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HomeMy WebLinkAbout02-4668JOHN SPAYD D~ND VICTORIA SPAYD, HUSBAND AND WIFE, Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND A_ND WIFE AND INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Phone: (800) 990-9108 or (717) 249-3166 JOHN SPAYD AND VICTORIA SPAYD, HUSBAND AND WIFE, Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND AND WIFE AND INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' COMPLAINT AND NOW come the Plaintiffs, John Spayd and Victoria Spayd, husband and wife, pro se, and respectfully represent as follows in support of this Complaint: Parties 1. Plaintiffs, John Spayd and Victoria Spayd, husband and wife, are adult individuals residing at 209 Meadow Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Aqua Blue Pools, engaged in the business of selling, swimming pools with its main place apparently is a partnership constructing and installing of business located at 945 Doubling Gap Road, Newville, Cumberland County, Pennsylvania 17241. 3. Defendants, Joseph P. Ruda and Terri Ruda, husband and wife and individually, are adult individuals residing at 945 Doubling Gap Road, Newville, Cumberland County, Pennsylvania 17241, and are the owners and operators of Defendant, Aqua Blue Pools. 1 Backqround Alleqations 4. On or about July 14, 2002, Plaintiffs contracted with Defendants for the purchase, construction and installation of a swimming pool (including accessories and patio) at their residence at 209 Meadow Lane, Mechanicsburg, for the total sum of $19,211.00 (Nineteen Thousand Two Hundred and Eleven Dollars). A copy of the duly executed written contract is attached. 5. In or about August 2002, Defendants constructed and aforesaid swimming pool at the residence of the installed the Plaintiffs. 6. Upon completion, it was immediately apparent to the Plaintiffs that the aforesaid swimming pool was defective, unusable and would require major repairs. 7. According to expert consultants Plaintiffs, the defects and problems with the retained by the aforesaid swimming pool constructed and installed by Defendants include the following: a) the concrete is sloppy and uneven because the concrete truck sat in excessively high temperatures for 2 hours causing the concrete to begin to cure before pouring; b) very little if any crushed stone was used prior to the pouring of the concrete; c) although wire was placed on the bottom of the concrete, it should have been lifted up into the mix for 2 strength against cracking; d) the steps are "spongie" because there was not enough crushed stone and no concrete was at the bottom 2 steps as is standard installation practice; e) the slope of the right wall is steeper than the slope of the left wall; f) the pool liner does not fit correctly because the liner was measured inaccurately by Defendants and was not suctioned to the walls -- there are gaps on both sides of the steps where the liner should meet the steps flush; g) the Sam light was screwed into the liner too early in the process, causing patches all around the light where the screws had to refitted when the liner was reinstalled; h) the skimmer boxes protrude into the pool 3/4" because Defendants used plywood pool wall skimmers instead of the skimmers used for steel wall pools which are designed to fit flush with the walls; i) the skimmers are uneven from the front to the back making it more difficult to monitor water flow levels; j) the floor of the valleys on the bottom; k) pool is uneven with bumps and the chlorinator and jandy valves were connected 3 wrongly and the pipes were labelled wrongly; 1) pool plumbing was not done correctly in that multiple drains were put together that should have been separate; m) no overflow drains were installed which is a standard for winter runoff; n) silicone was used around the bottom drain which should not have been needed or used if the drain was properly installed; o) the slope of the concrete is erroneous and has all the water running toward the Plaintiffs' home; p) there are cracks in the concrete on the pool deck and major cracks around all the areas where expansion joints were used; and q) there are many areas around the pool and concrete patio that were patched by Defendants and that are a different color and texture than the rest of the concrete. 8. To date, the Plaintiffs have paid to Defendants approximately $18,000 (Eighteen Thousand Dollars) pursuant to their written contract for the defective swimming pool. 9. Plaintiffs have further expended in excess of $6,000 (Six Thousand Dollars) to attempt to repair the defective swimming pool constructed and installed by Defendants. 4 10. According to estimates by experts in the swimming pool industry, it would cost approximately $19,000 to repair the defective swimming pool constructed and installed by Defendants. Count I: Breach of Contract 11. The averments set forth in paragraphs 1 through 10 are incorporated herein by reference as if fully stated. 12. Pursuant to the written contract for the aforesaid swimming pool, Defendants promised to construct and install a swimming pool "free of defects in workmanship." 13. For the reasons set forth in paragraph 6 above, which are incorporated herein by reference, the aforesaid swimming pool constructed and installed by Defendants is defective, unusable and requires major repairs. 14. Defendants have breached their written contract with Plaintiffs. 15. As a direct and proximate result of the breach of contract by Defendants, the Plaintiffs have sustained damages in excess of $24,000 (Twenty Four Thousand Dollars) and will sustain further damages in excess of $19,000 in order to repair and remedy the aforesaid defects to the swimming pool. WHEREFORE, Plaintiffs demand judgment against Defendants, jointly and severally, in an amount in excess of $43,000 (Forty Three Thousand Dollars) provided by law. together with costs and interest as Count II: Neqliqence 16. The averments set forth in paragraphs 1 through 15 incorporated herein by reference as if fully stated. 17. are Defendants negligently, carelessly and/or recklessly constructed and installed the aforesaid swimming pool at the residence of the Plaintiffs as set forth in paragraph 6 above, which is incorporated herein by reference. Dollars) order to pool. 18. As a direct and proximate result of the negligence, carelessness and/or recklessness of Defendants, the Plaintiffs have sustained damages in excess of $24,000 (Twenty Four Thousand and will sustain further damages in excess of $19,000 in repair and remedy the aforesaid defects to the swimming WHEREFORE, Plaintiffs demand judgment jointly and severally, in an amount in excess Three Thousand Dollars) together with costs provided by law. Count III: against Defendants, of $43,000 (Forty and interest as Violation of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) 19. The averments set forth in paragraphs 1 through 18 are incorporated herein by reference as if fully stated. 20. In conjunction with the execution of the written contract and the construction pool, the Defendants and installation of the aforesaid engaged in unfair and/or deceptive 6 swimming acts or practices with Plaintiffs in that they: a) represented that the aforesaid swimming pool was of a particular standard, quality or grade which it was not for the reasons set forth in more detail in paragraph 6 above; b) failed to comply with the terms of the written guarantee and warranty given to the Plaintiffs at, prior to or after a contract for the purchase of the swimming pool was made; and c) engaged in fraudulent and/or deceptive conduct which created a likelihood of confusion and/or of misunderstanding in that: i) Defendants falsely and/or recklessly represented to Plaintiffs that the swimming pool would be constructed and installed free of defects; ii) the misrepresentations were intentional and/or material to the contract; iii) the fraudulent and material misrepresentations were intended to and did mislead the Plaintiffs into relying on it; iv) the Plaintiffs justifiably relied on the fraudulent and material misrepresentations made by the Defendants; and 7 v) the damages incurred by the Plaintiffs were proximately caused by their justifiable reliance on the fraudulent and material misrepresentations made by the Defendants. 21. Defendants have violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa.C.S. § 201-1 et seq., as alleged above. 22. As a direct and proximate result of the Defendants' violation of the UTPCPL, the Plaintiffs have sustained damages in excess of $24,000 (Twenty Four Thousand Dollars) and will sustain further damages in excess of $19,000 in order to repair and remedy the aforesaid defects to the swimming pool. WHEREFORE, Plaintiffs demand judgment against Defendants, jointly and severally, in an amount in excess of $43,000 (Forty Three Thousand Dollars); the imposition of treble damages and reasonable attorney fees under the UTPCPL, 73 Pa.C.S. § 201-9.2(a); and costs and interest as provided by law. Count IV: Breach of ExDress and/or ImDlied Warranty of Merchantability 23. The averments set forth in paragraphs 1 through 22 are incorporated herein by reference as if fully stated. 24. In executing the written contract with the Plaintiffs, the Defendants expressly and/or impliedly warranted that the aforesaid swimming pool would be of merchantable quality, that it 8 would conform to the contract, that it could pass without objection in the trade under the contract description, and that it was fit for the purpose intended, that is, for use as a swimming pool. 25. As alleged above in paragraph 6, which averments are incorporated herein by reference, the aforesaid swimming pool was not of merchantable quality, did not conform to the contract, could not pass without objection in the trade under the contract description, and was not fit for the purpose intended, that is, for use as a swimming pool. 26. Defendants breached the express and/or implied warranty of merchantability as to the aforesaid swimming pool for the reasons alleged above. 27. As a direct and proximate result of the breach of the express and/or implied warranty of merchantability by Defendants, the Plaintiffs have sustained damages in excess of $24,000 (Twenty Four Thousand Dollars) and will sustain further damages in excess of $19,000 in order to repair and remedy the aforesaid defects to the swimming pool. WHEREFORE, Plaintiffs demand judgment against Defendants, jointly and severally, in an amount in excess of $43,000 (Forty Three Thousand Dollars) together with costs and interest as provided by law. RESPECTFULLY SUBMITTED: ayd ~ ~ Victoria ~pa~d 209 Meadow Lane Mechanicsburg, PA 1~055 Phone: (717) 766-6822 DATED: September ~, 2002. 10 VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties at 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. DATED: September ~U~ 2002, 11 I verify that are true belief. to the VERIFICATION the statements made in the foregoing document and correct to the best of my knowledge, information and I understand that false statements herein are made subject penalties at 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. DATED: September ~7 , 2002. 12 " 61 UA B UE POOLS 9~"boubling Gap Rd. Newville, PA 17241 (7171 776-4593 SWIMMING POOL ~T~ a~rees to purch~s~ and 8~[[~ a~rees lo sell the lollowin~ swi~min~ ~ool m~t~rJ~ls, equipment ~d accessories upo~ the t~rms and conditions stated herein. PRICE CLASS* ~ DE~H ACCESSORIES cOMpLETIoN ...... INsTALLATIoN INSTALLATION SITE addiii0nal concrete, ii desired will be billed at sUBTOTAL per sq. foot ~, : KIT DELIVERY ........... : ~ / ,~., ' / ' ~NO INSTALLATION YER MS ~_ ~,;,.~,~ ~3~,,~t~[~epomt- On Signing ~,~ B~dance ~ On Deliv~ BUYER, ~u .~ ,- ~ CQNOl~IONS OF TH S AGREEMENT IN~UDIN~ JRES~ON~HE R~ERSE~DE. · ~, · C~SS I - Thes~Po~ls areflesig~ed t0 ce~fa~m~i~ [~N;S~pj..~odf~.~ti~ff~l~ffe~ J~nUa ' 1~1972 Dvn 'e ~ ' be used ~ith the~ poo~s. .~ ~ ~ g q p~ent cannot · c~ss' jl=a~d'~VE - These pools are designed to C°nf~~ with N.S.~L C~flgurat on n eff~,~a 1 1 · . .. equlpmentv~{~; . . ~, . ~ . . 972, for use with d~vlng **NOTE: Buyer is responsible for filling of the pool which includes watbr and~Water:~jNery. , Buyer is responsible for electrical hook up of light and pump. If We stdke sub.surface water, rock; or's~rlkhole; buyer is resPonSible for Cast Of labor and ~at~;ials inv01v&d in cOntrollir~g the water, for removal of rock, for repa r, or moving,o[ po °l site. ~ , , , LINER PAq-FERN ~ *'~ ~ ~D!~N~AIL~S AND COND TONS OFTHIS ~ AGREEMENT I. SELLER'S OBLIGATION: A. The Seller agrees that'ne ~hall corffplatSly install the swimming pco~ materials, equipment and accessoile~ according to this contract. The fol!~wing shall constitute complete installation: excavation of pool site, remove excess fill erect panels supply anc~l~i! ~;q~/~.,?~,~[e[~.~ connect all plumbing lines from pool to filter, esse}['nble pump vanes and connect the filte~il~i; l~?{~.~ b~l~l~g, b~a'(~l~ tlli~and ~d~h~gm'~d~e w'~h~ fobr ~et a~ou~d ~o); t~t pool water for ~ter circulation and skimmer qpemt[on,~n~NI ac~o~pa a~rng to ~a~a ~a~ E~bo~m~ ~ B~!hBuyer requests Se,er to pedo~ a~ilJgna~w8~ and if ~ wi,lng to pedo~ f01~0~ .(1) The Sel~fs actual ~t'of ~bb~ntm~a~; ~[e~als, ~ equipment; (2) The payroll taxes and Insurance on all la~r; 3) Sales ~x on a m~e~a s and equipment; (4) Supewislon; ~5) Twang-five per~nt~for Sellefs over~ead and profit. All monies for additional wo~ ~hall be due and Payable as tnd ~ progresses ~ane~e~fly with ~e other, p~gres~ ~me~s. Addlgonal ~o~ shall i~lude butts ng~llmita~to (a) any modlfl~tio~eqFeetnd by4h~Buyer; (b) r~o~'=r remutlng of ~bsa~ac~ ~lb~ ~"~; ~ ~s ~p~nk~ [q~Db.~'~l S~t~,~uded .le=~l ~re~ulm~as a ~Sult of nonapparent or su~s~ace gm,nd c0~ ~ g~nd ~t~r, ha~ p~n, shale, installation ~ich requires the use of.equipment other than o~lna~ ha~ t~ls and power exca~ Ion equ pmen such a~m~or-~e b~khoes d an~ e e=dca ~rk ex~r~s ~qmplled, including without Ilml~tion any warm~of mere~aDIIl~ or fitness for a pa~lcular pu~ose. Swimming pool mstedals, ~qutpment and accessofles ;,: ~: II. BUYER'S OBLIGATIONS: ' (hemafle~t&ml~,~y~r represents-and,~n~ th~i~h~=ol~ml-r~mhas~nd~ls t~b~u~d~m~l~(~na~i(y Or hoEse~01d p~. agrees,that in whatever manner the collateral shall be~me a~ached to real e~a~it s~lkno~ he--me a figure or pa~ of' r~ e~te but shaft ~nd remain pamonal pmpe~. Buyer shstl not offer ~ sari, transfer, a~ndon or encumber the ~lletem! o~e premls~s to ~lch same ~ay become a~ach~ nor mmo~e~t~e co a em from sa d preml~thou~he prior consent of th .Seller. B. B~YER DEFAULT. Buyer shall~ In default u~n [h~happ~ o[ any~{ the following events,,(a),noncompllance ~or nonpedo~ance 9~any of the Buye¢s obligations or agreements including ~th~t ~ the~f~.~ to pun~uall~ayme~ a~ ~v[~e~ ~}~ln, (b~mls~P[e~ta~on or mis~ In ~ne~ Qn w th his agreement, (c~ sOb~ntlal damage, ~str~0~-~ e~a~mn~-of~.~ col~teral ~r-the pre~e~to~h;~a~ ~b~me a~aSh~the ma~g~f ~h~ bankm~W or i~oNen~ law by or against Buyer, (e) such a change in the condition or affairs, financial 0r othe~se, of the Buyer as in the good faith judgment of the C. SELLER RIG.S & REMEDIES ON B~ER DEFAUL~ Upon d~e~l~a~on to any Other dghts or remedies prodded by law, Seller may exemlse the rights and remedies of a secured pa~ under ~e UnEo~ Commemlal Code, Inciudl~ but not limited to the dgM wEho~ legal p,m~ss to eqter nd p em scs where ~llateml may be fou~ re~ssess same. Should ~e Buyer, p~or to ~mmencement of installa~on or If In~lletiop I~aot included ~en ~d~r to deliver, either ~nce this agreemen~r ~_~ unable for any reason to pe~0~ same, Seller may at his option re~ver from the~dy~r ~ ~u~t~ d~ ~s a~a~ ~ O~a~ed ~s any deposit ~de ~er~N~aiver by the-ael~r~hail~te~ as~a~lv~ of any other or future default. I~ {~event this ag~ement s~i~ ~ ~labe~ ~th, ~n a~omey for col~e~lon~uye~gr~s t~pay alt co~s of ~rlectlon Including mas0nable a~ome~s fees. D~+ ~.~I~IQ~MS & CONDITIONS. It is undemt~ and agreed that ~e te~s and condEIons of this agreement c~m~ ~olely rd, ns~al~tlon shall on y Ep~ly Wh~'i~l~flb~' I~ Ih~iuded; Nb W~i~? ~T~h~ll b~-~ff~tlVe uhress in Writing. "sailer" I~Clude the h~irs, execbt0rs, ad~lnlstm~m,-~om~nd sss gns of those pa~ es f mom than one Buyer ex.utes this agreement, E~JT~e.~r~y~gmes and consen s o on r ~r~ ng he wishes addltlonal work limited to no faul&of the Sellal shy lawn, but not the Seller and by to G. UNAVOIDABLE DELAYS. Buyer a! Seller and shall m _ H. OTHER OBLIGATIONS. Buyer accepts other Acts of God or as a result of any L IN DEMNI~IGATION, Buye and agreem~{~ ' J. the Buyer will p~y L. The Seller's failure to inslet upon strict ) any puncture that mig~'~cc ur due to no fault Of the Seller shall furnish building permit elect w~lto.~ladditi~na.l ~ requlre~[ ele~ri~a B;~ ~SI~ PREPA~ON & RESTORAT ON. Buyer shall be responsible for site preparation ~lncluding emova anWor pmte~ion of tees or other vegetation remova~ o~ p~e I]~s~r ~er Improvements ~ffe~e~,~y the In~alletlon and shall be aspens b e for any landscap ng or restomilon of he gr~nds except as e~ress y C. ACCESS TO WORK AREA. Buyer shall furnish access to ~ area and a~the r~ue~ of the Seller shall o~ln pe~iss on from ownem of adjacent propa~les for ent~ u~n their propeffies in ~nne~ion with Inetaliat~Q~,Buyer a~pt~msponsl~lIW fo~r~s or damage to existing dflve~ys, lawns, fiowem, shrubs, trees 0r other a~y~erre~d~l~w~ne~byzonlng deedoro~l~a;Buyerals~epres~d~{~ hat~ eo · oft ~ re whch E S B~ - ....... ' '~< ~ [ ' P ~' at°nlst°bema~e' electil~l or telephone ~bles. Buyer accepts responslblll~ for claims or ~magq~ re'on of t~ese i ems be ng encountered n n~a a on _ earn of soil slippage, su~ce;~ ~r ~n-off f re flo~ mia sto~, ea~hquake or or damage by fearn of agreement; ,f the Sellers [Igl~ts or remedies, or a ;~i'~t ~r~wdt~r Which ar~ n~t included herein. The Seller's fa ure to exercise any righ s nd~jlL~lEJir,~E(~a~)y~ctlbn..~tn~'lttl~[.~r[~S I~'~b~ ~b~ ~ ~therrigh~orb[~ghesofa~ikeor,~ere~nd~r o~l~ ~b e ~ u~e~sspe~EIcl adc n n a~ · b pa~ re'king su~ .,ver. ~hl, agreement ca,no~ ~ c~ange~x~p{'~e ~y authoriznd representatives of both pa,les in wilting. N. Pepodlc payments and/or flnst payments as outlined on the front side of this ~ntm~ are to be paid when. in the opinion Of ~e Se ~,'~ W~ S f ~shed~t h~ $~ Sel.ler ~ ~t (esponsible for d~ge m ~oL..o~;~hy stains oB dec~ ~ving bGa~s pa los s eps. a~rs ~ n~as~ ~ ~hlldred, p~t~ ~o~s V. The 10% deposit paid by buyer is not refundable oRc~t ~~ ~p~pu m~ased W. The ~ncre e deck s not a pa~ of pool and is fi~{~u~n &e~nd&~ ~n~:~ rcumst~n~s ~gainst cracking Or seEH~. Footp~d~tS or o~her ma~ ~used by pe~ or SHERIFF'S RETURN - CASE NO: 2002-04668 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUI~BERLAND SPAYD JOHN ET AL VS AQUA BLUE POOLS ET AL REGULAR DAWN KELL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RUDA JOSEPH P the DEPENDANT , at 1421:00 HOURS, at 945 DOUBLING GAP ROAD NEWVILLE, PA 17241 on the 2nd day of October 2002 by handing to TERRI RUDA a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 25~, day of 0~ ~'~3. A.D. ! t Prothonotar~ F ! So Answers: R. Thomas Kline 10/17/2002 JOHN SPAYD By: Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-04668 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SPAYD JOHN ET AL VS AQUA BLUE POOLS ET AL DAWN KELL Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RUDA TERRI the DEFENDANT at 1421:00 HOURS, on the 2nd day of October , 2002 at 945 DOUBLING GAP ROAD NEWVILLE, PA 17241 TERRI RUDA a true and attested copy of by handing to COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff,s Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this ~3.~( day of ~cr~ ~o ~ A.D. · 'Prothonotary' ' ' So Answers: R. Thomas Kline 10/17/2002 JOHN SPAYD By: Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-04668 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SPAYD JOHN ET AL VS AQUA BLUE POOLS ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon AQUA BLUE POOLS the DEFENDANT at 1724:00 HOURS, at 945 DOUBLING GAP ROAD NEWVILLE, PA 17241 on the 15th day of October 2002 by handing to TERRI RUDA a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 17 94 00 10 00 00 45 94 Sworn and Subscribed to before me this ~3/~- day of ~r~ ~Oo~ A.D. ~P~othonotary ~ ~ ~ So Answers: R. Thomas Kline 10/17/2002 JOHNBy:SPAYD ../~~ Deputy Sheriff JOHN SPAYD and VICTORIA SPAYD HUSBAND AND WIFE Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND AND WIFE AND INDIVIDUALLY Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 02-4668 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION REGARDING REMOVAL OF AN UNNECESSARY PARTY TO THE HONORABLE, THE JUDGES OF SAID COURT: AND NOW, comes the Petitioner, Terri Ruda, by her attorney, and files the within Petition regarding Removal of an Unnecessary Party. 1. The Petitioner is Terri Ruda, an adult individual residing at 945 Doubling Gap Road, Newville, Pennsylvania. 2. This Civil Action is based upon a contract between Spayd, the Plaintiffs, and Aqua Blue Pools and Joseph Ruda, one of the Defendants herein. 3. The Petitioner, Terri Ruda, is not a party to the said contract, and does not have an ownership interest in Aqua Blue Pools. There is no privy of contract between herself and Spayd. See Exhibit A. WHEREFORE, your Petitioner, Terri Ruda, respectfully requests that this court drop her as a party to this action. DATE: November 12, 2002 RESPECTFULLy SUBMITTED: 5~2OsrnES M. BACH, ESQUIRE ey I.D. No. 18727 · Sporting Hill Road Mechanicsburg, pA 17050 (717) 73%2033 Attorney for Terri Ruda AQUA BLUE POOLS 9~Doubling Gap Rd. Newville, PA 17241 CONTRACT OF SALE- RESIDENTIAL (717) 776-4593 SWIMMING POOL AND ACCESSORIES ~i~DATE · n , 7//'f 190__ the terms and conditions ADDRESS O PHONE ~I~MBER BUYER agrees to pUrsCtha?eS(~enrdeinS. ELLER agrees to sell the following swimming pool materials, equipment and accessories upon · PRICE ( o CLASS* '.~ ~ DEPTH --~' / -j'- ~ , FILTER ~~~3=zL~ (=~/,.. . ACCESSORIES ~r.- Floc~h~,,-,_L L~OO.oo additional concrete, per sq. foot ................................................................. ~ ......... ~... 40Y~ WALL P~CEMENT 40oN~DEPOS T COMPL~TON ..................... ~"'"C"5 ................. - ................. _ INSTALLATION {IS~ (ISNOTI INCLUDED gA~v~Tt~ ~: - ~ _ U [, , O~u ~ ~ ~alance - OnDelive~ auv=. AC..OWL~=~S ~ nm n~= ~=AU AND UNDERSYANDS THE TERMS AND CONDITIONS OF THIS AGREEME~ INCLUDING THOSE WHICH FOLLOW THE SIGNATURES ON ~E REVERSE SIDE. *C~SS I - These pools are designed to conform with the N.S.RI. configuration in effect Janua~ 1, 1972. Diving equipment cannot be used with these pools. *C~SS II and ABOVE - These pools are designed to confo~ with N.S. RI. configuration in eff~t Janua~ 1, 1972, for use with diving equipment. B~ER **NOTE: Buyer is responsible for filling of the pool which includes water and water deliver. Buyer is respo~ible for electrical hook up of light and pump. If we strike sub-su~ace water, rock, or sink hole, buyer is responsible for cost of labor and mate~als involved in controlling the water, for removal of rock, for repair or moving of pool site. LINER PATrERN EXHIBIT A JOHN SPAYD AND VICTORIA SPAYD, HUSBAND AND WIFE, Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND AND WIFE AND INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLkND COUNTY, PENNSYLVANIA No. 02-4668 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OFAPPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on, of the Plaintiffs in the above-captioned matter. BY: ~ William C. Costopoulos, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS DATED: November 19, 2002. CERTIFICATE OF SERVICE I, William C. Costopoulos, Esquire, attorney for Plaintiffs, do hereby certify that a true and correct copy of this document was served upon counsel for the Defendants by placing same in the United States Mail, first class postage prepaid, on the below date and addressed as follows: James Bach, Esquire 352 South Sporting Hill Rd. Mechanicsburg, PA 17050 BY: Williaim C. Costopoulos, Esquire DATED: November 19, 2002. JOHN SPAYD AND VICTORIA SPAYD, HUSBAND AND WIFE, Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND AND WIFE AND INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBER~D COUNTY, PENNSYLVANIA No. 02-~i668 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO ]PETITION REGARDING 'I'H3~ REMOVAL OF AN UNNECESSARY PARTY AND NOW come the Plaintiffs, John Spayd and Victoria Spayd, husband and wife, by and through their attorney, William C. Costopoulos, Esquire, and respectfully file the following response: 1. Admitted. 2. Admitted in part; denied in part. It is admitted that the underlying civil action is based upon a contract between John Spayd, on behalf of himself and his wife, and Aqua Blue Pools, by and through Joseph S. Ruda, an agent/servant/employee/partner and/or owner. It is specifically denied that Terri Ruda is not a party to the contract. To the contrary, as alleged in the complaint, it is believed and therefore averred that Terri Ruda, the wife of Joseph S. Ruda, is an owner and/or operator of Aqua Blue Pools together with her husband. By way of further answer, the Plaintiffs made two payments pursuant to their contract with the Defend[ants by checks directly payable to Terri Ruda, including the downpayment by check dated 1 July 14, 2002 in the amount of One Thousand Nine Hundred Dollars ($1,900) and another check dated July i7, 2002 in the amount of Seven Thousand Six Hundred Dollars ($7,600). Terri Ruda personally endorsed both checks. See exhibit attached. Because Terri Ruda is a party to the above contract and has an ownership interest in Aqua Blue Pools, as indicated by her acceptance of two checks totalling Nine Thousand Five Hundred Dollars ($9,500) on the contract, she is a necessary party to this action. 3. Denied. See answer to paragraph 2 above. WHEREFORE, Plaintiffs respectfully ask that the Court deny the Defendant's petition and direi~ to file a response to the complaint forthwith. LYSU~BMITTED: William C. Costopoulos, Esquire COSTOPOULOS~, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Phone: (71'7) 761-2121 ATTORNEY FOR PLAINTIFFS DATED: November 19, 2002. CERTIFICATE OF SERVICE I, William C. Costopoulos, Esquire, attorney for Plaintiffs, do hereby certify that a true and correct copy of this document was served upon counsel for the Defendants by placing same in the United States Mail, first class postage prepaid, on the below date and addressed as follows: James Bach, Esquire 352 South Sporting Hill Rd. Mechanicsburg, PA 17050 BY: William C. Costopoulos, Esquire DATED: November 19, 2002. /~Ddd, n JOHN SPAYD AND VICTORIA SPAYD, HUSBAND AND WIFE Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND AND WIFE AND INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLANI-) COUNTY, PENNSYLVANIA No.: 02-4668 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of the Defendant, Terri Ruda in the above-captioned matter. flAMESM. BAC , q. rATTORNEY AT LAW 352 S. SPORTING HILL ROAD MECHANICSBURG, PA 17050 717-737-2033 Supreme Court I.D. #: 18727 DATED: November 20, 2002 JOHN SPAYD and VICTORIA SPAYD HUSBAND AND WIFE, Plaintiffs Vo AQUA BLUE POOLS and JOSEPH S. RUDA and TERRI L. RUDA, HUSBAND AND WIFE AND INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-4668 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED pRELIMINARY OBJECTION AND NOW comes the Defendant, Terri L. Ruda, individually, and files the within Preliminary Objection: 1. Motion to Strike Complaint as to Terri L. Ruda - This complaint joins Terri L. Ruda, the estranged wife of Joseph S. Ruda to a complaint regarding the installation of a swimming pool. The company that installed the swimming pool is Aqua Blue Pools. 2. Terri L. Ruda, individually, does not have an ownership interest in Aqua Blue Pools. There is no privity of contract between herself and Spayd. (See Exhibit A) 3. Terri L. Ruda acknowledges that two checks for the project at issue were made payable to her. The checks were made payable to her, on these occasions, because Joseph S. Ruda had misplaced his drivers license. In order to accommodate the cashing of these checks, Spayd agreed to make the checks payable to Terri L. Ruda. 4. The only reason that Spayd made the checks payable to Terri L. Ruda was to accommodate Joseph S. Ruda and make it easier for him and possible for him to cash these checks. Terri L. Ruda does not have an ownership interest in Aqua Blue Pools, nor did she ever have an ownership interest in Aqua Blue Pools. The contract entered into between Spayd and Aqua Blue Pools is exclusively between Plaintiff, Spayd, and Defendant, Aqua Blue Pools and Joseph S. Ruda. Terri L. Ruda believes she should be removed as an unnecessary party to this lawsuit. (See Exhibit B). WHEREFORE, Tern L. Ruda requests that the complaint against her be dismissed. DATE: January29, 2003 BULL Y SUB~ AC~., ESQUIRE ~/352 S. Sport/ ~(~omey I.D~n~ill~2o7ad Mechanicsburg, PA 17050 (717) 737-2033 CONTRACT OF SALE - RESIDENTIAL SWIMMING POOL AND ACCESSORIES DATE AQUA BLUE POOLS 9?~3oubling Gap Rd. Newville, PA 17241 (717) 776-4593 '7 / / q ~0__~ NAME - - ADDRESS- PHONE NUM~-''.~, NAME ' ADDRESS 0 PHO BUYER agrees to purchase and SELLER agrees to sell the following swimming pool materials, equipment and accessories upon the term~ and conditions stated herein. CLASS' ~ DEPTH PRICE ACCESSORIES 35,00 JOHN SPAYD and VICTORIA SPAYD HUSBAND AND WIFE Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND AND WIFE AND INDIVIDUALLY Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 02-4668 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION REGARDING REMOVAL OF AN UNNECESSARY PARTY TO THE HONORABLE, THE JUDGES OF SAID COURT: . -- , AND NOW, comes the Petitioner, Terri Ruda, by her attorney, and files the within"'Pctition regarding Removal of an Unnecessary Party. 1. The Petitioner is Terri Ruda, an adult individual residing at 945 Doubling Gap Roadj Newville, Pennsylvania. 2. This Civil Action is based upon a contract between Spayd, the Plaintiffs, and Aqua Blue Pools and Joseph Ruda, one of the Defendants herein. 3. The Petitioner, Terri Ruda, is not a party to the said contract, and does not have an ownership interest in Aqua Blue Pools. There is no privy of contract between herself and Spay& See Exhibit A. WHEREFORE, your Petitioner, Ten'i Ruda, respectfully requests that this court drop her as a party to this action. DATE: November 12, 2002 RESPECTFULLY SUBMITTED: E~S M. BACH, ESQUIRE /3/ft°mey I'D'/~352 S. Sportin~°i~Ii~7R2o7ad Mechanicsburg, PA 17050 (717) 737-2033 Attorney for Terd Ruda EXHIBIT B JOHN SPAYD AND VICTORIA SPAYD, HUSBAND AND WIFE, Plaintiffs AQUA BLUE POOLS AND JOSEPH S. RUDA AND TERRI RUDA, HUSBAND AND WIFE AND INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS CUMBERL~ID COUNTY, PENNSYLVANIA No. 02-4668 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' PRAECIPE TO DISCONTINI~ TO THE PROTHONOTARY: On behalf of the Plaintiffs, John Spayd and Victoria Spayd, husband and wife, kindly discontinue the cause of action in the above-captioned matter. BY: llam d Costopoulos, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS DATED: August 1, 2003. CERTIFICATE OF SERVICE I, William C. Costopoulos, Esquire, attorney for Plaintiffs, do hereby certify that a true and correct copy of this document was served upon counsel for Defendant, Terri Ruda, and upon Defendant Joseph S. Ruda, pro se, by placing same in the United States Mail, first class postage prepaid, on the below date and addressed as follows: James Bach, Esquire 352 South Sporting Hill Rd. Mechanicsburg, PA 17050 Joseph S. Ruda and Acqua Blue Pools 945 Doubling Gap Road Newville, PA 17241 BY: William C. Costopoulos, Esquire DATED: August 1, 2003.