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Home My WebLink About96-01182 ,~ f .~ .,. i~ .~ ~ ,'. ~ .'4 i .~ ~ ~ ~I"'_' WILLIAM BRANCH and LESLIE BRANCH, Plaintiff/Petitioners . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . vs. . . CIVIL ACTION - LAW NO. 96-1182 CIVIL TERM BR&R DESIGN ASSOCIATES, a Pennsylvania partnership, Defendant/Respondent .II'fI'fIO. 1'0 COIOIL UBITIlA'l'IO. Petitioners, William J. and Leslie Branch, by their attorneys, Fowler, Addams, Shughart' Rundle, submit this Petition to Compel Arbitration between the parties, and in support thereof, aver as follows: 1. Petitioners are citizens of Pennsylvania, maint.aining their place of residence at 4 Truffle Glen Road, Mechanicsburg, Pennsylvania 17055. 2. Respondent, BR&R Design Associates is a Pennsylvania partnerShip, maintaining its principal place of business at 1839 Rudy Road, Harrisburg, Pennsylvania. 3. In accordance with Pennsylvania Rule of Civil Procedure 2128 (a), on information and belief, the partners are Cornelius Rusnov, and Sandra Buckley-Rusnow. 4. This petition is prosecuted in accordance ~ith section 501 (a) of the Uniform Arbitration Act, 42 Pa. C.B.A. 57304(a) and 42 Pa. C.B.A. 57342 (a) (supp. 1988). 5. On October 21, 1994, petitioners and respondent entered into a contract for the design and construction of a home \PHILAI\1__.' consisting ot a two-story residential dwelling house with basement, and a eemi-detached three-car garage with mudroom and guest quarters. The contract (with schedule. and other ancillary attachments omitted) is attached to this petition as EXhibit "A." R.spondent has a complete copy of the contract, including schedules and eXhibits. 6. Under the terms ot the contract, disputes between the parties may be resolved by arbitration. Specifically, the arbitration clause of the contract provides as follows: 17.1 This Contract is proposed by BR&R and accepted by OWner in Cumberland County, Pennsylvania and the parties agree that any disputes between them regarding any aspect of the Work will be finally resolved by arbitration or court action in Cumberland County, Pennsylvania. 7. During the course of construction ot the project, respondent has breached the contract at issue, by failing tCl pertorm in accordance with its terms. Specifically, petitioners have indicated that respondent's performance is materially deficient in several respects: (al Substantial structural problems have been uncovered by consulting engineers, including the lack of structural integrity in several locations; (b) In accordance with the contract, completion was required by August, 1995. To date, construction is far from complete; 2 """"__ t (c) Workmallsnip nas been materially deficient, It'esulting in over 100 separate and distinct deficiencies reported to respondent requiring remediation; (el) surcnarge. have been asserted by respondent for item. properly included in the "not to exceed" contract price; (e) Change orders were improperly processed, thereby resulting in the imposition of additional charges without prior approval, or otherwise without proper foundation for establiShing entitlement to extra payment. 8. As a result of the failure of respondent to remediate material deficiencies, including matters of structural integrity, respondent was advised that the contract has been materially breached, for failure of respondent to fulfill its contractual obligation.. Accordingly, respondent was removed from the job site' and a substitute contractor engaged. 9. On March 4, 1996, the demand was made, seeking resolution by arbitration (Exhibit "B"). Despite petitioners' demand, respondent has refused to arbitrate this dispute. WHEREFORE, Petitioners request that this Court enter an order: (a) Directing that respondent proceed witn arbitration of the dispute between the parties; (b) Mandating that the parties meet and confer for the purpose of establishing an appropriate means for selecting an arbitration panel, consisting of three persons: (i) an attorney; 3 I ...... Dalal AlIlOCUftll cOIIll'I'lnfl'lltow COII'I'L\C! /. \'1111 COII.nucnoM ~ _ eM.. ;}L:$ day of ()4,:l;:'t.I~ 1994, by .Dei beew..u Il1LLIAIC alWlCH and LULII lIUlfCK. n.t4iDI .t 231 l:1q. Drh., C...1.!.l.. '.Jlnayl"anL. 1/OU. nenl...u:c.lr r.falrJ:&d. 1:0 .. Clio "o.n.:r," pacey of th. Uue p.n, Am> .~ DIIIQ1 A.80CIArI.. .. ,..~1..&GL& ,~tDec.h!p, ....!na 1~. ~"1.~1~.1 pl.... of b...l..... ., 1839 llldy a..d., II.n1sburl. llautIhiA COIIIl.ty. '.DIl.I11v&JI1a, i1or.Lna!~.. ...6.u..s co 1I.1:10....1.y U ClIe "Coacraacor" 011 CII. '..,..1P1I1uU.s.II.' parcy of th. oell.C p.rt. Il1n1BSSInt. thac * pU1:1.. banco. ap.., .. foUava: i. 'r..i...... A. 0Wae.. h.a.a ate. cr.o~.l 0:1 ..oZ'caLn SJ. Mse tuce of lA114 dtuae.cl or dasortbe4 .. toU.....: Loe:: 10, 9. trufn. Olon 10<&4, T""""'!'. 010.. 11__10,....... 0..."1...01 Cu....1.1. 10-71...1. (tlae .hUl....). Ovuor aF". co p..ov1da Con\:ncCOr -tth . 1.&&1 dascdpClOll of the h..... a copy 01: elle lat."\: r.cocdad .ubcUvf.a1on phn of cha Pr-.1.... . oopy ot the Ovuolr'. C.reit1e.c. of tltl.. and. copy ill_ che C:our~e of .11 'lan &lid title ....~1otlons whicb apply co the Ir.-1&.... 1.1. TIla VOrl!. Com:rllCtOlr .ball uae lea .lUll lIDd .Sputh. Co f~h .11 ebo ~torL.l.. .~..1. Mad bu!lcl .. cwo (Z) .eoty 1I..L~tLa1 dWellLJlI hOlae wLth b......ne and ....i.4etooh.d 3 oar 1&I:.../..sz.oOll/pac quart.... c1ucrLlIOcl .. l:oiJ.o".: 104p .eyIe woo4 fr_ dwel1Ln& bCNH rith F..croo., "Hcban. pancry, 4LnLDlII ro_. p1_ r_. nraplaoe. uorc1.&atrV 11_. an4 3/4 b&th oa the fLue floor &lid _cn 1U1t. w:l.tb laUDdzy lIIIlltwo (2) bad:roou with b&th. on r:h.. ,.."""wl 1......1 ......vn ... orb. .c.....h a..i........" (the "'OC"'") .. ,n ch. 1ni c1&1 pc..enution of U&iI. ele.1111 ...ooLaI:8... .. ..e 10llth IIord" ..nd 11l 1:11. och.w c.mll"..._ Doc:....nca. 2. initial coneraee Prtc.' p.".6ft!!: D. o.m.l'. ap... to pay to eh. Contractor for ch. perfo~e of the tlork banf.nobow ..1: forth the ..... of Do11~. ($ ) (the "CoD~.ce trtc.") (whicb 1. 1:JIrt..r...tl rn h.. wf.thln the Oonwr'. bud50t oj! $450.000.00) 1.. <k._ ..11 10,,1:1\ iQ the Schedul.. of '''YHDes wIl.lcb rill be aetacb.d .. Schodl&1e .." her.co Uld wIl.lch ""0 .-.u.c1 o.s lol1ow., t ! bt II",." WI tl1J.n nV1ln (I) c&Lander day.. of s18J11na' th1.o conl:...ct l/h.n ordarlna che precut foundation m,an '''''n1t1a~1trn i. ~nmrl,,~. l/hen fr_lnS 1.. c0llP1.e. and roof 1& papered lIIIo.. roof ..,4 dele .h..th.!.... ...,0 c.-place Wh.n rO\lsh p1.-bin& and .,1r1ll1 are In.ull.d. .xcLU4l.na t1AUtl.d L_r level, u: my $ 2114 Dr... 3rd Dr." 4eh Draw 51:11 DT"w 6th Draw · Ba&R de.Lan ..socl.co. 1994 Exhibit IIAIf it-'U~ ~~-.- hh Dlla., Whan .ha.e~oc. vall. ax. inaeal1e4. aac1ud1na finl.bad Lowell leval. 1f any ""Aft kIn.". '.4 .'''',,1:.4nt:...111 t!oteplf1CI.d- ACco'r'cltnl ca chi. Conc~ace, ..h D..a.. IlftTLU. CllIi'riAC'r rlICB s 2. 1. C1t..I"I." O:rdar. . Own." acknowl.d... that aucllon..J.cl pcole. e4j..._ca vill b. .... by ""I.ee.a Chan", O..d'UI h_ U_ Co ci_ ... dpd b7 nwn..r ,,"I.,.,, _h p..tea edJ.......nca ... p~...udlo..izecl b7 ClIme. ....&1.. (.....h ... rlth1a th. Allow........ oudtna" OD Sc"'dule "D") 0" .. Ad41tloul 110,,11 de.elllbed 1n 0,,11."1. "I)." o.m." _."... eo P""_ Chaa&e 0"... ........... w... ocbe~.. auchodzed by COIl"&CCO", CbuI.e Oeclllu Ilb1ch u. ".queued. ht lIOe Illletundeel V1chln Chre. ()) b...1ne.. <I&,.a, .ball k c01I.Il.s.!:e4 !:eJeceed by Olm.ll and Ibe COIla-acC 1't... shall b. exCendael by ,"re. (3) clay. fOJ: prOClua11l1 U.. fo. _h nontundoHi Cbaslce Oed.Ii:. 2.1.1. The COIlCUOCO" sball p"apan CNaae Ofclll".. foe lb. 0..-.'. ..,p......_l and _.....eion _ eballlwrN ...bodllY e...loa aiDo1Ir ......... 1.. clla cIII.11" and oo...cruccion conabt.nt: "tell m. inceQt: of thU aoutnet: lIGt 1",,,"1..,tu. .,u MlJwu.&"wuL. J.n c.lt.. CUu......c. '1:1___ GJ: &11 "~J.Qq at r.Ue c,;uuL.'-..:L. cUe. the Connacco... shAll p~OlIIpCly Intoft the OwMIf, 1a wdt1l11, of 1I11lG1I' chart... .111 the cIIId&%, .lId COUCWCUOIl and .IuIU Inca-e,. wbe1I pu,":ical, co obt:aln Qwaa,,'. coca.nt: 1n vc1e1na ia ~anc. of ~ .uch .iao:r cbana... whieh oona.nt .hall DOC b. unrea.onably withhe14. 2.2 Draw Scbedule. TIuI Cona-acco:r 1.a allcJlocu..s eo e4]uec l:lIe Solla~l. of '.)'1I4n.. ~" co1=l.. wlth the dLlIln.U's_c: '''.'l..u_nc:a ot o.nae,,'. lancle". 1'.,...,1:. ue .w. DO lac." l:lIan em (10) da,.. dUE th. O\meE' e "ecelpt ot ContEacto~'. nque.e to" each d2:'aw. lacb dra" .hall conWII . ""Cineacion thae aU Wo~1o: a..I:1C11"4 tha Coua.cEoc Co such clEaw bu lMen'll..t_4 tully in accoll'daoc. vich 1:h. COlltrac:c Dcc....nta. vlell exc.pti_, if any, lI01:ad en4 .....o.....Ud for:. A h.e ..buS. of U5.00 pac d.y "rill ... paid b7 Ovnot" co Contracco:r fOll each ed4lticmal cItrj tllanefuc, UDell ,.14. XI p.,..nt: 1.a noc ~....lv.u .!thl.. ~." (l0) .&a/S &fc." th. p.,....c cSue .s.C'e, cbe eo..c:c....cor _y "CuI' .11 Wack and ell. Contract CO"'Platian Dace .hall b. at.nda4 ClIO (2) clays for each clay thae Work is noppl<l awaitlll1 p.,...ne. 2.3. P1'1o. A",ullq~ClortJll.ev1~lon. Th. Coouacc P:rice ls b..eel on cun..u: 1..... pdo.. _ u...... 1:b.." the". rill ... _ ........ in 1:b. pd... o' 1.ec 01: any oelul" ..~dal oc supplies IcOla eIlae .mien, w... quoted to ConC%accoc to. che "W:l'u", uJ: _U_Cl.., ebb c....c~.cc: 1',,1.... 'rM iJ>cr.....s 1....>: prle... do DOC l.nc1uda .n adcUtional 15t for Concr.otoE'. owrhea4 and pcottc. 5.. Aceiol. 16,3 aad Sch.dule oa." 3. Dic.et P&'YlIenc bv Lendar:. a.m.:r lluIll cl1not: that aUll&Y1Mnca du. e". COIl......"O" f." lIor:II: do_ and ..c.,,1.1. fur1Ihbad ... aad. dh...t17 1'0 eM Concuecol: by the lfoctsaae.. 11 my, vichoue me JolDdec of cIuI OInIer aIeu Ifc"esaa.... ~ _d& ..pp"opd.... p".p.,....." I_reel..... 0' the Vo,,". It ......I5&pe .ni(llll f... fo.. lnsp.cc1ons, o.mac .hall pey ell... f.... · aa&R dasian as.oclates 1994 . 2 . R-.1-i'1; 4. 1"l.o. lor CoatDlu.f.nn. ~ "otk co b. p.l'fo~d. by the Contx~tor io antioipat.d to basin wlchln torcy-five (~5) day. of the OWnar'. .cce\l~..."a of eha Con""...." Doo......U whl"h 1& axp.ct.d to b. an or about Februuy 1. 1995 (weath.r a~d hunt in, ....on p.~lttlna), avn.r will issue lotice lit Co_nCM_nO p,,_,el, ..fe.... .....h 040epua".. And the Warlc will be fully caoplated no latar than an. hundred elshty (180) d.a}'1l (the 'Contract C'OlIpletion Date") dter Nod... lit c__....."" of oo...e,.,..."l..... ."n..,c .. exta.....d. by ChaDlIe O..:der . or othaRi.a .. provid.d hueln. Tha 1I0clca o~ c-lICl_nc eball be ~compan1ed by an orlI11....1 Ceroifloaoo ot 1...__. canflmi"ll OwDar'. 84.1llder's llbk ooveras. a. p.r Arcicl. 10 hor.lnafter. 5. P1.no Includod In Contract. the link ahall be anct.d I.n .ccordenc. vt..h 1.1.. fLn.al vorldns p1...... laiehll"" by o.me.... .\McificaciOM lnitiall.d by owner, tho Kodificationa. if eny, the CeaerelCondition.. if any, the Spactel Can.u~1un., if 4ay, eos"ch." rich tho ....r........t., pureh..e orders, contractor lMtructlan. .nd color. oe1ecc1an .b..u which .ball be dW.yaxecueed, detacl .114 1111clal..\1 ...lel ..MeD, wleh eh. SoIM..loa a""...hlle! lIeuto .bell be end are ude e part of this Contract. ell of vhlcll ue b.reinaft.r call.d 'tba Contrace IlacWlUla...... 6. O~'l"r. 0 \lorl&. 1n tho ove..e Owner d.dr... ".. prlWide labor and Htarlals not includad in this Contract. OvDer uy do .0 only in .ccorclanc:a vith tha Work Sch.clul. pcol&ul,,,c.eI by Conc.....acor in .-h a _ _ ".. not dal.y th. prol"L'ess of the 1I0rk. the OWnef'. 1I0d~ is sec: forth in, Schedule .C-3. attacb.d hanto. 7. Addl "lonal !lurk. All .ch..r 110rk cmcl. ...lI9iaa. ..e.quut..d hy the OWner and not lniU.lly esc:1llllted and. asreed t.. OIL" .llow.oS for bud.. by COlltf&Ctor, including cllange. J.1I Lb.. '"'''1"' lIIlll \>rop_ af. the llo.." .oh" t , c'onatituu Additionalllafk and .hall be paid for by ewn.r e. prlWided I.n Schedule "a-l." . 8. I!:xcused Oelavs. Th. Cuut1:octOIL' shall "",e loa Ullble fa.. ...y delay in che prosecution Of completion of the Work caus.d by the .ct, Mllact, default of che Ow.r, or a. . resulc: of cl.....~e. 0" alt.....tl""'", in the pl_ and specUic.tions ...de by the Owner, Or by cl.omage by fire. .uthquake or athar c..walty, whetber insw:ad or noc. or by weael.., candi.clo....a.. by strik., v..lk. outa or any other ..cts of suppliers of labor or ..t.d.la, oYer which tba ConeractOl: ~ no control or tor whlch the Contr.....u... 1. noe "."0...11110. In...1' .uch evellC th. cilia herein fixed for the c01llpleclon of tha Wort .hilll be extanded far a period equivalent to tbe t1_ 10.., by '.....on of arq of chc CllWl.e aforeaaid. Further. a delay in the perfomsnce. of thl., CbnUacl: by th.. Coneraceor Ls excused "ban ouch I1day 15 c......cl by an 0"","" of any cown: ,0" otha" public authority. by any ,avenaaucal control. a.-egu1ations, rutrictlons or allocatlotl8 or labor, .upplia. .114 III&ter1..18 Lnst1CUC84 by aL"C. a... IINIIicip..l 0" gaverDIII.nul .gancy for any nuon what.aever. 9. Permit.: Utillti.... Ceruin peradte ancl ....oc1.aed ta.. are li.tad in Schedule C-2. Tha Owner shall provide ancl pay foIL' alactrlc, w.c.... sewer and he.tinll fual or other anergy Co be usad to COD8tt\&Ct and haat the 1I0rk durinl the course of construction. e BR4R doaign 48soclatoe 1994 - 3 - R.Q'5,l./; II .1, \IWne~ aball ..a..". ury n....u."1 -r_b1p or .....ldp.1 approvels 0" S..I::lCUvido... nae.seary for cha eout~el.oD of !:he \lark em the Pr_hea . LO. Insurane.: .Il.l.ak at LDas. The OWner .ball dautal Will ....:u..cu.. ot eM 1I0d. _bed" a policy of Bul1cla,,'. IU.. lu\IIl_. on tba Worle vlU.eh 1nsur.. .,a1nsc 10.. or _Be by tl". and aU oeller e_lIed rta'" or p.rill ln ella !t.Ill aIIlOu.DC of thla Concracc pl..- o..nel" a lIonll pl... 2'. of !:he _ at cb. 1n1<<:1al Concuoc ~lo. and OWnar' . work ""1e" polley .110111 1IIGl\1dl1, In adcUclon co the prop...ey a....u'.. lL.obll1cy 1nsuI'_e to prol:acc the Owner _ the Conel'&Ccor o\Tl.IfA .,ainse any 10u... o1allle, a4clDN1 or .uU. .1d1.r ae la" or aqw.cy for lnjurl eo paraona 01." cluag.s 1:0 P1:0".r1:y, t:be 90110:1.. to cov.r aU 1101:& incorporated. in I:ha .s".lUna, ancl sU _1:&1:'1&1. tor eM a_ ln OJ: aboue the pr...tae. wh.ther or noe ac"achad or b..:orponcecl 1'11:0 t:be dlHt1l1ft8, &ad co b. uda payable eo the puU.. h.r.co. .. l:h.1r lnl:&l:ael: ..,. ~&Z. The Concraccor 1s lII\ Illd&pa'lldenc 00111:%01.:1::0.. nda nqaot co die 1lo1'1I: &ad ahall kaap aclaquau 1l01:a.n'. c"'"P.N1&c10n i__ In, effect co p1:0c.oc Contract01l &Il4 Owll.r fr_ all .uclI e1a.1lu. 11. StlDUla.tion 0\.....111''':: U.ruo. ~4;l.&t&1,. afte.. eh. Slp1l11 ot th1a Concracc. tha Concraccor .Mll aacut. and deli...&' to the Owaar a propu "aiver of IIIlY and aU lIechan1ca' llana, Ilblell wa1'ft1: ,..., be ru.ed by ch& ownar or cM C.ouc't'actoJ: in ch. appropriac. ProthonotaJ:y'. OfUc..... ahcnra on Seh.dul. "8. . 12. CG~liance with Cod... .A"'''''iei.ona1 t-IInt:a. . '111. WOrk 'till b. duigned Co be in cOlllplLanc. wleh aptll1cab1. &w..,,_t&1 codas, nJUlac1nt111 alld r.qu1l:all.nl:8. In eh. .vanc chac &1\ U1l&IItiCl1patad l.c.rp~ecae10n or sn adlllln1seudva or 1.,1s1aciv. eban,. in any ~oLp..l1c:y or ,ovamaencal ofeUnlIIlc., coda or resuIation require a plUllblnB, al.cal"l 01.' ot:bar requlr_lIu diffn-.nt frea or ill .dd.1t10n to the provf.aIona of. c:bu CcnIeraat, Collcraaeor sMll ,Lv. 0"1181: Mclca ot IlIIH and OWex ahall COlIp.....t. Contza4t:ox for any addltional work and mac.riala raqujr.cl by the alor..ald 'reJUlac10n or lI\1Jlicipalic:y ole COl1e"actor' a usual raca under Sch.4IIl. .... 13. Subset euc:ion of lIae.rlal.... In clle _1: thae c:b. Coneraceor is unable Co obcdn tha axacc .....t.dab lpeciU.c1 011 th. plAJW' and a"acltIeaeio"" or on the options or allowance. aetachad bereco c:tu:oup tba COIlc:raccof' a orc11n&ry and. waual eoune. of aUll1>ly, th. Conl:%actor shall have tha d&ht: co substieuea I114carlab of sillilar pacum, design and quaLic:y, ln th~ Coneraocar' a aol. eUleracion. CanCractor will and..avor co make aur:e that OWner' LI avata of any auch S\lb.t1cutIon, in aclYanca, and if praccical, abtail1 Owaar'. ftlttall consant whlch dll lIlle b. uru:...-onably wicbbald. Owaar aca-l..... c:bat substitute requeau ude by OWner which have increasad. coet.a shall be pret.mdecl by OWner and flAY Ill.o incre.... concracc ci_. 14. (')wnAI"'. lla'f"ran'tl... Owner r.pr...nu r:ba~ eM Contractor'. 1ntended conatrucc10n of a lingle family r..ldenc. oa tha rra.t..s confOI:lll to tit. .ppHeahh _ ..""Ine. thac the Premises are .uitabl. for the cOll&l:r\lCclon required. and provlc1ac1 uncI.r ehe c.ms of th1. Contract; tbat the IT_La.. ue lIoe h.....1 and u. forut.d vh{nh ..n."n "ckHctonal coaes antS axp_. to vrallue the · BK&R claaiga ..,oclaces 1994 - 4 . R-')'5." .1e. fOI/ ""...e...."ei"" ohAouon; a..e OM:. 1.t p..bli.. I/oad eoC.a. Co ehA hoah... \lhlo.h taI&;! 0'1' ...y n6C .1tOY cToubl.'l".. ~nd uninr."",,",,,t'ed -.JMI..oe of v_biet.., """blMIIy and .q..J.~Qe LncLoMoeal Co tho Vork; th.c: OloIIer 1.t th. ......." of r,colld n' r:h.. ,,'arflu..i.id p.,.,.,.i......; P'h"t: 1':""1". ",roa no I.tlU:.':OJ:'ct.rJ ..cIa; I::hAc 1:.J.<<:1. L.. 1I00d an4 II&J:I..C<JbJ.&: th.e a pOl/pee...l dahe of .,.y ubu to ~ pnab.a; wc th. 4aid pr..i... i4 'r.... ^P any .~l.b~.~..; l1eR8. ......nC., .to. ..O.P' .. coo"lIpl...d by AI/eich 3; cll.c cller. u. QO ",clona, C_. of ...Uona. Oil claJ.as wkfah m.sh~ ., . L.~.# ~~. Lap&i. tb. ~Lcl.. Th. 0.... .ball, .. ki. .a,ena_, f01'cll1l1eh r_.sy ....y 1Ir....1I 01/ viol.tLoo h.reof "hLclI .., ubI: or ad... ae any 9:1... nw eva.... '&I'e'l.cula1:'ly UDd.eJ:'.t:.a.N:J.. .'Ad .p... ..... .&db. QQVena.nt., repII..eaeat100. ...4 "err_ey, her.ln conc:OlJ.n.4. 1. _rally of the ....nc. of th.f.. Cooe....,e and l:b. bu.."b 0" viola.lo.. ot _y 0'" ....n ...0.... puto",""""o by th. Conera"cor. 15 - 110 Oc.."o..."v. Coacraccor obal1 peral.t Ownar Ca iJl.tll'lcc the W02:11: .c. .:...onabl. ~i... DOC 10 lAC.C'f.... vicb. ala. po...... of aha 110&'11, but. o.me" .hAlL not be .nc:i~laci Ca keys 0" po.....lon at the l'oeil ,doc Co pa,..nc of ..ll .U1U clue .....1.11. oh1. COGe""o". Dl IfO I\IVr IHII1.L 1JIa 0WIl1lII OCCl1l'Y 01 TAIllI 1'OSSISstOS or THE woe IIFOIli VINAL PA'lMDI'1' lIAS IUIIIfADI MIl/OR t1II CtWSIlIT or c~a, 1iHlCIl CONSIIl'1' SIIAU. II IIIIIlOUU Oil tillS cCl\ftI4CI. Uf 'fIlS I'1D'r 01iNlll. IRIACIIIS THIS mclVISIOlI, HI SllAU. II DElHI]) TO IlAVI ACCIftII) THlIOIlIt "AS IS. ABJ) DOIS TIIIIIllln 118T tASa AIlI> WAIVI Alrt CLAIIIS ACA.tIlIT COIlDAC'lCl.,. A b"e6Gb 0' tbJ.. p"avido.. by ebe OWnall, sha.l.l 11. ca...idared a b1:"uch of the CORa lOt: by the OImae :ancI ohal1 olle:1c:1o lObo Con""..."o.. eo .eo. "od. ow ".~eo 1Ob~. c....""ace: oWd n..""u fco. eh. OWn.r p.ywent to" aU WOJl'lr. .x.cu.ce4, ..... any la.. auaea1a.d .t co"..ollAblo !,"diu ODd .-.... COI~(J.Ci;Of c.a,,~,..li +u OIN~ Oc.(.l.(.~;"1_ ~!l 0..."- +"'AI"~ (JJ,.j,.j'jj,~... pr'~,.. 10 ~i",J.J P~'1It<t.r."".. ~l1l- c:I'{' l~ Caftc..l..d Condlef.O'rU/IftCrll&3. in 'to L rr Coats. 1&1. t1&11 .V,"U.. that the Conla'ao~oc stlelountar. cry eouc.aled 01' lIIN8ul elonditlolW dIIl:11111 ch. aoUZ'a4 0' Qoa.~Z'uc'l:lO'D., .sw:b .... .aold.d. oW' INohiDa J:'ock, '1iUl,lUa&Ml.. M.1IJkholu. ".caz, sprtngs 0" bistorieal alltltaelel and che conceal.d o~ uauaual caaditlon n,!"i... any otbol/ _..k beyon4 <:he sc"po "t thoo ...t1.el..... "",,,10, .uch .. >lie nllOv&! af rock by bl..dnc OT.' cl:rilUnS 0" by .,.c1&l uc...Ciou, 01:' ~1Ie 1""".11.d_ of .p.cl.1 t.,.,clnp, ..u!I-u..., (u....,..I..I,oo walls 0" 42:.1" c:U.a, ae ...y n'lu1nd S.ataclm1cal. structural ar a~lIer praf..d-t conau1.t&DC, ene Cone,..."col: .h4.11 I... <:u..............<1 ........HLulI.Uy by OWner tal: .uch AdcUClo!llll Vork anel tor the ..tedab pllovUa4 .~ CoIlcraccor's IIS1Ja.1 nee. ..... .cha:rsu. a copy "e wlll~h ,,1...11 1.0. "1.I...~ho<1 as Scho4u1e "J! _" 16.1. I1pcm I1bcovuy or: >lie \ll\USual cOudlc1oD, CanU'accor shaiJ. p"ollptly Siva Own.r vrltca" IIOclc. and an .OIc1llac. fa... th<I AdcI1eian.l liol/lt, Ownec .ball haYa ch. Oi'clan ot aglleeing co Co"c:rac1:Clr pedonl1ng r:ba Add1l:1ouaJ. Vork 00 Cb. b&ais of chI asc1uc:a or of ce%lOllll&l:iq thb CoIlla'ACC if w ..tlu~s ..o"leS lner.... cll. Utl_c04 Contraec h'1ca by _.... tba t:n p.rcent (lU') , OImar sll.all S1v. chI Contr."tor w:itc.... ""clel. of bia .1.cel_ Co t.Wll&U wleh1n cen (lO) 44ys at OWner's rec.1pt at Cb. Contracter'.o naC1a.. It OWn.r elec1:s to tanlinato this Contracc, Ovruu: shall pay to cha CcmtrRCoe che ...t...l co.es ot: labor an4 _cul..1. p..rtorDlll4 and t~b.d by ConU'lICtor 1:Cl thAo date of th.. Coocnctot', . noelce Co che OWner. pl... III addLtlan.l ff.fte.n perce..e (1S.) at par Sche4u1. "." 'lb. 1;0ntu"to1:' .hail .pply allY .~.., rith tile axc.ptlon of tna inlc1al payment. ....de by tha OWner co .tucl1 p.~t ~ boa. cha Owner upaD C.aJ.na~J.on u atoneald and sball reflJll4 the axc..., II an,.. Upao cemlnacion o IR&a design .sso..1at.. 1994 - 5 - a-"j"" AA 4roe.'4L~, Own.r do.. h.r.by r..l.. and r.l.... CODereccoc fc~ any elaia "twuo.vu uu1nl o...e at this COrlene!:, If the OvIIar falle to clll17 ln n1c1llJ "l.ehln c.." (10) 4.'10 eet ,he C:oauc.o.o.'. Q01:14e, tIut CoftOaoeol', ...,. .t'" 1f'C1 Ojiltlon, .1.ct to tuat thl. Contract .. e.~in.at.d illCId Owur .lu11h liable for tl\Al PI1'"""'. ",aD t....LlIa.lon .. .... ,..HI> h...l...!>o",". Con.r.c.... she:U '1...... Ownet welcc... nocLc. of '41~ .1.ccloD. 16.2. In the .v.nt chat addlcLoaal ooncr.t./.con. 1. r.quir.d tor de.p.c foote.., or lt mar. baokfill i. r.q...lr.d tor any r..-on ~ L. b.r.in ~~t$J._coci beoaWle of al.G. con.c:li:J.ona. 0WzM# 1:l.~.b7 autM.l.,.. Cftftc".er.nJ" co ....pply aael l...t&11 the addilioaa1 eoncute/-=one andlol' -.ld1cio_l backfLll and ~:r ..r... 'Co c.olllp.~.'C. Conc.c~c..u" rur; t1... ~".c. 01 auh. .w~=loa.al ~1I'.t:I. I .ton. or b&cktJ.11 at Conenceor'. ......1 rat.. an4 ellal'l... I copy of 'Obicll .hell b. attach.d a. Sch.dule "J", 16.3. In the .vent ~t l~.1' or oth.r "C.1'1I1I or WU9Pll pric.. J........... dud.... eM ,.dod h.......... r.h. el_ thi. oontracc ... ..cillata4 UId tho l~.r 01' oth.. _tuial. an ~Ohulcl, OWIlac .11"" to. p.y the incc....d co.c .sa ~"4 ,o.:t..<1W.. .." AtrA.,hed. Own<n: -7 01....1 co loclil 1.. 1.......:11' ,.t.o. b:1 -aJ..,. . nonref\ll\dabl. pn-pl'}IIMnt ot 10. of th. 1nieial COtlalce hie. to ConCUCtOIl who vill ~. en. pr.paymonc to ~ tbe 1~1I and rftua bolel tb. l..-D.r pllle._ / J 0WIla1' o1a.. te co ...Ice a 10, pCOpl,..nt to "loell f.A" the eolC of l_h.". /--1 o.n." ol.ota Co .... ~ "i.ok o' an Laa"04.04 oo.e f~" lu.boll. WlTII!SS : 1/. Con1:e.s.stOll of Jud......nt. ... turcbA&" 4011.u~.1 to '.CU;-. o..uer'$ prolllisu to pay tho ConCllaet Pllie., upon default of any pI1lMl1l: prov1de4 tOil In Arf,lcle 2 Itcu eho pa,..nt due dee.. th. o.-c clo.. b.reby aul:horlze 4114 .mpo~.. any .rrnrney ft' ~ CoUllt of Iocorcl ot "ftD&y1~a ot .laowb.re Co app.a. tor and co .ntar J~ent 1,.1nee tho OWI1or, .t any cilia .ft.1' cA. elae. h.J:a,,( ~N ..ltb O'J:' Ylchouc . dec.La~a~lo'Cl,. 1n favo~ a' t:h. CoaclfaoooJ:. ICd suce.uor 011 a...ign.t, in the co tal IIII01mt of chi Contract hie. ..t tortb ill "rClel. 2 ab....., 'Ob1cn jUdplllne -"all ba secUll1ty 1'or and .., b. .nfo"ce" 1:0 collece allT .... which lU.yh clue ancI payable by eba OVMc uade. tho t.J:IU of this Coneract and .ny .uppleaenc o. _Ildlunt tIulreto 01' MY be clue &JUl payabl. oth.Nt.. u daaacu by the 0Wne1t 1n c..... of broach of ebb Contl:act &JUl anT suppl...nt or aman~ne ther.eo by the 0Wne1l. witb intel!.ac, cceca of suit, a full "d.... of .11 onon, vi.thou& ouy 0" -.ouU_. _ wid> ,. aclded .... . ..uonable ae:om.y'. f....; and chi OWI1or do.. hlll.by wal_ all I'ol.... all benette enel lavant.ge 01' any and all appeaL.._nr, 11.<&1. .., _pili.... 14YS of_1 stata llDV 1n forc. or hereateer 1:0 be pa.a.d. AX m no or TIll SIGIfDG OF nus COllTJACT. COlfWl'l1I1~ IllI PllOVISIOIIS FOIt J1JIlQGlrt BY CllIIRSSIOB THI OIftlDS, DO HEllDY STAtE. THAT 'IHIY 1tAV! E.UltllllGS III EXCESS or $10.000.00 AIIllI1AtLy. e JI&R design ~ssoclate. 1994 . 6 . a--}'3-'" 17.1, thb Conence b propo..d by IIl6& encl KC.,t.d by Owner In Cumb.rland County. r.naaylvanla aud ~. parti.. agr.. that any 41'VUt.. b.eveen th.1I u,lrdlnll any upact of the I/OJ;k ,,111b. fLnally 1'...1.,..4 by arllitntlon or couzt aotlon In Cuab.rland County, r.nnaylv~a. 17.2. killacaul D.oodt In Lhu of Cont.ulan. In UIU 01 sraRcine thl Articl. 11 po".r of atcorD.Y to conl... Jud...nt above, OWner .srl" that r.nn'.A~tor'. ettorney ..y hold the follovi~ .Icurlcl... 0lrc1lieaee. or oth.r collet.rel with appropriate .x.cut.d .cock pOVl%' or .ndor....nt or ,oval" 01 .rrnrnAY tn favor 01 Contractor In th. amount 01 '100.000,00 II ooll.t.ral for Own.r', ,.rloraance h.r.und.r. to be d.liv.r.d Co said attorney et the ci.. of Own~,fA Ax.cuclon hereof. 18. ("...."netton of th.l1l'rk. Con1:Uctor aIId OWaar v11111On!cor the 1101'11. clo..ly and Contraotor invic.. Owner to ,aniolpata ill pr.-dr_ 1D.I,.otlollol. Ovn4r 'e-r"u t.. ."arch. reaaollAbl. 4:!.li~'lIce in uc.ree1alnc' uuI r.pon:!.nl to ConUaotor .. 1101'11. und'T ~is Coatract pr08r...... anydel.otll. deviatlO11l1 or d.f1den"Y In l'"rfon.anc. or aatulel In the Work. COGC1:&4toc .hall llcOlllltly oou.ct Work whlch do.. not contOl'1l to the Conatructloa Doc....ata, Th. laUIa' of Ownu to inF.n1"nt /':..nc...ctor, ,ball ba cOl\llidar-.l e vai".r 01 any oleila by Owner th.uaftu lor ,dd d.f.ct, def1chnc:y or deviaclon (.xceptlng 0II1ylatent or not .adly dbcovnahl_ dA,..eeo, lf lilY) UDlII. OImar acr..a to the con.ctlon .. Addlcional 1101'11.. 11 necenary, in the .01. discr.tion 01 Contractor, Ovnar asr.... that .ny prolr... p.ysent' aade by OvD.r or 011 awa.r'a behall as ..t lonh In Artic~e 2 01 thh Contrate. ahall be de-.s la. full .nd oOllp1et. &4o.,e_. of the 1101'10 p...fom.." by /':nnt:Taccor up to th.. tLM of ..iel pay1ll.nt. allC.?1: tor tho.. elllf.ots. defid.nei.. or dav1.."io-aa _lch OWner haa adYb.cl Contraoco'1' of 1n ""itlnl ee th.. I'''.-dr''v iftApecci"n or othlnh. .. h.tain .." forth. 19. Katie. of CoarolaeiOft~ Final tnstlecetCl'l'l. bc.p.c.. .ee forth hO'1'01naftaT, the 110~k .hall b. coneld.r.d .ub.~.."tl..l1y coaplatael .b.n ic bas be.n oou.eIUot.cl in sub.eantl..1 conformance with tha plans and .p.cific.tions hud....bove .ancion.d. or 1f r''l"ind, .1>.1\ . Cartiflo.t. of OC""PAft"Y ha. been l5a....c1 or wh.n laid Vork baa p....d final il\ll'Paotlon by the _laillal. borough aT tawn.hip bulldLnI lnopeaeor. or 1."diG& lnlti~iOD. Upon oompl.tinn n' p.rlol'll&fto. of this Contracl:, Contr.cto~ .hall withln flv.,(S) day. th.r.elcer. &iv. Own.r nati~o of .aid ."b.tanttal aompl.tion &ad Ovn.r ,h.ll ~r.aft.r, withln tin (5) clay. at saic1 notio. by Contr.ctor. finally inspect the pr..ilea with d repre.enc..t1ve of Coa.CE'actCl~ and 1ldYf.:lQ ContZ'aoto1: J 1ft writlDI, of any cl.f.cta. cleficianc:iu or d.viationa in ....t.dal or labor In Vork cOIIpl.tacl dnc. UI.. 1... c. 1U1l1l'ac.e1\lD. hllur.. of Owner Co: (1) Finally tn.p..oc;. cud. (2) at..... _"to. e. afota.aid; and (3) EnUller... aaicl def.cts. .ballb. de_cl . waiver of my claila cherllaIter by Ow...., ul oa: foa: ..id d.f""t:. d.ficiency or doviacion (_".pdnl only laeent or not easily dllcovuabl. clef.acs, if any) and Owner do.. ber.b,. release Coneraotor U;U," "'I' ..,141. arloins th..r..l:r_ "hich VO\lld b4vo oooun:.d aince th. l..t inspectiou. 20. V..rr&nev~ Insoection Procedur.. Contl:'ACtor warrant. tbac for a p.riod ot: on. (1) year t:roll the cia.. o~ the oClllpl,,~lull, Cut,tr""eor will r_dy .. BR6R d.slgn ...0clat.1 1994 - 1 . R.'JS'>~ or r.place or repalr d.t.ceLv. Work or dal.ctlv. ..eerlala La tha Work. Th. Uabll1ty at I:.t\e Coneuc~... ....okr I:.t\.l. .........."" eMU II. 1J:..iI... to ehe replac...ne or "ox"r,cClon at I&id defeeclv. ue.rlal or wolL'aan.bl, and lID och.r ..1.1.... end _lloU "....."00."." .".U be aad. "pnn 0.. ...qulr... tll b. dlO1rld by eha Connacco.... bc.peeci al14 .""lwkci tr_ che &tor..ai4 WUlL'Ulty, .hall b. chip., tn'."",,, .craech.. 0'" un In tmV ..l:arLal. ua.d ia tII. ho.., that: ara noe lc,"1ud In ....Leinl co Connaceor ,...ior Co 'O....dOll; froua. pipe., brJ.o:lr. dluolor.Uon; floor .q"..ka; "aulldns aDd '"foudq, pOUDCl ..eel_ae; wal:'pa.. or ocbar elanci.n"l.. r.."ll:1nl trOll o.m.r'. fa.lJ.ou. co 00Ilcrol11141141cy; ar.d1", probl.ma, oracka III concr.te, drywall or pl..c.., brioK alL' wood: sbzlnka.. al14 oche: ..~cl...nc pxoblea>>, v~~l.=lona ID ...1..4 woo. auob ~ oabln..., doo. O~ crill; drywall nail pop., No lIUXancy .ball apply co out.lela fn..n""'llll .on.nCe .ub vork, 1/" ............,y .hall &tIlIl,. Co "._~P' o_ed by .,..ch.r eoadiclona, vlc.r ...P.... land .eeel.ment, .ie. eondlt!0n8, e..-1e.. or oeb.r IDllets. Ie Is h'"faby .~..ci aDd UDdentood thae chla .ananty appU.. only co ."ch ie_ as beal' no _nutaeeure.'. "ulL'anty e~.rtna 1111'/ Ie.. ~.llad Wielar ebb Contract. 50 ot1\U VAlI1IAlITllS; BITIIIll muss, 01 1IIItIO SIIAU. Al'l'LY TO TIllS COII11lACT. THE WAUAIIT ll!;li u:MIAUBD IIIlUU AU '~'I9lIAL to '1'IIS 0llIUI. AlfIl AU IfOT TBAKSlW.\BLI Oil ASSIGNAIlLl All!) niB 0WRKIl. DOIS IIII.IBY IUUSSLY wAIVa uy ontm WAIlIAIfn'. 20.1. In ~h.. ""..,c th.ra u. a~ ..anante4 elafeoe. In workmanah1p or lIacerlal. in the Wo~k. wiebiAche atorelaL4 oae (1). 1&&# p.~104, OVnae .hall prolllPcly &he Contractor .dcc.n notice 01 ._ and Coucrl4tol' .ball be &tloeelad tbe oPllor~Lcy to ra..dy. replae. oe e.pate c.lIa ..Ld ddaed". VOl'lc. OWner'. faLlou. to liv. Conaaceoe WY1cc.a nocLee .. &tortlaLd and Own.I". failur. co afford Coner.eeor the opportualC'l co rap lace , "epaJ." 0" C_dy che ..Lel ..f..."1.... llork Dr IUt.rlal .hall OOl\lltltute . ".I....e by Olmer of. cry c1aLa by Own.r toe ...Ld def.eel'" _u"ic1 0" _"laN.aohip. 10.'. r:onaaetoe asre.. that all unulactla.r'. Varrmti.. will PUI through co Own.r ..lth OWner'. Final P81ll'nc her.lnundel'. 20.3 . Wan-ancy servle. .ball be provided forcy- Uva (.S) dayl afe"r s.ttlement, if r.quLred, and again one (1) year after a.tc1.-.oc, Lf requir.d, unlas. cher. Is an amerganey. 20.4. awn.... -y, U Ovner .l.."., purchas.... T... (to) y""" Ko." Owner's Warranty, 21. Entire Contrace' Chanles. Ie 1. ~ntood and alnad that ch. .ntlre .gr....nt of the parch. Uo cOl1ta.1.nad Ln t:hJ.. C_=t1011 Concnoc .. duedb.d In Arelele S, A1IT OtHER llUna AGRI!MBll'rS IIQU1UD &'t A 'lIfAIICUIG INSTITUTION III!UAI't!Il SlfAU. IlK STJ1'fLZIt!JITAIIY 1lIU'tO. No cbaqea will be ude in tll. plans and Ipeelfleacions unless. Cluu... Orela" b... b_ p"ep.rad i.. vd,dq. dgned by chI Concractor and Owner, .p.cLfteally .eetl", tII. det:ail. 01 c.lIa c~le in eonoeruceion .nd eho oddie16n&l co.t eb.r..f or o...dle to be allowed alalnee the eoncract prlca. ConcractolL' reserv.s the rlcht to refue. to auba1t ..r "1'1',.0_ chang. orders vhJ.ch would nsult: in a substaDclal dilllnution of c.lIa Vo~k or .uIl.tancial lIo4tt1eatlon of ehe plans and apec1f1catLOIUI, untea. otherwls. al~eed eo by tha Cancraceol' and OWner In wriclDg. · 8R&& desl8ft assoelac.. 1994 . 8 . a-v;',;; 11 ~J ~'-..I .a ., . >:)0 1 - ifi - to( .... 1 t ~ ";:- 9 ...~-) f...., Q-' " .....;. _:1 \ <<\\\\ ,\ ',,",, '~...) . .-~ ~ :::t . .C, 0 h:\ ~. : -:"J -~ - . 1h " ,. -" ,.,\'"f\ .' " r-;? .) , . . , :;:' ~:.~ -. .0 - WILLIAM BRANCH and LESLIE BRANCH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. CIVIL ACTION - LAW BR&R DESIGN ASSOCIATES, a Pennsylvania partnership, Defendant NO. 96-1182 CIVIL TERM ORDER OF COURT AND NOW, this r-tli -,.1 day of December, 1996, upon consideration of the within motion, a rule is issued on Defendant BR&R Design Associates to show cause why it should not answer the plaintiffs' requests for admissions. RULE returnable at a discovery ~~~~~~~~~t to be i! j.~ tJ <j d' cna",i,"=L" of the undersigned on . /,,_ (1:1 tt.Lj.. t7 t".Jclnt(d-i'L ,1992-. at /;30 o'clock LJ. m. ~ (/ -r- the held in /iclS the day of By the Court. 7j- AIL J. WILLIAM BRANCH and LESLIE BRANCH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW vs. BR&R DESIGN ASSOCIATES, a Pennsylvania partnership, Defendant NO, 96-1182 CIVIL TERM PLAINTIFFS' MOTION TO COMPEL AND NOW, come the plaintiffs, William and Leslie Branch, by their attorneys, Fowler, Addams, Shughart & Rundle, and files this motion to compel the defendant to answer their request for admissions and in support thereof aver the following: 1. This litigation arises out of a dispute involving the construction of the plaintiffs' house by the defendant. 2. In the confession of judgment action filed by BR&R Design Associates against Mr. and Mrs. Branch to No. 96-1742, the Branches served 66 requests for admission. BR&R responded to the first 25, but objected to the rest as exceeding the 40 allowed under local Rule 4005-1, having previously answered three requests and some interrogatories. 3. As a result of the objection, the plaintiffs herein pared down their list and served the 18 requests for admission attached as Exhibit "A". 4. BR&R refused to answer any of the requests and served the objection attached as Exhibit "B" on the basis that it had previously answered 40 inteITogatories or requests in the other case. WILLIAM BRANCH and LESLIE BRANCH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. CIVIL ACTION - LAW BR&R DESIGN ASSOCIATES, a Pennsylvania partnership, Defendant NO. 96-1182 CIVIL TERM REOUEST FOR ADMISSIONS TO: BR&R Design Associates and Lawrence B. Abrams, its attorney You are hereby requested to admit for the purposes of this action only the truth of the following statements or opinions of fact or of the application of law to fact. The matters are admitted unless, within thirty (30) days after service of this request, you file and serve a sworn answer or an objection in accordance with Pa.R.C.P. 4014. 1. There were excessive deflections of the Georgia-Pacific Wood I Beams over the finished basement. BR&R knew about this when the house was under construction in the early fall of 1995. BR&R installed a remedial beam east to west between the I Beams under the foyer and added plywood gussets to two I Beams. Then BR&R nailed 2x4s along the sides of each I Beam to "level" t.he ceiling before applying drywall. 2. The center beam was sagging under the south side of the house when the Branchs took possession in November, 1995. 3. During the winter of 1995-1~96 and before being dismissed from the job, BR&R was aware of the unsatisfactory performance of the home's heating system, in that the second floor was too hot while the first floor was too cold at.floor level. BR&R asked the Branchs to record temperatures at various locations throughout the home for the purpose of evaluating remedial actions. Copies of the temperature recordings were given to BR&R. 4. BR&R, in writing, consented to the Branchs taking possession of the home before completion. 5. BR&R never presented an estimate for any change order to the Branchs. 6. BR&R never received written approval from the Branchs for any change order. Exhibit "A" 7, On March 3, 1995 before construction began, both BR&R partners met with the Branchs to discuss, among other things, the $450,000 budget. At that meeting, the Branchs reaffirmed the budget. The Rusnovs agreed that the house could and would be built for $450,000, Sandra Rusnov confirmed the agreement in writing. 8. In December 1994, the Branchs received an offer to purchase their Carlisle home. They discussed the timing of the offer with BR&R. Neal Rusnov assured the Branchs that BR&R would complete the Truffle Glen house by August 1995. These discussions were confirmed in meeting notes prepared by Sandra Rusnov. 9. At different times during the summer of 1995, Mr. Rusnov presented numerous reasons for the construction delay, including a "computer blow-up" in BR&R's office; the departure of Elizabetn A. Failor, a key BR&R employee; and Mrs. Rusnov's illness which forced her to withdraw from active participation in BR&R. 10. BR&R never presented cost reduction change orders for the elimination of the "knuckle"; the reduction in the length of the driveway; the reduction in the size of the basement; the elimination of the double oven in the kitchen; the elimination of the tub in the master bath; the substitution of paralams for glulams in the central roof, or any other items. 11. The Branchs supplied the stone for the pillars and fireplace foundation at no cost to BR&R. 12. BR&R told the Branchs that the master bedroom would have a cathedral ceiling. BR&R confirmed this in writing on February 16, 1995. 13. The glulam beam over the entrance to the piano and TV rooms is visibly unlevel. 14. Before remediation, the central east wall was out of plumb by approximately 3/4" in 6 feet. 15. After the December 9, 1995 meeting in their attorney's office when the Branchs expressed their dissatisfaction with the workmanship and their concerns about structural deficiencies and after receiving the Branchs' January 16, 1996 certified letter reiterating these concerns, on Janudry 26, 1996 Neal Rusnov wrote to contractors stating, "Unfortunately, BR&R has nm into a slow payment situation at the Branch residence largely due to our own CERTIFICATE OF SERjlIC8 AND NOW, this 7th day of october, 1996. 1, Mol ry M, Prlc". hereby certify that I have served a copy of. the Request for Admissions by mailing the same by United "tat-ell mal I. POf.lt,l'Je prepaid, addressed as follows: Lawrence B. Abrams, Esquire Rhoads & Sinon P.O. Box 1146 Harrisburg, PA 17108-1146 _~J:;;"" .~...~~....... ~. , I l!r' ( , f , . (: C...., - , l. ~ ~ I ~ I ~ i 0, .~ " ~ r,: - ,'1 I ( " ' , " J I I i ,., I . j I I ... I .. N . :!l I I !~ I I . I I I I i ~ .~ , .S ~ S ,., , I !j)~ I .... Q I J .... ~ t-4 II Ii - j !j' ....~ ~~~Il Ilj$f~i I 'ol~~:3:J I I~ I , ~ I~~~~g I III '" ...., I ! III E a:! I I . . I I I I I I ............... CRRTIPICATR OF SERVICE I hereby certity that on thiS~~ day ot March. 1996. a true and correct copy ot the toregoing "preliminary Objections" was served by means ot United States mail. tirst class. postage prepaid. upon the tollowing: John B. Fowler, III, Esquire Fowler. AddamS, Sh'lghart &. Rundle 28 south Pitt Street P.O. Box 208 Carlisle, PA 17013 CI-l.rl tJi/,t! I~ Carol A. Buck ... . WILLIAM BRANCH and I LESLIE BRANCH, I Plaintiff./ Petitioners I I V. I I BRAR D!SIGN ASSOCIATES, I a Pennsylvania partnership, I Defendant/Re.pondent I IN THE COUR1 or COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-1182 CIVIL TERM I. RlI D.'B~AMT'. .RlLIMI.ARY OBJ.CTIO.. TO 'LAI~I"'. '.TITIO. TO COMPIL AABITRATIO. ORDER ',1 "'"I AND NOW, this ~J ,-' day of June, 1996, after careful consideration, Defendant's Preliminary Objections in the nature of . demurrer to Plaintiffs' Petition to Compel Arbitration is GRANTED. Plaintiffs' Petition is hereby DISMISSED. By the Court, . ( , " l'-.At H rold B. Sheely, , John B. Fowler, III, Esquire t..".,.J.. ",,'.<1,. (,li'1j.~.._ Lawrence B. Abrams, III, !squire . Isld 1I'''''';1II'''''J',1 ... 'ii' h~l",\j- (J ,t. ",' ~ '.. ' ,.. ,.;. '."''''l ..'..... ~;. "'I'I:J' '1" . ",::3 -",' '1-" I c, .-.~ iu.;;ill) \:_,-...., -' - , '..' 1.1.J,_,.,.>_.I~'_.,..J :., l,t -u -"I ' '0' -Tl"". I - ;J;j jj\Jj i';J .. ... WILLIAM BRANCH and I LESLIE BRANCH, I Plaintiffs/ Petitioners I I v, I I BR'R DESIGN ASSOCIATES, I a Pennsylvania partnership, I Detendant/Respondent I IN THE COURT or COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO, 96-1182 CIVIL TERM IN RBI DB'INDART'S 'RBLIMINARY 08JECTIONS TO .LAINTIPP'S 'BTITION TO COMPIL ARBITRATION 8IPO.. SHBILY, ',J., HO"IR. J.. AND OLER. J. This matter comes before this Court on Defendant's Preliminary Objections to Plaintiffs' Petition to Compel Arbitration. We heard argument on this matter on May 29, 1996. FACTS Plaintiff commenced this present action by filing a Praecipe for Writ of Summons on March 4, 1996. As of this date, no complaint has been filed. On March 18, 1996, Plaintiff filed a Petition to Compel Arbitration. The petition alleges that Petitioners and Respondent entered into a contract for the design and construction of a home. (Pl.'s Complaint at para. 5). The petition alleges that the contract provides as followsl 17.1. This Contract is proposed by BR&R and accepted by OWner in Cumberland County, Pennsylvania and the parties agree that an}' disputes between them regarding any aspect of the work will be finally resolved by arbitration or court action in Cumberland County, Pennsylvania. ~ at para. 6. Petitioners further allege that during the course of construction of the project, Respondent breached the contract at issue by failing to perform in accordance with its terms. ~ Petitioners request that this Court enter an order , . NO. 96-1182 CIVIL TERM directing that Respondent proceed with arbitration of the dispute between the parties. Defendant BR&R Design Associates filed Preliminary Objections to Plaintiffs' Petition to Compel Arbitration on April 1, 1996. DISCUSSION Defendant BR&R Associates raises two preliminary objections to Plaintiffs' Petition to Compel Arbitration. First, Defendant alleges that Plaintiffs' Petition should be stricken for failure to conform to Pa.R.C.P. Section 206.1 - 206.7. Secondly, Defendant alleges that Plaintiffs' Petition should be dismissed for failure to state a claim upon which relief may be granted because Plaintiffs have failed to dem~nstrate that the contract requires the parties to move to arbitration. We will first address Defendant'e allegation that Plaintiffs' Petition fails to conform to Pa.R.C.P. Section 206.1- 206.7. The docket indicates that Plaintiff filed a Praecipe for Writ of Summons on March 4, 1996 before filing the Petition to Compel Arbitration on March 18, 1996. Furthermore, according to the Uniform Arbitration Act, Except as otherwise prescribed by general rules, an application to the court under this subchapter shall be by petition and shall be heard in the manner and upon the notice provided or prescribed by law for the making and hearing of petitions in civil matters. Unless the parties otherwise agree, notice of an initial application for an order of court shall be served in the manner provided or prescribed by law for the service of a writ of summons in a civil action. 2 -. NO. 96-1182 CIVIL TERM 42 Pa.C.S.A. Section 7317. Thus, Petitioners corr.otly initiated this aotion in either cas. because they filed a Praecipe for Writ of Summons and filed a petition which conforms to the Uniform Arbitration Act. Aa to Defendant'. second preliminary objection, when oonsidering a preliminary objection in the nature of a demurrer, "the Court must aocept as true all well-pleaded inferenoes that may be drawn from those facts." O'Brien v. TownshiD of RalDho, 155 Pa.Commow. 337, 340, 646 A.2d 663, 665 (1994). A preliminary objection in the nature of a demurrer should only be granted in cases that are free from doubt. Britt v. Chestnut Hill Colleae, 429 Pa.Super. 263, 271, 632 A.2d 557, 560 (1993). Defendant argues that Pl~intiffs have not pled facts sufficient to demonstrate that BR&R should be compellsd to arbitration. In making this argument, Defendant interprets provision 17.1 of the contraot as a forum selection and not as a clause which binds the parties to arbitration. Defendant also alleges that it is premature at this stage to choose another forum over another. Provision 17.1 of the contract provides that any dispute "will be finally resolved by arbitration or court action in Cumberland County, Pennsylvania." A plain reading of this provision indicates that disputes may be resolved in either forum. This Court fails to see how that provision rises to an explicit agreement to arbitrate to the exclusion of court action. 3 . . NO. 96-1182 CIVIL TERM Whether or not arbitration i. the preferred forum in Pennsylvania i. incon.equentia1 to the matter at hand because arbitration agreement. are to be .trictly con. trued and cannot be extended by implication. Emmaus Mun. Auth. v. Eltz, 416 Pa. 123, 125, 204 A.~d 926, 927 (1964). At this early stage it is premature to rule that this ca.e .hould be compelled to proceed by arbitration. More importantly, the contract provides for options but doe. not mandatorily require the choice of one forum over another. Thu8, taking as true all well-pleaded facts in Plaintiffs' Petition to Compel Arbitration, Plaintiffs have failed to allege facta .ufficient to require that this case must proceed to arbitration. Defendant'. PreliDunary Objections are granted and Plaintiffs' Petition to Compel Arbitration is dismissed until more facts of the ca.e are developed and it is certain that arbitration is the correct forum to decide the present dispute. ORDER AND NOW, this j/~d day of June, 1996, after careful consideration, Defendant's Preliminary Objections in the nature of a demurrer to Plaintiffs' Petition to Compel Arbitration is GRANTED. Plaintifts' Petition is hereby DISMISSED. John B. Fowler, III, Esq. Lawrence B. Abrams, III, Esq. By the Court, Is/ Harold E. Sheely Harold E, Sheely, P.J, 4 negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings are admissible to explain or vary the terms oi.' the contract." Halein v. LaSalle Univ., 432 Pa. Super. 476, 481, 639 A.2d 37, 39 (1994), citinq McGuire v. Schneider. ~, 368 Pa. Super. 344, 349,534 A.2d 115,117-18 (1987), aff'd, 519 Pa. 439,548 A.2d 1223 (1988). Thus, Plaintiffs cannot request this Court to ignore the express and clear language of the Contract. In the present case, the language of the Contract expressly, clearly and unequivocally states that disputes between the Branchs and BR&R can be resolved by court action. Also, since the language at the contract is unambiguous, no prior oral or written agreement can vary BR&R's right to have this dispute resolved by court action. Furthermore, it is well established that arbitrability ot an issue is to be determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally. PBS Coal. Inc. v. Hardhat Min.. Inc., 429 Pa, Super. 372, 378, 632 A.2d 903, 905 (1993). To ascertain the intent at the parties, a court must first look to the four corners of the document -- the express language of the contract. IsL.. Thus, absent an express agreement between the parties to submit their - 7 - disputes to arbitration, a court mav not comDel arbitration. Dilucente CorD. v. pennsvlvania Rootina Co.. Inc., 440 Pa. Super. 450, 456, 655 A.2d 1035, 1038 (1995) (emphasia added). In other words "agreements to arbitration are to be strictly construed and should not be extended by implication." Emmaus Mun. Auth. v. Eltz, 416 Pa. 123, 125, 204 A.2d 926, 927 (1964). With discovery only just begun, Detendant believes it to be premature tor it to commit to one forum over the other just now. And the contract doesn't require it to do so now. The plain language ot the Contract provides the parties with alternatives. Theretore, the Plaintitts may not restrict Detendant to only one ot two alternatives. The express language of the contract between the Branchs and BR&R states that disputes can be resolved either by arbitration or bv court action. provision 17.1 does not require arbitration. Instead, the intent at the parties is clear that the parties are not bound to arbitration. At best, provision 17.1 is nothing more than a forum selection or choice of law clause since it explains that disputes will be resolved by "arbitration or court. action in Cumberland Countv. PA." ~ Provident Mut. Life Ins. Co. of PhiladelDhia v. Bickerstaff, 818 F.Supp. 116 (E.D. Pa. 1993). Thus, the clear language of this provision should not be extended as to require arbitration. - 8 - ~I'''IO_' The October 1994 contract required completion of construction by August 1995 -- a date which was selected by, and deemed teasible by BR&R with, ot course, the concurrence ot the plaintifts. August, 1995 came and went; however, the home was tar from complete. Indeed, to this day, BR&R still has not fultilled its contractual undertaking. Instead ot devoting ettorts toward completion, and specitically, remediation ot the structural problems and deticiencies, BR&R has created an array at "surcharges" seeking additional payment tor items which were properly included in the original "not to exceed" contract price. BR'R then proceeded to unilaterally create an atter-the-tact paper trail, consisting of "Change orders", in ostensible justitication of additional charges, even though the "change orders" had not been processed prior to construction. Numerous amicable etforts were expended by the plaintiffs in attempting to obtain compliance by BR&R at its contractual obligations, especially the deticiencies regarding structural integrity. BR&R retused. Accordingly, plaintiffs had no choice but to remove BR&R from the job site and engage a substitute contractor to ettect completion. On March 4, 1996, a demand was made by plaintifts to invoke the arbitration clause in the contract, as an alternative means to -2- ~'ttllO_1 resolve ~he dispute. The contract provision providing for arbitration notwithstanding, BR&R declined. On March 18, 1996, a petition to compel arbitration was prosecuted by the plaintiffs. In response, BR&R filed preliminary objections, which are presently before the Court. ... UGml1I1I'I' 1. 'ailure to conform with Pa.R.Civ.P. .206.1-206-7. Defendants apparently are contending that the Petition to Compel Arbitration should be stricken because, at the time it was prosecuted, "no case yet exists" (defendant's Brief, p, 4). Defendants then proceed to claim th~t plaintiffS should have commenced its ac~ion in accordance with Rule 1007, either by filing a praecipe for writ of summons or a complaint. This argument is a classic non sequltur. The action was indeed commenced by summons, filed on March 4, 1996, and served by the Sheriff in due course shortly thereafter. See Exhibit "A." Thus, defendant's contention that "no writ of summons or complaint was tiled by plaintiffs" is simply wrong. In addition, defendant's notion that a petition to compel arbitration "cannot stand on its own" (defendants Brief, p. 5) is also incorrect. The issuance of a summons or other process enumerated in Rule 1007 is not required as a prerequisite to compel arbitration. -)- ~".ln I In Pennsylvania, a~bitration is governed by the Uniform Arbitration Act, 42 Pa. C.S.A. 51301 .t.t 1lI.lil. The Uniform Act governs common law (such a. American Arbitration Association) as well as jUdicial arbitration conducted under the auspice. of Pa.R.civ.p. 1301-1313 and 42 Pa. C.S.A, 57361. Thus, the .tatutory provision relating to the procedure for compelling arbitration, applies to both statutory and common law proceedings. The statute unequivocally states, in relevant part, as followsl On application to a court to compel arbitration made a party showing an agreement de.cribed in Section 7303 [relating to validity of agreement to arbitrate] and a Showing that an Clpposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issues so raised.... 42 Pa. C.S.A. S7304{a) (1982). ~ 4la2, Patent v. Hanover Ins. ~, 417 Pa. Super. 351, 612 A.2d 517, 519 (1992). The Uniform Act is designed to be self-executing as an independent proceeding, without the need to invoke collateral process, such as a summons or complaint. Cassidv v. Kevstone Ins. ~, 322 Pa. Super. 168, 469 A.2d 236, 239 (19S3). In fact, the Uniform Act itself provides, in relevant part: [A]n application to the court.. . shall be by petition and shall be heard in the manner and upon the notice provided or prescribed by law for the making and hearing of petitions in civil matters. Unless the parties otherwise -4- ~1'''~1 agree, notice of an initial application for an order of court shall b. served in the manner prQvided or prescribed by law for the s.rvice of a writ of summons in a civil action. 4~ Pa. C.S.A. 57317; ... Alag, Kevstone Wire' Iron Works. Inc. v. VanCor. Inc., 345 Pa. Sup.r. 537, 369 A.3d 758, 759 (1976). This procedure was precisely what transpired in the instanc. case. ~. Defendant's Failure to Demonstrate That the Contract Reauires Arbitration. The essence of defendant's notion is that the contract at issue does not require the parties to seek arbitration as a dispute resolution ..chanis.. The op.rativ. provision is as followsl 17.1. This contract is proposed by BR&R and accepted by the owner in Cumberland County, Pennsylvania, and the parties agree that any di.pute between th.m reqardinq any aspect ot the work will be finally resolved by arbltratioD or oourt aotion in CUmberland County, P.nnsylvania. (emphasis supplied) Def.ndant'. pedantic iteration of rUdimentary contract principl.. regarding "clear and unequivocal" meaning of contract provision. provides little help toward resolution of the issue pr.sently before the Court. Si.ilarly, platitUdes regarding "the lack of admissibility ot oral testimony or prior written agre...nt." is squally irrelevant. No such assertions have been made that would require the court to consider extrinsic evidence in -5- ~''''IO_' construing the arbitration provision as set torth in section 11.1 of the contract. The proper starting point is as defendant has suggested, namely, the arbitrability ot an issue is to be determined by the intention of the parties, and that the court must look to the four corners of the contract in the first instance (defendant's Briet, p. 1). with this as the starting point, the contract of course, provides for dispute resolution ",..by arbitration or court action...". Thus, the objective manitestation of the parties' intention is in recognition that arbitration provides an acceptable torum. Had BR&R regarded arbitration as unacceptable, the facile solution would have been to eliminate "arbitration" as a provision. To the contrary, the only objective manifestation by BR&R is that arbitration is an acceptable forum. Parenthetically, the arbitration provision appears in the contract which was "proposed by BR&R" (contract, !11.1) - and n2t by plaintitfs - which BR&R is now attempting to disavow. Which forum should be mandated by the Court? Arbitration or litigation? since l22.th parties indicated that either forum is acceptable, resolution of the issue is found by reterence to binding authority in the torm of decisional law, ~manating from the courts of the Commonwealth. The inquiry should commence with -6- ~1t.to_1 reference to the teaching of the leading and oft-cited decision by the supreme Court in Fliahtwavs CorD. v. Kevstone HelicoDter CorD., 459 Pa. 660, JJ1 A.3d 184 (1975), in which Justice Pomeroy observed I By now, it has become well established that "[s]ettlement of disputes by arbitration are no longer deemed contrary to public policy. In fact, our statutes encourage arbitration and with our dockets crowded and some jurisdictions congested, arbitration is tavored by the courts" (citations omitted) . This concept is of long standing. Of particular significance to the instant case is the observation of the Supreme Court in Borouah of Ambridae Water Authoritv v. Columbia, 458 Pa, 546, 328 A.3d 498, 501 (1974)1 Where parties of equal bargaining positions mutually agree that their tuture disputes... be determined by arbitration, they should be bound by that provision when the dispute in fact arises, and not be permitted to avoid the consequences of such action by specious challenges which allegedly questions the validity of the contract itself. This is precisely what BR&R is attempting in the instant case. Having selected arbitration as an acceptable forum, BR&R should not be permitted to avoid the consequences of its choice, by asking this Court to rewrite the contract (which it initially drafted) by -7- ~'1"..1 seeking judicial deletion of an op~rative provision. It is recognized that arbitration is the favored forum in this Commonwealth I The Supreme Court of this Commonwealth .. . aatter of pUblio polioy, favor. the settlement of di.putes by arbitration to promote swift and orderly disposition of claims. (emphasis supplied) Elkins , Co. v. Suolee, 371 Pa. Super. 570, 538 A.2d 883, 885 (1988), citing Waddell v. Shriber, 465 Pa. 20, 348 A.2d 96 (1975). The wisdom behind the public policy is clear -- as articulated by the court in Boulevard Assoc. v. Seltzer PartnershiD, Pa. Super. ,664 A.2d 983, 987 (1995)1 Alternative dispute resolution is economical in terms of time, expenditure of judicial resources and transactional costs. Limited judicial review also imposes finality in a contested matter. In sum, BR&R indicated that arbitration was acceptable. Public policy in this Commonwealth favors arbitration. Accordingly, detendant's objection to arbitration simply cannot be sustained. %II. COBCLU8XO. Defendant. s tirst preliminary objection essentially raises specious procedural contentions. First, "the governing practice as embodied in the Uniform Arbitration Act eypressly authorizes the -8- ~tteuo_' imposition of arbitration via petition independently, and not as a corollary to a summons or complaint. However, even if euch were the case, plaintiffs "complied", thus rendering this objection a .non .equltur. With regard to the second preliminary objection, it ls recognized that the operative provision at the contract prescribes arbitration or court action. The Objective manifestation of both parties is that arbitration is an acceptable forum. Defendant who drafted the contract -- could have avoided arbitration by simply eliminating this provision. Having embraced arbitration, defendant cannot be heard to say that it somehow never intended to arbitrate. Finally, since arbitration is the favored forum as a matter of public policy for dispute resolution -- a policy unequivocally articulated by the Courts of the Commonwealth -- the arbitration provision should be enforced. Defendant's preliminary objections should be overruled, WILLIAM A. ADDAMS Supreme Court I.D, No. 06265 FOWLER, ADDAMS, SHUGHART & RUNDLE 28 South pitt Street P. O. Box 208 Carlisle, PA 17013-0208 ~:~7):4~0' Attar s for William Branch and Leslie Branch -9- - lr. r- !:..-; <-..= l~ .. :')c'" - ',.', ,.., ~' ~ ;:, ( ... ~.~ .;:,' <<~ .,. c. ... 'J . , ,~ c'",; . 0:> 1-' 0"1111 (.J ~:'l.. <,;;. :.j ", ,-') C <.I' i:_l , I I . Jl1RrSDICTION AND VENUE 4. This is an action against a partnership prosecuted in accordance with Pennsylvania Rule of Civil Procedure 2128(a). 5. Liability is predicated upon causes of action arising from breach of contract, breach of express warranty, breach of the duty of good faith and fair dealing, negligence, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S.A. S 201-1 ~ ~" all arising from the improper design and inferior construction by defendant, of a two-story residential dwelling house. 6. Venue lies within this judicial district in accordance with Pennsylvania Civil Rule 2130(a), as well as Section 17.1 of that certain contract designated as "BR&R Design Associates Construction Contract" ("Construction Contract") dated October 21, 1994, appended as Exhibit "A." I II. STATEMENT OJ' FACTS ' 7. On October 21, 1994, the parties to this proceeding entered into a contract for the design and construction by BR&R of a two-story residential dwelling house with basement and a semi- detached three-car garage, with mud room and guest quarters on a building site owned by the Branchs at 4 Truffle Glen Road, Mechanicsburg, Silver Spring Township, Pennsylvania. 8. The Construction Contract, which forms the subj ect matter of this dispute, essentially provided for the design and PULEOALI 110QloIJ '/1 (<lBPZOll,\oi:PDI -2- . construction by BR&R of a custom home, A signiflcant aspect of the inducement to the Branchs tQ accept and enter into the Construction Contract was the opportunity to use the ostensible architectural, engineering and interior design ski 11s and expert ise as represented by the two principals of BR&R to design and construct this home. The Rusnovs expressly represented that since they possessed the dual capability of design and construction within the same firm, substantial advantage would result in that the Branchs could rely upon a high level of compatibility between the two disciplines and ultimately obtain a fine residence. 9. The Construction Contract expressly identifies BR&R as the "design/builder," which is consistent with representations by , ' defendant, holding itself out as posseSSlng special skills and the necessary expertise for construction of custom "design build" homes. As a result of the Rusnovs' assertions regarding competency and expertise in the design and building of custom homes, plaintiffs were induced to reasonably expect that defendant possessed the capability to fulfill its obligations in a good and workmanlike manner. 10. Its self - touted expertise in design/building notwithstanding, BR&R's performance in the design and construction of the dwelling was materially deficient in many respects, In addition, there were substantial structural problems in the dwelling, including the lack of structural integrity. P"LEGAL. Ilo.lll4) 'Jl lJ8PzOlt.WPDI -3- ~ ~ ~ 11. BR&R received actual knowledge regarding the structural deficiencies in the form of notification by the Branchs in December, 1995 and in reports it received prepared by Roger J, Olson, P,E., of January 22 and February 19, 1996, Robert J. Buchter, P.E., of March 26 and September 22, 1996, Paul M. Wehner, P.E. of November 4, 1996, and Robert Loftin, P,E. (BR&R's engineer) of October 25, 1996. 12. As a result, BR&R was apprised in late 1995 and continuing through 1996, that substantial structural deficiencies in the construction and design were extant. 13. After receiving actual notice, BR&R refused to remediate the deficiencies in derogation of its obligations as contained in the construction Contract. 14. The design and structural deficiencies and lack of good building practices include: a. The builder failed to satisfactorily size and install structural members in various parts of the home. b. In the crawl space the center support beam had a deflection of over one inch. c. The Den floor was deflected near midspan. d. The floor joists under the TV/Exercise room were overstressed in shear and deflection in the area where additional support beams in the crawl space did not extend to the exterior wall, 5IULEOAL. 110814) vi (JBF'ZJllJ JiPDl -4- 4 .. .... e. The dining room floor was deflected resul t ing from applied loads from upper floors as well as transferred roof loads from a valley rafter, which was installed without adequate support below, f. The bearing wall which separates the kitchen and mud room was improperly installed without support below. g. The bearing wall was inadequately supported by the WI33 floor joists only. h. The kitchen floor rebounded when walked upon. i. The wall along the western basement stairs did not line up with the foundation wall below, and therefore it imparted loads to the floor joist that was adjacent to the wall. j. This wall is on a load path which carries roof loading from the valley rafter above to the third floor loft. The floor joist was not designed to carry such a load, resulting in inferior construction. k. The atrium wall of the first floor at the patio doors from the great room was constructed out of plumb by 3/4" in 6 feet. 1. The main exposed glulam beam supporting the second floor was overstressed for both positive and negative movement at the span over the dining room and the bearing wall between the dining room and foyer respectively. m. The kitchen cabinets were installed before the original pine flooring was installed which created an unsatisfactory toe kick height at the base of the cabinets. PH:'EGALI 1l0e141 '/1 (JBFZQ1! .WPO} -5- 4, n. The pine floor throughout the first floor was improperly installed, containing separations at the tongues and grooves, Some of the tongues were completely separated from the grooves. In addition. some of the edges of the grooves had broken because the flooring had been installed upside down. o. On the ser:ond floo~, due to improper installation of the floor leveler, the floor sloped upwards toward the wall. As a result the bedroom door has a gap under it when closed, but drags and gets hung up on the carpet near the wall when opened. p, The vanity cabinet in the boy's bedroom consisted of a 36" wide unit which was modified to fit into a 35" opening. As a result, the drawers to the cabinet, when opened, hit the bathroom door trim, q. On the third floor the valley rafter was framed into the wall of the loft but did not extend to an exterior wall. As a result of this inferior construction, the valley rafter imparted roof loading to the interior wall which created the deficiencies as set forth in e above. r, The special roof truss was just resting in a metal hanger but with no nails attaching it. s. Two of the exposed roof rafters in the open center of the house were installed out of parallel with the remaining rafters and are at a different spacing, t. The exposed beams on either side of the living room under the main trusses are visibly not level, PHLEOAL: uaQHl ,It UBPZQ1! ,WPO) -6- . . u, The doors to the two bedrooms were out-of-square and had cracks in the drywall at the corners due to the required jacking in the crawl space. The doors and wall appeared to have been installed to compensate for a deflected floor since the door frames were way out-of-square after attempting to level the floor. v, The strike plates on the door jambs were replaced due to being the wrong type, The new strike plates were a different size, leaving unsightly gaps when installed. w. The plumbing under the vanity in the girl's bedroom appeared shoddy with respect to the openings in the drywall and the supply piping elbows at the base of the vanity cabinet. x. The exterior flashing for the cedar siding was improperly installed, which would allow water to get behind the flashing and into the wall cavity. Caulking was used on the flashing which would require frequent maintenance. The bandboard at the base of the wall outside the kitchen was improperly installed, without any flashing. y. The bandboard on the rear of the garage extended beyond the face of the wall below and created an unusual corner trim for the siding. This situation was caused by the floor joists for the finished room above the garage being too long and not being cut. z. The grading under the rear deck was unfinished. It did not provide positive slope, allowing water to accumulate at various locations, PIILr.GAL: I10iJUI 'J1 (JilF::Oll,WPOI -7- . aa. The hot tub installation and surrounding deck were not complete, bb. Walls were built to compensate for improper deflection of the floors, but without correcting the source of the problem, cc, Members were installed to attempt to create a level ceiling, even though the framing itself was not level, dd. The load paths for the structural framing were not clearly defined, causing some of the floor deflection problems and subsequent repairs. ee, The allowable structural capacity of the Georgia Pacific joists had been exceeded in six distinct areas of the h~use, ff. Under the maximum live loads dictated by the BOCA National Building Code, the main beam spanning the living room was overstressed by 33 and 150 percent. The first floor framing joists under the mud room were overstressed by 135 and 46 percent. The first floor framing joists under the TV room were overstressed by 64 and 17 percent. 15. BR&R refused to remediate the substantial structural and other deficiencies as set forth above in direct violation of its representations and warranties as set forth in the Construction Contract and as mandated by the law of this Commonwealth regarding new construction. 16. The contractual undertaking to remediate construct ion deficiencies which BR&R is violating provides as follows: 20. Warranty: Insoection Procedure, PHLEGAL: .1iJlUtJ vl l~aF<:lll: WPDI -8- Contractor warrants that for a period of one (1) year from the date of the completion, Contractor will remedy or replace or repair defective work or defective materials in the work, 17. Having received actual knowledge of substantial and material defects in design and construction, plaintiffs have properly withheld further payment to BR&R. 18, The Construction Contract (Section 4) required completion of the dwelling by August 19, 1995, On or about December 17, 1994, plaintiffs entered into an agreement of sale for their former home, which provided for settlement on July 29, 1995. Prior to entering into the agreement of sale, plaintiffs obtained assur.ances from BR&R that their new home would be completed by August 1, 1995. 19. By August 1, 1995 construction was by no means complete. BR&R refused to recognize its responsibilities for remediation and completion, all of which constitutes material breach of its obligations under the Construction Contract, 20. Performance by defendants was inferior from the very outset. In accordance with Section 4 of the Construction Contract, construction was to begin by February, 1995. At that time, and by its own admissions, defendant was behind schedule and apparently overbooked with other non-related construction projects. As a result, construction did not commence until early April 1995. In addition, Sar.dra Buckley-Rusnov, who held herself out as a civil engineer, responsible for the overseeing of the actual PltLEOAL, UOU-Il vi (.;IBPZOli .WPDl -9- , construction, r.eased to participate 1n the construction, in material breach of her representations and assertions which formed an inducement to plaintiffs to enter into the transaction, Shortly after construction began, Mr, Rusnov informed the plaintiffs that Mrs. Rusnov was unable to continue her involvement with this project. During the entire term of this project, Sandra Rusnov was involved only with the selection of interior paint colors and nothing more. 21. On November 22, 1995, plaintiffs took possession of the premises, almost four months after the promised completion date. Even though the contract was not complete, BR&R expressly consented to commencement of possession of the premises by the Branchs by indicating at '15; "Contractor consents to owner occupying and taking possession prior to final payment." 22. In addition to the serious structural deficiencies as set forth above, workmanship was also materially deficient, resulting in the enumeration initially of over 100 separate and distinct areas of inferior, sub-standard and unworkmanlike construction, which was reported to BR&R, which it refused to correct. Lists of deficiencies were furnished to BR&R on at least three separate occasions. 23, Rather than fulfill its contractual obligations to complete the home, and remediate structural and other deficiencies, BR&R has refused to complete the project, (lI(LEGALI 1108141 v1 (JBPZllll.WPOJ -10- . . 24, Apparently, cognizant of the fact that the design and construction have been materially deficient, resulting in excessive actual or anticipated remediation expenses, BR&R has fabricated fanciful and unsupported surcharges, even though the items represented thereby were properly included in the "not to exceed" contract price, as originally negotiated and which is embodied in Section 2 of the Construction Contract, 25. Inflated and truncated charges have been asserted by BR&.R, ostensibly for change orders and surcharges, as aforesaid. In this regard, the Construction Contract provides a specific and orderly method of processing change orders: 2.2 Chanqe Orders. Owner acknowledges that authorized price adjustments will be made by written Change Order from time to time as signed by Owner unless such price adjustments are pre-authorized by Owner.. ,. 26, In addition, the Contract provides: 2.1.1 The Contractor shall prepare Change Orders for the Owner's approval and execution..., 27, The purpose of both provisions is to assure that each and every contemplated change is authorized, understood by both parties with concurrence on pricing, These express provisions notwithstanding, BR&R failed to prepare timely change orders and to obtain plaintiffs' prior written approval. Instead, BR&R prepared an array of truncated, after-the-fact "change orders" which were submitted to plaintiffs, in bulk, on December 9, 1995, well after PIILEGAL; UOflU) vI IlSFZill! .WPOJ -11- . the underlying controversy had surfaced and all in direct violation of defendant's undertakings under the Construction Contract. 28. The Construction Contract provided for a periodic payment schedule predicated on achievement of levels of completion. Each "draw" is depicted at Schedule A to the Construction Contract entitled "Residential Dwelling Drawing Schedule". 29. At the time that the substantial deficiencies in design and construction were discerned, six of the eight draws had been paid by plaintiffs. In an effort to seek amicable resolution in good faith, the seventh draw was tendered to counsel for BR&R for safekeeping and delivery, on condition that BR&R complete the contract and remedy defective work within a reasonable time and without delay, The good-faith offer, dated February 5, 1996, is appended at Exhibit B. 30. To assure that any issue of payment was removed from the controversy, counsel for the BR&R was notified of the conditions under which he was authorized to release the seventh draw and of the provisions for payment of the eighth and final draw as soon as work was substantially completed. Notwithstanding that payment of the remaining draws was provided for, BR&R disregarded its obligation to complete the construction. The notification, dated February 8, 1996, is appended as Exhibit C. 31. BR&R was formally notified of the need to remediate the numerous and substantial structural deficiencies which BR&R refused to correct. A copy of the notification dated February 26, 1996 is PIIL&:QAL, IilOilH) '/1 I.2BP:IJll WPOl -12- . . attached at Exhibit D. Accordingly, plaintiffs were obligated to engage substitute contractors to complete the home and to remedy the structural deficiencies, at substantial cost and as a direct consequence of defendant's breach, 32. Over a period of approximately two years, the plaintiff engaged contractors and engineers who remediated 8R&R's inferior, shoddy, and structurally deficient work and completed the home, thereby incurring substantial expense and inconvenience, After recei ving a professional engineer's opinion that the house had been remediated, the Plaintiffs sold the home in June of 1998. 33. As a result of the deficiencies set forth above, the plaintiffs have incurred the following damages: a. After paying 8R&R $336,317, the Plaintiffs had to engage substitute contractors to complete the home and to remedy the structural deficiencies at a cost of $122,679, which exceeded the contract price by $38,996. b. The home as constructed sustained a loss of market value in the amount of $165,000, IV. CAUSES or ACTION COUNT I Breach of Express Warranty 34. Plaintiff incorporates the previous paragraphs 1 through 33, as though the same were set forth herein at length, 35, The Construction Contract expressly provides, as follows: PHLEGAL, IH081H vI.. (:lBFZOlI.WPOl -13 - 20. Warrantv: rnscection Procedure, Contractor [defendant] warrants that for a period of one (1) year from the date of completion, Contractor will remedy or replace or repair defective work or defective Materials in the Work, 36, In addition, the Construction Contract places a responsibility upon plaintiffs to provide notice of deficiencies. Specifically, the Contract provides, as follows: 20.1 In the event that there are any warranted defects in workmanship or materials in the work, within the aforesaid one (1) year period, Owner shall promptly give Contractor written notice of same and Contractor shall be afforded the opportunity to remedy, replace or repair the said defective work.,.. 37. At the time that the Contract was executed, defendant, in order to induce plaintiffs to enter into the Contract, warranted and represented, as aforesaid, Plaintiffs in fact entered into the Contract in reliance on defendant's warranty and representations regarding competency in fulfilling custom home construction. 38. With regard to compliance, the Contract expressly sets forth the time within which defendant is required to remediate warranty deficiencies: 20,3 Warranty service shall be provided forty-five (45) days after settlement if required, and again one (1) year after settlement if required unless there is an emergency, 39. The construction and design of the dwelling house was not as represented by, or as undertaken by BR&R. To the contrary, the PHLSGAL, ItllJUH '/1 l.lBFZ01! .WPD) -14- construction and design are materially deficient, However, BR&R has failed and refused to remedy, replace or repair the defective work, as aforesaid, in direct breach of defendant'S warranty obligation, as set forth in the construction Contract. 40. AS a result, plaintiffs have sustained pecuniary damages in the amount of $203,996, !;;OUN'l' 11 Breach of Contract 41, Plaintiffs incorporate paragraphS 1 through 40 as though the same were set forth herein at length. 42. Having failed to remediate the structural and other material deficiencies, as aforesaid, the defendant has breached its contractual undertakings with plaintiffs, 43. As a result of defendant'S breach, plaintiffs have sustained pecuniary damages in the amount of $203,996. coUN'l' III violation of the pennsylvania unfair Trade practic.. and Consumer protection Law 44. Plaintiffs incorporate paragraphS 1 through 43 as though the same were set forth herein at length, 45. Plaintiffs assert this claim against BR&R based on violation of the pennsylvania Unfair Trade practices and Consumer protection Law ("UTPCPL"l, 73 Pa, C.S.A, ~ 201-1 ~~. 5'llLElJllt.L; UQ~tH 'J1. l.1ltll;!.1)l ~ WI'Ol -15- 51. As a result, plaintiffs sustained pecuniary damages in the amount of $203,996. 52. Further, the conduct of BR..R in misrepresenting its competence; repeatedly and wilfully refusing to fulfill its contractual obligations; and engaging in unfair and deceptive acts and practices, warrants the imposition of treble damages, aggregating $611,988 as authorized by section 201-9.2 of the UTPCL. COtlN'l' IV Breach of Good .aith and .air Dealing 53. Plaintiffs incorporate paragraphs 1 through 52 as though the same were set forth herein at length. 54. BR&R lied to plaintiffs when it asserted, through its principals, cornelius Rusnov and Sandra Buckley-Rusnov: a. That it possessed the technical proficiency to properly and competently design a custom home as prescribed by plaintiffs; b, That it possessed the capability for providing the qualified on-site supervision during the construction process; c. That both principals and specifically Sandra Buckley-Rusnov would provide expert services, including devoting time necessary to assure that the design and construction of the dwelling house was conducted in a competent and timely manner; PHLEGAL: 1l118lH '11. 1,;IB1:111.1 WPOJ -17- d. That all work performed by subcontractors of defendant's choosing and select ion, would be accomplished in a good and workmanlike manner, 55. BR&R failed to act with honesty in fact, during its dealings and communications with plaintiffs. 56. By reasons of the foregoing, plaintiffs have sustained pecuniary damages in the amount of $203,996. COUN'l' V Negligence 57. Plaintiffs incorporate paragraphs 1 through 56 as though the same were set forth herein at length. 58, Having represented itself as possessing the highest professional competence to perform design and construction of a residential dwelling of the type embodied by the construction contract, BR&R owed plaintiffs a duty of professional care and competence. 59. BR&R failed to exercise professional competence, and breached its duty of care by failing to design and construct a residential dwelling place free of structural defects and construction deficiencies, as aforesaid. 60. BR&R knew or should have known with the exercise of due care that the design and construction of the dwelling place did not comply with its undertaking, as embodied in the Construction Contract. PHLSclAL: il08HJ vI \JBFZllli WVO) -18- 61. Further, BR&R failed to exercise professional competence and breached its duty of professional care to plaintiffs by not remediating the material deficiencies once they had been discerned. 62. Plaintiffs justifiably relied on the assertions by BR&R together with its undertaking. 63. As a direct and proximate result of BR&R's negligence, a$ aforesaid, plaintiffs suffered damages in the amount of $203,996. COUNT VI Breach of Warranty Implied By Law 64. Plaintiffs incorporate paragraphs 1 through 63 as though the same were set forth herein at length. 65. At all times relevant to this lawsuit, defendant held itself out as having the necessary expertise with which to provide a dwelling free from substantial structural defects, and constructed in a workmanlike manner, all of which was reasonably within the contemplation and expectation of plaintiffs, as purchasers. 66. BR&R has accorded plaintiffs with an implied warranty of habitability and reasonable workmanship, as a matter of law, and that the dwelling would be fit for its intended purpose. 67. Instead, BR&R violated its duty to provide a home consistent with the warranty implied by law, as aforesaid. 68. As a result of defendant's breach of implied warranty, plaintiffs have sustained pecuniary damages in the amount of $203,996. PHLEGALI IUOU4) vl I:2BFZOl! ,WPDI -19- Exhibit A ~~/'911'/Ooco". 'I, 1"" '. 8a&A DESIGN ASSOCIATES CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT ..ade this CJ/.JI day of (iet;&..,; , 1994, by and between WILLIAM BRANCH and LESLIE BRANCH, residing at 231 Ridge Drive, Carlisle, Pennsylvania 17013, hereinafter referred to as the "Owner," party of the first part, AND BR&R DESIGN ASSOCIATES, a Pennsylvania partnership, having its principal place of business at 1839 Rudy Road, Harrisburg, Dauphin County, Pennsylvania, hereinafter referred to variously as the "Contractor" or the "Design/Builder," party of the other part, WITNESSETH, that the parties hereto, agree, as follows: 1, Premises. Tha Owner has sita control of a certain S~ acre tract of land situated or described as follows: Lot No, 9, Truffle Glen Road, Truffle Glen Development, Cumberland County, Pennsylvania (tha "Premises"), Ownar agrees to provide Contractor with a legal description of the Premises, a copy of the latest recorded subdivision plan of the Premises, a copy of the Owner's Certificate of Title, and a copy from the Courthouse of all Plan and title restrictions which apply to the Premises, 1,1, The Work, Contractor shall use its skill and expertise to furnish all the materials, erect and build a two (2) story residential dwelling house with basement and semi.detached 3 car garage/mudroom/guest quarters described as follows: lodge style wood frame dwelllng house with greatroom, kitchen, pantry, dining room, piano room, fireplace, exercise/TV room, and 3/4 bath on the first floor and master suite with laundry and two (2) bedrooms with baths on the second level known as "the Branch Residence," (the "Work.) as per the initial presentation of BR&R design associates, as set forth herein and in the other Contract Documents, 2, Initial Contract Price: Pavment: The Owner agrees to pay to the Contractor for the performance of the Work hereinabove set forth the sum of Dollars ($ ) (the "Contract Price") (which is targeted to be within the Owner's budget of $450,000,00) in draws set forth in the Schedule of Payments which will be attached as Schedule "A" hereto and which are summarized as follows: lat Draw Within seven (7) calendar days of signing this contract When ordering the precast foundation When foundation is complete When framing is complete and roof is papered When roof and side sheathing are complete When rough plumbing and wiring are installed, excluding finished lower level, if any $ 2nd Draw 3rd Draw 4th Draw 5th Draw 6th Draw o BR&R design associates 1994 7 th Draw When sheetrock walls are installed, excluding finished lower level, if any When house is substantially completed according to this Contract, 8th Draw INITIAL CONTRACT PRICE S 2,1. Chanos Orders, Owner acknowledges that authorized price adjustments will be made by written Change Order from time to time as signed by Owner unless such price adjustments are pre-authorized by Owner herein (such as within the Allowances outlLned on Schedule "D") or as Additional Work described in Schedule "8." Owner agrees to prefund Change Order requests unless otherwise authorized by Contractor, Change Orders which are requested, but not pre funded within three (3) business days, shall be ~onsidered rejected by Owner and the Contract Time shall be extended by three (3) days for processing time for each non funded Change Order, 2.1. 1, The Contrac tor shall prepare Change Orders for the Owner's approval and execution snd shall have authority to make minor changes in the design and construction consistent with the intent of this contract not involving an adjustment in the Contract Price or an extension of the contract time, The Contractor shall promptly inform the Owner, in writing, of minor changes in the design and construction and shall endeavor, when practical, to obtain Owner's consent in writing in advance of any such minor changes, which consent shall not be unreasonably withheld, 2,2 Draw Schedule, The Contractor is authorized to adjust the Schedule of Payments to coincide with the disbursement requirements of Owner's lender, Payments are due no later than ten (10) days after the Owner's receipt of Contractor's request for each draw, Each draw shall contaLn a certLfication that all Work entitling the Contractor to such draw has been performed fully in accordance with the Contract Documents, with exceptions, if any, noted and accounted for, A late charge of $25,00 per day will be paid by Owner to Contractor for each additional day thereafter, until paid, If payment is not received within ten (10) days after the payment due date, the Contractor may stop a'.1 Work and the Contract Completion Date shall be extended two (2) days for each day that Work is stopped awaiting payment, 2,3. Price AssumotionlRevision, The Contract Price is based on ~urrent lumber prices and assumes that there will be no change in the price of lumber or any other IIISterial or supplies from that which was quoted to Contractor for the purpose of estimating this Contract Price, The increased lumber prices do not include an additional 15\ for Contractor's overhead and profit, See Article 16.3 and Schedule "8," ), Direc~ PaYment bv Lender, Owner shall direct that all payments due the Contractor for Work done and materials furnished be made directly to the Contractor by the Mortgagee, if any, without the joinder of the Owner after Mortgagee has made appropriate prepayment inspections of the Work, If Mortgagee assLgns fees for inspections, Owner shall pay these fees. o 8R&R design associates 1994 - 2 - 4, Time for ComD lec lon, The Work Co be perfor'lled by che Concractor is anticipated to begin within forty-five (45) days of che Owner'. acceptance of the Contract Documents which Is expected to be on or about February I, 1995 (weather and hunting season permitting), Owner will issue Notice of Commencement promptly after such accepcance and che Work will be fully completed no later than one hundred eighty (l80) days (the "ContracC Completion Date") after Notice of Commencement of construction, except as extended, by Change Order or otherwise as provided herein, The Notice of COllU1lencement shall be accompanied by an original Certiflcate of Insurance conflrming Owner's Builder's Risk coverage as per Article 10 herelnafcer, 5, Plans Included In Contract, The Work shall be erected In accordance wiCh the flnal working plans ini t ialled by Owner, $pec lficacions init1alled by Owner, the Modificaclons, if any, che General Conditlons, if any. che Special Conditions, if any, cogether with the worksheecs, purchase orders, contractor inscructlons and color selection sheecs which shall be duly executed, dated and iniclaled and which, wlch the Schedules aCtached hereCo shall be and are made a part of this Contract, all of which are hereinafter called "the Contract Documents,- 6, Owner's Work, In the event Owner desires to provide labor and macerlals not Included in this Contract, Owner may do so only in accordance with che Work Schedule promulgated by Contractor in such a manner as Co not delay che progress of the Work, The Owner's Work is set forth in Schedule "C-)" attached hereto, 7. Additional Work, All ocher Work and services requested by the Owner and not initially estlmaced and agreed Co or allowed for herein by Contractor, lncluding changes in the scope and program of the Work shall constitute Addltlonal Work and shall be paid for by Owner as provided in Schedule "B-1. II 8, Excused De lays, The Concrac tor shall noC be llab le for any delay in che prosecucion or completion of the Work caused by the act, neglect, default of the Owner, or as a result of changes or alterations in the plans and spec lflcaclons made by the Owner, or by damage by flre, earthquake or other casualty, whether insured or not, or by weather conditions, or by strike, walk. outs or any other acts of suppllers of labor or materials, over which the Contractor has no control or for which the Concractor Is not responsible, In any such event the cime herein flxed for the complecion of che Work shall be extended for a period equivalent co the time lost by reason of any of che causes aforesaid, Further, a delay in che performance of chis Concracc by the Contractor is excused when such delay is caused by an order of any court or other public auChorlcy, by any governmencal concrol, regulations, rescrlccions or a llocac ions or labor, supplies and macerlals Ins clcuted by staCe or munic ipal or governmental agency for any reason whatsoever. " 9. Permics: Uclllcles, Certain permits and assoclaCed fees are llsted in Schedule C-2, The Owner shall provide and pay for electric, water, sewer and heacing fuel or ocher energy co be used co construct and heat che Work during the course of construction. o SRba design associates 1994 - 3 - 9,1, Owner shall secure eny necessary Township or municipal approvals or subdivisions necessary for the construction of the Work on the Premises, 10, Insurance: Risk of Loss. The Owner shall during the progress of the Work maintain a polley of Bullder' s Rlsk insurAnce on the Work which insures against loss or damage by fire and all ot.her covered risks or perils in the full amount of this Contract plus Owner's Work plus 2S' of the sum of the Initial Coneract Price end Owner's Work which policy shall include, in addition eo the property coverage, llabllity insurance to protect the Owner and the Coneractor ATIMA against any losses, claims, actions or suits either at law or equity for injury tc persons or damages to property, the policies eo cover all Work incorporated in the dwelling, and all materials for the same in or about the premises whethar or not attached or incorporated into the dwelling, and t.o be made payable to the parties hereto, as their interest may appear, The Contractor is an independent contractor with respect to the Work and shall keep adequate Workmen's compensetion insurance in effect to protect Contractor and Owner from all such claims, 11, Stiouletion A.ainst Liens. Immediately after the signing of this Cont.ract, the Contractor shall execute and deliver to the Owner a proper waiver of any and all mechanics' liens, which waiver may be filed by the Owner or the Contractor in the appropriate Prothonotary's Office as shown on Schedule ItE." l2, Comollance with Codes: Additional Costs, The Work will be designed to be in compliance with applicable governmental codes, regulations and requirements, In the event that an unanticipated interpretation or an adminiserative or leglslative change in any munic1pallty or governmental ordinance, code or regulation requires plumbing, electrical or other requirements different from or in addition to the provisions of this Contract, Contractor shall give Owner notice of same and Owner shall compensate Contractor for any additional work and materials required by the aforesaid regulation or municipality at Contractor's usual rate under Schedule "B," 13, Substitution of Haterials, In the event that the Contractor is unable to obtain the exact materials specified on the plans and specifications or on the options or allowances attached hereto through the Contractor' a ordinary and usual courses of supply, the Contractor shall have the right to substitute materials of similar pattern, design and quality, in the Contractor's sole discretion. Contractor will endeavor to make sure that Owner is aware of any such substitution, in advance, and if practical, obtain Owner's written consent which will not be unreasonably withheld, Owner acknowledges that substitute request.s made by Owner which have increased costs shall be prefunded by Owner and may als~ increase contract time. l4, Owner's Warranties, Owner represents that the Contractor's intended construction of a single family residence on the Premises conforms to the applicable _____ zoning, that the Premises are suitable for the construction required and provided under the terms of this Contract; that the Premises are not level and are forested which entail additional costs and expense to prepare the c 8R&R design associates 1994 - 4 - .ite for construction thereon; that there is public road .ccess to the Premi.... which mayor may not allow troublefree rood uninterrupted movement of vehLcle.. machinery and equipment incidentdl to the Work; that OWner i. the owner of record of the aforesaid premises; that there are no unrecorded deeds; that title is good and marketable; that a perpetual right of way eKl.ts to tho premise.; th.t the said premi... Is free of any encumbrances. liens. easements ~ ete. eXc6pt as contemplated by Article 3; that there are no actions, cause of actLon., or claLm. which might at . later data impair the tltle, The OWner shall. at hl. eKpense. forthwith remedy any breach or violatlon hereof whlch may eKlst or arLse at any time, The OWner partlcularly understands and agrees that each covenant, representation. and warranty. hereLn contalned, ls severally of the es.ence of this Contract and the breach or violation of anyone shall eKcu.e performance by the Contractor. 15, No OCCUDancv, Contractor shall permlt Owner to inspect the Work at reasonable tima. not to interf~re with the progre.s of the Work. but OWner shall not be entitled to keys or possession of the Work prior to payment of all sums due under this Contract. IN NO EVENT SHALL THE OWNER OCCUPY OR TAKE POSSESSION OF THE WORK BEFORE FINAL PAYMENT HAS BEEN HADE AND/OR ~HE CONSENT OF CONTRACTOR, WHICH CONSENT SHALL BE ENDORSED ON THIS CONTRACT, IN THE EVENT OWNER BREACHES THIS PROVISION, HE SHALL BE DEEIlED TO HAVE ACCEPTED THE WORK "AS IS" AND DOES THEREBY RELEASE AND WAIVE ANY CLAIMS AGAINST CONTRACTOR, A breach of this provision by the Owner, shall be considered a breach of the contract by the OWner and shall entitle the Contractor to stop Work or terminate this contract. and recover from the Owner payment for all Work executed and any loss suatained at reasonable profit and damages, 16, Concealed Conditions/Increase in Lumber Costs, In the event that the Contractor encounters any concealed or unusual conditions during the course of construction, such as solid or machine rock. qulcksand. sinkholes. water. springs or historical artifacts and the concealed or unusual condition requires any other work beyond the scope of the estimated Work. such as the removal of rock by blasting or drlltlng or by special excavation. or the installation of special footings, sub-base, foundation wall. or drain tiles, or any required geotechnical, structural or other profess ional consul tant, the Contractor shall be compensated additionally by Owner for .uch Additional Work and for the materials provided at Contractor's usual r.te. and charge., . copy of which shall be attached as Schedule "B," 16,1. Up or. discovery of the unusual condit1on. Contractor shall promptly give Owner written notice and an estLmate for the Additional Work, Owner shall have the option of agreeing to Cont=actor performLng the Additional Work on the basis of the estimate or of terminating this Contract if the estillata would increase the Estimated Contract Price by more than ten percent (10'), OWner shall give the Contractor written notlce of his electlon to terminata wlthln ten (10) days of OWner's receipt of the Contractor's notice, If Owner elects to termlnate this Contract, OWner shall pay to the Contractor the actual costs of labor and materials performed and furnished by Contractor to the date of the Contractor's notice to the Owner. plus an addltional fifteen percent (15') as per Schedule "B," The Contractor shall apply any advances. with the exception of the initial payment, made by the OWner to such payment due from the OWner upon termination as aforesaid and shall refund the eKcess. if any, Upon termination o BR&R design associates 1994 . 5 . ,u aforesaid, Owner does hereby remise and reluse Contractor from any claim whatsoever arising out of this Contract, If the Owner falls to reply in writing within ten (10) days to the Contrac tor's notice, the Contractor, may, at its option, elect to treat this Contract as terminated and Owner shall be liable for the payments upon termination as set forth hereinabove, Contractor shall given OWner written notice of said election. 16,2, In the event that additional concrete/stone is required for d~eper footers, or if more backfill is required for any reason than is herein estimated because of site conditions, (hmer hereby authorizes Contractor to supply and install the additional concrete/stone and/or additional backfill and Owner agrees to compensate Contractor for the cost of such additional concrete, stone or backfill at Contractor's usual rates and charges, a copy of which shall be attached as Schedule "B", 16,3, In the event that lumber or other materials or supply prices increase during the period between the time this contract was estimated and the lumber or other materials are purchased, Owner agrees to pay the increased cost as per Schedule "8" attached, Owner may elect to lock in lumber prices by making a nonrefundable pre-payment of 10' of the initial Contract Price to Contractor who will use the prepayment to buy the lumber and thus hold the lumb~r price, /-.1 Owner elects to make a 10' prepayment to "lock in" the cost of lumber, /-.1 Owner elects to take the risk of an increased cost for lumber, WITNESS: 17, Confe3sion of Judllment, As further collateral to secur" Owner's promises to pay the Contract Price, upon default of any payment provided for in Article 2 after the payment due date, the Owner does hereby authorize and empower any attorney of any Court of Record of Pennsylvania or elsewhere to appear for and to enter judgment against the Owner, at any time after the date hereof and with or without a declaration, in favor of the Contractor, its successor or assigns, in the total amount of the Contract Price set forth in Article 2 above, which judgment shall be security for and may be enforced to collect any sum which may be due and payable by the Owner under the terms of this Contract and any supplement or amendment thereto or may be due and payable otherwise as damages by the Owner in case of breach of this Contract and any supplement or amendment thereto by the Owner, with interest, costs of suit, a full release of all errors, without stay or execution, and with 5' added as a reasonable attorney's fees; and the Owner does hereby waive and release all benefit and advantage of any and all appraisement, stay, or exemption laws of any state now in force or hereafter to be passed, AT THE TIME OF THE SIGNING OF THIS CONTRACT, CONTAINING THE PROVISIONS FOR JUDCMENT BY CONFESSION THE OWNERS, DO HEREBY STATE, THAT THEY HAVE EARNINGS IN EXCESS OF $10,000,00 ANNUALLY, C BR&R design associates 1994 - 6 - 17,1, This Contract is proposed by BR&R and accepted by Owner ill Cumberland County, Pennsylvania and the parties agree that any disputes between them regarding any aspect of the Work will be finally resolved by arbitration or court action in Cumberland County, Pennsylvania, 17,2, Collateral DeDosit in Lieu of Confess lon, In lieu Df grantlng the Article 17 power of attorney to confess judgment above, Owner agrees that Contractor's attorney may hold the following securities, certiflcates or other collateral with appropriate executed stock powers or endorsement or powers of attorney in favor of Contractor in the amount of $iOO,OOO,OO as collateral for Owner's performance hereunder, to be delivered to said attorney at the time of Owner's execution hereof, 18, Correction of the Work. Contractor and Owner will monitor the Work closely and Contractor invites Owner to perticipate in pre -draw inspections, Owner agrees to exercise reasonable diligence in ascertaining and reporting to Contractor as Work under this Contract progresses, any defects, deviations or deficiency in performance or material in the Work, Contractor ahall promptly correct Work which doea not conform to the Construction Documents, The failure of Owner to inform Contractor, shall be considered a waiver of any claim by Owner thereafter for laid dafect, deficiency or deviation (excepting only latent or not easily discDverable defects, if any) unless Owner agrees to the correction a. Additional Work, if necessary, in the sole discretion of Contractor, Owner agrees, that any progress payments made by Owner or on Owner's behalf as .et forth in Article 2 of this Contract, shall be deemed in full and complete acceptance of the Work perfDrmed by Contractor up to the time of said paymant, except for those defects, deficiencies or deviations which Owner haa advised Contractor of in writing at the pre-draw inspection or otherwise as herein .et forth, 19, Notice of Comuletion: Final InsDection, Except as set forth hereinafter, the Work shall be considered substantially completed when it ha. been constructed in substantial conformance with the plans and specification. hereinabove mentioned, or if required, when a Certificate of Occupancy has been issued or when said Work has passed final inspection by the municipal, borough or township building inspector, or lending ins'titution, Upon completion of performance of this Contract, ContractDr shall within five (5) days thereaftar, give Owner notice of said substantial completiDn and Owner shall thereaftar, within five (5) days of said notice by Contractor, finally inspect the premiaa. with a representative of ContractDr and advise Contractor, in writing, of .ny defects, deficiencies or deviations in material or labor in Work completed alnce the last inspection, Failure of Owner to: (l.) Finally inspect; and (2) Give notlce Me aforesaid; and (3) Enumerate said defects, shall be deemed a waiver of any claim thereafter by Owner of or for said defect, deficiency or devlatlon (exceptins only latent or not easily discoverable defects, if any) and Owner doe. hereby release ContractDr from any clalm arising therefrom whlch would have occurred since the last inspection. 20, a period of one Warranty: InsuectiDn Procedure, Contrllctor wllrrnnta thllt for (1) year from the date of the completion, Contt'lIctor wlll remedy o BR&R design associates 1994 - 7 - or replace or repair defective Work or defective materials in the Work, The liability of the Contractor under thlR warranty shall be limited to the replacement or correction of said defective material or workmanship and no other claims and demar,ds whatsoever shall be made upon or required to be allowed by the Contractor, Excepted and excluded from the aforesaid warranty, shall be chips, breaks f scratches. or mars in any materials used in the home. that are not itemized in writing to Contractor prior to possession; frozen pipes, brick discoloration; floor squeaks; caulking and grouting, ground settlement; warpage or other deficiencies resulting from Owner's failure to control humidity; grading problems, cracks in concrete, drywall or plaster, brick or wood; shrinkage and other settlement problems; variations in stained wood such as cabinets, door or trim; drywall nail pops, No warranty shall apply to outside free-flowing concrete slab work, No warranty shall apply to damages caused by weather conditions, water seepage, land settlement, site conditions, termites or other insects, It is hereby agreed and understood that this warranty applies only to such items as bear no manufacturer's warranty covering any item furnished under this Contract, NO OTHER WARRANTIES; EITHER EXPRESS OR IMPLIED SHALL APPLY TO THIS CONTRACT, THE WARRANTIES CONTAINED HEREIN ARE PERSONAL TO THE OWNER AND ARE NOT TRANSFERRABLE OR ASSIGNABLE AND THE OWNER DOES HERESY EXPRESSLY WAIVE ANY OTHER WARRANT{, 20,1, In the event there are any warranted defects in workmanship or materials in the Work, within the aforesaid one (1) year period, Owner shall promptly give Contractor written notice of same and Contractor shall be afforded the opportunity to remedy, replace or repair the said defective Work, Owner'. failure to give Contractor written notice as aforesaid and Owner's failure to afford Contractor the opportunity to replace, repair or remedy the said defective Work or material shall constitute a waiver by Owner of any claim by Owner for said defective material or workmanship, 20,2. Contractor agrees that all manufacturer's Warranties will pass through to Owner with Owner's Final Payment here inunder, 20,3. Warranty ~ervice shall be provided forty-five (45) days after settlement, if required, and again one (1) year after settlement, if required, unless there is an emergency. 20.4, Owner may, if Owner elects, purchase a Ten (10) Year Home Owner's Warranty, 21. Entire Contract: Chanees, It is understood and agreed that the entire agreement of the parties is contained in this Construction Contract as described in Article 5, ANY OTHER WRITTEN AGREEMENTS REQUIRED SY A FINANCING INSTITUTION HEREAFTER SHALL BE SUPPLEMENTARY HERETO. No changes will be made in the plans and specifications unless a Change Order has been prepared in writing, signed by the Contractor and Owner, specifically stating the details of the change in construction and the additional cost thereof or credlt to be allowed against the contract price. Contractor reserves the right to refuse to submit or approve change orders which would result in a substancial diminution of the Work or substantial modification of the plans and speclfications, unless otherwise agreed to by the Contractor and Owner in writing, o BR&R design essociates 1994 - 8 - Schedule "B" Schedule B-1 Contractor's Fee for Additional Work ~ "Cost Plus" B-1.1. In the event that Additional Work must be done to complete the Work, then ClImer agrees to compensate Contractor by prefunded Change Order for the AddItIonal Work as follows: The Cost of the Work plus a 15' percentage payment times the Cost of the Additional Work for Contractor's overhead and profit, The Cost of the Additional Work shall mean costs necessarlly incurred by the Contractor in the proper performance of the AddItional Work including the cost estImate of any subcontractor(s), the wages of constructIon workers directly employed by the Contractor, wages or draws of Contractor's partners or supervIsory and admInIstratIve personnel, and costs for benefits of all such personnel, B-1.2. All such as custom furnIture, AddItional Work. walk-In closet InterIors as well as all custom work cabinetry, buIlt.Ins, ecc, shall be considered B.1.), In additIon, Contractor shall be reImbursed for ReImbursable Expense (as defIned In standard AlA Doc, B141 (1987)) in the amount of 1,2 cImes the amounts expended, Schedule B-2 - ClImer's RIsks In the Contract Price B-2,l. Lumber PrIces, Unless ClImer has elected Co prepay under Article 16,), any Increasa In lumber prIces whIch occurs during the parIod between contracC executIon and performance shall be paid by ClImer, If the increase In lumber prIces, exc1u,dve of any other prIce changes, causes the Total ContracC PrIce Co Increase by more than ten (10\) percent due Co an increase In lumber prices, che Contractor shall promptly gIve wrItten notice Co the ClImer of thaC facc before he purchases the lumber, B-2,2. ~aled CondIcions, Owiter bears the risk of addItIonal cost due Co concealed condicIons aC the site as per ArtIcle 16,1 and 16,2 of the Contract, B-2,), UnantIcIoated LeeIslative or InteroreCIve Chanees, The TownshIp, DER, and Departmenc of Labor and Industry approve dwellIngs and Installacions wIchIn cheir provisions on the basis of scatutes and ordinances and local incerpretatIons of same which are subject to unancIcipated changes. Owner bears the risk of additIonal cost for unantIcil-ated changes in interpretatIon and in the ordinances, stacutes, etc, C BR&R desIgn associates 1994 Schedule "C" OWNER'S RESPONSIBILITIES, SEPARATE COSTS, OWNER'S WORK Th15 Schedule 'C" 15 intended to inform and outline for Owners who may be undertaking e residential bullding project for the Hrat time their responsibilities with respect to the Project in addItion to paying the Contract Price. Further, so that they may entic Lpate cereain fees and costs which are not Lnc luded in the Contract Price, or routine ly ident if1ed in the Construc tion Contract, these are estLmated in check Ust fashion, Finally, there is a subschedule setting forth each party's expectation with respect to Owner's Work, Schedule C-l - Owner's ResoonsibilitLes C-1.1. Prior to commencement of the Work, the Owner shall furnish a legal descrLption and a certified land survey of the PremLses, giving, as applicable, grades and lines .,f streets, alleys, pavements and adjoining property; rights-of-way, restrictions, easements, encroachments, zoning, deed reatrictions, elevations and contours of the site; locations, dLmensions and complete data pertaining to existing buildings, other improvements and trees; and full information concerning available Serves and utility lines, both public and private, above and below grade, including inverts and depths, C-l,2, The Owner shall furnish services of geotechnical engineers and other consultants when such services are deemed necessary by any governing agency that has the authority to do so and/or the Contractor, Geotechnical engineers or other consultants shall be selected by mutual agreement, Such services shall include, as required, applicable test borings, test pits, soil bearing values, percolation tests, air and water pollution tests,a nd other necessary operations for determining subsoil, air and water conditLons, with reports and appropriate professional recommendatLons, C-1. 3, by Art Lele 1. 1 and Contractor shall be The services, information, surveys and reports required 1. 2 shall be furnished at the Owner's expense, and the entitled to rely upon their accuracy and completeness. C-l,4, If the Owner observes or, otherwise becomes aware of any fault or defect in the Work, the Owner shall give prompt oral notice and, if necessary, written notice thereof to the Contractor, C-I, 5, The Owner shall furnish required information and services and shall render dec15ions with reasonable promptness to avoid delay in the orderly progress of the Contractor's servLces, C-1. 6, The Owner shall communLcate wi tll other contractors only through the Contractor, DeposLt for Schedule C Initial Owner Expenses Estimated Total Due at Signing +15\ - +15\ - Expenses due wi thLn ten days of invoice +15\ - o BR&R design associates 1994 SchoduLe C-2 - Estimated Permit Fees C.2,1. P9rmlts, The Owner agrees to pay the costs and tees necessary to brlng the sewer, natural gas, water and electric and other utlliths to withln five (5) feat of the dwelling house, The Ownar heraby authorized and appoints Contractor to obtain at the Owner's expense, all necessary permits, inspections, seal. or au,horlzatlons from all munlclpal bureaus and departments, private Elrms or utillties whlch may ba requlred for the construction or occupancy of sald dwelling house, and to that end. authorizes the Contractor to sign thelr names to any appUcations for such permits, inspectlons, seals or authorizations, identlfying appropriate C.2,2, The Owner shall cooperate wlth the Contractor in required permits. Ucenses and lnspections, and shall take action with reasonable promptness, The following permlt fees are normally expected to be pald by Owner in addltion to the Contrect Price, Cont.ractor will normally be able to provide one day's advance notice to the Owner of the necessity for the payment, 1. Recording Fee. Waiver of Liens 2, Sewer Module Application Fee ), Storm Water Application Fee 4, Building Permit Application 5, Exterior Fees to Sewer and Water Authority 6, Extension Fees to Gas Company & PP&L ], Electrical Inspection 8, Plumbing Inspection 9. Occupancy Permlt Tha pubUsh"d schedule of fees for Sllver Sprlng Township ls attached as part of Schedule C-2, Page Schedule C-) . Owner's Work C.),1. The Owner has agreed to do the following Work: C-),2, Contractor will provide a schedule to Owner for Owner'. Work. In the event Owner does not schedule Owner Work at the proper time or does not p'~mptly complete the Work he is obliged to do hereunder, Contractor may complete same and Owner shall pay Contractor's cost plus 15t for overhead, supervision. work and materials from Schedule "8," Should the Owner, in the sole oplnion of Contractor, interfere with the const~uction or fall to make scheduled payments when requested, Contractor may consider such failure a breach of this Contract and that breach will excuse Contractor from further performance and Contractor shall receive all sums due hereunder. lncluding lost profit, Co),]. Unflnished Scacels), Owner agrees that the following spacers) will remain unfinlshed by the Contractor and are the responsibility of the Owner to finish if they so choose; basement. attic o BR&R design associates 1994 Exhibit B FOWLER, ADDAMS, SHUGHART & RUNDLE ATTORNEYS AT LAW P,O, BOX 208 28 SOUTH PITT STREET CARLISLE. PENNSYLVANIA 17013.0208 JOHN I. 'OWLlR. III WIUIAM A. ADDAM' MICHA'" fl. "U"OI.l TELEPHONE 17171 ,,0,8300 'OWL 1ft. ADDAMS' 'H"'OHA"T 11.11.111.11 FAX 17171 24'-<<11154 "I"CIAI. C~UNIIL. DALI f, 'HUOHAR', JIt, 0' COUNSCL HOHO""_L. 0"1.1 '0 'HUOHART February 5, 1996 FAXr (717) 232-1459 and REGULAR HAIL Lawrence B. Abrams, III, Esq. Rhoads & Sinon P.O. Box 1146 Harrisburg, PA 17108-1146 RE: Branch - BR&R design associates construction Contract Dear Chipl I tried to reach you by telephone today regarding our exchange of correspondence last Friday and to clarify under what conditions the Branchs are willing to entertain the immediate sale of their home. In an effort to keep moving this matter to resolution, the Branchs have authorized me to make the following itemized proposal subject to your client's agreement to all items: 1. You may deliver the check for draw 17 ($45,000) to BR&R which you are holding in your safe. 2. The Branches will pay draw 18, net of subcontractor bills they have paid directly ($41,440, less approximately $15,000), as soon as the work is substantially completed. 3. The Branchs will meet with Neal and Sandra either independently, with counsel, with a facilitator, or with an arbitrator, to work through the change orders (additions and deletions) and allowances. 4. BR&R will complete construction of the contract without delay. 5. BR&R will remedy any defective work. 6. BR&R will provide the appropriate data, drawings and calculations to enable an independent engineer to evaluate the structural integrity of the home. Exhibit C . FOWU:R. ADDAMS, SHUGHART'" RUNDLE ATTORNEYS AT LAW P,O, BOX 208 28 SOUTH PITT STREeT CARLISLE. PENNSYLVANIA 11013,0208 JOHN I. 'OWLIA. III WILLIAM A. ADDAM' MICHAU ft. AUNDLI TELEPHONE 17' 11241,1300 FAX 17171 241-8154 'OWL"'. ADDAMS. tHUOHA'" II ""-'IIJI .,ICIAL COUN,IL DALI', 'HuaHARY, JR. 0' COUHIII. HOHOA"ILI GALl'. SHUOHAIIl' February 8, 1996 J'AXI (717) 232-145' aDd RIOULAR MAIL Lawrence B. Abrams, III, Esq. Rhoads & Sinon P.O. Box 1146 HarriSburg, PA 17108-1146 REI Branch - BR&R design associates Construction Contract Dear Chipl Confirming our telephone conversation of today and to follow up on my letter of February 5, 1996, the Branchs have authorized the following in an effort to advance the resolution of this matter I Enclosed is a current "Punch List" of unfinished items (interior and exterior) and repairs/poor workmanship, Would you ask Neal Rusnov to review the List and, if necessary, make arrangements with Leslie Branch to go through the home with Leslie and John Shunk to again inspect items about which Neal has any questions. with respect to Neal's agreement to complete each item on the List, please have him indicate "yes", "no", or "maybe". With respect to the items to which he indicates "yes" or "maybe", please have him note the time frame for completing such items. If Neal's responses and time frames are reasonable and satisfactory to the Branchs, you may deliver the check for draw #7 to BR&R. Chip, the foregoing is not intended to negate the eight proposed items in my letter of February 5, but is simply offered to provide a tramework for expediting the resolution of items 1, 4 and 5. Very truly yours, FOWLER, ADDAMS, SHUGHART & RUNDLE John B. Fowler, III JBF, III/bc Enclosure cc: Mr. and Mrs. William J. Branch bcc: Edward C. Toole, Jr., Esq. d'"''"''' . . "0 Exhibit 0 . 3 Admitted in part and denied in part It i~ admitted only that Corneliu$ Rusnov and Sandra Buckley-Rusnov are ~pouses and memben of the BR&R partner~hip, It i$ unclear what is meant I:y the phrases "hold$ him$elf out" and "hold$ herself out"; therefore, the remaining averments ofthi$ Paragraph are $pecilically denied, 4, Denied, The averment$ of thi$ Paragraph contain conclusion$ of law to which no responsive pleading is required. To the extent a response i$ required, the averments are specifically denied. 5, Denied, The averments Oflhis Paragraph contain conclusions oflaw to which no responsive pleading is required, To the extent a response is required, the averments are specifically denied, 6, Denied. The averments of this Paragraph contain conclusions of law to which no responsive pleading is required, To the extent a response is required, the averments are specifically denied, By way of further response, the Construction Contract is a written document which speaks for itself " 7, Admitted in part and denied in part. It is admitted only that on October 21, 1994, the parties to this proceedi ng entered into a contract That contract is a written document which speaks for itself and, therefore, the averments of this Paragraph are specifically denied . 2 - investigation, BR&R is without knowledge or intormation $ulli~ient to form a belief as to the truth of the averments relating to the :ilIle of PlaintitW tormer home The remaining averments of this Paragraph are specifically denied 19 Admilled in part and denied in part It is admilled only that construction was not complete by Augu~t I, 1995 The foregoing responding averments are incorporated herein and this Paragraph contains conclusions of law to which no responsive pleading is required, To the extent a response is required. the remaining averments of this Paragraph are specitically denied. 20. Denied, The foregoing responding averments arll incorporated herein, The Construction Contract is a wrillen document which speaks for itsel( therefore. any averments relating to the Contract are specitically denied, This Paragraph also contains conclusions of law and violations of Pennsylvania Rule of Civil Procedure 1022, to which no responsive pleading is required Any remaining averments are specifically denied on those bases, 2 L Admilled in part and denied in part, It is admitted only that on or abouI November 22. 1995. PlaintitTs took possession of the premises, The remaining averments .,1 specifically denied as this Paragraph references a wrillen document which speaks for itself 22, Denied, The foregoing responding averments are incorporated herein This Paragraph also contains conclusions of law to which no responsive pleading is required Lastly, . 5 - 28, Denied, The Construction Contract is a writttn document which speaks for itself Therefore, the averments of this Paragraph are specifically denied 29, Admitted in part and denied in part, It is admitted only that Plaintiffs have failed to pay all draws pursuant to their agreements with BR&R The foregoing responding averments are incorporated herein and, therefore, it is specifically denied that any "substantial deficiencies" existed, Further, this Paragraph references a written document which speaks for itself. Therefore, the remaining averments of this Paragraph are specifically denied, 30, Denied, The "notification" is a written document which speaks for itself. Therefore, the averments of this Paragraph are specifically denied. 31. Denied. it is specifically denied that "numerous and substantial structural deficiencies" existed. Also, this Paragraph references a written document which speaks for itself; therefore, any averments related thereto are specifically denied, This Paragraph also contains conclusions of law to which no responsive pleading is required. 32, Denied, It is specifically denied that BR&R's work was "inferior," "shoddy," or "structurally deficient." After reasonable investigation, BR&R is without knowledge or information sufliclent to form a belief as to the truth of the remaining averments of this Paragraph, Therefore, the remaining averments are specilically denied .7- 63 OIlnied It i~ unclear what i~ meant by the phrase "held it:lelf out" Thereforll. the a'olerment~ of this Parairaph are specilically denied 66. Denied This Parairaph contains conclusions of law to which no responsi'ole pleading is required To the elttent a response is required, the a'olerment~ are ~pecilically denied, 67, Denied This Parairaph contains conclusions of law to which no responsi'ole pleading is required, To the elttent a respon~e i~ required. the a'olerments are specifically denied, 68, Denied, This Paragraph contains conclusions of law to which no responsi'ole pleading is required, Also, it is specifically denied that Plaintiffs sustained any pecuniary damages, WHEREFORE. Defendant. BR&R Design Associates, respectfully requests that this Court deny Plaintiffs' claims in their entirety, with prejudice, NEW MATTER 69, The foregoing responding a'olerments of Paragraphs I through 68 are incorporated herein as though fully set forth at length, - 14- 79 Representations made by BR&R were truthful. accurate. and made in sood faith 80, BR&R substantially complied with its obligations under the Construction Contract. WHEREFORE, Defendant. BR&R DesiSn Associates. respectfully requests that this Court deny Plaintiffs' claims in their entirety, with prejudice. COUNTERCLAIM Count I Breach of Contract 81, The foregoing responding averments in Paragraphs 1 through 80 are incorporated herein 8S though fully set forth at length, 82, Pursuant to the terms of the Construction Contract, attached to Plaintiffs' Complaint as Exhibit "A," payment was to be made by Plaintiffs in eight draws as follows: First Draw. Within 7 calendar days of signing the contract; Second Draw - When ordering the precast foundation; Third Draw - When foundation is complete; Fourth Draw - When framing is complete and roof is papered; Fifth Draw - When roof and side sheathing are complete; - 16. WHEREFORE. Defendant. BUR Design A~sociates. respectfully requests that this Court order Plaintiffs to pay damages to BR&R. in an amount in ellcess of compulsory arbitration Iimiu. tOi/lther with attorneys' fees. costs. and any further relief deemed necessary Counllll- Promis!orv [stoDDCI 98. The foregoing averments in Paragraphs 1 through 97 are incorporated herein as though fully set forth at length. 99. Plaintiffs represented and made promises that they would pay all amounts due and owing to Plaintiff as set forth in Count \. 100. Plaintiffs made said representations and promises in an effort to induce BR&R to continue its work on Plaintiffs' residence. 101. BR&R relied on said representations to its detriment .20 - 85. Denied. The allegation is too vague to answer more specifically. 86. Denied. The alleged change orders were invented by BR&R without the Plaintiffs' authorization in violation of the terms of the contract and were submitted to the Plaintiffs in bulk on December 9, 1995 after the controversy arose. No change orders were authorized by the Plaintiffs. 87. Denied. The answer to Paragraph 86 is incorporated herein by reference. 88. Denied. Much of the work performed by BR&R was not accepted or acceptable as set forth in the Complaint, and required extensive remediation and completion. 89. Denied. The answers to Paragraphs 83, 86 and 88, and Paragraphs 30 and 31 of the Complaint are incorporated herein by reference. 90. The conclusion of law is denied. 91. Denied. The seventh draw was tendered to counsel for BR&R for delivery on condition that BR&R complete the work due and remedy defective work as set forth in Paragraphs 29 and 30 of the Complaint. 92. Admitted. 93. The conclusion of law is denied. 94. The conclusion of law is denied. WHEREFORE, the Plaintiffs request that Count I be dismissed. COUNT II 95. The answers to Paragraph 1-94 are incorporated herein ~y reference. 96. Denied. BR&R failed to design and construct the residence as set forth in the Complaint. 97. Denied. The Plaintiffs have sustained damages as a result of B~&R's defective and incomplete wock as set forth in the Complaint. WHEREFORE, the Plaintiffs request Count II be dismissed. COUNT I II 98. The answers to Paragraphs 1-97 are incorporated herein by reference. 99. Denied. The answers to Paragraphs 82-94 are incorporated herein by reference. 100. Denied. The answer to Paragraph 99 is incorporated herein by reference. 101. Denied. The answer to Paragraph 99 is incorporated herein by reference. WHEREFORE, the Plaintiffs request Count III be dismissed. ADDAMS & RUNDLE u' By: <~~A/'~~ whl""C'"r:e Addams Supreme Court I.D. No. 06265 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 (717) 249-8300 Attorneys for Plaintiffs OF COUNSEL: Edward C. Toole, Jr. I.D. No. 04855 Pepper, Hamilton LLP 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103-2799 (215) 981-4594 WILLIAM BRANCH and LESLIE BRANCH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. CIVIL ACTION - LAW BR&R DESIGN ASSOCIATES, a Pennsylvania partnership, Defendant NO. 96-1182 CIVIL TERM JUDGE J. WESLEY OLER, JR. MOTION TO COMPEL AND NOW, come the Plaintiffs, William and Leslie Branch, by their attorneys, Addams & Rundle, and respectfully move your Honorable Court to issue an order to compel Cornelius Rusnov and Sandra Buckley-Rusnov, the members of the Defendant partnership, BR&R Design Associates, to appear and be deposed in accordance with Pa. R.C.P. 4019 and in support thereof assert the following: 1. This is an action arising out of the alleged structural deficiencies and failure to complete the construction of the Plaintiffs' dwelling house by the Defendant in accordance with their contract. 2. The complaint was served September 14, 1998 and the pleadings are closed. 3. The depositions of the Plaintiffs were taken on February 19 and May 11, 1998. 4. With the letter of November 9, 1998 attached as Exhibit "A", the undersigned served the enclosed notice to take the depositions of Cornelius Rusnov and Sandra Buckley-Rusnov on November 25, 1998. The Rusnovs failed to appear for the depositions. 5. With the letter of December 4, 1998, attached as Exhibit "B", the undersigned served the enclosed notice scheduling the depositions of Mr. and Mrs. Rusnov on December 17, 1998. Again the Rusno~s failed to appear and their counsel did not attempt to postpone or reschedule the depositions. Exhibit A ", (' ADDAMS" RUNDLE ATTORNEYS AT LAW P.O. BOX 208 28 SOUTH PITT STREET CARLISLE. PENNSYL VANIA 17013.020B WILLIAM A. ADDAMS MICHAEL R. RUNOLE TELEPHONE 11171 HI.UOO FAX C7 171 241,' 154 November 9, 1998 Lawrence B. Abrams, III, Esq. Rhoads & Sinon P.O. Box 1146 Harrisburg, PA 17108-1146 RE: Branoh v. BR&R Design Associates Dear Chip: I am enclosing a notice to take the depositions of Mr. and Mrs. Rusnov rot 9:30 a.m. on Wednesday, November 25, 1998 in our office. Please pay particular attention to the request for documents. l Thank you for your cooperation. Very truly yours, ADDAMS & RUNDLE William A. Addams >> WAA/mp Enclosure cc: Mr. and Mrs. William J. Branch Edward C. Toole, Jr., Esquire '..... .;~.. . .." ,..... UAfItWiIIh ~ .,. ,'IN 'N'" bhlblt B (~ ADDAl\fS II RUNDLE ATTORNEYS AT LAW P.O. BOX 208 28 SOUTH PITT STREET CARLISLE. PENNSYLVANIA 17013,0208 WIUIAM A. ADDAMS MICHAIL R. RUNDLI TiLIPHONI 17171 H9.1300 FAX 11171 H9,e154 December 4, 1998 PAX. 231-6637 Todd J. Shill, Esquire Rhoads & Sinon One South Market Square, Twelfth Floor P. O. Box 1146 Harrisburg, PA 17108-1146 RE: Branch v. BR&R Dear Todd: Since I have not heard from you, it is obvious that the Rusnovs have no intention of cooperating in the scheduling of their depositions. I am enclosing a notice scheduling the depositions for 9:30 a.m. on Oecember 17, 1998. We plan to start with Mrs. Rusnov, and I expect that the depositions will continue into Friday, the 18th. Very truly yours, ADDAMS & RUNDLE . William A. Addams WAA/mp Enclosure cc: Mr. and Mrs. William J. Branch Edward C. Toole, Jr., Esquire exhibit C