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06-6422
COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. c& ----Lqzz".. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Dis- trict Justice on the date and in the case mentioned below. NAME OF APPELLANT AG. DIST. NO. OR NAME OF D.J. 09-1-01 Gemcraft Homes, Inc. MDist. Judge Clement ADDRESS OF APPELLANT CITY STATE ZIP CODE 2205-A Commerce Road Forest Hills Maryland 21050 DATE OF JUDGMENT IN THE CASE OF (PLAINTIFF) HDEFENDANT Gemcraft omes, fnc. and 10/24/06 Jeffrey A Barbara Hawkins vs.Liberty Excavators Inc. CLAIM NO. SIGNATURE OF APPELLANT OR HIS TT RNEY OR AGENT CV YEAR CV-0000498-06 n n . LT YEAR This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 10088. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. Signature o ro ono ary or epu If appellant was Claimant (see PA R.C.P.J.P. No. 1001(6)) in action before district Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Jeffrey and Barbara Hawkins appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. within twenty (20) days after service of rule o ffer e o j g of non pros. r of a r his attorney or agent JoAnne E. a Esquire RULE: To Jeffrey and Barbara Hawking-,appellee(s) I.D.155453 Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: ) Year Signature othonot or Deputy White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink - Appellee Copy Gold - D. J. Copy Proth. - 76 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) , year by personal service []by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name on year _ ? by personal service [:] by (certified) (registered) mail, sender's receipt attached hereto. and further that I served the Rule to File a Complaint accompanying the, above Notice of Appeal upon.the appellee(s) to whom the Rule was addressed on , year , [j by personal service [:]by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , YEAR Signature of official before whom affidavit was made ti Title of official My commission expires on , year Signature of Afflant o fl -n ril r c ' l t2 - G r_ .o COMMONWEALTH OF PENNSYLVANIA GUNTY OF: C:UAIgzRLJ W Mag. Di*NO.: 09-1-01 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address: 400 BRIDGE ST OLDS TOWNS COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: (717 ) 774-5989 17070 ATTORNEY DEF PRIVATE : NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS FEMNXINS, JEFFREY/BARBARA 7 1450 MAIN STREET LISBURN 1MECHANICSBURG, PA 17055 J VS. DEFENDANT: NAME and ADDRESS rGEMCRAFT HOMES INC, ET AL. 2205 COMMERCE ROAD APT/STE A JEFF RHODES FIELD SUPVR LFOREST HILL, MD 21050 J DONALD R. DORER 214 SENATE AVE Docket No.: CV-0000498-06 214 SENATE AVE STE 503 Date Filed: 9/07/06 CAMP HILL, PA 17011-2336 THIS IS TO NOTIFY YOU THAT: LIBERTY EXCAVATORS I, NC DEF 003 Judgment: DISMISSED W/O PREJUDICE (Date of Judgment) F] Judgment was entered for: (Name) ? Judgment was entered against: (Name) in the amount of $ 1-1 Defendants are jointly and severally liable. F] Damages will be assessed on Date & Time ® This case dismissed without prejudice. ? Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ .00 Judgment Costs $ .00 Interest on Judgment $ •00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. OCT 2 4 2006 ' Date Magisterial District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date My commission expires first Monday of January, 2008 , Magisterial District Judge SEAL AOPC 315-06 DATE PRINTED: 10/25/06 1:00:00 PM . ' .XOMMONWEALTH OF PENNSYLVANIA QOUNTY OF CUMBERLAND Mag Dlsf 09-1-01 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS FIMMINS, JEFFREY/BARBARA 1450 MAIM STREET LISBURN PCHANICSBURG, PA 17055 J VS. DEFENDANT: NAME and ADDRESS rGEMCRAFT HOMES INC, ET AL. 2205 COMMERCE ROAD APT/STE A JEFF RHODES FIELD SUPVR LFOREST HILL, MD 21050 J Docket No.: CV-0000498-06 Date Filed: 9/07/06 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address: 400 BRIDGE ST OLDS TOME COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: 717 ) 774-5989 17070 ATTORNEY DEF PRIVATE : DONALD R. RORER 214 SENATE AVE 214 SENATE AVE STE 503 CAMP HILL, PA 17011-2336 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF Fx1 Judgment was entered for: (Name) HAMEINS, JEFFREY/BARBARA ® Judgment was entered against: (Name) GEMCRAFT HOMES INC in the amount of $ 8,182.0 1-1 Defendants are jointly and severally liable. ? Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 8,000.00 Judgment Costs $ 182.00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 8,182.001 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. OCT 2 4 2006 Date I certify that this is a true and correct copy of the record of the p (Date of Judgment) 10/24/06 Date My commission expires first Monday of January, 2008 Magisterial District Judge ings containing the judgment. , Magisterial District Judge SEAL AOPC 315-06 DATE PRINTED: 10/25/06 12:59:00 PM PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ;ss AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas No. 06-6422 Civil Term , upon the District Justice designated therein on (date of service)November 16, year 2006 [:] by personal service Hby (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name Jeffrey and Barbara Hawkins , on November 16, , year _2006 , [] by personal service jaby (certified) (registered) mail, sender's receipt attached hereto. R and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on November 16, year 2006 by personal service !Mby (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS ? 1h DAY OF 1\104 YEAR 16(c. SbrWwe Aortkiaf before whom affidavit was made Tfa of of iiciel U My commission expires on ct. year OF PENINSYU- JoAiWe E. Rinzel, EsquirdonatureorAtBant #55453 Notarial Seat Elizabeth M. MacGee, Notary Public East Pennsboro Twp, Cumberland County My Commission Expires Feb. 5, 2008 -0 Lu z? - CJ r C) 1 C rn Member, Pennsylvania Association of Notaries COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS CUMBE:ZI A ID JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT I I COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Dis- trict Justice on the date and in the case mentioned below. NAME OF APPELLANT ?;G. DIST. NO.OR NAME OF D.J. 09-1-01 Gemcraft mss, Inc. . Dist. Judge Clemnt ADDRESS OF APPELLANT CITY STATE ZIP CODE 2205-A Cowreres Boad Forest Bills land 21050 DATE OF JUDGMENT IN THE CASE OF (PLAINTIFF) DEFENDAN meraft is, Luc. and 10/24/06 Jeffrey A Barbara Hawkins G vs. CLAIM NO. SIGNATURE OF APPELLANT OR HIS ATTORNEY OR AGENT CV YEAR CV-0000498-06 LT YEAR This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 1008B. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. If appellant was Claimant (see PA R.C.P.J.P. No. 1001(6)) in act' &e?? dESct Justice, he MUST FILE A CO Win twenty (20) days after filing his NOTICE of APPEAL. PRAECIP910 ENTER RULE TO FILE O MPLAINT AND "ETQNJLE (This sectiorrof form to be used ONLY vyhgn ellant rvyyas dND 0EFENDAN e.Q Pt R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of app iidtiFll ?iTrtoBe rik elAe. PRAECIPE: To P ?" + . t3L u i sr1r.=_t=t rothonotary ' Enter rule upon Jeffrey and Barbara Hawkins , appellee(s), to file a complaint in this a0bal Name of ami ) z "'S`L z.i3? (Common Pleas No. within twenty (20) days after service of rule offer e o j gpm#,,of non pros. his attorney or agent JoAnne E. e , 844juire RUL& To appellee(s) I. D. #55453 (1) You are notifiedthat a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the Gated service of this rule upon you by personal service or by certified or registered mail. (2) If you don ot ffl6 a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU Ui?i 41PRAECIPE. (3) The 0-le of service of this rule if service was by mail is the date of the mailing. Ilk Date: Year Signat* of. not Deputy White Prothonotary Copy . Green - Court File Copy Q Yellow - Appelant's Copy Pink - Appellee Copy Gold - D. J. Copy Proth. - 76 2E2T •EV-0 = 000 0T02 E001- 0 Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can retum the card to you. ¦ Attach this card to the hack of the mailpieoe, or on the front if space permits. C 1 "Ulcle Addressed to: 0 i &W 13 A. ? Agent D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No s?e1!t la ? d?? ?e ? 12pp6 Qewy? LP Bn s Type Mail 13 Express V)&t -- a!M/Yuf Su fk -5 O-Registered 0 Return Receipt for Merchandise ?,,??pp ' ? Insured Mali ? C.O.D. N Ci O(?(Alvhu,`C. Jund Pk ' q O 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article W-3 1010 ate- o? Baas Ps Form 3811, Febnwy 2o04 Domestic Return Receipt 102595-02-M-1540 522'I EQZO 0000 0`? ¦ Complete Items 1, 2, and 3. Also complete item 4 H Restricted Delivery Is desired. ¦ PrMt your name and address on the reverse so that we can retum the card to you. ¦ Attach this card to the back of the maliplece, or oritthe front if space permits. it Article Addressed to: (U-B-06139 DPI, awwq f?LWKih- IL 50 616o?alft / Lisburn M6rln iZS ba,ry., 2. Article Number Marrsfer from sw-Awmw PS Form 38111 February 2004 13 by ( Pdn(ed Narr) , 1C. Date of Delivery D. Is • f renttrom Rem 1? ? Yes deli rasa below: ? NV G ? -OOH / /hV UN01111" mail s. ? Q jj?Pt for Merchandise 4. Reacted Delivery? (Extra Fee) ? Yes "7003- 1016 - Q= - 0 53J1aas 102595-02-M-1540 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants RY TRIAL DEMANDED OF JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Proof of Service of Notice of Appeal and Rule to File Complaint to be served by regular first class mail upon: Jeffrey and Barbara Hawkins 1450 Main Street, Lisburn Mechanicsburg, PA 17055 Date: November 28, 2006 ?ui JoAnne iel-'E Attorney Defendant, Gemcraft Homes, Inc. David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 d C tzsimonsotndwo.corn (717) 243-3341 JEFFREY & BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. : NO. 06-6422 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., JURY TRIAL DEMANDED Defendants CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 d C tzsimonsn.mdwo.com. (717) 243-3341 JEFFREY & BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. : NO. 06-6422 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., JURY TRIAL DEMANDED Defendants CIVIL ACTION - LAW COMPLAINT 1. Plaintiffs, Jeffrey and Barbara Hawkins, are adult individuals who currently reside at 1450 Main Street (Lisburn), Mechanicsburg, PA 17055. 2. Defendant, Gemcraft Homes, Inc. (hereinafter "Gemcraft") is a corporation with an office at 2205-A Commerce Road, Forest Hill, MD 21050. Gemcraft maintains a local office at 4309 Linglestown Road, Harrisburg, PA 17112. 3. Defendant, Liberty Excavators, Inc. (hereinafter "Liberty"), is a Pennsylvania Corporation, that maintains an office at 4402 Gettysburg Road, Camp Hill, PA 17011. 4. Gemcraft owns and is presently developing property that abuts the property owned by Plaintiffs. Gemcraft purchased and owned the remains of a 50' x 75' barn, ten feet of which traversed the Plaintiffs' property. This included a 35 foot, unsupported brick end wall of the partially demolished barn. 5. On April 14, 2006 Mark Vaughn of Liberty knocked on the Plaintiffs' door and requested permission to post some signs related to Gemcraft's pending development of the land abutting two sides of Plaintiffs' property. 6. Mr. Vaughn walked the property with Barbara Hawkins who pointed out several unsafe conditions on or near property owned by the Plaintiffs, including the 35-foot high brick wall. Barbara inquired as to who would be removing the barn wall and its foundation, since they posed obvious safety hazards. Considerable demolition debris including bricks, nails, wood with lead paint, and other garbage was also strewn throughout the foundation of the barn. 7. Mr. Vaughn and Barbara Hawkins also discovered several rusty and leaking 55 galloon drums marked with motor oil and antifreeze labels on Gemcraft's property. 8. Plaintiffs, along with their next door neighbor Mr. Ray Deremer, met on April 17, 2006 with Linda Hockenberry, Community Complaints Director for Lower Allen Township. After being advised of the conditions on the property and reviewing photographs of the property, Ms. Hockenberry contacted DEP. 9. During the first week of May, 2006 Jeffrey Hawkins and Ray Deremer noticed employees of Gemcraft and Liberty on site. The employees included Jeff Rhodes, Field Supervisor for Gemcraft, along with Don Larkin and Larry Fink, Project Supervisors from Liberty. 10. Mr. Hawkins and Mr. Deremer pointed out the unsafe brick wall, the 55 gallon drums, and asbestos shingles on Gemcraft's property. 11. At that time, Jeff Rhodes and Don Larkin assured Plaintiffs that the mess would be cleaned up and the land would be appropriately graded and seeded. Mr. Rhodes and Mr. Larkin assured all present that they wanted to be good neighbors. Liberty advised Mr. Hawkins and Mr. Deremer to speak with any of its supervisors if they had any questions. 12. Mr. Hawkins advised Mr. Larkin and Mr. Fink that if Liberty needed to come onto Plaintiffs' property all they needed to do was ask and inform us what work was going to be done. 13. DEP issued an inspection report and violations notice to Jeff Rhodes of Gemcraft on May 9, 2006. The report lists Gemcraft as the owner of the property and notes that Mr. Rhodes was present during DEP's investigation. A copy of the notice is attached as Exhibit 1 and incorporated by reference. 14. From May 11, 2006 through June 16, 2006, Jeff Hawkins repeatedly asked Larry Fink and John, another supervisor from Liberty, as to when the barn wall was going to be removed. Their responses were always, "Next week." In addition, Mr. Hawkins contacted Don Larkin and Jeff Rhodes on several occasions in order to determine the date of the wall removal. Mr. Larkin responded that BWB Demolition would be doing the clean up "very soon," while Mr. Rhodes failed to respond in any meaningful way. 15. In mid-June, Don Larkin indicated that Liberty had contracted with BWB Demolition Company to remove the brick wall and several other outbuildings located near Plaintiffs' property. BWB Demolition also would be cleaning up all of the demolition debris, except for brick and stone. 16. During the week of June 12, 2006, BWB Demolition Company entered Plaintiffs' property without notice and removed fence rails attached to a fence post on Plaintiffs' property, leaving rusty nails exposed. In addition, someone spray painted "BWB PA One" on the brick wall as well as on the other outbuildings. 17. On June 16, 2006, Jeff Hawkins contacted Don Larkin and demanded the wall be taken down by June 27, 2006, or that he would be forced to take legal action against them. Mr. Hawkins also requested that the parties meet at his property to discuss the steps necessary to remove the wall. 18. On June 23, 2006, Plaintiffs met with Don Larkin and Greg Sholly of BWB Demolition Company. The parties discussed the removal of Gemcraft's brick wall. Plaintiffs asked Mr. Sholly to try to leave about 6 to 8 feet of the wall for privacy purposes, and Mr. Sholly advised that the entire wall would likely come down during demolition. In addition, the parties discussed the grading of the land to insure lateral support of trees owned by the Plaintiffs, and the removal of all demolition waste from Plaintiffs' property and the foundation of the barn. 19. Plaintiffs granted Liberty and BWB Demolition Company permission to come onto Plaintiffs' property to remove Gemcraft's brick wall. 20. On June 26, 2006 Plaintiff's returned home to discover that Gemcraft's brick wall had collapsed onto Plaintiffs' property, destroying a shed and several mature trees, and covering a large section of Plaintiffs' lawn with bricks and other debris. 21. Plaintiffs worked for several hours on June 26, 2006, disabling a live, sparking electrical line, picking brick from the grassy areas of the lawn, and attempting to salvage the contents of the shed. 22. On June 27, 2006 Plaintiffs contacted Jeff Rhodes and Don Larkin to inform them that the brick wall had collapsed. Plaintiffs demanded that the mess be cleaned up immediately and that damages relative to the loss of Plaintiffs' lawn, trees, landscaping, and privacy be addressed. 23. On July 5, 2006, Plaintiffs met with Aaron Wheeler of Gemcraft and Don Larkin of Liberty. Liberty agreed to remove the collapsed brick wall, shed and fence debris, as well as the destroyed trees and stumps in the immediate area of the collapsed brick wall. In addition, Liberty agreed to spread topsoil in the area of the brick wall and perform minor grading modifications per Plaintiffs' directions. 24. Liberty and Gemcraft agreed to construct a privacy berm at the location previously occupied by the brick wall. Liberty and Plaintiffs completed a written agreement on July 5, 2006 establishing the responsibilities of Liberty. A copy of the agreement is attached as Exhibit 2 and incorporated by reference. 25. At the July 5, 2006 meeting, Gemcraft agreed to landscape the berm and to restore the lawn, trees, landscaping and privacy destroyed by the collapse of the brick wall. 26. On July 8, 2006, Liberty inadequately attempted to clean up Plaintiffs' property, but left a significant amount of debris, destroyed a wall that the parties had agreed would remain, and buried the electrical line to the former shed. 27. On July 17, 2006, Plaintiffs sent a letter via certified mail, e-mail and fax to Jeff Rhodes that outlined the agreement to restore Plaintiffs' trees, landscaping, lawn and privacy. The contents of the letter were consistent with the discussions of the July 5, 2006 meeting and subsequent conversations between Jeffrey Hawkins and Mr. Rhodes in which Gemcraft agreed to restore Plaintiffs' lawn, trees and privacy. A copy of that letter is attached as Exhibit 3 and incorporated by reference. 28. At the direction of Jeff Rhodes, Plaintiffs secured a quote from Black Landscape Contracting to develop a landscaping plan and estimate for restoration of Plaintiff's lawn, trees, landscaping and privacy. Plaintiffs' shared the quote with Gemcraft upon returning from vacation in mid August. 29. During the first week of August, Liberty began construction of a privacy berm while Plaintiffs were away on vacation. Liberty failed to contact Plaintiffs regarding construction specifics of the privacy berm as promised verbally and in a July 18, 2006, e-mail to Plaintiffs. Liberty did not complete its construction of the privacy berm nor did it place the privacy berm in the agreed upon location. In addition, a significant amount of debris remained on Plaintiffs' property including bricks, carpeting, wood, metal, and garbage. 30. During the remaining part of August, numerous phone calls made by Plaintiffs to Jeff Rhodes were unreturned. In addition, no one from Liberty contacted Plaintiffs regarding the clean up and construction of the privacy berm. 31. Due to Gemcraft and Liberty's failure to abide by their agreements and Liberty's inadequate attempts to restore Plaintiffs' property, Plaintiffs filed a complaint with District Magistrate Judge Clement on September 7, 2006. 32. At the request of Jeff Rhodes the parties held a meeting at Plaintiffs' property on September 12, 2006, after Defendants had been served with the Complaint. Liberty agreed to correct the privacy berm and complete the grading by October 1, 2006, but Liberty again failed to follow through with its promise. 33. At all times relevant to the events in this Complaint, Defendants exercised custody, control and/or ownership over the adjoining land and the structure which continued onto Plaintiffs' land. 34. At all time relevant to the events in this Complaint, Liberty was the agent of Gemcraft working within the scope of its authority. 35. Prior and subsequent to the collapse of the barn wall and resulting damage to Plaintiffs' property, both Gemcraft and Liberty, by their actions and representations, confirmed their control of the land and structures in question and their joint and individual commitment to prevent the damage to Plaintiffs' property, and after June 26, 2006, to remedy the damage entirely. COUNT I - NEGLIGENCE Jeffrey & Barbara Hawkins v. Gemcraft Homes Inc. 36. The averments of Paragraphs I through 35 are incorporated by reference as if fully set forth herein. 37. Gemcraft failed to remove or temporarily shore the 35 foot, unsupported brick wall which resulted in Plaintiffs suffering damages, including actual physical damages to the property, loss of privacy, loss of use and quiet enjoyment of property, loss of use of shed, and interference with the peaceful possession of the real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Gemcraft Homes, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT II - NEGLIGENCE Jeffrey & Barbara Hawkins v. Liberty Excavators Inc 36. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 37. Liberty failed to remove or temporarily shore the 35 foot, unsupported brick wall which resulted in Plaintiffs suffering damages, including actual physical damages to the property, loss of privacy, loss of use and quiet enjoyment of property, loss of use of shed, and interference with the peaceful possession of the real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Liberty Excavators, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT III - BREACH OF CONTRACT Jeffrey & Barbara Hawkins v. Gemcraft Homes Inc. 38. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 39. Gemcraft failed to satisfy its contractual obligation to remove the 35 foot, unsupported brick wall. Gemcraft's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. 40. Gemcraft failed to satisfy its contractual obligation to install a privacy berm, perform minor grading, spread topsoil, and restore Plaintiffs' trees, landscaping, lawn, and privacy. Gemcraft's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Gemcraft Homes, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT IV - BREACH OF CONTRACT Jeffrey & Barbara Hawkins v. Liberty Excavators, Inc. 41. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 42. Liberty failed to satisfy its contractual obligation to remove the 35 foot, unsupported brick wall owned by Gemcraft. Liberty's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. 43. Liberty failed to satisfy its written obligation to install a privacy berm, perform minor grading, and spread topsoil over the lawn area destroyed by the collapse of the brick wall. WHEREFORE, Plaintiffs demand judgment against Defendant Liberty Excavators, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By: David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 717-243-3341 Counsel for Plaintiffs Dated: December 12, 2006 x???e?? ;Aa .K.?.aoE ??. COM! _,NWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION BUREAU OF LAND RECYCLING AND WASTE MANAGEMENT I GENERAL INSPECTION REPORT Type of Inspection Site Visit wM Identification Number Entry Time/Date 9:30 am - 4/28/2006 Exit Time/Date 10:00 am - 4/28/2006 Facility/Incident Name and Location Municipality Corner field at Main Street and Lisbum (toad Lower Allen Township Mechanisbur , PA Count}' Cumberland Name, Address of Responsible Official Gem Craft Homes Jeff Rhodes, Field Supervisor 2205-A Commerce Rd. Forest Hill, MD 21050 Telephone (410) 893-8458 Title Owner Interviewed ® Yes ? No OBSERVATIONS AND COMMENTS: Jonathan Chripczuk and McWn Laudenslager of the Department investigated a complaint of dumping and abandoned drums of liquid on 4/28/2006. Present from Lower Allen Township was Linda Hockenberry, the complaints coordinator. Jonathan Chripczuk conducted a follow-up site visit on 5/9/2006. Jeff Rhodes of Gem Craft Homes was present at the time. The findings of both visits are included in this report. The following were observed: 1. The weather was clear and calm, approximately 50 degrees F. 2. The foundation/lower level of a barn was observed. Many of the stall walls of the barn were still intact. Also observed in the foundation were piles Construction & Demolition waste, mainly consisting of wood beams and brick. Also included was a small amount of metals. 3. According to a 4/25/2006 telephone conversation with the complainant, the bam was recently demolishe . However, the northern wall of the barn was not demolished. The wall is approximately 20 feet tall and 30 feet long. Several cracks were observed in the wall. 4. Seven 55-gallon drums were observed on the site. The drums were in adequate condition and no leaking or staining was observed around the drum area. Two of the drums appeared to be full and two dninis were partially full. One partial drum and one full drum had old "Drydene" motor oil labels. One full drum had an antifreeze label. One partial drum had no label. All labels on the drums were old and partially worn off and in bad shape. 5. Approximately 30-50 waste tires were observed on the site 6. Several large metal tanks were observed on site. The tanks are presumed to be left over from a carpet _ cleaning operation. 7. During the follow-up visit on 5/9/2006, it was observed that some of the scrap metal had been removed by the previous property owner. Additionally, a pile of Construction & Demolition waste was observed that included shingles. The shingles appeared to contain asbestos. _ RECOMMENDATIONS: 1. The Department recommends proper disposal of the seven 55-gallon drums on site. Any drums with material should be disposed of based on the materials contained in the drums. Generator knowledge of the drums may be adequate to detennine the contents of each drum. If generator knowledge is not available, laboratory sampling may be necessary. Please forward disposal receipts to the Department. 2. Any waste on site should be disposed of at a permitted disposal facility. Scrap metal may be taken to a Exhibit I scrap yard. Any waste material may be akcn to a landfill. Please note that brick _Id block can be used as clean fill and is not considered waste. Dimensional lumber is not considered clean fill and should be disposed of at a landfill permitted to accept Construction & Demolition waste. Please forward any disposal receipts to the Department. 3. Asbestos-containing materials should be handled by a certified asbestos contractor. The Department therefore recommends that the shingles be inspected to determine applicability to state air quality regulations. If the material is found to be Regulated Asbestos-Containing Material, please forward any disposal receipts to the Department. A fact sheet is included with this report that explains the asbestos program. VIOLATIONS: 1. 35 P.S. Section 6018.610(1): It shall be unlawful for any person or municipality to dump or deposit, or pen-nit the dumping or depositing, of any solid waste onto the surface of the ground or underground or into the waters of the Commonwealth, by any means, unless a permit for dumping of such waste has been obtained from the Department; provided, the Environmental Quality Board may by regulation exempt certain activities associated with normal fanning operations as defined by this act from such pen-nit requirements. 2. 35 P.S. Section 6018.610(2): It shall be unlawful for any person or municipality to construct, alter, operate, or utilize a solid waste storage, treatment, processing or disposal facility without a permit from the department as required by this act or in violation of the rules and regulations adopted under this act, or orders of the Department, or in violation of any terns or condition of any permit issued b the Department. 3. 35 P.S. Section 6018.610(4): It shall be unlawful for any person or municipality to store, collect, transport, process, treat, beneficially use or dispose of, or assist in the storage, collection, transportation, processing, treatment, beneficially use of disposal of, solid waste contrary to the rules or regulations adopted under this act, or orders of the Department, or any term or any condition or any pennit, or in a manner as to create a public nuisance or to adversely affect the public health safety and welfare. 4. 35 P.S. Section 6018.610(9): It shall be unlawful for any person or municipality to cause or assist in the violation of any provision of this act, any rule or regulation of the Department, any order of the Department or an term of condition of an permit. 5. 35 P.S. Section 6018.302(a): It shall be unlawful for any person or municipality to dispose, process, store, or permit the disposal, processing, or storage of any residual waste in a manner which is contrary to the rules and regulations of the Department or to any permit or to the terms or conditions of any permit or any order issued b the Department. 6. 35 P.S. Section 6018.301: No person or municipality shall store, transport, process, or dispose of residual waste within this Commonwealth unless such storage, or transportation, is consistent with or such processing or disposal is authorized by the rules and regulations of the Department and no person or municipality shall own or operate a residual waste processing or disposal facility unless such person or municipality has first obtained a pen-nit for such facility from the Department. Sample Collected Sample Numbers I Analyses ? Yes ® No Inspector Name Inspector Signature Headquarters Date Jonathan Chripczuk _; SCRO S //%6- Person Interviewed Name Signature of Person Interviewed Title Date Jeff Rhodes Mailed Field Supervisor This document is official notification that a representative of the Department of Environmental Protection inspected the above-mentioned facility. The findings of the inspection are shown above and on any attached pages. Violations discovered as a result of this inspection are indicated. Violations may also be discovered upon examination of the results of laboratory analyses, review of pertinent documents and further investigation. Notification will be forthcoming if such violations are discovered. Page .- of ??- ASBESTOS PROGRAM FOR CONTRACTORS WORKING IN PENNSYLVANIA Pennsylvania's asbestos program includes federal and state regulations to help protect the public from exposure to large amounts of airborne asbestos. The following is a brief summary of the regulations. Information in this fact sheet does not supercede any federal, state or local requirements. WHAT IS ASBESTOS? Asbestos is a generic term used to describe a variety of natural mineral fibers. From the early 1930s until the 1970s, manufacturers added asbestos to products to strengthen them and to provide heat insulation and fire resistance. Asbestos also resists corrosion and is a poor conductor of electricity. Because few products contained all of these properties, asbestos was widely used in the construction of homes, schools and other buildings. HOW CAN PEOPLE BE EXPOSED TO ASBESTOS? Most people are exposed to small amounts of asbestos in their daily lives. However, if materials containing asbestos are disturbed - for example sawed, scraped or sanded into a powder - asbestos fibers are more likely to become airborne and inhaled into the lungs. Contact the municipality where the project is located to find out if there are any local regulations. WHAT ARE SOME IMPORTANT DEFINITIONS IN THE ASBESTOS NESHAP REGULATIONS? • Friable ACM is material containing more than one percent asbestos that, when dry, can be crumbled, pulverized or reduced to a powder by hand pressure. • Nonfriable ACM is material containing more than one percent asbestos that, when dry, cannot be crumbled, pulverized or reduced to a powder by hand pressure. It is divided into two categories: Category I includes asbestos-containing packings, gaskets, resilient floor coverings or Vinyl Asbestos Floor Tile, and asphalt roofing products. HOW IS ASBESTOS REGULATED IN PENN- SYLVANIA? Because asbestos, in certain forms, has been determined to cause serious health problems, the Department of Environmental Protection (DEP) regulates the removal, collection, transportation and disposal of Asbestos-Containing Materials (ACM). DEP's Air Quality program has adopted and enforces the federal Environmental Protection Agency's (EPA) 40 CFR Part 61 Subpart M, the Asbestos National Emission Standard for Hazardous Air Pollutants (NESHAP) regulations, as amended on November 20, 1990. Should a project be subject to the NESHAP regulations, a minimum ten-day notification of the project is required by both EPA and DEP. The DEP does not regulate the removal of ACM from private residences unless the residence is an apartment with five or more units. The State Department of Labor and Industry enforces Pennsylvania's Asbestos Occupations Accreditation and Certification Act of 1990 (Act 194 and Act 161), which requires at least a five-day notification of any asbestos project and certification for the following asbestos occupations: contractor, inspector, management planner, project designer, supervisor and worker. Call the Department of Labor and Industry at (717) 772-3396 for more information regarding Act 194 and Act 161. Category II includes any material, except Category I nonfriable ACM, such as transite siding shingles, galbestos, concrete-type piping and other ACM concrete-type products. Regulated Asbestos-Containing Materials (RACM) - (a) friable ACM; (b) Category I nonfriable ACM that has passively become friable by water damage, fire damage or weathering; (c) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, drilling or abrading; and (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized or reduced to a powder in the course of demolition or renovation operations. • Demolition - the wrecking or taking out of any load- supporting structural member of a facility together with any related handling operations or the intentional burning of any facility. • Renovation - altering a facility or one or more facility components in any way, including the stripping or removal of RACM from a facility component. Facility - any institutional, commercial, public, industrial or residential structure, installation or building. A residential building with four or fewer dwelling units is not a facility unless it is part of an Commonwealth of Pennsylvania • Department of Environmental Protection Facility - any institutional, commercial, public or industrial structure. A single residential building with four or fewer dwelling units is not a regulated facility under the NESHAP regulation unless it is part of an installation, which was previously subject to NESHAP regulations or its main use is not residential. • Installation - any group of buildings or structures at a single demolition or renovation site that are under the control of the same owner or operator. An installation may consist of two or more residential structures. WHAT DO I NEED TO KNOW BEFORE REMOVING ASBESTOS IN PENNSYLVANIA? State regulations stipulate that it is illegal for anyone to engage in any asbestos occupation (worker, supervisor, project designer, inspector, management planner or contractor) without proper certification from the PA DLI. These requirements, along with a five-day notification prior to the start of any abatement or demolition project where ACM is present, are outlined in the Pennsylvania Asbestos Occupations Accreditation and Certification Act of 1990 (Acts 194 and 161). Call the PA DLI at 717-772-3396 for more information regarding these requirements. The building must be thoroughly inspected for ACM prior to any renovation or demolition. If the amount of friable ACM that will be removed is more than 260 linear feet, 160 square feet or 35 cubic feet, the project falls under the federal NESHAP regulations. This requires that a notification be postmarked or hand delivered to DEP and EPA at least TEN WORKING DAYS prior to the start of the project. All demolitions of regulated facilities (as defined above) also require a ten-day notification to DEP and EPA, regardless of the presence of asbestos. Additional regulations exist for demolition and renovation of any building containing ACM in Philadelphia and Allegheny counties. In Philadelphia County, call 215-685-7576. For questions in Allegheny County, call 412-578-8133. It is important to contact the appropriate office if your project is located in either of these counties. WHAT ARE THE PROCEDURES FOR NOTIFICATION? Notification for projects in Pennsylvania should be made on the "Asbestos Abatement and Demolition/Renovation Notification" form (revised 10/2002) (web form revised 8/2005). A form may be obtained by contacting the DEP asbestos office at 717-787-9257 or by contacting the nearest DEP regional office listed below. The form also can be printed from the DEP Web site found at www.depweb.state.pa.us (Choose Air Topics, then All DEP Programs (A-Z), and under the A heading choose Asbestos). Complete instructions are given with the form. The notice must be delivered by the U.S. Postal Service, commercial delivery service or hand delivery. FACSIMILES ARE NOT ACCEPTABLE. WHAT IF I NEED MORE INFORMATION? To obtain copies of the NESHAP regulations, the notification form or other information, please contact your regional DEP office: Southeast Regional Office - 484-250-5920 for work in Bucks, Chester, Delaware and Montgomery Counties. Northeast Regional Office - 570-826-2511 for work in Carbon, Lackawanna, Lehigh, Luzerne, Monroe, Northampton, Pike, Schuylkill, Susquehanna, Wayne and Wyoming Counties. Southcentral Regional Office - 717-705-4702 for work in Adams, Bedford, Berks, Blair, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lancaster, Lebanon, Mifflin, Perry and York Counties. Northcentral Regional Office - 570-327-3638 for work in Bradford, Cameron, Centre, Clearfield, Clinton, Columbia, Lycoming, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga and Union Counties. Southwest Regional Office - 412-442-4000 for work in Armstrong, Beaver, Cambria, Fayette, Greene, Indiana, Somerset, Washington and Westmoreland Counties. Northwest Regional Office - 814-332-6940 for work in Butler, Clarion, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, McKean, Mercer, Venango and Warren Counties. For work done in Philadelphia County, contact Air Management Services at 215-685-7576. For work done in Allegheny County, contact Allegheny County Health Department at 412-578-8133. For more information, visit DEP's Web site at www.depweb. state. pa.us, Keyword: "Air Topics." Commonwealth of Pennsylvania Department or Environmental Protection Edward G. Randall, Governor Kathleen A. McGinty, Secretary An Equal Opportunity Employer 2700•FS-DEP2108 Rev. 31006 Recycled Paper T Ex? 6,t ? Q RKYRE-Lf--- i J RKYCAB LIBERTY EXCAVATORS, INC. July 5, 2006 Jeffrey B. & Barb Hawkins 1450 Main Street Mechanicsburg, PA 17055 Reference: Collapsed Barn Wall at Yellow Breeches Farm Liberty Project #206011 Dear Jeff & Barb: Site Development Contractor 4402 Gettysburg Road Camp Hill, PA?1701 1 717-761-8461 Fax: 717-73 1-4634 Thank you for meeting with us today. This letter serves to summarize our discussion as well as reduce our verbal agreement to writing. Liberty Excavators will enter your property for the purpose of removing the barn wall debris, shed debris, fence debris, and stumps in the immediate area of the collapsed wall as directed by you. We will dispose of this material in accordance with PADEP requirements. Weather permitting, this will occur on Friday, July 7, 2006. If weather delays are encountered, the work will be performed on the first weekday suitable weather is present. We will also re-spread topsoil in the area damaged by the barn wall and perform minor grading modifications per your direction as far as they are permitted by Lower Allen Township and standard construction standards for drainage. In the course of this grading, a privacy berm will be constructed at the location previously occupied by the barn wall. The construction of the privacy berm will be completed upon completion of grading the building lots adjacent to your property. This grading will not disturb the lateral support of your adjoining land. Landscaping of the berm, planting of any trees or shrubbery, lawn restoration, and replacement of the shed and fence will be by other contractors secured by Gemcraft Homes or yourself. Upon satisfactory completion of the clean up and grading, you agree to release Liberty Excavators, Inc. from any personal claims for property damages related to the collapse of the barn wall. We are providing the above proposal in the spirit of helping a neighbor resolve an unfortunate situation created by others, and do not admit nor assume any responsibility for causing it. Please sign this letter below and fax it back to 717-731-4634 by noon on Thursday July 6, so that we may proc with the work v it e schedule specified above. 7171 Si i / inted Na Date Sign ure/Printed Name Date Jeffrey B. Hawkins Barb Hawkins Sincerelv, LIBERTY EXCAVATORS, INC,. Don Larkin Exhibit 2 Project Manager Copy: File#206022 Jeff Rhodes, Gemcraft Homes Torn Scannell, Gemcraft Homes Aaron Wheeler, Gemcraft Homes J?? b, q 3 Qt PPFCYCLFOKYCABLFBAPFP July 17, 2006 Mr. Jeff Rhodes Gemcraft Homes 2205-A Commerce Road Forest Hill, MD 21050 VIA CERTIFIED MAIL/EMAIL/FAX RE: Clean Up and Restoration of the Hawkins' Property Mr. Rhodes: I am following up on our discussion this past Friday and the meeting held on July 6th with Aaron Wheeler from Gemcraft Homes ("Gemcraft") and Don Larkin of Liberty Excavators, Inc ("Liberty"). As agreed during the July 6th meeting and pursuant to a written agreement, Liberty did the following work on July 8th: ? Moved brick from my yard to within the footprint of the barn. Removed a crushed shed and its concrete foundation. Removed two large, crushed trees including the stumps. Spread clean fill over most of the disturbed area in my yard. Although there remains a large pile of brick on my property, Mr. Larkin indicated that Liberty would be removingthe debris late this week or early next week when it completes the grading of Gemcraft's property, which abuts the southern aspect of my property. Aaron Wheeler stated that Gemcraft would be willing to have Liberty construct a "beauty/privacy" berm along the southern portion of my property. We also discussed potentially using Black's Landscaping to plant some trees and restore the lawn that was destroyed. Black's Landscaping is two doors down from the construction site and is currently under contract with Liberty to do seeding of the swales/drainage basins. Mr. Wheeler's offer to plant trees and restore our lawn is consistent with the agreements we made during phone discussions over the past few weeks. So as to avoid any confusion between the obligations of Liberty and Gemcraft, I recommend that the parties define who will be responsible for what. My take is that Liberty expects to be relieved of its responsibilities when it completes the final rough grading of the property and the construction of the privacy berm. If this is not the case, the parties need to let me know. In Exhibit 3 addition, I need to have a general idea as to what the final rough grade and the privacy berm will look like before it is constructed. With regard to the planting of trees and the restoration of my lawn, I propose that Gemcraft do the following: ? Agree in writing to use Black's Landscaping or other acceptable landscaping company for the planting of trees reasonably sufficient to restore the privacy lost by the destruction of trees, shrubs, and the shed. ? Agree in writing to use Black's Landscaping or other acceptable landscaping company for the restoration of the destroyed lawn with quality top soil and grass seed. This would include a final grading of the land. ? Agree in writing to have the restoration work completed by September 30, 2006. Finally, I would note that there are two large trees on my property that will need lateral support. If the present grade of Gemcraft's land is continued in this area, those trees will not have adequate lateral support. The elevation of the land in this area has been the same for over 150 years. Any disruption of the land that removes the lateral support of my property will be a violation of my common law right to lateral support and is an action I will challenge. Your prompt response is anticipated and will be appreciated. I would like to have a signed written agreement with Gemcraft completed by July 26, 2006. If you have any questions please do not hesitate to contact me at 717-697-0277 or 717-720-4078. Respectfully, 07 Jeff re . Hawkins cc: Mr. Don Larkin 12/11/2006 09:56 7177204213 OFFICE OF LEGAL COUN PAGE 02 VERIFICATION We, Jeffrey Hawkins and Barbara Hawkins, hereby verify that we have reviewed the foregoing document and state that to the extent that the foregoing document contains facts supplied by or known to us, they are true and correct to the best of our knowledge, information and belief, We understand that false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unworn falsification to authorities. 1e y a ns 't q$k??? ?' gIftarbara Hawkins CERTIFICATE OF SERVICE AND NOW, this 12th day of December, 2006, I hereby certify that I have served the foregoing Complaint on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: JoAnne E. Kinzel, Esquire LAW OFFICE OF SNYDER & DORER 214 Senate Avenue Suite 503 Camp Hill, PA 17011 Counsel for Defendant Gemcraft Homes, Inc. AND NOW, this 12th day of December, 2006, I hereby certify that I have served the foregoing Complaint on the following by depositing a true and correct copy of same in the United States mail, certified mail, return receipt requested, addressed to: Liberty Excavators, Inc. c/o Mr. Don Larkin 4402 Gettysburg Road Camp Hill, PA 17011 David A. Fitzsimons, Esquire r.-? N 1'?J ,-? , to John W. Dornberger, Esquire Attorney ID #69293 POST & SCHELL, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 jdomber er ?postschell.com (717) 731-1970 JEFFREY & BARBARA HAWKINS, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO - 64AA NO.-9b-8?2- GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., Defendants JURY TRIAL DEMANDED CIVIL ACTION -LAW ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of John W. Dornberger, Esquire, of Post & Schell, P.C., on behalf of Defendant Liberty Excavators, Inc. relative to the above-captioned matter. Respectfully submitted, ST & SCHELL, P.C. John W. Dornberger, Esquire Attorney ID # 69293 17 North Second Street, 12th Floor Harrisburg, PA 17101 (717) 731-1970 Dated: January 3, 2007 CPH 381007v1 CERTIFICATE OF SERVICE I, Janet T. McGarvey, an employee of Post & Schell, P.C., hereby certify that I am this day serving a true and correct copy of the foregoing Entry of Appearance upon the persons and in the manner set forth below: Via E-mail/First Class Mail David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Plaintiffs, Jeffrey & Barbara Hawkins JoAnne E. Kinzel, Esquire Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Counsel for Defendant, Gemcraft Homes, Inc. POST & SCHELL, P.C. net T. McGarvey Dated: January 3, 2007 ? ? -r? cr! c,. .?s,. ? -c? V 3 ?? ?..- ? ?? ? ' V John W. Dornberger, Esquire Attorney ID #69293 POST & SCHELL, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 j dornberger@postschell. com (717) 731-1970 JEFFREY & BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. ??aa NO. 06-042 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., Defendants JURY TRIAL, DEMANDED CIVIL ACTION -LAW NOTICE TO PLEAD TO: Jeffrey & Barbara Hawkins c/o David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Gemcraft Homes, Inc. c/o JoAnne E. Kinzel, Esquire Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 You are hereby notified to file a written response to the enclosed New Matter to Plaintiff's Complaint within twenty (20) days from service hereof. PO& S.L, P.C. John W. ornberger, Esquire Attorney D. #69293 17 North Second St., 12th Floor Harrisburg, PA 17101-1601 (717) 731-1970 Attorneys for Defendant Dated: January 30, 2007 CPH 381356v1 John W. Dornberger, Esquire Attorney ID #69293 POST & SCHELL, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 jdomberger@postschell.com (717) 731-1970 JEFFREY & BARBARA HAWKINS, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-0422 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., Defendants JURY TRIAL DEMANDED CIVIL ACTION -LAW ANSWER AND NEW MATTER OF DEFENDANT LIBERTY EXCAVATORS, INC. TO PLAINTIFFS' COMPLAINT Defendant Liberty Excavators, Inc. ("Defendant" or "Liberty" or "LEI"), by and through its attorneys, Post & Schell, P.C., hereby files this Answer and New Matter to the Complaint of Plaintiffs Jeffrey and Barbara Hawkins ("Plaintiffs") as follows: 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 2. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 3. It is admitted that Defendant is Liberty Excavators, Inc. which maintains business offices at 4402 Gettysburg Road, Camp Hill, Cumberland County, Pennsylvania. 4. Admitted in part; denied in part. It is admitted that Defendant Gemcraft Homes, Inc. ("Gemcraft") owns and is presently developing real property (hereinafter "Gemcraft Property") adjacent to the property of Plaintiffs (hereinafter "Hawkins Property"), who currently reside at 1450 Main Street, Mechanicsburg, Cumberland County, Pennsylvania. Upon information and belief, Gemcraft purchased the Gemcraft Property from Keith and Sandra Peifer, h/w. LEI is not aware whether or not the Gemcraft purchase agreement with Keith & Sandra Peifer included the barn, the wall or the portion of the barn that was on Hawkins' property. Finally, Plaintiffs' description of the wall is denied. Upon information and belief, LEI believes that the wall was approximately 20' in height and not 35' as alleged. 5. It is admitted that Mark Vaughn on April 14, 2006 knocked on Plaintiffs' door to confirm that the area where LEI intended to place certain signs was not Plaintiffs' property. 6. It is admitted that Mark Vaughn and Mrs. Hawkins did walk the site on this date, but the only discussion regarding the barn wall was a request by Mrs. Hawkins that portions of it remained after demolition, including an existing archway. The majority of the discussions between Mrs. Hawkins and Mr. Vaughn took place walking along Lisburn Road trying to confirm the location of the property line between Hawkins' property and Gemcraft's property. It is denied that there was discussion or concerns raised regarding potentials dangers associated with the barn wall. At the time of the discussion, Mark Vaughn would have had no knowledge as to who would be demolishing the barn wall and, therefore, it is denied that he made any representations about demolition of the barn wall. All remaining allegations are denied. 7. Denied. To the contrary, Mark Vaughn and Mrs. Hawkins observed drums which were intact with nothing leaking from them. This facts is consistent with PaDEP's inspection report. See #5 of DEP General Inspection Report attached as Exhibit #1 to Plaintiffs' Complaint. -2- 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 9. Admitted in part; denied in part. The corresponding allegation does not set forth with specificity the date on which this encounter occurred and, therefore, the allegations are denied. It is admitted that a pre-construction meeting with Brian Jaymes of the Cumberland County Conservation District took place on site on 4/17/06. Mr. Larkin did not visit this site at all the week of 5/1/06 - 5/5/06. 10. Admitted in part; denied in part. It is admitted that a conversation among Plaintiff/Husband, Mr. Deremer, Jeff Rhodes of Gemcraft and Don Larkin and Larry Fink of Liberty took place in or about early May, 2006 at the Gemcraft property. It is admitted only that Mr. Hawkins questioned whether there might be asbestos shingles present, and Mr. Larkin responded that an outside firm would be conducting an asbestos survey because Gemcraft and LEI did not possess the expertise nor proper certifications to make such a determination. It is denied that Mr. Hawkins questioned the safety of the barn wall at that time. It is admitted only that Mr. Hawkins pointed out the miscellaneous debris scattered around the site, and that Gemcraft and LEI assured him that it would be cleaned up through the course of developing the property. All remaining allegations are denied as conclusions of law. 11. It is admitted that at the time of the discussions with Plaintiff/Husband and Mr. Deremer, the representatives of both Gemcraft and Liberty indicated that they wanted to be good neighbors. It is further admitted that Mr. Hawkins questioned whether there might be asbestos shingles present, and Mr. Larkin responded that an outside firm would be conducting an asbestos survey because Gemcraft and LEI did not possess the expertise nor proper certifications to make -3- such a determination. It is also admitted that Mr. Hawkins pointed out the miscellaneous debris scattered around the site, and that Gemcraft and LEI assured him that it would be cleaned up through the course of developing the property and in accordance with any PaDEP requirements. All remaining allegations are denied as conclusions of law. 12. It is admitted that Mr. Hawkins made this statement, however, on behalf of LEI, Mr. Larkin replied that LEI would not enter his property without written permission because LEI's agreement was with Gemcraft, not Hawkins. 13. Denied. The corresponding allegations are denied because the inspection report dated May 9, 2006 is a document which speaks for itself. It is admitted that the inspection report was issued by the Pennsylvania Department of Environmental Protection to Gemcraft on May 9, 2006. The observations and comments contained in the Report are denied. 14. Admitted in part; denied in part. It is admitted that there were communications between Plaintiff/Husband and representatives of Liberty during the alleged time period and that LEI made representations about when demolition may begin. It is denied that representatives of Libertv ever reached a specific agreement or made specific representations to Plaintiff/Husband or any other party as to the exact date on which or by which the wall would be removed because, at this time, Conservative Environmental Services was performing the asbestos and environmental surveys. Therefore, LEI did not have an exact date when this demolition work would be complete. 15. Admitted. 16. It is denied that Liberty and/or BWB Demolition Company entered the property of Plaintiffs to perform work without notice during the week of June 12, 2006. To the contrary, BWB was present on the Gemcraft Property and the Hawkins Property at this time for the sole -4- purpose of making underground utility makings as required and permitted by law, the pursuant Pennsylvania Underground Utility Line Protection Law (One-Call) Act 287 of 1974, P.L. 852; 73 P.S. § 176. LEI denies and has no knowledge regarding removal of fence rails or "rusty nails." 17. It is denied that Mr. Hawkins made a demand for removal by a specific date. LEI has no record of phone messages or conversation of the sort. Moreover, Mr. Larkin has no recollection of such a demand. 18. Admitted in part; denied in part. It is admitted that the Plaintiffs met with Don Larkin of Liberty and Greg Sholly of BWB Demolition Company on June 23, 2006 and generally discussed the removal of the wall. It is admitted that Mr. Hawkins expressed concerns regarding "lateral support" for trees on his property which were adjacent to proposed grading on Gemcraft's property. It is admitted that Don Larkin told him what LEI could do, but that Gemcraft and LEI and the Hawkins were limited by township and conservation district requirements as a result of the approved plans. 19. Admitted in part; denied in part. It is admitted that on or about June 23, 2006, Plaintiffs granted Liberty and BWB Demolition Company permission to enter Plaintiffs' property to perform work. It is denied that Liberty formed any agreement with Plaintiffs at this time as to when the work would occur. 20. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. -5- 21. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 22. It is admitted that Mr. Hawkins left a voice mail message for Mr. Larkin. 23. Admitted in part; denied in part. It is admitted that Plaintiffs met with Aaron Wheeler of Gemcraft and Don Larkin of Liberty on July 5, 2006. The scope of the work which Liberty agreed to perform as a result of the July 5, 2006 conversation with the Plaintiffs is set forth in the letter of Don Larkin of Liberty to Plaintiffs of July 5, 2006, a copy of which was attached as Exhibit 2 to Plaintiffs' Complaint and incorporated by reference herein. 24. Admitted in part; denied in part. The July 5, 2006 letter from Don Larkin of Liberty to Plaintiffs is a document which speaks for itself. To the extent that Plaintiffs alleged that Liberty failed to perform in accordance with the representations in the July 5, 2006 letter, the corresponding allegations are denied. Further, LEI in the letter states that grading and construction of the berm would be completed upon completion of grading of Gemcraft's lots adjacent to Hawkins. At this time, grading of Gemcraft's lots was not 100% complete and did not occur until the last week of December, 2006. 25. This paragraph references what Gemcraft allegedly agreed to, not what LEI agreed to do. LEI is not aware of the specific terms of any alleged agreement between Gemcraft and Plaintiffs in this regard. 26. Denied. It is denied that Liberty inadequately cleaned up the barn wall debris, shed debris, fence debris and related stumps on Plaintiffs' property as alleged. To the contrary, Liberty acted reasonably under the circumstances. It is further denied that Liberty destroyed any -6- portion of any wall contrary to any alleged prior agreement with Plaintiffs or any other party. It is further denied that LEI "buried" an electrical line. 27. Admitted in part; denied in part. The letter of July 17, 2006 from Plaintiffs to Jeff Rhodes of Gemcraft is a document which speaks for itself. Liberty denies any allegations in the corresponding paragraph or as set forth in Plaintiffs' July 17, 2006 letter that Liberty failed to perform work reasonably or in accordance with any agreement with the Plaintiffs. All remaining allegations are denied as conclusions of law to which no response is required. 28. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. 29. Admitted in part; denied in part. It is admitted that Liberty began construction of a privacy berm on Plaintiffs' property at or near this time and that the berm was constructed on Gemcraft Property. Mr. Larkin's e-mail to Mr. Hawkins on 7/18/06 only stated that his letter to Jeff Rhodes dated 7/17/06 (Exhibit #3 of Claim Notice) was consistent with LEI's understanding of what was to occur, and that LEI would telephone Mr. Hawkins when the demolition cleanup adjacent to his property was going to occur. The remaining allegations are denied. Further, it is denied that "a significant amount of debris" remained on Plaintiffs' property after Liberty performed its work as alleged. 30. Admitted in part; denied in part. With respect to Plaintiffs' numerous calls to Jeff Rhodes at Gemcraft, the allegation is denied by Liberty because, after reasonable investigation, Liberty has no knowledge or information sufficient to form a belief as to the truth of the allegation. With respect to the allegations that no one from Liberty contacted Plaintiffs regarding cleanup, it is denied that Hawkins made such complaints to LEI. To the contrary, LEI -7- and Plaintiffs met on site prior to the cleanup, and then LEI performed the cleanup in accordance with the understanding. LEI never followed up with Plaintiffs because LEI assumed that everything was satisfactory, not having heard from the Plaintiffs. 31. Without admitting liability therefore, admitted. 32. It is admitted that a meeting of the parties was held on Plaintiffs' property on September 12, 2006, at which time additional work with respect to the privacy berm was discussed. It is denied that LEI entered into any separate agreement with Plaintiffs at this meeting to perform any work. Gemcraft and Plaintiffs discussed additional berm work, some of which Gemcraft later instructed LEI to perform following township review and approval. 33. Denied. The corresponding allegations are denied as conclusions of law to which no response is required. 34. Denied. The corresponding allegations are denied as conclusions of law to which no response is required. 35. Denied. The corresponding allegations are denied as conclusions of law to which no response is required. WHEREFORE, Defendant Liberty Excavators, Inc. respectfully requests that this Honorable Court enter judgment in its favor and dismiss the Complaint of Plaintiffs. COUNT I - NEGLIGENCE JEFFREY & BARBARA HAWKINS v. GEMCRAFT HOMES, INC. 36. Without admitting the truth of the averments therein, admitted. 37. Denied. The corresponding allegations are directed to parties other than Answering Defendant and, therefore, no response is required. To the extent a response is required, after reasonable investigation, Defendant is without knowledge or information -8- sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law to which no response is required. WHEREFORE, Defendant Liberty Excavators, Inc. respectfully requests that this Honorable Court enter judgment in its favor and dismiss the Complaint of Plaintiffs. COUNT II - NEGLIGENCE JEFFREY & BARBARA HAWKINS v. LIBERTY EXCAVATORS, INC. 36a.1 Without admitting the truth of the averments therein, admitted. 37a. Denied. The corresponding allegations are denied pursuant to Pa. R. Civ. P. 1029(e). It is specifically denied that Liberty had any duty, under the common law or by agreement, with Plaintiffs to remove or temporarily shore the brick wall as alleged. To the extent that Plaintiffs prove that any such duty existed, the same being denied, it is denied that Liberty breached any obligation, acted unreasonably or that its actions or omissions were the proximate cause of Plaintiffs' damages. Any remaining allegations are denied as conclusions of law to which no response is required. Liberty incorporates this response into each and every paragraph of this Answer to this Complaint as if set forth at length therein. WHEREFORE, Defendant Liberty Excavators, Inc. respectfully requests that this Honorable Court enter judgment in its favor and dismiss the Complaint of Plaintiffs. COUNT III - BREACH OF CONTRACT JEFFREY & BARBARA HAWKING v. GEMCRAFT HOMES, INC. 38. Without admitting the truth of the averments therein, admitted. 1 Plaintiffs' Complaint inadvertently included two paragraphs 36 and 37. Therefore, in this pleading, Liberty has referred to the second paragraph 36 as 36a and the second paragraph 37 as 37a. -9- 39.-40. Denied. The corresponding allegations are directed to parties other than Answering Defendant and, therefore, no response is required. To the extent a response is required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. Any remaining allegations are denied as conclusions of law to which no response is required. WHEREFORE, Defendant Liberty Excavators, Inc. respectfully requests that this Honorable Court enter judgment in its favor and dismiss the Complaint of Plaintiffs. COUNT IV - BREACH OF CONTRACT JEFFREY & BARBARA HAWKINS v. LIBERTY EXCAVATORS, INC. 41. Without admitting the truth of the averments therein, admitted. 42. Denied. The corresponding allegations are denied pursuant to Pa. R. Civ. P. 1029(e). It is denied that Liberty had a duty, under the common law or under any agreement, with Plaintiffs or Gemcraft to temporarily shore the brick wall or to remove the brick wall within any specific time period. Accordingly, to the extent that Plaintiffs' damages were proximately caused by a failure to provide temporary shoring to the wall or to remove the wall by any specific time deadline, it is denied that the actions or omissions of Liberty were the proximate cause of Plaintiffs' damages. Any remaining allegations are denied as conclusions of law to which no response is required. Liberty incorporates this response into each and every paragraph of this Answer to this Complaint as if set forth at length therein. 43. Denied. The corresponding allegations are denied pursuant to Pa. R. Civ. P. 1029(e). To the contrary, it is denied that Liberty failed to construct the privacy berm or that -10- Liberty failed to perform grading and soil spreading as alleged. Any remaining allegations are denied as conclusions of law to which no response is required. WHEREFORE, Defendant Liberty Excavators, Inc. respectfully requests that this Honorable Court enter judgment in its favor and dismiss the Complaint of Plaintiffs. NEW MATTER Defendant hereby raises the following New Matter pursuant to Pa. R. Civ. P. 1026, 1030 and 1032: 44. Plaintiffs have failed to state a cause of action upon which relief may be granted. 45. On or about March 2, 2006, Liberty entered into a construction contract with Defendant Gemcraft to perform earth work and site construction at a property known as "Yellow Breeches Farm," located in Lower Allen Township, Cumberland County, Pennsylvania (hereinafter "Gemcraft Property"). A true and correct copy of the March 2, 2006 Construction Contract between Liberty Excavators, Inc. and DLM, LLC, on behalf of Gemcraft Homes, Inc., including the proposal, is hereby attached as Exhibit "A." 46. Defendant Gemcraft Homes, Inc. was the owner of the Gemcraft Property on March 2, 2006 when it entered into the Construction Contract with Liberty and has remained the owner of the Gemcraft Property to date. 47. The barn wall described in paragraph 4 of the Plaintiff's Complaint was located on the Gemcraft Property. 48. Liberty does not and has not ever possessed any ownership interest in the Gemcraft Property. -11- 49. From March 2, 2006 when it entered into the Construction Contract with Gemcraft, Liberty performed certain work on the Gemcraft Property pursuant to the direction of Gemcraft and in accordance with its Contract Agreement with Gemcraft as a contractor. 50. Liberty asserts all of the defenses, limitations and provisions of any and all agreements entered into by and between Liberty and Gemcraft and Liberty and the Plaintiffs and aver that the remedies of Plaintiffs as against Liberty are limited exclusively thereto and, therefore, the present action may be barred. 51. The damages alleged by Plaintiffs, if any, were not caused by any action and/or omission of Liberty. 52. Liberty has solely performed all of its obligations with respect to Plaintiffs' property under its Construction Contract with Gemcraft. 53. To the extent that it is proven that a separate contract existed by and between Plaintiffs and Liberty with respect to Plaintiffs' property, Liberty has fully performed all of its obligations under any agreement, written or oral, with Plaintiffs. 54. In the area where Plaintiffs expressed concern of lateral support problems, none of Plaintiffs' trees that have died, fallen down, nor moved as a result of the work on the adjacent site. 55. Upon information and belief, any work quote from Blacks' Landscaping to Plaintiffs is limited to or includes additional landscaping work above and beyond what had previously existed and is not related to alleged damage for which restoration is necessary. 56. Plaintiffs' claims are barred and/or limited by the doctrine of accord and satisfaction. 57. Plaintiffs' claims are barred and/or limited by the doctrine of estoppel. -12- 58. Plaintiffs' claims are barred and/or limited by the doctrine of laches. 59. Plaintiffs' claims are barred and/or limited by the doctrine of release and labor. 60. Plaintiffs' claims are barred and/or limited by the doctrine of spoliation of evidence. 61. Plaintiffs' claims are barred and/or limited by the doctrine of consent. WHEREFORE, Defendant Liberty Excavators, Inc. respectfully requests that this Honorable Court enter judgment in its favor and dismiss the Complaint of Plaintiffs. Respectfully submitted, & SCHELL, P.C. John W. Attorney ID # 69293 17 NortSecond Street, 12th Floor Harrisburg, PA 17101 (717) 731-1970 Dated: January 30, 2007 -13- JAN-26-2007 FRI 01:32 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 19 Cemcraft Homes Forest -900 51428 2205 Commerce Drive, Suite A. Forest Hill, MD 21050 VARIANCE PORCHME ORDER supple R .O. TO: ? t -b er' y ? x a7 . y A. -6 rs a oreft Me•na DOPL # VEN60P # ) a E C G V 943M NAME...... AWr TO OE BACK G-HARGED i aMOFIDE ED' 0MQMLpQ. BACKCHARAEVP?1F I Y' r ?•?, • p UTION F SUPEWWOR Q PHONEY) O FAXED { 0 VAND DEUVERED ACnVrrY 1 OMBERMSBORWFM ` ? SUMMON pVi'i?Al., Q 1?IAiLEd XJANTM , b 7i0M PBIC? AAIKX f (1:0'104_ k, Return T Land Depam, . TIME • k MATIERIA A NOT TO 1;iiXOM D 'Pr; C. e-) OA T - ?? oi'S?n ,' ox wwre as v?aw a MOM PASIDW to am ae Wma as wp"a 09SUMM a, " CKV4 N RLLIN U M90 to MAW ALPMMOWMM 34 is CH" TOM MARIANGE i{?AiA?I ? ?cNroa s ?roF 46 PEAEVC04W6WMM At aanpaeaa+wa UMWAI 42 lm1f 9f'S aw"M tAt0Ia .47 GNMWQnn 4)0F0R*MF:,-na+ 44 MR04DROMS is ato"ARGEROr?on 54 FOOi1aWUWM0MRW L 0 LACE GOIIC ssm . . &I CNN= a &LOSWAOR a 10SKM YGUffla iEit as WAMMrrMOM p m se 1fiEE f7 iiHlV-LOC/1110N ae'AOUnoraaNOpc??'r? . . 0 $=FLAP 1-7 APM41fAt'fOp pMrea JAN-26-2007 FRI 01;32 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 20 Site Development Contractor 4402 Geuysburg Road EXCAVATORS, INC. C=p M, PA 17011 717-7618461 Fax- 717-731-4634 Proposal Mr. rom s ameN PR6P0SJ L SL.I0mr D TO - - PHONE 41048348458 DATE F&mq 27,2W6 CUMO 111omes Fm di"M 70 _ STREET __ ...,. X$ NAME 2205 Con now Road Yellow Breaches Fans CITY, STS M AND ZIP CODE JOB LOCATION Forest HE MO 21050 Lower AWm Township. Cuo ibe%W County Melon En **oft kro We t ereby submit spedlcapons and esWnmtes for WOW BMedtes Farm scope of N nrk for the above r Omwaced pmjeck We props a to furnkd't aN Ndw, epuiprnent and material hammy b canplM the 10voing: See abd gad Price Proposal lwak Wm s spedal Pry Wer Prq ase hereby to famish mabriat jAd Mw - comp" Imacoordene a with #w move spedlawi-xm for the sum of ts461.355.os? >t'.tll[A a.11k1M,F??a tt,ne W- 2" No" t1+o dam?oo PoWarK D be made as Maw . ._ . 3-}?y? mo„xltd,xroswla.aad,?wi,?tdulElr?k? ._ _ -- - - --- Al mated jib gtrir nWW lobe ar sPsatied.' Ati w k U be =npMbd >n a warpna WM maratei aaxrdktg b s1 1, ' Prad cm Any alWWw or OvAdm from ice fir imrohNrtg soft costs wr be e>osaded Orly tq= WOW coders and va becarM:l an e>dm dimps soar and sbaro the estimate. AN a paid by h4,-, Wa a"nWd Can lion nft or d" bWW ax cao W. owner b esrty firs. tar= and G#w roes Warm= Our waiters am 6* am ??`---??^^---???"----- hismnc& - --- - EsOnoW Accel stance of proposal - The above P&m -vadlcarm and con mohd on oMW4 based on Ctls p WG=L ftnkn Date of WOW= D b O SignehAe and agwrWilay WMptad. OMINAL - SIGN & ftEt RN JAN-26-2007 FRI 01;33 PM OPERATIONS DEPT 02!27/200; 10:26 1.6029 YelloW Brecibe$ Fa= Rev 2 www Id'bera ? ?ccavaiors, 17]C. Biditem Des4tion FAX NO. 717 763 0922 P. 21 DID TOTALS Quantity' Units Unit Price Bid Toni 210 CYUM &GRUBBING 2.000 AC 6,100.00 12,200.00 215 BUILDING DEMO : 1.000 LS 21,000.00 21,000.00 221 CONSTMUC7170N ENTRANCE 1.000 EA 1,500.00 1,500.00 225 SEDIMS r BASIN ` 1.000 EA 6,800.00 6,800.00 227 SEDR&W TRAP 1.000 EA 2,400.00 2,400.00 229 ANTI-SEEP COLLARS 4.01 EA 625.00 2,500.00 230 TEB&ORARY RTSE* 2.000 BA 2,750.00 5,500.00 232 37S LINED SWALi± ' 249.000 LF 4.85 1,207.65 233 012512 SWAL 200.000 LF 7-10 1,420.00 240 30" mLT Fm4cE Wf>IE BACKS 1,552.060 IF 2.50 3,880.00 245 SUPIR SILT PENN 94.0011 LF 10.25 963.50 260 SEED AND MULCH I)ISTt11tBED AREA 44,835.001] SY 0.23 10,312.05 BdtS AND SUBTOTAL $69,683.20 300 STRYP/STOCK TOPSOIL PAN 9,930.00(;,. CY 210 18,753.00 310 C17T/FILT;PANS 20,184.00(:, CY 2.45 494450.'80 315 COMPAGTION nsbNG 1.000 IS 4,900.00 4,900.00- 320 RL'SPRFA'D TOPSOIL 4" THICtC 4,57$.000 CY 3.05 13,962.90 ECC.AVATION SUBTOTAL $87,066.70 400 C'ONNEC'Y' TO M4I ING SANI'T'ARY FA 2,000.00 2,000.00 402 SANITARY MANHQL'6S 9.00) EA 2,300.00 20,700.00 410 8" SDR35 11563.001) LF 30.00 46,890.00 420 6" SDR35 1,102.00) LF 28.00 30,856.00 435 LA ERA'L FITTINGS do STAIMS 25.000 EA 165.00 4,125.00 4 40 BYPASS PUMP LOt 12 SAM AYLY 1.0013 LS 1,500.00 1,500.00 . 450 RECoNN= LOT #12 LATERAL. 1.003 IS 700.00 700.00 . 480 PATCIT PAVEMENT 74.000 SY 115.00 2,760.00 A90 'rm SA'mTARY 1,563.009 LF' 130 85000 1 2,031490 . 850:00 1 495 MAINTAIN & MYWCT 4RAMC 1.000 is , , SANITARY SBVVER SUBTOTAL $113,412.90 500 CONNECT TO WMING STORM 1.000 EA 200.00 200.00 510 STORM 1NLHr 10.0(,4 EA 1,700.00 17,000.00 520 FLARM W M SECTION 6A(:0 ' EA 245.00 1,470.00 535 18" SHCpP 405.00} IF 3525 14,276.25 537 18" Cow PIPE 45000 Y3~ 4925 2,21625 540 18" CHIP 395.01'* LF 34.00 13,430.00 550 18" RCT' 5.04.b IF 160.00 800.00 560 y4" CMS 50.044. LF 41.75 2,08730 570 RIP RAP APRONS ' 70MV TN 41.00 2,87Q.00 1 ,IAN-26-2007 FRI 01:33 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 22 02127/20116 10:26 L,6029 Yellow Breeehes Farm Rev 2 4'** Libe ty Bxcavatms, Yno. BUD TOTALS Biditm Description QL=tit!, Units Unit Price Bid Total STORM SEWER SUBTOTAL $54,350.00 800 FINEGRADE ASPHALT PATH 120.000 SY 4.75 570.00 802 WAIJUNG PATH - STONE 8t ASPHALT 120.000 Sy. 34,06 4,080.00 810 FINEGRADB STREETS 5,410.001.1 SY 1.70 9,197.00 816 V 2A SUBBASE - STREETS 5,410.001.1 SY 5.55 30,025.50 820 3" BCBC 5,410.0011 SY 8.65 46,796.50 $30 1.5" WEARING 5,410:004.1 SY 5.30 28,673.00 832 ROADSIDE SWAM 2,520.00(1 IF 6.50 16,380,00 ONSrM PAVING/SWAIZ SUBTOTAL, 8135,72200 837 mtAMC CON ML FOR PADOT WORK LOW is 1,875.00 1,875.00 838 EgIRANCECURIVNMIAN 245.06.) LF 29.01 7,105.00 840 FMBMAM FAD47'I' PAVING 85.00) SY 3.2S 276.25 845 PADOT CURB 85.000 SY 41.50 3,527.50 860 TOPSOIL ISLAND 15-00). CY 16.00 240.00 ! PAUOT PAVM /CURB SUBTOTAL, , $13,02175 BASE BID TOTAL $473,258.55 900 CLEAN OUT BAS123'S 350.00i) CY 8.25 2,88740 905 DIMTRATION B15US 450.061) IF 18.50 8,325.00 908 oumu ' STRUCn).'Rm 2.000 iA. 2,875.00 5,750:00 910 RESTABILIZ3r BASINS s, wool) BY 0.23 1,334.00 ALTER14ATE SWM CONVERSION SUBTOTAL. 518,296.50 i Bid Total - -- > $491,555.05 "Note Items 1, italics arc Non-Additivts. 2 JAN-26-2007 FRI 01:33 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 23 SPECIAL PROVISIONS Yellow Breeches Farm Upon ae :eptance, please forward applicable financing information to our office, which can Include verification of the funding source o • the established line of credit for the project. This pro rosal has been prepared on the basis of material prices available to us e.n the date of the proposal and will remain firm up t) and including March 17, 2006. After March 17, 2006, we reserve the rillht to increase our price(s) at such time as the actcx I costs of material(s) increose(s). We hour ; used plans prepared by Mellott Engineering, Inc. The drawings are numbered and dated as follows for yellow Breeche; Farm: Sheet # Description Date Revised 1 of 8 Cover Sheet 03122104 0012MB '2 of 8 Existing Features & Demolition 03122104 07111/05 3 Of 8 Preliminary Subdivislon Plan 03/22104 09129105 .4 of a Gradil g & Utility 021=04 02101/06 5 of 8 Public Road'A&Ir Profiles 03=04 02101106 6 of 8 'Eoshbn Control Plan 03122104. 101205 70(8 E&S ind Construction Details 03J2M IW5105 a of 8 SanMy Sewer Detalls 03/22104 07111105 HOPI High*ay Occupancy Plan - Local Road 03/22104 WA HOP2 Highfty Occupancy Plan - Sanitary Sewer 03122104 WA Addffim a h(an ation ubTmA in the preparation of this proposal: CAD tiles prov;:ded by Mellott Engineering, Inc, to Liberty Excavat xs, Inc. . Scope-4 K Work: i 1. Tn a des" per plans. 2. Ins wiIfation and maintenance, or erosion control measures. Erosion cci*,ol measures to remain in place upon co npk*n or the work of this 4ontract and will become the responsibility, of 0is Owner and/or subsequerd contractors. 3. To xoq excavation is based oo a maximum depth of 8 inches. Topsoil exca ation in excess of 8 inches shag be co midered,unsuitable material -land treated as an extra to the contract. 4, To-rA replacement to a depth of 8' in se knent basin, trap, and at swrles; V) a depth of 1W at entrame Island. Topsoll re '?laoement to a depth of 4" M the remainder of the dlsprbed area to allow kw site stabilization. 5. Ss acing and mulching is, InckKIed for all areas whore Ilopspill has been replac*cl; as noted in Item 113. 6, . E;a1tnMork as' indicated on dralNrrrgs. Srie will be balanced to extent posdre, however any excess sal will.remain on 7. Sa glary system including lateruis 10' beyond street right-d-way. S. Ss nitary testing as required. by Lover Allen Township Sewer Authority. Connection to existing sanitary manhole at U burn ltd, wA abandonment. and-re-cannecport of existing lire from Lot 12 to new sanitary Doe. .. . 9. *S1 xm pips and siRiOWes on-it8 and extension to exdsthng at State Route 1.14. 10. Fa re grade, placement of stonie and biUfticus materials up to, and Including, wearing course for Willow Send !'toad ar d Birdrwood Line. 11. K re grade, piac;em4nit of stone and bkuminous materials for walkhng path to 13sburn Rd. 12. PI ,DOT entrance from State Route 114, per HOP plans. 13. Pl DOT curb at entrance from State Route 114, per HOP plans 14. DI mornion of four (4) a*dng OmcWres as indicated, including rommal of 0 debris from the site, footing removal and Ix dit of the area. Exdus ions: Any an I all 11ims not specifically mentioned in the above Scope of Work are oxcluded from this proposal. These items Include but are not limited to the following excluded items: 1. En sneering, tapping fees, bortds, permits, inspections and other fees (Peri0i y Township, Engineering and Utility). 2. Liq jidated damages. 3. Ba Tirades and pumping or de-watering. 4. Sh mfing, shoring and bracing for others. JAN-26-2007 FRI 01:34 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 24 5. Tes ing and retesting of blacktop and concrete. If awarded this project we would like to be copied on testing reports rela ed to our scope of work. , 6. Ber ;hmarks, property lines, buliding comers or monuments. 7, Cie; ;ning of roads muddled by others. 8. Win arization, snow and frost removal. 9. Indl ?!dual lot erosion and sediment control measures. 10. Rer;oval and mallntsnance of erosion control measures after our scope of work is completed. We Will no longer be resl onsible for erosion control oho we have demobilized. 11. Rpf air of any son erosion control measures damaged by other contractors, and any related fines. 12. Unc erdrain on site. 13. Wv land repairs or mitigation. M Sta is trench backtill above utilitK bedding. 15. Cot stn4on andlor maintenanaa of access roads for others. 16. Her thing, removal, wWor replacement of unsuitable, cuntamiruded, or toxic materials. 17. Uri ercut and/or replacement of unsuitable sots below planned sub-grade, 18. Hat ling lopsoil or excavated m4terials off4le. 18. Ref hovel of stones from WWI cr York raking. 20. Sig is or line painting. 21. Wo'k for utility pole removal and/or relocation. 22. Wo k for gas, abdK- falepWM, cable, or site lighting. 23, Cta r material far basin berm from an off-site source. 24. Cot Crete pipe anchors. 25. Rei novel. relocation, or protection of utilities or structures not shown, or in on-twily shown on oonlract vings/documents. dra m Pea nanent seedirxl, sodding, lakiscapinp, and r.4A amendments. 27. Prc action of all structures from the development of mold as a result of the wa* of our contract. 28. Sin We repair. 29. Ra :k excavation. (see unit prices below) 30. Sla ie protection. 31. LaN on restoration. 32. Ast Sates or hazardous material; removal. Owner wt11 be msporrslole for prwiding an asbestos survey prior to Stott of but ding demolition. Pricins Notes, Provisions a rrd'Clarificatbns: 1. Pun v to fthe start of any excavagbn, Liberty Excavators. Inc. SW verify existing topography. 2. All -xik excavation is moved once, either to fill area or to slodcpile. IF this matwW must be handled again, an additional ON rile VM apply. ` 3. An-r contract r6suMM from this *uotation must include a copy of this quofatian: and any modification thereto as an att; Mhment to said contract. 4. All rent to be completed In a vmftaniiko manner according to standard pm; door., i 5. Th s quotatbn is subject to charge based upon actual start of said prgect: 6. Art r arlterafiort or deviaitloth torn bpecitiahftm iwolving•ashitra costs will be exen,xtted only upon writer cifdm and wilt be mm an o*a dharge ever a?rd above the estimate. 7. Ov ner to on" fire, tornado arm other necessary insurance. Our workers are fully covered by Worlarren's Compensation ins arance. 8. Du : to the current volatile petroleum market, the price of petroleum based materials, such as asphalt, can only remain frrn h for 60 days. After 60 days,1-10ERTY EXCAVATORS, INC. reserves the r fight to make any necessary price a4 ist?mer* based on the asphalt Index at the time of instalk *m. Asphalt -is leased on a February 2008 Index of $2 Z.0p/lon. 9. Bit ing cycle and payment terms - billings twice monthly/payment net 30 days, 1.6% per month interest charge vrtu apply on past due invoices, no retain4ge withheld. 10. Oi: r construction schedule does not take into consideration adjustmentsfor d:!wnUme or (Map due to wwAher and/or o9 or circumstances beyond oui control. 11. In Ines where the design grads has less than %' per toot fall, we cgnnot guea-ant" that there will not be ponding of wta ter. 12. N t nsUbie conditions are encountered at arty subgrade elevation, there will bv. an additionml charge to undercut these an as and replace them with suitable material. 13. it c tone trench bacldill is required, the following additional charge win apply. j; 10.00 per ton. JAN-26-2007 FRI 01:34 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 25 14. 9 an ? rock is encountered, the following unit prices will apply. These unit p6::as will be billed for*rock that is drilled and ble tted in addition to the contract amount on page one_ `Rip )ed Bulk Rock Excavation Time & Materials Sim led Faulk Rock Excavation less than 300 cy Time-& Materials Blai ted Sulk Rock Excavation over 300 cy $30.00 per cy Rip )ad Trench Rock Excavation $40.00 per cy Bla.;ted Trench Rock Excavation less than 300 cy Time & Materials Sia ;ted Trench Rock Excavatioh over 300 cy $55.00 per cy Roe k Excavation with Hoe Reim - $225.00 per cy Rip ping Frozen Ground Time & Materials 'Ripped Bulk Rook Excavation in Shale: Equipment used to Rip-Shale and level cut area shall be billed at a Time & Material basis when required to mauttain production. Please note that the above roclr prices are contingent uport verification ii.hat the rock do ske is either shale or limesto te, if It is established prigr to rock removal that the rock is of an Iran stone or similar hard variety, view unit prices 1 411 be provided for your 4provat. 15. Ups i substantial completion, WBERTY EXCAVATORS, INC. VAN request that the owner accept all erosion control measures installed In working condition and release LIBERTY E XCAVAT(;RS, INC. from further responsibility as to add tional meataxee or maintenance Including removal and pond conversk:=, At such time, the owner shall also corr plate a Notice Of Tem*kgAon form to remove LIBERTY, EXCAVATORS, INC. from the NPDES penhriit Completion of tt a binder course will cons" substatrtiai completion: 16. Any additional costs Incurred f6r maNenance of US controls as a result of dsWys in excess-of 30 days, for which Ul:x rty Excavators, Inc. is not responstible, will be billed to the Owner on a Time & Material basis. This Includes, but is not united to, delays caused by permitting 99er%*8, wait by other contm*rs not hired by Liberty Excavators, Inc., and deli ys caused by agreements b.etween the Owner and other parties. Liberty Euoavatois, Im shelf Invoice for materials stoc kpled on site during the delay period. 17. 9 ai i US control' fails or beoomes damaged by weather, and the storm event exceeds the design criteria, or the control wa, of inadequate design, tape* of the control shall be performed on a Time F? Material basis. 18. Up( a substantial completion, "hing of the storm sewer is the responsibility ,0 the Owner. 19. If v siring course placement ii delayed by more'than two weeks after the base or binder ,come piacemerrt, then dw aft tack coat repair or kr ing the. base or binder course and wintertsplion of utility aftc ures will be at additional 20. We would like to provide the fogdwing snit prices for utilitytrendfirQ: ( iss/ is Combo Trench *th Dust $8 50JLF E Jeatric Trench with Dust $8.001LF ( gas Trench with Dust $8.751.F Conduit $225U 1 rardormadJund tin Box Pail $150.001EA Tt is pricing is for budgeting pu`poses only. Final quantities will be provided I.rpon receipt of the approved plans from the ut Ity companies. These prices exclude rock wdra ction. 21. All xi*V for excavation ki ibis:proposal aickides one time excavation only. Any re-excavetkm necessary due to ddiays in I iecement of the structures, utilities' by others. or due to sots cf God, willbe billed to the Owner on a Time & Material bas is. •22. Thy i above Wcops, exdoilons„ proviislbira, pricing, and aftadrmeMs are H ensitive and confidential information an I should only be'Amed byEthe addresses. LISER' Y EXCAVATORS, INC. resdroes the right to determine the source of all law and materials relative to any work they perlom under this ccntraat. If Oft quotation Is accepted. the work covered by the ,acme will be performed upon execusm and ck livery of a satisfactory coArad and as weather conditions and our wort; schedule permit. This. quotabon is for your accept m 15 days from date tiered We wh h to thank you for the opportunity of quoting and hope we may be of servitax to you. Very b my yours, 1SEh T?Y/EXCAV?ATORS, INC. Don L firkin Estim,;tor/Project Manager JAN-26-2007 FRI 01;35 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 26 CONSTRUCTION CONTRACT THY. CONSTRUCTION CONTRACT (this "Contract"), made this (tad day of March 2006, by and betty, .en DLM, LLC a Maryland Limited Liability Company, having its principal place of business at 2005 Com: nerve Road, Suite A, Forst Hill, Maryland. 21050 (hereinafter rtfwed to as "Owner") and liberty Exca tators, Ine., a PeunsyIvaWn corporation, having its principal place a f business at 4402 Gettysburg Road in Q mp HK PA 17011(here 4fler refer to as "Contractor"). WrrNESSETH That in consideration of the manual covenant hereinafter set forth,. the parties hereto mutually agree as fo lows: ARTICLE 1 Rd-Koons 1.1 As used in this' Contract and all documents incorporated herein by reference, 'the following terms shall have the following meanings: A. Owner: ' "Owner" shall mean the entity b%4-tabove designated as "Owner," its successors and assigns. Contractor aemowledges, that this Contract may be assigned by Owns to. ceder as security for a loan to Owr:;er and contractor agreos to ex=W such doh uwft as the Lender may reasonably reqAm consenting to such assigmunt and agr g to complete the work at the request o f the Lender. B. Qwnez'? Reatfiseulativa "Owner's Representatim" shall mean the person designated in writing from time to time by the Owner to act as its rive.- As of the date set forth above, the Owmces ItRMentative is bale Hevesy. Any change in the ownees Represeaudve shall be evidenced in '-Nriting by notice delivered to the Contt'ac#or as herein provide, C. Contractor. "Cortadae" shell mean the above-named party designated as "Contractor," its successors and assigns. D. mtractors: "SubcontradW shall mean those who directly coahmd with the Contractor to perform any part of the "Work" (as hereinafter defured), iuchtdiug those -who fwmish on-site labor, or on-site labor and z,atexials and those materials without fhmisb,689 on-site' labor. E. ToW Q mtrad MW_ "Total Contract Price" sh-Al mean Four Hundred Ninety One Thousand Five Hu Bred Fifty Five Dollats tqL'. 051100 ($491,S55.05), subject for. changes in the Work pursuant to Section X herein. F. Vomplbtion Dates: "Complebon Dates" shall mean those dates set forth in the Constriction Schedule attached hereto as P.xhibit C for completion of various phases of the Wo& rir,53 ?r?».kr-.?,M..rr ?xwaw...l3fMde..?L.ei?. Gr?SA? JAN-26-2007 FRI 01:35 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 27 G. ContractlDocuaments: The "Contract Documents" shall mean and refer collectively to: (i) This 0ontract, (ii) the construction plans and si-m itlcations for the Work approved by Lower Allen Township, (attached hereto, made a part hereof and marked fsx uNt A), Cost Breakdown Schedule (attached hereto., made a part hereof and marked Exbibit b), CoAStruatioa Schedule (attached here to, made a part hereof and marked (Exhibit iC , and the Schedule of Alternate Items i attached hereto, made a pact hereof and marked &Yabit 1)). H. Wotir: "Work" shall have the meaning ascribed to it in Section 3.1 of this Contract, I. IMectot: The term "Inspector" shall mean Ov Owner's Representative and the representative of any governmental body having?arisdiction over any of the Work. Misoeklaheous Teams: Except as otherwise ex?E ressly stated, herein, whenever the worlds "directed," "permitted," "ordered," "desipc.xed,° "prescn'bed,* or words of like import on used, it shall, be understood that the direction, req*=ents, permission, order, d signatioa or prescription of the Owner, or the Owner's RepreseaN ive is intended and, similarly, the words "approved, " ";roceptabW "satisfactory," or words of like import, shall mean approved by, or acceptable to, or satisfactory to, the gamer and to C`~nWxdaad County. K Jo Situ The "Job Site" shall mean the area on which the Work is to be performed and such other arils as may be designated by the Owner's Representative for aoeeiys thereto and for the storage of Coutractei 's materials and equipment. L. lAud_er..' The terms • l coder" me= any entity which may from time to time make a loan to Owner for the purpose of acquisition of tba,, land underlying the Job Site and/or the construction of the Work. ARTICLE Il Rom"SOms and W 2.1 Contractor hereby represents and warrants to Owner *9 Contractor. (a) is a Pennsylvania corporsdou which (i is qualified to do the work and experienced and skilled in coushuAion of the type descn'bed in the Contract Do=eats, (ii) is financially solvent and " remain so throughout this consh"on period, able to pay its, debts as they mature, and possessed of sufcieat working capital to complete its obligations under this Contract: and (iii) is able to furnish the tools, materials, supplies, equipment and labor iecessary for the performance of the Wor ---,* and (b) has mrdAy reviewed aU of the Contract Documents, the utility and public worlds agreements with Cumberland County applicable to Work and building kad construction codes, standards, rules and regulations of Cumberland County as are applicable to the Work, sad rpri JAN-26-2007 FRI 01:35 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 28 (o) has by oarefnl examination satisfied itself us to: (i) the surface condition of the land ar„d all structures and obstructions ou the Job Site, both natural and man-:made, and all surface and svbsuitwe waters and soil condition of the Job Site and the surrounding area; (i) the nature, location and character c>f the general area in which the Job Site is located its climatic conditia ns, available labor supply and labor cost and available equipment supply and equipment cost; (iii) the quality and quantity of all maaerials, supplies, tools, equipment, labor and professional services no; essay to complete the Work in the manner required by the Contract D-muments; (d) all materials and equipment furnished tm3er this Contract will be new unless oMemse specified, and that all Work will be of good quality, free from faults and defects and in coulzmazrce with the ( :C tract Documents. If required by the owneee Representative, Cumberland t: ty or the Lender's rep =wtative t$e Contractor shall fmanish satisfactory vo idence as to the kind and quality of ntiaterials and equipment. 22 Owner blareby rests and warrants to Con&,O :x that Owner: (a) 3s a Maryland limited liability company wl dch (i) is skilled and experienced in development of pmjeots similar to this project, and (ii) is financially solvent and shall remain so throughout the constnic ion period, able to pay its debts as *ey mature, and possessed of sufcie.:,t working capital to complete its dbligatious under this Agreement; and thol Contract Doomnits are complete Ord accurate and are safficleatt to consi:ruct the Work as outlined therein accordance with applicable laws, statutes, Wilding codes and regulations. ARTICLE Il_![ 'The Work, Time Qf rv-e R " Ed,Snbcontr dars 3.1 Contractor's undertaking, obligations and covenants in connection with the Work and the Job Site shall include the foAowing: 4.1.1 The ork The Contractor slta11.1:wvid* all materials, supplies, tools, equipment, labor and professional and nun-professional services, and shall perform all acts and supply all other things (including but sot limited to, all power, water and wannitary facilities for workmen during the progrm of the Work) necasse y to perform the Work described in tho Contract Documents, including; all work ewessly specified therein and such additional work as may reasonably be Moved there from, saving and excepting only such hears of work as are spedficaslly stated in the Contract Documents not to. be the obligation of the Contractor. The t= "Wont" is defined as mt= ng the totality of the obligations implied upon the Contractor by the preceding sentence and by all other 3 JAN-26-2007 FRI 01:36 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 29 provisions of the Contract Documents. The Contractor shall perform the Work according to the Contract Document in accordance with applicable laws, statutes, building ckles and regulations. 3.1.2 Sal-. By executing this Contract, ontractor acknowledges and aproes that the Job Site is a balanced &.1c with respect to soils, Wet or unsuitable soils necessitating, the irrkport or export of on-site or off-site soil, drying aerating or chemioa.ly treating the on-site soil shall performed by the Contractor and 611 costs associated with borrow and drying of soils during all phases of the Work shall be borate by the Owner per L?Nbit A. Any defc:cts or failures in utility trenches, building pads or roadway areas caused by improper construction techniques shall be the sole respormbiiity of Contractor and shall be repaired at Coutraotor's expense. 1.3 C2MIetion Date and Notice to R; oeeed. Contractor shall commence the 'W'ork promptly and within sewn (7) days after receipt fium Owner of a notice to proceed (and not belbre such notice) and shall complete the same as soon as good practice E!9d due diligence will permit, and in any event, not later than the (::ompledon Date sex forth in the Construction Schedule attached h ereto as Exhibit C, subject to the provisions of Section Vl herein. E' ach notice to proceed shall he given by Owner, if at all, after Owner at-iall have received or obtained all of the following; (i) final approval frc) m Cumberland County and all other governmental authorities of all drawings and specifications for the Work, (ii) all public works agreer mute and all easements required to complete the Work, (Hi) receipt of : nay and all required water and sewer permits from the State ]Health Dep.utment, and (iv) appmoved financing for the Woadc. in the event (>wru::r shall not have obtained items (i) through (iv) above this Contract sl?all be, null and void and neither panty shall have any rights or claims ap;.u= the other with the exception of any materials purchased and say cost for work performed by the contractor. 3.1,q &ujZMkLqR and PmjWNfLo-n l',meedtires. The Contractor shall supervise and direct the work, u:sWg the Contractor's beat skill and attention. The Contractor shall hcmc control over construction means, metbods, techniques, sequences and procedures mid for coordination all portions of the Work under the 0inlract, including coordinating of all the dudes of its subcontractors. 3.1,5 Subcontfactors. All Subcontractors shall be subject to the prior written approval of owner, which appmvEl shall not be unreasonably withheld prior to entering into any agreeammt with a subcontractor. Contractor shall submit to owner the nau,:e of such Subcontractor and such information with respect to the Sul. cmuactor as owner may reasonably request. JON-26-2007 FRI 01:36 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 30 3:16 Taxes. The Contractor small pay all sales, consumer, use and other similar taxes for the Work or portions thereof provided by the Contractor. 3;1.7 Notices. The Contractor shall give all notices and comply with all laws ordinances, rules, regulations and lawful orders of any pubHo authority bearing on the performance of the `r''J'ork, 3:1.8 Safety Precautions and ?,lpgra?g The Contractor shall be responsible for initiating, mainWnbg and M; ervising all safety precautions and provaras in connection with the Work. 11.9 SI(sly of P mv#g;, jd FMved'y. 3.1.9.1 The Contractor sU" take all reasonable precautions for the safety o4 and sh;W provide all-reasonable protection to prevent damage, ibljury or loss to: (a) all employow on the Work and all other persons who may be affected thereby; (b) all the Woik and all materials and equipment to be. incorporated therein, wtether in storage on or off the Job Site, under the car% custody or control of the Contractor or any Subcontractors; (c) other property at the siu: or adjacent thereto, including trees, shrubs, lawns, walks, pimements, roadways, structm-es and utilities not dcsignal ed for removal, relocation or replacement in the ooorto of construction; and (d) the work of the Owner ..nr others separate contractors. 3.1.9.2 The Contractor shall give all notices and comply with all applicable laws, ordinances, ruts, regulations and lawful orders of a;r,:y public a Aority bearing on the safety of persons or property or their protection from damage, Wary or kos. 3.1.9.3 'I'be Contactor sht:ll erect and maintain as required by existing conditions and the progress of the Work; all reasonable s&gui Ws for safety and protection, including posting danger signs and other warnings against hazards, gxromulydng safety regulations and notifying owners an,.i users of adjacent utilities. 3.1.9.1 When the use or storage of a pMves or other hazardous materials or equipment is necessary for the execution of the Work, the Contractor shall exercise the ' s I JAN-26-2007 FRI 01:36 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 31 utmost care and shall carry on such activities under the supervision of proper •ly qualified personnel. 3:1.10 WhU atrEwits. The Contractor from time to shall provide such information reports, test results, certificates and samples as may be required of the Contractor by the Contract Documents or Cumberland County, PA. 11,11 Cleani:ua Up. The Contractor shalt at all times keep the lob Site free from accumulation of waste materials or rubbish caused by the Contractor's operations. At the completion of the Work, the Contractor shall remove all of the Contractor's waste materials and rubbish from and about the property as well as al t the Contractors tools, construction equipment, machinery and surplus materials. If the Contractor fails to clean up at the completion of the 'Work, the Owner may do so and the cost thereof shall be charged to the Contractor. 3.2 (whew undertaldngs, obligations and covenants in comrectioa with the Work and the lob Site:shall include the following: 32.1 Permits. Tests. Few and Inspections. Unless otherwise provided in the Contract Documents, the Owner 6!1811 secure and pay for grading and building permits and for all -:ether permits, bowls, easements, governmental fees, licearses and hispections necessary for the proper execution and completion of the a'-xlc. 3.2.2 Qng s Repr„ er relive. All instructions of Owner to the Contractor shall be forwarded to the Qmtrac*or in writing tbraugh the owner or the Owner's Representative. 3.2.3 Ate. The Owner shall provide the Contractor and its S?ors, their employees nad agents, with unobstructed access to the lob Site. 3.2.4 3ta]reout, Owner shall have the Property c=ers and improvement locations staked by a registered I.sofessional laud surveyor and sha11 save and hold Contractor harm= from. and against, any liability regarding the acamicy of markers and designations. 32.5 Substituted Materials. In the cvizt specific] materials shall become unavailable, delayed or difficult to, obtain, Owner shall immediately select substitute material. 3.2.6 Trees and Vcg Owner Wees that contract shall not be responsible for loss of damage to any trees or vegetation *mad or destroyed during the course of performing the Work, except for vegetation and trees located- outside the limits of disturbance as shown on the oouu*a Drawirtg¢. 4 JAN-26-2007 FRI 01;37 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 32 3.7 Contract Documents. Owner warrants and represents that Contract Documents are sufficient to enable the Contractor to perform the Work in accordance with applicable hNs, statutes, building codes and regulations, that Owner has engaged a licensed professional to prepare the Contract Documents and that tlae same are accurate and sufficient for the Contractor to perform the W ork. 3:2.8 Hazardous Substages. Contra& r shall not be responsible for any, subsurface Hazardous Environmental conditions uncovered or revealed at the Job Site. The handling, storage and/or removal of subsurface hazardous or toxic materials =%)untered on site (other than those brought on site by the Contractor) are specifically excluded form this Agreement. Contractor shall immediately notify owner of the presence of /mown subsurface hazardous m; aerials for handling and/or removal by others at owner's expense. 1.2.9 Mock Blasting and Exeavatitm. All; rock blasting as may be reasonably required for the Work shall be tho sole responsibility and expense of the Owner. 7be excavation and Q:>--site relocation thereof shall be the sole response-bility and expense of .'le owner. 3E2.10 Exclusions. Owner shall be M.-Ionsible for all bonds, permits and inspection fees/stakeou4 layout, engi>nming or as built drawings !removal, relocation, adjt memt, bracing and/or supporting of overhead utr t esthmoval of buried or unf veseen debriskock blasting/wetland restoration or mitigation4m mamect stabilization/iandscaping/ and off site disposal of stoma-water manaimmeut pond sediment, all of which are excluded from the Contractor's Work under this Agreemeut. in the event Owner desires the COntraOUT to perform say of these excluded items, an appropriate cbmgeq order shall be agreed upon and executed between the parties in accordance with Article X, ARTICLE IV Comtaensxttion _MA LXXI tt 4.1 Total C•ontraet Price. Owner shall pay the Total Coatta,:a Pricey as such may be adjusted by change order, to the Contractor for the pmfmmaace of the Work. Contractor shall be entitled to be paid for Wo* (or a specified part tltd.+eof) 'which has progrenu d to a point where the Work (or a specified pant thereof) is substantially complete to be utilized far the purpose for which it is intended. Contractor shall be paid monthly for Work completed and in place and in accordance with the Cost Breakdown Schedule set f .111 in Exbibit B. attached hereto and made a part hooof 4.2 Method of Payment Owner shall retain Q°/. of each payment requested by Contractor as retainage, and'shall, vdthim thirty days of receipt by Owner of an itemized invoice for payment, pair tb the contractor the remaining jM/o in accmrdance with Bxhrbit C. Payment to the Contractor shall not be withheld or delayed because.: of delay, damages defects or other conditions caused by persons other than Contractor. 7 JAN-26-2007 FRI 01:37 PM OPERATIONS DEPT FAX NO. 717 763 0922 P, 33 4.3 Condition To Pa rat. The obligation of inspection by the owner to make any of the payments requirbd under this Contract shall be subject to any unsettled claims against the contractor. Any, overpayments to the Contractor shall, unless otherwise adjusted, be repaid to the Owner upon jdernand. 4.4 Final Inspccm on Upon receipt of written notice that the, Work is ready for final inspection and acceptance, the Inspectors shall promptly mare suclr inspection and determine whether the Work required by and under the Contract Dmunents has been fully performed. 4.5 Final Paymrmt. Vinal payment under this Agreement, incl Biding all retainages held by Owner, shall be, made upon; (a) Co4lcUoa of the Work by the Contractor; 11 ote: Completion of the Work shall be when asphalt sur&ce course is placed. If plaoement of asphalt surface is delayed, completion of work shall be upon pla+c:gment of asphalt base course. (b) Approval in accordance with Exbibit C, except in the event that the approval is not being issued because of damage, defects or cattier conditions caused by persons other than Contractor, (c) The ;Contractor executing upon final payrna3i a release of all claims and Has against the Owner or the Job Site arising under or by virtm of this Contract (d) The Contractor famishing written releases Wt waivers of all rights to claim or file liens property executed by any and all Subcou raators; (e) The Contractor has fuunislW satisfactory evidence that all Subcontractors have been paid in full; and ( The Contractor has furnished any goverrrni ental certifications or acceptances required by the Contract Documents. 4.6 auciu infnrbudon. 1U ContTacdor shall not be regw'-:7ed to begin the Work on the Project until such time! as owner provides Contrador with a copy of the f awing approval for the project from o*uefs lender: 4.7 Ownership of Work. Upon acquisition or production by the Contractor, title to all parts and materials acquired or produced by the Contractor for the performance of the Work shalt forthwith vest in the Owner. It is understood and agreed that property, title to which passes to the Owner solely by virtue of this Section 4.6 shall main at the Contractor, except to extent such property's covered by Owner's in auce carded pursuant to Section 11. 4.8 No Acocptance. It is mutually agreed &A na payment. made under this Coact shall be evidence of the performance by Contractor havander, Ether wholly or in part, and that no payment or vesting of title under Section 4S shall b.: construed to be an acceptance of defective or improper materials or workmanship. 4.9 Liens. As a c6ndition precedent to any payments under this Contract, the Contractor and all Subcontractors' shall furnish affidavits that no claims, B, as, or rights of any kind lie upon or ?r•12 ?,A,.?er?e19?..y...?'?..w.t?Fl?.rx..?..?.'?e?a.?,? x JAN-26-2007 FRI 01;38 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 34 have attached against the Work, or .materials, articles Dr equipment famished for or in connection with 'the Work. The Contractor agrees, and :dw payments descnW herein are contingent upon oe; express condition that no liens or right.3 in connection with the Work shall so lie or attach. In the event any liens or rights in connec6an with the Work shall remain after final payment tea this Contract, the Contractor shall repay to the Owner all expenses (including reasonable attorney's fees) iucaarred by' the Owner in discharging such liens or rights in rein. '1' a Contractor shall indemnify and hold l :anuless the Owner and the bender against any asseition of claims for mechanic's liens by Sub cwntractor or material suppliers and against any assdrrtion of security interests by supphas of goods or materials in connection with the Work Arad shall cause any such lien filed agakist the Job Site to be dismissed or bonded (with a surety acceptable to Owner and Lender) within five (5) days of the filing thereof. 4.10 No Waives Inskeotion by the Owner's Representative; any order, measurement, or certificate by the Owner's Representative; any order by the Owner for the payment of money; acceptance of any work or aay extension of time; or any possession bkenn by the Owner shall not operate as a waiver of airy provision of the Contract Documents c.r any power therein reserved to the Owner, or any night to damages therein. provided. Any waiver by Owner of any breach of the Contract Doa jemts shall not be held to be a waiver of ,aay other or subsequent breach, and any waiver by Owner of say right to taminate this Contrad shall not be held to be a waiver of any breach of ft Contract Documents, but Owner retains all its rigbts to recover damages. ARTICLE V Default 5.1 Onga ?? Default by Contractor. If the Contractor should. be adjudged a bankrupt, or make a general asslgament for the benefit of creditors, or if a receiver should be appointed on account of the C.oritractoes insolvency, or if the contractor Aculd refuse or fad, or be tenable for any reason, to supply enough properly skilled workmen or proper materials, or if he should fail, or be unable for arty reason, to make prompt payment to Sub:=butors for materials or labor, or disregard laws, ordinances or the iustrr ckon of the Inspectors, or if be is unable to complete the Work in strict accordance with the Construction Schedule:; attwhad hereto as Ejh'A 8. or otherwise be, guilty of a violation of any provision of the Carftvsct Doctua is (a Mehult"), then the Owner may, without prejudice to any other right or r=ody, and after giving the Contractor fifteen (15) days written notice, in which Coubmedor has the :right to cure the Default, suspend the work anWor.tamirrate this AgreeaeaL The remedy provider; by this Section 5.1 is in addition to and not in limitation of any other rights or remedies availabli: to the Owner. Notwithstanding the above provisions, the Contractor shall be liable to the Owou for any breach of this Coahad by Contractor, its agents, employees ad subcontractors that muse mJury or damage to Owner, inchrding reasonOle attomeYs fees: 5.2 pogtradgf sMtts on Default by Owner. If the Owner should be adjudged a baulrupt, or make a general assigamamt for the benefit of cncedikK% or it a receiver or trustee should be appointed on account of the Owner's insolvency, or if the Owner should refuse or fail, or be unable for any reason, to make psompt payment to Contractor as required by this Contract or otherwise be guilty of a violation of any provision of the Contract Document,!, (a "Default'), then the Contractor may, without prejudice to any other right or remedy, and afb.r giving the Owner fifteen (15) days written notice, i* which Owner has the right to cure the: Default, auapeand the work and/or terminate this Agreement. 'the remedy provided by this Set scion 5.2 is in addition to and not in 9 SRN-26-2UN FRI 0138 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 35 limitation of any outer rights or remedies available to the Contractor. Notwithstanding the above provisions, the owner shall be liable to Contractor for any bt each of this Contract by owner, its agents, employees and the Owner's other contractors and thtar subcontractors that causes injury or damage to Contrbctor, including reasonable attorney's fee.... ARTICLE VI belays and Extenslons The time during which tractor is delayed in the performance -:3f the Work by the acts of omission or a mmission of the Owner, Or of the employees or agents of the Owner, or by the acts of God, or abnoniW climm aia conditions, which the,, Contractor could not reasonably foresee: or provide against, or other causes beyo ad the Contractor"s control, shall be added to the time of completiot L of the Work as set frnth in Section 3.1.2 heseoA provided that tW. Contractor shall not be entitled to any em-tension, of time for delays resulting from any such causes, unlessi it shall have notified the Owner in writing within ten (10) days after the com nencement of each such cause or the occurrence thaeot and of th o probable duration thereof. Owner and 3ontractor shall ascertain the facts and the extent of the delay and Owner shall then extend the time for com; )leling the Work when ft fact's justify such an extension. The Ca: ntractor shall not be entitled to and here q waives any and all Damages which it may suffer by reason of delay to the Contractor in the peri:, irm8slce of the Work, or apy portion thereof by any of the aforesaid e=vents, ft extension of time granted here n being ContmcWs sole reme dy. The Contractor shall not be HaUe for any damages which, were not direr dy caused by his arts aD&or omissions. ARTICLE VII Time Schedule 7.1 Prior to the conwnenc neat of any portion of the Work, Cat director and Owner shall agree upon a Construction Se tedule (which shall be attached hereto, m i de a part hereof and marked Exhibit LB) showing the various phases of the Work with dates of complation of each such phases A Notice to Proceed shall be issued for each phase of the 'Fork set fartb one the Construction Schedule. Such schedule shall be supplemented or amender: from time to time as circwnstmnees may require, provided, however, that the Completion Date imll not be c tended except pursuant to Article VI hereof. Such schedule, and any suppeemetes. or amendments thereo shall be subject to the M-4oval of the Owner's Repmsentative. 7.2 Unless otbeawiw ? notified by Owner in writing the Coatractor shrill carry on the Work and maintain its progress im accordance with the Construction Schedule attached hereto as Exhibit B, even if the Contractor is in default of any of the Contract Docu ma* for any other portion or phase of the Work. All notices or oomm> raicxttions to the respective parties shall be in writing and delivered to the Contractor or the Owner, as the case may be, addressed as follow s: If to Owner: BALM, LLC :2005 Commerce Road Suite A Torest Hill MD 21050 'Attn: Dale Hevesy, Vice President rc 30 AN-26-2UN FRI 0138 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 36 If to Contractor. Liberty Excavators, Inc. 4402 Crettj+sburg Road. Ca"p Hill, PA-17011 Attn: Don Lw in, Project Manager ARTICLE IX Entrteerius Reagort ibility Owner shall be solely rbsponsibie for fturlishing to Contractor all necessary and required engineering and s nkcout work m order for Contractor to complete the Work here ndtx. ARTICLE X Q ngeJa the W2LIU Claims for Additional Coat 10.1 Changes in the *ork by Owner. The Owner, without it validating this Contract may order c,Imps in the Work within the general scope of the Contnzt consisting of additions, deletions or other - cevisioiI the Total Contract Price and the Completion Dates being adjusted accordingly. Ali. such changes in the Work shall be sufficrized by dmp order wu=ted by Owner and Contaiaator and shall be perfooned wWcr the applicable conditions of the Contract Documents. 10.2 Alt=aft Iterna. Alternate Items shall be performed by the: Contractor if and when required on the teams and conditions shown on the attached bxbibit A. . ARTICLE a Insurance and 1&&M&1tfcatk w 11.1 Contr is I.iabiht bsuraace. 11.1.1 no contractor shall purcUm and maintain insurance for protection from the claims sot f dh below which vise out of or result fi+am the C,ontractes operations =der this Conttw*, whether such operations be by the Contractor or by any Subcontractor, or by anyone 4fi dhy or inftoctly employed by any of them, or by anyone for whose acts any of them may be liable: a. claiw under workers' or wor mwWs compensation disability beaefit and other similar employee benefit acts; b. claims for damages because of bodily injury; occupational sidmess or disease; or death of the Cortttxct es amphoyees; c. comprehensive general liability, and damage [asumaae having a o mbiuW limit of not less than $2,000,000.00; d. claims for damages because of bodily injury or death of any pexson or property damage arising out of the ownership maintent=4 or use of any motor vehicle. Il JAN-26-2007 FRI 01:39 Phi OPERATIONS DEPT FAX NO. 717 763 0922 P. 37 11. 1.2 The insuimce required by Subparagraph 11.1.1 A all be written for not less than the limits specified above or required by law, whicheviv is greater. 11.13 The insutance required by Subparagraph 11.1.1 shall include contractual liability insurance applicable-to the Contractor's obligation i,mder Section 11.8 11.1.4 Certificates of insurance or, if required by Owner, policies of insurance acceptable to the Owner shall be submitted to Owner's Represeatative for transmittal to the Owner prior to ? mpmeacemevt of the Work. These cc, ificates or policies shall contain a provision that coverage afforded under the policia..: will not be cancelled until at least thirty (30) days prior written notice has been givers to the Owner. 11. 1.5 All ins mice, carried by Contractor shall name Owner and any Tender of Owner as additional insureds, as their interests may appear. 11.2 Owner's Liabili The owner shall be respon6!31c for purchasing and maintaining Owner's liability insurance and, at the Owner's option, mazy purebase and maintain additional insurance for protbetion againg claims which may arise fm n operations under this Contract. 11.3 Property Insvr?nae. The Owner shall pvr6hm ash mainta m builder's risk imnvac:e upon the entire Work at the Job Site. This insurance shall include the; interests of the Owner, the Lender, the Contractor and Subcontractors in the Work. 11.4 Proof of Lza & Proof of such insurance shall be 1z.)vided to Contractor, by Owner as needed. 11.5 Waiver of Submi6tion. The Owner and the Contractor weive all rights agafist (1) each other and the Subcontr ctors, agents and employees of each other; and (2) the OwaWs Representative and apparate coubuctors, if any, and their subcont ada:rs, sub-subcontradoM agents and employees, for damages caused by fire or other perils it!) the extent covered by insurance obtained pursuant to this Pmgrgh I I or arty outer propert y tamnance applicable to the Work, except such rights as they merry Dave to the proceeds of sca.ch kmance held by the Owner as huattee, buds waiver being conditioned upon the inch-a of a Provision in the policy or policies of msmmm providing that any such waiver sl:W not otherwise effect inswed's coverage under siuch policy or prejudice any rights of the insiu+ed to recover sec The Owner or the : Contractor, as appropriate shall requ ire of any separate eontrac tm, Subcontractors And sub-subcontractors by appropriate i- greameuts, written where legally required for validity, similarly waivers each in favor of all, other parties enumerated in this Subparagraph 11:5. 11.6 Adiustmeat of Um. The Owner shall have power to adjust and settle any loss with the insurers unless one of the parties in int«w shall object, in writing ivitbiu five days after the occaureace of loss to the Owner's exercise of this power. 11.7 Undees liM*ements._ Owner and Contractor acimowlex:lge that the insurance requirements set forth in this Contract and in the Contract Moments may be required to be varied by the Lewder or by Owner's insurance carder, and Contm.:tor agrees to enter into suitable modifications of the provisions Hereof upon the request of the Owner, provided Owner beats any additional cost occasioned. thereby. ztz im JAN-26-2007 FRI 01;39 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 38 11.8 M&ation 11.8,1 To the fullest extent permitted by law, the Ca atractor shall indemnify and hold hamalW the Owner, the Owner's Represaitatativaon and their agents and employees from and against all claims, damages, losses and e::cpenses, including but not limited to reasonable attorney's .fees, arising out of or resi:dting from the performance of the Work ptovided that any such claim, damage, kois or expense (1) is attributable to bodily itnjury, siclmess,. disease or death, or to injury to or destruction of tangible property (other than the work itself), including the loss of use resulting therefrrnn, and (2) is caiused in whole or in part by any negligee t act or omission of the Contractor, and Subbontractor, anyone directly or indirectly cimployed by any of them,, or anyone for whole acts any of them may be liable.. Such obligation shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any patty or person dcmribed in this paragraph 11.8.1. 11.8.2 In any aid all claims against the Owner, the Ow!aer's Representative or any of their agents or employees by any employee of the Coatractor, any Subcontractor, anyone directly nor indirectly employed by any of them or anyone for whose acts any of them may be liable, the irtde cation obligation Wn -,:r this Paragraph 11.8.2 shall not be limited in any way by any limitation on the amount or type of damages, compemsation or bene4ta payable by or for the Contractor of aay Subcontractor under workers' or work=4's compensation acts, disability benefit 2tc!ts or other employee benefit acts. ARTICLE XU Defedivc Works Coast neter's Waamty 12.1 11`tiW&A Work. The Conhactor shall promptly correct all Work rejected by the Inspectors as defective or as failing to oonforru to the Coutract Documew:t whether obset ved before or after sabstantial completion of the Work and whether or not fabrixmted, installed or completed. The Contractor 81ta11 bear sill costs of correcting such rejected work -and such oosts shaA not be a cost of the Work. 12.2 Contractor's Wamnty If within we (1) year after the date: of completion of the work as stated in "do 4.5 (Commpkdon of Work), the Work is fouW to be defective by the lyuginee r or approving goy gmrnental authorities, the C04t1W r shOU promptly, after notice fiom and without cost to Owner, correct such defective Work, except that the Contractor shall not be rosponsi'b1e for deEccts or damages cattsod by others. TJ;c s obligation ill survive both fwal payment and termination of this Contrail 123 Owner's right to; Corm-d. If Contractor does not prooeed with the correction of such defective or nonconffonning Work within seven (7) days after a request to do so, the Owner luny make m h correction $nd may remove it and may store the materials at the expense of the Contrwtor. If the Contractor does not pay the cost of such removal and storage Witbin seven days therrafter, the Owner may, upon seven additional days written noticq sell such materials at suc ton or at private sale and shall account for the net proaoeds thereof; after deducting aA the cis which the Contractor should have borne, the differmioe shall be charged to the Contractor and an appropriate change order shall be bsued. If the payments then or thecceft due the P JAN-26-2007 FRI 01;40 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 39 Contractor are not ,'sufficient to cover such amount the Contractor shall pay the differeace to the owner. ARM LE M j Miscellaneous 13.1 Intenn tatigi of QgntrrOct Documents. The Contract Documents shall be construed and interpreted i* accordance with the laws of the State of Pennsylvania. If anything in the Contract Documents is found to be inconsistent or in wn lict with any other provision in such docu ni ats, this Contract shalt take precedent over all other documents. 13.2 imp of Essdnce. Time shall be considered of the esmnce of this Contract. i 13.3 Hea&u& The headings of the paragraphs are for co avenience only and shall not affect the memino or intapetations of the contents thereof: i 13.4 t if any provision of this Contrail shall be held violative of say applicable law or unenforceable far any reason, the invalidirr or unenforceability of any such provisions shall not invalidate or under uneufofceabl-e any other provision hereof; which shall remain: in full force and effect. 13.5 Caoperatiorn and Timeliness. The pasties shall dilit ently work to cause all conditions precedent td the Obligations contemplated by this Agimment to be met hi a timely manner and where noewam to cooparate with each other iu grader to effectuate the aforesaid. 13.ti Binding Effect. The terms and conditions of this coi r Tact shaA inure to the benefit of and triad the successors and assigns of the parties hereto. 13.7 Cocaplete tlkment. This Contract represents the enmplete undewtandsng between the patties hereto and sgwsedes all prior aagotiatkms, representations or Mgreemeats, whether written or oral, as to matters deml)ed hereon. This contract may be amended only by written instrument signed by both patties. No requirements, obhgadons, remedy or provision of this contract shall _be deemed to buVe baea waived, unless so waived expressly m- writing and any such waiver of any such provision shall not be considered a waiver of any right to enforce such provision themAtc i ; 13.8 Ofigiinal and Co?tarparts. This agreement may be signed in one or more counterparts, each of which shall be deemed to be an original w9 all of which together shall constitute one and thetsame inshument. I JAN-26-2007 FRI 01:40 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 40 IN VVITNESS WHOE01F, the parties hereto have executed this Contract as of the day and year first above written. ATTEST: BY: DLIvi, LLC(SEAL) ATTEST: BY": Liberty Excavato . Ine.(S?AL) 3 l ' I i5 1 Owner . Nme: Titia:,- Poo i Conlraotor / lk Title: ' e 5• VERIFICATION 1, Don Larkin, Liberty Excavators, Inc., do hereby swear and affirm that the facts and mE tters set forth in the Answer, New Matter atxk? of Defendant Liberty Excavators, Jul. to Plaintiffs' Complaint are true and correct to the best of my knowledge, information and be: ief. The undersigned understands that the statements made therein are made subject to the pe: ialties of 18 Pa. C.S. §4904 relating to unworn falsification to E;.uthorities. In addition, I also do hereby swear and affirm that I am a duly authorized representative of Defendant and am authorized to execute this Verification. Don Larkin Liberty Excavators, Inc. As te: JanuaryZ&t 2007 CERTIFICATE OF SERVICE 1, John W. Dornberger, Esquire, of Post & Schell, P.C., hereby certify that I am this day serving a true and correct copy of the foregoing Answer and New Matter of Defendant Liberty Excavators, Inc. to Plaintiffs' Complaint upon the persons and in the manner set forth below: Via E-mail/First Class Mail David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Plaintiffs, Jeffrey & Barbara Hawkins JoAnne E. Kinzel, Esquire Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Counsel for Defendant, Gemcraft Homes, Inc. POST & SCHELL, P.C. 4John.ornber squire Dated: January 30, 2007 CERTIFICATE OF SERVICE I, John W. Dornberger, Esquire, of Post & Schell, P.C., hereby certify that I am this day serving a true and correct copy of the foregoing Answer and New Matter of Defendant Liberty Excavators, Inc. to Plaintiffs' Complaint upon the persons and in the manner set forth below: Via E-mail/First Class Mail David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Counsel for Plaintiffs, Jeffrey & Barbara Hawkins JoAnne E. Kinzel, Esquire Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Counsel for Defendant, Gemcraft Homes, Inc. POST & SCHELL, P.C. John . D ated: January 30, 2007 AJ L7; iTl 4'T 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, lCase No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants ?URY TRIAL DEMANDED OTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth the following pages, you must take action within twenty (20) days after this Answer with New Mat and New Matter Under Rule 2252(d) to Complaint and Notice are served by entering a writ appearance personally or by attorney and filing in writing with the court your defenses or objections the claims set forth against you. You are warned that if you fail to do so, the case may proceed with you, and a judgment may be entered against you by the court without further notice for any mor claimed in the Answer with New Matter and New Matter Under Rule 2252(d) to Complaint or for a other claim or relief requested by the Plaintiff. You may lose money or property or other rig important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUN'T'Y Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, icase No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants 1JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND NEW MATTER UNDER RULE 2252(D) OF DEFENDANT, GEMCRAFT HOMES, INC. TO PLAINTIFFS' COMPLAINT AND NOW comes the Defendant, Gemcraft Homes, Inc., by its attorney, JoAnne E. Kinzel, Esquire, and sets forth the following Answer to the Plaintiffs' Complaint: 1. - 2. Paragraphs 1 and 2 of the Complaint are admitted. 3. Paragraph 3 of the Complaint is directed to another Defendant. Therefore, no response is required of this Defendant. 4. The allegations in paragraph 4 of the Complaint are admitted in part and denied in part. It is admitted that Gemcraft owns and is presently developing the property that abuts the property owned by the Plaintiffs. The remaining allegations in paragraph 4 of the Complaint are denied as stated. On the contrary, at the time Gemcraft signed the purchase agreement, the property contained a barn that was slated for destruction per township requirements. Before Gemcraft closed on the property, the owner allowed a company called Barn Savers to dismantle the barn. Barn Savers dismantled most of the barn, but left one wall standing. 5.- 8. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 5 through 8 of the Complaint. Therefore, they are denied and strict proof is demanded. By way of further Answer, Gemcraft was not the owner of the property at the times referenced in paragraphs 5 through 8 of the Complaint. 9.-11. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 9 through 11 of the Complaint. Therefore, they are denied and strict proof is demanded. To the extent that a further response is deemed necessary, said allegations are denied generally pursuant to Pa.R.C.P. §1029(e). 12. The allegations in paragraph 12 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. 13. The allegations in paragraph 13 of the Complaint concern a written report whi, speaks for itself. By way of further answer, the reports reference to Gemcraft as the owner of the property is in error. On the contrary, Gemcraft was not the owner of the property at the time the report was issued. 14. The allegations in paragraph 14 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 15. The allegations in paragraph 15 of the Complaint are admitted to the extent that Liberty Excavators contracted with BWB Demolition Company to remove the brick wall. 16. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 16 of the Complaint. Therefore, they are denied and strict proof is demanded. 17. - 21. Paragraphs 17 through 21 of the Complaint are directed to another party. Therefore, no response is required from this Defendant. To the extent that a response is deemed necessary, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 17 through 21. Therefore, they are denied and strict proof is demanded. 22. - 23. The allegations in paragraph 22 and 23 are denied generally pursuant to Pa.R.C.P. §1029(e). 24. In response to the allegations in paragraph 24 of the Complaint regarding a written agreement between Plaintiffs and Defendant Liberty, Gemcraft avers that the document speaks for itself. The remaining allegations in paragraph 24 of the Complaint are denied generally to Pa.R.C.P. § 1029(e). 25. The allegations in paragraph 25 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 26. The allegations in paragraph 26 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. To the extent that a response is deemed necessary, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 26 of the Complaint. Therefore, they are denied and strict proof is demanded. 27. The allegations in paragraph 27 of the Complaint are admitted to the extent that Plaintiff sent a letter to Gemcraft and that a copy of said letter was attached to the Complaint as Exhibit 3. The remaining allegations in paragraph 27 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 28. The allegations in paragraph 28 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 29. The allegations in paragraph 29 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. To the extent that a response is deemed necessary, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 29 of the Complaint. Therefore, they are denied and strict proof is demanded. 30. To the extent the allegations in paragraph 30 of the Complaint are directed to Gemcraft, they are denied generally pursuant to Pa.R.C.P. § 1029(e). 31. Paragraph 31 of the Complaint is admitted to the extent that Plaintiff filed a district justice Complaint. The remaining allegations in paragraph 31 are denied generally pursuant to Pa.R.C.P. §1029(e). 32. The allegations in paragraph 32 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 33. The allegations in paragraph 33 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are denied. 34. The allegations in paragraph 34 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are denied. On the contrary, Liberty Excavators was at all times relevant hereto an independent contractor and not an agent of this Defendant. 35. The allegations in paragraph 35 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are specifically and generally denied. COUNTI 36. In response to paragraph 36 of the Complaint, Defendant incorporates herein by reference paragraphs 1 through 35 above as though set forth at length. 37. The allegations in paragraph 37 of the Complaint are specifically and generally denied. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. COUNT II 36 -37. [sic] Paragraphs 36 and 37 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. COUNT III 38. In response to paragraph 38 of the Complaint, Defendant incorporates herein by reference paragraphs 1 through 35 above as though set forth at length. 39. -40. The allegations in paragraphs 39 and 40 of the Complaint are specifically denied. On the contrary, there was no contract between the Plaintiffs and Gemcraft concerning any of the matters set forth in the Complaint. Therefore, no cause of action exists for breach of contract between the Plaintiffs and this Defendant. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. COUNT IV 41.- 43. Paragraphs 41 through 43 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. NEW MATTER 44. Plaintiffs' Complaint fails to state a cause of action against Gemcraft for of contract. 45. Any injuries or damages allegedly suffered by the Plaintiffs were the result of their failure to take precautions to protect their property from a perceived danger which partially existed on their own property. 46. Any injuries or damages allegedly suffered by the Plaintiffs were the result of their failure to object to the partial dismantling of the barn by the owner of the property, Keith Peiffer, or by Barn Savers, who created and permitted the dangerous condition set forth in the Complaint to exist. 47. Any injuries or damages allegedly suffered by the Plaintiffs were the result of the negligence of the property owner, Keith Peiffer, in permitting Barn Savers to partially dismantle the barn and create the dangerous condition set forth in the Plaintiffs' Complaint. 48. Any injuries or damages allegedly suffered by the Plaintiffs were the result of the negligence of Barn Savers in partially dismantling the barn and creating the dangerous condition set forth in the Plaintiffs' Complaint. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. Respectfully submitted, LAW OFFICE OF SNYDER & DORER By: JoAnne Kinzel, Esquire Identificy ion No. 55453 Attorney for Defendant, Gemcraft Homes, Inc. Date: February 8, 2007 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants TION I, Tom Scannell, Gemcraft Homes, Inc. , verify that the statements made in tl foregoing Answer with New Matter and New Matter Under Rule 2252(4) of Defendant,Geffic: Homes. Into plaintiffs, Complaint, which are within the personal knowledge of tl undersigned, are true and correct, and as to the facts based on the information of others, tt undersigned, after diligent inquiry, believe them to be true. And further, this Verification signed on the recommendation of my attorneys, who advise me that the allegations ar language in this document are required legally to raise issues for resolution at trial, by tl Court, or by continuing investigation and preparation for trial. I understand that some of the., allegations may prove inappropriate after investigation and trial preparation are complete and leave the determination of these matters to my attorneys on their advice. I understand that all statements herein are made subject to the penalties of 18 Pa. C. S. A. §4904, relating to unsworn falsifications to authorities. Dated: t'e L rua ry y, ae o 7 TRIAL DEMANDED f; Tom Scannell, Gemcraft Homes, Inc. t :L?p? 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, r ase No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., RY TRIAL DEMANDED Defendants TE OF JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Answer with New Matter and New Matter Under Rule 2252(d) of Defendant, Gemcraft Homes, Inc., to Plaintiffs' Complaint to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto 10 East High Street Carlisle, PA 17013 John W. Domberger, Esquire Post & Schell 17 North 2nd Street 12th Floor Harrisburg, PA 17101 Date: February 8, 2007 JoAnne E. mzel, Esquire Attorney Mr Defendant, Gemcraft Homes, Inc. Q "°u i5 i - ?i a ' v 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA I Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., URY TRIAL DEMANDED Defendants PRAECIPE TO JOIN ADDITIONAL DEFENDANTS I TO THE PROTHONOTARY: Please issue a Writ to Join Additional Defendants in the above referenced matter. The Additional Defendants are as follows: 1. The Barn Saver, 1209 Reading Road, Navron, PA 17555 2. BWB, Inc., 400 Adams Street, Steelton, PA 17113 3. Keith E. Peifer, 34 West Beale Avenue, Enola, PA 17025 Respectfully submitted, LA. FFICE OF SNYDER & DORER By 6Anne E. Kinzel, Esquire Identification No. 55453 Attorney for Defendant, Gemcraft Homes, Inc. Date: February 9, 2007 • 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Y TRIAL DEMANDED Defendants .TE OF JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Praecipe to Join Additional Defendants to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto 10 East High Street Carlisle, PA 17013 John W. Dornberger, Esquire Post & Schell 17 North 2nd Street 12th Floor Harrisburg, PA 17101 Date: February 9, 2007 18 'Anne E. Kinzel, Esquire Attorney for Defendant, Gemcraft Homes, Inc. C 'crLr, v - m n VD M -? as ro WRIT TO JOIN ADDITIONAL DEFENDANT Cumberland County, ss: The Commonwealth of Pennsylvania to THE BARN SAVER, 1209 READING ROAD, NAVRON, PA 17555 -- BWB, INC., 400 ADAMS STREET, STEELTON, PA 17113 -- KEITH E. PEIFER, 34 WEST BEALE AVENUE, ENOLA, PA 17025 You are notified that GEMCRAFT HOMES, INC., has joined you as an additional defendant in this action, which you are required to defend. Date: FEBRUARY 13, 2007 Cu is R. Lon otho tary By: Deputy (Seal) No. 06-6422 Civil Term JEFFREY & BARBARA HAWKINS vs GEMCRAFT HOMES, INC. AND LIBERTY EXCAVATORS, INC. Defendant THE BARN SAVER 1209 READING ROAD NAVRON, PA 17555 BWB, INC. 400 ADAMS STREET STEELTON, PA 17113 KEITH E. PEIFER 34 WEST BEALE AVENUE ENOLA, PA 17025 Additional Defendant WRIT TO JOINED AN ADDITIONAL DEFENDANT JOANNE E. KINZEL, ESQUIRE LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 717-731-0988 I.D. # 55453 Attorney for Defendant F: \FUES\DATAFILE\General\C urrent\ 12262\ 12262.1. rep 1 \tde Created: 12129/03 8:24AM Revised: 5/ 1 /07 11:45AM 12262.1 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS OF Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA V. lo4aa NO. 06-942-2-- CIVIL ACTION-LAW GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., Defendants JURY OF TWELVE DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT LIBERTY EXCAVATORS, INC. AND NOW, comes the Plaintiffs, Jeffrey and Barbara Hawkins, by and through their counsel, MARTSON LAW OFFICES, and avers the following in response to the New Matter of Defendant Liberty Excavators, Inc.: Having reasserted and restated the allegations of the Complaint as if fully set forth herein: 44. Denied. The averments of Paragraph 44 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 45. Denied. The transaction referenced in Paragraph 44, namely a contract between Liberty and Gemcraft, is a transaction in which the answering parties are not individually involved. To the extent a response is possible, the contract attached as Exhibit "A," to Defendant Liberty Excavators, Inc.'s Answer With New Matter being an instrument in writing, if valid, speaks for itself. 46. Denied. Upon reasonable investigation, the responding parties are without knowledge sufficient to form a belief as to the truth of the averments of Paragraph 46, which are denied with strict proof thereof demanded at trial. 47. Denied. Upon reasonable investigation, the responding parties are without knowledge sufficient to form a belief as to the truth of the averments of Paragraph 46, which are denied with strict proof thereof demanded at trial. 48. Denied. The averments of Paragraph 48 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 49. Denied. The averments of Paragraph 49 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, representatives of Liberty appeared on Plaintiffs' property and conducted discussions with Plaintiffs and gave the impression that they were authorized and were agents of Gemcrafl and Liberty. 50-53. Denied. The averments of Paragraphs 50-53 of Defendant Liberty's New Matter are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. 54. Denied. Paragraph 54 of New Matter is grammatically unclear and the averments of Plaintiffs' Complaint with regard to lateral support, damage to property and loss of value are reasserted as if fully set forth. 55. Denied. The averments of Paragraph 55 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, Plaintiffs sought quotes from Black's Landscaping to replace an area of landscaping destroyed by the collapse of the wall. 56-61. Denied. The averments of Paragraphs 56-61 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiffs demand judgment against Defendant Liberty Excavators, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. MARTSON LAW OFFICES By ` David A. Fitzsimons 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: May 1, 2007 Attorneys for Plaintiffs VERIFICATION We, Jeffrey Hawkins and Barbara Hawkins, hereby verify that we have reviewed the foregoing document and state that to the extent that the foregoing document contains facts supplied by or known to us, they are true and correct to the best of our knowledge, information and belief. We understand that false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. (V"e)-40?L J awkins arbara Hawkins RECEIVED APR 3 0 7 MARTSON L- ? CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Reply to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: JoAnne E. Kinzel, Esquire Snyder & Dorer 214 Senate Avenue Suite 503 Camp Hill, PA 17011 John W. Domberger, Esquire POST & SCHELL, P.C. 17 North Second Street, 12`" Floor Harrisburg, PA 17101 MARTSON LAW OFFICES i4?,tA. /? CC?r7A? Tncia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: May 1, 2007 0 . ..,,J C rte' '.. ?:: a: ?"'? ?.; ....d ?? _..? ?...? t ) .:. ?? ? ., y !' ? l ..V \05 A\LIAB\DLCARMELITE\LLPG\252483UMPARR\18158\00138 JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. GEMCRAFT HOMES, INC., Defendant V. NO. 06-6422 CIVIL ACTION - LAW BWB, INC., JURY TRIAL DEMANDED Additional Defendant PRAECIPE FOR RULE TO FILE JOINDER COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule directing Defendant, Gemcraft Homes, Inc., to file a Joinder Complaint within twenty (20) days of service of the Rule or risk a judgment of Non Pros. NN HEY, WARNER, GOGGIN DATE: BY: D,ONAJZ L. CARMELITE ESM I, 0.84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Additional Defendant RULE AND NOW, this /'day of 2007, upon consideration of the foregoing Praecipe, a Rule is hereby issued upon the Defendant, Gemcraft Homes, Inc., to file a Joinder Complaint within twenty (20) days or suffer judgment of Non Pros. ROT ARY SEAL JEFFREY AND BARBARA HAWIUNS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants V. BWB, INC., Additional Defendant NO. 06-6422 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do "kb certify that on this, 1 day of April 2007, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: David A. Fitzsimons, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Attorney for Plaintiffs JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Attorney for Gemcraft Homes, Inc. John W. Domberger, Esquire Post & Schell, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 Attorney for Liberty Excavators, Inc. Joann . Parr ? O n :.? r ?? ?" : ,.1 { t I'3 V ` _^! ?T? ?? ._. ? +' ? _. D..? pi y ? ? £ ? ? ~?t ?.rr ' ?A! } -_. r4 06HB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEHCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., IJURI, TRIAL DEMANDED Defendants vs. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendant YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint to Join Additional Defendants and Notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint to Join Additional Defendants or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 06HB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEmcRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, l ase No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Ly TRIAL DEMANDED Defendants VS. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendant AND NOW comes Original Defendant Gemcraft Homes, Inc. (hereafter Gemcraft), by its attorney, Joanne E. Kinzel, Esquire, and sets forth the following Complaint to Join Additional Defendants: 1. Plaintiffs are Jeffrey and Barbara Hawkins, adult individuals who currently reside at 1450 Main Street, Mechanicsburg, Pennsylvania 17055. 2. Original Defendant, Gemcraft Homes, Inc., is a corporation with a principle place of business at 2205-A Commerce Road, Forest Hills, Maryland 21050. 3. On or about June 26, 2006, a free-standing wall located partially on the Plaintiffs' propert y and partially on adjacent land recently purchased by Original Defendant Gemcraft, collapsed and allegedly caused certain damage to the Plaintiffs' realty. 4. As a result of the wall's collapse, the Plaintiffs f iled suit against Gemcraft and Liberty Excavators, Inc. alleging that they were jointly and severally liable for the damage to Plaintiffs' propert y. (A copy of the Complaint is attached hereto as Exhibit "A".) 'I 5. In response to the Complaint, Gemcraft filed an Answer denying any liability or responsibility for damages allegedly caused to the Plaintiffs' property. ( A copy of Gemcraft's Answer is a ttached hereto as Exhibit "B".) 6. Shortly before the wall's collapse and before Gemcraft purchased the property, it was owned by Additional Defendant Keith E. Peifer, an adult individual who resides at 34 W. Beale Avenue, Enola, Pennsylvania 17025. 7. When Additional Defendant Keith E. Peifer owned the property, the wall in question was part of a vintage barn which was located partly on Plaintiffs' property and partly on Mr. Peifer's property. 8. Before the property was sold to Gemcraft for residential development, the barn had been slated for destruction per township requirements. But before Gemcraft closed on the property, Mr. Peifer hired Additional Defendant The Barn Saver to dismantle the barn. 9. Additional Defendant The Barn Saver is a corporation, partnership, sole proprietorship or other business entity with a principle place of business at 1209 Reading Road, Navron, Pennsylvania 17555. 2 10. At Additional Defendant Keith E. Peifer's reque st, employees and representatives of The Barn Saver came onto the property and dismantled all but one wall of the barn. 11. Upon purchasing the property, Gemcraft hired Original Defendant Liberty Excavators, Inc. to among other things, demolish the wall and two other structures slated for demolition pursuant to township requirements. 12. Original Defendant Liberty Excavators, Inc. thereafter hired Additional Defendant BWB, Inc., to demolish the wall and other structures on the property. 13. Additional Defendant, BWB, Inc., is a corporation with a principle place of business at 400 Adams Street, Steelton, Pennsylvania 17113. 14. BWB, Inc. had not yet demolished the wall at the time of the incident alleged in Plaintiffs' Complaint. COUNTI GEMCRAFT vs. KEITH E. PEIFER NEGLIGENCE 15. Paragraphs 1 through 14 above are incorporated herein by reference as though set forth at length. 16. Any injuries or damages allegedly suffered by the Plaintiffs are solely the result of the negligence of the former property owner, Additional Defendant Keith E. Peifer, in: (a) hiring and allowing Additional Defendant The Barn Saver to dismantle only part of the barn, thereby destabilizing the remaining wall; (b) failing to inspect the remaining wall to determine if it was stable; 3 (c) failing to oversee Additional Defendant The Barn Saver's work to ensure that they would not create and leave an unstable and dangerous condition/structure upon the land; (d) failing to require Additional Defendant The Barn Saver to stabilize the remaining wall prior to leaving the project site; (e) failing to inform and warn Gemcraft and the neighboring properties of the unstable and dangerous condition created by Additional Defendant The Barn Saver; (f) failing to have the remaining barn wall demolished so as not to leave a dangerous and unstable structure upon the property. 17. Original Defendant Gemcraft hereby asserts a claim for contribution and/or indemnity against Additional Defendant Keith E. Peifer, for any and all sums which the Plaintiffs' recover from Gemcraft, although the existence of any liability on the part of Gemcraft is hereby denied. WHEREFORE, Additional Defendant Keith E. Peifer is solely liable to the Plaintiffs, or he is jointly and severally liable, or he is liable over to Gemcraft for any and all sums which the Plaintiffs recover against it. COUNT II GEMCRAFT vs. THE BARN SAVER NEGLIGENCE 18. Paragraphs 1 through 17 above are incorporated herein by reference as though set forth at length. 19. Any injuries or damages allegedly suffered by the Plaintiffs were solely the result of the negligence of Additional Defendant The Barn Saver in: (a) dismantling only part of the barn and leaving an unstable structure on the property; (b) failing to inspect the remaining wall to determine if it was stable. 4 (c) failing to support and stabilize the single remaining wall after the other walls had been dismantled; (d) failing to dismantle the entire barn; (e) failing to warn the property owner or abutting property owners of the danger presented by the free-standing wall. 20. If, at the time of trial, Original Defendant is found liable to the Plaintiffs, a liability which is expressly denied, Original Defendant Gemcraft hereby asserts a claim for contribution and/or indemnity against Additional Defendant The Barn Saver for any and all which the Plaintiffs recover against Gemcraft. WHEREFORE, Additional Defendant The Barn Saver is solely liable to the Plaintiffs, or it is liable over to Gemcraft for contribution and/or indemnity, or it is jointly and severally liable. COUNT III GEMCRAFT vs. BWB, INC. NEGLIGENCE 21. Paragraphs 1 through 20 above are incorporated herein by reference as though set forth at length. 22. Any injuries or damages allegedly suffered by the Plaintiffs were solely the result of the negligence of Additional Defendant BWB, Inc., in: (a) failing to demolish the free-standing wall in a timely manner; (b) allowing the wall to remain standing when, in the exercise of reasonable care, it knew, or should have known, that the wall was unstable and susceptible to collapse; (c) failing to stabilize the wall until demolition could be scheduled; (d) failing to warn abutting property owners of the dangers presented by the free-standing wall. 23. If, at the time of trial, it is determined that Gemcraft is liable to the Plaintiffs, a liability which is expressly denied, then Gemcraft hereby asserts a claim for contribution and/or indemnity against Additional Defendant BWB, Inc. although the existence of any liability on the part of Gemcraft is specifically denied. WHEREFORE, Additional Defendant BWB, Inc. is solely liable to the Plaintiffs, or it is liable over to Original Defendant Gemcraft for contribution and/or indemnity, or it is jointly and severally liable. COUNT IV GEMCRAFT vs. BWB, INC. BREACH OF CONTRACT 24. Paragraphs 1 through 23 above are incorporated herein by reference as though set forth at length. 25. Any injuries or damages allegedly suffered by the Plaintiffs are the result of BWB, Inc.'s breach of contract in: (a) failing to demolish the free-standing wall in a timely manner; (b) allowing the wall to remain standing when it knew, or should have known, that the wall was unstable and susceptible to collapse; (c) failing to stabilize the wall until demolition could be scheduled; (d) failing to warn abutting property owners of the dangers present by the free-standing wall. 26. If, at the time of trial, it is determined that Gemcraft is liable to the Plaintiffs, a liability which is expressly denied, then Gemcraft hereby asserts a claim for contribution and/or indemnity against Additional Defendant BWB, Inc. 6 WHEREFORE, Additional Defendant BWB, Inc. is solely liable to the Plaintiffs, or it is liable over to Original Defendant Gemcraft for contribution and/or indemnity, or it is jointly and severally liable. Respectfully submitted, LAW OFFICE OF SNYDER & DORER Date: May 15, 2007 By: JoAnne Identificatign)io. 55453 Attorney fo efendant, Gemcraft Homes, Inc. 06HB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants Y TRIAL DEMANDED vs. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendant JOANNE E. KINZEL, ESQUIRE, hereby states that she is the attorney for Defendant Gemcraft Homes, Inc. in this action, and is authorized to verify that the statements made in the foregoing Complaint to Join Additional Defendants are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unworn falsification to authorities. Date: ME 15, 2007 JoAnne E. ze , Esquire Attorney for Def dant, Gemcraft Homes, Inc. Court I.D. 55453 ?n?,?.+? David A. Fitzsimons, Esquire c ~ 1. D. No. 41722 ,?IARTSON DEARDORFF WILLIANIS & OTTO 71 10 East High Street r Carlisle, PA 17013 (717) 243-3341 JEFFREY & BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. NO. 06-6422 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., JURY TRIAL DEMANDED Defendants CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 X11-1C1?1i11?1115?1 ,lh???O.?:i1111 (717) 243-3341 JEFFREY & BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs VS. : NO. 06-6422 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., JURY TRIAL DEMANDED Defendants CIVIL ACTION - LAW COMPLAINT 1. Plaintiffs, Jeffrey and Barbara Hawkins, are adult individuals who currently reside at 1450 Main Street (Lisburn), Mechanicsburg, PA 17055. 2. Defendant, Gemcraft Homes, Inc. (hereinafter "Gemcraft") is a corporation with an office at 2205-A Commerce Road, Forest Hill, MD 21050. Gemcraft maintains a local office at 4309 Linglestown Road, Harrisburg, PA 17112. 3. Defendant, Liberty Excavators, Inc. (hereinafter "Liberty"), is a Pennsylvania Corporation, that maintains an office at 4402 Gettysburg Road, Camp Hill, PA 17011. 4. Gemcraft owns and is presently developing property that abuts the property owned by Plaintiffs. Gemcraft purchased and owned the remains of a 50' x 75' barn, ten feet of which traversed the Plaintiffs' property. This included a 35 foot, unsupported brick end wall of the partially demolished barn. 5. On April 14, 2006 Mark Vaughn of Liberty knocked on the Plaintiffs' door and requested permission to post some signs related to Gemcraft's pending development of the land abutting two sides of Plaintiffs' property. 6. Mr. Vaughn walked the property with Barbara Hawkins who pointed out several unsafe conditions on or near property owned by the Plaintiffs, including the 35-foot high brick wall. Barbara inquired as to who would be removing the barn wall and its foundation, since they posed obvious safety hazards. Considerable demolition debris including bricks, nails, wood with lead paint, and other garbage was also strewn throughout the foundation of the barn. 7. Mr. Vaughn and Barbara Hawkins also discovered several rusty and leaking 55 galloon drums marked with motor oil and antifreeze labels on Gemcraft's property. 8. Plaintiffs, along with their next door neighbor Mr. Ray Deremer, met on April 17, 2006 with Linda Hockenberry, Community Complaints Director for Lower Allen Township. After being advised of the conditions on the property and reviewing photographs of the property, Ms. Hockenberry contacted DEP. 9. During the first week of May, 2006 Jeffrey Hawkins and Ray Deremer noticed employees of Gemcraft and Liberty on site. The employees included Jeff Rhodes, Field Supervisor for Gemcraft, along with Don Larkin and Larry Fink, Project Supervisors from Liberty. 10. Mr. Hawkins and Mr. Deremer pointed out the unsafe brick wall, the 55 gallon drums, and asbestos shingles on Gemcraft's property. 11. At that time, Jeff Rhodes and Don Larkin assured Plaintiffs that the mess would be cleaned up and the land would be appropriately graded and seeded. Mr. Rhodes and Mr. Larkin assured all present that they wanted to be good neighbors. Liberty advised Mr. Hawkins and Mr. Deremer to speak with any of its supervisors if they had any questions. 12. Mr. Hawkins advised Mr. Larkin and Mr. Fink that if Liberty needed to come onto Plaintiffs' property all they needed to do was ask and inform us what work was going to be done. 13. DEP issued an inspection report and violations notice to Jeff Rhodes of Gemcraft on May 9, 2006. The report lists Gemcraft as the owner of the property and notes that Mr. Rhodes was present during DEP's investigation. A copy of the notice is attached as Exhibit 1 and incorporated by reference. 14. From May 11, 2006 through June 16, 2006, Jeff Hawkins repeatedly asked Larry Fink and John, another supervisor from Liberty, as to when the barn wall was going to be removed. Their responses were always, "Next week." In addition, Mr. Hawkins contacted Don Larkin and Jeff Rhodes on several occasions in order to determine the date of the wall removal. Mr. Larkin responded that BWB Demolition would be doing the clean up "very soon," while Mr. Rhodes failed to respond in any meaningful way. 15. In mid-June, Don Larkin indicated that Liberty had contracted with BWB Demolition Company to remove the brick wall and several other outbuildings located near Plaintiffs' property. BWB Demolition also would be cleaning up all of the demolition debris, except for brick and stone. 16. During the week of June 12, 2006, BWB Demolition Company entered Plaintiffs' property without notice and removed fence rails attached to a fence post on Plaintiffs' property, leaving rusty nails exposed. In addition, someone spray painted "BWB PA One" on the brick wall as well as on the other outbuildings. 1 7. On June 16, 2006, Jeff Hawkins contacted Don Larkin and demanded the wall be taken down by June 27, 2006, or that lie would be forced to take legal action against them. Nlr. Hawkins also requested that the parties meet at his property to discuss the steps necessary to remove the wall. 18. On June 23, 2006, Plaintiffs met with Don Larkin and Greg Sholly of BWB Demolition Company. The parties discussed the removal of Gemcraft's brick wall. Plaintiffs asked Mr. Sholly to try to leave about 6 to 8 feet of the wall for privacy purposes, and Mr. Sholly advised that the entire wall would likely come down during demolition. In addition, the parties discussed the grading of the land to insure lateral support of trees owned by the Plaintiffs, and the removal of all demolition waste from Plaintiffs' property and the foundation of the barn. 19. Plaintiffs granted Liberty and BWB Demolition Company permission to come onto Plaintiffs' property to remove Gemcraft's brick wall. 20. On June 26, 2006 Plaintiff's returned home to discover that Gemcraft's brick wall had collapsed onto Plaintiffs' property, destroying a shed and several mature trees, and covering a large section of Plaintiffs' lawn with bricks and other debris. 21. Plaintiffs worked for several hours on June 26, 2006, disabling a live, sparking electrical line, picking brick from the grassy areas of the lawn, and attempting to salvage the contents of the shed. 22. On June 27, 2006 Plaintiffs contacted Jeff Rhodes and Don Larkin to inform them that the brick wall had collapsed. Plaintiffs demanded that the mess be cleaned up immediately and that damages relative to the loss of Plaintiffs' lawn, trees, landscaping, and privacy be addressed. 23. On July 5, 2006, Plaintiffs met with Aaron Wheeler of Gemcraft and Don Larkin of Liberty. Liberty agreed to remove the collapsed brick wall, shed and fence debris, as well as the destroyed trees and stumps in the immediate area of the collapsed brick wall. In addition, Liberty agreed to spread topsoil in the area of the brick wall and perform minor grading modifications per Plaintiffs' directions. 24. Liberty and Gemcraft agreed to construct a privacy berm at the location previously occupied by the brick wall. Liberty and Plaintiffs completed a written agreement on July 5, 2006 establishing the responsibilities of Liberty. A copy of the agreement is attached as Exhibit 2 and incorporated by reference. 25. At the July 5, 2006 meeting, Gemcraft agreed to landscape the berm and to restore the lawn, trees, landscaping and privacy destroyed by the collapse of the brick wall. 26. On July 8, 2006, Liberty inadequately attempted to clean up Plaintiffs' property, but left a significant amount of debris, destroyed a wall that the parties had agreed would remain, and buried the electrical line to the former shed. 27. On July 17, 2006, Plaintiffs sent a letter via certified mail, e-mail and fax to Jeff Rhodes that outlined the agreement to restore Plaintiffs' trees, landscaping, lawn and privacy. The contents of the letter were consistent with the discussions of the July 5, 2006 meeting and subsequent conversations between Jeffrey Hawkins and Mr. Rhodes in which Gemcraft agreed to restore Plaintiffs' lawn, trees and privacy. A copy of that letter is attached as Exhibit 3 and incorporated by reference. 28. At the direction of Jeff Rhodes, Plaintiffs secured a quote from Black Landscape Contracting to develop a landscaping plan and estimate for restoration of Plaintiff's lawn, trees, landscaping and privacy. Plaintiffs' shared the quote with Gemcraft upon returning from vacation in mid August. 29. During the first week of August, Liberty began construction of a privacy berm while Plaintiffs were away on vacation. Liberty failed to contact Plaintiffs regarding construction specifics of the privacy berm as promised verbally and in a July 18, 2006, e-mail to Plaintiffs. Liberty did not complete its construction of the privacy berm nor did it place the privacy berm in the agreed upon location. In addition, a significant amount of debris remained on Plaintiffs' property including bricks, carpeting, wood, metal, and garbage. 30. During the remaining part of August, numerous phone calls made by Plaintiffs to Jeff Rhodes were unreturned. In addition, no one from Liberty contacted Plaintiffs regarding the clean up and construction of the privacy berm. 31. Due to Gemcraft and Liberty's failure to abide by their agreements and Liberty's inadequate attempts to restore Plaintiffs' property, Plaintiffs filed a complaint with District Magistrate Judge Clement on September 7, 2006. 32. At the request of Jeff Rhodes the parties held a meeting at Plaintiffs' property on September 12, 2006, after Defendants had been served with the Complaint. Liberty agreed to correct the privacy berm and complete the grading by October 1, 2006, but Liberty again failed to follow through with its promise. 33. At all times relevant to the events in this Complaint, Defendants exercised custody, control and/or ownership over the adjoining land and the structure which continued onto Plaintiffs' land. 34. At all time relevant to the events in this Complaint, Liberty was the agent of Gemcraft working within the scope of its authority. 35. Prior and subsequent to the collapse of the barn wall and resulting damage to Plaintiffs' property, both Gemcraft and Liberty, by their actions and representations, confinned their control of the land and strictures in question and their joint and individual commitment to prevent the damage to Plaintiffs' property, and after June 26, 2006, to remedy the damage entirely. COUNT I - NEGLIGENCE Jeffrey & Barbara Hawkins v. Gemcraft Homes, Inc. 36. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 37. Gemcraft failed to remove or temporarily shore the 35 foot, unsupported brick wall which resulted in Plaintiffs suffering damages, including actual physical damages to the property, loss of privacy, loss of use and quiet enjoyment of property, loss of use of shed, and interference with the peaceful possession of the real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Gemcraft Homes, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT II - NEGLIGENCE Jeffrey & Barbara Hawkins v. Liberty Excavators, Inc. 36. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 37. Liberty failed to remove or temporarily shore the 35 foot, unsupported brick wall which resulted in Plaintiffs suffering damages, including actual physical damages to the property, loss of privacy, loss of use and quiet enjoyment of property, loss of use of shed, and interference with the peaceful possession of the real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Liberty Excavators, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT III - BREACH OF CONTRACT Jeffrey & Barbara Hawkins v. Gemcraft Homes, Inc. 38. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 39. Gemcraft failed to satisfy its contractual obligation to remove the 35 foot, unsupported brick wall. Gemcraft's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. 40. Gemcraft failed to satisfy its contractual obligation to install a privacy berm, perform minor grading, spread topsoil, and restore Plaintiffs' trees, landscaping, lawn, and privacy. Gemcraft's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Gemcraft Homes, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT IV - BREACH OF CONTRACT Jeffrey & Barbara Hawkins v. Liberty Excavators, Inc. 41. The averments of Paragraphs 1 through 35 are incorporated by reference as if frilly set forth herein. 42. Liberty failed to satisfy its contractual obligation to remove the 35 foot, unsupported brick wall owned by Gemcraft. Liberty's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. 43. Liberty failed to satisfy its written obligation to install a privacy berm, perform minor grading, and spread topsoil over the lawn area destroyed by the collapse of the brick wall. WHEREFORE, Plaintiffs demand judgment against Defendant Liberty Excavators, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By: - David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 717-243-3341 Counsel for Plaintiffs Dated: December 12, 2006 D[-'PAR t MEN [' OFEN\'1RONNIENT,-\L PRO I LC LION BUREAU OF I-AND RECYCLING AND \VASTF \IAN:\GF\1FN l' j GENERAL INSPECTION REPORT T) pe of Inspection -- - M NI Identification Number Entn 'rime. Date - --TF'sit I'ime.l)ate-- ---- Site \ isit 4 '3 51'6 ,r, Facility Incident Name and Location =- \lu r Ii1y Corner field at Main Sli-"t and 1_:>h ail I:• aJ Lo,sc: A I,n f. %srsh:,i (burry umi>•_nand Name, Address of Responsible Official Tille Gem Craft Homes Owner Jeff Rhodes, Field Supervisor 2205-A Commerce Rd. Forest Hill, MD 21050 Telephone Interviewed (410) 893-8458 0 Yes ? No OBSERVATIONS AND COMMENTS: Jonathan Chripczuk and Megpn Laudenslager of the Department investigated a complaint of dumping and abandoned drums of liquid on 4/28/2006. Present from Lower Allen Township was Linda Hockenberry, the complaints coordinator. Jonathan Chripczuk conducted a follow-up site visit on 5%9/2006. Jeff Rhodes of Gem Craft Homes was present at the time. The findings of both visits are included in this report. The following were observed: 1. The weather was clear and calm, approximately 50 degrees F. 2. The foundation/lower level of a barn was observed. Many of the stall walls of the barn were still intact. Also observed in the foundation were piles Construction & Demolition waste, mainly consisting of wood beams and brick. Also included was a small amount of metals. 3. According to a 4/25/2006 telephone conversation with the complainant, the barn was recently demolished However, the northern wall of the barn was not demolished. The wall is approximately 20 feet tall and 30 feet long. Several cracks were observed in the wall. 4. Seven 55-gallon drums were observed on the site. The drums were in adequate condition and no leaking or staining was observed around the drum area. Two of the drums appeared to be full and two dr!inis were partially full. One partial drum and one full drum had old "Drydene" motor oil labels. One full drum had an antifreeze label. One partial drum had no label. All labels on the drums were old and partially worn off and in bad shape. 5. Approximately 30-50 waste tires were observed on the site 6. Several large metal tanks were observed on site. The tanks are presumed to be left over from a carpet cleaning operation. 7. During the follow-up visit on 59,'2006, it was observed that some of the scrap metal had been removed by the previous property owner. Additionally, a pile of Construction & Demolition waste was observed that inrl??rtnrl chinnla>e Tka cliinolFc onr?c>•irnr? fn rnntoin ocl-h.>ctnc RECOMMENDATIONS: _ 1. The Department recommends proper disposal of the seven 55-gallon drums on site. Any drums w ith material should be disposed of based on the materials contained in the drums. Generator knowledge of the drums may be adequate to determine the contents of each drum. If generator knowledge is not available, laboratory sampling may be necessary. Please forward disposal receipts to the Department. 2. Any waste on site should be disposed of at a permitted disposal facility. Scrap metal may be taken to a Exhibit 1 C' • 1'. ,N%t'l :\L-'fi OF PENNSI'L\':\' scrap yard. Ally waste nlatcrial nl, ')?.: ,.:ken to i landfill. Ncasc note that _k id block c:ul be used as clean till and is not considered waste;. Dimensional Illlrlber is not considcreet clean 1111 and should be disposed of at a landfill permitted to :ICCCpt COI1Structloll S DclllolitlOn waste. Please Coo and any disposal receipts to the Departnlcnt._ --- 3. :asbestos-containing materials should be handled by a certified asbestos contractor. T}1e Department therefore recommends that the shingles be inspected to determine applicability to state air duality regulations. If the nlatcrial is found to be Regulated Asbestos-Containing Material, please forward any disposal receipts to the Dcpartment. A fact sheet is Included with this report that explains the asbestos pro2rarn. I VIOLATIONS: 1. 35 P.S. Section 6018.610(l): It shall be unlawful for any person or municipality to dump or deposit, or permit the dumping or depositing, of any solid waste onto the surface of the ground or underground or into the waters of the Commonwealth, by any means, unless a permit for dumping of such waste has been obtained from the Department; provided, the Environmental Quality Board may by regulation exempt certain activities associated with normal fannin operations as defined by this act from such permit requirements. 2. 35 P.S. Section 6018.610(2): It shall be unlawful for any person or municipality to construct, alter, operate, or utilize a solid waste storage, treatment, processing or disposal facility without a permit from the department as required by this act or in violation of the rules and regulations adopted under this act, or orders of the Department, or in violation of an terms or condition of an pen-nit issued b the Department. 3. 35 P.S. Section 6018.610(4): It shall be unlawful for any person or municipality to store, collect, transport, process, treat, beneficially use or dispose of, or assist in the storage, collection, transportation, processing, treatment, beneficially use of disposal of, solid waste contrary to the rules or regulations adopted under this act, or orders of the Department, or any term or any condition or any permit, or in a manner as to create a public nuisance or to adversely affect the public health safety and welfare. 4. 35 P.S. Section 6018.610(9): It shall be unlawful for any person or municipality to cause or assist in the violation of any provision of this act, any rule or regulation of the Department, any order of the Department or an term of condition of an permit. 5. 35 P.S. Section 6018.302(a): It shall be unlawful for any person or municipality to dispose, process, store, or permit the disposal, processing, or storage of any residual waste in a manner which is contrary to the rules and regulations of the Department or to any pennit or to the terns or conditions of any permit or any order issued b the Department. 6. 35 P.S. Section 6018.301: No person or municipality shall store, transport, process, or dispose of residual waste within this Commonwealth unless such storage, or transportation, is consistent with or such processing or disposal is authorized by the rules and regulations of the Department and no person or municipality shall own or operate a residual waste processing or disposal facility unless such person or municipality has first obtained a pen-nit for such facility from the Department. Saniple Collected sample Numbers Analyses ? Yes ® No Inspector Name Inspector Signature Headquarters Date Jonathan Chri czuk 'O SCRO S Person Interviewed Name Signature of Person Interviewed "ritie Date Jeff Rhodes I Mailed Field Supervisor This document is official notification that a representative of the Department of Environmental Protection inspected the above-mentioned facility. The Findings of the inspection are shown above and on any attached pages. Violations discovered as a result of this inspection are indicated. Violations may also be discovered upon examination of the results of laboratory analyses, review of pertinent documents and further investigation. Notification will be forthcoming if such violations are discovered. Page 'I-_ of V--- Commonwealth of Pennsylvania • Department of Environmental Protection ASBESTOS PROGRAM FOR CONTRACTORS WORKING IN PENNSYLVANIA Pennsylvania's asbestos program includes federal and state regulations to help protect the public from exposure to large amounts of airborne asbestos. The following is a brief summary of the regulations. Information in this fact sheet does not supersede any federal state or local requirements. WHAT IS ASBESTOS? Asbestos is a generic term used to describe a variety of natural mineral fibers. From the early 1930s until the 1970s, manufacturers added asbestos to products to strengthen them and to provide heat insulation and fire resistance. Asbestos also resists corrosion and is a poor conductor of electricity. Because few products contained all of these properties, asbestos was widely used in the construction of homes, schools and other buildings. HOW CAN PEOPLE BE EXPOSED TO ASBESTOS? Most people are exposed to small amounts of asbestos in their daily lives. However, if materials containing asbestos are disturbed - for example sawed, scraped or sanded into a powder - asbestos fibers are more likely to become airborne and inhaled into the lungs. Contact the municipality where the project is located to find out if there are any local regulations. WHAT ARE SOME IMPORTANT DEFINITIONS IN THE ASBESTOS NESHAP REGULATIONS? • Friable ACM is material containing more than one percent asbestos that, when dry, can be crumbled, pulverized or reduced to a powder by hand pressure. • Nonfriable ACM is material containing more than one percent asbestos that, when dry, cannot be crumbled, pulverized or reduced to a powder by hand pressure. It is divided into two categories: - Category I includes asbestos-containing packings, gaskets, resilient floor coverings or Vinyl Asbestos Floor Tile, and asphalt roofing products. HOW IS ASBESTOS REGULATED IN PENN- SYLVANIA? Because asbestos, in certain forms, has been determined to cause serious health problems, the Department of Environmental Protection (DEP) regulates the removal, collection, transportation and disposal of Asbestos-Containing Materials (ACM). DEP's Air Quality program has adopted and enforces the federal Environmental Protection Agency's (EPA) 40 CFR Part 61 Subpart M, the Asbestos National Emission Standard for Hazardous Air Pollutants (NESHAP) regulations, as amended on November 20, 1990. Should a project be subject to the NESHAP regulations, a minimum ten-day notification of the project is required by both EPA and DEP. The DEP does not regulate the removal of ACM from private residences unless the residence is an apartment with five or more units. The State Department of Labor and Industry enforces Pennsylvania's Asbestos Occupations Accreditation and Certification Act of 1990 (Act 194 and Act 161), which requires at least a five-day notification of any asbestos project and certification for the following asbestos occupations: contractor, inspector, management planner, project designer, supervisor and worker. Call the Department of Labor and Industry at (717) 772-3396 for more information regarding Act 194 and Act 161. Category II includes any material, except Category I nonfriable ACM, such as transite siding shingles, galbestos, concrete-type piping and other ACM concrete-type products. Regulated Asbestos-Containing Materials (RACM) - (a) friable ACM; (b) Category I nonfriable ACM that has passively become friable by water damage, fire damage or weathering; (c) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, drilling or abrading; and (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized or reduced to a powder in the course of demolition or renovation operations. • Demolition - the wrecking or taking out of any load- supporting structural member of a facility together with any related handling operations or the intentional burning of any facility. • Renovation - altering a facility or one or more facility components in any way, including the stripping or removal of RACM from a facility component. Facility - any institutional, commercial, public, industrial or residential structure, installation or building. A residential building with four or fewer dwelling units is not a facility unless it is part of an Facility - any :rstituttonal, ccmmerc.ai. public or industrial structure A single res dential building with four or fewer dwelling units is not a regulated facility under the NESHAP regulation un.ess it -s part of an installation, which was previously subject to NESHAP regulations or is main use is not residential. e Installation - any group of buildings or structures at a single demolition or renovation site that are under the control of the same owner or operator. An installation may consist of two or more residential structures. WHAT DO I NEED TO KNOW BEFORE REMOVING ASBESTOS IN PENNSYLVANIA? St-,ite regulations stipulate that it is illegal for anyone to engage in any asbestos occupation (worker, supervisor, project designer, inspector, management planner or contractor) without proper certification from the PA DLI. These requirements, along with a five-day notification prior to the start of any abatement or demolition project where ACM is present, are outlined in the Pennsylvania Asbestos Occupations Accreditation and Certification Act of 1990 (Acts 194 and 161). Call the PA DLI at 717-772-3396 for more information regarding these requirements. The building must be thoroughly inspected for ACM prior to any renovation or demolition. If the amount of friable ACM that will be removed is more than 260 linear feet, 160 square feet or 35 cubic feet, the project falls under the federal NESHAP regulations. Ti h s requires that a notification be postmarked or hand delivered to DEP and EPA at least TEN WORKING DAYS prior to the start of the project. All demolitions of regulated facilities (as defined above) also require a ten-day notification to DEP and EPA, regardless of the presence of asbestos. Additional regulations exist for demolition and renovation of any building containing ACM in Philadelphia and Allegheny counties. In Philadelphia County, call 215-685-7576. For questions in Allegheny County, call 412-578-8133. It is important to contact the appropriate office if your project is located in either of these counties. WHAT ARE THE PROCEDURES FOR NOTIFICATION? Notification for projects in Pennsylvania should be made on the "Asbestos Abatement and Demolition/Renovation Notification" form (revised 10.2002; ,web form rev sed 8/2005). A form may be obtained by contacting the DEP asbestos office at 717-787-9257 or by contacting the nearest DEP regional office sted be,ow The form also can be pr,nted from the DEP Web site found at www depweb state pa us kChoose Air Topics, then All DEP Programs iA-Z), and under the A heading choose Asbestos) Complete instructions are given with the form. The notice must be delivered by the U.S. Postal Service, commercial delivery service or hand delivery. FACSIMILES ARE NOT ACCEPTABLE. WHAT IF / NEED MORE INFORMATION? To obtain copies of the NESHAP regulations, the notification form or other information, please contact your regional DEP office: Southeast Regional Office - 484-250-5920 for work in Bucks, Chester, Delaware and Montgomery Counties. Northeast Regional Office - 570-826-2511 for work in Carbon, Lackawanna, Lehigh, Luzerne, Monroe, Northampton, Pike, Schuylkill, Susquehanna, Wayne and Wyoming Counties. Southcentral Regional Office - 717-705-4702 for work in Adams, Bedford, Berks, Blair, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lancaster, Lebanon, Mifflin, Perry and York Counties. Northcentral Regional Office - 570-327-3638 for work in Bradford, Cameron, Centre, Clearfield, Clinton, Columbia, Lycoming, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga and Union Counties. Southwest Regional Office - 412-442-4000 for work in Armstrong, Beaver, Cambria, Fayette, Greene, Indiana, Somerset, Washington and Westmoreland Counties. Northwest Regional Office - 814-332-6940 for work in Butler, Clarion, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, McKean, Mercer, Venango and Warren Counties. For work done in Philadelphia County, contact Air Management Services at 215-685-7576. For work done in Allegheny County, contact Allegheny County Health Department at 412-578-8133. For more information, visit DEP's Web site at www, depweb.state.pa us, Keyword: "Air Topics." commonweaftA or Pennsylvania Depanmenf or Environmental Protection Edward G. Rendell, Governor Kathleen A. McGinty, Secretary An Equal Opportunity Employer 2700-FS-DEP2106 Rev. 17006 Recycled Pepsr;A".¦T LIBERTY EXCAVATORS, INC. F J ulv 5. 2006 Site De%clopment (,ontractor- 1 0-, Gctt\>hur , Road C'11111) Ilill. PA 1't)11 I ---o1 - 8.16 1 Fay -17 ,1-1ol-l Jeffrey B. & Barb Hawkins 1 150 Main Street Mechanicsburg. PA 17055 Reference: Collapsed Barn Wall at fellow Breeches Farm Liberty Project #206011 Dear Jeff & Barb: Thank you for meeting with us today. This letter serves to summarize our discussion as well as reduce our verbal agreement to writing. Liberty Excavators will enter your property for the purpose of removing the barn wall debris, shed debris, fence debris, and stumps in the immediate area of the collapsed wall as directed by you. We will dispose of this material in accordance with PADEP requirements. Weather permitting, this will occur on Friday, July 7, 2006. If weather delays are encountered, the work will be performed on the first weekday suitable weather is present. We will also re-spread topsoil in the area damaged by the barn wall and perform minor grading modifications per your direction as far as they are permitted by Lower Allen Township and standard construction standards for drainage. In the course of this grading, a privacy berm will be constructed at the location previously occupied by the barn wall. The construction of the privacy berm will be completed upon completion of grading the building lots adjacent to your property. This grading will not disturb the lateral support of your adjoining land. Landscaping of the berm, planting of any trees or shrubbery, lawn restoration, and replacement of the shed and fence will be by other contractors secured by C?emcraft Homes or yourself. Upon satisfactory completion of the clean up and grading, you agree to release Liberty Excavators, Inc. from any personal claims for property damages related to the collapse of the barn wall. We are providing the above proposal in the spirit of helping a neighbor resolve an unfortunate situation created by others, and do not admit nor assume any responsibility for causing it. Please sign this letter below and fax it back to 71171 -7131-1631 by noon on Thursday July 6, so that we may proc with the work % it e schedule specified above. l 771 ? c? SiyI; / inted Nai Date Sign ure/Printed Name Date Jcffrev B. fiawkins Barh Hawkins Sincerely. um-,,wn, i,Ac,kv,xro its. INC. Don Larkin Exhibit 2 I'rnIcrt. LIII;i?et flO hhpdc.,z. f ie Rlcraft Honlus T' )III `u lltlvll. Genlcraft Holly'. \ru??n "'heeler. CielllMlft HORled July 17, 2006 Mr. Jeff Rhodes Gemcraft Homes 2205-A Commerce Road Forest Hill, MD 21050 VIA CERTIFIED MAIL/EMAIL/FAX RE: Clean Up and Restoration of the Hawkins' Property Mr. Rhodes: I am following up on our discussion this past Friday and the meeting held on July 6th with Aaron Wheeler from Gemcraft Homes ("Gemcraft") and Don Larkin of Liberty Excavators, Inc ("Liberty"). As agreed during the July 6th meeting and pursuant to a written agreement, Liberty did the following work on July 81h: Moved brick from my yard to within the footprint of the barn. Removed a crushed shed and its concrete foundation. Removed two large, crushed trees including the stumps. Spread clean fill over most of the disturbed area in my yard. Although there remains a large pile of brick on my property, Mr. Larkin indicated that Liberty would be removing the debris late this week or early next week when it completes the grading of Gemcraft's property, which abuts the southern aspect of my property. Aaron Wheeler stated that Gemcraft would be willing to have Liberty construct a "beauty/privacy" berm along the southern portion of my property. We also discussed potentially using Black's Landscaping to plant some trees and restore the lawn that was destroyed. Black's Landscaping is two doors down from the construction site and is currently under contract with Liberty to do seeding of the swales/drainage basins. Mr. Wheeler's offer to plant trees and restore our lawn is consistent with the agreements we made during phone discussions overthe past few weeks. So as to avoid any confusion between the obligations of Liberty and Gemcraft, I recommend that the parties define who will be responsible for what. My take is that Liberty expects to be relieved of its responsibilities when it completes the final rough grading of the property and the construction of the privacy berm. If this is not the case, the parties need to let me know. In Exhibit 3 addition, I need to have a general idea as to what the final rough grade and the privacy berm will look like before it is constructed. With regard to the planting of trees and the restoration of my lawn, I propose that Gemcraft do the following: > Agree in writing to use Black's Landscaping or other acceptable landscaping company for the planting of trees reasonably sufficient to restore the privacy lost by the destruction of trees, shrubs, and the shed. > Agree in writing to use Black's Landscaping or other acceptable landscaping company for the restoration of the destroyed lawn with quality top soil and grass seed. This would include a final grading of the land. > Agree in writing to have the restoration work completed by September 30, 2006. r nally, I would note that there are two large trees on my property that will need lateral support. If the present grade of Gemcraft's land is continued in this area, those trees will not have adequate lateral support. The elevation of the land in this area has been the same for over 150 years. Any disruption of the land that removes the lateral support of my property will be a violation of my common law right to lateral support and is an action I will challenge. Your prompt response is anticipated and will be appreciated. I would like to have a signed written agreement with Gemcraft completed by July 26, 2006. If you have any questions please do not hesitate to contact me at 717-697-0277 or 717-720-4078. Respectfully, Jeff re . Hawkins'- cc: Mr. Don Larkin 12/11/2006 09:56 7177204213 OFFICE OF LEGAL COUN PAGE 02 VEit2IFICATION We, Jeffrey Hawkins and Barbara Hawkins, hereby verify that we have reviewed the foregoing document and state that to the extent that the foregoing document contains facts supplied by or known to us, they are true and correct to the best of our knowledge, information and belief We understand that false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4404, relating to unworn falsification to authorities. ti e y Awgris 't arbara Hawkins CERTIFICATE OF SERVICE AND NOW, this 12"i day of December, 2006, I hereby certify that I have served the foregoing Complaint on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: JoAnne E. Kinzel, Esquire LAW OFFICE OF SNYDER & DORER 214 Senate Avenue Suite 503 Camp Hill, PA 17011 Counsel for Defendant Gemcraft Homes, Inc. AND NOW, this 12" day of December, 2006, I hereby certify that I have served the foregoing Complaint on the following by depositing a true and correct copy of same in the United States mail, certified mail, return receipt requested, addressed to: Liberty Excavators, Inc. c/o Mr. Don Larkin 4402 Gettysburg Road Camp Hill, PA 17011 David A. Fitzsimons, Esquire 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMEs, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., 1JURY TRIAL DEMANDED Defendants CE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth the following pages, you must take action within twenty (20) days after this Answer with New Mat and New Matter Under Rule 2252(d) to Complaint and Notice are served by entering a writs appearance personally or by attorney and filing in writing with the court your defenses or objections the claims set forth against you. You are warned that if you fail to do so, the case may proceed with( you, and a judgment may be entered against you by the court without further notice for any mon claimed in the Answer with New Matter and New Matter Under Rule 2252(d) to Complaint or for a other claim or relief requested by the Plaintiff. You may lose money or property or other rig] important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENl E, SCITE 503 CAMP HILL, PA 17011 TELEPHONE Nt MBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GENICRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, ase No.: 06-6422 Civil Term Plaintiffs . vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., URY TRIAL DEMANDED Defendants ANSWER WITH NEW MATTER AND NEW MATTER UNDER RULE 2252(D) OF DEFENDANT, GEMCRAFT HOMES, INC. TO PLAINTIFFS' COMPLAINT AND NOW comes the Defendant, Gemcraft Homes, Inc., by its attorney, JoAnne E. Kinzel, Esquire, and sets forth the following Answer to the Plaintiffs' Complaint: 1. - 2. Paragraphs 1 and 2 of the Complaint are admitted. 3. Paragraph 3 of the Complaint is directed to another Defendant. Therefore, no response is required of this Defendant. 4. The allegations in paragraph 4 of the Complaint are admitted in part and denied in part. It is admitted that Gemcraft owns and is presently developing the property that abuts the property owned by the Plaintiffs. The remaining allegations in paragraph 4 of the Complaint are denied as stated. On the contrary, at the time Gemcraft signed the purchase agreement, the property contained a barn that was slated for destruction per toxNnship requirements. Before Gemcraft closed on the property, the owner allowed a compam called Barn Savers to dismantle the barn. Barn Savers dismantled most of the barn, but left one Nall standing. 5.- 8. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 5 through 8 of the Complaint. Therefore, they are denied and strict proof is demanded. By way of further Answer, Gemcraft was not the owner of the property at the times referenced in paragraphs 5 through 8 of the Complaint. 9.-11. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 9 through 1 l of the Complaint. Therefore, they are denied and strict proof is demanded. To the extent that a further response is deemed necessary, said allegations are denied generally pursuant to Pa.R.C.P. §1029(e). 12. The allegations in paragraph 12 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. 13. The allegations in paragraph 13 of the Complaint concern a written report whip speaks for itself. By way of further answer, the reports reference to Gemcraft as the owner of the property is in error. On the contrary, Gemcraft was not the owner of the property at the time the report was issued. 14. The allegations in paragraph 14 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 15. The allegations in paragraph 15 of the Complaint are admitted to the extent that Liberty Excavators contracted with BWB Demolition Company to remove the brick wall. 16. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 16 of the Complaint. Therefore, they are denied and strict proof is demanded. 17. - 21. Paragraphs 17 through 21 of the Complaint are directed to another party. Therefore, no response is required from this Defendant. To the extent that a response is deemed necessary, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 17 through 21. Therefore, they are denied and strict proof is demanded. 22. - 23. The allegations in paragraph 22 and 23 are denied generally pursuant to Pa.R.C.P. §1029(e). 24. In response to the allegations in paragraph 24 of the Complaint regarding a written agreement between Plaintiffs and Defendant Liberty, Gemcraft avers that the document speaks for itself. The remaining allegations in paragraph 24 of the Complaint are denied generally to Pa.R.C.P. §1029(e). 25. The allegations in paragraph 25 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 26. The allegations in paragraph 26 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. To the extent that a response is deemed necessary, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 26 of the Complaint. Therefore, they are denied and strict proof is demanded. 27. The allegations in paragraph 27 of the Complaint are admitted to the extent that Plaintiff sent a letter to Gemcraft and that a copy of said letter was attached to the Complaint as Exhibit 3. The remaining allegations in paragraph 27 of the Complaint are denied generally pursuant to Pa.R.C.P. § 1029(e). 28. The allegations in paragraph 28 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 29. The allegations in paragraph 29 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. To the extent that a response is deemed necessary, after reasonable investigation. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 29 of the Complaint. Therefore, they are denied and strict proof is demanded. 30. To the extent the allegations in paragraph 30 of the Complaint are directed to Gemcraft. they are denied generally pursuant to Pa. R.C.P. ti 1029(e). 31. Paragraph 31 of the Complaint is admitted to the extent that Plaintiff filed a district justice Complaint. The remaining allegations in paragraph 31 are denied generally pursuant to Pa.R.C.P. § 1029(e). 32. The allegations in paragraph 32 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 33. The allegations in paragraph 33 of the Complaint are conclusions of law to I which no response is required. To the extent that a response is deemed necessary, said I allegations are denied. 34. The allegations in paragraph 34 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are denied. On the contrary, Liberty Excavators was at all times relevant hereto an independent contractor and not an agent of this Defendant. 35. The allegations in paragraph 35 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are specifically and generally denied. COUNT I 36. In response to paragraph 36 of the Complaint, Defendant incorporates herein by reference paragraphs 1 through 35 above as though set forth at length. 37. The allegations in paragraph 37 of the Complaint are specifically and generally denied. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. COUNT II 36 -37. [sic] Paragraphs 36 and 37 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. COUNT III 38. In response to paragraph 38 of the Complaint, Defendant incorporates herein by reference paragraphs 1 through 35 above as though set forth at length. 39. -40. The allegations in paragraphs 39 and 40 of the Complaint are specifically denied. On the contrary, there was no contract between the Plaintiffs and Gemcraft concerning any of the matters set forth in the Complaint. Therefore. no causC of action exists for breach of contract between the Plaintiffs and this Defendant. WHEREFORE, Plaintiffs" Complaint should be dismissed with costs in the Defendant ' s behalf sustained. COUNT 1V 41.- 43. Paragraphs 41 through 43 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. NEW MATTER 44. Plaintiffs' Complaint fails to state a cause of action against Gemcraft for of contract. 45. Any injuries or damages allegedly suffered by the Plaintiffs were the result of their failure to take precautions to protect their property from a perceived danger which partially existed on their own property. 46. Any injuries or damages allegedly suffered by the Plaintiffs were the result of their failure to object to the partial dismantling of the barn by the owner of the property. Keith Peiffer, or by Barn Savers, who created and permitted the dangerous condition set firth in the Complaint to exist. 47. Any injuries or damages allegedly suffered by the Plaintiffs were the result of the negligence of the property owner, Keith Peiffer, in permitting Barn Savers to partially dismantle the barn and create the dangerous condition set forth in the Plaintiffs ' Complaint. 48. Any injuries or damages allegedly suffered by the Plaintiffs were the result of the negligence of Barn Savers in partially dismantling the barn and creating the dangerous condition set forth in the Plaintiffs' Complaint. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. By: Respectfully submitted, LAW OFFICE OF SNYDER & DORER JoAnne E? I Kinzel, Esquire Identific'ion No. 55453 Attorney for Defendant, Gemcraft Homes, Inc. Date: February 8, 2007 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., URY TRIAL DEMANDED Defendants TION I, Tom Scannell, Gemcraft Homes, Inc. , verify that the statements made in tl foregoing Answer with New Matter and New Matter Under Rule 2252(4) of Defendant,geme EIome39 Into Plaintiffs' Complaint, which are within the personal knowledge of d undersigned, are true and correct, and as to the facts based on the information of others, d undersigned, after diligent inquiry, believe them to be true. And further, this Verification signed on the recommendation of my attorneys, who advise me that the allegations ar language in this document are required legally to raise issues for resolution at trial, by ti Court, or by continuing investigation and preparation for trial. I understand that some of the, allegations may prove inappropriate after investigation and trial preparation are complete and leave the determination of these matters to my attorneys on their advice. I understand that all statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unsworn falsifications to authorities. Dated: ,- t , y,c o Tom Scannell, Gemcraft Homes, Inc. t 06HB-00139 LAVE' OFFICE OF SNYDER & DORER 211 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Y TRIAL DEMANDED Defendants TE OF JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Answer with New Matter and New Matter Under Rule 2252(d) of Defendant, Gemcraft Homes, Inc., to Plaintiffs' Complaint to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto 10 East High Street Carlisle, PA 17013 John W. Domberger, Esquire Post & Schell 17 North 2"d Street 12`h Floor Harrisburg, PA 17101 Date: February 8, 2007 JoAnne E. Kinzel, Esquire Attorney for Defendant, Gemcraft Homes, Inc. 06HB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., "Y TRIAL DEMANDED Defendants VS. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendant JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Complaint to Join Additional Defendants to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto 10 East High Street Carlisle, PA 17013 John W. Domberger, Esquire Post & Schell 17 North 2nd Street 12`h Floor Harrisburg, PA 17101 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and Goggin 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 The Barn Saver 1209 Reading Road Navron, PA 17555 Keith E. Peifer 34 West Beale Avenue Enola, PA 17025 Date: May 15, 2007 JoAnn 14<ikel, Esquire Attorn r Defendant, Ge aft Homes, Inc. 2 cn y t \05_A\LIAB\DLCARMELITE\LLPG\255338VMPARR\18158\00138 JEFFREY AND BARBARA HAWKINS, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants V. THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, Additional Defendants NO. 06-6422 CIVIL ACTION - LAW JURY TRIAL DEMANDED ADDITIONAL DEFENDANT BWB, INC.'S PRELIMINARY OBJECTIONS TO ORIGINAL DEFENDANT GEMCRAFT HOMES, INC.'S COMPLAINT TO JOIN ADDITIONAL DEFENDANTS 1. This matter was instituted by Plaintiffs Jeffrey and Barbara Hawkins at the Magisterial District Judge level against Gemcraft Homes and Liberty Excavators. 2. An award was made in favor of Plaintiffs. 3. Defendants appealed to the Court of Common Pleas of Cumberland County. Thereafter, Plaintiffs filed a Complaint against Gemcraft Homes, Inc. and Liberty Excavators, Inc. 4. Original Defendant Gemcraft Homes, Inc. filed a Writ of Summons against Additional Defendants, The Barn Saver, BWB, Inc. and Keith E. Peifer. 5. Thereafter, pursuant to a Rule to File a Joinder Complaint, Defendant Gemcraft Homes, Inc. filed a Joinder Complaint against Additional Defendants, The Barn Saver, BWB, Inc. and Keith E. Peifer. 6. The Joinder Complaint at Counts III and IV allege claims for negligence and breach of contract against BWB, Inc. (See, Joinder Complaint at Exhibit "A"). 7. Defendant Gemcraft alleges that it owns a certain piece of property which gives rise to Plaintiffs' property damage claim. 8. The property was previously owned by Additional Defendant Keith Peifer and had a barn situated partially on Mr. Peifer's property and partially on Plaintiffs' property. 9. Defendant Gemcraft alleges that prior to its purchase, Mr. Peifer had Additional Defendant Barn Saver dismantle all but one wall of the barn. 10. After purchasing the property, Defendant Gemcraft alleges that it hired Defendant Liberty Excavators to dismantle the remaining barn wall. 11. Defendant Gemcraft also alleges that Defendant Liberty Excavators hired Additional Defendant BWB, Inc. to dismantle the wall and other structures on the property. 1. Preliminary Objection Pursuant to Pa.RC.P.1028(a)(3), Demurrer for Legal Insufficiency of Pleading 12. Defendant Gemcraft at Count IV of its Joinder Complaint asserts a breach of contract claim against BWB, Inc. 13. Defendant Gemcraft fails to allege anywhere in its Joinder Complaint what contract it and BWB, Inc. were parties to. 14. Defendant Gemcraft, Inc. failed to attach a copy of any written document evidencing any agreement or contract between Gemcraft and BWB, Inc. 15. As such, because Defendant Gemcraft Homes, Inc. has failed to plead legal sufficiency of a breach of contract claim, Additional Defendant BWB, Inc.'s Preliminary Objections must be sustained. WHEREFORE, Additional Defendant BWB, Inc. respectfully requests that this Honorable Court grant its Preliminary Objections pursuant to Pa.R.C.P. 1028(a)(3) against Defendant Gemcraft Homes, Inc. because Defendant Gemcraft failed to plead with legal sufficiency the breach of contract claim. II. Preliminary Objection Pursuant to Pa.RC.P. 1028(a)(2) for Failure of Pleadines to Conform to Law or Rules of Court 16. Pursuant to Pa.R.C.P. 1024, Defendant Gemcraft Homes, Inc.'s "Complaint to Join Additional Defendants" required a Verification made by one or more of the parties filing the pleading. 17. Defendant Gemcraft's Joinder Complaint lacks a Verification by one or more of the parties filing the pleading. 18. Rather, Attorney JoAnne E. Kinzel, Esquire has filed an Attorney Verification. 19. As such, because Defendant Gemcraft Homes, Inc.'s Complaint to Join Additional Defendants lacks a Verification signed by one or more of the parties, Additional Defendant BWB, Inc.'s Preliminary Objections must be sustained. WHEREFORE, BWB, Inc. respectfully requests that this Honorable Court grant its Preliminary Objections pursuant to Pa.R.C.P. 1028(a)(2) against Defendant Gemcraft Homes, Inc. because Defendant Gemcraft Homes, Inc. failed to comply with and follow Pa.R.C.P. 1024. DATE: 67P BY: Respectfully submitted, MARSHALL, D I IN L. , WARNER, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Defendant, BWB, Inc. JEFFREY AND BARBARA HAWKINS, Plaintiffs V. GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants V. BWB, INC., Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-6422 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of A& y 2007, served a copy of the foregoing Preliminary Objections to Defendant Gemcraft Homes, Inc.'s Complaint to Join Additional Defendants via First Class United States mail, postage prepaid, unless otherwise specified, as follows: David A. Fitzsimons, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Attorney for Plaintiffs John W. Dornberger, Esquire Post & Schell, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 Attorney for Liberty Excavators, Inc. JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Attorney for Gemcraft Homes, Inc. The Barn Saver 1209 Reading Road Narvon, PA 17555 Keith E. Peifer 34 West Beale Avenue Enola, PA 17025 Joann ?1- Parr h r r PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: ? Pre-Trial Argument Court ® Argument Court -------------------------------- ------------------------------------- CAMON OF CASE (entire caption must be stated in full) JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants CIVIL ACTION - LAW V. THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, JURY TRIAL DEMANDED Additional Defendants No. 6422 Civil Term 20 06 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to compliant, etc.): Defendant BNB, Inc.'s Preliminary Objections to Original Defendant Gemcraft Homes, Inc.'s Complaint to Join Additional Defendants. 2. Identify counsel who will argue case: (a) for Plaintiffs: David Fitzsimons, Esquire - Ten East High Street, Carlisle, PA 17013 (b) for Defendant Gemcraft Homes, Inc.: JoAnne Kinzel, Esquire - 214 Senate Avenue, Suite 503, Camp Hill, PA 17011. (c) for Defendant Liberty Excavators, Inc.: John Dornberger, Esquire -17 North Second Street,12th Floor, Harrisburg, PA 17101. (d) for Additional Defendant BNB, Inc.: Donald Carmelite, Esquire - 4200 Crums Mill Road, Harrisburg, PA 17112. r.. lk (e) Additional Defendant: The Barn Saver -1209 Reading Road, Narvon, PA 17555. (f) Additional Defendant: Keith E. Peifer - 34 West Beale Avenue, Enola, PA 17025. 3. I will notify all parties in writing within two days that thiEgoAas been listed for argument. 4. Argument Court Date: July 11, 2007 Esquire Attorney for Defendant, BWB, Inc. \05_A\LIAB\DLCARMELITE\LLPG\255344\JMPARR\18158\00138 + l rn r ? awl W ? 06HB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FQR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, ase No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., y TRIAL DEMANDED Defendants VS. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendant TO THE PROTHONOTARY: Kindly substitute the attached Verification to Complaint to Join Additional Defendants for the attorney's Verification that had been filed with the Court on or about May 17, 2007. Respectfully submitted, Date: June 1, 2007 By: LAW OFFICE OF SNYDER & DORER JoAnne E. nze)~, Esquire Identificati No. 55453 Attorney for Defendant, Gemcraft Homes, Inc. 06BB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HQMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Plaintiffs Vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants VS. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendant No.: 06-6422 Civil Term Y TRIAL DEMANDED I, Tom Scannell, Gemcraft Homes, Inc. , verify that the statements made in the foregoing Complaint to Join Additional Defendants, which are within the personal knowledge of the undersigned, are true and correct, and as to the facts based on the information of others, the undersigned, after diligent inquiry, believe them to be true. And further, this Verification is signed on the recommendation of my attorneys, who advise me that the allegations and language in this document are required legally to raise issues for resolution at trial, by the Court, or by continuing investigation and preparation for trial. I understand that some of these allegations may prove inappropriate after investigation and trial preparation are complete and I leave the determination of these matters to my attorneys on their advice. I understand that all statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsifications to authorities. Dated: ek:i a ob7 Tom Scannell, Gemcraft Homes, Inc. 06HB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, l ase No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., ?ay TRIAL DEMANDED Defendants VS. The Barn Saver and BVWB, Inc. and Keith E. Peifer, Additional Defendant JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Praecipe to Substitute Verification to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto 10 East High Street Carlisle, PA 17013 John W. Dornberger, Esquire Post & Schell 17 North 2nd Street 12`h Floor Harrisburg, PA 17101 , Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 The Barn Saver 1209 Reading Road Navron, PA 17555 Date: June 1, 2007 Keith E. Peifer 34 West Beale Avenue Enola, PA 17025 JoAnne E. KiriVel, Esquire Attorney for Defendant, Gemcraft Homes, Inc. 2 a -rj - i *y r - c-n , - -''Z7 Bruce D. Foreman, Esquire Foreman & Foreman, P.C. - ID #21193 Attorney for Additional Defendant Keith E. Peifer 112 Market Street, Sixth Floor Harrisburg, PA 17101 (717) 236-9391(phone) - 717-236-6602(fax) bruce@foreman-foreman.com Jeffrey & Barbara Hawkins Plaintiffs V. Gemcraft Homes, Inc. Liberty Excavators, Inc Defendants V. The Barn Saver and BWB, Inc. and Keith E. Peifer IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA and . NO. 2006-06-6422 CIVIL LAW JURY TRIAL DEMANDED Additional Defendant : NOTICE TO PLEAD To: GemCraft Homes, Inc. C/o JoAnne E. Kinzel, Esquire Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Liberty Excavators, Inc. C/o Donald Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Jeffrey and Barbara Hawkins C/o David Fitzsimons, Esquire Martson, Deardorff, Wiliam & Otto 10 East High Street Carlisle, PA 17013 The Barn Saver 1209 Reading Road Navron, PA 17555 You are hereby notified to file a written response to the enclosed New Matter/Affirmative Defenses within twenty (20) days from service hereof or judgment may be entered against you. FOREMAN & FORE , P.C. Dated: June 12, 2007 By: Bru a D. Foreman, Esquire Attorney for Additional Defendant Attorney ID #21193 112 Market Street, 6th Floor Harrisburg, PA 17101 Bruce D. Foreman, Esquire Foreman & Foreman, P.C. Attorney for Additional Defendant Keith E. Peifer ID#21193 112 Market Street, Sixth Floor Harrisburg, PA 17101 (717) 236-9391 - phone (717) 236-6602 - fax bruce@foreman-foreman.com Jeffrey & Barbara Hawkins Plaintiffs V. Gemcraft Homes, Inc. and Liberty Excavators, Inc Defendants V. The Barn Saver and BWB, Inc. and Keith E. Peifer Additional Defendant : JURY TRIAL DEMANDED ANSWER OF KEITH E. PEIFER TO COMPLAINT TO JOIN ADDITIONAL DEFENDANTS AND NOW, comes Additional Defendant Keith E. Peifer, by and through his attorneys, Bruce D. Foreman, Esquire and Foreman & Foreman, P.C., and in response to Complaint to Join Additional Defendants responds as follows: 1. Admitted. 2. Admitted. 3. After reasonable investigation Additional Defendant Keith E. Peifer (Peifer) is unable to determine the truth or falsity of the averments of paragraph 3 of Complaint and, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-06-6422 CIVIL LAW accordingly, the same is denied; if relevant, strict proof thereof is demanded. 4. To the extent that the averments of paragraph 4 of Complaint are not legal conclusions and requires response. The same are denied; in further response, Exhibit "A" speaks for itself. 5. The averments of paragraph 5 of Complaint are legal conclusions and require no response; in further response Exhibit B speaks for itself. 6. To the extent that the averments of paragraph 6 of Complaint are not legal conclusions and requires response, after reasonable investigation, Peifer is unable to determine the truth or falsity of the averments, the same are denied; if relevant strict proof thereof is demanded. 7. Admitted in part and denied in part; it is admitted that at some point in time, the wall which Peifer believes is referred to in paragraph 7 of Complaint was part of a vintage barn; the remaining averments of paragraph 7 are denied and, if relevant, strict proof thereof is demanded. 8. To the extent of paragraph 8 of Complaint are not a legal conclusion and require response; it is admitted that Peifer engaged the services of The Barn Saver; all remaining averments of paragraph 8 of Complaint are denied and, if relevant, strict proof therefore is demanded. 9. To the extent of Paragraph 9 of Complaint is not a legal conclusion and requires response, after reasonable investigation, Peifer is unable to determine the truth or falsity of the same and, accordingly, the averments are denied; if relevant, strict proof thereof is demanded. 10. Denied as stated; is denied that Peifer requested employees or representatives of The Barn Saver to come to the "property" and dismantle all but one wall of the "Barn". 2 11. To the extent of Paragraph 11 of Complaint is not a legal conclusion and requires response, after reasonable investigation Peifer is unable to determine the truth or falsity of the same and, accordingly, the averments are denied; if relevant, strict proof thereof is demanded. 12. To the extent that the averments of Paragraph 12 of Complaint are not a legal conclusion and require response, after reasonable investigation, Peifer is unable to determine the truth or falsity of the same and, accordingly, the averments are denied; if relevant, strict proof thereof is demanded. 13. To the extent of Paragraph 13 of Complaint is not a legal conclusion and requires response, after reasonable investigation, Peifer is unable to determine the truth or falsity of the same and, accordingly the averments are denied; if relevant, strict proof thereof is demanded. 14. To the extent of Paragraph 14 of Complaint is not legal conclusion and requires response, after reasonable investigation, Peifer is unable to determine the truth or falsity of the same and, accordingly, the averments are denied; if relevant strict proof thereof is demanded. 3 COUNT 1 15. Peifer incorporates herein his responses to paragraphs 1 through 14, inclusive, as if fully its set forth. 16. To the extent that the averments of Paragraph 16 are not legal conclusions and require response, the same are denied; if relevant, strict proof thereof is demanded. 17. To the extent that the averments of Paragraph 17 are not legal conclusions and require response, the same are denied; if relevant, strict proof thereof is demanded. WHEREFORE, Peifer respectfully requests that Count I against Peifer be dismissed with costs taxed against Plaintiffs or Defendants COUNT II 18. through 20. Count II does not include Peifer as an Additional Defendant, and accordingly, does not require a response from Peifer. To the extent that any response is required from Peifer, the same are denied. WHEREFORE, Peifer respectfully requests that Count II be dismissed against Peifer with costs taxed against Plaintiffs or Defendants. COUNT III 24 through 26. Count III does not include Peifer as an Additional Defendant, and accordingly, does not require a response from Peifer. To the extent that any response is required from Peifer the same are denied. WHEREFORE, Peifer respectfully requests that Count III be dismissed against Peifer with costs taxed against Plaintiffs or Defendants. 4 COUNT IV 24 through 26 Count IV does not include Peifer as an Additional Defendant, and accordingly, does not require a response from Peifer. To the extent that any response is required from Peifer the same are denied. WHEREFORE, Peifer respectfully requests that Count IV be dismissed against Peifer with costs taxed against Plaintiffs or Defendants. NEW MATTER 27. Peifer incorporates herein his responses to paragraphs 1 through 27, inclusive, as if fully its set forth. 28. The Complaint fails to state a cause of action against Peifer. 29. The Complaint to Join Additional Defendants fails to delineate any duty on the part of Peifer to any Plaintiff or Defendant. 30. Peifer believes and therefore avers that any claim of Defendant Gemcraft Homes Inc. against Peifer is barred by consent of Gemcraft. 31. Peifer believes and therefore avers that any claim of Defendant Gemcraft Homes Inc. against Peifer is barred by the accord and satisfaction of Gemcraft. 32. Peifer believes and therefore avers that any claim of defendant Gemcraft Homes Inc. against Peifer is barred by the release of Gemcraft. 5 33. Plaintiffs and Defendant Gemcraft voluntary accepted all conditions on the property of the Plaintiffs. 34. Plaintiffs and Defendant Gemcraft were aware of conditions existing on Plaintiffs property and took no action with regard thereto; any and all injuries or damages resulting to them or either of them was a result of their voluntary inaction. 35. Peifer had no duty to any party to this action. 36. Peifer had no privity with Plaintiffs. 37. Peifer was prevented from taking any action to correct any dangerous conditions on Plaintiffs' property by Plaintiffs. 38. Peifer believes and therefore avers that any claims, liabilities or damages to Plaintiffs or Gemcraft are barred by the defense of estoppel. 39. Any harm suffered by Plaintiffs or Gemcraft was a consequence over which Peifer had no control. 40. Liability or claims of Plaintiffs and Gemcraft are barred to the extent that Plaintiffs and/or Gemcraft failed to mitigate alleged damages. 41. All damages alleged in the instant action were caused, in whole or in part by, Plaintiffs' own fault or contributory fault and/or of by Gemcraft fault or contributory fault. 6 WHEREFORE, Peifer requests judgment entered on his behalf with all costs taxed against Plaintiffs or Gemcraft. , P.C. By: Bru e . For a squire Attorney for Additional Defendant Attorney ID #21193 112 Market Street, 6`h Floor Harrisburg, PA 17101 (717)236-9391-phone (717)236-6602-fax bruce@foreman-foreman.com VERIFICATION I verify that the statements made in foregoing documents are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: ith E. Peifer CERTIFICATE OF SERVICE I, Bruce D. Foreman, Esquire, do hereby certify that on this, the 12th day of June, 2007, I served a true and correct copy of the Complaint to Join Additional Defendants, by First Class U.S. mail, postage prepaid, addressed as follows: JoAnne E. Kinzel, Esquire Snyder & Dorer Attorney for Defendant, GemCraft Homes, Inc. 214 Senate Avenue Suite 503 Camp Hill, PA 17011 Donald Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and Goggin Attorney for Liberty Excavators, Inc. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 The Barn Saver 1209 Reading Road Navron, PA 17555 David Fitzsimons, Esquire Martson, Deardorff, William & Otto Attorney for Jeffrey and Barbara Hawkins 10 East High Street Carlisle, PA 17013 Respectfully su itted, FOREMAN & FO MAN, P.C. By: Bruce . F rema , Esquire Attorney for Additional Defendant Attorney ID #21193 112 Market Street, 6"' Floor Harrisburg, PA 17101 (717) 236-9391- phone (717) 236-6602- fax bruce@foreman-foreman.com ` c° ??S) ^' N ? %, ::) -'''; ? r ` ? ? ?? ..r SHERIFF'S RETURN - REGULAR %CASE NO: 2006-06422 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HAWKINS JEFFREY ET AL VS GEMCRAFT HOMES INC ET AL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT TO ADD'L DEFEN. was served upon PEIFER KEITH E the ADD'L DEFENDANT, at 2030:00 HOURS, on the 7th day of March 2007 at 34 WEST BEALE AVENUE ENOLA, PA 17025 KEITH PEIFER a true and attested copy of WRIT TO ADD'L DEFEN by handing to together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 14.40 Affidavit .00 Surcharge 10.00 .00 314?1m1 ?30.40 I Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 03/20/2007 NATIONWIDE INSURRIt By : t- Deputy Sheriff A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-06422 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HAWKINS JEFFREY ET AL VS GEMCRAFT HOMES INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'L DEFENDANT , to wit: BARN SAVER THE but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within WRIT TO ADD'L DEFEN.. On March 20th , 2007 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: So answers- Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas K1' e Dep Lancaster Co 48.93 Sheriff of Cumberland County Postage 1.89 87.82 ? 3?d3?b7 03/20/2007 NATIONWIDE INSURANCE Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-06422 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HAWKINS JEFFREY ET AL VS GEMCRAFT HOMES INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named ADD'L DEFENDANT , to wit: BWB INC but was unable to locate Them deputized the sheriff of DAUPHIN serve the within WRIT TO ADD'L DEFEN. County, Pennsylvania, to On March 20th , 2007 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answers: Docketing 6.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Dauphin County 31.25 Sheriff of Cumberland County 00 56.25 -? 3/2?1p7 03/20/2007 NATIONWIDE INSURANCE Sworn and subscribe to before me this day of , A. D. in his bailiwick. He therefore 1' 95642 SHERIFF'S OFFICE 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 • (717) 299-8200 n SHERIFF SERVICE PLEASE TYPE OR PRINT LEGIBLY. PROCESS RECEIPT, and AFFIDAVIT OF RETURN DO NOT DETACH ANY COPIES. 1 PLAINTIFF/S 2 COURT NUMBER Jeffrey and Barbara Hawkins 06-6422 Civil Term 3 DEFENDANTlS/ 4 TYPE OF WRIT OR COMPLAINT Gemcraft Homes, Inc. and Liberty Excavators, Inc. Writ to Join Add'l Defendantsm SERVE 5 NAME OF INDIVIDUAL. COMPANY. CORPORATION. ETC.. TO BE SERVED. The Barn Saver 6 ADDRESS (Street or RFD, Apartment No., City. Boro. Twp., State and ZIP Codel AT 1209 Reading Road, Navron, PA 17555 7 INDICATE UNUSUAL SERVICEXXMEPUTIZE ? OTHER Now, a 20 1, SHERIFF OF OUNTY, PA., do hereby deputize the S e Ole ?c_ARr County to execute this Writ an0`_ff cefurn h ceof In to law. This depu ation being made at the request and risk of the plaintiff. SHERIFF OF-WAMMIIGO" COUN 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumberland Please mail return of service to Cunberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EC ION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching a,-)y property under within writ may leave same without a watch an, in c stody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to a y plaint Mirein-for any lo;is, destruction or removal of any such property before sheriff's sate thereof 9. SIGNATURE of ATTORNEY or other QRIGIN#TQR M / 110. TELEPHONE NUMBER I11 DATE 2/13/072 12. SEND NOTICE OF SERVICE COPY T AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) Snyder & Dorer, 214 S to Avenue, Suite 503, Camp Hill, PA 17011 CrL t?neii u?? ? SPADE BELOW FUK-UbE UV 5M .K11-t- UNLY - UtJ NU I VVMI t t t%=LUW t Mt* LAVE 13 1 acknowledge receipt of the writ NAME of Authorized LCSO De ty or Clerk 14 Date Received 15 Expiration/Hearing date or complaint as indicated above. I JA C KTE MT_CCTC H E 7-390-23199 V2.1/07 15107 16. 1 hereby CERTIFY and RETURN that I ? have personally served, ave legal evidence of service as shown in "Remarks", ? have executed as shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, company, cor- poration, etc., at the address inserted below by handing a TRUE and ATTESTED COPY thereof. 17. ? I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc, named above. (See remarks below) 18 N3r??e and title ?of individual served (it not shown above) (Relationship to Defendant) 19 ?? ? Servi G...--. ,e e eVAE /,4 - ? 4nev '_ See Remarks Below (No. 30) 20 Address of where served (complete only ifdifferent tha own above) (Street orRFD, Apartment No, City, Boro, Twp 21 Date of Service 22 Time State and Zip Code) AM ?_. /. EDST 23. ATTEMPTS Da . Miless? De . Int. Date Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. Date Miles Dep. Int. nce Costs 24. Adva 25. Service Costs 26 Notary Cert 27. Mi eage/P sta a/N.F 28 Total Costs 29 COST DUE OR REFUND a?yy At 3 5' 150,00 3 .50 t 101-07 R Ju. KtMAMKS: S.T.A. 31 AFFIRMED and subscribed to before me this 34 day of l 20 a /L F. Ul?j ?=r3 ? In The Court of Common Pleas of Cumberland County, Pennsylvania Jeffrey Hawkins et al VS Gemcraft Homes Inc et al vs. The Barn Saver et al SERVE: BWB, Inc No. 06-6422 civil Now, February 2. 2007. I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, , 20 , at o'clock M. served the within upon at by handing to a and made known to copy of the original So answers, the contents thereof. Sheriff of Sworn and subscribed before me this day of 520 COSTS SERVICE MILEAGE AFFIDAVIT County, PA off tff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin HAWKINS JEFFREY & BARBARA vs • BWB INC Sheriff's Return No. 0283-T - - -2007 OTHER COUNTY NO. 06 6422 AND NOW:February 27, 2007 at 9:15AM served the within WRIT TO JOIN ADDITIONAL DEFENDANT upon BWB INC by personally handing to GREG SHOLLEY 1 true attested copy(ies) of the original WRIT TO JOIN ADDITIONAL DEFENDANT and making known to him/her the contents thereof at 400 ADAMS STREET STEELTON, PA 17113-0000 Sworn and subscribed to before me this 28TH day of FEBRUARY, 2007 11 A/ NOTARIAL SEAL MARY JANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept. 1, 2010 So Answers, She1rFt h,A, TE?Q Pa. Sheriff's Costs:$35.25 PAID BY COUNTY CANTREL Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy F: \FI LES\ 12262\12262. I . rep 2\t de Revised 7/9/07 2:55PM 12262.1 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs JEFFREY AND BARBARA HAWKINS, Plaintiffs V. GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., Defendants V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA &q-?4 NO. 06-0427 CIVIL ACTION-LAW THE BARN SAVER and B.B., INC. and KEITH E. PEIFER, Additional Defendants JURY OF TWELVE DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF ADDITIONAL DEFENDANT KEITH E. PEIFER AND NOW, come the Plaintiffs, Jeffrey and Barbara Hawkins, by and through their counsel, MARTSON LAW OFFICES, and avers the following in response to the New Matter of Additional Defendant Keith E. Peifer: 27. The averments of the original Complaint are incorporated and reasserted as if fully set forth. 28. Denied. The averment of Paragraph 28 of New Matter is a conclusion of law to which no response is required. In further response, the original Complaint does not include Additional Defendant Keith E. Peifer as a Defendant. 29-32. Denied. The averments of Paragraphs 29 -32 are directed to parties other than the Plaintiffs. 33. Denied. The averment of Paragraph 33 of New Matter is a conclusion of law to which no response is required by the Pa. R.C.P. 34. Denied. The averment of Paragraph 34 is a legal conclusion to which no response is required by the Pa. R.C.P. To the extent that Paragraph 34 contains information other than a legal conclusion, the averment is so vague, generalized and unspecific as to be unanswerable and therefore does not constitute a valid averment under the Pa. R.C.P. 35. Denied. Paragraph 35 of New Matter is a conclusion of law to which no response is required by the Pa. R.C.P. 36. Denied. Paragraph 36 of New Matter is a conclusion of law to which no response is required by the Pa. R.C.P. 37. Denied. Paragraph 37 of New Matter is a conclusion of law to which no response is required by the Pa. R.C.P. By way of further response, Plaintiffs are without knowledge sufficient to form a belief as to the truth of any averments of Paragraph 37 which are not conclusions of law. 38-41. Denied. The averments of Paragraphs 38 - 41 are conclusions of law to which no response is required by the Pa. R.C.P. WHEREFORE, Plaintiffs respectfully pray that this Court will enter judgment in their favor as requested in the original Complaint and deny any claim of costs against Plaintiffs, and further, that this Honorable Court will grant whichever relief it deems appropriate under the circumstances and Keith E. Peifer, either directly or in liability over on behalf of Defendants Gemcraft Homes, Inc., and Liberty Excavators, Inc., for damages to Plaintiff's property as prayed for in the original Complaint. Respectfully submitted, MARTSON LAW OFFICES By David A. Fitzsimons 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: July, 2009 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Plaintiffs' Reply to New Matter of Additional Defendant Keith E. Peifer was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: JoAnne E. Kinzel, Esquire SNYDER & DORER 214 Senate Avenue Suite 503 Camp Hill, PA 17011 John W. Domberger, Esquire POST & SCHELL, P.C. 17 North Second Street, 12" Floor Harrisburg, PA 17101 Bruce D. Foreman, Esquire FOREMAN & FOREMAN 112 Market Street, Sixth Floor Harrisburg, PA 17101 The Barn Saver 1209 Reading Road Navron, PA 17555 MARTSON LAW OFFICES B ` z- %)-! cia D. Eckenroad C 4. Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 9, 2007 ? ? ? _._, ? ; } ?1 ' ? ?_i`?j i-` _ ~ s`-'' - "v't . ?J 1. ? ,F -; T; .mow . : 57: ? ~ ? . ? ? r -?. r JEFFREY & BARBARA HAWKINS, Plaintiff VS. GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-6422 CIVIL vs. THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, Additional Defendants JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT, BWB, INC. BEFORE HESS, OLER, AND EBERT, J.J. ORDER AND NOW, this / / ` day of July, 2007, following receipt of communication from counsel, the preliminary objections of additional defendant, BWB, Inc., are deemed withdrawn. BY THE COURT, Hess, J. David A. Fitzsimons, Esquire For the Plaintiffs JoAnne E. Kinzel, Esquire For Defendant Gemcraft Homes John W. Dornberger, Esquire For Defendant Liberty Excavators Donald L. Carmelite, Esquire For Additional Defendant BWB, Inc. ??L+ ZA JO -.O The Barn Saver 1209 Reading Road Narvon, PA 17555 Keith Peifer 34 West Beale Avenue Enola, PA 17025 ! . -L Marshall Dennehey Warner Coleman & Goggin By: Donald L. Carmelite, Esquire ID # 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3504 Our File No. 18158-00138 Attorney for Additional Defendant BWB, Inc. JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants V. CIVIL ACTION - LAW THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, JURY TRIAL DEMANDED Additional Defendants PRAECIPE TO WITHDRAW ADDITIONAL DEFENDANT'S BWB, INC.'S PRELIMINARY OBJECTIONS TO DEFENDANT GEMCRAFT HOMES, INC.'S JOINDER COMPLAINT To the Prothonotary: Kindly note on the Docket that Additional Defendant BWB, Inc. has withdrawn its Preliminary Objections to Defendant Gemcraft Homes, Inc.'s Joinder Complaint, and have the same removed from the Court's July 11, 2007 argument list. GOGGIN By: WARNER Dond'WL. Carmelite, Esqu Attorney for Additional Defen anf BWB, Inc. ID# 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3504 Dated: July 9, 2007 JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants V. BWB, INC., : Additional Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Lisa J. Wallae, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this _q_ day of July 2007, served a copy of Additional Defendant BWB, Inc.'s Praecipe to Withdraw Preliminary Objections via First Class United States mail, postage prepaid, unless otherwise specified, as follows: David A. Fitzsimons, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Attorney for Plaintiffs John W. Domberger, Esquire Post & Schell, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 Attorney for Liberty Excavators, Inc. JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Attorney for Gemcraft Homes, Inc. The Barn Saver 1209 Reading Road Narvon, PA 17555 Keith E. Peifer 34 West Beale Avenue Eno'la, PA 17025 isa J. llac - ? O ?- ? ""47 " . l C ? ? ?'?' . ' , ' ?_..._ i rzz r.. {?•, -ern it . ? ?,? t _? +:.a ??1 ??. ?? 3. 7 r w u7 ? c 06HBOO139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, ase No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty.Excavators, Inc., JURY TRIAL DEMANDED Defendants 4 VS. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendant YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended Complaint to Join Additional Defendants and Notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the court without further notice for any money claimed in the Amended Complaint to Join Additional Defendants or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 r 06HB00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Plaintiffs No.: 06-6422 Civil Term vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., JURY TRIAL DEMANDED Defendants vs. The Barn Saver and BWB, Inc. and Keith E. Peifer, Additional Defendants --- v v?.?? a??a .: Va tea..: a?a a?au a, a.aa Vl_L-mil 1 11V1111JAJ, X11%-, 1 V UV11II ADDITIONAL DEFENDANTS AND NOW comes Defendant Gemcraft Homes, Inc. (hereinafter "Defendant Gemcraft"), by its attorney, Joanne E. Kinzel, Esquire, and sets forth the following Complaint to Join Additional Defendants: 1. Plaintiffs are Jeffrey and Barbara Hawkins, adult individuals who currently reside at 1450 Main Street, Mechanicsburg, Pennsylvania 17055. 2. Defendant, Gemcraft Homes, Inc., is a corporation with a principal place of business at 2205-A Commerce Road, Forest Hills, Maryland 21050. I 3. On or about June 26, 2006, a free-standing wall located partially on the Plaintiffs' property and partially on adjacent land recently purchased by Defendant Gemcraft, collapsed and allegedly caused certain damage to the Plaintiffs' realty. 4. As a result of the wall's collapse, the Plaintiffs filed suit against Defendant Gemcraft and Liberty Excavators, Inc. alleging that they were jointly and severally liable for the damage to Plaintiffs' property. (A copy of the Complaint is attached hereto as Exhibit "A".) 5. In response to the Complaint, Defendant Gemcraft filed an Answer denying any liability or responsibility for damages allegedly caused to the Plaintiffs' property. (A copy of Gemcraft's Answer is attached hereto as Exhibit `B".) 6. Shortly before the wall's collapse and before Defendant Gemcraft purchased the property, it was owned by Additional Defendant Keith E. Peifer, an adult individual who resides at 34 W. Beale Avenue, Enola, Pennsylvania 17025. 7. When Additional Defendant Keith E. Peifer owned the property, the wall in question was part of a vintage barn which was located partly on Plaintiffs' property and partly on Mr. Peifer's property. 8. Before the property was sold to Defendant Gemcraft for residential development, the barn had been slated for destruction per township requirements. But before Defendant Gemcraft closed on the property, Mr. Peifer hired Additional Defendant The Barn Saver to dismantle the barn. 9. Additional Defendant The Barn Saver is a corporation, partnership, sole proprietorship or other business entity with a principal place of business at 1209 Reading Road, Navron, Pennsylvania 17555. 2 10. At Additional Defendant Keith E. Peifer's request, employees and representatives of The Barn Saver came onto the property and dismantled all but one wall of the barn. 11. Upon purchasing the property, Defendant Gemcraft hired Defendant Liberty Excavators, Inc. to among other things, demolish the wall and two other structures slated for demolition pursuant to township requirements. 12. Defendant Liberty Excavators, Inc. thereafter hired Additional Defendant BWB, Inc., to demolish the wall and other structures on the property. 13. Additional Defendant, BWB, Inc., is a corporation with a principal place of, business at 400 Adams Street, Steelton, Pennsylvania, 17113. 14. BWB, Inc. had not yet demolished the wall at the time of the incident alleged in Plaintiffs' Complaint: COUNTI GEMCRAFT vs. KEITH E. PEIFER NEGLIGENCE 15. Paragraphs 1 through 14 above are incorporated herein by reference as though set forth at length. 16. Any injuries or damages allegedly suffered by the Plaintiffs are solely the result of the negligence of the former property owner, Additional Defendant Keith E. Peifer, in: (a) hiring and allowing Additional Defendant The Barn Saver to dismantle only part of the barn, thereby destabilizing the remaining wall; (b) failing to inspect the remaining wall to determine if it was stable; (c) failing to oversee Additional Defendant The Barn Saver's work to ensure that they would not create and leave an unstable and dangerous condition/structure upon the land; 3 (d) failing to require Additional Defendant The Barn Saver to stabilize the remaining wall prior to leaving the project site; (e) failing to inform and warn Defendant Gemcraft and the neighboring properties of the unstable and dangerous condition created by Additional Defendant The Barn Saver; (f) failing to have the remaining barn wall demolished so as not to leave a dangerous and unstable structure upon the property. 17. Defendant Gemcraft hereby asserts a claim for contribution and/or indemnity against Additional Defendant Keith E. Peifer, for any and all sums which the Plaintiffs' recover from Defendant Gemcraft, although the, existence of any liability on the part of Defendant Gemcraft is hereby denied. WHEREFORE, Additional Defendant Keith E. Peifer is solely liable to the Plaintiffs, or he is jointly and severally liable, or he is liable over to Defendant Gemcraft for any and all sums which the Plaintiffs recover against it. COUNT II GEMCRAFT vs. THE BARN SAVER NEGLIGENCE 18. Paragraphs 1 through 17 above are incorporated herein by reference as though set forth at length. 19. Any injuries or damages allegedly suffered by the Plaintiffs were solely the result of the negligence of Additional Defendant The Barn Saver in: (a) dismantling only part of the barn and leaving an unstable structure on the.property; (b) failing to inspect the remaining wall to determine if it was stable. (c) failing to support and stabilize the single remaining wall after the other walls had been dismantled; (d) failing to dismantle the entire barn; (e) failing to warn the property owner or abutting property owners of the danger presented by the free-standing wall. 4 20. If, at the time of trial, Defendant is found liable to the Plaintiffs, a liability which is expressly denied, Defendant Gemcraft hereby asserts a claim for contribution and/or indemnity against Additional Defendant The Barn Saver for any and all sums which the Plaintiffs recover against Defendant Gemcraft. WHEREFORE, Additional Defendant The Barn Saver is solely liable to the Plaintiffs, or it is liable over to Defendant Gemcraft for contribution and/or indemnity, or it is jointly and severally liable. COUNT III GEMCRAFT vs. BWB, INC. NEGLIGENCE 21. Paragraphs 1 through 20 above are incorporated herein by reference as though set forth at length. 22. Any injuries or damages allegedly suffered by the Plaintiffs were solely the result of the negligence of Additional Defendant BWB, Inc., in: (a) failing to demolish the free-standing wall in a timely manner; (b) allowing the wall to remain standing when, in the exercise of reasonable care, it knew, or should have known, that the wall was unstable and susceptible to collapse; (c) failing to stabilize the wall until demolition could be scheduled; (d) failing to warn abutting property owners of the dangers presented by the free-standing wall. 23. If, at the time of trial, it is determined that Defendant Gemcraft is liable to the Plaintiffs, a liability which is expressly denied, then Defendant Gemcraft hereby asserts a claim 5 for contribution and/or indemnity against Additional Defendant BWB, Inc. although the existence of any liability on the part of Defendant Gemcraft is specifically denied. WHEREFORE, Additional Defendant BWB, Inc. is solely liable to the Plaintiffs, or it is liable over to Original Defendant Gemcraft for contribution and/or indemnity, or it is jointly and severally liable. COUNT IV GEMCRAFT vs. BWB, INC. BREACH OF CONTRACT 24. Paragraphs I through 23 above are incorporated herein by reference as though set forth at length. 25. BWB had a written contract with Defendant, Liberty Excavators, pursuant to which BWB was required to remove several existing structures from the property Defendant Gemcraft was developing, one of which was the barn wall in question. (A copy of the contract i attached hereto as Exhibit "C".) 26. As the general contractor, and because it could not proceed with the development of the property without the aforesaid structures being removed from the land, Defendant Gemcraft was a third party beneficiary of the contract between Liberty and BWB. 27. Any injuries or damages allegedly suffered by the Plaintiffs are the result of BWB, Inc.'s breach of contract in: (a) failing to demolish the free-standing wall in a timely manner; (b) allowing the wall to remain standing when it knew, or should have known, that the wall was unstable and susceptible to collapse; (c) failing to stabilize the wall until demolition could be scheduled; 6 (d) failing to warn abutting property owners of the dangers present by the free-standing wall. 28. If, at the time of trial, it is determined that Defendant Gemcraft is liable to the Plaintiffs, a liability which is expressly denied, then Defendant Gemcraft hereby asserts a claim I for contribution and/or indemnity against Additional Defendant BWB, Inc. WHEREFORE, Additional Defendant BWB Inc. is solelyliable to the Plaintiffs, or it is I' liable over to Defendant Gemcraft for contribution and/or indemnity, or it is jointly and,severally liable. Respectfully submitted, LAW OFFICE OF SNYDER & DORER Date: July 18, 2007 By: JoAnne E. Kinzel, Esquire Identification No. 55453 Attorney for Defendant, Gemcraft Homes, Inc. 7 ? ?? ?b?? ? Day lei A. FlusIlnons. Esquire 1.D. No. -41-" \IARTSON DEARDORFF WILLIA\lS & OTTO 10 East High Street Carlisle, PA 1,013 ('17) 243-3341 r? JEFFREY & BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS CUMBERLAND COL'.NTY, PEN?.1S'x'L,,'ANIA Plaintiffs vs. : NO. 06-6422 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., JURY TRIAL DEMANDED Defendants CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 DaN id A. Fitzsimons, Esquire 1. D. No. -22 \IARTSON DEARDORFF «'ILLIANIS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 JEFFREY & BARB.-BRA HAWKS S, IN THE COURT OF CO.'WNION PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. : NO. 06-6422 GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., JURY TRIAL DEMANDED Defendants CIVIL ACTION - LAW COMPLAINT 1. Plaintiffs, Jeffrey and Barbara Hawkins, are adult individuals who currently reside at 1450 Main Street (Lisburn), Mechanicsburg, PA 17055. 2. Defendant, Gemcraft Homes, Inc. (hereinafter "Gemcraft") is a corporation with an office at 2205-A Commerce Road, Forest Hill, MD 21050. Gemcraft maintains a local office at 4309 Linglestown Road, Harrisburg, PA 17112. 3. Defendant, Liberty Excavators, Inc. (hereinafter "Liberty"), is a Pennsylvania Corporation, that maintains an office at 4402 Gettysburg Road, Camp Hill, PA 17011. 4. Gemcraft owns and is presently developing property that abuts the property owned by Plaintiffs. Gemcraft purchased and owned the remains of a 50' x 75' barn, ten feet of which traversed the Plaintiffs' property. This included a 35 foot, unsupported brick end wall of the partially demolished barn. 5. On April 14, '006 Mark Vaughn of Liberty knocked on the Plaintiffs' door and regUcsted permission to post sortie signs related to Genicratt's pending deb clopnicnt of the land abutting two sides of Plaintiffs' property. 6. Mr. Vaughn calked the property with Barbara Hawkins who pointed out several unsafe conditions on or near property owned by the Plaintiffs, including the 35-foot high brick wall. Barbara inquired as to who would be removing the barn wall and its foundation, since they posed obvious safety hazards. Considerable demolition debris including bricks, nails, wood with lead paint, and other garbage was also strewn throughout the foundation of the barn. 7. Mr. Vaughn and Barbara Hawkins also discovered several rusty and leaking 55 galloon drums marked with motor oil and antifreeze labels on Gemeraft's property. 8. Plaintiffs, along with their next door neighbor Mr. Ray Deremer, met on April 17, 2006 with Linda Hockenberry, Community Complaints Director for Lower Allen Township. After being advised of the conditions on the property and reviewing photographs of the property, Ms. Hockenberry contacted DEP. 9. During the first week of May, 2006 Jeffrey Hawkins and Ray Deremer noticed employees of Gemcraft and Liberty on site. The employees included Jeff Rhodes, Field Supervisor for Gemcraft, along with Don Larkin and Larry Fink, Project Supervisors from Liberty. 10. Mr. Hawkins and Mr. Deremer pointed out the unsafe brick wall, the 55 gallon drums, and asbestos shingles on Gemcraft's property. 11. At that time, Jeff Rhodes and Don Larkin assured Plaintiffs that the mess would be cleaned up and the land would be appropriately graded and seeded. Mr. Rhodes and Mr. Larkin assured all present that they \% anted to be good neighbors. LibcrtN- advised dir. i-lax\ kills and dlr. Deremer to speak \\ ith MIN of its supervisors if the\ had any questions. 12. Mr. Hawkins advised Mr. Larkin and Mr. Fink that if Liberty needed to come onto Plaintiffs' property all they needed to do was ask and inform us what work was going to be done. 13. DEP issued an inspection report and violations notice to Jeff Rhodes of Gemcraft on May 9, 2006. The report lists Gemcraft as the owner of the property and notes that Mr. Rhodes was present during DEP's investigation. A copy of the notice is attached as Exhibit 1 and incorporated by reference. 14. From May 11, 2006 through June 16, 2006, Jeff Hawkins repeatedly asked Larry Fink and John, another supervisor from Liberty, as to when the barn wall was going to be removed. Their responses were always, "Next week." In addition, Mr. Hawkins contacted Don Larkin and Jeff Rhodes on several occasions in order to determine the date of the wall removal. Mr. Larkin responded that BWB Demolition would be doing the clean up "very soon," while Mr. Rhodes failed to respond in any meaningful way. 15. In mid-June, Don Larkin indicated that Liberty had contracted with BWB Demolition Company to remove the brick wall and several other outbuildings located near Plaintiffs' property. BWB Demolition also would be cleaning up all of the demolition debris, except for brick and stone. 16. During the week of June 12, 2006, BWB Demolition Company entered Plaintiffs' property without notice and removed fence rails attached to a fence post on Plaintiffs' property, leaving rusty nails exposed. In addition, someone spray painted "BWB PA One" on the brick wall as well as on the other outbuildings. 1 O11 Ju11e 16. 2006. Jett Ha\vklns contacted Doll Lark111 alld delllallded tilt %N all be taken down by ,]Lille 2,. 2006, or that he \\ollld be forced to take le`al action a-alllst them. Mr. Ha\vkins also requested that the parties meet at his property to discuss the steps necessary to remove the wall. 18. On June 23, 2006, Plaintiffs met with Don Larkin and Greg Sholly of BWB Demolition Company. The parties discussed the removal of Gemcraft's brick wall. Plaintiffs asked Mr. Sholly to try to leave about 6 to 8 feet of the wall for privacy purposes, and Mr. Sholly advised that the entire wall would likely come down during demolition. In addition, the parties discussed the grading of the land to insure lateral support of trees owned by the Plaintiffs, and the removal of all demolition waste from Plaintiffs' property and the foundation of the barn. 19. Plaintiffs granted Liberty and BWB Demolition Company permission to come onto Plaintiffs' property to remove Gemcraft's brick wall. 20. On June 26, 2006 Plaintiff's returned home to discover that Gemcraft's brick wall had collapsed onto Plaintiffs' property, destroying a shed and several mature trees, and covering a large section of Plaintiffs' lawn with bricks and other debris. 21. Plaintiffs worked for several hours on June 26, 2006, disabling a live, sparking electrical line, picking brick from the grassy areas of the lawn, and attempting to salvage the contents of the shed. 22. On June 27, 2006 Plaintiffs contacted Jeff Rhodes and Don Larkin to inform them that the brick wall had collapsed. Plaintiffs demanded that the mess be cleaned up immediately and that damages relative to the loss of Plaintiffs' lawn, trees, landscaping, and privacy be addressed. 2) 3. On July 5, 2006, Plaintiffs met \yith :baron Whecler of Gemcraft and Don Larkin of Liberty. Liberty agreed to remove the collapsed brick \\all. shed and fence debris, as \\ ell as the destroyed trees and stumps in the immediate area of the collapsed brick wall. In addition, Liberty agreed to spread topsoil in the area of the brick wall and perform minor grading modifications per Plaintiffs' directions. 24. Liberty and Gemcraft agreed to construct a privacy berm at the location previously occupied by the brick wall. Liberty and Plaintiffs completed a written agreement on July 5, 2006 establishing the responsibilities of Liberty. A copy of the agreement is attached as Exhibit 2 and incorporated by reference. 25. At the July 5, 2006 meeting, Gemcraft agreed to landscape the berm and to restore the lawn, trees, landscaping and privacy destroyed by the collapse of the brick wall. 26. On July 8, 2006, Liberty inadequately attempted to clean up Plaintiffs' property, but left a significant amount of debris, destroyed a wall that the parties had agreed would remain, and buried the electrical line to the former shed. 27. On July 17, 2006, Plaintiffs sent a letter via certified mail, e-mail and fax to Jeff Rhodes that outlined the agreement to restore Plaintiffs' trees, landscaping, lawn and privacy. The contents of the letter were consistent with the discussions of the July 5, 2006 meeting and subsequent conversations between Jeffrey Hawkins and Mr. Rhodes in which Gemcraft agreed to restore Plaintiffs' lawn, trees and privacy. A copy of that letter is attached as Exhibit 3 and incorporated by reference. 28. At the direction of Jeff Rhodes, Plaintiffs secured a quote from Black Landscape Contracting to develop a landscaping plan and estimate for restoration of Plaintiff's lawn, trees, landscaping and priN ac} . Plaintiffs' shared the kluote \\ ith Gemcraft upon returning from acation in mid august. 29. During the first week of August, Liberty began construction of a privacy berm while Plaintiffs Nvere away on vacation. Liberty failed to contact Plaintiffs regarding construction specifics of the privacy berm as promised verbally and in a July 18, 2006, e-mail to Plaintiffs. Liberty did not complete its construction of the privacy berm nor did it place the privacy berm in the agreed upon location. In addition, a significant amount of debris remained on Plaintiffs' property including bricks, carpeting, wood, metal, and garbage. 30. During the remaining part of August, numerous phone calls made by Plaintiffs to Jeff Rhodes were unreturned. In addition, no one from Liberty contacted Plaintiffs regarding the clean up and construction of the privacy berm. 31. Due to Gemcraft and Liberty's failure to abide by their agreements and Liberty's inadequate attempts to restore Plaintiffs' property, Plaintiffs filed a complaint with District Magistrate Judge Clement on September 7, 2006. 32. At the request of Jeff Rhodes the parties held a meeting at Plaintiffs' property on September 12, 2006, after Defendants had been served with the Complaint. Liberty agreed to correct the privacy berm and complete the grading by October 1, 2006, but Liberty again failed to follow through with its promise. 33. At all times relevant to the events in this Complaint, Defendants exercised custody, control and'or ownership over the adjoining land and the structure which continued onto Plaintiffs' land. 34. At all time relevant to the events in this Complaint, Liberty was the agent of Gemcraft working within the scope of its authority. I 5. Prior and subsequent to the collapse of the barn N\ all and resulting damage to Plaintiffs' property, both Gemcraft and Liberty, by their actions and representations, conlu-ined their control of the land and structures in question and their joint and indIN idual commitment to prevent the damage to Plaintiffs' property, and after June 26, 2006, to remedy the damage entirely. COUNT I - NEGLIGENCE Jeffrey & Barbara Hawkins v. Gemcraft Homes, Inc. 36. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 37. Gemcraft failed to remove or temporarily shore the 35 foot, unsupported brick wall which resulted in Plaintiffs suffering damages, including actual physical damages to the property, loss of privacy, loss of use and quiet enjoyment of property, loss of use of shed, and interference with the peaceful possession of the real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Gemcraft Homes, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT II - NEGLIGENCE Jeffrey & Barbara Hawkins v. Liberty Excavators Inc. 36. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 37. Liberty failed to remove or temporarily shore the 35 foot, unsupported brick wall which resulted in Plaintiffs suffering damages, including actual physical damages to the property. loss of priN acy. loss of use and quiet enjoyment of property, loss of use of shed, and interference xcith the peaceful possession of the real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Liberty ExcaNators, Inc., in an amount NN hich does not exceed the statutory arbitration limit, plus interest, costs and delay damages. COUNT III - BREACH OF CONTRACT Jeffrey & Barbara Hawkins v. Gemcraft Homes, Inc. 38. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 39. Gemcraft failed to satisfy its contractual obligation to remove the 35 foot, unsupported brick wall. Gemcraft's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. 40. Gemcraft failed to satisfy its contractual obligation to install a privacy berm, perform minor grading, spread topsoil, and restore Plaintiffs' trees, landscaping, lawn, and privacy. Gemcraft's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. WHEREFORE, Plaintiffs demand judgment against Defendant Gemcraft Homes, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. l: 0U'\T IV- BREACH OF CONTRACT Jeff rev & Barbara HaNNkins %. Liberty Excavators, Inc. 41. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 42. Liberty failed to satisfy its contractual obligation to remove the 35 foot, unsupported brick wall owned by Gemcraft. Liberty's breach resulted in Plaintiffs suffering damages in excess of $12,000.00, including actual damages, court costs, loss of privacy, loss of use of property, loss of use of shed, and interference with peaceful possession of real estate. 43. Liberty failed to satisfy its written obligation to install a privacy berm, perform minor grading, and spread topsoil over the lawn area destroyed by the collapse of the brick wall. WHEREFORE, Plaintiffs demand judgment against Defendant Liberty Excavators, Inc., in an amount which does not exceed the statutory arbitration limit, plus interest, costs and delay damages. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 717-243-3341 Counsel for Plaintiffs Dated: December 12, 2006 ,\`, [:A1 III () I'l_'N\SYl \ A' L)H'AlI i .1E\ I' 011 l':\\ II,o\ \11A I' \L. l'h(-) 1 L_( ; 1U\ BL IZL-A[ l)F I_:\Nl? IZEOVI I\6 :\\D WAS IT MAN:V,11AUA I GENERAL 1'SPECTION REPORT Tope of In+pechon ----- \1 NI IdcutilicatiUn Number Fnln lime Date % it Tillie Date F.icilk% Incident Namc and I ocatiun \lunicipalil? l',,:ncr .';d at Main ?t,?., .,„ .r.:: .i.1 ?.. •?..?... •..• ;i .- bounty Name. Address of Responsible 0016A Gem Craft Homes Jeff Rhodes, Field Super isor i 2205-A Commerce Rd. Forest Hill, NID 21050 Telephone (410) 893-8458 1 itle Owner Interviewed Q Yes ? No OBSERVATIONS AND COMMENTS: Jonathan Chripczuk and Mejpn Laudenslager of the Department investigated a complaint of dumping and abandoned drums of liquid on 4;2812006. Present from Lower Allen Township was Linda Hockenberry, the complaints coordinator. Jonathan Chripczuk conducted a follow-up site visit on 5.9/2006. Jeff Rhodes of Gem Craft Homes was present at the time. The findings of both visits are included in this report. The following were observed: 1. The weather was clear and calm, approximately 50 degrees F. 2. The foundation/ lower level of a barn was observed. Many of the stall walls of the barn were still intact. Also observed in the foundation were piles Construction & Demolition waste, mainly consisting of wood beams and brick. Also included was a small amount of metals. 3. According to a 4/25' `2006 telephone conversation with the complainant, the barn was recently demolished However, the northern wall of the barn was not demolished. The wall is approximately 20 feet tall and 30 feet long. Several cracks were observed in the wall. 4. Seven 55-gallon drums were observed on the site. The drums were in adequate condition and no leaking or staining was observed around the drum area. Two of the drums appeared to be full and two. drirns were partially full. One partial drum and one full drum had old "Drydene" motor oil labels. One full drum had an antifreeze label. One partial drum had no label. All labels on the drums were old and partially worn off and in bad shape. 5. Approximately 30-50 waste tires were observed on the site 6. Several large metal tanks were observed on site. The tanks are presumed to be left over from a carpet cleaning operation. 7. During the follow-up visit on 5;9, 2006, it was observed that some of the scrap metal had been removed by j Inchidcd shingles. The shln5les appeared to contain asbestos. RECOMMENDATIONS: 1. The Department recommends proper disposal of the seven 55-gallon drums on site. .-\ny drums with material should be disposed of hased on the materials contained in the drums. Generator knowledge of the drums may be adequate to determine the contents of cacti drum. If generator knowledge is not av al I able, laboratory sampling may be necessary_ Please forward disposal receipts to the Departnicnt_ _ 1 2. Any waste on site should be disposed of at a pCrmltted disposal facility. Scrap metal nlay be taken to a -? F.,•},; 1.; * 1 \'Ild. AI1\' ill !)!o':< lit he '.ised is Tall 1111 .lull IS Ilk)[ COIISIdcl:d 1\asl;,. I)Illl,: n';1011,11 itilllh?:l' Is 1110, C01lsldCI1:Ll CIe:Ill 1111 and ?Ilotdd he \)I ;Il ;l ;.11111111 l)e11111t!c?l t0 .l?cepl ?. )ll?Il'll?llt)Il & l)CI',IoIltloIl Please 1\)r\\,11-d all\ \hip\)sal ;'ecClpts to lilt 1?ep?11•1111e111. ?. .V"hestos-c?)nt;linin`- nlat? Ills should he lLilldled h\ .1 ??rtitied ISbestOS contractor. 1 he Uepartnlent therefore I.,xoIlltllcllds that the shill"les i)e inspected w dcternlirle 111j)IiC,lb1lit? to state air LItialitr r0,u1atiC,ns. d ally disposal receipts to if the material is 1?)und to be Re??ulated asbestos-Containim, Material. please l'orw. -11 ' the Demirtnlent. A filet sheet is included \\ Ith this report that explains the asbestos program. VIOLATIONS: 1. 35 P.S. Section 6018.610(1): It shall be unla\\ fill for anv person or municipality to dump or deposit, or permit the d11111ping or depositing, of any solid waste; onto the Surface of the ground or underground or into the waters of the Commonwealth, by any means, unless a permit for dumping of such waste has been obtained n_ ..-1 1l..,1;+.. E) A 1.. dI t; ..vui u- -.f-I.....u 1, F.v..v...., -- ..-......,.....,....». X.--, -. .- ...-J .-.J •-O-'-•'--• -..-...r• --•'-"• --...... ?.. associated with normal fanning operations as defined by this act from such permit requirements. 2. 35 P.S. Section 6018.610(2): It shall be unlawful for any person or municipality to construct, alter, operate, or utilize a solid waste storage, treatment, processing or disposal facility without a permit from the department as required by this act or in violation of the rules and regulations adopted under this act, or orders of the Department, or in violation of an terns or condition of an permit issued b the Department. 3. 35 P.S. Section 6018.610(4): It shall be unlawful for any person or municipality to store, collect, transport, process, treat, beneficially use or dispose of, or assist in the storage, collection, transportation, processing, treatment, beneficially use of disposal of, solid waste contrary to the rules or regulations adopted under this act, or orders of the Department, or any term or any condition or any permit, or in a manner as to create a public nuisance or to adversely affect the public health safety and welfare. 4. 35 P.S. Section 6018.610(9): It shall be unlawful for any person or municipality to cause or assist in the violation of any provision of this act, any rule or regulation of the Department, any order of the Department or an term of condition of an ennit. 5. 35 P.S. Section 6018.302(a): It shall be unlawful for any person or municipality to dispose, process, store, or permit the disposal, processing, or storage of any residual waste in a manner which is contrary to the rules and regulations of the Department or to any permit or to the terms or conditions of any permit or any order issued b the Department. 6. 35 P.S. Section 6018.301: No person or municipality shall store, transport, process, or dispose of residual waste within this Commonwealth unless such storage, or transportation, is consistent with or such processing or disposal is authorized by the rules and regulations of the Department and no person or municipality shall own or operate a residual waste processing or disposal facility unless such person or municipality has first obtained a pen-nit for such facility from the Department. sample Collected sample Numbers Analyses ? Yes © No Inspector Name Inspector signature Headquarters Date SCRO Jonathan Chri czuk Person Interviewed Name Signature of Person Interviesced Title Date Jeff Rhodes Mailed Field Supervisor i "this document is official notification that a representative of the Department of Environmental Protection inspected the { above-mentioned facility. The findings of the inspection are shown above and on any attached pages. Violations ! discovered as a result of this inspection are indicated. Violations may also be discovered upon examination of the results of laboratory analyses, review of pertinent documents and further investigation. Notification will be forthcoming if such j violations are discovered. page_ 0 f _? c ee Commonweaith of Pennsylvania 9 Department of Environmental Prctecticn ASBESTOS PROGRAM FOR CONTRACTORS WORKING IN PENNSYLVANIA Pennsylvania's asbestos program includes federal and state regulations to help protect the public from exposure to large amounts of airborne asbestos. The following is a brief summary of the regulations. Information in this fact sheet does not supercede any federal state or local requirements. WHAT IS ASBESTOS? Asbestos is a generic term used to describe a variety of natural mineral fibers. From the early 1930s until the 1970s, manufacturers added asbestos to products to strengthen them and to provide heat insulation and fire resistance. Asbestos also resists corrosion and is a poor conductor of electricity. Because few products contained all of these properties, asbestos was widely used in the construction of homes, schools and other buildings. HOW CAN PEOPLE BE EXPOSED TO ASBESTOS? Most people are exposed to small amounts of asbestos in their daily lives. However, if materials containing asbestos are disturbed - for example sawed, scraped or sanded into a powder - asbestos fibers are more likely to become airborne and inhaled into the lungs. HOW IS ASBESTOS REGULATED IN PENN- SYLVANIA? Because asbestos, in certain forms, has been determined to cause serious health problems, the Department of Environmental Protection (DEP) regulates the removal, collection, transportation and disposal of Asbestos-Containing Materials (ACM). DEP's Air Quality program has adopted and enforces the federal Environmental Protection Agency's (EPA) 40 CFR Part 61 Subpart M, the Asbestos National Emission Standard for Hazardous Air Pollutants (NESHAP) regulations, as amended on November 20, 1990. Should a project be subject to the NESHAP regulations, a minimum ten-day notification of the project is required by both EPA and DEP. The DEP does not regulate the removal of ACM from private residences unless the residence is an apartment with five or more units. The State Department of Labor and Industry enforces Pennsylvania's Asbestos Occupations Accreditation and Certification Act of 1990 (Act 194 and Act 161), which requires at least a five-day notification of any asbestos project and certification for the following asbestos occupations: contractor, inspector, management planner, project designer, supervisor and worker. Call the Department of Labor and Industry at (717) 772-3396 for more information regarding Act 194 and Act 161. Contact the municipality where the project is located to find out if there are any local regulations. WHAT ARE SOME IMPORTANT DEFINITIONS IN THE ASBESTOS NESHAP REGULATIONS? • Friable ACM is material containing more than one percent asbestos that, when dry, can be crumbled, pulverized or reduced to a powder by hand pressure. • Nonfriable ACM is material containing more than one percent asbestos that, when dry, cannot be crumbled, pulverized or reduced to a powder by hand pressure. It is divided into two categories: Category I includes asbestos-containing packings, gaskets, resilient floor coverings or Vinyl Asbestos Floor Tile, and asphalt roofing products. Category II includes any material, except Category I nonfriable ACM, such as transite siding shingles, galbestos, concrete-type piping and other ACM concrete-type products. • Regulated Asbestos-Containing Materials (RACM) - (a) friable ACM; (b) Category I nonfriable ACM that has passively become friable by water damage, fire damage or weathering; (c) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, drilling or abrading; and (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized or reduced to a powder in the course of demolition or renovation operations. • Demolition - the wrecking or taking out of any load- supporting structural member of a facility together with any related handling operations or the intentional burning of any facility. • Renovation - altering a facility or one or more facility components in any way, including the stripping or removal of RACM from a facility component. • Facility - any institutional, commercial, public, industrial or residential structure, installation or building. A residential building with four or fewer ' dwelling units is not a facility unless it is part of an 3c ;N - j 1 y r stltut,on.3 _-- -'-i,e'.a, ,, ubl,_, ?r rJLStn JI s1, utu e A s -g;e -es de^t a: budIrg .oath `cur cr `ewe' Jwe•, ig ur is s iot 13 reg, tIated ac,l;ty ur•jer the NESHAP "egulahcr j, ass t s part of an rstal atcr '.oh ;h ,,is pre,,j; sly sJb,ect ;o NESHAP regulations or ts main .:se s rot res,dent:al • installat,on - any group of buildings cr structures at a single demolition cr renovation site that are under the control of the same owner or operator. An installation may consist of two or more residential structures. WHAT DO I NEED TO KNOW BEFORE REMOVING ASBESTOS IN PENNSYLVANIA? St-tte regulations stipulate that it is illegal for anyone to engage in any asbestos occupation (worker, supervisor, project designer, inspector, management planner or contractor) without proper certification from the PA DLI. These requirements, along with a five-day notification prior to the start of any abatement or demolition project where ACM is present, are outlined in the Pennsylvania Asbestos Occupations Accreditation and Certification Act of 1990 (Acts 194 and 161). Call the PA DLI at 717-772-3396 for more information regarding these requirements. The building must be thoroughly inspected for ACM prior to any renovation or demolition. If the amount of friable ACM that will be removed is more than 260 linear feet, 160 square feet or 35 cubic feet, the project falls under the federal NESHAP regulations. T. ,,s requires that a notification be postmarked or hand delivered to DEP and EPA at least TEN WORKING DAYS prior to the start of the project. All demolitions of regulated facilities (as defined above) also require a ten-day notification to DEP and EPA, regardless of the presence of asbestos. Additional regulations exist for demolition and renovation of any building containing ACM in Philadelphia and Allegheny counties. In Philadelphia County, call 215-685-7576. For questions in Allegheny County, call 412-578-8133. It is important to contact the appropriate office if your project is located in either of these counties. WHAT ARE THE PROCEDURES FOR NOTIFICATION? Notification for projects in Pennsylvania should be made on the "Asbestos Abatement and Demolition/Renovation Notification" form (revised veb `" C'? sod 3 'C05; A `arm .^ay be _cta ?ed by ccntactr0 t,"e CEP isccstcs _f'ce it " 0_75; -r by contact rg tie nea,est CEP .g'cna1 fri, e 5ied N2 C',N t-Ie fc,m a'sc car be nted frc-n the D E P .'!eb ste `curd at ,%,w de Deb state ra L s Chc_?se Air Topics, then Al; DEP Programs •A-Z`, and ,rder the A heading zhcose Asbestos! Complete instruct;ors are given with the form The notce must be del vered by the U S Postal Service, commercial delwery service or hand delivery FACSIMILES ARE NOT ACCEPTABLE. WHAT IF I NEED MORE INFORMATION? To obtain copies of the NESHAP regulations, the notification form or other information. please contact your regional DEP office: Southeast Regional Office - 484-250-5920 for work in Bucks, Chester, Delaware and Montgomery Counties. Northeast Regional Office - 570-826-2511 for work in Carbon, Lackawanna, Lehigh, Luzerne, Monroe, Northampton, Pike, Schuylkill, Susquehanna, Wayne and Wyoming Counties. Southcentral Regional Office - 717-705-4702 for work in Adams, Bedford, Berks, Blair, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lancaster, Lebanon, Mifflin, Perry and York Counties. Northcentral Regional Office - 570-327-3638 for work in Bradford, Cameron, Centre, Clearfield, Clinton, Columbia, Lycoming, Montour, Northumberland, Potter, Snyder, Sullivan, Tioga and Union Counties. Southwest Regional Office - 412-442-4000 for work in Armstrong, Beaver, Cambria, Fayette, Greene, Indiana, Somerset, Washington and Westmoreland Counties. Northwest Regional Office - 814-332-6940 for work in Butler, Clarion, Crawford, Elk, Erie, Forest, Jefferson, Lawrence, McKean, Mercer, Venango and Warren Counties. For work done in Philadelphia County, contact Air Management Services at 215-685-7576. For work done in Allegheny County, contact Allegheny County Health Department at 412-578-8133. For more information, visit DEP's Web site at www depweb.state pa us, Keyword: "Air Topics." Commonwealth of Pennsylvania Department of Environmental Protection Edward G. Randall, Governor Kathleen A. McGinty, Secretary An Equal Opportunity Employer 2700.FS-DEP2101 Rev. 1,7006 Recycled Paper, LIBERTY EXCAVATORS, INC. •I ul\ 5. _'006 .Ieffrev B. & Barb Hawkins 1 150 Maid Street .\Ierhanirshurg. PA 1705.5 Reference: Collapsed Barn Wall at fellow Breeches Farm Liberty Project #206011 Dear Jeff & Barb: Site Dc%clol?mcnt Contractor rnhIIII;,P\ I- II Thank you for meeting with us today. This letter serves to summarize our discussion as well as reduce our verbal agreement to writing. Liberty- Excavators will enter your property for the purpose of removing the barn wall debris, shed debris, fence debris, and stumps in the immediate area of the collapsed will as directed by you. We will dispose of this material in accordance with PADEP requirements. Weather permitting, this will occur on Friday, July 7. 2006. If weather delays are encountered, the work will be performed on the first weekday suitable weather is present. We will also re-spread topsoil in the area damaged by the barn wall and perform minor grading modifications per your direction as far as they are permitted by Lower Allen Township and standard construction standards for drainage. In the course of this grading, a privacy berm will be constructed at the location previously occupied by the barn wall. The construction of the privacy berm will be completed upon completion of grading the building lots adjacent to your property. This grading will not disturb the lateral support of your adjoining land. Landscaping of the berm, planting of any trees or shrubbery, lawn restoration, and replacement of the shed and fence will be by other contractors secured by Gemcraft Homes or yourself. Upon satisfactory completion of the clean up and grading, you agree to release Liberty Excavators, Inc. from any personal claims for property damages related to the collapse of the barn wall. We are providing the above proposal in the spirit of helping a neighbor resolve an unfortunate situation created by others, and do not admit nor assume any responsibility for causing it. Please sign this letter below and fax it back to 717 -7 31- 163.1 by noon on Thursday July 6, so that we may proc with the work it e schedule specified above. /1112 Sias; Anted Nair Date SignAurJ,,Pr1_1_1_t_e'd Name Date ,It-ffrev 11- Hawkins 13;irh Hawkins Sincerely. LIBERTY E'XC VXP.)IZS. INC. Dun I,nrkin Exhibit 2 "???ti' hh,??1??:. l;i?m?r;lt'f Hunl? I' r.l ?,:lnn?ll. I;??m?raff {{unl??; ?:IC?11 ???1?-'i?li.?l'. (;inl?.'C;itf E{?'Iri??? July 17, 2006 Mr. Jeff Rhodes Gemcraft Homes 2205-A Commerce Road Forest Hill, MD 21050 VIA CERTIFIED MAIL/ EMAIL/ FNX RE: Clean Up and Restoration of the Hawkins' Property Mr. Rhodes: I am following up on our discussion this past Friday and the meeting held on July 61h with Aaron Wheeler from Gemcraft Homes ("Gemcraft") and Don Larkin of Liberty Excavators, Inc ("Liberty"). As agreed during the July 6th meeting and pursuant to a written agreement, Liberty did the following work on July $ch: Moved brick from my yard to within the footprint of the barn. Removed a crushed shed and its concrete foundation. Removed two large, crushed trees including the stumps. > Spread clean fill over most of the disturbed area in my yard. Although there remains a large pile of brick on my property, Mr. Larkin indicated that Liberty would be removing the debris late this week or early next week when it completes the grading of Gemcraft's property, which abuts the southern aspect of my property. Aaron Wheeler stated that Gemcraft would be willing to have Liberty construct a "beauty/privacy" berm along the southern portion of my property. We also discussed potentially using Black's Landscaping to plant some trees and restore the lawn that was destroyed. Black's Landscaping is two doors down from the construction site and is currently under contract with Liberty to do seeding of the swales/drainage basins. Mr. Wheeler's offer to plant trees and restore our lawn is consistent with the agreements we made during phone discussions over the past few weeks. So as to avoid any confusion between the obligations of Liberty and Gemcraft, I recommend that the parties define who will be responsible for what. My take is that Liberty expects to be relieved of its responsibilities when it completes the final rough grading of the property and the construction of the privacy berm. If this is not the case, the parties need to let me know. In Exhibit 3 addition, I need to have a general idea as to what the final rough grade and the privacy berm will look like before it is constructed. With regard to the planting of trees and the restoration of my lawn, I propose that Gemcraft do the following: > Agree in writing to use Black's Landscaping or other acceptable landscaping company for the planting of trees reasonably sufficient to restore the privacy lost by the destruction of trees, shrubs, and the shed. > Agree in writing to use Black's Landscaping or other acceptable landscaping company for the restoration of the destroyed lawn with quality top soil and grass seed. This would include a final grading of the land. > Agree in writing to have the restoration work completed by September 30, 2006. nally, I would note that there are two large trees on my property that will need lateral support. If the present grade of Gemcraft's land is continued in this area, those trees will not have adequate lateral support. The elevation of the land in this area has been the same for over 150 years. Any disruption of the land that removes the lateral support of my property will be a violation of my common law right to lateral support and is an action I will challenge. Your prompt response is anticipated and will be appreciated. I would like to have a signed written agreement with Gemcraft completed by July 26, 2006. If you have any questions please do not hesitate to contact me at 717-697-0277 or 717-720-4078. Respectfully, ? r i Hawkins" cc: Mr. Don Larkin -, PAGE 02 VERIFICATION We, Jeffrey Hawkins and Barbara Hawkins, hereby verify that we have reviewed the foregoing document and state that to the extent that the foregoing document contains facts supplied by or known to us, they are true and correct to the best of our knowledge, information and belief. We understand that false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. OA&Id.^#Ng? Je y ns Barbara Hawkins CERTIFIC.kTE OF SERVICE kND NONN', this 12.1 day of December, 2006, I hereby certif, that I have served the foregoing Complaint on the follo-vving by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: JoAnne E. Kinzel, Esquire LAW OFFICE OF SNYDER & DORER 214 Senate Avenue Suite 503 Camp Hill, PA 17011 Counsel for Defendant Gemcraft Homes, Inc. AND NOW, this 12`h day of December, 2006, I hereby certify that I have served the foregoing Complaint on the following by depositing a true and correct copy of same in the United States mail, certified mail, return receipt requested, addressed to: Liberty Excavators, Inc. c/o Mr. Don Larkin 4402 Gettysburg Road Camp Hill, PA 17011 \ r David A. Fitzsimons, Esquire v4,,:) 06HB-00139 LAW OFFICE OF SNYDER & DORF.R 214 SEN %TE AN ENl E, SUITE 503 CANtP HILL. PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCR-AFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, i6se No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., JURY TRIAL DEMANDED Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth the following pages, you must take action within twenty (20) days after this Answer with New Mat and New Matter Under Rule 2252(d) to Complaint and Notice are served by entering a writs appearance personally or by attorney and filing in writing with the court your defenses or objections the claims set forth against you. You are warned that if you fail to do so, the case may proceed with( you, and a judgment may be entered against you by the court without further notice for any mon claimed in the Answer with New Matter and New Matter Under Rule 2252(d) to Complaint or for a other claim or relief requested by the Plaintiff. You may lose money or property or other rig] important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 r 1 06 HB-00139 LAVE OFFICE OF SNl DER & DORF.R 213 SENATE AX E:NI E. St ITE .503 CA.NtP HILL, PA 17011 TELEPHONE Nt FIBER: (-1') 731-0988 I ATTORNEY FOR DEFENDANT, GENICRAFT HoNIES, INC. IN THE COURT OF COMMON PLEAS CUtiIBERLAND COUNTY, PENNSYLVANIA I Jeffrey & Barbara Hawkins, Plaintiffs Case No.: 06-6422 Civil Term VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., URY TRIAL DEMANDED Defendants ANSWER WITH NEW MATTER AND NEW MATTER UNDER RULE 2252(D) OF I DEFENDANT, GEMCRAFT HOMES, INC. TO PLAINTIFFS' COMPLAINT AND NOW comes the Defendant, Gemcraft Homes, Inc., by its attorney, JoAnne E. Kinzel, Esquire, and sets forth the following Answer to the Plaintiffs' Complaint: 1. - 2. Paragraphs 1 and 2 of the Complaint are admitted. 3. Paragraph 3 of the Complaint is directed to another Defendant. Therefore, no response is required of this Defendant. 4. The allegations in paragraph 4 of the Complaint are admitted in part and denied in part. It is admitted that Gemcraft owns and is presently developing the property that abuts the property owned by the Plaintiffs. The remaining allegations in paragraph 4 of the Complaint are denied as stated. On the contrary, at the time Gemcraft signed the purchase I a,Jrecnlent, the property contained a barn that \N as slated for destruction per to\\ nship f requirements. Before Gemcraft clo.ed on the property. the ner allowed a conlpam callcd Barn Sayers to dismantle the barn. Barn Savers dismantled most of the barn, but Iett 011e X\ all I standing. 5.- S. After reasonable investigation, Defendant is without knowledge or information I sufficient to form a belief as to the truth of the allegations in paragraphs 5 through 8 of the Complaint. Therefore, they are denied and strict proof is demanded. By way of further Answer, Gemcraft was not the owner of the property at the times referenced in paragraphs 5 I through 8 of the Complaint. 9.-11. After reasonable investigation, Defendant is without knowledge or information I sufficient to form a belief as to the truth of the allegations in paragraphs 9 through 11 of the Complaint. Therefore, they are denied and strict proof is demanded. To the extent that a further response is deemed necessary, said allegations are denied generally pursuant to Pa.R.C.P. § 1029(e). 12. The allegations in paragraph 12 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. 13. The allegations in paragraph 13 of the Complaint concern a written report which speaks for itself. By way of further answer, the reports reference to Gemcraft as the owner of the property is in error. On the contrary, Gemcraft was not the owner of the property at the time the report was issued. 14. The allegations in paragraph 14 of the Complaint are denied generall\ pursuant to Pa.R.C.P. §10'9(e). 15. The allegations in paragraph 15 of the Complaint are admitted to the extent that I Liberty Excavators contracted with BWB Demolition Company to remove the brick Nall. 16. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 16 of the Complaint. Therefore, they are denied and strict proof is demanded. 17. - 21. Paragraphs 17 through 21 of the Complaint are directed to another party. Therefore, no response is required from this Defendant. To the extent that a response is deemed necessary, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 17 through 21. Therefore, they are denied and strict proof is demanded. 22. - 23. The allegations in paragraph 22 and 23 are denied generally pursuant to Pa.R.C.P. §1029(e). 24. In response to the allegations in paragraph 24 of the Complaint regarding a written agreement between Plaintiffs and Defendant Liberty, Gemcraft a- ers that the document speaks for itself. The remaining allegations in paragraph 24 of the Complaint are denied generally to Pa.R.C.P. §1029(e). I ?I I >. The allc?,ations in paragraph of the Complaint are denied gencrall- pursuant to Pa.R.C.P. §1029(e). 26. The allegations in paragraph 26 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. To the extent that a response is deemed necessary, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 26 of the Complaint. Therefore, they are denied and strict proof is demanded. 27. The allegations in paragraph 27 of the Complaint are admitted to the extent that Plaintiff sent a letter to Gemcraft and that a copy of said letter was attached to the Complaint as Exhibit 3. The remaining allegations in paragraph 27 of the Complaint are denied generally pursuant to Pa.R.C.P. § 1029(e). 28. The allegations in paragraph 28 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 29. The allegations in paragraph 29 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. To the extent that a response is deemed necessary, after reasonable investigation. Defendant is without knowledge or information I sufficient to form a belief as to the truth of the allegations in paragraph 29 of the Complaint. Therefore. they are denied and strict proof is demanded. {? e Y I '0. To the extent the allegations in paragraph 10 of the Complaint are directed to (jemcratt. the,,- are denied generally pursuant to Pa.R.C.P. I0-20(e). 31. Paragraph 31 of the Complaint is admitted to the extent that Plaintiff filed a district justice Complaint. The remaining allegations in paragraph 31 are denied generally pursuant to Pa.R.C.P. § 1029(e). 32. The allegations in paragraph 32 of the Complaint are denied generally pursuant to Pa.R.C.P. §1029(e). 33. The allegations in paragraph 33 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are denied. 34. The allegations in paragraph 34 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are denied. On the contrary, Liberty Excavators was at all times relevant hereto an independent contractor and not an agent of this Defendant. 35. The allegations in paragraph 35 of the Complaint are conclusions of law to which no response is required. To the extent that a response is deemed necessary, said allegations are specifically and generally denied. i COLAT I 36. In response to paragraph 36 of the Complaint. Defendant incorporates herein by reference paragraphs 1 through 35 above as though set forth at length. 37. The allegations in paragraph 37 of the Complaint are specifically and generally denied. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. COUNT II 36 -37. [sic] Paragraphs 36 and 37 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. COUNT III 38. In response to paragraph 38 of the Complaint, Defendant incorporates herein by reference paragraphs 1 through 35 above as though set forth at length. 39. -40. The allegations in paragraphs 39 and 40 of the Complaint are specifically denied. On the contrary, there was no contract between the Plaintiffs and Gemeraft concerning and of' the matters set forth U1 the Complaint. Therefore. Ilk) cause of action exists I for breach of contract between the Nainntiffs and this Defendant. WHEREFORE. Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. COUNT IV 41.- 43. Paragraphs 41 through 43 of the Complaint are directed to another party. Therefore, no response is required of this Defendant. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. NEW MATTER 44. Plaintiffs' Complaint fails to state a cause of action against Gemcraft for of contract. 45. Any injuries or damages allegedly suffered by the Plaintiffs were the result of their failure to take precautions to protect their property from a percei"ed danger which partially existed on their own property. 46. An itijurics or damages allegedly suffered by the Plaintiffs ?Ncre the result of their failure to object to the partial dismantling of the barn by the oxyner of the propert\ . hcith Peiffer. or b\- Barn Savers. kyho created and permitted the dangerous condition set ti)rth in the Complaint to exist. 47. Any injuries or damages allegedly suffered by the Plaintiffs were the result of the negligence of the property owner. Keith Peiffer, in permitting Barn Savers to partially dismantle the barn and create the dangerous condition set forth in the Plaintiffs' Complaint. 48. Any injuries or damages allegedly suffered by the Plaintiffs were the result of the negligence of Barn Savers in partially dismantling the barn and creating the dangerous condition set forth in the Plaintiffs ' Complaint. WHEREFORE, Plaintiffs' Complaint should be dismissed with costs in the Defendant ' s behalf sustained. Respectfully submitted, LAW OFFICE OF SNYDER & DORER ti By: JoAnne B', Kinzel, Esquire Identification No. 55453 Attorney for Defendant, Gemcraft Homes, Inc. Date: February 8, 2007 061-113-00139 LAW OFFICE OF SNIi'DER & DORER 214 SENATE AvENI'E, St ITE 503 C:,tNIP HILL, PA 17011 TELEPHONE Nt:MBER: (717)',31-0988 ATTORNEY FOR DEFENDANT, GENICRAFT HOMES, INC. IN THE COURT OF CO'.\,INION PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants ATION I, Tom Scannell, Gemcraft Homes, Inc. , verify that the statements made in foregoing Answer with New Matter and New Matter Under Rule 2252(d) of Defendant, gemei Hanes, IIIeto Plaintiffs' Complaint, which are within the personal knowledge of th undersigned, are true and correct, and as to the facts based on the information of others, th undersigned, after diligent inquiry, believe them to be true. And further, this Verification i signed on the recommendation of my attorneys, who advise me that the allegations an language in this document are required legally to raise issues for resolution at trial, by th Court, or by continuing investigation and preparation for trial. I understand that some of thes, allegations may prove inappropriate after investigation and trial preparation are complete and leave the determination of these matters to my attorneys on their advice. I understand that all statements herein are made subject to the penalties of 18 Pa. C.S. A §4904, relating to unsworn falsifications to authorities. Dated: I L- .' , y e u z ase No.: 06-6422 Civil Term Y TRIAL DEMANDED Tom Scannell, Gemcraft Homes, Inc. ; e t 06 H B-00139 LAW OFFICE OF Sr1'DER & DO)RER 214 SENA FE AN ENt E, St in 503 CA.NIP HILL, PA 17011 TELEPHONE `t .NIBER: (717) 731-0988 .ATTORNEY FOR DEFENDANT, GENICRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, `ICase No. 06-6422 Ci- it Term Plaintiffs I VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Y TRIAL DEMANDED Defendants TE OF SERVICE JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Answer with New Matter and New Matter Under Rule 2252(d) of Defendant, Gemcraft Homes, Inc., to Plaintiffs' Complaint to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto 10 East High Street Carlisle, PA 17013 John W. Domberger, Esquire Post & Schell 17 North 2nd Street 12`h Floor Harrisburg, PA 17101 Date: February 8, 2007 1, JoAnne E. Kinzel, Esquire Attorney for Defendant, Gemcraft Homes, Inc. \,,, b ? c Subcontract Agreement Liberty Excavators, Inc. Date: April 24, 2006 4402 Gettysburg Road Project :Name: Yellow Breeches Farm Camp Hill PA 17011 Project No: 206011 Telephone: 717-761-S461 Fax: 717-731-4634 To: BR'B, Inc. Project Location: Cumberland County 400 Adams Street Lower Allen Township Steelton, PA 17113 Greg Sholly Telephone: 717-939-3679 Fax: 717-986-8352 Demolition of structures including removal of demolition debris from site. Clean fill such as brick, block, & concrete to remain on site for the•lump sum price of Thirteen Thousand, Six Hundred Forty Dollars ($13,640.00.) Commencement Date of Work is 1<Ab <,QNT1 N GENT [,1N? J? 6F c ?;.?vE4 RESu>rrS r?A a .. REau?REia t o l=FS?3 S S w1094MC, ()Rq NOT+F%CATiON 7D PA Notes: 1. A satisfactory insurance certificate must be submitted and approved prior to start of work. 2. Retainage to be withheld at 0%. 3. The following is a list of Attachments that are included as part of this agreement: Attachment A - Insurance Requirements Attachment B - Partial Release of Lien Attachment C - Final Waiver of Claims and Liens Attachment D - AIA G702/G703 Invoicing Requirements Invoice must state Project Name and Project Number IMPORTANT: Invoice to be submitted before the 20d' of the month. Payment can be expected as received from Owner. Subcontractor must supply Certificate of Insurance covering Workers Compensation and Public Liability, which are to be returned with signed copies of this Subcontract. No payments will be issued until signed Subcontract and Certificate of Insurance have been received. Sign and Return Both Copies within Ten (10) Days - Executed Copy Will Be Returned The terms and conditions on the reverse side are apart of this agreement. Printed Name and Title Via Accepted: 8V'J 1 NC. N of Co any tho z Signature Date Liberty Excavators, Inc. Achard R. Ev s, resident Rio-o? Date TERMS AND CONDITIONS OF CONTRACT BETWEEN LIBERTY EXCAVATORS, :NC. ("we" "us", AND "our") AND SUBCONTRACTOR OR SELLER NAMED ON OTHER SIDE ("you" AND "your") 1. You will perform your Work and furnish the required materials and labor when notified and in such manner that others connected with the Project will not be delayed or hindered. Time of your performance and delivery is of the essence. All Federal, State, and Municipai Taxes due in connection with your Work shall be paid by you unless otherwise provided herein. 3. Compensation to you for extra labor or materials which are not included herein shall be payable by us only if authorized by us in writing prior to your furnishing the extra labor or materials. 4. We must have all required certificates of insurance before you perform any work at the jobsite. If 3 performance bond is required, you will deliver it to us from a surety acceptable to us within 48 hours after the execution of this Contract. 5. All debris and refuse created by your Work will be removed daily from the jobsite. If you fail to do so and if we remove it, then you will be back charged for our expenses. If multiple Contractors are involved, the pro-ration shall be at our discretion. 6. You represent that you have reviewed the Contract Documents between us and the Owner and you assume toward us, with respect to your Work, the same obligations that we have assumed toward the Owner. In the event of a conflict between this Contract and our Contract with the Owner, the Contract between us and the Owner, including referenced drawings and specifications, shall control. 7. To the fullest extent permitted by law, you shall indemnify and hold us harmless from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of your work under this Subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury,, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by your negligent acts or omissions, or the negligent acts or omissions of your Sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist is to a party or person described in these terms and conditions. In claims against any person or entity indemnified under these terms and conditions by your employees, your Sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under these terms and conditions shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for you or your Sub-contractors under workers' compensation acts, disability benefit acts or other employee benefit acts. 8. As a separate covenant, you waive the right to file a mechanics' lien against the Project. This waiver shall extend to and be applicable to extra work and materials supplied to the Project. You will give us a complete acknowledged release of liens when your Work is completed or when you have delivered your materials. If you do file a lien, you authorize any attorney of any Court of Record to appear for you and mark the lien satisfied and a copy of this Warrant of Attorney shall be sufficient authority. 9. You will comply fully with all applicable laws and regulations. This includes Prevailing Wage Laws (if applicable) and the standard set forth in the Rules and Regulations promulgated under the Construction Safety Act and other OSHA-related provisions to the extent applicable to your Work. You will indemnify and save us harmless on account of your failure to do so. 10. You represent that you have title to all materials furnished or to be incorporated into the Work. 11. You will not enter into direct agreements with the Owner or Architect relative to new or additional work for the Project unless previously approved by us in writing. 12. You will comply with the applicable provisions of the Civil Rights Act of 1964 and Executive Order No. 11246, as amended. You represent that you do not discriminate based on race, color, religion, sex, national origin, or non job-related handicaps. 13. Neither the performance of this Contract or the right to receive payment shall be assigned by you without our prior written consent. 14. The Contract is subject to Owner/Architect approval of you and all your Subcontractors and suppliers, and you shall provide us with their identity and your financial arrangements with them, if required. 15. Should you, at any time, fail to provide sufficient skilled workmen or sufficient quantities of materials of proper quality, fail to prosecute the Work with promptness and diligence, fail to perform any agreements herein contained, or should any of your workmen engage in any form of work stoppage or should honor any picket lines, then, without prejudice to any other rights we may have, we may, upon three (3) days' notice to you, provide workmen at your expense, or terminate this Contract and take over all material and equipment at the jobsite, and complete the Contract at your expense, holding you liable to the extent that funds otherwise due you under this Contract are insufficient to reimburse us the cost of such completion. You shall, prior to commencing any Work, provide us with copies of all Collective Bargaining Agreements to which you are a party and which relate to the Project. 16. In addition, we shall have the right to terminate this Contract in the event of your insolvency or commission of an act of bankruptcy, filing of a petition in bankruptcy by or against you, appointment of a receiver for you or your assignment for the benefit of creditors. The acceptance of performance or material after the occurrence of any of the foregoing shall not constitute a waiver thereof. 17. If we should, at any time, determine that you are not paying your employees, Subcontractors, or suppliers, we shall have the right to do so directly by withholding payments from you; and, if we thereby expend more monies than are due you, you shall be liable to us for such excess upon demand. You shall indemnify and save us harmless, including attorney and paralegal fees and court costs, on account of any demand made upon us on account of our payment bond occasioned by your failure to make appropriate payments. 18. This Contract contains the complete agreement between the parties relating to the subject matter and it may only be changed by a writing signed by both parties. 19. The failure of us to insist upon complete performance or the waiver by us of your failure to comply shall not be deemed a waiver with respect to any subsequent act or failure to act by you. 20. Contractor may apply any payments otherwise due Subcontractor hereunder to any other indebtedness, liability or obligation of Subcontractor to Contractor whether under this Agreement or any other agreement or circumstance. r n • 106HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. ? . r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, ase No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants vs. . The Barn Saver, BWB, Inc. and Keith E. Peifer, Additional Defendants Y TRIAL DEMANDED JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Amended Complaint to Join Additional Defendants to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto Goggin 10 East High Street Carlisle, PA 17013 John W. Dornberger, Esquire Post & Schell 17 North 2nd Street, 12th Floor Harrisburg, PA 17101 Bruce D. Foreman, Esquire Foreman & Foreman, P.C. 112 Market Street, 6th Floor Harrisburg, P A 17101 Date: July 18, 2007 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 The Barn Saver 1209 Reading Road Navron, PA 17555 JoAnne E. Kinzel, Esquire Attorney for Defendant, Gemcraft Homes, Inc. -? ?' ;'? __ ? ? ?? ,_},? / ? LiJ ` '- :' ?. `. f.? ? `J .. '"'?r ;? =-C; John W. Dornberger, Esquire Attorney ID #69293 POST & SCHELL, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 Jdornberger@postschell.com (717) 731-1970 JEFFREY & BARBARA HAWKINS, Plaintiffs V. GEMCRAFT HOMES, INC. and LIBERTY EXCAVATORS, INC., Defendants of-f (6,1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ? y1,2 NO. 06-Y4 JURY TRIAL DEMANDED CIVIL ACTION -LAW OBJECTIONS AND RESPONSES OF DEFENDANT LIBERTY EXCAVATORS, INC. TO THE REQUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT GEMCRAFT HOMES, INC. Defendant Liberty Excavators, Inc. ("Defendant" or "Liberty"), by and through its attorneys, Post & Schell, P.C., hereby serves the following Objections and Responses to the Request for Production of Documents of Defendant Gemcraft Homes, Inc. ("Gemcraft") as follows: 1. GENERAL OBJECTIONS 1. Liberty objects to Gemcraft's document requests to the extent that they seek discovery of information or materials which (i) are protected by the attorney-client privilege, (ii) were prepared or obtained in anticipation of litigation, (iii) were prepared or obtained for the benefit and at the direction of counsel, (iv) constitute work product or mental impressions of counsel, (v) are protected from disclosure by the self-evaluation privilege, the critical self- CPH 390282vI analysis privilege or the audit privilege, and/or (vi) are protected by any other applicable privilege. 2. Liberty objects to Gemcraft's document requests, including the instructions, to the extent that they seek information or materials beyond the scope of permissible discovery under the Pennsylvania Rules of Civil Procedure and to the extent they exceed the requirements of the Pennsylvania Rules of Evidence. 3. Liberty objects to Gemcraft's document requests to the extent that they ask Liberty for records equally available to Gemcraft. In particular, Liberty objects to each document request to the extent that it seeks information already in the possession of Gemcraft, and/or is readily obtainable by Gemcraft from a source other than Liberty, that is more convenient, less burdensome and less expensive. 4. Liberty objects to Gemcraft's document requests to the extent that they seek information or documents previously provided to Gemcraft by Liberty or some other entity or party. 5. Liberty objects to Gemcraft's document requests to the extent that discovery is continuing. These responses are offered without prejudice to Liberty's right to supplement these responses should more complete or additional information be developed through the course of additional investigation, analysis and discovery which may indicate that a response provided herein requires supplementation or amendment under the Pennsylvania Rules of Civil Procedure. 6. Liberty objects to Gemcraft's document requests to the extent they are overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of relevant, admissible evidence. -2- 7. Liberty objects to Gemcraft's document requests to the extent that they seek information and/or documents which are neither relevant to the subject matter involved in this action nor reasonably calculated to lead to the discovery of admissible evidence. 8. Subject to these objections, Liberty objects and answers as follows: II. SPECIFIC OBJECTIONS AND RESPONSES 1. See attached. 2. See attached. 3. See General Objections above. Defendant produces herewith all non-privileged and discoverable documents responsive hereto. 4. See General Objections above. Defendant produces herewith all non-privileged and discoverable documents responsive hereto. 5. See General Objections above. Defendant produces herewith all non-privileged and discoverable documents responsive hereto. 6. See attached. 7. See General Objections above. Defendant produces herewith all non-privileged and discoverable documents responsive hereto. Respectfully submitted, POST & SCHELL, P.C. John Dornberger, PsquimJ Atto ey ID #69293 17 North Second Street, 12`h Floor Harrisburg, PA 17101 (717) 731-1970 Dated: AuguA , 2007 -3- VERIFICATION I, John W. Domberger, Attorney for Defendant Liberty Excavators, Inc., do hereby swear and affirm that the facts and matters set forth in the foregoing document are correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: August C' 2007 Subcontract Agreement Liberty Excavators, Inc. 4402 Gettysburg Road Camp Hill PA 17011 Telephone: 717-761-8461 Fax: 717-731-4634 Date: April 24, 2006 Project Name: Yellow Breeches Farm Project No: 206011 To: BWB, Inc. 400 Adams Street Steelton, PA 17113 Greg Sholly Telephone: 717-939-3679 Fax: 717-986-8352 Project Location: Cumberland County Lower Allen Township Demolition of structures including removal of demolition debris from site. Clean fill such as brick, block, & concrete to remain on site for the lump sum price of Thirteen Thousand, Six Hundred Forty Dollars ($13,640.00.) Commencement Date of Work is Moo 1r2996: Tt N ?? Gs~N7'.._ Cl?l . +4ECi;lPT_ ..pfi ,Ft??4tr5T0,$ St Ru q AF-6 uVr6. A nl p fZf ou•RE i o W 694 wa OM >\?0 T -FICA-ti-OM. iU 4 Notes: 1. A satisfactory insurance certificate must be submitted and approved prior to start of work. 2. Retainage to be withheld at 0%. 3. The following is a list of Attachments that are included as part of this agreement: Attachment A - Insurance Requirements Attachment B - Partial Release of Lien Attachment C - Final Waiver of Claims and Liens Attachment D - AIA G702/G703 Invoicing Requirements Invoice must state Project Name and Project Number IMPORTANT: Invoice to be submitted before the 20'h of the month. Payment can be expected as received from Owner. Subcontractor must supply Certificate of Insurance covering Workers Compensation and Public Liability, which are to be returned with signed copies of this Subcontract. No payments will be issued until signed Subcontract and Certificate of Insurance have been received. Sign and Return: Both Copies within Ten (10) Days - Executed Copy Will Be Returned The terms and conditions on the reverse side are apart of this agreement. Accepted: Liberty Excavators, Inc. N?st?e of Co any tho iz Signature Richard R. Ev s, resident Printed Name and Title (/ILE t-TILC3. D B:V4- 5 -= 66G Date TERMS AND CONDITIONS OF CONTRACT BETWEEN LIBERTY EXCAVATORS, INC. ("we", "us", AND "our") AND SUBCONTRACTOR OR SELLER NAMED ON OTHER SIDE ("you" AND "your") 1. You will perform your Work and furnish the required materials and labor when notified and in such manner that others connected with the Project will not be delayed or hindered. Time of your performance and delivery is of the essence. 2. All Federal, State, and Municipal Taxes due in connection with your Work shall be paid by you unless otherwise provided herein. 3. Compensation to you for extra labor or materials which are not included herein shall be payable by us only if authorized by us in writing prior to your furnishing the extra labor or materials. 4. We must have all required certificates of insurance before you perform any work at the jobsite. If a performance bond is required, you will deliver it to us from a surety acceptable to us within 48 hours after the execution of this Contract. 5. All debris and refuse created by your Work will be removed daily from the jobsite. If you fail to do so and if we remove it, then you will be back charged for our expenses. If multiple Contractors are involved, the pro-ration shall be at our discretion. 6. You represent that you have reviewed the Contract Documents between us and the Owner and you assume toward us, with respect to your Work, the same obligations that we have assumed toward the Owner. In the event of a conflict between this Contract and our Contract with the Owner, the Contract between us and the Owner, including referenced drawings and specifications, shall control. 7. To the fullest extent permitted by law, you shall indemnify and hold us harmless from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of your work under this Subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by your negligent acts or omissions, or the negligent acts or omissions of your Sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in these terms and conditions. In claims against any person or entity indemnified under these terms and conditions by your employees, your Sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under these terms and conditions shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for you or your Sub-contractors under workers' compensation acts, disability benefit acts or other employee benefit acts. 8. As a separate covenant, you waive the right to file a mechanics' lien against the Project. This waiver shall extend to and be applicable to extra work and materials supplied to the Project. You will give us a complete acknowledged release of liens when your Work is completed or when you have delivered your materials. If you do file a lien, you authorize any attorney of any Court of Record to appear for you and mark the lien satisfied and a copy of this Warrant of Attorney shall be sufficient authority. 9. You will comply fully with all applicable laws and regulations. This includes Prevailing Wage Laws (if applicable) and the standard set forth in the Rules and Regulations promulgated under the Construction Safety Act and other OSHA-related provisions to the extent applicable to your Work. You will indemnify and save us harmless on account of your failure to do so. 10. You represent that you have title to all materials furnished or to be incorporated into the Work. 11. You will not enter into direct agreements with the Owner or Architect relative to new or additional work for the Project unless previously approved by us in writing. 12. You will comply with the applicable provisions of the Civil Rights Act of 1964 and Executive Order No. 11246, as amended. You represent that you do not discriminate based on race, color, religion, sex, national origin, or non-job-related handicaps. 13. Neither the performance of this Contract or the right to receive payment shall be assigned by you without our prior written consent. 14. The Contract is subject to Owner/Architect approval of you and all your Subcontractors and suppliers, and you shall provide us with their identity and your financial arrangements with them, if required. 15. Should you, at any time, fail to provide sufficient skilled workmen or sufficient quantities of materials of proper quality, fail to prosecute the Work with promptness and diligence, fail to perform any agreements herein contained, or should any of your workmen engage in any form of work stoppage or should honor any picket lines, then, without prejudice to any other rights we may have, we may, upon three (3) days' notice to you, provide workmen at your expense, or terminate this Contract and take over all material and equipment at the jobsite, and complete the Contract at your expense, holding you liable to the extent that funds otherwise due you under this Contract are insufficient to reimburse us the cost of such completion. You shall, prior to commencing any Work, provide us with copies of all Collective Bargaining Agreements to which you are a party and which relate to the Project. 16. In addition, we shall have the right to terminate this Contract in the event of your insolvency or commission of an act of bankruptcy, filing of a petition in bankruptcy by or against you, appointment of a receiver for you or your assignment for the benefit of creditors. The acceptance of performance or material after the occurrence of any of the foregoing shall not constitute a waiver thereof. 17. If we should, at any time, determine that you are not paying your employees, Subcontractors, or suppliers, we shall have the right to do so directly by withholding payments from you; and, if we thereby expend more monies than are due you, you shall be liable to us for such excess upon demand. You shall indemnify and save us harmless, including attorney and paralegal fees and court costs, on account of any demand made upon us on account of our payment bond occasioned by your failure to make appropriate payments. 18. This Contract contains the complete agreement between the parties relating to the subject matter and it may only be changed by a writing signed by both parties. 19. The failure of us to insist upon complete performance or the waiver by us of your failure to comply shall not be deemed a waiver with respect to any subsequent act or failure to act by you. 20. Contractor may apply any payments otherwise due Subcontractor hereunder to any other indebtedness, liability or obligation of Subcontractor to Contractor whether under this Agreement or any other agreement or circumstance. r• 1. Site Development Contractor LIBERTY 4402 Gettysburg Road EXCAVATORS, INC. Camp Ha PA 17011 717-761-8461. Fax: 717-731-4634 \/ Proposal Mr. Tom Scannell PROPOSAL SUBMITTED TO PHONE 410-8938458 DATE February 27, 2006 Gameratt Homes FAX 410 UZ-7370 STREET JOB NAME 2205 Commerce Road Yellow Breeches Farm CITY, STATE AND ZIP CODE JOB LOCATION Forest HI, MD 21050 Lower Allen Township, Cumberland Courdy ENGINEER Mellott Engineering, Ina We hereby submft spedficatlons and estimates for: Yellow Breeches Farm Scope of work for the above referenced pro)ed We propose to tumish all labor, equipment and material necessary to complete the following: See attached Price Proposal Breakdown & Special Provisions We Propose hereby to hi rish material and labor - complete In.aocordance with the above speafioations, for the sun of four hrndred nkhely orre thousand five hundred and ffly-five dollars and 051109 008am ($491.555.05). Payment to be made as follows: __ ..... ,1 % oer.monthdnteredMllrae-mM apply our oast due Invoices .. All material Is guaranteed to be as spec6ed.' Ati work to be completed in a wxkmanMm morw according to standard practices. Any alteration or deviation from speaficatlons inmA ing extra casts vA be execUled orgy upon written orders and will become an extra ctrarge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry tire, tomado and other necessary insurance. Our workers are fully covered by Workman's ComperwWon Insurance. Authorized i\ Signalise DDN ?--- Estimator Acceptance of Proposal - The above prices,speaficsfions and corxliVotis.s and accepted. PI Bare a construction contract based on this proposal. Sigrhature Date of Acceptance: 1 p 3 D db G Signature 2:& JSuCsznsl ?? ?ro? c e.?• 1 to r1 a.5 c/? G?ORIGINAL. - SIGN A RETURN 02/27/2006 10:26 U029 Yellow Bmo6is Farm Rev 2 **+ Liberty Excavators, Inc. Biditem Description BID TOTALS Quantity Units Unit Price Bid Total 210 CLEARING & GRUBBING 2.000 AC 6,100.00 12,200.00 215 BUIIAING DEMO : 1.000 LS 21,000.00 21,000.00 221 CONSTRUCTION ENTRANCE 1.000 EA 1,500.00 1,500.00 225 SEDIMENT BASIN : 1.000 EA 6,800.00 6,800.00 227 SEDIMENT TRAP 1.000 EA 2,400.00 2,400.00 229 ANTI SEEP COLWS 4.000 EA 625.00 2,500.00 230 TEMPORARY RISEN 2.000 EA 2,750.00 5,500.00 232 S75 LINED SWALE : 249.000 IF 4.85 1,207.65 233 C125 124 SWALU 200.000 LF 7.10 1,420.00 240 30" SILT FENCE W% LTE BACKS 1,552.000 LE 2.50 3,880.00 245 SUPER SILT FENCE 94.000 LE 1025 963.50 260 SEED AND MULCH,DISTURBED AREA 44,835.000 ' SY 0.23 10,312.05 E&S AND SUBTOTAL $69,683.20 300 STRIP/ STOCKTOPiOLLPAN 8,930.000. CY 2.10 18,753.00 310 CUT/F1L L PANS : • ' 20,184.000 CY 2.45 49;450:80 315 COMPACTION TES'i m 1.000 LS 4,900.00 4,900-00- 320 RESPREAD TOPSO#L, 4" THICK 4,578.000 CY 3.05 13,96190 EXCAVATION SUBTOTAL $87,06610 400 C010= TO EXITIING SANITARY 1.000 EA 2,000.00 2,000.00 402 SANITARY MANHOLES 9.000 EA 2,300.00 20,700.00 410 8" SDR35 1,563.000 LF 30.00 46,890.00 420 6" SDR35 1,102.000 LF 28.00 30,856.00 435 LATERAL FIITINGS&STAKES 25.000 EA 165:00 4,125.00 440 BYPASS PUMP LOT 12 SANITARY 1.000 IS 1,500.00 1,500.00 450 RECONNECT LOT #12 LATERAL 1.000 LS 700.00 700.00. 480 PATCH PAVEMENT 24.000 SY 115.00 2,760.00 "490 TEST SANFI"ARY 1,563.000 LF 130 2,031s90 . 495 MAINTAIN & PROTECT TRAFFIC .1.000 LS 1,850.00 1,8500 SANITARY SEWER SUBTOTAL $113,412.90 ' 500 CONNECT TO EX19MG STORM 1.000 EA 200.00 200'.00 510 STORM INLET. 10.000 EA 1,700.00 17,000.00 520 FLARED END SECTION 6.000 EA 245.00 1,470.00 535 18" SBCPP 405.000 LF 3525 14,276.25 537 18" COMBO PIPE 45.000 LF 49.25 2,216.25 540 18" CMP 395.000 LF 34.00 13,430.00 550 18" RCP 5.000 LF 160.00 800.00 560 24" CMP 50.000. LF 41.75 2,087.50 570 RIP RAP APRONS 70.000 TN 41.00 2,870.00 I 02/2712006 10:26 L6029 Yellow Breeches Farm Rev 2 *** Lxbe Excavators, Inc. Biditem Description BED TOTALS Quantity STORM SEWER SUBTOTAL Units Unit Price Bid Total $54,350.00 800 FINEGRADE ASPHALT PATH • 120.000 SY 4,75 570.00 802 WALKING PATH. STONE & ASPHALT 120.000 Sy. 34.'00 4,080.00 810 FINEGRADE STREETS 5,410.000 SY 1.70 9,197.00 816 6" 2A SUBBASE - STREETS 5,410.000 SY 5.55 30,025.50 820 3" BCBC 5,410.000 SY 8.65 46,796.50 830 1.5" WEARING 5,410:000 SY 5.30 28,673.00 832 ROADSIDE SWALES 2,520.000 LF 6.50 16,380.00 •ONSITB PAVING/SWALE SUBTOTAL $135,722.00 837 TRAFFIC CONTROL FOR PADOT WORK 1.000 LS 1,875.00 1,875.00 838 ENTRANCE CURB/MEDIAN 745.000 LF 29.00 7,105.00 840 FINEC3RADE PADOT PAYING 85.000 SY 3.25 276.25 845 PADOT CURB 85.000 SY 41.50 3,527.50 860 TOPSOIL ISLAND 15.000. CY 16.00 240.00 PADOT PAYING /CURB SUBTOTAL _ $13,02335 BASE BID TOTAL $473,258.55 900 CLEAN OUT BAS114S 350.000 CY 8.25 2,887.50 905 INFILTRATION BIWS 450.000 LF 1850 8,325,00 908 OUTLET STRUCTURES 2.000 EA 2,875.00 5,750.00 910 RESTABIT IZE BASINS 5,800.000 SY 0.23 1,334.00 ALTERNATE SWM CONVERSION SUBTOTAL $18,296.50 Bid Total ?? $491,555.05 SPECIAL PROVISIONS Yellow Breeches Fann Upon acceptance, please forward applicable financing information to our office, which can Include verification of the funding source or the established line of credit for the project. This proposal has been prepared oh the basis of material prices available to us on the date of the proposal and will remain firm up to and including March 17, 2006. After March 17, 2006, we reserve the right to increase our price(s)-at such time as the actual costs of material(s) increai e(s). We have used plans prepared by Mellott Engineering, Inc. The drawings are numbered and dated as follows for yellow Breeches Farm: Sheet # Description Date Revised 1 of 8 Cover Sheet 03/22104 09/29105 2 of 8 i_xlsting Features & Demolition 03/22/04 07111/05 3 of 8 Preliminary Subdivision Plan 03/22104 09/29105 4 of S Grading & Utility .03122/04 02/01/06 5 of 8 PubG¢ Road'A&B` Profiles 03/22104 02101/06 6 of 8 Erosion Control Plan 03422104.. 10/25/05 7 of 8 E&S end Construction Details 03122!04 10/25/05 8 of 8 Sanitary Sewer Details 03/22/04 07111/05 HOPI Highway Occupancy Plan - Local Road 03/22104 NIA HOP2 Highway Occupancy Plan - Sanitary Sewer 03/22/04 WA Additional information utilized in the preparation of this proposal: CAD files provided by Mellott Engineering, inc. to Liberty Excavators, Inc. . Scope-Of Work: 1. Tree clearing per plans. 2. Installation and maintenance : of erosion control measures. Erosion control measures to . remain in place upon completion of the work of this &ntractand will become the responsibility of the Owner and/or subsequent contractors. 3. Topsoil excavation Is based. on,1a maximum depth of 8 inches. Topsoil excavation in excess of 8 inches shall be considered •unsultable material!and treated as an extra to the contact. 4. Topsoil replacement to a depth of 6" in sediment basin, trap, and.at swales; to a depth of 18" at entrance island. Topsoil replacement to a depth of 4' iii the remainder of the disturbed area to allow for site stabilization. 5. Seeding and mulching is included for all areas where topsoil has been replaced; as noted in Item #3. 6. Earthwork av indicated on draWngs. Site will be balanced to extent possible, however any excess soil will remain on site. 7. Sanitary system including laterals 10' beyond street right-of-way. 8. Sanitary testing as required by Lower Allen Township Sewer Authority. Connection to existing sanitary manhole at Lisburn fed. and abandonment and te-connection of existing Hne from Lot 12 to new sanitary line. . 9. 'Storm pipe and structures on-site and extension to existing at State Route 114. 10. Face grade, placement of storie and bituminous materials up to, and including, wearing course for Willow Bend Road and Birchwood Lane. 11. Fine grade, placement of stone and bituminous materials for walking path to Lisburn Rd. 12. PADOT entrance from State Route 114, per HOP plans. 13. PADOT curb at entrance from State Route 114, per HOP plans 14. Demolition of four (4) existing structures as indicated, including removal of all debris from the site, footing removal and back ill of the area. Exclusions: Any and all items not specifically mentioned in the above Scope of Work are excluded from this proposal. These items include, but are not limited to the following excluded Items: 1. Engineering, tapping fees, bonds, permits, inspections and other fees (PennDot, Township, Engineering and Utility). 2. Liquidated damages. 3. Barricades and pumping or de4atering. 4. Sheeting, shoring and bracing fpr others. I 5. Testing and retesting of blacktop and concrete. If awarded this project we would like to be copied on testing reports related to our scope of work 6. Benchmarks, property lines, building corners or monuments. 7. Cleaning of roads muddled by others. 8. Winterization, snow and frost removal. j • 9. individual loterosion and sediment control measures. 10. Removal and maintenance of erpsion control measures after our scope of work is completed. We will no longer be responsible for erosion control once we have demobilized. 11: Repair of any soil erosion control measures damaged by other contractors, and any related fines- 12. Underdrain on site. 13. Welland repairs or mitigation. j 14. Stone trench backfii I above utility bedding. 15. Construction and/or maintenance of access roads for others, 16. Handling, removal, and/or replacement of unsuitable, contaminated, or toxic materials. 17. Undercut and/or replacement ofiunsuitaWe soils below planned sub-grade. 18. Hauling topsoil or excavated malterials off`-site. 19. Removal of stones from topsoil or York raking. 20. Signs or line painting. 21. Work for utility pole removal and/or reloc attbn. 22: Work for gas, electric; teiopihone, cable, or site lighting. 23. Clay material for basin berm from an off-site source. 24. Concrete pipe anchors, 25. Removal, relocation, or protection of utilities or structures not shown, or incorrectly shown on contract i drawings/documents. 26. Permanent seeding, sodding, landscaping, and soil amendments. 27. Protection of all structures from the development of mold as a result of the work of our contract 28. Sinkhole repair. 29. Rode excavation. (see unit pricxs below) 30. Slope protection. ; 31. Lawn restoration. 32. Asbestos or hazardous materials removal. Owner will be responsible for providing an asbestos survey prior to start of building demolition. Pricing Notes, Provisions and 'Clairifications: 1. Prior to the start of any excavator, Liberty Excavators, Inc. shall verify existing topography. 2. All bulk excavation is moved once, either to fill area or to stockpile. If this material must be handled again, an additional charge will apply. 3. Any contract resulting from this huotation must include a copy of this quotation and any modification thereto as an attachment to said contract. 4. All work to be completed in a workmanlike manner according to standard practices. 6. This quotation is subject to change based upon actual start of said project. 6. Any afteration. or deviatloh from 16pecifications involving'extra costs will be executed only upon written orders and will become an extra charge over aW above the estimate. 7. Owner to cant' fire, tornado and other necessary insurance. Our workers are fully covered by Workmen's Compensation Insurance, ; 8. Due to the current volatile petroleurn market, the price of petroleum based materials, such as asphalt, can only remain firm for 60 days. After 60 days, LIBERTY EXCAVATORS, INC. reserves the right to make any necessary price adjustments based on the asphalt Index at the time of installation. Asphalt -is based on a February 2006 index of $283.00/ton. 9. Billing cycle and payment terms - billings twice monthly/payment net 30 days, 1.6% per month Interest charge will apply on past due invoices, no retahalge withheld. 10. Our construction schedule does not take into consideration adjustments for downtime or delays due to weather and/or other circumstances beyond our control. 11, in areas where the design grade has less than Y,' per foot fail, we cannot guarantee that there will not be ponding of water. 12. If unstable conditions are enooc ntered at any subgrade elevation, there will be. an additional charge to undercut these areas and replace them with suitable material. 13. If stone trench backiill Is required, the following additional charge will apply: $10.00 per ton. 14. If any rock is encountered, the following unit prices will apply. These unit prices will be billed for•rock that Is drilled and blasted In addition to the contract amount on page one. 'Ripped Bulk Rock Excavation Time & Materials --Blasted Bulk Rods Excavation less than 300 cy Time-& Materials Blasted Bulk Rock Excavation over 300 cy $30.00 per cy Ripped Trench Rods Excavation $40.00 per cy Blasted Trench Rock Excavation less than 300 cy Time & Materials Blasted Trench Rock Excavatioh over 300 cy $55.00 per cy 'Rock Excavation with Hoe Ram' ' $225.00 per cy Ripping Frozen Ground Time & Materials `Ripped Bulk Rock Excavation in Shale: Equipment used to Rip•Shale and level cut area shall be billed at a Time & Material basis when required to maintain production. Please note that the above rock prices are contingent upon, verification that the rock on site is either shale or . limestone. If it is established pridr to rock removal that•the rock Is of an Iron stone or similar hard variety, new unit prices will be provided for your approval.' 15. Upon substantial completion, LIBERTY EXCAVATORS, INC. will request that the Owner accept all erosion control measures installed in working condition and release LIBERTY EXCAVATORS, INC. from further responsibility as to additional measure;: or maintenance Including removal and pond conversions. At such time, the Owner shall also complete a Notice Of Tsrininat ion form to remove LIBERTY- EXCAVATORS, INC. -from the NPDES per ifL Completion of the binder course will cons ' substantial completion. 16. Any additional costs incurred fbr maintenance of E&S controls as a result of delays in excess • of 30 days, for which Liberty Excavators, Inc. Is not responsible, will be billed to the Owner on a Time & Material basis. This includes, but is not limited to, delays caused by permitting agencies, work by other contractors not hired by Liberty Excavators, Inc., and delays caused by agreements between the Owner and other parties. Liberty Excavators, Inc. shall invoice for materials stockpiled on eke during the delay period. 17. if an E&S control falls or becomes damaged by weather, and the storm event exceeds the design criteria, or the control was of inadequate design, repair of the control shall be performed on a Time & Material basis. 18. Upon substantial completion, lu6hkng of the storm sewer is the responsibility of the Owner. ' 19. If wearing course placement 9 delayed by more than two weeks after -the base or binder .course placement, then cleaning, tack coat, repair or leveling.the. base or binder course and winterization of utility structures will be at additional cost 20. We would tike to provide the following unit prices for utility trenching: Gas/Electric Combo Trench voth must $8.50/LF Electric Trench with Dust $8.00/-F Gas Trench with Dust $6.75/LF jr Conduit $2.25/L.F Transformer/Junction Box Pab $150.001EA This pricing Is for budgeting.pufposes only. Final quantities will be provided upon receipt of the approved plans from the utility companies. These pricos exclude rock extraction. 21. All pricing for excavation in this !proposal includes one time excavation only. My re-excavation necessary due to delays in placement of the structures, utilities by others, or due to acts of God, will be billed to the Owner on a Time & Material ' basis. 22. The above scope, exclusions; provision's, pricing, and attachments are sensitive and confidential information and should only be'viewed bytthe addressee. i LIBERTY EXCAVATORS, INC. reserves the right to determine the source of all labor and materials relative to any work they perform under this contract. If this g6otation is accepted, the work covered by the same will be performed upon execution . and delivery of a satisfactory conl?racf and as weather conditions and our work schedule permit This.quotstion Is for your acceptance 15 days from date hereof. We wish to thank you for the opportunity of quoting' and hope we may be of service to you. Very truly yours, 16ERTY?EXCAVlATORS, INC. Don Larldn Estimator/Project Manager i CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT (this "Contract"), made this 02nd day of March 2006, by and between DLM, LLC a Maryland Limited Liability Company, having its principal place of business at 2005 Commerce Road, Suite A, Forest Hill, Maryland 21050 (hereinafter referred to as "Owner") and Liberty Excavators, Inc., a Pennsylvania corporation, having its principal place of business at 4402 Gettysburg Road in Camp Hill, PA 17011 (hereinafter referred to as "Contractor"). WITNESSETH That in consideration of the manual covenant hereinafter set forth, the parties hereto mutually agree as follows: ARTICLE i Defiinltions 1.1 As used in thisl Contract and all documents incorporated herein by reference, the following terms shall have the following meanings: A. Owner: i "Owner" shall mean the entity hereinabove designated as "Owner," its successors and assigns. Contractor admowledges that this Contract may be assigned by Owni r to. Lender as security for a loan to Owner and Contractor agrees to execute such documents as the Lender may reasonably require consenting to such assignment and agreeing to complete the work at the request of the Lender. i B. Owner's Representative: "Owner's Representative" shall mean the person designated in writi:4g from time to time by the Owner to act as its representative.- As of the date set forth above, the Owner's Representative is Dale Hevesy. Any change in the Owner's Representative shall be evidenced in writing by notice delivered to the Contractor as herein provide. C. Contracltor. "Contractor" shall mean the above-named party designated as "Contractor," its successors and assigns. D. Subcontractors: "Subcontractors" shall mean those who directly contract with the Contractor to perform any part of the "Work" (as hereinafter defined), including those who futnish on-site labor, or on site labor and materials and those materials without furnishing on-site labor. E. Total Contract Price: "Total Contract Price" shall mean Four Hundred Ninety One Thousand Five Hundred Fifty Five Dollars and 051100 ($491,555.05), subject for, changes in the Work pursuant to Section X herein. F. Comnldtion Dates: "Completion Dates" shall mean those dates set forth in the Construction. Schedule attached hereto as Exhibit C for completion of various phases of the Work. G. Contractbocuments: The "Contract Documents" shall mean and refer collectively to: (i) This Contract, (ii) the construction plans and specifications for the Work approved by Lower Allen Township, (attached hereto, made a part hereof and marked Exhibit A), Cost Breakdown Schedule (attached hereto, made a part hereof and marked Exhibit B Construction Schedule (attached hereto, made a part hereof and marked xhijbit iC , and the Schedule of Alternate Items (attached hereto, made a part hereof and marked Exhibit D . H. Work: "!Work" shall have the meaning ascnbed to it in Section 3.1 of this Contract. I ector. The term "inspector" shall mean the Owner's Representative and the representative of any governmental body having jurisdiction over any of the Work. J. N iscellabcous Terms: Except as otherwise expressly stated herein, whenever the words "directed," "permitted," "ordered," "designated," "prescribed," or words of like import are used, it shall be understood that the direction, requirements, permission, order, dbsignation or prescription of the Owner, or the Owner's Representative is intended and, similarly, the words "approved, to "acceptable'" "satisfactory," or words of like import; shall mean approved by, or acceptable to, or satisfactory to, the Owner and to QumberlaW County. K. Job SiteE The "Job Site" shall mean the area on which the Work is to be performed hereun and such other areas as may be designated by the Owner's Representative for access thereto and for the storage of Contractor's materials and equipment. L. Lender:; The term'"Lender" means any entity which may from time to time make a loan to pwner for the purpose of acquisition of the land underlying the Job Site and/or the construction of the Work. ARTICLE II Representations and Warranties 2.1 Contractor hereby represents and warrants to Owner that Contractor: (a) is a Pennsylvania corporation which (i) is qualified to do the work and experienced and skilled in construction of the type described in the Contract Documents, (ii) is financially solvent and shall remain so throughout this construction period, able to pay its- debts as they mature, and possessed of sufficient working capital to complete its obligations under this Contract: and (iii) is able to furnish the tools, materials, supplies, equipment and labor necessary for the performance of the Work; and (b) has carefully reviewed all of the Contract Docuraents, the utility and public works agreements with Cumberland County applicable to Work and building and construction codes, standards, rules and regulations of Cumberlaund County es are applicable to the Work, and (c) has by careful examination satisfied itself as to: 65 the surface condition of the land and all structures and obstructions on -the Job Site, both natural and man-made; and all surface and subsurface waters and soil condition of the Job Site and the surrounding area; (i) the nature, location and character of the general area in which the Job Site is located its climatic conditions, available labor supply and labor cost and available equipment supply and equipment cost; (iii) the quality and quantity of all materials, supplies, tools, equipment, labor and professional services necessary to complete the Work in the manner required by the Contract Documents; (d) all materials and equipment furnished under this Contract will be new unless otherwise specified, and that all Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. If required by ttie Owner's Representative, Cumberland County or the Lender's representative the Contractor shall furnish satisfactory evidence as to the kind and quality of riiateriais and equipment. 2.2 Owner hereby represents and warrants to Contractor that Owner. (a) 1s a Maryland limited liability company which (i) is skilled and experienced in development of projects similar to this project, and (ii) is financially solvent and shall remain so throughout the construction period, able to pay its debts as they mature, and possessed of sufficient working capital to complete its dbligations under this Agreement; and the Contract Documents are complete find accurate and are sufficient to construct the Work as outlined therein accordance with applicable laws, statutes, building codes and regulations. ARTICLE III Ile Work, Time of Completfomm, and Subcontractors 3.1 Contractor's undertaking, obligations and covenants in connection with the Work and the Job Site shall include the following: 3.1.1 The Work. The Contractor shall provide all materials, supplies, tools, equipment, labor and professional and non-professional services, and shall perform all acts and supply all other things (including but not limited to, all power, water and sanitary facilities for workmen during the progress of the Work) necessary to perform the Work described in the Contract Documents, including all work expressly specified therein and such additional work as may reasonably be infennred there from, saving and excepting only such items of work as are specifically stated in the Contract Documents not to be the obligation of the Contractor. The term "Work" is defined as meaning the totality of the obligations implied upon the Contractor by the preceding sentence and by all other 3 provisions of the Contract Documents. The Contractor shall perform the Work according to the Contract Document in accordance with applicable laws, statutes, building codes and regulations. 3:12 Soil. By executing this Contract, Contractor acknowledges and agrees that the Job Site is a balanced site with respect to soils. Wet or unsuitable soils necessitating the import or export of on-site or off-site soil, drying aerating or chemically treating the on-site soil shall performed by the Contractor and all costs associated with borrow and drying of soils during all phases of the Work shall be borne by the Owner per Extn'bit A. Any defects or failures in utility trenches, building pads or roadway areas caused by improper construction techniques shall be the sole responsibility of Contractor and shall be repaired at Contractor's expense. 3..1.3 Completion Date and Notice to Prooeed. Contractor shall commence the Work promptly and within seven (7) days after receipt from Owner of a notice to proceed (cad not before such notice) and shall complete the same as soon as good practice and due diligence will permit, and in any event, not later than the Completion Date set forth in the Construction Schedule attached hereto as Exhibit C, subject to the provisions of Section VI herein. Such notice to proceed shall be given by Owner, if at all, after Owner shall have received or obtained all of the following: (i) final approval from Cumberland County and all other governmental authorities of all drawings and specifications for the Work, (ii) all public works agreements and. all easements required to complete the Work, (iii) receipt of any and all required water and sewer permits from the State Health Department, and (iv) approved financing for the Work. In the event Owner shall not have obtained items (i) through (iv) above this Contract shall be null and void and neither party shall have any rights or claims against the other with the exception of any materials purchased and any cost for work performed by the Contractor. 31.4 Supervision and Construction Procedures. The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall have control over construction means, methods, techniques, sequences and procedures and for coordination all portions of the Work under the Contract, including coordinating of all the duties of its subcontractors. 3.1-5 Subcontractors. All Subcontractors shall be subject to the prior written approval of Owner, which approval shall not be unreasonably withheld. Prior to entering into any agreement with a subcontractor. Contractor shall submit to Owner the name of such Subcontractor and such information with respect to the Subcontractor as Owner may reasonably request. 3:1.6 Taxes. The Contractor shall pay all sales, consumer, use and other similar taxes for the Work or portions thereof provided by the Contractor. 311.7 Notices. The Contractor shall give all notices and comply with all laws ordinances, roles, regulations and lawfW orders of any public authority bearing on the performance of the Work. 3:1.8 Safety Precautions and Proarauns. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. 3.1.9 Safety of Persons and Pro 3.1.9.1 The Contractor shall take all reasonable precautions for the safety ot; and shall provide all-reasonable protection to prevent damage, injury or loss to: (a) all employees on the Work and all other persons who may be affected thereby, (b) all the Work and all materials and equipment to be incorporated therein, whether in storage on or off the Job Site, under the care, custody or control of the Contractor or any Subcontractors; (c) other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction; and (d) the work of the Owner or others separate contractors. 3.1.9.2 The Contractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the safety of persons or property or their protection from damage, injury or loss. 11.9.3 The Contractor shall erect and maintain as required by existing conditions and the progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities. 3.1.9.4 When the use or storage of explosives or other hazardous materials or equipment is necessary for the execution of the Work, the Contractor shall exercise the 6 utmost care and shall carry on such activities under the supervision of properly qualified personnel. 3:1.10 Information and Reports. The Contractor from time to shall provide such information reports, test results, certificates and samples as may be required of the Contractor by the Contract Documents or Cumberland County, PA. 3;1.11 Cleaning Up. The Contractor shall at all times keep the Job Site free from accamulation of waste materials or rubbish caused by the Contractoes operations. At the completion of the Work, the Contractor shall remove all of the Contractor's waste materials and rubbish from and about the property as well as all the Contractor's tools, construction ' equipment, machinery and surplus materials. If the Contractor fails to clean up at the completion of the Work, the Owner may do so and the cost thereof shall be charged to the Contractor. 3.2 Owner's; undertakings, obligations and covenants in connection with the Work and the Job Site;shall include the following: 32.1 Permits, Tests, Fees and Inspections. Unless otherwise provided in the Contract Documents, the Owner shall secure and pay for grading and building permits and for all other permits, bonds, easements, governmental fees, licenses and inspections necessary for the proper execution and completion of the Work. 3.2.2 Owner's Representative. All instructions of Owner to the Contractor shall be forwarded to the Contractor in writing through the Owner or the Owner's Representative. 3.2.3 Access. The Owner shall provide the Contractor and its Subcontractors, their employees and agents, with unobstructed access to the Job Site. 3.2A Stakeout Owner shall have the Property corners and improvement locations staked by a registered professional land surveyor and shall save and hold Contractor harmless from and against - any liability regarding the accuracy of markers and designations. 3.2.5 Substituted Materials. In the event specified materials shall become unavailable, delayed or difficult to obtain, Owner shall immediately select substitute material. 3.2.6 Trees and Vegetation. Owner agrees that contractor shall not be responsi'bie for loss of damage to any trees or vegetation injured or destroyed during the course of performing the Work, except for vegetation and trees located outside the limits of disturbance as shown on the contract Drawings. 3.,17 Contract Documents. Owner warrants and represents that Contract Documents are sufficient to enable the Contractor to perform the Work in accordance with applicable laws, statutes, building codes and regulations, that Owner has engaged a licensed professional to prepare the Contract Documents and that the same are accurate and sufficient for the Contractor to perform the Work. 32.8 Hazardous Substances. Contractor shall not be responsible for any subsurface Hazardous Environmental conditions uncovered or revealed at the Job Site, The handling, storage and/or removal of subsurface hazardous or toxic materials encountered on site (other than those brought on-site by the Contractor) are specifically excluded form this Agreement. Contractor shall immediately notify owner of the presence of known subsurface hazardous materials for handling and/or removal by others at owner`s expense. 5.2.9 Rock Blasting and Excavation. All rock blasting as maybe reasonably required for the Work shall be the sole responsibility and expense of the Owner. The excavation and on-site relocation thereof shall be the sole responsibility and expense of the Owner. 3.2.10 Exclusions. Owner shall be responsible for all bonds, permits and inspection fees/stakeout, layout, engineering or as built drawings /removal, relocation, adjustment, bracing and/or supporting of overhead utilities/removal of buried or unforeseen debris/rock blasting/wetland restoration or mitigation/pmmanent stabilization/landscaping/ and off- site disposal of stornn-water management pond sediment, all of which are excluded from the Contractor's Work under this Agreement. in the event Owner desires the Contractor to perform any of these excluded items, an appropriate change order shall be agreed upon and executed between the parties in accordance with Article X. ARTICLE IV Compensation and Payment 4.1 Total Contract Price. Owner shall pay the Total Contract Price, as such may be adjusted by change order, to the Contractor for the performance of the Work. Contractor shall be entitled to be paid for Work (or a specified part thereof) which has progressed to a point where the Work (or a speccified part thereof) is substantially complete to be utilized for the purpose for which it is intended. Contractor shall be paid monthly for Work completed and in place and in accordance with the Cost Breakdown Schedule set forth in Exhibit B, attached hereto and made a part Iheteo£ 4.2 Method of Pa?iment Owner shall retain 0% of each payment requested by Contractor as retainage, and ! shall, within thirty days of receipt by Owner of an itemized invoice for payment, pay to the contractor the remaining 100"/o in accordance with Exhibit C. Payment to the Contractor!shall not be withheld or delayed because of delay, damage, defects or other conditions caused by pens other than Contractor: 7 4.3 Condition To Payment. The obligation of inspection by the Owner to make any of the payments required under this Contract shall be subject to any unsettled claims against the Contractor. Any overpayments to the Contractor shall, unless otherwise adjusted, be repaid to the Owner upon demand. 4.4 Final Inspection. Upon receipt of written notice that the Work is ready for final inspection and acceptance, ±the Inspectors shall promptly make such inspection and determine whether the Work required by and under the Contract Documents has been fully performed. 4.5 Final Payment. Final payment under this Agreement, including all retainages held by Owner, shall be made upon: (a) Cem?letion of the Work by the Contractor; Note: Completion of the Work shall be vsfhen asphalt surface course is placed. If placement of asphalt surface is delayed, complexion of work shall be upon placement of asphalt base course. (b) Approval in accordance with Ex1n'bit C, except in the event that the approval is not being issued because of damage, defects or other conditions caused by persons othei than Contractor, (c) The ;Contractor executing upon final payment a release of all claims and liens against the Owner or the Job Site arising under or by virtue of this Contract; (d) The Contractor famishing written releases and waivers of all rights to claim or file lien, properly executed by any and all Subcontractors; (e) The lContractor has furnished satisfactory evidence that all Subcontractors have been paid in full; and ( fl The Contractor has furnished any governmental certifications or acceptances required by the Contract Documents. 4.6 FinancLZ (Information. The Contractor shall not be required to begin the Work on the Project until such time! as Owner provides Contractor with a copy of the financing approval for the Project from Owner's lender. 4.7 Ownership of Work Upon acquisition or production by the Contractor, title to all parts and materials acquired or produced by the Contractor for the performance of the Work shall forthwith vest in the Owner. It is understood and agreed that property, title to which passes to the Owner solely by virtue of this Section 4.6 shall remain at the Contractor, except to extent such property is covered by Owner's insurance carried pursuant to Section 11. 4.8 No Acceptance. It is mutually agreed that no payment made under this Contract shall be evidence of the performance by Contractor hereunder, either wholly or in part, and that no payment or vesting of title under Section 4.5 shall be construed to be an acceptance of defective or improper materials or workmanship. 4.9 Liens. As a condition precedent to any payments under this Contract, the Contractor and all Y Subcon -acto.?r(s shall fiunish, affidavits that no claims, liens, or rights of any land he upon or y:? 17.C?1.%A J.,. .dfic have attached against the Work, or materials, articles or equipment furnished for or in connection with'the Work. The Contractor agrees, and the payments described hereon are contingent upon kbe express condition that no liens or rights in connection with the Work shall so lie or attach. in the event any liens or rights in connection with the Work shall remain after final payment ufader this Contract, the Contractor shall repay to the Owner all expenses (including reasonable attomey's fees) incurred by'the Owner in discharging such liens or rights in rein. The Contractor shall indemnify and hold harmless the Owner and the Lender against any asseftion of claims for mechanic's liens by Subcontractor or material suppliers and against any assertion of security interests by suppliers of goods or materials in connection with the Work end shall cause any such lien filed against the Job Site to be dismissed or bonded (with asurety acceptable to Owner and Lender) within five (5) days of the filing thereof. 4.10 No Waiver. Inspection by the Owner's Representative; any order, measurement, or certificate by the Ownuees Representative; any order by the Owner for the payment of money; acceptance of any work or qny extension of time; or any possession taken by the Owner shall not operate as a waiver of airy provision of the Contract Documents or any power therein reserved to the Owner, or any right to damages therein provided Any waiver by Owner of any breach of the Contract Documents shall not be held to be a waiver of any other or subsequent breach, and any waiver by droner of any right to terminate this Contract shall not be hold to be a waiver of any breach of thie Contract Documents, but Owner retains all its rights to recover damages. i AgTICLE V Default 5.1 owner's Rights on Default by Contractor. If the Contractor should be adjudged a bankrupt, or make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of the Contractor's insolvency, or if the contractor should refuse or fail, or be unable for any reason, to supply enough properly skilled workmen or proper materials, or if he should fail, or be unable for any reason, to make prompt payment to Subcontractors for materials or labor, or disregard laws, ordinances or the instruction of the Inspectors, or if he is unable to complete the Work in strict acbordance with the Construction Schedule attached hereto as Exhibit B. or otherwise be guilty of a violation of any provision of the Contract Documents (a "Default"), then the Owner may, vnthout prejudice to any other right or remedy, and after giving the Contractor fifteen (15) days w-nttean notice, in which Contractor has the right to cure the Default, suspend the work and/or terminate this Agreement- The remedy provided by this Section 5.1 is in addition to and not in limitation of any other rights or remedies available to the Owner. Notwithstanding the above provisions, the Contractor shall be liable to the Owner for any breach of this Contract by Contractor, its agents, employees and subcontractors that cause injury or damage to Owner, including reasonable attorney's fees. 5.2 Contractor's RigW on Default by Owner. If the Owner should be adjudged a bankrupt, or make a general assignment for the benefit of creditors, or if a receiver or trustee should be appointed on account of the Owner's insolvency, or if the Owner should refuse or fail, or be unable for any reason, to make prompt payment to Contractor as required by this Contract or otherwise be guilty of a violation of any provision of the Contract Documents (a "Default"), then the Contractor may, without prejudice to any other right or remedy, and after giving the Owner fifteen (15) days written notice, in. which Owner has the right to cure the Default, suspend the work and/or terminate this Agreement. The remedy provided by this Section 5.2 is in addition to and not in ?1L..1?...cf-U-V..y....r- -Alf-" %I" -A.•- r- r- - - I- 9 limitation of any other rights or remedies available to the Contractor. Notwithstanding the above provisions, the Owner shall be liable to Contractor for any breach of this Contract by owner, its agents, employees and the Owner's other contractors and their subcontractors that causes injury or damage to Contraactor, including reasonable attorney's fees. ARTICLE VI Delays and Extensions The time during which iContractor is delayed in the performance of the Work by the acts of omission or commission of the Owner, dr of the employees or agents of the Owner, or by the acts of God, or abnormal climatic conditions, which the Contractor could not reasonably foresee or provide against, or other causes beyond the Contractor's control, shall be added to the time of completion of the Work as set forth in Section 3.12 hereofi provided that the Contractor shall not be entitled to any extension of time for delays resulting from any such causes, unless; it shall have notified the Owner in writing within ten (10) days after the commencement of each such cause or the occurrence thereof, and of the probable duration thereof. Owner and Contractor shall ascertain !the facts and the extent of the delay and Owner shall then extend the time for completing the Work when the facts justify such an extension. The Contractor shall not be entitled to and hereby waives any and all damages which it may suffer by reason of delay to the Contractor in the performance of the Work, or aliy portion thereof by any of the aforesaid events, the extension of time granted herein being Contractor's soleremady. The Contractor shall not be liable for any damages which were not directly caused by his acts andYor omissions. ARTICLE VII Time Schedule 7.1 Prior to the cwmm.encement of any portion of the Work, Contractor and Owner shall agree upon a Construction Sc#redule (which shall be attached hereto, made a part hereof and marked Exhibit B? showing the vbrious phases of the Work with dates of completion of each such phase. A Notice to Proceed shall be issued for each phase of the Work set forth on the Constriction Schedule. Such schedule shall be supplemented or amended from time to time as circumstances may require, provided, however, that the Completion Date shall not be extended except pursuant to Article VI hereof Such schedule, and any supplements or amendments thereto shall be subject to the appibval of the Owner's Representative. 7.2 Unless otherwise: notified by Owner in writing the Contractor shall carry on the Work and maintain its progrbss in accordance with the Construction Schedule attached hereto as Exhibit B, even if the Contractor is in default of any of the Contract Documents for any other portion or phase of the Work. All notices or communications to the respective parties shall be in writing and delivered to the Contractor or the Owner, as the case maybe, addressed as follows: If to Owner. DLK LLC :2005 Commerce Road :Suite A Torest Hill MD 21050 :Attn: Dale Hevesy, Vice President 10 If to Contractor. Liberty Excavators, Inc. 4402 Gettysburg Road. Camp Hill, PA. 17011 Attn: Don Larkin, Project Manager ARTICLE IX Engineering Responsibility owner shall be solely responsible for furnishing to Contractor all necessary and required engineering and stakeout work in order for Contractor to complete the Work hereunder. ARTICLE X Clian es bn the Work; Claims for Additional Cost 10.1 Changes in the Work by Owner. The Owner, without invalidating this Contract may order, changes in the'Wbrk within the general scope of the Contract consisting of additions, deletions or other • revisiois, the Total Contract Price and the Completion Dates being adjusted accordingly. All: such changes in the Work shall be authorized by change order executed by Owner and Confctor and shall be performed under the applicable conditions of the Contract Documents. 10.2 Alternate Items. Alternate Items shall be performed by the Contractor if and when required on the terms and coriditions shown on the attached Exhibit A. . ARTICLE XI Insurance and IndenmMeation 11.1 Contractor's Liability Insurance. 11.1.1 The contractor shall purchase and maintain insurance for protection from the claims set forth below which arise out of or result from the Contractor's operations under this Contract, whether such operations be by the Contractor or by any Subcontractor, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: a. claims under workers' or workmen's compensation disability benefit and other similar employee benefit acts; b. claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees; c. comprehensive general liability, and damage insurance having a combined limit of not less than $2,000,000.00; d. claims for damages because of bodily injury or death of any person or property damage arising out of the ownership maintenance or use of any motor vehicle. 11. 1.2 The insurance required by Subparagraph 11. shall be written for not less than the limits specified above or required by law, whichever is greater. 11. 1.3 The insurance required by Subparagraph 11. shall include contractual liability trace applicable- to the Contractor's obligation under Section 11.8 11.1.4 Certificates of insurance or, if required by Owner, policies of insurance acceptable to the Owner shall be submitted to Owner's Representative for transmittal to the Owner prior to pommenrement of the Work. These certificates or policies shall contain a provision that coverage afforded under the policies will not be cancelled until at least thirty (3d) days prior written notice has been given to the Owner. 11.1.5 All insurance carried by Contractor shall name Owner and any Lender of Owner as additional insureds, as their interests may appear. 112 Owner's Liability! ho r ince. The owner shall be responsible for purchasing and maintaining Owner's liability insurance and, at the Owner's option, may purchase and maintain additional insurance for protection against claims which may arise from operations under this Contract. 113 Property Insurance. The Owner shall purchase and maintain builder's risk insurance upon the entire Work at the Job Site. This insurance shall include the interests of the Owner, the Lender, the Contractor and Subcontractors in the Work. 11.4 Proof of Insurance. Proof of such insurance shall be provided to Contractor by Owner as needed. 11.5 Waiver of SubroLation. The Owner and the Contractor waive all rights against (1) each other and the Subcontractors, agents and employees ofeach other, and (2) the Owner's Representative and separate contractors, if any, and their subcontractors, sub-subcontractors, agents and employees, for wages caused by fire or other perils to the extent covered by insurance obtained pursuant to this Paragraph I 1 or any other property insurance applicable to the Work, except such rights as they may have to the proceeds of such insurance held by the Owner as trustee, such waiver being conditioned upon the inclusion of a Provision in the policy or policies of instance providing that any such waiver shall not otherwise effect insured's coverage under such policy or prejudice any rights of the inserted to recover thereunder. The Owner or the : Contractor, as appropriate shall require of any separate contractors, Subcontractors and sub-subcontractors by appropriate agreements, written where legally required for validity, similarly waivers each in favor of all other parties enumerated in this Subparagraph 11:5. 11.6 Adiustment of L-6ss. The Owner shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object, in writing within five days after the occurrence of loss to the Owner's exercise of this power. 11.7 Lender's Reauira meats. Owner and Contractor acdmowledge that the insurance requirements set forth in this Contract and in the Contract Documents may be required to be varied by the Lender or by Owner's insurance carrier, and Contractor agrees to enter into suitable modifications of the provisions hereof upon the request of the Owner, provided Owner bears any additional cost occasioned thereby. tz 11.8 Indemnification 11.8.1 To the fullest extent peanitted by law, the Contractor shall indemnify and hold harmless the Owner, the Owner's Representative, and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to reasonAle attomey's.fees, arising out of or resulting from the performance of the Work ptovided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work itself), including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act or omission of the Contractor, and Subcontractor, anyone directly or indirectly employed by any of their, or anyone for whose acts any of them may be liable. Such obligation shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this paragraph 11.8.1. 11.8.2 In any and all claims against the Owner, the Owner's Representative or any of their agents or employees by any employee of the Contractor, any Subcontractor, anyone directly 'or indirectly employed by any of them or anyone for whose acts any of them may be ?iable, the indennnification obligation under this Paragraph 11.8.2 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor of any Subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. ARTICLE XI1 Defective Work: Contractor's Warranty 12.1 Reiected Work. The Contractor shall promptly correct all Work rejected by the Inspectors as defective or as failing to conform to the Contract Documents whether observed before or after substantial completion of the Work and whether or not fabricated, installed or completed. The Contractor shall bear dll costs of correcting such rejected work and such costs shall not be a cost of the Work. 12.2 Contractor's Wau: ants. If within one (1) year after the date of completion of the Work as stated in Article 4.5 (Completion of Work), the Work is found to be defective by the Engineer or approving govemmental authorities, the Contractor shall promptly, after notice from and without cost to Owner, correct such defective Work, except that the Contractor shall not be responsible for defects or damages caused by others. This obligation shall survive both final payment and termination of this Contract 123 Owner's right to Correct. If Contractor does not proceed with the correction of such defective or nonconforming Work within seven (7) days after a request to do so, the Owner may make such correction and may remove it and may store the materials at the expense of the Contractor. If the Contractdr does not pay the cost of such removal and storage within seven days thereafter, the Owner may, upon seven additional days written notice, sell such materials at auction or at private sale and shall account for the net proceeds thereof, after deducting all the costs which the Contractor should have borne, the difference shall be charged to the Contractor and an appropriate change order shall be issued. If the payments then or thereafter due the P Contractor are not 'sufficient to cover such amount, the Contractor shall pay the difference to the Owner. ARTICLE XIIZ Miscellaneous 13.1 Interpretation of Contract Documents. The Contract Documents shall be construed and interpreted ii accordance with the laws of the State of Pennsylvania. If anything in the Contract Documents is found to be inconsistent or in conflict with any other provision in such documents, this Contract shall take precedent over all other documents. 13.2 Time of EsAnce. Time shall be considered of the essence of this Contract. 13.3 Headings. 'the headings of the paragraphs are for convenience only and shall not affect the meaning: or interpretations of the contents thereof. 13A Severability: if any provision of this Cow shall be held violative of any applicable law or unenforceable for any reason, the invalidity or unenforceabii ity of any such provisions shall not invalidate or render unenforceable any other provision hereof; which shall remaindn full force and effect. 13.5 Cooperation: and Timeliness. The parties shall diligently work to cause all conditions precedent to the obligations contemplated by this Agreement to be met in a timely manner and where nocessary, to cooperate with each other in order to effectuate the aforesaid. 13.6 Binding Effect. The terms and conditions of this contract shall inure to the benefit of and bind the sucbessors and assigns of the parties hereto. 13.7 CompleteAgreement This Contract represents the complete understanding between the parties hereto and supersedes all prior negotiations, representations or agreements, whether written or oral, as to matters described herein. This contract may be amended' only by written instrument signed by both parties. No requirements, obligations, remedy or provision of this contract shall be deemed to have been waived, unless so waived expressly in writing and any such waiver of any such provision shall not be considered a waiver of arty right to enforce such provision thereafter. 13.8 Original anti Counterparts. This agreement may be signed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and thetsame instrument. -14- IN WITNESS WHER[EOF, the parties hereto have executed this Contract as of the day and year first above written. ATTEST: BY: DLM, LLC(SEAL) ATTEST: BY: Liberty Excavators, Ino-(SEAL) i Owner Name:??3?,.?sJr Title: Pow F +e c.? crn EXHIBIT A ?5 ,IAN-26-2007 FRI 01:32 PM OPERATIONS DEPT FAX 90, 717 763 0922 Gemcrsft gomes Forest 220S Commerce Drive, 'Suite A- Forest HA MJ) 21050 VARIANCE PORCHASE OROER T0: Y•q V ?a ?O f ?_?ber VENDOF i p - Ec A?? t n?s?d''? cep ci svpplr` P.O. .905142a tom: Monvo Lot, ?Un --^--- proje4t..,.. BACK Wii a o FAXED ?----- a? f suR Q HMO VaMRW ?' 4 r?a? ?? 1Nri 13 c, c.? a . (A.; ROWAUM T Land RU1L:1ipT T? '?LCERD T149 k MAY T ------ ,TQT at Sw WT MML "swam 04 7R? Q 70 CIWIG 31HPIJV? fl fitL1W 7R1?•?? . 12 tiA 16C 13 ?? C04AM14 N- >p 21 !2 2 • 1 v M q M S? JAN-26-2007 FRI 01:32 PM OPERATIONS DEPT 'LIBERTY EXCAVATORS, INC. d Proposal FAX NO. 717 763 0922 P. 20 Site Development Contractor 4402 Geuysburg Road Camp Mg, PA 17011 717.761-8461 Fax-717-731-4634 Mr. Tom S amen .. PR OW 78 M WED TO PHONE 410403494H DATE OOMY 27, 2008 C-4mcroft 1 tomes FAX 410hK/7-7370 STREET ...-....,. JOB NAME 2205 Con netts Road Yellow BMKh96 Farm - - CITY, STF tt AND ZIP CODE JOB LOCATION Farest Hill MD 21050 Lower Alien Towns, Cue sbadand Comfy ETIGiNE? t . Met" En *ON". bro. We h;Z71 submit ownanft* end O mates for: Yelow Breeches Fafm Sooae of, ark for the above refereaoed I)MIOct We FW a to funft AN labor, e4ripment and material rooessary b Garnakle the following: See affect ad Price Proposal Breakdown & 8PO" Provisions We Prof we hereby to fu AM malarial labor- eoropleo in,a0Gtirdartee with to abate Spedticeti-NM far the Stan of f11G4 (s4s1.s5s.os?. bur PayMW a be made as taMm AA maletl h guaranteed b be ae s lied.' AR wok b de canpieled irr a ruorlunanfike mariner scar ding b alarrdard pradlcee. Any 0lWa kn or devl4m from ape o7icah" irwd tp extra costs wA be ammuled arty Mm written arders and vA beoorrrr an extra charge over end above the esgmaW All apraeme a contingent upon strivm aooid" or delays beyond our corttrai, owner tD arty fm la'r:ada and other necessary insurance. Our wnrirorx are [ally a+AE bd by W&kmen's Cgnpensaft WeA arise. Sigrletin Esiknator Accei stance of Proposal - 17" above arras, saedboa6ans and -lix y and 81746306 aa?a. 2!7?r7e s oorrsbad an aOnN 4 based on title MPMM. oa?. signapue - -- - Date of t carptance D b,t)0(0 Signahxe ;'A ? •?Ga nn c/ ? }'rrta C ec?- ?{etn ??GI'` t: MINAI. - SIGN d RMRN JAN-26-2007 FRI 01;33 PM OPERATIONS DEPT 02/27/200'p 10:26 16029 Yellow Breeches IF= Rev 2 labcrl i Excayasors, Inc. Bidit= Description FAX NO. 717 763 0922 P. 21 BM TOTAILS Quantity Units unit Price E;6 Total 210 LUBBING CLIAINC &M 2.000 AC 6,100.00 12,200.DO 215 . BUrt1 DING DEMO : 1.(Hx) IS 21,000.00 21,000.00 221 CON$TR.UCTION DURANCE 1.000 EA 1,500.00 1,500.00 225 SED1MENi' BASIN ' 1.000 EA 6,800.00 6,800.00 227 SE Dam TRAP 1.000 FA 2,400.00 2,400.00 229 ANTI4M COLLARLS 4.000 EA 625.00 2,500.00 230 TEM(PORARYPISE19L 2.000 FA 2,750.00 5,500.DO 232 S75 IBM SWALE ' 249.000 LF 4.85 1,207.65 233 240 C125 L31= SWAI.I 30" SILT mCE WtlhEBAGS 200.000 1,552.000 LF IF 7.10 2.50 1,420.00 3,880AO 245 SUPER SMT FENCE 94.001) LF 10.25 963.50 260 SEED AND MULCH'T)MR tBFU AREA 44,835.OOQ SY 0.23 10,312.05 E&S, AND SUBTOTAL $69,68320 300 STRIPIBTOCK TOPSOIL PAN $,930.006, CY 2.10 18,753.00 310 CUT/ TLLPANS 20,184.00h CY 2.45 49;450.80 315 COMPACTION !'ES3WNG 1.000 LS 4,900.00 4,900.00- 320 IRMSPREAD TOPSOIL 4" THICK 4,578.000 CY 3.05 13,962.90 EXCAVATION SUBTOTAL $87,066:70 400 CONNFGT TO magma SANITARY 1.00) FA 2,000.00 2,000.00 402 SANITARY mmuOLES 9.(Ir:) RA 2,300.00 20,700.00 410 8" SDE35 1,563.0013 IF 30.00 46,890.00 420 6" SDR35 11102.001 LF 28.00 30,856.0 435 LATERAL FITTINGS & STAKES 25.00) EA 165:00 4,12$.00 4,40 BYPASS PUMP LOT 12 SANITA1i.Y 1.001) LS 1,500.00 1,500.00 450 RECONNECT LOT 012 LATERAL 1.003 LS 700.00 700.00 . 480 PATCH PAVEMENT 74.003 3Y 135.00 2,760.00 490 TM S19FFARY 1,563.003 LF 13.0 2,031,90 . 495 MA=AlN & PROTECT TRAFFIC 1.000 LS 1,850.00 1,850:00 SANITARY SEWER SIMTOTA1, $113,412.90 500 CONNIECT TO EWMG STORM I.Ma EA 200.00 200:00 510 STORM INLET 10.060 EA 1,700.00 17,000.00 520 ' FLARED Em SEmON 6A.0 EA 245.00 1,470.00 535 18" S13CPP 405.000 IF 3525 14,27625 537 18" COMBO PIPE 45.00 L'F 4925 2,21625 540 I8" Cw 395.0410 is 34.00 13,430.00 550 18" RCP 5.000 LF 160.00 840.00 560 24" CMP 50.010. LF 41.75 2,08730 570 RIP RAP APRONS 70.0:10 TN 41.00 2,870.00 1 FAX NO. 717 763 0922 P. 22 BID TOTALS Quantity Units Unit Price Bid TOW STORM SEWER SUBTOTAL $54,350.00 800 FDWRADE ASFRALT PATS 120.000 S'Y' 4.75 570.00 802 WALmo PATH.- STONE & ASPHALT 120.000 SY 34.06 4,080.00 810 FINEGRADE STRB87 S 5,410.000 SY 1.70 9,197.00 816 6" 2A SUBBASE - S'TREEM 5,410.000 SY 5.55 30,025.50 820 3" BCBC 5,410.000 SY 8.65 46,796.50 830 1.5" WEARING 5,410.000 SY 5.30 28,673.00 832 ROADSIDE SWAT E6 2,520,000 I.F 6.50 16,38040 ONSrM PAVING/SWALE SUBTOTAL. $135,722.00 837 TBAFPIC C+SNWL FOR PADOT WORK 1.00.) Ls 1,875.00 1,875.00 838 ENTRANCECURB/1r4MIAN 245.000 LF 29.00 7,105.00 840 FDMGRADEPAl)0T?AVING 85XV) SY 315 276.25 845 PADOT CURB 85.(iu) SY 41.50 3,527.50 $60 TC)PSOIL ISL M ' 15.00), CY 16.60 240.00 PADOT FAVM /CURB SUBTOTAI, . S 13,023J5 BASE BID TOTAL 5473,25855 900 G'LEM OUT RAMS 350.001) CY 8.25 2,887,50 905 U*U T"TION BEDS 450.0(11) LF 18.50 8,32500 908 OUTLET 3TR2JCn*m 2.000 PA 2,875.00 5,750.00 910 RESTA13n= BASINS 5,800.000 SY 0.23 1,3300 ALTERNATE SWU CONVERSION SUBTOTAL s18y96.50 JAN-26-2007 FRI 01:33 PM OPERATIONS DEPT 02/271'20116 10:26 1.6029 Yv11ow Breechas Farm Rev 2 •*'' Iabe? ry $zcavatoas, Inc. ' Biditem Desuiption Bid ToW $491,555.05 "Note ; It= b. italics arc Non-Additive 2 JAN-26-2007 FRI 01:33 PM OPERATIONS DEPT FAX NO, 717 763 0922 SPECIAL. PROVISIONS Yellow Breeches Farm P. 23 Upon ac ;eponce, please forward applicable financing information to our of oe, which can include verification of the funding source c, the established line of credit for the protect. This pro x)sal has been prepared on the basis of material prices available to us on the date of the proposal and will remain firm up t) and including March 17, 2006. After March 17, 2006, we reserve the ri?'lht to increase our price(s)-at such time as the actrx i costs of material(s) increase(s). We harr ; used plans prepared by Mellott Engineering, Inc. The drawings are numbered and dbted as follows for yellow Breeche ; Farm: Sheet # Description Date Revised 10(8 Cover Sheet 03122104 09/28/05 '2 of 8 ExistCitg Featcees & Demofrtion 03422104 07111106 3 of 8 PreliminarySubdivision Plan 03!22/04 09aw 4 of 8 Gradipg S Utility 03/22!04 02(01/06 5 of a Public Road 4AW Profiles 03/Z2/04 02101/05 60(6 F vslOn Control Plant 03/22J04 10/26/05 7 of 8 EBBS *nd Construction Details 03/22104 10/25105 8 of 8 sanitary sewer Details 03J22lri4 07/11105 HOPI Highway Occupancy Plan - Local Road 03122104 WA HOP2 Highway Occupancy Plan - Sanihary Sewer 03122104 WA Additicn J information utilized in the preparation of this proposal: CAD files provided by Mellott Engineering, inc. to Uberty Excavat xs, Inc. _ Scope-1 it Work: 1. Tri a clearing per plans. 2. iris Wlatlon and maintenance ; of -erosion c riirol measures. Erosion cal 001 measures to - remain in place upon co npietion of the work of this contract and will become the responsibility of the Owner and/or subsequent contractors. 3. To *074 excavation is based of*a maximum depth of 8 inc*ses. Topsoil exc m-ation in exoess of 8 inches shall be co isidered,unsuitable material!and treated as an extra to the contract. 4. Tc )soil replacement to a depth of 0' in sediment basin, trap, and at swales; Ix:) a depth of 18" at entrance island. Topsoil re: hoement to a depth of 4" 11 the remainder of the disturbed area to allow ti:w site stabilaation. 5. Se i&ng and mulching is included for aN areas where topsoll has been replaoxl, as noted in item #3. 6, fz,* wk as. inciioated on drawings. Site will be balanced to extent possitre, however any mxcess soil wili.remain on s4 7. & rtitary system including laterals 10' beyond street rW-of-way. s. S- rotary testing as required. by Low Alen Township Sewer Authority. ConneWon to existing sanitary manhole at Lii burn Rd, an4 abandonment, and-re-carnootiorr of existing line from Lot 12 to new sanitaryr fine. . 9. Storm pipe and struct4as w&ahe and extension to existing at State Route 114. 10. Fare grade, placement of storis and bituminous materials up to, and including, wearing c oLm for Willow Bend Road at d Birctmrood Lane. 11. Ft e grade, placement of stone and bituminous materials for walking path to I..isbum Rd. 12. P/ DOT entrance from state Route 114, per HOP plans. 13. Pi DOT curb at entrance from State Route 114, per HOP plans 14. Dr mortlon of four (4) existing 'structures as imrrated, indcding removal or J debris from the site, footing removal and tx ddiill of the area. Exdux ions: Any ar J all items riot specifically mentioned in the above Scope of Work are oxcluded from this proposal. These items include but are not limited to the following excluded items: 1. E fineering, tapping fees, bonds, permits, Inspections and other fees (PennDl. Township, Engineering and Utility). 2. Liq Adated damages. 3. Ba ricWes and pumping or de-metering. 4. Sh :sting, shoring and gracing 10 others. JAN-26-2007 FRI 01:34 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 24 5. Tes ing and retesting of blacktop and concrete. If awarded this project we would like to be copied on testing reports rely ed to our scope of work. ; , 6. Ber :imarks, properly lines, building comers or monuments. 7. Cie; ;ning of roads muddled by others. S. Win atization, snow and frost removal. .0. Indl riduai lot erosion and sediment control measures. 10. Rer Koval and maintenance of erosion control measures after our scope of work is completed. We will no longer be resi onsible for erosion Control since we have demobilized. 11. Rpr air of any sof erosion control measures damaged by other contractors, and any related fines. 12. Unc erdraln on site. 13. We land repaks ar mitigation. U. Sto, is trench back/ill above ublitjr bedding. 15. Cor stniction and/or maintenance of access roads for others. 16. Her dling, removal, and/or replacement of unsuitable, contaminated, or toxic materials. 17. Uric eW and/or repiawment ofunsuitable soft below planned sub-grade. 18. Hat Ong topsoil or excavated materiars off-site. 19. Rer hovai of stories from topsoil ix York rakutg. 20. Sig a or One palnttiig. 21. Wo k for utfity pole removal and/or relocatlon. 22. Wo k for gas, elecfic; telephone, cable, or site lighting. 23. Cla r material for basln berm ftvr'n.an off-ite wume. 24. Coi ante pipe anchors. 25. Rai noM. relocation, or protecftri of utlitles or strufta'es not shown, or incon-idy shown on contract j dra vings/documents. 26. Per maneni seeding, sodding, landscaping, and soal ameridments. 27. Pre action of all structures from the development of mold as a result of the w0 is of our contract. 28. Sin We repair. 29. Ra ,k excavation. (see unit price's below) 30. SIc 39 protection. : 31. Lai on restoration. 32. Asl estos or hazardous materials removal. Owner will be responsible for proMing an asbestos survey prior to start of bud ding demolition. Pdcln5 Note's, Provisions and'CMffKatlons: 1. Pin kr to the start of any excavation, Liberty Excavators, Inc. shall verify existlrr3 topography. 2. All xilk excavation is moved once, either to 91 area or to stockpW If this matt!ft must be handled againt an aWffional rge will apply. d r 3. Arr contract resulting from this *xylation must include a copy of ttris quotatiar!: and any modification thereto as an am athment to said contract. ' 4. All Nork to be completed in a workmanlike manner socording to standard prat tices. 5. Thu s quotWoori is subject to change based upon ach at start of said project: B. An r altetatiort or deviation from'epecilice5ons Involving-extra costs will be exemted only upon written ordere and wAl be ome, an extra charge over and above the estimate. 7. Ov rier to cant' fire, tornado and other necessary insurance. Our workers are fully covered by Worlanen's Compensation i {ns aranoe. 8. Du : to the current volatile petroleum market, the price of petroleum based materials, such as asphalt, can only remain frcr, i for 130 days. After 60 days, •LISERTY EXCAVATORS, INC. reserves the r fight to make any necessary price ao istments based on the asphalt index at the time of installation. Asphaft Is based on a February 2006 index of $2 i3.00lton. 9. Sit ing cycle and paymeht terms - billings twice morithly/payment net 30 days, 1.6% per month interest charge will apply on past due invoices, no rmaln-Ve wfthheld. 10. Or: r construction schedule does not take into consideration adjustmentsfor ck wntime or delays due to weather and/or ott or circumstances beyond out control. 11. In rreas where the design grad® has less than %' per foot fall, we cannot gugu antes that there will not be pondirg of wa ter. 12. If i nstable conditions are enoountered at any subWade elevation. there will bE:, an additional charge to undercut these are as and replace them with suitable material. 13. tf E tone trench bacldili is required, the following additional charge will apply: al 10.00 per ton. JAN-26-2007 FRI 01;34 PM OPERATIONS DEPT FAX NO. 717 763 0922 P, 25 14. If ar j rock is encountered, the following unit prices will apply. These unit p6;es will be billed forrock that is drilled and bla ;ted in addition to the contract amount on page one_ *Rip red Sulk Rock Excavation ' Time & Materials ,BI&, ,fed Bulk Rock Excavation less than 300 cy Time & Materials Bla+ led Bulk Rock Excavation over 300 cy $30.00 per Cy Rip )ad Trench Rock Excavation $40.00 per cy Sla +ted Trench Rack E cavadon less than 300 cy Time & Materials Sla clad Trench Rock Excavatioh over 300 cy $55.00 per cy 'ft k Excavation with Hoe Ram $225.00 per cy Rip ft Frozen Ground Time & Materials 'Ripped Bulk Rock Excavation in Shale: Equipment used to Rip- Shale and level cut area shall be billed at a Time & tit WW basis when required to maintain production. Please note VW the above rock prices are contingent uport verification that the rock do site Is either shale or Umesto w. If it is estaglishad priOr to rock removal that the rock Is of an iron stone or shngar hard Variety, new unit prices ti 40 be provided for your ahnoval. ' 15. Upc i substantial completion, WDERTY EXCAVATORS, INC. will request that the Owner accept all erosion control me; surer installed In working condition and release LIBERTY EXCAVATORS, INC. from further responsibiiky as to add tonal measures or tmainterwrice Including removal and pond cxxwerab:ms. At such time, the Owner shall also corn plate a Notice Of Twn* wbm form to remove USERTY, EXCAVATORS, INC. from the NMES permIL Completion of tf a binder coumo will oonstihis, subs#ai tlal completion,— 16. Arty adddlorW c obU kwur ed fOr mahergm of E&S controls as a result Df deliiys in excess- of 30 days, for which Ube rty Excavators, Inc. is not responsible, will be billed to the Owner on a Time do Material basis. This includes, but is not imtted to, delays caused by permit v agerrcaes, *Vrk by other contraors not hhbd by Liberty Excavators, Inc., and dell ys caused by agreements liet ~ the Owner and other parties. UbeMf Excavators, ins shall invoke for materials stoc kpiled on site during the delay oerlod. 17. ff ai c E&S control fails or becomes damaged by weather, and the storm evenil exceeds the design criteria, or the control wm of inadequate design, repa* of the control shall be performed on a Time & Material basis. 18. Upc n substantial completion, #Lt hing of the storm sew is the msponsibuity of the Owner. 19. If v sarthg course placement i* delayed by more than two weeks after the base or binder ,come placement, then cle; ning, tack coat repair or k0eling.the base or binder course and winteri 1lon at utility structures will be at additional 20. We would like to provide the follbwirtg unit prices for utility trenching: ( awBectria Combo Trench *th Dust $8.50JI.F I: lectric Trench with Dust $8.001LF ! as Trench with Dust $8.751t.F • Conduit $2251!.!" 1 tansfomteNJunctidn Box Pats $150.ODIEA Tt Is pricing is for budgeting purposes only. Final g4arttities will be provided upon receipt of the approved plans from the uti Ity companies. These prrcts exclude rock extraction. 21. All xicing for excavation In 'proposal includes one time excavation only. Arty r"xcavatian necessary due to delays In 6 lacement of the structures, utilldes' by others, or due to acts of God, will be billed to the Owner on a Time & Material bm is. 22. 'th c above scope, excludoner,; pro*11ons, pricing, and attachments are it ensitive and confide kcal Iniornradon any I should only bawiewed by the addressee. LIBEK Y EXCAVATORS, INC. resOryo the right to determine the source of ail Nwr and materials relative to any work they perfom under this contract. N this quotation Is accepted, the work covered by the ,name will be performed upon execution. and de livery ofa satisfactory aerr6 d and as wreather conditions and our wwt schedule perrrtik Ties. quotation is for your accept axce 15 days from dots havd. We wh h to thank you for the opportunity of quolft and hope we may be of servic a to you. Very t my yours, ISEF T?Y,rEXCAV?ATORS, INC. Don L trkin Estim; ttor/ftject Manager JAN-26-2007 FRI 01:35 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 26 CONSTRICTION CONTRACT THIS CONSTRUCTION C0jgMCT (this "Contract"), made this (Und day of March 2006, by and betty Feu ALM, LLC a Maryland Limited Liability Company, having its principal place of business at 2005 Com: nerce Road, Suite A, Forest Trill, Maryland 21050 0wreinafter rtferted to as "Owner") and Liberty Exca ratans, Inc., a Pennsylvania corporation, having its principal place o f business at 4402 Gettysburg Road in Q mp Hill, PA 17011 (hereinafter referred to as "Contractor"). WPIMSIETH That in consideration of the manual covenant hereinafter set forth,, the patties hereto mutually agree as fo lows: ARTICLE I DdinM ns 1.1 As used in this' Contract and all documents incorporated herein by reference, the following terms shall have the following mcaoings: A. Owner: ' "owner" shall mean the entity herac,above designated as "Owner," its successors and assigns. Contractor admowledgei,- that this Contract may be assigned by Owner to. Lender as security for a loan to Owr::er and Contractor agrees to execute suc b do ents as the Lender may reasonably ro-faire consenting to such assipment and agrcWag to complete the work at the ivquest o f the Lender. B. owner' R esentativ,r "Owner's Represetitad-vo shall mean the person designated in writi i from time to time by the Owner to act as its representative.- As of the date 19 set foot above, the OwnWs Representative is male Hovesy. Any change in the -owner's Representative shall be evidenced in-9riting by notice delivered to the Contractor as herein provide: C. Contramr. "Contractor" shall mean the above-named party designated as "Contractor," its successors and assigns. D. Sub 2ul =ors: "Subcontractors" shall mew Oese who directly coohad with the Contractor to perform any part of the "Work" (as hereinafter defned), including those -who finish on-site labor, or on-site labor and zAterials and those materials without f1- isbi6_9 on-&6 labor. E. Total gCintrag pice: "Total Canhact Price:" sb.,,ill mean Four Hundred Ninety One Thousand Five Hundred Fifty Five Dollars atL, 051100 ($491,555.05), subject for changes in the Work pwmmt to Section X herein, F. Compl6 ion Dates: "Completion Dates" shall mean those dates set forth in the Constnictiou Sohedule attached hereto as ExUbii C for completion of various phases of the Work. JAN-26-2007 FRI 01;35 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 27 G. ContractiDocuxnents: The "Contract Documents" ;hall mean and refer collectively to: (i) This rbntract, (ii) the construction plans and sl wciftcations for the Work approved by Lower Allen Township, (attached hereto, matte a part hereof and marked Exbbit A), Cost Breakdown Schedule (attached hereto;, made a part hereof and marked Exlu'bit B , Constructior< Schedule (attached here to, made a part hereof and marked 'hit lC , and the Schedule of Alternate Items t:attachEd hereto, made a part hereof and marked Ems. D. Work: ".work" shall have the meaning ascribed to it in Section 3.1 of this Contract. L fir. The turn "Inspector" shall mean tie Owner's Representative and the representative of any governmental body having j .,xisdiction over any of the Work. J. MEANaeous TMW: Except as otherwise ex.f.ressly stated herein, whenever the wards "directed," "permitted," "ordered," "dedgwited," "prescribed," or words of like import Are used, it shall be understood that the iirecdon, requirements, permission, order, dledVA ion or presmiption of the Owner, or the Owner's RepmmWive is intended and, similarly, the words "approved, " ",rcceptabl$" "satisfactory," or words of like itgort, shall mew approved by, or accepts.ble to, or satisfactory to, the Owner and to Cumberland County. i, rob Site The "Job Site" shall mesa the area on which the Work is to be performed her d r and such other areas as may be desilp:ated by the Owner's Representative for acxeas thereto and for the storage of Contractaj's materials and equipment. L. Lender' The term "Linder" means any entity which may from time to time make a loan to Owner for the purpose of acquisition of tb s land imderlying the Job Site and/or the Construction of the Work. ARTICLE Il Begres tipns !Md )Warrandos 2.1 Contractor hereby represents and warrants to Owner that Contractor. (a) is a Penusylvarda corporakiou which (P is qualified to do the work and experienced and Anted in construction of the type described in the Contract Doptments, (ii) is financially solvent and shall remain so throughout this contraction period, able to pay its, debts as they Mature, and possessed of sufficient working capital to complete its obligations under this Contract: and (iii) is able to furnish the tools, materials, supplies, equipment and labor necessary for the performance of the Wof i.; and (b) has carefully reviewed all of the Contract Documents, the utility and public works agreements with Cumberland Covity applicable to Work and building W construction codes, standards, rules &.A regulations of Cumberland County as are applicable to the Work, and JAN-26-2007 FRI 01:35 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 28 (c) has by careful examination satisfied itself a s to: W the surface condition of the land arA all structures and obstructions on the Job Site, both natural and man-made, and all surface and subsurface waters and soil condition of the lot) Site and the surrounding area; (i) the nature, location and character c f the general area in which the Job Site is located its climatic conditia.ls, available labor supply and labor cost and available equipment mppl; r and egvapmeat cost; (iii) the quality and quantity of all mi:a rials, supplies, tools, equipment, labor and professional services no: mazy to complete the Work in the naanr<ear required by the Contract Dr ct ments; (d) all materials and equipment famished mier this Contract will be new unless oitberwise specified, and that all Work will be of good quality, free from faults and defects and in conforunanoe with the 1('oxitract Documents. If required by t$e Dwuees Representative, Cumberland County or the Lender's rgnsentative the Contractor shall furnish satisfactory e. v idenee as to the kind and quality of daterials and "14metrt. 22 Owner blereby represents and warrants to Contraci::x that Ownw. (a) Is a Maryland limited liability company wl ach (i) is skilled and experienced in development of projects similar to this project, and (ii) is financially solvent and shall remain so throughout the eonstrn.ction period, able to pay its debts as they Rados, and possessed of su fraciec::,t working capital to complete its obligations tinder this Agreement; and &.,, Contract Docuramts are complete ind accurate and are sufficient to construct the Work as outlined therein accordance with applicable laws, statutes, Imilding codes and regulations. ARTICLED ![ The Work, Time of Completion,, And Subeont Mdars 3.1 Contractor's twdextaking, obligations and covenar?ts in connection with the Work and the job site shall include the following: $.1.1 The Work.. The Contractor sliall vovide all materials, supplies, tools, equipment, labor and professional and non-professional services, and shall perform all sets and supply all other things (including but not limited to, all power, water and sanitary facilities for worlxntan during the progress of the Work) necesnc:y to perform the Work described in the Contract Documents, including all work expressly specified therein and such additional work as may reasonably be inferred there from, saving and excepting only such ite.-i ms of work as are specifically stated in the Contract Documents not to. be the obligation of the Contractor. The term "Work" is defined as nitming the totality of the obligations implied upon the Contractor by tho preceding sentence and by all other i JAN-26-2007 FRI 01;36 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 29 provisions of the Contact Docum,:.nts. The Contractor shall performs the Work according to the ContT• wt Document in accordance with applicable laws, statutes, building axles and regulations. 3:12 li . By executing this Contract, Cb:atractor acknowledges and agrees that the Job Site is a balanced s,-te with respect to soils. Wet or unsuitable soils necessitating the irr?port or export of on-site or ofd site soil, drying aerating of chemicaaly treating the on-site soil shalt pert coned by the Contractor and furl costs associated with borrow and drying of soils during all phases of the Work shall be borne by the Owner per Extn"bit A. Any defi:cts or failures in utility trenches, building pads or roadway areas caused by improper construction techniques shalt be the sole responm`bdity of Contractor and shall be repaired at Contractor's expense. 31.3 Camoletion Date and Notice to b acecd. Contractor shall commence the work promptly and within seven (7) days after receipt fiom Owner of a notice to moood (and not WI bre such notice) and shall complete the same as soon as good practice E+Znd due diligence will permit, and in any event, not later than the (.:ompletion Date sex forth in the Coamcdon Sxdnednle attached b ereto as Exhibit C, subject to the provisions of Section VI herein. Synch notice to proceed shall be given by Owner, if at all, after Owner AAll have received or obtained all of the following. (i) 8mal approval frc, m Cumberland County and all other governmental authorities of all drawings and specifications for the Work, (ii) ell public works agreer:nertts and all easements required to complete the work, ('iii) receipt of : my and all required water and sewer permits from the State Health Derkw memt, and (iv) approved financing for the Woric. In the event Own= shall not have obtained items (1) through (iv) above this Contract skull be null and void and neither party shall have any rights or claims *&Anst the other with the exception of any materials purchased and any cost fDr work performed by the Contractor. .1.? %Mgn igon and Construction ]?-roeedurs. The Contractor shall supervise and direct the work, using the Contractor's best skill and mntion. The Contractor shall hE.:vee control over construction means, raod ods, techniques, sequeances srnd procedures and for coordination all portions of the Work under the 0:)ntract, including coordinating of all the duties of its subcontractors. 3.1.5 Subcontractors. All Subcontractors shall be subject to the prior written approval of Owner, which approval shall not be unreasonably withheld. Prior to entering into any agreem+mt with a subcontractor. Contractor sl3all submit to Owner the nasr,:e of such Subcontractor and such information with Yebpect to the Svbcontractor as Owner may reasonably request. JAN-26-2007 FRI 01:36 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 30 11.6 Taxes. The Contractor shall pay all sales, consumer, use and other similar taxes fot the Work or portions thereof provided by the Contractor. 11.7 Notices. The Contractor shall give all notices and comply with all laws ordinances, rules, regulations and lawful orders of any public authority bearing on the performance of the N'i?oxk, 11.8 Safety Precautions gg Program The Contractor shall be respond-ble for imitiatitrg, maintaining and sul: ervi$ing all safety precautions and programs in connockiou with tie Work. 3.1.9 Safetg of Persons and ProtY. 3.1.9.1 The Coahaotor steal;: take all reasonable precautions for the safety of and doll provide all-reasonable protections to prevent damage, njury or loss to: (a) all employees on the Po ork and all other persons who may be affected thereby; (b) all the Work and all materials and equipment to be incorporated therein, R?x2her in storage on or off the Job Site, winder the cares custody or control of the Contractor or any Subcontractors; (c) other property at the situ or adjacent thereto, including trees, sbrubs, lawns, wal m, pavements, roadways, structures and utilities not designal od for removal, relocation or replacement in the court,e of construction; and (d) the work of the Owner ,.;,r others separate contractors. 3.1.9.2 The Contractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of a:r!.y public authority bearing on the safety of persona crr properly or their protection from damage, injury or loss. 3.1.9.3 The Contractor sh2:11 erect and maintain as required by existing conditions and the progress of the Work, all reasonable safegw-xds for safety and protection, including posting danger signs and other warnings against hazards, pr omulgating safety regulations and notifying owners an 1-1 users of adjacentt utilities. 3.1.9.4 When the use m storage of explosives or other hazardous materials or equipment is necessary for the execution of the Wr irk, the Contractor shall exercise the s JAN-26-2007 FRI 01:36 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 31 utmost care and shall carry on such activities cinder the supervision of proptrly qualified personnel, 3:1.10 Information and Reports. The Coat wtor from time to shall provide such information repotu, test results, certificates and samples as may be required of the Contractor by the Contract Documents or Cumberland County, PA. 3,131 Clem' ea U,p. The Contractor shall at all times keep the Job Site free from accumulation of waste materials or rubbish caused by the Contractor's operations. At the con ipletion of the Work, the Contractor shall remove all of the Contractor's3 waste materials and rubbish from and about the property as well as al l the Contractor's tools, construction equipment, machinery and surplus materials. If the Contractor falls to oleun up at the completion of the ) Vork, the Owner may do so and the cost thereof shall be charged to the Ccmtractor. 3.2 ownes'si undertakings, obligations and covenants in cwmaecdon with the Work and the Job Site: shall include the following: 3.2.1 Permits. Tests Fees and Inspectior.;s. Unless otherwise provided in the Contract Documents, the Owner rlaall secure and pay for grading and building permits and for all rther permits, bonds, easements, governmental fees, licenses and fimpections necessary for the proper execution and completion of the R'•wk. 3.2.2 Owners Representative. All instructions of Owner to the Contractor shall be forwarded to the Cont rac-1mr in writing through the Owner or the Owner's Representative. 3.2.3 Access. The Owner shall provide the Contractor and its Suboomtradws, their employees grad agents, with unobstructed access to the Job Site. 3.2.4 Stakeout. Owner sha11 have the Property comers and improvement locations staked by a registered :I cofessional laud surveyor and shall save and hold Contractor harm= from and against - any liability regarding the accuracy of markers and designations. 3.2.5 Substituted lvlsterials. In the event specified materials sbaA became unavailable, delayed or difficult -ro obtain, Owner shall immediately select substitute material. 3.2.6 Trees Ad Veeetatt?o . Owner .:agrees that coutrAdor shall not be responsible for loss of damage to spy trees or vegetation injured or destroyed during the course of performing the Work, except for vegetation and trees located• outside the limits of disturbance as shown ou the contract Drawings. 4 JAN-26-2007 FRI 01:37 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 32 3.2.7 Contract Doaunents Owner warrants and represents that Contract Documents are sufficient to enable the Cormaetor to perform the Work in accordance with applicable liras, statutes, building codes and regulations, that owner has engage d a licensed professional to prepare the Contract Documents and that tlae same are accurate and sufficient for the Contractor to perform the W ork. 3:2.8 Hazardous Substances. ContracUi r shall not be responsible for any subsud= Hazardous Environmental conditions uncovered or revealed at the job Site. The harming, storage and/or removal of subsurface hazardous or toxic materials enc*untered on site (other than those brought on site by the Contractor) are specifically excluded form this Agreement. Contractor shall immediately notify owner of the presence of known subsurface ham&us materials for handling and/or removal by others at owner's expense. 1.2.9 Roc1c Blasting and Excavation. Al.. rock blasting as may be reasonably required for the Work shall be tht sole responsibility and expense of the Owner. The excavation and m.1-site relocation thereof shall be the sole responsibility and expense of the Owner. 3.2.10 Exclusions. Owner shall be reg.,ansrlrle for all bonds, permits and mspectlon fees/stakeout, layout, eagirieearing or as built drawings /removal, relocation, adjustment, bi-xdng and/or supporting of overhead utilitieshanoval of buried or unf vemen debrishock blasting/wedand restoration or mitigation4ermane3A stabilization/landscaping/ and off- site disposal of otorm-water mawgp=eat pond sediment, all of which are excluded from the Contractor's. Woik under this Agreement. In the event Owner desires the ContractM to perform any of these excluded items, an appropriate change order shall be agreed upon and executed between the parties in accordance with Article X. ARTICLE IV Compensation and PaYmeAt 4.1 Total Contras Price. Owner shall pay the Total Coatnd Price, as such may be adjusted by change order, to the Contractor for the performance of the Work. Contractor shall be entitled to be paid for Work (or a specified part thereof] which has progressed to a point where the Work (or a specified part thereof) is substantially comp ate to be utilized for the purpose for which it is intended. Contractor shall be paid monthly !:.i)r Work completed and in place and in accordance with the Cost Breakdown Schedule set ftm b in Exhibit B attached heado and made a part heipot 4.2 Method of Fa t. Owner shall retain 0°/. of each payment requested by Contractor as retainage, and - shall, within thirty days of receipt by owner of an itemized invoice for payment, pay tb the contractor the remaining 100"/o in aet ordance with Exhibit C. Payment to the ConmrAor shall not be withheld or delayed becausa.; of delay, damage, defeats or other conditions caused by persons other than Contractor. JAN-26-2007 FRI 01:37 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 33 4.3 Condition To a egt. The obligation of inspection by the Owner to make any of the payments required under this Contract shall be subject -to any unsettled ctsims against the Contractor. Any . overpaymeuts to the Contractor shaA, unless otherwise adjusted, be repaid to the Owner upon Demand. 4.4 final hMnggon: Upon receipt of written notice that the, Work is ready for final inspection and acceptance, !'the Inspectors shall promptly make such inspection and determine whether the Work required by and under the Contract Documents h.as been fully performed. 4,5 Final Payme_nt. final payment under this Agreement, ina iding all retainages held by Owner, shall be made upon: (a) Completion of the Work by the Contractor, Note: Completion of the Work shall be v?hen asphalt surface course is placed. :off placement of asphalt surface is delayed, completion of work shall be upon plao,:ement of asphalt base course. (b) Approval in accordance with Exhibit C, except in the event that the approval is not being issued because of damage; defects or Gather conditions caused by pawns other' tban Contractor, (c) The ;Contractor executing upon final paymMA a release of all claims and liens agaipst the Owner or the Job Site arising urtdeir or by virtft of this Contract; (d) The (Contractor fumisbing written rdoases and waivers of all rights to claim or file liens,, property executed by any and all Subc o racton; (e) The Contractor has furnished satisfactory am dance that all Subcontractors have been paid in full; and (f) The Contractor has furnished any governm ental certifications or accxptances required by the Contrad Documents. 4.6 Figancan Informion. The Contractor shall not be requi„-ed to begin the Work on the Project until such time! as Owner provides Contractor with a corny of the fimancimg approval for the Project from ownees lender. 4.7 Ownership of Work. Upon acquisition or production by the Contractor, title to all parts and materials acquired or produced by the Contractor for i.he performance of the Work shall forthwith vest in the Owner. It is understood and agreed that property, title to which passes to the Owner solely by virtue of this Section 4.6 shall remain. at the Contractor, except to extent such property is covered by Owner's insurance carried pwsuant to Section 11. 4.8 No Arc; M-ce. It is rnutnally agreed that no payment made under this Contract shall be evideuee of the performance by Contractor hereunder, tither wholly or in part, and that no payment or vesting of title under Section 4.5 shall b-.: construed to be an acceptance of defective or improper materials or workmanship. 4.9 Liens. As a canditioa precedent to any payments under this Coat wt the Contractor and all Subcontrua rs'shall furnU affidavits that no claims, He as, or rights of any kind lie upon or x JAN-26-2007 FRI 01:38 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 34 have attached against the Work, or materials, articles or equipment famished for or in connection with'the Work. The Contractor agrees, and the payments desenW herein are contingent upon lute express condition that no liens or rights in connection with the Work shall so lie or attach. Tea the event any liens or rights in connectri-an with the Work shall remain after final payment under this Contract, the Contractor shall repay to the Owner all expenses Cmduding reasonable attorney's fees) inc rred by' the Owner in discharging such liens or rights in rein. Ao Contractor sball indemnify and hold l :aimless the Owner and the Lender against any assertion. of claims for mechanic`s liens by Sub contractor or material suppliers and against any assdrtion of security interests by suppliers o:' goods or materials in connection with the Work and shall cause any such lien filed agd ist the Job Site to be dismissed or bonded (with asurety acceptable to Owner and Leader) within five (5) days of the filling thereof. 4.14 No Waite Iastion by the Owner's Representative; any order, measurement, or certificate by the Owner's Representative; any order by the Owner for the paymmt of money; acceptance of any work or any extension of time; or any possession tt ken by the Owner shall not operate as a waiver of any provision of the Contract Documents or any power therein reserved to the owner, or any right to damages therein provided. Any waiver by owner of any breach of the Contract Doarn eats shall not be bald to be a waiver of any other or subsequent breach, and any waiver by Or max of any right to terminate this Contras -1 shall not be held to be a waiver of any breach of the Contract Documents, but Owner retains AU its rights to recover damages. ARTICLE V Default S.i Owner's lights as Default by Contractor. If the Contractor should be adjudged a banlaupi, or make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of the C,outwtor's insolvency, or if the contractor Gould refuse or fail, or be unable for any reason, to supply enough properly skilled workmen or proper materials, or if he should fail, or be unable for any reason, to make prompt payment to Sutwxinftwtors for materials or labor, or disregard laws, ordinances or the instruction of the Inspectors, or if he is unable to complete the work in strut, accerdance with the Constraction Scheduler attached hereto as bit $ or otherwise be guilty of a violation of any provision of the Cost ,tract Documents (a "Default"), then the Owner may, without prejudice to any other right or r=ody, and after giving the Contractor fifteen (15) days Written notice, in which Contractor has the :r ight to cure the Default; suspend the work and/or.terrubmte this Agrment, The remedy provided. by this Secdot 5.1 is in addition to and not in ]imitation of any other rights or remedies ay4abl-e: to the Owner. Notwithstanding the above provisions, the Contractor shall be liable to the Owner for any breach of this Conb-4d by Contractor, its agents, employees and subcontractors that ruse injury or damage to Owner; inebuding reasonable attorney's fees: 5.2 Contractor's Rights on Default by Owner. If the Owner should be adjudged abanknVt, or make a general assignment for the benefit of creditors, or if a receiver or trustee should be appointed on account of the Ovi nees insolvency, or if the Owner should. refuse or fail, or be unable for any reason, to wake pwmpt payment to Contractor as required by this Conrad or otherwise be guilty of a violation of any provision of the Contract Document.. (a "Default"), then the Contractor may, without prejudice to any other right or remedy, and of :x giving the Owner fifteen (15) days written notice, in which Owner has the right to cure tlx: Default, suspend the work and/or terminate this Agreement. The remedy provided by this Soyzon 5.2 is in addition to and not in rmur. 9 JAN-26-2007 FRI 01:38 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 35 limitation of any other rights or remedies available to the Cur im ctor. Notwithstanding the above provisions, the owner shall be liable to Contractor for any breach of this Contract by Owner, its agents, employees and the Owner's other contractors and their subcontractors that causes injury or damage to Contractor, including reasonable attorney's fees.. ARTICLE VI De_ lays and Exfeoions The time during which tontmow is delayed in the performance of the Work by the acts of omission or cx emission of the Owner, Or of the employees or agents of the Owner, or by the ants of God, or abnormal slim; tie conditions, which the,, Coubactor could not reasonably foresee or provide against, or other causes beya aid the Contractors control, shall be added to the time of completioc a of the Work as set forth in Section 3.1.2 hemot provided than the Contractor shall not be "tied to any ex tension of time for delays resulting from any such causes, unless it shall have notified the Owner in writing within ten (10) days after the com nencement of each such cause or the oecurtenoo thereof and of 6,., probable duration thmftf. Owns' and 3ontractor shall ascertain jthe facts and. the extent of the delay and Owner shall then extend the time for com; rleting the Wotk when the facts justify such an extension. The G:-ntractor sbali not be entitled to and here )y waives any and all Jaemagm which it may suffer by reason of delay to the Contractor in the perf a me a of the Work, or auy portion thereof by any of the aforesaid owents, the extension of time granted here n being Contractor's solej remedy. The Contractor shall not be Mile for any damages which were not direr dy caused by his acts andYor omissions. ARTICLE VII Time Schedule 7.1 Prior to the commenceauent of any portion of the Work, Coe *actor and Owner shall agree upon a Construction Schedule (which shall be attached hereto, made a part hereof and marked Exhibit pJ showing the various phases of the Work with dates of completion of each such phase. A Notice to Proceed shall be issued for each phase of the 'York set forth on the Cmtraction Schedule. Such sehodule shall be supplemented or amender: from time to tuna as cirgmhstances may require, pm-Adel, however, that the Completion Date inall not be extended except pursuant to Article V1 hereof. Such, schedule, and any suppeemetes, or amendments thereto shall be subject to the appioval of the Owne's RepmseaWve. 7.2 Unless otherwise; notified by Owner in writing the Contractor shall cary on the Work and maintain its progress in accordance with the Construction Sc hedula attached hereto as Exhibit % even if the Contractor is in default of arty of the Contract Doc=ents for any other portion or phase of the Work. All notices or oonnmim'cations to the respwdve parties shall be in writing and delivered to the Con#acto?r or the Owner, as the case may be, addressed as follovy s: If tD Owner. )ALM, LLC 2005 Commerce Road Suite A Torest Hill MD 21050 Attu Dale Hevesy, Vice President ,e JAN-26-2007 FRI 0'.:38 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 36 If to Contractor. Liberty Excavators, Inc. 4402 Gettysburg Road. gamp hill, ?A. 17011 Attn: Don Larkin, Project Manager ARTICLE IX Enttrltts Itea»o ibility Owner shall be solely r0.sponsible for furnishing to Contractor all necessary and required engineering and s:keout work in order for Contractor to complete the Work heanmdex. ARTICLE X Clianmea In the'Wu&, Gains for Add Lai Cost 10.1 gMg in the *wk- b O9vner. The Owner, without n. validating this Contract may order, changes in the Work within the general scope of the Contract consisting of additions, deletions or other - envisions, the Total Contract Price and the Completion Dates being adjusted accordingly. AR: such dumps in the Work shall be autluxized by diange order executed by ow= and Cout *W and shall be performed under the vi: Ec ablo conditions of the Contract Domme nts. 10.2 Alternate Items. Alternate Items shall be performed by the Contractor if and when required on the teams and conditions shown on the attached Bxhabit A. ARTICLE Iix Insurance and Indemnification 11.1 CoinhitY Insurance. 11.1.1 The c ow ractor shall purchm and maintain insu ranee for protection from the claims set forted below wbich arise out of or result fmm tl:ne Contractor's operations under this CQn whether such operations be by the Contractor or by any Subcontractor, or by anyoue,directly or indirectly employed by any ot'them, or by anyone for whose acts my of them may be liable: a. claims under workers' or worlrmeu's com;wination disability benefit and other similar employee benefit acts; b. claims for damages because of bodily injury: occupational sickness or disease, or death of the Contractor's employees; c. comprehensive general liability, and damage insurance having a combined limit of not less than. $2,000,000.00; d. claims for damages because of bodily injury, or death of any person or property damage arising out of the ownership maintcaunce or use of any motor vebicle. S 1z 11 JAN-26-2007 FRI 01:39 PM OPERATIONS DEPT FAX NO. 717 763 0922 P. 37 11. 1.2 The insurance required by Subparagraph 11. sl.all be written for not less than the limits specified above or required by law, whichever is greater. 11.1.3 The insurance required by Subparagraph 11.1.1 shall include contractual liability insuranci applicable-to the Contractor's obligation 1,rnder Section 11.8 11.1A Certificates of insurance or, if required by Owner, policies of insurance acceptable to the Owner shall be submitted to Ownees RepreseaiWve for transmittal to the Owner prior to pommencement of the Work. These owtificates or policies shall contain a provisio4 that coverage dforrded under the poli6a; will not be cancelled until at least thirty (30) days prior written notice has been given to the Owner. 11.1.5 All insurance carried by Contractor shall name Owner and any Leader of Owner as additional insureds, as their interests may appear. 11.2 Owner's Cubit' . The owner shall be responkbia for purchasing and maintaining ownexes li"ity insurance and, at the owner's option, MY puurbme and maintain additional insurance for prottedon against claims which may arise frouri opera#ions under this Contract. 11.3 Pro la. `e. The Owner shag purchase and maintat in buuildoes risk insurance upon the entire Work at tha Job Site. This insurance shall include the, interests of the Owner, the Lender, the Contractor and Subcontractors in the Work. 11.4 Proof of Insurance. Proof of such insurance shall be pv)vided to Contractor by Owner as needed. 11.5 Waiver of Subrojation. The Owner and the Contractor wdve all rights against (1) each other and the Subcontractors, agents and employees of each other:. and (2) the Owner's Rotative and separate contractors, if any, and their subcontractors, sub-subcontractors, agents and employees, for dmgcs caused by fire or other perils it!) the extent covered by insurance obtained pursoant to this Paragraph 1 I or any other properi y insurance applicable to the Work, except such rights as they may have to the proceeds of m-ch izYSUmce held by the Owner as trustee, Ouch waiver being conditioned upon the inclusirz of a Provision in the policy or policies of msu ce providing that any such waiver K" not otherwise effect insures coverage under such policy or prejudice any rights of the insured to recover tweurnder. The owner or the :Contractor, as appropriate sball require of any separate contractors, subcontractors and sub-subcontractors by appropriate i grooments, written where legally required for validity, similarly waivers each in favor of rill other parties enumerated in this Subparagraph 11:5. 11.6 Adh meat of Uss. The Owner shall bave power to adjust and settle any loss with the insurers unless one of the parties in interest shall object, in writing i vithin five days alter the occuurance of loss to the Oviaces exercise of this power. 11.7 Larder's &Mc rewents. Owner and Contractor aclawwledge that the insurance requirements set forth in this Contract and in the Contract Documents z1ay be required to be varied by the Lender or by Owner's insurance carrier, and Contractor agrees to enter into suitable modifications of the provisions hereof upon the request of the Owner, provided Owner bears any additional cost oceasionod'thereby. n JAN-26-2007 FRI 0':39 PM OPERATIONS DEPT FAX NO, 717 763 0922 P. 38 11.8 Indemnification 11.8.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmlessi the Owner, the Owner's Representatitin;, and their agents and employees from and against all claims, damages, losses and elclpenses, including but not limited to reasonable attorney's fees, arising out of or resulting from the performance of the Work provided that any such claim, damage, kiss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work itself), including the loss of use resulting therefrom, and (2) is caused in whole or in putt by any negl cot act or omission of the Contractor, and Subbontrac tor. anyone directly or indirectly c mployed by any of them, or anyone for who*e acts any of than may be liable. Such obligation shall not be construed to negate, *bridge or otherwise reduce any other rigN or obligation of indemnity which would otherwise exist as to any party or person de: scribed in this paragraph 11.8.1. 11.8.2 In any end all claims against the Omer, the Owner's RepreseuMve or any of their agents or employees by any employee of the Contractor, any Suboontractor, anyone directly or indirectly employed by any of them or anyone for whose acts apy of them may be tabl% the iade:nnificst. obligation under this Paragraph 11.8.2 shall not be limited in any way by any limitation on the amount or type of damages, compeosation or beu4ts payable by or for the Contractor of aay Subcontractor under workers' or workme*'s compensation acts, disability benefit ca,:ts or other employee benefit acts. ARTICI E XU Defective Work: Contractor's Wtu rxntY 12.1 lteiected Work- The Contractor shall promptly corroct all Work reject teed by the Inspectors as defective or as failing to coaform to the Contract Docamneu ; whether observed before or after substantial completion of ffic Work and whether or not fabrix;ated, installed or completed. The Contractor shall bear sill costs of correcting such rejected work and such costs shall not be a cost of the Work. 12.2 Contractor's Waftwm If within one (1) year after the dabs of completion of the Work as stated in Article 4.5 (Completion of Work), the Work is found to be defective by the Engineer or approving govegnmental moborities, the Contractor sWil promptly, after notice firm and without cost to Owner, correct such defective Work, ex(.;ept that the Contractor shall not be responsible for defects or damages caused by otlerx. T1cs obligation shall survive both final payment and termination of this Contract. 123 _Owner's rialtt toi Correct, If Contractor does not proceed 'with the correction of such defective or nonconforming Work within seven (7) days after a ral.uest to do so, the Owner may make sucb correction gad may remove it and may store the materials at the expanse of the Contractor. If the Contractor does not pay the cost of such removal and storage with seven days thereafter, the Owner may, upon seven additional days iwitten notice, sell such materials at auction or at private sate and shall account for the net pro-weds thereof, after deducting all the costa which the Contractor should have borne, the difference shall be charged to the Contractor and an appropriate change order shall be issued. If the payments then or thereafter due the 3 JAN-26-2007 FRI 01:40 Phi OPERATIONS DEPT FAX NO. 717 763 0922 P. 39 t Con rector are not ,'sufficient to cover such amount, the Contractor shall pay the difference to the Owner. ARTICLE M j Miseellauteons 13.1 Inte tretatioi of ntpct Documents. The Coutmd Doctutnents shall be construed and inteaprcted i* accordance with the laws of the State of Pamsylvania. If anydag in the Contract Documents is found to be inconsistent or in conflict witb any other provision in such dooame ats, this Contract. shall take precedent over all other documents. 13.2 Time of Ess_wes_. Time shall be considered of the eamce of this Contract. 13.3 Headings.. Ile headings of the paragtapbs are for ao avenience only and shall not affect the nvmnin,p or interpretations of the cotuteats theroof: 13.4 Saw ill : If any provision of Uds Contract shall be held violative of guy applicable law or unefteeable for any reason, the invalidat1 or rmenforceability of any such provisions shall not invalidate or render tmertfarceabfr, any other provision hereof which sW remainiin full force and effeck 13.5 Caopecationr and Tunehnm The parties shalt dilipmay wort to cause all conditions precedept toi the obligations contemplated by this Agtxxmeat to be met in a timely manner and where necessary, to cooperate with each other fit ,order to effecttmte the aforesaid. 13.6 Binding Effect. The terms and conditions of this coi rract shall imre to the benefit of and bind the mxz ;essoas and assigns of the parties hereto. 13.7 Coatltlete Ait>reanent. This Contract represents the twaplete understanding between the parties hereto and mpersedes ail prior uegotiatin.as, representations or agreements, whether written or oral, as to matters deseazbed bertim This contract may be amended only by written instrument signed by both parties. 11 o requiremefto, obligations, remedy or provision of this contract shall be deemed to hove been waived, unless so waived expre aly id writing and any such waiver of any suat:? provision shall not be considered a waiver of any right to enforce such provision tbemfti:r. 13.8 Q60-W- ani Cauaterpatts. This agreement may be signed in one or more munterparts, each of whirl sW be deemed to be an original aM ;dl of which together shall constitute one and thetsame instrument, f ` JAN-26-2007 FRI 01:40 PM OPERATIONS DEPT FAX NO, 717 763 0922 P, 40 IN WrrNESS W EkEOF, the parties hereto have executed this Contract as of the day and year first above written. ATTEST: B'Y: DLM, LLC(SEAL) ATTEST: BY: Libcrty Excavato . Yne.(SLAL) F- A Owner Name Tatlc: ?` Conto Nam(.. Title: Karri A. Forsythe From: Don Larkin [donlarkin@libertyinc.net] Sent: Monday, June 05, 2006 3:17 PM To: 'Cathy Meloy' Cc: Karen Franklin (karenfranklin@libertyinc.net) Subject: Yellow Breeches Release Cathy, Any word on a release we can have the neighbor sign giving us permission to enter his property to complete demolition of the barn at Yellow Breeches? Don Larkin Estimator/Project Manager Liberty Excavators, Inc. 717-761-8461, ext 236 www.libertyinc.net Page 1 of 1 Karri A. Forsythe From: Larry Fink [larryfink@libertyinc.net] Sent: Tuesday, June 06, 2006 6:20 AM To: Don Larkin Subject: Re: Need to knows Thank you Don . Jone will be done the latter part of this week. I will set up to dig some probes this week. --- Original Message ---- From: Don Larkin To: 'Larry Fink' Cc: Karen Franklin ; 'Dustin Daubert' Sent: Monday, June 05, 2006 1:33 PM Subject: RE: Need to knows 1. BWB will be there the first half of the week of 6/19. 2. Karen is working on the reno mattresses. She expects to have it worked out by tomorrow morning. Either she or I will let you know as soon as we know when they will be delivered. 3. Hayduk and Douglas both have their permits in process, so I don't anticipate this being a problem. When will John Weibley be finished at Yellow Breeches so he can start Trindle? Before he starts excavation, we need to dig some probes to get some projected quantities for Landmark, and to aid in scheduling with one of these blasters. 4. Yes. BWB is NOT taking the concrete and brick with them. We save several thousand dollars by leaving it on site. DEP has said it is fine to bury it there. From: Larry Fink [mailt:o:larryfink@libertyinc.net] Sent: Monday, June 05, 2006 9:43 AM To. don larkin Subject: Need to knows Don Im just sending you this so we know what we need this week. #1. When can we get BWB into Yellow Breeches ? #2 Where do we stand on the Gabeon Mattresses for Keller? #3 Any imformation on blasting permits for Trindel Springs. #4 Are you shore that BWB is not takeing thr concrete out of Yellow Breaches. Im just asking this because I was asked by Cris Huges. 7/31/2007 Page 1 of 1 Karr! A. Forsythe From: Jeff Rhodes Urhodes@gemcrafthomes.com] Sent: Monday, June 19, 2006 5:01 PM To: Donald M. Larkin Cc: Aaron Wheeler; Karen L. Franklin; Sherri L. Miller Subject: RE: Yellow Breeches Don, I have the application completed and I' am waiting to send in together. I will fax a copy to you on Tues. Thanks Jeff From: Donald M. Larkin [mailto:donlarkin@libertyinc.net] Sent: Mon 6/19/2006 1:06 PM To: Jeff Rhodes Cc: Aaron Wheeler; Karen Franklin; Sherri L. Miller Subject: RE: Yellow Breeches Jeff, No, we have not completed the application yet. Has the permit been transferred from Keith Peiffer to DLM yet? If so, please fax us a copy of the permit so we have the information needed to complete the co-permittee app. Thanks, Don From: Jeff Rhodes [mailto.jrhodes@gemcrafthomes.com] Sent: Friday, June 16, 2006 3:05 PM To: Donald M. Larkin Cc: Aaron Wheeler Subject: Yellow Breeches Don Have you completed the co-permittee agreement for Yellow Breeches Farm? Please let me know if you need anything. Thank you, Jeff 7/31/2007 Karr! A. Forsythe mwm? From: Donald M. Larkin Sent: Wednesday, June 21, 2006 8:38 AM To: Larry B. Fink; 'Karen Franklin' Cc: Christopher A. Hughes; 'Dustin Daubert'; 'Jeff Rhodes'; Aaron Wheeler Subject: Meeting at Yellow Breeches Farm I've scheduled a meeting with Jeff Hawkens (the neighbor at Yellow Breeches Farm) for this Friday, 6/23 at 7:30 a.m. We are going to discuss his concerns regarding grading after the building demolition is complete as well as the likelihood of saving any of the brick wall from the barn. I have also invited Greg Sholly from BWB. Chris, Jeff, & Aaron - If you're unavailable, I think we can take care of this, but you're certainly welcome to attend if you wish. Don Larkin Estimator/Project Manager Liberty Excavators, Inc. 717-761-8461, ext 236 www.libertyinc.net 1 Page 1 of 2 From: Donald M. Larkin Sent: Monday, July 17, 2006 5:57 PM To: 'Dustin Daubert; lesgouffer@libertyinc.net; Rick Evans Cc: 'Larry Fink'; Chris Hughes Subject: FW: Outstanding Issues Related to the Hawkins Property FYI The information in the attached letter is consistent with my understanding of the situation and with what we have agreed to do to mitigate it. From: Hawkins, Jeff [mailto:jhawkins@passhe.edu] Sent: Monday, July 17, 2006 5:36 PM To: jrhodes@gemcrafthomes.com; Donald M. Larkin Cc: awheeler@dimllc.com Subject: Outstanding Issues Related to the Hawkins Property Jeff, Attached is a letter addressing the outstanding issues related to the clean up and restoration of my property. Please review and give me a call. Thanks for your prompt attention. Don, Please do not hesitate to respond if I mischaracterized any of the responsibilities that Liberty has assumed in helping to restore my property. Thanks. 7/31/2007 Page 2 of 2 Take care, Jeff Jeffrey B. Hawkins 2986 North Second Street Harrisburg, PA 17110 717-720-4070(ph) 717-7204213 (fax) jhawkins -passhe.edu www.passhe.edu Please note that my email address has changed to ihawkinsA)passhe.edu. Please make this correction in your address book. Thank you. *...n.t......,...,,k*.,.««y,.,t........R....,t.,..«..*..*....«.,R..X...**«,R,,...*«..«.#.,N...«....*..«..«*.nM*..?«...,r*«.....«..«... #.,k*.*.*....; INFORMATION CONTAINED IN THIS EMAIL TRANSMISSION AND ANY ATTACHEMENTS MAY BE CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT, WORK PRODUCT, OR OTHER LEGAL PRIVILEGE. IT IS INTENDED FOR THE EXCLUSIVE USE OF THE RECEPIENT NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE DO NOT READ, DISTRIBUTE OR REPRODUCE THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE NOTIFY THE SENDER BY EMAIL REPLY OR TELEPHONE AT (717) 720-4070. THANK YOU! 7/31/2007 Page 1 of 1 Karri A. Forsythe From: Jeff Rhodes Urhodes c@gemcrafthomes.com] Sent: Friday, September 08, 2006 11:44 AM To: Donald M. Larkin; Karen L. Franklin Cc: Aaron Wheeler; Tom Scannell Subject: Yellow Breeches Don, I have a meeting scheduled with Jeff Hawkins on Wed. 9-13-06 at 8:00 A.M. on site. Be prepared to discuss past issues with the fallen bam wall and any issues related to your conversations with him regarding work that you agreed to do ( berm, lot grading, and tree protection). Also their seems to be more problems that have came up that include, starting equipment before 7:00 A.M., damage to trees root system along his property line, clumps of dirt on his driveway and property, and the running over of his newspaper. Thank you, Jeff Rhodes Field Supervisor Manager UK LLC 410-877-7350 ext 2344 410-877-7370 fax 443-604-2299 cell jrhodes@dimllc.com 7/31/2007 Yellow Breeches Page I of 2 Karri A. Forsythe From: Donald M. Larkin Sent: Friday, November 10, 2006 12:53 PM To: 'Tom Scannell' Subject: RE: Yellow Breeches Monday 5/8/06 was our first day on site actually performing work. We started clearing that day. Let me know if you need anything else. Don From: Tom Scannell [mailto:tscannell@dlmllc.com] Sent: Friday, November 10, 2006 11:42 AM To: Donald M. Larkin Subject: FW: Yellow Breeches Don, Would you be able to easily access the exact day from your work orders or tickets? See below. From: Cathie White Sent: Friday, November 10, 2006 10:54 AM To: Tom Scannell Cc: 'Mary McCarron' Subject: FW: Yellow Breeches Tom - Can you help me out on this???? Thanks, Cathie From: Mary McCarron [mailto:Mmccarron@chesapeaketitle.com] Sent: Friday, November 10, 2006 10:50 AM To: Cathie White Subject: Yellow Breeches Cathie: Could you please find out the exact day work began on the Yellow Breeches Property? I need this for the title insurance. Thanks so much! Mary McCarron Chesapeake Title Company, LLC 7/31/2007 Yellow Breeches loo West Road, #215 Towson, MD 21204 Phone: 41o-321-6316 x136 e -fax: 41o-832-4084 office Fax: 410-321-6319 email: mmccarron(a)chesaneaketitle com Please visit us at www, chesapeaketitle. com Page 2 of 2 7/31/2007 09'797`9£9$ < -- ImoZ Pig 9Z'171`0I 96'0 47 000'9L9`Oi saml213.LHIAIsaL 98£ 00'09 i `£ 00'05 i `£ S'I 000' l 'IO2LLNOO DIddd2LL 08C 00'096`9 00'98 xS 000'OL NOI.LVdOJSaUJN2lWaAVd 9L£ 00'000`9 00'000`9 Yg 000'1 DNIISIXg OZ NOLLOgNNOD OL£ 091796 99'81 N.L 00079 SQdO2illacNfl'I'IIdXO` EI2NOIS 99£ 00'9LL`IZ 00'9Z£ Ti 000'L9 £7L alX.Ld 9NM09 AWAC bO'd 09£ 00'9I6`Z 00'916`Z dg 000'1 JNISS02IO NIvmus 99£ 00'09L`Z 00'9ZI va 000'ZZ M011H.LSflulu 09£ 00'078 00'078 d3 000'1 k IgWHSSV ddOM019 97£ 00'OL9`7Z 00'015`£ d3 000'L SJKVUQXH g2IId 07£ 00'99L`6 00'980`1 dg 000'6 SgA'IVA FIIVD 9££ 00'069`1 00'99Z V21 000'9 SJNILUIIQ 0££ 00'SZ7`IZ 00'SZ7`IZ dg 000'1 g2IOg-gDIAURSgQISJNOJ I7/£ 9Z£ 00'000`7I 00'000`1 `dg 000'71 MINUS ,.7/£ OZ£ 00'577`7 9L' I £ Ti 000'071 SINd2IQAH U04 - at U I UHIVM IQ ,,9 O I £ 9L'£8I`907 90'8£ Ti 000'SL9`01 aM'I 21aIVAN IQ A 90£ S'I 000' I NOI.Lv2IO.LSaN 0l Z S'I 000' I JNRPdg'IO ON Mol Pig aoud ltufl SI9Ufl '14iluuno uoilduosaQ tualipig S'W1.O.L (Hu t'mZ 011-"X *** dent kuaQ - lsg atnZ laleM la2png I E I L I 17:91 LOOZ/I £/LO r• Subcontract Agreement Liberty Excavators, Inc. 4402 Gettysburg Road Camp Hill PA 17011 Telephone: 717-761-8461 Fax: 717-731-4634 To: BWB, Inc. 400 Adams Street Steelton, PA 17113 Greg Sholly Telephone: 717-939-3679 Fax: 717-986-8352 Date: April 24, 2006 Project Name: Yellow Breeches Farm Project No: 206011 Project Location: Cumberland County Lower Allen Township Demolition of structures including removal of demolition debris from site. Clean fill such as brick, block, & concrete to remain on site for the lump sum price of Thirteen Thousand, Six Hundred Forty Dollars ($13,640.00.) • Commencement Date of Work is May-1,489fr ,t Tl N of N7' dN RECD l ?f 6F. F}?/g,?, T?,?a? WN0 RESULTS 1.40 ?,F-0uA tp wog?CiruG 4Pr tF-cATroN. r Notes: 1. A satisfactory insurance certificate must be submitted and approved prior to start of work. 2. Retainage to be withheld at 0%. 3. The following is a list of Attachments that are included as part of this agreement: Attachment A - Insurance Requirements Attachment B - Partial Release of Lien Attachment C - Final Waiver of Claims and Liens Attachment D - AIA G702/G703 Invoicing Requirements Invoice must state Project Name and Project Number IMPORTANT: Invoice to be submitted before the 20th of the month. Payment can be expected as received from Owner. Subcontractor must supply Certificate of Insurance covering Workers Compensation and Public Liability, which are to be returned with signed copies of this Subcontract. No payments will be issued until signed Subcontract and Certificate of Insurance have been received. Sign and Return Both Copies within Ten (10) Days - Executed Copy Will Be Returned The terms and conditions on the reverse side are apart of this agreement. Accepted: Liberty Excavators, Inc. t3?.i z3 . ?Nc. No f Co ? ny tho Signature ARichard resident Printed Name and Title Date Date TERMS AND CONDITIONS OF CONTRACT BETWEEN LIBERTY EXCAVATORS, INC. ("we", "us", AND "our") AND SUBCONTRACTOR OR SELLER NAMED ON OTHER SIDE ("you" AND "your") 1. You will perform your Work and fumish the required materials and labor when notified and in such manner that others connected with the Project will not be delayed or hindered. Time of your performance and delivery is of the essence. 2. All Federal, State, and Municipal Taxes due in connection with your Work shall be paid by you unless otherwise provided herein. 3. Compensation to you for extra labor or materials which are not included herein shall be payable by us only if authorized by us in writing prior to your furnishing the extra labor or materials. 4. We must have all required certificates of insurance before you perform any work at the jobsite. If a performance bond is required, you will deliver it to us from a surety acceptable to us within 48 hours after the execution of this Contract. 5. All debris and refuse created by your Work will be removed daily from the jobsite. If you fail to do so and if we remove it, then you will be back charged for our expenses. If multiple Contractors are involved, the pro-ration shall be at our discretion. 6. You represent that you have reviewed the Contract Documents between us and the Owner and you assume toward us, with respect to your Work, the same obligations that we have assumed toward the Owner. In the event of a conflict between this Contract and our Contract with the Owner, the Contract between us and the Owner, including referenced drawings and specifications, shall control. 7. To the fullest extent permitted by law, you shall indemnify and hold us harmless from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of your work under this Subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by your negligent acts or omissions, or the negligent acts or omissions of your Sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in these terms and conditions. In claims against any person or entity indemnified under these terms and conditions by your employees, your Sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under these terms and conditions shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for you or your Sub-contractors under workers' compensation acts, disability benefit acts or other employee benefit acts. 8. As a separate covenant, you waive the right to file a mechanics' lien against the Project. This waiver shall extend to and be applicable to extra work and materials supplied to the Project. You will give us a complete acknowledged release of liens when your Work is completed or when you have delivered your materials. If you do file a lien, you authorize any attorney of any Court of Record to appear for you and mark the lien satisfied and a copy of this Warrant of Attorney shall be sufficient authority. 9. You will comply fully with all applicable laws and regulations. This includes Prevailing Wage Laws (if applicable) and the standard set forth in the Rules and Regulations promulgated under the Construction Safety Act and other OSHA-related provisions to the extent applicable ?o your Work. You will indemnify and save us harmless on account of your failure to do so. 10. You represent that you have title to all materials furnished or to be incorporated into the Work. 11. You will not enter into direct agreements with the Owner or Architect relative to new or additional work for the Project unless previously approved by us in writing. 12. You will comply with the applicable provisions of the Civil Rights Act of 1964 and Executive Order No. 11246, as amended. You represent that you do not discriminate based on race, color, religion, sex, national origin, or non job-related handicaps. 13. Neither the performance of this Contract or the right to receive payment shall be assigned by you without our prior written consent. 14. The Contract is subject to Owner/Architect approval of you and all your Subcontractors and suppliers, and you shall provide us with their identity and your financial arrangements with them, if required. 15. Should you, at any time, fail to provide sufficient skilled workmen or sufficient quantities of materials of proper quality, fail to prosecute the Work with promptness and diligence, fail to perform any agreements herein contained, or should any of your workmen engage in any form of work stoppage or should honor any picket lines, then, without prejudice to any other rights we may have, we may, upon three (3) days' notice to you, provide workmen at your expense, or terminate this Contract and take over all material and equipment at the jobsite, and complete the Contract at your expense, holding you liable io the extent that funds otherwise due you under this Contract we insul'Iicieni to reimburse us the cost of such completion. You shall, prior to commencing any Work, provide us with copies of all Collective Bargaining Agreements to which you are a party and which relate to the Project. 16. In addition, we shall have the right to terminate this Contract in the event of your insolvency or commission of an act of bankruptcy, filing of a petition in bankruptcy by or against you, appointment of a receiver for you or your assignment for the benefit of creditors. The acceptance of performance or material after the occurrence of any of the foregoing shall not constitute a waiver thereof. 17. If we should, at any time, determine that you are not paying your employees, Subcontractors, or suppliers, we shall have the right to do so directly by withholding payments from you; and, if we thereby expend more monies than are due you, you shall be liable to us for such excess upon demand. You shall indemnify and save us harmless, including attorney and paralegal fees and court costs, on account of any demand made upon us on account of our payment bond occasioned by your failure to make appropriate payments. 18. This Contract contains the complete agreement between the parties relating to the subject matter and it may only be changed by a writing signed by both parties. 19. The failure of us to insist upon complete performance or the waiver by us of your failure to comply shall not be deemed a waiver with respect to any subsequent act or failure to act by you. 20. Contractor may apply any payments otherwise due Subcontractor hereunder to any other indebtedness, liability or obligation of Subcontractor to Contractor whether under this Agreement or any other agreement or circumstance. Page 1 of 1 Karen L. Franklin From: Hawkins, Jeff Uhawkins@passhe.edu] Sent: Monday, July 17, 2006 5:36 PM To: jrhodes@gemcrafthomes.com; Donald M. Larkin Cc: awheeler@dimllc.com Subject: Outstanding Issues Related to the Hawkins Property Attachments: Liberty_Gemcraft_Itr2.doc Jeff, Attached is a letter addressing the outstanding issues related to the clean up and restoration of my property. Please review and give me a call. Thanks for your prompt attention. Don, Please do not hesitate to respond if I mischaracterized any of the responsibilities that Liberty has assumed in helping to restore my property. Thanks. Take care, Jeff Jeffrey B. Hawkins 2986 North Second Street Harrisburg, PA 17110 717-720-4070 (ph) 717-720-4213 (fax) ihawkins(@oasshe.edu www.passhe.edu Please note that my email address has changed to jhawkinsQa passhe.edu. Please make this correction in your address book. Thank you. INFORMATION CONTAINED IN THIS EMAIL TRANSMISSION AND ANY ATTACHEMENTS MAY BE CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT, WORK PRODUCT, OR OTHER LEGAL PRIVILEGE. IT IS INTENDED FOR THE EXCLUSIVE USE OF THE RECEPIENT NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE DO NOT READ, DISTRIBUTE OR REPRODUCE THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE NOTIFY THE SENDER BY EMAIL REPLY OR TELEPHONE AT (717) 720-4070. THANK YOU! 10/24/2006 July 17, 2006 Mr. Jeff Rhodes Gemcraft Homes 2205-A Commerce Road Forest Hill, MD 21050 VIA CERTIFIED MAIL/EMAIL/FAX RE: Clean Up and Restoration of the Hawkins' Property Mr. Rhodes: I am following up on our discussion this past Friday and the meeting held on July 6th with Aaron Wheeler from Gemcraft Homes ("Gemcraft") and Don Larkin of Liberty Excavators, Inc ("Liberty"). As agreed during the July 6th meeting and pursuant to a written agreement, Liberty did the following work on July 8th: ? Moved brick from my yard to within the footprint of the barn. ? Removed a crushed shed and its concrete foundation. ? Removed two large, crushed trees including the stumps. ? Spread clean fill over most of the disturbed area in my yard. Although there remains a large pile of brick on my property, Mr. Larkin indicated that Liberty would be removing the debris late this week or early next week when it completes the grading of Gemcraft's property, which abuts the southern aspect of my property. Aaron Wheeler stated that Gemcraft would be willing to have Liberty construct a "beauty/privacy" berm along the southern portion of my property. We also discussed potentially using Black's Landscaping to plant some trees and restore the lawn that was destroyed. Black's Landscaping is two doors down from the construction site and is currently under contract with Liberty to do seeding of the swales/drainage basins. Mr. Wheeler's offer to plant trees and restore our lawn is consistent with the agreements we made during phone discussions over the past few weeks. So as to avoid any confusion between the obligations of Liberty and Gemcraft, I recommend that the parties define who will be responsible for what. My take is that Liberty expects to be relieved of its responsibilities when it completes the final rough grading of the property and the construction of the privacy berm. If this is not the case, the parties need to let me know. In addition, I need to have a general idea as to what the final rough grade and the privacy berm will look like before it is constructed. With regard to the planting of trees and the restoration of my lawn, I propose that Gemcraft do the following: ? Agree in writing to use Black's Landscaping or other acceptable landscaping company for the planting of trees reasonably sufficient to restore the privacy lost by the destruction of trees, shrubs, and the shed. ? Agree in writing to use Black's Landscaping or other acceptable landscaping company for the restoration of the destroyed lawn with quality top soil and grass seed. This would include a final grading of the land. ? Agree in writing to have the restoration work completed by September 30, 2006. Finally, I would note that there are two large trees on my property that will need lateral support. If the present grade of Gemcraft's land is continued in this area, those trees will not have adequate lateral support. The elevation of the land in this area has been the same for over 150 years. Any disruption of the land that removes the lateral support of my property will be a violation of my common law right to lateral support and is an action I will challenge. Your prompt response is anticipated and will be appreciated. I would like to have a signed written agreement with Gemcraft completed by July 26, 2006. If you have any questions please do not hesitate to contact me at 717-697-0277 or 717-720-4078. Respectfully, Jeffrey B. Hawkins cc: Mr. Don Larkin ' COMMONWEALTH OF PENNSYLVANIA rnl INTY OF- COMBBRLA111D Mag. Dist. No.: 09-1-01 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address: 400 BRIDGE ST OLDS TOWNE COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: 117 i 774-5989 17070 LIBERTY EXCAVATORS INC Q 4402 GETTYSBURG RD O MR DON LAREIN CAHILL, PA 17011 019 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rEAWXINS, JEFFREY/BARBARA 1450 MAIN STREET LISBURN pCHANICSBURG, PA 17055 VS. DEFENDANT: NAME and ADDRESS FGEMCRAFT HOMES INC, ET AL. 2205 COMMERCE ROAD APT/STE A JEFF RHODES FIELD SUPVR LFOREST HILL, ND 21050 Docket No.: CV-0000498-06 Date Filed: 9/07/06 THIS IS TO NOTIFY YOU THAT: LIBERTY EXCAVATORS I, NC Judgment: DISMISSED W/O PREJUDICE (Date of Judgment) I 7 J DEF 003 Judgment was entered for: (Name) Judgment was entered against: (Name) in the amount of $ F] Defendants are jointly and severally liable. F] Damages will be assessed on Date & Time ® This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ .00 0 Judgment Costs $ 06 Interest on Judgment $ . Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANY Tt31?fI?J# A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JU E JUD f?IT PAYS 1 FULL; SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ?l nitial OCT 2 4 2006 Date I certify that this is a true and correct copy of the record of the Date R. E. LWC. L.G. K:F. K.G. H.M. C.H. D. P. J.W. S.B. )( D.D. D P.J. A.F. D. Y. S.P. M. M. D.L. P.B. .kai terial i w , Magisterial District Judge My commission expires first Monday of January, 2008 SEAL AOPC 315-06 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-1-01 MDJ Name: Hon. CHARLES A. CLEMENT, JR. Address: 400 BRIDGE ST OLDS TOWNE COMMONS -SU NEW CUMBERLAND, PA Telephone: (717 ) 774-5989 170 ' LIBERTY EXCAVATORS 4402 GETTYSBURG RD MR DON LARKIN CAMP HILL, PA 17011 NOTICE OF JUDGMENT/T111 CIVIL CASE PLAINTIFF: NAME and ADDRE(, rKANKINS, JEFFREY/BARBARA 1450 MAIN STREET LISBURN pCHANICSBURG, PA 17055 VS. DEFENDANT: NAME and ADDRESS r-GEMCRAFT HOMES INC, ET AL. 2205 COMMERCE ROAD APT/STE A JEFF RHODES FIELD SUPVR REST HILL, MD 21050 J INC p Z6 O Docket No.: CV-0000498-06 (?C Date Filed: 9/07/06 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF ® Judgment was entered for: (Name) (Date of Judgment) 10/24/06 HANKINS, JEFFREY/BARBARA ® Judgment was entered against: (Name) GEMCRAFT HOMES INC in the amount of $ 8.182.0 Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 8,000.00 Judgment Costs $ 182.00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 8,182.00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN TIDE, J' MAY I A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE tF TIM J DGM L SETTLES. OR OTHERWISE COMPLIFS wITH THF.mnrMFNT fi ?d MCC. I Z 4 ZUUU Date IZALM I certify that this is a true and correct copy of the record of the Date My commission expires first Monday of January, 2008 L.G. K.F. K.G. ' H.M. C.H. 7 l D.R J.W. 0D I S.B. D.D. F.i. A.F. D.Y. S. P. A. I'V1. €]. L. P. F2. C.S. Ile to ial Di rict J dge , Magisterial District Judge SEAL AOPC 315-06 DATE PRINTED: 10/25/06 12:59:00 PM • COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-1-01 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address: 400 BRIDGE ST OLDE TONNE COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: (717) 774-5989 17070 LIBERTY EXCAVATORS 4402 GETTYSBURG RD MR DON LARKIN CAMP HILL, PA 17011 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS f-1U KINS, JEFFREY/BARBARA 7 1450 MAIN STREET LISBURN PCHANICSBURG, PA 17055 J VS. DEFENDANT: NAME and ADDRESS rGEMCRAFT HOMES INC, ET AL. 2205 COM31ZRCE ROAD APT/STE A JEFF RHODES FIELD SUPVR LFOggST HILL, MD 21050 J INC Docket No.: CV-0000498-06 Date Filed: 9/07/06 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF (Date of Judgment) 10/24/06 T Judgment was entered for: (Name) HANKINS, JEFFREY/BARBARA Judgment was entered against: (Name) GEMCRAFT HOMES INC in the amount of $ 8.182.0 Defendants are jointly and severally liable. Damages will be assessed on Date & Time ? This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 8,000.00 Judgment Costs $ 182.00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 8,182.00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU r MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. OCT 2 4 2006 Date I certify that this is a true and correct copy of the record of the Date My commission expires first Monday of January, 2008 :--- , Magisterial District Ju ngs containing the judgment. , Magisterial District Judge SEAL AOPC 315-06 DATE PBTNrEn!! 1n/79; /ng 17.r%4.nn IPM ' COMMONWEALTH OF PENNSYLVANIA rrni ir\mv or:. CUMBERLAND Mag. Dist. No.: 09-1-01 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address: 400 BRIDGE ST OLDS TOWNE COMMONS -SUITE 3 NEW CMMZRLAND, PA Telephone: (717 ) 774-5989 17070 LIBERTY EXCAVATORS INC 4402 GETTYSBURG RD MR DON LARXIN CAMP HILL, PA 17011 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS raAN&INS, JEFFREY/BARBARA 1450 MAIN STREET LISBDRN LMECHANICSBDRG, PA 17055 J VS. DEFENDANT: NAME and ADDRESS rGEMCRAFT HONES INC, ET AL. 2205 COMMERCE ROAD APT/STE A JEFF RHODES FIELD SUPVR LFOREST HILL, MD 21050 J Docket No.: CV-0000498-06 Date Filed: 9/07/06 THIS IS TO NOTIFY YOU THAT: LIBERTY EXCAVATORS I, NC DISMISSED W/O PREJUDICE Date of Judgment) Judgment: ( Judgment was entered for: (Name) Judgment was entered against: (Name) in the amount of $ DEF 003 Defendants are jointly and severally liable. Damages will be assessed on Date & Time ® This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 F] Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ .00 Judgment Costs $ 00 Interest on Judgment $ . a Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. OCT 2 4 2006 Date I certify that this is a true and correct copy of the record of the Date , Magisterial District Judge containing the judgment. , Magisterial District Judge My commission expires first Monday of January, 2008 SEAL AOPC 315-06 w ..w? ww r?w??s? _ 1 A /.? r/ n om 9_ n A _ A A ++v 2 Lm , (nlv C ?a . 0' ? ti ?' G?1 P S u((Yl 3r, C, I,V\ c Ica,, up LL w I t O?iC cnlf? ?, S l? - ?- °tT gt -- /??tw?d, Wt l t?uJ ° ?;be f J Car?? Grn 64 I o+ C?a M C a c?;Z? G I'7a 5 s 07/07/2006 09:52 7177204213 OFFICE OF LEGAL COUN PAGE 02 LIBERTY, EXCAVATORS, INC. Site Develo 440 O neyd=g Road Camp Hill, PA 17011 717-761-8461 Fax: 717-731-4634 July 5, 2006 Jeffrey B. k Barb Hawkins 1450 Main Street Mechamosbwcg, PA 17055 Reference: Collapsed Barn Wall at yellow Breeches Farm IAU tq Project #205011 Dear Jeff & Barb: Thank you for meeting with us today. This letter serves to summarize our discussion as well as reduce our verbal agreement to writing. Liberty Excavators will enter your property for the purpose of removing the barn wall b shed debris, fence debris, and stumps in the immediate area of the collapsed wall as directed by you. We will dispose Of this material in accordance e? unte:ed the work will be performed this threvill Friday, Occur on ? wt eekdaysuitable 7, 2006. If weather delays are weather is present. We will also re-spread topsoil in the area damaged by the barn wall and perform minor grading modifications per your direction as far as they are permitted by Lower Allen Township and standard construction standards for drainage. In the course of this grading, a privacy berm will be constructed at the location previously occupied by the barn wall. The construction of the privacy berm will be completed upon completion of grading the building lots adjacent to your property. This grading will not disturb the lateral support of your adjoining land. Landscaping of the berm, planting of any trees or shrubbery, lawn restoration, and replacement of the shed and fence will be by other contractors secured by Gemeratt Homes or yourself. Upon satisfactory completion of the clean up and grading, you agree to release Liberty Excavators, Inc. from any personal claims for property damages related to the collapse of the barn wall. We are providing the above proposal in the spirit of helping a neighbor resolve an unfortunate situation created by others, and do not admit nor assume any responsibility for causing it. Please sign this letter below and fax it back to 717-731.4634 by noon on Thursday July 6, so that we may with the work it 7 a schedule specified above. pr 717A L .624M ZE-- , ?W-' F ?201ZI? S' ted Date Sign urimrinted Name Date Jeffrey B. Hawkins Barb Hawkins Sincerely, LIBERTY EXCAVATORS, INC. Don Larkins 07/07/2006 09:52 7177204213 OFFICE OF LEGAL COLIN PAGE 03 Project Menaces Copy: pile*206022 Jeff Rhodes, Gomm-aft Homes 'tom Scannell, Gemcraft Domes Aaron Wheeler, Gemcraft Homes 07/07/2006 09:52 7177204213 OFFICE OF LEGAL COLN ID' G tnl,?i ??n S l l?e_ ??PQs?.r/??C?raa?h? 0 # PAGE 01 06/27/2006 16:16 7177204213 OFFICE OF LEGAL COLN PAGE 81 ?Q se cc" wez? agcy ?vE?oP'i S. A,,,k5. r 06/27/2666 16:16 7177204213 JUN-21-2006 WED 08:46 All OPEBTiON8 DEPT OFFICE OF LEGAL COUJ PAGE 62 FAX NO, 717 M 0822 P, 02 LIBERTY 44M Gmyiburs UW ZXCA ATOR$l INC. Cnq RU, PA 17011 ? 717.761-?61 Pw: 717-731.404 P1 OWT: ?WBRF..?J FA" The udwixR4 ba*y pran% unto Liberty Dx cavatom Im the n* to mu upon that aataia p=lilW WAIS d #t -- - ?1IJ1C "A for the purpose of cNaii d4l -- ., Dab_ An4 tin Such rift lbaA extend frm *edge of the w meat to- ) ; j 70,OAL. Date: Witace?: J6 FF Sigctatlue: wxWS MUST F?( - CCU C1?? LIBERTY EXCAVATORS, Site Development Contractor 4402 Gettysburg Road Camp Hill, PA 17011 717-761-8461 Fax: 717-731-4634 May 1, 2007 VIA Hand Carry The Honorable Charles A. Clement, Jr. District Justice Office, District 09-1-01 Olde Towne Commons 400 Bridge Street, Suite 3 New Cumberland, PA 17070 Reference: Liberty Excavators, Inc. vs. Gemcraft Homes Forest Hill Dear District Justice Clement: Enclosed for filing, please find a Complaint in the above referenced matter, along with a check in the amount of $76.00, which represents the filing and service fees. Please have the Complaint served to the defendant via certified mail, restricted delivery. Also enclosed are copies of the letters that were sent to the defendant requesting resolution of this matter and a copy of the application for payment. To date, I have not received a satisfactory resolution of this outstanding issue. If you have any questions, please feel free to contact me. Thank you for your assistance. Sincerely, LIBERTY EXCAVATORS, INC. Lester L. Gouffer, 4Jr.4 Vice President LG/hm Enclosures COMMONWEALTH OF PENNSYLVANIA COUNTY OF: Cumberland 09-1-01 MDJ Name: Hon. Charles A. Clement Jr. Address: Old Towne Commons 400 Bridge Street, Suite 3 New Cumberland, PA 17070 Telephone: (717)774-5989 AMOUNT DATE PAID FILING COSTS $ 67.50 POSTAGE $ SERVICE COSTS $ 8.50 CONSTABLE ED. $ TOTAL $ 76.00 CIVIL COMPLAINT PLAINTIFF: NAME and ADDRESS F- Liberty Excavators, Inc. 4402 Gettysburg Road Camp Hill, PA 17011 1 1 VS. DEFENDANT: NAME and ADDRESS 1- Gemcraft Homes Forest Hill 2205 Commerce Road, Suite A Forest Hills, MD 21050 1 1 Docket No.: Date Filed: XWM Pa.R.C.P.D.J. No. 206 sets forth those costs recoverable by the prevailing party. TO THE DEFENDANT: The above named plaintiff(s) asks judgment against you for $ together with costs upon the following claim (Civil fines must include citation of the statute or ordinance violated): Defendant applied an unsubstantiated backcharge in the amount of $920.00 on Plaintiffs Application for Payment #4 for re-stake and stakeout performed by Defendant's subcontractor on 5/26/06. Plaintiff requested reimbursement for the backcharge on 3/9/07 but has not been paid. Defendant has breeched its contract with Plaintiff and Plaintiff seeks damages of $920.00, together with costs and other relief. 1, Lester L. Gouffer. Jr. verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S. § 4904) related to unsworn falsification to authorities. z nt) (S gna ure o PlainUff or At4h Plaintiff's Attorney: Address: 4402 Gettysburg Road Telephone: ( ) Camp Hill, PA 17011 IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, YOU SHOULD SO NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT MAY BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within magisterial district judge jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before the date set for the hearing. If you are disabled and require a reasonable accommodation to gain access to the Magisterial District Court and its services, please contact the Magisterial District Court at the above address or telephone number. We are unable to provide transportation. AOPC 30BA-05 LIBERTY EXCAVATORS, INC. April 17, 2007 VIA Fax (410) 803-7146 & Certified Mail Mr. Tom Scannell DLM, LLC 2005 Commerce Road, Suite A Forest Hills, MD 21050 Reference: Yellow Breeches Farm Lower Allen Township, Cumberland County . Liberty Job #20611 Dear Tom: Site Development Contractor 4402 Gettysburg Road Camp Hill, PA 17011 717-761-8461 Fax: 717-731-4634 The purpose of this letter is once again request payment of the $920.00 that was withheld from Pay Application #4 dated June 26, 2006 for restaking the basins. At no time during this process have we been provided with specific backup and explanation to substantiate this backcharge. Please be informed if payment is not received within ten (10) days or by April 27, 2007, Liberty Excavators Inc. will file a claim with the District Magistrate. Sincerely, LIBERTY EXCAVATORS, INC. -?O-? Karen L. Franklin Project Manager Copy: D. Larkin, D. Daubert, L. Gouffer, R. Evans - Liberty Excavators, Inc. Job File #20611 IMLIBERTY EXCAVATORS, INC. March 9, 2007 VIA Fax (410) 803-7146 & US Mail Mr. Tom Scannell DLM, LLC 2005 Commerce Road, Suite A Forest Hills, MD 21050 Reference: Yellow Breeches Farm Lower Allen Township, Cumberland County Liberty Job #20611 Dear Tom: Site Development Contractor 4402 Gettysburg Road Camp Hill, PA 17011 717-761-8461 Fax: 717-731-4634 This letter is in regards to the back charge for $920.00 that was assessed to our Application for Payment #4 dated 06/26106. The charge in question was for work performed on 05/26/06 described on Biscon's invoice as "restake Basin 1 contours; restake Basin 2 contours with grades and offsets; stakeout riser and outlet with grades and offsets". Liberty takes exception to this backcharge on the basis that not all of the 8 hours charged on this day were for "restake", and, as Biscon stated in the attached email this restake was the result of plan revisions. Please respond with a schedule for payment of this past due balance. Sincerely, LIBERTY EXCAVATORS, INC. Karen L. Franklin Project Manager Enclosure: Copy of E-Mail dated 02/22/07 from Greg L. Condon @ Biscon Land Surveying Copy: D. Larkin, D. Daubert, L. Gouffer, R. Evans - Liberty Excavators, Inc. Job File #20611 »b., . - b, Karen L. Franklin From: BISCONLS@aol.com Sent: Thursday, February 22, 2007 10:40 AM To: Karen L. Franklin Cc: BISCONLS@aol.com Subject: Fwd: Yellow Breeches Farm Re-Stake Back charge from Gemcraft Homes Attachments: Yellow Breeches Farm Re-Stake Back charge from Gemcraft Homes Karen - Be advised that some restaking was required due to plan revisions. Gregory L. Condon Biscon Land Surveying Co., Inc. 60 Maplewood Drive Etters, PA 17319 717/938-3591 AOL now offers free email to everyone. Find out more about whafs free from AOL at AOL.com. 3/2/2007 N 01 N ° o N C1 o ? N 0 o o d `? v 8 ? o4 H ? ? u o?'03 a, c z z C-) o v •d 'Y? 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H C 0 ? Z W Z c c AB O U .¢.¢ r %OCtonooom ( ) ¢ p, CO Op w 431 0, 01 01 V N 0 M T C"7 ti U H m m Z C = m U J 3 E z z > %R a L x 3 o? 3 ? m 0 0 o c 0 x d ? k, m O V m o ?o z Cc m U U ? O It] ? ?a as ? _m N L1 a. E O 0 U eo 6 t a y r t? m 0 o ? m m x E y 0 ? a a z c U a ? ra o > C7 c ? w v] 0 R V E 0 0 !2 a 2 3878 19,756 Gross Amount I • 76.00 0.00 76.00 3878 76.001 0.00 1 76.00 ? FORM # 032008 Liberty Excavators, Inc. 4402 Gettysburg Road Camp Hill, PA 17011 ***Seventy-six and xx / 900 Dollars*** PAY TO THE ORDER OF SOVEREIGN BANK READING, PENNSYLVANIA District Court 09.1.01 4,00 Bridge Street Ste 3 New Cumberland, PA 17070 60428912313 CHECK DATE CHECK NO. 4/30107 19756 $76.00 1. J 1 AUTHORIZED SIGNATURE %F. 11'1975611' >I:23L372690: 174L06277211' t/ f 07/07/2006 09:52 7177204213 OFFICE OF LEGAL COW PAGE 01 Jeff ???kh5 ?e. clmn,tjo! ?a?hq J ( 2) # 07/87/2006 89:52 7177284213 OFFICE OF LEGAL COW PAGE 82 ' i7 LIBERTY EXCAVATORS, INC. Site DevelopmeM Contractor 4402 Oeaysbwg Road Cant Hilt, PA 17011 717-761-8461 Fax: 717.7314634 July 5. 2000 Jebel B. & Barb Hawkins 1450 Main Street Mechanicsburg. PA 17066 Reference: Collapsed Barn Wall at Yellow Breeches Farm Liberty Project #206011 Dear Jeff dr Barb: Thsnk you for meeting with us today. This letter serves to summarize our discussion as well ae reduce our verbal agreement to writing. Liberty E:eavaters will enter your property for the purpose of removing the barn wall debris, abed debris, fence debris, and stumps in the immediate area of the collapsed wall as directed by you, We will dispose of this material in accordance with FADED requirements. Weather permitting, this will oocar oa Friday, July 7, 2006. If weather delays are encountered. the work will be performed on the first weekday suitable weather is prevent. We will also re4gmad topsoil in the area damaged by the barn wall and perform minor grading modifications par your direction a4 far as they are permitted by Lower Allen Township and standard construction standards for drainage. In the course of this grading, a privacy berm will be constructed at the location previously occupied by the barn wall. The construction of the privacy berm will be completed upon completion of grading the building lots adjacent to your property. This grading will not disturb the lateral support of your adjwning land. Landscaping of the berm, planting of any trees or shrubbery, lawn restorati094 and replacement of the shed and fence will be by other contractors secured by Oeme raft Homee or yourself. Upon saUefaatory completion of the clean up and grading, you agree to release Liberty Excavators, Inc. from any personal claims for property damages related to the collapse of the barn wall. We are providing the above proposal in the spirit of helping a neighbor resolve an unfortunate situation created by others, and do not adinit nor assume any responaibility for causing it. Please sign this letter below and fax it back to 717.781.4694 by noon on Thursday July 6, so that we may p with the work a schedule specified above. SOW NU? Date Sig d Name Date Jeffrey B. Hawkins Barb Hawkins Sincerely, LIIBHRTY EXCAVATORS, INC. Don Larkin 07/07/2006 09:52 7177204213 OFFICE OF LEGAL C[X N PAGE 03 project Mans W Copy: p OW22 Jeff Rhodos, Gemoraft Home. Tom Sewm 1, Ciemeraft Homes Asron Whsskz, Genic mft Homes LIBERTY EXCAVATORS, INC. Site Development Contractor 4402 Gettysburg Road Camp Hill, PA 17011 717-761-8461 Fax: 717-7314634 July 5, 2006 'Cv 0I '6J Jeffrey B. & Barb Hawkins pO 1 Gb 1450 Main Streets Mechanicsburg, PA 17055 o ? Reference: Collapsed Barn Wall at Yellow Breeches Farm Liberty Project #206011 Dear Jeff & Barb: Thank you for meeting with us today. This letter serves to summarize our discussion as well as reduce our verbal agreement to writing. Liberty Excavators will enter your property for the purpose of removing the barn wall debris, shed debris, fence debris, and stumps in the immediate area of the collapsed wall as directed by you. We will dispose of this material in.accordance with PADEP requirements. Weather permitting, this will occur on Friday, July 7, 2006. If weather delays are encountered, the work will be performed on the first weekday suitable weather is present. We will also re-spread topsoil in the area damaged by the barn wall and perform minor grading modifications at per your direction as far as they are permitted by Lower Allen Township and standard construction standards for drainage. In the course of this grading, a privacy berm will be constructed at the location previously occupied by the barn wall. This will be completed upon completion of grading the building lots adjacent to your property. Landscaping of the berm, planting of any trees or shrubbery, lawn restoration, and replacement of the shed and fence will be by others. In exchange, you agree to hold Liberty Excavators, Inc. harmless and indemnify us against any current or future claims relating to the barn wall and the subsequent damage caused by its collapse. We are providing the above proposal in the spirit of helping a neighbor resolve an unfortunate situation created by others, and do not admit nor assume any responsibility for causing it. Please sign this letter below and fax it back to 717-731-4634 by noon on Thursday July 6, so that we may proceed with the work within the schedule specified above. Signature/Printed Name Date Jeffrey B. Hawkins Signature/Printed Name Date Barb Hawkins Sincerely, LIBERTY EXCAVATORS, INC. Don Larkin Project Manager Copy: File#206022 Jeff Rhodes, Gemcraft Homes Tom Scannell, Gemcraft Homes Aaron Wheeler, Gemcraft Homes Page 1 of 1 Karen L. Franklin From: Hawkins, Jeff ahawkins@passhe.edu] Sent: Friday, July 07, 2006 8:58 AM To: Donald M. Larkin Cc: bahawkins@mac.com; tscannell@dlmllc.com; ,; awheeler@dlmllc.com Subject: RE: Barn Wall Meeting on 7-5-06 Attachments: Libery_CleanUp_Ltr.doc Mr. Larkin, Thanks for preparing the letter. Attached is an amended version for your consideration. The only substantive changes I made relate to the lateral support issue for the existing trees and the replacement of the "hold harmless and indemnification" requirements with alternative release language. Please let me know if you have any questions. I will fax a signed version of the letter to you after I hear back from you. Thanks again for your help. Jeff Hawkins From: Jibbyjoe Hawkins [mailto:bahawkins@mac.com] Sent: Thursday, July 06, 2006 8:27 PM To: Hawkins, Jeff Subject: Fwd: Barn Wall Meeting on 7-5-06 Importance: High Begin forwarded message: From: "Donald M. Larkin" <donlarkin cni libertyinc.net> Date: July 5, 2006 5:59:11 PM EDT To: bahawkins(&mac.com Cc: Tom Scannell <tcannell@dlmllc.com>, irhodes@gemcrafthomes.com, Aaron Wheeler <awheeler()dlmllc.com> Subject: Barn Wall Meeting on 7-"6 <<Barn Wall 7-5-06.doc>> The message is ready to be sent with the following file or link attachments: Barn Wall 7-5-06 Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled. 10/24/2006 LIBERTY EXCAVATORS, INC. Site Development Contractor 4402 Gettysburg Road Camp Hill, PA 17011 717-761-8461 Fax: 717-7314634 July 5, 2006 Jeffrey B. & Barb Hawkins 1450 Main Street Mechanicsburg, PA 17055 Reference: Collapsed Barn Wall at Yellow Breeches Farm Liberty Project #206011 Dear Jeff & Barb: Thank you for meeting with us today. This letter serves to summarize our discussion as well as reduce our verbal agreement to writing. Liberty Excavators will enter your property for the purpose of removing the barn wall debris, shed debris, fence debris, and stumps in the immediate area of the collapsed wall as directed by you. We will dispose of this material in accordance with PADEP requirements. Weather permitting, this will occur on Friday, July 7, 2006. If weather delays are encountered, the work will be performed on the first weekday suitable weather is present. We will also re-spread topsoil in the area damaged by the barn wall and perform minor grading modifications per your direction as far as they are permitted by Lower Allen Township and standard construction standards for drainage. In the course of this grading, a privacy berm will be constructed at the location previously occupied by the barn wall. The construction of the privacy berm will be completed upon completion of grading the building lots adjacent to your property. This grading will not disturb the lateral support of your adjoining land. Landscaping of the berm, planting of any trees or shrubbery, lawn restoration, and replacement of the shed and fence will be by other contractors secured by Gemcraft Homes or yourself. Upon satisfactory completion of the clean up and grading, you agree to release Liberty Excavators, Inc. from any personal claims for property damages related to the collapse of the barn wall. We are providing the above proposal in the spirit of helping a neighbor resolve an unfortunate situation created by others, and do not admit nor assume any responsibility for causing it. Please sign this letter below and fax it back to 717-731-4634 by noon on Thursday July 6, so that we may proceed with the work within the schedule specified above. Signature/Printed Name Date Jeffrey B. Hawkins Sincerely, LIBERTY EXCAVATORS, INC. Don Larkin Project Manager Copy: File#206022 Jeff Rhodes, Gemcraft Homes Tom Scannell, Gemcraft Homes Aaron Wheeler, Gemcraft Homes Signature/Printed Name Date Barb Hawkins Page 1 of Karen L. Franklin From: Donald M. Larkin Sent: Tuesday, July 18, 2006 3:31 PM To: 'Hawkins, Jeff Cc: 'Karen Franklin'; 'Larry Fink'; Jeff Rhodes (jrhodes@gemcrafthomes.com); 'Aaron Wheeler; lesgouffer@libertyinc.net Subject: RE: Outstanding Issues Related to the Hawkins Property Jeff, Your letter is consistent with Liberty's intents regarding this issue. Regarding our conversation yesterday, it will be the beginning of next week before we start grading the lots adjacent to your back yard and removing the foundations that remain from the building demolition. I will call you when I have the exact day this is going to occur. Thanks, Don Larkin Estimator/Project Manager Liberty Excavators, Inc. 717-761-8461, ext 236 www.libertyinc.net From: Hawkins, Jeff [mailto:jhawkins@passhe.edu] Sent: Monday, July 17, 2006 5:36 PM To: jrhodes@gemcrafthomes.com; Donald M. Larkin Cc: awheeler@dlmllc.com Subject: Outstanding Issues Related to the Hawkins Property Jeff, Attached is a letter addressing the outstanding issues related to the clean up and restoration of my property. Please review and give me a call. Thanks for your prompt attention. Don, Please do not hesitate to respond if I mischaracterized any of the responsibilities that Liberty has assumed in helping to restore my property. Thanks. Take care, Jeff Jeffrey B. Hawkins 2986 North Second Street Harrisburg, PA 17110 717-720-4070(ph) 717-720-4213 (fax) jhawkinsCaD-passhe.edu 10/24/2006 Page 2 of 2 www.passhe.edu Please note that my email address has changed to ihawkins ,,passhe.edu. Please make this correction in your address book. Thank you. INFORMATION CONTAINED IN THIS EMAIL TRANSMISSION AND ANY ATTACHEMENTS MAY BE CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT, WORK PRODUCT, OR OTHER LEGAL PRIVILEGE. IT IS INTENDED FOR THE EXCLUSIVE USE OF THE RECEPIENT NAMED ABOVE. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE DO NOT READ, DISTRIBUTE OR REPRODUCE THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE NOTIFY THE SENDER BY EMAIL REPLY OR TELEPHONE AT (717) 720-4070. THANK YOU! 10/24/2006 LIBERTY EXCAVATORS, INC. Site Development Contractor 4402 Gettysburg Road Camp Hill, PA 17011 717-761-8461 Fax: 717-731-4634 FAX COVER SHEET TO: r FROM: L,, !- ET ?av?C;rS afk;n COMPANY: DATE: 6- zl-Ch FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER 72 0 - q2 /3 1-2 PHONE NUMBER: SENDER'S REFERENCE NUMBER RE: YOUR REFERENCE NUMBER: ?? lei se CAC 11 URGENT XFOR REVIEW Ix PLEASE COMMENT D PLEASE REPLY ? PLEASE RECYCLE NOTES/COMMENTS: LIBERTY hAUAVAJ UKJ, INC. PROJECT: The undersigned, hereby grants unto Liberty Excavators, Inc. the right to enter upon that certain premises located at for the purpose of Such right shall extend from the date of the agreement to Further, the undersigned agrees to release, indemnify, and hold harmless Liberty Excavators, Inc., its agent, servants, designees, and employees from any claims, damages, losses, or liabilities arising out of or resulting from said entry upon premises, and any activity associated herewith. Date: Site Development Contractor 4402 Gettysburg Road Camp Hill, PA 17011 717-761-8461 Fax: 717-731-4634 20 Signature: Witness: TRANSACTION REPORT P. 01 JUN-21-2006 WED 08;46 AM FOR; OPERATIONS DEPT 717 763 0922 DATE START RECEIVER TX TIME PAGES TYPE NOTE M# DP JUN-21 08;45 AM 97204213 45" 2 SEND OK 827 TOTAL 45S PAGES: 2 LIBERTY k,,EXCA'VATORS, INC. FAX COVER SHEET Site Development Contractor 4402 Gettysburg Road Camp 1:1111, PA 17011 717-761-8461 Fax: 717-731-4634 TO: /? ?e?-T RxV4c'-j FROM: i o r1 Lack?rl COMPANY: DATE: . 6-Z/- 0 6 FAX NUMBMA TOTAL NO. OF PAGE! INCLUDING COVER: 720, q7-13 z PHONE NUMBER: SENDER'S REPERFsN-: E NGMBER: RE: YOLYR REFERENCE NQ,Mam, ple, lease, -to e.net ArbPes-?y . G URGENT XFOR REVIEW PLEASE COMMENT ? PL>?'A 3 REPLY ? PLEASE RECYCLE NOTES/COMMENTS: w . r CERTIFICATE OF SERVICE I, John W. Dornberger, Esquire, of Post & Schell, P.C., hereby certify that I am this day serving a true and correct copy of the foregoing Objections and Responses of Defendant Liberty Excavators, Inc. to the Request for Production of Documents of Defendant Gemcraft Homes, Inc. upon the persons and in the manner set forth below: Via First Class Mail David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 JoAnne E. Kinzel, Esquire Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Keith E. Peifer 34 West Beale Avenue Enola, PA 17025 The Barn Saver 1209 Reading Road Navron, PA 17555 POST & SCHELL, P.C. John W. ornberger, Esquire Dated: August, 2007 CZ O O T'I 72- rn ti ? : F Q', -OT P ? - (l t - (A) -y n ' 05/342017.v1 JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants V. THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, Additional Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Defendant Gemcraft Homes, Inc. c/o JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. Respectfully su mitted, Y, WARNER, DATE: '::? ?'o , / BY: DOT(AkD L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Cruxes Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Additional Defendant, B", Inc. 05/259908.v1 JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants CIVIL ACTION - LAW V. THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, JURY TRIAL DEMANDED Additional Defendants ANSWER WITH NEW MATTER OF ADDITIONAL DEFENDANT, BWB, INC., TO THE AMENDED COMPLAINT OF DEFENDANT, GEMCRAFT HOMES, INC., TO JOIN ADDITIONAL DEFENDANTS 1. Admitted in part; denied in part. It is admitted that Plaintiffs are who they say they are. All remaining allegations are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 2. Admitted in part; denied in part. It is admitted that Defendant Gemcraft Homes, Inc. is who it says it is. All remaining allegations are denied and strict proof thereof is demanded at the time of trial. 3. Denied. After reasonable investigation and inquiry, Answering Additional Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(c). By way of further answer, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 4. Admitted in part; denied in part. It is admitted only that Plaintiffs filed the Complaint against Defendant Gemcraft Homes, Inc. and Liberty Excavators, Inc., a copy of which is attached as Exhibit "A" to the Amended Complaint of Defendant Gemcraft Homes, Inc. to Join Additional Defendants' Complaint. By way of further response, Exhibit "A" is a written document which speaks for itself and any assertions counter to it are deemed denied and strict proof thereof is demanded at the time of trial. 5. Admitted in part; denied in part. It is admitted that Defendant Gemcraft filed an Answer to Plaintiffs' Complaint, a copy of which is attached as Exhibit "B". By way of further response, Plaintiffs' Complaint, Exhibit "A" and Defendant Gemcraft's Answer Exhibit "B" are written documents which speak for themselves and any assertions counter to them are deemed denied and strict proof thereof is demanded at the time of trial. 6. Denied. After reasonable investigation and inquiry, Answering Additional Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(c). By way of further answer, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 7. Denied. After reasonable investigation and inquiry, Answering Additional Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(c). By way of further answer, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 8. Denied. After reasonable investigation and inquiry, Answering Additional Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(c). By way of further answer, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 9. The averments set forth in this Paragraph are directed to a party other than Answering Additional Defendant and as such no response is required. To the extent a response is deemed required, the averments set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 10. Denied. After reasonable investigation and inquiry, Answering Additional Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(c). By way of further answer, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 11. Denied. After reasonable investigation and inquiry, Answering Additional Defendant is without sufficient information to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(c). By way of further answer, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 12. Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed required, the averments set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 13. Admitted. 14. Denied. The averments set forth in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). COUNTI GEMCRAFT v. KEITH E. PEIFER NEGLIGENCE 15. Answering Additional Defendant incorporates by reference its responses to Paragraphs 1 through 14 above as if set forth at length herein. 16. The averments set forth in this Paragraph are directed to a party other than Answering Additional Defendant and as such no responsive pleading is required. To the extent a response is required, the same are denied in accordance with Pa.R.C.P. 1029(e). 17. The averments set forth in this Paragraph are directed to a party other than Answering Additional Defendant and as such no responsive pleading is required. To the extent a response is required, the same are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Additional Defendant BWB, Inc. respectfully requests judgment in its favor and against Defendant Gemcraft Homes, Inc. together with such other relief as this Court deems just and appropriate. COUNT II GEMCRAFT v. THE BARN SAVER NEGLIGENCE 18. Answering Additional Defendant incorporates by reference its responses to Paragraphs 1 through 17 above as if set forth at length herein. 19. The averments set forth in this Paragraph are directed to a party other than Answering Additional Defendant and as such no responsive pleading is required. To the extent a response is required, the same are denied in accordance with Pa.R.C.P. 1029(e). 20. The averments set forth in this Paragraph are directed to a party other than Answering Additional Defendant and as such no responsive pleading is required. To the extent a response is required, the same are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Additional Defendant BWB, Inc. respectfully requests judgment in its favor and against Defendant Gemcraft Homes, Inc. together with such other relief as this Court deems just and appropriate. COUNT III GEMCRAFT v. BWB. Inc. NEGLIGENCE 21. Answering Additional Defendant incorporates by reference its responses to Paragraphs 1 through 20 above as if set forth at length herein. 22. (a) - (d) Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 23. Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. WHEREFORE, Additional Defendant BWB, Inc. respectfully requests judgment in its favor and against Defendant Gemcraft Homes, Inc. together with such other relief as this Court deems just and appropriate. COUNT IV GEMCRAFT v. BWB, INC. BREACH OF CONTRACT 24. Answering Additional Defendant incorporates by reference its responses to Paragraphs 1 through 23 above as if set forth at length herein. 25. Admitted in part; denied in part. It is admitted only that BWB had a written contract with Defendant Liberty Excavators. Exhibit "C", a copy of the purported contract, is a written document which speaks for itself and any assertion counter to the written document is denied and strict proof thereof is demanded at the time of trial. 26. Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 27. (a) - (d) Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. 28. Denied. The averments set forth in this Paragraph constitute conclusions of law to which no responsive pleading is required and, as such, said averments are denied in accordance with Pa.R.C.P. 1029(e) and strict proof thereof is demanded at the time of trial. WHEREFORE, Additional Defendant BWB, Inc. respectfully requests judgment in its favor and against Defendant Gemcraft Homes, Inc. together with such other relief as this Court deems just and appropriate. NEW MATTER DIRECTED TO DEFENDANT GEMCRAFT HOMES. INC. 29. Defendant has failed to state a cause of action against Answering Additional Defendant upon which relief can be granted. 30. No act or omission on the part of Answering Additional Defendant was a substantial or contributing factor in bringing about Plaintiffs' and/or Defendant Gemcraft Home, Inc.'s injuries and/or damages, all such injuries and/or damages being expressly denied. 31. Any and all injuries or damages as described by Defendant Gemcraft Homes in their Amended Complaint, the same being expressly denied, were caused, in whole or in part, by the acts or omissions on the part of Defendant Gemcraft Homes and/or others over whom Answering Additional Defendant had no control, nor right of control. 32. Answering Additional Defendant breached no duty of care owed to Defendant Gemcraft Homes under the circumstances. 33. At all times material hereto, Answering Additional Defendant acted in a safe, legal and non-negligent manner. 34. Defendant Gemcraft Homes' claims are barred by the defenses listed in Pa.R.C.P. 1030 as discovery may prove out. WHEREFORE, Additional Defendant BWB, Inc. respectfully requests judgment in its favor and against Defendant Gemcraft Homes, Inc. together with such other relief as this Court deems just and appropriate. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN-& GOGGIN DATE: BY: DON L. C XRMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Additional Defendant, BWB, Inc. VERIFICATION Donald L. Carmelite, Esquire, Attorney for Additional Defendant, BWB, Inc.. verifies that the facts set forth in the Answer with New Matter to the Amended Complaint of Defendant, Gemcraft Homes, Inc. to Join Additional Defendants are true to the best of his knowledge, information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. L. CARMELITE, ESQUIRE DATE: /?? O/-?t JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants V. CIVIL ACTION - LAW BWB, INC., JURY TRIAL DEMANDED Additional Defendant CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this oZ?? day of August 2007, served a copy of the foregoing document via First Class United States mail, postage prepaid, unless otherwise specified, as follows: David A. Fitzsimons, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Attorney for Plaintiffs John W. Dornberger, Esquire Post & Schell, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 Attorney for Liberty Excavators, Inc. JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 Attorney for Gemcraft Homes, Inc. The Barn Saver 1209 Reading Road Narvon, PA 17555 Keith E. Peifer 34 West Beale Avenue Enola, PA 17025 ?? Qau Joann . Parr r-a f l r '. __.{ ._... .. - .. . .? _ -? ?Y`S .. ? < , . l' __ ? • r__ _ y F`J 4 ,;,? yt - - f? ?:a .._.- =-{ ?Fl s -c 06HB-00139 11 1 ,-4= LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, ase No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Y TRIAL DEMANDED Defendants VS. The Barn Saver, BWB, Inc. and Keith E. Peifer, Additional Defendants Y OF IJEFENDANT, INC.'S NEW N . i !ii i , TO 29. - 34. Paragraphs 29 through 34 of BWB's New Matter are conclusions of law with no allegations of fact. Therefore, no response is required of Original Defendant. WHEREFORE, the New Matter of Defendant, BWB, Inc. should be dismissed with costs in Defendant, Gemcraft Homes, Inc.'s behalf sustained. Respectfully submitted, LAW OFFICE OF SNYDER & DORER By: 3oAnn E. e , uire Identification No. 55453 Attorney for Defendant Date: August 23, 2007 06HB-00139 III I , ' w LAW OFFICE OF SNYDER& DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, r ase No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homo,s, Inc,,;gmd:Liber YiExcavators; Inca; JURY TRIAL DEMANDED Defendants VS. The Barn Saver, BWB, Inc. and Keith E.:Peifer, Additional Defendants 414. 6 JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Reply of Defendant Gemcraft Homes Inc. to Defendant BWB Inc 's New Matter to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto Goggin 10 East High Street Carlisle, PA 17013 John W. Dornberger, Esquire Post & Schell 17 North 2nd Street, 120' Floor Harrisburg, PA 17101 Bruce D. Foreman, Esquire Foreman & Foreman, P.C. 112 Market Street, 6"' Floor Harrisburg, P A 17101 Date: August 23, 2007 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 The Barn Saver 1209 Reading Road Navron, PA 17555 JoAnne E. el,'tsqui Attorney fo efendant, Gemcraft Homes, Inc. It? C ra o t s zi; C: C5 o 1 JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants CIVIL ACTION - LAW V. THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, JURY TRIAL DEMANDED Additional Defendants PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification of Greg Sholly in the above-referenced matter for that of the undersigned to be attached to Defendant, BWB, Inc.'s, discovery responses filed in this matter. Respectfully submitted, DENNEHEY, WARNER, GOGGIN DATE: 4 DOkALD LCLAtWEIITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Additional Defendant, B", Inc. W, JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants CIVIL ACTION - LAW V. THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, JURY TRIAL DEMANDED Additional Defendants CERTIFICATE OF SERVICE I, Diane E. Black, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 1 1 day of October, 2007, I served a copy of the foregoing document via First Class United States mail, postage prepaid, as follows: David A. Fitzsimons, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 JoAnne E. Kinzel, Esquire Law Office of Snyder & Dorer 214 Senate Avenue, Suite 503 Camp Hill, PA 17011 John W. Domberger, Esquire Post & Schell, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101 Diane E. Black 05/353575.v1 r VERIFICATION I hereby affirm that the following facts are correct: BWB, Inc. is a Defendant in the foregoing action and I am authorized to execute this Verification on their behalf. The attached Discovery Responses are based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Discovery Responses is that of counsel and not of me. I have read the Discovery Responses and to the extent that the responses are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the responses are that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid responses are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: BY: \05_.A\LIAB\DLCARMELITE\LLPG\259910UMPARR\ 18158\00138 C r' F /C.' Cr," . .... ni "?7 (.0 CD i o'S -c 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants ?URY TRIAL DEMANDED Vs. The Barn Saver, BWB, Inc. and Keith E. Peifer, Additional Defendants REPLY OF DEFENDANT, GEMCRAFT HOMES, INC. TO DEFENDANT, I KEITH K. PEIFER'S NEW MATTER 28.-32. The allegations in paragraphs 28 through 32 of Defendant Peifer's New Matter are conclusions of law to which no response is required. Said paragraphs contain no allegations of fact. To the extent that a response is deemed necessary, said allegations are specifically and generally denied. 33. The allegations in paragraph 33 of the Complaint are specifically denied. On the contrary, Gemcraft did not "accept" the allegedly dangerous condition created by Defendant Peifer when he allowed Barn Saver to come in and destabilize the exiting barn on the property removing all but three walls, while simultaneously failing to support or stabilize the remaining wall. 34. The allegations in paragraph 34 of Peifer's New Matter are specifically denied. On the contrary, Gemcraft retained Liberty Excavating, who in turn retained BWB to remove thej wall in question. 35. The allegation in paragraph 35 of Peifer's New Matter is a conclusion of law to which no response is required. To the extent that a response is deemed necessary, said is specifically denied. On the contrary, Defendant Peifer had a duty to refrain from creating a condition upon his land which would create a danger to abutting property. Defendant Peifer failed to comply with said duty. 36. The allegation in paragraph 36 of Peifer's New Matter is a conclusion of law to which no response is required. To the extent that a response is required, said allegation is specifically denied. 37. The allegation in paragraph 37 of Peifer's New Matter is specifically and generally denied. On the contrary, Peifer actually created the dangerous condition or allowed it to be created, and failed to take steps to make safe the dangerous condition he had created or allowed to be created. 38. The allegation in paragraph 38 of Peifer's New Matter is a conclusion of law to which no response is required. 39. The allegations in paragraph 39 are specifically denied. On the contrary, Peifer, who created or allowed the dangerous condition to be created, certainly had the ability to control it. 40.41. The allegations in paragraphs 40 and 41 of Peifer's New Matter are conclusions of law to which no response is required. WHEREFORE, the New Matter of Defendant Peifer should be dismissed with costs in Gemcraft Homes, Inc. behalf sustained. Respectfully submitted, LAW OFFICE OF SNYDER & DORER _ By: J i No. 55453 Defendant, Gemcraft Homes, Inc. Date: _January 282008 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants vs. The Barn Saver, BWB, Inc. and Keith E. Peifer, Additional Defendants Y TRIAL DEMANDED JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Ret of Defendant Gemcraft Homes Inc. to Defendant Keith K. Peifer's New Matter to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto Goggin 10 East High Street Carlisle, PA 17013 John W. Domberger, Esquire Post & Schell 17 North 2nd Street, 12th Floor Harrisburg, PA 17101 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Bruce D. Foreman, Esquire Foreman & Foreman, P.C. 112 Market Street, 6"' Floor Harrisburg, P A 17101 Date: January 28, 2008 The Barn Saver 1209 Reading Road Navron, PA 17555 zel,Esquire JoAnne E. Ktefendant, Attorney for Gemcraft Homes, Inc. ?° ? a a i ;?'? ? . ?- t?:- ?-? -v Z tv ? 06HB-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 . TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, (Case No.: 06-6422 Civil Term Plaintiffs VS. Gemcraft Homes, Inc. and Liberty Excavators, Inc., URY TRIAL DEMANDED Defendants vs. The Barn Saver, BWB, Inc. and Keith E. Peifer, Additional Defendants IMPORTANT NOTICE TO: Additional Defendant, The Barn Saver DATE OF NOTICE: February 5, 2008 You are in default because you have failed to take action required of you in this case. Unless act within ten (10) days from the date of this notice, a judgment may be entered against you withni a hearing, and you may lose your property or other important rights. 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 Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1 (800) 990-9108 Respectfully submitted, LAW OFFICE OF SNYDER & DORER By: JoAnne E inzel, squire Identifica 'on No. 55453 Attorney for Defendant, Gemcraft Homes, Inc. Date: February 5, 2008 06HR-00139 LAW OFFICE OF SNYDER & DORER 214 SENATE AVENUE, SUITE 503 CAMP HILL, PA 17011 TELEPHONE NUMBER: (717) 731-0988 ATTORNEY FOR DEFENDANT, GEMCRAFT HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Jeffrey & Barbara Hawkins, Case No.: 06-6422 Civil Term Plaintiffs vs. Gemcraft Homes, Inc. and Liberty Excavators, Inc., Defendants vs. Y TRIAL DEMANDED The Barn Saver, BWB, Inc. and Keith E. Peifer, Additional Defendants JoAnne E. Kinzel, Esquire, hereby certifies that she is the attorney for the Defendant, Gemcraft Homes, Inc., herein, and that she caused a true and correct copy of the attached Important Notice to be served by regular first class mail upon: David Fitzsimons, Esquire Martson, Deardorff, William & Otto Goggin 10 East High Street Carlisle, PA 17013 Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 John W. Domberger, Esquire Post & Schell 17 North 2nd Street, 12`h Floor Harrisburg, PA 17101 The Barn Saver 1209 Reading Road Navron, PA 17555 Bruce D. Foreman, Esquire Foreman & Foreman, P.C. 112 Market Street, 6`h Floor Harrisburg, P A 17101 Date: February 5, 2008 JoAnna1 -. kinzel, Esquire Attorn or Defendant, Gemcraft Homes, Inc. C?} y?r 1 'f7 C?"1 4 John D. HigWrhe Barn Saver 1209 Reading Road Narvon, PA 17555 Tel. 717-445.8246 Jeffrey & Barbara Hawkins Plaintiffs V. Gemcraft Homes, Inc. and Liberty Excavators, Inc. Defendants V. The Bam Saver and BWB, Inc. And Keith E. Peifer Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2006-06-6422 CIVIL LAW JURY TRIAL DEMANDED ANSWER OF THE BARN SAVER TO COMPLAINT TO JOIN ADDITIONAL DEFENDANTS AND NOW, comes Additional Defendant The Barn Saver, in response to Complaint to Join Additional Defendants as follows: 1. Admitted. 2. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 2 of Complaint. 3. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 3 of Complaint. 4. Admitted as seen in exhibit "A." 5. Admitted as seen in exhibit "B." 6. Admitted. 7. Admitted in part and denied in part; it is admitted that at some point the wall that The Barn Saver believes is referred to in paragraph 7 of Complaint was part of a vintage barn; the remaining averments of paragraph 7 are denied, and if relevant, strict proof thereof is demanded. 1 8. The Barn Saver is without knowledge or information sufficient to form a belief as to the truth of the allegations of the first averments of paragraph 8. Further it is denied that Mr. Peifer "hired" additional Defendant The Barn Saver. It is admitted that an agreement between Keith E. Peifer and The Barn Saver was made. Stated in the agreement, The Barn Saver was awarded all salvage rights and the agreement was to leave all salvage waste on the site. 9. Admitted. 10. Admitted. 11. Averments in Paragraph 11 of the Complaint are directed to another party, therefore no response is required of this Defendant. 12. Averments in Paragraph 12 of the Complaint are directed to another party, therefore no response is required of this Defendant. 13. Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments of paragraph 13 of Complaint. 14. Averments in Paragraph 14 of the Complaint are directed to another party, therefore no response is required of this Defendant. COUNT 1 GEMCRAFT vs. KEITH E. PEIFER NEGLIGENCE 15. Paragraph 15 of Count I does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. 2 To the extent that any response is required from The Barn Saver, the same are denied. 15. Paragraph 16 of Count I does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. 16. Paragraph 17 of Count I does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. COUNT H GEMCRAFT vs. THE BARN SAVER NEGLIGENCE 17. Paragraphs 1 through 17 above are incorporated herein by reference as though set forth at length. 19&20. Denied. The agreement with Keith E. Peifer was only to salvage all possible and worthwhile materials. The brick wall had no monetary value, therefore The Barn Saver instructed additional Defendant Keith E. Peifer and original Plaintiffs Jeff and Barbara Hawkins that the wall would be left standing due to the fact that no agreement was made between The Barn Saver, Keith E. Peifer, or the original Plaintiffs. 3 WHEREFORE, The Barn Saver respectfully requests that Count II against The Barn Saver be dismissed with costs taxed against Plaintiffs or Defendants. COUNT III GEMCRAFT vs. BWB. INC. NEGLIGENCE 21. Count III does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. 22. Count III does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. 23. Count III does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. COUNT IV GEMCRAFT vs. BWB. INC. BREACH OF CONTRACT 24. Count IV does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. 4 25. Count IV does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. 26. Count IV does not include The Barn Saver as an Additional Defendant and, accordingly, does not require a response from The Barn Saver. To the extent that any response is required from The Barn Saver, the same are denied. NEW MATTER 27. The Barn Saver believes and avers that any claims of injuries or damages suffered by Plaintiffs or property thereof were and continue to be the responsibility of Defendants Gemcraft Homes, Inc. and Liberty Excavators, Inc. due to said Defendants' failure to have the brick wall dismantled in a timely, reasonable, and safe period of time. 28. The Barn Saver believes and therefore avers that any injuries or damages suffered by Plaintiffs and/or the property thereof were the direct result of Plaintiffs' failure to take precautionary measures to protect the property of the Plantiffs from a perceived danger on the property solely owned and maintained by Plaintiffs Jeffrey and Barbara Hawkins. 29. Plaintiffs and Defendant Gemcraft Homes, Inc. voluntarily and without question accepted all conditions on the property of the Plantiffs. 30. Plaintiffs and Defendant Gemcraft Homes, Inc. were aware of conditions exiting on Plaintiffs property and took no action with regard thereto. 31. The Barn Saver had and has no duty to any party to this action. 5 32. The Barn Saver believes and avers that any claims, liabilities, and/or damages to the Plaintiffs or to Gemcraft Homes, Inc. are barred by the defense of estoppel. 33. Any harm or property damage suffered by the Plaintiffs or by Gemcraft Homes, Inc. was a consequence over which The Barn Saver had/has no control. WHEREFORE, The Barn Saver requests judgment entered on his behalf with all costs taxed against Plaintiffs or Defendants Gemcraft Homes, Inc. and Liberty Excavators, Inc. R 1 submi , T B By: John. . High 1249 eading Road Narvon, PA 17555 Tel. 717-572-1619 6 VERIFICATION I verify that the statements made in foregoing documents are true and correct to the best of my knowledge. I understand that false statements herin are made subject to ion to authorities. the penalties of 18 Pa. C.S. Section 4904, lat' to at Dated: C " 9' O Mr The Jarn Saver/John D. igh 7 CERTIFICATE OF SERVICE I, The Barn Saver/John D. High, do hereby certify that on this, the 190i day of February, 2008, I served a true and correct copy of the Complaint to Join Additional Defendants, by First Class U.S. Mail, postage prepaid, addressed as follows: JoAnne E. Kinzel, Esquire Snyder & Dorer Attorney for Defendant, GemCraft Homes, Inc. 214 Senate Avenue Suite 503 Camp Hill, PA 17011 Donald Carmelite, Esquire Marshall, Dennehey, Warner, Coleman and Goggin Attorney for Liberty Excavators, Inc. 4200 Crums Mills Road Suite B Harrisburg, PA 17112 Bruce D. Foreman, Esquire Attorney for Keith E. Peifer 112 Market Street, 6 h Floor Harrisburg, PA 17101 David Fitzsimons, Esquire Martson, De rdoa William & Otto Attorney for Jeffrey and Barbara Hawkins 10 East High Street Carlisle, PA 17013 John W. Dornberger, Esquire Post & Schell 17 North 2°d Street 120i Floor Harrisburg, PA 17101 C'? . ?'? -n ^ ?. ? ..? s>_ "'Wi'g -ry ?I'Y `T { '"?? Tt1= +r `^ ? , - ! S W ? 1 ? 1 ?...?dw .. ? 1 1 S . `:a .&"y ?' ? ?? V. JEFFREY AND BARBARA HAWKINS, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 06-6422 GEMCRAFT HOMES, INC., and LIBERTY EXCAVATORS, INC., Defendants THE BARN SAVER, BWB, INC. and KEITH E. PEIFER, Additional Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE & END CASE TO: PROTHONOTARY Cumberland County, Pennsylvania Kindly mark the above-referenced matter as SETTLED, DISCONTINUED and ENDED. Respectfully submitted, 'J David A. Fitzsimons, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Attorney for the Plaintiffs Dated: 05/388308.0 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: JoAnne E. Kinzel, Esquire SNYDER & DORER 214 Senate Avenue Suite 503 Camp Hill, PA 17011 John W. Dornberger, Esquire POST & SCHELL, P.C. 17 North Second Street, 12' Floor Harrisburg, PA 17101 Bruce D. Foreman, Esquire FOREMAN & FOREMAN 112 Market Street, Sixth Floor Harrisburg, PA 17101 MARTSON LAW OFFICES Dated: June 2008 Carlisle, PA 17013 (717) 243-3341 ? ?. i a <.` co Ct'1