- 221 erty and to other real estate licensees. SELLER ALONE IS RESPONSIBLE FOR THE ACCURACY OF THE INFORMATION 222 j CONTAINED IN THIS STATEMENT. Seller shall cause Buyer to be notified in writing of any information supplied on this form 223 which is rendere inaccurate by a change in the condition of the property following completion of this form. 224 WTI'NE 225 WITNESS SELLER J"Mw4l DATE .?-?f?-e! 226 WITS SELLER DATE 227 SELLER DATE 228 _ 229 EXECUTOR, ADMINISTRATOR. TRUSTEE SIGNATURE BLOCK 230 According to the provisions of the "Real Estate Seller Disclosure Act," the undersigned executor, administrator or trustee is not required to fill out a Setter's Property 231 Disclosure Statement The executor, administrator or trustee, must. however, disclose any known material defect(s) of the property. 2232 DATE 233 234 RECEIPT AND ACKNOWLEDGEMENT BY BUYER ? The undersigned Buyer acknowledges receipt of this Disclosure Statement. Buyer acknowledges that this Statement Is not a warrarity•and that, unless 235 stated otherwise in the sales contract, Buyer is purchasing this property In its present condition. It is Bu 237 to the condition of the property. Buyer may request that the pro 7er's ?' sed or the y perty he inspected, at Roper's expense and by qualified professionnalsi1% , fo determine e the con dition of the structure or its components. 239 WITNESS BUYER .240 WITNESS _ ?; ]yATE"':Zrot WITNESS v ?B(FYER *,:?`ATE? zre BUYER .DA'T'E 243 t Cr ?' Page 4 of 4 244 Mood Destroying Insect Infestation Inspection Report 'his is not a structuraf damage report This for- -lay not be altered. Section 1. General Information Act '849 k503 pany's Busines! No. FHAIVA Case No.(if any): :nspection Company, Address, & Phone BU054V HOMECHEK, 1529 Rodney Road, York, PA 17404-97'16 erty Address:589 S. Middliesex Road , Carlisle , PA 17013 :nspectoPs Name: cture(s) Inspected: Mike Krall - Ranch - Section 11. inspection Findings This report is indicative of the Condition of the subject structure(s) on the date of the inspection only and h NOT to be construed as an express or Implied warranty or guarantee against latent, concealed, or future infestation or defects. Any such warranty or service agreeent to provide future treatment or inspections may be provided as a separate attachment and only if indicated in Section IV. See Section DC on side 2 for important Information. Based on a care visual inspection of the readily accessible areas of the structure(s) inspected: ® a. No Visible evidence of a wood destroying insect infestation was observed. ? b. Visible evidence of a wood destroying insect Infestation was observed as follows. ? Uve insects; (description & location): . ? Insect parts, frass, exit holes, or shelter tubes; (description & location): ? Damage from wood destroying insects was noted In the following area(s): Regarding visible evidence of wood destroying insects: The inspector may find wood which has been damaged by Insects. Any damage noted should be considered only as evidence of current or previous infestation of wood destroying insects. If box b is checked above:, It should be understood that some degree of damage, Including hidden damage, may be present The inspector's training and experience do not qualify the inspector in damage evalutation or any other building contraction technology and/or repair. Upon receipt of this report, the Seller c the Seller's Agent shall notify the Buyer that any damage should be examined by a qualified individual to determine the need for repair. Any visible evidence observed above appears: ? Active; treatment recommended at this time (Note: FHA and VA require treatment for all active infestations) ? Inactive; no treatment recommended at•this time ? Activity and need for treatment cannot be determined without further investigation. Reason: In many cases, based upon visible signs of infestation by wood destroying insects, it is not possible without benefit of subsequent inspections and evaluations over a period of time to ascertain whether an infestation Is active or inactive. If a warranty or service agreement is in effect, the company which issued the warranty or service agreement should be contacted. If no warranty or service agreement Is In effect, the inspection company or another company may provide treatment, if requested and permitted by regulations, for an additional fee. This company can give no assurances with regard to work that may have been previously performed by -other companies. The company which treated the property should be contacted by the Buyer for treatment and warranty Information. Section 111. Treatment was/is scheduled to be performed by the inspecting company: 29 NO U YES Date:' Treatment Description: Section IV. Attachments The following listed attachments are integral parts of this inspection report: Section V. Obstructions & Inaccessible Areas The following areas of the structure(s) were obstructed or inaccessibe (see item 4 on side 2): 10.11asement 1,3,4,5,6,7,8,9 ® Crawl Space 5 ® Main Level 1,3,4,6,7,8,9 ? Attic ® Garage 1,3,6,7 ® Exterior 17 C] Porch ? Addition D Other e inspector may write out inaccessible areas or e the foil(rMng key: . fixed ceilings 12, only visual access . suspended calling • 13. no access beneath . fixed wall covering 14, cluttered condition floor covering 15. standing water insulation 16. dense vegetation . cabinets or shelving 17. exterior coverings stored Items 18. window well covers furnishings 19. wood pile appliances 20. snow 0. no access or entry 21. unsafe conditions Section VI Additional Comments (may be continued on side 2): Section V11. inspector's Signature Neither 1 nor the company for which I am acting have had, presently have, or contemplate having any interest in the property. /?hCC/CcrQ // 00 Certification or Registration No: (if applicable) I Date of Section Vlll. Statement of Buyer & Seller This report is integral to, and a necessary part of the inspecting company's full disclosure as to the scope and inherent limitations of the Inspection and report of findings. It is most important that the interested parties acknowledge this advice. The Seiler hereto agrees that all known property history Information regarding WDI In 7 da on, and treatment history has been disclosed to the Buyer. Signature of 41 x ? n k F -bb??C4:J ?. (if refbnancing ate: The undersigned hereby acknowledges receipt of a copy of this report L 2/5103 This report must be signed by the Buyer and Seller as applicable. A legible copy of this signature page must be returned to the inspecting company the person ordering this Inspection. See section IX on side 2 regarding the scope & lirnitatlops of the inspection & this report. Forms VA 26-8950 and HUD-92053 are obsolete after 9130195. Submit an Original and two c6pies. Side 1 form NPCA-1 Co 1995 National Pest Control Association. All Rights Reserved. No Reproduction of this forth is permitted without the EXHIBIT 8=XH161T r'Ar' James Z. & Joanne F. Britcher 589 SOwh Middlesex Road Carlisle, Pemrnyh+aWa 17013 (717) 240-0701 Mr. Michael Krall Homechek 1529 Rodney Rd_ York, Pa 17404-9716 July 25, 2003 Dear Mr. Krall.; This letter is to inform you of as issue concerning our log home that was inspected by . HomeChek on February P, 2003, account 47809. You will note that the Wood Destroying Insect Infestation Inspection Report was signed stating that no visible signs were evident After moving in, we noticed visible signs of wood boring insects both old and new. We called m a local pest professional and, m their expert opinion, the insect infestation should have been noticed by the professional inspector- We believe that accurate results wore not stated in the February 5ffi, 2003 report It will be necessary to have proper restoration work done to resolve this problem before further structural damage occurs. We have, therefore, obtained an estimate of cost. Please let us know what arrangement your company will make to handle the cost of this restoration. Very truly, James & Joanne Britcher 781WHIIINIT . CHOMECHE)LI " e Whole House Termite Septic • Water • Radon Lead Based Paint ;august 12, 2003 James & Joanne Britcher 599, South Middlesex Road Carlisle. ?A 17013 Re: 589 South Middlesex Road, Carlisle; PA 17013 Dear kir. & Mrs. Britcher: . `I7iank you for allowing me to come out to your home on August &, 2003 to reinstx-ct it 1br wood destroying: insects. Upon completion of my inspection I found evidence or Old house borer on th6 outside of the home and in the rear front bedroom of the home. _."_ ._, _ _, __._. _...".__.._-.-- .{fie pereenea c of the otd h l rer exft tusl iYt fs e: "Tr-U-d that appeared to have activity in them. . Our original inspection dated February 5, 2003 did not indicate any activity of'N-ow destroying insects in the home. Due to this oversight by our inspector, Homechck. Inc. is proposing to treat the Old house borers for you at no charge. We are proposing to contract Tele-Pest 'rcnnite and Pest Control Inc., a PA Dept. of Agriculture certified pest control operator. to treat your home for Old house borers. Tcle- Pest will, be contracted thru Homechek, Inc. to drill and treat with impel rods to al) active :trams. In i dditioni all offvsrbld house borer holes will be treated --Kith an injector.:\II work completed will be placed under a free five year service warranty- Homechek, Inc. loops to resolve your issue with Old hovsc borers as soon as possible. Please contact our office at 1-800-661-0971 to set up a couvenient time for you to complete the service. Rccpcctfully yours Johnson r? dent YORK. PA NIECHANiCSRURG, PA LANKA, FA. PA. Tc4- (`'t?1 7cA-t9:o TO: (717) 766-4345 Tel: t7I7) 5?3•I??1 Fit: {71?1 764 64,1812 Fay: (SSS) 393-23I0 Fos, 1';si 2 341-2?t20 tM1011 GU EXHIBIT "B" VERIFICATION 1, Steve Johnson, am the General Manager of Homechek, Inc. In February 2003, Homechek, Inc., was retained by James and Joanne Britcher to perform a limited wood destroying insect infestation inspection of a residence located at 589 South Middlesex Road, Carlisle, PA, which they were considering purchasing from Frank Rich. The inspection requested by Mr. and Mrs. Britcher is limited in nature to visibly inspecting the property to detect any signs of a wood destroying insect infestation. It is important to note that a wood destroying insect inspection is not a structural home inspection. On February 5, 2003, Mike Krall, a former employee of Homechek, Inc., performed the requested inspection of the residence. At that time, Mr. Krall completed an inspection report which reflected that there was no visible evidence of a wood destroying insect infestation observed. On or about July 25, 2003, Mr. and Mrs. Britcher contacted Homecheck, Inc. to advise of a concern regarding the inspection that had been performed on February 5, 2003. More specifically, Mr. and Mrs. Britcher advised that they had noticed visible signs of wood boring insects at the property. Thereafter, on or about August 8, 2003, I met with Mrs. Britcher to review her concerns. At that time, I noticed inactive holes from old house borers. I also noticed deterioration to the logs in several areas on the outside of the home caused from moisture penetration as well as damage from woodpeckers. At that time, I advised Mrs. Britcher that the old house borer holes were inactive and that old house borers do not typically re-infest a property. However, as Mrs. Britcher was concerned about these inactive holes, I offered to arrange to have the inactive holes from the old house borers treated and remedied. I also discussed with Mrs. Britcher at that time that the deterioration and rotting of the logs was due to penetration of moisture. The moisture was able to work its way under the paint that had been applied to the exterior of the home. The limited wood destroying insect infestation inspection requested by Mr. and Mrs. Britcher did not include any inspection of or notation regarding the condition of the logs of the home. Moreover, the deterioration and rotting of the wood was not in any way caused by the old house borers or the holes left by the old house borers. Rather, the holes from the old house borers were located only on the left side of the house. The rotted and deteriorated wood was located on other walls of the house which did not have any signs of old house borer activity. As it pertains to the damage caused by the woodpeckers, that also would not be part of a limited wood destroying insect infestation inspection as woodpeckers are not an insect. Additionally, the damage caused by the woodpeckers would not be related to the presence of the old house borers or the old house borer holes. Following my meeting with Mrs. Britcher, I sent a letter to her attention dated August 12, 2003, proposing to contract Tele-Pest Termite and Pest Control, Inc. to treat her home for old house borers. This offer was solely an effort to appease Mrs. Britcher regarding her concerns about the old house borer holes. There was no evidence to demonstrate that Mr. Krall had missed, during his February 5, 2003 inspection, any evidence of an active old house borer infestation at that time. I did not offer, at any tinve, to undertake any repairs related to f1hr. ro-,"g and deteriora ion of the logs and/or the damage caused by the woodpeckers as those issues are unrelated to the old :house borers and/or the old house borer holes, and are outside the scope of the limited wood destroying insect infestation inspection requested by Mr. and Mrs. Britcher. This statement and verification is made subject to the penalties of 18 Pa. C.S. Section 4%4, relating to unsworn falsification Date: b CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law firm of Lavery Faherty Patterson, do hereby certify that on this 315' day of October, 2011, 1 served a true and correct copy of the foregoing Appendix of Exhibits in Support of Motion for Summary Judgment via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 Meg?nt RerYno Leg I ecretary to Frank J. Lavery, Jr., Esquire and Devon M. Jacob, Esquire 3 FILED-OFFICE CF THE HINT C"u,M 3EF" Frank J. Lavery, Jr., Esquire Devon M. Jacob, Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 Atty No. PA89182 flaveryiaDlaverylaw.com diacobelaverylaw.com JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs V. HOMECHECK, INC. Defendant Attys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 05-1557 CIVIL TERM JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant, Homecheck, Inc., hereby submits this Motion for Summary Judgment for this Honorable Court's consideration and in support thereof avers as follows: 1. Plaintiffs, James Britcher and Joanne Britcher, have filed the instant action against Defendant, Homecheck, Inc., arising from a wood destroying insect infestation inspection performed by Michael Krall, an inspector previously employed by Defendant, on February 5, 2003 of a residence located at 589 Middlesex Road, Carlisle, PA 17013 which Plaintiffs were considering purchasing from Frank Rich. 2. The Amended Complaint sounds in breach of contract, negligent inspection, and detrimental reliance. 3. Specifically, Plaintiffs were considering purchasing a log home from Frank Rich in February, 2003. 4. In conjunction with that purchase, Plaintiffs retained Homecheck to conduct a limited wood destroying insect infestation inspection. 5. Mrs. Britcher confirmed that she was aware that Homecheck was only inspecting for signs of infestation by wood destroying insects. (Deposition of Joanne Britcher, pp. 32, 41) 6. That inspection was performed by Michael Krall, a former employee of Homecheck, on February 5, 2003. 7. At that time, Mr. Krall prepared a wood destroying insect infestation report, which indicated that no visible evidence of a wood destroying insect infestation was observed. (Joanne Britcher depo., Ex. 5) 8. Thereafter, Plaintiffs purchased the home on or about February 28, 2003. (Am. Comp., 19) 9. Prior to Plaintiffs' purchase of the residence, they were advised that the residence had a history of wood destroying insects and pests and that the property had r damage from such wood destroying insects and pests. (Deposition of Joanne Britcher, pp. 21-25, Ex. B) 10. Prior to the purchase of the property, Plaintiffs were also advised by the seller that they should spray around the parameter of the residence with insecticide every month during the summer. (Deposition of Joanne Britcher, pp. 21-25, Ex. B) 2 11. Despite this knowledge, Plaintiffs did not spray for any wood destroying insects between their purchase of the home in February, 2003 and when the sawdust was first noticed in July, 2003. (Deposition of Joanne Britcher, pp. 29, 30) 12. Mrs. Britcher confirmed that prior to June 30, 2003, she had not seen any evidence of and active infestation of the residence. (Deposition of Joanne Britcher, p. 30) 13. On or about July 9, 2003, Plaintiffs allegedly noticed saw dust around their home. (Am. Comp., 110) 14. Plaintiffs allege that upon further inspection, they located woodpecker holes on the north eave of the home, carpenter bees in the attic and holes made by old house wood borers. (Am. Comp., ¶11) 15. Thereafter, on July 25, 2003, Plaintiffs contacted Defendant Homecheck to advise of these findings. (Deposition transcript of Joanne Britcher, Ex. 8) On August 8, 2003, Steve Johnson, President of Homecheck, met with Mrs. Britcher to review her concerns. 16. At that meeting, Mr. Johnson and Mrs. Britcher walked around the exterior of the residence at which point Mr. Johnson noticed inactive holes from old house borers as well as deterioration to logs in several areas on the outside of the home caused by moisture penetration and damage from woodpeckers. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 17. Mr. Johnson advised Mrs. Britcher that the old house borer holes were inactive and that old house borers do not typically reinfest a property. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 3 18. As Mrs. Britcher was concerned about the inactive holes, Mr. Johnson offered to arrange to have the inactive holes from the old house borers treated and remedied even though there was no evidence that Mr. Kral[ had missed any signs of an active infestation during his inspection. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B"; Deposition of Joanne Britcher, Ex. 10) 19. At that time, Mr. Johnson also discussed with Mrs. Britcher that the deterioration and rotting of the logs was due to penetration of moisture caused the paint that had been applied to the exterior of the home. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 20. Mrs. Britcher confirmed that she was advised by at least one independent expert that the rotting and deterioration of the logs of the home was due to moisture penetration caused by the paint that had been applied to the exterior of the home by the prior owner. (Deposition of Joanne Britcher, pp. 47, 48) 21. This deterioration and rotting of the logs was not in any way caused by the old house borers or the holes left by the old house borers. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 22. The limited wood destroying insect infestation inspection requested by Mr. and Mrs. Britcher did not include any inspection of the condition of the logs of the home or the structural integrity of the residence. 23. As it pertains to the damage caused by woodpeckers, any notation of that damage would also not be within the scope of the inspection as woodpeckers are not insects. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 4 24. Following that meeting, Mr. Johnson directed a letter to Mrs. Britcher dated August 12, 2003, proposing to arrange for the treatment of the old house borers. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 25. Mrs. Britcher, thereafter, refused Mr. Johnson's offer to arrange for the treatment of the old house borer holes. 26. Pursuant to Pa.R.Civ.P. 1035.2, summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. 27. Defendant, Homecheck, Inc. is entitled to summary judgment as a matter of law on Plaintiffs' claims for breach of contract, detrimental reliance and negligent inspection. 28. Three elements are necessary to demonstrate a cause of action for breach of contract: (1) the existence of a contract; (2) a breach of duty imposed by the contract; and (3) resultant damages. 29. To establish a claim for detrimental reliance, a plaintiff must demonstrate the following: (1) misleading words, conduct or silence by the party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert estoppel; and (3) no duty on the party seeking to assert estoppel. 30. Here, Plaintiffs have failed to proffer any evidence supporting that any acts or omissions by Defendant or Defendant's representatives caused the damages alleged in their Complaint. 5 31. Plaintiffs have failed to proffer any evidence establishing that the carpenter bees and/or old house borers existed on the property at the time the inspection was performed by Defendant on February 5, 2003. 32. Further, Plaintiffs have failed to demonstrate that any damage caused by woodpeckers was caused by any acts or omissions of Defendant. 33. Moreover, woodpeckers and any damage caused therefrom are outside the scope of the inspection requested by Plaintiffs as woodpeckers are not an insect. 34. Similarly, Plaintiffs have also failed to offer any evidence demonstrating that the deterioration and/or rotting of the logs of the home was caused by old house borers and/or any acts or omissions by Defendant. 35. Rather, the deterioration of the logs was caused by the paint that was applied to them by the former owner. 36. Further, an inspection of the condition of the logs and/or the structural integrity of the home is outside of the scope of the inspection requested by Plaintiffs. 37. Moreover, Plaintiffs have established that they were aware that the property had a history of wood destroying insects and pests and damage caused by same prior to their purchase of the property. 38. Plaintiffs have also established that the former owner advised them that they should apply pesticides around the exterior of the home on at least a monthly basis during the summer months, but despite that recommendation, they did not apply any pesticides to the property between the date of their purchase in February, 2003 and the date they first noticed insect activity in July, 2003. 6 39. Therefore, Plaintiffs have failed to meet their burden of proof of proving that any harm suffered by them was caused by the acts and/or omissions of Defendant and Defendant's representatives. 40. Consequently, Defendant Homecheck, Inc. is entitled to summary judgment as a matter of law in its favor. WHEREFORE, Defendant Homecheck, Inc. respectfully requests this Honorable Court grant is Motion for Summary Judgment and enter judgment in its favor and dismiss all claims asserted against it. Respectfully submitted, Lavery Faherty Patterson By: DATE: // /Z // Frank J. Lavery, Jr., squire Devon M. Jacob, Es ire 225 Market Street, S ite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant 7 CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law firm of Lavery Faherty Patterson, do hereby certify that on this 31St day of October, 2011, 1 served a true and correct copy of the foregoing Motion for Summary Judgment via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 ML. RefSno' L Secretary to Frank J. Lavery, Jr., Esquire and Devon M. Jacob, Esquire 8 -11' - , Frank J. Lavery, Jr., Esquire Devon M. Jacob, Esquire Lavery, Faherty, Young & Patterson, P.C. 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 Atty No. PA89182 flavery(c)laverylaw.com diacob(cDlaverylaw.com M" r' 1??` 'E'Jli, li ?4ttys for Defendant JAMES BRITCHER and JOANNE BRITCHER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW V. NO. 05-1557 CIVIL TERM HOMECHECK, INC. Defendant JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Defendant, Homecheck, Inc., hereby submits this Motion for Summary Judgment for this Honorable Court's consideration and in support thereof avers as follows: 1. Plaintiffs, James Britcher and Joanne Britcher, have filed the instant action against Defendant, Homecheck, Inc., arising from a wood destroying insect infestation inspection performed by Michael Krall, an inspector previously employed by Defendant, on February 5, 2003 of a residence located at 589 Middlesex Road, Carlisle, PA 17013 which Plaintiffs were considering purchasing from Frank Rich. 2. The Amended Complaint sounds in breach of contract, negligent inspection, and detrimental reliance. 3. Specifically, Plaintiffs were considering purchasing a log home from Frank Rich in February, 2003. 4. In conjunction with that purchase, Plaintiffs retained Homecheck to conduct a limited wood destroying insect infestation inspection. 5. Mrs. Britcher confirmed that she was aware that Homecheck was only inspecting for signs of infestation by wood destroying insects. (Deposition of Joanne Britcher, pp. 32, 41) 6. That inspection was performed by Michael Krall, a former employee of Homecheck, on February 5, 2003. 7. At that time, Mr. Krall prepared a wood destroying insect infestation report, which indicated that no visible evidence of a wood destroying insect infestation was observed. (Joanne Britcher depo., Ex. 5) 8. Thereafter, Plaintiffs purchased the home on or about February 28, 2003. (Am. Comp., ¶9) 9. Prior to Plaintiffs' purchase of the residence, they were advised that the residence had a history of wood destroying insects and pests and that the property had damage from such wood destroying insects and pests. (Deposition of Joanne Britcher, pp. 21-25, Ex. B) 10. Prior to the purchase of the property, Plaintiffs were also advised by the seller that they should spray around the parameter of the residence with insecticide every month during the summer. (Deposition of Joanne Britcher, pp. 21-25, Ex. B) 2 11. Despite this knowledge, Plaintiffs did not spray for any wood destroying insects between their purchase of the home in February, 2003 and when the sawdust was first noticed in July, 2003. (Deposition of Joanne Britcher, pp. 29, 30) 12. Mrs. Britcher confirmed that prior to June 30, 2003, she had not seen any evidence of and active infestation of the residence. (Deposition of Joanne Britcher, p. 30) 13. On or about July 9, 2003, Plaintiffs allegedly noticed saw dust around their home. (Am. Comp., ¶10) 14. Plaintiffs allege that upon further inspection, they located woodpecker holes on the north eave of the home, carpenter bees in the attic and holes made by old house wood borers. (Am. Comp., 111) 15. Thereafter, on July 25, 2003, Plaintiffs contacted Defendant Homecheck to advise of these findings. (Deposition transcript of Joanne Britcher, Ex. 8) On August 8, 2003, Steve Johnson, President of Homecheck, met with Mrs. Britcher to review her concerns. 16. At that meeting, Mr. Johnson and Mrs. Britcher walked around the exterior of the residence at which point Mr. Johnson noticed inactive holes from old house borers as well as deterioration to logs in several areas on the outside of the home caused by moisture penetration and damage from woodpeckers. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 17. Mr. Johnson advised Mrs. Britcher that the old house borer holes were inactive and that old house borers do not typically reinfest a property. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 3 18. As Mrs. Britcher was concerned about the inactive holes, Mr. Johnson offered to arrange to have the inactive holes from the old house borers treated and remedied even though there was no evidence that Mr. Krall had missed any signs of an active infestation during his inspection. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B"; Deposition of Joanne Britcher, Ex. 10) 19. At that time, Mr. Johnson also discussed with Mrs. Britcher that the deterioration and rotting of the logs was due to penetration of moisture caused the paint that had been applied to the exterior of the home. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 20. Mrs. Britcher confirmed that she was advised by at least one independent expert that the rotting and deterioration of the logs of the home was due to moisture penetration caused by the paint that had been applied to the exterior of the home by the prior owner. (Deposition of Joanne Britcher, pp. 47, 48) 21. This deterioration and rotting of the logs was not in any way caused by the old house borers or the holes left by the old house borers. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 22. The limited wood destroying insect infestation inspection requested by Mr. and Mrs. Britcher did not include any inspection of the condition of the logs of the home or the structural integrity of the residence. 23. As it pertains to the damage caused by woodpeckers, any notation of that damage would also not be within the scope of the inspection as woodpeckers are not insects. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 4 24. Following that meeting, Mr. Johnson directed a letter to Mrs. Britcher dated August 12, 2003, proposing to arrange for the treatment of the old house borers. (See, Affidavit of Steve Johnson, attached to the Brief in Support as Exhibit "B") 25. Mrs. Britcher, thereafter, refused Mr. Johnson's offer to arrange for the treatment of the old house borer holes. 26. Pursuant to Pa.R.Civ.P. 1035.2, summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. 27. Defendant, Homecheck, Inc. is entitled to summary judgment as a matter of law on Plaintiffs' claims for breach of contract, detrimental reliance and negligent inspection. 28. Three elements are necessary to demonstrate a cause of action for breach of contract: (1) the existence of a contract; (2) a breach of duty imposed by the contract; and (3) resultant damages. 29. To establish a claim for detrimental reliance, a plaintiff must demonstrate the following: (1) misleading words, conduct or silence by the party against whom estoppel is asserted; (2) unambiguous proof of reasonable reliance on the misrepresentation by the party seeking to assert estoppel; and (3) no duty on the party seeking to assert estoppel. 30. Here, Plaintiffs have failed to proffer any evidence supporting that any acts or omissions by Defendant or Defendant's representatives caused the damages alleged in their Complaint. 5 31. Plaintiffs have failed to proffer any evidence establishing that the carpenter bees and/or old house borers existed on the property at the time the inspection was performed by Defendant on February 5, 2003. 32. Further, Plaintiffs have failed to demonstrate that any damage caused by woodpeckers was caused by any acts or omissions of Defendant. 33. Moreover, woodpeckers and any damage caused therefrom are outside the scope of the inspection requested by Plaintiffs as woodpeckers are not an insect. 34. Similarly, Plaintiffs have also failed to offer any evidence demonstrating that the deterioration and/or rotting of the logs of the home was caused by old house borers and/or any acts or omissions by Defendant. 35. Rather, the deterioration of the logs was caused by the paint that was applied to them by the former owner. 36. Further, an inspection of the condition of the logs and/or the structural integrity of the home is outside of the scope of the inspection requested by Plaintiffs. 37. Moreover, Plaintiffs have established that they were aware that the property had a history of wood destroying insects and pests and damage caused by same prior to their purchase of the property. 38. Plaintiffs have also established that the former owner advised them that they should apply pesticides around the exterior of the home on at least a monthly basis during the summer months, but despite that recommendation, they did not apply any pesticides to the property between the date of their purchase in February, 2003 and the date they first noticed insect activity in July, 2003. 6 39. Therefore, Plaintiffs have failed to meet their burden of proof of proving that any harm suffered by them was caused by the acts and/or omissions of Defendant and Defendant's representatives. 40. Consequently, Defendant Homecheck, Inc. is entitled to summary judgment as a matter of law in its favor. WHEREFORE, Defendant Homecheck, Inc. respectfully requests this Honorable Court grant is Motion for Summary Judgment and enter judgment in its favor and dismiss all claims asserted against it. Respectfully submitted, Lavery Faherty Patte By: DATE: J N3111( Frank J. Lav ry Jr., Esquire Devon M. Ja o , Esquire 225 Market S r et, Suite 304 P.O. Box 124 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA42370 flavery@laverylaw.com Attys for Defendant 7 CERTIFICATE OF SERVICE I, Megan L. Renno, an employee with the law firm of Lavery Faherty Patterson, do hereby certify that on this 31St day of October, 2011, 1 served a true and correct copy of the foregoing Motion for Summary Judgment via U.S. First Class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 4 '? ,, - e a . Re no Le al ecretary to Frank J. Lavery, Jr., Esquire and Devon M. Jacob, Esquire 8 ,n Amy L. Coryer, Esquire Lavery Faherty Patterson 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA82718 acoryer@laverylaw.com Atttorney for Defendant, Homechek, Inc. ,)17 THE FILED-OFFICE 2011 DEC 29 PH 3: 01 CUMBERLAND COUNTY PENNSYLVANIA JAMES BRITCHER and : JOANNE BRITCHER, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW V. ; NO. 05-1557 CIVIL TERM HOMECHEK, INC. Defendant JURY TRIAL DEMANDED PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: PLEASE mark the above-captioned matter ended, settled and discontinued. Respectfully Submitted, Date: 12- f Vincent M. Monfredo, Esquire Attorney for Plaintiffs 11 JAMES BRITCER and JOANNE BRITCHER Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW V. HOMECHEK, INC. Defendant :NO. 05-1557 CERTIFICATE OF SERVICE I, Vincent M. Monfredo, Esquire, do hereby certify that I served a copy of the Praecipe upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Amy Coryer, Esquire LAVERY FAHERTY YOUNG & PATTERSON, P. 225 Market Street Suite 304, P. O. Box 1245 Harrisburg, PA 17108-1245 Respectfully submitted, ROMINGER & ASSOCIATES Dated: < 2,- 2?1-!f( Vincent M. Monfredo, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 206671 Attorney for Plaintiffs