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HomeMy WebLinkAbout14-5733 Supreme Co ,,&f1,.?ennsylvania C011I' Of COmInO leas For Prothonotary Use Only: Civil`Cnver�Sheet ,,{' _ Docket No: S.,r cuM�a�RLaN> r County /c/ 73 3 ?�iA �. z The information collected on this form is used solely.for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S Complaint €X Writ of Summons Q Petition ® Transfer from Another Jurisdiction I i Declaration of Taking iE C Lead Plaintiff's Name: Lead Defendant's Name: Sylvia Bickmire K. Hovnanian at Silver Spring, LLC T Dollar Amount Requested: 0within arbitration limits I Are money damages requested? Yes No (check one) IR outside arbitration limits , 0 N Is this a Class Action Suit? 0 Yes ER No Is this an MDJAppeal? Yes xi No A Name of Plaintiff/Appellant's Attorney: Jason P. Kutulakis, Esquire 0 Check here if you have no attorney(are a Self-Represented [Pro Sel Litigant) j Nature of the Case: Place an "X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS j Intentional Buyer Plaintiff Administrative Agencies ® Malicious Prosecution ® Debt Collection:Credit Card ® Board of Assessment Motor Vehicle Debt Collection:Other ® Board of Elections ® Nuisance Dept.of Transportation ® Premises Liability ® Statutory Appeal:Other S U Product Liability(does not include mass tort) ® Employment Dispute: E ® Slander/Libel/Defamation Discrimination C FRI Other: r3i Employment Dispute: Other [3 Zoning Board Negligence Other: ' T I [3 Other: o MASS TORT Asbestos N Tobacco Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste ® Ejectment Q Common Law/Statutory Arbitration B © Other: 13 Eminent Domain/Condemnation [3 Declaratory Judgment Ground Rent y, Mandamus Landlord/Tenant Dispute Non-Domestic Relations n Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY ® Mortgage Foreclosure: Commercial Quo Warranto ® Dental ® Partition Q Replevin F1 Legal ® Quiet Title ®Other: Q Medical F1 Other: fJ Other Professional: Updated 11112011 r IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION ., SYLVIA and BRIAN BICKMIRE Plaintiff 7 Docket No.. N. 5 3 3 Civil Action—Law ; V. K. HOVNANIAN AT SILVER SPRING, LLC 110 West Front Street P.O. Box 500 Red Bank,NJ 07701 Defendant JURY TRIAL DEMANDED PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons in the above-captioned civil action. Respectfully submitted, Jas, n P%tulakis, Esquire Attorney for Plaintiff 2 West High Street Carlisle, PA 17013 717-249=0900 Attorney ID# 80411 7 - � ct 7�� 31143 rw IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION SYLVIA and BRIAN BICKMIRE Plaintiff _ Docket No.: l q — 5 733 Civil Action—Law V. K. HOVNANIAN AT SILVER SPRING, LLC 110 West Front Street P.O. Box 500 Red Bank,NJ 07701 Defendant JURY TRIAL DEMANDED WRIT OF SUMMONS You are notified'that Sylvia and Brian.Bickmire have commenced an action against you. n Date: �Q do) / isi �G �✓ Prothonotary Depu Prothonotary NORRIS, McLAUGHLIN & MARCUS, PA By: Frederick J. Stellato Identification No.: 37674 Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 (610) 391-1800 SYLVIA and BRIAN BICKMIRE, V. K. HOVNANIAN AT SILVER SPRING, LLC : TO THE CLERK OF SAID COURT: JURY TRIAL DEMANDED Attorney for Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 14-5733 ENTRY OF APPEARANCE Kindly enter my appearance on behalf of the Defendant in connection with the above -captioned matter. time of trial. Please note a jury panel of 12 members is hereby requested at NORRIS, McLAUGHLI ► t 101/41' BY: AIM Frederi : J. Stellato, Esquire Attorney for Defendant MARCUS, PA CERTIFICATE OF SERVICE I hereby certify that I have forwarded a true and correct copy of the foregoing Entry of Appearance, by first class mail, postage prepaid, on the date shown below to all interested counsel as follows: Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 Date: 711 y NORRIS, McLAUGHLIN & MARCUS, PA M., BY:/0,00 Frede Stellato, Esquire Attorney for Defendant n- ,f IAR r 2814 OCT 20 CJAB RLA 10 COUNTY PEr{ 3YLVANIA 2: 1 1 NORRIS, McLAUGHLIN & MARCUS, PA By: Frederick J. Stellato Identification No.: 37674 Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 (610) 391-1800 SYLVIA and BRIAN BICKMIRE, V. K. HOVNANIAN AT SILVER SPRING, LLC : JURY TRIAL DEMANDED Attorney for Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 14-5733 PRAECIPE TO FILE RULE TO THE PROTHONOTARY OF SAID COURT: Please enter a rule upon Plaintiffs to file a Complaint within twenty (20) days hereof or suffer the entry of a judgment of non pros. NORRIS, McLAUGHLIN & MARCUS, PA BY: Frederick . Stellato, Esquire Attorney for Defendant NORRIS, McLAUGHLIN & MARCUS, PA By: Frederick J. Stellato Identification No.: 37674 Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 (610) 391-1800 SYLVIA and BRIAN BICKMIRE, V. K. HOVNANIAN AT SILVER SPRING, LLC : JURY TRIAL DEMANDED Attorney for Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.: 14-5733 RULE TO FILE COMPLAINT AND NOW, this day of 64, , 2014, upon praecipe of defendant, K. Hovnanian at Silver Spring, LLC, a Rule is hereby entered upon plaintiff to file a Complaint herein within twenty (20) days after service hereof or suffer the entry of a judgment of non pros. /C2,2Jila. Prothonotary CERTIFICATE OF SERVICE I hereby certify that I have forwarded a true and correct copy of the foregoing Praecipe to File Rule and Rule to File Complaint, by first class mail, postage prepaid, on the date shown below to all interested counsel as follows: Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 Date: 4-24cf NORRIS, McLAUGHLIN & MARCUS, PA BY: Frederic Attorn . Stellato, Esquire for Defendant -3 OM ISLTTULAKIS Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 Brandon S. O'Donnell, Esquire Attorney ID. # 316575 2 West High Street Carlisle, PA 17013 (717) 249-0900 LED-UFFICE UF THE PROTHONOTAF;Y 2.0110,10V 10 PM 2: 50 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION SYLVIA and BRIAN BICKMIRE Plaintiff v. K. HOVNANIAN AT SILVER SPRING, T .0 Defendant Docket No.: 2014-5733 Civil Action — Law JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Defendant, K. Hovnanian At Silver Spring, L.L.C. c/o Frederick J. Stellanto, Esquire Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, 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. Date: ill I Oi rstAi Pennsylvania Bar Association Lawyer Referral Service 1-800-692-7375 (PA ONLY) or 717-238-6715 Respectfully Submitted, ABOM & KUTULAKIS, LLP 411 lason P. Kutulakis, Esquire I.D. No.: 80411 Brandon S. O'Donnell, Esquire I.D. No.: 316575 2 West High Street Carlisle, PA 17013 Attorneys for Plainte- OM LITULAMS Jason P. Kutulakis, Esquire Attorney ID. #: 80411 Brandon S. O'Donnell, Esquire Attorney ID # 316575 2 West High Street Carlisle, PA 17013 (717) 249-0900 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION SYLVIA and BRIAN BICKMIRE Plaintiff v. K. HOVNANIAN AT SIT ATER SPRING, LT C Defendant Docket No.: 2014-5733 Civil Action — Law JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiffs, Sylvia and Brian Bickmire, by and through their attorney, Jason P. Kutulakis, Esquire, and Brandon S. O'Donnell, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against the above-named Defendant, K. Hovnanian at Silver Spring, L.L.C., to recover damages, attorney fees and costs, in an amount to exceed the amount requiring arbitration, upon the following causes of action: Factual Background 1. Plaintiffs are Sylvia and Brian Bickmire, adult individuals, currently residing at 3429 Lochside, The Colony, Texas 75056. 2. Defendants are K. Hovnanian at Silver Spring, LLC, a limited liability company doing business in the state of Pennsylvania with corporate offices located at 110 West Front Street, Post Office Box 500, Red Bank, New Jersey 07701. (See Pennsylvania Department of State Business Filing, attached and marked as Exhibit A). 3. Plaintiffs entered into a purchase agreement with Defendants for a home located at 51 Bella Vista Drive, Mechanicsburg, Cumberland County, Pennsylvania on January 27, 2009. (See Purchase Agreement, attached and marked as Exhibit B). 4. The home Plaintiffs purchased from Defendants was built in 2006 and had been the model home for the neighborhood until Plaintiffs purchased the home on January 27, 2009. 5. Plaintiff, Sylvia Bickmire, worked from home full-time as a recruiter for Grifols. 6. Ms. Bickmire worked from home m a home office at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania. 7. While residing in the home, Plaintiff, Sylvia Bickmire, began experiencing health related issues for an unknown reason. 8. In August 2011, Plaintiff, Sylvia Bickmire, visited her primary care physician, Dr. Linda Decesare, for blood work as Ms. Bickmire was having severe joint pain, chronic fatigue, and depression without an ascertainable cause for those symptoms. 9. Ms. Bickmire's blood test results revealed a positive ANA test for Lupus at 80 dilute so she was referred to a Rheumatologist named Dr. Marcia Johnson. 10. Simultaneously, Ms. Bickmire was experiencing stomach related issues including acid reflux, nausea, and pain in the abdomen for an unknown reason. 11. In an effort to alleviate the stomach issues, Ms. Bickmire visited Gastroenterologist, Dr. Michael Hartley. 12. In October 2011, Dr. Harkey performed an upper endoscopy and colonoscopy to reveal stomach ulcers and colon polyps. 13. The colon polyps were removed and Ms. Bickmire was described medication for the ulcers and acid reflux and continues to do so to this day. 14. In November 2011, Dr. Marcia Johnson, prescribed a steroid pack for Ms. Bickmire to alleviate her joint pain. 15. The steroid pack yielded no results or relief. 16. In December 2011, Dr. Johnson placed Ms. Bickmire on Methotrexate for 12 weeks and prescribed Tramadol for pain, which did not alleviate any joint pain or fatigue, but rather increased her fatigue and caused nausea. 17. Since the previous two treatments did not work, Dr. Johnson started treating Ms. Bickmire for inflammatory arthritis and prescribed Enbrel. 18. Ms. Bickmire suffered an allergic reaction to the Enbrel requiring a visit to the Emergency Room and Ms. Bickmire being confined to her bed for three days. 19. In December 2011, Ms. Bickmire, who worked from home was unable to continue working due to health problems. 20. In October 2012, a picture hanging on the home office wall at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania fell off of the wall onto the floor. 21. Plaintiffs attempted to re hang the picture, but the drywall was so soft it would not hold a drywall anchor or nail. 22. On October 6, 2012, Erick Jensen, from JEM Enterprises, L.L.C. visited the Plaintiffs' home in order to determine the cause of the soft drywall in the home office. 23. Mr. Jensen discovered mold behind the wallpaper in the office at the home. 24. After removing the wallpaper, it was determined that black mold had penetrated from the exterior framing of the home through the drywall to the inside of the home. 25. Upon inspection of the office exterior wall, Mr. Jensen discovered a crack in the stucco that had been previously repaired prior to Plaintiffs purchasing the home that had cracked again. 26. Mr. Jensen notated other similar cracks in the stucco that had been repaired. 27. Plaintiffs were unaware of any cracks or repairs made to any cracks to the exterior of the home prior to them purchasing the home or after the purchase of the home. 28. Samples of the mold from the home were sent to EMSL Analytical, Inc. for analysis. 29. The results from EMSL Analytical, Inc. included high results of Cladosporium and Aureobasidium. (See EMSL Analytical, Inc. Report, attached and marked as Exhibit C). 30. On October 6, 2012, Mr. Bickmire contacted Nate Patterson, K. Hovnanian Homeowner Service Manager to inform him of the presence of mold in the home based upon the visit from JEM Enterprise, Inc. 31. On October 17, 2012, Mr. Bickmire contacted Nate Patterson requesting a detailed summary of damage found at the home. 32. On October 18, 2012, Mr. Patterson responded to the request stating that K. Hovnanian would provide a Garden State Environmental Report detailing that any damage was remediated, but would not provide documents regarding mold or any documents dealing with the structural integrity of the home per corporate policy. 33. On October 19, 2012, Garden State Environmental collected samples from the home, per direction of Nate Patterson, to be analyzed by Aerobiology Laboratory Associations, Inc. 34. Aerobiology testing results indicated that ranged from 5% until 75% of the trace occluded with particulate present throughout the home. (See Aerobiology Laboratory Certificate of Analysis, attached and marked as Exhibit D). 35. During the month of October 2012, a mold remediation crew visited the home to begin working on the office wall framing and purifying the air as a result of the testing and at the direction of K. Hovnanian. 36. Upon discovering mold in the home, Ms. Bickmire alerted Dr. Johnson that mold was discovered in the home since it could possibly be a cause for the health problems Ms. Bickmire was experiencing at the time. 37. On November 2, 2012, Mr. Bickmire alerted Mr. Patterson at K. Hovnanian that the Ms. Bickrnire had experienced health issues. 38. Mr. Patterson indicated that K. Hovnanian did not believe that Ms. Bickmire's health issues were a result of or related to the construction of the home at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania. 39. In November 2012, Ms. Bickmire began experiencing severe abdominal pain in the upper right quadrant of her abdomen. 40. On November 13, 2012, after an ultra sound and x-ray, it was discovered that Ms. Bickmire's gall bladder was contracting hard and causing the severe pain. 41. On December 19, 2012, Ms. Bickmire's gall bladder was removed. 42. After recovery, Ms. Bickmire continued taking medication for joint pain and fatigue. 43. On May 13, 2013, Ms. Bickmire sought counseling as she was experiencing severe depression and anxiety as a result of her physical ailments. 44. In June 2013, the exterior of the home at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania was completely removed by a third party vender at the direction of Nate Patterson from K. Hovnanian. 45. On June 26, 2013, Garden State Environmental collected samples from the home in order to determine if the exterior re -construction could move forward. 46. On June 28, 2013, Garden State Environment -21 issued a preliminary exterior clearance indicating the home was cleared for re -construction. 47. On July 16, 2013, Garden State Environmental completed the interior clearance inspection. 48. On July 26, 2013, Garden State Environmental issued a Final Mold Clearance Report. (See Garden State Report, attached and marked as Exhibit E). 49. On July 28, 2013, Mr. Bickmire requested from K. Hovnanian the original testing report that was conducted on the home prior to the mold remediation. 50. Mr. Patterson from K. Hovnanian refused to share the initial results with Plaintiffs. 51. Plaintiffs eventually relocated to the Dallas, Texas area. 52. In March 2014, Ms. Bickmire sought out environmental health specialist, Dr. William Rea, to determine if her symptoms and ailments could in fact be mold related. 53. Dr. Rea indicated that based upon her symptoms and the prolonged mold exposure Ms. Bickmire encountered, her health issues could be mold related. 54. On April 16, 2014, Ms. Bickmire submitted a urine test to determine if mold related mycotoxins were present in her body. 55. Ms. Bickmire's urine test results indicated positive results that mold related mycotoxins were indeed present in her body. 56. In fact, Dr. Rea recommended regular sauna treatments for Ms. Bickmire to sweat out the toxins. 57. Additionally, Dr. Rea recommended the injection of mold antigens in Ms. Bickmire's abdomen every three days because her the presence of mycotoxins was so high. 58. In August 2014, Ms. Bickmire purchased a medical grade sauna to begin home treatments since she needs to treat so frequently due to the extended exposure to mold. 59. Ms. Bickmire has experienced the following ailments as it relates to the presence of mold in the home at Bella Vista Drive in Mechanicsburg, Pennsylvania: a. Joint pain; b. Stomach Ulcers; c. Chronic Fatigue; d. Depression; e. Swollen joints; f. Concentration Issues; g. Short term memory problems; h. Unexplained bruising; and i. Delayed wound healing and scarring. 60. As a result of the physical ailments Ms. Bickmire experienced due to her exposure to mold at the home on Bella Vista Drive, Mechanicsburg, Pennsylvania, Ms. Bickmire is unable to enjoy the activities she once enjoyed including: a. Working; b. Weight training; c. Regular Workouts at least three times per week with a trainer; d. Social Activities; e. Painting; and f. Sewing. COUNT I — NEGLIGENCE 61. The preceding averments are incorporated by reference as if set forth fully herein. 62. It is well established that the elements of a negligence based cause of action are duty, breach of that duty, a causal relationship between the breach of said duty and the resulting injury, and actual loss. Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785, 789 (Pa. Super. Ct. 2005). 63. Defendants, K. Hovnanian, had a duty to sell a property that was habitable and free from mold to Plaintiffs. 64. Additionally, Defendants had a duty to disclose any repairs made to the home prior to selling the home to Plaintiffs. 65. Defendants breached that duty by selling a home to Plaintiff that was not habitable due to the growth of mold and failing to disclose the stucco cracks that had been repaired on the home. 66. Plaintiffs incurred injury in that Plaintiff's health deteriorated significantly, Plaintiff incurred medical treatment bills, and Plaintiff was unable to work due to her health as a result of her exposure to mold. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Negligence. COUNT II — BREACH OF WARRANTY OF HABITABILITY 67. The preceding averments are incorporated by reference as if set forth fully herein. 68. In Pennsylvania, the Pennsylvania Supreme Court has held that a "builder -vendor impliedly warrants that the home he has built and is selling is constructed in a reasonably workmanlike manner and that it is fit for the purpose intended — habitation." Elderkin v. Gaster, 447 Pa. 118, 128 288 A.2d 771, 777 (1972). 69. In the instant case, the builder, Defendant K Hovnanian, built and sold the home to Plaintiffs. 70. Prior to Plaintiffs moving into the home, the home was unoccupied as it was the model home for the neighborhood. 71. The home contained numerous cracks in the stucco that had been repaired prior to Plaintiffs moving into the home, but still permitted moisture to permeate the home and ultimately sickened the homeowner. 72. Due to the mold contained within the home, the home was not fit for habitation. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Breach of the Warranty of Habitability. COUNT III — BREACH OF EXPRESS WARRANTY 73. The preceding averments are incorporated by reference as if set forth fully herein. 74. In the agreement between Plaintiffs and Defendant, Defendant provided an Express Warranty at paragraph 20 providing a one (1) year warranty after possession that the property was free from defects. (See, Exhibit B). 75. The property was not free from defects as the mold condition was present inside the walls of the home. 76. The Plaintiffs merely discovered the defect in October 2012 as it was not known by the Plaintiffs and not disclosed by the Defendants at the time of settlement. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Breach of Express Warranty. COUNT IV - FRAUD 77. The preceding averments are incorporated by reference as if set forth fully herein. 78. In Pennsylvania, "the essential elements of a cause of action for fraud or deceit are a misrepresentation, a fraudulent utterance thereof, an intention to induce action thereby, justifiable reliance thereon and damage as a proximate result." Wilson v. Donegal Mut. Ins. Co., 598 A.2d 1310, 1315 (Pa. Super. 1991). 79. Defendants misrepresented to Plaintiffs that the home at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania was in a habitable state. 80. Furthermore, Defendants failed to disclose to Plaintiffs that the exterior stucco had previously cracked and been repaired prior to Plaintiffs' purchasing the home. 81. Plaintiff relied on Defendants assertions and lack of disclosure in purchasing the home. 82. Plaintiff's purchase of the home resulted in Plaintiff, Sylvia Bickmire, becoming ill due to the prolonged mold exposure. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Fraud. COUNT IV — VIOLATION OF THE UNFAIR TRADE AND CONSUMER PROTECTION LAW, 73 P.S.§ 201, et. seq. 83. The preceding averments are incorporated by reference as if set forth fully herein. 84. 73 P.S. § 201-2(4) states in pertinent part that unfair or deceptive acts or practices occur by the "[failure] to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for purchase of goods or services is made." 73 P.S. § 201-2(4) (xv). 85. The above acts by Defendant constitutes an unfair or deceptive act or practice. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's violation of the Unfair Trade and Consumer Protection Law. DATE: \ J &) Respectfully submitted, Abom & Kutulakis, L.L.P. ason P. Kutulakis, Esquire I.D. No.: 80411 Brandon S. O'Donnell, Esquire I.D. No.: 316575 2 West High Street Carlisle, PA 17013 Attorneys for Plaint VERIFICATION We, SYLVIA and BRIAN BICKMIRE, verify that the statements made in the foregoing document are true and correct to the best of our knowledge, information, and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date I \DtA1114 Date \(okA \ SYLVIA BICKMIRE BIR Business Entity pennsylvania DEPARTMENT OF STATE Page 1 of 1 Corporations Online Services I Corporations I Forms I Contact Corporations I Business Services Search By Business Name By Business Entity ID Verify Verify Certification Online Orders Register for Online Orders Order Good Standing Order Certified Documents Order Business List My Images Search for Images Date: 9/29/2014 (Select the link above to view the Business Entity's Filing History) Business Entity Filing History Business Name History Name K. HOVNANIAN AT SILVER SPRING, L.L.C. Name Type Current Name Limited Liability Company Entity Number: Status: Entity Creation Date: State of Business.: Registered Office Address: Mailing Address: - Domestic - Information 3320040 Active 7/11/2005 PA % Corporation Service Company PA Dauphin No Address Copyright 2002 Pennsylvania Department of State. Ali Rights Reserved. Privacy Policy 1 Security Policy https://www.corporations.state.pa.us/corp/soskb/Corp.asp?2196073 TERMS AND CONDITIONS - PURCHASE AGREEMENT 1. AGREEMENT This . Terms an Conditions Purchase Agreement is hereby .entered into by and between K. Hovnanian a6 kir-C-14-'113 L.L.C, a Pennsylvania limited liability company ("K. Hovnanian", sometimes referred to herein as "We") and -5' 070C- y.i ft- , ("Buyer", sometimes referred to herein as "You"). It specifically incorporates the Summary of Basic Provisions as if set forth in full, a copy of which is attached and made a part hereto as Exhibit "A". Also, the selections made on the Decorator Selections, Options and Upgrades shall be a part of this Agreement and the Buyer shall have the obligation to pay for at Settlement the selections made (collectively, these documents and any addenda thereto shall be referenced as the "Agreement"). Failure to comply with any of these terms is a default under this Agreement. 2. DEPOSITS' l All deposits for K. Hovnanian at S, 114(5- `ry 1 , L.L.C. shall be held in an escrow account with a Federally or State -insured bank or depository until Settlement of title or termination of this Agreement. If K. Hovnanian transfers the deposit from one escrow account to another during the pendency of this transaction, the escrow account must be with a Federally or State -insured bank or depository and K. Hovnanian shall provide Buyer with written notice of the change. Interest accrued from such deposits shall belong to K. Hovnanian and shall not be credited towards the Purchase Price. 3. DECORATOR SELECTIONS Buyer must make Decorator Selections on a timely basis in order for the home to be completed by the Estimated Completion Date. The Estimated Completion Date, as set forth in the Summary of Basic Provisions, is used to identify a thirty (30) day period within which we expect to complete and settle your new home. Buyer shall make Decorator Selections by the Home Release Date, or in the absence of that date, within ten (10) days of Seller's request that they be completed. If Buyer fails to do so, Seller, in its sole discretion, has the right to do one or more of the following: (a) increase the prices of Decorator Selections; (b) change the Estimated Completion Date; or (c) make Decorator Selections for Buyer and Buyer will accept and pay for the selection(s) made by Seller. Seller will not request that Buyer make Decorator Selections before the expiration of Buyer's cancellation rights under this Agreement. Upon the completion of the Decorator Selections, Options and Upgrades form, the Buyer shall pay to Seller a ten (10%) percent deposit of the total amount of the Decorator Selections. Changes to Selections: Changes to the Decorator Selections of the home during the construction process may require the cancellation of orders, resulting in restocking fees, rescheduling of multiple trade contractors, and almost always interrupting the construction process. The Buyer shall execute a Change Order form to request changes to Decorator Selections. If a change is requested after the Home Release Date, a $300.00 administration fee per item will be assessed on the Change Order Form, which shall be non-refundable and due when the Change Order is submitted. In addition, if the revision is accepted by the Seller, the cost for each item may be considerably higher than previously reviewed during the decorator selection appointment, due to order cancellation and/or required additional expenses. HOME RELEASE DATE d7 4. 4. CHANGES IN PLANS K. Hovnanian has the right to make substitution of materials, equipment or design changes without notice to Buyer whenever K. Hovnanian fords it necessary or expedient, in its sole discretion, provided that the substitutions are of equal or better quality. K. Hovnanian has the right, in its sole discretion, to determine the placement of the home on the Property including: (a) a reverse of the floor plan; (b) the right to make any grading adjustments; and (c) to remove, change or leave naturally occurring features on the Property. 5. Silk; CONDITIONS A numberof factors affect the use and enjoyment of the Property on which Buyer has chosen to build a home. K. Hovnanian recommends that a title search be ordered by Buyer to determine the covenants, restrictions, easements, charges and liens that may affect the Property. The size, configuration, topography and other natural conditions of the Property, and the model type of home chosen by Buyer, may affect the use of the Property and the final configuration of the facades of the model on your home as affected by these conditions. Attached hereto as Exhibit "B" is a plan that depicts the Property and some of the natural conditions on the Property. Also attached as part of Exhibit "B" are front and rear facades of the home that the Buyer is purchasing (collectively, the "Plans"), which will be substantially similar to the way the home will appear when built. In addition to reviewing the Plans, which are incorporated herein, K. Hovnanian suggests that Buyer review the Township approved subdivision plans located in the sales office to assist in determining the suitability of the Property for your intended use. When reviewing these plans, please bear in mindThat the final grading and clearing of the property and setback distances may be changed due to site conditions encountered during construction. These changes may include but not be limited to: retaining walls, grading, surface drainage, drainage easements, utility easements, utility transformers, landscaping, precise location of homes, driveways, walkways, etc. Due to the natural features of the land, the area surrounding your home may not be cleared and/or leveled by K. Hovnanian. This means that there may not be lawn or yard areas surrounding your home suitable for activities that may typically be conducted in such areas. Further, wooded areas on your property may not be cleared of naturally occurring debris. You should also be aware of the following: a) Neither. K. Hovnanian nor its sales representatives make any representations concerning your ability to use the Property other than those representations set forth in this Agreement. The number, type and the location of plantings on the Property may have been required by the approvals granted by the Township. You should inspect the landscaping plan in the sales office to determine if such will affect home suitability. No assumptions should be made with respect to the flatness or steepness of grades, or existing vegetation on the property. Both existing and required slopes and grades, as well as soil conditions, will have an effect on the final grade conditions suitable for your intended use and enjoyment of the property. You may or may not find these final grading and vegetative conditions suitable for your intended use and enjoyment of the Property. A careful review of the subdivision and grading plans located in the sales office by someone competent to review such plans is necessary to ascertain the proposed grade conditions that are expected to exist upon completion of grading and landscaping (subject, to minor changes due to site conditions encountered during construction, as noted above). d) The utility companies providing services to this community dictate the location of such items as streetlights and utility structures, including but not Limited to transformers, fire hydrants and telephone pedestals. It is possible that one or more of these items may be located near your home. Neither the Association nor any Owner shall use or erect or permit to be erected anything within any areas shown on the Plan as wetlands, whether in Open Space or on a Lot, nor shall the Association or any Owner engage in any grading and/or filling or other disturbances of the wetland areas, except as may be permitted by the Pennsylvania Department of Environmental Protection under applicable law. The Public Offering Statement or General Information Statement, as applicable, sets forth the status of the water and sewer service to the Property. The zoning classification of the Property, if it is not zoned primarily to permit single-family dwellings, is also set forth therein. 6. DISCLOSURE REGARDING POSSIBILITY OF MOLD AND OTHER BIOLOGICAL IMPURITIES INITIALLY EXISTING IN OR LATER DEVELOPING IN YOUR HOME K. Hovnanian hereby informs Buyer that organisms commonly referred to as "mold" may be present in the newly constructed home identified above at the time of Buyer's initial occupancy, or, if not present at the time of Buyer's initial occupancy may later develop within the interior of that home. This home is neither constructed nor warranted to be free of mold or other naturally occurring biological impurities. Mold is a natural occurring organism, and typically will collect and grow whenever the combination of moisture, organic materials, and warmth co -exist. There are hundreds -- maybe thousands -- of species of organisms commonly referred to as "mold". Some of those species are possibly benign, but others are believed to be toxic to human health and destructive of certain building materials like wood. Many people are allergic to, or develop allergies to mold. In addition to mold, certain other naturally -occurring, sometimes organic, airborne, and often invisible, contaminants such as animal dander, dust, dust mites, fungi, bacteria and pollen (collectively, "Biological Impurities") may be brought into the home (through the natural circulation of air or generated by or carried upon people, animals or things) where they can become trapped and allowed to grow in the home unless they are. removed. As with mold, Biological Impurities can cause allergies or other health effects. According to some experts, mold and other Biological Impurities can probably not be completely eliminated, but may be reduced by routine Buyer maintenance. Therefore, Buyer should (1) perform periodic inspections to find visible mold or Biological Impurities, (2) remove those substances when present, and (3) perform periodic inspections to detect visible moisture (which contributes to mold growth). You should repair any moisture barrier built into the home which is aged or which has failed and is permitting the presence of moisture. We recommend you contact a licensed contractor for assistance in meeting these responsibilities. Additional information may available from the United States Environmental Protection Agency or state and local authorities. To remind you and to alert subsequent owners or occupants of your home to this Disclosure, Buyer hereby agrees that either prior to or subsequent to Settlement, K. Hovnanian may install (in the laundry room, kitchen or bathroom cabinets, or other suitable locations in the home) a permanent reminder of the need to continually monitor for the presence of mold and/or other Biological Impurities. 7. RADON DISCLOSURE Radon is a naturally occurring invisible, odorless gas formed underground by decaying radium. The gas, which usually rises to the surface and dissipates harmlessly in the open air, can reach elevated levels if trapped in well -insulated or poorly ventilated areas. At the present time, there is no reliable test to determine radon levels in soil and it is impossible to know whether elevated levels will be found in homes in this development. In any event, K. Hovnanian will place 4 inches of stone underneath the slab and place perforated PVC piping in the stone, and will place PVC piping from the basement ceiling through the open space of the attic which could later be vented through the roof to the atmosphere by the homeowner. K. Hovnanian makes no guarantee or representation that such technique will eliminate or reduce the entry of radon gas, if any, into the homes in this development. Furthermore, the levels of radon that occur within any particular home are very dependent upon many factors which are unique to the home, the time of year and even the lifestyle of the people living within the home. It is not possible to obtain readings of radon levels while a home is under construction that would be reliable indicators of levels of completed, occupied homes. 8. MORTGAGE CONTINGENCY This Paragraph applies only if a "Mortgage Amount" is filled in on the Summary of Basic Provisions part of this Agreement. Within ten (10) business days of the date on which this Agreement is fully executed, Buyer will make application to obtain a mortgage from an institutional lender licensed in Pennsylvania. This Agreement is contingent on Buyer obtaining a written mortgage commitment no later than the Mortgage Contingency Date, for not more than the mortgage amount stated in the Summary of Basic Provisions, at the prevailing rate of interest as of the date of Settlement and based upon a payment term of not less than thirty (30) years. Buyer must timely and fully comply with all requests of the lender. Buyer must not withdraw any loan application, refuse any reasonable commitment offered, and must pay all fees and charges connected to such application and commitment. K. Hovnanian is not obligated to pay any fees, costs, points or other charges in connection with such application or commitment, unless K. Hovnanian agrees to do so in writing in advance. Buyer hereby authorizes Buyer's lending institution to release to K. Hovnanian all information contained in and regarding Buyer's mortgage application and commitment. If Buyer receives a mortgage commitment containing conditions or contingencies that Buyer is responsible for, it is Buyer's obligation to satisfy them. Buyer's failure to satisfy all conditions or contingencies is a default by Buyer. 11 Buyer does not obtain a mortgage commitment by the Mortgage Contingency Date, Buyer may: (a) elect to waive the mortgage contingency and complete the purchase without a mortgage, or (b) request that K. Hovnanian extend the Mortgage Contingency Date, or (c) request cancellation of this Agreement and return of all deposits paid, without interest or penalty. Any request to extend the Mortgage Contingency Date or to cancel this Agreement must be in writing received by K. Hovnanian before the Mortgage Contingency Date and must contain copies of documents proving that Buyer had made timely application for the mortgage and that the application was either denied or is still awaiting determination. No mortgage contingency will be extended to a new date unless specifically agreed to in writing by K. Hovnanian before the then current Mortgage Contingency Date is reached. If Buyer elects to waive the mortgage contingency, then this Agreement will remain in full force without any mortgage contingency and Buyer must go forward with the purchase. If, before the Mortgage Contingency Date, Buyer requests a cancellation of this Agreement for failure to obtain a mortgage commitment before the Mortgage Contingency Date, then K. Hovnanian, at its option, may elect either to: (1) refund Buyer's deposits without interest; (2) direct Buyer to apply for a mortgage commitment consistent with the terms of this Agreement to a lending institution K. Hovnanian selects, and Buyer agrees to timely complete and execute all documents, fully comply with all reasonable requests of that lender and pay all reasonable fees and costs connected to that application; or (3) agree to take back a purchase money mortgage from Buyer at the Settlement and at the then prevailing rate of interest in which case Buyer must go forward with the purchase and must execute all forms and documents reasonably required by K. Hovnanian to make the loan marketable in the secondary mortgage market. If a mortgage commitment is not obtained within sixty (60) days from the date of the second application, or if K. Hovnanian elects not to take back a mortgage, K. Hovnanian must return all deposit monies to Buyer without interest and this Agreement will be of no further effect. The issuance of a mortgage commitment to Buyer that conforms to the above terms constitutes full satisfaction of this Paragraph and Buyer is required to go forward with the purchase. If the mortgage commitment is later withdrawn, canceled, terminated or if it lapses for any reason, including but not limited to a change in Buyer's financial status (with the exception of loss of employment beyond Buyer's control) or Buyer's failure to satisfy any of the mortgage commitment's conditions or contingencies (including the sale or rental of Buyer's present residence), and Buyer fails to close title, Buyer will be in default of this Agreement. However, Buyer will not be in default if the mortgage commitment is canceled or terminated due to K. Hovnanian's failure to timely close title in accordance with this Agreement. Failure of Buyer to: (i) make timely application; (ii) cooperate fully with mortgage lender; (iii) satisfy all conditions and contingencies of the mortgage commitment; (iv) cooperate with K. Hovnanian's efforts to process a, second mortgage application, if applicable; (v) accept a reasonable mortgage commitment; or (vi) notify K. Hovnanian in writing, on or before the Mortgage Contingency Date that a mortgage commitment has been obtained; shall constitute an election by Buyer to waive the mortgage contingency and this Agreement shall be in full effect without any mortgage contingency. This means that Buyer must go forward with the purchase, even without a mortgage. If Buyer does not go forward with the purchase, Buyer is in default. 9. ASSIGNMENT Buyer cannot assign, sell or in any way transfer this Agreement or any interest in this Agreement. Any attempt to do so is a default of Buyer. 10. DEFAULT OF BUYER If Buyer fails for any reason to make payments, violates any of the terms of this Agreement or does not complete the purchase under this Agreement, Buyer will be in default. If the Buyer is in default, the. Seller may direct the escrow agent to release to Seller, without further approval required from Buyer, the payments made by Buyer, but not more than 10% of the purchase price, plus the amount of any options or upgrades requested by Buyer and installed by Seller. K. Hovnanian will retain this money either on account of the purchase price or as liquidated damages. Liquidated damages are a fixed amount paid to K. Hovnanian which the parties agree will be a reasonable estimate of the damages if Buyer defaults, since K. Hovnanian's actual damages are difficult to establish. If K. Hovnanian elects to retain money as liquidated damages, this Agreement will be of no further effect, and K. Hovnanian must return to Buyer all remaining money, if any. If Buyer starts a lawsuit against K. Hovnanian which includes a demand for return of any deposit monies paid under this Agreement and a court finds that Buyer is entitled to the return of all deposit monies paid, K. Hovnanian will also be responsible for Buyer's reasonable attorney fees and costs of litigation if Buyer is one hundred (100%) percent successful in its suit. If the court finds that K. Hovnanian is entitled to retain any of the deposit monies or if Buyer is otherwise unsuccessful in Buyer's lawsuit, Buyer will also be responsible for K. Hovnanian's reasonable attorney fees and costs of suit. 11. IC. HOVNANIAN'S INABILITY TO DELIVER DEED If Seller's title proves unmarketable, or if Seller does not construct, complete or convey the home referred to in this Agreement within six (6) months of the Estimated Completion Date, Buyer may elect to cancel this Agreement. This must be done by serving written notice of cancellation upon the Seller within fifteen (15) calendar days after the date which is six (6) months following the specified Estimated Completion Date. In the event that Buyer elects to cancel this Agreement, Seller's sole obligation shall be to return all deposit monies paid under this. Agreement, without interest, and reimburse Buyer for the actual costs of title search and survey, if any, and this contract shall become null and void. If this Agreement is not cancelled as described in this paragraph, then this Agreement shall remain in full force and effect and Seller will not be responsible for any expenses which the Buyer might incur as a result of the delay in Settlement. If the delay in constructing, completing or conveying the home referred to in this Agreement within six (6) months of the Estimated Completion Date is caused by events beyond the control of the Seller, this Agreement shall be extended until such time as the delay is corrected, .unless otherwise limited by the next paragraph. By way of compliance with the Interstate Land Sales Act, the Seller states that this Agreement is for the sale 'of a home on improved land that the Seller is obligated to erect within a period of two years from the execution of this Agreement, unless Acts of God or other events or circumstances that constitute a defense under applicable state law to performance under a contract would permit the Seller to extend that period. If the Seller fails to erect the home as and when described in this paragraph, then, notwithstanding any provision of this Agreement to the contrary, , the Buyer shall have any remedy at law or in equity. 12. SITE VISITS/PRE-OCCUPANCY INSPECTION No Buyer or contractor designated by Buyer shall be allowed to do any work whatsoever in any home prior to Settlement of title. Due to safety and insurance regulations, site inspections by Buyer must be by appointment and by Seller's representative. Buyer assumes all liability for any damage or injuries that occur as a result of any visit. It is expressly agreed that a breach of this paragraph shall constitute default under this Agreement. Prior to Settlement of title, Seller will specify the time and date for a Pre -Settlement Orientation of the property by Buyer.. Said orientation shall be within a reasonable period of time prior to Settlement. Those outstanding items which may be required to be completed or repaired will be entered on a Pre -Settlement Orientation form and completed on or before the Settlement Day Orientation, if possible in Seller's discretion. Those items which cannot be completed, in Seller's discretion, on or before the Settlement Date will be repaired or completed as soon as possible after Settlement and shall not prevent Settlement of title. 13. SETTLEMENT CHARGES AND ADJUSTMENTS Buyer shall be responsible for all costs associated with Settlement, including, but not limited to one- half of the Pennsylvania Realty Transfer Tax. Taxes, assessments, association fees, water and sewer are to be apportioned at Settlement. 14. SETTLEMENT Settlement will occur as soon as possible after completion of the home at the time, date and place set by K. Hovnanian in a notice (either oral or written) to Buyer. When so scheduled, the date and time of Settlement is "OF THE ESSENCE". This means that Buyer's failure to close at the set time is a breach and default of this Agreement. If K. Hovnanian elects to send written notice of the time, date and place of Settlement to Buyer, such written notice shall be sent to the Buyer's address set forth on the Summary of Basic Provisions. Buyer must notify K. Hovnanian of any changes to Buyer's address or telephone number, and failure to notify K. Hovnanian of such changes is a breach and default of this Agreement. The Estimated Completion Date, is stated on the Summary of Basic Provisions. Seller shall not. schedule Settlement more than two weeks prior to the Estimated Completion Date unless Buyer consents. Completion is evidenced by a temporary or permanent Certificate of Occupancy issued by the municipality. Buyer will close title even if all site or other improvements are _ not complete. No funds will be escrowed if the improvements or the .pre- occupancy inspection report items are incomplete. If Buyer is unable or refuses to close on the date and time specified by K. Hovnanian, or if K. Hovnanian is unable to schedule Settlement due to Buyer's failure to notify K. Hovnanian of a change to Buyer's address or telephone number, at its option, K. Hovnanian may exercise its rights in Paragraph 10 of this Agreement or have Buyer reimburse K. Hovnanian at or before Settlement for K. Hovnanian's total reasonable carrying and administrative costs for postponing the Settlement to another time, date and place set by K. Hovnanian. Buyer agrees that K. Hovnanian may cancel any Time of the Essence Settlement without penalty. 15. TITLE AND POSSESSION. At the Settlement, Buyer will be given possession of the home and K. Hovnanian will deliver a Special Warranty Deed, an Affidavit of Title and Corporate Resolution upon receipt of the full purchase price. The willingness of Governor's Abstract Company, 1 Industrial Way West, Eatontown, NJ 07724, as agent for First American Title Insurance Company, to insure title to the home establishes good and marketable title. Buyer is not obligated to obtain title insurance from Governor's Abstract Company, which is affiliated with K. Hovnanian. Title shall be free from all liens and encumbrances except the following: * restrictions, reservations, covenants, agreement or easements of record; * any state of facts an accurate survey would reveal; • zoning regulations, restrictions, or the Declaration for the Condominium, as applicable; and * mortgages or liens which may be satisfied at Settlement. 16. FIRE AND OTHER CASUALTY The risk of loss or damage to the home by fire or otherwise until Settlement is on K. Hovnanian. 17. LICENSE Buyer hereby authorizes and grants to K. Hovnanian the irrevocable right to enter into, upon, over or under the home and the property for a period of two (2) years after the date of Settlement on prior notice to Buyer and at reasonable hours (except in cases of emergency) for the completion of construction, repair, emergency matters or pursuant to governmental order or requirement. This provision shall survive Settlement. 18. INSULATION In compliance with Federal Trade Commission Regulations Rule 16 C.F.R. Part 460, the following information concerning insulation in your home is furnished. (A) The Seller installs fiberglass batt type insulation which is manufactured to have an R value of R-13 in outside walls loose fill or batt - type fiberglass insulation with an R-38 rating in ceilings below attic space. (B) For slab on grade floors, the Seller installs %2" or greater rigid foam perimeter insulation which is manufactured to have a minimum R value of R-5 downward to the bottom of the slab, then horizontally beneath the slab for a minimum distance of 24 inches. The primary entrance door is an insulated door and is fully weather stripped. Windows and sliding doors are dual glazed low E thermo break equipped, except for windows in basements and garage doors. Anti air filtration measures taken include the installation of a sill seal. (C) The manufactured thickness of the above types of insulation is as follows: R-13 fiberglass batt is 3 5/8"; R-38 fiberglass loose fill is 13"; R-30 fiberglass batt is 9"; rigid foam perimeter foundation insulation is '/z" or greater. 19. ANTI -SPECULATION In order to discourage speculation and to provide a stabilized community of primarily owner - occupied homes, K. Hovnanian desires to sell homes only to buyers who will own the Property for a period of at least one (1) year. Therefore, in order to induce K. Hovnanian to agree to sell the Property to Buyer, Buyer represents and agrees as follows: a) Ownership of Home for One (1) Year. Buyer represents and warrants to K. Hovnanian that Buyer shall not assign or attempt to transfer Buyer's rights under the Agreement or enter into any other type of contract for the sale or other transfer of the home which would result in Buyer's failure to hold title thereto in fee simple and own the home for a period of at least one (1) year from the Settlement of Buyer's purchase of the home (herein referred to as the "Ownership Period"). The provisions of this paragraph and the accuracy of the above representations and warranties constitute a covenant of Buyer and a condition precedent to K. Hovnanian's performance under the Agreement. b. Transfer Prior to Settlement. Any assignment by Buyer or attempt to assign Buyer's rights under the Agreement and sell or otherwise transfer the home prior to Settlement for the sale of the home shall constitute both (a) a material breach of the Agreement, entitling K.. Hovnanian, at its sole election, to terminate the Agreement and retain Buyer's deposit pursuant to the terms of the Agreement, and (b) the failure of a condition precedent to K. Hovnanian's obligation to sell the home to Buyer. K. Hovnanian's remedies are not limited to prior to the Settlement of home to Buyer. If Buyer breaches the provisions of this Agreement and Buyer closes, K. Hovnanian shall thereafter be limited to the remedies under Paragraph 19.c., below. c.. Transfer Subsequent to Settlement. Except for "hardship" situations as described in Paragraph 19.g., below, any sale or other transfer by Buyer under which Buyer transfers fee simple title to the home prior to the expiration of the Ownership Period shall constitute a material breach of the Agreement. Any such material breach shall entitle K. Hovnanian to recover from Buyer any and all damages, including reasonable attorney's fees, arising from Buyer's breach. d. No Unreasonable Restraint. Buyer acknowledges that the purpose of this Agreement is to comply with K. Hovnanian's intention to sell homes only to buyers who will actually retain ownership of their homes during the Ownership Period thereby preventing speculative purchases and stabilizing property re -sales for permanent residents. Buyer agrees that the provisions and restrictions set forth in this Agreement do not constitute an unreasonable restraint upon alienation of the home being purchased. e. Survival; Severability. All of the covenants contained herein shall survive the delivery and recordation of the deed conveying the Property from K. Hovnanian to Buyer. The provisions of this Agreement shall be independent and severable, and a determination of invalidity or non -enforceability or partial invalidity or enforceability of any one provision or portion hereof shall not affect the validity or enforceability of any other provision of this Agreement. f. Subordination. Buyer hereby acknowledges and agrees that a violation of this Agreement by Buyer shall not defeat or render invalid the lien of any first mortgage made in good faith and for value by Buyer, and that the covenants and provisions of this Agreement shall be inferior and subordinate to the lien of any such first mortgage recorded concurrently with the deed conveying the home to Buyer. Hardship. The following events shall be deemed to constitute "hardship" situations under which Buyer may sell, transfer, or assign (collectively, "a Transfer") its right, title and interest in the home prior to holding title to, and occupying, the home for a period of one (1) year from Settlement. g. i. A Transfer resulting from the death of Buyer; ii. A Transfer by Buyer where the spouse of Buyer becomes the only co-owner of the home with Buyer; iii. A Transfer resulting from a decree of dissolution of marriage or legal separation or from a property settlement agreement incident to such decree; iv. A Transfer by Buyer into a revocable inter vivos trust in which Buyer is a beneficiary; v. A Transfer, conveyance, pledge, assignment or other hypothecation of the home to secure the performance of an obligation, which transfer, conveyance, pledge, assignment or hypothecation will be released or reconveyed upon the completion of such performance; vi. A Transfer by Buyer where necessary to accommodate a mandatory job transfer required by Buyer's employer (not including Buyer, if Buyer is self- employed); vii. A Transfer necessitated by a medical or financial emergency, proof of which - emergency has been delivered to K. Hovnanian, and has been approved by K. Hovnanian in its reasonable discretion; viii. A Transfer which, in the reasonable judgment of K. Hovnanian, constitutes a "hardship" situation consistent with the intentions of this Agreement 20. WARRANTIES K. Hovnanian will provide, at its own expense, a Home Builder's Limited Warranty administered by a professional warranty service corporation. K. Hovnanian warrants the construction of any common facilities for a period of two (2) years from the date of completion of each facility and that they are fit for their intended use. K. Hovnanian warrants the following to be free from material and workmanship defects for a period of one (1) year from the date of possession or Settlement: outbuildings, driveways, walkways, patios, retaining walls and fences, if any. K. Hovnanian warrants that the home is fit for its intended use. THE FOREGOING WARRANTIES ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. K HOVNANIAN NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE HOME (LE., THE RESIDENTIAL BUILDING AND RELATED IMPROVEMENTS) SOLD HEREUNDER, AND THERE ARE NO AGREEMENTS OR WARRANTIES, EITHER ORAL OR WRITTEN, COLLATERAL TO OR AFFECTING THIS AGREEMENT. 21. K. HOVNANIAN'S AGENT Buyer acknowledges that K. Hovnanian's sales staff works only for K. Hovnanian and has legal obligations, called fiduciary duties, to K Hovnanian. These include reasonable care, undivided loyalty, confidentiality and full disclosure. 22. ENTIRE AGREEMENT/REPRESENTATIONS This Agreement, the Public Offering or General Information Statement, the approved site plans and architect's plans, and any Riders to this Agreement or the Documents, contain the parties' entire agreement. Any modification of this Agreement is not binding unless it is in writing and signed by both Buyer and K. Hovnanian. This Agreement is binding on and inures to the benefit of the parties' respective heirs, successors, administrators and executors. Neither this Agreement nor any document referencing this Agreement may be recorded in any public office. Violation of this Paragraph is a material default of this Agreement. Buyer represents that they understand that K. Hovnanian may sell similar homes at prices higher or lower than this home's price. If a court of competent jurisdiction determines any part of this agreement to be unlawful, the parties agree that it is their intention that the unlawful section of the agreement shall be removed from the agreement and the remaining portions of the agreement shall remain in full force and effect. 23. NO MODIFICATIONS IN ORDER TO EXPEDITE THE CONSTRUCTION AND DELIVERY OF YOUR HOME, K. HOVNANIAN WILL NOT AGREE TO ANY MODIFICATIONS TO THIS AGREEMENT. BUYER SHOULD CONSULT AN ATTORNEY REGARDING THE RIGHTS AND OBLIGATIONS OF BUYER AND K. HOVNANIAN UNDER THIS AGREEMENT. BUYER ACKNOWLEDGES RECEIPT OF A COPY OF THE PUBLIC OFFERING STATEMENT OR GENERAL INFORMATION STATEMENT, AS APPLICABLE. IN WITNESS WHEREOF, the parties hereunto have set their hands and seals the day and year written below. Seller: K HOVNANIAN AT , L.L.C. BY: Authorized Representative Date: 1/a 7/i oyer date date Buyer EMSL Analytical, Inc. 521 Plymouth Road, Suite 107 Plymouth Meeting, PA 19462 Phone/Fax: (610) 828-3102 / (610) 828-3122 EMSL Order ID: 181202266 Customer ID: JEME64 Customer PO: cc 108010 Project ID: Attn: Erick Jensen JEM Enterprise, LLC 141 West Louther Street Carlisle, PA 17013 Proj: Bickmire Phone: Fax: Collected: Received: Analyzed: (717) 245-8543 (717) 245-2582 10/07/2012 10/12/2012 10/16/2012 Test Report: Microscopic Examination of Fungal Spores, Fungal Structures, Hyphae, and Other Particulates from Bulk Samples (EMSL Method: M041) Lab Sample Number. Client Sample ID: Sample Location: 181202266-0001 #1 Office Drywall Spore Types Category Agrocybe/Coprinus Altemaria Ascospores As Basidiospores Bipolans++ Chaetomium Cladosporium Curvularia Epicoccum Fusarium Ganoderma Myxomycetes++ Paecitomyces Rust Scopulariopsis Stachybotrys Torula Ulocladium Unidentifiable Spores Zygomycetes Aureobasidium I.. - - - - - - - *High* - - - - - - _ .. - - - - - - - *High* Fibrous Particulate Hyphal Fragment Insect Fragment Pollen - - - Category: Count/per area analyzed Rare: 1 to 10 Low: 11 to 100 Medium: 101 to 1000 High: >1000 Bipolaris++ = Bipolaris/Dreschlera/Exserohilum Myxomycetes++ = Myxomycetes/Periconia/Smut • = Sample contains fruiting structures and/or hyphae associated with the spores. Michael Thoma, Laboratory Manager No discemable field blank was submitted with this group of samples. or Other Approved Signatory EMSL maintains liability limited to cost of analysis. This report relates only to the samples reported above and may not be reproduced, except In full, without written approval by EMSL. EMSL �^�•� ^^ responsibility for sample collection activities or analytical method limitations. Interpretation of the data contained in this report is the responsibility of the client " denotes not detected. Sam condition unless otherwise noted. `Samples analyzed by EMSL Analytical, Inc. Plymouth Meeting. PA (Report amended: 10/18/2012 15:20:06 Replaces initial report from:10/16/2012 11:35:41 Reason Code: Client -Change to Sample ID For Information on the fungi listed in this report please visit the Resources section at www.emsl. Test Report DEVER1-7.26.0 Printed: 10/18/2012 03:20:06PM EXHIBIT AERobio1ogy LAboRAT©Ry Certificate of Analysis ASSOCWES, INCORPORA� EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 . (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester, Project : 5458-.Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 1 of 7 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number Non -Viable Same Day TAT Spore: SOP 3.8 10 -19 -PL -02 2nd FI 150 12013574-002 10 -19 -PL -01 Out #1 60°F Light Rain / Mist 150 12013574-001 Spore Identification Raw Ct spr/ma % Ttl In/Out Raw Ct sprlma % Ttl In/Out A ter iar4a°'w ascospores asidiospores ::. Cercospora IadosporiUrit; Curvularia Epicoccum hyphal elements Penicillium/Aspergillus group rusts sm uts, Periconia, myxomycetes Stachybotrys unknown 8 53 2 .2453 7 1128 1 55 1467 10 115.3 2 11 24 :46 4 13 13 73 60, 160 307 27 7 Debris Rating 3* 1,3 j 23/1 1 1 7 Debris Rating 2* Analytical Sensitivity: 7 Total 160 . 3213 -100% 114.5 Analytical Sensitivity: 7 131 14561 % EXHIBIT AERobiologyAboRAToRy Certificate of Analysis --.�-` ASSOCIATES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 2 of 7 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number Non -Viable Same Day TAT Spore: SOP 3.8 10 -19 -PL -03 Conservatory 150 12013574-003 10 -19 -PL -01 Out #1 60°F Light Rain / Mist 150 12013574-001 Spore Identification Raw Ct spr/ma % Ttl In/Out Raw Ct spr/m' % TtI In/Out Altemaria ascospores basidiospores Cladosporium clear brawn. Curvularia hyphal elements Penicillium/Aspergillus group Pithornyces rusts sm uts, Periconia; myxomycetes Stachybotrys 14 66_ 13 1 7.. 26 .3. 6 17 6 7 93 1760 87 7 47. 173 40 11,3._ 40 4 74 4 2 7 2 2 Debris Rating 3* 3.7/1 5.7/1 55 1467 6112993 89 6 40 10 7 1 47 7 Debris Rating 2* Analytical Sensitivity: 7 Analytical Sensitivity: 7 Total 161 2394 -100% 1/6.1 131 14561 -100% �1ERO�1®�OGY t AboRATORy Certificate of Analysis -� ASSOCIATES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 3 of 7 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number Non Viable Same Day TAT Spore: SOP 3.8 10 -19 -PL -04 Fam Rm 150 12013574-004 10 -19 -PL -01 Out #1 60°F Light Rain / Mist 150 12013574-001 Spore Identification Raw Ct sprit!? % TtI In/Out Raw Ct spr/m° % TtI In/Out Altemaria:. ` .. ascospores basidiospores Cladosporium `:. Eprcoccum Helicosporium/Helicomyces hyphal elements` Penicillium/Aspergillus group Pithomycea. rusts smuts,Periconia;myxomycetes.. Torula 11 .52 8 1 15 1;•:: 6 9.. 1 7 73 2773 53 7 33. 100 7. 40 60 7 Debris Rating 3* 2 8 2 3 1 2.1/1 5.7/1 6 7 1 1467 • 12993.. 40 47 7 10 Debris Rating 2* 1 Analytical Sensitivity: 7 Analytical Sensitivity: 7 Total 111 3167 -100% 1/4.6 131 14561 -100% AERobiology LAboRAToRy Certificate of Analysis ASSOCWIFS, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 5 of 7 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number Non -Viable Same Day TAT Spore: SOP 3.8 10 -19 -PL -06 Out #2 150 12013574-006 10 -19 -PL -01 Out #1 60°F Light Rain / Mist 150 12013574-001 Spore Identification Raw Ct spr/m3 % Ttl 'In/Out Raw Ct spr/m3 % Ttl In/Out AIterraria ::. ascospores basidiospores.:. Cladosporium : •Epicoccum hyphal elements . Monochaetia Penicillium/Aspergillus group rusts smuts, Pericon ia, myxomycetes 12 4790 69 : ". , 27545 .84 - 2.1/1 4 107 1 •7.. 2 13 7.. 7 187 ,13... 16 107 Debris Rating 2* 15 3.3/1 1 2.7/1 4.0/1 '1.9/1.: 1 • 55 6 7 1467 1.299: 40 47 7 10 Debris Rating 2* Analytical Sensitivity: 7 Analytical Sensitivity: 7 Total 114 32776 -100% 2.3/1 Client Sample Number. 10 -19 -PL -07 Sample Location: OSB #1 Test Requested: 1051 Tape, Same Day TAT: SOP 3.7 Results: Occasional smuts,P.ericonia,myxomycetes spores seen Debris Rating 3*** 131 14561 -100% Lab Sample Number: 12013574-007 Laboratory Observation 1-5 per cover slip**. AERobioEogy LboRAToRy Certificate of Analysis -�—� ASSOCIATES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickrnire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 6 of 7 Client Sample Number. 10 -19 -PL -08 Sample Location: OSB #2 Test Requested: 1051 Tape, Same Day TAT: SOP 3.7 Results: Occasional clear brown spores seen Debris Rating 3"** Lab Sample Number: 12013574-008 Laboratory Observation 1-5 per cover slip" " . %AERobioEocjy LAbORATORy Certificate of Analysis —®-� ASSOCIATES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 7 of 7 Footnotes and Additional Report Information Debris Rating Table 1 Minimal (<5%) particular present Reported values are minimally affected by particulate load. 2 5% to 25% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is occluded. 3 26% to 75% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is occluded. 4 75% to 90% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is occluded. 5 Greater than 90% of the trace occluded with particulate Quantification not possible due to Targe negative bias. A new sample should be collected at a shorter time interval or other measures taken to reduce particulate load. 1. Penicillium/Aspergillus group spores are characterized by their small size, round to ovoid shape, being unicellular, and usually colorless to lightly pigmented. There are numerous genera of fungi whose spore morphology is similar to that of the Penicillium/Aspergillus type. Two common examples would be Paecilomyces and Acremonium. Although the majority of spores placed in this group are Penicillium, Aspergillus, or a combination of both. Keep in mind that these are not the only two possibilities. 2. Ascospores are sexually produced fungal spores formed within an ascus. An ascus is a sac-like structure designed to discharge the ascospores into the environment, e.g. Ascobolus. 3. Basidiospores are typically blown indoors from outdoors and rarely have an indoor source. However, in certain situations a high basidiospore count indoors may be indicative of a wood decay problem or wet soil. 4. The Smut, Periconia, Myxomycete group is composed of three different groups whose spores have similar morphologies. Smuts are plant pathogens, Periconia is a relatively uncommon mold indoors, and Myxomycetes are not fungi but slime molds. Although these organisms do not typically proliferate indoors, their spores are potentially allergenic. 5. The colorless group contains colorless spores which were unidentifiable to a specific genus. Examples of this group include Acremonium, Aphanocladium, Beauveria, Chrysosporium, Engyodontium microconidia, yeast, some arthrospores, as well as many others. 6. Hyphae are the vegetative mode of fungi. Hyphal elements are fragments of individual Hyphae. They can break apart and become airbome much like spores and are potentially allergenic. A mass of hyphal elements is termed the mycelium. Hyphae in high concentration may be indicative of colonization. 7. Dash (-) in this report is reported as "not detected" (ND) or "<" (less than) with reference to the reportable limit. 8. The positive -hole correction factor is a statistical tool which calculates a probable count from the raw count, taking into consideration that multiple particles can impact on the same hole; for this reason the sum of the calculated counts may be less than the particle hole corrected total. 9. Due to rounding totals may not equal 100%. 10. Minimum Reporting Limits (MRL) for BULKS, DUSTS, SWABS, and WATER samples are a calculation based on the sample size and the dilution plate on which the organism was counted. Results are a compilation of counts taken from multiple dilutions and multiple medias. This means that every genus of fungi or bacteria recovered can be counted on the plate on which it is best represented. 11. If the final quantitative result is corrected for contamination based on the blank, the blank correction is stated in the sample comments section of the report. 12. Analysis conducted on non-viable spore traps is completed using Indoor Environmental Standards Organization (IESO) Standard 2210. 13. The results in this report are related to this project and these samples only. Terminology Used in Direct Exam Reporting Conidiophores are a type of modified hyphae from which spores are bom. When seen on a surface sample in moderate to numerous concentrations they may be indicative of fungal growth. Suzanne S. Blevins, B.S., SM (ASCP) Laboratory Director Q GARDEN STATE SOLID SCIENCE 10/11 ENVIRONMENTAL VIA E-MAIL AND U.S. MAIL July 26, 2013 Mr. Nate Patterson Homeowner Service Manager K. Hovnanian Edison Group Homeowner Service 110 Fieldcrest Avenue Edison, NJ 08837 Re: Final Mold Clearance Report Bickmire residence K. Hovnanian's Bella Vista 51 Bella Vista Drive Mechanicsburg, PA 17055 Dear Mr. Patterson: PRACTICAL S01.1117ONS This represents our final report for the above referenced mold remediation• project. This report documents the results of our exterior clearance inspection that was conducted on June 27, 2013 (all exterior elevations) and the interior clearance inspection completed on July 16, 2013. All inspections were completed by Peter Lesniak of Garden State Environmental, Inc. (GSE). During the exterior clearance inspection on the front, left side, right side, and rear elevations of the home (stone and/or stucco), all previously impacted building materials identified were either removed, or cleaned, disinfected, and treated, as required. Moisture mapping (using a Delmhorst TotalCheck moisture meter) did not identify any elevated moisture levels, all readings were 18% or less. All impacted exterior elevations of the home were cleared for re -construction as stated in our Preliminary Exterior Clearance E-mail issued on June 28, 2013. The mold remediation contractor, Consolidated Environmental, Inc. (CEI), completed the interior abatement work in accordance with the instructions we provided in our June 28, 2013, Exterior Clearance and Interior Recommendations E-mail. The impacted interior areas within the garage work area and surrounding areas were found to be free of visible dust, debris, and were suitable to proceed with clearance testing. I. CLEARANCE SAMPLING METHODS: Microbial Sampling Currently there is no standardized sampling technique and analytical method to uniformly identify and quantify the different species and genera that occur in the biological diversity of the microbiological world. 555 BR0P.0 SWEE1. K CLEN HOCK, NJ 07452 R (201)-652-1119 IAIWN.GSECONSULTANTS..COM F. (2011-652-0612 EXHIBIT AEitobio10 3ORATOti �`y : �: Y Certificate of Analysis OQAlES. - INCORPORATED EMLAP# 102977 EgeirtEae Sue 1997 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wolf Project : 5624 - Staretz - Condition of Sample(s) Upon Receipt: Acceptable Date Collected: 06/26/2013 Date Received: 06/27/2013 Date Analyzed: 06/27/2013 Date Reported: 06/27/2013 Project ID: , 13008389 Page 3 of 5 Non -Viable Same Day TAT Spore: SOP 3.8 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number • 6 -26 -PL -04 Out #2 150 13008389-004 6 -26 -PL -01 Out #1 82°F , 150 13008389-001 Spore identification Raw Ct sprlm3 % TtI In/Out Raw Ct spr/m3 % Ttl In/Out t „a.tern': ' , ._„.f"...'.ter'-.r�3xa:.t.cy3�._r..vr-.�u�*.vs!: -: cb,y.3xk,.x�y.z. xaa_.Lr. x....,..rl3c ascospores '.' : ' S«35."'^ :. .n, fIt'SY M L' } S ('� d� �- - }� � stdtospores E . S' -. Botrytis �P�i .i' P 4 t3-k3`i�',,,.,F,.,i.3 p r• d, ii Cladosporium 7FTc �T^ 4 '�F Y t Y � ri..'. a..r_fG.r«2-::.f-.,Y_.. ....7.- "J�'r(�.-�Mn's �f .: Curvularia .vi '% ..:=:.c ,,_r�..+t_.:e.B1osgoc,p Epicoccum i YR .s_+,.;r•�� ,r� _,;�-`rHl. xi.:s-��-.�•axz•�.>.....�._,ns' am:��.vN«..a.u l0�J ..ra�rm: .:du.3vsT7:W�}..raT7 ' .r�:. -Z__.„_�_' _•.�'.d__.+.rn �,ia� �."-.t�,.tz�..�.��1'Y:s�-E1 , �2y=r 37 1973 7 1.4/1 F -ud ..�i3l.- fiYSL �y ..—�.ir�- 26 1387 5 - .' >i}. 1 H 2 b2 Yr22222 � 376;94'1 011 i ..yam. . ., i -i' "' +f - T�_-Y �..+.. 50 X213 8 � � 8 " � wi .. �.�..Cri...�'.._�'m..._..uT il.sro v.r.L.r?.LYn�1R.�' 1 7 - - - 2-. t.CMr^=.2dfl"i'�— d' }��'s...:.:.r.�''.f�yw".t.��3:,'�:.7���s�`..�=: 60 3200 12 - - - 4' a'..,, - - - - ms_�� y 7 47. - 4' u 9.,.., t`-= 1 7 - - _-%� -_ .1.-'4..Y . F ._ .. a` `. fr7,er n ' F .�� fi ..�.s,'..;.''fix,,..'!-'� �x '3• 4�'`«. "arX.... - - 3 20 r.: s_ ,..+. -em- s? ,,,..: 3 20 - - T-4ite'r t�'��" _..v'...'z 1 r F`.. 1- M'�d N�'� � �-- �'- -+-. . 2 +`- 3E }:- 'T` ._.a..�3'�.dfri'�uv<+..x . -_:.r 18 120 `wy. a2_r �_Te ._..- r_c ��ii__'_��.u•' 1 7 - 1.0/1 ' :Y' ^n'-.�'"".-.: 4 _ -: 90 4800 16 1.5/1 r --. 1 k --_ -5, :fi '{vr t, 7 ,� } i ., , :_ � __ r r ..✓.F'r .'{" %' 'v-�.-..e F -..r .f r..11..,Nd.._..-. 1 7 - - , ` .s_ t=fr .:1x. 5 33 - 1/1.4 9.•�. �4 vdi >_ !.." d+st,r;.: 'z. c.r•,rtli0 - - - - �. `„ it - �" i. - �xr .v�' �+r3+"� r,�r 0 , yr n xr f,.,? x.? _..« � .: if....2. _..,,i i .,,.V...r_ .., '�:'� :.a, T.,s�, ar ..t, �w a; s.-: i E'..� - - - Helicosporium/Helicomyces ,+ af) a�*k+f` f {'' ..: 3 - ✓ N, •?.: *,- r - r i -' t yphal e.,I�e ir• t+ tiR h f� f ,,..,;,. � _ ... __. t-_. .....,.�—..,,:..Y . _3....:}:..,_. x� . �'"_., ., Oidium : __di r eryP0,�:=�- .vra4•. ry..�ua ,,. -� Pithomyces- n -:-:::r a-waery,. a� 3:Gr±--x_ .n_.wa::e.•-_ _.. ,x-. _ar-rr: -. - - a mx .-:-,:,vr smuts,Periconia,myxomycetes i°';f ry. _ � p -s:' i' i -'•� N e f �. �' )� .,rx a �.� c. �•'j��/y Jf- .'. ' 1 �f.:f � , iflRi'i'vci—• ( p s. ..a..: '.t-rt.a 7 f 16 - - - ^"J rt{4uyy a'+"Ar Se„'}i.t - 5 33 - 1/3.6 1 -� � T "y" - 'moi' �.i� � Z .i i � �� .,,t :4w .l wk }..A Debris Rating 2* a- .,^m^w s^^=, �- �T•�� M1 ,. �� 'T `�. aS � C' �--� 4i1',�'i{S i. �- �.� "�i Ay.'tF . Debris Rating 3* Analytical Sensitivity: 7 spr/m3 Analytical Sensitivity: 7 spr/m3 Total 235 29369 --100% 1.1/1 I 212 26462 -100% AE Robioloqy A LAb0RATORy Certificate of Analysis ASSOCIATES, CORPORAIED EMLAP# 102977 % EzArtriee geoce 1997 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wotf Project : 5624 - Staretz Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 06/26/2013 06/27/2013 06/27/2013 06/27/2013 13008389 Page 2 of 5 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number Non -Viable Same Day TAT Spore: SOP 3.8 6 -26 -PL -03 In BR Contain 150 13008389-003 6 -26 -PL -01 Out #1 82°F 150 13008389-001 Spore Identification Raw Ct spr/m3 % Tti In/Out Raw Ct spr/m3 % Ttl In/Out 4Altemaria 44,71MV.L..t: ascospores basidiospores Botrytis Cercospora Cladosporium colorless 7-Et'rnigil--75!0?Wjg, Epicoccum Fusicladium Helicosporium/Helicomyces hyphalelements :o4-47.4:Y.:44,740:11.4•Tir414k4::.4a•1.;;,.4 Oidium Penicillium/Aspergillus grou Pithomyces smuts,Periconia,myxomycetes 6 22 1 40 33 147 7 • 11 1/35 26 1387 9 11648 50 " T4i.t4:34 7 ,.14;g4444,43;*:<!,44,14;,4; 444 41 1/22 1/6.7 1157 1 7 2 1/17 Debris Rating 3* 60 7 3 3 3200 4 47 7 20 113 20 5 12 • 120 Debris Rating 3* Analytical Sensitivity: 7 spr/m3 Analytical Sensitivity: 7 spr/m3 Total 54 360 —100% 1/74 212 26462 —100% Robi0E©C{:y ORATORY Certificate of Analysis ASS°a4lES' i RAIW EMLAP# 102977 3_ See 1997 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wolf Project : 5624 - Staretz Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 06/26/2013 06/27/2013 06/27/2013 06/27/2013 13008389 Page 1 of 5 Non -Viable Same Day TAT Spore: SOP 3.8 Client Sample Number .Sample Location Sample Volume (L) Lab Sample Number 6 -26 -PL -02 Out Contain 150 13008389-002 6 -26 -PL -01 • Out #1 82°F 150 13008389-001 Spore Identification Raw Ct spr/m3 % Ttl In/Out Raw Ct spr/m3 % Tti In/Out i r ��.ara- a .r-+' ascospores � pp 3�$pores f I t: ] Botrytis ��',��iv�� s' . :r.._.-.h�. Cladosporium . r r i .. Lh �a: .. ti. cru 'ar�' 'owrii ++�,, rc _... 4"i =1.u� ,..G(�iT k... n. -.!f .l£ colorless colorless Epicoccum �' s � i"' .� YC 7 }�usi Helicosponum/Helicomyces ` Lf r-' S`-,1 "y }».><' , , `�.,s� ins{' tib u rf t -_t_.......: ._:__ 6 40 7 1/35 �uQd�)�`#d ._{1 -.L r127 { Yi 11168 - - - - � , „ - �.r�f'{.. '.F:.a. ..�..� ... 35 - 233 41 1/14 t �'. 7 ,_ + . y *t ... ✓ . : � :.� �.,.X.+..:.� '.. v> 1 7 1 1/5.7 �s.�- �{ r ''! cSr , .:tr 4k .. C b �•' '�rL y -e3", f _:Yi'i'�F' i ✓!' .'S'Y^,� r- y"}>-'fi . -+ �d3. -.+9v .nyt x-ca'i-'..}•.'`-v.. -, .t :# -- ,,: 26 1387 5 - ,r 0 2 3 8 ! . '8i . .: :...!' '�r __�xe,+ '�..3'..1 '.?b._�7�'. ti,,biSG.-.w - 1 7 - ..�..r . .... -r. 60 3200 12 - v-7 ,� �. x '.1 : _ rvi 'S r•3 .--y Pf S�_ 1 L; ..:�vr.-�_.��' 6 40 - - -;. ',r Y4f - S cr't- r .r Lq' `,*T' ra°¢ .' - *� t 2+ Urs -`c-�"i'i'_cF.^.__ ..._v...L_ _•.5..._ - 2 13 2 1/3.6 ..t c. - ! ..' '+� Z---'' u"L•v'v'f -�'. _ ., 'i�{,� C � ° 1.•? 7 47 - - '•s eV' =' V Y' 7 3 �r� � �1y,, J?.¢ 1r t '_._c fti^y�sJ �v'�� ^lig'^+-L.`-..,,- .4t 1 7 - - 4.::.:.cv.__1..c;t...... t.�_ ..c.'_ri..3ic�._ +..rt.�..'..*?i' - - - - Yn s_ __034:T ,x:.5.. 3{'vp{'nx.. rr6 - - - - ... y u, P �t 2,8 s'�; ....:.c"rT, 1:. �� x i=� 1 7 1 i�.: t '. I.�{-� t K.. .:�: "_w J.:+,:: _ - - - - - r2. tt ..�. )r r„ r s i �t:;r ra a+ f -s- :" 1t k...� 'i ; ' P' # 1” ( ».._ _._.... ... �:. - f.2 _.:._ 5 33 6 1/3.6. Debris Rating 3* : J. -- r ,¢}��',,•':t. + -' r�` 3 20 - - �, y'"CS rpte,� 1�'r':r #". - - - - 1 .,'�...v.r�•a C'i. -eY.I' ___v`r. i`ryf 'C El-a'�mi +'.''�_': ',A 3 r 0 "rw>, -tom''_ s '!i` ..,r.'.�nom Oidium Pen erlliiunt / ergitkls group . �...+ir'S-f' _t_�"�'�--,<:..:. C_...:_ -. 4 „r7-�f+•L Pestalotiopsis -J,i' �:1.�. _'3,A 7 i 3,+,• —t 2 13 - - ry S ° d s,.� '. s- •er i r r "s, s- '=r„y .G r L}4' '+y,s ...,.A... Tit '.... ._........w: ..__....,.�W..0 .........vL._uuaI- 18 120 - - Debris Rating 3* Polythrincium ,.r, -� . i "4..� . 5� .� - ..yr +3 "'ri-�-t'% �'� i{ 1' 4 1 t .... _..' n...�.....�.:vi... ..._ � S muts,Periconia,myxomycetes Analytical Sensitivity: 7 spr/m3 Analytical Sensitivity: 7 spr/m' , Total 86 574 —100% 1/46 1 212 26462 —100% - Bickmire- Final Clearance Report - Bella Vista 7-26-2013, Page 8 APPENDIX I CERTIFICATE OF LABORATORY ANALYSIS Bickmire— Final Clearance Report — Bella Vista 7-26-2013, Page 7 #3 - Post abatement interior overview in garage work area. Bickmire— Final Clearance Report — Bella Vista 7-26-2013, Page 6 Digital Images: erior overviewat garage wall of concern. #2 — Post aba emen exterior overview below front door. Bickmire— Final Clearance Report — Bella Vista 7-26-2013, Page 5 As long as the remediated areas remain dry, mold concentrations should stay at an acceptable level and there should not be a reoccurrence of mold growth on susceptible building materials. IV. CONDITIONS AND LIMITATIONS: The findings described in this report are reflective of the conditions existent at the time of testing. In the field of microbiological and environmental sampling, various environmental parameters such as temperature, humidity, winds, may impact significantly the results. Changes in the environmental conditions can alter significantly the microbiological taxa with respect to both the types of microorganisms and their quantity. Our findings and conclusions must be considered probabilities based upon professional judgment concerning the significance of the limited data gathered during the course of investigation. The results and recommendations set forth by GSE in this report will be valid as of the date of the report and are limited to the site condition at the time of investigation. Respect1fi11y submitted, 9. JPI)! cii—eY Peter Lesniak, B.S., C.I.E. Industrial Hygienist PL/pl/r1 Enclosure Richard M. Lester, M.S. Sr. Industrial Hygienist President AERobio[ogy. #.A'1ORATORy Certificate of Analysis EMLAP# 102977 SI ASSOCIATES, • INCORPORATED �� a r e Seam t997 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877)648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wolf Project : 5624 - Staretz Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 06/26/2013 06/27/2013 06/27/2013 06/27/2013 13008389 Page 5 of 5 Footnotes and Additional Report Information Debris Rating Table 1 Minimal (<5%) particular present Reported values are minimally affected by particulate Toad. 2 5% to 25% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is ocduded. 3 26% to 75% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is ocduded. 4 75% to 90% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is ocduded. 5 Greater than 90% of the trace occluded with particulate Quantification not possible due to large negative bias. A new sample should be collected at a shorter time interval or other measures taken to reduce particulate load. 1. Penicillium/Aspergillus group spores are characterized by their small size, round to ovoid shape, being unicellular, and usually colorless to lightly pigmented. There are numerous genera of fungi whose spore morphology is similar to that of the Penicillium/Aspergillus type. Two common examples would be Paecilomyces and Acremonium. Although the majority of spores placed in this group are Penicillium, Aspergillus, or a combination of both. Keep in mind that these are not the only two possibilities. 2. Ascospores are sexually produced fungal spores formed within an ascus. An ascus is a sac-like structure designed to discharge the ascospores into the environment, e.g. Ascobalus. 3. Basidiospores are typically blown indoors from outdoors and rarely have an indoor source. However, in certain situations a high basidiospore count indoors may be indicative of a wood decay problem or wet soil. 4. The Smut, Periconia, Myxomycete group is composed of three different groups whose spores have similar morphologies. Smuts are plant pathogens, Periconia is a relatively uncommon mold indoors, and Myxomycetes are not fungi but slime molds. Although these organisms do not typically proliferate indoors, their spores are potentially allergenic. 5. The colorless group contains colorless spores which were unidentifiable to a specific genus. Examples of this group include Acremonium, Aphanodadium, Beauveria, Chrysosporium, Engyodontium microconidia, yeast, some arthrospores, as well as many others. 6. Hyphae are the vegetative mode of fungi. Hyphal elements are fragments of individual Hyphae. They can break apart and become airborne much like spores and are potentially allergenic. A mass of hyphal elements is termed the mycelium. Hyphae in high concentration may be indicative of colonization. 7. Dash (-) in this report, under raw count column means 'not detected (ND)'; otherwise 'not applicable' (NA). 8. The positive -hole correction factor is a statistical tool which calculates a probable count from the raw count, taking into consideration that multiple particles can impact on the same hole; for this reason the sum of the calculated counts may be less than the positive hole corrected total. 9. Due to rounding totals may not equal 100%. 10. Minimum Reporting Limits (MRL) for BULKS, DUSTS, SWABS, and WATER samples are a calculation based on the sample size and the dilution plate on which the organism was counted. Results are a compilation of counts taken from multiple dilutions and multiple medias. This means that every genus of fungi or bacteria recovered can be counted on the plate on which it is best represented. 11. If the final quantitative result is corrected for contamination based on the blank, the blank correction is stated in the sample comments section of the report. 12. Analysis conducted on non-viable spore traps is completed using Indoor Environmental Standards Organization (IESO) Standard 2210. 13. The results in this report are related to this project and these samples only. Terminology Used in Direct Exam Reporting Conidiophores are a type of modified hyphae from which spores are bom. When seen on a surface sample in moderate to numerous concentrations they may be indicative of fungal growth. Suzanne S. Blevins, B.S., SM (ASCP) Laboratory Director CERTIFICATE OF SERVICE AND NOW, this 10th day of November, 2014, I, Shannon Freeman, of ABOM KUTULAKIS, T .1" P, hereby certify that I did serve a true and correct copy of the foregoing Complaint by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Frederick J. Stellato, Esquire Norris, McLaughlin & Marcus, PA Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 Attorney for Defendant NORRIS, McLAUGHLIN & MARCUS, PA By: Frederick J. Stellato Identification No.: 37674 Saleem Mawji, Esquire Identificiation No.: 200125 Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 (610) 391-1800 DEC -3 PH 2:22 JURY TRIAL DEMAND.ED-i Attorney for Defendant ;11 NIA SYLVIA and BRIAN BICKMIRE, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. K. HOVNANIAN AT SILVER SPRING, LLC : NO.: 14-5733 PRELIMINARY OBJECTIONS OF DEFENDANT, K. HOVNANIAN AT SILVER SPRING. LLC TO PLAINTIFFS' COMPLAINT Moving Defendant, K. Hovnanian at Silver Spring, LLC ("K. Hovnanian" or "Defendant"), by and through its legal counsel, Norris, McLaughlin & Marcus, P.A., files the within Preliminary Objections to Plaintiffs' Complaint, and states as follows: FACTS 1. Sylvia and Brian Bickmire ("Plaintiffs") allege that they entered into a purchase agreement for a home located at 51 Bella Vista Drive, Mechanicsburg, Cumberland County, Pennsylvania on January 27, 2009. Compl. ¶ 4. 2. The home was allegedly built in 2006 and had been a model home for the neighborhood for approximately three years before the Plaintiffs' purchase. Compl. ¶ 5. 3. The Purchase Agreement for the home specifically excludes any warranty for mold and states that the home could contain mold. Purchase Agreement ¶ 6. 4. Plaintiffs bring a suit centered on the allegation that Mrs. Bickmire is suffering from health problems that could be related to mold found in her home. 5. The following causes of action have been asserted: (1) negligence; (2) breach of warranty of habitability; (3) breach of express warranty; (4) fraud; and (5) violation of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). STANDARD OF REVIEW 6. In considering preliminary objections, a "[c]ourt will sustain preliminary objections when it appears with certainty that the law permits no recovery." Bayada Nurses, Inc. v. Commonwealth, Dept. of Labor and Industry, 958 A.2d 1050, 1053 n. 4 (Pa. Commw. 2008) (citing Pennsylvania State Lodge, Fraternal Order of Police v. Commonwealth, 692 A.2d 609 (Pa. Commw. 1997)). 7. The court "need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion." Richardson v. Beard, 942 A.2d 911, 913 (Pa. Commw. 2008) (quoting Myers v. Ridge, 712 A.2d 791 (Pa. Commw. 1998)). PRELIMINARY OBJECTIONS I. Gist of the Action Doctrine 8. Counts I (negligence), IV (fraud), and V (UTPCPL) of the Complaint assert tort claims against the Defendant. 9. These claims should be dismissed because each of them are barred by the gist of the action doctrine. 10. Plaintiffs' negligence claim is barred by the gist of the action doctrine. A tort 2 claim is maintainable only if the contract is collateral to the action which is primarily tortiuous. White Oak Builders, Inc. v. East Penn Mortg. Co., LLC, 7 Pa. D & C. 5th 215, 219 (C.P. Monroe 2006). 11. In the instant action, the duty concerning the disclosure of mold is specifically addressed by the Purchase Agreement. 12. The Purchase Agreement unequivocally addresses the precise issue complained of - the possibility of mold. Purchase Agreement ¶ 6. 13. In fact, the mold disclosure consists nearly of half a page of information. 14. Paragraph 6 of the Purchase Agreement, in pertinent part, states the following: K. Hovnanian hereby informs Buyer that organisms commonly referred to as 'mold' may be present in the newly constructed home identified above at the time of Buyer's initial occupancy, or, if not present at the time of Buyer's occupancy may later develop within the interior of that home. This home is neither constructed nor warranted to be free of mold or other naturally occurring biological impurities. Purchase Agreement ¶ 6 (emphasis added). 15. Therefore, Plaintiffs' cannot successfully argue that the Purchase Agreement is collateral to this action where it is clear that the Purchase Agreement is central. 16. Plaintiffs' fraud claim is similarly barred by the gist of the action doctrine. 17. Here, Plaintiffs' fraud claim again rests entirely on the contractual disclosures relating to mold and construction identified within the four corners of the Purchase Agreement. Compl. ¶¶ 77-82. See Eastern Roofing Systems, Inc. v. Cestone, 24 Pa. D. & C. 5th 394 (C.P. Lackawanna 2012)(barring those fraud claims relating to the 3 fraudulent performance of contract -based duties). 18. The Purchase Agreement expressly states that "organisms referred to as 'mold' may be present" in the home. 19. Therefore, the duties related to mold disclosure are encompassed within the Purchase Agreement. 20. As such, Plaintiffs' fraud claim should be dismissed. 21. Plaintiffs' claim under the UTPCPL is barred by the gist of the action doctrine. Pursuant to the UTPCPL, it is unlawful to engage in "unfair methods of competition" and. "unfair or deceptive acts or practices" in the conduct of any trade or commerce. 73 P.S. § 201-3. 22. Specifically, Plaintiffs' cite to only one provision in the UTPCPL: "Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made." 73 P.S. § 201-2(4)(xiv). 23. The Complaint, however, fails to explain how any warranty provided has been violated. 24. As discussed above, Paragraph 6 of the Purchase Agreement specifically excludes any warranty regarding mold or other naturally occurring biological impurities. 25. Given the aforesaid language contained in the Purchase Agreement, it is clear that any plausible claim lies within the contract not within the UTPCPL. 26. Therefore, Plaintiffs' claim under the UTPCPL is barred. " WHEREFORE, Moving Defendant respectfully requests that this Court sustain this preliminary objection to Plaintiffs' Complaint and dismiss Counts I, IV, and V. 4 II. Breach of Habitability 27. Defendant incorporate paragraphs 1 through 26 as if the same were more fully set forth herein. 28. Plaintiffs have failed to assert a viable claim for breach of the implied warranty of habitability because the purchased home was not new. 29. In Pennsylvania, the implied warranty of habitability 'is implied by law into every contract for the sale of a new home' and is `triggered by a contract for a sale of a newly built home.' Barker v. Hostetter, 2014 WL 1464319, at *26 (E.D. Pa. April 15, 2014) (emphasis added) (internal citations omitted). 30. As Plaintiffs allege, the purchased home was built in 2006 and was used as a model home for nearly three years before its purchase on January 27, 2009. Compl. ¶¶ 4, 5. 31. Therefore, the implied warranty of habitability is inapplicable to the Plaintiffs' home and this cause of action must be dismissed. WHEREFORE, Moving Defendant respectfully requests that this Court sustain this preliminary objection to Plaintiffs' Complaint and dismiss Counts II. III. Breach of Express Warranty 32. Defendant incorporate paragraphs 1 through 31 as if the same were more fully set forth herein. 33. Plaintiffs' claim for breach of express warranty fails because they refer to a one (1) year warranty that is inapplicable to this matter. 34. Plaintiffs allege that "Defendant provided an Express Warranty at paragraph 5 20 providing a one (1) year warranty after possession that the property was free from defects." Compl. ¶ 74. 35. The only one year warranty referred to in paragraph twenty of the Purchase Agreement, however, states the following: "K. Hovnanian warrants the following to be free from material and workmanship defects for a period of one (1) year from the date of the possession of Settlement: outbuildings, driveways, walkways, patios, retaining walls and fences, if any." Purchase Agreement ¶ 20. 36. The plain language of this warranty clearly does not include a warranty for mold inside the home's walls. 37. Accordingly, Plaintiffs' have failed to state a claim for breach of express warranty. WHEREFORE, Moving Defendant respectfully requests that this Court sustain this preliminary objection to Plaintiffs' Complaint and dismiss Count III. IV. Fraud 38. Defendant incorporate paragraphs 1 through 37 as if the same were more fully set forth herein. 39. Here, the alleged misrepresentations were ultimately related to the mold in the home. Compl. ¶ 82. 40. However, Plaintiffs fail to state what representations were falsely made or contrary to the explicit disclosures made in the Purchase Agreement about the possibility of mold in the home. 41. Once again, Plaintiffs conveniently ignore the explicit disclosure in Paragraph 6 6 of the Purchase Agreement, which states that there may be mold in the home. 42. Therefore, Plaintiffs' critically fail to identify any false, material representation made by Defendants. WHEREFORE, Moving Defendant respectfully requests that this Court sustain this preliminary objection to Plaintiff's Complaint and dismiss Count IV. V. Attorneys Fees 43. Defendant incorporate paragraphs 1 through 42 as if the same were more fully set forth herein. 44. Attorney fees are not recoverable unless a statute or agreement between the parties provides for attorney's fees. 45. Here, Plaintiffs' cite to no contract or agreement that would authorize an award of attorney fees other than the UTPCPL. 46. Accordingly, Plaintiffs' demand for attorney fees should be stricken from every count except Count V. WHEREFORE, Moving Defendant respectfully requests that this Court sustain this preliminary objection to Plaintiffs' Complaint and strike Plaintiffs' request for attorneys fees from all count except Count V. NORRIS, MCLAUGHLIN & M US, P.A. B erick J. Stellat Saleem Mawji, Esquire Attorneys for Defendant, K Hovnanian at Silver Spring, LLC 7 CERTIFICATE OF SERVICE I hereby certify that I have forwarded a true and correct copy of the foregoing Preliminary Objections of Defendant, K. Hovnanian at Silver Springs, LLC, to Plaintiffs' Complaint, by first class mail, postage prepaid, on the date shown below to all interested counsel as follows: Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 Date: 1216/Of NORRIS, McLAUGHLIN & MARCUS, PA BY: F . - k J. Stellato, Esquire Saleem Mawji, Esquire Attorney for Defendant, K. Hovnanian at Silver Springs, LLC PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) SYLVIA and BRIAN BICKMIRE vs. K. HOVNANIAN AT SILVER SPRING, LLC No 5733 2014 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant, K. Hovnanian at Silver Spring, LLC, to Plaintiffs' Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jason P. Kutulakis, Esquire (Name and Address) 2 West High Street, Carlisle, PA 17013 (b) for defendants: Saleem Mawji, Esquire (Name and Address) 1611 Pond Rd., Suite 300, Allentown, PA 18104 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: 12/11/2014 ature Sgleem Mark j I ESlu.i v� Print your name Defendant Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. fq Cu 6'Q2/ .� )(11'°19 OM& LTULAKIS Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 Brandon S. O'Donnell, Esquire Attorney I.D. # 316575 2 West High Street Carlisle, PA 17013 (717) 249-0900 t ff PEf''- ,'iSy !,1,A IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION SYLVIA and BRIAN BICKMIRE Plaintiff v. K. HOVNANIAN AT SILVER SPRING, LLC Defendant Docket No.: 2014-5733 Civil Action — Law JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Defendant, K. Hovnanian At Silver Spring, L.L.C. c/o Frederick J. Stellanto, Esquire Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended 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. Date: vq. r Pennsylvania Bar Association Lawyer Referral Service 1-800-692-7375 (PA ONLY) or 717-238-6715 Respectfully Submitted, ABOM & KUTULAKIS, LLP ason P. Kutulakis, Esquire I.D. No.: 80411 Brandon S. O'Donnell, Esquire I.D. No.: 316575 2 West High Street Carlisle, PA 17013 Attorneys for Plaint OM& UTLILAKIS Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 Brandon S. O'Donnell, Esquire Attorney I.D. # 316575 2 West High Street Carlisle, PA 17013 (717) 249-0900 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION SYLVIA and BRIAN BICKMIRE Plaintiff v. K. HOVNANIAN AT SILVER SPRING, LLC Defendant Docket No.: 2014-5733 Civil Action — Law JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW, comes the Plaintiffs, Sylvia and Brian Bickmire, by and through their attorney, Jason P. Kutulakis, Esquire, and Brandon S. O'Donnell, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against the above-named Defendant, K. Hovnanian at Silver Spring, L.L.C., to recover damages, attorney fees and costs, in an amount to exceed the amount requiring arbitration, upon the following causes of action: Factual Background 1. Plaintiffs are Sylvia and Brian Bickmire, adult individuals, currently residing at 3429 Lochside, The Colony, Texas 75056. 2. Defendants are K. Hovnanian at Silver Spring, LLC, a limited liability company doing business in the state of Pennsylvania with corporate offices located at 110 West Front Street, Post Office Box 500, Red Bank, New Jersey 07701. (See Pennsylvania Department of State Business Filing, attached and marked as Exhibit A). 3. Plaintiffs entered into a purchase agreement with Defendants for a home located at 51 Bella Vista Drive, Mechanicsburg, Cumberland County, Pennsylvania on January 27, 2009. (See Purchase Agreement, attached and marked as Exhibit B). 4. The home Plaintiffs purchased from Defendants was built in 2006 and had been the model home for the neighborhood until Plaintiffs purchased the home on January 27, 2009. 5. Plaintiff, Sylvia Bickmire, worked from home full-time as a recruiter for Grifols. 6. Ms. Bickmire worked from home in a home office at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania. 7. While residing in the home, Plaintiff, Sylvia Bickmire, began experiencing health related issues for an unknown reason. 8. In August 2011, Plaintiff, Sylvia Bickmire, visited her primary care physician, Dr. Linda Decesare, for blood work as Ms. Bickmire was having severe joint pain, chronic fatigue, and depression without an ascertainable cause for those symptoms. 9. Ms. Bickmire's blood test results revealed a positive ANA test for Lupus at 80 dilute so she was referred to a Rheumatologist named Dr. Marcia Johnson. 10. Simultaneously, Ms. Bickmire was experiencing stomach related issues including acid reflux, nausea, and pain in the abdomen for an unknown reason. 11. In an effort to alleviate the stomach issues, Ms. Bickmire visited Gastroenterologist, Dr. Michael Hartley. 12. In October 2011, Dr. Harkey performed an upper endoscopy and colonoscopy to reveal stomach ulcers and colon polyps. 13. The colon polyps were removed and Ms. Bickmire was described medication for the ulcers and acid reflux and continues to do so to this day. 14. In November 2011, Dr. Marcia Johnson, prescribed a steroid pack for Ms. Bickmire to alleviate her joint pain. 15. The steroid pack yielded no results or relief. 16. In December 2011, Dr. Johnson placed Ms. Bickmire on Methotrexate for 12 weeks and prescribed Tramadol for pain, which did not alleviate any joint pain or fatigue, but rather increased her fatigue and caused nausea. 17. Since the previous two treatments did not work, Dr. Johnson started treating Ms. Bickmire for inflammatory arthritis and prescribed Enbrel. 18. Ms. Bickmire suffered an allergic reaction to the Enbrel requiring a visit to the Emergency Room and Ms. Bickmire being confined to her bed for three days. 19. In December 2011, Ms. Bickmire, who worked from home was unable to continue working due to health problems. 20. In October 2012, a picture hanging on the home office wall at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania fell off of the wall onto the floor. 21. Plaintiffs attempted to re hang the picture, but the drywall was so soft it would not hold a drywall anchor or nail. 22. On October 6, 2012, Erick Jensen, from JEM Enterprises, L.L.C. visited the Plaintiffs' home in order to determine the cause of the soft drywall in the home office. 23. Mr. Jensen discovered mold behind the wallpaper in the office at the home. 24. After removing the wallpaper, it was determined that black mold had penetrated from the exterior framing of the home through the drywall to the inside of the home. 25. Upon inspection of the office exterior wall, Mr. Jensen discovered a crack in the stucco that had been previously repaired prior to Plaintiffs purchasing the home that had cracked again. 26. Mr. Jensen notated other similar cracks in the stucco that had been repaired. 27. Plaintiffs were unaware of any cracks or repairs made to any cracks to the exterior of the home prior to them purchasing the home or after the purchase of the home. 28. Samples of the mold from the home were sent to EMSL Analytical, Inc. for analysis. 29. The results from EMSL Analytical, Inc. included high results of Cladosporium and Aureobasidium. (See EMSL Analytical, Inc. Report, attached and marked as Exhibit C). 30. On October 6, 2012, Mr. Bickmire contacted Nate Patterson, K. Hovnanian Homeowner Service Manager to inform him of the presence of mold in the home based upon the visit from JEM Enterprise, Inc. 31. On October 17, 2012, Mr. Bickmire contacted Nate Patterson requesting a detailed summary of damage found at the home. 32. On October 18, 2012, Mr. Patterson responded to the request stating that K. Hovnanian would provide a Garden State Environmental Report detailing that any damage was remediated, but would not provide documents regarding mold or any documents dealing with the structural integrity of the home per corporate policy. 33. On October 19, 2012, Garden State Environmental collected samples from the home, per direction of Nate Patterson, to be analyzed by Aerobiology Laboratory Associations, Inc. 34. Aerobiology testing results indicated that ranged from 5% until 75% of the trace occluded with particulate present throughout the home. (See Aerobiology Laboratory Certificate of Analysis, attached and marked as Exhibit D). 35. During the month of October 2012, a mold remediation crew visited the home to begin working on the office wall framing and purifying the air as a result of the testing and at the direction of K. Hovnanian. 36. Upon discovering mold in the home, Ms. Bickmire alerted Dr. Johnson that mold was discovered in the home since it could possibly be a cause for the health problems Ms. Bickmire was experiencing at the time. 37. On November 2, 2012, Mr. Bickmire alerted Mr. Patterson at K. Hovnanian that the Ms. Bickmire had experienced health issues. 38. Mr. Patterson indicated that K. Hovnanian did not believe that Ms. Bickmire's health issues were a result of or related to the construction of the home at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania. 39. In November 2012, Ms. Bickmire began experiencing severe abdominal pain in the upper right quadrant of her abdomen. 40. On November 13, 2012, after an ultra sound and x-ray, it was discovered that Ms. Bickmire's gall bladder was contracting hard and causing the severe pain. 41. On December 19, 2012, Ms. Bickmire's gall bladder was removed. 42. After recovery, Ms. Bickmire continued taking medication for joint pain and fatigue. 43. On May 13, 2013, Ms. Bickmire sought counseling as she was experiencing severe depression and anxiety as a result of her physical ailments. 44. In June 2013, the exterior of the home at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania was completely removed by a third party vender at the direction of Nate Patterson from K. Hovnanian. 45. On June 26, 2013, Garden State Environmental collected samples from the home in order to determine if the exterior re -construction could move forward. 46. On June 28, 2013, Garden State Environmental issued a preliminary exterior clearance indicating the home was cleared for re -construction. 47. On July 16, 2013, Garden State Environmental completed the interior clearance inspection. 48. On July 26, 2013, Garden State Environmental issued a Final Mold Clearance Report. (See Garden State Report, attached and marked as Exhibit E). 49. On July 28, 2013, Mr. Bickmire requested from K. Hovnanian the original testing report that was conducted on the home prior to the mold remediation. 50. Mr. Patterson from K. Hovnanian refused to share the initial results with Plaintiffs. 51. Plaintiffs eventually relocated to the Dallas, Texas area. 52. In March 2014, Ms. Bickmire sought out environmental health specialist, Dr. William Rea, to determine if her symptoms and ailments could in fact be mold related. 53. Dr. Rea indicated that based upon her symptoms and the prolonged mold exposure Ms. Bickmire encountered, her health issues could be mold related. 54. On April 16, 2014, Ms. Bickmire submitted a urine test to determine if mold related mycotoxins were present in her body. 55. Ms. Bickmire's urine test results indicated positive results that mold related mycotoxins were indeed present in her body. 56. In fact, Dr. Rea recommended regular sauna treatments for Ms. Bickmire to sweat out the toxins. 57. Additionally, Dr. Rea recommended the injection of mold antigens in Ms. Bickmire's abdomen every three days because her the presence of mycotoxins was so high. 58. In August 2014, Ms. Bickmire purchased a medical grade sauna to begin home treatments , since she needs to treat so frequently due to the extended exposure to mold. 59. Ms. Bickmire has experienced the following ailments as it relates to the presence of mold in the home at Bella Vista Drive in Mechanicsburg, Pennsylvania: a. Joint pain; b. Stomach Ulcers; c. Chronic Fatigue; d. Depression; e. ` Swollen joints; f. Concentration Issues; g. Short term memory problems; h. Unexplained bruising; and i. Delayed wound healing and scarring. 60. As a result of the physical ailments Ms. Bickmire experienced due to her exposure to mold at the home on Bella Vista Drive, Mechanicsburg, Pennsylvania, Ms. Bickmire is unable to enjoy the activities she once enjoyed including: a. Working; b. Weight training; c. Regular Workouts at least three times per week with a trainer; d. Social Activities; e. Painting; and f. Sewing. COUNT I — NEGLIGENCE 61. The preceding averments are incorporated by reference as if set forth fully herein. 62. It is well established that the elements of a negligence based cause of action are duty, breach of that duty, a causal relationship between the breach of said duty and the resulting injury, and actual loss. Roche v. Ugly Duckling Car Sales. Inc., 879 A.2d 785, 789 (Pa. Super. Ct. 2005). 63. Defendants, K. Hovnanian, had a duty to sell a property that was habitable and free from mold to Plaintiffs. 64. Additionally, Defendants had a duty to disclose any repairs made to the home prior to selling the home to Plaintiffs. 65. Defendants breached that duty by selling a home to Plaintiff that was not habitable due to the growth of mold and failing to disclose the stucco cracks that had been repaired on the home. 66. Plaintiffs incurred injury in that Plaintiff's health deteriorated significantly, Plaintiff incurred medical treatment bills, and Plaintiff was unable to work due to her health as a result of her exposure to mold. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Negligence. COUNT II — BREACH OF WARRANTY OF HABITABILITY 67. The preceding averments are incorporated by reference as if set forth fully herein. 68. In Pennsylvania, the Pennsylvania Supreme Court has held that a "builder -vendor impliedly warrants that the home he has built and is selling is constructed in a reasonably workmanlike manner and that it is fit for the purpose intended — habitation." Elderkin v. Gaster, 447 Pa. 118, 128 288 A.2d 771, 777 (1972). 69. The builder -vendor has a superior bargaining position in the sale of a home and the buyer relies on the skill of the builder -vendor. Tyus v. Resta, 476 A.2d 427, 431 (Pa. Super. 1984). 70. Even if the builder exercises reasonable care, the builders position alone "dictates that he bear the risk that home which he has built will be functional and habitable." ID. 71. In the instant case, the builder, Defendant K Hovnanian, built and sold the home to Plaintiffs. 72. Prior to Plaintiffs moving into the home, the home was unoccupied as it was the model home for the neighborhood. 73. In fact, the home was never occupied since it had been built. 74. The home contained numerous cracks in the stucco that had been repaired prior to Plaintiffs moving into the home, but still permitted moisture to permeate the home and ultimately sickened the homeowner. 75. The homeowner was unaware of the cracks in the stucco as it was not disclosed by the builderprior to the homeowner occupying the home. 76. Due to the mold contained within the home, the home was not fit for habitation. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Breach of the Warranty of Habitability. COUNT III — BREACH OF EXPRESS WARRANTY 77. The preceding averments are incorporated by reference as if set forth fully herein. 78. In the agreement between Plaintiffs and Defendant, Defendant provided an Express Warranty at paragraph 20 providing a two (2) year warranty after possession that the property was fit for its intended use. (See, Exhibit B). 79. The property was not fit for its intended use as the mold condition was present inside the walls of the home. 80. The Plaintiffs merely discovered the defect in October 2012 as it was not known by the Plaintiffs and not disclosed by the Defendants at the time of settlement. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Breach of Express Warranty. COUNT IV - FRAUD 81. The preceding averments are incorporated by reference as if set forth fully herein. 82. In Pennsylvania, "the essential elements of a cause of action for fraud or deceit are a misrepresentation, a fraudulent utterance thereof, an intention to induce action thereby, justifiable reliance thereon and damage as a proximate result." Wilson v. Donegal Mut. Ins. Co., 598 A.2d 1310, 1315 (Pa. Super. 1991). 83. Defendants misrepresented to Plaintiffs that the home at 51 Bella Vista Drive, Mechanicsburg, Pennsylvania was in a habitable state. 84. Furthermore, Defendants failed to disclose to Plaintiffs that the exterior stucco had previously cracked and been repaired prior to Plaintiffs' purchasing the home. 85. Plaintiff relied on Defendants assertions and lack of disclosure in purchasing the home. 86. Plaintiff's purchase of the home resulted in Plaintiff, Sylvia Bickmire, becoming ill due to the prolonged mold exposure. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's Fraud. COUNT IV — VIOLATION OF THE UNFAIR TRADE AND CONSUMER PROTECTION LAW, 73 P.S.§ 201, et. seq. 87. The preceding averments are incorporated by reference as if set forth fully herein. 88. 73 P.S. § 201-2(4) states in pertinent part that unfair or deceptive acts or practices occur by the "[failure] to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for purchase of goods or services is made." 73 P.S. § 201-2(4)(xv). 89. Unfair or deceptive acts also occur when a representation is made that the goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or second hand. 73 P.S. § 201-2(4)(vi). 90. Unfair or deceptive acts occur under the UTCPL when representation is made that the goods are of a particular standard, quality, or grade, if they are of another. 73 P.S. § 201- 2 (4) (vii). 01-2(4)(vii). 91. Finally, engaging in fraudulent or deceptive conduct which creates the likelihood of confusion or misunderstanding is also a violation of UTCPL. 92. The previously mentioned acts by Defendant constitutes unfair and/or deceptive acts or practices in clear violation of the UTCPL. WHEREFORE, Plaintiffs demand judgment in their favor for damages, attorney fees and cost in an amount exceeding the amount requiring arbitration due to Defendant's violation of the Unfair Trade and Consumer Protection Law. DATE: J212°11 JI Respectfully submitted, Abom & Kutulalds, L.L.P. Jas On P. ' . utulakis, squire I Pi. No.: 8 Brandon S. O'Donnell, Esquire I.D. No.: 316575 2 West High Street Carlisle, PA 17013 Attorneys for Plaint VERIFICATION PURSUANT TO Pa.R.C.P. 1024(c) Jason P. Kutulakis, Esquire, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and/or because the party for whom he makes this affidavit is outside the jurisdiction of the court, and verification of none of them can be obtained within the time allowed for the filing of the document; and that 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. 4904, relating to unsworn falsification of authorities. Date: i 0>jq —q Jason P Kutulakis, Esquire ',$usiness Entity pennsylvania DEPARTMENTOFSTATE Page 1 of 1 Corporations Online Services 1 Corporations 1 Forms 1 Contact Corporations 1 Business Services Search By Business Name By Business Entity ID Verify Verify Certification - Online Orders Register for Online Orders Order Good Standing Order Certified Documents Order Business List My Images Search for Images Business Entity Filing History Date: 9/29/2014 (Select the Zink above to view the Business Entity's Filing History) Business Name History Name K. HOVNANIAN AT SILVER SPRING, L.L.C. Name Type Current Name Limited Liability Company Entity Number: Status: Entity Creation Date: State of Business.: Registered Office Address: Mailing Address: - Domestic - Information 3320040 Active 7/11/2005 PA % Corporation Service Company PA Dauphin No Address Copyright © 2002 Pennsylvania Department of State. All Rights Reserved. Privacy Policy 1 Security Policy https://www. corporations. state.pa.us/corp/soskb/Corp.asp?2196073 EXHIBIT I A 9/29/2014 TERMS AND CONDITIONS - PURCHASE AGREEMENT 1. AGREEMENT This . Terms anti Gppditions Purchase Agreement is hereby entered into by and between K. Hovnanian atSi h'er'o' i 5L.L' .C, a Pennsylvania limited liability company ("K. Hovnanian", sometimes referred to herein as "We") and 'f. -.1'0,v\_ 5. - {"Buyer", sometimes referred to herein as "You"). It specifically incorporates the Summary of Basic Provisions as if set forth in full, a 'copy of which is attached and made a part hereto as Exhibit "A". Also, the selections made on the Decorator Selections, Options and Upgrades shall be a part of this Agreement and the Buyer shall have the obligation to pay for at Settlement the selections made (collectively, these documents and any addenda thereto shall be referenced as the "Agreement"): Failure to comply with any of these terms is a default under this Agreement. 2. DEPOSITS All deposits for K. Hovnanian at S' 114('c t4(5 ' I , L.L.C. shall be held in an escrow account with a Federally or State -insured bank or depository until Settlement of title or termination of this Agreement. If K. Hovnanian transfers the deposit from one escrow account to another during the pendency of this transaction, the escrow account must be with a Federally or State -insured bank or depository and K. Hovnanian shall provide Buyer with written notice of the change. Interest accrued from such deposits shall belong to K. Hovnanian and shall not be credited towards the Purchase Price. 3. DECORATOR SELECTIONS Buyer must make Decorator Selections on a timely basis in order for the home to be completed by the Estimated Completion Date. The Estimated Completion Date, as set forth in the Summary of Basic Provisions, is used to identify a thirty (30) day period within which we expect to complete and settle your new home. Buyer shall make Decorator. Selections by the Home Release Date, or in the absence of that date, within ten (10) days of Seller's request that they be completed. If Buyer fails to do so, Seller, in its sole discretion, has the right to do one or more of the following: (a) increase the prices of Decorator Selections; {b) change the Estimated Completion Date; or (e) make Decorator Selections for Buyer and Buyer will accept and pay for the selection(s) made by Seller. Seller will not request that Buyer make Decorator Selections before the expiration' of Buyer's cancellation rights tinder this Agreement. Upon the completion of the Decorator Selections, Options and Upgrades form, the Buyer shall pay to Seller a ten (10%) percent deposit of the total amount of the Decorator Selections. Changes to Selections: Changes to the Decorator Selections of the home during the construction process may require the cancellation of orders, resulting in restocldng fees, rescheduling of multiple trade contractors, and almost always interrupting the construction process. The Buyer shall execute a Change Order form to request changes to Decorator Selections. If a change is requested after the Home Release Date, a $300.00 administration fee per item will be assessed on the Change Order Form, which shall be non-refundable and" due when the Change Order is submitted. In addition, if the revision is accepted by the Seller, the cost for each item may be considerably higher than previously reviewed during the decorator selection appointment, due to order cancellation and/or required additional expenses. HOME RELEASE DATE 4. CHANGES IN PLANS K. Hovnanian has the right to make substitution of materials, equipment or design changes without notice to Buyer whenever K. Hovnanian finds it necessary or expedient, in its sole discretion, provided that the substitutions are of equal or better quality. K. Hovnanian has the right, in its sole discretion, to determine the placement of the home on the Property including: (a) a reverse of the floor plan; (b) the right to make any grading adjustments; and (c) to remove, change or leave an naturally occurring features on the Property. 5. S1 E CONDITIONS EXHIBIT This home is neither constructed nor warranted to be free of mold or other naturally occurring biological impurities. Mold is a natural occurring organism, and typically will collect and grow whenever the combination of moisture, organic materials, and warmth co -exist. There are hundreds — maybe thousands -- of species of organisms commonly referred to. as "mold". Some of those species' are possibly benign, but others are believed to be toxic to human health and destructive of certain building materials like wood. Many people are allergic to, or develop allergies to mold. In addition to mold, certain other naturally -occurring, sometimes organic, airborne, and often invisible, contaminants such as animal dander, dust, dust mites, fungi, bacteria and pollen (collectively, "Biological Impurities") may be brought into the home (through the natural circulation of air or generated by or carried upon people, animals or things) where they can become trapped and allowed to grow in the home unless they are. removed. As with mold, Biological Impurities can cause allergies or other health effects. According to some .experts, mold and other Biological Impurities can probably not be completely eliminated, but may be reduced by routine Buyer maintenance. Therefore, Buyer should (1) perform periodic inspections to find visible mold or Biological Ithpurities, (2) remove those substances when present, and (3) perform periodic inspections to detect visible moisture (which contributes to mold growth). You should repair any moisture barrier built into the home which is aged or which has failed and is permitting the presence of moisture. We recommend you contact a licensed contractor for assistance in meeting these responsibilities. Additional information may be available from the United States Environmental Protection Agency or state and local authorities. To remind you and to alert subsequent owners'or occupants of your home to this Disclosure, Buyer hereby agrees that either prior to or subsequent to Settlement, K. Hovnanian may install (in the laundry room, kitchen or bathroom cabinets, or other suitable locations in the home) a permanent reminder of the need to continually monitor for the presence of mold and/or other Biological Impurities. 7. RADON DISCLOSURE Radon is a naturally occurring invisible, odorless gas formed underground by decaying radium. The gas, which usually rises to the surface and dissipates harmlessly in the open air, can reach elevated levels if trapped in well -insulated or poorly ventilated areas. At the present time, there is no reliable test to determine radon. levels in soil and it is impossible to knowwhether elevated levels will be found in homes in this development. In any event, K. Hovnanian will place 4 inches of stone underneath the slab and place perforated PVC piping in the stone, and will place PVC piping from the basement ceiling through the open space of the attic which could later be vented through the roof to the atmosphere by the homeowner. K. Hovnanian makes no guarantee or representation that such technique will eliminate or reduce the entry of radon gas, if any, into the homes in this development. Furthermore, the levels of radon that occur within any particular home are very dependent upon many factors which are unique to the home, the time of year and even the lifestyle of the people living within the home. It is not possible to obtain readings of radon levels while a home is under construction that would be reliable indicators of levels of completed, occupied homes. 8. MORTGAGE CONTINGENCY This Paragraph applies only if a "Mortgage Amount" is filled in on the Summary of Basic Provisions part of this Agreement. Within ten (10) business days of the date on which this Agreement is fully executed, Buyer will make application to obtain a mortgage from an institutional lender licensed in Pennsylvania. This Agreement is contingent on Buyer obtaining a written mortgage commitment no later than the Mortgage Contingency Date, for not more than the mortgage amount stated in the Summary of Basic Provisions, at the prevailing rate of interest as of the date of Settlement and based upon a payment term of not less than thirty (30) years. Buyer must timely and fully comply with all requests of the lender. Buyer must not withdraw any loan application, refuse any reasonable commitment offered, and must pay all fees and charges connected to such application and commitment. K. Hovnanian is not obligated to pay any fees, costs, points or other charges in connection with such application or commitment, unless K. Hovnanian agrees to do so in writing in advance. Buyer hereby authorizes Buyer's lending institution to release to K. Hovnanian all information contained in and regarding Buyer's mortgage application and commitment. If Buyer receives a mortgage commitment containing conditions or contingencies that Buyer is responsible for, it is Buyer's obligation to satisfy them. Buyer's failure to satisfy all conditions or contingencies is a default by Buyer. If Buyer does not obtain a mortgage commitment by the Mortgage Contingency Date, Buyer may: (a) elect to waive the mortgage contingency and complete the purchase without a mortgage, or (b) request that K. Hovnanian extend the Mortgage Contingency Date, or (c) request cancellation of this Agreement and retum of all deposits paid, without interest or penalty. Any request to extend the Mortgage Contingency Date or to cancel this Agreement must be in writing received by K. Hovnanian before the Mortgage Contingency Date and must contain copies of documents proving that Buyer had made timely application for the mortgage and that the application was either denied or is still awaiting determination. No mortgage contingency will be extended to a new date unless specifically agreed to in writing by K. Hovnanian before the then current Mortgage Contingency Date is reached. If Buyer elects to waive the mortgage contingency, then this Agreement will remain in full force without any mortgage contingency and Buyer must go forward with the purchase. If, before the Mortgage Contingency Date, Buyer requests a cancellation of this Agreement for failure to obtain a mortgage commitment before the Mortgage Contingency Date, then K. Hovnanian, at its option, may elect either to: (1) refund Buyer's deposits without interest; (2) direct Buyer to apply for a mortgage commitment consistent with the terms of this Agreement to a lending institution K. Hovnanian selects, and Buyer agrees to timely complete and execute all documents, fully comply with all reasonable requests of that lender and pay all reasonable fees and costs connected to that application; or (3) agree to take back a purchase money mortgage from Buyer at the Settlement and at the then prevailing rate of interest in which case Buyer must go forward with the purchase and must execute all forms and documents reasonably required by K. Hovnanian to make the loan marketable in the secondary mortgage market. If a mortgage commitment is not obtained within sixty (60) days from the date of the second application, or if K. Hovnanian elects not to take back a mortgage, K. Hovnanian must return all_deposit monies to Buyer without interest and this Agreement will be of no further effect. The issuance of a mortgage commitment to Buyer that conforms to the above terms constitutes full satisfaction of this Paragraph and Buyer is required to go forward with the purchase. If the mortgage commitment is later withdrawn, canceled, terminated or if it lapses for any reason, including but not limited to a change in Buyer's financial status (with the exception of loss of employment beyond Buyer's control) or Buyer's failure to satisfy any of the mortgage commitment's conditions or contingencies (including the sale or rental of Buyer's present residence), and Buyer fails to close title, Buyer will be in default of this Agreement. However, Buyer will not be in default if the mortgage commitment is canceled or terminated due to K. Hovnanian's failure to timely close title in accordance with this Agreement. Failure of Buyer to: (i) make timely application; (ii) cooperate fully with mortgage lender; (iii) satisfy all conditions and contingencies of the mortgage commitment; (iv) cooperate with K. Hovnanian's efforts to process a second mortgage application, if applicable; (v) accept a reasonable mortgage commitment; or (vi) notify K. Hovnanian in writing, on or before the Mortgage Contingency Date that a mortgage commitment has been obtained; shall constitute an election by Buyer to waive the mortgage contingency and this Agreement shall be in full effect without any mortgage contingency. This means that Buyer must go forward with the purchase, even without a mortgage. If Buyer does not go forward with the purchase, Buyer is in default. 9. ASSIGNMENT Buyer cannot assign, sell or in any way transfer this Agreement or any interest in this Agreement. Any attempt to do so is a default of Buyer. 10. DEFAULT OF BUYER If Buyer fails for any reason to make payments, violates any of the terms of this Agreement or does not complete the purchase under this Agreement, Buyer will be in default. If the Buyer is in default, the Seller may direct the escrow agent to release to Seller, without further approval required from Buyer, the. payments made by Buyer, but not more than 10% of the purchase price, plus the amount of any options or upgrades requested by Buyer and installed by Seller. K. Hovnanian will retain this money either on account of the purchase price or as liquidated damages. Liquidated damages are a fixed amount paid to K. Hovnanian which the parties agree will be a reasonable estimate of the damages if Buyer defaults, since K. Hovnanian's actual damages are difficult to establish. If K. Hovnanian elects to retain money as Liquidated damages, this Agreement will be of no further effect, and K. Hovnanian must retum to Buyer all remaining money, if any. If Buyer starts a lawsuit against K. Hovnanian which includes a demand for return of any deposit monies paid under this Agreement and a court finds that Buyer is entitled to the return of all deposit monies paid, K. Hovnanian will also be responsible for Buyer's reasonable attomey fees and costs of litigation if Buyer is one hundred (100%) percent successful in its suit. If the court finds that K. Hovnanian is entitled to retain any of the deposit monies or if Buyer is otherwise unsuccessful in Buyer's lawsuit, Buyer will also be responsible. for K. Hovnanian's reasonable attorney fees and costs of suit. 11. IC. HOVNANIAN'S INABILITY TO DELIVER DEED If Seller's title proves unmarketable, or if Seller does not construct, complete or convey the home referred to in this Agreement within six (6) months of the Estimated Completion Date, Buyer may elect to cancel this Agreement. This must be done by serving written notice of cancellation upon the Seller within fifteen (15) calendar days after the date which is six (6) months following the specified Estimated Completion Date. In the event that Buyer elects to cancel this Agreement, Seller's sole obligation shall be to return all deposit monies paid under this. Agreement, without interest, and reimburse Buyer for the actual costs of title search and survey, if any, and this contract shall become null and void. If this Agreement is not cancelled as described in this paragraph, then this Agreement shall remain in full force and effect and Seller will not be responsible for any expenses which the Buyer might incur as a result of the delay in Settlement. If the delay in constructing, completing or conveying the home referred to in this Agreement within six (6) months of the Estimated Completion Date is caused by events beyond the control of the Seller, this Agreement shall be extended until such time as the delay is corrected, "unless otherwise limited by the next paragraph. By way of compliance with the Interstate Land Sales Act, the Seller states that this Agreement is for the sale of a home on improved land that the Seller is obligated to erect within a period of two years from the execution of this Agreement, unless Acts of God or other events or circumstances that constitute a defense under applicable state law to performance under a contract would permit the Seller to extend that period. If the Seller fails to erect the home as and when described in this paragraph, then, notwithstanding any provision of this Agreement to the contrary, the Buyer shall have any remedy at law or in equity. 12. SITE VISITS/PRE-OCCUPANCY INSPECTION No Buyer or contractor designated by Buyer shall be allowed to do any work whatsoever in any home prior to Settlement of title. Due to safety and insurance regulations, site inspections by Buyer must be by appointment and by Seller's representative. Buyer assumes all liability for any damage or injuries that occur as a result of any visit. It is expressly agreed that a breach of this paragraph shall constitute default under this Agreement. Prior to Settlement of title, Seller will specify the time and date for a Pre -Settlement Orientation of the property by Buyer., Said orientation shall be within a reasonable "period of time prior to Settlement. Those outstanding items which may be required to be completed or repaired will be entered on a Pre -Settlement Orientation form and completed on or before the Settlement Day Orientation, if possible in Seller's discretion. Those items which cannot be completed, in Seller's discretion, on or before the Settlement Date will be repaired or completed as soon as possible after Settlement and shall not prevent Settlement of title. 13. SETTLEMENT CHARGES AND ADJUSTMENTS Buyer shall be responsible for all costs associated with Settlement, including, but not limited to one- half of the Pennsylvania Realty Transfer Tax. Taxes, assessments, association fees, water and sewer are to be apportioned at Settlement. 14. SETTLEMENT Settlement will occur as soon as possible after completion of the home at the time, date and place set by K. Hovnanian in a notice (either oral or written) to Buyer. When so scheduled, the date and time of Settlement is "OF THE ESSENCE". This means that Buyer's failure to close at the set time is a breach and default of this Agreement. If K. Hovnanian elects to send written notice of the time, date and place of Settlement to Buyer, such written notice shall be sent to the Buyer's address set forth on the Summary of Basic Provisions. Buyer must notify K. Hovnanian of any changes to Buyer's address or telephone number, and failure to notify K. Hovnanian of such changes is a breach and default of this Agreement. The Estimated Completion Date is stated on the Summary of Basic Provisions. Seller shall not schedule Settlement more than two weeks prior to the Estimated Completion Date unless Buyer consents. Completion is evidenced by a temporary or permanent Certificate of Occupancy issued by the municipality. Buyer will close title even if all site or other improvements arenot complete. No funds will be escrowed if the improvements or the pre- occupancy inspection report items are incomplete. If Buyer is unable or refuses to close on the date and time specified by K. Hovnanian, or if K. Hovnanian is unable to schedule Settlement due to Buyer's failure to notify K. Hovnanian of a change to Buyer's address or telephone number, at its option, K. Hovnanian may exercise its rights in Paragraph 10 of this Agreement or have Buyer reimburse K. Hovnanian at or before Settlement for K. Hovnanian's total reasonable carrying and administrative costs for postponing the Settlement to another time, date and place set by K. Hovnanian. Buyer agrees that K. Hovnanian may cancel any Time of the Essence Settlement without penalty. 15. TITLE AND POSSESSION At the Settlement, Buyer will be given possession of the home and K. Hovnanian will deliver a Special Warranty Deed, an Affidavit of Title and Corporate Resolution upon receipt of the full purchase price. The willingness of Governor's Abstract Company, 1 Industrial Way West, Eatontown, NJ 07724, as agent for First American Title Insurance Company, to insure title to the home establishes good and marketable title. Buyer is not obligated to obtain title insurance from Governor's Abstract Company, which is affiliated with K. Hovnanian. Title shall be free from all liens and encumbrances except the following: * restrictions, reservations, covenants, agreement or easements of record; * any state of facts an accurate survey would reveal; * zoning regulations, restrictions, or the Declaration for the Condominium, as applicable; and * mortgages or liens which may be satisfied at Settlement. 16. FIRE AND OTHER CASUALTY The risk of loss or damage to the home by fire or otherwise until Settlement is on K. Hovnanian. 17. LICENSE Buyer hereby authorizes and grants to K. Hovnanian the irrevocable right to enter into, upon, over or under the home and the property for a period of two (2) years after the date of Settlement on prior notice to Buyer and at reasonable hours (except in cases of emergency) for the completion of construction, repair, emergency matters or pursuant to governmental order or requirement. This provision shall survive Settlement. 18. INSULATION In compliance with Federal Trade Commission Regulations Rule 16 C.F.R. Part 460, the following information concerning insulation in your home is furnished. (A) The Seller installs fiberglass batt type insulation which is manufactured to have an R value of R-13 in outside walls loose fill or batt - type fiberglass insulation with an R-38 rating in ceilings below attic space. (B) For slab on grade floors, the Seller installs '/2" or greater rigid foam perimeter insulation which is manufactured to have a minimum R value of R-5 downward to the bottom of the slab, then horizontally beneath the slab for a minimum distance of 24 inches. The primary entrance door is an insulated door and is fully weather stripped. Windows and sliding doors are dual glazed low E thermo break equipped, except for windows in basements and garage doors. Anti air filtration measures taken include the installation of a sill seal. (C) The manufactured thickness of the above types of insulation is as follows: R-13 fiberglass batt is 3 5/8"; R-38 fiberglass loose fill is 13"; R-30 fiberglass batt is 9"; rigid foam perimeter foundation insulation is '/s" or greater. 19. ANTI -SPECULATION In order to discourage speculation and to provide a stabilized community of primarily owner - occupied homes, K. Hovnanian desires to sell homes only to buyers who will own the Property for a period of at least one (1) year. Therefore, in order to induce K. Hovnanian to agree to sell the Property to Buyer, Buyer represents and agrees as follows: a) Ownership of Home for One (1) Year. Buyer represents and warrants to K. Hovnanian that Buyer shall not assign or attempt to transfer Buyer's rights under the Agreement or enter into any other type of contract for the sale or other transfer of the home which would result in Buyer's failure to hold title thereto in fes simple and own the home for a period of at least one (1) year from the Settlement of Buyer's purchase of the home (herein referred to as the "Ownership Period"). The provisions of this paragraph and the accuracy of the above representations and warranties constitute a covenant of Buyer and a condition precedent to K. Hovnanian's performance under the Agreement. b. Transfer Prior to Settlement. Any assignment by Buyer or attempt to assign Buyer's rights under the Agreement and sell or otherwise transfer the home prior to Settlement for the sale of the home shall constitute both (a) a material breach of the Agreement, entitling K. Hovnanian, at its sole election, to terminate the Agreement and retain Buyer's deposit pursuant to the terms of the Agreement, and (b) the failure of a condition precedent to K. Hovnanian's obligation to sell the home to Buyer. K. Hovnanian's remedies are not limited to prior to the Settlement of home to Buyer. If Buyer breaches the provisions of this Agreement and Buyer closes, K. Hovnanian shall thereafter be limited to the remedies under Paragraph 19.c., below. c. Transfer Subsequent to Settlement. Except for "hardship" situations as described in Paragraph 19.g., below, any sale or other transfer by Buyer under which Buyer transfers fee simple title to the home prior to the expiration of the Ownership Period shall constitute a material breach of the Agreement. Any such material breach shall entitle K. Hovnanian to recover from Buyer any and all damages, including reasonable attorney's fees, arising from Buyer's breach. d. No Unreasonable Restraint. Buyer acknowledges that the purpose of this Agreement is to comply with K. Hovnanian's intention to sell homes only to buyers who will actually retain ownership of their homes during the Ownership Period thereby preventing speculative purchases and stabilizing property re -sales for permanent residents. Buyer agrees that the provisions and restrictions set forth in this Agreement do not constitute an unreasonable restraint upon alienation of the home being purchased. e. Survival; .Severability. All of the covenants contained herein shall survive the delivery and recordation of the deed conveying the Property from K. Hovnanian to Buyer. Theprovisions of this Agreement shall be independent and severable, and a determination of invalidity or non -enforceability or partial invalidity or enforceability of any one provision or portion hereof shall not affect the validity or enforceability of any other provision of this Agreement. g• Subordination. Buyer hereby acknowledges and agrees that a violation of this Agreement by Buyer shall not defeat or render invalid the lien of any fust mortgage made in good faith and for value by Buyer, and that the covenants and provisions of this Agreement shall be inferior and subordinate to the lien of any such first mortgage recorded concurrently with the deed conveying the home to Buyer. Hardship. The following events shall be deemed to constitute "hardship" situations under which Buyer may sell, transfer, or assign (collectively, "a Transfer") its right, title and interest in the home prior to holding title to, and occupying, the home for a period of one (1) year from Settlement. i. A Transfer resulting from the death of Buyer; ii. A Transfer by Buyer where the spouse of Buyer becomes the only co-owner of the home with Buyer; iii. A Transfer resulting from a decree of dissolution of marriage or legal separation or from a property settlement agreement incident to such decree; iv A Transfer by Buyer into a revocable inter vivos trust in which Buyer is a beneficiary; v. A Transfer, conveyance, pledge, assignment or other hypothecation of the home to secure the performance of an obligation, which transfer, conveyance, pledge, assignment or hypothecation will be released or reconveyed upon the completion of such performance; vi. A Transfer by Buyer where necessary to accommodate a mandatory job transfer required by Buyer's employer (not including Buyer, if Buyer is self- employed); vii. A Transfer necessitated by a medical or financial emergency, proof of which emergency has been delivered to K. Hovnanian, and has been approved by K. Hovnanian in its reasonable discretion; viii. A Transfer which, in the reasonable judgment of K. Hovnanian, constitutes a "hardship" situation consistent with the intentions of this Agreement. 20. WARRANTIES K. Hovnanian will provide, at its own expense, a Home Builder's Limited Warranty administered by a professional warranty service corporation. K. Hovnanian warrants the construction of any common facilities for a period of two (2) years from the date of completion of each facility and that they are fit for their intended use. K. Hovnanian warrants the following to be free from material and workmanship defects for a period of one (1) year from the date of possession or Settlement: outbuildings, driveways, walkways, patios, retaining walls and fences, if any. K. Hovnanian warrants that the home is fit for its intended use. THE FOREGOING WARRANTIES ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. K. HOVNANIAN NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE HOME (LE., THE RESIDENTIAL BUILDING AND RELATED IMPROVEMENTS) SOLD HEREUNDER, AND THERE ARE NO AGREEMENTS OR WARRANTIES, EITHER ORAL OR WRITTEN, COLLATERAL TO OR AFFECTING THIS AGREEMENT. 21. K. HOVNANIAN'S AGENT Buyer acknowledges that K. Hovnanian's sales staff works only for K. Hovnanian and has legal obligations, called fiduciary duties, to K. Hovnanian. These include reasonable care, undivided loyalty, confidentiality and full disclosure. 22. ENTIRE AGREEMENT/REPRESENTATIONS This Agreement, the Public Offering or General Information Statement, the approved site plans and architect's plans, and any Riders to this Agreement or the Documents, contain the parties' entire agreement. Any modification of this Agreement is not binding unless it is in writing and signed by both Buyer and K. Hovnanian. This Agreement is binding on and inures to the benefit of the parties' respective heirs, successors, administrators and executors. Neither this Agreement nor any document referencing this Agreement may be recorded in any public office. Violation of this Paragraph is a material default of this Agreement. Buyer represents that they understand that K. Hovnanian may sell similar homes at prices higher or lower than this home's price. If a court of competent jurisdiction determines any part of this agreement to be unlawful, the parties agree that it is their intention that the unlawful section of the agreement shall be removed from the agreement and the remaining portions of the agreement shall remain in full force and effect. 23. NO MODIFICATIONS IN ORDER TO EXPEDITE THE CONSTRUCTION AND DELIVERY OF YOUR HOME, K. HOVNANIAN WILL NOT AGREE TO ANY MODIFICATIONS TO THIS AGREEMENT. BUYER SHOULD CONSULT AN ATTORNEY REGARDING THE RIGHTS AND OBLIGATIONS OF BUYER AND K. HOVNANIAN UNDER THIS AGREEMENT. BUYER ACKNOWLEDGES STATEMENT OR GENERAL IN WITNESS WHERE year written below. Seller: K. HOVNANIAN AT RECEIPT OF A COPY OF THE PUBLIC OFFERING INFORMATION STATEMENT, AS APPLICABLE. OF, the parties hereunto have set their hands and seals the day and L.L.C. BY: Authorized Representative Date: i/cD 7 uyer date Buyer date EMSL Analytics lc. 521 Plymouth Road, Suite 107 Plymouth Meeting, PA 19462 Phone/Fax: (610) 828-3102 / (610) 828-3122 EMSL Order ID: 181202266 Customer ID: JEME64 Customer PO: cc 108010 Project ID: Attn: Erick Jensen JEM Enterprise, LLC 141 West Louther Street Carlisle, PA 17013 Proj: Bickmire Phone: Fax: Collected: Received: Analyzed: (717) 245-8543 (717) 245-2582 10/07/2012 10/12/2012 10/16/2012 Test Report: Microscopic Examination of Fungal Spores, Fungal Structures, Hyphae, and Other Particulates from Bulk Samples (EMSL Method: M041 Lab Sample Number. Client Sample ID: Sample Location: 181202266-0001 #1 Office Drywall Spore Types Category Agrocybe/Coprinus Alternaria Ascospores Aspergillus/Penicillium Basidiospores Bipolaris++ Chaetomium Cladosporium Curvularia Epicoccum Fusarium Ganoderma Myxomycetes++ Paecitomyces Rust Scopulariopsis Stachybotrys Torula Ulocladium Unidentifiable Spores Zygomycetes Aureobasidium - - - - - - - *High* - - - - - - - - - - - - - *High* Fibrous Particulate Hyphal Fragment Insect Fragment Pollen - - - - Category: Count/per area analyzed Rare: 1 to 10 Low: 11 to 100 Medium: 101 to 1000 High: >1000 Bipolaris++ = Bipolaris/Dreschlera/Exserohilum Myxomycetes++ = Myxomycetes/PericonialSmut - = Sample contains fruiting structures and/or hyphae associated with the spores. Michael Thoma, Laboratory Manager No discemable field blank was submitted with this group of samples. or Other Approved Signatory EMSL maintains liability limited to cost of analysis. This report relates only to the samples reported above and may not be reproduced, except in full, without written approval by EMSL. EMSL responsibility for sample collection activities or analytical method limitations. Interpretation of the data contained in this report is the responsibility of the client "-" denotes not detected. Sam condition unless otherwise noted. `Samples analyzed by EMSL Analytical, Inc. Plymouth Meeting. PA (Report amended: 10/18/2012 15:20:06 Replaces initial report from:10/16/2012 11:35:41 Reason Code: Client -Change to Sample ID For lnfomiation on the fungi listed in this report please visit the Resources section at www.emsl. Test Report DEVER1-7.26.0 Printed: 10/18/2012 03:20:06PM EXHIBIT tAbo ORY Certificate of Analysis ASSOCIATES, INCORPORAIW EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bicicmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 1 of 7 Non -Viable Same Day TAT Spore: SOP 3.8 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number 10 -19 -PL -02 2nd FI 150 12013574-002 10 -19 -PL -01 Out #1 60°F Light Rain/Mist , 150 12013574-001 Spore Identification Raw Ct spr/ma % Ttl In/Out , Raw Ct spr/m3 % Tti In/Out Alternaria : ascospores -basidiospores Cercospora Cladosporium . Curvularia Epicoccum hyphal elements PenicilhumlAspergitlus group rusts smuts,Periconia,myxornycetes Stachybotrys unknown 2 13 - - 1 911 8 53 2 1/28 46 2453 76 1/5.3 1 7 - - 4 27 1 : 1/1.5 2 13 - - 2 13 . - . 11 73 2 - 9 60 2 1.3/1 24 160 5 23/1 46 307 10 - 4 27 1 - Debris Rating 3* 1 - 7 "- - 55 1467 10 - 61 12993 89 - - - - - 6 40 - - -- - - .. .. _ _ - - - - 7 47 . - 1 7 - - - - - - -- - - - Debris Rating 2* Analytical Sensitivity: 7 Analytical Sensitivity: 7 Total 160 3213 -100% 1/4.5 131 14561 -100% - EXHIBIT • •RObiotofty [Ab roRy Certificate of Analysis -.-� ASSOCIATES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 2 of 7 Non -Viable Same Day TAT Spore: SOP 3.8 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number 10 -19 -PL -03 Conservatory 150 12013574-003. 10 -19 -PL -01 Out #1 60°F Light Rain / Mist 150 12013574-001 Spore Identification Raw Ct spr/m3 % Ttl In/Out Raw Ct spr/m3 % TtI In/Out Altemaria ascospores basidiospores Cladosporium clear brown Curvularia hyphal elements Penicillium/Aspergillus group Pithomyces rusts smuts,Periconia,myzomycetes Stachybotrys 1 7 1.011. 14 93 4 1/16 66 1760 74 117.4: 13 87 4 2.2/1 1 , 7.. 1 7 - - 7 47 2 - 26 173 7 3.7/1 3 . 20 ; 1 6 40 2 5.7/1 17 113 5 - 6 40 2 - Debris Rating 3* 1 7 - - 55 1467 10 - 61 12993 89 - 6 40 - - - - - - - - - - - 7 47 - - - - - 1 7 - - -. - -- - - Debris Rating 2* Analytical Sensitivity: 7 Analytical Sensitivity: 7 Total 161 2394 -100% 1/6.1 131 14561 -100% - AERobioEofly tA c ToRy Certificate of Analysis ASSOCIATES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 3 of 7 Non -Viable Sarre Day TAT Spore: SOP 3.8 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number 10 -19 -PL -04 Fam Rm 150 12013574-004 10 -19 -PL -01 Out #1 60°F Light Rain / Mist 150 12013574-001 Spore Identification Raw Ct spr/m3 % Ttl In/Out Raw Ct spr/m3 % TtI In/Out Alternaria. ascospores basidiospores Cladosporium Epicoccum Helicosporium/Helicomyces hyphal elements PenicilliumlAspergillus group Pithomyces rusts smuts,Periconia;myxomycetes Torula 1 7 1.0/1 11 73 2 1/20 52 2773 88 114.7 8 53 2 1.3/1 1. 7 - - 1 7 -- 5 33 1 15 100 3 2.1/1 1 7 6 40 1 5.7/1 9 60 2 " 1 7 - - Debris Rating 3* 1 7 - 55 1467 10 - 61 1299.3.. 89 - 6 40 - - -- - - - - - - - 7 47 - - - - - 1 7 - - - - _, - - - - Debris Rating 2* Analytical Sensitivity: 7 Analytical Sensitivity: 7 Total 111 3167 -100% 1/4.6 131 14561 -100% - '144.1sz.......AER0b1010W LAIX TOR' Certificate of Analysis ASSOCIA1ES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 5 of 7 Non -Viable Same Day TAT Spore: SOP 3.8 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number 10 -19 -PL -06 Out #2 150 12013574-006 10 -19 -PL -01 Out #1 60°F Light Rain / Mist 150 12013574-001 Spore Identification Raw Ct spr/m3 In/Out Raw Ct sprim % TtI In/Out. Alternaria ' ascospores basidiosrxres Cladosporium Epicoccum hyphal elements Monochaetia Penicillium/Aspergillus group rusts smuts,Periconia,myxomycetes - - - - 12 4790 15 3.3/1 69 27545 84 2.111 4 107 - 2.7/1 2 13 - -- 1 7 - - 7 187 1 4.0/1 2 13 - 1.9/1 16 107 - - Debris Rating 2* 1 7 - - 55 1467 10 - 61 12993 89 - 6 40 - - - - - - - - - 7 47 - - 1 7 - - - Debris Rating 2* Analytical Sensitivity: 7 Analytical Sensitivity: 7 Total 114 32776 -100% 2.3/1 131 14561 -100% - Client Sample Number: 10 -19 -PL -07 Sample Location: OSB #1 Test Requested: 1051 Tape, Same Day TAT: SOP 3.7 Results: Occasional smuts Pericona myxomycetes spores seen Debris Rating 3 Lab Sample Number: 12013574-007 Laboratory Observation • 1-5 per cover Slip" AERobiology kb( ,ToRy Certificate of Analysis ASSOCKES, INCORPORATED EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: 10/19/2012 Date Received: 10/22/2012 Date Analyzed: 10/22/2012 Date Reported: 10/22/2012 Project ID: 12013574 Page 6 of 7 Client Sample Number 10 -19 -PL -08 Sample Location: OSB #2 Test Requested: 1051 Tape, Same Day TAT: SOP 3.7 Results: Occasional clear brown spores seen Debris Rating 3 Lab Sample Number: 12013574-008 Laboratory Observation • percover.stipli* AcRObio1Ogy LAbC rORy Certificate of Analysis ASSOCIATES, INCORPORAIu) EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Richard Lester Project : 5458 - Bickmire Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 10/19/2012 10/22/2012 10/22/2012 10/22/2012 12013574 Page 7 of 7 Footnotes and Additional Report Information Debris Rating Table 1 ,Minimal (<5%) particular present Reported values are minimally affected by particulate load. 2 5% to 25% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace, that is occluded. 3 26% to 75% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is occluded. 4 75% to 90% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is occluded. 5 • Greater than 90% of the trace occluded with particulate Quantification not possible due to large negative bias. A new sample should be collected at a shorter time interval or other measures taken to reduce particulate load. 1. Penicillium/Aspergillus group spores are characterized by their small size, round to ovoid shape, being unicellular, and usually colorless to lightly pigmented. There are numerous genera of fungi whose spore morphology is similar to that of the Penicillium/Aspergillus type, Two common examples would be Paecilomyces and Acremonium. Although the majority of spores placed in this group are Penicillium, Aspergillus, or a combination of both. Keep in mind that these are not the only two possibilities. 2. Ascospores are sexually produced fungal spores formed within an ascus. An ascus is a sac-like structure designed to discharge the ascospores into the environment, e.g. Ascobolus. 3. Basidiospores are typically blown indoors from outdoors and rarely have an indoor source. However, in certain situations a high basidiospore count indoors may be indicative of a wood decay problem or wet soil. 4. The Smut, Periconia, Myxomycete group is composed of three different groups whose spores have similar morphologies. Smuts are plant pathogens, Periconia is a relatively uncommon mold indoors, and Myxomycetes are not fungi but slime molds. Although these organisms do not typically proliferate indoors, their spores are potentially allergenic. 5. The colorless group contains colorless spores which were unidentifiable to a specific genus. Examples of this group include Acremonium, Aphanocladium, Beauveria, Chrysosporium, Engyodontium microconidia, yeast, some arthrospores, as well as many others. 6. Hyphae are the vegetative mode of fungi. Hyphal elements are fragments of individual Hyphae. They can break apart and become airbome much like spores and are potentially allergenic. A mass of hyphal elements is termed the mycelium. Hyphae in high concentration may be indicative of colonization. 7. Dash (-) in this report is reported as "not detected" (ND) or "<" (less than) with reference to the reportable limit. 8. The positive -hole correction factor is a statistical tool which calculates a probable count from the raw count, taking into consideration that multiple particles can impact on the same hole; for this reason the sum of the calculated counts may be less than the particle hole corrected total. 9. Due to rounding totals may not equal 100%. 10. Minimum Reporting Limits (MRL) for BULKS, DUSTS, SWABS, and WATER samples are a calculation based on the sample size and the dilution plate on which the organism was counted. Results are a compilation of counts taken from multiple dilutions and multiple medias. This means that every genus of fungi or bacteria recovered can be counted on the plate on which it is best represented. 11. If the final quantitative result is corrected for contamination based on the blank, the blank correction is stated in the sample comments section of the report. 12. Analysis conducted on non-viable spore traps is completed using Indoor Environmental Standards Organization (IESO) Standard 2210. 13. The results in this report are related to this project and these samples only. Terminology Used in Direct Exam Reporting Conidiophores are a type of modified hyphae from which spores are bom. When seen on a surface sample in moderate to numerous concentrations they may be indicative of fungal growth. Suzanne S. Blevins, B.S., SM (ASCP) Laboratory Director GARDEN S beta ENVIRONMENTAL VIA E-MAIL AND U.S. MAIL July 26, 2013 Mr. Nate Patterson Homeowner Service Manager K. Hovnanian Edison Group Homeowner Service 110 Fieldcrest Avenue Edison, NJ 08837 Re: Final Mold Clearance Report Bickmire residence K. Hovnanian's Bella Vista 51 Bella Vista Drive Mechanicsburg, PA 17055 Dear Mr. Patterson: SOLI(SCIENCE PRACTICAL SOLOTIONS This represents our final report for the above referenced mold remediation project. This report documents the results of our exterior clearance inspection that was conducted on June 27, 2013 (all exterior elevations) and the interior clearance inspection completed on July 16, 2013. All inspections were completed by Peter Lesniak of Garden State Environmental, Inc. (GSE). During the exterior clearance inspection on the front, left side, right side, and rear elevations of the home (stone and/or stucco), all previously impacted building materials identified were either removed, or cleaned, disinfected, and treated, as required. Moisture mapping (using a Delmhorst TotalCheck moisture meter) did not identify any elevated moisture levels, all readings were 18% or less. All impacted exterior elevations of the home were cleared for re -construction as stated in our Preliminary Exterior Clearance E-mail issued on June 28, 2013. The mold remediation contractor, Consolidated Environmental, Inc. (CEI), completed the interior abatement work in accordance with the instructions we provided in our June 28, 2013, Exterior Clearance and Interior Recommendations E-mail. The impacted interior areas within the garage work area and surrounding areas were found to be free of visible dust, debris, and were suitable to proceed with clearance testing. I. CLEARANCE SAMPLING METHODS: Microbial Sampling Currently there is no standardized sampling technique and analytical method to uniformly identify and quantify the different species and genera that occur in the biological diversity of the microbiological world. 555 BROAD SiEEL SUflE K GLEN ROCK, NJ 07452 (201)-652-1119 VAN.W.GSECONSULTANTS..COM F. 1201)-6,52-0612 fib AERobioEOCty / ORATORY Certificate of Analysis . ASSOCIATES, INCORPORATED EMLAP# 102977 aftettide Sane (997 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wolf Project : 5624 = Staretz Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 06/26/2013 06/27/2013 06/27/2013 06/27/2013 13008389 Page 3 of 5 Non -Viable Same Day TAT Spore: SOP 3.8 Client Sample Number Sample Location Sample Volume (L) • Lab Sample Number 6.26 -PL -04 Out #2 150 13008389-004 6 -26 -PL -01 Out #1 82°F 150 13008389-001 ! Spore Identification Raw Ct sprlm3 % Id In/Out Raw Ct spr/m3 % Ttl In/Out _ - r 3 _ r -Atte`rnarta � ✓ ,u•: P } �. } x ati u� � �- xr�5 '�>,d. -t r �"»y-f'�,," -..__.r_..:�_. .... .._...-. .�. 26 1387 5 - ._.;,.. 4q:�,•ar: r -r 21.7p,, i -E 4 .y; -.-4s ...;::?'..a_.u'IL.�:tl;scmwu*:�:�.{i�arcv'�• 4�F�,},_.-' 1 7 - •. 4,`� "f:�.'� -=%i•1.]`.i'. � MJf.T! - r{l. ��I..� - - _ r}gin.:/ f ... ...... ,.__, _, r u .. ...-. z.. _. ..:-�'.:+t"f"..-. • a?� 60 3200 12 - - - - - Y' •k;.:.c ...._:...$S .ai.: =.... s.A .✓...-.« „mk _.. ..__ ascospores =... _1. . i I _ J »-._. � ..1. . YY+,�_:j!.� 4. ..-1,i. j.� {".4 ,+. ,__{{. ..•.,c.:. KY.. .. _u.,.,... f . t ...,.._ . _»« Botrytis '.:�... -. ....a. r_..., u -,:...c,.-:._ �.: .. - ....,.,.%....; ..z........: _- .._....... a+l..' :a.. v.,>. , .. S..i.. ... ....-'�• _... .:, .... ,. r. .,, .,.s- .. u tx u- ..' i=;.. _:._ 1,.,.. Y... ...� � '� . * ..::.... Cladosporium Curvularia Epicoccum I II 1 =.7 Y- Y'' ... p 5'- Y�.:dx�>*y,..-1,e-r,s .,! _... 5 .. c _�r ..3.._x:';,u _. Helicosporium/Helicomyces Y�y{ ,, ". 'i 1 "{ 1' P etemen „� idr!�P._ r,_.: Oidium ry(; T,x 'i { 1 { T. Pemciiiiur�l/•As rg�1105. r4 A �,A*w. ...„ _•__Yv. Pithomyces .. ... 7•+'"F�,•,3�,�%� �• ��! J�1��'�{�$}� .. S :_ is } •__:Cfl �r YI4[✓rlR Z.... -L.,--. ._..v. _.y u.'+�...—a..u.-S�i? smuts,Periconia,myxomycetes s, 4 C "��nlia. � t vl "i iF (} t P ,it - -1 � Jt i x :_.ry es,- .._ ._.._..%?..� .-.-.Et=-s«. �;7.__ :w._-_._.,..- w.'1'b _ -1.-a r... ..._ ...«. ;,_3? _...a x. 37 1973 7 1.4/1 1 6 ,._ �s} 1 7 - 1.0/1 . _ . .... . .. ... .... . . — is?•'� - ....: ... .... {... �. .,.. � :f,'.''1 ::t :, •. , :- ..._ :>— ........... .. ....h.. .. f a_::.Z`-s..j:... 3 .:3 90 4800 16 1.5/1 1 7 -- 5 33 - 1/1.4 f 3. t B- i d . , i , K� �:? w r . _rv-,.._ r'>- i• - t ..>•,.%r.a .. ..._ .... _.:t...__v .._..-.r.».. _....... - - - - '. " t 3. y /�' - '� ! i� may'" � -- - - 1 � T { .f.Cy,. r � t ,"1 n �� s t- 4 3 TT1! t f -- - - Y.r...: .,v::., ._ ...r`« _�_•-•___,._ 1.i -.v isi..... _.. _.x. C..._._� 5 33 - 1/3.6 i,�31�✓' ..Y � 1 '� I fi - Y - .5' •t .i, } I aI'�2 „-..:... a. _,L. ,. .. .: �.., ..,�-: €: �.,. .»�.. -,i'. «_ Debris Rating 2* 7 47 - - J A n,,{� 7 €� 3 `•�_. ]. 4 "£�YL5 ':..� ....r a '� .�f. � 'a. ' ?,� a -`.'s : e.. �:.c,-.u.c._ er.,,no--:s:._�rL-*_....>__..t: `1 7 - - , 'ne• * -lyl ''�i, .."5l"':IC�•,{' (-c ,!-w} � - 3 20 - - [,{ } r t'i 4 3 y;, -.e- P } *- 17 r - f/', 1" .�•a.tl o- t°' .1. 3 20 - - .._».. yl� ..._s:...: _._ ..i'-er1. .s� .dmL 'Se..-..a:k=..:s_ •3'-'F-rlst�C:..? 18 120 - - - i ry � �S „r, 1 ..i � L,, '4 F fa 1� 'x _,. �7_._.-�„r_.•�- _. ...��.. ._�'€., _.� _-..=.?_3_5.�,a.}_. Debris Rating 3* Analytical Sensitivity: 7 sprlm3 Analytical Sensitivity: 7 sprints Total 235 29369 -100% 1.1/1 212, 26462 -100% - kRObi01.0% d ORATORY Certificate of Analysis ASSOCIATES, 0.'111IZ. INCORPORATED Ilk &team Se /997 EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wolf Project : 5624 - Staretz Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: 'Date Reported: Project ID: 06/26/2013 06/27/2013 06/27/2013 06/27/2013 13008389 Page 2 of 5 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number Non -Viable Same Day TAT Spore: SOP 3.8 6 -26 -PL -03 In BR Contain 150 13008389-003 6 -26 -PL -01 Out #1 82°F 150 13008389-001 Spore Identification Raw Ct sprfm3 % TtI In/Out Raw Ct spr/m3 % Ttl In/Out '1"•?:7 Marl&&': ascospores basi&ospores Botrytis Cladosporium 6 40 1W '648 50 1387 7 5 22 12 Helicosporium/Helicomyces ePtiir4liRre.4- Oidium ;4410:043410114.*g Pithomyces P�lythrinciumsmuts,Periconia, myxomycetes 7 2 Debris Rating 3* • Debris Rating 3* Analytical Sensitivity: 7 spr/m3 Analytical Sensitivity: 7 spr/m3 Total54 360 —100% 1/74 212 26462 —100% r AERobiology A LAbortuoRy -•.‘,.•" ASSOCIATES, tzA INCORPORATED goetride Sage 19497 Certificate of Analysis EMLAP# 102977 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wolf Project: 5624 - Staretz Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 06/26/2013 06/27/2013 06/27/2013 06/27/2013 13008389 Page 1 of 5 Client Sample Number Sample Location Sample Volume (L) Lab Sample Number Non -Viable Same Day TAT Spore: SOP 3.8 6 -26 -PL -02 Out Contain 150 13008389-002 6 -26 -PL -01 Out #1 82°F 150 13008389-001 Helicosporium/Helicomyces Oidium Total 86 574 -100% 1/46 Analytical Sensitivity: 7 spr/m3 212 26462 -100% - Bickmire= Final Clearance Report - Bella Vista 7-26-2013, Page 8 APPENDIX I CERTIFICATE OF LABORATORY ANALYSIS Bickmire— Final Clearance Report — Bella Vista 7-26-2013, Page 7 #3 — Post abatement interior overview in garage work area. Bickmire— Final Clearance xeport — Bella Vista 7-26-2013, Page 6 Digital Images: #1 — Post abatement exterior overview at garage wall of concern. #2 — Post abatement exterior overview below front door. Bickmire— Final Clearance Iceport — Bella Vista 7-26-2013, Page 6 Digital Images: #1 — Post abatement exterior overview at garage wall of concern. #2 — Post abatement exterior overview below front door. Bickmire— Final Clearance Report — Bella Vista. 7-26-2013, Page 5 As long as the remediated areas remain dry, mold concentrations should stay at an acceptable level and there should not be a reoccurrence of mold growth on susceptible building materials. IV. CONDITIONS AND LIMITATIONS: The findings described in this report are reflective of the conditions existent at the time of testing. In the field of microbiological and environmental sampling, various environmental parameters such as temperature, humidity, winds, may impact significantly the results. Changes in the environmental conditions can alter significantly the microbiological taxa with respect to both the types of microorganisms and their quantity. Our findings and conclusions must be considered probabilities based upon professional judgment concerning the significance of the limited data gathered during the course of investigation. The results and recommendations set forth by GSE in this report will be valid as of the date of the report and are limited to the site condition at the time of investigation. Respec lly submitted, Peter Lesniak, B.S., C.I.E. Industrial Hygienist PL/pl/rl Enclosure am\ (4,J-14,tca, Richard M. Lester, M.S. Sr. Industrial Hygienist President AERobioiogy LAboRAToRy Certificate of Analysis ASSOCiAES, INCORPORATE) EMLAP# 102977 s'yleteede she 1997 43760 Trade Center Place Suite 100 Dulles, VA 20166 (877) 648-9150 www.aerobiology.net Garden State Environmental 555 Broad Street, Suite K Glen Rock, NJ 07452 Attn: Bruce Wolf Project : 5624 - Staretz Condition of Sample(s) Upon Receipt: Acceptable Date Collected: Date Received: Date Analyzed: Date Reported: Project ID: 06/26/2013 06/27/2013 06/27/2013 06/27/2013 13008389 Page 5 of 5 Footnotes and Additional Report Information Debris Rating Table 1 pinimal (<5%) particular present Reported values are minimally affected by particulate load. 2 5% to 25% of the trace Occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is occluded. 3 26% to 75% of the trace occluded with particulate Negative bias is expected. The degree of bias Increases directly with the percent of the trace that is occluded. 4 75% to 90% of the trace occluded with particulate Negative bias is expected. The degree of bias increases directly with the percent of the trace that is occluded. 5 Greater than 90% of the trace occluded with particulate Quantification not possible due to large negative bias. A new sample should be collected at a shorter time interval or other measures taken to reduce particulate load. 1. PenicilliurnlAspergillus group spores are characterized by their small size, round to ovoid shape, being unicellular, and usually colorless to lightly pigmented. There are numerous genera of fungi whose spore morphology is similar to that of the Penicillium/Aspergillus type. Two common examples would be Paecilomyces and Acremonium. Although the majority of spores placed in this group are Penicillium, Aspergillus, or a combination of both, Keep in mind that these are not the only two possibilities. 2. Ascospores are sexually produced fungal spores formed within an ascus. An ascus is a sac-like structure designed to discharge the ascospores into the environment, e.g. Ascobolus. 3. Basidiospores are typically blown indoors from outdoors and rarely have an indoor source. However, in certain situations a high basidiospore count indoors may be indicative of a wood decay problem or wet soil. 4. The Smut, Periconia, Myxomycete group is composed of three different groups whose spores have similar morphologies. Smuts are plant pathogens, Periconia is a relatively uncommon mold indoors, and Myxomycetes are not fungi but slime molds. Although these organisms do not typically proliferate indoors, their spores are potentially allergenic. 5. The colorless group contains colorless spores which were unidentifiable to a specific genus. Examples of this group include Acremonium, Aphanocladium, Beauveria, Chrysosporiurn, Engyodontium microconidia, yeast, some arthrospores, as well as many others. 6. Hyphae are the vegetative mode of fungi. Hyphal elements are fragments of individual Hyphae. They can break apart and become airbome much like spores and are potentially allergenic. A mass of hyphal elements is termed the mycelium. Hyphae in high concentration may be indicative of colonization. 7. Dash (-) in this report, under raw count column means 'not detected (ND)'; otherwise 'not applicable (NA). 8. The positive -hole correction factor is a statistical tool which calculates a probable count from the raw count, taking into consideration that multiple particles can impact on the same hole; for this reason the sum of the calculated counts may be less than the positive hole corrected total. 9. Due to rounding totals may not equal 100%. 10. Minimum Reporting Limits (MRL) for BULKS, DUSTS, SWABS, and WATER samples are a calculation based on the sample size and the dilution plate on which the organism was counted. Results are a compilation of counts taken from multiple dilutions and multiple medias. This means that every genus of fungi or bacteria recovered can be counted on the plate on which it is best represented. 11. If the final quantitative result is corrected for contamination based on the blank, the blank correction is stated in the sample comments section of the r eport. 12. Analysis conducted on non-viable spore traps is completed using Indoor Environmental Standards Organization (IESO) Standard 2210. 13. The results in this report are related to this project and these samples only. Terminology Used in Direct Exam Reporting Conidiophores are a type of modified hyphae from which spores are born. When seen on a surface sample in moderate to numerous concentrations they may be indicative of fungal growth. Suzanne S. Blevins, B.S., SM (ASCP) Laboratory Director CERTIFICATE OF SERVICE AND NOW, this 29th day of December, 2014, I, Shannon Freeman, of ABOM & KUTUL AKIs, T .T .P, hereby certify that I did serve a true and correct copy of the foregoing Amended Complaint by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Frederick J. Stellato, Esquire Norris, McLaughlin & Marcus, PA Suite 300, The Paragon Centre 1611 Pond Road Allentown, PA 18104 Attorneyfor Defendant R.Tt- rmc on Freeman