HomeMy WebLinkAbout06-6548
vs.
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IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
SCOTT A. MARLOW,
Plaintiff
CIVIL ACTION - LAW
NO. t{;o - &"1 'I r (!t' L:i"f
TIMOTHY STRAUB and MARISA A.
STRAUB, his wife, CALVIN WILLIAMS,
III, and AMY W. WILLIAMS, his wife,
Defendants
Jury Trial Demanded
NOTICE
TO DEFENDANTS NAMED HEREIN:
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 RILING IN
WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET
FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE
MAY PROCEED WITHOUT YOU, AND A JUDGMENT MAY BE ENTERED AGAINST YOU
BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE
COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF.
YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO ~OU.
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
2 LIBERTY AVENUE
CARLISLE, PENNSYLVANIA 17013
TELEPHONE: (717) 249-3166
"
SCOTT A. MARLOW,
Plaintiff
vs.
)
)
)
)
)
)
)
)
)
)
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYL V AN1A
CIVIL ACTION - LAW
1-' --
NO. DI.c- (.SCfY eu;J I-Uv'-
TIMOTHY STRAUB and MARISA A.
STRAUB, his wife, CALVIN WILLIAMS,
III, and AMY W. WILLIAMS, his wife,
Defendants
Jury Trial Demanded
COMPLAINT
AND NOW comes the above-named Plaintiff, by his attorney, Samuel 1. Andes, and
makes the following Complaint in this matter:
1. The Plaintiff is Scott A. Marlow an adult individual who resides at 444 Bosler
Avenue in Lemoyne, Cumberland County, Pennsylvania.
2. The Defendants are Timothy Straub, Marisa A. Straub, Calvin Williams, III, and
Amy W. Williams, all adult individuals who reside, to the best of Plaintiffs knowledge, in
Cumberland County. Timothy Straub and Marisa A. Straub are married and Calvih
! Williams, III and Amy W. Williams are married. All of the Defendants conduct business
and can be served at 157 & 161 South 32nd Street in Camp Hill, Cumberland County,
Pennsylvania.
3. Defendants are, and have been at all times relevant to this action, engaged in the
business of purchasing, restoring, and selling real estate, particularly residential re~l estate.
4. In February of 2006, following discussions and negotiations with Defendpnts,
Plaintiff entered into an agreement of sale to purchase the property at 444 Bosler Avenue in
Lemoyne, Cumberland County, Pennsylvania. In doing so, Plaintiff relied upon
representations made to him by the Defendants, or their agents, regarding the physical
condition of the property, as set out in the "Seller's Property Disclosure Statement"~ a copy of
which is attached hereto and marked as EXHIBIT A.
5. Thereafter, pursuant to the agreement and in reliance upon the represen~ations
made to him by the Defendants and their agents, Plaintiff purchased the property from
1'1
"
Defendants for $120,000.00. A copy of the Deed evidencing that purchase is attached hereto
and marked as EXHIBIT B.
6. Shortly after taking possession of and occupying the property, Plaintiff
experienced severe difficulties and problems with it. Those problems included:
A. A gas line which was not properly installed or sealed and which
created an immediate and serious risk of injury or damage.
B. Extensive leakage of water through the roof, through the sides of the
building, and through the basement walls.
C. Extensive water damage throughout the house, particularly in the.
first floor and in the basement.
7. Defendants, all of whom acted through their representatives Timothy Str~ub and
Calvin Williams, III, misrepresented the condition of the building in their statemmits to
Plaintiff and in the Seller's Property disclosure Statement. Those misrepresentatiQns
included:
A. A failure to disclose the condition dangerous to human health and
habitation represented by the improperly installed or sealed gas line in the
basement of the house.
B. The statement in Paragraph 4 (b) of the Seller's Property Disclosu:r!e
Statement to the effect that there was no water leakage, accumulation, or
dampness in the basement or crawl space and the statement in Paragraph 4 (c)
to the extent that the Defendants knew of no repairs or other attempts to control
water or dampness in the basement or crawl space.
C. The statements in Paragraph 6 of the Seller's Property Disclosure:
Statement to the effect that leaks existed only on the second floor and had b~en
"professionally repaired."
D. The statements in Paragraph 16 (b) (2) to the effect that there waS no
past or present drainage or flooding problems which affect the property.
E. Efforts to conceal or cover up evidence of water damage to the
property.
Defendants knew, or had reason to know, that the statements they made in the Seller's
Property Disclosure Statement were not accurate or truthful when those statements. were
made as cited above.
8. Solely and directly as a result of the misconduct and misrepresentation of the
Defendants and his reliance upon those misrepresentations, Plaintiff has suffered serious
financial damage resulting from the extensive flooding of and leakage of water into the
residence which he purchased from the Defendant, and the resulting damage to the: property
and its contents and the resulting loss of its use by Plaintiff. These damages have caused
Plaintiff, to date, including the projected costs to correct the water leakage problem: and
repair the other damages and compensate him reasonably for his loss of use, exceed
$20,000.00.
COUNT I - MISREPRESENTATION
9. The averments set forth in all the foregoing paragraphs are incorporated herein by
reference.
10. Defendants misrepresented the condition of the property and, by doing so,
fraudulently induced Plaintiff, to his serious detriment, to purchase the subject property.
11. Defendants, by their conduct, have incurred Plaintiff in an amount substantially
in excess of $20,000.00.
WHEREFORE, Plaintiff demands judgment against Defendants for a sum in excess of
$20,000.00.
COUNT II - PUNITIVE DAMAGES
12. The averments set forth in all the foregoing paragraphs are incorporated herein
by reference.
13. Defendants' conduct in misrepresenting the condition of the property which
Plaintiff purchased was intentional, deliberate., outrageous, and intended to injure plaintiff
or taken without regard to the rights of Plaintiff.
14. As a result of the conduct of Defendants, Plaintiff is entitled to punitive damages
in an amount of at least $50,000.00.
WHEREFORE, Plaintiff demands judgment against the Defendants for punitive
damages in the amount of $50,000.00 or more.
p~
Sa~L. Andes
Attorney for Plaintiff
Supreme Court ID # 17225
525 North 12th Street
Lemoyne, Pa 17043
(717) 761-5361
"
I verify that the statements made in this document are true and correct. I understand
that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904
(unsworn falsification to authorities).
Date: /1 -:>- tJ0
SCOTT~
I'
EXHIB]T A
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SELLER'S PROPERlY DISCLOSURE STATEMENT SPD
Thi$ rmm recommCl1dcd iUld approved for, but IIOt rcmic\cd to lISe by, the membc:ra of the PeoosylYllDia Asaociatioo of REAL TORSe (P A.R).
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IS
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Property Address "'-1'1 I? D ~-r-e11. Ave '
1-1~,^?".,c I'A 17 oct!
Seller jt(..v, ~
The Real Estate Seller Discto III Law (68 P.S. 17301 et. seq.) requires thal . $dIet of a property mU!lt disclose to .. buyer all known
material defects about the property being sold that en: not readily observable. WhO. the Law requires certain dlldolu.... tbls disclosure
statemeDt ~vers commOD top," beyoDd tbe bask ,equlremeats of lbe ....w ID aD etTort to assist HUen I. comp~ witll disclosure
requiremeats and to assist buyers ia evaluating the property belog coDsidered. Sellen who wt.h to see or use tbe b..~ dilclOlure form
UD fiDd tile form 011 tile Web site of the Pennsylvania State Real Estate CommllsloD. .
This Statement m&closes Seller's lcnowledge of the condition of the property as of the date signed by SeI)er and II D~ a substitute for
any Inspections or warranties tbat Buyer may wisb to ubtaln. This Statt:ment is not a warranty of lInY 1Qnd by Sellei' or 8 warranty or
representation by any listing real estate broker, any selling reat estate broIc;cr, or their licen.$eeS. Buyer is cnCOl1l'lged t~ addn:ss COI'lcc:ms
about the conditions of the property thai may not be included in this Statement. This Statcmel"lt does not relieve Se1I~ of the obligation
to di$close a material defect that may not be addressed on this furm.
A Material Defect ;s a problem with a residential real property or any portion of it that would have a sig11ificant adv~ impact Oll the
value of the property or that involves an unreasonable risle to people on the property. The fact that a structural element, sy~ or subsystem
i$ at or beyond thc end of the nOI1l'lal utll!fullife of such a structural element, system or subsylltem is not by ;ltle1f a material defe:ct.
I. SELLER'S EXPERTISE Scller does not })Q!il!!CSS expertise in contracting, engineering, archit.ccture, environm~l A$8elll1ment or
other lIfCll$ related to the construction and condjtions of the propcny and its improYetOeDts, CltCq)t u follows: ~:
~~ ~ .....lu:~~~ a..~~~.:.."3. I~ ..$'"1""""\'"T2 rc..F- ~
2. OWNERSIDPJOCCUPANCY
M Is the property currently occupied? _ Yes ~o If "yc'S," by whom? _ Seller _ Other occupants (tenants)
If property is not occupied, when was it last occupied? vt-Ju----.J
(b) How long have you owned the property? " _lIVnI ~
(c) Are you aware of any pets having lived in the house or other structUT~ during your ownership? _ Yes (/1No
if "yet:,. describe; r . .
3. ROOF J V
(a) Date roof installed: ZOos:, flrk'n6\.. Documented? ~ Y ~ _ No _ Un1cnown
(b) Has the roof been replacea or repaired during your ownership?)!;;Yes _ No .
If "yes," WIS the existing rooting material removed'? ..)!?f es _ No _ Unknown .
(c) Has the roof ever leaked dwing ownership? )f. Yes _ No oJ'
(d) Are you aWl\fe of any problems with the roof, g\Ittel'S, flashing or downspouts? _ Yes ~ No .
Explain any "yes" aDswers iD tills sectiOD, indudill&. the location al!d meat of any problem(l) a.ad aoy repair or remediatioD eff'om:
11..- ~ IN--t. /lI}"., ,r WIf-:t: rl4.D~t:IAJ ,. :
4. BASEMENTS AND CRAWL SPACES (Complete only If app . Ie)
(a) Doe~ the property bave a sump pump? _ Yes _ No nbown .
H .'yes." has it ever run? _ Yes _ No ~nb1own Is it jn worldng order? _ Yes _ No _ Unkn~_
(b) Are )'OU aware of 8I'ly water leakage, accumulation. or dampncss within the basement or crawl space? _ Yes ~o
(c) Do you know of any repairs or other attempts to control any water or dampness problem in the basement or crawl spade? _ YClI ~o
Explain any "yes" aoswers ill this seedoD, IDeluding tbe locatiou aod extent of any problem(s) a.ad aDY repair or remediatiOD tft'ortl:
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S. TERMlTESlWOOp..bESTROYING INSECTS, DRYROT, PESTS
(a) Are YOll sware of any termitcslwood-destroying insects. dryrot, 01' pests affecting the property? _ Yes Jo No
(b) Ate you aware of any damage to the property caused by ~itesJwood-dcstroying insects, ~ot. or pe.qc;? _ Yes
(e) Is your property currently lUlder contract by a licensed peSt control company? _ y~ ~
(d) Are you aware of any termite/pest control reports or treatments for the property? _ Yes No
E~plalD aoy "ya" aDswers io thl& sectlOD, iDdudlng the name of a.ay servleeltreatmellt provi er, tf appUcable;
~~'No
6. STRUCTURAL ITEMS
(a.) Are you llWare of any past or present water leakage in the house OT other suuotUres'? )5:Ji C$ _ No .
(b) Are you aware of any past or pres~~~vement, shifting. deterioration. OT other problemll with walls. foundations, or ~er
structural components'? _ Yes .p..JNo . ~.
(c) Arc you aware ofany past or present problems with driveways, walkways, patios, or retaining walls on the property? ._ YCfJ +--NO
(d) Is your property constructed with an Exterior (J1sulating Finishing SYStem (EIFS), such as Dtyvit or synthetic stucco? .
_ Yell _ No ;A- Unknown Jf yes, date in$tal]ed, if known X .
(e) Are there any defects (including stains) in flooring or floor coverings? _ Ya; No _ Unknown
(f) Arc you iware of any tire, storm. water or ice damage to the propeny? _ Yes ~o
E:ltplalD any "yes" Bnswen in this sectiOD. locludl~ the Ioc:~tlon and ext~nt of any problem C.) aDd aDY repair or rem~ll.tloD etTortt~
Z-N ~~_ (.,~~ . ~~ /t4"p~-eo
59 Buyer IDidaJ.:~ Date 2-/ (-0 (,l) SPD Page lof5 Seller Initials . n.te /-?,....()t
!B Pen".ytvanla As&oclatioh of
REALTORS. COFYlUGHT PENNSYLVANJA ASSOClAnON OF JU:.AI.TORSGD2004
. ,...................................... 6104
S_blad ~ 1t..1 &cole c-'""'l' 157 S32ud Sholl, Camp Hill'" 17011 PIloao: 71161196.S3 lIox: 717&129654 lILZfs
5_ ..d AaaeI-. Produced wfI/l Ztp~orm"' by RE F_~ Ll.C 18025 FIfteen'" RoacI. Cllnlon TlIWIls.... MlcN!JIIl'l48D35. (800) ~5 "llICII~rm.com
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8. WATERSUPPLY
(a) What is the source of your drinking water'} lQPublic Water _ Well on Property _ Community WII1er
_ None ~ Other (explain):
(b) When was your water last tested? I/"""~,J Test results:
If your drinking water $Ource is not public, is the pumping system in working order? _ Yes _ No
If "no,. explain:
(c) Do you have a softener, filter, or other trea%ment system? _ Yes i!::: No
If you do not 0W1l the GYStem, explain:
(d) Have you ever had a problem with your water sll.BPly? _ Y C\l ~ No
(e) Has your well ever nul dry'? _ Yes _ No p. Not Applicable
(f) Is there a well on the property not used as the prim8J)' source of drinking water? _ Yes _ No
If yes, is the well cupped? _ Yes _ No
(g) Is the water system shared? .:..- Yes _ No
(h) Ne you aware of any leaks or other problems, past or present, relating to the water supply, pumping system, and relat~ items?
_ Yes _ No
E~plain any "yes" aaswers in this section, IDduding tbe locatioD Rod extent of auy problem(s) aDd .ray repair or rem~iadoll efforts:
9. SEWAGE SYSTEM
(a) What is the type of sewage system? ~blic Scwc:r _ Individual On-Lot Sewllgc Disposal System
_ Individual On.UIl Scwage Disposal System in Proximity to Well _ Community Sewage Disposal SyS1Cm
_ Ten--acrc Permit Exemption _ Holding Tank _ None _ None AvailableIPr:rmit Limitation in Effect
_ Other type of sewage system (CltPlain):
(b) If Individual On-lot sewage system, what type? _ Cclispool _ DnaWield _ Unknown
_ Other (specify);
(e) Arc there any septic tanks on the Property? _ Yes _ No _ Unlcnown
If "yes. " what type oftank(s)? _ Mmllstccl _ Canc::ntlconeretc _ Fiberglll.95 _ Unlcnown
_ Other (specify):
(d) When was the: on-site sewa,gc disposal system last serviced?
(c) ATe there any scwuge pwnps located on the property? _ Ya; _ No
If yes, rype(s) ofpump(s) Arc pump(s) in working ordet? _ Yes _No
Who is responsible for maintenBJIcc' of sewage: pump's?
(f) Is the sewage system shared'? _ Yes _ No
(g) Arc you aware of IlIIY past or present leaks, bac1cups, or other problems relating to the sewage system and related items?
_ Yes ):ENo
Explaio any "yes" aDlWers 10 thi, scc:doD, indudiag tile locatiClft aad extellt of any problem(s) aDd allY repair or relJledlatioa etJOr1ll:
10. PLUMBING SYSTEM
(a) Type of plumbing (check all that apply): _ Coppa _ Galvanized _ Lead _ PVC _ Polybutylcnc Pipe (PB) _ Mixed
~Unknown _ Other (explain): :
(b) ATe you aware of any problems w,i,..any of your plumbing fixtll1'eS (e.g., including but nOr limited \0: kitchen, laUndry, or bathroom
fixtUreS; wet ber$; etc)? _ VC$ ~ No
If "yes,. explain;
II. DOMESTIC WATER REA TING
(a) Type of water beating: _ Elcc:tric _ Natural Gas "'Fuel Oil _ Propane _ Solar _ Summer/Wintcr Hook.Up
Othc:;r (explain): VWKr;;;;.,.:::)
(b) Ase you aware of aJlY problems with any water heater or related equipment? _ Yes ~o
If"yC!i: explain:
12. AIR COrmmONlNG SYSTEM
(a) Type of air conditioning: _ Centr&! Air _ Wall Units _ Window Units ~one
Othc:r (explain);
Number of window uniU included in sale
(b) Age of Central Air Conditioning Systan;
(e) Lillt any areas of the house that are not air conditioned:
Location(s)
_ Un.lcnown Date last serviced, if known
_ YCIil A)'o
Seller Inldalll: Vol If
(d) Are you aware of any problems with any item in this section?
If "yes." ex.plain:
B_.....I"~Da.. ~.IH'b
naCe
J~ 1.-0'
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13. HEATINCSYSTEM
(8) Type(s) ofbeating fuel(s) (check all that apply): _ Electric puel Oil _ NaturBl Gas _ Propane _ Coal _ Wood
_ Other:
(b) T.Y{IC(s) of heating systCll1(S) (check all that apply); _ Forced Hot Air _ Hot Water _ Heat Pwnp _ Elecaic Baseboard
$Steam _ Wood Stove (How many? ) _ Coal StO'lle (How many? )
_ Other:
(e) Age of Heating System: Z!)O -; Un1cnown Date last saviced. lfknown
(d) Are there any fireplaces? _ Yes ~o If "yes," how many? Are they w~g? _ Yes _ No
(e) An: there any chimneys (from a fireplace, water heater or any other heating system)? _ Yes ~ No
If "yes," how many? When were they last cleaned? Un1cnown _
Are they working? _ Yes _ No If"no," explain:
(f) List atI'j areas of the hoUlle that arc not heated:
(g) Are you aware of any heating fuel Ulnks OD th!,pTopcrt)'? .)(lVes _ No
Location(s), including uaderground tanlc(s): ~_.:fIIJ(
If you da not own the tanks. explain:
Aze Y08 aware maay problems or repain Deeded regarding aDY itma iD thilledlea! _ Yea _ No
H "yes," aplalll:
14. ELECTIUCAL SYSTEM
(a> Type ofEIectrical System: _ Fuses & Cin:lIit Breaken How MlIDY Amps? _ UnknoWJI
(b) Me you aware of any kDob and tube wiring in the home? _ Yes ~ No
Are you aware ofu, problems Dr repain aeeded III th electrieal system! Yes _ No
H ",.," aplain: .11# ~ ,14- c-
IS. OTBE'R EQUII'MENT AND APPLIANCES
This I_a mut be ecNDpleb!d for each item tbt wm. .r may, be IIOld w1tIa the property. Tlae faet that aD .. II lIat.ed doeI
Bot meaD It .. blchlded In the Agreement of SaJe. TIlI'IDI or !be AgrcemCllt of Sale negotiated bdweea Bayet and SeDer wOl
determbac which Itemt, If "y. are Indaded In the pua:hMe of De Property.
Ca> _ Electric ~ Door Opcnc::r- Number ofTfllftlm'l~ lCeylC1111 Enuy _
(b) i? Smoke Detectom How many"? z.. Location(s)
(c) ....:...- Security Alann System _ Owned _ Leased (Lease Information
Cd) _ Lawn Sprinkla(s) How many? AUlomatie Timer _
Ce) _ Swimming Pool _ Hot Tub/Spa _ pooVSplt Heater _ PooVSpa Cover _ WhirlpoollTub
_ Pool/Spa Equipment and Accessories (list): .
(f) .)C. Refrigerator(s) ~ RangelOvcn ,JGMicrowave Oven _ Dishwasher _ Trash Compactor _ Garbage Disposal
_ Chest Freezer _ Washer _ Dryer _ Intercom .
(g) _ Ceiling fan(ll) How many? . Location(s)
(h) _ Awnings --Attie Fan(l.l) _ Satellile Dish _ Storage Shed _ DecJc(s) _ Electric Animal Fence
(i) _ Other: J
Are )'oa aware of any problems or repain Deeded rqardlDI 8111 itelD in this HCtioa? _ Ya ..Jo.. No
If "yet;" aplaln:
16. LAND (SOILS, DRAINAGE, PLOODING AND BOUNDAIU!S)
(a) LIUld/BoDs
1) Arc you aware of any fill or expllIl:iive soil 011 the propc:rty? _ Yes )f.. No .
2) Are you awat'C of any sliding, ~1ing, earth mov.ement, \lphcaval, wbfidence, or earth BtIIbility problems that hav~
OCCUlTed on or affect the property? _ Yes .K No .
3) Arc yOU aware: of ony ~sting , past or proposed mining. strip-mining, or any other excavations that might affect this
property? _ Yes ..,l: No .
Nots '0 BfI)1D'l The properly mQ)/ be .w..bjecl to mine subsidence damage. Maps of ths coulllies and mines wheC mine subsidence
damage may OCCll' and mille subsiderlf:e insurDllce are flIJ(ZiJah/~ through: DflpllltJI1ent of Environmental Protection; Mine Subsidence
I1l6Ut'8nce Fund, 25 Technology Drive, California Technology Park, Coal Center, PA 15423 (800) 922-1678 (within PennSylvania)
or (724) 769.1100 (outside PCI'\JlS)'lvania). .
4) Is the property, or a portion of it. preferentially 3.'lSCssed for tax purposes, or 5ubjcct to limited development rights7
_ Yes ~ No If "yes", check all that apply below:
_ Farmland.and Forat (,aad Assellmeat Act - 72 P.S.iS490.1 et seq. (Clean and Green Program)
_ Open Spaee Act - 16 P.S. 611941 et seq.
_ Agricultural Area Security Law - 3 P.S. ~901 et,eq. (Development Rights)
_ Other
Not' to Buyer: Pennsylvania has enacted the Right to Farm Act (3 P.S. f 951-957) in an effort to limit the IJI1'pU11IStGflUf UlIUUr
which agricultural operations may be subject to nuisance suirs or ordimmces. Bu)'ef'$ flI'e UICOurtJ.ged h1 invutfgeue wht:tJ.er till)'
agricultural OpertlliolU covered by the Act operate in rhe vicinity althe property.
Explain aDY "yes" aDSWers ia this section:
Datc~-ll~
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puyer laitials:
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(b) FloodlngIDralnge 'X .g
1) Is any part ofthi$ propertY located in II wetlands area 01' II FEMA flood 2One? _ Yes _ N~_ UnJcnown
2) Do you know of any past or present drainage or flooding problems affecting the property? _ Yes ~ No
ExplalllallY "yes" aa.wen ia this sccdoD.I..cludlDI dates aDd oUat of Doodbag:
(c) Boundaries
1) Do you know of any encroachments, bounclary I ine disputes, or easements affecting the property'! _ Yes }( No
Note to B"1'4": Most properties have edSements rwMing across the1rJ /Dr utility services wuJ ~thB1' rlllJSons. In many mse.s. the
llIJSemenlS do not restrict the ordinruy use 0/ the property. and Seller may lIot be readily aware 0/ them. Buyer may wish to
"fJ.etermine the f:%i.stellCe of easement,s and restrictions hy uamining the property and ordering fJJr Abstract 0/ 'flitle or s~,.chtng
the records in the OIJlce 0/ the Recorder 0/ Deeds for the cowzty btifore entering into QJI agreemellt ofsaJe..
2) Do you access the property fTom a privaIC Toad or lane? _ Y C8 _ No
If yes. do you have a recorded right of way or maintenance agn:cment? _ Yes _ No
3) Arc you aware of any shared or common areas (e.g., driveways, bridgc..'I, docks, walls, etc.) or maintenance agrccmenl.<?
_ Yes ..J.(}.Io
Explaila allY "yes" answers lu tbll section: .
17. HAZARDOUS SUBSTANCES AND ENVIRONMENTAL ISSUJ:$ .
(a) Are you aware of any undetground tanks (other than home heating fucl or septic t:mks disclosed above)? ~ Yes ~ No
(b) ATe you aware of any past or present h.'lZ3TdoUl: substances present on the property (structure or soil) guch as, but not lImited
to, asbestos or polychlorinated biphenyls (PCBs), etc? _ YQl ~ No ·
(c) Are yO\) aware of sewage sludge (other than eommercially lMi11able fcnilizc::r productsl ~ spread on the propc:rty, or bave you
received written notice of sewage sludge being spread on an adjacent property? _ Yes A No .
(d) Arc you aware of eny tests for mold, fungi, OT indoor aiT quality in the propeny? _ Yes ')(. No .
(e) Other then genc::ral household cleaning, have you taken any efforts to control orrcmcdiate mold or mold-like substances in th<:
t .
property? _ Yes 2 No
Note tlJ Brqer: IndiyUluals II'IQ)' ~ tlffeeled dijfSTf!fltly, or not at t1l~ by mold cOllt4minatio1J. 1/ mold contamilUUioll or .iruloor air quality
is Q C01lCU'l, bu)JtlTS Qre encouraged to engag2 the serviCI!.!i of Q qualified profusionaJ to do tuting. Infonna/iolA on this issue is
QvtJi/able from tM United Statu EnviroPl11leJ'lloJ. Protectioll Agency aM may be obtained by contacting lAQ INFO.. P. O. Box 17133.
WQshi"gu,n., D.C 200/3-7/33, J-80fJ..438-4318.
(f) Are you aware ofany dumping on the property'? _ Yetl ~ No
(8) Have you received written notice l'egllTding the prellence of an environmental hWlJ'd or biohazard on yom: prOpCl1y or any
adjacent property? _ Y C$ ~ No
(h) Arc you aware of any tests for radon gas thai; have been perfonned in any buildings on the property? _ Y C$ :::J.. NQ
If "yes," liSt date, type, and results of all tests below: . .
DATE 'NPE OF T5ST RESULTS (picocuries/li1.el' or workiag IC"e1s) NAME OF nS'I'U>JG S~VJCE
(i) Arc you llWlITC of any radon removal system on the propcrty? ~ Yes No
If "yes,. list date installed and type of lI)'&Ulm, and whc:tber it is in working order below:
DATE INSTALLED 'NPE OF SYSTEM PROVIDER
WORK!NO ORDER?
~ Yes _ No
~ Yes _No
(j) If propertY WM constructed, (IT if construction began, before 1978. you must disclo\ie any knowledge of lead-based paint on the
property. Ne Y(l~ aware of any lead-based paint or lead.based paint hazards on the property? _ Yes L No .
If "yes,. explain how you know of it, where it is, and the condition of those lead--based paint surfaces;
(k) If property WlLll constrUcted, or if construction began, before 1978, you must disclae;e any reports IX records of lead-based paint
or lead-based paint hazards on the property. Are you ~ of any reportS or records regarding lead-based paint or lead.bascd
paint hazards on the propertY? _ Yes y..... No .
If .yes," list 1111 available rcpolU and n:co'rcis:
(1) Are you aware of testing on the property for any other hazardous substances or environmental concerns? _ Yes"";' No
(m) Are you awar'? of any other bazardous sub$tanccs or enviromnentlll concerns that might impact upon the property?
_ Yes _~o
Explaiu any "yes" .newers iD tbis eeetioD:
242
Buyer Iulti.ls: ~
Seller Initials: C'tJ {;
· )...."t..o6
Date
Date d--(C-~
SPD Page 4 of 5
Prvduced WI1t1 Z1pFonn'" ~ lite I"ormsNet. U.C 18025 FIfteen MilO Road. Clinton TownsNp, Mlc;t>Jgan AB03S. (800) 383-9805 ~.z1C1orm.c:mJ
cu..z.Eit
06/06/2006 21:27 FAX 7176129654
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@006
STRAUB/ASSOC
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18. CONDOMINIUMS AND OTHER HOMEOWNER ASSOCIATIONS (Complete oaly If applicable)
Type: _ Condominium _ Cooperative _ Homeowner AssocilltiOll or Plll7\ncd Co1DJ1lunity
Other;
Noliu '8gtJrdlng Co/l4()m1nlums. CoDpU""Va, tuU/ PltJnnetl CDmm""i6a: A buyer of Q resale unit in a condomillium, ~()QpeTative,
or plaraned commllnity mwt receive a copy of the dedDratif)n (other tlum the piau and plallS). tile b~/aW3. tile rultJs or regulalJanlS.
and Q certificate of resale issued by the associatiofl in the condJ:mdnlum, Cf)Dperative, or plan,," COmMllnity. Buyers nul)'
be TespollSible fOT capital contributions, initiation fees or similor one-time fees i" addition to regular monthly l'IUJinrel'UJl'ICe fees.
The buyer will have the option of r:tUIceling the agreement with tM return of all deposit monies until lhe cerd/iulte lias been provided
to Ihe buyer and for jive days thereafter or until C<1nveyance, whicheve oCC/U"S fiTst.
19. MISCELLANEOUS
(a) Are you awar; of any historic preservation restriction or ordinan~ or archeolOgical designation associated with the prdperty'!
_ Yes -LNo
(b) Are )'0\1 awllR of any existing or threatened legal action affecting the property? _ Y c:s -X No .
(c) Are you aware of any violations of federal. suue. or local laws or regulations relating to this property? _ Yes -A.. NQ
(d) Me you aware of any public improvcmmt, condominium or homeowner association lIlISessmeats against the p~ that remain
unpaid or of any violations of zoning. housing, b\lildiJJi, safety or fire orclinances that remain uneorreetcd? _ Y cs L'No
(e) Are you aware of any judgment, encumbrance, lien (for example, ctHI1aker or equity loan), oy.p"duc paymc:ot on II ~pport obligation,
or other debt against this prOpcI1y that cannot be satisfied by the proceeds of this sale? _ Y cs L No :
(f) ke you aware of any r!l8SOl1. including II defect in title, that would prevent you from giving a warranty deed or conyeying title to the
property? _ Yes ANo v. .
(g) Are you aware of any insurance claims filed relating to the property? _ Yes ,I:::::... No .
(b) Arc you awarc of any material dcfc:cls to the property, dwelling. or fIXtures which arc not dis<:losed elsewhere on this f~rm?
_ Yes :::t.. No
^ material' defect is a problem with a rcsidential real property or any ponioD of it that would bave a significa9t adverse impact
on the value of the property or that involves an unreasonable risk to people on the property. The fact that a souctural element,
system or subsystem is at or beyond the end of nonnal useful life of such a stJ'uctunl element, gystem or sub~em is not by
itself a material defect. '
Explain aDY "yes" BDswen In this SectiOD:
272
273
274
Zl5
276
The uBdenigned Seller represents that tbe ioformatiOG set forth In this discloaure scatemeat Is a<<urate aDd complete to the best
of Seller's kuowledge. Seller llereby authorizes the ListlDg Broker to provide this informaduo to prospective buyeni of tbe property
lUId to other rea) estate liceasees. SELLER ALONE IS RESPONSIBLE FOR THE ACCURACY OF Tim ~RMA TlON
CONTAINED IN THIS STATEMENT. Seller ,ball cause Buyer to be DOFtt.ned i rithlll of lUIy informatioB s"ppl~ on thlG form
wb~eb Is reDder aceu, bY(lI eba . c c:oadldoa oftbe ',rope " D p,ledoa of this fOnJI.
W)'TNESS SELLER . DATE /~2-C1(.
277
278 WITNESS
(#'l#OIv
DATE.
279 WIl'NESS
SELLER
DATE:
280
281
282
283
284
EXECUTOR, ADMINISTRATOR, TRUSTEE SIGNATURE .BLOCK
According to the provillions of the Real Esc.t~ Seller Disclosur~ Law, the undersigned excc\JtOf, adminilltl'lltOr or trustee is noti required to fill
out a Seller's Property Disclosure StalcIIJt:nt. The executor, admiuistnltor or trustee:, must, bowc:vcr, di$elose any known JUt~aJ defect(s) of
the property.
DATE
285
286
287
288
289
RECEIPt AND ACKNOWLEDCEMENT BY BUYER
The uuderllped Buyer ackuowledges receipt of this Dllclosure Statemel1L Buyer admowledgel that this Statement is not a wunaty
IlRd thaI, ODless stated otherwise lu tbe sales contraet, Bayer i. p"l':bulDg thill property 10 Its preseat coDdltioD~ It Is Buyer's
respoDslblUty to satisfy hbn.elf or Ilenelf as to thc condition of the property. Buyer may nqaest that tbe property be Inspected, 8t
Buyer's I!~nd b~ ,qaauflecl professioaBb, to determine the coadltloD of ~c:tu~ ~ _co~POlleau. .
WlTNESS~ ~~ BUYER ~ DATE :~~1l"'01t
290
29] WITNESS
BUYER
DATE
292 WITNESS
BUYER
DATE
SPD Page 5 of'S
Produced with ZlpForm1ll by RE FormaNet. LLC 18025 F'dtoen Mde Road. Clinton Townslllll. Mlctllg.n 48035. (800) 383-9805 www.zlDform.com
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EXHIBIT B
~.S' ID5(.pS I)
ReBCPT F'~ ?:f[GLER
HECOFtDER 01-".- DEEDS
GU~3BERLAHD CGU'ITY-PA
ParcelID: 12-21-0265-228
2006 APR 3 APl1115
This Indenture, made the
tit
r/ day of MARCH, 2006
BETWEEN TIM-oTHY STRAUB andMARISA A. STRAUB, his wife, and CALVIN
WILLIAMS, III, and AMY W. WILLIAMS, his wife, GRANTORS,
AND
SCOTT A. MARLOW, a single person, GRANTEE,
Witnesseth, that the said Grantors for and in consideration of the sum of ONE HUNDRED
TWENTY THOUSAND: . > DOLLARS And 00/100 dollars
($120P 00.00) lawful money of the United States of America, unto them well and truly paid by
the said Grantees, at or before the sealing and delivery hereof, the receipt whereof is hereby
acknowledged, have granted, bargained and sold, released and confirmed, and by these presents
do grant, bargain and sell, release and confirm unto the said Grantees, as tenants by entirety
ALL THAT CERTAIN tract or Parcel ofland and premises, situate, lying and being in the
Borough of Lemoyne in the County of Cumberland, and Commonwealth of Pennsylvania, more
particularly bounded and described as follows, to wit:
BEGINNING the Western half of Lot No. 89, Section "C" , Riverton, Pennsylvania, in the Plan
of Lots known as Plan No.1, the said Plan being recorded in the Recorder's Office of
Cumberland County, Pennsylvania, at Carlisle, in Deed Book "J", Volume 4, Page 40. The said
lot fronting twenty (20) feet on the South side of Bosler Avenue and extending back the same
width along the Eastern line of Fifth Street one hundred fifty (150) feet to Apple Alley. Havip.g
thereon erected the Western half of a two story frame dwelling house, No. 444 Bosler Avenue,
with other necessary outbuildings.
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BEING the same premises which Alan J. Bailets and Lisa W. Bailets, husband and wife, by deed
dated August 26, 2005 and recorded August 29,2005, in Deed Book 270 at Page 3207, in the
Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, granted and
conveyed unto Timothy Straub and Calvin Williams, III, married individuals, the Grantors
herein. By virtue of Marisa A. Straub's marriage to Timothy Straub, said Marisa A. Straub does
hereby join in the conveyance, relinquishing any and all right, title and interest she may hav~ in
said premise. By virtue of Amy W. William's marriage to Calvin Williams, III, said Amy W.
Williams, does hereby join in the conveyance, relinquishing any and all right, title, and inteiest
she may have in said premise.
Together With all and singular the buildings and improvements, ways, streets, alleys,
driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and
appurtenances, whatsoever unto the hereby granted premises belonging, or in anywise
appertaining, and the reversions and remainders, rents, issues, and profits thereof; and all the
estate, right, title, interest, property, claim and demand whatsoever ofthem, the said grantor~, as
well as at law as in equity, of, in and to the same.
To Have and to hold the said lot or piece of ground described above, with the buildings and
improvements thereon erected, hereditaments and premises hereby granted, or mentioned and
intended so to be, with the appurtenances, unto the said Grantees, their heirs and assigns, to :and
for the only proper use and behoof of the said Grantees, their heirs and assigns, forever.
And the said Grantors, for themselves and their heirs, executors and administrators, do, by these
presents, covenant, grant and agree, to and with the said Grantees, their heirs and assigns, thiat
they, the said Grantors, and their heirs, all and singular the hereditaments and premises herein
described and granted, or mentioned and intended so to be, with the appurtenances, unto the said
Grantees, their heirs and assigns, against them, the said Grantors, and their heirs, will specia)ly
warrant and defend against the lawful claims of all persons claiming by, through or under the
said Grantors but not otherwise.
In Witness Whereof, the parties of the first part have hereunto set their hands and seals. .
Dated the day and year first above written.
'---
T
Sealed and Delivered
IN THE PRESENCE OF us:
I (=ertify'
{SEAL}
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50QK 273 PAGE4100
r-
Commonwealth of Pennsylvania
County of CUM()tRl-A1\J.b
On this b'th.. day of MARCH, 2006, before me, the undersigned Notary Public, personally aBpeared
-;'molhvSfr4Mrh Ct11vln W""'~1n.5;1rr lYIarisp" A.Shaub i Amv W. Wi/haPls ' :!mown
to me (dr satisfad6ri1y proven) to be1:llelj>ersons whose nam~ lire sUbscribed to the within instrument, and
acknowledged that they executed the same for the purposes therein contained.
IN WI1NESS WHEREOF, I hereunto set my hand and official seal.
NOTARIAL SEAL
MARGARET W BRYAN
Notary Public
Olfl.HlLIlCROUGH. CUMBEIMIIDCOUNIY
MvComnllUlon Expires Oc' !Q, 2009
C(l]OI5El< / 9~ 2001
The precise residence and the complete post office address of the above named Grantees is:
7LjJf 5(JIIe-v A-t/e/J(..4L- L-R(lA11"lL 17r,- f'7 0 ~ 3
BUOK 2'13 PAGE4101
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James L. Goldsmith, Esquire
Attorney I.D. No. 27115
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766 (fax)
SCOTT A. MARLOW
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
0It,~fD5"8
NO. -eO-0547
vs.
TIMOTHY STRAUB and MARISA A.
STRAUB, his wife, CALVIN WILLIAMS, III,
and AMY W. WILLIAMS, his wife,
Jury Trial Demanded
Defendants.
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the undersigned's appearance on behalf of the Defendants, Timothy
Straub, Marisa A. Straub, Calvin Williams, III and Amy Williams, with regard to the above-
captioned matter.
I hereby accept service on behalf of all of the Defendants of the Complaint that has
been filed in the above-reference matter.
Respectfully submitted,
am L. Goldsmit ,
rney I. D. # 271
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 232-7661
Attorney for Defendants
Date: 11- ~<f;.b~
By:
,/.. --
CERTIFICATE OF SERVICE
AND NOW, this .;?J'~ day of f- k , 2006, I hereby certify that I
have served a copy of the within document on the following by depositing a true and
correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid,
addressed to:
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
CALDWELL & KEARNS
~ '-} .
By: :/ aA//
SeCret ";1'
06698-001/10969
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Douglas K. Marsico, Esquire
Attorney J.D. No. 69804
James L. Goldsmith, Esquire
Attorney J.D. No. 27115
Caldwell & Kearns, P.c.
3631 North Front Street
Harrisburg, P A 17110
(717) 232-7661
(717) 232-2766 (fax)
Counsel for Defendants
SCOTT A. MARLOW,
Plaintiff
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
~5"B
NO. 06~
TIMOTHY STRAUB and
MARISA A. STRAUB, his wife,
CALVIN WILLIAMS, III, and
AMY W. WILLIAMS, his wife,
Defendants
CIVIL ACTION- LAW
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Scott A. Marlow, Plaintiff
c/o Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, P A 17043
YOU ARE HEREBY NOTIFIED, that the Answer with New Matter set forth herein
contain averments against you to which you are required to respond within twenty (20) days after
service thereof. Failure by you to do so may constitute an admission.
CALDWELL & KEARNS
Date: ;)./7 /D7
,
arsico, Esquire
for Defendants
.
Douglas K. Marsico, Esquire
Attorney I.D. No. 69804
James L. Goldsmith, Esquire
Attorney I.D. No. 27115
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PAl 711 0
(717) 232-7661
(717) 232-2766 (fax)
Counsel for Defendants
SCOTT A. MARLOW,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 06-6547
TIMOTHY STRAUB and
MARISA A. STRAUB, his wife,
CALVIN WILLIAMS, III, and
AMY W. WILLIAMS, his wife,
Defendants
CIVIL ACTION- LAW
JURY TRIAL DEMANDED
ANSWER TO COMPLAINT WITH NEW MATTER
1. Admitted.
2. Admitted in part. It is denied that all Defendants conduct business at the address
referenced in Plaintiffs Complaint. Rather, the address given is that of Straub & Associates
Real Estate Group, Inc., where Timothy Straub is employed as broker.
3. Admitted in part. It is admitted that in the instant action Defendants purchased
and sold real estate. Marisa Straub and Amy Williams did not actively participate in any sense
other than as nominal title holders.
4. Admitted in part, denied in part. It is admitted that in February 2006 the Plaintiff
entered into an Agreement of Sale to purchase the subject property. It is further admitted that the
2
Plaintiff was provided with a Seller's Property Disclosure Statement attached to the Complaint
as Exhibit A. Plaintiffs reliance upon representations made by the Defendants set out in the
Seller's Property Disclosure Statement is a legal conclusion which no answer is required and
therefore the same is denied.
5. Admitted in part, denied in part. It is admitted that Plaintiff purchased the
property from the Defendants for $120,000.00 as evidenced by Exhibit B to the Complaint. The
averment that the Plaintiff relied upon representations by the Defendants and their agents is a
legal conclusion to which no answer is required, therefore the same is denied.
6. Denied. After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to truthfulness of the averments of this paragraph and
the same are denied and strict proof thereof is demanded at trial. By way of further answer, after
settlement on said property, despite no legal obligation to do so, the Defendants hired contractors
to return to the subject property to address concerns raised by the Plaintiff. Specifically, repairs
were made at no cost to the Plaintiff to the roof, plumbing and gas line.
7. Denied. The averments in paragraph 7 are legal conclusions to which no answers
are required. To the extent an Answer is required, the averments in this paragraph are
specifically denied and strict proof thereof is demanded at trial. By way of further answer, the
Defendants properly disclosed all conditions as known to them in accordance with the law.
8. Denied. The averments in paragraph 8 are legal conclusions to which no answers
are required. By way of further answer, after reasonable investigation, Defendants are without
knowledge or information sufficient to form a belief as to the truthfulness of the averments of
this paragraph and the same are hereby denied and strict proof thereof is demanded at trial.
3
COUNT I - MISREPRESENTATION
9. No answer is required.
10. Denied. The allegations in paragraph 10 are legal conclusions to which no
answers are required.
11. Denied. The allegations in paragraph 11 are legal conclusions to which no
answers are required. To the extent an answer is required, after reasonable investigation,
Defendants are without knowledge or information sufficient to form a belief as to the
truthfulness of the averments of this paragraph and the same are hereby denied and strict proof
thereof is demanded at trial.
COUNT II - PUNITIVE DAMAGES
12. No answer is required.
13. Denied. The allegations in paragraph 13 are legal conclusions to which no
answers are required. By way of further Answer, "Punitive Damages" is not a cause of action
and therefore not a permissible Count in a Complaint.
14. Denied. The allegations in paragraph 14 are legal conclusions to which no
answers are required.
NEW MATTER
15. Answers to paragraphs 1-14 are incorporated herein by reference as if set forth in
full.
16. Plaintiffs cause of action is barred in whole or in part by the failure to state a
cause of action upon which relief may be granted.
4
17. Plaintiffs cause of action is barred by the express terms of the Agreement of Sale.
A true and correct copy of the Agreement of Sale is attached hereto and incorporated herein as
Exhibit "A".
18. Plaintiffs cause of action is barred in whole or in part by the integration clause in
the Agreement of Sale.
19. Plaintiff made affirmative statements in the Agreement of Sale that the
Agreement of Sale contained the entire agreement between the Plaintiff and Defendants and that
there were no other terms, obligations, covenants, representations, statements or conditions, oral
or otherwise, concerning the sale.
20. In the Agreement of Sale, the Plaintiff represented that he inspected the property
before the signing of the Agreement of Sale, or waived his right to do so.
21. The Plaintiff has failed to mediate this dispute as per paragraph 32 of the
Agreement of Sale.
22. The Plaintiff knowingly and intelligently waived the right to make the purchase
contingent upon the results of a property inspection.
23. In the Agreement of Sale, the Plaintiff represented that he agreed to purchase the
property in its present condition unless otherwise stated in the Agreement of Sale.
24. Plaintiff acknowledged in the Agreement of Sale that the Defendants did not
make an independent examination or inspection of the property.
25. Plaintiffs cause of action may be barred in whole or in part by his own
contributory negligence and/or the provisions of the Comparative Negligence Act.
26. Plaintiff s cause of action is barred by the Doctrine of Merger.
5
27. Plaintiffs cause of action may be barred in whole or in part by the parole
evidence rule.
28. After settlement, despite no legal obligation to do so, the Defendants hired
contractors to return to the subject property to address concerns raised by the Plaintiff.
Specifically, repairs were made at no cost to the Plaintiff to the roof, plumbing and gas line.
29. The Seller's Property Disclosure Statement specifically informed the Plaintiff that
the roof had leaked during the Defendants' ownership.
30. In the Seller's Property Disclosure Statement, the Plaintiff was advised that the
Defendants were aware of past or present water leakage in the house.
31. As per the Real Estate Seller Disclosure law, 68 Pa. C.S.A. 97301 et seq., the
Defendants are not liable for any errors, inaccuracies, or omissions of information in the Seller
Disclosure form since any alleged errors, inaccuracies, or omissions were based upon a
reasonable belief that the alleged material defects allegedly not disclosed have been repaired.
See, 68 Pa. C.S.A. 97309(a)(2).
32. The problems alleged In the Complaint were problems that occurred after
settlement in which Defendants have no legal duty to correct.
33. After settlement, the Plaintiff was informed that the water problems complained
about were caused by incorrectly installed siding on the property.
34. The Defendants did not install the siding on the property.
35. Prior to settlement, the Defendants had no knowledge that the siding was
incorrectly installed.
36. The Plaintiff waived his right to a pre-settlement walk through inspection. See
Exhibit "B" attached hereto and made a part hereof as if set forth in length.
6
37. Pursuant to the express terms of the pre-settlement walk through inspection
waiver, the Plaintiffs cause of action against the Defendants is barred by the express terms of
the Release contained therein.
38. Plaintiffs cause of action may be barred in whole or in part by the doctrine of
release.
39. Plaintiffs cause of action may be barred in whole or in part by waiver and/or
estoppel.
40. Plaintiffs cause of action may be barred in whole or in part by the applicable
statute of limitations.
41. Plaintiff s cause of action may be barred in whole or in part by the assumption of
a risk.
42. Plaintiffs cause of action may be barred in whole or in part by the doctrine of
accord and satisfaction.
43. Plaintiffs cause of action may be barred in whole or in part by the doctrine of
economic loss.
44. Plaintiffs ability to cover damages may be barred due to its failure to mitigate
damages.
45. The Plaintiffs' cause of action is barred by existing case law in Pennsylvania. See
Blumenstock v. Gibson, 811 A.2d. 1029 (Pa. Super. 2003); Youndt v. First Nat. Bank of Port
Alleg., 868 A.2d 539 (Pa. Super. 2005); Potter v. Herman, 762 A.2d. 1116 (Pa. Super. 2000);
Bortz v. Noon, 729 A.2d. 555 (Pa. 1999); See also Rock v. Voshell, 397 F.Supp. 616 (E.D. Pa.
2005).
7
46. If the Plaintiff sustained damages as alleged in his Complaint, which damages are
strictly denied, the damages were caused by the acts or omissions of entities or individuals over
which the Defendants had no control or legal duty to control.
47. Plaintiff s Complaint filed against Defendants is frivolous, filed in bad faith and
without evidentiary support, and unwarranted by existing law. Accordingly, Defendants
demands attorneys' fees pursuant to Pennsylvania Rules of Civil Procedure 1 023( c) and the
Dragonetti Statute, 42 P.S. 98351.
WHEREFORE, Defendants respectfully request that the Plaintiffs case be dismissed and
judgment be entered in their favor and against the Plaintiff for the Defendants' costs and
reasonable attorney fees, and any other such relief deemed appropriate by the court.
Respectfully submitted,
Date: ;r /7/0) 7
. Marsico, Esquire
ey I.D. No. 69804
ames L. Goldsmith, Esquire
Attorney I. D. # 27115
Caldwell & Kearns, P.c.
3631 North Front Street
Harrisburg, P A 17110-1533
(717) 232-7661
Attorney for Defendants
8
f,>(~) bit ,4
STANDARD AGREEMENT FOR THE SALE OF REAL ESTATE
TIlls fonn recommended and approved for, bUI nol res!ncted 10 use by. the members of the Pennsylvania Association of REAL TORS@(PAR)
A/S-R
SELLER'S BUSINESS LATIONSHIP WITH PA LICENSED BROKER
BROKER (Company) Sr;.-:J A VJ .S u CI A lIE 5 PHONE 0/;) - C;c;o /
ADDRESS /57 S ~ ND s,- -A--mp HILL FAX (;:,/;)- 9'h:5Y'
LlCENSEE(S)77fhOTJ+~ 5Tf2A-ifl~ Designated Agent? DYesD No
BROKER IS THE AGENT FOR ELLER. OR (if checked below):
Broker is NOT the Agenl for SeUer and is alan: 0 AGENT FOR BUYER 0 TRANSACTION LICENSEE
BUYER'S BUSINESS RELATIONSIDP WITH PA LICENSED BROKER
BROKER (Company) S~~v.- 14--~5::) CI A ~5 PHONE 01;J- 9'C/O/
ADDRESS /. 7 s,. r->. s..,.. . HIL<- FAX (~?I ~ ~ 9'c,::>-~
LlCENSEE(S) I I CIA- l./ <IE:- Designated Agent? 0 Yes 0 No
BROKER IS THE AGENT FOR BUYER. OR (if checked below):
Broker Is NOT the Agent for Buyer and Is alan: 0 AGENT FOR SELLER 0 SUBAGENT FOR SELLER 0 TRANSACTION LICENSEE
When the same Broker is Agent for SeUer and Agent for Buyer, Broker 15 a Dual Agent. All of Broker's licensees are also Dual Agents UNLESS lhere are
separate Designated Agents for Buyer and Seller, If the same Licensee Is designated for Seller and Buyer, the Licensee is 8 Dual Agent.
BUYER(S):
;)- / /--- (}o00
, is between
I. This Agreement, dated
SELLER(S):
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:Scarl
,called "Seller." and
La L.. )
,called "Buyer."
PROPERTY (9-05) SeUer hereby agrees to sell and convey to Buyer, who hereby agrees to purchase:
ALL THAT CERTAIN lot or piece of ground with buUdings and improvements thereon erected, if any, known as:
c.r ~ q /3:) SLEU2. Ave:.
in the 7 XJ/<U of L..Ern D~,..".E- ,
in the Commonwealth of Pennsylvania. IdeniITcatlon (e.g., Tax ID #; Parcel #;
County of C l.-J /V1lr~p./2../4JJ()
Lot, Block; Deed Book, Page, Recording Date):
TERMS (9-05) .st; . C) . /'
(A) Purchase Price..:[.-9 ~ 1 00 ( PVr::...
.A ./1 Ai c::: Hi..) I,,) ~ 12 0"0
which will be paid to SeUer by Buyer as follows:
I. Casb or cbeck at signing this Agreement:
2. Cash or check within _ days of the execution of this Agreement:
3.
4. Cash or cashier's check at time of settlement:
HLJ ::~Le{) -,--W~
AJ I ~E..
--nIOU j!.1,v D
U.S. Dollars,
(B)
\
(G) Payment of transfer taxes will be\\vided equally between Buyer and Seller unless otherwise slated bere'
(H) At time of settlement. tbe follow g will be adjusted pro-rnla on a daily basis between Buyer and Seller, reimbursing where applicable: CUT-
rent taxe:<! (see lnIormation Regard~ Real Estate Taxes); rents; interests o~. mortgage assumptions; eo~dominium fees and homeowner asso- .
dation fees; water and/or sewer fees, \together WIth any other !tenable muniCipal service. All charges Will be pro-rated for the penod(s) c~,y,..
eree!. Seller will pay up to and includihg the date of settlement and Buyer will pay for all days following settlement, unless otheri~~/st3ted
here: -i-L
41 Buyer Initials: ,(' SeUer Initia!s:/:''Jr-- c..V'/
....."... "....,/ \.
COPYRIGHT PENNSYLVANIA ASSOCIA TION'OFREAL TORS(!) 2005
9105
IH penns' anla Association of
REALTORS<<>
REAlJOR" TlM Vole. to, a.., [.t...e'" 'O""lylva"".
~
PboDe.7176129653 Fax. 7176129654
Mile Road, Clinton Township, Michigan 48035 www.zloform.com
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Straub ODd Associal"" Real E..tatc Group 157 S 320d St=:l, Camp HiD PA 170
Straub ODd A.uociatel Produced with Zip
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FIXTURES & PERSONAL PROPERTY (9"'()5)
(A) INCLUDED in this sa]~ are all ex.i~ing items permanently installed in the Property, free of liens, including plumbing; heating; lighting fu-
tures (mcludmg chandehers and ceiling fans); water treatment systems; pool and spa equipment; garage door openers and transmitters' tele-
vision antennas; unpotted shrubbery, plantings and trees; any remaining heating and cooking fuels slored on the Property at the time ~f set-
tlement; sump pumps; storage sheds; mailboxes; wall to wall carpeting; existing window screens, storm windows and screen/storm dool1l'
window covering hardware, shades and blinds; awnings; built-in air conditioners; built-in appliances; and the ",nge/oveo unless otherwiS:
stated. Also included:
(B) LEASED items (not owned by Seller):
(e) EXCLUDED fixtures and items:
DA TESfflME IS OF THE ESSENCE (9...()5)
(A) The settlement date and all other dates and times referred to for the performance of any of the obligations of this Agreement are of the essence
and are binding,
(B) For ptrrpOses of this Agreement, the number of days will be counted from 'the date of execution, excluding the day this Agreement was exe-
cuted and including the last day of the time period. The Execution Date of this Agreement is the date when Buyer and Seller have indicated
full acceptance of this Agreement by signing and/or initialing it All changes to this Agreement should be initialed and dated.
(C) The settlement date is not extended by any other provision of this Agreement and may only be extended by mutual written agreement of the parties.
(D) Certain time periods are pre-printed in this Agreement as a convenience to the Buyer and Seller. All pre-printed time periods are negotiable
and may be changed by striking out the pre-printed text and inserting a different time period acceptable to all parties.
MORTGAGE CONTINGENCY (9"'()5)
g;w AlVED, This sale is NOT contingent on mortgage financing, although Buyer may still obtain mortgage financing,
U1 ELECTED,
(A) This sale is contingent upon Buyer obtaining mortgage financing as follows:
First Mortgage on the Property Second Mortgage on the Property
Loan Amount $ }. ~O) b (') () Loan AmountS
Minimum Term .:;; 0 years Minimum Term years
Type of mortgage \/ ~ Type of mortgage
Mortgage lender
_ ~" LL f
A1(0I~.
,
Mortgage lender
Interest rate I %; however, Buyer agrees to accept tbe
interest rate 85 may be committed by the mortgage lender, not to
e~ceed a m~irnum intere~t ~ate .of 1 %.
Interest rate %; however, Buyer agrees to accept the
Interest rate as may be committed by the mortgage lender, not to
exceed a maximum interest rate of %.
ent and other fees charged
by the lender as a percentage of the mortgage loan (excluding any mort-
gage insurance premiums or V A funding fee) not to exceed
% (0% if not specified) of the mortgage loan.
by the lender as a percentage of the mortgage loan (excluding any mort-
gage insurance premiums or VA funding fee) not to exceed
% (0% if not specified) of the mortgage loan.
81 The interest rate(s) and fee(s) provisions in paragraph 6 (A) are satisfied if the mortgage lender{s) gives Buyer the right to guanmtee the interest rate(s)
82 and fee(s) at or below the maximum levels stated, Buyer gives Seller the right, at Seller's sole option and as permitted by law and the mortgage
83 lender{s), to contribute financially, without promise of reimbursement, to the Buyer and/or the mortgage lender{s) to make the above mortgage terms
84 available to Buyer.
85 (B) Within days (10 if not specified) from the Execution Date of this Agreement, Buyer will make a completed, written mortgage appli-
86 cation for the mortgage tenDS stated above to the mortgage lender{s) identified in paragnph 6 (A), if any, otherwise to a responsible mortgage
87 lender{s) of Buyer's choice, Broker for Buyer, if any, otherwise Broker for SeUer, i. authorized to communicate with the mortgage
88 lender(s) to assist in tbe mortgage loan process.
89 (C) Should Buyer furnisb false or incomplete information to Seller, Broker(s), or tbe mortgage lender(s) concerning Buyer's legal or
90 financial status, or fail to cooperate in good faith in processing the mortgage loan application, which results in the mortgage lender(s)
91 refusing to approve a mortgage loan commitment, Buyer will be in default ofthis Agreement.
92 (D) ]. Mortgage commitment date: :..)~ Q '7- ~ DC:; to. If Seller does not receive a copy of Buyer's mortgage commitment(s) by this
93 date, Buyer and SeUer agree to extend the mortgage commitment date until SeUer terminates this Agreement by written notice to Buyer.
94 2, Upon receiving a mortgage commitment, Buyer will promptly deliver a copy of the commitment to Seller.
95 3. Seller may terminate this Agreement in writing after the mortgage commitment date, if the mortgage commitment(s):
96 a. Is not valid until the date of settlement, OR
97 b, Is conditioned upon the sale and settlement of any other property, OR
98 c. Does not satisfY all the mortgage terms as stated in paragraph 6 (A), OR
99 d. Contains any oth~r condition not specified in this Agreement that is not satisfied and/or removed in wntmg by the mortgage lender(s)
100 within 7 DAYS after the mortgage commitment date In paragraph 6 (D) (1), other than those conditions that are customari-
101 Iy satisfied at or near settlement, such as obtaining insurnnce and confirming employment status.
102 4. If this Agreement is terminated pursuant to paragraphs 6 (D) (I) or (3), or the mortgage loan(s) is not obtained for settlement, aU deposit monies
103 will be returned to Buyer according to the terms of paragraph 30 and this Agreement will be VOID. Buyer will be responsible for any costs
104 incurred by Buyer for any inspections or certifications obtained according to the terms of this Agreement, and any costs incurred by Buyer for.
105 (I) Title search, title insurance and/or mechanics' lien insurance, or any fee for canceUation; (2) Flood insurance and/or fire insuranc..e''With
I 06 extended coverage, mine subsidence insurance, or any fee for canceUation; (3) Appraisal fees and charges paid in advance to mortgage len/d~rt.s).,
107 Buyer Initials: ~ AlS-R Page 2 of 17 Seller Jnitia~s/'~'~',.~/- C v./>-'
\.J .. Revised 9/05
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(E)' If the mortgage lendens). or an insurer providing property and casualty insurance as required hy the mortgage 1 der() , ,
. . , . , en s . requITes repal1'S to the
Property, Buyer wIll, upon recelvmg the requuem. ents, deliver a copy of the requirements to Seller Within 5 DAYS f .. th
f h' 11" '0 recelvmg e copy
o t e requtrements, Se er wtll notify Buyer whether Seller will make the required repairs at Seller's expense,
I, If Seller makes the required repairs to the satisfaction of the mortgage lender(s) or insurer. Buyer accepts the Property and agrees to the
RELEASE in paragraph 27 oftbis Agreement.
2, If Seller will not make the required repaID;, or If Seller falls to respond within the time given, Buyer will. within
Seller of Buyer's choice to:
a. Make the required r~airs, at Buyer's expense, with permission and access to the Property given by Seller; permission and access may
not be W1Teasonably WIthheld by Seller, OR
b. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph
30 of this Agreement.
(F) Seller Assist
Q;NOT APPLICABLE
~ APP~LIi1!PU.i}I-R~1
~ $ ~ 1~. ,or
o
5
DA YS, notify
% of Purchase Price, maximum, toward Buyer's costs as acceptable to the mortgage lender(s).
FRANA, IF APPLICABLE
.
(G)
It is expressly agreed that notwithstanding any other provisions of this contract, Buyer will not be obligated to complete the pun:hase of
the Property described herein or to incur any penalty by forfeiture of earnest money deposits or otherwise unless Buyer bas been given, in
accordance with HUDIFHA or V A requirements, a written statement by the Federal Housing Commissioner, Veternns Administration, or a
Direct Endorsement Lender setting forth the appraised value of the Property of not less than $ (the dollar amount
to be inserted is the sales price as stated in this Agreement). Buyer will have the privilege and option of proceeding with consummation of
the contract without regard to the amount of the appraised valuation, The appraised valuation is anived at to determine the maximum mort-
gage the Department of Housing and Urban Development will insure. HUD does not warrant the value nor the condition of the Property.
Buyer should satisfy bimseIflherself that the price and condition of the Property are acceptable.
WarnIng: Section 1010 of Title 18, U.S.c., Department of Housing and UIban Development and Federal Housing Administration
Trnnsactions, provides, "Whoever for the pllIpOse of . . . influencing in any way the action of such Department, makes, passes, utters or
publishes any statement, knowing the same to be false. . . shall be fined under this title or imprisoned not more than two years, or both, "
~Department of Housing and Urban Development (BUD) NOTICE TO PURCHASERS: Buyer's Acknowledgement
M Buyer has received the HUD Notice "For Your Protection: Get a Home lnspection." Buyer understands the importance of getting
an independent home inspection and has thought about this before signing this Agreement. Buyer understands that FHA will not
perform a home inspection nor guarantee the price or condition of the Property,
Certification We the undersigned, Sellens) and BuyeJ{s) party to this transaction each certify that the terms of this contract for purchase
are true to the best of our knowledge and belief, and that any other agreement entered into by any of these parities in connection with this
transaction is attached to this Agreement.
(H)
en
7. WAIVER OF CONTINGENCIES (9-05)
If this Agreement is contingent on Buyer's right to inspect and/or repair the Property, or to verify insurability, environmental conditions,
boundaries, certifications, zoning classification or use, or any other information regarding the Property, Buyer's failure to exercise any of
Buyer's options within the times set forth in this Agreement is a WAIVER of that contingency and Buyer accepts the Property and agrees to
the RELEASE in paragraph 27 of this Agreement.
8. ~PERTY INSURANCE A V AllABILITY (9-05)
10 WAIVED. lIDs Agreement is NOT contingent upon Buyer obtaining property and casualty insmance for the Property, although Buyer may
still obtain property and casualty insmance.
o ELECTED. Contingency Period: DAYS (15 if not specified) from the Execution Date of this Agreement
Within the Contingency Period, Buyer will make application for property and casualty insurance for the Property to a responsible insurer. Broker
for Buyer, if any, otherwise Broker for Seller, may communicate with the insurer to assist in the insurance process. If Buyer cannot obtain
property and casualty insurance for the Property on terms and conditions reasonably acceptable to Buyer, Buyer will, within the Contingency
Period:
(A) Accept the Property and agree to the RELEASE in paragrapb 27 of this Agreement, OR
(B) Terminate tbis Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 30 of this
Agreement, OR
(C) Enter into a mutually acceptable written agreement with Seller.
If Buyer and Seller do not reach a written agreement during the Contingency Period, and Buyer does not terminate this Agreement by
written notice to Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph 27 of this Agreement.
9. INSPECTIONS (9-05)
(A) Seller will provide access to insurers' representatives and, as may be required by this Agreement, to surveyor.;, municipal officials. and inspec-
tors, If Buyer is obtaining mortgage financing, Seller will provide access to the Property to appraisen; and others reasonably required by mort-
gage lendeJ{s). Buyer may attend any inspections.
(B) Buyer may make a pre-settlement walk-through inspection of the Property. Buyer's right to this inspection is not waived by any other provision
of this Agreement
(C) Seller will have heating and all utilities (including fuel(s)) on for all inspections.
(D) All inspector.;, including home inspector.;, are authorized by Buyer to provide a copy of any inspection report to Broker for Buyer.
(E) Seller h~~rght, upon request, to receive without charge a copy of any inspection report from the party for whom it was prepared.. . ' I ~/ 0--'
Buyer Initials: ~ AlS-R Page 3 of 17 Seller IDltialSL5
- Revised 9/05
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10. INSPECTION CONTINGENCY OPTIONS (9'{)S)
The insp.ection. contIngencies elected by Buyer in paragraphs 11-15 are controlled by the Options set forth below. The time periods slated in
these OptiOns WIll apply to all inspection contingencies in paragraphs II-IS unless otherwise stated in this Agreement.
Option 1. Within the Contingency Period, as stated in paragraphs 11-15, Buyer will:
I, Accept the Property with the information stated in the report(s) and agree to the RELEASE in paragrapb 27 of this Agreement, OR
2, If Buyer is not satisfied with ~e information stated in the report(s), terminate thl. Agreement by written notice to Seller, with aU deposit
momes returned to Buyer accordmg to the terms of paragraph 30 of this Agreement, OR
3. Enter into a mutually acceptable written agreement with Seller providing for any repairs or improvements to the Property and/or any
credit to Buyer at settlement, as acceptable to the mortgage lender(s), if any.
I! Buyer and SeUer do not reach a written agreement during the specified Contingency Period, and Buyer does not terminate this
Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph
27 of this Agreement.
Within the Contingency Period, as stated In paragraphs 11-15, Buyer will:
Accept the Property with the information stated in the report(s) and agree to the RELEASE in paragraph 27 of this Agreement, OR
If Buyer is not satisfied with the information stated in the report(s), present the report(s} to SeUer with a Written Corrective Proposal
("Proposal") listing corrections and/or credits desired by Buyer. The Proposal may, but is not required to, include the name of a prop-
erly licensed or qualified professional to perform the corrections requested in the Proposal, provisions for payment, including retests, and
a projected date for completion of the corrections, Buyer agrees that Seller will not be held liable for corrections that do not comply with
mortgage lender or governmental requirements if performed in a workmanlike manner according to the terms of Buyer's Proposal, or by
a contractor selected by Buyer,
a. Within days {7 if not specified} of receiving Buyer's Proposal, Seller will inform Buyer in writing of Seller's choice to:
(I) Satisfy the terms of Buyer's Proposal, OR
{2} Credit Buyer at settlement for the costs to satisfy the terms of Buyer's Proposal, as acceptable to the mortgage lender{s), if any. OR
(3) Not satisfy the terms of Buyer's Proposal and not credit Buyer at settlement for the costs to satisfy the terms of Buyer's Proposal.
b. If Seller agrees to satisfy the terms of Buyer's Proposal or to credit Buyer at settlement as specified above, Buyer accepts the Property
and agrees to the RELEASE in paragraph 27 of this Agreement.
c. If Seller chooses not to satisfy the terms of Buyer's Proposal and not to credit Buyer at settlement as specified above, or if Seller fails
to choose any option within the time given, Buyer will, within days (5 if not specified):
(I) Accept the Property with the information stated in the report(s) and agree to the RELEASE in paragraph 27 of this Agreement, OR
(2) Tenninate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of pam-
graph 30 of this Agreement, OR
(3) Enter into a mutually acceptable written agreement with Seller providing for any repairs or improvements to the Property and/or
any credit to Buyer at settlement, as acceptable to the mortgage lender{s), if any.
If Buyer and Seller do not reach a written agreement during the time specified in Option 2, 2. c., and Buyer does not ter-
minate this Agreement by written notice to Seller within that time, Buyer will accept the Property and agree to the
RELEASE in paragraph 27 of this Agreement.
11. PROPERTY INSPECTION CONTINGENCY (9'{)5) (See Property and Environmental Inspection Notices)
Buyer understands that property inspections, certifications and/or investigations can be performed by professional contractors, home inspectors,
engineers, architects and other properly licensed or otherwise qualified professionals, and may include, but are not limited to: structwal compo-
nents; roof; exterior windows and exterior doors; exterior siding, fascia, gutters and downspouts; swimming pools, hot tubs and spas; appliances;
electrical, plumbing, heating and cooling systems; water penetration; environmental hazards (e,g., mold, fungi, indoor air quality, asbestos, under-
ground storage tanks, etc.); electromagnetic fields; wetlands inspection; flood plain verification; property boundary/square footage verification;
and any other items Buyer may select. Buyer is advised to investigate easements, deed and use restrictions (including any historic preservation
restrictions or ordinances) that apply to the Property and to review local zoning ordinances. Other provisions of this Agreement may provide for
~ections, certifications and/or investigations that are not waived or altered by Buyer's election here.
&l WAIVED, Buyer has the option to conduct property inspections, certifications and/or investigations. Buyer WANES TIllS OPTION and
agrees to the RELEASE in paragraph 27 of this Agreement.
o ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement.
(A) Within the Contingency Period, Buyer, at Buyer's expense, may have inspections, certifications andlor investigations completed by proper-
ly licensed or otherwise qualified professionals. If Buyer elects to have a home inspection of the Property, as defined in the PctlIlS)'lvania Home
Inspection Law (see lnfonnation Regarding the Home Inspection Law), the home inspection must be performed by a full member in good stand-
ing of a national home inspection association or a person supervised by a full member of a national home inspection association, in accordance
with the ethical standards and code of conduct or practice of that association, or by a properly licensed or registered professional engineer, or a
properly licensed or registered architect. This contingency does not apply to the following existing conditions and/or items:
Option 2.
I.
2.
(B) If Buyer is not satisfied with the condition of the Property as stated in the written inspection report(s), Buyer will proceed under one of the fol-
lowing Options as listed in paragraph 10 within the Contingency Period:
o Option I
o Option 2
For the purposes of Paragraph 11 only, Buyer agrees to accept the Property with the results of any report(s) and agrees to
the RELEASE in paragraph 27 of this Agreement if the total cost to correct the conditions stated in the report{s) is less than
$ (SO if not specified) (the "Deductible Amount"). Otherwise, all provisions ofpamgrapb 10, Option 2, shall
apply, except that Seller will be deemed to have satisfied the terms of Buyer's Proposal if Seller agrees to perform corrections
or offer credits such that the cumulative cost of any uncorrected or uncredited condition(s) is equal to the Deductible Amount.
(-)
236 Buyer Initials: ~
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12. WOOD INFESTATION INSPECfJON CONTINGENCY (9-05)
o W AIVE~. Buyer has the option to have the Property inspected for wood infestation by an inspector certified as a wood-destroying pests pesti-
--1 clde applicator. BUYER WAIVES THIS OPTION and agrees to the RELEASE in paragraph 27 of this Agreement.
blI ELECTED. Contingency Period. days (15 if not specified) from the Execution Date of this Agreement.
(A) Within t~e Continge~cy Period, Buyer, at Buyer's expense, may obtain a written "Wood-Destroying Insect Infestation Inspection Report"
&om an Inspector cernfied as a wood-destruying pests pesticide applicator and will deliver it and all supporting documents and drawings pro-
Vided by the InSpector to Seller, The report is to be made satisfactory to and in compliance with applicable laws, mortgage lender requirements,
and/or Federal Insuring and Guaranteeing Agency requirements, if any, The inspection is to be limited to all readily visible and accessible areas
of all structures on the Property except fences and the following structures, which will not be inspected:
(B) If the inspection reveals active infestation(s), Buyer, at Buyer's expense, may within the Contingency Period, obtain a Proposal from a wood-
destroying pests pesticide applicator to treat the Property.
(C) If the inspection reveals damage from active or previous infestation(s), Buyer, at Buyer's expense, may within the Contingency Period, obtain
a written report from a professional contractor, home inspector or structural engineer that is limited to structural damage to the Property caused
by wood-destroying organisms and a Proposal to repair and/or treat the Property.
(D) If Buyer is not satisfied with the condition of the Property as stated in the written inspection report(s), Buyer will proceed under one of the fol-
~ng Options as listed in paragraph 10 withIn the Contingency Period:
G.lJ Option 1
o Option 2
13. STATUS OF RADON (9-05) (see Information Regarding Radon)
(A) Seller has no knowledge concerning the presence or absence of radon unless checked below:
o I. Seller has knowledge that the Property was tested on the dates, by the methods (e.g., charcoal canister, alpha track, etc,), and with the
results of all tests indicated below:
DATE TYPE OF TEST
RESULTS (picoCurieslliter or working levels)
02.
Seller has knowledge that the Property underwent radon reduction measures on the date(s) and by the methodes) indicated below:
DATE RADON REDUCTION METHOD
COPIES OF ALL A V AlLABLE TEST REPORTS will be delivered to Buyer with this Agreement. SELLER DOES NOT WARRANT
EITlfER THE MElliODS OR RESULTS OF TIIE TESTS,
(B) ~ON INSPECTION CONTINGENCY
I\ll WAIVED. Buyer has the optiou to have the Property inspected for radon by a certified inspector. BUYER WAIVES THIS OPTION and
agrees to the RELEASE in paragraph 27 of this Agreement.
o ELECTED. Contingency Period: days (J 5 if not specified) from the Execution Date of this Agreement.
Within the Contingency Period, Buyer, at Buyer's expense, may obtain a radon test of the Property from a certified inspector. If Seller
performs any radon remediation, Seller will provide Buyer a certification that the remediation was performed by a properly licensed and
certified radon mitigation company.
1. If the written test report reveals the presence of radon below 0.02 working levels or 4 picoCurieslliter (4 pCiIL), Buyer accepts the
Property and agrees to the RELEASE in paragraph 27 of this Agreement.
2. If the written test report reveals the presence of radon at or exceeding 0.02 working levels or 4 picoCurieslliter (4 pCiIL), Buyer will
proceed under one of the following Options as listed in paragraph 10 within the Contingency Period:
o Option 1
o Option 2
14. STATUS OF WATER (9-05)
(A) S~r represents that the Property is served by:
I2J Public Water
o On-site Water
o Community Water
o None
o
(B) ~TER SERVICE INSPECfION CONTINGENCY
Kl WAIVED. Buyer has the option to have an inspection of the quality and or quantity of the water system for the Property, BUYER WAIVES
THlS OPTION and agrees to the RELEASE in paragraph 27 of this Agreement.
o ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement .
1. Within the Contingency Period, Buyer, at Buyer's expense, may obtain an inspection of the quality and/or quanttty of the water
system from a properly licensed or otherwise qualified water/well testing company. . ,. .
2. If required by the inspection company, Seller, at Seller's expense, will locate and provide access to the on-site (or lDdivldual) water
system, Seller also agrees to restore the Property, at Seller's expense, prior to settlement.
3, If Buyer is not satisfied with the condition of the water system as stated in the written inspection report(s), Buyer will proceed under
one of the following Options as listed in paragraph 10 within the Contingency Period:
o Option 1
o Option 2
30 I Buyer Initials:
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302' 15. STATUS OF SEWER (9-05)
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(A) ~er represents that the Property is served by:
M Public Sewer
D Individual On-lot Sewage Disposal System (see Sewage Notice I)
D Individual On-lot Sewage Disposal System in Proximity to WeU (see Sewage Notice I; see Sewage Notice 4, if applicable)
D Community Sewage Disposal System
D Ten-Acre Permit Exemption (see Sewage Notice 2)
D Holding Tank (see Sewage Notice 3)
D None (see Sewage Notice I)
D None Available/Permit Limitations in Effect (see Sewage Notice 5)
D
(B) INPIVIDUAL ON-LOT SEWAGE DISPOSAL INSPECTION CONTINGENCY
GZI WAIVED, Buyer has the option to have an inspection of the individual on-lot sewage disposal system for the Property. BUYER
WAIVES TIllS OPTION and agrees to the RELEASE in paragraph 27 of this Agreement.
D ELECTED. Contingency Period: days (15 if not specified) from the Execution Date of this Agreement.
] Within the Contingency Period, Buyer, at Buyer's expense, may obtain an inspection of the individual on-lot sewage disposal sys-
tem from a qualified, professional inspector.
2, If and as required by the inspection company, SeUer, at Seller's expense, will locate, provide access to and empty the individual on-
lot sewage disposal system. Seller will also restore the Property, at Seller's expense, prior to settlement.
3. If the inspection report reveals defects that do not require expansion or replacement of the existing individual on-lot sewage dispos-
al system, Buyer will proceed under one of the following Options as listed in paragraph 10 within the Contingency Period:
o Optinn 1
o Option 2
4, If the inspection report reveals the need to expand or replace the existing individual on-lot sewage disposal system, Seller may
within 25 DAYS of receiving the inspection report, submit a Written Corrective Proposal (''Proposa]'') to Buyer. The Proposal
will include, but not be limited to, the name of the company to perfOllD the expansion or replacement; provisions for payment, includ-
ing retests; and a projected completion date for corrective measures. Within 5 DAYS of receiving Seller's Proposal, or if no
Proposal is provided within the time given, Buyer will notify Seller in writing of Buyer's choice to:
a, Agree to the terms of the Proposal, if any, whereupon Buyer accepts the Property and agrees to the RELEASE in paragrapb 27 of
this Agreement, OR
b. Terminate this Agreement by wrinen notice to Seller, with all deposit monies returned to Buyer according to the tc:rms of para-
grnph300ftlllsAgreanenl
c, Accept the Property and the existing system and agree to the RELEASE in paragraph 27 of this Agreement, and, if required by
any mortgage lender and/or any governmental authority, correct the defects before settlanent or within the time required by the
mortgage lender andlor governmental authority, at Buyer's sole expense, and with permission and access to the Property given by
Seller. Permission and access may not be unreasonably withheld by Seller. If Seller denies Buyer permission and/or access to cor-
rect the defects, Buyer may, within 5 , D~ YS of Seller's denial, terminate this Agreement by written notice to Seller, with all
deposit monies returned to Buyer according to the terms of paragraph 30 of this Agreement
16. HOME WARRANTIES (9-05)
At or before settlement, either party may have the opportunity to purchase a home warranty for the Property from a third-party vendor. Buyer and
Seller understand that a home wammty for the Property does not alter any disclosure requirements of Seller, will not cover or warrant any pre-
existing defects of the Property, and will not alter, waive or extend any provisions of this Agreement regarding inspections or certifications that
Buyer has elected or waived as part of this Agreement. Buyer and Seller understand that the Iiccnscc, broker or mortgage lender who orders the
home wammty may possibly receive a fee paid by the home wammty company.
17. ZONING CLASSIFICATION & VERIFICATION OF USE CONTINGENCY (9-05)
(A) Failure of this Agreement to contain the zoning classification (except in cases wbere the property {and each pan;e1 thereof, if subdividable} is
zoned so]e1y or primarily to permit single-family dwellings) will render this Agreement voidable at Buyer's option, and, if voided. any deposits
tendered by the Buyer will be returned to the Buyer without any requirement for court action.
Zoning Classification: f) e.';. i ,l-€ i* ~ ~ti-
(B) Contingency Period: days (7 if not specified) from the Execution Date of this Agreement.
Within the Contingency Period, Buyer, at Buyer's expense, may veri1'y that the present use (
of the Property is permined. In the event the present use is not permitted, Buyer will, within the Contingency Period, give Seller wrinen
notice that the present use of the Property is not permitted and that Buyer will:
I, Accept the Property and agree to the RELEASE in paragraph 27 of this Agreement, OR
2. Terminate this Agreement by wrinen notice to Seller, with all deposit monies re1llmed to Buyer according to the terms of paragraph 30 of
this Agreement.
If Buyer fails to respond within the Contingency Period or does not terminate this Agreement by written notlce to Seller wlthin that
time, Buyer will accept the Property and agree to the RELEASE in paragraph 7.7 of this Agreement.
18. NOTICES, ASSESSMENTS & CERTIFICATES OF OCCUPANCY (9-05)
(A) Seller represents, as of the date Seller signed this Agreement, that no public improvement, condominium or homeowner association assessments
bave been made against the Property which remain unpaid, and that no notice by any government or public authority has been served upon Seller
or anyone on Seller's bebalf, including notices relating to violations of zoning, housing, building, safety or fire ordinances that remain UDC?r-
rected, and that Seller knows of no condition that would constitute a violation of any such ordinances that remain uncorrected, unless otherwise
specified here:
(B) Seller knows of no other potential notices (including violations) and/or assessments except as follows:
*~
Seller InitiaIE./_
368 Buyer Initials: ~
AlS-R Page 6 of 17
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(C) in the event any notices (inc]uding violations) and/or assessments are received after Seller has signed
Sel~er will provide a copy of the notices and/or assessments to Buyer and will notify Buyer in writing within
notices andlor assessments that Seller will:
]. Fully comply with the notices and/or assessments at Seller's expense before settlement. If Seller fully complies with the notices and/or
assessments, Buyer accepts the Property and agrees to the RELEASE in paragraph 27 of this Agreement. OR
~Ol c~mplY With. the notices and/or assessments, If Seller chooses not to comply with the DOtiCes andlor assessments, or fail. within the
time gIven to no~fy Buyer ,:hether Seller will comply, Buyer will notify Seller in writing within 5 DA YS that Buyer will:
a, C~mp]y WIth the notices andlor assessments at Buyer's expense, accept the Property, and agree to the RELEASE in paragrapb 27 of
this Agreement, OR
Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph
30 ofthis Agreement
If Buyer fails to respond withIn the time slllted In paragraph 18 (q (2) or fails to terminate this Agreement by written notice to
Seller within that time, Buyer will accept the Property and agree to the RELEASE in paragraph 27 of this Agreement.
(D) If required by law, within 30 DAYS from the Execution Date of this Agreement, but in no case later than ]5 days prior to settlement, Seller
will order at Seller's expense a certification from the appropriate municipal department(s) disclosing notice of any uncorrected violations of zon-
ing. housing, building, safety or flre ordinances and/or a certificate permitting occupancy of the Property. If Buyer receives a notice of any
required repam/improvements, Buyer will promptly deliver a copy of the notice to Seller.
I. Within 5 DAYS of receiving notice from the municipality that repairs/improvements are required, Seller will notify Buyer in writ-
ing that Seller will:
a. Make the required repain;/improvements to the satisfaction of the municipality. If Seller makes the required repairs/improvements,
Buyer accepts the Property and agrees to the RELEASE in paragraph 27 of this Agreement, OR
Not make the required repairs/improvements. If Seller chooses not to make the required repaini/improvements, Buyer will notify
Seller in writing within 5 DAYS that Buyer will:
( I ) Make the repairYimprovements at Buyer,s expense, with permission and access to the Property given by Seller, which will not
be unreasonably withheld, OR
(2) Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of para-
grnph300ftillsA~ement.
If Buyer fail. to respond within the time stated in paragraph 18 (D) (1) (b) or fall. to termlnate thi. Agreement by written notice
to Seller within that time, Buyer will accept the Property and agree to the RELEASE In paragraph 27 of thi. Agreement, and Buyer
accepts the respon.iblUty to perronn the repaln/lmprovements according to the ternu oftbe notice provided by the municipallty.
If Seller denies Buyer permission to make the required repairs/improvements, or does not provide Buyer access before settlement to make
the required repaini/improvernents, Buyer may, within 5 DAYS, terminate this A~ement by written notice to Seller, with all deposit
monies returned to Buyer according to the terms of paragraph 30 of this Agreement
If repairYimprovements are required iuuI Seller fails to provide a copy of the notice to Buyer as required in paragraph 18 (D), Seller will
perform all repairs/improvements as required by the notice at Seller's expense. Paragraph 18 (D) (3) will survive settlement.
(E) Access to a public road may require issuance of a highway occupancy permit from the Department of Transportation.
19. TITLE, SURVEYS & COSTS (9-05)
(A) The Property will be ~onveyed with good and marketable title as is insurable by a reputable title insurance company at the regular rates, free
and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing deed restrictions; historic preservation
restrictions or ordinances; building restrictions; ordinances; casements of roads; casements visible upon the ground; easements of record; and
privileges or rights of public service companies, ifany,
(B) Buyer will pay for the following: (I) Title search, title insurance and/or mechanics' lien insurance, or any fee for cancellation;
(2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, or any fee for cancellation; (3) Appraisal fees and
charges paid in advance to mortgage lendeI{s); (4) Buyer's customary settlement costs and accruals.
(C) Any survey or surveys required by the title insurance company or the abstracting attoroey for preparing an adequate legal description of the
Property (or the correction thereof) will be obtained and paid for by Seller. Any survey or surveys desired by Buyer or required by the mortgage
lender will be obtained and paid for by Buyer,
(D) If Seller is unable to give a good and marketable title and such as is insurable by a reputable title insurance company at the regular rates, as speci-
fied in paragraph 19 (A). Buyer will:
I. Accept the Property with such title as Seller can give, with no change to the purchase price, and agree to the RELEASE in paragraph 27 of this
Agreement, OR
Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph 30 of.
this Agreement. Upon termination, Seller will reimburse Buyer for any costs incurred by Buyer for any inspections or certifications obtained
according to the terms of tills Agreement, and for those items specified in paragrnph 19 (B) items (1), (2), (3) and in paragraph 19 (C),
(E) The Property is not a "recreational cabin" as defined in the Pennsylvania Construction Code Act unless otherwise stated here (see Information
Regarding Recreational Cabins):
20. q>NDOMINIUMlPLANNED COMMUNITY (HOMEOWNER ASSOCIATION) RESALE NOTICE (9-05)
ill NOT APPLICABLE
o APPLICABLE: CONDOMINIUM. The Property is a unit of a condominium that is primarily run by a unit owners' assoCJaDon. ~3407 of the
Uniform Condominium Act of Pennsylvania (see Information Regarding Condominiums and Planned Communities) requires Seller to furnisb
Buyer with a Certificate of Resale and copies of the condominium declaration (other than plats and plans), the bylaws and the rules and regu-
lations of the association.
o APPLICABLE: PLANNED COMMUNITY (HOMEOWNER ASSOCIATION). The Property is part of a planned community as defined by
the Uniform Planned Community Act (see Information Regarding Condominiums and Planned Communities). ~5407(a) of the Act requires
Seller to furnish Buyer with a copy of the Declaration (other than plats and plans), the bylaws the rules and regulations of the association, and /
a Certificate containing the provisions set forth in ~5407(a) of the Act
Buyer initials: ,~- AlS-R Page 7 of 17
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this Agreement and before settlement,
5 DAYS of receiving the
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THE FOLLOWING APPLIES TO PROPERTIES THAT ARE PART OF A CONDOMINIUM OR A PLANNED COMMUNlTV.
(A) Within 15 DA YS from the Execution Date of this Agreement, Seller, at Seller's expense, will request from the association a Cenificate of
Resale and any other documents necessary to enable Seller to comply with the relevant Act. The Act provides that the association is required to
provide these documents within 10 days of Seller's request.
(B) Seller will promptly deliver to Buyer all documents received from the association. Under the Act, Seller is not liable to Buyer for the failure of
th~ w:sociation to provide the Certficate in a timely manner. nor is Seller liable to Buyer for any incorrect information provided by the associ-
allon ID the Cenificate.
(C) The Act ~rovides th~t Buyer may d~lare this AgTeement VOID at any time before Buyer receives the association documents and for 5 days
after rec~lpt, OR u~ti1 settlement, whichever occurs first. Buyer's notice to Seller must be in writing; upon Buyer declaring this Agreement void,
all depoSit mornes will be returned to Buyer according to the terms of parngrapb 30 of this Agreement.
(D) If the association has the right to buy the Propeny (right of fim refusal), and the association exercises that right, Seller will reimburse Buyer for
any costs incurred by Buyer for any inspections or certifications obtained according to the terms of the Agreement, and any costs incurred by Buyer
for: (I) Title search, title insurance and/or mechanics' lien insurance, or any fee for cancellation; (2) Flood insurance and/or fire insurance with
extended coverage, mine subsidence insurance, or any fee for cancellation; (3) Appraisal fees and charges paid in advance to mortgage lender(s).
21. MAINTENANCE & RISK OF LOSS (9-05)
(A) Seller will maintain the Property, grounds, fIxtures and personal property specifically listed in this AgTeemenl in its present condition, norrnaJ
wear and tear excepted
(B) If any system or appliance included in the sale of the Property fails before settlement, Seller will:
I. Repair or replace the failed system or appliance before settlement, OR
2. Provide prompt written notice to Buyer of Seller's decision to:
a. Credit Buyer at settlement for the fair market value of the failed system or appliance, as acceptable to the mortgage lender(s), if any, OR
b. Not repair or replace the failed system or appliance, and not credit Buyer at settlement for the fair market value of the failed system
or appliance.
If Seller does not repair or replace the failed system or appliance or agree to credit Buyer for its fair market value, or if Seller fails to noti-
fy Buyer of Seller's choice, Buyer will notify Seller in writing within 5 DAYS or before settlement, whichever is earlier, that Buyer
will:
a. Accept the Property and agree to the RELEASE in paragraph 27 of this Agreement, OR
b, Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of paragraph
30 of this Agreement.
(C) Seller bears the risk of loss from fire or other casualties until settlement. If any property included in this sale is destroyed and not replaced, Buyer will:
I. Accept the Property in its then current condition together with the proceeds of any insurance recovery obtainable by Seller, OR
2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of parngrapb 30 of
this Agreement.
22. COAL NOTICE (Where AppUcable)
TInS DOCUMENT MAY NOT SEW-. CONVEY. TRANSFER. INCLUDE OR INSURE TIlE 'JTJ1.E TO TIlE COAL ANn RIGIITS OF SUPPORT UNDERNEATH TIlE SURFACE LAND
DESCRIBED OR REFERRED TO HERElN. ANn TIlE OWNER OR OWNERS OF SUCH COAL MAY HAVE TIlE COMPLETE LEGAL RIGIfT TO REMOVE ,ALL SUCH COAL ANn
IN .TIlAT CONNECTION, DAMAGE MAY RESULT TO TIlE SURFACE OF TIlE LAND AND ANY HOUSE, BUUDING OR UIlIER STIlucnJRE ON OR IN SUCH LAND. (This
notice is set forth in the manner provided in Section I of the Act of July 17, 1957, P.L. 984.) "Buyer acknowledges that he may not be obtaining the
right of protection against subsidence resulting from coal mining operations, and that the property described herein may be protected from damage
due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgement is made for the purpose
of complying with the provisions of Section 14 of the Bituminous Mine Subsidence and the Land Conservation Act of April 27, 1966." Buyer agrees
to sign the deed from Seiler which deed will contain the aforesaid provision.
23. POSSESSION (9-05)
(A) Possession is to be delivered by deed, keys and:
I, Physical possession to vacant Propeny free of debris, with all structures broom-clean, at day and time settlement, AND/OR
2. Assignment of any existing lease(s). together with any security deposits and interest, at day and time of settlement, if Propeny is leased at
the execution of this Agreement, unless otherwise stated in this Agreement.
(B) Buyer will acknowledge existing lease(s) by initialing the lease(s) at the execution of this Agreement, unless otherwise specified herein.
(C) Seller will not enter into any new leases, extensions of existing leases or additional leases for the Propeny without the written consent of Buyer.
24. RECORDING (9-05) This AgTeement will not be recorded in the Office of the Recorder of Deeds or in any other office or place of public record,
If Buyer causes or permits this AgTeement to be recorded, Seller may elect to treat such act as a breach of this Agreement.
25. ASSIGNMENT (9-05) This Agreement is binding upon the parties, their heirs, personal representatives, guardians and successors, and to the extent
assignable, on the assigns of the parties hereto. Buyer will not transfer or assign this Agreement without the written consent of Seller unless other-
wise stated in this Agreement.
26. GOVERNING LAW, VENUE & PERSONAL JURISDICTION (9-05)
(A) The validity and construction of this Agreement, and the rights and duties of the parties, will be governed in accordance with the laws of the
Commonwealth of Pennsylvania
(B) The parties agree that any dispute, controversy OT claim arising under or in connection with this Agreement or its performance by either party
shall be decided exclusively by and in the state or federal courts sitting in the Commonwealth of Pennsylvania.
27. RELEASE (9-05)
Buyer releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES and any OFFICER or
PARTNER of anyone of them and any other PERSON, FIRM or CORPORATION who may be Uable by or through them, from any and
all claims, losses or demands, including, but not limited to, personal Injury and property damage and aU of the consequences thereof, whether
known or not, which may arise from the presence of termites or other wood-boring Insects, radon, lead-based paInt hazards, mold, fungi or
indoor air quaUty, environmental hazards, any defects in the individual on-lot sewage disposal system or deficiencies in the on-site water
service system, or any defects or conditions on the Property. Should SeUer be In default under the ternu of this Agreement, or In violation of
any seller disclosure law or regulation, this release does not deprive Buyer of any right to pursue any remedies that may be available under
law or equity. This release will survive settlement.
(1
Buyer Initials: ~ AlS-R Page 8 of 17
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505 28. REPRESENTATIONS (9-05)
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(A) All representations. claims, advertising, promotional activities, brochures or plans of any kind made by SeUer Brokers th' I' I
ffi' ' , elT lCensees, emp oy-
ees, 0 cers or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. lbis Agreement contains the
whole agreement betw~en Seller and Buyer, ~d there are no. other terms, obligations, covenants, representations, statements or conditions, oral
or otherwJse, of any kind whatsoever concernmg this sale. This Agreement will not be altered, amended, changed or modified except in writ'
executed by the parties. mg
(B) ~nless otherwise stDte~ in this Agreement, Buyer has inspected the Property (including flXturcs and any personal property specifically
listed herein) before signing this Agreement or has waived the right to do so, and agrees to purchase the Property IN ITS PRESENT
~O~mON. Bu~er acknowledges that Brokers, their licensees, employees, officers or partners have not made an Independent exam-
matton or determmatlon of the structural soundness of the Property, the age or condition of the components, environmental conditions,
the pennltted uses or of conditions existing in the locale where the Property is situated; nor have they made a mechanical inspection of
any of the systems contained therein.
(C) Any repairs required by this Agreement will be completed in a workmanlike manner.
(D) Broker{s) have provided or may provide services to assist unrepresented parties in complying with this Agreement.
29. DEFAULT (9..{)5)
(A) Seller has the option of retaining all sums paid by Buyer, including the deposit monies, should Buyer:
I, Fail to make any additional payments as specified in paragraph 3, OR
2, Furnisb false or incomplete information to Seller, BrokeI{s), or any other party identified in this Agreement concerning Buyer's legal or
financial status, OR
3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement.
(B) Unless otherwise checked in paragraph 29 (C), Seller may elect to retain those sums paid by Buyer, including deposit monies:
I, On account of purchase price, OR
2. As monies to be applied to Seller's damages, OR
3. As liquidated damages for such breach.
(C) 0 SELLER IS LIMITED TO RETAINING SUMS PAID BY BUYER, INCLUDING DEPOSIT MONIES, AS LIQUIDATED DAMAGES.
(D) If Seller retains all sums paid by Buyer, including deposit monies, as liquidated damages pursuant to paragraph 29 (B) or (e), Buyer and Seller
are released from further liahility or obligation and this Agreement is VOID.
30. TERMINATION & RETURN OF DEPOSITS (9"{)S)
(A) Where Buyer terminates this Agreement pursuant to any right granted by this Agreement, all deposit monies paid on account of purchase price
will be returned to Buyer and this Agreement will be VOID. The broker holding the deposit monies may only release the deposit monies aecord-
ing to the terms of a fully executed written agreement between Buyer and Seller and as permitted by the Rules and Regulations of the State Real
Estate Commission.
(B) If there is a dispute over entitlement to deposit monies, a broker is not legally permitted to determine if a breach occwred or which party is enti-
tled to deposit monies, A broker holding the deposit monies is required by the Rules and Regulations of the State Real Estate Commission to
retain the monies in escrow until the dispute is resolved. In the event of litigation over deposit monies, a broker will distribute the monies accord-
ing to the terms of a final order of court or a written agreement of the parties. Buyer and Seller agree that, if any broker or affiliated licensee is
joined in litigation regarding deposit monies, the attorneys' fees and costs of the brokeI{s) and licensee(s) will be paid by the party joining them.
31. REAL ESTATE RECOVERY FUND (9-O5)
A Real Estate Recovery Fund exists to reimburse any pen;ons who have obtained a final civil judgment against a Pennsylvania real estate licensee
owing to fraud, misrepresentation, or deceit in a real estate transaction and who have been unable to collect the judgment after exhausting all legal
and equitable remedies, For complete details about the Fund, call (7l7) 783-3658 or (800) 822-2113 (within Pennsylvania) and (717) 783-4854 (out-
side Pennsylvania).
32. MEDIATION (9..{)5)
(A) Unless otherwise checked in paragraph 32 (D), Buyer and Seller will submit all disputes or claims that arise from this Agreement to mediation
in accordance with the Rules and Procedures of the Home SellerslHome Buyers Dispute Resolution System Any agreement reached through
mediation and signed by tbe parties will be binding (see Information Regarding Mediation),
(B) Buyer and Seller have received, read, and understand the Rules and Procedures of the Home SellerslHome Buyers Dispute Resolution System.
(C) Any agreement to mediate disputes or claims arising from this Agreement will survive settlement.
(0) 0 MEDIATION IS WAIVED. Buyer and Seller understand that they may choose to mediate at a later date should a dispute or claim arise,
but that there will be no obligation for any party to do so.
33. RESIDENTIAL LEAD-BASED PAINT HAZARD REDUcrION ACT NOTICE (Required for properties buUt before 1978) (9..{)5)
Lead-Based Paint Hazards Disclosure Requirements: The Residential Lead-Based Paint Hazard Reduction Act requires any seller of prop-
erty built before 1978 to provide the buyer with an EPA-approved lead hazards information pamphlet titled Protect Your Family from Lead in
Your Home and to disclose to the buyer and the brokeI{s) the known presence of lead-based paint and/or lead-based paint hazards in or on the
property being sold, along with the basis used for determining that the hazards exist, the location of the hazards, and the condition of painted sur-
faces, Any seller of a pre- I 978 structure must also provide the buyer with any records or reports available to the seller regarding lead-based paint
and/or lead-based paint hazards in or about the property being sold, the common areas, or other residential dwellings in multi-family housing.
Before a buyer is obligated to purchase any housing constructed prior to 1978, the Act requires the seller to give the buyer 10 days (unless buyer
and seller agree in writing to another time period) to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-
based paint hazards, The opportunity to conduct a risk assessment or inspection may be waived by the buyer, in writing, Neither testing nor abate-
ment is required of the seller. Housing built in 1978 or later is not subject to the Act.
~
NOT APPLICABLE. Property was built in 1978 or later,
APPLICABLE. Property was built before 1978. Broker must attach the Lead-Based Paint Hazards Disclosure and Inspection
Contingency Addendum (pAR Fonn LPA) or another acceptable form witb the Infonnadon required by the Act, and provide Buyer
the pamphiet Protect Your Family from Lead in Your Home. Buyer(s) must Initial below tbat they have received both documents:
----. r.u- Lead-Based Paint Hazards DiscloSLrre and Inspection Contingency Addendum (attaehed as part of this Agreement),
~ :S""u'- Protect Your Family from Lead in Your Home
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34. SPECIAL CLAUSES (1..{J2)
(A) The following are part of this Agreement If checked:
o Sale & Settlement of Other Property
Contingency Addendum (PAR Form SSP)
o Sale & Settlement of Other Property Contingency
with Right to Continue Marketing
Addendum (PAR Form SSP-eM)
(B)
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o Settlement of Other Property Contingency Addendum (PAR Form SOP)
o Tenant-Occupied Property Addendum (PAR Form TOP)
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Buyer and Seller acknowledge receipt of a copy of this Agreement at the time of signing.
599 NOTICE TO PARTIES: WHEN SIGNED, TIDS AGREEMENT IS A BINDING CONTRACT. Parties to this transaction are advised to consult
600 an attorney before signing if they desire legal advice.
601
602
Return by facsimile transmission (FAX) of this Agreement, and any addenda and amendments, bearing the signatures of aU parties, constitutes
acceptance by the parties.
I Buyer has received the Consumer Notice as adopted by the State Real Estate Conunissioo at 49 Pa. Code ~35.336.
Buyer has received a statement of Buyer's estimated closing costs before signing this Agreement.
Buyer has read and understands the notices and explanatory Infonnation In this Agreement.
Buyer has received a Seller's Property Disclosure Statement before'signing this Agreement, if required by law (see Information Regarding
) the Real Estate SeUer Disclosure Law).
E2f Buyer has received the Deposit Money Notice (for cooperative sales when Broker for Seller 15 holding deposit money) before signing this
Agreement.
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609
610 BUYER'S MAILING ADDRESS:
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DATE
615
616
617
Seller has received the Consumer Notice as adopted by the State Real Estate Commission at 49 Pa. Code ~35.336.
Seller has received a statement of Seller's estimated closing costs before signing this Agreement.
Seller has read and understands the notices and explanatory Information in this Agreement.
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A1S-R Page 10 of 17
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COMMUNICA nONS WlTH BUYER AND/OR SELLER
Wherever this Agreement contains a provision that requires or allows communication/delivery to a Buyer, that provision shall be satisfied by
communication/delivery to the Broker for Buyer, if any, If there is no Broker for Buyer, those provi5ion5 may be satisfied only by
communication/delivery being made directly to the Buyer, unless otherwise agreed to by the parties.
Wherever this Agreement contains a provision that requires or allows communication/delivery to a Seller, that provision shall be satisfied by
communication/delivery to the Broker for Seller, if any. If there is no Broker for Seller, those provisions may be satisfied only by
communication/delivery being made directly to the Seller, unless otherwise agreed to by the parties.
NOTICE REGARDING CONVICTED SEX OFFENDERS (MEGAN'S LAW)
The Pennsylvania General Assembly has passed legislation (often referred to as "Megan's Law," 42 Pa.C.S. ~ 9791 et. seq.) providing for community
notification of the presence of certain convicted sex offenders, Buyers are encouraged to contact the municipal police department or the
Pennsylvania State Pollee for information reiating to the presence of sex offenders near a particular property, or to check the information OD
the Pennsylvania State Police Web site at www.pamegaDslaw.state.pa.us.
INFORMATION REGARDING REAL ESTATE TAXES (paragraph 3: Terms)
Reai Estate Tax Proration: For purposes of prorating real estate taxes, the "periods covered" by the tax bills are as follows:
Municipal Taxes:
School Taxes:
For all counties and municipalities in Pennsylvania, tax bills are for the period January 1 to December 31.
For all school districts, other than the Philadelphia, Pittsburgh and Scranton sc 'cts, the period covered by the tax
bill is July 1 to June 30. For the Philadelphia, Pittsburgh and Scranton school bills are for the period January I
to December 31.
Real Estate Assessment Notice: In Pennsylvania, taxing authorities (school districts
value of a property at the time of sale, or at any time thereafter. A successful a
property and an increase in property taxes. Also, periodic county-wide rop
result in a change in property tax.
ers may appeal the assessed
a m a higher assessed value for the
e the assessed value of the property and
aragraph 6: Mortgage Contingency)
The appraised value of the Property is used in
market value.
t of the loan and may be different from the purchase price and/or
Buyer Initials
AlS-R Page 11 oft7
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PROPERTY& ENVIRONMENTAL INSPECTION NOTICES (paragraph 11: Property Inspection Contingency)
Flood Plains: If the Property is located in a flood plain, Buyer may be required to carry additional insurance.
Property Boundary / Square Footage: Seller has not had the Property surveyed. Any fences, hedges, walls and other natural or constructed barriers
may or ma~ no.t represent the true bo~ndary lines of the Property, Any numerical representations of square footage of the structure(s) and/or lot size
are app~oxmlatlOns only and .may ?e Inaccurate, If Buyer wishes to verify the Property's boundaries or square footage, Buyer is advised to engage a
profesSIOnal surveyor or obtain an mdependent measurement of the structure(s) and/or lot size.
Water Service: Buyer may elect to have the water service inspected by a professional water/well testing company. In addition, on-site water service
systems may have to meet certain quality and/or quantity requirements set by the municipality or the mortgage lender.
Wood-Destroying Insect Infestation: Insects whose primary source of food is wood, such as tennites, wood-boring beetles, carpenter ants, carpenter
bees and certain other insects, can cause damage to the wood structure of a residence. Tennite and Pest Control companies are available to inspect to
determine whether wood-destroying insects are present. Because of the way these insects function, damage to wood may be hidden. Careful selection
should be made of skilled experts in the termite/pest control field to insure proper determination of whether wood-boring insects or resultant damage is
present.
Exterior Insulation and Flnisb Systems (EIFS): Exterior Insulation and Finish Systems--som
multi-layered wall systems applied to the exterior of some homes. Poor or improper installation of S
of a structure where it may cause damage to the building's frame, Leakage most freque
connection and at the lowermost edge of the exterior smface, Vulnerability to leakage
application skills of the contractor. Damage caused by water intrusion may be bo
absence of an adequate inspection. Buyers purchasing homes with EIFS cons
EIFS-related problems who can determine the moisture content of the building'
ed to as synthetic stucco--are
oisture penetrating the surface
windows, gutters, the roof
as well as the expertise and
but may go undetected in the
pector experienced in testing for
Asbestos: The heat-resistant and durable nature of asbestos m
heat and decay are linked with several adverse health efti
long periods of time. When inhaled, these fibers eas'
Inquiries or requests for more information abou
Pennsylvania Ave" N.W., Washington, D.C.
Health, Harrisburg, P A 17120.
e p ysical properties that give asbestos its resistance to
microscopic fibers that remain suspended in the air for
IS known to cause Asbestosis and various forms of cancer.
.S. Environmental Protection Agency, Ariel Rios Building, 1200
Health, Commonwealth of Pennsylvania, Division of Environmental
Electromagnetic Fields: Elec
health risks does not exist at pres
around all electrical appliances and power lines. Conclusive evidence that EMFs pose
o laws regarding this issue.
Environmental Hazards: The U.S. onmental Protection Agency has a list of hazardous substances, the use and disposal of which are restricted
by law. Generally, if hazardous subs s are found on a property, it is the property owner's responsibility to dispose of them properly. For more
information and a list of hazardous substances, contact the u.s. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Ave.,
N.W., Washington, D.C. 20460, (202) 260-2090.
Wetlands: Wetlands arc protected by the federal and state governments. Buyer may wish to hire an environmental engineer to investigate whether the
Property is located in a wetlands area to detennine if pcnnits for plans to build, improve or develop the property would be affected or denied because
of its location in a wetlands area
Mold, Fungi and Indoor Air Quality: Indoor mold contamination and the inhalation ofbioaerosols (bacteria, mold spores, pollen and viruses) have
been associated with allergic responses including upper respiratory congestion, cough, mucous membrane initation, fever, chills, muscle acb? or o~er
transient inflammation or allergy, Claims have been asserted that exposure to mold contamination and bioaeroso\s has led to serious mfectJon,
immunosuppression and illnesses of neuro or systemic toxicity. Sampling of indoor air quality and other methods exist to detennine the pr~ence and
scope of indoor contamination. Because individuals may be affected differently, or not affected at all, by the presence of mold or other blOaerosols,
Buyer may wish to engage the services of a qualified professional to undertake an assessment and/or sampling of the Pr~perty, Assess~ents ~d
samplings for the presence of mold and bioaerosols can be performed by qualified industrial hygienists, engineers~ laboratones and ~ome mspectJon
companies that offer these services, Information about indoor air quality issues is available through the U.S. EnVlTonmental ProtectJon Agency and
may be obtained by contacting IAQ INFO, P.O. Box 37133, Washington, D.C. 20013-7133,1-800-438-4318.
Buyer Initials
AlS-R Page 12 of 17
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INFORMATION REGARDING THE HOME INSPECTION LAW 68 Pa. C.S.A. ~7501, et. seq.
(paragraph 11: Property Inspection Contingency)
A~plicabili~: The Horne Inspection Law applies to "residential real estate transfers," defined as a sale, exchange, installment sales contract, lease
WIth an option to buy, grant or other transfer of an interest in real property where NOT LESS THAN ONE AND NOT MORE THAN FOUR
RESIDENTIAL DWELLING UNITS are involved, (See Information Regarding The Real Estate Seller Disclosure Law (exceptions I -8) for a list of
exceptions to this general rule,)
The following definitions are taken from the text of the Home Inspection Law
Home Inspection: A noninvasive, visual examination of some combination of the mechanical, electrical or plumbing systems or the structural and
essential components of a residential dwelling designed to identify material defects in those systems and components, and performed for a fee in
connection with or preparation for a proposed or possible residential real estate transfer. The term also includes any consultation regarding the property
that is represented to be a home inspection or that is described by any confusingly similar term. The term does not include an examination of a single
system or component of a residential dwelling such as, for example, its electrical or plumbing system or its roof. The term also does not include an
examination that is limited to inspection for, or of, one or more of the following: wood-destroying insects, underground tanks and wells, septic
systems, swimming pools and spas, alann systems, air and water quality, tennis courts and playground equipment, pollutants, toxic chemicals and
envirorunental hazards. The scope of a home inspection, the services to be performed and the systems and co. ,. ns to be inspected or excluded from
inspection may be defined by a contract between the home inspector and the client.
dation that certain experts be retained to
rial defect" that poses an unreasonable risk to
Home inspection report: A written report on the results of a home inspection.
A home inspection report shall include:
(1) A description of the scope of the inspection, including without limitati
covered by the report.
(2) A description of any material defects noted during the ins
determine the extent of the defects and any corrective
people on the property shall be conspicuously identi
A home inspector shall not express either orally 0
such an estimate may be included in a home ins
(I) the report identifies the source of the
(2) the estimate is stated as a range
(3) the report states that th . s
st to repair any defect found during a home inspection., except that
pg an estimate from a contractor who performs the type of repair involved.
Seller shall have the right, upon r
charge a copy of any inspection report from the party for whom it was prepared,
Home inspector: An individual wh
National home inspectors association: Any national association of home inspectors that:
(I) Is operated on a not-for-profit basis and is not operated as a franchise.
(2) Has members in more than ten states.
(3) Requires that a person may not become a fulJ member unless the person has performed or participated in more than 100 borne inspections and
has passed a recognized or accredited examination testing knowledge of the proper procedures for conducting a borne inspection.
(4) Requires that its members comply with a code of conduct and attend continuing professional education classes as an ongoing condition of
membership.
A buyer shall be entitled to rely in good faith, without independent investigation, on a written representation by a home inspector that the home
inspector is a full member in good standing of a national home inspection association.
Material defect: A problem with a residential real property or any portion of it that would have a significant adverse impact on the value of the
property or that involves an unreasonable risk to people on the property. The fact that a structural element, system or subsystem is near, at or beyond
the end of the nonnal useful life of such a structural element, system or subsystem is not by itself a material defect.
INFORMA nON REGARDING RADON (paragraph 13: Status of Radon)
Radon is a natural, radioactive gas that is produced in the ground by the normal decay of uranium and radium. Stu.dies indicate that extended exposure
to high levels of radon gas can increase the risk of lung cancer, Radon can fmd its way into any air-space, includmg basements and ("T8wl spa~es and
can permeate a structure. The U.S. Envirorunental Protection Agency (EP A) advises cOITecti~e action if the annual ave:age exposure .to ~adon IS at or
exceeds 0,02 working levels or 4 picoCuriesfliter (4pCiIL), If 8 house has a radon problem, It usually can be cured by mcreased ventilation and/or by
preventing radon entry. Any person who tests, mitigates or safeguards a building for radon in Pennsylvania must be certified by the Dep.artment of
Envirorunental Protection, Information about radon and about certified testing or mitigation firms is available through Department of EnVU"onmental
Protection, Bureau of Radiation Protection, 13th Floor, Rachel Carson State Office Building, P.O, Box 8469, Harrisburg, PA 17105-8469, (800)
23RADON or (717) 783-3594,
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Buyer Initials
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SEWAGE NOTICES (paragraph 15: Status of Sewer)
NOTICES PURSUANT TO THE PENNSYL V ANlA SEWAGE FACILITIES ACT
NOTICE 1: THERE IS NO CURRENTLV EXISTING COMMUNITY SEWAGE SYSTEM AVAILABLE FOR THE SUBJECT
PROPERTY.
Section 7 of the Pennsylvania Sewage Facilities Act provides that no person shall install, construct, request bid proposals for
construction, alter, repair or occupy any building or structure for which an individual sewage system is to be installed, without first
obtaining a pennit. Buyer is advised by this notice that, before signing this Agreement, Buyer should contact the local agency charged
with administering the Act to detennine the procedure and requirements for obtaining a pennit for an individual sewage system, The
local agency charged with administering the Act will be the municipality where the Property is located or that municipality working
cooperatively with others.
NOTICE 2: TillS PROPERTY IS SERVICED BY AN INDIVIDUAL SEWAGE SYSTEM INSTALLED UNDER THE TEN-ACRE
PERMIT EXEMPTION PROVISIONS OF SECTION 7 OF THE PENNSYLVANIA SEWAGE FACILITIES ACT.
(Section 7 provides that a pennit may not be required before installing, constructing, awarding a contract for construction, altering,
repairing or connecting to an individual sewage system where a ten-acre parcel or lot is subdivided from a parent tract after January 10,
1987). Buyer is advised that soils and site testing were not conducted and that, should the system malfunction, the owner of the Property
or properties serviced by the system at the time of a malfunction may be held liable for an tarnination, pollution, public health
hazard or nuisance which occurs as a result.
TO WlDCH SEWAGE IS
UCTED TO FACILITATE
Sewage Facilities Act, Seller
ecember 14, 1995, whichever is
NOTICE 3: THIS PROPERTY IS SERVICED BY A HOLDING TANK (pERMANE
CONVEYED BY A WATER CARRYING SYSTEM AND WHICH IS
ULTIMATE DISPOSAL OF THE SEWAGE AT ANOTHER SITE. P
must provide a history of the annual cost of maintaining the d
later.
NOTICE 4: AN INDIVIDUAL SEWAGE SYSTEM HAS BE
LESS THAN THE DISTANCE SPECIFIE
horizontal isolation distances provide guid
an individual water supply or wate
the horizontal isolation distance
absorption area shall be 100 feet
o ION DISTANCE FROM A WELL THAT IS
lations at 25 Pa Code ~73.13 pertaining to minimum
es that the minimum horizontal isolation distance between
treattnent tanks shall be 50 feet. Subsection (c) of ~73.13 states that
pply or water supply system suction line and the perimeter of the
NOTICE 5: TillS LOT IS
LIMITATION
STRUCTURE T
A MAJOR P
REGULA TIONS P
PERMIT LIMITATIONS ARE IN EFFECT AND IS SUBJECT TO THOSE
ARE NOT AVAILABLE FOR THIS LOT AND CONSTRUCTION OF A
AGE FACILITIES MAY NOT BEGIN UNTIL THE MUNICIPALITY COMPLETES
MENT PURSUANT TO THE PENNSYLVANIA SEWAGE FACILITIES ACT AND
ED THEREUNDER
Buyer Initials
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INFORMATION REGARDING RECREATIONAL CABINS (paragraph 19: Title, Surveys & Costs)
The following definitions and requirements are taken from tbe Pennsylvania Construction Code Act (35 P.S. ~7210.101 et. seq.)
A Recreational Cabin is a structure whicb is:
(I) Utilized principally for recreational activity;
(2) Not utilized as a domicile or residence for any individual for any time period;
(3) Not utilized for commercial purposes;
(4) Not greater than two stories in height, excluding basement;
(5) Not utilized by the owner or any other person as a place of employment;
(6) Not a mailing address for bills and correspondence; and
(7) Not listed as an individual's place of residence on a tax return, driver's license, car registration or voter registration.
A recreational cabin may be exempt from the provisions of tbe Pennsylvania Construction Code Act if:
(I) The cabin is equipped with at least one smoke detector, one fIre extinguisher and one carbon monoxide detector in both the kitchen and
sleeping quarters; and
(2) The owner of the cabin files with the municipality either:
(a) An affidavit on a form prescribed by the Pennsylvania Department of Labor and Industry attesting to the fact that the cabin meets the
definition of a "recreational cabin" in Section 103 of the Act; or
(b) A valid proof of insurance for the recreational cabin, written and issued by an insurer autho .
stating that the structure meets the definition of a "recreational cabin" as defined in Sectio
INFORMATION REGARD
(paragraph 20: Condomini
o business in this Commonwealth,
Act.
If a recreational cabin is subject to exclusion from the Pennsylvania Construction Co
cabin, written notice must be provided in the sales agreement and the deed that the re
( I ) Is exempt from this Act;
(2) May not be in conformance with the unifonn construction code; and
(3) Is not subject to municipal regulation,
Failure to comply with this notice requirement shall render the sale v
ership of the recreational
LANNED COMMUNITIES
o eowner Association) Resale Notice)
The Uniform Condominium Act defme
which is designated for common owner
the common elements are veste
finitio
aI es rtions of which are designated for separate ownership and the remainder of
s of those portions, Real estate is not a condominium unless the undivided interests in
Definition of a Planned Community
The Uniform Planned Community "planned community" as real estate with respect to which a person, by virtue of ownership of an
interest in any portion of the real e , or may become obligated by covenant, easement or agreement imposed on the owner's interest to pay any
amount for real property taxes, insuran e, maintenance, repair, improvement, management, administration or regulation of any part of the real estate
other than the portion or interest owned solely by the person. The term excludes a cooperative and a condominium, but a cooperative or condominium
may be part of a planned community. For the purposes of this definition, "ownership" includes holding a leasehold interest of more than 20 years,
including renewal options, in real estate. The term includes non-residential campground communities.
Exemptions from the Uniform Planned Community Act and the Uniform Condominium Act:
When a Certificate of Resale Is Not Required
The owner of a property located within a planned community is not required to furnish the buyer with a certificate of resale under the following
circumstances:
(I) The Planned Community/Condominium contains no more than 12 units, provided there is no possibility of adding real estate or subdividing
units to increase the size of the planned community or condominium.
(2) The Planned Community/Condominium is one in which all of the units are restricted exclusively to non-residential use, unless the
declaration provides that the resale provisions are nevertheless to be followed.
(3) The Planned Community/Condominium or units are located outside the Commonwealth of Pennsylvania
(4) The transfer of the unit is a gratuitous transfer.
(5) The transfer of the unit is required by court order.
(6) The transfer of the unit is by the government or a governmental agency.
(7) The transfer of the unit is the result of foreclosure or in lieu of foreclosure.
Notices Regarding Public Offering Statements and Right to Rescission
If Seller is a Declarant of the condominium or planned community, Seller is required to furnish Buyer with a copy of the Public Offering Statement
and its amendments. For condominiums, the delivery of the Public Offering Statement must be made no later than the date the buyer executes this
Agreement, Buyer may cancel this Agreement within 15 days after receiving the Public Offering Statement and any amendments that materially and
adversely affect Buyer. For planned communities, the Declarant must provide the Buyer with a copy of the Public Offering Statement and its
amendments no later than the date the Buyer executes this Agreement. Buyer may cancel this Agreement within 7 days after receiving }pe Public
Offering Statement and any amendments that materially and adversely affect Buyer. J;:...---/.... ,
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Buyer Initials z,\........ A1S-R Page 15 of 17 Seller Initials :,/-
Revised 9/05
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rtytyyert,zfx
LEAD WARNING STATEMENT (FOR PROPERTIES BUILT BEFORE 1978)
(paragraph 33: Residential Lead-Based Paint Hazard Reduction Act Notice)
Every purchaser of any interest in residential real property on which a residential dwelling was built prior to 1978 is notified that such property may
present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children
may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired
memory. Lead poisoning also poses a particular risk to pregnant women. The seller of any interest in residential real property is required to provide the
buyer with any information on lead-based paint hazards from risk assessments or inspections in the seller's possession and notify the buyer of any
known lead-based paint hazards. A risk assessment or inspection for possible lead-based paint hazards is recommended prior to purchase.
INFORMATION REGARDING THE REAL ESTATE SELLER DISCLOSURE LAW
(page 10: Signature Page)
The Real Estate Seller Disclosure Law requires that before an agreement of sale is signed, the seller in a residential real estate transfer must make
certain disclosures regarding the property to potential buyers in a form defined by the law. A residential real estate transfer is defined as a sale,
exchange, installment sales contract, lease with an option to buy, grant or other transfer of an interest in real property where NOT LESS THAN ONE
AND NOT MORE THAN FOUR RESIDENTIAL DWELLING UNITS are involved.
The Law defines a number of exceptions where the disclosures do not have to be made:
1. Transfers that are the result of a court order.
2. Transfers to a mortgage lender that result from a buyer's default and subsequent forec\osur
3. Transfers from a co-owner to one or more other co-owners.
4. Transfers made to a spouse or direct descendant.
5. Transfers between spouses that result from divorce, legal separation or pro e
6. Transfers by a corporation, partnership or other association to its
liquidation.
7. Transfer of a property to be demolished or converted to non-r
8. Transfer of unimproved real property.
9. Transfers by a fiduciary during the administration
10. Transfers of new construction that has never been
a The buyer has received a one-year n;
b. The building has been inspected . e building code or, if none, a nationally recognized model building
code; and
c. A certificate of occupan ce has been issued for the dwelling.
In addition to these exceptions
common areas or facilities are no
interests.
and cooperatives are limited to the seller's particular unit(s). Disclosures regarding
nts are already addressed in the laws that govern the resale of condominium and cooperative
Buyer Initials
AlS-R Page 16 of 17
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Seller Initials
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INFORMATION REGARDING MEDIATION (paragraph 32: Mediation)
DISPUTE RESOLUTION SYSTEM RULES AND PROCEDURES
1.
Agr~ement of Parties The. Rules and Procedures of the Dispute Resolution System (DRS) apply when the parties have agreed in writing to
medIate under DRS. Th~ wntten agreement can be achieved by a standard clause in an agreement of sale, an addendum to an agreement of sale,
or through a separate wntten agreement.
Initiation of.Mediation If a di~pute exists, any party rnay start the mediation process by submitting a completed Request to Initiate Mediation
DRS Transmittal Form (TranSDUttal Form) to the local Association of REALTORS@ (hereafter "Administrator"). The Transmittal Form should
be available througb the Administrator's office. The initiating party should try to include the following information when sending the completed
Transmittal Form to the Administrator:
a A copy of the written agreement to mediate if there is one, OR a request by the initiating party to have the Administrator contact the
other parties to the dispute to invite them to join the mediation process.
b. The names, addresses and telephone numbers of the parties involved in the dispute, including the name of every insurance company
known to have received notice of the dispute or claim and the corresponding file or claim number.
c. A brief statement of the facts of the dispute and the damages or relief sought.
Selection of Mediator Within five days of receiving the completed Transmittal Form, the Administrator will send each party to the dispute a
copy of the Transmittal Form and a list of qualified mediators and their fee schedules. Each party then has ten days to review the list of
mediators, cross off the name of any mediator to whom the party objects, and return the list to the A' or. The Administrator will appoint
the first available mediator who is acceptable to all parties involved.
2.
3.
6.
Conduct of Mediation Conference The p
a Have the authority to enter into
b. Produce all information r e
materials, descriptions 0 e
an,d information .
The mediator presiding ov
a Will impartially con
b. Will help the parties
c. Will have no authority
as mediator to that dispute,
4.
A mediator who has any financial or personal interest in the dispute or the results of
unless all parties are informed and give their written consent
Mediation Fees Mediation fees will be divided equally among the parti
follow the payment terms contained in the mediator's fee schedule.
Time and Place of Mediation Conference Within ten days
date, time and place of the mediation conference. The cd
conference should not be more than sixty days from
Ion conference. The parties will
5.
i e mediator will contact the parties and set the
ty cays' advance notice to all parties. The mediation
Ispute.
diatio
t to dispute.
d the issues of the dispute. The information may include relevant written
nt of eir testimony. The mediator can require the parties to deliver written materials
conference.
settlement negotiation.
tters in dispute and reach a mutually agreeable solution.
nder an opinion, to bind the parties to his or her decision, or to force the parties to reach a settlement.
Formal rules of evidence will not apply to the mediation conference.
7. Representation by Counsel Any party who intends to be accompanied to the mediation conference by legal counsel will notify the mediator
and the other parties of the intent at least ten days before the conference.
8. Confidentiality No aspect of the mediation can be relied upon or introduced as evidence in any arbitration, judicial or other proceeding. TIris
includes, but is not limited to, any opinions or suggestions made by any party regarding a possible settlement; any admissions made during the
course of the mediation; any proposals or opinions expressed by the mediator; and any responses given by any party to opinions, suggestions, or
proposals.
No privilege will be affected by disclosures made in the course of the mediation.
Transcripts or recordings of the mediation will not be allowed without the prior, written consent of all parties and the mediator.
Records, reports, and other documents received or prepared by the mediator or Administrator cannot be compelled by an arbitration, judicial, or
other proceeding, with the exception of an agreement that was reached in the course of mediation and signed by all the parties.
Neither the mediator nor the Administrator can be compelled to testify in any proceeding regarding information given or representations made
either in the course of the mediation or in any confidential communication.
9. Mediated Settlement When a dispute is resolved through mediation, the mediator will put the complete agreement in writing and all parties will
sign the written agreement within ten days of the conclusion of the mediation conference. Every reasonable effort will be made to sign the
written agreement at the end of the conference.
10. Judicial Proceedings and immunity NEITHER THEADMINlSTRATOR, THE MEDIATOR, THE NATIONAL ASSOCIATION OF REALTORS@, THE
PENNSYLVANIA AsSOCIATION OF REALTORS@, NOR ANY OF ITS MEMBER BOARDS, Wll..L BE DEEMED NECESSARY OR INDISPENSABLE PARTIES IN ANY
JUDICIAL PROCEEDINGS RELATING TO MEDIATION UNDER THESE RULES AND PROCEDURES. NOR WIlL ANY OF 1lffiM SERVING UNDER THESE PROCEDURES
BE LIABLE TO ANY PARTY FOR ANY ACT, ERROR OR OMISSION IN CONNECTION WITH ANY SERVICE OR TIlE OPERATION OF TIlE HOME )J.ERS/HOME
BUYERS DISP~OLlJTION SYSTEM. _</". _
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Buyer Initials "- AlS-R Page 17 of 17 Seller Initials. ./' t.. ~
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RESIDENTIAL LEAD-BASED PAINT HAZARDS DISCLOSURE AND INSPECTION CONTINGENCY LP A
ADDENDUM TO AGREEMENT OF SALE
Lead Warning Statement
Every purchaser of any interest in residential real property on which a residential
dwelling was built prior to 1978 is notified that such property may present exposure
to lead from lead-based paint that may place young children at risk of developing
lead poisoning. Lead poisoning in young children may produce permanent
neurological damage, including learning disabilities, reduced intelligence quotient,
behavioral problems, and impaired memory. Lead poisoning also poses a particular
risk to pregnant women. The seller of any interest in residential real property is
required to provide the buyer with any information on lead-based paint hazards
from risk assessments or inspections in the seller's possession and notify the buyer
of any known lead-based paint hazards. A risk assessment or inspection for possible
lead-based paint hazards is recommended prior to purchase.
LEAD-BASED ~AINT HAZARDS DISCLOSURE AND INSPECTION CONTINGENCY ON PA~E TW:;::;~J
Buyer Initials: @ LPA Page 1 of2 Seller IDlti~l~ -
COPYRIGHT PENNSYLVANIA ASSOCIATION OF REALTORS~2005
9/05
m... Pennaylvl!nla Aaaoclatlon of
La REALTORS~
REAJ.1ORe n.. ,,!tic. for ..... E."''' In ..nn..~anl.
Straub and Associates Real Estate Group 157 S 32nd Street, Camp Hill P A 17011
Phonc: 7176129653 Fax: 7] 76]29654 Straub and Associates
Produced with ZlpFonn'" by RE FonnsNet, LLC 18025 Fifteen Mile Road, Clinton Township, Michigan 48035 W\WI.zIDfonn.com
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BUYER S. (0 II :::.1--0 uJ
DATE OF AGREEMENT ,9 - i /- r..~ r) n if
'pROPEf{TY
SELLER
1. SELLER'S DISCLOSURE SeUer bas no knowledge concerning the presence of lead-based paint and/or lead-based paint hazards in or about
the Property, unless checked below.
o Seller has knowledge of the presence of lead-based paint and/or lead-based paint hazards in or about the Property. (Provide the basis for
determining that lead-based paint and/or hazards exist, the location(s), the condition of the painted surfaces, and other available information
concerning Seller's knowledge of the presence of lead-based paint and/or lead-based paint hazards.)
2. SELLER'S RECORDSIREPORTS Seller has no records or reports pertaining to lead-based paint and/or lead-based paint hazards in or about
the: Property, unless cbecked below.
o Seller has provided Buyer with all available records and reports regarding lead-based paint and/or lead-based paint hazards in or about the
Property. (List documents):
3. BUYER'S ACKNOWLEDGMENT Buyer has received the pamphlet Protect Your Family from Lead in Your Home and has read the Lead
Warning Statement on the front of this form. Buyer has reviewed Seller's disclosure of known lead-based paint and/or lead-based paint hazards
in paragraph I and has received the records and reports regarding lead-based paint and/or lead-based paint hazards identified in paragraph 2.
4. LEAD-BASED PAINT ASSESSMENT/INSPECTION CONTINGENCY
Buyer acknowledges that before Buyer is obligated to buy a residential dwelling built before 1978, Buyer has I 0 DAYS (unless otherwise
~tiated) to conduct a risk assessment and/or inspection of the Property for the presence of lead-based paint and/or lead-based paint hazards.
~ WAIVED. Buyer understands that Buyer has the right to conduct a risk assessment and/or inspection of the Property to determine the
presence of lead-based paint and/or lead-based paint hazards. BUYER W AJVES TIllS RIGHT and agrees to the terms of the RELEASE
paragraph of this Agreement.
o ELECTED. Contingency Period: 10 days from the Execution Date of this Agreement
(A) Within the Contingency Period, Buyer, at Buyer's expense, may choose to obtain a risk assessment and/or inspection of the
Property for lead-based paint and/or lead-based paint hazards.
(B) Within the Contingency Period, Buyer may deliver to Seller a written list of the specific hazardous conditions cited in the report and
those corrections requested by Buyer, along with a copy of the risk assessment and/or inspection report.
(C) Seller may, within 7 DAYS of receiving the list and report(s), submit a Written Corrective Proposal ("Proposal") to Buyer. The
Proposal will include, but not be limited to, the corrections to be performed, the name of the remediation company and a projected
completion date for corrective measures. Seller will provide certification from a risk assessor or inspector that corrective measures
have been satisfactorily completed on or before the projected completion date.
(D) If Seller submits a Proposal, Buyer will, within 5 DAYS:
1. Accept the Proposal and the Property in writing, and agree to the terms of the RELEASE paragraph of this Agreement, OR
2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of the
TERMINA nON & RETURN OF DEPOSITS paragraph of this Agreement
(E) If Seller does not submit a Proposal within the time set forth in paragraph (C) above, Buyer will, within ~ DAYS:
1. Accept the Property in writing, with the information stated in the report(s) and agree to the terms of the RELEASE paragraph of
this Agreement, OR
2. Terminate this Agreement by written notice to Seller, with all deposit monies returned to Buyer according to the terms of the
TERMINATION & RETURN OF DEPOSITS paragraph of this Agreement
If Buyer fails to e~ercise any of Buyer's options or to terminate tbis Agreement within any of the time perIods stated in this
paragraph, Buyer will accept the Property and agree to the terms of tbe RELEASE paragraph of this Agreement.
5. BROKERS'ILICENSEES' CERTIFICATIONS The undersigned Licensees involved in this transaction, on behalf of themselves and their
brokers, certify that their statements are true to the best of their knowledge and belief. The Licensees involved in this transaction have inform~
Seller of Seller's obligations under the Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.c. ~4852(d), and are aware of therr
responsibility to ensure compliance.
6. BUYER/SELLER CERTIFICATION By signing this Addendum, Buyer and Seller certify the accuracy of their respective statements, to the
best of their ~?wledge. ~ ;
WITNESS (1?Ax...-,,'; i1,,"-J.H, BUYER ~~ DATE ~- \ \ 'Ob
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WITNESS
BUYER
WITNESS
C"WITNESS-
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WITNESS. _
WITNESS
SELLER
BROKER FOR SELLER (Compan~~ID~)
ACCEPTED BY <:. ---.-------
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BROKER FOR BUYER (~mpany Na.tpe) -S.-,..1<. A JJ\ f
ACCEPTED BY ~'/ Q) u..J-L-
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LPA Page 2 of2
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DATE
DATE
DATE
DATE
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PRE-SETTLEMENT WALK-THROUGH INSPECTION
This form recommended and approved fOI'. IJut not restricted to. use by members of the Greaiel' Harrisburg ASSOCiation 01
REAL TORS')'
DATE OF SALES AGREEMENT _ .---~--------- - - -----.10---------
RE: PROPERTy~__~m_ig;;:Lu~-~A ~~rLv C. - _dlVi)1')~1O-1'-c_ J --~j
SELLER(S): __ ______ ________ .___________ ___u___ BUyER(S):______
The undersigned Buyer(s) have completely inspected the above-captioned property on
_______..__________,20_______, accompanied by__~_________________and have determined
to their satisfaction that the property was in substantially the same condition as it was at the time of execution of
the Agreement of Sale.
The Buyer(s) acknowledge that all non-real estate extras as outlined in the Agreement of Sale were on the
premises at the time of inspection and all fixtures were in place and functioning
The following items were noted as NOT being in satisfactory condition but were accepted in "AS IS" condition.
(Indicate if "NONE".) The Buyer(s) have received copies of all required certifications and inspections and
understand that non warranties are included unless specifically indicated on the wri1ten report. All terms and
conditions in the Agreement of Sale have been satisfactorily met._____________ ___________
The following items were noted as NOT being in satisfactory condition and NOT ACCEPTED by Buyer(s)
Agreement for resolution is as follows:
In the case of an FHA insured or VA guaranteed purchase, this certification shall neither supersede nor supplant
the requisite pre-settlement inspection certification but shall supplement same.
Buyer(s) warrants that they are not relying upon any representation made by Seller, Agent or Broker, and hereby
releases, quit claims, and forever discharges, Seller(s), Seller(s)' Agents, Subagents, employees, and any officer
or partner or anyone of them and any other person, firm, or corporation, who may be liable by or through them,
from any and all claims, losses, or demands, including personal injuries, and all of the consequences thereof,
where now known or not, which may arise due to the condition of the subject property.
Witness:
Witness:
Buyer:
_ Buyer:_
Date:
Date:
Seller(s) have been advised of the results of Buyer(s) inspection and agree to exceptions or resolutions
noted herein.
Witness:
Witness:
Seller:
Seller:
Date:
Date:
INSPECTION WAIVER
Complete this section ONLY if inspection is waived by the Buyer(s)
I (We), the undersigned Buyer(s) of the above captioned property. have been advised of our right to a pre-settlement inspection We hereby
decline and waive our right to such Inspection and the benefits thereof and hereby release, quit claim. and forever discharge. Seller(s).
Seller(s)' Agents, Subagents, employees, and any officer or partner or anyone of them and any other person, firm, or corporallon. who may
be liable by or through them, from an demands, including personal inJunes. and all of the consquences thereof,
where now known or not, which may he subJect propeJ;ly\ .
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BU\ier:__~i23;'V'.-o-.C~~-__-Date:-J-~iu-- (>-~
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Buver:__~_________ ________ ~___Date:_________
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Witness:
VERIFICATION
I, TIMOTHY STRAUB, hereby verify and state that the facts set forth in the
foregoing document are true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904
DATE:
2~)7
relating to unsworn verification to authorities.
VERIFICATION
I, MARISA A. STRAUB, hereby verify and state that the facts set forth in the
foregoing document are true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904
relating to unsworn verification to authorities.
DATE:
~~ /07
, ,
~a~
MARISA A. STRAUB
VERIFICATION
I, CALVIN WILLIAMS, III, hereby verify and state that the facts set forth in the
foregoing document are true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904
relating to unsworn verification to authorities.
/, utI ~
~ ~Al\fS, III
J/ f /07
, .
DATE:
..
VERIFICATION
I, AMY W. WILLIAMS, hereby verify and state that the facts set forth in the
foregoing document are true and correct to the best of my information, knowledge and belief. I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904
relating to unsworn verification to authorities.
DATE:
2/;/07
.
~~~tJlL\J1~
AMY w( WILLIAMS
CERTIFICATE OF SERVICE
AND NOW, this ~ day of Ie b'lV """7,2007, I hereby certify that I have
served a copy of the within document on the following by depositing a true and correct copy of
the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, P A 17043
CALDWELL & KEARNS
06698-001/110841
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SCOTT A. MARLOW,
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUN1Y, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
TIMOTHY STRAUB and MARISA A.
STRAUB, his wife, CALVIN WILLIAMS,
III. and AMY W. Will LAMS, his wife
Defendants
NO.
TERM
2006-6548 CIVIL
JURY TRIAL DEMANDED
REPLY TO NEW MATTER
AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and
makes the following Reply to Defendants' New Matter in this action:
15. No answer required. To the extent that a factual response is required,
Plaintiff incorporates herein, by reference, the averments set out in his Complaint.
16. No answer required because these statements present a conclusion of taw
and not an averment of fact.
17. No answer required because these statements present only a conclusion of
law and not an averment of fact. To the extent that a factual answer is required, Plaintiff
denies these averments and states that, to the contrary. the express provisions of the
agreement of sale, which referred to and incorporate a disclosure statement, entirely
support Plaintiff's claim.
18. The answer to Paragraph 17 above is incorporated herein by reference.
19. Denied for the reasons set forth in the Answer to Paragraph 17 above.
20. Denied for the reasons set forth in the Answer to Paragraph 17 above. By
way of further answer, Plaintiff states that he is entitled, by law and common sense, to
rely upon specific representations made by the Defendants. Moreover, Plaintiff believed
that the property would be inspected by a representative of or an inspector designated by
the Veterans Administration because he was purchasing the property with a VA loan.
The Defendants led him to believe that the property would be inspected by a VA
inspector.
21. Admitted. Plaintiff states, however, that he is not required to mediate the
dispute because of the Defendants' fraud and misrepresentation which entitles Plaintiff to
rescind the agreement in its entirety.
22. Plaintiff admits that he waived the right to have the property inspected but
states that he did so in reliance upon the clear representations made to him by
II
Defendants, some of which were set out in the Seller's Disclosure Statement which is the
part of the agreement of sale. In addition, Plaintiff believed the property would be
inspected by a VA inspector because he was financing the purchase with a VA mortgage.
23. Admitted. By way of further answer, Plaintiff states that he accepted the
representations of the Defendants as to the condition of the property in agreeing to
purchase it in that condition. In addition, Plaintiff believed the property would be
inspected as part of the VA mortgage.
24. Admitted. The averments set forth in Paragraphs 22 and 23 above are
incorporated herein by reference.
25. No answer required because this Paragraph only presents a conclusion of law
and not an averment of fact. Moreover, Plaintiff's claim is not based upon negligence but
upon the intentional tort of fraud and misrepresentation and, as a result, comparative
negligence is not involved in this case.
26. No answer required because Paragraph 26 contains only a conclusion of law
and not an averment of fact.
27. No answer required because Paragraph 27 contains only a conclusion of law
and not an averment of fact.
28. It is admitted that Defendants hired contractors to return to the property but
deny that those contractors made effective repairs or otherwise corrected the serious
problems with the property which the Defendants had misrepresented to Plaintiff.
29. The statements set out on the seller's disclosure statement are admitted but
speak for themselves.
30. Plaintiff denies that Defendants made reasonable, fair, or good faith disclosure
of the problems with the property.
31. No answer required because this paragraph presents only conclusions of law
and no averments of fact.
32. Denied. The problems with the property existed prior to Plaintiff's purchase of
the property and Plaintiff believes those difficulties were known to Defendants who failed
to disclose them to Plaintiff. As a result, Defendants had a legal obligation to make those
conditions known to Plaintiff and to accurately and truthfully complete the disclosure
statement they signed as part of the agreement of sale.
33. Admitted in part and denied in part. It is admitted that Plaintiff was advised
by one contractor that part of the problem resulted from defective siding. It is denied,
however, that all of the problems were created by incorrectly installed siding.
II
..I.
34. Denied. At this point, Plaintiff does not know what work Defendants or their
agents did on the property because that information is still within the exclusive control of
the Defendants and so Plaintiff denies these averments and demands proof thereof at trial.
35. Denied for the reasons set forth in Paragraph 34 above. By way of further
answer, Plaintiff states that he believes Defendants were aware that there were serious
water problems in the property and did not know or properly investigate the source of
those problems and that, had they done so, they would have known that the siding
created at least a part of the problem.
36. Admitted.
37. Denied. First, the averments in Paragraph 37 of Defendants' New Matter only
present conclusions of law and not averments of fact. To the extent, however, that they
are deemed to include factual statements, Plaintiff denies them and states that the only
claims or potential claims Plaintiff waived by not participating in a pre-settlement
inspection were problems which would have been readily noticeable to him at the time of
such pre-settlement inspection. Plaintiff further states that the serious problems with the
property were not then evident or noticeable.
38. No answer required because this paragraph only presents conclusions of law
and now factual averments.
39. No answer required because this paragraph only presents conclusions of law
and now factual averments.
40. No answer required because this paragraph only presents conclusions of law
and now factual averments.
41. No answer required because this paragraph only presents conclusions of law
and now factual averments.
42. No answer required because this paragraph only presents conclusions of law
and now factual averments.
43. No answer required because this paragraph only presents conclusions of law
and now factual averments.
44. No answer required because this paragraph only presents conclusions of law
and does not contain factual averments. However, by way of further answer, Plaintiff
states that he attempted to mitigate the loss and attempted to resolve this matter with the
Defendants, but was unable, financially, to effect all the repairs necessary to fully mitigate
his loss and the Defendants were unwilling to work with him to solve the problems or
mitigate his losses.
II
~..,....
45. No answer required because this paragraph only presents conclusions of law
and now factual averments.
46. Denied. Plaintiff is without information regarding the averments set forth in
this paragraph which are sufficient for him to respond to it because that information is all
within the exclusive control of the Defendants or other parties unknown to Plaintiff and so
Plaintiff denies those averments and demands proof thereof at trial.
47. Denied. Plaintiff's complaint is valid, filed in good faith, is supported by
evidence, and is
consistent with existing law. Defendants are not entitled to attorneys fees or other
sanctions.
WHEREFORE, Plaintiff prays this court to enter judgment against the Defendants
and in favor of Plaintiff in accordance with his original complaint in this matter.
~~
Attorney for Plaintiff
Supreme Court ID # 17225
525 North 12th Street
Lemoyne, Pa 17043
(717) 761-5361
-----~
"iJ..
I verify that the statements made in this document are true and correct. I
understand that any false statements in this document are subject to the penalties of 18
Pa. C.S. 4904 (unsworn falsification to authorities).
Date: :J/ctjo1
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SCOTT A. MARLOW
vs
TIMOTHY STRAUB and MARISA A STRAUB, his wife,
CALVIN WILLIAMS, III and AMY W. WILLIAMS, his wife
FILED-OF F1CF
0 F TI1E a k 0 110 N 0 TA R Y
2010 SEEP 20 FM G: 04
CIBERLA'ND hkT3 06-6548
Statement of Intention to Proceed
To the Court:
SCOTT A. MARLOW
SAMUEL L. ANDES
Print Name
Date: 09-17-2010 Attorney for
intends to proceed with the above captioned matter.
Sign Na
PLAINTIFF
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
1. Rule of civil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules.
This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,7I0 A.2d
1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable.
II Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff
must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2).
B. Where the action has not been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 230.2.
f
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTAR)' OF CUMBERLAND COUNTY
Please list the following case:
?X for JURY trial at the next term of civil court.
? for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
SCOTT A. MARLOW,
(check o:
X? Civil
? App(
? -
(other)
vs.
TIMOTHY STRAUB,
et. al
VS.
(Plaintiff)
(Defendant)
The trial list will be
and N/A
may. 9
Law
arbitration
4 January 201
on
31
Trials commence on
2011
19 January 2011
Pretrials will be held on
(Briefs are due S days be ore pretrials
No. 2006-6548 CIVIL Term
Indicate the attorney who will try case for the party who files this
SAMUEL L. ANDES, P.O, BOX 168, LEMOYNE, PA 17043
Indicate trial counsel for other parties if known:
innnr-c (.r)I nSMITH. 3631 NORTH FRONT STREET, HARRISBURG, IA 17110
This case is ready for trial.
Date: 28 OCTOBER 2010
Print Name:
Signed:
PLAINTI
Attorney for:
EL L.I. ANDES
James L. Goldsmith
Attorney I.D. No. 27115
Thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Counsel for Defendants
E PROTHONOT
UE TH ARY
2018 DEC -6 AFB g: 36
CUMBERLAND COUNTY
PENNSYLVANIA
SCOTT A. MARLOW,
Plaintiff
vs.
TIMOTHY STRAUB and
MARISA A. STRAUB, his wife,
CALVIN WILLIAMS, III, and
AMY W. WILLIAMS, his wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.060<" G 5 `i $
CIVIL ACTION- LAW
JURY TRIAL DEMANDED
DEFENDANTS' OBJECTION TO CERTIFICATE OF READINESS
Defendants, Timothy Straub, Marisa S. Straub, Calvin Williams, III, and Amy W.
Williams, by his undersigned counsel, objects to plaintiff s certificate of readiness for the
following reasons:
1. On November 4, 2010, counsel for plaintiff filed with the Court a certificate of
readiness in the above case.
2. The certificate has been filed prematurely.
3. Certain important material and information in possession of the plaintiff was to be
forwarded to defendants' counsel pursuant to their requests of March 16, 2010 and earlier.
1
4. These documents and information have not been provided in accordance with the
Rules of Civil Procedure to date.
5. Discovery is not complete.
6. Because of the lack of these documents and additional discovery, defendants' counsel
is unable to determine whether this matter is ready in all respects for trial.
7. Additional depositions of key witnesses and/or experts are necessary.
8. Because of the lack of these documents, additional discovery and continued claims by
plaintiff without the support admissible evidence or testimony, defendants' counsel has been
unable to make an informed appraisal of the case, and, consequently, there have been no serious
settlement negotiations conducted by counsel.
WHEREFORE, Defendants Timothy Straub, Marisa S. Straub, Calvin Williams, III, and
Amy W. Williams objects to the certificate of readiness.
Respectfully submitted,
Date: By:
James L. Goldsmith
Attorney I.D. No. 27115
Thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Counsel for Defendants
2
CERTIFICATE OF SERVICE
AND NOW, this 6th day of December, 2010, I hereby certify that I have served a
copy of the within document on the following by depositing a true and correct copy of the same
in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
CALDWELL & KEARNS
By62
06698-001/170930
3
SCOTT A. MARLOW, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v CIVIL ACTION - LAW
TIMOTHY STRAUB,
MARISA A. STRAUB,
CALVIN WILLIAMS, III, and
AMY W. WILLIAMS,
Defendants 06-6548 CIVIL TERM
IN RE: DEFENDANTS' OBJECTION TO CERTIFICATE OF READINESS
ORDER OF COURT
AND NOW, this 4th day of January, 2011, upon
consideration of the call of the civil trial list and of
Defendants' Objection to Certificate of Readiness, and following
a conference in chambers of the undersigned judge, in which
Plaintiff was represented by Samuel L. Andes, Esquire, and
Defendants were represented by Thomas S. Lee, Esquire, the
Defendants' Objection to Certificate of Readiness is overruled,
without prejudice to the right of Defendants to file a formal
motion for a continuance upon which a record can be made.
Pending further Order of Court, the case shall
remain on the trial list.
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
For Plaintiff
/Thomas Thomas S. Lee, Esquire
3631 N. Front Street
Harrisburg, PA 17110
For Defendants
i u
orlB
_1
M
P" 1
Court Administrator
:mae
By the Court,
M
r r q u???-V td't .'a
"IL
James L. Goldsmith
Attorney I.D. No. 27115
Thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 171 10
(717) 232-7661
Counsel for Defendants
> 3
?``' s?Ca kk :i.1
?t t ,?, ,q titr
SCOTT A. MARLOW,
Plaintiff
vs.
TIMOTHY STRAUB and
MARISA A. STRAUB, his wife,
CALVIN WILLIAMS, III, and
AMY W. WILLIAMS, his wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
: NO. 06-6548
CIVIL ACTION- LAW
JURY TRIAL DEMANDED
MOTION IN LIMINE
NOW COMES Defendants, Timothy Straub, Marisa A. Straub, Calvin Williams,
III and Amy W. Williams, by their undersigned attorneys, and files this motion in limine
to respectfully request this Honorable Court to enter an Order precluding Plaintiff, his
witnesses and Plaintiffs counsel from offering evidence, or otherwise bringing before the
jury, any of the matters as are fully set forth in this Motion:
GENERAL STATEMENT OF THE CASE
This case arises out of the sale of residential real property by Defendants to
Plaintiff. The Defendants had acquired the duplex located at 444 Bosler Avenue with the
intent of undertaking a large-scale clean-up and interior renovation for the purpose of
reselling the property at a profit. At the time of Defendants' purchase, the exterior was
clad in vinyl siding which appeared to be in reasonably good condition to the prudent
observer. The rear yard was vastly overgrown and the interior, while requiring
substantial superficial renovations (paint ceiling, floors walls, kitchen appliances,
cupboards, cabinets, etc.), but otherwise the property was without structural or systemic
problems.
Defendants have testified that they did whatever their contractors recommended
with respect to making the property habitable and in a good state of repair. Their initial
efforts were frustrated because the Defendants' contractor was both less skilled and
experienced than he had originally claimed. His replacement necessitated doing-over
some of the original repair work at a cost that ultimately eliminated all profits from the
venture. Regardless, Gary Kopperman who was the contractor engaged to finish the
project, did so in a workmanlike manner.
Kopperman, whose testimony has been taken, claims that he repaired all known
defective conditions observed by him. Further, he will testify that he was not encouraged
to cut corners and would not have done so if asked. Kopperman has substantial
credentials and was invited to participate in the renovations to the State House and State
Senate chambers during the capital remodeling project.
Months after purchasing the property, it was discovered that an enclosed side
porch had sustained water infiltration and mold growth. The side porch is approximately
three feet in width and its purpose is to connect the dining room of the home to a
bathroom that was added to the rear of the home where a partially enclosed porch once
stood. It is evident that a roof seam or joint had allowed the infiltration of water which
entered this enclosed walkway/porch and which necessitated repair.
Plaintiff did not affect repairs that were necessary or take any other action to
mitigate the damages he observed. Rather, Plaintiff moved from the property and ceased
to make payments. Ultimately, the property went into foreclosure and title was lost to
Plaintiff's mortgage lender. Plaintiff now lays at the feet of Defendants myriad claims
that are averred to have resulted from the negligent and/or intentional misrepresentation
of the Defendants. Liability is at issue. More specifically for purposes of this Motion In
Limine, matters that Plaintiff contends to complain of before the jury are inadmissible for
the reasons set forth below and should be precluded.
1. THE APPLICABLE MEASURE OF DAMAGES IS THE DIMINUTION
AND VALUE OR COST OF REPAIR, WHICHEVER IS LESS
Plaintiff has failed to adduce evidence of the recoverable damages allowed in a
misrepresentation of property condition case and therefore should be precluded from
introducing evidence of damages that may not be considered and are not recoverable.
The Pennsylvania Supreme Court has considered this issue in Gadbois v. Leb-Co
Builders, Inc. 458 A.2d 555 (Pa. 1983). In Gadbois, the purchasers bought a house from
defendant builder. After taking possession, plaintiffs discovered that the sewage disposal
system did not work and that raw sewage backed up into the basement. The trial court
awarded the plaintiff $18,000.00, which was deemed to be the difference between the
property value with a suitable sewage disposal system, as represented, and the property
with the defective system as existed. The builder filed post trial motions claiming
awardable damages should have been $3,000.00, the cost to repair the system. The trial
3
court en Banc agreed and molded the verdict to the lower amount for what it held to be
the cost of repairs. On appeal, the Gadbois court agreed that if the sewage system could
be repaired for less than diminution of value, damages would be the cost of repair. This
is the generally recognized rule of recovery in such cases.
Plaintiff has the burden of going forward and submitting evidence of damages as
comports with Pennsylvania law. In this case, Plaintiff is unable to demonstrate the
diminution in market value and is unable to demonstrate whether the estimated cost of
repair is more or less than the diminution. Plaintiff has adduced no evidence of value and
no appraisal. Plaintiff's subjective estimate of value is inadmissible, nor is Plaintiff
qualified to testify as to the value of repairs. Plaintiff has indicated an intent to offer the
testimony of Steven Yingst, P.E. as to the problems identified as a result of his
assessment of the property. While Yingst may be so qualified, he has not estimated the
cost to correct the item and therefore his testimony is largely non-dispositive and non-
probative as to the damages that may be recovered. Absent testimony of the diminution
in market value, and absent testimony of the cost of repair, Plaintiff cannot submit a case
of recoverable damages.
Additionally, to permit this case to otherwise proceed to the jury with respect to
damages is to invite wholesale speculation. The jury would have no basis on which to
calculate damages. Yingst's report concludes "if you desire, a detailed cost estimate for
the required work activities can be prepared." See Exhibit "A", January 6, 2009, Yingst
Report.
4
II. THE WRONG MEASURE OF DAMAGES IS PERSONAL INJURY OR
DAMAGES THAT ARE DERIVATIVE OF PERSONAL INJURY
Plaintiff has failed to plead, adduce evidence of, and should be precluded from
introducing evidence of personal injury or damages that are derivative of personal injury.
A General Primer on Mold Litigation
Exposure to mold does not always mean personal injury and there are tremendous
differences among the various mold species and among individual responses to various
mold species. Depending upon type, duration of exposure and the individual, there can
be many or no reactions to exposure to the inhalation of mold spores. See HENNING &
BERMAN, Mold Contamination: Liability and Coverage Issues: Essential Information You
Need to Know for Successfully Handling and Resolving Any Claim Involving Toxic
Mold, 8 Hastings W.-N.W. J. Envtl. L. & Pol'y 73, 83-84 (Fall, 2001).
Since Pennsylvania does not have much case law derived from mold litigation, a
simple primer is informative. Henning & Berman provide a comprehensive analysis of
the essential steps in toxic mold claim. The essential steps are briefly itemized below:
Identify and select key experts early on from the following, which is not exhaustive:
(1) Indoor Air Quality Issues
(a) Industrial Hygienist (always required for sampling of environment)
(b) Microbiologist
(c) Mycologist (prevalence, growth and toxicity of various molds)
(d) Toxicologist (animal studies/human health risks from mold)
(e) Ventilation Expert
(2) Medical Issues
(a) Allergist (clinical effects of mold and relationship to other causes)
(b) Dermatologist
(c) Gastroenterologist (causes of GI symptoms)
(d) Occupational Physician
(e) Pulmonary Specialist (clinical effects of mold on the respiratory tract)
(f) Treating Physician(s)
5
(g) Rheumatologist (potentially required to evaluate autoimmune disease)
(3) Mental Health Issues
(a) Neuropsychol o gist (cognitive/behavioral effects of mold)
(b) Psychologist
(c) Psychiatrist
(4) Construction Issues
(a) Architectural
(b) Cost Estimation
(c) Concrete
(d) General Contracting
(e) HVAC
(f) Plumbing
(g) Roofing
(h) Soils
(i) Waterproofing
(j) Windows
(k) Remediation
(1) Statistician
(in) Valuation
SEE HENNING & BERMAN, Mold Contamination: Liability and Coverage Issues: Essential
Information You Need to Know for Successfully Handling and Resolving Any Claim
Involving Toxic Mold, 8 Hastings W.-N.W. J. Envtl. L. & Pol'y 73 (Fall, 2001).
Exposure to mold and the sequelae thereof are not matters of common experience.
Much has been written on mold and there is great controversy whether certain strains
(staccybotorus and aspergillus) may relate to symptoms and there is no conclusive or
generally accepted principal. Persons with certain susceptibilities may or may not
develop symptoms where others may react differently when exposed to the same strains.
A. Plaintiff has failed to plead personal injury or other causes of action
beyond misrepresentation
Plaintiff's causes of action are misrepresentation and intentional fraud. In the ad
dammum clause to these allegations, Plaintiff claims property damage only. Yet, based
on a demand expressed by Plaintiff and other non-record exchanges, it is anticipated that
Plaintiff seeks to testify that he suffered physical and mental illness, necessitating an
6
abandonment of the property and a need to absent himself from his employment, as a
result of inhalation or exposure to mold.
Any claims beyond that of property damage are derived from either the fear of
contamination, or the sequelae of exposure which can only be established by competent
expert testimony. Any claims beyond property damage should not be asserted in this trial
because of the reasons set forth below.
Any derivative claims that are premised on an exposure-related injury, including
but not limited to, loss of income attributed to missed work, the financial implications
from removing himself from the alleged contaminant (the basis of his economic claims
that he lost money attributed to the necessity of moving from the home) should also not
be asserted in this trial because of the reasons set forth below.
Plaintiff has failed to plead and cannot recover seek to recovery any of the
following for the reasons set forth in ra.:
• Personal injury;
• Derivative claims premised on an exposure-related injury;
• Fear of contamination or exposure
• Depression;
• Loss of investment;
• Mental or emotional distress;
• Wage loss;
• Lost earning capacity and future impairment of earnings;
• Past and future noneconomic losses (pain and suffering; embarrassment
and humiliation, loss of enjoyment of life);
• Under the Unfair Trade Practices and Consumer Protection Law;
• Lost profits
B Plaintiff cannot amend the complaint to add new causes of action
since the two-year statute of limitations has expired
7
Plaintiff is barred from amending the complaint to now include a claim for
personal injury damages since the two-year statute of limitations has expired. In
Pennsylvania, an action to recover damages for personal injuries is governed by a two-
year statute of limitation. 42 Pa.C.S. §5524(2); Aivazolou v. Drever Furnances, 613 A.2d
595 (Pa. Super. 1992). The nature of the relief requested in Plaintiff's complaint is
property damage. Since the nature of the relief requested, rather than the form of the
pleading, determines which statute of limitations controls a particular action. S ap ck v.
Apostolidis, 510 A.2d 352, 365 (Pa. Super. 1986). The two year statute of limitations
contains general language and does not distinguish personal injuries from negligence or
contract breaches. Rather, it addresses every suit to recover damages for injury
wrongfully caused due to a person. Id.; see also PROSSER AND KEETON ON THE LAW OF
TORTS § 92, at 666-67 (W. Keeton 5th ed. 1984).
C Plaintiff did not amend the complaint prior to the expiration of the
two-year statute of limitations to include new causes of action
Not only has the Plaintiff failed to plead a cause of action for personal injury,
derivative claims based upon an exposure-related injury, and now distress, Plaintiff has
failed to seek amendment to include such claims within the requisite statute of
limitations. In the complaint, the ad dammum clause only claims property damage. The
alleged events in this lawsuit occurred in 2006.
D Plaintiff has failed to produce competent expert medical testimony
to establish causation
Pennsylvania law requires that the causal connection between an event
(exposure), an injury to be established by competent expert medical testimony to a
8
reasonable degree of medical and/or scientific certainty. The only exception to this
evidentiary rule is in cases where the matter under investigation is so simple or the lack
of skill or care so obvious as to be within the range of experience and comprehension of
even nonprofessional persons. Pennsylvania case law is clear that in a personal injury
case when there is no obvious causal relationship between the accident and the injury,
unequivocal medical testimony is necessary to establish the causal connection. Smith v.
German, 253 A.2d 107 (Pa. 1969); Florin v Sears Roebuck & Co., 388 Pa. 419, 130
A.2d 445 (1957); Washko v. Ruckno, Inc., 180 Pa.Super. 606, 121 A.2d 456 (1956); Rich
v. Philadelphia Abattoir Co., 160 Pa.Super. 200, 50 A.2d 534 (1947).
A brief review of the right to recover, in Pennsylvania, for fright, shock, and
emotional distress resulting from negligent conduct, or for physical injury is instructive.
It had long been held that, absent a contemporaneous physical impact upon the plaintiff s
body there can be no recovery of damages for injuries resulting from fright or nervous
shock or mental or emotional disturbances or distress. Knaub v. Gotwalt, 422 Pa. 267,
220 A.2d 646 (1966) ; Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216 (1960) ; Bosley v.
Andrews, 393 Pa. 161, 142 A.2d 263 (1958) ; Potere v. Cif of Philadelphia, 380 Pa. 581,
112 A.2d 100 (1955); Hess v. Philadelphia Transp. Co., 358 Pa. 144, 56 A.2d 89 (1948).
This limitation was deemed necessary because of the difficulty of proving causation
between mental trauma and physical injury allegedly caused thereby and in order to
prevent fraudulent or exaggerated claims, or a flood of litigation.
In Niederman v Brodsky, the Pennsylvania Supreme Court abandoned actual
impact as a precondition to damages for shock, mental pain, and physical illness resulting
9
in situations where the plaintiff, although escaping immediate bodily injury: (1) was in
personal danger of a physical impact due to the defendant's negligence; and (2) actually
feared such impact. 261 A.2d 84 (Pa. 1970) . In so ruling, the court expressed agreement
with the section of the RESTATEMENT SECOND, TORTS that provides: "If the actor's
conduct is negligent as creating an unreasonable risk of causing bodily harm to another
otherwise than by subjecting him to fright, shock or other similar and immediately
emotional disturbance, the fact that such harm results solely from the internal operation
of fright or other emotional disturbance does not protect the actor from liability."
RESTATEMENT SECOND, TORTS § 436(2).
The Niederman court reasoned that medical science is now sufficiently advanced
to be able to establish a causal connection between psychic trauma and resulting
physical injury; that claims for injury due to emotional distress are not uniquely
susceptible to fraud or exaggeration, or any less easily exposed as fraudulent or
exaggerated than cases involving contemporaneous physical impact; and that emotional
distress claims would not result in a flood of new litigation. Niederman v. Brodsky, 261
A.2d 84, 87 (Pa. 1970). While Niederman the court abandoned actual impact as a
precondition to damages for shock, mental pain, and physical illness, it did not abandon
the need for expert testimony to establish a causal connection between a plaintiff's
alleged damages and the defendant's conduct.
Plaintiff has failed to produce expert medical or scientific testimony to meet the
established requirements to prove causation. The extent of Plaintiff's documentation is a
record from a William Rugg, a licensed social worker, records from Philhaven. Hospital,
10
prescription records and records from a Dr. Helen Wang. Both the Rugg document and
Philhaven documents relate to "self-reported" depression. Plaintiff does not intend to call
Dr. Wang as a witness. Plaintiff does intend to call Mr. Rugg and seeks to admit
Philhaven record. Plaintiff does not have admissible testimony from a medical expert
stating that, in their expert opinion, the alleged symptoms from mold exposure and
emotional distress resulted from the Defendants conduct. In response to a letter requested
by Plaintiff s attorney, William Rugg wrote a letter stating:
Mr. Marlow presented with and is being treated for chronic distress over
his significantly altered life-style and self-perception due to reported
medical problems and financial complications. These conditions are
reported as being the result of the purchase of a house that has significant
structural problems, including mold that reportedly cause patient illness
and that doesn't allow him or his son to reside in the residence, Mr.
Marlow obsesses on the residence problems that negatively impacts on his
emotional stability and his depressed mood. Treatment has focused on
Mr. Marlow's depression and sense of perceived personal devaluation.
Treatment has been on cognitive, behavioral therapy.
William F. Rugg, March 17, 2009 letter to Samuel L. Andes, Esq.
Mr. Rugg or any other expert witness does not establish a causal link between the
exposure to mold, emotional distress, depression and the Defendants' alleged conduct.
It should be noted that Interrogatories and a Request for Production of Documents
were served upon Plaintiff by Defendants which, sought inter alia, a report from
Plaintiffs expert setting forth the basis for his or her conclusions. This letter, if it was
furnished in response to that discovery, does not establish a basis on which the alleged
expert has allegedly relied other than the causal connection which is "self-reported" by
Plaintiff. The social worker does not opine that he relied on the results of a medical
opinion reasonably relied upon by practitioners, or that he has a factual awareness on
11
which he established the causal connection between the exposure and the depression that
is deemed to be related.
Rugg's anticipated testimony is inadmissible because it lacks foundation, is not
expressed to the medical or scientific degree of certainty required by Pennsylvania law,
and does not demonstrate his expertise (no curriculum vitae was produced though the
same was sought via discovery).
In Pennsylvania the law regarding the qualifications of witnesses as experts is
well established. Whether a witness has been properly qualified to give expert opinion
testimony, is vested in the discretion of the trial court. Abbott v. Steel City Piping Co.,
263 A.2d 881, 885 (Pa. 1970). Moreover, the Pennsylvania standard of qualification for
an expert witness is a liberal one, and if a witness has any reasonable pretension to
specialized knowledge on this subject under investigation, he/she may testify, and the
weight to be given to the testimony is for the fact-finder. Kuisis v. Baldwin-Lima-
Hamilton Corp., 319 A.2d 914, 924 (Pa. 1974). Mr. Rugg, as a licensed social worker,
has no reasonable pretension to specialized knowledge to be testifying with regard to
psychological and/or psychiatric diagnoses. For example, in Palcsey v. Palcsey, a
licensed social worker was precluded from testifying with regard to psychological and/or
psychiatric diagnoses. 2000 WL 3352792851; Pa. D. & C.4th 157 (Allegheny Co. 2000).
Plaintiff failed to adduce evidence of his exposure to any bioaerosls that is
demonstrated to have any impact on humans. Plaintiff has not identified the mold to
which he claims exposure, whether the mold was airborne, that symptoms relate to such
exposure, that the exposure was to any quantifiable and identifiable substance. To allow
12
Plaintiff to offer conjecture as to what he suffered as a result of any alleged exposure or
concerns over financial costs is to invite wholesale speculation not routed in scientific or
medical objectivity.
E Plaintiff himself cannot testify or produce evidence regarding an
actual personal injury
Not only has the Plaintiff failed to plead a cause of action for personal injury
within the statute of limitations, he has failed to adduce any evidence that the spotting he
observed in the enclosed porch is mold, or any strain of mold that may impact humans;
that the growth was at any time in an airborne state inhaled by Plaintiff; that Plaintiff had
a symptom of whatever magnitude that can be related to the inhalation or exposure to
mold; that the inhabited portion of the property had mold in any identifiable amount or
any substantiation based upon a degree of medical or scientific certainty, that Plaintiff
suffered any sequelae from living in the subject property.
Plaintiff is unable to bring to this trial any evidence of causation and therefore
wishes to establish the same by unsupported anecdotal evidence. To allow the Plaintiff to
testify that he suffered symptoms is to invite the jury to reward conjecture and
speculation. Certainly, if the Plaintiff were to introduce medical testimony that his
exposure to the specific mold in the subject property cause physical symptoms to a
reasonable degree of medical certainty, then the threshold has been crossed and the
Plaintiff would be competent to testify as to his personal experience. Because the
threshold cannot be pierced by this Plaintiff, his testimony regarding personal injury or
other derivative damages must be wholly withheld from the jury.
13
For Plaintiff to testify that he suffered physical symptoms from habitation of the
home is a circumvention of basic Pennsylvania law that requires the causal connection
between an event (exposure), an injury to be established by competent expert medical
testimony. The only exception to the otherwise invariable expert testimony rule is in
cases where the matter under investigation is so simple or the lack of skill or care so
obvious as to be within the range of experience and comprehension of even
nonprofessional persons. Pennsylvania case law is clear that in a personal injury case
when there is no obvious causal relationship between the accident and the injury,
unequivocal medical testimony is necessary to establish the causal connection. Smith v.
German, 253 A.2d 107 (Pa. 1969); Florg v. Sears, Roebuck & Co., 388 Pa. 419, 130
A.2d 445 (1957); Washko v. Ruckno, Inc., 180 Pa.Super. 606, 121 A.2d 456 (1956); Rich
v. Philadelphia Abattoir Co., 160 Pa.Super. 200, 50 A.2d 534 (1947).
Plaintiff cannot testify about damage beyond property damage since plaintiff s
nonmedical testimony cannot be offered to support a speculative claim since the
underlying requisite medical expert testimony to establish a cause of action beyond
property damage is absent. In Smith, Plaintiff sought damages arising out of automobile
collision. After a jury trial both parties were found negligent, and plaintiff appealed. The
Supreme Court held that expert testimony was required to establish the causal connection
between plaintiffs emotional difficulties allegedly resulting from iniuries sustained in
collision with defendant's automobile; therefore, admitting nonmedical testimony was
highly prejudicial and inadmissible. 253 A.2d 107, 109 (Pa. 1969). The issue is not
merely one of semantics. There is a logical reason for the rule. The opinion of a medical
14
expert is evidence. If the fact finder chooses to believe it, she can find as fact what the
expert gave as an opinion. For a fact finder to award damages for a particular condition to
a plaintiff, it must find as a fact that that condition was legally caused by the defendant's
conduct. McMahon v. Young, 276 A.2d 534, 535 (1971). A jury cannot be permitted to
speculate on the issue of causation, there must be evidence on the record which satisfies
the standard of certainty outlined above.
F Plaintiff himself cannot testify or produce evidence regarding a
present fear of iniury due to mold exposure or fear financial implications from
removing himself from the alleged contaminant
Plaintiff does not have the requisite expert testimony to establish a causal
connection between Defendants' alleged misrepresentations and an actual injury by
Plaintiff. Plaintiff must also be excluded from seeking to recover under Pennsylvania law
for emotional distress consisting of a present fear of injury in that, as a result of exposure
at the defendants' hands to a hazardous substance or bacteria, he will or might contract a
disease in the future related to the noxious agent, although he has not actually yet
developed the feared malady. Plummer v. U.S., 580 F.2d 72 (3d Cir. 1978) (where
plaintiff sought emotional distress damages resulting from the fear of his exposure to
bacteria and what he might subsequently contract).
It is believed from demands and in Plaintiff's Pre-Trial Conference Memorandum
that he seeks to submit his own subjective testimony that fear of mold damage to his
home will have, or could have, an impact on his remaining in that home and therefore his
finances. Plaintiff seeks to claim that he suffered a depression or emotional distress
15
consisting of a fear of injury as a result of exposure to, in this case, an undefined and
unquantified mold. This has been found to be insufficient to justify recovery of
emotional distress damages. Id.
In cases where there is alleged distress without an independent physical impact or
injury, recovery for fear of contracting a disease in the future is unavailable in the
absence of a present impact on the plaintiffs body resulting from exposure to the noxious
agent. In accordance with the RESTATEMENT SF,CONV, TORTS, under which a negligent
actor is not liable for emotional disturbance unaccompanied by some bodily harm or
other compensable damage, Pennsylvania courts have ruled generally that mere exposure
to a hazardous agent is insufficient for this purpose. That Plaintiff might have suffered a
future damage or disease, unaccompanied by evidence of bodily harm or compensable
injury, courts disallow the introduction of exposure-related damages. Bubash y_
Philadelphia Elec. Co., 717 F. Supp. 297 (M.D. Pa. 1989); Friedman v. F.E. Myers Co.,
706 F. Supp. 376 (E.D. Pa. 1989). Damages may not be awarded for fear of contracting a
disease where some medically identifiable physical illness, symptom, or effect of the
claimed exposure is not shown. Deleski v. Raymark Industries, Inc., 819 F.2d 377 (3rd
Cir. 1987); Bubash v. Philadelphia Elec. Co., 717 F. Supp. 297 (M.D. Pa. 1989);
Friedman v. F.E. Myers Co., 706 F. Supp. 376 (E.D. Pa. 1989); Houston v. Texaco, Inc.,
371 Pa. Super. 399, 538 A.2d 502 (1988) ; Berardi v. Johns-Manville Corp., 334 Pa.
Super. 36, 482 A.2d 1067 (1984) ; Cathcart v. Keene Indus. Insulation, 324 Pa. Super.
123, 471 A.2d 493 (1984) ; Peterman v. Techalloy Co., Inc., 29 Pa. D. & C.3d 104, 1982
WL 124 (C.P. 1982).
16
In his Complaint, Plaintiff has not specifically pled intentional or negligent
infliction of emotional distress. However, Plaintiff claims in paragraph 25 of his Reply to
Defendants' New Matter that Defendants intentionally misrepresented themselves in the
real estate transaction.
With regard to negligent infliction of emotional distress, Pennsylvania permits
recovery in certain circumstances:
1. when emotional injury is accompanied by physical impact;
2. where emotional injury results from the person's apprehension of impact (i.e.,
zone of danger), even if no impact occurs; or
3. where a person witnesses injury to another; however recovery in this situation is
limited.
Brooks v. Hickman, 570 F.Supp. 619 (W.D. Pa. 1983). Plaintiff was not physically
impacted, and was not in apprehension of physical impact, nor did he witness physical
impact to another; therefore precluding him from recovering damages as a result of
negligent infliction of emotional distress. In Brooks, Plaintiff filed a Complaint against a
financial broker, alleging fraud, mismanagement and misappropriation of funds, with
Plaintiff seeking recovery for emotional distress damages. The Court opined, "[t]he
defendants' negligent acts do not involve any physical impact-actual, threatened or
vicarious. We cannot find any Pennsylvania case permitting recovery for emotional
injuries arising solely from the negligent loss of a plaintiff's money." Id. at 620.
With regard to intentional infliction of emotional distress, Pennsylvania has
apparently, but not expressly, adopted the Restatement (Second) of Torts § 46(1)(1965),
which reads:
17
1. the conduct must be extreme and outrageous;
2. the conduct must be intentional or reckless;
3. the conduct must cause emotional distress; AND
4. the distress must be severe.
Kimmel v. Peterson, 565 F.Supp. 476, 498 (E.D. Pa. 1983). Comment (d) to Section 46
of the Restatement (Second) of Torts indicates:
Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized society. Generally, the case is one in which the recitation of facts
to an average member of the community would arouse his resentment
against the action, and lead him to exclaim "outrageous."
Id. at 499.
In Kimmel, Dr. Kimmel contacted an investment banking and brokerage firm,
indicating his desire to make prudent investments as a result of his thriving medical
practice. Id. at 479. Dr. Kimmel spoke with a broker, Peterson, and another managing
partner of the firm, who "detailed their expertise in the area" and assured Dr. Kimmel
"that all investments chosen would be thoroughly investigated to ensure their safety." Id.
Dr. Kimmel averred that he was urged to invest his life savings "on the basis of"
insufficient, false or misleading information" provided by Defendants. Id. Dr. Kimmel
also averred that Defendants failed to disclose to him the risks inherent in the investment.
Id. at 480. As a result, Dr. Kimmel asserted in his Complaint against Defendants, that his
loss of his life savings caused him to suffer "tremendous mental anguish." Id.
The Kimmel Court, unsure as to whether the Plaintiff was claiming negligent
infliction of emotional distress or intentional infliction of emotional distress, analyzed
both types of damages. Id. at 497. With regard to negligent infliction of emotional
18
distress, although the Court did not elaborate, it opined, "in the event that plaintiffs did
intend to allege negligent infliction as well, I must agree with defendants that no cause of
action has been established. Giving plaintiffs' factual allegations the most expansive
reading possible, this case simply does not rise to the level of negligent infliction of
mental distress." Id. at 498.
With regard to intentional infliction of emotional distress, the court indicated,
"[o]nly in very extraordinary cases have plaintiffs been held to state a cause of action
under this tort." Id. The Kimmel Court was clear that the mere loss of money, and not
the more personal loss of a life or health, is not recognized as actionable under intentional
infliction of emotional distress. Id. at 499. The case simply did not fit into the
description provided in Comment (d) of Section 46 of the Restatement (Second) of Torts;
therefore the Court did not permit recovery. Id. "To hold otherwise would transform
every sophisticated confidence scheme into an action for intentional infliction of mental
distress in clear derogation of the narrow scope accorded this tort by the Pennsylvania
courts." Id.
Only in very extraordinary cases have plaintiffs been held to state a cause of
action under this tort. In Chuy v Philadelphia Eagles Football Club, 595 F.2d 1265 (3d
Cir.1979), the Third Circuit, predicting how Pennsylvania Supreme Court would rule,
affirmed a district judge's decision to send the intentional infliction issue to the jury.
There the team doctor had told a sportswriter that a famous football player was suffering
from a fatal disease, polycythemea veria, knowing that he did not have that disease.
Plaintiff later read this public prognosis and suffered severe mental anguish. This
19
conduct, reasoned the court "could reasonably be regarded as extreme and outrageous."
595 F.Supp. at 1274. Similarly, in Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118
(1970) the court found a cause of action for intentional infliction established where
defendant struck plaintiffs son, killing him and, without informing anyone except a
friend, hid the body. After a few days in his garage, the body was moved and placed in a
hand dug grave. The minor's parents were not informed until the partially decomposed
remains were found and returned to plaintiffs. 437 Pa. at 375, 263 A.2d at 121.
These egregious situations must be compared with those cases denying a cause of
action for intentional infliction. In Mullen v. Suchko, 421 A.2d 310 (Pa. Super. 1980) a
woman was asked by her lover to leave her job so she would be more free to travel with
him. In return, he promised to care for her financially for the rest of her life. She left a job
of thirty-three years and soon thereafter, he followed suit and left her. The court
sympathetically noted that although defendant's actions were "inconsiderate and unkind,"
they were not "extreme and outrageous." 421 A.2d at 313. In Jones v. Nissenbaum,
Rudolph & Seidner, 368 A.2d 770 (Pa. Super. 1976), a law firm hired by a credit
company informed plaintiffs, by letter, that their homes were going to be sold from under
them to satisfy their debts. The firm knew that under law, they could not hold a sale
absent a hearing. Additionally, one plaintiff was verbally told, in front of neighbors, that
he had 30 days in which to move his "junk" out. Again the court found that this failed to
rise to the level of outrageous conduct. 368 A.2d at 744.
In Kimmel, the court held that the financial misrepresentation (securities fraud)
did not rise to the level of outrageous conduct as alleged by plaintiff who plaintiff who
20
argued a course of fraudulent conduct perpetrated by defendant, a trusted financial
advisor, because the case involves the mere loss of money, not the more personal loss of
a life or health as in Papieves or Chuy. Id. at 499. Comment (d) to section 46 indicates:
Liability has been found only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized society. Generally, the case is one in
which the recitation of facts to an average member of the community would arouse his
resentment against the action, and lead him to exclaim "outrageous." The court held that
case simply does not fit the above description and dismissed the negligent and intentional
infliction of emotional distress claims. Id. at 499. With respect to the claim of
intentional infliction of emotional distress, Defendants argued that the alleged behavior
did not rise to the level of "extreme and outrageous" conduct. Id. at 498. Plaintiffs
contended that whether the conduct was extreme and outrageous was a factual question
for the jury to decide. Id. at 499. Viewing all factual allegations and reasonable
inferences drawn therefrom in a light most favorable to the Plaintiff, the court concluded
that Plaintiffs' complaint failed to establish outrageous conduct as a matter of law. Id. at
498.
III. MOTION IN LINUNE TO EXCLUDE TESTIMONY FROM ASHLEY
SCHELL. COLIN HEPFORD AND STEPHANIE HEPFORD
Plaintiff should be precluded from introducing testimony from Ashley Schell,
Colin Hepford and Stephanie Hepford since Plaintiffs counsel is late in providing these
individuals as a witness and not previously provided notice of this witnesses. This
21
a
r
identification of this late witnesses greatly prejudices Defendants and denies Defendants
a meaningful opportunity to investigate and depose this potential witness' testimony.
IV. MOTION IN LINIINE TO EXCLUDE REFERENCE TO THIS MOTION
OF LIMINE
Plaintiff should be precluded from introducing to the jury that Defendants filed
this motion in limine, or otherwise suggesting to the jury that Defendants sought to
preclude evidence or proof improperly.
WHEREFORE, Defendants Tim Straub, Marisa Straub, Calvin Williams,
III, and Amy Williams, by their undersigned attorneys, respectfully requests this
Honorable Court to enter an Order precluding Plaintiff, his witnesses and Plaintiffs
counsel from offering evidence, or mentioning, referring to, or otherwise bringing before
the jury, directly or indirectly, any of the foregoing matters without first bringing the
matter to the Court's attention, out of the presence and hearing of the jury, and receiving
from the court a favorable ruling regarding the admissibility and relevance of such
matter.
Date: By:
Respectfully
Goldsmi
I.D. No.
1
Thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kear s, P.C.
3631 North Front Stree
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766 (fax)
Counsel for Defendants
22
//?P/4P,
CERTIFICATE OF SERVICE
AND NOW, this 18th day of January, 2011, 1 hereby certify that I have served a copy
of the Defendants' Motion In Limine on the following by facsimile and U.S. Mail Service
on The Honorable J. Wesley Oler, Jr. and via electronic mail (email) and U.S. Mail
Service on Samuel Andes, Esquire at the following addresses:
Via Facsimile - 240-6462
and U.S. Mail Service
The Honorable J. Wesley Oler, Jr., Judge
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Email Address - lawandes(a aoLcom
and U.S. Mail Service
Samuel L. Andes, Esquire
525 North Twelfth Street
Lemoyne, PA 17043
CALDWELL & KEARNS
By
Patt Wolf 17 06698-001/17294
C
SCOTT A. MARLOW,
Plaintiff
vs.
TIMOTHY STRAUB and MARISA A.
STRAUB, his wife, CALVIN WILLIAMS,
III, and AMY W. WILLIAMS, his wife,
Defendants
Fit
Etj
1,h yrrf' ?` aw`V?1,1
d i; i" t o I s i l
10
°:17-' l iJUy' ;
i still
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2006-6548
PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION IN LIMINE
AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and
makes the following Response to Defendants' Motion in Limine:
MISREPRESENTATION.
1. THE DEFENDANTS MISAPPREHEND AND MISUNDERSTAND THE
PROPER MEASURE OF DAMAGES IN A CASE FOR FRAUD OR
Defendants contend that Plaintiff may not recover any damages beyond the difference in
price of the property that he purchased and the actual value of the property he received.
Defendants cite several construction cases in support of that position. They further contend that
Plaintiff may not submit any evidence about the expenses he incurred for the treatment of the
emotional distress and depression he received as a result of Defendants' fraud and
misrepresentation or any other damages. Finally, Defendants argue that Plaintiff's claim must
be dismissed because he has not yet offered any evidence from which the court can determine
the difference in value of the house that he purchased and the damaged house he actually
received.
.?
Defendants' argument is based upon a misunderstanding of the law. Under Pennsylvania
law, the victim of fraud or misrepresentation is entitled to recover the following damages:
1. An amount measured by the difference between the value he gave and
the value he received in the transaction; and
2. All monetary losses otherwise suffered as a result of the fraud.
The very argument that Defendants make here was addressed by the Pennsylvania Supreme
Court in Scathe Comnanv vs Rockwell-Standard Corporation 285 A2d 451 (Pa. 1971). There,
Scathe had recovered a verdict against Rockwell for misrepresentation in the sale of a business.
At trial, the jury awarded Scathe both damages for the difference in the price Scathe paid for the
business and its actual worth and damages for Scathe's other economic losses. The trial court
accepted Rockwell's argument that the sole measure of damages should be the difference
between the consideration paid for the business and its true market value on the date of sale, and
granted Rockwell a new trial. On appeal, the Supreme Court set aside the action of the trial
court and reinstated the jury verdict, ruling that Scathe was entitled both to the difference
between the price paid for the business and its actual value and Scathe's actual expenses, which
included efforts to correct defects in the products manufactured by the company and Scathe's
operating losses from the business.' The Supreme Court's decision makes it clear that, in cases
of fraud or misrepresentation, the injured party may recover both the difference between what is
paid in the fraudulent purchase and the actual value of the item purchased and its other losses
and damages. Plaintiff here is entitled to the same recovery. Plaintiff seeks recovery for the
lost wages, the value of the personal property he lost, expenses for medical care, and the like.
Plaintiff is entitled to present those damages to the jury and is entitled to recover them if the jury
finds they are appropriate.
1 This legal position is now embodied in Pennsylvania's standard jury instructions,
specifically standard instructions 13.23 and 13.25.
II. PLAINTIFF WILL SUBMIT COMPETENT EVIDENCE TO THE JURY IN
SUPPORT OF HIS CLAIMS FOR DAMAGES.
Defendants contend that Plaintiff cannot establish the difference in value between what
he paid for the house and what it was actually worth. Defendants overlooked the well-
established principal of Pennsylvania law that the owner of property is always a competent
witness to testify about, and establish, its value. Semasek vs. Semaseku 502 A2d 109 (Pa.
1985) in Glanski vs. Ervineu, 409 A2d 425 (Pa. Super 1979), Plaintiff successfully recovered a
jury verdict against the Defendant for misrepresenting the condition of a farm house purchased
by Plaintiff. On appeal, the Defendant argued that Plaintiff had offered no competent evidence
as to the value of the property purchased as opposed to the purchase price. The Superior Court,
in rejecting that argument, specifically found that Glanski, as the owner of the property, was
competent to testify as to its value. Here the same principal should apply. Marlow can testify
about the value of his house, in the damaged condition he received it as a result of Defendants'
fraud.
Marlow will offer testimony about his other financial. damages, such as lost wages,
medical expenses, damages to his personal property, and the loss of use of the property. All of
that is competent evidence coming from the man who suffered those losses.
III. PLAINTIFF'S WITNESSES AS TO HIS MENTAL STATE AND DISTRESS
ARE COMPETENT TO TESTIFY IN SUPPORT OF HIS CLAIM FOR DAMAGES.
As noted above, Plaintiff's claim here is not limited to the reduction in value of the
property he purchased below what he paid for it. He is entitled to recover his other actual
expenses. Moreover, a critical issue in the case is Plaintiff's decision to vacate the house and
stop paying the mortgage, which eventually caused its lost to Plaintiff.
In support of his claim against Defendants, and in explanation of his decision to vacate
the real estate, Marlow will offer testimony from several witnesses who will testify about his
mental state and the stress and disturbance caused to him by his problems in the home. William
Rugg, a therapist who treated Plaintiff for emotional distress and depression, will testify about
Plaintiff's condition and about his eventual hospitalization for severe depression. Plaintiff's
girlfriend and members of his family will testify about their observance of the problems caused
to Plaintiff by the problems in the house and his eventual decision to move himself and his
young son out of it. They observed Plaintiff's distress and can testify about it.
Plaintiff has not asserted a claim for personal injury or pain and suffering. He does,
however, assert a claim for the loss of value of his house and various other expenses and losses
caused to him by Defendants' fraud and misrepresentation. Essential to those claims is his
decision to vacate the house, not return to it, and eventual stop paying the mortgage. Plaintiff
certainly can testify about his reasons for those actions and his witnesses, including Mr. Rugg
and members of his family, can certainly testify about their observations of his problems which
lead to those decisions.
Information about Plaintiff's damages, specifically including the mental distress,
depression, inconvenience, and the like, are necessary facts to put before the jury when they
consider Plaintiff's claim for punitive damages. One element that the jury must consider in
awarding punitive damages is the injury to the plaintiff caused by defendant's outrageous
conduct. Here, Plaintiff s evidence about his mental distress, the loss of the house, his
bankruptcy, and all of those matters are properly to be considered by the jury.
Once again, it appears that Defendants do not understand Plaintiff's claim in the case.
He is not seeking to recover pain and suffering in the form of a personal injury action. He is,
however, seeking to recover the financial losses he suffered by virtue of Defendants' fraud and
misrepresentation which caused the eventual loss of the house which was his home, his credit
rating and, at least for some period of time, his ability to continue to function in his career as a
Licensed Practical Nurse.
CONCLUSION.
For the reasons set forth above, the evidence Plaintiff seeks to introduce at trial is
admissible and, in fact, probative. As such, it should be admitted so it can be considered by the
jury. Defendants' attempt to limit Plaintiff s evidence to a reduction in the value of the house
below what he paid for it, without allowing Plaintiff to present evidence of his other financial
losses and the reasons for them, would deny Plaintiff his fair day in court.
Samuel L. An es, Esquire
Attorney for Plaintiff
Supreme Court ID # 17225
525 North 12th Street
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
10 *
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the forgoing document upon counsel for the
Defendants herein by regular mail, postage prepaid, addressed as follows:
James L. Goldsmith, Esquire
3631 North Front Street
Harrisburg, Pa 17110
Date: 25 January 2011 ,
UriqA Amy Wccrreetaaxy for S
amuel L. Andes
s
FILED-OFFICE
:ARY
OF THE PRO i HO OTA
James L. Goldsmith
Attorney I.D. No. 27115
Thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Counsel for Defendants
2011 JAH 28 PH 2: 1:
CUMBERLAND COUNTY
PENNSYLVANIt"N
SCOTT A. MARLOW,
Plaintiff
vs.
TIMOTHY STRAUB and
MARISA A. STRAUB, his wife,
CALVIN WILLIAMS, III, and
AMY W. WILLIAMS, his wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 06-6548
CIVIL ACTION- LAW
JURY TRIAL, DEMANDED
DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION IN
LIMINE
NOW COMES Defendants, Timothy Straub, Marisa A. Straub, Calvin Williams,
III and Amy W. Williams, by their undersigned attorneys, and files this reply to
Plaintiff's Response to Defendants' Motion in Limine to respectfully request this
Honorable Court to enter an Order precluding Plaintiff, his witnesses and Plaintiffs
counsel from offering evidence, or otherwise bringing before the jury, any of the matters
as are fully set forth in the Motion in Limine and Defendants' Reply.
1. Defendants' Motion in Limine seeks to address the appropriate measure of
damages. While plaintiff has only pled a misrepresentation case seeking property
damage and punitive damages, plaintiff seeks to recover lost wages, value of lost
personal property, expenses for medical care and ` the like.' The term `the like' is found
on page two of Plaintiff's Reply to the motion in limine and a clear example of the ever
changing nature of Plaintiff's case. Plaintiff attempts to oversimplify the circumstances
of the case. Plaintiff has stated in his Reply, "Once again, it appears that the Defendants'
do not understand Plaintiff's claim in the case." Defendants do understand the nature of
Plaintiff s case. Plaintiff is attempting to recover damages that have never been
recognized as awardable damages in a real estate misrepresentation case. Although
Plaintiff is not barred from recovering lost wages, medical expenses and `the like,' in a
lawsuit, he cannot seek to recover for these personal injury damages since has failed to
obtain an expert opinion that addresses a causal connection between Defendants' alleged
misrepresentations and Plaintiff s injuries. This case does not even rise to the level of a
battle between the experts. Plaintiff has no expert. Plaintiff has no qualified expert
opining on causation. Still, Plaintiff seeks to recover for lost wages, value of lost personal
property, expenses for medical care and `the like.' This is a farce and must end. These
claims, not pled and not supported by requisite proof must be dismissed.
Plaintiff fails to cite to any case law supporting the recovery for lost wages, value
of personal property lost, expenses for medical care and the `the like.' in a residential real
estate transaction involving misrepresentation. Defendants contend that to allow the jury
to consider any evidence or testimony beyond property damage and certain specific
consequential damages is inadmissible, speculative and highly prejudicial. Although the
fact finder is ultimately responsible for determining damages in a case, as a matter of law,
Plaintiff should be precluded from presenting evidence that is based upon conjecture.
2
2. Plaintiff cites to three cases in his Reply that do not support his claimed
measure of damages. Plaintiff is essentially asking the court to permit the jury to
consider wage loss, medical expenses and `the like' just because he is asking for it and
attempts to legitimize his position with no authority. Plaintiff's first case Scaife Co. is an
opinion that has no application to the current case since the factual circumstances
between the cases are not closely related. In Scaife Co, one heating company bought from
another a design and materials for producing a furnace that was fraudulently
misrepresented as being fully functional. The court allowed as damages the purchasing
company's operating losses and costs in fixing the furnace design in order to sell a fully
functioning product to customers. Nevertheless, should the Court determine that Scaife
Co. has an application to the current case, the opinion does not permit Plaintiff to recover
all types of consequential damages. Scaife Co. simply does not support that contention.
Instead, the majority was very clear in that, under a proper case, actual costs incurred by
the defrauded party in bringing the product line, and here, the property, up to necessary
standard may be recoverable. Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285
A.2d 451 (1971). Bringing the property up to a certain standard has no connection to lost
wages, medical expenses, and `the like.'
Plaintiff wrongly argues that Scaife Co. entitles Plaintiff to lost wages, value of
personal property lost, expenses for medical care and "the like."
3. Plaintiff also cites to Semasek v. Semasek to support the assertion that
plaintiff can be considered an expert when testifying in regards to the value of his
property. 502 A.2d 109, 112. Semasek is family law case that is not on point and
3
factually dissimilar. Glanski is cited to support the assertion that plaintiff can testify as to
evidence of damages consisting of purchaser's testimony about value of house at the time
of sale and after discovery of a material condition that was not disclosed. Glanski v.
Ervine, 409 A.2d 425. Defendants have no issue with Glanski.
4. Pennsylvania is well-settled regarding damages for fraud. Normally,
recovery is limited to actual damages. Under Pennsylvania law, in a common-law action
for fraud, the plaintiff is limited in recovery to actual damages. Hughes v. Consol-
Pennsylvania Coal Co., 945 F.2d 594 (3d Cir. 1991); Torres v. Borzelleca, 641 F. Supp.
542 (E.D. Pa. 1986). If the purchaser chooses to affirm the contract, damages generally
will be awarded based on either the purchaser's loss of the "benefit of the bargain" or "out
of pocket" expenses. The measure of damages will vary depending on the jurisdiction
where the action is brought and the specific facts of the case. Pennsylvania is an out-of-
pocket jurisdiction. Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002).
Consequential and punitive damages may also be awarded where appropriate. In
Pennsylvania, consequential damages in residential real estate misrepresentation cases
have been limited to recovery for costs to repair the property or land, not lost wages,
medical expenses and `the like.' Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002)
(Permitted damages include the costs to repair the roof ($2,000) and the costs to fill and
grade the yard ($5,000)); see also Miller v. Bare, 457 F. Supp. 1359 (W.D. Pa. 1978)
(damages in the amount necessary to repair the drainage system in order to prevent
further flooding). Consequential damages are available, but not the type that Plaintiff
believes he is entitled to.
4
WHEREFORE, Defendants Tim Straub, Marisa Straub, Calvin Williams, III, and
Amy Williams, by their undersigned attorneys, respectfully requests this Honorable Court
to enter an Order precluding Plaintiff, his witnesses and Plaintiffs counsel from offering
evidence, or mentioning, referring to, or otherwise bringing before the jury, directly or
indirectly, any of the foregoing matters without first bringing the matter to the Court's
attention, out of the presence and hearing of the jury, and receiving from the court a
favorable ruling regarding the admissibility and relevance of such matter.
Respectfully submitted,
Date: I-Q3- 0 By:
James L. Gol A
Vsr
Attorney I.D. No. 27115
Thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766 (fax)
Counsel for Defendants
06698-001/173005
5
CERTIFICATE OF SERVICE
I, Patty Wolf, do hereby certify that I served a true and correct copy of the within
document on this ?J'Y?*day of 2011, by depositing the foregoing in the U.S.
Mails at Harrisburg, Pennsylvania, postage prepaid and addressed as follows:
Samuel L. Andes, Esquire
Attorney At Law
525 North 12`h Street
P.O. Box 168
Lemoyne, PA 17043
lawandes(c-aol.com
Patty olf
6
SCOTT A. MARLOW, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
'7' m 'ma
TIMOTHY STRAUB, MARISSA r=
v
STRAUB, CALVIN WILLIAMS, III,
a rn
?°
AND AMY W. WILLIAMS, r- -+o
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DEFENDANTS 06-6548 CIVIL TERM >
-) n
co-
- C
ORDER OF COURT
AND NOW, this 1St day of February, 2011, upon consideration of defendants'
extensive motion in limine, plaintiffs response to the motion, defendants' reply to
plaintiff's response and the arguments of counsel in chambers prior to the selection of
the jury, the various matters are resolved as follows:
1. Plaintiff may introduce evidence of damages consistent with his claims of
fraud and misrepresentation and for violations of the Real Estate Disclosure
Act. However, plaintiff is precluded from introducing testimony as other
evidence advancing a claim under the Unfair Trade Practices and Consumer
Protection Law.
2. Plaintiff is precluded from introducing evidence or testimony regarding
personal injury and past or future non-economic losses, which shall include
pain and suffering, embarrassment and humiliation, and the loss of enjoyment
of life.
3. Plaintiff may testify that as a result of his perception of the damages to the
property, he has sought counseling for depression. However, in the absence
of any competent medical testimony making a causal connection between the
condition of the property and plaintiffs alleged depression, he is precluded
1
from introducing the testimony of William Rugg, a licensed clinical social
worker, to make such a connection nor may he do so with the introduction of
records from Philhaven Hospital.
4. Plaintiff is permitted to introduce the testimony of Ashley Schell, Colin
Hepford and Stephanie Hepford who may testify regarding their observations
of the property and their perception of its impact on plaintiff. However, these
witnesses are specifically precluded from testifying regarding any causal
connection between plaintiffs alleged fear of exposure to mold and his
alleged depression.
5. Plaintiff is precluded from introducing testimony as other evidence regarding
defendants' motion in limine, including raising any suggestion to the jury that
defendants' improperly sought to preclude any relevant evidence or proof.
By the Court,
?. 16W
Albert H. M'Samuel L. Andes, Esquire
For Plaintiff
James Goldsmith, Esquire
Thomas Lee, Esquire
For Defendants
Copes
41111
AO
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SCOTT A. MARLOW,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
TIMOTHY STRAUB, MARISSA
STRAUB, CALVIN WILLIAMS, III,
AND AMY W. WILLIAMS,
DEFENDANTS
06-6548 CIVIL TERM
VERDICT SLIP
QUESTION 1:
Do you find, by clear and convincing evidence, that the defendants made a
misrepresentation to plaintiff on the Sellers' Disclosure Statement?
YES t?
NO
If the answer to Question No. 1 is "No," you should return to the courtroom.
QUESTION 2:
Do you find, by clear and convincing evidence, that the misrepresentation on the
Sellers' Disclosure Statement was fraudulently made to the plaintiff?
YES ?
NO
If the answer to Question No. 2 is "No," you should return to the courtroom.
QUESTION 3:
Do you find, by clear and convincing evidence, that the misrepresentation on the
Sellers' Disclosure Statement to plaintiff was of a material fact?
YES ?
NO
If the answer to Question No. 3 is "No," you should return to the courtroom.
QUESTION 4:
Do you find, by clear and convincing evidence, that the defendants intended the
plaintiff to rely on the misrepresentation in the Sellers' Disclosure Statement?
YES ? NO
If the answer to Question No. 4 is "No," you should return to the courtroom.
QUESTION 5:
Do you find, by clear and convincing evidence, that the plaintiff relied on the
defendants' misrepresentation?
YES V" NO
If the answer to Question No. 5 is "No," you should return to the courtroom.
QUESTION 6:
Do you find, by clear and convincing evidence, that the plaintiff's reliance on the
defendants' misrepresentation was a factual cause of the harm suffered by the plaintiff?
YES -LX NO
If the answer to Question No. 6 is "No," you should return to the courtroom.
QUESTION 7:
Did the defendants have knowledge of the error, inaccuracy or omission of any
information in the Sellers' Disclosure Statement?
YES L-*? NO
If the answer to Question No. 7 is "No," you should return to the courtroom.
QUESTION 8:
Did the defendants' reasonably believe that a material defect or other matter not
disclosed had been corrected?
YES? NO
If the answer to Question No. 8 is "No," you should return to the courtroom.
DAMAGES
QUESTION 9:
Do you find that Marissa Straub or Amy Williams are responsible for any
damages?
YES NO ''?
QUESTION 10:
What are the reasonable costs of repair that defendants are responsible for due
to their misrepresentation?
$ 0
QUESTION 11:
What is the difference between the price paid and the real or fair market value of
the property at the time of sale?
$
Question 12: .Vk&. . Vic ?r C_ What f incidental costs and losses otherwise suffered as a result of the
fraud, which would include items such as rental or storage facilities.
$ /) 3' 13, $a C C l o,,h5 5?5
?
Question 13:
What are the total compensatory damages:
Insert the lesser of Question 10 arA11 -
Insert the amount form Question 12 -
TOTAL -
n
+
Question 14:
Do you find that plaintiff is entitled to an award of punitive damages?
YES
NO
Question 15:
If the answer to Question No. 14 is "Yes," against which defendant(s) do you
assess punitive damages and in what amount?
TIMOTHY STRAUB - YES NO AMOUNT-
CALVIN WILLIAMS, III -YES
Fe I- W 11 V 1
(Date)
NO AMOUNT -
F reperson
SCOTT A. MARLOW
In the Court of Commons Pleas O
of Cumberland County, PA.,
Docket No. 2006-6548
---- V S----
TIMOTHY & MARISSA STRAUB, CALV
AND AMY WILLIAMS
Judge: MASLAND
Attorney:? WL IQrI deS
Attorney: ?e S 7 cell ryl_
Date•_ 1 - 3'(-
JURORS
No. Juror #
1 IIIgIII?pgNgppIIHNNIHipN JAN31-43
2 IIIIpIINNMIINNNIppIllNllll JAN31-17
3 IIp111111pIN?NNA1gININ JAN31-119
4 IIIIpIigI1111pgpNINlpNlp JAN31-IS
5 IlplilllH111IINgNN1111111 JAN31-4
6 IIIIIIIIIIIINIIIppIlppNllll JAN31-290
7 IIIIIIIIIIIppIIII11111Np111 JAN31-95
g hum IM 11111 JAN31-74
9 IIIIIIIIIgi1111NNIIp0Hill JAN31-122
10 1111111111Rill 1101111111111111 JAN31-195
12 I IINII IIpI II1f INN illp INp 111111 JAN31-75
13 IIIIIIIIINIIIIp1lNllllllll111111111 JAN31-22
14 11111NII?NIIIIINH111111111111111 JAN31-38
15 111111111flI111111gI1pIi111N111 JAN31-285
16 1111111111111gIIIppN111llpllllll JAN31-234
17 111111111gIIINIIIIpINNIIgINllllll JAN31-239
18 1IIIIIIIIINIIIIIIINIpNlllllpilll JAN31-48
19 1IIIIIIIIIIINIIIIININIIIINNII JAN31-257
20 1IIIIIIIIIIIIIIIIIIgIgNplNNllp JAN31-336
21 IIIIIIIIIIIIpNIIINIINIIIIIIIIIIIiII JAN31-134
2
JAM"- 117-
NAMES OF JURORS CALLED
RAUBENSTINE„ JR NEVIN E
SHELTON, JOHN W
HENCH,BETH M
LU CIB CHRISTOPHER W
BOOTHE, JULIE S
WAITE, ZACHARY T
WHITTEN, TY J
LOWE, GREGORY M
ROSBOROUGH, GLENN K
HOWARD, SHIRLEY L
BAEHR, MARY M
CLOOS, TIMOTHY J
ZEIGLER, TODD
LOOP, JAMES
AKYOO, JESSICA R
--------------- -
LLOYD, MATTHEW S
--------------- -
TIDD, REBECCA
-------------
STARE„ JR :ERIC E
-------------- -
DAVIDSON, HEATH Z
-------------
CURRY, LUANN L
CAUSE I P
D
3
In the Court of Commons Pleas
SCOTT A. MARLOW of Cumberland County, PA.,
Docket No. 2006-6548
Judge: MASLAND
---- V S ----
TIMOTHY & MARISSA STRAUB, CALV
AND AMY WILLIAMS Attorney:
Attorney:
Date:
JURORS
No. Juror # NAMES OF JURORS CALLED CAUSE P D
23 InmIInINNN isimnnIN a JAN31-112 WALL, SAMUEL L
2
J - PH M
25 Illnnll 10111H1111 JAN31-49 HOLDEN, JUDITH M
26 InIwIINIImNimi JAN31-191 SAVIDGE, TERRILL J
27 IIIaNIINnn1?N11nI nNnN J -347 SMELTZER„ JR ROSS E
28 IIInNIInIIIINIINIIIININanNIIN JAN31-108 SHEAFFER, NANCY K
29 IIIIInIIIIIaINIIININnnNnll JAN31-272 STO DEBORAH A
30 IIIIIIIIIININNnNIIINI1?IInN?II JAN31-174 ROMANOSKI, CIA E
31 IIIIINIIININNIIINII?IIINIINIIII JAN31-83 MUL S, LARRY E
32 IIIIIIIIIIIIIIIAIIWIIIII mina JAN31-293 SHIELDS, VICKI J
33 IIIIIIIIINIHIIIIINNIINIIsIINIIII J -323 NESMITH, ROGER J
34 IIINIIImIIBINnn iniil JAN31-274 ECHELMEYER, DEBRA A
35 IIIIInIIAINn NNINIIIIII JAN31-346 LANDIS, DANIEL C
36
37
38
39
40
41
42
43
44
James L. Goldsmith
Attorney I.D. No. 27115
Thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
Counsel for Defendants
E HED 0;! Tai V
p
[ili 1 FEB 14 PM 2: 4 p.
`JlaM8ERL.kPZ Ct?u .I-ry
PEN'I'SYlvV;%a !A
SCOTT A. MARLOW, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs. : NO. 06-6548
TIMOTHY STRAUB and
MARISA A. STRAUB, his wife, :
CALVIN WILLIAMS, III, and :
AMY W. WILLIAMS, his wife, CIVIL ACTION- LAW
Defendants JURY TRIAL DEMANDED
DEFENDANTS' MOTION FOR POST-TRIAL RELIEF TO MOLD THE VERDICT
Pursuant to Pa. R.C.P. 227. 1, defendants Timothy Straub, Marisa A. Straub, Calvin
Williams, III, and Amy W. Williams, through the undersigned counsel, hereby moves the Court
to for post-trial relief to mold the verdict, and in support avers the following:
1. On February 4, 2011, the jury returned a verdict of $1,843.82 in favor of plaintiff.
2. Due to a typographical error on Verdict Slip Question 8, the verdict should be
decreased to $0.00.
3. The Court is authorized to mold the verdict pursuant to the Real Estate Seller
Disclosure Law which provides for the `Nonliability of seller' if an error, inaccuracy or
omission was based on a reasonable belief that a material defect or matter not disclosed
had been corrected. 68 Pa.C.S. § 7309(A)(2). On Question 8, the jury found that the
defendants' reasonably believed that a material defect or other matter not disclosed had
been corrected.
4. The verdict slip erroneously read, "If the answer to Question No. 8 is "No," you
should return to the courtroom."
5. Question 8 should have read, "If the answer to Question No. 8 is "Yes," you
should return to the courtroom."
6. The jury should not have considered Questions 9, 10, 11, 12, 13, or 1. 4, all of
which involve the measure of damages. No damages should have been awarded.
WHEREFORE, defendants Timothy Straub, Marisa A. Straub, Calvin Williams,
III, and Amy W. Williams respectfully request that the Court mold the verdict as set forth
above.
1 thomas S. Lee
Attorney I.D. No. 89440
Caldwell & Kearns, P.C.
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766 (fax)
Counsel for Defendants
06698-001/173521
Respectfully submitted,
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the
persons and in the manner indicated below, which service satisfies the requirements of
the Pennsylvania Rules of Civil Procedure, via email and First Class Mail, as follows:
Samuel Andes, Esquire
525 North Twelfth Street
Lemoyne, PA 17043-1068
lawandes@aol.com
By:
_
(4z J
?WEY f
DATED: February 14, 2011
SCOTT A. MARLOW,
PLAINTIFF
V.
TIMOTHY STRAUB, MARISSA
STRAUB, CALVIN WILLIAMS, 111,
AND AMY W. WILLIAMS,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
06-6548 CIVIL TERM
ORDER OF COURT
AND NOW, this ,-? day of March, 2011, upon consideration of
defendants' motion for post-trial relief, counsel are directed to appear for argument on
Friday, March 18, 2011, at 1:00 p.m., in Courtroom Number 5, Cumberland County
Courthouse, Carlisle, Pennsylvania.
By the Court,
f
Albert H. Masland, J.
'f Samuel L. Andes, Esquire
For Plaintiff
V James Goldsmith, Esquire r
Thomas Lee Esquire `' -- -` _
a
'?? Jr--
For Defendants
. lPd 3 f f it f ?" +?'s
:saa '?OP; e s rKa
F:. C,J Ar
SCOTT A. MARLOW,
PLAINTIFF
V.
TIMOTHY STRAUB, MARISSA
STRAUB, CALVIN WILLIAMS, III,
AND AMY W. WILLIAMS,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
06-6548 CIVIL TERM
ORDER OF COURT -'
AND NOW, this j day of March, 2011, following a jury verdict
against them for $1,843.82, the Defendants now seek post-trial relief to mold the
verdict. Specifically, they contend that due to a typographical error on verdict slip
question 8, the verdict should be decreased to $0. Following argument on Defendants'
motion, the court disagrees. Arguably, the error resulted in an "inconsistent verdict;"
however, the inconsistency could have cut in either direction. Regardless, to preserve
an issue for post-trial relief that issue must be raised at trial. Pa. R.C.P. No.
227.1(b)(1). Here the verdict slip was not objected to at trial and therefore any
challenge by the parties has been waived. Accordingly, the Defendants' motion for
post-trial relief is DENIED.
By the Court,
Albe H. Maslai , J.
Samuel L. Andes, Esquire
For Plaintiff
? James Goldsmith, Esquire
Thomas Lee, Esquire
For Defendants
Cain MQ„r?r
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