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HomeMy WebLinkAbout96-01261 ) ~. , f'- ".~ '-J ~ f;f.. , j J ....... -.j ~ v,/ ~, .' i .~ ' --> I l'! I I , " , 'I / f'1LED-<lFl'1CE Cr: T\..I:~ ;:-.",\'I.-\':)r:,~1Y n" "'f' " ,'. 'f'. 01 :.Ii.)" . . -~ i1d l~i' f eL"e. ',,' '.... ..I........ '.... . .', ' 'r.~" I r PENNS'r1.',,<l,'ji). >~ r'- .. III f ;.~ fi: ' . t.:< j (, , . .. l. .. " 'Il , ; ,- I . ) , , , , '.> ( . ~ rot'" ~ ~~ ~ ...')~ I\...i ~ ~' ~" ,~ ~'..1 4. The system was initially installed on 10 April 1995 and included a thirty day money back guarantee. 5. Within two weeks of the installation, problems developed with the system wherein a slime or other material began to develop in the pool. e. Plaintiffs notified Defendant of the problem and Defendant finally came to correct the problem on 12 May 1995. 7. Within lour weeks of that date, the same problems developed and the Defendant was contacted again. 8. Defendant came to Plaintiffs' residence a second time to correct the problem and applied chemicals for the second time to the pool in order to resolve the unclean water issues related to the pool. 9. The problem did not resolve itself and Defendant was called back several times thereafter. 10. Defendant's representative came back at least three additional times, and each time added chemicals to the pool. 11. On or about 10 September 1995, the Defendant came back again to attempt to correct the problem and again put chemicals into the water. 12. Following this treatment by Defendant, Plaintiffs discovered that the pool liner was severely bleached. 3 13. Plaintiffs had purchased the liner in their pool in March of 1995. COUNT I . BREACH OF WARRANTY 14. Paragraphs 1 through 13 are incorporated herein by reference. 15. The Defendant provided Plaintiffs with a thirty day warranty guaranteeing that the Caribbean Clear filtration system would work to the express satisfaction of the Plaintiffs. 16. The filtration system purchased by Plaintiffs from Defendant never worked properly. 17. Despite repeated attempts by Defendant to correct the problems with the filtration system, the filtration system does not work to this day. 18. Defendant has breached all express and implied warranties pr'Jvided to Plaintiffs in that the system sold to Plaintiffs by Defendant has failed to work for itf, intended use in that specifically it has failed to purify the water as claimed. 19. Plaintiffs have demanded that Defendant return any and all sums paid to Defendant for the purchase of the system, but Defendant has failed or refused to return said monies. 20. Plaintiffs have been damaged in the amount of $1,350.00 whir.:h represents the purchase price of the filtration system. WHEREFORE. Plaintiffs demand judgment against Defendant in the amount of $1,350.00, plus interest plus costs of suit. 4 COUNT II - NEGLIGENCE 21. Paragraphs 1 through 13 are incorporated herein by reference. 22. The Defendant returned to Plaintiffs' residence and attltmpted to correct the problems with the filtration system at least five times. 23. Each time, the Defendant added chemicals to the pool in order to correct the problem. 24. On or about 10 September 1995, the last time that the Defendant were at the premises, the Defendant put chemicals into the water that subsequently stained the pool liner. 25. The pool liner in the Plaintiffs' pool was purchased new and was being used for its first full system when it was stained. 26. Defendant owed Plaintiffs a duty to repair or correct the problems with the filtration system and to insure that any steps that it undertook to correct the problems did not caure further damage to the pool. 27. Defendant was negligent in that its action in trying to correct the problems to the filtration system caused destruction to the pool liner itself. 28. The damage to the pool liner cannot be repaired and it requires the replacement of the pool liner itself. 5 29. The cost to replace the pool liner is $2,150.00. 30. Plaintiffs have been damaged as a result of the negligence of the Defendant in destroying their pool liner in the amount of $2,150.00. 31. Plaintiffs have demanded that Defendant pay for the cost of replacement of the pool liner, but Defendant has failed or refused to make such payment. WHEREFORE, Plaintiffs demand judgment against Defendant in the amount of $2,150.00. Respectfully submitted, i MICHAEL L; BANG Attorney for Plain' fs 302 South 18th treet Camp Hill, PA 17011 (717) 730-7310 Supreme Court 10 #41263 6 1",1\\' \ l N.. .\r.,; Ir~':, \)o..k r. 5r)uj\1o..,l ,3.-. -~~wl.......,\,. ~\(Ic\(\,\\'), S'N.l'J\.Q,\ .. i:!v......I.S.~ R.u..;:..~~\ lY\, ~\O\\.~"\l:loLr.) - \:'l1A."~""" , ;:)\\", c~ \ \. L 12\.......r.. 'V'\ "V\ \ ;".. \ \ ( \" .\\ \''',(1\.t:) ..... ("l\\I.:... ~ "p..'A.I...... ...J ,-,v'" -~, O'''\.~)i' \) "'.""lI."'.\\- '''-' , , n ,., .--'., f: <;I' r' .' ::-l -n: :. ') 1;11 C': I ..... --- ~,~ ,....1'1 Zf ':6 (f. e." -: ~,. '! -,. ..:.~ ~' -'- P~'" =:J ,..I ;~ ,~ J.) ~ -: '0 DONALD W. CHESBRO and WENDY CHESBRO, Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-1261 CIVIL TERM GEORGE McCRORY, d/b/a, CARIBBEAN CLEAR, Defendant NOTICE OF HEARING BY BOARD OF ARBITRATORS You are hereby notified that the Board of Arbitrators appointed by the Court in the above captioned case will sit for the purpose of their appointment in the Second Floor Hearing Room of the Old Cumberland County Courthouse, Carlisle, Pennsylvania, on ..~D..day, Ootober 23, 199. at 1130 p,m. Dale F. Shughart, Jr., Esquire Stephen L. Bloom, Esquire Rachel M. Stoltenberg, Esquire r~ DATE: August 21, 1996 TO: Michael L. Bangs, Esquire 302 South 18th Street Camp Hill, PA 17011 Richard H. Mylin, III, Esquire 135 South DUke Street York, PA 17403 Stephen L. Bloom, Esquire 10 East High Street Carlisle, PA 17013 Rachel M. Stoltenberg, Esquire One Irvine Row Carlisle, PA 17013 Court Administrator Cumberland County Courthouse , , ?r: r.n '- ,~. ~ ..3 .: 1& M ~~ ,'-~ "l!: .)2:'~ :J ,,- ~ !._J r :' ,,:-;) r. c. ).~ . !:-~ ~ ..::',J ;r. :-,~(p f-':; ~ .".;,;,- ~ ..0 5 0\ U ~~ ~~ z~~ ~tIltal 8~~~ ll<o > , ~.~.tl ~ ~ "'0 :> \D~ 8i::a~ 10< tal \D III "'0-'1 ...U .S: Zll<oO~ r-tozu ........,.....)....1 '~ ~ lQ tIl ~li1 UlQ tIl ~~ U CI ~~ 8~ < ..... lQ ..... CI ..... '" == ti~ a~~~~lii ~ J <~.b ....~:Ji~ . ";;:.J,~ ~ t:I::iQtJ) .... 9~E~~!? <~~t&Jt:.~ := ~~ ... u ~iil &! -~ Ul > .Q:; ~ra ~o-'I UU ~~ tal tallQ t.:llQ Q:;r-t &l~ t.:lU Q:; ~ tIl ~ the extent a response is required, it is specifically denied that the Plaintiff notified the Defendant of any problems or that the Defendant camp. to correct any problem on May 12, 1995. Strict proof is hereby demanded. 7. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the avermen~s contained within this paragraph and saying is therefore denied. 8. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore denied. To the extent that a response is required, it is denied that there was any problems with the water related to the system installed by D~fendant. To the contrary, any problem was related to the liner. 9. Danied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore denied. 10. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore denied. Strict proof is hereby demanded. 11. Admitted/Denied in part. It is admitted that on September 10, 1995, the Defendant went to the residence in response to a complaint by the Plaintiffs. It is specifically denied that any probiJm was related to the system sold and installed by the Defendant. It is further denied that any chemicals put in the water would have caused any damage. 12. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments, contained within this paragraph and saying is therefore denied. 13. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore denied. 14. The answers to paragraphs 1 through 13 above are incorporated herein by reference thereto. 15. Admitted. 16. Denied. It is specifically denied that the pool purifier purchased by Plaintiffs never worked properly. To the contrary, the system was working perfectly. Any problems caused Hayward Perflex EC-65 filtration system which ~as not replaced by the Defendant and was used by the Plaintiffs during the time in question. 17. Denied. It is specifically denied that the Plaintiffs made repeated attempts upon the Defendant to correct the problems with the installed system. To the contrary, the first contact was made in July 1995, at which time there was no mention of slime. The Plaintiffs were advised to purchase a adequate test kit so that the ph level could be properly maintained. Furthermore, Defendant is without information or knowledge regarding the working conditions of the filtration system which was not installed by the Defendant. 18. Denied. This paragraph claims conclusion of law which require no response. If a response is deemed required, Defendant denies that it has breached, expressed or implied warranties. Furthermore, the system has not failed to work for its intended use. To the contrary, during any inspections by the Defendant of the pool liner, it was determined that the system installed by Defendant was not causing the problem. Proof was provided to the Plaintiffs at that time. 19. Denied. It is denied that the Defendant caused any damages to Plaintiffs or that Plaintiffs are entitled to a refund at the end of the pool season. 20. Denied. It is specifically denied that the Defendant has caused any damages to the Plaintiffs and that the damages sustained amount to $1,350.00 for the purchase price of of a automatic pool purifier. WHEREFORE, the Defendant requests that the Plaintiffs' Complaint be dismissed and a judgment be enter it's favor together with costs and suit. 21. The answers to paragraphs 1 through 20 above are incorporated herein by reference thereto. 22. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore denied. 23. Admitted/Denied in part. It is admitted that the Defendant added chemicals to attempt to resolve the problem in the pool. It is specifically denied that the problem was in any way related to the pool purifier installed by the Defendant. 24. Admitted/Denied in part. It is admitted that the Defendant again came to the premises and proved to the Plaintiffs that the purification system was not the cause of the problem. It is admitted that the Defendant put chemicals in the waterl however, it is specifically denied that the chemicals would cause any staining to the pool liner. 25. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore denied. 26. Denied. This paragraph claims conclusion of law which require no response. If a response is deemed required, Defendant denies that any problems were a result of the pool purifier installed by the Defendant. 27. Denied. This ~aragraph claims conclusion of law which require no response. If a response is deemed required, Defendant denies that he was negligent in trying to correct the pool liner problem. It is specifically denied that any problems were related to the p~ol purifier system instnlled by the Defendant. 2S. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore denied. 29. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained within this paragraph and saying is therefore 4. The system was initially installed on 10 April 1995 and included a thirty day money back guarantee. Attached hereto and marked as Exhibit B is a true and correct copy of the written guarantee. 5. Within two weeks of the installation. problems developed with the system wherein a slime or other material began to develop in the pool. 6. Plaintiffs notified Defendant of the problem and Defendant finally came to correct the problem on 12 May 1995. 7. Within four weeks of that date. the same problems developed and the Defendant was contacted again. 8. Defendant came to Plaintiffs' residence a second time to correct the problem and applied chemicals for the second time to the pool in order to resolve the unclean water issues related to the pool. 9. The problem did not resolve itself and Defendant was called back several times thereafter. 10. Defendant's representative came back at least three additional times. and each time added chemicals to the pool. 11. On or about 10 September 1995. the Defendant came back again to attempt to correct the problem and again put chemicals into the water. 12. Following this treatment by Defendant. Plaintiffs discovered that the pool liner W&S severely bleached. 3 13. Plaintiffs had purchased the liner in their pool in March of 1995. COUNT I . BREACH OF WARRANTY 14. Paragraphs 1 through 13 are incorporated herein by reference. 15. The Defendant provided Plaintiffs with a thirty day warranty guaranteeing that the Caribbean Clear automatic pool purifier would work to the express satisfaction of the Plaintiffs. 16. The pool purifier purchased by Plaintiffs from Defendant never worked properly. 17. Despite repeated attempts by Defendant to correct the problems with the pool purifier. the pool purifier does not work to this day. 18. Defendant has breached all express and implied ~'arranties provided to Plaintiffs in that the system sold to Plaintiffs by Defendant has failed to work for its intended use in that specifically it has failed to purify the water as claimed. 19. Plaintiffs have demanded that Defendant return any and all sums paid to Defendant for the purchase of the system, but Defendant has failed or refused to return said monies. 20. Plaintiffs have been damaged in the amount of $1,350.00 which represents the purchase price of the automatic pool purifier system. WHEREFORE, Plaintiffs demand judgment against Defendant in the amount of $1,350.00, plus interest plus costs of suit. 4 COUNT II . NEGLIGENCE 21. Paragraphs 1 through 13 are incorporated herein by reference. 22. The Defendant returned to Plaintiffs' residence and attempted to correct the problems with the pool purifier at least five times. 23. Each time, the Defendant added chemicals to the pool in order to correct the problem. 24. On or about 10 September 1995, the last time that the Defendant were at the premises, the Defendant put chemicals into the water that subsequently stained the pool liner. 25. The pool liner in the Plaintiffs' pool was purchased new and was being used for its first full system when it WllS stained. 26. Defendant owed Plaintiffs a duty to repair or correct the problems with the pool purifier and to insure that any steps that it undertook to correct the probloms did not cause any damage to the pool or pool liner. 27. Defendant was negligent in that its action in trying to correct the problems to the pool purifier system caused destruction to the pool liner itself. 28. The damage to the pool liner cannot be repaired and it requires the replacement of the pool liner itself. " 5 -. r3 >-l CIl p., ..; z ..... 0 Ii ~ <Xl ,... .... ~~ ..... e-. .... "-l ~~ Q U ~ ~;. I E-t r..I 8~ <Xl <Xl '0:: .., <Iii;;: >-l CIlCll ><..; <Xl ><< < 0 ,... r..Ir..I gjtj 0 ::<l .; f:i;. J r..u :> tt::I: 0 HI UU o::U >< . >::.l;:! ~ 0 U U ~ =~Ql'IJ t:: E-t~..; .>< CIl uz ~~=~;::'t:. c:: ,....... :J:O :> 2:r3 I-< ~ ;:.. ::> ~\Q Z ,... ~~"8:!-= o N Oral r:l<Xl 2: iiJ . ... Ur..I:>.... >-l:J: ~<Xl ,... 1;) ~~ ',d ~>-ll ..; C::H >-l g:; -~ ffl ~:;: ZO 00:: r..I 8~ r..I"; 0:: E-tUZ ~U p., Z . Zr..ralO HOP;Z g 110 Ii I O~ ~ o .... 1ka0 ::- o ...., ~ ~~~\~\ O~~'" Olol ~:;I' ail lol >0'" = UlCl\ t<0:Z :Z1ka~O ....Ollo:z ~~ III III UlUl ralral == 00 . >0 en ~O :> :z ~~ 8~ .0: ..... III ..... o ~~ ~o o i!a fillll t.?1ll 1>:.... 01>: ~~ en :z o .... t< U fil .., III o >0 ~ .... :I: .... ~ ~ 110 _ 13 ::: Wt! 7. tol- _ 0:< ;1. :;: <!ii;?~, ~ ::!! ~~~~ :ti EiJi~~ Cl :::i~ ;:: t- o: t'~~" .0( ~~C~ :t: ~" '" :::! ~~ ~ ....~ failed to state a claim upon which relief can be granted in that they have a lack of compasity to sue the Defendant/George McCrory. WBBRBFORB, Defendant prays that the Complaint be dismissed with prejudice. II. J<<>TION FOR IiDRB SPECIFIC PLEADING. Count I of the Complaint reports to assert a claim for breach of warranty. Pennsylvania Rule of Civil Procedure 1019 requires that the facts supporting the caU2e of action be p1ea~ with specificity. Pennsylvania Courts recognize that broad, vague, general allegationE of breach of warranty are insufficient to state a claim. WBBRBFORB, the Defendant request that this Honorable Court to order that the Plaintiffs' Complaint be dismissed, or in alternative, require the Plaintiffs to amend the Complaint. III. FAILURE TO ATTACH WRITING. The Defendant oejects to Plaintiffs' Complaint on the basis that the Plaintiffs failed to attach copies of any warranties establi3hing that the system would work to the ..... .0- C~---NWlALfM Of .......V\VANIA couti,- OfC~ ,LUs NOllel O' APPlAL fROM JUlNCw. DlI'IIC' DtSlltCl JUSltel JUDGMINl c__,u.u_ 96-l26l Civil T'lrm NOTICE O' APPEAL Notice it r;- tf10t !he appeIlont hat Hied in !he abovo Court 01 C""""OIl PIeo. an appeal from .... j~t ronderod by !he Oi",iet Mtic. on !he ..... ard In !he CON ..,tlonod ~ ~~;;-MCCRORY, D/B/A CARI;~~~N .~~~~R-_~_~=--__~=-~J:::~~;NAMH#01 .. -OfNflllJ,NofT UIY "1f.i lIlCODI 700 HILL STREET ._____.,___XQBK...._.____. PA .~~ 17403 :iJ~~' I"THlC"'''''_1J WENDY CHESBRO '~i CARIBBEAN CLEAR 02 <D' OO'A"" W. CH'SSRO.,,[", .AHtil' ':li~~~fH>V dlbfd CV II! 0000507-95 -r> I ,// -Ze -=- - f(j LT 19 ..f!,c~ H ") ~ - ,.UL ,c. f'tl Thio block wi. be IigI>od QIoIlY when this nolatien i. required under Po. R.cP.JP. I'b "arJlJIlI/'ant was CLAIMANT (see Pa. RCP,J,P No. 10081. /""- , , '., Thio Nolie. of Appeal, when recoived by the Di.triet Jo.Iie., will operote as 0 100 t (6) In action before DIstrlcl Justice. he MUST SLftR5EDEAS Ia!he j~t"" _lion in this ca.& FILE A COMPLAINT within twenty (20) days after filing hiS NOTICE 01 APPEAL. SigJatum 01 Pralhon_y Of Deputy PRAICIPI TO INTER lUll TO FILE COMPLAINT AND RULI TO fill (Thill ssetion 01 /cxm to be used ONLY when appellant was DEFENDANT (see Pa. RCPJ,P, No, 100t(7) in action belCJ(/J District Justice. IF NOT USED. detach /rom c~y 01 notice 01 appeal to be seIVed upon _11ee J, PRAICIPE. To Prothonotary Entw rule upon nOtJAT.n W 1"T-IIi'SRRO E'1' ilL """",'oI_s) (Common Pleao I'b 96 -12 6 1 C i V i 1 Term ) within ~ty (20) day. after ...vic. of rule or .ul'" ""'ry 01 ~ of _ PI"" -n C-'"' J...,,~ /,/. '7- .... - €f'Il1, . ?,"oI_ot"'_ot__ ' , , appe8H(.). Ia ftle a comploinl in this ........ RULI. To nnrJllrn tAl f"R~c;~ iT AI. Nane 01 s} , OFIF.""(I~ (I) You en no~fied thaI a rule it he.eby ""tered upon you Ia file a complainl in this appeal within twenty (20) days aftw !he dol. of MrVic. of this rule upan you by p....enal ....ic. Of by certified Of registered mail (2) If you do nol ftle a complaint within this Hme, a JUDGMENT OF NON PROS W1U BE ENTERED AGAINST YOU.~ Dale: March 7, (3) The date of ...vice 01 this rule ~ _vice _ by nlCIil i. !he dote of mailing. f 96 .19_. ~ ~' .tQPC Jt~... b '..... , -- \ ") ~1 '* 0 \, :) '" "" --. '," I~ """ -:: ...... " '; ", oj - 11: '" '.... "~ " ,"- ,,- -.....' ~ , .... ..... " , -.- ... 1 , ' '-1 ......... ~ 'o! 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