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HomeMy WebLinkAbout02-4921IN THE COURT OF COMMON PLEAS, CUMBERLAND cOUNTY, PENNSYLVANIA CIVIL DIVISION Plaintiff & Address: John & Jennifer Hammelbacher 1005 Doubling Gap Road Newville, PA 17241 Defendants & Address: Vincent Mellott 163 North Hanover Street Carlisle, PA 17013 :FileNo.: O al- - : Civil Action - Law : B-H Agency GMAC Realty 163 North Hanover Street Carlisle, PA 17013 pRAECIPE WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons in the above-captioned civil action. Date: October 9, 2002 -John 3r'-~bom, Esquire ....A~mey for Plaintiff 8 South Hanover Street/Suite 204 Carlisle, PA 17013 717-249-0900 Attorney ID#: 77961 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Plaintiff & Address: John & Jennifer Hammelbacher 1005 Doubling Gap Road Newville, PA 17241 Defendants & Address: Vincent Mellott 163 North Hanover Street Carlisle, PA 17013 B-H Agency GMAC Realty 163 North Hanover Street Carlisle, PA 17013 : File No.: C2>~-- A/qo~ I : Civil Action - Law WRIT OF SUMMONS Date You are notified that John & Jennifer Hammelbacher have commenced an action against you. Prothonotary Deputy Prothonotary ABOM & KUTULAKIS, LLP Date: October 9, 2002 John A. Abom, Esquire Attomey for Plaintiff 8 South Hanover Street/Suite 204 Carlisle, PA 17013 717-249-0900 Attorney ID#: 77961 JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA : CIVIL DOCKET NO.: 02-4921 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 16th day of June 2003, I, Erica Blackledge, law clerk, of Abom& Kutulakis, L.L.P., hereby certify that I did serve two tree and correct copies of the foregoing COMPLAINT upon Defendant Vincent Mellott and Defendant B-H Agency by hand delivery at the following location: Saidis, Shuff, Flower & Lindsay C/o Kirk S. Sohonage, Esquire 26 W. High St. Carlisle, PA 17013 ABOM & KUTULAKIS, L.L.P. Attorney for Plaintiff Erica Blackledge 36 South Hanover Street Carlisle, PA 17013 JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA CIVIL DOCKET NO.: 02-4921 JURY TRIAL DEMANDED TO DEFENDANT B-H AGENCY REALTORS NOTICE TO DEFEND AND CLAIM RIGHT~ You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FOR BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 1-800-990-9180 or (717) 249-3166 LANCASTER COUNTY BAR ASSOCIATION 28 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-0737 JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : pENNSYLVANIA : CIVIL DOCKET NO.: 02-4921 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE. AND NOW, this 19th day of June 2002, I, Erica Blackledge, law clerk, of Aborn & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing NOTICE TO DEFEND AND CLAIM RIGHTS upon both Defendant Vincent D. Mellott and Defendant B-H Agency by hand delivery at the following location: Kirk S. Sohonage, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 ABOM & KUTULAKIS, L.L.P. Attorney for Defendant Erica Blackledge JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY pENNSYLVANIA CIVIL DOCKET NO.: 02-4921 JURY TRIAL DEMANDED TO DEFENDANT VINCENT D. MELLOTT NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are wamed that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FOR BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 1-800-990-9180 or (717) 249-3166 LANCASTER COUNTY BAR ASSOCIATION 28 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-0737 JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. V1NCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. : 1N THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : CIVIL DOCKET NO.: 02-4921 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 19th day of June 2002, I, Erica Blackledge, law clerk, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a tree and correct copy of the foregoing NOTICE TO DEFEND AND CLAIM RIGHTS upon both Defendant Vincent D. Mellott and Defendant B-H Agency by hand delivery at the following location: Kirk S. Sohonage, Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 ABOM & KUTULAKIS, L.L.P. Attomey for Defendant Erica Blackledge ~) SAIDIS SHUFF. FLOWER & LINDSAY 26 W. High Streel Carlisle, PA John Hammelbacher and Jennifer Hammelbacher, Plaintiffs Vincent D. Mellott and B-H Agency Realtors, Defendants In the Court of Common Pleas Cumberland County, Pennsylvania Civil Docket No.: 02-4921 & 03-2806 Jury Trial Demanded PRELIMINARY OBJECTIONS OF DEFENDANTS~ VINCENT D. MELLOTT AND B-H AGENCY REALTORS Plaintiffs' filed a Complaint in the above-noted matter, a copy of which is attached hereto, without admitting the averments herein and made a part hereof as Exhibit "A". Plaintiffs' allege, in Paragraphs 33 through 40, a claim against Vincent D. Mellott and "In ' ' ' B-H Agency Realtors based upon tentmnal Misrepresentation (Fraud)." Plaintiffs' allege, in Paragraphs 65 through 75, a claim against Vincent D. Mellott and B-H Agency Realtors based upon a "Violation of the Uniform Trade Practices and Consumer Protection Law" for fraudulent misrepresentation. Plaintiffs have failed to aver with particularity the claims of fraud as required by Pennsylvania Rules of Civil Procedure 1019(b). WHEREFORE, Defendants' request this Honorable Court to dismiss Plaintiffs' claims against Vincent D. Mellott and B-H Agency Realtors. Date: By: Respectfully submitted, SAIDIS~ SHUFF~ FLOWER & LINDSAY 26 West High Street Carlisle, PA 17013 Phone: 717.243.6222 Attorney for Plaintiffs JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. ViNCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA CIVIL DOCKET NO.: 02-4921 JURY TRIAL DEMANDED COMPLAINT AND NOW, this Sixteenth day of June 2003, comes the plaintiffs, John Hammelbacher and Jennifer Hamrnelbacher by and through John A. Aborn, Esquire of ABOM & KUTULAKIS, L.L.P., and file this Complaint against the defendants, Vincent D. Mellott and B-H Agency Realtors as follows: 1. Plaintiffs, John and Jennifer Hammelbacher, live at 1005 Doubling Gap Road, Newville, Cumberland County, Pennsylvania. 2. Defendant Vincent D. MelloWs ("Mellott") employer is B-H Agency Realtors, ("B-H Realtors"), a business operating in the Commonwealth of Pennsylvania with offices at 163 North Hanover Street, Carlisle, Cumberland County, Pennsylvania and 51 Big Spring Avenue, Newville, Cumberland County, Pennsylvania. 3. Defendant Vincent D. Mellott is employed as a real estate broker with B-H Realtors and resides at 6 Meadow Lane, Newville, Cumberland County, Pennsylvania. 4. Defendunt B-H Realtors are responsible for the actions of Defendant Mellott tlzrough the doctrine of Respondeat Superior. 5. In March of 2000 Plaintiffs became interested in purchasing the property located at 1005 Doubling Gap Road, Newville, Cumberland County, Pennsylvania ("subject property"). 6. The selling agency for the subject property was B-H Realtors. 7. The selling agent for the subject property was Vincent D. Mellott. 8. In late March of 2000, Plaintiffs asked Mellott and he accepted to act as a buyers' agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property. 9. Plaintiffs and Mellott reduced to writing their buyers' agency agreement, the original of which remains under the control of Mellott. I 0. After retaining Mellott's services as a buyers' agent, Plaintiffs expressed their concerns to Mellott regarding observations made at the subject property. 1 I. Plaintiffs inquired into the feasibilily ora second floor considering the observations in the subject property, particularly in the basement/foundation walls. 12. Mellott hired Gregory Lebo of Brehm-Lebo Engineering ("Lebo") to inspect the structural condition of the subject property. 13. On or about March 25, 2002, Lebo met with Mellott to observe the structural condition of the subject property. See, Engineer's Report attached as Exhibit B. 14. When Lebo met with Mellott on or about March 25, 2002, to observe the structural condition of the subject property, Lebo made comments to Mellott about the structural problems and corrective measures that should be taken in the subject property. 15. The engineer's report (Exhibit B) was completed on March 28, 2000. 16. A copy of the engineer's report was sent to Mellott via facsimile on or about March 28, 2000. 17. The engineer's report found the following: a. Noticeable movement and horizontaI cracks halfway up the rear wall (north side) and the right wall (east side). b. One inch of inward movement in the north wail. c. One half inch of inward movement in the east wall. d. Inadequate final grading caused the inward movement by allowing water to cumulate along the house, leading to a build up of extensive hydrostatic pressure between the basement/foundation walls. 18. The engineer's report recommended the following corrective measures to secure the walls for the rest of the life of the structure: a. A swale should be graded around the north and east sides of the subject property to divert water away from the subject property. b. The top four (4) feet of soil along the north and east walls should be excavated and backfilled with 2B stones. c. The north and east walls should be pushed back into a vertical position during the excavation process. d. Three (3) plasters should be built along the north wall and one (1) along the east wall. e. Installation of weep holes in the north and east walls and a footing drain tied into a sump pit. 19. The engineer's report did not opine that the foundation was suitable to accept a second floor. 20. Mellott failed to provide to Plaintiffs a copy of the engineer's report prior to their signing of the buyer's agreement. 3 2 I. MelIott failed to accurately explain the contents of the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. 22. Mellott did not memorize in writing to the Plaintiffs the contents of the engineering report. 23. Plaintiffs agreed to purchase the subject properly at a price that was within $2,500 of the seller's original asking price. 24. Mellotl verbally misrepresented the contents of the engineer's report to the Plaintiffs. 25. Mellott verbally represented to Plaintiffs that the structure of subject property would not worsen. 26. Mellott possessed knowledge that the Engineer's Report contained information of a defect at the subject property. 27. The knowledge Mellott possessed about a material defect at the subject property would have prevented the Plaintiffs from pumhasing the subject property at the original purchase price. 28. In reliance upon Mellott's verbal misrepresentations, Plaintiffs did not request a reduced purchase price to reflect the true extent of the defects. 29. In reliance upon MelIott's verbal misrepresentations, Plaintiffs purchased the subject properly under an assumption they could make a second story addition to the home. 30. In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption that the structure of the subject property would not worsen. 4 3 I. In reliance upon Mellott's verbal misrepresentations, Plaintiffs proceeded to settlement and purchased the subject property on August 3 t, 2000. 32. Since August 3i, 2000 the defects included in the Engineer's Report have continually worsened. COUNT 1 INTENTIONAL MISREPRESENTATION {FRAUD} 33. Paragraphs one (1) through thirty-two (32) are incorporated herein as if fulIy set forth. 34. The elements of intentional misrepresentation are: a representation must be made which is material to the transaction at hand, the representation must be made falsely with knowledge of its falsity or recklessness as to whether it is tree or false, the representation must be made with intent of misleading another into relying on it, the plaintiff must justifiably rely on the misrepresentation, and the resulting injury must be proximately caused by reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999). 35. Mellott made representations to Plaintiffs regarding the structural soundness of the said property. 36. Mellott's representations were material to the transaction of Plaintiffs purchasing the subject property. 37. MelloWs representations were made falsely with either knowledge of its falsity or recklessness as to whether it is tree or false. 38. Mellort made said representations with the intent of misleading the Plaintiffs into relying on his representations. 39. Plaintiffs justifiably relied on Mellott's misrepresentation. 5 40. The Plaintiffs' injury was proximately caused by their reliance on Mellott's representations. WHEREFORE, based upon the Defendants' intentional misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive dmnages, restitution, attorney fees, interests and cost of prosecution in excess of $25,000. COUNT 2 NEGLIGENT MISREPRESENTATION 41. Paragraphs one (1) through forty (40) are incorporated herein as if fully set forth. 42. The elements of negligent misrepresentation are: a misrepresentation ora material fact, made under circumstances in which the misrepresenter ought to know its falsity, with an intent to induce another to act on it, and which results in injury to a parry acting in justifiable reliance on the misrepresentation. Heritaee Surveyors & En~'r. Inc., 801 A.2d 1248, 1252 (Pa. Super. Ct. 2002).. 43. Defendant Mellott made representations to PIaintiffs regarding the structural soundness of the subject property. 44. Mellott's representations were material to the transaction of Plaintiffs purchasing the subject property. 45. Mellott's representation was made under circumstances in which he ought to have known its falsity. 46. Mellott made the misrepresentations with an intent to induce Plaintiffs to act and/or rely on his representations. 6 47. Mellott's misrepresentations to Plaintiffs resulted in Plaintiffs' injury. 48. Plaintiffs justifiably relied on MelloWs misrepresentation. WHEREFORE, based upon the Defendants' negligent misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, interest, restitution, attorney fees, and costs of prosecution in excess of $25,000. COUNT 3 INTENTIONAL NONDISCLOSURE 49. Paragraphs one (1) through forty-eight (48) are incorporated herein as if fully set forth. 50. The elements ofintentionai nondisclosure are: the defendant must conceal a material fact, the representations must be made falsely with either knowledge of its falsity or recklessness as to whether it is tree or false, the representations must be made with the intent of misleading one to rely on it, plaintiff must justifiably rely on the misrepresentations, plaintiff's injury must be proximately caused by reliance on the defendant's representations. Bortz v. Noon, 729 A.2d at 561. 51. Mellott concealed a material fact from the Plaintiffs regarding the structure of the subject property. 52. Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false. 53. Mellott's representations were made w/th the intent of misleading Plaintiffs to rely on his representations. 54. Plaintiffs justifiably relied on MelloWs misrepresentations. 7 55. Plaintiffs' injury was proximately caused by their reliance on Mellott's representations. WHEREFORE, based upon the efendants mtentmnal nondisclosure, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actuaI damages, punitive damages, restitution, attorney fees, interest, and costs of prosecution in excess of $25,000. COUNT 4 BREACH OF FIDUCIARY DUTY 56. Paragraphs one (1) through fifty-five (55) are incorporated herein as if fully set forth. 57. A fiduciary duty exists when the relationship goes beyond reliance and into a relationship characterized by "overmastering influence" on one side or "weala~ess, dependence, or trust, justifiably reposed" on the other side. EtolL Inc. v. Ellias/Savion Adver., Inc., 811 A.2d 10, 22 (Pa. Super. Ct. 2002). 58. An agency relationship is "a fiduciary one, and the agent is subject to a duty of loyalty to act only for the principal's benefit." Id.._:. at 21. 59. Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf. 60. Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property. 61. Mellott and the Plaintiffs accepted and parties reduced their buyers' agency agreement to writing. The original of said agency agreement remains under the control of Mellott. 62. Plaintiffs were dependant on and trusted Mellott to disclose infonnation regarding the subject property and to act in their best interests. 63. Mellott possessed an "overmastering influence" over Plaintiffs because within the agency relationship, he was the only party with access to the engineer's report. 64. Mellot breached his fiduciary duty by failing to disclose the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. WHEREFORE, based upon the Defendants' breach of fiduciary duty, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest and costs of prosecution in excess of $25,000. COUNT 5 VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW~ TITLE 73 P.S. §§ 201-2(4)(v) 201-2(4)(vii)~ 201-2(4)(xwii) 65. Paragraphs one (i) through sixty-four (64) are incorporated herein as if fully set forth. 66. P.S. § 201-2(4)(v) sets forth that representing that goods or services have certain approval, characteristics or uses or benefits that they do not have is an unfair or deceptive act or practice. 67. Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor. 68. While Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor, the engineering report sets out the subject could not withstand a second floor. See, Exhibit B. 69. Mellott represented to the Plaintiffs that the defects within the subject property were not likely to worsen. 70. 73 P.S. § 201-2(4)(vii) defines an unfair or deceptive act or practice as when a good or service is incorrectly represented to be of a "particular standard, quality or grade." 71. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as not worsen to over time. 72. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as to be able to withstand a second floor being added. 73. 73 P.S. § 201-2(4)(xvii) explains that engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding qualifies as an unfair or deceptive act or practice. 74. Mellott received the engineer's report, recast and conveyed the information to the Plaintiffs in a manner that created a misunderstanding with regard to the conclusions set forth in the engineer's report. 75. Mellott's conduct resulted in the Plaintiffs believing that the defects in the subject property were not serious enough to warrant a reduction in the purchase price or immediate repair. WHEREFORE, based upon the Defendants' violation of Unfair Trade Practices and Consumer Protection Law, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of $25,000. ABOM & KUTULAKIS, L.L.P. 10 judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of $25,000. ABOM & KUTULAKIS, L.L.P. 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendant 11 VERIFICATION I hereby verify that the statements contained in this complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date JoSm Hammelbacher, Plaintiff cner, Plaintiff SAIDIS SHUFF, FLOWER & LINDSAY W. High Street Carlisle, PA John Hammelbacher and Jennifer Hammelbacher, Plaintiffs Vincent D. Mellott and B-H Agency Realtors, Defendants In the Court of Common Pleas Cumberland County, Pennsylvania Civil Docket No.: 02-4921 & 03-2806 Jury Trial Demanded CERTIFICATE OF SERVICE On this ~¢°dday of -~fl,./, 2003, I, Kirk S. Sohonage, Esquire, hereby certify that I served a tree and correct copy of the foregoing PRELIMINARY OBJECTIONS OF DEFENDANTS', VINCENT D. MELLOTT AND B-H AGENCY REALTORS via United States Mail, first-class, postage prepaid addressed as follows: John A. Abom, Esquire ABOM & KUTULAKIS, LLP 36 South Hanover Street Carlisle, PA 17013 By: SAIDIS, SHUFF, FLOWER & LINT)SAY Kirk ~'$'o(q/or~ge,~ sq uir e SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA John Hammelbacher and Jennifer Hammelbacher, Plaintiffs Vincent D. Mellott and B-H Agency Realtors, Defendants In the Court of Common Pleas Cumberland County, Pennsylvania Civil Docket No.: 02-4921 & 03-2806 Jury Thai Demanded PRAECIPE TO ENTER APPEARANCE To the Prothonotary: PLEASE enter my appearance on behalf of the Defendants, Vincent D. Mellott and B-H Agency Realtors, in the above-captioned matter. Date: '~: g ,~'-~ By: Respectfull submi },ed, Kirl~./S{Shol~e, 'l~squire Attorney ID # 77851 26 West High Street Carlisle, PA 17013 Phone: 717.243.6222 Attorney for Plaintiffs JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : CIVIL DOCKETNO.: 02-4921 & 03-2806 : : : : JURY TPdAL DEMANDED PETITION TO CONSOLIDATE DOCKET NUMBERS AND NOW, this Tenth day of July 2003, comes the plaintiffs, John Hammelbacher and Jennifer Hammelbacher by and through John A. Aborn, Esquire of ABOM & KUTULAKIS, L.L.P., and file this Petition to Consolidate Docket Numbers as follows: 1. On October 9, 2002 Plaintiffs filed a Writ of Summons with the Cumberland County Court of Common Pleas (attached as Exhibit "A") with the Caption as follows: John Hammelbacher and Jennifer Hammelbacher (Plaintiffs) vs. Vincent Mellott and B-H Agency (Defendants). 2. Upon filing the Writ of Summons on October 9, 2002 the File Number 02- 4921 Civil Term was issued. 3. On June 16, 2003 Plaintiffs filed a Complaint with the Cumberland County Court of Common Plea (attached as Exhibit "B') with the Caption as follows: John Hammelbacher and Jennifer Hammelbacher (Plaintiffs) vs. Vincent D. Mellott and B-H Agency Realtors (Defendants). 4. Plaintiffs included the original docket number (0:2-4921) within the caption of the Complaint filed on June 16, 2003. However, at the time of filing, the Prothonotary's office issued an additional docket number (03-2816). 2 5. Plaintiffs' counsel spoke with Defendants' counsel who indicated he is not opposed to a consolidation of the two above-caPtioned docket numbers. 6. Plaintiffs respectfully requests that This Honorable Court remove the second docket number issued for this action (03-2806), and that hereafter the docket number 02- 4921 be used in this matter. WHEREFORE, the Plaintiffs pray that This Honorable Court will consolidate the both docket numbers issued in this action, and that the docket number 02-4921 be used hereafter to identify this claim. Respectfully Submitted, ABOM & KUTULAKIS, L.L.P. 36 South Hanover Street Carlisle, PA 17013 JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBEILLAND COUNTY PENNSYLVANIA CIVIL DOCKET NO.: 02-4921 & 03-2806 JURY TF'dAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 10th day of July 2003, I, Erica R. Blackledge, law clerk, of Abom& Kutulakis, L.L.P., hereby certify that I did serve a tree and correct copy of the foregoing PETITION TO CONSOLIDATE DOCKET NUMBERS upon Kirk S. Sohonage, Esquire, by hand delivery at the following location: Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 ABOM & KUTULAKIS, L.L.P. Erica R. Blackledge 36 South Hanover Street Carlisle, PA 17013 4 ST T L ~ S : , , rm LAKIS HA1LKISItUKO "iT- '01 717) 249-0900 l~.k--[ · ~ 717 232-9511 ax (717) 249-3344 ~ A~OI~EYS AT LAW JOHN HAMMELBACHER and JENNIFER HAMMELBACHER. Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBEI~LAND COUNTY PENNSYLVANIA CIVIL DOCKET NO.: 02-4921 JURY TILIAL DEMANDED COMPLAINT AND NOW, this Sixteenth day of June 2003, comes the plaintiffs, John Harmnelbacher and Jennifer Hammelbacher by and through lohn A. Aborn, Esquire of ABOM & KUTULAKIS, L.L.P., and file this Complaint against the defendants, Vincent D. Mellott and B-H Agency Realtors as follows: I. Plaintiffs, John and Jennifer Hammelbacher, live at 1005 Doubling Gap Road; Newville, Cumberland County, Pennsylvania. 2. Defendant Vincent D. MelloWs ("Mellott") employer is B-H Agency~Realtors, ("B-H Realtors"), a business operating in the Commonwealth of Pennsylvania with offices at 163 North Hanover Street, Carlisle, Chmberland County, Pennsylvania an~51 Big Spring Avenue, Newville, Cumberland County, Pennsylvania. 3. Defendant Vincent D. Mellott is employed as a real estate broker with B-H Realtors and resides at 6 Meadow Lane, Newville, Cumberland County, Pennsylvania. 4. Defendant B-H Realtors are responsible for the actions of Defendant Mellott through the doctrine of Respondeat Superior. 5. In March of 2000 Plaintiffs became interested in purchasing the property located at 1005 Doubling Gap Road, Newville, Cumberland .ounty, Pennsylvania ("subject property"). 6. The selling agency for the subject property was B-H Realtors. 7. The selling agent for the subject property was Vincent D. Mellott. 8. In late March of 2000, Plaintiffs asked Mellott and he accepted to act as a buyers' agent on Plaintiffs' behalf due to concems Plaintiffs had regarding observations of what appeared to be defects in the subject property. 9. Plaintiffs and Mellott reduced to writing their buyers' agency agreement, the original of which remains under the control of Mellott. 10. After retaining Mellott's services as a buyers' agent, Plaintiffs expressed their concerns to Mellott regarding observations made at the subject property; 11. Plaintiffs inquired into the feasibility ora second floor considering the observations in the subject property, particularly in the basetnent/foundation walls. 12. Mellott hired Gregory Lebo of Brehm-Lebo Engineering ("Lebo") to inspect the structural condition of the subject property. 13. On or about March 25, 2002, Lebo met with Mellott to observe the structural condition of the subject property. See, Engineer's Report attached as Exhibit B. 14. When Lebo met with Mellott on or about March 25, 2002, to observe the structural condition of the subject property, Lebo made con~ents to Mellott about the structural problems and corrective measures that should be taken in the subject property. 15. The engineer's report (Exhibit B) was completed on March 28, 2000. 16. A copy of the engineer's report was sent to Mellott via facsimile on or about March 28, 2000. 17. The engineer's report found the following: 2 a. Noticeable movement and horizontal crocks halfway up the rear wall (north side) and the right wall (east side). b. One inch of inward movement in the north wall. c. One half inch of inward movement in the east wall. d. Inadequate final grading caused the inward movement by allowing water to cumulate along the house, leading to a build up of extensive hydrostatic pressure between the basement/fotmdation walls. 18. The engineer's report recommended the following corrective measures to secure the walls for the rest of the life of the structure: a. A swale should be graded around the north and east sides of the subject property to divert water away from the subject property. b. The top four (4) feet of soil along the north and east walls should be excavated and backfilled with 2B stones. c. The north and east walls should be pushed back into a vertical position during the excavation process. d. Three (3) plasters should be built along the north wall and one (1) along the east wall. e. Installation of weep holes in the north and east walls and a footing drain tied into a sump pit. 19. The engineer's report did not opine that the foundation was suitable to accept a second floor. 20. Mellott failed to provide to Plaintiffs a copy of the engineer's report prior to their signing of the buyer's agreement. 21. Mellott failed to accurately explain the contents of the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. 22. Mellott did not memorize in writing to the Plaintiffs the contents of the engineering report. 23. Plaintiffs agreed to purchase the subject propew.( at a price that was within $2,500 of the seller's original asking price. 24. Mellott verbally misrepresented the contents of the engineer's report to the Plaintiffs. 25. Mellott verbally represented to Plaintiffs that the structure of subject property would not worsen. 26. Mellott possessed knowledge that the Engineer's Report contained information of a defect at the subject property. 27. The knowledge Mellott possessed about a material defect at the subject property would have prevented the Plaintiffs from purchasing the subject property at the original purchase price. 28. In reliance upon Mellott' s verbal misrepresentations, Plaintiffs did not request a reduced purchase price to reflect the tree extent of the defects. 29. In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption they could make a second story addition to the home. 30. In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption that the structure of the subject property would not worsen. 4 31. In reliance upon Mellott's verbal misrepresentations, Plaintiffs proceeded to settlement and purchased the subject property on August 31, 2000. 32. Since August 31, 2000 the defects included in the Engineer's Report have continually worsened. COUNT 1 INTENTIONAL MISREPRESENTATION (FRAUD) 33. Paragraphs one (1) through thirty-two (32) are incorporated herein as if fully set forth. 34. The elements of intentional misrepresentation are: a representation must be made which is material to the transaction at hand, the representation must be made falsely with knowledge of its falsity or recklessness as to whether il: is tree or false, the representation must be made with intent of misleading another into relying on it, the plaintiff must justifiably rely on the misrepresentation, and the resulting injury must be proximately caused by reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999). 35. Mellott made representations to Plaintiffs regarding the structural sotmdness of the said property. 36. Mellott's representations were material to the transaction of Plaintiffs purchasing the subject property. 37. Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is tree or false. 38. Mellott made said representations with the intent of misleading the Plaintiffs into relying on his representations. 39. Plaintiffs justifiably relied on Mellott's misrepresentation. 5 40. The Plaintiffs' injury was proximately caused by their reliance on Mellott's representations. WHEREFORE, based upon the Defendants' intentional misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interests and cost of prosecution in excess of $25,000. COUNT 2 NEGLIGENT MISREPRESENTATION 41. Paragraphs one (1) through forty (40) are incorporated herein as if fully set forth. 42. The elements of negligent misrepresentation are: a misrepresentation ora material fact, made under circumstances in which the misrepresenter ought to know its falsity, with an intent to induce another to act on it, and which results in injury to a party acting in justifiable reliance on the misrepresentation. Heritage Surveyors & Eng'r. Inc, 801 A.2d 1248, 1252 (Pa. Super. Ct. 2002). 43. Defendant Mellot~ made representations to Plaintiffs regarding the structural soundness of the subject property. 44. Mellort's representations were material to the transaction of Plaintiffs purchasing the subject property. 45. Mellott's representation was made under circumstances in which he ought to have known its falsity. 46. Mellott made the misrepresentations with an intent to induce Plaintiffs to act and/or rely on his representations. 47. Mellott's misrepresentations to Plaintiffs resulted in Plaintiffs' injury. 48. Plaintiffs justifiably relied on Mellott's misrepresentation. WHEREFORE, based upon the Defendants' negligent misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, interest, restitution, attorney fees, and costs of prosecution in excess of $25,000. COUNT 3 INTENTIONAL NONDISCLOSURE 49. Paragraphs one (1) through for~-cight (48) are incorporated herein as if fully set forth. 50. The elements of intentional nondisclosure are: the defendant must conceal a material fact, the representations must be made falsely with either knowledge of its falsity or recklessness as to whether it is tree or false, the representations must be made with the intent of misleading one to rely on it, plaintiff must justifiably rely on the misrepresentations, plaintiff's injury must be proximately cansed by reliance on the defendant's representations. Bortz v. Noon, 729 A.2d at 561. 51. Mellott concealed a material fact from the Plaintiffs regarding the structure of the subject property. 52. Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false. 53. Mellott's representations were made with the intent of misleading Plaintiffs to rely on his representations. 54. Plaintiffs justifiably relied on Mellott's misrepresentations. 7 55. Plaintiffs' injury was proximately caused by their reliance on Mellott's representations. WHEREFORE, based upon the Defendants' intentional nondisclosure, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest, and costs of prosecution in excess of $25,000. COUNT 4 BREACH OF FIDUCIARY DUTY 56. Paragraphs one (1) through fifty-five (55) are incorporated herein as if fully set forth. 57. A fiduciary duty exists when the relationship goes beyond reliance and into a relationship characterized by "overmastering influence" on one side or "weakness, dependence, or trust, justifiably reposed" on the other side. Etoll, Inc. v. Ellias/Savion Adver., Inc., 811 A.2d 10, 22 (Pa. Super. Ct. 2002). 58. An agency relationship is "a fiduciary one, and the agent is subject to a duty of loyalty to act only for the principal's benefit." Id. at 21. 59. Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf. 60. Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property. 61. Mellott and the Plaintiffs accepted and parties reduced their buyers' agency agreement to writing. The original of said agency agreement remains under the control of Mellott. 62. Plaintiffs were dependant on and trusted Mellott to disclose information regarding the subject property and to act in their best interests. 63. Mellott possessed an "overmastering influence" over Plaintiffs because within the agency relationship, he was the only party with access to the engineer's report. 64. Mellot breached his fiduciary duty by failing to disclose the engineer's report to Plaintiffs prior to their signing of the buyer's agreemem. WHEREFORE, based upon the Defendants' breach of fiduciary duty, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest and costs of prosecution in excess of $25,000. COUNT 5 VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW~ TITLE 73 P.S. §§ 201-2(4'1~v~ 201-2(4~(vii), 201-2(4)(xvii) 65. Paragraphs one (1) through sixty-four (64) are incorporated herein as if fully set forth. 66. P.S. § 201-2(4)(v) sets forth that representing th.at goods or services have certain approval, characteristics or uses or benefits that they do not have is an unfair or deceptive act or practice. 67. Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor. 68. While Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor, the engineering report sets out the subject could not withstand a second floor. See, Exhibit B. 69. Mellott represented to the Plaintiffs that the defects within the subject property were not likely to worsen. 70. 73 P.S. § 201-2(4)(vii) defines an unfair or deceptive act or practice as when a good or service is incorrectly represented to be of a "particular standard, quality or grade." 71. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as not worsen to over time. 72. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as to be able to withstand a second floor being added. 73. 73 P.S. § 201-2(4)(xvii) explains that engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding qualifies as an unfair or deceptive act or practice. 74. Mellott received the engineer's report, recast and conveyed the information to the Plaintiffs in a manner that created a misunderstanding with regard to the conclusions set forth in the engineer's report. 75. Mellott's conduct resulted in the Plaintiffs believing that the defects in the subject property were not serious enough to warrant a reduction in the purchase price or immediate repair. WHEREFORE, based upon the Defendants' violation of Unfair Trade Practices and Consumer Protection Law, the Plaintiffs respectfully re. quest this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attomey fees, costs, and treble damages in excess of $25,000. ABOM & KUTULAKIS, L.L.P. judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of $25,000. ABOM & KUT][JLAKIS, L.L.P. 36 g~outh Hanover Street Carlisle, PA 1:7013 Attorney for Defendant 11 VERIFICATION I hereby verify that the statements contained in this complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date Jo'~m ~tanuuelba~her, Plaintiff J~hit~r Hammet~acher, 'Plaintiff PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, (Plaintiff) VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, (Defendant) Civil Docket No.: 02-4921 & 03-2806 State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections Dated: Identify counsel who will argue case: a. for Plaintiff: John A. Abom, Esquire Abom& Kutulakis 36 South Hanover Street Carlisle, PA 170~3 b. for Defendant: Kirk S. Sohonage, Esquire Saidis, Shuff, Flower & Lindsay 26 W. High ~treet Carlisle, PA ~ 7013 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA : : CIVIL DOCKET NO.: 02-4921 & 03-2806 : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 10th day of July 2003, I, Erica R. Blackledge, law clerk, of Aborn & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT upon Kirk S. Sohonage, Esquire, by hand delivery at the following location: Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 ABOM & KUTULAKIS, L.L.P. Attorney for the Plaintiff Erica R. Blackled~e 36 South Hanover Street Carlisle, PA 17013 JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA CIVIL DOCKET NO.: 02-4921 & 03-2806 : : JURY TRIAL DEMANDED PETITION TO CONSOLIDATE DOCKET NUMBERS AND NOW, this Tenth day of July 2003, comes the plaintiffs, John Hammelbacher and Jennifer Hammelbacher by and through John A. Abom, Esquire of ABOM & KUTULAKIS, L.L.P., and file this Petition to Consolidate Docket Numbers as follows: 1. On October 9, 2002 Plaintiffs filed a Writ of Summons with the Cumberland County Court of Common Pleas (attached as Exhibit "A") with the Caption as follows: John Hammelbacher and Jennifer Hammelbacher (Plaintiffs) vs. Vincent Mellott and B-H Agency (Defendants). 2. Upon filing the Writ of Summons on October 9, 2002 the File Number 02- 4921 Civil Term was issued. 3. On June 16, 2003 Plaintiffs filed a Complaint w~th the Cumberland County Court of Common Plea (attached as Exhibit "B") with the Caption as follows: John Hammelbacher and Jennifer Hammelbacher (Plaintiffs) vs. Vincent D. Mellott and B-H Agency Realtors (Defendants). 4. Plaintiffs included the original docket number (02-4921) within the caption of the Complaint filed on June 16, 2003. However, at the time of filing, the Prothonotary's office issued an additional docket number (03-2816). 2 5. Plaimiffs' counsel spoke with Defendants' counsel who indicated he is not opposed to a consolidation of the two above-captioned docket numbers. 6. Plaintiffs respectfully requests that This Honorable Court remove the second docket number issued for this action (03-2806), and that hereafter the docket number 02- 4921 be used in this matter. WHEREFORE, the Plaintiffs pray that This Honorable Court will consolidate the both docket numbers issued in this action, and that the docket number 02-4921 be used hereafter to identify this claim. Respectfully Submitted, ABOM & KUTULAKIS, L.L.P. 36 South Hanover Street Carlisle, PA 17013 JOHN HAMIVlELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA CIVIL DOCKET NO.: 02-4921 & 03-2806 JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 10th day of July 2003, I, Erica R. Blackledge, law clerk, of Abom& Kutulakis, L.L.P., hereby certify that I did serve a tree and correct copy of the foregoing PETITION TO CONSOLIDATE DOCKET NUMBERS upon Kirk S. Sohonage, Esquire, by hand delivery at the following location: Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 ABOM & KUTULAKIS, L.L.P. Erica R. Blackledge 36 South Hanover Street Carlisle, PA 17013 4 Exhibit A IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Plaintiff & Address: John & Jennifer Hammelbacher 1005 Doubling Gap Road Newville, PA 17241 Defendants & Address: Vincent Mellott 163 North Hanover Street Carlisle, PA 17013 B-H Agency GMAC Realty 163 North Hanover Street Carlisle, PA 17013 : FileNo.: ~2~- /;{~/o2 I : Civil Action - Law : : WRIT OF SUMMONS You are notified that John & Jennifer Hammelbacher have commenced an action against yOU. Prothonotary Date: October 9, 2002 Deputy Prothonotary ABOM & KUTULAKIS, LLP 5 Attomey~or Plaintiff .... 8 South'Hanover Street/Suite 204 Carlisle, PA 17013 717-249-0900 Attorney ID#: 77961 Exhibit B 6 SOUTH HANOVEKST 717 249-0900 ax (717 24%3344 KUTULAKIS 717 232-95ll ATTORNEYS AT LAW JOHN HAMMELBACHER and JENNIFER HAMMELBACHER. Plaintiffs. IN THE COURT OF COMMON PLEAS CUMBER. LAND COUNTY PENNSYLVANIA VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. CIVIL DOCKET NO.: 02-4921 : JURY Ti~UAL DEMANDED COMPLAINT AND NOW, this Sixteenth day of June 2003, comes the plaintiffs, John Hammelbacher and Jennifer Hammelbacher by and through John A. Abom, Esquire of ABOM & KUTULAKIS, L.L.P., and file this Complaint against the defendants, Vincent D. Mellott and B-H Agency Realtors as follows: 1. Plaintiffs, John and Jennifer Hammelbacher, live at 1005 Doubling Gap Road., Newville, Cumberland County, Pennsylvania. 2. Defendant Vincent D. Mellott's ("Mellott") employer is B-H Agency'Realtors, ("B-H Realtors"), a business operating in the Commonwealth of Pennsylvania wi offices at 163 North Hanover Street, Carlisle, Chmberland County, Pennsylvania anc~ 51 Big Spring Avenue, Newville, Cumberland County, Pennsylvania. 3. Defendant Vincent D. Mellott is employed as a real estate broker with B-H Realtors and resides at 6 Meadow Lane, Newville, Cumberland County, Pennsylvania. 4. Defendant B-H Realtors are responsible for the actions of Defendant Mellott through the doctrine of Respondeat Superior. 5. In March of 2000 Plaintiffs became interested in purchasing the property located at 1005 Doubling Gap Road, Newville, Cumberland County, Pennsylvania ("subject property"). 6. The selling agency for the subject property was B-H Realtors. 7. The selling agent for the subject property was Vincent D. Mellott. 8. In late March of 2000, Plaintiffs asked Mellott and he accepted to act as a buyers' agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property. 9. Plaintiffs and Mellott reduced to writing their buyers' agency agreement, the original of which remains under the control of Mellott. 10. After retaining Mellott's services as a buyers' agent, Plaintiffs expressed their concerns to Mellott regarding observations made at the subject property: 11. Plaintiffs inquired into the feasibility of a second floor considering the observations in the subject property, particularly in the basement/foundation walls. 12. Mellott hired Gregory Lebo of Brehm-Lebo Engineering ("Lebo") to inspect the structural condition of the subject property. 13. On or about March 25, 2002, Lebo met with Mellott to observe the structural condition of the subject property. See, Engineer's Report attached as Exhibit B. 14. When Lebo met with Mellott on or about March 25, 2002, to observe the structural condition of the subject property, Lebo made comments to Mellott about the structural problems and corrective measures that should be taken in the subject property. 15. The engineer's report (Exhibit B) was completed on March 28, 2000. 16. A copy of the engineer's report was sent to Mellott via facsimile on or about March 28, 2000. 17. The engineer's report found the following: 2 a. Noticeable movement,and horizontal cracks halfway up the rear wall (north side) and the right wall (east side). b. One inch of inward movement in the north wall. c. One half inch of inward movement in the east wall. d. Inadequate final grading caused the inward movement by allowing water to cumulate along the house, leading to a build up of extensive hydrostatic pressure between the basement/foundation walls. 18. The engineer's report recommended the following corrective measures to secure the walls for the rest of the life of the structure: a. A swale should be graded around the north and east sides of the subject property to divert water away from the subject property. b. The top four (4) feet of soil along the north and east walls should be excavated and backfilled with 2B stones. c. The north and east walls should be pushed back into a vertical position during the excavation process. d. Three (3) plasters should be built along the north wall and one (1) along the east wall. e. Installation of weep holes in the north and east walls and a footing drain tied into a sump pit. 19. The engineer's report did not opine that the foundation was suitable to accept a second floor. 20. Mellott failed to provide to Plaintiffs a copy of the engineer's report prior to their signing of the buyer's agreement. 21. Mellott failed to accurately explain the contents of the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. 22. Mellott did not memorize in writing to the Plaintiffs the contents of the engineering report. 23. Plaintiffs agreed to purchase the subject property, at a price that was within $2,500 of the seller's original asking price. 24. Mellott verbally misrepresented the contents of the engineer's report to the Plaintiffs. 25. Mellott verbally represented to Plaintiffs that the structure of subject property would not worsen. 26. Mellott possessed knowledge that the Engineer's Report contained information of a defect at the subject property. 27. The knowledge Mellott possessed about a material defect at the subject property would have prevented the Plaintiffs from purchasing the subject property at the original purchase price. 28. In reliance upon Mellott's verbal misrepresentations, Plaintiffs did not request a reduced purchase price to reflect the true extent of the defects. 29. In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption they could make a second story addition to the home. 30. In reliance upon Mellott's verbal misrepresentations, Plaintiffs purchased the subject property under an assumption that the stmctare of the subject property would not worsen. 31. In reliance upon MelloWs verbal misrepresentations, Plaintiffs proceeded to settlement and purchased the subject property on August 31, 2000. 32. Since August 31, 2000 the &feets included in the Engineer's Report have continually worsened. COUNT 1 INTENTIONAL MISREPRESENTATION (FRAUD) 33. Paragraphs one (1) through thirty-two (32) are incorporated herein as if fully set forth. 34. The elements of intentional misrepresentation are: a representation must be made which is material to the transaction at hand, the representation must be made falsely with knowledge of its falsity or recklessness as to whether it is tree or false, the representation must be made with intent of misleading another into relying on it, the plaintiff must justifiably rely on the misrepresentation, and the resulting injury must be proximately caused by reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999). 35. Mellott made representations to Plaintiffs regarding the stmctural soundness of the said property. 36. MelloWs representations were material to the transaction of Plaintiffs purchasing the subject property. 37. Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false. 38. Mellott made said representations with the intent of misleading the Plaintiffs into relying on his representations. 39. Plaintiffs justifiably relied on Mellott's misrepresentation. 40. The Plaintiffs' injury was proximately caused by their reliance on Mellott's representations. WHEREFORE, based upon the Defendants' intentional misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interests and cost of prosecution in excess of $25,000. COUNT 2 NEGLIGENT MISREPRESENTATION 41. Paragraphs one (1) through forty (40) are incorporated herein as if fully set forth. 42. The elements of negligent misrepresentation are: a misrepresentation of a material fact, made under circumstances in which the misrepresenter ought to know its falsity, with an intent to induce another to act on it, and which results in injury to a party acting in justifiable reliance on the misrepresentation. Heritage Surveyors & Eng'r. Inc., 801 A.2d 1248, 1252 (Pa. Super. Ct. 2002). 43. Defendant Mellott made representations to Plaintiffs regarding the structural soundness of the subject property. 44. MelloWs representations were material to the transaction of Plaintiffs purchasing the subject property. 45. MelloWs representation was made under circun~stances in which he ought to have known its falsity. 46. Mellott made the misrepresentations with an intent to induce Plaintiffs to act and/or rely on his representations. 6 47. Mellott's misrepresentations to Plaintiffs resulted in Plaintiffs' injury. 48. Plaintiffs justifiably relied on Mellott's misrepresentation. WHEREFORE, based upon the Defendants' negligent misrepresentation, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, interest, restitution, attorney fees, and costs of prosecution in excess of $25,000. COUNT 3 INTENTIONAL NONDISCLOSURE 49. Paragraphs one (1) through forty-eight (48) are incorporated herein as if fully set forth. 50. The elements of intentional nondisclosure are: the defendant must conceal a material fact, the representations must be made falsely with either knowledge of its falsity or recklessness as to whether it is true or false, the representations must be made with the intent of misleading one to rely on it, plaintiff must justifiably rely on the misrepresentations, plaintiff's injury must be proximately caused by reliance on the defendant's representations. Bortz v. Noon, 729 A.2d at 561. 51. Mellott concealed a material fact from the Plaintiffs regarding the structure of the subject property. 52. Mellott's representations were made falsely with either knowledge of its falsity or recklessness as to whether it is true or false. 53. Mellott's representations were made with the intent of misleading Plaintiffs to rely on his representations. 54. Plaintiffs justifiably relied on MelloWs misrepresentations. 7 55. Plaintiffs' injury was proximately caused by their reliance on Mellott's representations. WHEREFORE, based upon the Defendants' intentional nondisclosure, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest, and costs of prosecution in excess of $25,000. COUNT 4 BREACH OF FIDUCIARY DUTY 56. Paragraphs one (1) through fifty-five (55) are incorporated herein as if fully set forth. 57. A fiduciary duty exists when the relationship goes beyond reliance and into a relationship characterized by "overmastering influence" on one side or "weakness, dependence, or trust, justifiably reposed" on the other side. Etoll, Inc. v. Ellias/Savion Adver., Inc., 811 A.2d 10, 22 (Pa. Super. Ct. 2002). 58. An agency relationship is "a fiduciary one, and the agent is subject to a duty of loyalty to act only for the principal's benefit." Id_~. at 21. 59. Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf. 60. Plaintiffs asked Mellott to act as their buyer's agent on Plaintiffs' behalf due to concerns Plaintiffs had regarding observations of what appeared to be defects in the subject property. 61. Mellott and the Plaintiffs accepted and parties reduced their buyers' agency agreement to writing. The original of said agency agreement remains under the control of Mellott. 62. Plaimiffs were dependant on and tmsted Mellott to disclose information regarding the subject property and to act in their best interests. 63. Mellott possessed an "overmastering influence" over Plaintiffs because within the agency relationship, he was the only party with access to the engineer's report. 64. Mellot breached his fiduciary duty by failing to disclose the engineer's report to Plaintiffs prior to their signing of the buyer's agreement. WHEREFORE, based upon the Defendants' breach of fiduciary duty, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, interest and costs of prosecution in excess of $25,000. COUNT 5 VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW~ TITLE 73 P.S. §§ 201-2(4){v) 201-2{4)(vii), 201-2{4)(xvii} 65. Paragraphs one (1) through sixty-four (64) are incorporated herein as if fully set forth. 66. P.S. § 201-2(4)(v) sets forth that representing that goods or services have certain approval, characteristics or uses or benefits that they do not have is an unfair or deceptive act or practice. 67. Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor. 68. While Mellott represented to Plaintiffs that the subject property had the use and/or benefit of withstanding a second floor, the engineering report sets out the subject could not withstand a second floor. See, Exhibit B. 69. Mellott represented to the Plaintiffs that the defects within the subject property were not likely to worsen. 70. 73 P.S. § 201-2(4)(vii) defines an unfair or deceptive act or practice as when a good or service is incorrectly represented to be of a "particular standard, quality or grade." 71. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as not worsen to over time. 72. Mellott misrepresented to Plaintiffs that the subject property was of particular standard, quality or grade so as to be able to withstand a second floor being added. 73. 73 P.S. § 201-2(4)(xvii) explains that engaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding qualifies as an unfair or deceptive act or practice. 74. Mellott received the engineer's report, recast and conveyed the information to the Plaintiffs in a manner that created a misunderstanding with regard to the conclusions set forth in the engineer's report. 75. Mellott's conduct resulted in the Plaintiffs believing that the defects in the subject property were not serious enough to warrant a reduction in the purchase price or immediate repair. WHEREFORE, based upon the Defendants' violation of Unfair Trade Practices and Consumer Protection Law, the Plaintiffs respectfully request this court to enter judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs, and treble damages in excess of $25,000. ABOM & KUTULAKIS, L.L.P. judgment against the Defendants for actual damages, punitive damages, restitution, attorney fees, costs and treble damages in excess of $25,000. ABOM & KUTULAKIS, L.L.P. Joh~A. Ab0~'~-~ 36 Youth Hanover Street Carlisle, PA 17013 Attorney for Defendant 11 VERIFICATION I hereby verify that the statements contained in this complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date Jo/m'Hanunelbacher, Plaintiff ammet~acher, 'Plaintiff JOHN HAMMELBACHER and JENNIFER HAMMELBACHER, Plaintiffs, VS. VINCENT D. MELLOTT and B-H AGENCY REALTORS, Defendants. IN THE C, OURT OF COMMON PLEAS CUMBERLAND COUNTY pENNSYLVANIA / CIVIL DOCKET NO.: 02-4921 & 03-2806 : JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this ] ~ day of July, 2003 upon consideration of the attached Petition for Consolidation of Docket Numbers and upon learning that counsel for all parties are in agreement that the two above-referenced docket numbers should he consolidated, it is hereby directed that the docket number 02-4921 be used hereafter in this m~ Date: JOHN HAMMELBACHER AND JENNIFER HAMMELBACHER, PLAINTIFFS · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA VINCENT D. MELLOTT AND B-H AGENCY REALTORS, DEFENDANTS : 02-4921 CIVIL TERM BE___FORE BAYLEY J, AND GUI._DO J: ORDER OF COURT AND NOW, this _ ~_~. _day of Augus'l, 2003, the preliminary objections of defendants to plaintiffs' compliant, ARE DISMISSED. ~d g a~--~. Sayley~J. John A. Aborn, Esquire For Plaintiffs Kirk S. Sohonage, Esquire For Defendants :sal SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA John Hammelbacher and Jennifer Hammelbacher, Plaintiffs Vincent D. Mellott and B-H Agency Realtors, Defendants In the Court of Common Pleas Cumberland County, Pennsylvania Civil Docket No.: 02-4921 PRAECIPE TO WITHDRAW AND DISMISS To the Prothonotary of Cumberland County: Kindly withdraw and dismiss with prejudice the above-noted action based upon a mutual agreement between the parties. Carlisle, Pennsylvania 17013 Phone: 717.249.0900 Fax: 717.249.3344 SAIDIS SHUFF FLOWER & L1NDSAY 26 West High Street Carlisle, Pennsylvania 17013 Phone: 717.243.6222 Fax: 717.243.6510