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HomeMy WebLinkAbout06-3176 JONATHAN M. CRIST, ESQ. ATTY ID 29936 DUANE P. STONE, ESQ. ATTY ID 85715 LAW OFFICES OF DUANE P. STONE. PO BOX 696 DII.LSBURG, PA 17019 Ph (717) 432-2089 Fx (717) 432-0158 GARY T. KRAJNIK and ERIKA S. KRAJNIK, Plaintiffs COURT OF COMMbN PLEAS CUMBERLAND CQ UNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC Defendants NO. 2006- 3 JURY TRIAL NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to de forth in the following pages, you must take action within 1 Complaint and Notice are served, by entering a written aF attorney and filing in writing with the Court your defenses a set forth against you. You are warned that if you fail to d without you and a judgment may be entered against you bl notice for any money claimed in the Complaint or for requested by the Plaintiff. You may lose money or propert to you. &?L,-a*n rend against the claims set wenty (20) days after this pearance personally or by id objections to the claims 1 so the case may proceed the Court without further any other claim or relief ? or other rights important YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar As! 32 S. Bedford Street Carlisle, PA. 17013 JONATHAN M. CRIST, ESQ. ATTY ID 29936 DUANE P. STONE, ESQ. ATTY ID 85715 LAW OFFICES OF DUANE P. STONE. PO BOX 696 DB.LSBURG, PA 17019 Ph(717)432-2089 Fx (717) 432-0158 GARY T. KRAJNIK and ERIKA S. KRAJNIK, Plaintiffs COURT OF COMI CUMBERLAND ( PENNSYLVANIA CIVIL ACTION - LAW V. JURY TRIAL COMPLAINT AND NOW come the Plaintiffs, GARY T. KRAJNIK and who file the instant action against Defendants, PAUL D. SMITH MADISON SETTLEMENT SERVICES-SHIPPENSBURG, Ll and EXIT REALTY GROUP, INC. of which the following is a PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC. Defendants NO. 2006- 311% PLEAS l: C UC C?FJLh-? S. KRAJNIK ANNA K. SMITH, BARBARA WOODS IDENTITY OF THE PARTIES 1.) Plaintiffs, GARY T. KRAJNIK and ERICA S. are adult individuals, husband and wife, who reside at 3708 Fayetteville, PA. 17222 2.) Defendants, PAUL D.SMITH and ANNA K. individuals, husband and wife, who reside at 1453 Lutztown 17007. 3.) Defendant, MADISON SETTLEMENT LLC ("MADISON"), is a Pennsylvania Limited Liability W. King Street, Shippensburg PA 17257. 4.) Defendant BARBARA WOODS ("WOODS") is real estate agent who at all times relevant to the causes of action agent for and representative of Defendant EXIT REALTY GRC has an address of 6 Kacey Court, Mechanicsburg PA. 17055. 5.) On or about October 13, 2005 the SMITHS as Sel as Buyers entered into an Agreement of Sale (the "Agreement of of vacant mountain land located in Penn Township, Cumberland designated as Parcel "31-13-0112-014B". A copy of this Agreer Exhibit "A". 6.) The Agreement of Sale was prepared by WOODS of the SMITHS. ("KRAJNIKS), Shadow Drive, (`SMITHS"), are adult Boiling Springs, PA with an address of 36 licensed was acting as an , INC. ("EXIT") which and the KRAJNIKS ') for a certain parcel ity, Pennsylvania of Sale is attached as agent for and on behalf 7.) At all times relevant to the causes of action was no parcel in Cumberland County, Pennsylvania with the designation "31-13-0 ? 12-01413". 8.) At the time of the execution of the Agreement of Sole the SMITHS were the owners of an approximately 5 acre parcel of land located in Penn Township, Cumberland County being parcel 31-12-0328-081 by Quitclaim Deed from th Community Baptist Church dated and recorded October 23, 1998 at Deed Book 187, age 828 Cumberland County records incorporated herein by reference (the "Former 9.) The KRAJNIKS intended to buy and believe that the Agreement of Sale was to convey the SMITH'S interest in 10.) Prior to Closing the KRAJNIKS walked the Defendant PAUL SMITH who showed KRAJNIKS the Parcel. 11.) Prior to their execution of the Agreement of Sale, Parcel"). SMITHS intended that Former Church Parcel. Church Parcel with of the Former Church KRAJNIKS made inquiry with WOODS, who owns a parcel of land located near the Former Church Parcel, about the availability of vehicular access to the Former Church I thereto the KRAJNIKS were informed by WOODS that the Forr. served by fire lanes and other public roads which could never be 12.) During the inspection of the boundaries of the to Closing as aforesaid the KRAJNIKS made direct inquiry of I III regarding vehicular access to the Former Church Parcel and PAUL D. SMITH III that such access was available and would without restrictions or problems. 13.) Defendant MADISON was retained by the them with regard to their acquisition of the Former Church Parcel el, and in response Church Parcel was sed. r Church Property prior idant PAUL D. SMITH assured by Defendant ;inue to be available :S to advise and assist id to conduct the Closing for the KRAJNICKS acquisition thereof. 14.) The KRAJNIKS believe and therefore aver that M4dison obtained on their behalf a search conducted by Big Spring Land Transfer Company) not only of the Former Church Parcel also of the properties surrounding the Former Church Parcel with regard to the issue of access to the Former Church Parcel 15.) Closing on the Agreement of Sale was conducted n October 26, 2005 (the "Closing") by Defendant MADISON at its offices at 36 West Kin Street, Shippensburg PA 17257. 16.) At the Closing the KRAJNIKS were tendered a sp cial warranty deed executed by the SMITHS which deed is recorded at Book 00271, age 04179 Cumberland County records, incorporated herein by reference (the "Tendered eed"). 17.) The Tendered Deed recites that it is for the non-existent numbered parcel 31-13-0112-014B. 18.) The metes and bounds description contained in the Tendered Deed was recited as being "per survey dated November 19, 2001 by Shelly Witter and intended to be recorded herewith"; however, no such survey by Shelly & Witter was attached to or recorded with the Tendered Deed. i 19.) The metes and bounds description in the Tendered eed does not describe the Former Church Parcel but rather describes that certain 4.2 acr parcel known as 31-13- 0110-016 the parcel located adjacent to the eastern boundary oft Former Church Property. 20.) At date of Closing parcel 31-13-0110-016 was ow ed by Darrell D. Goodhart and James D. Goodhart as set forth in Deed Book 24C, age 87 Cumberland County records incorporated by reference. 21.) At Closing MADISON's agent, DAWN SHOOP signature by the SMITHS and the KRAJNIKS a certain Survey Affidavit attached hereto as Exhibit `B"(the "SR Affidavit"), w] believe and therefore aver was prepared by or at the direction 22.) During the Closing but prior to executing the SR Tendered Deed the KRAJNIKS made repeated inquires of SHO WOODS if by executing said SR Affidavit as prepared with the presented for Right of Way the KRAJNIKS and accepting the , the SMITHS and "they [KRAJNIKS] are aware there is no express recorded right of way o this property and they are purchasing the property `AS IS' " might effect or impair thei ability to gain vehicular or other access to the Former Church Tract. 23.) SHOOP made no direct response to KRAJNIKS Paragraph 22 above but in response to said inquiries both WOOI maintained that execution of the SR Affidavit was no big deal an SMITHS continued to insist that execution of the SR Affidavit v on the KRANJIKS abilities to have access to the Former Church and the SMITHS continuing to maintain there were means to gai Church Tract other than by private rights of way. 24.) As a result of the representations of both WOODS regarding access and the insistence of SHOOP on behalf Affidavit must be executed, the KRAJNIKS executed the SR complete the Closing. 25.) On or about November 01, 2005, when the access to the Former Church Tract (which KRANICKS then be they discovered that all private access to the Former Church Tr Earl Hoffman and Stan Smith, the owners of the adjacent tracts KRANIKS needed to pass to access the Former Church Tract, as set forth in and the SMITHS both WOODS and not have any impact with both WOODS access to the Former the SMITHS that the SR and proceeded to attempted to gain to be their property), had been blocked by oueh which the the said Earl Hoffman threatened the KRANIKS with trespassing if the KRANIKS Hof man's lands. 26.) After they were unable to access the Former Paragraph 25 above, the KRAJNICKS discovered that there was to the Former Church Tract, nor were there any private rights of which would provide vehicular access to the Former Church Tra 27.) On or about November 01, 2005, when the about their denial of access to the Former Church Property by Smith the owners of the adjacent tracts, WOODS replied "we when land is sold up there". 28.) Upon information received the KRAJNIKS the SMITHS were aware of problems with regard to the said Earl various times in the years preceding the Closing the said EARL I- to deny the SMITHS access across Hoffman's lands. 29). On or about November 01, 2005 the KRAJNIKS, Shelly & Witter survey dated November 19, 2001 discovered the SMITHS which purported to convey the Former Church I legal description for the adjacent parcel 31-13-0110-016 then Goodhart and James D. Goodhart. 30.) On or about mid November 2005, the KRAJNIKS MADISON and WOODS about the problems with the legal de upon any of Tract as set forth in public means of access i available to them informed WOODS Hoffman and Stan have this problem and therefore aver that in that at had attempted examination of the e Tendered Deed from y to them contained the I by Darrell D. the SMITHS, on the Tendered Deed and their inability to obtain access to the Former Church KRAJNIKS DAMAGES 31.) At Closing the KRAJNIKS paid the Contract Thousand Six Hundred Seventy Five ($21,675.00) Dollars. 32.) At Closing the KRAJNIKS paid Settlement Eight Hundred Seventy Six and 91/100 ($876.91) Dollars. 33.) In order to finance their purchase and settlement Church Tract the KRAJNIKS took out a home equity line of cre( interest charges to date on said home equity line of credit loan to Two and 16/100 ($562.16) Dollars and claim continuing interest resolved. 34.) The KRAJNIKS have paid 2006 County and 12-0328-081 in the sum of Fifty Seven and 68/100 ($57.68) 35.) GARY T. KRAJNIK had incurred loss wages in Fifty Seven and 44/100 ($157.44) Dollars from loss of work (8 attend various meeting in an attempt to resolve the aforesaid avers that he may incur future additional lost wages. 36.) The KRAJNIKS have incurred legal fees and Office LLP and the Law Offices of Duane P. Stone PC in an Thousand Seven Hundred ($1,700.00) Dollars and aver that they Price of Twenty One and Taxes totaling ;ts for the Former loan and have incurred ing Five Hundred Sixty iarges until this matter is hip taxes on Parcel 31- S. sum of One Hundred is at 19.68 per hour) to and title problems and ses to the Finucane Law it in excess of One ill continue to accrue additional legal fees and expenses until this matter is resolved. COUNTI 37.) Paragraphs I - 36 of this Complaint are incorporat¢d herein by reference as if set out at length. 38.) The Tendered Deed from the SMITHS contained al covenant of Special Warranty. 39.) The SMITHS have breached their warranty of providing a legal description in the Tendered Deed which SMITHS did not and do not own. WHEREFORE, Plaintiffs, GARY T. KRAJNIK and ERI judgment of the Defendants PAUL D. SMITH III and ANNA K. Twenty Five Thousand Twenty Nine and 19/100 ($25,029.19)1 equity interest charges, legal fees and expenses as they accrue, costs of this action. COUNT II 40.) Paragraphs 1- 36 of this Complaint are if set out at length. 41.) The representations of Defendant WOODS as ai public access to the Former Church Parcel were false, or in the could have been determined to be false, and were made by WC Agent for the SMITHS for the purpose of inducing the of Sale and to complete the Closing. and right to convey by a parcel that the S. KRAJNIK, demand in the sum of plus additional home with interest and herein by reference as with regard to of reasonable care S in her capacity as i to enter the Agreement 42.) The representations of Defendant PAUL D. SMITO III as aforesaid with regard to public access to the Former Church Parcel were false, o in the exercise of reasonable care could have been determined to be false, and were made by Defendant PAUL D. SMITH III for the purpose of inducing the KRAJNIKS to enter the Agreement of Sale and to complete the Closing. WHEREFORE, Plaintiffs, GARY T. KRAJNIK and ER BA S. KRAJNIK, demand judgment of the Defendants PAUL D. SMITH III and ANNA K. SMITH in the sum of Twenty Five Thousand Twenty Nine and 19/100 ($25,029.19) Dollars plus additional home equity interest charges, legal fees and expenses as they accrue, along with interest and costs of this action. COUNT III 43.) Paragraphs 1 - 36 of this Complaint are incorporated herein by reference as if set out at length. 44.) The damages set forth were caused by the professional negligence of MADISON in any or all of the following respects: (a) Failing to review the Agreement of Sale to determine what property was to be conveyed to the KRAJNIKS; (b) Failing to review the title search from Big Spring 1he and Transfer Company; (c) Failing to explain to the KRAJNIKS the results of title search from Big Spring Land Transfer Company; (d) Failing to review the survey from Shelly & Winterjupon which the Tendered Deed was based; (e) Failing to determine that the property described in e Shelly & Winter survey was the adjacent parcel 31-13-0110-016 then owned by D ell D. Goodhart and James D. Goodhart and not the Former Church Property intended KRAJNIKS; (f) Failing to determine that the legal description on adjacent parcel 31-13-0110-016 then owned by Darrell D. Goodhart and not the Former Church Property intended to be (g) Failing to advise the KRAJNIKS with regard to revealed by the title search from Big Spring Land Transfer (h) Failing to explain to the KRAJNIKS the reasons SR Affidavit; (i) Requiring the KRAJNIKS to execute the SR WHEREFORE, Plaintiffs, GARY T. KRAJNIK and judgment of the Defendant MADISON SETTLEMENT i be conveyed to the Tendered Deed was the t and James D. yed to the KRAJNIKS; ntial access problems as Y; and the effects of the S. KRAJNIK, demand - SHIPPENSBURG, LLC in the sum of Twenty Five Thousand Twenty Nine and 19/100 ($25,029.19) Dollars plus additional home equity interest charges, legal fees and with interest and costs of this action. COUNT IV 45.) Paragraphs 1 - 36 of this Complaint are if set out at length. 46.) The representations of Defendant WOODS with the Former Church Parcel were false, or in the exercise determined to be false, and were made by WOODS for the KRAJNIKS to enter the Agreement of Sale. 47.) The representations of Defendant Woods at the effect of the SR Affidavit and the availability of public access to as they accrue, along herein by reference as to public access to care could have been of inducing the concerning the Former Church Parcel were false, or in the exercise of reasonable care could have been determined to be false, and were made by WOODS for the purpose of inducing the Closing. WHEREFORE, Plaintiffs, GARY T. KRAJNIK and judgment of the Defendants BARBARA WOODS and EXIT RE) the sum of Twenty Five Thousand Twenty Nine and 19/100 ($2f additional home equity interest charges, legal fees and expenses interest and costs of this action. LAW OFFICES OF to complete the k S. KRAJNIK, demand I= GROUP, INC. in )29.19) Dollars plus they accrue, along with P. STONE, P.C. Jonathan A nst, Esq. Atty ID No 2 936 Duane P. Ston e, Esq. Atty ID No 8, 5715 8 N. Baltimo a Street Dillsburg, P 17109 Ph: 717-432-2 089 Fx:717-432- 158 ??1 bff 14 STANDARD AGREEMENT FOR THE SALE OF VACA T LAND A/S-VL Tats ronn,erommeOdW ard.ppmved roc hut. remie,ed m use by the members of the Prnr,flvania Assn iul a of REALTGRS. i PARI. SELLERS BUSINESS RELATIONSHIP WITH PA LICENSED BROKER BROKER(C P 1 RONE 'D '- inn ADDRESS 77 , X t i ] r BROKER IS THE AGENTFOR SELLER Designated Agent(s) for Seller, if applicable: ' _ . OR _ Broker is NOT the Agent for Seller and is a/an: ? AGENT FOR BUYER ? TRANSACTION LICENSEE BUY$R'S USINESS RELATIONSHIP WITH PA LICENSE ` BROKER BROKER(Company)., Y ?? _ ( F_ ONE ( ADDRESS ?6 y,..y X . BROKER IS THE AGENT FOR BUYER Designated Agent(s) for Buyer, If applicable: OR Broker Is NOT the Agent for Buyer and is A/an:.LY4GENT FOR SELLER ? SUBAGENT FOR SE LLER ? TRANSACTION LICENSEE When the same Broker is Agent for Seller and Agent for Buyer, Broker is a Dual Agent. All of Bi there are separate Designated Agents for Buyer and Seller. If the same Licensee is designated for L laryig 01 SELLER(S) t I c" nice; are also Dual Agents UNLESS Buyer, the Licensee is a Dual Agent. is between called "Seller," and + x if u, r. - s r + called "Buyer." 2. PROPERTY (1.98) Seller hereby agrees to sell and convey to Buyer, who hereby agrees to parch e: / ALL THAT CERTAIN lot or piece of groxnd with buildings and Improvements thereon erected, i any, known as: in the of County off in the Commonwealth of Pennsylvani , Zip Code Identification (e.g., Tax ID #; Parcel #; Lot, Block, Deed Book, Page, Recording Date) 3. TERMS (7-01) (A) Purchase Price 2 U.S. Dollars which will be paid to Seller by Buyer as follows: 1. Cash or check at signing this Agreement: $ _ 2. Cash or check within days of the execution of this Agreement: $ 3. $ 4. Cash, cashier's or certified check at time of settlement: S L i TOTAL $ (B) Depmits paid o or account of purchase price to be held by Broker for Seller, unless otherwise sl ed here : (C) Seller's written approval to be orywore: ! i _r "- (D) Settlement to be on or before if Buyer and Seller agree. (E) Conveyance from Seller will be by fee simple deed of special warranty unless otherwise stated ere: (F) Payment of transfer taxes will be divided equally between Buyer and Seller unless otherwise st led here: (G) At time of settlement, the following will be adjusted pro-rata on a daily basis between Buyer an Seller, reimbersing where applicable: taxes (see Notices and Information Regarding Tax Proration); rents; interest on mortgage a"t, options; condominium fees and home- owner association fees, if any; water and/or sewer fees, if any, together with any other henable municipal services. The charges are to be pro-rand for the period(s) covered: Seller will pay up to and including the date of settlement Buyer will pay for all days following settlement, unless otherwise stated here: 4. FIXTURES AND PERSONAL PROPERTY (1-00) (A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property, free of liens, Also included: (B) LEASED items (not owned by Seller): (C) EXCLUDED: 5. DATESIFIME IS OF THE ESSENCE (8-02) (A) The said date for seNement and all other dates and times referred to for the performance of any of the, agreed to be of the essence of this Agreement and are binding. (B) For the purposes of this Agreement, number of days will be counted from the dale of execution, by executed and including the last day of the time period. (C) The date of settlement is not extended by any other provision of this Agreement and may only be extended I (D) Certain time periods arc pre-printed in this Agreement as a convenience to the Buyer and Seller. Any and may be changed by striking out the pre-printed text and inserting a different time Period accept 6. FINANCING CONTINGENCY (8-02) Pr WAIVED. This sale is NOT contingent on financing. ? ELECTED (A) This sale is contingent upon Buyer obtaining financing as follows: 1. Amount of loan $ 2. Minimum Term years 3. Type: 51' Land Acquisition Only ? Land Acquistion and Construction ? Other Buyer Initials: A/S-VL Page I of 6 Agreement are hereby the day this Agreement was v mutual written agreement of the parties. ne-printed time periods are negotiable the to all parties. Seller taitials: Is AatO01Nlon of COPYRIGHT PENNSYLVt AMOCUTION OP REALTORS& 3002 RE`AL`?RSa um mnoan rw......,na.a 4 rt n0.-.- q r5 B) n (C) (D) 4. Interest rate %: however, Buyer agrees to uYept the Interest rate as may be a a maximum interest rate of 5. Discount points, loan origination, loan placement and other fees charged by the lender as a pert once premiums and VA funding fee) not to exceed % (0% if not specified) of the loan The interest Ole and fees provisions requited by Buyer are satisfied if a lender makes available to Bu at or below the Maximum Interest Rate specified herein with the percentage fees at or below the amt the right, at Seller's sole option and as permitted by the lending institution and applicable laws, to c reimbursement, to the Buyer and/or lender to make the above terms available to Buyer. Within 10 days of the execution of this Agreement, Buyer will make a completed, written financing of ing to the terms above. The Broker for Buyer, if any, otherwise the Broker for Seller is audiss t the purposes of assisting in the loan process. I. Financing rnmmitment date . If a written commitment is t Buyer and Seller agree to extend the commitment date until Seller terminates this Agreem 2. Upon receipt of a financing commitment, Buyer will promptly deliver a copy of the comarmaner 3. Seller has the option to terminate this Agreement in writing, on or after the financing commitmt a. Is not valid until the date of settlement, OR b. Is conditioned upon the sale and settlement of any other property, OR c. Contains any other condition not specified in this Agreement. 4. If this Agreement is terminated as specified in paragraphs 6 (C) (1) or (3), or financing is not re paid on account of purchase prim will be remmed to Buyer Buyer will be responsible for any and/or title search or fee for cancellation of same, if any; AND/OR any premiums for flood inset fire insurance with extended coverage or cancellation fee, if any; AND/OR any appraisal fees in Seller Assist NOTAPPLICABLE ? APPLICABLE. Sellerxill pay: ? $ maximum. toward Buyer's closing costs as permitted by (A) Seller hereby agrees to permit inspections by authorized appraisers, reputable certifiers. insurer's rcpt and/or Buyer as may be required by the lending institutions, if any, or insuring agencies. Seller fist required by or provided for in the terms of this Agreement. Buyer has the right to attend all inspectio (B) Buyer agrees that Buyer, or anyone on the Property at Buyer's direction or on Buyer's behalf, will la the case of damage. Buyer will bear the risk of restoring the Property or of reimbursing Seller for at (C) Buyer reserves the right to make a pre-settlement inspection of the Property. Buyer's right to make provision of this Agreement. 8. STATUS OF WATER (7.01) (A) An off-Property source of water is not available for the Property. 19 is available for the Property through (Name of Service Provider) CONNECTION TO OFF-PROPERTY WATER SOURCE CONTINGENCY 12' WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on the Property to an off-Property water source are acceptable to Buyer. Buyer WAIVES THIS OFDOT paragraph 23 of this Agreement. ? ELECTED. Buyer will. within days of the execution of this Agreement and at Buyer's to the Property to the water source. If the terms of connection are not acceptable to Buyer, Buyer will: 1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreemt 2. Terminate this Agreement in writing, in which case all deposit monies paid on account of 1 to Buyer and this Agreement will be VOID. (B) ? Seller m misents that the Property is served by an on-site water source. ON-SITE WATER SERVICE INSPECTION CONTINGENCY B WAIVED. Buyer acknowledges that Buyer has the option in request an console water service map THIS OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement. ? ELECTED L Buyer has the option, within days ofthe execution ofthis Agreement and at Buyer's ex tion report by a qualified, professional water testing company of the quality and/or quantity of 2. Seller agrees to locate and provide access to the on-site (or individual) water system. if applies inspection company. Seller also agrees to restore the Property, at Seller's expense, prior to seat 3. If the report reveals that the water service does not meet the minimum standards of any applies satisfy the requirements for quality and/or quantity ss set by the lender, if any, then Seller wi report, notify Buyer in writing of Seller's choice to: a. Upgrade the water service to the minimum acceptable levels, before settlement, in wh agrees to the RELEASE set forth in paragraph 23 of this Agreement, OR b. Not upgrade the water service. 4. If Seller chooses not to upgrade the service to minimum acceptable levels, or fails to respond days, either: a. Accept the Property and the water service and, if required by the lender, if any, and/or any; service before settlement or within the time required by the lender, if any, and/or any in and with Seller's permission, which will not be unreasonably withheld, and agree to the R Agreement. If Seller denies Buyer permission to upgrade the water service, Buyer may. t this Agreement in writing, in which case all deposit monies paid on account of purchase and this Agreement will be VOID, OR It, Terminate this Agreement, in which case all deposit monies paid on account of purchase and this Agreement will be VOID. (C) ? Buyer is aware that there is no developed water source for the Property. ON-SITE WATER SERVICE APPROVAL CONTINGENCY L7" WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on" lation of a well. BUYER WAIVES THIS OPTION and agrees to the RELEASE set font in paragm ? ELECTED. Within 10 days of the execution of this Agreement, Buyer will make a completed, writ for the installation of a well. This sale is contingent upon Buyer obtaining, within days of pal approval for the installation of a well. Buyer will pay all costs associated with the application f any municipal fees and test expenses. In the event Buyer is unable to secure approval for well instal I. Accept the Properly as is and agree to the RELEASE set forth in paragraph 23 of this Agreerm 2. Terminate this Agreement, in which case all deposit monies paid on account of purchase p and this Agreement will be VOID. 9. STATUS OF SEWER (6-02) (A) Seller represents that Property is served by: ? OffProperty Sewage Disposal System ? Individual On-Lot Sewage Disposal System (See Sewage Notice I) ? Individual On-Lot Sewage Disposal System in Proximity to Well (Sce Sewage Notice I; see Si ? Ten-acre Permit Exemption (See Sewage Notice 2) ? Holding Tank (See Sewage Notice 3) None (See Sewage Notice 1) None Available (See Sewage Notice 5 or Sewage Notice 6, as applicable) (B) Connection to an off-Property, sewage disposal system is not available for the property. is available for the Property through (Name of Service'Provider) Buyer Initials 2 A/S-VL Page 2 of 6 age of the loan (excluding any msur- the right to guarantee an interest rate t specified herein. Buyer gives Seller ibute financially, without promise of cation to a responsible lender accord- a communicate with the lender for received by Seller by the above date, in writing by notice to Buyer. Seller. data if the financing commitment: ved for settlement, all deposit monies amiums for mechanics lien insurance ice, mine subsidence insurance, and/or charges paid in advance to the lender. the lender. :natives, ouneyors. municipal officials agrees to permit anv other inspections e the Property in its same condition. In loss of value. s inspection is not valved by any other mining that the terms of connecting agrees to the RELEASE set forth in detem me the terms of connecting OR price will be resumed promptly of the Property. BUYER WAIVES se, to deliver to Seller a wdlan inspec- on-site water service. at Seller's expense, if required by the governmental authority and/or fails to within days of receipt of the case Buyer accepts the Property and t the time given. Buyer will. within tmenfal authority, upgrade the water rental authority, at Buyer's expense tSE set forth in paragraph 23 of this 5 days of Seller's denial terminate will be returned promptly to Buyer will be returned promptly to Buyer ing municipal approval for the instal- 3 of this Agreement. pplication for the municipal approval execution of this Agreement. murnei- rproval, including but not limited to. a, Buyer will either: will be returned promptly to Buyer 4, if applicable) Seller Initialse I i .+ PUBLIC SYSTEM CONTINGENCY ?? WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent on in +. i nection of the Property to a sewage disposal system. BUYER WAIVES THIS OPTION and agrees to of this Agreement. ? ELECTED. Within 10 days of the execution of this Agreement, Buyer will make a completed, wrim for the connection of the Property to a sewage disposal system. This sale is contingent upon Buyer ob cation of this Agreement, municipal approval for the connection of the Property to a sewage disposal aced with the application for approval, including but not limited to, any municipal fees and test experts approval for sewer connection, Buyer will either: 1. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreenta '-? 2. Terminate this Agreement, in which case all deposit monies paid on account of purchase price wi .n Agreement will be VOID. (C) INDIVIDUAL ON-LOT SEWAGE DISPOSAL INSTALLATION CONTINGENCY ?' WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent approval for the installation of an individual sewage system. BUYER WAIVES THIS OPTION and a graph 23 of this Agreement. :. ? ELECTED. Within days of the execution of this Agreement, ? Buyer .. ? Seller will make a complete[, written application to all appropriate authorities for the installation of an on-I all costs associated with the application for approval, including but not limited to, any fees and percr o-n gent upon the receipt of all applicable government approval for the installation of an individual sewagt cution of this Agreement. In the event rest results are unacceptable in Buyer or approval for an individu Buyer will either: I. Accept the Property as is and agree to the RELEASE set forth in paragraph 23 of this Agreemn .. 2. Terminate this Agreement, in which case all deposit monies paid on account ofpumh caprice wi Agreement will be VOID. Buyer will promptly deliver all information and lest results acquired ID) DIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY WAIVED. Buyer acknowledges drat Buyer has the option to request anindividual on-lot sewage dill WAIVES THIS OPTION and agrees to the RELEASE set forth in paragraph 23 of this Agreement. ? ELECTED L Buyer has the option. within days of the execution of this Agreement and at Buyer's exp tion repon by a qualified, professional inspector of the individual on-lot sewage disposal system 2. Seller, at Seller's expense, agrees, if and se required by the inspection company, to locate, provif lot sewage disposal system. Seller also agrees to restore the Property, at Seller's expense, prim i 3. If the report reveals defects that do not require expansion or replacement of the existing sew days of receipt of the report, notify Buyer in writing of Seller's choice to ^?r a. Correct the defects before settlement, including retests, at Seller's expense, in which case 1 'ea the RELEASE set forth in paragraph 23 of this Agreement, OR b. Not correct the defects. .. 4. If Seller chooses not to correct the defects, or if Seller fails to respond within the time given, a. Accept the Property and the system and, if required by the lender, if any, and/or any go, : before settlement or within the time required by the lender, if any, and/or any government r?a with Seller's permission, which will not be unreasonably withheld, and agree to the REI .. Agreement. If Seller denies Buyer permission to correct the defects. Buyer may, within Agreement in writing, in which case all deposit monies paid on account of purchase price this Agreement will be VOID, OR b. Terminate this Agreement in writing, in which case all deposit monies paid on account of I to Buyer and this Agreement will be VOID. 5. If the report reveals the need to expand or replace the existing individual on-lot sewage disposal of neceipt of the report, submit a corrective proposal to Buyer: The corrective proposal will iiltlu e'. remediation company; provisions for payment, including retests; and a projected completion dot of receiving Seller's corrective proposal, or if no corrective proposal is received within the th -r' a. Agree to the terms of the corrective proposal, if any, in writing, in which case Buyer ". t RELEASE set forth in paragraph 23 of this Agreement, OR b. Accept the Property and the system and, if required by the lender, if any, and/or any gm before settlement or within the time required by the lender, if any, and/or my government with Seller's permission, which will not be unreasonably withheld, and agree to the REI Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within Agreement in writing, in which case all deposit monies paid on account of purchase price this Agreement will he VOID. OR c. Terminate this Agreement in writing, in which case all deposit monies paid on account of I to Buyer and this Agreement will be VOID. 10. ENVIRONMENTAL AUDIT & PROPERTY INSPECTIONS (1-98) .. (A) Seller represents and warrants that Seller has no knowledge, except as listed below, of whether: ?2:' I. The Property has been contaminated by any substance in any manner which requires remediatio -., 2. The Property contains any wetlands, flood plains, or any other environmentally sensitive areas, %' chided by law; 1 The Property contains any substance, the removal or disposal of which is subject to any law or r .. 4. Any law has been violated in the handling or disposing of any material waste or the discharge "I water, or ground water; '.ct 5. The Property contains underground fuel or liquid storage tanks. EXCEPTIONS: (B) Seller and Buyer acknowledge that Broker: 1. Is a licensed real estate broker; 2. Is not an expert in construction, engineering, or environmental matters; and 3. Has not made and will not make any representations or warranties nor conduct investigations bility, of the Property, or any adjacent property. (C) ENVIRONMENTAL AUDIT/INSPECTION CONTINGENCY 13WAIVED. Buyer understands that Buyer has the option to request audits and inspections of the Prc and agrees to the RELEASE set forth in paragraph 23 of this Agreement. Buyer reserves the right u Property. ? ELECTED. Within days of the execution of this Agreement, Buyer has the option, at Buy or inspections completed by a licensed or otherwise qualified professional (check the inspections the ? Environmental Hazards ? Underground Storage Tanks ? Property Boundary/Square Footage Verification/Delineation ? Flood Plain Verification/Delineation ? Wetlands WrificatiotWeliaeation ? Specific Property Inspection limited to If Buyer is not satisfied with any condition as stated in any written report Buyer receives pursuant tc this provision, Buyer will, within the time allotted for obtaining such audits or inspections: I. Accept the Property with the information stated in the report(s) and agree to the RELEASE set OR 2. Terminate this Agreement in writing, in which case all deposit monies paid on account of put Buyer a this Agreement will be VOID. Buyer Initials ? ^` ? A/S-VL Page 3 of 6 eiving municipal approval for the con- re RELEASE set forth in paragraph 23 application for the municipal approval fining, within days of the exe- ystem. Buyer will pay all costs associ- . In the event Buyer is unable to secure OR be returned promptly to Buyer and this receiving all applicable govemment tes to the RELEASE set forth in para- sewage disposal system, and will pay don test expenses. This sale is contm- yatemwithin days oftheem- sewage system is unable to be secured. OR re resumed promptly to Buyer and this ough the approval process to Seller ad inspection of the Property BUYER deliver to Seller a written inspee- access to and empty the individual on- settlement. ;e disposal system, Seller will. within accepts the Property and agrees to ryer will, within _ days, either: mmental authority, correct the defects authority, at Buyer's sole expense and ASE set forth in paragraph 23 of this days of Seller's denial, terminate this gill be returned promptly to Buyer and price will be returned promptly stem, Seller may, within days e, but not be limited to, the name of the for corrective measures. Within 5 days e given, Buyer will ccepts the Property and agrees to the camental authority, correct the defects authority, at Buyer's sole expense and SASE set forth in paragraph 23 of this days of Seller's denial, terminate this vill be returned promptly to Buyer and will be returned promptly which is limited or pre- any material into the soil, air. surface condition or suits- BUYER WAIVES THIS OPTION a pre-settlement inspection of the pence, to have the following audits ;r will order): some or inspections in paragraph 23 of this Agreement, are price will be returned promptly to ,.r.. 17 ?(. Seller Initials: ' e+s 11 12, 13. 14. assessments except as (C) In the event any notices (including violations) and assessments aze received after execution of this Ain notify Buyer in writing, within 5 days of receiving the notice or assessment, that Seller will: L Comply with notices and assessments at Sellers expense, in which case Buyer accepts the Prop, in paragraph 23 of this Agreement, OR 2. NOT comply with notices and assessments at Seller's expense. 3. If Seller chooses not TO comply with notices and assessments, or fails within the time given to not notify Seller within 5 days in writing that Buyer will: a Comply with the notices, and assessments at Buyer's expense and agree to the RELEASE se OR b. Terminate this Agreement, in which case all deposit monies paid on account of purchase I and this Agreement will be VOID. H Buyer fails to notify Seiler witidn the time given, Buyer accepts the Property ani ... paragraph 23 of this Agreement (D) Buyer is advised that access to a public road may require issuance of a highway occupancy perm Transportation. TITLE, SURVEYS, & COSTS (6-02) (A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPPI deed restrictions, historic preservation restrictions or ordinances, building restrictions, ordinances,. em the ground, easements of record, privileges or rights of public service companies, if any; otherwise t will be good and marketable and such as will be insured by a reputable Title Insurance Company at t (B) Buyer will pay for the following: (1) Title search, title insurance and/or mechanics lien insurance (2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, and cancella charges paid in advance to lenden if any; (4) Buyer's customary settlement costs and accruals. (C) Any survey or surveys which may be required by the Title Insurance Company or the abstracting no legal description of the Property (or the correction thereof), will be secured and paid for by Seller Hr Buyer or required by lender will be secured and paid for by Buyer. (D) In the event Seller is unable to give a good and marketable title and such as will be insured by a reps as specified in paragraph 12(A), Buyer will have the option of: (1) taking such title as Seller can gi or (2) being repaid all monies paid by Buyer to Seller on account of the purchase price and being rei by Buyer for any inspections or certifications obtained according to the terms of the Agreement, thos in paragraph 12(B) items (1), (2), (3): and in the latter event them will be no further liability or oblil this Agreement will become VOID. ZONING CLASSIFICATION (1-98) (A) Failure of this Agreement to contain the zoning classification (except in cases where the property (an caned solely or primarily to permit single-family dwellings) shall render this Agreement voidable al any deposits tendered by Buyer shall be returned o the Buyer without any requirement for court acti Zoning Classification (B) ZONING APPROVAL CONTINGENCY NOTAPPLfCABLE ? WAIVED. Buyer acknowledges that Buyer has the option to make this Agreement contingent c intended use of the Property. BUYER WAIVES THIS OPTION and agrees to the RELEASE set fort ? ELECTED I. This sale is contingent on Buyer receiving zoning approval, or variance or special exception fie (municipality) to use the Property as a 1 Application for the approval (or variance/special exception) will be made within _ days e will pay for applications, legal representation, and any other costs associated with obtaining app 3. If the municipality requires the application to be signed by the current owner. Seller agrees to di 4. If final, unappealable approval is not obtained by which case all deposit monies paid on account of purchase price will be retumed promptly to B LAND USE RESTRICTIONS OTHER THAN ZONING (7-01) (A) © None Known (B) ?? The Property, or a portion of it, is preferentially assessed for tax purposes under the following A ? Farmland and Forest Land Assessment Act (Clean and Green Program) ? Open Space Act (an Act enabling certain counties of the Commonwealth to covenant will farm, forest, water supply, or open space uses) ? Agricultural Area Security Law (Development Rights) ? Other ? Buyer and Seller have determined the consequences that may result from the sale or a change in it. (C) ? Seller has no knowledge crony covenants, subdivision restrictions or other restrictions affectingt (D) ? Seller has no knowledge of any rights to timber, crops or minerals, except coal, that do not it; stated here: (E) ? Buyer acknowledges that any land use restrictions associated with the Property's enrollment i the Open Space Act or any other program identified in this paragraph 14, are encumbrances of ery of title subject to these encumbrances will not violate Seller's duty under paragraph 12(/ 15. _L NOTICE TNOT APPLICABLE '0 APPLICABLE THIS DOCUMENT MAY NOT SELL, CONVEY TRANSFER, INCLUDE OR INSURE THETTLE TO THE COALAND RIGHTS O DESCRIBED OR REFERRED TO HEREIN, AND THE. OWNER.OR OwNERS OF SUCH COAL MAY HAVE ME COMPLETE LEA IN THAT CONNECTION, DAMAGE MAY RESULT TO ME SURFACE OF THE LAND AND ANY HOUSE, BUILDING OR DON notice is set forth in the manner provided in Section I of the Act of July 17, 1957, P.L. 984) "Buyer zcknc right of protection against subsidence resulting from coal mining operations, and that the property desenh due to mine subsidence by a private contract with the owners of the economic interests in the coal. This of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conserve to sign the deed from Seller which deed will conain the aforesaid provision. 16. POSSESSION (7-01) (A) Possession is to be delivered by deed, keys and: 1. Physical possession to vacant Property free of debris, with all swetures broom-clean, at day ar 2. Assignment of existing lean(s), together with any security deposits and interest, at time of sett: lion of this Agreement or unless otherwise specified herein. Buyer will acknowledge existing le. execution of this Agreement. (B) Seller will not enter into any new leases, written extension of existing leases, if any, or additional 1, consent of Buyer. 17. RECORDING (345) This Agreement will not he recorded in the Office for the Recording of Deeds record, and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as 18. ASSIGNMENT (3-05) This Agreement will be binding upon the parties, their Fespeefive heirs, person was, and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, howe this Agreement without the written consent of Seller. _ 'I- NOTICES & ASSESSMENTS (6-02) represents as of Seller's execution of this Agreement, that no public im roverric and/or home vner assceiati n ssessmrn a ts . (A) Seller p o have been made against the property which remain unpaid and that no notice by any govemment or public with 'ty has bran served upon Seller or any- one on Seller's behalf, including notices miating to violations of zoning, housing, building, safety or fi ordinances which remain uncorrected, -and that Seller knows of no condition that would constitute violation of any such ordinances which re air uncorrected, unless otherwise spec- (B) Seller y and agrees to the RELEASE set forth rc Buyer if Seller will comply, Buyer will po? onh in paragraph 23 of this Agreement, ice will be aimed promptly to Buyer agrees to the RELEASE rat forth In r a from the Pennsylvania Department of _ IG HOWEVER the following: existing a minis of roads, easements visible upon : title to the above described real estate < c regular rates. it fee for cancellation of same, if any; on fees, if any; (3) Appraisal fees and - mey for the preparation or an adequate ^n veven any survey or surveys desired by ?z rile Title Company at the regular rates, 3 e with no change to the purchase price; .,r dismal by Seller for any costs incurred . . items specified in paragraph 12(C) and -- Tian on either of the parties hereto and %'v each parcel thereof, if subdividable) is he option of the Buyer, and, if voided, - t. receiving municipal approval for the in paragraph 23 of this Agreement . . n (proposed use). me execution of this Agreement Buyer il! )val. So. _, this Agreement will be VOID, in /cr. s (See Land Use Restrictions Notices) F and owners for preservation of land in ie use of the Property, or env portion of e Property unless otherwise stated here: fer with the Property unless otherwise he Clean and Green Program or under t the Property. Buyer agrees that deliv- uf this Agreement. 1PFORT UNDERNEATH THE SURFACE LAND . RIGHT TO REMOVE ALL SUCH COAL AND STRUCTURE ON OR IN SUCH LAND. (This edges that he may not be obtaining the herein may be protected from damage nowledgment is made for the purpose n Act of April 27,1966," Buyer agrees time of settlement, AND/OR tent if Property is leased at the execu- 4s) by initialing said lease(s) at time of es for the Property without the written in any other office or place of public breach of this Agreement. representatives, guardians and sumex r, that Buyer will not transfer or assign • 25R 19. DEPOSIT &RECOVERY FUND (6-02) sin, .. ! (A) Deposits paid by Buyer within 30 days of settlement will be by cash, cashier's or cmnified cheek. De and the person designated as payee will be paid in U.S. Dollars, and will be paid to Broker or party ide 2 them in an escrow account until consummation or termination of this Agreement in conformity with 10 uncashed check tendered as deposit may be held pending the acceptance of this offer. B) Upon termination of this Agreement, the Broker holding the deposit monies will release the deposit t a1 fully executed written agreement between Buyer and Seller. (C) in the event of a dispute over entitlement m deposit monies, a broker holding the deposit is required 1 Real Estate Commission (49 Pa. Code §35.327) to retain the monies in escrow unfit the dispute is r return of deposit monies, a broker will distribute the monies as directed by a final order of court or th and Seller agree that, in the event any broker or affiliated licensee is joined in litigation for the return 1-1 costs of the broker(s) and licensee(s) will be paid by the party joining them. .. (D) A Real Estate Recovery Fund exists to reimburse any persons who have obtained a final civil jud; ,.. licensee owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been ant ? ing all legal and equitable remedies. For complete details about the Fund, call (717) 783-3658, or I- ar4 (717) 783-4854 (outside Pennsylvania). 7z 20. PL3INNED COMMUNITY (HOMEOWNER ASSOCIATION) NOTICE FOR PURPOSES OF RE )a' NOTAPPLICABLE ? APPLICABLE ... (A) Buyer acknowledges that the Property is pan of a planned community as defined by the Uniform Pla Planned Community Notice for the definition contained in the Act.) ... (B) §5407(a) of the Act requires Seller to famish Buyer with a copy of the Declaration (other than plats is ti atimns of the association. and a Certificate containing the provisions set forth in §5407(a) of the Ac (C) Within days of the execution of this Agreement, Seller will submit a request to the associt ^a3 necessary to enable Seller to comply with the Act. The Act provides that the association is required tc of Seller's request (D) Under the Act, Seller is not liable to Buyer for the failure or delay of the association to provide the G .e liable to Buyer for any erroneous information provided by the Association and included in the Certif (E) Buyer may declare the Agreement VOID at any fime before Buyer's receipt of the association docm ors settlement, whichever occurs first. Buyer's ounce declaring the Agreement void must be in writit returned to Buyer r=n (F) In the event the association has the right to buy the Property (right of first refusal), and the st sociat horse Buyer for all monies paid by Buyer on account of purchase price and for any costs incurred It ante and/or mechanics lien insurance or fee for cancellation of same, if my; (2) Flood insurance, fin subsidence insurance, and cancellation fees, if any; (3) Appraisal fees and charges paid in advance .. settlement costs and seconds. a 21. MAINTENANCE & RISK OF LOSS (6-02) (A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically schedule 139 wear and tear excepted. a'a (B) In the event any system or appliance included in the sale of the Property fails and Seller does not repat notify Buyer in writing of Seller's choice to: I. Repair or replace the failed system or appliance before settlement, or credit Buyer at seNementl tam or appliance (this option must be acceptable in the lender, if any). N' each case, Buyer RELEASE set forth in paragraph 23 of this Agreement, OR 1 Not repair or replace the failed system or appliance and not credit Buyer at settlement for the appliance. If Seller does not repair, replace or offer a credit far the failed system or appliance, I 5 days or before settlement, whichever is sooner, that Buyer will: , a. Accept the Property and agree to the RELEASE set forth in paragraph 23 of this Agreatic -; b. Terminate this Agreement, in which case all deposit monies paid on account of purchase and this Agreement will be VOID. . (C) Sellerwill bear risk of loss from fire or other casualties until fine of seWemest. In the event of lima +rr r any included in this sale that is not repaired or replaced prior to settlement, Buyer will have the , promptly receiving all monies paid on account of purchase price or of accepting the Property in its t - of any insurance recovery obtainable by Seller. Buyer is hereby notified that Buyer may insure Buyet ' the time of execution of this Agreement. 22. WAIVER OF CONTINGENCIES (1-00) + In the event this Agreement is contingent on Buyer's right to inspect and/or repair the Property, Buyer's is within the time limits specified in the contingency provision(s) will constitute a WAIVER of thr Property and agrees to the RELEASE set forth in paragraph 23 of this Agreement. 23. RELEASE (1.00) Buyer hereby releases, quit claims and forever discharges SELLER, ALL BROI FES, and any OFFICER or PARTNER of any one of them and any other PERSON, FIRM, or COI through them, fount any and all claims, lasses or demands, including, but at tanked to, personal in the consequences thereof, whether now known or not, which may arise from the presence of envious onwite water service system, or any defects or conditions on the Property. Thu release wBl survive s ' 24. REPRESENTATIONS (1-00) (A) Buyer understands that any representation, claims, advertising, promotional activities, brochures orp their licensees, employees, officers, or partner s are not a pan of this Agreement, unless expressly ins ? is further understood that this Agreement contains the whole agreement between Seller and Buyer a covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever Agreement will not be altered, amended, changed, or modified except in writing executed by the par (B) It is understood that Buyer has inspected the Property before signing this Agreement (Includ'u - specifically scheduled herein), or has waived the right to do an, and has agreed to purchase it in slated in this Agreement. Buyer acknowledges that Brokers, their licensees, employees, off independent examination or determination of the structural soundness of the Property, the age ronmwtal conditions, the permitted uses, or of conditions existing in the locale where the Prop :'I mechanical inspection of any of the systems contained thereto. +]5 (C) Broker(s) may perform services to assist unrepresented patties in complying with the terms of this A err: (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find !q7 25. DEFAULT ("2) e?5 (A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buya .. 1. Fail to make any additional payments as specified in paragraph 3; OR +"^ 1 Furnish false or incomplete information to Seller, Broker(s), or the lender, if any, concerning B 44, cooperate in the processing of the financing application, which acts would result in the failure fir 442 nitment4 OR 413 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement M4 (B) Unless otherwise checked in paragraph 25 (C), Seller may elect to retain those sums paid by Buye. 415 following manners: 145 1. On account of purchase price; OR 147 2. As monies to be applied to Selier's damages; OR a4 3.. As liquidated damages for such breach. 449 (C) d Seller is limited to maturing sums paid by Buyer, including deposit monies, as liquidated danaf 150 (D) H Seller retains all suns paid by Buyer, including deposit monies, as liquidated damages pursuant to p 451 will be released from further liability or obligation and this Agreement will be VOID. 452 453 454 455 459 ? 4n Boyer Initials MS-VL Page 5 of 6 sits, regardless of the form of payment faed in paragraph 3(B), who will retain I applicable laws and regulations. Any Arues in accordance with the terms of a the Rules and Regulations of the State Aved. In the event of litigation for the iritten Agreement of the parties. Buyer deposit monies, the anomeys' fees and lent against a Pennsylvania real estate e to collect thejudgment after exhaust- M82-2113 (within Pennsylvania) and ,LE ONLY (7-01) ned Community Act. (See Definition of ltd plans), the bylaws, the miss and reg- ion for a Certificate and the discourteous mwide these documents within 10 days fificate in a timely manner, nor is Seller arc. ends and for 5 days thereafter. OR unfit ;; thereafter all deposit monies will be m exercises that right, Seller will term- Buyer for: (1) Title search, title insar- nsurance with extended coverage, mine d ender, if any; (4) Buyer's customary herein in its present condition, normal or replace the item, Seiler will promptly [ratan mama vame or me imea sys- `cepts the Property and agrees to the rm idus value of the failed system or ybrwill notify Seller in writing within OR ce will be returned promptly to Buyer by fire or other casualties to any prop- ion of rescinding this Agreement and n condition together with the proceeds equitable interest in this Property as of are to exercise any of Buyer's options contingency and Buyer accepts the ERS, that, LICENSEES, EMPLOY. ?ORATION who my be liable by or tries and property damage and all of anal harards, any deficiencies in the of any kind made by Seller, Brokers, orated or stated in this Agreement. It there are no other terms, obligations, taming this sale. Furthermore, this futures and any personal property present condition unless otherwise r5, or partners have not made an condition of the components, envi- y is situated; nor have they made a legal or financial starts, or fail to , the approval of a financing com- including deposit monies, in one of the 25 (B) or (C), Buyer and Seller f / A55 ?f Seller Initials: i55 I' 4 17 26. MEDIATION (7-96) - - - ;: 1.. ? NOTAVAILABLE WAIVED. Buyer and Seller understand that they may choose to mediate at a later date, should a ligation on the part of any party to do so. `ELECTED ... (A) Buyer and Seller will vy to resolve any dispute or claim that may arise from this Agreement L Rules and Procedures of the Home Seller/Home Buyers Dispute Resolution System. Any agrceme and signed by the parties will be binding. (B) Buyer and Seller acknowledge that they have received, read, and understand the Rules and Pros, -- Dispute Resolution System. (See Mediation Notice.) -- (C) This agreement to mediate disputes arising from this Agreement will survive settlement. ..: 27. SPECIAL CLAUSES (1-02) (A) The following are part of this Agreement if checked: •. ? Sale & Settlement of Other Property ? Settlement of Other Property Con Contingency Addendum (PAR Form SSP) ? Tenant-Occupied Property Adden ? Sale & Settlement of Other Property Contingency ? with Right to Continue Marketing Addendum ? (PAR Form SSP-CM) ? Buyer and Seller acknowledge receiving a copy of Nis Agreement at the time of signing. ,ct NOTICE TO PARTIES: WHEN SIGNED, THLSAGREEMENT ISA BINDING CONTRACT. Behar Agreement, and all addenda, bearing the signatures ofa6 parties, constitutes acceptance ofthisAgnmese ?... m commit an attorney before signing Rthey desire legal advice. Buyer has received the Consumer Notice as adopted by the Stale Real Estate Commission at 49 I %? Buyer has received a statement of Buyer's estimated dosing costs before signing this Agreement. Buyer has read said understands the notices and explanatory information set forth in this Agents r... ? Buyer bas received the Deposit Money Notice (for cooperative sakes when Broker for Seller is ho .r. Agreement. 455 BUYER'S MAILING ADDRESS tm; t r. 1 r3 ) ? _ l _' ?7 I- aer BUYER'S CONTACT NUMBER(S): 411, 49; WITNESS T' BUYER 'U GY,z:? -L SSW s-I' cry;-,; sz WITNESS BUYER - ..? SS# i- WITNESS BUYER SS9 Seiler hereby approves the above contract this (date) § t ..- ? Seller has received the Consumer Notice os adopted by the State Real Estate Commission at 491 ? Seller has received a statement of Seller's estimated dosing costs before signing this Agreement. ? Seller but read and understands the notices and explanatory Information at forth in this Agerem SELLER'S MAILING ADDRESS: 516 Sts SELLER'S CONTACT NUMBER(S): 526 5n WITNESS SELLE$/ 522 ss# Kn!L? 523 524 WITNESS SELLER,' -d'/ 525 SS# v L ? Yto'T 5ti 521 WITNESS SELLER 528 SS9 529 53u The undersigned ? Broker for Seller ? Broker for Buyer agree m submit to mediation in accordar 531 532 BROKER FOR SELLER (Company Nome) 533 ACCEPTED BY DI 53{ 535 BROKER FOR BUYER (Company Name) 536 ACCEPTED BY -_ De 537 5as A/S-VL Page 6 of 6 4'_ "yr y facsimile troosmilsssimr (FAX) of this Parties to this transaction are advised Code §35.336. deposit money) before signing this DATE Z DATE DATE §35336. DATE;t,- / ,14 /r' DATE,.:::.:. /.. ...-- DATE with paragraph 26 of this Agreement. arise, but that there will be no ob- mediation, in accordance with the led through a mediation conference of the Home Sellers/Home Buyers y Addendum (PAR Form SOP) SR Form TOP) 536 DIJYEFI'. COPY We, the undersigned, Paul D. Smith, III and Anna K. Smith, oc property known as Farm Road, NewvW PA 17241, which is described ii dated November 19, 2861, hereby certify that no improvements, partial con have occurred with regard to the property and that the survey therefore ac( the metes and bounds of the property and that there is no recorded right of property as of October 26, 2065. Gary T. Krajailr and Kriha Krojalk, e property and they are aware them is no express Tecorded right of way to this I purchasing this property "AS IS" =a of that certain that certain survey vanes or stakings rainy depicts both ay to the described the Buyers of the operty and they are j*1 D. Smith, III Anna K. Smith Gary T. Commonwealth of Pennsylvania County of Cumberland SWORN TO AND SUBSCRIBED BEFORE ME THIS October 26, 2005. rtaawar Notary Public wmYaatepaa n,soa MaEw,P --- AW ddW 4ftha w My comrnissh GARY T. KRAJNIK and COURT OF COMMPN PLEAS ERIKA S. KRAJNIK, CUMBERLAND C UNTY, Plaintiffs PENNSYLVANIA CIVIL ACTION - LAW V. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC. Defendants The above Complaint is based upon information which I 1 counsel and information which has been gathered by my counsel matter. The language of the Complaint is that of counsel and not Complaint and to the extent that the Complaint is based upon info given to my counsel, it is true and correct to the best of my know: belief. To the extent that the content of the Complaint is that of c counsel in making this verification. I hereby acknowledge that th aforesaid Complaint are made subject to the penalties of 18 Pa.C. unworn falsification to authorities. NO. 2006- JURY TRIAL VERIFICATION ?e furnished to my preparation of this f me. I have read the nation which I have ige, information and msel, I have relied upon facts set forth in the §4904 relating to DATE: 6'1,76 dG r^ CID YJ tJ" C Zy cn C:l 't7 l A7 -C t %L James L. Goldsmith, Esquire Attorney I.D. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 717-232-7661 GARY T. KRAJNIK and ERIKA S. KRAJNIK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. PAUL D. SMITH III and ANA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF SAID COUNTY: Please enter my appearance on behalf of Defendants Barbara Woods and Exit Realty Group, Inc., only in the above-captioned action. By: Dated: • 1iq •? CALDWELL & KEARNS i ?es L. Gold Es Attorney I.D. S^115 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 CERTIFICATE OF SERVICE AND NOW, this a0 day of 2006, I hereby certify that I have served a copy of the within docume t on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Jonathan M. Crist, Esquire Duane P. Stone, Esquire PO Box 696 Dillsburg, PA 17019 Paul D. Smith and Anna K. Smith 1453 Lutztown Road Boiling Springs, PA 17007 Madison Settlement Services-Shippensburg LLC 36 W. King Street Shippensburg PA 17257 CALDWELL & KEARNS By 06328-1/103168 ?-? r,o ... ?S CJ ` (? "ii (__ "? T1 ?? „v ryf?i ?.?. ? _ .. Iil -l ti ??? ORIGINAL James L. Goldsmith, Esquire Attorney I.D. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 717-232-7661 GARY T. KRAJNIK and ERIKA S. KRAJNIK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO Jonathan M. Crist, Esquire Paul D. Smith and Anna K. Smith Duane P. Stone, Esquire 1453 Lutztown Road PO Box 696 Boiling Springs, PA 17007 Dillsburg, PA 17019 Madison Settlement Services-Shippensburg LLC 36 W. King Street Shippensburg PA 17257 YOU ARE HEREBY NOTIFIED, that the New Matter and Cross-Claims set forth herein contains averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. Respectfully submitted, C .'P L & KEf1R1VS By: James . Goldsmith, ire Atto ey I.D. No. 0 1 North Front S eet Harrisburg, Pennsylvania 17110 Date: August 10, 2006 (717) 232-7661 James L. Goldsmith, Esquire Attorney I.D. No. 27115 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 717-232-7661 Counsel for Barbara Woods and Exit Realty, Inc. GARY T. KRAJNIK and ERIKA S. KRAJNIK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND CROSS-CLAIMS OF DEFENDANTS BARBARA WOODS AND EXIT REALTY GROUP, INC. AND NOW come Defendants Barbara Woods and Exit Realty Group, Inc, by and thorough their counsel Caldwell & Kearns and files this Answer With New Matter and Cross- Claims and in support thereof avers as follows: IDENTITY OF THE PARTIES 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part. Defendant Woods is a Pennsylvania licensed real estate salesperson. FACTS COMMON TO ALL COUNTS 5. Admitted in part. Exhibit "A" to Plaintiffs' Complaint includes only the face sheet of each of the six pages of the said Agreement and does not include the reverse side of each of said six pages. 6. Admitted in part. The Agreement of Sale is based upon a Standard Form published by the Pennsylvania Association of REALTORS®. Woods assisted the Smiths in the review and completion of the said form. 7. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 8. Admitted. 9. Admitted. 10. Admitted. 11. Denied. Prior to the execution of the Agreement there was a discussion between the Krajniks and Defendant Woods as to vehicular access to the subject lot. Defendant Woods represented that to the best of her knowledge, the Deed to Woods' property, located nearby, did not include a right of way. Defendant Woods stated further that she had a discussion with her attorney who advised her that despite the absence of a recorded right of way, she had to allow travel over her property for another to gain access to his/her parcel. Defendant Woods further stated to Plaintiff Gary Krajnik that the only way to make sure as to access was to check with an attorney. 12. After reasonable investigation Answering Defendants are without knowledge or information sufficient to fonn a belief as to the truthfulness of this averment and the same is thereby denied. By way of further answer, Defendant Woods avers that she did hear representations by Defendant Paul D. Smith, III, to that effect. 13. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 14. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 15. Admitted. 16. Admitted. 17. Admitted in part. The said document speaks for itself and any characterization by any other party is denied. 18. Admitted in part. The said document speaks for itself and any characterization by any other party is denied. By way of further answer, it is admitted that no survey was recorded with the Deed. 19. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 20. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 21. Admitted. 4 22. Admitted in part and denied in part. Plaintiffs made general inquiries but did not direct them specifically to Answering Defendants. Defendant Paul Smith repeatedly assured Plaintiffs that they would have access to their property. Defendant Woods made no representation as to continued use of any access to the subject property and only represented having once seen a gate placed over one access that had been removed. Answering Defendants did not prepare the Affidavit and did not make any representation as to its purpose or effect. 23. Denied. See the proceeding answer which is incorporated herein by reference. 24. Denied. Answering Defendants did not make the representations attributed to them and therefore Plaintiffs could not have acted in reliance on them. 25. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. By way of further answer, in or about October 2005, Plaintiff Gary Krajnik telephoned Defendant Woods and said that he had talked to Earl Hoffman and had received permission to gain access to Krajnik's property over that belonging to Hoffinan. At no time did Plaintiffs make any mention to Defendant Woods that Mr. Hoffman had threatened them. 26. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 27. Denied. Defendant Woods made a statement similar to that attributed to her in response to Gary Krajnik's statement as to the unreasonable actions taken by Earl Hoffman. Defendant Woods' statement was a general comment about un-neighborly behavior of owners of mountain property to which she added that the Krajniks should get a lawyer to protect their interests. The statement was not a reference to any knowledge she had with respect to the subject property. 28. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 29. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 30. Admitted. KRAJNIKS DAMAGES 31. Admitted. 32. Admitted. 33. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 34. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 35. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. By way of further answer said losses are not compensable damages in Pennsylvania. 36, After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. COUNT ONE 37-39. The averments of Count One are directed to Defendants other than Answering Defendants. COUNT TWO 40-42. The averments of Count Two are directed to Defendants other than Answering Defendants. COUNT THREE 43-44. The averments of Count Three are directed to Defendants other than Answering Defendants. COUNT FOUR 45. No answer required. 46. Denied. Defendant Woods did not make the representations attributed to her in Plaintiffs' Complaint. 47. Denied. Defendant Woods did not make the representations attributed to her in Plaintiffs' Complaint. WHEREFORE, Answering Defendants Barbara Woods and Exit Realty Group, Inc., respectfully request this Honorable Court to enter judgment in their favor and against all others. NEW MATTER 48. Answering Defendants incorporate their answers to paragraphs 1 through 47 to Plaintiffs' Complaint as if written herein at length. 49. The identification number set forth at line 11 of the Agreement of Sale was represented to be the tax parcel identification number for the subject property by Defendants Smith who in support of said representation presented Defendant Woods with a tax bill for the property bearing that number. The Smiths represented that the said tax bill pertained to the subject property and in further support thereof executed a Listing Agreement identifying the parcel with the same number. 50. At or about the time that the subject property was listed by Defendants Smith with Answering Defendants, the Smiths represented that they had an opinion from two attorneys advising that the subject property was owned by the Smiths, without claims asserted against it, subject to easements that did not appear in the chain of title. 51. Defendant Woods, subsequent to the aforesaid advisement by Defendants Smith, contacted the law offices of Irwin & McKnight and was informed, by someone familiar with the subject parcel and who represented herself to be a real estate paralegal, that there had been good access to the property for 21 years though it was not recorded and that the property had been surveyed. 52. Answering Defendants made no independent representations as to access but merely repeated the representations communicated to them by the Sellers, Defendants Smith, which represented as same. 53. The Agreement of Sale negotiated by and between Plaintiffs and Defendants Smith provided Plaintiffs with the right to conduct a survey or surveys of the subject property which they declined to do. 54. On the reverse of page 2 of the subject Agreement of Sale, Buyers were provided with a notice advising to have a survey. 55. Plaintiffs were advised orally and in writing to consult an attorney before signing the Agreement of Sale. 56. The Agreement of Sale which is the subject of this litigation and attached to Plaintiffs' Complaint (front sides only) as Exhibit "A" provides at paragraph 24 as follows: REPRESENTATIONS (1-00) (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers, their licensees, employees, officers, or partners are not a part of this Agreement, unless expressly incorporated or stated in this Agreement. It is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement will not be altered, amended, changed or modified except in writing executed by the parties. (B) It is understood that Buyer has inspected the Property before signing this Agreement (including fixtures and any personal property stated in this Agreement. Buyer acknowledges that Brokers, their licensees, employees, officers, or partners have not made an independent examination or determination of the structural soundness of the Property, the age or condition of the components, environmental conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor have they made a mechanical inspection of any of the systems contained therein. (C) Broker(s) may perform services to assist unrepresented parties in complying with the terms of this Agreement. (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraph. 57. The said Agreement does not make representations as to ingress or egress or as to the metes and bounds of the Property. 58. Plaintiffs failed, for their own protection, to obtain a title insurance policy or certificate of title that did exclude claims as to the boundaries, quantum of land, or ingress or egress. 59. Buyers executed a Business Relationship form, made a part hereof and attached hereto as Exhibit "A" wherein they acknowledged that Answering Defendant represented the Seller; wherein they were advised to consult an attorney; wherein they were advised of the limited expertise of real estate agents (Answering Defendants) and wherein they were advised to engage qualified professionals if they had concerns regarding, among other things boundaries. 60. At paragraph 10 (C) of the said Agreement of Sale, attached to Plaintiffs' Complaint as Exhibit "A", Plaintiffs were provided with a right to make their obligation to purchase subject to the outcome of an inspection of the property, that could have included the property boundary, square footage verification and delineation, which they elected not to do. 61. Plaintiffs' cause of action may be barred in whole or in part by the applicable statute of limitations. 62. Plaintiffs' cause of action may be barred in whole or in part by the doctrine of release. 63. Plaintiffs' cause of action may be barred in whole or in part by waiver and/or estoppel. 64. Plaintiffs' cause of action may be barred in whole or in part by the Statute of Frauds. 65. Plaintiffs' cause of action may be barred in whole or in part by Parol Evidence Rule. 66. Plaintiffs' cause of action may be barred in whole or in part by the failure to state of action upon which relief may be granted. 67. Plaintiffs' cause of action may be barred in whole or in part by contributory negligence. 10 68. Plaintiffs' cause of action may be barred in whole or in part by the doctrine of economic loss. 69. Plaintiffs' ability to recover damages may be barred due to its failure to mitigate damages. 70. If the Plaintiffs sustained damages as alleged in their Complaint, which damages are strictly denied, then the damages were caused by the acts or omissions of entities or individuals over which Answering Defendants had not control, or legal duty to control. 71. Plaintiffs were represented at closing by legal counsel who had obtained a title abstract on Plaintiffs' behalf. 72. Plaintiffs' losses, if any, are attributable to the negligence and/or actionable conduct on the part of the aforesaid legal counsel who conducted closing and reviewed the abstract on Plaintiffs' behalf. WHEREFORE, Answering Defendants Barbara Woods and Exit Realty Group, hie., respectfully request this Honorable Court to enter judgment in their favor and against all others. CROSS-CLAIM PURSUANT TO Pa. R.C.P. 2252(d) Barbara Woods and Exit Realty Grouo Inc vs Paul D Smith III and Anna K Smith 73. Answering Defendants incorporate those allegations and causes of action pleaded by Plaintiffs in the original Complaint against Defendants Paul D. Smith, III and Anna K. Smith as though the same were set forth here at length. 74. Defendants Paul D. Smith, III and Anna K. Smith are alone liable to Plaintiffs or liable over to Answering Defendants or jointly or severely liable to Plaintiffs. 11 WHEREFORE, Answering Defendants Barbara Woods and Exit Realty Group, Inc., respectfully request this Honorable Court to enter judgment in their favor and against all others. CROSS-CLAIM PURSUANT TO Pa. R.C.P. 2252(d) Barbara Woods and Exit Realty Group. Inc., vs. Madison Settlement Services- Shippensbure. LLC 75. Answering Defendants incorporate those allegations and causes of action pleaded by Plaintiffs in the original Complaint against Defendants Madison Settlement Services- Shippensburg, LLC., as though the same were set forth here at length. 76. Defendants Madison Settlement Services-Shippensburg, LLC., are alone liable to Plaintiffs or liable over to Answering Defendants or jointly or severely liable to Plaintiffs. WHEREFORE, Answering Defendants Barbara Woods and Exit Realty Group, Inc., respectfully request this Honorable Court to enter judgment in their favor and against all others. CALDWELL & KEARNS By: ttorney I.D. 711 3631 North Fr tre Dated: August 10, 2006 Harrisburg, PA 17110 (717) 232-7661 12 VERIFICATION I verify that the averments in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unworn falsification to authorities. Date: -D? By: .&? S' .4q On behalf of Exit Realty Inc. VERIFICATION I verify that the averments in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Date: 7(- OC ole By: Barbara Woo &s BUSINESS RELATIONSHIP BR BETWEEN BROKER AND BUYER This Nrm rtcommrndrd 1md qpr d fa, Minot msviaed m use by, the members oftbe PenoVJvMi%AmaeieCmm of REALTORSr (PAR). 1 BROKER (Company) z LICENSEE(S) - - - 3 Buyer has read and received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code §35.336 4 and the Notices to Buyers in this agreement. Pennsylvania low requires that a business relationship between Broker and a s Buyer be in writing, 5 6 N" n, Tilt rams "buyer," ".vller,"end "buy" also wia be e"nshued /" mean "tenant,"'•1..d1o d,,"end "tint,"ntprMvey, /broagboa/ Mk agreement. a 1a I1 12 13 14 15 15 17 I0 19 29 21 23 24 25 26 27 10 29 30 3i 3? 33 34 35 36 97 00 39 40 41 41 49 44 45 49 47 49 19 SE 5: s 5 5! 51 BUSINESS RELATIONSHIP AS DESCRIBED IN THE CONSUMER NOTICE Data Buyer have a business relationship with another broker? ? Yes ? No If yes, explain: Broker and Buyer agree to the following business relationship as allowed by Broker's Company policy: :© SELLER AGENT (for properties listed with BrokerySUBAGENT FOR SELLER(for properties listedwith other companies). ? TRANSACTION LICENSEE (for properties not listed with Broker; however, if property is listed under an agency contract with Broker, Broker is a Seller's Agent). ? BUYER AGENT (for properties listed with Broker and other companies, and for properties not listed with any broker) Broker will be Buyer's Agent under the terms agreed to in the Buyer Agency Contract below. EXCLUSIVE BUYER AGENCY CONTRACT 1. TERM This Contract applies to any property that Buyer chooses to buy during the term of this Contract. Buyer will not enter into a Buyer Agency Contract with another brokerAicensee that begins before the Ending Date of this Contract. Starting Date: This Contract starts when signed by Buyer and Broker, unless otherwise stated here: Ending Date: This Contract ends (A) If Buyer is negotiating or has entered into an Agreement of Sale, this Contract ends upon settlement. (B) If Buyer is negotiating or has signed a lease, this Contract ends upon possession. 2. BROKER'S FEE (A) It is Broker's policy to accept compensation offered by the listing broker and/or the seller. Broker may be paid a fee that is a percentage of the purchase price (or in the case of a lease, a percentage of the total amount of not due over the term of the lease). Even though Broker's Fee, or a portion of it, may be paid by a seller or listing broker, Broker will continue to represent the interests of Buyer. (B) 1. If the amount received in paragraph 2(A) from a listing broker is less than then Buyer will pay Broker the difference or include it as a term in the Agreement of Sale for the seller to pay. 2. If the amount received in paragraph 2(A) from a seller not represented by a broker is tens than _, then Buyer will pay Broker the difference or include it as a term in the Agreement of Sale fm the seller to pay. (C) In addition to any amounts paid to Broker in subparagraphs 2(A) and/or 2(B), Buyer will pay Broker an additional amount of as part of Broker's Fee. (D) I. Broker's Fee is earned it Buyer enters into a sale or lease agreement during the term of this Contract, whether brought about by Broker, Broker's agents or by any other person, including Buyer. 2. If Buyer enters into a sale/lease agreement for a property after the Ending Date of this Contract, Buyer will pay Broker's Fee: (a) if the sale/lease is a result of Broker's actions during the term of this Contract, OR (b) if the property was seen during the term of this Contract, AND (c) Buyer is not under an exclusive buyer agency contract with another broker at the time Buyer enters into a sale/lease agreement. 3. DUALAGENCY Buyer agrees that Broker may also represent the seller of the property that Buyer might buy. The Broker is a DUAL AGENT when representing both the seller and the buyer in the sale of a property. 4. DESIGNATED AGENCY ? Not Applicable. ? Applicable. Broker may designate licensees to represent the separate interests of Buyer and the seller. Licensee (identified above) is the Designated Agent, who will act exclusively as the Buyer Agent. If Licensee is also the Seller Agent, then Licensee is a DUAL AGENT. 5. TRANSFER OF THIS CONTRACT Buyer agrees that Broker may transfer this Contract to another broker. Broker will notify Buyer immediately in writing if Broker transfers this Contract to another broker. 6. OTHER r 6 9 19 11 12 is 14 15 16 A 16 19 20 21 V 23 24 25 25 27 20 n 30 A 32 o 34 25 36 37 30 29 40 41 42 43 a 45 46 42 66 49 50 51 52 51 55 56 sr This is the entire agreement between Broker and Buyer. Any verbal or written agreements that were made before are not 57 m a part of this agreement. Any changes or additions to this agreement must be in writing and signed by Broker and Buyer. se 59 Return by facsimile (FAX) transmission constitutes acceptance of this agreement. 59 bo NOTICE BEFORE SIGNING: IF BUYER HAS LEGAL QUESTIONS, BUYER IS ADVISED TO CONSULT AN ATTORNEY. 60 61 Buyer gives permission for Broker to send information about this transaction to the fax number(s) and/or e-mall address(es) 61 62 listed below. 62 63 BUYER'S MAILING ADDRESS: v M % as PHONE: FAX: E-MAIL; 6s DATE 6s n DATE. n (Company Name) ;D BY g` n ., DATE bs COPYRIGHT PRIa1r5Y1YAN4A AanOCIAnIO% Or Rx41.70R9a 2004 710,1 lrnrrrar"?r,rs• NonceS TO Hot, IRS The toW.mu, Notre, d, to fan.-mmW, nth Nna'sA,nns.Seiler=Agents,,, SuWgnta for Seller. a Tmmz,ha, Lfrmaees Mn m<Lmn'IMgea IoM Mon In' cooland ond.Mmde the Consumer Notice adapted bs We Pe teryhania SNIe Real Estate Commission at 49 Pa. Code §JQAM. The Coara an, Narita. Windt, the doti., defmdiom a1 bmiaeartebfiomhiM. gad ond - mm. ul..14, I., eooperatioe e'JW other brolme. pmsibilitks W dual .,.p ad dissipated a,ONw Mired dva eu, and ..,I- 4 the Real EaNte R.osery Fled aed .Quin, dasrif [roan are iNon'mled here as P." of this dndir are m dhao¢ All. here I. Weir ratio. The lean, and len,rh of the Wainru relmimmia p, the Peer, mod We nag otters ins d m Brolrr xdu tuck. hate beea det.- mined as a ,mold of eegfmrioum bedwen Broker gad Bull and has. cot been rot or rOadomeadM br am' auxWtioa a "TUTORS'. SER% it," TO SELLER Noket . po,Ide sena'em to a sell. hn ,laid, Mek. aso,pa a fee Snch -,,Ac- mac mdude, but are ad WnMal N, hsh, fees: den dacsuneul prep eaha, mMu9[ mtWcIatoo rex mrol hn dawu, Numnd,ex ere. Wile tandem ad pr"MIN t Cv,,ae , mdem,E memmase. rn'•mmbou. Lepma, or ueyema, manses Noker sell drxlose a Buy. d a8 f.o me to be Food b. the tells, OTHER BL4ERS Lam,eee mac dmm to IUruenl lie' ne pmpeNes N nthea buses. CONFLICT (W INTEREST A,xnpx 14 11 a'. n mhsm Broker a Lcen.- Joe NomW or ^sood Mtterest m that g,"m, oisne Bmi. or Lisroet Cum of pot Bus oroil.,'betinn ,s dfier If Brokx or sof Beak., h®moo, Ilea aftmrn/um nn, Brokeei mwnod] Bas ail a hell' DEPOSIT NIONEX ,a. Mok. 110 keep IQ, "A Ss,I to me John, Nall., aim mill Lor li all de oars l mane= that Narket lacarne. r.snzs m a„ esoum nmml as rNmrol bs real eafmb, laces , Laws and regN:mms= mW dr sale a cmnpleted or IN, reenieut aflcile n lemmab ed Bm. agsees lot BmLe, Len Iran to del-C mass mca<bol d-L dot Is reaen'ed as Alsosd moues tow Bacels offer Ins been arttVted ,. B, It Bases ryme Nolan laeoose m a 1.,, -111., Ne'IN. of del-I name=. Has Is IM Vac lac.,see, and B.L.', m tore!," I- and msL CIA IL RIGHTS ACTS FM.al m eL mte Imes male a W,,l lima ee8., (Iola. so .wmne tt lase Rk M CI?LOR RELIGION- REITOKILIS tREE 1, SEX, D4SABILT-Ipln tralmmenhb, FakBLLIL STATL!S Ichdd,a, mud. IS}-ems at.,et TOE Ip- m olds N'TIraNAL I-UiW USE OR HNNDLINGTRNININO OF SUPR Rf OR GUIDE ANINLALS, of tlm FT(T (¢ RELTTIONSHIP(IRASsa K'LITION TO AN WDH-NUAL KW V N Tf I RAI EA DISABILITY at Osous IIQ mPosu, to sell, some of Lent pep.lmm, Ion mmUzc, a If dePmit omoents, a as remora fc' ads deemou,elatu, to file sale o„enUl of Pmprtt. EXPERTISE OF REAL ESTATE AGENTS Hama, 11 muo Rest E tale klsW ate ,egmell W be licensed fm We Canto,,n,estlln of Pemvyha m ad tee obbMMM b Wsdese ad,e,:e fa'om 4oot a pml^'Mc dul me,e.>aisaw) aPpreut to ,someone mW a ,, W c m the nu,detu, of rest popeQ U! Il Bnsn mm,b udonnahon ,epmdu, >y-Us mnWhoa= os ron,POnesM1' of lle laN?esK mludt .tie oot,de We AZn,r; eymWse, Ife,dc,ce sB tlm npinop,ate 1. as m,aud mlmnhl le' ef . I! Bus - n ..mole e mtil.IeEd as t_ tfi,n M,xe. Poase, o nmommged ro 1-1, 'i's rosier of a, amnmmrt, Ma "',"I ogle, app„gmale Pm( .root JAM ER:Is OPTIONS Unless Bas. and the seu. age,, oWer,,I, real estate is sold m to prom, Condum.. B i. Bas.', teslmaalbilip'to relish' him- xeB ar h-se f that the -station of the Ircapertr ix s disfxtorn. Bose, Leas reya d, Chat rW "peas he Wgr.CM, .1 Bal.'s .CPm•e, to Qualified 'INfesLOnah do Aedermiae We tom iOom a the structure or its co almemU, bear a concern ms iaclade. but are and limited to, a. folly iu,: electrical plumbi.,, heading -aklaaN,, a NNUCk ito,: q,pWuc .gad futures. uNar tefJ.MNe, baumem. roof leakag: Waotiarf.: arWrtm, area formaMeksde foam insulation. carNrn monotale. ratite, and amt IIIItiro OI Oilra v,e,:.Natalestroci., I.,. urftoo le - mat. eers'ke..&... O s,xtem:aadlead- Cased Paer. Bm'er'r "Not for an w e"Isti-ma.ld be made m Broke before mteriog into ao Ageemml of Sale or lame. Btu, er M ad, IIIA that information re, o ion pro"tim, I...Wered for Purchase be B.,er has been pcoNdM bs the seller or ,a,erl beoker. Such mforaw,ora m iadude, bar ix cod tmdLe4 to, the leformattoo on the Seller's Prol,.ry D-1-mare Sbremeet iadaAN, eotummamal Onsidmes: NILS wfurmmtua iodedta, infarmaioo Mmdu, rexlr"udioaa late, Iosna asomll swain, fees. atsiog r..tcrines, dimen ao ts, boundaries lif iAeerffied l: and fort cm, informanom Unless otherwise oCM. Broker it., . vdhed the ascurms, of Obit i sfacmmism, and B.... I, ad, med m ietmli,me ih xOOQO'. FEES Btu ude'du,ds Wes. se edha a Sella Aeod lob }.a for ScUO or Tom cachou Loen.ee. Bm\n ums race-.a tae tam IIm Blot e oWae pahq aB,mn Ina cQ,eCQIC ,red, otler broken Lebo alas muq,ercae Bade, ba.ad IN a f emem:,e Of Cite PluebaAe Rue Aga SAln It."Snbagmnn5elk, o, a Tlau.zmsn LC.e«. B,okn No, rot 1101:- aa' tee to Baca uMNvMa.mmM ,.noon n,evt CERTIFICATE OF SERVICE AND NOW, this /00/'tay of 2006, I hereby certify that I have served a copy of the within document dfi/the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Jonathan M. Crist, Esquire Duane P. Stone, Esquire PO Box 696 Dillsburg, PA 17019 Paul D. Smith and Anna K. Smith 1453 Lutztown Road Boiling Springs, PA 17007 Madison Settlement Services-Shippensburg LLC 36 W. King Street Shippensburg PA 17257 CALDWELL & KEARNS By 06328-1/103751 _ 4,. '? ? mr ? m o , ; c?? ? _. V ? L" ? C 2 C- . °? --sr ,- - `K `--?> C7 fri .=' l,.J LJt x,? .,L a Duane P. Stone, Esquire ATTY ID 85715 Jason B. Duncan, Esquire ATTY ID 87946 Law Offices of Duane P. Stone PO Box 696 Dillsburg, PA 17019 Ph (717) 432-2089 Fx (717) 432-0158 GARY T. KRAJNIK and ERICKA S. KRAJNIK, PENNSYLVANIA Plaintiffs vs. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED ANSWER TO NEW MATTER AND CROSS-CLAIMS OF DEFENDANTS BARBARA WOODS AND EXIT REALTY GROUP. INC. AND NOW come the Plaintiffs, GARY T. KRAJNIK and ERICKA S. KRAJNIK who file this Answer to New Matter and Cross-Claim of Defendants Barbara Woods and Exit Realty Group, Inc., of which the following is a response: 48. No answer required. 49. Averments of this paragraph are directed to other Defendants not the answering Plaintiffs. 50. Averments of this paragraph are directed to other Defendants not the answering Plaintiffs. 51. Averments of this paragraph are directed to other Defendants not the answering Plaintiffs. 52. After reasonable investigation Answering Plaintiffs are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the same is thereby denied. 53. Admitted. 54. Admitted. 55. Admitted. 56. Admitted. 57. Admitted in part. The Agreement does not make representations as to ingress or egress, however, it does describe the metes and bounds of the Property. By way of further answer, the metes and bounds of the Property described in the Agreement does not describe the parcel of land that the Krajniks believed they were buying but rather describes the parcel located adjacent to the eastern boundary of the parcel. 58. Admitted. 59. Admitted. 60. Admitted in part. As part of the Agreement, Plaintiffs were provided with a right to make their obligation to purchase the subject property to the outcome of an inspection of the property, and Plaintiffs availed themselves of this right. By way of further answer, prior to Closing the Krajniks conducted an inspection of the subject property with Defendant, Paul Smith. During this inspection Defendant Paul Smith assured Plaintiffs that their was vehicular access available to the property and that such access would continue to be available without restrictions or problems. During this inspection Defendant Paul Smith also showed the Plaintiffs the boundaries of the subject property. 61. No answer required as this is not an averment of a new fact but is instead an argument of law. 62. No answer required as this is not an averment of a new fact but is instead an argument of law. 63. No answer required as this is not an averment of a new fact but is instead an argument of law. 2 64. No answer required as this is not an averment of a new fact but is instead an argument of law. 65. No answer required as this is not an averment of a new fact but is instead an argument of law. 66. No answer required as this is not an averment of a new fact but is instead an argument of law. 67. No answer required as this is not an averment of a new fact but is instead an argument of law. 68. No answer required as this is not an averment of a new fact but is instead an argument of law. 69. No answer required as this is not an averment of a new fact but is instead an argument of law. 70. No answer required as this is not an averment of a new fact but is instead an argument of law. 71. Denied. Plaintiffs were not represented by any legal counsel during the Closing and did not have a title abstract for review. 72. Denied. As Plaintiffs were not represented by any legal counsel at the Closing, Plaintiffs' loses can not be attributable to any negligence by such legal counsel. WHEREFORE, Answering Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against all others. LAW OFFICE OF DUANE P. STONE, P.C. By: Duane P. Stone, Esq. Atty ID No 85715 Jason B. Duncan, Esq. Atty ID No 87946 8 N. Baltimore Street Dated: August 25, 2006 Dillsburg, PA 17109 717-432-2089 3 co L me r saw- ?m co IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA GARY T. KRAJNIK and ERICKA S. KRAJNIK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day I have served a true and correct copy of the foregoing Answer to New Matter and Cross-Claim of Defendants Barbara Woods and Exit Realty Group, Inc., to: Anthony L. DeLuca, Esq. 113 Front Street P. O. Box 358 Boiling Springs, Pennsylvania 17007 Dated: Z $ ' G 6 Duane P. Stone, Esquire Attorney for Petitioner Law Offices of Duane P. Stone, P.C P.O. Box 696 Dillsburg, PA 17019 717-432-2089 N r o _ S.. 1 ?? f ': C n -rl G? ? ff O T D ?? 7m co IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA GARY T. KRAJNIK and ERICKA S. KRAJNIK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants NO. 2006-3176 CIVIL TER1; d Q z s; ;o UJ ;J L' CIVIL ACTION LAW r c JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day I have served a true and correct copy of the foregoing Answer to New Matter and Cross-Claim of Defendants Barbara Woods and Exit Realty Group, Inc., to: James Goldsmith, Esq. Caldwell & Kearns 3631 N. Front Street Harrisburg, PA 17110 Dated: Duane P. Stone, Esquire Attorney for Petitioner C -n oa, r• m Law Offices of Duane P. Stone, P.C P.O. Box 696 Dillsburg, PA 17019 717-432-2089 ?- m C* m ? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA GARY T. KRAJNIK and ERICKA S. KRAJNIK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants c? NO. 2006-3176 CIVIL TER a^ o M rr r: C= m l ZV C_ o CIVIL ACTION LAW _ JURY TRIAL DEMANDED Co ` I HEREBY CERTIFY that on this day I have served a true and correct copy of the foregoing Answer to New Matter and Cross-Claim of Defendants Barbara Woods and Exit Realty Group, Inc., to: David R. Breschi, Esq. Madison Settlement Services 9 Center Square, Suite 1 Hanover, Pennsylvania 17331 Dated: -Z g- 0,6 amam 4 Duane P. Stone, Esquire Attorney for Petitioner Law Offices of Duane P. Stone, P.C P.O. Box 696 Dillsburg, PA 17019 717-432-2089 o PT c cc, -, N ?n o ti ? ^ C,? O rn ? y A Co K DUGAN, BRINKMANN, MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR., ESQUIRE ATTORNEY ID # 23692 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 GARY T. KRAJNIK and ERIKA S. KRAJNIK vs. Counsel for Defendant, Madison Settlement Services- Shippensburg, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PAUL D. SMITH III and ANNA K. SMITH, NO. 2006-3176 CIVIL TERM MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC, BARBARA WOODS CIVIL ACTION LAW and EXIT REALTY GROUP, INC. JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the Defendant, Madison Settlement Services- Shippensburg, LLC, only, in connection with the above-captioned matter. DUGAN BRINKMANN MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR. CERTIFICATION I, Eugene J. Maginnis, Jr., attorney for Defendant, Madison Settlement Services-Shippensburg LLC, hereby certify that I am duly authorized to make this certification; that on the 21st day of September, 2006, I did cause a true and correct copy of my Entry of Appearance to be mailed by United States regular mail to counsel and unrepresented parties addressed as follows: James I. Goldsmith, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Jonathan M. Crist, Esquire Duane P. Stone, Esquire P.O. Box 696 Dillsburg, PA 17019 Paul D. Smith and Anna K. Smith 1453 Lutztown Road Boiling Springs, PA 17007 DUGAN, BRINKMANN, MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR. C ar -t? c mi- --0 i= ,'?. r -rn DUGAN, BRINKMANN, MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR., ESQUIRE ATTORNEY ID # 23692 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 GARY T. KRAJNIK and ERIKA S. KRAJNIK vs. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC, BARBARA WOODS and EXIT REALTY GROUP, INC. Counsel for Defendant, Madison Settlement Services- Shippensburg, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED ANSWER OF DEFENDANT MADISON SETTLEMENT SERVICES-SHIPPENSBURG LLC TO CROSSCLAIM OF BARBARA WOODS AND EXIT REALTY GROUP INC. Madison Settlement Services-Shippensburg, LLC, by its attorneys, Dugan Brinkmann Maginnis and Pace responds to the New Matter Crossclaim filed against it as follows: 75-76. Denied. Paragraphs 75 and 76 constitute conclusions of law to which no responsive pleading is required. WHEREFORE, answering defendant requests this Honorable Court to dismiss the New Matter Crossclaim filed against it and grant such other and further relief which may be appropriate. DUGAN BRINKMANN MAGINNIS AND PACE BY: EUGENE]. MAGINNIS, JR. VERIFICATION Eugene J. Maginnis, Jr., Esquire, Counsel for Defendant, Madison Settlement Services-Shippensburg, LLC, avers that the allegations contained in the foregoing Answer to Crossclaim are true and correct to the best of his knowledge, information and belief; and that the statements in said pleading are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. /11?? Eugene J. Maginnis, Jr. Verified this 21 st day of September, 2006. CERTIFICATION I, Eugene J. Maginnis, Jr., attorney for Defendant, Madison Settlement Services- Shippensburg LLC, hereby certify that I am duly authorized to make this certification; that on the 21 st day of September, 2006, I did cause a true and correct copy of my Answer to Crossclaim to be mailed by United States regular mail to counsel and unrepresented parties addressed as follows: James 1. Goldsmith, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Jonathan M. Crist, Esquire Duane P. Stone, Esquire P.O. Box 696 Dillsburg, PA 17019 Paul D. Smith and Anna K. Smith 1453 Lutztown Road Boiling Springs, PA 17007 DUGAN, BRINKMANN, MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR. CY v a- ?- , ,-t rr T ' "C7 ?r ? _ r CD SHERIFF'S RETURN - REGULAR CASE NO: 2006-03176 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KRAJNIK GARY T ET AL VS SMITH PAUL D III ET AL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WOODS BARBARA the DEFENDANT at 1415:00 HOURS, on the 6th day of June , 2006 at 6 KACEY COURT MECHANICSBURG, PA 17055 by handing to BARBARA WOODS a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing Service 6.00 9.68 Affidavit 00 Surcharge 10.00 R. Thomas Kline .00 25.68-? 06/15/2006 '7, 1p, vt- DUANE STONE Sworn and Subscibed to By: -'? before me this day Deputy She ff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-03176 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KRAJNIK GARY T ET AL VS SMITH PAUL D III ET AL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon EXIT REALTY GROUP INC the DEFENDANT at 1415:00 HOURS, on the 6th day of June , 2006 at 6 KACEY COURT MECHANICSBURG, PA 17055 BARBARA WOODS, REALTOR by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 ?,°'? Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00? 06/15/2006 DUANE STONE Sworn and Subscibed to By: before me this day Deputy Sheri of A.D. SHERIFF'S RETURN - NOT FOUND CASE NO: 2006-03176 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND KRAJNIK GARY T ET AL VS SMITH PAUL D III ET AL R. Thomas Kline duly sworn according to law, inquiry for the within named MADISON SETTLEMENT SERVICES unable to locate Them in his nnnanT T TTTT f_ rTnm T(ILI ,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and DEFENDANT SHIPPENSBURG LLC but was bailiwick. He therefore returns the the within named DEFENDANT SHIPPENSBURG LLC 36 W KING STREET , NOT FOUND , as to MADISON SETTLEMENT SERVICES SHIPPENSBURG, PA 17257 PER NEIGHBOR, THERE IS SELDOM ANYONE AT GIVEN ADDRESS. Sheriff's Costs: So answers: Docketing 18.00";,f'= Service 35.20 $? . Not Found 5.00 R. Thomas Kline Surcharge 10.00 Sheriff of Cumberland County Postage .39 68.59./ DUANE STONE 06/15/2006 Sworn and Subscribed to before me this day of , A.D. "' GARY T. KRAJNIK and ERIKA S. KRAJNIK, Plaintiffs VS. PAUL D. SMITH, III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants Sir: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2006-3176 Civil Term : JURY TRIAL DEMANDED Kindly enter my appearance in the above captioned matter on behalf of Paul D. Smith, III and Anna K. Smith. By: a 'r?C • Anthony L. De uca, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 TO: Curtis R. Long, Prothonotary DATE: October 6, 2006 ? ?..? C} ? ? ?'_ ?^ -r: G> ?Z r?' ? ??-. ??, ?-, 1, ? , Y "`_ -o _ - "?J . _ ?.- .-t :: ?' cT` GARY T. KRAJNIK and ERIKA S. KRAJNIK, Plaintiffs VS. PAUL D. SMITH, III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants To: Duane P. Stone, Esquire P.O. Box 696 Dillsburg, PA. 17019 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW NO. 2006-3176 Civil Term JURY TRIAL DEMANDED James L. Goldsmith, Esquire CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA. 17110 Eugene J. Maginnis, Jr. Esquire DUGAN, BRINKMANN, MAGINNIS AND PACE 1880 John F. Kennedy Blvd 4th Floor Philadelphia, PA 19103 You are hereby notified that the Answer with New Matter and Cross-Claims set forth herein contains averments against you to which you are required to respond within twenty (20) days after service thereof. Failure to do so may constitute an admission. Dated Anthony L. D ca, Esquire Attorney ID # 18067 113 Front Street P. O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 Attorney for Paul D. Smith, III and Anna K. Smith GARY T. KRAJNIK and ERIKA S. KRAJNIK, Plaintiffs VS. PAUL D. SMITH, III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2006-3176 Civil Term JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND CROSS CLAIMS OF DEFENDANTS PAUL D. SMITH AND ANNA K. SMITH AND NOW comes the Defendants, Paul D. Smith, III and Anna K. Smith, by and through their counsel, Anthony L. DeLuca, Esquire and file this Answer with New Matter and Cross Claim and in support thereof aver as follows: IDENTITY OF THE PARTIES 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. FACTS COMMON TO ALL COUNTS 5. Admitted in part and denied in part. It is admitted that on or about October 13, 2005 the Smiths as Sellers and the Krajniks as Buyers entered into an Agreement of Sale for a certain parcel of vacant mountain land located in Penn Township, Cumberland County, Pennsylvania designated as parcel "31-13-0112-014B. It is specifically denied that the copy of the Agreement of Sale attached as Exhibit "A" is the complete document. 6. Admitted. 7. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 8. Admitted in part and denied in part. It is admitted that at the time of the execution of the Agreement of Sale the Smiths were the owners of an approximately 5 acre parcel of land situated in Penn Township, Cumberland County. It is specifically denied that said parcel of land was designated as 31-12-0328-081 by Quitclaim Deed from the Community Baptist Church dated and recorded October 23, 1998 at Deed Book 187, Page 828 in Cumberland County. To the contrary, the approximate 5 acre parcel of land obtained from the Community Baptist Church dated and recorded October 23, 1998 in Deed Book 187, Page 828 was designated as 31-13-0112-014B as set forth in the 1998 Real Estate Tax Atlas for Cumberland County. 9. Admitted. 10. Admitted. 11. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 12. Admitted in part and denied in part. It is admitted that during the inspection of the boundaries of the former church property prior to closing the Krajniks made direct inquiry of the Defendant, Paul D. Smith, III regarding vehicular access to the Former Church Parcel. It is specifically denied that the Defendant, Paul D. Smith, III, assured Plaintiffs that such assess was available and would continue to be available without restrictions or problems. To the contrary, Paul D. Smith, III indicated that there were two (2) ways to get to the property. One was a fire lane which he always used and the second way was through the Hoffinan property. The Defendant, Paul D. Smith, III, indicated that the people were very friendly and he had never been denied access to the property. 13. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 14. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 15. Admitted. 16. Admitted. 17. Denied. It is specifically denied that the tendered Deed recites that it is for the non-existent numbered parcel 31-13-0112-014. To the contrary, parcel number 31-13-0112-014B existed at the time the Deed was tendered. 18. Admitted in part and denied in part. The tendered Deed speaks for itself and any characterization by any other party is hereby denied. After reasonable investigation, Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and the averment is hereby denied. 19. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 20. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 21. Admitted. 22. Denied. The averment as alleged is specifically denied. To the contrary, the Defendants, Paul D. Smith, III and Anna K. Smith, told the Plaintiffs that they had never had a problem with access to the property but could not guarantee that the Defendants would not have a problem. By way of further Answer, the Defendants, Paul D. Smith, III and Anna K. Smith, before settlement, told the Plaintiffs that if they had any concerns about access to the property they should check with other people along the right of way before closing on the property. 23. Denied. The averments as set forth by the Plaintiffs are specifically denied. To the contrary, the Defendants, Paul D. Smith, III and Anna K. Smith, state that the Defendant, Paul D. Smith, III took the Plaintiffs and their daughter up to the property by way of Blind Lane on, at least, two (2) occasions prior to the real estate settlement. 24. Denied. It is specifically denied that the Defendants, Paul D. Smith, III and Anna K. Smith, made representations of access as averred. See the proceeding answers regarding the issue of access which are incorporated herein by reference. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 25. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. By way of further Answer, the Plaintiffs had been shown access to the Former Church Tract by way of Blind Lane on at least two (2) occasions prior to the real estate settlement by the Defendant, Paul D. Smith, III. 26. Denied. The averments as set forth herein are specifically denied. To the contrary, the Plaintiffs were advised of the means of access to the property by the Defendant, Paul D. Smith, III, during negotiations for the purchase of the property and prior to the real estate settlement. See prior answers which are incorporated herein by reference. 27. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 28. Denied. The averments set forth in this Paragraph are specifically denied. To the contrary, the Defendants, Paul D. Smith, III and Anna K. Smith, were never denied access by Earl Hoffinan to the Former Church Tract. By way of further Answer, the Plaintiffs were informed by Paul D. Smith, III that there were two (2) ways to gain access to the property. One way was through the Hoffman's private property which they, the Smiths, did not use. The other way was through Blind Lane which they, the Smiths, always used. 29. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 30. Denied. It is specifically denied that on or about mid November, 2005 the Krajniks notified the Smiths about the problems with the legal description on the Tendered Deed and their inability to obtain access to the Former Church Property. Strict proof thereof is demanded at trial. KRAJNIKS DAMAGES 31. Admitted. 32. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 33. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 34. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 35. Denied. After reasonable investigation Paul D. Smith, lII and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 36. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. COUNTI KRAJNIKS V. SMITHS - BREACH OF CONTRACT (WARRANTY) 37. The Answers in paragraphs 1-36 are incorporated herein by reference as if set forth in full. 38. Denied. The Tendered Deed from the Smiths has not been included as an Exhibit to this Complaint and the Smiths therefore specifically deny this averment. 39. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. By way of further Answer, this averment is a conclusion of law to which no responsive pleading is required. WHEREFORE, the Defendants, Paul D. Smith, III and Anna K. Smith, respectfully request that this Honorable Court deny Plaintiffs prayer and enter Judgment in favor of the Defendants, Paul D. Smith, III and Anna K. Smith, and against all others. COUNT II KRAJNIKS V. SMITHS - NEGLIGENT MISREPRESENTATION 40. The Answers in Paragraphs 1-39 of this Complaint are incorporated herein by reference as if set forth in full. 41. Denied. After reasonable investigation Paul D. Smith, III and Anna K. Smith are without knowledge or information sufficient to form a belief as to the truthfulness of this averment and therefore said averment is hereby denied. 42. Denied. The averment as set forth herein is specifically denied. The defendant, Paul D. Smith, III did not make the representation attributed to him. To the contrary, the representations made by the Defendant, Paul D. Smith, III, regarding public access to the Former Church Parcel as set forth in prior paragraphs hereinabove in this Answer were true and accurate and were not made for the purpose of inducing the Krajniks to enter the Agreement of Sale and to complete the closing. By way of further Answer, public access to the Former Church Parcel was and is available to the Plaintiffs. WHEREFORE, the Defendants, Paul D. Smith, III and Anna K. Smith, respectfully request that this Honorable Court deny Plaintiffs prayer and enter Judgment in favor of the Defendants, Paul D. Smith, III and Anna K. Smith, and against all others. COUNT III KRAJNIKS V. MADISON SETTLEMENT SERVICES - SHIPPENSBURG PROGESSIONAL NEGLIGENCE 43. The Answers to Paragraph 1-42 of this Complaint are incorporated by reference as if set forth in full. 44. Denied. The averments contained in Count III of the Complaint are directed to a Defendant other than the Defendants, Paul D. Smith, III and Anna K. Smith, and require no responsive pleading from the Smiths. To the extent a responsive pleading is required, the averments stated in Paragraph 44 a through i are specifically denied. COUNT IV KRAJNIKS V. WOODS AND EXIT NEGLIGENT MISREPRESENTATION 45. The Answers to Paragraph 1-44 of this Complaint are incorporated by reference as if set forth in full. 46. Denied. The averments contained in Count IV of the Complaint are directed to a Defendant other than the Defendants, Paul D. Smith, III and Anna K. Smith, and require no responsive pleading from the Smiths. To the extent a responsive pleading is required, the averments stated in Paragraph 46 are specifically denied. 47. Denied. The averments contained in Count IV of the Complaint are directed to a Defendant other than the Defendants, Paul D. Smith, III and Anna K. Smith, and require no responsive pleading from the Smiths. To the extent a responsive pleading is required, the averments stated in Paragraph 47 are specifically denied. NEW MATTER 48. The Defendants, Paul D. Smith, III and Anna K. Smith, incorporate by reference their Answers to Paragraphs I through 47 of Plaintiffs' Complaint as set forth in full. 49. The Defendant, Madison Settlement Services - Shippensburg, LLC, provided to the Defendants, Paul D. Smith, III and Anna K. Smith, the "language" for the Deed in question and required that "language" to be used in the description of the property despite being aware of the description given to Smiths when they acquired the property and which description was proposed by the Smiths. A copy of the "language" for the Deed is attached hereto, incorporated herein by reference and marked as Smiths Exhibit "A". 50. The Agreement of Sale between the Plaintiffs and the Defendants, Paul D. Smith, III and Anna K. Smith, stated that the Plaintiffs had the right to conduct a survey of the property at issue which they declined to do. 51. The Plaintiffs were advised to consult with an attorney prior to signing the Agreement of Sale. 52. The Agreement of Sale does not make representations with respect to ingress or egress to the property nor to the metes and bounds of the property. 53. The Plaintiffs had the opportunity to obtain title insurance on the property in question but failed to do so. 54. The Plaintiffs, pursuant to Paragraph 10 (C) of the Agreement of Sale, had the right to make the purchase of the property contingent upon an inspection of the property which was not done. 55. The cause of action by Plaintiffs may be barred in whole or in part by the applicable statute of limitations. 56. The cause of action by Plaintiffs may be barred in whole or in part by the doctrine of release. 57. The cause of action by Plaintiffs may be barred in whole or in part by waiver and/or estoppel. 58. The cause of action by Plaintiffs may be barred in whole or in part by the Statute of Frauds. 59. The cause of action by Plaintiffs may be barred in whole or in part by the Parol Evidence Rule. 60. The cause of action by Plaintiffs may be barred in whole or in part by the failure to state an action upon which relief may be granted. 61. The cause of action by Plaintiffs may be barred in whole or in part by contributory negligence. 62. The cause of action by Plaintiffs may be barred in whole or in part by the doctrine of economic loss. 63. The cause of action by Plaintiffs may be barred due to their failure to mitigate damages. 64. Any damages allegedly sustained by the Plaintiffs, which damages are strictly denied by the Defendants, Paul D. Smith, III and Anna K. Smith, were caused by the acts or omissions of Madison Settlement Services - Shippensburg, LLC over which the Smiths had no control or duty to control. 65. The Plaintiffs were represented at closing by Madison Settlement Services - Shippensburg, LLC and/or Madison's legal counsel, either of which had conducted a title search on behalf of the Plaintiffs and had available the title abstract from said search for review prior to closing. 66. Any losses of Plaintiffs were caused by the negligence of Madison Settlement Services- Shippensburg, LLC and/or their legal counsel who represented the Plaintiffs at closing and who were responsible to the Plaintiffs for reviewing the title abstract on this property and rendering their opinion to Plaintiffs as to whether they should proceed to settlement. WHEREFORE, the Defendants, Paul D. Smith, III and Anna K. Smith, respectfully request that this Honorable Court enter Judgment in favor of the Defendants, Paul D. Smith, III and Anna K. Smith, and against all others. CROSS-CLAIM PURSUANT TO Pa. P.C.P. 2252_U PAUL D. SMITH III AND ANNA K. SMITH VS. MADISON SETTLEMENT SERVICES - SHIPPENSBURG, LLC 67. The Defendants, Paul D. Smith, III and Anna K. Smith, incorporate by reference the allegations and causes of action pleaded by Plaintiffs in the original Complaint against the Defendant, Madison Settlement Services - Shippensburg, LLC as though they were set forth in full. 68. The Defendant, Madison Settlement Services - Shippensburg, LLC, is alone liable to Plaintiffs or liable over to Paul D. Smith, III and Anna K. Smith or jointly or severally liable to Plaintiffs. WHEREFORE, the Defendants, Paul D. Smith, III and Anna K. Smith, respectfully request that this Honorable Court enter Judgment in their favor and against all others. RESPECTFULLY SUBMITTED, Anthony L. D uca, Esquire Attorney ID No. 18067 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 Attorney for Paul D. Smith, III and Anna K. Smith VERIFICATION We hereby verify that the facts and information set forth in the foregoing Answer are true and correct to the best of our knowledge, information, and belief. We understand that any false statements contained herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 0 (0 Az _s1' V w r ul D. Smith, III (2?, ?e -Jn? Anna K. Smith 10/24/2005 03:55 5329327 GS PAGE 01 BEGINNING at the corner of lands now or formerly of Walter Gantz and Earl E. Hoffrrman and Donna F. Hoffman; thence along lands now or formerly of Earl E. Hoffman and Donna F. Hoffman, South 11 degrees 30 minutes 00 seconds West, 595.31 feet to an existing 1" inch pipe at the corner of lands now or formerly of Earl E, Hoffman and Donna F. Hoffman; thence along lands now or formerly of Earl E. Hoffman and Donna F. Hoffman, South 83 degrees 09 minutes 28 seconds West, 329.00 feet to a 1" existing pipe at comer of lands now or formerly of Earl E. Hoffman and Donna F. Hoffman and lands now or formerly of Darrell D. Goodhart and James H. Goodhart; thence along lands now or formerly of Darrel D. Goodhart and James H. Goodhart, North 13 degrees 51 minutes 08 seconds East 644.22 feet to a '/a iron pin at corner of land now or formerly of Darrell D. Goodhart and James H. Goodhart and lands now or formerly of Walter Gantz; thence along lands now or formerly of Walter Gantt, South 89 degrees 26 minutes 21 seconds East, 291.72 feet to a '/z iron pin in stone pile at the point and place of BEGINNING. CONTAINING 184,570.880 square feet or 4.237 acres per survey dated November 19, 2001 by Shelly & Witter and intended to be recorded herewith. -,fo: av,-atj. SnIa ale ,d, pf,r? 5? q,3 C? 0 - 532- Smiths Exhibit "A" The undersigned does hereby certify that a true and correct copy of the foregoing document was mailed this date by depositing same in the possession of the United States Postal Service by first class mail, postage prepaid, addressed to the following; Duane P. Stone, Esquire P.O. Box 696 Dillsburg, PA. 17019 James L. Goldsmith, Esquire CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA. 17110 Eugene J. Maginnis, Jr. Esquire DUGAN, BRINKMANN, MAGE,4MS AND PACE 1880 John F. Kennedy Blvd, 14`h Floor Philadelphia, PA 19103 ???%9?o??YF(p _ Dated( (( Anthony Luca, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 c-g ?-?? t._. {.- ? . = <.. , ? ? c-z --i " ? J ° --, ...., rri?._, a ? c:; : _ _ -' `J . _. t C.?..1 DUGAN, BRINKMANN, MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR., ESQUIRE ATTORNEY ID # 23692 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 Counsel for Defendant, Madison Settlement Services- Shippensburg, LLC GARY T. KRAJNIK and ERIKA S. KRAJNIK vs. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC, BARBARA WOODS and EXIT REALTY GROUP, INC. NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED RESPONSE OF DEFENDANT MADISON SETTLEMENT SERVICES-SHIPPENSBURG LLC TO NEW MATTER CROSSCLAIM OF CO-DEFENDANTS. PAUL D. SMITH, III AND ANNA K. SMITH Madison Settlement Services-Shippensburg, LLC, by its attorneys, Dugan Brinkmann Maginnis and Pace responds to the New Matter Crossclaim filed against it as follows: 67. Denied. Paragraph 67 constitutes a conclusion of law to which no responsive pleading is required. By way of further answer, answering defendants incorporate any and all pleadings which they have filed or will file in this matter. 68. Denied. Paragraph 68 constitutes a conclusion of law to which no responsive pleading is required. Any negligence or liability-producing conduct on the part of this answering defendant is specifically denied. WHEREFORE, answering defendants request this Honorable Court to dismiss the New Matter Crossclaim filed against them and grant such other and further relief which may be appropriate. DUGAN BRINKMANN MAGINNIS AND PACE Zx? BY: EUGENE J. MAGINNIS, JR. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VERIFICATION Eugene J. Maginnis, Jr., Esquire, Counsel for Defendant, Madison Settlement Services- Shippensburg, LLC, avers that the allegations contained in the foregoing Answer to Crossclaim are true and correct to the best of his knowledge, information and belief; and that the statements in said pleading are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. Eugene J. Maginnis, Jr. Verified this 12th day of October, 2006. CERTIFICATION I, Eugene J. Maginnis, Jr., attorney for Defendant, Madison Settlement Services- Shippensburg LLC, hereby certify that I am duly authorized to make this certification; that on the 21st day of October, 2006, I did cause a true and correct copy of my Answer to Crossclaim to be mailed by United States regular mail to counsel and unrepresented parties addressed as follows: James I. Goldsmith, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Jonathan M. Crist, Esquire Duane P. Stone, Esquire P.O. Box 696 Dillsburg, PA 17019 Anthony L. DeLuca, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 DUGAN, BRINKMANN, MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR. C> ? rn . ???? ? ? ? _?<. ? r: ;:. tp ? ?T "? -'r'a ? -4, Cs 3 To the within Parties . You are hereby notified to plead to the enclosed New Matter within twenty (20) days of service hereof or a default judgment may be entered against you. DUGAN, BRINKMANN, MAGINNIS AND PACE BY: EUGENE J. MAGINNIS, JR., ESQUIRE ATTORNEY ID # 23692 1880 John F. Kennedy Boulevard, 14th Floor Philadelphia, PA 19103 (215) 563-3500 GARY T. KRANJIK and ERIKA S. KRANJIK vs. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES- SHIPPENSBURG, LLC, BARBARA WOODS and EXIT REALTY GROUP, INC. Counsel for Defendant, Madison Settlement Services- Shippensburg, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-3176 CIVIL TERM CIVIL ACTION LAW JURY TRIAL DEMANDED ANSWER OF DEFENDANT MADISON SETTLEMENT SERVICES-SHIPPENSBURG LLC WITH NEW MATTER AND NEW MATTER CROSSCLAIM AS TO ALL CO- DEFENDANTS 1. Admitted. Admitted. Denied. Madison Settlement Services-Shippensburg, LLC no longer exists. 4. Admitted. Denied as stated. The Agreement of Sale, being in writing, speaks for itself. 6. Admitted. 7. Denied as stated. Answering defendant believes at one time there was such a parcel of land in Cumberland County. Denied as stated. The Cumberland County records, being in writing, speaks for itself. 9. Denied as stated. This paragraph refers to parties other than answering defendant and no response is therefore required as to this answering defendant. 10. Denied as stated. This paragraph refers to parties other than answering defendant and no response is therefore required. 11. Denied as stated. This paragraph refers to parties other than answering defendant and no response is therefore required. 12. Denied as stated. This paragraph refers to parties other than answering defendant and no response is therefore required. 13. Denied as stated. Madison was retained to conduct the closing with respect to the Agreement of Sale. 14. Denied. Madison only conducted a search with respect to the property set forth in the Agreement of Sale. 15. Admitted. 16. Denied as stated. The Deed, being in writing, speaks for itself. 17. Denied as stated. The Deed, being in writing, speaks for itself. 18. Denied as stated. The Deed, being in writing, speaks for itself. 19. Denied as stated. Answering defendant believes that the Tendered Deed recited parcel 31-13-0112-014B. 20. Denied as stated. The Deed Book, being in writing, speaks for itself. 21. Admitted. 22.-23. Denied as stated. This paragraph is denied as stated with respect to statements made by SHOOP to the Kranjiks. To the contrary, SHOOP specifically advised the Kranjiks there was no express recorded right of way. Accordingly, that fact could affect or impair the Kranjiks ability to gain vehicular or other access to the property. The Kranjiks chose to go forward with the transaction despite the specific information provided to them by SHOOP regarding this issue. 24. Denied as stated. SHOOP specifically advised the Kranjiks of the situation with respect to the right of way issue and the Kranjiks chose to go forward with the transaction. The -2- Kranjiks made their own decision to go forward with the transaction in spite of their knowledge of the issue relating to the right of way. 25.-29. Denied. After reasonable investigation, answering defendant is without sufficient knowledge or information to form a belief as to the truth of the averments in these paragraphs. Accordingly, same are denied and strict proof thereof is demanded. 30. Admitted. 31.-32. Admitted. 33.-36. Denied. After reasonable investigation, answering defendant is without sufficient knowledge or information to form a belief as to the truth of the averments of these paragraphs. Accordingly, same are denied and strict proof thereof is demanded at the time of trial. COUNT I KRANJIKS V. SMITHS - BREACH OF CONTRACT (WARRANTY 37. Answering defendant incorporates by reference as though fully set forth herein its answers to paragraphs 1 through 36 above. 38.-39. Denied as stated. These paragraphs relate to parties other than answering defendant and no response is therefore required. WHEREFORE, answering defendant requests this Honorable Court to dismiss the Complaint filed against them and grant such other and further relief as may be just and appropriate. COUNT II KRANJIKS V. SMITHS - NEGLIGENT MISREPRESENTATION 40. Answering defendant incorporates by reference as though fully set forth herein its answers to paragraphs 1 through 39 above. 41.-42. Denied as stated. These paragraphs refer to parties other than answering defendant and no response is therefore required. -3- WHEREFORE, answering defendant requests this Honorable Court to dismiss the Complaint filed against them and grant such other and further relief as may be just and appropriate. COUNT III KRANJIKS V. MADISON SETTLEMENT SERVICES - SHIPPENSBURG PROFESSIONAL NEGLIGENCE 43. Answering defendant incorporates by reference as though fully set forth herein its answers to paragraphs 1 through 36 above. 44. Denied. Paragraph 44 and all subparagraphs thereof constitute conclusions of law to which no responsive pleading is required. By way of further answer, any negligence on the part of the answering defendant as set forth in all of the subparagraphs is specifically denied. To the contrary, the actions of the answering defendant were at all times reasonable and proper. WHEREFORE, answering defendant requests this Honorable Court to dismiss the Complaint filed against them and grant such other and further relief as may be just and appropriate. COUNT IV KRANJIKS V. WOODS and EXIT - NEGLIGENT MISREPRESENTATION 45. Answering defendant incorporates by reference as though fully set forth herein its answers to paragraphs 1 through 44 above. 46.-47. Denied. These paragraphs refer to parties other than answering defendant and no response is therefore required. WHEREFORE, answering defendant requests this Honorable Court to dismiss the Complaint filed against them and grant such other and further relief as may be just and appropriate. NEW MATTER The Agreement of Sale between the Plaintiffs and the Defendant, Madison Settlement Services-Shippensburg, LLC, stated that the Plaintiffs had the right to conduct a survey of the property at issue which they declined to do. -4- 2. The Plaintiffs were advised to consult with an attorney prior to signing the Agreement of Sale. 3. The Agreement of Sale does not make representations with respect to ingress or egress to the property nor to the metes and bounds of the property. 4. The Plaintiffs had the opportunity to obtain title insurance on the property in question but failed to do so. 5. The Plaintiffs, pursuant to Paragraph 10 ( C ) of the Agreement of Sale, had the right to make the purchase of the property contingent upon an inspection of the property which was not done. 6. The cause of action by Plaintiffs may be barred in whole or in part by the applicable statute of limitations. 7. The cause of action by Plaintiffs may be barred in whole or in part by the doctrine of release. 8. The cause of action by Plaintiffs may be barred in whole or in part by waiver and/or estoppel. 9. The cause of action by Plaintiffs may be barred in whole or in part by the Statute of Frauds. 10. The cause of action by Plaintiffs may be barred in whole or in part by the Parol Evidence Rule. 11. The cause of action by Plaintiffs may be barred in whole or in part by the failure to state an action upon which relief may be granted. 12. The cause of action by Plaintiffs may be barred in whole or in part by contributory negligence. 13. The cause of action by Plaintiffs may be barred in whole or in part by the doctrine of economic loss. -5- 14. The cause of action by Plaintiffs may be barred due to their failure to mitigate damages. 15. The Complaint fails to state a cause of action upon which relief may be granted. 16. Plaintiffs' alleged cause of action was caused by parties other than answering defendants and over whom answering defendant had no control. 17. If plaintiffs have sustained damages as alleged, said allegations being denied, then answering defendant asserts that plaintiffs' assumed the risk of such damages and thus plaintiffs' claims are entirely barred. 18.. If plaintiffs have sustained damages as alleged, said allegations being denied, then plaintiffs' damages were caused by plaintiffs' failure to exercise reasonable care under the circumstances and therefore plaintiffs' claims are entirely barred and/or reduced by plaintiffs' own contributory and/or comparative negligence. 19. If plaintiffs have sustained damages as alleged, said allegations being denied, then plaintiffs' damages were caused by the direct and proximate result of the intentional, negligent or other wrongful actions, omissions of entities or individuals other than answering defendants over whom answering defendants had no control and for whom answering defendant is not responsible. 20. Answering defendant, at all times relevant to the matters alleged in plaintiffs' complaint, conducted themselves in a proper, reasonable, lawful and prudent manner regarding any duties it had with respect to the sale of the property, including disclosure to the plaintiffs of all known material conditions of the property. 21. Answering defendant made no misrepresentations to plaintiffs and therefore breached no duty with regard to any obligations or duties associated with the sale of the property. -6- 22. Plaintiffs' claims are barred and/or limited by the doctrines of waiver, equitable estoppel, promissory estoppel, release, unclean hands, merger of the sale into the deed, accord and satisfaction, set-off, laches, res judicata and/or collateral estoppel. 23. Plaintiffs' claims are barred and/or reduced by any and all releases executed by plaintiffs', including any release provisions contained in the Agreement of Sale or related addenda. More particularly, the Agreement of Sale states in pertinent part in paragraph 24: REPRESENTATIONS (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers, their licensees, employees, officers or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. It is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement will not be altered, amended, changed, or modified except in writing executed by the parties. (B) It is understood that Buyer has inspected the Property before signing this Agreement (including fixtures and any personal property specifically scheduled herein), or has waived their right to do so, and has agreed to purchase the Property in its present condition unless otherwise stated in this Agreement. Buyer acknowledges that the Brokers, their licensees, employees, officers or partners have not made an independent examination or determination of the structural soundness of the Property, the age or condition of the components, environmental conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor have they made a mechanical inspection of any of the systems contained therein. ( C ) Broker(s) may perform services to assist unrepresented parties in complying with the terms of this Agreement. -7- (D) The headings, captions, and line numbers in this Agreement are meant only to make it easier to find the paragraphs. 24. Plaintiffs' claims are precluded by the doctrine of merger through the acceptance of a deed at the time of closing. 25. Plaintiffs' claims are barred and/or limited by the parol evidence rule and the integration clause of the subject Agreement of Sale which states in paragraph 24, in pertinent part: (A) Buyer understands that any representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers, their licensees, employees, officers or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. It is further understood that this Agreement contains the whole agreement between Seller and Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this Agreement will not be altered, amended, changed, or modified except in writing executed by the parties. 26. Plaintiffs' claims are barred and/or limited by the Release language in Paragraph 23 of the Agreement of Sale. 27. The plaintiffs were fully and properly advised regarding the condition of the property and they still chose to go forward with the sale of the property. Their claim is therefore barred. 28. The complaint includes claims for economic loss and economic loss is not recoverable in tort. 29. The gist of the complaint is one sounding in contract. Pursuant to the gist of the action doctrine, plaintiffs' claims for negligence are precluded. 30. The Agreement of Sale negotiated by and between plaintiffs and defendants Smiths provided plaintiffs with the right to conduct a survey or surveys of the subject property, which they declined to do. -8- 31. On the reverse page 2 of the Agreement of Sale, the buyers were provided with a notice advising to have a survey. 32. In Paragraph 10 ( C ) of the Agreement of Sale, plaintiffs were provided with a right to make their obligations to purchase subject to the outcome of an inspection of the property, that could have included the property boundary, square footage verification and delineation, which they elected not to do. WHEREFORE, answering defendant respectfully requests this Honorable Court to dismiss the Complaint filed against it and grant such other and further relief as may be just and appropriate. CROSS-CLAIM AGAINST CO-DEFENDANTS To the extent that plaintiffs sustained any damages as alleged, their injuries and/or damages were caused solely by the negligent acts or omissions to act by the co-defendants and any liability on part of the answering defendant is expressly denied. Answering defendant alleges that the co-defendants are liable to the plaintiffs, jointly and severally liable with the answering defendant and/or liable over to the answering defendant on the principles of contribution and/or indemnity, for any and all sums awarded to plaintiffs and all attorneys fees and costs and expenses in the defense of this action. WHEREFORE, the answering defendant demands judgment in its favor and against plaintiffs and/or the co-defendants and request this Honorable Court to grant such other and further relief as may be just and appropriate. BY: DUGAN BRINKMANN MAGINNIS AND PACE Eugene J. Maginnis, Jr., Esquire Attorney for Defendant, Madison Settlement Services-Shippensburg -9- CERTIFICATION I, Eugene J. Maginnis, Jr., attorney for Defendant, Madison Settlement Services- Shippensburg LLC, hereby certify that I am duly authorized to make this certification; that on the 14?- day of November, 2006 did cause a true and correct copy of my Answer with New Matter and New Matter Crossclaim to be mailed by United States regular mail to counsel addressed as follows: James I. Goldsmith, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Jonathan M. Crist, Esquire Duane P. Stone, Esquire P.O. Box 696 Dillsburg, PA 17019 Anthony L. DeLuca, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 DUGAN, BRINKMANN, MAGINNIS AND PACE 4k?? BY: EUGENE J. MAGINNIS, JR. -10- 11 12 39 a rn 11-02-2006 2 12 ' . y •\ 7172644537 Madison Settlement Ser o' f ;;•? "J • a VERIFICATION T S h 00 she avers that the Dawn Sly is a representative o Madison Settlement Services and of Defendant Madison Settlement Services- allegations contained in the foregoing Answer With New Matter and New NZatter Crossclai><n As To All Co-Defendants Shippensburg, LLC is flue knowledge, information and belief; and that the statements in said'?° and correct to the best of her C.S. §4904 relating to unworn falsifications to ¢' he penalties of IS Pa. r ' Answer are made subject to t p f? authorities. h' Sh=p Dawn Shoo Verified this ri;w ?y 2006 day of I'• f e yi `' r * TOTAL PAGE. 12 ** ? ?:, ?= ?:_? -? ?? ?? ,f_r -,-, .? _.? ?e a? _.- ..c 1 - % CALDWELL & KEARNS 3631 North Front Street Harrisburg, Pennsylvania 17110-1533 717-232-7661 Fax: 717-232-2766 GARY T. KRANJIK and : IN THE COURT OF COMMON PLEAS ERIKA S. KRANJIK : CUMBERLAND COUNTY.. PENNSYLVANIA VS. : NO.: 2006-3176 CIVIL TERM PAUL D. SMITH III and ANNA fL SMITH, MADISON SETTLEMENT CIVIL ACTION LAW SERVICES-SHIPPENSBURG, LLC, JURY TRIAL DEMANDED BARBARA WOODS AND EXIT REALTY GROUP, INC. ANSWER OF BARBARA WOODS AND EXIT REALTY GROUP, INC. TO CROSSCL:AIM OF MADISON SETTLEMENT SERVICES-SHIPPENSBURG, L LC 1. Denied. 'T'he averments of Paragraph 1 of Madison's cross-claim is denied as a conclusion of law w which no answer may be made. Denied. 'The averments of Paragraph 2 of Madison's cross-claim is denied as a conclusion of law to which no answer may be made. CALDWEIL & KEARNS • By: ;!jam . L.. Goldsmith -squ. e orney ID No. 0 051 CAL.DWELL & K, S 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Dated: ?l lJ.? 0- -'. CERTIFICATE OF SERVICE AND NOW, this j?4 day of ???1•t , 2006, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Anthony L. DeLuca, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 Jonathan Crist, Esquire Law Offices of Duane P. Stone P.Q. Box 696 Dillsburg, PA 17019 Eugene J. Maginnis, Jr., Esquire Dugan Brinkmann Maginnis and Pace 1880 John F. Kennedy Boulevard, 14th Floor Philadelptiia, PA 19103 CALDWELL & KEARNS By -- 06328-002/108867 C'? -`' - -- __ ? c c:s G y i_ .) 1-1 ..? -r- _ ? G? ;? -- ?._ i C:::; .? Duane P. Stone, Esquire ATTY ID 85715 Jason B. Duncan, Esquire ATTY ID 87946 Law Offices of Duane P. Stone PO Box 696 Dillsburg, PA 17019 Ph (717) 432-2089 Fx (717) 432-0158 GARY T. KRAJNIK and ERICKA S. KRAJNIK, PENNSYLVANIA Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, VS. NO. 2006-3176 CIVIL TERM PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC., CIVIL ACTION LAW Defendants : JURY TRIAL DEMANDED ANSWER TO NEW MATTER AND CROSS-CLAIMS OF DEFENDANT MADISON SETTLEMENT SERVICES. LLC AND NOW come the Plaintiffs, GARY T. KRAJNIK and ERICKA S. KRAJNIK who file this Answer to New Matter and Cross-Claim of Defendant Madison Settlement Services, LLC, of which the following is a response: 1. Admitted. In way of further explanation, Plaintiffs were given the opportunity to have a survey conducted, however, they were given copies of two previous surveys that were reported to be of the property, one of which was determined later to be of the wrong property. 2. Admitted. In way of further explanation, it was the understanding of the Plaintiffs that Defendant Madison Settlement Services were representing the Plaintiffs and had an attorney consulting Defendant Madison Settlement Services. 3. Denied as stated. The Agreement does not make representation as to ingress or egress, however, the deed does describe the metes and bounds of the property. By way of further answer, the metes and bounds of the property described in the deed describes the property adjacent to the property that the Plaintiffs believed they were purchasing. 4. Admitted. 5. Denied as stated. Plaintiffs specifically admit that as part of the Agreement of Sale they had the right to make the purchase of the property contingent upon an inspection of the property, and Plaintiffs conducted an inspection prior to executing the Agreement. By way of further answer, prior to Closing the Plaintiffs conducted an inspection of the subject property with Defendant, Paul Smith. During this inspection Defendant Paul Smith assured Plaintiffs that there was vehicular access available to the property and that such access would continue to be available without restrictions or problems. During this inspection Defendant Paul Smith also showed the Plaintiffs the boundaries of the subject property. 6. Denied. Paragraph 6 constitutes a conclusion of law to which no responsive pleading is required. 7. Denied. Paragraph 7 constitutes a conclusion of law to which no responsive pleading is required. 8. Denied. Paragraph 8 constitutes a conclusion of law to which no responsive pleading is required. 9. Denied. Paragraph 9 constitutes a conclusion of law to which no responsive pleading is required. 10. Denied. Paragraph 10 constitutes a conclusion of law to which no responsive pleading is required. 11. Denied. Paragraph 11 constitutes a conclusion of law to which no responsive pleading is required. 12. Denied. Paragraph 12 constitutes a conclusion of law to which no responsive pleading is required. 13. Denied. Paragraph 13 constitutes a conclusion of law to which no responsive pleading is required. 2 14. Denied. Paragraph 14 constitutes a conclusion of law to which no responsive pleading is required. 15. Denied. Paragraph 15 constitutes a conclusion of law to which no responsive pleading is required. 16. Denied. Paragraph 16 constitutes a conclusion of law to which no responsive pleading is required. 17. Denied. Paragraph 17 constitutes a conclusion of law to which no responsive pleading is required. 18. Denied. Paragraph 18 constitutes a conclusion of law to which no responsive pleading is required. By way of further explanation, any negligence on the part of the Plaintiffs is specifically denied. To the contrary, the actions of the Plaintiffs were at all times reasonable and proper under the circumstances. 19. Denied. Paragraph 19 constitutes a conclusion of law to which no responsive pleading is required. 20. Denied. Paragraph 20 constitutes a conclusion of law to which no responsive pleading is required. 21. Denied. Paragraph 21 constitutes a conclusion of law to which no responsive pleading is required. 22. Denied. Paragraph 22 constitutes a conclusion of law to which no responsive pleading is required. 23. Denied. Paragraph 23 constitutes a conclusion of law to which no responsive pleading is required. The Agreement, being in writing, speaks for itself. 24. Denied. Paragraph 24 constitutes a conclusion of law to which no responsive pleading is required. 25. Denied. Paragraph 25 constitutes a conclusion of law to which no responsive pleading is required. 26. Denied. Paragraph 26 constitutes a conclusion of law to which no responsive pleading is required. 3 27. Denied. Plaintiffs specifically deny that Defendant SHOOP fully and properly advised Plaintiffs regarding the condition of the property therefore their claim cannot be barred based on this theory. 28. Denied as stated. Specifically, while the complaint includes claims for economic loss, the complaint sets forth different theories for recovery other than tort. To the extent that Defendant avers that the Plaintiffs recovery for the economic loss is not recoverable under any theory this is denied as it constitutes a conclusion of law to which no responsive pleading is required. 29. Denied. Paragraph 29 constitutes a conclusion of law to which no responsive pleading is required. 30. See answer to averment of Paragraph 1 above as Paragraph 30 makes the same averment as Paragraph 1. 31. Admitted. 32. See answer to Paragraph 5 above as Paragraph 32 makes the same averment as Paragraph 5. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendant's prayer for relief and enter judgment in favor of the Plaintiffs and against all others. LAW OFFICE OF DUANE P. STONE, P.C. By: Duane P. Stone, Esq. Atty ID No 85715 Jason B. Duncan, Esq. Atty ID No 87946 8 N. Baltimore Street Dillsburg, PA 17109 717-432-2089 4 CALDWELL & KEARNS 3631 North Front Street Harrisburg, Pennsylvania 17110-15 717-232-7661 Fax: 717-232-2766 GARY T. KRANJIK and ERIKA S. KRANJIK VS. PAUL D. SMITH III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC, BARBARA WOODS AND EXIT REALTY GROUP, INC. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 2006-3176 CIVIL TERM : CIVIL ACTION LAW : JURY TRIAL DEMANDED ANSWER OF BARBARA WOODS AND EXIT REALTY GROUP, INC. TO EXPERT INTERROGATORIES OF DEFENDANT, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC ADDRESSED TO ALL PARTIES 1. As of the date of this Answer, Defendants Barbara Woods and Exit Realty Group, Inc. have not determined whether will call any expert witnesses at the trial of this matter. CALDWELL & KEARNS Dated: Ja es L. G ith, Esquire orney I .07051 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 CERTIFICATE OF SERVICE AND NOW, this 'o a7"#day of ? , 2006, 1 hereby certify that have served a copy of the Answer of Barbara Woods and Exit Realty Group, Inc. to Expert Interrogatories of Defendant, Madison Settlement Services-Shippensburg, LLC Addressed to All Parties on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg Pennsylvania, postage prepaid, addressed to: Antho y L. DeLuca, Esquire 13 Front Street P.O. Box 358 Boilin Springs, PA 17007 Jon than Crist, Esquire Law :sburg, ces of Duane P. Stone P.O. Box 696 PA 17019 Eugene J. Maginnis, Jr., Esquire Dugan Brij kmann Maginnis and Pace 1880 John F. ennedy Boulevard, 14th Floor Phil delphia, PA 19103 DWELL & KEARNS B 06328-002/109536 w p t? r w rte' c r ° cr? CD Go, fi Kral ni? and Er1d& S. koxir)1 vs P-a- ,N Snn 14-x'1 1M P_+, CJ - Case No. 2ao(p - 31 7u Statement of Intention to Proceed To the Court: G r- , n C ne+Q, Y_v1-1,11L, Q? a i(tbifA intends to proceed with the above captioned matter. Print Name 1.10.x12 p 6,r Sign Name _ Date: (0 I C-0 .1 a9 Attorney for _-)1Cu n+. fS Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (dx3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. RLEU--0F'r-ICS OF THE P'?OTPI,,OTARY 2009 OCT -7 PM 3: 48 GARY T. KRAJNIK and ERIKA S. KRAJNIK Plaintiffs VS. PAUL D. SMITH, III and ANNA K. SMITH, MADISON SETTLEMENT SERVICES-SHIPPENSBURG, LLC., BARBARA WOODS and EXIT REALTY GROUP, INC. Defendants Case No. 06-3176 Statement of Intention to Proceed To the Court: Paul D. Smith, III and Anna K. Smith intend to proceed with the above captioned matter. Print Name Anthony L. DeLuca Sign Name 2-21Z &" L 1 Date: ee 9 Attorney for Paul D. Smith, III and Anna K. Smith ICE CF W OTHE CT 26 AM 8= 51