The URL can be used to link to this page

Home My WebLink About96-01444 ~ '1 ~ ;t ......,..,.\ "-., ,/ /' .. , I ~ J j I , i ~ I ~) ~ ~I ~I r' it I I I I I I LEONARD E. YORTY, SR. and KAY YORTY, husband and wife, Plaintiffs : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. NO. 96- /'1'1 Y CIVIL TERM . . APPLEBY WINDOW SYSTEMS, a division of APPLEBY SYSTEMS, INC., Defendant COMPLAINT 1) Plaintiffs are Leonard E. Yorty, Sr. and Kay Yorty, husband and wife, residing at 2421 Spring Road, Carlisle, CUmberland County, Pennsylvania, 17013. 2) Defendant is Appleby Window Systems, a division of Appleby Systems, Inc., with offices at 1BOO Trolley Road, P.O. Box 948, York, York County, Pennsylvania, 17405. 3) Attached hereto, marked as Exhibit "A", and incorporated herein by reference, are written documents constituting a contract by and between the Plaintiffs and Defendant in reference to the construction of an Appleby patio enclosure at Plaintiffs' home. 4) The materials and/or workmanship provided by Defendant in reference to the project was substandard in the following: A) The Appleby contractor installed a dormer/cricket with an inadequate roof slope. B) There is no drip edge installed at either side of the dormer/cricket. C) One edge of the dormer/cricket has the starter strip improperly installed. I' , I II II I I I 0) The wall connection tie-in at the upper edge of the original standing seam metal roof is not counter-flashed into the siding. E) The dormer/cricket is tied to the existing standing seam metal roof with copious amounts of roof cement. F) An inset was cut into the standing seam metal roof and the standing seams were not folded and crimped water tight. 5) As a result of the foregoing deficiencies, the patio room has had many leaks. As ~ consequence, the Plaintiffs have I received estimates as to the .x, ~nse of doing the work in an adequate fashion. The dormer/crl~1ket roof has to be removed and replaced with a new roof, tying thn Appleby room with the existing home, which will cost $6,210.40. 6) Either due to the contractor installing the plywood sheeting after allowing rain water to collect on it prior to the installation of the patio room, or due to the water infiltration after the patio room was installed, the plywood used has warped. This plywood sheeting will have to removed and replaced at an estimated cost of $1,200.00. 7) The carpet that was installed as part of the project will have to be replaced due to water damage, as well as the situation with the plywood sheeting. The cost of the carpet replacement is $807.02. II1.H9.CRTOI0194,11LtJ RKW CONTRACTOR CERTIFICATION AND INDEMNITY AGREEMENT Mortgagor: Leonard E,. Sr. & Kay H, Yorty 141 I Spring Road Carlisle. Pa. 17013 Mortgagee: Blue Ball National Bank P.Q, Box 580 Blue Ball, PA 17506 Contractor: Appleby Window Systems l800 Trolley Road POB 948 York, Pa, 17405 Consuuction Loan Agreemenl: Consuuction Loan Agreemenl dated October ll, 1994. all terms and conditions of which are incorporated herein and are made a part hereof. including the detinitions of all proper nouns, KNOW ALL MEN BY THESE PRESENTS, that Contractor, in consideration of the making of final advances under the terms of a Construction Loan Agreement. hereby ceroties that all materials required for the completion of the Project bave been delivered 10 the Project and have been installed thcrein; that all work required to complctc the Project has been complcted in full; that Contractor has paid in full all matcrialmcn. subcontractors. and employees utilizcd in connection with the Project; that no cvcnt of default exislS under the temlS of the Construction Loan Agrcement; and that ContraclOr makes all represemations as set forth herein with the intention that MUl1gagee shall rely thereon in making advances under the terms of the Construction Loan Agreement without requiring that Contractor obtain a Reh,.ase of Liens from all contraclors, subcontractors, and matcrialmen, ConlraCtor agrees to defend, indemnify. aOLI hold hannless Mortgagor and Mortgagee from and against any claim. action, demand. caWiC of action, or suit, of whatevcr nature. which may at any time arise against them or any of thcm in favor of any conlraCmr, subconlraCmr, or malerialman in conru:ction with the Project, Further, ConuaclOr hcreby W'arrams that Contracmr has becn paid in full for all sunlS due ConuaclOr in conru:ction with the construction of the Project, and ConlraCtor absolulely releascs Mortgagor and Mortgagce from any and all claims. actiOllS, dcmands, caWiCS of action. or SUilS, or ..hatcver nature. which regards tbe ProjCCt, e.ceptinll payment undcr the COllStruction Contract. in full satisfaction of all claims, CONTRACTOR HEREBY IRREVOCABLY AVTHORIZES A,W PROTHONOTARY OR A,'l/Y ATTORNEY OF ANY COVRT OF RECORD WITHIN THE UNITED STATES OR ELSEWHERE TO APPEAR FOR IT A;IID TO CONFES.~ JVDGMENT AGAINST IT FOR ANY A.\fOVNT WHICH IT 'fA Y BE OR BECOME LIABLE l:;IIDER THE TERMS lJt' THIS AGREEME;IIT TO MORTGAGOR OR MORTGAGEE, VPON THE flUNG A.'I/ AffiDAVIT SETTI;IIG FORTH THE EVE;IIT OR EVE;IITS OF DEFAULT, TOGETHER WITH I;IITEREST THEREON AT THE RATE m' TWELVE (12%) PERCENT PER A.'l/NV\I, AN ATTORNEY FEE FOR COLLECTION OF FlVE (5%) PERCENT, BVT 1;11 NO EVENT LESS THAN Two THOUSAND FiVE HL":\lDRED ($2,500,00) DoLLARS, ALL COSTS OF SVlT, RELEASE OF HEIRS, A.'l/D WAIVER OF APPEALS, AND WITHOVT STAY OF EXECVTION, FVRTHER, CONTRACTOR HEREBY WAIVES ANY ALL RIGHTS OF INQVlSITION ON ANY REAL ESTATE THAT 'lAY BE LEVIED l:PON TO COLLECT THE A."OVNT OR A.\IOV;IITS DL'E VNDER A JVDGMENT OBTAINED BY VIRTL'E HEREOF, AND CONTRACTOR DOES HEREBY VOLUNTARILY CONDEMN THE SAME A.'l/D AVTHORIZES THE PROTHONOTARY TO ENTER l:PON A WRIT OF EXECVTIO;ll SAID VOLUNTARY CONDE:\INATION, A,'l/D DOES HEREBY f'liRTHER AGREE THAT SAID REAL ESTATE MAY BE SOLD ON A WRIT OF EXECVTION, AND IT HEREBY WAIVES AND CONTRACT SPECIFICA TIONS APPLEBY SYSTEMS, INC. fllf."llfv 11IIhll"lJ" d~,i'I~)tl~lo~.~j) ()\~J,~( N~q~p ~!!~i~~oN (~r~~,~:~'Wf'J\) ':JjiVj( M.,lln9.dd,..lt6tli\(':) €' ,V O,U ~ Sf... (-/) '\1...\ 1. \} I\J Custom., N"m. ." ANt) "om. Phrm, \ J 0\ -}. )' mu.. . _ ~'1 'I1J~\l DE5CRIPIION OF WORK ACREED UPON TO FURNISII AND INSTALl APPLEBY PArIO HlCLOSURE WITII HtE FOllOWltlG SPECIFICAIIONS, 1, WOll@IO Includ", II)(lL~ "ANO e.!-;,ml.\l""Jt~ ,@,c. 1,1,'.'.0,.,1 1~It'V~~~,IDJ:tI~lit fJ'N.L @ Wall @ 10 Includ", __, ,\I.L I~"-"-f Ifr- .1v-\1"'k'!J~ .~~I}L~Um CIRCLE ONEl"Af..\(t tl~l..(" W,\'-l~ KNEEWALL: GLASS I@ Woll@ 10 Includ", ..,.\. ~l ~jl.1 -TRAN30M,..ebr,SS+PANfL ])In It. (\~ t-lIt V11ip ROOF INSIDE, WI~lTf ., ......_ ~BLi~), WINGS, GLASS I ~~~!'0~!I'!IJ{)h_yJ\I' 1))'Yc::> SIDEWALLS: \tillii.( 11tJ.l!lL~ IN ur:ATED ~LOOA'@}INO .' _V~I.n\ \~I.~lr( f~~ .~-JH ~l> ,. -'-"-'--" ._---'--, ~1- APPLEBY ~~J. '" J Willdlnv Systellls , . ._::-::",,="".=.,:':..._,",-_:'_:~_._':,-,--_:_-_. CENTRAL DISTRIBUIION AND MAIN OffiCE A' 1800 IROLLEY RD, P,O, BOX 948. YORK, PA 1/405 O,d., 'Of WOl" .p.d'l.d b.low on rm'l/N HI} 0 r Jt:; APPROXIMATE SIZES , ' , , : : : :!l~,!~I, ~~l.l~ , , , ' , , , , ' r lJ-oJ @ J_ ENCLOSURE AI'S/'t)/PA H... ~II".. u.. "...,1. .."..,j .. 0111... -:.."...., Nn '0 c,.... (h.,to.., b, ; sUlJo,.d al fA 1~lrJ',,1 ItJGI? flip' os lollow.: WQlIc Phone IW<:O, H\.kv.; DICK SIZE, _-=- >c ROOF SIZE: ...10..- lC iL_ I ~OOF fVPE, _,.. Sludlo .!o__ Gobi. ROOF DORMER WIDIH, IG 1# OF SKYLIGHfS ~l,;'O(~(lt COLORS ROOF OUrSIDE, ..J~HUf REMARKS: ~\Nfi)e(l b)lS,t\(; ()I:(l... /N'')TAlL (oi/(}N (".!rJOY (4QPH f~~f lbx '1- ~j)(:. I~"ll ~\.'(~MI) nec~ lNHltJ~l~llN0(d.()N~) 1\<.1<' [CANCILLA TlON: 'he product. listed nbo'l. ore to be built 10 order for Buyer and Ih.r.for. Iho. port 0' Ihls ogre.ment connot b. (hO"9~d, (O"~O"~d, ~.~:. ,;;I:d ~,' :;>C~~:~::'ln ~hOIO 0' .In port bV P,:. ,'(hO':',~, ~(o~, ',:0 Iho 'Oel'IO': -lin.,.-;;, P',O,VI:.d-h.r.ln or _~_!.'~~rltt~_~.~ns!"t b~ I~~ ~~~!,?~~!,_. __......___._.._._ _._....._.__._____... . ____ __________.___..__ Wor"men', Comp.-n,nllon olld Public: lInbillty hnuranc:. I. c:drrled by the Compony, OI1lJ I, opplh:uhle to Ih. wor!. 10 b. plIr'oflned under this controd. War. to be perfo,med oc:cordln9 10 to. 'pec:lflc:otlon.. Oebri' "ortllob will be ,emov.d (u"nnuft I' re.pon,lble '0' ony I"fttrlof pu1nUn9 Of .'alnlng. Th. Compony heflthy p,opo'.~ In 'urnl,h lobof ond mOI.rlol '0 c:omplele ,he ubovlt wad, 'or Ih. amount h.reln. AND IN ACCORDANC! WITH AND SUIlEer fO 'HE TERMS AND CONOHlONIIj ON TIll REVERSE SIDE, which ore hereby mod.. 0 pari of ,hilt ag,eem.nl. , 'JJJ ,?jt,(b P,'d wllh Q,d.. I ICho,k I I Co.h , fulfillment of this order i, cooling!nl, howe".r. upon ,t,ilces, fir... ability 10 Qbloin materiols.or Ih. CJbill,y to oblain any govtlnm.II' !lunu Of permit lIfh.,. ",c.ssor.,. or olh., condition, beyond .he conrrot 01 the (ompony. lhe (OtnJIO"y is hP.rltby outhlJfi,ttd to Imer. Ihl dal. or\J dUI cia', on any ligntd nol. or re'oilln,'aUmttll conlrac', 10 conform wilh lh. poyment 'erms htrflin. lhe owner h) OIf"Hh' 10 poy ,he conlfoc' priu h.,lof wh", dull, "lid in Ih, '''''fll of default. to pay inllftt',hertofh', at .ht I. ral., IlIctpl 01 olh,r.i" requi,td by 10". -,he omounl '.'0-". on Completion sholl b. paid upon 1M inslaUotion af 011 mattfiafs 0' dtKribttf "lln. In 1.lnl of "foult on payment. own,,, lJQI'.' 10 IPOY allllf'nlY" ,..s of 25 % fwhich ore dttmtd ,eotonabl,) qn unpaid balonet thtflof i' pllKed with ollOfn,y for colllCllon, flolanee .ill be flncn::td by adding finanel ChorVI occDfdlnglo Ifporal,sJQMd nol. Of'r.loillnsIGtlmtn' conl'act. s.. ,tlarld not. and DIKlosure Stol.",.nl Of R,'all Ins'aUm,"' Conlroct ("...... Q9Plkobl.,. NOTICE TO IUVlI!: Do not .Ign .hl. co..lroel 10.'0'. 'au ,a ad It, You a,. .n. tI,'.d 10 a campla,.Iy 'lII.d.ln copy 01 'hi. ag,..m.nl 01 Ihallma you .Ign II. If IIln.ol... "n Inllallm.n' .01., und., .tat. law 'au hay. .ha .,.hl to po, off 'h. 'ull amount duo In ad.anc. and und.. c.,'al.. condition. 10 obloln a pa,lIa' ..bot. 0' tho fin ""c. cha,g.. fn 'M IYln' rhls lntlrumtn' is contlrued 10 b. a consumer credit controcl, thl followinl nollt. II ,i,"n, An, hold., 01 thl. con.um., c..dlt conlroell. .ubJOel 10 all claim. and d.r.n... whIch the d.bto, could o...,t again.' ,h. ..11.'0' good. a, ....Ic.. obtained punuctn' her.to or with th. proc..d, h.r.of. I.co.." h.r.und., b, .ha d.b'o, .hall not ..cud omoun', paid 10, 'h. d.b,o, h...und.,. Cash Prlc. Poo;nbll'l In 10 Joy. , t , ;)'};dtA,iv 'ayobl. on Cornpl.llon- Iqlonced '0 b. Flnonc:edt _ .__ . 4't Cui., ~fe ~.'1j ~, Iy - ~. '....,.11.. You, Ih "'b~'!er, mo,! cancel Ihl. hon.actlon 01 any tlma prior to midnIght of Ihe Ihlrd bu.lna.. do,! afler tha date of Ihl. hon.actlon, S.a the notice of canc.Uatlon or racl.lon form furnl.had with thl. agraemant for an ..planatlon of thl. rIght. Th. company rataln. an aqual right of cancallatlon. (All .19n.,. mu.' "9" !"sonally) ~ ., _u '~\~ n___ _=~c2.J,u-!"~ (:~ ~l- .1..'" .,~ ~-r) < .~ \ '~-' - ' ,__ . ~. J~.t\,:.. _ ~, _ ~.. ._____ 'hi. I. . It'ndln, c:enlred, I .v. c". u_lIallon ,,'rc.~1 10 ut. ~ro,,'''.'' ~""aw. \ 'hit tOfI'fl,..t td"." ,,"d ,,,,,.,,,,01.. nil Cnn"'."rtflom. 5I1"."'e"" and Agreem."" e.p'e..~ t)f hnpllifHi ""f~.'" ,h. parn.....~ftJjf nq""" r" '.pr...ntoll.... TlRMS AND CONDITIONS I bupl 10 the ..I."t oth.,wl... ..p,..~d., pll)vlded It., nppllcnbl.law, III, ..II(1,.nly ullfi."rood Gnd tl9,..rt Ihallhl, conhact I. bindinG Imn..,'lol.l., when "Vllltrt Duff (onnol b. (nllcltfl.rt Ih.,.o"., tint..! It I, 'lI,'h", og,..d .hal Ihe CU,'o,".,I.) ,hall poy 10 .he Camp""., en U"uhfn..,' dQIlU1q.. fa, h'.l1ch 01 COIII'DCI 0 .um Qmo","llIq'o "..~ allhe co,h (on"acl price lor In cn,. 0' porllo' ,.,form"",.. 'h. prnporllono,. (onlllxl p,lcltn' on., WQ.h p.,'o,m.d ph" 15". o' 'h. bfllnlU:. of Ih. Co.hconlfoct prlnl, If cu,'om.,ftl I.,mlno'.h) .hlt oq,..m..". wllhou' "u, CO",.", 0' Ih. Company 011., ..plrl1t1on 0' on.,. cOllullollon time IImll allowed by low, 'Ofllo' p.,'o,manc. ,hnlllndUf'" th. oul.rlng 0' mot.raUII, J, 'he fold cu,'om.,',) 011".(') Ih"" prlo, 10 the pnym."' In full 01 the con"ncl p,lu. tIll, .old p,emlte. Impro"ed he,eunde, will no' b. .old, morlgo;e aulgned or olh.rwl.. r.mo"ed or dl'pol~ of. 3. 'he laid cUllom.r(t' hr".by nulhor".ls' .old COlnpon" ondior ogr... 10 uhll".ln cOllt,,"1 '0' told Compnny. 10 Itnl" upon Ih. laid pr.mil.. Ollrt 11"., n"lnllllllq pr'nll'l", II "eCeuOI." In Old", to e."oble .old (OI1lPUI1Y II) comn",nc. ond, 0' compl.,I. Ih. wo,k 'a b. per'lnlne" h"eund.,. ond it I, ulIl'"r,lood Gild oO,,,.d Iltnl, In Ih. '"onl ,nld Cnmpm,y ,hl1l1 be p,ev8n'"d horn 1I"""'n4 upon Ihe .nld pr.ml,,,, or Ol'Jlnllll"q p'~lIIh.' ourl .holt Ih".b\, he pr."'nted Irnlll cnlllplfllhlq Ih" .old Contrnd, Ih"". In'hole"."I. lold (QIII(lnll" "hall hit ,,,11,,,,...,, "nlll fUlIlu" Iil1hlllly h",.unrl., nm' th. Inh' c...lolllr,,(.) will hl1ln"r'luI"I., po., to _old (nlllp""., Ih. p,opnllltlll I'lf Ih" ,ollhnc' pIle., ~p"(I'I",1 011 Ih, ''''Ilt''. lid" h.r.o' '"pl",,,..'",1 h,;, ,11" Inhor p.f'orm,d 0,"1 "tel,.rlul. flllIl "' Offici". Ihen deli"",,,cI pili, tlurnnqtt' In Iho .old (ompnny 101 10" 0' pro'II,. "Ie .. It I, 'urlher unde"'ood and flQ,..d Ihul, In Ih. .".nl 0' Ih. d.fault In mokln" nn., 0' Ihe poym.nl' Ip.clflr,d In Inle' ennl'oe' 0' r.ln,ed no'., 0' Ih. Inme thoU 'nil rlue, or In Ih. ."e"' thnl, prlo, 10 poym.nt 10 full, Ih. cuslom.rft) Iholl..II, "10,t909., ol,lgo 10' o.h,uwl"" ,,,mn...,, fir dl'pn'l~ 0' 'lllld ,Hfllnhft'lIt"I'"o".rt h.r.umJ., or IHlY port Ih.,,,o' I)f II nny nllndunttllt, WIlt or ollutf ploett~' tholt b. '."..d Ogolll" If.. .o,m" 0' II rt"lnult b. rnntl.ln Ih. paym'n' 0' In... Ih""IOI1. '.11111, In on., Ivch ,,,'"1, ,h. ellthe unpaid bofnnu, Ih"n ,,,,"0InI1l9 UllPI1Ir' ,hnll, nt Ih. oplloll 0' Ih. hold.r th.,eo', and willmul nnll,It In 'h. ,Ig"er(,), b~eor",' hnll1ftdhl",r., due ond payable S. Ih. Company do., no' ottum" IlobUlly lor nn., pr.'.'llIng condlllon' 0".' which It hn, no contra', ,uch as bu' not limUed 10, Ih. mlsollgnment 0' cllI'om..(s' p'''I.n' window Of door "omII", ..1I1.m..", ", 'h. building and conden,ollon condlllOIl!l. 6, ADDitiONAL WORK. 'h. cl)nlrl1(1 pII,. h.f.ln Indud", ani., th. U.m, pvrdlfl"IC', 0'"' on., oddlllcnol wo,k ,..",If"f.d h., Ihe clJllom"('J ,hall h. cha,g.d In addUlnn h.,e'o, pro"ld,d, 'lOW...,." lhol the (mnpn,,'f ,hnll ad"I.. cu.'omer(,) 0' Ih. addlllonol charge prior 10 ,h. cOlnmenUln""I 01 oddlllonal wo,k. 7, 'he Compon, will p,ovld" ,er...tce, wllhoul cho,ge, 'or a period 01 0I'l' yen' Itom dole 01 pUfchal. In accordance wllh warronlv hom the manu'och".. 1,!Sued 10 Ih. buy..,. $4''Ilee ,h,,1I b. rend.reef b., 'h. ('Il"r'IllY b.'w."'" 8'00 rJ m, nnd 4:00 p.m. on we.kday,. 5.,...le. ,."ue.'. h,vond 011" y_rn 0_ nolln occordnnu with warranty InUIII' ,,~ IIulI mOflufndurer thall b. chorgod 10 cu'tomert.) 01 'h. p"vollI"g lobor '01., I. Cu,,""''''t,,) or.knowl",Ig,.(.) Ihnllt hu'l hnfl" ,npro",,"loo lu Ih" cu'lolnltr('llhul tu,,'olllftl('l will ,!tutl".. n mnnu'oclu, ",', wall,:mly eWMt 'I) du. ru".,., tt.hlhUm' .pnclnum a. tlul' w""onl, o"or (ol11p'.lIon o'lnh plovl,lIl1q Ihn"I' I, no d.'ou" o' nn, p"VIll"n' or In"olI".nl, 'hn' mny be dlJIII. 1111'1 [I,."",ull(') furl'utl orluNJwlIH'gl!'(!lJ thnllh" compOlly hn. nlfIIl", 110 olh., wo"oolh" nr I~'.'.nlnlloll' with '''p"cI'o Ihl. COII"Otl. 9, " I. ngll'fH'I thof 011 p'OJnl'lt'''l, undn"tllfldlllg. 01 no,nolne,,', n' Qll'f kind prHlnlllhlQ 'n 1111, og'..ln"nl, nolmelllloll.d It...ln or. h.,.hy .lIp,."I., wol".d olld III, ogr..d 'hol lold Inthum"n'(sl .holl COI1'lllllJte Ih. 01111,. ogr..",.o' b.'w."n Ih. porflet, and ,hall nol b. n'MIII." In any mOlm"r n(.pl In wrlllnq "gned b., hoth pOllhl'l 111'1 "Jrlh", undentood ond ogr..d 'hol 'he rlgl'I' and IInbllitl., h.,.,ln 91"." 10 tit lmpo,,,d upon .lIh.r ollh. par II.,. Iholl .lIlond 10 Ih. lue(tuon. ...culors, odmlnlslrolon and oulgn" of ,ueh portltt, 01 though Iho) w.,. In eoeh co,. nom.d, 10, Ill. ogr.," thai In nn .".nl "holl 11'8 Iioblllty 0' Ih. (ompolI., _lIetod I'ut cOllhocl p'le.. ar:.:........-...". .... ...,..', .,. .......... i " ,.f) , .. - . ,. (1' l ", t'." l,,)" : , C', , : ;: L . , '. ,- i-J ,J :-:, .., " '" :> ~" ~ -r \.:J'"' .. ~ [ I ~ ~ ~ i~~ ~;8~ o en ~ ~ 8 ~u H Z ~ ~ u :z: ..... J .. (,1 III .:1.... ~ '; .'tl ~ ~ . 'tl '" ><<='" HlU'" ~~~... ><,:: . Col ."" ~t 00 ~: ;:l u :z: ..... . ;;. . .~ ~.... Hen "'>< ><en '" H 3~~ ~""~ ...""... 3<Col .:1 ><'" alO ~:z: 0.0 0...... <en ..... ;;. ..... "l )-., I"- "1 .,. -d j '" ~ ~ ~ 11 ~ ~ ~ ~ ~ ~ ~ ~ ~ .. ~ 5 ~ ~ C2 !:: I/) t3 ~ :z: o ..... .... u < ...1 ..... ;;. ..... u . . (B) Admitted, but only ~o the extent that no drip edge per se was installed, The installation of a drip edge was not necessary or required to carry out the terms of the contract between the parties, but the work done by Appleby created the same effect as a drip edge, (C) Denied, (D) Denied, After reasonable investigation, Appleby is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 4(D) of the Complaint, and the same are therefore denied, By way of further answer, Appleby did not do any work related to the siding connected to the original standing seam metal roof, (E) Denied. Appleby used a liquid fiberglass bonding Qgent, not roof cement, and used the proper amount of it, (F) Denied. Appleby did not cut an inset into the standing seam metal roof, and therefore did not need to fold or crimp the standing seams. 5. After reasonable investigation, Appleby is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 5 of the Complaint, and the same are therefore denied. By way of further answer, Appleby denies that any part of the patio room or other work done by Appleby at Plaintiffs' home has suffered any leaks or other damage as a result of Appleby's work, - 2 - . 6-7. After reasonable investigation, Appieby is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraphs 6 and 7 of the Complaint, and the same are therefore denied, By way of further answer, Appleby denies that any damage to the plywood sheeting or the carpet was related to its work, To the contrary, such damage was the result of the level of condensation that Plaintiffs created in the patio room, WHEREFORE, Defendant Appleby Window Systems, a division of Appleby Systems, Inc" requests that this Court dismiss Plaintiffs' Complaint with prejudice, and award it costs of suit. NEW MATTER 8, Appleby incorporates herein by reference its answers to paragraphs 1 through 7 of the Complaint, 9. On or about August 31, 1994, Plaintiffs and Appleby entered into a contract ("Contract") for the construction of an enclosure for the patio then existing and attached to the rear of Plaintiffs' house ("patio room") . 10, The Contract was signed by both parties. A true and correct copy of the Contract is attached as Exhibit "A", 11. Plaintiffs' house wa~ a one-story structure ("original structure") with two additions: (i) an additional bedroom and bathroom ("bedroom addition"), and (ill an extension of the kitchen to the rear with a deck attached ("kitchen addition") , - 3 - -.,' 12, Under the original terms of the Contract, Appleby agreed to do the following: (i) reinforce the existing deck, (ii) install a plywood floor over the existing deck, (iii) install carpet on the existing deck, (iv) construct and attach three walls to the kitchen addition, (v) install aluminum finish on the existing partial I'oof over the deck ("ov'!rhang"), (vi) install a roof completely covering the deck ("patio roof"), with two skylights, and (vii) install panels in the gable on the side walls. 13, Under the original terms of the Contract, Plaintiffs would pay Appleby $23,800.00 for this work, and Appleby would finance that amount in full, 14, Between on or about August 31, 1994 and on or about October 24, 1994, the parties orally agreed to change the terms of payment ("Change of Payment Terms") . 15. Under the Change of Payment Terms, Plaintiffs agreed to make a down payment of $7,933.33 to Appleby, and pay the balance of $15,866.67 upon completion of the work. 16, The Change of Payment Terms was memorialized in writing as part of the parties' addendum of October 24, 1994 ("October 24 Addendum"), which was signed by both parties, A true and correct copy of the October 24 Addendum is attached as Exhibit "B", 17. Between on or about August 31, 1994 and on or about October 11, 1994, Plaintiffs requested that Appleby also construct two dormers: (i) a dormer connecting the roofs of the bedroom - 4 - addition and the original structure, and (iil a dormer connecting the roofs of the kitchen addition and the original structure, lB, Plaintiffs wanted Appleby to construct the two dormers in oeder to eliminate leaking problems that they had been experiencing prior to entering into the Contract with Appleby, 19, Appleby refused to construct the two dormers because it is not a general contractor and because of its doubts that the original structure was not structurally sound enough to hold such weight. 20. Appleby suggested that Plaintiffs find a general con- tractor to construct the dormers before having Appleby construct the patio enclosure, and offered to cancel ~he Contract in order to give Plaintiffs the opportunity to do so, 21. Insteld, the parties executed three addenda ("Addenda") to the Contract. 22. On or about October 11, 1994, the parties agreed that Appleby would install glass transoms in the gable instead of panels, A true and correct copy of the addendum of October 11, 1994, which was signed by both parties, is attached as Exhibit "C", 23. On or about October 24, 1994, the parties agreed that Appleby would construct a small dormer connecting the new patio roof to the kitchen roof ("patio dormer"), but would not tie the two existing roofs together, A true and correct copy of the October 24 Addendum is already attached as Exhibit "B", - 5 - 24, On or about November 14, 1994, the parties agreed that Appleby would install glass tranBoms on two of the walls of the patio room, A true and correc~ copy of this addendum, which was signed by both parties, is attached as Exhibit "D", 25, On or about November 7, 1994, Plaintiffs paid Appleby the down payment of $7,933,33 pursuant to the Change of Payment Terms, 26, On or about ~ovember 14, 1994, Appleby began construction of the patio room pursuant to the Contract and the Addenda, 27, Prior to commencement of work by Appleby, a vent pipe extended throuqh the original kitchen roof above the overhang ("v'ent pipe"), 28, During the course of installing the patio dormer, Appleby had to further extend the vent pipe through the patio dormer ("extended vent pipe"), 29. Appleby installed and sealed a rubber boot between the extended vent pipe and the shingles on the patio dormer, in order to prevent any infiltration of water into the patio room through the patio roof. 30. On or about November 28, 1994, Appleby completed construction of the patio room pursuant to the Contract and the Addenda. 31. On or about December 12, 1994, Plaintiffs complained to Appleby of watelo Llfiltration around the skylights and center support of the patio roof, - 6 - 32, On or about December 20, 1994, Lawrence Hilbert ("Hilbert"), an employee of Appleby, inspected the patio roof, but did not find any water infiltration, 33, The alleged water infiltration was actually condensation caused by the plants. aquariums, and heat level in the patio room, 34, On December 29. 1994, Dale Overly ("Overly"), an employee of Appleby, went to Plaintiffs' home in an attempt to collect the outstanding balance of $15.866,67 due to Appleby pursuant to the Contract and Change of Payment Terms, 35, However, Plaintiffs refused to pay the balance until they spoke with Appleby's president. 36, They claimed that the water infiltration had not been fixed, 37, They alsa maintained that the patio dormer had not been installed properly and that it was not the dormer to which they had agreed. 38. Overly contacted Warren Lewis ("Lewis"), Appleby's Corporate Office Manager, by telephone from Plaintiff's home to inform him of Plaintiffs' refusal to pay, 39, Lewis spoke with Plaintiffs by telephone and offered to grant their demand to speak with Appleby's president if they would pay the balance due to Appleby, 40. Lewis also informed plaintif fs that Appleby had installed the patio dormer according to Plaintiffs' specifications and in a manner that allowed Appleby to warranty the work, .7- 41, Lewis further explained that the warranty would become effective upon receipt of payment in full, that Appleby had provided service to Plaintiffs even though it had been under no obligation to do so under Paragraph 8 of the Contract's "Terms and Conditions" because of Plaintiffs' default of payment, and that Appleby would provide no further service until the balance was paid, 42. Plaintiffs finally agreed to pay the balance, 43, However, when Overly attempted to collect it, Plaintiffs only paid $10,866,67 of the $15,866,67 due to Appleby, 44, Within the next several days, Lewis telephoned Plaintiffs to inquire about their default of payment, 45. Plaintiffs told Lewis that their lender had placed the outstanding balance of $5,000,00 due to Appleby in an escrow account pending the resolution of their complaints, 46, Lewis then spoke with Plaintiffs' lender and was told that Plaintiffs had instructed their lender to place the money in escrow and not to pay Appleby, and that the lender could not pay Appleby without Plaintiffs' prior authorization. 47. On or about January 4, 1995, Plaintiffs again complained to Appleby of water infiltration around the skylights and center support of the patio roof, 4B, On or about January 20, 1995, Alan Thompson ("Thompson") and Overly, employees of Appleby, inspected the patio roof. - 8 - 49. Before and during their visit, the area was subjected to heavy rains, 50, Despite the rains, they found only a very minuscule infiltration of water through the channel securing Appleby's vertical soffit material ("soffit") to the original overhang, 51, This infiltration did not occur where Plaintiffs had originally complained of an infiltration, 52. Upon removing the soffit, they discovered that the water was following the ~nderside of Plaintiffs' old existing roof rafter. 53, Because of the deteriorated wood soffit, they determined that the water infiltration complained of by Plaintiffs was caused by a pre-existing infiltration that originated at the vent pipe and continued along the overhang into the patio room. 54. They also discovered that the sealant between the boot and the extended vent pipe was broken, 55, Someone other than Appleby, its agents, or employees had struck the excended vent pipe, thus breaking the seal and causing the water infiltration problems, 56, They resealed the boot, which stopped the infiltration, 57. Someone other than Appleby, its agents, or employees had also added copious amounts of sealant to various parts of the pre- existing roofs, 58. On or about March 2, 1995, Plaintiffs complained to Appleby of (i) water infiltration around the skylights, (ii) .9- possible water infiltration where the walls of the patio room meet the walls of the house, and (iii) a cracked pane of glass next to the storm door, ~9. According to Plaintiffs, the source of their water problem may have been not a leak but condensation in the patio room, 60, On or about March 29, 1995, Hilbert and Overly caulked the skylights and resealed the vent pipe, 61. On or about April 8, 1995, Hilbert and Overly sprayed the patio roof and skylights with water in order to find the source of any water infiltration, 62, There was no water infiltration around the skylights. 63. The infiltration occurred through the channel securing Appleby's soffit. to Plaintiffs' original structure, as it had occurred on or about January 20, 1995. 64, They removed the soffit and discovered that the water was following the underside of Plaintiffs' old existing roof rafters, as had been determined on or about January 20, 1995, 65, They replaced the boot and resealed the new boot, which stopped the infiltration, 66, They also replaced the cracked pane of glass. 67. Between on or about April B, 1995 and April 19, 1995, Plaintiffs complained of (i) water infiltration where the walls of the p~tio room meet the walls of the house, (ii) water infiltration . 10 . through the vent pipe, and (iii) a nail protruding up through the carpet in ~he patio room, 68. On or about April 19, 1995, Hilbert and Overly removed the soffit and the plywood at the patio dormer, 69. They determined that there was an infiltration of water through the vent pipe, 70, In order to stop the water infiltration, they pulled back the shingles, resealed the boot and surrounding shingl,. ,,', and put the patio roof back together. 71, They also hammered down the nail in the carpet, 72. On or about May 9, 1995, Plaintiffs complained to Appleby of (i) water infiltration where the walls of the patio room meet the walls of the house, (ii) a nail protruding up through the carpet, (iii) a bump in the plywood floor, and (iv) difficulty in latching the storm door. 73, On or about May 19, 1995, Hilbert repositioned the shingles on the patio dormer so that water would be diverted and have no possible route into the patio room, 74, He also readjusted the storm door, 75. On or about May 19, 1995, Appleby made a demand for payment of the outstanding balance of $5,000,00 due to Appleby. 76, Plaintiffs have refused Appleby's demand for payment and continue to hold the balance due to Appleby. - 11 - 77, There has been no communication between Plaintiffs and Appleby between on or about May 19, 1995 and on or about March 15, 1996. when Plaintiffs notified Appleby of the present action, 78. Under Paragraph 5 of the Contract, Appleby is not liable for Plaintiffs' pre-existing water infiltration problems, 79. Although Plaintiffs' alleged water infiltration was in no way related to Appleby's work under the Contract and the Addenda. Appleby has provided service in response to all ,- Plaintiffs' complaints. even though Paragraph 8 of the Cont'. oct's "Terms and Conditions" removes Appleby's obligation to do so due to Plain- tiffs' default of payment, 80. Plaintiffs have materially breached their contract with Appleby by refusing to pay the outstanding balance of. $5,000.00 due to Appleby for the construction of the patio room, thus relieving Appleby of any duties to Plaintiffs, 81. Under Paragraph 4 of the Contract's "Terms and Con":!i- tions", the unpaid balance of $5,000.00 due to Appleby is immediately due and payable, 82. By refusing to pay such balance and by instituting the instant suit, Plaintiffs are attempting to force Appleby to pay for the construction of the two dormers which Appleby had refused to construct in the first place. 83. Appleby In the event that Appleby is held liable to Plaintiffs, is entitled to a set -of f in an amount equal to the outstanding balance of $5,000,00, - 12 - 'T - f'!ltlii'.1 }iO ,)' Jt: 'J.~.'I. twl JI~~II 2U:J. \ '.I'i, r", ,,I U\:2 ..ci,,/!Hc .,I'i1::?lL j"!t.'f.\J:.J';..,i (I; "l~IJ/.:'tolJ ". I ~I."q '["" '." '00"_1" ." (",""1 ':'fIJ\',;~ ..\~ "" I '11<., I .1 j.II.., ,"'1 '1,/, "~I i' , ') 1_::':''''(lj .'" (1 I.~,',\l,_-I",'I.I'J (,'I.....' "'1"'<1. _ j\t-,l.) __.._._, "0'''. "',.l~'.. \... _ ,,__ ______ r:;'Lih(; 1_... _u,._~ O,~(,HP!I<Jtj u~""Q~M, 0\,.;,1(;;) "P(,;tl [e> .IJlhHSH ,\110 rt~!AH V;>l :'lr ;1\110 ,~.U')~IJ;H ....111. !IIi! j;')lc')I.If.(j ~"'C~Ir:.l,fl'.)rl~ APPRO >lIMA Ii SIlES "'T" '1-1 N~~0 'O~"~d'- 11~,~r~ IllI _.::-.r~. ! "'I_~IHCL~\ltL.t.L- 000' IIlf _~,_. II.. 0t':'l2.J 't~U'I)~'ri'" \i~\n~ \~I~ li~ PJ'J'...J.L 'OOF I'f"''' ~... _",I '-"'bl. \::11 'I I r;:;'\ ~IT\"",I.I.,':> I .; -.-- ..lv(~.O v... ! WolI ~ 10 ;,,<:h,Hllf: _Ll!-~_. ROOF OO~ME~ 'fIID !H~ It.~ .j....L 1,l,rJl,l,;<' '...' ~4 'tJIJ II < I f OF S"fLIQH'S' ~ fl'lfOClL):f2. _eDr.l(\. ~IJ~ ~ 't11\\.L.:,_ NolI@'O'.dUd.....l,5.ll"<1l_ AOOF OUIIIOE, J)/}2!,~,Q~, ~\)r:. \;1),1\1 AOO",NSIOE .,\~JIJirL__ fi'l,fY\l\lrJUHl. vJ,"'n'VS, IJOI'N"UI,~/wl'l\f 'I',l)' \-4J I rf /If'j.-iGl kN~li wILLS. f~T.lf\P i -~EBY M,:~~ L._.- _,:__ ~V:'/I~~fI;~,=,.s.I,:3,"1.~,~ I_~~;; '_...I CElfIA,\l OI~rIfPJlJrl'JN Arm :JoAifJ ')flll.r Al 1~r.QT":JllH.fU 1',:J~lJ(H,l r(,l,l~ f'.\t!IQ~ Q,,", I", ..".10 'u~{.lIp,j Hh... ,,, ff" i!J.llj @ I -LL i- ..!.~QlISI ~Al\ lNCL05U'1Il1 @ CLO CIRCLE ONE KNEEWALL, G,",SS Ji9 -fPh'l"'se~t:>'S&+PANEL ~, 'NINGS, GL,\SS I@ ~TED FLOOR: E , NO .ton,'j,!..... I""" , Ic.."...... )1)',., i' -",.< ~I CONTRACT SPECIFICA flOn,,; APPLES', S"S fEMS, INC, ,,,,,,,,~ , J' (p. /'))1> -/'''1 " :<1""-' ;;."., ... ".~I".,... Jl.C~..J-,-~J:~ _____._ '1 , COLeu LJI1I i't UIAAJKS, R\\Nf~W: 6/l,':iI~f)~(,(, /N':>TALL (IU<lN(..\NO'( C411.PH f~t)J" 16:<1 R,IJlI- I\oJ.JiALL ~l'(',.Ill~O fL~rl.IN~ll~'XJ~11~;iC (~U1-Jr..) 9t.(J( CANCILl.A liON: 'h. ptQdllC1t 1111,d "0'" 3" I. b. b"llh IQ ..,d" 10' .".,., Oftd ,11.",.,. rho' ,Otl 01 ,IIi. olJl"""'" (OUIt$' b. (hout,d. co"ull.d. ,,"odiU.d., dluhal9,d ," ...hql, 0' i" p,Qrl b., P\lIC~QI" ..c.,. !oJ! 'ho 'ociIlO" li,"," plo..ided h",," O' wllto ....'....n (0"1It"" b~~ :~Q10"" w..It....'n CO"'.o"'o"... ",.ft I'"l.lIC ~1"bUU, 1t1l1O''''U i, el",l,.. II.., 'he C4ImllQllly. 'tI.. i, ot",i1c4bl, to ,h, _,lI I. b, 11,.101'...,4 >1'''''''''11' C....'rOCI. w.... Ie It, 0""10"'.4 ...1$......., '. UI ,..(11,..,,101". D,IHI' II_lab ..11 b, _............ e..II....... II '"oe",'." 10# ""f ''''lfl., .....".., IN "..,w.... C.:nlt"'r, ___..__"4 Th, Co.....,." "'.,ooIlYIII'IICII" 'ft h,,.,,;tI, Itth" 11I11' "'OUIlO"o '_phll' Ih, ofltO'" ""GIll I" Ih, <J"I1I,,"1 h.,.,.., AHD IN ACCO"OANC' 'iliUM AND SU'JtCI 10 lWI I.'''' ""'0 CONDIIIONS 0'" 'I" IIIVIllSl SlOt ...hu" III. "."by ,..od. fll"" 01 .hl. 2lI'.....~.. ,'J~\ 1 ~i.C ~ '014 *lIk O,d., I !S~~~ I. ~ ~~.n. , ... ,..,.11I1.'" 10 <lltf.. . 1.__. ~/.4"C_.......' .--- 11'"J,~,~.I., ___.. '.lIe _'''-.,,'_ :/'.JU\IoI-o.-'"" ..,., ~~;'i ~~I' <:,. \_'_~ CU-_ ..- ,. , . ,e_.ll.. YOU. Ih !I y.,. may cancel Ihh han.aellon 01 any time prior 10 mIdnight a' th. thIrd bu,lne" day oft.r the date 0' thlt Iron.octlon. 1.. 'he n"tlce Q' concellatlon 0' r.clslon 'arm 'urnl.h.d .lIn 'hJt agre.ment 'or on ..planollon 0' thl, ,Ight. Th. company relGln, an equol rlghl of concellollon. Jwnn",,"1 If lhi. _4" i. 1",'""",1, "--,.,,. UfOIIllr,k.., I"... <allolily I. 21111N1111.,.,i,h" 'he MiIlI, If .1II1M ,.., 1".,.,...,1 'iet..., " 1","1 ....,. "K....'. " ..htt ul'lfil.... be,... ,I., ;..11. tf lh. COIfIPIIIIf. rh, CMlporI, ;. I"'d, lIII,hwi..li 1. iM*' lilt .If ondIltu, *,1. =lit _, litM'lnel. " r'loIl i1tSl~11ltn1 elll",,'. .. c..l.", ,.;,. lllw Drf'Nf'Ilemt. 'ltttifl. '_""*11I ...hl" .., '.... UIlII'l(t ..'c. her.., .~h.. """ 'III'" """" .1 1.1"",. I. III, ...Iun' Illt,"'I" Ill" ''''' ,It.. ...~f"'U,.......r....,...llylt.. 'rl\e """"" ....,..... _ C.""l.'telllhtll bit ..ill!..... I," ;"1101111I1" If ~ I'IflU...1t ... Incr,,," her", .. ..~I ., .,.,11 III ....'IltIffI. ....., .... II,.,. ,,,,",,,', '"' ,f 11" 1..-,........ ..........,. -W~. ,,,...,.,,,...t4 -.illl 011..., ,., '.-eel.... thlo,"..,q lie nr..c.O-' ~ r.....c.~.e"'" 'It .,..,... tipe4"oIl. ."... .,'GIlI'lllll' WII'''''. 1.. '."IM _If... 01,&1""'11 I'.'....... . _.1.,( ..,....... e...lNct ,..... WtuW.I. NOl1CI TO IUY,,: 0. "."1,,, lhl, .o"h'd b.,.,. ,.u ,..d II. 'tou 0'. ''''' 11I,.4 f. . co""lo..I, f111.~.Ir. (0" .f thl, "'.."'on' ., th. limo ,ou "," I'. If II, In..l..o. "'" In"on",.", ..1.. "nd., "01. h..... ,.... ho.o th. ,I,hl r. '" .111". ',,11 ....un. duo I" ad".,,<<. on" "nd., ,.,Ialn co"dltlon. I. .b..." . plI,f101 "bGlo .. 'h. ""Gnu (hrlJ" III 1ft, ...1IIt' ,hi, 'n,'rum." :, :IIInU",.o 10 b, f COI"U'N' D'ldil (11I11'.'. .ftt I~ "'Ie. I. .''''1 An, hold., .1 Ihlt cO.,.,II'...., ."dlt .0"'I'.d I, lulll.ct 10 .11 d.Ir.... ,.,It d.lo..... lIIIltlch tho ...itlll, co,,14 .u.,. .'.1.... Ih. ..11., ., goo'" It """c.. oltloln." 'cu,,,.... ".,,1. .., ..llh ,h. It'...."'. h.,o.'. ......." h.,."..d., b, Iho d.b,o, .".11 ..01 ..e..d 0""0",,1. JlG.d II, th. dob,., h..."ndo,. fIl'".. 1M...... ....."....,. ., ,. ,. I........,..... 'f ...~ .......... r.t,l...: , '~Il. '_"1)'1' n_..' "".. .......'......1 C,........"_, ""._..... ..... "v.--" ......;-'.. ,~,... '.I~._ ,,,. -"),....:!:ljJj. ........ .. '.........Iff...', 40) Denied. Plaintiffs never discussed specifications of the patio dormer with Defendant other than specifying that tha dormer be placed at the peak of the e~isting roof of the main house. 41) Admitted. 42) Admitted in that Plaintiffs agreed to pay the balance due upon completion of satisfactory workmanship. 43) The lender sent an inspector to the project. The lender's inspector directed the Plaintiffs and the lender to escrow $5,000.00 with lender to insure satisfactory completion of the contract. 44) After r.easonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 45) Admitted. 46) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 47) Admitted. 4B) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 49) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 50) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 51) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the avermunt and strict proof of same is demanded at time of trial. 52) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 53) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 54) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 55) Denied. By way of further response, Plaintiffs have no knowledge of any other person(s) being on the roof/addition other than employees of Defendant. 56l After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. 57l Denied. Plaintiffs have no knowledge of any person(s) other than employees of Defendant on the roof and placing any sealant on the roof. 58) Admitted. 59) Denied. Plaintiffs have two ceiling fans which circulate air in the patio room. The Plaintiffs deny that ~he water in the room is caused by condensation and aver that the water is caused by leaks in the patio room because of poor materials and workmanship in the project. 60) Admitted. 61) Admitted that Defendant's employees sprayed water. Plaintif.fs aver that water leaks were found. 62) Denied, Plaintiffs aver that water leaks were visible. 63) After reasonable investigation, the Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof of same is demanded at time of trial. ANSWERS TO COUNTERCLAIM COUNT 1 B4) The Complaint and answers in Paragraph 9 through 83 hereinabove are incorporat~d herein by reference. 85) The Piaintiffs incorporate their averments in the Complaint and their responses to the New Matter. They specifically deny th3t they are in breach of the contract. 86) The Plaintiffs aver that the project is not complete due to the poor workmanship and materials provided by Defendant and that the cost to remedy same is in excess of the balance escrowed by the lender. 87) Tne Plaintiffs deny that they have breached the contract and aver that the Defendant is in breach of the contract. The Plaintiffs are not responsible for any damages to the Defendant. 88) The Plaintiffs deny that they are in breach of the contract and that they are responsible for any of Defendant's attorney fees. ;' -\ \~g ". It) ,~: ,. ~ " u.: ; , , I f;: , (: ",-,"; r , L , f' , l '" L . . - <., . , , Ul I I 011 '0 I 01 , r.I d I "-' , ...l . . ... I Q , :l: 11.>0 01'0 III I 01 , 01 I-< X tJ , 0 , "-' ZZ lIld r.I Z ',,-, , .. ~l:)oII . ", .......... I '" ><.Cl '> ...l '" ~ 0.... ~O .. rn '.... I :li:! '" OOZ ..rn rn :.. I .... ~ 01'" .... III =(1] ., I > ""' t ~ Ope 0'<: ..... oX d , tJ I .... J: ti! :!i :z:> >t 11' ..-4 3:.f"41'.Ll IU 1"-' , tJ (J J\ " ~ r..j...l Om" '0 I .. , ~ o >< ..... ... ~ .. ~ ~ . )4..... s:: > Q....lIl d 10, ~ u "lldlll r.I .. :>>.... z >>< Qj I 01 , "" ~ '" lldr.l':Z: 1>1 ", H.....cn ~ I a. I "" ~ c 1:)1ll:Z: QO .... :):'0 Qj '1>1' "" ~ Jj 6 Ox 1>1 .... .. 01:)11. 1>1>< "" ;><Q '0' z: 'i <>0 >o",al I '" I , ..., ~ U <D a:: " :Z:oII al r.I I I '" r.I 1>1 ...l I I 0\ "" ~ ::cr.. ~:.: ...l a. I Z I 0 1-<0 ...l'O a. a. ,0, a. ...: I.... I 0 Z d < I .. I Z .... ", 10, , x, .- ~;.; .."' !'~;r-.. .~ ----- '" ~ ..... - .; ~ ~ J , 1 ~ .) ~ c"-' j .i LEONARD E. YOR'l"{, SR. dnd KAY YORTY, husband imd wl fe, PlalntlEfs (OURT 0&' COMMON PL.EAS OE' CUMBEf<LAND COUNT'(, PENNSYLVANrA crvrL ACTION - L.AW v. Ii NO. 96-1444 ClvrL. TERM ,I APPLEBY WrNDOW SYSTEMS, a division of APPLEBY SYSTEMS, INC .. i Defendant MO'l'ION FOR CONTINUANCE 1) Movant is Robert L. O'Brlen, Esqulre, attorney for the Plaintiffs in the above-captioned actions. Movant filed a Motion for a Protective Order which ls scheduled for a hearing on November 7, 1996. 2) The parties appear to have reached a settlement of the entire case and a settlement agreement has to be executed by the parties. 3) Movant, accordingly, requests that the hearing of November 7, 1996 be continued pending the anticipated resolution and termination of the litigation. Respectfully submitted, O'BRIEN, BARIC & SCHERER r~~ BY: 'AJ..JV--_ Robert L. Bried, Esquire Attorney for PlaintIffs r .0. ~ 28351 17 West South Street Carlisle, P.l\. 17013 (717) 249-6873 ,'"' '__.1 r. , < , - r ;;- - , 'I t;.;.} -if , . . , .J :., " .,_'J , J '" . . 1 :...:,