HomeMy WebLinkAbout96-01742
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is further admitted that Cornelius Rusnov received architectural
education and training and that Sandra Rusnov received education
and training in construction technology, civil engineering and
architecture. The remaining averments are denied.
4. Denied as stated. To the contrary, an improper
petition to compel arbitration was filed in this case. There were
no claims for relief asserted.
5. Admitted in part, denied in part. It is admitted
only that the agreement was prepared in form by BR&R after
negotiations with Defendants. By way of further answer, after
reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the
remaining averments contained in paragraph 5, and therefore, the
sarne are denied. proof, thereof, if relevant, is demanded at time
of trial.
6. Denied in part, admi t ted in part. The averments
contained in paragraph 6 constitute conclusions of law to which no
response is required and therefore denied. It is admitted only
that Exhibit "A" appears to be an accurate copy of the original,
which, being a writing, speaks for itself and requi:t'es no answer.
7. Admitted.
2
14. Denied. The averments contained in paragraph 14
constitute conclusions of law to which no response is required and
therefore are denied. It is further dp.nied that the construction
was materially deficient, including the alleged deficiencies stated
in the purported engineer reports or as alleged in paragraph 14 of
the petition to Open/Strike Judgment and Stay Proceedings.
15. Denied. The averments contained in paragraph 15
constitute conclusions of law ~o which no response is required and
therefore are denied.
16. Denied. The averments contained in paragraph 16
constitute conclusions of law to which no response is required and
therefore are denied.
17. Denied. The averments contained in paragraph 17
constitute conclusions of law to which no response is required and
therefore are denied.
18. Denied. The averments contained in paragraph 18
constitute conclusions of law to which no response is required and
therefore are denied. After reasonable investigation, Defendants
are without knowledge or information sufficient to form a belief as
to the truth of the averments contained in paragraph 18 and
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23. Denied. Said chargee are proper and are for work
requested by Defendants beyond the scope of the original agreement.
By way of further answer, the remaining aveI1llerlts contained in
paragraph 22 constitute conclusions of law to which no response is
required and therefore are denied.
24. Denied. The aveI1llents contained in paragraph 24
constitute conclusions of law to which no response is required and
therefore are denied. FurtheI1llore, the Construction Contract,
being a writing, speaks for itself and therefore no response is
required.
25. The Construction Contract, being a writing, speaks
for itself and therefore no response is required.
26. Denied. The aveI1llents contained in paragraph 26
constitute conclusions of law to which no response is required and
therefore are denied. By way of further answer, all "change
orders" reflect work actually requested by Defendants and perfoI1lled
by Plaintiffs, in reliance upon promise of payment in full.
27. Denied. The agreement, being a writing, speaks for
itself and no response is required. By way of further response,
said exhibits speak for themselves and therefore no response is
6
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BRlR DESIGN ASSOCIATES,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
v.
WILLIAM BRANCH AND
LE<;L1E BRANCH.
No.____
Defendant
CIVIL ACTION. LAW
.........0.....0.0.0.0.0.0.0.........0.. .
JUDGMENT BY CONFESSION
PURSlIANTTO Pa. R. Civ. P. 2962
TO THE PROTHONOTARY:
Pursuant to tha authority contained in the Warrant of Attornoy. the original or
true and correct copy of which is attached to the Complaint filad in this action. I appear for
the Defendants and confass judgament in favor of the Plaintiff and against Dafendant in the
amount of Four Hundred and Fifty Thousand Dollars ($450.000.001. plus costs,
I,
R
Lawrence B, A rams
Thomas A. Franch
One South Market Square
12th Floor
P.O. Box 1146
Harrisburg, PA 17101
(717) 233-5731
B
Attorneys for Plaintiff
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expenses. together with late charges in the amount of Two Hundred Fifty Seven Thousand
One Hundred and Thirty Six Dollars ($257.136,00), (See Summary of Outstanding Contract
Charges, a true and correct copy of which is attached hereto as Exhibit" B" and incorporated
herein),
11. The Branchs' failure to make payment in the amount of Two Hundred
Fifty Seven Thousand One Hundred and Thirty Six Dollars ($257.136.00) is a default under
the terms of the Contract.
12. On or about February 15. 1996. the Branchs further defaulted under the
terms of the Contract by stopping payment on a check previously tendered to pay the Seventh
Draw in the amount of Forty Five Thousand Dollars ($45.000.00),
13. Numerous demands for payment have been made by BR&R, and pursuant
to the Contract. the last demand was made in writing to the Branchs by BR&R in the form of
an invoice deted March 19. 1996 (a true and correct copy of which is attached hereto as
Exhibit 'C' and incorporated herein by referflnce).
14. The March 19. 1996 demand included updated late charges on amounts
owed by the Branchs. reimbursable expenses paid out by BR&R as a result of the Branchs'
failure to pay and a Fifteen Thousand Dollar ($15.000.00) early move-in fee ($5.000,00 per
month from November 24. 1995) pursuant to , 15 of the Contract which entitles BR&R to
recover "any loss sustained at reasonable profit and damages," BR&R Is entitled to fair
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116& DalIOI ASSOCIATES
COISTaUCTIOM CONTRACT
$1 &.J:i, .
THIS CONSTRUCTION CONTRACT IUd. thh \-m::.. day of O~.J , 1994,
by and b.tw..n WILLIAM BRANCH and LESLIE BRANCH, r.eiding at 231 Ridg. Driv.,
CarUIl., Penneylvanll 1'1013, hereinaft.r referr.d to .. the "Owner," party of
the fint part,
AND
BR6R DESIGN ASSOCIATES, a P.nneylvania partnerehip, having ite principal plac.
of bull1n..e at 1839 Rudy Road, Harrhburg, Dauphin County, Penneylvania,
hereinafter r.f.rred to variouely ae the "Contractor" or the "D.aign/Builder,"
party of the other part,
WITNESSETH, that the p.rti.. h.r.to, agr.., as followe:
1. Premises. 'nIe Owner hae lite control of a c.rtlin 5;t acre
tract of land eituated or d.ecribed ee followe: Lot No.9, Truffle Gl.n Road,
Truffl. Glen D.velopment, Cumberland County, Penneylvania (the "Premia..").
Owner agreee to provide Contr.ctor with a l.gal d.ecription of the Premie.e, a
copy of the lateat recorded eubdiv1eion plen of the Premise., a copy of the
Owner's C.rtificat. of Title, and. copy from the Courthou.. of all Plan and
title r.etriction. which apply to the Pr.mi....
1.1. 'nI. Work. Contractor .hall ua. it. .kill and .xp.rth. to
furni.h all the materiale, .r.ct and build a two (2) .tory rasid.ntial dw.lling
house with baeement end ..mi-detach.d 3 car garage/mudroom/gue.t quart.re
describ.d a. followa: lodge etyle wood frame dw.lling house with gr.atroom,
kitchen, pantry, dining room, piano room, fireplace, exerciae/TV room, and 3/4
bath on the fir.t floor and maeter euite with laundry end two (2) bedroom. with
baths on the e.cond level known a. "the Branch Reaidence," (th. "Work") as p.r
the initial pr..ent~tion of BR&R deeign aeeociat.e, as set forth herein and in
the oth.r Contract Documente.
2. loitia1 Contract Pric.: PaYment: Th. Owner agrees to pay to
the Contractor for the performance of the Work hereinabove set forth the eum of
Do11are ($ ) (the "Contract Pric.") (which ie
target.d to b. within the Owner'e budset of $450,000.00) in d~awe set forth in
the Sch.dule of PaYln,;nte which will be attached as Schedule "A" h.reto and which
are .ummarized ae follows:
1st Draw
Within seven (7) ca1.ndar daye of .igning this
contract
Wh.n ordering the preca.t foundation
When foundation ie comp1.te
Wh.n framing ie comp1et. and roof is papered
Wh.n roof and side .h.athing ar. complete
When rough plumbing .nd wiring are installed,
excluding fini.had low.r level, if any
$
2nd Draw
3rd Draw
4th Draw
5th Draw
6th Draw
· 8R&R d.eign ae.ociates 1994
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7th Draw
When eheetrock walla are in. taIled, excludins
finiehed lower level, if eny
Wh.n hou.e i. .ub.tantielly completed according
to thi. Contract,
8th Draw
INITIAL CONTRACT PRICE
s
2.1. Chann Ordara. Owner acknovladsa. that authorized price
adju.tment. will be made by written Change Order from time to time a. eigned by
Owner unleaa .uch price adju.tmante ere pre-authorized by Owner herein (auch aa
within the Allowanca. outlined on Schedule "D") or a. Additional Work deacribod
in Schedule "8." Owner asreea to pre fund Chanse Order reque.t. unle.. otherwiee
authorized by Contractor. Chanse Order. which ar. requested, but not pre funded
within thrae (3) buaine.. day., .hall be con.ider.d rejected by Owner and the
Contract Time .hall be extended by three (3) day. for proce.sing time for each
nonfunded Chense Order.
2.1.1. The Contractor .hell prepare Change Orden for the
Owner'. approval and execution and .hall have authority to make minor change. in
the deaign and conatruction conaiatent with the intent of th1a contract not
involving an adjuatment in the Contract Price or an exten.ion of the contract
time. The Contractor .hall promptly inform the Owner, in writing, of minor
change. in the deaign end con.truction and ahall endeavor, when practicel, to
obtain Owner'a conaent in writins in advance of any auch minor change a , which
consent ahall not be unreaaonably withheld.
2.2 Draw Schedule. The Contractor ia authorized to adju.t the
Schedule of Paymenta to coincide with the diebur.ement requirement. of Owner'e
lender. Peymente are due no later than ten (10) daya after the Owner'. receipt
of Contractor'. requeat for aach draw. Each draw .hall contain a certification
that all Work entitling the Contractor to .uch draw has been performed fully in
accordance with the Contract Documente, with excaptions. if any, noted and
accounted for. A late charge of $25.00 per clay will be paid by Owner to
Contractor for each additional clay thereafter, until paid. If payment 1a not
received within ten (l0) day. after the payment due date, the Contractor may stop
all Work and the Contract Completion Date .hall be extsnded two (2) days for each
day thet Work i. atopped awaiting payment.
2.3. Price ASsWIIDtion~ev1aion. The Contract Price ia based on
current lumber prices and aaaume. that there will be no change in the price of
lumber or any other material or eupplie. from that which WIlS quoted to Contractor
for the purpo.e of estimating thie Contract Price. The increased lumber pricee
do not includo en additional 15t for Contractor'. overhead and profit. See
Article 16.3 and Schedule "B."
3. Direct Pavment bv Lander. Owner shall direct that all paymenta
d~e the Contractor for Work Done and materiala furni.hed be made directly to the
Contractor by the Kortgagee, if any. without the joinder of the Owner aftar
Hortgagee haa made appropriate prepayment inapection. of the Work. If KortSaSee
assigna feea for inapectlons, Owner ahall pay these fees.
e BR&a deaisn a.aociate. 1994
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4. Time for COllohtion. Th. Work to b. p.rformed by the
Contr.ctor i. .nticip.ted to b'Sin within forty. five (45) day. of the Own.r'.
eccept.nc. of the Contr.ct DocUll.nta which b .xp.cted to b. on or .bout F.bru.ry
1, 1995 (w..ther .nd hunting ....on p.rmitting). Own.r will iaeue Notice of
Commencem.nt promptly .fter .uch .ccept.nc. end the Work will be fully compl.ted
no l.ter th.n one hundred .ighty (180) day. (the "Contrect Completion D.te")
.fter Notic. of COlIIDenCDment of conatruction, exc.pt .. .xtended, by Chenge Order
or otherwi.. .. provided herein. The Notice of Commencement .h.ll be eccomp.nied
by an oriSinal C.rtificate of In.ur.nce confirming Owner' a Builder' a Ri.k
coverage .a per Articl. 10 her.inafter.
5. Plan. Included in Contract. The Work ah.ll be erected in
.ccord.nc. with th. final working plan. initialled by Owner, apecific.tion.
initi.lled by Owner, the Hodific.tion., if .ny, the Gener.l Condition., if .ny,
the Speci.l Conditiona, if .ny, together with the workaheete, purchaae ordera,
contr.ctor inatructiona and color ..laction .heeta which .hall be duly executed,
dated and initialed and which, with the Schedul.a att.ched hereto ah.ll be .nd
ere m.de a part of thh Contract, .11 of which .re hereinafter called "the
Contr.ct Documenta."
6. Owner'. Worll. In the event Owner duira. to provide l.bor and
m.teri.la not included in thb Contract, Ownar may do '0 only in accordance with
the Work Schedule promulgated by Contractor in .uch a manner a. to not del.y th.
progre.. of the Work. The Owner'. Work ia .et forth in Schadule "C-3" .tt.ch.d
her..tu.
7, Additional Work. All other Work and aervices requeated by the
Owner erd not initially estim.t.d .nd .greed to or .llowed for herein by
Contr.ctor, including ch.nge. in the .cope and progreJll of the Work .hall
constitut. Addition.l Work and .h.ll be paid for by Owner.. provided in Schedule
"B-1. "
8. Excused Del.va. The Contr.ctor .hall not be li.ble far any
delay in the pro.ecution or completion of the Work ..u.ed by th. act, neglect,
default of the Owner, or aa . re.ult of ch.ngea or alter.tions in the pl.ns .nd
epecific.tion. m.de by the Owner, or by dam.ge by fire, e.rthquake or other
c.su.lty, whether ineured or not, or by w..ther conditions, or by .trike, w.lk.
outs or .ny other acta of .uppl1.re of labor or m.terials, over which the
Contractor haa no control or for which the Contractor h not reapona1ble. In any
'\lch event the time herein fixed for the completion of the Work ahall be extended
for a period equivalent to the time lo.t by ruaon of any of the cau.ea
aforeaa1d. Further, a delay in the performance of this Contract by the
Contractor 18 excu.ed when such delay b cauaed by an order of any court or other
public authority, by .ny governmental control, regul.tions, reatriction. or
allocationa or l.bor, auppliea .nd materi.la inatituted by state o. municipal or
governmental .gency Cor any rea.on whateoever.
9. Permits: Utllitie.. Cert.in permita and aaaoci.ted feea are
listed in Schedule C.2. The Owner eh.ll provide and pay for electric, w.ter,
sewer and he.ting fuel or other energy to be u.ed to construct and heat the Work
during the cour.e of constructlon.
· BR&R de.1Sn e..oclate. 1994
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9.1. Owner ehall ..cur. any n.c.eMery Town.hip or municipal
.pprov.la or .ubdividon. n.c....ry for the con.trucl:ion of the Work on the
Pramia.. .
10. In.urance: Riek of Loe.. Th. Owner .hall during the progr...
of the Work ..intain . policy of Build.r'. Ri.k in.ur.nce on the Work which
in.ur.. againet lo.a or dam.ga by fir. and all other covered ri.k. or p.ril. in
the full amount of thi. Contract plu. Own.r'. Work plu. 25' of the .wn of the
Initi.l Contr.ct Price .nd Owner'. Work which policy .h.ll include, in .ddition
to the property cover.ge, li.bility in.ur.nc. to protect the Owner and the
Contt'.ctor ATIMA again.t .ny 10...., claim., .ction. or .uit. .ither at l.w or
equlty for injury to per.on. or damag.. to prop.rty, the polici.. to cov.r all
Work incorporat.d in the dwelling, and all material. for the .ame ln or about the
premlee. whether or not .ttached or incorpor.t.d into the dwelling, .nd to be
made payable to the partie. hereto, .. th.ir int.re.t m.y appear.
The Contr.ctor i. .n independent contr.ctor with re.pect to the Work
.nd sh.ll keep .d.qu.te Workm.n'. comp.nM.tlon ineur.nc. in effect to prot.ct
Contractor .nd Owner from .11 .uch claims.
11. StiDulatlon ARainst Liena. Immedlat.ly after the signing of
this Contract, the Contractor .hall execute .nd d.liver to the Owner a proper
waiv.r of any .nd all m.chanic.' lien., which waiver may be filsd by the Own.r
or the Contr.ctor in the .ppropriat. Prothonotary'. Office a. .hown on Schedule
"E. "
12. Comnliance with Codea: Additional Costs. Th. Work will b.
designed to b. in compllance with applicabl. governmental codes, reguletion. .nd
requirement.. In the event th.t .n un.nticip.ted interpret.tion or an
.dmlnlstraUv. or legisl.tive ch.nge in .ny munlcipality or government.l
ordlnance, coda or regulation require. plumbing, electrical or other requirement.
dlfferent from or in addition to the providon. of this Contract, Contractor
shall give Owner notice of .ame and Owner ah.ll compensate Contractor for .ny
additional work and material. required by the .foresaid regulation or
municip.lity at Contr.ctor'. u.ual r.t. under Schedule "8."
13. Substltution of Materials. In the event that the Contractor
is unable to obt.in the exact materisla specified on the plans and specification.
or on the optlon. or .llowance. .tt.ched hereto through the Contractor'. ordin.ry
and u.ual cour.as of .upply, the Contr.ctor .h.ll have the right to .ub.titut.
materiala of dmil.r pattern, d.dgn and qu.lity, in the Contr.ctor'. .01.
discretion. Contractor will .nde.vor to make sur. that Owner is aw.re of .ny
.uch .ub.titution, in .dvanc., .nd if practic.l, obt.ln Owner'a written con..nt
whlch will not be unreasonably withheld. Owner .cknowledges that .ubatitut.
requests made by Owner whlch have incre.sed costs sh.ll be prefund.d by Owner .nd
m.y al.o incr.... contr.ct tim..
14. Owner's Warr.nti... Owner repr.s.nts that the Contractor'.
intended con.truction of a .ingl. family r..ldence on the Premi... conform. to
the applicabl. _____ zonlng, that the Pr.mi.e. .re .ultable for the con.truction
r.quired .nd provided under the term. of thi. Contract; that the Premi.e. .r. nut
l.v.l .nd ar. for..ted which .nt.il .ddition.l co.t. .nd .xpen.a to prepare the
· BR&R de.ign ...ociate. 1994
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dt. for con.truction th.reon: that thara h public road ace... to the Premi...,
which ..ay or .ay not allow troublafr.. and unint.rrupt.d mov.m.nt of v.hicl..,
machin.ry and .quip..nt incid.ntal to the Work; that Own.r i. the own.r of record
of the afor..aid pr.mi...: that th.r. ar. no unr.cord.d d..d.; that title i. good
and mark.tabl.; that a perp.tual right of way .xi.t. to the pr.mi...; that the
aaid pr..h.. h fr.. of any .nclIIDbranc.., U.n., ....m.nt., .tc. .xc.pt a.
cont.mplat.d by Article 3: that th.r. ar. no .ction., c.u.. of actiona, or clai..
which might at. lat.r d.t. imp.ir the titl.. The Own.r .h.ll, at hi. .xp.na.,
forthwith re.edy .ny br..ch or violation hereof which m.y .xht or arha at .ny
tim.. Tha Own.r particularly under.tand. .nd agr.a. th.t ..ch cov.nant,
repr...nt.tion, .nd warr.nty, har.in contain.d, i. ..v.rally of tha ....nc. of
th1a Contr.ct and the br.ach or viol.tion of .ny one .hall excuu p.rformanc. by
the Contr.c tor.
15. No OccuD.ncv. Contr.ctor .h.ll p.rmit Own.r to in.p.ct the
Work at r...onabl. ti... not to intarf.re with the progr... of the Work, but
Own.r .h.ll not b. .ntitl.d to key. or po.....ion of the Work pri~r to paymant
of all .w.. due und.r thb Contr.ct. IN NO EVENT SHALL THE OWNER OCCUPY OR TAKE
POSSESSION OF THE WORK BEFORE FINAL PAYMENT lIAS BEEN HADE AND/OR THE CONSENT OF
CONTRACTOR, \/HICH CONSENT SIIALL BE ENDORSED ON THIS CONTRACT. IN THE EVENT OWNER
BREACHES THIS PROVISION, HE SIIALL BE DEEMED TO HAVE ACCEPTED THE WORK "AS IS" AND
DOES THEREBY RELEASE AND WAIVE ANY ClAIMS AGAINST CONTRACTOR. A bre.ch of thh
providon by the Own.r, .hall b. condd.red a breach of the contract by the Own.r
and .hall .ntitl. the Contractor to .top Work or t.rmin.t. thi. contract .nd
recover from the Owner payment for .11 Work .x.cuted and any 10.. auatain.d .t
reasonable profit and damage..
16. Concealed Conditlon./In~re..e in Lumber Costs. In the event
that the Contractor .ncount.r. any conc.alad or unusu.l conditions during the
course of con.truction, auch a. .olid or machin. rock, quick.and, .inkhol..,
water, .pring. or hiatorical .rtif.ct. .nd tha conce.l.d or unu.ual condition
require. any oth.r work b.yond the .cop. of the utimat.d Work, .uch .. the
removal of roclt by bl..dng or drilling or by .p.chl excavation, or the
inst.ll.tion of .p.cial footing., .ub-b..., found.tion w.ll. or drain til.., or
any requir.d g.ot.chnical, .tructur.l or oth.r profea.ional con.ultant, the
Contractor .hall b. comp.naat.d .ddition.lly by Owner for auch Additional Work
and for the .at.rial. provided .t Contr.ctor'. uaual rat.s .nd charge., a copy
of which ahall b. .ttach.d aa Schadul. "B."
16.1. Upon d1acov.ry of the unu.ual condition, Contractor ah.ll
promptly giva Owner writtan notica .nd an ..tim.t. for the Additional Work.
Own.r .h.ll have the option of .gra.ing to Contr.ctor p.rforming the Addition.l
Work on the ba.h of the ..tim.t. or of t.rminating thb Contract if the ..tim.t.
would incr.... the Eatimat.d Contract Pric. by more than t.n p.rc.nt (lOt).
O1oII..r ah.ll Siv. tha Contractor Vl"itt.n notic. of hia .lection to t.rmin.t.
within t.n (10) d.ya'of Own.r'. r.ceipt of the Contractor'. notic.. If Own.r
el.ct. to t,rminat. thia Contr.ct, Ownar ahall pay to the Contractor the actual
co.ta of labor and m.teri.la p.rform.d .nd furni.h.d by Contractor to the date
of the Contractor'. notic. to the Own.r, plua.n .ddition.l fift.en p.rc.nt (15t)
a. per Sch.dule "B." Thd Contractor ahall apply any .dvancea, with the .xc.ption
of the initial payment, made by tha Own.r to auch payment due from the Owner upon
termination .. afor.eaid .nd ah.ll r.fund the exc.a., if any. Upon t.rmination
· BR&R d..isn ae.ociat.e 1994
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.. .for...id, OWn.r do.. h.r.by r..i.. .nd r.l.... Contr.ctor from .ny cl.i.
wh.t.o.ver .riling out of th1a Contract. If the OWner f.U. to reply in writing
within t.n (10) day. to the Contr.ctor'. notic., the Contr.ctor, m.y, .t it.
option, el.ct to trllt th1a Contr.ct .. t.rmin.ted .nd OWn.r .h.ll b. a.bl. for
the p.ym.nt. upon tonain.tion .. ..t forth h.r.in.bov.. Contr.ctor .h.ll giv.n
OWn.r writt.n notic. of ..id .l.ction.
16.2. In the Qv.nt th.t .dditional concret./.ton. 1a required for
deep.r foot.r., or if mora backfill i. r.quir.d for .ny r...on than i. h.r.in
..tim.t.d b.c.u.. of .It. condition., Own.r her.by .uthorh.. Contractor to
.upply .nd in.t.ll the additional concr.t./.ton. and/or addition.l b.ckfill .nd
OWn.r .gr... to comp.n..t. Contr.ctor for the co.t of .uch .ddition.l concr.t.,
stone or b.ckfill .t Contr.ctor'. UlWll rat.. .nd charg.s, a copy of which ah.ll
b. att.ch.d .. Sch.dul. "B".
16.3. In the .v.nt th.t lumber or oth.r mat.ri.l. or .upply price.
incre.se dudng the p.riod b.tw.an the time thi. contract was a.tim.tad .nd the
lumb.r or other m.t.rials .re purcha..d, Own.r agr... to pay the incr....d co.t
as per Schedule "B" .ttach.d. OWn.r m.y al.ct to lock in lumb..r pric.s by making
. nonr.fund.bl. pr..payment of 10. of the initial Contr.ct Pric. to Contr.ctor
who will u.. the prep.ym.nt to buy the lumb.r .nd thu. hold the lumb.r pric..
/..-1 OWn.r elect. to ...k. . 10. pr.payment to "lock in" the coat of
lUllb.r.
/..-1 OWn.r elect. to t.k. the ri.k of .n incr....d cost for lumb.r.
WITNESS:
17. Conf.ssion of Judlllllent. A. furth.r coll.t.ral to ..cur.
Owner'. pro.1a.. to p.y the Contr.ct Pric., upon d.fault of .ny paym.nt provid.d
for in Articl. 2 .fter the paym.nt due d.t.. the Own.r doe. hereby .uthoriz. .nd
empower .ny .ttorney of .ny Court of R.cord of Pennsylv.ni. or .ls.where to
appa.r for .nd to enter judgm.nt .g.in.t the OWn.r, .t .ny time .ft.r the data
h.reof .nd with or without. d.cl.ration, in f.vor of the Contractor, it.
.ucces.or or ...ign., in tha tot.l amount of the Contr.ct Pric. ..t forth in
Articl. 2 .bov., which judgm.nt .hall b. ..cudty for .nd m.y b. .nforc.d to
collect any .UII which may b. due and p.y.bl. by the Owner under the t.rm. of thll
Contr.ct and .ny .uppl.m.nt or ....ndm.nt th.r.to or m.y b. due .nd pay.bl.
oth.~'i.. .. dam.ge. by the OWn.r in c... of bre.ch of this Contr.ct and any
.uppl.m.nt or ....ndm.nt th.r.to by the Own.r, with int.r..t, co.t. of .uit, .
full r.l.... of .11 .rror., without .t.y or .x.cution, .nd with 5. .dd.d .. .
rell8on.ble .ttorn.y'. fUll; .nd the OWner do.. h.reby waive .nd r.lea.. .U
benefit .nd .dv.ntage of any and .U .pprah.llent, st.y, or .x.mption law. of .ny
.t.t. now in forc. or hereafter to b. p.ued. AT TilE TIME OF TilE SIGNING OF TIlIS
CONTRACT, CONTAINING TilE PROVISIONS FOR JUDGMENT BY CONFESSION TilE OWNERS, DO
IlEREBY STATE, TIlAT THEY !lAVE EARNINGS IN EXCESS OF $10,000.00 ANNUALLY.
· BR&R d..iln ...ociat.. 1994
- 6 .
......
.......
17.1. Thi. Contr.ct i. propo.ed by BR6R end accepted by Owner in
Cumberland County, Penn.ylv.nia ar.d the partie. .gree that any dbputu between
them regarding any ..pect of the Work will be fin.lly ruolved by arbitration or
court action in Cumberland County. Penn.ylvania.
17.2. Collateral DaDO. it in Lieu of Conf...i~. In lieu of grantlnl
the Article 17 pow.r of attorney to confe.. judgment abuv.. Own.r agree. that
Contractor'. attorn.y may hold the following .ecuritie., c.rtificat.. or other
collat.ral with .ppropriate executed .tock power. or endors.m.nt or power. of
attorney ill favor of Contractor in the _ount of $100.000.00 ae collateral for
Own.r'. performance hereunder. to ba delivered to .aid attorn.y at the time of
Owner'. execution hereof.
18. Correction of the Work. Contractor and Owner will monitor the
Work closely and Contra.::tor invite. Owner to participate in pre-draw in.p.ction..
Own.r agr.e. to ex.rci.e re..onable diligence in ..certaining .nd r.porting to
Contractor a. Work under this Contract progr...... any defect.. d.viation. or
deficiency in performance or .aterial in the Work. Contractor .hall promptly
correct Work which do.. not conform to the Con.truction Docum.nt.. Th. failure
of Own.r to inform Contractor, ehall be con.id.red . waiv.r of eny clai. by Owner
there.ft.r for .aid d.fect. deficiency or deviation (excepting only latent or not
.a.ily di.coverabl. d.f.ct., if any) unle.. Own.r 4gr... to the correction a.
Additionel Work, if necee.ary, in the .ole dhcretion of Contractor. Owner
agr.... thet any progre.. p.yment. made by Owner or on Owner'. behalf a. .et
forth in Article 2 of thb Contract. ehall b. deem.d in full and complete
accept.nce of the Work p.rformed by Contractor up to the time of .aid payment.
except for tho.. d.f.ct.. deficiencie. or d.vi.tion. which Own.r ha. advis.d
Contractor of in writing at the pre-draw in.pection or otherwi.. e. herein .et
forth.
19. Notice of Comaletion: Final IneD.ction. Exc.pt a. .et forth
herein.fter, the Work .hall be con.idered .ub.t.ntially compl.ted when it ha.
been con.tructed in eubstantial conformanc. with the plans and .p.cification.
her.inabove m.ntioned, or if required. wh.n a C.rtificate of Occupancy has b.en
issu.d or wh.n said Work has pa..ed final insp.ction by the municipal, borough
or township building insp.ctor. or lending institution. Upon compl.tion of
performance of this Contract, Contractor .hall within five (5) days th.r.after,
give Owner notice of said substantial compl.tion and Owner shall thereafter.
within five (5) d.ys of said notice by Contractor, finally insp.ct the premi.e.
with a repre.ent.tiv. of Contractor and advi.. Contractor. in writing of any
defects, deficiencies or d.viation. in mat.rtal or labor in Work completed alnce
the l.st in.p.ction.
Failur. of Owner to: (1) Finally insp.ct; and (2) Civ. notic. a.
aforesaid; and (3) Enumerate said daf.ct., .hall b. de.med a waiv.r of any claim
thereaft.r by Own.r of or for .aid defect, defici.ncy or d.vi.tion (.xc.pting
only latent or not e..ily di.coverable d.fect., if any) and Owner do.. h.reby
release Contractor from any clai. ari.ing ther.from which would have occurrad
since the last in.p.ction.
20. Warranty: In8Deetlon Procedur.. Contractor warrants that for
. period of one (1) y.ar from the date of the completion. Contractor will r..edy
e 6R6R d..ign es.ociate. 1994
- 7 -
......
'-
or replace or repair defective Work or defective .at.rl.ala in the Work. Th.
liability of the Contractor undar thb warranty shall b. limit.d to the
replac...nt or correction of said daf.ctiv. .et.rial or workmanship and no oth.r
claims snd d.mands whstso.v.r shall b. mad. upon or requ~red to b. allowed by the
Contractor. Exc.pted and .xclud.d from the .fore..id werranty, .hall be chips,
breaka, scratch.s or mars in any ut.rials uud in the hom., that sre not
itemized in writing to Contractor prior to po.....ion; frozen pipes, brick
discolorstion; floor squesks; caulking and grouting, ground eettlement; wsrpage
or other dafichncies resulting fro. Own.r' s fallure to control humidity; grading
problems, cracks in concr.te, drywall or plest.r, b~ick or wood; shrinksg. and
other settl.m.nt probl.ms; vsriations in stein.d wood such as cabinets, door or
trim; drywall nail pops. No warrsnty ahall apply to outald. fre.-flowing
concrete slab work. No warranty shall apply to damages caused by weath.r
condition., water .eepsge, land settle.ent, site conditions, termitea or other
insects. It is hereby agreed and undsrstood that this warranty applies only to
such items ee bear no manufacturer's warranty covaring 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 HEREBY EXPRESSLY WAIVE ANY
OTHER WAIUWlTY.
20.1. In the event th.re are eny warranted defects in workmanship or
materiels in the Work, within the aforeeeid one (1) yeer period, Own.r shall
promptly give Contractor written notice of eam. and Contrector shall be afford.d
the opportunity to remedy, replace or repair the said defective Work. Owner's
failure to give Contractor written notice as aforesaid and Owner's failure to
afford Contractor the opportunity to replace, repalr or remedy the said defective
Work or material shell constitute a waiv.r by Owner of any claim by Owner for
said defective material or workmanship.
20.2. Contractor agrees thst all manufacturer' a Warranties will pas.
through to Owner with Owner's Final Payment hereinunder.
20.3. Warrenty service sh~ll be provided forty-five (45) day. after
settlement, if required, and again one (1) year after settlement, if required,
unless there is an emergency.
20.4. Owner may, if Ownar elects, purchue a Ten (10) Year Ho.e
Owner's Warranty.
21. Entire Contract: Chanus. It h 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 &Y A FINANCING
INSTITUTION HEREAFTER SHALL &E SUPPLEMENTARY HERETO. No changes will be made in
the plans and specifications unl.ss a Change Order haa been prepared in writing,
signed by the ContU'ctor and Owner, specifically stating the detans of the
change in construction and the additional cost thereof or credit to be sllowed
against the contract price. Contrector reserv.s the right to refuse to submit
or approve change orders which would result in a substential diminution of the
Work or substanthl modification of the plans end specifications, unlaaa
otherwise sgreed to by the Contractor and Owner in writing.
· &R&R design associate. 1994
- 8 .
-
--
Schsdul. "8"
Schedule 8..1
Contr.~tor'. Fe. far Additional Work .. .Coat Plu.-
B-l.l. In the .v.nt that Additional Work must b. don. to
complete the Work, th.n Owner .greu to comp.nsat. Contractor by prefund.d Chsng.
Order for the Additional Work .s follows: Th. Cost of the Work plus a 15'
p.rcentag. p.ym.nt times the Cost of the Additional Work for Contr.ctor's
overh.ad .nd profit.
Th. Coat of the Additional Work shallm.an costs n.c....rlly incurr.d
by thft Contractor in the proper p.rformance of the Addition.l Work including the
cost estim.te of any subcontr.ctor(s), the w.g.. of construction workera directly
.mployed by the Contrsctor, w.g.a or dr.ws of Contr.ctor's partn.rs or
auperviaory .nd administrfttiv. p.rsonnel, .nd costs for benefits of all such
personn.l.
6-1.2. All w.lk.ln clout interiora as well as .11 custom work
such as custom furniture, c.bin.try, built-ins, etc. shall b. consid.red
Additional Work.
B-l.3. In .ddition, Contr.ctor
Reimburs.ble Expens. (aa defin.d in standard AlA Doc.
of 1.2 tim.s the amounts .xp.nded.
shall b. r.imburs.d for
8141 (1987)) in the amount
Schedule B-2.. Owner'. Ri.k. in the Contract Price
6-2.1. Lumb.r Pric.s. Unl..s Own.r h.. .lected to pr.pay und.r
Article 16.3, any incr.... in lUllber pricas which occur. during the p.riod
between contract .x.cution .nd p.rformanc. .h.ll b. p.id by Own.r. If the
incr.as. in lumb.r pric.., exclualv. of any other pric. chang.a, c.us.s the Tot.l
Contract Pric. to incr.... by mora than ten (10') p.rcent due to .n incr.... in
lumber pric.s, the Contr.ctor shsll promptly giv. writt.n notic. to the Own.r of
thst f.ct b.for. h. purchases the lumb.r.
6-2.2. Conc.aled Condition.. Own.r bears the risk of .dditional
cost due to conc..l.d conditions .t the sit. .s p.r Articl. 16.1 and 16.2 of the
Contrac t.
B.2. 3. Unanticinated l..e,ialative or Interoret!ve Chanita.. The
Township, DER, and Department of Labor .nd Industry approve dwelling. and
installations within th.ir proviaions on the baals of .tatutes and ordinanc.s and
local int.rpretation. of .am. which .r. subj .ct to unanticipated change.. Own.r
bears the rbk of .dditional coat for un.nticipat.d changes in int.rpret.tion and
in the ordinanc.s, st.tut.s, .tc.
s BR6R d..i<<n associ.t.s 1994
....,
-
Sch.dul. .C.
OWNER'S RESPONSIBILITIES, SEPARATE COSTS, OWNE~'S WORK
Thi. Sch.dule .C. i. int.nded to inform and outline for Own.r. who
may be undert.king a realdential bullding project for the firet time their
r..pon.ibilitie. with re.p.ct to the Proj.ct in .ddition to paying the Contr.ct
Pric.. Further,.o thet they m.y .nticipat. cert.in f.e. and co.ta which .re not
included in the Contrect Pric., or routin.ly identifi.d in the Con.truction
Contr.ct, these .re esti.at.d in check lilt fa.hion. Finally, th.re b .
sub.ch.dul. .etting forth ..ch p.rty'. exp.ctation with resp.ct to Owner'. Work.
Sch.dul. C.l . Owner'. R88Donaibilltl..
C-l.l. Prior to co_enc.ment of the Work, the Owner .han
furnish. 1.1.1 description and. certifi.d lend .urvey of the Premi..., giving,
as .pplicabl., gredes .nd lin.. of .tr..ts, .lleys, pavem.nt. and .djoining
prop.rty; rights-of-way, r..trictiona, eas.m.nt., encro.chm.nt., zoning, d..d
re.trictiona, el.v.tion. and contour. of the sit.; loc.tion., dimensions and
complete d.ta p.rtaining to .xi.ting bullding., other improvement. .nd tre..; and
full inform.tion conc.rning .vailabl. ..rv.. and utility lines, both public and
privat., .bov. and below grad., including inverts and d.pths.
C-l.2. Th. Own.r .hall furnish .ervices of geotechnical
engine.r. and oth.r con.ult.nt. when .uch ..rvic.s .re deemed nec....ry by .ny
gov.rning .gency that has the .uthority to do .0 and/or the Contr.ctor.
aeotechnic.l .ngin.ere or other consult.nt. .hall be .elected by mutual
.greem.nt. Such s.rvices shall includ., aa r.quir.d, .pplicabl. t..t boring.,
test pit., .oll bearing v.lue., percol.tion te.te, air .nd w.t.r pollution
teats,. nd other nec...ary oper.tion. for det.rmining .ub30ll, air .nd wat.r
conditions, with r.ports and appropri.t. profe.sional r.colDIDendation..
C-l.3. Th. servic.., informetion, .urv.ys and report. r.quir.d
by Article 1.1 .nd 1.2 .hall b. furnbh.d .t the Own.r's expen.., .nd the
Contractor .h.ll be entitl.d to r.ly upon th.ir accur.cy .nd compl.t.n..s.
C.l.4. If the Owner ob.erve. or otherwi.e becom.. .w.r. oi .ny
fault or d.f.ct in the Work, the Own.r .h.ll give prompt oral notic. .nd, if
nec.se.ry, writt.n notice thereof to the Contr.ctor.
COl. 5. Th. Own.r .hall furnbh required information .nd ..rvic.s
snd shell r.nd.r decbions with re..onabl. promptness to svoid del.y in the
orderly progre.. of the Contractor'. .ervic...
C-l.6. Th. Own.r .h.ll cOlDIDunic.te with other contr.ctors only
through the Contr.ctor.
Deposit for Schedule C Initi.l Owner Expens..
E.tim.t.d Total Due .t Sign1na
+15t -
+ 15t -
Exp.nse. due within t.n day. of invoic. +15t _
· BR&R d..ian ...ociat.. 1994
.
'-'"
-
Sehadul. C.2 . I.tim.tad P.rml~ ~...
C-2.1. Permic.. Th. Owner .grees to pay the co.t. and fe..
n.c....ry to bring the .ew.r, nstural g.., wat.r and el.ctric .nd other utlliti..
to within five (5) feet of the dwelling hou.e. Th. Own.r heraby .uthoriz.d and
appoint. Contr.ctor to obtain .t the Own.r'. .xp.n.e, all n.c.s..ry p.rmit.,
in.pections, ..al. or .uthorizations from .11 municipel bur..us and d.partment.,
priv.t. flru or utilitie. which may be required for the con.truction or
occup.ncy of .aid dw.lling hou.., .nd to that end, authorizes the Contractor to
sign their naIII.. to .ny applic.tions for .uch permit., inspection., ..ale or
.uthor lzations .
C.2.2. Th. OWner .hall cooperate with the Contr.ctor in
identifying r.quired perm1t., 11c.ns.. .nd in.p.ctions, and .h.ll taka
.ppropriat. action with r.a.onabl. promptn....
The following permit f... ar. norm.lly expacted to b. p.id by Own.r
in addition to the Contract Price. Contr.ctor will normally b. .bl. to provide
on. day'. advance notic. to the Own.r of the nec..sity for the payment.
1. Recording F.. - W.iv.r of Liens
2. Sew.r Modul. Application F.e
3. Storm Wat.r Application F.e
4. Building P.rmit Applic.tion
5. Exterior F.e. to S.wer .nd Water Authority
6. Extenaion Fe.. to Ca. Company & PP6L
7. Electric.l In.pection
8. Plumbing In.p.ction
9. Occupancy P.rmit
The publhhed schedule of f... for Silver Spring Town.hip i. att.ch.d
.. part of Schedule C-2, Pas. ___'
Sehadule C.3 . Own.I.". Work
C-3.1.
Th. Owner ha. agr.ed to do the following Work:
C.3.2. Contr.ctor will provide a .chedule to Owner for Owner'.
Work. In the ev.nt Owner does not .ch.dul. Own.r Work at the proper time or do..
not promptly complete the Work h. i. obliged to do hereund.r, Contr.ctor may
complete .... .nd Owner .hall pay Contractor'. cost plus 15. for ov.rhead,
.uperv1aion, work and ..t.riale from Sch.dule "B." Should the Owner, in the .ola
opinion of Contractor, interfere w1th the con.truction or fail to make echedul.d
p.ym.nt. wh.n r.qua.ted, Contr.ctor ..y con.id.r .uch failure a bre.ch of thi.
Contract .nd th.t bre.ch wlll excus. Contractor from further perform.nc. .nd
Contr.ctor .h.ll receiv. all .um. due h.r.under, including lost profit.
C-3.3. Unfinish.d Soacets). Own.r .gree. that the following
space(s) will r.main unfinish.d by the Contractor .nd are the re.ponsibility of
the Owner to finish if they so choo..: b...m.nt. .ttic
· BR&a d..ign a..oci.te. 1994
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8 R & R --SWIgo..mwis\W
William & Leslie Branch
4 Tru(fle Glen Road
Mechanicsburg, PA 17055
1839 RUDY ROAD' HBG" PR 17104
March 19, 1996
BRANCH RESIDENCE
Summary of outstanding contract charges as of March 19, 1996:
(non-payment of contract fees and late charges)
Amount Billed
Amount as of 3/19/96
Billed as Late Charges including all
lnY~ DescriDtion pf 2-9-96 2/10/96-3/19/96 fees & late charlles
7th Draw Contract Draw $ 45,000.00 Per Inv. #31 $ 45,000.00
8th Draw Contract Draw 41,440.00 Per Inv. #31 41,440.00
Jnv. 27 C.O.I-24 88.463.14 Per Inv. #36.35,34 88,463.14
Jnv. 28 C.O. 25-44 30.111.82 Per Inv. #37 30,111.82
Jnv. 29 Postage and printing 295.85 295.85
Jnv. 30 Fuel & Eng. 2.823.16 2,823.16
Jnv. 31 Late charge on draws 3.875.00 3,300.00 7,175.00
Jnv. 32 Bridge Loan 927.31 927.31
Jnv. 33 Penalties, supplies
& sub. 1,209.91 1,209.91
Jnv. 34 Late charges C.O.
1,3& 4 15,090.00 2,475.00 17,565.00
Jnv. 35 Late charges C.O.
5-~, 11, 12 27,450.00 4,950.00 32,400.00
Jnv. 36 Late charges C.O.
2,9,10, 13-24 22.125.00 12,375.00 34,500.00
Inv.37 Late charges C.O.
25:43 3,325.00 15,675.00 19,000.00
Jnv. 38 Early move-in 15,000.00 15,000.00
Jnv. 39 Anomey Fee 16,875.77 16,875.77
Article 17 Article 17 Article 17
$314,011.96 $38,775.00 $352,786.96
C.O.44 Extra Site Work 1.604.40
Total Due ~~~4,39q~, +
NOTE: As per Contract, any payments late of due dates will be assessed further non-
payment charges.
c:: \aurtnI\branctl\a'UM\&r'Y. )1.4
717 '232 '3748
.".... '
,
is further admitted that Cornelius Rusnov received architectural
education and training and that Sandra Rusnov received education
and txaining in construction technology, civil engineering and
architecture. The remaining averments are denied.
4. Denied as stated. To the contrary, an improper
petition to compel arbitration was filed in this case. There were
no claims for relief asserted.
5. Admitted in part, denied in part. It is admitted
only that the agreement was prepared in form by BR&R after
negotiations with Defendants. By way of further answer, after
rea.onable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the
remaining averments contained in paragraph 5, and therefore, the
same are denied. Proof, thereof, if relevant, is demanded at time
of trial.
6. Denied in part, admitted in part. The averments
contained in paragraph 6 constitute conclusions of law to which no
response is required and therefore denied. It is admitted only
that Exhibit "A" appears to be an accurate copy of the original,
which, being a writing, speaks for itself and requires no answer,
7. Admitted.
2
23. Denied. Said charges are proper and are for work
requested by Dehndants beyond the scope of the original agreement,
By way of further answer, the remaining averments contained in
paragraph 22 constitute conclusions of law to which no response is
required and therefore are denied.
24. Denied. The averments contained in paragraph 24
constitute conclusions of law to which no response is required and
therefore are denied. Furthermore, the Construction Contract,
being a writing, speaks for itself and therefore no response is
required,
25. The Construction Contract, being a writing, speaks
for itself and therefore no response is required.
26. Denied. The averments contained in paragraph 26
constitute conclusions of law to which no response is required and
therefore are denied. By way of further answer, all "change
orders" reflect work actually requested by Defendants and performed
by Plaintiffs, in reliance upon promise of payment in full.
27. Denied. The agreement, being a writing, speaks for
itself and no response is required. By way of further response,
said exhibits speak for themselves and therefore no response is
6
..
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BR'R DESIGN ASSOCIATES
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 96-1742 CIVIL TERM
WILLIAM BRANCH AND
LESLIE BRANCH
Defendants.
CIVIL ACTION - LAW
..PLY
AND NOW, come the Defendants/Petitioners, William Branch and
Leslie Branch, by their attorneys, Fowler, Addam/il, Shughart ,
Rundle and make the following reply to the Plaintiff/Respondent's
answer with new matter:
29. No answer is required.
30. The conclusion of law is denied,
31. The conclusion of law is denied.
32. The conclusion of law is denied. The entry of judgment
by confession by the plaintiff was effected in bad faith, The
remaining allegations are denied.
WHEREFORE, the defendants/petitioners demand that the judgment
improvidently entered by plaintiff be opened or stricken.
FOWLER, ADDAMS, SHUGHART & RUNDLE
By:
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Supreme Court 1.0. No. 06265
28 South Pitt st., P.O. Box 208
Carlisle, PA 17013
(717) 249-8)00
Attorneys for Defendants/Petitioners
Of Counsel:
Edward C. Toole, Jr.
Supreme Court 1.0. No, 04855
Clark, Ladner, Fortenbaugh , Young
One Commerce Square
2005 Market Street
Philadelphia, PA 19103
Lawrence B. Abrams, Esquire
Attorney I.D. No. 18028
Thomas A. French, Esquire
Attorney I.D. No. 39305
Thomas C. Zipfel, Esquire
Attorney I.D. No. 76964
Rhoads & Sinon
One South Market Square, Twelfth Floor
P. O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Plaintiff
BR&R DESIGN ASSOCIATES,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-1742 Civil Term
v.
WILLIAM BRANCH and
LESLIE BRANCH, his wife
CIVIL ACTION - LAW
Defendants
NOTICE OF SERVICE
TO THE PROTHONOTARY
Kindly have notice that on the 24th day of May, 1996, a
Response to Defendants' First Request for Production of Documents
was served by United States mail, first class, postage prepaid upon
John B. Fowler, III, Esquire, Fowler, Addams, Shughart & Rundle, 28
South Pitt Street, P.O. Box 208, Carlisle, PA 17013.
RHOADS & SINON
/104465
.
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Lawrence B. Abrams
Thomas A. French
Thomas C. Zipfel
One South Market Square
Twelfth Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Plaintiff
By:
_.- -..-.
BR&R DESIGN ASSOCIATES
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 96-1742 CIVIL TERM
WILLIAM BRANCH AND
LESLIE BRANCH
Defendants,
CIVIL ACTION - LAW
..TITIOM TO O..M/ITaIX. JUDGK.MT AND ITAY .aOC..DIMG8
Defendants/Petitioners, William Branch and Leslie Branch,
through their counsel, Fowler, Addams, Shughart & Rundle and Clark,
Ladner, Fortenbaugh & Young, hereby petition this Court to Open
and/or strike Judgment by Confession entered against them, and aver
the fOllowing in support thereof:
1. William and Leslie Branch, named defendants, reside at
4 Truffle Glen Road, Mechanicsburg, Pennsylvania 17055,
2. BR&R Design Associates is a Pennsylvania partnership,
maintaining its principal place of business at 1839 Rudy Road,
HarriSburg, pennsylvania 17104.
3. The principals of BR&R are Cornelius Rusnov, an architect
by education and training, and Sandra Rusnov, a civil engineer and
interior designer by education and training.
4. On or about March 4, 1996, BR&R was named as a party
defendant in an action entitled: Branch, !It al v, BR&R Desian
Associates, No. 96-1182, civil Term, Court of Common Pleas for the
County of Cumberland. This action was predicated upon the failure
of BR&R to fulfill its contractual Obligations to design and
construct a home,
The areas of structural and other material
deficiencies are set forth in greater detail below.
5. The Construction Contract (appended as Exhibit A to the
Complaint tor Confession of Judqment), which forms the sUbject
matter ot the dispute, was prtipared by BR'R. An important
inducement and consideration for the Branches to accept and enter
into the Construction Contract was tho opportunity to utilize the
architectural, engineering and interior design disciplines, skills
and expertise of the two principals of BR'R to design and construct
a home.
6, The Construction Contract contains a clause providing for
arbitration as a means for dispute resolution, By letter dated
February 26, 1996, directed to its counsel, BR'R was formally
notified of the need to remediate, absent which arbitration would
be pursued. A copy of the notification letter appears a.
Exhibit A.
7, Accordingly, on or about March 18, 1996, a Petition to
Compel Arbitration was filed at No. 96-1182 civil Term. The
PetJ.tion appears as Exhibit B.
8. Thereafter, the Honorable J. Wesley Oler, Jr. entered a
Rule upon respondent to show cause why it should not be compelled
to arbitrate the dispute between the parties, A copy of the Rule,
dated March 19, 1996 is attached as Exhibit C,
9. Instead of responding to the merits of the Petition to
Compel Arbitration, BR'R filed preliminary objections, essentially
raising specious defenses,
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10. The fact notwithstanding that a substantial dispute
regarding performance of the Construction Contract by BR'R is
extant, on or about April 1, 1996, BR'R filed a Complaint For
Confession of Judgment at the above captioned number and term.
11, The alleged basis for the judgment by confession is the
failure of the Branches to fund "change order" payments, as well as
other charges, many of which have been unilaterally asserted,
ostensibly arising urlder the Construction Contract.
12. The confession of judgment provision (Which appears at
Section 17 of the Construction contract) specifically provides for
confession only where entered to collect any sum which may be due
and payable, as well as for the satisfaction of damages in case of
breach of contract by the owner.
13. The Complaint fails to set forth the fact that, during
the course of construction of this project, BR'R substantially
breached the contract at issue by failing to perform in accordance
with ita terms.
14. As eet forth in the Petition to Compel Arbitration, which
was received by BR'R several weeks prior to the institution of this
action, BR'R's performance in the design and construction of the
dwelling has been materially deficient in several respects.
Subetantial structural problems have been uncovered by consulting
engineers, including the lack of structural integrity in several
locations. BR'R has received actual knowledge of these structural
deficiencies, in the form of reports prepared by Roger J. Olson,
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professional Engineer, both of which have been forwarded to BR'R,
in an effort to obtain voluntary remediation of the.e .ub.tantial
structural deficiencies, The reports, dated January 22, 1996 and
February 19, 1996, are attached as Exhibit 0, Thus, BR'R received
actual notice liS early as three months ago that substantial
structural deticiencieo in the construction and design were extant.
This fact notwithstanding, BR'R has attempted to avoid alternative
dispute resolution via arbitration, and instead has proceeded by
confessing judgment. The structural deficiencies, as set forth in
the Olson reports, can be summarized as follows:
a. out-of-plum wall, living room which can be visually
observed by almost 1 inch in 6 feet,
b. Floor sag, dining room and foyer, with an attempt
by BR'R to use 2 x 4 shims at the bottoms of the
floor joists in order to attempt to level the
ceiling, rather than add an additional girder and
supporting columns.
c. Master bedroom floor sag and deflection, To
correct this deficiency, an additional support
girder needs to be installed.
d. In addition, the professional engineer observed
that BR'R attempted to use a patch "that didn't
work" in correcting the noticeable floor sag where
deflection is pronounced.
e, Floor sag and slope under south section of house.
Again, caused by the lack of satisfactory
structural framing plan or a complete lack af any
framing plan.
f, It was further observed that BR&R installed girders
which did not run the full depth of the crawl space
and are supported "temporarily" on steel adjustable
jack posts. This construction was implemented by
BR'R in order to avoid the cost of two additional
girders extending the entire depth of the crawl
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space. It was further noted that the original
girder i. shilll1lled up by a wood block, which b
characterized as a poor building practice, in lieu
of a proper concrete brick or steel shim,
other examples or structural deficiencies appear in
the Olson report datod January 22, 1996, including
lack of proper fAstening of jack posts to wood
girders; additional floor. not being level;
inadequate heating system; improperly installed
exterior siding.
15. The fact notwithstanding that actual notice was received
g.
regarding the existence of substantial structural deficiencies,
BR'R has refused to remediate, in violation of its representations
and warranties under the contract, as well as mandated by the law
of this COlll1llonwealth regarding new construction,
16. The contractual undertaking to remediate construction
deficiencies which BR'R is violating provides as follows:
20. Warrantv: InsDection Procedure,
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. Thus, having received actual knowledge of the existence
of substantial and material defects in design and construction by
BR'R, payment has been properly withheld, pending resolution.
18. In accordance with section 4 ot the Construction
Contract, completion was required by August, 1995.
On or about
December 17, 1994, the Branches entered into an agreement of .ale
for their former home which provided for settlement on July 29,
1995. Prior to entering into said agreement, the Branches obtained
-5-
a.surance. from BR&R that their new home would be completed by
August 1, 1~95. To date, some nine month. later, construction i.
by no mean. complete. These facts notwithstanding, BR&R has
refused to recognize its relJponsibilities for remediation and
completion in material breach of its obligations under the
Construction Contract.
19. Likewi.e and in accordance with Section 4 of the
Construction Contract, construction was to begin by February, 1995.
At that time and by its own admissions, BR&R was behind schedule
and overbooked with construction projects, Construction did not
begin until early April, 1995, and shortly thereafter, Sandra
Rusnov ceased to participate in lending her skills and expertise to
the design and construction of the home in material breach of
BR&R's contractual obligations.
20. with the consent of BR&R and on November 22, 1995, the
day before Thanksgiving, the Branches moved in and took possession
of the home prior to its completion. A copy of BR&R's consent
endorsed on Section 15 of the Construction Contract is attached as
Exhibit E,
21. In addition to the serious structural deficiencies as set
forth above, workmanship has been deficient resulting in the
enumeration initially of over 100 separate and distinct
deficiencies, all of which were reported to BR&R and most of which
it refuse. to correct, Lists of deficiencies were furnished to
BR&R on at least two separate occasions, the most recent of which
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on February 8, 1996, is appended aD Exhibit F.
22. Again, rather than fulfill its contractual obligations to
complete the home in a good and workmanlike manner, BR'R has
entered judgment by confession, in bad faith.
23. Apparently cognizant of the fact that construction and
design have been deficient, reSUlting in exceasive act'.lal or
anticipated remediation expenses, BR'R has fabricated substantial
and unsupported "surcharges", even though the items represented
thereby are properly included in tho "not to exceed" contract price
os originally negotiated.
24. Further, inflated and truncated charges have been
aaserted by BR'R, ostensibly for "change orders" and surcharges as
aforeaaid. In this regard, the Construction Contract provides a
specific and orderly method of processing change orders:
2.1 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... .
25. In addition, the Contract provides:
2,1,1 The Contractor shall prepare
Change Orders f or the Owner's
approval and execution""
26. The purpose of both provisions is to assure that each and
every contemplated change is authorized, understood by both parties
and, of course, with concurronce on pricing,
These expre.a
provisions notwithstanding, BR'R failed to prepare timely change
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ordera ea\d to obtain owner'a prior written approval. matead, BR&R
prepared an array of truncated, after-the-fact "chanqe orders"
which were submitted to the Branches in bulk on December 9, 1995,
well atter the underlyinq controversy had surfaced, all in direct
violation ot BR&R'a undertakinqa under the Construction Contract.
27. The Conatruction Contract provided tor a periodic payment
achedule predicated on achievement ot levels ot completion. Each
"draw" is depicted at Schedule A to the Construction Contract and
entitled "Residential Dwelling Drawing Schedule". At the time that
the substantial deticiencies in design and construction were
discerned, six ot the ..ight draws had in fact been paid by the
Branche.. In an eftort to seek amicable resolution in good faith,
the seventh draw was in tact tendered to Lawrence B. Abrams, III,
Esq., counsel tor BR&R, for safekeeping and delivery to BR&R on
condition that it complete the contract and remedy defective work
within a reasonable time and without delay, Indeed, by letter.
dated February 5 and 8, 1996, Attorney Abrams was notified ot the
conditions under which he was authorized to release draw #7 in the
sum of $45,000 to BR&R and of the provision for the Branches'
payment ot draw #0 as soon as the work is substantially completed,
Copies of the February 5 and 8 letters are appended as Exhibit G.
Thus, the tact that payment of the remaining draws was provided
for, BR&R nonetheless chose to seek judgment by contession in
tlagrant disregard of its obligation to complete the contract and
in bad taith,
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EXHIBIT A
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(c) Workmanship has been materially deficient, resulting
in over 100 separate and distinct deficiencies reported to
respondent requiring remediation;
(d) Surchargcs have been asserted by respondent for
items properly included in the "not to exceed" contract price;
(e) Change orders wcre 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
obligations. 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 ~o arbitrate this dispute.
WHEREFORE, Petitioners request that this Court enter an order:
(a) Directing that respondent proceed with 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;
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ROGER .I. OLSON & ASSOCIATES
PROFESSIONAL ENGINEERS' BUILDING CONSULTANTS
450 PAWNEE DRIVE
MECHANICSBURG, PA 17055
TEL (717) 763.4001 . FAX (717) 763-0877
January 22, 1996
Mr. and Ms, William J, Branch
4 Trullle Glen Road
Mechanlcsburg, PA 17055
Reference: Construcllon Problems
New Single Family Residence
4 Trullle Glen Road
Mechanlcsburg. PA 17055
Dear Mr, and Ms, Branch:
At your request. I visited your home this morning, Purpose of my visit was to Inspect
and discuss various construction problems and concerns you have with your
residence, You have O,ccupled the home since the latter part of November. 1995, The
house today Is habitable although there are significant construction deficiencies and
considerable uncompleted work, You have brought me Into the project for my
construction and engineering expertise,
This morning you verbally described how the entire project came about, the timing,
selecllon of contractor, and present status. You showed me some photographs of the
house under construction, You described some of the construction problems, Ilooked
through a reduced set of contract drawings although I did not see a copy of the
specifications, We toured various rooms of the house and basement. I did not see the
attic or enter the crawl space, You Introduced me to John Shunk, a building contractor
from the Carlisle area who has worked for you in the past; the two of us looked at
some of the construction problems and discL;ssed possible solutions,
You furnished me a copy of your letter dated January 18, 1996 to the builder/designer,
Sandra and Neal Rusnov which summarizes the project. problems, and unresolved
items to date. You also furnished me an itemized punch list (undated) by area which
totals 144 items.
It would be superfluous for me to reiterate the various items on your punch lisl. You
showed me enough items in our Inspection this morning to confirm that the
builder/designer did In fact make some substantial errors in construction of the house,
And, there is considerable work remaining, I, therefore, affirm your punchlist.
-'
Mr. and Ms, William J, Branch Januarv 22. 1996
Paae 2
We discussed the lollowlng deliclencles at length this morning:
STRUCTURE:
Because 01 physical conllguratlon, structurallramlng of this house Is
complicated, Stick Iramlng. post and beam Iramlng and manufactured structural
components Including engineered rool trusses are used, The contract drawings
should contain structural drawings showing the size, location, and dimensions of all
structural framlng,..1 did not see these drawings In the set 01 drawings you showed me,
In order to more accurately diagnose structural problems, I recommend you request
these drawings and the calculations to back them up from the builder/designer,
Based upon visual observations, the construction photos. and checks with a
level. it appeals tllat lolt and second floor iOddinys alt! bearing down tnrough a wall
section in the dining room, This wall section loading lalls In the dining room floor, not
over a supporting girder (located in the basement), Deflections have occurred, To
correct this deficiency, John Shunk suggested Installing another girder in the
basement (through the exercise room running lengthwise, north-south) which would
carry the slgnillcant loading on this area of the house down onto the basement floor I
concur with this suggestion, Cutting out the concrete floor where the center column
bears and constructing a concrete looting to support this girder would be desirable,
I also viewed the sagging beams and beam supports in the crawl space under
the south end of the house, Adjustable steel jaCk posts have been Installed at various
locations In an effort to correct this problem, Uneven flooring above confirms the
problem, The adjustable jack posts bear on concrete blocks which are merely laid on
the crushed stone crawl space floor, I recommend that suitable poured concrete
footers be Installed under all adjustable jack posts in this area; recommended size 12"
(depth) x 24" x 24", If there is a possibility crawl space temperatures wllllall below
freezing, the lootlngs must be installed below frost line,
I noted that the adjustable jack posts used in the basement are not fastened to
the wood girders, Good building practice calls for fastening 01 the posts at both tops
and bottoms to structure and looting,
There is a problem 01 floors not being level in the master bedroom and your
daughter's bedroom, The structural prcblems herein discussed play Into this
condition, During our inspection we also noted a significant flex in the master
bedroom floor, I recommend that structural framing drawings lor the house be
reviewed to come up with a solutloln to this problem,
HEATING SYSTEM:
It is my understanding two propane tired warm air furnaces heat the building
zoned into four zones, The furnaces are in attic spaces Warm air is distributed to the
various living spaces through ceiling diffusers You have lived through two cold
weather months in the house and find that heat distribution is unsatisfactory With
bedrooms being excessively tlot and lirst floor too cold You also have disconnected
Mr. and Ms, WIlliam J, Branch Januarv 22. 1996
PaQe 3
HEATING SYSTEM. CONTINUED~
the humidifiers after malfunctions and leakage Into the bedrooms below.
Again, I suggest that you request construction drawings detailing the system
Installed and heat loss design and distribution calculations from the builder/designer
(and his HVAC subcontractor). With this Information It would be possible to accurately
"trouble-shoot" the system, For example, I questioned how the zoning operates....does
an automatic damper shut down the air flow to one of the zones with the furnace
continuing to operate at full capacity? With complete drawings and specifications, this
Information would be available
A simplistic answer to the heating problem is installation of an additional
furnace in the basement ducted to serve the entire first floor. Before jumping into this
solution I recommend taking a closer leok at the distribution. Perhaps manual
dampers could be Installed In the duct runs which would have to be changed going
from heating 10 ('oollng modes Another possible solution would be installation of
electric resistance healing at selected areas in the first floor, The bottom line here is to
place the burden of correcting an unsatisfactory heating system on the back of the
builder/designer, Based upon problems you are having with the heating system I
question if similar problems will come to light when the cooling system is operational.
EXTERIOR SIDING:
I Inspected siding along the rear exposure of the house, A combination of cedar
shakes and cedar bevel siding is used
The trim detail used above the windows allows moisture to lay on the header
trim strip rotting the trim strip and possibly penetrating the window opening, I
recommend reconflgurlng the trim and siding so that moisture Is shed rather than
laying on the wood trim and entering the window penetration,
I would be happy to assist yuu ill lurlll!;lr Jtl$lJlving dlsput..s In this project through
either on-site meetings or expert witness work If necessary, Enclosed is my curriculum
vitae,
Sincerely,
\. LA- vu 0\- ^'-~"'-
Roger J, Olson. P. E
Pennsylvania Engineering Certification #012791-E
C'..opy: John Fowler III w/copy of curriculum vitae
Mr. and Ms, William J, Branch Februarv 19. 1996
Paae 2
Observations, Continued:
2.. Floor Saa Dinlna Room al'1d Fover:
girder in the area of the concentrated load, The builder also apparently added
plywood to the sides of two of the original manufactured floor joists in this section of
the floor system, Evidently this was the builder's attempt to build a "box beam", We
also noted the builder Installed 2 x 4 shims at the bottoms of the floor joists in order to
level the gym ceiling, However, as viewed In the first floor, the floor stili Is not level In
the dining room area and there Is considerable flex In the floor system,
To solve this structural problem it Is our recommendation an additional girder
and supporting columns be placed lengthwise In the basement gym under the
concentrated loading from the floors above, The support girder should be Installed
directly against the floor joists necessitating the removal of drywall and 2 x 4 shims,
The support columns would be steel adjustable jack posts placed on adequate
footings,
a. Master Bedroom Floor Saa and Deflection:
The builder has admitted to not taking adequate measures to protect the OSB
subflooring from rainfall during construction, I understand the builder "corrected" the
swelling of the sLlbflooring in this room by Installing an additional layer of subfloorlng
and using a leveler along the south wall, In actual fact, the builder's correction was a
patch that didn't work, The floor has noticeable sag, Deflection is pronounced,
To correct this problem It is our recommendation that an additional girder be
Installed In the room below (kitchen) running approximate mid span of the floor joists,
north-south, Again, steel adjustable posts would be used to support the glrcier, It
would be Important to obtain satisfactory bearing of the jack posts on structure below,
The girder should again be installed against the bottom flanges of the floor joists
Girder and support columns can be boxed in with drywalllinlshes to cause less of a
negative impact to the kitchen space,
1.. Floor Saa and SloDe Under South Section of House:
The builder, either due to lack of a satisfactory structural framing ricin or
complete lack of any framing plan placed two additional girders in this lirst floor system
as viewed In the crawl space, These girders do not run the full depth of the crawl
space. They are supported temporarily on steel adjustable jack posts sitting on
concrete "cookies", I understand the builder added this structural framing because
floors were sagging and deflecting, There still is floor sag and deflection in this area of
the building.
To correct these problems we recommend that the two added girders be
extended to the entire depth of the crawl space We also recommend that satisfactory
concrete foundation pads be placed under all adjustable jack posts
I noted In crawling into the crawl space that the original girder IS shimmed up by
a wood block at the south concrete foundation wall.. this is poor building practice A
concrete brick or steel shim should be used
Mr, and Ms, William J, Branch Februarv 19. 1996
Pace 3
Observations, Continued:
~ Hie Rafter In Center Roof Structure:
You expressed concern about the support of the hip rafter running from the
center roof structure to a location over the laundry room, The end of the rafter falls In a
location over a pocket door, Because of Interior finishes, It IS Impossible to see how
the builder framed the support of the girder,
Conch,lslons:
1, It Is abundantly r.lear the builder failed to satisfactorily size and Install structural
members In various parts of this building.
2, I question if the builder ever developed a structural framing plan for the entire
building. Due to the size and complexity of the structure, this framing plan would be a
"must",
3. There are examples In the building construction indicating that the builder failed
to follow good building practice,
4. II you accept the building "as Is" with Its various structural problems, deficiencies
and lack of structural Integrity you in essence are accepting damaged goods. The
value of the building has been reduced because of construction procedures and
techniques used by the builder,
Recommendations:
1, Corrective measures for the structural problems described herein should be
undertaken,
2, Before any corrective work Is done on the living room, east three StOi y wall, I
recommend the entire height of wall be checked for plumbness, It would be possible
to do this with a ladder and plumb line. When this is done I also recommend that t~e
wall be examined closely inside and outside for signs of structural distress (movement,
cracks, pulled nalls, etc.). If any structural distress is noted. it should be documented
with measurements and photogranh.c;
3. I reiterate the pOint that the builder should produce drawings and calculations
for the building's structural frame. Hopefully, these will not be produced "alter the fact",
Please call if you have further questions,
Sincerely,
~\.)--U GcA^,-,\
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Roger J. Olson, P. E.
Pennsylvania Engineering Certification #012791.E
v Copy John Fowler, III
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exhibit E
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site for construction thereon; that there Is public road access to the Premises.
which mayor may not allow troublefree and uninterrupted movement of vehicles.
machinery and equipment Inddental to the Work; that Owner is the owner of record
of the aforesaid premises; that there are no unrecorded deeds; that title is good
and marketable; that a perpetual rlght of way exists to the premise.; that the
said premises ls free of any encumbrances. l1ens, easements. e tc, except as
contemplated by Article 3; that there are no actions. cause of actions, or cllllms
which might at a later date Impair the title. The OWner shall, at his expense.
forthwith remedy any breech or vlolatlon hereof whlch may exlst or arlse at any
time, The Owner partlculllrly understands and agrees that each covenant,
representation. and warranty. hereln contained. ls severally of the essence of
this Contract and the breach or vlolatlon of anyone shall excuse performance by
the Contractor,
15. No Occuoancv, Contractor shall permit Owner to Inspect the
Work at ressonsble times not to Interfere with the progress of the Work, but
Owner shall not be entitled to keys or possession of the Work prior to payment
of all SUlllS due under this Contract, IN NO EVENT SHALL THE OWNER OCCUPY OR TAKE
POSSESSION OF THE WORK BEFORE FINAL PAYMENT HAS BEEN MADE AND/OR THE CONSENT OF
CONTRACTOR, I/HICH CONSENT SHALL BE ENDORSED ON THIS CONTRACT. IN THE EVENT OIlNER
BREACHES THIS PROVISION, liE SHALL BE DEEMED TO HAVE ACCEPTED THE IIORK "AS IS" AND
DOES THEREBY RELEASE AND IIAIVE ANY CLAIMS AGAINST CONTRACTOR, A breach of this
provision by the Owner. shall be consldered a breach of the contract by the OWner
and shall entitle the Contractor to stop lIork or terminate this contr.act and
recover from the OWner payment for all lIork executed and any loss sustained at
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reasonable profit and damages, (,:)1.,1(1(10.- ,',\,,~(j-h +0 Owrv~" O~'('-r'J"'J
(\,,~ 1<1./1."'5 phll'Hln rr'Qr 10 1,,,,,.1 p.l':J"'('." c;~fZ.
16, ~onceal.d Condltlons/Increase in LImber Costs, In the event
that the Contrector encounters any concealed or unusual conditions during the
course of construction. such as solid or machine rock. quicksand, 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 drlll1ng or by spedal excavation. or the
installation of special footings, sub-base, foundation walls or draIn tiles, or
any required geotechnical. structural or other professional consultant, the
Contractor shall be compensated a(:dltlonally by Owner for such AddItional lIork
and for the materIals provlded at Contractor's usual rates and charges. a copy
of which shali be attached as Schedule "B,"
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16,1, Upon dlscovery of the unusu.ll condltlon. Contr,lctor shall
promptly give Owner wrltten notlce and .In estImate for the Additlonal \Jork,
Owner shall have the optlon of agreelng to Contractor performIng the Additional
Work on the basis of the estimate or of terminatlng this Contract 1f the estim.lte
would increase the Estimated Contract Price by more than ten percent (10\),
Owner shall give the Contractor wrltten notIce of his election to termInate
within ten (10) days of Owncr's receIpt of the Contractor's notlce, If Owner
elects to termlnate thls Contract, Owner shall pay to the Contracto< the actual
costs of labor and materlnls performed and furnished by Contractor to thc date
of the Contractor's notlce to the Owner. plus an additional fifteen percent (15\)
us per Schedule "B." The Contractor shall apply any advances. with the exception
of the Initial payment.. mnde by the OWner to such payment dlle from the Owner upon
t.erminntlon ns nforesllld and shall refund the exccss. If any, Upon termln.1tlon
o BR&R desi!ln assodates 199/,
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ATTO~NEYS AT LAW
P,O, lOX 20.
2S SOUTH PITT ST~EET
CA~LIILE. PENNSYLVANIA 17013-020'
JOHN'. 'OWL''', III
WILLIAM A. ADDAMI
MICHAIL ft. "UNOU
TlLHHONE 11' 11 2O.-noo
,AX 11' 11 2O"ell4
'OW".... ADDAM. . 'HUIHAAT
1t11,.,..1I
"ICIA" COUNI'L
DALI " 'HUOHA"'. JR.
0' COUNIlL
HONOA"ILI GALl " 'HUOHA'"
February 5, 1996
I'Us (717) au-un
aD4 ..GULIa NaIL
Lawrence B. Abrams, III, Esq.
Rhoads , Sinon
P.O. Box 1146
Harrisburg, PA 17108-1146
RE: Branch - BR'R design associates
Construction Contract
Dear Chip:
I tried to reach you by telephone today regarding our exchange ot
correspondence last Friday and to clarity under what conditions
the Branchs are willing to entertain the immediate sale ot their
home. In an etfort to keep moving this mat~er to resolution, the
Branchs have authorized me to make the tollowing 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 sate,
2, The Branches will pay draw 18, net ot 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 chdnge 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.
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FOWLER, ADDAMS, SHUGHART It RUNDLE
ATTOftNEYS AT LAW
P,O. lOX 20s
21 SOUTH PITT STftUT
CAftLIILE. PENNSYLVANIA 17013.0201
JOHN t. 'OW",''. III
WILLIAM It, ADO""I
MleHAIL III. "UNDLI
TUEPHONI 17171 241.8300
FAX 17171 241.8114
'OW,"UI, ADDA'" . 'HUOHA""
IU7'."".
IIIICIAL. COUNIIL
GALl p, IHUOHA"'. Jill.
0' COUN'U.
HONOIIIAILI DALI. Po IHUOHA'"
March 14, 1996
I'AX' (717) ua-u5I
aD4 "GULU MAIL
Lawrence B. Abrams, III, Esq,
Rhoads , Sinon
P.O. Box 1146
Harrisburg, PA 17108-1146
RE: Branch - BR'R design associates
Construction Contract
Dear Chip:
Upon my receipt of your March 6, 1996 fax letter and BR'R's
responses, I mailed a copy of the same to my clients on March 7,
1996. The Branchs, however, have been since March 4, 1996 in the
process ot arranging tor other contractors, including an
engineer, to complete the contract and to remedy structural
deticiencies. Nevertheless, I have been authorized to otter BR'R
the opportunity to mitigate its damages to the Branchs under the
contract by having BR'R return to the job site and promptly
complete those items to which it agreed in its responses,
Please advise no later than Wednesday, March 20, 1996 regarding
this otter. Otherwise, my clients will proceed with the other
contractors. In all events and as previously requested ot and
promised by BR'R, please provide me as soon as possible with
current plans and specifications for the Branch residence in
order to minimize turther investigative engineering exponses.
Very truly yours,
FOWLER, ADDAMS, SHUGHART' RUNDLE
John B. Fowler, III
JBr, III/mp
cc: Mr. and Mrs. William J, Branch
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BR&R DESIGN ASSOCIATES
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 96-1742 CIVIL TERM
WILLIAM BRANCH AND
LESLIE BRANCH
Defendants,
CIVIL ACTION - LAW
HZKORANDUK O~ LAW IN SUPPORT O~ PETITION TO
OPEN/STRIKE JUDGMENT AND STAY PROCEEDINGS
I. INTRODUCTIOB
William and Leslie Branch (the "Branches") entered into a home
construction contract with BR&R Design Associates ("BR&R"). The
principals of BR&R are Cornelius Rusnov, reputedly an architect by
education and training, and Sandra Buckley-Rusnov, reputedly a
civil engineer and interior designer by education and training,
The construction contract which was drafted by BR&R's attorneys is
the basis of this dispute.
(The Contract is Exhibit A to the
Complaint for Confession of Judgment.)
The defects in construction are numerous. The integrity of
the structure itself is in question as the girders are not properly
supported, and at least one wall has not been pr.operly erected.
The floors are not level and sag, and the heating system has not
been properly installed. All of the defects are items which should
have been corrected under the terms of the Contract.
II. ARGUMENT
A. ~ Court Mu.t Acceot The Branohe.' Evidenoe As True
In considering a petition to open and/or strike a confession
of judgment, the reviewing court is required to view all evidence
in the light most favorable to the petitioner and to accept as true
all evidence and proper inferences supporting the petitioner's
defense, while rejecting adverse allegations of the party obtaining
the judgment. Rittenhouse v. Barclav White. Inc., 425 Fa, Super.
501, 505, 625 A.2d 1208, 1210 (1993); Weitzman v. Ulan, 304 Pa.
Super. 204, 209, 450 A,2d 173, 176 (1982). Applying this standard,
all evidence which supports the Branches' defenses must be accepted
as true.
.. The Judqment Is Defective On Its I'aoe And Hut .e
stricken
A contessed judgment is properly stricken where there is a
defect in the judgment which is apparent on the face of the record.
Davis v, Woxall Hotel. Inc., 395 Pa. Super. 465, 468, 577 A.2d 636,
638 (1990). The record before this Court obligates the striking of
the judgment entered against the Branches,
Confession of judgment requires the warrant of attorney to be
definite, clear and explicit. Vincler v, Vincler, 400 Pa, Super,
157, 159, 583 A,2d 4, 5 (1990).
The warrant contained in the
Contract (drafted by BR&R) is not clear, in that it is buried in a
large, block, paragraph of the Contract. It is not set forth in
bold face type, and it contains no heading. As Pennsylvania courts
regard confessions of judgment as a severe weapon, inconspicuous
drafting such as that employed by BR&R is a fatal defect.
[Al warrant of attorney authorizing judgment is perhaps
the most powerful and drastic document known to civil
-2-
law..,. The signing of a warrant of attorney 18
equivalent to a warrior ot old entering combat by
discarding his shield and breaking his sword. For that
reason the law jealously insists on proof: that th18
helplessness and impoverishment wae voluntarily accept.d
and consciously assumed.
Germantown Mfa. Co, v. Rawlinson, 341 ?a. Super, 42, 47, 491 A.2d
138, 141 (1985), quoting Cutler CorD. v. Latshaw, 374 Pa, 1, 4-5,
97 A.2d 234, 236 (1953); see also, Beckett v. La~~, 395 Pa. Super.
563, 575, 577 A,2d 1341, 1347 (1990); Scott Factors. Inc. v.
Hartlev, 425 Pa. 290, 292-93, 228 A.2d 887, 888 (1967). Mor.over,
any doubt as to the validity of the warrant must be resolved
against BR'R. Dollar Bank v. Northwood Cheese Co., 431 Pa. Super.
541, 547, 637 A.2d 309, 311-12 (1994).
c. All pr.requi.it.. ror Op.ninq A Cont....4 Ju4qa.nt
Have B..n Met
Viewed in the light most favorable to the Branches, there i.
more than adequate support for opening this judgment. Th.
equitable considerations alone should work as an ostoppel on BR'R'.
inconsistent conduct.
The party seeking to open a confessed jUdgment must:
(a) timely tile a petition;
(b) aver a meritorious defense; and
(c) produce evidence sufficient for submission to a jury.
Wenaer v. Ziealer, 424 Pa, 268, 272, 226 A,2d 653, 655 (1977); ~
Bank. Nat'l Ass'n v. Balsamo, 430 Pa. Super. 360, 369, 634 A.2d
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64!5, 649 (1993).
satisfied.
These prerequisites have clearly been
1. Tbe Branobes Promptly tiled tbi. Petition
On April 1, 1996, BR&R filed a Complaint For Confession
Of Judgment, which was served the following day, The Branches'
Petition To Open/Strike Judgment And Stay proceedings was filed on
April 19, 1996.
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2. Tbe Branobe. Have Alleged Meritoriou. Deten.e. Wbiob
Can BI Su!:lmitted To A Jury
"If evidence is produced which in a jury trial would require
the issues to be submitted to the jury, the court shall ~ the
judgment. Pa R.C.P. 2959 (e) (emphasis added); Frankford Trust v,
Stainless Steel Servi~, 327 Pa, Super 159, 163, 475 A.2d 147, 150
(1984) .
The opening of a judgment is mandatory where evidence
exists which raises a jury question to the Court.
Grove North
America oiv,of Kiddie Industries. Inc, v, Arrow Lift & Const.
Eauioment Co.. Inc., 421 Pa. Super, 12, 18, 617 A,2d 369, 372
(1992).
a. BR'R Ha. Br.aohed It. Obligations Under Tbe
Contraot
BR&R has not fulfilled its duties under the Contract. Tho
alleged !:lasis for the judgment by confession is the failure of the
Branches to fund "change order" payments, as well as other charges
allegedly arising under the Contract, However, the confession of
jUdgment provision in section 17 of the Contract specifically
provides for confession only where entered to collect any sum which
-4-
may be due and payable, as well as for the Ratisfactlon of damages
in case of breach of contract by the Branch...
It is ironic then that the Complaint is silent with respect to
the fact that during the course of construction of this project it
is BR&R who substantially breached the Contract by failing to
perform in accordance with its terms.
Where a warrant of attorney clause authorizes entry of
jUdgment by confession after default, a jUdgment entered without
default is invalid. Commonwealth National Bank v. Boetzelen, 338
Pa. Super, 237, 242, 487 A.2d 943, 946 (1985). Under no analysis
can it be stated that the Branches have defaulted on their
obligations under the Contract. 'The Contract provided for a
periOdic payment schedule predicated on achievement of levels of
completion. Each "draw" is depicted in Schedule A to the Contract
and entitled "Residential Dwelling Drawing Schedule." At the time
that the substantial deficiencies in design and construction were
discerned, six of the eight draws had in fact been paid by the
Branches. In an effort to seek amicable resolution in good faith,
the seventh draw was tendered to Lawrence B. Abrams, III, Esq.,
counsel for BR&R, for safekeeping and delivery to BR&R on condition
that BR&R complete the contract and remedy defective work within a
reasonable time and without delay. Indeed, by letters dated
Februar.y 5 and 8, 1996, Attorney Abrams was notified of the
conditions under which he was authorized to release draw 17 in the
sum of $45,000 to BR&R and of the provision tor the Branches'
-5-
~ayment ot draw #8 as soon as the work was substantially completed.
(These letters are Exhibit G to this Petition.) The facts at hand
are replete with examples of BR'R'. def.ult. under the Contract,
and BR'R's failure to fulfill the obligations meriting payment.
Breach of contract by the party confessing judgment is a valid
defense by the party petitioning to open the judgment, ~
ExAx, 340 Pa, Super. 483, 490, 490 A.2d 882, 885 (1985).
(1) The Work
DeUcient
Pertormed
By
BR'R
...
As set forth in the Petition to Compel Arbitration, which was
served upon BR&R several weeks prior to the institution of this
action by BR&R, BR&R's performance in the design and construction
of the house was materially deficient in several respects,
Substantial structural problems were identified by consulting
engineers, including lack of structural integrity in several
locations.
BR&R received actual notice of these structural
deficiencies, in the form of two reports prepared by a professional
engineer, one dated January 22, 1996 and one dated February 19,
1996 (the "Olson Reports").
(The Olson Reports are Exhibit 0 to
thiR Petition,) Both reports were provided to BR&R in an effort to
obtain voluntary remediation by BR&R of these substantial
structural deficiencies. The structural defects noted in the Olson
Reports are summarized as follows:
a. Lack of proper fastening of jack posts to- wood
girders,
b. Additional floors not being level.
-6-
c. Inadequate heating system.
d. Improperly installed exterior sidinq.
e. out-of-plum wall (leaning to the outside), living
room which can be visually observed by almost 1
inch in 6 feet.
f. Floor sag, dining room and foyer, with an attempt
by BR&R to use 2 x 4 shims at the bottoms of the
floor joists in order to attempt to level the
ceiling, rather than add an additional girder and
supporting columns,
g. Master bedroom floor sag and def leQtion. To
correct this deficiency, an additional support
girder needs to be installed. BR&R attempted to
use a patch "that didn't work" in correcting the
noticeable floor sag where deflection is
pronounced.
h. Floor sag and slope under south section of house.
Again, caused by the lack of satisfactory
structural framing plan or a complete lack of any
framing plan. BR&R installed girders which did not
run the full depth of the crawl s';lace and are
supported "temporarily" on steel adjustable jack
posts, This construction was implemented by BR&R
in order to avoid the cost of two additional
girders extending the entire depth of the crawl
space. It was further noted that the original
girder is shimmed up by a wood block in lieu of a
proper concrete brick or steel shim, which is
characterized as a poor building practice.
BR&R received actual notice four months ago that substantial
structural deficiencies in the construction and design were extant.
Having received actual knowledge of the exiBtence of substantial
and material defects in design and construction by BR&R, payment
has been properly withheld.
BR&R has attempted to avoid
arbitration as a method of dispute resolution and instead has
proceeded by confessing judgment,
-7-
In addition to the serious structural deficiencies as set
forth above, workmanship has been deficient, resulting in the
enumeration initially of over 100 separate and distinct
deficiencies, all of which were reported to BR&R and most of which
it refuses to correct. Lists of deficiencies were furnished to
BR&R on at least two separate occasions, the most recent of which
wa8 February 8, 1996. (The February 8, 1996 list is Exhibit F to
this Petition).
(2) BR&R H.. Refused To Remedl.ate The
Deficiencies In The Construction In
violation Of The Terms Of The Contract
BR&R has to date refused to remediate the defects, in blatant
violation of its representations and warranties in the Contract.
Section 18 states in pertinent part as follows:
Correction of the Work....Contractor shall
promptly correct Work which does not conform
to the Construction Documents....
Furthermore, although the house is incomplete, BR&R has ceased
working on the house and thus BR&R is for all intents and purposes
a180 in violation of section 20 of the Contract, which states in
pertinent part as follows:
Warrantv: Inscection Proced~ contractor
warrants that for a pet'iod of one (1) year
from the date of the -::ompletion, Contractor
will remedy or replace or repair defective
work or defective materials in the work.
The law in Pennsylvania with respect to construction
warrantie8 8uch a8 the one at issue is that BR&R should be given "a
rea80nable time to cure defective materials and workmanship." If
-8-
BR&R cannot cure within a reasonable time, which it has not, then
th8 Branche8 are entitled to an award of damages.
Barrack Y...
l(olea, 438 Pa, Super. 11, 19, 651 A.2d 149, 153-54 (1994). BR&R
has been accorded more than sufficient time in which to cure the
construction defects, but BR&R failed to do so in violation of th~
covenants in the Contract. The Branches are entitled to damages.
The Branches have been obligated to engage, at substantial cost,
substitute contractors to complete the home and to remedy
structural deficiencies. By letter dated March 14, 1996, BR&R was
formally apprised of the deficiencies, offered the opportunity to
remediate and informed of the intent to seek pecuniary damages if.
remediation by BR&R was not performed.
(The March 14 letter is
Exhibit H to this Petition.)
(3) BR'R railed To Commence And To complete
Construction On A ,imely Basis
On or about December 17, 1994, the Branches entered into an
agreement of sale for their former home which provided for
settlement on July 29, 1995, prior to which, the Branches obtained
assurances from BR&R that their new home would be comrrleted by
August 1 1995.
In accordance with Section 4 of the Contract,
construction was to begin by February 1995. At that time and by
its own admissions, BR&R was behind schedule and overbooked with
construction projects, and construction did not begin until early
April 1995. In accordance with Section 4 of the Contract,
-9-
completion of the home was required by August 1995. As of the date
of this Petition, construction is by no means complete,
constituting a material breach of its obligations undor the
Contract.
(4) The Ixpertise Which Induced The Branche.
'1'0 Inter The Contract Was Not rorthcominq
The Branches entered the Contract with BR&R in order to
benefit from the proffered architectural, engineering and interior
design skills and expertise of the two principals of BR&R (Sandra
liuckleY-Busnov and Cornelius Busnov).
However, Sandra Buckley-
Rusnov ceased to participate in the design and construction of the
home in material breach of BR&R's contractual obligations.
(5) BR'R Has Improperly As.erted Surcharge.
And Charge. ror Alleged "Change Orders"
BR&R has fabricated substantial and unsupported "surcharges."
The items represented in the "surcharges" are properly included in
the contract price as originally negotiated. These inflated and
truncated charges have been asserted by BR&R, ostensibly for
"change orders." In this regard, the Contract provides a spocif ic
and orderly method of processing change orders:
2.1 Chanqe Order~. 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....
In addition, the Contract provides:
2.1.1 The Contractor shall
Orders for the Owner's
execution. . . .
prepare Change
approval and
-10-
III. LaTTa. or CRaDIT
Paragraph 17 of BR&R's Complaint for Confession of JUdgment
avers that the confession of judgment clause is intended as
collateral security for the Branches' full payment of the amount
due BR&R under the Construction Contract. As indicated on the
Affidavit attached as Exhibit "A", the Branches are prepared to
post a standby, irrevocable letter of credit issued by Corestates
Bank, N.A. in lieu of confessed judgment and as a means of assuring
such payment as may be due BR&R. The posting of the letter of
credit would eliminate the question of financial responsibility
and, as such, the need for judgment by confession. It would enable
the parties to concentrate on the merits of the underlying claim
and the value of the remediation which is required to correct the
alleged structural deficiencies and improper design.
IV. CONCLUSION
The confession of judgment is faulty on its face, as the
warrant of attorney is not definite, clear or explicit. A judgment
which i. lacking must be str icken. Moreover, BR&R has
substantially breached the Contract by failing to complete the
construction of the Branches' home and in providing deficient
construction in the portion of the home it did construct.
-12-
properly pleaded in the Answer." The respondent pleaded in its
answer to Paragraph 14:
The averments contained in paragraph 14 constitute
conclusions of law to which no response is required
and therefore are denied. It is further denied that
the construction was materially deficient, including
the alleged deficiencies stated in the purported
engineer reports or as alleged in Paragraph 14 of
the petition. . . .
The Respondents have stated the issue to be whether the facts set
forth in the Petition and engineer's reports constitute structural
deficiencies sufficient to open or strike the judgment. The
Respondent has pleaded no facts to raise an issue of material fact
which would require the Petitioners to take depositions or other
discovery.
WILLIAM A. ADDAMS
Supreme Court I.D. No. 06265
Date: June 21, 1996
FOWLER, ADDAMS, SHUGHART , RUNDLE
28 South pitt Street
P. O. Box 208
Carlisle, PA 17013-0208
(717) 249-8300
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By: ~~r' ,", :i:4~~
Attorneys for Defendants'
Petitioners, William Branch and
Leslie Branch
0.. COUNSEL:
EDWARD C. TOOLE, JR.
CLARK, LADNER, FORTENBAUGH & YOUNG
One Commerce Square
2005 Market Street
Philadelphia, PA 19103
Confession of Judgment as Exhibit "A") which is set forth in full
as follows:
17. Confession of Judgment. As further collateral
to secure Owner's promises to pay the Contract Price,
upon default of any payment provided for in Article 2
aJ..,r thA pa~t~e <!ate, the OWner does"""ner'ilby
authorize and empower any attorney of any Court of Record
of Pennsylvania or elsewhere to appear for and to enter
judgment against the Own~r, at any time after the datft
hereof and with or without a declaration, in favor of the
Contractor, its successor or assigns, in the total amount
~~d*::eom:lclt ~~i~:csu~\ :~r~~r i~::t~:e b~ a:~~~;c:~i~~
collect anv sum which mav be due and pavable by the Owner
under the terms of this Contract and anv supplement or
amendment thereto or may be due and pavable otherwise as
!:liilllaSl9. bv the ..Qlrmer j,n~lilLg:' b~ of this Contract,.
and any sUDDlement or amendment theret.Q by the Owner,'
with interest, costs of suit, a full release of all
errors, without stay or execution, and with 5t 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 JUDGMENT BY CONFESSION THE OWNERS, DO HEREBY STATE,
THAT THEY HAVE EARNINGS IN EXCESS OF $10.000.00 ANNUALLY.
(emphasis added) .
On April 19, 1996, Defendants filed the within Petition
to Open/Strike Judgment and Stay Proceedings, contending that
Defendants possess a meritorious defense (in essence, complaints of
faulty design and workmanship in construction of the building).
The Motion to Strike Judgment was based upon the alleged deficiency
in the above quoted language to adequately place the Branches on
notice of the rights to confess judgment set forth in the
Construction Agreement.
2
The official note to newly promulgated Rule 206.7
emphasizes the Petitioner's burden of proceeding to make a record:
If an answer is filed which raises disputed
issues ot material fact, subdivision (c)
places on the petitioner the burden ot
proceeding to take depositions or other
discovery as provided in the order. If the
petitioner does not proceed as required, "the
petition shall be decided on petition and
answer and all averments of tact responsive to
the petition and properly pleaded in the
answer shall Be deemed admitted for the
purpose of this subdivision."
As set forth above, Respondent timely filed an Answer
properly averring that the work was not deficient but was done in
a workmanlike manner and in accordance with the terms of the
agreement between the parties. The Answer further states that all
charges made were for work which was done pursuant to the request
of the Petitioners. These facts must be accepted by the Court as
undisputed and true for purposes of this Petition. Viewed in such
a light, the Petitioners lack a meritorious defense which would
permit them to open or strike the within judgment. Contrary to the
assertions made in Petitioner's brief, the Court may not grant
infe.rences to the Petitioner based upon unsupported allegations in
the Petition. On the contrary, "the burden is on the Petitioner to
support his allegations of fact by depositions." Retzback v.
Berminco, 222 Pa. Super 523, 294 A.2d 917 (1972). If after being
ruled to proceed, the Petitioner does not take depositions, the
factual allegations of his opponent will be taken as true. Smith
v. Dale, 405 Pa. 293, 175 A.2d 78 (1961); Rose v. Cohen, 193 Pa.
5
Super. 454, 165 A.2d 264 (1960); Koqen v. Horowitz, 169 Pa. Super.
349, 82 A.2d 530 (1951).
The Court may not open a confessed judgment absent a
factual record created through depositions. 12 Standard Pa.
Practices 2d S 71:132 (1993). ("Unless the Applicant, when
confronted by a responsive answer and denial, supports his
application by depositions, the averments of the answer may be
taken to be true, and the judgment may not be opened.")
This Court must ignore as irrelevant surplusage,
Petitioner's reference to a separate "Petition to Compel
Arbitration" filed in a separate action. Indeed, that case has
been dismissed by this court, by Order dated June 3, 1996.
Moreover, the attempt to offer a letter of credit of
indeterminate amount should not be considered. The lien of
judgment Plaintiffs presently possess is a valuable property right,
bargained for with Petitioners and protected by Pennsylvania and
Federal constitutional law. There is no procedure for substitution
of an amorphous "letter of credit" for a valid judgment, nor is
such letter of credit a matter of record which may be considered in
this case.
6
affirmed. Equibank N.A. v. Dobkin, 284 Pa, Super. 143, 425 A.2d
461 (1981).
Petitioners also argue that the authorization for
Confession of Judgment contained in the Construction Contract
permits the Confession of Judgment only upon "default" of
Petitioners.
Assuming, without admitting, that Petitioners are
correct in their interpretation, the pleadings make it clear that
a default, in fact, occurred. At paragraph 11 of the Complaint is
it is averred "the Branches' failure to make payment in the amount
of $257,136.00 is a default under the terms of the Contract."
The remaining" facts" stated in Petitioners' brief should
be ignored by this Court as they are not properly of record in this
case and are contrary to the facts which this Court must deem to
have been admitted by the Petitioners through their failure to make
a proper record in this case pursuant to Rule 206.7.
C. THERE IS NO BASIS OF RECORD TO STRIKE THE
JUDGMENT .
An application to strike off a judgment may not be
granted absent a fatal defect in the judgment appearing on the face
of the record. Moreover, where judgment is confesBed by complaint
procedure (as in the instant case) the facts averred in the
comclaint are taken to be true for curcoses of the Petition to
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BR&R DESIGN ASSOCIATES
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 96-1742 CIVIL TERM
WILLIAM BRANCH AND
LESLIE BRANCH
Defendants.
CIVIL ACTION - LAW
DEFENDANTS' MOTION TO COMPEL
AND NOW, come the Defendants, William and Leslie Branch, by
their attorneys, Fowler, Addams & Rundle, and file this motion to
compel the Plaintiff to answer their request for production of
documents and interrogatories, and in support thereof assert the
following:
1. This litigation arises out of a dispute involving the
construction of the Defendants' house by the Plaintiff.
2. The Plaintiff has filed this confession of judgment action
claiming that in excess of $350,000 is due primarily as a result of
numerous change orders. The change orders have been denied by the
Defendants, who had filed a prior action to No. 96-1182 against
BR&R Design Associates tQ recover damages as a result of alleged
defective and deficient construction of the house,
3. The issues and the facts in this construction litigation
are complex.
4. On February 25, 1997, the Defendants served the "Third
Request for Production of Documents" attached as Exhibit "A"
requesting the resumes of the principals of BR&R Design Associates,
who held themselves out as possessing certain credentials.
5. Counsel for BR&R Design Associates has failed to produce
the resumes despite repeated verbal and written requests.
6. On June 3, 1997 the Defendants served the interrogatories
attached as Exhibit "B" to ascert'ciin the actual costs and expenses
incurred in the construction of the hOllse as paid to each
previously identified subcontractor and material supplier.
.
.
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Exhibit A
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Please list all costs and expenses incurred in the
construction of the Branch house as follows:
1 . SUBCONTRACTORS:
please statet
A. Rick Thomas
Wi th respect to each subcontractor,
(1) Amount paid and date of payment.
(2) Any additional amount claimed by subcontractor as due.
(3) Your basis for not paying all or any part of the amount
listed in (2) above.
(4) Please attach copies of invoices, receipts or other
documentation of the above items.
ANSWER,
B. Advanced Concrete Systems, Inc.
(1) Amount paid and date of payment.
(2) Any additional amount claimed by subcontractor as due.
(3) Your basis for not paying all or any part of the amount
listed in (2) above,
(4) Please attach copies of invoices, receipts or other
documentation of the above items.
ANSWER:
-I ~
respecting the value or merit of a claim or defense or respecting
strategy or tactics as protected by Pa,R,Civ.P. 4003.3,
3. Plaintiff objects to Defendants' interrogatories to
the extent that they call for confidential and/or proprietary
information,
4, PI aintiff objects to Defendants' interrogatories to
the extent that they call for information regarding matters not.
relevant to the subject matter of this action and not reasonably
calculated to lead to the discovery of admissible evidence,
5. Plaintiff objects to Defendants' interrogatr.>ries to
the extent that they are overbroad. unduly and unreasonably
burdensome and oppressive.
6. Plaintiff objects to Defendants' interrogatories to
the extent that they call for information not known to Plaintiff,
nor reasonably ascertainable by Plaintiff because such information
is in the hands of or under the control of third parties not within
Plaintiff's control,
7, Plaintiff objects to Defendants' interrogatories to
the extent that they call for information already known to
Defendants or information available to Defendants from sources
other than Plaintiff which is equally accessible to Defendants and
to Plaintiff,
2
8. Plaint iff obj ects to Defendants' interrogatories to
the extent that they are so vague and ambiguous that they are not
subject to reasoned interpretation.
9. Plaintiff objects to Defendants' interrogatories as
sought in bad faith, vexatious, unduly and unreasonably burdensome,
causing unreasonable annoyance, harassment, oppression, burden and
expense, Plaintiff further objects to interrogatories 2R, 2S, 3A,
3B and 4 as beyond the scope of permissible discovery pursuant to
Cumberland County Local Rule 4005,1 which limits the number of
interrogatories or requests for admission to a party, as a matter
of right, to 40 in number,
10. Plaint i ff obj ects to Defendants' interrogatories to
the extent they impose requirements to respond or supplement
responses beyond those which are provided for in the Pennsylvania
Rules of Civil Procedure,
The General Objections ass~rted above shall be deemed to
be applicable to and continuing with respect to each of Defendants'
interrogatories, The General Objections asserted above are
incorporated into each and everyone of Plaintiff's responses set
forth herein, Such objections are !lot waived, nor in any manner
limited, by any responses to any specific interrogatory, Plaintiff
reserves the right to amend, supplement, or alter its responses to
Defendants' interro9atories at any time,
3
II. JlIi'.'lPONSES
lA-V. Plaintiff objects to this interrogatory and its
subparts to the extent they seek confidential and/or proprietary
information. Plaintiff objects to this interrogatory and its
subparts as overbroad, unduly and unreasonably burdensome and
oppressive, sought in bad faith, vexatious, causing unreasonable
annoyance, harassment, oppression, burden and expense. Plaintiff
objects to this interrogatory and its subparts to the extent they
call for information regarding matters not relevant to the subject
matter of this action and not reasonably calculated to lead to the
discovery of admissible evidence,
2A-S. Plaintiff objects to this interrogatory and its
subparts to the extent they seek confidential and/or proprietary
information, Plaint if f obj ects to this interrogatory and its
subparts as overbroad, unduly and unreasonably burdensome and
oppressive, sought in bad faith, vexatious, causing unreasonable
annoyance, harassment, oppression, burden and expense, Plaintiff
objects to this interrogatory and its subparts to the extent they
call for information regarding matters not relevant to the subject
matter of this action and not reasonably calculated to lead to the
discovery of admissible evidence, Plaintiff objects to subparts 2R
and 25 as beyond the scope of permissible discovery pursuant to
Cumberland County Local Rule 4005,1 which limits the number of
interrogatories to a party, as a matter of right, to 40 in number,
4
3A-B, Plaintiff objects to this interrogatory and its
subparts to the extent they seek confidential and/or proprietary
information, Plaint if f obj ects to this interrogatory and its
subparts as overbroad, unduly and unreasonably burdensome and
oppressive, sought in bad faith, vexatious, causing unreasonable
annoyance, harassment, oppression, burden and expense, Plaintiff
objects to this interrogatory and its subparts to the extent they
call for information regarding matters not relevant to the subject
matter of this action and not reasonably calculated to lead to the
discovery of admissible evidence, Plaintiff objects to this
interrogatory and its subparts as beyond the scope of permissible
discovery pursuant to Cumberland County Local Rule 4005.1 which
limits the number of interrogatories to a party, as a matter of
right, to 40 in number,
4, Plaint if f obj ects to this interrogatory to the
extent it seeks confidential and/or proprietary information,
Plaintiff objects to this interrogatory as overbroad, unduly and
unreasonably burdensome and oppressive, sought in bad faith,
vexatious, causing unreasonable annoyance, harassment, oppression,
burden and expense, Plaintiff objects to this interrogatory to the
extent it calls for information regarding matters not relevant to
the subject matter of this action and not reasonably calculated to
lead to the discovery of admissible evidence, Plaintiff objects to
this interrogatory as beyond the scope of permissible discovery
pursuant to Cumberland County Local Rule 4005,1 which limits the
~
.
.
. ,
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Exhibit 0
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BRANCH ACCOUNT ACTIVITY DETAIL REPORT (continued)
Accountlt Account Name Amount
5109103 Closet Accessories $ 78.45
5109104 Security System $ 1,987.50
5109105 Kitchen/Balh Cabinets $ 9,242.81
5109106 Counter tops $ 4,756.94
5109108 Fireplace (Stone Work) $ 3,298.00
5109109 Miscellaneous $ 267.29
5109112 Plumbing $14,808.67
5109113 HVAC $16,181.67
5109122 Electrical Fixtures $ 5,931.31
5109123 Service/Wiring L8,t09.00
SUBTOTAL $393,812.27
Support Staff $ 14,730.00
Taxes, Insurance, Work. Comp $ 7,891.00
TOTAL COSTS $416.434.00
c:lcurrenllblll1chlcoalS.doc
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PRIVILEGED - THIS DOCUMENT PRODUCED FOR SETTLEMENT PURPOSES ONLY,
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BR&R DESIGN ASSOCIATES,
PlaintiEl
IN TIlE COURT OF' COMMON PLEAS OF'
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, L '.1% -I) L '/012
WILLIAM J. BRANCH and
LESLIE L, BRANCH,
Dc f end,lIlt n
$~50,OOO.OO JUDGMENT IN FAVOR OF
PLAINT I 1'1' DATED ,llld HECOHDED
Af'RIl, 1, 1'.196
,flJDGMENT SAT f S FACT [ON
BR&R mlS1GN ASSOCIATES, Plaintiff in the above Judgment,
does appear and acknowledge Lhelt it hJS this Jay received from
WILLIAM J. BRANCH and LESLIE L, BRANCH, the Defendants in the
above Judgment, full payment Jnd satisfaction of the same, with
interest and costs, and desires that satisfaction therefore shall
be entered upon the recol-ds tllel.eof.
AND FURTHER, it doee; hereby aUl-hol"ize ilnJ empower the
Prothonotary of said Court to appear for it and in its name and
stead to enter full satisfaction upon the record of said
Judgment, as fully und effectually, to u11 intents and purposes
as it could were it present to do so. And for so doing this
shall be your sufficient warrant of authority,
IN WITNESS WHEREOF, the Plaintiff has cilllsed these presents
to be signed by its proper corpora~r ?f.f icel.s and its corporate
seal to be affixed thereto, thifJ_Lk'ffi. day of December, 1998,
:~
8R&R DESIGN ASSOCIATES
Uy: C.-J!'-'\t~~} ~l~,'r~"'-r
.<tiL,.j..-JJJP---2'J,;,Z _~~II..CX
COMMONWEALTH OF PEN
.."
COUNTY OF LF.ltl)Lt~.- .'"
ON THIS, the ...:X~_ u"y I,)L Dec:elllbcl, l~~8, be[on.! lIle, d 'J II '
~otary Pu lie, I,the r.-JndersigJ1~ offJ.~er, penJonally appeared ~i(.IL~"<L \Q",-I"~I
\A.J\10V'l 'fne II !..\~rlOV. .\~, W)lO ~lcknowledgedteU:'I",~{I'VCI-rO I~
, be ~ , u I ':>L..___ of 8R&R, DESIGl'l
ASSOCIATES, a Q)\~PQr~, and the he she as ~ ~( ~ll!Jl J)c:LltIU I' J
r~'\ilV"'It')"7f'b",ing Juthorized to do fJO, execute the .,.
,") ..L ' foregoing instrument for the Plll"pOSeS thelCHI C. ontaJ.ned _~1M~1l, IIU(_t(:. t'l
\'U\{\I~,5k.\~~g....t4<e---nsmeo-~f,- UI" cQrporatiqn b;' f+WHse-rr/-h~l"~ as IU.Q~'\<'tt
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