HomeMy WebLinkAbout96-02178
.,
DAVID A. SZlWCZAK, ESQUIRE
IfROtHOflIOTAIW
m~e J'uperiur QIuurt of Jetltll'llJlounin
OOffire of tile 1I.Irl1t1(llnotltru
FULTON BUILDING
9TH FLOOR
200 NORTH THIRD STREET
HARRISBURG, PENNSVLVANIA 17101
11m na.12D4
PATRICIA A WHITTAKER
c;.MII~ CLIAK
~
DATE: 2/5/98
TO: PROTlIONOTARY OFFICE/CUMBERLAND COUNTY
FROM: Prothonotary' s Oflice . Harrisburg District
RE: ANGIE L CARBAUGII V OAKWOOD HOMES.INC
NO: 688 IIBG 97
LlC # 96-2178
The record lor the above-captioned case is being rrturned for compliance with the
following Pa, Rules of Appellate Procedure:
o PA, RAP. 1925(a) - Opinion
o PA. RAP, 1931-.Tobcproperlyasscmbled
o "Exhibits Only" Returned - Shall be Requested by the Court. if necessary
(gI Other -, OUR OFFICE REMITTED TillS RACK TO LOWER COURT
1/13/98, APPEAL QUASHED 12/05/97.
PW: mbp
Enclosed: I PART
PNiE~
15
38 - 41
43 - 44
46 - 257
258 - 272
273 - 280
281-282
~
""
36
April 28, 1997, Order of Court, fUed.
/\ND NCIr/, this 28th day of April, 1997, a continu"tion of the non;ury tria
in this matter is SClIEDULED for Wednesday, .June U, 1.997, at 9:00 a.m.. \n
CourtrCJa11 No.5, Cumberl.and County Courthouse, Carl isle, Pennsylval'lia.
By the Court, J. Wesley Ol.er, ,Jr., .J.
June 12, 1997, Order of Court, filed.
AND NaoI, this 12th day of .Junc, 19'J7, ul.xm consideriltion of Plaint.iff's
canplaint and of Defendant's counterclaim, and fol1owinq a nonjury trial, th
court finds in favor of Plaintiff Angie L. Carbauqh and against Defendant
Oakwood Horne, Inc., in the ,UWlunt of $/,500.00 for' all1elioriltion of septic
system problems on PlainUff's property, with interest sec. leg. from
.June 1, 1994.
By the Court, J. Wesley (llcr, ,Jr., .J.
June 13, 1997, Order of Court, fUed. In Re: Matter Taken Under Mvisement.
AND NOlI, this 11th day of ,June, 1997, upon consideration of the Plaintiff
canplaint in the ahove-captioned mat.l:er and of the Defendant's countercl,1ill1
and fallowing testimony received over the course of two days in a nonjury
trial, the record is declared closed, and the matter is taken under adviserne
By the Court, .J. Wesley Oler, .Jr., ,),
July 14, 1997, Notice of Appeal and Order for Transcript, filed.
Notice is hereby given that Oakwood Homes, Inc., defendant ahove-named,
hereby appeals to the Superior CalirI. of Pennsylvania from the order entered
in this matter on the 12th day of .June 1997. This order has been entered in
the docket as evidenced by the atlcached copy of the docket entry.
A Notice of Appeal having been filed in this matter, the official court
rerorter is hereby ordered to prcduce, certify and file the transcript in
this matter in conformity with RlIle 197/ of the Pennsylvania Rules of
Appellate Procedure.
By: Michael D. Hess, Esq.. Attorney for Defendant
July 16, 1997, Order of Court, filed.
AND NCW, this 16th day of .July, 1997, uJX1n consideration of the Notice of
Appeal. filed in the ahove-capti.oned mat.ter, Appellant is DIRECTED, pursuant
. to Pa, R.A.P. 1925(b), to file of record in the Court and to serve upon the
undersignediucige a ('oncise Statement of Matters Canplained of on Appeal no
later than 14 days after entry of th i.s Order.
By the Court, J. Wesley Oler, .Jr., .J.
Aug. 1, 1997, Superior Court of Pennsylvania Not.ice of Appeal Docketing to
No. 688 HBG 1997, filed.
Aug. 12, 1997, Order of Court, f i 1 ed.
AND NCW, t.his 11th day of August, 1997, pursuant to Pennsylvania Rule of
Appellate Procedure I.9U(a) and Pennsylvania Rule of .Judicial Administration
5000.6, the transcript of the trial held i.n ttle above mat.ter on AprH 23,
1997, and ,June 11, 1997, shall he prepared after the stenographer has obtain
a derosit of one-half of the estimated ctlilrge, the amount of which she shall.
forthwith notify Appel Lant, Oakwood Homes, Inc.
By the Court, .J. Wes Ley 0 I er, ,Jr., .J.
Aug. 25, 1997, Transcript of Procf,lerJings, Nonjllry Trial, filed.
Oct. 20, 199"1, Opinion Pursuant to PA. R.A. p. 197.5, filed.
Misc. and Exhibits
9~ii~~I~~ FOR ENTRY "OR ,IIHlGMENT ON THP ITPRDICT AND tHE VERDICT
AND JUDGMENT ENTERED. NOTICE MAILED '1'0 DEFENDANT.
37
42
45
PNJE 1'1>.
1 -
14 -
16 -
24 -
29 -
.
.
Amon!l the: Rc\.:'"nb und I)ron'cllin~!>. f..'nrnlkd in the court of Common I)lc:u!\ in and for the
clIunly ot .._....Sumber1J1nd___''.... in Ih.: ClImmll"wcullh lit !'cnnsylslln;"
No. 688 HBG 1997
III Nil. _____96-211.!!. Cl.vi1.. Term.__. I' I" I Ilh I II"
"01, 7 ..____ IS clIn "incl C U O",IIl~:
CO!,y OF ..__,,____..._M>p.ear~_nc~.___..___... 1l0CKFT FNrRY
ANGIE I,. CARBAUGH
VS.
OAKWOOD HOMES. INC.
13 lIpril 24, 1996. Conplainl, filed.
15 May 8, 1996, Sheriff's Return of Service, filed.
23 June 6, 1996, Answer of Defendant t.o the C011pJaJ.nl of Plaint.iff, tEed.
27 JWle 7, 1996, Answer of the Plaintiff tC' [)o,fendantc's New MaUer and
Counterclaim, fEed.
28 June 21, 1996, Praecipe for Listin~ Case for Tri,tl, fi.lc..od.
30 Aug. 30, 1996, Pretricd Cor fererce , filed.
By the Court, .1. Wesley Oler, .)t., .J.
31 Aug. 30. 1996, Order ef Court, filed.
AND NaoI, this 28th d<lY of Auquot, 19'16, pursuilnl to an <1greement
of counse', the nonjury tr::<'l in this case is schedu~m for rriday,
Deccrnher 13, 1996, at 1::10 p.m., and tre t1"i,,1 sha~J consume (me-half day.
By rhe Court., .J. Wesl.t~y Oler, .Jr., J.
32 Dec. 16. 1996, Order of Court, filed.
Dec. 16. 1996. Orner of Court, filed.
AND Nai, this 16th day of December, .1996, ttle nonjury ~.rial pn"inUE,ly
scheduled in this matter for December U, .1996, is RE~;Q-jEDULE[) to Monday,
March 3, 1997, al 1:30 p.m., in Cnurtnxm No.5, CumlJel-lancl County Cnurthous
Carlisle, Pennsylvania.
By the Court, J. Wesley Clef, ..Jr., .1.
33 March 4, 1997. Order of Court, filed.
AND Nai, this 3rd day ('f M<1rch, 1997, upon <1<freement of counsel, the non-
jury a"Ual previously scheduled in I:Il!.>1 mil! ,:el fc.r ;-.jareh 3, 19<)7, is
RESQ1EDULED to WednesdilY, April. 23, 1997, at \:30 p.m., in C'ourtrorrn No.5,
CUITlberland County Courthouse, C,Jrli.sle, ppnn~y.1 Vrln ia.
By the COLlrt, J. Wes1.ey 01>21", .Jr., .1.
34 lIpri1 28. 1997, On1e1:' of COLlr', filed. Tn Re: Tria] 'm Cr.n'-inue
AND Nai, this 23rd dilY of April, 19Q7, upcn consideration of the Plain-
tiff's cc..mplain',: in the ubove-Ci-ipt;:\lled mdt1er ant1 the Defendant's counter-
claim, and following dn ini t: ia] dd'l nf hedrinq, ane) the case not having been
canpleted, the record s<1hll rm.nn open, and "'1uns",1 ar'" requested to (,entac
the Court's secretary for purroses of ".'heculincj a final half day of trial.
At the time of adjournment of I:l1e t.r1.dl "" I:hi" dill'e, Plaintiff had c(:mp1e'e
her case-tn-chief, ':he Defendant was presenl inq ; :"," c<1se-in-dlief, Ule
Defendant's counsel was conduct ing a dlrect examination of i:'efendant's pres-
ident. As of Ule time of adjournment, Plai.ntiff's Exhihits 1, 2, 3, 4, 5,
6, 7, 8 and 9 had been i.dentlfied and arlmitted, ilnt i:'efendant's Exhibit.s, 1.,
2, 3, 4, 'i, 6, 8, 9, to, ll, 12, U, \4 anel 15 had heen identified and ad-
mitted. i:'efendant's Exhihit 7 WilS identified imd withdrawn, imd testimony
re1.ated to i:'efendant's Exhihit 7 is herehy [;tricker!.
By the Court, J. Wesley Ol(!r-, .Jr., ./.
(over)
.
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Thla Con"a". mad. .Illa 14 th
day of
July
'0.'" A."'OVIID
OMI NO. ""-0'"
Scal. _~ennsylvania
County .._c.umberlaI!~__
93
.,19__,
Carlisl~3!!-17013
""liMN ~
USDA.FmHA
Form FmHA 1924,6
(RaY, 2/87)
CONSTRUCTION CONTRACT
by
Anm.J.,~
of
1733 tIcClllre~. Gap Road.
(h."inaftcr nll.d .h. "Owne,"), and Oakwood HQlJJ.~, rnc.
of
.:J)6 \oj. King Street
Lancaster. Pa. 176QJ____
(hneinafcc:r ,.tled thlt . C..,ncr:u:cor").
WITNESSETH ,ha. .he pardes h.."o agr.e as follow"
(A) Th. Can"ac.or will furnish malerials and p..form .h. work for: 992 sq f t spli t level
for .h. considera.ion of Fl.m.BVE_1HOU~AN'p" AN~ 00[100---..:.::=:.:.::. dall... (I u_ 55 .!.q9.9~.9_~__.) ,
in accordanc;:e whh the "General Conditional! shown in this contract and. the speciHc_tiona ;and the Juwinll' iU follows:
11 Construction to be in accordance wi.th the CABO One and Two Family Dwelling Code; :btional
Electric Code for One and Two Family [Mailings; and local codes Ot' ordinance that may apply.
Certified plans and specifications have been furnished and are on file in the FmHA Office.
(B) Th. Con.rac.or will..a" wo,k by __..'[l.l...L 'y' .ll_.. . , 19 ('13 ,.nd wLll ,empl..e
,to. work. by... la.ouary .2.1i....19..9.~----, 19..._ (See p.ngr.ph III ufGen...l ("nditions),
(C) Th. Owner will mu. pay men" .s follow" (Checlt 0 prop" p"ymO"1 c/.,... o"J effe"ivdy xxnnxx 0"' oil of
rh. d.,.,., 'WI "pplicohkJ
o 'oowx.~~~~
~'{ ~~\I4.~lOOOOOO{
III 2, ~ARTIAL I'A YMENTS NOT TO EXCEED 60 PERS:_~_~T of .h. v.lu. of the w.ork in pl.,. (I... ,h, .g;;,.g... af
pr~~oul pay menu) will be made .u inc:ervlls of __...:.'.::::______.__ . The V'Jlue at work in pl.,,!! shall be .1$ "'stimacc:d
by the: 'ontral."Cl.If and ilpprove:d by tile E-'.rmc:n Home Administration. Priur to nU':l.:iVII1~ ""Y patti.1 p..YlHcnt, the
'ontu~tor mwt furnish the owner with.. statement ~howing the (c)Cotl illnOunt owed co O:lt\: for miuer~b .no l.bor
prlJcurcd under'chis conu,,",t and, if requirced by the owner or the F.rnlcu Home AJmillbtration, mU$t "Iw )ubmlt
cviJcm:e dlowing thac previous parti.Oll paymenu were properly applied and thiu chI: current r.i&yment will be properly
.pphelJ.. Upon cllmpletlon of the whole contract and a,c,ept.ncl' of ehe work u requin:J \e:rc:undcr, by the 'Jwnl:r
olnJ the Farmen Homll Administration. anJ compli..n,e by ehe contr.lCCiJr with ",n tltrms ~nJ ,"onditions of thia
'9ncri't, the .unoun~ due the contr;u;:cor wlll be p"jJ.
o
I
I
I
I
,
iDl The items Je:.criblild below (ch. Notice of Requirement for AffU'macive Action '0 Ensure: Equal EmployMent
lJppol\unity ,.qui,..l by. Executiv, Order 11246, the Equal OpPOlluni.y Cl.u,. publi,h.J at 41 CFIt 60.1.4 (.) .nd (b), .nd
the StanJ~rd Flilt!er",l Equal Employment Opportunity Cl)n1Eruction Con~r~'c SpecHh;adons required by Extcmivc Order
11246) ",pply, dutinK che Pdrt'ormanc:e ot this contract, if the contract eX'teJs1l0,OOO (This ~lso includes .ubsequenc loan.
"nJ gr"nu, vt ..:onUacC change orden made durin~ the construction ptrioJ of the origin.-I ";:OIlUol..;:t, which will C;,l,U,': the cOlal
to lJI,ct:cJ I1U,OOO.) to ehe following: (I) All conn..cton or subcanuilctors who hohJ ..ny FcJl:ul or federally aui.n.d
';UlhUlJ,ctioll conu..'t, (2) All gunu, conencts and 10in!S (Jizcl!I.:c, insured, ar .~uar..n(CltJ) I-=c by the'. FmHA, tlnJ (3) All
..;on:tcrUCClon work performed by consuuc;eion I;ontrlu:eors .1nJ subcontractors to, Federal nODl;onsuuccu:U\ CQn&.IM;:Cors and.
lubcontral.:lors if the con:u:ru.c:cion work is nCGcss,\ry In whole or ill put to thlt pl:rform.n~lf ot' " nllncOnSUuct1on. ...:onu~CI or
iubcanulct. The ieems ue applicable to all of .l c;ontrlccllr', or ,ub,ontrJctor', employ!:es whlJ .Irt ilnll~geJ. in "on siu"
..;OI\:.EflJ,r.:tlOll IIhJl!Jirl~ thdSC ....olH'pjl.t.ion cmploycei wh.) work on " nlJn-FeJerJI or non.t'eJeully "ULSUJ 'onuru~tion slu.
rh. ltem'i, however. w111 n'lt pr1 ~rnpc ~c"ce ..nJ 1,)......1 ~1)\lcrnll1el\t re~ulatiCI'lS of the ,ol\HruGtion Industry, .nd will not reline
;r.nrr"'UJrl ...".1 ,l1bl;()ncr.:&....H)n ot th,' oblLK.Ulonl they molY h~...e under other affirmacive l&:tion or .qual opporcunily
fH(J~r..rn~
[~~'-'l ,"~:(;:~~-;;,,'.,tl 1o"'-I'I~. 1.J1.cI~"_~'~.;~_-_'~~. 'cn_..eWI. '.l!~~".~..~~~_~~~n.!!!!.l.!.~~~:.-!~~en" '" ",t. 4"'"_..'.., I". ".., ..",,,.1 ..".ltI....l
--- ----
FmHA 191..6 (Roy. ~"'J
...
.~,
I"" ~...
2
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPI.OYMENT
OPPORTUNITY (E..cutly. Order 112461
Oat. ___..........._... ............._....... City..............................,............................. ,........... DO L R '9,on ............ .... .................,
Galls and Timetables for WOMEN (E.hiblt 0, FmHA Instruction 1901-E)
GO.I (01.)
3.1
5.1
6.9
Tlmetabl'
From 4.1.78 until 3.31.79
From 4.\.79 until 3.31-110
F=rt)m 4.1.80 tJMtll J.31.~1
Trade
All trJde~
All trod.,
All trJd''S
Goals and Timetables fo' ^LL MINORITIES (E.hibit 0, FmHA Instruction 1901.E)
-.---
(1)
E",QUAL OPPORTUNITY CL,AUSE (41 CFR 60-14 (a) and (b))
The contr.1t:tor will not disl:riminau ~gainst arty employee or applic.ant for employment because of race, color. relig;on.
I'" or national origin. The: connactor will take .affirmative action to ensure that applicanu are emp1or,d. and that
tmployeu are treated during employment. without regilrd to their race, color. religion. .sex "r nationa origin. Such
action shall include. but not be limited, to the fonowing: employmllnt, upgrading, demotion or nansferj recruitment or
recruitment advertising: layoff or termination; rues of payor other forms of comiJensation: ;and selection for training.
including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants (or
employment'. notices to be provided by the Farmers Home Aelministf'uion 'fning (orth the provisions of t~is
nondiscrimin;ation clause.
The contractor will, in all solidtation~ or advertisements for emph)yees placed by or on behalf oC the contrateor. state
that all qualified applicanu will receive consideration for employment without reglrd to race, color, religion, suo or
national origin.
The contractor will send to each tabor union or representative of workers with which contnctar has a coUecti"
bargaining agreemenc Of oJther contract I)r understanJing, a no rice. to be provided by the Farmers Home Administration,
.dvising the said labor union or workers' representarive of the contractor's commitment. und,r this apeement ..
requited pUl.u.nt '0 S.ction 301 of E.ecutive Order 11246 o( September 24. 1965. .nd .h.U p..t copl.. of th. nodc.
in <o.n.picuoUl pl.ce. ...~.ble tQ employe.. .nd .ppllc.nu (0' .mployment,
Th. con".c'O' wUl comply wi.h .11 provision. of such E.ecutive Ord<r .nd o( .11 "Ie..nt ,ul... "Sul.tlon., .nd
orders of the Secretary of Labor and of any prior authority which remain in effecc.
The con...cto, will furnilh alllnfo,maclon .nd "pon. required by ,uch Executive Order. rul.., reJU!adon.. .nd o,d....
or pursuant thereto. and will permit leeeSl to books, r.ecords, and accountl by the Farmen Hom. Adminutnrion and
the Secretary of Labor for purposes of investigation to ascertain compliance witt. such rul.., r'pllrion., and orcin..
In the event of the (Onefaeta"s ~non(ompli.ance with the nondiscrimination clauses o( tMs conulct or wh:h any of the
uid ru)", regulations, or orders, this contract may be (a"celled. terminaud or suspended in whol. or in p~rt and the
contractor may b. declared ineligible for funher contract!. in accordance whh procedures authoriud in such Executive
Orelet and $uch other JanctiQn~ may be imposed and remedies invoked as provided -in th. ExecutivI Order or by any
luch rules, regulations. Of order. or as otherwise provided by law.
The r,on~r:actor will include th<< provision1 of paragraphs (1) through (1) in evtry subconuact or purchase ordlf, unit..
ucmpu:d by such rlJle!. regulations, or orders, '0 that stich prov;slons will be bindin! upon elcn luch ,ubcontractor or
vendor. The contractor wilt talce such action as the Farmers Home Administration may dirt~cr al' mean. of .n(ordn.
such provhions. inctudin~ .anc:tion, (or noncompliance: Provided. however. that in .h. l'V.nl the contractor bccom..
invnlved in. or 1\ ~hr~;l~,:nl!(t wl~h, litlK.uion wirh.. subcrJnrr.at:tor or vendof as.. result or ,uch dinetto" by th. Fumer.
J!nmr A,lrninivr..d<]f1, Th~ fonrU.<.:tlJr molY rll1.lIe1t the Unit~d Star,e, ro enter into such litigation to prol"e ch,inter..'
tJr the tJnitf:!d ':irare"
(2)
(3)
(4)
(5)
(6)
(7)
I'mHA 1924.6 (11.... 2/8')
fe',
.i''''
STANDARD FEDERAL EaUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRAr.T
SPECIFICATIONS IE.X. O. 1124(iJ
J
1. A~ uutJ In Ih"1f '1'l!clncatitln8,
;1. "Co",,,t'tJ Ul!ll" rnellll~ the RlJn}lr~rhlclll
un dflCrlbetJ In Ihl! lo!lcHlIlj.,n (ru",
which thil conluct IC'8ulted;
b. "Olte(lo," me.ln5 Director. ornce or
Federal Contr,lel Ct.lmpllancl: Prl)1l13mS,
United StJlC5 Depnllmt'nt ,)( LablH. nr 1m)!
person to \lIhom the l)1lt'clor dclt'IIIIU
authoritY;
c. "rmplllyer h.!cnlific:allon ",uMber"
mlllM the Ftller.]1 SOC111 Sec1Jrilv nllmber
lJ\CIJ on the lmplQyer's Quarled)' Flltter:.1
TJlI Return, U.$ ftt'.1MJtY D,'par1menl
h'lm?..t
J, "MlnorltY"ln..:ludl!"
(i) Otuk (Oil! rer-dR' h.I\llnll "rl~ln\ ill .Iny
lIl' the BI.tck ,\1 rlc.ln rJ(l.Il Hrllur' Jlt" o)f
III.panlc on.ln):
(U) HlIpanlc 1,111 rC"nn5 ,'I \tt'\ican,
Puerto RIc.1n. ('llh,ll1, Cenlrll "r ';oUf"
.\'nerlcnn ,'~ I,n,.'r SPJI'll''' ('llll'lt\." l)f
nrillln. rCllardle".,,, r;l~et;
(Iii) ,\!liln Jnd {",..:tlie hlandtr f.1l! rCr,,,",,
hil'llMlI IHlllln' In ,ln~ IIr lhe 'Hl~'nJI pI'uplt!!!
IIr th~ Far [J.t, S'lljl hca,t Am. Iht Indian
Suhcontlnt"nt. nr !h~ l'nLln~ [dand\): .1nll
(IV) A"leman rl1.j~;)n 'lr "I:I~k.ln Sa rive
(;ul rtnon, h.I\t\l1ll nnllln~ in ,my qf rhe
Iltl~lnnl rel)PI\', ,iI N..,rl!1 Atnl~rlcl .1nd
,nalnl:llnlMlt Itlenlltl.1hlc tribal Jfrlli,lllons
Ihrou~h mcmhl!r\l1lr .1nd p.util':lpalllln or
Cl'lnmunllV jdcnllflc:tllnlll.
2. W11(nl!V~r lilt' (llntractor. ,If In)' Sub.
wnUal.:tur al ,my !ler. 'ubconlrJl:l\ J. por-
lion 1)1 the wnrll It1vnlvlnR any ";lln\frIlClIl}n
'r~de, If ~h.ll1 rh\~h:allr include In ~'.Ich
\Ilbcon'r:tct In "\l',".\ ')!' \Ill,nllll 'he prl}vj-
WinS cr !hr:\c ~re';lfk.1rlnn., J.nl! The :'\IoJllce
which con'Jin~ Iht' Jrplkable !;llJI, (or rni-
nnrll> Jnd kmak r">lrlll:ipa!lon Jnd whIch
I~ \el forth In 'h..: ,olkllatton\ fr'lm \\hh:h
'his I':'Hllrocl ft'.'llted.
J. If lh~ t'pntr.ldor I.~ partl':lpa11n1Z (pur-
'uant II) .II erR 111)-4.5) In J IIllmelown
P!3n aJ'lprovt'tl by 'he U.S. Ot'p3,Iment nf
l.1bor in rhe (ll\ttrc,1 Ul."a either indiVIdually
or lhrou..,:h In J"ocialion, It\ Jfrirmallve
,u;llon 00111311"", pn :ill \\'Nk in fhe PI:1l1
area (indudinl! 1I.t).II~ and 11Ilwl;Jhleq ,hall
b~ in ac~ortbnct" wlfh th;lt Pl.ln fnr thme
trade~ which have unions pOUf1Clp:HinlC in
the Plun. C''''Ir:tC!OrS must he able to dtm-
OluUate IhCU' P:ITIlCir'/3!lOn in and compli-
ance '-"lilt lilt' prnVl~lnl1' of any 'll~h lIome-
rown 1'13n. (.lch C'ln!raclor lJr ~lJl'Clln!r3c'
Illr parliClpatlnq In .In ;Ippro\'t'd PIJn I. indi-
ViduallY reQurred I,) comply with lis obllg'-
lions under Ihe [ro clJu~l!, Jnd 10 make a
~ood (.,ith ffft)ft I,) Jchievll t3eh goal LInder
the PJ.ln in t'Jeh traJe In whICh It hJ~ em-
ployee" 'The ov('r>111 ,:ood faith J'lt'rfntmance
hy other ConlriIClnr, or Sllhconlt3Clors
toward a ~oal In ,111 .1pproved 1'1an does nOI
ueu~e any covered CunlrJctor', ,'r Sub-
contractor's failure Itl takt' ~l)llJ r..Hh
efrorts to achievc Ihe Plan INals and time-
uble\,
4, The (llnItJC"H ~hJlI Inlp!l''"t'nl Ihe
spccine affirm:uh'! actIOn st.lntl.1rlh pro-
Vided In par.l,raphs 7a lhrolJgh p uf the~e
5pl!cincations, The' ,!loah ~et rorth in !I'le
\oltcitation rrorn whIch Ihil cunlrr\..:t r,~aullcd
He npro:~'ed 3' pl!rCen!allt!. "r lhl' lot31
hnuu of emrlo:-"ntCnl :lnd tralnln~ 'J( Inlnor.
Uy In'" rem<1le lJoll/ollon the C"ntractor
.hould r~uon.1bly "'I' 3ble 10 3chl'~VC' In each
conslluctlon trJ..1l! In which It 11;1\ '!mplovee\
In Ihf\ ctlvl'rr.d ITI',I. flu! CI)f)lIJclo( "
c'lpecteu III m;lkt' ~\JIHla.l1li3Ih Ilnlf'Hlll pro-
~reu tt)w;uo1 II' ~nJI. In '!.I.:h LI.l!! ,lurHl,'
lhe pertntt 'pn;IO,','
S, Nt!lther thl! rfl)VI~ll(n\ 01 Ill" Cl)ill!.:tIVI'
hllrlainlnK a~r"t!l"l!nl. nor th~ !Jlhm~ hy .1
UMllln WIth whom lhe CoJnlrJ~IOr has ;a cui.
le~tlve hllrg:llll\n~ lB,e.ement, 10 rrfer either
mlnllUlln or Wtlmen ~h.1.l1 l!\cu,e the Con-
Hactur', "bUIlUlonl under the!\c speclnc.,-
!luns, ['tteeU!lvtl Ordtlr II ~"h. or Ihe rc.ula-
Uun, promulllaled puuuanl rhcrelo.
h. In orller for Ihe nonwtH"inl lr3inlng
hOll!' of ..pprenllces anll IninC'C's 10 be
counted In lTlf'el1n~ Ihe goals, 5udt appren-
lIc.:e, Jnll rr31nees musl be I!mploy~d by the
('1)ntr,lclor lIurlng Ihe tUlnlMU period, and
lhe (,mIrJctllf must Inve malle :t commit.
ment III employ lhl" J!'prenllcc. .1nd tralnen
at the wmpletion III tht'I' tr,uning, .ub.
Jl!ct 10 Ihe .1vJllahllHy "f emploYI11.ent
,'prnIUl\llle,. TrJincl" mu~1 hc lrainell r"tll~II'
~Inl 1\) !ralnlng ploltrams JPPlovr,J l)y tht:
U,S, U.eNrtment of L.bor.
7 Thr ContraCI!)r ,hall lolkt ",eell1c amr-
mallVl!ldltlM. 10 enmre l!qual ~mploynu~nl
llf'p'Htllnlly The n~luallon 'II' lhe Conrr,lc'
lor. compUan,e with lhl!~e .peelliCl1t10nS
dlall be l)J~ed upon Its ~Ifort 10 Jchieve
ma'ttlmum rt'~'JllS Irom In .leU!)n,. The el)l1-
tractnr ~Iull documenl the\c trrnrts r'Jlly,
.111,1 \hall lmplrment JITumaUH! actton Hep5
.11 1'!.1~1 J\ (''ttl':nuve.u Ihe follnwlnq:
J. Emure Jnd malnlOli" ;I worklnll f!nVlrOrl'
men! fret! of har"~'lllenl. InllmidJilon. Jllll
';1l~rl:IIJn al .ill ,lIt" anJ In ,IU rJcllille, .11
which Ihl' (onIUelt'r', employce. ;ue J.\51Itnell
10 ..",ork. The Conlnclar, wh'!!e p()~slole,
Will am~n two or more WQITlt1n 10 ~aeh
("nslrU(llOl1 rHole'IS. The C,)ntr.1clor ~hall
~f'Il!Cllk:lI1~' t'n~ure that aU forrmen, mper.
Intendl"nf~. and ,}th!!r on-\lte ~upervl~nry
per\onnel .1ft: aware 'If .1n..1 carry 'IUt the
(1)"tlaC",,', nhll12ation to maintain 'lIch a
wll/king ,!nviltlnment, with ,pecUlr. atten.
lion hI mmollly or rl!male Indi\'lduah work.
Inll al ~uch IIle\ or in ~u(h raclhllr~.,
b. [,I.1bli\h and maIMt:un J current lb.t of
mlllorlly and female fecrullment source"
provIde Wrlltl!n notil1catlon l(t 111lnorlty Jnd
fl:male recruilment ,ources Jnd 10 commu-
nlly llr~:1njzalions when the Contractor or
it, unlon~ ha'le emplaymenl oppt1rIUnilie,
JVJIJahle, .lnd m.1inlain ,1 rccord or Ihe orM3-
niZ,1110n'" r~~I"C)nses.
c. :\hmLlln a current rile 01' th'~ nalne"
JJdrt\\cs ,1nd Itll!phone numbers or e::lch
mlllorlly and female l)fr.thlf'\lr~et applicant
Jnd mlllorlty or remJlc rererral rtam a
llnlon, J recruitment ,OUfCC or ~ommunlty
Or~3nl1.;JllQn and of wJut al.:tlon wa, taken-
w;lh re~pect III eJch ,uch IIldivrt.lu:u. Ir \uch
indiv!dual W3~ sent to the unit:'n turln. hall
r,lr referr3J Jnd w:u not referred ba(.k to the
Ctlntnctor hy the union or, If r(ffllled. not
~mployed hy the Conu3ctor, this shnU be
documl!nled in lhe Ille with the rC;lIon
Ih~rl!fot, JIOnK with whatever adJitional
Jcriuns Ihe ('onIU(IOr may have IUen.
d. Ptovide Immediate 'Nrllten noti.flc:llion
to th~ Dirllctor wht'n the unions or unions
wilh which Ihe Contractor hl~ :I collecftve
tlaf!%Jinlng Jtueement has nllt referre!! to
lh.e l'ontraclor a mlnonty pl!rlon ot w.)man
,ent by the Conlractor, or wheN Ihe Con-
tractor has other lnformatlon Ihat Ihe
union feftruJ procen has impfd,d Ihe Con-
tractor', efforts to mettllU obIi1f3tion,.
I.!. De\elop nn'lhe.jllb tr:Jlnlnll opportunl!ll!i
~1Mdior rnrllCl('all! m trJ.1nl'lM prOll:rams
for !he JNa which e'pre!\.d)l include mU1l,Jr.
Uil!s "nd women, includlnq UPlill:1dinll pro-
~rJI'" Jnd .1pprenlICt~hlp and !r.unet
pr,Jll.r;lI1H r~II"'Jnl It) 'he C')IlI-;I\:Inr'\ employ.
rllI'nl I,.',..l~, e\rl~l:IJJI~' th,uc pr'lHram,
1'll1dd Ilrlpprl)\l'd h\. 01t' Ul'palllnenl or
1,1'.','r rile C"fltr,l(t<'r ,11.111 prl)Vlde nl)l!ce
,,, !h"~t' pr'l~r:lm~ 1\1 thl' 'ourl~r\ cllrnpl1l!tl
Ilnd.er ~Il Jl;uve
f. DISSemlnale thr ConlnctlH'1 EEO
pulicy by pro'lhtln, null.:e tJ( the poUcy to
unitJn, lInd tilioin, p,ouaml anll request.
Inl Ihell cuopetatlon In, ulillln, the elln.
luctor in mretln, III H:O obll'3tio"l; by
includinl it In any pollc~ manual and cIIUec.
ti'le b,ufalMlnll alut'ment; by publlcLuna it
in the cl)mpany new'paper, Jnnu,11 ~port,
etc.; by ~pecll1c te'IhlW or the policy wilh all
mllnaKelnent personnrl lnll Wllh ill minOl.
jty and I'l!male rmph,lyees al teut onel a
yeu; and by pOltlnll the cumpany EEO
polley 1m bulletin hlHWh .1cce~slhle 10 aU
tmploJYl!t' at each 1'lcJI,lln III/here 'IJn~trIJc.
!lvn work is perl\Hml!d
ll. Revicw, JI 1C-l~1 .tII"IJAllv, thr comr";)'
n\t" I:TO policy JOtI lfrtrmallvC" :ll'llnn <.lbh'
1l31ltJnR under lhe~1! 'pccll1cllll,'n~ w\lh J.lI
empl.,yet, havln" Jny re~ptlnslhlllty f'J/
hUll1M, ;u~jllnmtnt, lJydr. terllllllaUoll IH
other elllploymenl "ccI~lons lnl.lud.lnl spe.
cllk rev\rW M thut llenu With ..,nute luptr.
'11~ory penonnel Juett n Supennll!ndenls,
General Forrmen, ~Ic.. pllor h) Ihe 1IlluaUOn
of constrllctlon Wllfk It any Jolt ~Ile. A
wrlttcn record \hnl1 hl! rude :inti lnillMtalnt!d
idenllrytn~ Ihe llnlt .tnd pl3ce ,of thc~c
meetlngR, penons ,ltlt'ndllllf, ,ubJecl Mlaltn
dl!\CIUWJ, ant.! o1l5P'Hltllln or Ihl! ~llbJect
maller,
h. Diurmin.tte the Contractor', EEO
polley l!~tern3I1y b~' including It In Jny ad-
vertl!\lng In the new, media, ~pe-:lnca.lly
illcludinp: minority .Jnd female news media.
and providing wtill~n I\ollnealion to and
dhcuuin!; Ihe Conlracl"!'S [EO polley with
,)Ihtr CnntrJclofS Inll SubclinlraClon with
whom the Cl)nlta~lnr doe, oJr anticipate.,
dOing bU,lMeu.
i. Duect IS recruitment errort5, bolh ortl
Jnd WUlten, to mwmly, female and com.
munity luganllatlom, I" 5chools with mi.
nOrlty ilnd fem:t1e 'tudenl, and It} nli1lority
and fcm.1le recrUitment ,1nd trainli1' organi-
zations ~erving Ihe C'lI1tr;tctur', recruitment
lire, and employment needs. Not Wer than
one month prior 10 the date for the .ac~p'
tJnl.:e of applications f'lt apprl!nliceshlp or
olher traimng by Jny recruitment 'IOurce,
the ContrJ.clor ,hall lend written notifica'
tlon to orlamnlion, tuch as the IIbo'l'. de-
scribing the oplnmrrs, ~creenlng procedurts,
Jnd teit, to be us.ed In the selection procnl.
J. [ncour:tce prt~e"t minority :Jnd remal,
employel!s to recruit other mi.nollty person.
Jnd women and. 'Nherc r~ason,ble, provld,
Jfter 'chool. ,ummer 3nc1 vacation employ-
trlent Itl mlnoritv and female Y"Juth both on
the ,ite and in other areu or " Contractor's
workforce.
k, V..lldate JII le,U and other selection
ref)llinmenu where thtt~ I, In obli8;l!.tlon Co
do so under 41 CFR Part 60-3.
I. Cunduct, at lust .annually, an in'ltntory
~Ind evaluation 3t lust or all mi.norily and
female p,nonnel for promotional oppoJlU~
nllles .and encour31e these employerl to
~etk nr to preplU't fllr, throu,h appropriate
!tainin.. etc,. such opportunities,
m. Ensure that 'en\ortty practice.. job
clanlncationl, work us1lnm.nu and oth.r
petsonnel pnctlcn do not h"vt a dlJCrtlnl~
natory t:ffect bll conllnuaUy monitorlnl aU
penl>Mnel and employnlent related Jctivitlt.
to ensure lhat the EEO poliey and the Con-
luctor's obliNtll~n.. under th.se IpecinCl-
\Ions arlt heinv carried IlUt.
n. f:.nsuro Ih3t all fJeWtiel and company
~clivitie, are non'c~re",atrd U"PI thai lOP.
UJle tlT dn,le.u,cr 101le( and ne":IUUy
Ch;1I1I1''"I( raclliUts shaU bt provided to
J!mre privacy b1twcen lhl suas,
,
FmHA 1924.6 (~'Y. 2/87)
\,I. DU';UII11ml anI! m.unUU\ 11 ,.cQui (It itJJ
~Oll':IIIU1"n. of ul'f,,. lor .ubcontracu from
ndnunt)' ;ulll. f,mal. ~Qn.tl\l.l:tlOn oonUIl;-
t~n iLlId iuppU.n. i,nl;hhhnl ,"vculauon ...(
'lJlI.:iI~Ul,)nl tl,) mi.norhy iLrul r.m~. ClJntrac-
tin UI&JCUUIOI\l iU\11 ..uher bu.Iin'u aUQcl.I-
tlunl.
p. Cunl1uct " reri,..., ,n leUI annually. of
JU 1UpItNIle,.' i1dh.r~n'c to ilI\l.l perfor-
rnilne. undtl thl Conln.;to,', EEO PlJUt1t1
~ml "'ITilmilti\l1 lI.;llun ob~llIon..
8. .'1,)""a..:loll ue ~n'lJur..td to ruu""
I"lt.: U\ \lolunllU'Y .uw/;i.auo"Iwtuch autU
n fulfUlln. one or mort or th," alf\rmaUYI
~ction lJbll&ullorLI ('Il Ihrou&h p), The tf-
Iou' of a conUlchu .LUQ(:laUun, joint OJrl-
Ilillo:h>r'umon. OO"tJIICIl)I',ommunny. or
l)lhcr ,unw .fOUP 0" which the OORIIIClol
Ii J _ member an" pIIUClpanl, may be .usencd
llJ Iu!J~ anyone Ul more of III lJbU".
hURl un..!.r 7. Ihrou.h p of th... Sp.clJ1ca.
tlum provhhi! thaI U" wnUal:tor iI~t1Yely
pa.rucipatll In the lP'oup. mu.. evcry
tJlfort to II"UII that the ,roup hu II POI"
uvr unpact \Ill th, ltmploym.nt of mml,)r.
llle. oltlU women 1.1I Ih. lnUl.lIlIY, eRilUlI
that Ih. clJnclllO ben.lllS l)f the proillLn\
.11' reOeeled in the (oRlfactor'. mU1lJnlY
.1J1i! feml). workforce p.uli~ipatlon. make. a
ilol,)lj failh cffon to meltl iu isldmdl.laJ. ,uaU
.ani! urn.tables, and ..:.an pro.wI .COltIl 10
dOIo:l.lmentallon which dlmon",Ualn the e(.
'Iclbenus of JCllOnS takln on blha1l o( th.
Canuaetar. The obUpliun 10 comply, how.
.ur, La Ihe Conulcto,', and (&1IUII of such
a &roup 16 tuUUl III obllalllon thaU nOI be I
ricfense for Ih. Conulli:ton noncompli.anli:l.
9. A. WI.ht '011 (or mU\ortuel ilIUS a
IIp''all 11ft&ll ,ou for wom.n hAw. be.n
,
".....,
IltabhlhCFJ. Th, ('onuaclor. howlY.'. tJ
uquiscd tu pr'mdt eqWl1 .mplQymlnt
opporlunuy and II) li/.kl ..tnrmaUvI leUon tor
all mUlont)' &roup" t)oth mall IJUS femal.,
and all woman, both millorit)' and non-
mi.norlty. CONltquently, tha CunUlctor n1l)' b.
In Ylolallon of th. Eucut1V. Ouler 1I I
puU~ul" 1P0up I.a employ.d Ul if. lubllI.Rtiall)'
l1upuale mQMII (fur uampl.. ewen lJuoulh
the CUHUI'tUl haa aclucw.d In IUIUa for
"omltn "nt:raUv, Ih, ConUlctor may b.
in viulauun IJf the EucuuVI Order If a
.p,dJle mlnorHy "oup of wom.n II und."
utilized).
lO. Th. Conual:tor &hall not UN Ih. 10....
Vld fun,tab1u or aJfirmluvl I~tion Itan.
tla1l1. tu l..Iu~rllnU\a1l l&Il.UUt any penon
bltcaUM l)f r:1&:e, l:tJ10l, reli&lon. IU, l)r national
orl41l1.
11. Th. ConUlI(:lor ahaJJ nut Itnt.:r Into
any SubOJnLrI<<:t wuh any penun l)r 111m
J.blLlrtd hom Gl)Yfrr\rr\enl conLtll.cn punu-
ant to ExecuHv. Order 11246.
12. The Contractor Ltu.U C&try oul IUa,
Io1ncuonl and penalt1n for YiJlauon o(
the$( Ipceillcatil)nl and I)f the El.l;IJa1 Oppul.
IUNty ClaUII, IncludLn' IUlptlRIIQn, term..
nation and canccUaHon of uistinl lubcon.
tnc1l a.a ma)' be ImpolCd or url..l.,ecS pWIIJ.
VII to Executive Orlltl 11246, II amenlled,
.1ll1 IU unp1em1nt1l\& rr..ulalionl, by the
om", of Fedoral Cant..<t Compllan'" Pro.
&lama. AnY COnulcf.or who faiJ.a to CUly
~UI IUch IIJ\ctlonl u&'\ pena1titl &hall be 11\
violation of thl" sp.cillcaUonl and Ex.cu.
Uve Order 11246, a. amend.d.
13, Th. Conln<tor, in fulllllin& III oblla.'
liona under th... Ip.clficadona, 1h&l1 imp...
menl Ipcallc afflnnltlYl action It.P" II
JIQ'
-"""
4
lent at tlI.t.naJ.vI at tho.. Iwl1.ald. P'"
o.:nbcd In p......ph 7 af lhu. lp"cIIlca'
tiona.. t,O .11 10 ld\leYl ma.wlU&m reaW"
(rom aU lI(urta 10 .RlWI .:qual Impwymlnl
opportunlt~. 11 Ut. Cunu...101 Cull 10
'amply wub th. requ;'lIm,nta Qr thl EXlw.
UV' O,der, thl impllmlnUn. JlIWaUona. o.
th... Ipc'111~tion.. Ut. Disel;loI Ih.aJ.l prO"
t..d in .'''''<lou1''' wiLlI 41 CFR 60~.1,
14, The C~ntrl.:tor shall dcupall I ...
Iponaibl. om..ul to morutor all employm.nt
related acuVity 10 .nlurc. thai U\. compua~
EEO poUc)' iJ bc1n& carnad l,)UI. to Iybnul
rcpolla reLallnl to lb. prorlaiona harlO' u
may b. rrquised by the Governm.nt and to
keep rlCor41, R.cordl 1tw1 at leut 1ndl.&4.
ror nch Itll\ployu th. name, lJl1r.... t.l..
phone number.. conlUUlo110n Uadl!.. wUon
aJrw.:.Uon I' any. emplo)'CI II1lnwlC8Uon
number when 1oIII,f.nc.d. IOcW ..CUliey
number, ril.l:C. ..x. IIIIU, (...., m.cb&nk. Ip"
prontioa, tllLinec. h.lp'r, ur taborer). .lalll
of chlnll" in ltatu,a., houta wo,k.li pi' w_
in lb. lniJ1CO&lld trad.. rl" of pi)'. In4 Loca.
11001 at wllich the work 'My pn(onnod..
RecoruI sh&ll b. maintained In III eWl)" \WI".
Itandabl. anl..l rllnnlbl. funn; hQw.v... to
LlI. d.Ill" thaI ",lallnl I.COldl 1ILla(y tIIIo
re.qulremenl, li:OnU'lcton ahail Dot be r.quired
to mwualn Hparltlllcurd&.
U, Nalhin& h...ln provided IhaIl bo co...
IIIUe4 .. . Umlllllon upun thl .pplkalloD
of oeh.r law. wtucJ\ ..tabUah dLft.IIDI ItaDo
iJlldI of compl1anCl or upon \h. .pp1lcatioD
at toqulr.m.nll for tho h.irioI o( 10c:a1 01
othll "n "Iid.nu (...... tho.. WldIJ &hi
Publlc Work. Employmon. A" or 1917 aA4
I~' Community Dt..lopm.n, Bladt GrID'
Propam).
.......
. "
....... .
......
..' ....
.'
.
:
FmHII192H (Ill.., 2/11)
~'
-.....
r~."."
.....-~,
/! 5
~/?- ~--.
----..
./
IN WITNESS WHEREOF, Ihe p.rtles herelo have ..ecuted Ihls corCI" or
J
GENERAL CONDITIONS
I. CflANGES IN WORK. - The Owner may at any time, wilh the approval ur Ihe omcial deslgn'ted by the Farmer< Home
Atlministr3tion (hereinafter called lh~ Represcnt;ltive), make ch3ng~s in the urawlngs :lOd spl!cH1c3tions. Within the general S~IJPI:
Ihereor. If such changes c.use .n incre"e or decrease in the .mounl due under Ihis contract or in the time required for its perror.
mance, .n equil.ble .dJuslment will be m.de, .nd this conlracl WIll be modined .ccordingly by a "Conlrael Chan~e Order". No
tharge for an}' extra work O( I11Jtcri31 Will be allowed unless the same has been onJl!red nn such C0l1lr3l't chanHc oruer hy ,lie
Owner wilh Ihe approv.1 or Ihe Represenl.lIve, .nd Ihe price thereCor st. led in Ihe ",der.
II. INSPECTION OF WORK.-AII 1113lerla" ,nd workm.nshlP WIll be lubJect to inspeellon, examlllallon. alld lest, hy Ihe
R~presentJtlve. who will have the right to reject defective materiJI and wt)rkrn:Jn~hip or require Its correction.
III. COMPLETION OF WORK.-If the C'lnlradnr rcruses or rails to complefe the work wlthll1 lh~ tirnl! sp~dned in par:J-
graph B o( this I.:onlrac.:t. or any e~femit)n theren(. the Ownl'r may. WIth till' approval 1)( Ihe Representatl\lc. terminate llll'
Contractor', right to procced, In such c\'t.:nt the Owner may take o\l~r the work Jnd prosecute the Jamc to c.:ornplclHHl hy c.:ontrad
Or (}therwi~c :lOd the Contr:l(;tor wJII hc liJhlc for any t:XCl.!S'i cost oCc;I~ltlncd the OWI1~r thereby: ant.! the Owner mil!,
take PO~~f\SS;Un 1)( :md utili/l: ill ':Ilmplcring thc work such matcrlals ,Int.! cquirmcnt as may be nn Iht: ,ill.' or lhe work .lnd nt!c.:c~~Jr~
theretor, If the Owner does not terminale the rll~hl of the CDlllr:.!ct to proceed. the Contractor will c.mtlnue the work. in \\IllIl.:11
event, actual damages for dl!lay will he impossible to determine. and. in lieu thereof. the Contractor may he required to pay Ip tIle
Owner lhe 'ium of S 1.8.93 as liqllldatl:d damages for each cal~ndar day of Jt!IIY, Jnd lh~ Contractur
will be liable (llf the alllount thefco(; Prollidl..'d, howeve" That the right of the Contractor to pro'~eJ '.\1111 nlll he lefminatcd
because .)f del:1y\ in Ihe comphHinn of the complt!tion of the work duc 10 unforesecable causes bcyor1d tlie COl1trartm's cpnlrlll
and without Contractor's fault or negligence.
IV, RElEASES.-Prlor 10 nnal paymcnl, Ihe Conlractor WIll .ubmit evidence Ihat "II payrolls, material bHI., "nd 011""
indebtedness connected with the work have becn paId as reqtJlfed hy the Owner or the Reprl!sentatlve,
V. OIlU<;ATlON TO DISI;HARGE UENS.-A".pt:lllco by Ihe Owner and Ihe Represenl.llve 0' Ihe complctcd ""rk
performed hy the Contraclor and payment ther~for by the Owner Will not relieve the Contractor of ohli~atit)n lo the QWI1('r
(which ohligatlon Is hereby .ckllowledged) 10 dllcharge any .nd all lien, for Ihe benenl or subconlracl",S, labo,ers, ",alcrl"l.
penon, or any other persons performing labor upon th~ work or f'Jrnishlng material or machinery ror the work (o\'ered t-y 111:~
contract. which have .tlached to or m.y subsequently atlach 10 the property, or inleresl or Ihe Own.r.
VI. NOTICES AND APPROVAL IN WRITING.-Any nottce. con.eot, or olher act 10 be gIven or done hereundcr will he
valid ooly If In wrillng,
VII, ADDITIONAL REQUIREMENTS.- Th. cOlllractor. in the perfolmance of Ihis contracl, will comply With JII appllcal'le
Equal Opportunity requirements. The prOVlllOns or FmtlA In!lrUClion 1901.F concerning Ihe prolectlon of hlllorl"l,n.l
archaeological properties anJ the provj~lons of FmHA Inslrucf.ion 1940.G concerning cnvironmentai r~qulrl;!mellts ~Ipply Th'
conlr3ctor und~rstand5 that shlmld any archaeological resources be discovered during the construction procc~5. the ~nntr:h:tl'r WIll
notiry the oWn~r and ~ea5e further construction Jctivtty that ~ould affect the resource until the owner h;!s ,;onsult\~d WIth FmH..\
and Ihe conlraclor is informed of .ny sleps 10 be laken or told to proceed wilh c.onSlruction.
VIII. ClEAN'NG UP.-Th. conlrac:or shall keep Ihe premises rree from accumulation of w.Sle m.te",,1 Jnd ruhblSh ,Iod JI
the completion of the work shall remove from the premises all rubbish, implements Jnd ~urp'lus material, Jnd t~iI..e the huildln-l
broom,dean
IX. 81)IlDERS WARRANTY.-Upoo completion of Ihe work Ihe contraclor wiil. ICh"k 0 propcr....m.Illt' dJtI<c "nd
e,.recliv~ly..:'t.,c<,x~\.\X)( out fhc~Jphc;)hl~~)
:t.~ 1!,\et;lIle Fonn FmHA I(J:.Hf). "Budder' Warranty".
X%Xlt)\)O\~'((II~~~~~IOImm<~w;:<x
:t~;_~Jt~x.~~'X
....U! GOV!AI'\I"'l!N1'J'RINTlNOn"'lCI!, ,,,. ~
FmHA 1924.6 (Rev. 2/87)
'-'
USDA.FmHA
Fa,'m FmHA 192~-lq
(Rev. 2/87)
........
FQ~ 'I ~"~l)\ III
0,..8 ~O IH H c)U4J
BU'LDER'S WARRANTY
Prop.n~ LO(ltlon
Nll/Tlc(.) .nd Addr... of Purch..." .)10.. n"h)
~1f.hu~asaMo.d
3hlpp.r.3burg, PA 17257
9...
For lood and valuabl. <on'lderation. the unde"'gned Warrantor h..,"} "'arranl. hi Ih. Pu"h..e" " or O"'n," I) ,d'''lIl1e,j .b"..
Ind 10 hi. (Ih.lr) .ucces.on or lr.n,f..e",.1I of whom are h.mnafl.. r.(erred 10" O",,,en Ih.,
Th. building. including IppUrlenan<el local.d on Ihe properly Idenlilled ab."e. 1\ <onllru<"d ", ImP' '"d In lub
.Ianlia' conformity "'nh the drl"'lnll and Ip'C1n<allOn, "'hl<h have b..n approv.d In ..rnlnl by Ih. farm", 'h,,".
Adml/lISlrallOn (FmHA) Thl\ Warr.nt} appll.. 10 all ..orkmanslllp. m""uil. Ind Ihe Inll.llallon of .qu'pm.ntl'"
cluding, bUI nOllim"ed 10. the he'llIlg IYllem, "'ater hemr. rll11@e. .nd r.f"llerat"')
Th. O"'nen shall ai.. ",r.lIen nOIl<< 10 Ihe War,.nlo, prompll) aller the dlll;ovtry of .n} del.<lIvr ,ondnl"" Sudl
wrillen nolice mUll b. given 10 the Warranlor during 'he prrJod of "'arrant) The perIod ,jf ..arranl) Ihall b.lallO tho
cas. of n.'" cOOllroClion or r.habOnallon, one yu, from the dale of 1Il1llal o<<upan,y or Ihe <ompl.l.d ," "hab~lIatcd
building or (b) in Ih. case of Improvemenll made 10 an ..llllOg bUIJdlnll ""'ned b} Ih. O..n", p"'" I" Ihe Impr'''.''ltnl'
beinl mad., one y.ar from th. date of tho complehon of Ihe ",o,k
It is lareed and und..llood Ihat Ihl\ "'amnly shaU apply only 10 .ho.e defeell,e ,ondlllonl or ..hi(,h ,h. Warranlo, hal hun Ilv."
..rlllen nolice during Ihe period of "'manly
Warranlor (urthtr IlIfers thar he will take an} neceuar) acflom fa ,orre~1 su,h d'f'''"'t'' ~ontJllll)n' '*lIhln "'" ~....."".. dol'"
of receipt of ",rlllen nOlice. If luch aelion 1\ nOI laken ,,"hlO .....,..:c............. dlYI. th. O..n"l 10') ,llh." opllon. 'onlra" ..nil
Inolh.r parly for Ihe corrtelion of the defeCII. Warranlor .aree, 10 p,y an} "p.nl.. In<umd b} Ih. O..n... 10 ';0"." 11.1'.<11
covtred by Ihis Wtrranty.
Thi. wlrrlnly shill b. in .ddnlon to, Ind 10 no "'1 ..duct, .11 oth:r'i&hll and Pllv~'M" ..h"t, lu,h O..n... may half und.. an)
olh" law or ins1rum,nt, and shall br bindin. on thr Warrantor nOfwuhsundln. any provISIon fn Ihf (,'I.>nlnry ~1)nl'ln.lJ In ,h. ~on.
trlct of purcha.. or any olher inltrum.nl ..o,ultd by Ihe O"'ne...
Till. worrlnly is ..ecuted, In put, ro, Ih. PUrpOll of inducln, tho Farm... Ham. Admlnlluallon. ~nlltd Sill" O.p",m.nl or'
Aaricuhurt, 10 mlk<, !.n'Urt, or auar.nt., a lOin on Ih. ctpllon.d prop"ly
If W. is sl,n.d by Inyon. olhtr Ihln Ih. Warrlntor, lh. p.non li,nina for Ih. Warrantor repllllnll.nd carlln"rhll h. I. luthor.
Iud 10 OXteUlt samo hy rhe Wlrranlor Ind by hi. .iplllUrt Ih. Warrlnlor i. bound undtr Ih. 111011 .nd <ondlllon. 01' rhll ..arranly.
NOTES: A. Bu~dor or Oul,,-Contrlctor to conlplfl' alllh,.. rorm. ,,<.pt dal", m." wllh o..n.. 10 a".. on ..amnly p,"od,
al,n .nd a.ve to o..nor ..Ilh Ih. flnalllquell ror paym.nt.
Owntr to m.t! wilh WU'1Il10' to la'" on wtrranly p.flod .nd to dllt and 'I,n. ,fll.n orlllnal, Ind for..ard on.
copy 10 contrIClo" IIld on. 10 FmHA ..Uh Ih. f1naJ IIqUtl' for plym.nl
B. This \IIorr.nty shall bt required in III CIII' involvina n'\11 conltruClion 0' rlh.hUII.llon of bu~dlnl' ,""udlna thou
buill undtr contract, tho.. built for Ill. "llhoUI FmHA requll.d conmuctlon inlplCllon. Ind rhou undtr condi.
Uonl' commitm.n. prac.dur...
WARNING
SeeUon IOCII 0' Till. .1, Unll"" 5111.. Cod. ,rovld.. "Wh_r, .. My 11II11..
wilhin 1Il. jurladlcllon 0' Ifty ...,IItIn.nl or ..,ncy 0' Ih. Unl't'll Sill.. lIno.......Y .....
wWrully . . ........ Ifty '11_, f\cUhou. or '..udul.n, .1I1'_nl. or "'_011110". 01
....... 0. _ laY 'lito ""Ii.., or docum.nl luso..'.., Ih. ...... 10 .Mlllo illY rllu,
f\cUhou. 0' ,..udlll.nl ltal._nl Of "'ry, lilli' 1M nMd 001 11I0" 1M" 1.0,000 or
im,ritoned 001 810.. tIwl n.. yoan, or bolh".
--
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'.. ,.-
In Iddilion 10 the pifC.dln. ~lrIlnly, I' -OWIn, Uemllrt covelfd b)' I ~omp.ny Wlrl 'md/or ,ulrlnl.. II follow I'
h.m
S.,ialat Mod.1
No.
Nam. and Add.... of Company
H.IUn. SYltem
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IUfri,erltor
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"Inuflcturrd
Home
Other
Olhtl
NOTICE TO PURC:HASER(S)/OWNER(S): ANY NOTICE OF DEFECTIVE WORKMANSHIP, MAnRlALS OR
NONCONFORMITY MUST BE DELIVERED TO THE WARRANTOR NO LATER THAN _.......~;,,,- _..............
(Wlrrantor shall Insert date one( I) yea, from InIUal occupancy, date of con.ey.nce of Utle or date of compleUon, whlche.e, is
Ippliclble.) AU pllsUc pipe used in this job wUl carry, a S.year warranty f,om the dllO shown by lhe Wllllntor above,
We hl.e furnished the abo.. company warranti.s andlor ,uarantets to th. owner for hJs/htl use. If thi> wlrranty cov.rs a manu.
flclured home. we certify that Ihe manufactured home property substantially complies with Ihe plans Ind specifications and the
mlnufaclured home sumined nQ hidden dama,e durin, Iransportation 3nd, if mlnufactured in separate sections, thaI the sections
Wire propelly join.d Ind ..aled accordin. to th. manufacturer'llp.cifications.
'/ ~..........dav of
IN TESTIMONY WHEREOF, thl Warrantor has si,ned Ihis warranty this ........................................__.. __ ,
......................r...................., 19 ..il,
"6 V. It1QC..St.r;.t..-..-.......-......-.......
LanQ..t..r.A...f.!.J1~'-............__,_.._........
(Wlrrlntor's Address)
-..-.-.--.-.-.-----.-----...-.-----....
,/ ./,' /
By O~;~~"bO:- wlr;-'-;;;o;'('Si;m;;~~trl~l
Rlceipt of this wlrrlnty is Icknowl.dl.d this ..-................_..........::;?;Lt~. day ~f _.n..._~~__f1-.._. : 19 _..~-'I
~.. ~C /~/'.-___.
..._...c.:::..~.~....,.....,...c....!............ , --'7...-"--..-..-
Anc1e L. Carbaucb .
..... ..... .... .......... .................... .............-..._-.PU;;h~Sfr( s)i.O:;;~;;;~;
FII,11A 191...19
MEVEMU
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SHE~IFFJS OFrlCE
.
50 rJORTH DUKE STREET.
LANCASTER. PENNSYLVANIA 17602. (7111299.8200
[_______~ __~ _ _~___~_ uu ~ ~__. ~__._ .~_ ~_____._~__
INSTRUCTIONS FOR SERVICE OF PROCESS on the '''\I.rat 01 '.h. la" (NQ
5) copy 01 thlll form Please IypI or p"nt IltQlbl'f Do nol dfflach lIny coples
---- - - - '-~-12-COURT-NUM8ER---
96-2178 Civil Term
.. lYPE OF WAIT Of! COMPLAINT
Complaint.. __~ ___ _ _ ~ U~~__
SHERIFF SERVICE
PROCESS RECEIPT. and AFFIDAVIT OF RETURN
PLAINTIFF/51
_...!>..!!9.~_.L, _C:(lrballs-h ~
3. OEFfNOANTISI
O.<'tkW<J_oQu Home~. I nc;.
6 AOORI:SS fSllel~! Qf ~lFO Ap1ll11l1mll No City UnlO r~jl'
Stdli~ ;111<1 .!IP (;0<11'1
:31:
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Oakwood
s~--r
__~AT_.u 336 We~t King St.. Lancaster', P^ 17601
~~~~~~TE U.~.~_~~~L SERVICE COMMON OF PA X UEPUTIIE OTHI:H Cumber 1 and
Now,{>,pr~_2.5~ 19 96 . I. SHERIFF OF MNC"lI1eR(COUNTY PA. do h
___.1a.Jl~~!3 t:'i!r _ Counly 10 e,ecule thiS \~ ~
to law Thll:) deputation beIng made at the request and risk of the plaJnll1f 1;;11'111;'; I A'l'~
..- SPECIAL iNSTA-UCTION-S OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
HQfT)es,. In.c.
5 NAME". OF INDiVIDUAL COMPANY CORPOFIAflON. Ere. TO DE ~~HlYI.'U
...
~o
....
tll
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NOTE ONLY .APPLICABLE ON WRIT OF EXECUTION: N,B. WAIVER OF WATCHMAN AllY rJPPll!Y hlwtltr I"Y"Ul\J lJpon "I allw:!lu1\j ;lny pmpfHly ul1l1ur
within wnl mllY IClwe SillTIO wltl10ul a Wll!ct1rl1IUl, 111 <:\JI,trJdy 'll wl)(jn1ovtjf III ")lJ!ld in p'Jt;~iO'iSlon, illl'lI 11,)I,IY"1U pn':irm 01 illYY .1t ;lrt;Kl1l11ont, ....lttll)(jt Iillblllly on
the part 01 sur.h deputy 011110 sl1..,rlll to any p:U1nllll 1'f!tI)ln hit ilny IO!H;, 1!I)Httw:lll}f1 01 I(,I11I)v,,1 ninny SIn:ll pl(jpl~r!y Iwf'Jrn 'i11l1rrll's sail) tI:crf)ol
9.Sj~~:UR~~~:ORNEV<" OIl~~::I:~:D CO PAID ADVANCE COSTS I;'; ~~'~'~(~N~ ;~M:;n I' ~~;i~ _ 96 .~..
l~si'Nij-NCfTICEOFS-E)~V'ICE COpy TO'NAME AND' ADDRESS SElOW: (This aroa must be completed if notlco is 10 be mailed)
ESg. AT SlIME
__B~(m~_J.!!!L___n__SOU!~!!JlEDIfORr:l STCARr,I$E Pl\ 17013 . . u .. u . ... . .. .....
__.~___--.!l?ACE ~ELOW FOR USE OF SHERIFF ONL V - DO NOT WRITE BELOW THIS LINE
NAME of ,'utl'I)P/l~d LeSO DI'IIl!ly ')I ell"", II.l 1);111' Hp(l'lvpd I If) Explr~I!1011,HearI11(J ;jl-;!'l.~
13, 11Ici~nowlp.dge ro<;erpt ollhu writ} . .
_o"o",p"","-~,_,",j".I110<'''b'''":_uTRACY L. SClIANZ FORA. MOI\I\IS 295-3609 I 4/26/96 ..5/24/96-
16 I hl!t(lby CERTIFY and RETURN 1I1ill I 1j,'I'J!' 1)"'<"111..11'1 ';pr,l'~(1 .....r;il'I'. 1I'1l.!1 ,'~'drnl" <1! . pI\lln' .I:, ,,11'1'1.11 ,ll H"I1'dll<~, IlIlY,-' '~."(IJlt.'d ,Ill ~illOWI1 rn
"Aemlllks" tile w,;1 or complam! (ll!i;ulhtJd un Ill" ,nl1lvldlllll ,"lIl1l,'liIlV (I)rpll'illllJl1 .'t, .It 1I1'! ,j,jdr,",'; :.ll<JI,"'r1 .11)<)\11' 'j! on lilt' IWll'/ldIMI ';<lrnpllny ,:m.
pora!lon ole. al 1110 addrt':.~I; Illliortp.d 1)1)lqw 11Y 11.lfHlllhj .j TRUE nnd ATTESTED COPY Ihereol.
17 I hereby cenily l\nd wllJtt1 A NOT FOUND IleC;JWil! I ilm l;(llllJII' 10 In!.l!!:' IIw 11)')IVIIIII;l1 (<Jll1p.I!lY r.I)II,"Hdtl<JIl ,,1<:
18N,ii;;;';';;-di.iiia'-':;i-UidIYld;;UI s-;;'r...'~(J III !1ut ~;tIO'/\ll '1110p'! FlI~I(l!ICn~,11Ip hr 1J"t'~llIDIII II
_____jIE~7Jti:lt 9~NNE~ I ~~<:I'-U'W/J'7
20 Addre~s 01 whOle l;or\ll1lj (':/Jtl1I)Il'lfl 0111'1 rl (jllh)tt:nl t !Ill 'il1uwn ;It)<JVHIIStl'!I~1 IJI I'll Alj:lItll1l!llt ~jiJ (;II\-' 1.1",,) !\:/I;
Slate IInd lip COrle)
l'il!Tu'd n!Jovn tS'."'Il'tllwk:i !wll)w)
II(j {lp';I,.'."I"I',"II;,!.I".!')I! '11""1<0,<."1"11<.0\
II'"" "..,,,1111" III rrHl ;,,,I'J'l<lllnr., ,;~<;al
(JlliU! ,'I.rtlo<lu. . .
;:1 On!,-, ,)1 Snrvu',! :?;J TltlH1
~----- j~~k rlf~r'fIrS:~7(1~)~~Ni." /.~N<'II fJ" I
23 ATTEMPTS ,"II, MlIeII~ D'P~' 1 Dill. Miles i Dep Int Dot. I Miles 1 Cop Inl I Dole
_ ___H r~/f' r :p, S'~/ ~"r r%.J , I
2~~;;~;CO"5 100.00 2', ;~~"~OC"." [.,,> N,,""y"'" 1.'/;3':';'/0'"
30-'FIEM'""'- !ftJ: "1M!';"" - tl1~~6''7 I9C~!(6~-.r ptJA., QI/"~!/,,gl'
STA
$"-1- 96
S':g()
AM
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31 AFFIRMED ;tnd ';ulll;<:rlhr!l! II! IwhJfI' tilt! Ullio
A~Y~I~ I~' ,';;.,,';':!::::::::""
~ 11";".1'..111"".,,1
:; <Jny 0' '.' P"''''''''''''''l'''''''''l N'.",,, ", '
!-1_~_qg~~,I~.$tON,~.X!'-'R,ES " .
~_~~~~U!~q~!~~~.!~~_~!~~~~~!~~~?~I.~~~~Ir;';~r:TUR,~. SlaNA ~~~~_}_.._....
$0 ANSWER.
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Mil..! Dep. In'. [ Dele I Mlle. [ Dep Inl.
i<3'.'3'.(~O 12~Z:;:p
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8, Denied, By way Ill' further answer, the allegations contained in paragraph 8 constilUle
conclusions of law to which no responsive pleading is required,
9, Denied as stated. By way of further answer, the allegations contained in paragraph
9 constitute conclusions of law to which no responsive pl~adjng is required,
10. Denied, After reasonahle investigation, Defendant lacks information or knowledge
sufficient 10 form a helief ;IS 10 the tl1lth of the averment contained in this paragraph and the
same are therefore Denied.
COUNT I
VIOLATION Of THE PENNSYLVANIA UNFAIR TRADE PRACTICES
AND CONSUMER PROTECTION LAW
11. The Answers to paragraphs 1 through 10 are incorporated herein as if set forth fully
below,
12, The allegations contained in paragraph 12 constitute conclusions of law to which no
responsive pleading is required.
13. The allegations contained in paragraph 13 constitute conclusions of law to which no
responsive pleading is required,
14, The allegations contained in paragraph 14 constitute conclusions of law to which no
responsive pleading is required,
15, The allegations contained in paragraph 15 constitute conclusions of law to which no
responsive pleading is required,
16, The allegations contained in paragraph 16 constitute conclusions of law to which no
responsive pleading is required.
17, The allegations comained in paragraph 17 constitute conclusions of law to which no
responsive pleading is required,
18. Denied. After reasonable investigation, Defendam lacks information or knowledge
sufficient to fonn a belief as to the truth of the avermem contained in this paragraph and the
same are therefore Denied. By way of further answer, Defendant is unsure as to what Plaintiff
is referring to as "trouble damages".
WHEREFORE, Defendant respectfully requests that Plaintiffs Complaint be dismissed
in its entirety.
"'"'"
,-.
~IFICATION
I HEREBY VERIFY that the Answers set forth In the foregoing pleading are true and
correct to the best of my knowledge. information and belief. I understand that any false
statements contained herein arc subjeclto the penalties of 18 Pa. C,S. Section 4904 relating to
unsworn falsification to authorities,
I certify that I am a duly authorized representative of OAKWOOD HOMES. INC,. and
as such. am authorized to make this verification on its behalf.
OAKWOOD HOMES, INC.
BY:
. TITLE:
Dated:
.......
,-.
COUNT IV
NEGLIGENCE
27. The Answers to paragraphs I through 27 are incorporated herein as if set forth fully
below,
,
,
28, The alleg;uions contained in p;uagraph 28 constitute conclusions of law to which no
responsive pleading is required.
29, The allegations contained in paraguph 29 constitute conclusions of law to which no
responsive pleading is required.
WHEREFORE, Defendalll respectfully requests that Plaintiff's Complaint be dismissed
in its entirety,
NEW MATTER
30. The Answers to paragraphs I through 30 are incorporated herein as if set forth fully
below,
I
I
I
31, Plaintiff may have been comparatively or contributorily negligent,
32, Plaintiff may have failed to commence the action within the applicable statute of
limitations.
33. The al.:tion or actions of individuals or entities other than, and beyond the control
of, answering defendant, may have been responsible for Plaintiff's damages, .
34. Plaintiff may have assumed Ihe risk of harm.
35. Answering Defendant had no notice of any dangerous or defective condition,
36, Plaintiff has failed to mitigate her damages,
37. Plaintiff may have failed to stale a cause of action upon which relief can be granted,
38. Answering Defendant was not negligent.
39. The inddent and/or damages described in Plaintiff's Complaint may have btell
caused or contributed to by Plaintiff,
40. The incident. injuries and/or damages alleged to have been sustained by the PlalOlI<<
were not proximately caused by Answering Defendant. .
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,.
ANGIE L, CARBAUGH,
Plaintiff,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO, 96.2178 CIVIL TERM
v,
OAKWOOD HOMES. INC"
Defendant
: CIVIL ACTION. LAW
ANSWER OF TIlE PLAINTIFF TO DEFENDANT'S NEW MATl'ER
AND COUNTERCLAIM
31. The aIIegatio.'la contained in paragraph 31 cOlllltitute conclusions of law 10 which no
responsive pleading is required,
32, The allegations contained in paragraph 32 constitute conclusions of law to which no
respollBive pleading is required,
33, The allegations contained in paragraph 33 constitute conclusions of law to which no
responsive pleading is required,
34, The allegations contained in paragraph 34 constitute conclusions of law to which no
responsive pleading is required.
35, Denied. By way of further answer Defendant has received, on numerous occasions, notices
of defects as outlined in the Plaintiff's Complaint to which Defendant has failed to respond,
36. The allegations contained in paragraph 36 constitutp. conclusions of law to which no
responsive pleading is required,
37, The aIIegation6 contained in paragraph 37 constitute conclusions of law to which no
responsive pleading is required,
38, The allegations contained in paragraph 38 constitute conclusions of law to which no
responsive pleading is required.
39, The allegations contained in paragraph 39 constitute conclusions of law to which no
responsive plellding is required,
40. The allegations contained in paragraph 40 constit.ute conclusions of law to which no
responsive pleftding is required,
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PRAECIPE FOR LISTING CASE FO.R TRI~~
(Must be typewrlllen and sutlmllted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list Ihe 'allowing case:
(Check une)
x
for JURY trl31 at the next term 01 CIVil court,
for trial without a lury.
.................................................~............................................................................................................................
CAPTION OF CASE
tentlre caption must be stated In lull)
Icheck one)
I X) Assumpsit
Angle L. Carbaugh
Trespass
Trespass (Molor VehiCle)
(Plaintiff)
(other)
vs,
Oakwocxl llorres, rnc.
The trial list will be called on A'lgust 20 ,__1J~~
and N/A
(Defendant)
Trials commence on _Sef'.l:errtler. 16, 1996
Pretrials will be held on August 28, 1996
(Briefs are due 5 days before pret"als.)
(The party listing this case lor trial shall provide
forthwith a copy 01 the praecipe to all counsel,
pursuant to local Rule 2' 4, 1.l
Vs,
No. ____ Civlli6=2.L7!i___ 19
Indicate the allcrney who willrry case for the party who Illes this praecipe: _______,_
Ken Turo, ~squir.e
._-_._-~---_._--._--- _.
Indicate trial counsel for other parties II known:
MJchaeI Hess, ~squir.e
_.....---- .-.-...--.-----.--
This case IS ready for trial.
Signed:
Print Name:__f<<?~_.~:o
Attorney for Plaint 1ft
Date'
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IN RE: PRETRIAL CONFERENCE
A pretrial conference in the above-captioned case
was held in the chambers of Judge Ol,r on Wednesday, August 28,
1996. Present on behalf of the Plaintiff was Ron Turo, Esquire.
Present on behalf of the Defendant was Michael D. Hess, Esquire.
This action arises out of the construction of a
house for the Plaintiff by the Defendant. Pursuant to an
agreemont of counsel, the count for negligence herein is being
withdrawn on behalf of the Plaintiff, and the remaining counts
involve a breach of contract and violation of Pennsylvania's
Unfair Trade Practices and Consumer Protection Law. Defendant
has advanced a counterclaim for $2500.00 for certain money held
in escrow at settlement. This house was constructed in 1993,
and allegedly has problems with the septic system inter alia.
Pursuant to an agreement of counsel, this will be
a nonjury trial, which, by separate Order of Court, is scheduled
for Friday, December 13, 1996, at 1:30 p.m. It is estimated to
be of a duration of one-half day.
With respect to settlement negotiations,
Defendant has offered to divide the $2500.00 escrow 8um between
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ANGIE L. CARBAUGH,
Plaintiff
112 OLER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
IN ASSUMPSIT
96-2178 CIVIL TERM
v.
OAKWOOD HOMES, INC.,
Defendant
ORDER OF COURT
AND NOW, this 28th day of August, 1996, pursuant
to an agreement of counsel, the nonjury trial in this ca.. i.
scheduled for Friday, December 13, 1996, at 1:30 p.m., and the
trial shall consume one-half day.
By
J.
RON TURO, ESQUIRE
For the Plaintiff
MICHAEL D. HESS, ESQUIRE
For the Defendant
Court Administrator
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Plaintiff
I IN TilE COURT OF COMMON PLEAS OF
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1 CIVIL ACTION - LAW
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1 NO. 96-2178 CIVIL TERM
v.
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OAKWOOD HOMES, INC.,
Defendant
ORDER OF COURT
I" 11,day of December,
AND NOW, thh
1996, the nonjury trial
previously scheduled in this matter for December 13, 1996, is
RESCHEDULED to Monday, March 3, 1997, at 1130 p.m., in Courtroom
No.5, Cumberland County Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
Ron Turo, Esq.
32 South Bedford Street
Carlisle, PA 17013
Attorney for Plaintiff~~
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Michael D. Hess, Esq. ~v-
1222 Drager Road ) I\"/~"
Columbia, PA 17512 \1o,p""
Attorney for Defendant
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ANGIE L. CAR&AUGH,
Plaintiff
IN THE COURT OP COMMON PLEAS OP
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
OAKWOOD HOMES, INC.,
Defendent
96-2178 CIVIL TERM
IN REI
TRIAL TO CONTINUE
ORDER OF COURT
AND NOW, this 23rd day of April, 1997. upon
consideration of the Plaintiff's complaint in the above-
captioned matter and the Defendant's counterclaim, and following
an initial day of hearing, and the case not having been
completed, the record shall remain open, and counsel are
reque.ted to contact t.he Court's secretary for purpo.e. of
scheduling a final half day of trial. At the time of
adjournment of the trial on this date, Plaintiff had complet.d
her ca.e-in-chief, the D~fendant wa. presenting it.
ca.e-in-chief. and Defendant.s counsel was conducting a dir.ct
examination of Defendant's president. As of the time of
adjournment, Plaintiff's Exhibits 1, 2, 3, 4, 5, 6, 7. 8 and 9
had been ident~fied and admitted. and Defendant'. Exhibit., 1,
2, 3. 4, 5, 6. 8. 9, 10, 11. 12. 13, 14 and 15 had been
identified and admitted. Defendant's Exhibit 7 was identified
and withdrawn, and te.timony related to Defendant'. Exhibit 7 i.
hereby .tricken.
By the Court.
Ron Turo, E.quire
Counsel for Plaintiff
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ANGIE L. CARBAUGH,
Plaintiff
v.
OAKWOOD HOMES, INC.,
Dltfendant
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 96-2178 CIVIL TERM
Q.lU2.f:R OF COURT
AND NOW, this \L~day of June, 1997, upon consideration of
Plaintiff's complaint and of Defendant's counterclaim, and
following a nonjury trial, the court finds in favor of Plaintiff
Angie L. Carbaugh and against Defendant Oakwood Home, Inc., in the
amount of $2,500.00 for amelioration of septic system problems on
Plaintiff's property, with interest sec. leg. from June 1, 1994.
Ron Turo, Esq.
32 South Bedford Street
CarliRle, PA 17013
Attorney for Plaintiff
Michael D. Hess, Esq.
1222 Drager Road
Columbia, PA 17512
Attorney for Defendant
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Plaintiff
IN THI COURT or COMMON PLEAS or
CUMBIRLAND COUNTY, PINNSYLVANIA
v.
OAKWOOD HOMES, INC.,
De f endan t
96-2178 CIVIL TERM
IN RIIlI MATTIR TAJtIllN UNOZR ADVISEMIIlNT
"
ORDER or COURT
AND NOW, thie 11th day of June, 1997, upon
coneideration of the Plaintiff'. complaint in the above-
captioned matter and of the Defendant'. counterclaim, and
following teetimony r.ceived over the couree of two daye in a
nonjury trial, the r.cord i. declared clo.ed, and the matter i.
taken under advi.em.nt.
By the Court,
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Ron Turo, lIl.quire
Coun..l for Plaintiff
Cvju.'", (r-i'-<Uiit..L '//3/ Q'l.
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Mioha.l D. H.... I.quire
Thoma. Burke, I.quir.
Coun..l for D.fendant
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2148EMBASSYDIUVE
LANCASTER, Pl:NN9YLVANIA 1'7<<lB
TaI.ph...C717l381-"11 Paa (717) 3l19-OOl13
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ANGIB L. C;uuBAUGH.
PLAINTIFF,
NO. 96-2178 CIVIl. TERM
V.
OAKWOOD HOMES, INC.
DEFENDANT.
NOTICB OF APPEAL
Notice is hereby given that Oakwood Homes, Inc., defendant
above named, hereby appeals to the Superior Court of Pennsylvania
from the order entered in this matter on the 12th day of. June 1997,
This order has been entered in the docket as evidenced by tne
attached copy of the docket entry,
ORDBR FOR... TRANSCRIPT
A Notice of Appeal having been filed in this matter, the
official court reporter is hereby ordered to produce, certify and
file the transcript in this matter in conformity with Rule 1922 of
the Pennsylvania Rules of Appellate Procedure,
J1;tJ0~<-~
Michael D, Hess
!Oil 63650
2148 Embassy Drive
Lancaster PA 17603
(717) 391-2911
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1996-02178
Cumber~d County Prothonotary's Gftice Page
~vi1 Case Inquiry III
CARBAUGH ANGIE ~ (VS) OAKWOOD HOMES INC
1
Reference No..: Filed........: 4/24/199~
Clllle Type.... .: COMPLAINT Time. '1" " " : 10: 1
JudgmeYlt '1' . . . : .00 Execut on Date 0/00/008
Judge Ass gned: OLER J WESLEY JR Sat/Dis/Gntd.. 0/00/00 0
Jur~ Trial.... .
. ., Hi~ er Court 1
. Hi er Court 2
.*****.*......*........................................ .....................*..
General Index Attorney Info
PLAINTIFF TURO RON
CARBAUGH ANGIE L
337 WALNUT DALE ROAD
SHIPPENSBURG PA 17257
OAKWOOD HOMES INC
336 WEST KING STREET
LANCASTER PA 17603
DEFENDANT
HESS MICHAEL 0
................................................................................
* Date Entries *
...................................................................'.............
84/24/96 COMPLAINT - CIVIL ACTION
5/08/96 SHERIFF'S RETURN FILED
Litigant.: OAKWOOD HOMES INC
SERVED : 5/1/96
County Nm: LANCASTER
Ret Date.: OS/21/1996
Costs....: S62.60 Pd By: RON TURO 05/08/1996
ANSWER OF D~FENDANT TO THE COMPLAINT OF PLAINTIFF
ANSWER OF THE PLAINTIFF TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM
PRAECIPE FOR LISTING CASE FOR TRIAL BY RON TURO ES8
PRETRIAL CONFERENCE 8/28/96 J WESLEY OLER JR JU GE
ORDER OF COURT 8/28/96 NONJURY TRIAL IS SCHEDULED FRIDAY
12/13/96 1:30 PM J WESLEY OLER JR JUDGE
ORDER OF COURT - DATED 12/16/96 - NONJURY TRIAL SCHEDULED 12/13/96
IS RESCHEDULED TO 3/3/97 1:30 PM CR 5 - BY J WESLEY OLER JR J -
COPIES MAILED 12/16/96
03/04/97 ORDER OF' COURT .. DATED 313/97 - NONJURY TRIAL 3/3/97 IS RESCHEDULED
TO 4/23/97 1:30 PM CR 5 .. BY J WESLEY OLER JR J - COPIES MAILED
3/4/97
04/28/97 ORDER OF COURT - DATED 4/23/97 - IN RE TRIAL TO CONTINUE - COUNSEL
ARE REQUESTED TO SCHEDULE A FINAL HALF DAY OF TRIAL - BY J WESLEY
OLER JR J - COPIES MAILED 4/29/97
04/28/97 ORDER OF COURT - DATED 4/28/97 - CONTINUATION OF THE NONJURY TRIAL
IS SCHEDULED FOR 6/11/97 9 AM CR 5 - BY J WESLEY OLER JR J - COPIES
MAILED 4/28/97
06/12/97 ORDER OF COURT - DATED 6/12/97 - IN RE PLAINTIFF'S COMPLAINT AND
DEFENDANT'S COUNTERCLAIM - COURT FINDS IN FAVOR OF PLAINTIFF AND
~~~~~~Ts~~f~~D~~6BL~MgH~NA~~~~~T~~F'~'~~gp~~~Y~i~AO~~1~~~S~FSEC
LEG FROM 6/1/94 - BY J WESLEY OLER JR J - COPIES MAILED 6/13/97
06/13/97 ORDER OF COURT - DATED 6/11/97 - IN RE MATTER TAKEN UNDER
ADVISEMENT - UPON CONSIDERATION OF PLAINTIFF'S COMPLAINT AND OF
DEFENDANT'S COUNTERCLAIM THE RECORD IS DECLARED CLOSED AND THE
MATTER IS TAKEN UNDER ADVISEMENT - BY J WESLEY OLER JR J - COPIES
MAILED 6/13/97
*..*.**.........................................................................
* Escrow Information *
* Fees & Debits Bea Bal Pvmts/Adi End Dal *
................................f........,..............................*.......
83~8~~~~
83~~A~U
08/30/96
12/16/96
35.00 35.00 .00
.50 .50 '.88
5.00 5.00
5.00 5.00 .00
------------------------ ------------
45.50 45.50 .00
..............................................................................*.
* End of Case Information *
................................................................................
COMPLAINT
TAX ON CMPLT
SETTLEMENT
JCP FEE
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ANGIE L. CARBAUGH,
Plaintiff
v.
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
OAKWOOD HOMES, INC.,
Defendant
NO. 96-2178 CIVIL TERM
AND NOW, this
ORDER OF COURT
1(, rt. day of July, 1997, upon consideration of
the Notice of Appeal filed .in the above-captioned matter, Appellant
is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in
this Court and to serve upon the undersigned judge a concise
Statement of Matters Complained of on Appeal no later than 14 days
after entry of this Order.
BY THE COURT,
J
Ron Turo, Esq.
32 South Bedford Street
Carlisle, PA 17013
Attorney for Plaintiff
Michael D. Hess, Esq.
2148 Embassy Drive
Lancaster, PA 17603
Attorney' for Defendant
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superi~court of Pennsylvania ..
Office of the Prothonotary
434 Main Capitol Building
P.O, Box 9300
Harrisburg, Pennsylvania 17108
(717) 772-1294
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July 31, 1997
Notice of Appeal Docketing .
Superior Court Docket No, Assigned
00688HBG97
PROTHONOTARY I
Cumberland COUNTY , !
Cumberland Cty. Courthouse
Carlisle, Pa 17013
RE: Carbaugh, A V Oakwood Homp-s, rnc
You are hereby advised that the attached docket
information has been entered into the superior court records
i~ a case in which you appear as an officer of the court.
Please review this information carefully and notify this
office immediately if you believe correc~ion(s) are in order,
Thank you.
David A. Szewczak
Prothonotary
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07/31/97
1423
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SUPERIOR COURT OF PENNSYLVANIA
OFFICIAL DOCKET
DOCKET # 00688HBG97
FULL CAPTION
001E ANGIE L CARBAUGH
V
002'1' OAKWOOD HOMES, INC
COUNSEL
63650 MICHAEL D HESS
2148 EMBASSY DRIVE
LANCASTER, PA 17603
34334 RONALD A TURO
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
CONSOLIDATED DOCKET NUMBER
BACKGROUND DATA
TRIAL COURT RECORDS
CATEGORY:
COURT NAME:
COUNTY:
.JUDICIAL DISTRICT:
CASE TYPE/CHARGE:
TRIAL COURT CHARGES:
JUDGE (S) :
DISPOSITION TYPE:
DISPOSITION DATE:
APPEAL FILE DATE:
DISPOSITION ENTERED:
TRIAL CRT DOCKET NO, :
OFFENSE TRACKING NO. :
TITLE
FOR MAIL
002T
y
717-391-<:911
001E
Y
717-245-9688
CV
CIVIL
CUMBERLAND
09
CIVIL ACTION LAW - COMPLAINT
OLER, J
ORDER ENTERED
06/12/97
07/14/97
96-2178 CIVIL TERM
STATUS INFORMATION
08/14/97 DOCKETING STATEMENT DUE
08/23/97 LOWER COURT RECORD DUE
DOCKET ENTRIES
07/31/97 NOTICE OF APPEAL
07/31/97 DOCKETING STATEMENT EXITED
T~APPELLANT E=APPELLEE
FOR
002T
002T
.~COURT APPOINTED
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ANGIE L. CARBAUGH,
Plaintiff
IN 'rHE COURT OF COM\.lON PLEAS OF
CUNBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAI~
v.
OAKWOOD HOMES, INC.,
Defendant
NO. 96-2178 CIVIL TERM
AND NOW, thia
ORDER OF COUR'l'
'11\ day of August, 1997, pursuant to
Pennsylvania Rule of Appellate Procedure 1911(a) and Pennsylvania
Rule of Judicial Administration 5000.6, the transcript of the trial
held in the above matter on April 23, 1997, and June 11, 1997,
shall be prepared after the stenographer has obtained a deposit of
one-half of the estimated charge, the amount of which she shall
forthwith notify Appellant, Oakwood Homes, Inc.
BY THE COURT,
J
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Ron Turo, Esq.
32 South Bedford Street
Carlisle, PA 17013
Attorney for Plaintiff
Michael D. Hess, Esq.
2148 Embassy Drive
Lancaster, PA 17603
Attorney for Defendant
Susan Rice ,,- (-"/"" It, ./1.',..,"'{I<1 ~,,:.~. l',/ff kr'
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ANGIZ L. CARBAUGH, I IN THB COURT or COMMON PLUS 0'
Plaintiff I COMBBRLANO COUNTY, PBNNSYLVANIA
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v. I CIVIL ACTION - LAW
I
OAKWOOD HOMIS, INC., I
Defendant I 96-2178 CIVIL TERM
TRANSCRIPT or PROCEEDINGS
NONJURY TRIAL
Proceedings held before the Honorable J. WHSLBY
OLBR, JR., J., Cumberland County Courthouse, Carlisle,
Pennsylvania, on Wednesday, April 23. 1997, and
Wednesday, June 11, 1997, in Courtroom Number rive.
APPBARANCBSr
ORIGINAL
RON TURO, Esquire
Counsel for Plaintiff
MICHAEL D. HBSS, Bsquire
THOMAS ~URJtB, .squire
Counsel for Defendant
II'
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IHDEX TO WITNBSSBS
J'OR THE PLAINTIJ'P DIRECT CROSS RBDI~BCT RECROSS
Angie L. Carbaugh 8 34 51 54
David P. Chamberlain 57 73 90,94 93,95
Angie L. Carbaugh, 97
recalled
FOR THE DEPEHDANT
Dougla. L. Zook 100 147 171
John R. Jarredd 176 190 196
FOR THE PLAINTIFP
IN REBUTTAL
Thoma. Shelly 199 205 208 209
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INDBX TO BXHIBITS
FOR THB PLAINTIFF MARKBD
1 - Photo album 5
ADMITTBD
56
56
2 - Handwritten .heet of complaint. 5
dated 2/94
3 - Current handwritten .heet of complaint. 5
4 - Letter dated 6/17/96, Jeffrey A. Danner, 5
Sewage Bnforcement Officer, to Angie
Carbaugh
5 - "Notice" dated 11/27/96 5
56
56
56
93
93
115
99
151
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6 - In.pection report of In.pection No. 16 5
7 - In.pection report of In.pection No. 15
8 - Con.truction contract dated 7/14/93
9 - Legal foe.
10 - Letter dated 10/11/94, Ronald A.
Kraszew.ki to Doug Zook
5
5
97
148
;/
11 - Letter dated 4/18/95, David J. Spott.,
..quire, to Oakwood Home., Inc.
152
171
f
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12 - Undated letter, Dougla. L. Zook to
David J. Spott., ..quire
13 - Application for an on-lot .ewage
di.po.al .y.tem permit
153
171
:
,
200
205
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1 - Handwritten .heet entitled
"Thing. Need Fixed"
IIUK.D
ADII%T'rm
36
37
2 - Photograph
3 - Photograph
4 - Photograph
5 - Photograph
41
41
41
41
10.
101
108
101
3
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INDBX TO Jl:XHIBITS (Cont'd.)
.OR THB DB.BNDANT MAU:BD ADMITTID
6 - Photograph 41 108,
7 - (Bxhibit 7 withdrawn)
8 - Photograph 42 109
9 - Photograph 43 111
10 - Contract change order dat.d 1/7/94 45 4ll
11 - Handwritten note dated 6/13/94 50 116
12 - Inspection report of Inspection No. 13 77 77
13 - Builder's warranty 101 102
14 - Photograph 111 112
15 - Photograph 111 112
16 - Large photograph 125 127
17 - Large photograph 130 131
18 - Large photograph 135 136
19 - Large photograph 135 136
20 - Large photograph 135 136
.2l - Le.rge photograph 135 136
22 - Large photograph 135 136
23 - Large photograph 135 136
-. * .
4
'(J'
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1 Wedne.day, April 23, 1997
2 1130 p.m.
3
4 (Plaintiff's Exhibit Nos. 1 through 8 were
5 marked for identification.)
6 THE COURT 1 This is the time and place for a
7 nonjury trial in equity in the case of Carbaugh v. Oakwood
8 Homes, Inc. We will let the record indicate that the
9 Plaintiff is present wit.h her counsel, Ron Turo, Esquire,
10 and a representative of Defendant is prosent with
11 Defendant's counsel, Michael D. Hess, Esquire. Mr. Turo?
12 MR. TUROI Good afternoon, Your Honor. We're
13 here today on the complaint that I have filed on behalf of
14 Angie Carbaugh. As the Court will recall, we have already
15 pretried this matter. We're here today on counts of
16 violation of the Pennsylvania Unfair Trade Practices and
17 Consumer Protection Law, a breach of construction contract,
18 a breach of warranty. We had withdrawn our count of
19 negligence. I believe that had been a counterclaim filed
20 for the return of sums that are being held in escrow by the
21 'armers Home Administration.
22 Basically, Your Honor, this cas. involve. a
23 construction contract that was entered into by M.. Carbaugh,
24 who is here with me todmy, and repre..ntatives of Oakwood
25 Homes, Inc., which i. a Pennsylvania busin..s corporation
5
~
.
.
1 that con.truct. home., back in 1993. That particular home
2 wa. fin.nced by the parm.r. Home Admini.tr.tion under their
3 Rural Home Lo.n Program. A contr.ct w.s executed, .nd the
4 home w.. con.tructed, .nd M.. C.r~.ugh moved into th.t home
5 I believe it w.. very e.rly, maybe even J.nu.ry of 1994.
6 During this proce.., the P.rmer. Home Administr.tion made
7 regul.r inspection. .nd identified v.riou. deficiencies that
8 were found in the home. Ultimately, Ms. C.rbaugh
9 communic.ted directly to O.kwood verb.lly .nd in written
10 w.ys .bout the continued defici.ncie. that were di.cov.red.
11 Ultimately, when the d.ficiancie. were not
12 re.olved ..ti.factorily, the P.rm.r. Home Administr.tion, at
13 their own reque.t, brought in . Mr. Chamberl.in, whQ i. .
14 con.truction .nalyst working for their .gency. H.'. here
15 tod.y to te8tify .. to not only hi. review of the r.cord.
16 th.t h. di.cover.d, but he .1.0 went out and h.. twice
17 inspected the home .nd c.n report on the condition of the
18 hom... it currently i. .nd .1.0 will give ua an e.timate of
19 the .pproximate cost to correct th..e deficiencie.. That,
20 ....nti.lly. will be our ca.. tod.y.
21 THE COURT I All right. Mr. He.., dj.d you
22 w.nt to m.k. .n op.ning .tat.ment?
23 MR. IiESSI Very briefly, Your Honor. What
24 Mr. Turo .aid .bout the con.truction contract i. correct.
25 However, the warranty i. a contract, and it .tate. very
6
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.
.
olearly in the warranty that written notioe muet be given to
the builder within one year from the data of the warranty.
The warranty i. dated January 7th, 1994. By January 7th,
1995, anything that had been pre.ented to Oakwood Home. in
writing had been re.olved. We will pre.ent into evidenoe
that Ms. Carbaugh, in faot, signed off on the re.olution of
tho.e item.. Therefore, it's our position that anything
occurring after that warranty period is not the
re.ponsibility of Oakwood Homes.
As you mentioned, there's a counterclaim for
return of the escrowed money. Twenty-two hundred dollar.
was e.crowed. We will show that the work for whioh that
money was Bet a.ide was completed, and we are a.king that
the money be returned to Oakwood Home.. Thank you.
THE COURTI Mr. Turo, what is the Plaintiff'.
re.ponse with respect to the notice?
MR. TUROI There were .everal notioe., both
written and oral. Prom the moment Ms. Carbaugh moved into
the home she di8covered problem. with the sand mound and
other thing., and there have been regular notioe. .ent to
them. We have a copy of one letter .he .ent in P.b~ary of
'94 talking about the .and mound. I mean, we have that
teetimony.
THE COURT I
MR. TOROI
All right.
At thh time, I would oall q1. .
7
...,
.
.
1 Carbaugb to tba .tand.
2 ANGIE L. CARBAUGH
3 having been duly .worn, te.tified a. follow.,
4 DIRECT BXAMINATION
5 BY MR. Tt1RO,
6
Q
Would you .tate your full name for tbe
7 record, Angie.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
23
23
24
25
A
Angie Loui.e Carbaugh.
Where do you currently re.ide?
Q
. ,
A
337 Walnut Dale Road, Shippen.burg.
What town.hip i. that, if you know?
Cumberland.
'I
;
Q
A
Q
Cumberland Town.hip?
Um-hum.
A
Q
Aren't you actually in Southampt~n Town.hip?
A
Ob, yeab. I'm .orry.
'I
Q
Do you work, Angie?
!' i
A
Ye., I do.
f :.
"
Q
Where do you work?
HoU_n Mill..
I
,
A
Q
Do you have any children?
Um-bum, 'two.
A
,.
Q
Do tbey live with you in tbi. boa.?
,.
,
,
;ll
A
Ye..
Q
Did you bave an opportunity in 1993 to
8
S'3
.
.
1 purcha.e a lot to con.truct a home at that location?
2 A Ye., I did.
3 Q Did you take advantage of the Farmer. Home
4 Loan Program to do that?
5 A Ye. .
6 Q Just .0 the Court ha. background on that, who
7 initially told you about the Farmer. Home Loan Program? Do
8 you remember?
9 A No.
10 Q Wa. it the Realtor, maybe? It you don' t
11 remember, that'. fine.
1:l A I don' t remember.
13 Q Okay. Do you recall having meeting. with
14 various people about con.tructing a home u.ing federal fund.
15 trom the Farmar. Home A..ociation?
16 A Yeah.
17 Q Did you, in fact, apply for a loan under that
18 program?
19 A Y.., I did.
:l0 THB COURT I Is it the rarm Home
:l1 Admini.tration?
:a:l MR. TUROI rarm Home Admin:l..tration. I may
:l3 reter to it a couple ot ditterent way., Your Honor. It'.
:at the .ame one we're talking about. It ha. .everal actual
:l5 ditferent name., I under.tand.
9
Sy
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1
:l
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4
5
6
A Yeah.
Q What is that?
A It'. something from a construction C1ontract.
Q Is that your signature there?
A Yes, it is.
Q Do you recall that the agreement required
7 construction to start in July of 1993?
8
9
A
Yeah.
Q
So, it was shortly after you signed this
10 contract that construction of your new home began on the
11 lot?
l:l
13
A
Yeah, that's right.
THB COURT I
What is the date of the contract?
..i.4
MR. TUROI
July 14th, 1993.
Thank you.
15
16
17
THB COURT I
BY MR. TUROI
.'
Q
Did you go out and watch the C1onstruction
18 take place during the summer of 1993?
19
A
We drove by a couple of times. I didn't
:l0 stop.
:l1
Q
You weren't required, however, in any way, to
"
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:l:l inspect the property, were you?
:l3
:l4
:l5
A
No.
Do you know if people from 'a~ers Boae di4
Q
,j
'.'i
that?
.J
,\f~
11
5'
8
9
10
11
... .,
.
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:a
Yeah.
A
Q
Were you told of regular in.pection. that
3 they C1onducted?
4
5
A
Yeah.
Q
Then Farmen Ilome would pay money to the
6 contractor a. the home wa. being built, is that what your
7 under. tanding was?
A
Yeah.
Q
You didn't write any checks out your.elf?
No.
A
Q
Did you move into the home approximately
12 January of 1994?
13
14
A
Ye., I did.
Do you remember what date that might have
Q
15 been?
16
17
18
19
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25
I think it wa. the 7th.
A
Q You don't remember. But it was in January,
in the winter?
II
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A UlIl-hum.
Q When you moved into the home, wa. it your
undox'standing that at that point the oomplete ::lob had been
f iniBhed or not?
\ '
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A No.
Q Do you recall what type of thing. .till had
not been completed?
12
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The land.caping wa.n't done.
Any other items that you recall?
Little thing. in the hou.o.
Did you bring tho.e little thing., a. well a.
'.
Q
, ,
A
Q
5 the land.caping, to anyone'. attontion?
6
7
8
A
Yeah, I did.
How did you do that?
Q
A
I called a couple ot time. to Oakwood Home.
9 and talked to Lucy.
Q You talked to who?
A Lucy.
Q Lucy was an employoe of O~kwood Home.?
A I gue...
Q When you would call and talk to Lucy, would
people come up to the home from Oakwood .ometimeB?
A
Yeah.
Q
Now, did you notice any problem with your
18 .eptic .y.tem Boon after you movod in?
:l4
:l5
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A
Yeah. It was leaking.
19
:l0
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Q When you say leaking, could you tell the
::Iudge what you mean by loaking?
'; I
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A
i;
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:l3 Bide, and the water was draining out of the one pole.
There is -- like there'. three poles on each
Q
When you .ay a pole, I'm not .ure I
under.tand what you mean by that. Is this an outdoor .and
:e.
I'"
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13
58
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1 mound?
:l
3
A
Yeah.
Q
Are there Bome types of pole. that are
4 visible from your yard?
5
6
A
Right.
Q
And you're Baying from one of the.e pole.
7 there wa. .ewage leaking?
8
A
Right.
This was in January of 1994?
Om-hum.
9
10
11
Q
A
THB COURT I When you say pole., are you
1:a t.lking about pipes?
13
14
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16
THB WITNBSS I Yeah.
THB COURT I A hollow pipe, i. that right?
THB WXTNBSSI Right.
MR. TUROI We have some pictures of that,
17 Your Honor. That will help, I think.
18
19
:aO
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:a2
:a3
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BY MR. TUROI
Q
I'm going to show you what's been marked
t
Plaintiff'. Bxhibit 2.
Do you recognize that paper?
I',
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A Yeah.
Q What is it?
A I wrote a letter to Oakwood Homes and put
down, one through ten, on what wa. wrong with the hou.e.
Q When wa. this document .ent to OakwoOd Home.?
14
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A The second month in '94.
Q So, this would have been soon after you moved
in?
A Right.
Q The best you can recall, did you, in fact,
mail this document to Oakwood Homes?
A Ye., I did.
Q Did you have verbal discu.BionB, as well,
with them about the item. on this list?
A Yeah. I callad Lucy, and she .aid that she
wa. going to talk to Jerry.
Q Who was Jerry?
A He wa. the guy that wa. the conBtruction.
Q He was the guy that was out there .ort of
supervising the ::lob for Oakwood?
A Yeah, I gue...
Q Let' II look at this list. No. 1 .ays sand
mound need. fixed?
A UlIl-hum.
Q What did that mean in term. of what the
problema were at that point?
A I called them and told them that it was
leaking and asked if they could .end anybody out to cheClk it
to see what wa. the problem, and they .aid they were going
to.
1S
1
8
9
10
11
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0
A
0
A
the wall.
0
A
0
A
.
.
Q
Did anyone from Oakwood Home. come back to
Did they ever fix that?
No.
No.3, what's that?
13 it, but the handle on the door, as you rise it up, fell otf.
The garage door needed fixed. He did ad::lu.t
14
15
16
17
18
19
o
It fell oft?
A
Yeah.
o
So, does that still need fixed?
A
Yeah.
o
How about No.4?
A
The clo.et door. in the bathroom and the
20 living room still need fixed. They fell off the hinge..
:l1
:l:l
o
How about No.5?
A
My daughter's room, around the ceiling, i.
:l4
:l3 cracked eround the wall.. They need redone.
o
Again, the.e are items that were not correct
:l5 in 'ebruary of '94, is that right?
16
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A Yeah.
Q No. 51
A My son's heater in the bedroom, it won't kick
on until it reaClhe. 90.
o I. this an electric heater of some type?
A Yeah.
Q Ha. that ever been tixed?
A No.
Q How about No.7?
A It saYB the toilet paper holder in bathroom
C1ame out of wall. That'. another one.
Q The towel holder.?
A Yeah.
Q Does that need fixed?
A Yeah.
Q How about No.8?
A The light in the kitchen Clame out of the
ceiling. We tried to put screws in it, and it still falls
out.
Q Ha. that been fixed?
A No.
Q No.9, what's No.9 mean?
A It .ays the tank alarm keeps going off.
Q What tank alarm are you talking about?
A To the sewage.
17
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.
1
2
3
Q
The .eptic system?
Om-hum.
A
Q
Ixplain for the ::Iudge why you had a tank
4 alarm, if you know?
5
6
A
I don't know.
Q
You're not even sure why there'. a tank
7 alarm. Well, de.cribe what happened when the tank alarm
8 went off?
9
A
I guess certain water goes up to the alarm,
10 and then it kick. off, I gue.., to .ay that it's too tull or
11 something.
1:a
Q
In February ot '94, when you wrote thi8 list
13 out, this alarm kept going otf?
14
15
A
Right.
Q
So, what did you do to solve that problem?
I called Oakwood Homes, and Jerry came out.
16
A
17 He said that the wiring needed redone. So, what he did was
18 he redid the wiring, stuck it back underneath the ground,
19 but it still -- it'. still going otf.
:lO
:l1
:l2
Q
Doe. that tank alarm continue to go off?
A
Ye..
Q
So, what have you done to Clorrect the
23 problem?
24
I
I
A I've been trying to get people to Clome out
i
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:l5
and check it out. I drained it three time. now.
18
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1 Q What I'm asking is do you actually turn the
2 alarm off somehow manually?
3 A Yeah. There's like a button on there that
4 says silent. We ::lust turn it on silent.
5 Q No. 10 on thiB liBt, you have landscaping not
6 done?
7 A Right.
8 Q Here we are three years later. Is the
9 landscaping done?
10 A No.
11 Q Now, again, ::lust so I'm clsar, you sent this
1:l list to Oakwood?
13 A Yes, I did.
14 Q You gave it to somebody, or what did you do?
15 A I sent it by mail.
16 Q You mailed it. And that's a copy that you
17 kept tor your own records?
18 A Right.
19 Q Atter February of '94, did, in fact, people
20 from Oakwood come back to the houBe on a couple ot ocoasions
21 to try to make some of these repairs?
:a2 A No.
:l3 Q Let's make sure you're clear about that. I
:a4 thought you ::lust told us that Jerry came baok and tried to
25 fix the tank alarm?
19
.
.
1 A Oh, he -- that wa. the only time.
2 Q Did people trom 'armers Home continue to come
3 back to inspect?
4 A Yes.
5 Q I want to show you what's marked Plaintiff's
6 Bxhibit No. 3 and ask if you can identify what that list is?
7 A That'. what needs to be done in the house.
8 Q Is this the C1urrent list of the thing. that
9 have not been completed in your home since it wa.
10 con.tructed?
11 A Right.
12 Q Was it your understanding, in talking to
13 people from Oakwood, that they would build you a hou.e that
14 would be complete? Did you ever have any question about
15 that?
16 A They told me that it I had any problems to
17 contact them, that they would come out and fix it.
18 Q Did anyone other than Oakwood do any of the
19 construction of your home?
:aO
21
:l2
:l3
24
:a5
A No.
Q Did Oakwood or it. contractors put the sand
mound .ystem in?
A As far as I know. I don't know.
Q You didn't hire anybody else to 40 any work
on the sand mound?
:a0
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2
3
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12
13
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A No.
Q Did you ever reCleive a notice of violation
from the township about thi. septic system and its
malfunctioning?
A Y.s, I did.
o I'm going to show you what's been marked
Plaintiff's Bxhibit No.4 and ask if you can identify that
for us?
A Yes, I can.
o What is that?
A It's a violation on the sand mound leaking.
o Did you reCleive this notice from Mr. Danner,
the sewage enforcement otfiCler?
A Yes, I did.
o Did he ever com. out and talk to you about
this?
A Yeah.
o Did he tell you that you were in violation of
some type of township ordinanc~?
A Yes.
o Wa. the reason for that because of sewage
discharge to the .urface ot the gxound?
A Yes. It was going along the road.
o Is that the same problem that existed and you
wrote to Oakwood about in 'ebruary of 1994?
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A Yes, it was.
Q Ha. the problem ever resolved itself in te~.
of the sand mound?
A No.
o Today, as we sit here, is your septio sy.tem
.till leaking, to the best you know?
A Ye., it is.
o I'm going to show you what'. besn marked
Plaintiff's Bxhibit No.5 and aek if you can identify that
for me?
Yes, I can.
What's that?
It'. a letter from the enforcement
A
o
A
production.
o This is from the new sewage enforcemen~
officer of Southampton Township, i. that correct?
A Yes.
o Basically telling you your system is still in
violation?
A Right, that I could be up for a fine if it
isn't resolved.
o Could you tell the ::Iudge why you haven't
fixed your sand mound? Tell him the reason.
A Well, right now, I don't have the .oney to
fix it, and they --
:a2
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1 should be water down there, and there was none.
2
Q
So, this is basically 80me type of test pit
3 that was dug to see where the water for the sand mound was?
4
S
A
Right.
Q
: I
i I
6 understand it, where it's supposed to be?
I gather that the water is not, as you
7
8
9
A
Right.
THB COURTI Is that the first picture?
10 sorry, Your Honor.
MR. TUROI That'D the first piClture. I'm
13
14
IS
16
17
18
19
20
21
:a:a
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25
11
1:l go thraugh?
THB COURTI How many pictures are we going to
MR. TUROI I was going to do them very
quickly. There'S probably twenty or -- I ::lust could say the
first, the second picture. Would that be helpfUl?
won't be Cllear.
BY MR. TUROI
A
Q
talking about?
A
Q
A
THE COURTI You'll have to or the record
l:
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"
,
What is the second picture?
That's the sand mound, where it's leaking at.
Doe. this show that pipe that you were
,
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Right.
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It's like a PVC pipe that stioks out?
Right.
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Q
And it's leaking around there onto the
~ surtaCle of the ground?
3
4
S
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7
8
9
10
11
12
13 BY MR. TUROI
14
15
16
17
18
Right.
A
Q
What does the third picture show?
A
That's where the water is draining down.
Q
The .ame thing with the tourth picture?
A
Yes.
Q
And the titth picture?
A
Yep.
Q
I'm 80rry?
A
Ye.. That's where it'. wet at.
THB COURT I Are we now on the sixth picture?
Q
The sixth picture is wet?
Om-hum, right there by the sand mound.
A
Q
The Beventh picture?
A
It'B the Bame place.
Q
Let's talk about the eighth picture here.
I,
19 What does thi. eighth picture show u.?
20
n
22
23
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A
That's a picture ot the septic tank.
Q
Is the cover off?
A
Right.
Q
This is your septic tank on your sand moun4?
'"
A
Right.
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Is this blue water?
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A Right.
Q When was this picture taken?
A That's two days after I had it pumped.
Q In other words, you've had a Beptic company
C10me out and pump this?
A Yes, I have.
Q And two days later it was filled up again?
A UlIl.hum.
Q Was it your understanding that that's not the
way it' s .uppo.ed to work?
A Right.
Q How ~ny times have you had it pumped in
1997?
A I had it pumped twice.
Q If you don't pump it, does water run out of
the top?
A Right.
Q The next picture shows the .ame thing?
A The .&me thing.
THB COURT I What number is the next picture?
THE WITNBSSI Seven.
MR. TUROI Seven?
THB COURT I No, I don't think so. I thought
we were up to eight, at least.
MR. TUROI I'm sorry. I'll count them. I'll
:af)
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4
5
6
7
8
9
10
11
12
13
14
1S.
16
17
18
19
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22
23
24
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--
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picture, but I'm not sure.
MR. TUAOI I'll get it right.
(Brief pause.)
BY MR. TUROI
o The thirteenth picture is the water in the
driveway. The tourteenth pictu~e shows what?
A The same, how it's like -- it looks like oil
ooming out of the ground.
o And the fifteenth picture?
A It's the Bame.
o The sixteenth picture shows -- is this the
edge of your driveway?
A Yeah.
o Where it connects to the road?
A Om-hum.
o And the seventeenth picture?
A It's the same.
o The eighteenth picture?
A It's the same.
o The nineteenth piClture here show.-- it look.
to be a water Clap of some type?
A Right.
o Is that where your water come. in from the
.treet?
A Right.
:a8
.
.
1 Q You're not here to .ay today that the leak
2 here i. n.c...arily the tault of Oakwood Hom..?
3 A No.
4 Q But you know that there's a leak?
5 A Right.
6 Q And the twentieth picture?
7 A It .hows the two trees that are in the front
8 yard that, from the leakage in the driveway, killed the two
9 tre.. in the front yard.
10 Q That'. the twentieth picture and the
11 twenty-first picture. How about the twenty-second and
1:a twenty-third picture.?
13 A It show. -- we dug a -- right in the
14 driveway, by the garage, we dug a hole, and there wa. wat.r
15 laying und.rneath the garage.
16 Q And the twenty-fourth picture, the sam.?
17 AYe..
18 Q And the twenty-fifth, is this your sand
19 mound?
:a0 A Yeah. That show~ where they Clut down the
21 tr.es and ::Iuet left the .tump..
:a:l Q The twenty-sixth piClture, again, .how. the
23 sand mound and the things sticking up?
24 A Right. It .hows, also, the land.cap. was not
25 don..
29
.
.
1 Q The lack of landscape. Starting with the
2 thirty-third picture, are these interior pictures of your
3 house and the various thingB that haven't been done?
4 A Yeah.
5 Q The thirty-third shows a door with .ome
fi cracks, is that what that is?
7 A Right.
8 Q The thirty-fourth the same, thirty-fifth the
9 same?
10 A Y...
11 Q The thirty-sixth?
1:l A That show., I gues., the mortar -- is that
13 what it is -- on the walls outside is cracking.
14 Q The same with thirty-seven?
15 A Right.
16 Q Porty shows the doors of the closet that have
17 fallen oft?
18 A Right, and that's in the living room.
19 Q What's forty-one .how?
:l0 A It shows there's cracks the whole way up the
21 wall. It shows where --
:a2 Q 'orty-two, more cracks on the wall?
:a3 A Right.
:a4 Q Forty-three, more C1racks on the wall?
25 A t7m-hum.
30
1
2
3
4 u.?
5
6
.
.
Q
Forty-four, more crack. on the wall?
A
Right.
Q
Porty-fiv. shows a sink. What's that showing
A
The caulking around the sink.
Q
The re.t of these are, again, just picture.
7 of the items that you've identified as incomplete or not
8 properly done?
9
10
A
Right.
Q
Do you recall at some point discu.sing with
11 people from Farmers Home and Oakwood the fact that the
1:a land.caping on your property was not, in fact, complet.d?
13
14
A
Right.
Q
Was money placed in e.crow to have that
16
15 Clompleted, to the best you can recall?
A
17
Q
I
J
I
I
18
19
:l0
21
22
A
Yes, it wa..
Do you remember how much that wa.?
I thought it was 2,000.
Q In that neighborhOOd. Wa. that .pecifically
placed in escrow with the Farmers Home Administration?
A Right.
Q And that land.caping wa. to be oompl.ted by
~3 Oakwood?
24
A
25 Oakwood Homes.
Right, b.fore the fund. was r.l....4 to
31
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8
9
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21
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Q Have they ever done the landscaping?
A They came out once, and they graded and
seeded. And at the time that the gentleman wa. grading and
seeding it, it wa. raining. Then the next day is when the
one Varmer guy came out and in.pected it, and he failed it.
Q Do you have a lawn to .peak about at all?
A No. Dirt.
Q You have dirt?
A Yeah.
Q Do you have any gra.s?
A No.
Q Has there been any leak. into your ba.ement
becau.e of the runoff from your property?
A We have some water underneath the orawl
.pace.
Q And I gather from the picture. and what
you've te.tified to there's water laying in your driveway,
as well?
A Right.
Q Again, has that been brought to the att.ntion
of Oakwood on more than one oClCla.ion?
A Yes.
THB COURT I How much money i. actually in
escrow?
MR. TUROI I be1i.ve it'. twenty-two __
3:l
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1
2
3
4
5
6
7 THB COURT I So that escrow oClcurred after
8 settlement?
9 MR. HBSS: At the time of settlement, Your
10 Honor.
11 MR. TUROI I don't think it happened at
12 settlement. It would have been much later than that.
13 Settlement was July of 1993.
14 MR. HBSSI It was right at settlement.
15 BY MR. TUROI
16 Q Angie, has Oakwood Homes completed your home
17 pur.uant to what you understood you vere to get for this
18 money?
19 A No.
20 Q Is the home in the condition that you
21 expected it to be when you paid for it?
22 A No.
23 Q The probl.ems that you identified, have they
24 been ongoing since February of 1994?
:as A Yes.
MR. HBSSI Twenty-two hundred dollars.
MR. TUROI Twenty-two hundred dollar. .
THB COURT I IB that stipulated to?
MR. TUROI Yes.
MR. HBSSI We'll be submitting the actual
e.crow document, Your Honor.
33
'.
.
.
1
Q
Has the condition ot the septic system
2 oreated any health concern. tor you or for your family in
3 terms of having sewage out on the ground?
4
A
Not yet.
5
6
7
Q
I'm sorry?
A
Not yet. I hope not.
Do you let your kids play out there?
Q
8
9
A
No.
MR. TUROI I have nothing else at this point,
10 Your Honor.
.
11
1:a
THB COURT I May I ask one question, Mr. Hess,
before you .tart. From whom did you buy the lot that the
I,:
13 house is on? Was that bought from Oakwood, also?
14
15
16
17
THB WITNESSI Yes.
THB COURTI And wa. that bought first?
~
THB WITNESS: Yeah.
,
I
~
MR. TUROI I believe it might have been part
18 of the whole package.
19
20
21
:l2
23
:l4
THB WITNESSI It was like the whole package.
, ,
THB COURTI All right.
Mr. HesB?
MR. HBSSI Thank you.
,'"
CROSS-BXAMINATION
BY MR. HBSSI
,,,'f
Q
Me. Carbaugh, you got a 'arm Home loan, and
:as you mentioned you live with your two children. Who el.e
34
10
11
12
..
.
1
2
3
4
5
6
live. there?
A My boyfriend doe..
Q Your boyfriend live. there?
A UlIl-hum.
Q When did he move in with you?
A I'd say maybe about six months after we moved
in. I called Oakwood -- or I called ParmerB Home and told
7
8 them that he was living there, and that'B when they put him
9 on the hou.e payment.
Q
He's not here today, I take it?
No. He couldn't get off work.
Do you recall Mr. Zook from Oakwood Home. and
A
Q
13 Ron Kraszewski from Parm Home coming out to your house and
14 inspecting things with you?
15 A Right.
16 Q Do you remember when that wa.?
17 A No, I can't recall.
18 Q About Pebruary of '95, doeB that sound around
19 the time? April :aOth of '95?
20 A r don't know.
21 Q Do you recall the list that you gave them at
22 that time of things that were wrong with your home?
23
H
25
A
Yeah.
"
Q Doe. this look like a list of the copy of the
things that you gave them wrong with your home?
j
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,
"
1
35
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2
3
4
S
6
7
8
9
10
11
12
13
14
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18
19
20
21
22
:l3
24
:lS
.
.
A I'm not sure.
Q You are not sure?
A No.
o Is that your handwriting?
A Yes.
THB COURT I Is that to be marked a. an
exhibit?
MR. HBSSI Yes. I would like it marked as
Plaintiff's Bxhibit 1.
THB COURT I Defendant's Bxhibit 1.
MR. HZSSI I'm sorry. I'm usually on the
other side. Defendant'. Exhibit 1.
THB COURT I We'll take a moment and have that
marked by the .tenographer.
(Defendant'. Bxhibit No.1 waB marked for
identification.)
BY MR. HZSSI
Q Do you recognize thiB as your writing?
A Yeah.
MR. HBSSI This has been marked and
identified. I'd like to ofter it into evidence at this time
for the Court to view while thi. testimony is underway.
THE COURT I Mr. Turo?
MR. TUROI I have no ob::lectioll.
THB COURT I You are moving for it. admission?
36
.
.
1 MR. HBSSI Yes.
2 THB COURT I No ob::lection, Mr. Turo?
3 MR. TUROI No.
4 THB COURT I Defendant's Bxhibit 1 i.
5 admitted.
6 MR. HBSS I Thank you.
7 (Defendant's Ixhibit No.1 wa. admitt.4.)
8 BY MR. HBSSI
9 Q Ms. Carbaugh, ar. tho.e your initial. to the
10 right of the various item.?
11 A Yeah.
12 Q You had mentioned that in ,.bruary of '94 you
13 provided the Court with a list of things that were wrong.
14 Now, you .ay you .ent this list to Oakwood Home.?
15 A Ye., I did, by lllAil.
16 Q This looks like the original right her..
17 What did you send th~?
18 A I ..nt them a copy.
19 Q Th. item. on this li.t -- l.t'. .... No.1,
20 .and mound needs fixed. You don't mention that anywh.re
21 here on this li.t, do you?
:l2 A No.
23 Q Toilet paper holder came out of the wall.
24 That'. al.o not on thi. li.t. No.3, garage door Deed.
25 fix.d, that corr..pond. with No. 6 on thi. li.t wbicb you
37
, "
.
.
1 .igned off on?
:a A Right. It was working when he left. Ye..
3 Q When you testified that nobody came out to
4 fix anything
5 A No. I said he came out, and he did fix the
6 door, the garage door.
7 Q So, Oakwood did come out and make repair.?
8 A Right, the garage door.
9 Q No.4, closet doors in bathroom and living
10 room need fixed, that doesn't correspond. Again, that'. not
11 on the list that you covered in April of '95?
12 A They also were in my house, and they Been
13 what -- I told them verbally what needed to be done, also,
14 other than this list.
1S Q But this is the list you taxed to -- or you
16 .ent to Parm Home, which then taxed it to Oakwood?
17 A Yeah. I gave it to Parm Home.
18 THB COURT I What list are we talking about
19 now, Defendant's Exhibit 1?
20 MR. HESS: Yes. This iB the list as of April
21 2:lnd of '95.
2:a THE COURT: Wait. We didn't get an answer to
:a3 that. I don't think we have a date yet for that list. Do
24 you know when Defendant'. Bxhibit No.1 wa. .ent or given to
25 Oakwood Homes?
38
BY MR. HBSSI
Q
you?
A
Q
A
Q
.
.
39
.
.
1 MR. TUROI Just so I'm clear about that.
2 BY MR. HaSSI
3 Q Did you make these marks to indicate these
4 things had been fixed?
5 A I guess that's what it means. I don't know.
6 Q You don' t know? You don't remember?
7 A I don't remember.
8 Q You don't remember, okay. Seven, eight, nine
9 and ten of your earlier list, again, do not appear on what
10 you've identified as a later list?
11 A Nine doe..
12 Q Nine doea?
13 A UlIl-hum.
14 Q Oh, I'm aorry. Tank alarm going off, that
15 corresponds with No. 11.
16 A And the landscaping does.
17 Q And the landscaping, that would correspond
18 with No. 12, yard not done?
19 A Right.
:aO Q What you meant by that ia there'. no grass
21 growing, is that --
:a2 A Right. The landscaping wasn't done.
23 Q Okay. Ms. Carbaugh, I have picture here I
:a4 would like you to identify. There are six pictures. As she
:as identifies them I would like them marked Defendant's
40
:',
.
.
1 Bxhibit.:l through 7 -- I'm .orry, 2 through 6. Are the.e
:l picture. at your hou.e?
3
4
5
6
7
8
9
10 MR. TUROI Can we identify when the.e
11 piClture. were tak.n and who took them?
12 MR. HBSSI I'll identity that with my
13 witn....
14 MR. TUROI Well, you're a.king her to
lS identify this Btuff.
16 MR. HBSSI She'. identifying that it'. her
17 house with her yard and gra.. growing in it. That'. all I
18 want right now to be identified.
19 THE COURT I May we get th.se marked as we
20 show them to her. Are they all of the front lawn?
:al MR. HBSSI Ye..
:a:a (Defendant'. Bxhibit No.. :l through 6 were
:a3 marked for identification.)
:a4 THB COURTI 'or the record, I believe .ome
2S item. have been marked a. Defendant'. Bxhibit. 2, 3, 4, 5
A Ye..
Q Are they picture. of your front lawn?
A Ye..
Q I. the gra.. growing?
A Somewhat.
Q Somewhat?
A Um-hum.
41
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2t
25
..
...
and 6. I. tha~ correct?
MR. HISS I
THI COURT I
That'. correct.
Tho.e are photograph. of the
front lawn?
MR. HaSSI Ye.. They have been identified by
M.. Carbaugh a. picture. of her tront yard with gras..
THB COURT I All right.
BY MR. HESSI
Q I have two other picture8. Ms. Carbaugh,
could you identify them? Let me a.k, i8 that also pictures
of your front lawn?
A Yes.
Q Doe. that fairly represent the condition of
your lawn as it is tOday?
A Yes.
MR. HaSSI I ask that the.e be marked a.
Defendant'. Bxhibit. 7 and 8.
(Defendant'. Bxhibit Nos. 7 and 8 were marked
for identification.)
MR. HISS I We have submitted Defendant'.
Ixhibits 7 and 8, which Ms. Carbaugh ha. identified as her
front lawn and the pictures representing the condition of
the front lawn a. it is today.
BY MR. HBSSI
Q Ms. Carbaugh, do you keep any dirt bike.
u
~ ,
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.
1 around the hou.e?
2
3
4
5
A
No.
Q
No?
A
Not
Q
No dirt bike.. Do you know who.e dirt bike.
6 tbo.e are propped up against your hou.e?
7
THB COURT I We'll have to indicate that
8 .omething i. being .hown to the witn.... Why don't we mark
9 the.e and then have them shown. That way they can be more
10 e~.ily identified.
11
MR. HBSSI Defendant'& Bxhibit 9.
12 (Defendant'. Bxhibit No. 9 wa. marked for
13 identification.)
14 BY MR. HBSSI
15
16
17
18
19
:aO
21
2:a
23
Q Dete~dant'B Bxhibit 9 ha. been marked. I'm
a.king Ms. Carbaugh if .he can identify -- fir.t of all, i.
that the .ide of your hou.e?
I I
~ I
j. i
I
A UlIl-hum.
Q
Who.e dirt bike. are tho.e?
A
They were my boyfriend'..
,1';1
Q
Does he .till have them?
II
A
No.
Q
When was this that he would have gotten rid
:l4 of tbe.e dirt bike.?
2S
A
Oh, my, it's been year.. A couple of year.
43
--
.
1 bike. were there?
2
3
4
5
6
A
I was, yeah.
Q
Was he living there?
A
That's when he moved in.
o
When wa. that, again, that he moved in?
He moved in eix months after we moved in.
A
7
8
9
Q
The summer of '94?
A
Right.
o
And then at what point -- do you remember
10 when he got rid of the bikes?
11
A
No.
1:a MR. HBSSI You testified that you entered
13 into an escrow agreement. We'll mark this a. Defendant'.
14 Bxhibit 10.
15 (Defendant's Bxhibit No. 10 was marked for
16 identification.)
17 BY MR. HBSSI
18
Q
Would that be a true and correct C10Py of the
19 escrow agreement you entered into?
20 A UlIl-hum.
:al Q Thi. is an e.crow agreement dated Juuary
22 7th, 1994. M.. Carbaugh, i. that your .ignature?
:a3 A Yes, it i..
:a4
Q
Is this agreement
how muoh. doe. tbat )&a..
25 for the grading and seeding of your lawn?
"
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4!5
1
:a
3 2,000 u
4
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,
I,
I
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I.
A
It .ay. estimated ClO.t $500.00.
Okay. So, when you testitied it wa. around
Q
A
What's that?
1
'I
6 e.crowed for the lawn, but there's 500 a. an estimated cost,
Q
You had testiUed earlier that it wa. 2,000
7 and $1,000.00 has been escrowed, would that be correct?
8
9
10
11
1:a
Yeah, I gue8s.
A
Q
Well, it you don't know, say you don't know.
I don' t know.
A
Q
If you don't know.
THB COURTI I'm afraid I've gotten confu.ed.
13 I heard a figure of $1,000.00 and a figure of $SOO.OO.
14
MR. HESSI I think if 1. move this into
1S evidence at thi8 time, Your Honor, YOU'll be able to ....' I
16 believe what occurred here was the e.timated co.t wa. SOO,
17 howeve~, typiClally, twic. the amount of the e.timated co.t
18 is escrowed, 80 it was 1,000 that was escrowed. I would
19 like to move it into evidence at this time.
:ao
21
MR. TUROI No ob::lection.
THB COURTI Defendant's Bxhibit 10 i.
:a:a admitted.
:a3 (Detendant's Bxhibit No. 10 wa. admitted.)
:a4 BY MR. HISSI
2S
Q
M.. Carbaugh, wa. the telephone ditch
46
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5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2S
~
.
C1ompleted?
A
Ye.. I had tami1y members come up and dig it
for me.
Q The family member. dug your telephone ditch?
A Right.
Q How about the four trees aro\md the septic?
A Like I said, Oakwood -- Jerry came up. He
sawed them down, but left the stumpB there.
Q How about tront service walk?
A I don't know.
Q You mentioned the problem -- in Pebruary of
'94, I believe, right after your settlement, you mentioned
that one of the three -- did you say there were three pipes
coming out of the ground?
A Om-hum. There's a total of six ot them.
Q Would it be fair to characterize them as PVC
pipes that come --
A I don't know. I don't know.
Q Plastic? I mean, is it metal, plastic?
A It'8 plastic.
Q How high out of the ground do they come,
approximately?
A I don't know that either.
Q Are they on the ground, are they ten feet in
the air, or are they ::lust somewhere in the middle?
47
12
13
14
15
16
17
18
19
2Q
21
:a2
23
24
2S
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A
Somewhere in the middle, I gu.... I don't
2 know.
3
Q
You don't know how __
4
A
They might -- I don't know how high, but
S that'. about a. high a. they are.
6
Q
In other words, they're not flush with the
7 ground and th.y're not ov.r your head?
8
9
A
Right.
Q
You mentioned that liquid was coming out the
10 top of the pipe along the -- did you say the cap cam. off or
11 around the cap, or where was it coming out?
A
There waB an incident wh.never the cap blew
off. I called PmHA, and th.y told me to call Oakwood Home..
Oakwood Home8 8ent . guy out, and they, I gue.s, glued the
pipe.
Q Th.y fixed it?
A Right, but the leakag. i. l~aking out of the
i
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I: I
I:
, '
'I'
I!
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ground.
Q Currently?
,
,
,
"-
,
A Right.
Q So, previously, when you said that Oakwood
Home. never did anything, th.y did com. out and glue __
A That'. it.
ii
,\
i
j:
,
,\
t
"
,
~ 1
(
I' ,
, .)\
"-, ,
:.;;/
I "~L;_
,. 'Vi.
Q Th.y glu.d that back on. But it'. .omething.
You t..tifi.d b.for. they hadn't don. anything. So, they
48
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
:a:a
:a3
:a4
25
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did do .om.thing?
A Yeah, I gu....
Q Well, th.y eith.r did or th.y didn't. Did
.omebody com. out trom Oakwood Home. and fix the -- you said
the cap blew off?
A Right.
Q Did Oakwood Homes caus. that to be fixod or
didn't they?
A Well, they glued the cap on, I guess, y.ah.
Q So, ye., they fixed the cap. I want to b.
clear on .omething. HO~1 many written notice. did you give
to Oakwood Home. prior to January 7th, 1995?
A I don't know.
Q You don't know how many written notice. you
Slave them?
A No.
THB COURT: Wa. January 4, 1994, the date of
the settlement?
THB WITNESS I Yeah.
BY MR. HBSSI
Q Do.. that letter look familiar to you?
A Ye., it do...
MR. HBSSI The date ot this letter i.
I would like to mark this a. Defendant'. axhibit
6/13/94.
11.
49
.
.
1
2
3
~
r '
l
(Detendant'. Bxhibit No. 11 was marked for
identification,)
BY MR. HBSSI
Q
This letter says, I, Angie Carbaugh, hereby
S terminate the change order dated 1/7/94. In that, would you
6 be reterring to Detendant's Bxhibit 10, the escrow agreement
7 dated 1/7/94? Do you remember what thiB letter regarded?
8 A No, I don't.
9 Q You don't remember why you wrote it?
10
.
A
I know PmHA gave them three exten.ions to do
11 the land.caping. It wa. not done, and I wrote that and told
1:l them that I wa. going to go ahead and get somebody el.e to
13 do it.
14
15
16
Q
Did you get somebody el.e to do it?
A
No, not yet.
Q
Did you take any .teps towards getting
17 .omebody to do it?
18
A
What do you mean?yDid you do anything toward.
19 trying to improve your lawn at that point?
20
A
I had a couple ot contractor. come out and
:l1 give me estimate., and they told me the only way that gra..
2:a would grow i. if I got topsoil and laid down. I also C1alled
23 PmHA.
24
Q
Did your boyfriend ever rent equipment to do
:as the work?
so
1
I
I :l
:3
4
5
6
7
8
9
10
11
1:l
13
14
15
16
17
18
19
20
21
22
:l3
24
25
"
.
A No.
Q Did he ever receive a check from 'arm Home?
A
I got one
I got one check from 'armer.
Home, but I took it back in the next day.
Q What was that check for?
A I was going to rent. equipment to do the lawn
myself. And they called and Baid that Oakwood Home. wa.
doing something, and they a.ked it I could return the check,
.0 I returned it to them.
Q When I asked you a minute ago, did you take
any steps towards improving the lawn, you oaid no, but now
you did. You were going to go out and rent equipment?
A Yeah.
MR. HBSSI I have no further que.tion.. I'll
reserve the right to recall her at a 1at.r time.
THB COURT I Mr. Turo?
MR. TUROI Just a couple ot follow-up, Your
Honor.
RBDIRBCT BXAMINATION
BY MR. TUROI
Q Through this whole ordeal you've been
through, would it be fair to say that letter. that you
wrote, et cetera, Parm Home people told you when to write
them and how to write them?
A Right.
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Q This is not really your area of
comprehension, is it?
A No. I don't know nothing about it.
Q For example, this letter you wrote June 13th,
'94, you don't even really know what a change order i.?
A No.
Q Just so we're absolutely clear --
A I wa. in PmHA when I wrote that letter.
Q You sent thi. letter to Oakwood Homes in
Pebruaryof '94 concerning the sand mound?
A Right.
Q Did they ever fix the leakage of the sand
mound since then?
A No.
Q Would it be tair to .ay that you've made,
over the cour.e of the last several years, several li.ts of
problems that you've discovered in your home?
A Yes, I have.
Q And you've given them to them, ian't that
true?
A I sent them, yes.
Q You've even given some of them, I ;U.s., to
'armer. Home?
A Parmers Home.
Q And 'armers Home told you to do that,
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Right.
Q
You haven't done anything here other than
3 what 'Armer. Home told you to do?
4
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A
That's right.
Is that a fair 8tatement~
Q
A
Right.
Q
Do you have a lawn today?
A
No.yDid parmers Home say to you, we're going
9 to give you this $2,000.00, and you can go out and take care
10 of thi, problem yourself?
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No.
Q
So, they never otfered you the $2,OOO.00?
Right. They told me that that $2,000.00 wa.
14 in an e8crow account that I couldn't touch.
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$:l,200.00?
BY MR. TUROI
THB COURT I Are we talking about the
MR. TUROI The $2,:a00.00, ye..
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fix the property?
Q So, no one ha. .aid, here'. the $:l,200.00,
A Right.
Q And if they gave you the money, I gue.. you
would do that it you could?
A Right.
MR. TURO: That'. all.
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THB COURTI Mr. He..?
2 RBCROSS-IXAMINATION
3 BY MR. HISSI
4
Q
I want to be Cllear. What notice. did you
5 give in writing prior to January 7th, 1995? Your re.pon.e
6 to me previously was I don't remember. Now Mr. Turo is
7 a.king, and you said you sent several. Do you know what
8 written notices you .ent prior to January 7th, 1995?
9
10
A
Did I what? I don't under8tand the question.
Q
What written notico. did you Bend to Oakwood
11 Home. prior to January 7th, 1995?
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I sent them a couple of lists.
13
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15
Q
Which one. did you send?
A
This one wa. the first one that I .ent.
Q
That wa. the tirst one. That'. Plaintiff'.
16 Bxhibit:a you're reterring to?
17
A
Right.
18
Q
What wa. the next one you sent?
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I don't have them here. I don't know.
Q
You don't have them. You don't know. In
21 answer to Mr. Turo, you said 'arm Home never offered you any
:a:a
of the $2,:a00.00, but you told me that you had a check from
them?
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Right.
Q
I gues. I'm confused. You said that they
54
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1 didn't ever offer you any of the :a,200, but at one point in
:l time you had a check from them?
3 A Right.
4 Q Well, which is it? Did they at some time
5 offer you part of the :l,~OO?
6 A No, they didn't.
7 Q Well, where was the check from?
8 A It was from Parmers Home.
9 Q Repre.enting what? I mean, what money did
10 that come out of? Was it the escrow money, or did they, out
11 of the goodness of their hearts, send it to you?
1:a A I'm not Bure.
13 Q You're not Bure. But you did receive a oheck
14 from Parm Home at one point in time?
15 A Right, but I took the check back down. I
16 didn't cash it or anything.
17 MR. HBSSI Than~ you. I have nothing
18 further.
19 MR. TUROI Nothing els., Your Honor.
20 THB COURTI All right. You may step down. I
21 would ask that all of the Plaintiff's exhibits -- I believe
:a:a it's 1 through 8 -- be moved into evidenoe.
23 MR. HBSSI I would like to take a quiok look
24 at the photographs.
:a5 (Brief pause.)
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MR. HBSSI I don't have an ob::lection to any
:l of Plaintiff's exhibit., Your Honor.
3
THB COURTI All riJht. With re.pect to the
4 photograph., which wer.e __
5
6
MR. TUROI That's P-1.
THE COURTI -- Plaintitf'8 Exhibit 1, not all
7 of those photographs were identified during the cour.e of
8 M.. Carbaugh'a testimony. But to the extent that they were,
9 that item is admitted.
10
MR. TUROI I think you'll be able to sort
11 them out by looking at them.
THE COURT: I made a note of whiClh one. were
referred to and which one. were not, so I think I can, alDO.
Plaintitf's Exhibits 1, 2, 3, 4, 5 -- now, I do not have a
note as to Plaintiff's Exhibit 6 and 7.
MR. TUROI No. They're coming in through Mr.
Chemberlain, Your Honor.
THB COURT: All right.
MR. TUROI It'B 1, 2, 3, 4 and 5 at this
point.
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(Plaintiff'. Exhibit No.. 1, 2, 3, 4 and 5
were admi t ted . )
THB COURTI May we take a brief rece.s, and
then We'll reconvene.
MR. TUROI Certainly.
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(Brief rece.s.)
HR. TUROI I'm calling Mr. Chamberlain to the
8
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Q State your full name for the record, sir.
A My name is David Phillip Chemberlain.
Q And .pell your last name.
A C-h-.-m-b-e-r-l-.-i-n.
Q How are you employed, Mr. Chemberldn?
A I'm employed with the U.S. Department of
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3 .tand, Your Honor.
4 DAVID P. CHAMBBRLAIN
5 having been duly sworn, testified a8 follows I
6 DIRBCT BXAMINATION
7 BY MR. TUROI
14 Agriculture, Rural Development. This agenoy was formerly
15 'armers Home Administration, one and the same.
16
17
THE COURT: Parmers Home?
THE WITNBSSI Parmer. Home Admini8tratlon,
18 yes, Your Honor.
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THB COURT I
And the apostrophe is where on
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'armers, or i. there none?
THB WITNBSSI
None.
THE COURT I
Thank you.
BY MR. TUROI
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Q
What is your title with thi. administration?
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A
I'm currently a construction analyst.
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1 Q Would you explain to the ::Iudge exactly what a
2 C1onstruction analyat is?
3 A When our agency is involved with lending
'4 money for any type of new construCltion, it's my
S responsibility to review the plans and specification.
6 indications for conformance with the codes and our
7 regulations internal in the agency concerning the
8 construction tor the lending, and subsequently, in th~
9 fiald, to monitor the progress of the construction, to
10 assure conformance with the codes, with the plans, with the
11 specifications, also to identify completion of work,
1:l percentage. of completion, so that adequate payouts can be
13 made on a regular basis.
14 Q Have you been .0 employed in this capacity
15 for a number of years?
16 A Yes, I have, since September of 1985.
17 Q Have you been doing a similar type of work in
18 terms of analyzing construction contracts, et cetera?
19 A Yes.
20 Q In that capacity, do you also estimate
21 deficiencies and costs of repairs, et cetera?
:a2 A Ye., we do.
23 Q Have you been called -- let me ask you this.
:a4 When did you tirst get involved in the case dealing with Ms.
25 Carbaugh'. home in Cumberland County, Pennsylvania?
(
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1 A In January ot 1996, I received a reque.t trom
:a one ot our field otficers in York that currently maintains
3 the loan docket for M.. Carbaugh's property. The reque.t
4 was to make a field visit and verify the conditions as they
5 existed then for the beneti,t of the agency.
6 Q What was the reason that the original reque.t
7 C1ame to you?
8 A If any of - - whenever any of the loan
9 specialist. in the tield offices reach a point where
10 technical details o~ con.truction items seam to be beyond
11 them, it's quite a prudent decision to call the program
12 support staff, of which I am a member. We have two -- we
13 have one architect, two engineers and a number of
14 con.truction analyst.. And I Berve thi8 area in south
15 central Pennsylvania, .0 it would be in my area and in my
16 job description to do ::lust that.
17 Q Just so we're clear, the initial contact for
18 your site review wa. not made by Ms. Carbaugh, waB it?
19 A That i. correct.
20 Q In fact, she doesn't have any authority to
21 ask you to do anything?
:a2 A That is correct.
23 Q The agency that I guess actually started this
:l4 whole loan process asked you to become involved?
25 A Yes, they did.
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1 Attached to that, of cour.., wa. the ..crow agr.em.nt, the
2 ..a.onal C1hang. ord.r, if you will, li.ting .om. item. that
3 w.r. incomplete at that tim.. B.ing January of 1994, tho..
4 ext.rior it.m. could not b. complet.d, therefor., it would
S b. cu.tomary to id.ntity probable cost, and then our
6 r.gulation. double that probable co.t and r.tain that &mOunt
7 of mon.y in ..crow with the int.ntion of paying the
8 contractor in full when all of tho.. item. would be
9 completed.
10
THE COURTI May I a.k a qu..tion. Thi. i.
11 called a chang. ord.r, but I gather the only Change invo1v.d
1:a i. the timing of the work?
13
THB WITNBSSI That i. corr.ct. It'.
14 ..a.onal.
15 BY MR. TUROI
16
Q
In other word., you Clan't do land.caping in
17 January?
18
19
A
That i. correct.
Q
Now, i. it typical in this type of .ituation
:l0 for a hom.owner to di.cover additional problem. cnce they
21 actually move into a home and begin functioning within the
2:a hom.?
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25
A Y.., it i.. Any new home can have minor
problem., d.f.ct. that .how up and .0 on. And th.y, of
cour.e, ar. all ~over.d under the bui1d.r'B warranty that
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would be issued at the same time.
Q Now, when you went out -- -- well, do you
know what the date ot your first visit was?
A Yes, I do. The date of my first vi.it w..
January 31et, 1996.
Q Let me show you what's been marked
Plaintiff's Bxhibit Nos. 6 and 7. Are these copies of your
inspection reports?
A Yee, they are.
Q Have you, in fact, done two?
A Yes.
Q Let's turn to -- unfortunately, it's
misnumbered, but Plaintiff'. Bxhibit No.7. Is that the
first inspection you did?
A Yes, it ie.
Q Can you tell the Court what you found when
you went out and inspected, and what was the date ot the
inspection?
A The date of the inspection was January 31st,
'96.
Q What did you tind -- i. this the firet time
you visited this home?
A Y_s, it wa..
Q Can you tell us what you found?
A Based on the review of the file with the
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1 letters from Ms. Car:'augh and the .ubsequent corr..pondenc.
:a in there and, of course, the communication that Me. Carbaugh
3 had with that county office, there were some things that
4 were incomplete, and tho.e were the specific items that I
S went and looked for, and they are reported on this to~.
6 Q And thie form that we have here, thie lists
7 all of the defects that you discovered?
8 A Yes, it does.
9 Q Was it your understanding, ba.ed on your.
10 regulations and review and everything else, that these were
11 all items that were suppo.ed to have been Clovered under the
1:a original contracting warranty?
13 A Yes.
14 Q Can you ::lust briefly read down through .ome
lS of the.e items BO that we're clear on what we're talking
16 about?
17 A Surely. Contractor ha. failed to respond to
18 reque.ts to complete his work. One item, repaired loo.e
19 stUCClO on the exterior of the foundation. My note is that
20 it would be repairable. This is concrete masonry stuooo
a1 that was applied to the exterior of the block wall, and it
2:a had not adhered, so it should be a repairable item under the
:l3 builder'. warranty.
:a4 Also, replace the concrete pad on the rear of
2S the home. Thi. i. the stoop out.ide of the rear door.
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1 Surfac. i. unacoeptabl.. The recommendation i. to replac.
2 that pad.
3 Interior in the hom., various drywall
4 imp.rf..ctions, mo.tly at the metal corn.r bead. and the
5 tap.d corn.r.. Thi. i. .omething that can very, v.ry oft.n
6 happ.n, and e.pecially wh.n you view the time frame in whiClh
7 thi. home wa. finalized during the fall and winter month..
8 Drying for interior fini.h work would be at a premium, .0,
9 therefor., it'. not at all unu.ual. It'. an .a8ily
10 r.pairabl. item.
11 Item D, the door frame to the Bedroom No. 3
12 wa. not .ecur.d properly. That we. di.cu...d earlier by M..
13 Carbaugh. The front entry door latchplate 8hould be
14 r.placed and the frame repaired.
15 Page 2, the garage floor lack. provi.ion. for
16 drainage of liquid.. I had left a reter.nc. from one of the
17 cod.., from the code that we utilize with .ingle-family
18 hou.ing, as it r.late. to garage floor drainag.. In thi.
19 ca.., no floor drain. are obs.rved, and, in fact, water i.
:a0 d..cribed upon near the c.nter of the floor. Without a
21 floor drain provided, it i. reClommended that a hole be
:a2 provided through the floor into the bedding .tone at a low
23 point in the Cl.nter of th. garage floor.
:a4 Item G, Ms. Cerbaugh, b.ing the borrower, ha.
25 agr..d to repair or replace the garage door a...mbly that
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1 waa damaged in u...
2 L.tter H, fine grading that wa. done ia not
3 .cc.ptabl.. The s.eding i. marginally e.tabli.hed, and that
4 was evident .t that particular tim.. It did not app.ar that
5 mulch was utilized .. specified in Attachm.nt A to the
6 de.cription material.. And the de.oription material. i. a
7 li.t of .pecification. that'. pr.pared in con::lunotion with
8 the borrower and the contractor which .pecifi.. ev.rything
9 that will b. utilized in the con.truction. Overall, the
10 l.nd.cape effort. are not acc.ptable.
11 The next item, driveway aClce.. off ot
1:a town.hip road ahould have. culvert. That wa. my
13 r.oommendation. That is not an item that w.. in the plana.
14 B.yond that, $2,000.00 or more remains in ..orow. Borrow.r
15 desir.. to have the work complet.d by his own .ffort. or
16 with hired labor or equipm.nt. I provided to the borrower a
17 uketch of prench drain detail. tor their u.e to alleviat.
18
19
water .eepag. in unde.irab1e location., .uch a. the driveway
in the vicinity of the aand mound control.. I would alao
20 add there around foundation if n.c....ry.
21 Recommend that borrow.r develop. plan to
22 correct all defici.ncie. and pre..nt it to the V.I.D.A.
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25
Servicing Office a. a reque.t to utilize the eaa~owed f.....
That wa. the end of that r.port.
Q
You indiClate on the in.peCltioD repo~t tbat
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1 these were items that the contract had failed to complete?
2 AYe..
3 Q And, again, it was your understanding, based
4 on your review of the record and the documents, the
S contractor and warranty, that the contractor wa., inde~d,
6 responsible for all of this?
7 A Yes.
8 Q Did you, on that date, have an occasion to
9 review the situation with the .eptic .ystem?
10 A We did briefly, but that particular date was
11 shortly after our January snow that time. It was well
12 covered over with snow. It was not visible as t.o the
13 se.page, therefore, I was not able to make much of a
14 determination on it. We discu.sed it with Ms. Carbaugh,
15 under.tood that there were problems with the normal
16 functioning of it. It wa. not functioning normal.
17 Q Was it your understanding from reviewing the
18 file that this matter of the .eptic system had been an
19 ongoing issue?
20 A Yes.
:al Q Did you go back out again to Ms. Carbaugh'S
22 house for a second inspection?
23 A Yes, I did.
:a4 Q And that would have been on what date?
25 A 'ebruary :a5th, 1997.
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1 Q Is your inspection report of that date
2 Plaintitf's Bxhibit No.6?
3 A Yes, it iB.
4 Q Had any of the deficiencies that you ::lust
5 noted been repaired by the contractor?
IS A No, they had not.
7 Q Can you tell the ::Iudge what you found on
8 Pebruary 25th, 1997?
9 A This one's a little shorter, so I'll read it.
10 Deficiencies noted on the January 31st, 1996, inspection
11 have not been corrected. Al~' had been identified as
12 repairable under the builder'S warranty dated January 7th,
13 '94, by Oakwood Home.. Additionally and thi8 was an item
14 brought up at thiB second inBpection additionally, the
15 front eillcoak is not a trost-proof type and has frozen and
16 ruptured. That'. something that only came to light after
17 serious frost, super cold weather. Why it had not happened
18 before is anybody'~ guess, but it was evidently not a
19 frost-proof type.
20 Also, the kitchen counter and backspla8h
:a1 ::Ioint is excessive, and the caulking, as applied, has
:a:a failed. I didn't really have an explanation for that,
:a3 except if the base cabinets may not have been well secured
:a4 to the wall shrinkage in the subfloor structure, that may
:as have allowed the cabinets to settle, whereas the backsplash
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1 wa. att.ched to the wall studs. Th. bottom line i. the
:a baClkspla.h and the counter top were two separate units.
3 That i. not unusual. If well secured and the ::Ioint caulk.d,
4 it mak.s a watertight a...mbly, and it should stay that way.
S In this cas., it didn't. In fact, the entire wa. -- the
6 entire base cabinets and counter top, at lea.t on the
7 right-h.nd .nd, were very loo.e, 80 that was a problem.
8 At this time, a principal concern i. the lack
9 of sit. stabilization and fini.h work. Without .oil or
10 ground cover Buch a. lawn turf, land.caping, bank
11 stabilization, the site continue. to erode and direct. .torm
12 flow. toward the structure and toward the ..wage dispo.al
13 sand mound. My r.commendation is that regrading will be
14 nec....ry th.re. The soil ClharaClteristic. are sandy, loose
15 on the .urface, with appar.nt low nutri.nts. The.e
16 circum.tances can be mitigat.d aft.r regrading with the
17 placing of tour inch.. or more of top.oil, ..eding,
18 fertilizing and mulching. And the ettort there i., of
19 cour.., to e.tablish . lawn area of .11 of the di.turbed
:ao ar.a di.turbed during the n.w construction as originally
:a1 idtintified in the contract document..
:a2 Q Did you have a chanc. to again vi.it the
:a3 issu. ot a .and mound wh.n you went out in Pebruary?
:a4 A Y.., we did. A. M.. Carbaugh had indicat.d
:as earli.r today, the malfunctioning continues. Th. day I wa.
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1 th.r., that particular day in late Pebruary that I was
2 th.r., th.r. wa. vi.ual l.akag. out ot the ba.. of the .and
3 mound, going toward the road ditch, typical gray water from
4 .emi-proc....d ..wage.
5 Q Ba.ed on your ob..rvation. of this property
6 and your reports, ar. you pr.pared to indiClat. to the United
7 Stat.. Gov.rnm.nt that this property ha. be.n complet.d
8 pur.uant to the contract and the warranty?
9 A No.
10 Q Do the.e d.ficiencie. need to b. complet.d
11 b.fore you would aign off on that?
12 AYe..
13 Q Including the .and mound?
14 A D.finitely.
15 Q Have you been able to baaically anticipat.
16 the cost to correct the defici.ncie., including the .and
17 mound'
18 A Y.., I have. I have not gotten any
19 e.timat... How.ver, I do know that, in on. r..p.ct, Ma.
:ao Carbaugh has gott.n e.timat.. from .om. ind.p.ndent
:a1 contractors on the
:a2 MR. HISS I I'm going to ob::l.C1t to hi.
:a3 testifying to what .h. might have r.ceiv.d from .~ody
:14 .la..
25 THB COURTI Mr. Turo?
69
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1 BY MR. TUROI
2
Q
I'm not a.king for tho.e ..timat... I'm
3 a.king if you have be.n able to put a figure on the amount
4
5
of mon.y n.c...ary to corr.ct this problem?
A
Ye., I have. Prom my .xp.rienc., I b.lieve
6 they're relevant.
7
8
Q
What i. the figur.?
I would .ugge.t -- and not knowing the total
A
9 .xt.nt ot the d.fici.ncy in the .and mound -- to either
10 corr.ct that one or to ..tabli.h a .econdary .and mound on
11 an already identifi.d .ite on the prop.rty, probably a range
1:a of 4 to $5,000.00.
13
14
15
Q
por the .and mound?
A
Por the .and mound.
Q
How about for the total defici.noy, inClluding
16 land.caping?
17
A
I would ..timat. the land.oaping to include
18 the r.grading n.c....ry, the top.oiling, the ..ed, the
19 mulch, .nd a..ure that a .tand of lawn gra.. i. e.tabli.h.d,
20 probably $2,500.00 to $3,000.00.
:a1
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And the oth.r mi.c.llaneous r.pair.?
Th. oth.r mi.c.llan.ou. repair., maDpowe~,
A
:a3 labor, matedale, probably in the neighborhood of U,OOO.OO.
24
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Would $10,000.00 for all of thl. work b. out
of the ballpark?
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No, I don't think it would be.
Is it my understanding -- and you correot me
that this particular location does have an
Q
if I'm wrong
4 actual approved second site that another sand mound could be
5 placed if this one was unrepairable?
6
7
A Yes, that's right. In our regulations, when
sand mounds are needed tor on-lot sewage disposal, the
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8 agency'. requirement is that the site be approved initially
9 with two acceptable locations, one location to be utilized
10 now and one to be used as a back-up in any eventuality.
11
Q
Is there anything that you've discovered in
1:l the file or from your review of the site that would indicate
13 that the problems that you have discovered, the deficiencies
14 and the gand mound problem, was in any way M.. Carbaugh'.
15 fault?
16
17
A
Nothing that I am aware of, nothing at all.
Possibly that garage door thing, I gue.s you
Q
18 mentioned that?
A Possibly.
Q Not the sand mound itself?
A Not the sand mound.
Q Not the lsndsClaping?
A Not to~ knowledge. It would appear to -,
from the times I saw it, that the initial establisbaent of
25 any type of ground cover or soil stabilization was not
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1 .ffeCltive. That .hould be a contractor'. re.ponsibility and
2 to a..ure that it i..
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Q
G.n.r.lly sp.aking, in th... types of
4 situation., ar. you at .om. point -- in any pro::l.ct, are you
5 r.qu..ted to provide a final in.p.ction and to actually .ign
6 oft on the pro::l.ct?
7
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Y.s.
Q
Again, are you pr.par.d to do that with M..
9 Carb.ugh'. prop.rty as we .it h.r. today?
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No, I'm not.
Q
Again, would all of th... matter. n.ed to be
tak.n care ot, a. well as the .and mound, for you to .ign
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off on that?
A
Y...
16 account handl.d? Who mak.. the d.ci.ion on when that money
Q
How i., normally, the mon.y in the ..orow
17
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is r.l....d?
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A Th. loan sp.ci.li.t that ha. M.. Carbaugh's
loan and i. currently in the York of tic. would be the
d.ciding p.r.on, along with any oth.r t.C1hnical or
:l1 admini.tr..tiv. h.lp th.t .h. may n..d. That partioular loan
2:a speoiali.t -- it do..n't make a diff.renc. who it i. -- but
:l3 it would b. the loan .p.ciali.t that ha. h.r loan file.
:l4
Q
I as.um. that th.y would a.k for your report
25 since you're the p.rson, now, who'. actually inMpeotiDg7
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A That i. correot.
Q Would you r.commend that the e.crow money be
r.l....d to the contractor in this ca.e?
A Not at this time.
Q Why i. that?
A Becau.e the work ha. not been C1ompl.ted
.ati.faCltorily.
Q In terms of representing the government
admini.tration her., would you have to come back ultimat.ly
and reinspect once the work waa done to guarantee that it
wa. done properly?
A Yes, I would.
Q Including the inatallation of a new .and
mound, if that
A That i. correct.
MR. TUROI I have nothing el.e. Thank you,
Mr. Chamberlain.
THB COURT I Mr. He..?
CROSS-BXAMINATION
BY MR. HBSSI
Q Mr. Chamberlain, what was the re.pon.e from
Oakwood Home. when you info~ed them of your in.peotion
report.?
A I'm .orry. I didn't h.ar all ot th~t, .ir.
Q When you .pok. with O.kWood Baae. r.g.~dlDg
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1 inspeotion report., what was their response?
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I don't have a recollection of .peaking with
Oakwood Homes.
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Q Did you mail your report to them?
A
I do not have evidence that I mailed it to
you, and if you have a --
Q No. Oakwood Homes. Not me.
A That's correct. No.
Q Who did you mail the report to?
A I woul~ have given the original copy of the
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11 report to the loan specialist, Ms. C~rbaugh would get a
1:a copy, Mr. Turo, in this caBe, would have gotten copies, and
14
13 there'8, of course, one for my file.
Q
It you're doing and inspection to make sure
15 escrow items are done, wouldn't the one person you'd want to
16 make sure get. the notice of that be the builder rather than
17 somebody's attorney?
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A
In some instances, that's correClt.
Q
In Bome in.tances or all instances? What
20 instance. don't you give your inspeCltion report to a
21 builder?
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I don't have an answer for that one.
Q
All right. Didn't your inspection report
ooour after this law.uit wa. filed?
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Yes, it did.
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Did you prepare that in anticipation of
2 tOday, the lawsuit?
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On. of th.m, yea.
Q
You k..p talking about the loan officer.
5 Who's the loan officer?
6
A
Ch.ster Pogorzelski is the community
7 d.velopm.nt manag.r in York at the pr..ent tim..
8
Q
Ie that who you've been referring to wh.n
9 you're talking about correspondence?
10
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A
Yes.
THB COURT I Por the st.nograph.r, can you
12 sp.ll his nam., p1.a..?
13
THB WITNBSSI Pirat name Chest.r. Last name
14 Pogorzelski, P-o-g-o-r-z-e-l-.-k-i.
15 BY MR. HBSSI
16
Q
Are you familiar with Ron Kra.zewski?
17
A
Y.s.yCan you .pell that name, too? I'll l.t
18 you .pel1 it, b.C1au.. I'm not .ure I have it right.
19
A
You prObably do. Ron Kra8zewski wa. . former
20 as.istant kind of supervisor with Parm.r. Home
:l1 Administration. Last name should b. spell.d
22 K-r-a-~-e-w-.-k-i (sic).
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Q Do your fil.. indicate that Mr. Kra.zewski
in.pect.d the prop.rty?
A
Yea, they do.
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1 Q Did h. in.pect it on January 7th, 1994, the
2 date of .ettl.m.nt?
3 A Y.a, he did.
4 Q What did hi. r.port indicat. a. of the date
5 of .ettlement?
6 A There'. no narrative in that r.port, how.v.r,
7 th.re were .ignature. of acceptance ot completion of the
8 work by him.elf, by Ms. Carbaugh. Any others, I would have
9 to look. Of cour.e, also attached to that was the sea.onal
10 change order for the work that had not yet been completed.
11 Q You 8ay there'. no narrative on the report?
12 A That i. correct. Well, there -- (brief
13 pause.) The report on January 7, .igned by Ron Kra.z.w.ki,
14 Angie Carbaugh and a r.pre.entative ot the build.r -- I
15 can't make out that name -- the narrative that i. there .ay.
16 pr.viouB defici.nci.. corr.cted.
17 Q Would that indicate that at .ome pr.viou.
18 time there had been deficiencieB and that a. of the date of
19 settlem.nt Oakwood Home. had corr.cted th.m?
20 A That is correct.
21 MR. HBSSI Can I have that, pl.a.., put into
2:a .vidence.
23 THB COURT I I. this part of the offiClial
24 file?
:lS MR. HISSI I have a copy.
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BY MR. HBSS.
Q
A
Q
A
Could you identity that a. a oopy of -.
It is a copy of the original.
A true and correct copy ot the original?
Ye..
THB COURT. You are a.king that thi. be
marked as a Defendant's exhibit?
MR. HBSSI Bxhibit 12.
(Defendant'. Bxhibit No. l:a was marked for
identification.)
MR. HBSSI Defendant'. Bxhibit 12 has been
marked and identified by Mr. Chamberlain a. . true and
C10rreClt copy ot the in.pection report dated a. of the date
of settlement. I would offer this into evidence, Your
Honor.
THB COURT I Mr. Turo?
MR. TUROI I haven't .een it yet.
(The document was handed to Mr. Turo.)
THE COURT I Mr. Turo, any ob::lection to the
admis.ion of Defendant'. Bxhibit 1:a?
MR. TUROI No, Your Honor.
THB COURT I Defendant's Bxhibit 12 i.
admitted.
(Defendant'. Bxhibit No. 1:a wa. admitted.)
MR. TUROI I ::Iu.t want to be sure we olear up
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lone thing. We keep talking about the date of .ettlement.
~ The date of .ettlement in this ca.e was July of '93.
3 January of '94 waB the move-in date by M.. Carbaugh in the
4 hou.e.
5 THB COURT I I wa. confu.ed, then. I thought
6 it wa. January 7th ot 1994.
7 MR. TUROI That's when .he moved into the
8 property.
9 MR. HBSSI That's when the home loan settled,
10 Parm Home.
11 MR. TUROI I have the .ettlement .heet. with
12 me. I did the .ettlement. We .ettled on the loan in July
13 '93, ::Iu.t so everybody is clear about that. The move-in
14 occurred in January ot '94, not the .ettlement.
15 THB COURT. When waB the .ettlement on the
16 property itself?
17 MR. TUROI July of '93.
18 MR. HBSSI Your Honor, the lot wa. settled
19 on, and there wa. a con.truction loan. Ja&uary 7th, 1994,
20 i. the date that the permanent loan with Parm Home take.
21 effect, the date she moved in and the date relative to the
22 warranty.
23 THB COURTI Mr. Turo, are you in agreement
:l4 with that?
25 MR. TUROI Right, ye., ::lust that .ettlement
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date is a little mi.leading.
THB COURTI All right.
BY MR. HBSSI
Q Mr. Kra.zewski, he was the person handling
this ca.e?
A Yes, he was. He was one of the assistant
county supervi.ors with the agency at this time.
Q Are you aware that he had been subpoenaed to
appear at this trial?
A No, I wa. not.
Q Do you have anything in your file that would
indicate that he went on an in.pection on 4/2:a of 1995,
along with Doug Zook, of the property?
A I don't believe I do, because when I had
heard you talking about that before, I searched the file
again and did not find that particular date.
Q Are there any dates where he was out to the
property .hortly after January 7th of '95?
A The next -- the next one that I have is
dated, in fact -- the January 7th, '94, in.pection is dated
No. 13. Inspection No. 14 was dated June 29th, '94. Ron
Kraszewski had been there t, view the grading and seeding.
His narrative .ays that the lawn --
Q I'm asking about January 7th of '95.
A I'm sorry. I misunderstood you. Not to my
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1 Q.- inspection?
2 A Yes.
3 Q And the record doesn't indicate he found any
4 problems with it?
5 A No.
5 Q Do you at any time communicate with the
7 builder any of the problems that you discover?
8 A During construction, yes, I do.
9 Q No. Did you --
10 A On this case?
11 Q Did you ever contact Oakwood Homes at all?
12 A No, I did not.
13 Q So, when you said you went out to your Becond
14 report and you .aid the builder had not corrected any of the
1S , items from your first report, you hadn't informed him of
15 what was on the fir.t report?
17 A The builder already had those items from Ms.
18 Carbaugh.
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Q So, you're ::lust relying on what Ms. Carbaugh
said, end you're relying on her to inform the builder of
what needs done?
A Those items are in my file. Those
indication., those letters are in my file, letters from Ms.
Carbaugh to the builder, failure to perform. We also haVe
what we term a running case record.
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Q I'm asking about your communications, though.
A Okay.
Q You said you didn't communicate with Oakwood
Home. at all?
A I did not.
Q That you thought all the items on the sheet
had been communicated from Ms. carbaugh to Oakwood Homes?
A Yes.
Q And that's what you're relying on to get the
items resolved I you're relying on her to inform the builder?
A Yes, for the simple r.ason that the contract
is between the owner and the contractor.
Q Wer.e you ever out to the property during the
warranty period?
A No, sir. I was not in this area at that
time. Working the agency, I was up --
Q All right. So, yes or no?
A That's no.
Q The first time you were there is over a year
after the warranty had expired?
A Yes.
Q Could any of the items on your sheet have
occurred b.tween January 7th, 1995, and the date you went
out and inspected?
A Absolute possibility, yes, they could have.
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requb:ed.
contract?
Q You mentioned floor drains in the ga~age as
Is that on the plans and the specs as part of the
A I did not find it on the plans, nor did I
tind it noted in the specs. However, the CABO,
single-family dwelling code, is the development 8tandard,
and that's noted in the contract documents.
Q So, i. it fair to say the plan8 and spec.,
they don't call for a floor drain in the garage, and you
never communicated floor drain in the garage to the builder,
is that right?
A That's correct.
Q Yet he was supposed to fix it?
A The very fir.t time that I saw that
circum.tance, the borrower had already taken care of the
situation, and, of course, this was two years after the
construction wa. complete.
Q It had been fixed?
A It had been corrected but not fixed. In
other words, there had been a hole punched in the floor with
a star drill or --
Q It had been corrected, but you listed it on
your report anyway?
AYe..
Q Why would you list it on the report as
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1 needing to be done if it'~ already been done?
:l A A floor drain should go to an acceptable
3 discharge. And my recommendation to the owner on how to fix
4 the problem, to get the water otf the garage floor, I will
5 regard as an expedient measure for the homeowner's well
6 being.
7
Q
The inspection, ot course, says no floor
8 drains are observed?
9
10
A
Right.
.
You ::lust said there was a floor drain.
Q
It
11 had been corrected?
1:a
A
No floor drains are observed, and then I gave
13 the borrower a recommendation on what to do for it. When
14 did I finally observe that, and did I make note of it? I
15 had observed it on the second visit out there and had not
16 made note of it, indicating that the nuisance had been
17 alleviated. There's no record ot that.yYou mentioned that
18 another unacceptable situation was the culvert. This would
19 be the same a. the floor drain if I'm -- tell me if I'm
20 wrong. The culvert is not in the plans and specs?
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That is correot.
Q
And you had not told the builder to put a
:l3 culvert in?
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A
That is correct.
Q
He's ::Iu~t supposed to know to put a oulvert
84
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1 in?
2
A
My reference there was probably more for the
3 borrower'. information, what can correot the problem that
4 had developed down there.
5
Q
You're te.tifying here today again.t Oakwood
6 Home. that theY're not doing theJ,r job a. a builder, and yet
7 the thinge YOU're listing you haven't told them.
8
A
Okay, and YOU're piClking on the very mo.t
9 minor things, too. The two most &ajor thing. are the
10 failure to provide an adequate stand of lawn turf and also a
11 failure to live up to the bUilder'. warranty. The sand
1:a mound, at leaet the apparatus within, oarrie. a five.year
13 warranty by the builder and the inetaller.
14
15
Q
You had te.tified yoU couldn't tell whioh
iteme
from YOur own ob8ervation, you can't tell whiob
16 itemB would have been during the warranty periOd and out of
17 the warranty period?
18
19
A
True, because I wa. not there before.
Q
Very good. Defendant'. Bxhibit. 2, 3, .. 5
20 and 6, Ms. Carbaugh has preViously identified the.e a. h.~
21
22
23
2.
25
front yard. Doe. that look to you like her froDt ya~d'
A Tha t is the location, ye.. "
, ,
Q Do you see gra.. .tarted there?
A I .ee .ome started.
0 If I told you those photo. Were t.~8D --...'
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1 three months after the grading and seeding was done, would
2 you say that would be a proper start to grass?
3 A Start, yes, but not an acceptable stand.
4 Q But that looks like some grading and seeding
5 has been done?
5 A Yes, it had been.
7 Q The grass i. knitting, it's .tarting to cover
8 all the spots, correct?
9 A A stand has started.yDefendant's Bxhibits 7
10 and 8 are also pictures of Ms. Carbaugh's lawn. Do you .ee
11 any grass?
12 A On the main part ot the lawn, no. Only in
13 the shaded areas where it'. not been burnt out.
14 Q In your experience and feel free to tell
15 me if you don't know -- the grass you ::Iu.t saw, if this
16 picture was taken later, could riding a dirt bike over the
17 lawn cause that, a lawn that's knitted like that one to turn
18 into the one you're currently looking at?
19 A Over the gross area, I'd say no. Over spotty
:l0 trails, yes. But definitely not over the entire area.
21 Q What would aau.e a lawn, from the picture.
:a:a you've previously seen, to turn into a lawn like that?
23 A In my experience, to say that the soil,
24 nutrient. and water were not conducive to getting a stand to
2S establish, to germinate and to be viable enough to .ustain
86
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4
A
I have never installed a sand mound myselt.
How many lawns have you graded and .eeded?
Probably less than a half a dozen.
Q
A
Q
So, when you're giving these quotes on the
5 prices to fix things, these are based on your experience,
6 you'ro not somebody that does this type of work?
7
A
That is correct. I also consult the means
8 co.t eatimating data for most allot my
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Did you consult with any exoavators in the
Q
area that would do that kind of work?
A I reviewed two other files -- three other
tiles for coat estimates, and a sand mound, from scratoh, in
new construction, what I had been tinding in that area was
in the 4 to $5,000.00 range.
Q
How much of that price is the holding tank?
A I don't recal1.yThe holding tank is the main
part of the sand mound system?
A
It's a big part of it, yes, it is.
Any indication that the holding tank is bad
Q
:ao on this property?
:al
22
23
A As far as the tank itself, no.
As far as the
dosing pump operation, pos.ibly.
Q
Possibly. So, the holding tank whiClh i. the
24 main part of the sand m0U11d sy.tem, you don't know if that
25 one's bad, it could be reused here possibly?
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lA That i. po.sible.
2 Q What would be a better e.timate of the co.t
3 to fix the .and mound ayatem, would it be your e.timate or
4 the estimate of the local excavator who regularly does these
5 sy.tem. and who has already looked at this .ystem?
6 A Ab.olutely the local excavator. If he can
7 identify the problem., and, therefore, he can come up with a
8 mo.t truthtul cost ertimate.
9 Q Do you know what a zabel A1800 effluent
10 filter is?
11 A That model doe. not ring a bell with me.
1:a Q Okay. Previou.1y Plaintiff has .ubmitted an
13 exhibit, Plaintitf'. Exhibit 4. The local 8ewage
14 enforcement officer has given a list of thing. to be
15 corrected, that he believe. needs corrected. It this work
16 wa. done, would you feel comfortable .aying that the .and
17 mound would be repaired?
18 A If that work were done, the 8y.tem worked,
19 the Bewage enforcement otficer would 8ign off, ye..
:l0 Q I gue.s what I'm asking is would you trust
:l1 the local sewage enforcement officer to know what work need.
2:a to be done?
23 AYe..
24 Q Would you tru.t the local excavator to give a
:l5 price on doing all of these thing.?
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Q I believe I already a.ked thi.. You weren't
on the property any time during the warranty period?
A No, I was not.
MR. HBSSI
MR. TUROI
I have nothing turther.
Can I do a quick follow-up on
that?
THB COURT I If I might ::Iu.t a.k a que.tion.
BY THB COURT I
Q You said that there wa. a tive-year warranty
for the .eptic system?
A Por the sand mound as.embly, ye., there i. a
five-year warranty.
Q Where are you getting that taot trom?
A It's a requirement of our agency for funding
whenever a .and mound i. utilized. I have a copy of the
tive-year warranty a. issued to Ms. Carbaugh. Ths builder's
name appears to be J. Lyle. I'm not sure. By Jerry Yeager,
it say.. I'm as.uming that to be the installer of the .and
mound sy.tem. It'. a limited warranty agreement for the
electrical control. and the pre.surization pump in the .and
mound septic system, that, of course, being the heart of the
operational sequenoe of it.
TUB COURT I All right. Mr. Turo?
RBDIRBCT BXAMINATION
,
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90
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1 BY MR. TUROI
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2 Q Just to clear up a couple of things, Mr.
3 Chamberlain. When you were tirBt brought into this C1ase and
4 you did your inspection in January of 1996, you were
6
5 requested to come in by the agency, not by my.elf?
That is correct.
7
A
Q
Isn't it normal procedure tor you to go out
8 and make your inspections and then turn your reports over to
9 the county agency?
10
11
12
A
Exactly.
You're not in business of getting between the
Q
contractor and the homeowner and trying to fix the problem.,
.
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13 you're telling the agency what the problems are?
14
15
16 agency?
17
18
19 fault?
20
21
That is correct.
A
'.".
Q
You did turn the.e report. over to the
,
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Ye., I did.
,
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If they didn't send them, that's not your
: (,
A
That is right.
Q
On the second report, I did ask you to .end
:a2 me a C10py, isn't that correct?
23
24
:as lawsuit?
A
Yes, you did.
Q
So you knew that we were involved iD .
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A By that time, I did know what wa. upcoming,
ye..
Q You didn't do anything on that .econd report
at my in.truotion? I didn't tell you what to find, did I?
A
No, you did not.
Q
That's the report that you made ba.ed on your
7 analy.i.?
8
9
A
Ye..
Q
Going back to the sand mound situation. You
10 agreed with Mr. He.s, obviou.ly, that the better way would
11 be for .omeone to actually oome out and analyse exaCltly what
12 the problem is and fix it, correct?
13
14
A
That is right.
That may involve actually digging up the
Q
15 current .and mound?
16
17
A
That may well involve that.
So, the figure. we're talking about are
Q
18 tigures, because we have no way ot doing it until .Qaabody
19 gets into the work?
:ao
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22
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A
That ia right.
You have no way of doing that?
Q
A
Ye..
Obviously, ba.ed on a review of y~ reo0Cd8~
Q
24 the contractor ha. not .een tit to come out and UDdertake .
25
that analysis and fix the problem, bas h.?
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A Rillht.
MR. TUROI
ask, also, Your Honor
Thank you. Nothing else. I would
I would move tor the admission of
Plaintiff's 6 and 7.
MR. HBSSI
THB COURT I
5 and 7 are admitted.
(Plaintiff's Bxhibit Nos. 6 and 7 were
I have no ob::lection.
All right. Plaintiff's Bxhibits
admitted. )
THB COURT I Mr. Hess, do you have any further
questions?
MR. HESSI Yes. Thank you.
RECROSS-BXAMINATION
BY MR. HESS I
Q You said you have a five-year warranty with
you, and you said that's on the sand mound. Isn't that on
::lust the pump?
A Yes, it i8. It's on the electric controls
and the pressurizatior. pump.
Q What's the cost of the electric controls and
pressurization pump? Do you know or don't know?
A No, I don't know.
THE COURT I Is there any evidence that either
of those itemB failed?
THB WITNBSSI I believe there i. evidence
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that at least theY're not working properly. The
pre..urization pump will not act automatically. It appear.
to operate only when the homeowner triqger. it with a manual
switch. That'. not the intended operation. Whether that'8
::Iu.t the switch, whether ~- whatever.
BY MR. HBSSr
Q Wa. that the operation that was occurrinq
prior to January 7th, 1995, do you know?
A I'm not aware ot that. It'. my
understanding, that is true, but I can't verify it.
Q The tive-year warranty, who i8 that with? Is
that with the in. taller of the system, or is that with
Oakwood Homes?
A I'm guessing it would be the installer and
Ms. Carbaugh, the two partie8.
MS. HBSSI I have no further question., Your
Honor.
THE COURT I
MR. TURO:
Mr. Turo?
JUBt one tinal tollow-up, Your
Honor.
RBDIRECT BXAMINATION
BY MR. TUROI
Q A lot has been made ot this .ettlement date
or move-in date of January 7th, 1994, on the inspection
report. Until a homeowner live. in that property, they
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1 could not discover .ewage- or .eptio-related problem., i.n't
2 that true?
3
A True. j'
MR. TUROI Thank you. Nothing elee.
THB COURT I Mr. Ho.s, any further que.tion.?
MR. IIBBS I One moment, Your Honor.
THB COURT I Certainly.
RBCROSS-EXAMINATION
4
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9 BY MR. HBSBI
10
Q
Mr. Chamberlain, wouldn't the .ewage
11 enforcement officer te.t that sy.tem before approving it?
12
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A
Yes.
Q
All indications would be that they got a
14 tavoroble test
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A
Ye., right.
Q
-- a. of January 7th, 1994?
Right, prior to that.
THE COURT I Mr. Turo?
A
MR. TUROI Nothing turther.
THE COURT I How much of the e.timate that
:ll you've given a. to the cost of repair. would the culvert and
22
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the hole in the garage floor involve?
THB WITNBSSI I had not included any of that
I
,
in my indication for the repair.. No.1, the culvert wa.
not an item indicated on the plan8 and speClification.. I
I;
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1 had indicated that the problem. that the owner wa. having
2 probably Clould be allevieted with that, that i., down at the
3 end of the driveway where it ::loins the township road. .0
4 that i. not included. Since the nui.ance problem in the
5 garage floor had been corrected by the borrower and friends,
,
I did not include anything in there.
was not originally provided.
THB COURT I All right.
que.tions?
MR. TUROI No.
Any further
MR. HBSSI No, Your Honor.
THB COURT I You may step down. Thank you.
THB WITNBSSI Thank you.
THE COURT I May this gentleman be excu.ed?
MR. TUROI Ye.. I have nothing else for him.
16 MR. HBSS I Nothing furt~er, Your Honor.
17 THB COURT I Mr. Chamberlain, thank you very
18 much for your te8timony. You're excuBed.
19
20
THB WITNBSel Thank you.
MR. TUROI Your Honor, with that, we would
21 re8t. The only thing, I would ask for an opportunity,
~~ later, depending on what you find -- there'. the i.sue of
23 legal fe.. that come in under the Unfair Trade Practice.
24 Act. I wasn't going to get to that i..ue et this point
25 until I saw where we were going. If we get to that point, I
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1 could .end an invoice to Mr. He.. and he could review it.
2 THB COURTI I think that you'd better pre.snt
3 your whole case now rather than do it in different .tage..
4 MR. TUROI I don't have an updated printout
5 with me now. I have to get that. I could have Angie
6 te.tify to the approximate amount that .he ha. been advi.ed
7 of at this point. I. that fair enough?
8 THB COURT I Sure.
9 MR. TUROI That would be ::Iu.t .trictly on the
10 legal fee i..ue., Your Honor.
11 (Plaintiff's Bxhibit No.9 wa. marked for
1:l identification.)
13 ANGIIl L. CARBAUGH
14 recalled as a witne..,
15 having been duly .worn, te.titied as fol10w.1
16 DIRECT BXAMINATION
17 BY MR. TUROI
18 Q Angie, heve you been able to pay any legal
19 tee. to me thus far?
20 A No.
21 Q I'm going to .how you what's been marked
:a2 Plaintiff'. Exhibit No.9. I. that a copy of my invoice?
:l3 AYe..
24 Q Wha t' s the balance due a. ot - - I think
25 'ebruary i. the la.t one I ran. What's the balance due as
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12 MR. TUROI That's all I have, Your Honor.
13 I'd ask for the admi..ion of No.9.
14 THB COURT I Mr. He.., any ob::lection to the
15 admis.ion of Plaintiff's Bxhibit 9?
16 MR. HBSSI I would like to take a look at it,
17 Your Honor.
18 (Brief pause.)
19 MR. HBSSI Your Honor, other than noting that
20 attorneys get paid way too mUClh, no ob::lection.
:a1 MR. TUROI No argument to that. Thank you,
22 Your Honor.
:l3 THB COURT I I gather that there is no
24 challenge being made to the rea.onablene.. and fairne.. of
:lS that particular figure. Is that correct?
of that elate?
A One thou.snd .even hundred seventy dollar. .
THB COURT I One thou. and .. .
MR. TUROI Seven hundred and ..venty.
THB COURT I Seven hundred and .even dollars?
MR. TUROI Seventy, .eventesn .eventy.
THB COURT I Thank you.
BY MR. TUROI
Q Do you have any que.tion. in your mind that
that'. not con'ect?
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THB COURT I
No, Your Honor. That'. correct.
Plaintiff's Bxhibit 9 is
admitted.
(Plaintiff's Exhibit No.9 wa. admitted.)
MR. TUROI Your Honor, with that, we rest.
THZ COURT I All right.
MR. HESSI Your Honor, at this time I'd like
to ask for a directed verdict as to the Unfair Trade
Practices claim and the attorney tees included therein.
Under the Unfair Trade Practices Act, there ha. to be a
course of ClonduClt so outrageous that it meets the standards
of that act. There is no such here, and I don't believe
they met their burden ot proof on that iBsue to make a
recovery under that aClt. I'd ask the Court deny that count.
THB COURT: Mr. Turo?
MR. TUROI Your Honor, the act .pecifically
says that a person participate. in an unfair trade or
deceptive act if they represent the gOOdB or services or a
particular standard, quality or grade, in this case,
workmanlike. It'B clear that, ba.ed on the SBO'. violation
notice., the home is not in compliance with that. More
importantly, it also requires that if there was a written
guarantee or warranty given that the improvements would be
made, and that if they're not made and they are inferior to
the standard ot that agreement in writing that that can be a
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1 d.c.ptiv. trade praCltic.. I b.li.v. w. have met that
2 .tandard.
3 THE COURT I Mr. H..., I wa. under the .am.
4 sort of impr.s.ion that you ar. about that act, and I was
5 r.c.ntly rev.r..d becaus. I did not make an award und.r it
6 in a construction c.... I think I'll need to look at it
7 again. Por that reason, I will not at this time grant that
8 motion.
9 MR. HBSSI Thank you, Your Honor.
10 THB COURT I Ye., sir. Mr. H..s?
11 MR. HESSI Thank you, Your Honor. I'd like
12 to call Douglas Zook to the stand.
13 DOUGLAS L. ZOOK
14 having b.en duly affirmed, testified as follow. I
15 DIRBCT BXAMINATION
16 'Y MR. HBSSI
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Q Mr. Zook, .tat. your full nama for the
record, plea.. .
A Dougla. Lane Zook.
Q What i. your position with the Defflnd.nt?
A pr..id.nt.
Q How long have you b..n presid.nt of Oakwood
Hom..?
A Sino. '92.
Q So, you w.r. the pr.sid.nt at the time that
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this who1. thing took place with MB. Carbaugh,
the construction of her house, the contract?
A That is correct.
Q And you're familiar with everything
surrounding it trom Oakwood HomeB' point of view?
A That i. correct.
Q Mr. Zook, did you have an opportunity to and
are you familiar with the builder'B warranty that was given
to Me. Carbaugh?
A YeB, I am.
MR. HISSI I would like to have this marked
as Defendant'. Bxhibit 13.
(Defendant's Bxhibit No. 13 was marked for
identification. )
BY MR. HBSSI
Q Mr. Zook, I'm 8howing you Defendant's Bxhibit
13, a builder's warra~ty signed the 7th day of January,
1994. 18 this a true and correct copy of the original?
A Yes, it is.
MR. HISSI Your Honor. Mr. Zook ha.
identified Defendant's Exhibit 13 a. a true and oorreot copy
and ha. authenticated it as such. I'd ask that it be
admitted into evidence.
MR. TUROI
THB COURT I
I have no ob::leotion.
All right. Defendant'. Ixhibit
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1 13 is admitted.
2 (D.fendant'. Bxhibit No. 13 was admitt.d.)
3 BY MR. HBSSI
.
Mr. Zook, what does the build.r's warranty
Q
5 provide?
6
It provide. a warranty for a one-year period
A
7 of time from the time ot C1onstruction Bettlement, which, in
8 thi. ca.e, would have been January 7th of '94.
9
10
Doe.n't it .tate that any d.f.ctiv.
on Page :l, in the middle -- that notic. must
Q
workmanship
11 be de1iver.d to the warrantor no later than 1/6/95?
12
13
That ia corr.ct.
A
Q
Could you t.ll the Court, pl...., what notice
14 you received from Ms. Carbaugh prior to January 6th, 1995?
15
16
A
Th. only notice th*t I have p.rsonal
knowl.dg. of is the notic. on which -- there had be.n
01
17 variou. back and torths with rmHA and Angie about what was
18 done, what wa. not don.. Wft kept getting oalls that the
19 work wasn't done. My .up.rvi.or kept telling m. the work
:l0
was done. I ultimat.ly got involve~ p.rsonal1y and said, w.
.~
:a1 need one final li.t so that we Clan olarify this onoe and for
22
all. I will then m.et with Angie and a repr...ntative from
,
. l,t
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:a3 'arm Home personally, and we'll resolve thi. once and for
24 all. We tried numerous tim.. to sch.dule that meeting.
:l5 That meeting did not occur until April 20th of "4, I
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1 b.li.v. -- or, I'm .orry, of '95, becau.e of sch.duling
2 problem. b.twe.n Angi. and ~, at whiClh time w. addr....d
3 .v.ry waxranty item that had b..n in di.pute at the time of
4 the warranty expiration.
S Q Previously marked a. Def.ndant'. Bxhibit No.
6 1 i. a li8t that M.. Carbaugh .tated th.t sh. pr.par.d ot
7 item. that were wrong with the property. She couldn't
8 recall wh.t that li.t wa. prepared for or wh.n. Do you
9 r.call, i. that the mo.t -- i8 that the li.t that you had
10 upon tne expiration of the warranty?
11 AYe.. Thi. is the final liBt of all item.
12 r.maining uncorr.cted at the time of warranty expiration.
13 Q She could not rememb.r on that li.t -- .he
14 .tated that h.r initial. are to the right ot the item8, but
15 .he could not rem.mber why her initials were th.r.. Do you
16 r.member why her initial. were there?
17 A I .ure do. I had had -- I was quit.
18 fru.trated with the r.p.at.d a...rtion. that the work had
19 not be.n don.. At the .am. tim., I wa. getting confirmation
20 trom my p.ople that the work had be.n done. So, I went up
21 th.re with this li.t, and in the pr...nce of Ron
22 Kra.zew.ki
23 Q I'm sorry. Ron Kr....w.ki was pr.viou.ly
:a4 id.ntifi.d by Mr. Chamb.rlain a. the per.on from 'a~ Haas
:a5 working this ca..?
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1 A That'. correot. H. wa. the county .up.rvi.or
:a at the Carli.l. office, which, at that tim., .up.rvi..d
3 Cumberland County. Th.y've .inc. con.olidated. He was
4 pr...nt, oth.rwi.e I'm quite c.rtain .hd probably wouldn't
5 have .igned th..e. But in front ot him, we .ddr....d the..
6 one by one. As we went to on. item, we would look at it,
7 Ron and me and Angie standing there looking at it. We would
8 .ither operate it or in.pect it, whatever the c.se may b..
9 When it was evidenced by our per.onal inspection right then,
10 I would lay thi8 paper on the table or .et it up again.t the
11 wall that'. why you ... I'm cock.yed all ov.r the place
12 here .nd I'd say, Angie, would you please initial this
13 that this one i. acceptabl., and then we w.nt to the next
14 item and the n.xt item until we h.d hit ev.ry item on this
15 li.t. And .he initialed nearly every item on this li8t.
15 She di.puted, I think, two of them, .. I look here.
17 Q The tir.t one .he di.putes i. the .eal along
18 the counter n.ed. re..al.d. She did not sign that one?
19 A What had happened there, her boyfri.nd wa.
20 there at the time of the in.pection, and her boyfri.nd
21 acknowledg.d the.e are my note. that I had made about the
22 in.pection wh.n I went back in ca.e it ever came to this.
23 It'. al.o in the l.tter that I had written to Mr. Spotts at
24 Ron Turo'. offic.. My note. from that time regarding the
25 seal on the kitchen count.r are that h.r boyfriend
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1 aoknowledged, in the pr.sence of Ron trom 'a~srs Home, who
2 retused to testify at this hearing, that my supervisor
3 intended to recock that, however, there were so many dirty
4 dishes in the sink and on the counter that he couldn't get
5 to it. He~ boyfriend then agreed to do it himself if my
6 supervisor would leave his materials there, which he did.
7 Her boyfriend did not follow through with his commitment.
8 Ws did intend to do it, but we couldn't get to it because of
9 her housekeeping.
10 Q So, you followed her instructions, though, on
11 resolving that i.sue?
12 A That'. correct.
13 Q The other thing .he did not sign off on was
14 the tank alert alarm?
1S A Yeah. She had the tank alarm disconnected at
15 the time of the inspection. We went over there. She said
17 the tank alarm wa. going otf, 80 we plugged it in. We
18 waited tor the tank alarm to go off, and it didn't go off.
19 I said, well, there doesn't seem to be a problem here. She
20 refused to sign off on it, so I made a note on here that she
21 refused to sign off on it but that there was no defect noted
:a:a upon our inspection.
23 Q Again, this i. after the time the warranty
24 hes expired, you personally ohecked the tank alarm, and it
25 was not malfunctioning at the time?
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1 A That i. correct.
:a Q The only other remaining item is the yard?
3 A That'. correct.
4 Q You have been .howing these photograph.
S marked Defendant'. Exhibit. 2 through 6. Could you tell u.
6 when the.e picture. were taken?
7 A I per.onally took the.e pictureB on September
8 :a2nd of '94. The yard had been put in in mid-June, in the
9 heat ot the 8ummer. The gra.. had knitted, but it hadn't
10 been watered at this point, and it was in danger of burning
11 up at this point.
12 Q Had you given in8truction. to M.. Carbaugh to
13 water the lawn?
14 A Absolutely. A lawn, in most caBes,
15 e.pecially in the middle of summer like that, the seed won't
16 prosper if it's not watered becau.e of the heat of the day
17 in the middle of .ummer. The Beed would have been quite
18 young at the time that we hit the peak of the .ummer .un in
19 this case.
20 Q Let'. make a clarification. The contract
21 requires you to grade and seed the lawn, and you did that?
:l2 A That's correct.
:a3 Q Doe. the contractor require you to come out
:l4 and water and maintain the lawn after that time?
:lS A No. Once we fine grade and seed, that'.
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where our re.ponsibility for it ends.
Q So, you fine grade and seed, and you info~
the homeowner to water the lawn?
That's correct.
After that, it'. up to them?
Yep.
Those pictures were taken, sorry, September
A
Q
A
Q
what of '94?
A
Q
done?
A
Q
September 22nd.
So, about three month. after the work was
Correct.
Mr. Chamberlain testified, when I show~d him
those pictures, that he would expect that a lawn three
months after grading and seeding would probably look like
that?
A That's correct.
Q And th~t's the same time frame you're talking
about?
A It should actually look a little better than
that after three months if it's been watered and taken oare
of. That yard is marginally sati.faCltory for three mon,ths,
and it's because it wasn't maintained.
Q But it do.s .hQw evidence of grading and
seeding?
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A Seven and eight here, ye., I did.
o When were they taken?
A The.e were taken .- I'd have to look at my
note.. I developed the film in May of '95. It wa. taken in
the .pring of '95. I can't give you the exact date on thi..
o During the .pring of '95, .0 .ix month.
later?
A Yep.
o What i. the condition of the lawn?
A The lawn i. pretty well de.troyed. There wa.
dirt bike track. allover it, and there wa. car. parked in
it. There wa. dog. tied in it. The yard had been pretty
well destroyed between the noncare of it in the first place
and the abuse of it after that.
THE COURT: I think I may have inadvertently
admitted Defendant'. Exhibit. 7 and 8 before they were moved
for admi..ion.
MR. HESS:
THE COURT:
MR. TURO:
THE COURT:
I'll a.k that they be moved now.
All right. Mr. Turo?
No objection.
Defendant's Exhibit. 7 and 8 are
admitted.
(Defendant'. Exhibit No.. 7 and 8 were
admitted. )
BY MR. HESS I
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1 Q M.. Carbaugh previou.ly identified tho.e a.
2 the dirt bike. belonging to the boyfriend. It .how.
3 approximately five dirt bike. in the yard?
4 AYe..
5 THE COURT: Thi. i. what?
15 THIl WITNESS: Thi. would be the .pring of
7 MR. HESS. Defendant'. Bxhibit. 8 and 9.
8 THB WITNESS. We don't -- we ju.t have 8 and
9 9.
10 MR. HESS. Did we skip 7? At any rate, we
11 have 8 and 9 here that I'd like to move into evidence.
12 THB WITNESS: Bxhibit 7 we don't wi.h to
13 admit. Seven doe.n't .how what I thought it .howed.
14
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19
20 withdrawn, and it. admi..ion i. vacated.
21 (Defendant'. Ilxhi~it No.7 wa. withdrawn.)
22 THB COURT: Now, i. there a motion to admit
23 Defendant'. Exhibit 9? I have admitted Defendant'. .xhibit
24 8. Mr. Turo, do you have any Objection to the admi..ion of
25 Defendant'. Exhibit 9?
THB COURT: So, Defendant'. Exhibit 7 h
being withdrawn?
MR. HIISS. Ye., Your Honor.
THE COURT: Wa. that, in fact, _rked?
MR. HESS. Ye..
THB COURT: Defendant' . Ilxhibit 7 h
110
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...
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1 MR. TURO. No.
2 THB COURT. All right. Dehndant'. 9 i.
3 admitted.
4 (Defendant'. IIxhibit No.9 wa. admitted.)
5 MR. HESS: I would like to mark the.e
15 photograph..
7 (Defendant'. Exhibit No.. 14 and 15 were
8 marked for identification.)
9 BY MR. HESS:
10 Q Mr. Zook, would you identify the.e two
11 photograph. marked a. Defendant'. Exhibit. 14 and 15?
12 AYe.. The.e were picture., again, from the
13 .ame time I took tho.e other one. in the .pring of '95.
14 Q Again, the.e picture. were taken
15 approximately .ix mnnth. or .0 after the Une gz'ading and
16 .eeding?
17 A That'. correct.
18 Q Or, I'm .orry, it would be nine month. after
19 fine grading and .eeding and .ix month. after the pioture.
20 .howing the lawn ha. knitted?
21 A Ye., that i. correct.
22 Q Now, you referred to there wa. evidenoe tha'
23 there were dirt bike. being ridden around the hou..?
24 A Right.
25 Q And dog. tied out, that the dog ... uan1at
, "I
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a ohain, and kid. riding their bike., i. that correct?
A That'. correot.
MR. HESS: Your Honor, I would like to move
Defendant'. Bxhibit. 14 and 15 into evidence.
THB COURT. Mr. Turo?
MR. TURO: No objeotion.
THB COURT: Defendant'. 14 and 15 are
admitted.
(Defendant'. Exhibit No.. 14 and 15 were
admitt.d.)
MR. HBSS: If it plea.. the Court, I would
like Mr. Zook to point out to you on the photograph. what he
wa. referring to a. the traok. going around and th. dog
marks.
THB COURT: All right. Mr. Turo, if you want
to come forward to .ee thi., you may.
THB WITNESS: On the.. two picture5, you c~n
.ee a track where they'v. been running around the hou.e with
the dirt bike. and form.d a tzack. You can .ee where a
dog'. dragging a chain from this box and a dog'. dragging a
chain from this box. Both of tho.e picture. ar. fairly
.imilar.
BY MR. HESS:
Q Mr. Zook, i. there any chance a lawn would
grow with that kind of activity on it?
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A That'. gro.. abu.. of th. lawn if you w.nt
gra.. to be th.r..
Q Is that .omething that'. cover.d und.r the
build.r'. warranty?
A No. That'. certainly out of our control.
Q Tho.e photographs were taken after the
expiration of the builder'. warranty?
A That'. correct.
Q The oth.r pictur.. w.re tak.n durJ.,ng th.
build.r'. warranty and do .how the gra.. growing, i. th.t
corr.ct?
A That'. correct.
Q What was the gen.ral condition of the
prop.rty when you went to in.pect it with Mr. Kr....w.ki in
April of ' 95?
A It wa. - - for lack of a more tactfu,l word, it
w.. tra.hed. I wa. real hogg.d up. If we'd have to .ell a
hou.e like th.t ov.r .gain, w.'d probably .pend 4 or 5,000
buck. ju.t getting it r.ady on th. in.ide. All of the w.ll.
.r. marked up, paint .11 over th. inside of the garag..
Q Th. p.int on the in. ide of the g.rag., did
your p.opl. do that?
A No. Som.body who wa. doing work CD .. there
w.. car. tore 'part -- or p.rt. of car. in the gara,., I
gu.... Somebody had b..n u.ing it, I gu..., for .~ kia4
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1 of oar-work activitie..
2 Q Ms. Carbaugh te.tified thet in Pebruary of
3 '94, about one month after .he moved in, that a cap blew and
4 there wa. a problam with her septic .y.tam. Are you
5 familiar with that?
6 A I don't recall the exact time frame of that
7 problem, but I do remember the cap blowing off, and we .ent
8 .omebody up to fix that.
9 Q Wa. it during the warranty period?
10 AYe..
11 Q And did you repair that?
12 AYe..
13 Q Do you recall who repaired that?
14 A Ye., John Jarrett, J-a-r-r-e-t-t.
15 Q The conduct of Oakwood Homes during the
16 warranty period, did you go out and fix the warranty item.?
17 A Repeatedly we were called out. I don't
18 personally go out on tho.e call. myself, but I .ent __
19 actually, I had the job .upervisor that ran that house out
20 several time. to do various minor warranty item..
21 Q And the final check after the warranty
22 expired in January of '95, you did per.onally go out and
23 check off tho.e item.?
24 A You mean when we went out on April 20th,
25 which wa. after the warranty expired?
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1 Q Ye..
2 A Ye., I per.onally went to that one, beoause
3 my .upervi.or who had per.onally been to the job and done
4 the work kept telling me it wa. done, and Angie and rmHA
5 kept calling up and saying it wa.n't done. I thought the
15 only way to solve that prob1am wa. to go out there with
7 Angie and FmHA my.elf and get to the bottom of it, whioh i.
8 what these .ign-off. repre.ent.
9 THE COURT: We're now at 4.30. If this would
10 be a convenient point to adjourn, I will do that.
11 MR. HBSS: That would be convenient, Your
12 Honor.
13 THE COURT: All right. You may .tep down.
14 Off the record.
15 (A discu..ion was held off the record.)
16 MR. TURO. I would move for the admission of
17 Plaintiff'. Exhibit 8.
18 THE COURT: Mr. He.., h there any objection
19 to the admi..ion of Plaintiff'. Exhibit 8?
20 MR. HESS: No objeotion, Your Ronor.
21 (Plaintiff'. Exhibit No.8 wa. admitted.)
22 THE COURT. I likewhe don' t have Defendant' 8
23 Exhibit 11 a. admitted. Are you moving for the adai..iOll of
24 that item?
25 MR. HBSS: Ye.. I would also move for tbe
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admi..ion of Defendant'. Bxhibit 11.
MR. TUROI I'm not .ure I know -- i. that a
3 photograph?
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THE COURT: That'. th, change order.
MR. TUROI No objection.
THE COURT: I had .aid that, and I'm looking
7 at what'. called Defendant's Exhibit 10, and that ia the
8 e.crow agreement. I gue.. Defendant's Exhibit 11 i. a
9 letter changing the ch~nge order.
10
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12 admitted.
MR. TURO: No objection to that either.
THE COURT: Defendant'. Exhibit 11 i.
13 (Defendant'. Exhibit No. 11 wa. admitted.)
14
THE COURT: We'll enter this Order:
15 (The following Ordar wa. entered by the
115 Court :)
17
"AND NOW, thi. 23rd day of April, 1997, upon
18 con.ideration of the Plaintiff'. complaint in the
19 above-captioned matter and the Defendant'. counterclaim, and
20 following an initial day of hearing, and the ca.e not having
21 b.en completed, the record .ha11 remain open, and coun.el
22 aze reque.ted to contact the Court'. .ecretary for purpo.e.
23 of .cheduling a final half day of trial. At the time of
24 adjournment of the trial on this date, Plaintiff had
25 completed her ca.e-in-chief, the Defendant wa. pre.enting
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Wedne.day, June 11, 1997
9100 a.m.
THE COURTr This is the time and place for a
re.umption of the trial in Carbaugh v. Oakwood Home., Inc.
We will let the record indicate that couneel are pre.ent in
oourt. Pleaee proceed.
MR. HESSI Thank you, Your Honor. I would
like to recall Dougla. Zook to the stand. I believe he wa.
on the witne.e etand at the time we ooncluded laet tim..
DOUGLAS L. ZOOK
having been duly affirmed, testified ae follow.,
DIRECT EXAMINATION (Cont'd.)
BY MR. HESS:
Q Mr. Zook, to briefly review for reoord,
you're the contractor who built the home in que.tion here,
the home of the Plaintiff, M.. Carbaugh, i. that correot?
A That'. correct.
Q Aa part of your con.truction of thi.
property, you ieeued a builder'. warranty on January 5th,
1994?
A That'. correot.
Q Which warranty expired on January 15th, 1995?
A That i. corzeot.
Q And--
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I'm sorry. The date i. January 7th of '94 of
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2 the warranty.
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Okay. And when did it expire?
It expired January 6th of 1995.
And that's Defendant's Exhibit 13, the
Q
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Q
6 builder's warranty, which is already in evidence. Mr. Zook,
7 you heard the testimony of Ms. Carbaugh. She basically
8 has.- I'll break it into thr.ee sets of complaints about
9 this property. No. 1 was a laundry list of things that she
10 said she gave notice of during the warranty period. I'll
11 refer you to Defendant's Exhibit No.1, which is a list that
12 M.. Carbaugh identified as being in her handwriting that .he
13 gave to you in the .pring of '95?
14
That's correct.
A
15
Could you give the Court some information on
Q
16 this li.t, how it came about and what action you took a. a
17 result of this list?
18
Ms. Carbaugh had callsd our office on a
A
19 number of occasion. during the warranty period reque.ting
20 wazranty work. She never gave notice correctly under the
21 term. of the warranty, written notice, but we went out and
22 did the work anyway in an effort to try to have a happy
23 customer. However, even after having done the work and
24 making repeated trips to that hou.e -- I had a .upervi.or
25 who was re.ponsible for either doing or over.eeing the
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1 warranty work -- we kept hearing from Angie or from FmHA
2 that Angie had oomplained to them that this warranty work
3 wasn't done or wasn't being taken care of. I had gotten a
4 little frustrated with that, after going back and forth. I
5 kept being told by my people that the work was done. I kept
6 hearing from Angie and from Parm Home that it wasn't done.
7 So, in order to reconcile it once and for all, I acheduled a
8 meeting between myself, Angie and Ron Kraszewski, who is the
9 county supervisor at FmHA at that time. We all met at
10 Angie'S house with her liat, which I a.ked her to provide me
11 in writing before that meeting, and we walked through --
12 Q Let me stop you just a .econd. Did this
13 meeting occur after January 6th of 1995?
14 A Y... It was out of warranty by that time,
15 but we still wanted to try to satisfy the customer. If
16 there were legitimate itema that weren't done under the
17 terms of the warranty, I wa. going to do th~ anyhow,
18 because they had -. I mean, these were items that were
19 reported under the terms of the warranty. So, even though
20 it was after the date of the warranty till we could get
21 Kraszewski out there -- I didn't see ~y point in going out
22 there without Kraszewaki there. We needed to get everybody
23 on the same page, where PmHA and me and Angie were all at
24 the a.me place at the same time so there would b. no fUrther
25 dispute.
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1 Q That list of item., Def.ndant'. Exhibit 1, is
2 that the li.t that M.. Carbaugh provided?
3 A This i. the list that she provided for our
4 m.eting out there at her house.
5 Q Wh.t occurred at this meeting?
6 A At this meeting, I went down this list item
7 by item, one at a tim.. On each item we walked to the i..ue
8 in dispute, we looked at it, and we -- in virtually ev.ry
9 ca.e, there wa. not a warranty defect. In an .ffort to put
10 it to bed once and for all, as we went plac. to place and we
11 ob..rved that th.re was not a problem, I had Angie initial
12 each line item that the problem had b.en pr.viously
13 r..o1ved.
14 Q Ms. Carbaugh testified .arli.r that tho..
15 w.re her initials next to these item., but .he couldn't
16 recall why .he put her initial. next to the item.. Do you
17 r.cal1 why .he put h.r initial. n.xt to the.e item.?
18 A Absolutely. She put her initial. th.re,
19 b.cau.e I said, Angie, I want you to initial each line a.
20 we -- and we -- the.e initial. are put on at all different
21 k:l,nd of goofy angle., becau.. I would hold the paper, and
22 I'd say we would look at the problem, and h.r and I and
23 the county supezvisor from FmHA would look at the item,
24 det.rmine it to be ~ot a problem anymor., having been fixed,
25 and I'd put the paper down and .ay, Angie, pl.a.. initial
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1 here that this ha. been taken care of, and .he would initial
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it. We went through the whole thing, item by item. The
only iS8ue she didn't initial here i. the tank alarm, which
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4 we te.ted, and she wouldn't sign off on it in spite of the
5 fact it wouldn't go off at that time.
6
Q
Now, explain for the Court what a tank alarm
7 i., just in case the Court has the .ame knowledge a. I do.
8 I would think maybe it's tanks coming down the street. How
9 does a tank alarm work in a sand mound .yetem?
10
A
A sand mound system has two tanks in .erie..
11 The fir.t tank, the effluent from the hou.e, the .ewage from
13
to catch the solide. And then the water flow. from that
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the house, goes into the first tank, which then i. .uppo.ed
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tank through a pipe to the second tank, which i. called the
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15 dosing tank. In that dosing tank i. a pump, and that pump
16 pump. water that flows into that tank. When that tank fills
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up to a certain level, there'. a float in there
there'.
18 two floats in there. There's one float that as it ri.e. .-
19 it'. ju.t like in your commode. If you took the top of your
20 commode off, you Bee how it has a float in there that
21 controls. It's kind of a switch. When that gets to a
22 certain point, it kick. on the pump. That pump pump. the
23 water out into the sy.tem to be di.per.ed into the ,round.
24 Then there'. another float in there that work. another
25 switch, and that .witch i. for the alarm. So, if that taak
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1 get. too full and the pump didn't oome on to pump it out,
2 then the other float .et. off the tank alarm, which will
3 cause a noise and a light to go off in the garage indicating
4 that the tank is full and indioating that there could be a
5 potential problem with the pump.
15 In this ca.e, the pump wa. not a prob1am,
7 because it wa. still pumping water out. If there was any
8 kind of a problem at all, it wa. a problem in the tank alarm
9 being .et wrong, to where the alarm wa. going off in .pite
10 of the faot the pump w.. .till pumping.
11
Q
Did you, on this ocoasion that you're out
12 there with the county .upervisor -- did you inspect the tank
13 alarm .y.te.?
14
A
No. What w. did is the tank alarm system
15 that wa. on the wall, she had unplugged it, .0 we plugged it
16 baok in to .e. if it w.s going to go off. And it didn't go
17 off, so there did not appear to be a problem. Th. only way
11 to look at it any furth.r would be to have to dig up the
19 tank and aotuelly oheck the pump -- or the float .etting.,
20 whioh I wa8n't equipped to do that day.
21
Q
When you plugged the .ystem in and the al.~
22 did not go off then, i. that indicative of the pU8p. wo~kiD8
23
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Yeah, and also the fact that s.-a,. ...n't
25 baoking up into the house. If the pump wasn't wo~klug, you
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1 know, within a matter of days the tank would fill up and
2 your .ewage in the house would not work anymore.
3
There was no indication that there wa.
Q
4 problem. with .ewage in the house?
5
No. To this day, I have not heard of a
A
6 problem with .ewage backing up in this house. It'. ju.t an
7 alarm i..ue a. to whether the alarm i. set corzectly or not.
8
When you built this house, did you get from
Q
9 the town.hip an approval to cover?
10
Yeah. The township come. out -- or the
A
11 .ewage enforcement officer for the town.hip comes out and
12 inspects and tests the whole system. You have to have it
13 wired up. You have to have water in the tank. They
14
actually test the system and make Bure it'. funotioning
15 properly before you can cover the mound and the tank. with
16 dirt.
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Did you have knowledge that the town.hip did
Q
this?
A
Yes. They had approval to cover.
You sub.equently reoeived what, something
Q
21 from the township saying you can cover the .y.t..?
22
Yeah. They .ign off on the original septio
A
23 permit.
24
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That would in~ioate that they inspeoted it
25 and thing. were fine?
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That'. correct.
In the spring of '94, during the warranty
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period, did M.. Carbaugh ever call you about a problem with
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4 the .y.tem, .pecifically the pipes?
5
There wa.
A
yes. We did receive a call
15 about a leak on the .y.tem, so we called an excavator that
7 doe. the.e sy.tem. and asked him to go out and look at it,
1
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whioh he sub.equently did.
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What did he find?
A
He found that one of the caps -- there are
11 .ix oap. whwre there's an elbow that come. up, and they have
12 a oap in them to .eal them off so that the water that'. in
13 the .y.tem get. forced out through the hole. in the bottom
14 of tho.e pipe., but one of those cap. had gotten knocked
15 loo.e .omehow.
16
Q
So, the water was coming out the top of one
17 of the.e pipe. at that time, and then that wa. glued back
lion?
19
A
That'. correct. It'. like a five-minute
20 repair.
21
22
MR. HESS: I would like to mark an exhibit.
(Defendant'. Exhibit No. 115 wa. marked for
23
identification.)
, "
24 BY MR. HBSS:
25
Q
Mr. Zook, I'm going to .how you a pbotograPb
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marked D.f.ndant'. Exhibit 16. Can you identify that
pictur. for u., pl.a..?
A Yeah. It's a pictur. of part of Angi.'.
.eptic sy.tam and part of her lot.
Q Can you give u. an approximate time frame of
when this was taken?
A Thi. was taken .ven within the pa.t oouple
week. h.re.
Q Is that a true and accurate repr...ntation of
the property a. of, let'. .ay, a month ago?
AYe..
Q The white pipe. .ticking up in the picture,
are tho.e the pipe. you're speaking of?
A Yeah. One of those caps -- I don't know
which one but one of thoee cap. was knocked 100...
Q Tho.e caps are all currently intact?
A That'. correct.
MR. HESS. Your Honor, the witne.. ha.
identifi.d and authenticated the picture marked a.
Defendant'. Exhibit 16. I would offer that into evideno.
before the Court.
THE COURT:
MR. TURO:
THE COURT:
16 is admitted.
Mr. Turo?
No objection.
All right. Def.ndant'. Bxhibit
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(Defendant's Exhibit No. 16 was admitted.)
BY MR. HISS:
Q Now, Ms. Carbaugh, in her earlier testimony
la.t time, said that she reported a sand mound system
problem during the warranty period, and then on further
questioning she said that she'. still having problems with
her sand mound system. The problem that she reported during
the warranty period, was that the problem with the caps?
A Yes. That'. a totally different problem than
what they're talking about now.
Q So, the inference that she reported a problem
and it still has not been corrected would not be the correct
inference. You fixed the problem during the warranty
J'leriod?
A That is correct. The problem that she'.
talking about now was reported to u. on Pebruary 1 of 1995.
At that time, we were told that the problem occurred on
January 28th of 1995. She didn't call us until Pebruary 1
of 1995.
Q When you say the current problem, you mean
that there's leaching out of the sound mound?
A That's oorrect.
Q That was reported out. ide of the wa~ranty
period?
A That i. correct.
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1 Q The problem reported during the war~enty
2 period was corrected?
3 A Absolutely.
4 Q Now, you had seen a notice laat time from
5 Southampton Township that was given to Ms. Carbaugh, a
6 notice of violation. It'. marked a. Plaintiff' a Bxhibit 4,
7 from Mr. Jeffrey Danner. It's a notice of violation dated
8 June 17th, 1996. This is a year and a half after the
9 warranty expired. He list. on here a number of things that
10 he would like to be followed in repair of the sewage sy.tem.
11 Now, the Plaintiff8 have offered that a. evidenoe that there
12 waa a defective system installed. Going down that ~ist of
13 items, are they defects in the system, or are they changes
l4 they would J.ike to 8ee in the sy.tem?
15 A They're a number of these are maintenanoe
16 items. A number of them are upgrades. Por example, the
17 zabel effluent filter wasn't even heard of at the time that
18 this system was designed.
19 Q So, when you built this house, you did the
~o ayatem in accordance with what the townahip requi~ed, is
21 that correct?
22 A Yeah, in acoordance to the DI. regulations at
23 that time of what wa. the oorreot .ystem designed for that.
24 Q Would I be correot in saying that tho.e it...
25 are either maintenance items or upgrade. that the town.hip
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would like to see?
A Well, a numb.r of them ar. maint.nanc. items.
There's a couple of it.ms on here that are temporary item.
that are relevant to the upgrade. that the town.hip would
like to .ee on that tank. Por example, conv.rting the
septic tank into a temporary holding tank i. only n.c...ary
in order to facilitate 80me of this oth.r .tuff, so that
wouldn't be a normal maintenance problem. It'a not caus.d
by a defect in the installation of the approved d..ign, at
the time that we put that sy.tem in.
Q Mr. Chamberlain, who is the Parm Hom.
inapector who teatified last tim., inap.ct.d the prop.rty
, two yeara aft.r the warranty expired and .tat.d h. r.ally
couldn't .ay what tho.e items w.r. .p.cifioally and couldn't
answer the question a. to wheth.r or not th.y w.r.
maint.nance or upgrad.. or def.ct.. Ar. you .tating that
there are no defect item. .tated on ther.?
A There are no -- there ar. no .yst.. d.feat
itema on this list.
Q Okay. So, Ms. Carbaugh's fir.t co.pla1Dt
about the varioua items w.r. thing. that .he sign.cS off OIl,"
actually, and now sh.' s her. saying they'r. still . - .he' ",
23 do.an't remember that. But do you r.call h.r signiDg off
24
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wh.n those things w.r. fix.d?
A Abaolut.ly, .h. .ign.d off on tb....
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Q The two thing. she didn't sign off, first,
was the sand mound system, which you repaired the on.
complaint that occurred during the warranty?
A That's correct.
Q And the other things that they pointed out a.
def.cts aren't def.cts?
A That is correct.
Q Now, the last thing that .he points out
I'm .orry. Let me back up. On this sound mound, even
though in the curr.nt report, you mention.d the l.aching wa.
reported on Pebruary 2nd of 1995, i. that correct?
A rebruary 1st of 19;5.
Q rebruary 1.t of 1995. Have you had an
opportunity to inspect that sand mound and ... what might be
cau.ing the leaching?
AVes.
MR. HESS: I'd like to mark another exhibit.
(Defendant's Exhibit No. 17 wa. marked for
identification.)
BY MR. HESS:
Q Can you id.ntify this picture for the Court,
plea..?
A Yeah. This i. anoth.r picture of Angie'.
yard.
Q I. that the rear yard?
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Q Is that a true and authentic copy of the
condition of the property a. of a month ago?
A
Ye..
MR. HESS: Your Honor, the witness has
15 identified and authenticated th. picture marked a.
7 Defendant'. Exhibit 17. I would like to offer it into
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8 evidence at this time.
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THE COURT: Mr. Turo?
MR. TUROI No objection.
THE COURT: Defendant'. Bxhibit 17 i.
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If:
(Defendant'. Exhibit No. 17 wa. admitted.)
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MR. HESS: Your Honor, with the Court'.
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15 permi..ion, I'm going to have Mr. Zook point to some thing.
16 on here. I think it would be helpful if you could ... it.
17 Perhaps Mr. Turo would be able to look at the sam. ti.. so
18 he can .ee what's being pointed to. I don't know how you
19 want to juggle thi..
20
THE COURT: I can see the exhibit froa h.rs..
21 Mr. Turo, if you want to come forward, you ..y.
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BY MR. HESS:
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Mr. Zook, could you point out wbere the aaa4
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Thi. would be the .and lIOund ri,ht he..s'.
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mound?
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area?
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out there.
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circle?
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Would thi. area be the side of the .and
Ye..
What ha. happened to the topsoil in this
It'. been destroyed by the doga that are tied
Is that dog on a chain that drag. that
15
14 property to run in that direction?
Yeah. It caused the destruotion of the
A
16 diversion away from the system and also the destruction of
17 the ground cover, the gra.., again contributing to potential
18 infiltration of surface water into the tanks and al.o to
20 to fail.
19 waahout around the sy.tem, providing an environment for that
21
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22 that you fini.hed the house?
Were the.e hollow area. present at the ti..
23
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24 that we settled on the house.
No. Tho.e dogs were not there at the ti~
25
Q
It appear. from the picture that .everal
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1 inche. up to .everal feet of top.oil have been eroded away
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6 current problem. with the sand mound are not cau.ed by the
7 de.ign or the amount of top.oil but rather by the lack of
9 maintenance of M.. Carbaugh?
9 A Yeah. There'. no de.ign defect. It'a a
10 maintenance problem. It's ju.t not been taken care of.
11 That's indicative of the way the entire property ha. been
12 taken care of.
13 Q The fir.t liat of item. and the .and mound
14 are her fir.t and .econd complainta, the third i. really the
15 gra.. on her property, which .he teatified and provided
16 picture. .tating that there wa. no gra.. cover on her
17 property. A. a contractor, what w.re you required to do,
18 under Parm Home regulation., to that lawn?
19 A My requirement at the time of .ettlement .-
20 becau.e we .ettled in the wintertime, we couldn't fine ,rade
21 and .eed it. So, at the time of .ettlement, they held in
22 e.crow for a couple of weather-related it.... We hed to pUt
23 a .ervice walk in and one or two minor thing. that needed to
24 be done, all of which were done. The requir"'nt for the
25 yard -- at the time that the weather would pe~it, 'we ha4 to
by the.e dog.. Wa. that your ob.ervation of the property?
A Ye., and it actually ..em. like the dog is I'
almo.t getting onto the edge of the mound there .
Q Would it be your te.timony, then, that any
,
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fine grade
that.
Q
yard?
A
Q
briefly?
What doe. fine grading entail and .eeding,
and .eed that yard, and an e.crow wa. held for
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Di1 you .ub.equently fine grade and .eed the
Ye., we did.
8
A
They use an attachment to a tractor that
9 ba.ically kind of irrigate. the .oil and take. the .tone.
10 off of it and provide. a good environment for .eed to grow.
11 After they've prepared it in that way, they .pread .eed on
12 it, after which it'. the homeowner'. re.pon.ibility, then,
13 to maintain that and water it and make .ure that it --
Q
Are you re.pon.ible under the builder'.
15 warranty to make .ure the gra.. grow.?
16
No. Actually, I wa. entitled to that e.crow
A
17 the day after I fine graded and .eeded it, however, we did
18 not get it.
19
Q
Defendant'. Exhibit. 2, 3, 4 and 5 are
20 picture. of the property'. front lawn. Do they all .how
21 gra.. growing in the front lawn?
22
23
A
Ye..
Q
Would that gra.. glOW there if you bav. DOl:'
24 graded and .eeded it?
25
A
No, it wouldn't. It'. growiDg a. a r..ul' of
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1 the fine grading and .eeding that wa. done.
2 Q Defendant'. Exhibit. 6, 8, 9, 14 and 15 .how
3 no gra8. in the front yard. I b.lieve you te.tified earlier
4 the.e were .ub.equent picture.?
5 A That'. correct.
6 Q When you look at the property, do you have an
7 opinion or theory on why no gra.. wa. growing in that yard
8 at that time, that there wa. grass, but now there'. no
9 grau?
10 A Ab.olute1y. It was not taken ca~e of.
11 They've been -- there wa. . time when they were riding
12 motorcycle. around there in a loop fa.hion and had it all
13 tore up from that. Now it appear. that they're doing it
14 with cars and bicycles. We fine graded and .eeded that on
15 June 16th of '94.
16 Q You did that in accordance with Parm Home
17 regulation8 and requirement.?
18 AYe., ab.olutely. The .ame subcontractor that
19 has done all my yard. -- or the majority of my yard. for the
20 la.t five years did this one, a. well.
21 MR. HESS: I would like to mark the fOllowing
22 photo., in o~d.r, a. exhibit..
23 (Defendant'. Exhibit No.. 18 through 23 were
24 marked for identification.)
25 BY MR. HESS:
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1 Q Mr. Zook, I'm going to .how you Defendant'.
2 Bxhibit. 18, 19, 20, 21, 22 and 23. Are the.e all picture.
3 of M.. Carbaugh'. property?
4 A Ye. .
5 Q Were they picture. from the .ame time frame
6 a. the other picture., a month ago?
7 A Yes.
8 Q Did you per.onally observe the property
9 during that time frame?
10 AYe..
11 Q Are the.e true, accurate repre.entation. of
12 the condition of the property a. you ob.erved it?
13 A Yes.
14 MR. HESS: Your Honor, the witness has
15 identified and authenticated Exhibit. 18 through 23,
16 Defendant's .xhibits. I would like to offer them into
17 evidence at this tim..
18 THE COURTI Mr. TurQ?
19 MR. TURO: No objection.
20 THE COURT. All right. Defendant'. Exhibit.
21 18, 19, 20, 21, 22 and 23 are admitt.d.
22 (D.fendant'. Exhibit Nos. 18 through 23 were
2~ admitted.)
24 MR. HESS. Your Honor, if it would plea.. the
25 Court, again, Mr. Zook i. going to be pointing at thing.. I
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1 would a.k Mr. Turo, if h. wishe., to com. up and al.o look
2 at th..e picture. .0 he can ..e what Mr. Zook i.
3 identifying.
4
THI COURT: All right.
5
MR. TURO: It'. not n.ce..ary.
15 BY MR. HESS.
7
Q
Mr. Zook, on th... photograph., M.. Carbaugh
8 te.tified la.t time, my que.tion: Does anyone ever ride
9 bike. in the yard? Her an.wer: No. My que.tion: Never?
10 Her an.w.r: N.ver. My que.tion: Are there any bike rut.
11 in the yard? H.r r.spon.e was no.
12
l3
Did you ob.erv. bike rut. in this yard?
A
Y.ah. There'. four bicycle. and one tricycl.
14 in the yard.
l5
16
Q
Point to the bicycle..
A
Th.re'. one h.re, one here, one h.re, one
17 here, and the tricycle right here. And they have be.n
18 rutting this whole area up. It's like a track going around
19 her.. You can .e. all of the track., where th.y wer..
20
21
Q
Would you exp.ct gra.. to grow in that area?
A
No. Th.y've d..troy.d any ability for gra..
22 to grow in this ar.a wh.n th.y abu.. the --
23
Q
Would that al.o contribute to the ero.ion of
24 the topsoil?
25
A
Ab.o1utely.
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Q Again, the place. where the dog. have drug a
ohain around, would you expeot gra.. to grow in that area?
A No.
Q Referring you to the basketball net and
ba.ketball, i. there evidence that there wes ba8ketball
played on the yard?
A Yeah. They u.e it a. a dirt court.
Q Would you expect gra.s to grow on that?
A No. They've al.o been burning on here, a.
well.
Q I think we have a pictures to .how that a
little clearer. Thi. area that'. black and gray, did that
.how evidence of burning?
A Yeah.
Q Or being subject to fire?
A Yeah, as does this spot here.
Q How about this area?
AYe..
THE COURT: You are referring to ~efendant'.
Bxhibi t --
MR. HESS:
THB COURT:
Eighteen.
Eighteen.
BY MR. HESS:
Q I'm .howing you what appear. to be a little
clo.er view, Defendant'. Bxhibit 19, again .howing what
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appear. to be rut. in the yard, would that be correct?
AYe..
Q The.. boulder. and rock. and thing. in the
yard, would they have survived grading and .eeding, or wo~ld
they have occurred after grading and seeding?
A Non. of that .tuff would have been left after
grading and .e.ding.
Q Would a tractor have been able to drive over
that stuff?
A
Q
A
Q
exhibit?
No.
So that wa. put there .ub.equent?
Ye..
The.e track. --
THE COURT. Are you r.ferring to another
MR. HBSS. Y... I'm .orry.
BY MR. HBSS:
Q Referring to Defendant'. Bxhibit 20, .howing
additional track., would the.e appear to you -- let me a.k
you thi.. Do you ride motorcycle.?
AYe..
Q Would they appear to be motorcycle traok.
throughout the yard?
A Ye., they would definitely appear to be like
dirt bike traok..
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Q
We had previou.ly .een Defendant'. Exhibit 9.
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2 You took that picture?
3
4
A
Ye..
Q
That w.. previouely moved into evidence, and
5 that ehow. .ix dirt bikee lined up again.t the eide of the
6 hou.e?
7
8
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A
Ye..
Q
Referring to Defendant'. Exhibit 21, what
appear8 to be an old ca~, a Chevy Malibu, i. that parked in
.
10 the driveway, or i8 that parked where there'. .uppo.ed to be
11
gr...?
A
,
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15
16
17
that car?
Q
It'. parked in the yard.
Would you anticipate gra.. would grow under
"
A
No.
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Q
Referring you to Defendant'. Exhibit 22,
ehowing the upper bank of the property, can you identify
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18 what you ..e in that picture?
19
A
An old -- .ome kind of old -- it look. almo.t
20 like an old piece of a trailer .hed or .omething drug up
21 there.
22
Q
How about the ground in front of the .hed,
23 doe. it appear to be .ubject to burning?
24
A
Yeah, in thi. area it doe.. They'v. been
25 bu~ning allover it. There'. junk allover.
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Would gra.. grow where there'. been burning?
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A
No.
Q
Referring you to Defendant'. Exhibit 23, i.
4 that a picture of the front yard?
5
6
A
Ye..
Q
I. there gra.. growing?
Yeah. Wherever they've not been riding their
7
A
8 dirt bike. and burning stuff the gra.. grow..
9
Q
Would that gra.. have grown without grading
10 and .eeding?
11
12
A
No.
Q
So, the.e photograph. would indicate that the
13 grading and .eeding has been done but it has been worn away
14 by the Plaintiff?
15
16
Yeah. The yard has been abu.ed.
Can you describe the general condition of the
A
Q
17 property a8 far a., let'. say, trash or non-yazd item.?
18
A
It's ab.olutely deplorable. I mean, there'.
19 junk allover the place. I mean, if they want to live like
20 that, that'. their prerogative, but I think that we met our
21 requirement. when we graded and .eeded it, and we'~e
22
entitled to our e.crow a. a re.ult of that. But th-r've
,', '
23 clearly abused it. And the yard i. bad, but Dot .. a ~e.ult
34 of u. not doing what we were contracted to do.
25
The tra.h that'. thrown about the property,
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1 wa. that there at the time you complet.d the prop.rty and
2 turn.d ov.r po.....ion to M.. Carbaugh?
3 A No. That property wa. new and -- except to
4 'the ext.nt that the front eidewalk wa.n't in and the fin.
5 grading and ...ding wa.n't done at the time of .ett1em.nt,
6 the re.t of it wa., as with any new hou.. that -- I mean, it
7 wa. appropriately completed, a8 wa. indicated by Parm Home
8 agr.eing to that fact, a. well, and rel.a.ing the final
9 draw.
10 Q Mr. Chamberlain, the Plaintiff'. witne..,
11 te.tifi.d that when he saw the property approximately a y.ar
12 and a half, two year. after the warranty .xpir.d that there
13 wa. a lack of top.oil. Would you agr.. that th.re'. a lack
14 of top.oil?
15 A Yeah.
16 Q What cau.ed the lack of top.oil?
17 A W.ll, the .oil .urface ha. b.en de.troyed by
18 the abu.e of the prop.rty.
19 Q So, the thr.e thing. that .he ha. oomplaint.
20 about are the li.t of, let'. .ay, interior item. that .h.
21 did .ign off on, the .and mound, which .h. oontributed
22 you fixed during the warranty period, and the DUrrent
23 probl.m., which you're t..tifying are cau.ed by the dogs
24 eroding the .oil around the prop.rty and the lack of ,~...
25 and was not due to your work?
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A That'. correct.
Q The SBO'. ourrent requirement. don't di.play
any defect. in your workman.hip?
A TheY're not a re.ult of anything that we
didn't do properly.
Q And the gra.s grow. where it ha. not even
been taken care of, ju.t left alone?
A That'. corr.ot.
Q The lack of top.oil i. due to the complete
laok of maintenanoe and the .ttack. on the .oil by M..
Carb.ugh?
A Ye.h. I mean, the .oil that'. there i.
topsoil indigenous to that area, but it'. been abu.ed. It'.
not providing a ho.e for gra.. right now becau.e it'. being
torn up r.peatedly and not being left to grow.
Q The final complaint of M.. Carb.ugh i. that
.he feel. you're liable und.r the Unfair Trade Practice. Act
in that .he initially t..tified that .he never heard any
re.pon.e from Oakwood Home. under cro..-examination. A. you
heard, .he lat.r .aid, well, we did. You came out. She
recalled you and Mr. Kr....w.ki coming out. Can you tell
U., how did you treat M.. C.rbaugh during the time of the
warranty and even after the time of the warranty?
A W.ll, fir.t of all, .he didn't make her
warranty reque.t during the term of the warranty in
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acoordance with the terms of the warranty. She would jUBt
2 call up. But in an effort to try to satisfy a customer and
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meet our obligation, we didn't
you know, we didn't give
her a hard time about th4t. I would jUBt send somebody out
to take care of it. We were out to that property repeatedly
during the term of the warranty I yet, for whatever reason,
even when the work waB done, we kept hearing reports that __
she kept calling Parm Home saying the work wa~n't done. And
that's why, ultimately, to get a reBolution of thi. once and
for all, I personally got involved in it, in going out, to
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11 make Bure that we had met our obligations under th8 terms of
12 the warranty. That's when we had the meeting with Ron
13 KraBzewski, who refused to come to this hearing. If I'd
14 have known he was going to do that, I would have had him
15 Sign off on these, too.
16 But nonetheleBB, we did everything that we
17 were required to do under the warranty, and even more, in an
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20
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24
25
effort to satisfy the customer and meet our Obligation. But
it appears that nothing that we could do, including getting
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her to agree that all of the work waB done by inspecting
work, was Bufficient to prevent the kind of problem we're
dealing with now.
Q Let me back up. JUBt briefly, the time that
Mr. Kraszewski, the Parm Home superviso~, walked through the
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property with you, did he inform you or did you come to a
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1 knowledge of any work that he wanted done after that
2 inspection?
3
A
He wa. there to protect her intere.t., .lle a.
4 the borrower and them a. the lender. He was basically there
5
to concur with her position if, in fact, there wa. validity
6 to it. She wasn't pushed into .igning anything by me being
7 there with her by herself. Both her boyfriend -- who I
8 believe his name at that time wa. Jeff -- and Ron were
9 there. She .igned off on the.e of her own free will a. we
10 in.pected it, a. I gue.. anybody would have to. If you
11 looked at it, it wa.n't broke. It wa. fixed. It would be
12 normal to concur with that.
13
Q
Mr. Kraszew.ki didn't indicate to you at that
14 time that there wa. any work to be done?
15
A
The only i.Bue. that were di.cu..ed a. being
16 unresolved we. the is.ue of the tank alarm, which we
17 in.pected and couldn't find a problam with, and the i..ue of
18 the fine grading and seeding, which had been done and they
19 wanted u. to redo. No additional warranty items. Bear with
20 me while I just review my note. on that before I make a
21 hard, fa.t comment. (Brief pau.e.)
22
There wa. an item at the kitchen oounter that
23 required -- needed to be recau1ked. However, there ..~e 80
24 many dirty dilhe. in the .ink that we couldn't ,et to it to
2S recaulk it. And at that time on that day, her boyf~ieDd
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1 agreed to do it him.elf if we left the material. th.re,
2 whioh i. what we did.
3 Q You left the material. there?
4 A Yeah. So that wee one item that wa. a
5 legitimate warranty item, but we were unable to re.olve it
6 beoau.e of the condition of the property, and they agreed to
7 be re8pon.ible for it, and Parm Home agreed to that, a.
8 well.
9 Q Was there any time when you did not do what a
10 rea.onable builder would do?
II A No. We went probably a little beyand what
12 .ome would do. But, again, at that time, we were doing
13 additional buein... with Parm Home, and we wanted to
14 maintain a good reputation. Sometime. you have to go a
15 little above and beyond to do that, which we did, although
16 it did not .ucceed in preventing additional p~obl....
17 Q To reiterate one more time, you never
18 reoeived written notice during the wa~ranty period?
19 A No, we never received written notioe duriDI
20 the warranty period. The only written notiCe that we 41d
21 receive wa. upon reque.t, in prepa~ation for that ...tiDg
22 with Mr. Kra.zew.ki, 80 that, again, we could re.olv.
23 everything once and for all.
24 Q Have you oompleted all it... und.r the '.Grow
25 agreement?
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A Yes.
Q Do you feel you are entitled to those funds?
A Yes. We've been entitled to them .ince June
of '94.
MR. HESS: Thank you, Mr. Zook. I have no
further questions.
THE COURT: I just have one que.tion, if I
might, before Mr. Turo ask. some que.tions. What was the
first date that Ms. Carbaugh complained about the sewage
system that i. the subject system?
THE WITNESS. The current problem?
THE COURT: No, just the first date that she
made a complaint at all about that sy.tem.
THE WITNESS: She made a call sometime in the
spring of '94 about that cap that had blown off.
THE COURT: All right. Mr. Turo?
MR. TURO: Thank you, Your Honor.
CROSS-EXAMINATION
BY MR. TURO:
Q Mr. Zook, let's fOCU8 initially on the
grading and seeding .0 I'm clear about that. The grading
and seeding wa. completed in June of 1994?
A That's correct.
Q You have not done any additional grading and
s.eding since that time?
147
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1 A That'. correct.
2 Q A. far a. you were concerned and what your
3 te.timony is today, when you finished in June of '94, you
4 did all of the grading and .eeding that wa. required and it
5 wa. fine?
6 A That'. correct.
7 Q There were no additional grading and .eeding
8 i.sue. to be focused on or re80lved, everything wa. okay?
9 A Under the term8 of the escrow agreement
10 between us and Parm Home, we met the term. of the escrow
11 agreement on that date that I 8aid earlier, in June of '94.
12 (Plaintiff'. Exhibit No. 10 was marked for
13 identification.)
14 BY MR. TURO:
15 Q Let mCl .how you what has been marked
16 Plaintiff'. Exhibit No. 10 and auk you if you can identify
17 that document for u.?
18 A Thi8 i8 a letter from Ron Kraazew.ki dated
19 October 11, 1994.
20 Q What doe. Mr. Kra.zew.ki say concerning the
21 grading and .eeding in hi. letter of November of 1994?
22 A Of October?
23 Q Ye., of October. I'm .orry.
24 A He .ay. that we need to put topsoil down,
25 which i. in direct violation of what the grading and .eedin,
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1 e.czow agr..ment .aid.
2 Q In fact, doe.n't he indioate that the
3 de.cription of material. .tat.. there will b. .ix incheD of
4 top.oil, and, quote, there i. not .ix inches of top.oil on
5 the property?
6 A That i. what Mr. Kra...w.ki .ay. in this
7 letter, and it would b. wonderful if h. wa. h.re to te.tify
8 to thi., b.cau.. there i. more than .ix inches of top.qil
9 th.r.. Th. i..ue i. the matter of d.gre. and what d.fine.
10 top.oil. A. I've already indicated, the top.oil there i.
11 indigenous to the area. Th.r.'. an orchard acro.. the road
12 that'. growing in the .ame type of top.oil. The neighbor
13 ha. the .ame kind of top.oil.
14 Mr. Kra...w.ki'. opinion i. hear.ay opinion,
lS b.cau.. h.'. not here to t..tify to thi., that there'. not
16 top.oil her.. However, I'm h.r. to .ay that tbere i.
17 top.oil th.r.. Howev.r, in .pit. of the faot that tbe
18 d..cription of mat.rial. .ay. there'. to be .ix inohe. of
19 top.oil, it i. 'arm Hom.'. re.pon.ibility at tbe tt.. of
20 final .ett1..ent to d.t.rmine that the hou.. i. iD
21 .ub.tantial compliance with the plan. and .pecifioatioa.
22 which form the contract, in which oa.e, at the fiDal
23 ..ttlem.nt, they have .igned off that the hou.. i. iD
24 t.ub.tantial complianc. with the plana and .p.oifioatioa.,
25 with the .xc.ption of the ..crowed it.... Th. oaly it...
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1 indioated related to the yard on the escrow is for fine
2 grading and .eeding. There is nothing on there related to
3 bringing in additional topsoil, and no e.crow was held for
4 additional topsoil.
5
Q
How much top.oil did you bring into the
6 property?
7
A
None. We never bring in topsoil from off
8 site. Top.oil i. atripped off of the property when the
9 hou.e is dug out. It's stockpiled. After the house i.
10 built, it'. reBpread around the property. That is standard
11 building procedure.
12
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16
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18
MR. TURO: Your Honor, I'll move for the
admi.aion of Plaintiff's Exhibit No. 10.
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MR. HESS: I object to that, Your Honor. We
subpoenaed Mr. Kra.zewski to be here. Parm Home said they
would not provide him under TOUHY regulationa.
THE COURT: Under what?
MR. HESS. Department of Agriculture
19 regu1ationa. They claim that they are not responsible to
20 appear in your courtroom.
21
THE COURT: Por the benefit of the
22 stenographer, how are you spelling that?
23
24
25
MR. HESS. T-O-U-H-Y. Again, we subpoena.d
him to be here so he could teatify. He refus.d to .how up.
This letter is ola..ic hearsay.
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TH. COURT. Mr. Turo?
MR. TURO. Mr. Zook is admitting he received
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3 the letter. He know. the contention.. It'. not being
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5
6
offered to prove the m.tter of the ....rtion, ju.t that he
wa. notified by Parm Home, and it goe. to the rea.on why he
haen't had his .acrow relea.ed. Parm Home made the decision
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7 not to relea.e that money, not M.. Carbaugh. It goes
8 directly to hie counterclaim. I'm not pre.enting it to show
9 whether or not there's enough top.oil. The fact i. that
10 there wa. an i..ue. There's al.o a letter here from Mr.
11 Zook, hi. own letter, that will diecu.. the topaoil i..ue.
12
THE COURT: For that limited purpo.e, Mr.
13 He.s, do you still have an objection?
14
MR. HESS: That will be fine, Your Honor.
15 Thank you.
16
THE COURT I Plaintiff'. Exhibit 10 i.
17 admitted for the limited purpo.e indicated by Mr. Turo.
18 (Plaintiff'. Exhibit No. 10 wa. admitted.)
19 BY MR. TURO:
20
Thero were further discue.ion. concerning tbe
Q
21 lawn and at leaet what we'll call the perception that you
22 did not properly .eed and grade it from both F.rmer. Hcae
23 and Ms. Carbaugh .fter June of '94, i. th.t correct?
24
25
A
I'm .orry. Could you repeat th.t?
There were other communication. to you
Q
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1 conoerning the problem. with the yard after June of '94?
2 AYe.. When we a.ked for the relea.e of the
3 e.crow, there wa. actually a conflict at the time the yard
4 wa. being done. 'arm Home, in violation of their own
5 regulation., had relea.ed money to Ms. Carbaugh, which they
6 .ubsequently got her to give back, to allow her to rent
7 equipment or her boyfriend.
8 (Plaintiff's Exhibit No. 11 was marked for
9 identification.)
10 BY MR. TUROI
11 Q I'm going to uk you if you will identify
12 that for u., Plaintiff'. Exhibit No. 11. Do you recall
13 receiving that letter in April of 1995?
14 AYe..
IS Q In that letter, did Mr. Spotts from my office
16 indicate that there wa. a continual problem? Aotua11y, the
17 1i.t that'. attached listed the grading and .eeding a. one
18 of the item. that has yet to be completely ~e.olved. I'll
19 refer you to No. 29.
20 A Ye.. Your letter .tated that that, along
21 with a whole lot of other thing., were defeots that you
22 believed existed at that time.
23 Q No. 29, .pecifically. We're foou.ing on the
24 lawn at the moment.
25 A Yeah, because a lot of th..e other one. _re
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already .igned off on, and much of this letter i. in there.
(Plaintiff'. Exhibit No. 12 was marked for
identification.)
BY MR. TUROI
Q I'm going to a.k you if you can identify
Plaintiff'. Bxhibit No. 12?
A Yea.
Q That'8 your re.pon.e?
A That i. correct.
Q Let'. go to Page No.2 of your re.ponse.
MR. HESS: Your Honor, I'm going to objeot to
the.e letter8. These were .ettlement negotiation. between
the partie.. He can't offer them into evidence.
MR. TURO: They're not settlement
negotiations, Your Honor.
THE WITNESS: They mo.t certainly were
.ettlement negotiation.. You made threat.
MR. HESS. Wait, Mr. Zook. Let the judge
THE COURT: I don't know whether the~ are or
not. I don't know anything about them. If you want m. to
take a rece.8 and review the letter., I'll be glad to.
MR. TURO I haven't even moved tham into
evidence yet.
THE COURT I
MR. TURO.
WeU., they're being referred to.
I can move them into evidence.
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1 You can certainly take a look at them, Judge. They're not
2 .ettlement letter..
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THB COUR~: We'll take a brief reoe.., and
4 I'll .ee coun.el in chamber..
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MR. HBSS: Thank you, Your Honor.
(A brief rece.. wa. taken.)
THE COURT: We'll let the reoord indicate
7
8 that the Court ha. met in chamber. with coun.el and reviewed
9 Plaintiff'. Exhibit. 11 and 12. The Court will permit,
10 pur.uant to counuel'. agreement, I believe, the.e letter. to
11 be the .ubject of an ftxamination of this witne.., but only
12 to the extent that they tend to .how admi..ion. on the
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witne.s' part a. to defect., and that will be a matter for
cro..-examination and redirect examination.
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I. that .ati.faotory, Mr. He..?
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MR. HESS: Ye., Your HonQr.
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THB COURT. Mr. Turo?
F
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MR. TURO. Ye., Your Honor.
Thank you.
19 BY MR. TURO.
20
Q
Mr. Zook, returning to your letter of -- I
21 believe it'. an undated letter, but I a..ume it wa. writtee
22 .ometime in April of '95. Doe. that .ound about ri,ht?
23
A
Yeah. It re.pond. to your letter of Afril
24 18th.
25
Q
Now, again, on the .econd pag., belfway ~,
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1 you do .tat. in the l.tt.r that you intend to r....d the
2 lawn und.r the t.rm. of the warranty b.oau.. w. were awar.
3 of the prob1.m of the lawn prior to the .xpiration of the
4 warranty. You did .ay that, corr.ct?
5 A Y.ah, a. part of a complete paregraph that
6 fini.h.. off with --
7 Q Th.n you go on to .ay that you f.lt that the
8 lawn was properly .eed.d. It wa. not maintained, a. you
9 t..tified before. If it had b.en maintain.d, it WClu1d have
10 g.rminated, but it wa. n.v.r wat.red and given no h.lp to
11 grow.
12 A I not only f.lt thatl I .aid I have pictur..
13 indicating that the lawn wa. prop.rly .e.d.d, but it wa. not
14 maintain.d by M.. Carbaugh. I fo110w.d that with, had it
15 b.en prop.rly maintain.d, it would 1ik.ly have g.rminat.d,
16 but it wa. n.ver wat.r.d or giv.n any h.lp to grow.
17 Q Now, again, you n.v.r did aotua11y follow
18 through on thi. warranty work by bringing in additional
19 top.oil?
20 A That'. corr.ct. A. part of this n.gotiation,
21 there w.r. term. of my agreem.nt to do that. Tbi. wa. an
22 attempt to prev.nt furth.r ha..l.. with thi.. I would have
23 done that had we had a p.rman.nt la.t para,raph, agre..-nt
24 by all partie. providing for the r.l.a.. of the ..crow after
25 w. r.did the yard, b.cau.. I alr.ady did it once and d1dD't
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g.t my ..crow, and I didn't want to r.do it a .econd time
and not get my ..crow.
Q Again, it's your t..timol~ that the yard, a.
it .xi.ts, had natural top.oil in the area, which, would you
agr.e, is a .andy ba..d top.oil, pur.uant to Mr.
Kra...w.ki'. opinion?
A It i. a .andy ba.ed top.oil indigenous to the
ar.a.
Q You n.v.r brought additional top.oil in to
make .ur., a. I under.tood you w.re requir.d to do, to bring
.ix inch.. of top.oi1 to that prop.rty?
A No. It do.. not say to bring in any top.oil.
It say. fin. grad. and s.ed the top six inch.. of the
topsoil.
Q Wa. th.re .ix inch.s of top.oil on the whole
prop.rt).?
A Y...
Q So, when you .tated in your l.tter that, in
fact, you w.r. going to bring in additional topsoil which
you'll plac. on the top.oil already th.r., which i. of a
relati'vely poor grade, and coat it to a depth of two or
thr.. inch.., what did you m.an by that?
A I m.ant that I wa. trying to pr.v.nt
litigation. I wa. going to bring in additional topsoil, in
.pite of the fact I didn't b.liev. it to be n.c...ary, in
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1 order to re.olve this thing without wasting a whole lot of
2 time.
3 Q Now, a. you've indicated to us, you've
4 received complaints from Ma. Carbaugh, verbally or
5 otherwiae, concerning her septic sy.tem problem. in general
6 during your warranty period?
7 A No. I received a .pecific verbal
8 complaint no written, no otherwiae complaint -- about a
9 apecific aeptic problem that we specifically fixed by gluing
10 the cap back on.
11 Q How about the tank alarm?
12 A The tank alarm I personally inspected and did
13 not find a defect.
14 Q In fact, you indicated on I'our direct
15 examination that the only other thing you could have done
16 was to dig up the tank, and you didn't have the equipment to
17 do that?
18 A Well, that's true. And had the alarm been
19 going off, I'd have come back and done it. However, at the
20 time I inspected it, there was no defect noted, therefore, I
21 had no reason to want to dig up the tank.
22 Q Why would that tank be leaching today?
23 A Why would the tank be leaching?
24 Q Why would the .eptic system be leaohin,?
25 A The septic is leaohing, I believe. because of
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1 erosion around the system as a result of the poor
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maintenance of the yard. Whenever you have raw soils where
gras. has not taken because of not maintaining it, it will
4 wash away. And a. it washes away, it provides -- the water
5
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pumped into that .eptic system will follow the path of least
resi.tance. If there is inadequat. cover around the system
7 beoau.e it's been washed out and because of poor
8 maintenance, the path of lea.t resietance may be out the
9 side of the system instead of down through the system.
10
11
Were you reaponeible for making eure that
Q
ground water flowed away from that eeptio eystem whenever
1~ you did your final building of this prQperty?
13
Yes, and we did do that. The dogs have
A
14 pretty much torn up that whole area. Additionally, swales
15 will not stay. They will fill in with sediment when there
16 is no root structure to hold it down. Any time you don't
17 have vegetation, you're going to have a washout.
18
19
Where did you build the swale?
The sand mound system is an elevate4 sand
Q
A
20 mound system, and there WQuld have been swaling ju.t around
21 the edge. It doasn't need to be very pronounced, ju.t
~2 enough to get it away from the .yatem. The ground flow.
23 downhill away from the eystem, and you just ne.4 to .-ale it
24 so that it doe.n't actually impaot the syst...
25
Did you actually build a swale to take water ,
Q
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that wa. coming off the mountain away from this sand mound?
A There would have been a .wale th&t would have
ourved around the upper .nd of it, and that goe. right about
through the middle where that dog i. tied, which would
direct it down toward --
Q Who did that .wale con.truction?
A The exoavator that did the whole job.
Q Can you .ee that .wale in the.e picture., any
of them? Can you .how m. where this swale i.?
A I would .ay that, from what I've s.en, the
.wa1e ha. been pretty w.ll -- this would form -- the .wale
would be in this area. But a. you can .ee, it'. pretty well
d..troyed a. a re.ul t of oar traffic on the yard and the
dirt bike. and the dog. Thi. dog ha. done a lot of damage.
THB COURT: What exhibit are you looking at?
MR. TURO: I wa. looking at 18.
THE COURT: Defendant'. Exhibit 18?
MR. TURO: Ye..
THB WITNESS. This one dog, in and of it.elf,
ha. pretty well de.troyed the most effective and most
important part of that .wale.
BY MR. TURO:
Q
do.. it not?
A
Thi. property .it. near a hill in tbe back,
That's correct.
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Q Ju.t.o I'm clear, your te.timony i. that you
built a .wale that would take the water off the mountain and
channel it away from the .and mound?
A There i. a -- pretty much following the
cour.e of where the.e bike. are being ridden, there wa. a
depre..ion here that would have provided for wash around the
building and around the -- and Parm Home would not have
.ett1ed the property had tho.e .wales not been in place.
Q Let'. go back, if we could, to the
enforcement notice that you di.cu..ed that wa. received from
Mr. Danner. You indicated that the items on there, none of
them had to do with your work on the .ystem itself. Do you
.till have that in front of you?
A No, I don't.
Q Could you tell the Court what Mr. Danner
meant by the paragraph that talks about up slope from .and
mound and divert the surface and ground water away from the
.and mound? What doe. that -- what did he mean by that?
A That means to reimplement the swale that'.
been destroyed by the dog. The date of this letter i. June
of '96. That's approximately two and a half year. after
they moved in.
Q And what did he mean --
THE COURT. Are we referring to an exhibit?
MR. TURO. It wa. exhibit -- I forget which
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1 exhibit it wa.. It's going to be a new exhibit, Judge, so
2 maybe I'll juat do it that way. I'll have to bring it in
3 through another witn.... I think it wae Plaintiff's 4 or 5.
4 It wae the sewage enforcement notice.
S THE COURT: Plaintiff'. Bxhibit 5, a
6 violation notice?
7 MR. TURO. Yes, the violation notice. That's
8 correct.
9 BY MR. TURO.
10 Q In any event, he al.o talks about placing
11 twelve inches of auitable mineral .oil on the top of the
12 exieting mound and extend the eoil out three feet from the
13 edge of the .tone bed, then slope the eoil berm.. Now, why
14 would he require that?
15 A Becau.e -- again, if you let me refer to thia
16 letter this ia requiring a -- basically redoing the cover
17 of the syetam. What he'. saying is in order to get to
18 the -- it .ay. repair any broken lateral or d.livery line..
19 W.ll, none are indicated to be broken I but if you were to
20 find any, you're auppo.ed to repair them. But in order to
21 get to any lat.ral or delivery line., you have to pull the
22 .oil off the top of the .yateml in which ca.., when you put
23 the soil on, this ia the apecification for recovering the
24 .y.tem. Thi. i. muoh the eame a. what you find on the
25 original .eptic permit .peoifying how you're .uppo.ed to
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cover the system.
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Q Did you _ver go into the .ystem to .ee if, in
fact, there were any broken line.?
A If there were any broken lines, it would be
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15
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above the are. in which they would break. There'. no
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indication of any broken lines. Those lines have holes in
8 the bottom of them. You drill a little hole in the bottom
of the line, and that'. how the water gets pumped into the
system. It appears that the water is leaching out the end
of the system neare.t to the road a. a result, again, of
washout cau.ed by the de.truction of the swale. that were
put in when it was fine graded and .eeded.
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Q Finally, what did Mr. Danner mean when he
talked about having the riser lid extend above the soil
grade?
A That's not a defect. That's sort of a --
18 there'. a number of things on here that are relatively
19 recent developments. Pirst of all, this zabel effluent
20 filter wasn't required and, to the best of my knOWledge,
21 didn't even exist at the time this system was permitted.
22 He'. .uggesting upgrade. to the system, which is fine, I
23 gue... If you want to upgrade the .ystem, you can. But
24 that's not a warranty defect.
25 When he say. excavate around the dosing tank
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and remove the ri.er. and reinstall ri.er. with a watertight
.eal, h.'. got no evid.nce that th.re's not a watertight
..a1 there now, but he'. .aying that would be .omething
that, while you're doing this work, you ought to check, and
you could incr.a.e or you could rai.e the ri..r. Th.
tank i. und.rground. There ha. to be gravity flow from the
house to the fir.t tank, and then to the do.ing tank there
ha. to be gravity. So, therefore, that tank will be
underground to .ome degree, and that varie8 depending on
site conditions on diff.rent lots.
If that tank i8 far enough underground that
it's hard to get to without digging for half an hour or
whatever, ther.'. a ring that can be of varying .ize. that
you can put on there to make it 80 that the opening is
clo.er to ground level. He's 8uggesting that if the tank i.
.ub.tantial1y below ground -- and I don't know without going
out there exactly how far below ground it i. -- but you
would take the cover off the tank. He'. suggesting that if
it'. .ix inche., maybe you don't do anything. But if it'B a
foot und.rground, you can put. riser on there, and you have
to put a .eal around that riser .0 that no ground water
will -- not ground water, .urfac. water will infiltrate
that. Again, ther.'. no apparent problem with that at this
tim..
Q Well, you don't know. You haven't in.pect.d
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1 the .ystem your.elf at all, have you?
2 A Well, he doesn't say that there's a defect
3 with that. He'. .uggesting upgrades to that system. And if
4 you're going to be in the tank, he's saying perhaps you want
5 to make it a little bit more acces.ible.
6 Q Alaa, cou1dn' t ground water seep in if that
7 lid is below ground?
8 A No.
9 Q If it wasn't sealed properly?
10 A If it wasn't sealed properly, .urface water
11 could get into the dosing tank.
12 Q If it wasn't sealed properly, would Ms.
13 Carbaugh have been responsible for the sealing of that lid?
14 A If there was a defect. discovered during the
15 warranty period --
16 Q We're not talking about the warranty period.
17 A -- we would have repaired it. If there wa. a
18 defect that developed, perhaps that seal degraded, it
19 deteriorated, and that happened after the warranty period,
20 ye., she would be responsible for that.
21 Q I'm asking you, did sh~ have anything to do
22 with placing the seal on that tank herself?
23 A No.
24 Q You did it, didn' t you?
25 A My subcontractor completed that syat_ in
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1 oomplianc. with all of the -- in f.ct, that ay.tem wa.
2 in.pect.d wh.n that ...1 wa. in place.
3 Q It'. your t..timony that the l.aching that'.
4 occurring i. compl.tely and tot.lly the fault of M..
5 Carbaugh becau.e .h.'. allowed the yard to di.int.grate?
6 AYe..
7 Q It ha. nothing to do with the way you gr.ded
8 it out initially or your fai1ur. to bring top.oil a. Parmer.
9 Home required?
10 A Parmer. Home did not require that until
11 after -- that wae an additional requir.m.nt after all of the
12 work wa. done, when we a.ked for the e.crow. That wa. not a
13 requirement of compl.tion of the houee. It wa. not a
14 requirem.nt of 8ettlem~nt. It wa. not a requirem.nt of
15 eacrow. It was .om.thing to jerk us .round with later wh.n
16 Angie didn't want to rel.... the .scrow.
17 Q You had received from M.. Carbaugh a whole
18 ~erie. of complaints, a. you .aid, v.rbally, over a long
19 period of time, and it'8 your testimony, I gather, that
20 you've taken care of everything that she complain.d about on
21 the li.t of
22 A We took car. of ev.ry valid we,rranty it_
23 und.r the terms of the PmHA warranty in .pit. of the fact
24 th.t we w.re not given prop.r writt.n notiCe.
25 Q How many home. have you built where the
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1 ..ptio .y.tem l.ak. within two y.ar. of in.tallation?
2
I'v. had a coupl. oth.r cap. blow off like
A
3 that. Som.time. p.opl. hit th.m with the mower and whaok
4 the top off of them.
5 Q I u..d the word l.ak, not caps -- or
6 l..ching. How many other. leach.d within two y.ar. of
7 in.tallation?
8
9
I'm not p.r.onally awar. of any.
A
Q
You don't fe.l any r..pon.ibility for a
10 malfunctioning .ystem within two y.ar. of your in.tallation?
11
I have no re.pon.ibi1ity und.r the warranty,
A
12 and ther.'. actually probably .ome thing. that I did do that
13 I wa.n't r..pon.ibl. for under the warranty. But aft.r I do
14 all of my work and I qualify for a r.l.a.. of the ..crow and
15 I get j.rk~d around and don't g.t my .scrow .v.n aft.r I'v.
16 done the work, at .om. point my charity runs out.
17
Again, ju.t .0 I'm clear, what you have don.
Q
18 in term. of that s.ptic sy.t.m wa. go to h.r hou.. in April
19 of '95, I b.li.ve you .aid, plugg.d in this alarm, nothing
20 happ.n.d, and that'. all you've don. in t.ras of att-.ptin,
21 repair. of the .eptic system oth.r than gluing a oap back
22 on? You've don. nothin~ .1.. oth.r than plug the thing in
23 and rep1ac. a cap?
24
25
At the time of warranty .xpiration, ther....
A
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Do you beli.ve, Mr. Zook, that your only
2 re.ponaibility for the oon.truction of a home i. through the
3 on.-year warranty period?
4
5
6
A
Ye..
Q
So, in other word.
A
B.yond that, it i. voluntarily and charity
7 when I go to do it to .atisfy a cu.tomer. But if I have a
8 customer who i. ab.olutely abu.ing the prop.rty and who i.
9 not releasing ..orow. to which 1 am cl.arly entitl.d to
10 und.r the term. of the e.orow agre.m.nt and I'm a.ked to
11 com. back to do additional work out.ide of the warranty,
12 I'v. don. it in the pa.t for quite a number of cu.tomers,
13 but I'm not r.quired to. When I have a custom.r that treat.
14 u. thi8 way, I think that we're not being unrea.onable to
15 adh.re to the t.rm. of the warranty, m..t our obligation
16 under that, but I don't think w. ar. obligat.d to do any
17 more when we're getting thi. kind of a re.ult to our e.orow
18 r.l.a.. request.
19
Q
So, if the opinion of Mr. Chamberlain, who
~o already te.tifi.d, and oth.r. i. that the way you inatalle4
21 that .y.tem and the way you grad.d it ha. oau..d the Current
22 problem., and .ven if that were tru., and it wa.n't
23 di.cover.d during the warranty period, you don't feel
24 r..pon.ible for it?
25
A
W.ll, fir.t of all, Mr. Chamb.rlain 4idD't
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1 g.t involved in it until w.ll after th.y had de.troyed the
2 .wa2e.,.0 h. wouldn't be qualifi.d to make that kind of an
3 a...rtion. H. indicated on the .tand h. didn't know much
4 about .and mound. at all. In fact, he had no id.a what w~.
5 involved in fixing one. I would qu.Mtion hi. ability to
6 a....s that .ituation.
7 Q My que.tion wa., if it wa. d.termin.d that
8 your in.tallation was defective, is it your opinion today
9 and your po.ition that after the warranty expir.d you have
10 no further re.pon.ibility for this .y.t.m?
11 MR. HESS: I object to that qu..tion, Your
12 Honor. He'. .aying -- he'. talking about that it'. b.en
13 determined that it's defectiv.. Ther.'. be.n no
14 determination that it's d.fective. Mr. Chamberlain didn't
15 te.tify that it wa. defective. He te.tified th.re'.
16 leaching. He'. putting words in hi. mouth now by u.ing that
17 qu.stion.
18 MR. TURO. I gave him a hypoth.tical, Your
19 Honor.
20 THE COURT: Is that prop.r for a party?
21 MR. TURO. C.rtainly. He'. alr.ady te.tified
22 as an exp.rt in the.. installation matter.. H.'. given hi.
23 opinion a. to cau..., so I think that he olearly can te.tify
24 to that.
25 THE COURT I I think it', a legal qg..tioa,
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1 and I'll .u.tain the obj.ction.
2 MR. HBSS. Thank you, Your Honor.
3 BY MR. TURO:
4 Q Do you und.r.tand, again, ju.t .0 w.'re
5 clear, the .ntity that did not rel.as. your ..crow is
6 Parm.r. Home, they're holding your e.crow?
7 A Parmer. Home relea.e. it ba.ed upon an
8 in.p.ction of the work. Parmer. Hom. came out and inspect.d
9 the work, and it wa. done. How.v.r, th.y d.cid.d after I
10 did the work that they were going to r.troactive1y make m.
11 put additional topsoil on. That wa. charact.ristic of the
12 treatm.nt we got from Farm Home. Parm Hom. won't .v.n allow
13 the p.r.on who was out th.re to t..tify at this h.aring.
14 We're g.tting the same kind of tr.atment a. it r.1at.. to
15 this court hearing with Parm Hom. that w. got a. it r.lat.d
16 to our e.crow. Ju.tice i. d.finit.ly not b.ing ..rv.d a. it
17 relat.. to chat escrow out.id. of this oourtroom.
18 Q Mr. Zook, you mu.t have r.al problema
19 und.rstanding my que.tion.. Would you agr.. with ma that
20 it'. Parm Home that has not r.l.a..d your e.crow, not ...
21 Carbaugh?
:l2 A M.. Carbaugh in.tigat.d that, and 1 have
23 docum.ntation a. to the communication. b.tw..n our of 11 c.,
:l4 M.. Carbaugh and Parm Home. PmHA i. allowed to r.l.... it.
25 However, they g.n.rally r.quir. the con..nt of the
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hom.own.r.
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Didn't Mr. Kr....w.ki, in hi. l.tt.r that
3 w.'v. id.ntifi.d a. Plaintiff'. Bxhibit 10, .ay to you, I do
4 not plan to r.l.a.. the e.crowed fund. until the fin.
5 grading and Re.ding of six inches of topaoil i. done?
6
A
And there i. no legal ba.is for that, and I'd
7 love to b. able to litigate th.t with Parm Hom..
8 Unfortunately, the D.partment of Agricultur. i. immune from
9 that.
10
Q
Other than your .tatem.nt that you agr..d to
11 do the r....ding and bring in .ome additional top.oil?
12
A
I offered to do that a. an off.r in
13 compromi.. to resolve this .ntir. .ituation without furth.r
14 waste of time and aggravation by the parti...
15
MR. TURO: I have no furth.r que.tion. for
16 the witne...
17
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THB COURT. Mr. H...?
MR. HESS: Y... Thank you.
MR. TURO: And I would move the admi..ion of
20 11 and 1~. I think th.y'v. alr.ady b..n admitt.d, Your
21 Honor, bu~ I'll move th.m pur.uant to your in.tructiOll..
22
MR. HISS: Pur.uant to your in.truction., I
23 have no obj.ction.
24
THE COURT: All right. Plaintiff'. .xbibita
25 11 and 12 are admitt.d with the condition. r.f.rr.d to in
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the proc..ding thus far.
(Plaintiff'. Exhibit No.. 11 and 12 w.r.
admitted. )
REDIRECT EXAMINATI~N
BY MR. HISS:
Q Mr. Zook, part of M.. Carbaugh'. olaim i.
that you're dealing unfairly with h.r. She .tat.d on the
.tand you've nev.r communicated, you mad. no attempt to
re.olve i..u... They're claiming thi. i. part of your
unfair trade practice.. Mr. Turo ha. put this l.tt.r in.
What are you trying to do with this lett.r?
THE COURT. What .xhibit ar. you r.f.rring
to?
MR. HESS: I'm .orry. Th. on. h. ju.t
.nt.r.d.
THB COURT. That would b. Plaintiff'. Exhibit
12?
MR. TURO: Tw.lv..
BY MR. HBSS:
Q Ixhibit 12, the l.tt.r from you, what ar. you
trying to do?
A I'm trying to g.t this thing to .ettle before
we have to go through a bunoh of litigation on it.
Q Mr. Turo oonveni.ntly pull. out the ODe ltDe
that .ay., w. do int.nd to r....d the lawn under 'be t....
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1 of the warranty becau.e we were aware of the problem of the
2 lawn prior to the expiration of the warranty, and he forget.
3 to go on and read the re.t of it. You have picture.
4 indicating that it wa. done, that it w~s not properly
5 maintained, and it would have grown had .he maintained it,
6 i. that correct?
7 A That i. correct.
8 Q So, when he'. trying to convinoe the Court
9 that that mean. that you're admitting the lawn i. done
10 wrong, is that what you're admitting?
11 A No. I'm admitting that it'. done right --
12 and I have picture. that indicate that -- but, in an effort
13 to re.olve thi., I will go the .econd mile to, again, try to
14 re.olve it and sati.fy the cu.tomer and .atis~y the ooncern.
15 of the partie..
16 Q Plaintiff'. Exhibit 11, the letter from Mr.
17 Turo'. office by Mr. Spott., did Mr. Spotts have any
18 personal rea.on to want to name a.; . __feet. a~ po..ible?
19 A It wa. a .care tactic to threaten me into
20 wanting to do -- actually, I think there were other letters
21 after that in which they demanded large .uma of money to get
22 them off my back.
23 Q Mr. Turo wa. al.o .ort of beating around tb.
24 bush and trying to make the inference that there i. a
25 problem with the .and mound .y.t.., that it'. defecti.. ~
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way that you put it in. I. th.r. any .videnc. at all that
2 you put in a defective .and mound .yst.m?
3
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A Ab.olutely not. That .ystem was in.p.ct.d
while it was open. The .y.tem wa. d.t.rmined to m..t all
S the requirements of the DER p.rmit by the SEO for the
6 town.hip at that time. He .igned off, giving approval to
7 cover. That mean. the entire .y.t.m was corr.ctly in.tall.d
8 and functioning, and that would have even includ.d the ..al.
9 that Mr. Turo brought into quo.tion, b.cau.. that part of
10 the tank would have b..n expo..d for in.p.ction by the 8.0
11 at that time.
12
Q
So, when he .ort of bring. up, well, what if
13 there'. a defective ..al, i. th.r. any indication that
14 there's a def.ctive 8eal?
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I've not be.n made aware of a d.f.ctiv. ..a1.
16 That .eal i. indicat.d on there primarily becaus. th.y have
17 to un.eal it to get into the tank, and, th.r.for., wh.n they
18 go and r...al it, th.y want to make sur. that you're
19 r...aling it right.
20
Q
I. it your t..timony that the leaching that
21 i. occurring now i. a r.sult of M.. Carbaugh'. aisu.. aDd
22
deterioration of the property cau..d by the dogs, the bik..
23 and the de.truction of the swal. and the .ide of the, ....
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mound?
A
Ab.olut.ly. And it'. r.pr..ent~tive of ...,'
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1 abu.e of the entire property, both inside and out.
2
Q
So, there i. no indication that what i.
3 happening today is a re.ult of any defect in the .and mound
4 cau.ed by you?
5
A
There wa~ no defect in the installation of
6 that sand mound whatsoever.
7
Q
They keep bringing up this topsoil. I'm
8 showing you Defendant's Exhibit 18. Would parm Home want
9 top.oil there? I mean, would they prefer to s.e gra.s on
10 a--
11
A
They would like to see a yard, yeah. I mean,
12 Parm Home has a first-hand .ecurity intere.t in this
13 property which is jeopardized by the meintenance of the
14 property. And Parm Home wants to .ee a yard, but you're not
15 going to get a yard if you're going to treat it like that.
16
Q
When you were offering to bring in top.oil,
17 you're offering to help resolve this condition?
18
A
Not becau.e that'. not adequate for
in
19 other words, if that yard was redone with the ourrent soil.
20 on there and it wa. maintdned and not treated that way,
21
that top.oil i. sufficient to grow the grass, a. i.
22 evidenced by the front yard in which you can ... th. .~a..
23
growing.
24
Q
I'm .howing you Defendant'. Ixbi_it. a, J, ..
25 and 23.
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A Twenty-three ha. the .ame exact top.oil up
here in the front a. wa. on the re.t of this whole property.
Q And there'. plenty of gra.. growing?
A There'. plenty of gra.. growing.
Q One of the thing. Mr. Turo mentioned -- he
.aid, have you ever .een, in two year., one of the hou.e.
you built -- have you ever 8een a .and mound go bad? You
couldn't recall. Can you recall, have you ever .een a
property that you've built, after two year., look like thi.?
A No.
Q How about clo.e to this?
A No. That'. No.1 by far.
Q Have you ever .een anybody in, let's .ay,
five years of living in one of your properties take care of
their property like thi.?
A No.
MR. HESS:
THB COURT:
I have no further que.tion..
Mr. Turo?
MR. TURO. Nothing ehe.
THE COURT. You may step down. Thank you.
THE COURT: Any further te.timony, Mr. .e..?
MR. HESS: Ye., 'lCour Honor. Mr. Burke wou14
like to conduct the next wi tn....
MR. BURKE. With the Court'. pe~..101l,
Thoma. Burke, B-u-r-k-e, on behalf of the defen.e.
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1 JOHN R. JARRBDD
2 having been duly aworn, testified as follow.:
3 DIRECT EXAMINATION
4 BY MR. BURKE:
5 Q Mr. Jarredd, could you tell Hill Honor what
6 you do for a living?
THE COURT. Pirst, may we have, for the
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19 Q Mr. Jarredd., what do you do for a living?
20 A New construction work.
record, Mr. Jarredd'. full nam..
THE WITNESS. John R. Jarredd.
THE COURT: Where do you have your bUlliness?
THE WITNESS. 1573 Path Valley Road, Port
Loudon.
THE COURT. Pennllylvania?
THE WITNESS. Yes.
THE COURT: Thank you.
MR. BURKB. May I, Your Honor?
THB COURT. Certainly.
BY MR. BURKE.
21 Q Specifically, oonlltruotion covel'. a wi4e
22 range of joba. What speoifically do you do regardlllf
23 construction?
24
25
Sand mound., dig fOUDdatlOll., final pd1".
Let's specifioally refer to .U14 1Mua4..
A
Q
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When you say sound mound, do you mean sand mound septic
systams?
A
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A
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public septic?
A
Ye..
Do you install those 8ystems?
Yes.
Do you install other kinds of septio systems?
Yes.
What other kinds?
Conventionals.
What do you mean by conventional.?
They're an in-ground septio system.
That goes out to the street, and there's a
Well, that's one. That'a just a publio
sewer. Conventional is in-ground, like you dig a hole and
fill it full of stones, put the pipe in it and then cover
it. It's not on top of the ground like a sand mound.
Q The sand mound i. a third kind of a sy.tem,
correct?
A Ye8.
Q Now, approximately how many aand mound
systems have you in8talled in your employment a. an
excavator?
A Probably fifty or sixty.
Q Fifty or sixty?
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MR. BURKE: Your Honor, at this time I'd like
to a.k qu.stion. r.garding the exp.rtis. of .and mound
.y.t..s, and I off.r Mr. Jarr.dd a. an .xp.rt in that ar.a.
THI COURT: Mr. Turo?
MR. TURO: I'm ju.t going to a.k for an off.r
of proof .0 I'm cl.ar .xactly where w.'r. going with this
witne... Do you do the installation of the .and mound?
MR. HESS: If I may, Your Honor. Mr. Jarr.dd
also i. going to t..tify that h. w.nt out at the dir.ction
of Mr. Zook'. employment and repaired the cap .y.t... K.
also examin.d the sy.t.. in que.tion and found that th.r.
was no d.f.ct in the alarm systam b.cau.. the pump was, in
fact, working. He'. also going to te.tify a. to the valu~
of how much it would actually co.t to fix any defeot in the
.y.tem, b.ing that the all.gation. ar. that th.r.'s
$10,000.00 worth of damage or $10,000.00 in the Plaintiff'.
p.tition required to make the Plaintiff whol.. Mr. Jarredd
i. going to have t.stimony that's wholly diff.r.nt. In
fact, the Plaintiff'. wi tn... th....lv.o, Mr. Chamb.rlain,
.aid he had no id.a how much it would co.t to fix the
.yst.m. H. had no idea if the .y.t.. .v.n n..d.d to b.
fix.d. Mr. Jarr.dd is being call.d by the d.fens. to
obviously answ.r th... qu..tion. that haVen't been an...~..
at all.
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THI COURT. Mr. Turo?
MR. TURO: That an.wer. my que.tion.
MR. BURKS: May I, Your Honor?
5 to this witne..' being permitt.d to te.tify a. an expert in
THS COURT: Mr. Turo, you have no objection
6 the area of .and mound.?
10
7
8
9 BY MR. BURKE:
Q
MR. TURO. No.
THE COURT: All right.
Mr. Jarredd, I want to draw your attention
11 back to the .pring of 1994. Did you go out to 337 Walnut
12 Dale Road?
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:as
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Carbaugh?
A
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A
problem wa..
Q
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and reglued it.
Q
Thank you. I. that the hODe of Angie
Ye..
Why did you go out there?
To inspect the .and mound and ..e what the
Okay. Tell the Court --
And I found that there wa. a pipe b~oke oCI
She told me that the .l.~ kept golag 011.
I
Let m. .top you there. WIlen Yq\l .aw the pl,-
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1 A Y.. .
2 Q Now, if that wat.r not diffudng through the
3 mound for some r.ason, then the alarm will go off?
4 A Right.
5 Q It will riee high.r in th~ .econd tank, and
6 it will .ignal .aying that th.re's a problem in the .econd
7 tank?
8 A What'. wrong -- what could happ.n, the float
9 could b. ..t wrong, which the float will come on -- the
10 alarm will come on before the pump come. on.
11 Q I.... That would b. an indication of why
12 the alarm wa. going off?
13 AYe..
14 Q When you .xamined - - when you w.r. out at the
15 property in the .pring of '95, you check.d on th. alarm
16 .ystem, correct?
17 AYe. .
18 Q What did you d.termine wh.n you look.d at it?
19 A Well, I had nothing there to fix it with, but
20 I figur.d the water wa. down in the tank. I had no way
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really to t.ll ju.t by looking at it.
Q Did you look into the tank?
A Ye..
Q Wa. the tank full of efflueDt water'
A No.
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Which would indicate what to you?
That the pump's still working, but the
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re.et it.
Q
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How do you re8et it?
,
Rai8e it up higher.
With your own hand or a screwdriver?
'.
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Yes, yes. It's tied to a pipe or to the side
13 of the tank to hold the adjustment.
14
Q
About how much would it cost for you to go
15 out and -- you're a contractor, correct?
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A Ye8.
Q And you work on 8and mound syst_.?
A Ye8.
Q Is it fair to .ay that you install th_?
A Yes.
Q I8 it fair to aay that you a180
THI COURT. Wai t, w.i t . Tha t' a going laUch to
23 fa.t for the 8tenographer.
24
MR. BURKIlI I apologi.e. I apolo,i.e to tbe
25 Court. I'll 8low it down.
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1 BY MR. BURKB.
2 Q I. it fair to say that you go out and you fix
3 systems on oocasion?
4 A Yes.
5 Q And if you were called to go out to a
6 property and adju.t the float a~ on an alarm aystem, how
7 much would it coat?
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15 mound, what happens to the effluent water coming from the
16 seoond tank?
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A Probably around $75.00 to adjust the float.
Q Seventy-Uve dollars?
A Ye..
Q Not 10,000?
A No.
Q Now, regarding the aand mound system in
queation, if there'. not enough topsoil on a particular sand
A It could come out the aida.
Q Is that a problem?
A Ye..
Q What kind of problem is that?
A Well, it need. to be fixed.
Q That means to me more soil need. to be put
down, correct?
A Yes, um-hum.
MR. BURKB. Court's indulgence. May I haVe a
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minute, Your Honor?
THIl COURT: Certainly.
(Brief pause.)
BY MR. BURKB:
Q I want to refer you to Defendant'. Ixhibit
16. In front there, there are three white cylindrical pipe.
coming out of the ground, correct?
AYe..
Q What are they?
A They're a clean-out for the aand mounds. We
call them clean-out laterals.
Q When you firat began testifying, you referred
to -- you said you repaired a cap. Is that one of the cap.
you're --
A Well, it would be right here in the --
THE COURT: Wait, wait. You have to let the
attorney finish his question, and then the stenographer can
pick up your anawer following that. What was that question
again?
BY MR. BURKEl
Q Mr. Jarredd, when you first testified, you
testified that when you fizat went out there you repaired a
oap?
A Yeah.
Q Is that true?
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Q Referring to Photograph No. 16, are the.e one
of the white cap. that you fixed?
AYe..
Q Now, specifically referring to Defendant'.
Exhibit No. 18, do you .ee here in the back corner, i. that
the .and mound in que.tion?
AYe..
Q Now, could you tell for Hi. Honor, in your
experience, what are .ome po.sib1e cau.e. of the 10.. of
.oil on top of a .and mound?
A Well, it could be on account of not being
seeded and no gra.. being on it.
Q I. it fair to .ay that this would be cau.ed
by er.o.ion?
AYe..
Q In your experience, doe. water runoff on a
property .ometime. damage .and mound.?
AYe..
Q Take a look at No. 18 here. Do you .ee tbi.
area? Thi. i. the .and mound, correct?
AYe..
Q Thi. i. downhill from this upper are.,
correct?
AYe..
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1 Q You'll notice here where there's a dog just
2 to the left of the .and mound?
3 A 11m-hum.
4 Q And there'. another dog further up to the
5 left, up the hill?
6 A Yeah.
7 Q Do you .ee tho.e mark.?
8 A Yes.
9 Q Do you also see down here bebind the home
10 that there'. dirt rut., tire rut. through the ground?
II A Yes.
12 Q In your experie~ce, Mr. Jarredd, if water wa.
13 running downhill through the back of the house and the water
14 went down over the swale of the .and mound, would that
15 affect the amount of .oil on top of the .and mound?
16 AYe..
17 Q Would it therefore also affect the ability of
18 the soil on the sand mound to ab.orb the effluent water
19 coming out of the tank?
20 AYe..
21 Q I would like to now refer to Plaintiff'.
22 Bxhibit 4. Take a look at that document, if you will, Mr.
23 Jarredd, introduced on behalf of the Plaintiff, by the
24 Southampton Town.hip .ewer enforcement officer, Jeffrey
25 Danner, regarding .ome lists of thing. Mr. Danner felt
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1 appropriate regarding the .eptic tank upkeep and
2 maintenance. (Brief pause.)
3 Did you get . chance to look at that list,
4 Mr. Jarredd?
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6
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Yes.
Q
Let's go over some of the items on this list.
7 The first item that the sewage enforcement officer, Mr.
8 Danner, wrote down is remove .eptic solids from the septic
9 and dosing tank. That i. a matter t~at is . maintenance
10 matter, am I correct?
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Yes, unless you have to work on it.
In other words, in a sand mound sy.tem Buch
Q
as the one in question, the first tank fills with solid
14 material, correct?
15
16
A
Yes.
Q
When that tank is full, the owner of the
17 property must call someone to have that solid material
18 removed, correct?
19
20
A
Yes.
Q
Regarding a zabel A1800 effluent filter, in
21 your experience a. an excavator, in 1993, when this B~tic
22 system was installed, did that system even exist?
23 A I have never put none of tho.e in until lib
24 last year. Each township is different.
25
So, in your experience, it'. a f.il'lra..,:~
Q
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revolutionary type of fi1t.r for a sand mound system?
A Yes.
Q Now, Mr. Jarredd, if you were call.d out to a
prop.rty, not n.ce..arily this property, but any prop.rty,
and you were hired to make the repairs on this li.t, the.e
maint.nance and upgrading matters that Mr. Danner wrote
about, including the last matt.r whioh state. placing more
.oil on top of the .and mound, how much would you -- as an
.xcavator in the community, how much would you charge?
A To do all of th..., I'd say around 700 to
$900.00.
Q Sev.n to nine hundred dollar.?
A Yes.
Q Not 10,000?
A ~.
Q Are you familiar with other excavator. in the
community who do the .am. kind of job a. yourself?
A Yes.
Q Are you familiar with their prioing
schedules?
A
Q
A
Y.s.
Are th.y similar to yours?
Yes.
Q Is it fair to .ay that any other ..o.y.to~
would al.Q charge a similar amount?
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correct?
A
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sure the pump
working?
A
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Mr. Jarredd, did you take notice of any
2 .wale. on the property that were directing water away from
3 that .and mound?
4
5 a. the .wale..
6
A
I really didn't look around that much a. far
Q
Would you agree with me that it'. ab.o1utely
7 critical to divert ground water from the top of a .and
8 mound?
9
10
A
Ye..
Q
In your experience a. a profe..ional, you
11 would, of course, excavate and grade the property when you
12 in. tall a sand mound to take that water completely away fro.
13 there?
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15
16 contractor?
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that?
A
A
Ye..
Q
And that'. your re.pon.ibility a. the
Yes.
It'. not the homeowner'. reepoDeibil1ty to do
No.
21 Q Would you agree with .e that if th1. sY.':.
22 ie leaching today it'. very likely that it could b. ..~,
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23 water getting into that sand mound?
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25
A It could be.
it that much, a. far a. the
I mean, I really ,Ii.", 1_ .".,'
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ground level, how l' ...
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2
Q And the best thing to do, would you agree
with me, would be for somebody to go out there and dig into
3 the .and mound and see if there are broken lateral., check
4 inside, et oetera?
5
A
You could probably tell if there was any
6 lateral. leaking. I mean, they would be coming up on top of
7 the ground.
8
Q
What would it co.t to completely replace that
9 sand mound?
10
A
The whole thing?
The whole thing.
Three to five thou.and, depending on the
11
Q
12
A
13 si.., which I don't know exactly what it i..
14
Q
So, if it wa. determined that the entire
15 ayatem wa. defective and had to be removed, it would co.t at
16 lea.t between 3 and $5,000.00, at lea.t?
l7
18
A
To replace the whole thing, yes.
Would your price include regrading of tbe
Q
19 property in order to have the water away?
20
A
Ju.t around the mound.
21
Q
Well, I'm talking about regrading the ..ti~.
22
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property.
A
No.
Would you agree that that would be part .f
Q
25 any permanent .01ution in thia ca.e, that that pr.,.~ty
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1 .hould be graded to take the ground water off the mountain
2 and completely away from
3
A
It would dapend on how it i. right now. I
4 believe I'd have to .ee it.
5
Q
What I'm a.king you i. if, in fact, the water
6 i. running off the mountain and getting to the .and mound,
7 that could be part of the problem, wouldn't you agree with
8 me?
9
A
Ye..
Q
A permanent solution would have to be to
11 create a .wale that would permMnently take all water coming
12 off the hill away from the .and mound?
13
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Yes.
15 i.n't it?
Q
That'. the re.ponsibility of the contractor,
16
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UBI-hum.
Q
It'8 not the re.pon.ibility of the homeowner
18 to go out and build .wale., is it?
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A No.
Q Did you ever a.k a homeowner to build a
swa1e?
A No.
Q Did you ever .ee a dog de. troy an entire
.wale?
A
Not really.
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Q So, ba.ically, the contractor ha. the
re.pon.ibility of doing that, and that i. an e..ential part
of making .ure the ground water doe. not get into that .and
mound, right?
A Right.
Q Ju.t.o I'm clear, when you went out, you did
not actually fix the tank alarm?
A No.
Q Even though you knew there may be a problem.
In fact, I think you .aid it wa. set improper?
A Right.
Q Now, would M.. Carbaugh have .et that at all?
A No.
Q So, to thi. day, the prnblem with that .and
mound ha. never really been fixed by you or anybody that you
know Mr. Zook hired?
A A. far a. the alarm, that I know of, no.
Q And you never went in. ide the .and mound to
look at what'. going on in there, right?
A Right.
Q But from what lI'ou've heard, you know there'.
a defect?
A It could be, ye..
Q Do .and mound. leach?
A No.
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Q Are they .uppo.ed to l.ach?
A No.
Q If you hear that a .and mound ha. leach.d
within two y.ar. of in.tallation, what do you think?
A It'. hard to .ay. It'. on the condition. of
the ground and how it wa. taken care of, I gu....
Q W.ll, my question i., doe. that .ound like a
probl.m?
A Y...
Q Would you .ay that in mo.t ca... that'. an
in.tallation problem?
A Not alway..
Q But it could b.?
A It could be.
Q And it could have a lot to do with the way
the prop.rty wa. graded in t.rm. of building .wale.?
A Y...
Q And you've n.ver ...n a dog d..trQY an entire
.wal.?
A No, I've n.v.r r~ into that.
Q To build a .wale, wouldn't you actually have
to build up almo.t like a mound of dirt that would then
channel water away?
A No. You would cut it down low.r than the
mound.
195
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1 Q You would cut it down, but you would aotually
2 build a ditch?
3 A Yeah, and it wouldn't have to be that much,
4 juat small, to make the water flow.
5 Q But, again, you didn't notice whether or not
6 that wa. done properly?
7 A No, I did not.
8 Q But if it wa.n't done properly, it would have
9 allowed water to come acro.s that sand mound?
10 A Yes.
11 MR. TURO. Thank you, Mr. Jarredd.
12 MR. BURKE: Briefly, may I, Your Honor?
13 THB COURT: Certainly.
14 REDIRECT BXAMINATION
15 BY MR. BURKS:
115 Q Briefly, Mr. Jarredd, when you went out
17 there -- let me .tep back. Counsel a.ked you how much would
18 it cost to replace the total system, and it would be
19 $5,000.00, correct? I. there any evidence that you
20 determined while you were out there or through any
21 communication with Mr. Zook that the .y.tem -- the pipe.,
22 the tanka doesn't work?
:l3 A No, .ir.
24 Q Is there any evidence whatsoever that you've
25 ever .een oz heard, through communications with Mr. Zook,
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paper., apeaking to enybody involved in this ca.e, that the
tank. and the pipe., which cost about $5,000.00 to get and
inata11 -- that any of thoae thing. do not work?
A No, .ir.
Q So, the firat time you've ever been .uggested
that it would coat $5,000.00 to replace the whole sy.tem i.
when Mr. Turo aaked you, correct?
A Correct.
Q There'. no evidence of that?
A No.
Q So, when you went out to the property in the
apring of '95, did you notice whether the swales were
improperly -- were built around the .and mound?
A I really didn't take notice. I wa.n't
looking for that.
Q Now, if a eand -- if a .wale had been built
properly, then it divert. the water away, correct?
AYe..
Q But if .omething interfere. with the flow of
that water, .uch a. a rut coming acro.., cauaed, .ay, by
maybe a dog on a chain, that would then prevent the .wale
from working properly, correot?
A If it waan't cut deep enough the first time,
Y...
Q Or if the dog wore a ditch deep enough
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again.t the awale, correct?
A Yes.
Q And it would ohange the flow of the water a
little bit, ju.t enough to run over the sand mound, oorrect?
A It could.
Q But you don't know, you're not there watching
it happen?
A No.
Q But any deviation in the swa1e would cause
water to run a different way, correct?
A Correct.
Q So, if water wa. coming downhill, it's
aupposed to go in the .wale, and if it's not going in the
awale, it's diverted, and it could run over the .and mound
and cau.e ero.ion, correct?
A Right.
MR. BURKB: I have nothing further. Thank
you.
THB COURT:
MR. TUROI
THIl COURT.
MR. HBSS:
Mr. Turo?
Nothing el.e, Your Honor.
You _y step down. Thank you.
We have no further witn....., YO\l~
Honor.
THIl COURT.
MR. TURO:
Mr. Turo?
Your Honor, we ju.t hev. OD. .e2Y
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brief rebuttal witne.., Mr. Shelly.
THOMAS E. SHELLY
called as a witne.. in rebuttal,
having been duly .worn, te.tified a. follow.:
DIRECT EXAMINATION
BY MR. TURO:
Q State your full name for the reoord.
A Thoma. E. Shelly.
Q You'd better spell Shelly.
A S-h-e-l-l-y.
Q And your bu.ine.. addre.., Mr. Shelly?
A 9495 Mercer.burg Road, and that'.
Mercer.burg, Pa.
Q What i. your capacity currently in referenoe
to Southampton Town.hip?
A X am Southampton'. ..wage enforcameDt
officer.
Q And have been .0 .ince when?
A November of '96.
Q Did you replace Jeffrey Danner, the former
SIEO?
AYe..
Q X. your background in -- I'm a..~Dg you're
a licen.ed SEO through the Commonwealth of Pftnn.ylvaDia?
A Ye.. We're licen.ed by the .tat..
"
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1 MR. TURO: 00 you have any que.tion. on
2 qualification., Mr. He..?
3 MR. HESS. No. I have no objection to hi.
4 qualification. or his te.timony regarding aand mound
5 ay.tem..
6 (Plaintiff'. Exhibit No. 13 wa. marked for
7 identification.)
8 BY MR. TUROI
9 Q Mr. Shelly, have you followed up on the
10 ..wage mal. function at the Angie Carbaugh property?
11 A Ye8.
l2 Q I'm going to lIhow you wha t'. been marked
13 Exhibit No. 13 and a.k if the.e are the official document.
14 involved with the malfunction?
15 AYe.. I believe this ia everything that ha.
16 taken place.
17 Q Ju.t ao we're clear, the.e include the repair
18 permit that was i..ued by Mr. Danner, i. that correct?
19 A Yes.
20 Q And the document that li.ted what ha. to be
21 done that we've all been di.cu.sing that had been admitted
22 in another document, and I believe also notioe of violation.
23 and your notice of November 27, 1996?
24 AYe..
25 Q Have you per.onally gone to the property &Dc!
200
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1 inapected this malfunction?
2
3
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6
A
Yes.
Q
Is the system currently malfunctioning?
I
~
A
Yes, it is.
Q
Why is it malfunctioning?
A
The visual problem is a leaching on the lower
7 side of the .and mound into -- eventually into the side
8 ditch of the road.
9
Q
Have you determined for YQur.elf what is
10 causing the leaching?
11
A
I have some determinations of what may be
12 cau.ing it, yeah.
13
14
Q
What are those determinations?
A
I think the biggest single factor is runoff
15 into the system.
16
Q
Were you able to detect whether or not there
17 were swales out at the property taking water off the
18 mountain?
19
A
There's nothing there visually now, but I
20 would say that there were.
21
Q
In other words, is it your opinion that thsre
2~ are no swales?
23
24
A
There are not now.
Could you tell if there ever had been a
Q
,
"
25 swa1e?
201
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1 .uggested that additional .oil be plaoed ~n the top of the
2 .and mound?
3 A I believe, in hi. re.pons. there, he is
4 referring to the replacement after repair. are done within
5 thG system itself.
6 Q Is it unu.ua1 for a .ystem that's been
7 in.talled to fail within two years?
8 A No.
9 Q It's not unusual?
lO A It'. unusual, yeah.
11 Q Generally .peaking, is that consumer problem.
12 or installation problem.?
13 A Within that time period, u.ually
14 installation.
15 Q Did you ... anything that would indicate that
16 Ms. Carbaugh herself was causing thi. leaching?
17 A I would say not.
18 Q Would it appear to you -- is it your opinion
19 that it's an installation problem coupled with a ground
20 water problem?
21 A Yes.
22 Q I'm sorry?
23 A Yes.
24 MR. TURO. I have no further que.UOIl.. I
25 would move for the admi.sion of Plaintiff's No. 13.
204
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1 A I can' t an.wer that, really.
2 Q Okay. Now, you didn't look at this property
3 until what, two and a half year. after the property wa.
4 complete?
5 AYe. .
6 Q In your experience, Mr. Danner, the current
7 SEO, when he went out to inspect the cover, would he have
e lQoked for swales and made a judgment on runoff?
9 A No. Hi. -- I gue.., first of all, the crew
10 where the cover had came from -- the sewage officer previous
11 to him --
12 Q Okay. Mr. Neff?
13 A Yeah. Mr. Neff doe. not require a final
14 he offers t.he final to cover the system, but not an
15 in.pection that would come after everything was complete.
16 Q Are you familiar with parm Home inspections?
17 A Not really.
18 Q Did the town.hip receive any notice
19 what.oever of a problem with the .and mound .ystem prior to
20 January 6th, 1995?
21 A Not to my knowledge, no.
22 Q Did you notice anything in the file that
23 would indicate that there wa. a problem?
24 A No.
25 Q They te.tified that it could be an indioatioa
2015
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1 that the .and mound -- thmt .omething wa. defective in it
2 becau.e it'. malfunctioning in two year.. Could it al.o be
3 cau.ed by the homeowner and her upkeep of the property?
4
5
That could contribute to the problem.
A
Q
I take it you in.pect hou.e. allover your
6 town.hip?
7
8
A
Ye..
Q
Referring to Defendant'. Bxhibit 18, can you
9 name any other -- and 21 and 22, all of the.e picture. here,
10 can you name any other property in your town.hip that i.
11 kept in this condition?
12
I think it wouldn't be too hard to find
A
13 other. in .imilar condition.
14
Would you consider that the typical homeowner
Q
15 in your town.hip?
16
17
A
No, it'. not.
Q
Or i. that a fairly poor -- indicative of
18 fairly poor maintenance and upkeep?
19
I think it'. been pointed out that the~e ..y
A
20 have been problem. along the way with the initial
21 e.tabli.hment, but that .how. me that, you know, we dca't
22 have a good .oil cover there, g~a.., whatever.
23
Let me ju.t -- I want to hear you~ .ftl~~"',
Q
24 more time. You can't say beyond fifty perceat o.~t.1a.~
, . ' , I
25 that awale. were improperly put in back a. of JaD~*7 .~,
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1994, when the property wa. fini.hed?
A That'. correct.
MR. HISS. Thank you. I have no further
que.tion..
THB COURT. Mr. Turo?
RIDIRECT lXAMINATION
BY MR. TURO.
Q Mr. Shelly, jU8t .0 I'm clear, you .ay that
there are currently no indication. of .wale. there at all,
bUical1y?
A That'. correct.
Q In other word., it doe.n't even appear, I
believe you te.tified, that there were ever .wale. chere?
A You cannot .ee anything evident of that.
Q Again, in area. even where the dove .re not?
AYe..
Q So, ba.ed on your review and your opinion,
would it be your opinion that .wale. were placed there
properly initially?
A I would .ay not adequat. .wal.. wer. put in
at that time for what we have up.tr....
Q In othar word., knowing the wIlele tGp08lrapby
there, the .w.le. were not placed properly in tbe lilr._
place?
" ,
A No.
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Q If they were placed at all?
A Correc t .
Q That could, in fact, be what i. tha problem
here, not just dog. on chain., right?
A Yes.
Q Now, ju.t so we're clear about .omething
el.e, as.uming fixing the runoff doe.n't solve the problem,
then additional repairs will have to be done to that .and
mound?
A That's correct.
Q Because it is malfunctioning?
AYe..
MR. TURO: Nothing further.
THE COURT I I didn' t catch that la.t
qu..tion, Mr. Turo. What wa. it again?
MR. TUROI I .aid that if .olving the ground
water problem doe. not fix the .and mound'. malfunction,
additional repair. will have to be mad. becau.e it i.
malfunctioning, and I believe h. agr.ed with me.
THE COURT I Mr. Hes.?
RECROSS-EXAMINATION
BY MR. HESS:
Q June of '96 wa. tha fir.t tima you .aw tha
property?
A No. My in.paction wa. in Nov.-ber 01 'tl.
209
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November of '96?
,
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Q
,
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A
About mid-November, juat prior to my letter
3 coming out.
4
5
6
Did Mr. Turo contact you regarding that
I,
Q
property or anybody from Mr. Turo'. office?
A Not at that time. Not at that time.
That
,
,;
I
7 wa. the townahip a.king me to go follow up on Jeff Danner'a
8 violation.
Q
That'. in November of '96. Again, that'a
three years later, and you can't te.tify whether th.re waa
,
12
11 or waan't a swale or whether there wa. a awale and it got
covered up or that there wa. a awale that deteriorated?
, ,
,
13
14
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22
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You can't testify what waa there Janu~ry 7th, 1994?
t'!
A
No.
Q
And you can't taatify or give ua any avidence
regarding anything in your file that would indicate that
there wa. aomething improper on the property?
A No. There'. nothing in the file to that
effect.
MR. HISS. Thank you.
THIl COURT. Mr. Turo?
MR. TURO. Nothing alaa.
THI COURT. You may at.p down. Thank you.
Mlt. TURO. I'd aak that M~. 8helly be
excu.ed.
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THE COURTl Mr. He..?
MR. HESS I I have no objection. to that.
THE COURT: Mr. Shelly, thank you very much
for taking your time to testify today. You're excused.
MR. TUROI We rest, Your Honor.
THE COURT: Mr. HeS8, is there any
.urrebuttal testimony?
MR. HESSI
THE COURT:
Nothing further, Your Honor.
We'll enter this Orderl
(The following Order was entered by the
Court I )
"AND NOW, this 11th day of June, 1997, upon
con.ideration of the Plaintiff's complaint in the
above-captioned matter and of the Defendant's counterclaim,
and following testimony received over the cour.e of two day.
in a nonjury trial, the record i. declared clo.ed, and the
matter. is taken under advi.ement."
THE COURTl What I would propo.. to do i.
enter an Order within the next several day. adjudicating the
case. If post-trial motions are filed, I would write an
opinion supporting the Order, but I'll try to get a deci.ion
down within the next several day..
MR. TUROI Thank you, Your Honor'.
MR. HESSI Thank you, Your Honor.
(Court wa. adjourned at 11120 a...)
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/0/)..0 !q7
-tt I (I
ANG1.E L. CARBAUGH,
Plaintiff
IN THE COUR'l' OF COl'li'lUl'l PLEAS Of
CUHBERLAND COUll'!"', PBNHSYLVAtlIA
v.
CIVIL I,C'l'IOll - Lh\/
OAKWOOD HOMES, INC.,
Defendant
96-2178 CIVIL TEkl'l
IN RE: OPINION PURSUhll'l' TO PA. n.h.p. 1925
Oler, J., October 20, 1997.
In this civil case, Plaintiff, Angie L. Carbaugh (he~einafter
Carbaugh), filed suit alleging b~dach of conLract, violation of
,
,
Pennsylvania's Unfair Trade Practice" "nct ConSUI""r I?rotection La\!,
and negligence after contracting \lith Dafendant, Oak\lood Hawaii!,
Inc. (hereinafter Oakwood), for the construction of b. homa at 337
Walnut Dale Road, Shippensburg, Southampton '.l'o,mship, Cumberland
County, Pennsylvania.
By agreement of counsel, the negliganca
count was withdrawn.' Plaintiff allaged th"t the house suffered
from various construction dafects, including problelllS with the
septic system, and sought damages in excess of $30,000.00. A
counterclaim was filed by Oak\lood for certain sums placed in escrow
at settlement.
,
,
Following a non-jury trial, by Orde~ of Court dated June 12,
1997, the court found in favor of Plaintiff and against Defendant
in the amount of $2,500.00, which it concluded 'lould cover tha cost
.\
of correcting septic system problems on Ca~baugh's property, with
interest sec. leg. from June 1, 1994.' ilo Illations for post-trial
relief were filed. Oakwood h"s appealed to the Suparior Court from
N.T. 5, Nonjury 'rrial, April 23,
(hereinafter, N.T. ___).
Order of Court, dated June 12, 1997.
1997 and June 11, 1991
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NO. 96-2178 CIVIL TERM
funds were not to be released until all the work was completed."
Carbaugh and her two children moved into the home in January
of 1994." Shortly after moving in, Carbaugh concluded that there
were various deficiencies in ~he construction of her home." She
drew up a list of complaints and mailed it to Oakwood in February
of 1994.'0 She also discussed her complaints on the telephone with
employees of Oakwood."
The first item on the February, 1994 complaint list indicated
that the "sandmo[u]n[d] need[ed] fixed. ,,"
Shortly after moving
into the house, Carbaugh noticed that the sand mound of the septic
system was leaking." Liquid leaked out of the top of the pipes of
the sand mound and out of the ground." In addition to her letter
of complaints, she told Oakwood employees of her septic .Y8tem
problems in telephone conversations."
17
N.T. 31, 61; Defendant's exhibit 10.
"
N.T. 8, 12.
10 N.T. 13, 52; Plaintiff's exhibit 2 (handwritten .h.et elf
complaints dated February, 1994).
20 N.T. 14-15, 52; Plaintiff's exhibit 2.
21 N.T. 13, 15.
" N.T. 15; Plaintif f' s exhibit. 2.
II N.T. 13-15.
H rl.T. 48.
" N.T. 15.
4
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NO. 96-2178 CIVIL TERN
Carbaugh's dissatisfaction with the construction of her home on
several occasions." Zook admitted that during the \'Iarranty period,
in the spring of 1994, Carbaugh notified Oakwood that her sewage
system was not working properly. '"
In response, Oakwood sent a
gentleman named John R. Jarredd to examine the septic eystem.J1
Jarredd is an excavator."
lie installs sand mound septic
systems, digs foundations, and doas final grading."
Jarredd
testified for Oakwood at the trial.
Hhen Jarred arrived at
Carbaugh's property water could be observed coming out of the top
of one of the sewage pipes of the sand mound.40 He found that one
of the caps on the sewage pipes of the sand mound had blown off."
The caps on the sewage pipes seal off the pipes sO that the water
in the system will be forced out through holes in the bottom of the
pipes, and not on the top.41 Jarredd glued the cap back on. 4)
At this time, Carbaugh also told Jarredd that the tank alarm
.
.
NO. 96-2178 CIVU TERM
kept going of!." In respollse to Carbaugh's February, 1994, le1;1;er
of complaints, Oakwood had sent an employoil.a out 1;0 her proparty to
investigate the tank alarm problem." 'l'his employeoa had informed
Carbaugh that a wiring problem was causing the tank alarm to go
of!." He attempted to fix the wiring; ho\vever, the tank alarm
continued to go off." At trial, Jarredd testified that \/hen he was
at Carbaugh's property he felt that an impropoarly functioning float
arm in the tank could have been causing the tank alarm to go off."
However, he noted that he "had no \/ay really to tell juot by
looking at it."" He also indicated that he had never examined the
inoide of the septic syotem to ascertain what exactly was wrong
with the system that was causing the alarm to go off.'.
Item number ten on the February, 1994 complaint list indicated
that the "landscaping [was] not done." '1 In a letter dated June 13,
1994, Carbaugh had informed Oakwood that she was "terminat[ing) the
change order dated 1-7-94 due to the fact that items listed have
" N.T. 179-80.
" N.T. 18.
" rd.
" rd.
u N.T. 18l.
" rd.
.. N.T. 194. "
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" Plaintiff's exhibit 2.
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NO. 96-2178 CIVIL TERM
not been completed by [Oakl/ood] as agre.:d. ,," OakllOOd had thell
attempted to grade and :3eed the prop.:rty on June 16, 19941"
however, the work done was not satisfactory to either Carbaugh or
the FHA." Oakwood has not done any additional grading and seeding
since that time." Furthermore, Carbaugh noted that Oakwood had cut
down the trees around the sand mound, but had left the stumps."
Also, members of Carbaugh's family, not Oakl;ood, dug a telephone
ditch on her property."
David Philip Chamberlain testified on behalf of Carbaugh at
the trial. He has worked as a construction analyst for the FHA
since 1985." He reviews construction plans and specifications. for
conformance with FHA codes and regulations and monitors the
progress of the construction to assure conformance with the codes,
plans, and specifications and to identify when work has been
completed so that FHA funds can be released." In January of 1996
Chamberlain received a request from the FHA to conduct a field
" Defendant's
., N.T. 135.
" N.T. 32.
" N.T. 147.
" N.T. 47.
" Id.
" N.T. 57-58.
59 N.T. 58.
exhibit 11 (note dated June 13, 1994).
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NO. 96-2178 CIVIL TERM
visit to Carbaugh's home to monitor thd progrdlils of tha
construction. ',j
His first visit to Carbaugh't! propdrty lias January 31, 1996."
Following hil'3 inspection of the proptlrty, he filed a repor"t which
listed various items of construction I;hich had not yet been
completed." Chamberlain indicated in hit! report that Oakwood's
landscaping efforts Wdrd "not acc:eptabl.a. "" Chambodrla.in tdstliiodd
that he found the initial landscaping done by Oakwood deficient in
many respects, including a lack of adequate topsoil."
During the January inspection, Chamberlain also discussad the
ongoing sewage leakage problems on the property with Carbaugh."
Chamberlain conducted a full, insp."ction of the sand mound on
February 25, 1997.'6 At trial, Chamberlain estimated that fixing
the sand mound would cost approximately $4,000.00 to $5,000.00.67
He also estimated that it would take from $2,500.00 to $3,000.00 to
60 NIT. 59.
61 N.T. 62.
" Plaintiff's exhibit 7.
" N.T. 65; Plaintiff's exhibit 7.
.. N.T. 71-72.
0' NIT. 66.
.. N.T. 66; Plaintiff's exhibit 6.
67 N.T. 70.
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NO. 96-2178 CIVIL TERN
complete the landscaping wi.th proper swale~."
Furthermore, he
concluded t!lat the escrO\I money should not bu rele.a~dd to Obkwood
because the landscaping wa~ still not cOlllpleted ~atisfactorily at
the time of tr ia1."
On November 27, 1996, Carbaugh received a letter from Thomas
E. Shelly, the Sewage Enforcement Officer (SEO) of Southampton
Township, notifying her that her septic syscem was in violation of
the Pennsylvania Sellage Facilicies Ace and posl"libly the Clean
Streams Law of Pennsylvania."
Shelly testified on behalf of
Carbaugh at the trial. As SEO, Shelly is licensed by the State of
Pennsylvania.'1l
Shelly had inspected Carbaugh's sand mound in November of 1996
and discovered leaching on the 101ler side of the sand mound.72
According to Shelly, this leaching lIas due to the runoff of
groundwater into the septic system caused by the lack of swales on
the property.7) According to Shelly, either swales were installed
improperly on Carbaugh's property or nona was constructed in the
" .rd.
" N.T. 73.
10 N.T. 22; Plaintiff's exhibit 5 (notice dated November 27,
1996) .
11 N.T. 199.
72 N.T. 200-01, 210.
13 N.T. 201.
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NO. 96-2178 CIVIL TERM
first place." Shelly determiaed that the construction of proper
r,
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swales would correct the problem \Iith C"rb.'lugh' s stlptic systtllll."
Shelly also noted that it is very unusual for a sand lliound
system to fail within two years."
In his opinion, a failure so
shortly after installation can be best explained by installation
problems."
He did not see any indications that Carbaugh was
causing the leaching."
Oakwood's expert, Jarredd, also agreed that it is' very
important to divert groundwater from tha top of a sand mound." He
explained that when a sand mound is installed it is necessary to
excavate and grade the property properly to take groundwater away
from th,g sand mound.'o According to Je.rredd, if there is not enough
topsoil on a particular sand mound groundwater can get. into the
sand mound and cause leaching." Jarredd testified that improper
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" Shully testified that he could find no indications that
swales had ever been constructed on the property, but he could not
say for certain that there had never been any. N.T. 208, 210.
" N.T. 203.
" N.T. 204.
" id.
78 Id.
" N.T. 191.
.. Id.
Ol N.T. 183, 191.
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NO. 96-2178 CIVIL TERM
seeding of a property would lead co inaddquutl3 top..oil cover."
Additionally, he testified that, it a s<lpdc systdil' began leaching
within two years of installation, a lik"ly CaUgd Ilould b.. the
improper grading of the property and tho def iciency of sIJales."
Moreover, according to Jarredd, if sllalea wort! not constructed
properly on Carbaugh' 8 property, Ilater llOuld coma across the Band
mound."
\
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Jarredd did not inspect the property Ior properly constructed
swales when he wa'S attempting to fix Carbaugh'e septic system
during the warranty period."
vlhen aeked at trial whether he
thought that Carbaugh had caueed the destruction of the swales on
her property by tying her dog in the yard, he indicated that a dog
on a chain could prevent a ewale frOlll working properly if the swale
were not cut deep enough when it was installed." Jarredd also
noted that he had never seen a dog destroy an entire sllale..7
At trial, Jarredd estimated that a small contractor would
charge $700.00 to $900.00 to make the repairs of the sand mound
system suggested by Chamberlain, while a large company would charge
.
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NO. 96-2178 CIVIL TERM
slightly more." Jarredd estimated that to replace the \~hole system
would cost $3,000.00 to $5,000.00."
By Order of Court dated June 12, 1997, the cou~t rendered the
following verdict:
AND NOW, this 12th day of June, 1997, upon
consideration of Plaintiff's complaint. and of Defendant' s
counterclaim, and following a nonjury trial, the court
finds in favor of Plaintiff Angie L. Carbaugh and against
Defendant Oakwood Home[s], Inc., in the alllount. of
$2,500.00 for amelioration of s,,)pt.ic Syutlillo\ problems on
Plaintiff's property, with interest sec. leg. from June
1, 1994.
No motions for post-trial relief II",re filed, nor was judgment
entered on the verdict upon praecipe of either party.
Instead,
Oakwood filed an appeal from the June 12, 1997, order to the
Superior Court.
Following the filing of Oakwood's appeal, Oakwood was directed
by this court on June 16, 1997 to file a Statement of Matters
Complained of on Appeal within fourteen days. Oakwood has failed
to file such a statement.
DISCUSSION
Interlocutory Nature of Order
Appealed from: Waiver of Issues
Although the issue of Ilhether a verdict which ha. not b.~n
reduced to judgment is appealable, and the issue of whether matter.
'"
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N.T. 188-89.
..
N.T. 192.
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NO. 96-2178 CIVIL TERM
raised on appeal are to be considered to have buen preserved where
a motion for post-trial relief WaS not filtld, are beyond this
court's assignment under Pennsylvania Rule of Appe11~te Procedure
1925, it may be noted briefly that both qUl3scions have been
answered in the negative.
Szakmeister v. Szakmeister, 344 Pa.
Super. 465, 496 A.2d 1199 (1985) (appe~l quashed where verdict not
reduced to judgment and no motion for post-trial relief filed, with
observation that appellate issues had not been prtlservad).
Proorie~ of Vordict on the Heritu
In the absence of a motion for post-trial relief or a
statement of matters complained of on app09al, the court will assume
that Oakwood is challenging the sufficiency of the evidence to
sustain the verdict.
"In considering the sufficiency of the
evidence to sustain the verdict, \/13 view the evidence in the light
most favorable to the verdict winner, granting that party the
benefit of all reasonable inferences, and determine whether the
evidence introduced at trial was sufficient to sustain the
verdict." Weir v. Weir, 4211 Pa. SupaI'. 515, 530, 631 A.2d 650, 657
(1993), quoting Snyder v. Snyder, 427 Pa. Super. 494,505, 629 A.2d
977, 982 (1993).
Viewed in this light, the evidence as recited above permitted
determinations that the septic system warranted by Defendant had
begun to malfunction during the warranty period, that Plaintiff had
notified Defendant during the warranty period, that lanaaoaping
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYl,VANIA
CIVIL ACTION
1...-'
ANGIE L. CARBAUGH
PLAINTIff',
NO. 96-2178
,
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v.
OAKWOOD HOMES. INC.
DEFENDANT
PRETRIAL MEMORANDUM OF DEFENDANT. OAKWOOD HOMES. INC.
,\
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FACTS AS TO LIABILITY:
'I,
Defendant. Oakwood Homes. Inc.. emered into a construction contract with Plaintiff,
"
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Angie L. Carbaugh. on or about July 14. 1993, for the construction of a single family dwelling
to be located in Shippensburg. Cumberland County, Pennsylvania. The terms of the contract
required Plaintiff 10 escrow money until the completion of the home. Defendant and Plaintiff
also agreed to a one (I) year Builder's Warranty on the home, which Defendant has honored.
Defendam thereafter did construct a home for Plaintiff per the specifications and plans lelected
by Plaintiff. The construction of the home by Defendant and for the Plaintiff wu in accordaDce
with the terms of the comract between Plaintiff and Defendant. Further, the constructWa of'"
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However. Plaimiff has refused to release the money escrowed in accordance with, die ~ fit':.," " ;i,/\~'il /1
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the contract. Following completion of the home for Plaintiff, Plaintiff began to mab lIDiIlIN(fUI, ," '. ' ',dif\i'f'
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complaints to Defendam about the construction of the home. Defendant rectified aU proNcl..' ,',,'!,:~,;t}I\:~;i\1
, ;"'jdj",Jr
reponed by Plaimiff in accordance with the terms of the one (I) year warrallly. ~. :, :,:,",'::':';!i
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Defendant asserts that the sewage system was placed and inspected by the Sewaae &If~"" , "'::\'/."
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home by Defendant for Plaintiff was performed in a workman-like and approprlaJe _....... . .
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Office and at the expiration of the one (1) year warranty, the sewage system was properly
functioning.
Defendant asserts that since all work necessary for the release of the escrowed funds was
perfonned, Defendant is entith:d to the release of the escrow money. Plaintiff's refusal to
release the escrow funds is willful. wanton and malicious.
FACTS AS TO DAMAGES:
Defendant disputes the damages claimed in Plaintiff's Pre-Trial Memorandum. Further,
Defendant has made a counterclaim for damages in the amount of $2,500.00. the amount of the
escrowed funds.
PRINCIPAL ISSUES:
The principal issues to be litigated are whether Defendant perfonned in accordance with
the tenns of the construction contract, and thus, is entitled to the release of the escrowed funds.
Additionally. Defendant disputes that Plaintiff is entitled to recover under Pennsylviania Unfair
Trade Practices and Consumer Protection Law. thus entitling Plaintiff to recover treble damages
and punitive damages.
SUMMARY OF LEGAL ISSUES:
No unusual legal issues are anticipated or expected as of this dale.
WITNESSES:
1. Douglas Zook
2. Plaintiff, Angie L. Carbaugh
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3. Ronald A. Kraszewski
4. Jeffrey DaMer
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LIST OF EXHIBITS:
Defendant intends to introduce the construction contract, the Builder's Warranty. the
Sewage Permit. the Sewage Pennit Approval. the Sewage Inspection Report. the list of repair
items submitted by Plaintiff. various photographs of the Plaintiff's residence. and miscellaneous
correspondence from Plaintiff.
STATUS OF SETTLEMENT NEGOTIATIONS:
Defendant has made a settlement offer lO reduce the escrowed funds released to defendant
to $1. 2S0.00. Plaintiff has rejected this settlement offer.
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Respectfully submitted.
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BURKE & HESS
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Michael D. Hess, Esquire
Attorney for Defendant
1222 Drager Rd.
Columbia PA 17512
(7 I 7) 285-9729
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Page 2
For the Defendant (Cont'd. )
13 - Builder's warranty
14 - Photograph
15 - Photograph
* * *
Exhibit. from Day 1 of a nonjury trial held April 23, 1997,
before JUdge Oler in Courtroom No. 2.
Ron Turo, Eaquire, represented the Plaintiff.
Michael D. Hess, Esquire, represented the Defendant.
Sue Rice wa. the court reporter.
All exhibit. were admitted.
Exhibita with reporter until next trial date.
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4 I - 44
46 i", I
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281-iHi
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-_.~- -=-=.==" ..__..~-~_._.~._~-.-...._-==,,=-=-,:;:;.;...::-.,....:=-~....
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lIpril 28, 1997, Order' 01 COllrt, Ii 1<,1.
^ND N<1/J, t.his }Htt\ d,lyuf ^pril, Jl)q"/, d j'flntilllhllinn of It\l.' IltHli\ll'Y tr"i...
in t.his fTIdt. tcr is SCHED(IL1.:n for Wl.~tneHddYI .Iune J 1, l'pr" tit q:t)O d.rII., \1\
C(Jllrtn.x~n No. r), Clulllx!l"ldnd Counl:y Courthousp, Citrlisl(-', Pt~IHHlylvdnid.
By I.he COllrt, ,J. Wesley Olcr, ,Ir.. ,I.
.June 12, 1997, Order "I COlln, filed,
^ND N<kJ, Ulifl lith d..y of ,Illne, 19')7, ufxm consider..t ion of PI,Jinl. iff'!;
cnnpldint ilnd of r~~fC'r\drHlt I::; count.ercldi.lll, dnd tn.iJowinq d non.lury trldl, th
court finds in f,lvor 01 PI.tlntiff ^ngie I.. Cilrbiluqh and dgainst Defend.lIlt
O"k.......xxl H<xne, [ne.. in UI'~ ,Ulklunt of ~),r,oo,oo for anelioration of septic
system problc!ns Oil PI..int iff's property, with interest sec. leg. frol11
.Iune I, L'J<l4.
lIy the emu't, ,I. Wes ley Oler', ,Jr', , J.
.JWlC 11, 1997, Order of coun, f ilL'(j, In Rc: Matter Taken Under Mvisement
/\NlJ NCkJ, this llUI dilY of ,Iune, 1997, upon consideration of the Plaintiff
c,,"plaint: in the atxIVe-l'dpt inned l11aner and of the Defendant's counterclaim
ilnd following test imony received over I.he course of tll.G days in a nonjury
trial, the record is del'lan'(l closed, and the matter is taken under odvisel11c
By the Court, .I. Wesl.ey Oler, .Jr.. .J.
July 14, 1997, Notice of ^pfleal and Order for Transcript, filed.
Not Ice is hereby given that Oak\'Kl<Xl Ho:nes, Inc" defendant above-named,
hereby appeals to the Superior Court of Pennsylvania frem the order entered
in this matter on the 12th clay of .Iune 1<)97. This order has been entered in
the docket dS evidenn,.! by the r)ttilched copy of the docket entry.
^ Notice of ^ppeal having been filed In this matter, the official court
refx)rtcr is heroby order",1 to prcxluce, certify and file the transcript in
this matter in confonllily with Rule I<)V of the Pennsylvania Rules of
^ppellate Procedure.
By: Michael D. Hess, Esg.. ^ttorney for Defendant
JILly 16, 1997, Order of Court, filed.
^ND Na;, this l6th day of ,July, 1997, ufXJn consideration of the Notice of
^pfleal, filed in th'~ illxlVe-capt loned maUer, ^ppelLant is DIRECTED, pursuant
to Pa. R.^.P. 1.92r,(b), 1'0 file of record in the Court and to serve upon the
undersigned iLrlge a ['(mc ise ~;tiltCl11ent of Matters Canplained of on Appeal no
laler than 14 days after entry of this Orner.
By the Court, J. Wesley Oler, Jr.. J.
Aug. 1, 1997, HUllerior Court of Pennsylvania Notice of Appeal [))cketing to
No. 688 HBG 1<)97, filed.
Aug. 12, 1997, order "f Court, filed.
^NlJ Na;, this Uth ddY of ^uqust, 1997, pursuant to pennsylvania Rule of
^ppe Ilale Procedure I 'l11 (a) and pennsy I vania Rule of Judic:ial Ad'ninistration
r,OOO.f>, the transcript of the trial held in the above matter on April 23,
11)97, an(1 ,Iune lI, I'J<J7, shall be prep.:lced after the stenographer has obtai
.. deplsit of one-halt of the estimdtecl dklrge, the ill10unt of which she shall
forthWIth notify ^ppcll..nt, Oakw<xxl 1.lolles, Inc.
By the Court, J. Wesley Oler, ,Jr., ,l.
Aug. 25. 1997, 'l'rans(Tipt of Proceedings, Noniury Trial. filed.
():,t, 20, 1997, Opinion Pursllant to P^. R.I\.P, 1925, filed.
Misc, ,'lfId ExhibLts
~h^~('tr~~ I.'OR ENTRY r'O[i ,JUDGMENT ON THE VERDICT AND THE VERDICT
Mill ,IIJ[J(;MENT f:NTERED. NOTICE M,\ILEO TO DEFENDANT.
1(,
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IF,
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,_ _. _.~ .._. ... , ... . .__.0'_"
DAVID A. SZEWCZAK. ESQUIRE
'fIQlHOOOTAffi
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mlfe A~uperiur <lIllUrt uf WCllltllU lunnin
ODfficl' lIf till' Wrlltllllltl1tllru
FULTON BUILDING
9TH FLOOR
200 NORTH THIRD STREET
HARRISBURG. PENNSYLVANIA 11101
1711) n2.1294
PATRICIA A WHITTAKER
CI<II"(LIAM
[kcembcr 5. (997
Michael D lIess. FSljllire
2148 1~lIIbassy Drive
LaBeuster, I' A 176m
RE:Cul'ballgh v Oakwood 1I01lles. Inc.
No. 688 llarrisbllrg. 191)7 (C.P.Crt. Cumbo Co. 96-1178 Civil)
Dc(\!' MI'. lIess:
This is to advise that the attached order has been entered on the docket for the
abovc-captioned matter.
Pursuant to the IIJregoing order, a cCl1ilied copy of same along with the original
record will be lorwarded tothc lower court in due course.
TIlE PROTIIONOTARY'S OFFICE
-~ t2.a/1i&k,_~
ChicfClerk
PAW:w
C:llon. J. Wesley Oler
Ronald A. Turn. EsljUirej
Pl'llthonotury.Cumb. Co.
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Cnrnmnnw~alth nf I'~nnsylvan,"
Cnunty nl Cumb~rland
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I. _!-!Jwrence E. Welker . I'rnthunnlary
nl Ih~ Court 01 Common Pkas in and fur said
Cuunty. do h~r~hy ~~rtify Ihat Ih~ Inr~guing is a
full. tru~ and ~urrc~1 cnpy of th~ whule r~cord nf th~
CDSe: thc:n:in MUled. wherein
,
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_ Anqie L. Carbauqh
Plainlilf. and __
Oakwood Hanes, Inc.
In TESTIMONY WIlEREOI., I ha'~
Ihi, __ Twenty-fourth
()~f~ndanl _, as Ihe ,a me remain. uf record
belnre the said Court at No, 96-2178 of
Civil Term. A,n. 19_.
h~rcllnln sct m, hand and affixed Ihe seal of said Cnurt
day nl October A. n. 19..2:L..
X~ t /V~/.LA.u-
!lrnlhllnlllaf\l
Case No. 688 HBG 1997
I. ' Harold E. 5hee ly l'r~S1denl Judge of the Ninth
Judicial Di,trict. composed nl the Counly nl Cumherland, do certify thai Lawrence E. WeJ.ker.
,El'QttJQnotarv . by whom Ihe annexed record. certificate and
altestation were made and tti\icn. and who. in hb 0"" proper handwriting. thereunto ~ubscribed his name
and affix~d Ihe seal of th~ Courtnf Cnmmnn Pleas nf said County. was.allhetimeof,odoing.and now is
I'rulhonolary in and for said Cnunly nf __~rland in
Ihe ('ommonwealth of I'ennsyl,ania. duly commissiuned and qualified loall ofwho,e acts as ,ueh full faith
and credit arc and ought tn t"ll~ given as ,,"'ell in Courts of judic;a ure: as cl:'lewhc:rc. and that c said record.
certificate and allestation are in duc form of law and mad y the pro er Q((icer.
/
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Prc~idl:ntludw,l:
Cummonwealth of P~nnsyl,ania
Cuunty of Cumberland
}s<
I. ___ Lawrence E. Wel~ . I'rulhonolary of the Courl of Common Pleas in
and for Ihe said County. do certify Ihatthe Ilonorable Harold E. Sheely
hy whom the foregoing allestation was made. and who has thereunto subscribed his name. was. at the lime
uf making thereof. and slill is Pr~sidenl Judg~ of the Cuurt of Common Plea,. Orphan' Courland COUrI of
Quarter Se"iuns of th~ Peace In and for said Cuunty. duly Cnmmissioned and qualified; 10 all whose aclS
as such full. faith and credit "re "nd ought In he given. as well in Courts of judicalure as el,ewhere.
IN I ESTlMONY WIII:RUlI'. I h...e hereunlo
,.1 my h'IOd and affixed the se,,1 of s"id Court this
_2A.th_ day of _~_ A,f). 19-22-..
~ e. )v.i~_<<./-'.wr
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28
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^nlon~ lhe Record, and l'rl1ceedin~' ell",lled in the eourl of CUnlmun Pic., in and for ,he
, Cumberland ' h . I h r I' 1 '
counly 01 ______..___.._._..____.__.___ an t c (ummonwcu t 0 enn'iY vania
No. 688 HBG 1997
III No __._-.9~::.?JLlt~!'yil Te!1!L.._ Term. 19 __ is conlained the rollowin~:
COpy ()~ __"__h. ..n._ ._lIJ.>p"earance
l>OCKF.T ENTR Y
ANGIE L. CARBAUGH
VS.
OAKWOOD HOMES. INC.
April 24, 1996. Canplaint, fHed.
May 8, 1996, Sheriff's Return of Service, filed.
June 6, 1996, Answer of Defendant to the Canplaint of Plaint.iff, filed.
June 7, 1996, Answer of the Plaint iff to Defendant's New Mat tel' and
Countercl.aim, f Hed,
June 21. 1996, Praecipe for Listing Case for Trilll, filed.
Aug. 30, 1996, Pretri~l Copference, filed.
By the Court, J. Wesley Oler, Jr., .J.
Aug. 30, 1996, Order of Court, fHw.
AND 1\Oi, this 28th day of Augu8t, 1996, pursuant to an agreement
of counsel., the nonjury tr:~al in this cilee is scheduJ,ed fOl' rriday,
Decemher 13,1996, at 1:30 p.m., and the trial shaU consune one-half day.
By the Court, J. Wesley Oler, Jr., J.
32 Dec. 16, 1996, Order of Court, filed.
Dec. 16, 1996. Order of Court, filed.
AND ~'Jt/, this 16th day of December, 1996, the nonjw;y trial previously
scheduled in this matter for December 13, 1996, is REf>CHEOOLED to Monday,
March 3, 1997, at 1:30 p.m., in Courtroan No.5, c.'umberland Count.y Courthol18
Carlisle. Pennsylvania.
By the Court, J. Wesley Oler, Jr" J.
33 March 4, 1997, Order of Court, filed.
AND l'CkI, this 3rd day cf March, 1997, upon agreement of counsel, the non-
jury trual previously scheduled in this I11l1I.ter for March 3, 1997 , ie
RESCHE~lLED to Wednesday, April 23, 1997, at 1:30 p.m., in Courtroom No.5,
CLIllberlancl County Courthouse, Carlisle, Pennsylvania.
By the Court. J. Wesley Oler, Jr., J.
14 April 28, 1997, Order of Court, filed. In Re: Trial to Con~inue
AND l'CkI, this 23rd day of April, ] 997, upon consideration of the Plain-
tiff's canplaint 1n the above-captioned matl.er and the Defendant's CCl\lllter-
claim, and fOllowing an inlt.ial day of hedring, and the CIlIIe not hllving been
canpleted. the record s3hll rffMin open, and counsel are requested to r.ontac
the Court's secretary for purr<lSe5 of srheduling a final ho!llf day of trial.
At the time of adjournment of the trill 1 on this date, Plaintiff had ~.
her case-in-chief, the Defendant was presenting ll~ case-in-chief, the
Defendant's counsel was conducting a direct eXmlination of Defendant 's ~-
ident. As of the time of adjourfllTlent, Plaintiff's Exhibits 1, 2, 3, 4, 5,
6, 7, 8 and 9 had heen identified and admitted, ant DefendMt '. Illlhibit., 1.
2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14 and 15 IwJ been identified and 1Il!-
mitted. Defendant's Exhibit 7 was identified and witlxlrllWll, and t..timcny
related to Defendant's Exhibit 7 is hereby stricken.
By the Court, J. Wesley Oler, Jr., J.
( over)
P~K>.
35
18 - 4l
43 - 44
46 - 257
'58 - 272
'71 - 280
36
April 28, 1997, Order of Court, filed.
AND NOW, this 26th day of April, 1997, a continuation of the noniury tria
in this matter. i!l SOIEllULED for Wednesday, June 11, 1997, at 9:00 a.m.. in
Courtroan No,S, Clmoorland County Courthouse, Carlisle, Pennsylvania.
By tt:e Court, J. Wesley aleI', .Ir., .1.
,June 12, 1997, Order of Court, filed.
AND NOW, this 12th day of ,June, 1997, upon consideration of Plaintiff's
canplaint and of Defendant's counterclaim, and following a nonjury tnal, t
court finds in favor of Plaintiff I\ngle L. Carbaugh and against Defendant
Oak....ood Heme, Inc., in the iImunt of $2,500.00 for Cl"nelioration of septic
system problems on PlaintIff's property, with interest sec. leg. fmn
,Iune 1, 1994.
By the Court, ,J. Wesley Oler, Jr., .J.
June 13, 1997, Order of Court, filed. In Re: Matter Taken Under Advisement
AND NOW, this 11th day of June, 1997. upon consideration of the Plaintiff
canplaint in the above-captioned matter and of the Defendant's counterclaim
and following testimony received over the course of t\\O days in a nonjury
trial, the reco.d is declared closed, and the matter is taken under advisen~
By the Court, J. Wesley Oler, Jr., J.
July 14, 1997. Notice of Appeal and Order for Transcript, filed.
Notice is hereby given that Oakwood Homes, Inc., defendant above-named,
hereby appeals to the Superior Court of Pennsylvania from the order ent~led
in this matter on the 12th day of June 1997. This order has been entered in
the docket as evidenced by the attached copy of thp. docket entr{.
A Notice of Appeal t~ving been filed in this matter, the official court
reporter is hereby ordered to produce, certify and file the transcript in
this IMtter in conformity with Rule 1922 of the Pennsylvania Rules of
Appellate P~ocedure.
By: Mi.chuel D. Hess, Esq., Attorney for Defendant
July 16, 1997. Order of Court, filed.
AND NOW, thIs 16th day of July, 1997, upon consideration of the Notice of
Appeal filed in the above-captioned matter, Appellant is DlRECI'ED, pursuant
to Pa. R.A.p. 1925(b), to file of record in the Court and to serve upon the
undersigned judge a concise Statenent of Matters Complained of on Appeal no
later than 14 days after entry of this Order.
By the Court, J. Wesley Oler, Jr., J.
Aug. 1, 1997, Superior Court of Pennsylvania Notice of Appeal Docketing to
No. 688 HBG 1997, filed.
Aug. U, 1997. Order of Court, filed.
AND f'O'I, this 11th day of August, 1997, pursuant to Pennflylvania Rule of
Appellate Procedure 19l1(a) and Pennsylvania Rule of Judicial Administration
5000.6, the transcript of the trial held in tl~ above matter on April 23,
1997, aoo June 11, 1997, shall be prepared after the stenographer has obtain
a dep:>sit of one-half of the estimated charge, the GIOOunt of which she 3hall
forthwith notify Appellant, Oakwood Hanes, Inc.
By the Court, J. Wesley Oler. Jr., J.
Aug. 25, 1997, Transcript of Proceedings, Nonjury Trial, filed.
Oct. 20. 1997, Opinion Pursuant to pA. R.A.p. 1925. filed.
Misc. and Exhibits
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n"j
ANGIE L. CARBAUGH,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
OAKWOOD HOM~S, INC.,
Defendant
96-2178 CIVIL TERM
LIST OF EXHIBITS
~or the Plaintiff
1 - Photo albWll
2 - Handwritten sheet of complaint~ dated 2/94
3 - Current handwritten sheet of complaints
4 - Letter dated 6/17/96, Jeffrey A. Danner, Sewage Enforcement
Officer, to Angie Carbaugh
5 - "Notice" dated 11/27/96
6 - Inspection report of Inspection No. 16
7 - Inspection report of Inspection No. 15
8 - Construction contract dated 7/14/93
9 - Legal fees
For the Defendant
1 - Handwritten .heet entitled "Thing. Need Pixed"
2 - Photograph
3 - Photograph
4 - Photograph
5 - Photograph
6 - Photograph
7 - (Exhibit 7 withdrawn)
8 - Photograph
9 - Photograph
10 - Contract change order dated 1/7/94
11 - Handwritten noted dated 6/13/94
12 - Inspoction report of Inspection No. 13
(Cont'd. to Page 2)